SUB18840 HEX Exhibit 15Dennis D. Reynolds Law Office
200 Winslow Way W. Suite 380 Bainbridge Island, WA 98110
Land Use • Fisheries Law • Environmental Law • Business Law • Indian Law • Real Estate
206.780.6777 206.780.6865 fax w ..ddrlawx nn
August 15, 2014
Email: DRosenabainbrideewa ov
Stafford L. Smith, Hearing Examiner
c/o Debbie Rose, Hearing Examiner Clerk
City of Bainbridge Island
280 Madison Avenue North
Bainbridge Island, WA 98110
Re: Limits on Off -Site Traffic mitigation
Dear Examiner Smith:
We have been retained by BGH, LLC d/b/a BGH Development ("BGH") to provide
information and analysis on the Rolling Sunrise subdivision, SUB 18840.
BGH supports community initiatives to improve public roads and streets. It would gladly
pay its share of citizen initiated efforts such as a LID to improve roads in the vicinity of its plat
project. On the last point, however, the law does not require a developer to ameliorate past
impacts or essentially upgrade public facilities solely at its own cost.
BGH understands that the City Staff will provide more information and specific
recommendations to the Examiner at the continued public hearing set for August 21, 2014 to
address concerns set out in the Notice of Continuance dated July 25, 2015 Thus, it appears
unnecessary at this time to provide more legal comment on the absence of a legal basis to compel
a developer to upgrade existing infrastructure. Stating as much, BGH is willing to consider some
voluntary mitigation within the constraints of the economics associated with a small plat project.
For this matter, some perspective is in order. The contribution of the Rolling Sunrise
project to the public road system is negligible. Only four units come off Sunrise and three off of
Hyla. Thus, the concern is with existing conditions; it is not one of mitigating significant
adverse impacts.
Our task is to provide comment on the Notice of Continuance issued by the Examiner.
Therein, the Examiner requests a "re -look" at road access to the plat, including "...sight distance,
drainage and construction access issues..." This small project does not invoke a requirement for
a traffic report. However, adequate provision for roads is a factor.
The purpose of this letter is to provide the legal framework within which mitigation
decisions can be made. By pointing out legal limits on imposing project mitigation, BGH does
[90196-11
/ Stafford L. Smith, Hearing Examiner
August 15, 2014
Page 2
not want to appear that it is disinterested or disrespectful of the Examiner's concerns; nothing
could be further from the truth.
Under Washington Law, mitigation and the limits of government to require mitigation are
found in local law, state law, and constitutional requirements. A developer can voluntarily agree
to provide mitigation, but not under duress. Unjustified or unsupported mitigation as the price of
an approval constitutes duress.
A recent case issued by the United States Supreme Court (Koontz v. St. John River Water
Management) appears helpful. Briefly, the decision places significant limits on local
governments to condition or deny a project. Specifically, a denial cannot be based upon a project
developer's refusal to provide project mitigation that is (1) not necessary to mitigate impacts
directly related to the proposal, or (2) not "roughly proportionate" to project impacts.
(1) SEPA SUBSTANTIVE AUTHORITY
In Washington State, under the State Environmental Policy Act (SEPA), there is a fairly
narrow legal basis to impose reasonable project mitigation. The doctrine is called "SEPA
Substantive Authority." See RCW 43.21.060. There are significant restrictions on the exercise
of SEPA Substantive Authority, however as set out below.
To expand on the last point, although a governmental agency can condition or deny a
proposal based on SEPA, the agency must comply with certain statutory and regulatory
requirements. Cougar Mountain Associates v. King County, 111 Wn.2d 742, 752, 765 P.2d 264
(1988). Those requirements are contained in RCW 43.21C.060, which limits the exercise of
substantive SEPA authority to condition a preliminary plat or other land use approval.
First, a project may be conditioned or denied "only to mitigate specific environmental
impacts" identified in the environmental documents prepared under SEPA. RCW 43.21 C.060.
Under this statutory limitation on exercise of SEPA substantive authority, land development may
be conditioned "only on the basis of specific, proven significant environmental impacts". Levine
v. Jefferson County 116 Wn.2d 575, 807 P.2d 363 (1991) (quoting Nagatani Bros., Inc. v. Skagit
Cy. Bd. ofComm'rs, 108 Wn.2d 477, 482, 739 P.2d 696 (1987)).
Here, no impacts rise to the level of "significance" as that term is defined in the law.
The "specific adverse environmental impacts" that a developer may be required to
mitigate must be directly related to the proposed development. That is, mitigation measures can
only be imposed "to the extent attributable to the identified adverse impacts" of the proposal.
WAC 197-11-660(d). These identified adverse impacts must also be "significant adverse
impacts," as some impacts are always present in any land use. See, e.g., WAC 197-11-350(2);
RCW 43.21C.060; Maranatha Mining Inc. v. Pierce County, 59 Wash. App. 795, 801 P2d 985
(1990). The term "significant" is defined in SEPA to mean "a reasonable likelihood of more
than a moderate adverse impact on environmental quality." See WAC 197-11-794(1).
[90196-11
Stafford L. Smith, Hearing Examiner
August 15, 2014
Page 3
Second, the mitigating condition imposed under SEPA must be based "upon policies
identified by the appropriate governmental authority and incorporated into regulations, plans, or
codes which are formally designated by the agency." RCW 43.21C.060.
Third, mitigation conditions imposed under authority of SEPA "shall be reasonable and
capable of being accomplished." RCW 43.21C.060.
(2) STATUTORY LIMITS
In addition to the limitations under SEPA, there are statutory and constitutional
limitations which apply as well. Starting with the statutory requirements, RCW 82.02.020
prohibits municipalities from imposing a "tax, fee, or charge, either direct or indirect, on ...the
development, subdivision, classification or reclassification of land" unless "reasonably necessary
as a direct result of the proposed development or plat."
Washington's courts have interpreted RCW 82.02.020 to contain a statutory requirement
that a local government establish a "nexus" between a restriction on the property and the
identified impact, 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.
To meet RCW 82.02.020's "reasonably necessary" requirement, or nexus, a land use
decision containing a development condition or exaction must be tied to a specific, identified
impact of a development on a community:
[A condition on development] must "mitigate a direct impact that has been identified as a
consequence of a proposed development" ... reflects the legislature's adoption of the
"nexus" requirement imposed by case law on governmental exactions and conditions.
Nollan v. California Coastal Comm'n, 384, U.S. 825 (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 is an unlawful exercise of police
power. Unlimited v. Kitsap Cy., 50 Wn. App. 723, 727 (1988).
Cobb v. Snohomish County, 64, Wn. App. 451, 467-68 (Agid J., concurring and dissenting in
part) (Internal citations modified); see also Isla Verde Intl Holdings, Inc. v. City of Camas, 146
Wn.2d 740, 761 (2002); Henderson Homes, Inc. v. City of Bothell, 124 Wn.2d 240, 242-44
(1994).
The statutory requirements set out in RCW Chapter 82.02 have been applied many times.
When addressing the requirements in the context of plat approvals and traffic mitigation, the
courts have not hesitated to strike down government imposed mitigation if no showing of direct
impacts caused by a proposed project was made. See Sparks v. Douglas County, 127 Wn.2d 901,
915, 904 P.2d 738 (1995) (applicable to dedication of right of way as condition of plat approval);
[90196-11
Stafford L. Smith, Hearing Examiner
August 15, 2014
Page 4
United Development Corp. v. City of Mill Creek, 106 Wn. App. 681, 698, 26 P.3d 943 (2001)
(applicable where condition required frontage improvements for drainage along adjacent
boulevard); Castle Homes &Dev., Inc. v. City of Brier, 76 Wn. App. 95, 882 P12d 1172 (1994)
(applicable where voluntary agreement required payment of $3000 per lot or provision of offsite
traffic improvements).
RCW 82.02.020 places the burden on the local government to demonstrate nexus. See
Isla Verde, 146 Wn.2d 755056; Home Builders Assn ofKitsap County v. City of Bainbridge
Island, 137 Wn. App. 338, 340 (2007). To do so, a local government "must show that the
development ... will create or exacerbate the identified public problem." Burton v. Clark
County, 91 Wn.App. 505, 521 (1998). This means that a local government must demonstrate a
nexus between the condition and the impact caused by development to legally impose project
mitigation. Nollan, 483, U.S. 837 (1987). See also R. S. Radford, Of Course a Land Use
Regulation That Fails to Advance Legitimate State Interests Results in a Regulatory Taking, 15
Fordham Envtl. L. Rev. 353, 390 (2004) (local government must demonstrate "a close casual
nexus between the burdens imposed by the regulations and the social costs that would otherwise
be imposed by the property's unregulated use.") "It is the requirement of a cause -effect nexus,
not a means -end fit, that offers real protection against the imposition of unjustified or
disproportionate burdens on individual property owners." R.S. Radford, IId. At 391.
(3) CONSTITUTIONAL CONSTRAINTS
Addressing constitutional standards, case law establishes rigorous requirements for nexus
and proportionality which have been set forth by the United States Supreme Court and elaborated
upon in Washington. See. e.g., Nollan v. Cal Coastal Comm'n, supra.; Dolan v. City of Tigard,
supra.; Benchmark Land Co. v. City of Battleground, 103 Wash. App. 721, 14 P.3d 172 (2000),
aj'd on other grounds in Benchmark Land Co. v. City of Battle Ground, 146 Wn.2d 685, 695, 49
P.3d 860 (2002); Burton v. Clark County, 91 Wn. App. 505, 520, 958 P.2d 343 (1998) (County
conditioning of approval of a three -lot short plat on the landowner's dedication of road right-of-
way constitutes unconstitutional taking). The reason for requiring the municipality to
demonstrate the impact of the development is "to bar Government from forcing some people
alone to bear public burdens which, in all fairness and justice, should be borne by the public as a
whole." Armstrong v. United States, 364 U.S. 40, 49 (1960).
I trust the foregoing is helpful. I will be in attendance on August 21, 2014 to answer any
questions. Thank you for your kind attention to these comments.
Very truly yours,
NNIS D . EYNOLDS LAW OFFICE
m
Dens D. Re ds
[90196-1]
Stafford L. Smith, Hearing Examiner
August 15, 2014
Page 5
Cc: Michel Girard (via email)
Chas Walters (via email)
Kathy Cook, Director of Dept. of Planning and Community Development (via email)
Lisa Marshall, City Attorney (via email)
DDR/cr
[90196-1]
Dennis D. Reynolds Law Office
200 Winslow Way W. Suite 380 Bainbridge Island, WA 98110
Land Use • Fisheries Law • Environmental Law • Business Law • Indian Law • Real Estate
206.780.6777 206.780.6865 fax ww.ddrlawcom
July 28, 2014
By Email (drose(a,bainbridgewa.gov) and Hand Delivered
Stafford Smith, Hearing Examiner
City of Bainbridge Island
c/o Debbie Rose, Hearing Examiner Assistant
280 Madison Avenue North
Bainbridge Island, WA 98110
Re: BGH Development, LLC (Rolling Sunrise Subdivision)
Dear Examiner Smith:
BGH Development, LLC has retained my firm to aid approval of its preliminary lot
subdivision application. The purpose of this letter is twofold: to advise you that (1) we will be
representing the Applicant in this matter, and (2) BGH Development is presently reviewing
options to respond to the Examiner's concerns set out in the Notice of Continuance dated
July 25, 2014.
l There are statutory and constitutional limits as to the ability of the City of Bainbridge
/ Island to impose off-site project mitigation. BGH Development will set these out "for the
record." Stating as much, my client is assessing possible voluntary mitigation. It intends to
coordinate with the City in this regard and present suggestions and feasibility evaluations on or
before August 15, 2014.
Thank you for your kind attention to these comments.
Very truly yours,
NYNOLDS LAW OFFICE
Dennis D. Reynolds
cc: Kathy Cook, Director (kcook(a,bainbridgewa gov)
Sean Conrad, Staff Planner (sconradAbainbridgewa.gov)
Janelle Hitch, City Engineer (jhitchCabainbridgewa.eov)
Lisa Marshall, City Attorney (lmarshallAbainbrideewa.gov)
Client
DDR/cr
[90286-11