IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

DOUGLASS PROPERTIES II, LLC, No. 53558-1-II

Appellant,

v.

CITY OF OLYMPIA, PUBLISHED OPINION

Respondent.

WORSWICK, J. — Douglass Properties II LLC (Douglass) appeals a superior court order

affirming the Olympia Hearing Examiner’s decision regarding transportation impact fees (traffic 

impact fees). That order upheld the imposition of $167,580 in traffic impact fees as a condition 

of the City of Olympia’s issuance of a building permit to construct a storage facility. Douglass

argues that the hearing examiner’s decision was erroneous because it (1) made findings of fact 

and conclusions of law without placing the burden of proof on the City to establish that the 

traffic impact fees were roughly proportionate to the impacts of Douglass’s project as required 

by Nollan v. California Coastal Commission, 483 U.S. 825, 107 S. Ct. 3141, 97 L. Ed .2d 677

(1987), and Dolan v. City of Tigard, 512 U.S. 374, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994) 

(Nollan/Dolan test),

1

and (2) failed to conclude that the City’s traffic impact fees were excessive 

and not roughly proportionate. We affirm.

 

1 Together these cases require a nexus and rough proportionality between a government’s 

demand and the effects of development when the government demands that a landowner 

relinquish a portion of his property as a condition of a land use permit.

Filed

Washington State

Court of Appeals

Division Two

February 2, 2021
No. 53558-1-II

2

FACTS

I. BACKGROUND

A. Permit Application

In 2016 and 2017, Douglass applied for building permits for a mini storage warehouse 

facility in Olympia. In accordance with the Transportation Impact Fee Rate Schedule in

Olympia Municipal Code (OMC) 15.16.040, the City calculated the traffic impact fees and 

conditioned Douglass’s permits based on those calculated fees. Douglass’s proposal included 7

buildings. Building 1 and Buildings 3 through 7 were calculated at a rate of $1.29 per square 

foot of gross floor area according to the 2016 OMC, but Building 2 was calculated at $1.33 per 

square foot of gross floor area according to the 2017 OMC.

2

 Although OMC 15.04.050(C) and 

(E) contained provisions to allow Douglass to request an independent fee analysis, Douglass 

declined to request an analysis. Douglass also declined to prepare its own independent fee 

calculation, as provided for under OMC 15.04.050(D). In 2018, Douglass paid all the impact 

fees. As to Building 2 only, Douglass paid these fees under protest and appealed the impact fee 

determination.

B. City of Olympia Hearing Examiner

In 2018, the City’s hearing examiner held a hearing to consider Douglass’s appeal. At 

the onset of the hearing, the hearing examiner stated that Douglass had the burden of proof to 

 

2 Building 2 contained 126,000 square feet, which resulted in a traffic impact fee of $167,580 

when multiplying 126,000 times $1.33. The $1.33 per square foot multiplier is based on the 

following calculation: peak trips per thousand square feet (.26) times number of trips that are 

new trips (1), times standard length compared to average trip length of 3.0 miles (“trip 

adjustment variable”) (1.7), times cost of each new trip ($2,999).
No. 53558-1-II

3

show that the City’s traffic impact fee for Building 2 was “clearly erroneous.” Clerk’s Papers 

(CP) at 58. The parties then presented evidence in the form of exhibits and witness testimony.

The OMC contains a formula to calculate a traffic impact fee, which the City employed 

to calculate the impact fees here. OMC 15.16.040 Schedule D, “Transportation Impact Fees.” 

This formula includes a number of variables. 

Douglass challenged three of these variables: the number of trips per peak hour, the 

percentage of new trips, and the trip adjustment variable. Douglass argued the traffic impact fee 

should have been modified consistent with its own calculations, notwithstanding that Douglass 

neither requested an independent impact fee calculation from the City, nor submitted his own 

independent impact fee calculation for consideration prior to issuance of the permit.

3

 Douglass 

urged the hearing examiner to either find the City’s impact fee to be clearly erroneous or, in the 

alternative, to undertake an independent fee calculation and determine a new fee that was 

consistent with Douglass’s alternative calculation. Douglass contended that a failure to adjust 

the City’s impact fee would be a violation of due process under Nollan and Dolan.

4

 

3 Douglass argued that peak trips per thousand square feet should be .17, number of trips that are 

new trips should be .75, and the standard length compared to average trip length (trip adjustment 

variable) should be 1, resulting in an impact fee of $48,178.93. Although the City’s ordinances 

presume that its own impact fee schedule calculations are valid under OMC 15.04.050(F), under 

OMC 15.04.050(C) a permit applicant can submit his own independent fee calculation prior to 

issuance of any building permit and the City may consider such independent fee calculation.

4 Nollan v. California 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). The Nollan 

and Dolan cases are landmark Fifth Amendment takings cases. “[Nollan and Dolan] held that 

the government may not condition the approval of a land-use permit on the owner’s 

relinquishment of a portion of his property unless there is a nexus and rough proportionality 

between the government’s demand and the effects of the proposed land use.” Koontz v. St. Johns 

River Water Mgmt. Dist., 570 U.S. 595, 595, 133 S. Ct. 2586, 186 L. Ed. 2d 697 (2013).
No. 53558-1-II

4

The City presented evidence from its own expert, Don Samdahl, regarding the 

methodology used by the City to calculate traffic impact fees. The City also showed that it 

formally adopted a transportation study prepared for the city, which included the formula for 

calculating traffic impact fees. The transportation study formula for calculating such fees 

included the factors required by RCW 82.02.060, including:

 The cost of public facilities necessitated by new development; 

 Adjustments to the cost for past or future payments by developers (including user fees, debt 

service payments, taxes or other fees); 

 The availability of other funding sources; 

 The costs of existing facilities improvements; 

 The methods by which existing facilities were financed; 

 Credit for the value of any dedication of land to facilities identified in the capital facilities 

plan and required as a condition of approval; 

 Adjustments for unusual circumstances; and 

 Consideration of studies submitted by the developer.

CP at 293. 

Following the hearing, the hearing examiner denied Douglass’s appeal, deciding that the 

impact fee was correctly calculated in accordance with the ordinance. The hearing examiner 

concluded that it did not have the authority to overrule City of Olympia v. Drebick,

5 which the 

hearing examiner concluded was the controlling authority. The hearing examiner reaffirmed that

Douglass had the burden of proof at the hearing, and that the three challenged variables were not 

clearly erroneous. The hearing examiner further concluded that the City’s actions were not 

clearly erroneous when the City did not extemporaneously conduct an independent fee 

 

5

156 Wn.2d 289, 293, 126 P.3d 802 (2006). Our Supreme Court in Drebick held that impact 

fees under RCW 82.02 do not require an individualized assessment of a development’s direct 

impact.
No. 53558-1-II

5

assessment, and that a hearing examiner had no authority to conduct or consider an independent 

fee assessment for the first time on appeal.

C. Judicial Review 

Douglass filed an appeal to the superior court for judicial review under the Land Use 

Petition Act, RCW 36.70C (LUPA). The superior court affirmed the decision of the hearing 

examiner. Douglass now appeals to this court.

ANALYSIS

Douglass argues that the City’s traffic impact fee is subject to Fifth Amendment scrutiny 

because it amounts to a regulatory taking of his property. Douglass argues that because the fee is 

a regulatory taking, the City had the burden to prove to the hearing examiner that the fees had a 

nexus and were roughly proportional, as required by Nollan and Dolan. We hold that the 

Nollan/Dolan test does not apply to the traffic impact fees, because such fees are legislatively 

prescribed generally applicable fees outside the scope of Koontz v. St. Johns River Water 

Management District, 570 U.S. 595, 595, 133 S. Ct. 2586, 186 L. Ed. 2d 697 (2013), and that 

Drebick still controls. Thus, we hold that the hearing examiner did not err when it ruled that 

Douglass had the burden of proof at the hearing and that Douglass failed to meet that burden. 

We further hold that the hearing examiner’s conclusions were not erroneous. 

I. LEGAL PRINCIPLES AND STANDARDS OF REVIEW

A. Standards of Review

We review a LUPA action under chapter 36.70C RCW. Ellensburg Cement Products, 

Inc. v. Kittitas County, 179 Wn.2d 737, 742, 317 P.3d 1037 (2014). We stand in the same 

position as the superior court, and review the record that was before the hearing examiner. 
No. 53558-1-II

6

Ellensburg Cement Products, 179 Wn.2d at 742. The party seeking relief has the burden of 

establishing any of the following standards:

(a) The body or officer that made the land use decision engaged in unlawful 

procedure or failed to follow a prescribed process, unless the error was harmless;

(b) The land use decision is an erroneous interpretation of the law, after 

allowing for such deference as is due the construction of a law by a local jurisdiction 

with expertise;

(c) The land use decision is not supported by evidence that is substantial 

when viewed in light of the whole record before the court;

(d) The land use decision is a clearly erroneous application of the law to the 

facts;

(e) The land use decision is outside the authority or jurisdiction of the body 

or officer making the decision; or

(f) The land use decision violates the constitutional rights of the party 

seeking relief.

RCW 36.70C.130(1). 

Standards (a), (b), (c), (d), and (f) are at issue in this case. Standards (a), (b), (e), and (f)

contain questions of law that we review de novo. Phoenix Dev., Inc. v. City of Woodinville, 171 

Wn.2d 820, 828-829, 256 P.3d 1150 (2011).

For standard (c), we review all facts and inferences in a light most favorable to the party 

that prevailed in the highest fact-finding forum to decide challenges to the sufficiency of the 

evidence, and then determine whether sufficient evidence exists in the record to persuade a 

reasonable person of the truth asserted by the alleged facts. Phoenix, 171 Wn.2d at 828-829.

For standard (d), only when we are left with “the definite and firm conviction that a 

mistake has been committed,” do we decide an application of law to the facts is clearly 

erroneous. Phoenix, 171 Wn.2d at 828-829.

We adhere to “the fundamental principle that if a case can be decided on 

nonconstitutional grounds, an appellate court should refrain from deciding constitutional issues.” 
No. 53558-1-II

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Isla Verde Int’l Holdings, Inc. v. City of Camas, 146 Wn.2d 740, 752, 49 P.3d 867 (2002),

abrogated on other grounds by Yim v. City of Seattle, 194 Wn.2d 682, 451 P.3d 694 (2019).

B. State Law

RCW 82.02.050 authorizes the imposition of impact fees. The statute limits how 

municipalities can implement impact fees, stating that such 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.

RCW 82.02.050(4).

An “impact fee” is 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. “Impact fee” does not include a reasonable permit or application fee.

RCW 82.02.090(3).

“‘Proportionate share’ means that portion of the cost of public facility improvements that 

are reasonably related to the service demands and needs of new development.” RCW 

82.02.090(6).

Local ordinances imposing impact fees under RCW 82.02.050 must include a schedule of 

impact fees for each type of development activity subject to the fees. RCW 82.02.060(1). The 

schedule must specify “the amount of the impact fee to be imposed for each type of system 

improvement” and must be “based upon a formula or other method of calculating such impact 
No. 53558-1-II

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fees.” RCW 82.02.060(1). The formula or method of determining “proportionate share” in a 

schedule of impact fees must, at a minimum, include:

(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 made or reasonably anticipated to be made by new development to pay 

for particular system improvements in the form of user fees, debt service payments, 

taxes, or other payments earmarked for or proratable to the particular system 

improvement;

(c) The availability of other means of funding public facility improvements;

(d) The cost of existing public facilities improvements; and

(e) The methods by which public facilities improvements were financed.

RCW 82.02.060(1). 

In addition to an impact fee schedule, the local ordinance must “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.” 

RCW 82.02.060(6).

Local governments are required to provide an administrative appeals process, which may 

follow either the underlying development approval process or a process separately established by 

the local government. RCW 82.02.070(5). Impact fees in the administrative appeal process can 

be modified under “principles of fairness.” RCW 82.02.070(5).

Title 82 RCW contemplates other types of impact fees that may be authorized under 

alternative statutes which are necessary as a direct result of the proposed development (in 

contrast to the traffic impact fees in the instant case) and carves out an exception to the 

preemption section under RCW 82.02.020:

[T]his section does not preclude dedications of land or easements within 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 
No. 53558-1-II

9

proposed development or plat to which the dedication of land or easement is to 

apply.

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.

RCW 82.02.020 (emphasis added).

C. Local Ordinance

The City enacted OMC 15.04.040 to collect transportation impact fees under RCW 

82.02.050. Schedule D, in OMC 15.16.040 includes the transportation impact fees at issue here. 

The fees in Schedule D, are generated by the transportation study formula, and the fees are 

outlined in the “2009 Transportation Impact Fee Collection Rate Document.” OMC 

15.08.050(A). Schedule D is reviewed annually to consider adjustments “to account for system 

improvement cost increases due to increased costs of labor, construction materials and real 

property.” OMC 15.08.050(B). 

II. LEGISLATIVELY IMPOSED GENERALLY APPLICABLE FEE

Douglass argues that the City’s fee scheme is unlawful because it fails to comply with the 

proportionality requirements under state and federal law, specifically RCW 82.02.050(4) and 

Nollan/Dolan scrutiny by extension from Koontz v. St. Johns River Water Management District, 

570 U.S. 595. Douglass also argues that Drebick is no longer controlling law. We disagree.

A. Discussion

Douglass makes several arguments based on an underlying premise that the Nollan/Dolan 

test applies to the traffic impact fees assessed here. Specifically, Douglass argues that after 

Koontz, Drebick no longer controls. We disagree.
No. 53558-1-II

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The takings clause of the Fifth Amendment provides, “[N]or shall private property be 

taken for public use, without just compensation.” Similarly, article I, section 16 provides, “No 

private property shall be taken or damaged for public or private use without just compensation 

having been first made.” WASH. CONST. art. I, § 16. 

In the cases of Nollan and Dolan, the Supreme Court relied on the Fifth Amendment to 

hold that the government cannot condition approval of a land use permit on the conveyance of 

real property unless there is a nexus and rough proportionality between the government’s 

demand and the effects of the proposed land use. Nollan, 483 U.S. at 837; Dolan, 512 U.S. at 

386. The case of Koontz v. St. Johns River Water Management District., extended the 

Nollan/Dolan requirement to certain “monetary exactions.” 570 U.S. at 612. The nexus test 

requires conditions of development to be necessary to mitigate a specific adverse impact of a 

proposal. Nollan, 483 U.S. at 837. The rough proportionality test limits the extent of required 

mitigation measures to those that are roughly proportional to the impact they are designed to 

mitigate. Dolan, 512 U.S. at 391. Olympic Stewardship Found. v. State Env’t & Land Use 

Hearings Off. through W. Wash. Growth Mgmt. Hearings Bd., 199 Wn. App. 668, 747, 399 P.3d 

562 (2017). Taxes and user fees are not “takings” subject to Fifth Amendment scrutiny. Koontz, 

570 U.S. at 615 (quoting Brown v. Legal Found. of Washington, 538 U.S. 216, 243, n. 2, 123 S. 

Ct. 1406, 155 L. Ed. 2d 376 (2003)) (Scalia, J., dissenting).

As stated above, Koontz extended the Nollan/Dolan rule to certain “monetary exactions.” 

In Koontz, the government refused to issue water permits to a land owner unless the landowner 

either deeded to the government an easement over land not being developed, or paid for 

improvements to noncontiguous government owned land. Koontz, 570 U.S. at 601-602. This fee 
No. 53558-1-II

11

scheme was “imposed ad hoc,” and was “not . . . generally applicable” to permit applicants. 

Koontz, 570 U.S. at 628 (Kagan, J., dissenting). In applying the Nollan/Dolan test to this

scheme, the court stressed that it was not expanding Nollan and Dolan much beyond its narrow 

confines, stating:

[Koontz’s] claim rests on the . . . limited proposition that when the government 

commands the relinquishment of funds linked to a specific, identifiable property 

interest such as a bank account or parcel of real property, a “per se [takings] 

approach” is the proper mode of analysis under the Court’s precedent.

Koontz, 570 U.S. at 614 (emphasis added) (quoting Brown, 538 U.S. at 235).

Prior to Koontz, courts across the country generally held that the Nollan/Dolan test was 

limited to adjudicative and ad hoc exactions, and did not apply to more broadly applicable 

legislative exactions.6 Washington weighed in on this issue in the case of City of Olympia v. 

Drebick, 156 Wn.2d 289.

In Drebick, the hearing examiner ruled that a city’s impact fee did not comply with RCW 

82.02.050 because it failed to require an individualized assessment of a new development’s 

direct impact on each improvement planned in a service area. 156 Wn.2d at 309. Our Supreme 

Court reversed. 156 Wn.2d at 309. The appellant in Drebick sought an independent fee 

calculation adjustment before it challenged whether the City’s ordinance complied with state 

law. 156 Wn.2d at 293. The Court explained that because GMA impact fees were legislatively 

prescribed development fees, Nollan/Dolan was not applicable, noting the distinctions from 

 

6 Michael Castle Miller, The New Per Se Takings Rule: Koontz’s Implicit Revolution of the 

Regulatory State, 63 AM. U.L. REV. 919, 947 (2014).
No. 53558-1-II

12

other jurisdictions where Fifth Amendment scrutiny did apply but only to fees that were direct 

mitigation and in lieu of possessory exactions. Drebick, 156 Wn.2d. at 302.

Subsequent to Koontz, a number of courts have considered the issue and continue to hold 

that the Nollan/Dolan test does not apply to generally applicable legislative decisions.7 

Although the decision in Drebick was based on statutory construction, the distinction 

observed between “direct mitigation fees” and those “legislative prescribed development fees” 

from the GMA is instructive. 156 Wn.2d at 303. The same important factual distinction that our 

Supreme Court explained in Drebick exists here between the traffic impact fees in the instant 

case and those found in Koontz. The fees in Koontz were “not . . . generally applicable” to all 

permit applicants. 570 U.S. at 628 (Kagan, J., dissenting). Additionally, the fee imposed in 

Koontz was in lieu of a conveyance of a conservation easement. 570 U.S. at 617. Although 

Koontz expanded the scope of takings that require Nollan/Dolan scrutiny to include “monetary 

exactions,” it did not expand that scope to include legislatively prescribed development fees like 

those at issue here. Moreover, the language in Koontz clearly intended to limit its application, by

explaining that the funds there were linked to a specific, identifiable property interest. We 

therefore conclude that Koontz does not invalidate Drebick’s holding with respect to legislatively 

imposed generally applicable fees because these fees are outside the scope of Koontz.

Douglass also relies on Honesty in Environmental Analysis and Legislation (HEAL) v. 

Central Puget Sound Growth Management Hearings Board, 96 Wn. App. 522, 533, 979, P.2d 

 

7

See, e.g., Am. Furniture Warehouse Co. v. Town of Gilbert, 245 Ariz. 156, 163, 425 P.3d 1099 

(Ariz. Ct. App. 2018); Better Hous. for Long Beach v. Newsom, 452 F. Supp. 3d 921, 932 (C.D. 

Cal. 2020); Dabbs v. Anne Arundel Cnty., 458 Md. 331, 357, 182 A.3d 798 (2018). 
No. 53558-1-II

13

864 (1999), a pre-Koontz case, to argue that Nollan/Dolan scrutiny applies to the City’s traffic 

impact fees. In HEAL, Division One of this court explained that Nollan/Dolan scrutiny is 

required under the Growth Management Act, 36.70A RCW, for conditions other than an outright 

dedication of land, but that case did not specifically address impact fees. HEAL, 96 Wn. App. at 

534. HEAL only concerned itself with the denial of a project based on less than “only the best 

available science [that] could provide its policy-makers with facts supporting those policies and 

regulations which, when applied to an application, will assure that the nexus and rough 

proportionality tests are met.” 96 Wn. App. at 534. HEAL’s holding is immaterial to the instant 

case involving monetary exactions imposed based on a statutory formula. 

We hold that Drebick is still good law, and that Nollan/Dolan scrutiny does not apply to 

the legislatively prescribed development traffic impact fees at issue in this case subsequent to 

Koontz. Thus, the hearing examiner did not err by concluding that the Nollan/Dolan rule did not 

apply.

III. HEARING EXAMINER RULINGS

A. Imposing Burden of Proof on Appellant Not Clearly Erroneous

Douglass argues that the hearing examiner’s ruling was clearly erroneous when it ruled 

that Douglass had the burden of proof under the OMC. Douglass contends that the City, as the 

governmental agency attempting to impose a fee, had a burden to show that the traffic impact 

fees met the Nollan/Dolan test. The City argues that Douglass had the burden of proof as 

prescribed by the City ordinance which is based on LUPA. Because the Nollan/Dolan test does 

not apply to legislatively prescribed impact fees, and because this is a LUPA appeal where the 
No. 53558-1-II

14

City’s ordinance was explicit in giving the challenger the burden of proof, we agree with the 

City.

Douglass relies on Isla Verde International Holdings v. City of Camas, 146 Wn.2d at 763 

n.16, to argue that the City bears the burden of proof to show adequate proportionality under 

RCW 82.02.050(4). But Isla Verde International Holdings was a case concerning RCW 

82.02.020, not RCW 82.02.050. 146 Wn.2d at 753-54; see Drebick, 156 Wn.2d at 302 

(distinguishing direct mitigation fees like those referred to in RCW 82.02.020 from legislatively 

prescribed development fees). The court in Isla Verde International Holdings construed the 

burden of proof from the plain language of that wholly separate statute, which contains language 

that does not appear in the provision at issue here. 146 Wn.2d at 761.8 Moreover, the 

development fees in Isla Verde International Holdings were not legislatively imposed generally 

applicable fees like those imposed here. The fees in Isla Verde International Holdings were 

statutory exceptions to the preclusive effect of RCW 82.02.020. 46 Wn.2d at 755. “[T]he 

burden of establishing a statutory exception is on the party claiming the exception.” Home 

 

8 RCW 82.02.020 provides:

However, this section does not preclude dedications of land or easements within 

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.

. . . .

(3) . . . .

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.

(Emphasis added).
No. 53558-1-II

15

Builders Ass’n of Kitsap Cnty. v. City of Bainbridge Island, 137 Wn. App. 338, 347, 153 P.3d 

231 (2007) (citing Isla Verde, 146 Wn.2d at 759).

As discussed above, Nollan/Dolan scrutiny does not apply to legislatively derived traffic 

impact fees such as the traffic impact fee in this case, so Douglass’s argument fails. Because the 

fees at issue here are not subject to the Nollan/Dolan test, the City did not have a burden to show 

a nexus or proportionality. Instead, the hearing examiner correctly observed the OMC which 

states, “The examiner shall only grant relief requested by an appellant upon finding that the 

appellant has established that . . . ,” and then goes on to describe the means in which an appellant 

can prevail. OMC 18.75.040(F). The language clearly requires the appellant has to “establish” 

the factual basis for the findings of fact and conclusions of law, thus bearing the burden of proof.

OMC 18.75.040(F). 

We hold that the hearing examiner’s ruling that Douglass had the burden of proof under 

the OMC was not clearly erroneous.

B. Validity of Fee Not Clearly Erroneous

Douglass argues that the hearing examiner’s ruling regarding the traffic impact fee was 

clearly erroneous because the fees were excessive and not roughly proportionate. Specifically, 

Douglass argues that three of the variables the City used in its calculation caused the fees to be 

excessive and not proportional. The City contends that Douglass is attempting to “rewrite the 

City’s ordinance without complying with the procedural requirements that allow consideration of 

alternative fee calculations.” Br. of Resp’t at 33. The City argues that its fees are 

“presumptively valid enactments of the City’s legislative body,” and that they are rationally 

based on the same methodology upheld in Drebick. Br. of Resp’t at 40. We hold that the 
No. 53558-1-II

16

hearing examiner’s decision to uphold the fee calculation based on the requisite City ordinance

was not clearly erroneous.

The hearing examiner rejected all of Douglass’s challenges to the City’s fee calculation 

that were based on its own independent information unique to its own project. The hearing 

examiner found that each of the three challenged variables was supported by the widely accepted 

trip generation manual, which was the same manual from Drebick, according to Samdahl’s 

testimony at the hearing. The hearing examiner reasoned that each of the City’s decisions to 

adhere to Schedule D calculations was not a clearly erroneous application of the law to the facts.

This is the standard of review under OMC 18.75.040(F)(4). OMC 15.04.050 required Douglass 

to submit its independent fee calculation before obtaining its permit, but it failed to do so. If an 

independent fee calculation under OMC 15.04.050 is not submitted timely to the City, the City is 

allowed to collect impact fees based on the schedules in Chapter 15.16 OMC. We hold that the 

hearing examiner’s decision to uphold the City’s fee calculation based on the requisite City 

ordinance was not clearly erroneous.

ATTORNEY FEES

The City argues that it is entitled to an award of reasonable attorney fees and costs. 

Because the City is the prevailing party, we agree.

In a LUPA appeal, the prevailing party on appeal is entitled to an award of its reasonable 

attorney fees and costs. RCW 4.84.370(1). Under the LUPA statute, the prevailing party is the 

party that prevailed or has substantially prevailed before the county, city, or town, and has 

prevailed or substantially prevailed before this court or the Supreme Court, and has prevailed or 

substantially prevailed in all subsequent judicial proceedings. RCW 4.84.370(1)(a), (b). The 
No. 53558-1-II

17

City prevailed before the hearing examiner, at the superior court, and on this appeal, and is thus 

entitled to an award of its attorney fees under RCW 4.84.370 and RAP 18.1

CONCLUSION

In conclusion, we hold that the Nollan/Dolan test does not apply to the traffic impact fees

in this case, because such fees are legislatively prescribed generally applicable fees outside the 

scope of Koontz, and that Drebick still controls. Thus, we hold that the hearing examiner did not 

err when it ruled that Douglass had the burden of proof at the hearing and that Douglass failed to 

meet that burden. We further hold that the hearing examiner’s conclusions were not erroneous. 

Finally, we hold that the City is entitled to its reasonable attorney fees. We affirm.

______________________________

Worswick, P.J.

We concur:

_______________________________

Glasgow, J.

_______________________________

Cruser, J.