Lathrop v. State Energy Facility Site Evaluation Council

121 P.3d 774, 130 Wash. App. 147
CourtCourt of Appeals of Washington
DecidedOctober 27, 2005
DocketNo. 23454-1-III
StatusPublished

This text of 121 P.3d 774 (Lathrop v. State Energy Facility Site Evaluation Council) 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
Lathrop v. State Energy Facility Site Evaluation Council, 121 P.3d 774, 130 Wash. App. 147 (Wash. Ct. App. 2005).

Opinion

¶1

Brown, J.

— F. Steven Lathrop appeals the Kittitas County Superior Court’s dismissal of his petition for stay and review of State Energy Facility Site Evaluation Council (EFSEC) proceedings alleged to be inconsistent with the local land use plans. He contends the court erred in deciding it lacked subject matter jurisdiction under RCW 80.50.140 and in denying reconsideration. The unique statutory framework involves an expedited administrative process leading to EFSEC siting recommendations to the governor for approval, rejection, or return for further EFSEC proceedings. We hold RCW 80.50.140 vests authority solely in the Thurston County Superior Court to decide petitions for [149]*149review of the governor’s final decision in a consolidated proceeding to conduct needed fact finding and, upon certain conditions, to certify the petition to the Supreme Court. Accordingly, we affirm.

FACTS

¶2 The EFSEC is the agency designated in chapter 80.50 RCW for administratively evaluating energy facility site applications. The council is charged with making an expedited recommendation to the governor to approve or deny an energy facility site certification on behalf of the State.

¶3 In January 2003, Sagebrush Power Partners, L.L.C., (Sagebrush) applied to EFSEC for energy facility site certification for a proposed wind turbine facility in Kittitas County. In May 2003, EFSEC began its administrative hearings on the application, making an initial determination that the project would be inconsistent with Kittitas County land use plans and zoning laws. In July 2003, EFSEC granted F. Steven Lathrop’s motion to intervene.

¶4 In February 2004, Sagebrush formally asked EFSEC to preempt Kittitas County’s land use plans and zoning restrictions. Later, Mr. Lathrop formally asked the council stay its preemption recommendation and immediately rule that the project was subject to the county’s land use plan under the Growth Management Act1 (GMA).

¶5 On August 10, 2004, EFSEC issued Council Order 793, in which it declined to make a decision on the GMA issue. Council Order 793 states: “the Council has not yet taken any position on the merit of the Applicant’s Request for Preemption, nor will it do so until after the adjudicative hearing has been held, all environmental review documents have been finalized, and all post-hearing briefs have been filed and reviewed.” Clerk’s Papers (CP) at 190.

¶6 On August 11, 2004, Mr. Lathrop again filed a motion asking EFSEC to decide the GMA issues and dismiss [150]*150Sagebrush’s preemption request. On August 12, 2004, EFSEC issued Council Order 794, denying Mr. Lathrop’s motion as untimely under the deadline for dispositive motions, and specifying: “A full and complete ruling on EFSEC preemption jurisdiction and the effect, if any, of the GMA will be forthcoming at an appropriate future date.” CP at 231. EFSEC issued Council Order 795, which continued an August 16, 2004 hearing until September 27, 2004, without expressly extending the deadline for filing dis-positive motions.

¶7 On August 31, 2004, Mr. Lathrop filed a petition for review in Kittitas County Superior Court, mainly asking the court to declare the council had no authority to preempt Kittitas County zoning laws under the GMA and prohibiting EFSEC from further considering Sagebrush’s application unless it complied with the GMA. Mr. Lathrop appended a motion to stay the adjudicative hearing and Council Order 794 to the petition for review. Concurrently, Mr. Lathrop filed a motion and order to show cause why his petition should not be granted.

¶8 On September 13, 2004, the court dismissed Mr. Lathrop’s petition for lack of subject matter jurisdiction. Reconsideration was denied. In a memorandum opinion, the court found that through chapter 80.50 RCW, the legislature designated Thurston County Superior Court as the sole forum to review energy facility siting decisions; thus, the court reasoned it lacked subject matter jurisdiction. Mr. Lathrop appealed.

ANALYSIS

f 9 The issue is whether the court erred in dismissing Mr. Lathrop’s petition for review and concluding it lacked subject matter jurisdiction and statutory authority under chapter 80.50 RCW to act on the petition.

¶10 When interpreting a statute, our duty is to discern and implement the legislature’s intent. State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003). We give effect to the [151]*151plain meaning. McGinnis v. State, 152 Wn.2d 639, 645, 99 P.3d 1240 (2004). We construe statutes to avoid strained or absurd results. Strain v. W. Travel, Inc., 117 Wn. App. 251, 254, 70 P.3d 158 (2003), review denied, 150 Wn.2d 1029 (2004).

¶11 In chapter 80.50 RCW, our legislature set out an expedited administrative procedure to consider energy facility site applications. The procedure is designed to “avoid costly duplication in the siting process and ensure that decisions are made timely and without unnecessary delay.” RCW 80.50.010(5). EFSEC conducts administrative hearings on proposed energy facility sites and reports to the governor a recommendation on the disposition of applications for site approval and submission of a “draft certification agreement” when the EFSEC recommends approval. RCW 80.50.040(7), (8). While EFSEC may recommend preemption, solely the governor has the power to preempt land use plans under the statutory scheme.

¶12 The expedited procedure requires EFSEC to report its recommendations within 12 months of receipt of an application. RCW 80.50.100(1). Within the next 60 days after receiving the report of recommendations, the governor must make a decision to approve or reject the application or ask EFSEC to reconsider aspects of the draft certification agreement. RCW 80.50.100(2)(a)-(c). “The rejection of an application for certification by the governor shall be final as to that application.” RCW 80.50.100(3).

¶13 “A final decision pursuant to RCW 80.50.100 on an application for certification shall be subject to judicial review pursuant to provisions of chapter 34.05 RCW and this section. Petitions for review of such a decision shall be filed in the Thurston county superior court.” RCW 80- .50.140(1). Thurston County Superior Court is to consolidate the appeals and certify the petitions for review by the Supreme Court.

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Related

McGinnis v. State
99 P.3d 1240 (Washington Supreme Court, 2004)
Dougherty v. DEPT. OF LABOR & INDUSTRIES
76 P.3d 1183 (Washington Supreme Court, 2003)
Strain v. West Travel, Inc.
70 P.3d 158 (Court of Appeals of Washington, 2003)
State v. J.P.
69 P.3d 318 (Washington Supreme Court, 2003)
Dougherty v. Department of Labor & Industries
150 Wash. 2d 310 (Washington Supreme Court, 2003)
McGinnis v. State
152 Wash. 2d 639 (Washington Supreme Court, 2004)
Strain v. West Travel, Inc.
117 Wash. App. 251 (Court of Appeals of Washington, 2003)

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Bluebook (online)
121 P.3d 774, 130 Wash. App. 147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lathrop-v-state-energy-facility-site-evaluation-council-washctapp-2005.