Benchmark Land Co. v. City of Battle Ground

• Decision Date: 12 March 1999
• Docket Number: No. 22254-0-II
• Citation: Benchmark Land Co. v. City of Battle Ground, 972 P.2d 944, 94 Wn.App. 537 (Wash. App. 1999)
• Court: Washington Court of Appeals
• Parties: BENCHMARK LAND COMPANY, an Oregon Limited Liability Company, Respondent/Cross Appellant, v. CITY OF BATTLE GROUND, a municipal corporation of the State of Washington, Appellant/Cross Respondent.

Page 944

94 Wn.App. 537

972 P.2d 944

BENCHMARK LAND COMPANY, an Oregon Limited Liability Company Respondent/Cross Appellant, v. CITY OF BATTLE GROUND, a municipal corporation of the State of Washington, Appellant/Cross Respondent.

No. 22254-0-II.

Court of Appeals of Washington Division 2.

March 12, 1999.

Brent David Boger, Pacific Legal Foundation, Bellevue, for Amicus Curiae Pacific Legal Foundation.

Stephen Harold G. Overstreet, Gen. Counsel-Bldg. Indus. Ass'n of Wash., Olympia, John Maurice Groen, Groen & Stephens, Bellevue, for Amicus Curiae Building Industry of Washington.

William Dale Kamerrer, Law, Lyman, Daniel, Kamerrer, Olympia, Brian H. Wolfe, Vancouver, for Appellant.

Leanne Marie Bremer, Hornstein, Bremer, Ps, Vancouver, Ronald Alan Franz, Law Offices of Ronald A., Seattle, for Respondent.

ARMSTRONG, J.

Benchmark Land Company sought to develop a 20-acre subdivision in the City of Battle Ground. As a condition of plat approval, the City required Benchmark to make half-street improvements to a street adjoining the subdivision on one side, even though the subdivision did not directly access the street. Benchmark challenged the condition with a land use petition under RCW 36.70C (LUPA) and also sought damages from the City pursuant to 42 U.S.C. § 1983 (1979) and RCW 64.40. The trial court ruled that the City had failed to show either an essential nexus or a rough proportionality between the impact of the subdivision and the need for half-street improvements. The damage claims were not resolved, but the court entered judgment for Benchmark on the LUPA claim. On appeal, the City contends that (1) Benchmark agreed to the half-street improvements, and (2) because a city ordinance provided the formula for half-street improvements, the City was not required to show by a site specific study the essential nexus and rough proportionality between the development and the half-street improvements. We affirm.

FACTS

On November 14, 1994, Benchmark filed a preliminary plat application to develop a subdivision called Melrose Park. Benchmark's initial site plan included half-street improvements to North Parkway Avenue, which bordered the proposed subdivision to the east. Benchmark had been "informed" by the City that city ordinances require half-street improvements to be made to access streets fronting on a subdivision parcel. Battle Ground City Code (BGCC) 12.16.180, 12.16.240.

The preliminary plat's initial design included access to North Parkway from 14th Street, but the city engineer suggested, four days before the planning commission meeting, that the 14th Street access be eliminated. Benchmark revised its preliminary plat to eliminate the access to 14 th Street, but did not eliminate the proposed half-street improvements.

The preliminary plat received approval from the planning commission in April 1995, subject to 10 conditions. While the half-street improvements were apparently discussed at the meeting, none of the conditions concerned the half-street improvements. ¹ The city council approved the preliminary plat in May 1995, but did not reduce its findings to writing, as required by both the BGCC 16.103A.10 and RCW 58.17.110.

In August 1995, Benchmark told the City that it would not make half-street improvements to North Parkway. Benchmark contended that the half-street improvements were a "left over" from the original design in which the subdivision had 14th Street access to North Parkway.

In January 1996, the city council adopted findings of fact and conclusions of law in which it "accepted" the developer's "proposed street pattern ... including half-width improvements."

Benchmark then filed a land use petition under RCW 36.70C. The superior court ruled that "[t]he City could not accept the petitioner's proposal to make half street improvements to North Parkway after that proposal had been withdrawn prior to adoption of written findings and conclusions by the City." The trial court remanded for the City to consider whether traffic impacts caused by the development "support a requirement of half street improvements to North Parkway Avenue."

On remand, both the City and Benchmark performed traffic studies. Neither traffic study predicted any substantial increase in traffic along North Parkway in the area of the disputed half-street improvements. And neither study concluded that the development would cause North Parkway to become more "unsafe," although the City's study noted that "Parkway Avenue does not meet current safety and efficiency standards for width and lane configuration required by the Battle Ground Transportation Plan." This study recommended the improvements; Benchmark's study did not. Benchmark's expert also found that the development would not impact safety on North Parkway. The city council adopted findings and conclusions which again required the half-street improvements. ²

Benchmark appealed to the superior court, which held that the City had failed to produce substantial evidence of an "essential nexus" or of "rough proportionality" between possible impacts of the subdivision and the need for half-street improvements.

ANALYSIS

A. "Contract" Claims

Initially, the City claims it reached an oral agreement with Benchmark to make the half-street improvements in exchange for the City's approval of Benchmark's preliminary plat. The City acknowledges that no written findings, conclusions, or approval were made until after Benchmark told the City that it would no longer make the improvements. The City also states that it could have modified the "judicial decision" to approve the preliminary plat at anytime before entry of "a document reflecting that decision."

The City cites a Pennsylvania case, Board of Supervisors v. West Chestnut Realty Corp., 110 Pa. Cmwlth. 481, 532 A.2d 942 (1987), for the proposition that "[a] developer may lawfully be required to comply with the provisions of its approved development proposal." In West Chestnut, a town ordinance specifically permitted the town to deny final approval if there were "variations" between the tentative development plan and the application for final approval. West Chestnut Realty, 532 A.2d at 946. Here, Battle Ground has no comparable ordinance. Thus, West Chestnut is of no help to the City.

Benchmark responds that because Washington statutes and the city code require planning commission and city council decisions to be in writing, it never had preliminary approval until January 4, 1996, when the written findings and conclusions were entered. RCW 58.17.100; BGCC 16.103A.09; RCW 58.17.110; BGCC 16.103A.10; RCW 58.17.195.

We agree with Benchmark. The statutes cited require entry of written findings and conclusions. We hold that "preliminary approval" never existed until such written findings and conclusions were entered. If, as the City asserts, it could have modified its findings at any time before entry, then it could hardly be said that Benchmark had even a preliminary approval. And the City cannot claim a contract when it admits that it was not required to perform in return. Lande v. South Kitsap School Dist. No. 402, 2 Wash.App. 468, 477, 469 P.2d 982 (1970) (citing Larkins v. St. Paul & Tacoma Lumber Co., 35 Wash.2d 711, 214 P.2d 700 (1950)) ("It is elementary contract law that unless both parties are bound by mutual promises or considerations, neither is bound.")

Further support is found in the well-settled rule that a judge's oral decision is no more than a verbal expression of his informal opinion at that time. It is necessarily subject to further study and consideration, and may be altered, modified, or completely abandoned. "It has no final or binding effect, unless formally incorporated into the findings, conclusions, and judgment." In re Marriage of Harshman, 18 Wash.App. 116, 120, 567 P.2d 667 (1977) (citing Ferree v. Doric Co., 62 Wash.2d 561, 566-67, 383 P.2d 900 (1963)). It is unquestioned that the city council was acting in a quasi-judicial role when it ruled on approval of the plat. Snider v. Board of County Comm'rs, 85 Wash.App. 371, 375, 932 P.2d 704 (1997) (citing Miller v. City of Port Angeles, 38 Wash.App. 904, 908, 691 P.2d 229 (1984) ( "A decision to grant, deny or impose conditions upon a proposed plat is administrative or quasi judicial in nature.")). ³

B. Constitutional Issue--Fifth Amendment and Taking of Private Property

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). At issue here are whether the development impacts a public problem and, if so, whether the proposed solution, the half-street improvement, is roughly proportional to the impact.

1. City Ordinances

The City argues that it was not required to do a Dolan site-specific study because it "has ordinances which require developers to provide half-street improvements to arterial and access streets...