Rossi Larson LLC v. Chelan County

• Court: Court of Appeals of Washington
• Decided: March 19, 2024
• Docket: 39614-2
• Status: Unpublished

Opinion

FILED MARCH 19, 2024 In the Office of the Clerk of Court WA State Court of Appeals Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

ROSSI LARSON, LLC, a Washington ) limited liability company, MELISSA ) No. 39614-2-III ROSSI and NICK ROSSI, ) ) Appellants, ) ) v. ) UNPUBLISHED OPINION ) CHELAN COUNTY, BERGREN TREE ) FRUITS, LLC; CARNAN BERGREN; ) and DAN BEARDSLEE, ) ) Respondents. )

COONEY, J. — In 2020, Bergren Tree Fruits, LLC (Bergren) through their

agent/applicant, Dan Beardslee, applied to Chelan County (County) for a planned

development and major subdivision located on approximately 42 acres of former orchard

land owned by Bergren. Following a State Environmental Policy Act (SEPA)1 review, a

threshold determination was made and a mitigated determination of nonsignificance

1 Chapter 43.21C RCW. No. 39614-2-III Rossi Larson LLC, et al. v. Chelan County, et al.

(MDNS) was issued. Nick and Melissa Rossi (Rossis), who own an orchard near the

planned development, appealed the issuance of the MDNS. Following a multi-day

hearing process, the hearing examiner conditionally approved the application and

affirmed issuance of the MDNS.

The Rossis appeal the conditional approval of the application as well as the

hearing examiner’s affirmance of the MDNS. The Rossis argue that the hearing

examiner’s findings are inadequate for review, that the project does not comply with the

Peshastin urban growth area comprehensive plan, that the hearing examiner’s decision

conditionally approving the application violates numerous Chelan County Code (CCC)

provisions, and that the hearing examiner’s affirmance of the MDNS violates SEPA. We

disagree and affirm.

BACKGROUND

In 2008, the County created the Peshastin Urban Growth Area (UGA) and adopted

the Peshastin UGA Comprehensive Plan (Comprehensive Plan). The Comprehensive

Plan incorporated various goals and policies from the Peshastin UGA related to housing,

land use, zoning, and transportation, among other things.

Bergren owns approximately 42 acres of vacant land (Property) located within

Peshastin’s UGA and is zoned low density residential (R-1). The Property is located

north of Derby Canyon Road along Larson Road in Peshastin, Washington. In 2020, Mr.

Beardslee (Applicant) filed an application for a planned development and a major

2 No. 39614-2-III Rossi Larson LLC, et al. v. Chelan County, et al.

subdivision to be located on the approximately 42 acres of land owned by Bergren. The

application proposed 134 lots of residential development for detached single-family

residences, accessory dwelling units (ADU), duplexes, and townhouses (the Project).

Included with the application, among other items, was a preliminary site plan and

road plan, geological hazards report, narrative description, domestic water availability

letter, sanitary sewer availability letter, a stormwater control plan authored by Torrence

Engineering LLC, and a traffic impact study (TIS). The County recommended the

Project be approved.

SEPA REVIEW

During the application phase, the Applicant submitted an environmental checklist

to the County pursuant to the SEPA. The County received numerous comments from

both the public and governmental agencies, including Chelan County Public Works,

Chelan County Public Utility District No. 1 (PUD), Department of Ecology (Ecology),

and the Washington State Department of Transportation (WSDOT), among others. The

County considered the comments and completed an environmental review. Based on the

threshold determination, a final MDNS was issued by the County’s SEPA responsible

official.

The application also included a TIS, authored by Michael Read, that analyzed the

Project’s impact on traffic and was subsequently revised. The WSDOT reviewed the

3 No. 39614-2-III Rossi Larson LLC, et al. v. Chelan County, et al.

revised TIS and had no comments. Due to the resulting impacts on traffic under the

revised TIS, conditions were incorporated into the MDNS to mitigate potential effects.

Additionally, soils on the property were tested and found to be contaminated due

to past orchard operations. Ecology recommended that the model remedies for cleanup

of former orchard properties in Central and Eastern Washington (Model Remedy) be used

to clean up the site. Ecology also recommended that the Model Remedy developer

agreement be used to “avoid placing the burden of cleanup on purchasers of vacant lots.”

Clerk’s Papers (CP) at 943. Both of Ecology’s recommendations were incorporated into

the MDNS.

The MDNS also included other mitigating conditions related to domestic water

service, sanitary sewer service, sewage disposal, stormwater drainage, and archaeological

resources potentially present at the site of the Project.

SEPA APPEAL AND CONDITIONAL APPROVAL OF THE PROJECT

The Rossis filed an appeal of the MDNS. They contend that the Model Remedy

was not adequate to mitigate the environmental impacts of the contaminated soils, that

the conditions in the MDNS related to traffic impacts were not adequate, that the

conditions in the MDNS were insufficient to eliminate the Project’s adverse impacts on

land use compatibility, that the MDNS did not properly mitigate risks to irrigation lines,

and that the SEPA responsible official did not have sufficient information to make the

SEPA determination.

4 No. 39614-2-III Rossi Larson LLC, et al. v. Chelan County, et al.

The hearing examiner conducted a multi-day hearing process and took evidence

from numerous expert and lay witnesses testifying for and against approval of the

Project’s application and the MDNS. Among the individuals who testified for the Rossis

were: Nick Rossi; Pam Jenkins, an expert witness who testified regarding potential health

impacts of the contaminated soils; Katie Saltanovitz, an expert witness who testified

regarding stormwater and erosion; and Kassi Leingang, an expert witness who testified

regarding traffic impacts.

In August and then September 2022, the hearing examiner issued: (1) findings of

fact, conclusions of law, decision and conditions of approval conditionally approving

the Project (Conditioned Approval), and (2) his decision on appeal of the SEPA

determination for the Pine Ridge planned development, affirming the MDNS. The Rossis

moved for reconsideration and the hearing examiner issued a decision on requests for

reconsideration that made some minor corrections to the Conditioned Approval and his

decision affirming the MDNS.

In the Conditioned Approval, the hearing examiner concluded the Application

“demonstrate[d] consistency with the goals and policies set forth in the Chelan County

Comprehensive Plan” and “as conditioned, is compatible with adjacent uses and would

not harm or change the character of the surrounding area.” CP at 773. The hearing

examiner also issued 66 conditions of approval of the application.

5 No. 39614-2-III Rossi Larson LLC, et al. v. Chelan County, et al.

In its decision on the SEPA appeal, the hearing examiner found the Rossis’ claims

related to impacts to irrigation lines were speculative, and the hearing examiner had

enough information to issue the MDNS.

The hearing examiner found the Rossis’ experts unconvincing. The hearing

examiner found the “factual study and opinions by traffic expert, Michael Reed [sic] were

more convincing that [sic] those opinions issued by Appellant’s expert, Kassi Leingang.”

CP at 1627. The hearing examiner found “it significant that Ms. Leingang did not do any

data collection regarding traffic counts on any roads, but instead based her understanding

of traffic volumes on discussions with area residents and employees.” CP at 64, 1627.

As to Ms. Jenkins, the hearing examiner found “her testimony and opinions were

not convincing and . . . her purported opinions regarding health risks were not

convincing.” CP at 1627. Instead, Ms. Jenkins “simply disagreed with the Department

of Ecology’s proposal to mitigate soil contamination on the site [using the Model

Remedy].” CP at 1627. Finally, as to Ms. Saltanovitz, the hearing examiner rejected her

expert testimony stating “that the Applicant’s stormwater plan was not adequate, [wa]s

not more convincing that [sic] the report submitted by John Torrence.” CP at 1627.

The hearing examiner concluded that the threshold determination was based on

sufficient information and that it fully and fairly evaluated all known or probable

environmental impacts. The MDNS was therefore affirmed.

6 No. 39614-2-III Rossi Larson LLC, et al. v. Chelan County, et al.

The Rossis appeal pursuant to RCW 36.70C.150.2

ANALYSIS

I. WHETHER THE HEARING EXAMINER ENTERED ADEQUATE FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Rossis argue that the hearing examiner’s findings of fact and conclusions of

law on their appeal of the SEPA determination are inadequate to permit meaningful

review.3 They cite Weyerhaeuser v. Pierce County, 124 Wn.2d 26, 873 P.2d 498 (1994),

and urge us to remand for proper findings, as the court did in Weyerhaeuser. Bergren and

the County respond that the hearing examiner’s findings and conclusions are detailed and

sufficient for judicial review and are in stark contrast to those in Weyerhaeuser. We

agree with Bergren and the County.

Findings of fact by an administrative agency are subject to the same requirements

as those drawn by a trial court. State ex rel. Bohon v. Dep’t of Pub. Serv., 6 Wn.2d 676,

694, 108 P.2d 663 (1940); State ex rel. Duvall v. City Council of City of Seattle, 64

Wn.2d 598, 602, 392 P.2d 1003 (1964). “The purpose of findings of fact is to ensure that

2 “The superior court may transfer the judicial review of a land use decision to the court of appeals upon finding that all parties have consented to the transfer to the court of appeals and agreed that the judicial review can occur based upon an existing record. Transfer of cases pursuant to this section does not require the filing of a motion for discretionary review with the court of appeals.” RCW 36.70C.150(1). 3 The Rossis, in their issues pertaining to the assignments of error, also challenge the findings and conclusions related to the Conditioned Approval. However, they provide no substantive argument related to the findings of the planned development’s approval so that issue is not addressed.

7 No. 39614-2-III Rossi Larson LLC, et al. v. Chelan County, et al.

the decisionmaker ‘has dealt fully and properly with all the issues in the case before he

[or she] decides it and so that the parties involved’ and the appellate court ‘may be fully

informed as to the bases of his [or her] decision when it is made.’” Weyerhaeuser, 124

Wn.2d at 35 (alterations in original) (quoting In re Det. of LaBelle, 107 Wn.2d 196,

218-19, 728 P.2d 138 (1986). The process the decisionmaker used should be revealed

by the findings of fact and conclusions of law. Hayden v. City of Port Townsend, 28 Wn.

App. 192, 622 P.2d 1291 (1981). “Statements of the positions of the parties, and a

summary of the evidence presented, with findings which consist of general conclusions

drawn from an ‘indefinite, uncertain, undeterminative narration of general conditions

and events’, are not adequate.” Weyerhaeuser, 124 Wn.2d at 36 (citing Bohon, 6 Wn.2d

at 695).

The Rossis cite Weyerhaeuser and contend that, like Weyerhaeuser, the hearing

examiner here failed to issue adequate findings. We disagree.

In Weyerhaeuser, the Washington Supreme Court found the hearing examiner’s

decision upholding an environmental impact statement (EIS) inadequate because it failed

to explain how it reached its conclusions. The court noted that the “bulk of the hearing

examiner’s decision documents consist[ed] of summarizing evidence presented, without

any guidance as to how issues involving disputed evidence were resolved by the hearing

examiner.” Id. As an example, the court pointed to the issue of whether the proposal was

public or private. The only finding on that issue was: “The proposal advanced by the

8 No. 39614-2-III Rossi Larson LLC, et al. v. Chelan County, et al.

applicant is for a private project as defined by WAC 197-11-780.” Id. The same exact

sentence was then repeated as a conclusion of law. Id. The court ruled that “[t]he

findings and conclusions [were] clearly inadequate to determine the basis for the hearing

examiner’s decision upholding the adequacy of the EIS.” Id. “While a finding recites

that the project is a private project, there is no clue as to the basis for that conclusion.”

Id.

Bergren points to Citizens Alliance to Protect Our Wetlands v. City of Auburn,

decided a year after Weyerhaeuser, in which the Washington Supreme Court called

Weyerhaeuser “an extreme case of noncompliance.” 126 Wn.2d 356, 369, 894 P.2d 1300

(1995). The court in Citizens ruled that the hearing examiner’s findings and conclusions

were adequate where it “filed a single-spaced 10-page ruling with substantial analysis of

every issue.” Id. The court concluded that “[b]ecause a reviewing court can determine

the basis for her decision, the hearing examiner’s findings are sufficient.” Id.

Here, unlike in Weyerhaeuser, the hearing examiner issued detailed findings and

conclusions illustrating the basis for his decisions. The Rossis point specifically to the

hearing examiner’s finding’s that Ms. Saltanovitz’s and Ms. Jenkins’ testimony was not

convincing, and argue the hearing examiner did not adequately explain why. The Rossis’

argument boils down to a disagreement with the hearing examiner’s credibility

determinations.

9 No. 39614-2-III Rossi Larson LLC, et al. v. Chelan County, et al.

As to Ms. Saltanovitz, the hearing examiner found her expert testimony stating

“that the Applicant’s stormwater plan was not adequate, [wa]s not more convincing that

[sic] the report submitted by John Torrence. Additionally, any erosion or sediment

control plan will need to be approved by the Washington State Department of Ecology

and meet statewide standards.” CP at 1627. The Rossis argue that this finding is similar

to the findings in Weyerhaeuser and does not permit adequate judicial review. The

Rossis contend the hearing examiner dismissed Ms. Saltanovitz’s testimony without

explaining why. But the hearing examiner sufficiently explained why. The hearing

examiner noted he found the report submitted by John Torrence more persuasive. Clearly

this was a contested issue with conflicting evidence from both sides and this court must

defer to the hearing examiner’s credibility determinations. City of Univ. Place v.

McGuire, 144 Wn.2d 640, 652-53, 30 P.3d 453 (2001). The Rossis may disagree with

the hearing examiner’s credibility determination but that does not render the finding

inadequate.

As to Ms. Jenkins’ testimony, the hearing examiner found

her testimony and opinions were not convincing and . . . her purported opinions regarding health risks were not convincing to the Hearing Examiner. She simply disagreed with the Department of Ecology’s proposal to mitigate soil contamination on the site. However, the soil contamination on the site and the mitigation was fully considered by the SEPA responsible official.

10 No. 39614-2-III Rossi Larson LLC, et al. v. Chelan County, et al.

CP at 1627. Again, the hearing examiner found Ecology’s proposal more convincing and

the Rossis disagree with that determination. However, the hearing examiner’s finding

illustrates the basis for his decision; he found Ecology’s proposal more convincing and

noted that Ms. Jenkins merely disagreed with it.

In the Appellants’ statement of additional authorities, the Rossis cite Regan v.

Department of Licensing4 and State v. C.J.5 to support their argument that, “[u]nless the

credibility finding includes a statement of the basis for the credibility determination, it

would be impossible for the reviewing court to determine whether there was substantial

evidence to support the credibility determination.” Appellant’s Statement of Additional

Auths. at 2. Neither case cited by the Rossis pronounce such an overt principle. In

Regan we held, “We will not substitute our judgment on credibility of witnesses or the

weight of conflicting evidence.” 130 Wn. App. at 49. In C.J., we addressed the trial

court’s “findings of fact regarding [the victim]’s competency at the time he made the

hearsay statements . . . not support[ing] its legal conclusion that [the victim]’s hearsay

statement should be admitted.” 108 Wn. App. at 798.

Moreover, this case is unlike Weyerhaeuser which, as the court in Citizens noted,

was “an extreme case of noncompliance.” 126 Wn.2d at 369. Here, the hearing

4 130 Wn. App. 39, 121 P.3d 731 (2005). 5 108 Wn. App. 790, 798, 32 P.3d 1051 (2001), rev’d on other grounds, 148 Wn.2d 672, 63 P.3d 765 (2003).

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examiner issued a 9-page single-spaced decision addressing all of the issues. To avoid

having to address our deference to the hearing examiner’s judgment on credibility of

witnesses, the Rossis present their argument as an attack on the adequacy of his findings

and conclusions. Consequently, their argument fails.

The hearing examiner made adequate findings of fact.

II. WHETHER THE HEARING EXAMINER ERRED IN FINDING THE PROJECT COMPLIED WITH THE COMPREHENSIVE PLAN

The Rossis argue that the hearing examiner’s determination that the Project

complies with the Comprehensive Plan was an error of law. The Rossis contend the

hearing examiner committed an error of law under RCW 36.70C.130(1)(b) when he

failed to consider the agricultural and freight network provisions in the Comprehensive

Plan. The Rossis further argue that the hearing examiner’s findings that the Project is

consistent with the Comprehensive Plan’s residential policies D and F was not supported

by substantial evidence. We disagree. The hearing examiner’s determination that the

Project complies with the Comprehensive Plan was not error.

In reviewing a land use decision, this court stands in the same position as the

superior court and limits its review to the record created before the hearing examiner.

Phoenix Dev., Inc. v. City of Woodinville, 171 Wn.2d 820, 828, 256 P.3d 1150 (2011);

Pinecrest Homeowners Ass’n v. Glen A. Cloninger & Assocs., 151 Wn.2d 279, 288,

87 P.3d 1176 (2004); RCW 36.70C.130.

12 No. 39614-2-III Rossi Larson LLC, et al. v. Chelan County, et al.

“[The Land Use Petition Act (LUPA), chapter 36.70C RCW,] provides the

exclusive means for judicial review of a land use decision (with the exception of those

decisions separately subject to review by bodies such as the growth management

hearings boards).” Phoenix Dev., 171 Wn.2d at 828 (citing Woods v. Kittitas County,

162 Wn.2d 597, 610, 174 P.3d 25 (2007)). Under LUPA, this court may reverse the

hearing examiner if the Rossis establish at least one of the six standards set forth in

RCW 36.70C.130(1):

(1) The superior court, acting without a jury, shall review the record and such supplemental evidence as is permitted under RCW 36.70C.120. The court may grant relief only if the party seeking relief has carried the burden of establishing that one of the standards set forth in (a) through (f) of this subsection has been met. The standards are: (a) The body or officer that made the land use decision engaged in unlawful procedure 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.

At issue here are standards (b) and (c).

RCW 36.70C.130(1)(b) does not require the court to give complete deference, but

rather, “‘such deference as is due.’” Ellensburg Cement Prods., Inc. v. Kittitas County,

13 No. 39614-2-III Rossi Larson LLC, et al. v. Chelan County, et al.

179 Wn.2d 737, 753, 317 P.3d 1037 (2014)). Whether the hearing examiner interpreted

the law erroneously is a question of law this court reviews de novo. Lord v. Pierce

County, 166 Wn. App. 812, 818, 271 P.3d 944 (2012).

When reviewing a challenge to the sufficiency of the evidence under subsection

(c), “we view facts and inferences in a light most favorable to the party that prevailed in

the highest forum exercising fact-finding authority,” in this case, Bergren. Phoenix Dev.,

171 Wn.2d at 828-29. “Under the substantial evidence standard, there must be a

sufficient quantum of evidence in the record to persuade a reasonable person that the

declared premise is true.” Id. at 829 (citing Wenatchee Sportsmen Ass’n v. Chelan

County, 141 Wn.2d 169, 176, 4 P.3d 123 (2000)).

This court may affirm or reverse the land use decision currently under review or

remand it for modification or further proceedings. RCW 36.70C.140. If the decision is

remanded for modification or further proceedings, the court may make such an order as it

finds necessary to preserve the interests of the parties pending further proceedings or

action by the local jurisdiction. Id. at 829.

“To the extent a comprehensive plan prohibits a use that the zoning code permits,

the use is permitted.” Cingular Wireless, LLC v. Thurston County, 131 Wn. App. 756,

770, 129 P.3d 300 (2006). However, where the zoning code itself expressly requires a

proposed use comply with the comprehensive plan, the proposed use must satisfy both

the zoning code and the comprehensive plan. Id. Under CCC 11.22.050(1), planned

14 No. 39614-2-III Rossi Larson LLC, et al. v. Chelan County, et al.

developments (PD), and therefore the Project, must be consistent with the

Comprehensive Plan. CCC 11.22.050(1) (“The PD designation confirms the PD is

consistent with the purpose of and provisions for planned developments and the

comprehensive plan.”); see also CCC 11.22.010(1) (“The purpose of this chapter is to

provide development regulations for the Peshastin community that are consistent with,

and implement, the Peshastin sub-area comprehensive plan.”).

A. WHETHER THE HEARING EXAMINER FAILED TO CONSIDER THE AGRICULTURAL AND FREIGHT NETWORK PROVISIONS OF THE COMPREHENSIVE PLAN6

The Rossis argue that the hearing examiner committed an error of law under

RCW 36.70C.130(1)(b) when he allegedly failed to consider critical agricultural and

freight network policies in finding that the Project complied with the Comprehensive

Plan. Though the Rossis make the argument that the hearing examiner erroneously

interpreted the law, they do not explain what law the hearing examiner interpreted, let

alone how it was erroneous under RCW 36.70C.130(1)(b) (“The land use decision is an

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

6 In their opening brief, the Rossis do not specifically cite to the RCW 36.70C.130(1) standard they argue applies. Subsection (d) seemed like the most logical standard based on the Rossis’ argument; however, in their reply the Rossis specifically state they are contending the “examiner committed an error of law under RCW 36.70C.130(1)(b).” Reply Br. of Appellants at 16. RCW 36.70C.130(1)(b) is not applicable because the Rossis do not point to any interpretation of law the hearing examiner made.

15 No. 39614-2-III Rossi Larson LLC, et al. v. Chelan County, et al.

construction of a law by a local jurisdiction with expertise.”). In fact, the Rossis fail to

point to any interpretation of law that the hearing examiner made regarding this issue.

Thus, the Rossis’ argument fails.

Under CCC 11.22.050(1), the Project must be consistent with the Comprehensive

Plan. As the Rossis correctly note in their reply, none of the parties dispute this

requirement. Reply Br. of Appellants at 17. The Rossis allege the hearing examiner

failed to consider certain parts of the Comprehensive Plan in finding that the Project

complied with it. Bergren responds that the Project is consistent with numerous

statements and goals outlined in the Comprehensive Plan. The County points out that

many of the Comprehensive Plan’s goals and policies conflict with one another since the

Comprehensive Plan encourages agriculture while also emphasizing expanding housing

in Peshastin’s UGA.

Absent from the Rossis’ argument is any reference to what law the hearing

examiner interpreted erroneously. Indeed, the hearing examiner did not interpret any law

when he found that the Project complied with the Comprehensive Plan, he simply applied

the law to the facts. Thus, the Rossis could potentially challenge the hearing examiner’s

determination under subsection (d) of RCW 36.70C.130(1), but they specifically cite to

subsection (b). Because the Rossis cannot show the hearing examiner erroneously

interpreted any law when he found that the Project complied with the Comprehensive

Plan, their argument fails. See also State v. Stubbs, 144 Wn. App. 644, 652, 184 P.3d 660

16 No. 39614-2-III Rossi Larson LLC, et al. v. Chelan County, et al.

(2008) (“Passing treatment of an issue or lack of reasoned argument is insufficient to

allow for our meaningful review.” (Emphasis added.)), rev’d on other grounds by

170 Wn.2d 117, 240 P.3d 143 (2010).

B. WHETHER THE HEARING EXAMINER’S DETERMINATION THAT THE PROJECT COMPLIED WITH THE COMPREHENSIVE PLAN IS SUPPORTED BY SUBSTANTIAL EVIDENCE

The Rossis argue that the hearing examiner’s finding that the Project complies

with the Comprehensive Plan’s residential policies D and F is not supported by

substantial evidence under RCW 36.70C.130(1)(c). We disagree.

1. POLICY D

The Rossis contend the finding that the Project complies with residential policy D

is not supported by substantial evidence because the Project is not compatible with the

adjacent residential development. The Rossis argue that the adjacent properties are large

orchards with single homes on significant acreage while the Project would have a much

higher allowed density. The County responds that there is only so much land in Peshastin

and residential areas frequently abut agricultural areas. Further, the County contends that

because the Project is located in the Peshastin UGA, the Chelan County Board of

Commissioners has already determined that the site of the Project is suitable for

development. We agree with the County. The hearing examiner’s finding that the

Project complies with Comprehensive Plan policy D is supported by substantial evidence.

17 No. 39614-2-III Rossi Larson LLC, et al. v. Chelan County, et al.

The Comprehensive Plan’s residential policy D reads: “POLICY D: Determine

the density of development which is compatible with adjacent residential development.”

CP at 757; Br. of Resp’t Chelan County App. A-026. The rationale for this policy is:

Urban densities should be determined by services available, the road network, and adjacent land uses. Where a full range of urban utilities are available and adjacent land uses dictate a need for buffering. Adjacent to existing, well-established neighborhoods, lower densities should be reflected, such as four units per acre. Several different zoning classifications should be developed to allow for properly adjusted densities and mixed-use development.

CP at 757; Br. of Resp’t Chelan County App. A-026.

As the County correctly notes, Washington law encourages growth in

UGAs. RCW 36.70A.110(1) states, “Each county that is required or chooses to

plan under RCW 36.70A.040 shall designate an urban growth area or areas within

which urban growth shall be encouraged and outside of which growth can occur

only if it is not urban in nature.” (Emphasis added.) The Rossis do not dispute

that the Project lies within Peshastin’s UGA. Because the Project is located in the

Peshastin UGA, it has already been determined that the site of the Project is

appropriate for urban growth and is compatible with adjacent land uses.

The hearing examiner’s finding that the Project complies with the Comprehensive

Plan’s residential policy D, and therefore, the Comprehensive Plan, is supported by

substantial evidence.

18 No. 39614-2-III Rossi Larson LLC, et al. v. Chelan County, et al.

2. POLICY F

The Rossis contend the hearing examiner’s finding that the Project complies with

the Comprehensive Plan’s residential policy F is not supported by substantial evidence.

The Comprehensive Plan’s residential policy F reads: “POLICY F: Encourage

residential growth to occur in areas where public utilities exist or may be provided at

reasonable costs.” CP at 757; Br. of Resp’t Chelan County App. A-027. The rationale

for this policy is “[p]romoting developments in or close to areas with existing public

utilities save not only possible future public expenditures, but should lower the initial cost

of development, thereby providing more reasonably priced housing.” CP at 757; Br. of

Resp’t Chelan County App. A-027.

Bergren points out that the Chelan County PUD No. 1 commented that, though

improvements would be needed to the existing wastewater systems in order to

accommodate development, services could be made available. The Peshastin Water

District also provided a certificate of water availability for the Project. The hearing

examiner noted this in its findings of fact. The Rossis argue that currently there are not

adequate sewer services to serve the Project. Although correct, the Chelan County PUD

No. 1 noted that adequate sewer services could be made available. Policy F “encourage[s]

residential growth to occur in areas where public utilities exist or may be provided.” CP

at 757 (emphasis added). The substantial evidence in the record shows that utilities could

be provided to the project.

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The hearing examiner’s finding that the Project complies with the Comprehensive

Plan’s residential policy F, and therefore, the Comprehensive Plan, is supported by

III. WHETHER THE HEARING EXAMINER ERRED IN FINDING THAT THE PROJECT COMPLIED WITH VARIOUS PROVISIONS OF THE CHELAN COUNTY CODE

The Rossis argue that the hearing examiner’s decision to conditionally approve the

Project was error because the Project does not comply with various CCC provisions,

namely CCC 14.98.525, 11.22.050(6), 10.30.010, 11.22.040, 11.22.050(3)(C), and

12.04.020(1)(E). The Rossis contend the hearing examiner’s decision was erroneous

under RCW 36.70C.130(1)(b), (c) and (d). We disagree.

RCW 36.70C.130(1)(b) does not require the reviewing court to give complete

deference to a local jurisdiction with expertise, but rather, “‘such deference as is due.’”

Ellensburg Cement Prods, 179 Wn.2d at 753. Under RCW 36.70C.130(1)(d), we review

whether the land use decision is a clearly erroneous application of the law to the facts de

novo. Lord, 166 Wn. App. at 818. A finding is clearly erroneous when, although there is

evidence to support it, the reviewing court is left with the “definite and firm conviction

that a mistake has been committed.” Phoenix Dev., 171 Wn.2d at 829.

When reviewing a challenge to the sufficiency of the evidence under RCW

36.70C.130(1)(c), “[w]e view facts and inferences in a light most favorable to the party

that prevailed in the highest forum exercising fact-finding authority,” in this case,

20 No. 39614-2-III Rossi Larson LLC, et al. v. Chelan County, et al.

Bergren and the County. Phoenix Dev., 171 Wn.2d at 828-29. “Under the substantial

evidence standard, there must be a sufficient quantum of evidence in the record to

persuade a reasonable person that the declared premise is true.” Id. at 829 (citing

Wenatchee Sportsmen Ass’n, 141 Wn.2d at 176).

A. DENSITY CALCULATION (CCC 14.98.525)

The Rossis contend the hearing examiner incorrectly interpreted the density code

section and misapplied the law to facts in finding that the Project’s density was 3.18

dwelling units per acre. RCW 36.70C.130(1)(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.”), (d) (“The land use decision is a clearly

erroneous application of the law to the facts.”). The County points out that the Applicant

was not required to state how many dwelling units would be on each lot at this stage and

it was therefore reasonable for him to calculate density by dividing the number acres by

the number of lots. We agree with the County.

The Comprehensive Plan states the density for R-1 is 4 units per acre. On the

other hand, the zoning code states that the maximum density for R-1 is 5 dwelling units

per acre for single-family residences and 10 units per acre for duplexes. CCC

11.22.020(1)(A). Because the CCC requires that PDs, such as the Project, comply with

the Comprehensive Plan, the applicable density is 4 units per acre. Cingular Wireless,

131 Wn. App. at 770; CCC 11.22.050(1); see also CCC 11.22.010(1) (“The purpose of

21 No. 39614-2-III Rossi Larson LLC, et al. v. Chelan County, et al.

this chapter is to provide development regulations for the Peshastin community that are

consistent with, and implement, the Peshastin sub-area comprehensive plan.”).

The application for the Project stated it consisted of a 42.1-acre property divided

into 134 lots. The application also stated that the planned development would include

ADUs, duplexes, single family residences, and zero lot line townhomes. The hearing

examiner found that the Project’s density is 3.18 dwelling units per acre. The hearing

examiner reached this finding by dividing 134 (the number of lots in the Project) by 42.1

(the number of acres in the Project).

The Rossis argue that, because the Project includes duplexes and ADUs, the

correct density calculation is actually double what the hearing examiner found. The CCC

defines density as the “number of dwelling units per unit of land.” CCC 14.98.525. A

“dwelling unit” is “one or more rooms designed, occupied or intended for occupancy as a

separate living quarters with sleeping, sanitary facilities and kitchen facilities provided

within the dwelling unit for the exclusive use of a single household.” CCC 14.98.625.

An ADU is one dwelling unit while a duplex is two dwelling units. CCC 14.98.050;

14.98.605. One ADU is permitted per lot with a single-family home. CCC 11.88.200.

The Rossis correctly point out that if each lot contained either a single-family

home with an ADU, or a duplex, there would actually be 268 dwelling units on 42.1 acres

of land for a density calculation of 6.38 units per acre. This is more than the

Comprehensive Plan allows for an R-1 zoned planned development.

22 No. 39614-2-III Rossi Larson LLC, et al. v. Chelan County, et al.

However, the County responds that there is no requirement that the Applicant state

what use (single-family residence, ADU, duplex, etc.) will be on each individual lot at

this stage. Instead, the hearing examiner made the reasonable assumption there would be

at least one dwelling unit per lot and concluded this complied with CCC 11.22.050. The

County further argues that when the time comes for final permitting for dwellings, the

density limits could not be ignored and the County can and should deny the applications

if density limits were to be exceeded. We agree with the County.

The Rossis speculate that each and every lot will have two dwelling units but this

information was not before the hearing examiner. All the hearing examiner knew was

that there were 134 lots on 42.1 acres. Thus, it was reasonable for him to calculate

density by dividing 134 by 42.1. Further, the hearing examiner’s density calculation of

3.18 dwelling units per acre was well within the Comprehensive Plan’s allowed density

of four dwelling units per acre for R-1. When the time comes for final permitting for

dwellings, the County can and should deny the applications if the Comprehensive Plan’s

density limit is exceeded.

The hearing examiner’s decision was not a clearly erroneous application of the law

to the facts. RCW 36.70C.130(1)(d). Further, it was not an erroneous interpretation of

the law when the hearing examiner interpreted CCC 14.98.525 as being calculated by

dividing the number of lots by the number of acres in the Project because the type and

23 No. 39614-2-III Rossi Larson LLC, et al. v. Chelan County, et al.

number of dwelling units per lot was not known to him at this stage. RCW

36.70C.130(1)(b).

B. INFORMATION ABOUT THE PROJECT’S LAYOUT AND DESIGN (CCC 11.22.050(6))

The Rossis argue that the hearing examiner committed an error of law, presumably

under RCW 36.70C.130(1)(b),7 in concluding that CCC 11.22.050(6) did not apply to the

Project and that the information outlined therein was not required to be included in the

application. The Rossis contend the CCC requires that a subdivision application

accompany a single-family planned development application and that certain information

be included in that application. Bergren responds that a subdivision application,

including the elements listed in CCC 11.22.050(6)(A)-(G), is not required until Bergren

applies for final plat approval for the Project. We agree with Bergren.

CCC 11.22.050(6) states:

(6) Binding Site Plan or Subdivision. A binding site plan is required for all multifamily [Planned Development]s or a subdivision is required for single- family lot [Planned Development]s and shall include the following: (A) All information required on a preliminary plat; (B) The location of all existing and proposed structures; (C) A detailed landscape plan indicating the location of existing vegetation to be retained, location of vegetation landscaping structures to be installed, the type of vegetation by common name and/or taxonomic designation, the installed and mature height of all vegetation;

7 The Rossis again do not cite the exact LUPA standard of review they contend applies.

24 No. 39614-2-III Rossi Larson LLC, et al. v. Chelan County, et al.

(D) Schematic plans and elevations of proposed building(s) with samples of all exterior finish material and colors, the type and location of all exterior lighting, signs and accessory structures; (E) Utility, street and stormwater drainage plans that indicate the facilities, lay-out and capacities necessary to serve the entire [Planned Development]; (F) Inscriptions or attachments setting forth the limitations and conditions of development; and (G) The provisions ensuring the development will be in conformance with the site plan.

The hearing examiner listed the requirements of CCC 11.22.050(6)(A)-(G) and then

found:

[The] proposed Planned Development meets the zoning minimum of 5 dwelling units per acre. The proposal contains a 134-lot residential development on 42.1 acres (3.18 dwelling units per acre) as shown on the updated site plan. The applicant is not pursuing any density increases, therefore none these items need to be met.

CP at 764 (Finding of Fact (FF) 43.4.7.6.9) (emphasis added).

Preliminarily, it is unclear why the fact that Bergren is not seeking a density

increase impacts the need to include the items listed in CCC 11.22.050(6)(A)-(G) in

Bergren’s Project application. Indeed, Bergren points out its Application was for both a

major subdivision and a planned development, but Bergren does not dispute it did not

include the information required in CCC 11.22.050(6)(A)-(G).

However, the Applicant stated that a subdivision would be pursued during final

platting for each phase of the Project. The Rossis do not cite any authority requiring a

subdivision be included with an application for a planned development. Indeed,

25 No. 39614-2-III Rossi Larson LLC, et al. v. Chelan County, et al.

CCC 11.22.050(6) does not require a subdivision be included with a planned

development application.

Given these facts, the Rossis have not demonstrated that the hearing examiner

erroneously interpreted the law under RCW 36.70C.130(1)(b) when he found that

Bergren need not include the items listed in CCC 11.22.050(6)(A)-(G). When Bergren

seeks final plat approval for each phase, a subdivision will be required.

C. REVIEW BY THE AGRICULTURAL REVIEW COMMITTEE (CCC 10.30.010)

The Rossis argue that the hearing examiner committed an error of law (under

RCW 36.70C.130(1)(b)) in his decision on appeal of SEPA determination when he found

that review of the Application by the agricultural review committee (ARC) was not

required. Bergren and the County respond that the ARC does not exist and so review

of the application by it was impossible. The Rossis contend the hearing examiner’s

finding that the ARC does not exist is not supported by substantial evidence in the record.

RCW 36.70C.130(1)(c). We agree with Bergren and the County.

CCC 10.30.010 states: “The primary goal of the ARC would be to review

proposed development, identify potential affects [sic] on surrounding agriculture

(impacts), and make recommendations for mitigation of impacts.” (Emphasis added.)

The hearing examiner found in his decision on appeal of SEPA determination that

“Chelan County has not fully implemented the Agricultural Review Committee.” CP at

1628.

26 No. 39614-2-III Rossi Larson LLC, et al. v. Chelan County, et al.

As a threshold issue, the Rossis argue that the hearing examiner’s finding that the

ARC is not fully implemented is not supported by substantial evidence. The Rossis are

incorrect. Mr. Beardslee testified during the SEPA appeal hearing that Chelan County

did not have an ARC, and he had never seen one convened. The Rossis did not point to

any testimony in the record disputing the fact that the ARC did not exist. Thus, the

hearing examiner’s finding is supported by substantial evidence.

The Rossi’s primary argument is that the hearing examiner erroneously interpreted

the law when he did not require review of the application by the ARC. Bergren and the

County concede the application was not reviewed by the ARC but argue that it would

have been impossible for the ARC to review the application since the committee did not

exist. It would be futile to require Bergren’s application be reviewed by the ARC when

none existed. If we were to require the nonexistent ARC to review Bergren’s application,

or any other application, they could never be approved. Thus, the hearing examiner did

not erroneously interpret the law or otherwise err by declining to require review of

Bergren’s application by the ARC.

D. 100-FOOT SETBACK (CCC 11.22.040)

The Rossis argue that the hearing examiner erroneously interpreted the law under

RCW 36.70C.130(1)(b) when he determined that the 100-foot setback in CCC 11.22.040

was not required. Bergren responds that the hearing examiner did not err because the

27 No. 39614-2-III Rossi Larson LLC, et al. v. Chelan County, et al.

100-foot setback does not apply to existing agricultural activities, but instead only applies

to properties zoned commercial agriculture (AC). We agree with Bergren.

CCC 11.22.040(1) n.6 states that “[s]etbacks may be modified consistent with

Section 11.88.040. Structures located adjacent to existing commercial agricultural

activities will be required to have a one-hundred-foot setback, except when a waiver is

recorded in accordance with Chapter 11.30.” The hearing examiner, in his findings and

conclusions, discussed CCC 11.22.040 and its setback requirements but did not discuss

nor require a 100-foot setback.

Bergren points out that CCC 11.88.040(8), referenced in CCC 11.22.040(1) n.6,

states, “No dwelling unit adjacent to the commercial agricultural zoning district shall be

placed within one hundred feet of a property line, including those across a right-of-way.”

(Emphasis added.) Additionally, chapter 11.30, also referenced in CCC 11.22.040(1) n.6,

is Chelan County’s AC zoning chapter. Finally, CCC 11.22.040(1) n.6 states that

structures located adjacent to “existing commercial agricultural activities” are required to

have a 100-foot setback. (Emphasis added.) The code is clear⎯the 100-foot setback

referenced in CCC 11.88.040(8) is only applicable to properties zoned AC. Because

none of the properties adjacent to the Project are zoned AC, a 100-foot setback was not

required and the hearing examiner did not erroneously interpret the law.

The Rossis argue that if we were to read the code as only requiring a 100-foot

setback for properties zoned AC, CCC 11.88.040(8) would be a nullity because chapter

28 No. 39614-2-III Rossi Larson LLC, et al. v. Chelan County, et al.

11.22 applies only to the Peshastin UGA and there are no AC zoning districts in the

UGA. The Rossis’ argument is unpersuasive. Though there are no AC zoning districts

within the Peshastin UGA, a portion of the Peshastin UGA borders land zoned AC.

Thus, CCC 11.88.040(8) is not a nullity. If the land in the Peshatin UGA that borders

land zoned AC was developed, it would potentially require a 100-foot setback.

E. OPEN SPACE REQUIREMENT (CCC 11.22.050(3)(C))

The Rossis argue that the hearing examiner’s decision was both not supported by

substantial evidence and was clearly erroneous when he found that the open space criteria

applicable to the Project were met. RCW 36.70C.130(1)(c), (d).8 Bergren responds that

the hearing examiner’s determination that the open space requirements applicable to the

Project were met was not error. We agree with Bergren.

CCC 11.22.050(3)(C) states:

The overall area within a PD that is required to be devoted to critical areas, on-site recreation and/or open space shall be no less than six hundred square feet per residential unit, and in no case shall there be less than ten percent of the overall development devoted to these areas.

8 The Rossis also argue that the hearing examiner erroneously interpreted the code but, again, they do not point to any code interpretation that the hearing examiner made. Instead, the Rossis seem to only argue that the hearing examiner’s finding was erroneous and not supported by substantial evidence.

29 No. 39614-2-III Rossi Larson LLC, et al. v. Chelan County, et al.

Further, the code requires that at least 10,000 square feet or 60 percent of the open

space, whichever is greater, be concentrated in contiguous usable areas (CCC

11.22.050(3)(B)(i)), that a minimum of 60 percent of the open space must be

concentrated or connected into large usable areas (CCC 11.22.050(14)(C)), and that

the open space be reasonably level with no slopes greater than 15 percent. (CCC

11.22.050(14)(E)).

The hearing examiner found that the Project exceeded the open space design

requirements of the CCC. The hearing examiner also conditioned approval upon the

Applicant submitting “[a] final landscaping plan demonstrating conformance with On-

Site Recreation and/or Open Space Design Requirements” during the final platting for

each phase of the planned development. CP at 775.

The Rossis argue that the Project does not meet the open space requirements of

the CCC. Namely, they argue that the open space is broken up into isolated tracts, that

the largest continuous tract is only 42.5 percent of the total open space, and that the

slopes in some areas far exceed 15 percent. Thus, they argue that the hearing examiner’s

finding that the Project meets the open space requirements is not supported by substantial

evidence and was an erroneous application of the law to the facts.

30 No. 39614-2-III Rossi Larson LLC, et al. v. Chelan County, et al.

Bergren correctly points out that the Project complies with the code’s open space

requirements. The Project set aside 6.1 acres9 of open space, which is more than 10

percent of the total 42.1-acre property. Further, County staff testified that the open

space was continuous because there are trail connections that the code expressly allows.

CCC 11.22.050(3)(B)(i) (“The on-site recreation may include a combination of natural

areas, parks, landscaped areas, trails, and/or visual corridors; provided, that a minimum

of ten thousand square feet or sixty percent of the on-site recreation, whichever is greater,

is contiguous usable space.” (Emphasis added.)); CCC 11.22.050(14)(C) (“A minimum

of sixty percent of the on-site recreation or open space shall be concentrated and/or

connected into large usable areas.” (Emphasis added.)). Because the open space is

connected via trail systems, CCC 11.22.050(14)(C) and CCC 11.22.050(3)(B)(i) are

satisfied.

Finally, as to CCC 11.22.050(14)(C) and (E), Bergren points out that the

Conditioned Approval requires these code sections be complied with and the hearing

examiner explicitly referenced the code language in its findings. Though the slopes may

9 Bergren and the Rossis repeatedly state the Project set aside 4.3 acres of open space. However, the findings reflect that the Applicant set aside 6.1 acres of open space. CP at 767 (FF 43.4.7.14.6). FF 43.4.7.14.6 also states that the property is 42.9 acres instead of 42.1. Regardless, 4.3 acres of open space would be more than 10 percent of the property even if the property is actually 42.9 acres, and 6.1 acres of open space is well over the 10 percent requirement.

31 No. 39614-2-III Rossi Larson LLC, et al. v. Chelan County, et al.

be greater than 15 percent now, they may be graded and leveled later and the hearing

examiner made this a condition of approval.

Thus, the hearing examiner’s finding that the Project complies with the code’s

open space requirements is supported by substantial evidence and the hearing examiner’s

decision was not clearly erroneous.

F. APPROPRIATE WATER, SEWER, AND OTHER UTILITIES FOR PROJECT (CCC 12.04.020(1)(E))

The Rossis argue that the hearing examiner’s finding that the Project complies

with CCC 12.04.020(1)(E) is not supported by substantial evidence and is a

misapplication of the law to the facts. RCW 36.70C.130(1)(c), (d). As a threshold

matter, this argument is raised for the first time on reply and we may decline to address it.

In re Marriage of Bernard, 165 Wn.2d 895, 908, 204 P.3d 907 (2009). Nevertheless, in

exercising our discretion, the issue is addressed below.

CCC 12.04.020(1)(E) states:

Each proposed land division shall be reviewed to ensure that:

....

. . . Appropriate water, sewer and other utility provider(s) can approve potable water, sewer system, and other facilities necessary for each lot created by the division of land except where the open space tract, agricultural tract, conservation easements, or other non-buildable tracts are exempt from this requirement when noted on the plat that this ‘tract(s) may not be suitable for development.’

32 No. 39614-2-III Rossi Larson LLC, et al. v. Chelan County, et al.

The hearing examiner found that “[a]s submitted, the proposed major subdivision is

consistent with the provisions of [CCC 12.04.020.]” CP at 770 (FF 45).

As previously noted, Chelan County PUD No. 1 commented that, though

improvements would be needed to the existing wastewater systems in order to

accommodate development, services could be made available. The Peshastin Water

District also provided a certificate of water availability for the Project. The hearing

examiner noted this in its findings of fact. The hearing examiner also conditioned

approval on adequate utilities being provided to the Project. CP at 756 (“The applicant

will be responsible for improving the local water and wastewater infrastructure as a

condition of approval.”). The Rossis argue that currently there are not adequate utilities

to serve the Project. Although this may be accurate, the code does not require that

utilities be presently available. It only requires that utility providers be able to approve

the facilities necessary for each lot. Chelan County PUD No. 1 and the Peshastin Water

District stated that they could and the hearing examiner required that the Applicant

improve utilities as a condition of approval.

Thus, the hearing examiner’s finding that the Project is consistent with CCC

12.04.020 is supported by substantial evidence and was not a misapplication of the law to

the facts.

33 No. 39614-2-III Rossi Larson LLC, et al. v. Chelan County, et al.

IV. WHETHER THE HEARING EXAMINER’S DECISION UPHOLDING THE MDNS WAS ERROR

The Rossis argue that the hearing examiner’s decision upholding the MDNS

violates SEPA for a multitude of reasons. The Rossis contend the hearing examiner

incorrectly found that the County had adequate information to make a threshold

determination because the Project’s effect on stormwater, erodible soils, and

contamination result in environmental hazards that have not been analyzed. They also

argue that the application of Ecology’s Model Remedy to remediate contamination

results in significant health risks, that land use conflicts between residential and

agricultural uses were not addressed, that traffic impacts were not addressed, and that

impacts to irrigation were not considered. The Rossis further posit that because

significant impacts result from the Project, an EIS should have been required.

Bergren and the County respond that the County considered substantial

information that was sufficient to evaluate the Project’s environmental impact and to

issue a threshold determination. They contend any environmental impacts of the Project

were adequately addressed and mitigated by the MDNS. We agree with Bergren and the

County.

SEPA is our legislature’s pronouncement of Washington’s environmental policy.

Stempel v. Dep’t of Water Res., 82 Wn.2d 109, 117, 508 P.2d 166 (1973). SEPA

recognizes “the necessary harmony between humans and the environment in order to

34 No. 39614-2-III Rossi Larson LLC, et al. v. Chelan County, et al.

prevent and eliminate damage to the environment and biosphere, as well as to

promote the welfare of humans and the understanding of our ecological systems.” Id.

SEPA requires that environmental values and amenities are given appropriate

consideration, along with economic and technical considerations, in decision making.

RCW 43.21C.030(2)(c). Thus, SEPA requires that an EIS be prepared for “major actions

significantly affecting the quality of the environment.” Id. Our Supreme Court has not

defined the term “significantly affecting,” instead stating that “the procedural

requirements of SEPA, which are merely designed to provide full environmental

information, should be invoked whenever more than a moderate effect on the quality of

the environment is a reasonable probability.” Norway Hill Preserv. & Prot. Ass’n v. King

County Council, 87 Wn.2d 267, 278, 552 P.2d 674 (1976).

SEPA requires evaluation of a proposal’s environmental impact by examining two

relevant factors: “(1) the extent to which the action will cause adverse environmental

effects in excess of those created by existing uses in the area, and (2) the absolute

quantitative adverse environmental effects of the action itself, including the cumulative

harm that results from its contribution to existing adverse conditions or uses in the

affected area.” Id. at 277.

Before a local government processes a permit application for a private land use

project, the agency conducts a threshold process in order to determine whether an action

qualifies as a “major action[ ] significantly affecting the quality of the environment.”

35 No. 39614-2-III Rossi Larson LLC, et al. v. Chelan County, et al.

RCW 43.21C.030(2)(c). “In order to facilitate the ‘threshold determination,’ the

applicant must prepare an environmental checklist, which must provide information

reasonably sufficient to evaluate the environmental impact of the proposal.” Anderson v.

Pierce County, 86 Wn. App. 290, 301, 936 P.2d 432 (1997) (citing WAC 197-11-315 to

-335). If the environmental checklist does not contain enough information to make a

threshold determination, the applicant may be required to submit additional information.

WAC 197-11-335(1). The agency must consider mitigation measures that the applicant

will implement and any such measures required by regulations, comprehensive plans, or

other environmental laws. WAC 197-11-330(1)(c).

Following the threshold phase, the agency issues one of three determinations:

a determination of nonsignificance, an MDNS, or a determination of significance

(DS). WAC 197-11-340 to -350. An EIS is mandatory following issuance of a DS.

RCW 43.21C.030(2)(c); WAC 197-11-440(5). Under the MDNS process, an applicant

can avoid EIS preparation by clarifying, changing, or conditioning the project to mitigate

its significant adverse environmental impacts. WAC 197-11-350(3). But, if, even with

mitigation measures, the project continues to have significant environmental impacts, an

EIS must be prepared. WAC 197-11-350(2).

“A threshold determination that an EIS is not required is reviewed under the

‘clearly erroneous’ standard.” Chuckanut Conservancy v. Dep’t of Nat. Res.,

156 Wn. App. 274, 286, 232 P.3d 1154 (2010) (quoting Norway Hill, 87 Wn.2d at 273);

36 No. 39614-2-III Rossi Larson LLC, et al. v. Chelan County, et al.

RCW 36.70C.130(1)(d). This court will overturn an MDNS only when “the reviewing

court on the entire evidence is left with the definite and firm conviction that a mistake has

been committed.” Norway Hill, 87 Wn.2d at 274. “The scope of review is broad and the

search for significant environmental impacts must be considered in light of the public

policy of SEPA.” Chuckanut Conservancy, 156 Wn. App. at 286 (citing Sisley v. San

Juan County, 89 Wn.2d 78, 84, 569 P.2d 712 (1977)).

The agency’s threshold determination is afforded deference but the agency must

make a showing that environmental factors were considered in a manner amounting to

a prima facie showing of compliance with the procedural requirements of SEPA.

RCW 43.21C.090; Chuckanut Conservancy, 156 Wn. App. at 286-87. An agency’s

decision to issue an MDNS and not to require an EIS is afforded substantial weight.

Moss v. City of Bellingham, 109 Wn. App. 6, 13-14, 31 P.3d 703 (2001).

The Rossis argue that the hearing examiner’s decision affirming the MDNS

violates SEPA. We disagree.

A. STORMWATER, ERODIBLE SOILS, AND SOIL CONTAMINATION

The Rossis argue that the Project’s stormwater, erodible soils, soil contamination,

and resulting health risks have not been adequately analyzed. Bergren responds that the

County used Ecology’s Model Remedy and additional mitigation conditions to overcome

concerns about lead arsenic contamination and that the County had sufficient information

on this point to make a threshold determination. We agree with Bergren.

37 No. 39614-2-III Rossi Larson LLC, et al. v. Chelan County, et al.

The County had adequate information related to the environmental hazards posed

by stormwater runoff, erodible soils, and soil contamination to make a threshold

determination and issue an MDNS. As to soil contamination, the County considered the

comment letter from Ecology and implemented Ecology’s recommendations regarding

soil contamination.

As to stormwater, the MDNS stated that “[p]ermit coverage and erosion control

measures must be in place prior to any clearing, grading, or construction.” CP at 1387.

This was consistent with another comment letter from Ecology stating that it

recommended a national pollution discharge elimination system construction stormwater

general permit that requires a stormwater pollution prevention plan be prepared and

implemented for all construction sites. Finally, as to erodible soils, the MDNS stated that

“[d]ust control shall be maintained during any earth disturbing activities during

construction and installation.” CP at 1387.

The Rossis also seem to argue that the hearing examiner’s conclusion on appeal of

the SEPA determination⎯that “the threshold determination in this matter is based upon

sufficient information contained within the SEPA checklist, or later developed by the

responsible agency, and it fully and fairly evaluates all known or probable environmental

impacts”⎯is not supported by substantial evidence. CP at 1629. We disagree.

The Rossis’ argument is primarily that their expert, Ms. Saltanovitz, disagreed

with the MDNS’s conditions and argued they were inadequate to properly mitigate the

38 No. 39614-2-III Rossi Larson LLC, et al. v. Chelan County, et al.

Project’s impacts. She testified that there were many issues with the Project’s plan to

contain and control stormwater. The Rossis point again to Ms. Saltanovitz’s testimony

regarding stormwater and argue that the hearing examiner erred when it found her

testimony “not . . . convincing.” CP at 1627. Again, the hearing examiner made a

credibility determination that we will not disturb on appeal.

As to the erodible soils and soil contamination, the Rossis again point to Ms.

Saltanovitz’s testimony on these points. Ms. Saltanovitz testified she did not see

disclosure of erosive soils and their potential impacts in the environmental checklist or

the County’s SEPA documents. However, the MDNS Conditioned Approval on a toxic

cleanup plan approved by Ecology and the Project meeting the standards of the Model

Toxics Control Act, chapters 70A.305, 82.21 RCW, prior to occupancy. This comports

with Ecology’s recommendation that “Chelan County implement [cleanup of the Project

prior to occupancy] through Conditions of Approval.” CP at 1586.

In issuing the MDNS, the County considered and implemented Ecology’s

comments regarding soil contamination and cleanup. The SEPA responsible official had

sufficient facts and information, provided primarily by Ecology, to assess the impacts of

stormwater, and erodible and contaminated soils and issue an MDNS. Further, the

hearing examiner’s conclusion that there was sufficient information to make a threshold

determination is supported by substantial evidence.

39 No. 39614-2-III Rossi Larson LLC, et al. v. Chelan County, et al.

B. APPLICATION OF ECOLOGY’S MODEL REMEDY TO REMEDIATE CONTAMINATION

The Rossis argue that the application of Ecology’s Model Remedy for orchard

cleanup was not sufficient to remediate the contamination of the site of the Project. We

disagree.

The Rossis simply disagree that the Model Remedy is the proper method of

cleanup. They take issue with the way the Model Remedy seeks to clean up the Project

site. The Rossis contend that cleanup will be piecemeal and that, therefore, the first

purchasers of homes will have the worst health impacts as dirt and dust is disturbed to

build new homes in subsequent phases. They also contend the Model Remedy and the

model remedy developer agreement do indeed push cleanup responsibility on to

homeowners even though the MDNS states that they do not.

The Rossis’ first argument, that the Model Remedy calls for piecemeal cleanup of

the site, does not appear to be supported by the record. The MDNS states that “Ecology

requires cleanup of this project prior to occupancy. Cleanup shall meet the requirements

of Ecology’s Model Remedies for Cleanup of Former Orchard Properties in Central and

Eastern Washington. Ecology will provide technical guidance to the applicant and

provide oversight to confirm that cleanup is completed.” CP at 1387 (emphasis added).

The plain language of the MDNS requires that the entire site be cleaned up prior to

occupancy. The record lacks evidence of a piecemeal cleanup.

40 No. 39614-2-III Rossi Larson LLC, et al. v. Chelan County, et al.

As to the Rossis’ argument that the MDNS has conflicting directives, on one hand

mandating cleanup by developers and on the other hand putting the burden on home

purchasers, their argument is unpersuasive. The record does not support the Rossis’

contention that the model remedy developer agreement pushes the burden to clean the

site onto homebuyers or homebuilders.

The model remedy developer agreement, which the MDNS mandates be used,

states that “[t]he developer is responsible for ensuring that the remedy is completed

during general site development activities and prior to final plat approval.” CP at 919.

Further, “[f]uture homebuilders are responsible for ensuring appropriate remedy

implementation on individual lots, prior to issuance of a certificate of occupancy for the

residence on that lot.” CP at 919. One of the requirements of the agreement is that a

certificate of completion be issued confirming that the lot has been properly cleaned up

before a certificate of occupancy will be issued. Thus, the model remedy developer

agreement requires the “Property Owner and/or their contractor/homebuilder” to record a

“‘Residential Building Self-Certification’ form,” verifying cleanup has occurred, with the

county auditor’s office. CP at 923.

The model remedy developer agreement only seems to require home purchasers

and builders to confirm cleanup has occurred by the developer, not to do the cleanup

themselves. Thus, the Rossis’ argument on this point fails.

41 No. 39614-2-III Rossi Larson LLC, et al. v. Chelan County, et al.

The Rossis, aside from voicing their disagreement with the Model Remedy as the

method of cleanup, do not make a persuasive argument that it was insufficient to

remediate the contamination of the Project site. If the Model Remedy is applied and the

Project site is properly cleaned up, as the MDNS requires it to be, environmental and

health impacts will be properly mitigated.

C. LAND USE CONFLICTS BETWEEN RESIDENTIAL AND AGRICULTURAL USES

The Rossis argue that land use conflicts between the Planned Development and

existing orchards exist that were not mitigated or buffered.

WAC 197-11-960(8)(a) requires that the environmental checklist ask: “What is the

current use of the site and adjacent properties? Will the proposal affect current land uses

on nearby or adjacent properties?” The Rossis argue that agricultural noises, smells, and

pesticide drift from nearby orchards will impact the planned development and its

occupants. However, the question is not: “How will the adjacent properties affect the

proposal?” It is: “How will the proposal affect nearby properties?”

The Rossis do not explain what adverse effect the Project will have on nearby

orchards other than to say new residents will complain about the nearby orchard owners’

annoying farming practices. Yet, the orchard owners’ lawful farming practices are

protected from nuisance liability under Washington’s right to farm statute. RCW

7.48.305; Buchanan v. Simplot, 134 Wn.2d 673, 680, 925 P.2d 610 (1998).

Further, the hearing examiner on appeal of the SEPA determination noted:

42 No. 39614-2-III Rossi Larson LLC, et al. v. Chelan County, et al.

The zoning for this area, set by Chelan County Board of Commissioners, is Low-Density Residential in the Peshastin Urban Growth Area. At the time the County set this zone, the area of the new zone was adjacent to active orchard uses. Therefore, the Chelan County Board of Commissioners has already determined that the current zoning for the subject property is compatible with adjacent and neighboring agricultural uses.

CP at 1625. As he pointed out, the Project is located within the Peshastin UGA that was

slated for future development. The Board of County Commissioners determined that this

area was appropriate for urban growth when it designated it as part of the UGA. The

Rossis’ land use compatibility grievances should have been taken up with the Board of

County Commissioners when they were designating land in Peshastin as a part of the

UGA and adopting the Comprehensive Plan.

There was nothing for the MDNS to address regarding land use compatibility.

The Rossis do not explain how the Project will impact adjacent orchard owners and the

environmental checklist question they cite to does not require consideration of adjacent

orchard owners’ impact on the Project. Buyers of homes in the planned development

must do so knowing they are near property being used for agricultural purposes.

D. TRAFFIC IMPACTS

The Rossis argue that the hearing examiner erred on appeal of the SEPA

determination when he concluded traffic impacts were adequately addressed in the

MDNS. The Rossis contend that traffic impacts were not adequately addressed by the

MDNS and that traffic issues still need to be mitigated.

43 No. 39614-2-III Rossi Larson LLC, et al. v. Chelan County, et al.

The MDNS states the Applicant must construct Larson Road and Derby Canyon

Road to meet the construction design of a rural collector road design and that intersection

improvements are required pursuant to the revised TIS comments issued by Chelan

County Public Works. The hearing examiner on appeal of the SEPA determination

concluded the MDNS adequately mitigated any adverse traffic impacts.

The Rossis argue that their expert’s testimony⎯that the TIS was inadequate⎯

should have been adopted by the hearing examiner. The Rossis again take issue with the

hearing examiner’s finding that their expert was less convincing than Bergren’s and the

County’s.

In regard to the data Ms. Leingang used to form her opinions, she testified that she

did not collect data regarding traffic counts but instead based her opinions on information

she gathered from local residents, “employees in the area,” and a February site visit. CP

at 225. She further testified that she did not do “any additional data collection” other

than what was done in the TIS. CP at 224, 1062-72. But her overarching opinion was

that the TIS contained inaccurate background conditions, the wrong peak-hour window,

and the wrong analysis at the primary intersection. She testified that all of these items

undermined the TIS’s stated traffic impacts of the Project. Yet, Ms. Leingang did not do

her own data collection. The hearing examiner specifically found that the “factual study

and opinions by traffic expert, Michael Reed [sic] were more convincing that [sic] those

opinions issued by Appellant’s expert, Kassi Leingang.” CP at 1627.

44 No. 39614-2-III Rossi Larson LLC, et al. v. Chelan County, et al.

We accept the “factfinder’s views regarding the credibility of witnesses and the

weight to be given reasonable but competing inferences.” City of Univ. Place, 144

Wn.2d at 652. We will not find persuasive what the hearing examiner found

unconvincing. The MDNS required improvements to Larson Road and Derby Canyon

Road as well as intersection improvements pursuant to the TIS and comments issued by

Chelan County. The required improvements adequately mitigated traffic impacts posed

by the Project.

E. IMPACTS TO ORCHARD IRRIGATION

The Rossis argue that the impacts to orchard irrigation water posed by the Project

were not considered and that this was error. Bergren responds that the Rossis’ concerns

regarding impacts to irrigation are entirely speculative.

The Rossis argue that the failure to identify irrigation line easements on the

Property, along with the failure to consider the impacts that new users will have on the

water supply, was error. In its decision on the SEPA appeal, the hearing examiner stated:

Regarding the claimed environmental impacts regarding waterlines passing through the property, the Hearing Examiner specifically finds that there is no factual or opinion evidence proving, by a preponderance of the evidence, that the irrigation lines through the subject property will be eliminated or otherwise disrupt the flow of water to adjacent properties. The Hearing Examiner finds that these claimed impacts are clearly speculative. Irrigation water rights will not be impacted by the project. It’s important to note that the Icicle Irrigation District was informed of the application and chose not to comment.

CP at 1627 (emphasis added).

45 No. 39614-2-III Rossi Larson LLC, et al. v. Chelan County, et al.

The hearing examiner’s finding is supported by substantial evidence. When asked

if new users of the irrigation system would impact his water supply, Nick Rossi testified

that he did not think “it directly affects our access to our water supply.” CP at 248.

Instead, his concerns were that people in the area would walk near or gather near his

irrigation canal.

The Rossis speculate as to whether construction would potentially damage

underground irrigation lines or make it difficult to access them in the event repairs were

needed. These claims are speculative and the Rossis offer no citations to the record or

law to support them.

The Rossis also argue in passing that the site plan violates the CCC because

irrigation easements were not identified. CCC 12.12.020(1)(D) states:

Every preliminary application for a land division shall consist of the appropriate application form, applicable fees and the following:

(1) One copy of the preliminary map(s) which shall be legibly drawn at a standard engineering scale suitable to show the details necessary for review and shall include: .... (D) Map of all easements, their purpose and dimensions, as known.

However, the final plat is required to show all easements that benefit and burden

the site. Further, CCC chapter 12.12 is titled “Subdivisions” and, as previously

detailed, a subdivision is not required until final plat approval.

46 No. 39614-2-III Rossi Larson LLC, et al. v. Chelan County, et al.

The Rossis’ arguments regarding impacts to orchard irrigation are

speculative. The MDNS did not need to mitigate impacts to irrigation water

because none are present.

F. WHETHER AN EIS SHOULD HAVE BEEN REQUIRED

Finally, the Rossis argue that an EIS should have been required because there are

significant environmental impacts resulting from the Project that are not addressed or

mitigated. For the reasons stated above, an EIS was unnecessary. The MDNS

appropriately mitigated any significant environmental impacts resulting from the Project.

CONCLUSION

Finding no error in the hearing examiner’s decision affirming issuance of the

MDNS, we affirm.

A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.

Cooney, J.

WE CONCUR:

Fearing, C.J. Pennell, J.