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Foster v. King County

August 26, 1996


Superior Court County: King. Superior Court Cause No: 94-2-14989-0-SEA. Date filed in Superior Court: 12/23/94. Superior Court Judge Signing: Michael Spearman.

Written by: Webster, J. Concurred by: Kennedy, Acj, Grosse, J.

The opinion of the court was delivered by: Webster

WEBSTER, J.-- Steven and Terry Ann Foster appeal a summary judgment order dismissing their complaint for writ of review of a SEPA threshold determination. We affirm because interlocutory judicial review of threshold determinations is not available under SEPA or by statutory writ, and the trial court did not abuse its discretion in denying a constitutional writ. The Fosters also appeal the court's dismissal of their claim for damages under RCW 64.40. Because the damages claim must be heard with the related SEPA claim, we affirm.


The Fosters own a dairy farm in Carnation, Washington. In 1988, they applied for a conditional use permit to create a water-ski pond on the property. King County issued a Determination of Significance (DS) under the State Environmental Policy Act (SEPA), requiring an environmental impact study (EIS). See RCW 43.21C.031. The Fosters withdrew their application, but began excavating without a permit in 1992. When the County learned of the project, it issued a stop work order. After the Fosters submitted a proposal for a "critter pond," the County granted an emergency exemption, allowing them to complete the grading. They continued the excavation at night, however, exceeding the scope of the exception. The County initiated an injunction and enforcement action. The superior court issued a preliminary injunction and ordered the Fosters to perform certain tests and actions on the property and to apply retroactively for grading and Shoreline Substantial Development permits. They applied for a grading permit and submitted an environmental checklist, stating that the 2,000 by 250 foot pond was primarily for irrigation purposes. The County again issued a DS, requiring the preparation of an EIS under SEPA. See RCW 43.21C.031.

The Fosters appealed the threshold decision to the King County Zoning and Subdivision Examiner, who conducted an eleven-day hearing. In a twenty-eight page opinion, the hearing officer found that the record supports analysis of the pond as both a ski pond and as an agricultural irrigation facility. He concluded that the pond's probable environmental impacts as a combined water-ski and irrigation facility are significant and upheld the DS. Because the pond's impacts would be more manageable without the ski use, the hearing officer concluded that a Mitigated Determination of Non-significance (MDNS) would be appropriate if the Fosters revise their proposal to restrict the pond to agricultural uses. An MDNS does not require an EIS. WAC 197-11-350.

The Fosters petitioned the superior court for a statutory writ of review under RCW 7.16 or, in the alternative, a constitutional writ of review. Additionally, the Fosters requested statutory damages under RCW 64.40. The trial court granted the County's motion for summary judgment and denied the Fosters' motion for reconsideration.


Availability of Judicial Review

Washington recognizes three methods of judicial review of administrative decisions: (1) direct appeal pursuant to a statute or ordinance, (2) statutory writ of review under RCW 7.16.040 (also known as statutory certiorari), and (3) discretionary review pursuant to the court's inherent constitutional power (also known as constitutional or common law certiorari). Kreager v. Wash. State Univ., 76 Wash. App. 661, 664, 886 P.2d 1136 (1994);

Direct Appeal Under SEPA

In 1983, the Legislature amended SEPA to expressly provide for judicial review of SEPA compliance. Laws of 1983, ch. 117, § 4. Before that time, SEPA claimants commonly sought review by statutory writ. See, e.g., Short v. Clallam County, 22 Wash. App. 825, 593 P.2d 821 (1979). Although SEPA now expressly allows judicial review, it provides for only limited review of threshold procedural determinations, such as the DS at issue here. A claimant may administratively appeal a procedural determination, but direct judicial review is not available until the agency takes final action on the development proposal, in this case the grading permit. RCW 43.21C.075(3)(a); 43.21C.075(6)(c); *fn1 Saldin Sec., Inc. v. Snohomish County, 80 Wash. App. 522, 529, 910 P.2d 513, review granted, 129 Wash. 2d 1022, 919 P.2d 600 (1996). Because the Fosters have exhausted all available administrative remedies SEPA requires that they wait until they can link the appeal of the DS to their appeal of the County's final action on the grading permit. See Saldin, 80 Wash. App. at 530.

Statutory Writ of Review

The Fosters contend that, if they have no right of appeal under SEPA, RCW 7.16.040 entitles them to a statutory writ of review. This is an extraordinary remedy reserved for extraordinary situations. King County v. Wash. State Bd. of Tax Appeals, 28 Wash. App. 230, 237, 622 P.2d 898 (1981). It is available only when the court finds that (1) an inferior tribunal, (2) exercising judicial functions, (3) exceeded its jurisdiction, and (4) ...

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