### 2016NOV

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON CENTRAL PUGET SOUND REGIONAL TRANSIT AUTHORITY, a regional transit authority, dba SOUND TRANSIT, and CITY OF SEATTLE, Respondents,

v. STERNOFF L.P., a Washington limited partnership; Appellant, JPMORGAN CHASE BANK, N.A.; W. STERNOFF LLC, a Washington limited liabilitycompany dba BODYGLIDE; KING COUNTY, a Washington municipal corporation; and ALL UNKNOWN OWNERS and UNKNOWN TENANTS, Defendants. No. 75372-0-1 DIVISION ONE

UNPUBLISHED OPINION FILED: November 7, 2016 

### 7 An 8: In

Becker, J. — This is an appeal from the determination of public use and 

### necessity authorizing Central Puget Sound Regional TransitAuthority(Sound Transit) to move forward withcondemnation proceedings against appellant's 

### property. Because the Sound Transit board did not engage in arbitrary and 

### capricious conductwhen itapproved condemnation and the board's resolutionNo. 75372-0-1/2 

### confers authority to condemn the property for a city of Bellevue (City) street widening project, we affirm.
FACTS 

### In 1992, the Washington State legislature authorized counties inthe Puget 

### Sound area to create a transportation agency "forplanning and implementing a high capacity transportation system within that region." RCW 81.112.010. Voters later approved a ballot measure creating Sound Transit. Sound Transit has already completed light rail projects in Seattle and Tacoma. In 2008, voters 

### approved the Sound Transit 2 plan to extend the existing light railsystem to cities east ofSeattle, including Bellevue. For the lastfew years, Sound Transit has been inthe final planning and design stages ofthe East Linkproject. InJuly 2011, Sound Transit selected the route and station locations by adopting Resolution R2011-10. Appellant SternoffLP is a business owned by William R. Sternoff. Sternoff
owns property along the East Link route located at 1750 124th Avenue Northeast in Bellevue's Bel-Red area. There are two buildings on the property, each including office space and warehouse space. The only means ofaccessing the property are two driveways on 124th Avenue. Stemoff's tenants require regular
access to conduct business, including to ship and receive goods. One tenant in particular, a medical device supplier, requires round-the-clock access. The East Linkalignment will run along and through the south portion of 

### Sternoffs property. The construction plans for 124th Avenue Northeast include 

### building Sound Transit's lightrail trackway, as wellas the City's project ofNo. 75372-0-1/3 

### building a bridge over the trackway. The Cityalso has a long-standing plan to widen the avenue to provide increased mobility and safety bycreating a five lane section with landscape zones and sidewalks. The new bridge will be constructed to accommodate the wider roadway. 

### InDecember2011, Sternoffentered into an agreementwiththe City that permitted survey work on the property related to the City's plans to improve 124th Avenue. Sternoffentered into another access agreement inApril 2013, this time with Sound Transit. The agreement permitted Sound Transitto conduct surveys on the property related to East Linkconstruction. Both agreements guaranteed that Sternoffand his lessees would have largely unimpeded access to the property during the survey work. The City assured Sternoffthat its representatives "will not block access to the business park or buildings or impede


### access around the buildings." Sound Transit assured Sternoffthat "during and afterthe expiration ofthe Term, except as needed and temporarily, Sound Transitwill not block access to the business park or buildings or impede access around the buildings needed for tenants, clients and deliveries, and willnot otherwise interfere with the day to day business operations ofthe Property." 

### InSeptember 2013, Sound Transit began the process ofcondemning properties for East Linkconstruction. At a meeting ofthe Capital Committee, Sound Transit's property director presented a proposed resolution, R2013-21, which identified 60 commercial properties as "necessaryfor the construction and permanent location ofthe East Link Project." This list included Sternoffs property. The resolution authorized condemnation proceedings "to acquire all, orNo. 75372-0-1/4


### any portion thereof, ofthe properties and property rights." The committee voted to recommend that Sound Transit's board pass the resolution. 

### The board adopted the resolution as part of its consent agenda during a meeting on September26, 2013. Sound Transit provided notice ofthe meeting to affected property owners, as required per RCW 8.25.290. In May 2015, Sound Transit and the City adopted an amended 

### Memorandum of Understanding, superseding a previous version adopted in 2011. The previous version is not designated as part ofthe appellate record. The 2015 memorandum states that pursuantto the 2011 agreement, "the Parties engaged in a collaborative process for design and development ofthe East Link 

### Project" and worked to "identify projects to be completedjointly for reduced impacts to the public, and overall cost savings and efficiencies." In a section titled "Project Coordination," under a subsection titled "Shared CostAgreement," the memorandum explains that Sound Transit and the City coordinated their projects on 124th Avenue: 

### The Project[1] is designed to cross undertwo existing roadways, 120thAvenue NE and 124thAvenue NE, which will require elevating the profile ofthe roadway as identified in Exhibit M, Section E. The 

### Cityhas identified 120thAve NE, between NE 12th Street and NE 

### 16th Street (CIP Plan Project PW-R-168), and 124thAve NE, between NE Spring Boulevard and NE 18th Street (CIP Plan Project PW-R-166) for widening and other improvements. The City and Sound Transit desire to coordinate and share the costs for the design, right-of-way acquisition and construction ofthe two projects to improve efficiencies and reduce costs. Upon execution ofthis MOU, the Parties shall enter into the Funding, Right-of-Way 

### 1The memorandum defines "Project" as "the segments ofthe Light RailTransit 

### System in the City of Bellevue as described in ExhibitC-1 (Project Description), attached and incorporated herein, and as may be modified as described in this MOU [Memorandum ofUnderstanding]."No. 75372-0-1/5 

### Acquisition and Construction AdministrationAgreementfor Roadway and East Link Project Improvements at 120thAve NE and 

### 124thAveNE attached hereto as Exhibit Nand incorporated herein by this reference. 

### In April 2016, Sound Transit filed a Petition in Eminent Domain against Sternoff inKing County SuperiorCourt. Sound Transit simultaneouslyfiled a motion for a finding of public use and necessity. The petition states that certain 

### real property rights "must be acquired forpurposes ofPetitioner's Link lightrail project." To constructthe East Link, "certain real property and real property rights are necessary for the City ofBellevue's Bel-Red Transportation 

### improvements, which includes widening 124thAve. NE." The petition states that the 2015 Memorandum of Understanding between Sound Transit and the City 

### "requires certain real property and real property rights for the 124thAve NE project." The Sound Transit board authorized condemnation to acquire "all, or any portion" of Sternoffs property when itadopted R2013-21. The petition did not seek to take the whole property; rather, itidentified 10 interests in portions of Sternoffs property for condemnation. These included permanentfee and easement interests, as well as temporary construction easements, as spelled out in legal descriptions attached to the petition. On June 6, 2016, the court held a hearing on public use and necessity. See RCW 8.12.090; RCW 8.12.100. Sternoffargued the petition should be 

### dismissed entirely because Sound Transit's board acted arbitrarily and 

### capriciously inadopting R2013-21 or, in the alternative, Sound Transit should not be permitted to acquire propertyforthe City's streetwidening project. On JuneNo. 75372-0-1/6 

### 7, 2016, the trial court issued findings of fact, conclusions of law, and an Order 

### and JudgmentAdjudicating Public Use and Necessity. The court found: 

### 7. The Condemned Property is necessary to and will be 

### used for a public purpose—locating, constructing, operating and 

### maintaining the Project.[2] 8. Petitioner has determined that the construction ofthe 

### Projectwill serve a public purpose, is necessary for the public interest, and thatthe Condemned Property is necessary for this purpose. The Respondents have been served with notice and a copy ofthe Petition. 10. There was no fraud, actual or constructive, no abuse of 

### power, bad faith, or arbitrary and capricious conduct by Sound Transit. The court concluded: 5. The taking and damaging of lands, properties and property rights in orderto locate, construct, operate and maintain the Project is for a public use. 6. The public interest requires the proposed use. 7. Appropriation ofthe Condemned Property is necessary for the proposed use. 8. Petitioner is entitled to the issuance of an orderfinding public use and necessity for the taking ofthe Condemned Property. Sternoffappealed. Sound Transitfiled a motion for accelerated review, asserting that possession of Sternoffs property in 2016 is required to keep the East Linkproject on schedule and on budget. We granted accelerated review. Sternoffassigns errorto findings 7, 8, and 10. He argues that because these findings are erroneous, conclusions 5 through 8 are not adequately supported by the court's findings.



### 2Defined bythe petition and bythe order as "the East Link Extension and its related facilities."No. 75372-0-1/7


### We will not disturb findings that are supported by substantial evidence. Cent. Puqet Sound Req'l TransitAuth. v. Miller. 156 Wn.2d 403, 419, 128 P.3d 

### 588 (2006). Substantial evidence is evidence that would persuade a fair-minded, rational person ofthe truth ofthe finding, viewed inthe lightmostfavorable to the respondent. Miller, 156 Wn.2d at419. BOARD ACTION 

### Sternoffcontends the Sound Transit board engaged inarbitrary and capricious conductwhen adopting R2013-21, the resolution authorizing condemnation proceedings. 

### The government must exercise its powerofeminent domain through 

### lawfulprocedures. Miller, 156 Wn.2d at 410. The statute governing regional transit authorities provides thatthe "right ofeminent domain shall be exercised by

an authority in the same manner and by the same procedure as or may be provided by law for cities ofthe first class, except insofar as such laws may be inconsistent with the provisions ofthis chapter." RCW 81.112.080(2). A city authority must first pass an ordinance providing that itseeks to condemn property for public improvements "which willrequire that property be taken or damaged for public use." RCW 8.12.050. Once the ordinance is passed, the condemning authority mustfile a petition in superior court. RCW 8.12.050. The next step is for a court to adjudicate public use and necessity. Miller, 156Wn.2d at 410. The court must determine (1) whetherthe proposed use is 

### really public, (2) does the public interest require it, and (3) is the property to be 

### acquired necessary forthat purpose. City of Bellevue v. Pine Forest Props., Inc.,No. 75372-0-1/8
185 Wn. App. 244, 259, 340 P.3d 938 (2014), review denied, 183Wn.2d 1016 

### (2015). The latter two findings address necessity. Pine Forest. 185 Wn. App. at 259, citingIn re Citv ofSeattle. 104 Wn.2d 621, 623, 707 P.2d 1348(1985). It is undisputed that the East Linkproject constitutes a public use. See HTKMgmt., LLC v. Seattle Popular Monorail Auth.. 155 Wn.2d 612, 630, 121 P.3d 1166 

### (2005). Sternoffs challenges relate to the necessity issue. "Necessity" in the eminent domain context does not mean absolute 

### necessity, but ratherthat a projectwill fulfill a genuine need and appropriately facilitate a public use. Pub. Util. Dist. of Grant County No. 2 v. N. Am. Foreign Trade Zone Indus.. LLC. 159 Wn.2d 555, 576, 151 P.3d 176 (2007); Miller. 156 Wn.2d at 421. A party challenging an agency's finding that necessity exists must demonstrate actual fraud, or arbitrary and capricious conduct sufficientto constitute constructive fraud. Miller. 156 Wn.2d at 417; Pine Forest, 185 Wn. App. at 262. Arbitrary and capricious conduct is willfuland unreasoning action, without consideration and regard for facts or circumstances. Citv ofTacoma v. Welcker, 65 Wn.2d 677, 684, 399 P.2d 330 (1965). When reasonable minds can differ regarding whetherthe record supports a trial court's finding of necessity,
we will not disturb the decision of a condemning authority so long as itwas reached honestly, fairly, and upon due consideration ofthe facts and circumstances. Pine Forest. 185 Wn. App. at 263. Our Supreme Court has observed that ithas seldom "'found that a condemning authority has abused its 

### trust in making a declaration of public necessity. This should not be surprising,

8No. 75372-0-1/9
for it is not to be presumed that such abuses often occur.'" Miller. 156Wn.2d at 

### 412, quoting State v. Brannon. 85 Wn.2d 64, 68, 530 P.2d 322 (1975). Itis undisputed that Sound Transit is a government agency that can lawfully exercise eminent domain powerpursuantto RCW 81.112.080(2). Sound Transit concluded itwas necessary to exercise this authority when the board adopted R2013-21: The Sound Transit Board deems the East Link Extension to be a 

### public use for a public purpose. The Board deems itnecessary and inthe best interests ofthe citizens residing within Sound Transit's boundaries to acquire the property identified in Exhibit A as being necessary for the construction, operation, and permanent location ofthe East LinkExtension, parties to be paid relocation and reestablishment costs associated with displacements from the properties. Sternoffargues the board's conduct was arbitrary and capricious because the board appears notto have considered the access agreements when deciding to adopt R2013-21. He asserts that Sound Transit staff"neverdisclosed to the Board the Sound TransitAccess Agreement" and concludes the "Access Agreements and related negotiations and assurances are exactly the 'facts and circumstances' that Sound Transit was obligated to evaluate in reaching an honest, fair and reasoned decision regarding the 'necessity' ofthe Sternoff Property." The agreement states that Sound Transit will not block Sternoffs
access during or after the survey work. 

### An agency cannot contract away its powerofeminentdomain. State ex rel. Devonshire v. Superior Court. 70 Wn.2d 630, 637, 424 P.2d 913 (1967). 

### Underthis principle, Sound Transit's agreement with Sternoffdid not control the board's decision whetherto exercise its eminent domain powerwith respecttoNo. 75372-0-1/10 

### his property. Sternoff, aware of this principle, does not argue that Sound Transit
was estopped from exercising its condemnation authority based on the contract. Rather, he contends the agreement contained information relevantto the East Link project and the board's failure to considerthis information renders its 

### conduct arbitrary and capricious. Sternoffcites no authority for the proposition that a condemning authority's failure to consider access agreements is relevant to the arbitrary and capricious inquiry, let alone dispositive. He had notice ofthe 

### meeting at which R2013-21 would be decided and thus had the opportunity to presentthese issues to the board. He was not entitled to rely on the board to consider them otherwise. Sternoffsuggests that the short amount oftime the board spent considering R2013-21 renders its decision arbitrary and capricious. Sternoff contends the board "rubber stamped" the resolution. The board adopted the resolution during a consent agenda. According to Sternoff, "the total Board consideration of R2013-21 amounted to four minutes oftime—to take 60 properties." Sternoffcites no authority for his position that the amount oftime devoted to a topic at a hearing is relevant to determining whether an agency's decision was arbitrary and capricious. Legislative bodies routinely adopt resolutions during consent agendas. Adoption on a consent agenda does not
mean that the decisions included were arbitrary or uninformed. The board's adoption of R2013-21 substantially supports the finding that Sound Transit "determined that the construction ofthe Project willserve a public 

### purpose, is necessary forthe public interest, and thatthe Condemned Property is

10No. 75372-0-1/11


### necessary for this purpose." The resolution also supports the findingthatthe "Condemned Property is necessary to and will be used for a public purpose— locating, constructing, operating and maintaining the Project." The trial courtwas entitled to rely on Sound Transit's determination ofnecessity inthe absence of proofof actual or constructive fraud. Miller. 156 Wn.2d at 417. Sound Transit 

### supported its eminent domain petition with evidence demonstrating its decision to condemn was based on considerations regarding the East Link's alignment and trackway. Viewing this evidence inthe light mostfavorable to Sound Transit, we 

### affirmthe finding thatthere was no arbitrary and capricious conduct by Sound Transit. STREET WIDENING PROJECT Sternoffcontends condemnation of his property for the City's street widening project is unconstitutional because there has never been an explicit finding by the City or Sound Transitthat his property is necessary for this project. The petition states that to constructthe East Linkextension and its related facilities, Sound Transit seeks to acquire portions of Stemoff's property deemed necessary for the City's project ofwidening the roadway. The petition mentions the Memorandum of Understanding by which the City and Sound Transit agreed to a collaborative process: Certain real property and real property rights must be acquired for purposes of Petitioner's Light rail project in orderto permanently locate, construct, operate and maintain the East LinkExtension and its related facilities (the "Project"). Inorderto constructthe Project, 

### certain real property and real property rights are necessary for the 

### City ofBellevue's Bel-Red Transportation improvements, which 

### includes widening 124thAve NE. As part ofthe agreementto expand light rail to Bellevue, Petitionerand the City ofBellevue
11No. 75372-0-1/12


### entered into a Memorandum ofUnderstanding for Intergovernmental Cooperation forthe East LinkProjectwhich 

### requires certain real property and real property rights forthe 124th Ave NE project. 

### The order identifies some ofSternoffs property interests being acquired as "COB" (city of Bellevue) takes. Sternoffcontends that Sound Transit's East Linkextension and the City's road improvement plan are separate projects. In his view, R2013-21—which does not specifically mention widening 124th Avenue—does not confer authority to condemn property for the City's streetwidening project. He argues that either Sound Transit orthe City had to make an explicit, separate finding ofpublic use and necessity for the street widening projectto support condemning his property for that purpose. Sternoffsubmitted deposition testimony by Sound Transit staffand board 

### members in which they agreed thatthe East Link extension and the City's road improvement plan are "separate" projects. He argues this demonstrates that 

### R2013-21 does not apply to the streetwidening project. Deposition testimony 

### characterizing the two projects as separate does not control ouranalysis of this issue. What is relevant is whether Sound Transit properly authorized the condemnation ofproperty for the streetwidening project. 

### Agovernment agency may exercise its powerofeminentdomain only if it first determines the public use and necessity requirements are met and a court 

### later adjudicates publicuse and necessity. Miller, 156Wn.2d at 410. Sternoff is correctthat neither Sound Transit nor the City adopted a resolution of public use 

### and necessity that specifically addresses the City's streetwidening project.
12No. 75372-0-1/13 

### Thus, Sound Transit's petition to acquire property forimproving 124th Avenue is supported only ifthe authority granted by R2013-21 extends to the City's project.
We conclude that it does. The property interests the petition seeks to acquire are tied to the East 

### Linkextension. R2013-21 authorizes Sound Transitto acquire "all, or any portion thereof, ofthe properties and property rights
... for the purpose ofconstructing, owning, and operating a permanent location ofthe East LinkExtension and light rail guideway." This language confers broad authority to condemn properties identified inthe resolution when, inthe agency'sjudgment, doing so is necessary to facilitate the East Link project. The 2015 Memorandum of Understanding demonstrates that Sound 

### Transit made ajudgmentthat acquiring property for the streetwidening project would facilitate the East Linkproject. The memorandum states, "the City and Sound Transit desire to coordinate and share the costs for the design, right-of

### way acquisition and construction" ofthe East Linkand streetwidening projects to "improve efficiencies and reduce costs." 

### Sternoffargues thatthe court's finding of public use and necessity 

### regarding his property is invalidbecause Sound Transit adopted the resolution in 

### 2013 and only later identified a plan to coordinate the East Linkwiththe City's streetwidening project, as specified inthe 2015 memorandum. Acondemning 

### authority must have a general outline ofintended improvements so that a court 

### can know what particular part of the property is necessary for the stated public

use. Port of Everett v. Everett Improvement Co., 124 Wash. 486, 492-94, 214 P.

13No. 75372-0-1/14 

### 1064 (1923). There is no requirementthat an agency must "have inplace a definitive use plan for the entire life ofthe property." Monorail, 155 Wn.2d at 638
n.21. This court recently upheld an order ofpublic use and necessity in a different condemnation action involving the East Linkand road improvement plans ofthe City. Pine Forest. 185 Wn. App. at 269. Condemnation of property for the City's road improvement project and for East Linkconstruction was authorized by a resolution ofthe Bellevue City Council. Pine Forest. 185 Wn. App. at 250. The ordinance authorizing condemnation specifically referred both 

### to the road project and to the East Link in finding necessity for the acquisition. Pine Forest does not hold that an ordinance mustidentify a particular projectfor 

### that projectto be covered bythe grant ofauthority to condemn. Sound Transit made a finding that acquisition ofSternoffs property was necessary for construction and location ofthe East Link. This finding suffices to supportthe 

### orderauthorizing condemnation ofproperty interests thatwill be conveyed to the City to facilitate widening a road that approaches and crosses the East Link trackway. 

### Because Sternoffhas not proved arbitrary and capricious conduct, Sound 

### Transit's finding is conclusive. The trial court properly issued an orderon public
use and necessity which includes property interests forthe City's road improvement project. 

### Sternoffrequests an award ofattorney fees pursuantto RCW8.25.075(1). 

### Becausewe deny Stemoff's requestforrelief, we deny hisrequestfor fees.

14No. 75372-0-1/15
The city of Seattle intervened in this action because itowns interests in Sternoffs property—two easements for the construction, operation, and maintenance of an electrical transmission system. At Seattle's request, we confirm that our disposition ofthis appeal does not affect Seattle's property interests. Affirmed. 

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WE CONCUR: 

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