Miller v. City of Port Angeles

• Decision Date: 19 November 1984
• Docket Number: No. 6481-2-II,6481-2-II
• Citation: 691 P.2d 229,38 Wn.App. 904
• Parties: John Z. MILLER and Mary E. Miller, husband and wife, Respondents, v. The CITY OF PORT ANGELES, a municipal corporation of the State of Washington; Sam Haguewood, in his capacity as Mayor of the City of Port Angeles, Carole Broadman: Harold Buck: Dorothy Duncan: John Hordyk: Werner Quast: and Robert Polhamus, in their capacities as City Councilmen of the City of Port Angeles, Appellants.
• Court: Washington Court of Appeals

Page 904

38 Wn.App. 904

691 P.2d 229

John Z. MILLER and Mary E. Miller, husband and wife, Respondents, v. The CITY OF PORT ANGELES, a municipal corporation of the State of Washington; Sam Haguewood, in his capacity as Mayor of the City of Port Angeles, Carole Broadman: Harold Buck: Dorothy Duncan: John Hordyk: Werner Quast: and Robert Polhamus, in their capacities as City Councilmen of the City of Port Angeles, Appellants.

No. 6481-2-II.

Court of Appeals of Washington Division 2.

Nov. 19, 1984.

Review Denied March 1, 1985.

William R. Hickman, Seattle, Craig D. Knutson, City Atty., Port Angeles, for appellants.

Clyde R. Cory, Jr., Bellevue, for respondents.

WORSWICK, Acting Chief Judge.

We are called upon to decide whether the City of Port Angeles has power to impose certain conditions on a real estate development. The challenged conditions involve the improvement of two roads, one of which is outside the City. We hold the conditions valid, but that one must be clarified.

John and Mary Miller own 13.4 acres in the southern outskirts of Port Angeles. The property was annexed to the City in 1973 after the Millers and the City had entered into a contract which imposed conditions on the development of an initial 24 lots. After annexation, the Millers developed those lots for single family residences. In 1978, they submitted a preliminary plat for the development of 144 multifamily units on the rest of the property. The City determined that an Environmental Impact Statement was required. The EIS projected an additional 778 vehicle trips per weekday on adjacent roads. This would result in a 22 percent increase in traffic on Golf Course Road which runs along the west side of the property and a 360 percent increase on Melody Lane to the south. The EIS predicted that accidents would increase on these already hazardous roads. As a consequence, the City attached conditions to its approval of the plat. ¹ Condition 1.a required that the north side of Melody Lane be widened and that curbs, gutters and sidewalks be provided. Since Melody Lane was a county road, this condition was to apply only if the road was annexed to the City or the county agreed to the improvements. Condition 1.b required the Millers to contribute about $60,400 to a Golf Course Road Arterial Improvement Fund, aimed at improving a portion of that road north of the development.

The Millers brought action in Superior Court seeking a writ of review, a declaratory judgment invalidating the conditions, and damages. The writ was issued by stipulation and a return was made in due course.

Beyond that, the record is a procedural quagmire. Two different judges participated over a two-year period. Pleadings were amended, multiple motions were made and definitive rulings were announced; a year went by before one of these rulings found its way into an order. It will suffice for present purposes to note that, by summary judgment orders certified appealable under CR 54(b), ² the "trial court" held that the disputed conditions were really special assessments and were unconstitutional because they were not imposed on all property abutting the road. It also found the conditions in violation of the 1973 agreement. It held that the Melody Lane condition was ultra vires. Damage claims based on allegations of negligence and wrongful requirement of an EIS were dismissed. The Millers were allowed to pursue their damage claims for breach of contract, subject to limits as to the period of time involved. Further proceedings were stayed pending this appeal by both parties.

A multitude of issues is raised concerning the validity of the conditions, the City's right to require improvements of a county road, the effect of the 1973 agreement, and the City's exposure to liability for damages. We hold that the conditions are valid, that the City has the qualified power to require improvement of a county road, that the 1973 agreement does not--and could not--affect the City's power, and that the City is not liable for damages. However, we hold that one condition must be clarified.

At the outset, we observe that the issues raised here were properly decided by summary judgment for there are no relevant material facts in dispute. Wilson v. Steinbach, 98 Wash.2d 434, 656 P.2d 1030 (1982). This is so notwithstanding the Millers' claim that the City acted in bad faith in requiring preparation of an EIS. They argued that the City's actions stemmed from a desire to discourage the development, or at least delay it until neighborhood opposition could be organized. They base this supposition on the friendly relations between a certain City councilman and an architect who had lost the bid on the subdivision. This argument, in addition to being purely speculative, is barred by the Millers' failure to contest within the statutory 30-day time limit the threshhold determination that an EIS was required. RCW 43.21C.080; Hayden v. Port Townsend, 93 Wash.2d 870, 613 P.2d 1164 (1980); Oden Inv. Co. v. Seattle, 28 Wash.App. 161, 622 P.2d 882 (1981).

The Millers' basic position is that their development would not create any additional problems on the two roads and therefore no conditions whatever concerning roads should have been imposed. We disagree.

A decision to grant, deny or impose conditions upon a proposed plat is administrative or quasi-judicial in nature. Review is limited to determining whether it satisfies constitutional requirements and is not arbitrary and capricious. RCW 58.17.180; ³ Lechelt v. Seattle, 32 Wash.App. 831, 835, 650 P.2d 240 (1980). To succeed with their position, the Millers had to show that the City's actions were willful and unreasoning, or without consideration of or in disregard of the facts and circumstances of the case. West Hill Citizens for Controlled Dev. Density v. King Cy. Council, 29 Wash.App. 168, 627 P.2d 1002 (1981). They have not done so.

Under RCW 58.17.110, ⁴ before approving a subdivision a local government is required to make sure that appropriate provisions have been made for the public health, safety and general welfare. It must consider the adequacy of access to and within the proposed subdivision, and it is empowered to condition approval of the plat upon adequate access. Lechelt v. Seattle, supra. The information collected in the environmental review process indicated that the roads which would receive most of the traffic from the subdivision simply were not adequate to handle it. Melody Lane and Golf Course Road were already hazardous because they were narrow and had no shoulders, and because passing sight distances were restricted by the rolling terrain. The EIS predicted an increase in traffic accidents as a result of the vehicular trips generated by the project. In addition, the fire department pointed out that because the development was farther than the recommended distance from the nearest fire station, Golf Course Road would have to be widened to permit a reasonable response time. The increased traffic was also expected to increase police response time. Against this showing, the Millers presented the City Council with only the testimony of the coordinator for the EIS and of a Bellevue traffic engineer that the roads had the capacity to handle the increased traffic. However, it was also noted in the EIS that unstable flow, congestion and intolerable delay can occur well below capacity. A need for the improvements was clearly demonstrated, directly related to the traffic which would be generated by the development. The City acted reasonably to meet that need. The conditions were not arbitrary and capricious.

The Millers next contend that, because the burden of improving the roads was not imposed upon all adjacent property owners, the conditions were unconstitutional. This position is based on the argument that the conditions amounted to a tax or assessment for road improvements. We disagree.

Not all requirements for payment by a government body are taxes. Where the fees are intended primarily to regulate the development of a specific subdivision and not simply to raise revenue, they will not be considered taxes. Hillis Homes, Inc. v. Snohomish Cy., 97 Wash.2d 804, 650 P.2d 193 (1982). Widening streets and installing controls for the safety of pedestrians and vehicle traffic are regulatory measures within the proper exercise of the City's police power, and it can require that the cost of these measures be borne by those who created the need. See State ex rel. Myhre v. Spokane, 70 Wash.2d 207, 216, 422 P.2d 790 (1967); Gerla v. Tacoma, 12 Wash.App. 883, 533 P.2d 416 (1975).

The need for the improvements arose directly from the development. Moreover, the Millers were not required to pay more than their share of the cost. They were required to improve only the side of Melody Lane that abutted their property. Their contributions to the Golf Course Road Arterial Improvement Fund amounted to only 18 percent of the projected total, the remainder to be supplied from the municipal street fund, an LID composed of other abutting owners, and matching federal funds. On these facts, we fail to see how the City acted unfairly in carrying out its responsibilities under RCW 58.17.110. ⁵

The Millers also argue that the condition pertaining to Golf Course Road was unconstitutionally vague because the possibility of the improvements and the ultimate cost remained uncertain. ⁶ We are not persuaded.

Construction costs can rarely be known precisely in the planning stages and the fact that actual expenditures may vary, even substantially, from the estimates is not enough to invalidate the conditions. See Pacific Cy. v. Sherwood Pacific, Inc., 17 Wash.App. 790, 567 P.2d 642 (1977).

However, inasmuch as the Millers are being required to provide their share of the improvement costs before there is any guarantee the City will be able to raise the rest of the money, they are entitled to some assurance that if they do not get the improvements the...