City of Walla Walla v. Terry Knapp ( 2015 )

FILED
SEPTEMBER 10,2015
I n the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
CITY OF WALLA WALLA, )
) No. 32604-7-111
Respondent, )
)
v. )
)
TERRY KNAPP, property owner, and ) UNPUBLISHED OPINION
Walla Walla County, lienholder, )
)
Appellant. )
KORSMO, J. - Terry Knapp appeals from an order condemning his property,
challenging the procedure used by the city of Walla Walla (City) in the exercise of its
eminent domain authority. We affirm.
FACTS
Mr. Knapp owned a house at 712 Whitman Street that had been subject to
complaints by neighbors dating to the 1990s. The neighborhood was characterized as one
with quality older homes in generally good maintenance only five blocks from Pioneer
Park in Walla Walla.
City involvement with the property dates to 1995 when it placed a "stop work"
order on the property because work in progress exceeded the scope of a permit. In 2001,
the City declared a shed of substandard construction to be dangerous. In 2003, the house
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was in disrepair, violated several building codes, and the property was being used to store
at least 15 vehicles. Mr. Knapp made efforts to comply with the City's codes and
standards at the City's request, but the subsequent inspection revealed additional problems
not observable from the exterior. These included unauthorized and incomplete additions to
the building, as well as structural, plumbing, electrical and mechanical violations that
rendered the dwelling unsafe. Clerk's Papers (CP) at 323-328. The resulting problems
were extensive and included inadequate safety exits and fire hazards, inadequate
ventilation for sewage, inadequate temperature control, exposed live wiring, and creation
of an attractive nuisance. Consequently, Mr. Knapp was ordered to vacate. CP at 324.
Mr. Knapp did not correct the substandard conditions, but in 2005 he obtained a
permit for repairs. He, however, failed to get inspections and the permit was revoked. By
that time, he also had stopped paying the utility bill, leading to the water being
disconnected in February of2005. The City again declared the house dangerous and
ordered its abatement. CP at 331-339. Mr. Knapp removed the notices and continued to
live there. 1 In 2007, the City again issued a "stop work" order and posted notices of
danger. CP at 397. In addition to the problems with the structure, the property had
1 Since the property was without water, its backyard began being used by occupants
to defecate. See CP at 760, 765, 767.
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regressed back toward its pre-2003 condition, with numerous junk vehicles, bee hives and
debris. The City cited Mr. Knapp for these conditions. 2
The conditions persisted until the City began instituting condemnation proceedings.
On September 3,2013, the City Manager determined the property to be a threat to public
health, safety, and welfare. The City notified Mr. Knapp of the proceedings and then set
the matter for consideration before the City Council on September 11,2013. CP at 969,
971. After due consideration, the City Council determined that the property was a blight
because it had not been lawfully occupied since 2005, and was a threat to the public health,
safety and welfare. Accordingly, the council approved acquisition of the property. CP at
975-977.
The City first unsuccessfully attempted to acquire the property by negotiations. On
February 12,2014, the City Council authorized condemnation proceedings. CP at 986­
988. Two months later the City filed the condemnation petition in Walla Walla County
Superior Court. On June 16, a hearing was held to determine public use and necessity.
The trial court did not take live testimony, but considered submissions from the City and
from Mr. Knapp and heard argument from the parties. The trial court found:
2.9 The executive authority of the City of Walla Walla properly determined
on September 3,2013 that the dwellings, buildings, other structures, and
real property located at 712 Whitman Street in Walla Walla, Washington,
2 In addition to the physical conditions, the property became the site of criminal
activity including possession of stolen property and a marijuana grow. CP 446, 449-596.
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constitute a threat to public health, safety, and welfare based upon its well­
documented years of repeated and continuous code violations.
2.10 A dwelling, building, and other structures exist on the property, and
such dwelling, building, and other structures have not been lawfully
occupied for a period of one year or more.
2.10.1 The property has been without water since 2005, and it has been
without water ever since. Any occupancy of the property since 2005
unlawfully violated the International Maintenance Code.
2.10.2 The dwelling on the property was properly declared to be
dangerous and unfit for human occupancy in 2005. Any occupancy of the
property since 2005 unlawfully violated the Uniform Code for the
Abatement of Dangerous Buildings.
2.11 The dwelling, buildings, other structures, and real property located at
712 Whitman Street in Walla Walla, Washington are a blight on the
surrounding neighborhood.
CP at 1058-1059. 3
Based on these findings, the trial court concluded that condemnation of the property
was a public use and its acquisition by the City was a matter of public necessity. CP at
1059. Mr. Knapp then timely appealed to this court.
ANALYSIS
Mr. Knapp contends that the trial court was required to hear testimony and resolve
disputed facts at trial, and that the evidence did not support the trial court's ruling. He also
3 Mr. Knapp assigns error to these noted findings and four additional findings not
recited here.
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seeks attorney fees. We treat the first two contentions as one, and consider these arguments
in the noted order, after first reviewing the statutory process governing this action.
The process for condemning "blighted property" is set forth in chapter 35.80A RCW.
RCW 35.80A.OI0 allows condemnation of allegedly blighted property only on proof of any
two of the following three "blight" factors:
(1) If a dwelling, building, or structure exists on the property, the
dwelling, building, or structure has not been lawfully occupied for a
period of one year or more; (2) the property, dwelling, building, or
structure constitutes a threat to the public health, safety, or welfare as
determined by the executive authority of the county, city, or town, or the
designee of the executive authority; or (3) the property, dwelling,
building, or structure is or has been associated with illegal drug activity
during the previous twelve months.
The City relied upon the first two factors in this action.
Condemnation must occur "in accordance with the notice requirements and other
procedures for condemnation provided in Title 8 RCW." RCW 35.80A.01O. Procedurally,
the local governing body must first adopt a resolution declaring that the acquisition of
the property is necessary to eliminate a neighborhood blight. Id. Once a resolution is
adopted, condemnation requires three separate judgments from the local county court.
RCW 8.12.050; City ofDes Moines v. Hemenway, 73 Wash. 2d 130, 138,437 P.2d 171
(1968). The first and most relevant here, is a decree of public use and necessity. Des
Moines,73 Wn.2d at 138. The second and third determine the amount of compensation
and transfer title for the property. Id. A decree of public use and necessity may be entered
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upon proof that "(1) the use is really public, (2) the public interest requires it, and (3) the
property appropriated is necessary for that purpose." In re Condemnation Petition of
Seattle Popular Monorail Auth., 155 Wash. 2d 612, 629, 121 P.3d 1166 (2005). The
legislature's declaration that a use is a "public use" is not dispositive although it will be
accorded great weight. Des Moines, 73 Wash. 2d at 13 8. The concept of "public use" is a
fluid one:
The words "public use" are neither abstractly nor historically capable of
complete definition. The words must be applied to the facts of each case in
the light of current conditions.
Miller v. City ofTacoma, 61 Wash. 2d 374, 384, 378 P.2d 464 (1963).
Procedural Challenges
With these principles in mind, it is time to turn to Mr. Knapp's arguments. Two of
them address the procedure followed in the trial court--consideration of the evidence on
paper without hearing testimony and resolution of disputed facts without trial. These
arguments also were raised, and rejected, in City ofBlaine v. Feldstein, 129 Wash. App. 73,
117 P.3d 1169 (2005). In Blaine, the city petitioned to condemn a portion of the Feldstein
property for use as a boardwalk. The property owner sought an evidentiary hearing, but
the trial court rejected the request. Id. at 75. On appeal from an order of public use and
necessity, appellant initially challenged the decision to deny an evidentiary hearing.
Division One of this court upheld the trial court, finding no statutory requirement that
testimony be taken at the hearing even while noting that many courts had conducted
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evidentiary hearings on condemnation motions. Jd. at 76-77. Instead, the motion
procedure to be followed was one left to the discretion of the trial court under CR 7(b).
Jd. at 76. If there are questions of credibility and factual issues requiring testimony, the
court should take testimony. Jd.
Mr. Knapp relies upon the latter observation, contending that he raised factual
questions justifying a trial on the merits of the "blight" allegation. Blaine also answered
this contention. There the property owner took issue with the boardwalk project and
requested that testimony be taken, but did put his objections and evidence into the record
on paper. Jd. at 75-77. This court determined that "the facts necessary to resolve the case
are not in dispute" and that there were "no credibility issues before the court." Jd. at 77.
The critical facts were whether the boardwalk constituted a public use and whether the
Feldstein property was a necessary part of that use. Jd.
We reach a similar conclusion here. Although Mr. Knapp presented evidence that
he was trying to bring the building up to code and that no one was living there, these facts
do not present factual contlicts requiring testimony to resolve them. We assume that the
trial judge accepted the truth of Mr. Knapp's allegations, but that information did not
contradict any of the City's evidence and, thus, did not require the judge to conduct a
testimonial hearing.
While the factual circumstances of this case differ enough from Blaine that whether
a hearing should have been held presented a closer question than in that case, there is an
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additional significant fact here that was not present in Blaine. There the property owner
sought an evidentiary hearing with testimony. Id. at 75. Here, there is no evidence that
Mr. Knapp sought testimony. Absent a request for an evidentiary hearing, there is no basis
for finding that the court failed to exercise discretion in denying one.
Accordingly, for all of the noted reasons, we conclude that the trial judge did not
abuse his discretion in considering the extensive4 record without testimony. There were no
procedural irregularities.
Sufficiency ofthe Evidence
Mr. Knapp also argues that the evidence did not establish "blight" and therefore did
not support the determination of public use and necessity. Properly viewed, the evidence
supported that determination.
We review this claim for substantial evidence. Id. at 79. Substantial evidence exists
if the evidence is sufficient to persuade a fair-minded rational person of the truth of the
evidence. In re Estate ofJones, 152 Wash. 2d 1, 8,93 P.3d 147 (2004). Appellate courts do
not find facts and cannot substitute their view of the facts in the record for those of the trial
judge. Thorndike v. Hesperian Orchards, Inc., 54 Wn.2d 570,575,343 P.2d 183 (1959).
Accordingly, the presence of conflicting evidence does not prevent evidence from being
"substantial." E.g., Merriman v. Coke ley , 168 Wash. 2d 627, 631, 230 P.3d 162 (2010).
4 The City presented over 1,000 pages of written material. CP at 30-1037.
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The City relied upon the first two factors found in RCW 35 .80A.O 10: (l) the
building had not been lawfully occupied for a period of one year; and (2) the building
constituted a threat to the public health, safety, or welfare as determined by the executive
authority. It did not rely upon the third factor-use of the property as a drug house-
although the City did present evidence that Mr. Knapp had grown marijuana there and had
been convicted of using the property to sell marijuana. s
As to the first factor, the City presented evidence that the building had been
repeatedly tagged as uninhabitable and that lawfully no one could live in the building since
it did not have a water supply. In response, Mr. Knapp does not actually challenge the
sufficiency of that evidence, but, instead, reconstructs the language of the statute in four
syllogisms. He contends that the property was "lawfully unoccupied" because no one was
living there and Mr. Knapp still was trying to rehabilitate the building. While we
appreciate counsel's use of formal logic and, indeed, encourage all attorneys to make use
of logic where appropriate, this argument does not avail Mr. Knapp on this occasion. First,
we conclude that counsel's efforts, while creative, present false syllogisms. More
critically, the statute does not bear the syllogistical construction counsel placed on it.
In relevant part, the factor is satisfied if the "building ... has not been lawfully
occupied for a period of one year or more." RCW 35.80A.OI0. This language is clearly
Presumably this was because the noted drug offenses occurred more than 12
S
months before the condemnation action.
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directed to abandoned buildings that have not been "lawfully" (i.e., no trespassers)
occupied for a period of time. Mr. Knapp agreed that the building was unoccupied and that
the water had been cut-off since 2005, making the building uninhabitable as a matter of
law. The question was whether or not the building was "unoccupied" for the requisite time
period, not whether the lack of occupancy was lawful or unlawful. Substantial evidence
supported the determination that the building had "not been lawfully occupied" for at least
one year.
The second factor is whether the executive authority had determined that the
building constituted a threat to the public health, safety, or welfare. Again, the evidence
supported that determination. Not only had the City Manager and City Council expressed
their own findings along those lines, the City presented plentiful evidence of the city's
building codes and Mr. Knapp's building'S failure to satisfy the requirements of those
codes, rendering the building uninhabitable. In response to this evidence, Mr. Knapp
argues that the City's evidence did not address the present circumstances of the building
and did not consider his own affidavit that the building was not a threat to the public due to
his repairs.
The short answer is that the statute requires lack of occupancy over a substantial
period of time, thus making the building's history relevant to the executive's determination
that the building currently is a threat to the public interest. The building had, for quite
some time, been suffering from a number of substantial defects rendering it unable to
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shelter humans and Mr. Knapp had never remedied the defects by obtaining the necessary
permits and receiving approval from the relevant building code inspectors. The existence
of documented long-term problems and the lack of approved, permitted corrections to those
problems amply supported the executive authority's determination that the building could
not currently be inhabited. The trial court correctly concluded that the evidence supported
the executive's ruling.
Substantial evidence supported the determination of public use and necessity. The
trial court did not err.
Attorney Fees
Finally, Mr. Knapp requests attorney fees under the authority ofRCW 8.2S.07S(1)(a).
However, he has not prevailed as required by that section of the statute.
The provision states:
(1) A superior court having jurisdiction of a proceeding instituted by a
condemnor to acquire real property shall award the condemnee costs
including reasonable attorney fees and reasonable expert witness fees if:
(a) There is a final adjudication that the condemnor cannot acquire the
real property by condemnation.
When a court rules that the condemnation has failed, the property owner can recover
his costs, including attorney fees and expert witness fees. That did not happen in this
action since we affirm the ruling of public use and necessity. Accordingly, Mr. Knapp has
no basis for recovering attorney fees for this action to this point. Whether he may recover
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fees in the future for the valuation and title transfer aspects of this case awaits those
developments.
The judgment is affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
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