Opinion
No. 56710-1-I.
June 12, 2006.
Appeal from a judgment of the Superior Court for King County, No. 05-2-10304-3, Michael Heavey, J., entered August 5, 2005.
Counsel for Appellant(s), Eric Rolf Stahlfeld, Attorney at Law, 145 SW 155th St Ste 101, Seattle, WA 98166-2591.
Counsel for Defendant(s), David Gregory Hancock, Graham Dunn PC, Pier 70, 2801 Alaskan Way Ste 300, Seattle, WA 98121-1128.
Andrew Richard Chisholm, Montgomery Purdue Blankinship Austin, 701 5th Ave Ste 5500, Seattle, WA 98104-7096.
Camille Taylor Ralston, Montgomery Purdue Blankinship Austin, 701 5th Ave Ste 5500, Seattle, WA 98104-7096.
Margaret A. Pahl, Office of the Prosecuting Attorney, 516 3rd Ave Rm W400, Seattle, WA 98104-2385.
Counsel for Respondent(s), Michael R. Kenyon, Kenyon Disend PLLC, 11 Front St S, Issaquah, WA 98027-3820.
Affirmed by unpublished opinion per Grosse, J., concurred in by Becker and Dwyer, JJ.
In an eminent domain proceeding, a decree of public use and necessity may be entered for a proposed acquisition of private land when the use in question is a public use, the public interest requires it, and the property to be acquired is necessary to facilitate the public use. Here, the city of Burien determined that the taking of Strobel Family Investment's (Strobel) private property for use as public streets, public park space, and public parking is necessary to implement a public use, the development of Burien's Town Square. Given the absence of arbitrary and capricious or fraudulent actions by the city of Burien, the judgment of the trial court is affirmed.
FACTS
Shortly after the incorporation of the city of Burien (City) in 1993, the City Council adopted a 'Vision Statement,' a plan for Burien to become a city with a 'thriving, attractive and customer friendly city center and business.' In 1997, the City Council adopted a comprehensive plan including the City's desire to seek the development of a town square as the central focal point of the downtown core.
In 1999, policies were adopted by the City Council calling for the construction of new street segments to complete the downtown grid. The streets affected included the extension of S.W. 151st Street between 4th Avenue S.W. and 6th Avenue S.W., and the extension of 5th Avenue S.W. between S.W. 150th Street and S.W. 152nd Street. The property at issue here is located where the new street segments intersect, and also where a critical portion of a public park is planned to be part of the actual Town Square.
The City began to acquire properties within the Town Square site and distributed a nationwide request for proposals to select a developer. In 2003, the City selected Urban Partners, LLC, of Los Angeles as the Town Square Developer.
The City Council's resolution No. 201 adopted the site plan for the Town Square Project on October 18, 2004. The plan underlying this resolution includes the Strobel property, as streets, parking and a public park. The resolution provided that the site plan would be updated upon the availability of a formal survey. In January 2005, the amended site plan, reflecting a formal survey, was approved by the City Council. The adopted plan continues to reflect public streets, a public park and public parking on the property owned by Strobel.
Negotiations between the Strobel property owners and the City were unsuccessful. The City Council, through Ordinance No. 426, authorized acquisition of the Strobel property by eminent domain, including the building containing Meal Makers Restaurant, specifically declaring it to be 'necessary' for municipal street improvements, municipal parking and municipal parks, and otherwise for the 'public use of the City's Town Square Development Project.' Before the filing of the condemnation action, the City became aware of the controversy regarding the condemnation of private property for public use. This, combined with the Strobel property owners' unwillingness to negotiate the sale of property, led the City to determine that no portion of this property was to be included in any resale of various parcels by the City to Urban Partners for the private development portion of the project. The City Council directed that the Strobel property be removed from any private development portion of the plan. The City conceded at some point during the process that a small portion of the Strobel property might not be needed for public improvements, but the current plan includes all of the property in the public portion of the project, and no decision has been made otherwise. In fact, the May 2005 project plan depicts the use of any small remainder as additional park and public space.
The Strobel property owners disagree with the City's final decision regarding the Town Square Project site plan, and the use of their property for public streets, parks and parking improvements. But contrary to Strobel's beliefs, the City specifically considered and rejected a number of alternatives before making its final determination.
As noted above, on February 7, 2005, the City Council adopted Ordinance No. 426, finding that the acquisition by condemnation of property owned by Strobel was necessary for the construction of public streets, parks and parking. In June 2005, the City filed a 'Petition in Eminent Domain' and later that month filed a 'Motion to Adjudicate [the] Public Use and Necessity' of the property it sought to condemn. In August, the King County Superior Court entered an order granting summary judgment and adjudicating public use and necessity. A motion for reconsideration was filed and denied. This appeal follows.
ANALYSIS
By order entered August 5, 2005, the King County Superior Court granted summary judgment adjudicating public use and necessity for the condemnation of the Strobel property. The standard of review for this court is de novo.
This court reviews the grant of a summary judgment de novo. Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). A party opposing summary judgment may not rely on mere allegations or denials set forth in pleadings, but must set forth specific facts showing there is a genuine issue for trial. CR 56(e); See Tiffany Family Trust Corp. v. City of Kent, 155 Wn.2d 225, 230, 119 P.3d 325 (2005); Dickgieser v. State, 153 Wn.2d 530, 535, 105 P.3d 26 (2005).
The power of eminent domain is an inherent attribute of sovereignty. Once a state agency with the power of eminent domain makes an initial determination that condemnation is necessary, the matter moves into court for a three-stage proceeding. First, there is a decree of public use and necessity. Second, just compensation must be determined. Finally, just compensation must be paid and title transferred.
Boom Co. v. Patterson, 98 U.S. 403, 406, 25 L. Ed. 206 (1879); State v. King County, 74 Wn.2d 673, 675, 446 P.2d 193 (1968).
See generally, 17 William B. Stoebuck John W. Weaver, Washington Practice, Real Estate: Property Law sec. 9.28, at 635 (2d ed. 2004).
This case involves the first prong of the proceeding. In the case of In re Petition of Seattle Monorail Authority, the Supreme Court also briefly reviewed the underlying law of eminent domain:
HTK Mgmt., LLC v. Seattle Popular Monorail Auth., 155 Wn.2d 612, 629, 121 P.3d 1166 (2005); see also Central Puget Sound Reg. Transit Auth. v. Miller, 156 Wn.2d 403, 411, 128 P.3d 588 (2006).
Under long standing Washington jurisprudence, this court has developed a three-part test to evaluate eminent domain cases. State ex rel. Wash. State Convention Trade Ctr. v. Evans, 136 Wn.2d 811, 817, 966 P.2d 1252 (1998) (Convention Center). For a proposed condemnation to be lawful, the condemning authority must prove that (1) the use is really public, (2) the public interest requires it, and (3) the property appropriated is necessary for that purpose. Convention Ctr., 136 Wn.2d at 817 (citing [In re Petition of Seattle] Westlake, 96 Wn.2d [616,] 625, [ 638 P.2d 549 (1981)]; King County v. Theilman, 59 Wn.2d 586, 593, 369 P.2d 503 (1962)).
Strobel challenges whether the condemnation is 'necessary', specifically arguing that the City might turn around and sell a portion of the property to a private developer, which would benefit that private entity and not the City. But a review of the record indicates that Strobel's allegations are mere conjecture. Although early on, the city of Burien did consider selling a portion of the property acquired from Strobel to a developer to support the Town Square Project, once Strobel determined it would not negotiate with the City for the sale of the property, the City Council specifically set forth and determined that the Strobel property would be used only for public streets, public parks, or public parking.
'A determination that an acquisition is for 'public use' is not precisely the same thing as determining it is a 'public necessity,' even though the two terms do overlap to some extent. The 'question [as to] whether the contemplated use be really public shall be a judicial question.' Although the legislature may declare that a particular use of property is a 'public use,' that determination is not dispositive. However, a legislative declaration is entitled to great weight.
In contrast, the question of necessity, and thus the standard of judicial review of a declaration of public necessity, differs from that applied to a declaration of public use. A declaration of necessity by a proper municipal authority is conclusive in the absence of actual fraud or arbitrary and capricious conduct, as would constitute constructive fraud. Seattle Monorail Authority, 155 Wn.2d at 629 (citations omitted).
Further, given the parameters of the City's ordinances setting forth public use and necessity, this case is similar to Seattle Monorail Authority. There, the court in discussing the fact that the monorail station might not take up the entire footprint of the property sought to be condemned nevertheless upheld the condemnation of the entire property indicating that 'whether any portion of the property will ever be sold or leased is not known.' Here, Strobel, like HTK Management, LLC, the appellant in the Seattle Monorail case, argues that because the city of Burien might sell or lease surplus property, if any, during the development of Town Square, the court is required to undertake a searching judicial review of the necessity of the City's determination to condemn the entire property. But Strobel, like HTK in the earlier case, cannot point to any 'authority that requires a condemning authority to have a public use planned for the property forever.' Actually, Washington law is contrary to Strobel's argument. "Where property is taken, . . . with the intention of using it for a certain purpose specified in the ordinance authorizing the taking, as was done in this case, the city, doubtless, has the authority to change said contemplated use to another and entirely different use, whensoever the needs and requirements of the city suggest." Here, in order to condemn the private property in a permissible manner, the City must establish that the condemned property is necessary to a public use. 'Typically, challenges to necessity are raised when arguably excess land is seized or when condemnation is for a disguised private use.' Strobel argues that is what happened here. Strobel claims the city cannot condemn private property where it intends to turn around and sell a portion of the property to a private entity. But as noted above, that is not the current state of the law.
Seattle Monorail Auth., 155 Wn.2d at 633.
Seattle Monorail Auth., 155 Wn.2d at 634 (emphasis omitted).
Reichling v. Covington Lumber Co., 57 Wash. 225, 228, 106 P. 777 (1910) (quoting Seattle Land Improv. Co. v. City of Seattle, 37 Wash. 274, 277, 79 P. 780 (1905)).
Central Puget Sound Reg. Transit Auth., 156 Wn.2d at 411.
When it comes to such discretionary details as the particular land chosen, the amount of land needed, or the kinds of legal interests in that land that are necessary for the project, many Washington decisions have said that the condemnor's judgment on these matters will be overturned only if there is 'proof of actual fraud or such arbitrary and capricious conduct as would amount to constructive fraud.
17 Stoebuck Weaver, at 636 (quoting State v. Brannan, 85 Wn.2d 64, 68, 530 P.2d 322 (1975)).
In the context of condemnation proceedings, necessary means "reasonable necessity under the circumstances. State ex rel. Lange v. Superior Court, 61 Wn.2d 153, 377 P.2d 425 (1963). It does not mean immediate, absolute, or indispensable need."
Central Puget Sound Reg. Transit Auth., 156 Wn.2d at 411 (quoting Des Moines v. Hemenway, 73 Wn.2d 130, 140, 437 P.2d 171 (1968)).
In its argument Strobel mainly contends that condemnation is not necessary because the proposed road location could be moved slightly to the south to eliminate the destruction of Meal Makers Restaurant. But even where reasonable minds could differ on location of a proposed road, courts will not disturb the legislative body's decision that necessity exists so long as it was reached 'honestly, fairly, and upon due consideration' of facts and circumstances. If this can be met, there is little for the courts to review. Further, under the circumstances of all the alternatives, the restaurant building would be demolished.
Seattle Monorail Auth., 155 Wn.2d at 635 (citing Tacoma v. Welcker, 65 Wn.2d 677, 684-85, 399 P.2d 330 (1965)); Deaconess Hosp. v. Washington State Highway Comm'n, 66 Wn.2d 378, 406, 403 P.2d 54 (1965).
Deaconess, 66 Wn.2d at 406.
After review of the facts in the record, we will not disturb the city of Burien's finding of necessity for public use. Given the entire record, we cannot find any showing that the City acted arbitrarily or capriciously. The proper analysis in determining whether the City acted arbitrarily and capriciously must necessarily focus on the facts and circumstances of the request of the condemnor. No improper considerations have been shown here, and examination of the facts and circumstances surrounding the development of Burien's Town Square demonstrates a legitimate public purpose. The City Council determined that acquisition of the Strobel property was reasonably necessary and required for the construction of a Town Square. The City clearly intends to use the property for development of a central Town Square. The City's actions cannot be said to be arbitrary and capricious or fraudulent. Given the absence of actual or constructive fraud, we hold that the city of Burien's determination to condemn the entire Strobel property is necessary to facilitate a public use.
Welcker, 65 Wn.2d at 684.
The decision of the trial court is affirmed.
DWYER and BECKER, JJ., concur.