(concurring in part, dissenting in part) — While I concur in the result reached in the lead opinion with respect to the erroneous interpretation of Title 26B of the Snoho-mish County Code (SCC), I disagree with its conclusion that agreements under former SCC 26B.55.040 are "voluntary" agreements under RCW 82.02.020. I therefore write separately to address this issue.
RCW 82.02.020 was enacted by the Legislature in 1982
as part of comprehensive legislation that included the grant of authority to certain local governments to impose additional sales and real estate transfer taxes. Along with this additional taxing authority, the Legislature imposed a prohibition of certain development fees. This amendment was the first to confront the imposition of fees as a condition to development, even though there had been other proposals before the Legislature to expand or limit municipalities' authority to impose such fees.
(Citations omitted.) R/L Assocs., Inc. v. Seattle, 113 Wn.2d 402, 406-07, 780 P.2d 838 (1989).
In R/L Associates, the Supreme Court recognized that earlier cases had "resisted a literal application of RCW 82-.02.020". 113 Wn.2d at 408. In determining that henceforth the statute must be strictly applied, the court observed that
the [earlier] cases implicitly recognized the importance of the statute as a source of local government's authority to economically burden development, but gave the statute a narrow construction and limited application. However, in the fight of the Legislature's clear intent as embodied in the statute's language, and the circumstances surrounding its enactment, we find that such a construction is not warranted, and will apply the statute according to its plain and unambiguous terms.
R/L Assocs., 113 Wn.2d at 409. Thus, our first task is to determine, in the context of this case, what those "plain and unambiguous terms" are.
*462In order to properly analyze RCW 82.02.020, we must first clarify what it is and is not. It is apparent that it is not an enabling statute. It confers no authority on municipalities to impose conditions on development or charge fees in the absence of independent authority permitting the imposition of conditions for which the fee is a substitute. The statute is first and foremost a taxing statute. It begins by declaring that
Except only as expressly provided in [three statutes not relevant here], the state preempts the field of imposing taxes upon [various commodities and activities]. . . . 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 wdthin 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.
RCW 82.02.020. As a first principle, then, the statute is a prohibition on direct or indirect taxes, fees, or charges on development activity except that on-site dedications and easements which are permitted by other statutes are not prohibited by RCW 82.02.020.
While generally prohibiting what have come to be known as development fees or exactions, RCW 82.02.020 then enumerates certain exceptions which include "voluntary agreements .. . 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." (Italics mine.) The voluntary agreement provisions of RCW 82.02.020 do not themselves grant authority to require developer exactions. Rather, they "allow" the local government and the developer to enter into an agreement to pay a fee as an alternative to dedicating land or complying with a mitigation requirement which that government may impose *463as a result of authority granted by another statute or ordinance.4
The County cites us to no independent authority which would permit it to require Cobb to construct or contribute to the construction of a left turn lane at the intersection of State Highway (SR) 99 and 234th Street S.W.5 Thus, the first problem with former SCC 26B.55.040 is that it exceeds the limited authority of RCW 82.02.020 by imposing "voluntary" fees as a condition of project approval where the county has no independent authority to impose a condition for off-site improvements. The ordinance simply pronounces that, where the project is found to impact roads which are at LOS D or E, the developer shall form a road improvement district (RID) to fund "full improvements"6 or enter into a "voluntary agreement" to pay for some or all of the *464improvements. In the absence of independent authority to require the developer to build the improvements, the county cannot use RCW 82.02.020 as part of a bootstrap operation to supply that authority and then require payment of a fee as a substitute for construction of improvements it cannot require in the first place.
The second major problem with the ordinance arises from its apparent misapprehension of the meaning of the word "voluntary" as it is used in RCW 82.02.020. As noted above, the statute
does not prohibit voluntaiy 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.
The word "voluntary" is not defined in the statute. Where there is no statutory definition, the court must give a word its ordinary and usual meaning. State v. Standifer, 110 Wn.2d 90, 92-93, 750 P.2d 258 (1988). The word "voluntaiy" is defined as "proceeding from the will[;] produced in or by an act of choice performed, made, or given of one's own free willacting of oneself[;] not constrained, impelled, or influenced by another". Webster's Third New International Dictionary 2564 (1986).
In order to be voluntaiy, an agreement must at least present the parties with a viable choice. However, under the Snohomish County ordinance at issue here, former SCC 26B.55.040, the only option given the permit applicant is to pay a fee or have the requested permit application denied. This is not a choice. It is tantamount to a contract of adhesion where, if the applicant wants the permit, there is no choice but to accept the terms that are dictated by local government officials. The permit applicant is not acting of his or her own will "not constrained [or compelled] by another" when paying a fee solely to avoid denial of the requested land-use approval.
*465This is not to say that, in the context of obtaining development permits, the statutory provision allowing voluntary developer agreements is meaningless. On the contrary, there are numerous instances in which an applicant, legitimately required under another statute to dedicate land, reduce the size of a proposed development, or take other steps to mitigate impacts, will voluntarily choose to pay a fee instead. Should the applicant determine that a dedication of land would detract from the appearance of or reduce the market for its project, it may choose to pay a fee rather than dedicate the land which the local government can legitimately require pursuant to RCW 58.17. In order to mitigate impacts on an environmentally sensitive area, a developer may choose to contribute funds to additional drainage facilities or improvement of an off-site stream or wetland. Both the municipality and project applicants may agree that it is mutually beneficial for the developers to pay into a fund to purchase a large amount of open space to be developed into a park rather than accepting dedications of small areas of open space which are not amenable to such desirable improvements as ball fields, playgrounds and the like. While perhaps not entirely desirable from the applicant's viewpoint, these are true choices because the local government has clear authority to require the applicant to dedicate the land or mitigate the impact.
Former SCC 26B.55.010(4) and .040 purport to allow the County, as they did in this case, to decide that the only feasible method "of accomplishing the required road work" is payment of a fee. Under such circumstances, the other "choice" provided by the ordinance, formation of an RID to fund the full cost of the improvement, becomes illusory, and the developer is left to pay the fee or face denial of its proposal. Such agreements are not "voluntary" within the meaning of RCW 82.02.020 and exceed the authority granted to the county to impose fees. Former SCC 26B.55-.040 is therefore invalid on this ground as well.
*466I recognize that another division of this court has defined "voluntary" in the context of RCW 82.02.020 in a manner that would arguably permit Snohomish County to impose fees under the statute. Southwick, Inc. v. Lacey, 58 Wn. App. 886, 795 P.2d 712 (1990). However, a review of the conditions to which Southwick was objecting in that case clearly distinguishes it from this one. In that case, the developer was objecting to requirements that it make improvements to the streets and sidewalks both on site and immediately adjacent to its expanded cemetery and funeral home complex, provide plans for and install improvements in water service to its project, increase the flow of water to the property and install sprinklers and a fire alarm system on the premises. All of these are improvements to the property itself or are required to facilitate services to the project which the City of Lacey could impose pursuant to the zoning, building and fire codes already in effect.7 The City neither relied upon RCW 82.02.020 for authority to impose these requirements nor authorized payment of a fee in lieu of building the required improvements. This alone distinguishes Southwick from this case because, as noted above, Snohomish County had no authority independent of RCW 82.02.020 to require Cobb to improve the intersection in question.
In addition, I question the interpretation the Southwick court gave to the word "voluntary" in the statute. It relied upon the dissent in Chrobuck v. Snohomish Cy., 78 Wn.2d 858, 889, 480 P.2d 489 (1971), in which the issue was entirely different.8 At issue there was the assertion that the *467County could not enter into a concomitant zoning agreement with a property owner because to do so would bind the County to exercise its zoning power in a particular way, thus impermissibly "bargaining away its regulatory police power". Chrobuck, 78 Wn.2d at 888 (Neill, J., dissenting) (quoting State ex rel. Myhre v. Spokane, 70 Wn.2d 207, 216, 422 P.2d 790 (1967)).9
The issue in Chrobuck and Myhre was whether the local government could enter into an agreement to grant a rezone without committing an ultra vires act. That is far from the issue here; i.e., whether an agreement to pay a fee to offset the cost of an off-site improvement is voluntary when the county lacks independent authority to require construction of the improvement in question. Thus, while I have no quarrel with the indices of validity of a concomitant zoning agreement set out in Chrobuck, reliance on those factors is not relevant to or persuasive in determining whether an agreement is voluntary under RCW 82.02.020.
Finally, former SCC 26B.55.040 does not comply with the requirement of RCW 82.02.020 that fees, where permissible, "mitigate a direct impact that has been identified as a consequence of a proposed development". This statutory phrase reflects the Legislature's adoption of the "nexus" requirement imposed by case law on governmental exactions and conditions. Nollan v. California Coastal Comm'n, 483 U.S. 825, 97 L. Ed. 2d 677,107 S. Ct. 3141 (1987). Simply stated, there must be a nexus, a direct connection, "between the condition and the original purpose of the building restriction". Nollan, 483 U.S. at 837. Where the exaction or other condition does not mitigate an impact of the development, it *468is an unlawful exercise of the police power. Unlimited v. Kitsap Cy., 50 Wn. App. 723, 727, 750 P.2d 651, review denied, 111 Wn.2d 1008 (1988), cited with approval in Presbytery of Seattle v. King Cy., 114 Wn.2d 320, 336 n.30, 787 P.2d 907, cert. denied, 111 S. Ct. 284 (1990).
The Snohomish County ordinance applies to "[d]evelopers whose projects will be served by a road system which will be at level of service [LOS] D following completion of the development". Where the road system itself is at LOS D, the developer is then required to "mitigate the direct impact of said development". Former SCC 26B.55.040(1). This language allows Snohomish County to impose the requirements of the ordinance whether or not the direct impact of the development causes the road system in question to be at LOS D. Exactions on this basis are not permitted by the terms of RCW 82.02.020. The statute requires that any exactions be imposed in order to mitigate an impact of the development. If the road system is LOS D with or without the project, there is no impact to be mitigated, and the nexus requirement of the statute is not satisfied.
The problem is illustrated by the facts of this case. Cobb's proposal is for 18 lots which will add nine peak-hour trips to an intersection in which the existing peak-hour trips total 2,622. Its maximum impact will be to add two left-turning vehicles to a left turn lane which is now and will continue to be at LOS C. Where, as here, there is no showing that the project will contribute to a worsening of the level of service, RCW 82.02.020 does not permit imposition of fees to offset the costs of mitigation measures. There simply is no significant impact to mitigate.
In summary, in the absence of another statute or ordinance permitting the county to require mitigation of the impacts of the project, a nexus between those impacts and the mitigation measures being imposed, and a true choice offered to the project proponent to pay a fee rather than construct improvements or dedicate land to satisfy the legitimate requirement that it mitigate the direct impacts of *469development, the county is without authority to require a developer to pay a fee.
lb rule otherwise is to effectively write the word "voluntary" out of RCW 82.02.020. The Supreme Court has unequivocally held that the statute must be interpreted "according to its plain and unambiguous terms", R/L Assocs., 113 Wn.2d at 409. This approach to the statute gives the word "voluntary" its ordinary meaning and furthers the intent of the Legislature that local government's power to exact fees from developers be limited to those circumstances in which the Legislature has affirmatively granted authority to do so.
After modification, further reconsideration denied February 28, 1992.
Review denied at 119 Wn.2d 1012 (1992).
For example, RCW 58.17.110(2) permits the local government to require "Medication of land to any public body ... as a condition of subdivision approval". Similarly, under the authority of the State Environmental Policy Act of 1971, applicants may, under circumstances dictated by the statute, be required to comply with conditions imposed by local government to "mitigate specific adverse environmental impacts" of a proposal. RCW 43.21C.060. These conditions may include reconfiguration of lots, preservation of open space, improvement of utilities and numerous other conditions for which an applicant may prefer to pay a fee for off-site mitigation measures rather than significantly change the configuration of the development.
We note that this project was not found to require an environmental impact statement under SEPA, and no significant adverse environmental impacts associated with the roads in question were identified which would permit the County to require mitigation under RCW 43.21C. Nor could fees be imposed in this case under RCW 82.02.050 et seq., which do permit local governments to require developers to pay impact fees to finance their proportional share of "new facilities needed to serve new growth and development”, RCW 82.02.050(l)(b), because that statute was not enacted until 1990.
Of the four options under former SCC 26B.55.040(1), only one does not involve an agreement to pay a fee. Subsection (b) allows formation of an RID for "full [rather than a proportionate share] improvements" to the road or roads in question. However, an RID was clearly impossible here because SR 99 is a state road which the Department of Transportation did not want improved, and the cost of funding the entire left turn lane greatly exceeded the fee. It is also not at all clear that formation of an RID under these circumstances was feasible since Cobb's project represented such a small proportion of the properties that would have to consent to the RID.
For example, the Uniform Building, Mechanical and Fire Codes, together with applicable code standards, which must be adopted by every municipality in Washington, RCW 19.27.031, provide independent authority to require adequate sprinkler, fire alarm and water systems. Cities of all classes are granted legislative authority to adopt ordinances to provide standards for construction and maintenance of streets, sidewalks, gutters and associated improvements on site. RCW 35.22.280 (first class cities); RCW 35.23.440 (second class cities); RCW 35.70 (third class cities); RCW 35.27.370 (towns); RCW 35A 11.020 (optional municipal code cities).
The majority in Chrobuck did not reach the issue of the validity of the concomitant zoning agreement on which the Southwick opinion is based because *467it reversed the rezone on other grounds. This issue was addressed only in Justice Neill's dissent. Chrobuck, 78 Wn.2d at 874, 887.
A concomitant zoning agreement is a contract between the governing body of the municipality and the applicant for a rezone which conditions approval of the rezone on the agreement of the applicant to comply with conditions on its use and development of the property. Myhre, 70 Wn.2d at 209. The conditions agreed to must be permissible exercises of the police power authorized by statute or ordinance. Myhre, at 215-17; Besselman v. Moses Lk., 46 Wn.2d 279, 280 P.2d 689 (1955).