One Energy Development, LLC v. Kittitas County ( 2019 )

FILED
JULY 9, 2019
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
ONE ENERGY DEVELOPMENT, LLC, ) No. 36240-0-III
)
Plaintiff, )
)
IRON HORSE SOLAR, LLC, )
)
Appellant, )
)
v. )
) UNPUBLISHED OPINION
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. )
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.
No. 36240-0-III
One Energy Dev. LLC v. Kittitas County
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 1 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
1
One Energy has sold its interests to Iron Horse, leaving Iron Horse the sole real
party in interest to this appeal.
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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).
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.
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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);[2]
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 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)
2
The GMA’s rural character definition is currently codified at
RCW 36.70A.030(16).
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and KCC 15A.02.060. 3 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 4 approval of the CUP.
The written decision included 44 recommended conditions of approval. 5
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
3
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.
4
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).
5
The recommended conditions of approval were in addition to the mitigation
conditions included in the mitigated determination of nonsignificance.
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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. 6
6
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.
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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.
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
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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
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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 Wash. 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.”).
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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 Wash. 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 Wash. 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;
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(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. 7 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
Wash. 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.
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
7
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 Wash. App. 17, 37-38, 252 P.3d
382 (2011).
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“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 Wash. 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 Wash. 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
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the goals of the GMA and a county’s comprehensive plan. But they are not the same
thing as the broader 8 GMA rural character inquiry.
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.
8
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).
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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 Wash. 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 Wash. 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 Wash. 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.
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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 Wash. 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
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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
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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 Wash. 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
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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.
_________________________________
Pennell, A.C.J.
I CONCUR:
______________________________
Siddoway, J.
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APPENDIX
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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 oflron 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.
I DISSENT:
Fearing, f~ •.:r.
2
3
4 IN THE SUPERIOR COURT OF WASHINGTON
KITTITAS COUNTY
5
ONE ENERGY DEVELOPMENT LLC; and
6 IRON HORSE SOLAR LLC Cause No. 17-2-00075-5
7
Plaintiffs,
8
vs.
MEMORANDUM DECISION
9
KITTITAS COUNTY, a municipal
10 corporation; and KITTITAS COUNTY
BOARD OF COMMISSIONERS; and
11
"SAVE OUR FARMS! SAY NO TO IRON
12 HORSE!; and CRAIG CLERF AND
PATRICIA CLERF, husband and wife
13
Defendants.
14
15
16 INTRODUCTION
17
Oral argum~nt on Petitioner's Land Use Petition Act
18
19 (LUPA) appeal occurred on September 7, 2017. Timothy McMahon
20 appeared for the plaintiffs. Kenneth Harper appeared fqr the
21 Defendant Kittitas County and the Kittitas County Board of
22
Commissioners. James Carmody appeared for Defendants Save our
23
Farms and Craig and Patricia Clerf. After hearing all drguments,
24
the Court took the matter under advisement in order to review the
25
record and the pleadings submitted by all parties. The Court has
26
27 reviewed the voluminous hearing records, state statutes, county
28 code provisions, court cases, and all arguments presented.
29
1
01337
2 DISCUSSION
3
4
1. Factual Background At issue is the granting or denial
s
of a Conditional Use Permit for property owned by William Hanson,
6
7
located east of the town of Kittitas on four flat parcels of land
8 in the center of the Kittitas Valley, in the midst of farmland.
9 Currently the land is used for farming a rotation of crops,
10 including timothy hay and alfalfa. The soil is productive and
11
the adjacent and nearby neighbors are also engaged in farming.
12
The property owner proposed to lease his property to One Energy
13
Development LLC and to convert the farmland into a 47.5 acre
14
15
solar PV facility in an area which is zoned there and all around
16 it as Agriculture 20 (A-20). The project is named the Iron Horse
17 Solar LLC project. The land use designation for the property and
18 the surrounding properties is Rural Working Land.
19
The Kittitas County Code provides that a solar farm--which
20
is designated by the County code in KCC 17.61.010(9) as A "major
21
alternative energy facilityu-is allowed in the A-20 zoning area
22
only as a conditional use. KCC 17.61.020(4) (b) . 1 Thus, in order
23
24 to operate in this A-20 area, this solar PV facility must first
25
26
27 1 The term solar farm is used both in the Kittitas County Code and in the
28 application for conditional use permit. However, the facility involved is not
29 a farm. It is a facility that is non-ag~icultural and industrial in nature.
2
01338
be granted a conditional use permit for this particular property
2 by the Kittitas County Board of Commissioners.
3 During the ongoing application process for approval of the
4 facility, One Energy had to also abide by the Kittitas County
5 SEPA process as well. The SEPA review and the project permit
6
review were consolidated into one procedure, pursuant to KCC
7
lSA.01.010. The SEPA issues went before a Hearing Examiner, who
8
conducted an open record adjudicative hearing on October 20,
9
JO 2016. Public comment and testimony and submission of evidence
11 were taken at this hearing. The Hearing Examiner's job was both
12 to decide the merits of the administrative appeal of the State
I3
Environmental Policy Act threshold determination and issuance of
14
the Mitigated Determination of Nonsignificance (MONS), and to
15
make a recommendation to the Board of County Commissioners about
16
the issuance of th~ conditional use permit (CUP).
17
18 The Hearing Examiner did do this. It denied the SEPA
19 appeal, affirming the MONS, and it also recommended that the BOCC
20 approve the CUP application with conditions. The proposal had
21
engendered considerable public interest, particularly among
22
adjacent and other nearby landowners, and they participated as
23
allowed by providing letters, testimony, and various documents
24
for consideration.
25
26
After the decision and recommendation of the Hearing
27
28
29
3
01339
Examiner, the Board of County Commissioners held a closed record
hearing pursuant to KCC lSA.01.040(3) (a) to make a decision as to
2
3 the granting of the conditional use permit. The closed record
4 hearing meant that the commissioners were given the full
5 administrative record available to the Hearing Examiner, and were
6
able to discuss their questions and opinions about the various
7
issues presented, to deliberate, and eventually to issue a
8
written decision in the form of Resolution 2017-022, dated
9
February 7, 2017. The Commissioners, by a vote of two to one,
10
11 denied the Iron Horse project conditional use permit application.
12
In Resolution 2017-022, the commissioners listed the
J3
14
following substantive statements:
15
"l. Open space, the natural landscape, and vegetation would
16
not predominate over the built environment on the subject parcels
17
if the proposal were approved in this location. (RCW
18
19 36.-70A.030 (15)
20
2. The proposed use in· the proposed location is not
21
essential or desirable to the public convenience and is
22
23
detrimental or injurious to the public health, peace, or safety,
24 or to the character of the surrounding neighborhood. (KCC
25 1 7. 60A.015 ( 1) )
26
3. The proposed use in the proposed location would not
27
28 ensure compatibility with existing neighboring land uses. (KCC
29
4
01340
17.60A.015(5).
2
·4. The proposed use in the proposed location does not
3
preserve the "rural character" as defined in the Growth
4
Management Act. (RCW 36. 70A.030(15)) KCC 17.60A.015(7) (B)).
5
6
7
8 This appeal timely followed on February 23, 2017 with the
9 filing of the Land Use Petition.
10
lI
12
13
2. Standard.of Review: The Land Use Petition Act, LUPA,
14
15 provides the exclusive means for judicial review of a land use
16 decision (with some exceptions). Woods v. Kittitas County, 162
17
Wash. 2d 597 (2007)
18
RCW 36.70C.130 sets forth the standards for granting relief
19
in a LUPA appeal. The court may grant relief only if the party
20
seeking relief has carried the burden of establishing that one of
21
22 the six standards set forth in RCW 36.70C.130(1) has been met.
23 The standards are as follows:
24 (a)The body or officer that made the land use decision
engaged in unlawful procedure or failed to follow a
25
prescribed process, unless the error was harmless;
26 (b)The land use decision is an erroneous interpretation
of the law, after allowing for such deference
27 as is due the construction of the law by a local
jurisdiction with expertise;
28 (c)The land use decision is not supported by evidence that
is substantial when viewed in light of the whole record
29
5
01341
before the court;
(d)The land use decision is a clearly erroneous
application of the law to the facts;
2
(e)The land use decision is outside the authority or
3 jurisdiction of the body or officer making the
decision; or
4 (f)The land use decision violates the constitutional
rights of the party seeking relief.
5
RCW 3 6. 7 QC. 13 0 ( 1) •
6
7 One Energy,~ in its brief, argues that it can establish five
8 out of the six standards, (a) through (e). The court will
9 discuss each in this decision.
JO
11
Deference must be given to the decisions and factual
12
determinations of the local decision making authority. In this
13
14
case, the BOCC enacted in KCC lSA.01.040 (4) (d) a model in which
15 the Hearing Examiner shall make only recommendations to the BOCC
16 regarding the granting of conditional use permits. Decision
17
making authority over the granting of conditional use permits is
18
retained by the BOCC in the code. This reviewing court, thus,
19
must give substantial deference to the decisions of the BOCC, not
20
to the Hearing Examiner, which makes findings and decisions
21
22 regarding SEPA, but not the decision regarding conditional use
23 permits. Evidence, and all logical inferences from that
24 evidence, are viewed in the light most favorable to the party
25 that prevailed in front of the BOCC-in this case the defendants.
26
27
Plaintiff did not cite persuasive authority which would
28
support giving that deference to the Hearing Examiner because of
29
6
01342
a perceived or real deficiency in the Findings of Fact found by
2
the· legal decision maker, and this Court declines to find that
3 the Hearing Examiner was the highest fact finder in this case.
4
5 For the reasons set forth below, this Court finds that the
6
plaintiff has not established any of the standards necessary to
7
overrule the determination of the Board of County Conunissioners.
8
9
10
11
}2 3. Analysis:
13
Analysis of plaintiff's Statement of Issues is organized
14
around specific LUPA standards of review.
15
16 I. THIS LAND USE DECISION WAS NOT OUTSIDE THE AUTHORITY OR
17
THE JURISDICTION OF THE KITTITAS COUNTY BOARD OF COMMISSIONERS
18
UNDER RCW 36.70C.130(1) (e).
19
20
21
One Energy argues as part of standard (1) (e) that the BOCC
22
acted outside of its authority by disregarding the Hearing
23
24 Examiner's findings.· This Court disagrees.
25 The Board's role in the conditional use permit process is to
26 determine whether the applicant has met the requirements of the
27 The
conditional use using KCC 17.60A.015 Review criteria.
28
Hearing examiner did not have the authority to permit and
29
7
01343
authorize a conditional use.
2
The plaintiffs have not carried a burden of proving that the
3 land use decision was outside the authority or jurisdiction of
4 the body making the decision: in this case, the Kittitas County
5 Board of County Corrunissioners. As both petitioner and defendant
6
indicate, the SEPA review and the CUP review were consolidated
7
into one hearing, so that the public and the parties and all
8
interested persons could present testimony or submit evidence at
9
10
one time for consideration of the various land use decisions by
11 the various land use decision makers.
12 Nevertheless, as noted earlier, the Kittitas County Board of
13 Corrunissioners retained decision making authority with regard to
14
the granting or denial of Conditional use permits in KCC
15
lSA.01.040 (4) (d). The code provisions regarding this procedure
16
are set out in the relevant parts of KCC lSA.01.040:
17
18 "3. Board of County Commissioners. In -:1dciitior1 to it.s
leg i s 1 at iv e resp on s i bi 1 i t i es under v::-.: r~: r i : -. · ~:: l !:i P , t he
19 boa rd sh a 11 review and act ~ n t he f o l l:.::. w i n c; s u b j 0· c::: s
pursuant to this title:
20
a. Recorrunendat.ions of the Hearing Exarr:in1:.-::r :::r .?.L·:lrrn.:nq
21 Commission. Decision-making proces.s i-:y t.:·1\:'. beard sl·:all
c: on s i s t. o f a pub 1 i r.:: meet i n q o r rn t.":~ E t i n gs 'Ah e n<. n t ni:::'.
22 board reviews the wricten record trans~it~~~ ~r0rn t~e
Be a r i n q E 1. a rn i n E: r for Q u ;:i s i j u d i c .L:d ;c~ -::-. :: e .r s r: :·. :i th f:
23 P. 1 an n i n g Co rn.iT, i s s i on f o r Le.;; i .s l a t i v e m-::-: t t. e ~ ::- .· ·; :-: '.:: i .s s ;j es
a written decision in resolution 0r ~rdi~a~c~ to~ffi.
24
During such meeting (s), Eippropria~e ~:~?~ty -~tafr \•.·i~l
p r e s e n t t he r e co rd t. o t t~ e b o ,1 r d , f) rev 1 :r. ;--. J 1 n : o r !,i a t. .1 on
25
a s n e c es s a r y to ens u r e count y code c G n·,p l i ,~ :-, r:; f: • :·.J ,.:; n e ·.·J
26 comment or information \•Jill be allc,-..;c'..i hy ~~;(· i:.1card
du r i r1 '0 the de c i s ion - ma k i r, g pro(: es s .
27
b. App ea l s o f a dm i n i .':: t .:- a r ..i v fi :3 E FA a r: r i ,:; ~~ ·'" :: c -~ ,.~ .::· (i :~ r·. ·? c:1 , ,
28 a r;· t i o n v-J .:;. c h C· u t a r. u :1 d e r J. '/ i r; (}: p e r m .~ t .
29
8
01344
c. Open record appf-;al of administrative SE?A actions
when the board of county commissioners hears t:hE:
appeal of the associated administrative permit
2 decision.
3 d. Appeal of administrative determinat..ions such as short
plats, variances, and code interpretations.
4
e. Shoreline substantial development permits that are
5 included in consolidated permit applications that are
subject to Board review and action.
6
f. Review and provide initial local County approval,
7 denial, or approval with conditions for shoreline
conditional use permits and shoreline variances that
8
are in consolidated permits applications that are
9 subject to Board review and action.
JO 4. Hearing Examiner - Recommendation. The Hearing
Examiner shall review and make recommendations to the
11 board of county commissioners on the followinq
applications and subjects:
12
a. All Quasi judicial review processes includintj:
13
i. applications for preliminary plats
14
ii. Rezone applications.
15
b. Other actions requested or remanded by the board of
16 county corrunissioners.
17 c. Development agreements.
18 d. Condit;ional use permits pursu~nt to the zoning code,
KCC Title n
19
e. In the case of an open record appeal of
20 administrative SEPA actions when the Hearing Ezami~er
makes a recorrunendation to the board of ,::ount/
21 commissioners on the undi?r l : ,., inrd pe r:Y,i t, the Hec.:r i ng
Examiner shall decide the SEPA ap~eal.
22
23
Integration of the hearings by statute, for purposes of
24
taking evidence, does not equate to mandating the rubber stamping
25
of the Hearing Examiner's recorrunendation. This court has found
26
27 no case law requiring the BOCC to "engage with the findings and
28 conclusions produced by the Hearing Examiner," or to "refute,
29
9
01345
challenge, or reply to" the explanations of the Hearing Examiner.
Moreover, the decision facing the Hearing Examiner regarding
2
3 the SEPA appeal involved a different decision with different
4 considerations than the decision facing the Commissioners. As
5 defendants point out, the SEPA review of the MONS is a threshold
6
determination and does not bind any decision maker on a challenge
7
to the conditional use permit.
8
The Commissioners were the only decision makers who did have
9
authority or jurisdiction to make this land use decision.
10
II Standard (1) (e) has not been met.
12
13 II. THE BOARD OF COUNTY COMMISSIONERS DID NOT FAIL TO
14
FOLLOW THEIR PRESCRIBED PROCESS IN MAKING THEIR LAND USE
l5
DETERMINATION UNDER RCW 36.70C.130(1) (a).
16
17
18 The actual procedure that was followed involved an open
19 public hearing, the submission of testimony and evidence, and the
20 following consideration of all of the record of the open hearing
21
at the commissioner's closed hearing. This procedure tracked the
22
requirements set out in the code provision above. The plaintiff
23
has not identified any procedural errors in the process
24
25 undertaken in this case up to the point of the issuance of the
26 Resolution 2017-022.
27 One Energy argues that the Findings of Fact in the
28 Resolution are substantively insufficient, to the extent that
29
10
01346
there were essentially no findings of any substantive fact, which
2 they then argue is a failure to follow KCC lSA.06.020, and thus
3 a violation of Standard (1) (a). They argue that this failure to
4 make findings means that deference must be given to the Hearing
I
5
Examiner, which was the highest previous entity that made
6
specific findings, so that the Hearing Examiner became the
7
highest level finder of fact.
8
The defendant from Save our Farms counters that a finding of
9
JO facts is indeed set forth in Resolution 1017-022, that the
11 findings, even if conclusory, are sufficient as a matter of law
12 to show the bases upon which the corrunissioners made their
13
decision. The defendant adds that they were supported by
14
substantial evidence (which will be taken up in another
15
argument).
16
The defendant Kittitas County likewise argues that even if
17
18 findings lack specificity or are conclusory, appellate review may
19 proceed where the record of the oral decision enables the
20 appellate court to review the decision making process. It argues
21
that in this case, the oral record was extensive and clear as to
22
the final factors upon which the commissioners based their
23
decision. They also apparently argue that the actual criteria
24
for conditional use permit review involve subjective general
25
26 criteria which would not be conducive to empirical facts and thus
27 are admittedly not so detailed as the hearing examiner's facts,
28 though they are at least legally sufficient. While it is true
29
11
01347
that the criteria are by nature general and to an extent,
2 subjective, the court believes more specific findings are
3 possible, desirable, and preferable in such a situation.
4 However, although the court notes deficiencies in the
5 findings, this court disagrees with the plaintiff and ultimately
6
agrees with the defendant that the findings made were legally
7
sufficient.
8
9
10 The findings are embodied in Reiolution 2017-022. As
11 plaintiff points out, the bulk of the facts are procedural facts
12 and recitations of the laws/code provisions/definitions which the
13
Commissioners had to consider. The last fouf statements of the
14
resolution, quoted above, which are characterized by the
15 \
plaintiff as conclusions of law, are in reality both findings and
16
conclusions. They are the only substantive factual statements
17
18
listed, and constitute the ultimate reasons that the County
19 commissioners gave to explain their denial of the conditional use
20 permit.
21
22
This Court finds these are marginally sufficient as findings
23
of fact. They lack detail and any citation to the record itself.
24
However, broad as they are, they are sufficiently specific to
25
26 permit the Court to review the record and understand the
27 decision. The oral record of the Commissioners' deliberations
28 and decision was extensive, and the voluminous record as a whole
29
12
01348
r
I
does allow this Court to review the decision for sufficiency ·of
evidence. A common sense reading of "findings" requirements here
2
3 should prevail. Although the Court was tempted to remand the
4 case to the Board of Commissioners to set out facts with greater
5 specificity, the Court is able to understand the reasoning of the
6
commissioners without so requiring. Thus it would be a pointless
7
gesture to send the matter back for improved findings, and the
8
Court is not inclined to engage in a pointless gesture.
9
10
11 Therefore, plaintiffs have not shown that the Commissioners
12 failed to follow the prescribed process as in Standard ( 1) (a).
13
14
III. The Resolution 2017-022 is not an erroneous interpretation
15
of law under RCW 36.70C.130 (1) (b).
16
17
18 The Board found in Finding Number 4, that "the proposed use
19 in the proposed location does not preserve the rural character as
20 defined in the Growth Management Act, RCW 36.70A.030(15) and KCC
21
17.60A.015 (7) (B)." Resolution 2017-022. The definition for
22
rural character referenced in the County Code from the RCW is:
23
24
"(16) "Rural character" refers to the patterns of land use
and development established by a county in the rural element I
25
of its comprehensive plan: f
l
(a) In which open space, the natural landscape, and
vegetation predominate over the built environment;
26 (b) That foster traditional rural lifestyles, rural-ba~ed
economies, and opportunities to both live and work in rural
27
areas;
28 , (c) That provide visual landscapes that are traditionally
found in rural areas and communities;
29
13
01349
(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
2 land into sprawling, low-density development; ,
(f) That generally do not require the extension of urban
3 governmental services; and
4 (g) That are consistent with the protection of natural
surface water flows and groundwater and surface water recharge
5 and discharge areas." RCW 36.70A.030(16).
6
This standard must be reviewed after allowing for such
7
deference as is due the construction of a law by a local
8
9 jurisdiction with expertise. In this case, the Board is the
JO local decision maker and the Board is also the source of the
11 ordinance that sets out the permit criteria, referencing this
12
RCW. The Board is the governing legislative body in a largely
13
rural county, which has considerable experience in discussing and
14
determining rural character. And the Board is singly tasked with
15
deciding the issuance of Conditional Use Permits, and thus must
16
17 deal with these standards and definitions on a regular basis.
18 Some deference is due to the Kittitas County Commissioners on
19 this issue. But even if deference was not due, the Court finds
20
that the Board did not misinterpret the law.
21
22
Plaintiffs contend that the commissioners misapplied the
23
"rural character" provision of the Kittitas County Code
24
25 provision. They cite to the fact that two solar farms have
26 already been approved, and neither was appealed with respect to
27 conformance with the rural element of th~ comprehensive plan.
28 The argument appears to be that the very inclusion of solar farms
29
14
01350
l
as a conditional use in the A-20 zone declares that solar
2
facilities are consistent with rural character.
3 However, conditional uses are not the same as permitted
4 uses. Conditional uses are uses that would not be allowed in
5 specific zones unless the proponent applicant of the particular
6
use can demonstrate to the satisfaction of the finder of fact
7
that there is compliance with each of the conditional use permit
8
criteria at that particular site. Solar farms are only allowed
9
10
in A-20 as a conditional use. Therefore, each individual solar
11 farm must meet every one of the criteria for a conditional use in
12 a site specific review and evaluation before it can be granted a
13
conditional use permit. Preserving rural character is one of the
14
conditions that must be met, and the burden of showing that it
15
does so at this specific site rests with the applicant proponent
16
of the solar farm.
17
18 There is nothing inconsistent about a finding that major
19 alternative energy facilities may but also may not preserve rural
20 character as it applies to a specific project in a specific
21
place, even in the same zoning. One component of rural character
22
refers to "patterns of land use and development established by a
23
county in the rural element of its comprehensive plan: (a) in
24
which open space, the natural landscape, and vegetation
25
26
predominate over the built environment." There could be an almost
I
27 infinite number of configurations of project and siting that
28 could yield vastly different results from each other.
29
15
01351
Additionally, since compliance with the Comprehensive Plan
2
is made part of the local conditions which must be met for a
3 conditional use permit, the applicant is mandated to show
4 compliance with the Comprehensive Plan. Cingular Wireless, LLC,
5 131 Wash. App. 756 (2006). This court finds it is not error for
6
the Commissioners to consider rural character as it is discussed
7
in the comprehensive plan during the site specific analysis. The
8
definition in the Growth Management Act at RCW 36.70A.030 is:
9
10
Rural character refers to the patterns of land
11 11
use and developmetit established by a county in the
11 rural element of its comprehensive plan:
(a) In which open space, the natural landscape, and
12 vegetation predominate over the built environment;
(b} That foster traditional rural lifestyles,
13 rural-based economies, and opportunities to both live
and work in rural areas;
14 (c) That provide visual landscapes that are
traditionally found in rural areas and communities;
15 (d) That are compatible with the use of the land by
wildlife and for fish and wildlife habitat;
16 (e) That· reduce the inappropriate conversion of
undeveloped land into sprawling, low-density
17
development;
(f) That generally do not require the extension of
18
urban governmental services; and
19
(g) That are consistent with the protection of
natural surface water flows and groundwater and
20 surface water recharge and discharge areas
21
22 It is not an erroneous interpretation of law, specifically rural
23
character, to consider whether a massive industrial project of
24
this nature, encompassing 47.5 acres, eight feet high with large
25
mechanized racks to follow the sun, set in the middle of treeless
26
productive farm fields preserves rural character, interferes with
27
'28
visual compatibility of the surrounding area, or contains a built
29
16
01352
,
r
l
environment which predominates over the natural landscape.
2
Plaintiffs point out that this facility of 47.5 acres is but
3 a small percentage of agricultural land in Kittitas County. The
4 court finds that this is true and would be relevant to an issue
5 of whether overall agriculture production in the valley is
6
threatened by the project. However, in discussing rural
7
character, the relevant criteria for the Commissioners in KCC
8
17.60A.015 were:
9
IO 1. "The proposed use is essential or desirable to the
public convenience and not detrimental or iniurious to
II the public health, peace, or safety or to the
character of the surrounding neighborhood ....
12
5. The proposed use will ensure compatibility with
13 existing neighboring land uses.
14 6. The proposed use is consistent with the intent and
character of the zoning district in which it is located.
15
7. For conditional uses outside of Urban Growth Areas,
16 the proposed use:
17 A. Is consistent with the intent, goals, policies, and
objectives of the Kittitas County CompYehensive P.lan,
18 including the policies of Chapter 8, Rural and
Resource Lands;
19
B. Preserves "rural character" as defined in the G.rowt.h
20 Management Act (RCW 36.70A.020(15));
21 C. Requires only rural government services; and·
22 D. Does not compromise the long term viabili~y er
designated resource lands. ''
23
24
The relevant inquiry is the effect on the character of the
25
"surrounding neighborhood" and not necessarily the entire county.
26
The plaintiffs' suggestion that the built environment be compared
27
28 to all agricultural land in the county is misplaced.
29
17
01353
. ·'
It would be illogical to determine whether the built
2
environment predominates over open space, natural landscape and
3
vegetation by considering and comparing the footprint of a
4
development of any sort to all the agricultural land in a county.
5
6 Under that analysis, a square mile of skyscrapers in the middle
7 of one hundred square miles of farm fields would not qualify as
8 predominating over the natural landscape. Yet it would clearly
9
n.ot be in keeping with rural ·character. This is obviously not the
10
intent of the zoning codes, the Growth Management Act provisions,
IJ
or twenty plus years of other land use decisions. In determining
12
what the "built environment" factor means, this Court has found
13
14 no case setting out firmly the parameters of this inquiry, either
15 with regard to which land is to be used for comparison to the
16 built environment, or to what percentage should be considered
17
dispositive. We are left with a common sense analysis.
18
The plaintiff has not shown that the Commissioners engaged
19
in an erroneous interpretation of the law surrounding rural
20
character, under Factor 1) (b).
2r
22
23
24
25 The Resolution is supported by substantial evidence in light
IV.
26
of the entire record, pursuant to RCW 36.70C.130(1) (c).
27
28
29
18
01354
,1
Plaintiff claims under the Standard for Granting Relief, RCW
36.70C.130(1) (c), that the resolution was not supported by
2
3 evidence that is substantial when viewed in light of the whole
4 record before the court. This is a sufficiency of evidence
5 claim. Plaintiff has specifically objected in this capacity to
6
Finding 2, The proposed use in the proposed location is not
7
essential or desirable to the public convenience, and is
8
9
detri~ental or injurious to the public health, peace, or safety,
JO or to the character of the surrounding neighborhood, and also to
11 Finding 3, The proposed use in the proposed location would not
12
ensure compatibility with existing neighboring land uses.
13
14
The legal standard on any claim of sufficiency of evidence
15
16 for the corrunissioners' findings under this provision is for the
17 reviewing court to consider all evidence and reasonable
18 inferences "in the light most favorable to the party who
19
prevailed in the highest forum that exercised fact-finding
20
authority." Cingular Wireless, LLC v. Thurston County, 131 Wash.
21
App. 756 (2006)
22
Plaintiff contends again in this section that the fact-
23
24 finder is the Hearing Examiner. In fact, however, as in previous
25 issue discussions, the fact-finder entitled to the inference is
26 the Board of County Corrunissioners. The Board's role in the
27
conditional use permit process is to determine whether the
28
applicant has met the requirements of the conditional use using
29
19
01355
KCC 17.60A.015 Review criteria. The Hearing examiner did not
have that authority to permit and authorize a conditional use.
2
3 The Board in that instance does not exercise appellate
4 jurisdiction but original jurisdiction.
5
6
Under the substantial evidence standard, there must be a
7
sufficient quantum of evidence in the record to persuade a
8
reasonable person that the declared premise is true. Phoenix
9
10 Development, Inc. v. City of Woodinville, 171 Wash. 2d 820 (2011).
11 In addition, the court reserves credibility determinations for
12 the fact finder and does not review them on appeal. J.L.
13
Storedahl & Sons, Inc. v. Cowlitz County, 125 Wash. App. 1 (2004).
14
15
It is worth noting that the following analysis has nothing
16
17
whatever to do with the views of the Court itself as to the
18 beneficial nature of solar projects in general or this project in
19 particular. All parties need to remember that this Court, as a
20 reviewing appellate court cannot substitute its own judgment for
21 It was for
the judgment of the Kittitas County Commissioners.
22
the commissioners to determine whether the review criteria under
23
KCC 17.60A.015 for a conditional use permit were met. It is
24
possible for there to be substantial evidence on BOTH sides of
25
26 any issue. It is for the finder of fact, in this case the BOCC,
27 to weigh the evidence and decide the matter. The Court will
28 uphold the decision under this prong if it is supported by
29
20
01356
substantial evidence when viewed in light of the whole record.
It is also worth noting that more detailed and comprehensive
2
3 findings from the commissioners would have assisted all parties
4 and the court greatly in considering this appeal. However,
5 having found that they are sufficiently specific to at least
6
enable the court to consider the nature and amount of evidence'
7
that supports them, the court will discuss each one here.
8
9
10 Regarding Finding 2: In reviewing the evidence in the
11. record, and taking that evidence in the light most fa~orable to
12 the defendants, this Court finds there is substantial and
13
sufficient evidence for the commissioners to find the proposed
14
solar facility is not essential or desirable to the public
I5
convenience, and that it is detrimental or injurious to the
16
character of the surrounding neighborhood.
17
18 There was no evidence this Court could find in the record
19 that the facility was in fact essential to the public
20 convenience. The plaintiff instead focused on desirability.
21
There was much discussion of the beneficial nature of clean,
22
renewable energy. Both the proponents of the site and most of
23
the opponents of the site agreed in general with the beneficial
24
nature of clean energy in the abstract. However there was no
25
26 testimony to the need for placement of this project at this
27 location, other than an assertion that the energy would be sold
28 to PSE, which entity provides some, though not all, of the
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electricity in the Kittitas Valley. Evidence of the project's
2
desirability was countered by much discussion from opponents
3 about the better suitability of land in other locations in the
4 county for the purpose of a solar farm. Although there was
5 testimony in the_ record as to potential property tax revenue and
6
a projected amount of clean energy that could be added to the
7
local power grid, the commissioners were not compelled to declare
8
it desirable when weighed against the rest of the testimony in
9
10
the record.
II The solar project was described by proponents as the largest
12 solar farm in the State of Washington. Opponents to the
13
facility were concerned with the aesthetics of thousands of steel
14
racks of panels, up to eight feet high, which are supported by
15
steel pillars, driven 6 to 8 feet into the ground throughout 47.5
16
acres of prime growing land, as well as accompanied by boxes and
17
18
instruments of electrical equipment. Local persons were concerned
19 with the sixty acre parcels being surrounded by a huge chain link
20 fence, eight feet high with strands of barbed wire at the top,
21
and there were many comparisons with heavy industry or prisons.
22
The impact on the view from the surrounding neighborhood at this
23
flat mid-valley location is undeniable. The Commissioners were
24
entitled to consider the aesthetics of such a facility. There
25
was testimony from a local realtor about property values
26
27 diminishing. The commissioners were entitled to believe this
28 testimony over the assertions of the plaintiff that studies from
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some eastern states show no change in property values around
!
solar farms. Neighbors were concerned with potential issues with
2
3 weeds in a sensitive timothy hay-growing area, and there was
4 testimony about spraying. Taken in the light most favorable to
5 the county, the Comrni"ssioners were entitled to consider this
6
testimony about the difficulties with weed control and to weigh
7
that over the plaintiff's testimony about weeds. There were
8
assertions about glare, about noise, and about the impact to
9
10 wildlife from neighbors who have seen wildlife on that particular
11 property, which commissioners were entitled to believe despite
12 the SEPA findings.
13
There were pages of letters, maps, and photographs
14
discussing the local opposition to the siting of the solar
15
facility. There was testimony from numerous nearby landowners as
16
to the character of the surrounding area, and to the potential
17
18 impact of this clearly non-agricultural, heavily industrial
19 property use to the people of this particular area. It was
20 undisputed that the character of the surrounding area is
21
farmland. The site itself is prime farmland and has been farmed
22
for years. Plaintiffs suggest without evidence that this is true
23
of all A-20 property, and that the opposition was not site
24
specific; this Court finds that the opposition to the project was
25
26 completely site specific. The character of every parcel of A-20
27 land is not before the court. Only this set of parcels is before
28 the Court, and this neighborhood. Considering all facts and
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inferences in the light most favorable to the Commissioners, a
2 fair minded person could make the finding that the proposed use
3 in the proposed location is not desirable to the public
4 convenience, and is detrimental to the character of the
5 surrounding neighborhood. There was substantial evidence in the
6
record as a whole to support the finding.
7
8
This holding is consistent with the holding in Cingular
9
JO Wireless, LLC v. Thurston County, 131 Wash. App. 756 (2006), in
II which the Court found that the testimony of area residents amply
12 demonstrated that a cell tower would adversely impact views of
13
Mt. Rainier and open vistas of rural farmland. In noting that no
14
other structures pierced the natural skyline in that area, the
15
court held that the record contained sufficient evidence of
16
incompatibility with neighborhood character and adverse aesthetic
17
18 impacts to support the hearing examiner's decision in that case.
19
20 In this court's review, however, there is not substantial
21
evidence sufficient to show that the project is detrimental or
22
injurious to the public health, peace, or safety. The complaints
23
about the facility involved the nature of the area and its effect
24
on nearby farmers. Despite questions about the potential for
25
26 broken panels to leach harmful chemicals into the soil, there was
27 not sufficient evidence produced that this was a likely event.
28 The court will strike that portion of Finding and Conclusion 2.
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01360
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)
' .
2
3 Regarding Finding 3: Some opposition to the project
4 declared the site to have incompatibility with existing
5 neighboring land uses. Plaintiffs argued in their submission to
6
the County that the solar farm would have no impact on the
7
ability of neighboring farmers to continue to farm. The
8
testimony and discussion concerning special problems of weed
9
10 control around timothy hay were most germane to this finding.
11 There were also concerns expressed in the record regarding water
12 control. Although the aesthetic issues relevant to Finding 2 do
13
not impact the ability of neighbors to farm, the evidence, taken
14
in the light most favorable to the Corrunissioners, is marginally
15
sufficient for the Commissioners to make the finding and
16
conclusion that the proposed use does not ensure compatibility
17
I8 with neighboring land uses.
19
20 The plaintiff's contention that J.L. Storedahl &sons, Inc.
21
v. Clark County (143 Wn.app. 920 (2008) and Lakeside Industries
22
v. Thurston County (119 Wash. App. 886 (2004) require the adoption
23
of the Hearing Examiner's facts is incorrect. In both Storedahl
24
25 and Lakeside the Board of Commissioners sat as an appellate body.
26 In Storedahl, the Board did not follow legislatively established
27 re-zone criteria for the review of the rezone. In Lakeside the
28
Hearing Examiner had the authority to make the actual decision
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and the Board heard the appeal.
2
Plaintiff has not shown insufficient evidence under Factor
3 ( 1) (c).
4
5
6
V. Resolution 2017-022 is not a clearly erroneous application of
7
Kittitas County' ·s conditional use permit criteria from KCC
8
9 17.60A.015, as listed in standard RCW 36.70C.130{1) {d).
10 Plaintiff contends that the discussion which the
11 Commissioners indulged in regarding the general suitability of
12
solar facilities in the A-20 zone showed that they erroneously
13
relied upon the precedential effect of their decision. Plaintiff
14
correctly points out that the comprehensive plan and ensuing t
15
16
17
18
development regulations should not be revisited during a project
review.
A finding is clearly erroneous under subsection (d) when,
I
1
19 although there is evidence to support it, the reviewing court on
20
the record is left with the definite and firm conviction that a
21
mistake has been corruni tted. Norway Hill Pres.· &Prot. Association
22
v. King County Council, 87 Wash. 2d 267 (1976)
23
The commissioners did express reservations about siting such
24
25 a facility in the A-20 designation. However, it is also clear
26 from the oral record when Commissioner Jewell pointed it out,
27 that they knew they could not make their decision on this case
28 The
based on a rethinking of conditional uses in A-20 generally.
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Court is satisfied that the commissioners were analyzing this
2
particular project at this particular site rather than changing
3 the conditional use criteria when making the findings that they
4 made. The Court is not left with a definite and firm conviction
5 that plaintiff's alleged. mistake was committed.
6
7
This determination is made despite the later moratorium
8
placed on the future siting of solar PV facilities. It appears
9
JO
that the commissioners realized the question of suitability for
II large scale solar energy facilities to be placed in an A-20 zone
12 is a matter that the commissioners must take up outside any
13
particular project review.
14
15
16
CONCLUSION
17
18 For the above stated reasons, the Board of County
19 Commissioner's decision to deny One Energy Development and Iron
20 Horse Solar the conditional use permit in Resolution 2017-022 is
21
upheld. The plaintiff has failed to establish that any of the six
22
standards set forth in RCW 36.70C.130(1) have been met.
23
24
25
Dated this 3a·~ day of November, 2017.
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