Lakeside Industries v. Thurston County
| Citation | 119 Wash.App. 886,83 P.3d 433 |
| Decision Date | 13 January 2004 |
| Docket Number | No. 29188-6-II.,29188-6-II. |
| Court | Washington Court of Appeals |
| Parties | LAKESIDE INDUSTRIES, a joint venture of Red Samm Mining Co., Inc., a Washington corporation, and Black River Sand & Gravel, Inc., a Washington corporation; Nielsen Pacific Ltd., a Washington corporation; and Holroyd Company, Inc., a Washington corporation, Respondents/Cross-Appellants, v. THURSTON COUNTY, a municipal corporation; Friends Of Nisqually, a Washington non-profit corporation; and The Nisqually Indian Tribe, Appellants/Cross-Respondents. |
Elizabeth Petrich, Attorney at Law, Barnett N. Kalikow, Kalikow & Gusa PLLC, Olympia, WA, Bill Tobin, Attorney at Law, Vashon, WA, for Appellants.
Alexander Weal Mackie, Perkins Coie LLP, Olympia, WA, John William Hempelmann, Cairncross & Hempelmann PS, Seattle, WA, for Respondents.
Lakeside Industries applied for a special use permit to construct an asphalt manufacturing and recycling plant in the Nisqually Valley. Although the County opposed the project, it issued Lakeside a mitigated determination of non-significance under the State Environmental Policy Act (SEPA). Finding that the project met the specific conditions of the county code, a hearing examiner approved the permit. But the county commissioners reversed the decision, concluding that the project was not consistent with the general purposes of the Nisqually Sub-Area Plan, a plan the County adopted to preserve the agricultural and pastoral character of the valley. Lakeside appealed to the Mason County Superior Court, which reinstated the hearing examiner's decision to allow asphalt manufacturing but rejected Lakeside's request to recycle asphalt. The County and several citizen groups appeal; Lakeside appeals the denial of its request to recycle asphalt. Because the commissioners lacked legal authority to apply the sub-area plan's general purpose to deny a use the County's zoning code specifically allowed, we affirm the trial court.
Lakeside applied for a Special Use Permit to build an asphalt production and recycling facility in the Nisqually Valley Planning Area. The proposed facility would be located within the Holroyd gravel mine, which operates within the area under a valid use permit allowing the facility to expand mineral extraction operations. The Holroyd site is subject to the Nisqually Sub-Area Plan. Under the sub-area plan, the County evaluates special land uses for compatibility with the "Agricultural/Pastoral Character" of the Nisqually Valley. Clerk's Papers (CP) at 401.
The Board of County Commissioners adopted the sub-area plan in 1992. The County readopted it in 1995, when it amended its Comprehensive Plan to comply with Washington's Growth Management Act.
The proposed asphalt facility would be approximately two miles upwind and upriver from the Nisqually National Wildlife Refuge, home to numerous wildlife species and endangered salmon. The groundwater around the mine site is between four and fifteen feet below the extremely porous surface. The site is also located in the County's aquifer protection district. The County has spent approximately $2.4 million to purchase development rights in the immediate area adjacent to the proposed facility to prevent environmental damage.
Thurston County staff conducted a project environmental review and concluded the proposed asphalt facility did not comply with the sub-area plan. Specifically, the reviewing agency denied Lakeside's use permit request after concluding the facility failed to meet the sub-area plan policies regarding rural environment, commercial development, and asphalt reprocessing. Local citizens were also skeptical about whether the asphalt plant was consistent with the sub-area plan policies. Nevertheless, the County issued a Mitigated Determination of Non-Significance, concluding the asphalt plant would not have probable adverse significant impacts on the environment. A local citizen group, Friends of the Nisqually (Friends), and the Nisqually Indian Tribe appealed the non-significance determination, asking the County to produce a full Environmental Impact Statement.
On review, the Thurston County hearing examiner upheld the non-significance determination and granted the use permit after concluding the project was consistent with applicable county plans and codes. Among other things, the hearing examiner considered area zoning and project impacts to groundwater, drainage, traffic, flooding, noise, and air quality. Friends and the Nisqually Tribe appealed the use permit approval to the Board.
After a closed hearing, the Board concluded the proposed Lakeside asphalt plant was not consistent with sub-area plan policies because: (1) the sub-area plan generally prohibits new industrial uses, (2) the sub-area plan specifically prohibits asphalt recycling, (3) the existing extraction gravel site never processed asphalt, and (4) the proposed asphalt plant does not preserve the area's existing rural character. Accordingly, on September 17, the Board reversed the hearing examiner's approval of Lakeside's use permit. On October 24, Lakeside appealed the Board's use permit denial to Mason County Superior Court under Washington's Land Use Petition Act (LUPA).1
On November 9 and 14, Friends and the Nisqually Tribe filed answers to Lakeside's LUPA petition and challenged the hearing examiner's non-significance determination. Friends and the Nisqually Tribe also moved to dismiss or change venue, claiming Mason County Superior Court lacked jurisdiction to hear Lakeside's LUPA petition based on article IV, section 6 of the Washington Constitution and RCW 4.12.010.2
The Mason County Superior Court denied a venue change, ruling that the Board was not a "court" under the constitutional language. The court also dismissed Friends' and the Nisqually Tribe's non-significance determination challenge because they had not filed their appeal within LUPA's 21-day statutory time limit.
After considering the case on the merits, the court reversed the Board's decision to deny Lakeside's use permit, but it concluded that the sub-area plan precluded asphalt recycling within the plan's area.
When reviewing a superior court's decision on a land use petition, we stand in the same position as the superior court. Biermann v. City of Spokane, 90 Wash.App. 816, 821, 960 P.2d 434 (1998) (citation omitted). A party who seeks relief under LUPA carries the burden of meeting one of the standards in RCW 36.70C.130(1). Schofield v. Spokane County, 96 Wash.App. 581, 586, 980 P.2d 277 (1999). Under LUPA, we review the decision of the local jurisdiction's body or officer with the highest level of authority to make the determination, including those with authority to hear appeals. RCW 36.70C.020(1); Citizens to Preserve Pioneer Park LLC v. City of Mercer Island, 106 Wash.App. 461, 474, 24 P.3d 1079 (2001). Here, the Board did not alter any of the hearing examiner's findings of fact. Accordingly, the Board acted as an appellate body in its review and it was bound by the hearing examiner's findings of fact. Maranatha Mining, Inc. v. Pierce County, 59 Wash.App. 795, 802, 801 P.2d 985 (1990).
The relevant standards for granting relief are, therefore, whether the Board erroneously interpreted the law and whether the Board made a clearly erroneous application of the law to the facts. RCW 36.70C.130(1)(b), (d). Whether the Board erroneously interpreted the law is a question of law reviewed de novo. Schofield, 96 Wash. App. at 586, 980 P.2d 277. And the Board has made a clearly erroneous application of law to the facts if we are left with the definite and firm conviction that it committed a mistake. Schofield, 96 Wash.App. at 586, 980 P.2d 277.
Generally, a specific zoning ordinance will prevail over an inconsistent comprehensive plan. Weyerhaeuser v. Pierce County, 124 Wash.2d 26, 43, 873 P.2d 498 (1994) (citing Cougar Mountain Assoc. v. King County, 111 Wash.2d 742, 757, 765 P.2d 264 (1988)). Because a comprehensive plan is a guide and not a document designed for making specific land use decisions, conflicts concerning a proposed use are resolved in favor of the more specific regulations. Citizens for Mount Vernon v. City of Mount Vernon, 133 Wash.2d 861, 873, 947 P.2d 1208 (1997). Thus, to the extent the comprehensive plan prohibits a use that the zoning code permits, the use is permitted. Weyerhaeuser, 124 Wash.2d at 43, 873 P.2d 498. But where the zoning code itself expressly requires a site plan to comply with a comprehensive plan, the proposed use must satisfy both the zoning code and the comprehensive plan. See Weyerhaeuser, 124 Wash.2d at 43,
Thurston County Code (TCC) 20.54.040 [zoning code] states in part:
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