Argued September 17, 2013.
Appeal from Kittitas County Superior Court. 11-2-00215-5. Honorable Scott R. Sparks.
Gregory L. Zempel, Prosecuting Attorney, and Neil A. Caulkins, Deputy ; and James C. Carmody (of Velikanje Halverson PC ), for petitioners.
Michael J. Murphy (of Groff Murphy PLLC ); and William J. Crittenden, for respondent.
AUTHOR: Justice Sheryl Gordon McCloud. WE CONCUR: Chief Justice Barbara A. Madsen, Justice Charles W. Johnson, Justice Susan Owens, Justice Mary E. Fairhurst, Justice James M. Johnson, Justice Debra L. Stephens, Justice Charles K. Wiggins, Justice Steven C. Gonzá lez.
Gordon McCloud J.
[179 Wn.2d 739] ¶ 1 Homer L. Gibson applied to Kittitas County for a conditional use permit (CUP) that [179 Wn.2d 740] would allow him to conduct rock crushing and other gravel and cement production related activities on his agricultural-zoned property. Kittitas issued a determination of nonsignificance (DNS) under the State Environmental Policy Act (SEPA), chapter 43.21C RCW, and gave notice that it would hold a public hearing on the CUP. Ellensburg Cement Products, Inc. objected to the CUP application and appealed Kittitas's SEPA DNS under the county's administrative appeal procedures. In the hearing that followed, Kittitas first considered the SEPA appeal in a " closed record" hearing, Clerk's Papers (CP) at 30, and upheld the DNS. It then held an " open record" public hearing on the CUP, CP at 103, and granted Gibson's application over Ellensburg Cement's objections. Ellensburg Cement appealed both decisions to the superior court, which affirmed, and then to the Court of Appeals, which reversed. Ellensburg Cement Prods., Inc. v. Kittitas County, 171 Wn.App. 691, 287 P.3d 718 (2012). The Court of Appeals held that Kittitas was statutorily required to hold an " open record hearing" on the appeal of the SEPA DNS and that rock crushing was not a permissible conditional use under Kittitas's relevant zoning regulations. Id. at 713. We granted Gibson's and Kittitas's petitions for review, 176 Wn.2d 1027, 301 P.3d 1047 (2013), and now affirm the Court of Appeals.
¶ 2 Gibson owned about 84 acres of property in five contiguous parcels, zoned " agricultural-20" (A-20). In 1997, the previous owner of that property had applied for and received a CUP for gravel extraction on one 13.4-acre parcel of the property. The parties do not dispute that gravel extraction was and is a permitted conditional use in A-20 zones.
¶ 3 In October 2008, Gibson applied for a gravel extraction permit from the Department of Natural Resources [179 Wn.2d 741] (DNR) for an area of 60 acres. Kittitas confirmed to DNR that the gravel extraction on 60 acres had been approved by the county. In fact, the only CUP issued by Kittitas allowed gravel extraction on one 13.4 acre parcel. Nevertheless, DNR approved Gibson's permit for an area of 60 acres in December 2008. In April 2009, Kittitas issued a notice of violation to Gibson. The notice warned that gravel extraction was occurring on Gibson's property for which no CUP had been issued. The record does not show any further action
by the county following the notice of violation.
¶ 4 In June 2010, Gibson submitted a CUP application that purported to amend the 1997 CUP to permit rock crushing in addition to gravel extraction. His application suggested that the 1997 CUP applied to all five of his parcels, totaling 84 acres. Included in the application was a copy of what appeared to be the SEPA checklist submitted with Gibson's application to DNR in 2008. The checklist submitted with his 2010 application to Kittitas, however, was altered--the original checklist referred to mining an area of 60 acres, whereas the list submitted to Kittitas referred to 84 acres.
¶ 5 Ellensburg Cement objected to Gibson's application in August 2010. It noted several of the discrepancies discussed above and also asserted that the county could not rely only on the 2008 SEPA checklist but, rather, should conduct its own independent SEPA review. Kittitas disagreed, determined that Gibson's application was complete, and published a notice of the application and notice of its intent to issue a SEPA DNS. Written comments were invited, received, and placed in the record for consideration. In October 2010, Kittitas issued a SEPA DNS. At the same time, the county gave notice that it would hold a public hearing on the CUP application. Ellensburg Cement appealed the SEPA DNS.
¶ 6 Kittitas held the hearing on the SEPA appeal on May 11, 2011, and upheld the DNS. The hearing's procedures were dictated by Kittitas's " new procedure for administrative [179 Wn.2d 742] appeals." CP at 108. Under that new procedure, " [n]o new evidence or testimony shall be given or received" and the " hearing body shall deliberate on the matter in public in the manner of a closed record hearing." Kittitas County Code (KCC) 15A.07.020(1), (2).
¶ 7 Directly following this closed record hearing on the SEPA appeal, Kittitas held an " open record hearing" on Gibson's CUP application. CP at 103. Ellensburg Cement objected to Gibson's CUP application and was permitted to present arguments and testimony, as were all interested parties. Ellensburg Cement argued, among other things, that rock crushing was not a permitted conditional use on A-20 land. The hearing board disagreed and approved the application. CP at 103.
¶ 8 Ellensburg Cement appealed both decisions--the one from the " closed record" SEPA appeal and the one from the " open record" CUP application hearing--through the Land Use Petition Act (LUPA), chapter 36.70C RCW, to Kittitas County Superior Court. The superior court affirmed. CP at 534. Ellensburg Cement then appealed to the Court of Appeals. The Court of Appeals held that Kittitas erred by holding a " closed record" hearing, rather than an " open record" hearing, on the SEPA appeal. Ellensburg Cement, 171 Wn.App. at 712-13. It also held that rock crushing was not a permitted conditional use on A-20 land. Id. at 706. Kittitas and Gibson sought review in this court, we accepted review, and we now affirm the Court of Appeals.
I. Standard of Review
¶ 9 Judicial review of land use decisions is governed by LUPA. RCW 36.70C.030. An appellate court is in the same position as the superior court when reviewing a LUPA petition. Griffin v. Thurston County Bd. of Health, 165 Wn.2d 50, 54, 196 P.3d 141 (2008) (citing Isla Verde Int'l Holdings, Inc. v. City of Camas, 146 Wn.2d 740, 751, 49 P.3d 867 (2002)). The party seeking relief must establish:
[179 Wn.2d 743] (a) The body or officer that made the land use decision engaged in unlawful procedure [sic] or failed to follow a prescribed ...