Opinion
No. 25691-0-III.
June 3, 2008.
Appeal from a judgment of the Superior Court for Whitman County, No. 06-2-00051-8, David Frazier, J., entered November 1, 2006.
Affirmed by unpublished opinion per Schultheis, C.J., concurred in by Sweeney, J., and Thompson, J. Pro Term.
CLC Associates of Spokane Valley (CLC) applied for site plan approval to build a Wal-Mart store in the city of Pullman (City). The City approved the site plan, and also issued a determination of nonsignificance (DNS) under the State Environmental Policy Act (SEPA), chapter 43.21C RCW. The Pullman Alliance for Responsible Development (PARD) sought administrative review. The city hearing examiner (examiner) affirmed both decisions. PARD then filed a Land Use Petition Act(LUPA), chapter 36.70C RCW, appeal to the Whitman County Superior Court, which upheld the examiner's decisions.
PARD appeals, contending (1) the decision upholding the site plan permit must be reversed because CLC and the City failed to comply with Pullman City Code (PCC) site approval requirements pertaining to pedestrian/vehicle traffic, fiscal impact, and consistency with the comprehensive plan, and (2) the decision upholding the DNS must be reversed because CLC and the City failed to comply with SEPA requirements to assess traffic/pedestrian impact and urban blight attributable to business competition. We reject PARD's contentions and affirm the superior court.
FACTS AND PROCEDURE
On October 28, 2004, CLC applied to the City for site plan approval to build a 223,000 square foot Wal-Mart store on a 28.03-acre tract on the south side of Bishop Boulevard near Fairmount Avenue. The site is currently an undeveloped wheat field and is zoned C3 General Commercial, which permits the Wal-Mart project outright. Directly to the east is the new community hospital. Due north is the Pioneer Hill residential area, which also contains Lincoln Middle School, Franklin Elementary School, and an assisted living facility. Approximately 800 children attend the two schools. The City's downtown district is three quarters of a mile north of the site.
The proposed Wal-Mart store will be open 24 hours and includes groceries, general merchandise, a pharmacy with a drive-through window, a garden center, and a tire and lube express. Original plans for a gas station are not part of the present application. The store's parking lot will have 1,039 parking spaces and overnight camper vehicles may be allowed.
CLC's application included a SEPA environmental checklist and a traffic impact analysis (TIA). The city code requires that site plan applications be considered by a review committee comprised of the director of public works, director of planning and economic development, city engineer, fire chief, and building inspector. CLC revised its site plan several times in response to comments by city staff. The City's finance director, Troy Woo, submitted a fiscal analysis report on January 19, 2005. He concluded the proposed Wal-Mart store would have a net positive fiscal impact on the city budget during both the construction and ongoing operations phases.
CLC submitted its final TIA in May 2005, after twice revising the document to address traffic mitigation and pedestrian safety concerns raised by independent traffic engineer Christopher Brown, the Washington State Department of Transportation (WSDOT), and the City. The TIA estimated the store would generate 11,121 traffic trips per day in and out of the Wal-Mart parking lot, with 819 of those trips (401 entering the site and 418 exiting) occurring in the afternoon peak hour each weekday. The TIA conclusion was that, as mitigated, the project would not result in significant adversetraffic impacts. The City considered the TIA for both site plan and SEPA purposes.
The City's SEPA responsible official, Mark Workman, issued a preliminary DNS on June 22, 2005. He then reviewed extensive public comment and issued a final DNS on August 25. The site plan, including 35 mitigating conditions, was approved on September 22.
PARD then filed a consolidated administrative appeal of both the DNS and site plan approval. The examiner considered testimony from representatives of PARD, CLC, the City, and members of the public who expressed strong sentiment both for and against the Wal-Mart project. The examiner issued a decision affirming both the DNS and the site plan approval, conditioned on resolution of certain traffic-related issues. PARD filed a LUPA appeal to the Whitman County Superior Court, which initially remanded the matter back to the examiner for more detailed findings. On October 2, 2006, the examiner issued a revised decision, again upholding the DNS and site plan approval. On November 1, the superior court issued an order upholding the examiner's decision. PARD appeals. The City has joined in the response brief of CLC.
REVIEW STANDARDS
We stand in the same position as the superior court when reviewing its decision on a land use petition. Biermann v. City of Spokane, 90 Wn. App. 816, 821, 960 P.2d 434 (1998). A party seeking relief under LUPA carries the burden of meeting one of thestandards set forth in RCW 36.70C.130(1). Schofield v. Spokane County, 96 Wn. App. 581, 586, 980 P.2d 277 (1999). The standards pertinent in this case are:
(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;
(c) The land use decision is not supported by evidence that is substantial when viewed in light of the whole record before the court;
(d) The land use decision is a clearly erroneous application of the law to the facts.
Issues raised under subsection (b) are questions of law reviewed de novo. Schofield, 96 Wn. App. at 586. Challenges to findings of fact under subsection (c) are reviewed under the substantial evidence test, i.e., whether evidence is sufficient to persuade a fair-minded person that the declared premise is true. Id.; see Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wn.2d 169, 176, 4 P.3d 123 (2000). The clearly erroneous test under subsection (d) is whether the court is left with the definite and firm conviction that a mistake has been committed. Schofield, 96 Wn. App. at 586. Our review is highly deferential; the evidence and all reasonable inferences are viewed in the light most favorable to the party that prevailed in the highest forum exercising fact-finding authority. Id. at 586-87.
The standards of review are well developed under Washington law. We thus do not discuss PARD's cited Oregon cases on standards of review.
A recurrent theme in PARD's appeal is that the examiner failed to enter adequate findings of fact and conclusions of law for review. Administrative findings must reflect full and proper consideration of all issues in the case so that the parties and the appellate court may be fully informed as to the bases of the decision. Weyerhaeuser v. Pierce County, 124 Wn.2d 26, 35, 873 P.2d 498 (1994); Nelbro Packing Co. v. Baypack Fisheries, LLC, 101 Wn. App. 517, 532-33, 6 P.3d 22 (2000). In particular, findings are required on matters that establish the existence or nonexistence of determinative factual matters. The process used by the decision maker should be revealed by the findings of fact and conclusions of law. Weyerhaeuser, 124 Wn.2d at 36. Here, we consider the examiner's findings of fact and conclusions of law to be adequate for review and reject PARD's claims to the contrary.
ANALYSIS
A. SITE PLAN APPROVAL
PARD cites to the following site plan approval requirements in PCC 17.135.070 as relevant to its appeal:
The [site plan review committee] and director or the board on appeal or referral shall base its review, findings, and decisions on the following:
(1) the goals, policies, and standards of the Comprehensive Plan;
. . . .
(5) the impact of the proposed use on pedestrian and vehicular circulation;
(6) protection of neighboring owners, uses, and properties from adverse effects of the proposal;
. . . .
(11) the fiscal impact of the proposed development on the city.
PCC 17.135.070(1), (5), (6), (11).
As proponent of the Wal-Mart project, CLC had the initial burden before the City to meet the site plan approval requirements set forth in PCC 17.135.070. See PCC 17.135.080(2). If CLC carried this prima facie burden, the burden then shifted to PARD to show that one of the standards for relief applicable to LUPA appeals has been met. RCW 36.70C.130(1); Schofield, 96 Wn. App. at 586.
1. Pedestrian and Vehicle Circulation
PARD contends the examiner erred in his findings of fact and conclusions of law that CLC's site application adequately addressed the impact on pedestrian and vehicular circulation under PCC 17.135.070(5). PARD's challenge is to the sufficiency of the TIA for claimed failure to (a) address the impact of Saturday traffic, (b) study all necessary intersections and driveways, (c) properly estimate the number of new daily trips the Wal-Mart store would generate, and (d) consider pedestrian impact.
PARD does not particularly discuss PCC 17.135.070(6), but appears to include it with reference to pedestrian safety.
a. Saturday traffic. PARD contends the TIA is inadequate because it fails to address the impact of traffic on Saturdays, which are WalMart's busiest days. PARD's traffic expert Rick Nys called the lack of a Saturday traffic study a glaring deficiency.
PARD particularly points to findings of fact 65 and 66, which reflect that no Saturday study was conducted because CLC merely assumed that background traffic levels would be less on Saturdays and thus any increase in strictly Wal-Mart traffic would have no impact. PARD says this assumption is unsupported by any evidence and that the examiner has thus failed to resolve factual disputes regarding Saturday traffic impact. The arguments fail.
First, PARD does not discuss finding of fact 38. It states:
Rick Nys alleged . . . that the PM peak hour would not be the time when the worst traffic impacts would occur but that Saturdays or holidays could cause more traffic impacts. [CLC's] traffic expert, Mr. Kevin Picanco, stated that the PM peak hour is typically the worst traffic time, and as such this time was identified as the analysis period by both the City of Pullman and WSDOT. . . . Mr. Picanco testified that in his expert opinion following completion of the TIA, he did not see any evidence that Saturday or holiday traffic volumes would be higher than the PM peak hour. PARD did not submit any evidence showing that Saturday or holiday traffic would likely be higher than the PM peak hour and Mr. Nys stated he could not determine whether the results of the TIA would definitely be different if holidays and Saturdays were studied.
Clerk's Papers (CP) at 93.
Finding of fact 38 is supported by substantial evidence in the record. Significantly, PARD presented no study to contradict CLC's evidence of lack of Saturday traffic impact. Finding of fact 38 in turn partially supports conclusion of law 24 that the TIA contains a technically adequate traffic study and reasonable forecast of trafficimpacts.
b. Omitted intersections. PARD contends the TIA is inadequate because it failed to study all necessary intersections or explain why some intersections were studied but others more significantly impacted were not. PARD thus claims the TIA withholds critical information necessary for the City to make a site plan decision and/or to impose mitigation for traffic impacts. PARD concludes the examiner's decision upholding the TIA despite its failure to evaluate all significantly impacted intersections was not based upon substantial evidence and was clearly erroneous. We disagree.
As explained in finding of fact 46, it is standard practice for agencies with jurisdiction over roadways to define the scope of a TIA. That practice was followed here when the City and the WSDOT defined the scope of study. The studied intersections include: (1) Grand Avenue Crestview Street, (2) Grand Avenue Bishop Boulevard, (3) Bishop Boulevard Harvest Drive, (4) Bishop Boulevard Fairmount Drive, (5) Bishop Boulevard Klemgard Street, (6) Bishop Boulevard Professional Mall Boulevard, (7) Grand Avenue Shopko Driveway, and (8) Grand Avenue Fairmount Drive.
Finding of fact 46 then acknowledges PARD's allegation that the TIA erroneously excluded several intersections and driveways. Finding of fact 56 identifies those locations, including entrances to and from the hospital, a Safeway store, professional buildings, and the Holiday Inn. Also identified are the intersections at Bishop Main Street, Bishop Fairmount, the downtown intersections on Grand (north of Crestview), the intersection of Highway 270 with Main Bishop, and the driveways of several businesses on Bishop.
PARD particularly emphasizes that the Bishop Main intersection should have been studied, and that the WSDOT actually requested study of that intersection. But PARD ignores that the WSDOT's request was in response to CLC's initial TIA. After CLC made revisions, the WSDOT and the City jointly determined it was not necessary to study that intersection. PARD submitted no evidence to the contrary.
PARD further argues that the TIA shows Wal-Mart traffic will add considerable numbers of vehicles to the omitted intersections, yet fails to analyze how these intersections would function. For example, citing to the TIA at pages 234-35 of the administrative record (AR), PARD states that 30 percent of Wal-Mart's 11,000 trips per day (3,300 cars) will travel on Grand north of Crestview and there will be 4,000 new vehicles each weekday and 6,000 on weekends on Bishop in front of the hospital. PARD says these traffic counts are similar to, and in some cases greater than, increases at intersections that were included in the TIA. PARD concludes the examiner's decision is deficient because it provides no explanation for distinguishing between the studied and omitted intersections.
But the critical point is that the City and the WSDOT were allowed to define the scope of study. Finding of fact 46 further reflects Mr. Workman's and Mr. Picanco's opinion testimony that PARD's named intersections were properly excluded and that "it is not appropriate to disproportionately connect the proposed Project to existing traffic issues in Pullman." CP at 95. PARD did not object to any evidence or expert qualifications during the administrative proceeding. There is no dispute that Mr. Workman, the independent traffic engineer (Mr. Brown), and the WSDOT all have the expertise to define the proper scope of the traffic study. ER 702, 703. The examiner then had broad latitude to determine the weight given to their opinions. See In re Marriage of Harrington, 85 Wn. App. 613, 637, 935 P.2d 1357 (1997) (fact finder determines weight to give expert opinion). We do not disturb that determination.
The examiner's findings are thus supported by substantial evidence and, in turn, support conclusion of law 21 that the TIA study was adequate without the omitted intersections and driveways. The findings also support conclusion of law 24 that the TIA was technically adequate with respect to studied/omitted intersections. PARD did not submit its own evidence that particular intersections would be significantly impacted by the project. PARD failed its burden under LUPA. PARD's argument that the examiner improperly shifted the burden of proof to PARD is without merit.
c. Estimated new daily trips. PARD contends the TIA underestimated the number of daily trips the Wal-Mart store would generate because it relied on an Institute of Traffic Engineers (ITE) Trip Generation Manual code that is inappropriate for a store of this size. PARD further contends that Wal-Mart improperly withheld trip generation data as proprietary and thus deprived the City of critical information needed for the TIA.
PARD first relies on finding of fact 34, which reflects that for a valid analysis the TIA must accurately estimate the traffic volume, and that a larger store would be expected to generate more traffic. PARD then points to finding of fact 45:
The TIA prepared by Wal-Mart may underestimate the number of vehicle trips generated by its proposal to an unknown extent. That information is likely known to Wal-Mart, but Wal-Mart has withheld it as proprietary information. Wal-Mart's decision to construct the proposal at its current location would necessarily have been based on information from which anticipated traffic impacts could be more accurately identified with additional information known to Wal-Mart. Instead, Wal-Mart's analysis is based on data from smaller stores collected nationally.
CP at 94. PARD contends this finding establishes that CLC used invalid trip generation data for a Wal-Mart store of the size proposed for Pullman. PARD concludes there is no coherence between findings of fact 34 and 45, and the examiner's ultimate decision that the TIA was adequate. The arguments lack merit.
PARD overlooks findings of fact 32 and 35. Finding of fact 32 states that the ITE Trip Generation Manual, 7th Edition, establishes standards for calculating trip generation. Specifically, Land Use Code 813 (Free Standing Discount Superstore) is suggested as theappropriate reference in the TIA for determining trip generation of a Wal-Mart Supercenter. Finding of fact 35 then states that the TIA used vehicle trip counts for ITE Code 813 in determining its traffic calculations for the weekday PM peak hour when the greatest traffic demands are placed on the surrounding transportation system. The weekday PM peak hour was also identified by the City and the WSDOT as the time period on which to base the TIA, which found that the project would generate 819 net new trips during the PM peak hour (401 vehicles entering and 418 exiting the site).
As CLC and the City explain, finding of fact 45 reflects the examiner's earlier observation in finding of fact 31 that even using approved methodology, a TIA generally involves some conjecture and estimation of newly generated daily trips. Thus, the examiner found only that the TIA may underestimate traffic numbers to some unknown extent, not that it actually did. Further, Wal-Mart would necessarily have some proprietary information associated with a project. PARD only speculates, without having conducted its own studies, that any such information could change the TIA results in the face of the acceptable ITE Code 813 standards. Likewise, if ITE Code 813 was properly used in the TIA for the Pullman project, the examiner's reference to data from smallerstores collected nationally does not itself defeat otherwise substantial evidence that the proper methodology was used here.
CLC further points out that it presented substantial evidence that the TIA overestimated the traffic numbers because it included projected trips related to a gas station that is no longer part of the project's current application. The gas station alone increased traffic levels by approximately 20 percent.
Indeed, the examiner makes this clarification in finding of fact 37:
Christopher Brown, who reviewed the TIA for the City of Pullman, concurred with the trip generation rates. Neither of [PARD's] traffic experts completed a study or submitted any evidence that could show that use of this Land Use Category was in error, and admitted that they would need to complete a study themselves to determine this.
CP at 93.
Thus, substantial evidence supports the examiner's findings that the TIA used proper methodology to estimate new daily trips and the determination that the TIA is technically adequate. PARD did not submit its own evidence that the TIA significantly underestimated traffic numbers. PARD thus failed to carry its burden under LUPA. PARD's argument that the examiner improperly shifted the burden of proof to PARD is without merit.
d. Pedestrian impact. PARD contends the TIA must be deemed deficient under PCC 17.135.070(5) because it failed to analyze impacts to off-site pedestrians, particularly where children are impacted in school zones. PARD points to finding of fact 51, which states that CLC provided absolutely no analysis of this critical safety issue in its TIA. Aside from this key finding, PARD contends the examiner failed to provide any other analysis on the pedestrian issue. We find no error.
Findings of fact 51-55 are pertinent to this issue and all are supported by substantial evidence in the record. Finding of fact 51 states:
The TIA did not contain an evaluation of the impacts to pedestrian access around the proposed Supercenter, such as on Bishop, Grand, Fairmount, or any of the surrounding streets.
CP at 98. Finding of fact 52 states:
Wal-Mart's response to the issue of pedestrian impacts was its traffic consultant's statement that he did not believe pedestrians would be significantly impacted because pedestrians would have a lot of green-light time when walking along Bishop.
CP at 98. Finding of fact 53 states: "Wal-Mart also noted that it was providing sidewalks within its project." CP at 98. Finding of fact 54 states:
In regards to impacts to pedestrians in the Pioneer Hill neighborhood Wal-Mart proposes to install one 50-foot raised median on Harvest Dr. where it intersects with Bishop Blvd., and install signs to "discourage cut-through" traffic.
CP at 98. Finding of fact 55 states:
When the issue of pedestrian impacts in the Pioneer Hill neighborhood was raised by [PARD] before the Examiner, Mr. Picanco stated that he did not believe cut-through traffic would be a problem. He estimated that the vast majority of Wal-Mart traffic will use other roads to access the proposed Supercenter.
CP at 98.
Evidence in the record also establishes that CLC completed a pedestrian and bicycle circulation plan identifying sidewalks and shared bicycle routes on Bishop, on Fairmount, and on the project site. CLC is constructing sidewalks along Fairmount and providing crosswalk striping at the Fairmount Bishop intersection. The project also complies with the City's design standards with respect to pedestrian safety and sidewalks. Furthermore, as reflected in findings of fact 54 and 55, Mr. Brown suggested the mitigating traffic calming measures in the school zone. CLC has thus agreed to construct the raised median and signage discouraging cut-through traffic. Mr. Picanco also testified that the volume of traffic through Pioneer Hill would be safe and reasonable for an arterial. He perceived no evidence of safety impacts to school children.
Conclusion of law 13 specifically references several findings, including findings of fact 51-55, and states:
As all site plan application review factors were properly considered by the Director in his review of the proposed Project, site plan approval was proper. PARD was unable to produce substantial evidence to show that the Director failed to consider the factors contained in PCC 17.135.070.
CP at 118. Conclusion of law 24 states: "Any transportation or circulation issue not specifically addressed herein is considered by the [examiner] as being inconsequential to the project." CP at 122.
In this situation, we conclude that the record and the examiner's ruling reflect adequate study of pedestrian concerns to comport with PCC 17.135.070(5). PARD has produced no contrary evidence and fails its burden under LUPA.
2. Fiscal Impacts
PARD contends the examiner erred in determining that CLC's site plan application adequately considered the project's fiscal impacts on the City under PCC 17.135.070(11). PARD mounts this challenge on two bases: (a) a factual issue — did the City adequately analyze the fiscal impacts to its municipal budget? (b) a legal issue — is the fiscal impact analysis limited to the city budget or does it require a broader analysis of the project's fiscal impacts on the City as a whole?
a. Adequacy of fiscal impact analysis. Relying on findings of fact 83 and 84, PARD contends Mr. Woo's fiscal impact analysis was incomplete and based upon untested assumptions. The findings indicate Mr. Woo admittedly did not assess street repair costs or quantify the impact on the police department and other public services, and he merely speculated that the City would realize a sales tax increase from the new store. In view of these findings, PARD contends the examiner's conclusion of law 12 that the City's analysis is complete and conservative is incongruous. PARD concludes the site plan approval must be reversed for lack of a credible fiscal analysis on the impacts to the City budget. The arguments fail.
PARD ignores findings of fact 74-82, which discuss Mr. Woo's analysis in detail. Finding of fact 74 reflects the City's recognition of the requirements of PCC 17.135.070(11), and that Mr. Woo provided the requested analyses. Mr. Woo submitted Page 18 his report to Mr. Workman on January 19, 2005 — several months before the site plan was approved.
Finding of fact 75 reflects, in detail, Mr. Woo's explanations why the Wal-Mart project would have a positive fiscal impact on the City during the construction phase. He estimated the City would receive $119,000 in sales tax revenue on the value of the construction and $80,000 in permit fees. Moreover, CLC would pay all estimated costs of water, sewer, storm water infrastructure ($735,000), and all traffic infrastructures ($728,000).
Findings of fact 76-78 reflect Mr. Woo's determination that WalMart's ongoing operations would have an overall positive fiscal impact on the City from annual property taxes ($64,000) and utility taxes ($360,000). He said sales tax was difficult to predict but considering current sales data and adjusting it upward by 20 percent, a conservative estimate is that sales tax revenue will increase by $41,587 annually.
Findings of fact 79-82 reflect Mr. Woo's assessment of costs of the Wal-Mart project to the City. Mr. Woo determined that fiscal impacts due to an increase in fire services could not be determined. However, both he and the fire chief stated that the building code fire safety requirements would minimize the need for additional fire personnel. Mr. Woo also consulted the police chief, who estimated that 120 calls for police services would occur based on the call experience of current commercial areas. Both the police chief and Mr. Woo stated that the already considerable growth in the City's south end will require staffing needs, but they could not be attributed solely to the Wal-Mart project. Mr. Woo did determine there would be a financial impact on street services because newly constructed roads would need to be maintained, repaired, and eventually replaced or resurfaced. Approximately $7,200 annually would be collected from Wal-Mart's utility tax contribution and placed in the street fund. Finally, Mr. Woo concluded that additional Saturday Dial-A-Ride van transit services at an estimated annual cost of $24,960 may be needed as a result of growing demand. But growth is occurring citywide, so only a portion of that cost would be attributable to Wal-Mart.
The above findings are all supported by substantial evidence and, in turn, support conclusion of law 12 that the City in fact considered fiscal impacts of the project on the City as required by PCC 17.135.070(11).
Moreover, contrary to PARD's argument, findings of fact 83 and 84 do not create incongruity. Finding of fact 83 states:
Mr. Woo acknowledges that much of the impact to services "cannot be determined at this time." AR 418. For example, with respect to key public services, Mr. Woo noted "[t]he fiscal impact to the public safety departments, Police and Fire cannot be quantified at this time." AR 416. Woo acknowledged that the cost of street repairs is "the biggest concern," AR 418, but he did not assess them. Mr. Woo made no effort to assess the additional expense to the Police Department incurred as a result of calls to the Wal-Mart store. The Police Chief recognized that "more staff likely" would be needed and that there was a need to perform a "precise workload analysis," AR 413, the Police Chief generally suggested increased demand of his department's resources.
CP at 108. Finding of fact 84 states:
Mr. Woo recognized that unless Wal-Mart draws new shoppers from outside the Pullman area, the sales tax generated by the proposed Supercenter will likely remain constant for the City. AR 416. Mr. Woo opined that sales tax revenue will increase based upon the assumption that Wal-Mart will pull in revenues from outside Pullman. Mr. Woo does not base this conclusion upon any specific data or analysis.
CP at 108. Nothing in these findings detracts from the fact that Mr. Woo conducted as thorough a fiscal analysis as could be accomplished without speculation, as is illustrated in the other findings. The examiner's conclusion of law 12 that Mr. Woo's report constituted a complete and conservative analysis is supported by substantial evidence and is not clearly erroneous.
PARD did submit its own extensive evidence of national studies suggesting that Wal-Mart's predatory business practices tend to negatively impact the community in several ways. This evidence is reflected in finding of fact 85:
[PARD] alleged in both written and oral testimony that the proposed Project would have negative economic impacts upon the City due to Wal-Mart's business practices, and that these impacts were not properly studied by the City. Specifically, [PARD] alleged that Wal-Mart would have a negative impact on the City due to alleged unfair business practices that could include the elimination of competition, the undermining of unions, underemployment, downward pressure on wages, and increased pressure on public services. In an effort to support these claims, [PARD] offered studies and statements relating to other retail projects in other cities and states. [ PARD] did not complete a study of how the proposed Project would impact the City of Pullman, but its expert witnesses conceded that such a study would need to be completed to determine the economic impacts of the proposed Project on local businesses.
CP at 108 (emphasis added).
Critically, substantial evidence supports the italicized part of the finding. PARD has submitted no evidence to contradict the Woo analysis upon which the City and CLC complied with PCC 17.135.070(11). Moreover, in finding of fact 71, the examiner expressly rejected PARD's studies as not providing credible evidence pertinent to the City. PARD has failed its burden under LUPA of showing insufficient evidence or legal error.
b. Legal scope of fiscal analysis. PARD contends the examiner committed legal error by too narrowly construing the portion of PCC 17.135.070(11) that requires site plan approval be based upon "the fiscal impact of the proposed development on the city." PARD asserts that the term "city" is ambiguous and should be broadly construed to also include fiscal impact on residents and businesses. PARD concludes this broader reading is consistent with the very purpose of the site plan ordinance and the City's comprehensive plan. We disagree.
For site plan approval, PCC 17.135.070(11) requires the City to assess "the fiscal impact of the proposed development on the city." The zoning code states in PCC 17.05.020 that "[t]he following definitions shall be used in the interpretation and Page 22 administration of this Title." The code then defines "city" as "the city of Pullman, Washington." PCC 17.05.020(29). The term "city" is thus not ambiguous because its meaning can be derived from the ordinance and accompanying definition alone. Spokane Research Def. Fund v. City of Spokane, 96 Wn. App. 568, 574, 983 P.2d 676 (1999). Ordinances with plain meanings are not subject to construction. Sleasman v. City of Lacy, 159 Wn.2d 639, 646, 151 P.3d 990 (2007).
Moreover, as CLC and the City point out, PCC 17.135.070(6) requires that a site plan decision be based upon "protection of neighboring owners, uses, and properties from adverse effects of the proposal." Thus, to construe the word "city" to include other residents and other businesses would render subsection (11) duplicative of subsection (6) and therefore meaningless. Cox v. Helenius, 103 Wn.2d 383, 387-88, 693 P.2d 683 (1985). This was obviously not the intent of the ordinance when the legislative body could have simply more broadly defined the fiscal impact requirement. See Sleasman, 159 Wn.2d at 646.
PARD's citation to the following portion of the overall purpose of the site plan requirements is also unavailing:
The purpose of the Chapter is . . . to assure that a proposed development is designed in a manner which will not be detrimental to the public health, safety, and general welfare or to adjacent properties.
PCC 17.135.010. But PARD cites to nothing that precludes the achievement of these ideals merely because the subsection (11) definition of "city" is limited to the municipality itself.
Similarly, PARD's citation to the comprehensive plan language pertaining to "Pullman's Future Vision" is inapposite. The cited passage states:
Local residents, businesses, landowners, and government officials are committed to the long-term health and stability of our community, its residents, and the environment that sustains them. No decision is made today without consideration of its effect on the community tomorrow. In this way, the high quality of life our citizens enjoy is maintained for future generations.
Br. of Appellant (Attachment B, ch. 4, at 4).
PARD points to no conflict between this language and the zoning code, and in particular, the site plan requirements in PCC 17.135.070 as a whole. But even if there were a conflict, the language of the zoning code — here the unambiguous definition of "city" in subsection (11) — would prevail. Cingular Wireless LLC v. Thurston County, 131 Wn. App. 756, 769, 129 P.3d 300 (2006).
We conclude that PCC 17.135.070(11) requires only that the City consider the fiscal impacts of the project on the City as a municipal corporation and not on other businesses. There is no error.
3. Comprehensive Plan
PARD contends the examiner erred in determining that the City adequately Page 24 considered the goals, policies, and standards of its comprehensive plan under PCC 17.135.070(1). PARD cites to a passage in chapter five of the "Land Use Element" of the comprehensive plan, which first recognizes that not all commercial development will occur downtown and then states:
In addition, commercial development in other, well-defined areas such as Bishop and Professional Mall Boulevards will continue to develop. This commercial development should complement, rather than compete with, downtown Pullman.
Br. of Appellant (Attachment B, ch. 5, at 5). PARD further cites to Comprehensive Plan Policy LU 5.1, which states a goal to maintain the central business district as the key commercial district to serve Pullman and other communities.
According to PARD, the above language requires an assessment of Wal-Mart's impact on other retailers in the City. PARD says that despite making elaborate findings (Nos. 25, 27, 93-97) that the Wal-Mart project will have a significant adverse impact on downtown Pullman, the examiner entered conclusion of law 16(e) that the project complies with the central economic development policies of the comprehensive plan. PARD contends this conclusion lacks evidentiary support and is clearly erroneous. We disagree.
First, as reflected in conclusion of law 15, a comprehensive plan is no more than a general policy guide. Weyerhaeuser, 124 Wn.2d at 44. And the City's comprehensive Page 25 plan states at chapter 1, that it serves as a reference and is not to be construed as a direct restriction on property rights or land uses. Thus, to the extent there is any inconsistency between the zoning for the Wal-Mart project site and the comprehensive plan, the zoning code controls even though it references the comprehensive plan. Id. at 43; Hansen v. Chelan County, 81 Wn. App. 133, 138, 913 P.2d 409 (1996).
Further, conclusion of law 13 states that Mr. Workman considered all site plan application review factors and that PARD produced no evidence to the contrary. Indeed, it is evident from the record that the City did thoroughly consider all site plan requirements, including the comprehensive plan, as it imposed 35 conditions on the site plan approval. The examiner specifically found, after thoroughly summarizing PARD's position regarding Wal-Mart's supposed negative impact on the community and its businesses, that those issues have remedies in other forums or in the social conscience of Wal-Mart or its customers. Likewise, Mr. Workman testified that the City does not require a study of fiscal impacts associated with business practices in site approval.
Next, as detailed in conclusion of law 16(a)-(h), the examiner recognized that while the Wal-Mart project is permitted outright and the zoning code controls over the comprehensive plan, the project is nevertheless consistent with the comprehensive plan in
several respects. PARD challenges only paragraph (e), which states: Substantial evidence including the economic impact study completed by Johnson Gardner, an independent land use economics consultant, and testimony by Mr. Bill Reid [of Johnson Gardner] has shown that the proposed Project would not have a significant adverse impact on downtown Pullman and existing commercial facilities.
CP at 119.
This conclusion finds ample support from findings of fact 88-92. As summarized, these findings from Mr. Reid's study of the economic and fiscal impact of the project on the City state that only 12 percent of downtown businesses could be characterized as potentially competing with Wal-Mart, and all businesses in the City are already competing with other big-box stores in Moscow, Idaho. Mr. Reid concluded that approximately $92 million in retail sales is lost annually to other communities, resulting in a sales tax leakage that a Pullman Wal-Mart store would reduce. Mr. Reid also concluded that Wal-Mart would create 400 new jobs in Pullman with no detrimental effect on wages. He opined that negative economic impact concerns of isolated rural Midwest and Southern communities would not occur in Pullman because it is a growing and stable community.
On the other hand, PARD's cited findings of fact 25 and 27 are merely a recitation of the several particular businesses on Main Street and Grand Avenue that Mr. Reid recognized as selling some of the same products as Wal-Mart. There is no finding of negative impact to these stores.
Finally, PARD's cited findings of fact 93-97 present PARD's recitation of perceived weaknesses in Mr. Reid's analysis, viewed in a light most favorable to PARD. These findings at most reflect information aimed at impeaching the validity of Mr. Reid's conclusions, but do not indicate that the City failed to consider its comprehensive plan when approving the site plan.
We conclude that the City and CLC met their threshold burden under PCC 17.135.070. PARD has failed its burden under LUPA of showing insufficient evidence or legal error.
B. DNS UNDER SEPA
Appeals under SEPA are appeals of the governmental action together with its accompanying environmental determinations. RCW 43.21C.075. The clearly erroneous standard applies to the review of substantive SEPA decisions. Cougar Mountain Assocs. v. King County, 111 Wn.2d 742, 747, 765 P.2d 264 (1988); Indian Trail Prop. Owner's Ass'n v. City of Spokane, 76 Wn. App. 430, 441, 886 P.2d 209 (1994). A decision is clearly erroneous only if the court is "`left with the definite and firm conviction that a mistake has been committed.'" Cougar Mountain, 111 Wn.2d at 747 (internal quotation marks omitted) (quoting Polygon Corp. v. City of Seattle, 90 Wn.2d 59, 69, 578 P.2d 1309 (1978)).
SEPA requires that an agency make a threshold determination whether to require preparation of an Environmental Impact Statement (EIS) before taking any major action.
RCW 43.21C.031; WAC 197-11-310(2),-330. In making a threshold determination, the responsible official must (1) review the environmental checklist and independently evaluate the responses of the applicant, (2) determine if the proposal is likely to have a "probable significant adverse environmental impact," and (3) consider mitigation measures that the applicant will implement as part of the proposal. WAC 197-11-330(1)(a)-(c); see also WAC 197-11-060(4)(a)-(c). "Significance" is defined as "a reasonable likelihood of more than a moderate adverse impact on environmental quality." WAC 197-11-794.
If the responsible official determines there will be no probable significant adverse environmental impacts, the lead agency issues a DNS. WAC 197-11-340(1). SEPA also permits a mitigated DNS, which allows an agency to consider mitigation measures that the applicant will implement. WAC 197-11-350. It is a determination that, as mitigated, the proposal will not have a significant adverse environmental impact. An agency's decision not to require an EIS is accorded substantial weight. RCW 43.21C.090; see Indian Trail, 76 Wn. App. at 442. But decisions made without an adequate, complete SEPA review are invalid. Leschi Improvement Council v. Wash. State Highway Comm'n, 84 Wn.2d 271, 279, 525 P.2d 774 (1974).
PCC 16.39.170(2)(e) states that the appellant shall have the burden of proof in a SEPA appeal, and the determination of the responsible official shall be presumed prima facie correct and shall be afforded substantial weight. Thus, to meet its burden of proof under LUPA and SEPA, the appellant must present actual evidence of probable significant adverse impact of the project. Boehm v. City of Vancouver, 111 Wn. App. 711, 719, 47 P.3d 137 (2002); Moss v. City of Bellingham, 109 Wn. App. 6, 23, 31 P.3d 703 (2001).
The City has expressly adopted all of the SEPA provisions of the Washington Administrative Code. PCC 16.39.010.
PARD challenges the DNS on two grounds: (1) the TIA is inadequate to comply with SEPA, and (2) the City failed to analyze urban blight issues as required by SEPA.
1. The TIA
PARD contends the examiner erred in determining that the City adequately analyzed traffic/pedestrian impact under SEPA prior to issuing the DNS. PARD incorporates its earlier contentions with respect to claimed inadequacy of the TIA for site plan permit purposes. PARD additionally contends the TIA is inadequate under SEPA for failure to consider the incremental impact of Wal-Mart's traffic to pre-existing traffic conditions in locations not studied in the TIA. Norway Hill Pres. Prot. Ass'n v. King County Council, 87 Wn.2d 267, 552 P.2d 674 (1976); WAC 197-11-330(3)(a). PARD further contends that SEPA requires Wal-Mart to disclose its proprietary information with regard to trip generation rates and the examiner provided no explanation for relieving Page 30 CLC and the City of this duty. WAC 197-11-080(3)(b). Finally, PARD asserts that assessing pedestrian safety is a SEPA requirement that was not met in this case. WAC 197-11-444(2)(c)(v), (vi). We reject all of these arguments.
PARD is correct that the threshold determination whether an EIS is necessary requires taking into account that the proposal may have a significant environmental impact in one location but not in another location. WAC 197-11-330(3)(a). Norway Hill states that at least two relevant factors apply to the significance determination: (1) the extent to which the proposal will cause adverse environmental effects in excess of those created by existing uses in the area, and (2) the absolute quantitative adverse effects of the proposal, including cumulative harm that results from the proposal's contribution to existing adverse conditions or uses in the affected area. Norway Hill, 87 Wn.2d at 277.
But as discussed supra, the evidence establishes that CLC and the City met the threshold burdens so as to overcome all of PARD's allegations of failure to adequately estimate trip generation, address Saturday traffic, and study particular intersections that PARD says will suffer substantial impact. As reflected in conclusion of law 21, PARD did not enter into the record any evidence showing that vehicular or pedestrian circulation would be negatively impacted at locations not studied in the TIA. In contrast, the City, the WSDOT, and the independent traffic expert Mr. Brown approved the scope of the TIA and determined that PARD's demand for an expanded scope of study was Page 31 unwarranted. The examiner correctly concluded that the City, as lead agency, properly exercised its right to determine the scope of a traffic study. See WAC 197-11-335 (lead agency given deference in determining scope of information needed for SEPA determination).
Further, conclusion of law 23 explains that conditions imposed as part of the project will properly mitigate traffic impact. Moreover, only the traffic impacts proven to be caused by the Wal-Mart project may be included in mitigating conditions, and PARD submitted no evidence that the mitigation requirements imposed would be inadequate. See Dolan v. City of Tigard, 512 U.S. 374, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994) (city's required conditions must be roughly proportional to the impacts of the proposed development); Benchmark Land Co. v. City of Battle Ground, 146 Wn.2d 685, 695, 49 P.3d 860 (2002) (required improvement from developer must be directly related to traffic generated by the project).
In fact, the examiner's decision upholding the DNS was also expressly subject to the mitigation measures discussed in finding of fact 49 and conclusions of law 19A and 19B. Finding of fact 49 recites the suggested traffic mitigation measures in the TIA with respect to two intersections likely to fail acceptable level of service requirements. Those intersections are Bishop Professional Mall, and Bishop Fairmount. In relation to both SEPA and site plan approval, conclusions of law 19A and B then reflect even more stringent traffic mitigation requirements than those proposed in the TIA:
The suggested TIA measures stated in finding of fact 49 include traffic calming measures and signage discouraging cut-through traffic on Harvest; a bus pullout on Bishop; a traffic signal and turn lane at the Bishop Harvest intersection; extension of Fairmount to Grand and re-striping on Bishop and Fairmount; re-striping at the Bishop Professional Mall intersection; and a 20 percent contribution by Wal-Mart to a future traffic signal at Fairmount Bishop.
The TIA identifies two intersections which are likely to fail at any level of service suggested by even the lowest suggested trip generation levels which require further mitigation or the imposition of additional conditions as follows:
A. The intersection of Bishop Boulevard and Professional Mall Boulevard, with the participation of the Wal-Mart to an extent to be determined by the Public Works Director, must be improved with a 2-phase actuated signal and separate right turn only lanes . . . The existing condition for this intersection of modified stripping [sic] remains as a required condition of the proposal.
B. The traffic signal at Bishop Boulevard and Fairmount, with the participation of Wal-Mart, shall be operational prior to a certificate of occupancy or use of any part or portion of the proposed Supercenter being issued for the proposal. Any contingency regarding funding of the improvement is deleted and completion of the signalization is a required condition of approval. The level of participation of 20% by Wal-Mart is not proportional to the impact to that intersection caused by the proposal. The Public Works Directory [sic] may determine the level of participation of Wal-Mart recognizing that the road system of the City of Pullman, and other property owners, may be potentially benefited. This condition further recognizes that signalization will promote a safer intersection.
CP at 121.
Conclusion of law 24 states that the TIA reasonably forecasts the project's possible impacts and environmental consequences, and that the TIA is technically adequate and appropriate for the project. Finally, conclusion of law 31 states that the Page 33 project, as mitigated, does not result in a significant environmental impact requiring the preparation of an EIS. Again, PARD has provided no evidence to the contrary.
With respect to Wal-Mart's purportedly withheld proprietary information, conclusion of law 18 states:
The TIA prepared by [CLC] may underestimate the number of vehicle trips generated by the proposal to an unknown extent but which information is more likely known to Wal-Mart, but which is claimed proprietary information. The decision to construct the proposal at its current location would necessarily include information from which anticipated traffic impacts could be more accurately identified with additional information known to Wal-Mart rather than to be based on standards utilized nationally. Local modifications of traffic standards used nationally are recognized.
CP at 120-21.
In other words, as previously discussed, the ITE codes used in the TIA were deemed adequate for analysis here. Moreover, no one asked Wal-Mart to provide proprietary information and the examiner made no finding that Wal-Mart must disclose any. In this situation, PARD's cited SEPA regulation, WAC 197-11-080(3)(b) (agencies may proceed in the absence of vital information when relevant to adverse impacts is important to the decision and means to obtain it are speculative or unknown), is inapposite because any proprietary information related to store visits has been deemed not vital for the threshold DNS determination.
Finally, PARD's contention that a pedestrian safety analysis is required in this Page 34 case by WAC 197-11-444(2)(c)(v) and (vi) also misses the mark. The cited subsections merely state that people circulation and traffic hazards are defined elements of the environment to consider during actual preparation of an EIS. Since no EIS is required here, the regulation does not apply.
We conclude that PARD has failed its burden of showing that the City did not adequately address traffic/pedestrian issues under SEPA before issuing the DNS.
2. Urban Blight
PARD contends the examiner erred in concluding there was no credible evidence that urban blight will result from the Wal-Mart project and that no economic competition study was required by SEPA. PARD insists that SEPA requires the City to conduct a specific analysis of whether the project's economic impact on downtown businesses will result in urban blight, and the City failed this burden. Wenatchee Sportsmen, 141 Wn.2d at 176; WAC 197-11-030(2)(c). PARD contends it presented substantial evidence of probable urban blight that is specific to downtown Pullman businesses and that meets SEPA's definition of significance. The arguments lack merit.
Economic competition impact is not, in and of itself, an element of the environment under SEPA. Indian Trail, 76 Wn. App. at 444. SEPA does not require the study of economic competition unless the probable effect of competition is urban blight such that the built environment is affected. Id.; W. 514, Inc. v. County of Spokane, 53 Wn. App. 838, 847-48, 770 P.2d 1065 (1989). Conclusions of law 10 and 25 reflect these principles.
PARD cites to finding of fact 71, which extensively summarizes national studies of the alleged social and economic evils of Wal-Mart practices that force other businesses to close. The result is empty buildings that are difficult to rent, thus creating blight and decay in communities. This urban blight also occurs when Wal-Mart cannibalizes its own stores and leaves its own large vacant buildings — some 400 nationally at any given time. Wal-Mart already operates a store in nearby Moscow and is planning another large store there.
But again, PARD fails to point out that the examiner specifically rejected all of this evidence reflected in finding of fact 71 (and its associated expert testimony) as not presenting any credible evidence that the proposed Wal-Mart would probably create economic blight in Pullman. And there is no evidence in the record that the proposed Wal-Mart is likely to have a significant adverse impact on the physical environment in downtown Pullman. The fact that some identified local businesses will compete with Wal-Mart does not support a conclusion of economic blight. The examiner was entitled to reject PARD's generalized and speculative evidence that what has occurred in other locales may occur in Pullman. W. 514, 53 Wn. App. at 847. PARD has failed its burden under SEPA to demonstrate a probable significant impact on the built environment.
We conclude the examiner did not err under the SEPA standards in upholding the DNS.
The superior court's order upholding the examiner's decisions as to both the site plan permit approval and the DNS is affirmed.
A majority of the panel has determined that 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.
Sweeney, J., and Thompson, J. Pro Tem., concur.