JL Storedahl & Sons, Inc. v. Cowlitz County

• Decision Date: 10 August 2004
• Docket Number: No. 30245-4-II.,30245-4-II.
• Citation: 125 Wn. App. 1,125 Wash. App. 1,103 P.3d 802
• Court: Washington Court of Appeals
• Parties: J.L. STOREDAHL & SONS, INC., a Washington corporation, Appellant, v. COWLITZ COUNTY, a municipal corporation, Respondent, and Kenneth M. Conaway and Karen Conaway, husband and wife; Jerry L. Storedahl and Jeannie C. Storedahl, husband and wife, Additional Parties.

103 P.3d 802

125 Wn. App. 1

125 Wash. App. 1

J.L. STOREDAHL & SONS, INC., a Washington corporation, Appellant, v. COWLITZ COUNTY, a municipal corporation, Respondent, and Kenneth M. Conaway and Karen Conaway, husband and wife; Jerry L. Storedahl and Jeannie C. Storedahl, husband and wife, Additional Parties.

No. 30245-4-II.

Court of Appeals of Washington, Division 2.

August 10, 2004.

As Amended on Denial of Reconsideration and Publication Ordered December 21, 2004.

John S. Karpinski, Attorney at Law, Vancouver, WA, Ronald S. Marshall, Attorney at Law, Kelso, WA, for Respondents.

Eric S. Merrifield, Perkins, Coie LLP, Seattle, WA, Alexander Weal Mackie, Perkins, Coie LLP, Olympia, WA, for Appellants.

HOUGHTON, J.

J.L. Storedahl & Sons, Inc. appeals from a superior court judgment affirming a Cowlitz County Board of County Commissioners (Board) land use decision. That decision required Storedahl to comply with conditions attached to the approval of a special use permit to operate a surface mine. Storedahl raises jurisdictional and evidentiary issues. We affirm.

FACTS

In February 2001, Storedahl applied for a special use permit to expand its 90.2 acre surface mine in Cowlitz County, known as Carrolls Mine. The proposed project would add approximately 16.2 acres to the quarry.

On July 20, after an open hearing, the Cowlitz County Planning Commission (Commission) approved the special use permit, subject to 13 conditions. These conditions sought to mitigate a wide range of impacts from the proposed mine expansion, including those related to noise, traffic and traffic safety, control of unauthorized public access, air emissions and air quality, vibrations, blasting and blasting safety, water quality and quantity pertaining to neighboring wells, hazardous materials handling, and the process for addressing any potential future violations of these conditions.

The owners of adjacent parcels, Kenneth and Karen Conaway, appealed the Commission's approval to the Board. After a closed hearing, the Board remanded Storedahl's permit request to the Commission for further clarification and information gathering.

The Commission held a second open hearing on May 1, 2002, and approved Storedahl's special use permit. This approval included 19 conditions, clarifications, and changes to its earlier designated conditions.

The Board then reviewed the Commission's new plan at closed hearings on July 23 and 30, 2002. On August 13, 2002, the Board approved Storedahl's special use permit, but modified six findings and attached a total of 19 conditions.

Storedahl appealed the Board's modified findings and conditions to the superior court. On March 24, 2003, the superior court upheld the Board's additional conditions and findings. Storedahl now appeals, asserting that five of the Board's additional conditions the superior court upheld are unlawful.

ANALYSIS

Standard of Review

The Land Use Petition Act (LUPA) governs judicial review of land use decisions. HJS Dev., Inc. v. Pierce County, Dep't of Planning & Land Servs., 148 Wash.2d 451, 467, 61 P.3d 1141 (2003) (citing Chelan County v. Nykreim, 146 Wash.2d 904, 916-17, 52 P.3d 1 (2002)). "A petition for review by the superior court constitutes appellate review on the administrative record before the local jurisdiction's body or officer with the highest level of authority to make the final determination." HJS, 148 Wash.2d at 467,61 P.3d 1141; see also Citizens to Preserve Pioneer Park v. City of Mercer Island, 106 Wash. App. 461, 470, 24 P.3d 1079 (2001); RCW 36.70C.130(1); RCW 36.70C.020(1).

On review of a superior court land use permit decision, we stand in the same shoes as that court. HJS, 148 Wash.2d at 468, 61 P.3d 1141 (citing Citizens, 24 P.3d 1079, 106 Wash.App. at 470). We review the administrative decision on the record of the administrative tribunal, not the superior court record. HJS, 148 Wash.2d at 468, 61 P.3d 1141 (citing King County v. Boundary Review Bd., 122 Wash.2d 648, 672, 860 P.2d 1024 (1993)). We therefore review the record before the Board and review questions of law de novo to determine whether the facts and law supported the land use decision. HJS, 148 Wash.2d at 468, 61 P.3d 1141; see also City of Univ. Place v. McGuire, 144 Wash.2d 640, 647, 30 P.3d 453 (2001)

; Girton v. City of Seattle, 97 Wash.App. 360, 363, 983 P.2d 1135 (1999),

review denied, 140 Wash.2d 1007, 999 P.2d 1259 (2000).

Based on this standard, to obtain relief from the land use decision, Storedahl must establish the following:

(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).

Board Jurisdiction

Storedahl first contends that the Board improperly exercised original jurisdiction, arguing that the Cowlitz County Code (CCC)¹ limits the Board to appellate jurisdiction.

In order to give proper deference on factual issues, it is necessary to determine whether each tribunal below had original or appellate jurisdiction. State ex rel. Lige & Wm. B. Dickson Co. v. County of Pierce, 65 Wash.App. 614, 618, 829 P.2d 217, review denied, 120 Wash.2d 1008, 841 P.2d 47 (1992). A tribunal with original jurisdiction has authority to make findings of fact, and it is to those findings that we defer in the manner described above. Wm. B. Dickson Co., 65 Wash.App. at 618, 829 P.2d 217.

A tribunal with only appellate jurisdiction is not permitted or required to make its own findings and such findings, if entered, are surplusage. Wm. B. Dickson Co., 65 Wash.App. at 618, 829 P.2d 217. (citing Maranatha Mining, Inc. v. Pierce County, 59 Wash.App. 795, 802, 801 P.2d 985 (1990); Berger Engg. Co. v. Hopkins, 54 Wash.2d 300, 308, 340 P.2d 777 (1959); Grader v. City of Lynnwood, 45 Wash.App. 876, 879, 728 P.2d 1057 (1986)). The Board may only retain either original or appellate jurisdiction; not a combination of both. Maranatha Mining, 59 Wash.App. at 800-01, 801 P.2d 985. But "[t]he scope and nature of an administrative appeal or review must be determined by the provisions of the statutes and ordinances which authorize them." Citizens, 106 Wash.App. at 471-72, 24 P.3d 1079 .

We must begin our analysis by examining Cowlitz County's procedure for handling special use permit applications. Former CCC § 18.10.310, the provision applicable here, stated that "[t]he action of the Planning Commission may be appealed to the Board of County Commissioners...." Also, former CCC § 18.10.320 addressed the Board's role in resolving an appeal: "Upon any appeal of the Planning Commission's decision on a special use application, the Board shall review the application on the record, as provided in CCC 18.10.310. The Board shall have full authority to grant the permit, or grant the permit subject to conditions, or deny the permit." (Emphasis added.) Finally, former CCC § 18.10.325 provided: "The Planning Commission and if appealed, the Board of County Commissioners shall make available to the public those findings of fact upon which their action is based regarding approval or denial of special use permit applications."

The Board's August 13, 2002 decision letter informed Storedahl that the Board made its own factual findings;² thus, the Board exercised original jurisdiction. But by granting the Board full authority to issue or deny permits, former CCC § 18.10.320 also authorized the Board to exercise its original jurisdiction when reviewing the Commission's decision. Therefore, here, the Board properly exercised its original jurisdiction.

Special Use Permit Conditions

Standards for Imposing Additional Conditions

Storedahl next appeals from 5³ of the 19 conditions the Board placed on its permit request. Storedahl asserts that the Board failed to provide identifiable standards for imposing these conditions. Specifically, Storedahl asserts that the County did not follow the standards adopted by County Ordinance 95-166 and Resolution 95-167; instead, the County arbitrarily imposed a set of conditions.⁴

A municipality, as a legislative body, acts in an administrative capacity when it issues a special use permit and must be guided by adequate standards. Standard Mining & Dev. Corp. v. City of Auburn, 82 Wash.2d 321, 327, 510 P.2d 647 (1973) (citing Durocher v. King County, 80 Wash.2d 139, 492 P.2d 547 (1972)). The authority to grant special permits commonly includes express language empowering the administrative body to grant permits subject to reasonable conditions designed to protect adjacent property and to carry out the purposes of the ordinance. Standard Mining, 82 Wash.2d at 328, 510 P.2d 647.

To prevail, Storedahl must establish that the Board acted arbitrarily and capriciously in imposing conditions. Standard Mining, 82 Wash.2d at 332, 510 P.2d 647; see also Chestnut Hill Co. v. City of Snohomish, 76 Wash.2d 741, 458 P.2d 891 (1969)

. If the conditions imposed were reasonably calculated to achieve the purposes set forth in the County resolution, they cannot be set aside on appeal. Standard Mining, 82 Wash.2d at 332,

510 P.2d 647.

Standards specifications are not always appropriate in administrative actions. Standard Mining, 82 Wash.2d at 330,510 P.2d 647 (citing Barry & Barry, Inc. v. Dep't of Motor Vehicles, 81 Wash.2d 155, 500 P.2d 540 (1972)). Only rarely will the environmental factors affecting...