Benchmark Land Co. v. City of Battle Ground, 70659-0.

• Decision Date: 11 July 2002
• Docket Number: No. 70659-0.,70659-0.
• Citation: 49 P.3d 860,146 Wash.2d 685
• Parties: The BENCHMARK LAND COMPANY, an Oregon limited liability company, Respondent, v. CITY OF BATTLE GROUND, Washington, a municipal corporation of the State of Washington, Petitioner.
• Court: Washington Supreme Court

49 P.3d 860

146 Wash.2d 685

The BENCHMARK LAND COMPANY, an Oregon limited liability company, Respondent, v. CITY OF BATTLE GROUND, Washington, a municipal corporation of the State of Washington, Petitioner.

No. 70659-0.

Supreme Court of Washington, En Banc.

July 11, 2002.

William D. Kamerrer, Olympia, for Petitioner.

Leanne M. Bremer, Vancouver, Ronald Franz, Seattle, for Respondent.

Bob Sterbank, Federal Way, amicus curiae on behalf of Wash. Ass'n of Wash. Attys.

Brent Boger, Vancouver, Timothy Harris, Robin Rivett, Russell Brooks, Bellevue, amicus curiae on behalf of Pacific Legal Foundation.

Greg Overstreet, Olympia, John Groen, Bellevue, Jodi Slavik, Olympia, amicus curiae on behalf on Building Industry Ass'n of Wash.

Pamela Loginsky, Olympia, amicus curiae on behalf of Wash. Ass'n of Prosecuting Attys.

Douglas Kendall, Washington, DC, Christine Gregoire, Atty. Gen., Roger Wynne, Asst. Atty. Gen., Seattle, amicus curiae on behalf of Ass'n of Wash. Cities.

IRELAND, J.

The City of Battle Ground sought review of the Court of Appeals' decision that the City unconstitutionally took property belonging to Benchmark Land Company by requiring Benchmark to make improvements to an existing street bordering its proposed subdivision as a condition to approving its plat application.

Finding that the City's condition for subdivision approval does not satisfy the substantial evidence standard of chapter 36.70C RCW, we hold that the City's condition is invalid as applied to Benchmark. Given the holding, it is unnecessary to reach the constitutional issue.

FACTS

In November 1994, Benchmark Land Company filed a preliminary plat application with the City of Battle Ground for a subdivision known as Melrose Park. Benchmark sought to develop a 20.25-acre site in the city into 56 single-family, residential lots.

Melrose Park is bordered on the east by North Parkway Avenue and on the south by Onsdorff Boulevard. Benchmark initially proposed to make improvements to both North Parkway and Onsdorff, and its original plat map included entrances to Melrose Park from both streets.

However, before the planning commission considered Benchmark's application, the city engineer suggested that the outlet to North Parkway be eliminated. Benchmark reconfigured its plat map accordingly, but did not remove the proposed improvements to North Parkway from the revised map. The planning commission considered the proposed plat of Melrose Park in March and April 1995. At its April meeting, the commission voted to recommend approval to the city council. When the city council considered the matter on May 15, 1995, the council voted to approve the preliminary plat. Neither the planning commission nor the city council entered written findings reflecting its decision.

Following the city council's approval, Benchmark began development activities, including work on the street improvements to North Parkway. However, Benchmark discovered that the improvements would be more costly than anticipated. In August 1995, Benchmark rescinded its offer to make the improvements.

Nonetheless, in January 1996, the city council adopted written findings of fact on its previous decision, approving the Melrose Park subdivision subject to "construction of Parkway Avenue and Onsdorff Boulevard, including half-width improvements as proposed by the applicant [Benchmark]." Clerk's Papers (CP) at 178. Thus, the City required Benchmark to improve North Parkway, which borders but has no direct access to Melrose Park.

The City maintains the improvements are required by ordinance.¹ At issue is a code provision requiring proposed subdivisions, as a condition of plat approval, to construct half-width road improvements "to that portion of an access street which abuts the parcel being developed." Former Battle Ground Municipal Code (BGMC) 12.16.180. "Access road" is defined as "a public street providing vehicular access to the boundary of a parcel of real property being proposed for development." Former BGMC 12.16.020(A).

PROCEDURAL HISTORY

Benchmark brought an action in superior court under the Land Use Petition Act (LUPA), chapter 36.70C RCW, challenging the City's condition of plat approval that required Benchmark to make improvements to North Parkway.

The superior court remanded the matter to the City "for consideration of whether the traffic impacts of the proposed preliminary plat of Melrose Park support a requirement of half street improvements to North Parkway Avenue." CP at 377-78.

On remand, both the City and Benchmark conducted traffic studies, which were presented to the planning commission. The results of the traffic studies are summarized below.

The City hired Lancaster Engineering to study traffic impacts of the proposed subdivision. Lancaster's report noted that North Parkway has one travel lane in each direction "with no curbs, paved shoulders, sidewalks, or bike paths." CP at 488. The report found that "with the addition of site trips from the Melrose Park Subdivision, there will be adequate capacity at the intersection of Parkway and Onsdorff." CP at 499. Lancaster found that the existing street was substandard "Parkway Avenue does not meet current safety and efficiency standards for width and lane configuration as specified by the Battle Ground Transportation Plan." Id. Lancaster concluded as follows: "Improving the roadway to meet current standards would mitigate the deficiency that would result from additional vehicular, bicycle, and pedestrian traffic due to the subdivision." Id. (emphasis added).

Benchmark hired The TRANSPO Group, Inc. to study the traffic impacts caused by Melrose Park. In examining the existing streets in the vicinity of the subdivision, TRANSPO noted that "[t]he 700-foot section of NE 132nd Avenue [North Parkway] which borders the site is consistent with other sections of NE 132nd Avenue from Main Street to NE 142nd Avenue." CP at 505. TRANSPO's analysis determined that the traffic volume increase on North Parkway due to the proposed development would be approximately 1.4 percent. TRANSPO concluded as follows: "An increase of this magnitude would be virtually indistinguishable to the average motorist and has no [e]ffect on overall intersection and roadway level of service." CP at 511. TRANSPO also stated that the project would have "little to no impact on safety and operations" on North Parkway. Id. TRANSPO did not find off-site improvements to be necessary as a result of Melrose Park.

Nonetheless, the commission determined that the development's impacts on North Parkway justified requiring Benchmark to make the street improvements. The city council agreed at its February 1997 open meeting, and the council issued the following written decision:

1. The City of Battle Ground shall not require additional dedication of land from the applicant to widen North Parkway Avenue north of Onsdorff Boulevard.[²]

2. Taking into consideration all of the impacts on North Parkway, the respective conclusions of the two traffic engineers and the facts submitted to the Planning Commission and reflected in the record and in the Findings of Fact of the Planning Commission, and further noted by the members of the City Council, it is reasonable and proportional to require the applicant to make standard half-street improvements to North Parkway Avenue only as it fronts Melrose Park Subdivision, consisting of pavement, curbs, gutter, bike lane, sidewalk, and stormwater drainage facility, together with associated striping and signage.

CP at 582 (emphasis added).

Benchmark again pursued judicial review and sought damages under federal and state law. Pursuant to CR 54(b), the court allowed Benchmark to proceed with its damages claims, but entered final judgment on its LUPA claim. In its order following remand, the court ordered, adjudged, and decreed as follows:

[T]hat the City has not brought forth substantial evidence of an "essential nexus" between possible impacts which may be caused by the Melrose Park Subdivision and half-street improvements to North Parkway Avenue; and ...

[T]hat the City has not brought forth substantial evidence of "rough proportionality" between possible impacts which may be caused by the Melrose Park Subdivision and half-street improvements to North Parkway Avenue; and ...

[T]hat the City's decision of February 6, 1997 that Benchmark be required to, inter alia, construct half-street improvements to North Parkway Avenue as a condition of approval of the Melrose Park Subdivision is not supported by substantial evidence.

CP at 655-56. The City appealed.

The Court of Appeals applied a Nollan/Dolan analysis³ "where the City requires the developer as a condition of approval to incur substantial costs improving an adjoining street." Benchmark Land Co. v. City of Battle Ground, 94 Wash.App. 537, 548, 972 P.2d 944 (1999). The court held that the City failed to show "an impact and a solution roughly proportional to the impact." Id. at 552, 972 P.2d 944. Accordingly, the court affirmed the superior court's ruling that the condition was invalid.

This Court at 138 Wash.2d 1008, 989 P.2d 1140 (1999) granted the City's petition for review and remanded to the Court of Appeals for reconsideration in light of City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 119 S.Ct. 1624, 143 L.Ed.2d 882 (1999). On remand, the Court of Appeals adhered to its original decision, stating as follows:

Although Del Monte Dunes defines "exactions" as "decisions conditioning approval of development on the dedication of property," ... we emphasize the similarity of exacting land and money. If the government in Nollan and Dolan had exacted money rather than land and then purchased land to solve the problems, the same questions would arise: was the money exacted for and used to solve a problem connected to the proposed development? (Nollan.) And was the amount of money exacted roughly proportional to the development's impact on the

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