Eminent Domain in Washington: The Property Owner’s Guide

Washington gives property owners two structural advantages that most states do not. The state constitution refuses to let the legislature declare something a public use and be done with it; that question belongs to a judge. And RCW 8.25.070 puts the condemnor’s money at risk if it lowballs the offer, with a ten percent trigger that is achievable in a genuine valuation dispute. The catch is a procedural one, and owners lose the fee right by ignoring it.

The law that governs takings in Washington

RCW Title 8 is organized by condemnor. Chapter 8.04 covers eminent domain by the state, Chapter 8.08 by counties, Chapter 8.12 by cities and towns, Chapter 8.16 by school districts, Chapter 8.20 supplies procedural provisions, Chapter 8.25 contains the additional provisions on offers, fees, and interest, and Chapter 8.26 covers relocation assistance.

The constitutional provision is the one to know. Article I, Section 16 of the Washington Constitution provides that whether the contemplated use be really public shall be a judicial question, and determined as such without regard to any legislative assertion that the use is public. Washington courts have used that clause to strike down takings other states would have allowed, and it is why Washington did not need the wave of post Kelo statutory reform that swept other states. The protection was already in the constitution and the courts were already enforcing it.

Who can take property in Washington

The Washington State Department of Transportation, counties, cities and towns, port districts, public utility districts, school districts, water and sewer districts, and transit authorities including Sound Transit all hold condemnation authority under their respective chapters of Title 8 and their enabling statutes.

Private condemnors exist too, including certain utilities and railroads. Whoever the condemnor is, the Article I, Section 16 judicial question applies, and the fee provisions of Chapter 8.25 apply to condemnation trials generally.

The condemnation process in Washington, step by step

A Washington condemnation proceeds in two distinct phases, and owners who treat it as one case make mistakes.

Phase one is public use and necessity. The condemnor files a petition and the court holds a hearing on whether the contemplated use is really public and whether the taking is necessary. If the court is satisfied, it enters an order adjudicating public use. That order is the hinge of the case, and it is also the event that starts one of the fee related clocks in RCW 8.25.070.

Phase two is just compensation, tried to a jury unless waived. The valuation trial is where the appraisals are tested, and where the ten percent comparison in RCW 8.25.070 is ultimately measured.

Between the two phases sits the settlement offer machinery. The condemnor is expected to make written settlement offers, and RCW 8.25.070 penalizes it for failing to make any written offer at least thirty days before trial. Under subsection (5), no offer in settlement may be referred to or used during the trial for any purpose in determining the amount of compensation, so the offers shape the fee outcome without contaminating the valuation.

Possession and deposits

Washington condemnors obtain possession by order of immediate possession and use, entered after the order adjudicating public use and supported by a deposit into court of a warrant sufficient to pay the amount offered as provided by law.

Here is where owners lose money without realizing it. Under RCW 8.25.070(3), reasonable attorney fees and expert witness fees are awarded only if the condemnee stipulates, when requested in writing by the condemnor, to an order of immediate possession and use of the property within thirty days after receipt of the written request, or within fifteen days after the entry of an order adjudicating public use, whichever is later, and thereafter delivers possession upon the deposit in court of a sufficient warrant.

In other words, refusing to hand over possession can forfeit your right to have the condemnor pay your lawyer. The statute does provide a safety valve: if the condemnor never asks the condemnee to stipulate to an order of immediate possession before trial, the condemnee is entitled to a fee award under subsections (1) and (2) regardless.

The right response to a written request to stipulate is not to refuse it. It is to calendar the thirty and fifteen day periods, comply, and preserve the fee right for the valuation fight.

What just compensation includes in Washington

Just compensation in Washington is the fair market value of the property taken, and in a partial taking, the value of the part taken plus damages to the remainder, offset by special benefits where the law allows.

Highest and best use governs. In the Puget Sound corridor the gap between a condemnor’s appraisal at current use and a properly supported appraisal at highest and best use is frequently the entire case, and it is also frequently more than ten percent, which is what makes the RCW 8.25.070 fee trigger practically reachable.

Washington does not compensate lost business profits or business goodwill as a separate element of just compensation. Business owners recover through the real estate, through fixtures and trade fixtures that qualify, and through relocation assistance under Chapter 8.26.

Relocation assistance and moving costs

RCW Chapter 8.26 is Washington’s relocation assistance statute, and it parallels the federal Uniform Relocation Assistance and Real Property Acquisition Policies Act that applies to federally assisted projects.

Relocation benefits include moving expense payments, replacement housing payments for displaced residents, and reestablishment expenses for displaced businesses. They are administered by the acquiring agency, are separate from the compensation a jury awards, and are not resolved by settling the condemnation case. They must be claimed and documented.

Deadlines that protect your rights in Washington

Thirty days before trial is the benchmark date in RCW 8.25.070. The condemnor must have made a written settlement offer by then, and the highest written offer in effect at that point is the figure the judgment is compared against for the ten percent test.

Thirty days after receipt of a written request to stipulate to an order of immediate possession, or fifteen days after entry of the order adjudicating public use, whichever is later, is the window in which you must stipulate to preserve your fee right under subsection (3).

The order adjudicating public use is also the last practical point at which a public use challenge can be pressed, so if the project’s purpose is questionable under Article I, Section 16, that argument belongs in phase one and not in the valuation trial.

How to fight a taking in Washington

The public use challenge is Washington’s distinctive weapon. Article I, Section 16 says the question of whether the contemplated use is really public is a judicial one, determined without regard to any legislative assertion that the use is public. A condemnor cannot cure a private purpose by declaring it public in a resolution. That standard has produced Washington decisions rejecting takings where the real beneficiary was a private party.

The fee provision is the other lever. Under RCW 8.25.070(1), if a trial is held to fix compensation, the court shall award the condemnee reasonable attorney fees and reasonable expert witness fees if either the condemnor failed to make any written offer in settlement at least thirty days before trial, or the judgment awarded exceeds by ten percent or more the highest written settlement offer submitted by the condemnor and in effect thirty days before trial.

Subsection (2) adds that the attorney general or other attorney representing a condemnor in effecting a settlement may allow the condemnee reasonable attorney fees, which gives room for fees to be built into a negotiated resolution rather than only after trial.

Subsection (4) caps the rates. Reasonable attorney fees may not exceed the general trial rate per day customarily charged for general trial work by the condemnee’s attorney for actual trial time, and the attorney’s hourly rate for preparation. Expert witness fees may not exceed the customary rates in the county, by the hour for investigation and research and by the day or half day for trial attendance.

The strategic implication is straightforward. Get a credible appraisal early, make sure the condemnor’s highest written offer is on the record thirty days before trial, stipulate to possession if asked, and try the valuation case. If you beat the offer by ten percent, the condemnor pays for the effort.

Before you sign anything

If you receive a written request to stipulate to an order of immediate possession, do not ignore it and do not refuse it on principle. RCW 8.25.070(3) conditions your entire fee right on responding within thirty days of receipt or fifteen days after the order adjudicating public use, whichever is later.

Track every written settlement offer and its date, because the highest one in effect thirty days before trial is the number your judgment will be measured against. Get the condemnor’s appraisal and get your own. And if the project’s beneficiary looks private, raise Article I, Section 16 in the public use phase, where it belongs.

Frequently asked questions

When does Washington make the condemnor pay my attorney fees?

RCW 8.25.070(1) requires the court to award the condemnee reasonable attorney fees and reasonable expert witness fees in two situations: if the condemnor fails to make any written offer in settlement to the condemnee at least thirty days before trial, or if the judgment awarded as a result of the trial exceeds by ten percent or more the highest written settlement offer the condemnor had in effect thirty days before the trial.

Can I lose my right to attorney fees in a Washington condemnation?

Yes. Under RCW 8.25.070(3), fees are awarded only if the condemnee stipulates, when requested in writing by the condemnor, to an order of immediate possession and use within thirty days after receipt of the written request, or within fifteen days after entry of the order adjudicating public use, whichever is later, and then delivers possession upon the deposit in court of a sufficient warrant. If the condemnor never asks for that stipulation before trial, the condemnee remains entitled to fees.

Is public use a judicial question in Washington?

Yes, and it is written into the constitution. Article I, Section 16 of the Washington Constitution provides that whether the contemplated use be really public shall be a judicial question, and determined as such without regard to any legislative assertion that the use is public. A condemnor cannot make a use public simply by declaring it so, which is why Washington did not need the statutory reforms many states passed after Kelo.

Can the condemnor use its settlement offer against me at trial in Washington?

No. RCW 8.25.070(5) provides that in no event may any offer in settlement be referred to or used during the trial for any purpose in determining the amount of compensation to be paid for the property. The offers govern the fee analysis after trial without influencing the jury on value.

Is there a limit on the fees Washington will award?

Yes. RCW 8.25.070(4) provides that reasonable attorney fees may not exceed the general trial rate per day customarily charged for general trial work by the condemnee’s attorney for actual trial time, and the attorney’s hourly rate for preparation. Reasonable expert witness fees may not exceed the customary rates in the county, by the hour for investigation and research and by the day or half day for trial attendance.