Downtown debate draws heat
April 30, 2009 · Updated 10:54 AM
By Dennis Box-The Courier-Herald
The Feb. 12 meeting of the Bonney Lake City Council revealed a troubling rift between one councilman and his colleagues.
At issue was a vote on Ordinance 1272, a proposal to rezone 13 parcels to public facilities in the area of the proposed downtown triangle. The area is bordered on the east by 184th Street East, on the southwest by state Route 410 and on the north by Sumner-Buckley Highway.
Councilman Dan Decker, who represents Ward 5, vehemently argued against the ordinance, citing issues with eminent domain and commercial use of public property. During the course of the debate Decker also accused someone of taking his documents during the meeting.
Several council members stated the ordinance was an areawide rezone and eminent domain was not being considered. After the meeting, some questioned Decker's behavior during the debate.
Government entities exercise the right of eminent domain, also known as condemnation, to take possession of private property for the greater public use. An example is to build roads or city buildings. According to the U.S. and state constitutions, a government agency must pay the owner of the property “just compensation.”
The rezoning measure eventually passed with Deputy Mayor Dan Swatman voting yes along with council members Dave Bowen, Dave King, Mark Hamilton and Jim Rackley. After the vote was taken, Decker stood and yelled, “I abstain.”
Councilwoman Laurie Carter was not present and Mayor Neil Johnson was absent because of illness.
During a 15-minute debate, Decker made three motions to table the ordinance. Bowen seconded the first motion which was voted down 4-2 with Bowen and Decker in support.
As the discussion continued, Decker made two more motions to table the ordinance. Neither received a second.
Decker's disagreement with the ordinance centered on the issue of eminent domain and commercial uses of public property.
“We do not have the right on the council to use eminent domain for commercial purposes,” Decker said “If we look at the project map there are several commercial properties that are going to be developed one way or another. One way is eminent domain and the other is selling it to commercial entities.”
King stated when the city zones property for public facilities, “it will not be used for normal commercial purposes. I don't see any intent on the part of the city to turn these properties or any portion of them that they do not now own to commercial interests. And I would ask that the council member that objects to list the businesses that would benefit from this rezone because I'm not aware of any.”
As the discussion neared an end, Decker said documents were missing from his area. “A mouse came up here and took them away,” he said. “My documents are gone.”
As the debate wrapped up Decker said, “Next time I will make sure the trap is ready for the mouse.”
During a phone interview after the meeting, Decker stated he had objections to the city using public funds to purchase land. He disagrees with the city's plan to build an interim justice center and later rent or sell the building to a commercial interest when the civic center is completed.
Decker also said he disagrees with using eminent domain to acquire land for the civic center, with a portion of it possibly being used for retail space.
Although the state Constitution (Article one, Section 16) does prohibit taking private property for private use, the issue is complex.
“Eminent domain has to be used for public purpose,” said Jeff Ganson, who was the city attorney present at the meeting. “But the courts have clearly allowed mixed public and private (uses).”
An example of the state Supreme Court allowing mixed use after condemnation is the Washington State Convention and Trade Center in Seattle.
The city of Seattle used its power of eminent domain to take private property for the center and a portion of the property was eventually used for commercial purposes. The state Supreme Court reviewed the case and allowed the condemnation because the private use was considered to be in the footprint of the public use.
William Maurer, executive director of the Institute for Justice, Washington chapter, has written extensively concerning the potential problems and abuses of eminent domain in this state and across the country.
“We (Washington state) had been a leader in protecting property rights,” Maurer said. “Washington state has had a long history of developing without destruction.”
Maurer stated the U.S. Supreme Court opened the door for potential eminent domain abuse in the 2005 decision Kelo v. New London, which allowed city officials in Connecticut to seize property and transfer it to a private developer. He believes the potential for abuse of the right exists in this state.
“Sometimes what looks like a voluntary transaction isn't,” Maurer said. “And just because the courts say you can, doesn't mean you should.”
The council earlier considered the use of eminent domain for five properties the city will need to build a civic center in the downtown area. However the issue was tabled in favor of negotiation.
“We decided to not go after those properties (with eminent domain),” Hamilton said. “And I can't imagine it being brought forward for a while. I have not been in favor of using eminent domain for any property in the downtown area at all and I would like to keep it that way.”
Decker said he had not discussed the legal issues nor his objections with the city attorney or other members prior to the meeting.
“My reason is every time I talk to them (council members) I get the push off,” Decker said. “I'm not the kind of guy who takes the push off.”
Rackley said he believes fellow council members are trying to be supportive of Decker.
“He's being belligerent in his behavior and he's not understanding he is doing it,” Rackley said. “He held his objections and never talked to anyone. We are trying our best to accommodate him and get him up to speed.”
King noted Decker might need to do more homework on the subject of the downtown plan.
“The process of government has rules of order and decorum,” King said. “We have to have order in public meetings. Mr. Decker felt he was one against five others. But we are willing to work something out.”
Decker said he is not against all uses of eminent domain, but he is against the downtown plan.