HTK Management, L.L.C. v. Seattle Popular Monorail Authority

155 Wash. 2d 612

• Court: Washington Supreme Court
• Decided: October 20, 2005
• Docket: No. 76462-0
• Status: Published

Opinions

¶1 Madsen, J.

HTK Management, L.L.C. (HTK), a property owner in downtown Seattle, challenges a trial court order adjudicating public use and necessity that authorizes Seattle Popular Monorail Authority, a/k/a Seattle Monorail Project (SMP), a city transportation authority, to condemn its property to build a monorail station. In this case, both parties agree that the use of the property here for construction of public transportation is a fundamental “public use.”¹ However, HTK alleges that SMP lacks statutory authority to condemn property in the first place and, alternatively, that the adjudication of public use and necessity was improper because, HTK contends, while SMP permissibly condemned a fee interest in the property comprising the monorail footprint, it should have been limited to a multiyear lease on the remainder.

¶2 We hold that SMP has statutory authority to condemn property and affirm the trial court’s order adjudicating public use and necessity.

FACTS

f 3 Traffic is a significant problem in the state of Washington. In 2002, the Washington Alliance for a Competitive Economy reported that “[tjransportation remains the dominant infrastructure concern in the state, particularly in the Central Puget Sound region” and provided the following data: (1) congestion in the Seattle-Everett Corridor ranks second only to Los Angeles, (2) Washington ranks 32nd on per capita state disbursements for highways and local roads, (3) Washington’s 23-cent gas tax, unchanged since 1991, ranks 14th in the nation, and (4) Seattle ranked just 64th on Expansion Management magazine’s September 2001 evaluation of the “100 Most Logistics Friendly Cities.”²

¶4 The 2002 report concludes that “[w]ith most business in Washington eventually involving the movement of goods and people through the congested metropolitan Puget Sound corridor, gridlock puts the economic competitiveness of all communities at risk.”³

¶5 Since 1997, Seattle residents have voted four times in favor of building an expanded monorail public transportation system within the city of Seattle.⁴ In November 1997, voters in the city of Seattle passed Initiative 41, creating a public development authority, the Elevated Transportation Company, “to build, maintain and operate an elevated, electrically-powered . .. mass transit system consisting of specified stations and terminals serving the four quadrants of Seattle and running through downtown. The system would be generally ‘X’ shaped and would lie entirely within” Seattle.⁵

¶6 In July 2000, the Seattle City Council passed Ordinance 120049, amending Initiative 41. Among other things, the ordinance dissolved the Elevated Transportation Company and deleted the requirement that the city council make funds available for the system if necessary by either issuing bonds or raising the city’s business and occupation tax.⁶

¶7 In November 2000, voters in Seattle voted the second time for the monorail, passing Seattle Proposition No. 2 (Initiative 53), which reestablished the Elevated Transportation Company. The Elevated Transportation Company would have up to two years to complete a plan for a monorail system in Seattle. Once the monorail plan was completed, Initiative 53 provided that the Seattle City Council would be required to place the monorail plan before Seattle voters at the next election. Initiative 53 also provided for the repeal of any ordinance that had repealed or amended prior Initiative 41 and that was inconsistent with Initiative 53, and for reinstatement of that part of Initiative 41 that had been repealed or amended.⁷

¶8 In 2002, the Washington State Legislature enacted an enabling statute which authorized voters from cities with a population over 300,000 to create a “city transportation authority” to build a public monorail within that city. Ch. 35.95A RCW. RCW 35.95A.050 provides that a city transportation authority will have a number of powers including the power to “acquire by purchase, condemnation, gift, or grant and to lease, construct, add to, improve, replace, repair, maintain, operate, and regulate the use of public monorail transportation facilities.” RCW 35.95A.050(1).

¶9 A city transportation authority may fix rates, tolls, fares, and charges for use of facilities and may establish various routes and classes of service. RCW 35.95A.050(2). Additionally, a city transportation authority may “Notwithstanding the provision of any law to the contrary, and in addition to any other authority provided by law,” contract with one or more vendors for the design, construction, operation, or maintenance or other service related to the development of a monorail public transportation system. RCW 35.95A.050(3)(a).

¶10 Finally, among other powers, a city transportation authority will have “all other powers necessary and appropriate to carry out its responsibilities, including without limitation the power to sue and be sued, to own, construct, purchase, lease, add to, and maintain any real and personal property or property rights necessary for the conduct of the affairs of the authority, to enter into contracts, and to employ the persons as the authority deems appropriate. An authority may also sell, lease, convey, or otherwise dispose of any real or personal property no longer necessary for the conduct of the affairs of the authority.” RCW 35.95A.050(8).

¶11 Seattle residents voted for the third time in favor of the monorail in November 2002, passing Citizen Petition No. 1: Proposed Seattle Monorail Authority. Citizen Petition No. 1 created a Seattle city transportation authority, now named Seattle Popular Monorail Authority, a/k/a Seattle Monorail Project, respondent in this case. Citizen Petition No. 1 implemented the initial phase of a five-line city monorail system by authorizing the construction and operation of a 14-mile monorail line, the “Green Line.” The Green Line will connect Ballard, Key Arena, Seattle Center, Belltown, downtown Seattle, Pike Place Market, Benaroya Hall, the ferry terminal, Pioneer Square, the Chinatown-International District, the King Street train station, Safeco Field, the Qwest Field, and West Seattle. The Green Line will have 19 monorail stations and is intended to connect with buses, ferries, light rail, and trains. Construction is scheduled to begin in 2005.

¶12 In November 2004, Seattle residents voted again, for the fourth time, for the monorail, defeating Initiative 83. Initiative 83, if enacted into law, would have forbidden the city of Seattle from allowing the use of its city rights-of-way for any new monorail transit facilities, such as the Green Line.⁸

¶13 Seattle residents voted overwhelmingly in favor of the monorail — 63.52 percent voted “no” for Initiative 83.⁹

f 14 On April 7, 2004, SMP passed Resolution No. 04-16 to acquire by condemnation certain property for the Second and Yesler station, the Pioneer Square station, in downtown Seattle. The property is currently a parking garage, commonly referred to as “the sinking ship garage” (the property). The property is owned in fee by the appellant, HTK. The property is also subject to a long-term ground lease. The tenant’s ground lease ends in 2010, with the tenant possessing a 10-year option to extend the lease through 2020. The Second and Yesler station will be constructed on a triangle of property bounded by Second Avenue, Yesler Way, and James Street in downtown Seattle. The Second and Yesler station will provide an intermodal transportation function with connections to the ferry system, the waterfront street car, buses, and light rail.

¶15 SMP has not yet approved a final design for the Second and Yesler station. Some preliminary designs show the station footprint covering the entire property, other more recent designs show a smaller footprint. The final design will be determined by the “Design, Build, Operate, and Maintain” contractor, with the approval of SMP’s board and the city of Seattle. The parties agree that regardless of the ultimate size of the Second and Yesler station, SMP needs the entire property for construction of the staging and development of the Green Line alignment in the vicinity of the Second and Yesler station. After construction of the station, SMP currently has no planned use for any portion of the property that may remain uncovered by the final station design. SMP states that it would be premature to make definitive plans for the property that may possibly fall outside of the footprint. For example, a portion of the property may be used for loading and unloading passengers from paratransit vehicles, taxis, and tour buses. After the monorail is completed, SMP may lease or sell the unused portions of the property, if any.

¶16 On April 28, 2004, SMP filed a petition for condemnation in King County Superior Court and gave notice to HTK. On July 19, 2004, HTK entered into a stipulated order with SMP regarding the public use and necessity and preliminary possession of the subject property. HTK and SMP stipulated that the proposed use for the property is a public use, that the portion of the property covered by the station footprint is necessary for that use, and that the portion of the property not covered by the station footprint is necessary for that use until construction of the Green Line is complete.

¶17 On August 13, 2004, HTK filed a motion to dismiss the case for lack of subject matter jurisdiction. The trial court denied that motion, ruling that because the eminent domain procedures set forth in chapter 8.12 RCW govern condemnation actions brought by SMP, SMP has statutory authority to condemn property, and therefore the trial court had subject matter jurisdiction over the condemnation action.

¶18 On September 13, 2004, the hearing on public use and necessity was held. The trial court denied HTK’s motion for reconsideration of the order denying the motion to dismiss and entered an order adjudicating public use and necessity. HTK filed a notice of appeal and a motion for accelerated review. On October 1, 2004, the Court of Appeals granted HTK’s motion for accelerated review.

¶19 This court accepted certification from the Court of Appeals.¹⁰

ANALYSIS

1. Statutory Authority for SMP to Condemn

¶20 HTK first contends that chapter 35.95A RCW, the statute authorizing creation of SMP, does not specify the procedure for SMP to exercise its condemnation power. Accordingly, HTK argues that SMP is precluded from exercising that power.

¶21 RCW 35.95A.020(1) authorizes every city with a population greater than 300,000 to create a city transportation authority “to perform a public monorail transportation function.” A city transportation authority created under the statute “is a municipal corporation, an independent taxing ‘authority’ within the meaning of Article VII, section 1 of the state Constitution, and a ‘taxing district’ within the meaning of Article VII, section 2 of the state Constitution.” RCW 35.95A.020U).

¶22 A municipal corporation does not have inherent power of eminent domain and may exercise such power only as is expressly authorized by the legislature. In re Petition of City of Seattle, 96 Wn.2d 616, 638 P.2d 549 (1981) (Westlake); City of Des Moines v. Hemenway, 73 Wn.2d 130, 437 P.2d 171 (1968); City of Tacoma v. Welcker, 65 Wn.2d 677, 399 P.2d 330 (1965). Statutes granting the power of eminent domain are to be strictly construed. City of Seattle v. State, 54 Wn.2d 139, 338 P.2d 126 (1959). However, while the legislature’s grant of the eminent domain power to a municipality is to be construed strictly, it is not to be construed so strictly as to defeat the purpose of the legislative grant. Welcker, 65 Wn.2d at 683. “[I]t is not necessary that [eminent domain statutes] cover in minute detail everything which may be done to carry out their purpose. Even though a power is not given in specific words, it may be implied if its existence is reasonably necessary to effect the purpose of the condemning authority.” In re Petition of Port of Grays Harbor, 30 Wn. App. 855, 862, 638 P.2d 633 (1982) (citing State ex rel. Hunter v. Superior Court, 34 Wn.2d 214, 217, 208 P.2d 866 (1949)); see also Chem. Bank v. Wash. Pub. Power Supply Sys., 99 Wn.2d 772, 792, 666 P.2d 329 (1983) (“a municipal corporation’s powers are limited to those conferred in express terms or those necessarily implied”).

¶23 The legislature must confer not only the power to condemn but must “prescribe the method by which it is to be done.” City of Tacoma v. State, 4 Wash. 64, 66, 29 P. 847 (1892). Where the legislature has failed to provide a procedure, “either directly or by implication or by reference to other acts having a similar purpose,” the condemning entity has no authority to condemn. State ex rel. Mower v. Superior Court, 43 Wn.2d 123, 131, 260 P.2d 355 (1953). As a general rule,

[w]hen a state delegates to a municipality the right to condemn private property for a public use but the statute delegating that authority does not provide a method for its exercise, the general law of the state prescribing the procedure, and the method of ascertaining the damages is, by implication, a part of the law delegating the power.

11A Eugene McQuillin, The Law of Municipal Corporations § 32.117, at 207-08 (3d ed. 2000).

f 24 SMP’s condemnation powers are set forth in RCW 35-.95A.050(1). As HTK correctly states, RCW 35.95A.050(1) does not specify the procedure that SMP must use when exercising its condemnation power. The question then is whether a method or procedure can be inferred from the statute.

¶25 Relying primarily on one case, Mower, HTK claims that condemnation procedures cannot be inferred and that the legislature must incorporate a particular Title 8 RCW procedure by reference or prescribe an alternative procedure to be used by the condemning entity in the authorizing statute. In Mower, a metropolitan park district brought a condemnation action pursuant to RCW 35.61.130, which granted the district that authority. The property owners resisted the condemnation, claiming that the statute failed to prescribe a condemnation procedure and, therefore, the district lacked authority to condemn. Mower, 43 Wn.2d at 127. On appeal, this court reiterated the constitutional requirement that before private property may be taken or damaged for a public or private use, just compensation must be made or be ascertained “in the manner prescribed by law.” Const, art. I, § 16. The court noted that although a number of statutes set forth condemnation procedures for particular entities, none provided procedures for park districts. The court then observed that the general procedural statute upon which the park district relied had been repealed and opined that the legislature had intended to provide specific statutory procedures for specific condemning entities. Turning to RCW 35.61.130, the court found nothing in the district’s authorizing statute, “either directly or by implication or by reference to other acts having a similar purpose,” setting forth the procedure for condemnation by a metropolitan park district. Mower, 43 Wn.2d at 131. Accordingly, the court held that the district had no authority to condemn the property at issue. Id. HTK claims that, as with the park district in Mower, SMP has no authority to condemn because the legislature did not provide a method for the exercise of its eminent domain power as required by article I, section 16 of the Washington Constitution.

¶26 SMP contends that HTK’s reading of Mower is too broad, pointing to the language quoted above to the effect that a condemnation procedure may be implied. Further, SMP points to a distinction between RCW 35.95A.050(1) and the statute at issue in Mower. The park district statute in that case authorized a metropolitan park district to condemn territory outside the territorial limits of the proposing city, including areas of the unincorporated county.¹¹ Since condemnation procedures for both cities and counties might be implicated and because the court in Mower could not reasonably infer the procedure to be used by a park district from the authorizing statute or from other statutes relating to condemnation, the court declined to “make up such procedure out of whole cloth.” Mower, 43 Wn.2d at 130.

¶27 In contrast, SMP points out that RCW 35.95A.050(1) authorizes SMP to condemn property only within the physical confines of the proposing city. Thus, unlike the authorizing statute in Mower, SMP argues that it can reasonably be inferred from RCW 35.95A.050 that the legislature intended SMP to use the general condemnation procedures prescribed for cities in chapter 8.12 RCW. SMP reasons that RCW 35.95A.050 authorizes the city to establish a “city transportation authority” that will operate within the boundaries of the city and provides that the transportation authority is to be created by city ordinance or by petition of the city’s residents. RCW 35.95A.030(1), (2).¹² As such, SMP is a creature of the city. Accordingly, SMP contends, by necessary implication, the condemnation procedure for cities, chapter 8.12 RCW, is applicable to SMR

f 28 HTK claims that Mower requires that a method or procedure for condemnation must be express. First, HTK argues that there is little difference between the park district in Mower and SMP because, as with a transportation authority under chapter 35.95ARCW, a park district is a municipal corporation that can be formed by only a first class city. Further, HTK contends both the park district statute and SMP’s authorizing statute authorize condemnation outside their respective territorial limits. Finally, HTK argues that even if there is a distinction to be made on the scope of the condemnation power, territorial boundaries were not even mentioned by the Mower court.

¶29 We agree with SMP that HTK is reading Mower too broadly. In Mower, the court distinguished an earlier decision, Town of Redmond v. Perrigo, 84 Wash. 407, 146 P. 838 (1915). In Perrigo the property owner argued that the city of Redmond was without power to condemn because no procedure had been provided in the act authorizing condemnation. Perrigo was proceeding under the authority of the public utilities act, authorizing cities to condemn property for the purposes of supplying water. However, that statute did not include a method of condemnation. Perrigo, 84 Wash, at 409. The court rejected the challenge to the town’s condemnation authority, stating that “[w]here the power is given, a method will be accorded.” Id. at 409. The court then turned to the general condemnation statute and held that the statute provided the proper method for the town to follow. Id. Mower noted that the general condemnation statute referenced in Perrigo had been repealed and, therefore, the park district could not rely on that general authority. Mower, 43 Wn.2d at 130-31. Perrigo, like Mower, indicates that a procedure need not be expressly referenced in the authorizing statute and that general procedural statutes may impliedly provide the method for exercising the condemnation power.

¶30 Recent cases also suggest that procedures need not be expressly referenced in condemnation statutes. In Port of Edmonds v. Northwest Fur Breeders Cooperative, Inc., 63 Wn. App. 159, 816 P.2d 1268 (1991), the property owners appealed an order of public use and necessity contending that the port of Edmonds had failed to give proper statutory notice of the condemnation, which was authorized at a port hearing. The port argued that RCW 53.08.010, which authorizes ports to exercise the eminent domain power, requires the port to follow the procedure applicable to first-class cities and references chapter 8.12 RCW. The port contended that since it followed the procedures of chapter 8.12 RCW, it had satisfied statutory requirements. The Court of Appeals disagreed. It reasoned that because the condemnation was established by ordinance, the port was also required to comply with RCW 35.22.288, governing the adoption of ordinances by first-class cities. Although the port’s authorizing statute, RCW 53.08.010, did not reference RCW 35.22.288, the Court of Appeals nevertheless concluded that compliance with RCW 35.22.288 was required.

¶31 Similarly, Silver Firs Town Homes, Inc. v. Silver Lake Water District, 103 Wn. App. 411, 12 P.3d 1022 (2000), lends weight to SMP’s argument. There the property owner claimed that the water district was required to give public notice of proposed rate changes, pursuant to RCW 35-.22.288, which apply to first-class cities. The owner reasoned that because the district’s authorizing statute, RCW 57-.08.010, requires water districts to follow eminent domain procedures for cities, it should be required to follow the notice requirements for cities when engaging in rate setting. The court declined to imply a requirement that the district comply with the notice requirements of RCW 35-.22.288 because water districts are not first-class cities. The court did, however, imply a requirement that the district follow the notice requirements under the Open Public Meetings Act of 1971 (OPMA), chapter 42.30 RCW, even though the water district statute, RCW 57.08.010, did not mention the OPMA.¹³

¶32 Considering case law both before and since Mower, we hold that powers reasonably necessary to carry out a grant of the eminent domain power may be inferred from the authorizing statute or from other statutes.

f 33 The next step is to determine whether chapter 35.95A RCW implies such procedures. The meaning of a statute is inherently a question of law and our review is de novo. King County v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 142 Wn.2d 543, 555, 14 P.3d 133 (2000); Dioxin/Organochlorine Ctr. v. Pollution Control Hearings Bd., 131 Wn.2d 345, 352, 932 P.2d 158 (1997). The primary goal of statutory interpretation is to ascertain and give effect to the legislature’s intent and purpose. Am. Cont’l Ins. Co. v. Steen, 151 Wn.2d 512, 518, 91 P.3d 864 (2004); Dep’t of Ecology v. Campbell & Gwinn, L.L.C., 146 Wn.2d 1, 9, 43 P.3d 4 (2002). This is done by considering the statute as a whole, giving effect to all that the legislature has said, and by using related statutes to help identify the legislative intent embodied in the provision in question. Campbell & Gwinn, 146 Wn.2d at 11. If, after this inquiry, the statute can reasonably be interpreted in more than one way, then it is ambiguous and resort to principles of statutory construction to assist in interpreting it is appropriate. State ex rel. Citizens Against Tolls (CAT) v. Murphy, 151 Wn.2d 226, 242-43, 88 P.3d 375 (2004); Campbell & Gwinn, 146 Wn.2d at 12.

¶34 Looking first to the language of the statute, a transportation authority can be created under RCW 35-.95A.030 through a legislative act only by a city. RCW 35-.95A.020 provides that a transportation authority created under the statute is a municipal corporation. A municipal corporation is defined as “a body politic established by law as an agency of the state — partly to assist in the civil government of the country, but chiefly to regulate and administer the local and internal affairs of the incorporated city, town, or district.” Lauterbach v. City of Centralia, 49 Wn.2d 550, 554, 304 P.2d 656 (1956). Further, RCW 35-.95A.040 provides that the transportation authority is “subject to all standard requirements of a governmental entity pursuant to RCW 35.21.759,” which imposes on public corporations the general laws regulating the local government that created the entity. Taking these provisions into account and considering the fact that the legislature intended to grant condemnation powers to an entity created pursuant to chapter 35.95A RCW, we hold that, by implication, chapter 8.12 RCW, the procedure to be followed by a city, applies to SMP.

135 Next, HTK argues that merely because a transportation authority can be created only by a city does not mean that chapter 8.12 RCW is the obvious statute to be applied to SMP. HTK cites Fur Breeders for the proposition that condemnation procedures for cities are not limited to chapter 8.12 RCW. However, Fur Breeders suggests that chapter 8.12 RCW, in addition to other notice statutes specifically applying to cities, provides the requirements for the exercise of the eminent domain power. SMP does not contend that it is subject only to the requirements of chapter 8.12 RCW.

¶36 Finally, SMP argues that the procedures provided for an exercise of eminent domain are necessary to satisfy due process and that due process does not require the legislature to expressly designate the procedure to be followed when there is a statutory procedure available and implied. SMP is correct. Due process concerns are at the core of article I, section 16’s requirement that a method for condemnation be provided by law. HTK does not complain that its due process rights have been violated, and it has cited no case holding that due process requires the method of condemnation to be cross-referenced in legislation authorizing condemnation. Accordingly, we hold that SMP properly followed the condemnation method prescribed for cities in chapter 8.12 RCW.

2. Public Use and Necessity Determination

¶37 Washington’s constitution provides that “[n]o private property shall be taken or damaged for public or private use without just compensation having first been made.” Const, art. I, § 16. Under long standing Washington jurisprudence, this court has developed a three-part test to evaluate eminent domain cases. State ex rel. Wash. State Convention & Trade Ctr. v. Evans, 136 Wn.2d 811, 817, 966 P.2d 1252 (1998) (Convention Center). For a proposed condemnation to be lawful, the condemning authority must prove that (1) the use is really public, (2) the public interest requires it, and (3) the property appropriated is necessary for that purpose. Convention Ctr., 136 Wn.2d at 817 (citing Westlake, 96 Wn.2d at 625; King County v. Theilman, 59 Wn.2d 586, 593, 369 P.2d 503 (1962)).

¶38 A determination that an acquisition is for a “public use” is not precisely the same thing as determining it is a “public necessity,” even though the two terms do overlap to some extent. Hemenway, 73 Wn.2d at 138. The “question [as to] whether the contemplated use be really public shall be a judicial question.” Const, art I, § 16; Dickgieser v. State, 153 Wn.2d 530, 535, ¶ 10, 105 P.3d 26 (2005). Although the legislature may declare that a particular use of property is a “public use,” that determination is not dispositive. Dickgieser, 153 Wn.2d at 535-36, ¶ 10. However, a legislative declaration is entitled to great weight. Westlake, 96 Wn.2d at 624-25 (citing Hemenway, 73 Wn.2d 130).

¶39 In contrast, the question of necessity, and thus the standard of judicial review of a declaration of public necessity, differs from that applied to a declaration of public use. Convention Ctr., 136 Wn.2d at 823. 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. Hemenway, 73 Wn.2d at 139 (citing Welcker, 65 Wn.2d 677; State ex rel. Church v. Superior Court, 40 Wn.2d 90, 91, 240 P.2d 1208 (1952)).¹⁴

a. Public use of property to build a public monorail

¶40 Unlike in Kelo v. City of New London, 545 U.S. 469, 125 S. Ct. 2655, 162 L. Ed. 2d 439 (2005), in this case it is undisputed that the use to which the property is to be put — public transportation — is a clear public use. Clerk’s Papers (CP) at 15 (stipulation by the parties). Indeed, public transportation has been determined to be public use for nearly 100 years in Washington. City of Seattle v. Byers, 54 Wash. 518, 103 P. 791 (1909); State ex rel. Thomas v. Superior Court, 42 Wash. 521, 85 P. 256 (1906).¹⁵

b. Whether the determination of the property to be condemned is a judicial or legislative question

¶41 HTK claims that SMP’s decision to condemn a fee interest in the entire property should be analyzed under the first prong of the test for “public use,” rather than under the third prong of the test for “necessity.” HTK asserts that SMP should have decided to condemn a fee interest in only the portion of the property that was likely to contain the monorail station and to condemn an easement interest in the remainder of the property that is to be used for construction staging and development of the Green Line alignment.

¶42 SMP correctly states that determinations by the condemning authority as to the type and extent of property interest necessary to carry out the public purpose have historically been considered legislative questions and are thus analyzed under the third prong of the test. In City of Tacoma v. Humble Oil & Refining Co., 57 Wn.2d 257, 356 P.2d 586 (1960), property owners appealed an order of public use and necessity. In that case, the city sought to condemn a fee simple interest in the land, which would include the mineral rights. This court noted that the property owners recognized the rule that “ ‘the action of a public agency or a municipal corporation having the right of eminent domain in selecting land for a public use will not be controlled by the courts’ ” and is thus a legislative question. Id. at 258 (quoting State ex rel. Tacoma Sch. Dist. No. 10 v. Stojack, 53 Wn.2d 55, 64, 330 P.2d 567 (1958)). See also Port of Grays Harbor, 30 Wn. App. 855 (the court finding that it was a legislative question as to whether a fee or easement property interest should be condemned). These cases providing deference to legislative questions are rooted in long standing Washington law. Since the turn of the century, Washington courts have provided significant deference to legislative determinations of necessity in the context of eminent domain proceedings. See, e.g., Thomas, 42 Wash, at 524-25.

¶43 Other states agree that a condemning authority’s decision as to the type and extent of property interest is a legislative question. See, e.g., Westrick v. Approval of Bond of Peoples Natural Gas Co., 103 Pa. Commw. 578, 581, 520 A.2d 963 (1987) (“administrative decisions of a condemnor concerning the amount, location, or type of estate condemned are not subject to judicial review unless such decisions are in bad faith, arbitrary, capricious, or an abuse of power”; it is the condemnee’s burden to prove an administrative abuse, and this burden is a heavy one to meet); City of New Ulm v. Schultz, 356 N.W.2d 846, 849 (Minn. Ct. App. 1984) (finding that acquiring a fee interest in property was reasonably necessary; city need only show that acquiring a fee interest rather than an easement was a reasonable means of acquiring airport protection privileges); Concept Capital Corp. v. DeKalb County, 255 Ga. 452, 453, 339 S.E.2d 583 (1986) (court following the rule that, “ ‘[i]n the absence of bad faith, the exercise of the right of eminent domain rests largely in the discretion of the authority exercising such right, as to the necessity, and what and how much land shall be taken’ ” (quoting City of Atlanta v. Heirs of Champion, 244 Ga. 620, 621, 261 S.E.2d 343 (1979)); St. Andrew’s Episcopal Day Sch. v. Miss. Transp. Comm’n, 806 So. 2d 1105, 1111 (Miss. 2002) (selection of the particular land to condemn as well as the amount of land necessary are legislative questions to be determined by the condemning authority). City of Phoenix v. McCullough, 24 Ariz. App. 109, 114, 536 P.2d 230 (1975) (“we believe the rule to be that a condemnor’s determination of necessity should not be disturbed on judicial review in the absence of fraud or arbitrary and capricious conduct”); Regents of Univ. of Minn. v. Chi. & Nw. Transp. Co., 552 N.W.2d 578 (Minn. Ct. App. 1996) (analyzing whether university demonstrated that proposed taking is “necessary,” reviewed under the legislative standard of review).¹⁶

¶44 HTK claims, though, that Convention Center changes the standard of review for this case and that SMP’s decision to condemn a fee interest is thus a judicial question. In Convention Center, this court addressed a proposed expansion of the Washington State Trade and Convention Center. The legislature appropriated $111.7 million for the expansion but, as a condition, required the convention center to contribute $15 million. The convention center developed a plan that involved condemning property across the street from the existing convention center. The proposed expansion would sit four stories above street level. The three floors below were to be sold to a private developer at the same time as the condemnation. The private developer would contribute $15 million and would build the outer shell of the convention center. In return, the private developer would take a fee simple title to the remaining three floors for construction of retail and parking. The court determined that the condemnation was a “public use,” within the meaning of the Washington Constitution, and that the private development was “merely incidental.” Convention Ctr., 136 Wn.2d at 822-23.

¶45 HTK claims that because the court in Convention Center held that a private use was merely incidental when it was within the “footprint” of the convention center, this court is required to undertake a “public use” examination because, in this case, property may be sold to a private party that is outside the “footprint” of the proposed monorail station.

¶46 HTK’s reliance on Convention Center is misplaced and does not alter the rule, as stated in Humble Oil and in Port of Grays Harbor, that decisions as to the amount of property to be condemned are legislative questions, reviewed under the legislative standard for necessity. Moreover, in Convention Center, the court was faced with a very different situation — condemnation of property on which a significant part was never going to be put to a public use. As SMP points out here, in contrast, the entire property will be put to a public use. As discussed above, public transportation has been determined to be a public use for nearly 100 years in Washington: City of Seattle v. Byers, 54 Wash. 518, 103 P. 791 (1909); State ex rel. Thomas v. Superior Court, 42 Wash. 521, 85 P. 256 (1906). Although the monorail station is not likely to take up the entire footprint of the property, the record indicates that the remaining portion of the property could be used for at least 10 years for construction and remediation of property in downtown Seattle. Report of Proceedings (RP) at 12. Additionally, unlike in Convention Center, whether any portion of the property will ever be sold or leased is not known. In contrast, in Convention Center, a private developer immediately took ownership of three floors of retail space. In this case, for the first 5-10 years, a substantial portion of the property will be put to public use and only after that time is there a possibility that the property may be sold. Furthermore, the record indicates that in other cities that have constructed public monorail transportation systems, surrounding land may need to be owned permanently by the condemning authority due to the particular traffic pattern of monorail stations.

¶47 HTK counters, however, that since SMP might sell or lease surplus property, if any, after the monorail is completed, the court is required to undertake a searching judicial review of the necessity of SMP’s determination to condemn a fee interest in the property.¹⁷ HTK points to no authority that requires a condemning authority to have a public use planned for property forever. Indeed, long standing Washington law is to the contrary. In Reichling v. Covington Lumber Co., 57 Wash. 225, 106 P. 777 (1910), a property owner brought suit to enjoin logging activity on land that had been condemned earlier by the city of Seattle. Under the original condemnation, the city condemned a separate parcel of the property owner’s land for purposes of its Cedar River water system. Nine years later, the city passed an ordinance whereby it granted a license to a private party to construct a logging road on the land. The property owner brought suit to enjoin the private party from entering the land. The court noted, “ ‘[w]here a fee simple is taken, the weight of authority is that there is no reversion, but, when the particular use ceases, the property may, by authority of the state, be disposed of for either public or private uses.’ ” Id. at 228 (quoting 1 John Lewis, A Treatise on the Law of Eminent Domain § 596, at 765 (2d ed. 1888) and citing 2 John F. Dillon, Commentaries on the Law of Municipal Corporations § 589, at 690 (4th ed. 1890)).

¶48 The court in Reichling also cited Seattle Land & Improvement Co. v. City of Seattle, 37 Wash. 274, 79 P. 780 (1905), finding that “ £[w]here property is taken,. . . with the intention of using it for a certain purpose specified in the ordinance authorizing the taking, as was done in this case, the city, doubtless, has the authority to change said contemplated use to another and entirely different use, whensoever the needs and requirements of the city suggest.’ ” Reichling, 57 Wash, at 228 (quoting 37 Wash, at 277).

¶49 Given long standing, well-settled case law in Washington, providing that decisions as to the type of property interest to be acquired are reviewed under the deferential legislative standard, we hold that SMP’s determination to condemn a fee interest in HTK’s property is a legislative question.¹⁸

c. Whether a fee interest is reasonably necessary

¶50 The next step is to determine whether the condemnation of a fee interest in the entire property is “necessary” for the public use. SMP correctly cites Welcker, 65 Wn.2d at 684-85, for the general rule that if a condemning authority has conducted its deliberations on an action “honestly, fairly, and upon due consideration” for facts and circumstances, that action will not be considered arbitrary and capricious, “even though there be room for a difference of opinion upon the course to follow, or a belief by the reviewing authority that an erroneous conclusion has been reached.” Courts will consider costs of the project as a relevant factor. See e.g., Port of Grays Harbor, 30 Wn. App. 855; Schultz, 356 N.W.2d 846.¹⁹

¶51 In this case, SMP determined that acquisition of the fee interest in property was reasonably necessary and required for the construction, operation, and maintenance of the monorail station on HTK’s property and for related construction staging and development of the Green Line alignment in the vicinity of the station. SMP asserts that the SMP board of directors determined that this use was of an intensity and duration to justify the taking of the fee interest.

¶52 HTK points to a number of documents that indicate that SMP plans “Associated Development.” Associated Development is defined by SMP to mean “a free standing project not connected to a station, built by a third party on land that SMP has fee ownership or some development rights and is most likely built after a station is built. The land can be sold outright or ground leased.” CP at 358. HTK notes that SMP has specifically indicated that a portion of HTK’s property might yield “surplus property,” suitable for Associated Development. The record supports HTK’s contention. At a community hearing about this monorail station, “SMP told the community that the residual property would be sold and it did not know yet how the property would be used.” Resp’t’s Ex. 15. The revenue generated from possible transfers of “excess property” was included in SMP’s earlier budgets. RP at 102. However, SMP noted in testimony that in a similarly situated property (in downtown Vancouver), the entire footprint outside that monorail station was used as a park and not developed separately due to the ongoing need for access. RP at 101.

153 Amicus cite the case City of Cincinnati v. Vester, 33 F.2d 242 (6th Cir. 1929), in part for the proposition that excess condemnation, taking more land than is necessary, in order to help recoup the cost of public projects is impermissible. In Vester, the city condemned property to widen a street by 25 feet. The city condemned land within that strip of land and attempted to condemn land outside of the 25-foot strip. The city was prohibited from condemning the excess property. The Sixth Circuit held that the property was taken only in order to sell it (for a private use) at a later date in order to capture the increased value that the widened street would bring. Id.20

¶54 SMP argues that Vester, 33 F.2d 242, is distinguishable since the city had no public use at all for the property except for possible recoupment. In contrast, in this case, SMP is condemning property only that it has determined is necessary for public use. SMP contends that the evidence demonstrates that the entire property will be used for the construction, maintenance, and operation of the monorail station and the construction staging. Moreover, the proposed station designs include plans encompassing the entire parcel. Given the cost of this undisputed present need of indefinite length and the permanent need for at least a significant portion of the property, SMP contends that the SMP board justifiably determined that the cost of the construction easement could easily eclipse the cost of a fee interest. Testimony as to fair market value of construction easements was undisputed at the hearing. Furthermore, SMP contends that a condemning body may consider financial implications when determining what interests are necessary to condemn, citing Convention Center.

¶55 The record supports SMP’s contentions that it needs all of the property for a substantial period of time to build and construct a monorail station and may need all of it indefinitely. It is significant that testimony was undisputed that the cost of the temporary construction easement combined with likely cost of damages due to a ground lessee could eclipse the cost of a fee interest. Given the absence of actual or constructive fraud, we hold that SMP’s determination to condemn a fee interest in the entire property was necessary to the public use of public transportation.²¹

ATTORNEY FEES

¶56 HTK requests attorney fees. RCW 8.25.075(1) provides that a superior court having jurisdiction of a proceeding instituted by a condemnor to acquire real property shall award the condemnee costs including reasonable attorney fees and reasonable expert witness fees if there is a “final adjudication that the condemnor cannot acquire the real property by condemnation.” Because we conclude that SMP, the condemnor, can acquire the property, HTK, the condemnee, is properly denied attorney fees.

CONCLUSION

¶57 Consistent with our case law and public policy, courts ensure that property condemned is put to a public use, and the legislature/local governments ensure that such projects are developed in a cost effective manner. This division provides deference to local governments to determine what property is necessary to implement projects that a court has determined are for a public use. This court is both preserving important property ownership rights and ensuring that when a municipal authority condemns property for a public project, such project is truly for the “public use” within the meaning of the Washington State Constitution. Unlike in the recent United States Supreme Court case, Kelo, this case involves one of the most fundamental public uses for which property can be condemned — public transportation. Accordingly, the trial court’s finding of public use and necessity is affirmed.

Alexander, C.J., and C. Johnson, Bridge, Owens, and Fairhurst, JJ., concur.

Chambers, J., concurs in the result only.

1 Contrary to the dissent’s view, the facts and legal issues in this case bear no resemblance to the recent decision in the United States Supreme Court in Kelo v. City of New London, 545 U.S. 469, 125 S. Ct. 2655, 162 L. Ed. 2d 439 (2005). In Kelo, the city of New London condemned property in order to develop a certain area of the city, which included the condemnation of property in order to build a private hotel and new private residences to be owned by new home owners. Id. In contrast, in this case, the property is being condemned to build a public monorail, an undisputed, historic public use.

2 Ass’n of Wash. Business, WashACE 2002 Competitiveness Report: ‘Will Washington Shrug?”, Transportation at http://www.awb.org/policy/competitive ness/2002reportmain.htm (last visited Oct. 18, 2005).

3 id.

4 Currently there is a one-mile monorail system in Seattle, operating between Seattle Center and downtown Seattle. This monorail was built for the World’s Pair held in Seattle in 1962.

5 City of Seattle Proposition No. 2 (Initiative 53: The Monorail), City Attorney’s Explanatory Statement (Nov. 7, 2000), King County Records, Elections & Licensing Servs. Div., King County On-Line Voter’s Pamphlet, available at http:// www.metrokc.gov/elections/2000nov/pamphlet/pamph.htm (as of Oct. 18, 2005).

⁶

⁷

8 City of Seattle Initiative No. 83, City Attorney’s Explanatory Statement (Nov. 2, 2004), King County Records, Elections & Licensing Servs. Div., Voter’s Pamphlet — Ballot Measures, General and Special Elections, available at http:// www.metrokc.gov/elections/pamphlet/1204/index.litm (as of Oct. 18, 2005).

9 Official Final Results, City of Seattle Initiative No. 83 (Nov. 2, 2004), King County General and Special Election Results, available at http://www.metrokc.gov/ elections/2004nov/resPagel6.htm (as of Oct. 18, 2005).

10 Amicus curiae briefs were submitted by the Institute for Justice, Washington Chapter, and by Paul and Josephine Fiorito.

11 A municipality has no power to condemn outside its limits in the absence of express authority to do so. Hemenway, 73 Wn.2d at 138.

12 An initiative passed by the electorate is the same exercise of sovereignty as that exercised by the legislative authority. Maleng v. King County Corr. Guild, 150 Wn.2d 325, 330, 76 P.3d 727 (2003).

13 We cite the case of Fur Breeders only to demonstrate that other statutes might provide the method or procedure necessary to carry out the condemnation authority.

14 The dissent concedes that this test is the proper test to be used by this court in eminent domain proceedings.

15 The dissent concedes that construction of the public monorail is a public use.

16 The dissent criticizes the majority for citing out-of-state cases. Contrary to the dissent’s claims, under long standing Washington jurisprudence out-of-state cases, while not controlling, are instructive. See, e.g., Welcker, 65 Wn.2d at 683 (citing out-of-state cases on eminent domain that follow Washington principles); Thomas, 42 Wash, at 525 (same).

17 The dissent concedes that Washington Constitution article I, section 16 contains the term “public use” and does not include the term “public necessity.”

18 The dissent criticizes the majority and claims that the majority is “blurring” the distinctions between the constitutionally mandated inquiry into whether the use is a “public use” and the judicial corollary determining whether the condemnation is “necessary.” But, it is the dissent that blurs the distinction. The dissent agrees that this court employs a three-part test to determine whether a condemnation is constitutional. Yet, in derogation of its own statement of law, it conflates the third prong of the test — the necessity question — into the first prong of the test. The dissent would read the “public use” prong to make two inquiries: (1) is the use public and, if so, (2) is the government condemning more real property than is “needed.” However, as discussed above, under long standing Washington case law including Convention Center, Westlake, Humble Oil, Welcker, Hemenway, and Dickgieser, these two inquiries are separate questions and are analyzed by this court under two different standards.

In a similar vein, the dissent cites Humble Oil, claiming that Humble Oil contains a “universal rule” which is separate from the three-prong test discussed above. The dissent is again mistaken. The dissent artfully fails to explain this court’s holding in Humble Oil, that “manifest abuse of discretion was not found” with this court providing the same deference given to legislative questions of “necessity.” See also State ex rel. Tacoma Sch. Dist. No. 10 v. Stojack, 53 Wn.2d 55, 330 P.2d 567 (1958) (dissent again fails to mention this court’s deference to legislative determinations as to the selection of land “reasonably necessary” and that manifest abuse of discretion was not found). Furthermore, the dissent fails to explain the context and holding of Neitzel v. Spokane International Railway Co., 65 Wash. 100, 117 P. 864 (1911). Unlike in this case and other cases cited by the majority above, Neitzel involved a determination, years after the fact of whether a railroad had obtained a fee interest or an easement in property at a time when the extent of interests railroads could acquire in property was unclear.

19 The dissent concedes that this court has upheld various determinations of what constitutes necessity. “Necessity” requires only that the condemning authority show that the condemned property was “reasonably necessary” for the public use, not that it was absolutely necessaiy or indispensable. See, e.g., Welcker, 65 Wn.2d at 684 (the necessity requirement “embraces the right of the public to expect and demand the service and facilities to be provided by a proposed acquisition or improvement”; “[r]easonable necessity for use in a reasonable time is all that is required”). Thus, the property here is “reasonably necessary” for the public transportation project given that all of the property will be used initially for the construction of the monorail and a significant portion, and perhaps all, of the property will be used indefinitely for the monorail station and access to the station.

20 The United States Supreme Court affirmed, on narrower grounds. City of Cincinnati v. Vester, 281 U.S. 439, 50 S. Ct. 360, 74 L. Ed. 950 (1930) (concluding that the proceedings for excess condemnation of the properties involved in the suits were not taken in conformity with the applicable law of the state and affirming the decrees below upon that ground).

21 The dissent erroneously claims that SMP has engaged in arbitrary and capricious conduct. First, as discussed above, an action taken by a municipality after proper procedural consideration is not arbitrary or capricious, even though a reviewing court may believe it is erroneous. See Welcker, 65 Wn.2d at 684. In this case, HTK is not alleging that SMP’s decision-making process was improper. Second, the dissent’s reliance on Port of Everett v. Everett Improvement Co., 124 Wash. 486, 214 P. 1064 (1923) is misplaced. Unlike the condemning authority in that case, in which there was no plan for any type of current or future construction or improvement, SMP has developed a plan for using the entire property— building the monorail. Moreover, nothing in Everett Improvement requires this court to find that the failure to have in place a definitive use plan for the entire life of the property makes the condemning authority’s actions arbitrary and capricious. Second, the fact that SMP may sell or lease a part of the condemned property at some future point does not show an unconstitutional improper motive. As discussed above, in Convention Center, this court upheld the condemning entity s agreement, up front, to sell three of the four floors of the convention center to private commercial interests. Here, there is no agreement for sale and, in contrast, there is an immediate use of the entire property for construction, staging, alignment, and future operation of a monorail station.