Sovereign Power of Eminent Domain May Not be Bargained Away to a Private Party

An interesting opinion has come down from the Washington Court of Appeals. The issue, as the court framed it, was  “. . . whether a public entity’s agreement to assign its rights as a condemnor to a private party under an uncompleted eminent domain proceeding constitutes an abandonment of te condemnation by the public entity.” The short answer: yes.

Seattle Monorail (SMP) filed an action to condemn a parking garage owned by HTK, leased to Rokan, and subleased to AMPCO, and the parties worked out a stipulated judgment. But all these plans of mice and men came a cropper when the voters said “No,” and disapproved the project. SMP then assigned its rights under the stipulated condemnation judgment to HTK thus transforming it from a condemnee into a condemnor. Unsurprisingly, the other two condemnees, Rokan and AMPCO, objected. The trial court found that by giving up its rights under the stipulated judgment and assiging them to a private party (HTK), SMP abandoned its condemnation, so it no longer could be pursued or implemented by anyone else. The trial court also awarded attorneys fees of $247,609 to AMPCO and $194,170 to Rokan. On appeal, these rulings were affirmed.

Eminent domain, said the Court of Appeals, is an attribute of sovereignty that is controlled by the legislature. And while the legislature may delegate that power to others by adoption of appropriate legislation, the delegatees may not subdelegate it to still other parties. Said the court: “If condemnation means anything it is that the govermental entity actuallly takes privately owned property and assigns it to public use. Here, SMP by its own admission did not intend to take the property at all, but instead intended to allow HTK (as SMP’s judgment assignee) to remain the private owner of the property.” That would be a no-no.

So here is the bottom line: the power of eminent domain is a sovereign power. It may be legislatively delegable by statute, but it is not asignable by the delegatee.

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