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Opinion in PDF Format
Court of Appeals Division III
State of Washington Opinion Information Sheet
SOURCE OF APPEAL
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JUDGES
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COUNSEL OF RECORD
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View the Opinion in PDF Format
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CITIZENS PROTECTING RESOURCES, ) No. 27803-4-III
a Washington nonprofit corporation, )
)
Appellant, )
)
v. )
)
YAKIMA COUNTY, a political subdivision )
of the state of Washington; YAKIMA ) Division Three
COUNTY FLOOD CONTROL ZONE )
DISTRICT, a Washington quasi municipal )
corporation; QUINTIN W. DOUGLAS and )
JOSEPHINE DOUGLAS, husband and wife, )
WILLIAM L. PETTIT and MARY PETTIT,)
husband and wife; DOUGLAS TOWING, a )
Washington sole proprietorship, DOUGLAS )
WRECKING, a Washington partnership, )
)
Respondents. ) PUBLISHED OPINION
Korsmo, J. -- Citizens Protecting Resources (CPR) challenges, on several
different theories, the relocation at significant expense to Yakima County of a wrecking
yard from a flood-prone island to a residential neighborhood. We conclude that the
No. 27803-4-III
Citizens Protecting Resources v. Yakima County, et al
relocation was authorized by the county's interest in limiting further flooding, and, thus,
did not constitute a gift of public property or credit, nor was it an improper land "swap."
We affirm.
FACTS
The procedural history of this case is extensive and involved. Douglas Wrecking
consisted of a wrecking yard and towing operation located on an island in the Yakima
River for 56 years. Foundations for the Donald-Wapato Bridge are set on the island.1
The bridge contains an access ramp to the island.
Yakima County has suffered significant flooding over the years and has been
designated as a federal disaster area four times since 1990. The major county flood in
1996 was described as "near catastrophic" in terms of damage to public and private
property. The Donald-Wapato Bridge was seriously damaged in the 1996 flood. The
Yakima County Flood Control Zone District (FCZD) was established on January 13,
1988, to direct flood prevention activities. The FCZD's mission was to reduce the risk of
flood damage to public and private property through various means.
By early 2001, several projects were identified for the FCZD to work on.
Relocating wrecking yards from critical hydrological areas became a major potential
project. Several wrecking yards located in the flood plains of the Naches and Yakima
1 Estimates of the island's size vary from 7 to 25 acres.
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Rivers had suffered large scale damage in the 1996 floods. A grant to study and assist in
relocation of automobile recycling yards was obtained. The FCZD concluded its analysis
of the flood plain wrecking yards in 2003.
Douglas Wrecking was selected as the pilot relocation project. Two grants
contributed more than $250,000 toward the project. One grant provided $125,000 to
purchase land on which to relocate the wrecking yard. The FCZD identified a location,
known as the "McDonald site," for possible relocation. Over the next three years,
Yakima County paid for options to purchase the property while a conditional use permit
was sought to permit a wrecking yard at the location. Neighbors, many of whom later
created CPR, opposed the project. The hearing examiner granted the conditional use
permit on March 31, 2005, subject to 22 conditions. Most of the conditions ensured
compliance with regulations and integrated the wrecking yard into the neighborhood.
There was no appeal of the conditional use permit decision.
Two years later, on May 29, 2007, the Yakima Board of County Commissioners
passed a resolution authorizing the FCZD to negotiate with Douglas for relocation. An
agreement was reached. The FCZD would reimburse Douglas up to $425,000 for the
relocation. A timeline and reimbursement percentages were included in the agreement.
Douglas would deed the island to Yakima County after completing the move and cleaning
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the island. The county would deed the McDonald site to Douglas after it completed the
island clean-up tasks.
The Yakima Board of County Commissioners exercised its option on the
McDonald site on November 30, 2007, and the sale closed three days later. A total of
$196,631.63 was spent acquiring the property. The sale price of $110,000 was
augmented by the three options and reimbursement for removing property fixtures.
CPR filed suit on April 4, 2008, seeking a declaratory judgment, injunctive relief,
and mandamus. CPR invited the Washington Attorney General to commence action
against Yakima County and the FCZD on behalf of county taxpayers. Discerning no
illegal activities, the Attorney General's Office declined to take action. A letter from the
Solicitor General advised CPR that the local government actions were not contrary to
law, the relocation served a fundamental government purpose, and the county received
value in eliminating the risk of loss to public property.
CPR filed a motion for summary judgment. Yakima County and the FCZD filed a
cross motion for summary judgment. The trial court issued a letter ruling outlining the
decision to grant summary judgment for the FCZD and Yakima County. The court
reasoned that the relocation served the fundamental government purpose of flood control,
the alleged disparity in value of the properties did not show intent to benefit the towing
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company, the land swap statute did not apply, and that the challenge was untimely. The
order granting summary judgment was entered January 16, 2009.
CPR timely appealed to this court.
ANALYSIS
This appeal presents three challenges to the relocation agreement. Appellant
contends that the transaction violates the constitutional prohibition on making a gift of
public property or public credit, violates the land swap statute (RCW 36.34.330), and also
allege that their challenge was timely brought. These present questions of statutory or
constitutional interpretation which this court reviews de novo. Cosmopolitan Eng'g
Group, Inc. v. Ondeo Degremont, Inc., 159 Wn.2d 292, 298, 149 P.3d 666 (2006)
("Statutory interpretation is a question of law, subject to de novo review."); State v.
Jackman, 156 Wn.2d 736, 746, 132 P.3d 136 (2006) (constitutional claim is reviewed de
novo).
The standard of review for cases resolved on summary judgment is a matter of
well-settled law. A reviewing court also considers those matters de novo, considering the
same evidence presented to the trial court. Lybbert v. Grant County, 141 Wn.2d 29, 34, 1
P.3d 1124 (2000). The facts, and all reasonable inferences to be drawn from them, are
viewed in the light most favorable to the nonmoving party. Id. If there is no genuine
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issue of material fact, summary judgment will be granted if the moving party is entitled to
judgment as a matter of law. Id.
With these standards in mind, we will address the arguments in the order presented
by the appellant.2
Gift of Public Funds and Credit
The state of Washington and its subdivisions are prohibited by the Washington
Constitution from making gifts of public property to citizens. Const. art. VIII, §§ 5, 7.
The limitation on state subdivisions provides:
No county, city, town or other municipal corporation shall hereafter
give any money, or property, or loan its money, or credit to or in aid of any
individual, association, company or corporation, except for the necessary
support of the poor and infirm, or become directly or indirectly the owner
of any stock in or bonds of any association, company or corporation.
Const. art. VIII, § 7.
The two provisions, despite some differences in wording, "have identical meaning,
as well as the same prohibitions and exceptions." CLEAN v. State, 130 Wn.2d 782, 797,
928 P.2d 1054 (1996). "The manifest purpose of these provisions in the constitution is to
prevent state funds from being used to benefit private interests where the public interest is
not primarily served." Japan Line, Ltd. v. McCaffree, 88 Wn.2d 93, 98, 558 P.2d 211
2 Because we address the merits of appellant's challenges, we need not address the
argument concerning the trial court's alternative holding that the challenge was also
untimely.
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(1977).
The test of whether these provisions have been violated is straightforward.
A two-pronged analysis is employed to determine whether a gift of
state funds has occurred. First, the court asks if the funds are being
expended to carry out a fundamental purpose of the government? If the
answer to that question is yes, then no gift of public funds has been made.
The second prong comes into play only when the expenditures are held to
not serve fundamental purposes of government. The court then focuses on
the consideration received by the public for the expenditure of public funds
and the donative intent of the appropriating body in order to determine
whether or not a gift has occurred.
CLEAN, 130 Wn.2d at 797-798.
CPR argues that the transaction between the respondents was both a gift of
property and an improper extension of government credit. Respondents contend that the
relocation serves the public interest. We agree. Flood prevention and amelioration is a
fundamental purpose of government, so there was no gift of public property or credit.
Appellant casts the issue as whether helping a business relocate is a fundamental
government purpose and concludes, unsurprisingly, that it is not. If that were the
question, we might agree. However, the entire context of these agreements shows that
the government purpose here was to fight flooding on the Yakima and Naches Rivers.
Fighting floods has long been recognized as a proper exercise of the police power.
In 1935, the Legislature declared that fighting floods was a "matter of public concern"
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and the State would "exercise . . . its sovereign and police powers" to assume full
regulatory control over flowing waters in the state. RCW 86.16.010.3 The courts
likewise have long recognized that addressing flood problems was a proper role of state
and local government. In upholding a Clark County storm water run-off ordinance, the
Washington Supreme Court once noted that "measures to prevent flooding in the entire
drainage basin, are well within the definition of police power as health, safety or welfare
measures." Teter v. Clark County, 104 Wn.2d 227, 233, 704 P.2d 1171 (1985).4
We have no trouble agreeing that flood fighting is a fundamental purpose of
government and has long been recognized as an activity within the powers of state and
local government. The record reflects that the relocation of Douglas Towing was for the
benefit of the public and came after a lengthy period studying the various means of
fighting flood problems. Substantial evidence in the record established that emptying the
island and allowing it to return to a natural state (and eventually erode) would safeguard
the Donald-Wapato Bridge and ameliorate downstream flood damage. While Douglas
Towing may have benefited from moving to a new facility prepared for it at public
3 Earlier flood control legislation is discussed in Short v. Pierce County, 194
Wash. 421, 429-430, 78 P.2d 610 (1938).
4 In an earlier case involving actions taken to fight a rampaging river, the court
noted: "It is the law that, in meeting an emergency, such as fire, flood, or pestilence,
public officials and private citizens may employ almost any available means in an
endeavor to control the danger." Short, 194 Wash. at 432.
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expense, that fact alone does not suggest that the purpose of the move was to benefit the
company. The evidence clearly and conclusively established that the move was part of
regional flood control efforts.
The relocation of Douglas Towing for flood control purposes served a fundamental
government purpose. Accordingly, we need not further analyze the arguments concerning
the alleged disparity in the costs of the relocation agreement.5 CLEAN, 130 Wn.2d at
797-798. Article VIII, section 7 of the Washington Constitution was not violated. There
was no gift of public property or of public credit.
Land Swap Statute
RCW 36.34.330, entitled "Exchange for privately owned real property of equal
value," provides:
The board of county commissioners of any county shall have authority to
exchange county real property for privately owned real property of equal
value whenever it is determined by a decree of the superior court in the
county in which the real property is located, after publication of notice of
hearing is given as fixed and directed by such court, that:
(1) The county real property proposed to be exchanged is not
necessary to the future foreseeable needs of such county; and
(2) The real property to be acquired by such exchange is necessary
5 Throughout its briefing, CPR erroneously compares the $800,000 total cost to
Yakima County of the land acquisition, site preparation, and relocation agreement to the
value of the unimproved island property it would eventually receive. In addition to
comparing apples to oranges, this approach totally ignores the significant costs
(approximately $160,000) incurred by Douglas Towing and the value to the county of
expected lower flood damage and control costs in the future. This agreement was not as
financially one-sided as appellant contends.
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for the future foreseeable needs of such county; and
(3) The value of the county real property to be exchanged is not
more than the value of the real property to be acquired by such exchange.
Appellant contends that by transferring Douglas Towing's interest in the island for
the improved McDonald site, respondents violated this statute because the properties
were not equally valued and court approval was not obtained. The trial court found the
statute inapplicable because this was not a simple land swap. Once again, we agree with
the trial court.
There appear to be no cases construing this statute. On its face, this statute
permits counties to exchange surplus real property for other real property that would be
useful to the county. That is not the situation here. The county needed the McDonald
property in order to facilitate moving one of the wrecking yards; it was not surplus land.
The McDonald site was purchased solely for the relocation project.
More fundamentally, appellant's attempt to isolate one component of a complex
agreement is not proper. The fundamental essence of the agreement with Douglas
Towing was to relocate the business out of the flood plain as one step in controlling
future flood damage. The costs of relocation, particularly site preparation, greatly
exceeded the value of the underlying parcels of land that were being exchanged. The
value to be realized by local government consisted of mitigated future flood damage and
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lower future flood-fighting costs. This was far more than a simple swap of unused
surplus land and we conclude, on these facts, that RCW 36.34.330 does not apply.6
Appellant contends, bitterly at times, that Yakima County spent too much money
in relocating Douglas Towing. There may have been less expensive methods of obtaining
the island and relocating the business. Nonetheless, it is fundamentally a political
decision for a political branch of government to weigh the expected value of this project
against its cost and determine whether the action is in the public interest. CLEAN, 130
Wn.2d at 795-797. The fact that a private party, Douglas Towing, might also benefit
does not mean either that the public did not benefit from the agreement or that the
purpose of the agreement was to benefit Douglas Towing. Id. at 796 (the fact that the
Seattle Mariners would benefit from a new stadium did not mean that the public would
not also benefit). Whether the deal between Yakima County and Douglas Towing was a
wise one was a decision for the Board of County Commissioners to make and, ultimately,
one for the public to consider at election time. The obligation of this court is to consider
whether our constitution and laws prohibited the agreement. We agree with the trial court
that they did not.
6 Merely dressing up a land swap with side agreements would not take a
transaction outside of this statute. Here, however, it is very clear that this is not a
disguised land swap; rather, the exchange of land is one portion of a large flood-fighting
campaign. Trial courts will be able to identify attempts to evade the statute.
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The judgment is affirmed.
_________________________________
Korsmo, J.
WE CONCUR:
______________________________
Schultheis, C. J.
______________________________
Sweeney, J.
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