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North Kingston Community Association v. Lindsey

September 3, 1996


Coleman, J.

The opinion of the court was delivered by: Coleman

COLEMAN, J. -- North Kingston Community Association argues that the trial court erred in modifying in part and affirming in part a preliminary subdivision approval by the Kitsap County Board of Commissioners. The Association claims that the Board's findings of fact are too conclusory to allow for effective judicial review and are inadequate to support its Conclusions of law. We find that, read in their entirety, the findings of fact are sufficient to support the Conclusions. The Association also claims that (1) the County Clerk violated the Public Disclosure Act, (2) the Board violated the appearance of fairness doctrine, (3) the Board violated their due process rights, (4) the County should have withdrawn its "determination of nonsignificance," (5) the court erroneously revised the Board's decision rather than remanding after finding that the Board based its decision on improper evidence, and (6) the Board's decision fails to make appropriate provision for the public health, safety, and general welfare because the conditions imposed are contingent and speculative. We affirm in part and reverse in part and remand for further proceedings on attorney fees and costs under the PDA.


On March 19, 1990, the Kitsap County Board of Commissioners determined that an environmental impact statement was not needed to approve a preliminary plat for the Kingston Skyline subdivision and issued a Determination of Nonsignificance. Plaintiffs did not then appeal the DNS. On March 14, 1991, a public hearing was held regarding the preliminary plat approval, and on April 9, 1991, a hearing examiner recommended approval of the preliminary plat.

The Association challenged the Examiner's decision and received a hearing before the Board. Following the hearing, the Board approved the preliminary plat on September 13, 1993. The Board relied heavily upon a hydrogeological and geotechnical study conducted by Dames and Moore. The report indicated that there would be a 280 percent recharge to groundwater across the site and determined that the site was geotechnically suitable. The study found "no evidence of slope instability on the site itself" but strongly recommended certain building techniques because the "native sandy soils are extremely susceptible to losses by erosion." Those techniques specified making temporary cut slopes and inclining permanent slopes at angles. The study also recommended draining rainwater away from the slopes' crests and protecting them with suitable vegetation.

The Association submitted Reginald C. Kleweno's report, which concluded that a domestic water source lay beneath the site. The report concluded that using drainfield effluent to recharge the aquifers was not wise. The plaintiffs also submitted Neil H. Twelker's report, which concluded that increasing the water budget by 2.8 times, as contemplated by Dames and Moore, was a cause for concern and could cause a landslide.

The Board noted that the plaintiffs' submitted reports indicating that groundwater may be contaminated and slope stability may be adversely affected by the project. The Board concluded that these concerns could be mitigated by installing dry sewer lines for future connection to the Kingston Sewer system, requiring mandatory participation in a future sewer LID, and using sand filter pretreatment systems in the interim. The Board further conditioned approval on a number of other requirements consistent with the Dames and Moore report recommendations.

The Association appealed the Board's decision to Superior Court, arguing that the Board erred in failing to find that the proposed plat made appropriate provisions for the public health, safety, and general welfare and that any findings the Board made were not supported by substantial evidence. The Association further requested attorney fees and costs.

On June 15, 1994, the Superior Court remanded to the Board with instructions to address a few specific issues. The court noted that the Board failed to make a specific finding on "public health, safety, and general welfare." The court also concluded that the Board erroneously required the developer to use "sand filter pretreatment systems" because no evidence supported the finding that sand filters were "state of the art" or that such filters would provide any interim benefit.

The Board conducted a public hearing on remand on July 25, 1994. Each side had ten minutes to present their arguments. Tim Botkin, attorney for defendant, and consultant John Noble testified in favor of the plat development. Attorney David Bricklin, consultant Neil Twelker, and plaintiff representative David De Bruyn testified in favor of the Association. The Board accepted documents from both parties until August 17, 1994. Documents submitted included two letters from De Bruyn, a Health Department letter, a letter from Robert Merriam, a letter from Tim Botkin, a MAP Ltd. letter, a memo by Dames and Moore, and a letter from David Bricklin. The letter by Dave Bjerklic of Dames and Moore stated, "Although slope drainage problems are not anticipated as a result of the project, it may be prudent for the project to monitor downgradient slope drainage conditions for a period of years just prior to and after the project is constructed."

De Bruyn sought access to the file on August 15, 1994. Clerk Holly Anderson told De Bruyn that she did not have to provide him with any confidential documents and therefore did not disclose a letter from the Health District to the Commissioners dated August 9, 1994, and another two-page letter. De Bruyn informed Anderson that the developer may submit information in the two and a half days before closing of the evidentiary period. He claims that Anderson offered to fax him additional documents. Anderson did fax De Bruyn three additional documents that the developer submitted on August 17, 1994, but Anderson did so on August 18, 1994--after the close of the evidentiary period.

After considering the submitted evidence, the Board concluded: "After consultation with the Environmental Review staff at the Department of Community Development and a review of the record and applicable regulations . . . the public interest will not be served by the revocation of the previously approved Determination of Non-Significance[.]" The Board incorporated its findings of fact from the previous hearings into the record and adopted additional facts. The Board noted that "various studies submitted for the record and the testimony and reports submitted since the record was re-opened for the remand are conflicting and inconclusive." The Board concluded that based on letters submitted by plaintiffs, there was a substandard sewer line that must be upgraded and that such upgrading will likely serve the plat when the system was capable of expansion in two and a half to three years. The Board also concluded that plaintiffs' concerns could be addressed by installing dry sewer lines for future connection to a system, mandating participation in future sewer LID, use of sand filter pretreatment systems for interim on site sewage disposal, and development of a storm drainage system for the final plat that directs a significant proportion of the surface drainage off the site. The Board also required a qualified engineer to monitor down-slope conditions annually for five years following final plat approval as suggested by Tim Botkin and the Dames and Moore memorandum, both dated August 17, 1994.

The Association appealed to Superior Court. In their complaint, the Association alleged violations of the Public Disclosure Act, due process, the appearance of fairness act, the State Environmental Policy Act, and requested, inter alia, statutory attorney fees and costs under the Public Disclosure Act.

The Superior Court affirmed the Board with one exception. The court noted that Kitsap County's failure to provide plaintiff representative David De Bruyn with unfettered access to the files "ran the risk of fouling the fairness of the Board's quasi judicial actions." The court determined that one of these exhibits, a letter dated July 27, 1994, from the Health District first suggesting the use of "bottomless" sand filter pretreatment systems, was not made available to the Association until August 18, 1994. The court thus struck the Board's ...

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