Appeal from Superior Court of Snohomish County. Docket No: 88-2-04125-1. Date filed: 12/07/94. Judge signing: Hon. John F. Wilson Judg.
Appellant's Motion for Reconsideration Denied August 4, 1997,
Authored by Walter E. Webster. Concurring: William W. Baker, Susan R. Agid.
The opinion of the court was delivered by: Webster
WEBSTER, J. -- The doctrine of avoidable consequences prevents an injured party from recovering damages it could have avoided through reasonable efforts. Snohomish County denied R Associates's application for preliminary plat approval based on an interpretation of the County's road ordinance that this court found to be arbitrary and capricious. See Cobb v. Snohomish County, 64 Wash. App. 451, 829 P.2d 169 (1991). Because the trial court, on remand for damages, found that a reasonable developer in R/L's position would have paid the County $10,000 under protest to allow its development plans to go forward while it appealed the County's decision, it did not err in determining that R failed to mitigate its damages.
R also argues that the trial court (1) erred in denying R/L's request to withdraw its waiver of its right to a jury trial, (2) abused its discretion in admitting evidence of Mr. Hale's past lawsuits and political affiliations, and (3) abused its discretion in determining the amount of attorney fees due R/L. These are all matters within the trial court's discretion. With the exception of the evidence regarding Mr. Hale's political affiliations, we find no abuse of discretion. While the testimony regarding Hale's political affiliations was irrelevant, its admission was harmless error. We affirm.
R Associates (R/L) *fn1 submitted a preliminary plat application to subdivide real property into eighteen building lots on which it planned to build twelve new homes. Under the then-existing Snohomish County Code (SCC), developers must share in the cost of improving road systems impacted by their proposed development projects. Upon request, developers must prepare a traffic study explaining the effects of the proposed development on the level of traffic service (LOS) of the surrounding road system. Former SCC 26B.53.030(f). The LOS is based on the unused capacity of a particular lane, and ranges from LOS A (little or no traffic delays) to LOS E (very long traffic delays). The developer's level of obligation toward road improvements is based on the LOS. For example, developers who will be served by a road system of LOS C must agree not to protest formation of a road improvement district (RID) and may have to perform frontage road improvements or dedicate an additional right of way. Former SCC 26B.55.030. Developers whose projects will be served by a road system which will be at LOS D after completion of the development must incur obligations to mitigate the direct impact of the development. Former SCC 26B.55.040(1).
R/L's traffic study disclosed potential impacts to an intersection at 234th Street S.W. and State Highway 99. The study concluded that the "traffic movements" (i.e. particular turn lanes, etc.) affected by traffic from the subdivision operated at LOS C, but that other traffic movements at the intersection, which the subdivision's traffic would not impact, operated at LOS D. The County required obligations of developers based on the intersection as a whole, rather than by traffic movement. So, although R/L's subdivision only impacted movements at LOS C, the County asked R to submit mitigation proposals under former SCC 26B.55.040(1), as required for projects at LOS D.
The former SCC provided four options to a developer to mitigate a development's impact on a LOS D road system:
(a) Execution of a valid written voluntary agreement between the county and the developer (and bond if required) by which the developer agrees to pay his proportionate share of the cost of mitigation improvements in accordance with this title;
(b) Formation of a road improvement district (RID) for full improvements, in conformance with RCW 36.88.060, as set forth herein;
(c) Execution of a negotiated voluntary agreement between the county and the developer (and bond if required) by which the developer agrees to fund certain partial or interim improvements which mitigate the direct impact of said development; or
(d) Execution of a voluntary agreement for the payment of a fee to mitigate a direct impact that has been identified as a consequence of the proposed development. Former SCC 26B.55.040(1).
During the relevant time period, the County interpreted options (a) and (b) as requiring full improvements that would improve the entire intersection to LOS B or better. Options (c) and (d) did not carry this same requirement. All options required that the mitigation be "feasible." Former 26B.55.010(4).
R hired an engineering and land use planning firm to help with the development and obtaining of plat approval. The two employees from the firm assisting R were very experienced in traffic impact mitigation agreements; one had been a planner for the County. One of the employees, Mr. Watkins, prepared a mitigation offer to fund the installation of a left-hand turn lane under mitigation option (d) (voluntary agreement to pay a fee to mitigate a specific impact). Watkins had made this same offer regarding the same intersection on behalf of a former client. The County had accepted the offer, but denied that client's overall application for unrelated reasons. Watkins called Ms. Mudgett of the County, who informed him that the offer would be acceptable. Watkins estimated that the construction of the left-turn lane would cost $10,000. Mr. Hale of R took over the negotiations from Watkins and did not send the letter making this offer. He wrote a letter in which he expressed his understanding that the County was "requiring" R to offer to fund or install a left-turn lane. Hale instead offered to pay a proportionate share of "improvements to the intersection" under option (a). Ms. Mudgett prepared a written recommendation to the hearing examiner that he accept R/L's proposal, with the condition that building permits would be subject to construction of the improvements. R revised its offer, however, to agree under option (a) to pay $12.50, its estimated proportionate share of the costs to install a left hand turn lane. Ms. Mudgett withdrew her recommendation that the hearing examiner accept the offer because, under option (a), the improvements must improve the whole intersection to LOS B or better and improvements to the left-hand turn lane alone would not do so. She advised R that an offer to fully fund or construct a left-hand turn lane would be an acceptable offer under options (c) or (d).
The hearing examiner determined that the offer to pay a proportionate share of a left-hand turn lane under option (a) was unacceptable because (1) option (a) required the entire intersection to be improved to at least LOS B, and (2) full improvements to raise the intersection to LOS B were not feasible because that could only be accomplished with a traffic light, which the Department of Transportation did not want at that intersection.
The hearing examiner determined that R must make a new mitigation offer under options (c) or (d), since those options do not require that the entire intersection be raised to LOS B or better. Rather than submitting a revised offer, R appealed to the County Council, which upheld the hearing examiner's decision. R then appealed to the superior court, challenging the constitutionality of SSC 26B. The superior court found the ordinance constitutional, but directed the County to grant the application for preliminary plat approval upon R/L's ...