U.S. Supreme Court Condemnation Ruling to Have Little
Washington Impact

By Hugh Spitzer
Foster Pepper & Shefelman PLLC

The U.S. Supreme Court has upheld a Connecticut law that permitted the City of New London to condemn private houses for resale to other private parties as part of an integrated urban renewal plan.  Although the 5-4 decision in Kelo v. New London received substantial national publicity, the case will have little effect in Washington state because for half a century our State Supreme Court has denied local governments authority to condemn private property for purely economic development purposes.  The Washington Court’s position is that a “public use” condemnation must be based on use of the land either for a publicly-owned facility or for public health and safety purposes.

In Kelo, the City of New London had adopted a detailed revitalization plan to counteract a rapidly deteriorating economic situation.  The rejuvenation plan was based on significant neighborhood input and involved a conference hotel, restaurants, shopping, recreational uses, a new museum and housing.

The U.S. Supreme Court ruled that, given the care with which the City had developed its plan and the fact that economic development was a long-standing governmental activity in many American states, the condemnation of private property was a “public use.”  In essence, the Court determined that subject to basic U.S. Constitutional constraints, it was up to the states to determine what types of projects comprised an appropriate public use for eminent domain purposes.

Long ago the Washington Supreme Court ruled that condemnation for private economic development did not qualify as a “public use” in that state.  In 1959, the Court in Hogue v. Port of Seattle ruled that a port district could not condemn a private farm for the purpose of converting it to private industrial development.  Similarly, in 1981, the In re Westlake case held that the City of Seattle could not condemn the Mayflower Hotel and Sherman and Clay buildings in order to hand the property to a private retail developer.

At the same time, the Washington Supreme Court has upheld the condemnation of private property as part of a formal urban renewal program where the underlying purpose of the program was to eliminate blight.  For example, in Miller v. Tacoma the Supreme Court ruled in 1963 that the City could condemn a private apartment building and resell the land as part of an overall program to clear an area of dilapidated housing, health and safety hazards and crime and delinquency.

In essence, the Washington Supreme Court has for decades taken the same position as the dissenters in the New London Kelo case.

However, that case will still provide modest benefits to Washington local governments because of its emphasis on the importance of carefully developed factual findings by local elected officials and its reliance on state and local governments to determine what constitutes a “public purpose” under local law.