Washington (State) Court Of Appeals: One-Size-Fits-All Open Space Regulation Is Not Roughly Proportional

In Citizens' Alliance for Property Rights v. Sims, No. 59416-8-1 (Wash. Ct. App. July 7, 2008), the Court of Appeals of the State of Washington held that a county ordinance which prohibited  a landowner from clearing 50% to 65% of his property violated a state statute prohibiting counties from imposing a "tax, fee, or charge" on land development.

The court relied on Isla Verde Int. Holdings, Inc. v. City of Camas, 49 P.3d 867 (Wa. 2002) to find that King County Ordinance 15053 §14 violates the prohibition on taxing land development in Rev. Code of Washington 82.02.020.  That statute provides, in part:

Except as provided in RCW 82.02.050 through 82.02.090, no county, city, town, or other municipal corporation shall impose any tax, fee, or charge, either direct or indirect, on the construction or reconstruction of residential buildings, commercial buildings, industrial buildings, or on any other building or building space or appurtenance thereto, or on the development, subdivision, classification, or reclassification of land.  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.

In Isla Verde, the Washington Supreme Court held that imposing an open space set aside as a condition of subdivision was an "indirect" in kind tax, fee, or charge, and the Citizens' Alliance court held that the restrictions imposed by the King County ordinance were "not materially distinguishable."  Slip op. at 10.  The court rejected the county's argument that the limitations on clearing property do not raise revenue because "Washington case law is clear that RCW 82.02.020 applies to ordinances that may require developers to set aside land as a condition of development."  Slip op. at 13. 

In the most interesting portion of the opinion, the court held the county's clearing requirement did not fall within any of the statutory exceptions, in particular the "rough proportionality" requirement.  "There is no persuasive claim that the variation in clearing restrictions is proportionally related to proposed development, a necessary element to satisfy the statutory exception."  Slip op. at 18.  The court held that a one-size-fits-all approach did not meet the requirement that the exaction be tailored to the supposed impact:

KCC 16.82.150 imposes a uniform requirement for cleared area on each lot, unrelated to any evaluation of the demonstrated impact of proposed development. While the ordinance before us prescribes clearing limits in proportion to the size of the lot, it fails to relate the clearing limit to the nature and extent of the proposed development on the lot. Although KCC 16.82.150 contains other criteria, none address the requirement that the clearing limits be impact specific, as the statute requires. Thus, the necessary proportionality that is required to fulfill the statutory exception is not satisfied.

Slip op. at 20. The statutory requirements of nexus and rough proportionality mirror the Fifth Amendment's, as recognized by the Nollan and Dolan cases, so although this case did not deal with constitutional issues, the court's analysis should be very instructive when dealing with blanket exactions that make no attempt at an individualized determination.

Download the slip opinion here.