Capr v. Sims
Decision Date | 07 July 2008 |
Docket Number | No. 59416-8-I.,59416-8-I. |
Citation | 145 Wn. App. 649,187 P.3d 786 |
Court | Washington Court of Appeals |
Parties | CITIZENS' ALLIANCE FOR PROPERTY RIGHTS; Jeffrey Wright; Stan Alderman; Alan Stuart; Dan Covey; and J. Thomas Bernard, Appellants, v. Ron SIMS, in his official capacity as King County Executive; King County, a municipal corporation of the state of Washington; and the Metropolitan King County Council, Respondents. |
Brian Trevor Hodges, Pacific Legal Foundation, Bellevue, WA, Sonya D. Jones, Evergreen Freedom Foundation, Olympia, WA, for Appellants.
Darren E. Carnell, Stephen Paul Hobbs, Office of the Prosecuting Attorney, Seattle, WA, for Respondents.
Keith Patrick Scully, Gendler & Mann LLP, Seattle, WA, for Amicus Curiae on behalf of Futurewise, People for Puget Sound, Transportation Choices Coalition, Citizens for a Healthy Bay, Wild Fish Conservancy, Sierra Club.
PUBLISHED IN PART
¶ 1 The primary issue on appeal is whether King County Ordinance 15053 § 14 (KCC 16.82.150), which limits clearing on property zoned rural area residential (RA) to a maximum of 50 percent, depending on the size of the parcel, violates RCW 82.02.020. The state statute generally prohibits counties from imposing "any tax, fee, or charge" on the development of land, subject to certain exceptions. The parties also address constitutional claims that we need not reach.
¶ 2 Because the clearing limitations of the ordinance fall within the scope of an in kind indirect "tax, fee, or charge" on development, and the County has failed in its burden to show that the limitations fall within any of the statutory exceptions, we reverse.1
¶ 3 Washington adopted the Growth Management Act (GMA) in 1990.2 King County enacted its Clearing and Grading Critical Areas Ordinance in 2004 pursuant to a GMA mandate that local jurisdictions adopt regulations to protect critical areas.3 King County Code (KCC) 16.82.150, at issue here, limits the amount of land that may be cleared on a given parcel of property zoned as rural. Clearing limits vary depending on parcel size.4 These limits may be modified by an approved farm management or rural stewardship plan.5 The standards of this ordinance do not apply if more restrictive standards apply through other provisions of the KCC or through critical drainage area designations.6 The Director of King County's Department of Development and Environmental Services7 may modify or waive subsections of the ordinance, subject to conditions stated in the ordinance.8
¶ 4 In March 2005, Citizens' Alliance for Property Rights, a political action committee, and five individuals whose lands are subject to the ordinance (collectively "CAPR") commenced this action against King County and others. They alleged that KCC 16.82.150 violates RCW 82.02.020. They also alleged that the ordinance violates substantive due process and other provisions of the Washington constitution.
¶ 5 In its answer, King County raised the affirmative defense of lack of ripeness to the claim based on RCW 82.02.020. The County based its defense on the lack of any evidence that CAPR had first sought relief from the Growth Management Hearings Board to contest the scientific validity of the clearing limits of the ordinance.
¶ 6 CAPR moved to dismiss this affirmative defense, asserting that it neither pled nor would argue that King County failed to properly apply the best available science under the GMA. CAPR also asserted that it would not argue that the County failed to properly balance goals under the GMA.9
¶ 7 Based on these representations, the trial court granted CAPR's motion and dismissed King County's affirmative defenses relating to the statutory claim. The court also granted King County's summary judgment motion dismissing CAPR's substantive due process claim as unripe.
¶ 8 In late 2006, the parties made cross-motions for summary judgment on CAPR's RCW 82.02.020 claim. CAPR also moved to strike one of King County's declarations and all but one of its exhibits. It also sought a continuance pursuant to CR 5610 to conduct discovery with respect to one expert. The court denied CAPR's motions to strike and continue. Thereafter, the court granted King County's cross-motion for partial summary judgment, dismissing CAPR's RCW 82.02.020 claim. The court entered final judgment in favor of King County.
¶ 9 CAPR appeals.
¶ 10 CAPR claims that the trial court erred in entering summary judgment in favor of King County and dismissing its claim. Specifically, CAPR argues that KCC 16.82.150 violates the limitations of RCW 82.02.020. We agree.
¶ 11 A motion for summary judgment may be granted when there is no genuine issue as to any material fact, and the moving party is entitled to a judgment as a matter of law.11 We review a summary judgment order de novo, viewing the facts and reasonable inferences in the light most favorable to the nonmoving party.12
¶ 12 An appellate court should normally refrain from deciding constitutional issues where alternate grounds for decision exist.13 "RCW 82.02.020 generally provides, with some exceptions, that the state preempts the field of imposing certain taxes."14 The statute states in relevant part:
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.15
¶ 13 There are 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."16
¶ 14 17
¶ 15 The burden to prove that a condition is reasonably necessary as a direct result of the proposed development is on the governmental entity imposing the requirement.18
"Tax, Fee, or Charge"
¶ 16 Threshold questions in this case are whether KCC 16.82.150 imposes a "tax, fee, or charge," which the state statute expressly prohibits, and, if so, whether the clearing limitations fall within one of the limited exceptions. CAPR claims the ordinance violates RCW 82.02.020. The County disagrees.
¶ 17 KCC 16.82.150 provides in relevant part as follows:
Clearing standards for individual lots in the rural zone.
1. For lots one and one-quarter acre or smaller:
a. clearing shall not exceed the greater of:
(1) the amount cleared before January 1, 2005, or cleared under a complete clearing permit application filed before October 25, 2004, in accordance with previous county regulations;
(2) fifty percent of the lot area; or
(3) seven thousand square feet.
b. any clearing required for the construction of access, utilities and septic systems shall not be counted towards the amount of clearing allowed under this subsection;
2. For lots greater than one and one-quarter acres and up to fives acres in area, clearing shall not exceed the greater of:
a. the amount legally cleared before January 1, 2005, or cleared under a complete clearing permit application filed before October 25, 2004, in accordance with previous county regulations; or
b. fifty percent of lot area 3. For lots greater than fives [sic] acres, clearing shall not exceed the greater of:
a. the amount legally cleared before January 1, 2005, or cleared under a complete clearing permit application filed before October 25, 2004, in accordance with previous county regulations;
b. two and one-half acres, or
c. thirty-five percent of lot area; and
4. For lots greater than one and one-quarter acre in either the Bear Creek basin, the Issaquah Creek basin and the May Creek basin, clearing shall not exceed the greater of:
a. the amount legally cleared before January 1, 2005, or cleared under a complete clearing permit application filed before October 25, 2004, in accordance with previous county regulations; or
b. thirty-five percent of lot area;
1. The Critical Areas Code, K.C.C. chapter 21A.24, and its adopted public rules;
2. Property-specific development standards or special district overlays under K.C.C. chapter 21A.38; or
3. Critical drainage area designations identified by adopted public rule.19
¶ 18 Additionally, subsection C provides that where a rural stewardship plan or farm management plan exists, that plan establishes the applicable clearing limits. It also exempts certain lots within a subdivision or short subdivision from the limits announced in subsection A ( ). It permits a land owner to count most critical areas and buffers toward the requirements of subsection A. It further exempts areas such as public road easements, areas encumbered by a utility corridor, and relocated equestrian trails from the clearing limits. It also states that clearing standards for mining uses are governed by other provisions of the King County Code.20
¶ 19 Subsection D authorizes the Director to modify or waive the requirements of a subsection of KCC 16.82.150. The modification or waiver depends on where the site is located and whether a development proposes certain uses such as particular types of parks, libraries, government, and educational services.21
¶ 20 Here, the parties took the position below that there were no genuine issues of material fact for decision by the trial court.22 Neither takes a different position on...
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