WIARD MEM. PARK DIST. v. Wiard Community Pool

• Decision Date: 28 August 2002
• Citation: 52 P.3d 1080,183 Or.App. 448
• Parties: WIARD MEMORIAL PARK DISTRICT, Respondent, v. WIARD COMMUNITY POOL, INC., an Oregon corporation, aka Harry Wiard Swimming Pool, Inc., an Oregon corporation, Appellant.
• Court: Oregon Court of Appeals

52 P.3d 1080

183 Or.App. 448

WIARD MEMORIAL PARK DISTRICT, Respondent, v. WIARD COMMUNITY POOL, INC., an Oregon corporation, aka Harry Wiard Swimming Pool, Inc., an Oregon corporation, Appellant.

9802641CV; A109789.

Court of Appeals of Oregon.

Argued and Submitted February 2, 2002.

Decided August 28, 2002.

Joel S. DeVore argued the cause for appellant. With him on the briefs was Luvaas, Cobb, Richards & Fraser, P.C.

Robert S. Hamilton argued the cause for respondent. With him on the brief was deSchweinitz & Hamilton.

Before ARMSTRONG, Presiding Judge, and LANDAU and KISTLER, Judges.

KISTLER, J.

The trial court granted plaintiff's petition to condemn defendant's property. On appeal, defendant argues that plaintiff abused its discretion when it determined that taking defendant's property was most compatible with the greatest public good and the least private injury. We affirm.

Plaintiff is the Wiard Memorial Park District, which is located in Klamath Falls. It is a public entity responsible for maintaining several acres of parks in the area, the largest of which is Wiard Park. Defendant is the Wiard Community Pool, Inc., which owns a parcel of land next to Wiard Park. Defendant is privately owned and has no connection, other than geographical, with plaintiff. Defendant acquired the property with the intention of building a pool.¹ It raised enough money to pour the concrete for the pool's shell but then ran out of funds. After sitting empty for several years, the shell was filled with gravel approximately 15 years ago. No construction has taken place on defendant's property since then.

Plaintiff became interested in acquiring defendant's property in the 1990s. Attendance at the park was increasing, and plaintiff's board members foresaw a need for a larger storage area, children's play equipment, and covered picnic areas. Discussions with defendant concerning the acquisition of the property proved unsuccessful. Defendant refused to sell the property because it was planning to build an indoor therapeutic pool, and plaintiff decided that it was necessary to exercise its power of eminent domain to take defendant's property. On May 14, 1997, plaintiff passed Resolution 97-001, declaring that it was necessary to take defendant's property

"for the purposes of providing park facilities to serve the District, for the health, safety, benefit and general welfare of the public [and] to locate, construct, operate and maintain, park facilities adjacent to the existing Wiard Memorial Park[.]"

After defendant rejected plaintiff's written offer to purchase the property, plaintiff filed a complaint, asking the court to condemn defendant's property and vest title in plaintiff.

At trial, defendant acknowledged that, under ORS 35.235(2), plaintiff's resolution was "presumptive evidence" that its proposed use was the most compatible with the greatest public good and the least private injury.² It argued, however, that it could rebut the presumption by showing that plaintiff had abused its discretion. In response, plaintiff argued that defendant's evidence was insufficient to overcome the presumption. On that issue, witnesses for plaintiff testified about the uses that plaintiff's board members envisioned, from increased storage to a new covered picnic area. They testified that current storage space was inadequate and that defendant's property was the most convenient for that need because it was next to the park. Additional testimony revealed that the public's use of the park would continue to increase and that plaintiff needed to acquire the property to meet the increased use.

Defendant's witnesses testified about the need for a therapeutic pool in the community and that defendant's property was centrally located. An architect testified about the designs that he had created for a therapeutic pool on defendant's property. However, additional testimony revealed mixed opinions about whether such a structure was even possible, given the property's small size. More specifically, there was disagreement about whether the lot was wide enough to provide sufficient setbacks as required by the city code and sufficient parking. Even if it were possible to build an indoor pool on the site, the cost of constructing it would run from $1.2 to $1.8 million. At the time of trial, defendant had raised approximately $10,000 towards that goal.

After considering the evidence, the trial court found that, although there was a need for a therapeutic pool in the area, the property had remained essentially unimproved for nearly 30 years. The court also found that defendant had not consistently sought to raise any funds to build the pool until plaintiff showed an interest in the property. The trial court found that plaintiff, in contrast, had both the money and the ability to put the property to public use immediately and that the park was experiencing heavy use. Although plaintiff had not decided whether to use the property for storage, to expand the children's playground, or as an additional covered picnic area, it intended to "finalize" its plan after the litigation ended. Given those facts, the court determined that plaintiff had not acted in bad faith or abused its discretion. The court also "f[ound] that [plaintiff] met its burden of proof on the issue of whether the taking would be most compatible with the greatest public good and the least private injury."

On appeal, defendant renews its argument that plaintiff abused its discretion in determining that its proposed use was the most compatible with the greatest public good and the least private injury.³ We begin with our standard of review. Both parties agree that, under ORS 35.235(2), we review plaintiff's decision for abuse of discretion, but they disagree about what that standard means. Defendant argues for a searching review of plaintiff's decision while plaintiff contends that our standard of review is more limited. Plaintiff argues that we can find an abuse of discretion only if the record reveals a complete "absence of `any economic justification' " for its decision. See Emerald PUD v. Pacificorp, 100 Or.App. 79, 86, 784 P.2d 1112,

rev. den. 310 Or. 121, 794 P.2d 793 (1990).

The issue on which the parties agree—that we review a public condemner's decision for abuse of discretion under ORS 35.235(2)—is one that neither the Supreme Court nor we have resolved. The Supreme Court observed in State ex rel City of Eugene v. Woodrich, 295 Or. 123, 132-33, 665 P.2d 333 (1983), that

"[s]ome decisions of this court, antedating the enactment of [ORS 35.235], * * * recited the `fraud, bad faith, or abuse of discretion' formula as a limit on judicial review of a condemner's finding that it was necessary to take specific property for a public use. See Moore Mill & Lumber Co. v. Foster, 216 Or. 204, 236-237, 336 P.2d 39; 337 P.2d 810 (1959), Port of Umatilla v. Richmond, 212 Or. 596, 620-627, 321 P.2d 338 (1958),City of Eugene v. Johnson, 183 Or. 421, 426-429, 192 P.2d 251 (1948). In the act, ORS 35.235 provides statutory `presumptions' that the property is necessary for a public use and that this use `is planned or located in a manner which will be most compatible with the greatest public good and the least private injury.' The section specifies pretrial determination of challenges to this presumption only as to private condemners, ORS 35.235(4). We need not here examine whether this makes the `presumptive evidence' in public takings conclusive or whether the old formula was meant to survive, because the focus of the present proceeding has shifted [to a different issue which made it unnecessary for the court to resolve the appropriate standard of review]."

Seven years later, we rejected the suggestion in Woodrich that a public condemner's determination was conclusive, but we did not resolve our scope of review beyond that. Emerald PUD, 100 Or.App. at 84 n. 4, 784 P.2d 1112. Rather, we assumed without deciding that nothing less than an abuse of discretion would overcome the statutory presumption. Id. Because neither Woodrich nor Emerald resolves our standard of review, we look initially to the text and context of ORS 35.235(2) to determine the legislature's intent. See PGE v. Bureau of Labor and Industries, 317 Or. 606, 611, 859 P.2d 1143 (1993)

.

In this case, we begin with the statute's context because it provides perspective on the text. See Plotkin v. Washington County, 165 Or.App. 246, 250, 997 P.2d 226 (2000)

. The legislature adopted ORS 35.235(2) in 1971 to provide a uniform procedure for condemning property. See Powder Valley Water v. Hart Estate Investment Co., 146 Or.App. 327, 331, 932 P.2d 101 (1997).⁴ Before then, the authority to condemn property was dispersed through various statutes.⁵ The terms of those statutes were not always consistent, however. For instance, the Port of Umatilla was authorized to condemn property that was "necessary or convenient" in carrying out its work. See former ORS 777.115 repealed by Or. Laws 1971, ch. 728, § 16. In contrast, the State Highway Commission had the power to create a resolution that was "conclusive evidence of the public necessity of such proposed public improvement or project that such real property, or interest therein, is necessary therefor and that the proposed improvement or project is planned or located in a manner which will be most compatible with the greatest public good and the least private injury." Former ORS 366.370(1) (repealed by Or. Laws 1971 ch. 741, § 38).

Although the terms of these statutes varied, the Supreme Court uniformly recognized that a public condemner's decision to take property was a legislative decision that was subject to a deferential standard of review. Port of Umatilla v. Richmond, 212 Or. 596, 622, 321 P.2d 338 (1958); State v. Pac. Shore Land Co., 201 Or. 142, 155-56, 269 P.2d 512 (1954); City of Eugene v. Johnson, 183 Or. 421, 426, 192 P.2d 251 (1948). In Johnson, the court reaffirmed the settled...