Daily Development for Wednesday, August 24

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

EMINENT DOMAIN; POWER TO CONDEMN; PUBLIC USE: State may exercise power of eminent domain to condemn property necessary for purely public components of public/private development, even when this involves condemning entire site for a five story building in which only the fourth floor will be devoted to public purposes.

 State of Washington ex rel. Washington State Convention and Trade Center v. Evans, 966 P.2d 1252 (Wash. 1998).

The Washington state legislature approved funding for an expansion of the state convention center on the condition that the convention center board, a state entity, raise $15 million in outside funding. The board approved an expansion plan which would consist of an expanded convention center four stories above ground level, with lower levels available for sale to private users. The board entered into an agreement with a private developer who paid $15 million and received, among other things, fee title to the ground level space.

The plan required condemnation of various properties. The property owners challenged the condemnation on the ground that the state was impermissibly condemning private property for private use. The trial court approved of the condemnation and the property owners appealed.

The Washington Supreme Court affirmed. The court held that the state was taking no more land than was necessary to build the wholly public part of the development, which would take up the entire area of the land to be condemned. The court further held that as a matter of law, the private uses of the lower levels was merely incidental to the public use of the fourth level and did not violate the prohibition against condemnation for private purposes.

Note that, because of the need for "pillarless" construction for the convention facility, there could be no construction above the fourth level.

Comment 1: The holding is not as bizarre as might first appear. The existing convention center's display space was already four stories high on this side, so the construction of the new building did match up with the convention center's existing configuration, creating "surplus" space below the convention center expansion. The convention center might have expanded in other directions and not have created so much surplus space underneath, but the court notes that there were sound reasons other than raising money that could have supported the civic decision to move in this direction, although the court admits that the opportunity to raise funds by opening up three floors of private usage was definitely one incentive to expand on this side.

Comment 2:  Nevertheless, as two dissenters point out in a stinging dissenting opinion that opens by claiming the majority has repealed the "private purposes" prohibition in the Washington Constitution, it is difficult to view the condemnation of a parcel for purposes that are 75% unrelated to a valid public purpose as satisfying any logical "public use" standard. It is tantamount to telling the State tat it can go out and buy land by condemnation and resell it at a profit in order to raise money for public purposes. The argument is that where the primary use of the property following construction will be private, then the private use must itself satisfy the public purpose standard (such as for urban renewal, stadium, or the like).

The dissent just missed out on its political reality luncheon. In the bizarre world of judicial deference to political issues in the area of urban renewal, this level of judicial permissiveness is the norm.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 16, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.