City of Olympia v. Drebick

¶22 (dissenting) — The city of Olympia (City) claims the fees at issue here “are, in essence, excise taxes on new development generally. . . ”8 “because the ultimate purpose of the fees is to generally raise revenue to fund needed public facilities and infrastructure.”9 I agree. The resulting problem for the City is therefore twofold: (1) the City has not been statutorily authorized to impose an excise tax on new development and (2) the City has been specifically prohibited by RCW 82.02.020 from doing just that. To put it simply, the only way these fees could pass statutory, much less constitutional,10 muster is that they be true “impact fees” as that term is defined and limited by the legislature, which excise taxes clearly are not.

Sanders, J.

¶23 Having stated the general proposition, I repair to the facts, which demonstrate these fees are indeed excise *310taxes on new construction, precisely as contended by the City.

¶24 In 1998 petitioner Drebick Investments (Drebick) sought land use approval from the City to construct a four-story office building complex at a corner of the city boundary near an exit to Highway 101. The municipality imposed a $132,000 traffic fee as a condition to new development based upon contemplated cost of citywide traffic projects without regard to the specific impact the Drebick development might or might not have on any proposed project or any benefit the Drebick development would derive from the new public facilities.11 Drebick contended any additional traffic added by his construction would make minimal, if any, use of the contemplated improvements because of the remote proximity of his development to those projects and traffic patterns which would substantially exclude their use by new development traffic.

¶25 The matter ultimately proceeded to the City’s hearing examiner. He factually found:

36. Under Olympia’s method, a transportation impact fee does not depend on or vary with the location within the City of the development charged. The fee does not depend on or take into account whether the development charged actually contributes any trips to any of the project groups on which the fee is based.
39. Under Olympia’s method, the transportation impact fee assessed the Drebick proposal is not proportionate to or reasonably related to the service demands or needs created by the *311Drebick proposal on each of the individual project groups on which the impact fees are based.
40. The only manner in which the Drebick proposal could be benefited by specific transportation improvements projects it will not use, considered individually, is if those improvements relieve traffic pressure on other links used by the Drebick proposal or if they improved emergency response to the Drebick proposal. No evidence was submitted showing this for any of the individual improvements. Under Olympia’s method, the transportation impact fees assessed the Drebick proposal may be used for individual transportation facilities which do not reasonably benefit the Drebick proposal.

Clerk’s Papers (CP) at 22-23 (Findings and Decision of the Hr’g Exam’r of the City of Olympia) (Nov. 2, 2000). No error has been assigned to these findings. Thus they are verities for the purposes of this appeal. Henderson Homes, Inc. v. City of Bothell, 124 Wn.2d 240, 244, 877 P.2d 176 (1994).

¶26 Notwithstanding, the City conditioned Drebick’s use and development of his property upon payment of a transportation “impact fee” of more than $132,000. The hearing examiner set aside this fee because of its perceived conflict with chapter 82.02 RCW. The superior court then reversed the hearing examiner. However, the Court of Appeals reversed again, affirmed the hearing examiner, and remanded for further proceedings. In this context, our majority characterizes the issue to be determined:

In calculating the transportation impact fees imposed on the Drebick development, did the City comply with the statutory standards set forth in RCW 82.02.050-.090 for apportioning such fees?

Majority at 294. Although I generally agree with the majority’s characterization of the issue as a statutory one, the majority assumes the answer to the real question which is whether we should characterize these fees as “impact fees,” the only fees permitted by RCW 82.02.050 through .090.

*312¶27 The relevant statutes are contained in chapter 82.02 RCW. RCW 82.02.020 is a broad prohibition on development fees with certain exceptions:

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. . . commercial buildings ....

The $132,000 exaction at issue is obviously within the scope of the aforementioned text since it is imposed on the construction of commercial buildings. Moreover, and just as clearly, it is statutorily barred unless it falls within the statutory exemptions codified in RCW 82.02.050 through .090, all of which relate to “impact fees.” As used in the statute, “impact fee” is a term of art defined as:

[A] payment of money imposed upon development as a condition of development approval to pay for public facilities needed to serve new growth and development, and that is reasonably related to the new development that creates additional demand and need for public facilities, that is a proportionate share of the cost of the public facilities, and that is used for facilities that reasonably benefit the new development. . . .

RCW 82.02.090(3). Impact fees are therefore by definition site specific to the new development, unlike taxes which generally raise revenue to fund needed public facilities without regard to the impact on or benefit derived by the new individual development from those facilities. Arborwood Idaho, L.L.C. v. City of Kennewick, 151 Wn.2d 359, 371, 89 P.3d 217 (2004).12 Keeping this distinction in mind, it is telling that even the City claims the fees at issue here “are, in essence, excise taxes on new development generally.” Br. of Resp’t City of Olympia (Ct. App. No. 29018-9-II) at 12. The problem is “excise taxes on new development generally” cannot meet the definition of “impact fees” because taxes have no necessary relationship to meeting the additional demands of “the new development,” nor do they *313necessarily benefit “the new development” by building facilities to be actually used by the new development.

¶28 RCW 82.02.050(3) reinforces the statutory definition with express limitations:

The impact fees:

(a) Shall only be imposed for system improvements that are reasonably related to the new development;
(b) Shall not exceed a proportionate share of the costs of system improvements that are reasonably related to the new development', and
(c) Shall be used for system improvements that will reasonably benefit the new development.

(Emphasis added.) RCW 82.02.060 prescribes the format of a local impact fee ordinance:

Impact fees — Local ordinances — required provisions.
The local ordinance by which impact fees are imposed:
(1) Shall include a schedule of impact fees which shall be adopted for each type of development activity .... The schedule shall be based upon a formula or other method of calculating such impact fees. In determining proportionate share, the formula or other method of calculating impact fees shall incorporate, among other things, the following:
(a) The cost of public facilities necessitated by new development;
(b) An adjustment to the cost of the public facilities for past or future payments . . .;
(c) The availability of other means of funding . . .;
(d) The cost of existing public facilities improvements; and
(e) The methods by which public facilities improvements were financed;
(4) Shall allow the county, city, or town imposing the impact fees to adjust the standard impact fee at the time the fee is imposed to consider unusual circumstances in specific cases to ensure that impact fees are imposed fairly;
(5) Shall include a provision for calculating the amount of the fee to be imposed on a particular development that permits *314consideration of studies and data submitted by the developer to adjust the amount of the fee;
(6) Shall establish one or more reasonable service areas within which it shall calculate and impose impact fees for various land use categories per unit of development....

RCW 82.02.060 (emphasis added).

¶29 I agree with the majority that the statutory terms “the new development” and “development activity” and “particular development” relate to a specific proposed project, not projected community development in the aggregate. Majority at 296-99. However, the majority essentially fails to recognize that “impact fees” as that term is used in RCW 82.02.060 is a term of art specifically defined to be “reasonably related to the new development that creates additional demand and need for public facilities, that is a proportionate share of the cost of the public facilities, and that is used for facilities that reasonably benefit the new development.” RCW 82.02.090(3) (emphasis added). Further, the majority ignores RCW 82.02.050, which specifically limits impact fees to (a) system improvements that are reasonably related to the new development, (b) the proportionate share of the cost of those reasonably related system improvements reasonably related to the new development, and (c) system improvements that will reasonably benefit the new development. Rather the fees allowed by the Olympia ordinance are not calculated to specifically cure an impact of “the new development,” nor are they for projects which serve the new development. Rather this fee is based on the aggregate of all new development without regard to the cause, consequence, or proportionality as it relates to the specific development at issue here.

¶30 In the context of this case the fee imposed on Drebick under the municipal ordinance does not meet the definition of “impact fee” because the projects funded by the fee were not reasonably necessitated by the Drebick development, nor would they be necessarily even used by the Drebick development. In the same sense they violate the limitation criteria in RCW 82.02.050(3).

*315¶31 The conclusion that the definition and limitation clauses necessarily apply to the application of any ordinance adopted pursuant to RCW 82.02.060 is buttressed by that statute’s reference to “impact fees” and other language which requires site specific consideration by any proper ordinance. Section .060(4) of the statute requires the ordinance to adjust the fee imposed “to consider unusual circumstances in specific cases to ensure that impact fees are imposed fairly.” Subsection (5) requires the ordinance to “include a provision for calculating the amount of the fee to be imposed on a particular development that permits consideration of studies and data submitted by the developer to adjust the amount of the fee.” (Emphasis added.) And subsection (6) requires the ordinance “[s]hall establish one or more reasonable service areas within which it shall calculate and impose impact fees for various land use categories per unit of development.” (Emphasis added.) Each of those provisions specifically contemplate, consistent with the definition of impact fee and the limitations on an impact fee, that the fee be tailored to the actual impact of the specific individual new development notwithstanding the prescriptive manner of calculating the fee. The “reasonable” service areas requirement also highlights the proposition that a proper ordinance would establish service areas which actually serve the proposed development.

¶32 As to the last point, the majority seems to confuse the propriety of the service area designation with the quite independent analysis of whether the resulting fee imposed as a precondition to development meets the statutory definition of “impact fee.” See majority at 304-07. Just because RCW 82.02.060 provides the statutory authority and outlines the necessary components of a local ordinance to assess “impact fees” within a “reasonable service area[ ]” does not mean that the resulting fee will actually be an “impact fee” as statutorily defined. That statutory definition includes the requirement that the fee “is reasonably related to the new development that creates additional demand and need for public facilities . ...” RCW 82-*316.02.090(3). Therefore, by the majority’s own statutory analysis, the ultimate fee must be calculated on site specific criteria. Whether or not a local ordinance which sets up a fee schedule based upon a formula and a service area actually produces a legitimate “impact fee” must, however, be determined on an as applied basis, to the Drebick building, for example.

¶33 The crux of the majority’s flaw in reasoning is its assumption, absent statutory or precedential support, that any impact fee ordinance that meets the procedural requirements contained in RCW 82.02.060 per se produces a statutory impact fee tailored to the requirements of proportionality and reasonable causation by, and reasonable benefit to, the specific development project at issue. Majority at 298-99. The majority’s conclusion that “the legislature did not require that the funded facilities be directly or specifically related and beneficial to the development seeking approval”13 is therefore most problematic. Majority at 301.

¶34 The majority assumes this conclusion through an unanalyzed premise: a city or county is permitted to draw a single service area encompassing the whole of that city or county, and therefore all “system improvements” within that service area may be properly charged to any new development consistent with the statute. The majority’s conclusory statement, “As permitted in RCW 82.02.060(6), the City ‘elected to base its fee structure on a single service area coterminous with its Urban Growth Area,’ ” majority at 304,14 is devoid of any discussion of the actual statutory requirement. Indeed, the actual text requires the “local ordinance by which impact fees are imposed ... (6) [s]hall establish one or more reasonable service areas within which *317it shall calculate and impose impact fees for various land use categories per unit of development.” RCW 82.02.060.

¶35 Trimen Development Co. v. King County, 124 Wn.2d 261, 877 P.2d 187 (1994) provides an example of an appropriate ordinance, although its facts arose before the adoption of sections .050 through .090. Under that ordinance, King County imposed park development fees on new construction. Although King County did not conduct a site specific study relating to the Trimen Development, it did calculate the general deficit of parks in the vicinity and the statistical probability of additional park use by each unit of new residential development. The fee was to be expended only in the “park service area” of the new development, an area roughly the size of elementary school boundaries. This methodology, we held, adequately demonstrates the additional need for park space necessitated by each new unit of residential development along with the cost of acquiring it within the specific area to be used by the specific new development. We went on to specifically distinguish the park fee as there calculated from a “tax” which not only lacked legislative authorization but would violate the prohibition of RCW 82.02.020, holding these park fees “ ‘are reasonably necessary as a direct result of the proposed development’ ” and are required to mitigate the direct impact of the development. Id. at 270-71 (quoting RCW 82-.02.020). However in the case at bar, as acknowledged by the City, the fees at issue are in the nature of taxes to fund generalized public improvements which cost money, not impact fees.

¶36 Moreover, it is important to notice that the park fees were sustained in Trimen because they were calculated based upon a “park service area” around the new development only approximately the size of elementary school boundaries, i.e., an area where projected new residents would reasonably recreate in any new park space to be acquired. However, the difference between the park service area approved in Trimen and the citywide service area in the case at bar is a qualitative difference of exponential *318magnitude. Trimen residents would probably use the new park space whereas Drebick customers would not necessarily use new traffic improvements geographically remote from the Drebick building.

¶37 But by the majority’s logic, it is “reasonable” for a city which comprises 17 square miles,15 has almost 80 miles of major roads,16 and has a population of 43,330 people17 to draw a single service area and therefore any resulting fee must be a legitimate “impact fee.”

¶38 Thus, King County could define its service area as the entire county. A new resident of Vashon Island could be made to pay fees for a system improvement made in Skykomish, even though the Vashon resident may never use a road improvement located 60 miles — and one large body of water — away. Or perhaps Stevens County might decide to charge “new development” located outside Northport for a transportation improvement located outside Tumtum, 80 miles distant? Or San Juan County could charge developers on Oreas Island to add a lane to a road on Lopez Island? All this is perfectly sanctioned by the majority opinion, although none of the resulting fees imposed under such ordinances would be reasonably related to the new development nor reasonably benefit the new development, and hence neither fits the statutory definition of “impact fee” nor complies with RCW 82.02.050.

¶39 Further, the statutory definition of “service area” belies the majority’s conclusion that Olympia appropriately drew a single service area for the entire city. RCW 82-.02.090(8) defines “[s]ervice area” as “a geographic area defined by a county, city, town, or intergovernmental agreement in which a defined set of public facilities provide *319service to development within the area.” (Emphasis added.) A road which no customer, resident, or visitor to the new development will use hardly provides service to that development.

¶40 In addition to its failure to properly follow the “reasonable” requirement in relation to the scope of the service area, which might at least begin to re-moor the statute to its constitutional pilings, the majority fails to apply “reasonably related” or “reasonably benefit” according to the expressed intent of the legislature. The majority does this by accepting unchallenged the assertion that “ ‘Every land use benefits in a general sense from a smoothly functioning transportation system with adequate capacity in the jurisdiction in which it is located.’ ” Majority at 305 (quoting CP at 22 (Hr’g Exam’r Findings and Decision, Finding 35)). Yes, but that is what taxes are for.

¶41 At this level of abstraction, every improvement in any city or county is per se reasonably related to new development in that city or county and reasonably benefits new development in that city or county. The “reasonableness” protections of the statute, the definition of impact fees, and the statutory limits on impact fees are thus rendered a nullity. The legislature could have composed a much simpler statute by simply authorizing local governments to impose jurisdiction-wide excise taxes on all new development without regard to the impact that new development might have on public facilities. But it didn’t. Yet that’s what the majority gives us.

¶42 Most fundamentally, only “system improvements” can be financed by “impact fees,” RCW 82.02.050(3), but such system improvements must still be reasonably related to and reasonably benefit the new development in order to be “impact fees.” RCW 82.02.050(3)(a)-(c).

¶43 However this ordinance requires no relation between the new development and the public facility, let alone a “reasonable” one. But we need not rely on the common understanding of the text. The legislative history, well documented by the Court of Appeals, conclusively *320demonstrates that the standard of “reasonableness” the legislature intended to be applied with regard to RCW 82.02.050(3)(a)-(c) and 82.02.060(6) is the NollanIDolan standard.18

¶44 The Court of Appeals extensively reviewed the legislative history of House Bill 2929,19 which was the initial legislation of what became known as the Growth Management Act (GMA) (chapter 36.70A RCW). For our purposes, the most important conclusion to be drawn from the legislative history is the legislature’s deliberate use of the identical terms the United States Supreme Court used to describe the “nexus” requirement of the Fifth Amendment: “reasonably related to.” City of Olympia v. Drebick, 119 Wn. App. 774, 785, 83 P.3d 443 (2004) (quoting Nollan, 483 U.S. at 838). As the Court of Appeals noted:

When the 1990 legislature was considering the GMA it undoubtedly knew about Nollan, which was then the only case in which the United States Supreme Court had addressed the propriety of conditioning a building permit on the exaction of private property without compensation. Thus, we infer that the 1990 legislature did not use Nollan’s phrase (“reasonably related to”) by coincidence; instead, we think, the legislature used the same phrase with intent to adopt Nollan’s meaning and assure the new statute’s constitutionality. Nollan had used the phrase (“reasonably related to”) to mean a link or “nexus” between the public problem to be alleviated and the individualized impacts of the permittee’s specific project, and we conclude that the 1990 legislature used the same phrase in the same way.

Id.20

*321¶45 Nollan, of course, required a nexus between the exaction21 and the individualized impacts of the specific project. Nollan v. Cal. Coastal Comm’n , 483 U.S. 825, 837, 107 S. Ct. 314, 97 L. Ed. 2d 677 (1987). Dolan extended Nollan by additionally requiring that the exaction be roughly proportional to the impacts of the development. Dolan v. City of Tigard, 512 U.S. 374, 391, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994). But even if the legislature had only Nollan’s definition of “reasonably related” in mind when it used the exact same phrase, our majority defeats the Nollan and the Washington State Legislature’s definition.

¶46 The citywide averaged fee imposed in this case by definition does not consider the individual impacts of Drebick’s development and therefore fails both the Nollan *322test and the requirement that the impact fee be “reasonably related” to the development under RCW 82.02.050(3).22

¶47 Finally, the definition of “[proportionate share” in RCW 82.02.090(5) supports the conclusion that the legislature intended the Nollan definition of “reasonably related” (and also tracks Dolan). RCW 82.02.050(3)(b) provides that “impact fees . . . [s]hall not exceed a proportionate share of the costs of system improvements that are reasonably related to the new development.” RCW 82.02.090(5) defines “[proportionate share” as “that portion of the cost of public facility improvements that are reasonably related to the service demands and needs of new development.” (Emphasis added.) This definition clearly defines the amount of impact fees that can be charged in relation to the specific proposed development. The “service demands” of the new development aren’t for a “functioning transportation system,” an abstract notion not susceptible to definition in any event, but for certain capacities on specific roadways that will be utilized by the development’s customers and employees.

*323¶48 This court’s duty is to construe statutes constitutionally if such is possible. High Tide Seafoods v. State, 106 Wn.2d 695, 698, 725 P.2d 411 (1986). Given that the legislatively intended definition of “reasonably related to” in RCW 82.02.050 complies with — and indeed is identical to — the requirements of Nollan and Dolan, a constitutional construction is certainly available. Indeed, we have upheld impact fees while specifically noting Dolan’s requirements where a reasonable service area was drawn under an ordinance that required the infrastructure to actually serve the new development. See Trimen Dev. Co. v. King County, 124 Wn.2d 261, 274, 877 P.2d 187 (1994).23

¶49 The literal text of chapter 82.02 RCW requires an impact fee imposed under RCW 82.02.050 -.090 be “reasonably related to” and “reasonably benefit” the new development and that local governments define “reasonable” service areas. The legislature used Nollan’s exact language for a reason, and the requirement that there at least be a nexus between the impact of the development and the fee imposed thus defines the “reasonableness” of such fees. But here there is no demonstrated connection between this fee and any impact of this development; just the opposite. Thus I *324would hold that Olympia’s citywide averaged fee as applied here violates ROW 82.02.020.

¶50 I dissent.

J.M. Johnson, J., concurs with Sanders, J.

Chambers, J., concurs in the result only.

Reconsideration denied April 13, 2006.

Br. of Resp’t City of Olympia (Ct. App. 29018-9-II) at 12.

Id. at 13.

Absent express authorization, municipalities may not impose a tax (Hillis Homes, Inc. v. Snohomish County, 97 Wn.2d 804, 809, 650 P.2d 193 (1982) Wash. Const, art. VII, § 2), and municipalities may not tax contrary to the general laws (R/L Assocs., Inc. v. City of Seattle, 113 Wn.2d 402, 780 P.2d 838 (1989) and San Telmo Assocs. v. City of Seattle, 108 Wn.2d 20, 24, 735 P.2d 673 (1987); Wash. Const, art. VII, § 5). See also Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987), discussion infra pp. 320-22.

The City projected the cost of all transportation improvement projects inside the urban growth area (UGA) needed to provide capacity for all new growth over a six year period. The City then projected the total number of new afternoon peak hour trips with one end inside the UGA, and it divided the cost by the number of trips. This per-trip cost was then applied to new development by multiplying the derived figure by the number of trips the new development would generate, regardless of whether any of those trips would actually use any of the new transportation improvement projects. Clerk’s Papers at 21 (Findings and Decision of the Hr’g Exam’r of the City of Olympia, Finding 32) (Nov. 2, 2000) (Hr’g Exam’r Findings and Decision).

The majority asserts “merely labeling the GMA impact fees as either taxes or regulatory fees will not be dispositive here.” Majority at 294 n.l. I disagree because taxes by their nature cannot be “impact fees” as statutorily defined, and only impact fees are excepted from the broad statutory prohibition.

“Directly” and “specifically’ are not statutoiy terms, nor are they derived from the relevant constitutional cases. Such terms are easily confused and misunderstood when divorced from the statutory and constitutional context. As noted, supra, the requirement of a nexus and rough proportionality — which define the “reasonable” relationship under the statute — dictate a certain level of connection between the impact fee and the impacts of the development. Whatever that level of connection, whether directly, specifically, reasonably, or roughly related, it is not present in this case.

The majority repeats its conclusion at page 302 without further analysis.

See United States Census Bureau, State and County Quickfacts, http:// quickfaets.census.gov/qfd/states/53/5351300.html (last visited Jan. 13, 2006).

Including interstates, arterials, and collectors, but not even including smaller roads.

See Municipal Research & Servs. Ctr. of Wash., http://www.mrsc.org/ cityprofiles/cityprofile.aspx?id=167 (last visited Jan. 13, 2006). Olympia is the 19th largest city in Washington State. Id. at http://www.mrsc.org/subjects/finance/ ctytax04p.aspx (last visited Jan. 13, 2006).

Nollan v. Cal. Coastal Comm’n, 483 U.S. 825,107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987); Dolan v. City of Tigard, 512 U.S. 374, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994).

See City of Olympia v. Drebick, 119 Wn. App. 774, 781-85, 83 P.3d 443 (2004).

Further, the legislature is presumed to be familiar with judicial decisions on the subject on which it is legislating. Daly v. Chapman, 85 Wn.2d 780, 782, 539 P.2d 831 (1975).

The majority claims “nor does the dissent mention that neither the United States Supreme Court nor this court has determined that the tests applied in Nollan and Dolan to evaluate land exactions must be extended to the consideration of fees imposed to mitigate the direct impacts of a new development, much less to the consideration of more general growth impact fees imposed pursuant to statutorily authorized local ordinances.” Majority at 302. Quite correct, because the United States Supreme Court has vacated statutorily imposed monetary impact fees for further consideration in light of Dolan. Ehrlich v. City of Culver City, 512 U.S. 1231, 114 S. Ct. 2731, 129 L. Ed. 2d 854 (1994). On remand the California Supreme Court “rejected] the proposition that Nollan and Dolan are entirely without application to monetary exactions.” Ehrlich v. City of Culver City, 12 Cal. 4th 854, 876, 50 Cal. Rptr. 2d 242, 911 P.2d 429, 444 (1996). See also Benchmark Land Co. v. City of Battle Ground, 103 Wn. App. 721, 14 P.3d 172 (2000), aff’d on other grounds, 146 Wn.2d 685, 49 P.3d 860 (2002) (holding that Dolan proportionality test applies to impact fees); Sandra M. Stevenson, Antieau on Local Government Law § 56.05 [2], at 56-57 (2d ed. 2006); 2 Patrick J. Rohan, Zoning and Land Use Controls § 9.02, at 9-7 (Eric Damian Kelly ed., 2006); 8 Patrick J. Rohan, Zoning and Land Use Controls § 52A.04[2], at 52A-72 (Eric Damian Kelly ed., 2005) (citing Benchmark Land Co., 94 Wn. App. 537, concluding that Nollan and Dolan tests apply to fees); City of Portsmouth v. Schlesinger, 57 F.3d 12, 16-17 (1st Cir. 1995) (impact fee unlawful exaction); Consumers Union of U.S., Inc. v. State, 5 N.Y.3d 327, 354, 840 N.E.2d 68, 806 N.Y.S.2d 99 (2005) (fee is exaction to which Nollan and Dolan apply); Home Builders Ass’n v. City of Beavercreek, 89 Ohio St. 3d 121, 128, 2000-0hio-115, 729 N.E.2d 349,356 (usingNollan and Dolan tests when “evaluating the constitutionality of an impact fee ordinance”); Town of Flower Mound v. Stafford Estates, L.P., 135 S.W.3d 620, 639-40 (Tex. 2004) (applying Nollan and Dolan to impact fees); J. David Breemer, The Evolution of the “Essential Nexus”: How State and Federal Courts Have Applied Nollan and Dolan and Where They Should Go From Here, 59 Wash. & Lee L. Rev. 373, 390 (2002) (noting “growing recognition that the logic of Nollan and Dolan” applies to fees).

The majority posits a distinction between a “ ‘generally applicable development fee’ ” and a site specific fee. Majority at 302 n.4 (quoting Ehrlich v. City of Culver City, 12 Cal. 4th 854, 881, 911 P.2d 429, 447, 50 Cal. Rptr. 2d 242, cert. denied, 519 U.S. 929 (1996)). I think the majority’s misimpression might be cured if it placed the quoted material in proper context:

One of the central promises of the takings clause is that truly public burdens will be publicly borne. Where the regulatory land-use power of local government is deployed against individual property owners through the use of conditional permit exactions, the Nollan test helps to secure that promise by assuring that the monopoly power over development permits is not illegitimately exploited by imposing conditions that lack any logical affinity to the public impact of a particular land use. The essential nexus test is, in short, a “means-ends” equation, intended to limit the government’s bargaining mobility in imposing permit conditions on individual property owners — whether they consist of possessory dedications or the exaction of cash payments — that, because they appear to lack any evident connection to the public impact of the proposed land use, may conceal an illegitimate demand — may, in other words, amount to “ ‘out-and-out... extortion.’ ” (Nollan, supra, 483 U.S. at p. 837 [97 L. Ed. 2d at 689].).

Ehrlich, 12 Cal. 4th at 876 (alteration in original). Drebick was indeed subjected to a “conditional permit exaction! ]” which also “lackfed] any logical affinity to the public impact of [his] particular land use.” Id. The fact that the fee was calculated pursuant to a formula the application of which “lack[s] any logical affinity to the public impact of a particular land use” hardly cures the constitutional problem which would exist if the same exaction were imposed in the absence of a formulaic ordinance.

The majority’s citation to New Castle Investments v. City of LaCenter, 98 Wn. App. 224, 989 P.2d 569 (1999), and Wellington River Hollow, L.L.C. v. King County, 113 Wn. App. 574, 54 P.3d 213 (2002) are unavailing. New Castle was not a case about the validity of impact fees but about whether the impact fees are land use control ordinances for purposes of our state vesting statute. Further, the Court of Appeals specifically noted that Nollan/Dolan’s requirement of rough proportionality is not necessarily a direct relationship (which would comport with the “exacting correspondence” rejected in Dolan, 512 U.S. at 389-90), but there still must be a “roughly proportional” relationship — a relationship the Dolan Court derived specifically from the “reasonable relationship” test adopted by numerous other state courts. See Dolan, 512 U.S. at 391. Wellington upheld a school impact fee imposed based on projected student enrollment in the school district from the new development. This was at least some link between the impact — more students — and the solution — school improvements. But here the city of Olympia did not demonstrate any link between the “impact” of the new development and the capital facilities to be built. In Wellington, some of the improvements were the addition of classrooms at a high school near the development. However, to the extent that Wellington held that impact fees could be imposed where no use of the facilities by students from the new development would occur, the Court of Appeals opinion in Wellington should not be followed.