Isla Verde International Holdings, Inc. v. City of Camas

Johnson, J.

(concurring) — I agree with the majority’s conclusion that the City could require Isla Verde to provide a secondary access road as a condition of development without violating substantive due process or perpetrating a constitutional taking. This conclusion’s practical effect is to return the proposed Dove Hill development to the planning stage and to render gratuitous further discussion of other conditions to development.

The real issue presented by this case, and the problem the majority concedes hampers its analysis of the open space condition, is an inadequate record. Majority at 762-63. The majority chooses to analyze the open space condition under RCW 82.02.020. However, I am not convinced RCW 82.02.020 is the proper statutory framework under which to proceed since the record consists primarily of a development proposal rejected for lack of open space, the public testimony surrounding that proposal, and the ordinance directing the City’s preservation of open space. Former Camas Mun. Code 18.62.020(A) (1991) (repealed Mar. 2002).

The majority appears most concerned by the city ordinance authorizing payment of a fee in lieu of an open space requirement. Majority at 758-59, 760. I agree with the majority that, if such a fee had been assessed, our cases would strictly apply the requirements of RCW 82.02.020. Our precedents have recognized that the government can*772not use its otherwise valid police power regulations as a tool to exact fees from developers and apply them to general revenues. Trimen Dev. Co. v. King County, 124 Wn.2d 261, 270, 877 P.2d 187 (1994). Similarly, if, as the majority suggests, the ordinance’s open space requirements are in addition to those required under RCW 58.17.110, then these additional conditions “require strict compliance.” Id. at 270. However, from the record, I cannot determine that this is what has occurred.19

The record before us regarding the contested open space condition is simply insufficient to determine its appropriateness under RCW 82.02.020. We know only that the City rejected a proposal with 3 percent reserved as open space under a municipal ordinance requiring a 30 percent open space set aside. We do not know the configuration of the open space within the development because a revised proposal was never submitted to the City for approval. Similarly, while we know fees might have been assessed for open space impact or for parks, these fees were never calculated. We cannot determine the amount of the fees, much less their cumulative effect under RCW 82.02.020. Nor can we assess whether they were duplicative, as Isla Verde asserted, because we have no development proposal against which to compare them. Finally, we do not have a record demonstrating a satisfactory relationship between the proposed open space condition and the development itself.

Local governments are required by statute to preserve open space. State law instructs local governments to provide for open spaces and to protect the environment. RCW 36.70A.020(9), (10). State law also directs these governments to assess whether a proposed subdivision makes “appropriate provisions” for open spaces. RCW 58.17.110. Open space requirements reflect public awareness that land is scarce, land use decisions are largely permanent, and, particularly in urban areas, land use decisions affect *773not only the individual property owner or developer, but entire communities.

Other statutes have been adopted to protect property owners and developers from decisions that are arbitrary and capricious, unsupported by substantial evidence, or that are unrelated to the impact of development as analyzed by the majority under RCW 82.02.020. These statutes offer protection against unreasonable and unsupported land use actions, but our prior decisions have addressed their applicability only when we have had sufficient facts to conduct a thorough analysis. See, e.g., Sunderland Family Treatment Servs. v. City of Pasco, 127 Wn.2d 782, 903 P.2d 986 (1995) (remanding where neither defendant nor appellant created a record sufficient to determine whether denial of land use permit was supported by “substantial evidence”); Wenatchee Sportsmen Ass’n v. Chelan County, 141 Wn.2d 169, 4 P.3d 123 (2000) (remanding where necessary to find whether county’s determination under the State Environmental Policy Act (chapter 43.21C RCW) was “clearly erroneous”); Margola Assocs. v. City of Seattle, 121 Wn.2d 625, 632, 854 P.2d 23 (1993) (remanding to decide whether revenues constituted a regulatory fee versus a tax under RCW 82.02.020).

Although I question whether RCW 82.02.020 is the best statute under which to resolve this issue, there is no question that cities may not make land use decisions in an unreasonable manner. Where the record is insufficient to support a decision, the decision may not stand. Therefore, while I agree with the majority’s result, I conclude that in this, and other cases, when we are confronted with a record inadequate to resolve the issues argued, we should remand for further development of the record, rather than deciding issues not properly before us.

The parties are equally likely to be confounded by the majority holding since it is unlike anything presented in their briefing.