¶37 (dissenting) — In this classic bait-and-switch case, Central Puget Sound Regional Transit Authority (Sound Transit) changed its condemnation claim during trial from what it told the property owner when the “settlement” offer was conveyed. No offer was ever “on the table” for property interest claimed during trial. The offer caused, if not compelled, the property owner to seek fair value for their property at trial, where Sound Transit essentially said, “Never mind, we do not need that much property, and therefore settlement should be for a lesser fair value for the condemned property interest.” Torturing the statutory purpose, the majority denies the property owner fees and costs even though no offer was ever made for the property Sound Transit actually took. Under the statute as written, this “changing the rules after the game is played” is unsupportable, or should be. The majority’s new rule encourages such gamesmanship. I dissent.
¶38 The majority incorrectly denies Airport Investment Company (AIC) its statutory entitlement to attorney fees. A *353straightforward reading of the statute discloses that any “offer” must be for the “interest in the property being condemned.” RCW 8.25.070(1)(a). The majority essentially rewrites this provision and untethers the “offer” from the “interest in the property being condemned,” defying common sense and the most elementary of principles of statutory construction and contracts. Some relationship must exist between a condemnor’s offer and what it is taking. This case arose because Sound Transit changed its claim during trial.
¶39 The majority erroneously concludes that because Sound Transit made “any” offer, no fee award is due under RCW 8.25.070(1).10 Public policy, legislative intent, and well-settled principles of statutory interpretation should mean that you cannot divorce the offer from the interest in the property by changing the claim after the “offer” was made and rejected. A straightforward application of the language of the statute requires that the “offer” be for the “interest in the property being condemned.” No other reading makes sense.
¶40 The purpose of RCW 8.25.070 is to encourage con-demnors to make fair offers, thus avoiding litigation and encouraging settlement before trial. See State v. Costich, 152 Wn.2d 463, 471, 98 P.3d 795 (2004). The majority at least acknowledges that our precedent requires a condem-nor to present an adequate taking description before trial to allow the landowner time to prepare for trial. Majority at 347 (citing In re Municipality of Metropolitan Seattle, 67 Wn.2d 923, 928, 410 P.2d 790 (1966) (Kenmore Props.)). It is true that a property owner before trial has a “right to be adequately advised of the exact nature of the proposed *354taking, so that he [or she] may evaluate the resultant damage.” Kenmore Props., 67 Wn.2d at 927. However, the majority’s reading of Kenmore Properties ignores that the same reason why a property owner must be adequately informed of the exact nature of the taking before trial underlies why he or she must be informed of the exact nature of the taking when being given a settlement offer. It makes sense that a condemnor must provide the property owner a description of the taking to allow the landowner to make a decision to accept any offer and, if not, prepare for trial.
¶41 For the property owner to determine if a settlement offer is fair—and consequently whether to litigate the condemnation action—the property owner must know what exactly Sound Transit is offering and what property interest Sound Transit is taking in exchange for that offer. Any change to what Sound Transit provides to the property owner makes the calculation impossible.
¶42 Engaging in what is essentially a statutory rewrite, the majority claims that AIC failed to demonstrate that the temporary construction easement (TCE) was inadequately described, or that the changed TCE “otherwise resulted in prejudice to its trial preparations,” or that Sound Transit “committed bad faith or engaged in gamesmanship in its settlement negotiations.” Majority at 347. Under the majority’s view, evidently, all the statute requires is that any offer “comes close” to describing the property and, if so, the property owner must now prove some type of materiality or prejudice. Nowhere in the statute does it say this. What the statute says is that the offer must match the property interest sought. In this case, at trial, both the physical footprint and the duration changed from that specified in the offer. Whether this change was or was not “material” to the property owner’s decision can never be known with certainty. Nor should condemnation trials include this issue. One certainty is established: the property owner never had the decision to accept an offer never presented.
*355¶43 The majority offers no cases to support its rule that a court must somehow consider materiality of any changes. Unfortunately, the majority fails to explain how the property owner can prove “materiality”—by what standard or much else. Fortunately, the statute answers this question. The statute provides that the burden is on Sound Transit to make offers for what it wants. Any change voids the offer.
¶44 Even if it were, under the statute, appropriate to engage in such an inquiry, a taking reduced by both its physical footprint and a reduction in duration is a lesser taking. A lesser taking is material in relation to the evaluation of the offer of just compensation. Here, the original TCE allowed for exclusive use of up to 1,080 days; the new TCE narrowed that exclusive use to 160 days.11 The changes included a 25 percent decrease in the area of the easement and a reduction of the duration by 2.5 years. Sound Transit presented an entirely different picture of the taking to the jury than its pretrial offer had specified. Under the majority’s approach, a condemnor can overstate its taking at the beginning of condemnation proceedings and then present the jury with a lesser taking to insulate itself from having to pay a fee award. While this likely was not the deliberate strategy of Sound Transit, the majority seems to ignore the possibility and risk of gamesmanship and abuse from its result, which conflicts with the statutory purposes.
¶45 The majority claims RCW 8.25.070(1)(b)—which separately awards fees to the condemnee when the condem-nor’s offer is less than 90 percent of the jury’s just compensation verdict—provides a safeguard against the risk this potential abuse. Majority at 348. For this ostensible safeguard to be triggered, the jury award must necessarily be greater than the pretrial offer, which will almost never be the case when the property interest is reduced. In other *356words, RCW 8.25.070(1)(b) protects the condemnee only when the condemnor has offered less than what the jury awards. In instances where the pretrial offer is based on a taking that is less than the taking presented at trial— either by its duration or its physical amount or both, as is the case here—then the jury award will never be less than the pretrial offer. Under the statute, this does not make sense. Apparently, no question in this case exists that had Sound Transit gone to trial on its original claim, the award would have been larger. Because of the difference, no comparison between the offer and the award can be done.
¶46 The statute was designed to protect property owners who receive unfair settlement offers from bearing the costs of pursuing just compensation. Conversely, the statute was also designed to protect Sound Transit from bearing the costs of litigation when a fair offer of settlement is made. The property owner has a choice to make. If it decides to litigate, the statute determines fairness by comparing what was offered before trial to what the jury awarded. That comparison is simple where the taking on which the initial offer was based is the same as the taking evaluated by the jury. It becomes impossible and meaningless to compare the pretrial offer to the jury award where the property interests are different.
¶47 Under the statute, an offer is inextricably linked to the property interest on which the offer is made. In this case, because the offer was for a different property interest than that sought at trial, it is simply void and AIC is statutorily entitled to recover its fees and costs. For these reasons, I dissent.
Wiggins and Gordon McCloud, JJ., concur with Johnson, J.“(1) Except as otherwise provided in subsection (3) of this section, if a trial is held for the fixing of the amount of compensation to be awarded to the owner or party having an interest in the property being condemned, the court shall award the condemnee reasonable attorney’s fees and reasonable expert witness fees in the event of any of the following:
“(a) If condemnor fails to make any written offer in settlement to condemnee at least thirty days prior to commencement of said trial.” (Emphasis added.)
The record does not disclose exactly when Sound Transit made this change. We can presume that trial preparations and discovery were complete and at the very least the appraisal was done.