ISLA VERDE INTERN. v. City of Camas

• Citation: 99 Wash. App. 127,99 Wn. App. 127,990 P.2d 429
• Decision Date: 17 December 1999
• Docket Number: No. 23225-1-II.,23225-1-II.
• Court: Court of Appeals of Washington
• Parties: ISLA 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, Appellant.

990 P.2d 429

99 Wn. App. 127

99 Wash. App. 127

ISLA 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, Appellant.

No. 23225-1-II.

Court of Appeals of Washington, Division 2.

December 17, 1999.

As Clarified on Denial of Reconsideration February 11, 2000.

Leanne Marie Bremer, Miller Nash Llp, Vancouver, for Respondents.

William Dale Kamerrer, Law Lyman Daniel Kamerrer, Olympia, for Appellant.

SEINFELD, J.

This case involves a challenge to a city's open-space set-aside ordinance and to a city requirement that a developer construct a secondary access road as a condition of approval for its subdivision application. The superior court found that the road requirement violated due process and RCW 64.40 and that the set-aside ordinance provided for an unconstitutional taking. The City of Camas appeals.

Because there is no evidence that the set-aside ordinance is roughly proportional to the impact of the proposed development, we agree that it is constitutionally defective. But the record does indicate that legitimate fire safety concerns led to the road requirement and that the road is reasonably necessary for public safety. Further, the developer failed to show that the requirement is unduly oppressive. Thus, this requirement violates neither the constitution nor statute. Consequently, we affirm the trial court's ruling regarding the set-aside ordinance, but reverse the ruling regarding the road requirement.

FACTS

Isla Verde International Holdings, Ltd., initially proposed a 32-lot subdivision (Dove Hill) in the City and later amended its proposal to 51 lots. Sierra Lane, the only road leading into Dove Hill, enters the subdivision at its southeastern corner, snakes through the proposed lots, and terminates at the north edge of the development. According to Isla Verde's engineer, plans provide for Sierra Lane to continue northward with the future development of adjoining property.

The City Planning Commission considered Isla Verde's application at two meetings. Numerous local residents spoke in opposition to the subdivision, particularly complaining about traffic, runoff, and fire safety, pointing out that Sierra Lane often becomes impassible in winter snow and ice, thus hindering emergency vehicle access. The Fire Department also expressed concern about emergency access. Noting the City's ordinance against cul-de-sacs longer than 400 feet, the subdivision's proximity to "wild land fuels," and the steep slopes approaching the site, the Fire Department asked the City to require a secondary access road for emergency purposes.

Following the second hearing, the Planning Commission approved the subdivision, subject to Isla Verde's construction of a secondary limited-access road. The Planning Commission also recommended that Isla Verde set aside 30 percent (4 acres) of the subdivision as open space, pursuant to Camas Municipal Code (CMC) § 18.62.020,¹ and pay impact fees pursuant to CMC § 3.88.070, which provides for two separate fees for: (1) park and recreational facilities; and (2) open space.

The City Council next considered the application. The Fire Department characterized access into Dove Hill as "a very bad situation" that necessitated a secondary road. Isla Verde objected to the proposed secondary road, complaining that it would be unable to obtain the necessary easements from landowners, one of whom had already stated that she would not grant an easement for such a road. As an alternative, Isla Verde proposed a "looped road system" to ease access concerns.

Isla Verde also objected to the open space set-aside requirement. It proposed a "buy down," i.e., a payment in lieu of dedication, to make up for the shortfall in open space. It also objected to the impact fee provision as a multiple exaction because the City was requiring the dedication of land to open space or a "buydown" in addition to payment of an open space fee and a parks fee.

After initially voting to deny the application because of fire safety concerns, the City reconsidered its decision and approved the subdivision application subject to the conditions recommended by the Planning Commission. But the City's written decision imposing the secondary access road and the open space requirement did not mention the impact fees.

Isla Verde petitioned the superior court for review of the City's decision under the Land Use Petition Act (LUPA), RCW 36.70C. The trial court entered an order stating in pertinent part:

1. The Court finds the City's condition of subdivision approval requiring Petitioners to obtain a property right to provide a secondary access to Petitioners' property is a violation of substantive due process under the 14th Amendment of the U.S. Constitution and is a violation of Chapter 64.40 RCW because the condition is impossible to satisfy, is unduly burdensome on the property owner, is arbitrary and capricious and because it denies Petitioner all viable, economic uses of their property. Petitioners shall be required to submit a revised plan to ensure that it complies with any applicable code provisions.

2. The Court finds that the City's condition of subdivision approval requiring Petitioners to set aside 30% of their land as open space is an unconstitutional takings under the state constitution, and a violation of § 82.02.020 RCW and Chapter 64.40 RCW, because the City has not made an individualized determination that this condition is necessary to mitigate an impact of this development, the condition is disproportionate to any impact caused by this subdivision and because the City has not demonstrated a need for any additional open space within the city limits, whether it is 30% of Petitioners' land or otherwise, which need arises because of this development.

3. The Court finds that the City's imposition of a parks impact fee and an open space impact fee for each lot created by Petitioners violates § 82.02[ ].020 RCW, and is a violation of substantive due process if the City's capital facilities plan in effect at the time Petitioners' land use application vested shows a surplus of parks and open space.

Clerk's Papers at 650-51.

The City moved for reconsideration and for the admission of the declaration of a city planner and city planning records. This additional evidence indicated that the set-aside ordinance was based on conclusions in a 1991 land use study that 30.5 percent of potential development area contained slopes between 15 and 45 percent and forested areas, which are most likely to contain significant wildlife habitat. The trial court refused to consider the additional evidence and denied reconsideration.

I. REVIEW UNDER LUPA

Under LUPA, the superior court may grant relief from a land use decision if the petitioning party can show, among other bases, that "[t]he land use decision violates the constitutional rights of the party seeking relief." RCW 36.70C.130(1)(f). "`A decision to grant, deny or impose conditions upon a proposed plat is administrative or quasi judicial in nature.'" Snider v. Board of County Comm'rs, 85 Wash.App. 371, 375, 932 P.2d 704 (1997) (quoting Miller v. City of Port Angeles, 38 Wash.App. 904, 908, 691 P.2d 229 (1984)). In reviewing an administrative decision, the appellate court stands in the same position as the superior court. Biermann v. City of Spokane, 90 Wash.App. 816, 821, 960 P.2d 434 (1998), review denied, 137 Wash.2d 1004, 972 P.2d 466 (1999); Wilson v. Employment Sec. Dep't, 87 Wash.App. 197, 201, 940 P.2d 269 (1997). We base our review on the administrative record. Biermann, 90 Wash.App. at 821, 960 P.2d 434; Snohomish County v. State, 69 Wash.App. 655, 664, 850 P.2d 546 (1993).

We review factual findings under the substantial evidence standard and conclusions of law de novo. Biermann, 90 Wash. App. at 821, 960 P.2d 434; Wilson, 87 Wash. App. at 201-02, 940 P.2d 269. Substantial evidence exists when the evidence in the record is of sufficient quantity to persuade a fair-minded rational person of the truth of the finding. Hilltop Terrace Homeowner's Ass'n v. Island County, 126 Wash.2d 22, 34, 891 P.2d 29 (1995).

Under the substantial evidence standard, we will not substitute our judgment for that of the factfinder. Hilltop Terrace, 126 Wash.2d at 34, 891 P.2d 29. Instead, we accept the factfinder's views regarding the credibility of witnesses and the weight accorded to reasonable but competing inferences. Hilltop Terrace, 126 Wash.2d at 34, 891 P.2d 29; State ex rel. Lige & Wm. B. Dickson Co. v. County of Pierce, 65 Wash. App. 614, 618, 829 P.2d 217 (1992).

When reviewing a superior court's LUPA decision, "[o]ur review is deferential." Schofield v. Spokane County, 96 Wash.App. 581, 586, 980 P.2d 277 (1999). "We view the evidence and any reasonable inferences in the light most favorable to the party that prevailed in the highest forum exercising fact finding authority." Schofield, 96 Wash.App. at 586-87, 980 P.2d 277 (citing Davidson v. Kitsap County, 86 Wash.App. 673, 680, 937 P.2d 1309 (1997)).

II. SECONDARY ROAD

A. Substantive Due Process

The City assigns error to the trial court's finding that the secondary road requirement violated due process. In examining this contention, we apply a balancing test, asking "`(1) whether the regulation is aimed at achieving a legitimate public purpose; (2) whether it uses means that are reasonably necessary to achieve that purpose; and (3) whether it is unduly oppressive on the landowner." Sintra, Inc. v. City of Seattle, 119 Wash.2d 1, 21, 829 P.2d 765 (1992) (quoting Presbytery of Seattle v. King County, 114 Wash.2d 320, 330, 787 P.2d 907 (1990); Orion Corp. v. State, 109 Wash.2d 621, 646-47, 747 P.2d 1062 (1987); Lawton v. Steele, 152 U.S. 133, 137, 14 S.Ct. 499, 38 L.Ed. 385 (1894)).

At oral argument before this court, Isla Verde conceded that providing...