                                                                       FILED 

                                                                  SEPTEMBER 10,2015 

                                                                I n the Office of the Clerk of Court 

                                                              W A State Court of Appeals, Division III 





           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                              DIVISION THREE 


CITY OF WALLA WALLA,                         )
                                             )         No. 32604-7-111
                     Respondent,             )
                                             )
      v.                                     )
                                             )
TERRY KNAPP, property owner, and             )         UNPUBLISHED OPINION
Walla Walla County, lienholder,              )
                                             )
                     Appellant.              )

      KORSMO, J. -     Terry Knapp appeals from an order condemning his property,

challenging the procedure used by the city of Walla Walla (City) in the exercise of its

eminent domain authority. We affirm.

                                         FACTS

      Mr. Knapp owned a house at 712 Whitman Street that had been subject to

complaints by neighbors dating to the 1990s. The neighborhood was characterized as one

with quality older homes in generally good maintenance only five blocks from Pioneer

Park in Walla Walla.

      City involvement with the property dates to 1995 when it placed a "stop work"

order on the property because work in progress exceeded the scope of a permit. In 2001,

the City declared a shed of substandard construction to be dangerous. In 2003, the house
No. 32604-7-III
City o/Walla Walla v. Terry Knapp


was in disrepair, violated several building codes, and the property was being used to store

at least 15 vehicles. Mr. Knapp made efforts to comply with the City's codes and

standards at the City's request, but the subsequent inspection revealed additional problems

not observable from the exterior. These included unauthorized and incomplete additions to

the building, as well as structural, plumbing, electrical and mechanical violations that

rendered the dwelling unsafe. Clerk's Papers (CP) at 323-328. The resulting problems

were extensive and included inadequate safety exits and fire hazards, inadequate

ventilation for sewage, inadequate temperature control, exposed live wiring, and creation

of an attractive nuisance. Consequently, Mr. Knapp was ordered to vacate. CP at 324.

       Mr. Knapp did not correct the substandard conditions, but in 2005 he obtained a

permit for repairs. He, however, failed to get inspections and the permit was revoked. By

that time, he also had stopped paying the utility bill, leading to the water being

disconnected in February of2005. The City again declared the house dangerous and

ordered its abatement. CP at 331-339. Mr. Knapp removed the notices and continued to

live there. 1 In 2007, the City again issued a "stop work" order and posted notices of

danger. CP at 397. In addition to the problems with the structure, the property had




       1 Since the property was without water, its backyard began being used by occupants
to defecate. See CP at 760, 765, 767.

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No. 32604-7-III
City of Walla Walla v. Terry Knapp


regressed back toward its pre-2003 condition, with numerous junk vehicles, bee hives and

debris. The City cited Mr. Knapp for these conditions. 2

       The conditions persisted until the City began instituting condemnation proceedings.

On September 3,2013, the City Manager determined the property to be a threat to public

health, safety, and welfare. The City notified Mr. Knapp of the proceedings and then set

the matter for consideration before the City Council on September 11,2013. CP at 969,

971. After due consideration, the City Council determined that the property was a blight

because it had not been lawfully occupied since 2005, and was a threat to the public health,

safety and welfare. Accordingly, the council approved acquisition of the property. CP at

975-977.

      The City first unsuccessfully attempted to acquire the property by negotiations. On

February 12,2014, the City Council authorized condemnation proceedings. CP at 986­

988. Two months later the City filed the condemnation petition in Walla Walla County

Superior Court. On June 16, a hearing was held to determine public use and necessity.

The trial court did not take live testimony, but considered submissions from the City and

from Mr. Knapp and heard argument from the parties. The trial court found:

      2.9 The executive authority of the City of Walla Walla properly determined
      on September 3,2013 that the dwellings, buildings, other structures, and
      real property located at 712 Whitman Street in Walla Walla, Washington,


      2  In addition to the physical conditions, the property became the site of criminal
activity including possession of stolen property and a marijuana grow. CP 446, 449-596.

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No. 32604-7-III
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       constitute a threat to public health, safety, and welfare based upon its well­
       documented years of repeated and continuous code violations.

       2.10 A dwelling, building, and other structures exist on the property, and
       such dwelling, building, and other structures have not been lawfully
       occupied for a period of one year or more.

          2.10.1 The property has been without water since 2005, and it has been
       without water ever since. Any occupancy of the property since 2005
       unlawfully violated the International Maintenance Code.

          2.10.2 The dwelling on the property was properly declared to be
       dangerous and unfit for human occupancy in 2005. Any occupancy of the
       property since 2005 unlawfully violated the Uniform Code for the
       Abatement of Dangerous Buildings.

       2.11 The dwelling, buildings, other structures, and real property located at
       712 Whitman Street in Walla Walla, Washington are a blight on the
       surrounding neighborhood.

CP at 1058-1059. 3

       Based on these findings, the trial court concluded that condemnation of the property

was a public use and its acquisition by the City was a matter of public necessity. CP at

1059. Mr. Knapp then timely appealed to this court.

                                        ANALYSIS

       Mr. Knapp contends that the trial court was required to hear testimony and resolve

disputed facts at trial, and that the evidence did not support the trial court's ruling. He also




       3 Mr. Knapp assigns error to these noted findings and four additional findings not
recited here.

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No. 32604-7-111
City of Walla Walla v. Terry Knapp


seeks attorney fees. We treat the first two contentions as one, and consider these arguments

in the noted order, after first reviewing the statutory process governing this action.

       The process for condemning "blighted property" is set forth in chapter 35.80A RCW.

RCW 35.80A.OI0 allows condemnation of allegedly blighted property only on proof of any

two of the following three "blight" factors:

          (1) If a dwelling, building, or structure exists on the property, the
          dwelling, building, or structure has not been lawfully occupied for a
          period of one year or more; (2) the property, dwelling, building, or
          structure constitutes a threat to the public health, safety, or welfare as
          determined by the executive authority of the county, city, or town, or the
          designee of the executive authority; or (3) the property, dwelling,
          building, or structure is or has been associated with illegal drug activity
          during the previous twelve months.

The City relied upon the first two factors in this action.

       Condemnation must occur "in accordance with the notice requirements and other

procedures for condemnation provided in Title 8 RCW." RCW 35.80A.01O. Procedurally,

the local governing body must first adopt a resolution declaring that the acquisition of

the property is necessary to eliminate a neighborhood blight. Id. Once a resolution is

adopted, condemnation requires three separate judgments from the local county court.

RCW 8.12.050; City ofDes Moines v. Hemenway, 73 Wn.2d 130, 138,437 P.2d 171

(1968). The first and most relevant here, is a decree of public use and necessity. Des

Moines,73 Wn.2d at 138. The second and third determine the amount of compensation

and transfer title for the property. Id. A decree of public use and necessity may be entered


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No. 32604-7-111
City of Walla Walla v. Terry Knapp


upon proof that "(1) the use is really public, (2) the public interest requires it, and (3) the

property appropriated is necessary for that purpose." In re Condemnation Petition of

Seattle Popular Monorail Auth., 155 Wn.2d 612, 629, 121 P.3d 1166 (2005). The

legislature's declaration that a use is a "public use" is not dispositive although it will be

accorded great weight. Des Moines, 73 Wn.2d at 13 8. The concept of "public use" is a

fluid one:

       The words "public use" are neither abstractly nor historically capable of
       complete definition. The words must be applied to the facts of each case in
       the light of current conditions.

Miller v. City ofTacoma, 61 Wn.2d 374, 384, 378 P.2d 464 (1963).

       Procedural Challenges

       With these principles in mind, it is time to turn to Mr. Knapp's arguments. Two of

them address the procedure followed in the trial court--consideration of the evidence on

paper without hearing testimony and resolution of disputed facts without trial. These

arguments also were raised, and rejected, in City ofBlaine v. Feldstein, 129 Wn. App. 73,

117 P.3d 1169 (2005). In Blaine, the city petitioned to condemn a portion of the Feldstein

property for use as a boardwalk. The property owner sought an evidentiary hearing, but

the trial court rejected the request. Id. at 75. On appeal from an order of public use and

necessity, appellant initially challenged the decision to deny an evidentiary hearing.

Division One of this court upheld the trial court, finding no statutory requirement that

testimony be taken at the hearing even while noting that many courts had conducted

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No. 32604-7-111
City a/Walla Walla v. Terry Knapp


evidentiary hearings on condemnation motions. Jd. at 76-77. Instead, the motion

procedure to be followed was one left to the discretion of the trial court under CR 7(b).

Jd. at 76. If there are questions of credibility and factual issues requiring testimony, the

court should take testimony. Jd.

       Mr. Knapp relies upon the latter observation, contending that he raised factual

questions justifying a trial on the merits of the "blight" allegation. Blaine also answered

this contention. There the property owner took issue with the boardwalk project and

requested that testimony be taken, but did put his objections and evidence into the record

on paper. Jd. at 75-77. This court determined that "the facts necessary to resolve the case

are not in dispute" and that there were "no credibility issues before the court." Jd. at 77.

The critical facts were whether the boardwalk constituted a public use and whether the

Feldstein property was a necessary part of that use. Jd.

       We reach a similar conclusion here. Although Mr. Knapp presented evidence that

he was trying to bring the building up to code and that no one was living there, these facts

do not present factual contlicts requiring testimony to resolve them. We assume that the

trial judge accepted the truth of Mr. Knapp's allegations, but that information did not

contradict any of the City's evidence and, thus, did not require the judge to conduct a

testimonial hearing.

       While the factual circumstances of this case differ enough from Blaine that whether

a hearing should have been held presented a closer question than in that case, there is an

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No. 32604-7-111
City of Walla Walla v. Terry Knapp


additional significant fact here that was not present in Blaine. There the property owner

sought an evidentiary hearing with testimony. Id. at 75. Here, there is no evidence that

Mr. Knapp sought testimony. Absent a request for an evidentiary hearing, there is no basis

for finding that the court failed to exercise discretion in denying one.

       Accordingly, for all of the noted reasons, we conclude that the trial judge did not

abuse his discretion in considering the extensive4 record without testimony. There were no

procedural irregularities.

       Sufficiency ofthe Evidence

       Mr. Knapp also argues that the evidence did not establish "blight" and therefore did

not support the determination of public use and necessity. Properly viewed, the evidence

supported that determination.

       We review this claim for substantial evidence. Id. at 79. Substantial evidence exists

if the evidence is sufficient to persuade a fair-minded rational person of the truth of the

evidence. In re Estate ofJones, 152 Wn.2d 1, 8,93 P.3d 147 (2004). Appellate courts do

not find facts and cannot substitute their view of the facts in the record for those of the trial

judge. Thorndike v. Hesperian Orchards, Inc., 54 Wn.2d 570,575,343 P.2d 183 (1959).

Accordingly, the presence of conflicting evidence does not prevent evidence from being

"substantial." E.g., Merriman v. Coke ley , 168 Wn.2d 627, 631, 230 P.3d 162 (2010).



       4   The City presented over 1,000 pages of written material. CP at 30-1037.

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No. 32604-7-III
City of Walla Walla v. Terry Knapp


       The City relied upon the first two factors found in RCW 35 .80A.O 10: (l) the

building had not been lawfully occupied for a period of one year; and (2) the building

constituted a threat to the public health, safety, or welfare as determined by the executive

authority. It did not rely upon the third factor-use of the property as a drug house-

although the City did present evidence that Mr. Knapp had grown marijuana there and had

been convicted of using the property to sell marijuana. s

       As to the first factor, the City presented evidence that the building had been

repeatedly tagged as uninhabitable and that lawfully no one could live in the building since

it did not have a water supply. In response, Mr. Knapp does not actually challenge the

sufficiency of that evidence, but, instead, reconstructs the language of the statute in four

syllogisms. He contends that the property was "lawfully unoccupied" because no one was

living there and Mr. Knapp still was trying to rehabilitate the building. While we

appreciate counsel's use of formal logic and, indeed, encourage all attorneys to make use

of logic where appropriate, this argument does not avail Mr. Knapp on this occasion. First,

we conclude that counsel's efforts, while creative, present false syllogisms. More

critically, the statute does not bear the syllogistical construction counsel placed on it.

       In relevant part, the factor is satisfied if the "building ... has not been lawfully

occupied for a period of one year or more." RCW 35.80A.OI0. This language is clearly


       Presumably this was because the noted drug offenses occurred more than 12
       S
months before the condemnation action.

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No. 32604-7-111
City of Walla Walla v. Terry Knapp


directed to abandoned buildings that have not been "lawfully" (i.e., no trespassers)

occupied for a period of time. Mr. Knapp agreed that the building was unoccupied and that

the water had been cut-off since 2005, making the building uninhabitable as a matter of

law. The question was whether or not the building was "unoccupied" for the requisite time

period, not whether the lack of occupancy was lawful or unlawful. Substantial evidence

supported the determination that the building had "not been lawfully occupied" for at least

one year.

       The second factor is whether the executive authority had determined that the

building constituted a threat to the public health, safety, or welfare. Again, the evidence

supported that determination. Not only had the City Manager and City Council expressed

their own findings along those lines, the City presented plentiful evidence of the city's

building codes and Mr. Knapp's building'S failure to satisfy the requirements of those

codes, rendering the building uninhabitable. In response to this evidence, Mr. Knapp

argues that the City's evidence did not address the present circumstances of the building

and did not consider his own affidavit that the building was not a threat to the public due to

his repairs.

       The short answer is that the statute requires lack of occupancy over a substantial

period of time, thus making the building's history relevant to the executive's determination

that the building currently is a threat to the public interest. The building had, for quite

some time, been suffering from a number of substantial defects rendering it unable to

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No. 32604-7-II1
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shelter humans and Mr. Knapp had never remedied the defects by obtaining the necessary

permits and receiving approval from the relevant building code inspectors. The existence

of documented long-term problems and the lack of approved, permitted corrections to those

problems amply supported the executive authority's determination that the building could

not currently be inhabited. The trial court correctly concluded that the evidence supported

the executive's ruling.

       Substantial evidence supported the determination of public use and necessity. The

trial court did not err.

       Attorney Fees

       Finally, Mr. Knapp requests attorney fees under the authority ofRCW 8.2S.07S(1)(a).

However, he has not prevailed as required by that section of the statute.

       The provision states:

       (1) A superior court having jurisdiction of a proceeding instituted by a
       condemnor to acquire real property shall award the condemnee costs
       including reasonable attorney fees and reasonable expert witness fees if:
           (a) There is a final adjudication that the condemnor cannot acquire the
       real property by condemnation.

       When a court rules that the condemnation has failed, the property owner can recover

his costs, including attorney fees and expert witness fees. That did not happen in this

action since we affirm the ruling of public use and necessity. Accordingly, Mr. Knapp has

no basis for recovering attorney fees for this action to this point. Whether he may recover




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No. 32604-7-II1
City of Walla Walla v. Terry Knapp


fees in the future for the valuation and title transfer aspects of this case awaits those

developments.

       The judgment is affirmed.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR: 





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