Sound Transit v. Miller

• Decision Date: 26 May 2005
• Docket Number: No. 76284-8.,76284-8.
• Citation: 156 Wn.2d 403,128 P.3d 588
• Court: Washington Supreme Court
• Parties: CENTRAL PUGET SOUND REGIONAL TRANSIT AUTHORITY, a regional transit authority, d/b/a Sound Transit, Respondent, v. Kenneth R. MILLER and Barbara I. Miller, husband and wife, and Miller Building Enterprises, Inc., a Washington corporation, Appellants, Northwest Community Bank, Designated Trustee Services, Inc., Bertram P. Weinman and Myra Weinman, Trustees of the Weinman Family Trust, Alan J. Wrye and Pansy D. Wrye, Vivian Bartlett, and All Unknown Owners and All Unknown Tenants, Defendants, Pierce County, a municipal corporation, Respondent.

128 P.3d 588 156 Wn.2d 403 CENTRAL PUGET SOUND REGIONAL TRANSIT AUTHORITY, a regional transit authority, d/b/a Sound Transit, Respondent,
v.
Kenneth R. MILLER and Barbara I. Miller, husband and wife, and Miller Building Enterprises, Inc., a Washington corporation, Appellants,
Northwest Community Bank, Designated Trustee Services, Inc., Bertram P. Weinman and Myra Weinman, Trustees of the Weinman Family Trust, Alan J. Wrye and Pansy D. Wrye, Vivian Bartlett, and All Unknown Owners and All Unknown Tenants, Defendants,
Pierce County, a municipal corporation, Respondent. No. 76284-8. Supreme Court of Washington, En Banc. Argued May 26, 2005. Decided February 16, 2006.

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Charles A. Klinge, Diana M. Kirchheim, Groen Stephens & Klinge LLP, Bellevue, for Petitioner/Appellant.

Larry John Smith, Janis G White, Graham & Dunn PC, Seattle, David H. Prather, Pierce County Deputy Prosecutor, Civil Division, Tacoma, for Appellee/Respondent.

Timothy Ford, Olympia, for Amicus Curiae, Building Industry Assoc. of Washington.

FAIRHURST, J.

¶ 1 Kenneth R. Miller and Barbara I. Miller and Miller Building Enterprises, Inc., a construction company (hereinafter collectively Miller), own a large parcel of land in Tacoma near a railroad line. Central Puget Sound Regional Transit Authority, commonly known as Sound Transit, seeks to condemn this property to build a park-and-ride for a commuter rail transit station. To do so, Sound Transit must establish, among other things, that the condemnation is necessary. Whether condemnation is necessary is a legislative judgment. Courts will overturn that legislative judgment only when the challenger can prove that it is the product of actual fraud, or is arbitrary and capricious enough to constitute constructive fraud, or when the government fails to abide by the clear dictates of the law.

¶ 2 After extensive research and solicitation of community opinion, several potential sites were identified. Sound Transit held a public hearing to determine which proposed site to use for the rail station. By law, potential condemnees are not entitled to actual individualized notice. Instead, Washington law requires that agencies develop procedures to give reasonable notice of these meetings to the public which may include informing the local media. Sound Transit has elected to implement this statutory discretion by posting meeting times and agendas on its website. It does not directly notify the media.

¶ 3 The primary issue for review is whether Sound Transit's method of notifying the public of its meetings is adequate. Alternately, Miller challenges the substantive decision that public necessity for the condemnation exists. We hold that Sound Transit complied with statutory requirements in notifying the public of its meetings and that Sound Transit's determination of necessity is not the product of actual or constructive fraud. We affirm the trial court.

I. FACTS

¶ 4 In 1992, in an effort to respond to the increasing traffic congestion in the Puget Sound region, the Washington Legislature authorized the state's largest counties to seek voter approval to create regional transportation entities to coordinate efforts to create and maintain a healthy transportation infrastructure. RCW 81.112.010. These transit authorities were given all powers necessary to implement and support a high capacity transportation system, including the power to condemn private property. RCW 81.112.070, .080(2). Four years later, voters in the Puget Sound region approved the creation and funding of Sound Transit. Among its other projects, Sound Transit is attempting to make light rail an alternative to commuters along the I-5 corridor.

¶ 5 Currently, light rail runs from downtown Tacoma to downtown Seattle. This case involves Sound Transit's efforts to extend the line south. In 1998, Sound Transit began to investigate possible sites for a new transit station in South Tacoma or Lakewood. In 1999, workshops and public meetings were held in Tacoma to determine the best way to proceed and the best potential sites for transit stations. By 2001, three different possible sites had been identified. One of the sites near South Tacoma Way and south 60th in Tacoma involved a large piece of property owned by Miller. The Miller property would be able to provide about 85 percent of the space needed for a park and ride. While the site is apparently contaminated with industrial waste, it appears that it can safely be used as a parking lot.

¶ 6 In the first three years of the site investigation, Miller cooperated with Sound Transit in the possible condemnation action. In 2001, Miller executed a release that allowed Sound Transit to enter the property to survey and take soil samples. Meanwhile, in June 2003, Sound Transit scheduled a public

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Board of Directors meeting to discuss which of three sites in the area was best suited for the transit center. Notice of this meeting and its agenda were published on the Sound Transit web site but it appears that no other steps were taken to inform the community of the upcoming meeting. A Sound Transit employee testified that it was considered "unseemly" to notify property owners individually that a state agency is considering condemning their property before a decision had been made. 1 Verbatim Report of Proceedings (VRP) (Oct. 25, 2004) at 31. Sound Transit's internal rules recite that:

Whenever feasible, the Board Administrator shall furnish the Agenda for meetings of the Board and Committees to one or more local newspapers of general circulation in advance of such meetings.

Ex. 14, at 12. According to Marcia Walker, the administrator to the Board of Sound Transit, "[t]he way that [Sound Transit] furnish[es] the agenda and materials to the public and media is by posting on the website." 1 VRP at 101. Walker testified that this method had been used to provide notice ever since Sound Transit had a web site. The trial court specifically found that the method satisfied both statutory requirements and Sound Transit's internal rules.

¶ 7 At the public Board of Directors' meeting, the plan that included the Miller property (along with others) was selected. The record indicates this was motivated in part by the fact that no overpass would have to be built over the railroad tracks and all parking could be consolidated in one lot, which would be simpler to control and secure. Sound Transit then instituted condemnation proceedings against all of the selected properties. On July 10, 2003, Miller was served with a formal notice of intent to acquire property. In August 2004, Miller was served with the petition in eminent domain. The public use and necessity hearing was held on October 25 and November 1, 2005, in Pierce County Superior Court.

¶ 8 At the public use and necessity hearing, Miller resisted the condemnation and challenged the Board of Directors' determination that the condemnation of their property was necessary. Miller argued that the agency had improperly rejected other sites on the erroneous belief that they were environmentally contaminated and had overlooked the value of a building on their property which has the apparent distinction of being the first house built along a railroad right-of-way in Tacoma. The trial court concluded that Sound Transit had given proper notice, had established public use and necessity, and that the condemnation action could proceed to the just compensation stage. The trial court explicitly rejected Miller's claim that the action was arbitrary and capricious or the product of fraud. Miller sought direct review, which we granted.¹

II. ISSUES

A. Did Sound Transit adequately notify the community of the meeting agenda where the necessity for condemning the property would be discussed?

B. Did Miller establish that Sound Transit committed actual or constructive fraud in determining that there was public necessity for condemning the Miller property?

III. ANALYSIS

¶ 9 We first briefly review the underlying law. The power of eminent domain is an inherent attribute of sovereignty. Boom Co. v. Patterson, 98 U.S. (8 Otto) 403, 406, 25 L.Ed. 206 (1878); see also State v. King County, 74 Wash.2d 673, 675, 446 P.2d 193 (1968) (citing Miller v. City of Tacoma, 61 Wash.2d 374, 378 P.2d 464 (1963)). That power is limited by the constitution and must be exercised under lawful procedures. Miller, 61 Wash.2d at 382-83, 378 P.2d 464; King County, 74 Wash.2d at 675, 446 P.2d 193. Once a state agency with the power of eminent domain has made the initial determination that condemnation is necessary, the matter moves into court for a three-stage proceeding. First, there must be a decree of public use and necessity. Second, just compensation

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must be determined. Finally, just compensation must be paid and title transferred. See generally 17 WILLIAM B. STOEBUCK & JOHN W. WEAVER, WASHINGTON PRACTICE, REAL ESTATE: PROPERTY LAW (2d ed.2004) § 9.28, at 635 (hereinafter STOEBUCK & WEAVER); City of Des Moines v. Hemenway, 73 Wash.2d 130, 138, 437 P.2d 171 (1968); see also WASH. CONST. art. I, § 16. We are only at the first stage of this proceeding and Miller conceded at the hearing below that this property is being condemned for a public use.² Miller challenges whether condemnation is necessary.

¶ 10 Whether condemnation is necessary is largely a question for the legislative body of the jurisdiction or government agency seeking condemnation. Hemenway, 73 Wash.2d at 139, 437 P.2d 171. A legislative body's declaration of necessity "is conclusive in the absence of proof of actual fraud or such arbitrary and capricious conduct as would constitute constructive fraud." Id. at 139, 437 P.2d 171 (citing City of Tacoma v. Welcker, 65 Wash.2d 677, 399 P.2d 330 (1965)). In the condemnation context, necessary means "reasonable necessity under the circumstances. State ex rel. Lange v. Superior Court, 61...