Leschi Imp. Council v. Washington State Highway Commission, No. 42766

• Court: United States State Supreme Court of Washington
• Writing for the Court: UTTER; HAMILTON; FINLEY; HALE
• Citation: 84 Wn.2d 271,525 P.2d 774
• Parties: LESCHI IMPROVEMENT COUNCIL et al., Petitioners/Appellants, and Samuel S. Cook et al., Plaintiffs/Appellants, v. WASHINGTON STATE HIGHWAY COMMISSION et al., Respondents.
• Docket Number: No. 42766
• Decision Date: 22 August 1974

Page 271

84 Wn.2d 271 525 P.2d 774 LESCHI IMPROVEMENT COUNCIL et al., Petitioners/Appellants,
and
Samuel S. Cook et al., Plaintiffs/Appellants,
v.
WASHINGTON STATE HIGHWAY COMMISSION et al., Respondents. No. 42766. Supreme Court of Washington, En Banc. Aug. 22, 1974.
Rehearing Denied Dec. 10, 1974.

Page 272

[525 P.2d 777] Schweppe, Doolittle, Krug, Tausend Beezer & Beierle, Robert R. Beezer, Thomas H. Grimm, Seattle, for appellants.

Slade Gorton, Atty. Gen., Thomas R. Garlington, Robert M. McIntosh, Olympia, for respondents.

UTTER, Associate Justice.

This is an appeal from a judgment dismissing an action to review a hearing relating to issues of limited access and design of a limited access highway conducted byu the Washington State Highway Commission. The purpose of the hearing was to establish that segment of Interstate Highway 90 (I--90/SR90) which extends from the west shore of Mercer Island to the point where the highway will intersect with Interstate Highway 5 in Seattle, as a limited access facility.

The plaintiffs/appellants allege they are abutting property owners entitled to review of the highway commission's findings and order pursuant to the express provisions of RCW 47.52.195, limiting review of such findings and order to 'an abutting owner.' The petitioner/appellants, on the other had, challenge the findings and order insofar as it relates to the overall design of the highway not related to limited access questions through a petition for a writ of certiorari. They concede they are not abutting property owners entitled to review under RCW 47.52.195, but allege they are directly affected by noise and air pollution from design defects of the proposed highway. They seek to review the applicability of the provisions of the State Environmental Policy Act of 1971 (SEPA), RCW 43.21C, and 47.04.110--47.04.130 to the proceedings to establish the limited access highway.

In the area of design, RCW 47.52.131 provides that when a state plans a limited access facility through a county or an incorporated city or town, it shall give careful consideration

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to the counties' or cities' comprehensive plans, land use patterns, present potential traffic volume of county roads and city streets crossing the proposed facility, origin and destination traffic surveys, existing utilities, the physical appearance the facility will present, and other pertinent surveys, and shall present to the city or county a report showing how these factors have been taken into account and how the proposed facility will serve public convenience and necessity.

Petitioners and plaintiffs allege two errors in the conduct of the hearing. They [525 P.2d 778] argue that all witnesses were not sworn as required by RCW 47.52.135 and that the department of highways had not prepared, nor had the highway commission considered, an adequate environmental impact statement. ¹

The respondents challenged the standing of both plaintiffs and petitioners to seek review, contending that none of them was an abutting owner within the meaning of RCW 47.52.195, and that the statutory provision limiting review to abutting owners is exclusive for all issues in this case.

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The trial court held that the plaintiffs are not abutting owners who have a right to judicial review under the limited access statute but concluded that the petitioners have a right to obtain review of the proceeding by certiorari insofar as the applicability of SEPA is concerned because they are affected by noise and noxious fumes emanating from the motor vehicles which use the highway. The court also found the environmental impact statement complied with the requirements of SEPA. We affirm the trial court.

Petitioners complain that all witnesses at the hearing were not sworn as required by RCW 47.52.135. The general rule is that objections or questions which have not been raised or urged in the proceedings before the administrative agency or body will not be considered by the court on review of the order of such agency or body. State ex rel. Northeast Transp. Co. v. Abel, 10 Wash.2d 349, 116 P.2d 522 (1941). The petitioners made no objection to the procedure followed at the limited access hearing in permitting members of the public to speak without being placed under oath. A claim that an administrative agency has admitted evidence which was improperly taken cannot be reviewed by the court unless there was an objection at the time it was taken or a motion to strike it out. Great Northern Ry. v. Department of Public Works, 137 Wash. 548, 242 P. 1092 (1926).

The petitioners have standing to bring this action on a basis other than the language of the limited access act. There is substantial evidence in the record to support the trial court's finding that petitioners are adversely affected by the noise and noxious fumes from the proposed highway and, as persons directly affected, they therefore have standing to raise the SEPA issues. Loveless v. Yantis, 82 Wash.2d 754, 513 P.2d 1023 (1973).

The applicability of SEPA to existing authorizations of all branches of government of this state does not open the door to irresponsible use of the provisions of SEPA to unjustly delay projects. Laws of 1973, 1st Ex.Sess., chapter 179, section 2 established a procedure which sharply curtails belatedchallenges

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to governmentally approved private projects where there is a question about the noncompliance with the provisions of SEPA. Failure to start [525 P.2d 779] action within 60 days of final publication of notice of a major action significantly affecting the quality of the environment, published in proper form, bars an action to set aside, enjoin, review or otherwise challenge any such action of a governmental agency with respect to any private project on grounds of noncompliance with SEPA.

Under the same circumstances, the failure to timely proceed on grounds of violation of the provisions of SEPA against government projects can be a bar to such suits by application of the doctrine of laches. New York v. United States, 337 F.Supp. 150, 160 (E.D.N.Y.1972), further proceedings, 344 F.Supp. 929 (E.D.N.Y.1972); Clark v. Volpe, 342 F.Supp. 1324 (E.D.La. 1972), aff'd, 461 F.2d 1266 (5th Cir. 1972). Application of the doctrine of laches is on a case-by-case basis. Where a public project has not progressed to the point where the costs of altering or abandoning such a project would certainly outweigh the benefits of the application of environmental concerns over preservation of the ecology, a court has refused to bar a suit by application of the doctrine of laches. Arlington Coalition on Transp. v. Volpe, 458 F.2d 1323 (4th Cir. 1972). Here the suit was brought on February 19, 1971, and the applicable statutes were in effect on January 1, 1970. The court sought to balance the public interest in the outcome of the suit against the harm caused by delay in bringing the suit.

The petitioners here have standing to raise SEPA issues in proceedings that are initiated under RCW 47.52 because the provisions of SEPA are engrafted onto the existing statutory authorizations. (RCW 43.21C.060.)

In Calvert Cliffs' Coordinating Comm., Inc. v. United States Atomic Energy Comm'n, 146 U.S.App.D.C. 33, 449 F.2d 1109, 1112 (1971), the court commented on the effect of similar language in the National Environmental Policy Act (NEPA).

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NEPA, first of all, makes environmental protection a part of the mandate of every federal agency and department. The Atomic Energy Commission, for example, had continually asserted, prior to NEPA, that it had no statutory authority to concern itself with the adverse environmental effects of its actions. Now, however, its hands are no longer tied. It is not only permitted, but compelled, to take environmental values into account. Perhaps the greatest importance of NEPA is to require the Atomic Energy Commission and other agencies to Consider environmental issues just as they consider other matters within their mandates.

(Footnote omitted.) The prime sponsor of NEPA, Senator Henry M. Jackson, stated: 'The bill specifically provides that its provisions are supplemental to the existing mandates and authorizations of all federal agencies. This constitutes a statutory enlargement of the responsibilities and the concerns of all instrumentalities of the Federal Government.' 115 Cong.Rec. 19,009 (daily ed. July 10, 1969).

The concern of the legislature regarding application of environmental legislation to existing laws relating to the highway department is emphasized by the fact that two separate laws stressing environmental concerns are applicable to them. RCW 47.04.010--47.04.130 specifically applies to every case where a state highway is to be constructed in a new location or where a state highway reconstruction project will require additional right of way. These sections further provide that if one or more hearings have occurred prior to the effective date of the act that the department shall prepare an environmental report prior to conducting the next public hearing. RCW 47.04.120. Under this statute the areas the report is to consider are identical to those set forth in SEPA, RCW 43.21C.030(2)(c)(i)--(v).

SEPA, as well, is applicable by its specific terms where it 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 [525 P.2d 780] forth

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in this chapter . . .' RCW 43.21C.030. SEPA further directs that '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 . . .' RCW 43.21C.060.

Respondents concede SEPA is applicable to the highway commission's findings and order and that adoption of the access plan must be regarded as an action significantly affecting the quality of the environment....