Petition of City of Seattle

• Decision Date: 24 October 1985
• Docket Number: No. 50992-1,50992-1
• Parties: In The Matter of the Petition of The CITY OF SEATTLE to acquire by condemnation land and other property in Block 19, A.A. Denny's 3rd Addition to Seattle for a public park, as contemplated by Ordinance 111334. CITY OF SEATTLE, Respondent, v. MALL, INC., Appellant.
• Court: Washington Supreme Court

Page 621

104 Wn.2d 621

707 P.2d 1348

In The Matter of the Petition of The CITY OF SEATTLE to

acquire by condemnation land and other property in Block 19,

A.A. Denny's 3rd Addition to Seattle for a public park, as

contemplated by Ordinance 111334.

CITY OF SEATTLE, Respondent, v. MALL, INC., Appellant.

No. 50992-1.

Supreme Court of Washington,

En Banc.

Oct. 24, 1985.

Ferguson & Burdell, Thomas J. Greenan, Seattle, for appellant.

Douglas N. Jewett, City Atty., Michael Monroe, Asst. City Atty., Seattle, for respondent.

DORE, Justice.

This proceeding concerns a condemnation action by the City of Seattle to acquire land on which to build a city park. The owner of the property, Mall, Inc., appeals the trial court's entry of an order of public use and necessity. We affirm.

FACTS

This case is a continuation of the dispute, previously seen by this court in In re Seattle, 96 Wash.2d 616, 638 P.2d 549 (1981), over the efforts of the City of Seattle to condemn property for the Westlake Project. As originally conceived, this project was to include a public park and other open spaces, a parking garage, a new monorail terminal, an art museum, and approximately 186,000 square feet of retail and cinema space which the City would lease to private parties. This court in In re Seattle held that the City's proposed project was for both public and private purposes and that, accordingly, the City could not use its condemnation power to acquire the needed property.

Following this court's decision, the City devised a new method of achieving its goals. The City had already acquired some of the property north of Pine Street, on which the proposed museum and retail establishments were to be built. The City sold this property to a developer on the condition that the developer follow the City's architectural plans. The developer had previously acquired the remaining necessary parcels north of Pine Street from private parties.

The City initiated the present action to condemn adjacent property south of Pine Street to construct a public park. The proposed park and private project will, when completed, be part of a single architectural and aesthetic plan. The park, however, will be owned by the City, whereas the property and buildings north of Pine Street will remain in private ownership.

Mall, Inc., the owner of the property south of Pine Street, resisted condemnation on the ground that the City's plan was the identical one this court had held to be unconstitutional in In re Seattle. The trial court rejected this contention and entered an order of public use and necessity and approved condemnation of the subject property.

ISSUE

Whether this condemnation of property for public park purposes is such an integral and inseparable part of a private development as to not be a public use within the meaning of article 1, section 16 (amendment 9) of the Washington State Constitution.

DECISION

Washington Constitution article 1, section 16 (amendment 9) provides that private property may be condemned only for public purposes and "the question whether the contemplated use be really public shall be a judicial question, and determined as such, without regard to any legislative assertion that the use is public ..."

For a proposed condemnation to meet the requirement of article 1, section 16 (amendment 9) the court must make three separate but interrelated findings: (1) the use must be public; (2) the public interest must require it; and (3) the property appropriated is necessary for the purpose. In re Seattle, 96 Wash.2d 616, 625, 638 P.2d 549 (1981); Des Moines v. Hemenway, 73 Wash.2d 130, 138, 437 P.2d 171 (1968). The latter two findings are generally subsumed under the definition of "necessity". See North, The Element of Necessity in Washington Eminent Domain Proceedings, 18 Gonz.L.Rev. 665 (1982-83). ¹

The Legislature must ordinarily have granted the condemnor the authority to condemn property for a particular purpose in order for the courts to allow condemnation for that purpose. See In re Seattle, 96 Wash.2d at 629, 638 P.2d 549; State ex rel. King The position of Mall, Inc. is that the City's purpose is both public and private; that is, the City may be establishing a park, but the park is so inseparable from and integral to the continuing private development that it cannot be adjudged a public use. In support of this contention, Mall, Inc. relies on this court's prior holding in our earlier case: "If a private use is combined with a public use in such a way that the two cannot be separated, the right of eminent domain cannot be invoked." In re Seattle, at 627, 638 P.2d 549 (citing State ex rel. Puget Sound Power & Light Co. v. Superior Court, 133 Wash. 308, 233 P. 651 (1925)).

                Cy. v. Superior Court, 33 Wash.2d 76, 204 P.2d 514 (1949).   The Legislature has specifically granted to cities the authority to acquire property by condemnation for public parks.   RCW 8.12.030 provides that cities have the power to "condemn land and property ... for public parks ..."  It has uniformly been held that the use of land for a public park or other recreational facility constitutes the [707 P.2d 1350] type of "public use" which will justify condemnation.   See, e.g., United States ex rel. Tennessee Vly. Auth. v. Welch, 327 U.S. 546, 66 S.Ct. 715, 90 L.Ed. 843 (1946);   Los Angeles v. Superior Court, 51 Cal.2d 423, 333 P.2d 745 (1959);   New Jersey Sports & Exposition Auth. v. Mc Crane, 119 N.J.Super. 457, 292 A.2d 580 (1971);   Martin v. Philadelphia, 420 Pa. 14, 215 A.2d 894 (1966).   This court agreed with these holdings in  In re Seattle, 96 Wash.2d at 633, 638 P.2d 549.   Mall, Inc. seems to concede that cities may, as a general proposition, condemn property to construct parks
                

The constitutional infirmities we found in In re Seattle are absent in this condemnation proceeding. This court's main objection to the original Westlake Project was the use of the power of condemnation for private retail purposes. Not only was this retail function not a public use, no statutory authority existed for such an undertaking. Although the Legislature had authorized the City to condemn "for parks ... for offstreet parking facilities ... [and] monorail purposes", the City had no statutory authority "to condemn property for an urban 'focal point', or an urban In...