Lakeside Industries v. Thurston County

83 P.3d 433, 119 Wash. App. 886
CourtCourt of Appeals of Washington
DecidedJanuary 13, 2004
DocketNo. 29188-6-II
StatusPublished
Cited by40 cases

This text of 83 P.3d 433 (Lakeside Industries v. Thurston County) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lakeside Industries v. Thurston County, 83 P.3d 433, 119 Wash. App. 886 (Wash. Ct. App. 2004).

Opinion

Armstrong, J.

Lakeside Industries applied for a special use permit to construct an asphalt manufacturing and [891]*891recycling plant in the Nisqually Valley. Although Thurston County (County) opposed the project, it issued Lakeside a mitigated determination of nonsignificance under the State Environmental Policy Act (SEPA), chapter 43.21C RCW. Finding that the project met the specific conditions of the county code, a hearing examiner approved the permit. But the county commissioners reversed the decision, concluding that the project was not consistent with the general purposes of the Nisqually Sub-Area Plan, a plan the County adopted to preserve the agricultural and pastoral character of the valley. Lakeside appealed to the Mason County Superior Court, which reinstated the hearing examiner’s decision to allow asphalt manufacturing but rejected Lakeside’s request to recycle asphalt. The County and several citizen groups appeal; Lakeside appeals the denial of its request to recycle asphalt. Because the commissioners lacked legal authority to apply the subarea plan’s general purpose to deny a use the County’s zoning code specifically allowed, we affirm the trial court.

FACTS

Lakeside applied for a special use permit to build an asphalt production and recycling facility in the Nisqually Valley Planning Area. The proposed facility would be located within the Holroyd gravel mine, which operates within the area under a valid use permit allowing the facility to expand mineral extraction operations. The Holroyd site is subject to the Nisqually Sub-Area Plan. Under the subarea plan, the County evaluates special land uses for compatibility with the “Agricultural/Pastoral Character” of the Nisqually Valley. Clerk’s Papers (CP) at 401.

The Board of County Commissioners (Board) adopted the subarea plan in 1992. The County readopted it in 1995, when it amended its comprehensive plan to comply with Washington’s Growth Management Act, chapter 36.70A RCW.

The proposed asphalt facility would be approximately two miles upwind and upriver from the Nisqually National [892]*892Wildlife Refuge, home to numerous wildlife species and endangered salmon. The groundwater around the mine site is between 4 and 15 feet below the extremely porous surface. The site is also located in the County’s aquifer protection district. The County has spent approximately $2.4 million to purchase development rights in the immediate area adjacent to the proposed facility to prevent environmental damage.

Thurston County staff conducted a project environmental review and concluded the proposed asphalt facility did not comply with the subarea plan. Specifically, the reviewing agency denied Lakeside’s use permit request after concluding the facility failed to meet the subarea plan policies regarding rural environment, commercial development, and asphalt reprocessing. Local citizens were also skeptical about whether the asphalt plant was consistent with the subarea plan policies. Nevertheless, the County issued a mitigated determination of nonsignificance, concluding the asphalt plant would not have probable adverse significant impacts on the environment. A local citizen group, Friends of the Nisqually (Friends), and the Nisqually Indian Tribe appealed the nonsignificance determination, asking the County to produce a full environmental impact statement.

On review, the Thurston County hearing examiner upheld the nonsignificance determination and granted the use permit after concluding the project was consistent with applicable county plans and codes. Among other things, the hearing examiner considered area zoning and project impacts to groundwater, drainage, traffic, flooding, noise, and air quality. Friends and the Nisqually Tribe appealed the use permit approval to the Board.

After a closed hearing, the Board concluded the proposed Lakeside asphalt plant was not consistent with subarea plan policies because: (1) the subarea plan generally prohibits new industrial uses, (2) the subarea plan specifically prohibits asphalt recycling, (3) the existing extraction gravel site never processed asphalt, and (4) the proposed [893]*893asphalt plant does not preserve the area’s existing rural character. Accordingly, on September 17, the Board reversed the hearing examiner’s approval of Lakeside’s use permit. On October 24, Lakeside appealed the Board’s use permit denial to Mason County Superior Court under Washington’s Land Use Petition Act (LUPA), chapter 36.70C RCW.1

On November 9 and 14, Friends and the Nisqually Tribe filed answers to Lakeside’s LUPA petition and challenged the hearing examiner’s nonsignificance determination. Friends and the Nisqually Tribe also moved to dismiss or change venue, claiming Mason County Superior Court lacked jurisdiction to hear Lakeside’s LUPA petition based on article IV, section 6 of the Washington Constitution2 and RCW 4.12.010.

The Mason County Superior Court denied a venue change, ruling that the Board was not a “court” under the constitutional language. The court also dismissed Friends’ and the Nisqually Tribe’s nonsignificance determination challenge because they had not filed their appeal within LUPA’s 21-day statutory time limit.

After considering the case on the merits, the court reversed the Board’s decision to deny Lakeside’s use permit, but it concluded that the subarea plan precluded asphalt recycling within the plan’s area.

ANALYSIS

I. Standard of Review

When reviewing a superior court’s decision on a land use petition, we stand in the same position as the superior court. Biermann v. City of Spokane, 90 Wn. App. [894]*894816, 821, 960 P.2d 434 (1998). A party who seeks relief under LUPA carries the burden of meeting one of the standards in RCW 36.70C.130(1). Schofield v. Spokane County, 96 Wn. App. 581, 586, 980 P.2d 277 (1999). Under LUPA, we review the decision of the local jurisdiction’s body or officer with the highest level of authority to make the determination, including those with authority to hear appeals. RCW 36.70C.020(1); Citizens to Preserve Pioneer Park L.L.C. v. City of Mercer Island, 106 Wn. App. 461, 474, 24 P.3d 1079 (2001). Here, the Board did not alter any of the hearing examiner’s findings of fact. Accordingly, the Board acted as an appellate body in its review and it was bound by the hearing examiner’s findings of fact. Maranatha Mining, Inc. v. Pierce County, 59 Wn. App. 795, 802, 801 P.2d 985 (1990).

The relevant standards for granting relief are, therefore, whether the Board erroneously interpreted the law and whether the Board made a clearly erroneous application of the law to the facts. RCW 36.70C.130

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Cite This Page — Counsel Stack

Bluebook (online)
83 P.3d 433, 119 Wash. App. 886, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lakeside-industries-v-thurston-county-washctapp-2004.