FREMONT NEIGHBORHOOD COUNCIL V. CITY of SEATTLE

FREMONT NEIGHBORHOOD COUNCIL v. CITY OF SEATTLE

FREMONT NEIGHBORHOOD COUNCIL, NORM and BEVERLY DAVIS, ERIKA and JOHN BIGELOW, MARY SUSSEX, DIVISION ONE Appellants, and

ALLISON HOGUE and RICHARD FLOISAND, Plaintiffs,

v.

CITY OF SEATTLE, a municipal corporation, through its OFFICE OF HEARING EXAMINER, a quasi-judicial body, its DEPARTMENT OF PUBLIC UTILITIES, and the SEATTLE CITY COUNCIL, FILED: March 7, 2011 Respondents.

No. 64098-4-I.

Court of Appeals of Washington, Division One.

Filed: March 7, 2011.

Counsel for Appellant(s), Toby Thaler, Attorney at Law, Po Box 1188, Seattle, WA, 98111-1188.

Counsel for Plaintiff(s), Toby Thaler, Attorney at Law, Po Box 1188, Seattle, WA, 98111-1188.

Counsel for Respondent(s), Robert David Tobin, Seattle City Attorneys Office, Po Box 94769, Seattle, WA, 98124-4769.

UNPUBLISHED OPINION

Grosse, J.

A determination of nonsignificance under the State Environmental Policy Act for a project linked to a city ordinance appropriating money for that project is ripe for judicial review. Here, the city of Seattle (the City) authorized Seattle Public Utilities (SPU) to replace the existing recycling and disposal station with new facilities on the current site in the Wallingford area. After an environmental review of the proposal, SPU determined that there was no need for an environmental impact statement. Because substantial evidence supports the hearing examiner's determination that there was no significant impact from the reconstruction of the north transfer facility, we affirm.

FACTS

The North Recycling and Disposal Station (facility) has been located in the Wallingford/Fremont area since 1967. In August 1998, the City developed a Solid Waste Management Plan (SWMP) that discussed the potential for developing a recycling center at the facility and the possibility of the City acquiring nearby property to do so. "A Plan for Seattle's Recycling and Disposal Stations (RDS Plan)" was also issued in August 1998. The RDS Plan contained more detailed information on the City's two facilities (north and south stations) as well as a statement that acquisition of additional property would be needed in order to expand recycling opportunities, realign on-site traffic, reduce off-site queues, and add more trailer parking. A Final Programmatic Environmental Impact Statement (FEIS) for the 1998 SWMP was completed and again indicated that the City would investigate purchasing property adjacent to the facility for a self-haul recycling center. The 1998 FEIS was the first programmatic phase of environmental review of the sites. No appeal was taken.

In 2003, in response to a City Council resolution, SPU prepared a draft Solid Waste Facilities Master Plan (SWFMP). That document included the proposed construction of a new intermodal facility as well as improvements for both the north and south transfer facilities. SPU decided to defer environmental review of the improvements to current facilities until such time as it was ready to proceed. That document also contained an appendix that concluded the public would be better served by upgrading existing facilities that would minimize the impact on neighbors. A Determination of Significance (DS) for an Environmental Impact Statement (EIS) on the SWFMP was issued in August 2004. In 2005, a Final Supplemental Environmental Impact Statement (FSEIS) was issued only on the intermodal transfer facility. That 2005 FSEIS specifically noted that the location and general nature of improvements at the facility had already been addressed in the 1998 comprehensive plan process. The City decided not to pursue the intermodal facility. The adequacy of this second EIS was not appealed.

The Mayor and City Council reached an agreement on a configuration that would rebuild both north and south transfer facilities in its 2008-2013 Adopted Capital Improvement Program. Ordinance 122447 amended that plan, directing the City to "strive for the North Transfer Station to be rebuilt with new buildings that are the same height as the existing building and have a footprint that is contained between Ashworth Avenue North and Interlake Avenue North."

The April 2008 Determination of Nonsignificance (DNS) sets forth the parameters of the proposal. The City intends to replace the existing facility with new and additional facilities on the existing parcel as well as the adjacent parcel to the east. The proposal calls for the demolition of the existing structure and construction of a new transfer station building, scales, access roads, operations yard, landscaping, and associated facilities on the property. The proposal was reviewed for potential impacts on air quality, noise, water quality, transportation, public views and neighborhood aesthetics.

After the City issued the DNS, the Fremont Neighborhood Council (Fremont) appealed to the hearing examiner who upheld the City's decision. Fremont appealed that decision to the trial court on multiple grounds. The City moved for summary judgment on the claims against the City Council's decisions. Fremont then moved to voluntarily withdraw its complaint or to stay the judicial proceedings pending the final permitting process of the City arguing that the matter was not ripe for review until all permits were issued. The court dismissed the claims against the City Council decisions and ruled that Fremont's challenge to the City's planning decisions to reconstruct the facility at its present site was untimely. After trial, the court upheld the hearing examiner's decision.

Fremont appeals the denial of its motion to stay the proceedings and the City's determination of nonsignificance.

ANALYSIS

Ripe for Judicial Review

Although Fremont's initial complaint asserted the court's jurisdiction under RCW 43.21C.075, it now contends that the matter is not ripe for review because the City has not applied for or issued any permits on the transfer facility. Fremont initially sought to overturn two governmental actions: (1) the City Council's budget ordinances, which appropriated money for the facility, and (2) a council planning decision to move ahead with the new facility.

Any appeal under the State Environmental Policy Act (SEPA), chapter 43.21C RCW, requires that the environmental considerations be linked to a specific governmental action.1 Review of SEPA compliance is timely when a government has acted on a proposal.2 The Washington Administrative Code (WAC) 197-11-704 defines "action" as those that are approved by an agency. Actions fall within two categories, project and nonproject. WAC 197-11-704(2) provides in pertinent part:

(a) Project actions. A project action involves a decision on a specific project, such as a construction or management activity located in a defined geographic area. Projects include and are limited to agency decisions to:

(i) License, fund, or undertake any activity that will directly modify the environment, whether the activity will be conducted by the agency, an applicant, or under contract.

Thus, where a project action has occurred, the underlying environmental determination, whether a DNS or an EIS, may be reviewed for SEPA compliance.

Here, the agency approved the reconstruction of the transfer station. In its summary of the proposed project, the City states that the project "would replace the existing [facility] with new and additional facilities on the existing parcel and an adjacent parcel to the east." The summary further states that the threshold determination of nonsignificance applies to all actions required to accomplish the project such as the issuance of permits. The City Council's decision and ordinance directing the City to pursue the demolition and reconstruction of the facility is a decision on a specific project. It thereby undertook an "activity that . . . directly modif[ied] the environment."3 Project actions include government approval of site-specific projects that involve construction, such as county solid waste landfill site selection.4 Thus, the City's proposal to reconstruct the transfer station is an action.

Our conclusion is supported by Chuckanut Conservancy v. Washington State Department of Natural Resources (Department),5 wherein this court upheld a DNS issued pursuant to a recommendation of the Blanchard Forest Strategies Group (Strategies). The Strategies divided the Blanchard Forest into four management zones: (1) conservation and recreation, (2) habitat conservation, (3) logging, and (4) a general zone for revenue production. The plan called for eliminating timber harvest in approximately one-third of the forest. As required by SEPA, the Department reviewed the plan for potential environmental impacts. Unlike here, that plan would only go into effect if the legislature appropriated the remainder of money needed to implement the strategies. Nonetheless, the court addressed the issuance of the DNS, even as it recognized that the decision of whether to commit state funds for this purpose was a political judgment.6 In reviewing the DNS for a plan that was not yet legislatively funded, and thus not guaranteed to occur, the Chuckanut court still found the DNS ripe for review. A fortiori, a review of a project action which has been funded by the City is ripe for review. Likewise, in Magnolia Neighborhood Planning Council v. City of Seattle,7 this court held that the City's approval of a plan for a specific construction project in a defined geographic area was a "project action" subject to review under SEPA.

Freemont relies primarily on three cases as support for its argument that the City has taken no action and, thus, the DNS is not ripe for review—State v. Grays Harbor County,8Saldin Securities, Inc. v. Snohomish County,9 and Grandmaster Sheng-Yen Lu v King County.10 But those cases are not germane to the analysis here. In Grays Harbor, the issue was whether the neighbors had timely appealed the granting of a permit and issuance of a DNS. The county ordinance provided that parties contesting a permit must appeal within 10 days, while SEPA required parties to pursue their administrative remedies before seeking judicial review. The court held that the time for judicial review did not begin to run until after the county had made its final administrative decision. Here, the hearing examiner's decision was the final administrative decision. The time for appeal of the determination of nonsignificance began to run when the hearing examiner issued its administrative decision.

Saldin involved a DS requiring the petitioners to prepare a limited environmental impact statement for their proposed project developments.11 There, the court held that a constitutional writ of certiorari was available to provide interlocutory review of the DS if the petitioner could allege facts that, if proved, would indicate that the agency's determination of significance was illegal or arbitrary and capricious. Fremont relies on language in Saldin:

On the other hand, it is clear that a determination of nonsignificance (thus not requiring an EIS) would have an adequate appeal from the final agency decision on the proposal. Opponents of a decision by an agency not to require an EIS could appeal the decision, when the ultimate decision on the permit is made, and obtain an order requiring an EIS before the development proceeds.12

Here, that is precisely what occurred. Fremont sought to require an EIS before the project proceeded. To await review until the last permit is issued would deprive persons contesting the DNS from any meaningful judicial review as the project could be substantially completed.

Sheng-Yen challenged the county's failure to issue a conditional use permit when no permits had yet been issued. There, the court held that the petitioner was not entitled to relief via a declaratory judgment because there was a completely adequate alternative remedy, i.e., an action under the Land Use Petition Act (LUPA), chapter 36.70C RCW.13 Here, Fremont's challenge was properly brought pursuant to LUPA.

One of the purposes of SEPA is to provide consideration of environmental impacts at the earliest possible stage to foster decisions being made on complete disclosure of environmental consequences.14 The EIS preparation process must begin early enough so that the statement can actually contribute to the decision-making process, rather than be used to rationalize decisions already made.15 As noted by the Washington Supreme Court:

Decisonmaking based on complete disclosure would be thwarted if full environmental review could be evaded simply because no land use changes would occur as a direct result of a proposed government action. Even a boundary change, like the one in this case, may begin a process of government action which can "snowball" and acquire virtually unstoppable administrative inertia.16

Here, the City's action directing SPU to proceed with the reconstruction of the north transfer facility began the process of government action subject to environmental review. Once the agency issued the DNS, it permitted the City to proceed with the various permitting requirements of the project without further environmental review. The matter is clearly ripe for review.

Determination of Nonsignificance (DNS)

SEPA requires agencies, including local governments, to prepare an EIS for all major actions having a probable significant, adverse environmental impact.17 The preparation of an EIS is required only for "proposals for legislation and other major actions having a probable significant, adverse environmental impact."18 Threshold decisions that an EIS is not required are reviewed under the "clearly erroneous" standard.19 An agency's decision to issue a DNS under SEPA is accorded substantial weight.20 The court reviews administrative decisions directly, based on the record before the administrative agency.21

SEPA is essentially a procedural statute meant "to ensure that environmental impacts and alternatives are properly considered by the decision makers."22 In Seattle, SEPA is implemented under chapter 25.05 of the Seattle Municipal Code (SMC).23 Pursuant to chapter 25 SMC, the hearing examiner's decision is the City's final decision.

Here, the evidence presented at the hearing supported the examiner's findings of fact. The existing site is zoned industrial as are the surrounding areas to the west, south, and southeast. Solid waste transfer is an administrative conditional use, and recycling is a permitted use. A Transportation Technical Report was prepared. The report indicated that daily trips to the site would increase from approximately 14 to 40 trips in 2030 with the majority of those trips being employee trips.24 This same traffic increase would be expected if there were no action taken. Because the new facility would add flow improvements with the additional stalls, traffic would be in the facility, rather than idling out on the street. An analysis of nearby intersections found no adverse impacts.

The 2008 Air Quality Technical Report, which included an analysis of the log of odor complaints for the previous 10 years, meteorological conditions and vehicle emissions, found no present or future impact.

Arthur Campbell, a consultant with Herrera Environmental Consultants, prepared a Visual Technical Report identifying existing visual conditions and changes in visual character and quality that would occur as a result of the construction of the new facility. Using the federal highway administration methodology, Campbell's report characterized existing conditions, identified views, their locations, and the surrounding landscape. Campbell also conducted on site inspections examining the viewpoints from multiple areas. He agreed with the City's conclusion in the SEPA checklist that there was no adverse environmental impact on the visual environment.

The Noise Technical Report indicated that noise came primarily from traffic and machinery processing materials. The new building is to be designed to reduce existing maximum noise levels outside its walls by 10 decibels, thus noise would be reduced by half. Thus, substantial evidence supports the hearing examiner's conclusion that there was no significant impact.

Fremont's argument that the City used an incorrect baseline in evaluating the impact is without merit. SEPA requires the examination of two relevant factors:

"(1) the extent to which the action will cause adverse environmental effects in excess of those created by existing uses in the area, and

(2) the absolute quantitative adverse environmental effects of the action itself, including the cumulative harm that results from its contribution to existing adverse conditions or uses in the affected area."25

A proposal that "`change[s] neither the actual current uses to which the land was put nor the impact of continued use on the surrounding environment'" is not a major action significantly affecting the environment.26 As noted in Chuckanut Conservancy, "[t]he agency's task is to analyze the proposal's impacts against existing uses, not theoretical uses."27 This is precisely what the City did here.

Fremont cites Grand Canyon Trust v. Federal Aviation Administration (FAA)28 as support for its position that it is not the existing conditions of the land that should be the baseline. There, the issue was whether the National Environmental Policy Act required the FAA to address more than the incremental impact of a replacement airport as compared to the existing airport. The capacity of the existing airport could no longer accommodate the air traffic and, because of geographic restraints, the site could not be expanded. It was necessary therefore to find an additional site. That additional site was closer to Zion National Park and, therefore, a DNS was inappropriate as significant impacts needed to be analyzed. The present case presents a different scenario because it is the same site that is being used to accommodate the new facility.