WA Supreme Court upholds eminent domain ruling for PUD: Seattle WA Post-Intelligencer, 2/1/07

By Rachel La Corte, Associated Press

As [Washington state] lawmakers consider a measure that would require property owners to be directly notified that their land is about to be condemned, a sharply divided state Supreme Court on Thursday upheld an eminent domain action against a real-estate investment and development company.

The court's 5-4 decision affirmed that Public Utility District No. 2 of Grant County gave proper notice for an eminent domain action against North American Foreign Trade Zone Industries, LLC.

The ruling comes as lawmakers are considering a measure that would require local governments and public agencies to send certified letters to the affected parties when they are about to take property through eminent domain. It would also require publication of a notice of the decision-making meeting in the largest area newspaper. The bill has already passed the Senate Judiciary Committee and could come up for a full Senate vote as early as Friday.

"Really what the case is, it's mirroring the public debate right now over the rights of property owners," said Frank Siderius, attorney for North American. "Our state Legislature is going to have to address this issue."

The utility's spokesman, Gary Garnant, said he could not comment on the ruling because of ongoing litigation.

The case before the high court was prompted by a lease agreement the utility had with North American in 2001 for 20 acres in Grant County. The land was to contain 20 diesel generators the PUD acquired because of concerns during an energy shortage about meeting the power needs of its customers.

There was no purchase option in the agreement, and after negotiations for purchase fell through, the utility moved forward with condemnation proceedings for 10 acres of the property. In setting up the meeting to discuss condemnation, the official notice sent to the public only referred to "Condemnation of Certain Real Property."

According to the ruling, the utility's executive secretary faxed the agenda for the meeting to local newspapers and radio stations, posted the agenda outside the commission's meeting room and sent copies to the commissioners and to district employees and people who requested it.

Siderius said he wasn't aware of any newspaper publishing the agenda, and said his clients were not aware of the meeting.

After the resolution passed, the utility filed a condemnation petition, at which point North American was served with a copy. The company moved to dismiss the petition, arguing adequate public notice was not provided.

But at a second hearing in December 2003, the first resolution was ratified.

"The constitutionally limited eminent domain power and important due process safeguards of our constitution are again disregarded," Justice Jim Johnson wrote in dissent. "The constitutional right to own property and the public right to notice of governmental action loses again."

But the majority, led by Justice Mary Fairhurst, said the dissenters "misstate the law and the facts when they claim that due process entitles the landowner to notice of the agenda of a public meeting to authorize a condemnation."

"The notice at issue here is to the public, not the individual landowner," Fairhurst wrote.

"Notice for a public meeting to discuss a resolution authorizing condemnation is no different from notice for any other resolution," she wrote. "A resolution does not result in a taking of property and does not deprive a property owner of any rights."

The majority wrote that even if the resolution for condemnation is approved, "the actual condemnation action does not occur until the judicial hearing."

But "the problem with that, once you get into court, there's great deference paid to what the commissioners already resolved," Siderius said.

The ruling follows a controversial ruling the high court made last year in the case of Barbara and Ken Miller, who had some of their property in south Tacoma condemned by Sound Transit to make way for a parking lot for a train station.

Sound Transit posted a notice on its Web site of the meeting where the condemnation action would be taken. The Millers never saw the Web site notice, and appealed. But the Supreme Court ruled 5-4 that the Web site posting satisfied the notice requirement.

Some lawmakers said Thursday's ruling showed that the court would continue to rule against landowners.

"This is the sort of thing that builds distrust of government," said Sen. Mike Carrell, R-Lakewood and sponsor of the eminent domain measure in the Senate. "It's just simply wrong and it will not stand."

House Majority Leader Lynn Kessler, D-Hoquiam and sponsor of a companion bill in the House, agreed.

"It goes against at least the spirit of how we ought to go about eminent domain," she said. "It's more important now than ever to get this bill passed."

The companion House bill is scheduled for a public hearing in that chamber's Judiciary Committee on Friday.
The case is Pub. Util. Dist. No. 2 of Grant County v. N. Am. Foreign Trade Zone Indus., L.L.C. Docket number 76755-6.

The eminent domain notification measure is Senate Bill 5444. The companion measure is House Bill 1458.

Seattle WA Post-Intelligencer: http://seattlepi.nwsource.com