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Case Law 001WA ST 43.21 C.060, Chapter supplementary--Conditioning or denial of govemmental action Page 1 *36021 WEST'S REVISED CODE OF WASHINGTON UNANNOTATED TITLE 43. STATE GOVERNMENT--EXECUTI V E CHAPTER 43.21C. STATE ENVIRONMENTAL POLICY Current with al[ 20041egislation 43.21C.060. Chapter supplementary-- CondiGoning or denial of governmental action The polioies and goals set forth in this chapter aze supplementary to those set forth in existing authorizations of all branches of govemment of [hie state, including state agencies, municipal and public corporations, and counties. Any govemmental action may be conditioned or denied pursuant [o this chapter: PROVIDED, That such conditions or denials shall be based upon policies identified by the appropriate govemmental authority and incorporated into regulations, plans, or wdes which are formally designated by the agency (or appropriate legislative body, in the case of local govemment) as possible bases for the exercise of authority pursuant to this ohapter. Such designation shall occur at the time specified by RCW 43.21C.120. Such action may be conditioned only [o mitigate specific adverse environmental impaots which aze identified in the environmental documents prepared under this chapter. These conditions shat] be stated in writing by the decisionmaker. Mitigation measures shall be reasonable and capable of being accomplished. 1n order to deny a proposal under this chapter, ao agency must Snd that (1) The proposal would result in significant adverse impacts identi&ed in a final or supplemental environmental impact statement prepazed under this chapter, and (2) reasonable mitigation measures are insufficient to mitigate the identified impact. Exoep[ for permits and variances issued pursuant to chapter 90.58 RCW, when such a govemmental aotion, not requiring a legislative decision, is wnditioned or denied by a nonelected official of a local govemmental agency, the decision shall be appealable to the legislative authority of the acting local govemmental 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 govemmental agency. CREDIT(S) Q983 c [ ]7 § 3; 1977 ezs- c 278 § 2; [ 9]/ eas. c /09 § 6J Current with all 20041egislalion O 2005 West, a Thomson business. No claim to original U.S. Govt. works. l \ I fJ- 750 P.2d 651, 50 Wn.App. 723, Unlhnited v. Kitsap County, (Waeh.App. Div. 2 1988) Page 1 *651 750 P.2d 651 50 Wn.App. 723 Court of Appeals of Washington, Division 2. Property interest can be exacted without compensation only upon proper exercise of government police power; such power is pmpedy exercised in zoning situations where prohlem to be remedied by exaction arises from development under covsideratioq and exaction is reasonable and for legitimate public purpose. UNLIMITED, a co-ownership consisting of [he following individuals: Winfred 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 wrporation; Kenneth Berg and Joan Berg, husband and wife; Shirley Carlson and Johu 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 pemrit. The Superior Court, Pierce County, William L. Brown, k., !., dismissed actioq and developers appealed. The Court of Appeals, Worswiek, 1, held that: Q) county's exaction of commeroia] access easement to commercially land-locked parcel ae condition to developer's planned unit development case invalid, and (2) requirement that developers dedicate etdp of property along sou[hem portion of its properly for further extension of road as condition for issuance of planned unit development pemu[ was invalid. Reversed. West Headnotes [1] Eminevt Domain C°~-'2Q2) 148 ---- 148I Nalnre, Extent, and Delegation of Power 148k2 What Constitutes a Taking; Police and Other Powers Distinguished l48k2(I) In General; Interference with Property Rights 1481d(1.2) Relating to Zonurg, Planning, or Land Use. [2] Zoning and Planning ~+- 382.6 4l4 --- 4l4VIII Permits, Certificates and Approvals 414VID(A) In General 414k382.1 Maps, Plate, or Plane, Conditions and Agreements 414k382.6 Other Conditions or Agreements. (Formerly 414k382.1) Couvty's exaction of coremtemial access easement to commercially land-locked pares] as condition to developer's planned unit development was invalid; there was no expectation that owners of land-locked parcel would develop property a[ same time as planned unit development. [3] Zonng end Planning ^4>382.2 4l4 ---- 4l4 VIH Pemtite, Certificates and Approvals 414VIll(A) Iu General 414k382.1 Maps, Plats, or Plans, Conditions and Agreements 414k382.2 Streets, Improvements, and Utilities. County's requ¢emen[ that developers dedicate strip of property along southern portion of ifs properly for further extension of mad as condition for issuance of planned uvi[ development permit case invalid, absent showing that development would make mad extension necessary. *652 150 Wn.App. 7241 Joel H. Paget, Craig E. Schumaq Ryan, Swanson & Cleveland, Seattle, for appellants. Reiuitold P. Schuetz, Deputy Pros. Atty., Port Orchard, for Kitsap County. John F. Mitchell, Anva M. Laude, Sanchez, Paulson, Mitchell & Iaurie, Bremerton, for Berg & Carson. WORSWICK, Judge. ~ 2004 West, a Thomson business. No claim to original 115. Govt. works. 750 P.2d 651, 50 WaApp. 723, Unlimited v. Kitsap County, (Waeh.App. Div. 2 1988) Page 2 This litigation arose out of [he exaction by Kitsap County, without compensation, of two property interests as conditions for its issuance of a planned unit development pemut. 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 e writ of certiorari end their related complaint for declaratory relief and damages. We reverse, holding both exactions invalid. Unlimited owes a I t!2-acre parcel of land immediately northwest of the Cleaz Creek Road/ Randall Way intersection m Silverdale. This property is accessible @om both Clear Crcek Road and Randall Way. The Bergs and Carlsons own an B.5-acre parcel of property abutting Udimited'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/Cadson property, together with general awese rights ro Clear Creek Road, leaving Doty a 14-foot access N serve existing homes. Therefore, the Berg/Cazlson property is without any access of the kind that wonld 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 m early 1985 condemned a snip of property for the extension along Unlimi[ed's southern (Randall Way) boundary. A[ 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 m 1965, Unlirrdted submitted av application for a rezone and a planned unit development, intending to construct a convenience store on [he 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 conderun [he necessary property. At the hearing examiner's heating on Unlimited's application, a Berg/Carlson representative requested that the Berg/Cadson property be given a commercial access to Randall Way across Unlirrtited's property as a condition for approval. "653 The County's des¢e to ohtain more of UWimited's property for the western extension of Randall Way was also made known to the hearing examiner. The examiner recommended approval of Urilimited's applica[ioR but did not include either exaction as a condition. The Berg/Cadson interests appealed the hearing examiners decision to the Kitsap County Boazd of Commissioners. At the Boazd's public hearing, they argued that commercial access to their property was necessary to allow crzculatron of increased traffic anticipated from the furore commercial development of their property and surrounding properties. The County Engineer and Public Works Departrnent also rewmmended commercial access from Randall Way to Ore Berg/Cadson property to prevent sedovs traffic flow problems based on anticipated future development of the area The Board approved Unlimi[ed's application subject to two additional conditions: (Q that Unlimited dedicate a 50.foot public right-of-w¢y for commercial access m Randall Way from the Berg/ Carlson property, and (2) that Unlimited dedicate a snip of property along the southern portion of its property for the furore extension of Randall Way along the entire length of Unlimited's property to the west (see sketch). Unlimited would no[ be compensated for [50 Wn.App. 7271 either dedicadon. The necessary short plat required by the development was approved and the planned unit development pemtit case issued after UNimited agreed to these conditions under protest. TABULAR OR GRAPFIIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE The arbitrary and capricious teat applies to our review, and the precise issue before us is whether [he Kitsap County Corrrrrdssioners were arbitrary and capricious in exacting these conditions. Miller v. Port Angeles, 38 Wash.App. 904, 691 B2d 229, review dented, 103 Wash.2d 1024 (1964); 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 siNations when 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 aze met, the exaction is an unwnetim[iona] taking. Nollan v. Cal Jnrnia Coastal Comm'n, 493 U.S. ----, 107 S.Ct. 3141, 97 L.Ed.2d © 2004 West, a Thomson business. No claim to original I1.S. Gov[. works. 750 P.2d 651, 50 Wn.App. 723, Unlimited v. Kitsap County, (Wash.App. Div. 2 1988) Page 3 677 (1987); Miller v. Port Angeles, saps; Gerla v. Tacoma, 12 Waeh.App. 883, 533 P.2d 416,review deafer{ 85 Wash.2d 1011 (1975). Cf RCW 82.02.020; RCW 58.17.110; Kenarf & Assoc. v. Skagit Cy., 37 Wash.App. 295, 680 P.2d 439,review denied, 101 Wash.2d 1021 (1984). [2] The requirement of a wrmneroial access N serve the Berg/Cadson property does not even remotely satisfy these requirements. There is no expectation that the Berg/Cazlson property is to be developed at the same time as Unlimited's development oq for that matte; 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 ntanifestly unreasonable for Kitsap County to exact a cornmeroial access easement to this commeroially land-locked parcel as a condition to Unlimited's planned unit development. [3] [50 Wn.App. 7281 There ie nothing in the record before us to show that Unlintited's development will make extension of Randall Way necessary. To the contrary, dte record discloses that the County has no immediate plans for an extension. Rather, it intends m hold the exacted property until some undefined future time when Randall Way can be extended to connect with older, as ye[ inbuilt, roads. Tlus mteonrpeasated exaction, too, is invalid. Mr[ler v. Par[ Angeles, supra. See also J & B Dev. Co. v. King G}<, 29 Wash.App. 942, 949, 631 P.2d 1002, (1981), affil, 100 Waeh.2d 299, 669 P.2d 468 (1983). We find without merit ell contentions other than those discussed in this opinion. Reversed. REED, C.7., end ALEXANDER, 7., concur. 2004 West, a Thomson business. No claim to original U.S. Govt. works. 0.9 P.3d 860, L46 Wn.2d 685, Benchmark Land Co. v. City ofBattle Ground, (Wash. 2002) Page 1 *860 49 P.3d 860 10.6 Wald 685 Supreme Court of Washington, F.n Banc. The BENCANIARK LAND COMPANY, an Oregon limited liability company, Respondent, v. CITY OF BATTLE GROUND, Washington, a municipal corporation of the Slate of Washingtoq Petitioner. No. 70659-0. Joly 11, 2002. City required developer to make improvements [o street adjoining development as condition to iesuance of development pemtit. Developer brought action under Land Use Petition Act (LUPA) and sought damages. The Superior Court, Clark County, Barbara 7ohnsoq J., did not resolve damages claims, but entered judgment for developer on LUPA claim. On remand, the Court of Appeals, 94 Wesh.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 ite 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 impmvementa to street. Affirmed on other grounds. Sander, J., filed an opinion concuaing in the result. West Headnotes [1] Zoning and Planning G^,~561 414 --- 414X Judicial Review or Relief 414X(A) In Geneml 414k501 Review in General. Judicial review of land use decisions is governed by Cand Use Petition Act (LUPA). Wesfe RCWA 36.70C.130. [2] Zoning and Plowing ^~-+564 414 ---- 414X Judicial Review or Relief 414X(A) In Genera] 414k563 Nature and Form of Remedy 414k564 Appeal. By petitioning under Land Use Petition Ac[ (LUPA), a party seeks judicial review by asking the superior cotrt to exercise appellate jurisdiction. West's RCWA 36.70C.130. [3] Admiuistrative Law and Procedure G=am- 683 l5A ---- ISAV Judicial Review of Adrrtirrishative Decisions lSAV(A) In General ISAk681 Further Review ]SAk683 Scope. in reviewing an administrative decisioq the Supreme Corut stands m the same position as the superior court. [4] ConstiNtiona]Law x46(1) 92 ---- 92II Construction, Operation, and Enforcement of Constitutional Provisions 92k44 Detemtination of Constitutional Questions 92k46 Necessity ofDetemtination 92k46(1) Iu General. Supreme Court will not reach a constitutional issue if it can decide a case on other than constitutional grounds. [5] Administrative Lew and Procedure ~-+791 l5A ---- 15AV ]ndicial Review of Administrative Decisions I SAV(E) Particular Questions, Review of 15Ak784 Fact Questions 15Ak791 Substantial Evidence. "Substantial evidence" ie a sufficient quantity of evidence to persuade afair-minded person of the truth ar correctness of the order. [6] Administrative Law and Procedure Cs,~"/49 15A ---- lSAV Judicial Review of Administrative 2005 ThomsorJWest. No claim to original U.S. Govt. works. 49 P.3d 860, 146 Wn.2d 685, Benchmark Land Co. v. City ofBattle Ground, (Wash 2002) Paget Decisions 15AV(D)Scope of Review in General Douglas Kendall, Washington, DC, Christrue 15Ak749 Presumptions. Gregoire, Atty. Gen., Roger Wynne, Asst. Atty. Gert, Seattle, amicus curiae on behalf of Assn of Wash. [See headnote text below] Cities. [6] Appeal and Prror ^C`-~ 900 30 ---- 30XV1Review 30XV](G) Presumptions 30k900 Namre end Extent in General. Supreme Court views inferences m a light most favorable to the parry that prevailed in the highest forum exeroising fact-finding autlrority. [7] Zoning and Planning C^`,-382.2 414 ---- 414VI17 Pemuts, Certificates and Approvals 414VIII(A) In General 414k382.1 Mape, Plata, or Plans, Conditions and Agreements 414k382.2 Sheets, Improvements, and Utilities. Evidence was insufficient to support city's decision requiring developer to make improvements m street adjoining development as wndition to iesaance of development pertniS street did rat 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 3690C.130(1)(c). *861 X146 Wn.2d 687 William D. Kameaeq Olympia, for Petitioner. Leanne M. Bremer, Vancouvey Ronald Franz, Seattle, for Respondent. Bab Sterbank, Federal Way, artdcus curiae on behalf of Wash. Assn of Wash. Attys. Brent Boger, Vwcouveg Timothy Harris, Robin Rivett, Russell Brooks, Bellevue, amicus curiae on behalf of Pacific Legal Foundation. Greg Overstreet, Olympia, John Groan, Bellevue, Jodi Slavik, Olympia, arnicus curiae on behalf on Building Industry Assn of W ash. Pamela I,ogineky, Olympia, amiws curiae on behalf of Wash. Assn of Prosecuting Attys. IRELAND, J. The City of Battle Ground sough[ review of the Court of Appeals' decision lha[ the City wwnstitutionally took property belonging to Benchmark Land Company X146 Wn.2d 6881 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 condifion 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 tfie holding, it is unnecessary to reach the constiNtional issue. FACTS In November 1994, Benchmark Land Company filed a preliminary plat applicatron with the City of Battle Ground for a subdivision known as Melrose Park. Benchmark sought [o develop a 20.25-acre site in the city into 56 single-family, residential lots. Mehose 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 Pazkway and Onsdorff, and its original plat map included entrances to Melrose Park from both streets. However, before the plannivg wmmiseio¢ considered Benchmark's application /Ire city engineer suggested that [he outlet to North Parkway be eliminated. Benchmark reconfigured its plat map accordingly, but did rat remove the proposed improvements to Nortlr Parkway from the revised map. *862 The planning commission considered [he proposed plat of Melrose Pazk ¢r March and April 1995. At its April meeting, [he cortrmission 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 plowing commission nor the city council entemd written findings reflecting its decision. ~ 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) Page 3 Following the city council's approval, Benchmark began development activities, including work on the street improvements to North Parkway. However, Benchmark discovered [hat the improvements would be more costly than anticipated. In August 1995, Benchmark rescinded its offer to make the improvements. X146 Wn.2d 6S9] Nonetheless, in January 1996, the city council adopted written findings of fact on its previous decision, approving the Melrose Park subdivision subject to "constmetion of Parkway Avenue and Onsdorff Boulevazd, including half- width improvements as proposed by the applicant [Benchmark]." Clerks Papers (CP) at 178. Thus, the City required Benchmark to improve North Parkway, which borders but has uo direct access to Melrose Pazk. 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 constmct half-width road improvements "to that portion of an access sheet which abuts the pazce] being developed." Pomrer 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 far development" Pormer BGMC 1216.020(A). PROCEUURAL HISTORY Benchmark brought an action in superior court under the Land Use Petition Act (LUPA), chapter 36.70C RCW, challenging the City's condition ofplet approval drat required Benchmark to make improvements to North Parkway. The superior cot¢t remanded the matter to the City "for consideration of whether the traffic impacts of the proposed preliminary plat of Melrose Park support a requirement of half sheet improvements to North Parkway Avenue." CP at 377-78. CP at 488. The report found that "with the addition of site trips from the Melrose Park Subdivisioq there will be adequate wpaeity at the intersection of Parkway and Onsdorff" CP a[ 499. Lancaster found that [he existing sheet 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." /d. Lancaster concluded as follows: "Improving the roadway /o meet torrent standards would mitigate the deficiency that would result from additional vehicular, bicycle, and pedestrian traffic due to the subdivision." /d. (emphasis added). Benchmark htred The TRANSPO Group, Inc. to study the haffic impacts caused by Melrose Pazk In examining the existing sheets in the vicinity of the Subdivisioq TRANSPO noted that "[t]he 700-foot section of NE 132nd Aveuue [North Pazkway] which borders the Bite is consistent widr other sections of NE 132nd Avenue from Main Street to NE 142nd Avenue." CP at 505. TRANSPO's analysis determined that the haffic volume increase on North Parkway due to the proposed development would be approximately lA percent TRANSPO concluded as follows: "An increase of this magnitude *863 would be virtnally indistinguishable to the average mo[odst and has no [e]ffect on overall intersection and roadway level of service." CP a[ 511. TRANSPO also stated that [he project would have "little [o no impact on safety and operations" on North Parkway. /d. TRANSPO did not find off-site improvements to be necessary as a result ofMelrose Pazk. Nonetheless, the commission deternned that the development's impacts on North Parkway justified requiring Benchmark to make the street improvements. The city council agreed a[ its February 1997 open meeting, end the council issued the fallowing written decision: [146 Wn.2d 691] L The Ciry of Battle Ground shall not require additional dedication of land from the applicant [o widen North Parkway Avenue north of Onsdorff Boulevazd.[ (FN2)] On remand, both the Ciry and Benchmark conducted hafflc studies, which were presented [o the planning wrrunission. The results of the traffic sudies are summarized below. [146 Wn.2d 690] The City hired Lancaster Engineering to sNdy 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." 2. Taking into consideration all of the impacts on North Parkway, the respecdve conclusions of the two traffic engineers and the facts submitted to the Planning Commission and reflected in the record and in the Findings of Fac[ of the Planning Cornmissioq end further noted by [he members of the City Council, it is reasonable sort proportional to require the applicant to make standard half-street improvements to North C9 2005 Thomson/W ea[. No claim [o original U.S. Govt. works. 49 P.3d 860, 146 Wn.2d 685, Benchmark Land Co. v. Ciry ofBattle Ground, (Wash. 2002) page 4 Parkway Avenue only as i[ fronts Melrose Park Subdivision, consisting of pavement, cmbe, 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 sough[ damages under federal and state law. Pursuant to CR 54(b), the court allmved Benchmark [o 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 snbstantial evidence of an "essential nexus" between possible impacts which may be caused by the Melrose Park Subdivision and half-sneer impmveme¢6 to North Parkway Avenue; and ... [T]hat the City has not brought forth substantial evidence of "rough pmporfionelity" between possible impacts which may be caused by the Melrose Pazk Subdivision and half-street improvements to North Parkway Avenue; and ... [T]hat the City's decision of February 6, 1997 that Benchmark be requ¢ed tgin[er olio, constmct half-snee[ 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. *864 Although Del Monte Dunes defines "exactions" as "decisions conditioning approval of development on the dedication of property," ... we emphasize [he similarity of exacting land and money. If the govemmen[ m Nollarz and Dolan had exacted money rather than land and then purchased ]and [o solve the problems, the same questions would arise: was the money exacted for and used to solve a problem connected [o [he proposed development? (NollanJ And was the amount of money exacted roughly proportional [o the development's impact on [he problem? (Dolan. Surely if the issues for an exaction of money me the same as for an exaction of ]and, the teat must be the same: a showing of "Hems" 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 La[e. This Court granted its motion for extension of time to file the petition and accepted review at 143 Wesh.2d 1018 (2001). Amici curiae memoranda i¢ support of the Ciry were submitted by the Association of Washington Cities and the Washington State Association of Municipal Attorneys (jointly) and the Washington Association of Prosecuting Attomeys. Amici curiae memoranda m support of Benchmark were submitted by the Building Industry of Washington and Pacific Lego] Foundation. CP at 655-56. The City appealed. The Court of Appeals applied a No(lon/Dolarz analysis (FN3) "where the Ciry requires the developer as a condition of approval to incur substantial wets improving an adjoining street." Benchmark Lund Co. v. City of Battle Ground, 94 Wash.App. 537, 548, 972 A2d 944 (1999). The court held [hat the Ciry failed to show "an impact and a solution roughly proportional [o the impact " [d. a[ 552, 972 P.2d 944. Aewrdi¢gly, the wort affirmed the superior court's mimg that the condition was invalid. This Court at 138 Wash.2d 1008, 989 P.2d 1140 (1999) granted [he City's petition for review and remanded to the Court of Appeals fot reconsideration in light of City of Monterey v. Del Monte Dunes at Monterey, Ltd, 526 U.S. 687, 119 S.Ct. 1624, 143 L.Fd.2d 882 (1999). On remand, the Court o[ Appeals adhered to its original dccieioq stating as follows: ANALYSIS Standard of Review [I][2][3] Judicial review oC land use decisions is governed by the LUPA, chapter 36.70C RCW. Ctrton e City ofSeatde, 97 Wash.App. 360, 362, 983 P.2d 1135 ((999). "By petitioning under LUPA, a party seeks judicial review by asking the superior court to exercise appellate judsdictron." Sunderland Pami(y Treatment Servs. v. Q'ty 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, I41 Wash.2d 169, I76, 4 P.3d 123 (2000). RCW 36.70C.l30 Under RCW 36.70C.130, an appellate court may gran[ relief from a land use decision if [he petitioner 2005 Thomson/West. No claim to original U.S. Govt. works. 49 P.3d 860, 146 Wn.2d 685, Benchmark Land Co. v. Ciry of Battle Ground, (Wash. 2002) Page 5 carties its burden of establishing at least one of the following six standards: (a) The body or officer that made the laud use decision engaged in unlawful procedure or failed to follow a prescribed process, unless the ertor was harmless; (b) The land use derision is an erroneous interpretatreu 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) Tfte land use decision is no[ supported by evidence that ie substantial when viewed in light of the whole record before the court; (d) The land use decision is a cleazly erroneous apphwtion of the law to the facts; (e) The lend use decision is outside the authority or jurisdiction of the body or officer making the decision; or (t) The land use decision violates the wustiN[ional 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 (~. However, it is a fundamental principle that this Court will no[ reach a constitutional issue if it can decide a case on other than conatiNtional grounds. Senear v. Daily Journa]- Am-, 97 Waeh.2d 148, 152, 641 P.2d 1180 (1982). The instant case can be fully resolved under subsection (c) of the statute. Therefore, we do rot reach the constitutional issue under subsection (~. Substandla(Evidence [5] Issues raised under subsection (c) challenge the sufficiency of the evidence. "[S]ubstanfial evidence is'a sufficient quantity of evidence to persuade afair- minded person of [he truth or correctness of the order.' p'ry of Redmond v. Cent Puget Sound Growth Mgm[. Hearings Bd., 136 *865 Wash.2d 38, 46, 959 P.2d L091 (1998) To view preceding link please chck here (quoting Calleeod v. Wash. Stole Patrol, 84 WashApp. 663, 673, 929 P.2d 510 (1997) )~ exercising fact-Eroding authority." Schofe(d v Spokane County, 96 WashApp. 581, 588, 980 P.2d 277 (1999). In this case, we view fhe record and inferences in a light most favorable to the City because the City prevailed before the city council. [7] As a rendition of development approval, the City required Benchmark m incur the costs of impmvtug streets bordering Melrose Park. The City argues that its requ¢ement is supported by substantial evidence. We disagree. [146 Wn.2d 695J North Parkway did not meet City roadway standards even before [he development was proposed. The required expenditure for street ~! improvements was not directly related to the traffic generated by the development See Miller v. Ciry of Port Angeles, 38 WashApp. 904, 910, 691 P.2d 229 (1984). Ralheq the required improvements would relieve a preexisting deficiency. In additroq the traffic studies found that the subdivision would have little to no impact on safety and operations on the section of roadway Benchmazk 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 hips on Parkway north of Onadorff because fhe schools are located to the sonflr and west of the subdivision." CP at 498. TRANSPO's haffic 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 ]42nd Avenue to accommodate these developments." CP a[ 505. 'The section of site frontage along NE 132nd Avenue ie not inwnsistent with other sections of NE 132nd Avenue or other area roadways." CP at S l1. The increase m traffic volumes on North Parkway due to Melrose Park "aze 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 occurtenrz." CP at 510. [6] "We view inferences in a light most favorable to the party that prevailed in the highest forum TRANSPO concluded that the intersection of v 2005 Thomson/West. No claim to original U.S. Govt. works. 49 P.3d 860, 146 Wn.2d 685, Benchmark Land Co. v. City ofBal0e Ground, (Wash. 2002) Page 6 Onsdorff and Parkway is "operating at acceptable levels of service and will wndnue to do so with development of the proposed project." CP at 511. 1146 Wn.2d 696] SUMMARY 129 L.Ed.2d 304 (1994). (FNl) Although the majority opinion does not find i[ 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 nartower state law grounds are. Based on the record before us, we determine that there is not substantial evidence, as requhed by RC W 36.70C.130(1)(e), to support the CSty'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 altema[e grounds and affum the superior court's mling that [he City's condition is invalid under the statute. ALEXANDE$ C.L, SMITH, MADSEN, BRIDGE, CHAMBERS, and OWEN$ JJ., concur. JOHNSON, J., concurs in result only. SANDERS, J. (wucurting). I agree with the majority that conditioning plat approval on offsite mad improvements under these circumstances is unlawful. However, [ 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 tinder 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 "esseudal 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 [ agree [lus is the evidentiary deficiency. However, I think it is also important to rote exactly why it is the legal burden of the city m prove this. The Corot of Appeals opinion in [Itis proceeding articulated the view that the requhement stems from the Fifth Amendment to the 1146 W o.2d 6971 United States Constlmtion as constmed in Nollan v. California Coart¢I Commissiaa, 483 0.S. 825, 834, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987) and Dolan v. City of 75gard, 512 O.S. 374, 386, l14 S.Ct. 2309, Specifiealty, I think RCW 82.02.020 imposes that requirement. In relevant par[ this statute provides: (N)o county, city, town, or other municipal corporation shall impose any tax, fee, or charge, either direct or fndirec; ... on the deve[opmen( subdivision, classificatioq or reclassification of land .... 77ds section does not prohibit voluntary agreements with counties, cities, mwns, or other municipal wrpora[ioas that allow a payment in lieu of a dedication of land or io midgate a direct impact !had has been identified as a consequence of a proposed development, subdivision, or plat .... No county, city, rown, or other mmieipal corporation shall require any payment ae part of such a voluntary agreement which the county, city, town, or other municipal corporation carrot 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 requ¢ed constmction of offsi[e sneet improvemen[e is a "tax, jee, or charge, either direct or fndirec!." We have previously recognized that a tax may be m cash or "kind." Son Talmo Assocs. v. Gry of Seattle, 108 Wash.2d 20, 24, 735 P.2d 673 (1987). And of course the prohibition m 1146 Wn.2d 6981 RCW 82.02.020 includes but is broader than taxes because "whether a payment is characterized ae a [ax or a regulatory ke," it is prohibited unless specifically excepted. IUL Assocs., Inc. v. City of Seattle, l13 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 th Hillis Homes, Inc. v. Snohomish County, 97 Wash.2d 804, 808, 650 P.2d 193 (1982) that they were. We there cited with 2005 ThomsorWJest. No claim to original U.S. Govt. works. 49 P.3d 860, l46 Wm2d 685, Benchmark Land Co. v. City ofSattle Ground, (Wash. 2002) Page 7 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." required under [he ordinance absent proof Iha[ i[ is necessary to mitigate a "direct hnpact" of the development. OC course proof that these offsite road improvements are necessary because of the "direct impact" of [he plat ie simply absent. 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, subdivisioq classifica[ioq or melaseification 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 wntribution m the solution of the problem be proportionate to his conhibution to [he problem itself. Of course [his deficiency cannot be cured by a local ordinance which imposes a tax, Fee, or charge without s[ammry authorization or otherwise conBicts with the general laws of the elate, 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 violnted RCW *867. 82.02.020 To view proceding link please click here or imposed a statutorily wauthorized [ax. This ordinance does no[ require that result, however. Although subsection A of the ordinance purports to require a "halt-width road improvement shall be constmcied [o the applicable standards set out in this chapter to that portion of an access street which abate 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 [he provisions of RCW 82.02.020." This seems to be a round-about recognition that such mifigation is not For these reasons I concur in the majority's result. (PN l.) The inifial secdou of former chapter 12.16 of the Battle Ground Municipal Code states as follows: "If is lire purpose of this chapter to establish minimum standazds for public and private sheets hereinzfrer wnstmeted or improved by another as a condition of city approval of a development or by the city." Former Battle Ground Municipal Code L2.16.010. (FN2.) Benchmark's argument that the City required the developer [o 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 dte half-width improvements, the city wuncil expressly detemtined 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.Pd.2d 677 (1987) and the "rough proportionality" standard se[ forth in Dolan v. City of Tigard, 512 U.S. 394, 114 S.Ct. 2309, 129 LEd.2d 304 (1994). (PN1.) The Court of Appeals opinion on the constitutional issue has melted scholarly praise from Professor William Stoebuck. See l7 William B. Stoebuck, Washington Prattles, Real Estate Property Law § 6.6, at 25 (Supp.2001). Cr, 2005 Thomson/West. No claim to original U.S. Govt. works. 829 P.2d 169, 64 Wn.App. 451, Cobb v. Snohomish Coanty, (Wash.App. Div. 1 1991) Page 1 *169 829 A2d 169 64 Wn.App. 451 Cora[ ofAppeals of Washington, Division (. Larry COBB, Robert Hale, and R/L Associates, Inc., Appellants, v. SNOHOMISH COUNTY, Respondent. No. 24680-1-[. Nov. 4, 1991. As Amended on Denial of Rergnsideration Peb. 28, 1992. Review Denied June 3, 1992. 414 ---- 414IIValidity ofZoning Regulations 41411(8) Regulations as to Parpcular Matters 414k86 Pemdts and Certificates. County wde section requiring that developers agree to share m cos[ of improving road systems impacted by proposed land development projects in order to receive prelhninary plat approval fell within voluntary agreement exception m statute generally barring municipal corporations from requiring developers to pay fee, [ax or charge; agreements provided For m code were "volrmtary" within meaning of statute, even though approval of development was conditioned upon agreemenPs execution. West's RCWA 82.02.020. [2] Zoning and Planning x382.4 Developer brought action challenging validity of county code section requiring that developea agree [o share in cast of improving road systems impacted by proposed developments as condition of preliminary plat approval. The Superior Court, Snohomish County, John P. Wilson, 7., ordered cormty to grant developer's application for preliminary plat approval upon payment of pro rata shaze of proposed left tutu lane. Developer appealed. The Court of Appeals, Pekelie, ]., held that (I) county code section fell within voluntary agreement exception [o statute generally barring municipal corporations from requiring developers to pay fee, tax or charge; (2) word "voluntary," within meaning of voluntary agreement exceptien, 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 tra%c impacted by development would be al level of ha%c service "C," rather than higher level "D;' and, thus, only obligation which county could impose on developer was that developer agree not [o protest fomratlon of mad improvement district, and (4) developer's request for attorney fees was premaNre. Reversed and remanded. Grosse, C.L, filed opinion concurring in the result. Agid, J, filed contusing and dissenting opinion. 414 ---- 414VIII Permik, Certificates and Approvals 414V111(A) In General 414k382.1 Maps, Plats, or Plans, Conditions and Agreements 410.k382.4 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 [axes, fees or chazges on developers. Wesfs RCWA 82.02.020. [3] Zoning and Planning 0382.4 414 -- 414VIII Permits, Certificates and Approvals 414V111(A) In General 414k382.1 Maps, Plats, or Plane, Conditions and Agreements 414k382.4 Fees, Bands, and in Lieu Payments. Word "voluntary," within meaning of voluntary agreement exception [o general statutory bar prohibiting municipal corporations from requiring developers to pay fee, tax or chazge, means that developer has choice of either paying for those reasonably necessary costs which are directly atnibu[able to developer's project or losing preliminary plat approval. West's RCWA 82.02.020. West Headnotes [4] Zoning and Planning C=am- 382.2 [1] Zoning and Plannhrg X86 2004 W est, a Thomson business. No claim to original U.S. Govt. works. 829 P.2d 169, 64 Wn.App. 451, Cobb v. Snohomish County, (Waeh.App. Div. l 1991) Page 2 4l4 ---- 414VIII Pemtits, Certificates end Approvals 4l4VIII(A) In General 414k382.1 Maps, Plats, or Plans, Conditions and Agreements 414k382.2 Streets, Improvements, and Utilities. Sale lane of traffic impacted by development would be at level of traffic service "C;' rather than higher level "D," and, thus, only obligation which wunty could impose on developer under ordinance requiring developers to share m cos[ of improving road systems impacted by development projects was that developer agree not to protest formation of mad improvement disMet. West's RCWA 82.02020. provision requtring that developers share in wst of improving road systems affected by proposed land development projects, was premature where developer reserved damagce issues; on remand, if developer prevailed in action for damages and hial court in ite discretion awarded attomey fees and costs, developer should also receive awazd of fees and costs inverted on appeal. Wesl'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 Tamer, Deputy Pros. Atty., Drew Nielsen and Nielsen, Nielsen & Leach, Everett, for respondent. [5] Zoning and Planning C^.5382.4 414 ---- 4l4VIII Pemtits, Certificates and Approvals 4I4V~II(A) In Oenem] 414k382.1 Maps, Plats, or Plane, Conditions and Agreements 414k382.4 Fees, Bonds, and in Lieu Payments. [See headnote te# below] [5] Zoning and Planning ^C,~~610 414 ---- 414XJudicial Review or Relief 414X(C) Scope of Review 414X(C)1 In Genera] 414k608 Arbitrary, Capricious, or Unreasonable Action 414k610 Decisions of Boards or Officers. Under statute providing voluntary agreement excep[iov to geveml prohibi[iov bazriug municipalities from requiring developers to pay fee, tax or chazge, it was incumbent upon county to show that requimd improvements were reasonably necessary to rni[igate direct impact of development, and decision was reviewed rmder arbitrary and capdctious standard. West's RCWA 82.02.020. [6] Zoning and Plannhsg C^}729 4l4 --- 414X Iudicial Review or Relief 414X(D) Determination 414k729 Costs. Request for attomey fees by developer, who successfully challenged application of county code PBKELIS, Iudge. Larry Cobb, Robert Hale, and R/L Associates, Inc. (Cobbj, ohallenga tha validity of Title 26B of the Snohomish County Code (SCC) which requires that developers share in the cost of improving road systems inspected by proposed land development projects. Cobb contends that the ordivance imposes unauthorized taxes, fees or charges on developers, violates substantive due pmeess, and effects a [eking of private property without just compensation. *171 [64 Wn.App. 453[ A. SCC Tide l6B On May ] 1, 1982, the Snohortdsh County Council adopted a revised mad ordinance, SCC Title 26B, in an effort [o address those problems associated with the increasing demand placed on county roads by intensified land use and rapid population growth. Pormer SCC 26B.60.010. The declared purpose of the ordinance ie to "ensure that public health, safety and welfam will be preserved by having adequate roads to new and existing developments by requiring all land development projects m unincorporated Snohomish county ... to pay for a proportionate share of the cost of road improvements due [o such land developments." Aortner SCC 26B.50.020. To effecNate this purpose, the ordinance requires that developers agree to perform certain remedial measures before receiving land use approval from the County. Forrrser SCC 26B.62.010. Developers are required, upon request, to prepare a comprehensive ©2004 West, a Thomson business. No claim [o original U.S. Gov[. works. 829 P.2d 169, 64 Wn.App. 451, Cobb v. Snohomish County, (Wash.App. Div. 1 1991) Page 3 traffic sNdy detailing the immediate and long-term effects of the proposed development on the level of traffic service (LOS) of the surrounding road system. (FN]) Fortner SCC 26B.53.030(f); see also former SCC 266.52.010(1). The ordinance incorporates the LOS criteria outlined in the Highway Capacity Manual, a guide published by the Transportation Research Board. Former SCC 266.51.010. The criteria are based on the unused rapacity of the particular lane in question, and may range from "A" (little or no traffic delays) ro "P" (very long traffic delays). Under Chapter 266.55, developers may have to agree to contribute to certain road improvements in order to obtain project approval. In general, the greater the expected haffic delay following a project's completion, the greater the obligation(64 Wn.App. 454] imposed upon the developer. Thns, where a project will be served by a road system of LOS A or B, the developer has no obligation [o make off-site road improvements. At most, the developer may be required to peffortn frontage mad improvements or dedicate an additional fight-of--way. Farmer SCC 266.55.020. 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 requhed to perform frontage mad improvements or dedicate an additional right-of- way. Former SCC 266.55.030. 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 shaze of the cost of mitigation improvements. Fortner SCC 26B.55.040(t). The proposed development will not be approved until all necessary fording is cotnrttitted and the project is under contract or construction. Former SCC 266.55.040(2). [he remaining portions. Pursuant to SCC 266.53, Cobb famished the County Department of Public Works (DPW) with a traffic sNdy detailing, inter aliq the impacts of the subdivision an the 234th Sheet S. W./SR 99 intersection. The sNdy 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( rum movements that would operate at LOS D. The proposed subdivision would no[ conmbu[e any vehicles m these movements. Although the DPW fond Cobb's study generally acceptable, it rook the position that the question of whether the development drectly impacted tra[c 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 detemtine 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 cosec[ formula to be applied Thus, under former SCC 266.55.070(2), the matter was brought before a hearing examiner to decide on the cortect impact mitigation measures m be undertaken as a wndi[ion of plat approval. A[ 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 sitars should be based upon full imp[ovement of the entire intersection. It thus asked the hearing exandner to reject Cobb's mitigation offer, which was based simply on a proportionate sham of the estimated $10,000 coat of a left Nm lane for the west ]eg of 234th/SR99 intersectioq the only leg his development would directly affect. B. COBB'S S(JBD/V/SION In December 1987, Cobb applied to [he Comrty for preliminary plat approval to subdivide a 5.07 acre parcel of property into 18 single family lots. The proposed subdivieioq named "Zenith Village", was located north of 234th Street S.W. and west of State Highway 99 (SR 99). Cobb was a contract purchaser oC part of the property and an agent for the owners of The hearing examiner found Cobb's traffic impact mitigation offer unacceptable, de[ertnining that, as the DPW wntended, only full improvement o[ the entire intersection from LOS D to LOS B or better satisfied the mitigation requirement. Additionally, the hearing examiner noted that because the Slate Department of Transportation had no plans for major signalizatron or road improvements, Cobb's offer for the 234th Street ~ 2004 West, a Thomson business. No claim to original U.S. Gov[. works. 829 P.2d 169, 64 WaApp. 451, Cobb v. Snohomish County, (Waeh.App. Div. 1 1991) Page 4 SW/SR 99 intersection was infeasible. On appeal, [he Snohomish County Council upheld the heazing examiner's decision. Cobb then brought an action in ]64 Wn.App. 456] Snohomish County Superior Court, requesting that SCC Title 26th be declared invalid as an unconstitutional [ax. The trial court denied Cobb's motion for declam[ory relief on the grounds that ire "interyretation of SCC Title 26B that the maximum exaction required from an applicant cannot exceed the pro rata cost of roadway improvements athibutable to an applicant's proposed project" rendered the ordinance coneOmtlonal. The hial court ordered the County to grant Cobb's application for preliminary plat approval upon payment of his pro rata share of the proposed leR tutu lane. In essence, the trial court adopted Cobb's mitigation offer which the hearing examiner had rejected. The com't 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 iLS face and as applied to his request for preliminary plat approval of his proposed subdivision. (1982)". [UL Associates v. Seattle, 113 Wash.2d 402, 408, 780 P.2d 838 (1989). However, as R/L [64 Wn.App. 457] Associates To view preceding link please click here makes clear, the "tax/regulation distinction' is no longer relevant because [he statutory pmhtbition against "taxes, fees, or charges' is so all-enwmpassing it applies [o al] development fees unless specifically excepted. R/L Assocs., 113 Wash.2d at 409, 780 P2d 838. [2] Accordingly, if SCC Tithe 26B required developers to pay a fee, tax, or charge even if [hat were specifically used for payment of off-site road improvements, it would nm afoul of RC W 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). [u other words, a developer may enter into an agreement with local govemment to pay e 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 Sou[hrvick, Inc. v. Lacey, 58 Waeh.App. 886, 895, 795 P.2d 712 (1990); Comment, Subdivision Exactions in Washing[orc The Controversy Over Imposing Pees on Developers, 59 Wash.L.Rev. 289, 298 (1984). [l] Cobb contends fast 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, tovm, or other muinoipal wrpomtion shall impose any [ax, fee, or charge, eiOrer direct or indaect, on the coastmetion or reconstmctron of residential buildings, commeroia] buildings, indusMal buildings, or on any other building or building apace or appurtenance thereto, or on the development, subdivisioq classifieatioq or reclassification of land. Laws of 1982, ls[ Ex. Sese, ch. 49, § 5 (effective July 1, 1982). *173 Early cases interpreting this statute focused on "whether a development Cee constituted an unauthorized [ax or a valid regulatory scheme, as that distinction was explained in Hillis Homes, lne. v. Snohomish Cy., 97 Wn.2d 804, 809, 650 P.2d 193 It is apparent that Snohomish County has attempted in SCC Title 26B to comply with [he "voluntary agreement" exception in RCW 82.02.020. On rhea face, the negotiated agreement provisions in Fortner SCC 26B.55.040 mirror Ore requvements for the voluntary agreement exception wiOtin the statute. The provisions provide a scheme which allows the developer to agree [o pay for its shaze of reasonably necessary improvements to roads drectly 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 26H.55.040 are not "voluntary" within the meaning of RCW 82.02.020 because approval of [he proposed development is conditioned upon [he agreement's executlon. 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 no[ be between perfect options does not render the 2004 Wes[, 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. 11991) Page 5 agreement "involuntary" under the statute. Comment, 59 Wash.L.Rev. at 298; See generally, Settle, Washington Land Use and Environments( Law and Practice Li41 LS (1983). (PN2) Moreover, Cobb does not claim that he has an absolute right to receive plat approval; he clearly does not. The county is authorized m withhold approval if appropriate provisions have not been made for the public health, safety, and general welfare RCW 58.17.1!0; see also, Southwick, Inc. v. Lscey, 58 Wash.App. 886, 892-93, 795 P.2d 712 (1990); Miller v. Port Angeles, 38 Waeh.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 ffaffic in such a way as to create serious health, safety and welfare problems. The purpose of former SCC 26B.55.040 is m make appropriate provisions for mitigathrg the direct impact of new developments on existing roads. While Cobh's development contributed some traffic m 1,OS C traffic lanes, i[ wnmbu[ed none whatsoever to the LOS D traffic lanes. The trial court apparently recognized this and thus attempted to correct [he hearing examiner's error by limiting Cobb's obligation [o the proportionate cast of the left tmn lane of the intersection. However, the trial court's mling is also improper Because the lane impacted by Cobb's development would be a[ LOS C, not D, under former SCC 26B.55.03Q the court had no authority [o require rrritigation at all. The only obligation which the County could impose on Cobb was [hat he agree not to protest the formation of a RID. Accordingly, we hold that while the mitigation scheme provided for m SCC Title 26B does not on its face violate RCW 82.02.02Q both the hearing examiner's and the hial 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 m confomtance with the requvements of former SCC 26B.65.03Q not .040. (PN3) *174 Accordingly, we wndude that the voluntary agreement scheme contemplated by SCC Title 26B is no[ violative of RCW 82.02.020. The ordinance properly permits voluntary agrcements between developers and the county for payment of a fee to mitigate the direct impact of the traffic problems of the cotmry. 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 wrectly contends that the traffic his development would contribute, [64 Wn.App. 459] when properly calculated under the ordinance itse[j does notjustify application of the LOS D provisions. [0.] Under the statute, it was incumbent upon the Cormty to show that the required unprovementa were "reasonably necessary" m mitigate Ote drtect impact of the development. Southwick, lac., 58 Wash.App. a[ 895, 795 P.2d 712. This derision 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. z19, 2zg, 622 e.za s9z p9sp>. [5] Here, SCC Title 26B expressly incorporates the Highway Capacity Manual's de5nitions relating to traffic desigq 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 in[ersectioq not the entire intersection itself. [64 Wn.App. 460] lIl [6] Cobb has requested attomey fees on a mm~ber of grounds. Attomey fees may not be awarded in the absence of statutory authority or an applicable equitable or contract provisiom. Blue Sky Advocates v. State, 107 Wash.2d L12, 122, 727 P.2d 644 Q986). We conclude that the only possible ground on which he would be entitled to attomey 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 pertnit have m action for damages [o obtain relief from acts of av agency which are arbitrary, capricious, unlawful, or exceed lawful authority, m relief from a failure to act within time limits established by law: Provided, That the actlon is unlawfnl or in excess of ]awful authority only if the final decision of the agency was made with knowledge of its unlawfulness or [hat it was in excess of lawful authority, or it should reasonably have been known N 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 attomey fees. (Emphasis added.) Gr" 2004 West, a Thomson business. No claim to original U.S. Gov[. works. 829 P.2d 169, 64 Wn.App. 451, Cobb v. Snohomish County, (Wash.App. Div. 1 1991) Page 6 However, because Cobb hoe reserved the damages issue under this statute, Ids request for attorney fees is premaNre. On remand if Cobb prevails m his action for damages and the trial court iv its discretion awards attorney fees and costs, Cobb should also receive an awazd of fees and costs incurred m this appeal in such sum as the his] coot[ shall detemrine reasonable. Accordingly, we reverse end 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 N the lead opinion, but write separately to state my view that i[ is unnecessary in dris case to decide the issue of the validity ofthe ordinance. AGID, Judge (concurivg and dissenting) While 1 concur N 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 fomrer SCC 26B.55.040 are "voluntary" agreements under RCW 82.02.020. I therefore write sepaately to address this issue. RCW 82.02.020 case enacted by the Legislature m 1982 as part of comprehensive legislation that included the gent of authority to certain local governments [o impose additional sales and real estate hansfer 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, oven though there had been other proposals before the Legislature [o expand or limit mumcipali[ies' au0roriy to vnpose such fees. (Citations omitted.) R/L Assocs., loc. v. Seattle, t 13 Wesh.2d 402, 406-407, 780 P.2d 838 (1989). In 2L Assocs., the Supreme Court recognized that earlier cases had "resisted a literal application of RCW 82.02.020". Ili Wash.2d a[ 408, 780 P.2d 838. In detemaining that henceforth the statute must be strictly applied, the court observed that the [earlier] cases implicitly reco~ized the importance of the statute as a source of local government's authority to economically burden development, but gave the statute a nartow construction and limited application. However, in the light of the Legislature's clear intent as embodied N the staNte's language, end [he circumstances surrounding its enactment, we fmd that such a constmction is not waaanted, and will apply [he stamte according to its plain and unambiguous terms. R/L Assocs., 113 Wash.2d at 409, 780 P.2d 838. Thus, our fire[ task is to determine, in the context of this case, what [hose "plain and unambiguous terms" are. 164 Wn.App. 462[ In order [o properly analyze RCW 82.02.02Q, we must fast clarify what it is and is not It is apparent that it is not an enabling staNte. It confers no authority on municipalities to impose wnditione on development or charge fees in the absence of independent authority permitting the imposition of wnditicns for which the fee is a substiNte. The statute is fire[ and foremost a taxing statute. It begins by declazing [ha[ Except only as expressly provided m [[lase staNtes no[ 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, na county, city, town, or other municipal wrpomtion shall impose any tax, fee, or charge, either dneci or indvect, on the constmction or reconstmetion of residential buildings, commercial buildings, indushial buildings, or on any other building or building space or appurtenance thereto, or on the development, subdivision, classification, *176 or reclassification ofland. However, llris section does not preclude dedications of land or easements within the proposed development or plat which the county, city, town, or other mwicipal corporation can demonstrate are reasonably necessary as a dtrect result of [he proposed development or plat to which the dedication of land or easement is to apply. RCW 82.02.020. As a first principle, theq the statute is a prohibition on d¢ect or indirect taxes, fees, or charges on development activity except that on-site dedications and easements which are pemdtted by other staNtes are no[ prohibited by ACW 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) Page 7 White generally pmlubitmg what have wme to be known as development fees or exactions, RCW 82.02.020 then enumerates certain excepfione 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 ae a consequence ofa proposed development, subdivisieq or plat." (Emphasis added.) The voluntary agreement provisions of RCW 82.02.020 do no[ themselves grant authority to require developer exactions. Rather, they "allow" the local government and the developer to enter inro an agreement N pay a fee as an alternative to dedicating land or complying with a mitigation requirement which that govennen[ may impose [64 Wn.App. 463) as a result of authority granted by another staNte or ordinance. (FNl) The county cites us to no independent authority which would pemdt it to require Cobb to cons[met or contribute to the conelmction of a left Nm lane at the intersection of Stale 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 fomr a Road Improvement District (RID) to fund "full improvements" (FN3) or enter into a "voluntary agreement" to pay for same or all of the [64 Wn.App. 464[ improvements. In [he 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 Cee as a snbstilute for wvstmetion of irprovements it cannot require in the fast place. The second major problem with the ordinance arises from its apparent misapprehension of the meaning of the word "voluntary" as it is used N RCW 82.02.020. As noted above, the staNte *177 does not prohibit voluntary agreements with counties, cities, towns, or other municipal corporations that allow a payment m lieu of a dedication of land or to mitigate a direct impact that has been identified ae a consequence of a proposed development, subdivision, or plat. The word "voluntary" is not deFmed m the staNte. Where there is no staNtory defiNtioq the court must give a ward its ordinary and usual meaning. State v. Smndifeq 1l0 Wash.2d 9Q 92-93, 750 P.2d 258 (1988). The word "voluntary" ie defined as "pmceedivg from the will[;] produced N or by an act of choice ._ [;] ... performed, made, or given of one's own free will ... [;] ... acting of aneseltj;) not wnstrained, impelled or influenced by another'. Webster's Third New Intematiena] Dictionary 2564 (1986). In order to be voluntary, an agreement must at leas[ present the parties with a viable choice. However, under the Snohomish County ordinance at issue here, former SCC 26B.55.04Q the only option given the pemmit applicant is to pay a fee or have the requested pemmit application denied. This is not a choice. It is tantamount to a contract of adhesion where, if the applicant wants the pemdt, there is no choice but to accept the terms that are dictated by local govemmen[ officials. The perut applicant ie not acting of his or her own will "not constrained [or compelled] by another" when paying e 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 staNtory provision allowing voluntary developer agreements is meaningless. On [he contrary, there are numerous instances N which an applicant, legitimately required under another statute to dedicate ]and, reduce the size of a proposed development, or take other steps to mifigete impacts, will voluntarily choose to pay a Fee instead Should the applicant detemLne that a dedication of land would detract from the appearance of or reduce the market for its projecS i[ may choose [o pay a fee rather than dedicate the ]and which [he local govemment can legitimately require pursunnt [o RCW eh. SS.l7. In order to vdtigate impacts on an cuvironmentally 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 muNally 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 ere Ime choices because the local government has clear authority to require the applicant to dedicate the land or mitigate the impact. Former SCC 26BS5.010(4) and .040 purport to ~ 2004 West, a Thomson business. No claim [o original O.S. Govt. works. 829 P.2d 169, 64 Wn.App. 451, Cobb v. Snohomish County, (Wash.App. Div. 1 1991) Page 8 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 m pay the fee ar 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 266.55.040 is therefore invalid on [his 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 tinder the statute. Sourhwfek, Inc. v- Lacey, 58 Wash.App. 886, 795 P.2d 712 (1990). However, a review of [he wnditions to which Southwick was objecting in that case clearly distinguishes it from this one. In that case, the developer was objecting [o requirements that it make improvements [o 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 m its project, increase the flow of water to the property and install sprinklers and a fire alaan system on the premises. All of these aze *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 fns codes already in effect (FN4) The City neither relied upon RCW 52.02.020 for ¢uthority to impose these requirements nor authorized payment of a fee in lieu of building the required improvements. This alone distinguishes Southwiek from tiffs case because, es noted above, Snohomish Coanty h¢d no authority independent of RCW 82.02.020 to requre Cobb to improve Ore intersection in yuestiou. In addition, I question the interyretation the Southwick court gave to the word "voluntary' in the atamte. It relied upon the dissent in Chrobuck v. Snohomish Cy., 78 Wash.2d 858, 889, 480 P.2d 489 Q971), in which the issue was entirely different (FNS) A[ issue there was the assertion that the (64 Wn.App. 467( coanty could not enter into a conwrnitant zoning agreement with a property owner because to do so would bind the county to exercise its zoning power in a particulaz way, thus impermissibly " 'bargaining away its regulatory police power' ". Chrobuck, 78 W aeh.2d at 888, 480 P.2d 489 (quoting Stole ex rel. Myhre v. Spokane, 70 W ash.2d 207, 216, azz F.za 790 (1967)). (FNS The issue m Chrobuck and Myhre was whether the local governmend could enter into an agreement [o grant a rezone without committing an ultra vhes act. Thal is far from the issue here; i. e., whether an agreement to pay a fee to offset the cost of an oti site improvement is voluntary when the county lacks independent authority to require construction of [he improvement in question. Thus, while I have no quarrel with the indices of validity of a concomitant zoning agreement set out N Chrobuc% reliance on those factors is not relevant to or persuasive ¢r detemtinhrg whether an agreement is voluntary under RCW 82.02.020. Finallg former SCC 266.55.040 does not wmpty with the requirement of RCW 82.02.020 that fees, where pemdssible, "rrdtigate 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 exactlms and conditions. Nolan v. Cn[tfornia Coastad Comm'n, 483 U.S. 825, ]07 SLt 3141, 97 L.Ed.2d 677 (198'1) Simply stated, [here must be a nexus, a direct connection, "between the condition and the original purpose of the building restriction'. Nolan, 483 U.S. at 837, 107 S. C[. 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. (7nlimited v Kltsap Cy., 50 WashApp. 723, 727, 750 P.2d 651,review denied, I11 Wash.2d 1008 (1988), cited with approval in Presbytery of Seattle v. King Cy., !14 Wash.2d 320, 736 n. 3Q 787 P.2d 907, cert. denied, 498 U.S. 91 I, 111 S.Ct. 284, 1 l2 L.Ed.2d 238 (1990) The Snohorrush County ordinance applies to "[d]evelopers whose projects will be *179. served by a mad system which will be a[ 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 We direct impact of said development". Former SCC 266.55.040(1). This language allows Snohomish County to impose the requirements of [he ordinance whether or no[ the direct ir~ract of the development causes the road system m question to be at LOS D. Exactions on this basis are not permitted by [he temps of RCW 82.02.020. The statute requtres 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 staNte is O 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 l8 Iota which will add 9 peak hour hips to an intersection in which the existing peak hour trips total 2,622. Its maximum impact will be to add two left-laming vehicles to a left tam lane which is now and will continue [o be at LOS C. Where, as here, there is uo showing that the project will contribute to a worsening of the level of service, RCW 82.02.020 does not pemtit imposition of fees to offset the ws[s of mitigation measures. There simply is no significant impact to mitigate. In summary, in the absence oC anolfier staNte or ordinance permitting the county to require rtri[igation of the impacts of the project, a nexus between those impacts and the mitigation measures being imposed, and a tine choice offered to the project proponent m 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 mle otherwise is to effectively write the word "voluntary' out of RCW 82.02.020. The Supreme Court has unequivocally held that [he statute must be interpreted "according to its plain and unambiguous terms", R/L Assors., 113 Waeh.2d a[ 409, 780 P.2d 838. This approach N [he staNte gives the word "voluntary" its ordinary meaning and furthers the intent of the Legislalme [hat local government's power N exact fees Born developers be limited to those circumstances in wltich the Legislature has affmna[ively granted authority [o do so. (FNL.) Ponner SCC 26B.61.080 defines a "mad system" as: "[T]hose existing or proposed county roede (if any) which are located in the development site and/or between the development site and the nearest state highway or Nghways, pmjecred to be utilized by ten percent or more of the haffic generated by the development." (PN2.) We disagree with Cobb's assertion that Iry Club Investors Ltd. PartnersRip v. Kennewick, 40 Wash.App. 524, 699 P.2d 782, review dented 104 Wash.2d 1006 (1985) holds that a fee is not voluntary if the proposed development is wnditioned upon i[e payment. Although the court chazaotenzed the park fees in that case as involuntary, it did eo within the context of [he Hi//is Homes [ax/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 N RCW 82.02.020. (FN3.) Cobb also claims that SCC Title 26B uncons[iNtionally deprives him of substantive due process and effects a taking without just compensation. We have rojected Cobb's claims insofar as they are based on the assertion that SCC Title 26B is invalid on its Cace as a tax, fee, or charge. To the extent Cobb also asserts that former SCC 26B.65.040(2) can result in the developer having to pay more than the developer's pro rata cost if the County is unwilling [o contibute funding, 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 consHNtional. (FNL) For example, RCW 58.17.!10(2) pemdta the local government to require "[d]edication of land to any public body ... as a condition of subdivision approval". Similadg under the authority of the S[a[e Enviromnental Policy Act, applicants may, under cirwmstances dictated by the stemte, be required to wmply with conditions imposed by local government N "mitigate specific adverse envronmenal 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 no[ found to requite an environmental impact statement under 3EPA, end no eigniScant adverse euvironmental impacts associated with the roads in question were identified which would permit [he county to require mitigation under RCW ch. 43.21 G Nor could fees be imposed in this case under RCW 82.02.050 et seq., which does pemrit local govermnents to require developers to pay impact fees to finance their proportional share of "new facilities needed [o serve new growth and development", RCW 82.02.050(1)(6), because that staNte was not enacted until 1990. `179_ (FN3) Ot the fora options trader former SCC 26B.55.040(]), only one does not involve an ~ 2004 West, a Thomson business. No claim to original U.S. Govt. works. 829 P.2d 169, 64 WaApp. 451, Cobb v. Snohomish Comty, (Wash.App. Div. 1 1991) Page ]0 agreement to pay a fee. Subsection (b) allows formation of an RID for "full [rather than a proportionate shaze] improvements" to [he 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 went improved, and the cost of funding the entire left taro lane greatly exceeded the fee. It is also not at all clear [hat formation of an RID under these circumstances was feasible since Cobb's project represented such a small proportion of the propertles that would have m consent to the RID. 35.23.440 (sewnd class cities); RCW ch. 35.70 (third class cidea); RCW 35.27.370 (towns); RCW 36A.11.020 (optional municipal code cities). (FNS.) The majority m Chrobvek 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. (FN4.) For example, the Uniform Building, Mechanical and Fire Codes, together with applicable code standards, wkch must be adopted by every municipality m Washington, RCW 19.27.031, provide independent authority to requae adequate epdnkler, fire alazm and water systems. Cities of all classes aze granted legislative authority to adopt ordinances to provide standazds for constmc[ion and maintenance of streets, sidewalks, gutters end associated improvements on Bite. RCW 35.22.280 (first class cities); RCW (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 peunissible exercises of the police power authorized by statute or ordinance. /d. at 215-217, 422 P.2d 790; Besselman v. Moses Lnke, 46 Wash.2d 279, 280 P.2d 689 (1955). ~ 2004 West, a Thomson business. No claim to original U.S. Gov[. works. 958 P2d 343, 91 Wn.App. 505, 6urton v. Clazk County, (Wash.App. Div. 2 1998) `343 958 P.2d 343 91 Wn.App. 505 Court ofAppeals 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-Appella¢t, v. CLARK COUNTY, a municipal corporation; and [he Board of County Commissioners, a Clark County agency, Appellant/ Cross-Respondent. Nos. 20373-R, 21866-6-II. Iuly 1Q 1998. County conditioned approval of three-lo[ short plat on landowner's dedication of road right-of--way. Landowner appealed. The wunty 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, L, reversed the Board and reinstated the heaong examiner's order. County appealed. The Court of Appeals, Morgan, 7., held that evidence did vot sustain fmding of rough pmportio¢ality between pmbletns created by the pmpased 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 constmcted. Affirmed. West Headnates [1] Constim[io¢al Law Ca,~--280 92 ---- 92X[1 Dne Process of Law 92k279 Exercise of Power of Eminent Domain 92k2801n General. Fifth Amendment's 'Pakings Clause applies to the states lhroagh the Fourteenth Amendment's Uue Process Clause. U.S.C.A. Const.Amends. 5, 14. '~ 2005 Thomso¢/West. Nc [2] Emtue¢t Domain «1 Page 1 148-- 1481 Nature, Extent, a¢d Delegation of Power 148k1 Nature and Source ofPOwer. The government may "take" private land for public use with or without formal condemnation proceedings. U.SGA. Const.Amends. 5, 14. [3] Eminent Domain C^~2.1 148 ---- 148I Nature, 8x[ent, and Delegation of Power 148k2 What Constitutes a Taking; Police and Other Powers Distinguished 148k2.1 In General. (Formerly L48k2Q)) [3] Eminent Domain C~.~2.3 l48 -- 1481 Nature, Extent, and Delegation of Power 1481:2 What Constitutes a Taking; Police and Other Powers Distinguished 148k2.3 Municipal Corporahons and Local Government iu General; Annexation ofTertitory. (Formerly 148k2(l)) [3] Errtinent Domain Gam-2.10(5) l48 ---- 1481 Natme, Extent, and Delegation of Power 148k2 What Constitutes a Taking; Police and Other Powers Distioguished 148k2.10 Zoning, Planning, or Land Use; Building Codes 1481d.10(4) Zonng and Pemdts 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 [he land, by a legislative act such as enacting a statute, ordinance or regulatioq or by aquasi-judicial act such as denying or conditioning a development pemrit. U.S.GA. ConstAmends. 5, 14. claim to original U.S. Govt. works. 958 P.2d 343, 91 Wn.App. 505, Burton v. Clazk Counry, (Wash.App. Div. 2 1998) [4] Eminent Domain C=~2.1 148 --- 1481 Nature, Extent, and Delegation of Power 148K2 What Constitutes a Taking; Police and Otlrer Powers Distinguished 148k2.1 In General. (Pormerly 148k2(1)) [4] Eminent Domain C~2.]OQ) 148 ---- 1481 Nehue, Ex[eny and Delegation of Power 148k2 Whar Constmtes a Taking; Police and Other Powers Distinguished 148k2.10 Zoning, Plarming or Land Use; Building Codes 148k2.LOQ) In General. (Formerly 148K2(1)) The effect of govemment's conduct in taking private land for pubhc use may be to prevent the landowner, permanently or temporarily, from exclusively possessing the land, or from using the land in any econortucally productive way, or from using the land m some, but not all, economically productive ways. U.S.C.A. Const.Amends. 5, ]4. [5] Eminent Domain G^.}2.10(i) 148 ---- 1481 Nature, Extent, and Delegation of Power 148k2 What Constimtes a Taking; Police and Other Powers Distinguished 148k2.10 Zoning, Planning, or land Use; Building Codes 1481d.1OQ) In General. (Pomredy 748k2(1)) Even though the govemment nay "take" private land with or without Comal condemnation proceedings, it can justify its wnduct 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 elintinating the use of such land. O.S.C.A. ConstAmende. 5, 14. [6] Eminent Domain C^`- 295 Page 2 148 --- 148IV Remedies of Owners of Property; Inverse Conderrmadon 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 nalwe. U.S.C.A. ConstAmends. 5, 14. [7] Eminent Domain C^.52.10(Tj 148 ---- 148I Nahue, 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. (Fomterly ]48K2Q 2)) When the govemment conditions stand-use perm[ and seeks [o justify its action as proper exercise of police power for which just compensation is not required, then govemment must identify a public problem or problems that the condition is designed to address, and if the govemment can identify only a private problem, or no problem at all, the govemment lacks a legitimate state interest or legitimate pubhc purpose in regulating the project. U.SC.A. Const.Amends. 5, 14. [8] Eminent Domain 02.10(7) l48 --- 14SI Nature, Extent, and Delegation of Power 148k2 What Constitutes a Taking; Police end Ofher Powers Distinguished 148k2.10 Zoning Planning, or Land Use; Building Codes 148k2.10(7) Exactions and Conditions. (Pnrmedy 14akz~LZ]] When the govemment 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 far which a permit is sought will nests ~ 2005 ThomsorthVest. No claim to original U.S. Govt. works. 958 P.2d 343, 91 WnApp- 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, l4. [9] Eminent Domain °~-'2.I0(7) 148--- 1481 Nature, Extent, end Delegation of Power 148k2 What Constim[es a Taking; Pohce and Other Powers Distinguished 148k2.10 Zoning, Planning or Land Use; Building Codes 148k2.10(7) Exactions and Conditions. (Formerly L48k2Q.2)) Governrvent may not use the pertrdtting process as a vehicle for solving public problems not created or exacerbated by any project. U.S.C.A. Const.Amende. 5, l4. j10] Eminent Domain C*~2.10(7) 148 --- 1481 Nature, Eztem, and Delegation of Power 148KL What Constrmtes a Taking; Police and Other Powers Distinguished 148k2.10 Zoning Planning or Land Use; Building Codes 148k2.10(7) Exactions and Conditions. (Formerly 1481:L(1.2)) When the government conditions aland-use pemut and seeks [o justify its action as proper exercise of police power for which just compensation is no[ required, govemmen[ must show that its proposed condition *343 or exaction tends to solve, or at ]east to alleviate, the identified public problem. U.S.C.A. Const.Amends. 5, 14. [7 L] Eminent Domain G^~2-l0('~ 148 ---_ 1481 Nature, Extent, and Delegation of Power 148k2 Whet Constitutes a Taking; Police and Other Powers Distinguished 148KL.10 Zoning Planniug or Land Use; Building Codes 148k2.10(7) Exactions and Conditions. ~Po~erly 14gkzp.zjj 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 reshictione, then at a minimum, govemmem may not rely on the future unless the record furnishes a basis for inferting what the foreseeable future holds. U.S.C.A. Const.Amends. 5, 14. [12] Eminent Domain G^~-2.100 148 --- 1481 Namre, Extent, and Delegation of Power 148k2 What Constitutes a Taking; Police and Other Powers Distinguished L48k2. L0 Zoning Plarudng or Lend Use; Building Codes 148k2.10(7) Exactions and Conditions. (Formerly 14skz~l.zj) Evidence established reasonable relationship between problems created by proposed three-lo[ 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 rot required; county sought dedication of road right-of-way so county could connect two dead-end roads, county identified as problems traffic caculatioq hatfic conges[ioq and emergency vehicle access, end proposed development would exacerbate those problems by adding about 30 vehicle trips per day on neighborhood roads. U.S.C.A. Const.Amevde. 5, 14. [13] Eminent Domain G'2.10(7) 148 -- 148I Nature, Extent, and Delegation of Power 1481Q What Constiutes a Taking; Police and Other Powers Distinguished 1481¢.10 Zoning Planning or Land Use; Building Codea 148k2.10(7) Exactions and Conditions. (Formerly 1481:2Q.2)) Evidence did not sustain finding of rough proportionality between problems created by proposed three-la[ residentle] development and county's conditions on approval of short plat, as element for establishing proper exercise of police power fox which just wmpensetion was not required; © 2005 ThornsorJWest. No claim to original U.S. Govt. works. 958 P2d 343, 91 Wn.App. 505, Burton v. Clazk County, (Wash.App. Div. 2 1998) county sought dedication of road right-of--way so county could address traffic circulation, traffic congestioq and emergency vehicle access, but record was devoid of any evidence from which to infer when, if evey the exneted road would be constructed, so that it was uncertain whether problems would ever be addressed. U.S-G.A. ConstAmends. 5, 14. [14] Eminent Domain a-316 l48 ---- 148IV Remedies of Owners of Property; Inverse Conderonztion 148k316 Costs. Claimant was not entitled to award of attorney fees in eminent domain proceeding, though claimant argued for damages and attomey fees in a trial brief, as claimant never alleged a claim for damages or attomey fees m any of his pleadings and the trial wort declined to wnsider the argument raised in claimant's trial brief. [15] Certiorari «3 73 ---- 731 Nature and Grounds 7}k3 Availability of Relief in Original Proceeding. [See headnote text below] [IS] Certiorati G`-71 73 ---- 73II Proceedings and Deterndnation 73k71 Coats. [n action seeking writ of certiorari, superior court may not entertain a claim for damages or attorney fees [ha[ [he tribunal below lacked jurisdiction to award. *345 191 Wn.App. 508J Mark Alan Erikson, Vancouveq for Appel]ant/Cross-Respondent. Clvismpher Home, Clarke Co. Deputy Pros. Alty., Vancouver, far RespondentJCross-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. I[ is 098 acre in area and trapezoidal in shape. It is zoned for residential lots of not less than 6,000 sgnare feet each. Its boundaries are 305 feet long on [he west; 100 feet on the north; 233 feet on [he 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 [he east, and high- *346 voltage electrical transmission lines on the south. The undeveloped pazce] to the east is owned by one Maddux, but the record shows Iit0e else about it. Two nearby streets are Northeast 65th Street and Northeast 20th Avenue. Northeast 65th Street generally inns east ¢nd west. Its eas[em end deadends into Burton's western boundary, forming what the county considers [o be a temporary cal-de- sac. Northeast 20th Avenue generally runs north and south. Im southern end deadends into the northern boundary of Maddtrxs parcel, a few feet east oC Bmton's northeast wmer. Siuce the mid-1980's, county 191 Wn.App. 5091 planners have wanted to connect the two roads by extending them across Bm[ods property, and also across the northwest comer of Maddux's property. (FN1) Figure I illustates the area. TABULAR OR GRAPHIC MATERIAL SET AT TH[S POINT IS NOT DISPLAYABLE *347 191 Wn.App. 510] On May 5, 1994, Burton applied ro short plat his pazce) into three wedge- shaped residential lots. He proposed that each lo[ open onto the col-de-sac at the east end of Northeast 65th Street He did no[ want to dedicate right-of--way or build a road. Pigme 2 illustrates hie play TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE *348 Before Burton submitted his application, he and the Cormty informally discussed whether he would be required to connect Northeast 65th and Northeast 20th, and the effect such a comrection would have on the lots he desired to create. The County suggested a reconfiguration, shown in Figure 3, [ha[ would give him three lots with [he 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. Clazk County, (Wash.App. Div. 2 1998) Page 5 65th with Northeast 20th: makes it easier for pedestrians and bicyclists to go hour one point to another more directly, and TABULAR OR GRAPHIC MATERIAL provides for less isolation between neighborhoods. SET AT THIS POINT IS NOT Therefore, there is an essential nexus between this DISPLAYABLP street exaction and the need for street connectivity within the County, and m particular, within this ___-...- area[ (FN4j] [91 WaApp. 511 Burton rejected [his 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 Jwe 28, 1994, the county planning d¢ector recommended approval of Burton's application-but only if Burton would extend Nordreast 65th Street across his property by dedicating aright-of--way and installing a mad, curbs end sidewalks. (PN2) The planning director stated: 2. Before approval of the final plat, and except to the extent modified by the Director of Pnblic Works or other duly authorized public official pursuant to law, the applicant shall make the following road dedications and improvements: The hearhrg examiner also found that the exacted road was roughly proportional to Burton's development, because it was "the mittimum necessary to allow the local sheet to go through." (FNS) The examiner said: ... [T]he nature of this street dedication and improvement requirement is roughly proportional [o the proposed three lot residential development because each of the tMee lots will directly benefit from the road. Residents will have better emergency access and police wd 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. [91 Wn.App. 512] a. A 50 foot wide right-of--way shall be dedicated m the County through the site for [he extension of N.E. 65th Street This right-of-way shall be surveyed and designed to evenNally connect with N.E. 20th Avenue. b. N.E. 65th Sheet 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 Slate of Washington, and submitted to [he Cowty for approval prior to mad construction[ (FN3)] *349 Hereafter, we refer to these requirements as "the exacted road." Bur[w appealed to the worry hearing examiner who, w September 22, 1994, fowd an "essential nexus" between the exacted road and the wunty's need for "street cowecttvily." The examiner said: The wwectivity of streets is a legitimate Cowty interest Cowecfiviry increases public safety by providing alternative means for access wd egress. Conectivity also reduces trip distances and thereby helps reduce pollutlon, The exaction is roughly proportional in scope to the proposed three lot partition because [be road extension is the minimum necessary to allow dre 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 [he east. The County is not asking for multiple road corrections, nor are they asking for the connection to occur in an indirect mower. (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) [he examiner upheld the exactron of the road. Burton appealed to the Board of Cowty Commissioners, which affnmed. Burton then appealed again m the superior court, which mled that the Cowty 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 roqu¢ed to demonstrate 'rough proportionality' order the holding m Dolan v. City of Tigard, Sl2 U.S. 374, I l4 S.Ct. 2309, 129 L.Ed2d 304 (1994)." (FNS) The court concluded that the exacted read was an wconstilutional taking of private Uc' 2005 Thomson/W est. No claim to original U.S. Gov[. works. 958 P.2d 343, 91 Wn.App. 505, Burtou v. Clark County, (Wash.App. Div. 2 1998) property; [hat the road-related conditions should be "reversed and deleted" from the plat; and that the case should be "remanded for proceedings and detemnnation consistent with this [o]rder" (FN9) *350 'Phe parties then returned to the hearing examiner He 191 Wn.App. 5141 held more hearings, during which the cowry presented a new staff report, dated April 16, 1996, asserthrg [hat Burton's proposed development would generate ao additional thirty auto trips per day on nearby roads. On July 3l, 1996, the examiner held that "a court of ]aw ... has found that the proposed dedication and improvement required by the County road standards is no[ 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 no[ be dissimilar or disproportionate to the cost of impmvemerrts required to serve similarly sized lots in other subdivisions in the neighborhood. This is not [he 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 naNre avd extent of exaction [hat is being imposed. For this reasoq the Hearings Examiner reject[s] staffs supplemental findings because they fail [o justify [the exncted mad].[ (FNIO)] Based ov 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 recxacted 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 withont the exacted road. [91 Wn.App. 5151 I. [1] The main issue ie whether the federal Takings Clause prohibits the County from exacting a mad without just compensation. The Takings Clause appears in the FiRh Amendment to the United States Constitution. It provides that private properly shall not be taken for public use without just compensation. (FNtI) Its purpose is "[o bar Govemment from fuming some people alone to bear public burdens which, in all fairness and justice, should be bums by Page 6 the public as a whole." (FN12) I[ applies to the States through the Fourteenth Amendment's Due Process Clanse. (FN13) [2][3][4] The government may "lake" private land (FN14) for public use with or without formal condemnation proceedings. (F1V 16) The nature of its conduct may be a physical ac[ such as invading and ocwpying the land; (FNI6) a legislative *351 act such 191 Wn.App. 5161 as enacting a statute, ordinance or regulation; (FN17) or aquasi-judicial ¢et such as denying or wnditioning a development pemrit (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 iv some, but not all, economically productive ways. (FN22) At present, it appeam that the party claiming a taking has the burden of showing govemmental conduct that will constitute a taking, if not justified as a valid exercise of tore police power. (FN23) [5][6] Even though the Govemment 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 ie merely restticting, bat not eliminating, the ass of such land (FN24) As the United States Supreme Conr[ 191 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 wmmunity [citation omitted], avd the Takings Clause [does] not ttansforrrt [hat principle to one that requires compensation whenever the Slate asserts its power to evforce 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 properly as not to interfere with the general welfam of the wmmmity in which he lives." (FN26) Assuming that a claimant has shown govemmental conduct that will be a taking if not justified, the govenmrem bears *352 the burden ofjustifying its conduct as a proper exercise of the police power, at least when its conduct is quasi-judicial iv naNre. (FN27) Iv 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. Ca(ifornin Coas[a/ Commission, (FN28) [91 Wn.App. 5181 the Nollans acquired a California oceanfront lot located between Faris County Park, a public beach to the north, and the Cove, ¢ public beach to the south. The lot was © 2005 ThomsorJWest. No claim to original U.S. Govt. works. 958 P.2d 343, 91 W n.App. 505, Burton v. Clark County, (W ash.App. Div. 2 1998) divided mro two parts by an eight-foot-high seawall; its upland part was bonded 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 PeciCtc Ocean on the west. The lot's upland part was [he site of a dilapidated bungalow, which the Nollans wanted to replace with a modem three bedroom house. When [hey sought the necessary permit, however, the California Coastal Conunission required [hat [hey dedicate an easement for public use across the beach par[ of their lot The puryose of the easement, according to the initial report of the Commission's staff, was to "make it easier for the public to get to Aaria County Park and the Cove." (PN29) The Nollans appealed to the superior court, arguing that they could not be forced ro dedicate a public easement along the beach, "absent evidence that their proposed development would have a direct adverse impact on public awess 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 [he ocean" from the street; that the new house would "prevent the public 'psychologically ... from reahzing a stretch of wastline exists nearby [hat they have every right [o visit;' "and that the new house would "burden the public's ability to traverse to and along the shorefront" Hosed on these findings, Ore Commission concluded that i[ could and should exact from the Nollans, without compensation, "additional lateral access to the public beaches in the fomr of an easement across thetr pmperfy." (PN31) The Nollans appealed through the state court system [91 Wn.App. 5191 and ultimately to the United States Supreme Court. That Court fond no "essential nexus" between [he exacted easement and any public problem created or exacerbated by the new house. Thus, i[ concluded that the Commission could not exact [he easement without wmpensation. In the other case, Dolan v. City of TY'gard, (FN32) Dolan opemred 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 navemed the site's southwest comer and wes[em bomdary. Dolan applied for a permit to double the size of her store, pave a 39-space parking lot, and build another commercial building for renml to complementary businesses. The city refused the necessary permits tmless Dolan would d~oate (a) the creek's floodplain for use as a drainage and flood connol 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 ro the floodplain as a pedeafrian/bicycle pathway." (FN33) Dolan appealed, claiming "that the city ... has not identified any 'special quantifiable burdens' created by her new stare that would justify the particular dedications required from her which are no[ required from the public at large." (FN34) Attar various proceedings in the state court system, the case reached the United States Supreme Court. That Court posed *353 the questioq "[W]hat is the required degree of connection between the exactions imposed by the ciryand the projected impocls 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 scm[iny 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 Fiflh Amendment. No precise mathematical calculation is requfred, but the city must make same sort of individualized detemunation that the required dedication is related both in nature and extent to the Impact of [he proposed development[ (FN3~] Applying this answer, the Court upheld as a valid exercise of the police power the floodplain easement for purposes of drainage and flood connol. It struck, as not "roughly proportional;' the floodplain easement for purposes of public recreation and the additional l5-foot easement for a pedestrian-bike path. [7] In our view, Nollan, Dolan, and their Washington progeny stand for a[ least four propositions. First, when the government conditions a lend-use permit, it must identify a public problem or problems that the condition ie designed to address. If the government can identify only a private problem, or no problem at all, the govemmenl 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 legithate state interest." (FN38) The Dolan Court said that ro ~ 2005 Thomson/W est. No claim to original U.S. Govt. works. 958 P.2d 343, 9l 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 die 'legitimate state interest' and the pemdt condition 191 Wn.App. 521[ exacted by the city." (PN39) And this court previously said, about an easement exacted solely to allow the cornmeroial development of private land: [T]he exaction serves no public interest, let alone a reasonable one. The public has no interest in the cotnmemial development of the Berg/Cazlson property, and it is manifestly unreasonable for Kitsap County [o exact a commercial access easement to this commeroially land-locked parcel....[[(FN40)] [8][9] Second, the goverttment 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 mladonship ("nexus") between the development and the identified public problem; that the necessary relationship will exist iC the development will aerate 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 Corot rejected an easement that would have improved public access to the *354 beach, even [hough the Contrrdssion's staff report said improved public access was needed, because the Nollans' project, replacing a bungalow with a new house, would not make dre identified public problem, lack of public access, any worse [ban before. (PN42) Similarly, the Dolan court rejected Tigazd's exaction of a floodplain easement that would have enhanced the public's recreational oppornmifies, even though such appornmities were needed, because Dolan's project, a lazger retail outlet, [91 Wn.App. 5221 would not make the identified public problem, the poblic'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 govemment from requiring a developer to deal with problems of the developer's own making, but which is "to bar Government Crom forcing same people alone to bear public burdens which, m all fairness and justice, should be borne by the public as a whole." (FN44) [10] Third, the government moat show that its proposed condition or exaction (which in plain terms is just the governmenfs proposed solution to [he identified public ptblem) tends m solve, or at least to alleviate, the identified public problem In other words, the govemment must show a relationship Page 8 ("nexus") between [he proposed solution and the identified problem, and such relationship cannot exist unless the proposed solution has a tendency m solve or alleviate the idendfied problem. Thus, the Nolan Corot 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, [he Nolan Court would have allowed the exaction of "a viewing spa[ 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 mstom the view from the road. The Dolan Court likewise rejected the [91 Wn.App. 5231 exaction of an easement fox apedestrian/bike path, because the fact-finding adttdnis[mtive tribunal had failed [o find that such an easement would have (ae opposed to could have) a tendency [o solve or alleviate traffic congestion. Both cases represent the idea that government acts arbitrarily and i¢ationallg 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 govemment must show that its proposed solution to the identified public problem ie "roughly proportional" to that par[ of the problem that is crested or exacerbated by the landowner's development. Thus, as aheady seen, the Dolan Court *355 posed the question, "[W]hat is the required degree of connection between [1] the exaedoas imposed by the city and [2] the projected impacts oC the proposed development" (FN47) It answered by saying that the required connection was a 'teasonable relationship" best described by the term "rough proportionality," and tba[ the govemment "must make some son of individualized determination [ha[ the required dedication is related both m nature and extent to the impact of the proposed development." (FN48) The Washington Supreme Cotm mled similarly in Sparks e Douglas County, (FN49) where i[ noted that e regulatory exaction must be "reasonably calculated to prevent, or compensate for, adverse public impacts of the proposed development (FN50) The pupose, once again, is "tn bar Government from forcing some people alone [o bear public burdens which, in all fairness and justice, should be [91 Wn.App. 5241 borne by the public as a whole," (FN51) while at fire same torte leaving govemment free to require a developer ro rectify public problems insofar ae the developer has created such problems. © 2005 Thomson/West. No claim m 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 fora propositions boil down to two mlationships: a relationship between the project and the identified public problem, and a relationship between the identified public problem and [fie 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 Iha[ [he proposed condition or exaction (i.e., the proposed solution to an identified public problem) is reasonably related to al] or part of an identified public problem that arises from (i.e., is created or exacerbated by) the development project. Unless the govemmen[ makes this showing it lacks a "legitimate state interest" or a "legitimate public purpose" in imposing the condition or exaction. []1] We assume [hat the government may sometimes rely on the future as well as the present when attempting to establish these relationships. (FN52) At a minhnum, however, it may not rely on the Polme unless [he record furnishes a basis [91 Wn.App. 525] for inferring what the foreseeable fulme holds. (FN53) Thus, in (Inlimired v. Kitsap County, (FN54) where the county wanted m exact an easement in favor of a parcel known as the Berg/ Carslon property, we rejected the exaction because the county "intends [o hold the exacted property until some undefined forme time when Randall Way can be extended to connect with other, as yet unbuilt, roads," (FN55) and because "[t]here ie no expectation that the Berg/Cazlson property is to be developed at the same time as Unlirnited's development, or, for that matter, any time soon." (FN56) Avd 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 constmct a fast-food restaurant, but the city would not issue the necessary permits unless they dedicated a right of way through their land. "[N]one of [he real estate for [the road] ha[d] been acqurted by the City nor [was] there any indication ae to when, if ever, such real estate [would] be acquired by the City." (FN58) Rejecting the easement, the coivt stated: [N]o project was immediatety contemplated whereby the street would be cons[mcted nor is there any evidence regarding what [he particular project would involve. Purthermore, there is no evidence to indicate that the wna[mctron of the project... would create such additional traffic ae to requhe going forwazd with the proposed street Page 9 project As the evidence indicates, no other adjacent property owner would be requhed to dedicate any land for a public street unless a building pemdt is sought, nor would any other land now be acquired for a public street in dte area. It is difficult, if not impossible, [o see how this is [91 Wn.App. 526J anything more than a'land banking' operation which is clearly in violation of Neb. Const. art. I, section 2L[ (PN59)] Turning [o 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? [l2] We can quickly dispose of dte 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 rtilnirrtize "pocket neighborhoods" that lack access to ¢djoining neighborhoods. I[ also identifies, as related problems, traffic wngestron and emergency vehicle access. "fhe last, emergency vehicle access, has various facets, including (a) whether police and fire personnel can quickly reach the homes Burton intends to build, end (b) whether fns tracks responding to one of the homes can quickly [um around if called to soother 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 degce. Burton's project will bring more residents to [he neighborhood and generate about 30 vehicle trips per day on neighborhood roads. This means an increase in the need for adequate traffic crculation in and out of the neighborhood; in the congestion on neighborhood roads (with or without better circulatron); 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 relatonship between problem and solution requires more attention. The reason is [hat the record shows nothing about when, if ever, [he road being exacted from Burton will extend across the Maddux's pazcel and connect with Northeast 20th Avenue. To ascertain [he results of that omissioq 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 wnnects with Northeast 20th Avenue; and (c) the Cacmal question of when, if ever, the 2005 Thomson/West. No claim to original U.S. Gov[. 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 ae well as to the west; not all traffic will have to use the roads to the west police and fue vehicles will be able to enter the neighborhood from either direction; and fire trucks will be able m exit [he neighborhood without needing to lum around. Moreover, the exacted road will tend to alleviate the identified public problems in a way that is "roughly proportional" to the pmjecPs effect on [hose problems. Even [hough Burtons project will exacerbate the identified problems to only a small degree, the exacted road is only a small part of the solution to [hose problems, which is the creation of an overall sheet grid ae the area changes from wal 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. I[ will not better traffic ctrculation, for haffic will not be able to cimulete 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 fo [he west. It will not improve police and fns ingress, because all emergency vehicles will still have to come from the weal. I[ will not improve fire track egmss, for it will deadend of Burton's easfem property line with a temporary sNb not much different ftom the one that exists today at Burton's west property line. It will, m short, be a road to nowhere. The cmcial questioq theq is this: If the exacted mad is built across Burton's parcel, whey, if ever, will it extevd acmes Maddux's parcel avd connect with Northeast 20th Avenue? Like any other question of fact, it may be answered 191 Wn.App. 5281 directly or circumstantially. (PN60) It is not answered here, however, because the record ie devoid of any evidence from which to infer when, if eveq 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 canner( with N.H. 20th Avenua." (PN61) (Emphasis added). Mother county staff report said only that Northeast 65th Street was intended "for even[ua! connection with NE 20th Avenue." (PN62) (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 leas when if might connect, although he did find that "a future street plan has not been adopted for this area." (FN64) The Board of Cornmiesioners found only that the exacted road was needed "far 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 infetrvtg that the exacted road will cormect with Northeast 20th Avenue in the fomseeable future, and without such an inference, [he exacted road lacks any tendency [o salve or even alleviate the public problems that the wunty identifies. We wnclude that the wu¢ty has failed to bear its burden of showing that the 191 Wn.App. 529] exacted mad 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. Mother issue is whether the county violated Burton's right to substantive due process. We need not reach this issue, because Bmrton's federal takings claim is diapositive. (FN66) In passing, we observe [ha[ the ideas inherent m the federal Takings Clause may be the same as [hose in the "Itnee-prong test" that determines whether a regulation violates snbsantive due process. (PN67) •358. III. [14][15] The last issue u whether Burton is entitled to 191 Wn.App. 5301 damages and reasonable attorne}'s fees. He is not, because he never alleged a claim for damages or reasonable attorney's fees m any of his pleadmgs. (FN68) Moreover, he initially sought a writ of certiorari, and in that type of action the superior corrrt may not entertain a claim far damages or fees that the tribunal below lacked jnosdicfion to award. (FN69) The parties' remaining arguments lack merit or need not be reached. We affum the examiner's order approving the plat without the exacted road. SEIIVFELD and HUNG, IJ, concur. (PNI.) The planers wen mlying in part on Clark County Code 12.05.370. It provides: (J 2005 Thomson/West. No claim [o 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 constmeted or created iu such a mamer as [o be able to be extended or widened in accordance with adopted road plans or this chapter, then: (1) All residences, buildings or stmemrea shall be constmc[ed 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 [o meet the reasonable minimum requirements of good and safe traffic ctrwlation, 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, shell 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 wnstim[ional analysis that follows. (FN2.) Although we express this proposition in positive [emrs in the text, we could just as well express it in negative terms ae 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) ai 77. (FN4.) Clerk's Papers (No. 21866fi-II) at 65. (FNS.) Clerk's Papers (No. 21866-6-]I) at 67. (FN6.) Clerk's Papers (No. 21866-6-![) at 66. (FN7.) Clads Papers (No. 20372-3-II) at 85. (ENB.) Clerk's Papers (No. 20372-3-1I) at 741. (FN9.) Clerks Papers (No. 20372-3-B) at 74I-42. At [his juncture, Bruton and the county each filed a notice of appeal from the superior court's mling. Simultaneously, each also sough[ further proceedings before the hearing examiner. The result, es the county puts it, was that the action "developed branches," County's opening brief at 6, one in this court and one m [he tribunals below. When the "branch" m the tribunals below fnrished-- 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 en 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 ling] blanches' in the absence of an appropriate order of the trial court.) Consequently, we elect to treat each party's first notice of appeal as ahandoned or, m what amounts [o the same thing as subsumed in its second notice of appeal. (FN I O J Clerk's Papers (No. 21866-6-11) at 479. (FN1 L) U.S. Const. amend. V. (PN l2.) First Fnglish Evangelical Lutheran Church v. Los Angeles County, 482 U.S. 304, 318-19, 107 SLt 2378, 96 L.Ed.2d 250 (1987) (citing Armstrong v. United States, 364 U.S. 4Q 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. 4Q 80 S.Ct. 1563, 4 L.Ed.2d 1554); Nollan v. California Coastal Comm'n, 483 U.S. 825, 835 a 4, 107 S.Ct. 3141, 97 L.Ed2d 677 (1987) (also citing Armstrong, 364 U.S. 40, 80 S.Ct. 1563, 4 L.Ed.2d 1554). See also Eastern Enter. v. gpfe; 524 US. 498, ---, t18 S.Ct. 2131, 2146, 141 L.Ed.2d 451 (1998). "358_ (EN l3.) Dolan, 512 U.S. at 383, 114 S.Ct 2309; Webb's Fabulous Pharmaeiesy lne. v. Beckwith, 449 U.S. 155, 160, 101 S.Ct. 446, 66 L.Ed.2d 358 (1980); Chicago, Burlington & Quincy R.R. Co. v. City of Chicago, 166 U.S. 226, 241, 17 S.C[. 581, 41 L.Ed. 979 (1897); Sintra, Inc. v. City ofSeattle, 119 Wash.2d 1, 13, 829 P.2d 765, cert. denied sub nom. Robinson v. City of Seau[e, 506 U. S. 1028, 113 S.Ct. 676, 121 L.Ed.2d 598 (1992). (FN I4.) We refer only to private land because we have no occasion to consider haw the Takings Clause affects property other than land. Cf. Phillips v. Washington Legal Found, 524 U.S. 156, ---, I18 S.Ct. ]925, 1933, 141 L.Ed.2d 174 (1998). (FNlS.) First English, 482 U.S. at 316, 107 S.Ct. 2378 ("While the typical taking occme when the government acts to condertm property in the exercise of its power of endnent domain, the entire doctrine of inverse condemnation is predicated on ©2005 Thomson/West. No claim [o original U.S. Gov[. works. 958 P.2d 343, 9] Wn.App. 505, Burton v. Clark Cowty, (Wash.App. Div. 2 1998) the propoeitiw that a taking may occur without such formal proceedings."). See also Sinbq Inc. v. City of Seattle, 131 Wash2d 640, 656, 935 P.2d 555 (1997); Sintrq 119 Wash.2d at l3, 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.C[. 531, 7 L.Ed.2d 585 (1962); (/Hired Stotes v. Causby, 328 O.S. 256, 26 L, 66 S.CC 1062, 90 L.Ed. 1206 (1946); United States v. Cress, 243 U.S. 316, 37 S.Ct. 38Q 61 L.Ed. 746 (1917). See also Eastern Enter., 524 U.S. at --, 118 SCt. 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 Waeh.2d 901, 907, 904 P.2d 738 (1995); Guimont v. Clarke, l2l Wash2d 586, 597, 854 P.2d 1 (1993), cert. dented sub nom. Dept. of Community Dev. v. Guimont, 510 O.S. 1176, I L4 S.Ct. 1216, 127 LEd.2d 563 (1994); Guimont v. City of Sentt[e, 77 Wash.App. 74, 80, 896 P.2d 70, review denied, 127 Wash.2d 1023, 904 P.IDd 115p (1995). (FN17.) Eg., Bastern Enter., 524 U.S. 498, 118 S.Ct 2131; Dolon, 512 U.S. 374, 1 L4 S.Ct. 2309; Lucas, 505 U.S. 1003, 112 S.Ct. 2886; Loretto, 458 O.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). (PN18.) E-g-, Dolan, 512 U.S. 374, 114 S.Ct. 2309; Nollan, 483 U.S. 825, 107 S.Ct. 3 L41; Sparks, 127 W ash.2d 901, 904 P.2d 738. (FN19.) E.g., FSrst English, 482 U.S. at 318-19, 107 S.C[. 2378; Sintra, 131 Wash.2d at 656-57, 935 P.2d 555. (FN20.) Lucas, 505 U.S. at 1015, L12 S.Ct. 2886; Cutmont v. Clarke, 121 Wash.2d at 597, 854 P.2d 1. See, e.g. Loretto, 458 U.S. 419, 102 S.Ct. 3164; Kaiser Aetnq 444 U.S. 164, 100 S.Ct. 383; Griggs, 369 U.S. 84, 82 SCt. 531; Causby, 328 U.S, at 261, 66 S.Ct. 1062; Portsmouth Harbor Land & Hotel Co. v. United Stotes, 260 U.S. 327, 43 S.Ct. 135, 67 L.Ed. 287 (1922); Cress, 243 U.S. 316, 37 S.C[. 380. *358_ (PN2L) Lucas, 505 U.S. at 1015-18, 112 S.Ct. 2886; Cuimont v. Clarke, 12] Waeh.2d at Page 12 598, 854 P.2d I; Guimont v. Seattle, 77 Wash.App. et 8Q 896 P.2d 70. (FN22.) Dolan, 512 U.S. at 384-85, 114 3.Ct. 2309; Nolan, 483 U.S. at 834-35, 107 S.Ct. 3141. (FN23.) See Eastern Enter, 524 U.S. a[ --, 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.) PruneFard Shopping Ctr. v. Robins, 447 U.S. 74, 81, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980) (State, in exercise of ire police power, may adopt reasonable restictions on private properly so long as restrictions do no[ amount to taking without just compensation); Goldblotd v. Town of Hempstead, 369 U.S. 590, 592, 82 S.Ct. 987, 8 L.Ed2d 130 (1962); Mugter v. Kansas, L23 U.S. 623, G64-65, 8 S.Ct. 273, 31 L.Ed. 205 (1887); Sparks, 127 Wash.2d a[ 907, 904 P.2d 738; Onlimited e Kitsap County, 50 Wash.App. 723, 727, 750 P.2d 651, review denied, 111 Wash.2d 1008 (1988) ("property interest can be exacted without cortrpensation only upon a proper exercise of government police power"). (FN25.) Keystone Bldumfnous Coal Assn v. DeBenedictis, 480 U.S. 470, 492, 107 S.Ct. 1232, 94 L.Ed.2d 472 (1987) (quoting Mug[er, 123 U.S. at 664-65, 8 S.C[. 273). See also Christianson, 133 Wash.2d at 666, 946 P.2d 768 (Talmadge, J, wncurzing) ("the most fundamental, and perhaps least controversial, aspect of the police power' is "the absolute right of society to protect end preserve public health"); Presbytery of Seattle v. King Caunry 114 Wash.2d 320, 329 n. 13, 787 P.2d 907 (1990). If the statement in the text were not tme, the government would have [o pay compensation even to enjoin a landowner from maintaining a public nuisance. See Gaited Steelworkers v United States, 361 llS. 39, 6Q 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., consorting)); Pine City v. Munch, 42 Minn. 342, 44 N.W. 197, 198 (1890) (a mwicipal corporation may resort ro a court of equity m aid in enforoing its public dudes to preserve the health of ire inhabitants). (FN26.) Simpson v. City of North Platte, 206 Neb. 240, 292 N W2d 297, 300 (1983) (quoting McQuilliq Municipal Corporations § 32.04 (3d Uc' 2005 Thomsot/tlrest. 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) ed.1977)). Simpson ie quoted and relied on in Dolan. See also Sparks, 127 Wash.2d at 914, 904 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 couny shall exact a cash development fee "which the county _. cannot establish is reasonably necessary ae a direct result of the proposed development or plaP~ (emphasis added). (FN28.) 483 O.S. 825, 836, 107 S.Ct. 3141, 97 L.Hd2d 677 (1987). (FN29.) Nollon, 483 U.S. at 828, 107 S.Ct. 3141. (FN30.) Nollon, 483 U.S. at 828, 107 S.Ct. 3141. (FN31.) Nolan, 483 U.S. at 828-29, 107 S.C[. 3141. '358_ (FN32.) Sl2 U.S. 374, tl4 S.Ct. 2309, 129 L.Pd.2d 304 (1994). (FN33.) Dolan, S l2 U.S. at 380, 114 S.Gt. 2309. (FN34) Dolan, 512 U.S. et 385-86, 114 S.Ct. 2309. (FN35.) Dolan, 512 U.S. a[ 375, 114 S.Ct. 2309 (emphasis added). (PN36.) Dolan, 512 U.S. at 391, 114 S.C[. 2309 (emphasis added). (FN37.) Nollon and Dolan use the term "legitimate state interest" Dolan, SI2 U.S at 386, 114 S.Ct. 2309; Nollon, 453 U.S. at 841, 107 S.Ct. 3141. A number of Washington cases use [he term "legitimate public purpose." Christianson, 133 Wash.2d at 661, 946 P.2d 768; Presbytery, 114 Wash.2d a[ 330, 787 P.2d 907; Dnlimited, 50 Wash.App. at 727, 750 P.2d 651. The two terms are synonymous for present purposes. (FN38.) Nollon, 483 U.S. at 541, 107 S.Cf. 3141; see also Nollon, 483 0.S. a[ 834, !07 S.Ct. 3141 (quoting Agfns v. Tiburon, 447 U.S. 255, 260, 100 S.Ct 2138, 65 L.Fd.2d 106 (1980) ("lend use regulation does not effect a taking if it'substaitially advance[s] legitimate state interests' and does not 'den[y] an owner economically viable use of his land"')) (FN39.) Dolan, S l2 U.S. at 386, ] l4 S.Ct.2309. Page 13 (FN40.) (In7imi[ed, 50 Wash.App. at 727, 750 P2d 651. (FN41.) Luxembourg Croup, Ina v. Snohomish County, 76 Wash.App. 502, 505, 887 P.2d 446, review denied, 127 Waeh.2d 1005, 898 P.2d 307 (1995); OnBmfted, 50 Wash.App. at 727, 750 P.2d 651. (FN42.) We also mte the Nollon Court's comment, "Had California simply required the Nollans to make an easement across their beachfront available to the public on a perznaneu[ basis in order to increase public access [o the beach, rather [hen wnditioning their permit to rebuild their house on Oreir agreeing to do so, we have no doubt [here would have been a taking." Nolan, 483 U.S. a[ 831, 107 SCt. 314E Pssentially, this is a negative foanulation of the proposition m 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 queatioq had the city simply required petitioner to dedicate a chip of land along Fanno Creek for public use, rather than conditioning the grant of her permit to redevelop her property on such a dedicatioq a taking would have occurred." Dolan, 512 U.S. a[ 384, 114 S.C[. 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 [he permitting process as a vehicle for solving public problems no[ created or exacerbated by any project. (FN44.) Dolan, 512 U.S. at 384, 114 S.Ct. 2309; Nollon, 483 U.S. at 835 n. 4, 107 S.Ct. 3141. See also TY'imen Dev. Co_ v. King County, 17A 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"). (F1V45.) Nollon, 483 U.S. a[ 836, 107 SC[. 3141. (FN46 J Nol/on summarized this by eta[ing that if the government can constitutionally prohibit, it can constitutionally condition, but "constiNtional propriety disappears ... if the condition substituted Cor the prohibition utterly fails to further the end advanced as the justification for the prohibition." Nollon, 483 U.S. at 837, 107 S.Ct. 3141. Cr2 2005 7homson/West. No claim to original U.S. Govt. works. 958 P.2d 343, 91 Wn.App. 505, Burton v. Clark Cotmty, (Wash.App. Div.2 1998) *358_ (FN47.) Do[on, 512 U.S. at 375, 114 S.Ct. 2309. (FN48.) Dolan, S I2 U.S. at 391, 114 S.Ct. 2309. (PN49.) L27 Wash.2d 901, 907, 904 P.2d 738 (1995) (FN50.) Sparks, I27 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 [he exaction it imposes is'roughly proportional' to the impact of the development." Sparks, 127 Wash.2d at 912, 904 P.2d 738 (emphasis added). (FIVSIJ Dolan, 512 U.S. at 384, 114 S.Ct. 2309; Nollan, 483 U.S. at 835 0.4, 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 [he exaction of easements for the widening of certain roads: But the fact [ha[ [he dedications in this case were imposed, in part, to accorrnnodate 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. (FN63.) Because the rewrd can never give a basis for inferring what the non-foreseeable future holds, the word "foreseeable" may be redundant. (FN54.) SO Wash.App. 723, 750 P.2d 651 (1988). (FN66.) (Inlimited, 50 Wash.App. at 727, 750 P.2d 651. (FN56.) [Jnlimited, 50 Wash.App. at 727, 750 P.2d 651. (FN57.) 206 Neb. 240, 292 N. W.2d 297 (1983). (FN68.) S'mpsan, 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 quesdon mould be answered by the county's statement that it Page 14 will condemn and constmet a road across Maddux's parcel if, after a certain period, Maddux has not done so; by a combination of Maddrix's statement that she intends to develop soon and the wunty's statement that it will exact a road when she applies for a permit to develop; by evidence showhrg [hat m 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 m a variety of other ways. (FN61.) Clerk's Papers (20372-3-I1) at 96. (FN62.) Clerk's Papers (20372-3-II) at 30. (FIV63.) Clerk's Papers (20372-3-II) et 125-26. (FN64.) Clerk's Papers (20372-3-1I) at716. (FN66.) Clerk's Papers (20372-3-11) at 10. (FN66.) See Guimont v. Clarke, 121 Wash.2d at 594, 854 P.2d I; 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; Gufmon( v. Clarke, 121 Wash.2d at 609, 854 P.2d 1. Rephrased to include al] governmental conduct, instead of just one specific type of such conduct (the enactment of a regulation), [he fast prong is the same as asking whether governmental conduct (i.e., the government's proposed solution to a perceived prohlem) is aimed at a public problem, as opposed to a private one. Presbytery, 114 Wesh.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 Wseh.2d at 330, 787 P.2d 907. The third prong is at least arguably the same ae asking whether the governmenfe proposed solution is roughly proportional to Iha[ 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 reguladons [i.e., a specific form of governmental conduct] that require the landowner 'to shoulder ao ewnomic burden, which in jusfice and fairness, the public should rightfully beeq' Christianson, 133 CS 2005 Thomson/West. No claim to original U.S. Govt. works. 958 P.2d 343, 91 Wn.App. 505, Burton v. Clark County, (Waeh.App. Div. 2 1998) Wash.2d at 664, 946 P.2d 768, it would seem that governmental conduct is not "unduly oppressive" if i[ goes no farther than m require the developer to rectify public problems of the developer's own crtytlon. See generally Christianson, 133 Wesh.2d at 667, 946 P.2d 768 (Talmadge, J., concumng); 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 identity]"), car[ denied, 486 U.S. 1022, ]08 S.Ct. 1996, 100 L.Bd.2d 227 (1988). Regarding the propriety oC substantive due process as a overall concept, see Eastern Enter., 5240.5. 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.Bd. 937 (1905). •358_ (FN68.) Burton did argue for damages and Page 15 fees in a trial brief. He now claims that his argument was litigated and decided by the hial court without objection from either pally. In fact, however, the trial court declined to consider his argument, saying be would have to pursue it in a sepazate proceeding. Report of Proceedings (Oct 27, 1995) at 3Cz (FN69.) Punton v. City of Seattle Public Safety Comm'n, 32 Wash.App. 959, 97Q, 650 P.2d 1138 (1982), review denied 98 Waeh.2d 1014 (1983), overruled on other grounds try Danielson v. Q'ry of Seattle, (O8 Waeh.2d 788, 742 P.2d 717 (1987); see also Cohn v. Department of Corrections, 78 Wash.App. 63, 69-7Q, 895 P.2d 857 (1995) (superior court lacked authority to award tees where adrniniehative board it was reviewing lacked authority to award fees); cf. Price v. Farmers Insurance Co., 133 Wash.2d 490, 946 P.2d 388 (] 997). ~ 2005 Thomson/West. No claim m original U.S. Gov[. works. 691 P.2d 229, 38 Wn.App. 904, Miller v. City of Port Angeles, (Wash.App. Div. 2 1984) *229 691 P.2d 229 38 Wn.App. 904 Court of Appeals of Washington, Division 2. Sohn Z. MILLER and Mary E. Miller, husband and wife, Respondents, v. The CITY OF PORT ANGELES, a municipal corporation oC the Slate of Washington; Sam Naguewood, 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 [heir capacities as City Councilmen of the City of Port Angeles, Appellants. No. 6481-2-t1. 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 Supetror Court, Clallam County, Jey W. Hamilton, 1., by summary judgment order certified appealable, formd that disputed conditions were uncons[iNtional special assessments, and violated agreement between city and developezs. Damage claims were dismissed. Both parties appealed. The Comt 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 plop (2) requirement that developers widen roads did not amouvt to unwna[itutional [ax or assessment for road improvements; (3) requirement that developers provide then share of impmvemen[ costs with respect to roads before there was any guarantee city would be able tm raise the rest of the money was not unconstitudonally vague; (4) city could require widening of roads although one of the roads was outside of city's jurisdiction; and (6) agreement between developers and city was invalid and unenforceable. Affmned in part; reversed in part; remanded with dircefions. West Headuotes [I] Appeal and Error C^~80(4) Page 1 30 ---- 30IIIDecisions Reviewable 30III(D) Finality of Determination 30k75 Final Sudgments or Decrees 30k80 Detemrination of Controversy 30k80(4) Necessity for Accounting or Inquest of Damages. Judgment of liability is not ordinarily appealable until damages have been awarded. CR 64(b). [2] Appeal end Error G^5366 30 ---- 30V II Transfer ofCause 30VR(E) 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 x670 149E ---- 149EXI1l judicial Review or Intervention 149Ek668 Time for Proceedings 149Ek670 Periods Applicable. (FOrmedy 199k2A 16(5) Health and Environment) Tkw{y-day limit for contesting determination that envhonmeutal impact et¢tement ie requhed applied to developers' claims that city acted in bad faith in requiring prepazation of envhonmental impact statement prior to development of subdivision. West's RCWA 43.210.080. [4] Zoning and Plamdng 0=,.5606 414 - 4I4X Judicial Review or Relief 414X(0) Scope ofReview 414X(0)1 In General 414k606 Permissions or Certificates, Decisions Relating To. [See headno[e text below] Cca 2004 W est, a Thomson business. No claim to original U.S. Gov[. works. 691 P.2d 229, 38 Wn.App. 904, Miller v. City of Port Angeles, (Waeh.App. Div. 2 1984) Page 2 [4] Zoning and Planing 65610 414VB1(A) In General 414k382.1 Maps, Plats, or Plans, Conditions 414 ---- 414X Judicial Review or Relief 414X(C) Scope ofReview 414X(C) l In General 414k608 Arbitrary, Capricious, or Unreasonable Action 414k610 Decisions of Boards ar Officecs. Decision by city to gran[, deny or impose conditions upon proposed plat is administrative or quasi-judicial in nature; review is limited to detemtining whether it satisfies constitutional requhements and is not arbitrary and capricious. West's RCWA 58.17.11Q 58.17.180. [5] Zoning and Planing C=am- 685 414 --- 414X Judicial Review or Relief 414X(C) Swpe ofReview 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 irsrpased 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. U-180. [6] Zoning and Plenniug C^,~- 3822 and Agreements 414k382.2 Sheets, Improvements, and Utilities. City acted reasonably by requiring developers m widen adjacent roads as condition to approval of subdivision plat where roads which would receive mast of traffic from proposed subdivision would not be adequate to handle it and were aheady hazardous because they were narrow and had no shoulders. West's RCWA 58.17.110. [8] Mnicipal Corporations 6^5405 268 ---- 268IX Public Improvements 268IX(E) Assessments for Benefits, and Special Taxes 268k405 Name of Assessment or Tax. City's requirement that developers widen roads adjacent to subdivision as conditiou to approval of subdivision plat did not anon[ to unconstiNtional [ax or assessment for road improvements, where, although burden of improving [he roads was not imposed upon all adjacent property owners, need for improvements arose directly from the development, and developers were not required [o pay more than their share of [he costs. West's RCWA 58.17.110. [9] Municipal Corpomtious C^.y405 268 ---- 268IX Public Improvements 268IX(E) Assessments for Benefits, and Special Taxes 268k405 Nalme of Assessment or Tax. 414 -- 414VIII Pemdts, Certificates and Approvals 414VN(A) In General 414k382.1 Maps, Plats, or Plans, Conditions and Agmzments 4I4k382.2 Stree6, Improvements, and Utilities. Before approving a subdivision, local govemment must wnaider adequacy of awes to and within proposed subdivisioq and is empowered to wndition approval of the plat upon adequate access. West's RCWA 58.17.110. [7] Zoning and Planing x382.2 414 ---- 414VIIIPermits, Certificates and Approvals 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 0.5382.2 414 ---- 414VB1 Pemrits, Certificates and Approvals 414VII1(A) In General 414k382.1 Maps, Plats, or Plans, Conditions and Agreements 4I4k3822 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. 69L P.2d 229, 38 WaApp. 904, Miller v. City of Port Angeles, (Wash.App. Div. 2 1984) Page 3 measures within proper exercise of dty's police poweq and it can require that costs of the measares be borne by those who created the need. West's RCWA SS.l7.110. [1l] Zoning and Planning C^~382 414 ---- 414VIII Pemti[s, Certificates and Approvals 4l4 VIll(A) In General 414k382 Conditions Attached to Pemdssioq in General. Conditrons imposed on special use pemdts are upheld if [hey do not offend any provision of zoning ordinance, do not require legal conduct on part of pemtittee, are in the •229 public interest, are reasonably calculated m achieve some legitimate objective of zouing ordinance, and are not umrecessarity burdensome or onerous to landowner. jurisdiction. [I4] Zoning and Planning G~381.5 414 ---- 414VIII Pemrits, 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 no[ inwnsietent with [he public health, safety and welfare and that they comply with requirements of State Environmental Policy Act; it cannot avoid dds responsibility and it cannot contract away its police power. West's RCWA 58.17.110. [15] Zoning and Plaaning C^`_+382b [12] Zoning and Planning X382.2 414 - 4l4VIII Permits, Certificates and Approvals 414VIII(A) In General 414k382.1 Maps, Plats, or Plans, Conditions and Agreements 414k382.2 Sheets, Improvements, and UtdiHes. City's mquaement that developers provide their share of improvement costs with respect to roads adjacent to subdivision before there was any guarantee city would be able [o raise rest of the money was not unwns[imtionalty vague due to possrbility of improvements and ultimate vests remained uncertaiq however, developers were emitted to assurance it they did not get improvements they were helping ro finance, [hey would get their money back. [13] Zoning and Planning x3822 414 ---- 414VIII Pemrits, 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 aanexation or wnsen[ of government having 414 ---- 414VIII Pemtits, Certfica[es and Approvals 414VIII(A) In General 414k382.1 Maps, Plate, or Plans, Conditions and Agreements 414k382.6 Other Conditions or Agreements. (FOZmedy 414k382.1) Agreement between developers and city was invalid and unenforceable to extent th¢t it could be read as prohibiting city from imposing additional conditions on development no matter what sort of development was produced. Wesfs RCWA 58.12110. [l6j Zoning and Planning G~353.1 4I4 ---- 414VII Administration m Genera] 414k353 Powers, Duties, and Liabilities 4I4k353.1 In General. (Pormedy 414k363) Imposition of conditions of a subdivision involves discretionary governmental acts and is protected by discretionary irrmrunity. [l7] Zonng and Planning G`353.1 4l4 ---- 414VII Administration in General 414k353 Powers, Duties, and Liabilities ~J 2004 W est, a Thomson business. No claim to original U.S. Gov[. works. 691 P.2d 229, 38 Wn.App. 904, Miller v. City of Port Angeles, (Wash.App. Div. 2 1984) Page 4 414k353.1 [n General. seeking a writ of review, a declaratory judgment invalidating the conditions, and damages. The writ (Formerty 414k353) was issued by stipulation and a retain was made in due course. Developers wnld not remover 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 Willi¢m R. Hickman, Seattle, Craig D. Rnurioq Ciry Atty., Port Angeles, for appellants. Clyde R. Cory, Jr, Bellevue, for respondents. WORS WICK, Acting Chief Judge. We are c¢Iled upon to decide whether the City of Port Angeles has power to impose certain conditions on a real estate development. The challenged conditions involve [he improvement of two roads, one of which is outside the City. We hold the conditions valid, but that me 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 amexation, the Millers developed those lots for single family residences. In 1978, they submitted a preliminary plat for the development of 144 multifamily mils on the rest of the property. The City detemrined that an EnvBomnental Impact Statement was required. The EIS projected ¢n additional 778 vehicle trips 138 Wn.App. 9061 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 mcmase on Melody Lane to the smth. The EIS predicted that eccidenis would increase on these already hazardous roads. As a consequence, the CiTy attached conditions to its approval of the plat (ENI) Condition 1.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 138 Wn.App. 9071 comty road, this condition was to apply only if the road moos amexed to the City or the comty agreed N the improvements. Condition l.b inquired the Millers to contribute about $60,400 to a Golf Course Road Arterial Improvement Fmd, aimed at improving a portion of that road north of the development. The Millers brought action in Superior Court [l][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 definitive rulings were amounted; a year went by before one of these ratings found its way into an order. It will suffice for present purposes ro note thaS 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 no[ imposed on all property abutting the road. It also found the conditions m violation of the 1973 agreement. It held that the Melody Lane condition was ultra vices. Damage claims based on allegations of negligence and wrongful requhemevt of an EIS were dismissed. The Millem were 138 Wn.App. 9081 allowed to pursue their damage claims for breach of contract, subject [o limits as [c the period of time involved. Further proceedings were stayed pending [his appeal by both parties. *233 A multitude of issues is raised concerning [he validity of the conditions, the City's right to require improvements of a county mad, the effect of the 1973 agreement, and [he City's exposure m liability for damages. We hold that the conditions are valid, [hat the City has [he qualified power to require improvement of a comty road, that the 1973 agreement does not-md could not--affect the Citys poweq and that the City is not liable for damages. However, we hold that one conditron must be clarified. [3] At the outset, we observe that the issues raised here were properly decided by summary judgment for there ere 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 m bad faith in requ¢ing preparation of an EIS. They argued that the City's actions stemmed from a desire to discourage the development, or at least delay it m[il neighborhood opposition could be orgartized. They base [his supposition on [he friendly relations between a certain City comcilman and an architect who had lost the bid on the subdivision. This argument, in addition to being purely speculative, is b¢rred by the Millers' failure to contest within the statutory 30-day fime firm[ 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 Part Angeles, (Waeh.App. Div. 2 1984) Page 5 43.21C.080; Hayden v. Pon Townsend, 93 Wash.2d 870, 613 P.2d 1164 (1980); Oden Inv. Co. v. Seattle, 28 Wesh.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 wnditions whatever concering roads should have been imposed. We disagree. [4][5] A decision to grant, deny or impose wndi[ions upon a proposed plat is administrative or quasi-judicial in ualure. 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) Leche[t v. Seattle, 32 W esh.App. 831, 835, 680 P.2d 240 (1980) To suweed 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 wse. Wes[ Hf([ C7rizens for Controlled Dev. Density v. King Cy. Council, 29 Wash.App. 168, 627 P2d 1002 (1981). They have not done so. [6J[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. If must consider the adequacy of access to and within [he proposed subdivision, and it is empowered to condition approval of the plat upm adequate attess. Leefielr v. Seatt/e, supra. The information collected in [he environmental review process indicated that the roads which would receive mast of the haffic from the subdivision simply were not adequate to handle it Melody Lane and Golf Coarse Road were already hazardous because they were narrow and had no shoulders, and because passing eight distances were restricted by the rolling [wain. The EIS predicted an increase in traffic accidents as a result of the vehicular trips generated by the project In addition, the fire deparmment pointed out [hat because the development was farther than the recon¢nended distance from the nearest fire station, Golf Course Road "234 would have to be widened to pemmit 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 haffic. However, it was also noted in the 818 that unstable flow, wngestion and intolerable delay can ocour well below capacity. A need for the improvements was clearly demons[mted, d¢ectly related to dte traffic which would be generated by the development The City acted reasonably to meet that need. The conditions were not arbihary and capricious. [8] The Millers ne# contend that, because the burden of improving the roads was not imposed upon al] adjacent property owners, Nte conditions were unconstitutional. 17ds position is based on the argument that the conditions amounted to a tax or assessment for mad improvements. We disagree. [9][10] Not all requirements fox payment by a government body are taxes. Where the fees are intended primarily [o regulate the development of e specific subdivision and not simply to raise revenue, they will rat be considered taxes. HYl(fs Homes, [na v. Snohomish Cy., 97 Wash.2d 804, 650 P.2d 193 (1982). Widening sheets and installing enntrols for the safety of pedestrians and vehicle traffic are regulatory measures within the proper exercise of the (.Pty's police power, and it can require that the cost of these measures be bore by those who created the need. See State er rel. Myhre v. Spokane, 70 Wash.2d 207, 216, 422 P.2d 790 (1967); Gera v. Tncomq 12 Wash.App. 883, 533 P.2d 416 (1975). [11] The need for the improvements arose directly from the development. Moreoveq the Millers were no[ required to pay more than [heh share of the cost. "They were required m improve only the side of Melody Lane that abutted [heir property. Their contributions to the Golf Course Road Arterial Improvement F~md 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 Cunds. On these facts, we fail to see how the City acted unfairly in carrying out its responsibilities under RCW 58.12 110. (FNS) [l2] The Millers also argue that the condition pertaining [o Golf Course Road was u¢constilutionallyvogue because the possibility of the improvements and the ultimate cost remained uncertain (FN6) We are not persuaded. Conslmction costs can rarely be known precisely in [he planning stages and [he fact [hat actual expendihves may vary, even substantially, from the estimates is not enough to invalidate the conditions. See Pacific C}~. v. Sherwood Pacfc, lnc., 17 Waeh.App. 790, 567 P.2d 642 (1977). :t~ 2004 W eat, a Thomson business. No claim to original U.S. Govt. works. 691 P.2d 229, 38 Wn.App_ 904, Miller v. City afPort Angeles, (Waeh.App. Div. 2 1984) Page 6 ftoweveg inasmuch as the Millem are being required to provide their share of the *235 improvement costa before there is auy guarantee the City will be able to raise the rest of the money, they axe entitled to some assurance drat if they do no[ get Me improvements they are helping to finance, they will get dreir money back. We believe that is what the City intended, but condition 1.6 does no[ clearly say so. Paragraph 6 provides: [38 Wn.App. 9121 "vi. If the moneys deposited by [he developer into the Golf Coume 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 relumed m the developey in ¢ccordance with Sechon 4 of Ordinance No. 2094. The Millers argue that under this language, all or part of their money can be spent in obtaining financing, whether or not the improvements am undertaken These adrrrinistra[ive costs ate not directly related m [he problems generated by the development and cannot be charged to the Millers. Should the improvements not be accomplished, rhea money must be relumed, and paragraph 6 should say so explicitly. This is an easily cooected error, however, and does not require invalidation of condition l.b. Under circumstances such as these, an appellate court may carom the case to the agency or govenring body to permit it [o cortect the oversight. Skold e Johnson, 29 Wash.App. 541, 553, 630 P.2d 456 (1981). See olsa Burris v. Kitsap C}c, 93 Wash.2d 843, 613 P.2d 1 L48 (1980), and Washington Pub[ie Employees 9ss'n v Comm. College Dist. 9, 31 Wash.App. 203, 642 P.2d 1248 (1982). [I3] The Millers next contend that even if such wvditious could he imposed under proper circumstances, they cannot involve property outside the local government's jurisdiction. We disagree. these than to require it to avoid the problems by 138 Wn.App. 9131 denying the developmeuts. Therefore, we hold that a City may properly require an improvement outside of its territorial jurisdiction if it condifions [hat requirement on annexation or dre consent of the govermnent having jurisdiction. [14][15] Phrallg the Millers contend tlra[ the City was prevented by the 1973 agreement from imposing any additional conditions on then development. Om response is short. The Ciry is required and empowered to make sure that subdivision developments are not inconsistent with dre public health, safety and welfare and that they comply with the requirements of SBPA. RCW 58.17.110; Loveless v. Yanks, 82 Wash.2d 754, 765, 513 P.2d 1023 (1973). It cannot avoid this responsibility and it cannot conhact away its police power. Raymond Lumber Ca. v. Raymond Light & Water Co., 92 Wash. 33Q, 159 P. 133 Q916); Terrace Heights Sewer Dist of Ynkima Cy. v. Young, 3 Wash.App. 206, 473 P2d 414 (1970). If and to dre 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 unenPomeable. (FN7) [16][17] Because we hold dre conditions valid, we need not discuss damages. However, we feel compelled to note that damages simply would no[ be recoverable m [his case. The imposition of conditions on *236. a subdivision involves discretionary governmental acts and is protected by discretionary irrunurdty. See Northwest Land & Inv. Co., lnc. v. Be(/ingham, 31 Wash.App. 742, 644 P2d 740 (1982). The Ciry's actions here fully satisfy the criteria Cor governmental irrmrurdty set forth in Bender v. Seattle, 99 Wash.2d 582, 664 P2d 492 (1983). (FN8) I61aud use policies were involved. It was acting 138 Wn.App. 9141 under explieii statutory authority, and it carefully balanced the risks and advantages of its actions. The City was required to consider effects of the development outside its rerri[ory and mi6gafe them if poss(ble. Save our Rural Environmend v Snohomish Cy. 99 Waeh.2d 363, 662 P.2d 816 (1983); Cathcart-Maltby Clearvinv Community Council v. Snohomish Cy., 96 Wash.2d 201, 634 P.2d 853 (1981); Save A Valuable Enviranmenr v. Bothell, 89 Wash.2d 862, 576 P.2d 401 Q978). Under the role established by these cases, Port Angeles had only two altema[ives. Il had to find a way m mitigate the effects on the two roads, or it had to deny the Millers' application. It is more sensible [o pemdt e municipality to deal positively with problems like The orders dismissing dre Millers' claims are affirmed. The orders preserving any such claims for trial are reversed. Remanded with directions that the Ciry clarify the conditions consistent with this opinion. PETAIB and HICKS, If., conwr. (FNI.) There were 8 conditions in all. The Millers did not object to the other 7, involving pedestrian walkways, s[oan drains, waste disposal, open space and landscaping. C~ 2004 West, a Thomson business. No claim to original U.S. Govt. works. 691 P.2d 229, 38 Wn.App. 904, Miller v. City ofPort Angeles, (Waeh.App. Div. 2 1984) Page 7 Pertinent parts of [he disputed conditions, La and l.b,provided: "a. Melody Lane shall be improved to e width of 28 fee[ 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 [he south boundary of Highway 101 shall be improved and upgraded, including street alignments at intersections of Third, Fourth and Fiflh Streets, in awordance with specifications of the Deparment 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 Jnly, 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 Deparhnen[ of Transportation, and American Public Works Association specifications and standards. appealable under CR 54(b), which provides: "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 ofjudgment...." Ajudgment of liability is not ordinarily appealable until damages have been awarded. Bowing v. Board of Trustees of Green River Carom. College Dist X, 85 Wash.2d 300, 534 P.2d 1365 (1975). However, i[ is appropriate for us to consider all of [he issues now, rather than hearing the case on a piecemeal basis. See Schijjman v. Hanson Excavating Co., Ina, 82 Waeh.2d 681, 513 P.2d 29 Q973). 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 lns. 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: "ii. The pementege of total cost to be borne by Uplands No. 4 development is $60,424.90. This figure is determined by dividing [he 778 average tripe (ADTs) generated by the development of Uplands No. 4, as described in the EIS, by the total average daily trips (ADTs) after covstmcfion of Uplands No. 4 (4,378 ADTs), as described in the EIS, and multiplying that percentage (18%) by the total cost necessary to wnstmc[ 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 conetmc[ien proposed in Uplands No. 4, Phase II (24 units), the total contribution is $9,999.84." (FN2.) All orders were certified m be final and "The city, town, or county legislative body shall inqurze into the public use and interest proposed to be served by the eatahlishment of the subdivision and dedication. It shall determine if appropriate provisions are made for, but not limited tq the public health, safety, and genera] welfare, far 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 detemrine 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 [he imposition of wndidons on special use perrnits. In that context, [he wnditione ace upheld if they (l) do not offend any provision of the zoning ordinance, (2) do not require illegal wnduct on the i9 2004 W est, a Thomson business. No claim to original U.S. Govt. works. 69l P.2d 229, 38 WaApp. 904, Miller v. Ciry ofPort Angeles, (Wash.App. Div.2 1984) Page 8 part of the permittee, (3) aze in the public interest, (4) aze reasonably calculated m achieve some legitimate objective of the zoning ordinance, and (5) aze na[ unnecessarily burdensome or onerous to the landowner. Gerln v. Tacoma, 12 Waeh.App. at 889, 533 P.2d 416. Those requirements are satisfied here. shall also be placed into the Golf Course Road Arterial Improvement Fund." (FN7.) That agrecmevt is innocuous and can easily be mad as contemplating nothing more than the imunediate 24-10[ development. We pmfer, however, to rest our decision on broader grounds. (FN6.) Paragraphs 4 and 5 of Condition Lb provided: "iv. For dwelling units developed pursuant to later approval, the coat per unit shall be detemdned by adjusting the cost figure m the calculation above. The cost figure increase shell be deterndned by use of the 8ngineering News Rewrd Constmetion Cost Index, using July, 1980, as the base period, and $349,026 as the bnse cost. If the road has already been constmcted, then the acme) cost of conslmction shall be used to determine the per-unit cast. "v. The remaining funds required for improving Golf Course Roed will have to wneiet ofMruricipal Arterial Stteet Funds, mmeys derived from an L.1.D., and other approved sources. These Cunds (FN8.) The coterie suggested by Bender ace: "(1) Does the challenged act ... necessarily involve a basic governmental policy, program, or objective? (2) Is the ... act ... essential [o the realization or accomplishment of that policy, ... as opposed to one which would no[ change the course or direction of the policy, ...? (3) Does the act, ... requae the exercise of basic policy evaluattou, judgment, and expertise of the governmental agency involved ...7 (4) Does the ... agency ... possess the requisite constitutional, statutory, or ]awful 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 W ash.2d at 588-89, 664 P.2d 492. C9 2004 West, a Thomson business. No claim to original U.S. Govt. works.