Swift v. Island County, 44016

• Decision Date: 22 July 1976
• Docket Number: No. 44016,44016
• Court: Washington Supreme Court
• Parties: , 6 Envtl. L. Rep. 20,684 SWIFT, an Unincorporated Association, et al., Appellants, v. ISLAND COUNTY et al., Respondents-Cross-Appellants, Dillingham Development Company and First Realty, Inc., Intervenors-Respondents-Cross-Appellants, The Department of Ecology of the State of Washington, Third-Party Defendant.

Page 348

87 Wn.2d 348

552 P.2d 175, 6 Envtl. L. Rep. 20,684

SWIFT, an Unincorporated Association, et al., Appellants, v. ISLAND COUNTY et al., Respondents-Cross-Appellants Dillingham Development Company and First Realty, Inc. Intervenors-Respondents-Cross-Appellants The Department of Ecology of the State of Washington Third-Party Defendant.

No. 44016.

Supreme Court of Washington, En Banc.

July 22, 1976.

Schroeter, Jackson, Goldmark & Bender, P.S., Roger M. Leed, Seattle, Slade Gorton, Atty. Gen., Charles B. Roe, Jr., Robert V. Jensen, Olympia, John Cunningham, Mt. Vernon, for appellants.

David F. Thiele, Pros. Atty., Coupeville, Slade Gorton, Atty. Gen., James A. Humphrey, Olympia, Bogle & Gates, John C. Coughenour, Dale B. Ramerman, Charles R. Blumenfeld, Seattle, for respondents.

WRIGHT, Associate Justice.

This appeal involves a challenge to a determination made by the planning director of Island County that no impact statement under chapter 43.21C RCW was required for the approval of three plats and building permits for a development known as the 'Seabreeze' development in Keystone Harbor, Whidbey Island. The approval of two plats which subdivided the shoreline portion of that development is being attacked. The questions on appeal are: (1) What standard of review is appropriate when a court reviews an agency 'threshold' determination under the State Environmental Policy Act (SEPA) and was that standard met? (2) Did the county take a 'piecemeal' approach to Shoreline Management Act and State Environmental Policy Act questions presented by a single project? (3) Can agencies issue approvals for a development without seeking assurances that SEPA has been complied with? (4) When may a court shift the burden of attorneys' fees under the 'private attorney general' doctrine? (5) Was the appearance of fairness violated?

We hold as follows: (1) The test to be applied is the 'clearly erroneous' test. A substantial impact was demonstrated by numerous agency reports so that the director's decision to disregard the reports and enter the finding 'no substantial impact,' thereby bypassing the preparation of an environmental impact statement altogether, is clearly erroneous. (2) There was no improper 'piecemealing' in this case. (3) We find it unnecessary to decide the question of whether agencies can issue approvals without seeking assurances that SEPA has been complied with. Any expression we might make on that question would be in the nature of an advisory opinion. (4) The theory of 'private attorney general' has never been adopted in this jurisdiction, and, therefore, forms no basis upon which attorneys' fees can be awarded. (5) The appearance of fairness was violated in this case.

The facts will be stated as briefly as possible. The area involved is near the Keystone Ferry Landing which is the easterly terminus of the ferry route from Port Townsend to Whidbey Island. The area is of historical significance. It was the first permanent settlement on the island. Colonel Samuel Crockett established a donation land claim there in 1851 which still bears his name, as does Crockett Lake. Another early settler was Dr. J. C. Kellogg who settled in the area in 1853. The Kellogg land later became a part of Fort Casey. A lighthouse was also located on the Kellogg property. Some visible remains of the original buildings may still be seen. The historical significance of the area is best summarized by saying it is included in the Central Whidbey Island Historical District, which has been placed in the National Register of Hostoric Sites.

Crockett Lake is separated from the waters of Puget Sound by a narrow strip of land. There is some connection between the saltwater and the lake. Although there was for some time a tide gate, that seems now to be inoperative.

The land upon which the proposed plats are located is, and for many years has been, much used for recreational purposes. It is, however, private property. Respondents point out that any recreational use of their land now, or in the past, is the activity of trespassers.

In 1890 two townsites known as Brooklyn and Chicago were platted on part of the ground now in question. These townsites consisted of a large number of very small lots; only a few of which were ever sold.

Starting in about 1971, applications were made for replatting of the old sites of Brooklyn and Chicago. The applications were made by a joint venture consisting of Dillingham Development Company (Dillingham), a Hawaiian concern, and First Realty, Inc. (First Realty), a concern involved in the development of areas on Whidbey Island.

On February 8, 1972, the Island County Planning Commission rejected the plat for a number of reasons. This was done on the recommendation of the planning director, Sydney W. Glover. The action of the planning commission was appealed to the board of county commissioners of which board one J. R. Vanderzicht was then chairman. Vanderzicht was also a stockholder and chairman of the board of directors of the Island Savings and Loan Association (Association). The Association was listed as a dedicator on the plat of Keystone Estates Division No. 2, a major part of the Seabreeze development. Vanderzicht signed the dedication on behalf of the Association. From 1972 through the present, the Association has held a mortgagee's interest in a portion of the property to be included within the Seabreeze development. The county commissioners, in a motion seconded by Commissioner Vanderzicht, overruled the planning commission and gave preliminary approval to the Keystone Shores Plat in April 1972.

Before the county commissioners acted on the appeal, Vanderzicht had been contacted by Robert Hansen of First Realty. On March 23, 1972, Hansen, on behalf of First Realty, wrote a report to Dillingham, a part of which reads as follows:

Mr. Vandersythe (sic) is a very astute businessman who is the senior County Commissioner and purported to be the strongest leader in the County Government. After explaining the history of our proposed plats and the frustrations encountered with the County Planner, County Sanitarian, and possibly, the County Prosecutor in the delay of this plat, he proceeded to advise me that there was little question but that all three Commissioners were going to overrule the Planning Commission and approve the preliminary plat on April 10th. He went on to explain that we had been a victim of circumstances, with a new Planner who is hired by and responsible to a Planning Commission; with a Sanitarian who, in December, was being criticized by his superiors in the State Health Department for approving septic tank permits . . . without site inspection where soils have been unsuitable for septic tank purposes; with vague guidelines handed down by the Attorney General for the Shorelines Management Act, and with an ecology group that had recently become organized.

He further explained there was no question but that the Planning Commissioner representing the area where Keystone is located is dead set against any development of Keystone.

He suggested that we give some support to the County Commissioners to rationalize the overruling of the Planning Commission's denial.

Barring any unforeseen legal maneuvers, we should have approval on April 10. Mr. Hansen proved to be accurate in his prediction.

On April 10, 1972, the plat was approved. Vanderzicht seconded the motion to approve and then voted for the approval. Thereafter, development of the project proceeded rapidly. The developers decided to divide the preliminary plat for final platting purposes, and proceeded to seek final plat approval for Keystone Shores Division No. 1 and Keystone Shores Division No. 2, which replaced the old plats of Brooklyn and Chicago. Approval of these designations was given by the board of commissioners in February and April of 1973.

In the summer of 1973, physical work on the site started with the building of roads and digging of ditches for water and sewer lines. At about the same time a real-estate sales firm was employed by the developers and moved in with the usual flags and signs. The residents of the area only then learned what was proposed and started this proceeding on August 31, 1973.

In addition to the above, the developers obtained two shoreline substantial development permits for the Keystone Shores and Keystone Estates plats. The developers likewise were granted approvals of their water systems by the Department of Social and Health Services. To overcome that department's objection to septic tanks, a contract was made with the Port of Coupeville to operate a sewage treatment plant. The developers sought approval of the design of the sewage facilities from the Department of Ecology. At the time of this appeal, final approval of these facilities had not been obtained.

Shortly after work was begun, appellants made demand on the attorney general and the prosecuting attorney to halt development on the basis that no environmental impact statement had been prepared under the State Environmental Policy Act of 1971 or the Shoreline Management Act of 1971. The primary environmental concern was the effect the project would have on Crockett Lake, whose surface waters and wetlands are unquestionably valuable to waterfowl and shorebirds. Concern was also expressed that a development the size of the Seabreeze Estates development would unduly congest the Admiralty Head/Admiralty Bay area. This area contains four highly attended points of interest, I.e., Fort Casey Historical State Park; Keystone Harbor; Keystone Jetty, a separate underwater park; and Keystone Ferry Landing. Appellants' demand was not heeded, and, therefore, appellants commenced an action in Island County Superior Court seeking an injunction to halt work and an order directing defendant Island County to comply with the provisions in chapter 43.21C RCW.

Before any hearing in the case, Dillingham and First Realty were permitted...