Juanita Bay Valley Community Ass'n v. City of Kirkland, 1955--I

• Decision Date: 04 June 1973
• Docket Number: No. 1955--I,1955--I
• Citation: 9 Wn.App. 59,510 P.2d 1140
• Parties: , 5 ERC 1769 JUANITA BAY VALLEY COMMUNITY ASSOCIATION, a voluntary association, and its Individually named members, et al., Appellants, v. The CITY OF KIRKLAND, a municipal corporation, et al., Respondents.
• Court: Washington Court of Appeals

Page 59

9 Wn.App. 59

510 P.2d 1140, 5 ERC 1769

JUANITA BAY VALLEY COMMUNITY ASSOCIATION, a voluntary association, and its Individually named members et al., Appellants, v. The CITY OF KIRKLAND, a municipal corporation, et al., Respondents.

No. 1955--I.

Court of Appeals of Washington, Division 1, Panel One.

June 4, 1973.

Rehearing Denied Sept. 18, 1973.

Schroeter, Jackson, Goldmark, Bender, Anderson, Whelan, Brotman & Leed, P.S., Roger M. Leed, Seattle, for appellants.

Powell, Livengood, Dunlap & Silvernale, Robert P. Tjossem, Kirkland, for respondents Kirkland Sand & Gravel, G. L. Stubenrauch and Van A. Smith.

Slade Gorton, Atty. Gen., Charles B. Roe, Jr., Charles W. Lean, Asst. Attys. Gen., Olympia, amicus curiae.

Ostrander, Van Eaton, Thomas & Ferrell, Ralph I. Thomas, Kirkland, for City of Kirkland.

SWANSON, Chief Judge.

Does the State Environmental Policy Act of 1971 (SEPA) (RCW 43.21C) require branches of government, specifically municipalities, to exercise legislative discretion with reference to the issuance of land use permits otherwise available as a matter of right in order to assist in the implementation of the state's environmental policy? We hold that it does.

This is an appeal by a group of property owners, as individuals and as an organization called the Juanita Bay Valley Community Association (Association), ¹ from the trial court's denial of their application for a writ of mandamus and ancillary relief to halt grading, excavating and filling activity commenced by Kirkland Sand & Gravel, Inc. (KSG), pursuant to a grading permit issued by the City of Kirkland (City). The Association's claim for relief is based primarily upon its allegations that the City violated SEPA and the Shoreline Management Act of 1971 (SMA) (RCW 90.58) in issuing a grading permit to KSG.

The members of the Association own homes and property adjacent to a gravel pit operation which has been operated by KSG since 1936 on a portion of a 55-acre tract of land which includes a stream, generally referred to as Forbes Creek, and its adjoining marshlands, located about three-fourths of a mile east of Lake Washington. In early 1972, a plan to convert the gravel pit site into an industrial park was revealed. When KSG obtained a permit to excavate and grade its property, the local neighborhood residents attempted to persuade the Kirkland city council to withdraw the permit, but the council refused. Thereafter, the Association was formed, and it commenced suit to preserve what it describes as 'a fragile marsh and wildlife habitat.'

The Association's complaint sought a writ of mandamus directing the City to revoke KSG's grading and excavating permit and requiring the immediate cessation of all activities authorized by this permit. The complaint presented four major theories in support of the relief requested. First the Association alleged that the City failed either to consider or obtain what has become commonly referred to as an Environmental Impact Statement, which is procedurally required by SEPA when a branch of the state government, such as the City, recommends or reports on proposals amounting to 'major actions significantly affecting the quality of the environment.' RCW 43.21C.030(c). Secondly, the Association asserted that the marshland area adjacent to Forbes Creek is an 'associated wetland' within the meaning of SMA and therefore KSG must obtain a permit from the proper governmental agency before undertaking any excavating, grading or filling because such activity amounts to a 'substantial development' on 'shorelines' of the state. RCW 90.58.030(2)(f); RCW 90.58.140(2). Third, the Association claimed an applicable city ordinance was disregarded by the council when it approved the issuance of the grading permit. Finally, the Association contended that the grading permit was invalid because of an apparent conflict of interest on the part of one of the city councilmen who voted to approve the permit. The trial court made findings of fact and conclusions of law adverse to the Association's contentions, denied the requested relief, and dismissed the complaint. This appeal followed.

The appellant Association makes 65 separate assignments of error, 35 of which are directed to findings of fact, and 6 of which are assigned to the trial court's refusal to make certain requested findings. In addition, appellant assigns error to all of the court's conclusions of law except that relating to the court's jurisdiction. Error is also assigned to the dismissal of the complaint and to the trial court's order denying the appellant's motion for a new trial. Appellant argues its numerous claims of error in the context of the four principal theories outlined above, each of which is directed to the basic contention that the grading permit was unlawfully issued to KSG and ought to be revoked.

STATE ENVIRONMENTAL POLICY ACT OF 1971

Appellant's first major theory is that the grading permit was issued in violation of the policy and the procedural mandate of SEPA inasmuch as no Environmental Impact Statement was prepared. The respondents KSG and the City essentially argue that (1) the strict procedural requirements of SEPA do not apply to the issuance of the grading permit, or (2) if they do, the facts as determined by the trial court make it clear an Environmental Impact Statement was not necessary in this case. The state Attorney General, appearing specially as amicus curiae, takes the position that it was incumbent upon the City, in making its decision not to prepare an Environmental Impact Statement, to Consider environmental factors under procedures made applicable to all municipalities by the express language of SEPA such that a failure to do so necessitates a remand of the issue to the City.

SEPA is the state of Washington's most fundamental expression of environmental policy. See Stempel v. Department of Water Resources, 82 Wash.2d 109, 508 P.2d 166 (1973). In the first paragraph of RCW 43.21C.020, the legislature expresses recognition of man's dependence upon the environment, the impact of his activity upon it, and the importance of restoring and maintaining environmental quality. The legislature then declares:

that it is the continuing policy of the state of Washington . . . to use all practicable means and measures . . . in a manner calculated to: (a) Foster and promote the general welfare; (b) to create and maintain conditions under which man and nature can exist in productive harmony; and (c) fulfill the social, economic, and other requirements of present and future generations of Washington citizens.

The statute provides in subsection 2:

In order to carry out the policy set forth in this act, it is the continuing responsibility of the state of Washington and all agencies of the state to use all practicable means, consistent with other essential considerations of state policy, to improve and coordinate plans, functions, programs, and resources to the end that the state and its citizens may:

(a) Fulfill the responsibilities of each generation as trustee of the environment for succeeding generations (b) Assure for all people of Washington safe, healthful, productive, and esthetically and culturally pleasing surroundings;

(c) Attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences;

(d) Preserve important historic, cultural, and natural aspects of our national heritage;

(e) Maintain, wherever possible, an environment which supports diversity and variety of individual choice;

(f) Achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life's amenities; and

(g) Enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.

The legislative purpose of SEPA declared in RCW 43.21C.010 and the statement of policy set forth in RCW 43.21C.020 are implemented by RCW 43.21C.030 which states in pertinent part:

The legislature authorizes and directs that, to the fullest extent possible: (1) The policies, regulations, and laws of the state of Washington shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2) all branches of government of this state, including . . . municipal . . . corporations . . . shall:

* * *

* * *

(c) Include in every recommendation or report on proposals for legislation and other major actions significantly affecting the quality of the environment, a detailed statement by the responsible official on:

(i) the environmental impact of the proposed action;

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented;

(iii) alternatives to the proposed action;

(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity; and

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented Such procedural provisions of SEPA must not be overlooked. RCW 43.21C.030(1) makes it clear that all regulations and laws of the state must be read in light of the provisions of SEPA:

The policies, regulations, and laws of the state of Washington shall be interpreted and administered in accordance with the policies set forth in this chapter, . . .

RCW 43.21C.060 restates this duty:

The policies and goals set forth in this chapter are supplementary to those set forth in existing authorizations of all branches of government of this state, including state agencies, municipal and public corporations, and counties.

In short, the detailed procedural requirements of SEPA, specifically RCW 43.21C.030, are directly imposed upon all branches of state government, including municipalities.

In order to facilitate an understanding of our discussion concerning the requirements of SEPA in the...