Snohomish County Property Rights Alliance v. Snohomish County, 33287-2-I

• Decision Date: 19 September 1994
• Docket Number: No. 33287-2-I,33287-2-I
• Citation: 76 Wn.App. 44,882 P.2d 807
• Parties: SNOHOMISH COUNTY PROPERTY RIGHTS ALLIANCE, a Nonprofit Corporation; and Darrell R. Harting, Individually, Appellants, v. SNOHOMISH COUNTY; The Snohomish County Council; and Robert J. Drewel, Snohomish County Executive, Respondents.
• Court: Washington Court of Appeals

Page 44

76 Wn.App. 44

882 P.2d 807

SNOHOMISH COUNTY PROPERTY RIGHTS ALLIANCE, a Nonprofit Corporation; and Darrell R. Harting Individually, Appellants, v. SNOHOMISH COUNTY; The Snohomish County Council; and Robert J. Drewel, Snohomish County Executive, Respondents.

No. 33287-2-I.

Court of Appeals of Washington Division 1.

Sept. 19, 1994.

Publication Ordered Oct. 24, 1994.

As Amended Oct. 28, 1994.

Douglas James Smith, Everett, for appellants.

Evelyn Sue Allen Tanner, Snohomish County Deputy Pros. Atty., Everett, for respondents.

SCHOLFIELD, Judge.

Snohomish County Property Rights Alliance and Darrell R. Harting, a Snohomish County resident and property owner (collectively SNOCO, unless otherwise indicated) challenge the trial court's order granting summary judgment dismissing SNOCO's application for a writ of certiorari to have the trial court review Snohomish County's (the County's) compliance with the State Environmental Policy Act of 1971 (SEPA), RCW 43.21C, in conjunction with the adoption of county-wide planning policies. We affirm.

FACTS

On February 4, 1993, the Snohomish County Council passed by ordinance county-wide planning policies. As a necessary part of that process, the Council approved and accepted the Environmental Impact Statement (EIS) Addendum submitted by the planning director. SNOCO protested this acceptance of the EIS Addendum in lieu of a supplemental EIS and claimed that the EIS Addendum would fail to meet the requirements of SEPA.

On March 4, 1993, SNOCO applied for a writ of certiorari seeking review in the trial court of the County's compliance with SEPA prior to passage of the county-wide planning policies. ¹ In its answer, the County admitted that the county-wide planning policies required it to conduct an environmental review pursuant to SEPA. The County also admitted that for purposes of SEPA compliance, the planning director, under the direction of the County Executive, made a formal finding of probable significant adverse environmental impacts resulting from the proposed county-wide planning policies. However, the County alleged lack of standing as an affirmative defense.

On April 1, 1993, the trial court issued a writ ordering the County to return a full transcript of the record of proceedings involving the EIS and its Addendum to be issued by the County as to the county-wide planning policies. On April 29, 1993, the County moved for summary judgment quashing the trial court's writ and dismissing SNOCO's application for a writ of certiorari. In opposition to the County's motion for summary judgment, SNOCO filed a brief and several declarations and affidavits. The County moved to strike portions of each of the declarations and affidavits for failure to meet the requirements of CR 56(e) ², as well as part of SNOCO's brief. SNOCO then filed additional declarations opposing the County's motion to strike. The County moved to strike those declarations as well.

After considering all of the affidavits and declarations submitted, together with the County's motion for summary judgment, the court concluded that all of SNOCO's declarations and affidavits ³ were speculative and conclusory and failed to present evidentiary facts. Rather than striking the declarations and affidavits, however, the court found that SNOCO failed to raise a material issue of fact for trial and entered summary judgment for the County dismissing SNOCO's application for a writ of certiorari and quashing the writ previously issued. In addition, the trial court found as a matter of law that SNOCO had no standing under SEPA, which limits standing to cities, counties, and the governor. ⁴ The court therefore concluded that "the question [came] down to standing in the form of an application for a writ of certiorari," pursuant to RCW 7.16.040.

The court found as a matter of law that the Council's action passing the planning policies on February 4, 1993 was clearly legislative and thus not subject to a writ of certiorari under RCW 7.16.040. Finally, the court ruled that, although it could review such matters pursuant to its inherent power under article 4, section 6 of the Washington Constitution, a party must first demonstrate it has standing to seek review, which SNOCO had failed to do.

This appeal timely followed.

STANDING

The issue before us is whether SNOCO has standing to seek judicial review of the County's compliance with SEPA, in conjunction with the planning policies adopted by the County pursuant to the Growth Management Act (GMA), RCW 36.70A SNOCO contends that it has standing to bring an action to seek the trial court's review of the County's compliance with SEPA in conjunction with the adoption of the county-wide planning policies because the facts presented show direct and immediate injury from the administrative decision of the county planning director. The County responds that SNOCO lacks standing under either the GMA or SEPA to bring this action because there is no specific statutory appeal right provided under either RCW 36.70A or the county charter for SEPA review. The County also argues that SNOCO has no right to a writ of certiorari because the county-wide planning policies are legislative in nature, rather than quasi-judicial.

Statutory Writ of Certiorari. Because SNOCO has no standing to appeal under the GMA or SEPA, ⁵ the issue becomes whether SNOCO may acquire standing in the form of an application for a writ of certiorari under RCW 7.16.040. ⁶ Under that statute, a writ of certiorari may be granted only to review agency action that is quasi-judicial in nature. Raynes v. Leavenworth, 118 Wash.2d 237, 244, 821 P.2d 1204 (1992).

A 4-part test has been developed to determine when a given action is quasi-judicial or legislative in relation to a writ. Raynes, at 244, 821 P.2d 1204. Courts examine the following factors to decide if the actions taken are functionally similar enough to court proceedings to warrant judicial review:

(1) whether the court could have been charged with the duty at issue in the first instance; (2) whether the courts have historically performed such duties; (3) whether the action of the municipal corporation involves application of existing law to past or present facts for the purpose of declaring or enforcing liability rather than a response to changing conditions through the enactment of a new general law of prospective application; and (4) whether the action more clearly resembles the ordinary business of courts, as opposed to those of legislators or administrators.

Raynes, at 244-45, 821 P.2d 1204 (quoting Standow v. Spokane, 88 Wash.2d 624, 631, 564 P.2d 1145, appeal dismissed, 434 U.S. 992, 98 S.Ct. 626, 54 L.Ed.2d 487 (1977)).

A review of the above factors indicates that the County Council's action on February 4, 1993 was legislative and not quasi-judicial. (1) The actions taken by the county planning director to comply with SEPA for county-wide planning policies were administrative in nature and were not similar to judicial fact-finding and dispute resolution. Thus, the court could not have been charged with the duty at issue in the first instance. (2) The courts have not historically performed the function of ensuring that counties comply with SEPA. That is a function best left to administrative bodies. (3) The County's action did not involve application of existing law to past or present facts, but rather, an enactment of new general law of prospective application. (4) The action more clearly resembles a legislative act. Accordingly, the County's SEPA compliance for the county-wide planning policies is not subject to review pursuant to the writ statute.

SNOCO cites Save a Valuable Env't v. Bothell, 89 Wash.2d 862, 576 P.2d 401 (1978) (SAVE ) in support of its argument that individual property owners have standing to challenge SEPA decisions. SAVE involved a rezone of a parcel of farmland to permit construction of a major shopping center. SAVE, at 863-64, 576 P.2d 401. Save a Valuable Environment (SAVE) was a nonprofit corporation whose membership included people who resided next to the rezoned property and made specific allegations of perceptible injury. SAVE, at 865, 576 P.2d 401. Applying a 2-part test for proving standing, ⁷ the court held SAVE had standing under those circumstances. SAVE, at 865, 576 P.2d 401. The result in SAVE has no bearing on the issue in the present case where the County Council's action was legislative and not quasi-judicial and, therefore, did not warrant judicial review. Furthermore, SNOCO is unable to meet this test as discussed below in the context of SNOCO's constitutional argument.

SNOCO also argues that it has standing to challenge administrative or legislative action because it represents a class of third parties. In support of this argument it cites United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973); High Tide Seafoods v. State, 106 Wash.2d 695, 725 P.2d 411 (1986), appeal dismissed, 479 U.S. 1073, 107 S.Ct. 1265, 94 L.Ed.2d 126 (1987); and SAVE. SNOCO overlooks the fact that SCRAP

conferred standing to obtain judicial review of agency action only upon those who could show "that the challenged action had caused them 'injury in fact,' and where the alleged injury was to an interest 'arguably within the zone of interests to be protected or regulated' by the statutes that the agencies were claimed to have violated."

SCRAP, at 686, 93 S.Ct. at 2415 (quoting Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972)). SNOCO is unable to meet this test as discussed below.

High Tide is equally unhelpful to SNOCO's claim because in that case the court made no finding of standing since the petitioners were unable to meet the second part of the SCRAP test--that they would be able to prove their injury fell within the zone of the fishing rights of treaty Indians. High Tide, at 702, 725 P.2d 411.

Accordingly, SNOCO has...