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Kiewit Construction Group Inc. v. Clark County

August 16, 1996

KIEWIT CONSTRUCTION GROUP, INC., A DELAWARE CORPORATION, AND GILBERT WESTERN CORP., A DELAWARE CORPORATION, APPELLANTS,
v.
CLARK COUNTY, WASHINGTON; A MUNICIPAL CORPORATION; CLARK COUNTY BOARD OF COMMISSIONERS BEING DAVID W. STURDEVANT, CHAIRMAN, BUSSE NUTLEY, COMMISSIONER, AND JOHN C. MAGNANO, COMMISSIONER, RESPONDENTS, AND SOUTH CLARK COUNTY NEIGHBORHOOD COALITION, VILLAGE AT FISHER'S LANDING HOMEOWNERS' ASSOCIATION, STEAMBOAT LANDING HOMEOWNERS' ASSOCIATION, VISTA DEL RIO CHAPTER NO. 67 MOBILE HOME OWNER'S ASSOCIATION, AND MARY C. WOOD, INTERVENORS.



Superior Court of Clark County. Superior Court Docket No. 93-2-03962-3. Date Filed In Superior Court: September 27, 1994. Superior Court Judge Signing: Barbara Johnson.

Written By: Armstrong, J., Concurred In By: Houghton, A.c.j., Turner, J.

The opinion of the court was delivered by: Armstrong

ARMSTRONG, J. -- Gilbert Western applied for a conditional use permit (CUP) to build an asphalt manufacturing plant. A hearings officer granted the permit with conditions. On appeal to the Clark County Board of Commissioners, the Board ruled that a supplemental environmental impact statement was required; in the alternative, the Board granted the CUP subject to a condition requiring construction of freeway ramps. The Superior Court affirmed and, on appeal, Gilbert Western argues that: (1) the Board was required to uphold the hearing examiner if substantial evidence supported his decision; (2) the final EIS was adequate and a supplemental EIS should not have been required; and (3) the condition placed upon grant of the CUP was impermissible. We affirm.

FACTS

In 1990, Gilbert Western Corporation, a wholly-owned subsidiary of Kiewit Construction, applied to Clark County ("County") for a CUP to operate an asphalt manufacturing plant at its rock quarry along the Columbia River east of Vancouver.

In response, the County determined that an EIS was required. The draft EIS was published in December 1992 and was followed by an extended comment period, ending February 2, 1993. The final EIS was published approximately two months later, and after a public hearing, the county hearings examiner approved the CUP with a number of conditions. Among the conditions were several aimed at mitigating the effect of increased truck traffic in the area.

Several concerns prompted the traffic conditions. The quarry and proposed asphalt plant are reached via an access road from the Evergreen Highway. The quarry access road slopes steeply downward toward Evergreen Highway and enters it at a sharp angle. The angle is so sharp that trucks cannot turn directly onto the highway, but must first make a wide looping turn onto a paved shoulder turn-out on the opposite side of Evergreen Highway. This can affect vehicles waiting to enter the intersection.

Another concern is that the additional truck traffic will use a one-mile stretch of Evergreen Highway between the access road and State Route 14. Evergreen Highway is an old two-lane road that parallels the Columbia River and has been designated a scenic route. The County is planning a bicycle trail along Evergreen Highway. State Route 14, a limited access highway, runs parallel to the Evergreen Highway, but no access connects State Route 14 to the quarry's access road. Thus, trucks carrying asphalt must traverse a stretch of Evergreen Highway to reach State Route 14.

Gilbert Western estimates that the asphalt plant will generate an additional 43 two-way truck trips per day entering and leaving the site, or 86 "trip-ends." On hot, sunny days, during peak asphalt production, the number of truck "trip-ends" is estimated to be between 100 and 125. This coincides with projected peak use of the planned bicycle trail.

Citizens concerned about the plant appealed the hearing examiner's decision to the Clark County Board of Commissioners (the Board). On November 10, 1993, the Board passed a resolution finding that the EIS inadequately disclosed and discussed traffic concerns, particularly the safety hazards posed by increased truck traffic along Evergreen Highway. The Board ordered a supplemental EIS (SEIS) on this issue. In the alternative, the Board granted the CUP on the condition that Gilbert Western construct on-and off-ramps from the quarry access road to State Route 14, allowing trucks to bypass Evergreen Highway completely.

Gilbert Western petitioned Clark County Superior Court for a writ of certiorari or mandamus. Gilbert Western stipulated to intervention by the South Clark County Neighborhood Coalition and other homeowners' associations. The court affirmed the Board's decision, and this appeal followed.

Discussion

A. Standard of Review/Procedural Issue

Adequacy of an EIS is a question of law subject to de novo review. Klickitat County Citizens Against Imported Waste (Citizens) v. Klickitat County, 122 Wash. 2d 619, 632, 860 P.2d 390 (1993), 866 P.2d 1256 (1994). The State Environmental Policy Act (SEPA) provides, however, that in any action involving the adequacy of an EIS, "the decision of the governmental agency shall be accorded substantial weight." RCW 43.21C.090; see ...


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