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City of Puyallup v. Pierce County

Court of Appeals of Washington, Division 2

April 3, 2019

CITY OF PUYALLUP, a Washington municipal corporation, Appellant,
v.
PIERCE COUNTY, a Washington Governmental Unit; KNUTSTON FARMS, INC. and RUNNING BEAR DEVELOPMENT PARTNERS, LLC, Respondents.

          JOHANSON, J.P.T. [*]

         The City of Puyallup appeals a superior court's summary judgment dismissal of its complaint in this land use action. The superior court granted the Respondents'[1]motion to dismiss, ruling that the City did not have jurisdiction to assume State Environmental Policy Act (SEPA), ch. 43.21C RCW, lead agency status under WAC 197-11-948. The City argues that (1) it is an "agency with jurisdiction" under WAC 197-11-948 and (2) it may assume lead agency status following the issuance of a mitigated determination of nonsignificance (MDNS). The City also asserts that the superior court erred in considering a declaration that contained legal opinions and asks us not to do so.

         We hold that under the plain meaning of the applicable regulations, (1) the City is an "agency with jurisdiction" that can assume lead agency status under WAC 197-11-948 and (2) as an "agency with jurisdiction" it may assume lead agency status following the issuance of an MDNS. In reaching our decision, we do not consider legal opinions contained in a declaration. Accordingly, we reverse.

         FACTS

         I. Knutson Project

         On November 26, 2014, Knutson Farms Inc. and Running Bear Development Partners LLC (collectively Applicants) applied to Pierce County for approval to develop a warehouse, distribution, and freight movement complex in what is farmland in unincorporated Pierce County. The Knutson Farms Industrial Park (hereinafter Knutson project) is a 162-acre site that is approximately 2.6 million square feet and includes construction of seven warehouses, as well as parking lots and ancillary facilities.

         The property borders the City's limits and is adjacent to the Puyallup River. No portion of the site is in the City limits, but the site is within the City's Growth Management Urban Growth Area. Clerk's Papers (CP) at 582 (Declaration of City Development Services Director) ("the project site will by law ultimately become part of the City"). The Knutson project site is within the City's sewer area, and a portion of the site is in the City's water service area.

         The Knutson project will require approximately 5, 600 more vehicles on the roads each weekday. The SEPA environmental checklist[2] for the project states that "[n]ew on-site private roads will be constructed as part of the development as well as roadway improvements along 5th Avenue S.E., 80th Street East and the portion of 134th Avenue East which will not to [sic] be vacated." CP at 144. These are city roads. The SEPA checklist also lists that "Sewer and Water Utility Permits by City of Puyallup and Valley Water Districts" are "anticipated for this project." CP at l31.

         Pierce County issued notices describing the project and received comments from many parties with concerns that the project was too close to the Puyallup River and in a flood prone area. These parties included the Washington State Department of Fish and Wildlife, the Muckleshoot and Puyallup tribes, and the County's Public Works and Surface Water Management Departments. The City and the City of Sumner shared these concerns as well as additional concerns that the project would generate increased traffic.[3]

         On June 22, 2016, the City offered to serve as a co-lead agency under WAC 197-11-944.[4]The County's Planning Director declined the request for co-lead, but said, "[T]he review process for this project will be robust and will provide ample opportunities for other jurisdictions and the public to comment." CP at 253. The City cautioned that it would, if necessary, assume SEPA lead agency status under WAC 197-11-948.

         As required by the Pierce County Code and the County's environmental review under SEPA, the Applicants obtained and submitted professionally prepared studies analyzing the potential impacts and mitigation measures including a traffic impact analysis; a critical areas assessment report; flood surveys and studies including a flood boundary delineation survey, conceptual flood plain compensatory storage plan, compensatory flood plain volume table, and flood plain cross sections; a preliminary storm drainage report; and a geotechnical engineering report.

         II. Mitigated Determination of Nonsignificance

         On April 26, 2017, the County issued an MDNS. The MDNS stated that it was "issued under WAC 197-11-340(2)," CP at 280, and that the County "has determined that the proposal will not have a probable significant impact on the environment, and an Environmental Impact Statement (EIS) will not be required under RCW 43.2lC.030(2)(c), only if the following conditions are met." CP at 278 (alteration in original).

         The conditions relating to city roadwork state,

• If not already constructed, the applicant will design and construct 5th Avenue SE to City of Puyallup roadway standards between Shaw Road East and 33rd Street SE prior to final building inspection on the first building in the Knutson Farms Short Plat.
• The applicant will design and construct roadway improvements to 33rd Street SE (134th Avenue East) south of 5th Avenue SE to 80th Street East to City of Puyallup road standards prior to final building inspection on the first building in the Knutson Farms Short Plat.
• If not already constructed, the applicant will design and construct roadway improvements to 134th Avenue East north of 5th Avenue SE within the Puyallup City limits. The applicant will design and construct the necessary road improvements to gain access to Shaw Road East, as well as the full street improvements along 134th Avenue East north of 5th Avenue SE consisting of 32 feet of pavement width (two 12-foot lanes with 4-foot paved shoulders), curb/gutter, and 6-foot wide sidewalks prior to the final building inspection on the first building.
• The applicant will design and construct a traffic signal at the Shaw Road East/5th Avenue SE intersection prior to occupancy of the first building.

         CP at 155, 279 (emphasis added).[5]

         III. Notice of Assumption of Lead Agency Status

         On May 10, the City issued a "Notice of Assumption of Lead Agency Status" "[p]ursuant to WAC 197-11-948 and 985." CP at 186. The same day, the City issued a "Determination of Significance (DS) and a Request for Comments on Scope of EIS."

         On May 16, the county executive responded to the City's actions and said that the "County clearly has jurisdiction and will not recognize the City's extrajudicial action." CP at 193, 289. On May 22, the County issued a "Written Order" to approve the application for the project.

         IV. Lawsuit Procedural Background

         The Respondents appealed the City's assumption of lead agency status and the City's notice of its DS to the Puyallup Hearing Examiner. The City appealed the County's MDNS to the Pierce County Hearing Examiner. These appeals were stayed pending resolution of the City's lawsuit filed in superior court discussed below.

         On May 25, the City filed a complaint and petition in superior court against the Respondents to resolve the jurisdictional dispute. The parties filed cross motions for summary judgment regarding the validity of the City's SEPA lead agency assumption. Respondents supported their summary judgment motion, in part, with a declaration from Richard Settle, an attorney. The City objected to the Settle declaration and asked the superior court not to consider it.

         After hearing oral argument on the motions, the superior court denied the City's summary judgment motion and granted the Respondents' motion. The superior court determined that under WAC 197-11-948, the City was not authorized to assume lead agency status over the proposal. Thus, it ruled that the City was not authorized to issue the notice of assumption of lead agency status and the DS. The superior court said that it considered the Settle declaration in reaching its decision. The City moved for reconsideration, which the superior court denied. The City appeals.

         ANALYSIS

         I. SEPA Framework

         The legislature enacted SEPA in 1971 to '"promote the policy of fully informed decision making by government bodies when undertaking major actions significantly affecting the quality of the environment.'" Moss v. City of Bellingham, 109 Wn.App. 6, 14, 31 P.3d 703 (2001) (internal quotation marks omitted) (quoting Norway Hill Pres. & Prot. Ass 'n v. King County Council, 87 Wn.2d 267, 272, 552 P.2d 674 (1976)). SEPA lays out procedures for review of environmental impacts by a lead agency. WAC 197-11-050. For private projects that require licenses from more than one agency where one of the agencies is a county or city, "the lead agency shall be that county/city within whose jurisdiction is located the greatest portion of the proposed project area, as measured in square feet." WAC 197-11-932. The lead agency must make a "threshold determination" (RCW 43.21C.033(1)) and determine if a proposal "has any probable significant adverse environmental impacts." WAC 197-11-330(5), -310. An impact is "significant" if there is "a reasonable likelihood of more than a moderate adverse impact on environmental quality." WAC 197-11-794(1).

         The lead agency conducts a preliminary investigation in order to make a threshold determination, which includes reviewing an environmental checklist that provides information about the proposal. WAC 197-11-315, -960. If the responsible official[6] of the lead agency determines that the proposal "may have a probable significant adverse environmental impact," then the lead agency will issue a threshold "determination of significance (DS)." WAC 197-11-360(1). ADS requires the preparation of an EIS. WAC 197-11-980. An EIS provides an impartial discussion of environmental impacts and alternatives to a proposal and informs decision makers and the public. WAC 197-11-400. The EIS process allows "government agencies and interested citizens to review and comment on proposed government actions, including government approval of private projects and their environmental effects." WAC 197-11-400(4).

         If the responsible official concludes that the proposal will not have a probable significant adverse environmental impact, then the lead agency will issue a "determination of nonsignificance (DNS)." WAC 197-11-340(1). A DNS does not require an EIS. WAC 197-11-330; WAC 197-11-970.

         Under WAC 197-11-350, the lead agency may impose mitigation conditions on an applicant's proposal to reduce impacts. A DNS with mitigated conditions is called an MDNS. WAC 197-11-350, -766. A formal EIS is not required with an MDNS. Anderson v. Pierce County, 86 Wn.App. 290, 301, 936 P.2d 432 (1997) ("With [an] MDNS, promulgation of a formal EIS is not required, although . . . environmental studies and analysis may be quite comprehensive."); see WAC 197-11-350.

         After a lead agency has issued a DNS, an "agency with jurisdiction" over the proposal or part of the proposal may assume lead agency status under WAC 197-11-948 and make its own threshold determination. See also WAC 197-11-600(3)(a) (an agency "dissatisfied with the DNS . . . may assume lead agency status" under WAC 197-11-948). An "agency with jurisdiction" is "an agency with authority to approve, veto, or finance all or part of a nonexempt proposal (or part of a proposal)." WAC 197-11-714(3). There can be more than one "agency with jurisdiction" over a proposal. See WAC 197-11-340(2)(a)(i), -942, -948.

         II. Standard of Review

         We review a superior court's grant or denial of summary judgment de novo. Columbia Riverkeeper v. Port of Vancouver USA, 188 Wn.2d 80, 90, 392 P.3d 1025 (2017). When reviewing an order granting summary judgment, we view the facts in the light most favorable to the nonmoving party. Columbia Riverkeeper, 188 Wn.2d at 90. '"Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.'" Columbia Riverkeeper, 188 Wn.2d at 90 (quoting Save Our Scenic Area v. Skamania County, 183 Wn.2d 455, 463, 352 P.3d 177 (2015)).

         We also review questions of law including statutory and regulatory interpretation de novo. Columbia Riverkeeper, 188 Wn.2d at 90. When interpreting administrative regulations, we use rules of statutory construction. Columbia Riverkeeper, 188 Wn.2d at 90. Our objective is to determine and give effect to legislative intent. Columbia Riverkeeper, 188 Wn.2d at 91. If the statute is plain on its face, we give effect to the plain meaning "as a pronouncement of legislative intent." Columbia Riverkeeper, 188 Wn.2d at 91. In order to determine a statute's plain meaning, we may look to the '"context of the entire act as well as any related statutes which disclose legislative intent about the provision in question.'" Columbia Riverkeeper, 188 Wn.2d at 91 (internal quotation marks omitted) (quoting Jametsky v. Olsen, 179 Wn.2d 756, 762, 317 P.3d 1003 (2014)). A statute that is subject to more than one interpretation is ambiguous and we may look to statutory construction, legislative history, and case law to determine the legislative intent. Columbia Riverkeeper, 188 Wn.2d at 91.

         III. Settle Declaration

         As a threshold issue, the City argues that the superior court erred by considering Settle's declaration because it is a legal opinion. The City asks that we disregard the entire declaration on review. Respondents argue that Settle's declaration is not a legal conclusion but that it instead provides the court with the historical implementation of the SEPA rules. Respondents also argue that the superior court's consideration of the declaration is not grounds for reversal because the superior court never reached the issue of whether an MDNS is the same as a DNS under WAC 197-11-948. To the extent that the Settle declaration contains legal opinion, we do not consider it.

         A. Principles of Law

         When ruling on a summary judgment motion, a superior court may not consider inadmissible evidence. Ebel v. Fairwood Park II Homeowners' Ass'n, 136 Wn.App. 787, 790, 150 P.3d 1163 (2007). Declarations "shall be made on personal knowledge" and "shall set forth such facts as would be admissible in evidence." CR 56(e). "Experts may not offer opinions of law in the guise of expert testimony." Stenger v. State, 104 Wn.App. 393, 407, 16 P.3d 655 (2001). "Courts will not consider legal conclusions in a motion for summary judgment." Ebel, 136 Wn.App. at 791.

         B. Settle's Legal Opinion

         Settle is a practicing attorney and professor who has dedicated much of his career working with SEPA, and he has authored two treatises on the subject. In paragraphs 22 to 25 of his declaration, Settle gives a legal opinion on one of the ultimate legal issues-whether the assumption of lead agency status can occur after the issuance of an MDNS. To the extent Settle's declaration contains legal opinions, we disregard it.

         IV. Agency with Jurisdiction

         The City argues that it is an "agency with jurisdiction" over the Knutson proposal under WAC 197-11-948 based on the plain meaning of the regulations because "it has authority to approve, veto, or finance parts of the proposal."[7] Br. of Appellant at 17. Specifically, the City argues that (1) it has approval authority over the proposal's roadwork and (2) it has approval authority over the proposal's water and sewer services.

         The Respondents argue that the City is not an "agency with jurisdiction" over the Knutson proposal under WAC 197-11-948. They contend that the roadwork is not part of the proposal and that permitting authority from imposed environmental mitigation does not make the City an "agency with jurisdiction." They also argue that "[t]he status of 'agency with jurisdiction' is not conferred upon services providers" providing water and sewer and that these ...


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