                                                                                                  FILED
                                                                                           COURT Or' APPEALS
                                                                                                D!V ISIO I TI

                                                                                          2D13 S P 24     VN 9: 29

                                                                                            h                     TON

                                                                                          By
                                                                                                  DEP     Y `..



    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           DIVISION II

SSHI   LLC,     a   Delaware   limited     liability                     No. 43300 1 II
                                                                                   - -
corporation, dba DR Horton,

                               Appellant,

       V.




CITY OF OLYMPIA, a Washington municipal                           UNPUBLISHED OPINION
corporation,

                               Respondent,

OLYMPIA SAFE STREETS CAMPAIGN, a
Washington nonprofit corporation,

                               Intervenor.




       JOHANSON, J. —Developer OR Horton appeals from the trial court's order dismissing

DR Horton's land use petition that challenged the city of Olympia's City) denial of DR
                                                                     (

Horton's master plan application; it also appeals the trial court's final judgment dismissing all of

DR Horton's claims against the City. DR Horton had planned to build the densely populated
Trillium   neighborhood village    in   Olympia. The Olympia City Council (Council) denied the

Trillium master plan because the master plan failed to comply with the City's transit

requirements; the Council also concluded that the administrative record was inadequate to
determine whether the master      plan   was   consistent with   City policies involving school sites   and
No. 43300 1 II
          - -




capacity as well as pedestrian and bicycle connectivity. DR Horton appeals the trial court order

affirming the Council's decision, arguing that the Council erred in (1)denying the Trillium

master plan due to the plan's failure to satisfy transit requirements, 2)
                                                                       ( reserving for the future its

decision regarding placement of a school site, and (3)determining that DR Horton provided

inadequate evidence to demonstrate that the Trillium master plan was consistent with the City's

pedestrian   and   bicycle connectivity requirements. Intervenor Olympia Safe Streets Campaign

OSSC) argues that we should affirm the Council's determination that Trillium did not satisfy

connectivity requirements.

       We conclude that DR Horton does not demonstrate that the Council erred. Accordingly,

we affirm the Council's administrative denial of DR Horton's Master Plan application and, in

turn,the trial court's dismissal of DR Horton's land   use   petition. We also award attorney fees to

the City and OSSC as prevailing parties on appeal.

                                              FACTS


        Trillium is DR Horton's proposed 80 acre Olympia development that would include
                                            -

approximately 300 single -family homes and 200 multifamily units. In 1994, the City, under its

municipal code and comprehensive plan, zoned and designated the Trillium site as a

Neighborhood Village." Administrative Record (AR) at               5844 46.
                                                                        -     Builders must develop

neighborhood villages as " master planned developments" and comply with a variety of

regulations. AR at 5845.

        In 2010, the City planning staff recommended approval of the Trillium proposal to the

hearing examiner.      At hearings held in June and July 2010, the hearing examiner considered

evidence from individuals, including representatives from OSSC, that the Trillium proposal


                                                  2
No. 43300 1 II
          - -




failed to comply with the City code and comprehensive plan because of outsized blocks, lack of

bicycle pedestrian lanes, inadequate local schools, and the absence of required public transit.
        /

        The hearing examiner asked Intercity Transit for information regarding existing and

anticipated bus routes that would serve Trillium. Intercity Transit's planning manager confirmed

that there was no existing transit service to the Trillium site, that the nearest existing stop was at

least .3 8 miles away, and that it did not anticipate adding fixed route service to Trillium until the

City extended Log Cabin Road, an event without a timetable.

        In October 2010, the hearing examiner recommended that the Council deny the Trillium

master plan based on its failure to satisfy City code transit requirements and its failure to comply

with comprehensive plan policies regarding public transit, school capacity, block size and street

spacing,   and   bicycle   and   pedestrian connectivity. The hearing examiner found that transit

service would " each Trillium only at some indefinite and undetermined point in the future,"
              r                                                                            and

he acknowledged that code requirements and comprehensive plan policies could be satisfied if

regular bus service to Trillium were certain at some stage in the development's growth. AR at

5950. But he ultimately found that the master plan did not meet the transit requirement because

the evidence demonstrated that such service depended on "unpredictable contingencies." AR at

5952.


        In November 2010, DR Horton and the City planning department filed reconsideration

motions    with the    hearing     examiner.   In April 2011, the hearing examiner issued his

recommendation, determining that the Trillium master plan was no longer inconsistent with the

City code's connectivity requirements. He also rescinded his previous findings and conclusions

concerning school capacity after hearing testimony regarding an enrollment decrease in Olympia


                                                    3
No. 43300 1 II
          - -




elementary    schools.    Regardless, he again recommended denying the Trillium master plan

because of its failure to comply with public transit requirements.

       In June and July 2011, the Council considered the hearing examiner's recommendations.

The Council, in passing Ordinance No. 6762, reviewed the parties' written submissions and

heard several oral presentations before voting to adopt the hearing examiner's recommended

denial of the Trillium master      plan. The Council noted that the high-
                                                                        density neighborhood

envisioned for a neighborhood village relied on public transit availability

       The Council adopted all of the hearing examiner's findings and almost all of his
conclusions   regarding bicycle   and   pedestrian connectivity. After performing its own review,

however, the Council concluded that the record was inadequate to determine that Trillium's

master plan proposal satisfied neighborhood village connectivity requirements under the

municipal    code   or   comprehensive plan. The Council also found the record inadequate to

determine whether Trillium was consistent with the comprehensive plan involving school sites.

       In August 2011, DR Horton filed a land use petition and complaint for damages against

the City, challenging the Council's adoption of Ordinance No. 6762. That same month, OSSC

petitioned the trial court to intervene as a party plaintiff on the connectivity issue, and, in

September, the trial court granted OSSC intervenor status based on the parties' stipulation. In

March and June 2012, the trial court issued orders dismissing all claims related to DR Horton's

land use petition. DR Horton now appeals the trial court's March and June 2012 orders.




                                                   0
No. 43300 1 II
          - -




                                                 ANALYSIS


            I. DENIAL OF MASTER PLAN BASED ON FIXED-
                                                   ROUTE, PUBLIC BUS SERVICE

        DR Horton first claims that the Council erred in denying the Trillium master plan because

the Council based its decision on unwritten and undefined requirements that Intercity Transit

provide fixed    route transit service to Trillium.       Specifically, DR Horton argues that (1)the

Council misapplied its zoning requirements because the City code requires nothing more than a

sheltered transit stop, 2) City lacks public transit concurrency standards, 3) Council has
                        ( the                                               ( the

never required fixed bus service as a condition for master plan approval, 4) Council erred in
                     -                                                    ( the

evaluating the Trillium master :plan for consistency with the comprehensive plan, ( the
                                                                                  5)

Council's denial was unlawfully vague and impossible to meet, and (6)the Council's denial

amounted to an unconstitutional taking of DR Horton's property and deprived DR Horton of

substantive due process.         Because the Council is entitled to considerable deference in its


construction of its ordinances, we hold that DR Horton failed to demonstrate that the Council

erred in applying its ordinances and denying the Trillium master plan.

                                A. Standards of Review and Rules of Law


                                       1. Land Use Petition Actions


        Under the Land Use Petition Act' ( UPA), stand in the same position as the trial
                                         L     we
court in   reviewing    a   land use decision,   Wenatchee Sportsmen Ass'n v. Chelan County, 141

Wn. d 169, 176, 4 P. d 123 (2000).A LUPA petitioner must demonstrate error under one of six
  2                3

standards for relief-




1
    Ch. 36. 0C RCW.
          7




                                                     W1
No. 43300-
    11-  1




       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) land use decision violates the constitutional rights of the party seeking
        The
       relief.


RCW    36. 0C. The standards described in subsections ( a), ( ( (f)
       130(
          1).
          7                                               b), and
                                                             e),   present

questions of law that we review de novo. Phoenix Dev.,Inc. v. City of Woodinville, 171 Wn. d
                                                                                         2

820, 828, 256 P. d 1150 (2011).The substantial evidence standard in subsection (c)
               3                                                                  requires a

sufficient quantum of evidence"in the record to persuade a reasonable person that the declared

premise is true when viewed in light of the whole record, after drawing inferences from the

evidence in a light most favorable to the decision by the highest forum exercising fact -finding

authority. Phoenix Dev.,Inc., Wn. d at 831. And under subsection (d),
                            171 2                                  a finding is clearly

erroneous when, although there is evidence to support it,we are left with a definite and firm

conviction that a mistake has been committed. Phoenix Dev.,
                                                          Inc.,
                                                              171 Wn. d at 829.
                                                                    2

                                   2. Reviewing Municipal Ordinances

       We construe municipal ordinances according to statutory construction rules. Ford Motor

Co. v. City of Seattle, Exec. Servs. Dep't, Wn. d 32, 41, 156 P. d 185 (2007),
                                          160 2                3             cent. denied,

552 U. . 1180 (2008).Where a statute is clear on its face, we derive its plain meaning from the
     S

statute's language alone. Ford Motor Co.,
                                        160 Wn. d at 41. We perform statutory construction
                                              2

to effect the   legislative   intent and purpose in   creating   the statute, Woods   v.   Kittitas   County, 162
No.43300 1 II
         - -




Wn. d 597, 607, 174 P. d 25 (2007),
  2                  3            and if possible, avoid unjust and absurd consequences.

Crown Zellerbach    Corp. v. Dept of Labor & Indus.,98 Wn. d 102, 107, 653 P. d 626 (1982).
                                                         2                  2

We also read the statute as a whole and harmonize statutory provisions, to the extent possible, to
                                                            .

ensure proper construction of every provision and a unified statutory scheme. City Wenatchee

v. Owens, 145 Wn. App. 196, 205, 185 P. d 1218 (2008),
                                      3              review denied, 165 Wn. d 1021
                                                                          2

2009).

       Statutory construction is a question of law that we review de novo. Ford Motor Co.,
                                                                                         160

Wn. d at 41. When construing-an ordinance, however, a "`
  2                                                    reviewing court gives considerable

deference to the construction of" challenged ordinance "`
                                 the                    by those officials charged with its

enforcement. "'   Ford Motor Co., Wn. d at 42 (quoting Gen. Motors Corp. v. City ofSeattle,
                                160 2

107 Wn. App. 42, 57, 25 P. d 1022 (2001)). reviewing LUPA decisions, we review the "final
                         3              In

determination by a local jurisdiction's body or officer with the highest level of authority to make

the determination.      RCW 36. 0C. See Phoenix Dev., Inc., 171 Wn. d at 837 38
                            020(
                               2);
                               7                                  2          -

 Although the City staff concluded that the proposals complied with the comprehensive plan, it

is the City's final decision that controls our review. ").

                            B. Misapplication of Zoning Requirements

       DR Horton asserts that the Council misapplied its own zoning requirements by mandating

fixed route transit service when the City code requires nothing more than a sheltered transit stop

site. We disagree and defer to the Council's reasonable construction of its zoning ordinances and

comprehensive plan, which requires neighborhood villages to offer public transportation service.

        We review de novo the Council's land use decision based on allegedly erroneous

interpretations of law under RCW 36. 0C.Phoenix Dev.,Inc., Wn. d at 828; but
                                 b), 171
                                 130(
                                    1)(
                                    7                        2


                                                   7
No. 43300 1 II
          - -



under this statute, we allow "
                             for such deference as is due the construction of a law by a local

jurisdiction with expertise,"
                            here the Council. See RCW 36. 0C.
                                                      b).
                                                      130(
                                                         1)(
                                                         7

       The City code expressly requires "a sheltered transit stop" approved by Intercity Transit

in each    neighborhood village     center.   Olympia Municipal Code (OMC) 18. 5.
                                                                           1),
                                                                           050(
                                                                              C)(
                                                                              0  4).

The City code also requires that neighborhood village centers be located along collector streets

to make them readily accessible for mass transit."OMC 18. 5.
                                                      6)(
                                                      050(
                                                         b).
                                                         C)(
                                                         0

          Both the City code and comprehensive plan purport to call for actual transit service to

serve the sheltered transit stop. The City code expressly states the purposes of a neighborhood

village zoning district, and actual public transportation routes would further these purposes,

whereas sheltered transit stops without transit service would not. Neighborhood village zoning

districts are intended, for example:

          1.  To enable development of integrated, mixed use communities, containing a
          variety of housing types arranged around a village center, which provide a
          pleasant living, shopping, and working environment; a sense of community; and a
          balance of compatible retail, office, residential, recreational, and public uses....
          2.   To enable a land use pattern which will reduce dependence on auto use,
          especially drive alone vehicle use during morning and evening commute hours.
                           -
          3. To enable the design of new development in a manner which will ensure the
          safe and efficient movement of goods and people.
          4. To require direct, convenient pedestrian, bicycle, and vehicular access between
          residences in the development and the village center, in order to facilitate
                                               -
          pedestrian and bicycle travel and reduce the number and length of automobile
          trips.
          5.   To require sufficient housing density to enable cost -effective extension of
          utilities, services, and streets; frequent transit service; and to help sustain
          neighborhood businesses.
          6. To enable many of the community's residents to live within one -fourth ( 4)
                                                                                    1/
          mile of a grocery store and transit stop.

OMC       020.
          18. 5.
            0             Based on these purposes, the City aspires to reduce automobile traffic

congestion     in its   neighborhood villages by promoting pedestrian, bicycle, and "frequent   transit
No. 43300 1 II
          - -



service."See OMC 18. 5. A sheltered transit stop, alone, without transit service or any
                 020(
                    5
                    0 ).

planned transit service at some stage in the development's growth, would appear inconsistent

with these stated purposes; and, enabling residents to live within a quarter mile of the transit
                                                                             -

stop, without an attached transit route, would be nonsensical.

           Moreover, the City's comprehensive plan calls for new development projects to be

designed to "allow people to get around easily by foot, bicycle, bus, or car," neighborhood
                                                                             and

villages should encourage "walking, biking and use of mass transit."Comprehensive Plari ch. 1

at   18.    The comprehensive plan lists several "Essential Neighborhood Characteristics" for

neighborhood villages demonstrating the City's emphasis on public transit in new developments:

                  Narrow, tree lined
                                -      streets ...   to make walking, bicycling, and travel by
                  transit easy and interesting;
                  A coordinated system of open space, parks and trails, with a neighborhood
                  park within walking distance or a short transit ride of all residences;

                  Neighborhood centers within walking distance or a short transit ride of
                  most residences;

                  Sufficient housing densities to enable frequent transit service and sustain
                  neighborhood businesses.

Comprehensive       Plan ch. 1 at 18 19.
                                     -        Also, each neighborhood village should have housing,

shopping,jobs, and transit in close proximity to one another. Comprehensive Plan ch. 1 at 19.

           The City's comprehensive plan further reflects the City's desire to "enable less reliance

on automobiles"and "[ educe dependence on auto use."Comprehensive Plan ch. 1 at 8; ch. 6 at
                   r]

5.   It outlines policies designed to reduce automobile reliance, many of which involve public

transportation. One expressly states that the City desires its neighborhood villages to "make

mass transit more viable."Comprehensive Plan ch. 1 at 8 (LU 3. ).The City must also work
                                                             3



                                                      E
No. 43300 1 II
          - -




with Intercity Transit to assure that "
                                      street standards, land uses, and building placement support

the existing or planned [transit] services and facilities along identified routes"and "[
                                                                                      p] an
                                                                                         rovide

appropriate level of reliable, effective public transportation options commensurate with the

region's evolving needs." Comprehensive Plan ch. 6 at 11 - 2 ( 1.1, T 1.5). Finally, under
                                                         1 T 2         2

the comprehensive plan, New residential subdivisions, planned residential developments, and
                        "

urban villages shall provide for efficient circulation patterns for public transportation. Intercity

Transit should be consulted to assure that new development appropriately accommodates transit.

use."Comprehensive Plan ch. 6 at 25 (T 3.2).
                                        3

       Considering these policies, both the hearing examiner and the Council concluded that the

City code requires actual bus service to serve the proposed Trillium neighborhood village, rather

than merely a sheltered transit stop without transit service. The Council followed the hearing

examiner, who reasoned:

       Without service, a transit stop would serve only as a sheltered seating area for
       pedestrians in the village green. If that were its purpose, the ordinance would
       have required that pedestrian amenity; not a transit stop. Its requirement of a
       transit stop means a stop that will in fact allow catching the bus.

AR at 5950.


       A policy requiring a sheltered stop rather than actual bus service appears inconsistent

with the comprehensive plan advocating mass transit, transit routes, and public transportation, as

well as the City code. Accordingly, we defer to the Council and affirm its interpretation of its

comprehensive plan and City code, which effectuate the City's goals and policies encouraging

actual public transportation. The Council did not err in denying the Trillium master plan.




                                                 10
No. 43300 1 II
          - -




                                  C. Transit Concurrency Standards

       DR Horton next argues that the City lacked public transit concurrency standards to

support its denial of the Trillium master plan. DR Horton does not demonstrate error because the

City had no obligation to create transit concurrency requirements.

       Concurrency is the concept that an adequate level of service should be available

concurrently with   the   development's impacts        or   within   a   reasonable time thereafter. Whatcom


County Fire Dist. No. 21 v. Whatcom County, 171 Wn. d 421, 428, 256 P. d 295 (2011).Except
                                                  2                  3

for transportation concurrency, whether to adopt concurrency requirements is generally left to

the planning authority's discretion. Whatcom County Fire Dist. No. 21, 171 Wn. d at 428.
                                                                             2

       The City has adopted transportation concurrency standards. ch. 15. 0 OMC. It has not,
                                                                        2

however, adopted transit concurrency standards. DR Horton contends that without an adopted

transit concurrency standard, the City lacks authority to impose transit service requirements. DR

Horton, however, confuses neighborhood village master plan standards with concurrency

regulations. The City has       no   obligation   to   establish transit concurrency      requirements.   See


Whatcom   County    Fire Dist. No.    21, 171 Wn. d
                                                2            at 428.      Ultimately, by law the City enjoys

discretion in   determining   whether it wants to       adopt   such     requirements. See Whatcom County

Fire Dist. No. 21, 171 Wn. d at 428. Thus, DR Horton's concurrency argument fails.
                         2

                              D. History of Requiring Fixed Bus Service
                                                            -

       DR Horton next argues that the Council erred in requiring a commitment from Intercity

Transit for fixed route transit service because the Council has never before required such a

commitment. DR Horton does not demonstrate any error.




                                                        11
No. 43300 1 II
          - -




       DR Horton cites two prior master plan proposals to support its claim, Bentridge and the

Village at Mill Pond Briarton. DR'Horton asserts that, like Trillium, the Bentridge developer
                     /

ensured that it would provide a sheltered bus stop at Bentridge even though the nearest fixed

route public transit service would be over a quarter mile away. And DR Horton further asserts
                                                     -

that, for Mill PondBriarton, the Council never imposed public transit requirements; instead, it

limited its review to ascertain whether the developer provided sheltered transit stops.

       DR Horton's assertions         are   misplaced. In considering Trillium, the hearing examiner

distinguished it from Bentridge because an Intercity Transit fixed route served Bentridge.

Intercity Transit also committed to fixed route transit service for the Village at Mill

Pond/ riarton. Trillium, however, lacked any public transit service. Accordingly, DR Horton's
    B

claims are unfounded.


                              E. Consistency with Comprehensive Plan

       DR Horton next argues that the Council erred as a matter of law when it evaluated the

Trillium master plan for consistency with comprehensive plan standards and not the adopted City

code standards.    Master plan approval, however, does require consistency with the City's

comprehensive plan.

       If a local zoning code explicitly requires that a proposed land use comply with the local

comprehensive plan, then the proposed use must satisfy both the zoning code and the

comprehensive plan. Woods, 162 Wn. d at 614. The City code here requires that the Council
                                 2

determine whether    a     proposed    master    plan   conflicts with the   comprehensive plan. OMC

3);
080(
18. 7. also RCW 36. 0B.declaring that comprehensive plans "serve as the
   1?)(
   5 see        030(
                   1) (
                   7
foundation for   project   review ").       And, n] land shall be subdivided or developed for any
                                                 "[ o


                                                        12
No.43300 1 II
         - -




purpose which is not in conformance with the Comprehensive Plan, any zoning ordinance or

other   applicable provisions       of the   Olympia Municipal     Code." OMC 18. 2. Because the
                                                                              100.
                                                                                0


City code expressly requires the Council to evaluate master plan proposals for consistency with

the comprehensive plan, OMC 18. 2. OMC 18. 7. Council did not err in
                            100;
                              0        3),
                                       080(
                                          D)(
                                          5  the

reviewing the Trillium master plan for consistency with the comprehensive plan.

                                                 F. Vagueness

         DR Horton next argues that the Council erred in denying the Trillium master plan

because    City policies     were   unlawfully   vague. DR Horton does not demonstrate beyond a

reasonable doubt that City policies are unconstitutionally vague.

         The void for vagueness doctrine          may apply   to   prohibitory   land   use   regulations.   Pac.


Topsoils, Inc. v. Dep't ofEcology, 157 Wn. App. 629, 646, 238 P. d 1201 (2010),
                                                               3              review denied,

171 Wn. d 1009 (2011). A challenger bears the burden of proving beyond a reasonable doubt
      2

that a statute is unconstitutionally vague. Haley v. Med. Disciplinary Bd.,
                                                                          117 Wn. d 720, 739,
                                                                                2

818 P. d 1062 (1991).
     2

         Here, DR Horton does not articulate what statute, specifically, is unconstitutionally

vague. Therefore, DR Horton does not bear its burden of proving beyond a reasonable doubt that

the City code is unconstitutional. See Haley, 117 Wn. d at 739.
                                                    2




2
 DR Horton also appears to claim that the transit requirement imposes an impossible task on a
developer—requiring a developer to obtain a guarantee from Intercity Transit, a body over which
the   developer   has   no      DR Horton does not support its impossibility argument with
                             control.
authority. Thus, we do not address this issue. RAP 10.
                                                   a)(
                                                     6).
                                                     3(

                                                       13
No. 43300 1 II
          - -




                G. Unconstitutional Regulatory Taking and Substantive Due Process

         DR Horton next argues that the Council's denial of the Trillium master plan amounted to

an unconstitutional regulatory taking and violated DR Horton's substantive due process rights.

But the Council's denial of the Trillium master plan does not constitute an unconstitutional

taking because it was neither an unlawful exaction nor an unconstitutional deprivation of

economic use.



         A land use regulation that too drastically curtails owners' use of their property can cause

a   constitutional   taking   or   a denial of substantive due process.   Presbytery of Seattle v. King

County, 114 Wn. d 320, 329, 787 P. d 907, cent. denied, 498 U. . 911 (1990). We consider
              2                  2                           S

these alternative grounds separately and we independently analyze them because the remedies

for each are different. Presbytery ofSeattle, 114 Wn. d at 329.
                                                    2

                                             1. Regulatory Taking

         To determine which of these two constitutional tests to use, we ask whether the

regulation destroys any fundamental attributes of ownership the right to possess, to exclude
                                                            —

others, to dispose of property, or to make some economically viable use of the property.

Guimont v. Clarke, 121 Wn. d 586, 602, 854 P. d 1 ( 1993),
                         2                  2            cent. denied, 510 U. . 1176 (1994).
                                                                            S

If a landowner asserts a "physical invasion" or "total taking," that assertion is not rebutted,
                                                              and

the owner is entitled to just compensation to recover for the constitutional taking; however, if the

owner fails to prove a "physical invasion"or " otal taking,"
                                             t             then there is no per se constitutional

taking requiring just compensation. Guimont, 121 Wn. d at 602 03.
                                                   2          -

         Here, DR Horton alleges that the City's transit requirement infringes a fundamental

property ownership attribute, a "total taking"of the property's economic viability, rendering the


                                                      14
No.43300 1 II
         - -




site   economically   useless without any    utility   or   marketability. The City rebuts DR Horton's

argument, noting that DR Horton may request a rezone of the property site for more traditional

residential development. Because the City code provides a property owner other economically

viable development options under OMC 18. 5.
                                     2), Horton does not
                                     050(
                                        A)( rezone, DR
                                        0  here a

demonstrate a "total taking"of all economically viable use of its Trillium site. Accordingly, the

Council's denial of the Trillium master plan does not constitute an unconstitutional taking. See

Guimont, 121 Wn. d at 603.
               2

                                     2. Substantive Due Process


         The Fourteenth Amendment prohibits states from depriving any person of life, liberty or

property, without due process of law. U. . CONST. amend. XIV, § 1. To determine whether a
                                       S


regulation violates due process, we apply a three part test to determine whether ( ) regulation
                                                  -                              1 the

is aimed at achieving a legitimate public purpose, ( )if uses means reasonably necessary to
                                                   2

achieve that purpose, and (3)the         regulation unduly      oppresses the landowner.   Guimont, 121

Wn. d at 609. A party raising a substantive due process challenge bears the burden of proving
  2

unconstitutionality   under this test.    Girton v. City of Seattle, 97 Wn. App. 360, 363, 983 P. d
                                                                                                2

1135 (1999),
           review denied, 140 Wn. d 1007 (2000).
                                2

         Our primary interest is with the "unduly oppressive" part of the analysis. Presbytery of

Seattle, 114 Wn. d
               2        at 331.   This inquiry "lodges wide discretion in the court and implies a




3
    DR Horton acknowledged this option before the Council, If transit service cannot be provided,
                                                           "
and that is what the Council determines is the standard, then an infrastructure component cannot
be provided to this property and a [rezone] then would be appropriate."AR Ex. 711 at 23 24.
                                                                                        -

                                                       15
No. 43300 1 II
          - -



balancing of the public's interests against those of the regulated landowner." Peste v. Mason

County, 133 Wn. App. 456, 475, 136 P. d 140 (2006),
                                    3             review denied, 159 Wn. d 1013 (2007).
                                                                       2

We consider several factors as part of this analysis, including the seriousness of the public

problem, the extent to which the owner's land contributes to it, the degree to which the

regulation solves it,and the feasibility of less oppressive solutions. Presbytery of Seattle, 114

Wn. d at 331.
  2                    We also consider the amount and percentage of value lost; the extent of the

remaining use; past, present, and future uses; the temporary or permanent nature of the

regulation; the extent to which the owner should have anticipated such regulation; and the

feasibility   of the   owner   altering present     or   currently planned      uses.   Presbytery of Seattle, 114

Wn. d at 331.
  2


         First, the public transit requirement serves a legitimate public purpose because it takes

automobiles off the road and reduces traffic.               Fewer automobiles yields safer streets, shorter

commutes, reduced carbon emissions, and improved air quality, all legitimate public purposes.

         Under the second part of the test, we note that a public transportation option is reasonably

necessary to reduce this traffic         congestion. Without fixed route transit service, Trillium's

citizens have no reliable public option for leaving Trillium throughout a day, essentially forcing

people to drive private automobiles if they need to travel beyond the neighborhood.

         Third, we focus       our   primary   interest    on    the " unduly    oppressive" part of   the test   If


Trillium lacks a public transportation option, then the residents and visitors in its densely

populated,     500 unit
                   -        neighborhood village,           have    limited transportation      options.    Public


transportation offers Trillium's residents and visitors the option to come and go and maintain

their   independence, without requiring         a   private      automobile.    And though DR Horton did not



                                                            16
No. 43300 1 II
          - -




satisfy the public transportation infrastructure requirement at the Trillium site, it acknowledged

that it may request a rezone to a more standard residential development; thus, the 80 acre
                                                                                      -

development   site still retains considerable       value.     Accordingly, the public transportation

requirement does not appear to be unduly oppressive.

       DR Horton contends that the public transit requirement is not based in a legitimate public

purpose, nor is it needed to resolve a public problem. A public transit requirement, however,

aims to reduce   greenhouse     gases, like carbon dioxide.     See, Darren A. Prum & Sarah L. Catz,

Greenhouse Gas Emission            Targets and   Mass Transit:      Can the Government Successfully

Accomplish   Both Without      a   Conflict ?, 51 SANTA     CLARA L. REV.   935, 935 36 (2011). And,
                                                                                     -


carbon emissions   are   a   legitimate public   concern.    See J. . Ruhl &
                                                                  B            James Salzman, Climate

Change Meets the Law of the Horse, 62 DUKE L. .975, 1003 (2013).Accordingly, DR Horton
                                            J

does not carry its burden of proving the unconstitutionality of the public transit requirement.

Therefore, DR Horton does not demonstrate that the Council violated DR Horton's substantive

due process. See Girton, 97 Wn. App. at 363.

                             II. RESERVING FUTURE SCHOOL SITE DECISION


       DR Horton next claims that nothing requires the Council to analyze a master plan's

consistency with comprehensive plan policies; and consequently, the Council erred in reserving a

future decision about whether Trillium's master plan was consistent with the comprehensive

plan's school site dedication policies. Again, we defer to the Council to decide if and when it is

prepared to determine whether a master plan is consistent with the comprehensive plan, and

accordingly, we affirm its decision to reserve its determination regarding Trillium's consistency

with school site dedication policies.



                                                     17
No. 43300 1 II
          - -




       The comprehensive plan provides that, n]w residential developments should take into
                                             "[ e

account the   impact they    may have   on   school    capacity. If a development is large enough to

generate the need, one or more school sites should be dedicated." Comprehensive Plan ch. 5 at

32 (PF 33. ).
         5 And by ordinance, the Council must determine whether a neighborhood village

master plan application conflicts with the City's adopted plans, policies and ordinances before

approving    the master   plan.   OMC 18. 2. OMC
                                      100;
                                        0                      18. 7. Accordingly, before it
                                                               3).
                                                               080(
                                                                  D)(
                                                                  5

could approve the Trillium master plan, the municipal code required the Council to determine
whether     sufficient   school   capacity   existed    to   serve   Trillium's   residents.   See   OMC


3);
080(
18. 7.
   D)(
   5 Comprehensive Plan ch. 5 at 32 (PF 33. ). because the Council denied the
                                          5 But

Trillium master plan due to deficiencies in public transit requirements, it declined to reach the

merits of the school capacity issue in dismissing the master plan. We hold that DR Horton does

not demonstrate error; and we defer to the Council's decision on this issue.

                    III. ADEQUACY OF RECORD TO DECIDE CONNECTIVITY ISSUES

       Finally, DR Horton claims that the Council erred when it determined that the record was

inadequate to determine that Trillium met bicycle and pedestrian connectivity requirements.

Specifically, DR Horton asserts that substantial evidence does not support the Council's
determination    regarding bicycle and pedestrian connectivity.             We defer to the Council's


determination that it lacked an adequate record to decide that the Trillium proposal was

consistent with connectivity requirements.

                                         A. Standard of Review


       In reviewing a LUPA action for substantial evidence, we analyze whether a "sufficient

quantum of evidence"in the record could persuade a reasonable person that the declared premise


                                                       18
No.43300 1 II
         - -




is true when viewed in light of the whole record, after drawing inferences from the evidence in a

light most favorable to the decision by the highest forum exercising fact -
                                                                          finding authority.

Phoenix Dev.,Inc.,
                 171 Wn. d at 831. Here, we review this sufficiency challenge, viewing the
                       2

facts and drawing inferences in a light most favorable to the Council's action that rejected the

Trillium master plan and found that the record was inadequate to find consistency with

connectivity standards. See Phoenix Dev.,
                                        Inc., Wn. d at 831.
                                            171 2

                                           B. Analysis

       In its ordinance that denied the Trillium master plan, the Council issued findings.

Regarding connectivity,   the Council found: "    The present record is inadequate to make a

determination that the Trillium MPA meets the requirements for bicycle and pedestrian

connections set forth in the City Code, including the Engineering Design and Development

Standards, and the Comprehensive Plan. However, in light of the Council's decision, a remand

is unnecessary."AR at 5983.

       The parties interpret this finding differently. But because the finding states that, in light

of the finding "remand is unnecessary,"the Council implied that it did not reach a final

substantive decision but instead left open the possibility of DR Horton supplementing the record

at a later time to demonstrate connectivity compliance.

                                    1. Connectivity standards

       Initially, DR Horton contends that the City lacked any " meaningful, measurable
standards   governing connectivity."     Br. of    Appellant   at   49.   But   substantial evidence


demonstrates that the City does have measurable plans, policies, and ordinances controlling

bicycle and pedestrian connectivity. For example, the City code requires neighborhood villages


                                                  19
No. 43300 1 II
          - -




to have "direct, convenient pedestrian, bicycle, and vehicular access between residences in the

development and village center, in order to facilitate pedestrian and bicycle travel and reduce the

number and length of automobile trips."OMC 18. 5.
                                           4).
                                           020(
                                              A)(
                                              0

       The City's engineering design and development standards ( EDDS),which. OMC

020
12. 2.incorporates into the City code, also require a street connection every 250 to 350 feet,
  0

creating block lengths of 250 to 350 feet on neighborhood collector and local access streets.

EDDS 413. 30, Table 3. But, w] larger blocks are necessary due to topography, existing
        0                   "[ here

development, or other constraints, intervening public cross block pedestrian, bicycle, and
                                                            -

emergency access will be provided."EDDS 2.
                                        e).
                                        B)(
                                         3)(
                                         040(

       Moreover, the City's comprehensive plan contains bicycle-
                                                               pedestrian connectivity

standards, requiring "as many connections as possible throughout the network using the street

network   spacing criteria."Comprehensive         Plan ch. 6 at 17 ( T     3.3( Another criterion
                                                                           a)).
                                                                            1

requires developers    to "   design   in    as   many   pedestrian/bike   connections   as possible."

Comprehensive    Plan ch. 6 at 18 ( T       3.3( It, too, outlines residential street policies and
                                            h)).
                                             1

requires that they be designed " o enable people to quickly and easily reach these destinations on
                               t

foot, bicycle, or in a car or bus."Comprehensive Plan ch. 6 at 20 (T 3.9( And, it requires
                                                                     g)).
                                                                      1

that "blocks be small enough (e. ., to 350 feet) to create easy travel options for motorized
                               g 250

and non -motorized travel. [ ote: Standard blocks in older residential areas in Olympia that are
                           N

250 to 350 feet long are considered walkable.J"
                                              Comprehensive Plan ch. 6 at 21 22 ( 3.0(
                                                                             - T g))
                                                                                   2

 Note"contained in original).That same comprehensive plan section calls for a

        network of paved pedestrian and bicycle paths separated, where possible, from
        motor vehicle travel lanes, to and through existing and future neighborhoods,
        shopping areas, parks, collector roads and schools. These paths should provide


                                                    20
No.43300 1 II
         - -




         shortcuts between roads, rather than paralleling them. These shortcut paths may
         appropriately serve as an alternative to roadway connections between existing
         local access streets and new streets, depending on the objectives to be furthered
         by a particular connection.

Comprehensive Plan ch. 6 at 22 (T 3.
                                   200)).

         Again, because these standards are either contained in the City code or comprehensive

plans, neighborhood village master plans must be consistent with these standards before master

plan approval. See OMC 18. 2.OMC 18. 7.Therefore, the City had measurable
                       100;
                         0       3).
                                 080(
                                    D)(
                                    5

connectivity standards that DR Horton needed to satisfy in its Trillium proposal.

                                      2. Evidence of connectivity

         OSSC entered considerable evidence into the record to demonstrate that the Trillium

master   plan   did not meet   connectivity requirements. And now, DR Horton essentially admits

that Trillium's connectivity falls short of City requirements when it acknowledges that it

voluntarily incorporated many of [OSSC's]
                                        requested pedestrian and bicycle connections into

the [Trillium] master plan design."Br. of Appellant at 12. OSSC, however, advocated for only

those connections required under the City's plans, policies, and ordinances; so, when DR Horton

stated that it incorporated many but not all of the required connectivity designs, it admitted that it

did not satisfy all of the required connectivity designs.

         Though the evidence contained in the record regarding connectivity may have been

substantial enough evidence on which the Council could decide that DR Horton provided

inadequate evidence to demonstrate consistency with the City's connectivity standards, the

Council declined to make a final determination on the matter; instead, it simply stated that DR

Horton had not demonstrated that Trillium would be consistent with the comprehensive plan.




                                                  21
No. 43300 1 II
          - -



We defer to the Council's reasonable determination that, to this point, DR Horton has provided

inadequate evidence to demonstrate compliance with City connectivity requirements.

                                         1I OW- IMAM;
                                              M "


       The City and OSSC seek reasonable attorney fees, expenses, and costs as prevailing

parties under RCW 4.4. Because we affirm the Council's decision, the City is entitled to
                  370.
                    8

reasonable attorney fees and costs under RCW 4.4. a prevailing party on appeal.
                                             370(
                                                2 as
                                                8 )

       Generally, a prevailing party     is   one   who receives   a   judgment   in its favor. Schmidt v.


Cornerstone Invs.,Inc.,115 Wn. d 148, 164, 795 P. d 1143 ( 1990). If
                             2                  2                                     neither party wholly

prevails then the party who substantially prevails is the prevailing party. See Rowe v. Floyd, 29

Wn. App. 532, 35 n. , 2d 925 (1981).
            5    629 P.
                  4

       DR Horton claims that OSSC is not entitled to attorney fees "under any circumstance as

it has never been a prevailing party and has only ever held `intervenor' status."Reply Br. at 25.

Contrary to DR Horton's argument, intervenors have been awarded attorney fees as prevailing

parties in the past. See Fireman's Fund Ins. Co. v. Nw Paving and Constr. Co., Wn. App.
                                                                             77

474, 478, 891 P. d 747 (1995) ( " award of attorney fees is not limited to the judgment
               2              The

debtor, but may be made   to   an   intervening party who prevails. "). Here, because we agree with

OSSC that DR Horton failed to provide adequate evidence of Trillium's consistency with City

connectivity standards,   OSSC      substantially prevailed    on      this issue.   Accordingly, because

intervenors may be prevailing parties, and DR Horton has provided no authority otherwise, we

award OSSC attorney fees and costs as a prevailing party intervenor under RCW 4.4.
                                                                              370(
                                                                                 1
                                                                                 8 ).




                                                      22
No. 43300 1 II
          - -



       We affirm the Council's action. We award costs and attorney fees to the City and OSSC

as prevailing parties on appeal upon their compliance with RAP 18. .
                                                                 1

       A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

040,
2.6.it is so ordered.
  0

                                                                                  il




                                                                 Johanson, J.
We concur:




                                              23
