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December 4, 2006

Opinion: Using a bad law to drive out mom-and-pop retail

By MICHAEL BINDAS
Special to the Journal

Upscale redevelopment is the hobby du jour for city governments across Washington. But what's a city to do with those unfashionable mom-and-pop types who don't want to move when the government wants to clear them out for the next trendy “urban village”?

Condemn them, of course.

Across the state, especially in the wake of last year's abominable Kelo decision, cities are looking to condemnation as a surefire way to upgrade from blue-plate to caviar overnight.

Consider the situation of the Strobel sisters: Robin, Carol, Sally, Betty, Susan, Janet and Julia. They own a modest piece of property they inherited from their parents in downtown Burien. Since the Carter administration, Meal Makers, a popular family-style restaurant, has leased the property. It's a neighborhood mainstay.

It sounds like just the kind of place a city would want to preserve, right?

Wrong. After a quarter-century, Burien's bureaucrats have a new “vision” in store for the Strobels' property — one that has city bulldozers lined up to level it. The Meal Makers building has the distinct misfortune of being located in an area the city is bent on redeveloping into upscale condos, shops and restaurants.

To transform Burien into Washington's next fashion plate, the city began scooping up property for the development, but it ran into a problem with the Strobels. Those pesky sisters wanted to stay put. To keep the project moving, the city needed a plan — and quick.

Its solution? Run a road through the Meal Makers building.

The city manager commanded his staff to “make damn sure” the road went through the building. After a botched first attempt (the layout would have only clipped the property, leaving the building itself intact), the staff redesigned the road to go right through Meal Makers. Then the city served the sisters with condemnation papers.

What could account for such brazen behavior? In a word, snobbery.

The city doesn't think the Meal Makers building is upscale enough for the bureaucrats' new highbrow vision for Burien. According to the judge who heard the sisters' legal challenge, the city feels that allowing it to stay “would be akin to having a Denny's restaurant next to the capitol building in Olympia.”

In fact, the judge said the city's decision to condemn “can be summarized as follows: 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.”

In light of this, you'd think the judge would have stopped the condemnation. He didn't, however, because he didn't think he could. You see, Washington law is so ridiculously deferential to the government that a judge must presume the government needs the property it condemns unless and until the owner can prove fraud.

The Strobel sisters were stuck. While the judge worried that the condemnation might be “oppressive” and an “abuse of power,” he didn't think it rose to the level of fraud.

To protect their property — and to prevent future condemnations motivated by an arrogant desire to eliminate the supposedly lowbrow — the Strobel sisters petitioned the Washington Supreme Court. Tomorrow, the court will consider whether to hear their case.

Michael Bindas is a staff attorney at the Institute for Justice Washington Chapter, which represents the Strobels in their fight to keep their property.



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