Port of Edmonds v. Northwest Fur Breeders Co-op., Inc.
| Decision Date | 07 October 1991 |
| Docket Number | No. 26702-7-I,No. 1,1,26702-7-I |
| Citation | 63 Wn.App. 159,816 P.2d 1268 |
| Parties | PORT of EDMONDS, a Washington Port District, Respondent, v. NORTHWEST FUR BREEDERS COOPERATIVE, INC., a Washington corporation, Appellant, Chicago Title Insurance Company, a foreign corporation; National Consumer Cooperative Bank, a foreign corporation; and Snohomish County Public Utility District, a Washington Public Utility District, Defendants. |
| Court | Washington Court of Appeals |
Richard W. Pierson, John R. Marts, Seattle, for appellant.
Peter Maier, Seattle, for respondent.
Appellant Northwest Fur Breeders Cooperative, Inc. (the Coop) appeals the trial court's determination of public use and necessity in this condemnation action taken by respondent Port of Edmonds (the Port). Because we find that the Port commissioners' vote to condemn the Coop's land was taken in violation of statutory law, we reverse the judgment below.
The Coop is an animal food products processor and distributor whose principal plant of operation is located on a site upland from the Edmonds waterfront. The 3/4 acre site is completely surrounded by land owned by the Port. The Coop used to own more land in the area but the Port acquired 3 1/2 acres of tidelands from the Coop in the early 1950's. There is evidence in the record that odor has been a problem around the Coop and that there have been complaints about odor directed to the Port. Before the condemnation action at issue in this case was initiated, the Coop purchased land in another area of Snohomish County and applied for permits to move its operation there. The Coop then proceeded to formulate plans to redevelop the Edmonds parcel for "living units and retail shops".
The Port operates a public boat harbor for both permanent and transient moorage, a public boat launcher, a fuel dock, a boat storage operation and a business park. The small boat launcher, which is operated by the Port adjacent to the Coop facility, launched roughly 10,000 boats in the 1987-88 season, and approximately 13,000 in 1988-89.
The Port had identified the Coop parcel as possibly needing to be acquired as early as 1979 and again in 1987. The present condemnation action began on December 11, 1989, when Port manager William Stevens wrote a memorandum to the Port commissioners regarding possible Port improvements which were to be discussed and addressed at a Harbor Improvement Plan meeting that evening. This memorandum recommended the acquisition of the Coop property because of the need for the land for parking by users of the small boat launch operation and because the Coop was considered an inappropriate land use in the area. This memorandum also served as an agenda for the Port commissioners' December 11 meeting.
Prior to this meeting, the Port published the following notice in The Herald 1:
PORT OF EDMONDS
The Port Commission of the Port of Edmonds will conduct a hearing pursuant to RCW 53.20.010 and 53.20.020 to determine if a supplemental Comprehensive Scheme of Harbor Improvements should be adopted to supplement and be in addition to the Comprehensive Scheme of Harbor Improvements as supplemented. The hearing will be held on Monday, December 11, 1989, at 7:30 p.m. at the Port Commission meeting room, Port Administration Building, 336 Admiral, Edmonds, Washington.
DATED this 13th day of November, 1989.
PORT COMMISSION OF THE PORT OF EDMONDS
By: WILLIAM B. STEVENS
Port Manager
None of the information outlined in the Port manager's December 11 memorandum was contained in the notice. Nor was the Coop contacted about the meeting by anyone associated with the Port.
At the meeting on December 11, 1989, the Port commissioners considered and approved the Port manager's December 11 memorandum. On January 8, 1990, the commissioners formally adopted Resolution 1002 which purported to supplement the comprehensive scheme of harbor improvements to acquire the Coop parcel, by condemnation if necessary. On the same date, the commissioners also adopted resolution 1003 authorizing an offer to purchase the property for $615,000 and instructing the Port's attorneys to commence condemnation in the event a purchase could not be negotiated.
On March 30, 1990, the Port filed a petition for exercise of eminent domain. The hearing was held on July 18-19 and August 2, 1990. At the hearing, one of the Port commissioners testified that there had been extensive problems with parking in the area of the small boat launch for several years and that the problems were anticipated to worsen.
Although the Port apparently had enough parking in adequate total numbers at the time of the condemnation action testimony indicated that there was a particular problem with parking for launchers of small boats, as such parking was not near the launcher. Though various additional parking areas were acquired just prior to the condemnation of the Coop's land, there is also testimony in the record that this property only provided transient parking relief and did not meet the long term needs of the Port with respect to boat-trailer parking. There was also testimony at the hearing concerning traffic congestion caused by the Coop's operation, but a traffic study was not performed.
The Coop contended that the parking was not really necessary and also challenged the condemnation action at the hearing by claiming that the legislative decision to condemn the land was made in bad faith and without due process of law. Additionally, the Coop claimed that the action was in violation of statutory law regarding notice, but the Coop never cited a specific statute to the trial court, even though challenged to do so by the Port's attorney.
The trial court entered an order of public use and necessity on August 8, 1990. In pertinent part the order states that the property
is for the construction of additional parking facilities, elimination of traffic congestion, [and] provision of more efficient use of the Port's small boat harbor and public boat launcher ...
This appeal followed.
Appellant contends that the judgment of the trial court must be overturned because the Port's authorization of the condemnation was taken at a hearing held without the proper statutory notice procedures applicable to port districts in the exercise of eminent domain. Specifically, the Coop contends that RCW 53.08.010, which authorizes eminent domain by port districts, declares that such actions shall be exercised in the same manner as cities of the first class, that cities of the first class are required by RCW 35.22.288 to publish meaningful notices of any upcoming meetings which consider eminent domain actions and that the Port failed to publish a meaningful agenda of the meeting with its notice, thereby invalidating its decision to condemn the Coop property taken at that meeting. Respondent counters that the Coop cannot raise compliance with RCW 35.22.288 at this stage because that statute was not raised below, that even if it were to be considered, it is inapplicable and that the Port's actions were in compliance with the statute in any event.
As a general rule, an appellate court will not consider an argument raised for the first time on appeal. Smith v. Shannon, 100 Wash.2d 26, 37, 666 P.2d 351 (1983); Olson v. Siverling, 52 Wash.App. 221, 230, 758 P.2d 991 (1988), review denied, 111 Wash.2d 1033 (1989). This is to encourage the presentation of all arguments before the trial court, which can consider all issues together and thereby conserve judicial resources. The Port correctly points out that in the present case, the trial judge had no opportunity to consider whether the Port complied with RCW 35.22.288 because this statute was not specifically raised below. Had it been considered and found to be applicable, the Port would have had an opportunity to correct its notice in a more timely manner.
If the only interest at stake in this case were that of the Coop, we would be inclined not to consider appellant's argument for the reason cited above. However, other parties besides the Coop have an interest in whether the need for trailer parking spaces outweighs the need for the retail shops and condominiums that the Coop desired to build on the land. Because the Legislature has expressed its desire that the public always have a right to participate in the legislative process (see, e.g., RCW 42.30.010) and because of the broad public interest in what becomes of the land at issue, this court will exercise its discretion to reach the issue of statutory notice. See Falk v. Keene Corp., 113 Wash.2d 645, 659, 782 P.2d 974 (1989) (); see also Bennett v. Hardy, 113 Wash.2d 912, 918, 784 P.2d 1258 (1990) (citing Obert v. Environmental Research & Dev. Corp., 112 Wash.2d 323, 333, 771 P.2d 340 (1989)). In doing so, we emphasize that the trial judge is not to be faulted for failing to consider the applicability of a statute which was not even cited by appellant, and the applicability of which is an issue of first impression. 2
Respondent Port argues that the statute is not applicable, or, in the alternative, that the Port's notice was not violative of its requirements. RCW 35.22.288 states in pertinent part that:
every city [of the first class] shall establish a procedure for notifying the public of upcoming hearings and the preliminary agenda for the forthcoming council meeting. Such procedure may include, but not be limited to, written notification to the city's official newspaper, publication of a notice in the official newspaper, posting of upcoming council meeting agendas, or such other processes as the city determines will satisfy the intent of this requirement.
(Italics ours.) The Coop argues that this statute is applicable to...
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