I've criticized the abuse of eminent domain for economic purposes a number of times on this site. But here is the sort of case where eminent domain is appropriate. The only question is what constitutes adequate notice of meetings and decision-making.

A Tacoma couple lost their court fight Thursday to keep Sound Transit from seizing their property to build a commuter rail station.

The ruling could have broader implications for the power of government in Washington state to seize private property by eminent domain. The state Supreme Court, in a 5-4 decision, said it generally does not referee disputes when a government agency needs to seize property. The court also said a Web site posting was enough notice of a meeting on taking the coupleÂ’s land.

The majority ruling of the court said it is a “legislative judgment” that determines when it is necessary to seize someone’s property for a public use. It said the courts will overturn that decision only if there is proof of fraud or when the government clearly ignores the law.

Justice James Johnson, in a written dissent, objected that the state Constitution clearly makes government taking of property a matter for the courts.

“The constitutionally limited eminent domain power is improperly expanded by the majority at the expense of the peoples’ individual rights to own and use property,” he said.

Sound Transit is taking the South Tacoma property as part of its effort to extend Sounder commuter train service south from Tacoma to Lakewood.

The property owners, Ken and Barbara Miller, said Sound Transit arbitrarily chose their property over other alternatives. They also argued that no one told them beforehand about the meeting where Sound TransitÂ’s board of directors decided to take their land and that it wasnÂ’t enough for the agency to announce the meeting on its Web site.

At first this looks bad -- not a matter for the courts? Only notice on a website? But let's flesh out a few details.

First, it is clear even from this that it is not up to the courts to decide the best properties to be seized for a project. The majority is right on that point -- that decision belongs to the political branches responsible for carrying out the project, not the judges. They have no role in determining the best way to implement a policy -- only its legality and constitutionality.

The second point -- relating to notice-- is a red herring. After all, the couple had known for years that this was probably coming.

FairhurstÂ’s ruling said Miller couldnÂ’t have been surprised by the decision to seize his property. Sound Transit started looking in 1998 for a good spot in South Tacoma or Lakewood to build a park-and-ride rail station as part of the planned commuter rail expansion. Three years later, after a series of workshops and public meetings, the agency identified three potential sites.

The ruling said that for those first three years, Miller cooperated with Sound Transit in the possible condemnation. It said he allowed Sound Transit to enter the property and take soil samples in 2001.

“There is considerable evidence that Miller was involved in the site selection process for many years,” Fairhurst said in the ruling.

Miller said he had only a few contacts over the years with anyone related to Sound Transit and wasnÂ’t given a choice about allowing the soil testing.

He said he knew the agency was considering taking his property, as well as others, for the rail station. But he said he wasnÂ’t informed about the 2003 meeting when the agencyÂ’s board of directors selected his land for the project.

So you see, for five years this guy was aware that his property was being considered for the project, and he did nothing substantive to head it off. He was not personally notified of the final meeting (which is, in my opinion, bad form), but by that point the selection appears to have been a mere formality. There's an old saying that applies -- "You snooze, you lose."

And unlike the case I wrote about recently, it seems that adequate compensation is a given here.

Posted by: Greg at 03:27 AM | Comments (5) | Add Comment
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