As a Seattle eminent domain attorney and Washington condemnation attorney I deal with a lot of people who are having their property taken by eminent domain. It is never an easy process, you have to fight tooth and nail for every penny, and it is always rewarding to see the light at the end of the tunnel, to see the landowner get the money they deserve, and to resolve a dispute leaving my clients happy.
But in doing all of this it is important to remember that the sale of property is never an exact science, that in many cases neither side is going to get everything they want or think they need. Just like with the purchase of an entire house or building or car or anything else, there is no precise price, and in many cases the offers of the parties set the high and low points, with the final agreed to price somewhere in the middle. It is important for landowners having their Washington property taken through eminent domain to understand they are not going to get what is asked for in the initial counteroffer (condemning authorities for the most part recognize they are almost always going to have to come up in price for just compensation). What they are doing is setting a ceiling, an absolute height in just compensation, that might be reached in the perfect scenario.
Many times we, as eminent domain attorneys, need to remember to temper client expectations, to remind them that although our theories and arguments sound great in discussion, when the rubber hits the road some will either be inadmissible or will be seen as an attempt to get money that is not reasonable. In the end, it is likely the landowners will have to come down from their initial counteroffer and the government will have to come up, until the parties reach a place they are both comfortable with. So, remember to take that into account when negotiating with the condemning authority and when strategizing with your client. It can make a big difference in everyone walking away feeling satisfied.
If your property is being taken by the government in Washington State by eminent domain, whether it be Seattle, Renton, Spokane, Kennewick, Olympia, Tacoma, Federal Way, Kent, Everett, Woodinville, Redmond, Kirkland, Yakima, Bellevue, Auburn, Puyallup, Vancouver, Mukilteo, Edmonds, West Seattle, or Pullman, you need someone working on your side.
Showing posts with label WA State Eminent Domain Examples. Show all posts
Showing posts with label WA State Eminent Domain Examples. Show all posts
Monday
Washington Eminent Domain Lawyer | Sea-Tac Third Runway Causing Problems
It's sad but true, that in this day and age, sometimes life just isn't fair. Sometimes the rules work against you, and sometimes, despite your best efforts, you've just drawn the short straw. That is what appears to have happened for numerous residents affected by the new third airport runway just put into service by the Port of Seattle at Sea-Tac airport in between Seattle and Tacoma, Washington.
I stumbled upon this blog entry, which detailed a meeting between numerous land owners and a few attorneys (specializing in class actions and not property or land use law, I might point out) to discuss the problems they've been experiencing and see if there is anything to be done about it. From that meeting I think they identified two possible causes of action they believe may be available to them - inverse condemnation and nuisance. Whatever the case, it appears that at least they are resigned to the fact that the runway is here to stay.
Although I am not a Washington eminent domain lawyer just yet, I am familiar with inverse condemnation (essentially eminent domain without the government wanting to pay for the land) and nuisance law generally. And I hate to say this, but I think the landowners are going to have a hard time winning this action, particularly when it comes to the inverse condemnation claim.
As just a little background, Washington inverse condemnation is a cause of action whereby a landowner asserts that a governmental entity (in this case the Port of Seattle) has, through its actions, deprived the property owner of all useful uses of the property, rendering it worthless. In this case, the landowners believe that the Port of Seattle, by installing the third runway at Sea-Tac Airport, have deprived them of all uses of their property. They mention noise and jet fuel particles as the two primary reasons for their claims (I never knew jet fuel left particles). The problem in this case, however, is that it doesn't appear as though they have any evidence that their property is useless. It is still being used for its highest and best use - residential housing - and still has people inhabiting it. Though the value may have dropped, even tremendously, because of the third runway, their property is not useless, and the owners have not been deprived of use of their property (technically, remember, this is through the rule of law, not the rule of common sense - they don't always match up).
Nuisance, straight from Wikipedia, is, under the common law, the theory that persons in possession of real property (either land owners or tenants) are entitled to the quiet enjoyment of their lands. If a neighbor interferes with that quiet enjoyment, either by creating smells, sounds, pollution or any other hazard that extends past the boundaries of the property, the affected party may make a claim in nuisance. The kicker, however, is that the quiet enjoyment must rise above the merely aesthetic, and must be an expected part of the quiet enjoyment of the property. Here, the property owners again refer to noise and jet fuel particles as the basis for their Seattle inverse condemnation action or their Tacoma inverse condemnation action. The problem I see here is that their houses have always been near an airport, and they must have purchased the house knowing that airplanes would probably be flying overhead. Were they ready for the volume of planes or the additional runway? Probably not. But that is going to be the Port of Seattle's argument, and from a legal standpoint it is at least decent.
I don't know what is going to happen when SeaTac residents sue the Port of Seattle over their third runway, but I'm sure it will happen eventually. Although this isn't technically about Washington eminent domain, it is close enough I thought I'd throw it in here and talk about it. Inverse condemnation and eminent domain run hand in hand. I am rooting for the landowners here, but as I mentioned in the opening paragraph, sometimes life just isn't fair.
If your property is being taken by the government in Washington State, whether it be Seattle, Renton, Spokane, Kennewick, Olympia, Tacoma, Federal Way, Kent, Everett, Woodinville, Redmond, Kirkland, Yakima, Bellevue, Auburn, Puyallup, Vancouver, Mukilteo, Edmonds, West Seattle, or Pullman, you need someone working on your side.
I stumbled upon this blog entry, which detailed a meeting between numerous land owners and a few attorneys (specializing in class actions and not property or land use law, I might point out) to discuss the problems they've been experiencing and see if there is anything to be done about it. From that meeting I think they identified two possible causes of action they believe may be available to them - inverse condemnation and nuisance. Whatever the case, it appears that at least they are resigned to the fact that the runway is here to stay.
Although I am not a Washington eminent domain lawyer just yet, I am familiar with inverse condemnation (essentially eminent domain without the government wanting to pay for the land) and nuisance law generally. And I hate to say this, but I think the landowners are going to have a hard time winning this action, particularly when it comes to the inverse condemnation claim.
As just a little background, Washington inverse condemnation is a cause of action whereby a landowner asserts that a governmental entity (in this case the Port of Seattle) has, through its actions, deprived the property owner of all useful uses of the property, rendering it worthless. In this case, the landowners believe that the Port of Seattle, by installing the third runway at Sea-Tac Airport, have deprived them of all uses of their property. They mention noise and jet fuel particles as the two primary reasons for their claims (I never knew jet fuel left particles). The problem in this case, however, is that it doesn't appear as though they have any evidence that their property is useless. It is still being used for its highest and best use - residential housing - and still has people inhabiting it. Though the value may have dropped, even tremendously, because of the third runway, their property is not useless, and the owners have not been deprived of use of their property (technically, remember, this is through the rule of law, not the rule of common sense - they don't always match up).
Nuisance, straight from Wikipedia, is, under the common law, the theory that persons in possession of real property (either land owners or tenants) are entitled to the quiet enjoyment of their lands. If a neighbor interferes with that quiet enjoyment, either by creating smells, sounds, pollution or any other hazard that extends past the boundaries of the property, the affected party may make a claim in nuisance. The kicker, however, is that the quiet enjoyment must rise above the merely aesthetic, and must be an expected part of the quiet enjoyment of the property. Here, the property owners again refer to noise and jet fuel particles as the basis for their Seattle inverse condemnation action or their Tacoma inverse condemnation action. The problem I see here is that their houses have always been near an airport, and they must have purchased the house knowing that airplanes would probably be flying overhead. Were they ready for the volume of planes or the additional runway? Probably not. But that is going to be the Port of Seattle's argument, and from a legal standpoint it is at least decent.
I don't know what is going to happen when SeaTac residents sue the Port of Seattle over their third runway, but I'm sure it will happen eventually. Although this isn't technically about Washington eminent domain, it is close enough I thought I'd throw it in here and talk about it. Inverse condemnation and eminent domain run hand in hand. I am rooting for the landowners here, but as I mentioned in the opening paragraph, sometimes life just isn't fair.
If your property is being taken by the government in Washington State, whether it be Seattle, Renton, Spokane, Kennewick, Olympia, Tacoma, Federal Way, Kent, Everett, Woodinville, Redmond, Kirkland, Yakima, Bellevue, Auburn, Puyallup, Vancouver, Mukilteo, Edmonds, West Seattle, or Pullman, you need someone working on your side.
Thursday
Washington State Eminent Domain | Severance Damages Explained
In last few posts I've discussed several different issues regarding Washington State eminent domain and how landowners can get more money for their property taken by eminent domain. The key thing to remember is that condemning authorities have someone on their side working for them, and you should too. Eminent domain is complicated, and you need a trusted ally.
Let me give you an example of how complicated the Washington State eminent domain process can be (and how much help having someone working for you can pay off). There was a family, let's call them the Smiths, who where having their property taken by eminent domain, in, for purposes of example only, Seattle. Now, this property didn't sit in Seattle proper, but right on the outskirts. The property consisted of 40 acres, rectangular in shape, and was used for agricultural purposes. The west property line adjoined the property line of the current highway 99 just as it left Seattle (remember this is hypothetical).
At some point the city of Seattle decided it needed to re-align highway 99 so that it no longer had any stop lights or stop signs. The only way to get on and off after this realignment was finished would be with on and off ramps - more like an expressway than a state highway. To do this Seattle went around and through a neighborhood where the design engineers decided it best fit. This ended up putting the new highway right through the middle of the Smith's property (called a severance in eminent domain speak), leaving 12 acres on one side and 14 on the other.
Although the Smith's were devastated that the new highway alignment went right through their property and that their Seattle land would be taken by eminent domain if they didn't settle, they were confident the city would make them a good offer for their property, including the loss in value to the property they would have left, since once the new highway was built it would be very hard to continue farming the land (remember there is no way to get across the highway from one part of the property to the other).
Normally appraisers don't have to account for the loss in value to any remaining property, much less one that has been cut in half. Traditionally they are tasked with determining the fair market value of the property to be taken. This means figuring out what a willing buyer and a willing seller in an open and competitive market would pay for the property. But in this case it is more complicated because of the severance.
In my experience, the way the property should be valued is to look at what the entire property would have been worth before the eminent domain taking, and then look at what the property remaining after the eminent domain taking, subtract the two, and learn your amount of just compensation (called a before and after analysis). But all too often appraisers will approach determining the value of the property after the taking by assuming the property owner would sell of the property to two different owners - one on one side of the new road and one on the other. And that may well be the case, but the appraiser is supposed to assume the property would be sold to one person. If you think about it this makes the property remaining much more valuable than if the Smiths had to sell their severed property to one owner (remember there is no way to get across the road from one property to another).
In my hypothetical, this is exactly what happened to the Smiths. The appraiser overvalued the remaining property, extremely lowering Seattle's offer of just compensation (the appraiser found ZERO damages to the remainder property). When the Smiths saw the offer from the city, they knew it was far too low. They knew the property they had left would be worthless. So they did what any prudent landowner should - they got help with their eminent domain taking. And what was the result? A substantially increased settlement of just compensation, with their property valued the way it was supposed to have been at the very beginning.
Let me give you an example of how complicated the Washington State eminent domain process can be (and how much help having someone working for you can pay off). There was a family, let's call them the Smiths, who where having their property taken by eminent domain, in, for purposes of example only, Seattle. Now, this property didn't sit in Seattle proper, but right on the outskirts. The property consisted of 40 acres, rectangular in shape, and was used for agricultural purposes. The west property line adjoined the property line of the current highway 99 just as it left Seattle (remember this is hypothetical).
At some point the city of Seattle decided it needed to re-align highway 99 so that it no longer had any stop lights or stop signs. The only way to get on and off after this realignment was finished would be with on and off ramps - more like an expressway than a state highway. To do this Seattle went around and through a neighborhood where the design engineers decided it best fit. This ended up putting the new highway right through the middle of the Smith's property (called a severance in eminent domain speak), leaving 12 acres on one side and 14 on the other.
Although the Smith's were devastated that the new highway alignment went right through their property and that their Seattle land would be taken by eminent domain if they didn't settle, they were confident the city would make them a good offer for their property, including the loss in value to the property they would have left, since once the new highway was built it would be very hard to continue farming the land (remember there is no way to get across the highway from one part of the property to the other).
Normally appraisers don't have to account for the loss in value to any remaining property, much less one that has been cut in half. Traditionally they are tasked with determining the fair market value of the property to be taken. This means figuring out what a willing buyer and a willing seller in an open and competitive market would pay for the property. But in this case it is more complicated because of the severance.
In my experience, the way the property should be valued is to look at what the entire property would have been worth before the eminent domain taking, and then look at what the property remaining after the eminent domain taking, subtract the two, and learn your amount of just compensation (called a before and after analysis). But all too often appraisers will approach determining the value of the property after the taking by assuming the property owner would sell of the property to two different owners - one on one side of the new road and one on the other. And that may well be the case, but the appraiser is supposed to assume the property would be sold to one person. If you think about it this makes the property remaining much more valuable than if the Smiths had to sell their severed property to one owner (remember there is no way to get across the road from one property to another).
In my hypothetical, this is exactly what happened to the Smiths. The appraiser overvalued the remaining property, extremely lowering Seattle's offer of just compensation (the appraiser found ZERO damages to the remainder property). When the Smiths saw the offer from the city, they knew it was far too low. They knew the property they had left would be worthless. So they did what any prudent landowner should - they got help with their eminent domain taking. And what was the result? A substantially increased settlement of just compensation, with their property valued the way it was supposed to have been at the very beginning.
Monday
Washington State Eminent Domain | The Eminent Domain Process
If you are reading this, your Seattle, Olympia, Spokane, Yakima, Tacoma, or other Washington State property is probably being taken through the process of eminent domain. And although the acquisition agents representing the governmental agencies should have given you some information on the process, it is probably still a little overwhelming, and you might still have questions. Hopefully this answers some of your basic questions about losing your Washington State property to eminent domain.
As has already been discussed, the condemning authority's have professionals on their side helping them to get your property, and property owners should have professionals helping them too. Losing your land to eminent domain is a trying process, and you not only need help to get the most money for your land, but having helps actually tends to result in more money for your condemned land.
This process is similar to the process followed when you bought your property. Often a simple title search is completed to find out who owns the property, and the results are then inputted into a database identifying you as the property owner and assigning your land a parcel number. The title work will often also reveal any leases, mineral or otherwise, clouding the title of the property. If there are other property interest holders everyone will need to agree to the sale price (and the distribution of money) before a final agreement will be reached.
The first step, generally, in the appraisal process, is presenting the "problem" to the appraiser. A funny thing about this part of the process is that appraisers generally adhere to the rules and regulations prescribed by USPAP, the Uniform Standards of Professional Appraisal Practice. The only problem with that is that the rules relating to Washington State eminent domain valuation and just compensation is that often those rules go against the traditional practices of appraisers. Many times appraisers don't apply these rules when the initial appraisal is done, this can result in a much lower valuation should occur.
For example, the rule regarding property that is only partially taken is that you first determine the value of the entire property and then you value the value of the remaining property (including any loss in value occurring as a result of the loss of the property). So, if you have a large parcel of property in Spokane or Kinnewick, say 80 acres, and a new highway alignment is going to cut that right in half, what you will often find with an appraiser is that they will not attribute any loss in value to the remaining property. From their end, the remaining property is more value because it is now two parcels that can be sold of individually. But in truth there is probably substantial damage to the remainder, because you don't look at selling both halves separate, but what you could sell that land in Spokane County as a whole, with a highway running right through it.
As you might guess, if the appraiser messes this up, your property will be substantially undervalued. This, among other things, is why you should hire an expert to review your offer of just compensation so you can get the most money for your property taken by eminent domain.
When I worked for a government agency as their eminent domain attorney I ran into this problem all the time. I knew the weaknesses of our appraisals, and if landowner's hired someone experienced in eminent domain, they would soon see the weaknesses of our appraisal.
Once the offer is given to you, the negotiation process begins. This, in some cases, can include relocation benefits (generally if your house or business is being taken through eminent domain), but it generally includes a discussion regarding the value of the property and the damage accruing to the remainder. And make no mistake, there is a lot of room to negotiate the sale of your property to the government.
As has already been discussed, the condemning authority's have professionals on their side helping them to get your property, and property owners should have professionals helping them too. Losing your land to eminent domain is a trying process, and you not only need help to get the most money for your land, but having helps actually tends to result in more money for your condemned land.
Washington State Eminent Domain Process Begins with Title Work
Assuming the condemning authority has determined the amount of extra land it needs for its project, the next step it takes is to find out for sure who owns the property, if there are any tenants on the property, and if there are any leases (mineral or otherwise on the property), so they can make sure the right people are paid for the property (and so they make sure they get the property interest they want).This process is similar to the process followed when you bought your property. Often a simple title search is completed to find out who owns the property, and the results are then inputted into a database identifying you as the property owner and assigning your land a parcel number. The title work will often also reveal any leases, mineral or otherwise, clouding the title of the property. If there are other property interest holders everyone will need to agree to the sale price (and the distribution of money) before a final agreement will be reached.
Washington State Eminent Domain Process Part II - Appraisal
This is the meat of the entire process. A good appraisal results in you getting the money you deserve for your property. A bad appraisal results in you leaving money on the table that is rightfully yours (there is never a time when you get more money than you deserve from the appraisal - it just doesn't happen).The first step, generally, in the appraisal process, is presenting the "problem" to the appraiser. A funny thing about this part of the process is that appraisers generally adhere to the rules and regulations prescribed by USPAP, the Uniform Standards of Professional Appraisal Practice. The only problem with that is that the rules relating to Washington State eminent domain valuation and just compensation is that often those rules go against the traditional practices of appraisers. Many times appraisers don't apply these rules when the initial appraisal is done, this can result in a much lower valuation should occur.
For example, the rule regarding property that is only partially taken is that you first determine the value of the entire property and then you value the value of the remaining property (including any loss in value occurring as a result of the loss of the property). So, if you have a large parcel of property in Spokane or Kinnewick, say 80 acres, and a new highway alignment is going to cut that right in half, what you will often find with an appraiser is that they will not attribute any loss in value to the remaining property. From their end, the remaining property is more value because it is now two parcels that can be sold of individually. But in truth there is probably substantial damage to the remainder, because you don't look at selling both halves separate, but what you could sell that land in Spokane County as a whole, with a highway running right through it.
As you might guess, if the appraiser messes this up, your property will be substantially undervalued. This, among other things, is why you should hire an expert to review your offer of just compensation so you can get the most money for your property taken by eminent domain.
Washington State Eminent Domain Process Part III The Offer and Negotiation
Once the appraisal is complete, the condemning authority will put together an offer of just compensation for your property and present it to you. At this time you should do one thing - ask for a copy of the appraisal. They don't have to give it to you, and sometimes they won't. But if they do it provides valuable information for you to get more money for your land. This is important because the key to getting the most money for your property taken by eminent domain is breaking down the government's appraisal. This means it is not helpful to get a separate appraisal of your condemned property. If you get an appraisal, the condemning authority will do exactly what I would do if hired by you - cut up the appraisal.When I worked for a government agency as their eminent domain attorney I ran into this problem all the time. I knew the weaknesses of our appraisals, and if landowner's hired someone experienced in eminent domain, they would soon see the weaknesses of our appraisal.
Once the offer is given to you, the negotiation process begins. This, in some cases, can include relocation benefits (generally if your house or business is being taken through eminent domain), but it generally includes a discussion regarding the value of the property and the damage accruing to the remainder. And make no mistake, there is a lot of room to negotiate the sale of your property to the government.
Friday
Washington State Eminent Domain Example | Federal Way Stormwater Retention Facility
I was glancing through the paper a week or so ago and saw a story that reminded me of why I love helping Washington State property owners negotiate eminent domain takings. Reported in the Federal Way Mirror, it appears as though the officials of Federal Way, Washington want to build a regional stormwater facility, presumably to capture the runoff from storm water that has been created as a result of all of the development in the area.
Because the city knows it needs this facility and will be building it in the relatively near future, Federal Way has determined it is necessary to use its power of eminent domain to get the property needed for the facility. This means that at least five property owners are facing the loss of some of their property in exchange for just compensation.
As you can see from the article, however, things have not been going as smoothly as one might have hoped. Although some of the property owners don't feel Federal Way needs all of the land it is asking for (an issue completely separate from just compensation and best handled by a Washington eminent domain attorney) a major problem is the amount of just compensation being offered for the property.
The story notes that when Federal Way initially contacted one of the landowners and presented the offer of just compensation the offer was for a measly $2,500. This was supposed to be compensation for the property Federal Way was taking as well as any damages the remaining property as a result of the take. After the property owner balked at the offer it was magically raised to $16,400! And that was without any help.
With a little more work, however, they may have been able to get much more. Generally, it is not enough for the property owner in this instance to simply tell Federal Way that his remaining property is going to be worth less after they take what they need. He needs to show them. That often includes finding comparable sales, reading and evaluating zoning ordinances, and combining all of the information gathered into a cohesive, persuasive presentation to the city.
Because the city knows it needs this facility and will be building it in the relatively near future, Federal Way has determined it is necessary to use its power of eminent domain to get the property needed for the facility. This means that at least five property owners are facing the loss of some of their property in exchange for just compensation.
As you can see from the article, however, things have not been going as smoothly as one might have hoped. Although some of the property owners don't feel Federal Way needs all of the land it is asking for (an issue completely separate from just compensation and best handled by a Washington eminent domain attorney) a major problem is the amount of just compensation being offered for the property.
The story notes that when Federal Way initially contacted one of the landowners and presented the offer of just compensation the offer was for a measly $2,500. This was supposed to be compensation for the property Federal Way was taking as well as any damages the remaining property as a result of the take. After the property owner balked at the offer it was magically raised to $16,400! And that was without any help.
With a little more work, however, they may have been able to get much more. Generally, it is not enough for the property owner in this instance to simply tell Federal Way that his remaining property is going to be worth less after they take what they need. He needs to show them. That often includes finding comparable sales, reading and evaluating zoning ordinances, and combining all of the information gathered into a cohesive, persuasive presentation to the city.
Tuesday
WA State Eminent Domain | Olympia WA Property Appraised Too Low
Just read an interesting article out of Olympia, Washington about a brewery owner that won his fight for just compensation, receiving well more than the city's initial appraisal and offer. This is a great example of how expertise in Washington State eminent domain processes and procedures can really make a difference in the outcome of the determination of just compensation for your property.
In this case, three cities, Olympia, Tumwater, and Lacey City decided they needed the water rights the property owner held to divide up between themselves for the citizens of their cities. The original offer of just compensation, for the water rights and 18 acres of land, was 5.3 million dollars. The major point of contention for the property owner was the valuation of the water rights, which, as you can imagine, in this day in age hold a tremendous amount of value (water rights essentially allow the owner the right to water out of a stream or river). After a lot of negotiation, and eventually a mediation (a process that generally takes place after a condemnation or eminent domain action has been filed in court)the parties agreed the property owner should be paid approximately $750,000 more, a substantial sum of money.
This case is an example of why landowners need experienced professionals on their side to review the state's and city's appraisals and offers of just compensation. In the instance above, for example, if the property owner would have called for help immediately after receiving Olympia's offer of just compensation we would have reviewed the offer, conducted some preliminary research, and advised the property owner on how to proceed.
In all likelihood there would have several rounds of negotiations to see if both sides could reach an agreement on the amount of just compensation (condemning authorities are often substantially below what the actual fair market value of the property is).
In this case, three cities, Olympia, Tumwater, and Lacey City decided they needed the water rights the property owner held to divide up between themselves for the citizens of their cities. The original offer of just compensation, for the water rights and 18 acres of land, was 5.3 million dollars. The major point of contention for the property owner was the valuation of the water rights, which, as you can imagine, in this day in age hold a tremendous amount of value (water rights essentially allow the owner the right to water out of a stream or river). After a lot of negotiation, and eventually a mediation (a process that generally takes place after a condemnation or eminent domain action has been filed in court)the parties agreed the property owner should be paid approximately $750,000 more, a substantial sum of money.This case is an example of why landowners need experienced professionals on their side to review the state's and city's appraisals and offers of just compensation. In the instance above, for example, if the property owner would have called for help immediately after receiving Olympia's offer of just compensation we would have reviewed the offer, conducted some preliminary research, and advised the property owner on how to proceed.
In all likelihood there would have several rounds of negotiations to see if both sides could reach an agreement on the amount of just compensation (condemning authorities are often substantially below what the actual fair market value of the property is).
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