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One Energy Dev., LLC v. Kittitas Cnty.

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
Jul 9, 2019
9 Wn. App. 2d 1057 (Wash. Ct. App. 2019)

Opinion

36240-0-III

07-09-2019

ONE ENERGY DEVELOPMENT, LLC, Plaintiff, IRON HORSE SOLAR, LLC, Appellant, v. KITTITAS COUNTY, a municipal corporation; and KITTITAS COUNTY BOARD OF COMMISSIONERS; and WILLIAM HANSON, an individual; and "SAVE OUR FARMS! SAY NO TO IRON HORSE!"; and CRAIG CLERF and PATRICIA CLERF, husband and wife, Respondents.


UNPUBLISHED OPINION

PENNELL, A.C.J.

Under Kittitas County's zoning code, a solar farm project can be developed in certain agricultural areas if approved through a conditional use permit (CUP). The code lists several criteria for CUP approval, including, as relevant here, a condition that a project preserve "rural character" as that term is defined in the Growth Management Act (GMA), chapter 36.70A RCW. In the GMA, rural character refers to areas where open space, the natural landscape, and vegetation predominate over the built environment.

One Energy Development, LLC applied to Kittitas County for a CUP in hopes of constructing a large solar farm. A hearing officer initially recommended approval, but the Kittitas County Board of Commissioners (Commissioners) disagreed and voted against the CUP by a tally of 2-1. In making this decision, the Commissioners specified that the solar project was inconsistent with the GMA's definition of rural character because, on the parcels of land at issue in the CUP application, open space, the natural landscape, and vegetation would not predominate over the built environment.

The Commissioners' CUP analysis took too narrow a view of what it means for open space to predominate over the built environment. The GMA's rural character definition refers to patterns of development within the rural element of a county's comprehensive land use plan. It is not limited to a particular parcel or project site. Because the Commissioners' CUP denial was predicated on an erroneous legal determination, this matter must be remanded for further proceedings.

BACKGROUND

One Energy Development, LLC and Iron Horse Solar, LLC sought to construct a solar photovoltaic project (Project) on farmland owned by William Hanson in Kittitas County, Washington. At the time it was proposed, the Project would have been the largest solar facility in Washington, covering 47.5 acres of a 67.8 acre, 4-parcel property. The Project's proposed site was within Kittitas County's agriculture (A-20) zone. Zone A-20 "is an area wherein farming, ranching and rural life styles are dominant characteristics." Kittitas County Code (KCC) 17.29.010. The intent of the A-20 zoning "classification is to preserve fertile farmland from encroachment by nonagricultural land uses; and protect the rights and traditions of those engaged in agriculture." Id. At the time of the Project's CUP application, such a solar project was categorized as a major alternative energy facility and allowed in an A-20 zoning area only as a conditional use. Former KCC 17.61.010(9) (2001), .KCC 17.61.020(4)(b).

One Energy has sold its interests to Iron Horse, leaving Iron Horse the sole real party in interest to this appeal.

Kittitas County sets forth the following criteria that must be met for approval of a CUP:

1. The proposed use is essential or desirable to the public convenience and not detrimental or injurious to the public health, peace, or safety or to the character of the surrounding neighborhood.
2. The proposed use at the proposed location will not be unreasonably detrimental to the economic welfare of the county and that it will not create excessive public cost for facilities and services by finding that
A. The proposed use will be adequately serviced by existing facilities such as highways, roads, police and fire protection, irrigation and drainage structures, refuse disposal, water and sewers, and schools; or
B. The applicant shall provide such facilities; or
C. The proposed use will be of sufficient economic benefit to offset additional public costs or economic detriment.
3. The proposed use complies with relevant development standards and criteria for approval set forth in this title or other applicable provisions of Kittitas County Code.
4. The proposed use will mitigate material impacts of the development, whether environmental or otherwise.
5. The proposed use will ensure compatibility with existing neighboring land uses.
6. The proposed use is consistent with the intent and character of the zoning district in which it is located.
7. For conditional uses outside of Urban Growth Areas, the proposed use:
A. Is consistent with the intent, goals, policies, and objectives of the Kittitas County Comprehensive Plan, including the policies of Chapter 8, Rural and Resource Lands;
B. Preserves "rural character" as defined in the Growth Management Act (RCW 36.70A.030(15) ;
C. Requires only rural government services; and
D. Does not compromise the long term viability of designated resource lands.
KCC 17.60A.015 (emphasis added).

The GMA's rural character definition is currently codified at RCW 36.70A.030(16).

The GMA provision incorporated into Kittitas County's CUP standard (KCC 17.60A.015(7)(B) quoted above) defines "rural character" as a pattern of land use and development where, among other things, "open space, the natural landscape, and vegetation predominate over the built environment." RCW 36.70A.030(16)(a).

Iron Horse's CUP application went before a Kittitas County hearing examiner for an open record public hearing, pursuant to former KCC 15A.01.040(4)(d) (2014) and KCC 15A.02.060. The hearing examiner admitted numerous exhibits into the record, considered evidence, testimony and arguments presented by interested parties regarding the SEPA determination and CUP application. Ultimately, the hearing examiner issued a lengthy written decision, recommending approval of the CUP. The written decision included 44 recommended conditions of approval.

The hearing examiner also considered an appeal of a mitigated determination of nonsignificance under the State Environmental Policy Act (SEPA), chapter 43.21C RCW. The SEPA appeal was denied and not pursued further.

At the time of the hearings in this case, Kittitas County limited the hearing examiner's role to providing recommendations on the issuance of a CUP. Former KCC 15A.01.040(4)(d). Under the relevant code provision, the Commissioners were responsible for considering the hearing examiner's recommendations and making a final decision for the county. Former KCC 15A.01.040(3)(a) (2014).

The recommended conditions of approval were in addition to the mitigation conditions included in the mitigated determination of nonsignificance.

The Commissioners took up the hearing officer's recommended findings and conclusions through a closed record hearing process, pursuant to former KCC 15A.01.040(3)(a) (2014). The Commissioners' hearings were held over two days: December 20, 2016 and January 10, 2017.

During the December 20 hearing, Commissioner Obie O'Brien and Commissioner Paul Jewell questioned the county's staff representative about environmental details of the Project. Commissioner Laura Osiadacz then moved on to a "bigger topic" that caused her the most concern. Clerk's Papers (CP) at 271. Commissioner Osiadacz questioned whether the Project was consistent with preservation of rural character as defined in the GMA. Pointing to the GMA's rural character definition recited above, Commissioner Osiadacz expressed concern that the Project would not result in open space predominating over the built environment since "62.5 percent of the property being use[d] for this project is going to be built on." Id. Commissioner Osiadacz voiced concern that the Project's large size would "take away from our agricultural lands and really take away from the character of our community." Id. at 279. The matter was then continued to January.

During the January 10, 2017 proceeding, Commissioner Osiadacz and Commissioner O'Brien both focused on the issue of whether the Project was consistent with rural character, as required for a CUP. Both commissioners stated that the rural character requirement was not met, but they differed as to their reasoning. Commissioner Osiadacz continued to express concern over the Project site and the fact that over one-half of the property would be covered by development. Commissioner Osiadacz indicated that if she were to take a broader view of what it meant for open space to predominate over the built environment, her analysis of the CUP application would be different. Commissioner O'Brien did take a broader view of what it meant for open space to predominate over the built environment. He explained that the rural character assessment should be made by looking to neighboring properties, not just a project site. Nevertheless, even with this broader view, Commissioner O'Brien explained that the Project was incompatible with the rural character of A-20 zoned land. Given the size of the Project, Commissioner O'Brien commented that the solar farm site would "stick[ ] out like a missing tooth in a smile." Id. at 336.

Specifically, Commissioner Osiadacz stated that if she were to consider the entirety of Mr. Hanson's property, 450 acres, instead of the 67.8 acres at issue, the development would be "under that 50 percent mark" and "there would be no way based on code that I could vote against this." CP at 342.

Commissioner Jewell agreed with Commissioner O'Brien that the rural character assessment goes to "the general landscape within the general area, not special to the individual parcel that's been considered for the project." Id. at 343. However, Commissioner Jewell disagreed with the disposition recommended by his fellow commissioners. Commissioner Jewell reasoned that because a major alternative energy facility, such as a solar farm, can be granted a CUP in an A-20 zone, the only question was whether the impact of such a facility on a surrounding rural community can be adequately mitigated. If impacts can be mitigated, rural character is maintained as a matter of law and the CUP must be granted.

After each commissioner clarified their disagreement over the rural character standard, Commissioner O'Brien moved to deny the CUP application. Commissioner Osiadacz seconded the motion. A discussion ensued, during which Commissioner O'Brien explained that Iron Horse's Project was "not compatible with [existing farming] uses and with the neighborhood." Id. at 353. Commissioner Osiadacz stated she wished to deny the CUP based on her previous comments and what it means for the built environment to predominate over open space. Commissioner Jewell then voiced a dissenting opinion. He expressed concern over whether the Commissioners' decision would not be supportable through written findings. After calling for a formal vote, the CUP was denied, 2-1.

The Commissioners subsequently issued a five-page written decision in resolution form. For ease of reference, a copy of the decision, id. at 10-14, is appended to this opinion. The decision contains two sets of numbered paragraphs, the first numbered 1-12 and the second numbered 1-4. The first set of paragraphs are presented as findings of fact and conclusions of law, and consist of uncontroverted procedural facts leading up to the Commissioners' decision. The second set of numbered paragraphs addresses the contested issue of whether the CUP should be granted. Paragraph 1 cites to the GMA's rural character definition (former RCW 36.70A.030(15) (2005)), and states that, if the Project were approved "[o]pen space, the natural landscape, and vegetation would not predominate over the built environment on the subject parcels." Id. at 14. Paragraphs 2-3 of the second set of numbered paragraphs state, without elaboration, that the proposed Project fails to comport with the requirements of KCC 17.60A.015(1), KCC 17.60A.015(5), and KCC 17.60A.015(7)(B).

Iron Horse Solar subsequently sought review in Kittitas County Superior Court under the Land Use Petition Act (LUPA), chapter 36.70C RCW. The superior court issued a memorandum decision denying relief. Iron Horse now appeals to this court.

ANALYSIS

Standard of review

Local land use decisions are reviewed under LUPA. RCW 36.70C.020(2). When assessing the merits of a LUPA appeal, we stand in the same position as the superior court and review the administrative record. King County Dep't of Dev. & Envtl. Servs. v. King County, 177 Wn.2d 636, 643, 305 P.3d 240 (2013). A party appealing a land use decision bears the burden of meeting one of the six statutory standards for relief. RCW 36.70C.130(1). Iron Horse seeks relief under three of the applicable standards: RCW 36.70C.130(1)(b) ("The land use decision is an erroneous interpretation of the law, after allowing for such deference as is due the construction of a law by a local jurisdiction with expertise."); RCW 36.70C.130(1)(c) ("The land use decision is not supported by evidence that is substantial when viewed in light of the whole record before the court."); and RCW 36.70C.130(1)(d) ("The land use decision is a clearly erroneous application of the law to the facts.").

Under the standards cited by Iron Horse, questions of law are reviewed de novo and factual determinations are reviewed for substantial evidence. Cingular Wireless LLC v. Thurston County, 131 Wn.App. 756, 768, 129 P.3d 300 (2006). We defer to factual determinations made by the highest administrative body exercising fact-finding authority. Id. In this case, the Commissioners were the highest (and only) fact-finding authority. Former KCC 15A.01.040(3)(a). When it comes to review under RCW 36.70C.130(1)(d), a land use decision will be rejected as clearly erroneous if "we are left with a definite and firm conviction that a mistake has been committed." Cingular Wireless, 131 Wn.App. at 768.

The legal question of the rural character definition

Under the circumstances relevant to this case, Kittitas County's CUP provision requires an assessment of whether a proposed conditional use would be consistent with preservation of "rural character" as defined in the GMA.

The GMA defines "rural character" as:

[T]he patterns of land use and development established by a county in the rural element of its comprehensive plan:
(a) In which open space, the natural landscape, and vegetation predominate over the built environment;
(b) That foster traditional rural lifestyles, rural-based economies, and opportunities to both live and work in rural areas;
(c) That provide visual landscapes that are traditionally found in rural areas and communities;
(d) That are compatible with the use of the land by wildlife and for fish and wildlife habitat:
(e) That reduce the inappropriate conversion of undeveloped land into sprawling, low-density development;
(f) That generally do not require the extension of urban governmental services; and
(g) That are consistent with the protection of natural surface water flows and groundwater and surface water recharge and discharge areas.
RCW 36.70A.030(16).

Rules of statutory interpretation guide our analysis of the GMA's rural character definition. The "fundamental objective" of statutory interpretation "is to ascertain and carry out the [l]egislature's intent." Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002). The primary resource for this endeavor is the language used by the legislature. But words must not be viewed in isolation. Instead, "meaning is discerned from all that the [l]egislature has said in the statute and related statutes which disclose legislative intent about the provision in question." Id. at 11.

As previously stated, our review of legal issues is de novo. Because the GMA is a state statute, not a local ordinance, local expertise is not relevant to our interpretation. City of Federal Way v. Town & Country Real Estate, 161 Wn.App. 17, 37-38, 252 P.3d 382 (2011).

Viewing RCW 36.70A.030(16) in context, it is apparent that the question of whether open space will predominate over the built environment must be considered in the context of patterns of development within "the rural element" of the county's "comprehensive plan." This is a broad standard, and for good reason. The GMA was written to address county-wide planning issues, not specific land use determinations. See Citizens for Mount Vernon v. City of Mount Vernon, 133 Wn.2d 861, 873, 947 P.2d 1208 (1997). The GMA affords counties the flexibility to include a variety of densities within the rural element of their comprehensive plans. RCW 36.70A.070(5)(b). Given this circumstance, the question of whether open space predominates over the built environment cannot be viewed from a myopic perspective, specific to one piece of property or a particular project. Although an individual land use decision can properly take into account larger goals set by the GMA and a county's comprehensive plan, see Cingular Wireless, 131 Wn.App. at 770-72, this individualized context does not alter the meaning of the GMA's statutory terminology.

It bears emphasis that, under the Kittitas County Code, the GMA's rural character assessment is only one of several general standards governing CUP approval. In addition to preserving rural character as defined by the GMA, a CUP applicant must also establish that a proposed project is "not detrimental or injurious . . . to the character of the surrounding neighborhood" and "will ensure compatibility with existing neighboring land uses." KCC 17.60A.015(1), (5). Such considerations are, by definition, highly localized, though not necessarily confined to a particular project site. Local considerations are important to ensuring that a zoning decision is compatible with the goals of the GMA and a county's comprehensive plan. But they are not the same thing as the broader GMA rural character inquiry.

Not all components of the GMA's rural character definition are necessarily broader than the neighborhood considerations set forth at KCC 17.60A.015(1) and (5). The GMA's "predominate," or density, inquiry is only one of seven components of the rural character definition. RCW 36.70A.030(16)(a). Several of the components can involve highly localized considerations. For example, a small development could be functionally incompatible with a jurisdiction's rural character if it would impair fish and wildlife habitat. RCW 36.70A.030(16)(d). Or a relatively small structure could be visually incompatible with rural character if it marred the appearance of the rural landscape. RCW 36.70A.030(16)(c). When it comes to the functional and visual components of the rural character definition (as opposed to the density component), "rural character is perceived at relatively close quarters (e.g., within the view shed, 'just up the road,' or across the fence line)." Vashon-Maury v. King County, No. 95-3-0008, 1995 WL 903209 at *47, 1995 GMHB LEXIS 428 (Cent. Puget Sound Growth Mgmt. Hr'gs Bd. Final Decision and Order Oct. 23, 1995).

The Commissioners' decision

In the discussions leading up to the CUP decision, the Commissioners debated the appropriate interpretation of the GMA's rural character definition. Commissioner Jewell and Commissioner O'Brien advanced an interpretation of rural character fairly consistent with our analysis. But Commissioner Osiadacz articulated a different, narrower view that is inconsistent with the interpretation set forth above. Because the adverse CUP decision turned solely on the votes of Commissioner O'Brien and Commissioner Osiadacz, the ultimate legality of the Commissioners' decision turns on whether it was premised on the narrow interpretation advanced by Commissioner Osciadacz.

Our review begins with the Commissioners' written decision. Because the Kittitas County Code requires the Commissioners' decision to include written findings, we scrutinize the findings under the same standard applicable to judicial findings. Weyerhaeuser v. Pierce County, 124 Wn.2d 26, 35, 873 P.2d 498 (1994). This standard requires that written findings must go beyond the "[s]tatements of the positions of the parties and a summary of the evidence presented." Id. at 36. Instead, adequate findings must also illuminate the decision-maker's reasoning process. Id. Findings are not necessary as to every controverted fact, In re Detention of LaBelle, 107 Wn.2d 196, 218-19, 728 P.2d 138 (1986), but they must be "sufficiently specific to permit meaningful review." Id. at 218. In the land use context, findings should also be sufficiently detailed to provide guidance to a proposed developer. Kenart & Assoc. v. Skagit County, 37 Wn.App. 295, 303, 680 P.2d 439 (1984).

The only portion of the Commissioners' decision addressing the controverted issue of whether to issue a CUP is the second set of numbered paragraphs. Paragraphs 2-4 of this set of paragraphs are nothing more than legal conclusions, specifying that the Project failed to meet the requirements of KCC 17.60A.015(1), (5), and (7)(B). As such, they cannot be fairly characterized as findings. The only portion of the Commissioners' decision that can be interpreted as a finding of a controverted fact is the first paragraph.

It states:

1. Open space, the natural landscape, and vegetation would not predominate over the built environment on the subject parcels if the proposal were approved in this location (RCW 36.70A.030(15)).
CP at 14.

This finding reflects Commissioner Osiadacz's view that rural character must be judged according to the parcels of land at issue in a CUP application. As previously stated, this assessment is too narrow. Because the sole finding in support of the Commissioners' legal conclusions reflects a misinterpretation of the governing law, the written decision is not sufficient to withstand appellate scrutiny.

In apparent recognition of the deficiencies with the Commissioners' written decision, the county urges us to supplement the written decision with oral "statements in the record." Labelle, 107 Wn.2d at 219. If statements from Commissioner O'Brien and Commissioner Osiadacz indicated that reasons other than the density of the Project site prompted the vote against the CUP, then the county's position might have weight. After all, as documented by the superior court, there are numerous facts in the record that could support denial of the CUP based on KCC 17.60A.015(1), (5), and (7)(B).

The county's suggested approach is ultimately unhelpful because the Commissioners' oral comments underscore the concern raised by the written decision. Commissioner Osiadacz went out of her way to make clear that her vote against the CUP turned on the fact that over one-half of the Project site would be covered by development instead of open space. Commissioner Osiadacz also made plain that if she had taken a broader geographic view of what it meant for open space to "predominate" over the built environment, her vote would be different.

Commissioner Osiadacz's transparency as to the reasons for her CUP decision deserves great credit. Commissioner Osiadacz knew she held a minority perspective of how to view the GMA's rural character definition. She also knew she held the deciding vote on Iron Horse's CUP application. By candidly clarifying the fact that her vote on the CUP application turned on her assessment of the rural character definition, Commissioner Osiadacz ensured Iron Horse would receive meaningful consideration on appeal, should her assessment turn out to be incorrect. That is what happened and it is the way our justice system should work. Because Commissioner Osiadacz's assessment of the rural character definition turned out to be inconsistent with our interpretation, the current CUP decision cannot stand. Applicable remedy

Appellate remedies for an adverse land use decision include reversal or remand for modification or further proceedings. RCW 36.70C.140. Iron Horse requests we reverse the Commissioners' decision and remand with instructions to adopt the findings and conclusions proposed by the Kittitas County hearing examiner. This position lacks legal support. The hearing examiner never made any legal findings. Pursuant to the terms of the applicable county code, former KCC 15A.01.040(4)(d), the hearing examiner merely made "recommendations" that the Commissioners were free to adopt or reject. See Marantha Mining v. Pierce County, 59 Wn.App. 795, 800-01, 801 P.2d 985 (1990). Although we will sometimes reverse an adverse land use decision with instructions to grant specific relief, doing so is an extreme remedy. We will only direct specific relief when it is apparent that remand for further proceedings would be "pointless." Id. at 805.

Here, we have no reason to believe remand would be pointless. The legal error giving rise to this decision was prompted by a good-faith dispute over the meaning of a technical statutory term. There was no misconduct or bad faith. As set forth by the competing analyses provided by the hearing examiner and the superior court, the facts in the record could have supported either approval or denial of the CUP. The appropriate remedy is therefore to remand for further proceedings without instructions as to a particular disposition.

CONCLUSION

This matter is remanded for reconsideration of Iron Horse's CUP application, pursuant to the rural character definition set forth in this opinion. The Commissioners' decision on reconsideration shall include written findings of fact that are sufficiently detailed to permit meaningful review by Iron Horse and by the judiciary, should there be any further appellate review.

A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.

I CONCUR: SIDDOWAY, J.

APPENDIX

Fearing, J. (dissenting)

Ample facts support the findings and conclusions of the Kittitas County Board of Commissioners regardless of on what theory a commissioner relied in denying the application of a conditional use permit. Therefore, I would affirm the trial court's denial of Iron Horse Solar's LUPA petition. The trial court penned a thorough and thoughtful decision when denying the petition, and I adopt that decision as my dissent. Attached is a copy of the trial court's decision.


Summaries of

One Energy Dev., LLC v. Kittitas Cnty.

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
Jul 9, 2019
9 Wn. App. 2d 1057 (Wash. Ct. App. 2019)
Case details for

One Energy Dev., LLC v. Kittitas Cnty.

Case Details

Full title:ONE ENERGY DEVELOPMENT, LLC, Plaintiff, IRON HORSE SOLAR, LLC, Appellant…

Court:COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

Date published: Jul 9, 2019

Citations

9 Wn. App. 2d 1057 (Wash. Ct. App. 2019)
9 Wash. App. 2d 1057