AHO Constr. I, Inc. v. City of Moxee

• Citation: 430 P.3d 1131
• Decision Date: 06 December 2018
• Docket Number: No. 35558-6-III,35558-6-III
• Court: Washington Court of Appeals
• Parties: AHO CONSTRUCTION I, INC., Appellant, v. CITY OF MOXEE, a Political Subdivision of the State of Washington, Respondent.

430 P.3d 1131

AHO CONSTRUCTION I, INC., Appellant,

v.CITY OF MOXEE, a Political Subdivision of the State of Washington, Respondent.

No. 35558-6-III

Court of Appeals of Washington, Division 3.

FILED DECEMBER 6, 2018

Steve Cameron Morasch, Bradley W. Andersen, Landerholm, PS, 805 Broadway St. Ste. 1000, Po Box 1086, Vancouver, WA, 98660-3343, for Appellant.

Kenneth W. Harper, Menke Jackson Beyer, LLP, 807 N 39th Ave., Yakima, WA, 98902-6389, for Respondent.

PUBLISHED OPINION

Fearing, J.

In order for an issue to be properly raised before an administrative agency, there must be more than simply a hint or a slight reference to the issue in the record. King County v. Washington State Boundary Review Board, 122 Wash.2d 648, 670, 860 P.2d 1024 (1993) (emphasis added).

¶ 1 Aho Construction I, Inc. (Aho) appeals from the trial court’s dismissal of its Land Use Petition Act, chapter 36.70C RCW (LUPA), action on the ground of failure to exhaust remedies before the Moxee City Council. We must decide how loud, listing, learned, legally lucid, and longwinded a party’s presentation of an issue or legal argument must be before an administrative agency in order to exhaust remedies. We hold that Aho sufficiently exhausted its remedies. We reverse the dismissal of Aho’s LUPA action.

FACTS

¶ 2 Aho Construction submitted applications to the city of Moxee to rezone and subdivide a twenty-two-acre tract of property that Aho purchased on contract. Aho submitted a rezone application to Moxee because the development, to be named Rose’s Place, contemplated ninety-one residences inside the city, which number exceeded the density allowed by the property’s R-1 single-family zone. Aho sought rezoning to an R-2 single family zone. Aho also submitted to Moxee a preliminary plat for approval. Pursuant to State Environmental Policy Act of 1971, chapter 43.21C RCW (SEPA) requirements, Aho additionally filed an environmental checklist with the city.

¶ 3 The Rose’s Place subdivision application plat map did not extend an existing city street, Chelan Avenue, through the subdivision. The proposed plat instead depicted Chelan Avenue terminating one-half block inside the subdivision and near the westerly border of the subdivision and recommencing in an easterly direction one-half block before Chelan Avenue would exit the subdivision.

¶ 4 The city of Moxee provided public notice of Aho Construction’s applications for a rezone and subdivision approval. Numerous city officials and other government entities responded to the applications and environmental checklist. Moxee Police Chief Mike Kisner responded with concerns about the break in Chelan Avenue’s continuity. Kisner wrote to Moxee’s SEPA official:

It appears from a logical stand-point that it [Chelan Avenue] should be extended through the plat from Faucher Road [west side of the subdivision] to the proposed stub-out on the east side of the plat.

....

Chelan Avenue is an important local access connection through this side of the city. It starts at Centennial Street and connects to the west side of Faucher Road. This proposal makes the obvious connection on the east side of Faucher Road but does provide a continuous connection to the east. This discontinuance of street connection will reduce our response time to this area and therefore does not promote the public health, safety and welfare of the citizens of Moxee.

Clerk’s Papers (CP) at 126. Police Chief Kisner requested that Moxee condition any approval of the subdivision plat on the extension of Chelan Avenue through the entire subdivision.

¶ 5 Trevor Lenseigne, operations chief of East Valley Fire Department, the city of Moxee’s fire service organization, also expressed concern over Chelan Avenue’s discontinuance, and he requested the roadway be extended. Lenseigne wrote to Moxee’s SEPA official:

In the proposed plat, it would be necessary for our large vehicles to make additional turning movements or drive around entire blocks to access certain locations if Chelan Avenue is not extended easterly. This could delay our response times in an emergency situation.

We believe it would be in the public’s best interest if Chelan Avenue were extended through the plat, as it would provide us with better access to the proposed neighborhood and to future neighborhoods to the east.

CP at 129.

¶ 6 Benjamin Annen, Moxee’s consulting engineer, reviewed the Rose’s Place SEPA environmental checklist. Annen wrote to the city SEPA official:

The preliminary plat layout should be revised to extend Chelan Avenue from Faucher Road, continuous through the length of the development to the east property line, with provisions for extending in the future. Continuity within the roadway network is important as it provides consistent roadway connectivity, a reliable block system for various modes of transportation, and improved access for emergency vehicles. Consistent with previous plats and continuity, typical block lengths should range from 250 feet to 700 feet in length. Because the distance between Charron Road and Moxee Avenue is approximately 1,300 feet, it is our recommendation to extend Chelan Avenue through the development as an additional east/west roadway, greatly improving continuity.

CP at 123.

¶ 7 The city of Moxee conducted a review of the preliminary plat application under SEPA and issued a preliminary mitigated determination of nonsignificance (MDNS). The preliminary MDNS required that Aho implement various mitigation measures, including the extension of Chelan Avenue from its intersection with Faucher Road on the west side of the subdivision across the entirety of Rose’s Place to its eastern boundary. Moxee issued the preliminary MDNS for purposes of additional comments from the public, government entities, and Aho.

¶ 8 John Manix, Aho Construction’s engineer, penned a report to Mel Aho, owner of Aho, which report Aho forwarded to the city of Moxee with a request for relief from the mitigation requirement of extending Chelan Avenue. Aho’s engineer disputed the need to extend Chelan Avenue, while writing that Rose’s Place would add minimal traffic to the vicinity. Manix also iterated that emergency vehicles would wish to enter Rose’s Place subdivision from arterials, such as Moxee Avenue, other than Chelan Avenue. Manix posited that use of Chelan Avenue would increase emergency vehicles’ response time.

¶ 9 Steven Madsen, Aho Construction’s general counsel, also wrote Moxee officials and complained about the lack of justification for extending Chelan Avenue across the plat. We repeat below a portion of the lengthy argument presented by Madsen in the letter. The file given to each Moxee city council member, when the city council later reviewed Aho’s challenge to the Chelan Avenue extension requirement, included the letter:

Chelan Avenue Extension:

Washington law is very clear that mitigation requirements imposed on land development by municipal jurisdictions must be roughly proportional to the environmental Impacts created by the development:

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 v. California Coastal Comm’n, 483 U.S. 825, 837, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987). Further, to satisfy the Fifth Amendment, the government must establish that its proposed condition is roughly proportional to the Impact the proposed development will have on the public problem.

Dolan v. City of Tigard, 512 U.S. 374, 391, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994). And this requires ‘some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development.’ Dolan, 512 U.S. at 391, 114 S.Ct. 2309. We have identified four factors in these concepts: (1) a public problem; (2) a development that impacts the public problem; (3) governmental approval of the development based on a condition that tends to solve the problem; and (4) rough proportionality between the proposed solution and the development’s impact on the problem. Burton v. Clark County, 91 Wash. App. 505, 520-23, 958 P.2d 343 (1998). Benchmark Land Company v. City of Battle Ground, 94 Wash. App, 537[,] 972 P.2d 944 (1999).

In this case, the mitigation measure completely fails the "Dolan test." Primarily, there is no "public problem" which would require such an extraordinary mitigation measure. All arterial streets accessing the proposed development currently operate at a Level of Service (LOS) A. This is the highest level of service under currently accepted traffic management measurement systems. There is no evidence that the additional traffic created by the proposed development will reduce this LOS or otherwise exacerbate any existing traffic problem.

Likewise, there is no evidence that fire and police services are inadequate to service the development. Nevertheless, the City’s "SEPA Responsible Official[,]" police and fire departments have all stated support for the mitigation measure. Nowhere is there any explanation for how the requirement of the extension of Chelan Avenue through the proposed development mitigates an existing problem despite an estimated additional cost of hundreds of thousands of dollars to Aho, increased street maintenance costs to the City, and the loss of property tax revenue for the eight houses sacrificed by the street dedication.

....

The fire district letter claims that if Chelan Avenue is not extended, "[t]his could delay our response times in an emergency situation." This is a bald assertion with no facts or evidence to support the kind of "Individualized determination" of the proportionality of the mitigation measure to the impact created. The fire district goes on to state, "We believe it would be in the public’s best interest if Chelan Avenue were extended through the plat, as it would provide us with better access to the proposed neighborhoods to the east." Under

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