On September 12, the Washington Supreme Court affirmed a Court of Appeals decision that declared the City of Sammamish––and all other municipalities enumerated under Revised Code of Washington 8.12.030––does not  lose its statutory right “to condemn private property for stormwater management” if it includes other bases for the condemnation that are not explicitly set forth in statute. City of Sammamish v. John Titcomb, Jr. and Linde R. Behringer, No. 101894-1 (Wash. filed Sept. 12, 2024).

The Court granted review of the petitioners’ challenge to the taking of their property by the City of Sammamish. Petitioners John Titcomb and Linde Behringer argued the City’s taking had exceeded its statutory authority, because the eminent domain action was based, in part, on the Salmon Recovery Act (SRA), chapter 77.85 of the RCW, and not solely for the purposes of stormwater management. Titcomb and Behringer argued that the condemnation action was improper, because fish passage protection purposes are not an enumerated basis in RCW 8.12.030, on which a municipality may condemn a property. The petitioners did not dispute that the City had authority to condemn property for stormwater purposes alone.

Relying on language of the SRA and the holding in Cowlitz County v. Martin, 142 Wn. App. 860, 866, 177 P.3d 102 (2008), the petitioners argued the City was not authorized to take their property for fish passage protection purposes. In Cowlitz County, the Court of Appeals had explained that the Washington “Legislature clearly elected not to grant eminent domain power to protect this public interest for projects solely funded and regulated by the Salmon Recovery Act.” Titcomb and Behringer further asserted the use of SRA funds by the City for the overall creek rehabilitation project violated the SRA.

In addressing statutory interpretation, the Court determined the petitioners had correctly interpreted the SRA, and that the act does not allow municipalities to take private property for salmon recovery projects. However, the Court disagreed with Titcomb and Behringer that the SRA and its related regulations may divest a municipality of its condemnation authority because there is no express language in the act that can “be read to limit the authority granted in RCW 8.12.030.” Accordingly, the Court determined that the City’s authority to condemn the petitioners’ property for stormwater management purposes under RCW 8.12.030 was not limited by the City’s secondary intent to turn the property into salmon recovery habitat.

The Court also distinguished the City’s actions from the county commissioners’ conduct in Cowlitz County. It explained that the City had earmarked SRA funds for redesign of the creek and sufficiently segregated the money from the condemnation proceeding—unlike in Cowlitz, where the county commissioners used SRA funds to pay for the condemnation of a private easement. Because no SRA funds were paid to the petitioners in the current case, or otherwise used to process the condemnation action, the City had not exceeded its statutory authority.

The Court purported to limit its ruling in Titcomb to two discrete outcomes. First, the Court’s decision was  distinct from the Cowlitz County opinion, because t the earlier decision addressed a condemnation action solely under the SRA.  Here, the City put forth stormwater management as a valid condemnation purpose alongside its intention to improve fish passage. Second, the Court broadened its interpretation of which public uses may be used to condemn property, to include the combination of fish passage and stormwater management within the larger waterway infrastructure management use. This expansion appears to allow fish passage as a use upon which condemnation authority can exist, so long as the fish passage use is combined with an already-accepted waterway infrastructure management public use approved for condemnation authority.. This opinion appears to do more than that, however, because it solidifies the authority of municipalities to bring “dual purpose” condemnation proceedings—so long as one of the purposes is a public use akin to the “nonexclusive public uses listed in RCW 8.12.030.”

To be clear, this opinion does not eliminate all private challenges to condemnation proceedings, because the Court limited condemnation to public uses that are at least “similar” to those set forth in RCW 8.12.030. Moreover, it is likely the “similarity” and “nonexclusive” language used by the Court has established a substantial grey area that may encourage numerous challenges to any fringe condemnations.

An appetite for more: Could the Court seek to extend condemnation authority in the future?

In concurrence, Justice Montoya-Lewis agreed with the five-justice majority, but expressed a caution about failure to overrule the Cowlitz County decision. She stated that the majority opinion ignores important treaty rights “protecting the rights to fish in the usual and accustomed places enumerated in the treaties,” and fails to harmonize the relevant state statutes. Support of three other justices for the concurrence by Justice Montoya-Lewis signals the Washington Supreme Court may be interested in hearing a similar case that expands condemnation authority by asserting the elimination of fish passage barriers as an “independent sufficient public use” under RCW 8.12.030.

How will Titcomb affect private property?

The Washington Supreme Court’s decision in City of Sammamish v. Titcomb is an iterative step that broadens the statutory condemnation authority of municipalities. Since the decision applies to waterways, landowners adjacent to them should take an opportunity to examine their properties and assess the potential for condemnation by a local municipality for stormwater management and fish passage protection. Beyond that, all private property owners should be concerned that the Court’s expanded definition of public uses might lead to more aggressive condemnation proceedings as municipalities explore the contours of this new, apparent grey area in the law.

This article summarizes aspects of the law and does not constitute legal advice. For legal advice regarding your situation, you should contact an attorney.