Eminent domain hard to reverse: Everett (WA) Herald, 6/11/06

By James McCusker

It was the writer Dominick Dunne, I believe, who first noted that the attitude toward the Menendez brothers, both in the courtroom and in Los Angeles society, had changed in response to one word: reloaded.

The two brothers had repeatedly shot their mother and father at their family home in Beverly Hills. The mother somehow survived the initial attack. When the jury heard that one of the brothers then got more ammunition and reloaded the shotguns to finish the job, the character of the trial changed completely.

In our justice system we take into account that we are not always rational, judicious beings. Sometimes we say and do things in the heat of the moment that we wouldn't say and do otherwise. More importantly, we make a distinction between an action taken in the grip of some emotion or in instinctive response to an event, and one taken when there is time to reflect and consider.

The Seattle Monorail Project was not pressed for time. As part of the development plan, the Monorail Project had used eminent domain proceedings to acquire some of the real estate it needed for the elevated rail line. In these proceedings, a government agency exercises its right to take property, provided that the owners are compensated for the fair market value of their holdings.

After the monorail project was rejected by the voters last autumn - the history of voter preferences on this project is a story in itself - the project managers decided to dispose of the property that had been acquired.

Instead of selling it back to the original owners, at least to those owners who wanted their property back, the project managers decided to sell the parcels at public auction. Actually, by their reckoning it wasn't much of a decision, for they believed that the law gave them no choice; it required them to do so.

Bear in mind, though, that there was no unreasonable pressure being applied for an immediate decision on this matter. There were no angry villagers with torches stomping around outside the building. The project management had time to reflect and consider its actions.

It is difficult to imagine, then, why they chose not to do the right thing.

Instead of selling the property to the highest bidder, there were two other options, either of which would have made more sense from the standpoint of logic, of law, of economics, of fairness and of equity.

Clearly the right thing to do was to return the property to the owners from whom it had been taken. The monorail project management believed that the law would not permit a sell-back but only a public auction. Still, with time to reflect, they should have considered that nothing in the law prohibited them from leasing it to the previous owners temporarily while the project management sought legislative relief to sell it back. That was the first do-right option.

Option two was to consider the fact that the public auction itself contained elements that had already violated the economic and possibly the legal foundations of eminent domain. Whatever its faults and limitations, eminent domain is based on the idea of just compensation for any property seized. Seizing property for public use was never intended to be a profit-making enterprise - at least since Henry VIII.

If a public auction is authorized because management believes that it will net the government more money than selling the property back to the owner, this is irrefutable evidence that the property owner was not paid full market value. This was not fair compensation.

There are possible exceptions, of course. Sometimes in particularly large projects property is taken and held for a considerably long time - many years, even decades in some cases. Real estate values can change dramatically in such situations.

But this was not the case with the monorail project, whose ill-starred life was mercifully brief. Moreover, a considerable amount of the property value increases that did occur were caused by city actions, including zoning changes and, most importantly, the abandonment of the eyesore aspect and surface traffic disruptions of the monorail project itself.

In some cases the property value increases were so dramatic that the original owners couldn't compete in the bidding. (How would you like the chance to buy your house back for ten times what you were forced to sell it for?).

The Legislature has taken no action on the eminent domain issue. The people hurt by the seizure process represent a very small constituency. Those small numbers, though, are a reminder of a sad truth: We need to revise the law to force government to do the right thing. Maybe the legislators will consider that in the fall. Certainly they will if we ask them to.

Everett Herald: http://www.heraldnet.com