Life de-railed

Ken and Barbara Miller have been forced to take a bad ride from Sound Transit.
by Joe Malik
Feb 07, 2008

UPDATE: Ken Miller awarded $500,000 in court.

This month, Ken Miller will find out if his proverbial fight with city hall was worth it.

For the past three years, Miller has spent the better part of his days fighting to keep property that regional transportation authority Sound Transit says it needs to complete a long-delayed stretch of commuter rail service between Tacoma and Lakewood. The method of acquisition is known as eminent domain — the constitutional right granted to governments and public agencies to take private property without the owner’s consent, usually for development of military bases, government buildings, roads, and rail lines.

It is a power that Sound Transit has used a hundred times while building out its various rail systems in the Puget Sound region and one the agency will likely use a hundred times more as it continues, said former Sound Transit Board Chair John Ladenburg, who recently announced his candidacy for the state’s attorney general seat.

In the Millers’ case, the land is needed to complete the agency’s planned Sounder commuter rail line from Tacoma to Lakewood and will be occupied by a parking lot for riders in South Tacoma. According to Miller, his attorneys, court documents, and four members of the state Supreme Court, the agency was well on its way toward taking Miller’s land before he was ever notified. He fought the seizure of his land primarily on grounds that Sound Transit had not provided him with sufficient notice that it planned to take his property. Unfortunately for Miller and his wife, Barbara, the other five members of the state Supreme Court disagreed, denying the Millers’ appeal. They were forced to sign the 1.25-acre piece of land over to Sound Transit in mid-2006.

“This has been an education,” says Miller. “But it’s not the kind of education anyone would ever want.”

Sound Transit began proceedings to seize the Millers’ property after posting a reference to acquisition of “certain real property interests” necessary for construction of Sounder rail stations in Lakewood and South Tacoma. The agency did not, as it had in the past, publish notice in newspapers, on the property or in public places. The court decision was the first in the United States to declare Internet notice alone to be sufficient for government agencies preparing to take private property.

Pierce County Executive and former Sound Transit Board Chair John Ladenburg takes issue with Miller’s contention that he was blindsided by the announcement of condemnation proceedings. Ladenburg, a former lawyer, claims that the decision was made in 2000 to take Miller’s land, unless Sound Transit officials could convince Miller to part with it for cash, and had begun purchase negotiations with the Millers then.

Miller says that until the condemnation proceedings commenced, he had been told by Sound Transit that his property was only one of four parcels being considered for use.

“He (Ladenburg) is either lying or has been misinformed,” says Miller.

Prior discussion aside, Ladenburg contends that Sound Transit was unable to pay what Miller wanted for the property, so the agency decided to vote to condemn it. Ladenburg concedes that Miller was not informed of the meeting at which Sound Transit intended to vote to proceed with condemnation, saying the vote was a simple, ministerial function — formalizing a decision that had already been made and one that the Millers knew about. Since the decision had already been made, telling the Millers that the agency was going to formalize the decision was moot.

“Sound Transit decided years ago to acquire the property, by purchase or by condemnation,” says Ladenburg. “We couldn’t come to an agreement, so we began condemnation proceedings. The decision wouldn’t have changed if they (the Millers) had been able to show up to complain about it.”

When asked about the Miller case, Assistant Attorney General for Government Accountability Tim Ford suggests that public meetings serve a vital purpose, and should not be considered insignificant by any public official.

“You only have to look at how the state Legislature reacted to the case to see how important it was,” says Ford. “They almost immediately enacted a law specifically because of that case requiring that property owners be informed.”

Proper notice aside, the Millers’ attorney at the time of the state Supreme Court decision, Charles Klinge, claims Sound Transit’s process was full of erroneous facts and improprieties. The Millers provided evidence, for example, that Sound Transit made false public statements that alternative sites had contamination problems. Prior to the Supreme Court hearing, a trial court indicated that Sound Transit “negligently omitted and missed some facts and evidence, which ideally should have been considered and, if considered, could have reasonably led to a different result.”

Knowing that, the state Supreme Court majority ruled against Miller. Justice Mary Fairhurst wrote for the majority that the Millers were “not entitled to actual individualized notice.”

Supreme Court Justice Jim Johnson wrote in dissent, “Only by adopting a rubber-stamp standard of review at odds with Article 1, Section 16 (of the state constitution) and relevant case law can the majority look the other way. To rely on clearly erroneous factual information of such magnitude amounts to arbitrary or capricious conduct.”

Miller echoes Johnson’s concern, suggesting that his case should serve as a warning and a lesson to property owners throughout the state. Watchdog groups claim Miller’s experience is one of many that signal rampant and growing eminent domain abuse by cities and public agencies nationwide. Eminent domain abuse has erupted, they say, in the wake of a recent United States Supreme Court decision that gives governments the right to take property for private development. In Kelo vs. New London, the United States Supreme Court denied an appeal in New London, Conn., by property owners whose land was targeted by a city sponsored development corporation for transformation into a resort, hotel and residential community. Watchdog group the Castle Coalition claims the ruling “obliterated the federal public use requirement by equating ‘public use’ with ‘private use.’”

Ladenburg emphasizes that the Kelo case has little relevance when considering the Miller’s plight — the Sounder rail service is clearly a public use. Observers contend, in turn, that strict protections in Washington make it unlikely that the effect of the Kelo ruling will spread here.

Executive Director William Maurer of the state chapter of the Institute for Justice replies in a brief for the Washington Policy Center, “Although eminent domain abuse in this state has neither been as egregious or commonplace as it has in some other states, it has still occurred and it has done so under the very constitution and state laws municipalities, developers and their lobbyists and attorneys assure us prevent this type of abuse.”

Watchdog group the Castle Coalition’s 50 State Report Card for 2007 gives Washington a C- grade for legislative attention to eminent domain protections. Washington received praise for passage of House Bill 1458 in 2007, which requires that a certified letter be sent to property owners when governments and empowered agencies decide they want to take private property. Washington Attorney General Rob McKenna has presented two bills this legislative session that would make it harder for government agencies to abuse the power of eminent domain.

Miller laughs in amazement as he talks about the past three years, during which time he has spent nearly $500,000 defending what he claims is his right to keep the property. Given Sound Transit’s best offer of $566,000, minus the cost of his legal and personal expenses, Miller estimates he could receive nothing for the property and his time. He does find a dim silver lining in the fact that his troubles may protect other property owners from what he describes as abuse of the powers given to public agencies.

“I hope no one ever has to go through this,” he says. “At this point, I don’t think it was worth fighting.”

User comments

submitted 04:58 on Feb 7, 2008 by

I believe that the representations of Ken and Barbara Miller are specifically and consistently correct. And that those of John Ladenburg are routinely and intentionally fallacioius. Considering that Ladenburg now is seeking to be the attorney general of the State of Washington--a position demanding high standards of integrity and performance--I hope that Weekly Volcano and other journals will carefully scrutinize this matter, dig into it, and report what they find. Given the importance, it should not be presented simply as a "he says/she says" dispute. What I believe a diligent inquiry will find is that John Ladenburg cannot be believed, in his representations, and cannot be counted on to deal honestly in his public role. This ought to be known in advance of any votes for attorney general. The Democratic Party would be well-served to get to the bottom of this before depriving itself of another, better candidate.

submitted 12:47 on Feb 8, 2008 by

How about we put Ladenburg in the dictonary, it means to, lie,cheat,steal,threaten, and then slander the people you just spent millions of taxpayers dollars on trying to destroy them! Way to go John you've done a great job of tarnishing Sound Transit, Pierce County, and your family name, etc. NO VOTE FROM ME!

submitted 05:08 on Feb 9, 2008 by

"Watchdog groups?" What a joke. Malik quotes right wing property rights groups funded by business interests who view land as a commodity, and nothing else. Ken Miller is the quintessential victim, trying to portray himself as an impoverished citizen seeking justice. Also a joke. Folks on the left and right are going to need to let go of this victim's complex thing if we ever hope to restore America to greatness. When Interstate 5 was built in the 1960's (forming the backbone of our economic properity) tens of thousands of people had their properties displaced by the freeway. I don't recall hearing about a single whiner who decided their own personal interest superceded the overall community interest. Some of us actually have jobs we have to get to 5-6 days per week. I know this is a novel concept if you're a land speculator who owns parcels piled with junk.

submitted 10:17 on Feb 10, 2008 by

Re: the comment by the Ladenburg Liars posted Feb. 9th at 5:08. A land speculator does not own a piece of property for thirty years. A land speculator is also interested in selling his property. The Millers have owned the property for thirty years and did not want to sell it. By the way, Mr. Pierce County Executive and Mrs. City Councilwoman, your job is to do the public good, not to be serving the wealthy. How kind of you to save the neighboring Gilchrist dealership all of those rezoning fees and increase the value of their property when you took the Miller property. How convenient that you decided to take the Miller property, instead of the Gilchrist's (which happened to be on the right side of the tracks). Mr. Executive, I hope you and Mr. Gilchrist enjoy that golf course you spent your 5-6 day work week building. According to your public disclosure reports, you and Connie are also spending some leisure time eating at fancy restaurants around the world on the Puyallup Indians dime. Sure nice how they can term bribes as "campaign financing". If we ever to hope to restore America to greatness, we need to rid our country of self-serving politicians like you, Mr. Ladenburg. How about the novel concept of not accepting campaign funds from people who then expect you to do their bidding and how about not spending those campaign funds on outrageously priced travel expenses. How do you justify spending campaign money on a thousand dollar meal at an exclusive restaurant in Arizona? Mr. Ladenburg, you are the joke!

submitted 02:09 on Feb 29, 2008 by ldozy1

Go Volcano... it's nice to have at least one source of reporting here that isn't suffering from too much shoe polish on their tongue! I'd also love to see some further investigation on this- especially the WASTE of tax dollars that used so many attorneys ( maybe Johns golf buddies?) Here's MY campaign slogan for the AG election... " No way in H-LL John L !" Everyone can feel free to use it!

submitted 11:34 on May 8, 2008 by Basic Decency

John Ladenburg is smug, arrogant,evasive, non-transparent official, and is the ANTITHESIS of the "People's Advocate". What did he do to treat the Miller's fairly and humanely while chairing Sound Transit? Oh, yeah, he defended the right for Sound Transit to BURY the reference to a meeting regarding the Miller's 30-year-held property on the Sound Transit website SO DEEP that they were not aware of the action taken against them. He still thinks that was OK. Is that the person you want to represent you as Attorney General? Rob McKenna is doing a fine (bipartisan)job. The LAST thing we need is Ladenburg's termed-out, government-dole, obfuscating arrogance representing us.Heaven help us.

Comment on this article