State v. Brannan

• Decision Date: 09 January 1975
• Docket Number: No. 43199,43199
• Citation: 530 P.2d 322,85 Wn.2d 64
• Parties: The STATE of Washington, Respondent, v. Harold D. BRANNAN, a/k/a Harold Dale Brannan, et al., Defendants, Arthur L. Cohen and Julia S. Cohen, his wife, Petitioners.
• Court: Washington Supreme Court

Page 64

85 Wn.2d 64

530 P.2d 322

The STATE of Washington, Respondent, v. Harold D. BRANNAN, a/k/a Harold Dale Brannan, et al., Defendants Arthur L. Cohen and Julia S. Cohen, his wife, Petitioners.

No. 43199.

Supreme Court of Washington, En Banc.

Jan. 9, 1975.

Rehearing Denied March 13, 1975.

Hickman & Webster, Lawrence Hickman, Colfax, for petitioners.

Slade Gorton, Atty. Gen., Charles F. Secrest, Joseph B. Loonam, Asst. Attys. Gen., Olympia, for respondent.

ROSELLINI, Associate Justice.

This matter is before the court upon certiorari to review an order of public use and necessity, entered by the Superior Court for Whitman County. The action was brought by the State to condemn lands for a state route, SR 276, which is planned as a 4-lane highway carrying traffic around the outskirts of Pullman, Washington. The petitioners own land used as their residence in the Palouse River Valley about 2 miles northwest of Pullman. The land is in a quiet suburban area with natural surroundings, including two adjacent ravines which serve as habitats for wildlife. The proposed highway right-of-way line will pass within approximately 100 feet of the petitioners' property and the construction of the highway will result in substantial damage to the wildlife 'cover' located in the adjacent ravines.

At the hearing in this matter, the petitioners objected to the routing of the highway past their home and through the ravines. They did not object to the route of the highway generally but rther contended that the highway commission should have adopted a different route in the vicinity of their residence.

The Superior Court, after hearing evidence offered by the petitioners and by the State, concluded that applicable environmental laws and statutory procedures had been complied with by the Washington State Highway Commission and that relevant factors had been duly weighed. It refused to find that, in selecting the route for the highway, the commission had acted in bad faith, fraudulently, or arbitrarily and capriciously. An order of public use and necessity was entered accordingly.

In challenging this order, the petitioners admit that highway purposes constitute a public use but propose that the order of public use and necessity be set aside because the trial court did not make an express finding that the public interests require the taking of the land in question, or that the property is really necessary for the proposed public purpose. For the proposition that such findings are mandatory, they cite State ex rel. Sternoff v. Superior Court, 52 Wash.2d 282, 325 P.2d 300 (1958); State ex rel. Wenatchee-Beebe Orchard Co. v. Superior Court, 57 Wash.2d 662, 359 P.2d 146 (1961); Southwest Suburban Sewer Dist. v. Burien Gardens, Inc., 61 Wash.2d 199, 377 P.2d 431 (1963); State v. Belmont Improvement Co., 80 Wash.2d 438, 495 P.2d 635 (1972).

While the cases cited support the proposition that, before an order of public use and necessity can be entered, the condemning authority must establish (1) that the proposed use is really a public use, (2) that the public interests require it, and (3) that the property appropriated is necessary for the proposed public use, none of them holds that the Superior Court must make an express finding upon each of these elements. Rather this court has, in those cases where the question has been raised, looked to the record and the statutory authority of the condemnor to determine whether these prerequisites were present.

The trial court in this case made no express finding upon these two questions. However, the lengthy findings which it entered concerning the history of the development of the plan for the highway, read in conjunction with its oral decision, with which they are consistent, leave no doubt that the court had determined that the public interests required the proposed highway and that the condemnation of the petitioners' property was necessary for the construction of the highway as designed and routed. Omission of a formal finding under such circumstances is not prejudicial error. Chamness v. Marquis, 62 Wash.2d 509, 383 P.2d 886 (1963).

The court indicated in its oral opinion that it would perhaps have chosen a different route, had the decision been its to make, but properly recognized that the choice of route is an administrative prerogative and not a judicial one.

We do not understand the petitioners to contend that the public interest would not be served by construction of the highway. They object only to the route selected, as it affects their property and adjacent ravines. At the hearing in this proceeding, they offered evidence of alternative routes which their experts testified would be feasible. These alternatives had not been previously submitted to the highway department, although it had, over a period of years, conducted a number of well-publicized hearings at which members of the public were invited to make comments and suggestions. The commission did in fact consider many alternatives, including alternative routes in the area of the petitioners' property, and finally chose the route which it found most feasible and acceptable to the community planning groups wich had participated in the development of the design and location decisions.

SR 276 has been established as a state route by statute, RCW 47.17.502, which designates only the terminal points. Authority to select the route is lodged in the highway commission under RCW 47.28.010.

It is not disputed that the construction of a state highway is a public purpose. Once the purpose for which the lands are taken has been adjudged to be public, the kind and type of roadway, the route to be followed, the design and engineering details become the subject in administrative decision, and these decisions will not be set aside or molested by the courts unless shown to have been arrived at without statutory authority or by bad faith or fraud, or capriciously and arbitrarily. Deaconess Hosp. v. Highway Comm'n, 66 Wash.2d 378, 403 P.2d 54 (1965). Such a decision might well be found to be arbitrary and capricious if the impact on the environment was not given adequate consideration.

A declaration of necessity by the appropriate legislative or administrative authority will be deemed conclusive in the absence of proof of actual fraud or such arbitrary and capricious conduct as would amount to constructive fraud. State v. Burdulis, 70 Wash.2d 24, 421 P.2d 1019 (1966); State v. Dawes, 66 Wash.2d 578, 404 P.2d 20 (1965); Tacoma v. Welcker,65 Wash.2d 677, 399 P.2d 330 (1965); Medical Lake v. Brown, 63 Wash.2d 41, 385 P.2d 387 (1963); King County v. Theilman, 59 Wash.2d 586, 369 P.2d 503 (1962), and State ex rel. Sternoff v. Superior Court, Supra. Accord: State v. Burch, 7 Wash.App. 657, 501 P.2d 1239 (1972). See also State v. Belmont Improvement Co., Supra, and State ex rel. Wenatchee-Beebe Orchard Co. v. Superior Court, Supra.

Seldom has this court found that a condemning authority has abused its trust in making a declaration of public necessity. This should not be surprising, for it is not to be presumed that such abuses often occur. In King County v. Theilman, Supra, we concluded that the county commissioners had acted so arbitrarily and capriciously as to be guilty of constructive fraud, when they condemned land for a road which benefited only private property and did not benefit that public generally. (But see State v. Belmont Improvement Co., Supra.) In State v. Bank of California, 5 Wash.App. 861, 491 P.2d 697 (1971), condemnation of a strip of land designated as a green belt was held invalid by the Court of Appeals, Division Two, because it benefited only adjoining property owners and did not benefit the general public or some segment of it. And in State ex rel. Sternoff v. Superior Court, 52 Wash.2d 282, 325 P.2d 300 (1958), this court held that two tracts of land could not be taken for a purpose different from that which was authorized by statute. Since they were not to be used for an authorized purpose, we said, they were not 'necessary' for such a purpose.

Neither of those objections is present in this case. It is not questioned that the petitioners' land is to be used for a purpose authorized by statute, and it is not suggested that the route chosen is designed to benefit private individuals rather than the public generally. It is simply the position of the petitioners that another feasible route should have been chosen, so as to avoid disturbing the petitioners in the quiet enjoyment of their property and the destruction of nearby ravines which serve as wildlife habitats.

The record shows that the route of this highway was selected after a lengthy investigative and deliberative process which began in 1965 and involved consultation with local planning bodies, other governmental agencies and interested members of the public. Pertinent data was gathered on topography, rainfall, land use, and wildlife and flora inventories. An environmental impact statement was prepared and filed. A corridor public hearing was held in 1970, which was widely publicized and at which citizen 'input' was invited. Alternative corridor proposals were solicited.

The petitioners, although they lived at their present address, did not attend this hearing, nor did they attend the subsequent design hearing which was held in 1971 and to which the public was invited. The corridor and design chosen by the highway authorities were not opposed by any of the local planning or governmental bodies, nor was there any citizen outcry against them. ¹

On June 13, 1972, a limited access hearing was held. The petitioners, as abutting owners, were given notice of this hearing, pursuant to RCW 47.52.133. They attended and voiced their objections to the proposed route but did not propose a specific alternate route. No appeal was taken from the highway commission's adoption of the access plan. Thereafter, the State commenced to acquire land for the highway,...