FILED APRIL 4, 2024 In the Office of the Clerk of Court WA State Court of Appeals Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
MARVIN ENTEL, JOYCE UPTMOR, ) and CAROLE MCDOWELL, ) No. 39563-4-III ) Respondents, ) ) v. ) ) UNPUBLISHED OPINION ASOTIN COUNTY, ) ) Appellant. ) COONEY, J. — Marvin Entel, on behalf of Carole McDowell and Joyce Uptmor
(Developers), submitted a preliminary subdivision application to Asotin County
(County). The County approved the application conditioned on the addition of a
secondary fire access road. The Developers appealed to the superior court, arguing that
the requirement was an unlawful indirect tax in violation of RCW 82.02.020, an
unconstitutional taking, and violative of their substantive due process rights. The No. 39563-4-III Entel, et al. v. Asotin County
superior court agreed the secondary fire access road requirement was an unlawful indirect
tax in violation of RCW 82.02.020 and concluded the County could not require that the
Developers build the secondary fire access road.
The County appeals, arguing that: the International Fire Code (IFC)1 authorizes
the County to require the Developers construct the secondary fire access road; the
requirement is not an indirect tax, does not constitute an unconstitutional taking, and is
not violative of the Developers’ substantive due process rights; and requiring the road
was a legitimate exercise of the County’s police power. We agree with the County and
reverse. BACKGROUND
In 2021, the Developers submitted a preliminary subdivision application to the
County for a housing development called Grandview Ridge. The application sought to
divide a 73.395-acre parcel into six lots. The application included plans for the addition
of a secondary road connecting Grandview Ridge to Critchfield Road, which is a paved
road south of Grandview Ridge. To the north, Grandview Ridge connects with West
Grandview Drive. West Grandview Drive provides ingress and egress to Grandview
Ridge and is the sole carriageway for the residents of over 30 other homes in the area.
The site of Grandview Ridge has steep slopes on all sides.
1 Int’l Code Council, International Fire Code (2021), https://codes.iccsafe.org /content/IFC2021P2.
2 No. 39563-4-III Entel, et al. v. Asotin County
Approximate location of Grandview Ridge. The larger “loop” in the northern portion of the inset is West Grandview Drive while the road to the south is Critchfield Road.
Proposed secondary fire access road connecting Grandview Ridge to Critchfield Road.
3 No. 39563-4-III Entel, et al. v. Asotin County
HEARINGS AND APPROVAL OF GRANDVIEW RIDGE
Shortly after the application for Grandview Ridge was submitted, the Asotin
County Planning Commission (Commission) held public hearings on the application.
Prior to the hearings, the county planner received a comment letter from Noel Hardin,
Fire Chief of Asotin County Fire District 1. In the letter, Chief Hardin expressed his
concerns about access to Grandview Ridge in the event of a fire. Chief Hardin wrote,
“[W]e see that [the Developers] have proposed a fire access road that would connect with
Critchfield Road, that would be a requirement.” Clerk’s Papers (CP) at 38. The stated
purpose of the secondary fire access road is to allow “fire apparatus [to] access
roads/driveways and [as a] fire apparatus turn around area.” CP at 38.
At the public hearing before the Commission, Mr. Entel confirmed that the
secondary fire access road would be “feasible” but “expensive.” CP at 279. Mr. Entel
also mentioned that the road “would be a gated roadway. It’d be basically a private
road, but gated.” CP at 305. The road would be owned and maintained by the owner of
“lot 6.” CP at 229.
Members of the public and the Commission chair commented that wildfires are an
issue in the area of Grandview Ridge. Chief Hardin advised that “fire danger is
obviously an issue in there” and that fighting the fires can be “challeng[ing]” in that area.
CP at 303. He recalled a recent fire near Critchfield Road that “race[d] uphill.” CP at
303. He noted that fighting wildfires in the area of Grandview Ridge can be hard,
4 No. 39563-4-III Entel, et al. v. Asotin County
especially when they are “wind-driven.” CP at 304. Chief Hardin commented that the
terrain, namely the steep hillsides, makes getting fire personnel to a wildfire in the area
difficult.
Chief Hardin informed the Commission that West Grandview Drive is the only
road that provides access to Grandview Ridge. He asked, “[I]f there were a traffic
accident or we had to block off for a fire on Grandview and we needed to move people in
and out, you know, how would we do that?” CP at 307. The solution proffered by Chief
Hardin was to adopt the proposal in the application that a road be constructed connecting
Critchfield and West Grandview Drive. This, according to Chief Hardin, would both
“meet international fire code” and provide emergency access to Grandview Ridge. CP at
304. In urging the Commission to condition approval of the development on a secondary
access road, Chief Hardin made his intent clear, “But again, that area we’re concerned
with just accessing [Grandview Ridge], period.” CP at 306.
The Commission ultimately voted to recommend approval of the Grandview
Ridge development to the Board of County Commissioners (Board), conditioned on the
Developers’ construction of the secondary fire access road as proposed in their
application.
A few weeks after the Commission’s decision to recommend the Board approve
the application, Mr. Entel sent a letter to the County arguing that the Developers should
not be required to construct the secondary fire access road. He predicted the matter
5 No. 39563-4-III Entel, et al. v. Asotin County
would “end in litigation.” CP at 170. A letter sent to the Board from counsel for the
Developers noted that the road would cost around “$500,000” to construct and, provided
the County included the requirement, budgetary restraints would prevent the Developers
from developing Grandview Ridge. CP at 23. On February 22, 2022, the Board voted to
approve Grandview Ridge. The Board’s conditions of approval mandated that the
Developers build an “emergency access road [connecting to] Critchfield Road.” CP at
200.
The Board later issued written findings and conclusions noting that IFC § 503 and
IFC Appendix D § D107 authorized the County to require construction of the secondary
fire access road. In part, the Board found:
11. The secondary road access between the development and Critchfield Road as proposed by the applicant on design drawings of record herein, including dated September 10, 2021, is appropriate and should be required for adequate public safety and for adequate safety for first responders. The proposed development site is on a ridge/promontory with steep slopes and limited existing access. The area is prone to high fire risk due to typical prevailing winds (particularly in the hot, dry, summer months), upslope fire effect, and fast burning fuels from nearby open lands. Currently the sole road qualifying as a suitable fire apparatus access road is Grandview Drive, which could be blocked or impaired by vehicle congestion in the event of a fire. 12. The public health, safety, and welfare, as well as compliance with the terms of the IFC and the Asotin County Code, require the development of secondary access between the development and Critchfield Road. This road connection is a minimum requirement for assuring that appropriate provisions are made for the public health, safety, and welfare.
6 No. 39563-4-III Entel, et al. v. Asotin County
CP at 199.
LAND USE PETITION ACT (LUPA), CHAPTER 36.70C RCW, APPEAL
The Developers timely filed an amended LUPA petition in the superior court. In
their petition, the Developers argued that the secondary fire access road requirement was
an unlawful indirect tax in violation of RCW 82.02.020, an unconstitutional taking, and
violative of their substantive due process rights. The superior court agreed that the
secondary fire access road requirement was an unlawful indirect tax in violation of
RCW 82.02.020. The court also concluded that the County erroneously interpreted
IFC Appendix D § D107, as allowing it to require the Developers build the secondary fire
access road.
The County appeals. ANALYSIS
In reviewing a land use decision, this court stands in the same position as the
superior court and limits its review to the record created before the hearing examiner.
Phoenix Dev., Inc. v. City of Woodinville, 171 Wn.2d 820, 828, 256 P.3d 1150 (2011);
Pinecrest Homeowners Ass’n v. Glen A. Cloninger & Assoc., 151 Wn.2d 279, 288, 87
P.3d 1176 (2004); RCW 36.70C.130.
“LUPA provides the exclusive means for judicial review of a land use decision
(with the exception of those decisions separately subject to review by bodies such as the
growth management hearings boards).” Phoenix Dev., 171 Wn.2d at 828 (citing Woods
7 No. 39563-4-III Entel, et al. v. Asotin County
v. Kittitas County, 162 Wn.2d 597, 610, 174 P.3d 25 (2007)). This court may reverse the
hearing examiner if the Developers establish at least one of the six standards set forth in
RCW 36.70C.130(1):
(1) The superior court, acting without a jury, shall review the record and such supplemental evidence as is permitted under RCW 36.70C.120. The court may grant relief only if the party seeking relief has carried the burden of establishing that one of the standards set forth in (a) through (f) of this subsection has been met. The standards are: (a) The body or officer that made the land use decision engaged in unlawful procedure or failed to follow a prescribed process, unless the error was harmless; (b) The land use decision is an erroneous interpretation of the law, after allowing for such deference as is due the construction of a law by a local jurisdiction with expertise; (c) The land use decision is not supported by evidence that is substantial when viewed in light of the whole record before the court; (d) The land use decision is a clearly erroneous application of the law to the facts; (e) The land use decision is outside the authority or jurisdiction of the body or officer making the decision; or (f) The land use decision violates the constitutional rights of the party seeking relief.
RCW 36.70C.130(1)(b) does not require the court to give complete deference, but
rather, “‘such deference as is due.’” Ellensburg Cement Prods., Inc. v. Kittitas County,
179 Wn.2d 737, 753, 317 P.3d 1037 (2014)). Whether the hearing examiner interpreted
the law erroneously is a question of law this court reviews de novo. Lord v. Pierce
County, 166 Wn. App. 812, 818, 271 P.3d 944 (2012).
When reviewing a challenge to the sufficiency of the evidence under
RCW 36.70C.130(1)(c), “we view facts and inferences in a light most favorable to the
8 No. 39563-4-III Entel, et al. v. Asotin County
party that prevailed in the highest forum exercising fact-finding authority.” Phoenix
Dev., 171 Wn.2d at 828-29. “Under the substantial evidence standard, there must be a
sufficient quantum of evidence in the record to persuade a reasonable person that the
declared premise is true.” Id. at 829 (citing Wenatchee Sportsmen Ass’n v. Chelan
County, 141 Wn.2d 169, 176, 4 P.3d 123 (2000)).
A finding is clearly erroneous for purposes of RCW 36.70C.130(1)(d) when,
although there is evidence to support it, the reviewing court is left with the “definite and
firm conviction that a mistake has been committed.” Phoenix Dev., 171 Wn.2d at 829.
Whether a decision is outside the jurisdiction of the body or officer making the
decision under RCW 36.70C.130(1)(e), and whether a land use decision violates a party’s
constitutional rights under RCW 36.70C.130(1)(f), are questions of law that this court
reviews de novo. Id. at 828.
WHETHER RCW 82.02.020 IS IMPLICATED AND, IF SO, WHETHER THE SECONDARY FIRE ACCESS ROAD REQUIREMENT VIOLATES IT
The Developers contend the Board’s land use decision was an erroneous
interpretation of the law under RCW 36.70C.130(1)(b) because the secondary fire access
road is an indirect tax and therefore violates RCW 82.02.020. They also argue that the
decision was outside the authority of the County under RCW 36.70C.130(1)(e) because
RCW 82.02.020 prohibits counties from imposing indirect taxes on development of land.
The County counters that RCW 82.02.020 is inapplicable because the secondary fire
9 No. 39563-4-III Entel, et al. v. Asotin County
access road is not an indirect tax nor a dedication of land. We agree with the County in
part. Conditioning approval of the Development on the construction of a secondary fire
access road does not constitute a tax under RCW 82.02.020. Because it is not a tax, the
dedication of land exception under RCW 82.02.020 is not implicated.
“RCW 82.02.020 generally provides, with some exceptions, that the state
preempts the field of imposing certain taxes.” Isla Verde Int’l Holdings, Inc. v. City of
Camas, 146 Wn.2d 740, 753, 49 P.3d 867 (2002), abrogated on other grounds by Yim v.
City of Seattle, 194 Wn.2d 682, 451 P.3d 694 (2019). In relevant part, RCW 82.02.020
states, “Except as provided in . . . RCW 82.02.050 through 82.02.090, no county, city,
town, or other municipal corporation shall impose any tax, fee, or charge, either direct or
indirect, on . . . the development, subdivision, classification, or reclassification of land.”
As exceptions to this general prohibition, RCW 82.02.020 “does not preclude dedications
of land or easements within the proposed development or plat which the county, city,
town, or other municipal corporation can demonstrate are reasonably necessary as a
direct result of the proposed development or plat to which the dedication of land or
easement is to apply.”
The statute “requires strict compliance with its terms.” Isla Verde, 146 Wn.2d at
755. A tax, fee, or charge, whether direct or indirect, “imposed on development is invalid
unless it falls within one of the exceptions specified in the statute.” Id. “The burden to
prove that a condition is reasonably necessary as a direct result of the proposed
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development is on the governmental entity imposing the requirement,” here, the County.
Citizens All. for Prop. Rights v. Sims, 145 Wn. App. 649, 657, 187 P.3d 786 (2008).
The threshold question is whether the requirement that the Developers construct a
secondary fire access road is a “tax, fee, or charge,” which is expressly prohibited by
RCW 82.02.020. If the requirement is a “tax, fee, or charge” under RCW 82.02.020, the
second question is whether the requirement falls within one of the exceptions to the
statute.
In asserting that the secondary fire access road requirement constitutes an indirect
tax, the Developers repeatedly argue that the County is forcing them to remedy an issue
that predated their proposed development. The Developers cite Southwick, Inc. v. City of
Lacey, 58 Wn. App. 886, 795 P.2d 712 (1990), for the proposition that “[s]hifting of a
general social cost onto a developer is a tax.” Br. of Resp’ts at 34.
In Southwick, we analyzed whether conditions imposed on Southwick’s expansion
of its cemetery and funeral home complex constituted a tax in violation of RCW
82.02.020. 58 Wn. App. at 889-90. There, the conditions included street improvements,
installation of fire sprinklers and a fire alarm system, and submission of plans to the
public works department. In Southwick, we concluded that the required conditions were
not taxes because they were “directly tied to the property in question and [were] not
aimed at general social ills.” Id. at 890. Accordingly, “‘[i]f the fees are merely tools in
11 No. 39563-4-III Entel, et al. v. Asotin County
the regulation of land subdivision, they are not taxes.’” Id. (quoting Hillis Homes v.
Snohomish County, 97 Wn.2d 804, 809, 650 P.2d 193 (1982)).
Similarly, here, the primary reason the County requires construction of the
secondary fire access road is for fire apparatus and personnel to enter the area in the event
of a fire. The only stated basis in the record for the secondary fire access road is for the
protection of the residents and structures of Grandview Ridge. If the property remains
undeveloped and uninhabited, there is no need for a secondary means of ingress and
egress as the area remains lacking of lives and structures in need of protection. Due to
the Developers’ desire to develop the land, coupled with the high fire danger in the area,
access for emergency vehicles into Grandview Ridge is imperative.
Chief Hardin voiced to the Commission that the need for a secondary fire access
road is directly tied to the development of Grandview Ridge. Before the Commission,
Chief Hardin commented that if a fire or traffic accident were to block West Grandview
Drive, emergency services would need a way to move people in and out of Grandview
Ridge. He also opined that the hilly terrain of Grandview Ridge makes it difficult to get
to the area quickly in case of a fire or other emergency.
Due to the steep terrain and limited ingress and egress to Grandview Ridge, a
secondary fire access road is reasonably necessary to mitigate a direct impact that is a
consequence of the proposed development. The secondary fire access road condition is
directly tied to the property and, although a secondary benefit may be present, it is not
12 No. 39563-4-III Entel, et al. v. Asotin County
aimed at resolving general social ills. Because the condition is merely a tool in the
regulation of the subdivision’s development, it is not a tax under RCW 82.02.020. The
Board’s decision does not amount to an erroneous interpretation of the law.
Following approval of the development, conditioned on construction of the
secondary fire access road, the Developers argued to the Board that construction of the
road would cost around “$500,000.” CP at 23. This, according to the Developers, would
constitute a budgetary restraint, preventing them from developing Grandview Ridge.
However, “[w]hile fulfillment of the conditions will require the expenditure of money,
cost alone does not make the requirements a tax.” Southwick, 58 Wn. App. at 890.
In addition to arguing that requiring the construction of a secondary fire access
road is not a tax, the County argues at length that the requirement is also not a dedication
of land. Because the Developers are not asserting the dedication of land exception to
RCW 82.02.020, and we concluded the requirement is not a tax, the County’s logorrhea
on the issue is inconsequential.
WHETHER THE REQUIREMENT THAT A SECONDARY FIRE ACCESS ROAD BE BUILT CONSTITUTES A TAKING
The Developers seek relief under RCW 36.70C.130(1)(f), arguing the requirement
that they build a secondary fire access road is an unconstitutional taking under the Fifth
Amendment to the United States Constitution. The Developers simply state that “[t]here
is no proportionality between what is being asked of the [Developers] and the impact
13 No. 39563-4-III Entel, et al. v. Asotin County
Grandview Ridge will have, therefore the secondary access road requirement is a taking.”
Br. of Resp’ts at 21. We disagree.
The takings clause of the Fifth Amendment states, “[N]or shall private property be
taken for public use, without just compensation.” Similarly, article I, section 16 of the
Washington Constitution provides, “No private property shall be taken or damaged for
public or private use without just compensation having been first made.”
When a land use decision is challenged under both takings and substantive due
process, we first examine the takings issue. Guimont v. Clarke, 121 Wn.2d 586, 594, 854
P.2d 1 (1993), abrogated on other grounds by Yim, 194 Wn.2d 682. If the land use
decision survives the takings analysis, then the court determines whether it violates
substantive due process. Id. “[A]n exercise of the police power protective of the public
health, safety, or welfare cannot be a taking requiring compensation.” Orion Corp. v.
State, 109 Wn.2d 621, 646, 747 P.2d 1062 (1987), abrogated on other grounds by Yim,
194 Wn.2d 682.
The Developers rely on Nollan v. California Coastal Comm’n, 483 U.S. 825, 107
S. Ct. 3141, 97 L. Ed. 2d 677 (1987), and Dolan v. City of Tigard, 512 U.S. 374, 114 S.
Ct. 2309, 129 L. Ed. 2d 304 (1994). Where government issues a land use permit on
condition that the applicant dedicate land to public use, the government must show an
“essential nexus” between a “legitimate state interest,” and the condition imposed.
Nollan, 483 U.S. at 837. Additionally, in order to satisfy the Fifth Amendment, “the
14 No. 39563-4-III Entel, et al. v. Asotin County
government must establish that its proposed condition is roughly proportional to the
impact the proposed development will have on the public problem.” Benchmark Land
Co. v. City of Battle Ground, 94 Wn. App. 537, 545, 972 P.2d 944 (1999) (citing Dolan,
512 U.S. at 391). This requires “some sort of individualized determination that the
required dedication is related both in nature and extent to the proposed development’s
impact.” Dolan, 512 U.S. at 375.
In Dolan, the owner of a building sought to remove the building and replace it
with a larger one and expand the parking lot. The city of Tigard, Oregon, conditioned
approval on the owner of the building dedicating a portion of the property lying within
the 100-year floodplain for improvement of a storm drainage system and on her
dedicating a portion of land adjacent to the floodplain as a pedestrian pathway. The
United States Supreme Court concluded that these requirements constituted a taking.
In Nollan, the Nollans acquired a California oceanfront lot and sought to construct
a home on it. When they sought the necessary permitting, the California Coastal
Commission required that they dedicate an easement for public use across the beach
portion of their lot. The United States Supreme Court found there was no “essential
nexus” between the easement and any public problem created or exacerbated by the
Nollans’ new house. 483 U.S. at 837. Therefore, it concluded that the Commission
could not exact the easement without compensation.
15 No. 39563-4-III Entel, et al. v. Asotin County
Here, the Developers attempt to frame the requirement that they construct a
private road to assist fire personnel in reaching Grandview Ridge in the event of an
emergency as a governmental taking. Unlike the facts in both Nollan and Dolan, here it
is undisputed that the County is not requiring the Developers to convert any of their
property to the government for public or private use. Instead, approval of the
development has been conditioned upon the Developers constructing a private secondary
fire access road that would remain under the ownership and control of the owner of lot 6.
The secondary fire access road requirement is not an unconstitutional taking.
In addressing the Developers’ Nollan/Dolan proportionality argument, we find
City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 702-03, 119 S. Ct.
1624, 143 L. Ed. 2d 882 (1999), persuasive. In City of Monterey, the Supreme Court held
the Dolan proportionality test “was not designed to address, and is not readily applicable
to, the much different questions arising where . . . the landowner’s challenge is based not
on excessive exactions but on denial of development.” Id. at 703. Stated otherwise, a
Nollan/Dolan analysis is unnecessary when the facts fail to establish the presence of a
dedication of land, an exaction in lieu of a dedication, a taking, or an easement.
Indeed, many conditions imposed on new developments come at a substantial cost
to developers, but that does not mean the conditions ascend to a governmental taking
(e.g., water/sewer improvements, mandatory setbacks, road improvements). Because the
County has undisputedly not conditioned approval of the Developers’ application on the
16 No. 39563-4-III Entel, et al. v. Asotin County
County taking or damaging any of the Developers’ property for public or private use,
Nollan and Dolan are both unpersuasive and inapplicable in this context.
To the extent the Developers argue the cost of constructing a secondary fire access
road is disproportionately high compared to their budget and the size of the development,
we find such an assertion unpersuasive. See Southwick, 58 Wn. App. at 890. The
Developers have not provided any authority that extends the Nollan/Dolan
proportionality test to a developer’s budget compared to the cost of complying with
regulatory conditions. Moreover, such a holding would endow developers with the
option of avoiding regulatory safety measures by simply minifying their anticipated
development costs.
The Developers next argue the secondary fire access road requirement deprives
them of all economically viable use of their property. We disagree.
The Developers can only show an unconstitutional taking has occurred by
“establishing that the challenged regulation destroys any fundamental attribute of
ownership, including the right to possess, to exclude others, or to make economically
viable use of property.” Ventures Nw. Ltd. P’ship v. State, 81 Wn. App. 353, 363, 914
P.2d 1180 (1996). “The mere denial of a permit for one particular use does not establish
the absence of any economically viable use; a regulation that may impact the property’s
highest and best use is not a taking.” Id. at 366 (citing Village of Euclid v. Ambler Realty
Co., 272 U.S. 365, 384, 47 S. Ct. 114, 71 L. Ed. 303 (1926)).
17 No. 39563-4-III Entel, et al. v. Asotin County
The Developers argue that the secondary fire access road requirement deprives
them of all economically viable use of their property. They argue the property will
remain without value if they cannot develop it because it will continue to be an open
field. The Developers’ claim fails for a number of reasons.
First, the County has not deprived the Developers of the opportunity to develop
the property as a subdivision. The Developers could modify their budget to prioritize the
road, seek other sources of revenue allowing for construction of the road, or sell the land
to someone who possesses sufficient resources to develop the property. The Developers’
budgetary constraints do not convert the condition into a taking. Secondly, the
Developers currently enjoy the same use of the property as they did before the County’s
secondary fire access road requirement. The County’s condition does not affect the
Developers’ property unless they decide to develop the land into a subdivision. Thirdly,
there is nothing in the record demonstrating that the Developers have sought any other
use of the property. Thus, the record lacks any showing that all economically viable use
of the property has been extinguished due to the secondary fire access road condition.
WHETHER THE REQUIREMENT THAT A SECONDARY FIRE ACCESS ROAD BE BUILT VIOLATES THE DEVELOPERS’ DUE PROCESS RIGHTS
Because the land use decision survives the takings analysis, we proceed to the
substantive due process analysis. Guimont, 121 Wn.2d at 594. The Developers contend
the requirement that they construct a secondary fire access road as a condition of
18 No. 39563-4-III Entel, et al. v. Asotin County
approval violates their substantive due process rights. U.S. CONST. amend. V, XIV;
RCW 36.70C.130(1)(f). We disagree.
Even if a land use decision is not a taking, the decision must satisfy constitutional
due process reasonableness analysis. Kahuna Land Co. v. Spokane County, 94 Wn. App.
836, 842, 974 P.2d 1249 (1999); U.S. CONST. amend. V, XIV. In making this
determination, we engage in a three-prong analysis: “(1) Is the decision aimed at
achieving a legitimate public purpose; (2) does it use means that are reasonably necessary
to achieve that purpose; and (3) is it unduly oppressive to the landowner?” Id. at 842.
The “unduly oppressive” test is not interpreted as requiring heightened scrutiny.
Yim, 194 Wn.2d at 694 (internal quotation marks omitted). Land use regulations are not
subject to heightened scrutiny; instead, rational basis review applies. Id. at 698. Land
use regulations violate substantive due process only if they fail to serve any legitimate
governmental objective, making it arbitrary or irrational. Id. “‘[T]hat a statute is unduly
oppressive is not a ground to overturn it under the due process clause.’” Id. at 696
(quoting Salstrom’s Vehicles, Inc. v. Dep’t of Motor Vehicles, 87 Wn.2d 686, 693, 555
P.2d 1361 (1976)).
The County argues that the Developers’ substantive due process rights are not
violated because the secondary fire access road serves the legitimate governmental
purpose of ensuring adequate ingress and egress to Grandview Ridge in the event of a
fire. The County further contends the road is reasonably necessary to achieve that
19 No. 39563-4-III Entel, et al. v. Asotin County
purpose. The Developers concede that “fire risk is a serious public problem.” Br. of
Resp’ts at 31. The Developers primarily argue that the secondary fire access road
requirement is unduly oppressive and that “[u]nduly oppressive requirements constitute
violations of substantive due process.” Br. of Resp’ts at 32. The Developers are
incorrect. Even assuming that the secondary fire access road requirement is unduly
oppressive, this does not mean that the Developers’ due process rights are violated. Yim,
194 Wn.2d at 696.
Here, the secondary fire access road requirement serves the legitimate
governmental purpose of protecting the health and safety of the residents of Grandview
Ridge by allowing adequate ingress and egress in the event of an emergency. The
Developers do not dispute this. Instead, the Developers argue that there are less
oppressive means of protecting Grandview Ridge, like requiring built-in sprinkler
systems in the homes built in Grandview Ridge. The Developers’ argument is
unpersuasive. First, the record lacks any facts suggesting sprinkler systems on a home-
to-home basis are a reasonable alternative for fire personnel and fire apparatus.
Secondly, the record is replete with facts showing that Grandview Ridge is at risk of
being consumed by fast moving, wind-driven, uphill wildfires.
The “unduly oppressive” prong of the three-part analysis predominates the
Developers’ argument. Kahuna Land, 94 Wn. App. at 842. But, even if the secondary
20 No. 39563-4-III Entel, et al. v. Asotin County
fire access road requirement is unduly oppressive, that does not necessarily constitute an
encroachment into the Developers’ substantive due process rights. The Developers do
not and cannot show that the secondary fire access road requirement does not pass
rational basis review. Thus, the Developers’ substantive due process rights are not
violated.
WHETHER THE IFC AUTHORIZES THE REQUIREMENT OF A SECONDARY FIRE ACCESS ROAD
The County argues that IFC § 503 and Appendix D § D107 authorize it to require
the Developers construct a secondary fire access road as a condition of approval of
Grandview Ridge. The Developers contend the County erroneously interpreted IFC
Appendix D § D107 and that the County improperly applied IFC § 503 in a way that
violates Washington law (RCW 82.02.020) and the federal constitution (U.S. CONST.
amend. V). RCW 36.70C.130(1)(b), (f). Because we have already determined that
RCW 82.02.020 is not implicated and that the secondary fire access road requirement is
not a taking nor violative of the Developers’ substantive due process rights, the
Developers’ argument regarding IFC § 503 necessarily fails. Thus, because IFC § 503
independently authorizes the secondary fire access road requirement, we need not reach
the closer question of whether IFC Appendix D § D107 authorizes the condition.
The IFC has been adopted by reference in each of Washington’s 39 counties.
RCW 19.27.031(3). IFC § 503 is titled “FIRE APPARATUS ACCESS ROADS.” Int’l
21 No. 39563-4-III Entel, et al. v. Asotin County
Code Council, International Fire Code (2021), https://codes.iccsafe.org/content
/IFC2021P2. IFC § 503.1 states: “Fire apparatus access roads shall be provided and
maintained in accordance with Sections 503.1.1 through 503.1.3.” IFC § 503.1.2, titled
“Additional access,” provides: “The fire code official is authorized to require more than
one fire apparatus access road based on the potential for impairment of a single road by
vehicle congestion, condition of terrain, climatic conditions or other factors that could
limit access.” (Emphasis omitted.)
Chief Hardin reported to the Commission that “fire danger is obviously an issue”
in the area of Grandview Ridge. CP at 303. He also testified that:
[W]e had a fire down on Critchfield . . . a couple, three years ago, and, you know, the fire’s obviously racing uphill. We have to go all the way to 22nd, back down 6th, back around, you know, to get around, you know, to get around on top to protect structures that way. And it’s a challenge in a wind-driven fire. . . . .[W]e need to be able to get there, you know, quickly and not have to go four or five miles just to get⎯to get to it when there are roads that could be connected together. .... I mean, if it’s a⎯if there were a traffic accident or we had to block off for a fire on Grandview and we needed to move people in and out, you know, how would we do that?
CP at 303-07.
Before the Commission, the Developers failed to rebut any of Chief Hardin’s
safety concerns surrounding the prospective residents and structures of Grandview Ridge.
Based on Chief Hardin’s presentation, the Board found:
22 No. 39563-4-III Entel, et al. v. Asotin County
The proposed development site is on a ridge/promontory with steep slopes and limited existing access. The area is prone to high fire risk due to typical prevailing winds (particularly in the hot, dry, summer months), upslope fire effect, and fast burning fuels from nearby open lands. Currently the sole road qualifying as a suitable fire apparatus access road is Grandview Drive, which could be blocked or impaired by vehicle congestion in the event of a fire.
Chief Hardin’s comments demonstrated that the location of Grandview Ridge, the
danger of wind-driven, up-slope fires, as well as the potential for vehicle congestion on
West Grandview Drive made secondary access to the proposed development necessary.
IFC § 503.1.2 explicitly authorizes that an additional fire access road be required based
on “potential for impairment of a single road.” Thus, the fire code authorized the County
to condition Grandview Ridge’s approval on the construction of a secondary fire access
road.
The Developers argue that the County applied IFC § 503 in a way that violates
Washington law and the Constitution. Because we already determined that the secondary
fire access road requirement does not implicate RCW 82.02.020, nor does it violate the
Constitution, the Developers’ argument fails.
Whether IFC Appendix D § D107 authorizes the secondary fire access road is a
closer question. However, because IFC § 503 independently authorized the County to
condition approval on construction of a secondary fire access road, we need not analyze
whether IFC Appendix D § D107 also authorized the County to require the road.
23 No. 39563-4-III Entel, et al. v. Asotin County
WHETHER REQUIRING THE FIRE ACCESS ROAD IS A LEGITIMATE EXERCISE OF THE COUNTY’S POLICE POWER
The Developers argue that requiring the construction of a secondary fire access
road is not a legitimate exercise of the County’s police power. This contention is
premised on the Developers’ claims that the development does not necessitate a
secondary road, that requiring the road amounts to an unconstitutional taking, and the
condition is violative of RCW 82.02.020. Because we already concluded that the road
does not amount to an unconstitutional taking nor is it in violation of RCW 82.02.020, we
only address the Developers’ first contention⎯whether the County’s police power allows
it to decide whether the development necessitates an additional road and condition the
approval of the application on the construction of a road.
RCW 58.17.110(2) states in relevant part, “A proposed subdivision and dedication
shall not be approved unless the city, town, or county legislative body makes written
findings that: (a) Appropriate provisions are made for the public health, safety, and
general welfare . . . .” The County argues that the secondary fire access road requirement
was an appropriate measure to ensure the health and safety of the public in case of a fire
near the proposed development. We agree.
“It is well settled that the enactment of reasonable ordinances regarding the
protection of the lives and safety of persons, as well as the protection of property against
fire, is within the police power of a municipality.” Hass v. City of Kirkland, 78 Wn.2d
24 No. 39563-4-III Entel, et al. v. Asotin County
929, 932, 481 P.2d 9 (1971), abrogated on other grounds by Yim, 194 Wn.2d 682. “[A]
police power action must be reasonably necessary to serve a legitimate state interest” in
order to survive a substantive due process challenge. Orion, 109 Wn.2d at 646-47.
Further, “an exercise of the police power protective of the public health, safety, or
welfare cannot be a taking requiring compensation.” Id. at 646.
In requiring the construction of a secondary fire access road, the County’s intent
was to provide for the health, safety, and welfare of the residents of Grandview Ridge
through appropriate fire protection. This is a reasonable exercise of the County’s police
power. Further, IFC § 503 explicitly allows the fire chief to determine when another fire
access road is necessary. Chief Hardin made clear that the area is prone to fires and
blockage of West Grandview Drive would make reaching Grandview Ridge difficult.
Based on the fire code and Chief Hardin’s comments, the County acted reasonably, and
within its police powers, in conditioning approval of the development on the construction
of a secondary fire access road.
ATTORNEY FEES
The Developers request their attorney fees on appeal under RCW 4.84.370. The
statute reads, in relevant part:
(1) Notwithstanding any other provisions of this chapter, reasonable attorneys’ fees and costs shall be awarded to the prevailing party or substantially prevailing party on appeal before the court of appeals or the supreme court of a decision by a county, city, or town to issue, condition, or deny a development permit involving a site-specific rezone, zoning, plat,
25 No. 39563-4-III Entel, et al. v. Asotin County
conditional use, variance, shoreline permit, building permit, site plan, or similar land use approval or decision. The court shall award and determine the amount of reasonable attorneys’ fees and costs under this section if: (a) The prevailing party on appeal was the prevailing or substantially prevailing party before the county, city, or town, or in a decision involving a substantial development permit under chapter 90.58 RCW, the prevailing party on appeal was the prevailing party or the substantially prevailing party before the shoreline[s] hearings board; and (b) The prevailing party on appeal was the prevailing party or substantially prevailing party in all prior judicial proceedings.
(Emphasis added.) (Alteration in original.) Pursuant to the statute, a party to a land use
decision is only entitled to attorney fees on appeal if the prevailing party at the
administrative level is also the prevailing party in all prior judicial decisions. The
Developers have not prevailed in this appeal. They are therefore not entitled to an award
of attorney fees. CONCLUSION
We reverse the trial court and reinstate the Board’s approval of the development
conditioned upon construction of a secondary fire access road.
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.
Cooney, J. WE CONCUR:
Lawrence-Berrey, C.J. Staab, J.