WA State Supreme Court backs land developers against cities

By PAUL QUEARY The Associated Press
7/11/02 4:46 PM

OLYMPIA, WA (AP) -- Property developers who chafed at land set-asides and road improvements required by cities won two cases in the Washington Supreme Court on Thursday, but justices skirted constitutional issues raised in the cases.

Attorneys in both cases had argued that the cities' requirements were unlawful takings of the developers' property, violating a landmark 1994 U.S.  Supreme Court ruling in an Oregon case.

But the justices relied on state law in both cases.

"The court kind of sidestepped the constitutional issues and decided both cases on statutory grounds," said Russ Brooks, an attorney with the conservative Pacific Legal Foundation, which argues on behalf of private property owners.  "We're pleased that they settled those issues in our favor, but it would have been nice if they had settled the constitutional issues as well."

In the first case, the court ruled that the city of Camas erred in 1995 when it required the developers of a proposed subdivision called Dove Hill to set aside 30 percent of the property for open space.  The court ruled that the requirement violated a law that generally forbids cities from imposing any "tax, fee, or charge" on land development unless its necessary as a direct result of the development.

"We conclude that the open space set-aside condition is an in-kind indirect 'tax, fee, or charge' on new development," Justice Barbara Madsen wrote in the 6-2 decision.

Dale Kamerrer, who represented the city, said the court's decision is much better than the Court of Appeals' ruling that the open-space requirement was an unconstitutional taking.  However, he said the ruling sets up a conflict between the law Madsen cited and another law encouraging open spaces.

In the Camas case, the open space would have remained private property.  The city argued that distinguished it from the Oregon case -- Dolan v.  City of Tigard -- in which a city demanded that land be dedicated for a public greenbelt along a creek as a condition for allowing a business to expand.

"While this is a ruling against the city on a small issue," Kamerrer said, "it doesn't create wide-ranging precedent that is difficult for municipalities to comply with in imposing conditions for development."

For example, Kamerrer said, the city might present stronger evidence in favor of the open space requirement and prevail.

Leanne Bremer, who represented the Philippines-based developer, Isla Verde International Holdings, said she was disappointed the court hadn't followed the lower court's example and applied the Dolan standard.

"It's tantamount to a public dedication," Bremer said of the open space requirement.
"That's the issue that both sides wanted them to decide."

Dove Hill has never been built, at least partly because the city also required a second road into the development to allow more access for fire trucks and other emergency vehicles.  The court upheld that requirement in Thursday's ruling.

Bremer and Kamerrer both said the development will now go back before the Camas City Council.

In the other case, the court ruled that the city of Battle Ground could not force a developer to make road improvements to a road that adjoins the subdivision but isn't linked to it by an entrance.

In its original plan for its Melrose Park development, Benchmark Land Co.  planned entrances on two roads, which would have been widened to handle the extra traffic.

In a revision of the plan, one entrance was dropped.  Later, the developer balked at the city's insistence that it complete the widening work on the road without an entrance, arguing that the subdivision's residents wouldn't contribute significantly to traffic there.

Again, the court refused to follow the Court of Appeals' constitutional reasoning that the widening was an unconstitutional taking.  Instead, justices ruled based on a state law that allows courts to overturn land-used decisions that aren't supported by substantial evidence.

"The required expenditure for street improvements was not directly related to the traffic generated by the development," Justice Faith Ireland wrote in the unanimous decision.

The Melrose Park development was completed despite the dispute over the roadway.  Bremer, who also represented Benchmark, said the city was trying to offload some fundamentally unrelated road improvements on the developer.

Roger Wynne, who argued as a friend of the court for the Association of Washington Cities, said the city dug in its heels on what it saw as a done deal, but ultimately couldn't defend the road work to the justices.

"It really just underscores the importance of showing your work when you hand in your homework," said Wynne, an assistant city attorney in Seattle.  "Here they found that homework lacking."

The cases are: Isla Verde International Holdings, Inc., et al.  v.  City of Camas, No.
69475-3, and The Benchmark Land Company v.  City of Battle Ground, No.  70659-0.

------ On the Net:

Supreme Court: http://www.courts.wa.gov
Pacific Legal Foundation: http://www.pacificlegal.org/
Association of Washington Cities: http://www.awcnet.org