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Hard File ScannedOFFICE OF THE HEARING EXAMINER CITY OF YELM REPORT AND DECISION CASE NO. APPELLANT: Appeal of Mitigated Determination of Non-Significance SUB-04-0175- YL, APP-05-0112-YL Freestone DFF Yelm II LLC, Scott Griffin SUMMARY OF REQUEST: The appellant is appealing the issuance of Mitigating Measures 2(d) of the MDNS issued for the proposed Griffin Place subdivision. SUMMARY OF DECISION: Appeal granted. PUBLIC HEARING: After reviewing Planning and Community Development Staff Report and examining available information on file with the application, the Examiner conducted a public hearing on the request as follows: The hearing was opened on June 7, 2005, at 9:00 a.m. Parties wishing to testify were sworn in by the Examiner. The following exhibits were submitted and made a part of the record as follows: EXHIBIT "1" - Planning and Community Development Staff Report and Attachments regarding preliminary plat EXHIBIT " 2" - Planning and Community Development Staff Report and Attachments regarding SEPA appeal EXHIBIT "3" - RCW excerpts TAMI MERRIMAN appeared, presented the Community Development Department Staff Report regarding the proposed preliminary plat, and testified that the site is located within -Z- the R6 zone classification. The site previously consisted of two parcels with the house on the larger tot, but a BLA changed the lot configuration. Proper notice was given. Staff has conditioned the access for corner lots and wants the fencing restored on lot 28. The City also will require hydrant locks on all new fire hydrants to prevent water theft. The project meets all City rules and regulations and the requirements of the Shoreline Management Act. GRANT BECK appeared and presented the Community Development Department Staff Report regarding the environmental appeal. The project meets all conditions with the exception of the driveway access from the existing house. The City considered the driveway access as part of the overall development. The parcel containing the house was excluded from the subdivision requirements, but the City indicated it would treat both parcels as included in the same action and imposed SEPA conditions covering both. The City expressed its willingness to take a longer term look and so required elimination of the driveway six years after the filing of the final plat. They used the six year period based upon the concurrency requirement. The house is not part of the subdivision pursuant to a series of activities taken by the applicant. SEPA can look at cumulative impacts. The house is part of the original parcel and traffic will increase upon development of the subdivision. Staff cited a number of policies within the comprehensive plan to include traffic movement. The condition is reasonable and capable of accomplishment even though the parcels are under different ownership. There was agreement between property owners during the BLA process. WILLIAM LYNN, attorney at law, appeared and introduced the appellant's case. JEAN CARR, Parametrix, appeared and testified that they have reviewed the staff report and concur with conditions of approval except those set forth in the MDNS. MR. LYNN reappeared and testified that the central fact is that no change will occur in the house. They will use the same driveway and create the same amount of traffic. If the house changed in any way, the City could justify the condition. However, it is not part of the plat and the property sold to the applicant did not include the house. The City raised the issue from day one and the applicant took the other position. He referred to the SEPA statute and the requirement for impacts of the proposal. Impacts will occur across a substantial balance of the parcel, but not the parcel on which the home is located. The action does not affect the driveway. A significant environmental impact must be disclosed in an environmental document. A finding of fact in the MDNS does not qualify as that disclosure and therefore no disclosure gives rise to the improvement. The MDNS measure is likewise not based on written policy. The policy must be set forth in a written document, and the policies cited by the City do not require shutting down a driveway. The house is not a lot within a subdivision, but is already built and creating its own impacts. If the subdivision abutted a neighbor's parcel the City couldn't require connection of the neighbor's driveway per the policy cited. Furthermore, the mitigating measure is not -2- capable of completion. The lot owner cannot access the garage from a plat road. Finally it is contrary to RCW 82.02.020 as the project consists of a plat of raw land and has nothing to do with the house parcel. He referred to the Cobb and Benchmark cases. The development did not create the driveway onto the road. It was a preexisting impact. Concerning a series of action, SEPA does recognize such, but the basis must be tied to the same act. Neither the BLA nor the subdivision affect the driveway. They have agreed to extend frontage improvements across the house property. No one spoke further in this matter and so the Examiner took the request under advisement and the hearing was concluded. NOTE: A complete record of this hearing is available in the City of Yelm Community Development Department FINDINGS, CONCLUSIONS AND DECISION: FINIIINC;S• 1. The Hearing Examiner has admitted documentary evidence into the record, heard testimony, and taken this matter under advisement. 2. Notice of the date and time of public hearing was posted on the project site, mailed to the owners of property within 300 feet of the project site, and mailed to the recipients of the Notice of Application and SEPA determination on May 23, 2005. Notice of the date and time of the public hearing was published in the Nisqually Valley News in the legal notice section on May 27, 2005. 3. By a Report and Decision of even date, the Examiner approved the applicant's preliminary plat of Griffin Place which proposes 50 single family residential lots on 17.45 acres. During environmental review for the preliminary plat, the City of Yelm environmental official identified a number of significant adverse environmental impacts related to traffic, the flood hazard zone area, temporary erosion, and schools impact. The environmental official imposed eight mitigating measures which, upon compliance, would reduce the environmental impacts below the level of a probable substantial environmental impact. The applicant agreed to comply with all mitigating measures with the exception of measure 2(d) which reads: The existing single family home may retain one driveway entrance on Middle Road, with a recorded agreement between the property owner, developer, and City that the driveway entrance be relocated to the new plat internal street no later than six years from the date of recording. The agreement shall provide for driveway removal from Middle Road and restoration to City standards. -3- The applicant timely filed an appeal of said mitigating measures on April 4, 2005. 4. In its appeal applicant asserts that the City improperly imposes the condition on an existing single family lot not a part of the plat and therefore not subject to mitigation requirements. The applicant further asserts that because the house presently exists and because it will not change its use, it creates no impacts which can be mitigated. The appellant also asserts that the single family home does not create a specific adverse environmental impact identified in an environmental document and that the City has no written policies upon which it can base its mitigation. Finally appellant asserts that the preliminary plat and lot are under separate ownership and therefore the mitigation measures are not reasonable and capable of being accomplished. 5. The City asserts that the present subdivision process consists of a series of actions by both the appellant and the property owner of the excluded lot. The City asserts that at a presubmission conference in 2004, it advised that to gain approval of a subdivision, the applicant would need to remove the driveways of the existing home. In 2004 the home was located on a ten acre parcel and the balance of the site (8.5 acres) was vacant. In July, 2004, the appellant with the operation of the homeowner submitted an application for a boundary line adjustment (BLA) which reduced the size of the lot supporting the single family dwelling to 39,198 square feet and increased the vacant parcel available for development to 17.45 acres. The City denied the BLA, but following the appellant's appeal, the Examiner approved the BLA in accordance with the decision of the Washington Supreme Court in the case of the City of Seattle v. Crispin, 149 Wn. 2d 896 (2003). The Court ruled that BLAs are exempt from the subdivision process and that RCW 58.17.040(6) does not restrict a BLA to minor boundary changes. The City designates Middle Road as a collector street which does not allow direct lot access. The City asserts that when the impacts of the proposed subdivision and exempted lot are considered together, the retention of the driveway creates a substantial adverse environmental impact. 6. The Supreme Court decision in Seattle v. Crispin, supra., exempts BLAs from the subdivision process. Thus, while the appellant adjusted property lines for two existing lots of record, such did not constitute a subdivision of the property. The property proposed for subdivision and the parcel supporting the single family residential home are separate and distinct, were not created by the BLA process, and were created at some time in the past either prior to adoption of the State Subdivision Act or in accordance with the short plat process. While the appellant could have elected to include the single family lot within the subdivision, it did not. The Examiner knows of no authority under the State Subdivision Act, the Yelm Municipal Code (YMC), or the State Environmental Policy Act (SEPA) which authorizes the City to require the appellant to combine the two lots and subdivide them as one parcel. -4- 7. Chapter 197-11 of the Washington Administrative Code (WAC) sets forth the SEPA rules. WAC 197-11-660 entitled "Substantive Authority and Mitigation" sets forth limitations on governments to condition or deny projects under SEPA. This section provides as follows: A. Any mitigation measure must be based on policies, plans, rules or regulations formally designated by the legislative body (city council). B. Mitigating measures must relate to specific adverse environmental impacts clearly identified in an environmental document and also stated in writing by the decisionmaker. C. The mitigation measures must be reasonable and capable of being accomplished. 8. The resolution of this environmental appeal turns on whether the appellant's BLA preliminary plat applications are interrelated and are being used as a means of circumventing the state and city subdivision codes. The BLA and preliminary plat applications, having occurred almost simultaneously and involving the same ownership, are obviously interrelated. However, the RCW specifically exempts the BLA from the subdivision process and Cris in, supra., specifically authorizes changes in boundaries of existing lots regardless of whether such changes are major or minor. In the present case, two lots existed prior to the BLA and two lots exist subsequent to the BLA. The applicant proposes subdivision of the larger parcel. Increasing the size of one of two lots through the BLA process for the purpose of subdivision does not circumvent the Subdivision Act. Had the site originally consisted of one lot with an existing house remaining on a plat lot, the City would have authority to terminate the access onto Middle Road and require access onto an internal plat road. However, in the present case two lots exist, and the lot not part of the subdivision may retain its own access. 8. While it is understandable that the City desires to eliminate individual accesses from collector roads, the retention of one existing driveway does not create a significant adverse environmental impact. Furthermore, conditions of approval require improvement of Middle Road to City standards across not only the plat frontage, but also the frontage of the excluded lot. Any traffic impacts caused by retention of an existing driveway are mitigated by said improvements. Appellant must also comply with all other traffic mitigation measures set forth in the MDNS to include payment of the Transportation Facility Charge. The other mitigating measures imposed in the MDNS adequately mitigate the impacts of the subdivision. The continuation of an existing access onto Middle Road for an existing single family lot maintains the status quo and does not create a significant adverse impact. -5- CONCLUSIONS: 1. The Hearing Examiner has jurisdiction to consider and decide the issues presented by this request. 2. In reviewing a procedural determination by the environmental official the Examiner is bound by the following: A. RCW 43.21 C.075(3)(d): If an agency has a procedure for appeals of agency environmental determinations made under this chapter, such procedures shall provide that procedural determinations made by the responsible official shall be entitled to substantial weight. B. WAC 197-11-680(3)(a)(6): Agencies shall provide that procedural determinations made by the responsible official shall be entitled to substantial weight. 3. The case of Hayden v. Port Townsend, 93 Wn. 2d 870 (1980), holds that the Hearing Examiner's standard of review for a SEPA is "clearly erroneous". A finding is "clearly erroneous" when although there is evidence to support it, the Examiner is left with the definite and firm conviction that the environmental official made a mistake. The burden is on the appellant to show that the environmental official's decision is clearly erroneous. 4. The appellant has shown that the environmental official improperly considered the BLA and preliminary plat applications as a process for avoiding the requirements of the subdivision code. The BLA increased the size of the parcel available for subdivision, but did nothing to increase the adverse impacts of the preexisting lot. -6- DECISION: The appeal of Freestone DFF Yelm II LLC is hereby granted and mitigation measured 2(d) is eliminated. ORDERED this 24th day of June, 2005. PHE K. CAUSSEAUX, R. Hearing Examiner TRANSMITTED this 24th day of June, 2005, to the following: APPELLANT: Freestone DFF Yelm II LLC, Scott Griffin 6820 - 20th St. E. Fife, WA 98424 ATTORNEY FOR APPELLANT: William Lynn P.O. Box 1157 Tacoma, WA 98401 OTHERS: Amy Head 8770 Tallon Lane NE Lacey, WA 98516 Jean Carr 8870 Tallon Lane NE Lacey, WA 98516 John H. Dotson 10747 Mill Road SE Yelm, WA 98597 City of Yelm Tami Merriman 105 Yelm Avenue West P.O. Box 479 Yelm, Washington 98597 -~- CASE NO.: Appeal of Mitigated Determination of Non-Significance SUB- 04-0175-YL, APP-05-0112-YL NOTICE 1. RECONSIDERATION: Any interested party or agency of record, oral or written, that disagrees with the decision of the hearing examiner may make a written request for reconsideration by the hearing examiner. Said request shall set forth specific errors relating to: A. Erroneous procedures; B. Errors of law objected to at the public hearing by the person requesting reconsideration; C. Incomplete record; D. An error in interpreting the comprehensive plan or other relevant material; or E. Newly discovered material evidence which was not available at the time of the hearing. The term "new evidence" shall mean only evidence discovered after the hearing held by the hearing examiner and shall not include evidence which was available or which could reasonably have been available and simply not presented at the hearing for whatever reason. The request must be filed no later than 4:30 p.m. on June 11, 2005 (10 days from mailing) with the Community Development Department 105 Yelm Avenue West, Yelm, 1/VA 98597. This request shall set forth the bases for reconsideration as limited by the above. -s- The hearing examiner shall review said request in light of the record and take such further action as he deems proper. The hearing examiner may request further information which shall be provided within 10 days of the request. 2. APPEAL OF EXAMINER'S DECISION: The final decision by the Examiner may be appealed to the city council, by any aggrieved person or agency of record, oral or written that disagrees with the decision of the hearing examiner, except threshold determinations (YMC 15.49.160) in accordance with Section 2.26.150 of the Yelm Municipal Code (YMC). NOTE: In an effort to avoid confusion at the time of filing a request for reconsideration, please attach this page to the request for reconsideration. -9- ~x.~ ~ ~~ G~ ~~ ~~rs WA ST 43.21C.060, Chapter supplementary--Conditioning or denial of governmental action Page 1 *36021 WEST'S REVISED CODE OF WASHINGTON UNANNOTATED TITLE 43. STATE GOVERNMENT--EXECUTIVE CHAPTER 43.21C. STATE ENVIRONMENTAL POLICY Current with all 2004 legislation 43.21C.060. Chapter supplementary-- Conditioning or denial of governmental action The policies and goals set forth in this chapter are supplementary to those set forth in existing authorizations of all branches of government of this state, including state agencies, municipal and public corporations, and counties. Any governmental action may be conditioned or denied pursuant to this chapter: PROVIDED, That such conditions or denials shall be based upon policies identified by the appropriate governmental authority and incorporated into regulations, plans, or codes which are formally designated by the agency (or appropriate legislative body, in the case of local government) as possible bases for the exercise of authority pursuant to this chapter. Such designation shall occur at the time specified by RCW 43.21C.120. Such action may be conditioned only to mitigate specific adverse environmental impacts which are identified in the environmental documents prepared under this chapter. These conditions shall be stated in writing by the decisionmaker. Mitigation measures shall be reasonable and capable of being accomplished. In order to deny a proposal under this chapter, an agency must find that: (1) The proposal would result in significant adverse impacts identified in a final or supplemental environmental impact statement prepared under this chapter; and (2) reasonable mitigation measures are insufficient to mitigate the identified impact. Except for permits and variances issued pursuant to chapter 90.58 RCW, when such a governmental action, not requiring a legislative decision, is conditioned or denied by a nonelected official of a local governmental agency, the decision shall be appealable to the legislative authority of the acting local governmental agency unless that legislative authority formally eliminates such appeals. Such appeals shall be in accordance with procedures established for such appeals by the legislative authority of the acting local governmental agency. CREDIT(S) [1983 c 117 ~ 3; 1977 ex.s. c 278 ¢ 2; 1971 ex.s. c 109 ¢ 6.J Current with all 2004 legislation © 2005 West, a Thomson business. No claim to original U.S. Govt. works. 750 P.2d 651, 50 Wn.App. 723, Unlimited v. Kitsap County, (Wash.App. Div. 2 1988) *651 750 P.2d 651 50 Wn.App. 723 Court of Appeals of Washington, Division 2. UNLIMITED, a co-ownership consisting of the following individuals: Willfred Bigott and Martha Bigott, husband and wife; Gary C. Warner and Kendra L. Warner, husband and wife, et al., Appellants, v. KITSAP COUNTY, a Washington municipal corporation; Kenneth Berg and Joan Berg, husband and wife; Shirley Carlson and John Doe Carlson, husband and wife; and Lloyd Berg and Jane Doe Berg, husband and wife, Respondents. No. 11308-2-II. March 4, 1988. Developers brought action challenging county's exaction of two property interests as condition for issuance of planned unit development permit. The Superior Court, Pierce County, William L. Brown, Jr., J., dismissed action, and developers appealed. The Court of Appeals, Worswick, J., held that: (1) county's exaction of commercial access easement to commercially land-locked parcel as condition to developer's planned unit development was invalid, and (2) requirement that developers dedicate strip of property along southern portion of its property for further extension of road as condition for issuance of planned unit development permit was invalid. Reversed. West Headnotes [1] Eminent Domain «2(1.2) Page 1 Property interest can be exacted without compensation only upon proper exercise of government police power; such power is properly exercised in zoning situations where problem to be remedied by exaction arises from development under consideration, and exaction is reasonable and for legitimate public purpose. [2] Zoning and Planning 0382.6 414 ---- 414VIII Permits, Certificates and Approvals 414VIII(A) In General 414k382.1 Maps, Plats, or Plans, Conditions and Agreements 414k382.6 Other Conditions or Agreements. (Formerly 414k382.1) County's exaction of commercial access easement to commercially land-locked parcel as condition to developer's planned unit development was invalid; there was no expectation that owners of land-locked parcel would develop property at same time as planned unit development. [3] Zoning and Planning «382.2 414 ---- 414VIII Permits, Certificates and Approvals 414VIII(A) In General 414k382.1 Maps, Plats, or Plans, Conditions and Agreements 414k382.2 Streets, Improvements, and Utilities. County's requirement that developers dedicate strip of property along southern portion of its property for further extension of road as condition for issuance of planned unit development permit was invalid, absent showing that development would make road extension necessary. *652 [50 Wn.App. 724] Joel H. Paget, Craig E. Schuman, Ryan, Swanson & Cleveland, Seattle, for appellants. 148 ---- 148I Nature, Extent, and Delegation of Reinhold P. Schuetz, Deputy Pros. Atty., Port Power Orchard, for Kitsap County. 148k2 What Constitutes a Taking; Police and Other Powers Distinguished John F. Mitchell, Anna M. Laurie, Sanchez, 148k2(1) In General; Interference with Paulson, Mitchell & Laurie, Bremerton, for Berg & Property Rights Carlson. 148k2(1.2) Relating to Zoning, Planning, or Land Use. WORSWICK, Judge. © 2004 West, a Thomson business. No claim to original U.S. Govt. works. 750 P.2d 651, 50 Wn.App. 723, Unlimited v. Kitsap County, (Wash.App. Div. 2 1988) This litigation arose out of the exaction by Kitsap County, without compensation, of two property interests as conditions for its issuance of a planned unit development permit. The owners of the proposed development, who style themselves as "Unlimited," challenged these exactions in Superior Court, and now appeal that court's dismissal by summary judgment of their petition for a writ of certiorari and their related complaint for declaratory relief and damages. We reverse, holding both exactions invalid. Unlimited owns a 1 1/2-acre parcel of land immediately northwest of the Clear Creek Road/ Randall Way intersection in Silverdale. This property is accessible from both Clear Creek Road and Randall Way. The Bergs and Carlsons own an 8.5-acre parcel of property abutting Unlimited's northern boundary; it is accessible only from Clear Creek Road and is now zoned only for residential use. In 1972, the State condemned 2 acres of the Berg/Carlson property, together with general access rights to Clear Creek Road, leaving only a 14-foot access to serve existing homes. Therefore, the Berg/Carlson property is without any access of the kind that would be necessary for commercial development. In 1977, Kitsap County adopted a comprehensive land use plan that called ultimately for the extension of Randall Way. To implement the plan, the County in early 1985 condemned a strip of property for the extension along Unlimited's southern (Randall Way) boundary. At the same time, the County decided to curve Randall Way to the [50 Wn.App. 725] south rather than extending it straight as called for by the comprehensive plan, so the condemned strip ran only from the intersection to the curve. Later in 1985, Unlimited submitted an application for a rezone and a planned unit development, intending to construct a convenience store on the eastern half of its property. Still later in 1985, the County informed Unlimited that it now planned ultimately to extend Randall Way farther west, suggesting, however, that it did not intend to condemn the necessary property. At the hearing examiner's hearing on Unlimited's application, aBerg/Carlson representative requested that the Berg/Carlson property be given a commercial access to Randall Way across Unlimited's property as a condition for approval. *653 The County's desire to obtain more of Unlimited's property for the western extension of Randall Way was also made known to the hearing examiner. The examiner recommended Page 2 approval of Unlimited's application, but did not include either exaction as a condition. The Berg/Carlson interests appealed the hearing examiner's decision to the Kitsap County Board of Commissioners. At the Board's public hearing, they argued that commercial access to their property was necessary to allow circulation of increased traffic anticipated from the future commercial development of their property and surrounding properties. The County Engineer and Public Works Department also recommended commercial access from Randall Way to the Berg/Carlson property to prevent serious traffic flow problems based on anticipated future development of the area. The Board approved Unlimited's application subject to two additional conditions: (1) that Unlimited dedicate a 50-foot public right-of--way for commercial access to Randall Way from the Berg/ Carlson property, and (2) that Unlimited dedicate a strip of property along the southern portion of its property for the future extension of Randall Way along the entire length of Unlimited's property to the west (see sketch). Unlimited would not be compensated for [50 Wn.App. 727] either dedication. The necessary short plat required by the development was approved and the planned unit development permit was issued after Unlimited agreed to these conditions under protest. TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE The arbitrary and capricious test applies to our review, and the precise issue before us is whether the Kitsap County Commissioners were arbitrary and capricious in exacting these conditions. Miller v. Port Angeles, 38 Wash.App. 904, 691 P.2d 229, review denied, 103 Wash.2d 1024 (1984); Johnson v. Mt. Vernon, 37 Wash.App. 214, 679 P.2d 405 (1984); Murphy v. Seattle, 32 Wash.App. 386, 647 P.2d 540 (1982). We hold that they were. [ 1 ] A property interest can be exacted without compensation only upon a proper exercise of government police power. Such power is properly exercised in zoning situations where the problem to be remedied by the exaction arises from the development under consideration, and the exaction is reasonable and for a legitimate public purpose. Unless these requirements are met, the exaction is an unconstitutional taking. Nollan v. California Coastal Comm'n, 493 U.S. ----, 107 S.Ct. 3141, 97 L.Ed.2d © 2004 West, a Thomson business. No claim to original U.S. Govt. works. 750 P.2d 651, 50 Wn.App. 723, Unlimited v. Kitsap County, (Wash.App. Div. 2 1988) 677 (1987); Miller v. Port Angeles, supra; Gerla v. Tacoma, 12 Wash.App. 883, 533 P.2d 416,review denied, 85 Wash.2d 1011 (1975). Cf. RCW 82.02.020; RCW 58.17.110; Kenart & Assoc. v. Skagit Cy., 37 Wash.App. 295, 680 P.2d 439,review denied, 101 Wash.2d 1021 (1984). [2] The requirement of a commercial access to serve the Berg/Carlson property does not even remotely satisfy these requirements. There is no expectation that the Berg/Carlson property is to be developed at the same time as Unlimited's development or, for that matter, any time soon. Even if there was, the exaction serves no *654. public interest, let alone a reasonable one. The public has no interest in the commercial development of the Berg/Carlson property, and it is manifestly unreasonable for Kitsap County to exact a commercial access easement to this commercially land-locked parcel as a condition to Unlimited's planned unit development. Page 3 [3] [50 Wn.App. 728] There is nothing in the record before us to show that Unlimited's development will make extension of Randall Way necessary. To the contrary, the record discloses that the County has no immediate plans for an extension. Rather, it intends to hold the exacted property until some undefined future time when Randall Way can be extended to connect with other, as yet unbuilt, roads. This uncompensated exaction, too, is invalid. Miller v. Port Angeles, supra. See also J & B Dev. Co. v. King Cy., 29 Wash.App. 942, 949, 631 P.2d 1002, (1981), affd, 100 Wash.2d 299, 669 P.2d 468 (1983). We find without merit all contentions other than those discussed in this opinion. Reversed. REED, C.J., and ALEXANDER, J., concur. © 2004 West, a Thomson business. No claim to original U.S. Govt. works. 829 P.2d 169, 64 Wn.App. 451, Cobb v. Snohomish County, (Wash.App. Div. 1 1991) *169 829 P.2d 169 64 Wn.App. 451 Court of Appeals of Washington, Division 1. Larry COBB, Robert Hale, and R/L Associates, Inc., Appellants, v. SNOHOMISH COiTNTY, Respondent. No. 24680-1-I. Nov. 4, 1991. As Amended on Denial of Reconsideration Feb. 28, 1992. Review Denied June 3, 1992. Developer brought action challenging validity of county code section requiring that developers agree to share in cost of improving road systems impacted by proposed developments as condition of preliminary plat approval. The Superior Court, Snohomish County, John F. Wilson, J., ordered county to grant developer's application for preliminary plat approval upon payment of pro rata share of proposed left turn lane. Developer appealed. The Court of Appeals, Pekelis, J., held that: (1) county code section fell within voluntary agreement exception to statute generally barring municipal corporations from requiring developers to pay fee, tax or charge; (2) word "voluntary," within meaning of voluntary agreement exception, means that developer has choice of either paying for those reasonably necessary costs which are directly attributable to developer's project or losing preliminary plat approval; (3) sole lane of traffic impacted by development would be at level of traffic service "C," rather than higher level "D," and, thus, only obligation which county could impose on developer was that developer agree not to protest formation of road improvement district; and (4) developer's request for attorney fees was premature. Reversed and remanded. Grosse, C.J., filed opinion concurring in the result. Agid, J., filed concurring and dissenting opinion. West Headnotes [ 1 ] Zoning and Planning ~ 86 Page 1 414 ---- 414II Validity of Zoning Regulations 414II(B) Regulations as to Particular Matters 414k86 Permits and Certificates. County code section requiring that developers agree to share in cost of improving road systems impacted by proposed land development projects in order to receive preliminary plat approval fell within voluntary agreement exception to statute generally barring municipal corporations from requiring developers to pay fee, tax or charge; agreements provided for in code were "voluntary" within meaning of statute, even though approval of development was conditioned upon agreement's execution. West's RCWA 82.02.020. [2J Zoning and Planning f~382.4 414 ---- 414VIII Permits, Certificates and Approvals 414VIII(A) In General 414k382.1 Maps, Plats, or Plans, Conditions and Agreements 414k382.4 Fees, Bonds, and in Lieu Payments. Developer may enter into voluntary agreement with local government to pay fee which local government has established is reasonably necessary as direct result of proposed development of plat under exception to general prohibition against local governments' imposing taxes, fees or charges on developers. West's RCWA 82.02.020. [3] Zoning and Planning «382.4 414 ---- 414VIII Permits, Certificates and Approvals 414VIII(A) In General 414k382.1 Maps, Plats, or Plans, Conditions and Agreements 414k382.4 Fees, Bonds, and in Lieu Payments. Word "voluntary," within meaning of voluntary agreement exception to general statutory bar prohibiting municipal corporations from requiring developers to pay fee, tax or charge, means that developer has choice of either paying for those reasonably necessary costs which are directly attributable to developer's project or losing preliminary plat approval. West's RCWA 82.02.020. [4] Zoning and Planning 0382.2 ©2004 West, a Thomson business. No claim to original U.S. Govt. works. 829 P.2d 169, 64 Wn.App. 451, Cobb v. Snohomish County, (Wash.App. Div. 1 1991) 414 ---- 414VIII Permits, Certificates and Approvals 414VIII(A) In General 414k382.1 Maps, Plats, or Plans, Conditions and Agreements 414k382.2 Streets, Improvements, and Utilities. Sole lane of traffic impacted by development would be at level of traffic service "C," rather than higher level "D," and, thus, only obligation which county could impose on developer under ordinance requiring developers to share in cost of improving road systems impacted by development projects was that developer agree not to protest formation of road improvement district. West's RCWA 82.02.020. [5] Zoning and Planning 0382.4 414 ---- 414VIII Permits, Certificates and Approvals 414VIII(A) In General 414k382.1 Maps, Plats, or Plans, Conditions and Agreements 414k382.4 Fees, Bonds, and in Lieu Payments. [See headnote text below] [5] Zoning and Planning X610 414 ---- 414X Judicial Review or Relief 414X(C) Scope of Review 414X(C)1 In General 414k608 Arbitrary, Capricious, or Unreasonable Action 414k610 Decisions of Boards or Officers. Under statute providing voluntary agreement exception to general prohibition barring municipalities from requiring developers to pay fee, tax or charge, it was incumbent upon county to show that required improvements were reasonably necessary to mitigate direct impact of development, and decision was reviewed under arbitrary and capricious standard. West's RCWA 82.02.020. [6] Zoning and Planning 0729 414 ---- 414X Judicial Review or Relief 414X(D) Determination 414k729 Costs. Request for attorney fees by developer, who successfully challenged application of county code Page 2 provision requiring that developers share in cost of improving road systems affected by proposed land development projects, was premature where developer reserved damages issues; on remand, if developer prevailed in action for damages and trial court in its discretion awarded attorney fees and costs, developer should also receive award of fees and costs incurred on appeal. West's RCWA 64.40.020. *170 [64 Wn.App. 452] Richard B. Sanders and Sanders Law Office, Bellevue, for appellants. Seth R. Dawson, Pros. Atty., and Evelyn Sue Tanner, Deputy Pros. Atty., Drew Nielsen and Nielsen, Nielsen & Leach, Everett, for respondent. PEKELIS, Judge. Larry Cobb, Robert Hale, and R/L Associates, Inc. (Cobb), challenge the validity of Title 26B of the Snohomish County Code (SCC) which requires that developers share in the cost of improving road systems impacted by proposed land development projects. Cobb contends that the ordinance imposes unauthorized taxes, fees or charges on developers, violates substantive due process, and effects a taking of private property without just compensation. *171 [64 Wn.App. 453] A. SCC Title 26B On May 11, 1982, the Snohomish County Council adopted a revised road ordinance, SCC Title 26B, in an effort to address those problems associated with the increasing demand placed on county roads by intensified land use and rapid population growth. Former SCC 26B.50.010. The declared purpose of the ordinance is to "ensure that public health, safety and welfare will be preserved by having adequate roads to new and existing developments by requiring all land development projects in unincorporated Snohomish county ... to pay for a proportionate share of the cost of road improvements due to such land developments." Former SCC 26B.50.020. To effectuate this purpose, the ordinance requires that developers agree to perform certain remedial measures before receiving land use approval from the County. Former SCC 26B.52.010. Developers are required, upon request, to prepare a comprehensive © 2004 West, a Thomson business. No claim to original U.S. Govt. works. 829 P.2d 169, 64 Wn.App. 451, Cobb v. Snohomish County, (Wash.App. Div. 1 1991) traffic study detailing the immediate and long-term effects of the proposed development on the level of traffic service (LOS) of the surrounding road system. (FN1) Former SCC 26B.53.030(f); see also former SCC 26B.52.010(1). The ordinance incorporates the LOS criteria outlined in the Highway Capacity Manual, a guide published by the Transportation Research Board. Former SCC 26B.51.010. The criteria are based on the unused capacity of the particular lane in question, and may range from "A" (little or no traffic delays) to "E" (very long traffic delays). Under Chapter 26B.55, developers may have to agree to contribute to certain road improvements in order to obtain project approval. In general, the greater the expected traffic delay following a project's completion, the greater the obligation[64 Wn.App. 454] imposed upon the developer. Thus, where a project will be served by a road system of LOS A or B, the developer has no obligation to make off-site road improvements. At most, the developer may be required to perform frontage road improvements or dedicate an additional right-of--way. Former SCC 26B.55.020. Where a project will be served by a road system of LOS C, the developer is obligated to agree not to protest formation of a road improvement district (RID) and also may be required to perform frontage road improvements or dedicate an additional right-of- way. Former SCC 26B.55.030. In contrast, "developers whose projects will be served by a road system which will be at level of service D following completion of the development shall incur obligations to mitigate the direct impact of said development." This is to be done by executing a valid written voluntary agreement with the county in which the developer agrees to pay a proportionate share of the cost of mitigation improvements. Former SCC 26B.55.040(1). The proposed development will not be approved until all necessary funding is committed and the project is under contract or construction. Former SCC 26B.55.040(2). B. COBB'S SUBDIVISION In December 1987, Cobb applied to the County for preliminary plat approval to subdivide a 5.07 acre parcel of property into 18 single family lots. The proposed subdivision, named "Zenith Village", was located north of 234th Street S.W. and west of State Highway 99 (SR 99). Cobb was a contract purchaser of part of the property and an agent for the owners of Page 3 the remaining portions. Pursuant to SCC 26B.53, Cobb furnished the County Department of Public Works (DPW) with a traffic study detailing, inter alia, the impacts of the subdivision on the 234th Street S.W./SR 99 intersection. The study concluded that: [t]he intersection of 234th St. S.W. and Highway 99 would operate at the C/D *172 range as indicated by the attached analysis. Traffic movements with proposed subdivision traffic all operate at LOS C. It is only those movements approaching Highway 99 from the east and Highway 99 southbound left [64 Wn.App. 455] turn movements that would operate at LOS D. The proposed subdivision would not contribute any vehicles to these movements. Although the DPW found Cobb's study generally acceptable, it took the position that the question of whether the development directly impacted traffic conditions was determined by characterization of the entire 234th Street S.W./ SR 99 intersection. Since this intersection as a whole would operate at LOS D, Cobb was asked to submit a mitigation proposal pursuant to former SCC 26B.55.040(1)(a). Cobb and the DPW entered into negotiations to determine the appropriate fee to mitigate the direct impact of the development on the intersection in question but were unable to reach an agreement on the correct formula to be applied. Thus, under former SCC 26B.55.070(2), the matter was brought before a hearing examiner to decide on the correct impact mitigation measures to be undertaken as a condition of plat approval. At the hearing the DPW claimed that because Cobb's development would result in adding vehicles to an intersection which was already at LOS D, his proportionate share should be based upon full improvement of the entire intersection. It thus asked the hearing examiner to reject Cobb's mitigation offer, which was based simply on a proportionate share of the estimated $10,000 cost of a left turn lane for the west leg of 234th/SR99 intersection, the only leg his development would directly affect. The hearing examiner found Cobb's traffic impact mitigation offer unacceptable, determining that, as the DPW contended, only full improvement of the entire intersection from LOS D to LOS B or better satisfied the mitigation requirement. Additionally, the hearing examiner noted that because the State Department of Transportation had no plans for major signalization or road improvements, Cobb's offer for the 234th Street ©2004 West, a Thomson business. No claim to original U.S. Govt. works. 829 P.2d 169, 64 Wn.App. 451, Cobb v. Snohomish County, (Wash.App. Div. 1 1991) SW/SR 99 intersection was infeasible. On appeal, the Snohomish County Council upheld the hearing examiner's decision. Cobb then brought an action in [64 Wn.App. 456] Snohomish County Superior Court, requesting that SCC Title 26B be declared invalid as an unconstitutional tax. The trial court denied Cobb's motion for declaratory relief on the grounds that its "interpretation of SCC Title 26B that the maximum exaction required from an applicant cannot exceed the pro rata cost of roadway improvements attributable to an applicant's proposed project" rendered the ordinance constitutional. The trial court ordered the County to grant Cobb's application for preliminary plat approval upon payment of his pro rata share of the proposed left turn lane. In essence, the trial court adopted Cobb's mitigation offer which the hearing examiner had rejected. The court gave Cobb the choice of paying a flat $25 fee or an exaction based on a revised calculation of Cobb's proportional share. He paid the $25 fee under protest. Cobb appeals, challenging both the validity of SCC Title 26B on its face and as applied to his request for preliminary plat approval of his proposed subdivision. II [1] Cobb contends first that SCC Title 26B is nothing more than a scheme for imposing taxes, fees, or charges on developers in violation of RCW 82.02.020. RCW 82.02.020, provides in relevant part: [N]o county, city, town, or other municipal corporation shall impose any tax, fee, or charge, either direct or indirect, on the construction or reconstruction of residential buildings, commercial buildings, industrial buildings, or on any other building or building space or appurtenance thereto, or on the development, subdivision, classification, or reclassification of land. Laws of 1982, 1st Ex. Sess., ch. 49, § 5 (effective July 1, 1982). *173 Early cases interpreting this statute focused on "whether a development fee constituted an unauthorized tax or a valid regulatory scheme, as that distinction was explained in Hillis Homes, Inc. v. Snohomish Cy., 97 Wn.2d 804, 809, 650 P.2d 193 Page 4 (1982)". R/L Associates v. Seattle, 113 Wash.2d 402, 408, 780 P.2d 838 (1989). However, as R/L [64 Wn.App. 457J Associates To view preceding link please click here makes clear, the "tax/regulation distinction" is no longer relevant because the statutory prohibition against "taxes, fees, or charges" is so all-encompassing it applies to all development fees unless specifically excepted. R/L Assocs., 113 Wash.2d at 409, 780 P.2d 838. [2] Accordingly, if SCC Title 26B required developers to pay a fee, tax, or charge even if that were specifically used for payment of off-site road improvements, it would run afoul of RCW 82.02.020. However, RCW 82.02.020 also creates an exception for "voluntary agreements ... that allow a payment in lieu of a dedication of land or to mitigate a direct impact that has been identified as a consequence of a proposed development, subdivision, or plat." (Emphasis added). In other words, a developer may enter into an agreement with local government to pay a fee which local government has established is "reasonably necessary as a direct result of the proposed development or plat." RCW 82.02.020; see also Southwick, Inc. v. Lacey, 58 Wash.App. 886, 895, 795 P.2d 712 (1990); Comment, Subdivision Exactions in Washington: The Controversy Over Imposing Fees on Developers, 59 Wash.L.Rev. 289, 298 (1984). It is apparent that Snohomish County has attempted in SCC Title 26B to comply with the "voluntary agreement" exception in RCW 82.02.020. On their face, the negotiated agreement provisions in former SCC 26B.55.040 mirror the requirements for the voluntary agreement exception within the statute. The provisions provide a scheme which allows the developer to agree to pay for its share of reasonably necessary improvements to roads directly impacted by the proposed development. See, e.g., former SCC 26B.55.040(1)(c) and (d); see also former SCC 26B.55.080. [3] Cobb asserts that the agreements provided for in former SCC 26B.55.040 are not "voluntary" within the meaning of RCW 82.02.020 because approval of the proposed development is conditioned upon the agreement's execution. We disagree. Within the context of RCW 82.02.020, the word "voluntary" means precisely that the developer has the choice of either (1) paying for those reasonably [64 Wn.App. 458] necessary costs which are directly attributable to the developer's project or (2) losing preliminary plat approval. The fact that the developer's choices may not be between perfect options does not render the © 2004 West, a Thomson business. No claim to original U.S. Govt. works. 829 P.2d 169, 64 Wn.App. 451, Cobb v. Snohomish County, (Wash.App. Div. 1 1991) agreement "involuntary" under the statute. Comment, 59 Wash.L.Rev. at 298; See generally, Settle, Washington Land Use and Environmental Law and Practice 114-115 (1983). (FN2) Moreover, Cobb does not claim that he has an absolute right to receive plat approval; he clearly does not. The county is authorized to withhold approval if appropriate provisions have not been made for the public health, safety, and general welfare. RCW 58.17.110; see also, Southwick, Inc. v. Lacey, 58 Wash.App. 886, 892-93, 795 P.2d 712 (1990); Miller v. Port Angeles, 38 Wash.App. 904, 909, 691 P.2d 229 (1984), review denied 103 Wash.2d 1024 (1985). In adopting SCC Title 26B, Snohomish County had declared that new developments have the potential of impacting traffic in such a way as to create serious health, safety and welfare problems. The purpose of former SCC 26B.55.040 is to make appropriate provisions for mitigating the direct impact of new developments on existing roads. *174 Accordingly, we conclude that the voluntary agreement scheme contemplated by SCC Title 26B is not violative of RCW 82.02.020. The ordinance properly permits voluntary agreements between developers and the county for payment of a fee to mitigate the direct impact of the traffic problems of the county. In so deciding, however, we do not reject Cobb's challenge to the specific provisions of the ordinance as applied to his proposed subdivision. Cobb correctly contends that the traffic his development would contribute, [64 Wn.App. 459] when properly calculated under the ordinance itself, does not justify application of the LOS D provisions. [4] Under the statute, it was incumbent upon the County to show that the required improvements were "reasonably necessary" to mitigate the direct impact of the development. Southwick, Inc., 58 Wash.App. at 895, 795 P.2d 712. This decision is reviewed under the arbitrary and capricious standard. Southwick, Inc., 58 Wash.App. at 895, 795 P.2d 712 (citing Pentagram Corp. v. Seattle, 28 Wash.App. 219, 228, 622 P.2d 892 (1981)). [5] Here, SCC Title 26B expressly incorporates the Highway Capacity Manual's definitions relating to traffic design, traffic flow and traffic operation. According to the manual, the LOS within an intersection relates to the unused capacity of the traffic lane in question within the intersection, not the entire intersection itself. Page 5 While Cobb's development contributed some traffic to LOS C traffic lanes, it contributed none whatsoever to the LOS D traffic lanes. The trial court apparently recognized this and thus attempted to correct the hearing examiner's error by limiting Cobb's obligation to the proportionate cost of the left turn lane of the intersection. However, the trial court's ruling is also improper. Because the lane impacted by Cobb's development would be at LOS C, not D, under former SCC 26B.55.030, the court had no authority to require mitigation at all. The only obligation which the County could impose on Cobb was that he agree not to protest the formation of a RID. Accordingly, we hold that while the mitigation scheme provided for in SCC Title 26B does not on its face violate RCW 82.02.020, both the hearing examiner's and the trial court's application of SCC Title 26B to Cobb's plat was arbitrary and capricious. Therefore, Cobb's $25 payment is to be refunded and the plat approval granted in conformance with the requirements of former SCC 26B.55.030, not .040. (FN3) [64 Wn.App. 460] III [6] Cobb has requested attorney fees on a number of grounds. Attorney fees may not be awarded in the absence of statutory authority or an applicable equitable or contract provision. Blue Sky Advocates v. State, 107 Wash.2d 112, 122, 727 P.2d 644 (1986). We conclude that the only possible ground on which he would be entitled to attorney fees here would be under RCW 64.40.020, which provides in part: (1) Owners of a property interest who have filed an application for a permit have an action for damages to obtain relief from acts of an agency which are arbitrary, capricious, unlawful, or exceed lawful authority, or relief from a failure to act within time limits established by law: Provided, That the action is unlawful or in excess of lawful authority only if the final decision of the agency was made with knowledge of its unlawfulness or that it was in excess of lawful authority, or it should reasonably have been known to have been unlawful or in excess of lawful authority. *175 (2) The prevailing party in an action brought pursuant to this chapter may be entitled to reasonable costs and attorney fees. (Emphasis added.) © 2004 West, a Thomson business. No claim to original U.S. Govt. works. 829 P.2d 169, 64 Wn.App. 451, Cobb v. Snohomish County, (Wash.App. Div. 1 1991) However, because Cobb has reserved the damages issue under this statute, his request for attorney fees is premature. On remand if Cobb prevails in his action for damages and the trial court in its discretion awards attorney fees and costs, Cobb should also receive an award of fees and costs incurred in this appeal in such sum as the trial court shall determine reasonable. Accordingly, we reverse and remand for further proceedings consistent with an interpretation of Cobb's obligations under former SCC 26B.55.030 and his claim for damages. [64 Wn.App. 461] GROSSE, Chief Judge (concurring). I concur in the result reached in the lead opinion, but write separately to state my view that it is unnecessary in this case to decide the issue of the validity of the ordinance. AGID, Judge (concurring and dissenting). While I concur in the result reached in the lead opinion with respect to the erroneous interpretation of Title 26B of the Snohomish County Code (SCC), I disagree with its conclusion that agreements under former SCC 26B.55.040 are "voluntary" agreements under RCW 82.02.020. I therefore write separately to address this issue. RCW 82.02.020 was enacted by the Legislature in 1982 as part of comprehensive legislation that included the grant of authority to certain local governments to impose additional sales and real estate transfer taxes. Along with this additional taxing authority, the Legislature imposed a prohibition of certain development fees. This amendment was the first to confront the imposition of fees as a condition to development, even though there had been other proposals before the Legislature to expand or limit municipalities' authority to impose such fees. (Citations omitted.) R/L Assocs., Inc. v. Seattle, 113 Wash.2d 402, 406-407, 780 P.2d 838 (1989). In R/L Assocs., the Supreme Court recognized that earlier cases had "resisted a literal application of RCW 82.02.020". 113 Wash.2d at 408, 780 P.2d 838. In determining that henceforth the statute must be strictly applied, the court observed that Page 6 the [earlier] cases implicitly recognized the importance of the statute as a source of local government's authority to economically burden development, but gave the statute a narrow construction and limited application. However, in the light of the Legislature's clear intent as embodied in the statute's language, and the circumstances surrounding its enactment, we fmd that such a construction is not warranted, and will apply the statute according to its plain and unambiguous terms. R/L Assocs., 113 Wash.2d at 409, 780 P.2d 838. Thus, our first task is to determine, in the context of this case, what those "plain and unambiguous terms" are. [64 Wn.App. 462J In order to properly analyze RCW 82.02.020, we must first clarify what it is and is not. It is apparent that it is not an enabling statute. It confers no authority on municipalities to impose conditions on development or charge fees in the absence of independent authority permitting the imposition of conditions for which the fee is a substitute. The statute is first and foremost a taxing statute. It begins by declaring that Except only as expressly provided in [three statutes not relevant here], the state preempts the field of imposing taxes upon [various commodities and activities]. Except as provided in RCW 82.02.050 through 82.02.090, no county, city, town, or other municipal corporation shall impose any tax, fee, or charge, either direct or induect, on the construction or reconstruction of residential buildings, commercial buildings, industrial buildings, or on any other building or building space or appurtenance thereto, or on the development, subdivision, classification, *176 or reclassification of land. However, this section does not preclude dedications of land or easements within the proposed development or plat which the county, city, town, or other municipal corporation can demonstrate are reasonably necessary as a direct result of the proposed development or plat to which the dedication of land or easement is to apply. RCW 82.02.020. As a first principle, then, the statute is a prohibition on direct or indirect taxes, fees, or charges on development activity except that on-site dedications and easements which are permitted by other statutes are not prohibited by RCW 82.02.020. © 2004 West, a Thomson business. No claim to original U.S. Govt. works. 829 P.2d 169, 64 Wn.App. 451, Cobb v. Snohomish County, (Wash.App. Div. 1 1991) While generally prohibiting what have come to be known as development fees or exactions, RCW 82.02.020 then enumerates certain exceptions which include "voluntary agreements ... that allow a payment in lieu of a dedication of land or to mitigate a direct impact that has been identified as a consequence of a proposed development, subdivision, or plat." (Emphasis added.) The voluntary agreement provisions of RCW 82.02.020 do not themselves grant authority to require developer exactions. Rather, they "allow" the local government and the developer to enter into an agreement to pay a fee as an alternative to dedicating land or complying with a mitigation requirement which that government may impose (64 Wn.App. 463] as a result of authority granted by another statute or ordinance. (FN1) The county cites us to no independent authority which would permit it to require Cobb to construct or contribute to the construction of a left turn lane at the intersection of State Highway (SR) 99 and 234th Street S.W. (FN2) Thus, the first problem with former SCC 26B.55.040 is that it exceeds the limited authority of RCW 82.02.020 by imposing "voluntary" fees as a condition of project approval where the county has no independent authority to impose a condition for off-site improvements. The ordinance simply pronounces that, where the project is found to impact roads which are at LOS D or E, the developer shall form a Road Improvement District (RID) to fund "full improvements" (FN3) or enter into a "voluntary agreement" to pay for some or all of the [64 Wn.App. 464] improvements. In the absence of independent authority to require the developer to build the improvements, the county cannot use RCW 82.02.020 as part of a bootstrap operation to supply that authority and then require payment of a fee as a substitute for construction of improvements it cannot require in the first place. The second major problem with the ordinance arises from its apparent misapprehension of the meaning of the word "voluntary" as it is used in RCW 82.02.020. As noted above, the statute *177 does not prohibit voluntary agreements with counties, cities, towns, or other municipal corporations that allow a payment in lieu of a dedication of land or to mitigate a direct impact that has been identified as a consequence of a proposed development, subdivision, or plat. The word "voluntary" is not defined in the statute. Where there is no statutory defmition, the court must Page 7 give a word its ordinary and usual meaning. State v. Standifer, 110 Wash.2d 90, 92-93, 750 P.2d 258 (1988). The word "voluntary" is defined as "proceeding from the will[;] produced in or by an act of choice ... [;] ... performed, made, or given of one's own free will ... [;] ... acting of oneself;] not constrained, impelled or influenced by another". Webster's Third New International Dictionary 2564 (1986). In order to be voluntary, an agreement must at least present the parties with a viable choice. However, under the Snohomish County ordinance at issue here, former SCC 26B.55.040, the only option given the permit applicant is to pay a fee or have the requested permit application denied. This is not a choice. It is tantamount to a contract of adhesion where, if the applicant wants the permit, there is no choice but to accept the terms that are dictated by local government officials. The permit applicant is not acting of his or her own will "not constrained [or compelled] by another" when paying a fee solely to avoid denial of the requested land use approval. [64 Wn.App. 465] This is not to say that, in the context of obtaining development permits, the statutory provision allowing voluntary developer agreements is meaningless. On the contrary, there are numerous instances in which an applicant, legitimately required under another statute to dedicate land, reduce the size of a proposed development, or take other steps to mitigate impacts, will voluntarily choose to pay a fee instead. Should the applicant determine that a dedication of land would detract from the appearance of or reduce the market for its project, it may choose to pay a fee rather than dedicate the land which the local government can legitimately require pursuant to RCW ch. 58.17. In order to mitigate impacts on an environmentally sensitive area, a developer may choose to contribute funds to additional drainage facilities or improvement of an off-site stream or wetland. Both the municipality and project applicants may agree that it is mutually beneficial for the developers to pay into a fund to purchase a large amount of open space to be developed into a park rather than accepting dedications of small areas of open space which are not amenable to such desirable improvements as ball fields, playgrounds and the like. While perhaps not entirely desirable from the applicant's viewpoint, these are true choices because the local government has clear authority to require the applicant to dedicate the land or mitigate the impact. Former SCC 26B.55.010(4) and .040 purport to © 2004 West, a Thomson business. No claim to original U.S. Govt. works. 829 P.2d 169, 64 Wn.App. 451, Cobb v. Snohomish County, (Wash.App. Div. 1 1991) allow the county, as they did in this case, to decide that the only feasible method "of accomplishing the required road work" is payment of a fee. Under such circumstances, the other "choice" provided by the ordinance, formation of an RID to fund the full cost of the improvement, becomes illusory, and the developer is left to pay the fee or face denial of its proposal. Such agreements are not "voluntary" within the meaning of RCW 82.02.020 and exceed the authority granted to the county to impose fees. Former SCC 26B.55.040 is therefore invalid on this ground as well. [64 Wn.App. 466] I recognize that another division of this court has defined "voluntary" in the context of RCW 82.02.020 in a manner that would arguably permit Snohomish County to impose fees under the statute. Southwick, Inc. v. Lacey, 58 Wash.App. 886, 795 P.2d 712 (1990). However, a review of the conditions to which Southwick was objecting in that case clearly distinguishes it from this one. In that case, the developer was objecting to requirements that it make improvements to the streets and sidewalks both on site and immediately adjacent to its expanded cemetery and funeral home complex, provide plans for and install improvements in water service to its project, increase the flow of water to the property and install sprinklers and a fire alarm system on the premises. All of these are *178 improvements to the property itself or are required to facilitate services to the project which the City of Lacey could impose pursuant to the zoning, building and fire codes already in effect. (FN4) The City neither relied upon RCW 82.02.020 for authority to impose these requirements nor authorized payment of a fee in lieu of building the required improvements. This alone distinguishes Southwick from this case because, as noted above, Snohomish County had no authority independent of RCW 82.02.020 to require Cobb to improve the intersection in question. In addition, I question the interpretation the Southwick court gave to the word "voluntary" in the statute. It relied upon the dissent in Chrobuck v. Snohomish Cy., 78 Wash.2d 858, 889, 480 P.2d 489 (1971), in which the issue was entirely different. (FNS) At issue there was the assertion that the [64 Wn.App. 467] county could not enter into a concomitant zoning agreement with a property owner because to do so would bind the county to exercise its zoning power in a particular way, thus impermissibly " 'bargaining away its regulatory police power' ". Chrobuck, 78 Wash.2d at 888, 480 P.2d 489 (quoting State ex rel. Myhre v. Spokane, 70 Wash.2d 207, 216, 422 P.2d 790 (1967)). (FN6) Page 8 The issue in Chrobuck and Myhre was whether the local government could enter into an agreement to grant a rezone without committing an ultra vires act. That is far from the issue here; i. e., whether an agreement to pay a fee to offset the cost of an off-site improvement is voluntary when the county lacks independent authority to require construction of the improvement in question. Thus, while I have no quarrel with the indices of validity of a concomitant zoning agreement set out in Chrobuck, reliance on those factors is not relevant to or persuasive in determining whether an agreement is voluntary under RCW 82.02.020. Finally, former SCC 26B.55.040 does not comply with the requirement of RCW 82.02.020 that fees, where permissible, "mitigate a direct impact that has been identified as a consequence of a proposed development". This statutory phrase reflects the Legislature's adoption of the "nexus" requirement imposed by case law on governmental exactions and conditions. Nollan v. California Coastal Comm'n, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987) Simply stated, there must be a nexus, a duect connection, "between the condition and the original purpose of the building restriction". Nollan, 483 U.S. at 837, 107 S.Ct. at 3149. Where the exaction or other condition does not mitigate an impact of the development, it [64 Wn.App. 468] is an unlawful exercise of the police power. Unlimited v. Kitsap Cy., 50 Wash.App. 723, 727, 750 P.2d 651,review denied, 111 Wash.2d 1008 (1988), cited with approval in Presbytery of Seattle v. King Cy., 114 Wash.2d 320, 336 n. 30, 787 P.2d 907, cert. denied, 498 U.S. 911, 111 S.Ct. 284, 112 L.Ed.2d 238 (1990) The Snohomish County ordinance applies to "[d]evelopers whose projects will be *179. served by a road system which will be at level of service [LOS] D following completion of the development". Where the road system itself is at LOS D, the developer is then required to "mitigate the direct impact of said development". Former SCC 26B.55.040(1). This language allows Snohomish County to impose the requirements of the ordinance whether or not the direct impact of the development causes the road system in question to be at LOS D. Exactions on this basis are not permitted by the terms of RCW 82.02.020. The statute requires that any exactions be imposed in order to mitigate an impact of the development. If the road system is LOS D with or without the project, there is no impact to be mitigated, and the nexus requirement of the statute is © 2004 West, a Thomson business. No claim to original U.S. Govt. works. 829 P.2d 169, 64 Wn.App. 451, Cobb v. Snohomish County, (Wash.App. Div. 1 1991) Page 9 not satisfied. The problem is illustrated by the facts of this case. Cobb's proposal is for 18 lots which will add 9 peak hour trips to an intersection in which the existing peak hour trips tota12,622. Its maximum impact will be to add two left-turning vehicles to a left turn lane which is now and will continue to be at LOS C. Where, as here, there is no showing that the project will contribute to a worsening of the level of service, RCW 82.02.020 does not permit imposition of fees to offset the costs of mitigation measures. There simply is no significant impact to mitigate. In summary, in the absence of another statute or ordmance permitting the county to require mitigation of the impacts of the project, a nexus between those impacts and the mitigation measures being imposed, and a true choice offered to the project proponent to pay a fee rather than construct improvements or dedicate land to satisfy the legitimate requirement that it mitigate the direct impacts of (64 Wn.App. 469] development, the county is without authority to require a developer to pay a fee. To rule otherwise is to effectively write the word "voluntary" out of RCW 82.02.020. The Supreme Court has unequivocally held that the statute must be interpreted "according to its plain and unambiguous terms", R/L Assocs., 113 Wash.2d at 409, 780 P.2d 838. This approach to the statute gives the word "voluntary" its ordinary meaning and furthers the intent of the Legislature that local government's power to exact fees from developers be limited to those circumstances in which the Legislature has affirmatively granted authority to do so. (FN1.) Former SCC 26B.51.080 defines a "road system" as: "[T]hose existing or proposed county roads (if any) which are located in the development site and/or between the development site and the nearest state highway or highways, projected to be utilized by ten percent or more of the traffic generated by the development." (FN2.) We disagree with Cobb's assertion that Ivy Club Investors Ltd. Partnership v. Kennewick, 40 Wash.App. 524, 699 P.2d 782, review denied 104 Wash.2d 1006 (1985) holds that a fee is not voluntary if the proposed development is conditioned upon its payment. Although the court characterized the park fees in that case as involuntary, it did so within the context of the Hillis Homes tax/fee test, rejected in R/L Associates. Ivy Club, 40 Wash.App. at 529, 699 P.2d 782. There is no indication that the court's characterization was based on an analysis of the voluntary agreement exception in RCW 82.02.020. (FN3.) Cobb also claims that SCC Title 26B unconstitutionally deprives him of substantive due process and effects a taking without just compensation. We have rejected Cobb's claims insofar as they are based on the assertion that SCC Title 26B is invalid on its face as a tax, fee, or charge. To the extent Cobb also asserts that former SCC 26B.55.040(2) can result in the developer having to pay more than the developer's pro rata cost if the County is unwilling to contribute fundmg, we decline to address this claim. Because our holding takes Cobb's development outside the LOS D Category, we need not and do not decide whether the LOS D requirements under former SCC 26B.55.040 are constitutional. (FN1.) For example, RCW 58.17.110(2) permits the local government to require "[d]edication of land to any public body ... as a condition of subdivision approval". Similarly, under the authority of the State Environmental Policy Act, applicants may, under circumstances dictated by the statute, be required to comply with conditions imposed by local government to "mitigate specific adverse environmental impacts" of a proposal. RCW 43.21C.060. These conditions may include reconfiguration of lots, preservation of open space, improvement of utilities and numerous other conditions for which an applicant may prefer to pay a fee for off-site mitigation measures rather than significantly change the configuration of the development. (FN2.) We note that this project was not found to require an environmental impact statement under SEPA, and no significant adverse environmental impacts associated with the roads in question were identified which would permit the county to require mitigation under RCW ch. 43.21C. Nor could fees be imposed in this case under RCW 82.02.050 et seq., which does permit local governments to require developers to pay impact fees to fmance their proportional share of "new facilities needed to serve new growth and development", RCW 82.02.050(1)(b), because that statute was not enacted until 1990. *179_ (FN3.) Of the four options under former SCC 26B.55.040(1), only one does not involve an © 2004 West, a Thomson business. No claim to original U.S. Govt. works. 829 P.2d 169, 64 Wn.App. 451, Cobb v. Snohomish County, (Wash.App. Div. 1 1991) agreement to pay a fee. Subsection (b) allows formation of an RID for "full [rather than a proportionate share] improvements" to the road or roads in question. However, an RID was clearly impossible here because SR 99 is a state road which the Department of Transportation did not want improved, and the cost of funding the entire left turn lane greatly exceeded the fee. It is also not at all clear that formation of an RID under these circumstances was feasible since Cobb's project represented such a small proportion of the properties that would have to consent to the RID. (FN4.) For example, the Uniform Building, Mechanical and Fire Codes, together with applicable code standards, which must be adopted by every municipality in Washington, RCW 19.27.031, provide independent authority to require adequate sprinkler, fire alarm and water systems. Cities of all classes are granted legislative authority to adopt ordinances to provide standards for construction and maintenance of streets, sidewalks, gutters and associated improvements on site. RCW 35.22.280 (first class cities); RCW Page 10 35.23.440 (second class cities); RCW ch. 35.70 (third class cities); RCW 35.27.370 (towns); RCW 35A.11.020 (optional municipal code cities). (FNS.) The majority in Chrobuck did not reach the issue of the validity of the concomitant zoning agreement on which the Southwick opinion is based because they reversed the rezone on other grounds. This issue was addressed only in Justice Neill's dissent. Chrobuck, 78 Wash.2d at 874, 887, 480 P.2d 489. (FN6.) A concomitant zoning agreement is a contract between the governing body of the municipality and the applicant for a rezone which conditions approval of the rezone on the agreement of the applicant to comply with conditions on its use and development of the property. Myhre, 70 Wash.2d at 209, 422 P.2d 790. The conditions agreed to must be permissible exercises of the police power authorized by statute or ordinance. Id. at 215-217, 422 P.2d 790; Besselman v. Moses Lake, 46 Wash.2d 279, 280 P.2d 689 (1955). © 2004 West, a Thomson business. No claim to original U.S. Govt. works. 49 P.3d 860, 146 Wn.2d 685, Benchmark Land Co. v. City of Battle Ground, (Wash. 2002) *860 49 P.3d 860 146 Wn.2d 685 Supreme Court of Washington, En Banc. The BENCHMARK LAND COMPANY, an Oregon limited liability company, Respondent, v. CITY OF BATTLE GROUND, Washington, a municipal corporation of the State of Washington, Petitioner. No. 70659-0. July 11, 2002. City required developer to make improvements to street adjoining development as condition to issuance of development permit. Developer brought action under Land Use Petition Act (LUPA) and sought damages. The Superior Court, Clark County, Barbara Johnson, J., did not resolve damages claims, but entered judgment for developer on LUPA claim. On remand, the Court of Appeals, 94 Wash.App. 537, 972 P.2d 944, affirmed. The Supreme Court granted city's petition for review and remanded. The Court of Appeals, 103 Wash.App. 721, 14 P.3d 172, adhered to its original decision. City filed second petition for review. The Supreme Court, Ireland, J., accepted review and held that evidence was insufficient to support city's decision requiring developer to make improvements to street. Affirrned on other grounds. Sanders, J., filed an opinion concurring in the result. West Headnotes [ 1 ] Zoning and Planning ~ 561 414 ---- 414X Judicial Review or Relief 414X(A) In General 414k561 Review in General. Judicial review of land use decisions is governed by Land Use Petition Act (LUPA). West's RCWA 36.70C.130. [2] Zoning and Planning «564 414 ---- 414X Judicial Review or Relief 414X(A) In General 414k563 Nature and Form of Remedy 414k564 Appeal. Page 1 By petitioning under Land Use Petition Act (LUPA), a party seeks judicial review by asking the superior court to exercise appellate jurisdiction. West's RCWA 36.70C.130. [3] Administrative Law and Procedure X683 15A ---- 15AV Judicial Review of Administrative Decisions 15AV(A) In General 15Ak681 Further Review 15Ak683 Scope. In reviewing an administrative decision, the Supreme Court stands in the same position as the superior court. [4] Constitutional Law f.~46(1) 92 ---- 92II Construction, Operation, and Enforcement of Constitutional Provisions 92k44 Determination of Constitutional Questions 92k46 Necessity of Determination 92k46(1) In General. Supreme Court will not reach a constitutional issue if it can decide a case on other than constitutional grounds. [5] Administrative Law and Procedure 0791 15A ---- 15AV Judicial Review of Administrative Decisions 15AV(E) Particular Questions, Review of 15Ak784 Fact Questions 15Ak791 Substantial Evidence. "Substantial evidence" is a sufficient quantity of evidence to persuade afair-minded person of the truth or correctness of the order. [6] Administrative Law and Procedure C.~749 15A ---- 15AV Judicial Review of Administrative © 2005 Thomson/West. No claim to original U.S. Govt. works. 49 P.3d 860, 146 Wn.2d 685, Benchmark Land Co. v. City of Battle Ground, (Wash. 2002) Page 2 Decisions 15AV(D) Scope of Review in General Douglas Kendall, Washington, DC, Christine 15Ak749 Presumptions. Gregoire, Atty. Gen., Roger Wynne, Asst. Atty. Gen., Seattle, amicus curiae on behalf of Assn of Wash. [See headnote text below] [6] Appeal and Error 0900 30 ---- 30XVI Review 30XVI(G) Presumptions 30k900 Nature and Extent in General. Supreme Court views inferences in a light most favorable to the party that prevailed in the highest forum exercising fact-finding authority. [7] Zoning and Planning 0382.2 414 ---- 414VIII Permits, Certificates and Approvals 414VIII(A) In General 414k382.1 Maps, Plats, or Plans, Conditions and Agreements 414k382.2 Streets, Improvements, and Utilities. Evidence was insufficient to support city's decision requiring developer to make improvements to street adjoining development as condition to issuance of development permit; street did not meet city roadway standards even before the development was proposed, and traffic studies found that the subdivision would have little to no impact on safety and operations on the section of roadway developer was required to improve. West's RCWA 36.70C.130(1)(c). *861 [146 Wn.2d 687] William D. Kamerrer, Olympia, for Petitioner. Leanne M. Bremer, Vancouver, Ronald Franz, Seattle, for Respondent. Bob Sterbank, Federal Way, amicus curiae on behalf of Wash. Assn of Wash. Attys. Brent Boger, Vancouver, Timothy Harris, Robin Rivett, Russell Brooks, Bellevue, amicus curiae on behalf of Pacific Legal Foundation. Greg Overstreet, Olympia, John Groen, Bellevue, Jodi Slavik, Olympia, amicus curiae on behalf on Building Industry Assn of Wash. Pamela Loginsky, Olympia, amicus curiae on behalf of Wash. Assn of Prosecuting Attys. Cities. IRELAND, J. The City of Battle Ground sought review of the Court of Appeals' decision that the City unconstitutionally took property belonging to Benchmark Land Company [146 Wn.2d 688] by requiring Benchmark to make improvements to an existing street bordering its proposed subdivision as a condition to approving its plat application. Finding that the City's condition for subdivision approval does not satisfy the substantial evidence standard of chapter 36.70C RCW, we hold that the City's condition is invalid as applied to Benchmark. Given the holding, it is unnecessary to reach the constitutional issue. FACTS In November 1994, Benchmark Land Company filed a preliminary plat application with the City of Battle Ground for a subdivision known as Mekose Park. Benchmark sought to develop a 20.25-acre site in the city into 56 single-family, residential lots. Melrose Park is bordered on the east by North Parkway Avenue and on the south by Onsdorff Boulevard. Benchmark initially proposed to make improvements to both North Parkway and Onsdorff, and its original plat map included entrances to Melrose Park from both streets. However, before the planning commission considered Benchmark's application, the city engineer suggested that the outlet to North Parkway be eliminated. Benchmark reconfigured its plat map accordingly, but did not remove the proposed improvements to North Parkway from the revised map. *862 The planning commission considered the proposed plat of Mekose Park in March and April 1995. At its April meeting, the commission voted to recommend approval to the city council. When the city council considered the matter on May 15, 1995, the council voted to approve the preliminary plat. Neither the planning commission nor the city council entered written findings reflecting its decision. © 2005 Thomson/West. No claim to original U.S. Govt. works. 49 P.3d 860, 146 Wn.2d 685, Benchmark Land Co. v. City of Battle Ground, (Wash. 2002) Following the city council's approval, Benchmark began development activities, including work on the street improvements to North Parkway. However, Benchmark discovered that the improvements would be more costly than anticipated. In August 1995, Benchmark rescinded its offer to make the improvements. [146 Wn.2d 689] Nonetheless, in January 1996, the city council adopted written findings of fact on its previous decision, approving the Melrose Park subdivision subject to "construction of Parkway Avenue and Onsdorff Boulevard, including half- width improvements as proposed by the applicant [Benchmark]." Clerk's Papers (CP) at 178. Thus, the City required Benchmark to improve North Parkway, which borders but has no direct access to Melrose Park. The City maintains the improvements are required by ordinance. (FN1) At issue is a code provision requiring proposed subdivisions, as a condition of plat approval, to construct half-width road improvements "to that portion of an access street which abuts the parcel being developed." Former Battle Ground Municipal Code (BGMC) 12.16.180. "Access road" is defined as "a public street providing vehicular access to the boundary of a parcel of real property being proposed for development." Former BGMC 12.16.020(A). PROCEDURAL HISTORY Benchmark brought an action in superior court under the Land Use Petition Act (LUPA), chapter 36.70C RCW, challenging the City's condition of plat approval that required Benchmark to make improvements to North Parkway. The superior court remanded the matter to the City "for consideration of whether the traffic impacts of the proposed preliminary plat of Mekose Park support a requirement of half street improvements to North Parkway Avenue." CP at 377-78. On remand, both the City and Benchmark conducted traffic studies, which were presented to the planning commission. The results of the traffic studies are summarized below. [146 Wn.2d 690] The City hired Lancaster Engineering to study traffic impacts of the proposed subdivision. Lancaster's report noted that North Parkway has one travel lane in each direction "with no curbs, paved shoulders, sidewalks, or bike paths." Page 3 CP at 488. The report found that "with the addition of site trips from the Melrose Park Subdivision, there will be adequate capacity at the intersection of Parkway and Onsdorf£" CP at 499. Lancaster found that the existing street was substandard "Parkway Avenue does not meet current safety and efficiency standards for width and lane configuration as specified by the Battle Ground Transportation Plan." Id. Lancaster concluded as follows: "Improving the roadway to meet current standards would mitigate the deficiency that would result from additional vehicular, bicycle, and pedestrian traffic due to the subdivision." Id. (emphasis added). Benchmark hired The TRANSPO Group, Inc. to study the traffic impacts caused by Mekose Park. In examining the existing streets in the vicinity of the subdivision, TRANSPO noted that "[t]he 700-foot section of NE 132nd Avenue [North Parkway] which borders the site is consistent with other sections of NE 132nd Avenue from Main Street to NE 142nd Avenue." CP at 505. TRANSPO's analysis determined that the traffic volume increase on North Parkway due to the proposed development would be approximately 1.4 percent. TRANSPO concluded as follows: "An increase of this magnitude *863 would be virtually indistinguishable to the average motorist and has no [e]ffect on overall intersection and roadway level of service." CP at 511. TRANSPO also stated that the project would have "little to no impact on safety and operations" on North Parkway. Id. TRANSPO did not find off-site improvements to be necessary as a result of Melrose Park. Nonetheless, the commission determined that the development's impacts on North Parkway justified requiring Benchmark to make the street improvements. The city council agreed at its February 1997 open meeting, and the council issued the following written decision: [146 Wn.2d 691] 1. The City of Battle Ground shall not require additional dedication of land from the applicant to widen North Parkway Avenue north of Onsdorff Boulevard.[ (FN2)] 2. Taking into consideration all of the impacts on North Parkway, the respective conclusions of the two traffic engineers and the facts submitted to the Planning Commission and reflected in the record and in the Findings of Fact of the Planning Commission, and further noted by the members of the City Council, it is reasonable and proportional to require the applicant to make standard half-street improvements to North © 2005 Thomson/West. No claim to original U.S. Govt. works. 49 P.3d 860, 146 Wn.2d 685, Benchmark Land Co. v. City of Battle Ground, (Wash. 2002) Parkway Avenue only as it fronts Melrose Park Subdivision, consisting of pavement, curbs, gutter, bike lane, sidewalk, and stormwater drainage facility, together with associated striping and signage. CP at 582 (emphasis added). Benchmark again pursued judicial review and sought damages under federal and state law. Pursuant to CR 54(b), the court allowed Benchmark to proceed with its damages claims, but entered final judgment on its LUPA claim. In its order following remand, the court ordered, adjudged, and decreed as follows: [T]hat the City has not brought forth substantial evidence of an "essential nexus" between possible impacts which may be caused by the Melrose Park Subdivision and half-street improvements to North Parkway Avenue; and ... [T]hat the City has not brought forth substantial evidence of "rough proportionality" between possible impacts which may be caused by the Melrose Park Subdivision and half-street improvements to North Parkway Avenue; and ... [T]hat the City's decision of February 6, 1997 that Benchmark be required to,inter alia, construct half-street improvements to North Parkway Avenue as a condition of approval of [146 Wn.2d 692] the Melrose Park Subdivision is not supported by substantial evidence. CP at 655-56. The City appealed. The Court of Appeals applied aNollan/Dolan analysis (FN3) "where the City requires the developer as a condition of approval to incur substantial costs improving an adjoining street." Benchmark Land Co. v. City of Battle Ground, 94 Wash.App. 537, 548, 972 P.2d 944 (1999). The court held that the City failed to show "an impact and a solution roughly proportional to the impact." Id. at 552, 972 P.2d 944. Accordingly, the court affirmed the superior court's ruling that the condition was invalid. This Court at 138 Wash.2d 1008, 989 P.2d 1140 (1999) granted the City's petition for review and remanded to the Court of Appeals for reconsideration in light of City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 119 S.Ct. 1624, 143 L.Ed.2d 882 (1999). On remand, the Court of Appeals adhered to its original decision, stating as follows: Page 4 *864 Although Del Monte Dunes defines "exactions" as "decisions conditioning approval of development on the dedication of property," ... we emphasize the similarity of exacting land and money. If the government in Nollan and Dolan had exacted money rather than land and then purchased land to solve the problems, the same questions would arise: was the money exacted for and used to solve a problem connected to the proposed development? (Nollan.) And was the amount of money exacted roughly proportional to the development's impact on the problem? (Dolan. Surely if the issues for an exaction of money are the same as for an exaction of land, the test must be the same: a showing of "nexus" and "proportionality." Benchmark, 103 Wash.App. at 727, 14 P.3d 172. [146 Wn.2d 693] The City filed its second petition for review one day late. This Court granted its motion for extension of time to file the petition and accepted review at 143 Wash.2d 1018 (2001). Amici curiae memoranda in support of the City were submitted by the Association of Washington Cities and the Washington State Association of Municipal Attorneys (jointly) and the Washington Association of Prosecuting Attorneys. Amici curiae memoranda in support of Benchmark were submitted by the Building Industry of Washington and Pacific Legal Foundation. ANALYSIS Standard of Review [1][2][3] Judicial review of land use decisions is governed by the LUPA, chapter 36.70C RCW. Girton v. City of Seattle, 97 Wash.App. 360, 362, 983 P.2d 1135 (1999). "By petitioning under LUPA, a party seeks judicial review by asking the superior court to exercise appellate jurisdiction." Sunderland Family Treatment Servs. v. City of Pasco, 107 Wash.App. 109, 117, 26 P.3d 955 (2001). When reviewing the underlying administrative decision, this Court "stands in the same position as the superior court." Wenatchee Sportsmen Assn v. Chelan County, 141 Wash.2d 169, 176, 4 P.3d 123 (2000). RCW 36.70C.130 Under RCW 36.70C.130, an appellate court may grant relief from a land use decision if the petitioner © 2005 Thomson/West. No claim to original U.S. Govt. works. 49 P.3d 860, 146 Wn.2d 685, Benchmark Land Co. v. City of Battle Ground, (Wash. 2002) carries its burden of establishing at least one of the following six standards: (a) The body or officer that made the land use decision engaged in unlawful procedure or failed to follow a prescribed process, unless the error was harmless; (b) 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; [146 Wn.2d 694] c) The land use decision is not supported by evidence that is substantial when viewed in light of the whole record before the court; (d) The land use decision is a clearly erroneous application of the law to the facts; (e) The land use decision is outside the authority or jurisdiction of the body or officer making the decision; or (f) The land use decision violates the constitutional rights of the party seeking relief. RCW 36.70C.130(1). [4] The City asserts errors by the Court of Appeals as to subsections (c) and (f). However, it is a fundamental principle that this Court will not reach a constitutional issue if it can decide a case on other than constitutional grounds. Senear v. Daily Journal- Am., 97 Wash.2d 148, 152, 641 P.2d 1180 (1982). The instant case can be fully resolved under subsection (c) of the statute. Therefore, we do not reach the constitutional issue under subsection (f). Substantial Evidence [5] Issues raised under subsection (c) challenge the sufficiency of the evidence. "[S]ubstantial evidence is 'a sufficient quantity of evidence to persuade afair- minded person of the truth or correctness of the order.' City of Redmond v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 136 *865 Wash.2d 38, 46, 959 P.2d 1091 (1998) To view preceding link please click here (quoting Callecod v. Wash. State Patrol, 84 Wash.App. 663, 673, 929 P.2d 510 (1997) )• [6] "We view inferences in a light most favorable to the party that prevailed in the highest forum Page 5 exercising fact-finding authority." Schofield v. Spokane County, 96 Wash.App. 581, 588, 980 P.2d 277 (1999). In this case, we view the record and inferences in a light most favorable to the City because the City prevailed before the city council. [7] As a condition of development approval, the City required Benchmark to incur the costs of improving streets bordering Melrose Park. The City argues that its requirement is supported by substantial evidence. We disagree. [146 Wn.2d 695] North Parkway did not meet City roadway standards even before the development was proposed. The required expenditure for street improvements was not directly related to the traffic generated by the development. See Miller v. City of Port Angeles, 38 Wash.App. 904, 910, 691 P.2d 229 (1984). Rather, the required improvements would relieve a preexisting deficiency. In addition, the traffic studies found that the subdivision would have little to no impact on safety and operations on the section of roadway Benchmark was required to improve. In its traffic report, Lancaster stated that Melrose Park "will probably not result in the generation of any school walking or biking trips on Parkway north of Onsdorff because the schools are located to the south and west of the subdivision." CP at 498. TRANSPO's traffic impact analysis notes that "[n]ew developments along NE 132nd Avenue [Parkway Avenue] have not been provided with direct driveway access to the roadway. Thus no improvements have been implemented along this section of roadway from Main Street to NE 142nd Avenue to accommodate these developments." CP at 505. "The section of site frontage along NE 132nd Avenue is not inconsistent with other sections of NE 132nd Avenue or other area roadways." CP at 511. The increase in traffic volumes on North Parkway due to Melrose Park "are far less than the typical day to day fluctuation of traffic and would be virtually indistinguishable to the average driver in the area." CP at 507. "There is no information indicating that there are any unusual safety conditions near the proposed project site that would contribute to accident occurrence." CP at 510. TRANSPO concluded that the intersection of ©2005 Thornson/West. No claim to original U.S. Govt. works. 49 P.3d 860, 146 Wn.2d 685, Benchmark Land Co. v. City of Battle Ground, (Wash. 2002) Onsdorff and Parkway is "operating at acceptable levels of service and will continue to do so with development of the proposed project." CP at 511. [146 Wn.2d 696] SUMMARY Based on the record before us, we determine that there is not substantial evidence, as required by RCW 36.70C.130(1)(c), to support the City's decision to require Benchmark to make improvements to North Parkway as a condition of development approval. Having found that the issue can be resolved on a nonconstitutional basis, we affirm the Court of Appeals' decision on alternate grounds and affirm the superior court's ruling that the City's condition is invalid under the statute. ALEXANDER, C.J., SMITH, MADSEN, BRIDGE, CHAMBERS, and OWENS, JJ., concur. JOHNSON, J., concurs in result only. SANDERS, J. (concurring). I agree with the majority that conditioning plat approval on offsite road improvements under these circumstances is unlawful. However, I write separately to articulate why I think that is the correct result. The majority rests its conclusion on the claim that conditioning plat approval on offsite road improvements is not supported by substantial evidence, a ground recognized for reversal under RCW 36.70C.130(1)(c), the Land Use Petition Act. The trial court articulated the evidentiary deficiency as the failure of the municipality to proffer substantial evidence of an "essential nexus" between the possible impacts which may be caused by the *866 subdivision and the half-street improvements to North Parkway Avenue, as well as the failure to demonstrate a "rough proportionality" between the impacts and the exaction. Majority at 863. I agree this is the evidentiary deficiency. However, I think it is also important to note exactly why it is the legal burden of the city to prove this. The Court of Appeals opinion in this proceeding articulated the view that the requirement stems from the Fifth Amendment to the [146 Wn.2d 697] United States Constitution as construed in Nollan v. California Coastal Commission, 483 U.S. 825, 834, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987) and Dolan v. City of Tigard, 512 U.S. 374, 386, 114 S.Ct. 2309, Page 6 129 L.Ed.2d 304 (1994). (FN1) Although the majority opinion does not fmd it necessary to reach the constitutional issue, choosing instead to dispose of the case on narrower state law grounds, I think it might be helpful to more precisely articulate exactly what those narrower state law grounds are. Specifically, I think RCW 82.02.020 imposes that requirement. In relevant part this statute provides: [NJo 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 .... This section does not prohibit voluntary agreements with counties, cities, towns, or other municipal corporations that allow a payment in lieu of a dedication of land or to mitigate a direct impact that has been identified as a consequence of a proposed development, subdivision, or plat .... No county, city, town, or other municipal corporation shall require any payment as part of such a voluntary agreement which the county, city, town, or other municipal corporation cannot establish is reasonably necessary as a direct result of the proposed development or plat. RCW 82.02.020 (emphasis added). The threshold question under this statute is therefore whether the required construction of offsite street improvements is a "tax, fee, or charge, either direct or indirect." We have previously recognized that a tax may be in cash or "kind." San Telmo Assocs. v. City of Seattle, 108 Wash.2d 20, 24, 735 P.2d 673 (1987). And of course the prohibition in [146 Wn.2d 698] RCW 82.02.020 includes but is broader than taxes because "whether a payment is characterized as a tax or a regulatory fee," it is prohibited unless specifically excepted. R/L Assocs., Inc. v. City of Seattle, 113 Wash.2d 402, 409, 780 P.2d 838 (1989). Considering the somewhat narrower question of whether plat approval conditioned on the payment of fees for road improvements were properly considered taxes, we expressed the view in Hillis Homes, Inc. v. Snohomish County, 97 Wash.2d 804, 808, 650 P.2d 193 (1982) that they were. We there cited with © 2005 Thomson/West. No claim to original U.S. Govt. works. 49 P.3d 860, 146 Wn.2d 685, Benchmark Land Co. v. City of Battle Ground, (Wash. 2002) approval the Oregon case of Haugen v. Gleason, 226 Or. 99, 104, 359 P.2d 108 (1961) which characterized a tax as an imposition imposed "to accomplish desired public benefits which cost money." With these principles in mind RCW 82.02.020 exempts from its otherwise broad prohibition against "any tax, fee, or charge, either direct or indirect, .... on the development, subdivision, classification, or reclassification of land" required payments which are "reasonably necessary as a direct result of the proposed development or plat." RCW 82.02.020. This is a statutory requirement to establish a nexus between the development and the problem as well as a limitation that the developer's required contribution to the solution of the problem be proportionate to his contribution to the problem itself. Of course this deficiency cannot be cured by a local ordinance which imposes a tax, fee, or charge without statutory authorization or otherwise conflicts with the general laws of the state, i.e., RCW 82.02.020. Therefore even if former Battle Ground Municipal Code 12.16.180 authorized the subject condition it would be invalidly applied to the extent its application violated RCW *867. 82.02.020 To view preceding link please click here or imposed a statutorily unauthorized tax. This ordinance does not require that result, however. Although subsection A of the ordinance purports to require a "half-width road improvement shall be constructed to the applicable standards set out in this chapter to that portion of an access street which abuts the parcel being developed, as a requirement of approval of a final plat or final short plat," [146 Wn.2d 699] subsection C of the same ordinance expressly provides "that the developer may voluntarily agree to mitigate such direct impacts in accordance with the provisions of RCW 82.02.020." This seems to be a round-about recognition that such mitigation is not Page 7 required under the ordinance absent proof that it is necessary to mitigate a "direct impact" of the development. Of course proof that these offsite road improvements are necessary because of the "direct impact" of the plat is simply absent. For these reasons I concur in the majority's result. (FN1.) The initial section of former chapter 12.16 of the Battle Ground Municipal Code states as follows: "It is the purpose of this chapter to establish minimum standards for public and private streets hereinafter constructed or improved by another as a condition of city approval of a development or by the city." Former Battle Ground Municipal Code 12.16.010. (FN2.) Benchmark's argument that the City required the developer to dedicate land in order to make street improvements is without merit. A 30-foot right-of--way over the half of North Parkway bordering Melrose Park existed before Benchmark applied for plat approval. Although Benchmark initially proposed to dedicate an additional five feet of right-of--way in order to make the half-width improvements, the city council expressly determined that Benchmark was not required to dedicate any land beyond the preexisting right-of- way to make such improvements. (FN3.) The court analyzed the regulatory takings claim under the "essential nexus" standard announced in Nollan v. Cal. Coastal Comm'n, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987) and the "rough proportionality" standard set forth in Dolan v. City of Tigard, 512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994). (FN1.) The Court of Appeals opinion on the constitutional issue has merited scholarly praise from Professor William Stoebuck. See 17 William B. Stoebuck, Washington Practice, Real Estate: Property Law § 5.5, at 25 (Supp.2001). © 2005 Thomson/West. No claim to original U.S. Govt. works. 958 P.2d 343, 91 Wn.App. 505, Burton v. Clark County, (Wash.App. Div. 2 1998) *343 958 P.2d 343 91 Wn.App. 505 Court of Appeals of Washington, Division 2. Lance BURTON, a Washington resident, Appellant, v. CLARK COUNTY, a municipal corporation; and the Board of County Commissioners, a Clark County agency, Respondent. Lance BURTON, a Washington resident, Respondent/ Cross-Appellant, v. CLARK COUNTY, a municipal corporation; and the Board of County Commissioners, a Clark County agency, Appellant/ Cross-Respondent. Nos. 20372-3-II, 21866-6-II. July 10, 1998. County conditioned approval of three-lot short plat on landowner's dedication of road right-of--way. Landowner appealed. The county hearing examiner approved the short plat without the exacted road. County appealed. The Board of County Commissioners reversed. Landowner appealed. The Superior Court, Clark County, Thomas Lodge, J., reversed the Board and reinstated the hearing examiner's order. County appealed. The Court of Appeals, Morgan, J., held that evidence did not sustain finding of rough proportionality between problems created by the proposed development and the exaction of the road, as the record was devoid of any evidence from which to infer when, if ever, the exacted road would be constructed. Affirmed. West Headnotes [1] Constitutional Law «280 92 ---- 92XII Due Process of Law 92k279 Exercise of Power of Eminent Domain 92k280 In General. Fifth Amendment's Takings Clause applies to the states through the Fourteenth Amendment's Due Process Clause. U.S.C.A. Const.Amends. 5, 14. © 2005 Thornson/West. No [2] Eminent Domain ~ 1 Page 1 148 ---- 148I Nature, Extent, and Delegation of Power 148k1 Nature and Source of Power. The government may "take" private land for public use with or without formal condemnation proceedings. U.S.C.A. Const.Amends. 5, 14. [3] Eminent Domain f~2.1 148 ---- 148I Nature, Extent, and Delegation of Power 148k2 What Constitutes a Taking; Police and Other Powers Distinguished 148k2.1 In General. (Formerly 148k2(1)) [3] Eminent Domain G°~ 2.3 148 ---- 148I Nature, Extent, and Delegation of Power 148k2 What Constitutes a Taking; Police and Other Powers Distinguished 148k2.3 Municipal Corporations and Local Government in General; Annexation of Territory. (Formerly 148k2(1)) [3] Eminent Domain X2.10(5) 148 ---- 148I Nature, Extent, and Delegation of Power 148k2 What Constitutes a Taking; Police and Other Powers Distinguished 148k2.10 Zoning, Planning, or Land Use; Building Codes 148k2.10(4) Zoning and Permits 148k2.10(5) In General. (Formerly 148k2(1)) Government may "take" private land for public use by a physical act such as invading and occupying the land, by a legislative act such as enacting a statute, ordinance or regulation, or by a quasi judicial act such as denying or conditioning a development permit. U.S.C.A. Const.Amends. 5, 14. claim to original U.S. Govt. works. 958 P.2d 343, 91 Wn.App. 505, Burton v. Clark County, (Wash.App. Div. 2 1998) [4] Eminent Domain ~. 2.1 148 ---- 148I Nature, Extent, and Delegation of Power 148k2 What Constitutes a Taking; Police and Other Powers Distinguished 148k2.1 In General. (Formerly 148k2(1)) [4] Eminent Domain 02.10(1) 148 ---- 148I Nature, Extent, and Delegation of Power 148k2 What Constitutes a Taking; Police and Other Powers Distinguished 148k2.10 Zoning, Planning, or Land Use; Building Codes 148k2.10(1) In General. (Formerly 148k2(1)) The effect of government's conduct in taking private land for public use may be to prevent the landowner, permanently or temporarily, from exclusively possessing the land, or from using the land in any economically productive way, or from using the land in some, but not all, economically productive ways. U.S.C.A. Const.Amends. 5, 14. [5] Eminent Domain X2.10(1) 148 ---- 148I Nature, Extent, and Delegation of Power 148k2 What Constitutes a Taking; Police and Other Powers Distinguished 148k2.10 Zoning, Planning, or Land Use; Building Codes 148k2.10(1) In General. (Formerly 148k2(1)) Even though the government may "take" private land with or without formal condemnation proceedings, it can justify its conduct as a proper exercise of its police power, for which just compensation is not required, if it shows that it is merely restricting, but not eliminating, the use of such land. U.S.C.A. Const.Amends. 5, 14. [6] Eminent Domain ~. 295 Page 2 148 ---- 148IV Remedies of Owners of Property; Inverse Condemnation 148k294 Evidence 148k295 Presumptions and Burden of Proof. Assuming that a claimant has shown governmental conduct that will be a taking if not justified, the government bears the burden of justifying its conduct as a proper exercise of the police power, at least when its conduct is quasi judicial in nature. U.S.C.A. Const.Amends. 5, 14. [7] Eminent Domain X2.10(7) 148 ---- 148I Nature, Extent, and Delegation of Power 148k2 What Constitutes a Taking; Police and Other Powers Distinguished 148k2.10 Zoning, Planning, or Land Use; Building Codes 148k2.10(7) Exactions and Conditions. (Formerly 148k2(1.2)) When the government conditions aland-use permit and seeks to justify its action as proper exercise of police power for which just compensation is not required, then government must identify a public problem or problems that the condition is designed to address, and if the government can identify only a private problem, or no problem at all, the government lacks a legitimate state interest or legitimate public purpose in regulating the project. U.S.C.A. Const.Amends. 5, 14. [8] Eminent Domain «2.10(7) 148 ---- 148I Nature, Extent, and Delegation of Power 148k2 What Constitutes a Taking; Police and Other Powers Distinguished 148k2.10 Zoning, Planning, or Land Use; Building Codes 148k2.10(7) Exactions and Conditions. (Formerly 148k2(1.2)) When the government conditions aland-use permit and seeks to justify its action as proper exercise of police power for which just compensation is not required, government must show that the development for which a permit is sought will create © 2005 Thomson/West. No claim to original U.S. Govt. works. ' 958 P.2d 343, 91 Wn.App. 505, Burton v. Clark County, (Wash.App. Div. 2 1998) Page 3 or exacerbate the identified public problem. U.S.C.A. Const.Amends. 5, 14. [9] Eminent Domain X2.10(7) 148 ---- 148I Nature, Extent, and Delegation of Power 148k2 What Constitutes a Taking; Police and Other Powers Distinguished 148k2.10 Zoning, Planning, or Land Use; Building Codes 148k2.10(7) Exactions and Conditions. (Formerly 148k2(1.2)) Government may not use the permitting process as a vehicle for solving public problems not created or exacerbated by any project. U.S.C.A. Const.Amends. 5, 14. [10] Eminent Domain 02.10(7) 148 ---- 148I Nature, Extent, and Delegation of Power 148k2 What Constitutes a Taking; Police and Other Powers Distinguished 148k2.10 Zoning, Planning, or Land Use; Building Codes 148k2.10(7) Exactions and Conditions. (Formerly 148k2(1.2)) When the government conditions aland-use permit and seeks to justify its action as proper exercise of police power for which just compensation is not required, government must show that its proposed condition *343 or exaction tends to solve, or at least to alleviate, the identified public problem. U.S.C.A. Const.Amends. 5, 14. [11] Eminent Domain 02.10(7) 148 ---- 148I Nature, Extent, and Delegation of Power 148k2 What Constitutes a Taking; Police and Other Powers Distinguished 148k2.10 Zoning, Planning, or Land Use; Building Codes 148k2.10(7) Exactions and Conditions. (Formerly 148k2(1.2)) Assuming that the government may sometimes rely on the future as well as the present when attempting to establish nexus and rough proportionality as to project's impact and government's proposed restrictions, then at a minimum, government may not rely on the future unless the record furnishes a basis for inferring what the foreseeable future holds. U.S.C.A. Const.Amends. 5, 14. [12] Eminent Domain «2.10(7) 148 ---- 148I Nature, Extent, and Delegation of Power 148k2 What Constitutes a Taking; Police and Other Powers Distinguished 148k2.10 Zoning, Planning, or Land Use; Building Codes 148k2.10(7) Exactions and Conditions. (Formerly 148k2(1.2)) Evidence established reasonable relationship between problems created by proposed three-lot residential development and county's conditions on approval of short plat, as element for establishing proper exercise of police power for which just compensation was not required; county sought dedication of road right-of--way so county could connect two dead-end roads, county identified as problems traffic circulation, traffic congestion, and emergency vehicle access, and proposed development would exacerbate those problems by adding about 30 vehicle trips per day on neighborhood roads. U.S.C.A. Const.Amends. 5, 14. [13] Eminent Domain «2.10(7) 148 ---- 148I Nature, Extent, and Delegation of Power 148k2 What Constitutes a Taking; Police and Other Powers Distinguished 148k2.10 Zoning, Planning, or Land Use; Building Codes 148k2.10(7) Exactions and Conditions. (Formerly 148k2(1.2)) Evidence did not sustain finding of rough proportionality between problems created by proposed three-lot residential development and county's conditions on approval of short plat, as element for establishing proper exercise of police power for which just compensation was not required; © 2005 Thomson/West. No claim to original U.S. Govt. works. 958 P.2d 343, 91 Wn.App. 505, Burton v. Clark County, (Wash.App. Div. 2 1998) county sought dedication of road right-of--way so county could address traffic circulation, traffic congestion, and emergency vehicle access, but record was devoid of any evidence from which to infer when, if ever, the exacted road would be constructed, so that it was uncertain whether problems would ever be addressed. U.S.C.A. Const.Amends. 5, 14. [14] Eminent Domain «316 148 ---- 148IV Remedies of Owners of Property; Inverse Condemnation 148k316 Costs. Claimant was not entitled to award of attorney fees in eminent domain proceeding, though claimant argued for damages and attorney fees in a trial brief, as claimant never alleged a claim for damages or attorney fees in any of his pleadings and the trial court declined to consider the argument raised in claimant's trial brief. [ 15 ] Certiorari G~ 3 73 ---- 73I Nature and Grounds 73k3 Availability of Relief in Original Proceeding. [See headnote text below] [ 15] Certiorari Ga 71 73 ---- 73II Proceedings and Determination 73k71 Costs. In action seeking writ of certiorari, superior court may not entertain a claim for damages or attorney fees that the tribunal below lacked jurisdiction to award. *345 [91 Wn.App. 508] Mark Alan Erikson, Vancouver, for Appellant/Cross-Respondent. Christopher Horne, Clarke Co. Deputy Pros. Atty., Vancouver, for Respondent/Cross-Appellant. MORGAN, Judge. Clark County (the County) conditioned its approval of a three-lot short plat on the landowner's dedicating a right-of--way and building a road, curbs and sidewalks. The landowner objected. The resulting Page 4 issue is whether the condition is a taking of private property without just compensation, or a proper exercise of the county's police power. Lance Burton owns a small parcel of land in unincorporated Clark County. It is 0.78 acre in area and trapezoidal in shape. It is zoned for residential lots of not less than 6,000 square feet each. Its boundaries are 305 feet long on the west; 100 feet on the north; 233 feet on the east; and 125 feet on the south. It adjoins a subdivision on the west; another subdivision on the north; a parcel of raw land on the east; and high- *346 voltage electrical transmission lines on the south. The undeveloped parcel to the east is owned by one Maddux, but the record shows little else about it. Two nearby streets are Northeast 65th Street and Northeast 20th Avenue. Northeast 65th Street generally runs east and west. Its eastern end deadends into Burton's western boundary, forming what the county considers to be a temporary cul-de- sac. Northeast 20th Avenue generally runs north and south. Its southern end deadends into the northern boundary of Maddux's parcel, a few feet east of Burton's northeast corner. Since the mid-1980's, county [91 Wn.App. 509] planners have wanted to connect the two roads by extending them across Burton's property, and also across the northwest corner of Maddux's property. (FN1) Figure 1 illustrates the area. TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE *347 [91 Wn.App. 510] On May 5, 1994, Burton applied to short plat his parcel into three wedge- shaped residential lots. He proposed that each lot open onto the cul-de-sac at the east end of Northeast 65th Street. He did not want to dedicate right-of--way or build a road. Figure 2 illustrates his plan. TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE *348 Before Burton submitted his application, he and the County informally discussed whether he would be required to connect Northeast 65th and Northeast 20th, and the effect such a connection would have on the lots he desired to create. The County suggested a reconfiguration, shown in Figure 3, that would give him three lots with the minimum 6,000 square feet each, yet still connect Northeast © 2005 Thomson/West. No claim to original U.S. Govt. works. 958 P.2d 343, 91 Wn.App. 505, Burton v. Clark County, (Wash.App. Div. 2 1998) 65th with Northeast 20th: TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE [91 Wn.App. 511) Burton rejected this reconfiguration, in part because he thought the two southern lots would be smaller than other lots in the neighborhood, and thus hard to sell. On June 28, 1994, the county planning director recommended approval of Burton's application--but only if Burton would extend Northeast 65th Street across his property by dedicating aright-of--way and installing a road, curbs and sidewalks. (FN2) The planning director stated: 2. Before approval of the final plat, and except to the extent modified by the Director of Public Works or other duly authorized public official pursuant to law, the applicant shall make the following road dedications and improvements: [91 Wn.App. 512] a. A 50 foot wide right-of--way shall be dedicated to the County through the site for the extension of N.E. 65th Street. This right-of--way shall be surveyed and designed to eventually connect with N.E. 20th Avenue. b. N.E. 65th Street shall be built through the site with a 32 foot wide paved surface with curbs and sidewalks. c. Plans and profiles shall be prepared by an engineer, licensed in the State of Washington, and submitted to the County for approval prior to road construction.[ (FN3)] *349 Hereafter, we refer to these requirements as "the exacted road." Burton appealed to the county hearing examiner who, on September 22, 1994, found an "essential nexus" between the exacted road and the county's need for "street connectivity." The examiner said: The connectivity of streets is a legitimate County interest. Connectivity increases public safety by providing alternative means for access and egress. Connectivity also reduces trip distances and thereby helps reduce pollution, Page 5 makes it easier for pedestrians and bicyclists to go from one point to another more directly, and provides for less isolation between neighborhoods. Therefore, there is an essential nexus between this street exaction and the need for street connectivity within the County, and in particular, within this area.[ (FN4)] The hearing examiner also found that the exacted road was roughly proportional to Burton's development, because it was "the minimum necessary to allow the local street to go through." (FNS) The examiner said: ... [T]he nature of this street dedication and improvement requirement is roughly proportional to the proposed three lot residential development because each of the three lots will directly benefit from the road. Residents will have better emergency access and police and fire safety will therefore be enhanced. Furthermore, this connection will reduce trip distances[91 Wn.App. 513] because residents will now be able to travel north along 20th Avenue to reach 68th Street, instead of having to go west along N.E. 65th Street in order to access N.E. 68th Street. The exaction is roughly proportional in scope to the proposed three lot partition because the road extension is the minimum necessary to allow the local street to go through. The County is merely requesting the extension of one local street directly through [the] property. This will serve the site and provide a connection for future development to the east. The County is not asking for multiple road connections, nor are they asking for the connection to occur in an indirect manner. (FN6) Concluding that the county had made an "individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development," (FN7) the examiner upheld the exaction of the road. Burton appealed to the Board of County Commissioners, which affirmed. Burton then appealed again to the superior court, which ruled that the county had "failed to make an individualized determination that [the exacted road] related both in nature and extent to the impacts from the proposed development, as required to demonstrate 'rough proportionality' under the holding in Dolan v. City of Tigard, 512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994)." (FN8) The court concluded that the exacted road was an unconstitutional taking of private © 2005 Thomson/West. No claim to original U.S. Govt. works. 958 P.2d 343, 91 Wn.App. 505, Burton v. Clark County, (Wash.App. Div. 2 1998) Pa e 6 g property; that the road-related conditions should be the public as a whole." (FN12) It applies to the "reversed and deleted" from the plat; and that the States through the Fourteenth Amendment's Due case should be "remanded for proceedings and Process Clause. (FN13) determination consistent with this [o]rder." (FN9) *350 The parties then returned to the hearing examiner. He [91 Wn.App. 514] held more hearings, during which the county presented a new staff report, dated April 16, 1996, asserting that Burton's proposed development would generate an additional thirty auto trips per day on nearby roads. On July 31, 1996, the examiner held that "a court of law ... has found that the proposed dedication and improvement required by the County road standards is not roughly proportional to the impact caused by the development," and that [p]lanning staffs additional analysis submitted during the remand merely demonstrates that the proposed street extension would not be dissimilar or disproportionate to the cost of improvements required to serve similarly sized lots in other subdivisions in the neighborhood. This is not the relevant comparison for purposes of the rough proportionality test in Dolan. The comparison under Dolan must be between the impacts caused by the proposed development and the nature and extent of exaction that is being imposed. For this reason, the Hearings Examiner reject[s] staffs supplemental findings because they fail to justify [the exacted road].[ (FN10)] Based on these holdings, the hearing examiner entered an order approving Burton's short plat without the exacted road. The County appealed to the Board of County Commissioners, which reversed the examiner's order and re-exacted the road. Burton then appealed a second time to the superior court, which reversed the Board and reinstated the examiner's order approving the plat without the exacted road. [91 Wn.App. 515] I. [1] The main issue is whether the federal Takings Clause prohibits the County from exacting a road without just compensation. The Takings Clause appears in the Fifth Amendment to the United States Constitution. It provides that private property shall not be taken for public use without just compensation. (FN11) Its purpose is "to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by [2][3][4] The government may "take" private land (FN14) for public use with or without formal condemnation proceedings. (FN15) The nature of its conduct may be a physical act such as invading and occupying the land; (FN16) a legislative *351 act such [91 Wn.App. 516] as enacting a statute, ordinance or regulation; (FN17) or a quasi judicial act such as denying or conditioning a development permit. (FN18) The effect of its conduct may be to prevent the landowner, permanently or temporarily, (FN19) from exclusively possessing the land; (FN20) from using the land in any economically productive way; (FN21) or from using the land in some, but not all, economically productive ways. (FN22) At present, it appears that the party claiming a taking has the burden of showing governmental conduct that will constitute a taking, if not justified as a valid exercise of the police power. (FN23) [5][6] Even though the Government may "take" private land with or without formal condemnation proceedings, it can justify its conduct as a proper exercise of its police power, if it shows that it is merely restricting, but not eliminating, the use of such land. (FN24) As the United States Supreme Court [91 Wn.App. 517] has stated, "[A]ll property in this country is held under the implied obligation that the owner's use of it shall not be injurious to the community [citation omitted], and the Takings Clause [does] not transform that principle to one that requires compensation whenever the State asserts its power to enforce it." (FN25) As the Nebraska Supreme Court has similarly stated, "In the exercise of the police power, public authority is empowered to require everyone so to use and enjoy his own property as not to interfere with the general welfare of the community in which he lives." (FN26) Assuming that a claimant has shown governmental conduct that will be a taking if not justified, the government bears *352 the burden of justifying its conduct as a proper exercise of the police power, at least when its conduct is quasi judicial in nature. (FN27) In two recent cases, the United States Supreme Court has considered whether governmental conduct was a proper exercise of the police power. In the first case, Nollan v. California Coastal Commission, (FN28) [91 Wn.App. 518] the Nollans acquired a California oceanfront lot located between Faria County Park, a public beach to the north, and the Cove, a public beach to the south. The lot was © 2005 Thomson/West. No claim to original U.S. Govt. works. 958 P.2d 343, 91 Wn.App. 505, Burton v. Clark County, (Wash.App. Div. 2 1998) divided into two parts by an eight-foot-high seawall; its upland part was bounded by a road on the east and the seawall on the west, while its beach part was bounded by the seawall on the east and the Pacific Ocean on the west. The lot's upland part was the site of a dilapidated bungalow, which the Nollans wanted to replace with a modern three bedroom house. When they sought the necessary permit, however, the California Coastal Commission required that they dedicate an easement for public use across the beach part of their lot. The purpose of the easement, according to the initial report of the Commission's staff, was to "make it easier for the public to get to Faria County Park and the Cove." (FN29) The Nollans appealed to the superior court, arguing that they could not be forced to dedicate a public easement along the beach, "absent evidence that their proposed development would have a direct adverse impact on public access to the beach." (FN30) Agreeing, the superior court remanded for a hearing on that issue. On remand, the Commission found that "the new house would increase blockage of the view of the ocean" from the street; that the new house would "prevent the public 'psychologically ... from realizing a stretch of coastline exists nearby that they have every right to visit;' "and that the new house would "burden the public's ability to traverse to and along the shorefront." Based on these fmdings, the Commission concluded that it could and should exact from the Nollans, without compensation, "additional lateral access to the public beaches in the form of an easement across their property." (FN31) The Nollans appealed through the state court system [91 Wn.App. 519] and ultimately to the United States Supreme Court. That Court found no "essential nexus" between the exacted easement and any public problem created or exacerbated by the new house. Thus, it concluded that the Commission could not exact the easement without compensation. In the other case, Dolan v. City of Tigard, (FN32) Dolan operated a 9,700 square-foot store with a gravel parking lot. The store was located on 1.67 acres in the central business district of Tigard, Oregon. A creek traversed the site's southwest corner and western boundary. Dolan applied for a permit to double the size of her store, pave a 39-space parking lot, and build another commercial building for rental to complementary businesses. The city refused the necessary permits unless Dolan would dedicate (a) the creek's floodplain for use as a drainage and flood control area; (b) the creek's floodplain for use as a public recreational area; and (c) "an additional Page 7 15-foot strip of land adjacent to the floodplain as a pedestrian bicycle pathway." (FN33) Dolan appealed, claiming "that the city ... has not identified any 'special quantifiable burdens' created by her new store that would justify the particular dedications required from her which are not required from the public at large." (FN34) After various proceedings in the state court system, the case reached the United States Supreme Court. That Court posed *353 the question, "[W]hat is the required degree of connection between the exactions imposed by the cityand the projected impacts of the proposed development." (FN35) It then answered by saying: We think the "reasonable relationship" test adopted by a majority of the state courts is closer to the federal constitutional norm than either of those previously discussed. But we do not adopt it as such, partly because the term "reasonable relationship" seems confusingly similar to the term "rational [91 Wn.App. 520] basis" which describes the minimal level of scrutiny under the Equal Protection Clause of the Fourteenth Amendment. We think a term such as "rough proportionality" best encapsulates what we hold to be the requirement of the Fifth Amendment. No precise mathematical calculation is required, but the city must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development.[ (FN36)] Applying this answer, the Court upheld as a valid exercise of the police power the floodplain easement for purposes of drainage and flood control. It struck, as not "roughly proportional," the floodplain easement for purposes of public recreation and the additional 15-foot easement for apedestrian-bike path. [7] In our view, Nollan, Dolan, and their Washington progeny stand for at least four propositions. First, when the government conditions a land-use permit, it must identify a public problem or problems that the condition is designed to address. If the government can identify only a private problem, or no problem at all, the government lacks a "legitimate state interest" or "legitimate public purpose[ ]" in regulating the project. (FN37) Thus, the Nollan Court characterized a "condition for abridgement of property rights through the police power" as "a 'substantial advanc[ing]' of a legitimate state interest." (FN38) The Dolan Court said that to ©2005 Thomson/West. No claim to original U.S. Govt. works. 958 P.2d 343, 91 Wn.App. 505, Burton v. Clark County, (Wash.App. Div. 2 1998) evaluate Dolan's takings claim, it had to "determine whether the 'essential nexus' exists between the 'legitimate state interest' and the permit condition [91 Wn.App. 521] exacted by the city." (FN39) And this court previously said, about an easement exacted solely to allow the commercial development of private land: [T]he exaction serves no public interest, let alone a reasonable one. The public has no interest in the commercial development of the Berg/Carlson property, and it is manifestly unreasonable for Kitsap County to exact a commercial access easement to this commercially land-locked parcel....[[ (FN40)] [8][9] Second, the government must show that the development for which a permit is sought will create or exacerbate the identified public problem. (FN41) This is the same as to say that there must be a relationship ("nexus") between the development and the identified public problem; that the necessary relationship will exist if the development will create or exacerbate the identified problem; but that the necessary relationship will not exist if the development will not adversely impact the identified public problem. Thus, the Nollan Court rejected an easement that would have improved public access to the *354 beach, even though the Commission's staff report said improved public access was needed, because the Nollans' project, replacing a bungalow with a new house, would not make the identified public problem, lack of public access, any worse than before. (FN42) Similarly, the Dolan court rejected Tigard's exaction of a floodplain easement that would have enhanced the public's recreational opportunities, even though such opportunities were needed, because Dolan's project, a larger retail outlet, [91 Wn.App. 522] would not make the identified public problem, the public's lack of recreational opportunities, any worse than before. (FN43) These holdings are consistent with the fundamental purpose of the Takings Clause, which is not to bar government from requiring a developer to deal with problems of the developer's own making, but which is "to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." (FN44) [ 10] Third, the government must show that its proposed condition or exaction (which in plain terms is just the government's proposed solution to the identified public problem) tends to solve, or at least to alleviate, the identified public problem. In other words, the government must show a relationship Page 8 ("nexus") between the proposed solution and the identified problem, and such relationship cannot exist unless the proposed solution has a tendency to solve or alleviate the identified problem. Thus, the Nollan Court rejected the exaction of an easement along the beach, even though the Nollans' new house would exacerbate the inability of passersby to see the ocean from the road, because allowing people to walk on the beach had no tendency to restore the view from the road. Interestingly, however, the Nollan Court would have allowed the exaction of "a viewing spot on their property for passersby with whose sighting of the ocean their new house would interfere," (FN45) because an exaction of that type would have tended to restore the view from the road. The Dolan Court likewise rejected the [91 Wn.App. 523] exaction of an easement for apedestrian/bike path, because the fact-finding administrative tribunal had failed to fmd that such an easement would have (as opposed to could have) a tendency to solve or alleviate traffic congestion. Both cases represent the idea that government acts arbitrarily and irrationally, and thus outside the scope of its police power, when it mandates a solution (i.e., a condition or exaction) that has no tendency to solve the identified problem. (FN46) Fourth, the government must show that its proposed solution to the identified public problem is "roughly proportional" to that part of the problem that is created or exacerbated by the landowner's development. Thus, as already seen, the Dolan Court *355 posed the question, "[W]hat is the required degree of connection between [1] the exactions imposed by the city and [2] the projected impacts of the proposed development." (FN47) It answered by saying that the required connection was a "reasonable relationship" best described by the term "rough proportionality," and that the government "must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development." (FN48) The Washington Supreme Court ruled similarly in Sparks v. Douglas County, (FN49) where it noted that a regulatory exaction must be "reasonably calculated to prevent, or compensate for, adverse public impacts of the proposed development ." (FN50) The purpose, once again, is "to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be [91 Wn.App. 524] borne by the public as a whole," (FN51) while at the same time leaving government free to require a developer to rectify public problems insofar as the developer has created such problems. © 2005 Thomson/West. No claim to original U.S. Govt. works. 958 P.2d 343, 91 Wn.App. 505, Burton v. Clark County, (Wash.App. Div. 2 1998) When combined, these four propositions boil down to two relationships: a relationship between the project and the identified public problem, and a relationship between the identified public problem and the proposed solution to that problem. The required relationship between project and problem is shown by establishing the first and second propositions set forth above, while the required relationship between problem and solution is shown by establishing the third and fourth propositions set forth above. The ultimate goal is to show that the proposed condition or exaction (i.e., the proposed solution to an identified public problem) is reasonably related to all or part of an identified public problem that arises from (i.e., is created or exacerbated by) the development project. Unless the government makes this showing, it lacks a "legitimate state interest" or a "legitimate public purpose" in imposing the condition or exaction. [11] We assume that the government may sometimes rely on the future as well as the present when attempting to establish these relationships. (FN52) At a minimum, however, it may not rely on the future unless the record furnishes a basis [91 Wn.App. 525] for inferring what the foreseeable future holds. (FN53) Thus, in Unlimited v. Kitsap County, (FN54) where the county wanted to exact an easement in favor of a parcel known as the Berg/ Carslon property, we rejected the exaction because the county "intends to hold the exacted property until some undefined future time when Randall Way can be extended to connect with other, as yet unbuilt, roads," (FN55) and because "[t]here is no expectation that the Berg/Carlson property is to be developed at the same time as Unlimited's development, or, for that matter, any time soon." (FN56) And in Simpson v. North Platte, (FN57) a case cited in Dolan, the Nebraska *356 Supreme Court rejected a similar exaction. The Simpson landowners wanted to construct afast-food restaurant, but the city would not issue the necessary permits unless they dedicated a right of way through their land. "[N]one of the real estate for [the road] ha[d] been acquired by the City nor [was] there any indication as to when, if ever, such real estate [would] be acquired by the City." (FN58) Rejecting the easement, the court stated: [N]o project was immediately contemplated whereby the street would be constructed nor is there any evidence regarding what the particular project would involve. Furthermore, there is no evidence to indicate that the construction of the project ... would create such additional traffic as to require going forward with the proposed street Page 9 project. As the evidence indicates, no other adjacent property owner would be required to dedicate any land for a public street unless a building permit is sought, nor would any other land now be acquired for a public street in the area. It is difficult, if not impossible, to see how this is [91 Wn.App. 526] anything more than a 'land banking' operation which is clearly in violation of Neb. Const. art. I, section 21.[ (FN59)] Turning to the facts of this case, we address two questions: (1) Does the record show a reasonable relationship between project and problem? (2) Does the record show a reasonable relationship between problem and solution? [12] We can quickly dispose of the relationship between project and problem. The county identifies three problems that it claims Burton's project will exacerbate. It emphasizes traffic circulation, for it wants to minimize "pocket neighborhoods" that lack access to adjoining neighborhoods. It also identifies, as related problems, traffic congestion and emergency vehicle access. The last, emergency vehicle access, has various facets, including (a) whether police and fire personnel can quickly reach the homes Burton intends to build, and (b) whether fire trucks responding to one of the homes can quickly turn around if called to another emergency elsewhere. Each identified problem is public, as opposed to private. Moreover, each will be exacerbated by Burton's project to at least a slight degree. Burton's project will bring more residents to the neighborhood and generate about 30 vehicle trips per day on neighborhood roads. This means an increase in the need for adequate traffic circulation in and out of the neighborhood; in the congestion on neighborhood roads (with or without better circulation); and in the likelihood that police and fire units will be called to and from the neighborhood in emergency situations. The record shows a reasonable relationship between project and problem. [13] The relationship between problem and solution requires more attention. The reason is that the record shows nothing about when, if ever, the road being exacted from Burton will extend across the Maddux's parcel and connect with Northeast 20th Avenue. To ascertain the results of that omission, we discuss (a) the effects of the exacted road [91 Wn.App. 527] when and if it ever connects with Northeast 20th Avenue; (b) the effects of the exacted road if it never connects with Northeast 20th Avenue; and (c) the factual question of when, if ever, the © 2005 Thomson/West. No claim to original U.S. Govt. works. 958 P.2d 343, 91 Wn.App. 505, Burton v. Clark County, (Wash.App. Div. 2 1998) exacted road will connect with Northeast 20th Avenue. When and if the exacted road connects with Northeast 20th Avenue, it will tend to alleviate the identified public problems. Traffic will be able to circulate to the east as well as to the west; not all traffic will have to use the roads to the west; police and fire vehicles will be able to enter the neighborhood from either direction; and fire trucks will be able to exit the neighborhood without needing to turn around. Moreover, the exacted road will tend to alleviate the identified public problems in a way that is "roughly proportional" to the project's effect on those problems. Even though Burton's project will exacerbate the identified problems to only a small degree, the exacted road is only a small part of the solution to those problems, which is the creation of an overall street grid as the area changes from rural to urban. *357 If the road never connects with Northeast 20th Avenue, it will lack any tendency to solve or alleviate any of the identified public problems. It will not better traffic circulation, for traffic will not be able to circulate to the east and north. It will not lessen traffic congestion, because all traffic, including that generated by the development, will still be forced to use the roads to the west. It will not improve police and fire ingress, because all emergency vehicles will still have to come from the west. It will not improve fire truck egress, for it will deadend at Burton's eastern property line with a temporary stub not much different from the one that exists today at Burton's west property line. It will, in short, be a road to nowhere. The crucial question, then, is this: If the exacted road is built across Burton's parcel, when, if ever, will it extend across Maddux's parcel and connect with Northeast 20th Avenue? Like any other question of fact, it may be answered [91 Wn.App. 528] directly or circumstantially. (FN60) It is not answered here, however, because the record is devoid of any evidence from which to infer when, if ever, the exacted road will cross Maddux's parcel and connect with Northeast 20th Avenue. One county staff report said only that the exacted road "shall be surveyed and designed to eventually connect with N.E. 20th Avenue." (FN61) (Emphasis added). Another county staff report said only that Northeast 65th Street was intended "for eventual connection with NE 20th Avenue." (FN62) (Emphasis added). The county's public works director found only that Burton should build the exacted road "so that it can Page 10 eventually connect to NE 20th Avenue." (FN63) The hearing examiner did not find that the exacted road would ever connect with Northeast 20th Avenue, much less when it might connect, although he did find that "a future street plan has not been adopted for this area." (FN64) The Board of Commissioners found only that the exacted road was needed "for potential future connection to NE 20th Avenue." (FN65) (Emphasis added). Even taken in the light most favorable to the county, none of this evidence provides a basis for reasonably inferring that the exacted road will connect with Northeast 20th Avenue in the foreseeable future, and without such an inference, the exacted road lacks any tendency to solve or even alleviate the public problems that the county identifies. We conclude that the county has failed to bear its burden of showing that the [91 Wn.App. 529] exacted road is a reasonable exercise of its police power, and that the examiner was correct when, after he heard the case on remand, he approved the plat without the exacted road. II. Another issue is whether the county violated Burton's right to substantive due process. We need not reach this issue, because Burton's federal takings claim is dispositive. (FN66) In passing, we observe that the ideas inherent in the federal Takings Clause may be the same as those in the "three-prong test" that determines whether a regulation violates substantive due process. (FN67) *358. III. [14][15] The last issue is whether Burton is entitled to [91 Wn.App. 530] damages and reasonable attorney's fees. He is not, because he never alleged a claim for damages or reasonable attorney's fees in any of his pleadings. (FN68) Moreover, he initially sought a writ of certiorari, and in that type of action the superior court may not entertain a claim for damages or fees that the tribunal below lacked jurisdiction to award. (FN69) The parties' remaining arguments lack merit or need not be reached. We affirm the examiner's order approving the plat without the exacted road. SEINFELD and HUNT, JJ., concur. (FN1.) The planners were relying in part on Clark County Code 12.05.370. It provides: ©2005 Thomson/West. No claim to original U.S. Govt. works. 958 P.2d 343, 91 Wn.App. 505, Burton v. Clark County, (Wash.App. Div. 2 1998) Street extensions. Where a public or private road has been constructed or created in such a manner as to be able to be extended or widened in accordance with adopted road plans or this chapter, then: (1) All residences, buildings or structures shall be constructed in such a position on the property that they will not interfere with the extension or widening of the roadway to adjacent areas and shall be so situated that such extension will make orderly and planned development for additional road installations to meet the reasonable minimum requirements of good and safe traffic circulation, consistent with applicable zoning setbacks, and; (2) Right-of--way or private easements necessary to such extension or widening and falling within parcels being developed, shall be granted or created as a condition of development approval. Clark County Code 12.05.370 is subject to, and thus has no impact on, the constitutional analysis that follows. (FN2.) Although we express this proposition in positive terms in the text, we could just as well express it in negative terms as follows: The county planning director recommended denial of Burton's application unless he would extend Northeast 65th Street across his property by dedicating aright-of- way and installing a road, curbs and sidewalks. (FN3.) Clerk's Papers (No. 21866-6-II) at 77. (FN4.) Clerk's Papers (No. 21866-6-II) at 65. (FNS.) Clerk's Papers (No. 21866-6-II) at 67. (FN6.) Clerk's Papers (No. 21866-6-II) at 66. (FN7.) Clerk's Papers (No. 20372-3-II) at 85. (FN8.) Clerk's Papers (No. 20372-3-II) at 741. (FN9.) Clerk's Papers (No. 20372-3-II) at 741-42. At this juncture, Burton and the county each filed a notice of appeal from the superior court's ruling. Simultaneously, each also sought further proceedings before the hearing examiner. The result, as the county puts it, was that the action "developed branches," County's opening brief at 6, one in this court and one in the tribunals below. When the "branch" in the tribunals below finished-- in other words, after the examiner, the Board, and the superior court had each considered this case a second time--Burton and the county filed more notices of appeal to this court. Page 11 In proceeding as they did, the parties violated RAP 7.2 and 8.3, which are intended to keep a case from "develop[ing] branches" in the absence of an appropriate order of the appellate court. (See also CR 54(b) and RAP 2.2(d), which are intended to keep a case from "develop [ing] branches" in the absence of an appropriate order of the trial court.) Consequently, we elect to treat each party's first notice of appeal as abandoned or, in what amounts to the same thing, as subsumed in its second notice of appeal. (FN10.) Clerk's Papers (No. 21866-6-II) at 479. (FN11.) U.S. Const. amend. V. (FN12.) First English Evangelical Lutheran Church v. Los Angeles County, 482 U.S. 304, 318-19, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987) (citing Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960)); Dolan v. City of Tigard, 512 U.S. 374, 384, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994) (also citing Armstrong, 364 U.S. 40, 80 S.Ct. 1563, 4 L.Ed.2d 1554); Nollan v. California Coastal Comm'n, 483 U.S. 825, 835 n. 4, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987) (also citing Armstrong, 364 U.S. 40, 80 S.Ct. 1563, 4 L.Ed.2d 1554). See also Eastern Enter. v. Apfel, 524 U.S. 498, ----, 118 S.Ct. 2131, 2146, 141 L.Ed.2d 451 (1998). *358_ (FN13.) Dolan, 512 U.S. at 383, 114 S.Ct. 2309; Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 160, 101 S.Ct. 446, 66 L.Ed.2d 358 (1980); Chicago, Burlington cPc Quincy R.R. Co. v. City of Chicago, 166 U.S. 226, 241, 17 S.Ct. 581, 41 L.Ed. 979 (1897); Sintra, Inc. v. City of Seattle, 119 Wash.2d 1, 13, 829 P.2d 765, cert. denied sub nom. Robinson v. City of Seattle, 506 U.S. 1028, 113 S.Ct. 676, 121 L.Ed.2d 598 (1992). (FN14.) We refer only to private land because we have no occasion to consider how the Takings Clause affects property other than land. Cf. Phillips v. Washington Legal Found., 524 U.S. 156, ----, 118 S.Ct. 1925, 1933, 141 L.Ed.2d 174 (1998). (FN15.) First English, 482 U.S. at 316, 107 S.Ct. 2378 ("While the typical taking occurs when the government acts to condemn property in the exercise of its power of eminent domain, the entire doctrine of inverse condemnation is predicated on ©2005 Thomson/West. No claim to original U.S. Govt. works. 958 P.2d 343, 91 Wn.App. 505, Burton v. Clark Coun the proposition that a taking may occur without such formal proceedings."). See also Sintra, Inc. v. City of Seattle, 131 Wash.2d 640, 656, 935 P.2d 555 (1997); Sintra, 119 Wash.2d at 13, 829 P.2d 765. (FN16.) E.g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982); Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585 (1962); United States v. Causby, 328 U.S. 256, 261, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946); United States v. Cress, 243 U.S. 316, 37 S.Ct. 380, 61 L.Ed. 746 (1917). See also Eastern Enter., 524 U.S. at ----, 118 S.Ct. at 2145; Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992); Sparks v. Douglas County, 127 Wash.2d 901, 907, 904 P.2d 738 (1995); Guimont v. Clarke, 121 Wash.2d 586, 597, 854 P.2d 1 (1993), cert. denied sub nom. Dept. of Community Dev. v. Guimont, 510 U.S. 1176, 114 S.Ct. 1216, 127 L.Ed.2d 563 (1994); Guimont v. City of Seattle, 77 Wash.App. 74, 80, 896 P.2d 70, review denied, 127 Wash.2d 1023, 904 P.2d 1157 (1995). (FN17.) E.g., Eastern Enter., 524 U.S. 498, 118 S.Ct. 2131; Dolan, 512 U.S. 374, 114 S.Ct. 2309; Lucas, 505 U.S. 1003, 112 S.Ct. 2886; Loretto, 458 U.S. 419, 102 S.Ct. 3164; Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979); Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322, 28 A.L.R. 1321 (1922). (FN18.) E.g., Dolan, 512 U.S. 374, 114 S.Ct. 2309; Nollan, 483 U.S. 825, 107 S.Ct. 3141; Sparks, 127 Wash.2d 901, 904 P.2d 738. (FN19.) E.g., First English, 482 U.S. at 318-19, 107 S.Ct. 2378; Sintra, 131 Wash.2d at 656-57, 935 P.2d 555. (FN20.) Lucas, 505 U.S. at 1015, 112 S.Ct. 2886; Guimont v. Clarke, 121 Wash.2d at 597, 854 P.2d 1. See, e.g. Loretto, 458 U.S. 419, 102 S.Ct. 3164; Kaiser Aetna, 444 U.S. 164, 100 S.Ct. 383; Griggs, 369 U.S. 84, 82 S.Ct. 531; Causby, 328 U.S. at 261, 66 S.Ct. 1062; Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327, 43 S.Ct. 135, 67 L.Ed. 287 (1922); Cress, 243 U.S. 316, 37 S.Ct. 380. *358_ (FN21.) Lucas, 505 U.S. at 1015-18, 112 S.Ct. 2886; Guimont v. Clarke, 121 Wash.2d at ty, (Wash.App. Div. 2 1998) Page 12 598, 854 P.2d 1; Guimont v. Seattle, 77 Wash.App. at 80, 896 P.2d 70. (FN22.) Dolan, 512 U.S. at 384-85, 114 S.Ct. 2309; Nollan, 483 U.S. at 834-35, 107 S.Ct. 3141. (FN23.) See Eastern Enter., 524 U.S. at ----, 118 S.Ct. at 2146; Christianson v. Snohomish Health Dist., 133 Wash.2d 647, 660, 946 P.2d 768 (1997); Guimont v. Seattle, 77 Wash.App. at 81, 896 P.2d 70. (FN24.) PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 81, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980) (State, in exercise of its police power, may adopt reasonable restrictions on private property so long as restrictions do not amount to taking without just compensation); Goldblatt v. Town of Hempstead, 369 U.S. 590, 592, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962); Mugler v. Kansas, 123 U.S. 623, 664-65, 8 S.Ct. 273, 31 L.Ed. 205 (1887); Sparks, 127 Wash.2d at 907, 904 P.2d 738; Unlimited v. Kitsap County, 50 Wash.App. 723, 727, 750 P.2d 651, review denied, 111 Wash.2d 1008 (1988) ("property interest can be exacted without compensation only upon a proper exercise of government police power"). (FN25.) Keystone Bituminous Coal Assn v. DeBenedictis, 480 U.S. 470, 492, 107 S.Ct. 1232, 94 L.Ed.2d 472 (1987) (quoting Mugler, 123 U.S. at 664-65, 8 S.Ct. 273). See also Christianson, 133 Wash.2d at 666, 946 P.2d 768 (Talmadge, J., concurring) ("the most fundamental, and perhaps least controversial, aspect of the police power" is "the absolute right of society to protect and preserve public health"); Presbytery of Seattle v. King County, 114 Wash.2d 320, 329 n. 13, 787 P.2d 907 (1990). If the statement in the text were not true, the government would have to pay compensation even to enjoin a landowner from maintaining a public nuisance. See United Steelworkers v. United States, 361 U.S. 39, 60, 80 S.Ct. 177, 4 L.Ed.2d 169 (1959) ("Beginning at least as early as the sixteenth century the English courts have issued injunctions to abate public nuisances." (Frankfurter, J., concurring)); Pine City v. Munch, 42 Minn. 342, 44 N.W. 197, 198 (1890) (a municipal corporation may resort to a court of equity to aid in enforcing its public duties to preserve the health of its inhabitants). (FN26.) Simpson v. City of North Platte, 206 Neb. 240, 292 N.W.2d 297, 300 (1983) (quoting McQuillin, Municipal Corporations § 32.04 (3d © 2005 Thomson/West. No claim to original U.S. Govt. works. 958 P.2d 343, 91 Wn.App. 505, Burton v. Clark County, (Wash.App. Div. 2 1998) Page 13 ed.1977)). Simpson is quoted and relied on in (FN40.) Unlimited, 50 Wash.App. at 727, 750 P.2d Dolan. See also Sparks, 127 Wash.2d at 914, 904 651. P.2d 738. (FN27.) Dolan, 512 U.S. at 391 n. 8, 114 S.Ct. 2309; Christianson, 133 Wash.2d at 660, 946 P.2d 768; cf. RCW 82.02.020 (no county shall exact a cash development fee "which the county ... cannot establish is reasonably necessary as a direct result of the proposed development or plat") (emphasis added). (FN28.) 483 U.S. 825, 836, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987). (FN29.) Nollan, 483 U.S. at 828, 107 S.Ct. 3141. (FN30.) Nollan, 483 U.S. at 828, 107 S.Ct. 3141. (FN31.) Nollan, 483 U.S. at 828-29, 107 S.Ct. 3141. *358_ (FN32.) 512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994). (FN33.) Dolan, 512 U.S. at 380, 114 S.Ct. 2309. (FN34.) Dolan, 512 U.S. at 385-86, 114 S.Ct. 2309. (FN35.) Dolan, 512 U.S. at 375, 114 S.Ct. 2309 (emphasis added). (FN36.) Dolan, 512 U.S. at 391, 114 S.Ct. 2309 (emphasis added). (FN37.) Nollan and Dolan use the term "legitimate state interest." Dolan, 512 U.S at 386, 114 S.Ct. 2309; Nollan, 483 U.S. at 841, 107 S.Ct. 3141. A number of Washington cases use the term "legitimate public purpose." Christianson, 133 Wash.2d at 661, 946 P.2d 768; Presbytery, 114 Wash.2d at 330, 787 P.2d 907; Unlimited, 50 Wash.App. at 727, 750 P.2d 651. The two terms are synonymous for present purposes. (FN41.) Luxembourg Group, Inc. v. Snohomish County, 76 Wash.App. 502, 505, 887 P.2d 446, review denied, 127 Wash.2d 1005, 898 P.2d 307 (1995); Unlimited, 50 Wash.App. at 727, 750 P.2d 651. (FN42.) We also note the Nollan Court's comment, "Had California simply required the Nollans to make an easement across their beachfront available to the public on a permanent basis in order to increase public access to the beach, rather than conditioning their permit to rebuild their house on their agreeing to do so, we have no doubt there would have been a taking." Nollan, 483 U.S. at 831, 107 S.Ct. 3141. Essentially, this is a negative formulation of the proposition in the text. It says that the government may not use the permitting process as a vehicle for solving public problems not created or exacerbated by any project. (FN43.) We also note the Dolan Court's comment, "Without question, had the city simply required petitioner to dedicate a strip of land along Fanno Creek for public use, rather than conditioning the grant of her permit to redevelop her property on such a dedication, a taking would have occurred." Dolan, 512 U.S. at 384, 114 S.Ct. 2309. As in the previous footnote, this is a negative formulation of the proposition in the text. It says that the government may not use the permitting process as a vehicle for solving public problems not created or exacerbated by any project. (FN44.) Dolan, 512 U.S. at 384, 114 S.Ct. 2309; Nollan, 483 U.S. at 835 n. 4, 107 S.Ct. 3141. See also Trimen Dev. Co. v. King County, 124 Wash.2d 261, 273, 877 P.2d 187 (1994) (quoting RCW 82.02.020) (no county shall exact cash development fees "which the county ... cannot establish is reasonably necessary as a direct result of the proposed development or plat"). (FN38.) Nollan, 483 U.S. at 841, 107 S.Ct. 3141; see also Nollan, 483 U.S. at 834, 107 S.Ct. 3141 (quoting Agins v. Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980) ("land use regulation does not effect a taking if it 'substantially advance[s] legitimate state interests' and does not 'den[y] an owner economically viable use of his land' ")). (FN39.) Dolan, 512 U.S. at 386, 114 S.Ct. 2309 (FN45.) Nollan, 483 U.S. at 836, 107 S.Ct. 3141. (FN46.) Nollan summarized this by stating that if the government can constitutionally prohibit, it can constitutionally condition, but "constitutional propriety disappears ... if the condition substituted for the prohibition utterly fails to further the end advanced as the justification for the prohibition." Nollan, 483 U.S. at 837, 107 S.Ct. 3141. © 2005 Thomson/West. No claim to original U.S. Govt. works. 958 P.2d 343, 91 Wn.App. 505, Burton v. Clark County, (Wash.App. Div. 2 1998) *358_ (FN47.) Dolan, 512 U.S. at 375, 114 S.Ct. 2309. (FN48.) Dolan, 512 U.S. at 391, 114 S.Ct. 2309 (FN49.) 127 Wash.2d 901, 907, 904 P.2d 738 (1995) (FN50.) Sparks, 127 Wash.2d at 907, 904 P.2d 738 (emphasis added). Later in its opinion, the Sparks court again noted that "local government must demonstrate that the exaction it imposes is 'roughly proportional' to the impact of the development." Sparks, 127 Wash.2d at 912, 904 P.2d 738 (emphasis added). (FN51.) Dolan, 512 U.S. at 384, 114 S.Ct. 2309; Nollan, 483 U.S. at 835 n. 4, 107 S.Ct. 3141. (FN52.) The extent to which the government may rely on future events is not well settled. As the Washington Supreme Court noted in Sparks, a case involving the exaction of easements for the widening of certain roads: But the fact that the dedications in this case were imposed, in part, to accommodate anticipated future improvement of the roads makes application of the Dolan standard less certain. It is not clear whether, under Dolan, municipalities may take into account future developments and their anticipated cumulative impacts. Sparks, 127 Wash.2d at 914, 904 P.2d 738. (FN53.) Because the record can never give a basis for inferring what the non-foreseeable future holds, the word "foreseeable" maybe redundant. (FN54.) 50 Wash.App. 723, 750 P.2d 651 (1988). (FN55.) Unlimited, 50 Wash.App. at 727, 750 P.2d 651. (FN56.) Unlimited, 50 Wash.App. at 727, 750 P.2d 651. (FN57.) 206 Neb. 240, 292 N.W.2d 297 (1983). (FN58.) Simpson, 206 Neb. 240, 292 N.W.2d at 300. (FN59.) Simpson, 206 Neb. 240, 292 N.W.2d at 301. (FN60.) We assume, for example, that the question could be answered by the county's statement that it Page 14 will condemn and construct a road across Maddux's parcel if, after a certain period, Maddux has not done so; by a combination of Maddux's statement that she intends to develop soon and the county's statement that it will exact a road when she applies for a permit to develop; by evidence showing that in the experience of reputable and qualified urban planners, "infill" parcels like Maddux's are usually developed within a certain time after the urbanization process starts; or in a variety of other ways. (FN61.) Clerk's Papers (20372-3-II) at 96. (FN62.) Clerk's Papers (20372-3-II) at 30. (FN63.) Clerk's Papers (20372-3-II) at 125-26. (FN64.) Clerk's Papers (20372-3-II) at 716. (FN65.) Clerk's Papers (20372-3-II) at 10. (FN66.) See Cuimont v. Clarke, 121 Wash.2d at 594, 854 P.2d 1; Jones v. King County, 74 Wash.App. 467, 477-78, 874 P.2d 853 (1994). (FN67.) The three-prong test involves "(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 land owner." Christianson, 133 Wash.2d at 661, 946 P.2d 768; Guimont v. Clarke, 121 Wash.2d at 609, 854 P.2d 1. Rephrased to include all governmental conduct, instead of just one specific type of such conduct (the enactment of a regulation), the first prong is the same as asking whether governmental conduct (i.e., the government's proposed solution to a perceived problem) is aimed at a public problem, as opposed to a private one. Presbytery, 114 Wash.2d at 330, 787 P.2d 907. Similarly rephrased, the second prong is the same as asking whether governmental conduct tends to solve the identified public problem. Presbytery, 114 Wash.2d at 330, 787 P.2d 907. The third prong is at least arguably the same as asking whether the government's proposed solution is roughly proportional to that part of the identified public problem that the developer's project will create or exacerbate. Because the third prong's purpose "is to prevent excessive police power regulations [i.e., a specific form of governmental conduct] that require the landowner 'to shoulder an economic burden, which in justice and fairness, the public should rightfully bear,' Christianson, 133 ©2005 Thomson/West. No claim to original U.S. Govt. works. 958 P.2d 343, 91 Wn.App. 505, Burton v. Clark County, (Wash.App. Div. 2 1998) Page 15 Wash.2d at 664, 946 P.2d 768, it would seem that governmental conduct is not "unduly oppressive" if it goes no farther than to require the developer to rectify public problems of the developer's own creation. See generally Christianson, 133 Wash.2d at 667, 946 P.2d 768 (Talmadge, J., concurring); Orion Corp. v. State, 109 Wash.2d 621, 646, 747 P.2d 1062 (noting, without approval, that "commentators have also pointed out that the regulatory takings doctrine and the longstanding substantive due process test seem analytically identical"), cert. denied, 486 U.S. 1022, 108 S.Ct. 1996, 100 L.Ed.2d 227 (1988). Regarding the propriety of substantive due process as a overall concept, see Eastern Enter., 524U.S. at ----, 118 S.Ct. at 2153 (section IV-D of plurality opinion); Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905). *358_ (FN68.) Burton did argue for damages and fees in a trial brief. He now claims that his argument was litigated and decided by the trial court without objection from either party. In fact, however, the trial court declined to consider his argument, saying he would have to pursue it in a separate proceeding. Report of Proceedings (Oct. 27, 1995) at 36. (FN69.) Punton v. City of Seattle Public Safety Comm'n, 32 Wash.App. 959, 970, 650 P.2d 1138 (1982), review denied, 98 Wash.2d 1014 (1983), overruled on other grounds by Danielson v. City of Seattle, 108 Wash.2d 788, 742 P.2d 717 (1987); see also Cohn v. Department of Corrections, 78 Wash.App. 63, 69-70, 895 P.2d 857 (1995) (superior court lacked authority to award fees where administrative board it was reviewing lacked authority to award fees); cf. Price v. Farmers Insurance Co., 133 Wash.2d 490, 946 P.2d 388 (1997). © 2005 Thomson/West. No claim to original U.S. Govt. works. a. 691 P.2d 229, 38 Wn.App. 904, Miller v. City of Port Angeles, (Wash.App. Div. 2 1984) Page 1 *229 691 P.2d 229 38 Wn.App. 904 [1] Appeal and Error ~. 80(4) Court of Appeals of Washington, Division 2. 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. Nov. 19, 1984. Review Denied March 1, 1985. Developers brought action seeking writ of review of city's conditions to its approval of subdivision plat, declaratory judgment invalidating the conditions, and damages. The Superior Court, Clallam County, Jay W. Hamilton, J., by summary judgment order certified appealable, found that disputed conditions were unconstitutional special assessments, and violated agreement between city and developers. Damage claims were dismissed. Both parties appealed. The Court of Appeals, Worswick, Acting C.J., held that: (1) city acted reasonably by requiring developers to widen adjacent roads as condition to approval of subdivision plat; (2) requirement that developers widen roads did not amount to unconstitutional tax or assessment for road improvements; (3) requirement that developers provide their share of improvement costs with respect to roads before there was any guarantee city would be able to raise the rest of the money was not unconstitutionally vague; (4) city could require widening of roads although one of the roads was outside of city's jurisdiction; and (5) agreement between developers and city was invalid and unenforceable. Affirmed in part; reversed in part; remanded with directions. West Headnotes 30 ---- 30III Decisions Reviewable 30III(D) Finality of Determination 30k75 Final Judgments or Decrees 30k80 Determination of Controversy 30k80(4) Necessity for Accounting or Inquest of Damages. Judgment of liability is not ordinarily appealable until damages have been awarded. CR 54(b). [2] Appeal and Error G°~366 30 ---- 30VII Transfer of Cause 30VII(B) Petition or Prayer, Allowance, and Certificate or Affidavit 30k366 Certificate as to Grounds. Trial court properly certified summary judgment orders appealable although damages had not been awarded where there was no just reason for delay of appellate review and issues would otherwise be heard on piecemeal basis. CR 54(b). [3] Environmental Law °670 149E ---- 149EXIII Judicial Review or Intervention 149Ek668 Time for Proceedings 149Ek670 Periods Applicable. (Formerly 199k25.15(5) Health and Environment) Thirty-day limit for contesting determination that environmental impact statement is required applied to developers' claims that city acted in bad faith in requiring preparation of environmental impact statement prior to development of subdivision. West's RCWA 43.21C.080. [4] Zoning and Planning~606 414 ---- 414X Judicial Review or Relief 414X(C) Scope of Review 414X(C)1 In General 414k606 Permissions or Certificates, Decisions Relating To. [See headnote text below] © 2004 West, a Thomson business. No claim to original U.S. Govt. works. 691 P.2d 229, 38 Wn.App. 904, Miller v. City of Port Angeles, (Wash.App. Div. 2 1984) [4] Zoning and PlanningC~610 414 ---- 414X Judicial Review or Relief 414X(C) Scope of Review 414X(C)1 In General 414k608 Arbitrary, Capricious, or Unreasonable Action 414k610 Decisions of Boards or Officers. Decision by city to grant, deny or impose conditions upon 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. West's RCWA 58.17.110, 58.17.180. [5] Zoning and Planning °. 685 414 ---- 414X Judicial Review or Relief 414X(C) Scope of Review 414X(C)3 Presumptions 414k680 Burden of Showing Grounds for Review 414k685 Permissions or Certificates. To succeed with their position that development would not create any additional problems on two roads and therefore no condition whatever concerning roads should have been imposed by city, developers had to show that city's actions were willful and unreasoning, or without consideration or in disregard of facts and circumstances of the case. West's RCWA 58.17.110, 58.17.180. [6] Zoning and Planning C°~382.2 414 ---- 414VIII Permits, Certificates and Approvals 414VIII(A) In General 414k382.1 Maps, Plats, or Plans, Conditions and Agreements 414k382.2 Streets, Improvements, and Utilities. Before approving a subdivision, local government must consider adequacy of access to and within proposed subdivision, and is empowered to condition approval of the plat upon adequate access. West's RCWA 58.17.110. [7] Zoning and Planning G°~382.2 414 ---- 414VIII Permits, Certificates and Approvals Page 2 414VIII(A) In General 414k382.1 Maps, Plats, or Plans, Conditions and Agreements 414k382.2 Streets, Improvements, and Utilities. City acted reasonably by requiring developers to widen adjacent roads as condition to approval of subdivision plat where roads which would receive most of traffic from proposed subdivision would not be adequate to handle it and were already hazardous because they were narrow and had no shoulders. West's RCWA 58.17.110. [8] Municipal Corporations C°~405 268 ---- 268IX Public Improvements 268IX(E) Assessments for Benefits, and Special Taxes 268k405 Nature of Assessment or Tax. City's requirement that developers widen roads adjacent to subdivision as condition to approval of subdivision plat did not amount to unconstitutional tax or assessment for road improvements, where, although burden of improving the roads was not imposed upon all adjacent property owners, need for improvements arose directly from the development, and developers were not required to pay more than their share of the costs. West's RCWA 58.17.110. [9] Municipal Corporations X405 268 ---- 268IX Public Improvements 268IX(E) Assessments for Benefits, and Special Taxes 268k405 Nature of Assessment or Tax. Where fees imposed by government body are intended primarily to regulate development of a specific subdivision and not simply to raise revenue, they will not be considered taxes. [10] Zoning and Planning G°~382.2 414 ---- 414VIII Permits, Certificates and Approvals 414VIII(A) In General 414k382.1 Maps, Plats, or Plans. Conditions and Agreements 414k382.2 Streets, Improvements, and Utilities. Widening streets and installing controls for safety of pedestrians and vehicle traffic are regulatory © 2004 West, a Thomson business. No claim to original U.S. Govt. works. 691 P.2d 229, 38 Wn.App. 904, Miller v. City of Port Angeles, (Wash.App. Div. 2 1984) measures within proper exercise of city's police power, and it can require that costs of the measures be borne by those who created the need. West's RCWA 58.17.110. [ 11 ] Zoning and Planning ~ 3 82 414 ---- 414VIII Permits, Certificates and Approvals 414VIII(A) In General 414k382 Conditions Attached to Permission, in General. Conditions imposed on special use permits are upheld if they do not offend any provision of zoning ordinance, do not require legal conduct on part of permittee, are in the *229 public interest, are reasonably calculated to achieve some legitimate objective of zoning ordinance, and are not unnecessarily burdensome or onerous to landowner. [12] Zoning and Planning 0382.2 414 ---- 414VIII Permits, Certificates and Approvals 414VIII(A) In General 414k382.1 Maps, Plats, or Plans, Conditions and Agreements 414k382.2 Streets, Improvements, and Utilities. City's requirement that developers provide their share of improvement costs with respect to roads adjacent to subdivision before there was any guarantee city would be able to raise rest of the money was not unconstitutionally vague due to possibility of improvements and ultimate costs remained uncertain; however, developers were entitled to assurance if they did not get improvements they were helping to finance, they would get their money back. [13] Zoning and Planning X382.2 414 ---- 414VIII Permits, Certificates and Approvals 414VIII(A) In General 414k382.1 Maps, Plats, or Plans, Conditions and Agreements 414k382.2 Streets, Improvements, and Utilities. City could require widening of roads adjacent to subdivision as condition to approval of subdivision plat, although one of the roads was outside of city's jurisdiction where city conditioned that requirement on annexation or consent of government having jurisdiction. [14] Zoning and Planning 0381.5 Page 3 414 ---- 414VIII Permits, Certificates and Approvals 414VIII(A) In General 414k378 Grounds for Grant or Denial 414k381.5 Maps, Plats, or Plans, Conformity to Regulations. City is required and empowered to make sure that subdivision developments are not inconsistent with the public health, safety and welfare and that they comply with requirements of State Environmental Policy Act; it cannot avoid this responsibility and it cannot contract away its police power. West's RCWA 58.17.110. [15] Zoning and Planning 0382.6 414 ---- 414VIII Permits, Certificates and Approvals 414VIII(A) In General 414k382.1 Maps, Plats, or Plans, Conditions and Agreements 414k382.6 Other Conditions or Agreements. (Formerly 414k382.1) Agreement between developers and city was invalid and unenforceable to extent that it could be read as prohibiting city from imposing additional conditions on development no matter what sort of development was produced. West's RCWA 58.17.110. [16] Zoning and Planning 0353.1 414 ---- 414VII Administration in General 414k353 Powers, Duties, and Liabilities 414k353.1 In General. (Formerly 414k353) Imposition of conditions of a subdivision involves discretionary governmental acts and is protected by discretionary immunity. [17] Zoning and Planning 0353.1 414 ---- 414VII Administration in General 414k353 Powers, Duties, and Liabilities © 2004 West, a Thomson business. No claim to original U.S. Govt. works. 691 P.2d 229, 38 Wn.App. 904, Miller v. City of Port Angeles, (Wash.App. Div. 2 1984) Page 4 414k353.1 In General. seeking a writ of review, a declaratory judgment invalidating the conditions, and damages. The writ (Formerly 414k353) was issued by stipulation and a return was made in due course. Developers could not recover damages from city after city imposed conditions to approve of subdivision plat, as city's actions were protected by discretionary immunity. [38 Wn.App. 905] *231 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 [38 Wn.App. 906] 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. (FN1) Condition l.a *232 required that the north side of Melody Lane be widened and that curbs, gutters and sidewalks be provided. Since Melody Lane was a [38 Wn.App. 907] county road, this condition was to apply only if the road was annexed to the City or the county agreed to the improvements. Condition l.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 [1][2] 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 defmitive 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), (FN2) 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 [38 Wn.App. 908] 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. *233 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. [3] 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 © 2004 West, a Thomson business. No claim to original U.S. Govt. works. 691 P.2d 229, 38 Wn.App. 904, Miller v. City of Port Angeles, (Wash.App. Div. 2 1984) 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. [4][5] 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. [38 Wn.App. 909] RCW 58.17.180; (FN3) 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. [6][7] Under RCW 58.17.110, (FN4) 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 *234 would have to be widened to permit a reasonable [38 Wn.App. 910] 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 Page 5 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. [8] 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. [9] [ 10] 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). [11] 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 [38 Wn.App. 911] 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. (FNS) [12] 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. (FN6) 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). © 2004 West, a Thomson business. No claim to original U.S. Govt. works. 691 P.2d 229, 38 Wn.App. 904, Miller v. City of Port Angeles, (Wash.App. Div. 2 1984) However, inasmuch as the Millers are being required to provide their share of the *235 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 they are helping to finance, they will get their money back. We believe that is what the City intended, but condition l.b does not clearly say so. Paragraph 6 provides: [38 Wn.App. 912] "vi. If the moneys deposited by the developer into the Golf Course Road Arterial Improvement Fund are not expended at the end of seven (7) years from the effective date of Ordinance No. 2094 (August 18, 1980), they shall be returned to the developer, in accordance with Section 4 of Ordinance No. 2094. The Millers argue that under this language, all or part of their money can be spent in obtaining fmancing, whether or not the improvements are undertaken. These administrative costs are not directly related to the problems generated by the development and cannot be charged to the Millers. Should the improvements not be accomplished, their money must be returned, and paragraph 6 should say so explicitly. This is an easily corrected error, however, and does not require invalidation of condition l.b. Under circumstances such as these, an appellate court may return the case to the agency or governing body to permit it to correct the oversight. Skold v. Johnson, 29 Wash.App. 541, 553, 630 P.2d 456 (1981). See also Barrie v. Kitsap Cy., 93 Wash.2d 843, 613 P.2d 1148 (1980), and Washington Public Employees Assn v. Comm. College Dist. 9, 31 Wash.App. 203, 642 P.2d 1248 (1982). [13] The Millers next contend that even if such conditions could be imposed under proper circumstances, they cannot involve property outside the local government's jurisdiction. We disagree. The City was required to consider effects of the development outside its territory and mitigate them if possible. Save our Rural Environment v. Snohomish Cy., 99 Wash.2d 363, 662 P.2d 816 (1983); Cathcart-Maltby Clearview Community Council v. Snohomish Cy., 96 Wash.2d 201, 634 P.2d 853 (1981); Save A Valuable Environment v. Bothell, 89 Wash.2d 862, 576 P.2d 401 (1978). Under the rule established by these cases, Port Angeles had only two alternatives. It had to find a way to mitigate the effects on the two roads, or it had to deny the Millers' application. It is more sensible to permit a municipality to deal positively with problems like Page 6 these than to require it to avoid the problems by [38 Wn.App. 913] denying the developments. Therefore, we hold that a City may properly require an improvement outside of its territorial jurisdiction if it conditions that requirement on annexation or the consent of the government having jurisdiction. [14][15] Finally, the Millers contend that the City was prevented by the 1973 agreement from imposing any additional conditions on their development. Our response is short. The City is required and empowered to make sure that subdivision developments are not inconsistent with the public health, safety and welfare and that they comply with the requirements of SEPA. RCW 58.17.110; Loveless v. Yantis, 82 Wash.2d 754, 765, 513 P.2d 1023 (1973). It cannot avoid this responsibility and it cannot contract away its police power. Raymond Lumber Co. v. Raymond Light & Water Co., 92 Wash. 330, 159 P. 133 (1916); Terrace Heights Sewer Dist. of Yakima Cy. v. Young, 3 Wash.App. 206, 473 P.2d 414 (1970). If and to the extent that the 1973 agreement can be read as prohibiting the City from imposing additional conditions no matter what sort of development the Millers produced, it was invalid and unenforceable. (FN7) [16][17] Because we hold the conditions valid, we need not discuss damages. However, we feel compelled to note that damages simply would not be recoverable in this case. The imposition of conditions on *236. a subdivision involves discretionary governmental acts and is protected by discretionary immunity. See Northwest Land & Inv. Co., Inc. v. Bellingham, 31 Wash.App. 742, 644 P.2d 740 (1982). The City's actions here fully satisfy the criteria for governmental immunity set forth in Bender v. Seattle, 99 Wash.2d 582, 664 P.2d 492 (1983). (FN8) Its land use policies were involved. It was acting [38 Wn.App. 914] under explicit statutory authority, and it carefully balanced the risks and advantages of its actions. The orders dismissing the Millers' claims are affirmed. The orders preserving any such claims for trial are reversed. Remanded with directions that the City clarify the conditions consistent with this opinion. PETRIE and HICKS, JJ., concur. (FN1.) There were 8 conditions in all. The Millers did not object to the other 7, involving pedestrian walkways, storm drains, waste disposal, open space and landscaping. © 2004 West, a Thomson business. No claim to original U.S. Govt. works. 691 P.2d 229, 38 Wn.App. 904, Miller v. City of Port Angeles, (Wash.App. Div. 2 1984) Pertinent parts of the disputed conditions, l.a and l.b, provided: "a. Melody Lane shall be improved to a width of 28 feet with curb, gutter and sidewalk on the north side. Improvements shall include provisions for storm drainage and be subject to approval by the Port Angeles Public Works Department. (This condition is subject to approval by the Clallam County Commission or by acquisition of title to Melody Lane by the City through an annexation petition by residents of Melody Lane, whichever is first) [sic ]. "b. Golf Course Road from Melody Lane to the south boundary of Highway 101 shall be improved and upgraded, including street alignments at intersections of Third, Fourth and Fifth Streets, in accordance with specifications of the Department of Public Works. The developer of Uplands No. 4 Subdivision shall make monetary contributions toward the cost of providing the required improvements to Golf Course Road, by contributing to a special "Golf Course Road Arterial Improvement Fund" in accordance with the following procedures: "i. The total cost, in July, 1980, dollars, for the necessary improvements to Golf Course Road is estimated to be $340,036, which includes construction of the street, curbs, and sidewalk on one side in accordance with the City of Port Angeles, Washington State Department of Transportation, and American Public Works Association specifications and standards. "ii. The percentage of total cost to be borne by Uplands No. 4 development is $60,424.90. This figure is determined by dividing the 778 average trips (ADTs) generated by the development of Uplands No. 4, as described in the EIS, by the total average daily trips (ADTs) after construction of Uplands No. 4 (4,378 ADTs), as described in the EIS, and multiplying that percentage (18%) by the total cost necessary to construct Golf Course Road. "iii. The total cost to be borne by each dwelling unit in Uplands Division 4 is $416.66. This figure is determined by dividing the total share borne by Uplands No. 4 ($60,424.90) by the total number of dwelling units (144). Thus, for construction proposed in Uplands No. 4, Phase II (24 units), the total contribution is $9,999.84." (FN2.) All orders were certified to be final and appealable under CR 54(b), which provides: Page 7 "When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination in the judgment, that there is no just reason for delay and upon an express direction for the entry of judgment...." A judgment of liability is not ordinarily appealable until damages have been awarded. Bowing v. Board of Trustees of Green River Comm. College Dist. X, 85 Wash.2d 300, 534 P.2d 1365 (1975). However, it is appropriate for us to consider all of the issues now, rather than hearing the case on a piecemeal basis. See Sch ffman v. Hanson Excavating Co., Inc., 82 Wash.2d 681, 513 P.2d 29 (1973). We agree with the trial court's certification that there is no just reason for delay of appellate review in this case. See Doerflinger v. New York Life Ins. Co., 88 Wash.2d 878, 567 P.2d 230 (1977). (FN3.) RCW 58.17.180 provides in pertinent part: "Any decision approving or disapproving any plat shall be reviewable for unlawful, arbitrary, capricious or corrupt action or nonaction by writ of review before the superior court of the county in which such matter is pending...." (FN4.) RCW 58.17.110 provides, in relevant part: "The city, town, or county legislative body shall inquire into the public use and interest proposed to be served by the establishment of the subdivision and dedication. It shall determine if appropriate provisions are made for, but not limited to, the public health, safety, and general welfare, for open spaces, drainage ways, streets, alleys, other public ways, water supplies, sanitary wastes, parks, playgrounds, sites for schools and schoolgrounds, and shall consider all other relevant facts and determine whether the public interest will be served by the subdivision and dedication...." *236_ (FNS.) We would also point out that the conditioning of plat approval is analogous to the imposition of conditions on special use permits. In that context, the conditions are upheld if they (1) do not offend any provision of the zoning ordinance, (2) do not require illegal conduct on the © 2004 West, a Thomson business. No claim to original U.S. Govt. works. 691 P.2d 229, 38 Wn.App. 904, Miller v. City of Port Angeles, (Wash.App. Div. 2 1984) part of the permittee, (3) are in the public interest, (4) are reasonably calculated to achieve some legitimate objective of the zoning ordinance, and (5) are not unnecessarily burdensome or onerous to the landowner. Gerla v. Tacoma, 12 Wash.App. at 889, 533 P.2d 416. Those requirements are satisfied here. (FN6.) Paragraphs 4 and 5 of Condition l.b provided: "iv. For dwelling units developed pursuant to later approval, the cost per unit shall be determined by adjusting the cost figure in the calculation above. The cost figure increase shall be determined by use of the Engineering News Record Construction Cost Index, using July, 1980, as the base period, and $340,026 as the base cost. If the road has already been constructed, then the actual cost of construction shall be used to determine the per-unit cost. "v. The remaining funds required for improving Golf Course Road will have to consist of Municipal Arterial Street Funds, moneys derived from an L.LD., and other approved sources. These funds Page 8 shall also be placed into the Golf Course Road Arterial Improvement Fund." (FN7.) That agreement is innocuous and can easily be read as contemplating nothing more than the immediate 24-lot development. We prefer, however, to rest our decision on broader grounds. (FN8.) The criteria suggested by Bender are: "(1) Does the challenged act ... necessarily involve a basic governmental policy, program, or objective? (2) Is the ... act ... essential to the realization or accomplishment of that policy, ... as opposed to one which would not change the course or direction of the policy, ...? (3) Does the act, ... require the exercise of basic policy evaluation, judgment, and expertise of the governmental agency involved ...? (4) Does the ... agency ... possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, ... or decision?" (5) Is there actual evidence that the agency consciously balanced the risks and advantages? Bender v. Seattle, 99 Wash.2d at 588-89, 664 P.2d 492. © 2004 West, a Thomson business. No claim to original U.S. Govt. works. ~pfc THE' YELM WASHINGTON To: From: Date: Subject: Appellant: Location: Proposal: I. INTRODUCTION Freestone DFF Yelm II, LLC through William Lynn appeals mitigation measure 2(d) of a Mitigated Determination of Non-significance for a proposed 50 lot subdivision. Specifically the requirement of removing one of the two existing driveway accesses for an existing home, and an agreement to move the other driveway access within 6 years. II. BACKGROUND In 2004, the City held a presubmission conference for a subdivision of this site. The engineering firm for the applicant was Parametrix. Discussions were held regarding the existing home, and the removal of the driveways for the existing home based on the subdivision of the property. After the original presubmission meeting, the applicant changed to Freestone, and they retained parametrix as the project engineer. In discussions with the engineer, the City agreed that based on a hardship by the property owner, one driveway could retain access on Middle Road with a recorded agreement that the driveway be removed within 6 years. In July 2004, Freestone DFF Yelm II, LLC applied for a boundary line adjustment between two parcels located on Middle Road. The two parcels were approximately 8.5 and 10 acres in area, the larger of which was occupied by a single family dwelling. The approved boundary line adjustment changed the parcel configurations, to keep the single family dwelling on a smaller lot, and leaving approximately 17 acres surrounding the single family dwelling. Staff Report City of Yelm Community Development Department Stephen K. Causseaux, Jr., Hearing Examiner Grant Beck, Director of Community Devetopme May 18, 2005 Appeal of Mitigated Determination of Non-Significance SUB-04-0175-YL APP-05-0112-YL Freestone DFF Yelm II, LLC Middle Road, Yelm, WA. Appeal Mitigation Measure 2(d) of the MDNS issued for the proposed Griffin Place subdivision. The City denied the boundary line adjustment, stating that the new parcel did not meet Thurston County lot size regulations for well and septic requirements, and did not meet density requirements. At the appeal hearing, the appellant offered to connect the existing home to City water and sewer services. The Hearing Examiner granted the appeal based on conditions that the home be connected to City water and sewer services, and did not prohibit the City's request for frontage improvements as part of a future subdivision. Freestone then applied for a preliminary subdivision on the larger piece. The City of Yelm reviewed the SEPA checklist and issued an MDNS on March 21, 2005. The MDNS included mitigating measures to include 2(d) which states: "The existing single family home may retain one driveway entrance on Middle Road, with a recorded agreement between the property owner, developer, and City that the driveway entrance be relocated to the new plat internal street no later than 6 years from the date of recording. The agreement shall provide for driveway removal from Middle Road and restoration to City standards." III. ISSUES Section 16.16.050 Yelm Municipal Code (YMC) states that lots within a residential subdivision shall be designed so that lots adjacent to arterial and collector streets are not allowed direct access. The director may approve may approve direct access as an exception to the above requirement upon written finding that: A. Sight distances comply with Yelm development standards for the posted speed plus 10 miles per hour; B. The safety of the traveling public is not likely to be jeopardized; C. The applicant is able to show to the satisfaction of the director that a significant hardship would exist if access is not approved; D. No other practical and feasible access is available. (Ord. 436, 1992). In most circumstances the City requires existing homes that remain as part of a subdivision to meet the above requirement. May 23, 2005 Page 2 of 4 IV. ANALYSIS The appellant states: 1. The condition is imposed on an existing single-family lot that is not part of the proposed subdivision. Therefore, the City has no authority to impose any conditions. The State Environmental Policy Act states that if the proposal consists of a series of actions that are individually exempt, but together may have a significant impact, the proposal is not exempt. The boundary line adjustment does not exempt the new parcel from review for impacts. 2. The current use of the existing single-family home that is the subject of Mitigation measure 2(d) will not be altered by the approval of the subdivision, ... thus there is no impact to mitigate. Based on SEPA, the existing home should be reviewed as part of the subdivision, and the addition of 50 single family homes surrounding this parcel creates an impact to the City's street system. The existing driveway is located on a collector street, and near a sharp corner, where driveway access creates a hazard with the increase of vehicles based on residential development in the area. These impacts are mitigated by street improvements, and removing residential accesses from arterial and collector streets. 3. RCW 43.21 C.060 permits mitigation measures for "specific adverse environmental impacts identified in the environmental documents." The City, in its MDNS identified that the location of the existing driveways on Middle Road, with the addition of the new trips onto Middle Road does create an impact. This impact is mitigated by removing the driveway. 4. RCW 43.21 C.060 requires conditions be based upon polices identified by local government as a basis, and that the policy be identified in writing. The City of Ye/m 2001 Comprehensive Transportation Plan Update Policy #15 Transportation System Management (TSM) Policy states: To efficiently operate the transportation system through TSM Strategies. These will include: Signal interconnection systems... Turn lanes and pockets to move turning vehicles out of through traffic lanes Access control for arterials and major collectors to minimize disruptions in traffic flow May 23, 2005 Page 3 of 4 Section 16.16.050 YMC identifies measures to implement this policy by stating that lots within a residential subdivision shall be designed so that lots adjacent to arterial and collector streets are not allowed direct access. 5. RCW & WAC requires that mitigation measures be reasonable and capable of being accomplished. The existing home and parcel are not in appellant's ownership. The appellant and current homeowner were aware of the City's requirement prior to the boundary line adjustment and subsequent sale of the property. The existing home can be accessed by the new local access street that will be created. 6. Mitigation measure 2(d) is arbitrary and capricious and contrary to law. The mitigation measure 2(d) is based on State and Local laws and regulations. The existing home should be reviewed under SEPA as stated above. The mitigation measure is supported by the City of Yelm's written polices and regulations. VI. CONCLUSION The mitigating conditions of the Mitigated Determination of Non-significance are appropriate and are based on identified potential significant adverse impacts attributable to the development, and conditions based on City regulations. LIST OF EXHIBITS Appeal Notice and Letter Traffic Impact Analysis MDNS Map May 23, 2005 Page 4 of 4 City of Yelm YE M WAENIMGTON Community Development Department NOTICE OF APPEAL Fee: Staff Decision - $50.00 Hearing Examiner Decision - $100.00 (In addition, any professional service charges per Resolution #358) 5 A Closed record appeal may follow either an open record hearing or an open record administrative decision on a project permit application when the appeal is on the record, and no or limited new evidence or information is allowed to be submitted. Appeals on Category I & II project decisions are heard by the City Council. Appeals on Category III & IV project decisions as well as Category I & II decisions which have been appealed to the City Council go to Superior Court and follow the judicial review process set forth in RCW 366.70C. A Notice of Appeal must be filed within 14 days of Notice of Final Decision. PROJECT CASE NUMBER BEING APPEALED SFPA: 0175 DATE OF NOTICE OF FINAL DECISION March 21 2005 APPELLANT(S) Freestone DFF Yelm II, LLC through William Lynn Mailing Address Gordon, Thomas, Honeywell etal P 0 Box 1157 City, State and Zip Tacoma, WA 98401 Telephone 253-620-6416 EMAIL wlvnn@GTH-Law com SPECIFIC ITEMS OF DECISION BEING APPEALED (attach additional sheet if necessary): Set forth in the attached letter I affirm that all answers, statements and information contained in and submitted with this application are complete and accurate to the best of my knowledge. I also affirm that I am the owner of the subject site or am duly authorized by the owner to act with respect to this application. Further, I grant permission from the owner to any and all employees and representatives of the City of Yelm and other governmental agencies to enter upon and inspect said property as reasonably necessary to process this application. L~gree to pay all fees of the City that apply to this application. Signed ~ Date ~ 4~~0~ w.. _.. ,~; Fee Date Received ' By ,f 1y` ~ Ti File No. - ~ L_ .y~v~ I05 Yelm Avenue West (360) 458-3835 PO Box 479 Yelm, WA 98597 (360) 458-3144 FAX www.ci.ye[m.wa.us LAW OFFICES CORDON, THOMAS, HONEYWELL, MALANCA, PETERSON £~ DAHEIM LLP TACOMA OFFICE 1201 PACIFIC AVENUE. SUITE 2200 POST OFFICE BOX 1157 TACOMA. WASHINGTON 98401-1 1 5 7 12531 620-6500 FACSIMILE (2531 620-6565 REPLY TO TACOMA OFFICE WILLIAM T. LYNN ATTORNEY AT LAW DIRECT (253) 620-6x16 (2061 676-64 16 E-MAIL lynnw~gth-law.com SEATTLE OFFICE ONE UNION SQUARE 600 UNIVERSITY, SUITE 2100 SEATTLE, WASHINGTON 96 10 1-4 1 6 5 12061 676-7500 FACSIMILE 1206) 676-7575 April 4, 2005 Grant Beck Community Development Director City of Yelm inc v„i,,, n,.,,,,,,,, ~x~,,,.. 1VJ llillll [lY Y~11UY+ 11 YrJ~ P.O. Box 479 Yelm, WA 98597 RE: SEPA Appeal Dear Mr. Beck: This letter provides the basis for the appeal of the MDNS for the plat of Griffin Place. The MDNS was issued March 21, 2005, and a copy is attached to this letter. The Appellant challenges Mitigation measure 2(d) and alleges the following errors: 1. The condition is imposed on unexisting single-family lot that is not part of the proposed subdivision. Therefore, the City has no authority to impose any conditions. 2. The current use of the existing single-family home that is the subject of Mitigation measure 2(d) will not be altered by the approval of the subdivision, thus there is no impact that may be "mitigated" under the authority of RCW 43.21C Chapter and the implementing City code provisions. WAC 197-11-660(d) "Responsibility for implementing mitigation measures may be imposed upon applicant only to the extent attributable to the identified adverse impacts of its proposal." 3. RCW 43.21 C.060 only perniits the imposition of mitigation measures that mitigate "specific adverse environmental impacts which are identified in the environmental documents" prepared under SEPA. Mitigation measure 2(d) does not meet this requirement. 4. RCW 43.21C.060 also requires that any conditions be based upon policies identified by the local government as a basis for the exercise of its mitigation authority. Moreover, under WAC 197-11-660(b), any such policy that is relied upon must be identified in writing. Mitigation measure 2(d) does not meet these requirements. [1306075 vl.doc] GORDON, THOMAS, HONEYWELL MALANCA, PETERSON £~ DAHEIM LLP April 4, 2005 Page 2 5. RCW 43.21C.060 and WAC 197-11-660(c) requires that mitigation measures be reasonable and capable of being accomplished. For the reasons cited above, and for the additional reason that the subject property is not within the ownership and control of the Appellant, Mitigation measure 2(d) does not meet this requirement. 6. The Mitigation measure 2(d) is arbitrary and capricious and contrary to la~v. Very truly yours, William T. Lynn J WTL:gam Attachments [1306075 vl.doc] .Jake Traffic Engineering, Inc. . Mark J. Jacobs, P.E., P.T.O.E. President 1131 8~ Ave SW -Seattle, WA 98106 - 2001 Tel. 206.762.1918 -Cell 206.199.5692 -Facsimile 206.162.1918 E-mail jaketra{fic@comcast.net March 3, 2005 Recewe Scott Griffin, Member FREESTONE DFFYELM II, LLC 6820 20th St. East Fife, WA 98424 Re: Yelm Plat - Yelm Addendum Letter Dear Mr. Griffin, LIAR 0 S 2005 We have prepared this Addendum Letter to our Level II Traffic Impact Analysis Report dated August 25, 2004 in response to the City's February 11th, 2005 letter to you, a copy of this letter is attached. This addendum reviews the sight lines at the Proposed Plat Access on Middle Rd. S.E. for the Yelm Plat project. The site is located at 16440 Middle Rd. Southeast. Access to the site is provided via a new intersection off of Middle Rd. Southeast. Site Access Sight Distance The City of Yelm's sight distance standards are based on the American Association of State Highway and Transportation Officials (AASHTO) criteria. Exhibit 9-55 "Design Intersection provides guidance to the recommended sight lines contained in the American Association of State Highway and Transportation Officials (AASHTO) A Policy on geometric Design of highways and Streets, 2001 provides guidance regarding recommended sight lines at access points. Sight Distance -Case B1 -Left Turn from Stop" (attached in the appendix) identifies sight distance criteria fora 25 MPH design speed, the posted speed limit on Middle Road Southeast. The stopping sight distance is identified at 155 feet and the entering sight distance is 280 feet fora 25 MPH speed. The sight lines at the existing south driveway serving a single family home (SFDU) on Middle Road S.E. were previously field measured. No impediment to the sight line to the north exists. A horizontal curve in Middle Road S.E. to the south affects the sight line that is further exacerbated by vegetation growth in the right of way. The Proposed Plat Access intersection on Middle Rd. S.E. to serve the subject Yelm Plat project is -75 to the northwest of this existing SFDU driveway. '.Eng~ncci. s.-~rolcC iilca`~.(YJn Wa - lTCpct f~tca zwn VCJd C1M1 relm. W.at. Liceatoni DFF YftM a LlC -r~ln.~Si~J~cuaa5igntt~nea\pU]rnaumlc~xci eoe Scott Griffin, Member FREESTONE DFF YELM II, LLC March 3, 2005 Page -2 - The following table shows the stopping and entering sight distances at the existing SFDU and Proposed Plat Access intersections with Middle Road Southeast: SSD (ft.) ESD (ft.) Location from from northwest southwest to northwest to southeast Existing SFDU Driveway 200' + 210' 350' + 230' (225')1 (240')1 Proposed Plat Access 200' + 210' + 350' + ~ 310' s Der the AACI-ITl1 nritoriM the c+nnninR ~nr•I cntcrincs cicrht riict~n~c ctanrlarric /~ Fi~i anl~ '~Q('I wf. r....b ., ..b ... b.. r~~ feet, respectively) are met at the Proposed Plat Access on Middle Road Southeast. Cutting back the vegetation in the right of way on the inside of the horizontal curve on Middle Road would enhance the sight line for the existing SFDU driveway that is not a part of the subject project. Summary and Conclusion This letter has reviewed the site access sight lines at the Proposed Plat Access on Middle Road Southeast. The AASHTO recommended sight lines of 155 and 280 feet, SSD and ESD, respectively, are the City of Yelm criteria fora 25 MPH speed. Our analysis indicates that the City of Yelm sight distance requirements would be met at the Proposed Plat Access /Middle Rd. S.E. intersection. The access intersection would need to be constructed to City of Yelm criteria. Cutting back the vegetation in the right of way on the inside of the horizontal curve on Middle Road would enhance the sight line for the existing SFDU driveway that is not a part of the subject project. If you have any questions you can contact me at (206) 762.1978 or email me at J. ~ ~~, -.c~ev> `% -~ y I~- i `_ ' r - T- v ~~ 25744 ' ~v 'F R~• -~ G`am''" ~~NAI. ~ MJJ: m" ~u~s 4l3/G Very truly yours, Mark J. Jacobs, PE, PTOE, President Jake Traffic Engineering, Inc. 1 -Sight line with trimming of brush in the right of way located on the inside of the horizontal curve on Middle Road S.E. to the south of the driveway 2 -Sight distance based on previous measurements and County aerial mapping information (copy attached) \~F~C~^a:~'~c~-1}ycci~k~',]G0A W0. Ra)<n f~wa 2Wd'u 0040]5 ram aui r~o~ao~~orr r[iuu ;~,.ram,s,o,k~wwenw~o„caa~,w~~mma•~ea O~,~F T"~p City of Yelln fie. °' ~' Community Development Department 105 Yelm Avenue 4~'est P.O. Box 479 YELM Yelm, WA 98597 WASHINGTON February 11, 2005 Mr. Scott Griffin Freestone DFF Yelm Il LLC - P.O. Box 73669 Puyallup, WA 98373 Dear Mr. Griffin: The City has performed a preliminary review of your environmental checklist, and requires further information before we can complete our environmental review. The road connection to the new subdivision located on the west side of the property does not align. Please have your engineer contact Skillings Connelly to acquire the correct placement of the new road connection. The amount of grading discussed in the environmental checklist does not correlate with the amount shown on the preliminary grading plan. The Traffic Impact Analysis submitted does not discuss sight distance on Middle Road. Please submit more detailed information on sight distance in the north and west directions, to include existing driveways. Please submit the additional information above. If you have any further questions, please feel free to give me a call. Sincerely, ,ri _ , ;~~~~ ~ / L Tami Merriman Assistant Planner cc: Cathie Carlson, Parametrix (360) 958-3835 (3G0) -158-3149 FAX mu~u~.ci.velm.u~n.us 0 a~ on a '. N _~ ~ ~ .~ ~ p ;~ r^^" _ J ;mow ~" ~ V R ` ~ ~ _ `.y ~ it +.+ '`~`~ s OQ ~ ~ ,A. ~ p .` . v 1.y ~ _ ~ ,. ~~.:~ ~ ~' ~ ~ ~ ~ 3~ _. ~ ._ ~ ~~~~ ~ ~ t a _ ~. - ~~: _ : ~` Project: Yelm Plat Location: 16440 Middle Rd. S.E. Owner. Freestone DFF Yelm II, LLC NORTH m w ~ ~, ~ .Q W rn ~ ~ 37th St S e~ ~ ti ~ H ~ 5`O ~ o o ~ ~ U ~ T p ~ Y ^ ~ ¢ 'D~~ % . ~ S ett vi S. -a - ~ ~SF Q ~ ' P N ~r 6 Berry Valley Rd SE a~ ~i ti~ 4r,~ RD ~ 'P e g 9 ° o ~.~' SF `ea~ <o ngmire St SE :ve~m y,, ® os g ~ I'~ w F Project Ste N g~ ~, ,~ ~ g, ~ r~ sty NE 103rd Are b SE 103rd Ave ~ F c~ 8,;~tt y ~' ` ' ~ ~ W ~ ¢ 105th Way SE ~ Five Corners Hill ~~~a Rd SE ~ ~ yw/ ~ ~ ~ ~ 109th Ave SE ~ ~ N 9 .LY C - YELM PLAT -YELM LEVEL II TRAFFIC IMPACT AN ALYSIS FIGURE 1 VICINITY MAP Project: Yelm Plat Location: 16440 Middle Rd. S.E. Owner. Freestone DFF Yelm II, LLC Tract ~ 1C 4 lO~p C ~ ~ 01~ ~ ~ 7 Trg ~ ~ . I, v ^ * ~n r ~o+~ w ^ w ti a ~o ~ ~pIG A • ThOd ~ x ar ~ ,A ~ ~ it ~ ~ M ~ ~1 r ~~ x i YELM PLAT -YELM LEVEL II TRAFFIC IMPACT ANALYSIS FIGURE 2 SITE PLAN e ~C a 4 ~i 4 3? YELM ~~ P~ .~~L. ~ TIC IMPACT ~L.Y~iS Prepared for Scott Griffin, Member FREESTONE DFF YELM II, LLC 6820 20th St. East Fife, WA 98424 August 25, 2004 JTE, ~nC, JAKE TRAFFIC ENGINEERING, INC. Mark J. Jacobs, P.E., P.T.O.E., President 77318 Ave. SW -Seattle, WA 98106 - 2007 Tel. 206.762.1978; Cell. 206.799.5692 Facsimile 206.762.1978 Email -jaketraffic@comcast.net .Jake Traffic Engineering, Inc . Mark J. Jacobs, P.E., P.T.O.E. President 113 18~" Ave SW -Seattle, WA 98106 - 2001 Tel. 206.162.1918 -Cell 206.199.5692 -Facsimile 206.162.1918 E-mail jaketraffic@comcast.net August 25, 2004 Scott Griffin, Member FREESTONE DFF YELM II, LLC 6820 20th St. East Fife, WA 98424 Re: Yelm Plat - Yelm Level II Traffic Impact Analysis Dear Mr. Griffin; We are pleased to submit this Level II Traffic Impact Analysis for the proposed Yelm Plat project. The project proposes to provide 50 single family lots. The site is located at 16440 Middle Rd. Southeast. Access to the site is provided via a new intersection off of Middle Rd. Southeast. We prepared a Traffic Scoping Worksheet which identified the intersections to be studied. City of Yelm staff reviewed the Scoping Worksheet and identified the following intersections for study in this Traffic Impact Analysis: - 1St St. S./SR 507 - 1St St. N./Rhoton Rd. S.E. y Kailway Kd. S.t./Middle Kd. S.t. - 100 Way S.E./Grove Rd. S.E. - Site Access intersection We have conducted a field review of the site and surrounding street system. The general format of this report is to describe the proposed project, identify existing traffic conditions (baseline), project future traffic conditions and identify Agency street road improvements (future baseline), calculate the traffic that would be generated by the project and then add it to the future baseline traffic volumes. Operational analyses are used to determine the specific project traffic impact and appropriate traffic mitigation measures to reduce the impact. The City of Yelm traffic impact fee is also discussed. The summary, conclusions and recommendations begin on page six of this report. C \-p.pct FiN.~D01015 ~ YNm H.t - FrNSt.n. OFF YELM II LLC - Y.Im~inl/. Imp.C M.lys. Ooc J~'~, 1 ~ . Scott Griffin, Member FREESTONE DFF YELM II, LLC August 25, 2004 Page -2- PROJECT INFORMATION Figure 1 is a vicinity map which shows the location of the site and its surrounding street system. Figure 2 shows a preliminary site plan prepared by Parametrix, Inc. provided to us on August 25th, 2004. The site plan consists of the layout of the proposed project and internal street system. A street stub exists on the northwest portion of the project to provide for future development. Access to the site is provided via a new intersection off of Middle Rd. Southeast. Full development and occupancy of the proposed Yelm Plat project is anticipated to occur by 2006, presuming the permits are issued in a timely manner. However, to ensure a conservative analysis 2009 is proposed to be used as the horizon year. EXISTING ENVIRONMENT Project Site The site is currently undeveloped. Street Svstem Figure 3 shows the existing traffic control, number of street lanes, number of approach lanes at intersections and other pertinent information. The primary streets within the study areas and their functional classifications are as follows: - W/E Yelm Ave. - SR 510/507 Arterial - 1st St. S./N. Arterial - Rhoton Rd. S.E. Collector - Railway Rd. S.E. Collector - Grove Rd. S.E. Collector - Middle Rd. S.E. Local Access - 100 Way S.E. Local Access Traffic Volumes Figure 4 shows the existing PM peak hour traffic volumes for the analysis intersection. Trafficount, a firm that specializes in the collection of traffic data, collected the existing PM peak hour turning movement count at the 1St St. S./SR 507 on the date shown in Figure 4. Existing PM peak hour turning movement counts at the Railway Rd. S.E./Middle Rd. S.E., 100th Way S.E./Grove Rd. S.E. and Rhoton Rd. S.E./Railway Rd. S.E. intersections were gleaned from the Traffic Impact Analysis for Willow Glen Phase III Preliminary Plat by Skillings-Connelly, Inc. dated August 22, 2002. C \-RONa Film V00~ 015 - YNm RN - Ftwalom OFF YEiM 11. LLC- Yalm\Tnflc ImyG M.Mn Cx Scott Griffin, Member FREESTONE DFF YELM II, LLC August 25, 2004 Page -3- Intersection Operations Traffic engineers have developed criteria for intersection operations called level of service (LOS). The LOS are A to F with A and B being very good and E and F being more congested. LOS C and D correlate to busy traffic conditions with some restrictions to the ability to choose travel speed, change lanes and the general convenience comfort and safety. The procedures in the Transportation Research Board Highway Capacity Manual, 2000 were used to calculate the level of service at the study intersections. The following table depicts the LOS and corresponding average delay in seconds at signalized and stop control intersections: Intersection Level of Service Type A B C D E F Signalized <10 >10 and >20 and >35 and >55 and >80 <20 <35 <55 <80 Stop Control <10 >10 and >15 and >25 and >35 and >50 <15 <25 <35 <50 LOS Analvsis Criteria We understand that the City's LOS criterion is "D" except for the SR 510 corridor where a lower LOS is acceptable. LOS Analvsis Software The LOS of the study intersections were calculated using the following software program: - Signal 2000 (signalized) by Strong Concepts - Highway Capacity Software (HCS) 2000 by McTrans (stop control) Accident History The Traffic Impact Analvsis for Willow Glen Phase III Preliminary Plat reviewed accidents for the analysis intersections for a three year time period (January 1, 1999 to December 31, 2001). This report determined the accident rate at the SR 507/151 St. S.E. intersection. The SR 507/151 St. S.E. intersection yielded an accident rate of 1.46 per million entering vehicles. The other analysis intersections had minimal recorded accidents at the intersection thus were not analyzed for accident rates. C \-Rgect F~Im~OW 015 ~Yalm PM - FlNnrons DFF YELM 11 LEC ~ Yalm\i""K Imgcl lnayva Eoc ~~~, ~n~. Scott Griffin, Member FREESTONE DFF YELM II, LLC August 25, 2004 Page -4- No apparent problems were noted at the analysis intersections during our field reconnaissance of the site and study streets and intersections. HORIZON YEAR CONDITIONS "WITHOUT" THE PROJECT Historical Traffic Growth A growth factor of three (at the SR 507/SR 510 intersection) and four percent (at the other analysis intersections per year was applied to the baseline traffic data based on past traffic studies conducted in the City. Pipeline Projects The following are pipeline projects located in the vicinity of the proposed project: - Willow Glenn Phase II (441ots) - Cherry Meadows Subdivision (202-lots) - Yelm Terra (97-lots) - Mountain Sunrise (103-lots) 2009 Traffic Volumes Figure 5 shows the projected 2009 PM peak hour traffic volumes "without" the project. These volumes include the existing traffic volume counts plus background growth and traffic generated by the identified "pipeline" projects. Background traffic growth inherently includes traffic generated by development. Therefore, projecting horizon year traffic volumes using both a growth factor and adding "pipeline" traffic data is a conservative approach. TRIP GENERATION AND DISTRIBUTION Definitions A vehicle trip is defined as a single or one direction vehicle movement with either the origin or destination (existing or entering) inside the proposed development. Traffic generated by development projects consists of the following types: Pass-By Trips: Trips made as intermediate stops on the way from an origin to a primary trip destination. Diverted Link Trips: Trips attracted from the traffic volume on roadways within the vicinity of the generator but require a diversion from that roadway to another roadway to gain access to the site. L\-Grolecl G~Ip\~o0a 015-Velm Olrt-Freeatona DFF YELM II LLC-Yelm~TraMrc lmpaR Analyau DOc Scott Griffin, Member FREESTONE DFF YELM II, LLC August 25, 2004 Page -5- J~~, Ins,, Captured Trips: Site trips shared by more than one land use in a multi-use development. Primary (New) Trips: Trips made for the specific purpose of using the services of the project. Trip Generation The proposed Yelm Plat project is expected to generate the vehicular trips during the average weekday, road traffic AM and PM peak hours as shown in Table 2. The trip generation for the project is calculated using trip rates from the Institute of Transportation Engineers (ITE) Trip Generation, Seventh Edition, 2003 for Single Family Detached Housing (ITE Land Use Code 210). All site trips made by all vehicles for all purposes, including commuter, visitor, and service and delivery vehicle trips are included in the trip generation values. Trips generated by residential projects are considered new. Based on our analysis, the trips generated by Yelm Plat project are calculated to be 51 trips during the PM peak hour. During the PM peak hour 63% of the trips would be entering and 37% would be exiting the development. Trip Distribution Figure 6 shows the project generated trips assigned to the adjacent street network. The distribution is based on past projects located in the vicinity of the proposed project. The project generated trip distribution is also based on the characteristics of the street network and the location of likely trip origins and destinations (residential, employment, shopping, social and recreational opportunities). HORIZON YEAR CONDITIONS "WITH" THE PROJECT Traffic Volumes Figure 7 shows the 2009 PM peak hour traffic volumes "with" the proposed project at the analysis and site access intersections. The site generated PM peak hour traffic volumes shown on Figure 6 were added to the projected background traffic volumes shown on Figure 5 to obtain the Figure 7 volumes. Level of Service Table 1 shows the calculated LOS for the horizon year (2008) "with" and "without" project conditions at the pertinent intersection. Based on our analysis the 1St St. N./Rhoton Rd. S.E., Railway Rd. S.E./Middle Rd. S.E. and 100 Way S.E./Grove Rd. S.E. intersections would operate at LOS 'C' or better for both "with" and "without" project conditions. The SR 507/SR 510 (1St St. S.E.) intersection would operate at LOS'E' for both the "with" and the "without" project conditions. The analyzed intersections meet the City standards. C \-Pro~e0. Flef\200d 015 ~ Yelm Plat-Fee>lone DFF rELM it uc reimvren~c imwn maws me JTEy ins. Scott Griffin, Member FREESTONE DFF YELM II, LLC August 25, 2004 Page -6- Site Access The proposed project would provide access onto Middle Rd. Southeast. The site access intersection is expected to operate at LOS 'A' for northbound left turn and eastbound movements. AGENCY TRAFFIC IMPACT MITIGATION REQUIREMENTS The City of Yelm requires a traffic impact fee for new developments based on the number of PM peak hour trips generated. The current fee is $750.00 per trip. The Yelm Plat project is expected to generate 51 new PM peak hour trips. Therefore, the City traffic mitigation fee would be $38,250. The proposed site access will need to be constructed in conformance with City of Yelm standards. Also the site frontage will need to be constructed to applicable Agency requirements. SUMMARY, CONCLUSIONS AND RECOMMENDATIONS This report analyzed the traffic impact of the proposed 50 lot Yelm Plat project located at 16440 Middle Rd. Southeast in the City of Yelm. Traffic data was collected and/or obtained at the pertinent street intersection identified for analysis. Future horizon year traffic volumes were derived using a growth factor. Level of service analyses were performed for existing and projected future horizon traffic volumes. The evaluation of the traffic impact of the proposed project included adding project generated traffic to the future traffic volume projections and calculating the level of service. The "with" project traffic operations were then compared to the "without" project operations. The comparison of traffic operations "with" and "without" the project identified that the project would not cause a significant adverse affect on the operation of the study intersections. Based on our analysis we recommend that the Yelm Plat project be allowed with the following traffic impact mitigation measures. 1. Construct site in accordance with applicable City requirements. 2. Construct site access connection to Middle Rd. S.E. in accordance with City standards. \\Entneer]\c\-Rgaq FiNa~OW 015 ~ YMm GLI ~ Fra®mm DFG Y[LM II LLC YNm\iraMK ImpGtt M~Mn Eac Scott Griffin, Member FREESTONE DFF YELM II, LLC August 25, 2004 Page -7- 3. Payment of a $38,250 Traffic Impact Fee to the City of Yelm. No other traffic mitigation should be necessary. Please contact me at (206) 762-1978 or email me at jaketraffic@comcast.net if you have any questions. Sincerely, ,. MJJ: cw 1.) Mark J. Jacobs, P.E., P.T.O.E., President JAKE TRAFFIC ENGINEERING, INC C\'agacl FibaV00~D15-Yalm Pal-heeston~UFE YELM II. LIC Y>Im\T~~flic lmp~q M~lysn COc EXPIRES 4/3/C;~ JT~j InC~ PM PEAK HOUR LEVEL OF SERVICE TABLE 1 YELM PLAT -YELM LEVEL II TRAFFIC IMPACT ANALYSIS INTERSECTION APPROACH EXISTING 2009 W/0 2009 W/ PROJECT PROJECT 1St St. S.E./ Overall D (50.7) E (73.2) E (74.2) SR 507 Rhoton Rd. S.E./ NB A (7.5) A (7.7) A (7.7) 1St St N E SB A (7.8) A (8.2) A (8.3) . . . WB B (11.5) B (14.7) C (15.2) Railway Rd. S.E./ EB A (7.3) A (7.3) A (7.3) Middle Rd. S.E. WB A (7.3) A (7.4) A (7.4) NB A (9.0) A (9.3) A (9.5) 100 Way S.E./ NBLT A (7.5) A (7.6) A (7.6) Grove Rd. S.E. EB A (9.0) A (9.5) A (9.5) Site Access/Middle NBLT - - A (7.4) I K(]. J. t. I tC5 I - I - I H ~J.1) I Number shown in parenthesis is the average control delay in seconds per vehicle for the intersection as a whole or approach movement, which determines the LOS per the Hi hwa Capacity Manual. O \-ROpd Fdn~00~ 015 - Y~Im Rp - Frwuon~ OFF YELM II. LLC - Yalm\Fn1IK ImWn M~Mn Ax ~9~"E, ~~:~. VEHICULAR TRIP GENERATION TABLE 2 YELM PLAT -YELM LEVEL II TRAFFIC IMPACT ANALYSIS TIME PERIOD TRIP RATE TRIPS ENTERING TRIPS EXITING TOTAL Single Family Detached Housing (RE Land Use Code 210, 50 lots) Average Weekday T = 9.57X 239 (50%) 239 (50%) 478 AM Peak Hour T = 0.75X 9 (25%) 29 (75%) 38 PM peak Hour T = 1.01X 32 (63%) 19 (37%) 51 T =trips X=#oflots(=50) A vehicle trip is defined as a single or one direction vehicle movement with either the origin or destination (existing or entering) inside the study site. The above trip generation values account for all the site trips made by all vehicles for all purposes, including commuter, visitor, recreation, and service and delivery vehicle trips C ~-ROiett cllea V OOd 015 - velm Glat ~ Fraeatona OFF YELM II. 1lC ~ IdIm~T~aXic ImOatt Analyaia Uoc Project: Yelm Plat Location: 16440 Middle Rd. S.E. Owner: Freestone DFF Yelm II, LLC NORTH m w ~, W ~ Q W YB v ~ ~ ~ ~ ~ m m a 337th St S 0 ag~ ~O S~ Y U c `+~ ~~ ~ ~ ~ T ~ ~O' Q' 57ra ~ ~ sr'~F a ~, a ~ ~y ~+ ~ Berry Valley Rd SE e4hR` ~~ ~~ ~ e ^~ ~°s~ A~ ~ `per <o ngmire St SE °~~ L- ® 'pa 5 cT I ~ ~F 9~ [ Re ~ R ~ ojec 1~ ~ ~ ~ ' vq ~ s~i NE 103rd Ave b SE 103rd A~'e ~ ~ ~ ~ ' Y 8nght m ~ ~~E q ~ ¢ 105th Way SE ~ Five Corners` 9~'('' D IY ~ ~ Hill Rd SE ~ ~ ~ a ~ 109th Ave SE ~ ~ v ~ m ~ ~ o ~ ~ ~ " crosc8 ~cr^. III r~ tits rcser: r.. 11 h i0 YELM PLAT -YELM ~~~, ~ ~~, LEVEL II TRAFFIC IMPACT ANALYSIS FIGURE 1 VICINITY MAP Project: Yelm Plat Location: 16440 Middle Rd. S.E. Owner: Freestone DFF Yelm II, LLC I Trail 1 : ~ 4 aon c ~/~. ,~L~ i ~~ A ~ Trg ' 4 f * ~ a FASa~ N ~ 1 ~ ~ 10 ~ ~ ~ -- al TM~ x ~ x s s •p~ ~ a' 4 ~ N ~ Cj ~ ~ ~ '3E .. I ~~ M f a ~ ~ ~ a< ~ ~ YELM PLAT -YELM JTE, ~ t"IiC. LEVEL II TRAFFIC IMPACT ANALYSIS FIGURE 2 SITE PLAN 0 z J o i l o ~ x ~ ~ ~ ~~ z i ~o / P~~~ Ci 2L 25 MPH / ~Q~ / ~ti5 / `L ~~ 510 ~,5 ~ i YELM 10o war sE i 5~ y< ~ 5, 3~ PROJECT w i ~s~ SITE ~' ,o ° ti ~ 0 c~ `~ f1 103RD AVE SE .~~ ~_ •~ KEY ~ STOP SIGN XX MPH POSTED SPEED LIMIT XL NUMBER OF ROADWAY LANES ~ APPROACH LANE & DIRECTION - - - RAILROAD TRACKS YELM PLAT -YELM ~I -~ ,~ ~, , LEVEL II TRAFFIC IMPACT ANALYSIS FIGURE 3 EXISTING CONDITIONS O ~ ~"~ t 1 0 / ~y r43 o i 08.07.02 x / WEDNESDAY ~ ~ y~ t.~p 1615-1715 ~°j~~~ Z ~ ' .y1py ~O ~~ 6 1 r 08.08.02 ~ ~P\~ ~ ~ THURSDAY ~~ 1700-1800 ~ 30 20 ~ A~ 510 ~1y~y i YELM 10o war sE iy~c ~/ i y~c ~ y~ PROJECT w i SITE `~ 0 0 c~ IV ~^'` °~ ~~~ ~~ ~~ 103RD AVE SE ~O 9~'P`~ ~s9~a ~ `7~ 18 "~ a ~ 08.05.02 p'~' ~Iy ~ MONDAY " A a 1630-1730 A~ 04.30.03 WEDNESDAY 1615-1715 KEY XX ~ - PM PEAK HOUR TRIP AND DIRECTION YELM PLAT -YELM 4 '~` ` =~ ~ LEVEL II TRAFFIC IMPACT ANALYSIS FIGURE 4 EXISTING PM PEAK HOUR TRAFFIC VOLUME 0 Nh ~1 O / ~~- r65 0 ~ / 5~ ao 40 40 / 45 / a~ t 510 /1y~5 / / YELM 10o wAr sE /y< ~/ ~`'~ PROJECT w / / 5 SITE o w O h ~Ahh o ~~~^ ~ ~~ 103RD AVE SE 's i'~~SV~ ~s~s `• " ~~~~ 1~p" s ~ ` 11 ~ 30 in o vo N ~~IQ~ ti KEY XX ~ - PM PEAK HOUR TRIP AND DIRECTION YELM PLAT -YELM ~~ _ ~ ~d, , LEVEL II TRAFFIC IMPACT ANALYSIS FIGURE 5 PROJECTED 2009 PM PEAK HOUR TRAFFIC VOLUMES W/O PROJECT z " / 1°~° o•- ~1 0 / ~~- r" o oS,y z / / ~~°y~ R,~~ ~o~ / ~P 0 ~ ~~ / 20 / / ss% / / / / 40 e /C ~~ bO~. /y 510 /,,e~ / 35°k / YELM ioo war sE /y~c f/ / 5~ '~ PROJECT e w / / a SITE ~ o so ~ y°~° w ~ 'o c~ ~'Y^ 00 ~~ ~ ~1 103RD AVE SE :a ~~ ~ ~.t ~o ti a KEY XX~ - PM PEAK HOUR YY% -TRIP DISTRIBUTION PERCENTAGE 51 TOTAL PM PEAK HOUR TRIPS 32 - ENTERING 19 - EXITING YELM PLAT -YELM ~~ "~ ; , ~ = ~ LEVEL II TRAFFIC IMPACT ANALYSIS FIGURE 6 PROJECT GENERATED PM PEAK HOUR TRAFFIC VOLUMES AND DISTRIBUTION KEY XX ~ - PM PEAK HOUR TRIP AND DIRECTION YELM PLAT -YELM -~_ ~ ~~ ~°° ~ LEVEL II TRAFFIC IMPACT ANALYSIS FIGURE 7 PROJECTED 2009 PM PEAK HOUR TRAFFIC VOLUMES W/ PROJECT Yelm Plat - Yelm 08/12/04 lst St. S.E./SR 507 11:37:05 Existing (1507EB) SIGNAL2000/TEAPAC[Ver 2.02.12] - Capacity Analysis Summary Intersection Averages for Int # 1 - Degree of Saturation (v/c) 0.73 Vehicle Delay 50.7 Level of Service D ------------ Sq 44 1 Phase 1 ------------ 1 Phase 2 ------------------------- 1 Phase 3 1 Phase 4 1 i + I+* I+ I 1 I + I + * 1 + I ++++1 I I I ~ I ++++1 I I**** ~ 1 I North i <* I + +>I I****> I I * I ++ I i**** I I * I ++ I I v I ----- ------------ ( G/C=0.165 ------------ 1 G/C=0.322 -------------------- 1 G/C=0.134 1 G/C=0.247 i I G= 19.8" I G= 38.6" ( G= 16.1" I G= 29.6" I I Y+R= 4.0" I Y+1~ 4.0" I Y+R= 4.0" I Y+R= 4.0" ( I OFF= 0.0~ ( OF'F=19.8 I OFF=55.3 1 OFF=72.0 I ------------- ------------ C=120 sec ------------ G=104.0 sec ------------ = 86.7 Y=16.0 sec = 13.3 Ped= 0. 0 sec = 0.0~ ----------------- I Lane ITiiidth/I ------------- g/C ---------------------------- @ r -------- l --- e 1 Group I Lanes) ----------------- Used Read ------------- E (Volume) v/c (vph) i @C ---------------------------- ay 1 De -------- I S --- ll IModel N Approach 49.5 D I RT 112/1 10.248 (0.489 1 652 1 774 1 43 10.056 1 16.1 1 B 1 36 fti I T8 112/1 10.389 10.322 1 339 1 599 1 529 10.883 I 53.1 1*D 1 783 ftl ~ lno ~n 375 255 aS a I 1 D ftl I 152 LT j 3t/i jv.~o~ ~v iv.+ i---------------------------c -- - _ - ~ ~ ~ ~- - -,------,-- _ - -- - - - S Approach 52.8 D IRT+TS i 12/1 10.388 10.322 1 337 1 595 I 521 10.876 1 52.2 ( D 1 767 ft) I LT 112/1 10.286 10.165 I 1 i 265 1 202 10.694 1 54.3 (*D 1 305 fti --------------------------------------------------------------------- E Approach 40.9 D+ IRT+TH 112/1 10.283 (0.247 1 41 ( 405 i 179 10.428 I 38.8 I D+I 232 ftl I LT 112/1 10.251 10.134 1 1 1 209 ( 60 10.253 1 47.2 I D 1 85 fti ---------------------------------------------------------------- R Approach 53.9 D IRT+iT ( 12/1 10.273 10.134 1 41 I 209 1 149 10.629 i 54.4 1*D 1227 ftl i------------------------------------------------------------------------------ Yelm Plat - Yelm 08/12/04 1st St. S.E./SR 507 11:37:15 Existing (1507ER) SIGNAL2000/TEAPAC[Ver 2.02.12] - Summary of Parameter Values Intersection Parameters for Int # 1 - METROAREA NonCBD NETWORK North 0 0 0 0 0 0 0 Def No LOS Targets 35 80 5 NETWORK East 0 0 0 0 0 0 0 Def No 90 100 5 NETWORK South 0 0 0 0 0 0 0 Def No Priorities 0 0 0 0 0 0 NETWORK Nest 0 0 0 0 0 0 0 Def No NODELOCATION 0 0 Approach Parameters APPLABELS N E S W GRADES 0.0 0.0 0.0 0.0 PEDLEVELS 0 0 0 0 BIKEVOLUMES 0 0 0 0 PARICINGSIDES None None None None PARKVOLUI4ES 20 20 20 20 BUSVOLI7MES 0 0 0 0 RIGHTTURNONREDS 0 0 0 0 iTPSTREAMVC 0.00 0.00 0 .00 0.00 Movement Parameters BLS RT TH LT VOLiA~S 41 503 104 WIDTHS 12.0 12.0 12.0 ~gS 1 1 1 GROUPTYPES Norm Norm Norm UTILIZATIONS 0.00 0.00 0.00 TRUQCPERCENTS 2.0 2.0 2.0 PEAKHOURFACTORS 0.95 0.95 0.95 ARRIVAI~YPES 3 3 3 ACTUATIONS Yes Yes Yes REQCLEARANCES 4.0 4.0 4.0 ~ 5.0 5.0 5.0 Sl~ltClurLV~= 2.~ 2.~ 2.~ ENDGAIN 2.0 2.0 2.0 STORAGE 0 0 0 INITIAI.QUEUE 0 0 0 IDEALSATFLOiTS 1900 1900 1900 FACTORS 1.00 1.00 1.00 DELAYFACTORS 1.00 1.00 1.00 NSTOPFACTORS 1.00 1.00 1.00 SATURATIONFIAWS 1583 1863 1770 Phasing Parameters SEQUENCES 44 ALL pERMISSIVES No No O~R~pS Yes Yes CYCLES 120 120 GREErTTII~S 19.75 3 8.60 YELI,OWTIl~S 4.00 4.00 CRITICALS 9 2 RT TH LT 103 67 57 0.0 12.0 12.0 0 1 1 Norm Norm Norm 0.00 0.00 0.00 2.0 2.0 2.0 0.95 0.95 0.95 3 3 3 Yes Yes Yes 4.0 4.0 4.0 5.0 5.0 5.0 "n ~,n ?,n 2.0 2.0 2.0 0 0 0 0 0 0 1900 1900 1900 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 0 1694 1770 No No Yes Yes 30 16.05 29.59 4.00 4.00 12 11 RT TH LT 22 473 192 0.0 12.0 12.0 0 1 1 Norm Norm Norm 0.00 0.00 0.00 2.0 2.0 2.0 0.95 0.95 0.95 3 3 3 Yes Yes Yes 4.0 4.0 4.0 5.0 5.0 5.0 ?_A 9.A 2.0 2.0 2.0 2.0 0 0 0 0 0 0 1900 1900 1900 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 0 1850 1770 RT TH LT 219 95 142 0.0 12.0 12.0 0 1 1 Norm Norm Norm 0.00 0.00 0.00 2.0 2.0 2.0 0.95 0.95 0.95 3 3 3 Yes Yes Yes 4.0 4.0 4.0 5.0 5.0 5.0 2.0 2.0 2.0 2.0 2.0 2.0 0 0 0 0 0 0 1900 1900 1900 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 0 1668 1770 LEADLAGS OFFSET PEDTIME None None 0.00 1 0.0 0 Yelm Plat - Yelm 08/12/04 1st St. S.E./SR 507 11:36:08 without Project (1507W0) SIGNAL2000/TEAPAC[Ver 2.02.12] - Capacity Analysis Summary Intersection Averages for Int # 1 - Degree of Saturation (v/c) 0.89 Vehicle Delay 73.2 Level of Service E ------------ Sq 44 I Phase 1 ------------ 1 Phase 2 ------------------------- 1 Phase 3 1 Phase 4 1 -- **/** ------------ ------------ --------------------A-- I + I++ I+ i I I + 1 + + i + 1 ++++1 I I I v 1 ++++1 I ^ 1**** v 1 1 North 1 <* I * *>) I****> I I I * I ** i 1**** 1 I * I ** 1 1 v 1 ----------- ------------ 1 G/C=0.137 ------------ I G/C=0.368 -------------- I G/C=0.113 I G/C=0.248 I 1 G= 16.4" 1 G= 44.2" 1 G= 13.6" I G= 29.8" ( I Y+R= 4.0" I Y+R= 4.0" I Y+R= 4.0" I Y+R= 4.0" ( ( OFF= 0.0~ 1 OFF=17.0 I OFF=57.2 I OFF=71.8$ I ---------- ------------ C=120 sec ------------ G=104.0 sec --------- = 86.7 Y=16.0 sec = 13.3 PBd= 0.0 sec = 0.0~ 1 Lane (Width/I g/C ln @ r l e I Group I Lanesl ----------------- IIsed Regd ------------- mel v/c E IVo (vph) I @C ---------------------------- ay i I De d S (Model N Approach 58.5 E+ I RT 112/1 10.258 10.515 1 705 ( 815 1 79 10.097 1 14.9 I B+1 64 ftl I TH i 12/1 (0.442 10.368 1 473 I 686 1 663 10.966 1 63.4 ( E+11053 ftl , .. ,, ~ .. .,~~ ~ ~ , ~-, ~ ~~ a ~ '17d 10.719 ~ , I 59.5 I E+ 1 273 ft l _ S Approach 81.9 F (RT+TH 1 12/1 10.451 10.368 1 468 1 680 1 679 10.999 1 72.0 1*E 11130 ftl 1 LT 1 12/1 10.297 (0.137 I 1 1 214 1 242 11.000 1109.6 I*F 1 466 ftl ---------------------------------------------------------- E Approach 44.3 D+ IRT+TH i 12/1 10.303 10.248 I 48 1 407 1 253 10.602 ( 42.3 I D+1 344 fti 1 LT 112/1 10.255 10.113 I 1 1 171 I 79 10.395 1 50.7 I D 1117 ftl ----------------------------------------------------------- W Approach 97.7 F IRT+TH 112/1 10.366 (0.248 ( 47 ( 404 I 416 10.998 1 88.5 I*F 1 741 ftl I LT 1 12/1 10.286 10.113 ( 1 I 171 I 200 11.000 1 116.8 (*F ( 395 ftl --------------------------------------------------------- Yelm Plat - Yelm 1st St. S.E./SR 507 Without Project (1507W0) SIGNAL2000/TEAPAC[Ver 2.02.12] - Summary of Parameter Values 08/12/04 11:36:14 Intersection Parameters for Int # 1 - 0 0 0 0 0 0 Def No ~~O~ly NonCBD NETWORK North 0 0 0 0 0 0 0 0 Def No LOS Targets 35 80 5 NETWORK East 0 0 0 0 0 0 0 Def No 90 100 5 NSTWORR South Priorities 0 0 0 0 0 0 NETWORK West 0 0 0 0 0 0 0 Def No NODELOCATION 0 0 Approach Parameters W APPLABELS N E 0 0 S 0.0 0.0 GRADES 0.0 . 0 0 pEDLEVELS 0 0 0 0 BIKEV~OLIA~S PARKINGSIDES 0 None 0 None None None PARKVOLiA4ES 20 20 20 20 0 BIISVOLU~S 0 0 0 0 0 RIGHTTURNONREDS 0 0 00 0 00 0 0.00 UPSTREAMVC 0.00 . . Movement Parameters MOVI.ABELS RT TH LT VOLiA~S 75 630 165 WIDTHS 12.0 12.0 12,0 LANES 1 1 1 GROUPTYPES Norm Norm Norm pTILIZATIONS 0.00 0.00 0.00 TRUCKPERCENTS 2.0 2.0 2.0 PEAK~iOURFACTORS 0.95 0.95 0.95 ARRIVAI,TYPES 3 3 3 ACTUATIONS Yes Yes Yes REQCLEAItANCES 4.0 4.0 4.0 ~p~S 5.0 5.0 5.0 START[JPLOST 1. U L . u ~ . v ENDGAIN 2.0 2.0 2.0 STORAGE 0 0 0 INITIAI.QiJBtJE 0 0 0 IDEALSATFLOWS 1900 1900 1900 FACTORS 1.00 1.00 1.00 DELAYFACTORS 1.00 1.00 1.00 NSTOPFACTORS 1.00 1.00 1.00 SATVRATIONFI.OWS 1583 1863 1770 Phasing Parameters SEQUENCES 44 ALL PERMISSIVES No No OVERLAPS Yes Yes CYCLES 1 20 120 GREENTII~S 16. 44 44.18 yEI,I,OW~PII~S 4. 00 4.00 CRITICALS 9 8 RT TH LT 145 95 75 0.0 12.0 12.0 0 1 1 Norm Norm Norm 0.00 0.00 0.00 2.0 2.0 2.0 0.95 0.95 0.95 3 3 3 Yes Yes Yes 4.0 4.0 4.0 5.0 5.0 5.0 L.V G.V i•v 2.0 2.0 2.0 0 0 0 0 0 0 1900 1900 1900 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 0 1694 1770 No No Yes Yes 30 13.59 29.79 4.00 4.00 12 11 RT TH LT 35 610 230 0.0 12.0 12.0 0 1 1 Norm Norm Norm 0.00 0.00 0.00 2.0 2.0 2.0 0.95 0.95 0.95 3 3 3 Yes Yes Yes 4.0 4.0 4.0 5.0 5.0 5.0 2.n ~.n ?_A 2.0 2.0 2.0 0 0 0 0 0 0 1900 1900 1900 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 0 1848 1770 RT TH LT 260 135 190 0.0 12.0 12.0 0 1 1 Norm Norm Norm 0.00 0.00 0.00 2.0 2.0 2.0 0.95 0.95 0.95 3 3 3 Yes Yes Yes 4.0 4.0 4.0 5.0 5.0 5.0 7,A 2.0 2.0 2.0 2.0 2.0 0 0 0 0 0 0 1900 1900 1900 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 0 1679 1770 LEADLAGS OFFSET PEDTII4E None None 0.00 1 0.0 0 Yelm Plat - Yelm 08/12/04 11:35:27 1st St. S.E./SR 507 With Project (1507WP) SIGNAL2000/TEAPAC[Ver 2.02.12] - Capacity Analysis Summary Intersection Averages for Int # 1 - Degree of Saturation (v/c) 0.90 Vehicle Delay 74.2 Level of Service E ------------ Sq 44 1 Phase 1 ------------ 1 Phase 2 --------------------- 1 Phase 3 1 Phase 4 1 --- ------------ ~ A ---- I 1 + + + I + + i + I I + I ++++I I i I v ~ ++++i 1 I .- ~**** v I i i I North I <* ****> I i * *>I I I I * 1 ** **** I 1 I I * I ** 1 1 v 1 -------- ------------ i G/C=0.136 ------------ 1 G/C=0.368 ------------ I G/C=0.113 I G/C=0.250 I I G= 16.4" ( G= 44.1" I G= 13.5" I G= 30.0" I I Y+R= 4.0" I Y+R= 4.0" I Y+R= 4.0^ I Y+R= 4.0" I I OFF= 0.0$ I OFF=17.0 1 OFF=57.1$ I OFF=71.7$ I ----------- C=120 sec ------------ G=104.0 sec -------------- = 86.7$ Y=16.0 sec = 13.3 Ped= 0.0 sec = 0.0~ I Lane---(width/1 --g/------ --- C d ---------------------------- I service Rate) Adj ( h) @E 1Volumel v/c @C (v --- - I H~ i 1 Delay I L I Queue I S 1Mode1 11 1 Group I Lanesl ----------------- Regd Use ------------- p I ---------------- N Approach 59.7 E+ I RT 112/1 10.258 10.514 i 703 1 814 1 79 10.097 968 685 1 663 10 1 15.0 I I 63.8 I B+1 64 ft) E+11055 ftl I TH 112/1 10.442 10.368 . .., i. ... •~o~ i n ~ ~a - I 471 i t 1 1 213 1 186 10.772 1 64..3 I E+1 298 ftl !---~1---!-j-'i-' ------,----- ----------------------------- --------- ------------ S Approach 83.1 F 1RT+TH 112/1 10.451 10.368 I 467 I 679 I 681 (1.003 i 73.2 1*E 11139 ftl i LT 1 12/1 10.297 10.136 I 1 1 213 1 242 (1.004 1110.9 1*F 1468 ft1 ----------------------------------------------- E Approach 44.7 D+ __ IRT+TH 112/1 10.307 10.250 I 54 I 410 ( 263 (0.622 I 42.8 1 D+) 360 ftl I LT 1 12/1 10.256 (0.113 i 1 1 170 i 80 10.402 I 50.8 I D 1 119 fti -------------------------------------------- W Approach 98.8 F iRT+TH 112/1 10.368 10.250 ( 53 1 407 1 421 11.002 1 89.5 1*F 1 753 ft) 1 LT 112/1 10.286 10.113 I 1 1 170 I 200 11.005 1 118.3 I*F 1397 ftl ---------------------------------------------- o8/iz/oa Yelm Plat - Yelm 11:35:33 1st St. S.E./SR 507 With Project (1507WP) SIGNAL2000/TEApAC[Ver 2.02.12] - Summary of Parameter Values Intersection Parameters for Int # 1 - 0 0 0 0 0 0 0 Def No METROAREA NonCBD NETWORK North 0 0 0 0 0 0 0 Def No L03 Targets 35 80 5 NETWORK East th S 0 0 0 0 0 0 0 Def No 90 100 5 0 0 0 0 ou NETWORK t 0 0 0 0 0 0 0 Def No Priorities 0 0 Np~7,0 ATION 0 Approach Parameters S W APPLABELS N 0 0 E 0. 0.0 0.0 GRADES . 0 0 PEDLEVELS 0 0 0 0 BIKEVOLUMES 0 None None None None PARKI1dGSIDES 20 20 20 PARKVOLUMES 20 0 0 0 BUSVOLUMES 0 0 0 0 RIGHTTURNONREDS 0 00 0 0.00 0.00 UPSTREAMVC 0.00 . Movement Parameters gEi,g RT TH LT VOLUi~S 75 630 177 WIDTHS 12.0 12.0 12.0 LEES 1 1 1 GROUpTYPES Norm Norm Norm UTILIZATIONS 0.00 0.00 0.00 TRUCKPERCENTS 2.0 2.0 2.0 PEAKHOURFACTORS 0.95 0.95 0.95 ARRIVALTYPES 3 3 3 ACTUATIONS Yes Yes Yes REQCLEARANCES 4.0 4.0 4.0 MINIl4~S 5.0 5.0 5.0 START iJYi,~ra ., .. ~ . •• ~ ~ •.. ~ n . g.NDGAIN 2.0 2.0 2.0 STORAGE 0 0 0 INITIALQUEUS 0 0 0 IDg.ALSATFLOW5 1900 1900 1900 gp~TORS 1.00 1.00 1.00 DELAYFACTORS 1.00 1.00 1.00 NSTOPFACTORS 1.00 1.00 1.00 SATURATIONFIAWS 1583 1863 1770 Phasing Parameters SEQUENCES 44 ALL PgRMISSIVES No No ~RLApS Yes Yes CYCLES 1 20 120 ~~~5 16. 37 4 4.13 YgLip~~S 4. 00 4.00 CRITICALS 9 8 RT TH LT 153 97 76 0.0 12.0 12.0 0 1 1 Norm Norm Norm 0.00 0.00 0.00 2.0 2.0 2.0 0.95 0.95 0.95 3 3 3 Yes Yes Yes 4.0 4.0 4.0 5.0 5.0 5.0 ?_n ~_0 2.0 2.0 2.0 2.0 0 0 0 0 0 0 1900 1900 1900 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 0 1692 1770 No No Yes Yes 30 13.53 29.97 4.00 4.00 12 11 RT TH LT 37 610 230 0.0 12.0 12.0 0 1 1 Norm Norm Norm 0.00 0.00 0.00 2.0 2.0 2.0 0.95 0.95 0.95 3 3 3 Yes Yes Yes 4.0 4.0 4.0 5.0 5.0 5.0 2.0 2.0 2.0 2.0 2.0 2.0 0 0 0 0 0 0 1900 1900 1900 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 0 1847 1770 RT TH LT 260 140 190 0.0 12.0 12.0 0 1 1 Norm Norm Norm 0.00 0.00 0.00 2.0 2.0 2.0 0.95 0.95 0.95 3 3 3 Yes Yes Yes 4.0 4.0 4.0 5.0 5.0 5.0 2.0 2.0 2.0 2.0 2.0 2.0 0 0 0 0 0 0 1900 1900 1900 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 0 1681 1770 OO LEADLAGS OFFSET PEDTII+~ None None 0.00 1 0.0 0 os/12/04 Yelm Piat - Yelm ~ ~ n ~ ~- 11:33:12 1st St. S.E./SR 507 P~ ~„~~~~~~-,.,...~ Gy With SIGNAI,2000/TgApAC[Ver 2.02.12] - Capacity Analysis Summary Intersection Averages for Int ~ 1 - of Service D+ Degree of Saturation (v/c) 0.78 Vehicle Delay 44.8 Level Sq 44 ~--Phase 1 Phase-2--1- ~ -phase-3--1--phase-4--1 -- **/** ---------- 1 + -- 1 + + + I ,. 1 + I ++++{ + 1 + + + 1 + I <++++1 1 ° i i .. ~ . ~.}.} v i ~.+++ v I I ~* North 1 ~ <+ **>1 * 1****> 1 I**** * + * 1 I i I i * 1 i + * * Im I G/(~0.125 .402 1 I G/C~ G C=0.042 I G/C=0.298 1 / 7^ I 35 ^ 1 G= 15.0^ ^ I G= 48.3^ I 0^ I Y+~ 4 . I G= G= 5.0 Y+I~ 4.0" I Y+R~ 4.0^ I { Y+1~ 4.0 1 OFF= 0.0~ . I 1 Ogg=15.9$ i OF8`-59.4~ I OgP~66.9$ I 0=120 sec ----------- G=104.0 sec = -------- 86.7 Y=16.0 sec = 13.3$ P ew 0.0 sec 0.0~ - y~1e --(Width/I 1 g/C ----~ -Service Rate] Adj 1 v c j @8 I Volume 1 / Dea y i s lM odelel~ ~ 1 Lanes I R~egd IIsed i @C (vph) 40.9 D+ N Approach 1 RT i 12/1 10.258 10.477 1 756 1 79 10.104 1 629 1 663 10 885 1 17.3 45.6 I B I 1 D 1 69 938 ftl ft1 . ..,i, .n eat io d02 1 Tn- ~ ~~i + ~ 0.123 10.125 12/1 1 . 1 563 I 749 ( 1 189 I 273 1 186 1 u , 055 j -- ,,, ~,. • -' ------- ~ ~ ----- ,»~ --" ----- pf-~ _ _ --- - LT I i ------------- --------------------------- -- --- 50.7 D S Approach IRT+TH 112/1 10.451 10.402 1 198 1 280 ~ 292 j0.837 ~ 52.3 1*D i 348 ftl LT -~ 12/1- I 10 165-10 125- I------~--------------------- ------- ----- ---- -- -- 34.5 C g Approach IRT+TH 1 12/1 10.307 (0.298 1 233 1 500 1 280 10 430 I 71 29.3 1*C+I 398 fti 12,1- i i LT !0 025-10 042- . I--115-i- 1 -I-------------- ------ ------ ---- ---- - --- -- 47.4 D yP Approach (RT+TH 1 12/1 10.368 10' 649 i 200 10 6 I 38.2 I*D+i 257 ft1 1 LT 112/1 042 10-050 10. . 1 181 I 29 I ------ ------- - Yelm Plat - Yelm 08/12/04 1st St. S.E./SR 507 11:34:07 Aith Project (1507NP) SIGNAL2000/TEAPAC[Ver 2.02.12] - Summary of Parameter Values Intersection Parameters for Int # 1 - MSTROAREA NonCBD NETWORK North 0 0 0 0 0 0 0 Def No LOS Targets 35 80 5 NETWORK East 0 0 0 0 0 0 0 Def No 90 100 5 NETWORK South 0 0 0 0 0 0 0 Def No Priorities 0 0 0 0 0 0 NETWORK Nest 0 0 0 0 0 0 0 Def No NODELOCATION 0 0 Approach Parameters APPLABELS N E S N GRADES 0.0 0.0 0.0 0.0 PEDLEVELS 0 0 0 0 BIREVOLUMES 0 0 0 0 PARKINGSIDES None None None None PARRVOL~lE3 20 20 20 20 BUSVOLIA4ES 0 0 0 0 RIGHTTURNONREDS 0 0 0 0 UPSTREAMVC 0.00 0.00 0.00 0.00 Movement Parameters MOVLABELS RT TH LT RT TH LT RT TH LT RT TH LT VOLUMES 75 630 177 153 97 76 37 610 230 260 140 190 WIDTHS 12.0 12.0 12.0 0.0 12.0 12.0 0.0 12.0 12.0 0.0 12.0 12.0 LANES 1 1 1 0 1 1 0 1 1 0 1 1 GROUPTYPES Norm Norm Norm Norm Norm Norm Norm Norm Norm Norm Norm Norm UTILIZATIONS 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 TRUCKPERCENTS 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0 PEARHOURFACTORS 0.95 0.95 0.95 0.95 0.95 0.95 0.95 0.95 0.95 0.95 0.95 0.95 ARRIVALTYPES 3 3 3 3 3 3 3 3 3 3 3 3 ACTUATIONS Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes REQCLEARANCES 4.0 4.0 4.0 4.0 4.0 4.0 4.0 4.0 4.0 4.0 4.0 4.0 MINIMfA~1.S 5.0 5.0 5.0 5.0 5.0 5.0 5.0 5.0 5.0 5.0 5.0 5.0 3TARTUPIAST 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0 ENDGAIN 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0 2.0 STORAGE 0 0 0 0 0 0 0 0 0 0 0 0 INITIALQUEUE 0 0 0 0 0 0 0 0 0 0 0 0 IDEALSATFLOWS 1900 1900 1900 1900 1900 1900 1900 1900 1900 1900 1900 1900 FACTORS 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 DELAYFACTORS 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 NSTOPFACTORS 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 SATORATIONFIA~WS 1583 1863 1770 0 1692 1770 0 1847 1770 0 1681 1770 Phasing Parameters SEQUENCES 44 ALL PERMISSIVES Yes Yes Yes Yes LEADLAGS None None OVERLAPS Yes Yes Yes Yes OFFSET 0 .00 1 CYCLES 120 120 30 PEDTIME 0.0 0 GREENTII~3 15.03 48.26 5.00 35.70 YELLOWTIMES 4.00 4.00 4.00 4.00 CRITIGALS 9 8 6 11 TWO-WAY STOP CONTROL SUMMARY eneral Information ite Information alyst gency/Co. ate Performed na sis Time Period Chris Valdez JTE, INC 08/10/2004 PM ak ntersection ulisdiction alysis Year 1st St. S.E./Rhonton Rd. Yelm Existing ro'ect Descri lion Yelm Plat 1 RHO East/West Street: 1st St. S.E> orth/South Street: Rhonton Rd. S.E. ntersection Orientation: North-South tud Period hrs : 0.25 ehicle Volumes and Ad'ustments a or Street Northbound Southbound ovement 1 2 3 4 5 6 L T R L T R olume 0 193 74 3 162 0 eak-Hour Factor, PHF 0.95 0.95 0.95 0.95 0.95 0.95 ourly Flow Rate, HFR 0 203 77 3 170 0 ercent Heavy Vehicles 0 - - 0 - - edian T pe Undivided T Channelized 0 0 nes 0 1 0 0 1 0 onfiguration LTR LTR stream Si nal 0 0 inor Street Westbound Eastbound ovement 7 8 9 10 11 12 L T R L T R olume 43 0 1 0 0 0 eak-Hour Factor, PHF 0.95 0.95 0.95 0.95 0.95 0.95 ou Flow Rate, HFR 45 0 1 0 0 0 ercent Heavy Vehicles 0 0 0 0 0 0 ercent Grade (°r6) 0 0 laced Approach N N torage 0 v T Channelized 0 0 anes 0 1 0 0 0 0 onfi uration LTR ela Queue Len h, and Level of Service proach NB SB Westbound Eastbound ovement 1 4 7 8 9 10 11 12 are Configuration LTR LTR LTR (vph) 0 3 46 (m)(vph) 1420 1294 597 /c 0.00 0.00 0.08 5°k queue length 0.00 0.01 0.25 ontrol Delay 7.5 7.8 11.5 OS A A B proach Delay - - 11.5 proach LOS - - B `y~ Copyright ~ 2000 University of -ds, All Rights Reserved Version 4.Ic file:l/C:1Documents%20and%20SettingslOwnerlLocal%20Settings\Temp\u2k19C.tmp 8/10/2004 TWO-WAY STOP CONTROL SUMMARY eneral Information ite Information nalyst gency/Co. ate Performed alysis Time Period Chris Valdez JTE, 1NC 08/10/2004 PM peak ntersecction urisdiction alysis Year S ESt. N.E./Rhonton Rd. Yelm Without Project ro'ect Descri tion Yelm Plat 1 RHOWO ast/West Street 1st St. N.E. orth/5outh Street: Rhoton Rd. S.E. ntersection Orientation: North-South d Period hrs : 0.25 ehicle Volumes and Ad'ustments 'or Street Northbound Southbound ovement 1 2 3 4 5 6 L T R L T R olume 0 305 115 5 240 0 eak-Hour Factor, PHF 0.95 0.95 0.95 0.95 0.95 0.95 ourly Flow Rate, HFR 0 321 121 5 252 0 ercent Hea Vehicles 0 - - 0 - - edian Type Undivided T Channelized 0 0 anes 0 1 0 0 1 0 onfi uration LTR LTR stream Si nal 0 0 inor Street Westbound Eastbound ovement 7 8 9 10 11 12 L T R L T R olume 65 0 1 0 0 0 eak-Hour Factor, PHF 0.95 0.95 0.95 0.95 0.95 0.95 ourl Flow Rate, HFR 68 0 1 0 0 0 ercent Hea Vehicles 0 0 0 0 0 0 ercent Grade (%) 0 0 tared Approach ~~ "~ forage 0 0 T Channelized 0 0 nes 0 1 0 0 0 0 onfi uration LTR eta Queue Len hand Level of Service pproach NB SB Westbound Eastbound ovement 1 4 7 8 9 10 11 12 ane Configuration LTR LTR LTR (vph) 0 5 69 (m)(vph) 1325 1129 440 /c 0.00 0.00 0.16 5% queue length 0.00 0.01 0.55 ontrol Delay 7.7 8.2 14.7 OS A A B ppn~ach Delay - - 14.7 proach LOS - - B ~J file)/C:\Documents%20and%20Settings\Owner\Local%20Settings\Temp\u2k1B0.tmp 8/10/2004 TWO-WAY STOP CONTROL SUMMARY eneral Information ite Information 1st St. N.E./Rhonton Rd. alyst Chris Valdez ntersection S.E. gency/Co. JTE, INC urisdiction Yelm ate Performed 08/10/2004 nalysis Year ~thoelt.Project nalysis Time Period PM peak ro"ect Descri lion Yelm Plat 1 RHOWO ast/West Street 1st St. N.E. orth/South Street: Rhoton Rd. S.E. ntersection Orientation: North-South tud Period hrs : 0.25 ehicle Volumes an d Ad'ustments 'or Street Northbound Southbound ovement ~ 2 3 4 5 T 6 R L T R L olume PHF eak-Hour Factor 0 0.95 305 0.95 134 0.95 6 0.95 240 0.95 0 0.95 , ourl Flow Rate, HFR 0 321 141 6 252 0 ercent Hea Vehicles 0 - - 0 edian T pe Undivided T Channelized 0 1 0 0 anes 0 1 0 0 onfi uration LTR LTR stream Si nal 0 0 inor Street Westbound Eastbound ovement 7 8 9 10 11 12 L T R L T R olume PHF eak-Hour Factor 76 0.95 0 0.95 2 0.95 0 0.95 0 0.95 0 0.95 , ourl Flow Rate, HFR 80 0 2 0 0 0 ercent Heavy Vehicles 0 0 0 0 0 0 ercent Grade (°~) 0 D urea Apps uaci-i •"~ N torage 0 0 T Channelized 0 0 anes 0 1 0 0 0 0 onfi uration LTR eta Queue Len hand Level of S ervice proach NB SB Westbound Eastbound ovement 1 4 7 8 9 10 11 12 ane Configuration LTR LTR LTR (vph) 0 6 82 (m)(vph) 1325 1110 435 /c 0.00 0.01 0.19 5°~ queue length 0.00 0.02 0.69 ontrol Delay 7.7 8.3 15.2 OS A A C proach Delay - - 15.2 pproach LOS - - C > ~1,~ file://C:\Documents%20and%20Settings\Owner\Local%20Settings\Temp\u2klAD.tmp 8/10/2004 TWO-WAY STOP CONTROL SUMMARY ~ ,p~nfermatien (Site Information al st Chris Valdez ntersection iddle/Railwa enc /Co. TE, INC ulisdiction Yelm ate Pertormed 8/10/2004 na sis Year istin na sis Time Period M ak r 'ect Desch tion Yelm Plat MRRREX ast/V11est Street: Raihnra Rd. S.E. orth/South Street: Middle Rd. S.E. ntersection Orientation: East-Wesf tud Period hrs : 0.25 ehicie Volumes and Ad'ustments a'or Street Eastbound Westbound ovement 1 2 3 4 5 6 L T R L T R olume 0 30 20 6 30 0 eak-Hour Factor, PHF 0.95 0.95 0.95 0.95 0.95 0.95 ourl Flow Rate, HFR 0 31 21 6 31 0 ercent Hea Vehicles 0 - - 0 - - edian T pe Undivided T Channelized 0 0 anes 0 1 0 0 1 0 onfi uration LTR LTR stream Si nal 0 0 inor Street Northbound Southbound ovement 7 8 9 10 11 12 L T R L T R olume 21 0 3 0 0 0 eak-Hour Factor, PHF 0.95 0.95 0.95 0.95 0.95 0.95 ourl Flow Rate, HFR 22 0 3 0 0 0 ercent Hea Vehicles 0 0 0 0 0 0 ercent Grade (%) 0 0 idi~1 rrpNivBia`~ it :' Storage 0 0 T Channelized 0 0 anes 0 1 0 0 0 0 onfi uration LTR la Queue Len hand Level of Service proach EB WB N orthbound Southbound ovement 1 4 7 8 9 10 11 12 ane Configuration LTR LTR LTR (vph) 0 6 25 (m)(vph) 1595 1567 930 Ic 0.00 0.00 0.03 5°~ queue length 0.00 0.01 0.08 ntrol Delay 7.3 7.3 9.0 OS A A A proach Delay - - 9.0 proach LOS - - ! A HCS2 p p~nN Copyright O 2000 University of Florida, All Righu Reserved file://C:~Documents%20and%20Settings\Owner~I.oca1%20SettingslTemp\u2k1B5.tmp Version 4.1 c 8/10/2004 TWO-WAY STOP CONTROL SUMMARY ~ enera~ ~nrormauon ........_...._ _ _ na st Chris Valdez ntersecfion iddle/Railwa en /Co. TE, INC urisdiction Yelm ate Performed 8/10/2004 a sis Year ~ti-out Pro ect alvsis Time Period M ak file://C:\Documents%20and%20Settings\Owner\Local%20Settings\Temp\u2k1B5.tmp 8/10/2004 TWO-WAY STOP CONTROL SUMMARY ~ ~ _ .a.. L.i..~...~t^.,n eneral Inivrrnauvn --- -•------------- a st Chris Valdez ntersection iddle/Railwa en /Co. TE, INC urisdiction Yelm ate Performed 8/10/2004 nal sis Year nth Pro ect a sis Time Period M eak ro ect uescn non rernr nei mrZn~rrr East/V11est Street Raihva Rd. S.E. orth/South Street: Middle Rd. S.E. ntersection Orientation: East-West tud Period hrs : 0.25 ehicle Volumes and Ad'ustments a'or Street Eastbound Westbound ovement 1 2 3 4 5 ti L T R L T R olume 0 40 65 11 40 0 eak-Hour Factor, PHF 0.95 0.95 0.95 0.95 0.95 0.95 ourl Flow Rate, HFR 0 42 68 11 42 0 ercent Heavy Vehicles 0 - - 0 - edian T pe Undivided T Channelized 0 0 anes 0 1 0 0 1 0 onfiguration LTR LTR stream Si nal 0 0 iaor Street Northbound Southbound ovement 7 8 9 10 11 12 L T R L T R olume 52 0 5 0 0 0 eak-Hour Factor, PHF 0.95 0.95 0.95 0.95 0.95 0.95 ourly Flow Rate, HFR 54 0 5 0 0 0 ercent Hea Vehicles 0 0 0 0 0 0 ercent Grade (%) 0 0 .. , ------~ Icll Cu hN~lt maw ~ N . N 0 Storage 0 T Channelized 0 0 anes 0 1 0 0 0 0 onfi uration LTR ela Queue Len and Level of Service proach EB WB Northbound Southbound 4 7 8 9 10 11 12 ovement ane Configuration 1 LTR LTR LTR (vph) 0 11 59 (m)(vph) 1580 1493 862 Ic 0.00 0.01 0.07 5% queue length 0.00 0.02 0.22 ontrol Delay 7.3 7.4 9.5 OS A A A pmach Delay - - 9.5 pproach LOS - - 1 A HCS2000T~ Copyright ©2000 University of Florida, All Rights Reserved Version 4.1 c file://C:1Documents%20and%20Settings\OwnerlLocal%20Settings\Temp\u2k1B5.tmp 8/10/2004 TWO-WAY STOP CONTROL SUMMARY eneral Information ite Information alyst gency/Co. ate Performed al sis Time Period Chris Valdez JTE, INC 08/10/2004 PM ak ntersection urisdiction alysis Year 100/Grove Yelm Foisting ro'ect Descri tion Yelm Plat 100GREX ast/West Street 100 Wa S.E. orth/South Street Grove Rd. S.E. ntersection Orientation: North-South tud Period hrs : 0.25 ehicle Volumes and Ad'ustments or Street Northbound Southbound ovement 1 2 3 4 5 6 L T R L T R olume 27 151 0 0 103 0 eak-Hour Factor, PHF 0.95 0.95 0.95 0.95 0.95 0.95 ou Flow Rate, HFR 28 f 58 0 0 108 0 ercent Heavy Vehicles 0 - - 0 - - edian T Undivided T Channelized 0 0 anes 0 1 0 0 1 0 onfi oration LT TR stream Si nal 0 0 inor Street Westbound Eastbound ovement 7 8 9 10 11 12 L T R L T R olume 0 0 0 2 0 18 eak-Hour Factor, PHF 0.95 0.95 0.95 0.95 0.95 0.95 ourl Flow Rate, HFR 0 0 0 2 0 18 ercent Heavy Vehicles 0 0 0 0 0 0 ercent Grade (%) 0 0 tared Approach N N torage 0 u T Channelized 0 0 anes 0 0 0 0 1 0 onfi oration LTR eta Queue Len and Level of Service proach NB SB Westbound Eastbound ovement 1 4 7 8 9 10 11 12 ane Configuration LT LTR (vph) 28 20 (m) (vph) 1495 911 /c 0.02 0.02 5% queue length 0.06 0.07 ontrol Delay 7.5 9.0 OS A A proach Delay - - 9.0 proach LOS - - 1S A Copyright O 2000 University of Florida, All Rights Reserved Version 4. ]c file://C:\Documents%20and%20Settings\Owner\Local%20Settings\Temp\u2k1BS.tmp 8/10/2004 TWO-WAY STOP CONTROL SUMMARY eneral Information ite Information alyst Chris Valdez ntersection 100/Grove gency/Co. JTE, !NC 2004 /10 urisdiction nalysis Year Yelm Without Project ate Performed / 08 al sis Time Period PM eak ro'ect Descri lion Yelm Plat 100GRW0 ast/West Street: 100 Wa S.E. orth/South Street: Grove Rd. S.E. ntersection Orientation: North-South tud Period hrs : 0.25 ehicle Volumes and Ad'ustments 'or Street Northbound Southbound ovement 1 2 3 4 L 5 T 6 R L T R olume 45 200 0 0 135 0 eak-Hour Factor, PHF 0.95 0.95 0.95 0.95 0.95 0.95 ou Flow Rate, HFR 47 210 0 0 142 0 ercent Heavy Vehicles 0 - - 0 - edian T Undivided T Channel'¢ed 0 0 apes 0 1 0 0 1 0 TR onfiguration LT stream Si nal 0 0 inor Street Westbound Eastbound ovement 7 8 9 10 11 12 ~ T R L T R olume 0 0 0 5 0 30 eak-Hour Factor, PHF 0.95 0.95 0.95 0.95 0.95 0.95 ourl Flow Rate, HFR D 0 0 5 0 31 ercent Heavy Vehicles 0 0 0 0 0 0 ercent Grade (%) 0 0 tared Approach N N torage ~ n " T Channel'IZed 0 0 nes 0 0 0 0 1 0 nfiguration LTR eta Queue Len hand Level of Service proach NB SB Westbound Eastbound ovement 1 4 7 8 9 10 11 12 ane Configuration LT LTR (vph) 47 36 (m) (vph) 1453 836 /c 0.03 0.04 5°k queue length 0.10 0. i3 ontrol Delay 7.6 9.5 OS A A proach Delay - - 9.5 proach LOS - - A Copyright O 2000 Unive s`ty of Florida, All Rights Reserved Version 4.1c file://C:\Documents%20and%20Settings\Owner\Local%20Settings\Temp\u2k1B5.tmp 8/10/2004 TWO-WAY STOP CONTROL SUMMARY eneral Information ite Informafion nalyst gency/Co. ate Performed na sis Time Period Chris Valdez JTE, INC 08/10/2004 PM ak ntersection utisdiction alysis Year 100/Grove Yelm Wth Project ro'ect Descti lion Yelm Plat 1OOGRWP astlWest Street: 100 Wa S.E. orth/South Street: Grove Rd. S.E. ntersection Orientation: North-South to Period hrs : 0.25 ehicle Volumes and Ad'ustments 'or Street Northbound Southbound ovement 1 2 3 4 5 6 L T R L T R olume 55 200 0 0 135 0 eak-Hour Factor, PHF 0.95 0.95 0.95 0.95 0.95 0.95 ourl Flow Rate, HFR 57 210 0 0 142 0 ercent Hea Vehicles 0 - - 0 - - edian T pe Undivided RT Channelized 0 0 nes 0 1 0 0 1 0 onfi uration LT TR stream Si nal 0 0 inor Street Westbound Eastbound ovement 7 8 9 10 11 12 L T R L T R olume 0 0 0 5 0 37 eak-Hour Factor, PHF 0.95 0.95 0.95 0.95 0.95 0.95 ourl Fkwv Rate, HFR 0 0 0 5 0 38 ercent Heavy Vehicles 0 0 0 0 0 0 ercent Grade (%) 0 0 laved Approach N N torage v " T Channelized 0 0 apes 0 0 0 0 1 0 onfi uration LTR ela Queue Len and Level of Service pproach NB SB Westbound Eastbound ovement 1 4 7 8 9 10 11 12 ane Configuration LT LTR (vph) 57 43 (m)(vph) f453 843 Ic 0.04 0.05 5% queue length 0.12 0.16 ontrol Delay 7.6 9.5 OS A A proach Delay - - 9.5 proach LOS - - A > ~ Copyright O 2000 Um , of Florida, Alt Rights Reserved Version 4.Ic file://C:\Documents%20and%20Settings\Owner\Local%20Settings\Temp\u2k1B5.tmp 8/10/2004 TWO-WAY STOP CONTROL SUMMARY eneral Information ite Information alyst gency/Co. ate Performed al sis Time Period Chris Valdez JTE, INC 08/10/2004 PM eak ntersection urisdiction nalysis Year Site Access/Midd/e Yelm nth Project Pro'ect Descri tion Yelm Plat SAMRWP ast/West Street: Site Access orth/South Street: Middle Rd. S.E. ntersection Orientation: North-South tud Period hrs : 0.25 ehicle Volumes and Ad'ustments or Street Northbound Southbound ovement 1 2 3 4 5 6 L T R L T R olume 10 45 0 0 55 21 eak-Hour Factor, PHF 0.95 0.95 0.95 0.95 0.95 0.95 ourl Flow Rate, HFR 10 47 0 0 57 22 ercent Heavy Vehicles 0 - - 0 - - edian T pe Undivided T Channelized 0 0 nes 0 1 0 0 1 0 onfiguration LT TR U stream Si nal 0 0 inor Street Westbound Eastbound ovement 7 8 9 10 11 12 L T R L T R olume 0 0 0 12 0 7 eak-Hour Factor, PHF 0.95 0.95 0.95 0.95 0.95 0.95 ours Flow Rate, HFR 0 0 0 12 0 7 ercent Heavy Vehicles 0 0 0 0 0 0 ercent Grade (%) 0 0 tared Approach N N torage u ~ T Channelized 0 0 anes 0 0 0 0 1 0 onfi uration LTR eta Queue Len th and Level of Service proach NB SB Westbound Eastbound ovement 1 4 7 8 9 10 11 12 ane Configuration LT LTR (vph) 10 19 (m)(vph) 1532 905 lc 0.01 0.02 5% queue length 0.02 0.06 ontrol Delay 7.4 9.1 OS A A pproach Delay - - 9.1 proach LOS - - /~" A Copyright ~ 2000 University of Florida, All Rights Reserved Version 4.Ic file://C:1Documents%20and%20Settings\Owner\Local%20SettingslTemp\u2k1B5.tmp 8/10/2004 ~~~ T~ ~ FAX TRANSMISSION CITY OF YELM p, COMMUNITY DEVELOPMENT DEPARTMENT PO BOX 479 -105 YELM AVE W YELM WA 98597 (360) 458-3835 FAX: (360) 458-3144 • fln MIAHNIMOTON TO: Mark Jacobs DATE: APRIL 29, 2004 FAX #: 206-762-1978 PAGES: 2, including this cover sheet. FROM: Jim Gibson Development Review Engineer SUBJECT: Griffin Plat for Parametrix COMMENTS: I have mailed out the TLA for Willow Glenn Phase 2 for your information. I have also included a Trip Dristribution with this fax from the Willow Glenn Phase 2 project. One piece of information that is not included in the TIA is the pipeline projects. They are Willow Glenn Ph 2 (441ots), Cherry Meadows Subdivison (2021ots), Yelm Terra (971ots), Mountain Sunrise (103 lots) and Yelm School Expansion on Middle Road. Please call if you have anv puestions or concerns. l9 ** IF YOU DO NOT RECEIVE ALL COPIES, OR ANY COPY IS NOT LEGIBLE, PLEASE CALL (360) 458-3835 As sooty As PossIBLE. [k~curncnt I Jim Gibson From: Mark Jacobs, PE, PTOE [jaketraffic@comcast.net] Sent: Tuesday, June 01, 2004 8:28 AM To: Jim Gibson, PE Cc: Scott Griffin; Cathie Carlson Subject: yelm plat Jim You requested that the "pipeline" projects data be incorporated into the traffic impact analysis. Please provide the "pipeline" traffic data for the following projects. Alternatively the location and number of lots (how much more school space) could be provided and the traffic will be manually assigned. -Willow Glenn Phase II ~ -Cherry Meadows Subdivision / -Yelm Terra ~ -Mountain Sunrise po /~uT' 17V tlu D C, . I need to wrap up this report and plan on completing the report next week. My engineer will be on vacation the week after next, thus the push to get it done. Contact me if you have any questions. Mark Mark J Jacobs, PE, PTOE, President JAKE TRAFFIC ENGINEERING, INC 77318th Ave SW Seattle, WA 98106 phone/fax 206.762.1978 Vigil ~nF_7gA SRAM Z~ 6/8/04 0 0 \ i i~ ~ `. -o SLOP ~8 HEATH & ASSOCIATES, INC TRIP DISTRIBUTION -PROJECT TRAFFIC Transportation and Civil Engineering FIGURE 4 J K~ U 0 J ~I N. ~- L J i~ H W a H Z /W+ V~y/ ii W A. Z O M m s a ~" N_ V .~. Y. ~" J Q Z ~." i W C 0 a 0 a J J O N W U U Q H O .:~ ~ jaa ~Ze ~:b ;id a~ =~~ G ,X_a ~~ ~ `;~k i ''s .'~... , a C 22~ c ~gP 5 1__ W ~~ z y H I ~+ ~ ~J ~~~ ~~ S ~6- ~~ O ~ O ~ ~.7 ~ ~~~ '0.1 r~J ~a~~ e \ c~ r ~~ ~ e~OPO ~1J ~\O~~ ~_ (/) RD 0 u r~ 0 0 ~c-~ ~ ~° ~ ~O Q r (~ m ~~ J o~~ ~J P~ a~ ~-~° ~ ono ~r~~ ~ .. ~ ~ ~~ ~ ~ ~ .. ~ m ~ ~ ~`, .. G ^ v r ~ I V o / V ~ r ~ ~r~ .,~ ~~o ~v ... ~rl r~ rr ~<< J Q~ NOlOH?~ ~~ \a J ~2~ P r~ ~ ~~ ~a~~ra J ~J ` o -f~ `~! ~~ ~ ,~~v~ 0 ti a ¢ J F-- ~ ~ ~ W ,v U ~ `~ Z Q ~ a z ~ ' W ' , N dZ o ~ s~,~o~~ Z~ ~Ot ZO/7,7./80 ~ M Q ~ ~ ~ w ~ ~ z ~ a r Q ~ O ~- x ~ ~ ~ > w Q cv ~ ~ ~ ~ ~ O zo = z ~ Q, F- YQ ~ ~ N ~ w w ~ ~ ? ~ ~ Z ~ ` w C~ ~ ~ ~ ~ Q U ~ Z ~ ~ ~ w ~ ~' a - - z z w ~ ~ w o ~ ~ Z a O ... ~ ~ W ~' ~ ~ ~ _ D ~ C3. n~ m ~. ~o H ~ ~~ t N ~ ~ ~~ ~3x ~_ ~ T O " m N J t~ W~ _ Nv v o~° mm ~Vo~ m~ ~~ ~~~ ~= J I ~ ~O P~~ 32!(iJl~ ~;Jlh~~ Yelm Subdivision Transportation Impact Study Yelm, WA n May 12, 2003 ~~ jransportation Engineering Northwest, LLC Page 10 SEPA NO: 0175 MITIGATED DETERMINATION OF NONSIGNIFICANCE Proponent: Description of Proposal Location of the Proposal Freestone DFF Yelm II LLC Subdivide 17.45 acres into 50 single-family residential lots. The project includes the construction of stormwater facilities, interior streets, and street improvements to Middle Road SE. The project site is located on the south side of Middle Road SE, 16440 Middle Road. Section/Township/Range: Section 19, Township 17 North Range 2 East, W.M. Threshold Determination: The City of Yelm as lead agency for this action has determined that this proposal does not have a probable significant adverse impact on the environment. Therefore, an environmental impact statement (EIS) will not be required under RCW 43.21C.030(2)(c). This decision was made after review of a completed environmental checklist and other information on file with the lead agency. This information is available to the public on request. I~UIlU1llUll,%IVllll(~cIIIIIC~] IVIedSUIeS. JEE %il l/11~1"ICU Lead agency: City of Yelm Responsible Official: Grant Beck, Community Development Director March 21, 2005 April 4, 2005 April 11, 2005 Community Development Director This Mitigated Determination of NonSignificance (MDNS) is issued pursuant to Washington Administrative Code 197-11-340 (2). Comments must be submitted to Tami Merriman, Community Development Department, at City of Yelm, 105 Yelm Avenue West, P.O. Box 479, Yelm, WA 98597, by April 4, 2005, at 5:00 P.M. The City of Yelm will not act on this proposal prior April 11, 2005, at 5:00 P.M. You may appeal this determination to the Yelm Hearing Examiner, at above address, by submitting a written appeal no later than April 11, 2005 at 5:00 P.M. You should be oreaared to make specific factual objections. Contact Grant Beck, Community Development Director, to learn more about the procedures for SEPA appeals. This MDNS is not a permit and does not by itself constitute project approval. The applicant must comply with all applicable requirements of the City of Yelm prior to receiving construction permits which may include but are not limited to the City of Yelm Comprehensive Plan, Zoning Code (Title 17 YMC), Critical Areas Code (Chapter 14.08 YMC), Storm water Drainage Design and Erosion Control Manual (DOE), Uniform Building Code, State Environmental Policy Act (SEPA) (Title 14 YMC), Road Design Standards, Platting and Subdivision Code (Title 16 YMC), and the Shoreline Master Program. DO NOT PUBLISH BELOW THIS LINE Published: Nisqually Valley News, Friday, March 25, 2005 Posted in public areas: Tuesday, March 22, 2005 Copies to: All agencies/citizens on SEPA mailing list and adjacent property owners Dept. of Ecology w/checklist ATTACHMENT SEPA Case Number 0175 Findings of Fact This Mitigated Determination of Non Significance is based on the project as proposed and the impacts and potential mitigation measures reflected in the following environmental documents: • Environmental Checklist (dated October 15, 2004, prepared by Parametrix) • Traffic Impact Analysis (dated August 25, 2004, prepared by Jake Traffic Engineering, Inc.) • Traffic Impact Analysis Addendum Letter (dated March 3, 2005, prepared by Jake Traffic Engineering, Inc.) • Preliminary Drainage Report (dated September 2004, prepared by Parametrix) 2. The property was originally two parcels of land approximately 8'/2 acres and 10 acres in area, the larger of which was occupied by a single family dwelling. A boundary line adjustment in January 2005 changed the parcel configurations, leaving the house on a small parcel and the 17.45 acre parcel subject to this subdivision application. SEPA Rules indicate a project is not categorically exempt from threshold determination i~yuiienieni5 ii ii is d segrneni of a proposal That includes a series of actions, physicany or functionally related to each other, some of which are categorically exempt and some of which are not [WAC 197-11-305 (1)]. 4. The traffic impact analysis (TIA) submitted as part of the subdivision application indicates that the project will generate an average of 478 vehicle trips per day, with a PM peak of 51 vehicles per hour. The TIA indicates that, with average growth: • The signalized intersection of Yelm Avenue and 1St Street (SR 507 and SR 510) will be at a Level of Service (LOS) E, both with and without project conditions. • The intersection of 1St Street and Rhoton Road will be at a LOS C or better with or without project conditions. • The intersection of Railway Road SE and Middle Road will be at a LOS C or better with or without project conditions. • The intersection of 100th Way and Grove Road SE will be at a LOS C or better with or without project conditions. 5. The TIA addendum indicates that the stopping site distance and entering site distance from the proposed intersection of the subdivision road with Middle Road to the curve in Middle Road meet the AASHTO requirements fora 25 mph design speed. Middle Road, pusuant to the Yelm Development Guidelines standards, has a design speed of 30 MPH. This speed requires a stopping site distance of 200 and an entering site distance of 335. The City of Yelm has adopted a concurrency management system as required by the Growth Management Act. Chapter 15.40 YMC (concurrency Management) is designed to ensure that the improvements required to support development are available at the time of development. A concurrency determination may be issued for a proposal as it relates to transportation issues when: the development provides on-site frontage improvements; the project makes off-site improvements as necessary to provide for the safe movement of traffic; and the project makes a contribution to projects identified the six year transportation improvement program in the form of a Transportation Facilities Charge. The Growth Management Act at Section 36.70.070 (6)(b) RCW states that a finding of concurrency can be issued when required improvements are in place at the time of development or that a financial commitment is in place to complete the improvements or strategies within six years. Middle Road is currently a substandard road, with the exception of half-road improvements located in front of the Willow Glenn Subdivision. Frontage improvements, if based on the revised boundary lines of the original parcels will create a disconnected drive lane from Fort Stevens Elementary to Prairie Creek Estates with partial, full improvements. The series of actions by the developer, the boundary line adjustment followed by a subdivision, unless addressed through the State Environmental Policy Act, allow the development to not meet concurrency requirements for transportation improvements by avoiding the improvement of Middle Road along the smaller parcel. 9. The property is bordered on the south side by Yelm Creek, which is listed as a Shoreline of the State. There is a flood zone area adjacent to Yelm Creek, which encompasses the creek and its associated wetlands, and extends over 100 feet above the Shoreline Jurisdiction area. Section 15.32.280 prohibits construction of residential structures, or any construction that results in any increase in flood levels. 10. Chapter14.12 YMC requires the dedication of open space for all residential development. Section 14.12.050 YMC lists four (4) attributes for qualification of open space. 11. The Yelm School District has adopted a school mitigation requirement based on the demand that new residential units create for additional school services and facilities. Additional demands on the school system will be mitigated through the requirement that the developer enter into a mitigation agreement with the District. Mitigation Measures The developer shall mitigate transportation impacts based on the new residential P.M. peak hour trips generated by the project. The Transportation Facility Charge (TFC) shall be based on 1.01 new peak hour trips per residential unit. The proponent will be responsible for a TFC of $757.50 per dwelling unit which is payable at time of building permit. 2. Prior to final subdivision approval, the developer shall complete the following transportation improvements: a. The South half of Middle Road shall be improved to City Standards for a Neighborhood Co/lector from the Northwest property line to the Southeast property line, including the road frontage for the lot with the existing single family residence. Additional right-of-way may be required for frontage improvements. b. The developer shall construct internal streets to City Standards for Local Access Residential. c. The developer shall provide for the continuation of streets, by connecting internal streets to the residential subdivision to the west. d. The existing single family home may retain one driveway entrance on Middle Road, with a recorded agreement between the property owner, developer, and City that the driveway enirdnce be ieiucdiec9 iv iiie new ~iai inieinai sii~Gi iFU iai~i iiian v ycais nuii"i iiia udic o~ recording. The agreement shall provide for driveway removal from Middle Road and restoration to City standards. 3. The developer shall protect the Flood Hazard Zone area, by assuring that encroachments shall not result in any increase of flood levels. The flood hazard zone area, and the Shoreline jurisdiction area shall be dedicated as open space. Protective fencing shall be installed at the flood zone area during all construction. 4. Temporary erosion control systems to be approved by the City of Yelm. The developer shall enter into an agreement with Yelm Community Schools to mitigate project impacts to the School District. Mitigation Measures The developer shall mitigate transportatnsn impacts based on the new residential P.M. pea 5 our 1. ortation Facility Charge (TFC) shall be based on ~ 60 trips generated by the project. The Tra p er residential unit. The proponent will be responsible for a TFC of new peak hour trips p per dwelling unit which is payable at time of building permit. 2. Prior to final subdivision approval, the developer shall complete the following transportation improvements: line, including the road a. The South half of Middle Road sh el~beineto the Southeast property or a Neighborhooa be Collector from the Northwest prop y frontage for the lot with the existing single family residence. Additional right of-way m y required for frontage improvements. b. The developer shall construct internal streets to City Standards for Lotinl internastre'ets to I c. The developer shall provide for the continuation of streets, by connec g the residential subdivision to the west. d. The existing single family home may retain one driveway entrance on Middle Road, with a recorded agreement between the property owner, developer, and City that the driveway Idl II IICI I lGl 5ll CCl I IU IcllCl ll Icll I O yCdl J II UI I I ll IC UdIC UI eflUclll(:e fJe I~IUC:c1leU LU IIIG flew {J recording. The agreement shall provide for driveway removal from Middle Road an restoration to City standards. . The developer shall protect the Flood Hazare flood hazard zone area,tand the Shorel nes shall 3 not result in any increase of flood levels. Th jurisdiction area shall be dedicated as open space. Protective fencing shall be installed at the flood zone area during all construction. erosion control systems to be approved by the City of Yelm. 4_ Temporary The develo er shall enter into an agreement with Yelm Community Schools to mitigate project 5. p impacts to the School District. ~* oearawr-PPreeD rom: Pluolrov-s<Drr ur Irsr-~av-cnr-uR sDmwlnr-~ aE,r-aey+IcaolaEC,l Pnrmeer. 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DA D GN CN CN D _9 ` 01-19-OS LPG G .q0 No. DRANM APPROVED 257-4812-001 SW a D _~ to m O ~ Z z ~i O Preliminarfy Plat of Griffin Place Yelm, Washington RENSIONS City of Yelm Community Development Department P.O. Box 479 Yelm, WA 98597 (360) 458-3835 (360) 458-3144 FAX Memorandum To: SPRC From: Roberta Allen, Administrative Assistant Date: April 12, 2005 Re: APP-OS-0112-YL -Project Review for Griffin Subdivision Appeal Attached is the application packet for the above referenced project. After your initial review of the information submitted, if you need additional information from the applicant, please let me know as soon as possible. The following is the tentative review schedule for the project. I:\APP Appeal\OS-0112 Griffin Subdivision\Proj Rev Date Memo.doc City of Yelm Community Development Department NOTICE OF APPEAL Fee: Staff Decision - $50.00 Hearing Examiner Decision - $100.00 (In addition, any professional service charges per Resolution #358) ~e~er v ~~ APR p 5 ZOp5 A Closed record appeal may follow either an open record hearing or an open record administrative decision on a project permit application when the appeal is on the record, and no or limited new evidence or information is allowed to be submitted. Appeals on Category I & II project decisions are heard by the City Council. Appeals on Category III & IV project decisions as well as Category I & II decisions which have been appealed to the City Council go to Superior Court and follow the judicial review process set forth in RCW 366.70C. A Notice of Appeal must be filed within 14 days of Notice of Final Decision. PROJECT CASE NUMBER BEING APPEALED SEPA: 0175 DATE OF NOTICE OF FINAL DECISION March 21, 2005 APPELLANT(S) Freestone DFF Yelm II, LLC through William Lynn Mailing Address Gordon, Thomas, Honeywell, etal P.O. Box 1157 City, State and Zip Tacoma, WA 98401 Telephone 253-620-6416 EMAIL wlynn@GTH-Law. com SPECIFIC ITEMS OF DECISION BEING APPEALED (attach additional sheet if necessary): Set forth in the attached letter I affirm that all answers, statements and information contained in and submitted with this application are complete and accurate to the best of my knowledge. I also affirm that I am the owner of the subject site or am duly authorized by the owner to act with respect to this application. Further, I grant permission from the owner to any and all employees and representatives of the City of Yelm and other governmental agencies to enter upon and inspect said property as reasonably necessary to process this applica{io gree to pay all fees of the City that apply to this application. T ~ /o~' Si ned Date • 4~ Fee Date Received By `3'L File No. ~- 105 Yelm Avenue West (360) 458-3835 PO Box 479 (360) 458-3144 FAX Yelm, WA 98597 www.ci.yelm.wa.us LAW OFFICES CORDON, THOMAS, HONEYWELL, MALANCA, PETERSON ~ DAHEIM LLP TACOMA OFFICE 1201 PACIFIC AVENUE. SUITE 2200 POST OFFICE BOX 1157 TACOMA. WASHINGTON 98401-I 157 ~253> 620-6500 FACSIMILE (25.3) 620-6565 REPLY TO TACUMA OFFICE WILLIAM T. LYNN ATTORNEY AT LAW DIRECT (253) 620-6x16 )206) 676-6416 E-MAIL lynnw~gth-law.com SEATTLE OFFICE ONE UNION SOUARE 600 UNIVERSITY, SUITE 2100 SEATTLE, WASHINGTON 98101-4185 (206) 676-7500 FACSIMILE (2061 676-7575 Apri14, 2005 Grant Beck Community Development Director City of Yelm 105 Yelm Avenue West P.O. Box 479 Yelm, WA 98597 RE: SEPA Appeal Dear Mr. Beck: This letter provides the basis for the appeal of the MDNS for the plat of Griffin Place. The MDNS was issued March 21, 2005, and a copy is attached to this letter. The Appellant challenges Mitigation measure 2(d) and alleges the following errors: L The condition is imposed on unexisting single-family lot that is not part of the proposed subdivision. Therefore, the City has no authority to impose any conditions. 2. The current use of the existing single-family home that is the subject of Mitigation measure 2(d) will not be altered by the approval of the subdivision, thus there is no impact that may be "mitigated" under the authority of RCW 43.21C Chapter and the implementing City code provisions. WAC 197-11-660(d) "Responsibility for implementing mitigation measures may be imposed upon applicant only to the extent attributable to the identified adverse impacts of its proposal." 3. RCW 43.21C.060 only permits the imposition of mitigation measures that mitigate "specific adverse environmental impacts which are identified in the environmental documents" prepared under SEPA. Mitigation measure 2(d) does not meet this requirement. 4. RCW 43.21C.060 also requires that any conditions be based upon policies identified by the local government as a basis for the exercise of its mitigation authority. Moreover, under WAC 197-11-660(b), any such policy that is relied upon must be identified in writing. Mitigation measure 2(d) does not meet these requirements. [1306075 vl.doc] GORDON, THOMAS, HONEYWELL MALANCA, PETERSON F~ DAHEIM LLP April 4, 2005 Page 2 5. RCW 43.21C.060 and WAC 197-11-660(c) requires that mitigation measures be reasonable and capable of being accomplished. For the reasons cited above, and for the additional reason that the subject property is not within the ownership and control of the Appellant, Mitigation measure 2(d) does not meet this requirement. 6. The Mitigation measure 2(d) is arbitrary and capricious and contrary to law. Very truly yours, ~~ ,, I William T. L}~rm WTL:gam Attachments [1306075 vl.doc]