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Healy v. City of Federal Way

October 14, 1996

G. PATRICK HEALY, HEALKO, INC., A WASHINGTON CORPORATION, APPELLANTS, MICHAEL P. CARKONEN AND ROSALIE CARKONEN, HUSBAND AND WIFE; WENDY LEE CARKONEN; RUBY L. LEONARD, AND PETER J. CARKONEN, PLAINTIFFS,
v.
CITY OF FEDERAL WAY, A WASHINGTON MUNICIPAL CORPORATION, RESPONDENT, D.I.R.E., INC., A WASHINGTON CORPORATION; AND JAMES CRON AND JANE DOE CRON, HUSBAND AND WIFE, DEFENDANTS.



Appeal from Superior Court of King County. Docket No: 91-2-19125-5. Date filed: 08/19/92.

Authored by Ronald E. Cox. Concurring: Faye C. Kennedy, Mary K. Becker

The opinion of the court was delivered by: Cox

COX, J. -- G. Patrick Healy and Healko, Inc. (collectively "Healko"), appeal the Order and Partial Judgment. The order dismisses the petition for writs of review and a writ of mandamus and leaves undisturbed the City of Federal Way's decision to require an Environmental Impact Statement ("EIS"). The City cross-appeals the trial court's decisions granting Healko a dismissal without prejudice of other claims and denying the City's request for attorney fees. We affirm.

In June 1989, Healko submitted to the King County Building and Land Development Division ("BALD") a preliminary plat application for a new subdivision, Forest Ridge. Forest Ridge is to be located on approximately 55 acres in the City of Federal Way.

BALD reviewed the plat application for environmental impacts in accordance with the State Environmental Policy Act ("SEPA"). *fn1 In the fall of 1989, BALD issued a mitigated Determination of Non-Significance ("MDNS"). In response, D.I.R.E., a citizen's group, appealed the issuance of the MDNS and requested that BALD require an EIS. BALD scheduled a hearing on the appeal for March 1990.

In February 1990, Federal Way incorporated as a city. Under the terms of an interlocal agreement with King County, the City assumed responsibility for further processing of the plat application, including D.I.R.E.'s appeal of the MDNS. The King County codes and ordinances under which the project had vested were to govern the substantive portions of the appeal. The City's administrative appellate procedures were to govern the other aspects of the appeal. Accordingly, BALD canceled the scheduled March hearing and forwarded its report to the City to be heard by the Federal Way Land Use Hearing Examiner.

The hearing examiner conducted public hearings in early December 1990. In January 1991, he issued his decision. He concluded that (a) BALD had erred by issuing the MDNS and (b) he had no authority "to remedy the errors of by imposing additional mitigation conditions as part of a decision on the appeal." He then decided that an EIS was required to discuss all impacts on traffic, wetlands, open space, and wildlife. The EIS was also required to analyze appropriate mitigation measures to address those impacts.

Healko appealed the hearing examiner's decision to the city council. The council conducted a hearing based on the record before the hearing examiner. The council affirmed the portion of the hearing examiner's decision to require an EIS. But it modified part of the decision by determining that the hearing examiner had authority to impose additional mitigation requirements as part of an MDNS.

In the fall of 1991, Healko commenced this action for declaratory and other relief. As part of the action, Healko petitioned for statutory and constitutional writs of review and a writ of mandamus. D.I.R.E. was no longer involved in the case by that time, and the City answered the complaint. The trial court granted the City's motion for an early trial date on the request for writs. In the same order, the trial court bifurcated the remaining issues for determination at a later time. On August 20, 1992, the court dismissed with prejudice the petition for the writs.

Shortly after the court's oral decision to dismiss the petition for the writs and before the court entered its order, Healko moved for voluntary dismissal without prejudice of the remaining claims. The City sought dismissal with prejudice of those claims. The trial court granted Healko's motion for voluntary dismissal without prejudice.

Approximately three months after the court dismissed Healko's other claims for relief, the City moved for an award of attorney fees under RCW 64.40. The trial court denied the motion.

I

Judicial Review of Threshold Determinations

Healko argues that the trial court erred by dismissing the petition for writs of certiorari and mandamus. The writs of certiorari would have barred the City from requiring Healko to prepare an EIS. The writ of mandamus would have required the City to issue an MDNS. The City argues that its decision to require an EIS is not ripe for review and the dismissal of the petition for writs was therefore proper. We agree with the City.

A

Applicable Law

Prior to a final decision on a development proposal, "a party may appeal threshold procedural determinations, such as a decision to require an EIS, only within the agency and to the local legislative body." *fn2 This is so because RCW 43.21C.075(6)(c) provides that "judicial review under this chapter shall without exception be of the governmental action together with its accompanying environmental determinations." *fn3 Thus, direct judicial review of a decision to require the preparation of an EIS is not available.

The question before the Saldin court was whether the trial court erred by issuing a constitutional writ of certiorari. Saldin held that the trial court erred by issuing the writ because the project proponents failed to establish that extraordinary circumstances justified interlocutory review of the decision to require preparation of EISs. *fn4 There were three reasons why the court concluded that extraordinary circumstances did not exist.

First, there was conflicting evidence in the record whether the project would violate environmental standards. Thus, there was room for more than one opinion on that question and the agency's decision therefore was not arbitrary and capricious. *fn5 Second, there was no showing in the record that the costs of preparation of the EISs would be extraordinary. Likewise, there was no showing that the case was significantly different from any other that required preparation of an EIS. *fn6 Third, there was nothing unique about the fact that the record contained evidence that would support a declaration of nonsignificance. It also contained other evidence that triggered a different Conclusion by the legislative body. *fn7 Differences in Conclusions between the executive and legislative branches of government on this question were insufficient to make the case extraordinary. We conclude that the rationale of Saldin applies to our Disposition of the question whether a constitutional writ of certiorari should have been issued in this case.

Healko argues that this court should not apply Saldin for four reasons. First, Healko points out that Saldin was decided after this appeal was filed. Healko suggests the application of that decision to this case would be a retroactive application of the law to this case. But Healko cites no authority for that proposition. An appellate court need not consider an argument that is not supported by authority. *fn8 We will not consider the argument for that reason.

Second, Healko notes that the City did not raise the Saldin argument at trial and therefore waived it under RAP 2.5. The City concedes its failure to raise the issue below, but claims that the case is a significant change in the law governing these issues and therefore worthy of consideration.

RAP 2.5(a) provides that a "party may present a ground for affirming a trial court decision which was not presented to the trial court if the record has been sufficiently developed to fairly consider the ground." The record before us is sufficiently developed to consider the effect of Saldin on this case. Moreover, although Saldin is a recent case, it construes the plain language of RCW 43.21C.075(6)(c). The Legislature enacted that statute in 1983, well before Healko began the process that is the subject of this appeal. Therefore, Saldin does not represent a change in the law but a statement of what the law already is. On these bases, we exercise our discretion under RAP 2.5(a) to consider the effect of Saldin on this case.

Third, Healko argues that the rationale of Saldin, to avoid delay and costly litigation, is inapplicable here. Healko argues that the parties have litigated the issue for several years already and thus the court should review the threshold determination. We are not persuaded by this argument that Healko has established the type of extraordinary circumstances that would justify granting relief on a constitutional writ of review. *fn9 The fact that there have been delays and resulting expense does not make this case significantly different from other cases or extraordinary.

Finally, Healko argues that, if it had failed to appeal, it would have jeopardized any later appeal by failing to exhaust its administrative remedies. The city zoning code provides for such an appeal. *fn10 But to the extent that the code purports to apply to interlocutory SEPA appeals, it is void because of its direct conflict with RCW 43.21C.075(6)(c). *fn11 Healko therefore exhausted its SEPA administrative remedies without seeking judicial review.

B

Standard of Review

We now examine the City's decision to require an EIS. We apply the standard of review directly to the administrative decision of the City based on the factual record developed by the hearing examiner. *fn12 The standard of review is whether the challenged decision or other action was arbitrary and capricious or contrary to law. *fn13 A decision is arbitrary and capricious if it is made "without consideration and in disregard of facts and circumstances." *fn14 Even though the reviewing court may disagree with the decisionmaker's Conclusion, the decision is not arbitrary and capricious where there is room for two opinions. *fn15

Healko argues that this court should review the city council's decision under the clearly erroneous standard. Healko cites Cougar Mountain Assocs. v. King County *fn16 to support this argument. There, our Supreme Court stated that it will apply the clearly erroneous standard to substantive decisions based on SEPA. *fn17 But that case is distinguishable from this one. Here, we are concerned with a threshold determination, not a substantive decision. Thus, the case does not apply here to define the standard of review.

The City relies on Short v. Clallam County *fn18 to support its argument that we should review its action on the basis of the arbitrary and capricious standard. There, Division II held that a more deferential standard should apply to positive threshold determinations requiring preparation of an EIS. The court noted the Norway Hill court's reliance on the goal of full disclosure and consideration of environmental values embodied in SEPA. *fn19 Thus, greater judicial scrutiny should apply in review of a DNS since it will result in less study. Conversely, less scrutiny is necessary when an EIS is required. Therefore, an appeals court should reverse a decision to require an EIS a Determination of Significance or DS only if it is found to be arbitrary and capricious or contrary to law. *fn20

Healko argues that one commentator concludes that the Short decision established a standard of review that was "actually . . . less deferential than the clearly erroneous standard applicable to negative determinations." *fn21 In Short, the court affirmed a trial court's reversal of the Clallam County Board's requirement that a landowner prepare an EIS to convert a barn on his land into a small warehouse. The existing barn was categorically exempt from SEPA either as it stood or if converted to a warehouse. *fn22 The court reasoned that the board's decision was contrary to law because the structure was exempt from SEPA. A determination that a governmental action is "contrary to law" is one prong of the two-pronged standard of "arbitrary and capricious or contrary to law." It is not, as Healko argues, a more stringent standard than the clearly erroneous standard. The more deferential standard of arbitrary and capricious or ...


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