Appeal from Superior Court of Pierce County. Docket No: 94-2-05136-4. Date filed: 06/02/95. Judge signing: Hon. Karen L. Strombom.
Authored by J. Robin Hunt. Concurring: J. Dean Morgan, David H. Armstrong.
The opinion of the court was delivered by: Hunt
HUNT. J. -- The City of Buckley and the Buckley Plateau Coalition appeal Pierce County's issuance of a Mitigated Determination of Non-Significance (MDNS ) and a Conditional Use Permit to RPW Industries, Inc. Buckley contends that (1 ) the Hearing Examiner's decision to uphold the MDNS was "clearly erroneous," and (2 ) the Hearing Examiner erred in finding no violation of an Urban Area Agreement between Pierce County and the City of Buckley. RPW Industries and Pierce County contend that (1 ) Buckley does not have standing to challenge the MDNS, and (2 ) they are entitled to reasonable attorney fees and costs under the Regulatory Reform Act, RCW 4.84.370. We affirm the decisions of the Hearing Examiner and deny the requests for attorney fees under RCW 4.84.370.
In 1988, Pierce County and the City of Buckley entered into an Urban Area Agreement (UAA ), County Ordinance No. 88-187, in order to plan for anticipated growth. The purpose of the UAA was to "plan for and regulate uses of land and the environmental impacts arising therefrom within their jurisdictions, and [to] consider the impacts of governmental actions upon adjacent jurisdictions . . . ." *fn1 Under the UAA, Buckley reserved the right to review land use regulations, proposals, hearings, and decisions before finalization by Pierce County. Pierce County agreed to provide Buckley with copies of permit requests and accompanying documents submitted in accordance with the State Environmental Policy Act (SEPA ). RCW 43.21C, et. seq. The UAA also required Buckley to notify Pierce County in writing within 15 days if any proposed action was inconsistent with Buckley's plans or development strategies. The County agreed to "consider the City's response prior to taking any action on the application" but retained final authority for all decisions.
In November 1990, RPW Industries, Inc. (RPW ), submitted a permit application to construct a soil bio-remediation facility (RPW Project) on eight acres of a 33-acre parcel at the corner of SR-410 and 254th Avenue East in unincorporated Pierce County, between Buckley and Bonney Lake. The RPW Project would use naturally-occurring bacteria to break down petroleum hydrocarbons in contaminated soils (PCS). The RPW Project would not be used to treat any soils containing hazardous wastes.
The Pierce County Department of Planning and Land Services (PALS) classified the RPW Project as a "Waste Recycling Facility," which required a Conditional Use Permit (CUP). Along with the CUP application, RPW submitted an Environmental Checklist (checklist ) as prescribed by SEPA. The CUP application and the checklist were reviewed by PALS, several state and local agencies, and the City of Bonney Lake. PALS was initially unaware of the UAA because it did not have a copy of the UAA or a map of the Buckley Urban Area. Consequently, PALS did not send to Buckley copies of the RPW Project CUP application or the checklist at the outset of the review process.
PALS received numerous comments from state and local agencies concerning several significant adverse environmental impacts that were not addressed in the checklist. PALS then informed RPW that the RPW Project would likely cause significant adverse environmental impacts, and that PALS planned to issue a threshold Determination of Significance (DS), which would require RPW to prepare an Environmental Impact Statement (EIS).
RPW and PALS then began a series of intensive negotiations to design measures to mitigate the RPW Project's significant adverse environmental impacts so that a Mitigated Determination of Non-Significance (MDNS) could be issued and an EIS would not be required. Over the next 12 to 18 months, RPW and PALS accumulated volumes of environmental studies and evaluations, which were compiled in a planning department file.
In March 1992, Kathy Sandor, the Mayor of Buckley (Mayor), contacted PALS, expressing displeasure with the lack of notice provided to Buckley, as well as an alleged lack of in-depth review of the RPW Project. The Mayor requested that PALS issue a DS for the RPW Project and require preparation of an EIS.
On April 9, 1992, Debora Hyde, the Director of PALS (Director), apologized to the Mayor for not having previously provided Buckley with notice of the RPW Project application, stating that the failure was an unfortunate oversight. The Director provided Buckley with documents related to environmental review of the RPW Project proposal and stated that:
This department is close to issuing a . . . MDNS for this proposal. This MDNS will carry approximately 54 mitigation measures aimed at protecting wetlands, wildlife, surface and ground water quality, air, noise, odor, and traffic impacts . . .
The Director assured the Mayor that the MDNS mitigation measures would protect surrounding land uses from the impacts of the RPW Project. The Director promised to send a copy of the MDNS to Buckley as soon as it was issued, noting that a 15-day comment period would follow its issuance. Buckley submitted no comments to Pierce County before the MDNS was issued. Seven weeks later, on May 28, 1992, PALS issued a MDNS for the RPW Project. The MDNS imposed 54 mitigating conditions on the RPW Project in order to address seven primary areas of significant environmental impact. *fn2 The MDNS was later amended and reissued with minor revisions on July 17, 1992.
Buckley appealed the issuance of the MDNS to the local Pierce County Hearing Examiner. The Hearing Examiner conducted extensive public hearings, during which over 60 exhibits were admitted, nearly 50 witnesses testified, and numerous experts and professionals provided scientific analysis. The Hearing Examiner found that the proposed RPW Project, as mitigated by the 54 conditions, would cause only moderate environmental impacts, such that an EIS was not required. The Hearing Examiner gave "substantial weight" to PALS' election of the MDNS process, instead of the DS/EIS process, and concluded that the issuance of the MDNS was not "clearly erroneous." *fn3
Buckley appealed the Hearing Examiner's decision to the Pierce County Council. The Council remanded the case to the Hearing Examiner to determine whether Pierce County had complied with the UAA.
On remand, the Hearing Examiner ruled that under the UAA, Pierce County was required to provide Buckley with the RPW Project CUP application and checklist "within a short time" after having received them. The Hearing Examiner determined that Pierce County's failure to give Buckley early notice of the RPW Project application was remedied on April 8, 1992, when the County provided Buckley with the necessary environmental information and an opportunity to contribute to the MDNS process. The Hearing Examiner thus concluded that Pierce County had substantially complied with its obligations under the UAA.
Buckley again appealed the Hearing Examiner's decision to the Pierce County Council. The Council deadlocked three to three, and because there was no majority, the decision of the Hearing Examiner was affirmed.
Buckley then obtained a writ of review from Pierce County Superior Court pursuant to RCW 7.16, et. seq. After a hearing, the trial court affirmed the Hearing Examiner's decision, holding that: (1) The decision to issue an MDNS was not "clearly erroneous;" (2) the RPW Project, as mitigated under the MDNS, would not have a significant adverse environmental impact; and (3) Pierce County did not violate the UAA. *fn4
Buckley timely appealed the decision of the trial court. Pierce County now argues that the Buckley Plateau Coalition lacked standing to challenge the MDNS. Pierce County and RPW also request reasonable attorney fees and costs under the newly enacted Regulatory Reform Act, RCW 4.84.370.
I. Standing to Challenge the MDNS.
Any "person aggrieved" by a SEPA determination may obtain judicial review. RCW 43.21C.075(4). The term "person aggrieved" has been interpreted to include anyone with standing to sue under existing law. Trepanier v. City of Everett, 64 Wash. App. 380, 382, 824 P.2d 524 (1992). Washington courts apply a two-part test for determining whether a person or entity has standing to challenge a SEPA determination: (1) The interest that the party is seeking to protect must be "arguably within the zone of interests to be protected or regulated" by SEPA; and (2) the party must allege an "injury in fact," i.e., that he or she will be "specifically and perceptibly harmed" by the proposed action. *fn5 Trepanier, 64 Wash. App. at 382 (citing Save a Valuable Env't v. City of Bothell, 89 Wash. 2d 862, 576 P.2d 401 (1978 ) (quoting Association of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153, 90 S. Ct. 827, 829, 25 L. Ed. 2d 184 (1970))).
In order to show "injury in fact," the Buckley Plateau Coalition must present testimony or affidavits indicating that it will be adversely affected by Pierce County's decision to issue the MDNS and not to require an EIS. Trepanier, 64 Wash. App. at 383. If Buckley's alleged injury is merely conjectural or hypothetical, then there can be no standing. Trepanier, 64 Wash. App. at 383 (citing United States v. SCRAP, 412 U.S. 669, 688-89, 93 S. Ct. 2405, 37 L. Ed. 2d 254 (1973)).
Pierce County contends that the Buckley Plateau Coalition has not alleged a sufficient "injury in fact," but rather has presented only community displeasure and hypothetical injury to support its claim, which were insufficient to confer standing. See CORE v. City of Olympia, 33 Wash. App. 677, 683-84, 657 P.2d 790 (1983) (a bald ...