Htk Management v. Seattle Monorail Auth.

Citation155 Wn.2d 612,121 P.3d 1166
Decision Date20 October 2005
Docket NumberNo. 76462-0.,76462-0.
CourtWashington Supreme Court
PartiesIn the Matter of the Petition of the Seattle Popular Monorail Authority, a City Transportation Authority, to Acquire by Condemnation Certain Real Property for Public use as Authorized by Resolution No. 04-16. HTK MANAGEMENT, L.L.C., Appellant, v. SEATTLE POPULAR MONORAIL AUTHORITY, a/k/a Seattle Monorail Project, Respondent.

Page 1166

121 P.3d 1166
155 Wn.2d 612
In the Matter of the Petition of the Seattle Popular Monorail Authority, a City Transportation Authority, to Acquire by Condemnation Certain Real Property for Public use as Authorized by Resolution No. 04-16.
HTK MANAGEMENT, L.L.C., Appellant,
SEATTLE POPULAR MONORAIL AUTHORITY, a/k/a Seattle Monorail Project, Respondent.
No. 76462-0.
Supreme Court of Washington, En Banc.
Argued March 17, 2005.
Decided October 20, 2005.

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George Kresovich, Timothy D. Benedict, Hillis Clark Martin & Peterson, Seattle, for Appellant.

P. Stephen DiJulio, Roger Duane Mellem, Foster Pepper & Shefelman PLLC, Seattle, for Respondent.

William R. Maurer, Charity Osborn, Institute for Justice/WA State Chapter, Seattle, Jeanette Motee Petersen, Bellevue, for Amicus Curiae (Institute for Justice Washington Chapter).

Daryl A. Deutsch, Bellevue, for Amicus Curiae (Paul D. and Josephine M. Fiorito).

Paul Arley Harrel, Alan Lea Wallace, Williams Kastner & Gibbs PLLC, Seattle, for Other Party (Ampco System Parking).

John Robert Zeldenrust, King County Prosecutor's Office/Appellate Unit, Seattle, for Other Party (King County of Finance).

Larry John Smith, Graham & Dunn PC, Seattle, for Other Party (Rokan Partners).


¶ 1 HTK Management, L.L.C. (HTK), a property owner in downtown Seattle, challenges a trial court order adjudicating public use and necessity that authorizes Seattle Popular Monorail Authority, a/k/a Seattle Monorail Project (SMP), a city transportation authority, to condemn its property to build a monorail station. In this case, both parties agree that the use of the property here for construction of public transportation is a fundamental "public use."1 However, HTK alleges that SMP lacks statutory authority to condemn property in the first place and, alternatively, that the adjudication of public use and necessity was improper because, HTK contends, while SMP permissibly condemned a fee interest in the property comprising the monorail footprint, it should have been limited to a multiyear lease on the remainder.

¶ 2 We hold that SMP has statutory authority to condemn property and affirm the trial court's order adjudicating public use and necessity.


¶ 3 Traffic is a significant problem in the state of Washington. In 2002, the Washington Alliance for a Competitive Economy reported that "[t]ransportation remains the dominant infrastructure concern in the state, particularly in the Central Puget Sound region" and provided the following data: (1) congestion in the Seattle-Everett Corridor ranks second only to Los Angeles, (2) Washington ranks 32nd on per capita state disbursements for highways and local roads, (3) Washington's 23-cent gas tax, unchanged since 1991, ranks 14th in the nation, and (4) Seattle ranked just 64th on Expansion Management magazine's September 2001 evaluation of the "100 Most Logistics Friendly Cities."2

¶ 4 The 2002 report concludes that "[w]ith most business in Washington eventually involving the movement of goods and people through the congested metropolitan Puget Sound corridor, gridlock puts the economic competitiveness of all communities at risk."3

¶ 5 Since 1997, Seattle residents have voted four times in favor of building an expanded monorail public transportation system within the city of Seattle.4 In November 1997, voters in the city of Seattle passed Initiative 41, creating a public development

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authority, the Elevated Transportation Company, to build, maintain, and operate an elevated, electrically powered mass transit system consisting of specified stations and terminals serving the four quadrants of Seattle and running through downtown. The system would be generally "X" shaped and would lie entirely within Seattle.5

¶ 6 In July 2000, the Seattle City Council passed Ordinance 120049, amending Initiative 41. Among other things, the ordinance dissolved the Elevated Transportation Company and deleted the requirement that the city council make funds available for the system if necessary by either issuing bonds or raising the city's business and occupation tax.6

¶ 7 In November 2000, voters in Seattle voted the second time for the monorail, passing Seattle Proposition No. 2 (Initiative 53), which reestablished the Elevated Transportation Company. The Elevated Transportation Company would have up to two years to complete a plan for a monorail system in Seattle. Once the monorail plan was completed, Initiative 53 provided that the Seattle City Council would be required to place the monorail plan before Seattle voters at the next election. Initiative 53 also provided for the repeal of any ordinance that had repealed or amended prior Initiative 41 and that was inconsistent with Initiative 53, and for reinstatement of that part of Initiative 41 that had been repealed or amended.7

¶ 8 In 2002, the Washington State Legislature enacted an enabling statute which authorized voters from cities with a population over 300,000 to create a "city transportation authority" to build a public monorail within that city. Ch. 35.95A RCW. RCW 35.95A.050 provides that a city transportation authority will have a number of powers including the power to "acquire by purchase, condemnation, gift, or grant and to lease, construct, add to, improve, replace, repair, maintain, operate, and regulate the use of public monorail transportation facilities." RCW 35.95A.050(1).

¶ 9 A city transportation authority may fix rates, tolls, fares, and charges for use of facilities and may establish various routes and classes of service. RCW 35.95A.050(2). Additionally, a city transportation authority may "[n]otwithstanding the provision of any law to the contrary, and in addition to any other authority provided by law," contract with one or more vendors for the design, construction, operation, or maintenance or other service related to the development of a monorail public transportation system. RCW 35.95A.050(3)(a).

¶ 10 Finally, among other powers, a city transportation authority will have "all other powers necessary and appropriate to carry out its responsibilities, including without limitation the power to sue and be sued, to own, construct, purchase, lease, add to, and maintain any real and personal property or property rights necessary for the conduct of the affairs of the authority, to enter into contracts, and to employ the persons as the authority deems appropriate. An authority may also sell, lease, convey, or otherwise dispose of any real or personal property no longer necessary for the conduct of the affairs of the authority." RCW 35.95A.050(8).

¶ 11 Seattle residents voted for the third time in favor of the monorail in November 2002, passing Citizen Petition No. 1: Proposed Seattle Monorail Authority. Citizen Petition No. 1 created a Seattle city transportation authority, now named Seattle Popular Monorail Authority, a/k/a Seattle Monorail Project, (SMP), respondent in this case. Citizen Petition No. 1 implemented the initial phase of a five-line city monorail system by authorizing the construction and operation of a 14-mile monorail line, the "Green Line." The Green Line will connect Ballard, Key Arena, Seattle Center, Belltown, downtown

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Seattle, Pike Place Market, Benaroya Hall, the ferry terminal, Pioneer Square, the Chinatown-International District, the King Street train station, Safeco Field, the Qwest Field, and West Seattle. The Green Line will have 19 monorail stations and is intended to connect with buses, ferries, light rail, and trains. Construction is scheduled to begin in 2005.

¶ 12 In November 2004, Seattle residents voted again, for the fourth time, for the monorail, defeating Initiative 83. Initiative 83, if enacted into law, would have forbidden the city of Seattle from allowing the use of its city rights-of-way for any new monorail transit facilities, such as the Green Line.8

¶ 13 Seattle residents voted overwhelmingly in favor of the monorail — 63.52 percent voted "no" for Initiative 83.9

¶ 14 On April 7, 2004, SMP passed Resolution No. 04-16 to acquire by condemnation certain property for the Second and Yesler station, the Pioneer Square station, in downtown Seattle. The property is currently a parking garage, commonly referred to as "the sinking ship garage" (the property). The property is owned in fee by the appellant, HTK. The property is also subject to a long-term ground lease. The tenant's ground lease ends in 2010, with the tenant possessing a 10-year option to extend the lease through 2020. The Second and Yesler station will be constructed on a triangle of property bounded by Second Avenue, Yesler Way, and James Street in downtown Seattle. The Second and Yesler station will provide an intermodal transportation function with connections to the ferry system, the waterfront street car, buses, and light rail.

¶ 15 SMP has not yet approved a final design for the Second and Yesler station. Some preliminary designs show the station footprint covering the entire property, other more recent designs show a smaller footprint. The final design will be determined by the "Design, Build, Operate, and Maintain" contractor, with the approval of SMP's board and the city of Seattle. The parties agree that regardless of the ultimate size of the Second and Yesler station, SMP needs the entire property for construction of the staging and development of the Green Line alignment in the vicinity of the Second and Yesler station. After construction of the station, SMP currently has no planned use for any portion of the property that may remain uncovered by the final station design. SMP states that it would be premature to make definitive plans for the property that may possibly fall outside of the footprint. For example, a portion of the property may be used for loading and unloading passengers from para-transit vehicles, taxis, and tour buses. After the monorail is completed,...

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