Apr 28 2009

A non-comdemnatory entity

Published by at 11:41 am under Washington


A notable opinion out today from the Division III Washington Court of Appeals, on the subject of public and semi-public power over private property. Anyone concerned about the extent of government powers of eminent domain might look at it with some relief.

We’ve long looked askance at the proliferation of quasi-governmental entities; our general view has been that a bright line is better, that something should either be governmental or should not. Maybe this decision will offer a little encouragement along those lines.

Spokane Airports, et al v. RMA, Inc. d/b/a Spokane Airways, et al concerns an airport-related condemnation. The background is a little bureaucratic, but hang in for the conclusion.

Here’s the background:

The City of Spokane (City) and Spokane County (County) jointly operate Spokane International Airport. They entered into a joint agreement that empowered a board — the Spokane Airport Board — to operate, maintain, and develop Spokane International and other airports.

RMA, Inc., d/b/a Spokane Airways, is a fixed base operation at Spokane International. Fixed base operators provide support and maintenance services to private and commercial aircraft carriers from airport property. By 2006, RMA leased nine buildings from the Airport Board for its operations.

The Spokane Airport Board began work to construct a new air traffic control tower at Spokane International in 2006. The Federal Aviation Administration (FAA) requiredthat a line of sight from the tower be cleared, and this required that a number of buildings at Spokane International be removed, including a number leased to RMA. The City and the County passed a resolution on October 2, 2006, condemning the leases between the Airport Board and RMA.

“Spokane Airports, a Joint Operation with the City of Spokane and the County of Spokane” sued to condemn RMA’s leasehold interests for six affected buildings. Clerk’s Papers (CP) at 4. Spokane Airports then moved for a judicial determination of public use and necessity. The parties negotiated and stipulated to public use and necessity on December 22, 2006. The superior court entered a stipulated order for immediate possession and use on January 11, 2007. The two stipulated orders required RMA to vacate the subject property by March 20, 2007, and enabled Spokane Airports to construct and operate the new aviation control tower.

RMA sued Spokane Airports1 for declaratory relief, breach of contract, and inverse condemnation on April 12, 2007. It claimed the benefit of a number of provisions in its leases with the City and the County and specifically the right to insist that they provide other space on the airport grounds for RMA’s operations. Spokane Airports moved to consolidate RMA’s contract claims with the condemnation action. RMA opposed consolidation. The superior court ordered the condemnation and contract claims consolidated.

Spokane Airports next moved to dismiss RMA’s suit for failure to state a claim upon which relief could be granted. The trial court granted the motion as to RMA’s inverse condemnation claim. But the court refused to dismiss the contract claims. It concluded that the stipulated orders of use and necessity took RMA’s possessory interest in the property only.

Spokane Airports moved in August 2007 for a supplemental order of public use and necessity to expand the Airports’ take to include all rights arising out of the leases between the Airport Board and RMA. The court denied Spokane Airports’ motion for a supplemental order in a letter ruling on September 27, 2007. The court concluded that the December 22, 2006, order adjudicating public use and necessity condemned only the possessory interest under the leases, “leaving the balance of the lease[s] intact.” CP at 411. The superior court further noted: RMA had relinquished possession of the property; Spokane Airports had demolished the buildings; and the FAA had declared the fully constructed control tower operational. Ex post expansion of the order of public use and necessity, the court concluded, “provides no legitimate purpose.” CP at 411. The court then denied Spokane Airports’ motion. The order also bifurcated the eminent domain and breach of contract compensation issues for trial.

Spokane Airports appealed the order denying its motion for a supplemental order adjudicating public use and necessity and bifurcating the consolidated cases for trial. RMA moved this court to dismiss Spokane Airports’ appeal, contending that the superior court lacked subject matter jurisdiction to consider Spokane Airports’ petition for condemnation because Spokane Airports lacked the sovereign’s power of eminent domain.

A commissioner of this court denied RMA’s motion to dismiss. RMA then filed a “Supplemental Respondent’s Brief” in which RMA incorporated by reference and askedus to consider its motion to dismiss this suit. Spokane Airports moved to strike RMA’s supplemental brief. It argued that RMA inappropriately incorporated documents that were not included in the appellate record. RMA responded and moved to supplement the record with the appendices that RMA had included in its motions before the commissioner but had not included in the Clerk’s Papers on appeal. Spokane Airports objected.

Spokane Airports’ appeal, RMA’s motion to supplement the record, and Spokane Airports’ motion to strike are all now before us.

The appeals court’s conclusion?

“We conclude that Spokane Airports had no authority to condemn property, that its activities here were more than ministerial, and that the superior court then had no jurisdiction over the subject matter of this controversy.”

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