Douglass Properties Ii, Llc v. City Of Olympia ( 2021 )

Filed
Washington State
Court of Appeals
Division Two
February 2, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
DOUGLASS PROPERTIES II, LLC, No. 53558-1-II
Appellant,
v.
CITY OF OLYMPIA, PUBLISHED OPINION
Respondent.
WORSWICK, J. — Douglass Properties II LLC (Douglass) appeals a superior court order
affirming the Olympia Hearing Examiner’s decision regarding transportation impact fees (traffic
impact fees). That order upheld the imposition of $167,580 in traffic impact fees as a condition
of the City of Olympia’s issuance of a building permit to construct a storage facility. Douglass
argues that the hearing examiner’s decision was erroneous because it (1) made findings of fact
and conclusions of law without placing the burden of proof on the City to establish that the
traffic impact fees were roughly proportionate to the impacts of Douglass’s project as required
by Nollan v. California Coastal Commission, 483 U.S. 825, 107 S. Ct. 3141, 97 L. Ed .2d 677
(1987), and Dolan v. City of Tigard, 512 U.S. 374, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994)
(Nollan/Dolan test),1 and (2) failed to conclude that the City’s traffic impact fees were excessive
and not roughly proportionate. We affirm.
1
Together these cases require a nexus and rough proportionality between a government’s
demand and the effects of development when the government demands that a landowner
relinquish a portion of his property as a condition of a land use permit.
No. 53558-1-II
FACTS
I. BACKGROUND
A. Permit Application
In 2016 and 2017, Douglass applied for building permits for a mini storage warehouse
facility in Olympia. In accordance with the Transportation Impact Fee Rate Schedule in
Olympia Municipal Code (OMC) 15.16.040, the City calculated the traffic impact fees and
conditioned Douglass’s permits based on those calculated fees. Douglass’s proposal included 7
buildings. Building 1 and Buildings 3 through 7 were calculated at a rate of $1.29 per square
foot of gross floor area according to the 2016 OMC, but Building 2 was calculated at $1.33 per
square foot of gross floor area according to the 2017 OMC.2 Although OMC 15.04.050(C) and
(E) contained provisions to allow Douglass to request an independent fee analysis, Douglass
declined to request an analysis. Douglass also declined to prepare its own independent fee
calculation, as provided for under OMC 15.04.050(D). In 2018, Douglass paid all the impact
fees. As to Building 2 only, Douglass paid these fees under protest and appealed the impact fee
determination.
B. City of Olympia Hearing Examiner
In 2018, the City’s hearing examiner held a hearing to consider Douglass’s appeal. At
the onset of the hearing, the hearing examiner stated that Douglass had the burden of proof to
2
Building 2 contained 126,000 square feet, which resulted in a traffic impact fee of $167,580
when multiplying 126,000 times $1.33. The $1.33 per square foot multiplier is based on the
following calculation: peak trips per thousand square feet (.26) times number of trips that are
new trips (1), times standard length compared to average trip length of 3.0 miles (“trip
adjustment variable”) (1.7), times cost of each new trip ($2,999).
2
No. 53558-1-II
show that the City’s traffic impact fee for Building 2 was “clearly erroneous.” Clerk’s Papers
(CP) at 58. The parties then presented evidence in the form of exhibits and witness testimony.
The OMC contains a formula to calculate a traffic impact fee, which the City employed
to calculate the impact fees here. OMC 15.16.040 Schedule D, “Transportation Impact Fees.”
This formula includes a number of variables.
Douglass challenged three of these variables: the number of trips per peak hour, the
percentage of new trips, and the trip adjustment variable. Douglass argued the traffic impact fee
should have been modified consistent with its own calculations, notwithstanding that Douglass
neither requested an independent impact fee calculation from the City, nor submitted his own
independent impact fee calculation for consideration prior to issuance of the permit.3 Douglass
urged the hearing examiner to either find the City’s impact fee to be clearly erroneous or, in the
alternative, to undertake an independent fee calculation and determine a new fee that was
consistent with Douglass’s alternative calculation. Douglass contended that a failure to adjust
the City’s impact fee would be a violation of due process under Nollan and Dolan. 4
3
Douglass argued that peak trips per thousand square feet should be .17, number of trips that are
new trips should be .75, and the standard length compared to average trip length (trip adjustment
variable) should be 1, resulting in an impact fee of $48,178.93. Although the City’s ordinances
presume that its own impact fee schedule calculations are valid under OMC 15.04.050(F), under
OMC 15.04.050(C) a permit applicant can submit his own independent fee calculation prior to
issuance of any building permit and the City may consider such independent fee calculation.
4
Nollan v. California Coastal Comm’n, 483 U.S. 825, 107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987);
Dolan v. City of Tigard, 512 U.S. 374, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994). The Nollan
and Dolan cases are landmark Fifth Amendment takings cases. “[Nollan and Dolan] held that
the government may not condition the approval of a land-use permit on the owner’s
relinquishment of a portion of his property unless there is a nexus and rough proportionality
between the government’s demand and the effects of the proposed land use.” Koontz v. St. Johns
River Water Mgmt. Dist., 570 U.S. 595, 595, 133 S. Ct. 2586, 186 L. Ed. 2d 697 (2013).
3
No. 53558-1-II
The City presented evidence from its own expert, Don Samdahl, regarding the
methodology used by the City to calculate traffic impact fees. The City also showed that it
formally adopted a transportation study prepared for the city, which included the formula for
calculating traffic impact fees. The transportation study formula for calculating such fees
included the factors required by RCW 82.02.060, including:
 The cost of public facilities necessitated by new development;
 Adjustments to the cost for past or future payments by developers (including user fees, debt
service payments, taxes or other fees);
 The availability of other funding sources;
 The costs of existing facilities improvements;
 The methods by which existing facilities were financed;
 Credit for the value of any dedication of land to facilities identified in the capital facilities
plan and required as a condition of approval;
 Adjustments for unusual circumstances; and
 Consideration of studies submitted by the developer.
CP at 293.
Following the hearing, the hearing examiner denied Douglass’s appeal, deciding that the
impact fee was correctly calculated in accordance with the ordinance. The hearing examiner
concluded that it did not have the authority to overrule City of Olympia v. Drebick,5 which the
hearing examiner concluded was the controlling authority. The hearing examiner reaffirmed that
Douglass had the burden of proof at the hearing, and that the three challenged variables were not
clearly erroneous. The hearing examiner further concluded that the City’s actions were not
clearly erroneous when the City did not extemporaneously conduct an independent fee
5
156 Wn.2d 289, 293, 126 P.3d 802 (2006). Our Supreme Court in Drebick held that impact
fees under RCW 82.02 do not require an individualized assessment of a development’s direct
impact.
4
No. 53558-1-II
assessment, and that a hearing examiner had no authority to conduct or consider an independent
fee assessment for the first time on appeal.
C. Judicial Review
Douglass filed an appeal to the superior court for judicial review under the Land Use
Petition Act, RCW 36.70C (LUPA). The superior court affirmed the decision of the hearing
examiner. Douglass now appeals to this court.
ANALYSIS
Douglass argues that the City’s traffic impact fee is subject to Fifth Amendment scrutiny
because it amounts to a regulatory taking of his property. Douglass argues that because the fee is
a regulatory taking, the City had the burden to prove to the hearing examiner that the fees had a
nexus and were roughly proportional, as required by Nollan and Dolan. We hold that the
Nollan/Dolan test does not apply to the traffic impact fees, because such fees are legislatively
prescribed generally applicable fees outside the scope of Koontz v. St. Johns River Water
Management District, 570 U.S. 595, 595, 133 S. Ct. 2586, 186 L. Ed. 2d 697 (2013), and that
Drebick still controls. Thus, we hold that the hearing examiner did not err when it ruled that
Douglass had the burden of proof at the hearing and that Douglass failed to meet that burden.
We further hold that the hearing examiner’s conclusions were not erroneous.
I. LEGAL PRINCIPLES AND STANDARDS OF REVIEW
A. Standards of Review
We review a LUPA action under chapter 36.70C RCW. Ellensburg Cement Products,
Inc. v. Kittitas County, 179 Wn.2d 737, 742, 317 P.3d 1037 (2014). We stand in the same
position as the superior court, and review the record that was before the hearing examiner.
5
No. 53558-1-II
Ellensburg Cement Products, 179 Wn.2d at 742. The party seeking relief has the burden of
establishing any of the following standards:
(a) The body or officer that made the land use decision engaged in unlawful
procedure or failed to follow a prescribed process, unless the error was harmless;
(b) The land use decision is an erroneous interpretation of the law, after
allowing for such deference as is due the construction of a law by a local jurisdiction
with expertise;
(c) The land use decision is not supported by evidence that is substantial
when viewed in light of the whole record before the court;
(d) The land use decision is a clearly erroneous application of the law to the
facts;
(e) The land use decision is outside the authority or jurisdiction of the body
or officer making the decision; or
(f) The land use decision violates the constitutional rights of the party
seeking relief.
RCW 36.70C.130(1).
Standards (a), (b), (c), (d), and (f) are at issue in this case. Standards (a), (b), (e), and (f)
contain questions of law that we review de novo. Phoenix Dev., Inc. v. City of Woodinville, 171
Wn.2d 820, 828-829, 256 P.3d 1150 (2011).
For standard (c), we review all facts and inferences in a light most favorable to the party
that prevailed in the highest fact-finding forum to decide challenges to the sufficiency of the
evidence, and then determine whether sufficient evidence exists in the record to persuade a
reasonable person of the truth asserted by the alleged facts. Phoenix, 171 Wn.2d at 828-829.
For standard (d), only when we are left with “the definite and firm conviction that a
mistake has been committed,” do we decide an application of law to the facts is clearly
erroneous. Phoenix, 171 Wn.2d at 828-829.
We adhere to “the fundamental principle that if a case can be decided on
nonconstitutional grounds, an appellate court should refrain from deciding constitutional issues.”
6
No. 53558-1-II
Isla Verde Int’l Holdings, Inc. v. City of Camas, 146 Wn.2d 740, 752, 49 P.3d 867 (2002),
abrogated on other grounds by Yim v. City of Seattle, 194 Wn.2d 682, 451 P.3d 694 (2019).
B. State Law
RCW 82.02.050 authorizes the imposition of impact fees. The statute limits how
municipalities can implement impact fees, stating that such fees
(a) Shall only be imposed for system improvements that are reasonably
related to the new development;
(b) Shall not exceed a proportionate share of the costs of system
improvements that are reasonably related to the new development; and
(c) Shall be used for system improvements that will reasonably benefit the
new development.
RCW 82.02.050(4).
An “impact fee” is defined as
a payment of money imposed upon development as a condition of development
approval to pay for public facilities needed to serve new growth and development,
and that is reasonably related to the new development that creates additional
demand and need for public facilities, that is a proportionate share of the cost of the
public facilities, and that is used for facilities that reasonably benefit the new
development. “Impact fee” does not include a reasonable permit or application fee.
RCW 82.02.090(3).
“‘Proportionate share’ means that portion of the cost of public facility improvements that
are reasonably related to the service demands and needs of new development.” RCW
82.02.090(6).
Local ordinances imposing impact fees under RCW 82.02.050 must include a schedule of
impact fees for each type of development activity subject to the fees. RCW 82.02.060(1). The
schedule must specify “the amount of the impact fee to be imposed for each type of system
improvement” and must be “based upon a formula or other method of calculating such impact
7
No. 53558-1-II
fees.” RCW 82.02.060(1). The formula or method of determining “proportionate share” in a
schedule of impact fees must, at a minimum, include:
(a) The cost of public facilities necessitated by new development;
(b) An adjustment to the cost of the public facilities for past or future
payments made or reasonably anticipated to be made by new development to pay
for particular system improvements in the form of user fees, debt service payments,
taxes, or other payments earmarked for or proratable to the particular system
improvement;
(c) The availability of other means of funding public facility improvements;
(d) The cost of existing public facilities improvements; and
(e) The methods by which public facilities improvements were financed.
RCW 82.02.060(1).
In addition to an impact fee schedule, the local ordinance must “include a provision for
calculating the amount of the fee to be imposed on a particular development that permits
consideration of studies and data submitted by the developer to adjust the amount of the fee.”
RCW 82.02.060(6).
Local governments are required to provide an administrative appeals process, which may
follow either the underlying development approval process or a process separately established by
the local government. RCW 82.02.070(5). Impact fees in the administrative appeal process can
be modified under “principles of fairness.” RCW 82.02.070(5).
Title 82 RCW contemplates other types of impact fees that may be authorized under
alternative statutes which are necessary as a direct result of the proposed development (in
contrast to the traffic impact fees in the instant case) and carves out an exception to the
preemption section under RCW 82.02.020:
[T]his section does not preclude dedications of land or easements within the
proposed development or plat which the county, city, town, or other municipal
corporation can demonstrate are reasonably necessary as a direct result of the
8
No. 53558-1-II
proposed development or plat to which the dedication of land or easement is to
apply.
This section does not prohibit voluntary agreements with counties, cities,
towns, or other municipal corporations that allow a payment in lieu of a dedication
of land or to mitigate a direct impact that has been identified as a consequence of a
proposed development, subdivision, or plat.
RCW 82.02.020 (emphasis added).
C. Local Ordinance
The City enacted OMC 15.04.040 to collect transportation impact fees under RCW
82.02.050. Schedule D, in OMC 15.16.040 includes the transportation impact fees at issue here.
The fees in Schedule D, are generated by the transportation study formula, and the fees are
outlined in the “2009 Transportation Impact Fee Collection Rate Document.” OMC
15.08.050(A). Schedule D is reviewed annually to consider adjustments “to account for system
improvement cost increases due to increased costs of labor, construction materials and real
property.” OMC 15.08.050(B).
II. LEGISLATIVELY IMPOSED GENERALLY APPLICABLE FEE
Douglass argues that the City’s fee scheme is unlawful because it fails to comply with the
proportionality requirements under state and federal law, specifically RCW 82.02.050(4) and
Nollan/Dolan scrutiny by extension from Koontz v. St. Johns River Water Management District,
570 U.S. 595. Douglass also argues that Drebick is no longer controlling law. We disagree.
A. Discussion
Douglass makes several arguments based on an underlying premise that the Nollan/Dolan
test applies to the traffic impact fees assessed here. Specifically, Douglass argues that after
Koontz, Drebick no longer controls. We disagree.
9
No. 53558-1-II
The takings clause of the Fifth Amendment provides, “[N]or shall private property be
taken for public use, without just compensation.” Similarly, article I, section 16 provides, “No
private property shall be taken or damaged for public or private use without just compensation
having been first made.” WASH. CONST. art. I, § 16.
In the cases of Nollan and Dolan, the Supreme Court relied on the Fifth Amendment to
hold that the government cannot condition approval of a land use permit on the conveyance of
real property unless there is a nexus and rough proportionality between the government’s
demand and the effects of the proposed land use. Nollan, 483 U.S. at 837; Dolan, 512 U.S. at
386. The case of Koontz v. St. Johns River Water Management District., extended the
Nollan/Dolan requirement to certain “monetary exactions.” 570 U.S. at 612. The nexus test
requires conditions of development to be necessary to mitigate a specific adverse impact of a
proposal. Nollan, 483 U.S. at 837. The rough proportionality test limits the extent of required
mitigation measures to those that are roughly proportional to the impact they are designed to
mitigate. Dolan, 512 U.S. at 391. Olympic Stewardship Found. v. State Env’t & Land Use
Hearings Off. through W. Wash. Growth Mgmt. Hearings Bd., 199 Wn. App. 668, 747, 399 P.3d
562 (2017). Taxes and user fees are not “takings” subject to Fifth Amendment scrutiny. Koontz,
570 U.S. at 615 (quoting Brown v. Legal Found. of Washington, 538 U.S. 216, 243, n. 2, 123 S.
Ct. 1406, 155 L. Ed. 2d 376 (2003)) (Scalia, J., dissenting).
As stated above, Koontz extended the Nollan/Dolan rule to certain “monetary exactions.”
In Koontz, the government refused to issue water permits to a land owner unless the landowner
either deeded to the government an easement over land not being developed, or paid for
improvements to noncontiguous government owned land. Koontz, 570 U.S. at 601-602. This fee
10
No. 53558-1-II
scheme was “imposed ad hoc,” and was “not . . . generally applicable” to permit applicants.
Koontz, 570 U.S. at 628 (Kagan, J., dissenting). In applying the Nollan/Dolan test to this
scheme, the court stressed that it was not expanding Nollan and Dolan much beyond its narrow
confines, stating:
[Koontz’s] claim rests on the . . . limited proposition that when the government
commands the relinquishment of funds linked to a specific, identifiable property
interest such as a bank account or parcel of real property, a “per se [takings]
approach” is the proper mode of analysis under the Court’s precedent.
Koontz, 570 U.S. at 614 (emphasis added) (quoting Brown, 538 U.S. at 235).
Prior to Koontz, courts across the country generally held that the Nollan/Dolan test was
limited to adjudicative and ad hoc exactions, and did not apply to more broadly applicable
legislative exactions.6 Washington weighed in on this issue in the case of City of Olympia v.
Drebick, 156 Wn.2d 289.
In Drebick, the hearing examiner ruled that a city’s impact fee did not comply with RCW
82.02.050 because it failed to require an individualized assessment of a new development’s
direct impact on each improvement planned in a service area. 156 Wn.2d at 309. Our Supreme
Court reversed. 156 Wn.2d at 309. The appellant in Drebick sought an independent fee
calculation adjustment before it challenged whether the City’s ordinance complied with state
law. 156 Wn.2d at 293. The Court explained that because GMA impact fees were legislatively
prescribed development fees, Nollan/Dolan was not applicable, noting the distinctions from
6
Michael Castle Miller, The New Per Se Takings Rule: Koontz’s Implicit Revolution of the
Regulatory State, 63 AM. U.L. REV. 919, 947 (2014).
11
No. 53558-1-II
other jurisdictions where Fifth Amendment scrutiny did apply but only to fees that were direct
mitigation and in lieu of possessory exactions. Drebick, 156 Wn.2d. at 302.
Subsequent to Koontz, a number of courts have considered the issue and continue to hold
that the Nollan/Dolan test does not apply to generally applicable legislative decisions.7
Although the decision in Drebick was based on statutory construction, the distinction
observed between “direct mitigation fees” and those “legislative prescribed development fees”
from the GMA is instructive. 156 Wn.2d at 303. The same important factual distinction that our
Supreme Court explained in Drebick exists here between the traffic impact fees in the instant
case and those found in Koontz. The fees in Koontz were “not . . . generally applicable” to all
permit applicants. 570 U.S. at 628 (Kagan, J., dissenting). Additionally, the fee imposed in
Koontz was in lieu of a conveyance of a conservation easement. 570 U.S. at 617. Although
Koontz expanded the scope of takings that require Nollan/Dolan scrutiny to include “monetary
exactions,” it did not expand that scope to include legislatively prescribed development fees like
those at issue here. Moreover, the language in Koontz clearly intended to limit its application, by
explaining that the funds there were linked to a specific, identifiable property interest. We
therefore conclude that Koontz does not invalidate Drebick’s holding with respect to legislatively
imposed generally applicable fees because these fees are outside the scope of Koontz.
Douglass also relies on Honesty in Environmental Analysis and Legislation (HEAL) v.
Central Puget Sound Growth Management Hearings Board, 96 Wn. App. 522, 533, 979, P.2d
7
See, e.g., Am. Furniture Warehouse Co. v. Town of Gilbert, 245 Ariz. 156, 163, 425 P.3d 1099(Ariz. Ct. App. 2018); Better Hous. for Long Beach v. Newsom, 452 F. Supp. 3d 921, 932 (C.D.
Cal. 2020); Dabbs v. Anne Arundel Cnty., 458 Md. 331, 357, 182 A.3d 798 (2018).
12
No. 53558-1-II
864 (1999), a pre-Koontz case, to argue that Nollan/Dolan scrutiny applies to the City’s traffic
impact fees. In HEAL, Division One of this court explained that Nollan/Dolan scrutiny is
required under the Growth Management Act, 36.70A RCW, for conditions other than an outright
dedication of land, but that case did not specifically address impact fees. HEAL, 96 Wn. App. at
534. HEAL only concerned itself with the denial of a project based on less than “only the best
available science [that] could provide its policy-makers with facts supporting those policies and
regulations which, when applied to an application, will assure that the nexus and rough
proportionality tests are met.” 96 Wn. App. at 534. HEAL’s holding is immaterial to the instant
case involving monetary exactions imposed based on a statutory formula.
We hold that Drebick is still good law, and that Nollan/Dolan scrutiny does not apply to
the legislatively prescribed development traffic impact fees at issue in this case subsequent to
Koontz. Thus, the hearing examiner did not err by concluding that the Nollan/Dolan rule did not
apply.
III. HEARING EXAMINER RULINGS
A. Imposing Burden of Proof on Appellant Not Clearly Erroneous
Douglass argues that the hearing examiner’s ruling was clearly erroneous when it ruled
that Douglass had the burden of proof under the OMC. Douglass contends that the City, as the
governmental agency attempting to impose a fee, had a burden to show that the traffic impact
fees met the Nollan/Dolan test. The City argues that Douglass had the burden of proof as
prescribed by the City ordinance which is based on LUPA. Because the Nollan/Dolan test does
not apply to legislatively prescribed impact fees, and because this is a LUPA appeal where the
13
No. 53558-1-II
City’s ordinance was explicit in giving the challenger the burden of proof, we agree with the
City.
Douglass relies on Isla Verde International Holdings v. City of Camas, 146 Wn.2d at 763
n.16, to argue that the City bears the burden of proof to show adequate proportionality under
RCW 82.02.050(4). But Isla Verde International Holdings was a case concerning RCW
82.02.020, not RCW 82.02.050. 146 Wn.2d at 753-54; see Drebick, 156 Wn.2d at 302(distinguishing direct mitigation fees like those referred to in RCW 82.02.020 from legislatively
prescribed development fees). The court in Isla Verde International Holdings construed the
burden of proof from the plain language of that wholly separate statute, which contains language
that does not appear in the provision at issue here. 146 Wn.2d at 761.8 Moreover, the
development fees in Isla Verde International Holdings were not legislatively imposed generally
applicable fees like those imposed here. The fees in Isla Verde International Holdings were
statutory exceptions to the preclusive effect of RCW 82.02.020. 46 Wn.2d at 755. “[T]he
burden of establishing a statutory exception is on the party claiming the exception.” Home
8
RCW 82.02.020 provides:
However, this section does not preclude dedications of land or easements within
the proposed development or plat which the county, city, town, or other municipal
corporation can demonstrate are reasonably necessary as a direct result of the
proposed development or plat to which the dedication of land or easement is to
apply.
....
(3) . . . .
No county, city, town, or other municipal corporation shall require any
payment as part of such a voluntary agreement which the county, city, town, or
other municipal corporation cannot establish is reasonably necessary as a direct
result of the proposed development or plat.
(Emphasis added).
14
No. 53558-1-II
Builders Ass’n of Kitsap Cnty. v. City of Bainbridge Island, 137 Wn. App. 338, 347, 153 P.3d
231 (2007) (citing Isla Verde, 146 Wn.2d at 759).
As discussed above, Nollan/Dolan scrutiny does not apply to legislatively derived traffic
impact fees such as the traffic impact fee in this case, so Douglass’s argument fails. Because the
fees at issue here are not subject to the Nollan/Dolan test, the City did not have a burden to show
a nexus or proportionality. Instead, the hearing examiner correctly observed the OMC which
states, “The examiner shall only grant relief requested by an appellant upon finding that the
appellant has established that . . . ,” and then goes on to describe the means in which an appellant
can prevail. OMC 18.75.040(F). The language clearly requires the appellant has to “establish”
the factual basis for the findings of fact and conclusions of law, thus bearing the burden of proof.
OMC 18.75.040(F).
We hold that the hearing examiner’s ruling that Douglass had the burden of proof under
the OMC was not clearly erroneous.
B. Validity of Fee Not Clearly Erroneous
Douglass argues that the hearing examiner’s ruling regarding the traffic impact fee was
clearly erroneous because the fees were excessive and not roughly proportionate. Specifically,
Douglass argues that three of the variables the City used in its calculation caused the fees to be
excessive and not proportional. The City contends that Douglass is attempting to “rewrite the
City’s ordinance without complying with the procedural requirements that allow consideration of
alternative fee calculations.” Br. of Resp’t at 33. The City argues that its fees are
“presumptively valid enactments of the City’s legislative body,” and that they are rationally
based on the same methodology upheld in Drebick. Br. of Resp’t at 40. We hold that the
15
No. 53558-1-II
hearing examiner’s decision to uphold the fee calculation based on the requisite City ordinance
was not clearly erroneous.
The hearing examiner rejected all of Douglass’s challenges to the City’s fee calculation
that were based on its own independent information unique to its own project. The hearing
examiner found that each of the three challenged variables was supported by the widely accepted
trip generation manual, which was the same manual from Drebick, according to Samdahl’s
testimony at the hearing. The hearing examiner reasoned that each of the City’s decisions to
adhere to Schedule D calculations was not a clearly erroneous application of the law to the facts.
This is the standard of review under OMC 18.75.040(F)(4). OMC 15.04.050 required Douglass
to submit its independent fee calculation before obtaining its permit, but it failed to do so. If an
independent fee calculation under OMC 15.04.050 is not submitted timely to the City, the City is
allowed to collect impact fees based on the schedules in Chapter 15.16 OMC. We hold that the
hearing examiner’s decision to uphold the City’s fee calculation based on the requisite City
ordinance was not clearly erroneous.
ATTORNEY FEES
The City argues that it is entitled to an award of reasonable attorney fees and costs.
Because the City is the prevailing party, we agree.
In a LUPA appeal, the prevailing party on appeal is entitled to an award of its reasonable
attorney fees and costs. RCW 4.84.370(1). Under the LUPA statute, the prevailing party is the
party that prevailed or has substantially prevailed before the county, city, or town, and has
prevailed or substantially prevailed before this court or the Supreme Court, and has prevailed or
substantially prevailed in all subsequent judicial proceedings. RCW 4.84.370(1)(a), (b). The
16
No. 53558-1-II
City prevailed before the hearing examiner, at the superior court, and on this appeal, and is thus
entitled to an award of its attorney fees under RCW 4.84.370 and RAP 18.1
CONCLUSION
In conclusion, we hold that the Nollan/Dolan test does not apply to the traffic impact fees
in this case, because such fees are legislatively prescribed generally applicable fees outside the
scope of Koontz, and that Drebick still controls. Thus, we hold that the hearing examiner did not
err when it ruled that Douglass had the burden of proof at the hearing and that Douglass failed to
meet that burden. We further hold that the hearing examiner’s conclusions were not erroneous.
Finally, we hold that the City is entitled to its reasonable attorney fees. We affirm.
______________________________
Worswick, P.J.
We concur:
_______________________________
Glasgow, J.
_______________________________
Cruser, J.
17