Public Utility District No. 2 of Grant County, Respondent, v. North American Foreign Trade Zone Industries, LLC, Petitioner, 159 Wash. 2d 555

¶1 — North American Foreign Trade Zone Industries, LLC (NAFTZI) seeks reversal of a published Court of Appeals decision holding that Public Utility District No. 2 of Grant County (PUD) satisfied notice requirements for initiation of an eminent domain action and that substantial evidence supported the trial court’s determination of public use and necessity for the condemnation. We affirm the appellate court’s ruling regarding notice on different grounds. We also affirm the holding that substantial evidence supports the trial court’s public use and necessity determination. Fairhurst, J. I.

FACTS ¶2 When wholesale prices of energy increased sharply in late 2000 and early 2001, Governor Gary Locke issued proclamations and energy supply alert orders stating that vital public services were at risk and the supply of energy could be disrupted.

Citing an energy shortage in the region and concerns about being unable to meet the power needs of its consumers, PUD invoked statutory emergency exemptions under RCW 54.04.070 and RCW 39.04.280 to acquire 20 diesel generators on March 27, 2001, to ensure it could meet demand. ¶3 In April 2001, PUD entered into a lease with NAFTZI for 20 acres of unimproved land located adjacent to property PUD owned in Grant County, and PUD placed the generators on the leased property.

The lease called for an initial term expiring on July 31, 2002, with a 12 month renewal option. ¶4 Throughout the lease negotiation process, and during the term of the lease, correspondence between the parties shows that PUD consistently made clear its desire to acquire the property. PUD was concerned, however, that NAFTZI had overvalued the property, and PUD had yet to obtain permits to operate the generators.

Ultimately, a purchase option was not incorporated into the lease contract, and at some point the purchase negotiations broke down. ¶5 One week prior to the regularly scheduled commission meeting in July 2003, PUD’s executive secretary prepared and distributed the meeting agenda.

Following the procedure she routinely used, the executive secretary faxed the agenda to local newspapers and radio stations, posted the agenda outside the commission’s meeting room, sent electronic copies to all PUD employees and individuals who had so requested, and mailed a copy to each of the commissioners. ¶6 The meeting agenda referred to Resolution 7643, which was entitled “A Resolution Authorizing the Acquisition By Condemnation of Certain Real Property.” Clerk’s Papers (CP) at 665. Resolution 7643 identified the property to be condemned and the property owners, including NAFTZI.

The resolution stated that PUD had offered the property owners an amount equal to the appraised value and that PUD had been unable to obtain the property through negotiation. It also identified the public use and necessity as “the operating of works, plants, and facilities for generating electric current and furnishing the District and the inhabitants of the District, and any persons including public and private corporations within or without the limit of the District with electric current and energy and to construct facilities for the transmission and distribution thereof.” CP at 5.

The commission passed the resolution. II. PROCEDURAL HISTORY ¶7 Following the commission’s approval of the condemnation action, PUD filed a petition in condemnation in Grant County Superior Court. NAFTZI filed a response, alleging that the proposed taking was not a public use and necessity, but did not raise a defective notice argument.

Several months later, NAFTZI moved for dismissal, alleging for the first time that PUD failed to provide statutory notice under RCW 35.22.288, RCW 35.23.221, RCW 35-.27.300, and RCW 35.30.010 of its intent to condemn NAFTZI’s property because the notice did not adequately describe the property subject to condemnation. NAFTZI further asserted that such notice was a jurisdictional requirement.

Replying to the motion, PUD argued that it was not subject to the statutes referenced by NAFTZI and the statutes that did govern public utilities did not require it to provide the detail cited by NAFTZI. ¶8 While the motion to dismiss was pending, PUD placed two alternative resolutions on the agenda for the commission’s December 15, 2003, meeting, one ratifying and one repealing Resolution 7643.

In addition to the standard notices normally prepared by the executive secretary, PUD also specifically notified NAFTZI’s counsel and published the text of the two proposed resolutions, which identified the land at issue, in two local newspapers. The commission approved the resolution ratifying Resolution 7643 and adopted it as Resolution 7680. ¶9 The trial court granted NAFTZI’s motion to dismiss, finding that the “July resolution did not notify the public of the property or site in question.” Verbatim Report of Proceedings (RP) (Jan. 15, 2004) at 28.

The court declined to rule on the effects of the resolution passed in December 2003. After PUD filed a motion for reconsideration, the trial court vacated the earlier ruling and ordered the condemnation action to proceed, citing the civil rule for amendment of pleadings and “ratification case law” as the basis. CP at 93. ¶10 At the hearing on PUD’s motion for determination of public use and necessity, the trial court noted that PUD had performed a cost analysis of the project and recognized the possibility of a need for reserve power capacity.

The court also expressed concern that disallowing the condemnation would, in effect, require PUD to incur the cost to remove or sell the generators. Applying the “arbitrary and capricious” standard, the court found a “reasonable basis” for PUD’s determination of necessity and ordered the condemnation to proceed to trial. RP (Apr. 1, 2004) at 94-95. f 11 The Court of Appeals, Division Three, affirmed the trial court. Grant County Pub. Util. Dist. No. 2 v. N. Am. Foreign Trade Zone Indus., LLC, 125 Wn. App. 622, 634, 105 P.3d 441 (2005). The court concluded that

(1) PUD followed statutory requirements in adopting both Resolution 7643 and Resolution 7680 and (2) substantial evidence supported the trial court’s determination of public use and necessity. Id. With regard to Resolution 7680, the court concluded that because Resolution 7680 passed before the trial court ruled on the motion to dismiss, there was no purpose to be served by beginning the condemnation process anew. Id. at 631. It also concluded that any defect in the notice for Resolution 7643 was corrected by the passage of Resolution 7680.

Id. ¶12 The court also expressly declined to apply an earlier ruling by Division One of the Court of Appeals, Port of Edmonds v. Nw. Fur Breeders Coop., Inc., 63 Wn. App. 159, 169, 816 P.2d 1268 (1991), which held that the notice requirements of RCW 35.22.288 applied to condemnations by port districts. The court concluded that the notice requirements of RCW 35.22.288 did not apply to public utility districts because they are subject to a different statutory scheme than port districts. Pub. Util. Dist. No. 2, 125 Wn. App. at 630. ¶13 NAFTZI petitioned for review, which we granted. Pub. Util. Dist.

No. 2 of Grant County v. N. Am. Foreign Trade Zone Indus., LLC, 154 Wn.2d 1021, 116 P.3d 398 (2005). III. ISSUES A. Did PUD fulfill the statutory notice requirements for initiation of an eminent domain action? B. Did substantial evidence support the trial court’s determination of public use and necessity? IV. ANALYSIS ¶14 The power of eminent domain is an inherent attribute of sovereignty. State v. King County, 74 Wn.2d 673, 675, 446 P.2d 193 (1968) (citing Miller v. City of Tacoma, 61 Wn.2d 374, 378 P.2d 464 (1963)). It is limited by the constitution and must be exercised under lawful procedures. Id.

Statutes that delegate the State’s sovereign power of eminent domain to its political subdivisions, like a municipal corporation, are to be strictly construed. See, e.g., City of Des Moines v. Hemenway, 73 Wn.2d 130, 137, 437 P.2d 171 (1968). f 15 Before the judicial process for condemnation may begin, a city must adopt an ordinance authorizing the condemnation. RCW 8.12.040. A public utility district authorizes a condemnation action pursuant to a resolution of the commission. RCW 54.16.020.

Once an entity with the power of eminent domain makes its initial determination to authorize a condemnation action of private property, the matter moves to the superior court for the condemnation, which involves the court determining public use and necessity, fixing the amount of just compensation, and transferring title. In re Seattle Popular Monorail Auth., 155 Wn.2d 612, 629, 121 P.3d 1166 (2005); see also Wash. Const, art. I, § 16. This case presents only issues related to PUD’s authorization and the public use and necessity stage of the judicial proceeding. A.

Statutory Notice ¶16 Procedural errors, such as lack of proper notice, are questions of law reviewed de novo. State v. Harris, 114 Wn.2d 419, 441, 789 P.2d 60 (1990). Although a state entity bears the burden of proving public use and necessity in the judicial condemnation process, the challenger bears the burden of proof that the notice of a public hearing to authorize condemnation was defective. We must decide two questions regarding the notice PUD provided for the meeting held to pass Resolution 7643.

First, whether the notice requirements of RCW 35.22.288, RCW 35.23.221, RCW 35.27.300, and RCW 35.30.010, which set out meeting notice requirements for cities and towns related to adoption of ordinances, apply to PUD. Second, whether the notice PUD provided in this case was sufficient. We hold that the statutes do apply and that the notice in this case met the statutory requirements. 1. Applicability of statutes governing notice for adoption of ordinances ¶17 We review questions relating to the meaning of a statute de novo. Seattle Popular Monorail, 155 Wn.2d at 627. The objective of statutory

interpretation is to give effect to the legislature’s intent. Id. We consider the statute as a whole and use related statutes to help identify the legislative intent for a particular provision. Id. We consider a statute ambiguous and resort to statutory construction principles only if the statute can reasonably be interpreted in more than one way. Id. ¶[18 PUD is a municipal corporation established under RCW 54.04.020. As a public utility district, PUD exercises its eminent domain powers “pursuant to resolution of the commission and conducted in the same manner and by the same procedure as is provided for the exercise of that power by cities and towns of the state . . . .” RCW 54.16.020.

Chapter 8.12 RCW governs the exercise of eminent domain by cities and towns. It requires a city or town to pass an ordinance before a condemnation action may be commenced but does not contain any specific requirements related to public notice about hearings held to discuss proposed ordinances. RCW 8.12.040.

The notice requirements that cities and towns must follow for hearings informing the public generally of proposed ordinances are set out in RCW 35.22.288, RCW 35.23.221, RCW 35.27.300, and RCW 35.30.010. ¶19 NAFTZI argues that PUD is required to conform to the notice provisions of RCW 35.22.288, RCW 35.23.221, RCW 35.27.300, and RCW 35.30.010 in accordance with the holding in Northwest Fur Breeders. PUD argues that Northwest Fur Breeders does not apply to public utility districts because the two entities are subject to different statutory schemes. Instead, PUD claims it is subject only to the provisions of

chapter 54.16 RCW (powers of public utility districts),

chapter 42.30 RCW (Open Public Meetings Act of 1971), and

chapter 8.12 RCW (eminent domain by cities). ¶20 The Northwest Fur Breeders court concluded that the notice requirements governing adoption of ordinances by first class cities apply to a port district seeking to condemn property because the port district is statutorily required to exercise eminent domain powers in the same manner as first class cities. 63 Wn. App. at 165. The court also concluded that RCW 35.22.288 acts to modify

chapter 8.12 RCW by specifying the procedure for the adoption of ordinances by first class cities. Id. In declining to apply Northwest Fur Breeders, Division Three said only that port districts and public utility districts are subject to “different statutory scheme[s].” Pub. Util. Dist. No. 2, 125 Wn. App. at 630. ¶21 However, the statute governing PUD’s exercise of eminent domain is almost identical to the statute governing the exercise of eminent domain by port districts, except that one refers to the procedures used by cities and towns and the other refers to procedures of first class cities. RCW 54.16.020.

Because the notice requirements are the same for all classes of cities and towns, the two schemes are virtually indistinguishable. ¶22 We conclude that the Court of Appeals erred in concluding that the statutory schemes for condemnation differ for port districts and public utility districts because the procedures used by cities and towns are the same as the procedures used for cities of the first class. We hold that the notice requirements of RCW 35.22.288, RCW 35.23.221, RCW 35.27.300, and RCW 35.30.010 apply to public utility districts regarding the exercise of eminent domain powers. 2.

Sufficiency of notice ¶23 NAFTZI also contends that PUD did not provide adequate notice for Resolution 7643 because the preliminary agenda failed to identify the specific property that PUD sought to condemn and the property owner. PUD argues that the notice it provided is distinguishable from the notice provided in Northwest Fur Breeders because here the condemnation issue was expressly stated in the agenda.

PUD also contends that the agenda was sufficient because it referred to the resolution and the resolution identified the property and the property owners. f 24 We agree with PUD that the notice in this case is distinguishable from the notice provided by the port district in Northwest Fur Breeders. Whereas the port district failed to make any mention of condemnation, PUD specifically referred to condemnation of certain real property and to Resolution 7643.

Two of the dissenting opinions erroneously persist in arguing that the notice for the meeting to discuss Resolution 7643 was deficient because it failed to identify the property owner and the property to be condemned. Dissent (J.M. Johnson, J.) at 600; dissent (Chambers, J.) at 592, 594-95. However, it is important to remember that at this stage of the process, notice is to the public.

As we have noted previously, although a specific description of the property is required for the public use and necessity hearing, notice of a public hearing to authorize condemnation need be only “descriptive enough for a reasonable person to be fairly apprised of what was to be discussed at the meeting” and is generally deemed adequate absent a showing that it was misleading. Cent. Puget Sound Reg’l Transit Auth. v. Miller, 156 Wn.2d 403, 416, 128 P.3d 588 (2006) (emphasis added) (citing Dep’t of Natural Res. v. Marr, 54 Wn. App. 589, 596, 774 P.2d 1260 (1989) (citing Nisqually Delta Ass’n v.

City of DuPont, 103 Wn.2d 720, 727, 696 P.2d 1222 (1985))). f25 In any event, PUD’s agenda referred to the resolution, and the resolution identified both the property and the property owners. The resolution also stated that PUD sought to condemn the property “for use as a diesel generation site” CP at 666 (emphasis added). Thus, the notice here, as in Miller, was not only sufficient to put the public on notice that a resolution authorizing acquisition for condemnation would be considered at the meeting, it exceeded the statutory requirements.

Nothing more was required at this stage of the process, and the corrective action PUD took afterward to ratify Resolution 7643 was unnecessary. If NAFTZI believes the statute should require more specific notice, it should pursue the issue with the state legislature. We will not read requirements into a statute that are not there. f 26 Additionally, two of the dissenting opinions 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. Dissent (J.M.

Johnson, J.) at 596, 597, 599, 600 n.33; dissent (Alexander, C.J.) at 587-88. The Ffourteenth Amendment to the United States Constitution guarantees due process to individuals, and the notice at issue here is to the public, not the individual landowner. Notice for a public meeting to discuss a resolution authorizing condemnation is no different from notice for any other resolution. A resolution does not result in a taking of property and does not deprive a property owner of any rights. Even if the resolution is approved, the condemnation action may or may not go forward.

The actual condemnation action does not occur until the judicial hearing. Hyperbole and inflated rhetoric do not alter the fact that the individual landowner’s constitutional rights are protected in the judicial proceeding, not in the public meeting authorizing condemnation. ¶27 Moreover, none of the cases Chief Justice Alexander or Justice J.M. Johnson cite support their contention that constitutional due process notice rights are at issue here.

Chief Justice Alexander cites only to cases involving notice for judicial condemnation or comparable proceedings, none of which suggests that their holdings have broader application to a public meeting to discuss authorizing a condemnation. Justice J.M. Johnson’s dissect cites only his or other dissenting opinions. ¶28 Justice Chambers also asserts that the notice PUD provided for the meeting on Resolution 7643 did not adequately allow for public comment on the proposed condemnation. Dissent (Chambers, J.) at 593. We disagree.

We have clearly established that the commission discussed the proposed condemnation in a regular meeting open to the general public after notifying the public of the meeting agenda. ¶29 We therefore affirm the Court of Appeals on different grounds. Unlike the Court of Appeals, we hold that PUD is subject to the notice requirements of RCW 35.22.288, RCW 35.23.221, RCW 35.27.300, and RCW 35.30.010 for meetings held to adopt resolutions authorizing acquisition for condemnation. We also hold the notice provided for Resolution 7643 met the statutory requirements.

Because we hold that the notice for Resolution 7643 was sufficient, we do not decide the effect of Resolution 7680. B. Public Use and Necessity ¶30 Once a government entity passes a resolution or ordinance, as appropriate to that entity, authorizing a condemnation action, it must file a petition in superior court requesting a decree of public use and necessity. RCW 8.12.050. The petition must include a copy of the resolution or ordinance and contain a “reasonably accurate description” of the property to be condemned.

RCW 8.12.060. ¶31 A decree of public use and necessity may be entered for a proposed acquisition only when the use in question is really a public use, public interests require it, and the property to be acquired is necessary to facilitate the public use. Hemenway, 73 Wn.2d at 138. 1. Public use ¶32 The question of whether the use is really a public use is a judicial determination. Seattle Popular Monorail, 155 Wn.2d at 629; Wash. Const, art. I, § 16. Washington courts have repeatedly held that condemnation of private property by public utilities to generate electric power is a public use. Dickgieser v.

State, 153 Wn.2d 530, 537, 105 P.3d 26 (2005); State ex rel. Wash. State Convention & Trade Ctr. v. Evans, 136 Wn.2d 811, 821, 966 P.2d 1252 (1998); Pub. Util. Dist. No. 1 of Chelan County v. Wash. Water Power Co., 43 Wn.2d 639, 643, 262 P.2d 976 (1953); State ex rel. Chelan Elec. Co. v. Superior Court, 142 Wash. 270, 272, 253 P. 115 (1927). In addition, we have expressly held that a finding of public use is not defeated where alleged private use is incidental to the public use. Evans, 136 Wn.2d at 822; City of Tacoma v.

Nisqually Power Co., 57 Wash. 420, 428, 107 P. 199 (1910). ¶33 NAFTZI’s primary contention is that the use is private because PUD only condemned the property to avoid the economic burden of removing the generators and to increase revenues by capitalizing on price fluctuations in the energy market. PUD has consistently argued that its primary purpose in installing the generators and condemning the property was to provide energy to its customers.

At the public use and necessity hearing, PUD presented extensive evidence that the generators were installed to act as a hedge against future market increases and that the generators would enable PUD to satisfy the energy needs of its customers. The mere fact that PUD would be able to increase revenues by installing the generators did not convert the use into a private one. ¶34 Justice J.M.

Johnson’s dissent apparently misunderstands the facts regarding PUD’s plans for the diesel generators and thereby suggests that PUD’s sole purpose in condemning NAFTZI’s land was to sell it to another private party rather than use it for a public purpose. He states that PUD sought to take NAFTZI’s property “so unused diesel generators may be stored until buyers remove them.” Dissent (J.M. Johnson, J.) at 602. This statement is not supported by the record. ¶35 The record indicates that PUD considered three options regarding the generators.

The first option was to either purchase or continue to lease NAFTZI’s land, mothball the generators on the property, and possibly sell some or all of the generators at a later date. CP at 108. The second option was to purchase the land, obtain a permit to operate the generators, use the generators to provide reserve energy, and possibly sell some or all of the generators at a later date. Id. at 109. The third option was to remove and possibly sell the generators but not purchase the land. Id. PUD’s staff recommended the second option. Id. at 110.

None of these options involved taking NAFTZI’s property solely in order to store the generators until buyers removed them. ¶36 Even if PUD were to purchase NAFTZI’s property, mothball or use the generators for a period of time, and then subsequently sell the generators, those actions would not convert the use of NAFTZI’s property from a public to a private one. We have explicitly held that a public entity need not plan to use condemned property for a public purpose forever to justify the initial public use. Seattle Popular Monorail, 155 Wn.2d at 634.

Regardless, NAFTZI never alleged that a private party would use or benefit from the property. ¶37 In addition, PUD’s plans to sell excess electric power generated did not render the income from those sales private, even if it was sold on an energy market to non-customers. Wash.

Water Power, 43 Wn.2d at 642 (affirming that Chelan County Public Utility District’s sale of electric power to “ ‘public and private corporations, within or without its limits’ ” was a public use, even though the condemnation allowed the district to acquire excess capacity (quoting Chelan County Superior Court Decree of Public Use and Necessity)); see also State ex rel. Chelan Elec. Co., 142 Wash, at 272 (concluding that all uses of electric power are “public” uses, irrespective of the user).

It is immaterial whether PUD earns revenue by selling electric power directly to its customers or indirectly on an energy market. Because PUD is a public utility, any increase in PUD’s revenue is still public revenue. If a public utility uses private property it obtained through condemnation to generate revenue, places the revenue into an account within its control, and uses the revenue for public purposes, the purpose of the property remains public, not private. Dickgieser, 153 Wn.2d at 537-38. ¶38 We conclude that the condemnation was for a public use. 2.

Necessity ¶39 A determination of necessity is a legislative question. Seattle Popular Monorail, 155 Wn.2d at 629; Miller, 156 Wn.2d at 411. A declaration of necessity by a legislative body is “conclusive in the absence of proof of actual fraud or arbitrary and capricious conduct, as would constitute constructive fraud.” Id. at 629. A condemnation of private property is necessary if it is “ ‘reasonably necessary’ ” under the circumstances. Id. at 636 n.19. Challenges to necessity are generally raised when excess land is condemned or when the condemnation is actually for a private use.

Evans, 136 Wn.2d 811 (holding condemnation of property needed for convention center lawful even though an incidental private use would ensue). ¶40 Courts do not disturb a determination of necessity if it was reached “honestly, fairly, and upon due consideration” of the facts and circumstances. City of Tacoma v. Welcker, 65 Wn.2d 677, 684, 399 P.2d 330 (1965).

Even where the decision was motivated in part by improper considerations, a reviewing court will not vacate if “ ‘the proposed condemnation demonstrates a genuine need and . . . the condemnor in fact intends to use the property for the avowed purpose.’ ” Miller, 156 Wn.2d at 418 (alteration in original) (quoting In re Petition of Port of Grays Harbor, 30 Wn. App. 855, 864, 638 P.2d 633 (1982)). ¶41 Because the trial judge already weighed the evidence supporting PUD’s determination of necessity, we review the record only to determine whether the court’s factual findings are supported by substantial evidence.

We view substantial evidence in the light most favorable to the respondent. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). |42 NAFTZI argues that PUD failed to demonstrate necessity because it did not prove a shortage of energy in the area. NAFTZI also contends that the evidence presented at the condemnation hearing demonstrated that PUD’s sole purpose in acquiring the generators was to sell the generated power at inflated prices. PUD disputes NAFTZI’s characterization of its purpose. PUD first cites Governor Locke’s proclamations and energy supply alert orders as evidence of an emergency.

PUD also points to Resolution 7643, which stated that the purpose of the condemnation was operation of a facility to generate electrical current and furnish it to PUD’s customers. In addition, PUD produced evidence at the condemnation hearing of fluctuations in the demand for electric power, the tentative nature of its forecasts regarding hydroelectric power, and the backup role the diesel facility serves in cases of power interruption from other sources. ¶43 As NAFTZI asserts, the record suggests that PUD’s decision to install the generators was motivated, at least in part, to maximize profits from energy sales.

However, the record also contains ample evidence that the generators were purchased in response to a real energy crisis and that PUD was acting primarily to protect its ability to provide energy to its customers. Moreover, NAFTZI failed to present any evidence of actual fraud or arbitrary and capricious conduct amounting to constructive fraud by PUD. Absent proof of fraud or arbitrary and capricious conduct, we view PUD’s declaration of necessity as conclusive. Accordingly, we affirm the Court of Appeals. V.

CONCLUSION ¶44 We hold that PUD is subject to the notice requirements for enactment of ordinances by cities and towns and the notice here met the statutory requirement. We also hold that the trial court did not abuse its discretion in finding that substantial evidence supported a determination of public use and necessity. We affirm the Court of Appeals. C. Johnson, Madsen, Bridge, and Owens, JJ., concur. NAFTZI is a subsidiary of Aero-Space Port International Group (ASPI).

In a memorandum dated April 6, 2001, the acting manager of PUD discussed several options for acquiring the property, referring to condemnation as a less desirable option them outright purchase, and mentioned discussions that PUD had with NAFTZI about including a purchase option in the lease. He further stated that PUD did not agree with NAFTZI about the property’s value. Also, PUD’s regulatory compliance coordinator wrote to ASPI’s corporate counsel on May 23, 2003, and made explicit references to ongoing discussions between PUD and NAFTZI regarding a purchase price for the property.

Thus, the dispute here was not about whether the landowner or the public received adequate notice of the condemnation; it was about the price NAFTZI was asking for the property. One dissent mischaracterizes two facts related to the lease. First, it states that PUD “declined a proposed purchase option with NAFTZI.” Dissent (J.M. Johnson, J.) at 595. It is unclear what proposed purchase the dissent is referring to. PUD exercised the renewal option that was included in the lease, and there was no purchase option to exercise because, as noted above, the lease did not include a purchase option.

Second, it states that PUD condemned NAFTZI’s property to save the cost related to the lease or removing the generators. Id. The record shows that PUD negotiated at length with NAFTZI to purchase the property before resorting to a condemnation action, and the cost associated with removing the generators was only one of the reasons PUD sought the property. Public utility districts exercise their statutory powers though a commission. RCW 54.12.010. One dissent erroneously asserts that PUD “apparently used no established procedure for notifying the public of the hearing or the agenda.” Dissent (J.M.

Johnson, J.) at 600. The executive secretary’s statement clearly indicates she followed her routine procedure. Public utility commissions carry out their objectives by resolution rather than by ordinance. RCW 54.16.020, .190. The statutes referenced by NAFTZI relate to notice for adoption of ordinances. The statutes governing first class cities, unclassified cities, towns, and second class cities employ identical language. See RCW 35.22.288 (first class cities); RCW 35.30.010 (unclassified cities); RCW 35.27.300 (towns); RCW 35.23.221 (second class cities).

To quote just one example, RCW 35.22.288 states that [e]very city shall establish a procedure for notifying the public of upcoming hearings and the preliminary agenda for the forthcoming council meeting. Such procedure may include, but not be limited to, written notification to the city’s official newspaper, publication of a notice in the official newspaper, posting of upcoming council meeting agendas, or such other processes as the city determines will satisfy the intent of this requirement.

The first resolution was titled “A Resolution Ratifying Resolution No. 7643 Relating to the Acquisition by Condemnation of Certain Real Property for Use as a Diesel Generation Site.” CP at 666 (bold and upper case omitted). The second resolution was titled “A Resolution Repealing Resolution No. 7643 and Directing the District’s Counsel to Dismiss the Pending Condemnation Action of Certain Real Property for Use as a Diesel Generation Site.” Id. (bold and upper case omitted). One dissent highlights the fact that the trial court only upheld the condemnation on reconsideration but does not explain why it matters.

Dissent (J.M. Johnson, J.) at 605. This dissent appears to confuse the trial court’s ruling regarding the adequacy of notice for the commission meeting with its public use and necessity determination. As this dissent acknowledges, the ruling regarding the meeting notice merely established the court’s jurisdiction to hear the public use and necessity issue. Dissent (J.M. Johnson, J.) at 600-01. Because we conclude the notice was adequate, the court did have jurisdiction. The fact that the trial court reached this conclusion only on reconsideration is irrelevant.

NAFTZI also commenced an unlawful detainer action against PUD that the trial court consolidated with the condemnation action and stayed during this appeal. Justice J.M. Johnson erroneously asserts that the burden of proof for the public hearing to authorize condemnation derives from the burden of proof at the public use and necessity hearing. Dissent (J.M. Johnson, J.) at 598. However, the only authority cited for this proposition is his own dissenting opinion in Central Puget Sound Regional Transit Authority v. Miller, 156 Wn.2d 403, 429 n.14, 128 P.3d 588 (2006) (J.M. Johnson, J., dissenting).

This claim is part of his continuing effort to “constitutionalize” the notice requirement for public meetings by conflating the public meeting authorizing condemnation and the judicial hearing on the condemnation action. We note that statutes governing other entities contain similar language referencing procedures applicable to cities and towns for the exercise of eminent domain powers.

See RCW 35.58.210 (metropolitan municipal corporations); RCW 36.57A.100 (public transportation benefit areas); RCW 53.25.190 (industrial development districts); RCW 57.08.005 (water-sewer districts); RCW 81.112.080-.090 (regional transit authorities). Justice J.M. Johnson’s dissent argues that the agenda for Resolution 7643 was inadequate to provide “meaningful advance notice of the intended action to take this property.” Dissent (J.M. Johnson, J.) at 600. As with his assertion regarding burden of proof, supra note 11, Justice J.M.

Johnson’s dissent again conflates the general notice provided to the public for a meeting to discuss a potential eminent domain action with the individual notice provided to a property owner when a government entity announces its intent to take private property and requests a decree of public use and necessity in superior court.

RCW 54.16.020 states, in pertinent part, that “[t]he right of eminent domain shall be exercised pursuant to resolution of the commission and conducted in the same manner and by the same procedures as is provided for the exercise of that power by cities and towns of the state in the acquisition of like property and property rights.” (Emphasis added.) The enabling statute for port districts, RCW 53.08.010, states, in pertinent part, that “[a] port district. . . may exercise the right of eminent domain . . . and such right shall be exercised in the same manner and by the same procedure as provided for cities of the first class . . ..” (Emphasis added.) All four statutes contain the identical language regarding the notice procedures for hearings to discuss proposed ordinances.

As a representative example, RCW 35.22.288 states that the procedures “may include, but not be limited to, written notification to the city’s official newspaper, publication of a notice in the official newspaper, posting of upcoming council meeting agendas, or such other processes as the city determines will satisfy the intent of this requirement.” Two of the dissenting opinions also make the extraordinary claim that due process requires actual notice at this stage because PUD’s determination of necessity in Resolution 7643 will he deemed conclusive in the judicial condemnation proceeding.

Dissent (Chambers, J.) at 594; dissent (Alexander, C.J.) at 587-88. It is disconcerting that these dissents apparently believe the trial court’s deference on the necessity issue renders a significant portion of the judicial condemnation proceeding a nullity. It is of more concern that they would insert requirements into the statute even though NAFTZI does not challenge the constitutional validity of the statute. NAFTZI merely claims that it did not receive notice the statute requires. Pet. for Review at 8-10.

Several of the cases that Chief Justice Alexander cites involve challenges to the constitutionality of the notice statute, which have no hearing here because NAFTZI did not challenge the statute. As noted, NAFTZI only claims that PUD failed to follow the statutory notice requirements. See Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 799, 103 S. Ct. 2706, 77 L. Ed. 2d 180 (1983) (mortgagee challenged a statute that did not require notice to the mortgagee of the sale of the mortgaged property for delinquent property taxes); Fuentes v. Shevin, 407 U.S. 67, 81, 92 S. Ct. 1983, 32 L.

Ed. 2d 556 (1972) (petitioners challenged constitutionality of statutes allowing the state to summarily seize goods purchased subject to conditional sales contracts); Schroeder v. City of New York, 371 U.S. 208, 212, 83 S. Ct. 279, 9 L. Ed. 2d 255 (1962) (plaintiff challenged a statute permitting notice by publication for judicial proceeding to condemn property for the New York water system); Walker v. City of Hutchinson, 352 U.S. 112, 115, 77 S. Ct. 200, 1 L.

Ed. 2d 178 (1956) (appellant challenged a statute permitting notice by publication for proceeding to fix compensation for condemnations); City of Everett v. Slade, 83 Wn.2d 80, 84, 515 P.2d 1295 (1973) (man whose vehicle was seized when he was arrested for a drug crime challenged a statute that permitted the city to summarily seize property without notice or an opportunity for a hearing). Chief Justice Alexander also cites cases that involve constitutional challenges to nonstatutory notice, even though NAFTZI raised a constitutional challenge only regarding the public use and necessity determination.

See Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 315, 70 S. Ct. 652, 94 L. Ed. 2d 865 (1950) (plaintiff challenged the constitutional sufficiency of notice by publication to beneficiaries of a common trust fund for settlement of fund’s first account); City of Tukwila v. King County, 78 Wn.2d 34, 38, 469 P.2d 878 (1970) (county challenged sufficiency of notice to landowners adjacent to the area that the city had annexed; the court held that even defective notice by publication was sufficient to provide surrounding landowners a chance to be heard). Miller, 156 Wn.2d at 423 (J.M.

Johnson, J., dissenting); Miller, 156 Wn.2d at 423-24 (Alexander, C.J., dissenting) (quoting Glaspey & Sons, Inc. v. Conrad, 83 Wn.2d 707, 713, 521 P.2d 1173 (1974) (notice was insufficient because although the original ordinance was made available at the zoning board’s office before the meeting, the board made changes to them that were not available to the public until the meeting took place)). One dissent claims that PUD was “caught with its hand in the public’s cookie jar trying to sneak one of the public’s cookies,” without properly asking permission, when it enacted Resolution 7643.

Dissent (Chambers, J.) at 591, 594-95 (emphasis added). It concludes, therefore, that PUD should have started over rather than adopting Resolution 7680. The analogy is inapt. The public did not own the “cookie jar” that PUD sought; NAFTZI owned it. The public does not grant permission to take a “cookie” at the meeting to authorize condemnation; it merely has the opportunity to be heard on the issue. In fact, the decision to take the “cookie” does not occur at the public meeting at all; it occurs at the judicial hearing for the condemnation action.

The analogy conflates the public meeting authorizing condemnation and the judicial hearing on the condemnation action.

Article I,

section 16 of the state constitution states, “[wlhenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined as such, without regard to any legislative assertion that the use is public.” As noted earlier, Resolution 7643 expressly states that the purpose of the condemnation was to generate electric current for its customers.

PUD also produced declarations regarding fluctuations in demand for electricity, reserve load requirements, the tentative nature of its forecasts for hydroelectric power, and the backup role the generators would serve in cases of power interruption from other sources. One dissent claims that the trial court “assumed a public use” and ignored “important evidence” suggesting an improper purpose for the condemnation. Dissent (J.M. Johnson, J.) at 603. The record shows that the trial court heard extensive evidence on the public use issue from both parties before rendering its decision.

The fact that the trial court did not explicitly set out its reasons for concluding that the use was public does not mean it assumed the use was public. Justice J.M. Johnson’s dissent continues to conflate the public use and necessity determinations, arguing that the more deferential test we apply to necessity determinations ignores the mandate in

article I,

section 16 for a judicial determination. Dissent (J.M. Johnson, J.) at 603. However, as noted at supra note 20,

article I,

section 16 states only that the public use determination is a judicial question. In addition, as this dissent acknowledges, the test we apply to determine necessity is one we have applied consistently for over 50 years. Dissent (J.M. Johnson, J.) at 603 (citing Seattle Popular Monorail, 155 Wn.2d at 629 (citing Hemenway, 73 Wn.2d at 139; City of Tacoma v. Welcker, 65 Wn.2d 677, 684, 399 P.2d 330 (1965); State ex rel. Church v. Superior Court, 40 Wn.2d 90, 91, 240 P.2d 1208 (1952))). This dissent also argues that due process demands that trial courts enter specific findings of public use and necessity. Id. at 606.

Again, however, the only authority cited for this proposition is the dissent in Miller. Id. We are not aware of any controlling authority requiring a trial court to set out the specific facts on which the court relied in reaching its determinations of public use and necessity. One dissent asserts that substantial evidence indicated that the necessity of using the diesel generators for reserves was “false, and only post facto justification” for condemnation, and that the trial court’s review standard was lax. Dissent (J.M. Johnson, J.) at 604.

The prudence of the initial decision to purchase the generators is irrelevant to the question of whether the condemnation was necessary. The trial court correctly recognized that the parties’ focus on PUD’s decision to purchase the generators inappropriately diverted the focus of the inquiry from the question of whether it was necessary to condemn the land once the generators were already there. RP (Apr. 1, 2004) at 92.

Thus, the trial court’s review standard was not lax merely because, after hearing evidence from both parties, it did not accept NAFTZI’s claim that PUD had used the generators as a pretext for the condemnation or it took the cost to remove the generators into consideration when it made its necessity determination. Nor were PUD’s arguments about its intended uses for the generators “false” merely because, in hindsight, operating the generators turned out to be unworkable.