Ellensburg Cement Prods., Inc. v. Kittitas Cnty. & Homer L. (Louie) Gibson

• Decision Date: 06 February 2014
• Docket Number: No. 88165–1.,88165–1.
• Citation: 317 P.3d 1037,179 Wash.2d 737
• Court: Washington Supreme Court
• Parties: ELLENSBURG CEMENT PRODUCTS, INC., Respondent, v. KITTITAS COUNTY and Homer L. (Louie) Gibson, Petitioners, James and Deanna Hamilton, and Larry and Sherrie Miller, Defendants.

179 Wash.2d 737

317 P.3d 1037

ELLENSBURG CEMENT PRODUCTS, INC., Respondent,

v.KITTITAS COUNTY and Homer L. (Louie) Gibson, Petitioners,James and Deanna Hamilton, and Larry and Sherrie Miller, Defendants.

No. 88165–1.

Supreme Court of Washington,

En Banc.

Feb. 6, 2014.

Neil Alan Caulkins, Kittitas County Prosecutor, Ellensburg, WA, James Cortland Carmody, Velikanje Halverson PC, Yakima, WA, for Petitioners.

Michael John Murphy, Groff Murphy PLLC, William John Crittenden, Attorney at Law, Seattle, WA, for Respondents.

GORDON McCLOUD, J.

¶ 1 Homer L. Gibson applied to Kittitas County for a conditional use permit (CUP) that would allow him to conduct rock crushing and other gravel and cement production related activities on his agricultural-zoned property. Kittitas issued a determination of nonsignificance (DNS) under the State Environmental Policy Act (SEPA), chapter 43.21C RCW, and gave notice that it would hold a public hearing on the CUP. Ellensburg Cement Products, Inc. objected to the CUP application and appealed Kittitas's SEPA DNS under the county's administrative appeal procedures. In the hearing that followed, Kittitas first considered the SEPA appeal in a “closed record” hearing, Clerk's Papers (CP) at 30, and upheld the DNS. It then held an “open record” public hearing on the CUP, CP at 103, and granted Gibson's application over Ellensburg Cement's objections. Ellensburg Cement appealed both decisions to the superior court, which affirmed, and then to the Court of Appeals, which reversed. Ellensburg Cement Prod., Inc. v. Kittitas County, 171 Wash.App. 691, 287 P.3d 718 (2012). The Court of Appeals held that Kittitas was statutorily required to hold an “open record hearing” on the appeal of the SEPA DNS and that rock crushing was not a permissible conditional use under Kittitas's relevant zoning regulations. Id. at 713, 287 P.3d 718. We granted Gibson's and Kittitas's petitions for review, 176 Wash.2d 1027, 301 P.3d 1047 (2013), and now affirm the Court of Appeals.

FACTS

¶ 2 Gibson owned about 84 acres of property in five contiguous parcels, zoned “agricultural–20” (A–20). In 1997, the previous owner of that property had applied for and received a CUP for gravel extraction on one 13.4–acre parcel of the property. The parties do not dispute that gravel extraction was and is a permitted conditional use in A–20 zones.

¶ 3 In October 2008, Gibson applied for a gravel extraction permit from the Department of Natural Resources (DNR) for an area of 60 acres. Kittitas confirmed to DNR that the gravel extraction on 60 acres had been approved by the county. In fact, the only CUP issued by Kittitas allowed gravel extraction on one 13.4 acre parcel. Nevertheless, DNR approved Gibson's permit for an area of 60 acres in December 2008. In April 2009, Kittitas issued a notice of violation to Gibson. The notice warned that gravel extraction was occurring on Gibson's property for which no CUP had been issued. The record does not show any further action by the county following the notice of violation.

¶ 4 In June 2010, Gibson submitted a CUP application that purported to amend the 1997 CUP to permit rock crushing in addition to gravel extraction. His application suggested that the 1997 CUP applied to all five of his parcels, totaling 84 acres. Included in the application was a copy of what appeared to be the SEPA checklist submitted with Gibson's application to DNR in 2008. The checklist submitted with his 2010 application to Kittitas, however, was altered—the original checklist referred to mining an area of 60 acres, whereas the list submitted to Kittitas referred to 84 acres.

¶ 5 Ellensburg Cement objected to Gibson's application in August 2010. It noted several of the discrepancies discussed above and also asserted that the county could not rely only on the 2008 SEPA checklist but, rather, should conduct its own independent SEPA review. Kittitas disagreed, determined that Gibson's application was complete, and published a notice of the application and notice of its intent to issue a SEPA DNS. Written comments were invited, received, and placed in the record for consideration. In October 2010, Kittitas issued a SEPA DNS. At the same time, the county gave notice that it would hold a public hearing on the CUP application. Ellensburg Cement appealed the SEPA DNS.

¶ 6 Kittitas held the hearing on the SEPA appeal on May 11, 2011, and upheld the DNS. The hearing's procedures were dictated by Kittitas's “new procedure for administrative appeals.” CP at 108. Under that new procedure, “[n]o new evidence or testimony shall be given or received” and the “hearing body shall deliberate on the matter in public in the manner of a closed record hearing.” Kittitas County Code(KCC) 15A.07.020(1), (2).

¶ 7 Directly following this closed record hearing on the SEPA appeal, Kittitas held an “open record hearing” on Gibson's CUP application. CP at 103. Ellensburg Cement objected to Gibson's CUP application and was permitted to present arguments and testimony, as were all interested parties. Ellensburg Cement argued, among other things, that rock crushing was not a permitted conditional use on A–20 land. The hearing board disagreed and approved the application. CP at 103.

¶ 8 Ellensburg Cement appealed both decisions—the one from the “closed record” SEPA appeal and the one from the “open record” CUP application hearing—through the Land Use Petition Act (LUPA), chapter 36.70C RCW, to Kittitas County Superior Court. The superior court affirmed. CP at 534. Ellensburg Cement then appealed to the Court of Appeals. The Court of Appeals held that Kittitas erred by holding a “closed record” hearing, rather than an “open record” hearing, on the SEPA appeal. Ellensburg Cement, 171 Wash.App. at 712–13, 287 P.3d 718. It also held that rock crushing was not a permitted conditional use on A–20 land. Id. at 706, 287 P.3d 718. Kittitas and Gibson sought review in this court, we accepted review, and we now affirm the Court of Appeals.

ANALYSIS

I. Standard of Review

¶ 9 Judicial review of land use decisions is governed by LUPA. RCW 36.70C.030. An appellate court is in the same position as the superior court when reviewing a LUPA petition. Griffin v. Thurston County Bd. of Health, 165 Wash.2d 50, 54, 196 P.3d 141 (2008) (citing Isla Verde Int'l Holdings, Inc. v. City of Camas, 146 Wash.2d 740, 751, 49 P.3d 867 (2002)). The party seeking relief must establish:

(a) The body or officer that made the land use decision engaged in unlawful procedure [sic] 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).

¶ 10 Interpretation of a statute is a question of law that this court reviews de novo. State v. Wentz, 149 Wash.2d 342, 346, 68 P.3d 282 (2003) (citing City of Pasco v. Pub. Emp't Relations Comm'n, 119 Wash.2d 504, 507, 833 P.2d 381 (1992)). Our duty in conducting statutory interpretation is to “discern and implement” the legislature's intent. State v. J.P., 149 Wash.2d 444, 450, 69 P.3d 318 (2003) (citing Nat'l Elec. Contractors Ass'n v. Riveland, 138 Wash.2d 9, 19, 978 P.2d 481 (1999)). Where the plain language of a statute is unambiguous, and legislative intent is therefore apparent, we will not construe the statute otherwise. Id. However, plain meaning may be gleaned “from all that the Legislature has said in the statute and related statutes which disclose legislative intent about the provision in question.” Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wash.2d 1, 11, 43 P.3d 4 (2002). The same principles apply to interpretation of municipal or county ordinances, like the Kittitas ordinance at issue here. City of Spokane v. Fischer, 110 Wash.2d 541, 542, 754 P.2d 1241 (1988) (citing Puyallup v. Pac. Nw. Bell Tel. Co., 98 Wash.2d 443, 448, 656 P.2d 1035 (1982)).

II. Whether Kittitas's SEPA Appeal Procedures Comport with State Law

a. Threshold Determinations under SEPA

¶ 11 Under SEPA, counties and other entities must include a detailed environmental impact statement (EIS) “in every recommendation or report on proposals for legislation and other major actions significantly affecting the quality of the environment.” RCW 43.21C.030(c). SEPA charges the Department of Ecology with creating “[r]ules for criteria and procedures applicable to the determination of when an act of a branch of government is a major action significantly affecting the quality of the environment for which a detailed statement is required to be prepared pursuant to RCW 43.21C.030.” RCW 43.21C.110(b).

¶ 12 Pursuant to that statutory authority, Ecology has established a “threshold determination process” to decide whether an action is a major action significantly affecting the environment for which an EIS is required. WAC 197–11–330. “If the responsible official determines there will be no probable significant adverse environmental impacts from a proposal, the lead agency shall prepare and issue a determination of nonsignificance (DNS).” WAC 197–11–340(1). If the responsible entity issues a DNS, then no EIS is required. See generallyWAC 197–11–330.

b. Appeals of Threshold SEPA Determinations

¶ 13 A county or other entity ¹ charged with making SEPA determinations may choose whether or not to provide an internal appeals process for challenging its determinations. SeeWAC 197–11–680(2) (“Agencies may establish procedures for such an appeal, or may...