Moss v. City of Bellingham

• Decision Date: 17 September 2001
• Docket Number: No. 46863-4-I.,46863-4-I.
• Citation: 109 Wn. App. 6,31 P.3d 703,109 Wash. App. 6
• Parties: Larry MOSS; Michael Frome; Concerned Citizens of Park Ridge, Appellants, v. CITY OF BELLINGHAM, a municipal corporation; Pennbrook Co., an Oregon Corporation; Bellingham 88, LLC, a Washington limited liability company, Respondents.
• Court: Washington Court of Appeals

31 P.3d 703

109 Wash. App. 6

109 Wn. App. 6

Larry MOSS; Michael Frome; Concerned Citizens of Park Ridge, Appellants, v. CITY OF BELLINGHAM, a municipal corporation; Pennbrook Co., an Oregon Corporation; Bellingham 88, LLC, a Washington limited liability company, Respondents.

No. 46863-4-I.

Court of Appeals of Washington, Division 1.

September 17, 2001.

Michael Frome, Larry Moss, Pro Se Appellants.

Dana David, John Belcher, Belcher, Swanson, Lackey, Doran, Lewis, Robertson, Jack Swanson, Voris, Belcher, Swanson & Lackey, Bellingham, for Respondents.

BAKER, J.

A group of Bellingham citizens filed a land use petition challenging the City of Bellingham's decision to issue a preliminary plat approval for a large subdivision after the City issued a Determination of Nonsignificance (DNS) under the State Environmental Policy Act (SEPA). The citizens argued that the project has significant environmental impacts and requires a full environmental impact statement (EIS). The project developers argued that sweeping regulatory changes in 1995 integrating SEPA project review with the Growth Management Act (GMA) enabled the City's planners to rely on existing laws and regulations, and to mitigate the adverse impacts of the project in order to bring it below the threshold for EIS preparation. The trial court affirmed the City's preliminary plat approval, and the citizens appeal. We affirm.

I

This case involves a citizens' challenge to the City of Bellingham's approval of a preliminary plat for the Birch Street subdivision. The property is owned by Bellingham 88 LLC. Pennbrook Company, an Oregon developer, plans to purchase and develop the property.

The proposed project is a 79 acre, 172 lot subdivision. The site generally slopes downward from south to north and is characterized by ridges and swales, with two creeks running through the property. The property was logged by a previous owner, and is now covered with an immature to semi-mature deciduous-coniferous tree canopy. The remnant logging roads are now used as hiking and biking trails. There is a power line on the south boundary, with the adjoining land recently logged. Property to the north is residential, to the west is forested and then residential, and to the east is forested. The project site is located in Area 11 of the Whatcom Falls Neighborhood Comprehensive Plan, adopted by the City of Bellingham in compliance with the Growth Management Act (GMA). The comprehensive plan provides for residential single occupancy in this area with a density of one lot per 20,000 square feet average overall cluster density. Although the area is zoned for residential development, the plan acknowledges that "[t]he steep topography and resultant drainage problems, combined with difficult access routes place limitations on the density of this area. Efforts should be made to mitigate these impacts as this sensitive hillside develops."

The SEPA project review process began when Pennbrook filed an environmental checklist with the City of Bellingham in the fall of 1998. This was soon followed by a formal application for subdivision approval. The Bellingham City Planning and Development Commission held a public meeting to hear concerns about the project and to determine whether additional environmental analysis and mitigation would be necessary. The City's SEPA official, Chris Spens, then mailed a letter to Pennbrook requesting further information in the form of an Environmental Assessment (EA). Pennbrook prepared and submitted an extensive EA detailing the project's environmental impacts, including traffic studies, wetlands assessments, geological engineering reports, and watershed studies. The EA also suggested a number of mitigation measures as part of a revised project proposal. The City circulated the EA to the agencies on its distribution list and requested comments within 14 days.

The day after the City received Pennbrook's EA, Spens issued a Determination of Nonsignificance (DNS) under SEPA. The parties dispute whether the City mailed the DNS to all agencies with jurisdiction. The DNS was published in the Bellingham Herald, and was subject to the same public comment period as the EA. Several agencies submitted comments on the DNS, and more than 200 citizens wrote letters to the City expressing their concern with the DNS and requesting an EIS.

Three weeks after the DNS was issued, the Bellingham Planning and Community Development Department issued a staff report recommending rejection of the preliminary plat application, even with mitigation as proposed in Pennbrook's environmental assessment.¹ The Bellingham Planning and Development Commission held four public hearings and work sessions to consider revisions and modifications to the preliminary plat. The commission eventually recommended to the city council that the preliminary plat be approved subject to a number of new conditions, including larger lot sizes, and preservation of open space corridors, wetlands, and trail systems. The city council then held six more public meetings and work sessions before finally approving a modified preliminary plat. The project as approved by the city council included another increase in minimum lot size and imposed an additional 33 conditions, including the retention of a popular hiking trail through the site.

A group of citizens filed a petition pursuant to the Land Use Petition Act (LUPA)² challenging the City's preliminary plat approval. The trial court ruled in favor of Pennbrook and entered a judgment affirming the City's land use decision. The citizens now appeal.

II

A governmental agency's SEPA threshold determination is reviewed under the "clearly erroneous" standard.³ "A decision is clearly erroneous when the court is `left with the definite and firm conviction that a mistake has been committed.'"⁴ We do not substitute our judgment for that of the decision-making body, but we examine the record in light of public policy contained in the legislation authorizing the decision.⁵ An agency's decision to issue a mitigated DNS and not to require an EIS is accorded substantial weight.⁶

SEPA Framework

SEPA was enacted in 1971 to "promote the policy of fully informed decision making by government bodies when undertaking `major actions significantly affecting the quality of the environment.'"⁷ Contrary to popular belief, "SEPA does not demand a particular substantive result in government decision making[;]" rather, it ensures that environmental values are given appropriate consideration.⁸

Before a local government processes a permit application for a private land use project, it must make a "threshold determination" of whether the project is a "major action significantly affecting the quality of the environment."⁹ A threshold determination, made by the "responsible official" of the "lead agency" reviewing the project, is required for any project constituting a SEPA "action" unless it is "categorically exempt."¹⁰ The lead agency must make its threshold determination based upon information reasonably sufficient to evaluate the environmental impact of a proposal.¹¹ The lead agency first reviews an environmental checklist prepared by the applicant.¹² If the checklist does not contain sufficient information to make a threshold determination, the applicant may be required to submit additional information.¹³ The responsible official may also consider mitigation measures which an agency or the applicant will implement as part of the proposal.¹⁴

All threshold determinations must be documented in a determination of nonsignificance (DNS) or a determination of significance (DS).¹⁵ A DS mandates the preparation of a full EIS. Conversely, a DNS means that no EIS is required.¹⁶ Alternatively, under the "mitigated DNS" process, an applicant may avoid EIS preparation by clarifying, changing, or conditioning the project to mitigate its significant adverse environmental impacts.¹⁷ However, if the project continues to have a significant adverse environmental impact, even with mitigation measures, an EIS shall be prepared.¹⁸

SEPA Regulatory Reform

The seeds of SEPA regulatory reform were sown with passage of the Growth Management Act (GMA) in 1990. The GMA requires Urban Growth Areas (UGAs) to be designated only after preparation of an EIS.¹⁹ In 1995, this fundamental policy change came to fruition when the Legislature enacted the Integration of Growth Management and Environmental Review Act. According to Professor Settle, the Integration Act "seeks to avoid duplicative environmental analysis and substantive mitigation of development projects by assigning SEPA a secondary role to (1) more comprehensive environmental analysis in plans and their programmatic environmental impact statements and (2) systematic mitigation of adverse environmental impacts through local development regulations and other local, state, and federal environmental laws."²⁰

Several provisions of the Integration Act bear directly on this case. RCW 43.21C.240, as implemented by WAC 197-11-158, substantially streamlines the threshold determination process for cities and counties planning under the GMA by authorizing the SEPA official to rely on existing plans, laws and regulations in meeting SEPA requirements:

(1) In reviewing the environmental impacts of a project and making a threshold determination, a GMA county/city may, at its option, determine that the requirements for environmental analysis, protection, and mitigation measures in the GMA county/city's development regulations and comprehensive plan adopted under chapter 36.70A RCW, and in other applicable local, state, or federal laws or rules, provide adequate analysis of and mitigation for some or all of the specific adverse environmental impacts of the project.

While simplifying the project review process, WAC 197-11-158 maintains SEPA's function as an environmental full disclosure law by directing decisionmakers to decide whether the impacts have fully or partially...