Short v. Clallam County

• Decision Date: 12 March 1979
• Docket Number: No. 3060-II,3060-II
• Citation: 22 Wn.App. 825,593 P.2d 821
• Parties: Richard SHORT, Respondent, v. CLALLAM COUNTY, Appellant.
• Court: Washington Court of Appeals

Page 825

22 Wn.App. 825

593 P.2d 821

Richard SHORT, Respondent, v. CLALLAM COUNTY, Appellant.

No. 3060-II.

Court of Appeals of Washington, Division 2.

March 12, 1979.

Grant S. Meiner, Pros. Atty., Craig L. Miller, Deputy Pros. Atty., Port Angeles, for respondent.

David V. Johnson, Niichel & Rutz, Port Angeles, for appellant.

REED, Judge.

In October 1977, Richard Short applied to the Clallam County Board of Commissioners for a permit to construct a 24-stall, 20 by 100-foot mini-warehouse on land lying north of State Highway 101 and east of the Dungeness River Bridge. In his environmental checklist (WAC 197-10-050), Short stated he intended to construct only the one building "to begin with" but "if and when full occupancy is reached, more stalls will probably be added to the original structure."

Because of these disclosures the Board requested additional information regarding Short's plans. He responded by filing a plot plan on which he depicted not only the building for which he was seeking a permit, but two additional structures.

On December 9, Short appeared before the Board where he was quizzed in detail regarding his plans. Short insisted he was seeking a permit for only one building; that he had no specific present intention of building the others. Nevertheless, the Board ruled that issuance of the permit would have a significant effect upon the environment and ordered an Environmental Impact Statement (EIS). The Board's decision was based on the following facts: (1) although Short's land was not zoned, the area was devoted primarily to residential and agricultural uses; (2) it was so designated on the County's comprehensive land-use plan; (3) some of Short's neighbors had voiced opposition to commercial development of the site; and (4) the proximity of Short's venture to the Dungeness Bridge approach would cause traffic safety problems. At this juncture Short simply abandoned his request for a building permit.

On December 27, 1976, Short's brother Joe obtained a permit from the County Department of Public Works to construct a "barn" on the site for "farm use only. No sales or business." Pursuant to this permit Short constructed a 24-stall, 20 by 100-foot building. Although the county building inspector issued final approval for the structure, he observed: "this is the strangest looking barn I have ever seen." On March 11, 1977, one day after his barn was approved, Short applied to the Board for a change of use permit, to convert the barn to a mini-warehouse. On his environmental checklist he stated he was "undecided" about future expansion.

On April 4, 1977, Short again appeared before the Board. Despite extensive interrogation about his plans, he continued to maintain he was not sure about the future. The Board confronted Short with his "barn," suggested he had never intended to use it as such and had planned all along to build a mini-warehouse. Short admitted the building had never been used as a barn and conceded his plans had not changed materially since the hearing of December 9. Construing Short's answers as meaning he intended to construct two more warehouses, the Board again required preparation of an EIS.

It is not at all clear from the record of proceedings before the Board that Short was relying upon or that the Board gave any consideration to state and local State Environmental Policy Act (SEPA) guidelines under which Short's building was classified as exempt from EIS requirements. WAC 197-10-140(24) excludes from the definition of "major action" any of the actions exempted by WAC 197-10-170(1)(c), which reads as follows:

Categorical exemptions. Governmental activities or approvals of activities of the types listed herein Are not major actions, and proposals for such activities are exempted from the threshold determinations and EIS requirements of SEPA and these guidelines:

(1) Minor new construction. The following types of construction Shall be exempt except when undertaken wholly or in part on lands covered by water; the exemptions provided by this subsection apply to all licenses required to undertake the construction in question, except when a rezone or any license governing emissions to the air or water is required:

(c) The construction of an office, school, commercial, recreational, service or storage building with less than 4,000 square feet of total floor area, and with associated parking facilities designed for twenty automobiles or less.

(Emphasis added.) In addition, Clallam County Ordinance No. 56-1974, adopted pursuant to WAC 197-10-150, reads in part as follows:

BE IT HEREBY ORDAINED by the Board of Clallam County Commissioners that the following classes of action Do not require a further determination of environmental significance, the preparation of an impact statement, or the preparation of the declaration of significant impact : (Emphasis added.)

3. Class 3: . . . actions involving the construction and location of single small structures or facilities, not in conjunction with the building of two or more such units and other minor development, not occurring in a "sensitive area." Including but not limited to:

(c) Small one story offices, recreation, Service and storage buildings designed for an occupant load of 25 persons or less and with less than 2,500 square feet of the floor area;

Short promptly sought review in the Clallam County Superior Court. The trial court reversed the Board, finding it had acted contrary to law, in disregard of its own ordinances and on insufficient evidence. The County appealed. We affirm.

The County's appeal presents the following issues: (1) What is the proper standard for judicial review of a county's affirmative threshold determination to require an EIS? (2) Are future, indefinite, conditional plans part of the "proposal" when permission is sought to change the use of an existing structure which is categorically exempt under state and local law and which will remain exempt if permission is granted? Stated another way, may such future plans be considered in assessing the environmental impact of issuing the change of use permit if that is all that is sought?

APPROPRIATE STANDARD OF REVIEW

As to the first issue, we note that quasi-judicial determinations of purely local agencies, such as the Board of Commissioners, are not reviewable under the provisions of the Administrative Procedure Act, RCW 34.04, Riggins v. Housing Authority, 87 Wash.2d 97, 549 P.2d 480 (1976). Rather, review is conducted under the court's inherent or statutory powers and an agency determination will be reversed only if found to be arbitrary and capricious or contrary to law. Surprisingly, Clallam County argues and of course Short hastens to agree that because the Board's decision to require an EIS arose from the environmental concerns of SEPA, RCW 43.21C, our review must be governed by the broad clearly erroneous test rather than by the usual, more restrictive arbitrary and capricious or contrary to law standard, Norway Hill Preservation & Protection Ass'n v. King County Council, 87 Wash.2d 267, 552 P.2d 674 (1976). We do not agree. In Norway Hill the court adopted the clearly erroneous standard of the Administrative Procedure Act to review a "negative threshold" determination, whereas here the Board affirmatively called for an EIS. The policy enunciated in Norway Hill was to foster the environmental full disclosure goals of SEPA. Hence, the Supreme Court was more easily persuaded to overturn an agency decision which might possibly have conflicted with those goals. In this case the Board's decision to call for an EIS serves to implement the policies and concerns of SEPA rather than to impede or frustrate those aims. It seems to us, therefore, that an affirmative threshold determination should be overturned only if found to be arbitrary and capricious or contrary to law.

Nor do we think the recent decision in Polygon Corp. v. Seattle, 90 Wash.2d 59, 578 P.2d 1309 (1978), mandates otherwise. In Polygon the court held that the broad clearly erroneous standard employed in Norway Hill ought to apply as well to agency denial of a building permit on SEPA grounds. As stated in Polygon, 90 Wash.2d at page 69, 578 P.2d at page 1315:

It has long been recognized that substantive and procedural safeguards are necessary to protect property owners from abusive and arbitrary land use regulations. While we have indicated that specific protections developed in the zoning area are not applicable to a building permit denial, we recognize that the same potential for abuse exists. This is particularly true in view of the fact that environmental factors, especially those involving visual considerations, are not readily subject to standardization or quantification. That potential for abuse is even stronger where the decision must be made in a climate of intense political pressures.

We believe that this potential for abuse, together with a need to ensure that an appropriate balance between economic, social, and environmental values is struck requires a higher degree of judicial scrutiny than is normally appropriate for administrative action. Consequently, in order that there be a broad review, we apply the clearly erroneous standard to the superintendent's denial of Polygon's building permit.

(Footnote omitted.) The difference between denial of a permit on the basis of a fully developed study of the environmental consequences of a proposed action on the one hand, and merely requiring preparation of an EIS on the other, is obvious. As noted in Polygon, denial of a building permit directly limits the owner's use of his property for certain purposes. By contrast the preparation of an EIS, though perhaps onerous for the land owner, does not directly impose a limitation on his use of his land. Further, the decision to require an EIS is made at an early stage when neither the agency nor a reviewing court has the benefit of a full environmental inquiry. Polygon Corp. v....