Ellensburg Cement Prods., Inc. v. Kittitas County

• Court: Washington Supreme Court
• Decided: February 6, 2014
• Docket: 88165-1
• Status: Published

Opinion

FILE

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

ELLENSBURG CEMENT PRODUCTS, NO. 88165-1 INC., ENBANC Respondent,

v. Filed FEB 0 6 2014 KITTITAS COUNTY and HOMER L. (LOUIE) GIBSON,

Petitioners,

JAMES and DEANNA HAMIL TON, and LARRY and SHERRIE MILLER,

Defendants.

GORDON McCLOUD, J.- Homer L. Gibson applied to Kittitas County for

a conditional use permit (CUP) that would allow him to conduct rock crushing and

other gravel and cement production related activities on his agricultural-zoned

property. Kittitas issued a determination of nonsignificance (DNS) under the State

Environmental Policy Act (SEPA), chapter 43.21C RCW, and gave notice that it Ellensburg Cement Products, Inc. v. Kittitas County, et al., No. 88165-1

would hold a public hearing on the CUP. Ellensburg Cement Products, Inc. objected

to the CUP application and appealed Kittitas's SEPA DNS under the county's

administrative appeal procedures. In the hearing that followed, Kittitas first

considered the SEPA appeal in a "closed record" hearing, Clerk's Papers (CP) at 30,

and upheld the DNS. It then held an "open record" public hearing on the CUP, CP

at 103, and granted Gibson's application over Ellensburg Cement's objections.

Ellensburg Cement appealed both decisions to the superior court, which affirmed,

and then to the Court of Appeals, which reversed. Ellensburg Cement Prod., Inc. v.

Kittitas County, 171 Wn. App. 691, 287 P.3d 718 (2012). The Court of Appeals

held that Kittitas was statutorily required to hold an "open record hearing" on the

appeal of the SEP A DNS and that rock crushing was not a permissible conditional

use under Kittitas's relevant zoning regulations. Id. at 713. We granted Gibson's

and Kittitas's petitions for review, 176 Wn.2d 1027, 301 P.3d 1047 (2013), and now

affirm the Court of Appeals.

FACTS

Gibson owned about 84 acres of property in five contiguous parcels, zoned

"agricultural-20" (A-20). In 1997, the previous owner of that property had applied

for and received a CUP for gravel extraction on one 13.4-acre parcel of the property.

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The parties do not dispute that gravel extraction was and is a permitted conditional

use in A-20 zones.

In October 2008, Gibson applied for a gravel extraction permit from the

Department of Natural Resources (DNR) for an area of 60 acres. Kittitas confirmed

to DNR that the gravel extraction on 60 acres had been approved by the county. In

fact, the only CUP issued by Kittitas allowed gravel extraction on one 13.4 acre

parcel. Nevertheless, DNR approved Gibson's permit for an area of 60 acres in

December 2008. In April2009, Kittitas issued a notice of violation to Gibson. The

notice warned that gravel extraction was occurring on Gibson's property for which

no CUP had been issued. The record does not show any further action by the county

following the notice of violation.

In June 2010, Gibson submitted a CUP application that purported to amend

the 1997 CUP to permit rock crushing in addition to gravel extraction. His

application suggested that the 1997 CUP applied to all five of his parcels, totaling

84 acres. Included in the application was a copy of what appeared to ·be the SEP A

checklist submitted with Gibson's application to DNR in 2008. The checklist

submitted with his 2010 application to Kittitas, however, was altered-the original

checklist referred to mining an area of 60 acres, whereas the list submitted to Kittitas

referred to 84 acres.

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Ellensburg Cement objected to Gibson's application in August 2010. It noted

several of the discrepancies discussed above and also asserted that the county could

not rely only on the 2008 SEP A checklist but, rather, should conduct its own

independent SEPA review. Kittitas disagreed, determined that Gibson's application

was complete, and published a notice of the application and notice of its intent to

issue a SEPA DNS. Written comments were invited, received, and placed in the

record for consideration. In October 2010, Kittitas issued a SEPA DNS. At the

same time, the county gave notice that it would hold a public hearing on the CUP

application. Ellensburg Cement appealed the SEPA DNS.

Kittitas held the hearing on the SEP A appeal on May 11, 2011, and upheld

the DNS. The hearing's procedures were dictated by Kittitas's "new procedure for

administrative appeals." CP at 108. Under that new procedure, "[n]o new evidence

or testimony shall be given or received" and the "hearing body shall deliberate on

the matter in public in the manner of a closed record hearing." KITTITAS COUNTY

CODE (KCC) 15A.07.020(1), (2).

Directly following this closed record hearing on the SEP A appeal, Kittitas

held an "open record hearing" on Gibson's CUP application. CP at 103. Ellensburg

Cement objected to Gibson's CUP application and was permitted to present

arguments and testimony, as were all interested parties. Ellensburg Cement argued,

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among other things, that rock crushing was not a permitted conditional use on A-20

land. The hearing board disagreed and approved the application. CP at 103.

Ellensburg Cement appealed both decisions-the one from the "closed

record" SEPA appeal and the one from the "open record" CUP application hearing-

through the Land Use Petition Act (LUPA), chapter 36.70C RCW, to Kittitas County

Superior Court. The superior court affirmed. CP at 534. Ellensburg Cement then

appealed to the Court of Appeals. The Court of Appeals held that Kittitas erred by

holding a "closed record" hearing, rather than an "open record" hearing, on the

SEPA appeal. Ellensburg Cement, 171 Wn. App. at 712-13. It also held that rock

crushing was not a permitted conditional use on A-20 land. Id. at 706. Kittitas and

Gibson sought review in this court, we accepted review, and we now affirm the Court

of Appeals.

ANALYSIS

I. STANDARD OF REVIEW

Judicial review of land use decisions is governed by LUPA. RCW

36.70C.030. An appellate court is in the same position as the superior court when

reviewing a LUPA petition. Griffin v. Thurston County Bd. of Health, 165 Wn.2d

50, 54, 196 P.3d 141 (2008) (citing Isla Verde Int'l Holdings, Inc. v. City of Camas,

146 Wn.2d 740, 751,49 P.3d 867 (2002)). The party seeking reliefmust establish:

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(a) The body or officer that made the land use decision engaged in unlawful procedure [sic] or failed to follow a prescribed process, unless the error was harmless;

(b) The land use decision is an erroneous interpretation of the law, after allowing for such deference as is due the construction of a law by a local jurisdiction with expertise;

(c) The land use decision is not supported by evidence that is substantial when viewed in light of the whole record before the court;

(d) The land use decision is a clearly erroneous application of the law to the facts;

(e) The land use decision is outside the authority or jurisdiction of the body or officer making the decision; or

(f) The land use decision violates the constitutional rights of the party seeking relief.

RCW 36.70C.130(1).

Interpretation of a statute is a question of law that this court reviews de novo.

State v. Wentz, 149 Wn.2d 342,346,68 P.3d 282 (2003) (citing City ofPasco v. Pub.

Emp't Relations Comm'n, 119 Wn.2d 504,507,833 P.2d 381 (1992)). Our duty in

conducting statutory interpretation is to "discern and implement" the legislature's

intent. State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003) (citing Nat'! Elec.

Contractors Ass 'n v. Rive/and, 138 Wn.2d 9, 19, 978 P.2d 481 (1999)). Where the

plain language of a statute is unambiguous, and legislative intent is therefore

apparent, we will not construe the statute otherwise. ld. However, plain meaning

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may be gleaned "from all that the Legislature has said in the statute and related

statutes which disclose legislative intent about the provision in question." Dep 't of

Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 11,43 P.3d 4 (2002). The same

principles apply to interpretation of municipal or county ordinances, like the Kittitas

ordinance at issue here. City of Spokane v. Fischer, 110 Wn.2d 541, 542, 754 P.2d

1241 (1988) (citing Puyallup v. Pac. Nw. Bell Tel. Co., 98 Wn.2d 443, 448,656 P.2d

1035 (1982)).

II. WHETHER KITTITAS'S SEPA APPEAL PROCEDURES COMPORT WITH STATE LAW

a. Threshold Determinations under SEPA

Under SEP A, counties and other entities must include· a detailed

environmental impact statement (EIS) "in every recommendation or report on

proposals for legislation and other major actions significantly affecting the quality

of the environment." RCW 43.21C.030(c). SEPA charges the Department of

Ecology with creating "[r]ules for criteria and procedures applicable to the

determination of when an act of a branch of government is a major action

significantly affecting the quality of the environment for which a detailed statement

is required to be prepared pursuant to RCW 43.21C.030." RCW 43.21C.110(b).

Pursuant to that statutory authority, Ecology has established a "threshold

determination process" to decide whether an action is a major action significantly

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affecting the environment for which an EIS is required. WAC 197-11-3 30. "If the

responsible official determines there will be no probable significant adverse

environmental impacts from a proposal, the lead agency shall prepare and issue a

determination ofnonsignificance (DNS)." WAC 197-11-340(1). Ifthe responsible

entity issues a DNS, then no EIS is required. See generally WAC 197~11-330.

b. Appeals of Threshold SEPA Determinations

A county or other entity 1 charged with making SEP A determinations may

choose whether or not to provide an internal appeals process for challenging its

determinations. See WAC 197-11-680(2) ("Agencies may establish procedures for

such an appeal, or may eliminate such appeals altogether, by rule, ordinance or

resolution."). If the entity permits an appeal of the threshold SEPA determination,

however, that appeal must be tied to the underlying government action-for

example, the government decision to grant or deny a CUP. RCW 43.21C.075; WAC

197 -11-680(3 )(v) ("If an agency does not provide for a hearing or appeal on the

underlying governmental action (either a hearing on the agency's recommendation

or an agency appeal hearing after the decision is made), the agency may not hold a

SEPA administrative appeal, except [under circumstances not implicated here].").

1 Counties, local governments, and agencies are treated interchangeably under chapter 43.21C RCW. See RCW 43.21C.030.

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In other words, an agency or local government cannot provide an appeal of only the

SEP A threshold determination. State law permits the locality or agency to provide

a SEP A appeal procedure only if the locality or agency also provides {or a hearing

on the action to which the SEP A determination relates.

Moreover, the government entity permitting the SEPA appeal "[s]hall

consolidate an appeal of [SEP A] determinations ... with a hearing or appeal on the

underlying governmental action by providing for a single simultaneous hearing."

RCW 43.21C.075(3)(b). Thus state law requires that if a local government opts to

provide a SEP A appeal, that appeal must occur simultaneously with a hearing on the

underlying action. Moreover, and importantly for this case, a SEP A appeal must

"provide for the preparation of a record for use in any subsequent appeal

proceedings," and an "adequate record consists of findings and conclusions,

testimony under oath, and taped or written transcript." RCW 43.21C.075(3)(c).

RCW 36.70B.060 lays out the requirements for SEPA appeals if local

governments choose to provide them. Under RCW 36.70B.060(6), "if a local

government elects to provide an appeal of its threshold determinations or project

permit decisions, the local government shall provide for no more than one

consolidated open record hearing on such appeal." (Emphasis added.) "The local

government need not provide for any further appeal," but if it does provide a further

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appeal, "it shall be a closed record appeal before a single decision-making body or

officer." Id.

An "open record hearing" is defined as "a hearing, conducted by a single

hearing body or officer authorized by the local government to conduct s~ch hearings,

that creates the local government's record through testimony and submission of

evidence and information, under procedures prescribed by the local government by

ordinance or resolution." RCW 36. 70B.020(3). A "closed record appeal" is defined

as "an administrative appeal on the record to a local government body or officer,

including the legislative body,following an open record hearing on a project permit

application when the appeal is on the record with no or limited new evidence or

information allowed to be submitted and only appeal argument allowed." RCW

36.70B.020(1) (emphasis added).

The SEP A provisions of chapter 43 .21 C RCW thus establish that an appeal of

a SEP A threshold determination must be consolidated and simultaneous with a

hearing on the underlying project permit decision, and must provide for the

preparation of a record, including testimony under oath, for use in subsequent

proceedings. The appeals process set out in chapter 36.70B RCW then prescribes

what forms such consolidated appeals must take-i.e., open record or closed record,

and how many of each.

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c. The Parties' Arguments

The parties focus their arguments on the following statutory language: "if a

local government elects to provide an appeal of its threshold determinations or

project permit decisions, the local government shall provide for no more than one

consolidated open record hearing on such appeal." RCW 36.70B.060(6) (emphasis

added). Gibson and Kittitas argue that this means the county is free t6 provide less

than one consolidated open record hearing-that is, none. E.g., Suppl. Br. of Kittitas

County at 6.

Ellensburg Cement responds that the statute cannot mean what Kittitas argues

it means because, essentially, it would be absurd and contrary to due process to have

a closed record appeal without any underlying open record hearing to create a record

in the first place. 2 The Court of Appeals agreed with Ellensburg Cement. Ellensburg

Cement, 171 Wn. App. at 713. But, as Kittitas points out, the legislature did not pass

a statute saying "one and no more than one"; the statute states "no more than one."

2 We note that if the county chose to offer no appeal at all, as the relevant statutes permit, then the appeal would go directly to superior court through LUPA. LUPA appeals are generally closed record appeals, so one might assume that the same result could occur simply by the county exercising its undisputed option not to provide an appeal. However, LUPA itself guards against this possibility: review is on a closed record only where "the parties to the quasi-judicial proceeding had an opportunity consistent with due process to make a record on the factual issues." RCW 36.70C.120(1). Otherwise, "the record for judicial review may be supplemented by evidence of material facts that were· not made part of the local jurisdiction's record." RCW 36.70C.l20(3).

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RCW 36.70B.060(6). And "no more than one" does indeed encompass both one and

none.

Ellensburg Cement contends that such an interpretation would be inconsistent

with the statutory definitions of "closed" and "open" record hearings. A "closed

record appeal" is defined in part as "following an open record hearing." RCW

36.70B.020(1). Thus, if Kittitas never had an open record hearing, it cannot, by

definition, provide a "following" closed record appeal. Moreover, an "open record

hearing" is defined as a hearing "that creates the local government's record through

testimony and submission of evidence and information." RCW 36.70B.020(3). If

the record is never created in an open record hearing, then, again by definition, there

is no record created upon which to hold a closed record appeal.

The county responds that in fact its ordinances establish a procedure that is

neither an "open record hearing" nor a "closed record appeal" under the statutory

definitions, but is, instead, its own special administrative process. Kittitas asserts

that it is actually "offering an administrative appeal based solely upon the record

used to make the decision appealed." Suppl. Br. of Kittitas County at 5. In other

words, the county argues it is free to create any appellate procedure it wants as long

as it does not violate the statutory command that it does not have "more than one"

open record hearing. RCW 36.70B.060(6). Instead, the county argues, it provides

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neither an open record hearing nor a closed record appeal, and that is not a violation

of the statute.

d. The County's Plain Language Argument Conflicts with Related Statutes and the Statutory Scheme as a Whole

The county's argument, which is fundamentally an argument based on the

plain language of the statute, has some merit; "no more than one" does, literally,

encompass both one and none. But we do not stop with literal, word-by-word

interpretation bereft of context. Instead, we interpret a statute's plain meaning in

light of "related statutes which disclose legislative iritent about the provision in

question." Campbell & Gwinn, 146 Wn.2d at 11. And in this case several related

statutes substantially undermine Kittitas's and Gibson's position.

The first related statute is RCW 36.70B.l20, a statute that addresses a

consolidated permit review process not at issue here. Although RCW 36.70B.120

does not apply directly to this case, it incorporates by reference the statute that we

must interpret, RCW 36.70B.060(6), as follows: "if a project action requires project

permits from more than one category, the local government shall provide for

consolidated permit review with a single open record hearing and no more than one

closed record appeal as provided in RCW 36. 70B. 060." RCW 36.70B.l20(2)

(emphasis added). RCW 36.70B.120(2) thus interprets RCW 36.70B.060 as

providing for "a single open record hearing and no more than one closed record

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appeal." Id. This suggests that the legislature did in fact intend RCW 36.70B.060

to provide for "a single open record hearing," as opposed to "one or zero open record

hearings," as the county and Gibson contend.

The second related statute is RCW 43.21C.075(3)(b). Under SEPA, if a

county provides an appeal from its SEP A determination, the county must

"consolidate an appeal of [SEP A] determinations ... with a hearing or appeal on the

underlying governmental action by providing for a single simultaneous hearing."

RCW 43.21C.075(3)(b) (emphasis added). But the county here held an open record

hearing on the CUP directly after its closed record hearing on the SEP A

determination. As a practical matter, if there is both a SEP A appeal and a hearing

on the underlying action, it is evident that the two issues cannot literally be heard

simultaneously. Further, as a practical matter, it is logical to hear and decide a SEPA

appeal prior to hearing and deciding the underlying action. The county, though, did

not just hold the hearings sequentially; it held one hearing under one set of rules (a

closed record hearing on the SEP A appeal) followed by another hearing under

another set of rules (an open record hearing on the CUP). That procedure contradicts

the statutory requirement that the SEP A appeal be consolidated and simultaneous

with the underlying CUP hearing. This consolidation requirement also suggests that

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the legislature intended RCW 36.70B.060 to provide for at least one open record

hearing, contrary to the county's and Gibson's contention.

Third, and most important for interpreting the statute at issue, RCW

43.21C.075(3)(c) states that an agency providing a SEPA appeal must "provide for

the preparation of a record for use in any subsequent appeal proceedings, and shall

provide for any subsequent appeal proceedings to be conducted on the record,

consistent with other applicable law." Moreover, an "adequate record consists of

findings and conclusions, testimony under oath, and taped or written transcript." I d.

At a minimum, then, the consolidated hearing on the SEP A appeal and the

underlying action must provide for introduction of testimony under oath. That

requirement is consistent with the definition of an "open record hearing" in ch.

36.70B RCW, which "creates the local government's record through testimony and

submission of evidence and information, under procedures prescribed by the local

government by ordinance or resolution." RCW 36.70B.020(3). The requirement of

testimony under oath is inconsistent with Kittitas's assertion that it may create its

own administrative procedure, which is neither an open record hearing nor a closed

record appeal, and which does not provide for any testimony.

The principle of expressio unius est exclusio alterius compels the same

conclusion. "'Where a statute specifically designates the things or classes of things

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upon which it operates, an inference arises in law that all things or classes of things

omitted from it were intentionally omitted by the legislature under the maxim

expressio unius est exclusio alterius-specific inclusions exclude hnplication. '"

Landmark Dev., Inc. v. City of Roy, 138 Wn.2d 561, 571, 980 P.2d 1234 (1999)

(quoting Washington Natural Gas Co. v. Pub. Util. Dist. No. 1 ofSnohomish County,

77 Wn.2d 94, 98, 459 P.2d 633 (1969)). Kittitas's assertion that it may create its

own proceeding that does not appear in the statute runs contrary to this canon of

construction. The statutory scheme defines two proceedings: (1) an "[o]pen record

hearing" that creates a record with testimony, RCW 36.70B.020(3); and (2) a

"[c]losed record appeal" that follows an open record hearing, RCW 36.70B.020(1).

But, as Kittitas admits, Kittitas's SEPA proceeding in this case was neither an open

record hearing nor a closed record appeal. Under the expressio unius canon,

therefore, the legislature's inclusion of only two types of hearings precludes Kittitas

from creating its own different type of hearing.

In addition, Kittitas's argument that it may create its own proceeding, if

accepted, could undermine the purpose of the SEP A appeal scheme. The scheme

was enacted in part to address the problem that the "increasing number of local and

state land use permits and separate environmental review processes required by

agencies has generated continuing potential for conflict, overlap, and duplication

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between the various permit and review processes." RCW 36.70B.Ol0(2). If each

agency may create procedures not contemplated by the statutory scheme, the

problem the scheme was meant to address will be exacerbated rather than alleviated.

To sum up, the county, because it has chosen to provide a procedure for

appealing SEP A determinations, is required to "consolidate an appeal of [SEP A]

determinations ... with a hearing or appeal on the underlying governmental action

by providing for a single simultaneous hearing." RCW 43.21C.075(3)(b). That

same SEP A appeal· procedure also " [s]hall provide for the preparation of a record

for use in any subsequent appeal proceedings" and an adequate record must include

"testimony under oath." RCW 43.21 C.075(3)(c). That scheme contemplates at least

one open record hearing on a SEP A appeal. Read in context with those statutes, as

it must be, RCW 36.70B.060(6) then limits the number of such open record hearings:

the county "shall provide for no more than one consolidated open record hearing on

such appeal." If it chooses to provide a further appeal, "it shall be a closed record

appeal before a single decision-making body or officer." !d. And the county may

"provide for no more than ... one closed record appeal." RCW 36.70B.050(2). As

a whole, the statutory scheme requires that a county that chooses to provide an appeal

of its SEPA determination must provide a single simultaneous open record hearing

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on both the SEP A determination and the underlying action, followed by an optional

single closed record appeal.

Instead, Kittitas here provided a closed record hearing-a process the county

claims is altogether different from anything contemplated in the statutory scheme

and therefore not governed by the statutes-on the SEP A determination, followed

by an open record hearing on the underlying CUP. That is not permissible under the

statutory scheme interpreted as a whole and is contrary to the legislature's purpose

in enacting the scheme. As explained, the statutes, read together, require at least one

hearing on a SEPA appeal that includes "testimony under oath." RCW

43.21C.075(3)(c). That is consistent with the Court of Appeals' decision that the

statutory language "is based on the assumption that there will be at least one open

hearing." Ellensburg Cement, 171 Wn. App. at 711. Kittitas in this case "engaged

in unlawful procedure or failed to follow a prescribed process." RCW

36.70C.130(1)(a). 3 We therefore affirm the Court of Appeals on this issue.

3 Under the statute, procedural errors may be harmless. RCW 36.70C.l30(1)(a). The parties do not raise the issue of harmlessness, but our review of the record suggests that the closed record proceeding that took place here was not harmless error. A board member stated during deliberations that "I'm just trying to take in all this stuff. Makes it tough when you can't ask questions." CP at 34. Another board member replied; "Well; we need to move this along." !d. Immediately thereafter, the board voted to deny the SEPA appeal. Under the circumstances, the county's failure to follow the record-creating procedure mandated by state law was not harmless.

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III. WHETHER THE COURT OF APPEALS FAILED To PROVIDE PROPER DEFERENCE TO LOCAL DECISIONMAKERS BY HOLDING THAT ROCK CRUSHING WAS NOT PERMITTED BY THE ZONING REGULATIONS IN PLACE AT THE RELEVANT TIME

A-20 is an agricultural zone in Kittitas County allowing graveLextraction as

a conditional use. It also formerly allowed, as a "permitted" use, the "[p]rocessing ' . of products produced on the premises." Former KCC 17.29.020(A)(13) (2009).

Gibson argues 4 that he had a CUP to extract gravel and hence gravel is a product

produced on the premises. Further, he argues, rock crushing processes the gravel.

Therefore, he concludes, rock crushing is a permitted use for A-20 land that has an

associated CUP to extract gravel, despite the fact that no agricultural zone expressly

permits rock crushing as a conditional use or otherwise.

The Court of Appeals held that this was an incorrect interpretation of the

zoning ordinances. It determined that, because the use "'processing of products

produced on the premises"' was a use exclusive to the four agricultural zones, the

use "encompasses [only] products produced by agricultural means." Ellensburg

Cement, 171 Wn. App. at 705. Since gravel is not produced by agricultural means,

the appellate court reasoned, "and only gravel excavation is listed as a conditional - - -

4 Only Gibson petitioned the court for review on this particular issue. Kittitas's petition and supplemental briefing are limited to the open record hearing issue.

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use, the logical conclusion is that rock crushing is not allowed in an A-20 zone

because it is not listed as a permitted or conditional use." ld. at 706. .

Gibson does not contest that the Court of Appeals' interpretation is plausible.

Instead, he argues that the opposite interpretation by Kittitas's hearing board was

also plausible. Suppl. Br. of Pet'r Gibson at 16. Gibson asserts that courts must

show deference to local decisionmakers' interpretations of their own regulations,

and that the Court of Appeals therefore erred by failing to show deference to the

county board's plausible interpretation.

Under LUP A, a court may overturn a land use decision that is ''an erroneous

interpretation of the law, after allowing for such deference as is due the construction

of a law by a local jurisdiction with expertise." RCW 36.70C.130(1)(b).

The statute does not require a court to show complete deference, but rather,

"such deference as is due." ld. Thus, deference is not always due--in fact, even a

local entity's interpretation of an ambiguous local ordinance may be rejected. See

Sleasman v. City of Lacey, 159 Wn.2d 639, 646, 151 P.3d 990 (2007). Instead, the

interpreting local entity "bears the burden to show its interpretation was a matter of

preexisting policy." ld. at 647 (citing Cowiche Conservancy v. Bosley, 118 Wn.2d

801, 815, 828 P.2d 549 (1992)). No deference is due a local entity's interpretation

that "was not part of a pattern of past enforcement, but a by-product of current

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litigation." Id. at 646. A local entity's interpretation need not "be memorialized as

a formal rule" but the entity must "prove an established practice of enforcement."

. I d. (citing Cowiche, 118 Wn.2d at 815).

Here, Kittitas's interpretation of its zoning ordinance was a by-product ofthe

current litigation. Neither Gibson nor Kittitas has attempted to show that there was

any preexisting policy supporting the county's interpretation of those zoning

regulations. The transcript of the hearing shows the contrary-that the interpretation

was entirely ad hoc. For example, one board member stated, "Well, we can't go

back to the county commissioners to get their opinion on this, you know?" CP at

73. Another said, "Well, it's also difficult because this Board is not the Board that

created the ordinance." CP at 74. One board member even admitted, regarding the

proper interpretation of the ordinance, "I'm confused." CP at 75. The transcript

thus reflects the absence of any preexisting policy regarding interpretation of the

zoning ordinance at issue. There is no deference due to the hearing board's

interpretation in this case.

In the absence of deference to local decisionmakers, the Court of Appeals'

interpretation of the zoning ordinances is significantly more plausible than Gibson's

interpretation. First, "rock crushing" is not listed as a conditional use on A-20 land;

only "[s]and and gravel extraction" is listed. Former KCC 17.29.030(25) (2012),

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repealed by KCC Ordinance 2013-001. In other Kittitas zoning ordinances, such as

the one describing the "Rural 5" zone, "rock crushing" is expressly listed as a

conditional use alongside "sand and gravel extraction." Former KCC 17.30A.030(5)

(2012), repealed by KCC Ordinance 2013-001. If the county had intended to permit

"rock crushing" on A-20 land, it defies reason that it would not have listed "rock

crushing" as a conditional use there, as it did for "Rural 5" land. The fact that the

county did not list "rock crushing" alongside "sand and gravel extraction" as

conditional uses on A-20 land, as it did elsewhere in its zoning code, strongly

suggests that "rock crushing" is not permitted at all on A-20 land.

Further, the use category "processing of products produced on the premises"

appears only in agricultural zones. This strongly suggests that "products produced"

refers to agricultural products. If "products" was interpreted as broadly as Gibson

would like, then other permitted uses would be rendered superfluous. For example,

there would be no reason to provide for "[h]ay processing," former KCC

17.29. 020( 1)(v), or "the processing of locally harvested forest crops using portable

equipment," KCC 17.29.020(1)(n), since both would be encompassed by

"processing of products produced on the premises." Even the extent to which that

use category permits agricultural processing is called into question by the zoning

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code's inclusion of"processing plants for agricultural products" as a conditional use

on A-20 land. Former KCC 17.29.030(11).

Ellensburg Cement has successfully shown, as LUP A reqmres, that the

county's decision was based on "an erroneous interpretation of the law." RCW

36.70C.130(1)(b). We hold that no deference was due the local decisionmakers in

this case and affirm the Court of Appeals' decision that "rock crushing" was not a

permitted use on A-20 land under former KCC 17.29.020 and former KCC

17.29.030.

CONCLUSION

Kittitas's SEP A appeal procedure did not comport with state law. A statute

does state that Kittitas must provide "no more than one" open record hearing, which

on its face encompasses both "one" and "none." But the statutory scheme as a whole

makes clear that Kittitas must provide at least one open record hearing that includes

testimony under oath. Because Kittitas did not provide such an open record hearing

in this case, the Court of Appeals correctly held that the county's procedure violated

·state law. Finally, the Court of Appeals correctly held that rock crushing was not a

permitted use on Gibson's land under the zoning regulations in place at the time.

We affirm the Court of Appeals.

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WE CONCUR:

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