Central Puget Sound Regional Transit Authority v. Miller

¶43 (dissenting) — The purpose of notice statutes is to fairly and sufficiently inform those who may be affected by government action of the nature and character of a proposed action so they may intelligently prepare for the public hearing on the action. Nisqually Delta Ass’n v. *424 City of DuPont, 103 Wn.2d 720, 727 , 696 P.2d 1222 (1985). In this case, Kenneth and Barbara Miller and their construction company, Miller Building Enterprises, Inc., knew for years that they might be affected by Central Puget Sound Regional Transit Authority’s (Sound Transit) rail project in Tacoma. In July 2001, the Millers even allowed the transit agency to survey and take soil samples from some of their land that was potentially on the project’s path. That does not mean, however, that the Millers were “fairly and sufficiently” apprised that on June 26, 2003, the Sound Transit board would consider a resolution authorizing condemnation of their land. Because I believe that Sound Transit did not adequately inform affected parties before authorizing condemnation in this case, I dissent.

Alexander, C.J.

*424 ¶44 Prior notice that the condemnation resolution at issue would be considered was limited to a single item on the June 26, 2003, meeting agenda, posted only on the agency’s web site. That single agenda item referred to acquiring “certain real property interests” by negotiated purchase or condemnation, “as necessary for the construction of the Lakewood and South Tacoma Commuter Rail Stations.” Ex. 12. And while the Miller property was described in Exhibit A to the proposed resolution, no specific locations were mentioned on the agenda posted electronically for public notice purposes. To say “Lakewood and South Tacoma” hardly narrows the possibilities. Therefore, at best, the meeting notice merely alerted the Internet-attentive people within the affected area to seek more details elsewhere. At worst, it utterly failed to apprise anyone lacking Internet access of the existence of the resolution.

¶45 “[A] proper hearing can be no greater protection for the public and the individual landowner than the opportunity afforded by the notice to take an informed part therein.” Glaspey & Sons, Inc. v. Conrad, 83 Wn.2d 707, 713 , 521 P.2d 1173 (1974). When interested parties are ill-informed of government proposals, “the public at large will be deprived of an ‘informed’ resolution of problems that *425 are the subject of the hearing.” Id. at 713 . Here, Sound Transit does not point to any evidence in the record indicating that the Millers, or any other parties interested in the condemnation plan, were known to have access to the Internet. Yet the agency says it routinely relied solely on Internet postings to announce meeting agendas. 11 In doing so, it risked excluding a segment of the population from contributing to “an informed resolution” of station siting.

¶46 While I agree with the majority that the relevant statute, RCW 35.22.288, does not necessarily require notice to be published in a newspaper, I disagree that the Internet-only notice in this case met the intent of the statute. It is highly optimistic to expect a landowner’s clicks of the computer mouse to lead, at the right time and on the right site, to a posted proposal bearing on his property interests. It may be true that relying on random turns of a newspaper’s pages is just as unlikely to inform an affected citizen of a pending action. But the statute explicitly authorizes agencies to notify the public through newspapers, whereas the Internet is not mentioned. Furthermore, in my view, newspapers are more accessible to a wider range of people due to their cost — one of the few things in life still available for pocket change. Accordingly, I am troubled that, despite the apparent absence of any prior e-mail correspondence with the Millers indicating they were “wired,” so to speak, Sound Transit simply presumed they would receive notice posted exclusively on the Internet. I do not believe government should rest so easily in the assumption that this more expensive medium is universal. Due process demands that government err on the side of giving abundant notice when it seeks to take property. Therefore, I respectfully dissent.

Chambers, J., concurs with Alexander, C.J.

I take little comfort in the agency’s suggestion that a newspaper reporter might peruse the agency’s web site and independently inform the non-Intemetusing public of meeting plans. Such a passive approach is inconsistent with the RCW 35.22.288 requirement for “notifying the public.”