Appeal from Superior Court of King County. Docket No: 92-2-26603-2. Date filed: February 22, 1995. Judge signing: Hon. Harriett M. Cody.
Authored by Mary K. Becker. Concurring: Walter E. Webster, Susan R. Agid
The opinion of the court was delivered by: Becker
BECKER, J. -- The City of Bothell conditioned approval of a subdivision on the payment of a $400-per-lot fee. Bothell contends its methodology for calculating the fee satisfies the statute that permits a fee "in lieu of a dedication" of land for park purposes. *fn1 Under Trimen Development Co. v. King County, *fn2 a fee in lieu of dedication is only permissible if it is based on the value of land which the developer could be required to dedicate. Because Bothell did not determine in a site-specific manner the value of the land the developer could have been required to dedicate, the fee is invalid and must be refunded.
This action concerns fees imposed on the developer of Shawna Downs, an 80-acre subdivision which now lies in the City of Bothell. In the 1980's, the then-owner of the property submitted a proposal to build 142 homes on clustered lots. Portions of the property which were unsuitable for development would be dedicated to the City as permanent open space. Other portions of the property would be used for horse trails and an equestrian complex.
Bothell's Park Board reviewed the Shawna Downs proposal and found that there were no existing park facilities near the development. The Board recognized that the proposed horse trails would provide recreational benefits appealing to some, but felt that the additional 500 or 600 people in the area would also require a park with play facilities for pre-school children. Bothell's City Council later adopted the Park Board's finding that the proposed horse trails were only a "partial substitute" for neighborhood park space.
Bothell's subdivision code required a developer to dedicate five percent of the total area in the subdivision for park purposes. Other ordinances of the City allowed the developer to pay a fee "in lieu of a dedication of land or to mitigate a direct impact" of the development. *fn3
The developer of Shawna Downs ultimately signed a "Voluntary Park Contribution Agreement", agreeing to pay a fee of $400 per lot for "the acquisition of new park sites, improvements to these sites, or additions or improvements to existing facilities." The City conditioned its approval of the subdivision upon receipt of the fees and also upon construction of the proposed pedestrian and equestrian trails.
Vintage Construction Company acquired the Shawna Downs property in 1989, after the previous owner went bankrupt. Vintage completed the project and paid the promised fees, totaling $56,400, to the City of Bothell. Vintage later brought this action to recover the $56,400 in fees, plus interest, claiming that the City had collected the fees in violation of RCW 82.02.020.
RCW 82.02.020 regulates the imposition of local fees on developers.
The statute, including the 1982 version that applies to this case, identifies two types of development fees that are permissible if the city can show they are reasonably necessary as the direct result of the development. One type is a fee in lieu of a dedication of land that the municipality could otherwise require. The other type is a fee to mitigate a direct impact caused by the development. The statute provides in part:
No county, city, town, or other municipal corporation shall impose any tax, fee, or charge, either direct or indirect, on the . . . development, subdivision, classification, or reclassification of land.
However, this section does not preclude dedications of land or easements pursuant to RCW 58.17.110 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.
This section does not prohibit voluntary agreements with counties, cities, towns, or other municipal corporations that allow a payment in lieu of a dedication of land or to mitigate a direct impact that has been identified as a consequence of a proposed development, subdivision, or plat . . . .
No county, city, town, or other municipal corporation shall require any payment as part of such a voluntary agreement which the county, city, town, or other municipal corporation cannot establish is reasonably necessary as ...