UPDATE: Ken Miller awarded $500,000 in court.
This month, Ken Miller will find out if his proverbial fight with city hall was worth it.
For the past three years, Miller has spent the better part of his days fighting to keep property that regional transportation authority Sound Transit says it needs to complete a long-delayed stretch of commuter rail service between Tacoma and Lakewood. The method of acquisition is known as eminent domain — the constitutional right granted to governments and public agencies to take private property without the owner’s consent, usually for development of military bases, government buildings, roads, and rail lines.
It is a power that Sound Transit has used a hundred times while building out its various rail systems in the Puget Sound region and one the agency will likely use a hundred times more as it continues, said former Sound Transit Board Chair John Ladenburg, who recently announced his candidacy for the state’s attorney general seat.
In the Millers’ case, the land is needed to complete the agency’s planned Sounder commuter rail line from Tacoma to Lakewood and will be occupied by a parking lot for riders in South Tacoma. According to Miller, his attorneys, court documents, and four members of the state Supreme Court, the agency was well on its way toward taking Miller’s land before he was ever notified. He fought the seizure of his land primarily on grounds that Sound Transit had not provided him with sufficient notice that it planned to take his property. Unfortunately for Miller and his wife, Barbara, the other five members of the state Supreme Court disagreed, denying the Millers’ appeal. They were forced to sign the 1.25-acre piece of land over to Sound Transit in mid-2006.
“This has been an education,” says Miller. “But it’s not the kind of education anyone would ever want.”
Sound Transit began proceedings to seize the Millers’ property after posting a reference to acquisition of “certain real property interests” necessary for construction of Sounder rail stations in Lakewood and South Tacoma. The agency did not, as it had in the past, publish notice in newspapers, on the property or in public places. The court decision was the first in the United States to declare Internet notice alone to be sufficient for government agencies preparing to take private property.
Pierce County Executive and former Sound Transit Board Chair John Ladenburg takes issue with Miller’s contention that he was blindsided by the announcement of condemnation proceedings. Ladenburg, a former lawyer, claims that the decision was made in 2000 to take Miller’s land, unless Sound Transit officials could convince Miller to part with it for cash, and had begun purchase negotiations with the Millers then.
Miller says that until the condemnation proceedings commenced, he had been told by Sound Transit that his property was only one of four parcels being considered for use.
“He (Ladenburg) is either lying or has been misinformed,” says Miller.
Prior discussion aside, Ladenburg contends that Sound Transit was unable to pay what Miller wanted for the property, so the agency decided to vote to condemn it. Ladenburg concedes that Miller was not informed of the meeting at which Sound Transit intended to vote to proceed with condemnation, saying the vote was a simple, ministerial function — formalizing a decision that had already been made and one that the Millers knew about. Since the decision had already been made, telling the Millers that the agency was going to formalize the decision was moot.
“Sound Transit decided years ago to acquire the property, by purchase or by condemnation,” says Ladenburg. “We couldn’t come to an agreement, so we began condemnation proceedings. The decision wouldn’t have changed if they (the Millers) had been able to show up to complain about it.”
When asked about the Miller case, Assistant Attorney General for Government Accountability Tim Ford suggests that public meetings serve a vital purpose, and should not be considered insignificant by any public official.
“You only have to look at how the state Legislature reacted to the case to see how important it was,” says Ford. “They almost immediately enacted a law specifically because of that case requiring that property owners be informed.”
Proper notice aside, the Millers’ attorney at the time of the state Supreme Court decision, Charles Klinge, claims Sound Transit’s process was full of erroneous facts and improprieties. The Millers provided evidence, for example, that Sound Transit made false public statements that alternative sites had contamination problems. Prior to the Supreme Court hearing, a trial court indicated that Sound Transit “negligently omitted and missed some facts and evidence, which ideally should have been considered and, if considered, could have reasonably led to a different result.”
Knowing that, the state Supreme Court majority ruled against Miller. Justice Mary Fairhurst wrote for the majority that the Millers were “not entitled to actual individualized notice.”
Supreme Court Justice Jim Johnson wrote in dissent, “Only by adopting a rubber-stamp standard of review at odds with Article 1, Section 16 (of the state constitution) and relevant case law can the majority look the other way. To rely on clearly erroneous factual information of such magnitude amounts to arbitrary or capricious conduct.”
Miller echoes Johnson’s concern, suggesting that his case should serve as a warning and a lesson to property owners throughout the state. Watchdog groups claim Miller’s experience is one of many that signal rampant and growing eminent domain abuse by cities and public agencies nationwide. Eminent domain abuse has erupted, they say, in the wake of a recent United States Supreme Court decision that gives governments the right to take property for private development. In Kelo vs. New London, the United States Supreme Court denied an appeal in New London, Conn., by property owners whose land was targeted by a city sponsored development corporation for transformation into a resort, hotel and residential community. Watchdog group the Castle Coalition claims the ruling “obliterated the federal public use requirement by equating ‘public use’ with ‘private use.’”
Ladenburg emphasizes that the Kelo case has little relevance when considering the Miller’s plight — the Sounder rail service is clearly a public use. Observers contend, in turn, that strict protections in Washington make it unlikely that the effect of the Kelo ruling will spread here.
Executive Director William Maurer of the state chapter of the Institute for Justice replies in a brief for the Washington Policy Center, “Although eminent domain abuse in this state has neither been as egregious or commonplace as it has in some other states, it has still occurred and it has done so under the very constitution and state laws municipalities, developers and their lobbyists and attorneys assure us prevent this type of abuse.”
Watchdog group the Castle Coalition’s 50 State Report Card for 2007 gives Washington a C- grade for legislative attention to eminent domain protections. Washington received praise for passage of House Bill 1458 in 2007, which requires that a certified letter be sent to property owners when governments and empowered agencies decide they want to take private property. Washington Attorney General Rob McKenna has presented two bills this legislative session that would make it harder for government agencies to abuse the power of eminent domain.
Miller laughs in amazement as he talks about the past three years, during which time he has spent nearly $500,000 defending what he claims is his right to keep the property. Given Sound Transit’s best offer of $566,000, minus the cost of his legal and personal expenses, Miller estimates he could receive nothing for the property and his time. He does find a dim silver lining in the fact that his troubles may protect other property owners from what he describes as abuse of the powers given to public agencies.
“I hope no one ever has to go through this,” he says. “At this point, I don’t think it was worth fighting.”