The Benchmark Land Company, Respondent, v. The City of Battle Ground, Petitioner, 146 Wash. 2d 685

Ireland, J. — The City of Battle Ground sought review of the Court of Appeals decision that the City unconstitutionally took property belonging to Benchmark Land Company by requiring Benchmark to make improvements to an existing street bordering its proposed subdivision as a condition to approving its plat application. Finding that the City’s condition for subdivision approval does not satisfy the substantial evidence standard of

chapter 36.70C RCW, we hold that the City’s condition is invalid as applied to Benchmark. Given the holding, it is unnecessary to reach the constitutional issue. FACTS In November 1994, Benchmark Land Company filed a preliminary plat application with the City of Battle Ground for a subdivision known as Melrose Park. Benchmark sought to develop a 20.25-acre site in the city into 56 single-family residential lots. Melrose Park is bordered on the east by North Parkway Avenue and on the south by Onsdorff Boulevard.

Benchmark initially proposed to make improvements to both North Parkway and Onsdorff, and its original plat map included entrances to Melrose Park from both streets. However, before the planning commission considered Benchmark’s application, the city engineer suggested that the outlet to North Parkway be eliminated. Benchmark reconfigured its plat map accordingly, but did not remove the proposed improvements to North Pairkway from the revised map. The planning commission considered the proposed plat of Melrose Park in March and April 1995.

At its April meeting, the commission voted to recommend approval to the city council. When the city council considered the matter on May 15,1995, the council voted to approve the preliminary plat. Neither the planning commission nor the city council entered written findings reflecting its decision. Following the city council’s approval, Benchmark began development activities, including work on the street improvements to North Parkway. However, Benchmark discovered that the improvements would be more costly than anticipated. In August 1995, Benchmark rescinded its offer to make the improvements.

Nonetheless, in January 1996, the city council adopted written findings of fact on its previous decision, approving the Melrose Park subdivision subject to “construction of Parkway Avenue and Onsdorff Boulevard, including half-width improvements as proposed by the applicant [Benchmark].” Clerk’s Papers (CP) at 178. Thus, the City required Benchmark to improve North Parkway, which borders but has no direct access to Melrose Park. The City maintains the improvements are required by ordinance.

At issue is a code provision requiring proposed subdivisions, as a condition of plat approval, to construct half-width road improvements “to that portion of an access street which abuts the parcel being developed.” Former Battle Ground Municipal Code (BGMC) 12.16.180. “Access road” is defined as “a public street providing vehicular access to the boundary of a parcel of real property being proposed for development.” Former BGMC 12.16.020(A). PROCEDURAL HISTORY Benchmark brought an action in superior court under the Land Use Petition Act (LUPA),

chapter 36.70C RCW, challenging the City’s condition of plat approval that required Benchmark to make improvements to North Parkway. The superior court remanded the matter to the City “for consideration of whether the traffic impacts of the proposed preliminary plat of Melrose Park support a requirement of half street improvements to North Parkway Avenue.” CP at 377-78. On remand, both the City and Benchmark conducted traffic studies, which were presented to the planning commission. The results of the traffic studies are summarized below.

The City hired Lancaster Engineering to study traffic impacts of the proposed subdivision. Lancaster’s report noted that North Parkway has one travel lane in each direction “with no curbs, paved shoulders, sidewalks, or bike paths.” CP at 488. The report found that “with the addition of site trips from the Melrose Park Subdivision, there will be adequate capacity at the intersection of Parkway and Onsdorff.” CP at 499.

Lancaster found that the existing street was substandard—“Parkway Avenue does not meet current safety and efficiency standards for width and lane configuration as specified by the Battle Ground Transportation Plan.” Id. Lancaster concluded as follows: “Improving the roadway to meet current standards would mitigate the deficiency that would result from additional vehicular, bicycle, and pedestrian traffic due to the subdivision.” Id. (emphasis added). Benchmark hired The TRANSPO Group, Inc., to study the traffic impacts caused by Melrose Park.

In examining the existing streets in the vicinity of the subdivision, TRANSPO noted that “[t]he 700-foot

section of NE 132nd Avenue [North Parkway] which borders the site is consistent with other sections of NE 132nd Avenue from Main Street to NE 142nd Avenue.” CP at 505. TRANSPO’s analysis determined that the traffic volume increase on North Parkway due to the proposed development would be approximately 1.4 percent. TRANSPO concluded as follows: “An increase of this magnitude would be virtually indistinguishable to the average motorist and has no [e]ffect on overall intersection and roadway level of service.” CP at 511.

TRANSPO also stated that the project would have “little to no impact on safety and operations” on North Parkway. Id. TRANSPO did not find off-site improvements to be necessary as a result of Melrose Park. Nonetheless, the commission determined that the development’s impacts on North Parkway justified requiring Benchmark to make the street improvements. The city council agreed at its February 1997 open meeting, and the council issued the following written decision: 1.

The City of Battle Ground shall not require additional dedication of land from the applicant to widen North Parkway Avenue north of Onsdorff Boulevard.[] 2.

Taking into consideration all of the impacts on North Parkway, the respective conclusions of the two traffic engineers and the facts submitted to the Planning Commission and reflected in the record and in the Findings of Fact of the Planning Commission, and further noted by the members of the City Council, it is reasonable and proportional to require the applicant to make standard half-street improvements to North Parkway Avenue only as it fronts Melrose Park Subdivision, consisting of pavement, curbs, gutter, bike lane, sidewalk, and stormwater drainage facility, together with associated striping and signage.

CP at 582 (emphasis added). Benchmark again pursued judicial review and sought damages under federal and state law. Pursuant to CR 54(b), the court allowed Benchmark to proceed with its damages claims, but entered final judgment on its LUPA claim.

In its order following remand, the court ordered, adjudged, and decreed as follows: [T]hat the City has not brought forth substantial evidence of an “essential nexus” between possible impacts which may be caused by the Melrose Park Subdivision and half-street improvements to North Parkway Avenue; and . .. [T]hat the City has not brought forth substantial evidence of “rough proportionality’ between possible impacts which may be caused by the Melrose Park Subdivision and half-street improvements to North Parkway Avenue; and . . . [T]hat the City’s decision of February 6, 1997 that Benchmark be required to, inter alia, construct half-street improvements to North Parkway Avenue as a condition of approval of the Melrose Park Subdivision is not supported by substantial evidence.

CP at 655-56. The City appealed. The Court of Appeals applied a Nollan/Dolan analysis “where the City requires the developer as a condition of approval to incur substantial costs improving an adjoining street.” Benchmark Land Co. v. City of Battle Ground, 94 Wn. App. 537, 548, 972 P.2d 944 (1999). The court held that the City failed to show “an impact and a solution roughly proportional to the impact.” Id. at 552. Accordingly, the court affirmed the superior court’s ruling that the condition was invalid.

This Court at 138 Wn.2d 1008 (1999) granted the City’s petition for review and remanded to the Court of Appeals for reconsideration in light of City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 119 S. Ct. 1624, 143 L. Ed. 2d 882 (1999). On remand, the Court of Appeals adhered to its original decision, stating as follows: Although Del Monte Dunes defines “exactions” as “decisions conditioning approval of development on the dedication of property,” we emphasize the similarity of exacting land and money.

If the government in Nollan and Dolan had exacted money rather than land and then purchased land to solve the problems, the same questions would arise: was the money exacted for and used to solve a problem, connected to the proposed development? (Nollan.) And was the amount of money exacted roughly proportional to the development’s impact on the problem? (Dolan.) Surely if the issues for an exaction of money are the same as for an exaction of land, the test must be the same: a showing of “nexus” and “proportionality.” Benchmark Land Co. v. City of Battle Ground, 103 Wn.

App. 721, 727, 14 P.3d 172 (2000) (citation omitted). The City filed its second petition for review one day late. This Court granted its motion for extension of time to file the petition and accepted review at 143 Wn.2d 1018 (2001). Amici curiae memoranda in support of the City were submitted by the Association of Washington Cities and the Washington State Association of Municipal Attorneys (jointly) and the Washington Association of Prosecuting Attorneys. Amici curiae memoranda in support of Benchmark were submitted by the Building Industry of Washington and Pacific Legal Foundation.

ANALYSIS Standard of Review Judicial review of land use decisions is governed by the LUPA,

chapter 36.70C RCW. Girton v. City of Seattle, 97 Wn. App. 360, 362, 983 P.2d 1135 (1999). “By petitioning under LUPA, a party seeks judicial review by asking the superior court to exercise appellate jurisdiction.” Sunderland Family Treatment Servs. v. City of Pasco, 107 Wn. 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 Ass’n v. Chelan County, 141 Wn.2d 169, 176, 4 P.3d 123 (2000).

RCW 36.70C.130 Under RCW 36.70C.130, an appellate court may grant relief from a land use decision if the petitioner carries its burden of establishing at least one of the following six standards: (

a) The body or officer that made the land use decision engaged in unlawful procedure or failed to follow a prescribed process, unless the error was harmless; (

b) The land use decision is an erroneous

interpretation of the law, after allowing for such deference as is due the construction of a law by a local jurisdiction with expertise; (

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.130U). The City asserts errors by the Court of Appeals as to subsections (

c) and (f). However, it is a fundamental principle that this Court will not reach a constitutional issue if it can decide a case on other than constitutional grounds. Senear v. Daily Journal-Am., 97 Wn.2d 148, 152, 641 P.2d 1180 (1982). The instant case can be fully resolved under subsection (

c) of the statute. Therefore, we do not reach the constitutional issue under subsection (f). Substantial Evidence Issues raised under subsection (

c) challenge the sufficiency of the evidence. “[Substantial evidence is ‘a sufficient quantity of evidence to persuade a fair-minded person of the truth or correctness of the order.’ ” City of Redmond v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 136 Wn.2d 38, 46, 959 P.2d 1091 (1998) (quoting Callecod v. Wash. State Patrol, 84 Wn. App. 663, 673, 929 P.2d 510 (1997)). “We view inferences in a light most favorable to the party that prevailed in the highest forum exercising fact-finding authority . . . .” Schofield v. Spokane County, 96 Wn. App. 581, 588, 980 P.2d 277 (1999).

In this case, we view the record and inferences in a light most favorable to the City because the City prevailed before the city council. As a condition of development approval, the City required Benchmark to incur the costs of improving streets bordering Melrose Park. The City argues that its requirement is supported by substantial evidence. We disagree. North Parkway did not meet City roadway standards even before the development was proposed. The required expenditure for street improvements was not directly related to the traffic generated by the development. See Miller v. City of Port Angeles, 38 Wn.

App. 904, 910, 691 P.2d 229 (1984). Rather, the required improvements would relieve a preexisting deficiency. In addition, the traffic studies found that the subdivision would have little to no impact on safety and operations on the

section of roadway Benchmark was required to improve. In its traffic report, Lancaster stated that Melrose Park “will probably not result in the generation of any school walking or biking trips on Parkway north of Onsdorff because the schools are located to the south and west of the subdivision.” CP at 498. TRANSPO’s traffic impact analysis notes that “[n]ew developments along NE 132nd Avenue [Parkway Avenue] have not been provided with direct driveway access to the roadway. Thus no improvements have been implemented along this

section of roadway from Main Street to NE 142nd Avenue to accommodate these developments.” CP at 505. “The

section of site frontage along NE 132nd Avenue is not inconsistent with other sections of NE 132nd Avenue or other area roadways.” CP at 511. The increase in traffic volumes on North Parkway due to Melrose Park “are far less than the typical day to day fluctuation of traffic and would be virtually indistinguishable to the average driver in the area.” CP at 507. “There is no information indicating that there are any unusual safety conditions near the proposed project site that would contribute to accident occurrence.” CP at 510.

TRANSPO concluded that the intersection of Onsdorff and Parkway is “operating at acceptable levels of service and will continue to do so with development of the proposed project.” CP at 511.

SUMMARY Based on the record before us, we determine that there is not substantial evidence, as required by RCW 36.70C.130 (l)(c), to support the City’s decision to require Benchmark to make improvements to North Parkway as a condition of development approval. Having found that the issue can be resolved on a nonconstitutional basis, we affirm the Court of Appeals decision on alternate grounds and affirm the superior court’s ruling that the City’s condition is invalid under the statute. Alexander, C.J., and Smith, Madsen, Bridge, Chambers, and Owens, JJ., concur. Johnson, J., concurs in the result. The initial

section of former

chapter 12.16 of the Battle Ground Municipal Code states as follows: “It is the purpose of this

chapter to establish minimum standards for public and private streets hereinafter constructed or improved by another as a condition of city approval of a development or by the city.” Former Battle Ground Municipal Code 12.16.010. Benchmark’s argument that the City required the developer to dedicate land in order to make street improvements is without merit. A 30-foot right-of-way over the half of North Parkway bordering Melrose Park existed before Benchmark applied for plat approval.

Although Benchmark initially proposed to dedicate an additional five feet of right-of-way in order to make the half-width improvements, the city council expressly determined that Benchmark was not required to dedicate any land beyond the preexisting right-of-way to make such improvements. The court analyzed the regulatory takings claim under the “essential nexus” standard announced in Nollan v. California Coastal Commission, 483 U.S. 825, 107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987) and the “rough proportionality” standard set forth in Dolan v. City of Tigard, 512 U.S. 374, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994).