(concurring) — I agree with the majority that conditioning plat approval on offsite road improvements under these circumstances is unlawful. However, I write separately to articulate why I think that is the correct result.
The majority rests its conclusion on the claim that conditioning plat approval on offsite road improvements is not supported by substantial evidence, a ground recognized for reversal under RCW 36.70C.130(l)(c), the Land Use Petition Act. The trial court articulated the evidentiary deficiency as the failure of the municipality to proffer substantial evidence of an “essential nexus” between the possible impacts which may be caused by the subdivision and the half-street improvements to North Parkway Avenue, as well as the failure to demonstrate a “rough proportionality” between the impacts and the exaction. Majority at 691.1 agree this is the evidentiary deficiency.
However, I think it is also important to note exactly why it is the legal burden of the city to prove this. The Court of Appeals opinion in this proceeding articulated the view that the requirement stems from the Fifth Amendment to the *697United States Constitution as construed in Nollan v. California Coastal Commission, 483 U.S. 825, 834, 107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987) and Dolan v. City of Tigard, 512 U.S. 374, 386, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994).4 Although the majority opinion does not find it necessary to reach the constitutional issue, choosing instead to dispose of the case on narrower state law grounds, I think it might be helpful to more precisely articulate exactly what those narrower state law grounds are.
Specifically, I think RCW 82.02.020 imposes that requirement.
In relevant part this statute provides:
[N]o 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. .. .
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 a direct result of the proposed development or plat.
RCW 82.02.020 (emphasis added).
The threshold question under this statute is therefore whether the required construction of offsite street improvements is a “tax, fee, or charge, either direct or indirect.” We have previously recognized that a tax may be in cash or “in kind.” San Telmo Assocs. v. City of Seattle, 108 Wn.2d 20, 24, 735 P.2d 673 (1987). And of course the prohibition in *698RCW 82.02.020 includes but is broader than taxes because “whether a payment is characterized as a tax or a regulatory fee,” it is prohibited unless specifically excepted. R/L Assocs. v. City of Seattle, 113 Wn.2d 402, 409, 780 P.2d 838 (1989). Considering the somewhat narrower question of whether plat approval conditioned on the payment of fees for road improvements were properly considered taxes, we expressed the view in Hillis Homes, Inc. v. Snohomish County, 97 Wn.2d 804, 808, 650 P.2d 193 (1982) that they were. We there cited with approval the Oregon case of Haugen v. Gleason, 226 Or. 99, 104, 359 P.2d 108 (1961) which characterized a tax as an imposition imposed “to accomplish desired public benefits which cost money.”
With these principles in mind RCW 82.02.020 exempts from its otherwise broad prohibition against “any tax, fee, or charge, either direct or indirect,... on the development, subdivision, classification, or reclassification of land” required payments which are “reasonably necessary as a direct result of the proposed development or plat.” RCW 82.02.020. This is a statutory requirement to establish a nexus between the development and the problem as well as a limitation that the developer’s required contribution to the solution of the problem be proportionate to his contribution to the problem itself.
Of course this deficiency cannot be cured by a local ordinance which imposes a tax, fee, or charge without statutory authorization or otherwise conflicts with the general laws of the state, i.e., RCW 82.02.020.
Therefore even if former Battle Ground Municipal Code 12.16.180 authorized the subject condition it would be invalidly applied to the extent its application violated RCW 82.02.020 or imposed a statutorily unauthorized tax. This ordinance does not require that result, however. Although subsection A of the ordinance purports to require a “half-width road improvement shall be constructed to the applicable standards set out in this chapter to that portion of an access street which abuts the parcel being developed, as a requirement of approval of a final plat or final short plat,” *699subsection C of the same ordinance expressly provides “that the developer may voluntarily agree to mitigate such direct impacts in accordance with the provisions of RCW 82-.02.020.” This seems to be a round-about recognition that such mitigation is not required under the ordinance absent proof that it is necessary to mitigate a “direct impact” of the development. Of course proof that these offsite road improvements are necessary because of the “direct impact” of the plat is simply absent.
For these reasons I concur in the majority’s result.
The Court of Appeals opinion on the constitutional issue has merited scholarly praise from Professor William Stoebuck. See 17 William B. Stoebuck, Washington Practice, Real Estate: Property Law § 5.5, at 25 (Supp. 2001).