Central Puget Sound Regional Transit Authority v. Miller

¶1 — Kenneth R. Miller, 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.

Fairhurst, J.

¶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 web site. 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 commuter rail an alternative to commuters along the 1-5 corridor.

¶5 Currently, commuter 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.

f 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 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 Wn.2d 673, 675, 446 P.2d 193 (1968) (citing Miller v. City of Tacoma, 61 Wn.2d 374, 378 P.2d 464 (1963)). That power is limited by the constitution and must be exercised under lawful procedures. Miller, 61 Wn.2d at 382-83; King County, 74 Wn.2d at 675. 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 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 § 9.28, at 635 (2d ed. 2004) (hereinafter Stoebuck & Weaver); City of Des Moines v. Hemenway, 73 Wn.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 Wn.2d at 139. 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. (citing City of Tacoma v. Welcker, 65 Wn.2d 677, 399 P.2d 330 (1965)). In the condemnation context, “ ‘necessary’... mean[s] reasonable necessity under the circumstances.” State ex rel. Lange v. Superior Court, 61 Wn.2d 153, 156, 377 P.2d 425 (1963). It does not mean immediate, absolute, or indispensable need.” Id. at 140.

¶11 Typically, challenges to necessity are raised when arguably excess land is seized or when condemnation is for a disguised private use. See, e.g., State ex rel. Wash. State Convention & Trade Ctr. v. Evans, 136 Wn.2d 811, 966 P.2d 1252 (1998) (holding condemnation of property needed for convention center expansion lawful even though an incidental private use would ensue). Out of respect for our coordinate branches of government, judicial review is deferential. E.g., id. at 823. Additionally,

[w]hen it comes to such discretionary details as the particular land chosen, the amount of land needed, or the kinds of legal interests in that land that are necessary for the project, many Washington decisions have said that the condemnor’s judgment on these matters will be overturned only if there is “proof of actual fraud or such arbitrary and capricious conduct as would amount to constructive fraud.”

Stoebuck & Weaver, § 9.28, at 636 (quoting State v. Brannan, 85 Wn.2d 64, 68, 530 P.2d 322 (1975)). “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.” Brannan, 85 Wn.2d at 68.

f 12 Washington courts have held that personal notice of the public meeting establishing necessity is not required either by the statute or due process. Port of Edmonds v. Nw. Fur Breeders Coop., Inc., 63 Wn. App. 159, 168, 816 P.2d 1268 (1991). Personal notice is required, however, to begin the three-step condemnation proceeding. Id. (“[P]ersonal notice (and hearing) are required before a final taking of a property can occur.”). Miller does not contend that they did not receive personal notice of the condemnation proceeding.

A. Notice Adequacy

¶13 Miller challenges the notice Sound Transit provided for the public hearing at which the site selection was made. Miller asserts that the notice was inadequate and, therefore, argues that this court should vacate the legislative declaration that condemnation is necessary.

1. General requirements

¶14 Procedural errors, such as lack of proper notice, are questions of law reviewed de novo. State v. Harris, 114 Wn.2d 419, 441, 789 P.2d 60 (1990). As the challenger, Miller bears the burden of proof that the notice was defective. The trial judge found that the notice met the statutory and internal requirements and rejected the claim below. Clerk’s Papers (CP) at 252 (“There were no deficiencies in notice, and Sound Transit did hear from the appropriate participants when indicated.”).

¶15 Importantly, Miller never convincingly argues that they had no notice of this hearing. Nor does Miller raise a facial due process challenge. There is considerable evidence that Miller was involved in the site selection process for many years. Instead, Miller is essentially raising a general claim that the public had insufficient notice.

¶16 Sound Transit is obligated to give notice of public meetings where eminent domain will be discussed. RCW 81.112.080(2) (directing regional transportation entities to use the same methodology as first class cities for such procedures); RCW 35.22.288 (setting forth procedures). Specifically:

[E]very city shall establish a procedure for notifying the public of upcoming hearings and the preliminary agenda for the forthcoming council meeting. Such procedure may include, but not be limited to, written notification to the city’s official newspaper, publication of a notice in the official newspaper, posting of upcoming council meeting agendas, or such other processes as the city determines will satisfy the intent of this requirement.

RCW 35.22.288 (emphasis added). Sound Transit determined that posting meeting agendas on its own web site satisfied the intent of the statute and furnished appropriate notice to the community.³

¶17 “The purpose of notice statutes is to apprise fairly and sufficiently those who may be affected of the nature and character of an action so they may intelligently prepare for the hearing.” Nisqually Delta Ass’n v. City of DuPont, 103 Wn.2d 720, 727, 696 P.2d 1222 (1985). Courts have vacated a legislative decision that condemnation is necessary for violation of notice statutes. See Nw. Fur Breeders, 63 Wn. App. at 169.

¶18 In Northwest Fur Breeders, the local port authority sought to condemn property near a harbor. Nw. Fur Breeders, 63 Wn. App. at 161. Port districts, like regional transportation districts, are directed by statute to use the same eminent domain procedures as first class cities. Id. at 163. Notice of the public hearing where the condemnation was discussed was given to local newspapers but the notice did not include notice of the preliminary agenda of the meeting as required by statute. Id. Thus readers had no reason to expect that any condemnation would be discussed. Id. at 162. The subsequent condemnation was challenged on the basis of faulty notice. Id. at 163. The court agreed that the notice was substantially faulty and vacated the decree of public necessity. Id. at 169.

¶19 In Northwest Fur Breeders, the primary question for review was whether the statute requiring notice of the preliminary agenda for the legislative body applied to port districts. Id. at 164. Once the decision was made that the statute applied, it was clear that the statute had been violated. See RCW 35.22.288 (“[E]very city shall establish a procedure for notifying the public of.. . the preliminary agenda for the forthcoming council meeting.” (emphasis added)). Northwest Fur Breeders provides us little help in deciding whether notice of a public meeting published on a web page is an appropriate exercise of the discretion vested by statute. The Court of Appeals specifically noted that

We do not hold that notice of the preliminary agenda for meetings at which condemnation will be considered must necessarily be published in a newspaper. Rather RCW 35.22.288 requires the Port to establish a procedure for notifying the public of the preliminary agenda. There may be effective methods of providing the required notice other than publication.

Nw. Fur Breeders, 63 Wn. App. at 167 n.5. Here, the preliminary agenda was published; the question was whether Sound Transit correctly exercised the discretion vested in it by statute. Accordingly, we turn now to whether posting notice and a meeting agenda on the public agency’s web site can satisfy the statute.

2. Web posting

|20 There is very little case law on the subject of the sufficiency of web posting for notice requirements. Courts in several cases have rejected web posting as a method to apprise class members of a class action suit. See, e.g., Reab v. Elec. Arts, Inc., 214 F.R.D. 623, 631 (D. Colo. 2002). However, in such instances, the posting was not an exercise of legislative authority. Additionally, the California Court of Appeals held last year that statements on a web site “hardly could be more public.” Wilbanks v. Wolk, 121 Cal. App. 4th 883, 895, 17 Cal. Rptr. 3d 497 (2004); see also Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (1997) (“[The Web] provides relatively unlimited, low-cost capacity for communications of all kinds.”).

¶21 Miller’s argument that posting on a web site does not necessarily “furnish” notice to anyone is unfounded. Just as it is impossible to assure that anyone will look at a particular web site, it is equally impossible to assure that anyone will purchase, much less read, a newspaper. In addition, there is no way to assure that a newspaper will even publish a notice furnished by an agency because agencies are not required to buy advertising space. More important, however, is the fact that RCW 35.22.288 does not require an agency to use one of the listed methods, much less prohibit the use of the Internet. The statute explicitly states that the methods “may include, but not be limited to” those specifically listed. RCW 35.22.288. Clearly, any other method that provides comparable notice to those listed would meet the statutory requirement. Miller has not shown that publication on the Sound Transit web site failed in any way to meet the standard set forth in the statute. While precedent on this subject is sparse, posting on a public web site is at least as likely to provide the community with notice as the specifically approved notice given to a newspaper, and this was the method Sound Transit had used for years.

3. Specificity

¶22 Miller also claims that the agenda posted by Sound Transit on its web site was not specific enough to put property owners on notice. We disagree.

¶23 The agenda stated in part that the Board of Directors would consider:

Resolution No. R2003-13 — Authorizing the Executive Director to acquire, dispose, or lease certain real property interests by negotiated purchase, by condemnation, (including settlement) condemnation litigation ... to affected owners and tenants as necessary for the construction of the Lakewood and South Tacoma Commuter Rail Stations, the new Lakewood Connector railroad line to be constructed from D Street to M Street in Tacoma . . . and to execute all documents necessary to convey certain of those interests to the City of Tacoma ....

Ex. 12. The agenda was sufficient to put the public on notice that a condemnation in the area would be considered. The statute requires only that the notice be descriptive enough for a reasonable person to be fairly apprised of what was to be discussed at the meeting and notice is generally deemed adequate absent a showing that it was misleading. Dep’t of Natural Res. v. Marr, 54 Wn. App. 589, 596, 774 P.2d 1260 (1989) (citing Nisqually Delta Ass’n, 103 Wn.2d at 727). Miller cannot plausibly argue that a notice stating the intent to purchase property by condemnation would not have fairly apprised them of the meeting’s purpose. Sound Transit provided all the notice that the statute requires and Miller does not argue that due process requires more.

¶24 We affirm the trial court and hold that Sound Transit’s method of notifying the public meets the statutory standard.

B. Substantive Decision

¶25 Additionally, Miller challenges the substantive decision that the condemnation was necessary.⁴ The trial court found that Miller had not substantiated any of their challenges by a preponderance of the evidence.

¶26 As stated previously, whether the condemnation is necessary is a legislative question. Hemenway, 73 Wn.2d at 139; State ex rel. Hunter v. Superior Court, 34 Wn.2d 214, 218, 208 P.2d 866 (1949). A legislative body’s determination of necessity is conclusive unless there is proof of actual fraud or arbitrary and capricious conduct amounting to constructive fraud or the government fails to abide by the clear dictates of the law.⁵ Hemenway, 73 Wn.2d at 139. When reasonable minds can differ, courts will not disturb the legislative body’s decision that necessity exists so long as it was reached “honestly, fairly, and upon due consideration” of the facts and circumstances. Welcker, 65 Wn.2d at 684. The decision may be unwise, but it is still a decision for the legislative body to make, not this court. Miller, 61 Wn.2d at 391. Even if the decision was partially motivated by improper considerations, it will not be vacated so long as “the proposed condemnation demonstrates a genuine need and . . . the condemnor in fact intends to use the property for the avowed purpose.” In re Petition of Port of Grays Harbor, 30 Wn. App. 855, 864, 638 P.2d 633 (1982) (citing State v. Hutch, 30 Wn. App. 28, 631 P.2d 1014 (1981)).

¶27 Miller suggests that this court created a nine-part test in Deaconess Hospital v. Washington State Highway Commission, 66 Wn.2d 378, 403 P.2d 54 (1965), to determine whether the decision to condemn property was arbitrary and capricious.⁶ But in 1998, 33 years after Deaconess, this court specifically noted that “[we have] not previously enumerated factors to consider when determining whether a public use is truly necessary.” Evans, 136 Wn.2d at 823. “[S]ome relevant considerations,” however, “are the dollar contribution of the private party, the percentage of public versus private use, and whether the private use is occurring in an architectural surplus of usable space.” Id.

¶28 Deaconess provided some different considerations but made clear that as long as the “administrative agency has acted honestly, with due deliberation, within the scope of and to carry out its statutory and constitutional functions, and been neither arbitrary, nor capricious, nor unreasonable, there is nothing left for the courts to review.” Deaconess, 66 Wn.2d at 406. Again, this is rooted in our respect for the other branches of government. “A different conclusion would place the judiciary in the untenable position of substituting its judgment for that of the administrative agency contrary to a number of decisions.” Id. This court has declined to create a definitive laundry list of considerations and this case provides no reason to depart from our tradition and precedent.

¶29 Instead, since the trial judge has already weighed the evidence supporting public necessity, this court will review the record to determine only whether the factual findings are supported by substantial evidence. 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.” State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).

¶30 We turn now to the specific challenges.

1. Historical nature of the property

¶31 Miller argues that Sound Transit did not properly consider the historical nature of the property and, accordingly, its decision was arbitrary and capricious. At some point after March 2002, Miller learned that a house on the property had possible historical significance and that at least one other buyer was interested in the property. That buyer, however, was not interested in acquiring the property if it was going to be condemned. It appears that a house on the property was “built along the right-of-way by the railroad workers in the evening hours after work. They are referred to as twilight workers.” 2 VRP (Nov. 1, 2004) at 121. The Railcar Preservation Society attempted to interest Sound Transit in preserving the home as part of the transit center but, ultimately, Sound Transit declined to do so and the society turned to other projects.

¶32 The historical value of the property is questionable. After consideration, the Tacoma historic preservation office declined to nominate the house as a historic landmark. Similarly, the State Office of Archaeology and Historic Preservation found the transit project had no adverse historical impacts. While it appears Sound Transit was not initially aware of the historical significance of the house when it was originally considering various sites, it was well aware of it by the time it had decided to condemn the property.

¶33 This court has already held that it is not arbitrary and capricious to select a site with a “substantial dwelling house” on the property, even when vacant tracts are nearby. Hunter, 34 Wn.2d at 219. In this case, the evidence of the historic property was considered by Sound Transit before it decided condemnation was necessary. This was affirmed by the trial court. Miller has not established arbitrary and capricious conduct upon these facts.

2. Problems with the other sites

¶34 Miller asserts that Sound Transit was mistaken about the potential environmental problems with the various sites.⁷ At some point during the process, Sound Transit appears to have erroneously believed that the alternative sites were contaminated but that the Miller property was not. In fact, it appears that all the Tacoma sites were contaminated to some degree.

¶35 However, it is not the role of the court to take a second look at the various environmental considerations at issue. As long as Sound Transit considered the environmental impacts, it is not for the court to substitute its judgment in the absence of some demonstration of fraud or arbitrary and capricious conduct. See Brannan, 85 Wn.2d at 74-77. We note in passing that questions of public use and necessity are not subject to the State Environmental Policy Act, chapter 43.21C RCW. See generally Marino Prop. Co. v. Port of Seattle, 88 Wn.2d 822, 830-31, 567 P.2d 1125 (1977).

3. Better alternate locations

¶36 Miller contends that a nearby site would be better suited for the project and that condemnation is not necessary. But a particular condemnation is necessary as long as it appropriately facilitates a public use. Hemenway, 73 Wn.2d at 138. 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. 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. Hunter, 34 Wn.2d at 219.

¶37 This broad approach is rooted not only in our deference to other branches of government, but also to the institutional competence of courts. We have already ruled that site selection is essentially a legislative question, not a judicial one. Courts give especial deference to agency site selection decisions because courts “are not trained or equipped to pick the better route, much less design and engineer the project.” Deaconess, 66 Wn.2d at 405; accord Brannan, 85 Wn.2d at 69. Expert testimony from landscape architect Stephen Speidel, who believed another site was better suited for the transit station, is not a basis for reversing the legislative decision that condemnation was necessary.

4. Intimidation

¶38 Finally, Miller claims that one of the witnesses, William Eugene “Skip” Vaughn, was threatened by the chair of the Sound Transit board. While this was raised to the trial court, no finding of fact or conclusion of law directly addresses it. The trial court impliedly found it uncompelling by finding that Sound Transit did not act in an arbitrary and capricious fashion.

¶39 Vaughn is chair of the South Tacoma Neighborhood Council. He had been involved in the siting of the South Tacoma rail station since at least 1998 and had attended at least three public meetings concerning it. After the site selection was made, Vaughn requested reconsideration. He preferred a different site. He testified that he met with Pierce County Executive John Ladenburg and Kevin Phelps, the city of Tacoma representative on the Sound Transit board. Vaughn testified that “[t]hey indicated the decision had been made and would not discuss the reasons for it but indicated that if we made waves, we’d probably lose the station altogether.” 2 VRP (Nov. 1, 2004) at 116. He also testified that he took their comments “[k]ind of as a threat to be quiet.” Id. at 117.

¶40 We are unconvinced that Ladenburg’s and Phelps’ statements were threats.⁸ At worst, Ladenburg and Phelps appeared to believe that without community support, there would be no transit station. There is no evidence on the record that Ladenburg or Phelps intended the presence or absence of a transit station to adversely affect Vaughn.⁹

¶41 We find each of Miller’s specific challenges to be without merit. Moreover, even if we agreed with one or more of Miller’s contentions, we still might not disturb Sound Transit’s finding of necessity because of the high level of deference we accord legislative bodies in making necessity determinations. Hunter, 34 Wn.2d at 218; Port of Grays Harbor, 30 Wn. App. at 864 (holding necessity determination will not be vacated as long as “the proposed condemnation demonstrates a genuine need and . . . the condemnor in fact intends to use the property for the avowed purpose” (citing Hutch, 30 Wn. App. 28)).

IV. CONCLUSION

¶42 We hold that Sound Transit properly exercised the discretion vested in it by law when it published its meeting agenda on its web site and that Miller has not shown that the public necessity determination was the product of arbitrary and capricious conduct or actual fraud. Accordingly, we affirm the trial court on all counts.¹⁰

C. Johnson, Madsen, Bridge, and Owens, JJ., concur.

1 It appears that the property valuation stage of the condemnation proceeding has been stayed awaiting this court’s decision on whether Sound Transit has established public necessity for the condemnation.

2 Nor would such a challenge to public use likely prevail. The dissent spends several pages arguing that the determination of public “use” is a judicial inquiry requiring no deference to the agency seeking condemnation. Dissent (J.M. Johnson, J.) at 428-29. Not only do we disagree with the dissent’s characterization of the court’s role on this question, we note that it is not at issue here. First, while the determination of public use is for the courts, this court has explicitly stated that it will show great deference to legislative determinations. Hemenway, 73 Wn.2d at 139. Moreover, the condemnation of private property for public transportation is within the state’s eminent domain power and almost categorically a public use. State ex rel. Devonshire v. Superior Court, 70 Wn.2d 630, 636-37, 424 P.2d 913 (1967) (condemnation of private property for 1962 Exposition Monorail a public use (citing State ex rel. McIntosh v. Superior Court, 56 Wash. 214, 105 P. 637 (1909))). We also note that the dissent continues to conflate the terms “use” and “necessity” as it did in In re Petition of Seattle Popular Monorail Authority, 155 Wn.2d 612, 635 n.18, 121 P.3d 1166 (2005). Dissent (J.M. Johnson, J.) at 436. In the section entitled “Unsubstantiated Public Use Determination,” the dissent uses the terms “use” and “necessity” interchangeably throughout the section, claiming that both are judicial determinations. Id. Second, although Miller originally challenged whether the project was for a public use, the trial court made a specific finding that Miller did not contest the determination of public use at trial and Miller did not assign error to the court’s finding on appeal. Clerk’s Papers at 251 (Finding of Fact 27).

3 The dissent takes us to task for ignoring the notice requirements of Sound Transit’s internal procedures in our analysis. Dissent (J.M. Johnson, J.) at 432. However, the dissent does not cite any authority to support a claim that the internal procedures govern our analysis. We look to the statutory requirements to determine the adequacy of notice for condemnation. Regardless, the trial court found that Sound Transit complied with its own internal rule regarding notice of public meetings. The court determined that Sound Transit’s method of posting notice on its web site was sufficient to furnish notice to the local newspapers. VRP (Nov. 19, 2004) at 12 (“There was nothing that I heard other than the custom for years that this was generally accepted in the community and, for all I knew, generally accepted by the newspapers as well. ... I think that the ultimate conclusion is that it was an appropriate method of service to the newspapers.”). Even if we were to analyze the notice provided by Sound Transit under its internal procedures, we would still find the notice to be sufficient. Sound Transit’s internal procedures merely require the agenda to be furnished to one or more local newspapers of general circulation whenever feasible. Ex. 14, at 12.

4 As noted above, we do not review the question of whether the condemnation was for a public use because Miller conceded the point at trial. Our analysis addresses only the question of whether it was necessary to condemn this particular property.

5 The dissent makes several claims regarding the trial court’s review of the evidence, all of which misconstrue our case law regarding the court’s role in assessing necessity. First, the dissent claims that the resolution and petition did not contain “particularized facts” about public necessity. Dissent (J.M. Johnson, J.) at 439. However, at no point do either RCW 35.22.288 or RCW 8.12.060 require the resolution or petition to contain the level of detail suggested by the dissent.

Second, the dissent argues that the trial court did not require Sound Transit to make a show of substantial evidence to support its public necessity determination. Id. We reiterate that the necessity determination is deemed conclusive absent a showing by the property owner of actual fraud or arbitrary and capricious conduct amounting to constructive fraud, something Miller did not show. Seattle Popular Monorail, 155 Wn.2d at 629; Hemenway, 73 Wn.2d at 139. However, even if this were not so, Sound Transit provided extensive evidence of the reasons for its determination. Miller simply does not agree with those reasons. The fact that another choice could have been made does not tip the balance to the property owner in a review of necessity.

Third, the dissent claims that Sound Transit failed to provide rebuttal evidence to counter evidence presented by Miller. Dissent (J.M. Johnson, J.) at 439. Again, based on the test we have outlined above, an agency is not required to rebut a property owner’s evidence where the parties merely disagree on the chosen site. If the property owner has not shown actual fraud or arbitrary and capricious conduct by the agency, a court will generally let the agency’s choice stand. Welcker, 65 Wn.2d at 684-85. Even if such evidence were required, however, the record indicates that Sound Transit presented voluminous evidence supporting its site choice; the trial court was not obliged to require more.

6 Miller refers to the following passage for support:

By what tests should the court gauge administrative decisions? Here are the principal standards: Did the agency proceed in accordance with and pursuant to constitutional and statutory powers? Were the agency’s motives honest and intended to benefit the public? Were they honestly arrived at — that is, free from influence of fraud and deceit? Were they free of any purpose to oppress or injure — even though injury and damage to some may be inherent in accomplishing the particular public benefit? Did the administrative agency give notice, where notice is due, and hear evidence where hearings are indicated? Did the agency make its decision on facts and evidence? Were its actions in the last analysis rational, that is, based upon a reasonable choice supported by facts and evidence? If the answers to all of these queries are in the affirmative, then the decision of an administrator, unless placed under complete judicial review by law, cannot be held arbitrary, capricious, unreasonable or oppressive by the courts. That the courts may have reached a decision, made a choice or a conclusion different from that of the administrative agency, or taken wiser or more sensible action, does not empower them to do so.

Deaconess, 66 Wn.2d at 405-06.

7 The dissent also asserts that Sound Transit made false representations about environmental problems related to the properties under consideration. Dissent (J.M. Johnson, J.) at 438. It appears, though, that all of the properties had some environmental problems and Sound Transit simply failed to comment about the environmental issues on the Miller property. CP at 249 (Fnding of Fact 19). The dissent claims that Sound Transit relied on “clearly erroneous factual information” in making its determination and that this constituted arbitrary and capricious conduct. Dissent (J.M. Johnson, J.) at 438-39. We disagree. It is far from clear to what extent Sound Transit relied on this information in making its determination. In addition, the trial court correctly considered the possibility that this and other 'facts might have affected the outcome and ultimately concluded that Sound Transit’s determination was not unreasonable. CP at 252 (Cconclusion of Law 12).

8 Black’s Law Dictionary defines “threat” as “[a] communicated intent to inflict harm or loss on another or on another’s property, especially] one that might diminish a person’s freedom to act voluntarily or with lawful consent.” Black’s Law Dictionary 1519 (8th ed. 2004).

9 Additionally, Miller alleges that a neighbor was told he could not get building permits while Ids property was being considered for condemnation. This does not appear to be relevant.

10 Sound Transit also moves for sanctions for filing a frivolous appeal. RAP 18.9(a). We deny this motion, as there was a tenable issue of whether web posting is sufficient to meet notice requirements. Miller also moves for attorney fees under ROW 8.25.075. Given our disposition, we deny Miller’s motion.