Cobb v. Snohomish County

• Decision Date: 04 November 1991
• Docket Number: No. 24680-1-I,24680-1-I
• Parties: Larry COBB, Robert Hale, and R/L Associates, Inc., Appellants, v. SNOHOMISH COUNTY, Respondent.
• Court: Washington Court of Appeals

Page 451

64 Wn.App. 451

829 P.2d 169

Larry COBB, Robert Hale, and R/L Associates, Inc., Appellants, v. SNOHOMISH COUNTY, Respondent.

No. 24680-1-I.

Court of Appeals of Washington,

Division 1.

Nov. 4, 1991.

As Amended on Denial

of Reconsideration Feb. 28, 1992.

Review Denied June 3, 1992.

Richard B. Sanders and Sanders Law Office, Bellevue, for appellants.

Seth R. Dawson, Pros. Atty., and Evelyn Sue Tanner, Deputy Pros. Atty., Drew Nielsen and Nielsen, Nielsen & Leach, Everett, for respondent.

PEKELIS, Judge.

Larry Cobb, Robert Hale, and R/L Associates, Inc. (Cobb), challenge the validity of Title 26B of the Snohomish County Code (SCC) which requires that developers share in the cost of improving road systems impacted by proposed land development projects. Cobb contends that the ordinance imposes unauthorized taxes, fees or charges on developers, violates substantive due process, and effects a taking of private property without just compensation.

I

A. SCC Title 26B

On May 11, 1982, the Snohomish County Council adopted a revised road ordinance, SCC Title 26B, in an effort to address those problems associated with the increasing demand placed on county roads by intensified land use and rapid population growth. Former SCC 26B.50.010.

The declared purpose of the ordinance is to "ensure that public health, safety and welfare will be preserved by having adequate roads to new and existing developments by requiring all land development projects in unincorporated Snohomish county ... to pay for a proportionate share of the cost of road improvements due to such land developments." Former SCC 26B.50.020.

To effectuate this purpose, the ordinance requires that developers agree to perform certain remedial measures before receiving land use approval from the County. Former SCC 26B.52.010. Developers are required, upon request, to prepare a comprehensive traffic study detailing the immediate and long-term effects of the proposed development on the level of traffic service (LOS) of the surrounding road system. ¹ Former SCC 26B.53.030(f); see also former SCC 26B.52.010(1). The ordinance incorporates the LOS criteria outlined in the Highway Capacity Manual, a guide published by the Transportation Research Board. Former SCC 26B.51.010. The criteria are based on the unused capacity of the particular lane in question, and may range from "A" (little or no traffic delays) to "E" (very long traffic delays).

Under Chapter 26B.55, developers may have to agree to contribute to certain road improvements in order to obtain project approval. In general, the greater the expected traffic delay following a project's completion, the greater the obligation imposed upon the developer. Thus, where a project will be served by a road system of LOS A or B, the developer has no obligation to make off-site road improvements. At most, the developer may be required to perform frontage road improvements or dedicate an additional right-of-way. Former SCC 26B.55.020.

Where a project will be served by a road system of LOS C, the developer is obligated to agree not to protest formation of a road improvement district (RID) and also may be required to perform frontage road improvements or dedicate an additional right-of-way. Former SCC 26B.55.030.

In contrast, "developers whose projects will be served by a road system which will be at level of service D following completion of the development shall incur obligations to mitigate the direct impact of said development." This is to be done by executing a valid written voluntary agreement with the county in which the developer agrees to pay a proportionate share of the cost of mitigation improvements. Former SCC 26B.55.040(1). The proposed development will not be approved until all necessary funding is committed and the project is under contract or construction. Former SCC 26B.55.040(2).

B. COBB'S SUBDIVISION

In December 1987, Cobb applied to the County for preliminary plat approval to subdivide a 5.07 acre parcel of property into 18 single family lots. The proposed subdivision, named "Zenith Village", was located north of 234th Street S.W. and west of State Highway 99 (SR 99). Cobb was a contract purchaser of part of the property and an agent for the owners of the remaining portions. Pursuant to SCC 26B.53, Cobb furnished the County Department of Public Works (DPW) with a traffic study detailing, inter alia, the impacts of the subdivision on the 234th Street S.W./SR 99 intersection. The study concluded that:

[t]he intersection of 234th St. S.W. and Highway 99 would operate at the C/D range as indicated by the attached analysis. Traffic movements with proposed subdivision traffic all operate at LOS C. It is only those movements approaching Highway 99 from the east and Highway 99 southbound left turn movements that would operate at LOS D. The proposed subdivision would not contribute any vehicles to these movements.

Although the DPW found Cobb's study generally acceptable, it took the position that the question of whether the development directly impacted traffic conditions was determined by characterization of the entire 234th Street S.W./ SR 99 intersection. Since this intersection as a whole would operate at LOS D, Cobb was asked to submit a mitigation proposal pursuant to former SCC 26B.55.040(1)(a). Cobb and the DPW entered into negotiations to determine the appropriate fee to mitigate the direct impact of the development on the intersection in question but were unable to reach an agreement on the correct formula to be applied. Thus, under former SCC 26B.55.070(2), the matter was brought before a hearing examiner to decide on the correct impact mitigation measures to be undertaken as a condition of plat approval.

At the hearing the DPW claimed that because Cobb's development would result in adding vehicles to an intersection which was already at LOS D, his proportionate share should be based upon full improvement of the entire intersection. It thus asked the hearing examiner to reject Cobb's mitigation offer, which was based simply on a proportionate share of the estimated $10,000 cost of a left turn lane for the west leg of 234th/SR99 intersection, the only leg his development would directly affect.

The hearing examiner found Cobb's traffic impact mitigation offer unacceptable, determining that, as the DPW contended, only full improvement of the entire intersection from LOS D to LOS B or better satisfied the mitigation requirement. Additionally, the hearing examiner noted that because the State Department of Transportation had no plans for major signalization or road improvements, Cobb's offer for the 234th Street SW/SR 99 intersection was infeasible.

On appeal, the Snohomish County Council upheld the hearing examiner's decision. Cobb then brought an action in Snohomish County Superior Court, requesting that SCC Title 26B be declared invalid as an unconstitutional tax. The trial court denied Cobb's motion for declaratory relief on the grounds that its "interpretation of SCC Title 26B that the maximum exaction required from an applicant cannot exceed the pro rata cost of roadway improvements attributable to an applicant's proposed project" rendered the ordinance constitutional.

The trial court ordered the County to grant Cobb's application for preliminary plat approval upon payment of his pro rata share of the proposed left turn lane. In essence, the trial court adopted Cobb's mitigation offer which the hearing examiner had rejected. The court gave Cobb the choice of paying a flat $25 fee or an exaction based on a revised calculation of Cobb's proportional share. He paid the $25 fee under protest.

Cobb appeals, challenging both the validity of SCC Title 26B on its face and as applied to his request for preliminary plat approval of his proposed subdivision.

II

Cobb contends first that SCC Title 26B is nothing more than a scheme for imposing taxes, fees, or charges on developers in violation of RCW 82.02.020.

RCW 82.02.020, provides in relevant part:

[N]o county, city, town, or other municipal corporation shall impose any tax, fee, or charge, either direct or indirect, on the construction or reconstruction of residential buildings, commercial buildings, industrial buildings, or on any other building or building space or appurtenance thereto, or on the development, subdivision, classification, or reclassification of land.

Laws of 1982, 1st Ex. Sess., ch. 49, § 5 (effective July 1, 1982).

Early cases interpreting this statute focused on "whether a development fee constituted an unauthorized tax or a valid regulatory scheme, as that distinction was explained in Hillis Homes, Inc. v. Snohomish Cy., 97 Wn.2d 804, 809, 650 P.2d 193 (1982)". R/L Associates v. Seattle, 113 Wash.2d 402, 408, 780 P.2d 838 (1989). However, as R/L Associates makes clear, the "tax/regulation distinction" is no longer relevant because the statutory prohibition against "taxes, fees, or charges" is so all-encompassing it applies to all development fees unless specifically excepted. R/L Assocs., 113 Wash.2d at 409, 780 P.2d 838.

Accordingly, if SCC Title 26B required developers to pay a fee, tax, or charge even if that were specifically used for payment of off-site road improvements, it would run afoul of RCW 82.02.020. However, RCW 82.02.020 also creates an exception for "voluntary agreements ... that allow a payment in lieu of a dedication of land or to mitigate a direct impact that has been identified as a consequence of a proposed development, subdivision, or plat." (Emphasis added). In other words, a developer may enter into an agreement with local government to pay a fee which local government has established is "reasonably necessary as a direct result of the proposed development or plat." RCW 82.02.020; see also Southwick, Inc. v. Lacey, 58 Wash.App. 886, 895, 795 P.2d 712 (1990); Comment, Subdivision Exactions in Washington: The Controversy Over Imposing Fees on Developers, 59 Wash.L.Rev. 289, 298 (198...