Opinion
66423-9-I
04-02-2012
DEBORAH BUCK, Appellant, v. CITY OF SHORELINE and CRISTA MINISTRIES, Respondents.
UNPUBLISHED
Cox, J.
The Land Use Petition Act (LUPA) requires that an individual exhaust administrative remedies to bring an action. Here, Deborah Buck complied with this requirement by raising the issues she now pursues through incorporation of the comments of others during the State Environmental Policy Act (SEPA) review process. We reverse and remand for further proceedings.
Deborah Buck lives next to the Crista Ministries' campus in the City of Shoreline. In early 2009, Crista submitted an application to the City for a Master Development Plan Permit (MDPP). Within the first five years of the plan, Crista proposed to install new practice fields, a new independent senior housing center, offices, a new playing field, and a larger, renovated high school. Crista proposed further development for the following fifteen years.
In March 2009, to comply with SEPA, the City mailed a notice of Crista's MDPP and the City's Optional Mitigated Determination of Nonsignificance (MDNS) to neighbors within the vicinity of the proposed development. It then mailed a "re-notice" in November, after receiving reports that not all citizens affected by Crista's proposed development received its initial letter. The November notice informed all recipients that they had to the right to submit written comments regarding Crista's application and the proposed MDNS.
Buck submitted a written comment to the City on December 2, two days before the SEPA comment period closed. In her letter, she stated:
I adopt by this reference all of the comments of others that deal with environmental effects and mitigations for our general neighborhood.
My specific addition to this dialogue is the effect on my cul de sac whose only entrance and exit is the intersection of North 195th Street and Greenwood Avenue North. This non-arterial dead end road would service a new entrance to CRISTA's property.
Clerk's Papers at 112 (emphasis added).
The City received 100 letters during the SEPA comment process. These letters raised concerns regarding increased problems with storm water drainage, degradation of water quality, and construction impacts. Others also raised issues regarding destruction of trees and interference with wildlife and their habitat on Crista property, as well as destruction of historic buildings and environmental degradation created by the proposed playing field.
On December 22, after the closure of the comment period, the City issued its SEPA threshold determination. The City determined that Crista's proposal would "not have a probable significant adverse impact on the environment and that an environment impact statement" was not required under RCW 43.21C.030(2)(c).
Id. at 165.
After the closure of the SEPA review period and the issuance of the MDNS, the City's Planning Commission held three public hearings to review its MDNS and Crista's proposal. Buck attended each of the three public hearings. It appears that her comments were limited to voicing concerns regarding the potential traffic problems that would be created by Crista's plans. After public comment, the Planning Commission entered its Findings, Conclusions and Recommendations for approval. The City Council approved the MDNS, with some revisions.
Buck then filed this LUPA action against both the City and Crista. In her complaint, Buck alleged that the City's issuance of an MDNS, rather than the more extensive preparation of an environmental impact statement (EIS), failed to address adequately numerous environmental concerns.
Crista moved for partial summary judgment, seeking dismissal of all claims other than those based on Buck's complaints during the public hearings concerning traffic impacts from the Early Childhood Center. The trial court granted Crista's motion. It decided that Buck had failed to exhaust available administrative procedures and consequently did not meet the LUPA requirement of RCW 36.70C.060. Thus, the court decided that Buck could only challenge the MDNS's approach to traffic problems near the Early Childhood Center. Three months later the court denied her LUPA petition.
Buck appeals.
EXHAUSTION OF REMEDIES AND STANDING
LUPA provides the exclusive means of obtaining judicial review of land use decisions made by local jurisdictions, subject to statutory exceptions not applicable here. Under RCW 36.70C.060, an individual has standing to bring a LUPA action if she has been or would be aggrieved or adversely affected by a land use decision. Under the statute,
RCW 36.70C.130; Twin Bridge Marine Park LLC v. Dep't of Ecology, 162 Wn.2d 825, 854, 175 P.3d 1050 (2008).
A person is aggrieved or adversely affected within the meaning of this section only when all of the following conditions are present:
(a) The land use decision has prejudiced or is likely to prejudice that person;
(b) That person's asserted interests are among those that the local jurisdiction was required to consider when it made the land use decision;
(c) A judgment in favor of that person would substantially eliminate or redress the prejudice to that person caused or likely to be caused by the land use decision; and
(d) The petitioner has exhausted his or her administrative remedies to the extent required by law.
RCW 36.70C.060 (emphasis added).
In interpreting this statute, the supreme court has held that to exhaust one's administrative remedies, an individual need not use technical, legal language. Where SEPA is at issue, this more relaxed exhaustion standard is in keeping with SEPA's purpose, which "'combine[s] environmental considerations with public decisions.'" "SEPA 'mandates governmental bodies to consider the total environmental and ecological factors to the fullest in deciding major matters.'"
Citizens for Mount Vernon v. City of Mount Vernon, 133 Wn.2d 861, 870, 947 P.2d 1208 (1997).
West Main Assocs. v. City of Bellevue, 49 Wn.App. 513, 518, 742 P.2d 1266 (1987) (quoting RCW 43.21C.075(1)).
Id. (quoting Eastlake Cmty. Council v. Roanoke Assoc., Inc., 82 Wn.2d 475, 490, 513 P.2d 36 (1973)).
We may look to opinions by federal courts addressing standing in the National Environmental Policy Act (NEPA) context for guidance. "[I]t should be noted that SEPA is patterned after [NEPA] and contains language almost identical to that of the federal act. It is well settled that when a state borrows federal legislation it also borrows the construction placed upon such legislation by the federal courts."
Juanita Bay Valley Cmty. Ass'n v. City of Kirkland, 9 Wn.App. 59, 68-69, 510 P.2d 1140 (1973).
Id. (internal citations omitted).
The Ninth Circuit has summarized the purpose of administrative exhaustion in NEPA cases as one that permits "administrative agencies to utilize their expertise, correct any mistakes, and avoid unnecessary judicial intervention in the process. . . . [A]lerting the agency in general terms will be enough if the agency has been given 'a chance to bring its expertise to bear to resolve [the] claim.'" The broad interpretation of exhaustion in the NEPA context flows from the purpose of the statute: "to ensure that agencies carefully consider information about significant environmental impacts and guarantee that relevant information is available to the public." Thus, an "'agency bears the primary responsibility to ensure that it complies with NEPA . . . and an . . . EIS' flaws might be so obvious that there is no need for a commentator to point them out specifically in order to preserve its ability to challenge a proposed action.'"
Lands Council v. McNair, 629 F.3d 1070, 1076 (9th Cir. 2010) (quoting Native Ecosystems Council v. Dombeck, 304 F.3d 886, 899 (9th Cir. 2002); citing Buckingham v. U.S. Dep't of Agric., 603 F.3d 1073, 1080 (9th Cir. 2010)).
Save the Peaks Coalition v. U.S. Forest Serv., F.3d, 2012 WL 400442, * at 8 (9th Cir. 2012) (internal quotation marks and citations omitted).
Oregon Natural Desert Ass'n v. McDaniel, 751 F.Supp.2d 1151, 1158 (D. Or. 2011) (quoting Dep't of Transp. v. Public Citizen, 541 U.S. 752, 765, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004)).
More specifically, incorporation by reference in the NEPA context has been held sufficient to exhaust administrative remedies. In State of California v. Bergland, California challenged the U.S. Forest Service's proposed land use of national forest land in its state. The Forest Service argued that California was barred from raising many of its arguments because it failed to raise them during the comment process. In response, California pointed out that its comments, although brief, incorporated the exhaustive comments made by others.Further, every objection made in its lawsuit was raised during the comment process and tabulated by the Forest Service. The court then noted that the failure to exhaust administrative remedies is a disfavored doctrine in the NEPA context. It concluded that California had properly raised the contested issues below.
483 F.Supp. 465 (E.D. Cal. 1980).
Id. at 473 n.5.
Id.
Id.
Id. (citing County of Suffolk v. Sec'y of Interior, 562 F.2d 1368, 1385 (2d Cir. 1977).
Id.
Here, as in Bergland, Buck incorporated by reference "all of the comments of others that deal with environmental effects and mitigations for our general neighborhood" in her written comments prior to the close of the comment period for SEPA. And there were 100 letters sent to the City during the SEPA comment period that raised specific environmental concerns. In these comments, Buck's neighbors raised issues about the effect of Crista's plans on (1) the historic buildings on Crista's campus; (2) trees and wildlife in the surrounding area; (3) streamwater run-off and water quality; and (4) traffic. Without question, the City was aware during the SEPA process of the concerns that Buck later raised in this case.
In King County v. Washington State Boundary Review Board, the supreme court noted that the LUPA rules requiring exhaustion further the purposes of:
122 Wn.2d 648, 860 P.2d 1024 (1993).
(1) discouraging the frequent and deliberate flouting of administrative processes; (2) protecting agency autonomy by allowing an agency the first opportunity to apply its expertise, exercise its discretion, and correct its errors; (3) aiding judicial review by promoting the development of facts during the administrative proceeding; and (4) promoting judicial economy by reducing duplication, and perhaps even obviating judicial involvement.
Id. at 669 (citing Fertilizer Institute v. U.S. Environmental Protection Agency, 935 F.2d 1303, 1312-13 (D.C. Cir. 1991)).
Here, all of these purposes were served. Buck did not flout the administrative process, but complied with it fully, submitting a letter detailing her complaints about Crista's proposal. The City's autonomy was preserved as it was alerted to Buck's concerns through all of the comments it received during the SEPA process. Further, these comments helped develop a record. Finally, as Buck points out, her incorporation by reference of the comments made by others reduced duplication and promoted judicial economy. Buck properly exhausted her administrative remedies.
There is no dispute whether Buck satisfies the other requirements of RCW 36.70C.060. The LUPA standing requirements are broad: "In general, parties owning property adjacent to a proposed project and who allege that the project will injure their property have standing." Because Buck's property is adjacent to Crista's property, and, further, because she has detailed how she would be negatively affected by its MDPP, Buck has standing to bring her LUPA petition.
Suquamish Indian Tribe v. Kitsap County, 92 Wn.App. 816, 829-30, 965 P.2d 636 (1998) (citing Anderson v. Pierce County, 86 Wn.App. 290, 300, 936 P.2d 432 (1997)).
Both Crista and the City base much of their argument regarding administrative exhaustion on Citizens for Mount Vernon v. City of Mount Vernon. That case does not support their positions.
133 Wn.2d 861, 947 P.2d 1208 (1997).
They point out that in Citizens, the supreme court reiterated its holding in Boundary Review Board that for an issue to be properly raised before an administrative agency, "there must be more than simply a hint or a slight reference to the issue in the record." In Citizens, the court rejected the developer's argument that the more restrictive statutory exhaustion requirements of the Administrative Procedure Act should be required under RCW 36.70C.060, but the court rejected this argument. Instead, it held that because Citizens "participated in all aspects of the administrative process and raised the appropriate project approval issues[, ]" it had exhausted its administrative remedies. The court specifically rejected the argument that because Citizens failed to "specifically raise the technical, legal argument of compatibility between R-2A zoning and [] commercial PUD demands[, ]" it consequently lacked standing. The court stated that "[i]ndividual citizens did not have to raise technical, legal arguments with the specificity and to the satisfaction of a trained land use attorney during a public hearing." Thus, the holding of Citizens rejected a strict interpretation of administrative exhaustion in the LUPA context. Thus, Crista and the City's selective focus on one quotation from Citizens does not support their arguments.
Id. at 869.
Id.
Id. at 869-70.
Id. at 870.
Id.
Crista argues that Buck is asking the courts to expand the doctrine of third-party standing. This is incorrect.
The doctrine of third-party standing deals, particularly, with cases brought by plaintiffs who have no injury. Buck has an injury under our LUPA jurisprudence, as we discussed previously in this opinion. Thus, this is not a case of third-party standing.
Los Angeles Police Dep't v. United Reporting Pub. Corp., 528 U.S. 32, 38, 120 S.Ct. 483, 145 L.Ed.2d 451 (1999).
Id.
The City and Crista also contend that Buck's failure to raise, by incorporation or otherwise, issues other than traffic during the City's public hearings on the project also weigh against her exhaustion argument. We disagree.
These hearings occurred afterthe City had made its threshold SEPA determination. Buck properly followed the SEPA appeals statute, RCW 43.21C.075(6)(c), which requires that any appeal of a SEPA determination "be of the governmental action together with its accompanying environmental determinations." Thus, waiting until the City had approved its final plan prior to bringing her LUPA challenge does not bar her claims in this action.
ATTORNEY FEES
Crista and the City request attorney fees on appeal. We deny their request.
Under RCW 4.84.370, reasonable attorney fees and costs shall be awarded to the prevailing or substantially prevailing party on appeal, so long as the party prevailed in all other judicial proceedings. Because the City and Crista do not prevail before this court, we deny their requests.
We reverse and remand for further proceedings.