City Of Redmond v. Union Shares Llc

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CITY OF REDMOND, a municipal )
corporation of the State of Washington, ) No. 75463-7-1
)
Respondent, ) DIVISION ONE
)
V. ) UNPUBLISHED OPINION
)
UNION SHARES, L.L.C., a Washington )
limited liability company;

Appellant,

PUGET SOUND ENERGY, INC., a
Washington corporation, on its behalf and
as successor in interest to PUGET •o.U.•
am*.
SOUND POWER & LIGHT COMPANY, a ••••••
• •

Washington corporation; CAMPBELL
'
•V
LUMBER COMPANY, a Washington
corporation; KING COUNTY, a political
subdivision of the State of Washington;
and all other persons or parties known or
unknown or unknown heirs claiming and
rights, title, estate, lien or interest in the
real estate described herein;

Defendants. ) FILED: July 31, 2017
)

APPELWICK, J. — The City condemned an easement over Union Shares'

land outside the city boundaries in order to reroute a stream. Union Shares argues

that the condemnation is not a sufficiently public use, because it benefits other

private landowners. And, it argues that the City does not have statutory authority

to condemn the land because relocation of the stream is not a park use. We affirm.
No. 75463-7-1/2

FACTS

Union Shares owns a 39 acre rural property in the city of Redmond (City).

In 2000, it sold an easement to the City for a recreational multi use trail. The trail

runs near, but not immediately next to, Evans Creek. Instead, Evans Creek

currently runs through several industrial properties near Union Shares' property.

The City seeks to move the stream from the industrial properties, and onto a

portion of Union Shares' property. This will place the Creek in proximity to the

existing trail.

The genesis of this project was a 2005 study, commissioned by the City,

regarding the stream relocation. That study's executive summary stated as

follows:

The proposed relocation routes will relocate Evans Creek further
away from the commercial and industrial sites by moving the creek
from the channelized, developed and relatively unshaded location,
onto City and privately owned property east and north of the current
creek location, accomplishing most of the WRIA [(Water Resource
Inventory Area)] 8 recommended actions. The proposed routes will
include tree and shrub plantings along the stream banks in order to
provide increased shaded length over the exiting creek location. By
moving the creek out of the industrial area and providing more
natural cover, stream temperatures will likely be reduced. Stream
enhancements along the entire length of both proposed routes,
including LWD [(Large Woody Debris)], in addition to plantings, will
help to restore riparian habitat. The channel will likely be allowed
some room for migration over most of its new length which will allow
a more natural alignment to be formed.
A senior planner from the City testified that this 2005 feasibility study was

commissioned as part of a Chinook salmon conservation plan.

In 2014, the City identified three potential alternatives. Alternative 1 was to

do nothing, and leave the stream in its current form. Alternative 2 would restore

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No. 75463-7-1/3

the stream in place. Alternative 3, the "owner participation alternative," would

relocate the stream and assist nearby owners with filling the former creek bed.

The City conducted meetings with the industrial landowners in 2013 and 2014.

The City selected the owner participation alternative as its preferred

alternative. This will involve the City coordinating with the industrial landowners to

obtain the permits necessary to fill the empty creek bed that will result from the

relocation. City planning materials acknowledged and highlighted the potential

benefits that this will have for the industrial landowners: "[T]he project has broad

support because it also benefits the industrial properties by creating the

opportunity to fill the old stream channel and consolidate industrial uses away from

the new stream channel." With the cooperation of the industrial landowners, the

City will seek to fill the former stream channel, and offset this fill by installing new

stream buffers on certain areas of their property.

The City filed a petition for condemnation of Union Shares' land, which the

trial court granted after an evidentiary hearing. Union Shares appeals.

DISCUSSION

Union Shares makes two arguments. First, it argues that the condemnation

of its land is not for a public use. Second, it argues that the project does not qualify

as a public park, and therefore the City did not have statutory authority to condemn

Union Shares' land. It also requests attorney fees.

I. Public Use

Union Shares first argues that the condemnation is not for a public use, and

therefore outside of the City's eminent domain power.

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No. 75463-7-1/4

The power of eminent domain is an inherent power of the state. State ex

rel. Wash. State Convention & Trade Ctr. v. Evans, 136 Wn.2d 811, 816,966 P.2d

1252(1998)(Convention Ctr.). This power is limited by both the Washington State

Constitution and by statute. Id. at 816-17. Article I, section 16 prohibits the State

from taking private property for private use. Id. at 817. RCW 8.04.070 requires

that a proposed condemnation be necessary for the public use. Id.

Washington courts have developed a three-part test to evaluate eminent

domain cases. Id. For a proposed condemnation to be lawful, the State must

prove that (1) the use is public; (2) the public interest requires it; and (3) the

property appropriated is necessary for that purpose. Id. Of these three

requirements, Union Shares contests only the first element, that the use is public.

A trial court's decision on public use will be reversed if the finding is not supported

by substantial evidence. City of Blaine v. Feldstein, 129 Wn.App.73, 79, 117 P.3d

1169 (2005).

Union Shares relies primarily on two key cases for its argument that the use

here is not sufficiently public. First, it relies on In re Petition of City of Seattle, 96

Wn.2d 616, 638 P.2d 549(1981)(Westlake I). Westlake I addressed the City of

Seattle's use of eminent domain in planning its Westlake mall redevelopment. Id.

at 618. The plans required Seattle to acquire all properties necessary for the

project, and transfer them to the Westlake Development Authority. Id. at 622. The

court held that Seattle did not have authority for the condemnation, because the

proposed project contemplated a predominantly private, rather than public use. Id.

at 629. The court noted that when a project's private use and public use cannot

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No. 75463-7-1/5

be separated, eminent domain is not justified. Id. at 627. And, the Supreme Court

relied on the trial court's finding that the retail aspects of the project were essential

to its functioning. Id. at 628. Thus, the private aspects of the project barred the

taking. Id. at 629. But, the court explicitly noted that "[Mere these private uses

only incidental to the public uses for which the land was condemned, a different

question would be presented."' Id. at 634.

And, that different question was presented in Convention Ctr., the second

key case that Union Shares cites on this issue. Convention Ctr. involved an effort

to expand the Washington State Convention and Trade Center (Convention

Center). Id. at 813. The Convention Center's existing exhibit space was four

stories above ground. Id. at 814. The plans called for the creation of new

exhibition space four stories above ground so that the new space would be

contiguous with the existing space. Id. Some of the resulting space below the

new addition would be developed for private retail by a private developer, Hedreen.

Id. at 814-15. The Convention Center sought condemnation of private property to

allow for the expansion. Id. at 815. The property owners challenged the

condemnation on grounds that the State was condemning property for private use,

pointing to the resulting space below the expansion to be sold for private use. See

id.

The property owners argued that Westlake I should control, and that the

condemnation was not sufficiently public in nature. Id. at 817. The Supreme Court

The Supreme Court upheld a reformulated Westlake project in a second
case, after the private aspects had been removed from the plans. See In re City
of Seattle, 104 Wn.2d 621,625, 707 P.2d 1348 (1985).

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No. 75463-7-1/6

disagreed. Id. at 818. The court noted that the Westlake I plan called for

condemnation and subsequent sale to private parties. Id. But, it distinguished the

Convention Center expansion, because the private retail aspect was an

independent, secondary use:

The independence of the two projects is evidenced by the fact that if
this court were to find for the property owners, the State could
condemn the same land for the north expansion absent Hedreen's
participation. Without the private development, the State could build
the same exhibit hall, on the same property, hovering at the fourth
story level on the same support columns. The project could go
forward without private participation in entirely the same manner,
except that three stories of vacant space would lie unused
underneath the structure. Thus, the private development in this
vacant space is a separable component of the expansion project.
Hedreen's participation is a means to an end, but it is not an end in
and of itself.

Id. at 820 (footnote omitted). Thus, the State's willingness to cooperate with

private parties to maximize the outcomes that inevitably result from the public use

did not render the use nonpublic.

Convention Ctr. controls here. The City seeks to move the stream. As

reflected by the 2005 study, the project was instigated by the City's desire to

restore Evans Creek, in large part because of the consequences for salmon runs.

The result of the City's plan will leave an abandoned creek bed on the industrial

neighbors' property. The City has agreed to coordinate with and assist these

landowners in filling that area. About eight years after the 2005 study, in 2013 and

2014, with the assistance of project consultants, the City conducted meetings with

affected industrial property owners, but not with Union Shares. The creek

relocation could, and likely would, go forward without the City assisting the

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No. 75463-7-1/7

industrial landowners. But, like in Convention Ctr., the City has elected to

maximize the outcomes from the project, here by assisting the industrial

landowners.2

Union Shares also points to portions of the record that show the City

acknowledging potential benefits to the industrial landowners, and argues that

assisting these private landowners was in fact the purpose of the project. For

example, the feasibility study notes that "Helocating the creek further away from

the current developed industrial and business sites will provide increased potential

for further development and/or redevelopment while at the same time providing the

required stream buffer areas." The city ordinance that provided for the

condemnation notes that the relocation "will also encourage economic

redevelopment of those properties currently encumbered by the stream." But, the

sources of evidence that Union Shares points to do not establish that the effects

of the relocation—potential private economic benefit—are inseparable from the

public purpose of the project. City witnesses testified that the motivation for the

project was salmon conservation and stream improvements.

2 Union Shares also cites Manufactured Housing Communities of
Washington v. State, 142 Wn.2d 347, 13 P.3d 183 (2000). There, the Supreme
Court held unconstitutional a statute that gave a right of first refusal to a mobile
home tenant when the owner seeks to sell the property. Id. at 351, 374. The court
determined that the statute resulted in solely private use. Id. at 373. Union Shares
argues that this case should control here, because the City is transferring the
encumbrances of the stream restrictions from the industrial owners' property to
Union Shares' property. But, unlike Manufactured Housing, there is an obvious
public use contemplated here: enhancement of an existing public trail. This case
is distinguishable.

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No. 75463-7-1/8

Union Shares also notes that the City conducted meetings with affected

landowners, but did not include Union Shares in those meetings. This, it claims,

shows that the true purpose of the project is private development. But, the failure

to engage Union Shares for certain aspects of the project does not establish a

private purpose. Rather, as both the trial testimony and exhibits show, the project

was, at the outset, driven by environmental concerns such as stream habitat. That

the City engaged certain affected landowners some eight years later to discuss

planning and impacts, without Union Shares, does not establish a private purpose.

The following exchange, during the cross-examination of City of Redmond

Engineer Michael Haley, encapsulates the City's relationship with the industrial

landowners:

Q: In fact, haven't the industrial property owners already signed
permit applications?

A: Yes.

Q: For that purpose that we just discussed?

A: For our -- yes.

Q: For the over-all permitting, which includes -- for the over-all
permitting which includes the fill of the old channel?

A: Yes.

THE COURT: Have they signed permits or have they agreed to do
the buffering that you proposed, that green buffering?

THE WITNESS: In concept, yes.

Q: That is part of the owner participation alternative that they are
agreeing to?

A: Yes.

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No. 75463-7-1/9

Q: Now, after those overall permits would be granted, then as things
move forward [and]the industrial property owners want to redevelop,
then they would come to the City to obtain a City permit for filling in
the channel; is that right?

A: That is our proposal, yes.

Q: Then they would have to pay for filling the channel after obtaining
the City permits?

A: The expense of that, yes.

Q: The concept of the owner participation preferred alternative is that
the City is going to obtain State, Federal and County permits,
potentially, for filling in the old channel?

A: Correct.

THE COURT: What I am getting from this, folks, is that it is
something that the City wants, it is something that the City is trying
to on [sic] organize as part of the planning for this project but it is not
necessary to this project.

That is what I am getting out of the overall.

MR. KLINGE: It is part of the project, because they have the
property owners have signed [the] permit application.

THE COURT: Agreed.

That is clearly what the City is intending, at least from Mr.
Haley they will go forward of [sic] Evans Creek relocation, whether
or not they get these folks to go through on the agreement to get the
permits and do the fill.

THE WITNESS: Is that a question to me?

THE COURT: Yes. Am I right?

THE WITNESS: Yes, that is true.[3]

3 The trial court also noted that it was not convinced that the fill of the
industrial property would even be a benefit to the industrial landowners:"There will
be a private benefit, it seems. Although, I will tell you, frankly, I question who is
benefiting mostfrom what the industrial parties in this case are being asked to do."

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No. 75463-7-1/10

In its planning process, the City engaged nearby landowners and offered to

assist them in mitigating the effects of the project. And, the City acknowledged

that, "[i]n doing so," the project might result in economic benefit for those

landowners. But, Redmond's engagement with and support of private

stakeholders that are affected by the public project does not render this project a

non public use. Union Shares has not established that the private benefits were

not inseparable from the public purpose of the project.

Substantial evidence supports the trial court's finding that the City's

condemnation of Union Shares' land was for public use.

Statutory Authority to Condemn Outside City Limits

Union Shares also contends that the stream relocation here does not qualify

as a public park. Therefore, the City does not have the statutory authority to

condemn its land, outside the Redmond city limits.

The power of eminent domain is an inherent power of the state. City of

Tacoma v. Welcker,65 Wn.2d 677,683, 399 P.2d 330(1965). A municipality may

exercise this power only when it is expressly so authorized by the state legislature.

Id. Although courts generally construe grants of municipal authority liberally, we

generally employ a narrow construction to municipal exercises of the eminent

domain power. City of Tacoma v. Taxpayers of City of Tacoma, 108 Wn.2d 679,

694 n.8, 743 P.2d 793(1987). Similarly, courts strictly construe the delegation of

eminent domain powers. See Westlake!,96 Wn.2d at 631. Statutory construction

is a question of law, which courts review de novo. Landmark Dev., Inc. v. City of

Roy, 138 Wn.2d 561, 569, 980 P.2d 1234 (1999).

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No. 75463-7-1/11

RCW 8.12.030 lists a number of purposes for which a city may condemn

land within city limits. It also lists certain purposes for which a city may condemn

land "within or without" a city's limits. Id. Public parks is one of the purposes for

which a city may condemn land outside city limits. Id.

In 2000, the City purchased an easement from Union Shares for

construction of a recreational trail through its property. But, the multipurpose trail

is not located immediately next to the Creek. As a senior engineer from the City

testified, the planned relocation of the Creek closer to the trail will give the stream

at least 100 feet of total buffer width, which will allow for habitat and add a flood

plain. He also testified that it will move the Creek further from industrial properties

that contaminate the Creek. The City believes that moving the Creek closer to the

trail will add a passive recreation element to trail users, allowing them to observe

and experience the habitat created by the new channel.

Union Shares argues that these plans do not amount to a public park. It

notes that the plans will not open up any additional area to recreation, and instead

will merely add passive features to the existing trails, which it argues should be

insufficient. Effectively, it asks this court to find that stream relocation for habitat

improvement near an existing multipurpose trail does not qualify as a public park.

The trial court viewed the evidence as supportive of a park use:

Because what is proposed here in terms of the condemnation action
is a link-up between an existing area through which the stream flows,
which is Martin Park, and its continuation along a recreational trail,
which looks darn park-like to this court by any modern definition,
which is to be planted in a way that may be even more park-like with
a hundred foot buffer on either side to provide that the users of this
trail will essentially be in a park-like environment able to overlook the

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No. 75463-7-1/12

stream and see the other things that are attracted by a protected
stream, like fish and local wildlife and native vegetation.

Few cases have addressed what is and is not a public park under RCW

8.12.030. But, in In re Condemnation of Property for Improvement of Discovery

Trail, 119 Wn. App. 628, 634-35, 82 P.3d 259 (2004), the court addressed a

comparable scenario. Long Beach filed suit to condemn land outside of the city to

build a multipurpose trail. Id. at 630. The court held that the trail "falls within the

statutory definition of 'park' because the City is constructing and maintaining the

Discovery trail for aesthetic and recreational purposes." Id. at 634. It also cited

Webster's Third New International Dictionary's definition of "park" as "'a tract of

land maintained by a city or town as a place of beauty or of public recreation.'" Id.

(quoting WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH

LANGUAGE 1642 (1969)). It noted that the trail will allow users to "enjoy views of

the dunes, the beach, and the ocean as they move along the trail or stop to gaze."

Id. at 635; see also Blaine, 129 Wash. App. at 78 (holding that condemnation for

a boardwalk was for a statutorily authorized public use, in part because a

"boardwalk is like a park, as it allows the public to access scenic views").

The park elements here parallel those in Discovery Trail.4 Redmond is

relocating the Creek to improve salmon habitat, and to enhance the experience of

trail users. By moving the Creek and riparian habitat closer to the trail, the users

will have greater opportunities to observe and experience the natural surroundings.

4 The Discovery Trail court applied a liberal construction in its statutory
analysis. Id. at 635. Union Shares argues that this was erroneous. But, we need
not address this argument, because we hold that adding riparian habitat and
wildlife viewing opportunities to the trail is a public park usage under either a
narrow or liberal construction of the statute.

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No. 75463-7-1/13

The trial court correctly concluded the proposed use was a park use. In accordance

with Long Beach and Blaine, we hold that the condemnation is within the City's

RCW 8.12.030 authority to condemn land outside of the city limits for a public

park.5

We affirm.

WE CONCUR:

1-seAtikfzy, Acl%

Union Shares requests attorney fees under RCW 8.25.075(1)(a), which
5
states that a condemnee is entitled to attorney fees if the condemnee successfully
defeats a condemnation action. But, because we rule in favor of the City, Union
Shares is not entitled to attorney fees.

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