En Banc. Dore, C.j. Utter, Dolliver, Andersen, Durham, Smith, and Guy, JJ., concur. Brachtenbach, J., and Callow, J. Pro Tem., concur by separate opinion; Johnson, J., did not participate in the disposition of this case.
The Jefferson County Board of Commissioners seeks review of a Court of Appeals decision directing it to issue a building permit to respondent Benjamin Levine. The Board contends the Court of Appeals did not have the authority to order it to issue the permit without the mitigative restrictions it imposed pursuant to the State Environmental Policy Act of 1971 (SEPA). Levine contends the restrictions cannot be sustained either because the record does not justify their imposition or because Jefferson County does not have identifiable policies to support them as required by SEPA.
Facts and Procedure Below
On August 25, 1986, respondent Benjamin Levine applied to appellant Jefferson County for a building permit to build a commercial small log sawmill. The County determined the sawmill was a project under SEPA. On September 16,
1986, the Board issued a determination of nonsignificance*fn1 pursuant to SEPA after reviewing an environmental checklist and other information on file with the Jefferson County Planning Department. After a 15-day period for public comment, and over Levine's objections, the Board added nine mitigative restrictions to the determination of nonsignificance. These conditions required a buffer around the mill site, limited hours of operation, hooded lighting, forward traffic flow, no parking or loading on county roadways, compliance with noise abatement regulations, and disposal of wood waste and drainage that does not affect groundwater. The Board approved the building permit and mitigative restrictions, and the permit incorporating the restrictions was issued on October 29, 1986. Levine appealed the imposition of the mitigative restrictions to superior court. The record below and briefs were submitted, but no additional testimony was taken. The court determined that the Board lacked authority to impose mitigative restrictions without agreement or request for them by the proponent of the project. The court ordered the Board to issue the building permit without them. "Findings of Fact and Conclusions of Law and Judgment" were filed August 14, 1987.
The Court of Appeals accepted review and held that the trial court had erred, stating that an agency may impose mitigative restrictions after a determination of nonsignificance under the substantive authority of SEPA even though the proponent does not request the restrictions. The court also held that the Board had failed to satisfy procedural requirements of RCW 43.21C.060, i.e., the Board had failed to cite in writing either the agency's policies underlying the mitigative restrictions or the specific environmental
impacts sought to be mitigated. The Court of Appeals initially reversed and remanded to the Superior Court with instructions to enter an order directing the Board to reconsider the application.
The Court of Appeals then granted Levine's motion for reconsideration and withdrew its original opinion. Levine v. Jefferson Cy., 57 Wash. App. 1002 (1990). The court issued virtually the same opinion but changed the last paragraph. The new opinion stated that Levine should not be required to wait any longer for the County to repair its mistakes, and ordered the permit issued without the mitigative restrictions attached. The building permit had been issued at that point and Levine had at least partly built his sawmill.
The County petitions this court. Although it concedes that it failed to identify the policies underlying its mitigative restrictions, it contends that the Court of Appeals improperly ordered the building permit to issue without the restrictions instead of remanding to the County's Board of Commissioners so the Board could identify its policies in writing as required by SEPA. Levine contends that the record does not justify the imposition of the mitigative restrictions and that the policies contained in the Jefferson County Comprehensive Plan and ordinances are not sufficiently specific to support them and, therefore, the permit must be issued without them.
The primary issue is whether the Court of Appeals correctly ordered the building permit issued without mitigative conditions or whether the court should have remanded to allow the County's Board of Commissioners to identify its policies in writing.
As a preliminary matter, we note that the parties in their briefs do not challenge the Court of Appeals holding that the County had legal authority to attach the mitigative restrictions despite the fact that Levine did not request ...