King County v. Olson

501 P.2d 188, 7 Wash. App. 614, 1972 Wash. App. LEXIS 1015
CourtCourt of Appeals of Washington
DecidedSeptember 25, 1972
DocketNo. 1441-1
StatusPublished
Cited by3 cases

This text of 501 P.2d 188 (King County v. Olson) 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
King County v. Olson, 501 P.2d 188, 7 Wash. App. 614, 1972 Wash. App. LEXIS 1015 (Wash. Ct. App. 1972).

Opinion

Horowitz, C. J.

Petitioners Graham seek review by cer-tiorari of an order entered below in eminent domain proceedings, adjudicating the public use and necessity for the taking of their property.

Sometime prior to 1971, King County commenced proceedings to create a trail park between Lake Sammamish and Bothell, Washington. The park area was to be 7 miles in length with an approximate width of 100 feet from the bank on either side of the Sammamish River. Petitioners’ land is located within the proposed park area.

To acquire the land needed for the proposed park, including petitioners’ land, the King County Council enacted ordinance No. 690 authorizing eminent domain proceedings for that purpose. The ordinance was enacted in conformity with the notice requirements called for by Bang County ordinance No. 00583, later discussed. Nevertheless, petitioners received no actual notice of the hearing on the proposed ordinance and did not attend that hearing.

Later, pursuant to ordinance No. 690, King County filed the petition below to acquire the land needed, including that of petitioners. In due course a hearing was held on the county’s petition for the entry of an order of public use and necessity. At the end of the hearing, the court entered an order adjudicating public use and necessity with respect to the land described in the petition, including that of petitioners here. The review here is concerned with the validity of that order.

[616]*616Petitioners first contend that ordinance No. 690 is void because enacted without the “due notice” required by article 2, § 230.10 of the King County Charter. That section reads:

Proposed ordinances shall be limited to one subject and may be introduced by any councilman or by initiative petition. At least seven days after the introduction of a proposed ordinance, except an emergency ordinance, and prior to its adoption or enactment, the county council shall hold a public hearing after due notice to consider the proposed ordinance.

King County Charter, art. 2, § 220.40 provides:

The county council shall adopt by ordinance rules of procedure governing the time, place and conduct of its meetings and hearings and the introduction, publication, consideration and adoption of ordinances.

Acting under art. 2, § 220.40, King County enacted ordinance No. 00583. The provisions of that ordinance include the following:

[T]he County Council shall hold a public hearing after due notice, to consider the proposed ordinance. Due notice shall mean notifying press, radio and television in the County of such public hearing by posting a notice on the bulletin board outside the door of the County Council Chambers, and by such other means as may now or hereafter be required by law.

King County ordinance No. 00583 supplied an omission in the manner of giving the notice required in the enactment of ordinances by RCW 42.32.010, then binding on King County.1 That statute reads:

No . . . authority of any political subdivision exercising legislative . . . powers, shall adopt any ordinance, . . . except in a meeting open to the public and then only at a meeting, the date of which is fixed by law or rule, or at a meeting of which public notice has been given lay notifying press, radio and television in the [617]*617county and by such other means as may now or hereafter be provided by law . . .

Petitioners do not claim any violation of RCW 42.32.010 in enacting ordinance No. 690, nor do they claim that press, radio and television in King County could not or did not in fact acquire notice of the hearing from the notices posted pursuant to ordinance No. 00583. Petitioners first argue, rather, that the posting of notice requirements of ordinance No. 00583 failed to fulfill the “due notice” requirement of art. 2, § 230.10 of the King County Charter in accordance with charter intention and that accordingly ordinance No. 00583 is invalid. A supporting argument in effect made is that if the framers of the charter had been satisfied with the adequacy of the notice requirements of RCW 42.32.010 it would have been unnecessary for art. 2, § 230.10 to provide for “due notice.” Petitioners suggest that “due notice” requires a notice such as a mailed notice or a posting of notices in the neighborhood of the affected landowners. However, it is arguable that one reason for the inclusion of art. 2, §§ 230.10 and 220.40, so far as King County was concerned, was to provide a means for remedying the failure of RCW 42.32.010 to provide for the manner of “notifying press, radio and television in the county . . .” Ordinance No. 00583 enacted in the exercise of the power conferred by art. 2, § 220.40 provided a method of notifying the public media — a method, as we point out shortly, which violated no constitutional or statutory mandate.

That ordinance No. 00583 adequately fulfilled the due notice requirements of art. 2, § 230.10 is evidenced by the- apparent satisfaction with that ordinance — one that has remained unchanged since its enactment. In determining the meaning of art. 2, § 230.10 which may be unclear, we may properly consider the subsequent construction of that enactment, whether by subsequent legislation or executive or administrative practice. See Anderson v. Seattle, 78 Wn.2d 201, 471 P.2d 87 (1970); Bradley v. Department of Labor & Indus., 52 Wn.2d 780, 329 P.2d 196 (1958); Terrace Heights Sewer Dist. v. Young, 3 Wn. App. 206, 473 P.2d 414 [618]*618(1970); 2 J. Sutherland, Statutory Construction §§ 5103-08, 5110 (3d ed. 1943). Had the framers of the charter been as dissatisfied with RCW 42.32.010 as this argument suggests, it would have been a simple matter to define “due notice” in art. 2, § 230.10 instead of taking the risk that by delegating definitional responsibility to the King County council, their intention might be defeated.

Assuming ordinance No. 00583 conforms otherwise to the intention of art. 2, § 230.10, petitioners raise the question whether its notice provisions violate any overriding constitutional provision. We know of no such provision. See 1 P. Nichols, Eminent Domain § 4.103 [1] (3d rev. ed. 1964). Petitioners in effect seek to equate the “due notice” language of art. 2, § 230.10 with due notice in the procedural due process sense. However, the cases from which the language relied on is taken are not cases involving constitutional notice requirements in the enactment of ordinances. A charter may use the phrase “due notice” without necessarily intending that the term be construed in the procedural due process sense.

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Bluebook (online)
501 P.2d 188, 7 Wash. App. 614, 1972 Wash. App. LEXIS 1015, Counsel Stack Legal Research, https://law.counselstack.com/opinion/king-county-v-olson-washctapp-1972.