Meridian Minerals Co. v. King County

• Decision Date: 07 May 1991
• Docket Number: No. 10322-6-III,10322-6-III
• Parties: MERIDIAN MINERALS COMPANY, a Montana corporation; and Burlington Northern Railroad Company, a Delaware corporation, Appellants, v. KING COUNTY, Washington, a municipal corporation, and its administrative department, King County Building and Land Development Division, and Friends of Veazie Valley, a non-profit corporation, Respondents.
• Court: Washington Court of Appeals

Page 195

61 Wn.App. 195

810 P.2d 31

MERIDIAN MINERALS COMPANY, a Montana corporation; and Burlington Northern Railroad Company, a Delaware corporation, Appellants, v. KING COUNTY, Washington, a municipal corporation, and its administrative department, King County Building and Land Development Division, and Friends of Veazie Valley, a non-profit corporation, Respondents.

No. 10322-6-III.

Court of Appeals of Washington Division 3, Panel Three.

May 7, 1991.

As Amended June 12, 1991.

Review Denied Oct. 1, 1991.

John W. Hempelmann, Alan L. Wallace, Cairncross, Ragen & Hempelmann, Seattle, Kurt W. Kroschel, Daniel L. Kinerk, Kurt W. Kroschel & Associates, Bellevue, for appellants.

Norman Maleng, King County Prosecutor, Ann Schindler, Deputy, Seattle, David Boerner, Enumclaw, for respondents.

THOMPSON, Judge.

Burlington Northern Railroad Company (BNRR) and Meridian Minerals Company (Meridian) appeal a partial summary judgment of the Chelan County Superior Court in favor of King County, its agency, King County Building and Land Development Division (BALD), and Friends of Veazie Valley (Friends). The trial court upheld a decision by BALD refusing to process a grading permit as submitted by Meridian. We hold the proposed use by Meridian was a prohibited enlargement of the nonconforming use and affirm the decision of BALD and the judgment.

All parties stipulated to the facts deemed pertinent for purposes of summary judgment. Basically, the facts stipulated to were those found by BALD and upon which BALD based its letter decision. ¹ An agreed order incorporating the stipulation was entered with the trial court. For purposes of this appeal, all parties stipulated they would not assert any issues of fact.

The property at issue is located on the Enumclaw Plateau in King County. Sometime between 1905 and 1908, rock quarry operations commenced on the property, originally on that portion which constituted the railroad right of way. Between 1917 [810 P.2d 33] and 1958, when Northern Pacific Railway Company was the owner, approximately 500,000 cubic yards of rock was extracted. The amount of rock quarried varied significantly from year to year, with only 15,000 cubic yards being quarried between 1953 and 1959. ² Removal was almost exclusively by rail. More than 98 percent of the quarried rock was used by Northern Pacific Railroad Company for constructing, repairing and maintaining its own railroad facilities. Approximately 1.2 percent was sold to governmental entities.

In 1958, the property and surrounding area were first zoned by King County resolution. The zoning classification was agricultural and quarrying was prohibited except by special permit. Since 1958, the quarry has operated as a nonconforming land use in an agricultural zone.

In 1971, BNRR owned the quarry. BNRR and adjacent owners applied to the King County Council for a rezone to permit "commercial" quarrying. In the rezone application, the railroad admitted the quarry had been used exclusively for its own use. In 1972, after completion of an area-wide zoning study, BNRR's rezone application was denied.

An annual grading permit for operating the quarry as a nonconforming use was first required by King County in 1972. In 1980, BNRR and King County negotiated the conditions that were to apply to the grading permit. The negotiated conditions were applied each year thereafter when BNRR, and subsequently Meridian, ³ sought renewal. The conditions limited production, stockpiling, removing, blasting, and quarry use. ⁴

In 1984, Meridian (then a subsidiary of BNRR) initiated a rezone of the property from agriculture to quarry mining or, alternatively, an unclassified permit for commercial quarry operations. BALD determined the proposed zoning change required an environmental impact statement (EIS). An EIS was submitted and its adequacy challenged. The King County hearing examiner found the EIS inadequate and required a supplemental EIS. On appeal, the King County Superior Court upheld the hearing examiner's decision.

Shortly after the King County Superior Court decision, Meridian told BALD it was entitled to operate a commercial quarry without a zoning change. Its argument was based on the nonconforming use rights acquired before 1958. In response, BALD undertook review of the use established and maintained at the quarry before 1958, when the property was first zoned. BALD informed Meridian that regardless of the scope of its nonconforming use rights, a grading permit would still be required.

Meridian submitted an application for a new grading permit in April 1988. The application sought to mine and process 42,500 cubic yards of rock for 2 to 3 months followed by year-round sales: 17,500 cubic yards to be removed by truck (1,500 truck trips, average of 14 trips per day) and 25,000 cubic yards to be transported primarily by rail. Meridian contended BALD was without authority to enforce several of the "1980 conditions" in prior permits. To allow BALD time to review Meridian's permit and still continue quarry operations, BALD issued a permit with the same conditions as those imposed since 1980.

On May 25, 1988, BALD issued a letter decision directing its State Environmental Policy Act (SEPA) Center and Grading Department not to process Meridian's application. BALD concluded the property could not be used in violation of the zoning code except in the same general way it was lawfully used before the zoning took effect. An extensive factual basis for the decision was set forth in the letter decision. Even though BALD concluded it could not issue a grading permit authorizing "commercial use", it agreed to modify prior grading permit conditions in several respects: as to blasting requirements, different conditions would be imposed if environmental review under SEPA demonstrated they were environmentally acceptable; as to use of quarried rock, BALD expressed willingness to negotiate; ⁵ as to Meridian's desire to use a rock crusher, BALD stated if a factual showing were made it was a legitimate accessory use and if SEPA review showed environmental impacts could be controlled, use of the crusher would be authorized; as to production and stockpiling, BALD stated absent an emergency, no more than 10,000 cubic yards of material could leave the site annually ⁶ and no more than 40,000 cubic yards of rock could be produced and stockpiled on the site at any time; ⁷ as to transportation, increased removal by truck would be permitted if environmental review under SEPA demonstrated it was environmentally acceptable.

Without submitting a new permit application, BNRR and Meridian filed a complaint in Chelan County Superior Court ⁸ seeking a judgment declaring BALD's decision contrary to law and petitioning for writ of review and writ of mandate requiring BALD to reconsider Meridian's permit application in conformity with the court's declaration. Friends' motion to intervene was granted. BNRR and Meridian moved for partial summary judgment ordering BALD to process Meridian's grading permit without restricting who may use the rock and to declare that BALD owed the moving parties certain specified duties.

On April 19, 1989, BNRR and Meridian's summary judgment motions were denied. The oral motions of King County and Friends, who sought a declaration that the letter decision was correct as a matter of law, were granted. In August 1989, after the summary judgment order was entered, Meridian filed a motion for reconsideration. CR 59(a)(7). BALD and Friends moved to strike affidavits and exhibits offered in support of reconsideration. The trial court granted the motion to strike, in part, and denied the motion for reconsideration. This appeal by Meridian and BNRR followed.

We first address Meridian's contention the trial court erred in barring additional evidence submitted in support of its motion for reconsideration.

Meridian offered 65 exhibits in support of its motion for reconsideration. The proffered exhibits included 53 historical documents delivered by Meridian's attorneys to BALD in 1988. Meridian argued its motion for reconsideration was based on CR 59(a)(7) ⁹ and additional facts could be submitted even if not newly discovered. King County argued the documents were only a part of the evidence examined by BALD before making its findings, and putting them in the record would be prejudicial, particularly in light of the stipulation the parties entered into for summary judgment purposes.

Although not encouraged, a party may submit additional evidence after a decision on summary judgment has been rendered, but before a formal order has been entered. E.g., Felsman v. Kessler, 2 Wash.App. 493, 498, 468 P.2d 691, review denied, 78 Wash.2d 994 (1970). However, CR 59 does not indicate whether additional evidence may or must be considered in a CR 59(a)(7) motion, nor have we found a Washington case directly on point. Holaday v. Merceri, 49 Wash.App. 321, 330, 742 P.2d 127, review denied, 108 Wash.2d 1035 (1987) held when a motion for reconsideration is brought after a trial has been completed, the court must base its decision on evidence heard at trial. Certainly both a trial and a summary judgment hearing afford the parties ample opportunity to present evidence. Unless discovered after the opportunity passes, the parties should generally not be given another chance to submit additional evidence. In the context of a summary judgment, unlike trial, there is no prejudice to any findings if additional facts are considered. However, as King County asserts, the evidence offered by Meridian could be prejudicial because it was offered in disregard of the parties' stipulation. The stipulation states in relevant part:

[F]or the purposes of this motion the parties agree and stipulate that plaintiffs' pending motion for partial summary judgment challenges only the legality of BALD's decision in light of the facts found by BALD.

(Italics ours.) Therefore, under the facts presented...