Cowlitz County v. Martin

177 P.3d 102, 142 Wash. App. 860
CourtCourt of Appeals of Washington
DecidedJanuary 29, 2008
DocketNo. 34943-4-II
StatusPublished
Cited by5 cases

This text of 177 P.3d 102 (Cowlitz County v. Martin) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cowlitz County v. Martin, 177 P.3d 102, 142 Wash. App. 860 (Wash. Ct. App. 2008).

Opinion

[862]*862¶1 — Cowlitz County (County) filed a petition for condemnation to acquire an expanded easement over L. Carlyle and Linda Martin’s property in order to replace the existing culvert for Baxter Creek at Coyote Lane. The trial court granted the petition, and the Martins appealed. Because the petition for condemnation contained no lawful basis, we reverse the trial court’s order granting the petition.

Penoyar, J.

FACTS

¶2 Sometime in early 2002, the County decided to replace a culvert located where Baxter Creek intersects Coyote Lane.1 The County applied for a grant of approximately $447,000 from the Salmon Recovery Fund2 for this project. The Salmon Recovery Funding Board approved the grant in April 2002. County engineering manager Ryan Lapossa explained that the County wished to replace the Baxter Creek culvert solely because it posed an impediment to fish passage.

¶3 At the time of the grant, the County held an easement for the existing culvert, but the replacement culvert required a larger easement. Beginning in April 2005, the County began making offers to enlarge its existing easement through voluntary purchase and sale, but the parties did not reach an agreement.

¶4 On October 18, 2005, the Cowlitz County Board of Commissioners passed Resolution No. 05-152, authorizing the county prosecuting attorney to file a petition for condemnation of the larger easement. The resolution stated that “the Baxter Creek Culvert Replacement Project is necessary to remove and replace the existing culvert that has been identified as a barrier to fish passage and the Salmon Recovery Funding Board has awarded a grant for the project.” Clerk’s Papers (CP) at 32. The resolution also [863]*863stated, “the Board finds that the property rights to be acquired are necessary to accommodate replacement of the Baxter Creek Culvert and reconstruction of Coyote Lane and constitute a public use of such property.” CP at 32. Shortly thereafter, the County filed the petition for condemnation with the Cowlitz County Superior Court.

¶5 The petition seeking condemnation filed by the County’s prosecuting attorney alleged an additional reason for condemnation. The petition stated that condemnation was necessary to replace the existing Baxter Creek culvert because (1) “[t]he existing culvert acts as a barrier to fish passage” and (2) the existing culvert “is not adequate to handle stream flows under a 100-year design storm.” CP at 1 (emphasis added). This was the first mention of the County’s need to replace the culvert to handle storm stream flows.

¶6 In response to the County’s petition, the Martins filed a motion to dismiss. The Martins’ motion to dismiss argued, in part, that the trial court lacked subject matter jurisdiction to condemn the property because (1) the county board of commissioners acted without authority when it condemned the Martins’ property for salmon passage, (2) the Salmon Recovery Act does not authorize counties to condemn private property, and (3) salmon passage does not constitute a “public use” under RCW 8.08.010.

¶7 The trial court held an evidentiary hearing on May 19, 2006, and ruled in favor of the County, denying the Martins’ motion to dismiss and granting the County’s petition. The trial court found that (1) the replacement of the Baxter Creek culvert would promote fish passage and accommodate 100-year storm water flows; (2) these two uses constitute “public uses”; and (3) to accomplish these two purposes, it is necessary that the County acquire the sought-after easement rights. The Martins now appeal.

[864]*864ANALYSIS

I. Standard of Review

¶8 Jurisdiction is a question of law and therefore we review de novo. Crosby v. Spokane County, 137 Wn.2d 296, 301, 971 P.2d 32 (1999); State v. Squally, 132 Wn.2d 333, 340, 937 P.2d 1069 (1997).

II. Washington Counties’ Authority To Condemn Private Property

¶9 The power of eminent domain is an inherent power of the state. 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)). This power is limited by our state constitution and must be exercised under lawful procedures. King County, 74 Wn.2d at 675. Delegation of the State’s sovereign power of eminent domain to the State’s political subdivisions must be expressly given or necessarily implied, and statutes conferring such power must be strictly construed. See, e.g., City of Des Moines v. Hemenway, 73 Wn.2d 130, 137, 437 P.2d 171 (1968); State v. King County, 33 Wn.2d 76, 81-82, 204 P.2d 514 (1949).

¶10 We must determine whether there was a lawful basis for the order of condemnation. The parties’ arguments on this question are simple. The Martins assert that the County condemned their property without authority because the condemnation was to enable salmon passage in Baxter Creek, and the legislature has not explicitly granted counties the authority to condemn private property for this purpose under the Salmon Recovery Act, nor does such a purpose qualify as a “public use” under RCW 8.08.010. In response, the County asserts that it has authority under the Salmon Recovery Act and other statutes to condemn the easement. Specifically, the County points out that in its petition for condemnation, it purported that the condemnation was necessary to prevent road damage and public danger in the event of a 100-year storm. How[865]*865ever, the record does not reflect that the commissioners considered or were even aware of this issue when they made their finding that condemnation was necessary. This justification was first advanced by the County’s prosecuting attorney when he filed the condemnation petition.

¶11 We face three questions of first impression: (1) whether the Salmon Recovery Act authorizes the State or its entities to condemn private property, (2) whether Resolution No. 05-152 contains a valid alternative finding of public use for the project, and (3) whether a prosecuting attorney has the authority to articulate an additional purpose for condemnation not articulated by the board of commissioners in its resolution.

A. The Salmon Recovery Act

¶12 In 1999, the Washington State Legislature enacted the Salmon Recovery Act in an attempt to improve salmonid fish runs throughout the state. RCW 77.85.005.

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Bluebook (online)
177 P.3d 102, 142 Wash. App. 860, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cowlitz-county-v-martin-washctapp-2008.