Posted by: Patricia Salkin | March 12, 2014

WA Supreme Court Finds County SEPA Appeal Procedure Violated State Law, County’s Interpretation of Agricultural-use Zoning Ordinance was not Entitled to Deference; and Rock Crushing was not a Permitted Use on Agricultural-zoned Property

Homer L. Gibson owned approximately 84 acres of property zoned “A-20” where the previous owner received a conditional use permit “for gravel extraction on one 13.4-acre parcel of the property” in 1997. It was undisputed that gravel extraction was a permitted conditional use in A-20 zones. In 2008, Gibson applied for a gravel extraction permit for 60 acres from the Department of Natural Resources (DNR). Kittitas County contacted DNR confirming that the extraction for the 60 acres had been approved, and DNR subsequently approved Gibson’s permit. However, in 2009, the County sent Gibson a notice of violation warning him that there was no conditional use permit for the gravel extraction he was conducting on his property. In 2010, Gibson applied for another conditional use permit seeking to amend the 1997 permit to include both rock crushing and gravel extraction. The application included a copy of the State Environmental Policy Act (SEPA) checklist that was submitted with Gibson’s 2008 application to DNR. The original checklist stated the subject area was for 60 acres, but the list submitted to the County stated 84 acres.

Ellensburg Cement objected to Gibson’s 2010 application noting the discrepancies in the applications. The County held two hearings; one closed record hearing on the SEPA appeal, and one open record hearing on the conditional use permit issue. At the open hearing, Ellensburg Cement objected to the application and argued “rock crushing was not a permitted conditional use on A-20 land.” The Board approved Gibson’s application anyway. Ellensburg appealed but the superior court affirmed the decision. Ellensburg then appealed to the Court of Appeals, which held that the County was in error when it held a closed record hearing on the SEPA appeal. The Court of Appeals also held that rock crushing was not a permitted conditional use in the A-20 zone. The County and Gibson appealed.

First, the court addressed whether the County’s appeal procedures were in compliance with state law under SEPA. Under Washington state law, an agency cannot conduct a hearing of only the alleged SEPA violation, but must also have a “hearing on the action to which the SEPA determination relates.” Thus, the hearings should have occurred simultaneously if the state were providing for a SEPA appeal. Moreover, “a SEPA appeal must provide for the preparation of a record for use in any subsequent appeal proceedings.” The court interpreted the governing statutes for SEPA appeals procedure to mean that “a county that chooses to provide an appeal of its SEPA determination must provide a single simultaneous open record hearing on both the SEPA determination and the underlying action, followed by an optional single closed record appeal.” Therefore, the County was clearly engaging in unlawful procedure, or at least failing to comply with the statutory requirements.

Second, the court addressed whether the Court of Appeals should have afforded more deference to the local decision makers when it held that rock crushing was not a permitted conditional use. The court found that the Court of Appeals was correct in not giving deference to the hearing board’s decision because the transcript showed “the absence of any preexisting policy regarding interpretation of the zoning ordinance at issue.” Thus, because rock crushing was not specifically listed in the statute as a permissible use, the court inferred that it was prohibited on A-20 land. The court affirmed the decision of the Court of Appeals.

Ellensburg Cement Products, Inc., v. Kittitas County, 317 P.3d 1037 (WA 2014)

The opinion can be accessed at: http://www.courts.wa.gov/opinions/pdf/881651.pdf


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