City Of Seattle v. Frederick A. Kaseburg ( 2018 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE CITY OF SEATTLE, a municipal )
corporation, ) DIVISION ONE
)
Respondent, ) No. 76204-4-1
)
v. )
)
FREDERICK A. KASEBURG, an )
individual; MORTGAGE ELECTRONIC ) UNPUBLISHED OPINION
REGISTRATION SYSTEMS, INC., a )
Delaware corporation; BANK OF )
AMERICA, N.A., a Delaware )
corporation; and KING COUNTY, a )
subdivision of the state of Washington, )
)
Appellants. )
)
THE CITY OF SEATTLE, a municipal )
corporation, )
)
Respondent, )
)
v. )
)
KEITH L. HOLMQUIST, an )
individual and Personal Representative )
of the Estate of Kay A. Burdine; HEIRS )
OF KAY A. BURDINE, deceased and )
Keith L. Holmquist; J.P. MORGAN )
CHASE & CO., successor-in-interest to )
WASHINGTON MUTUAL BANK, a )
Delaware corporation; and KING )
COUNTY, a subdivision of the state of )
Washington, )
)
Appellants. ) FILED: March 26, 2018
)
No. 76204-4-1/2
DWYER, J. — Frederick Kaseburg and Keith Holmquist appeal from the trial
court's order entering findings of public use and necessity, determination of
required notice, and setting discovery deadlines. On appeal, Kaseburg and
Holmquist contend that the trial court erred by failing to find that the City of
Seattle violated their due process rights, the Open Public Meetings Act of 19711
(OPMA), and the appearance of fairness doctrine by adopting an ordinance
authorizing condemnation of their property. Kaseburg and Holmquist also
contend that the trial court erred by failing to find that the City's conduct was
arbitrary and capricious. Finding no error, we affirm.
1
Frederick Kaseburg and Keith Holmquist (collectively the Appellants) own
waterfront property located at the end of NE 130th Street in Seattle (the
Property). The Property was platted in the early 1920s and was commonly used
as a community beach for decades. In 2012, the Appellants filed a quiet title
action against King County. The court granted summary judgment in favor of the
Appellants and the City appealed, filing a notice of supersedeas without bond.
We affirmed. Holmquist v. King County, 182 Wash. App. 200, 328 P.3d 1000
(2014)(Holmquist I). Following our resolution of that case, the Appellants moved
the trial court to award damages resulting from the City's decision to supersede
the judgment quieting title. The trial court denied their motion. We reversed.
Holmquist v. King County, 192 Wash. App. 551, 368 P.3d 234(2016)(Holmquist II).
1 Ch. 42.30 RCW.
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Following Holmquist I, community advocates began to contact the Seattle
City Council (Council) and express concern over the loss of their community
beach. Some community members asked the Council to take action and secure
the Property for community use through eminent domain. Community advocates
arranged for some council members to visit the Property, tour the beach, and
meet with other members of the community who supported the City's acquisition
of the beach.
While Holmquist II was pending in this court, Kaseburg's fiancée, Pepper
Schwartz, e-mailed council member Nick Licata to express her disapproval of
any potential acquisition of the Property. Frank Video, a legislative aide to
council member Licata, replied to Schwartz. Video informed Schwartz that, until
the ongoing litigation between the Appellants and the City was concluded, the
Council was advised not to communicate further with the Appellants. Video
advised Schwartz to direct any further communication to the City's legal
department.
On June 8, 2015, during a council meeting that was open to the public, all
of the council members discussed and signed a letter to the mayor expressing
their support for the acquisition of the Property.
Over the past several months, the City Council has received
numerous inquiries from concerned residents of northeast Seattle
about the N.E. 130th Street beach on Lake Washington. . . .
The N.E. 130th Street beach had offered the only public access to
the northern end of Lake Washington in a 5.5 mile span stretching
from Matthews Beach in the south to Log Boom Park in the north.
We believe the N.E. 130th Street beach provided an important
public benefit for at least 83 years. And we believe the City should
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use its power of eminent domain to acquire this beach property and
restore the public access that previously existed. We also believe
that this property should be acquired for public park purposes under
the jurisdiction of the City's Department of Parks and Recreation,
identified as a public park and maintained as such.
We appreciate that you have begun exploring the option of
acquiring the two properties involved though condemnation. We
look forward to learning the City's progress in pursuing eminent
domain and moving forward with the acquisition of this property for
the public's use.
Thereafter, the City's Department of Parks and Recreation prepared Ordinance
No. 124864 (the Ordinance). The Ordinance authorized the superintendent of
the department to "acquire, through negotiation or condemnation,[the Property]
for open space, park, and recreation purposes."
On September 1, 2015, the City sent the Appellants a "Notice of Seattle
City Council Final Action to Adopt an Ordinance Authorizing Condemnation .
(Eminent Domain)" of the Property (the Notice). The Notice informed the
Appellants that the Council would be voting on an ordinance authorizing the
acquisition of the Property and that the City would be taking public comment on
September 15, 2015. The Notice stated that the Appellants would be provided
with an opportunity to comment on the Ordinance in person and that they could
also submit comments in writing to the committee chair. The Notice also
informed the Appellants when the Council would be taking final action on the
Ordinance:
Final Action
Should the Parks, Seattle Center, Libraries and Gender Pay
Equality Committee pass the Council Bill on to the City Council, the
ordinance authorizing condemnation of your property will be
presented for final action (adoption) to the Seattle City Council on
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Monday September 21 at 2:00 p.m., in the City Council
Chambers ... . After approval of the ordinance the City of Seattle
will be authorized to acquire your property through voluntary
negotiation or it may use its powers of eminent domain to condemn
your property.
On September 15, 2015, the committee approved sending the Ordinance
to the Council. On September 21, 2015, the Council voted to approve the
Ordinance. The mayor signed the legislation eight days later. On August 12,
2016, the City filed its petition for eminent domain in the superior court.
Following a hearing, the trial court found that the City had provided the
Appellants with proper notice, that the City's acquisition of the Property was for a
public use, and that the acquisition was necessary to serve that public use. The
trial court also found that the City had not violated the Appellants' due process
rights, the OPMA, or the appearance of fairness doctrine, and that the City's
conduct was not arbitrary or capricious.2
11
The Appellants do not directly dispute the trial court's findings of public
use and necessity. Rather, they rely on a series of collateral attacks on the
order. Each is addressed in turn.
A
The Appellants first contend that the trial court erred by finding that the
City had not violated their constitutional due process rights. The Appellants
assert that the council members "pre-decided" to condemn the Property prior to
2 The trial court incorporated its oral findings into its written order.
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No. 76204-4-1/6
holding a public hearing on the Ordinance, thus depriving them of notice and a
meaningful opportunity to be heard. We disagree.
Article!, section 3 of the Washington Constitution provides,"No person
shall be deprived of life, liberty, or property, without due process of law." A
deprivation is a "direct and adverse effect." Wenatchee Reclamation Dist. v.
Mustell, 102 Wash. 2d 721, 725, 684 P.2d 1275(1984). "It is not a theoretical harm,
nor is it an increased probability of harm." Carlisle v. Columbia Irria. Dist., 168
Wash. 2d 555, 568, 229 P.3d 761 (2010). "Even if a deprivation becomes more
likely as a result of government action, due process does not apply if an actual
deprivation is contingent on a subsequent action." Carlisle, 168 Wash. 2d at 568.
"Before the judicial process for condemnation may begin, a city must •
adopt an ordinance authorizing the condemnation." Pub. Util. Dist. No. 2 of
Grant County v. N. Am. Foreign Trade Zone Indus., LLC, 159 Wash. 2d 555, 565,
151 P.3d 176(2007)(NAFTZI)(citing RCW 8.12.040). Pursuant to RCW
8.12.030, cities are authorized to condemn land and property for, among other
uses, public parks. "Once an entity with the power of eminent domain makes its
initial determination to authorize a condemnation action of private property, the
matter moves to the superior court for the condemnation, which involves the
court determining public use and necessity, fixing the amount of just
compensation, and transferring title." NAFTZI, 159 Wash. 2d at 565 (citing In re
Seattle Popular Monorail Auth., 155 Wash. 2d 612, 629, 121 P.3d 1166 (2005)).
In a condemnation proceeding, a property owner's due process rights are
not implicated until the judicial process commences. NAFTZI, 159 Wash. 2d at 570-
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No. 76204-4-1/7
71. The adoption of an ordinance authorizing condemnation "does not result in a
taking of property and does not deprive a property owner of any rights." NAFTZI,
159 Wash. 2d at 570. "Even if the resolution is approved, the condemnation action
may or may not go forward. The actual condemnation action does not occur until
the judicial hearing." NAFTZ1, 159 Wash. 2d at 570-71. Thus, prior to the judicial
proceeding, property owners suffer "no deprivation cognizable under the law of
due process." Carlisle, 168 Wash. 2d at 569.
In 2007, the legislature enacted certain notice requirements for the
adoption of condemnation ordinances, codified at RCW 8.25.290. Pursuant to
that statute, a condemnor must provide notice to property owners before "tak[ing]
a final action to authorize the condemnation of a specific property." RCW
8.25.290(1)(a). This notice must include a description of the property and the
"date, time, and location of the final action at which the potential condemnor will
decide whether or not to authorize the condemnation of the property." RCW
8.25.290(2)(a)(ii). "Final action" means "a collective positive or negative
decision, or an actual vote by a majority of the members of a governing body
when sitting as a body or entity, upon a motion, proposal, resolution, order, or
ordinance." RCW 8.25.290(4)(a); RCW 42.30.020(3).
Here, the City provided the Appellants with notice of the date, time, and
location of the final action, thus complying with the notice requirements set forth
in RCW 8.25.290. The council members then voted to adopt the Ordinance. The
adoption of the Ordinance authorized the City to file its petition for eminent
domain but did not itself result in a deprivation. Accordingly, the adoption of the
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No. 76204-4-1/8
Ordinance could not have violated the Appellants' due process rights. See
NAFTZI, 159 Wash. 2d at 570.
Nevertheless, the Appellants contend that the council members "pre-
decided" to condemn the Property when they signed the June 2015 letter to the
mayor and that such a decision constitutes a "final action" pursuant to RCW
8.25.290. Because they were not provided with notice or an opportunity to be
heard before the council members took final action, the Appellants aver, they
were deprived of constitutional due process.
As a preliminary matter, the council members' decision to support the
possibility of condemnation—or "pre-deciding" as the Appellants characterize it—
could not possibly constitute a "final action to authorize the condemnation."
RCW 8.25.290(1)(a)(emphasis added). This is so because the condemnation
was not authorized until the Ordinance was adopted. The June 2015 letter to the
mayor authorized no action whatsoever. It is entirely unremarkable that the
council members would individually or collectively support condemnation at some
point in time prior to setting a public hearing on the adoption of the Ordinance.3
The council members did not take final action to authorize the condemnation by
voicing their support for eminent domain prior to the adoption of the Ordinance.
In any event, even if the council members did collectively and conclusively
agree to adopt the Ordinance by signing the June 2015 letter, such a decision
3 Indeed,"the election of legislators is often based on their announced views and
attitudes on public questions." Harris v. Hornbaker, 98 Wash. 2d 650, 657,658 P.2d 1219(1983)
(quoting Smith v. Skagit County, 75 Wash. 2d 715, 740-41, 453 P.2d 832(1969)). "[S]uch a
predisposition is an inherent part of the political process. Appellants' recourse is through the
electoral process, not judicial review of the motives of one acting in a legislative capacity."
Hornbaker, 98 Wash. 2d at 661.
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No. 76204-4-1/9
would not have violated the Appellants' constitutional due process rights. In
2010, three years following the enactment of RCW 8.25.290, our Supreme Court
again considered due process protections during condemnation proceedings:
It did not matter that a resolution authorizing condemnation was
adopted at a public meeting before the judicial hearing, thus making
condemnation more likely, because an adopted resolution "does
not result in a taking of property and does not deprive a property
owner of any rights."
Carlisle, 168 Wash. 2d at 569 (quoting NAFTZI, 159 Wash. 2d at 570). Notably, the
court also recognized that due process does not require the government to
provide individuals with notice and an opportunity to be heard at every decision
making stage that ultimately results in a deprivation:
Due process does not entitle a property owner to notice and
a hearing on the decisions leading up to the [deprivation]. If notice
and a hearing preceded every government action, government
would be paralyzed. Government decision making is often a
multistep process, with several intermittent stages between the
start of the process and the final decision. It is not practicable or
necessary for notice and hearing to accompany every stage.
Carlisle, 168 Wash. 2d at 572.
Here, the City did not take final action to authorize the condemnation until
the Council voted to adopt the Ordinance. Even then, the adoption of the
Ordinance did not implicate the Appellants' constitutional due process rights.
There was no error.
B
The Appellants next contend that the trial court erred by finding that the
City had not violated the OPMA. This is so, they assert, because the council
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No. 76204-4-1/10
members agreed to condemn the Property after conducting a "chain meeting" via
e-mail that was not open to the public. We disagree.
The OPMA is intended to ensure that public bodies make decisions
openly:
The legislature finds and declares that all public commissions,
boards, councils, committees, subcommittees, departments,
divisions, offices, and all other public agencies of this state and
subdivisions thereof exist to aid in the conduct of the people's
business. It is the intent of this chapter that their actions be taken
openly and that their deliberations be conducted openly.
RCW 42.30.010. The act is to be liberally construed. RCW 42.30.910.
Pursuant to the OPMA,lap meetings of the governing body of a public
agency shall be open and public and all persons shall be permitted to attend any
meeting of the governing body of a public agency, except as otherwise provided
in this chapter." RCW 42.30.030. A "meeting" is defined as "meetings at which
action is taken." RCW 42.30.020(4). "Action" is defined as "the transaction of
the official business of a public agency by a governing body including but not
limited to receipt of public testimony, deliberations, discussions, considerations,
reviews, evaluations, and final actions." RCW 42.30.020(3).
Here, the Appellants contend that the City violated the OPMA by
communicating via e-mail with members of the community. The Appellants
assert that such communications constituted a "chain meeting" that was not open
to the public. Br. of Appellants at 18. Alternatively, the Appellants contend that
an open public hearing simply never occurred because the council members had
pre-decided to condemn the Property before the public hearing on the
Ordinance, as evidenced by the June 2015 letter to the mayor.
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No. 76204-4-1/11
In support of their first proposition, the Appellants rely on Wood v. Battle
Ground School District, 107 Wash. App. 550, 27 P.3d 1208(2001). Wood
concerned a number of e-mails regarding official board business sent between a
quorum of the members of a school board. 107 Wash. App. at 565. Division Two
of this court held that the OPMA's definition of "meeting" as "meetings at which
action is taken" was broad enough to include the exchange of e-mails between
members of a governing body. Wood, 107 Wash. App. at 563-64. The court stated
that, in order for a violation of the OPMA to occur:(1) a majority of the governing
body must meet,(2) all participants must collectively intend to transact official
business, and (3)the participants must discuss issues that may or will come
before the governing body for a vote. Wood, 107 Wash. App. at 564-65. Noting
that "the active exchange of information and opinions in these e-mails, as
opposed to the mere passive receipt of information, suggests a collective intent
to deliberate and/or to discuss Board business," the court ruled that genuine
issues of material fact remained concerning whether the e-mails constituted a
meeting in violation of the OPMA. Wood, 107 Wash. App. at 566.
Here, unlike in Wood, there is no evidence of e-mails sent between a
majority of the council members concerning official Council business. Rather,
the e-mails upon which the Appellants rely were communications between
individual council members and members of the community. Were the
Appellants correct that such communications constitute a meeting, virtually all
communications between council members and the public would constitute a
meeting in violation of the OPMA.
No. 76204-4-1/12
The Appellants' alternative contention is likewise unpersuasive. As
discussed herein, the council members signed the June 2015 letter to the mayor
at a council meeting open to the public. That some or all of the council members
may have "pre-decided" to sign the letter prior to the public meeting is of no
moment. Similarly, the adoption of the Ordinance occurred at a meeting open to
the public. The Appellants have produced no evidence of any meeting between
council members subject to the OPMA that was not open to the public.
There was no error.
The Appellants next contend that the trial court erred by finding that the
appearance of fairness doctrine does not apply in these circumstances. The
Appellants assert that the adoption of a condemnation ordinance constitutes a
quasi-judicial proceeding that must comply with the appearance of fairness
doctrine. They are wrong.
The appearance of fairness doctrine was established to ensure fair
hearings by legislative bodies. Ravnes v. City of Leavenworth, 118 Wash. 2d 237,
245, 821 P.2d 1204 (1992). "The doctrine requires that public hearings which
are adjudicatory in nature meet two requirements: the hearing itself must be
procedurally fair. . . and it must be conducted by impartial decisionmakers."
Ravnes, 118 Wash. 2d at 245-46 (citing Smith v. Skagit County, 75 Wash. 2d 715, 740,
453 P.2d 832(1969); Buell v. City of Bremerton, 80 Wash. 2d 518, 523, 495 P.2d
1358 (1972)). "The intent of the doctrine is to maintain public confidence in
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quasi-judicial decisions made by legislative bodies." Harris v. Hornbaker, 98
Wash. 2d 650, 658,658 P.2d 1219(1983).
The appearance of fairness doctrine was modified by the legislature in
1982 when it enacted chapter 42.36 RCW,"Appearance of Fairness Doctrine—
Limitations." Ravnes, 118 Wash. 2d at 246. That act provides, in pertinent part:
Application of the appearance of fairness doctrine to local land use
decisions shall be limited to the quasi-judicial actions of local
decision-making bodies as defined in this section. Quasi-judicial
actions of local decision-making bodies are those actions of the
legislative body, planning commission, hearing examiner, zoning
adjuster, board of adjustment, or boards which determine the legal
rights, duties, or privileges of specific parties in a hearing or other
contested case proceeding. Quasi-judicial actions do not include
the legislative actions adopting, amending, or revising
comprehensive, community, or neighborhood plans or other land
use planning documents or the adoption of area-wide zoning
ordinances or the adoption of a zoning amendment that is of area-
wide significance.
RCW 42.36.010. The act further provides that "[n]o legislative action taken by a
local legislative body, its members, or local executive officials shall be invalidated
by an application of the appearance of fairness doctrine." RCW 42.36.030.
Our Supreme Court has announced four factors for courts to consider
when determining whether an action is quasi-judicial or legislative in nature:
"(1) whether the court could have been charged with the duty at
issue in the first instance;(2) whether the courts have historically
performed such duties;(3) whether the action of the municipal
corporation involves application of existing law to past or present
facts for the purpose of declaring or enforcing liability rather than a
response to changing conditions through the enactment of a new
general law of prosecutive application; and (4) whether the action
more clearly resembles the ordinary business of courts, as opposed
to those of legislators or administrators."
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Harris v. Pierce County, 84 Wash. App. 222, 228, 928 P.2d 1111(1996)(quoting
Ravnes, 118 Wash. 2d at 244-45).
Here, applying the four factors, it is clear that the adoption of a
condemnation ordinance is not a quasi-judicial act. Courts have no authority to
adopt an ordinance authorizing condemnation and have not historically done so.
Neither do courts authorize the expenditure of City funds for the benefit of the
public. "Such policymaking decisions, which are based on the consideration of
public opinion, are within the purview of legislative bodies, not courts of law."
Harris, 84 Wash. App. at 229 (rejecting the contention that the city council's
adoption of a master trail plan was a quasi-judicial act).
Nevertheless, the Appellants contend that the appearance of fairness
doctrine applies to the adoption of condemnation ordinances. The Appellants
cite to no authority holding that such hearings are quasi-judicial in nature or that
the doctrine applies to the adoption of condemnation ordinances. Rather, they
assert that the doctrine applies to hearings "of any sort," that are required by
statute and affect individual property rights. Br. of Appellants at 19-21.
In support of their contention, the Appellants rely on the general principles
articulated by our Supreme Court in Smith, 75 Wash. 2d at 739-40. Smith
concerned a statutory requirement that a public hearing be held prior to the
amendment of a comprehensive zoning plan. 75 Wash. 2d at 732-33. Noting that
such hearings were "an integral part of the legislative process required by
statute," the court held that the appearance of fairness doctrine applied. Smith,
75 Wash. 2d at 733, 739-41.
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The Appellants' reliance on Smith is misplaced. "Subsequent cases
clarifying the applicability of the doctrine. .. have recognized that the rezoning of
specific tracts is adjudicatory in nature, not legislative." Hornbaker, 98 Wash. 2d at
659 n.2 (citing Fleming v. City of Tacoma, 81 Wash. 2d 292, 301, 502 P.2d 327
(1972)(overruled on other grounds by Ravnes, 118 Wash. 2d 237)). "Thus, the
statement in Smith is explained by the fact that the case preceded the adoption
of the term quasi judicial to identify adjudicatory decisions by legislative bodies; it
does not reflect an application of the doctrine to legislative decisions."
Hornbaker, 98 Wash. 2d at 659 n.2.
Smith did not extend the appearance of fairness doctrine to legislative
hearings simply because they are required by statute.
A statutory public hearing by a legislative body is not the
talisman for invoking the appearance of fairness doctrine. If it were,
we would unfairly constrain the Legislature in its attempt to provide
opportunities for public pailicipation in legislative decisions. If by
requiring a public hearing the Legislature would implicitly force its
subdivisions to adhere to a full panoply of adjudicatory safeguards,
it might well decide to eliminate such hearings altogether. Prior
cases should not be interpreted as indicating that a decision
becomes quasi judicial and triggers the appearance of fairness
doctrine by the mere fact that a hearing is required by statute.
Hornbaker, 98 Wash. 2d at 660 (citing Polygon Corp. v. City of Seattle, 90 Wash. 2d
59, 67-68, 578 P.2d 1309 (1978)).
The trial court did not err.4
4 The other cases cited by the Appellants are likewise unpersuasive. Buell, 80 Wash. 2d
518, Fleming, 81 Wash. 2d 292, and Hayden v. City of Port Townsend, 28 Wash. App. 192, 622 P.2d
1291 (1981), all involved quasi-judicial actions related to rezoning decisions. Most important, all
of these cases were decided before the enactment of RCW 42.36.010, which clarified which land
use decisions were quasi-judicial and therefore subject to the application of the appearance of
fairness doctrine. None of these cases suggest that the doctrine may be applied to legislative
decisions or that hearings required by statute are necessarily quasi-judicial in nature.
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No. 76204-4-1116
Finally, the Appellants contend that the trial court erred by adopting the
findings and conclusions in the Ordinance. This is so, they assert, because the
City's adoption of the Ordinance was arbitrary and capricious. We disagree.
Following the adoption of an ordinance authorizing a condemnation action,
the condemnor must file a petition in superior court requesting a decree of public
use and necessity. RCW 8.12.050. The question of whether the use is "really a
public use" is a judicial determination, whereas the question of necessity is a
legislative determination. NAFTZI, 159 Wash. 2d at 573, 575.
A legislative declaration of necessity is "conclusive in the absence of
actual fraud or arbitrary and capricious conduct, as would constitute constructive
fraud." Seattle Popular Monorail, 155 Wash. 2d at 629. "A condemnation of private
property is necessary if it is 'reasonably necessary' under the circumstances."
NAFTZI, 159 Wash. 2d at 576 (internal quotation marks omitted)(quoting Seattle
Popular Monorail, 155 Wash. 2d at 636 n.19). "Put another way, when there is a
reasonable connection between the public use and the actual property, this
element is satisfied. It need not be the best or only way to accomplish a public
goal." Cent. Puget Sound Reg'l Transit Auth. v. Miller, 156 Wash. 2d 403, 421, 128
P.3d 588 (2006). To establish fraud or constructive fraud in this setting, there
must be evidence showing that "the public use was merely a pretext to effectuate
In any event, even if the doctrine did apply to the adoption of condemnation ordinances,
the only basis for violation set forth by the Appellants is that the council members "pre-decided" to
condemn the property, as evidenced by the letter to the mayor. But, as discussed herein, the
letter to the mayor was signed at a meeting open to the public. That the individual council
members may have decided to support condemnation at some point in time prior to that public
meeting is of no significance.
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No. 76204-4-1/17
a private use on the condemned lands." State ex rel. Wash. State Convention &
Trade Ctr. v. Evans, 136 Wash. 2d 811, 823, 966 P.2d 1252(1998).
Where the trial court has already weighed the evidence supporting public
necessity, we review the record to determine only whether the factual findings
are supported by substantial evidence. Miller, 156 Wash. 2d at 419. "Substantial
evidence is viewed in the light most favorable to the respondent and is evidence
that would 'persuade a fair-minded, rational person of the truth of the finding.'
Miller, 156 Wash. 2d at 419 (quoting State v. Hill, 123 Wash. 2d 641, 644, 870 P.2d
313(1994)).
Here, the appellants contend that(1)the adoption of the Ordinance was
"arbitrary and capricious and fell short of due process—including the appearance
of fairness" and that, therefore, "the judicial determination necessarily will also
lack due process," Br. of Appellants at 25,(2)the adoption of the Ordinance was
"tainted—or even illegal—because the City secretly met with advocates" and
that, therefore, the appearance of fairness doctrine "must preclude giving 'great
weight' to its determinations of public use and necessity," Br. of Appellants at 25,
(3)"the trial court entered no substantive findings explaining why this may be
'really a public use' or why the existing waterfront 135th Street end is not
satisfactory", Br. of Appellants at 26, and (4) the trial court erred by failing to
enter substantive findings justifying its legal conclusions. Br. of Appellants at 27.
The Appellants first two assertions are predicated on their arguments that
the adoption of the Ordinance violated constitutional due process and the
appearance of fairness doctrine. As discussed herein, both of those contentions
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No. 76204-4-1/18
are meritless. The adoption of a condemnation ordinance does not effectuate a
deprivation and does not implicate due process. Neither does the adoption of a
condemnation ordinance implicate the appearance of fairness doctrine, which
does not apply to legislative actions. Accordingly, neither due process nor the
appearance of fairness doctrine preclude the trial court from affording a
legislative determination of necessity great weight.
The Appellants' latter two assertions are likewise unpersuasive. The
Appellants cannot seriously dispute that a public park constitutes a public use.
See RCW 8.12.030 (authorizing condemnation for a wide range of public uses,
including "public parks"). The trial court found that a public park was a public
use—no authority requires a more robust finding of public use. Neither was the
trial court required to explain why an alternative location was not satisfactory.
See Miller, 156 Wash. 2d at 421 ("This court has explicitly held already that the
'mere showing' that another location is just as reasonable does not make the
selection arbitrary and capricious."). Finally, the Appellants cite to no authority in
support of their assertion that the trial court was required to make more robust
factual findings. The trial court heard testimony, weighed evidence, and found
that the acquisition of the Property for a public park was a public use and was
necessary to serve that public use.5 Those findings are supported by substantial
evidence and sufficiently support the trial court's conclusions of law.
There was no error.
5 Contrary to the Appellants assertion that "[n]owhere was fair consideration given to the
facts relevant to the condemnees," Br. of Appellants at 26, the trial court gave fair consideration
to all of the relevant facts when it heard testimony and weighed the evidence.
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No. 76204-4-1/19
Affirmed.
We concur:
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