MRSC Inquiries
Property Management
Property Management - Condemnation
- Will the U.S. Supreme Court decision in Kelo v. New London affect condemnation of private property under Washington State law?
The question the Court was deciding in Kelo v. New London was whether the city of New London's condemnations to promote economic development were for a "public use" within the meaning of the 5th Amendment to the Federal Constitution (e.g., the "takings clause"). However, the Court stated:
We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power. Indeed, many States already impose "public use" requirements that are stricter than the federal baseline. Some of these requirements have been established as a matter of state constitutional law, while others are expressed in state eminent domain statutes that carefully limit the grounds upon which takings may be exercised. As the submissions of the parties and their amici make clear, the necessity and wisdom of using eminent domain to promote economic development are certainly matters of legitimate public debate. This Court's authority, however, extends only to determining whether the City's proposed condemnations are for a "public use" within the meaning of the Fifth Amendment to the Federal Constitution. Because over a century of our case law interpreting that provision dictates an affirmative answer to that question, we may not grant petitioners the relief that they seek.
The eminent domain section of our state constitution (article 1, section 16) states in part as follows:
Private property shall not be taken for private use . . . Whenever an attempt is made to take private property for a use alleged to be public, the question 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.
The Washington State Supreme Court has determined that this constitutional provision does not allow condemnation for the purpose of promoting economic development. The court in In re Seattle, 96 Wn.2d 616 (1981), determined that a retail shopping center project did not constitute a public use and that the city lacked statutory authority to condemn property for that purpose.
So, the U.S. Supreme Court decision in Kelo v. New London should not affect condemnation of private property under Washington State law.
- May a city condemn state-owned land? What if the land is being put to public use?
Yes, it may. RCW 8.12.030 provides in part:
Every city and town and each unclassified city and town within the state of Washington, is hereby authorized and empowered to condemn land and property, including state, county and school lands and property ...
What if the state land is being used for a public purpose? The city may still condemn the property, provided the city's is a "superior public use." In In State ex rel. Puget Sd. [Sound] etc. R. Co. v. Joiner, 182 Wash. 301, at page 302, the court stated:
...property is not exempt from condemnation because it may have been previously dedicated, appropriated or devoted to public use. ... Except where property devoted to a public use is sought for a superior public use, the right to condemn such property must be so exercised as not to substantially interfere with the prior use.
A city could condemn only that part of the land that it needs, although it may have to pay damages that the remaining portion sustains.
Property Management - Disposition to Other Governments
- May a city donate property to another city without requiring any payment?
Probably not. Although there is statutory authorization allowing one city to sell or transfer property to another "on such terms and conditions as may be mutually agreed upon" (RCW 39.33.010), there is another statute that requires transfers between governments be made for "full value," RCW 43.09.210. The term "full value" has been construed by the attorney general, however, as allowing for flexibility. See AGO 1997 No. 5. For instance, the attorney general explains, if two governments conduct negotiations concerning an item of property, and arrive at a bargain by which the property will be transferred in exchange for some consideration (which could be a monetary payment, other property, services performed for the transferring government, or perhaps even relief from a burden), the courts would likely find that the transferring government received "full value," unless the actions of one or both governments were obviously irrational or arbitrary. Id. If the value of the property is over $50,000, then a public hearing must be held prior to the sale. Ch. 39.33 RCW.
Property Management - Easements and Vacations
- If a city or county wants to obtain an easement over private property and the property is owned by two unrelated individuals, must the agreement of both property owners be obtained?
The issue in this particular case concerns the creation of an easement for a city utility across some private property. The private property is legally owned by two property owners not related to each other. One property owner is willing to agree to the creation of the easement, but the other property owner has left the town and there is no forwarding address.
An easement is a privilege to use the land of another and is considered an interest in land. Because of this, it must be conveyed by written deed as required by RCW 64.04.010. It must be in writing, signed by the parties to be bound, and acknowledged before an authorized person. It must be signed by all the parties to be bound.
So, it is not sufficient to have the agreement of one only party if there are two legal owners of the property unless the one party has a legal power of attorney or other legal authority to act on behalf of the absent party.
Property Management - Personal Property Management
- Request for advice regarding the city's obligations in regard to processing lost and found property claims.
Some boys found over $100 in coins on a city street near city hall. As required by statute, they brought the coins to "the chief law enforcement officer ... of the governmental entity where the property was found" [see RCW 63.21.010(1)(b)]. Amendments to RCW 63.21.010 passed in 1997 now require the city (or county, if the lost property is found in an unincorporated portion of the county) to publish or get notice out concerning the found property:
(2) Within thirty days of the report the governmental entity shall cause notice of the finding to be published at least once a week for two successive weeks in a newspaper of general circulation in the county where the property was found, unless the appraised value of the property is less than the cost of publishing notice. If the value is less than the cost of publishing notice, the governmental entity may cause notice to be posted or published in other media or formats that do not incur expense to the governmental entity.
RCW 63.21.030 provides that the city or county is entitled to collect $10 plus the cost of publication in most situations:
(1) The found property shall be released to the finder and become the property of the finder sixty days after the find was reported to the appropriate officer if no owner has been found, or sixty days after the final disposition of any judicial or other official proceeding involving the property, whichever is later. The property shall be released only after the finder has presented evidence of payment to the treasurer of the governmental entity handling the found property, the amount of ten dollars plus the amount of the cost of publication of notice incurred by the government [governmental] entity pursuant to RCW 63.21.010, which amount shall be deposited in the general fund of the governmental entity. If the appraised value of the property is less than the cost of publication of notice of the finding, then the finder is not required to pay any fee.
If the property is claimed by the rightful owner, the city is not entitled to collect any fee or recover any costs.
- Does the fire chief make the decision concerning what fire fighting equipment is surplus to the city's needs?
No. The council should listen carefully to the professional advice of the fire chief concerning what equipment is surplus. However, decisions concerning the surplusing of city equipment must be made by the city council.
- Can a city sell surplus personal property using eBay?
Yes. We can see no reason why a city could not use that process for selling surplus personal property, as long as there was a minimum bid established that was equal to the fair market value of the property.
Keep in mind that city officials and certain administrative officers may be restricted from purchasing surplus property due to conflict of interest concerns. The general rule is that those who are involved in the decision to surplus property (the council) and those in charge of administering the sale (mayor, city manager, or other city officer responsible for the sale) should not purchase the property. General city employees can purchase surplus city property.
See our "Sale of Surplus City Property" Web page for more information on procedures for selling surplus property.
Using such Internet auction sites for sale of the property might prove to be very beneficial for the taxpayers.
- When is a public hearing required under state law for the sale of municipal property?
There are only two circumstances that trigger the requirement for a public hearing in state law for the sale of municipal property. One is for property that is originally acquired for public utility purposes. See RCW 35.94.040. The other is for the sale of property to another governmental entity if the value of the property is more than $50,000. See RCW 39.33.020.
Otherwise, it is a policy decision for the city whether to hold a public hearing prior to the sale of municipal property.
For more information on this topic see our "Sale of Surplus City Property" or "Sale of Surplus County Property" Web pages.
- Do all classes of cities have legal authority to sell real and personal property owned by the city?
Yes. The state statutes for every class of city contain specific authority for the city or town to sell or dispose of both real and personal property. This authority would include city-owned land and buildings, as well as equipment.
Property Management - Real Property Acquisition
- Is city-owned property subject to condemnation by a school district?
No, probably not. Statutory authority for school district condemnations is provided by RCW 28A.335.220 and ch. 8.16 RCW. Neither provision, however, indicates that the school district power extends to the condemnation of publicly-owned land. AGO 55-57 No. 335 concludes:
The eminent domain statutes permitting school districts to condemn property do not specifically authorize condemnation of land already devoted to public use. In the absence of such authorization, this power cannot be inferred.
A similar result was reached in AGO 1927-1928 (at p. 744):
School districts may condemn for sites . . . but property already devoted to a public use cannot be taken for another public use which will materially impair or interfere with the former use, unless authorized by the legislature, either expressly or by necessary implication. Mere general authority to condemn is insufficient.
Appellate court authority, although not specific to school districts, is consistent with the advice given by the attorney general.
Property Management - Real Property Management
- May the library rent a room for a private meeting?
Yes, private groups can use city meeting rooms for a reasonable rental. The city should be careful not to discriminate against legitimate groups if such a policy is enacted.
- If a city resident's manufactured home has been encroaching upon a recorded city easement for more than ten years, has that person established a right to keep the manufactured home in that location?
No. The doctrine of adverse possession applies in disputes between private parties, but the doctrine cannot be applied against the city or the state.
- What procedures are recommended for the sale of real property?
This office generally recommends the following procedures for the sale of real property: (1) the city or town council by resolution declare the property surplus to the needs of the city; (2) if the property has significant value, obtain one independent appraisal in order to establish fair market value; and (3) once these preliminary steps are completed, the property may be sold by bid, negotiation, auction or any other appropriate method desired by the city.
Property Management - Sale of Surplus City Property
- Do all classes of cities have legal authority to sell real and personal property owned by the city?
Yes. The state statutes for every class of city contain specific authority for the city or town to sell or dispose of both real and personal property. This authority would include city-owned land and buildings, as well as equipment.
- What procedure is required in the state laws for the sale of property by a city or town?
This is an area in which the state in most cases has not required that a certain procedure be followed before property may be sold. We do recommend that the city or town council expressly declare that the property is surplus to the needs of the city and that its disposal will be for the common benefit. This may be done by ordinance, resolution or motion.
- Must a bid procedure be utilized for the sale of property?
No. The state statutes do not require that a competitive bid procedure be used to sell property. Nor is it necessary to hold an auction. These requirements would only be necessary if they were contained in a local ordinance or policy relating to the sale of property.
- May the city enact a local ordinance containing specific requirements for the sale of property?
Yes. The city council may wish to provide procedures for the sale of municipal property. These procedures could require that an auction be held or a bid procedure followed, if this is desired.
- Must fair market value be received for property?
If the sale is to a private party, the fair market value must usually be received in order to avoid the possibility of the Office of the State Auditor considering the sale to be a gift of public property to a private party. This would be in violation of the state Constitution. For example, if an expensive piece of equipment is sold for a nominal amount, such as one dollar, this could raise this issue. However, if the city has made a good faith attempt to find a buyer of a piece of property at the appraised value and no one is interested, that should justify accepting a lower amount.
- Who can purchase surplus property?
In most cases, any public or private entity may purchase surplus property. However, the mayor and councilmembers may not purchase property from the city, regardless of the value, because of a specific statutory restriction. RCW 42.23.030.
- May city officers and employees purchase property from the city?
It is clear that the mayor and city councilmembers cannot purchase property from the city. City employees in most cases may purchase surplus property as long as they pay fair value. State law does not prohibit the purchase of property by city employees. However, some cities have restricted this practice in order to avoid raising an appearance of fairness issue. If an auction or bid procedure is utilized, then the city employees may bid on the property but may not be given any advantage in regard to the sale that other members of the public do not have.
- Is an exchange of property legal?
If the value of the properties being exchanged is approximately equal then the city may exchange one piece of property for another.
- May a county sell surplus computers on eBay?
Though the statutes were not written with online auctions (e.g., eBay) in mind, it appears that a county may use them or other online auction sites as a "privately operated consignment auction" referred to in RCW 36.34.080.
The county must publish notice of the intended auction(s) "once during each of two successive weeks in a newspaper of general circulation in the county" (see RCW 36.34.090). The published notice of the auction(s) must be specific (see RCW 36.34.100); a county would need to list the items to be auctioned and provide the date and time that each auction will be started.
We recommend that county officials review this issue with their prosecutor.
- The city is considering doing a land swap or exchange with a private developer. What are the legal issues to consider?
With regard to negotiating for the sale or disposition of property, state law does not require a specific process in this situation for your city, other than the process in RCW 35.94.040 that applies when the property involved was “originally acquired for public utility purposes.” The process in RCW 35.94.040 requires a public hearing and a council resolution regarding the conveyance of the property.
With regard to real property exchanges generally, the key legal consideration is that the city receive fair market value for the property it is exchanging. We recommend that both pieces of property be appraised by an independent, qualified appraiser. If the value of the property owned by the city exceeds to any significant extent the value of the property it is receiving, additional cash or other consideration should be a part of the transaction. The values do not have to be identical but there should not be a significant disparity in the value of the property conveyed by the city or the State Auditor may question the transaction.
The city council would declare the property being traded by the city to be surplus to the needs of the city. The city may then negotiate with various parties concerning the proposed exchange. It is not necessary that the city use a bid procedure with regard to the sale or exchange of the property.
Property Management - Utility Property
- Do special rules apply to the sale of utility property?
Yes. If the property was originally acquired for utility purposes, the city council must pass a resolution declaring that the property is surplus to the needs of the city and is not required for continued public utility service. The resolution must state the fair market value of the property and at least one public hearing must be held prior to the sale. RCW 35.94.040.
Property Management - Vehicles
- What are the requirements for marking public vehicles?
RCW 46.08.065 contains the state regulations concerning marking of official vehicles. The general rule is that it is unlawful for any public officer having charge of a city-owned vehicle used in public business, to operate the vehicle upon the public highways of the state unless the vehicle is properly marked. The required markings are outlined in the statute. Basically, all city-owned vehicles are required to be marked with the city name or insignia, along with the words "for official use only." There is an exception to the marking requirements for vehicles which are used by the local police department for special undercover or confidential investigative purposes.