UNITED DEVELOPMENT v. City of Mill Creek, 45882-5-I.

• Decision Date: 16 April 2001
• Docket Number: No. 45882-5-I.,45882-5-I.
• Citation: 106 Wash.App. 681,26 P.3d 943
• Parties: UNITED DEVELOPMENT CORPORATION, Appellant/Cross Respondent, v. THE CITY OF MILL CREEK, Respondent/Cross Appellant.
• Court: Washington Court of Appeals

26 P.3d 943

106 Wash.App. 681

UNITED DEVELOPMENT CORPORATION, Appellant/Cross Respondent, v. THE CITY OF MILL CREEK, Respondent/Cross Appellant.

No. 45882-5-I.

Court of Appeals of Washington, Division 1.

April 16, 2001.

As Amended and Publication Ordered June 5, 2001.

Larry J. Smith, Jeffrey A. Beaver, Graham & Dunn, Seattle, for Appellant.

Stephanie E. Croll, Scott M. Missall, Seattle, for Respondent.

ELLINGTON, J.

The principal developer of Mill Creek challenges the City's imposition of mitigation fees and other conditions for a recent subdivision. We agree with the superior court that mitigation fees for impacts on traffic and public parks were justified, that the City is not required to quantify and account for the effect of private recreational facilities in determining public park impacts, and that the developer cannot be required to make improvements to a road drainage system because the subdivision will have no impact on drainage at that location. We therefore affirm the superior court in all respects.

BACKGROUND

The development in question is known as Mill Creek 23. Because United Development Corporation (UDC) claims that several of the conditions for its approval are duplicative of requirements already imposed during the long process of developing Mill Creek, we briefly review the relevant history.

In 1974, UDC began to develop Mill Creek, a master planned residential community of approximately 1,200 acres in Snohomish County. The development was governed by an agreement between UDC and the County, which specified a staged process for County approval of the development in segments consisting of sectors, divisions, and plats.

In 1981, UDC and Snohomish County entered into a road improvement agreement (1981 RIA), under which UDC would build six road projects for the County.

In 1983, the City of Mill Creek incorporated, encompassing all of the master planned development. The City assumed all the County's planning and approval responsibilities. The City formally adopted the 1974 contract and the 1981 RIA. The City also instituted its own zoning code and development regulations.

In 1985, the 1974 contract was formally amended to provide that future development approvals were subject to the city regulations then in effect:

2. The parties intend to replace the procedures, process and criteria for approval for sectors, division of development and plats set forth in the [1974] rezone contract with the relevant procedures, process and criteria set forth in city ordinance. To that extent the rezone contract is deemed amended as follows:

. . . .

C. The procedures and criteria for revisions to subdivision approvals and for new subdivision approvals shall be the same as set forth in relevant provisions of city ordinances relating to subdivision approval and as the same may hereafter be amended by the City.¹

In 1986, UDC sought and obtained both an amendment to the agreement for a revision of the 1979 Sector 6 plan, and preliminary plat approval for development of Sector 6 as Mill Creek 16. The revisions to the Sector 6 plan involved an increase in the potential residential density. The Sector 6 rezone agreement again specifically provided that further development would be subject to "all rules, regulations, ordinances and policies of the City of Mill Creek."²

Mill Creek 16 contained seven tracts intended to be further subdivided. One of the seven tracts in Mill Creek 16 was Tract 298, which later became Mill Creek 23. Final approval of the Mill Creek 16 preliminary plat specified that Tract 298 was "subject to subsequent preliminary and final plat review and approvals."³

In 1994, the City adopted its current comprehensive plan. The parks and open space element of the plan established a level of service standard for neighborhood and community park facilities (two acres of neighborhood park and five to eight acres of community park for every 1,000 persons). In 1997, the City adopted a resolution establishing new traffic mitigation formulas and an ordinance establishing formulas for deriving park mitigation fees from the impacts of new development.⁴

In 1998, UDC sought preliminary plat approval for the development of Mill Creek 23. The subdivision adds 29 single family lots and approximately 84 new residents to the City. Pursuant to the State Environmental Policy Act (SEPA)⁵ and the Mill Creek Municipal Code⁶ (MCMC), the City approved Mill Creek 23, conditioned upon UDC's payment of $39,547 in traffic mitigation fees, $33,445 in neighborhood park impact fees, and $27,801.43 in community park impact fees. The City also required UDC to make storm water drainage improvements to the road adjacent to the subdivision.

UDC appealed these mitigation requirements to the Mill Creek Planning Commission. The Commission recommended that the City Council approve the development with the conditions. UDC appealed to the City Council, which upheld the requirements.

UDC filed a further appeal in superior court under the Land Use Petition Act⁷ (LUPA). The superior court affirmed the park and traffic mitigation requirements. However, the court ruled the drainage improvements requirement not justified, finding:

UDC was required to complete Mill Creek Boulevard in 1986; that any contractual obligation was fulfilled at the time the City accepted the road; that the only justification the City would have for requiring further improvements is if the development in question impacted the road and its drainage system. And here it clearly does not.⁸

Both parties appeal.

DISCUSSION

1. LUPA Review

Under the Land Use Petition Act, relief from a land use decision may be granted if the petitioner can show, among other possible grounds, that "the land use decision is an erroneous interpretation of the law, after allowing for such deference as is due the construction of a law by a local jurisdiction with expertise."⁹ Relief may also be granted if the petitioner can show that the "decision is not supported by evidence that is substantial when viewed in light of the whole record before the court."¹⁰

When reviewing an administrative decision, we stand in the same position as the superior court.¹¹ Review is grounded in the administrative record.¹² Factual findings are considered under the substantial evidence standard, and conclusions of law are reviewed de novo.¹³ Substantial evidence exists when the evidence in the record is sufficient to persuade a fair-minded rational person of the truth of the finding.¹⁴

UDC seeks review under both the error of law standard and the substantial evidence standard. But because UDC assigns no error to the findings of the City Council, they are verities on appeal.¹⁵ We therefore review for substantial evidence only where no findings address the issue.

2. Duplicative Mitigation Requirements

Projects with a significant development horizon may be conditioned as appropriate when the actual development occurs.¹⁶ Consistent with the parties' explicit agreements and with express conditions upon previous approvals in the staged development process, the traffic and park mitigation requirements for Mill Creek 23 were imposed pursuant to the City's comprehensive plan and then-current development regulations.

UDC acknowledges that a developer may be required to mitigate the direct impacts of a development, and UDC does not challenge application of current regulations. But a developer may not be required to mitigate the same impact twice.¹⁷ UDC claims that all traffic and park impacts for Mill Creek 23 were mitigated in earlier stages of the development process.

a. Road and Traffic Impact Assessment

According to the City Council's findings,¹⁸ which UDC does not challenge, "[Mill Creek 23] is expected to generate an estimated 278 new daily vehicle trips [which] will impact intersections and road segments throughout Mill Creek."¹⁹ To this figure, the City applied its trip mitigation formula and assessed $38,553. Vehicle trips had not previously been the subject of a mitigation requirement, and UDC does not contend the formula was improperly calculated. Rather, UDC claims that at two points in the earlier stages of the development process, all traffic impacts for Mill Creek 23 were mitigated.

First, UDC relies upon language in the 1981 RIA describing its purpose: "[T]o fix and determine the entire fair share of UDC for improvements to affected road systems as a result of the Mill Creek project, and in particular the development of Sector 8 in the Mill Creek Community[.]"²⁰ UDC claims that its "entire fair share" of road improvements for the entire Mill Creek development was assessed by this agreement.

We reject this argument. The "affected road systems" addressed in the RIA were defined in the agreement, and consisted of portions of Mill Creek Road, Seattle Hill Road, and 23rd Avenue. Traffic mitigation fees for Mill Creek 23 were imposed for impacts on nine roads. Of those, only Seattle Hill Road was also considered in the 1981 RIA. The RIA required improvements only to the "[p]ortion of Seattle Hill Road within Sector 8 from north boundary to south boundary of sector 8."²¹ Mill Creek 23 is in Sector 6, not Sector 8. In addition, the 1981 RIA addressed road improvements, while Mill Creek 23 mitigation was assessed pursuant to the 1997 comprehensive plan and Resolution 97-227 establishing traffic mitigation formulas for vehicle trips. The Mill Creek 23 traffic mitigation clearly does not duplicate the RIA.

Second, UDC contends that road improvements required for the 1986 Sector 6 rezone and the preliminary plat approval of Mill Creek 16 satisfied any mitigation for traffic impacts for Mill Creek 23, because the number of total residences to be authorized in Mill Creek 23 was then known, and all traffic impacts must have been fully considered.

There are several problems with this argument. Approval of Mill Creek 16 was conditioned upon construction of the section of Mill Creek Boulevard running...