Ellensburg Cement Prods., Inc. v. Kittitas Cnty.

• Decision Date: 30 October 2012
• Docket Number: No. 30381–1–III.,30381–1–III.
• Citation: 287 P.3d 718,171 Wash.App. 691
• Court: Washington Court of Appeals
• Parties: ELLENSBURG CEMENT PRODUCTS, INC., Appellant, v. KITTITAS COUNTY, Respondent, and Homer L. (Louie) Gibson, Respondent, James and Deanna Hamilton, and Larry and Sherrie Miller, Defendants.

171 Wash.App. 691

287 P.3d 718

ELLENSBURG CEMENT PRODUCTS, INC., Appellant,

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

No. 30381–1–III.

Court of Appeals of Washington,

Division 3.

Oct. 30, 2012.

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

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

KULIK, J.

[171 Wash.App. 695]¶ 1 Homer L. “Louie” Gibson owns real property in Kittitas County that is designated “rural” under the Kittitas County Comprehensive Plan and zoned “agriculture–20” (A–20). Through a series of administrative proceedings, and an appeal to superior court, Mr. Gibson obtained a determination of nonsignificance (DNS) and a conditional use permit (CUP) allowing him to crush rock on his property. On appeal here, Ellensburg Cement Products, Inc. (ECP) asserts the CUP must be reversed because rock crushing is not a permitted or a conditional use in the A–20 zone. ECP also contends the DNS must be reversed because (1) the County violated State Environmental Policy Act (SEPA), chapter 43.21C RCW, regulations regarding the use of existing environmental documents, and (2) the record shows no meaningful SEPA review.

¶ 2 We conclude that the unambiguous language of the Kittitas County Code (KCC) ¹ does not permit rock crushing in A–20 zones, and that the County's failure to provide one open record hearing on the SEPA appeal was erroneous as a matter of law. Therefore, we reverse the issuance of the CUP and the SEPA determination of nonsignificance.

FACTS

¶ 3 Mr. Gibson owns 84 acres of real property situated on five contiguous parcels in rural Kittitas County. The property is designated “rural” under the Kittitas County Comprehensive Plan and zoned “agriculture–20” (A–20). Clerk's Papers (CP) at 102, 192.

[171 Wash.App. 696]¶ 4 Miller Conditional Use Permit. In December 1997, Mr. Gibson's predecessor, John Miller, obtained a CUP for gravel extraction on one of the five parcels now owned by Mr. Gibson. This parcel is 13.4 acres in size. At some point, Mr. Gibson began expanding the gravel extraction area into the other parcels. In August 2008, the Department of Natural Resources (DNR) issued a stop work order. In April 2009, the court issued a notice of violation for unauthorized excavation and/or rock crushing on the five Gibson parcels. The County apparently did not follow up on this violation.

¶ 5 Gibson DNR Permit. In October 2008, Mr. Gibson applied for a DNR surface mining permit. The SEPA checklist submitted by Mr. Gibson indicated that he sought to mine an area of approximately 60 acres. At that point, Mr. Gibson had a CUP for only 13.4 acres. DNR issued Mr. Gibson a surface mining permit for a 60 acre site.

¶ 6 The project entailed:

Mining, crushing and removal of approximately 3,000,000 cubic yards of basalt/basalt shale from an area of approximately 60 acres. At present rock crushing is not occurring on the site, but might possibly occur in the future. Upon completion of mining the site will be used as a shop and equipment storage area, and house sites, therefore replacement of topsoil on either the pit floor or slopes is not anticipated or desirable.

CP at 158.

¶ 7 DNR reviewed the application and issued a SEPA threshold determination on November 10, 2008, concluding:

The lead agency for this proposal has determined that it does not have a probable significant adverse impact on the environment. An environmental impact statement (EIS) is not required under RCW 43.21C.030(2)(c). This decision was made after review of a completed environmental checklist and other information on file with the lead agency. This information is available to the public on request.

CP at 164.

¶ 8 No appeal was filed. DNR issued a surface mining reclamation permit (DNR permit) on December 3, 2008. The DNR permit stated that (1) the total disturbed area would be 60 acres, (2) the maximum depth below pre-mining topographical grade would be 130 feet, and (3) the maximum depth of excavated mine floor would be 1,890 feet relative to sea level.

¶ 9 CUP Application. In June 2010, Mr. Gibson submitted the CUP application at issue here. He requested a CUP for the placement of rock crushing, screening, washing operations, and temporary concrete and asphalt plants in the A–20 zone.

¶ 10 Mr. Gibson argues that the application for the CUP proposed to amend the existing Miller CUP. This amendment was to allow for the expansion of the existing CUP onto the adjoining parcels. In contrast, ECP argues that Mr. Gibson's CUP application did not seek to expand the existing CUP. According to ECP, the CUP application misleadingly implied that the existing CUP already applied to all five parcels. Moreover, in ECP's view, Mr. Gibson's CUP application sought to amend the existing CUP to allow new uses, including rock crushing, screening and washing as well as temporary plants for asphalt and concrete recycling.

¶ 11 ECP points out what purports to be a copy of the 2008 SEPA checklist that Mr. Gibson submitted to DNR. According to ECP, pages 1, and 3 through 6 of the checklist were the same as the 2008 checklist. However, other pages had been altered in the following ways; (a) on page 2, paragraph 11 of the original 2008 checklist referred to mining on a 60 acre site but paragraph 11 of page 2 of the altered checklist referred to mining on an 84 acre site, and (b) the bottom of page 7 had been altered to remove the original 2008 date.

¶ 12 In June 2010, Kittitas County issued a determination that Mr. Gibson's application was complete. One month later, the County published a notice of application for the CUP. The notice indicated that the County expected to issue a DNS for the CUP application.

[171 Wash.App. 698]¶ 13 In August, ECP filed its objection to the CUP application. ECP pointed out that rock crushing and asphalt plants were not permitted or conditional uses in the A–20 zone. ECP also explained that: (a) Mr. Gibson's gravel extraction had been illegally expanded, (b) the application did not ask to expand the existing CUP to the other parcels, (c) the 2008 SEPA checklist did not address the impacts of the current application, and (d) no studies of the impacts of the CUP on dust, water, noise, vibration, safety, storm water, and toxics prevention had been performed. ECP asserted that the County, as SEPA lead agency, could not simply reuse the 2008 checklist from DNR. In short, ECP took the position that no meaningful SEPA review had occurred and that the County had abdicated it responsibilities under SEPA.

¶ 14 In September, Mr. Gibson amended his application to delete washing operations, and the temporary concrete and asphalt plants. One month later, the County issued a DNS to expand the existing gravel pit and to allow rock crushing. There is no evidence that any additional studies were performed before the DNS was issued. Later, the ECP appealed the DNS to the Board of County Commissioners (Board) and the CUP to the Board of Adjustment (BOA).

¶ 15 Notice of SEPA Appeal. In March 2011, the County issued a notice that the BOA would hold a closed record hearing on the SEPA appeal and the CUP. The County filed its SEPA appeal brief that expressly recognized that rock crushing was not considered a conditional or permitted use in the A–20 zone. Specifically, the brief read:

Indeed, there appears a problem with this application comporting with the underlying zoning in that it is asking for permission to engage in rock crushing, which is not a listed conditional use in this zone. But only the BOA has jurisdiction to answer that question when it reviews the merits of the application.

CP at 206.

[171 Wash.App. 699]¶ 16 The County provided for a single integrated comment period under the optional DNS process established by WAC 197–11–355. The process required the lead agency to advise recipients of the likely determination of the proposal. The County's notice contained the following disclosure;

The County expects to issue a Determination of Non–Significance (DNS) for this proposal, and will use the optional DNS process, meaning this may be the only opportunity for the public to comment on the environmental impacts of the proposal Mitigation measures may be required under applicable codes, such as Title 17 Zoning, Title 17A Critical Areas, and the Fire Code, and the project review process may incorporate or require mitigation measures regardless of whether an EIS is prepared. A copy of the threshold determination may be obtained from the County.

CP at 261 (emphasis added).

¶ 17 Notice was circulated to agencies and neighbors. Affected agencies, including the Kittitas County Department of Public Works, Kittitas County Fire Marshall, DNR, and Department of Ecology, submitted comments. No commenting agencies objected to the proposal or opposed issuance of a DNS. Neighbors initially asked questions but, ultimately, the neighbors expressed support for the project.

¶ 18 Closed Record SEPA Appeal Hearing. In April, ECP wrote the County's attorney to object to the BOA's stated intent to hold only a closed record hearing. ECP acknowledged that the County had recently amended its code to eliminate the established procedures for an open record hearing. ECP argued that the closed record SEPA appeal was unlawful under RCW 36.70B.020 and the relevant County codes. ECP also asked the County to explain the discrepancies and apparent alterations in the 2008 SEPA checklist. The County's attorney responded by directing ECP to chapter 15A.07 of the KCC.

¶ 19 The County also issued a memorandum to the BOA regarding the County's new SEPA procedures! The County's attorney explained that KCC 15A.07.010 and .020 required a closed record process with only written briefs from the parties. Specifically, the County's...