City Of Bellevue v. Best Buy Stores

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CITY OF BELLEVUE, a municipal
corporation, DIVISION ONE

Respondent, No. 70855-4-I
(Consol. with No. 70856-2-I)

BEST BUY STORES, LP, a Virginia UNPUBLISHED OPINION
limited partnership,
o

Appellant,
—'—I
rn
-D o
HD DEVELOPMENT OF MARYLAND, o-n

INC., a Maryland corporation; 457 120th «^TH—
>T)pri
AVENUE NE, LLC, a Delaware limited WPIn
5:>
liability company; HOME DEPOT USA,
«X>
INC., a Delaware corporation;
o-
THRIVENT FINANCIAL FOR cn z<-
LUTHERANS, a Wisconsin corporation;
PUGET SOUND ENERGY, INC., a
Washington corporation; KING
COUNTY; and DOES 1-10,

Defendants. FILED: April 21, 2014

Dwyer, J. —

Although the courts may well determine from the evidence
whether a project is for the public benefit, convenience or
necessity, they are not trained or equipped to pick the better route,
much less design and engineer the project. Thus, the rule that
leaves these decisions to the administrative agencies is a sensible
one consistent with the idea that the public's business be carried
out with reasonable efficiency and dispatch by those possessing
the superior talents to accomplish the public purposes.[1]

Deaconess Hosp. v. Highway Comm'n, 66 Wn.2d 378, 405, 403 P.2d 54 (1965).
No. 70855-4-1 (Consol. with No. 70856-2-l)/2

In this case, the City of Bellevue brought a condemnation action over two

parcels of land in order to extend NE 4th Street from its current terminus at 116th

Avenue NE to a new terminus at 120th Avenue NE. The proposed design calls

for a five-lane road. Best Buy Stores, LP (Best Buy), the current lessor of one of

the parcels, opposes the condemnation action, contending that the to-be-

condemned property is not necessary to fulfill a public use. Specifically, Best

Buy contends that a five-lane road is not necessary and that a four-lane road

would suffice.

Best Buy fails to demonstrate that Bellevue's determination of public

necessity was arbitrary and capricious such that it amounted to constructive
fraud. Because it is not our role to second-guess Bellevue's choice of road

design, we affirm.

I

The property at issue in this dispute is located at 457 120th Avenue NE in
Bellevue. The property is owned by 457 120th Avenue NE, LLC (Landlord) and
leased by Best Buy. Best Buy operates a retail store at that location.
Immediately to the south is a parcel of land owned by HD Development of
Maryland, Inc. (Home Depot), and occupied by a Home Depot retail store.
In 2008, Bellevue began planning for an extension of NE 4th Street from

its current terminus at 116th Avenue NE to a new terminus at 120th Avenue NE.

The road extension was part of a broader project known as the Mobility and
Infrastructure (M&l) Initiative, which "was formed to address recent growth and
planned development in the Downtown Bellevue, Bel-Red, and Wilburton areas."
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Bellevue believed that the NE 4th Street extension would "provide an alternate to

and relieve congestion at key intersections including NE 8th Street at 112th

Avenue NE and NE 8th Street at 116th Avenue NE," and that it would "enhance

travel time and mobility options."

The idea of extending NE 4th Street was not a new one. Previously, in

2006, KG Investments2 had approached Bellevue about support for its

development plans. KG Investments requested that Bellevue commit to

condemning property for an extension of NE 4th Street through the properties

occupied by Best Buy and Home Depot. As part of its request, KG Investments

offered to fund the project. However, Bellevue declined KG Investments' offer.

From 2008 to 2012, the city council "reviewed considerable community

input and undertook substantial community involvement" in relation to the M&l
Initiative. Specifically, the city council "conducted three 'Open Houses' in 2010,"
had "multiple meetings with property owners and tenants," and discussed the

M&l Initiative at 28 open public meetings.

The city council initially reviewed seven alternative designs for the NE 4th

Street extension. Two designs were rejected because of their substantial

impacts on Best Buy. After choosing one of the seven designs, the city council
further considered three distinct modifications to that design. Ultimately, in April

2010, the city council selected a five-lane design that would require the
demolition of 10,000 square feet of the Best Buy retail store. This design was

2Per the declaration of Melissa Moseley, Best Buy's former directorof real estate, KG
Investments owns the Landlord's interest in the 457 120th Avenue NE property.

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selected because

it impacted the least number of parcels, allowed for the ability to
modify the existing structure for continued retail use, was the least
overall cost compared to other alternatives considered at the time,
was compatible with the Wilburton Village land use vision, and the
community preferred the location where NE 4th would intersect with
120th Avenue NE.

Unsurprisingly, Best Buy objected to the probable demolition of a part of

its store. Best Buy wrote seven letters and met with Bellevue representatives on

20 separate occasions since 2010, voicing its objections. On March 5, 2012,

counsel for Best Buy wrote a letter to Bellevue stating, "Under no circumstances

will Best Buy consent to the taking of its property for an unnecessary road lane."

Best Buy's legal challenges to the proposed condemnation demonstrate the

seriousness of its commitment to this statement. According to the declaration of

Assistant City Attorney Monica Buck, Best Buy has "[ajppealed the action ofthe
City Council authorizing execution of a consultant agreement to complete final
design and proposed plans," "[ajppealed the City's threshold determination
issued under the State Environmental Policy Act" to Bellevue's hearing examiner,

"[fjiled a Request for Reconsideration of the Hearing Examiner's decision on the

SEPA Appeal," "[fjiled with the King County Superior Court an appeal of the
Hearing Examiner's decision under the Land Use Petition Act," "[fjiled an appeal
of the Critical Areas Land Use Permit ("CALUP Appeal") issued by the

Development Services Director for the NE 4th Street Extension Project" to the

hearing examiner, and "[fjiled with the Hearing Examiner a Request for
Reconsideration of the decision on the CALUP Appeal," all in addition to this

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appeal. Meanwhile, Best Buy was aware that Bellevue had obtained grant

funding that would be jeopardized should Bellevue not begin the project by a

certain date.

On February 13, 2012, Ron Kessack, Bellevue Assistant Director of

Capital Program Services, discussed a possible alternative four-lane road design

with the city council. Kessack informed the council that the proposed design

"would eliminate one of the westbound lanes up to the point just past Best Buy."

Kessack stated that "right now we're looking at it and saying, you know, it's likely

we don't [need the second westbound lane]. We do . . . want to run numbers on

it and make sure and proof it out." One of the council members asked Kessack,

"We're going to have more functionality if we have two westbound lanes, wouldn't
we?" to which Kessack responded, "There's more wiggle room certainly."

In April 2012, counsel for Bellevue corresponded with Best Buy regarding
a possible agreement between the parties. The proposed agreement

incorporated a four-lane design similar to the one previously discussed by

Kessack. The four-lane design narrowed the proposed road from 57 feet 3

inches to 42 feet 3 inches, and preserved an additional 2,000 square feet of the

Best Buy retail store. However, because compensation for condemnation would
be payable to the owner ofthe property, the Landlord needed to approve the
agreement as well. Best Buy never obtained the Landlord's approval. The city
council thus proceeded with the five-lane design it had previously adopted.
On February 4, 2013, the city council passed Ordinance No. 6098,

authorizing the condemnation of property necessary for the NE 4th Street

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extension. Therein, the council declared that it "finds construction of the Project

to be a public use" and "specifically finds construction of the Project to be

necessary, and in the best interests of the citizens." The ordinance also included

legal descriptions of the property (hereinafter "take property") to be condemned

for the project.

On April 29, 2013, Bellevue filed a petition in eminent domain to condemn

the portion of the take property owned by Home Depot. Best Buy was named as

a party to this action due to a sewer easement and a maintenance agreement it
has with Home Depot. On May 6, Bellevue filed a petition in eminent domain to

condemn the portion of the take property owned by the Landlord. The parties
moved to consolidate the petitions for the purpose of a hearing on public use and

necessity, which the trial court granted.

On July 23, 2013, Bellevue moved for an order adjudicating public use
and necessity. Only Best Buy opposed the motion. Best Buy moved to present
live testimony at the hearing. The trial court denied the motion, ruling that Best
Buy presented no issues that might necessitate or benefit from live testimony.
At the hearing, Best Buy contended that a fifth lane was not necessary

because four lanes would suffice. Best Buy also argued that Bellevue's decision

to build a five-lane road was motivated by a desire to oust Best Buy from the

land, and was done in collusion with the Landlord.

The trial court rejected all of Best Buy's arguments. On August 7, 2013,
the trial court issued its findings offact and conclusions of law. Therein, the trial

court decreed:

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1. The land, improvements, and property rights described as
the Take Property in these Petitions in Eminent Domain will be
taken for the public use of public street improvements for the NE 4th
Street Extension Project, as more specifically described in Finding
of Fact No. 5.
2. The Take Property as described in these Petitions in
Eminent Domain is necessary for the implementation of the public
use of the NE 4th Street Extension Project.

The trial court also issued a supplemental order explaining its reasoning.

With respect to the issue of public use, the trial court stated, "It is beyond dispute

that the use to which the property is to be put (as a public thoroughfare) is a

public use." With respect to the issue of public necessity, the trial court had four

responses to Best Buy's contentions:

First, for these purposes, necessity is not limited to present
necessity; rather, the legislative body properly looks to future
needs. Tacoma v. Welcker, 65 Wn.2d 677, 684, 399 P.2d 330
(1965).
Second, "the City" has decidedly not made a determination
that 5 lanes were not necessary. To the contrary, the City Council
has determined that they were. There has been ongoing
discussion - both before and after that determination - of how other
potential options might be developed and, in connection with this,
cityemployees have expressed an openness to that proposition.
However, the Council made its "intuitive" determination - and stuck
with it - that it preferred the "more functionality" provided by the
greater width.
Third, and most importantly, regardless of what disputes
may now or in the future exist between Best Buy and its landlord,
the property owner, it remains entirely speculative to suggest that
the Bellevue City Council was either acting with an improper motive
or utilizing improper means. This speculation is lacking in
evidentiary support and the contention has not been established.
Finally, it should be noted that "[ejven ifthe decision was
partially motivated by improper considerations, itwill not be vacated
so long as 'the proposed condemnation demonstrates a genuine
No. 70855-4-1 (Consol. with No. 70856-2-l)/8

need and ... the condemnor in fact intends to use the property for
the avowed purpose.'" RTA v. Miller, supra, at 418.[3]

Best Buy filed a motion for reconsideration, which the trial court denied.4

Best Buy appeals.

II

Best Buy contends that the trial court erred by holding that Bellevue's

proposed condemnation was a public necessity.5 This is so, Best Buy asserts,

because a five-lane road is not "necessary" when a four-lane road would be

viable. Best Buy misconstrues the meaning of the word "necessary" in the

context of a condemnation decision.

In order to condemn a piece of property, a municipality must demonstrate

that "(1) the use is really public, (2) the public interest requires it, and (3) the
property appropriated is necessary for that purpose." HTK Mqmt.. LLC v. Seattle
Popular Monorail Auth., 155 Wn.2d 612, 629, 121 P.3d 1166 (2005) (citing State

ex rel. Wash. State Convention & Trade Ctr. v. Evans, 136 Wn.2d 811, 817, 966

P.2d 1252 (1998)). "The latter two findings are generally subsumed under the
definition of 'necessity.'" In re Petition of City of Seattle, 104 Wn.2d 621, 623,

3 Cent. Puqet Sound Req'l Transit Auth. v. Miller, 156 Wn.2d 403, 418, 128 P.3d 588
(2006).
4 The trial court made two minor clarifications to its findings of fact, one to reflect that
Best Buy had filed a Land Use Petition Act (chapter 36.70C RCW) appeal and oneto change the
word "proposed" to "advocated" in paragraph 12. Neither change affected the trial court's
decision.
5Although Best Buy assigns error to the trial court's determination that Bellevue's
condemnation action is for a public use, its entire argumentis dedicated to the issue of public
necessity. Assignments oferror that are not supported by argument are deemed waived.
Kadoranian v. Bellinaham Police Dep't. 119 Wn.2d 178, 191, 829 P.2d 1061 (1992). Moreover,
numerous cases hold that a public street constitutes a public use. Brazil v. City ofAuburn, 93
Wn.2d 484, 487, 610 P.2d 909 (1980); State ex rel. Flick v. Superior Court for Chelan County,
144 Wash. 124, 130, 257 P. 231 (1927); State ex rel. Schroeder v. Superior Court ofAdams
County. 29 Wash. 1, 4-5, 69 P. 366 (1902).

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707 P.2d 1348 (1985).

"Whether condemnation is necessary is largely a question for the

legislative body of the jurisdiction or government agency seeking condemnation."

Cent. Puget Sound Req'l Transit Auth. v. Miller, 156 Wn.2d 403, 411, 128 P.3d

588 (2006). "A declaration of necessity by a proper municipal authority is

conclusive in the absence of actual fraud or arbitrary and capricious conduct, as

would constitute constructive fraud." HTK Mqmt., 155 Wn.2d at 629 (citing City

of Pes Moines v. Hemenwav, 73 Wn.2d 130, 139, 437 P.2d 171 (1968)).

Bellevue determined that condemning the take property is "necessary and

in the best interest of the public that interests in the land and property hereinafter

described be condemned, appropriated, and taken for public use." That

determination is conclusive unless Best Buy can demonstrate actual fraud or

arbitrary and capricious action amounting to constructive fraud. This it has not

done.

"Necessary" in the context of condemnation does not mean absolute

necessity.

The word 'necessary,' as used in connection with eminent
domain statutes, means reasonable necessity under the
circumstances. State ex rel. Lanqe v. Superior Court, 61 Wn.2d
153, 377 P.2d 425 (1963). It does not mean immediate, absolute,
or indispensible need, but rather considers the right of the public to
expect or demand that certain services be provided. City of
Tacoma v. Welcker. 65 Wn.2d 677, 399 P.2d 330 (1965).

Hemenwav, 73 Wn.2d at 140. Although a four-lane road may be feasible, we

cannot conclude therefrom that a five-lane road is not necessary. Rather, when

two options are both feasible, it is within the city council's discretion to determine
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which option to pursue. "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."

Miller, 156 Wn.2d at 417-18 (quoting Welcker, 65 Wn.2d at 684).

The record here adequately demonstrates that Bellevue decided upon a

five-lane road honestly, fairly, and after due consideration of the facts. Bellevue

considered 10 different designs before deciding on the one it adopted. It also

conducted three open houses and discussed the proposed project at 28 public

meetings. Bellevue was mindful of Best Buy's concerns, as demonstrated by its

numerous meetings with Best Buy, its rejection of two designs that would

substantially impactthe store, and its willingness to negotiate a settlement.

Bellevue's stated reasons for selecting the proposed design also demonstrate

that it duly considered the interests of the city, the public, and the land's

occupants before reaching its decision.

Because Bellevue reached its decision honestly, fairly, and upon due

consideration, the trial court did not err by entering the order on public use

and necessity.6

6 In addition to the trial court's conclusions of law, Best Buy challenges findings of fact 9,
10, 11, 12, 14, and 15. With respect to finding offact 15, Best Buy contends that this finding is
invalid because it is based on a "factually incorrect" and inadmissible declaration. We use the
substantial evidence standard when reviewing challenged findings of fact:
An appellate court reviews a trial court'sfindings offact for substantial evidence
in support ofthe findings. In re Marriage ofSchweitzer, 132 Wn.2d 318, 329,
937 P.2d 1062 (1997). Evidence is substantial if it is sufficient to persuade a fair-
minded, rational person of the declared premise. Bering v. SHARE, 106Wn.2d
212, 220, 721 P.2d 918 (1986). Areviewing court may notdisturb findings offact
supported by substantial evidence even if there is conflicting evidence. In re
Marriage of Lutz. 74 Wn. App. 356, 370, 873 P.2d 566 (1994).

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Nevertheless, Best Buy contends that Bellevue's condemnation decision

should be overturned because it was arbitrary and capricious such that it

amounts to constructive fraud. This is so, it asserts, because Bellevue made its

decision in collusion with the Landlord and to benefit the Landlord. Best Buy's

contention is not supported by the record.

"Fraud or constructive fraud would occur if the public use was merely a

pretext to effectuate a private use on the condemned lands." Evans, 136 Wn.2d

at 823. Although a private individual may derive some benefit from a

condemnation action, it would be improper for us to automatically conclude that

the condemnation is being done to effectuate a private use. Town of Steilacoom

v. Thompson, 69 Wn.2d 705, 709, 419 P.2d 989 (1966). That private individuals

will benefit from condemnation actions is to be expected, especially when the

condemnation is for a public roadway. Petition of City of Bellevue, 62 Wn.2d

458, 459-60, 383 P.2d 286 (1963).

Merriman v. Cokelev. 168 Wn.2d 627, 631, 230 P.3d 162 (2010).
Finding of fact 15 states that "Best Buy representatives have indicated on multiple
occasions that Best Buy will appeal all permit decisions and approvals necessary to construct the
Project in order to delay the Project, including the potential loss ofgrantfunding." This finding is
supported by substantial evidence. Best Buy has filed multiple administrative appeals and
superior courtactions in connections with the NE 4th Street Extension Project. Best Buy was
aware that Bellevue had grants with expiration dates, which could lapse while appeals were
pending. Best Buy has also told Bellevue that itwould notagree to the proposed condemnation
under any circumstances. From these facts, a rational person could conclude that Best Buy
intended to delay the project.
Best Buy further contends that findings of fact 9, 10, 11, 12, and 14 are invalid because
the trial court could not make these findings while its State Environmental Policy Act (chapter
43.21C RCW) (SEPA) petition was still pending. However, "questions of public use and necessity
are not subject to the State Environmental Policy Act." Miller, 156 Wn.2d at 421. The outcome of
Best Buy's SEPA petition is thus irrelevant to the trial court's findings. Best Buy's challenges to
the trial court's findings of fact are without merit.

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Instead, factors that Washington courts have previously considered in

determining whether a condemnation is pretextual 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."7 Evans, 136
Wn.2d at 823. Here, Best Buy did not prove any facts indicating that Bellevue's

condemnation was pretextual. Although in 2006 KG Investments offered to pay

for a condemnation of the property occupied by Best Buy, Bellevue declined the

offer. In fact, nothing in the record demonstrates that Bellevue accepted any

private funds for the roadway project. Additionally, the use ofthe property will be
completely public. The fifth lane will not differ in its public usage from the other
four lanes—Best Buy could not seriously argue to the contrary.

Bellevue's consideration of a potential redevelopment of the land now

occupied by Best Buy similarly does not demonstrate pretext. As the trial court
held, "the legislative body properly looks to future needs." Our Supreme Court
has previously upheld condemnation projects based solely on future needs. For
instance, the Supreme Court upheld a condemnation by the City ofTacoma for
the purpose of protecting a source of drinking water from pollution, even though
the source was not then polluted. Welcker, 65 Wn.2d at 685-86. As the court

held,

The fact that the water now being supplied by the city is
potable and does not exceed tolerable contamination levels, or that
such contamination as presently exists cannot be traced to the

7No single factor is dispositive. As our Supreme Court has previously held, "private
funding of a public project does not necessarily corrupt the public nature of that project." Evans,
136Wn.2dat819.

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usage of the lands here involved, in nowise detracts from the
wisdom or present necessity of providing reasonable safeguards
against a reasonably realistic and foreseeable future danger of
contamination. A 'stitch in time' has never been considered
capricious.

Welcker, 65 Wn.2d at 686 (emphasis added).

Future redevelopment of the area surrounding the proposed project is a

realistic and foreseeable possibility, even if no redevelopment plans are currently

in place. Redevelopment is a common occurrence in urban areas. It is
reasonable for city residents to desire or expect that Bellevue should plan with
the possibility of redevelopment in mind. It would be short-sighted, if not
unreasonable, for Bellevue to assume that Best Buy will remain on the land

permanently.

Best Buy further relies on King County v. Theilman, 59 Wn.2d 586, 369
P.2d 503 (1962), for its assertion that Bellevue's condemnation is pretextual.
However, Theilman isfactually inapposite. In that case, the president ofa
development company wished to build a straight road connecting a subdivision
owned by the company to a nearby highway. Theilman, 59 Wn.2d at 589. The
development company possessed the land necessary to build a curved road
connecting the subdivision to the highway, but the company could not build a
straight road without crossing over property owned by Theilman. Theilman, 59
Wn.2d at 589. Unable to purchase the property from Theilman, the president of
the development company turned to county authorities and "'requested that we
assist him in this acquisition because he was unable to reasonably negotiate with
Mr. Theilman for this property.'" Theilman, 59 Wn.2d at 590. The county then

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sought to condemn the property. Theilman, 59 Wn.2d at 591-92. The trial court

found that the condemnation was not necessary, but entered an order approving

the condemnation act based solely on public use. Theilman, 59 Wn.2d at 591-

92.

The court in Theilman called the facts in the case "bizarre, if not unique."

59 Wn.2d at 595. First, the court held that a trial court could not enter an order

on public use without also addressing the question of public necessity, as the two

were inextricably linked. Theilman, 59 Wn.2d at 594. Second, the court agreed
with the trial court's conclusion that the condemnation was not necessary. The

condemnation, the court stated, was "the county's in name only." Theilman. 59

Wn.2d at 596. This was so, the court held, because the actual "effect of this

action is to allow a private party to do indirectly that which the law prevents him

from doing directly." Theilman, 59 Wn.2d at 596.
The record here does not support a conclusion that Bellevue's proposed

condemnation has the practical effect of allowing the Landlord to pursue a course

of action it is not otherwise lawfully able to pursue. The NE 4th Street extension

is part of a comprehensive roadway improvement plan. The entire project will
affect numerous parcels of land, notjust the one occupied by Best Buy. The
practical effect of the project will be to increase the capacity of public roadways in
this portion of Bellevue. Although the Landlord might incidentally benefit from the
extension of NE 4th Street, incidental benefits are to be expected from such a

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project.8 City of Bellevue, 62 Wn.2d at 459-60. Any incidental benefit would not,

and could not, change the practical effect of a condemnation.

Best Buy fails to demonstrate any sort of pretext in Bellevue's proposed

condemnation action. As the trial court accurately held, "it remains entirely

speculative to suggest that the Bellevue City Council was either acting with an

improper motive or utilizing improper means." Best Buy thus fails to prove that

Bellevue's condemnation decision was arbitrary and capricious such that it

amounted to constructive fraud. The trial court did not err by deferring to

Bellevue's determination of public necessity.

IV

Best Buy further contends that the trial court erred by not requiring a more

detailed description of the take property in Bellevue's ordinance and petition.

This is so, it asserts, because the current description does not provide for

accommodation to Best Buy for the continuation of its business. To the contrary,

Bellevue's ordinance and petition reasonably describe the take property.

Bellevue did not need to describe every detail of its planned condemnation

in the ordinance and petition.

[Pjroperty sought to be condemned should be described with

8 Even if Bellevue had considered the potential benefit to the Landlord in reaching its
decision, its determination of public necessity would still be entitled to deference. "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.'" Miller, 156 Wn.2d at 418 (alteration in original)
(quoting In re Petition ofPort of Grays Harbor, 30 Wn. App. 855, 864, 638 P.2d 633 (1982)). As
previously stated, Bellevue has demonstrated the public necessity for the NE 4th Street
extension. Additionally, there is no indication that the take property will be used for anything
other than a public road. Thus, even had Bellevue considered the potential benefit to the
Landlord, we would still defer to the city council's determination of public necessity.

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"reasonable certainty." It is not necessary that the [municipality]
outline in definite detail the entire plan of operation by which it
proposes to conduct the business of the system acquired. To do so
would, in many cases, be impractical, and in others impossible. All
that is necessary is that the general plant or system be specified
and described with reasonable certainty.

State ex rel. Wash. Water Power Co. v. Superior Court for Grant County, 8

Wn.2d 122, 127-28, 111 P.2d 577 (1941) (citation omitted). Here, Bellevue

provided a legal description of the property to be taken. This was sufficient to

describe the take property with reasonable certainty. Best Buy does not cite to

any authority to the contrary.

Contrary to Best Buy's assertion, Bellevue's description of the take

property did not need to include accommodations for Best Buy. Best Buy, in fact,
has no right to demand accommodations from Bellevue. "[Ojnce the taking is
complete, payment of just compensation is the only sufficient and suitable
remedy."9 London v. City of Seattle, 93 Wn.2d 657, 665, 611 P.2d 781 (1980).
The provisions Best Buy requests to appear in the ordinance and petition are not
mandated by law, and the trial court did not err by denying Best Buy's request.
V

Finally, Best Buy contends that the trial court erred by denying its motion
for live testimony. This is so, it asserts, because there was an open question as
to whether the fifth lane was publicly necessary. We disagree.

9Additionally, any reduction in sales revenue is not a "taking" such that Best Buy would
be entitled to compensation. Northlake Marine Works. Inc. v. City of Seattle, 70 Wn. App. 491,
511, 857 P.2d 283 (1993).

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The determination of whether live testimony is required for an adjudication

of public use and necessity is within the discretion of the trial court. City of Blaine

v. Feldstein, 129 Wn. App. 73, 77, 117 P.3d 1169 (2005). "If there are no

relevant factual disputes or credibility issues and the record is sufficient to fully

inform the court, the case may be properly resolved without a testimonial

hearing." Feldstein, 129 Wn. App. at 76.

Here, the trial court determined that there were no issues that

necessitated or would benefit from live testimony. The relevant facts were not in

dispute. Neither party challenged the credibility ofthe witnesses. The parties
provided the trial court with ample briefing, a substantial number of exhibits, and
sworn affidavits from both lay and expert witnesses. This was sufficient for the

trial court to render a fair opinion on public use and necessity.

The trial court did not err by denying Best Buy's motion for live testimony.

Affirmed.

We concur:

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