Cobb v. Snohomish County

829 P.2d 169, 64 Wash. App. 451

• Court: Court of Appeals of Washington
• Decided: February 28, 1992
• Docket: 24680-1-I
• Status: Published

Opinions

Pekelis, J.

Larry Cobb, Robert Hale, and R/L Associates, Inc. (Cobb), challenge the validity of Title 26B of the Snohomish County Code (SCC) which requires that developers share in the cost of improving road systems impacted by proposed land development projects. Cobb contends that the ordinance imposes unauthorized taxes, fees or charges on developers, violates substantive due process, and effects a taking of private property without just compensation.

I

A. SCC Title 26B.

On May 11, 1982, the Snohomish County Council adopted a revised road ordinance, SCC Title 26B, in an effort to address those problems associated with the increasing demand placed on county roads by intensified land use and rapid population growth. SCC 26B.50.010.

The declared purpose of the ordinance is to "ensure that public health, safety and welfare will be preserved by having adequate roads to new and existing developments by requiring all land development projects in unincorporated Snohomish county... to pay for a proportionate share of the cost of road improvements due to such land developments." Former SCC 26B.50.020.

To effectuate this purpose, the ordinance requires that developers agree to perform certain remedial measures before receiving land use approval from the County. Former SCC 26B.52.010. Developers are required, upon request, to prepare a comprehensive traffic study detailing the immediate and long-term effects of the proposed development on the level of traffic service (LOS) of the surrounding road system.¹ Former SCC 26B.53.030(f); see also former SCC 26B.52.0KX1). The ordinance incorporates the LOS criteria outlined in the Highway Capacity Manual, a guide published by the Transportation Research Board of the National Research Council. Former SCC 26B.51.010. The criteria are based on the unused capacity of the particular lane in question, and may range from "A" (little or no traffic delays) to "E" (very long traffic delays).

Under chapter 26B.55, developers may have to agree to contribute to certain road improvements in order to obtain project approval. In general, the greater the expected traffic delay following a project's completion, the greater the obh-gation imposed upon the developer. Thus, where a project will be served by a road system of LOS A or B, the developer has no obligation to make off-site road improvements. At most, the developer may be required to perform frontage road improvements or dedicate an additional right of way. Former SCC 26B.55.020.

Where a project will be served by a road system of LOS C, the developer is obligated to agree not to protest formation of a road improvement district (RID) and also may be required to perform frontage road improvements or dedicate an additional right of way. Former SCC 26B.55.030.

In contrast, "developers whose projects will be served by a road system which will be at level of service D following completion of the development shall incur obligations to mitigate the direct impact of said development." This is to be done by executing a valid written voluntary agreement with the county in which the developer agrees to pay a proportionate share of the cost of mitigation improvements. Former SCC 26B.55.040(1). The proposed development will not be approved until all necessary funding is committed and the project is under contract or construction. Former SCC 26B.55.040(2).

B. Cobb's Subdivision.

In December 1987, Cobb applied to the County for preliminary plat approval to subdivide a 5.07-acre parcel of property into 18 single family lots. The proposed subdivision, named "Zenith Village", was located north of 234th Street S.W. and west of State Highway 99 (SR 99). Cobb was a contract purchaser of part of the property and an agent for the owners of the remaining portions. Pursuant to SCC 26B.53, Cobb furnished the County Department of Public Works (DPW) with a traffic study detailing, inter alia, the impacts of the subdivision on the 234th Street S.W./SR 99 intersection. The study concluded that:

[t]he intersection of 234th St. S.W. and Highway 99 would operate at the C/D range as indicated by the attached analysis. Traffic movements with proposed subdivision traffic all operate at LOS C. It is only those movements approaching Highway 99 from the east and Highway 99 southbound left turn movements that would operate at LOS D. The proposed subdivision would not contribute any vehicles to these movements.

Although the DPW found Cobb's study generally acceptable, it took the position that the question of whether the development directly impacted traffic conditions was determined by characterization of the entire 234th Street S.WJ SR 99 intersection. Since this intersection as a whole would operate at LOS D, Cobb was asked to submit a mitigation proposal pursuant to former SCC 26B.55.040(l)(a). Cobb and the DPW entered into negotiations to determine the appropriate fee to mitigate the direct impact of the development on the intersection in question but were unable to reach an agreement on the correct formula to be applied. Thus, under former SCC 26B.55.070(2), the matter was brought before a hearing examiner to decide on the correct impact mitigation measures to be undertaken as a condition of plat approval.

At the hearing the DPW claimed that because Cobb's development would result in adding vehicles to an intersection which was already at LOS D, his proportionate share should be based upon full improvement of the entire intersection. It thus asked the hearing examiner to reject Cobb's mitigation offer, which was based simply on a proportionate share of the estimated $10,000 cost of a left turn lane for the west leg of 234th/SR 99 intersection, the only leg his development would directly affect.

The hearing examiner found Cobb's traffic impact mitigation offer unacceptable, determining that, as the DPW contended, only full improvement of the entire intersection from LOS D to LOS B or better satisfied the mitigation requirement. Additionally, the hearing examiner noted that because the State Department of Transportation had no plans for major signalization or road improvements, Cobb's offer for the 234th Street SW/SR 99 intersection was infeasible.

On appeal, the Snohomish County Council upheld the hearing examiner's decision. Cobb then brought an action in Snohomish County Superior Court, requesting that SCC Title 26B be declared invalid as an unconstitutional tax. The trial court denied Cobb's motion for declaratory relief on the grounds that its "interpretation of SCC 26B that the maximum exaction required from an applicant cannot exceed the pro rata cost of roadway improvements attributable to an applicant's proposed project" rendered the ordinance constitutional.

The trial court ordered the County to grant Cobb's application for preliminary plat approval upon payment of his pro rata share of the proposed left turn lane. In essence, the trial court adopted Cobb's mitigation offer which the hearing examiner had rejected. The court gave Cobb the choice of paying a flat $25 fee or an exaction based on a revised calculation of Cobb's proportional share. He paid the $25 fee under protest.

Cobb appeals, challenging both the validity of SCC Title 26B on its face and as applied to his request for preliminary plat approval of his proposed subdivision.

II

Cobb contends first that SCC Title 26B is nothing more than a scheme for imposing taxes, fees, or charges on developers in violation of RCW 82.02.020.

RCW 82.02.020 provides in relevant part:

[N]o county, city, town, or other municipal corporation shall impose any tax, fee, or charge, either direct or indirect, on the construction or reconstruction of residential buildings, commercial buildings, industrial buildings, or on any other building or building space or appurtenance thereto, or on the development, subdivision, classification, or reclassification of land.

Laws of 1982, 1st Ex. Sess., ch. 49, § 5 (effective July 1, 1982).

Early cases interpreting this statute focused on "whether a development fee constituted an unauthorized tax or a valid regulatory scheme, as that distinction was explained in Hillis Homes, Inc. v. Snohomish Cy., 97 Wn.2d 804, 809, 650 P.2d 193 (1982)". R/L Assocs., Inc. v. Seattle, 113 Wn.2d 402, 408, 780 P.2d 838 (1989). However, as R/L Associates makes clear, the "tax/regulation distinction" is no longer relevant because the statutory prohibition against "taxes, fees, or charges" is so all-encompassing it applies to all development fees unless specifically excepted. R/L Assocs., 113 Wn.2d at 409.

Accordingly, if SCC Title 26B required developers to pay a fee, tax, or charge even if that were specifically used for payment of off-site road improvements, it would run afoul of RCW 82.02.020. However, RCW 82.02.020 also creates an exception for "voluntary agreements . . . that allow a payment in lieu of a dedication of land or to mitigate a direct impact that has been identified as a consequence of a proposed development, subdivision, or plat." (Italics ours.) In other words, a developer may enter into an agreement with local government to pay a fee which local government has established is "reasonably necessary as a direct result of the proposed development or plat." RCW 82.02.020; see also Southwick, Inc. v. Lacey, 58 Wn. App. 886, 895, 795 P.2d 712 (1990); Comment, Subdivision Exactions in Washington: The Controversy Over Imposing Fees on Developers, 59 Wash. L. Rev. 289, 298 (1983-1984).

It is apparent that Snohomish County has attempted in SCC Title 26B to comply with the "voluntary agreement" exception in RCW 82.02.020. On their face, the negotiated agreement provisions in former SCC 26B.55.040 mirror the requirements for the voluntary agreement exception within the statute. The provisions provide a scheme which allows the developer to agree to pay for its share of reasonably necessary improvements to roads directly impacted by the proposed development. See, e.g., former SCC 26B.55-.040(l)(c), (d); see also former SCC 26B.55.080.

Cobb asserts that the agreements provided for in former SCC 26B.55.040 are not "voluntary" within the meaning of RCW 82.02.020 because approval of the proposed development is conditioned upon the agreement's execution. We disagree. Within the context of RCW 82.02.020, the word "voluntary" means precisely that the developer has the choice of either (1) paying for those reasonably necessary costs which are directly attributable to the developer's project or (2) losing preliminary plat approval. The fact that the developer's choices may not be between perfect options does not render the agreement "involuntary" under the statute. Comment, 59 Wash. L. Rev. at 298; see generally R. Settle, Washington Land Use and Environmental Law and Practice 114-15 (1983).²

Moreover, Cobb does not claim that he has an absolute right to receive plat approval; he clearly does not. The county is authorized to withhold approval if appropriate provisions have not been made for the public health, safety, and general welfare. RCW 58.17.110; see also Southwick, Inc. v. Lacey, 58 Wn. App. 886, 892-93, 795 P.2d 712 (1990); Miller v. Port Angeles, 38 Wn. App. 904, 909, 691 P.2d 229 (1984), review denied, 103 Wn.2d 1024 (1985). In adopting SCC Title 26B, Snohomish County had declared that new developments have the potential of impacting traffic in such a way as to create serious health, safety and welfare problems. The purpose of former SCC 26B.55.040 is to make appropriate provisions for mitigating the direct impact of new developments on existing roads.

Accordingly, we conclude that the voluntary agreement scheme contemplated by SCC Title 26B is not violative of RCW 82.02.020. The ordinance properly permits voluntary agreements between developers and the county for payment of a fee to mitigate the direct impact of the traffic problems of the county. In so deciding, however, we do not reject Cobb's challenge to the specific provisions of the ordinance as applied to his proposed subdivision. Cobb correctly contends that the traffic his development would contribute, when properly calculated under the ordinance itself, does not justify application of the LOS D provisions.

Under the statute, it was incumbent upon the County to show that the required improvements were "reasonably necessary" to mitigate the direct impact of the development. Southwick, Inc., 58 Wn. App. at 895. This decision is reviewed under the arbitrary and capricious standard. Southwick, Inc., 58 Wn. App. at 895 (citing Pentagram Corp. v. Seattle, 28 Wn. App. 219, 228, 622 P.2d 892 (1981)).

Here, SCC Title 26B expressly incorporates the Highway Capacity Manual's definitions relating to traffic design, traffic flow and traffic operation. According to the manual, the LOS within an intersection relates to the unused capacity of the traffic lane in question within the intersection, not the entire intersection itself.

While Cobb's development contributed some traffic to LOS C traffic lanes, it contributed none whatsoever to the LOS D traffic lanes. The trial court apparently recognized this and thus attempted to correct the hearing examiner's error by limiting Cobb's obligation to the proportionate cost of the left turn lane of the intersection. However, the trial court's ruling is also improper. Because the lane impacted by Cobb's development would be at LOS C, not D, under SCC 26B.55.030, the court had no authority to require mitigation at all. The only obligation which the County could impose on Cobb was that he agree not to protest the formation of an RID.

Accordingly, we hold that while the mitigation scheme provided for in SCC Title 26B does not on its face violate RCW 82.02.020, both the hearing examiner's and the trial court's application of SCC Title 26B to Cobb's plat was arbitrary and capricious. Therefore, Cobb's $25 payment is to be refunded and the plat approval granted in conformance with the requirements of former SCC 26B.55.030, not .040.³

III

Cobb has requested attorney fees on a number of grounds. Attorney fees may not be awarded in the absence of statutory authority or an applicable equitable or contract provision. Blue Sky Advocates v. State, 107 Wn.2d 112, 122, 727 P.2d 644 (1986). We conclude that the only possible ground on which he would be entitled to attorney fees here would be under RCW 64.40.020, which provides in part:

(1) Owners of a property interest who have filed an application for a permit have an action for damages to obtain relief from acts of an agency which are arbitrary, capricious, unlawful, or exceed lawful authority, or relief from a failure to act within time limits established by law: Provided, That the action is unlawful or in excess of lawful authority only if the final decision of the agency was made with knowledge of its unlawfulness or that it was in excess of lawful authority, or it should reasonably have been known to have been unlawful or in excess of lawful authority.

(2) The prevailing party in an action brought pursuant to this chapter may be entitled to reasonable costs and attorney's fees.

(Italics ours.)

However, because Cobb has reserved the damages issue under this statute, his request for attorney fees is premature. On remand if Cobb prevails in his action for damages and the trial court awards attorney fees and costs, Cobb should also receive an award of fees and costs incurred in this appeal in such sum as the trial court shall determine reasonable.

Accordingly, we reverse and remand for further proceedings consistent with an interpretation of Cobb's obligations under former SCC 26B.55.030 and his claim for damages.

1 Former SCC 26B.51.080 defines a "road system" as: ”[T]hose existing or proposed county roads (if any) which are located in the development site and/or between the development site and the nearest state highway or highways, projected to be utilized by ten percent or more of the traffic generated by the development."

2 We disagree with Cobb's assertion that Ivy Club Investors Ltd. Partnership v. Kennewick, 40 Wn. App. 524, 699 P.2d 782, review denied, 104 Wn.2d 1006 (1985) holds that a fee is not voluntary if the proposed development is conditioned upon its payment. Although the court characterized the park fees in that case as involuntary, it did so within the context of the Hillis Homes, Inc. v. Snohomish Cy., 97 Wn.2d 804, 650 P.2d 193 (1982) tax/fee test, rejected in R/L Associates. Ivy Club, 40 Wn. App. at 529. There is no indication that the court's characterization was based on an analysis of the voluntary agreement exception in RCW 82.02.020.

3 Cobb also claims that SCC Title 26B unconstitutionally deprives him of substantive due process and effects a taking without just compensation. We have rejected Cobb's claims insofar as they are based on the assertion that SCC Title 26B is invalid on its face as a tax, fee, or charge. To the extent Cobb also asserts that former SCC 26B.55.040(2) can result in the developer having to pay more than the developer's pro rata cost if the county is unwilling to contribute funding, we decline to address this claim. Because our holding takes Cobb's development outside the LOS D category, we need not and do not decide whether the LOS D requirements under former SCC 26B.55.040 are constitutional.