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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CITY OF SAMMAMISH, a Washington municipal corporation, DIVISION ONE

Appellant, No. 83886-5-I

v. PUBLISHED OPINION

JOHN TITCOMB, JR. and LINDE R. BEHRINGER, husband and wife, and the marital community comprised thereof; and KING COUNTY,

Respondents.

DWYER, J. — In determining whether a municipality possesses the

requisite authority to condemn private property, our focus is the purpose of the

condemnation as articulated by the relevant legislative body. When such

authority exists, we must determine whether the condemnation is for a public use

and whether the property condemned is necessary to accomplish that use.

While the former is a judicial question, the latter is largely a question for the

legislative body seeking condemnation.

Here, the city council of the City of Sammamish enacted Ordinance No.

O2021-526 (the Ordinance) authorizing the condemnation of property rights in

the water flowing from George Davis Creek, which runs through the property and

beneath the home of John Titcomb and Linde Behringer. The Ordinance For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83886-5-I/2

authorized condemnation for the purposes of reducing and eliminating storm

drainage conveyance system capacity issues, improving traffic safety, and

providing flood protection, as well as supporting kokanee salmon recovery by

removing barriers to fish passage. Following the enactment of the Ordinance,

the City of Sammamish (the City) filed in the superior court a petition in eminent

domain and a motion for an order adjudicating public use and necessity. Titcomb

and Behringer opposed the City’s motion. The superior court denied the motion.

Because the City has the statutory authority to condemn private property

for the purposes set forth in the Ordinance, and because the City has

demonstrated both public use and necessity, we reverse the superior court’s

order denying the City’s motion and dismissing its eminent domain action.

I

In July 2018, the City initiated the George Davis Creek Fish Passage

Project (the Project) “to replace storm drainage infrastructure and to eliminate

existing barriers to fish passage.” George Davis Creek (the Creek), located in

Sammamish, runs downhill to East Lake Sammamish Parkway (ELSP), a main

arterial that parallels the waterfront homes along Lake Sammamish. The last

downstream portion of the Creek runs through the property of Titcomb and

Behringer before flowing into the lake. The Creek flows beneath Titcomb and

Behringer’s residence, where they have constructed a daylit fish ladder

integrated into the home’s foundation.

Christopher Coenen, senior stormwater program manager for the City,

described the impetus for and purposes of the Project. According to Coenen, the

2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83886-5-I/3

need to improve the drainage capacity of the Creek’s stormwater infrastructure

“goes back decades.” In the 1990s, King County installed a bypass system at

the Creek’s juncture with ELSP, which was intended to “capture overflow water

for occasional storm-related flooding.” However, the current system is

inadequate to convey stormwater “without significant maintenance to remove

accumulated sediment within the drain system.” Moreover, according to Coenen,

the “culverts, pipes, and other drainage infrastructure within the Creek prevent

Lake Sammamish Kokanee salmon from reaching upstream spawning grounds.”

Thus, Coenen indicated, the Project is intended “to reduce or eliminate storm

drainage conveyance system capacity issues, improve traffic safety of adjacent

roadways by reducing hazardous flooding conditions, and provide greater flood

protection. Likewise, the Project would remove barriers to fish passage.”

In late 2018, City staff conducted a project analysis to compare four

alternatives for the Project. Alternative 1 involved the replacement of multiple

culverts beneath ELSP and other roadways and the construction of an open

channel through the Titcomb and Behringer property, which would maintain the

open channel beneath and downstream of their residence. Alternative 2 would

not have impacted the Titcomb and Behringer property, but would have involved

the replacement of culverts and the construction of a series of open channel

stream sections on other property. Alternative 3 involved the replacement of

multiple culverts beneath ELSP and other roadways, construction of an open

channel through the Titcomb and Behringer property, reconstruction of an open

channel beneath the residence, and reconstruction of the existing channel

3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83886-5-I/4

between the residence and Lake Sammamish. Finally, Alternative 4 involved the

replacement of the same culverts, acquisition of the private property adjacent to

the Titcomb and Behringer property (the Sigmar property), and construction of

the stream through that City-owned property and into Lake Sammamish. After

considering these project alternatives, City staff and the project consultant team

indicated that Alternatives 3 and 4 best met the City’s goals for implementing the

Project.

The project alternatives analysis was presented to the Sammamish City

Council (the SCC) at its March 2019 meeting. The SCC thereafter directed City

staff to pursue Alternative 4, involving acquisition of the Sigmar property and

rerouting of the Creek through that property. The SCC concluded that the

proposed stream relocation “is necessary due to constraints with the existing

stream course through the Titcomb-Behringer property.” An alternative involving

modification of the stream through the Titcomb and Behringer property, the SCC

concluded, “would be unsuccessful because it would fail to meet critical project

requirements,” including state fish passage rules, the capacity “to convey the

100-year flow event,” and acquisition of the requisite federal permitting.

In March 2020, the City purchased the Sigmar property. The City attorney

advised the SCC that “the project’s relocation of the stream’s water flow may

constitute a taking of the Titcomb-Behringer’s property rights associated with the

value of the stream.” Thus, City staff and the City attorney “pursued a course to

provide just compensation” to Titcomb and Behringer. To that end, City staff

engaged in extensive efforts to reach a settlement agreement. When, over the

4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83886-5-I/5

course of 12 months, negotiations had not been productive, the City concluded

that further discussions were unlikely to result in such an agreement.

Accordingly, the Ordinance was proposed to authorize the initiation of

condemnation proceedings.

On March 2, 2021, the SCC held a public hearing at which members of

the public, including Titcomb, testified against the condemnation. At the hearing,

the objectives of the Project were presented, including the need to reduce the

risk of flooding, improve the capacity of a critical public facility, reduce

maintenance demands, and, additionally, support kokanee salmon populations.

According to the summary of the Project, it would address the “clear public need”

of the inadequacy of the current storm drain system, as well as supporting

kokanee salmon, and “can only be completed if the stream is moved.”

The SCC voted 6-1 to adopt the Ordinance authorizing exercise of its

power of eminent domain in order to acquire the Titcomb and Behringer property

for the Project. The Ordinance is entitled:

AN ORDINANCE OF THE CITY OF SAMMAMISH, WASHINGTON, DECLARING PUBLIC USE AND NECESSITY FOR THE ACQUISITION OF PROPERTY INTERESTS FOR THE GEORGE DAVIS CREEK FISH PASSAGE PROJECT; AUTHORIZING USE OF CONDEMNATION PURSUANT TO CHAPTER 8.12 RCW AS REQUIRED FOR THE GEORGE DAVIS CREEK FISH PASSAGE PROJECT; AUTHORIZING PAYMENT FOR THE ACQUISITION OF PROPERTY INTERESTS FOR THE GEORGE DAVIS CREEK FISH PASSAGE PROJECT FROM THE CITY’S STORMWATER ENTERPRISE FUND AND OTHERWISE FROM THE GENERAL FUNDS OF THE CITY; PROVIDING FOR SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE

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The Ordinance recognizes the goal, set forth in the City’s comprehensive plan,

“to maintain and protect surface water resources, and to encourage restoration of

such resources,” as well as “to acquire property to provide public control to the

water’s edge of State regulated shorelines.” It further recognizes our state

legislature’s enactment of legislation “establish[ing] a fish barrier removal board

to identify and prioritize the removal of fish barriers from rivers and streams.”

The Ordinance references that the “culverts, pipes and other drainage

infrastructure within George Davis Creek are not adequate to convey the two-

year storm event, which results in periodic flooding, additional facility

maintenance, and reduced traffic safety on adjacent roadways,” and that the

Project “will reduce or eliminate storm drainage conveyance system capacity

issues, improve traffic safety of adjacent roadways by reducing hazardous

flooding conditions, and provide greater flood protection.” The Ordinance

additionally notes the “significant barriers to fish passage” where the Creek flows

through the Titcomb and Behringer property. It indicates that the Project “will

support kokanee salmon recovery by providing barrier-free passage for fish

migrating to spawning grounds, and improve in-stream habitat and passage for

juvenile fish returning to Lake Sammamish.” In adopting the Ordinance, the SCC

determined that acquisition of the Titcomb and Behringer property “is for a public

use, in the public interest, and is necessary for that public use.”

On July 21, 2021, the City filed in the superior court a petition in eminent

domain “condemning all property rights in the water flowing from George Davis

Creek necessary for the George Davis Creek Fish Passage Project.” On

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December 10, 2021, the City filed a motion for an order adjudicating public use

and necessity. The City therein asserted that it is authorized by statute to

condemn the Titcomb and Behringer property for stormwater facilities, and that

such condemnation constitutes a public use and is necessary to accomplish that

use. Titcomb and Behringer opposed the motion, contending that the City does

not have statutory authority to condemn private land for fish passage purposes.

On February 14, 2022, the superior court denied the City’s motion for an

order adjudicating public use and necessity and dismissed the City’s

condemnation action. The City thereafter filed a motion for reconsideration,

which the superior court denied. On March 14, 2022, Titcomb and Behringer

filed a motion requesting attorney fees and costs pursuant to RCW

8.25.075(1)(a). The superior court granted the motion but reduced the amount of

the requested award.

The City appeals.

II

The City contends that the superior court erred by dismissing its

condemnation action. According to the City, it is statutorily authorized to

condemn the Titcomb and Behringer property for stormwater facilities purposes

pursuant to RCW 8.12.030. Moreover, the City asserts, the condemnation is

both for a public use and necessary to accomplish that use. We agree.

A

The power of eminent domain is an inherent power of the state that may

be delegated to its political subdivisions, including cities or counties. Cent. Puget

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Sound Reg’l Transit Auth. v. WR-SRI 120th N. LLC,

, 233,

(2018) (WR-SRI). However, “[a] political subdivision’s authority to

condemn property extends ‘only so far as statutorily authorized.’” WR-SRI, 191

Wn.2d at 233 (quoting Pub. Util. Dist. No. 1 of Okanogan County v. State,

,

(2015)). Thus, “the scope of the eminent domain

authority of a governmental unit is a matter of statutory interpretation,” and

specific rules guide our interpretation of statutes conferring such authority. WR-

SRI, 191 Wn.2d at 233-234. The power to condemn “must be conferred in

express terms or necessarily implied.” In re Petition of City of Seattle,

,

(1981). However, “[a]lthough a legislative grant of such

power to a municipality is to be strictly construed, it is not to be construed so

strictly as to defeat the evident purpose of the grant.” City of Tacoma v. Welcker,

,

(1965); see also WR-SRI, 191 Wn.2d at 235.

It is well established that municipalities “have clear statutory authority to

condemn property for roadways and for storm water control facilities.” Cowlitz

County v. Martin,

,

(2008). See also City of

Bellevue v. Painter,

,

(1990) (recognizing

statutory authority for “condemnation for drains and sewers or any other public

use within or without the limits of a city”). Indeed, our legislature has expressly

delegated such authority:

Every city and town . . . within the state of Washington, is hereby authorized and empowered to condemn land and property . . . [for] culverts, drains, ditches, . . . and to condemn land and other property and damage the same for such and for any other public

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use after just compensation having been first made or paid into court for the owner in the manner prescribed by this chapter.

RCW 8.12.030.

Here, the parties do not dispute that the City has statutory authority to

condemn private property for stormwater facilities purposes. See Br. of Resp’t at

21 (“Respondents do not dispute that cities have statutory authority to condemn

property for stormwater purposes.”). Indeed, such a position would be contrary

to the express language of RCW 8.12.030. Instead, Titcomb and Behringer

assert, as they did in the superior court, that the City lacks statutory authority to

condemn their property because the Project is “a fish passage project.” Br. of

Resp’t at 16. We disagree.

Whether a municipality possesses the requisite authority to condemn

private property is determined based on the purpose of the condemnation as

articulated by the relevant legislative body. In the Ordinance, the SCC clearly

articulated purposes consistent with the statutory grant of authority set forth in

RCW 8.12.030. The Ordinance states that the current infrastructure is “not

adequate to convey the two-year storm event,” resulting in “periodic flooding,

additional facility maintenance, and reduced traffic safety on adjacent roadways.”

It provides that the Project will address these issues, “reduc[ing] or eliminat[ing]

storm drainage conveyance system capacity issues, improv[ing] traffic safety of

adjacent roadways by reducing hazardous flooding conditions, and provid[ing]

greater flood protection.” These are precisely the purposes for which RCW

8.12.030 empowers municipalities to condemn private property. See, e.g.,

Cowlitz County,

; City of Bellevue,

. That

9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83886-5-I/10

the Project additionally provides fish passage benefits does not divest the City of

its authority, conferred by our legislature in RCW 8.12.030, to condemn property

for stormwater facilities.1

Titcomb and Behringer nevertheless assert that the City is precluded from

condemning their property because the City has received funding pursuant to the

“Salmon Recovery Act,” chapter 77.85 RCW, to implement some part of the

Project. The Salmon Recovery Act was enacted by our legislature “in an attempt

to improve salmonid fish runs throughout the state.” Cowlitz County,

; RCW 77.85.005. The act allows counties, cities, and tribal

governments to apply for state funds to repair and improve salmonid fish runs

after designating the repair or improvement in a “habitat project list.” RCW

77.85.050, .150, .170. As relevant here, the act provides that “[n]o project

included on a habitat project list shall be considered mandatory in nature and no

private landowner may by forced or coerced into participation in any respect.”

RCW 77.85.050(1)(a). Titcomb and Behringer assert that, because the City has

received grant funding pursuant to the Salmon Recovery Act for a certain portion

of the Project, their property may not be condemned for any part of the Project.

1 Indeed, pursuant to regulations promulgated by the Washington Department of Fish and

Wildlife, any water crossing structures over fish-bearing waters, including culverts, must be designed “to allow fish to move freely through them at all flows when fish are expected to move.” WAC 220-660-190(2)(a). For permanent water crossing structures, “[t]he water crossing design must provide unimpeded passage for all species of adult and juvenile fishes.” WAC 220-660- 190(3)(a). As senior stormwater engineer Coenen explained, “any storm drainage improvements to the drainage system are required by State law to be made fish passable” due to the Creek’s status as a state water and a fish-bearing stream. That the City is complying with state regulations regarding fish passage in constructing the Project does not, as Titcomb and Behringer assert, render the Project a “fish passage project[].” Br. of Resp’t at 3.

10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83886-5-I/11

The Ordinance provides, however, that compensation for the property

rights acquired through condemnation “will be made from the City’s Stormwater

Enterprise Fund and otherwise from the general funds of the City.” Titcomb and

Behringer do not dispute that this is true. Instead, they simply assert that the

grant funding received pursuant to the Salmon Recovery Act may not be used for

condemnation purposes. That is a separate question, however, from those that

we are tasked to decide—whether the City has statutory authority to condemn

the property and whether the Project constitutes a public use and the

condemnation is necessary for that use. Disputed issues involving the

expenditure of funds are not relevant to this appeal. Moreover, there is no

indication in the record that the City will use the RCO funds to compensate

Titcomb and Behringer. Titcomb and Behringer’s assertion that the City is

precluded from condemning their property pursuant to the Salmon Recovery Act,

chapter 77.85 RCW, is without merit.2

Titcomb and Behringer additionally assert that the court’s decision in

Cowlitz County,

, demonstrates that the City is without

statutory authority for condemnation. That case, however, is inapposite. There,

Cowlitz County filed a petition for condemnation to acquire an expanded

easement over private property to replace an existing culvert. Cowlitz County,

2 Titcomb and Behringer assign great weight to the name of the Project—the “George

Davis Creek Fish Passage Project.” However, it is the elected city council to whom our legislature has granted the power of condemnation. Accordingly, it is the Ordinance enacted by the SCC—not the title assigned to the Project by an executive branch employee—that delineates the purpose of that Project. As discussed supra, the Ordinance provides ample evidence that the purposes of the Project fall within the statutory authorization for condemnation set forth in RCW 8.12.030.

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. The county applied for and received a grant from the

Salmon Recovery Fund. Cowlitz County,

. Its engineering

manager “explained that the County wished to replace the Baxter Creek culvert

solely because it posed an impediment to fish passage.” Cowlitz County,

(emphasis added).

The relevant legislative authority, the county board of commissioners,

passed a resolution authorizing the county prosecuting attorney to file a petition

for condemnation. Cowlitz County,

. The resolution stated

that the project was “‘necessary to remove and replace the existing culvert that

has been identified as a barrier to fish passage and the Salmon Recovery

Funding Board has awarded a grant for the project.’” Cowlitz County,

. In the condemnation petition, the county prosecuting attorney for

the first time alleged an additional reason for the condemnation—that the existing

culvert was insufficient to handle storm stream flows. Cowlitz County,

.

Notwithstanding the county’s assertion that the project was also

authorized as a county road project, Division Two of this court held that the

county did not have authority to condemn the property. Cowlitz County,

. Looking to the resolution enacted by the relevant legislative

authority, the court determined that “the project had no road improvement

purpose independent of the culvert replacement under the Salmon Recovery

Act.” Cowlitz County,

. Moreover, the court held, the county

prosecuting attorney—who had, for the first time, articulated inadequacy for

12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83886-5-I/13

storm stream flows as a purpose of the project—lacked the authority to provide a

purpose that had not been embraced by the county board of commissioners.

Cowlitz County,

.

Thus, the court in Cowlitz County held that our legislature had “clearly

elected not to grant eminent domain power . . . for projects solely funded and

regulated by the Salmon Recovery Act.”

(emphasis added).

The record there did “not reflect that the commissioners considered or were even

aware of [the storm stream flow] issue when they made their finding that

condemnation was necessary.” Cowlitz County,

. Rather,

the commissioners had “authorized condemnation solely for the purpose of fish

passage by means of a project funded and regulated by the Salmon Recovery

Act.” Cowlitz County,

(emphasis added). Indeed, the board

of commissioners “made no other finding of necessity” and the record “reflect[ed]

no other basis for such a finding.” Cowlitz County,

.

Here, in contrast, the Ordinance enacted by the SCC clearly articulates

that the Project was initiated both “to eliminate existing barriers to fish passage

and replace storm drainage infrastructure” in the Creek. Unlike in Cowlitz

County, the purposes for which condemnation has been authorized were

properly articulated by the legislative authority to whom the power of eminent

domain was granted.3 Because the Project is a stormwater facilities project, the

3 Although it is the purpose articulated by the relevant legislative body that determines

whether statutory authority for condemnation exists, we note that the record here, beyond the Ordinance, further supports the City’s assertion that a primary purpose of the Project is to improve stormwater facilities. Consistent with the Ordinance, the presentation regarding the Project made at the public hearing identified reduction of flood risk, improvement of the capacity of the public facility, and

13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83886-5-I/14

City is statutorily authorized to condemn the Titcomb and Behringer property

pursuant to RCW 8.12.030.

B

The City additionally asserts that condemnation of the Titcomb and

Behringer property is for a public use and that acquisition of the property is

necessary to accomplish that use.4 We agree. It is well established that

condemnation by municipalities for stormwater facilities constitutes a public use.

Moreover, given the deference afforded to the legislative authority seeking to

reduction of maintenance demands as the public needs supported by the Project, in addition to noting that the Project supports the kokanee salmon. The presentation listed “storm drainage” as a “project driver.” The SCC’s agenda for the meeting indicated that the proposed stream relocation to the Sigmar property is necessary both to comply with fish passage rules and create capacity “to convey the 100-year flow event.” Moreover, senior stormwater engineer Coenen explained that the Project is “fundamentally a stormwater facilities improvement project.” He explained that “[t]he Project— and the City’s acquisition of the Behringer property—would fix [the] flooding issues on the ELSP and reduce or eliminate the need for extensive maintenance to ensure the base-level function envisioned by the design.” Senior stormwater engineer Stephanie Sullivan concurred, explaining that the Project “will remove a concrete dam further upstream, increase flow and sediment transport capacity, eliminate the need for a sedimentation pond and diversion system, and reduce or eliminate maintenance for those systems.” 4 Notwithstanding that the motion before the superior court was one requesting the

“adjudication of public use and necessity,” Titcomb and Behringer provide no argument regarding whether the City has demonstrated that the Project meets those requisite showings. Instead, they rely solely on their assertion that the City lacks statutory authority for condemnation. Nevertheless, they contend that, if we conclude that the City has statutory authority to condemn their property, remand for an evidentiary hearing is necessary “to resolve the question of public use and necessity” and to resolve purported factual disputes. Br. of Resp’t at 37-39. We disagree. Because the motion before the superior court explicitly sought the adjudication of public use and necessity, this issue has already been litigated. We decline to provide Titcomb and Behringer a “second bite at the apple.” Moreover, an evidentiary hearing is not necessary for a determination of public use and necessity. The purported factual disputes raised by Titcomb and Behringer need not be determined to resolve this case. As discussed infra, once the judicial determination of public use has been made, we owe great deference to the legislative condemning authority regarding whether acquisition of the property is necessary to accomplish that use. See, e.g., HTK Mgmt., LLC v. Seattle Popular Monorail Auth.,

,

(2005). The purported factual disputes raised by Titcomb and Behringer are inconsequential to the resolution of this case. Accordingly, we deny their request to remand for an evidentiary hearing.

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condemn property, we conclude that acquisition of the Titcomb and Behringer

property is necessary to accomplish the proposed public use.

The power of eminent domain is limited by both the Washington State

Constitution and by statute. State ex rel. Wash. State Convention & Trade Ctr. v.

Evans,

,

(1998) (Convention Ctr.). Article

I, section 16 prohibits the State from taking private property for private use.

Convention Ctr.,

. Pursuant to RCW 8.04.070, a proposed

condemnation must be necessary for the public use. Convention Ctr.,

.

Washington courts have developed a three-part test to evaluate eminent

domain cases. Convention Ctr.,

. For a condemnation to be

lawful, the municipality must demonstrate that “(1) the use is really public, (2) the

public interest requires it, and (3) the property appropriated is necessary for that

purpose.” HTK Mgmt., LLC v. Seattle Popular Monorail Auth.,

,

(2005). “The latter two findings are generally subsumed

under the definition of ‘necessity.’” In re Petition of City of Seattle,

,

(1985). Whether a proposed condemnation is really for

a public use “is solely a judicial question.” Welcker,

. However,

“[w]hether condemnation is necessary is largely a question for the legislative

body of the jurisdiction or government agency seeking condemnation.” Cent.

Puget Sound Reg’l Transit Auth. v. Miller,

,

(2006). “A declaration of necessity by a proper municipal authority is conclusive

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in the absence of actual fraud or arbitrary and capricious conduct, as would

constitute constructive fraud.” HTK Mgmt.,

.

In enacting RCW 8.12.030, our legislature authorized municipalities to

condemn property for the purpose of stormwater facilities. Although the question

of public use is a judicial one, decisional authority confirms that condemnation for

that purpose constitutes a public use. See, e.g., Cowlitz County,

; City of Bellevue,

. The Ordinance enacted by the

SCC clearly articulates the proposed public use of “reduc[ing] or eliminat[ing]

storm drainage conveyance system capacity issues, improv[ing] traffic safety of

adjacent roadways by reducing hazardous flooding conditions, and provid[ing]

greater flood protection.” Accordingly, we conclude that the proposed use of the

Project is a public one.

We next turn to the issue of necessity. Because questions concerning

whether a property acquisition is necessary to carry out a proposed public use

are legislative, we defer to the legislative body seeking condemnation with regard

to such determinations. Convention Ctr.,

. “This deference to

the condemnor’s decision regarding necessity has its root in the concept of

eminent domain itself.” In re Petition of Puget Sound Power & Light Co.,

,

(1981). “The power to assert eminent domain

rights is an attribute of state sovereignty—exercised through the legislature—and

is thus subject to judicial review only to determine whether the State exceeded its

lawful authority.” Petition of Puget Sound Power & Light Co.,

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618. Our Supreme Court has articulated the wisdom of this constrained judicial

review:

Once the purpose for which the lands are taken has been adjudged to be public, the kind and type of roadway, the route to be followed, the design and engineering details become the subject of administrative decision. . . .

Although the courts may well determine from the evidence whether a project is for the public benefit, convenience or necessity, they are not trained or equipped to pick the better route, much less design and engineer the project. Thus, the rule that leaves these decisions to the administrative agencies is a sensible one consistent with the idea that the public’s business be carried out with reasonable efficiency and dispatch by those possessing the superior talents to accomplish the public purposes.

Deaconess Hosp. v. Wash. State Highway Comm’n,

,

(1965).

“When reasonable minds can differ, courts will not disturb the legislative

body’s decision that necessity exists so long as it was reached ‘honestly, fairly,

and upon due consideration’ of the facts and circumstances.” Miller,

-18 (quoting Welcker,

). Indeed, “[e]ven if the decision

was partially motivated by improper considerations, it will not be vacated so long

as ‘the proposed condemnation demonstrates a genuine need and . . . the

condemnor in fact intends to use the property for the avowed purpose.’” Miller,

(second alteration in original) (quoting In re Petition of Port of

Grays Harbor,

,

(1982)). Moreover,

“necessary” in the context of condemnation does not mean absolute necessity.

Rather,

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[t]he word ‘necessary,’ as used in connection with eminent domain statutes, means reasonable necessity under the circumstances. State ex rel. Lange v. Superior Court,

,

(1963). It does not mean immediate, absolute, or indispensable need, but rather considers the right of the public to expect or demand that certain services be provided. Tacoma v. Welcker,

,

(1965).

City of Des Moines v. Hemenway,

,

(1968).

Accordingly, “[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.” Miller,

.

Here, the SCC considered four project alternatives and the analysis set

forth by City staff in comparing the relative merits of each. The SCC thereafter

concluded that the Project required acquisition of the Titcomb and Behringer

property. Relocation of the stream is necessary, as determined by the SCC,

“due to constraints with the existing stream course through the Titcomb-

Behringer property.” The SCC rejected an alternative involving modification of

the stream course through that property because “it would fail to meet critical

project requirements,” including state fish passage rules, the capacity “to convey

the 100-year flow event,” and the requisite federal permitting. Thus, the

Ordinance enacted by the SCC states that condemnation is “necessary for the

public use of the construction of the George Davis Creek Fish Passage Project.”

The SCC’s necessity determination was reached following due

consideration of the merits of multiple project alternatives. Titcomb and

Behringer nowhere assert that the City acted fraudulently or in an arbitrary and

18 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83886-5-I/19

capricious manner; nor would the record support such an assertion. Our

deference to the legislative authority in determining necessity for condemnation

is rooted both in our respect for the other branches of government and our

recognition of the institutional competence of courts. Miller,

.

In the absence of proof of fraud or arbitrary and capricious conduct, we will not

disturb the SCC’s determination that the acquisition of the Titcomb and Behringer

property is necessary for the proposed public use. HTK Mgmt.,

.

The stormwater facilities purpose of the Project, articulated in the

Ordinance adopted by the SCC, constitutes a public use. The record

demonstrates no fraud or arbitrary and capricious conduct on the part of the City.

Extending the deference owed to the SCC, we conclude that acquisition of the

Titcomb and Behringer property is necessary to accomplish the proposed public

use. Accordingly, we reverse the superior court’s order denying the City’s motion

for an order adjudicating public use and necessity and dismissing the City’s

petition in eminent domain.

III

The City further asserts that the superior court erred by awarding attorney

fees and costs to Titcomb and Behringer. We agree.

The superior court awarded attorney fees and costs to Titcomb and

Behringer pursuant to RCW 8.25.075(1)(a). The statute provides that, in a

condemnation action, the superior court “shall award the condemnee costs

including reasonable attorney fees . . . if . . . [t]here is a final adjudication that the

19 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83886-5-I/20

condemnor cannot acquire the real property by condemnation.” RCW

8.25.075(1)(a). Because we conclude that the City has demonstrated the

requisite public use and necessity to condemn the Titcomb and Behringer

property, the statute does not authorize such an award. Accordingly, we reverse

the award of attorney fees and costs awarded by the superior court to Titcomb

and Behringer.

Titcomb and Behringer additionally request an award of attorney fees and

costs on appeal. Again, the relevant statutory authority, RCW 8.25.075(1)(a),

permits such an award only upon a final adjudication that the condemnor cannot

acquire the property by condemnation. Thus, for the same reason that we

reverse the superior court’s award of fees and costs, we decline to grant such an

award to Titcomb and Behringer on appeal.

Reversed.

WE CONCUR:

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