Polygon Corp. v. City of Seattle, 44536

• Decision Date: 18 May 1978
• Docket Number: No. 44536,44536
• Citation: 90 Wn.2d 59,578 P.2d 1309
• Parties: , 11 ERC 1689, 8 Envtl. L. Rep. 20,561 The POLYGON CORPORATION, Appellant, v. The CITY OF SEATTLE, a Municipal Corporation, and Alfred Petty, Superintendent of Buildings, Respondents, and Daniel M. Caine, Susan C. Gerrard, Marie Chard, Robert H. Jacobson, Edward J. Wahl, Joan Heimbigner Meyer, Arthur M. Skolnik, Charles F. Mansfield, Vernon G. Klockzein, Gerald A. Cohen, Douglass Raff, and the United South Slope Residents, Intervenors.
• Court: Washington Supreme Court

Page 59

90 Wn.2d 59

578 P.2d 1309, 11 ERC 1689, 8 Envtl.

L. Rep. 20,561

The POLYGON CORPORATION, Appellant, v. The CITY OF SEATTLE, a Municipal Corporation, and Alfred Petty, Superintendent of Buildings, Respondents and Daniel M. Caine, Susan C. Gerrard, Marie Chard, Robert H Jacobson, Edward J. Wahl, Joan Heimbigner Meyer, Arthur M Skolnik, Charles F. Mansfield, Vernon G. Klockzein, Gerald A. Cohen, Douglass Raff, and the United South Slope Residents, Intervenors.

No. 44536.

Supreme Court of Washington,En Banc.

May 18, 1978.

Bogle & Gates, Ronald E. McKinstry, Ronald T. Schaps, E. McDuff Archibald, Seattle, for appellant.

Hillis, Phillips, Cairncross, Clark & Martin, P. S., Susan R. Agid, Jerome L. Hillis, J. Roger Nowell, Asst. Corp. Counsel, Seattle, for respondents.

HICKS, Justice.

The Polygon Corporation brought this action against the City of Seattle and the Superintendent of Buildings to review a decision denying Polygon's application for a building permit. The denial was based on the proposed building's adverse impact on the environment. The superintendent found substantive authority to deny the application in the State Environmental Policy Act of 1971 (SEPA). RCW 43.21C. Expressing agreement, the trial court denied Polygon's petition for a writ of mandamus and granted the City's motion for summary judgment. We accepted direct review and we affirm the trial court.

In 1974, Polygon laid plans for the construction of a 13-story condominium on Queen Anne Hill property zoned MRH (Multiple Residence High Density Zone). Prior to filing its application for a building permit, Polygon submitted an "environmental information worksheet" to the building department. The department determined that the issuance of a building permit would be "major (action) significantly affecting the quality of the environment . . . ." RCW 43.21C.030(2)(c). This determination, unchallenged by Polygon, made necessary the preparation of an Environmental Impact Statement (EIS) concerning the proposed project. A draft EIS was prepared and circulated.

Believing the draft EIS indicated some environmental problems, the superintendent scheduled a meeting for January 27, 1975, with Polygon, its architects, and opponents of the condominium to discuss possible changes in the plans that would make the project more acceptable. On January 22, 1975, after the meeting had been arranged, an article appeared in a local newspaper reporting the mayor's opposition to the Polygon project.

Blaine McCool, one of Polygon's architects, met with the superintendent the day following publication of the mayor's views. According to McCool's affidavit, the superintendent stated that because of the mayor's opposition, he would announce that the permit application would be denied. On the other hand, the superintendent asserts that his decision to deny the permit was not reached until it was announced in May.

On April 8, 1975, Polygon filed its building permit application with the building department. A final EIS was published April 14, 1975. It disclosed that the proposed project would have a number of adverse environmental impacts of varied significance including, among others, view obstruction, excessive bulk and excessive relative scale, increases in traffic and noise, and shadow effect.

The EIS also discussed several alternatives to the proposed project. These included construction of a four- and eight-story building on the proposed site and construction of the 13-story building on a different site. The design alternatives were less adverse in environmental terms. In addition to the technical information, the EIS also included the comments of numerous Queen Anne Hill residents who opposed the project.

By written decision issued May 9, 1975, the superintendent denied the application, stating that the project was inconsistent with the aims of SEPA. The most significant impact was found to be visual, but additional factors listed were the adverse effects on property values and the trend toward more intense land use on Queen Anne Hill. Other impacts disclosed by the EIS were found to be acceptable.

On August 15, 1975, Polygon petitioned the King County Superior Court for a writ of review and mandamus. By stipulation, several persons, individually, and United South Slope Residents, a citizen's group, intervened. After reviewing the record and considering the argument of the parties, the trial court issued an oral opinion denying the writ of mandamus and granting summary judgment to the City and intervenors. The trial court found that: (1) SEPA conferred on the superintendent the discretion to deny building permits on the basis of environmental considerations; (2) the decision to deny the permit here was not "arbitrary and capricious"; and (3) the doctrine of appearance of fairness did not apply to the building permit application process. Judgment was entered accordingly.

Polygon first contends that SEPA does not create in the superintendent the authority to deny a building permit which he is otherwise directed to issue under applicable laws and regulations. We disagree.

SEPA sets forth a state policy of protection, restoration and enhancement of the environment. RCW 43.21C.020. Since SEPA's enactment, this court has on a number of occasions discussed the significance of that policy and its application to subordinate agencies of government. Stempel v. Department of Water Resources, 82 Wash.2d 109, 508 P.2d 166 (1973); Eastlake Community Council v. Roanoke Assocs., Inc., 82 Wash.2d 475, 490, 513 P.2d 36, 76 A.L.R.3d 360 (1973); Leschi Improvement Council v. State Highway Comm'n, 84 Wash.2d 271, 279-80, 525 P.2d 774 (1974).

Procedurally, the environmental protection policy is to be implemented by the preparation and circulation of an environmental impact statement disclosing the environmental impacts of the proposed action. RCW 43.21C.030(2)(c). Polygon urges that this procedural duty is all that SEPA requires. It contends that SEPA serves only an "informational" purpose and does not confer substantive authority to act with reference to the environmental impacts disclosed. Such a reading of SEPA would thwart the policies it establishes and would render the provision that "environmental amenities and values will be given appropriate consideration in decision making" a nullity. RCW 43.21C.030(2)(b).

We have said that SEPA requires the disclosure and full consideration of environmental impacts in governmental decision making. Norway Hill Preservation & Protection Ass'n v. King County Council, 87 Wash.2d 267, 552 P.2d 674 (1976). That mandate would be meaningless under the facts of this matter if the superintendent was powerless to decide in the manner that "full consideration of environmental impacts" impelled. It necessarily follows that SEPA confers substantive authority to the deciding agency to act on the basis of the impacts disclosed.

This view was presaged by the Court of Appeals when it stated:

The essential point is that SEPA requires the City, acting through its city council, actually to consider the various environmental factors. The change in the substantive law brought about by SEPA introduces an element of discretion into the making of decisions that were formerly ministerial, such that even if we assume, arguendo, that the issuance of a grading permit was, prior to SEPA, a ministerial, non-discretionary act, SEPA makes it legislative and discretionary.

Juanita Bay Valley Community Ass'n v. Kirkland, 9 Wash.App. 59, 73, 510 P.2d 1140, 1149 (1973), petition for review denied, 83 Wash.2d 1002 (1973).

A 1977 amendment to RCW 43.21C.060 (Laws of 1977, 1st Ex.Sess., ch. 278, p. 961), though not applicable to this case, strongly indicates this to be the legislature's view. RCW 43.21C.060, which establishes that the policies and goals of SEPA are supplementary to existing authorizations, was amended by the addition of the proviso which significantly limits the government's authority to condition or deny action. The addition of the limiting proviso evinces the legislature's understanding that in the absence of such limitation, very broad discretion to condition or prohibit was conferred by the act.

Polygon insists, however, that SEPA does not confer discretion here where prior to its enactment the superintendent's duties were ministerial. State ex rel. Craven v. Tacoma, 63 Wash.2d 23, 27, 385 P.2d 372 (1963). The Seattle Municipal Code § 3.03.020(e) provides in pertinent part: If the superintendent of buildings is satisfied that the work described in an application for permit and the plans filed therewith conform to the requirements of this Code and other perti(n)ent laws and ordinances . . . he shall issue a permit therefor to the applicant . . . .

RCW 43.21C.060, however, added to that authority by providing:

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 . . . municipal . . . corporations . . . .

(Italics ours.) Thus, SEPA has been said to "overlay" the requirements which existed prior to its adoption. Sisley v. San Juan County, 89 Wash.2d 78, 83, 569 P.2d 712 (1977).

Since 1971 when it was enacted, SEPA is one of the "pertinent laws" which the superintendent must be satisfied is met before he issues a building permit. To the extent that the issuance of a building permit is a "major action significantly affecting the quality of the environment", that issuance is no longer a ministerial act.

We hold that SEPA confers on the City, acting through its superintendent of buildings, the discretion to deny a building permit application on the basis of adverse environmental impacts disclosed by an EIS.

Polygon next contends that since its project complied with existing zoning regulations, the denial of its building permit application amounts to a de facto rezone of its property. Accordingly, it argues that the...