City of Seattle v. Sisley

• Decision Date: 12 February 2018
• Docket Number: No. 76114-5-I,76114-5-I
• Court: Washington Court of Appeals
• Parties: THE CITY OF SEATTLE, a municipal corporation, Respondent, v. HUGH K. SISLEY and MARTHA E. SISLEY, husband and wife; HUGH K. SISLEY, individually and on behalf of their marital community; Appellants, JOHN SANDIFER in his capacity as judgment creditor; ROOSEVELT DEVELOPMENT GROUP, LLC, a Washington limited liability company, in its capacity as lessee; ROOSEVELT DEVELOPMENT GROUP, LLC (RDG, LLC), a Washington limited liability company by Jonathan Breiner, managing member, in its capacity as lessee; and KING COUNTY, a subdivision of the state of Washington, Additional Respondents.

THE CITY OF SEATTLE, a municipal corporation, Respondent, v. HUGH K. SISLEY and MARTHA E. SISLEY, husband and wife; HUGH K. SISLEY,individually and on behalf of their marital community; Appellants,JOHN SANDIFER in his capacity as judgmentcreditor; ROOSEVELT DEVELOPMENT GROUP, LLC, a Washington limited liabilitycompany, in its capacity as lessee; ROOSEVELT DEVELOPMENT GROUP, LLC(RDG, LLC), a Washington limited liability company by Jonathan Breiner, managingmember, in its capacity as lessee; and KING COUNTY, a subdivision of the state ofWashington, Additional Respondents.

No. 76114-5-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

February 12, 2018

UNPUBLISHED OPINION

VERELLEN, C.J. — Hugh and Martha Sisley challenge the superior court decree of public use and necessity supporting the condemnation of their property (the property) by the City of Seattle (City). Specifically, they contend the City's selection of the property in the Roosevelt neighborhood for a park was a pretext borne out of animus arising from legal disputes with the City.

The Seattle City Council (City Council) reviewed reports and heard public comment about the proposed acquisition, and the trial court reviewed the evidence and held a hearing. Because there is no evidence or allegation that the City condemned the property for private use or to block another lawful use and the facts and circumstances support a genuine need for public park space in Roosevelt, the Sisleys' allegations of animus do not establish actual or constructive fraud amounting to arbitrary and capricious conduct. The City is not required to establish a lack of other viable alternatives for park space.

The Sisleys argue the court's restrictive discovery rulings frustrated their efforts to document the level and extent of animus and bad faith. But the trial court has broad discretion to narrow discovery requests. Restricting discovery to the contemplated acquisition of the property, including the criteria used for selecting the property and whether the City followed the criteria was within the discretion of the trial court.

Therefore, we affirm.

FACTS

The City considers the Roosevelt neighborhood in northeast Seattle an "underserved community that lacks enough quality open space for public use."¹ The City has identified the need for more park space in Roosevelt dating back to neighborhood plans developed in 1998 and a gap report in 2006.Chip Nevins, the City's Department of Parks and Recreation (DPR) acquisition planner, worked with the Roosevelt community to identify possible park spaces. Roosevelt community members and the neighborhood association met with DPR and discussed adding park space to preserve Roosevelt High School's view corridors. The City upzoned the Roosevelt neighborhood to allow for increased density. Sound Transit is scheduled to open a new light rail station in the neighborhood in 2020.

As part of city-wide planning, DPR prepared a 2011 development plan and a 2011 gap update report reflecting Roosevelt's planned density increase and the lack of sufficient park and open space. In January 2012, the City Council passed Resolution 31347, which declared the City's intent "to promote and enhance the livability" of Roosevelt in the face of new development and to further "livability, social equity, and neighborhood revitalization."²

In 2015, the City allocated funds to address Roosevelt's park needs and the goal of increasing green space and livability in view of increasing density and urbanization.³ Nevins evaluated areas in Roosevelt as potential park sites. He consulted the 1998 Roosevelt neighborhood plan, the 2011 development plan, the 2011 gap report, and Resolution 31347. Nevins used the general criteria that DPR considers when evaluating potential park space such as does a potential park space service an identified gap in park space within a neighborhood, is it on apedestrian route, is it relatively flat with good solar access, etc. Additionally, the City prioritizes underutilized and non-contaminated sites. Nevins and DPR concluded the property satisfied the criteria.

On September 25, 2015, a committee of the City Council met to consider acquiring the property for a public park through Council Bill 118509. The committee heard public comment and discussed e-mails from community members and information it received from the Roosevelt Neighborhood Association regarding the proposed park. The committee also heard from Ben Noble, the City's budget director, and DPR representatives about Roosevelt's historical open space and park needs, the impact of the planned light rail station, the anticipated increase in density, and DPR's selection of the property as a park site. The committee discussed the City's competing policy goals to provide open space and affordable housing given increasing neighborhood density, and how acquiring the property for a park would foster the former goal. The committee unanimously passed the council bill for consideration by the full City Council.

On October 5, 2015, the full City Council heard public comment regarding the proposed acquisition. The Sisleys did not attend the meeting. Community members expressed support. The City Council unanimously adopted the ordinance that the property "be acquired for open space, park, and recreation purposes for the City through negotiations and the use of eminent domain (condemnation) if necessary."⁴

The City's attempts to negotiate with the Sisleys failed, and the City initiated this condemnation action.

The City filed a public use and necessity application. The Sisleys propounded extensive discovery which focused on the City's collection of its judgments against them. The Sisleys requested discovery regarding (1) a voter-approved funding mechanism for Seattle parks unrelated to this condemnation, (2) other Sisley-owned properties, (3) all communications regarding the property, and (4) other conduct by and court judgments against the Sisleys. The Sisleys also noted six depositions, including that of Mayor Edward Murray.

The City provided responses and objections to the Sisleys' written discovery, produced documents, and made Chip Nevins available for deposition.

The court granted the City's motion for a protective order and denied the Sisleys' motion to compel. The court observed:

The scope of discovery in this matter (including depositions) with respect to the Court's assessment of public use and necessity is and shall be limited to the contemplated acquisition of the Sisleys' property for a public park pursuant to Council Bill 118509 and Ordinance 124880.⁵

The court ruled the Sisleys were not entitled to depose Mayor Murray or parks personnel other than Nevins. The Sisleys served additional discovery requests similar to their initial requests. The day after the City provided responses and objections, the Sisleys propounded more discovery, noting four depositions of City employees, officials, and a member of the board of park commissioners. TheSisleys made a subsequent request for information relating to the City's 2000 and 2008 parks levies. The trial court granted the City's motion for a second protective order. The order prohibited "any further discovery, including depositions, regarding or relating to public use and necessity without prior court authorization."⁶

Four days before the scheduled public use and necessity hearing, the Sisleys issued six subpoenas commanding Mayor Murray, an assistant city attorney, and four others to testify at the hearing. The City filed a motion to quash the subpoenas. The court granted the motion in part, allowing the Sisleys to call Nevins as a witness with his testimony limited to

matters within his personal knowledge that strictly relate to the three part test enunciated in Petition of City of Seattle, 96 WA.2d 616, 625 (1981): (1) whether the use is really public, (2) whether the public interest requires it, and (3) whether the property appropriated is necessary for the purpose.⁷

The court held an evidentiary hearing. The City presented an excerpt of the video recording of the City Council's October 5 meeting. The City also confirmed, through Nevins' live testimony, (1) the entire property will be used for a public park, (2) it is a flat and vacant lot adjacent to Roosevelt High School, (3) using the property as a public park will preserve view corridors of that neighborhood landmark, and (4) it will also help satisfy a longstanding and documented need for additional park and open space in the area.

On November 21, 2016, King County Superior Court entered findings and ordered that "the proposed acquisition is for a public use, is in the public interestand that the acquisition is necessary to serve the public use."⁸ The court ordered the matter of just compensation to proceed to trial.

The Sisleys appeal.

ANALYSIS

I. Public Use and Necessity Decree

The Sisleys contend the public use and necessity decree was arbitrary, a result of bad faith, collusion, and fraud.

To enter a decree of public use and necessity, a court must find the contemplated use of the property is really a public use, public interest requires the public use, and the property to be acquired is necessary to facilitate this public use.⁹ "The question of whether the use is really a public use is a judicial determination."¹⁰ But "a legislative declaration will be accorded great weight."¹¹

The necessity determination is a legislative question, and a "declaration of necessity by a legislative body is 'conclusive in the absence of proof of actual fraud or arbitrary and capricious conduct, as would constitute constructive fraud.'"¹² Arbitrary and capricious conduct is "willful and unreasoning action,without consideration and regard for facts or circumstances."¹³ "A condemnation of private property is necessary if it is 'reasonably necessary' under the circumstances."¹⁴ A particular condemnation is necessary as long as it appropriately facilitates a public use

when there is a reasonable

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