Opinion
No. 54655-4-I
Filed: December 27, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 04-2-12580-4. Judgment or order under review. Date filed: 07/23/2004. Judge signing: Hon. Michael J Fox.
Counsel for Appellant(s), Leslie Clay III Terry, Attorney at Law, 8420 Dayton Ave N, Seattle, WA 98103-4227.
Counsel for Respondent(s), Sharon Elizabeth Cates, Foster Pepper Shefelman, 1111 3rd Ave Ste 3400, Seattle, WA 98101-3299.
P. Stephen Dijulio, Attorney at Law, 1111 3rd Ave Ste 3400, Seattle, WA 98101-3264.
Property owners Young Lee and Taiki Lee (collectively, 'the Lees') challenge the trial court's order on public use and necessity and the conclusion that the Seattle Popular Monorail Authority's (Seattle Monorail Project, 'SMP') condemnation of the Lees' property is necessary for the construction, operation and maintenance of the City of Seattle's monorail transportation system. The Lees argue SMP did not establish the necessity to condemn their property and SMP's decision was arbitrary and capricious because SMP did not identify a specific need for the property and there are alternative sites available to construct, operate and maintain the monorail system. We affirm.
FACTS
As authorized by state law, RCW 35.95A, the voters of the City of Seattle created the SMP as a transportation authority and approved the Seattle Popular Monorail Plan to construct and operate a monorail transportation system in the City. RCW 35.95A.050 authorizes SMP to acquire public monorail transportation facilities by condemnation and to construct and operate facilities for the monorail. RCW 35.95A.050. Under RCW 35.95A.010(5), public monorail transportation facilities are defined as a transportation system that utilizes train cars running on a guideway, together with the necessary passenger stations, terminals, parking facilities, related facilities or other properties, and facilities necessary and appropriate for passenger and vehicular access to and from people-moving systems, not including fixed guideway light rail systems.
The Lees concede SMP is authorized under RCW 35.95A to condemn land and property rights for the construction, operation and maintenance of public monorail transportation facilities.
On June 2, 2004, SMP adopted a resolution authorizing condemnation of the Lees' real property located at 407 Broad Street for construction and operation of the proposed monorail Green Line. The Lees' property is part of a triangular tract of land located west of Fifth Avenue between Broad Street and John Street. The plans for the Green Line's Fifth Broad monorail station show that it will be built on the west side of Fifth Avenue between John and Broad at the base of the triangular tract. The Lees' property is approximately 1900 square feet and is located at the apex of the triangular tract. A building currently occupies nearly the entire lot. SMP plans to immediately demolish the building on the Lees' property and use the property as part of the construction site for the Fifth Broad Station and the Green Line. According to the proposed plan, the Fifth Broad monorail station will be built on the lots adjacent to the Lees' property.
The sides of the triangular lot owned by the Lees measure 57.30 feet, 66.31 feet and 87.65 feet.
On June 4, SMP filed a petition for condemnation and asked the trial court to find that the Lees' property was necessary for a public purpose and public use and to schedule a trial to determine just compensation. In support of its petition for condemnation, SMP submitted declarations from Joe McWilliams, the SMP Director of Right of Way Acquisitions, and Behrooz Emam, SMP's Manager of Design. McWilliams said the Lees' property was necessary for the construction, operation and maintenance of the project, and emphasized the need and importance of the property to avoid construction delays and additional costs. Emam described in detail the various uses for the Lees' property during construction, including 'supervision facilities, staging and lay-down areas, and materials and equipment storage areas.' Emam stated there is a lack of available space in the immediate vicinity for these necessary activities, and the property 'provides necessary access due to its unique location and the fact that it is surrounded by public rights of way.' Emam also indicated that because the design plans for the Fifth Broad Station are preliminary, portions of the Station or Green Line may ultimately be constructed on the Lees' property.
Clerk's Papers (CP) at 26.
CP at 26.
The Lees conceded SMP is authorized to condemn property for the monorail and the condemnation was for a public use, but argued SMP did not need their land, which is adjacent to the property where the Fifth Broad Station will be built. The Lees claimed SMP acted in bad faith or in an arbitrary and capricious manner because the purported need to use their property for a construction site was not supported by sufficient evidence. The Lees also argued their land was too small to support the various construction site uses Emam described, and they presented Young Lee's declaration and photographs to show there were alternative sites available in the immediate vicinity that could support construction.
The trial court concluded that the use for which SMP sought to condemn the Lees' property is a public use, acquisition of the property is in the public interest, and it was necessary to serve the public interest. The court entered an order on public use and necessity granting SMP's request to condemn the Lees' property and scheduled a trial to determine just compensation. The Lees appeal.
ANALYSIS
The Lees and SMP do not disagree with the established legal principles that govern SMP's condemnation of the Lees' property. To condemn the Lees' property, SMP must show (1) the use is public; (2) the public interest requires it; and (3) the property appropriated is necessary for that purpose. State ex rel. Washington State Convention and Trade Center v. Evans, 136 Wn.2d 811, 817, 966 P.2d 1252 (1998).
Under Article I, sec. 16 of the Washington State Constitution, the determination of public use is a judicial question. Article I, sec. 16 provides, in part:
Whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined as such, without regard to any legislative assertion that the use is public .
On appeal, the Lees do not dispute that the purpose of the SMP project is a public use, but they contend SMP failed to establish their property was necessary for the project because SMP did not identify a specific use for the property and alternative sites for a construction site are available. Whether a property is necessary for a public use is a legislative question. Evans, 136 Wn.2d at 823. A determination of necessity by a legislative or administrative authority is conclusive in the absence of proof of actual fraud or such arbitrary and capricious conduct as would constitute constructive fraud. Evans, 136 Wn.2d at 823; State v. Brannan, 85 Wn.2d 64, 68, 530 P.2d 322 (1975). Arbitrary and capricious action has been defined as 'wilful and unreasoning action, without consideration and regard for facts or circumstances.' Miller v. City of Tacoma, 61 Wn.2d 374, 390, 378 P.2d 464 (1963). 'A finding of fact made without evidence in the record to support it, and an order based upon such finding, is arbitrary.' Id. 'Where there is evidence in the record, however, and '[w]here there is room for two opinions, action is not arbitrary or capricious when exercised honestly and upon due consideration, even though it may be believed that an erroneous conclusion has been reached." Id., quoting Smith v. Hollenbeck, 48 Wn.2d 461, 464, 294 P.2d 921 (1956). The property owners bear the burden of showing the condemning authority's determination of necessity was arbitrary and capricious. State v. Burdulis, 70 Wn.2d 24, 26, 421 P.2d 1019 (1966).
The Lees argue that because SMP failed to establish a specific need to use their property, SMP's decision to condemn an 'assemblage' of land is arbitrary and capricious. Emam in his declaration describes the need for the Lees' property during construction:
From the Property, the DBOM contractor will be able to mobilize its forces by staging trailers to manage its own and its subcontractors' workforces. The management of the construction will require trailers to house work space for the contractor's superintendent and other staff for the Project, the special testing inspectors, and the City of Seattle's and the SMP's inspection and management staff. Typically, each subcontractor will also have a trailer for its own staff work space at the same location.
'DBOM' stands for Design, Build, Operate and Maintain. CP at 25.
In addition, the Property will be available to the DBOM contractor for use as a staging and lay-down area, and for the storage of construction materials and equipment to support construction of both the [Station] and other portions of the Green Line alignment. In addition to the materials and equipment storage needed for the station Project, in order to accomplish the Green Line alignment construction, the DBOM contactor will need staging and lay-down areas for guideway beams and for material for the construction of the foundations and columns, including electrical parts, steel reinforcement, and other components. In addition to these materials, the equipment required for this work will also need to be staged from the Property. Such equipment includes drilling equipment for the construction of the foundations, soils testing equipment, lifts and crane parts, and delivery trucks.
CP at 26-7.
The Lees argue there is no evidence their small parcel can support all the construction activities described by Emam. But the Lees' argument ignores the fact that their property is adjacent to other parcels being condemned and will be combined to create a larger area for the construction site and the monorail facilities. In addition, Emam does not state the property will be used for all of the purposes he describes at one time. He says '[t]he Property is expected to be available for the construction for the entirety of the SMP Green Line Project construction (5-6 years).' The Lees also argue 'there [is] no evidence to support any one of these examples.' But Emam's declaration describes how that the property 'will be used' for these construction purposes, and the Lees have not submitted any evidence to support the assertion that their property cannot be used as Emam describes.
CP at 27.
Appellants' Brief (App. Br.) at 15.
CP at 27.
The Lees also argue SMP's determination of necessity is premature because the plans for the Green Line and the Fifth Broad Station are not final. The Lees rely on Emam's statement in his declaration that the design plans for the Fifth Broad Station are 'preliminary' to argue SMP may not need the Lees' property when the plan is final. The word 'necessity,' when used in the eminent domain context, means reasonable necessity, under the circumstances of a particular case. City of Tacoma v. Welcker, 65 Wn.2d 677, 683, 399 P.2d 330 (1965). 'It does not mean absolute, or indispensable, or immediate need.' Id. at 684. 'Reasonable necessity for use in a reasonable time is all that is required.' Id. Emam's declaration unconditionally states SMP will use the Lees' property for construction, and acknowledges the possibility that it could also be used for the location of the monorail facilities themselves. McWilliams' declaration emphasizes the importance of condemning the Lees' property so the contractors who will be building the Green Line and the Fifth Broad Station can start demolition and use of the property when construction begins at the end of 2004. SMP's condemnation of the Lees' property is not premature, and was not arbitrary and capricious.
CP at 27.
The Lees claim SMP misled the trial court when it argued that any delay in transferring possession of the Lees' Property could result in significant additional cost to taxpayers. But SMP's assertion that a delay could result in an increase in cost was made in the context of requesting an expedited hearing on public use and necessity and is irrelevant to the question of whether SMP acted in bad faith or arbitrarily and capriciously when it determined the Lees' property was necessary.
Assuming SMP has established the need for the Lees' property for a construction site, the Lees contend there is no evidence to support SMP's claim that their property is a critical construction work area because there is evidence that other land is available for the construction site. Emam's declaration states the Lees' property is critical to the success of the project because construction of the Green Line through downtown Seattle and north downtown 'is hampered by the lack of available construction work areas,' and the site of the Fifth Broad Station 'is particularly difficult because of the small size, their combined irregular shape (triangular), and the bordering busy arterial streets.' According to Emam,
CP at 26.
CP at 26.
To construct the Project, the [Design, Build, Operate, Maintain (DBOM)] contractor will need nearby access for supervision facilities, staging and lay-down areas, and materials and equipment storage areas. The area around the Seattle Center does not have space or facilities for the DBOM contractor to locate its oversight trailers, store materials and equipment, or coordinate Project elements. The Property not only provides space for these critical functions, but also provides necessary access due to its unique location and the fact that it is surrounded by public rights of way.
CP at 26.
The Lees rely on Young Lee's Declaration to argue there is other land in the vicinity of the proposed Fifth Broad Station and Green Line that would provide alternative sites for the necessary construction activities Emam describes in his declaration. But even if other property is available, the Lees have failed to show SMP's decision to use their property for construction, operation and maintenance of the monorail facilities was arbitrary and capricious.
The location, design, and engineering details of a transportation project are administrative and legislative decisions that are only subject to review for arbitrary and capricious action. Brannan, 85 Wn.2d at 67-8. Although the courts may well determine from the evidence whether a project is for the public benefit, convenience or necessity, they are not trained or equipped to pick the better route, much less design and engineer the project. Thus, the rule that leaves these decisions to the administrative agencies is a sensible one consistent with the idea that the public's business be carried out with reasonable efficiency and dispatch by those possessing the superior talents to accomplish the public purposes.
Deaconess Hospital v. Washington State Highway Commission, 66 Wn.2d 378, 405, 403 P.2d 54 (1965). Absent a showing of 'wilful and unreasoning action, without consideration and regard for facts or circumstances,' SMP's decision to condemn the Lees' property is not arbitrary and capricious. Miller, 61 Wn.2d at 390. Here, in addition to stating that the property was necessary for construction, operation and maintenance of the monorail and may be used for the Station and the Green Line, Emam describes the property's critical and unique location. The Lees' property is adjacent to the site of the planned Fifth Broad Station and Green Line and is surrounded by public rights of way that provide necessary access. While we recognize the Lees' frustration and acknowledge there may be room for a different opinion regarding alternative sites, we cannot conclude SMP's decision to condemn the Lees' property was arbitrary and capricious. We affirm the order on public use and necessity and deny SMP's request that sanctions be imposed against the Lees.
SMP requests sanctions on appeal under RAP 18.9(a). "An appeal is frivolous if there are no debatable issues upon which reasonable minds might differ, and it is so totally devoid of merit that there [is] no reasonable probability of reversal." State ex rel. Quick-Ruben v. Verharen, 136 Wn.2d 888, 905, 969 P.2d 64 (1998), quoting Presidential Estate Apartment Assocs. v. Barrett, 129 Wn.2d 320, 330, 917 P.2d 100 (1996). "[A]ll doubts as to whether the appeal is frivolous should be resolved in favor of the appellant." In re Marriage of Penry, 119 Wn. App. 799, 804, fn.2, 82 P.3d 1231 (2004), quoting Streater v. White, 26 Wn. App. 430, 434-35, 613 P.2d 187 (1980). SMP has not shown this appeal was frivolous and we conclude sanctions are not warranted.
AGID, J. and KENNEDY, J., Concur.