stating that "meaning is discerned from all that the Legislature has said in the statute and related statutes which disclose legislative intent about the provision in question"
How later courts described this case
- stating that "meaning is discerned from all that the Legislature has said in the statute and related statutes which disclose legislative intent about the provision in question"
- "Where statutory language is plain and unambiguous, we ascertain the meaning of the statute solely from its language."
- "'Appropriation' is a term of art specifically used in the water rights context."
- "Under modern conditions, the city's plant is just as much a necessity to the community as is a railroad, and the production and distribution of electricity is a public use."
Written by the judges who cited it.
The opinion
X
/FnnEv
iMCLiiKiOfnci X
This opinion was filed foV roc^i
s ceum;eBOtCFwweeniM at__£. _on A«v^,
SUSAN L. CARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
CENTRAL PUGET SOUND REGIONAL No. 94255-2
TRANSIT AUTHORITY, a regional transit (consol. with
authority, dba SOUND TRANSIT, No. 94406-7,
No. 94530-6, and
Respondent, No. 95148-9)
V.
WR-SRI 120TH NORTH LLC, a Delaware limited
liability company: WR-SRI 120TH LLC, a En Banc
Delaware limited liability company; SAFEWAY,
INC., a Delaware corporation; NORTHWESTERN
IMPROVEMENT COMPANY, a Delaware
corporation; CENTURYLINK, INC., a Louisiana
corporation fka PACIFIC NORTHWEST BELL Filed AUG 0 2 2018
TELEPHONE COMPANY, a Washington
corporation; PUGET SOUND ENERGY, INC., a
Washington corporation; PPF AMILI 121 ST
AVENUE NE, LLC, a Delaware limited liability
company.
Respondents,
CITY OF SEATTLE,
Appellant,
SEATTLE CITY LIGHT, a Washington municipal
corporation; CITY OF BELLEVUE, a Washington
municipal corporation; U.S. BANK NATIONAL
ASSOCIATION; PUGET SOUND ENERGY, INC.,
a Washington corporation; AF OPERATIONS,
LLC, a Delaware limited liability company;
AMAZON.COM INC., a Delaware corporation;
ORCA BAY SEAFOODS, INC., a Washington
corporation; KING COUNTY, a Washington
Cent. Puget Sound Reg'l Transit Auth. v. WR-SRI 120th N. LLC, et al.
No. 94255-2 (consol. with No. 94406-7, No. 94530-6, and No. 95148-9)
municipal corporation; and ALL UNKNOWN
OWNERS and UNKNOWN TENANTS,
Respondents.
CENTRAL PUGET SOUND REGIONAL
TRANSIT AUTHORITY, a regional transit
authority, dba SOUND TRANSIT,
Respondent,
V.
SAFEWAY INC., a Delaware corporation. King
County and All Unknown Owners and Unknown
Tenants,
Other Parties,
CITY OF SEATTLE,
Appellant.
CENTRAL PUGET SOUND REGIONAL
TRANSIT AUTHORITY, a regional transit
authority, dba SOUND TRANSIT,
Respondent,
STERNOFF L.P., a Washington limited
partnership; JPMORGAN CHASE BANK, N.A.,
W. STERNOFF LLC, a Washington limited liability
company dba BODYGLIDE; KING COUNTY, a
Washington municipal corporation; and ALL
UNKNOWN OWNERS and UNKNOWN
TENANTS,
Other Parties,
and
CITY OF SEATTLE,
Cent. Puget Sound Reg'l Transit Auth. v. WR-SRI 120th N. LLC, at si.
No. 94255-2 (consol. with No. 94406-7, No. 94530-6, and No. 95148-9)
Appellant.
CENTRAL PUGET~SOUND REGIONAL"'
TRANSIT AUTHORITY, a regional transit
authority, dba SOUND TRANSIT,
Respondent,
ANN SEENA JACOBSEN, who also appears of
record as ANN SEENA VERACRUZ, individually
and as trustee for THE ANN SEENA JACOBSEN
LIVING TRUST DATED APRIL 4, 2002;
ASSURITY LIFE INSURANCE COMPANY, a
Nebraska company f/k/a WOODMEN ACCIDENT
AND LIFE COMPANY; SAFEWAY, INC., a
Delaware corporation; CENTURYLINK, INC., a
Louisiana corporation; PUGET SOUND
ENERGY, INC., a Washington corporation.
Respondents,
CITY OF SEATTLE,
Appellant,
SEATTLE CITY LIGHT, a Washington municipal
corporation; CITY OF BELLEVUE, a Washington
municipal corporation; KING COUNTY, a
Washington municipal corporation; and ALL
UNKNOWN OWNERS and UNKNOWN
TENANTS,
Respondents.
WIGGINS, J.—These four consolidated cases present the same question: May
Central Puget Sound Regional Transit Authority (Sound Transit) condemn the city of
Cent. Puget Sound Reg'l Transit Auth. v. WR-SRI 120th N. LLC, at al.
No. 94255-2 (consol. with No. 94406-7, No. 94530-6, and No. 95148-9)
Seattle's electrical transmission line easements located In the city of Bellevue to
extend Sound Transit's regional light rail system? For the following reasons, we affirm
the trial courts In part and remand for further proceedings consistent with this opinion.
We hold that Sound Transit has statutory authority to condemn Seattle's easements
and that the condemnation meets public use and necessity requirements. However,
we remand the cases to the trial court for consideration of the prior public use doctrine
and a finding on whether the two public uses are compatible.
FACTS AND PROCEDURAL HISTORY
I. Factual History
Sound Transit seeks to build a light rail line perpendicular to 124th Avenue NE
In Bellevue as part of Its East Link Extension. To do so. It has condemned several
properties located along 124th Avenue NE.
The properties at Issue here are owned by Seattle and consist of electrical
transmission line easements. Seattle acquired these easements 86 years ago
specifically for the purpose of building electrical transmission lines. Seattle's
easements run along the east and west sides of 124th Avenue NE, parallel to the
road, which runs north to south. Two of the four cases, WR-SRP and Safeway,^
Involve property on the west side of the road, where Seattle operates high-voltage
Cent. Puget Sound Reg'l Transit Auth. v. WR-SRI 120th N. LLC, No. 94255-2. Sound Transit
also refers to this parcel as the "Spring District I" property.
2 Cent. Puget Sound Reg'l Transit Auth. v, Safeway, Inc., No. 94406-7.
Cent. Puget Sound Reg'l Transit Auth. v. WR-SRI 120th N. LLC, at al.
No. 94255-2 (consol. with No. 94406-7, No. 94530-6, and No. 95148-9)
230-kllovolt transmission lines. The other two cases, Jacobsen^ and Sternoff,^ involve
property on the east side of the road, where Seattle does not currently operate any
transmission lines.®
The high-voltage 230-kilovolt transmission lines on the west side of 124th
Avenue NE are part of a larger electrical transmission line corridor running 100 miles
from electricity generating facilities on the Skagit River to an electrical substation in
Maple Valley. This corridor is also part of a larger, regional electrical transmission line
system that spans the West Coast.
Seattle does not currently operate or have definitive plans to build an electrical
transmission line on the east side of 124th Avenue NE. But Seattle contends that the
land will very likely be used to build a transmission line soon because of the growing
demand for electrical transmission line capacity in the region and the scarcity of
available corridors to locate such lines.
The parties dispute whether the condemnation will interfere with the existing
electrical transmission lines or render the remaining easements unusable. Seattle
claims that losing any of its west-side easements in the WR-SRI or Safeway cases
would effectively render the transmission lines and the corridor useless. Specifically,
Seattle argues that it would be unable to maintain mandatory clearances for its
3 Cent. Puget Sound Reg'l Transit Auth. v. Jacobsen, No. 95148-9.
Cent. Puget Sound Reg'l Transit Auth. v. Sternoff LP, No. 94530-6.
® For ease of reference, we refer to the different Clerk's Papers by the last three digits of the
cause number in our court, e.g., 552 CP for case no. 94255-2; 067 CP for case no. 94406-
7; 489 CP for case no. 95148-9; and 306 CP for case no. 94530-6.
Cent. Puget Sound Reg'l Transit Auth. v. WR-SRI 120th N. LLC, etal.
No. 94255-2 (consol. with No. 94406-7, No. 94530-6, and No. 95148-9)
transmission lines because Sound Transit has condemned Seattle's aerial easement
rights.
In contrast, Sound Transit maintains that its light rail project will not preclude
Seattle's future use of the easements. Specifically, Sound Transit alleges that Seattle
would be able to use a particular design® for transmission towers that would comply
with necessary clearances and conform to the new spatial limitations. Seattle does
not currently use this model for its transmission towers and strongly disagrees that it
is a feasible solution.
After Sound Transit resolved to acquire the properties for its East Link
Extension project, it collaborated with Bellevue regarding the final project alignment,
design, and construction process. To that end, Sound Transit and Bellevue executed
a memorandum of understanding and related agreements. Sound Transit agreed to
accommodate Bellevue's Bel-Red transportation improvement plan, which includes
widening 124th Avenue NE. To do so, Sound Transit agreed to transfer much of the
condemned property to Bellevue.
II. Procedural History
Seattle contested Sound Transit's condemnations by filing suit. The four trial
courts ruled in favor of Sound Transit. In each case, the trial court held that Sound
Transit had statutory authority to condemn Seattle's electrical transmission line
easements and that the condemnations met public use and necessity requirements.
® Sound Transit argues that Seattle could build a monopole with braced insulators on its
remaining easement.
Cent. Puget Sound Reg'l Transit Auth. v. WR-SRI 120th N. LLC, et al.
No. 94255-2 (consol. with No. 94406-7, No. 94530-6, and No. 95148-9)
In WR-SRI, Safeway, and Sternoff, the trial courts entered public use and
necessity (PU&N) judgments, finding that Sound Transit had statutory authority to
condemn the properties for its East Link Extension project. Additionally, the trial courts
found that the East Link Extension project was a public use and that the public interest
required the building of a light rail extension. Although Seattle submitted expert
testimony that Sound Transit's condemnation was incompatible with the continued
operation of the transmission lines, the trial courts failed to address the prior public
use doctrine or the compatibility of the two agencies' public uses of the land. In
Safeway, Seattle filed a motion for reconsideration that the public uses were
incompatible, but the court denied it without explanation.
In Jacobsen, the trial court also entered a PU&N judgment, finding that Sound
Transit had statutory authority to condemn public property for the East Link Extension.
However, unlike the preceding cases, the court addressed the prior public use
doctrine. It found that Seattle was not currently using the easements it holds on the
property and that Sound Transit's proposed use of the condemned property would not
destroy Seattle's future ability to use its remaining interests in the property for an
electrical transmission system. The parties presented competing declarations about
whether the uses would be compatible. The court found that the uses would be
compatible with one another.
Seattle appealed all four of these cases, and the parties requested that they be
consolidated. We granted review and consolidated the four cases to be determined at
the same time. At the time we accepted review, a fifth case based on the same issues
Cent. Puget Sound Reg'l Transit Auth. v. WR-SRI 120th N. LLC, et al.
No. 94255-2 (consol. with No. 94406-7, No. 94530-6, and No. 95148-9)
was pending before the trial court. Seattle filed a notice of direct appeal to this court
in that case. We granted review of that fifth case and stayed it pending this decision.
STANDARD OF REVIEW
We review matters of statutory interpretation de novo. State v. Armendariz, 160
Wn.2d 106, 110, 156 P.3d 201 (2007).
ANALYSIS
We affirm the trial courts in part and remand for a determination of whether
Seattle's and Sound Transit's uses are compatible with one another. First, we hold
that Sound Transit has statutory authority to condemn property owned by another
political subdivision. Second, we hold that Sound Transit's condemnation satisfies
PU&N requirements. Finally, we remand the cases for the trial courts to consider the
prior public use doctrine and make factual determinations about whether the uses are
compatible with one another.
I. Statutory Authority To Condemn Seattle's Easements
For the following reasons, we hold that Sound Transit has authority to condemn
property owned by another political subdivision, including Seattle's electrical
transmission line easements,
a. Principles of Statutory Interpretation
The State can condemn property for public use. Const, art. 1, § 16. The State
may also delegate this authority to its political subdivisions, such as cities or counties.
Pub. Utii. Dist. No. 1 of Okanogan County v. State, 182 Wn.2d 519, 534, 342 P.3d
Cent. Puget Sound Reg'l Transit Auth. v. WR-SRI 120th N. LLC, at al.
No. 94255-2 (consol. with No. 94406-7, No. 94530-6, and No. 95148-9)
308 (2015){Okanogan County PUD); A political subdivision's authority to condemn
property extends "only so far as statutorily authorized." Id. Therefore, the scope of the
eminent domain authority of a governmental unit is a matter of statutory interpretation.
Id.
Our first priority in statutory interpretation is to "ascertain and carry out the
Legislature's intent." Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10,
43 P.3d 4 (2002). We first examine the plain language of the statute "as '[t]he surest
indication of legislative intent.'" State v. Larson, 184 Wn.2d 843, 848, 365 P.3d 740
(2015)(alteration in original) (quoting State v. Ervin, 169 Wn.2d 815, 820, 239 P.3d
354(2010)). To interpret a statute's plain language, we examine the text of the statute,
"as well as 'the context of the statute in which that provision is found, related
provisions, and the statutory scheme as a whole.'" Id. (internal quotation marks
omitted)(quoting ErvIn, 169 Wn.2d at 820); see also Campbell & GwInn, 146 Wn.2d
at 11 (stating that "meaning is discerned from all that the Legislature has said in the
statute and related statutes which disclose legislative intent about the provision in
question"). We may not interpret a statute in a way that renders a portion
'"meaningless or superfluous.'" State v. K.L.B., 180 Wn.2d 735, 742, 328 P.3d 886
(2014) (quoting Jongeward v. BNSF Ry. Co., 174 Wn.2d 586, 601, 278 P.3d 157
(2012)). Nor may we interpret a statute in a manner that leads to an absurd result.
Estate of Bunch v. McGraw Residential Ctr., 174 Wn.2d 425, 433, 275 P.3d 1119
(2012).
Cent. Puget Sound Reg'l Transit Auth'v. WR-SRI 120th N. LLC, etal.
No. 94255-2 (consol. with No. 94406-7, No. 94530-6, and No. 95148-9)
In addition to these general principles of statutory interpretation,^ there are
specific rules that guide our interpretation of eminent domain statutes. First, statutes
delegating the power of eminent domain to a political subdivision must be strictly
construed. State ex rel. Devonshire v. Superior Court, 70 Wn.2d 630, 633, 424 P.2d
913 (1967). Consequently, authority to condemn public property "must be given in
express terms or by necessary implication." King County v. City of Seattle, 68 Wn.2d
688, 690, 414 P.2d 1016 (1966).
But, while we require grants of authority to condemn public property to be
express or necessarily implied, we may not construe an eminent domain statute so
strictly as to defeat the legislature's intent to grant condemnation power. City of
Tacoma v. Weicker, 65 Wn.2d 677, 683, 399 P.2d 330 (1965).® Therefore, when
interpreting eminent domain statutes, we must strike an appropriate balance between
strictly construing authority to condemn property and ensuring that our interpretation
does not defeat the legislative purpose to grant condemnation authority.
^ Seattle also argues that its status as a home rule charter city grants it "complete local self-
government in municipal affairs" and a special constitutional status with superiority to limited-
purpose agencies like Sound Transit. Br. of Appellant City of Seattle {WR-SRI) at 33. Seattle
contends that this argument is made in response to Sound Transit's "repeated suggestions
in this case that it is the paramount power in the Puget Sound region." Reply Br. of Appellant
City of Seattle (WR-SRI) at 27. However, Seattle falls to persuade us that Its status as a
home rule charter city is relevant to the statutory interpretation question before us. As a result,
we conclude that Seattle's constitutional status does not affect our interpretation of the
legislative authority granted to Sound Transit in RCW 81.112.080.
® See also In re Condemnation Proceedings of City of Seattle, 96 Wn.2d 616, 629, 638 P.2d
549 (Westlake)(1981)("[A] statutory grant of [eminent domain] power is not to be so strictly
construed as to thwart or defeat apparent legislative intent or objective."); Devonshire, 70
Wn.2d at 633("However.. . a statutory grant of such power is not to be so strictly construed
as to thwart or defeat an apparent legislative intent or objective.").
10
Cent. Puget Sound Reg'l Transit Auth. v. WR-SRI 120th N. LLC, et al.
No. 94255-2 (consol. with No. 94406-7, No. 94530-6, and No. 95148-9)
b. Express and Implied Authority To Condemn Property Owned by Other
Subdivisions of the State
To exercise the power of eminent domain against a subdivision of the State,
that power must be "express or necessarily implied." King County, 68 Wn.2d at 692.
This test comes from the early case of Seattle & Montana Railway Co. v. State, 1
Wash. 150, 151, 34 P. 551 (1893). Here, the authority for Sound Transit to condemn
Seattle's electrical transmission easements is express or, at the least, necessarily
implied.
i. Express Authority
To interpret the scope of Sound Transit's condemnation authority, we must first
examine the actual statutory language. See Dot Foods, inc. v. Dep't of Revenue, 166
Wn.2d 912, 919, 215 P.3d 185 (2009) ("Where statutory language is plain and
unambiguous, we ascertain the meaning of the statute solely from its language."). The
legislature granted Sound Transit express power to condemn all property necessary
to build a light rail system:
An authority'®^ shall have the following powers in addition to the general
powers granted by this chapter:
(2) To acquire by purchase, condemnation, gift, or grant . . . a//
lands, rights-of-way, property, equipment, and accessories necessary
for such high capacity transportation systems.
9'Authority" refers to "a regional transit authority" authorized under chapter 81.112 RCW.
RCW 81.112.020.
Sound Transit exercises Its right of eminent domain "In the same manner and by the same
procedure" as first class cities. RCW 81.112.080(2).
11
Cent Puget Sound Reg'l Transit Auth. v. WR-SRI 120th N. LLC, et al.
No. 94255-2 (consol. with No. 94406-7, No. 94530-6, and No. 95148-9)
RCW 81.112.080 (emphasis added). The use of the terms "all lands, rights-of-way,
property" Is a broad grant of power, which Includes public property owned by political
subdivisions of the State. But Sound Transit's authority to condemn public property Is
not limitless. While there may be no definitional limit to Its authority to condemn "all . . .
property," RCW 81.112.080(2), Sound Transit Is still subject to other statutory
limitations, as well as applicable common law doctrines.
As an example of limitations on Sound Transit, RCW 81.112.080(2) prohibits It
from condemning existing public transportation facilities or properties without the
consent of the condemnee. Sound Transit's authority Is also restricted by the prior
public use doctrine, which prohibits public entitles from condemning property that Is
already being put to a public use. Okanogan County PUD, 182 Wn.2d at 538-39. As
a result, while Sound Transit has authority to condemn public property, that authority
cannot extend to existing public transportation facilities or land that Is already being
put to a public use.
II. Necessarily Implied Authority
In addition to an express grant of authority, the same statute, RCW
81.112.080(2), gives Sound Transit the Implied power to condemn properties owned
by other subdivisions of the State. After giving Sound Transit the power to condemn
all lands, rIghts-of-way, and property, the statute continues:
Public transportation facilities and properties which are owned by any
city, county, county transportation authority, public transportation benefit
area, or metropolitan municipal corporation may be acquired or used by
an authority only with the consent of the agency owning such facilities.
Such agencies are hereby authorized to convey or lease such facilities
12
Cent. Puget Sound Reg'l Transit Auth. v. WR-SRI 120th N. LLC, et al.
No. 94255-2 (consol. with No. 94406-7, No. 94530-6, and No. 95148-9)
to an authority or to contract for their joint use on such terms as may be
fixed by agreement between the agency and the authority.
RCW 81.112.080(2). The meaning of this provision is clear: the only way Sound
Transit can acquire the property of another public transportation agency is with that
agency's consent. If Sound Transit did not have the power to condemn public
property, the legislature would not need to specify that the property of public
transportation facilities can be acquired only by consent. Without the power of
condemnation over public property, Sound Transit could obtain the property of any
public agency only by consent.
In other words, this section of the statute is superfluous if Sound Transit does
not have the power of condemnation over public agencies. We do not interpret
statutes in a manner that renders them partially or wholly superfluous. Cockle v. Dep't
of Labor & Indus., 142 Wn.2d 801, 809, 16 P.3d 583 (2001)."'^ Consequently, in order
to give meaning to the entire statute, this clause necessarily implies that Sound Transit
has the power to condemn public property unless that property is already being used
for public transportation.
A statute also grants an agency necessarily implied authority to condemn public
property when an interpretation that it lacks such authority would otherwise defeat the
legislative intent or objective of the statute. Devonshire, 70 Wn.2d at 633. For
example, in Newell v. Loeb, we concluded that a water commission had necessarily
See also Westlake, 96 Wn.2d at 629-30 ("[A] statute delegating eminent domain power to
a municipal corporation, containing both specific enumerations and general provisions,
should be interpreted so no portion of it is superfluous, void, or insignificant.").
13
Cent. Puget Sound Reg'l Transit Auth. v. WR-SRI 120th N. LLC, at al.
No. 94255-2 (consol. with No. 94406-7, No. 94530-6, and No. 95148-9)
Implied authority to condemn public land. 77 Wash. 182, 197-98, 137 P. 811 (1913).
The water commissions had statutory authority to condemn "necessary and needed
rights-of-way in the straightening, deepening, or widening, or otherwise improving of
such rivers, watercourses or streams." Laws of 1911, ch. 11, § 7(d). We noted that at
all times the water in those rivers and streams could be owned only by the State:
"'[T]hat the running water in a great navigable stream is capable of private ownership
is inconceivable.'" Newell, 77 Wash, at 201 (quoting United States v. Chandler-Dunbar
Water Power Co., 229 U.S. 53, 69, 33 S. Ct. 667, 57 L. Ed. 1063(1913)). Thus, when
the statute gave water commissions the right to condemn "rivers, watercourses or
streams," the statute necessarily implied that water commissions had the authority to
condemn public property, because the water in those rivers and streams could only
be public property. Id. at 199 (quoting Laws of 1911, ch. 11, § 7(d)).
Here, an interpretation that RCW 81.112.080 grants Sound Transit necessarily
implied authority to condemn public property fulfills the legislature's intent. The
legislature intended that Sound Transit plan and implement a high capacity
transportation system in the central Puget Sound area—spanning multiple
jurisdictions. RCW 81.112.010. The legislature recognized that a single agency,
Sound Transit, would be most effective at building such a system. Id. It is
inconceivable that the legislature did not know that building a massive
multijurisdictional transit system would require passage through public land. In fact,
the legislature explicitly requires Sound Transit to cooperate with other public entities
that provide transportation services. Id. Thus, the legislature granted Sound Transit
14
Cent. Puget Sound Reg'l Transit Auth. v. WR-SRI 120th N. LLC, et si.
No. 94255-2 (consol. with No. 94406-7, No. 94530-6, and No. 95148-9)
authority to condemn "all land," adding only the caveat that Sound Transit must obtain
consent to acquire other pubiic transportation land. RCW 81.112.080(2). This ensures
that the purpose of the statute, which is "the rapid development of alternative modes
of travel," Is not defeated. RCW 81.112.010.
For the foregoing reasons, we hold that Sound Transit has necessarily implied,
if not express, authority to condemn property owned by another political subdivision,
iii. Definition of Property in Eminent Domain Statutes
In response to these points, Seattle argues that we may not simply inquire into
the ordinary definition of"property" in the statute because "property" has a specialized
meaning in the eminent domain context. Specifically, Seattle argues that in an eminent
domain statute "property" necessarily means "private property." As a result, it argues
that it is insufficient to rely on the ordinary definition of those terms when interpreting
the scope of Sound Transit's condemnation authority. After considering Seattle's
authorities, we reject this argument.
When a legal term of art is used, we "turn[ ]to the technical definition of a term
of art even where a common definition is available." City of Spokane ex rel.
Wastewater Mgmt. Dep't v. Dep't of Revenue, 145 Wn.2d 445, 452, 38 P.3d 1010
(2002). Seattle argues that in two prior decisions we have interpreted the word
"12 There are multiple examples of terms of art that have a specialized meaning in certain legal
contexts. See, e.g., Foster v. Dep't of Ecology, 184 Wn.2d 465, 473, 362 P.3d 959 (2015)
("'Appropriation' is a term of art specifically used in the water rights context."); El Cerrito, Inc.
V. Ryndak, 60 Wn.2d 847, 854, 376 P.2d 528 (1962) ("In the law of adverse possession,
'hostile' does not mean animosity, but is a term of art which means that the claimant is in
possession as owner and not in a manner subordinate to the title of the true owner.").
15
Cent. Puget Sound Reg'l Transit Auth. v. WR-SRI 120th N. LLC, et al.
No. 94255-2 (consol. with No. 94406-7, No. 94530-6, and No. 95148-9)
"property" in eminent domain statutes more narrowly than its ordinary definition.
Seattle relies on these cases to argue that property means only "private property" in
the eminent domain context.
First, Seattle relies on our decision in King County, where we held that King
County lacked authority to condemn a road owned by Seattle. 68 Wn.2d at 688-89.
King County was authorized to condemn "land and property within the county for
public use." RCW 8.08.010. Interpreting this language, we held, "Nowhere in RCW
8.08.010 is there an express or necessarily implied legislative authority for counties
to condemn the property or rights of the state or any of its subdivisions." King County,
68 Wn.2d at 691-92. Accordingly, we concluded that "counties do not have the power
to acquire by condemnation property owned by the state or a subdivision thereof." Id.
at 692.
The King County case built on our decision in Seattle & Montana Railway, the
second case on which Seattle relies. In Seattle & Montana Railway, several railroad
corporations sought to condemn a right-of-way on state tidelands. 7 Wash, at 151.
The railroads had "a right to enter upon any land, real estate, or premises," and the
authority to condemn "so much of said land, real estate, or premises" as was
necessary to construct rail lines. Hill's Gen. Stat. §§ 1569, 1570. We held that the
railroad corporations did not have authority to condemn public land under this statute:
Our eminent domain act, as applied to railroads, must be construed, as
are all such acts, as having regard only to the taking of private property,
unless there is either express or clearly implied authority to extend them
further.
16
Cent. Puget Sound Reg'l Transit Auth. v. WR-SRI 120th N. LLC, at al.
No. 94255-2 (consol. with No. 94406-7, No. 94530-6, and No. 95148-9)
Seattle & Montana Ry.,-7 Wash, at 151 (citations omitted). We did not find any
express or implied authority in the statute empowering railroad corporations to
exercise eminent domain over public property. Id. at 153.
Neither King County nor Seattle & Montana Railway held that the word
"property" in an eminent domain statute is necessarily defined as private property.
Instead, Seattle & Montana Railway created the test, which was applied in King
County, that the authority to condemn public property must be expressly granted or
necessarily implied. Id. at 151. We apply that same test here and conclude that there
is express and/or implied authority for Sound Transit to condemn Seattle's property.
An additional factor distinguishes this case from Seattle & Montana Railway, in
which privately owned railroad companies attempted to condemn state-owned
tidelands. Id. at 151-52. In contrast, Sound Transit does not seek to condemn state-
owned land, but the property of a fellow municipal corporation. The State, by virtue of
its position as sovereign, enjoys more privileges and protections when it comes to
eminent domain than those enjoyed by its political subdivisions. See State ex rel.
Eastvold V. Superior Court, 44 Wn.2d 607, 608,^269 P.2d 560 (1954)("[T]he state,
acting as a sovereign, has many inherent powers not possessed by municipal
corporations, and few of their limitations."). We also noted in Seattle & Montana
Railway that "the public will have no practical enjoyment of any part of [the railway]
except at street crossings." 7 Wash, at 155. But here, Sound Transit is building a
system whose sole purpose is to benefit the public. RCW 81.112.010. As a result, the
17
Cent. Puget Sound Reg'l Transit Auth. v. WR-SRI 120th N. LLC, et al.
No. 94255-2 (consol. with No. 94406-7, No. 94530-6, and No. 95148-9)
concerns that we had In Seattle & Montana Railway are simply not present in this
case.
Finally, Sound Transit's grant of condemnation authority is different from the
authority granted to King County and the railroad corporations. Unlike King County in
King County, which had authority "to condemn land and property," RCW 8.08.010, or
the railroad corporations in Seattle & Montana Railway, which had authority to "enter
upon any land, real estate, or premises . . . [and] appropriate so much of said land,"
Hill's Gen. Stat. §§ 1569, 1570, Sound Transit has authority to condemn "all lands,
rights-of-way, property," RCW 81.112.080 (emphasis added). Sound Transit argues
that "all" is a sufficient grant of authority to condemn public lands. We agree, but
explain below that there may be limitations on the power of eminent domain, such as
the prior public use doctrine, discussed infra,
a. No Absurd Results
Seattle also claims that absurd consequences will result if we interpret RCW
81.112.080 as granting Sound Transit authority to condemn property owned by
another political subdivision. We must interpret statutes to avoid absurd results. See,
e.g., Ervin, 169 Wn.2d at 823-24 ("It is true that we presume the legislature does not
intend absurd results and, where possible, interpret ambiguous language to avoid
such absurdity."). Here, none of Seattle's predicted consequences sink to the level of
absurdity.
First, Seattle argues that interpreting "all . . . property," RCW 81.112.080(2), to
include public property would permit Sound Transit to condemn any and all public
18
Cent. Puget Sound Reg'l Transit Auth. v. WR-SRI 120th N. LLC, et si.
No. 94255-2 (consol. with No. 94406-7, No. 94530-6, and No. 95148-9)
land, including the Washington State Capitol, tidelands, highways, water treatment
facilities, etc. Seattle maintains that the legislature could not have intended to convey
such broad condemnation authority to Sound Transit. We relied on similar reasoning
in Seattle & Montana Railway, where we found that it would be inappropriate to
interpret a statute in a way that authorized railroads to condemn public property:
[B]ecause a railroad is authorized to enter upon and condemn "any" land
for its tracks, depots, shops, round houses, etc., it could by serving notice
upon the auditor of Thurston county, take the entire 10 acres upon which
the state capitol stands for a depot and shops.
7 Wash, at 152. Ultimately, we rejected an interpretation that would grant such broad
condemnation authority to the railroad corporations.
Even if Sound Transit has broad authority to condemn public property, its
authority is still constrained by other applicable doctrines, such as the prior public use
doctrine.''^ The prior public use doctrine bars the condemnation of property that is
already being put to a public use unless both uses are compatible. Okanogan County
PUD, 182 Wn.2d at 538-39. Here, Seattle's examples all constitute public property
that is being put to a public use. Under the prior public use doctrine, Sound Transit
would not be able to condemn Seattle's example properties even if it possesses the
authority to condemn public property generally. As a result, this is not a realistic result,
let alone an absurd result.
Second, Seattle argues that if we interpret "all . .. property" as an express grant
of authority to condemn public lands, we would implicitly grant several other political
"'3 The prior public use doctrine is discussed in further detail infra.
19
Cent. Puget Sound Reg'l Transit Auth. v. WR-SRI 120th N. LLC, et al.
No. 94255-2 (consol. with No. 94406-7, No. 94530-6, and No. 95148-9)
subdivisions, like mosquito control districts, the power to condemn public land. See
RCW 17.28.160(3)(granting mosquito control districts the authority to condemn "any
lands, rights-of-way, easements, property, or material")."''^
Again, the authority of other political subdivisions is constrained by applicable
doctrines such as the prior public use doctrine. In addition, the authority to condemn
public property must be expressly given or necessarily implied. King County, 68
Wn.2d at 691-92. We do not address either element as it relates to political
subdivisions other than Sound Transit.
Here, Sound Transit has been granted the authority to acquire private property
and property owned by another political subdivision in order to construct a regional
transit system; however, that authority is not limitless or without safeguards and does
not sink to the level of absurdity.
II. Public Use and Necessity
Having determined that Sound Transit has statutory authority to condemn
property owned by another political subdivision, we now analyze whether the
condemnation here meets PU&N requirements. When evaluating PU&N, we analyze
two"'® things; first, we must decide whether the proposed use is public, and second,
we must determine whether the property to be acquired is necessary for the public
See also RCW 87.03.140 (granting irrigation districts the right to condemn "all lands,
waters, water rights, and other property").
While many of our cases refer to the PU&N test as having three steps, usually the last two
considerations are analytically collapsed into a single "necessity" inquiry. See, e.g., Pub. Util.
Dist. No. 2 of Grant County v. N. Am. Foreign Trade Zone Indus., LLC, 159 Wn.2d 555, 573,
575-78, 151 P.3d 176 (2007).
20
Cent. Puget Sound Reg'l Transit Auth. v. WR-SRI 120th N. LLC, et al.
No. 94255-2 (consol. with No. 94406-7, No. 94530-6, and No. 95148-9)
Interest. Pub. Util. Dist. No. 2 of Grant County v. N. Am. Foreign Trade Zone Indus.,
LLC, 159 Wn.2d 555, 573, 575-78, 151 P.3d 176 (2007). A legislative determination
of necessity is '"conclusive in the absence of proof of actual fraud or arbitrary and
capricious conduct, as would constitute constructive fraud.'" Id. at 575-76 (quoting In
re Condemnation Pet. of Seattle Popular Monorail Auth., 155 Wn.2d 612, 629, 121
P.3d 1166 (2005)).
Here, Sound Transit's proposed use of the property for public transportation is
a public use. There is no evidence of arbitrary and capricious action by Sound Transit,
nor is there proof of actual fraud. As a result, we hold that Sound Transit's
condemnation meets the requirements of PU&N.
a. Proposed Public Use
"The question of whether the use is really a public use is a judicial
determination." Id. at 573. Here, there is no question that Sound Transit's proposed
use of the property—public transportation—constitutes a public use. Seattle Popular
Monorail Auth., 155 Wn.2d at 630 ("[l]t is undisputed that the use to which the property
is to be put—public transportation—is a clear public use. Indeed, public transportation
has been determined to be public use for nearly 100 years in Washington." (citation
omitted))."'® As a result, we hold that Sound Transit's proposed use to build a light rail
is a public use.
■I® See also Devonshire, 70 Wn,2d at 636 ("Public transportation has long been recognized
as a public use within the contemplation of the power of eminent domain.").
21
Cent. Puget Sound Reg'l Transit Auth. v. WR-SRI 120th N. LLC, at si.
No. 94255-2 (consol. with No. 94406-7, No. 94530-6, and No. 95148-9)
b. Necessary for the Public Purpose
"[W]hether the condemnation is necessary is a legislative question." Cent.
Puget Sound Reg'l Transit Auth. v. Miller, 156 Wn.2d 403, 417, 128 P.3d 588(2006).
Consequently, "[a] legislative body's determination of necessity is conclusive unless
there is proof of actual fraud or arbitrary and capricious conduct amounting to
constructive fraud or the government fails to abide by the clear dictates of the law." id.
We review the trial judge's factual findings supporting public necessity under our
substantial evidence standard. Id. at 419. "Substantial evidence is viewed in the light
most favorable to the respondent and is evidence that would 'persuade a fair-minded,
rational person of the truth of the finding.'" Id. (quoting State v. Hill, 123 Wn.2d 641,
644, 870 P.2d 313 (1994)).
Here, there is no evidence of actual fraud or arbitrary and capricious conduct
amounting to constructive fraud. Nor does Seattle allege that Sound Transit has acted
fraudulently or in an arbitrary and capricious fashion. Instead, Seattle argues that
Sound Transit has failed to abide by the clear dictates of the law by condemning
excess land that is not "necessary for.. . high capacity transportation systems." RCW
81.112.080(2). Specifically, Seattle argues that 88 percent of the land that Sound
Transit is condemning will be transferred to Bellevue for road construction.
Generally, we avoid questioning the condemning authority's determination "as
to the type and extent of property interest necessary to carry out the public purpose."
Seattle Popular Monorail Auth., 155 Wn.2d at 630 (emphasis added). In addition,
"necessity" in the eminent domain context does not mean absolute necessity:
22
Cent. Puget Sound Reg'l Transit Auth. v. WR-SRI 120th N. LLC, at al.
No. 94255-2 (consol. with No. 94406-7, No. 94530-6, and No. 95148-9)
The word "necessary," when used in or in connection with eminent
domain statutes, means reasonable necessity, under the circumstances
of the particular case. It does not mean absolute, or indispensable, or
immediate need, but rather its meaning is interwoven with the concept of
public use and embraces the right of the public to expect and demand
the service and facilities to be provided by a proposed acquisition or
improvement. Reasonable necessity for use in a reasonable time is all
that is required.
Welcker, 65 Wn.2d at 683-84 (citations omitted). In particular, we have held that site
selection is not subject to judicial interference: "[Sjite selection is essentially a
legislative question, not a judicial one. Courts give especial deference to agency site
selection decisions because courts 'are not trained or equipped to pick the better
route, much less design and engineer the project.'" Miller, 156 Wn.2d at 421-22
(quoting Deaconess Hosp. v. Wash. State Highway Comm'n,66 Wn.2d 378, 405,403
P.2d 54 (1965)).
Here, Sound Transit has shown that its condemnation is "necessary" for its light
rail project. It adopted resolutions authorizing the condemnation as needed for the
East Link Extension. To accommodate the light rail crossing, Bellevue must construct
a bridge over the tracks. The other road improvements will serve the needs of the
public for the future and ensures that the initial design will meet the future development
goals of Bellevue. Because the project is undoubtedly a public use, we do not and
should not question the substantive aspects of the project. As a result, we hold that
Sound Transit's condemnation meets public necessity requirements.
23
Cent. Puget Sound Reg'l Transit Auth. v. WR-SRI 120th N. LLC, etal.
No. 94255-2 (consol. with No. 94406-7, No. 94530-6, and No. 95148-9)
ill. Prior Public Use Doctrine
The final question we must answer is whether the prior public use doctrine bars
Sound Transit's condemnation of Seattle's electrical transmission line easements.
Under the prior public use doctrine, a condemnor may not condemn property already
being used for a public purpose if the proposed use "will either destroy the existing
[public] use or interfere with it to such an extent as is tantamount to destruction."
Okanogan County PUD, 182 Wn.2d at 538-39. However,"the prior public use doctrine
does not apply when the prior use is compatible with the proposed use." Id. at 540.
Thus, we must decide two things:(1)whether Seattle's use of the properties is a public
use and, if so,(2) whether Sound Transit's proposed use is compatible with Seattle's
use.
Here, Seattle's use of the electrical transmission line easements constitutes a
prior public use. However, three of the four trial courts failed to address whether Sound
Transit's proposed use and Seattle's current use of the properties are compatible. The
compatibility of an electrical transmission line and a light rail is a factual question
suited for a trial court, not an appellate court. As a result, we remand the issue to the
trial court for further proceedings,
a. Prior Pubiic Use
First, we must decide whether Seattle's current use of the properties is for a
public purpose. "The generation and distribution of electric power has long been
recognized as a public use by this court." Carstens v. Pub. Util. Dist. No. 1 of Lincoln
County, 8 Wn.2d 136, 143, 111 P.2d 583 (1941). Thus, Seattle's operation of
24
Cent. Puget Sound Reg'l Transit Auth. v. WR-SRI 120th N. LLC, et at.
No. 94255-2 (consol. with No. 94406-7, No. 94530-6, and No. 95148-9)
transmission lines on the WR-SRI property and the Safeway property to distribute
electricity is a public use.
However, Seattle does not currently operate any electrical transmission lines
on the Jacobsen property or the Sternoff property. Nor does Seattle have any defined
plans to build a line on those properties in the near future. Because Seattle does not
currently transmit electricity on these properties, Sound Transit argues that Seattle is
not using them for a public purpose.
Seattle disagrees, arguing that prior case law establishes that even though
there are no current transmission lines on the properties, the acquisition of property
for the purpose of generating and distributing electricity is a public use. See Pub. Util.
Diet. No. 1 of Chelan County v. Wash. Water Power Co., 43 Wn.2d 639, 643, 262
P.2d 976 (1953) ("The appropriation of water and facilities for the generation of
electrical power, to be sold to the public generally by an entity entitled by statute so to
do, is a public use."); State ex rel. Nw. Elec. Co. v. Superior Court, 28 Wn.2d 476,
483, 183 P.2d 802(1947)("We have uniformly held that the acquisition of properties
by a public utility district, for the purpose of furnishing electricity to the public, is a
public use."): Brady v. City of Tacoma, 145 Wash. 351, 356, 259 P. 1089 (1927)
("Under modern conditions, the city's plant is just as much a necessity to the
community as is a railroad, and the production and distribution of electricity is a public
use.").
However, these prior cases all involved a determination of whether generating
and distributing electricity is a public use such that the party intending to distribute the
25
Cent. Puget Sound Reg'l Transit Auth. v. WR-SRI 120th N. LLC, at al.
No. 94255-2 (consol. with No. 94406-7, No. 94530-6, and No. 95148-9)
electricity had the power to condemn the land for that use. Here, the question Is
different: Is property previously acquired for the purpose of distributing electricity, but
not currently being used for that purpose, being put to a public use?
To be considered a public use, the prospective public use must be concrete
and nonspeculatlve: "Reasonable expectation of future needs and a bona fide
Intention of using It for such purposes within a reasonable time are required to protect
property from condemnation." State ex rel. Poison Logging Co. v. Superior Court, 11
Wn.2d 545, 567, 119 P.2d 694 (1941). Further, '"[a] future use that rests upon
conjecture or a contingency should yield to the more Immediate necessity of the
company seeking condemnation.'" id. at 567-68(quoting 18 Am. Jur. Eminent Domain
§ 96 (1938)). For example. In Poison, a logging company sought to condemn a right-
of-way over property owned by a rival logging company, id. at 549-50. The rival
logging company objected to the condemnation. Insisting that It was going to use the
same land to build a road. id. at 548-49. We held that the logging company had
authority to condemn the rival logging company's land. id. at 567. We noted that
despite the contention that the rival logging company might use the land again In the
future, all evidence Indicated that the land had been "abandoned" and that "there was
not the remotest probability" that the land would be used by the rival logging company
for a road. Id. at 563.
Yet, "mere nonuse[ ]" does not necessarily result In abdication of a public
entity's property rights. Nicomen Boom Co. v. N. Shore Boom & Driving Co., 40 Wash.
315, 330, 82 P. 412(1905). Instead, the question Is one of Intent—whether the entity
26
Cent. Puget Sound Reg'l Transit Auth. v. WR-SRI 120th N. LLC, at si.
No. 94255-2(consol. with No. 94406-7, No. 94530-6, and No. 95148-9)
has a bona fide intention of using the land for a public purpose in a reasonable amount
of time. Id. As a result, "courts are not justified in fixing a limit at which mere failure to
construct shall be held to be an abandonment." Id. Instead, "[t]he state has the right
to proceed in its own time and in its own way to improve its property, and its
[reasonable] delay in so doing can convey no legal right in the property to others which
such others would not have possessed had the delay not have occurred." State v.
Superior Court, 91 Wash. 454, 460, 157 P. 1097(1916).
Here, despite the land not currently being used to transmit electricity, we hold
that it is being put to public use. Seattle's easement was acquired 86 years ago for
the express purpose of transmitting electricity. As amici point out, "[ejlectric utilities
have to plan long term for future needs. Providing electricity is an extremely capital
intensive business, and requires long range planning for future growth and future
infrastructure. . . . Most electric utilities use twenty-year or longer time horizons." Br.
of Amicus Curiae at 10-11. For example, the Twisp transmission line that was at issue
in Okanogan County PUD was announced in 1996 and ended with a decision from
this court in 2015. Id. at 11 n.17. Amici further explain that "[tjhere is unique and
irreplaceable value in an electric transmission corridor," and because assembling the
necessary land and property rights to create an electric transmission corridor can be
very difficult, "most are acquired with necessary future requirements" in mind. Id. at
15. We recognized this reality over a century ago:
It is manifest that any public service corporation, when installing an
electric plant, must anticipate future as well as present needs of the
public . . . . If this could not be done, the logical result would be that,
27
Cent. Puget Sound Reg'l Transit Auth. v. WR-SRI 120th N. LLC, at al.
No. 94255-2(consol. with No. 94406-7, No. 94530-6, and No. 95148-9)
every time it secured additional public service contracts or was called
upon to furnish additional power for an undoubted public use, it would be
compelled to institute further condemnation proceedings, acquire
additional property, enlarge its plant, increase its output, and thus meet
the increased demands for public use. . . .[S]uch a procedure would be
unbusinesslike and impracticable.
State exrel. Lyie Light, Power & Water Co. v. Superior Court, 70 Wash. 486, 490,127
P. 104(1912).^^
For these reasons, despite having no immediate plans to begin building a
transmission line, it is clear that Seattle intends to use this land to transmit electricity,
the public use for which it was acquired. Given the complex logistics of building an
electric transmission corridor, Seattle's clear intention to use this land for that purpose
constitutes a "[r]easonable expectation of future needs" and a "bona fide intention" of
using the land to transmit electricity. Poison, 11 Wn.2d at 567. Therefore, we hold that
all four properties—those on which an electrical transmission iine is already built, and
those currently unused—are being put to a public use.
b. Compatibiiity
Having concluded that Seattle's easements are being put to a public use, we
must now decide whether Sound Transit's proposed public use is compatible with
Seattle's use. "[T]he prior public use doctrine does not apply when the prior use is
compatible with the proposed use." Okanogan County PUD,182 Wn.2d at 540. Thus,
See also Nicomen Boom Co., 40 Wash, at 329-30 (concluding that public service
corporations "may anticipate future necessities and may, for that purpose, hold territory not
in actual use, to the exclusion of other companies").
28
Cent. Puget Sound Reg'l Transit Auth. v. WR-SRI 120th N. LLC, et al.
No. 94255-2 (consol. with No. 94406-7, No. 94530-6, and No. 95148-9)
whether the prior public use doctrine applies here depends on the compatibility of the
two uses.
Although the question of compatibility is different from the question of public
necessity in condemnation proceedings, similar considerations are involved. Thus,
we consider the question of compatibility, like the question of public necessity, to be
one for the trial court. See Miller, 156 Wn.2d at 419 (noting it is for the trial judge to
weigh the evidence supporting public necessity). "As the party challenging the trial
court's factual findings," Seattle has "the burden to prove they are not supported by
substantial evidence." Blackburn v. Dep't of Sac. & Health Servs., 186 Wn.2d 250,
256, 375 P.3d 1076(2016). A trial court's factual findings are supported by substantial
evidence when there is sufficient evidence '"to persuade a rational, fair-minded person
of the truth of the finding.'" Id. (internal quotation marks omitted)(quoting Hegwine v.
Longview Fibre Co., 162 Wn.2d 340, 353, 172 P.3d 688 (2007)). When there is
substantial evidence supporting a trial court's factual findings, we '"will not substitute
[our]judgment for that of the trial court even though [we] might have resolved a factual
dispute differently.'" id.(quoting Sunnyside Valley Irrig. Dist. v. Dickie, 149 Wn.2d 873,
879-80, 73 P.3d 369 (2003)).
For example, we held that two public uses were compatible in City of Tacoma
V. State, 121 Wash. 448, 209 P. 700 (1922). Tacoma sought to condemn state land
along the Skokomish River to build a hydroelectric plant. Id. at 449. As part of its
condemnation plan, Tacoma needed to divert river water away from a state fish
hatchery. Id. at 453. The State argued that the diversion would destroy the utility of
29
Cent. Puget Sound Reg'l Transit Auth. v. WR-SRI 120th N. LLC, et at.
No. 94255-2 (consol. with No. 94406-7, No. 94530-6, and No. 95148-9)
the fish hatchery. Id. We held that the fish hatchery was a public use, but there was
sufficient evidence that even with the diversion, there would be enough water for the
hatchery operation. Id. As a result, we held that the two public uses were compatible
with one another. Id.
In contrast, uses are incompatible "when the proposed use will either destroy
the existing use or interfere with it to such an extent as is tantamount to destruction."
Okanogan County PUD, 182 Wn.2d at 538-39 (quoting 1A Julius L. Sackman,
Nichols on Eminent Domain § 2.17, at 2-58(3d ed. 1964)). For example, in NIcomen,
40 Wash. 315, we concluded that two public uses were incompatible with one another.
North Shore, a logging company, sought to construct a boom on the same portion of
the river where Nicomen, a rival logging company, already operated a boom. Id. at
321. The evidence showed that the two competing booms would interfere with one
another to an extent where both could not operate at the same time. Id. at 323. For
instance. North Shore's boom would divert all of Nicomen's logs into North Shore's
boom. Id. As a result, we held that the two booming operations could not "exist
together." Id. at 334.
Here, in WR-SRI, Safeway, and Sternoff, Seattle presented expert declarations
declaring that the two uses were incompatible with one another. 552 Clerk's Papers
(CP) at 1071-73 (expert deposition stating that Seattle would be prevented from
operating electrical lines, that there is insufficient room to relocate the wires, and that
the condemnation "effectively sever[s]the Transmission Line and renders it useless");
306 CP at 916 (expert deposition stating that "the net effect of the condemnation
30
Cent. Puget Sound Reg'l Transit Auth. v. WR-SRI 120th N. LLC, et al.
No. 94255-2 (consol. with No. 94406-7, No. 94530-6, and No. 95148-9)
would be to render the Transmission Line Easements unusable for their intended
purpose and to sever the larger Transmission Line Corridor"). Sound Transit chose
not to offer any evidence on the issue of compatibility.''® Despite Seattle's evidence,
the trial courts in WR-SRI, Safeway, and Sternoff made no findings regarding whether
Sound Transit's proposed use was compatible with Seattle's prior public use.
In Jacobsen, however, the trial court made a finding of fact regarding
compatibility, stating, "[E]ven if the City of Seattle is deemed to be engaged in a
present public use of its easements, that use is consistent with Petitioner's proposed
use." 489 CP at 1393. The trial court did not offer any further explanation of this
finding. We thus turn to the evidence that the parties presented of compatibility.
Sound Transit presented a declaration of a civil engineer with "experience
consulting on projects that involve engineering issues relating to electrical
transmission systems." 489 CP at 471. This engineer had knowledge of Seattle's
"engineering preferences and requirements relating to the construction of monopoles
for its electrical transmission systems." The engineer stated that after the
"I® Sound Transit's attorney submitted a declaration in Safeway that "[i]t has always been
Sound Transit's intention to restore, and thereby preserve, rights over the subject property
through a residual electrical transmission easement that allows the City of Seattle ('Seattle')
continued use of its existing electrical transmission facilities across the property." 067 CP at
355; see also 489 CP at 906-06 (same); 306 CP at 987-88. Sound Transit argues that this
qualifies as a CR 2(A)stipulation that the two public uses are compatible. However, the actual
condemnation application submitted by Sound Transit seeks to acquire Seattle's property
"free and clear of any right, title and interest of all Respondents [property owners]." 552 CP
at 6. Even assuming that Sound Transit intends to restore Seattle with a "residual electrical
transmission easement," Seattle argues that this will be Impossible because the project as
planned will leave insufficient room for Seattle to comply with mandatory industry clearance
requirements. See, e.g., 067 CP at 355, 285-86. Further proceedings on the question of
compatibility are needed.
31
Cent. Puget Sound Reg'l Transit Auth. v. WR-SRI 120th N. LLC, at at.
No. 94255-2 (consol. with No. 94406-7, No. 94530-6, and No. 95148-9)
condemnation, Seattle would be required to use a transmission tower "that is widely
accepted in the industry, but is not. . . currently used by Seattle." 489 CP at 473.
In contrast, Seattle presented competing declarations of its employees. One
employee stated that the condemnation "would both conflict with and bisect the
Transmission Line Easement." 489 CP at 393. This employee further stated that the
condemnation "potentially mak[es] it impossible for Seattle to locate the towers
necessary to support a future transmission line and/or interfere with Seattle's ability
to access the towers supporting its existing transmission line for repairs, maintenance,
or expansion." 489 CP at 393-94. Another employee stated that "safety risks and
operational issues" made the alternate tower design suggested by Sound Transit
"unsuitable." 489 CP at 868. He further stated that the condemnation "would create a
break" in the transmission line corridor, and that there would be "insufficient space"
for Seattle to make use of the easement. 489 CP at 868-69.
Based on this evidence, we conclude that the trial court's finding regarding
compatibility in Jacobsen was not supported by substantial evidence. A single
deposition, whose conclusions are challenged by two competing depositions, is
insufficient to persuade a fair-minded person that the trial court's finding was correct.
See Blackburn, 186 Wn.2d at 256. There was no trial for the trial court to weigh the
credibility of the competing declarations. The issue of compatibility in this case is
highly technical, and there is a factually correct answer. Either these two uses are
compatible or they are not. This is a matter for the trial court to determine after hearing
32
Cent. Puget Sound Reg'l Transit Auth. v. WR-SRI 120th N. LLC, at al.
No. 94255-2 (consol. with No. 94406-7, No. 94530-6, and No. 95148-9)
evidence. As a result, we remand all four cases for the trial court to determine if Sound
Transit's proposed use is compatible with Seattle's use of the property.
c. When Two Public Uses Are Incompatible
We now take this opportunity to provide additional guidance to the trial court on
remand in the event that it concludes the two uses as proposed are incompatible. If a
court determines that two public uses are incompatible, "then the issue may be about
the superiority of rights between competing public uses." Okanogan County PUD, 182
Wn.2d at 543. In that situation, we have said that we consider the following factors:
'"the present or prospective use of such property by the condemnee, the
prospective use thereof by the condemn[o]r, the comparative
advantages flowing to the public as between the ownership thereof by
the condemnee and condemn[o]r, and the comparative advantage and
disadvantages flowing to the condemnee and condemn[o]r by the
ownership of such property.'"
id. (quoting State ex rel. Wash. Boom Co. v. Chehalis Boom Co., 82 Wash. 509, 514,
144 P. 719 (1914)). This test was established over a century ago, and we have never
had the opportunity to apply it in practice. Further, we recently called the test into
question in Okanogan County, noting that "whether [one public use] should outweigh
the interests of providing electricity to certain areas is a matter of public policy
reserved for the legislature, not the court." Id. at 544.
The sole case in which we have found two public uses to be incompatible with
one another and ordered a remedy was decided before we established this test. In
that case, we concluded that two logging companies attempting to construct booms
on the same area of a river would interfere with one another to the extent that they
33
Cent. Puget Sound Reg'l Transit Auth. v. WR-SRI 120th N. LLC, et al.
No. 94255-2 (consol. with No. 94406-7, No. 94530-6, and No. 95148-9)
could not coexist. Nicomen, 40 Wash, at 334. We held that the prospective logging
company had to restrict Its booming operations to an area outside the existing logging
company's operations. Id. In other words, the remedy that we prescribed In a case of
Incompatibility was an order that the prospective public use be restricted to an extent
that the current public use would be compatible with It. We are persuaded that this Is
an appropriate remedy In situations where two public uses as proposed are found to
be Incompatible with one another.
This solution avoids the dangers Inherent In "judicial legislating." Carnation Co.
V. Hill, 115 Wn.2d 184, 189, 796 P.2d 416 (1990). When courts delve Into the realm
of pollcymaking, they run the risk of "'mlstak[lng] their own predilections for public
policy which deserves recognition at law.'" Green v. Ralee Eng'g Co., 19 Cal. 4th 66,
80, 960 P.2d 1046 (1998)(quoting Gantt v. Sentry Ins., 1 Cal. 4th 1083, 1095, 824
P.2d 680 (1992)). As we noted In Okanogan County PUD, we are In no position to
determine whether one public use outweighs the Interests of another public use. 182
Wn.2d at 544. The remedy also enables the public to enjoy both purposes to the
greatest extent possible. Here, It Is reasonable to hope that both Sound Transit and
Seattle may design their projects to conform with and promote one another—In a
manner similar to that which Sound Transit and Bellevue have done.
In sum. In the event that the trial courts conclude that Sound Translt's proposed
public use Is Incompatible with Seattle's current public use, they should order that
Sound Transit's proposed public use be modified to an extent necessary to enable the
two uses to be compatible with one another.
34
Cent. Puget Sound Reg'l Transit Auth. v. WR-SRI 120th N. LLC, et al.
No. 94255-2 (consol. with No. 94406-7, No. 94530-6, and No. 95148-9)
CONCLUSION
In conclusion, Sound Transit has statutory authority to condemn property
owned by another political subdivision of the State and the condemnation for the East
Link Extension is a public use meeting the test of public necessity. However, the trial
courts failed to address the prior public use doctrine and enter findings about the
compatibility of the two entities' public uses. As a result, we are unable to determine
whether Seattle's use and Sound Transit's use are compatible with one another.
Consequently, we affirm in part and remand these cases for consideration of the prior
public use doctrine, a determination of whether the public uses are compatible with
one another, and any other necessary proceedings consistent with this opinion.
35
Cent. Puget Sound Reg'l Transit Auth. v. WR-SRI 120th N. LLC, at ai.
No. 94255-2 (consol. with No. 94406-7, No. 94530-6, and No. 95148-9)
WE CONCUR.
'T r^AA WaAMA.i , (j
V\l^ 7
\[\nMAeAY\
/a
36