Hutchinson v. Port of Benton, 36645

• Decision Date: 27 June 1963
• Docket Number: No. 36645,36645
• Citation: 383 P.2d 500,62 Wn.2d 451
• Court: Washington Supreme Court
• Parties: J. L. HUTCHINSON, Janice, C. Lewis and C. E. Warren, Appellants, v. PORT OF BENTON, a municipal corporation, Roland A. Lindburg, M. Harold Kinney, John R. Hills, Members and Port Commissioners, and Cecil R. Allbee, Port Manager, Respondents.

Page 451

62 Wn.2d 451

383 P.2d 500

J. L. HUTCHINSON, Janice, C. Lewis and C. E. Warren, Appellants, v. PORT OF BENTON, a municipal corporation, Roland A. Lindburg M. Harold Kinney, John R. Hills, Members and Port Commissioners, and Cecil R. Allbee, Port Manager, Respondents.

No. 36645.

Supreme Court of Washington, Department 1.

June 27, 1963.

George Edward Heidlebaugh, Kennewick, for appellants.

Butler & Yencopal, Richland, for respondents.

R. W. Gibson, Quincy, R. W. Graham, Seattle, amici curiae.

HALE, Judge.

This action by taxpayers is brought to enjoin and declare illegal the proposed purchase from the United States of a tract of land by the Port of Benton.

The tract, located about five miles north of Richland, Washington, runs along and fronts upon the Columbia River for a distance of approximately 6,000 feet, and its inland depth is about 2,100 feet. Roughly rectangular in shape, it comprises an area of 290 acres. The inland, or westerly, edge is at an elevation of 400 feet above sea level and slopes in an easterly direction to the river's edge for its 2,100 foot width to an elevation of 340 feet. The last 200 feet or so toward the river are the steepest.

This tract, along with hundreds of square miles in the area, came into possession of the United States by eminent domain proceedings in 1941 and 1942 for war purposes in the construction of the Hanford works. The War Department was the first agency to acquire this land for the United States, doing so to construct an atomic energy project. Thereafter, it was transferred to the United States Atomic Energy Commission which leased the particular tract in question to the city of Richland. The latter zoned it for industrial and manufacturing uses. Later, the Atomic Energy Commission transferred this tract to the Corps of Engineers, United States Army, for administration thereof on behalf of the United States. The 290-acre tract is still owned by the United States.

By letter of October 23, 1961, the Corps of Engineers, acting under the authority of Public Law 86-645, Act of July 14, 1960; 33 U.S.C. § 578, offered this particular tract for sale to the Port of Benton at the declared fair market value of $100,000. The Port of Benton, in response to the Corps of Engineers' proposal, accepted the offer in a formal letter signed by its three commissioners, which letter, as set forth in the court's findings, reads in part as follows:

"Upon purchase of the above acreage it is the intent of the Port of Benton that development shall proceed as follows:

"1. The area adjacent to the west shoreline is to become a Public Port, with needed facilities to be constructed.

"2. The western portion of this parcel will become an Industrial Park. This Park will provide an area for Richland's much needed industrial development."

The foregoing letter of acceptance was in effect when, in contemplation of the proposed purchase, the port commissioners regularly adopted an addition to or amendment of its comprehensive plan for harbor improvements by promulgating a resolution on February 14, 1962, the pertinent parts of which state:

"* * * Section 1. * * * the Port Commission of the Port of Benton, Washington, does hereby adopt the following addition to its original comprehensive plan of harbor improvement as heretofore added to:

* * *

* * *

"B. 1. The port district shall dredge the Columbia River to a depth of at least 12 feet in as close as possible to the shore of the above-described tract of land for a distance of approximately 3,000 feet from the north boundary of said tract of land.

"2. The port district shall construct two 300-foot sheet steel pile wall docks adjacent to said dredged area, and shall level and fill the areas behind such docks with material readily available behind said dock area.

"3. The port district shall construct a road to allow easy access to this dock area.

"C. The port district shall construct two warehouse buildings of approximately 60' x 120' on said tract.

"D. The port district shall construct roads, railroad spurs, utilities and other necessary facilities where necessary in this tract in order to provide easy and proper access to the improvements to be constructed thereon, and shall grub, clear and fill the areas in said tract as needed for all of such improvements."

The trial court found that the Commissioners of the Port of Benton intend to develop the tract by construction of port facilities thereon and to lease portions of it for industrial and commercial purposes to others under RCW 53.08.020 and RCW 53.08.040. The trial court expressly found that the acquisition was not pursuant to or intended to be under, the Port Industrial Development Act, ¹ Laws of 1955 chapter 73, p. 429; RCW 53.25, and entered judgment of dismissal. The taxpayers appeal.

Appellants challenge the proposed purchase on two distinct grounds: (1) That the purchase is for the purpose of devoting public property unconstitutionally to an industrial development or industrial park; and (2) that the comprehensive plan was legally insufficient to authorize the acquisition.

Appellants list 23 assignments of error in their brief, but argue only two. We disregard the remaining assignments of error under the well-established rule that assignments of error not argued in the brief are waived and will not be considered by this court. Seattle v. Love, 161 Wash.Dec. 113, 377 P.2d 255; Verstraelen v. Kellog, 160 Wash.Dec. 117, 372 P.2d 543; Wickre v. Allen, 58 Wash.2d 770, 364 P.2d 911; Kent v. Whitaker, 58 Wash.2d 569, 364 P.2d 556; Fulton v. Fulton, 57 Wash.2d 331, 357 P.2d 169.

The first of the two assignments of error argued by appellants is that the port intends to create an industrial park unconstitutionally and in excess of its powers. This assignment may be disposed of speedily. Other than the statement contained in the letter of December 4, 1961, from the port to the district engineer that the western portion of the parcel was to become an industrial park, we find no evidence that respondents intend to invoke Laws of 1955, chapter 73, p. 429, Port Industrial Development Act (RCW 53.25), and the trial court so found. Neither the validity nor the effect of that statute is before us; nor does the court's finding that the port intends to lease portions of the tract for industrial and commercial purposes under RCW 53.08.020 and RCW 53.08.040 raise a justiciable question now. Obviously, the intent to lease parts of the tract is consonant with powers conferred on port districts by the first creative enactment in 1911, which reads:

'All port districts * * * shall be and are hereby authorized * * * to execute leases of all lands, wharves, docks and property owned and controlled by said port district upon such terms as the port commission may deem proper.' Laws of 1911, chapter 92, § 4, p. 418, 419.

In the first case construing the entire enactment, this court passed upon the power of the then infant port districts to lease out land in the following language:

'* * * Perhaps, if the sole purpose of acquiring the property was to lease it to an individual or corporation for private use, its acquisition and lease would be in violation of the constitutional provision cited. But when the purpose is to establish public wharves or docks, and the lease is for a limited time, * * * it cannot be said to be the acquisition of the property for a private purpose nor the giving of money or property, nor the loaning of the credit of the municipality, to an individual or corporation * * *.' Paine v. Port of Seattle, 70 Wash. 294, 322, 127 P. 580, 582.

Years later in more explicit language, the legislature granted additional powers to port districts by ...