City of Blaine v. Feldstein

• Decision Date: 15 August 2005
• Docket Number: No. 55837-4-I.
• Citation: City of Blaine v. Feldstein, 117 P.3d 1169, 129 Wn. App. 73 (Wash. 2005)
• Parties: CITY OF BLAINE, a Washington municipal corporation, Respondent, v. Freda FELDSTEIN and John Doe Feldstein, wife and husband and the marital community thereof; Sid Feldstein and Jane Doe Feldstein, husband and wife and the marital community thereof; Bonnie Feldstein and John Doe Feldstein, wife and husband and the marital community thereof; Sandra Grant and John Doe Grant, wife and husband and the marital community thereof; Lindsay Feldstein and John Doe Feldstein, wife and husband and the marital community thereof as Trust Beneficiaries with Sid Feldstein, Trustee; and Glenn Feldstein and Jane Doe Feldstein, husband and wife and the marital community thereof as Trust Beneficiaries with Sid Feldstein, Trustee; and any and all other person(s) claiming an ownership interest therein, Appellants.
• Court: Washington Supreme Court

117 P.3d 1169

129 Wn. App. 73

CITY OF BLAINE, a Washington municipal corporation, Respondent, v. Freda FELDSTEIN and John Doe Feldstein, wife and husband and the marital community thereof; Sid Feldstein and Jane Doe Feldstein, husband and wife and the marital community thereof; Bonnie Feldstein and John Doe Feldstein, wife and husband and the marital community thereof; Sandra Grant and John Doe Grant, wife and husband and the marital community thereof; Lindsay Feldstein and John Doe Feldstein, wife and husband and the marital community thereof as Trust Beneficiaries with Sid Feldstein, Trustee; and Glenn Feldstein and Jane Doe Feldstein, husband and wife and the marital community thereof as Trust Beneficiaries with Sid Feldstein, Trustee; and any and all other person(s) claiming an ownership interest therein, Appellants.

No. 55837-4-I.

Court of Appeals of Washington, Division One.

August 15, 2005.

Greg Greenan, Zender Thurston P.S., Bellingham, WA, for Appellants.

Jonathan K. Sitkin, Richard A. Davis III, John R. Neumann, Chmelik Sitkin & Davis PS, Stephen Richard Fallquist, Bellingham, WA, for Respondent.

COLEMAN, J.

¶ 1 Under the Washington State Constitution, a city may condemn private property for public uses. Here, the City of Blaine petitioned to condemn property to build a public boardwalk in downtown Blaine. Because (1) the trial court did not abuse its discretion in determining that an evidentiary hearing was not required, (2) a public boardwalk constitutes a public use under RCW 8.12.030, (3) the particular boardwalk proposed by the City constitutes a public use, and (4) there is no evidence that the City's determination of necessity was arbitrary and capricious, we affirm the trial court's decision finding public use and necessity.

FACTS

¶ 2 In September 2004, the City of Blaine filed a petition to condemn property belonging to the Feldstein family to construct a public boardwalk in downtown Blaine. The City filed a motion for an issuance of an order adjudicating public use and necessity. Feldstein objected to this procedure and moved to strike the hearing, arguing that he was entitled to an evidentiary hearing to determine public use and necessity. Feldstein also moved to strike the City's declarations submitted in support of its motion. The trial court denied Feldstein's motions.

¶ 3 Following a hearing, the trial court granted the City's motion for entry of an order on public use and necessity. The trial court also entered findings of fact and conclusions of law regarding public use and necessity. Feldstein moved for reconsideration, which the trial court denied. Feldstein filed a timely notice of appeal.

ANALYSIS

¶ 4 Under the Washington State Constitution article 1, section 16, property may only be condemned for public uses.

Whenever an attempt is made to take private property, for a use alleged to be public under authority of this chapter, the question whether the contemplated use be really public shall be a judicial question and shall be determined as such by the court before inquiry is had into the question of compensation to be made. . . . Except as herein otherwise provided, the practice and procedure under this chapter in the superior court and in relation to the taking of appeals and prosecution thereof, shall be the same as in other civil actions[.]

RCW 8.12.090. Feldstein argues that RCW 8.12.090 clearly contemplates a testimonial evidentiary hearing to determine whether the City's proposed boardwalk constituted a public use. RCW 8.12.090, however, does not state that a testimonial evidentiary hearing is required. Rather, the statute requires that the same procedures used in "other civil actions" be used. In other civil actions, testimonial hearings are not always required. Under CR 7(b) "[a]n application to the court for an order shall be by motion[.]" The trial court has the discretion to determine whether there are factual and credibility issues that require a testimonial hearing. If there are no relevant factual disputes or credibility issues and the record is sufficient to fully inform the court, the case may be properly resolved without a testimonial hearing.

¶ 5 Feldstein cites to several condemnation cases where it appears that testimonial evidence was presented to the trial court. See State v. Brannan, et al., 85 Wash.2d 64, 66, 530 P.2d 322 (1975) (experts testified); State v. Belmont Improv. Co., 80 Wash.2d 438, 495 P.2d 635 (1972) (experts testified); State v. Kingman, 77 Wash.2d 551, 552, 463 P.2d 638 (1970) (discusses CR 52(c) which applies to bench trials); Des Moines v. Hemenway, 73 Wash.2d 130, 132, 437 P.2d 171 (1968) (trial held); State v. Burdulis, 70 Wash.2d 24, 25, 421 P.2d 1019 (1966) (mentions cross-examination of a state witness); State ex rel. Puget Sound Power & Light Co. v. Superior Court for Snohomish County, 133 Wash. 308, 309, 233 P. 651 (1925) (trial held). These cases, however, do not stand for the proposition that an evidentiary hearing with live testimony is required in all condemnation cases. The fact that trial courts hear oral testimony in some condemnation cases does not mean that a trial court must hear oral testimony in all cases. Likewise, Feldstein's argument that the City has failed to cite any cases where a testimonial hearing was not held in a condemnation case does not provide us with any guidance. The trial court must exercise its discretion in determining whether a testimonial hearing is required, and this determination depends on the circumstances of the case and the adequacy of the record presented to the trial court.

¶ 6 Here, the facts necessary to resolve the case are not in dispute.¹ Additionally, there were no credibility issues before the court. Indeed, even when pressed at oral argument, counsel for Feldstein could not identify what evidence he would have put on had the trial court allowed him to present testimony at the hearing. The trial court had all of Feldstein's objections to the project and the basis for those objections before it. The court had all of the information necessary, including briefs, deposition transcripts, and affidavits, to make an informed decision on whether the City's proposed boardwalk constituted a public use and whether condemning Feldstein's property was necessary for that use. Therefore, the trial court did not abuse its discretion in making this determination without hearing oral testimony.²

¶ 7 Next, we consider whether the trial court erred in determining that the proposed boardwalk constitutes a public use for the purpose of condemnation. "A decree of public use and necessity may be entered for a proposed acquisition only when (1) the use in question is really a public use, (2) public interests require it, and (3) the property to be acquired is necessary to facilitate the public use." Hemenway, 73 Wash.2d at 138, 437 P.2d 171. RCW 8.12.030 authorizes cities to condemn private property for public use:

Every city and town and each unclassified city and town within the state of Washington, is hereby authorized and empowered to condemn land and property, including state, county and school lands and property for streets, avenues, alleys, highways . . . public parks, drives and boulevards. . . and for any other public use after just compensation having been first made or paid into court for the owner in the manner prescribed by this chapter.

RCW 8.12.030 (emphasis added). Feldstein argues that because a boardwalk is not one of the enumerated public uses in RCW 8.12.030, the City does not have the authority to condemn property for this use. While the statute does not specifically list "boardwalk" as a public use, the statute does list streets, avenues, alleys, public parks, drives, and boulevards. The statute also states that property may be condemned for "any other public use."

¶ 8 Here, the City proposed to build a pedestrian boardwalk. This is akin to a street, alley, or avenue that is restricted to use by pedestrians. The boardwalk will be used to convey pedestrians, just as a street is used to convey vehicles and/or pedestrians. Additionally, the boardwalk is like a park, as it allows the public to access scenic views. Furthermore, the boardwalk would fall under the "any other public use" provision of the statute. Application of this provision "is restricted to uses which are of the same kind as those enumerated in the section or which are specifically authorized by the legislature." In re Petition of Seattle, 96 Wash.2d 616, 633, 638 P.2d 549 (1981). As noted above, a boardwalk is akin to several of the enumerated uses in RCW 8.12.030 and thus "of the same kind" as those enumerated in the statute. Therefore, as a matter of law, a public boardwalk is a public use under RCW 8.12.030.

¶ 9 Having determined that RCW 8.12.030 authorizes a City to condemn property for a public boardwalk, the next issue we address is whether this particular boardwalk proposed by the City constitutes a public use. A trial court's decision on public use will be reversed if the finding is not supported by substantial evidence. State v. Bank of California, 5 Wash.App. 861, 866 491 P.2d 697 (1971). Feldstein focuses on several comments made by members of the Blaine City Council and other Blaine officials dealing with the boardwalk as part of the economic revitalization of Blaine. Contrary to Feldstein's arguments, these statements are not conclusive on the issue of public use. Two cases involving the Westlake Center project in downtown Seattle are particularly helpful in resolving this issue, In re Petition of Seattle, 96 Wash.2d 616, 638 P.2d 549 (1981) (Westlake I) and In re Petition of Seattle, 104 Wash.2d 621, 707 P.2d 1348 (1985) (Westlake II).

¶ 10 Initially, the City of Seattle proposed a comprehensive architectural plan for the Westlake project. Seattle sought to condemn properties for the entire project, which would include a public park, exterior public open spaces, a public parking...