City of Fed. Way v. Town & Country Real Estate Llc

• Decision Date: 10 May 2011
• Docket Number: No. 39407–3–II.
• Citation: City of Fed. Way v. Town & Country Real Estate Llc, 161 Wash.App. 17, 252 P.3d 382 (Wash. App. 2011)
• Court: Washington Court of Appeals
• Parties: CITY OF FEDERAL WAY, a Washington municipal corporation, Respondent,v.TOWN & COUNTRY REAL ESTATE, LLC, a Washington limited liability corporation; Frank A. Scarsella, taxpayer; Emil P. Scarsella, taxpayer; and the City of Tacoma, a Washington municipal corporation, Appellants.

161 Wash.App. 17

252 P.3d 382

CITY OF FEDERAL WAY, a Washington municipal corporation, Respondent,

v.TOWN & COUNTRY REAL ESTATE, LLC, a Washington limitedliability corporation; Frank A. Scarsella, taxpayer; Emil P. Scarsella, taxpayer; and the City of Tacoma, a Washington municipal corporation, Appellants.

No. 39407–3–II.

Court of Appeals of Washington, Division 2.

April 5, 2011.As Corrected May 10, 2011.

Richard R. Wilson, Hillis Clark Martin & Peterson PS, Seattle, WA, for Appellant.Bob C. Sterbank, Kenyon Disend PLLC, Issaquah, WA, Peter Bruce Beckwith, City of Federal Way, Federal Way, WA, Duncan Mcgehee Greene, Jay Palmer Derr, GordonDerr LLP, Seattle, WA, for Respondents.Grant David Wiens, Dionne & Rorick LLP, Seattle, WA, amicus counsel for Washington State Assoc. of Municipalities.HUNT, J.

[161 Wash.App. 22]¶ 1 Town & Country Real Estate, LLC, Frank A. Scarsella, and Emil P. Scarsella(collectively “Town & Country”) appeal the superior court's reversal of the City of Tacoma's hearing examiner's decision striking a State Environmental Policy Act (SEPA)¹ traffic impact mitigation payment from Tacoma's conditional approval of a proposed residential development.Town & Country argues that (1)we must give special deference to the hearing examiner's legal conclusions; (2)RCW 82.02.020's definition of “direct impact” does not encompass the traffic effects that the proposed development will generate; (3) the mitigation payment is not “reasonably necessary” under RCW 82.02.020;(4) the mitigation payment is not based on a “specific” environmental impact as SEPA requires; ² and (5) the mitigation payment is not “reasonable and capable of being accomplished” under SEPA.³

¶ 2Despite Town and Country's having appealed the superior court's order reversing the hearing examiner's decision, Federal Way bears the burden on appeal to show the invalidity of the hearing examiner's decision.⁴Federal Way argues that the hearing examiner: (1) lacked jurisdiction to consider Tacoma's “statutory authority or jurisdiction,”Br. of Appellant (Federal Way)at 26, to require the mitigation payment; (2) applied the wrong standard of review; (3) made at least one erroneous finding of fact; (4) erred in concluding that RCW 82.02.020 requires “ ‘nexus' ” and “ ‘rough proportionality,’ ”Br. of Appellant (Federal Way)at 33(quotingClerk's Papers(CP)at 44) analyses; (5) erred by concluding that RCW 82.02.020 barred Tacoma from seeking the mitigation payment because (a) the road improvement projects had been planned before Town & Country proposed its development, and (b) Federal Way intends to construct these improvement projects regardless of whether Town & Country completes its proposed development; (6) erroneously concluded that the number of trips the proposed development would generate was “insignificant,”Br. of Appellant (Federal Way)at 47, under SEPA; and (7) erred by applying the Growth Management Act (GMA)⁵ to this case.Tacoma echoes some of Federal Way's arguments.Tacoma also argues that some of its hearing examiner's findings of fact are actually legal conclusions or applications of law to the facts.

¶ 3 Holding that Tacoma's mitigation payment was lawful under RCW 82.02.020andSEPA, we affirm most of the superior court's decision, reverse the hearing examiner's striking of the mitigation payment condition from Tacoma's approval of the Scarsella plat, and reinstate Tacoma's imposition of the mitigation payment.

FACTS

¶ 4 Town & Country owns 9.22 acres within the City of Tacoma's jurisdictional boundaries; part of this land abuts Federal Way.Town & Country sought Tacoma's approval of its “Scarsella Preliminary Plat,” proposal to subdivide its 9.22 acres into 51 single-family residential lots.Administrative Record (AR)at 345.Town & Country retained Hans Korve of DMP Engineering to act as its representative and project manager for the Scarsella plat.

I.Application Process

¶ 5 On December 18, 2006, Korve submitted to the city of Tacoma Town & Country's application for approval of the Scarsella plat, with the required environmental checklist.⁶As part of its “typical process” for reviewing such an application, Report of Proceedings (RP)(June 19, 2008)at 19, Tacoma forwarded, in a memorandum dated March 2, 2007, Town & Country's application and checklist to “All Concerned Agencies and Departments,”ARat 773, for their review and comments.Federal Way was among the recipients.

A.Adverse Transportation Impact Projects

¶ 6 In a March 16, 2007 letter to Tacoma, Federal Way: (1) expressed concerns “about adverse transportation impacts to existing and future City of Federal Way streets and intersections resulting from the [Scarsella plat]”; (2) requested that “a traffic impact analysis be required”; and (3) advised that the environmental checklist “must be revised to identify impacted City of Federal Way roadways, and identify mitigation of significant adverse transportation impacts.”⁷ARat 360.Tacoma forwarded Federal Way's comments to Korve.

¶ 7 Shortly thereafter, Korve contacted Richard Perez, a Federal Way traffic engineer.Perez suggested that Korve use Federal Way's “concurrency analysis”⁸ to study the Scarsella plat's potential traffic effects.RP(July 11, 2008)at 176.Following Perez's suggestion, Korve provided Federal Way with a “Concurrency Application.”ARat 1244.After Korve submitted the “Concurrency Application,” Federal Way conducted an independent study of the Scarsella plat dated October 11, 2007 and titled “Transportation Concurrency Analysis.”ARat 1149.

¶ 8 Federal Way's “Transportation Concurrency Analysis” addressed four factors to consider in determining how a proposed development would affect the city's roadways: (1) the number of trips the proposed development would generate; (2) the directions the trips would take (“trip distribution”); (3) the mode of transportation of each trip (carpool, transit, individual driving, etc.); and (4) the route each trip would take (“transit assignment”).⁹RP(July 11, 2008)at 140–41.This analysis then focused on a point within the following six years (“horizon year”)¹⁰ to determine whether Federal Way would have the “capacity to absorb” the traffic that a proposed development would generate at that point.RP(July 11, 2008)at 210.If Federal Way would not have the capacity to absorb the projected traffic from the proposed development, then a “level of service failure”(LOSF) would occur.¹¹RP(July 11, 2008)at 274.

¶ 9 A“transportation improvement plan”(TIP) is necessary to mitigate a LOSF.RP(July 11, 2008)at 209.Adopting Perez's and other administrative hearing witnesses' language, we similarly refer to construction projects or repair works intended to mitigate current or future traffic conditions as “TIPs.”See, e.g.,RP(July 11, 2008)at 180–81.Federal Way's October 11, 2007 Transportation Concurrency Analysis concluded that the Scarsella plat would generate at least one new trip at each of 22 different Federal Way locations already scheduled to undergo TIPs.The study recommended that Town & Country “pay [a] pro-rata share contribution towards these projects in the amount of $439,282.”¹²ARat 1149.

¶ 10 Federal Way conducted a second study dated October 29, 2007.One significant difference between the first and second studies was that the first study included all TIPs affected by one Scarsella plat-generated trip or more; the second study included only TIPs affected by a “10–trip threshold.”RP(July 11, 2008)at 180.Using this latter standard, the October 29, 2007 study determined that the Scarsella plat's expected traffic would impact only four locations already scheduled to undergo a TIP.This second study recommended that Town & Country “voluntarily contribute $266,344 in pro-rata share contributions.”ARat 413.On November 5, 2007, Federal Way sent a letter asking Tacoma to “impose traffic mitigation in the amount of $266,344” on Town & Country as a condition of approval of the Scarsella plat.ARat 292.Federal Way later revised its requested amount of traffic mitigation to $250,123.¹³

¶ 11 In December 2007, Korve asked licensed traffic engineer and traffic engineering expert Christopher Brown to evaluate Federal Way's October 29, 2007 study.Brown wrote a letter to Korve expressing “grave doubts” about Federal Way's calculations of how many trips the Scarsella plat would generate and the distribution of these trips.ARat 666.Brown also submitted his own “Traffic Assignment Analysis,” dated February 25, 2008, ARat 672, which concluded that “[n]o traffic mitigation fees to Federal Way streets are justified.”ARat 683.

B.Mitigated Determination of Non–Significance

¶ 12 On April 9, 2008, Tacoma issued a Mitigated Determination of Nonsignificance (MDNS) under its SEPA authority.Tacoma approved the Scarsella plat on condition that Town & Country either “construct[s] all TIP projects impacted by ten or more vehicular trips or voluntarily contribute $266,344 to the City of Federal Way in pro-rata share contributions.”¹⁴ARat 264.We refer to this condition as the “mitigation payment.”

[252 P.3d 388 , 161 Wash.App. 28]

¶ 13 In an April 21, 2008 letter to the Tacoma Public Works Department, Korve declared Town & Country's intent to appeal the mitigation payment condition of Tacoma's approval of the Scarsella plat.Korve also asserted that Tacoma had failed to comply with various provisions of the Tacoma Municipal Code.Korve's assertions included slightly different versions of the arguments that Town & Country now raises on appeal: That the mitigation payment that was not “reasonable and capable of being accomplished” under SEPA and had “no clear nexus” between the traffic the Scarsella plat would generate and the TIP locations.ARat 706(emphasis omitted).

I.Tacoma Hearing Examiner

¶ 14 A hearing was held before a Tacoma hearing examiner on May 1, 2008.Although the record contains no...