City of Seattle v. Kaseburg

• Decision Date: 26 March 2018
• Docket Number: No. 76204-4-1,76204-4-1
• Citation: 467 P.3d 115,13 Wash.App.2d 322
• Court: Washington Court of Appeals
• Parties: The CITY OF SEATTLE, a municipal corporation, Respondent, v. Frederick A. KASEBURG, an individual; Mortgage Electronic Registration Systems, Inc., a Delaware corporation; Bank of America, N.A., a Delaware corporation; and King County, a subdivision of the state of Washington, Appellants. The City of Seattle, a municipal corporation, Respondent, v. Keith L. Holmquist, an individual and Personal Representative of the Estate of Kay A. Burdine; Heirs of Kay A. Burdine, deceased and Keith L. Holmquist; J.P. Morgan Chase & Co., successor-in-interest to Washington Mutual Bank, a Delaware corporation; and King County, a subdivision of the state of Washington, Appellants.

13 Wash.App.2d 322

467 P.3d 115

The CITY OF SEATTLE, a municipal corporation, Respondent,

v.Frederick A. KASEBURG, an individual; Mortgage Electronic Registration Systems, Inc., a Delaware corporation; Bank of America, N.A., a Delaware corporation; and King County, a subdivision of the state of Washington, Appellants.

The City of Seattle, a municipal corporation, Respondent,

v.Keith L. Holmquist, an individual and Personal Representative of the Estate of Kay A. Burdine; Heirs of Kay A. Burdine, deceased and Keith L. Holmquist; J.P. Morgan Chase & Co., successor-in-interest to Washington Mutual Bank, a Delaware corporation; and King County, a subdivision of the state of Washington, Appellants.

No. 76204-4-1

Court of Appeals of Washington, Division 1.

FILED: March 26, 2018

Ordered Published Date April 24, 2018

Kinnon William Williams, Curtis J. Chambers, Inslee, Best, Doezie & Ryder, P.S., 10900 Ne 4th St. Ste. 1500, Bellevue, WA, Kenneth Wendell Masters, Shelby R. Frost Lemmel, Masters Law Group PLLC, 241 Madison Ave. N, Bainbridge Island, WA, for Appellant.

Stephen Charles Willey, Brandi Buehn Balanda, Savitt Bruce & Willey LLP, 1425 4th Ave. Ste. 800, Seattle, WA, Charles Emanuel Gussow, Seattle City Attorney's Office, 701 5th Ave. Ste. 2050, Seattle, WA, for Respondent.

Jenifer C. Merkel, King County Prosecutor's Office - Civil, 516 3rd Ave. Rm. W400, Seattle, WA, Joseph Ward McIntosh, McCarthy & Holthus, LLP, 108 1st Ave. S Ste. 300, Seattle, WA, for Other Parties.

Dwyer, J. ¶1 Frederick Kaseburg and Keith Holmquist appeal from the trial court's order entering findings of public use and necessity, determination of required notice, and setting discovery deadlines. On appeal, Kaseburg and Holmquist contend that the trial court erred by failing to find that the City of Seattle violated their due process rights, the Open Public Meetings Act of 1971¹ (OPMA), and the appearance of fairness doctrine by adopting an ordinance authorizing condemnation of their property. Kaseburg and Holmquist also contend that the trial court erred by failing to find that the City's conduct was arbitrary and capricious. Finding no error, we affirm.

I

¶1 Frederick Kaseburg and Keith Holmquist (collectively the Appellants) own waterfront property located at the end of NE 130th Street in Seattle (the Property). The Property was platted in the early 1920s and was commonly used as a community beach for decades. In 2012, the Appellants filed a quiet title action against King County. The court granted summary judgment in favor of the Appellants and the City appealed, filing a notice of supersedeas without bond. We affirmed. Holmquist v. King County, 182 Wash. App. 200, 328 P.3d 1000 (2014)( Holmquist I ). Following our resolution of that case, the Appellants moved the trial court to award damages resulting from the City's decision to supersede the judgment quieting title. The trial court denied their motion. We reversed. Holmquist v. King County, 192 Wash. App. 551, 368 P.3d 234 (2016)( Holmquist II ).

¶2 Following Holmquist I, community advocates began to contact the Seattle City Council (Council) and express concern over the loss of their community beach. Some community members asked the Council to take action and secure the Property for community use through eminent domain. Community advocates arranged for some council members to visit the Property, tour the beach, and meet with other members of the community who supported the City's acquisition of the beach.

¶3 While Holmquist II was pending in this court, Kaseburg's fiancée, Pepper Schwartz, e-mailed council member Nick Licata to express her disapproval of any potential acquisition of the Property. Frank Video, a legislative aide to council member Licata, replied to Schwartz. Video informed Schwartz that, until the ongoing litigation between the Appellants and the City was concluded, the Council was advised not to communicate further with the Appellants. Video advised Schwartz to direct any further communication to the City's legal department.

¶4 On June 8, 2015, during a council meeting that was open to the public, all of the council members discussed and signed a letter to the mayor expressing their support for the acquisition of the Property.

Over the past several months, the City Council has received numerous inquiries from concerned residents of northeast Seattle about the N.E. 130th Street beach on Lake Washington ....

The N.E. 130th Street beach had offered the only public access to the northern end of Lake Washington in a 5.5 mile span stretching from Matthews Beach in the south to Log Boom Park in the north.

We believe the N.E. 130th Street beach provided an important public benefit for at least 83 years. And we believe the City should use its power of eminent domain to acquire this beach property and restore the public access that previously existed. We also believe that this property should be acquired for public park purposes under the jurisdiction of the City's Department of Parks and Recreation, identified as a public park and maintained as such.

We appreciate that you have begun exploring the option of acquiring the two properties involved though condemnation. We look forward to learning the City's progress in pursuing eminent domain and moving forward with the acquisition of this property for the public's use.

Thereafter, the City's Department of Parks and Recreation prepared Ordinance No. 124864 (the Ordinance). The Ordinance authorized the superintendent of the department to "acquire, through negotiation or condemnation, [the Property] for open space, park, and recreation purposes."

¶5 On September 1, 2015, the City sent the Appellants a "Notice of Seattle City Council Final Action to Adopt an Ordinance Authorizing Condemnation (Eminent Domain)" of the Property (the Notice). The Notice informed the Appellants that the Council would be voting on an ordinance authorizing the acquisition of the Property and that the City would be taking public comment on September 15, 2015. The Notice stated that the Appellants would be provided with an opportunity to comment on the Ordinance in person and that they could also submit comments in writing to the committee chair. The Notice also informed the Appellants when the Council would be taking final action on the Ordinance:

Final Action

Should the Parks, Seattle Center, Libraries and Gender Pay Equality Committee pass the Council Bill on to the City Council, the ordinance authorizing condemnation of your property will be presented for final action (adoption) to the Seattle City Council on Monday September 21 at 2:00 p.m., in the City Council Chambers .... After approval of the ordinance the City of Seattle will be authorized to acquire your property through voluntary negotiation or it may use its powers of eminent domain to condemn your property.

¶6 On September 15, 2015, the committee approved sending the Ordinance to the Council. On September 21, 2015, the Council voted to approve the Ordinance. The mayor signed the legislation eight days later. On August 12, 2016, the City filed its petition for eminent domain in the superior court. Following a hearing, the trial court found that the City had provided the Appellants with proper notice, that the City's acquisition of the Property was for a public use, and that the acquisition was necessary to serve that public use. The trial court also found that the City had not violated the Appellants’ due process rights, the OPMA, or the appearance of fairness doctrine, and that the City's conduct was not arbitrary or capricious.²

II

¶7 The Appellants do not directly dispute the trial court's findings of public use and necessity. Rather, they rely on a series of collateral attacks on the order. Each is addressed in turn.

A

¶8 The Appellants first contend that the trial court erred by finding that the City had not violated their constitutional due process rights. The Appellants assert that the council members "pre-decided" to condemn the Property prior to holding a public hearing on the Ordinance, thus depriving them of notice and a meaningful opportunity to be heard. We disagree.

¶9 Article I, section 3 of the Washington Constitution provides, "No person shall be deprived of life, liberty, or property, without due process of law." A deprivation is a "direct and adverse effect." Wenatchee Reclamation Dist. v. Mustell, 102 Wash.2d 721, 725, 684 P.2d 1275 (1984). "It is not a theoretical harm, nor is it an increased probability of harm." Carlisle v. Columbia Irrig. Dist., 168 Wash.2d 555, 568, 229 P.3d 761 (2010). "Even if a deprivation becomes more likely as a result of government action, due process does not apply if an actual deprivation is contingent on a subsequent action." Carlisle, 168 Wash.2d at 568, 229 P.3d 761.

¶10 "Before the judicial process for condemnation may begin, a city must adopt an ordinance authorizing the condemnation." Pub. Util. Dist. No. 2 of Grant County v. N. Am. Foreign Trade Zone Indus., LLC, 159 Wash.2d 555, 565, 151 P.3d 176 (2007) ( NAFTZI ) (citing RCW 8.12.040 ). Pursuant to RCW 8.12.030, cities are authorized to condemn land and property for, among other uses, public parks. "Once an entity with the power of eminent domain makes its initial determination to authorize a condemnation action of private property, the matter moves to the superior court for the condemnation, which involves the court determining public use and necessity, fixing the amount of just compensation, and transferring title." NAFTZI, 159 Wash.2d at 565, 151 P.3d 176 (citing In re Seattle Popular Monorail Auth., 155 Wash.2d 612, 629, 121 P.3d 1166 (2005) ).

¶11 In a condemnation proceeding, a property owner's due process rights are not implicated until the judicial process commences. NAFTZI, 159 Wash.2d at 570-71, 151 P.3d 176. The adoption of an ordinance authorizing condemnation "does not result in a taking of property and does not deprive a property owner of any rights." NAFTZI, 159 Wash.2d at 570, 151...