Greater Harbor 2000 v. City of Seattle

Decision Date05 June 1997
Docket NumberNo. 63644-3,63644-3
Citation132 Wn.2d 267,937 P.2d 1082
PartiesGREATER HARBOR 2000, A Washington Non-Profit Corporation; Gary Ogden; George A. Wade; Arlene Wade; William Owchar; Ann Owchar; Michael J. Reberg; Gerald Kingen; James Paul Kinch; Theda N. Brentson; and John P. Kennedy, on their own behalf and on behalf of and as class representatives for all other persons similarly situated, Appellants, v. CITY OF SEATTLE, a Washington Municipal Corporation and Port of Seattle, a Washington Municipal Corporation, Respondents.
CourtWashington Supreme Court
Helsell, Fetterman, Martin, Todd & Hokanson, Peter J. Eglick, Jonathan P. Meier, Seattle, and Bob C. Sterbank, Federal Way, for Appellants

Mark Sidran, Seattle City Attorney, Judith B. Barbour, Asst. City Attorney; and Tracy M. Goodwin, Seattle, for Respondents.

SMITH, Justice.

Appellants 1 seek direct review of a decision of the King County Superior Court which on summary judgment denied their petition for declaratory and injunctive relief, mandamus and writs of review to set aside acceptance by the Seattle City Council of a recommendation of the Council's Transportation Committee to grant preliminary approval of a petition by the Port of Seattle to vacate 15.2 acres of public streets and an alley located in the Port's Southwest Harbor Redevelopment Project. We granted review. We affirm.


The questions presented in this case are (1) whether Appellant

Greater Harbor 2000 has standing to challenge a decision by the City of Seattle to grant preliminary approval of a petition by the Port of Seattle to vacate 15.2 acres of public streets; and (2) whether a prior agreement between the Port of Seattle and the City of Seattle can exempt the Port of Seattle from complying with the Seattle Municipal Code requirement for compensation to the City for street vacations.


Respondent Port of Seattle (Port) is a municipal corporation created in 1911 under RCW 53.04 to enhance and manage the flow of water and air passenger traffic, cargo and goods through King County. The Port accomplishes its mission by planning and developing marine terminal and airport facilities for use by private industry and the public. Under RCW 53.08 the Port is given the necessary powers to accomplish its purposes.

The Port is a major developer of the Southwest Harbor Redevelopment Project (Project), a comprehensive remediation and marine redevelopment project of about 190 acres of industrial land in the Duwamish Industrial Area of Seattle. The Project has several purposes: (1) to clean up contaminated industrial land; (2) to expand the existing container ship facility; and (3) to develop an intermodal rail yard within the container ship facility. The Project site originally was under multiple ownership and fragmented by several intervening streets, but the Port has acquired most of the tracts of land and is in process of completing acquisition of the remaining tracts. 2 The site is The Port conducted over 200 meetings with members of the community to obtain their reaction to the design of proposed mitigation measures and public amenities for the Project. The Port sponsored a design workshop, issued Project newsletters and sent mailings to more than 75,000 people. 4

currently devoid[937 P.2d 1085] of any public access areas or amenities. 3

The Port of Seattle on October 7, 1994 submitted to the City of Seattle a petition to vacate several streets located in the Project site to permit the Port to incorporate the property underlying those streets into the Project. The "vacation" of streets is an exclusive method by which the owners of properties abutting a street may petition the legislative authority of a city to extinguish the public's easement for public travel on a street's right-of-way and allow title to the underlying street property to be vested in the abutting property owners. 5

The Port sought vacation of the following streets in Seattle: West Marginal Way Southwest; Southwest Florida Street; 26th Avenue Southwest; 29th Avenue Southwest; and an alley between Southwest Spokane Street and West Marginal Way Southwest. Vacation of those four streets and the alley would result in elimination of 15.2 acres of public rights-of-way.

The Port promised, as a condition for approval of the street vacation petition, to dedicate to the City of Seattle 15.1 acres of land and public improvements valued at about $10 million. 6 The Port has spent $67 million on environmental cleanup and $18.5 million on urban impact mitigation, with a total expenditure for public use Appellant Greater Harbor 2000 (Greater Harbor) is a private interest group consisting of a Washington nonprofit corporation and individual taxpayers in the City of Seattle: Gary Ogden, George A. Wade, Arlene Wade, William Owchar, Ann Owchar, Michael J. Reberg, Gerald Kingen, James Paul Kinch, Theda N. Brentson, and John P. Kennedy. 8 Neither the corporation nor the individuals own tracts within or contiguous to the Project. 9 Appellant Greater Harbor participated in public hearings and submitted written comments to the Seattle Street Use Appeals Board and the Seattle City Council relating to the petition of the Port for the Project street vacations. 10

improvements and environmental benefits being $95.5 million. 7

On September 11, 1995, after extensive discussion and public response during seven public committee meetings following the June 28, 1995 filing of the recommendation of Seattle's Street Use Appeal Board, the Seattle City Council voted 8-0 to accept the recommendation of the Council's Transportation Committee to grant preliminary approval of the petition by the Port for vacation of the streets. 11

The challenged action of the Council is memorialized in Resolution 29295 which reads in its entirety:

A RESOLUTION relating to intergovernmental relations WHEREAS, on December 27, 1989 the Port of Seattle and The City of Seattle entered into an agreement ("Central Waterfront Agreement") relating to the vacation of portions of certain downtown streets, to enable the Port to proceed with its Central Waterfront Project; and

between the City of Seattle and the Port of Seattle, calling for a like resolution from the Port of Seattle Commission signifying its willingness to enter into negotiations to amend or modify the Port-City agreement, entered into in connection with the Port's Central Waterfront Project and authorized by Ordinance 114876, and the Public Access Plan for the Duwamish Waterway, adopted by the City by Resolution 27127 and by the Port by Resolution 2949.

WHEREAS, the Central Waterfront Agreement contains a term by which the City agreed that any future street vacations granted to the Port would be at no cost to the Port (except administrative costs) and would not include any payment based on the fair market value of the area vacated; and

WHEREAS, the City is in the process of completing the vacation of approximately 14.52 acres of street area, the fair market value of which is conservatively estimated to be $6.5 million, to enable the Port to proceed with the development of its Southwest Harbor Project, which project includes substantial mitigation of its impacts together with public use improvements, but for which no street vacation fees except administrative costs have been required; and

WHEREAS, the City Council believes that the Central Waterfront Agreement, which has no term prescribing its length or duration, has been in effect for a reasonable time, that the purposes of the agreement have been fulfilled, and that the Port has received the benefit of its bargain; and

WHEREAS, in 1985 the Port and the City completed a joint planning effort which culminated in the adoption of the Comprehensive Public Access Plan for the Duwamish Waterway ("Duwamish Plan"), and;

WHEREAS, circumstances have changed over the ten years since the Duwamish Plan's adoption, with some of the development proposed in the Plan having been accomplished, and some now appearing to be rendered obsolete by a more rapid shift to containerization than was expected; and WHEREAS, the Port is contemplating substantial redevelopment of Harbor Island in a manner that appears to be substantially different from that envisioned in the 1985 Plan, and which will require the vacation of more street area than was contemplated by the City and the Port, either in the Duwamish Plan or the Central Waterfront Agreement; and

WHEREAS, the Harbor Island redevelopment process would benefit from a comprehensive, joint planning process similar to that engaged in for the Duwamish Plan; NOW, THEREFORE,


The City Council calls on the Port of Seattle Commission to adopt a resolution directing Port staff to meet and confer with City staff for the purpose of identifying amendments and modifications to the Central Waterfront Agreement and the Duwamish Plan, in order to plan for orderly and rational development of Harbor Island and the vacation of any streets thereon.

The City Council further calls on the Mayor of Seattle to direct City staff to meet and confer with Port staff for the same purpose.

ADOPTED by the City Council of the City of Seattle this 11 day of September, 1995, and signed by me in open session in authentication of its adoption this 11 day of September, 1995.

s/Jim Street___________________

President of the City Council

Filed by me this 11 day of September, 1995.

s/Judith E. Pippin _____________

City Clerk

On September 25, 1995 Appellant Greater Harbor filed in the King County Superior Court this class action petition for declaratory and injunctive relief, mandamus and In its complaint, Appellant Greater Harbor contended the Seattle City Council did not comply with applicable Seattle Municipal Code provisions which required payment of compensation when the Council unanimously approved the recommendation to...

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