Isla Verde Intern. Holdings v. CAMAS

Decision Date11 July 2002
Docket NumberNo. 69475-3.,69475-3.
Citation146 Wash.2d 740,49 P.3d 867
CourtWashington Supreme Court
PartiesISLA VERDE INTERNATIONAL HOLDINGS, INC., a foreign corporation; and Connaught International Holdings, Inc., a foreign corporation, Respondents, v. CITY OF CAMAS, Washington, a Municipal corporation of the State of Washington, Petitioner.

William Kamerrer, Olympia, for Petitioner.

Leanne Bremer, Vancouver, for Respondents.

Bob C. Sterbank on behalf of Washington State Association of Municipal Attorneys, amicus curiae.

Timothy M. Harris on behalf of Pacific Legal Foundation and Building Industry Association of Washington, amici curiae.

MADSEN, J.

This is an action brought under the Land Use Petition Act by a developer challenging the legality of conditions imposed by the City of Camas for approval of a preliminary plat for a residential subdivision. The challenged conditions include a 30 percent "open space" set aside and provision of a secondary limited access road into the proposed development for emergency vehicles. The Clark County Superior Court ruled on constitutional and statutory grounds that both conditions are unlawful. The Court of Appeals affirmed as to the open space requirement, holding that it constitutes an unconstitutional taking, but reversed as to the secondary access road, upholding this condition. We affirm the Court of Appeals, although in part on different grounds. We conclude that the open space set aside condition violates RCW 82.02.020, and thus do not reach arguments respecting the constitutionality of this requirement. We hold that the developer has failed to establish unconstitutionality or other invalidity of the secondary access road condition.

FACTS

In March 1995, the developer, Isla Verde International Holdings, Inc. and Connaught International Holdings, Inc. (together Isla Verde), submitted a preliminary plat application for a proposed 32-lot subdivision, Dove Hill, on 13.4 acres located in the City of Camas (City), in Clark County. The Director of Public Works for the City issued a determination of nonsignificance for the project. The plat application was later amended to include 51 lots.

Isla Verde planned to extend an existing road, Sierra Lane, into the new subdivision to provide the only access. Sierra Lane would be "stubbed" at the north edge of the development, with plans that it be extended when property to the north of Dove Hill was developed.

The Camas Planning Commission considered Isla Verde's application for preliminary plat approval at several meetings. A number of local residents testified that Sierra Lane often becomes impassable in winter conditions, and that residents of a subdivision south of the proposed subdivision have to park their vehicles at the bottom of the hill because the road becomes impassable. Several residents expressed concerns about fire safety issues. The Camas Fire Marshal also spoke about fire protection. He described the steep-sloped nature of the property, and the danger of wildfires in the area.1 He asked for a secondary access road for emergency vehicles, describing access into Dove Hill as a very bad situation.

The Planning Commission considered how the proposed subdivision would satisfy the City's "open space" ordinance, former Camas Municipal Code (CMC) 18.62.020 (1991) (repealed Mar. 2002),2 which requires that every proposed subdivision in the city must retain 30 percent of its area as open space. A June 16, 1995, staff report presented at the June 20, 1995, Planning Commission meeting included findings that, due to its location and configuration, the developer would meet only 37 percent of the total required acreage for open space. The remainder would be satisfied by a "buy down," i.e., a payment partially in lieu of the set aside, as permitted within the discretion of the Camas City Council by CMC 17.12.090(E) (1991).3 The report said that wildlife would be affected by the development, but a notation added that this comment was made with regard to the original 32 lot proposal. The report also included a notation that a concern had arisen about permitting a "buy down" in lieu of a full 30 percent open space set aside. This is evidently a reference to a June 12, 1995, letter from the City Administrator to the Assistant City Engineer/City Planner recommending that the Planning Commission approve a plat design with a full 30 percent open space set aside. The open space would largely consist of steep wooded slopes. The City Administrator explained that the City Council's recent decisions on proposed subdivisions had generally preferred the open space set aside rather than the optional "buy down." He said that a 30 percent set aside would add about four acres to the City's open space network, would be consistent with the objectives of the open space network, and would be consistent with past council decisions.

The Planning Commission approved the application, subject to a number of conditions, including construction of a secondary temporary access road from the end of NW Sierra Lane to an acceptable point to the east. The recommended conditions also contemplated that a homeowner's association would be required and that it would be responsible for maintenance of the open space areas.

On June 26, 1995, Isla Verde's application came before the Camas City Council for a final decision. The Council permitted local residents to comment on the application, and, with regard to a secondary access road, the same concerns regarding fire protection and access that were raised in the Planning Commission's meetings were voiced before the Council. The Fire Marshal again expressed concerns about fire protection and access to the proposed development. He also pointed out that the Uniform Fire Code required more than one access road for fire fighting equipment when a determination was made by the fire chief "that access by a single road may be impaired by vehicle congestion, condition of terrain, climatic conditions or other factors that could limit access." Clerk's Papers (CP) at 107. The neighbor to the east of the proposed subdivision stated that she would not grant an easement for a secondary access road over her property.

With regard to the open space set aside, several people spoke about wildlife at the site. Local resident Richard Palmer (the president of the homeowners' association for the subdivision just south of Dove Hill) presented a letter from an area habitat biologist with the Washington State Department of Fish and Wildlife addressed to Mr. Palmer. The biologist's letter stated that adequate open space within the Dove Hill subdivision was critical to survival of wildlife species. The biologist referred to a conversation with Palmer where Palmer told the biologist that several wildlife species had been seen at the site, including the pileated woodpecker, a candidate for listing as threatened, endangered or sensitive,4 and the ringneck snake, which had been found in Clark County only at one other location and was classified as a monitored species. The letter stated that Fish and Wildlife recommended that the full 30 percent set aside be required. Another resident also referred to this letter, and urged that the full 30 percent set aside for open space be required.

Isla Verde objected to the secondary access road requirement, stating that satisfying the condition was impossible because Isla Verde would be unable to obtain easements over neighboring property to construct the road. As to open space, as noted, Isla Verde proposed less than a 30 percent set aside,5 with a "buy down" to make up the difference. Isla Verde also objected to any separate impact fees for parks and open spaces. Chapter 3.88 CMC provides for imposition of impact fees to help pay for the cost of public facilities to serve new growth and development, and CMC 3.88.070 specifically allows impact fees for park and recreational facilities and open space.

The City Council decided to delay its decision until after an on-site visit, which occurred July 5, 1995. The Council then initially voted to deny Isla Verde's application because of fire safety concerns, but on July 24, 1995, reconsidered. It approved the preliminary plat application subject to the condition recommended by the Planning Commission for a secondary limited access road. It did not, however, specify where this road must be constructed. The City Council also required a full 30 percent open space set aside, with no "buy down." The City's decision on the application does not mention any impact fees imposed pursuant to chapter 3.88 CMC.

Isla Verde petitioned for review of the City's decision under the Land Use Petition Act (LUPA), chapter 36.70C RCW. Following review, the Clark County Superior Court entered an order holding that the secondary access road condition violates substantive due process and chapter 64.40 RCW, because the condition is impossible to satisfy, unduly burdensome, arbitrary and capricious, and denies all viable use of the property. The court held that the open space set aside constitutes a taking under the state constitution and a violation of RCW 82.02.020 and chapter 64.40 RCW, because the City made no individualized determination that the 30 percent set aside requirement is necessary to mitigate an impact of the development, the condition is disproportionate to the impact caused by the subdivision, and the City has not established a need for additional open space within the city limits as a result of the proposed development. Finally, the court held that the City's imposition of a parks impact fee and an open space impact fee was also unlawful, despite the lack of any such condition in the City's written decision. The City sought reconsideration, offering evidence to show the reason for enactment of the open space ordinance with its 30 percent requirement. The superior court declined to consider the...

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