The City of Burien targeted property belonging to the seven Strobel sisters for condemnation simply because its use as a family-style restaurant named Meal Makers was not upscale enough for the City’s new “Town Square” development project, which will feature upscale condos, shops, restaurants and offices. To eliminate the property, Burien is alleged to have devised a scheme to run a road directly through the restaurant building.

The City’s conduct has been called a case study in bureaucratic oppression and mistreatment. The City Manager it’s claimed informed his staff to “make damn sure” the road went through the building. The staff complied, developing a plan that appeared to run the road over the Strobel family’s property. When a subsequent survey revealed that the road would impact only a small corner of the property and not the building itself, the staff developed yet another site plan that put the road through the building. The City then condemned the Strobel family’s property.

“What Burien did was an egregious abuse of the eminent domain power,” explained Michael Bindas, staff attorney for the Institute for Justice Washington Chapter (IJ-WA), which represented the Strobel family in petitioning the Supreme Court to review the case. “The City did not think the Strobel family’s property was upscale enough for its new development, so Burien’s bureaucrats made ‘damn sure’ to eliminate it through condemnation.”

The Strobel family challenged the condemnation in King County Superior Court, arguing that a condemnation does not pass muster under Washington law unless the property being condemned is necessary for a public use. Their property, they argued, was anything but necessary, given that the government had to make certain to target it, then configure — and re-configure — the road until it went right through the front door.

The Superior Court judge acknowledged that the sisters’ property was not necessary, noting that the road “could have been easily accomplished without affecting the Meal Makers restaurant or the Strobel property.” In fact, he described the City’s condemnation decision as, “You won’t sell and you don’t fit our vision, so we’re going to put a street right through your property and condemn it.” He even suggested that the City’s condemnation might be “oppressive” and an “abuse of power.”

Nevertheless, the judge concluded he must allow the condemnation given the incredibly deferential standard Washington courts apply in reviewing government “necessity” determinations. As the judge put it, he was bound to uphold the condemnation unless there was proof that Burien had engaged in “fraud” — a virtually insurmountable standard for the property owner to overcome. The Court of Appeals affirmed. The Washington Supreme Court refused to review that decision.

IJ attorney Bindas explained that the Court’s refusal to hear the sisters’ appeal reflects an unwillingness on the judiciary’s part to fulfill its vital role as a check against legislative and executive abuses of power: “The standard that courts are currently applying in reviewing government condemnation decisions is so deferential that judges essentially smile and nod whenever the government says it needs someone’s property. We hoped the Supreme Court would step in to stop that kind of knee-jerk deference, but the Court’s refusal to hear the Strobel family’s appeal means local governments will have free rein to purposely target properties simply to reflect their elitist views of what a city should look like.”

William Maurer, IJ-WA’s executive director, noted that this was the third time since the U.S. Supreme Court’s decision in Kelo v. New London, that the Washington Supreme Court has allowed local governments to expand their eminent domain power. Within the past year and a half, the Court has allowed the Seattle Monorail to condemn more property than it needed for a legitimate public use so it could act as a land speculator with the remainder. The Court also permitted Sound Transit to make eminent domain decisions essentially in secret, with the only “notice” to the property owner being provided on an obscure government website.