Henderson Homes, Inc. v. City of Bothell
| Decision Date | 21 July 1994 |
| Docket Number | No. 59696-4,59696-4 |
| Citation | 124 Wn.2d 240,877 P.2d 176 |
| Parties | HENDERSON HOMES, INC., a Washington corporation; Conner Development Company, a Washington corporation; and DuJardin Development Company, a Washington corporation, Petitioners, v. CITY OF BOTHELL, a municipal corporation, Respondent. |
| Court | Washington Supreme Court |
Groff & Murphy, Michael J. Murphy, Celeste T. Stokes, and Davis, Wright & Tremaine, John E. Keegan and Stephen M. Rummage, Seattle, for petitioners.
Ogden, Murphy & Wallace, Wayne D. Tanaka, Seattle, for respondent.
Glenn J. Amster, Seattle, amicus curiae for petitioners on behalf of the Bldg. Industry Ass'n of Washington.
Plaintiffs are three companies which developed residential subdivisions within the city of Bothell (City). As a condition of the preliminary plat approval, the City required execution of "voluntary" agreements under which the developers were required to pay a predetermined $400 per lot as park-impact mitigation fees.
Plaintiffs paid a combined total of $106,000 in such impact fees in 1986 and 1987. Plaintiffs sued for a refund of those fees in 1989. Bothell argued that the suit was time barred by a 30-day limitation in the platting statute, RCW 58.17.180, and that the developers should be estopped from their refund claims.
The trial court held that the suit was timely because Bothell had not complied with RCW 82.02.020, the statute which authorizes impact fees, and, therefore, the 3-year statute of limitations, applicable to actions for the refund of taxes, fees or indirect charges on development, was the governing limitation. The trial court ordered a refund of the fees and prejudgment interest.
The Court of Appeals reversed with Judge Agid dissenting. Henderson Homes, Inc. v. Bothell, 67 Wash.App. 196, 834 P.2d 1071 (1992). The majority held that the claims for refunds were barred by estoppel and by the 30-day limitation of RCW 58.17.180. We reverse the Court of Appeals and affirm the trial court.
The key focus is on RCW 82.02.020 as it existed at relevant times. The City collected these impact fees, as a condition of plat approval, relying solely on RCW 82.02.020. That statute begins with an absolute prohibition against these impact fees: "[N]o 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."
There are two narrowly drawn exceptions to this absolute prohibition: (1) "However, this section does not preclude dedication of land or easements [pursuant to RCW 58.17.110, the platting statute]" under certain conditions. RCW 82.02.020. Bothell concedes and the trial court found that Bothell never sought dedication of land to mitigate impacts so this exception is irrelevant.
The second exception is the sole authority for the fees extracted in this case. It provides: "This section does not prohibit voluntary agreements with ... cities ... that allow a payment ... to mitigate a direct impact that has been identified as a consequence of a proposed development, subdivision, or plat." (Italics ours.) RCW 82.02.020. Since it is only this statute which authorized these fees, it must be examined in detail, along with the findings of fact.
The findings of fact and conclusions of law are set out in the appendix. However, the status of the findings must be made clear. Two findings are critical and bear repeating. Finding of fact 12: "Bothell failed to identify any direct impacts of plaintiffs' developments on the Bothell park system." Clerk's Papers, at 83. No error is assigned to this finding. Finding of fact 13: "Beyond the conclusionary statements contained in the plat approval conditions for plaintiffs' development, there are no documents or records supporting any analysis by the City of Bothell of the direct impacts of plaintiffs' developments on the park system."
(Italics ours.) Clerk's Papers, at 83. No error is assigned to this finding. We must compare those unchallenged findings to the requirement of the statute which must be met to extract an impact fee: "[T]o mitigate a direct impact that has been identified as a consequence of a proposed development, subdivision, or plat." RCW 82.02.020.
We will summarize or paraphrase other findings of fact which demonstrate clearly that there was a total lack of compliance with the statute. Therefore, the impact fees are unauthorized, constitute an illegal tax fee or charge and result in an unjust enrichment to the City, all of which leads to application of the 3-year statute of limitations.
Bothell does assign error to the findings mentioned hereafter. However, Bothell nowhere argues that the findings are not supported by substantial evidence, it makes no cites to the record to support its assignments, and cites no authorities. Therefore, its assignments of error to the findings are without legal consequence and the findings must be taken as verities. It is elementary that the lack of argument, lack of citation to the record, and lack of any authorities preclude consideration of those assignments. The findings are verities. Cowiche Canyon Conservancy v. Bosley, 118 Wash.2d 801, 809, 828 P.2d 549 (1992); American Legion Post 32 v. Walla Walla, 116 Wash.2d 1, 7, 802 P.2d 784 (1991); Transamerica Ins. Group v. United Pac. Ins. Co., 92 Wash.2d 21, 29, 593 P.2d 156 (1979); Lewis River Golf, Inc. v. O.M. Scott & Sons, 120 Wash.2d 712, 725, 845 P.2d 987 (1993); Bowles v. Department of Retirement Sys., 121 Wash.2d 52, 80, 847 P.2d 440 (1993).
The relevant findings of fact disclose the following:
1. Bothell had no formula nor ascertainable standards so that a determination of the impact of a project on the park system could be made. ( of fact 7.)
2. Bothell "failed to consistently and rationally take into account existing park and recreation facilities in determining the impact of plaintiffs' developments". ( of fact 8.) Clerk's Papers, at 82. 3. Bothell's own park plan required consideration of school recreation facilities as part of the park inventory, but in assessing the impact of projects, Bothell ignored its own plan and gave no credit to school recreation facilities. ( of fact 9.)
4. When plaintiffs developed their subdivisions, there was a surplus of recreation facilities under Bothell's own standards. ( of fact 10.)
5. Bothell did not undertake any understandable analysis to identify the direct impacts of the developments. ( of fact 11.)
6. Bothell never requested that plaintiffs dedicate land for park purposes. ( of fact 17.)
In addition to extracting fees as condition of plat approval in complete disregard of the very clear requirements of the statute, the City totally ignored the statutory requirements as to spending the impact fees. The specific fees are to be held in a reserve account, and "may only be expended to fund a capital improvement agreed upon by the parties to mitigate the identified, direct impact". (Italics ours.) RCW 82.02.020(1).
Again, the findings of fact are compelling against Bothell. They were:
1. No capital improvements were ever identified by Bothell or agreed to by plaintiffs (as required by the statute). ( of fact 19.)
2. Bothell made no attempt to correlate expenditures of the fees with any impacts (as required by statute). ( of fact 18.)
3. Bothell expended part of these fees for other than capital improvements [prohibited by the statute]. ( of fact 21.)
The position of the City is best summarized by testimony from its own witness that any correlation between fees paid by plaintiffs and expenditures for the impacts of their projects would be purely coincidental. Verbatim Report of Proceedings vol. 4, at 588, 595-604, 607-10.
The City repeatedly claims that these agreements were voluntary. An internal city memorandum shows why the trial court could and did find they were not voluntary. The internal memorandum is from the acting planning administrator for city council information and includes an analysis by the city attorney regarding "voluntary" agreements. It states in part:
There must be emphasis on making sure that the agreement is "voluntary". Again, a good record during the proceeding is essential. These include:
(a) Staff statements that the developer has volunteered....
(b) Ask the developer during the course of the hearing if he has voluntarily made the offer or if he agrees with the proposed written conditions.
(c) If the developer qualifies the response in any way pursue it until the 'damning...
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