CITY OF PUYALLUP, a Washington municipal corporation, Appellant,
PIERCE COUNTY, a Washington Governmental Unit; KNUTSTON FARMS, INC. and RUNNING BEAR DEVELOPMENT PARTNERS, LLC, Respondents.
JOHANSON, J.P.T. [*]
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'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.
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.
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.
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
Knutson project will require approximately 5, 600 more
vehicles on the roads each weekday. The SEPA environmental
checklist 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.
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.
22, 2016, the City offered to serve as a co-lead agency under
WAC 197-11-944.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
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.
Mitigated Determination of Nonsignificance
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).
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.
155, 279 (emphasis added).
Notice of Assumption of Lead Agency Status
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."
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.
Lawsuit Procedural Background
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.
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.
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.
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).
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 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).
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.
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.
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.
Standard of Review
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)).
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.
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.
Principles of Law
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.
Settle's Legal Opinion
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
Agency with Jurisdiction
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." 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
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 ...