Nisqually Delta Assoc., Resp V. City Of Dupont, Apps ( 2022 )

Filed
Washington State
Court of Appeals
Division Two
March 29, 2022
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
NISQUALLY DELTA ASSOCIATION, No. 54893-3-II
Respondent,
v.
CITY OF DUPONT, UNPUBLISHED OPINION
Respondent,
DUPONT INDUSTRIAL PARTNERS, LLC,
Appellant.
CRUSER, P.J. — DuPont Industrial Partners LLC (the Partners) sought a permit from the
city of DuPont to build a warehouse on their property, which is located on historic land. After
review pursuant to the State Environmental Policy Act (SEPA), ch. 43.21C RCW, the city initially
recommended approval of the proposal and issued a mitigated determination of nonsignificance
(MDNS). Nisqually Delta Association (the Association) challenged both the permit and the
MDNS, and the case was heard before a city hearing examiner. The hearing examiner denied the
permit but approved the MDNS. The Association and the Partners cross-appealed the hearing
examiner’s decision to the superior court, which affirmed the denial of the permit but reversed the
examiner’s decision on the MDNS. The Partners appeal the invalidation of the MDNS.
No. 54893-3-II
Pursuant to this court’s General Order 2010-1,1 the Association was responsible for
opening briefing and oral argument on appeal. The Association asserts that (1) the Partners’ failure
to appeal the permit denial deprives this court of jurisdiction to hear the MDNS appeal; (2) the
hearing examiner erroneously applied the DuPont Municipal Code protecting the historic land; (3)
the hearing examiner erred in its analysis of the National Historic Preservation Act, Pub. L. No.
89–665, 80 Stat. 915 (1966); the hearing examiner erred in limiting the SEPA issues that the
Association raised at the hearing; (5) the MDNS is clearly erroneous; and (6) the Association is
entitled to attorney fees on appeal.
We hold that this court does not have jurisdiction to hear the MDNS appeal. Accordingly,
we dismiss the Partners’ appeal. We also award attorney fees to the Association.
FACTS
A. Historical Significance of the Property
The Partners sought approval from the city of DuPont for the construction of a warehouse.
The land on which the Partners wished to build their warehouse is known as Lot Y. This land is
within the traditional territory of local Indigenous peoples, such as the Nisqually Tribe and the
Puyallup Tribe. The area is rich in historical significance, including, relevant to this appeal, the
Methodist Episcopal Mission site (the Mission site).
The Mission site once held the first American settlement on Puget Sound. In 1834, the
Mission and its school were founded to convert the local Indigenous communities to Christianity.
The Mission buildings were constructed in 1839, and missionary services began in 1840. The site
1
Gen. Order 2010–1 of Division II, In Re: Modified Procedures For Appeals Under The
Administrative Procedures Act, Chapter 34.05, and Appeals Under the Land Use Petition Act,
Chapter 36.70C RCW (Wash. Ct. App.), https://www.courts.wa.gov/appellate_trial_courts/.
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held several historic events within the region, such as the first Independence Day celebration, the
first wedding of U.S. citizens, and the first U.S. child born. Ultimately, “[t]he Mission was not
successful, was abandoned in 1842, and later destroyed by fire.” Clerk’s Papers (CP) at 984.
American settlers at the Mission site continued to use the land for agriculture. The Mission site
was commemorated with a historical marker in the 1920s.
In 1904, the 9th U.S. Cavalry Buffalo Soldiers bivouacked in the area for three months,
where they trained and practiced mock battles. The 9th U.S. Cavalry was an all-Black regiment
and was one “of the most highly decorated units in American military history.” CP at 2312. The
soldiers joined five other units, leading to “the largest military gathering on the West Coast up to
that time” and the creation of present-day Joint Base Lewis-McChord. Id. at 1881. The Mission
site was in the middle of the campground.
B. Subsequent Land Ownership and Proposed Warehouse Development
In 1906, the DuPont Company established the DuPont Powder Works on the land
containing these sites. The DuPont facilities included an explosives manufacturing plant, a
company town, docks along the shoreline, and a railroad. There was “extensive land disturbance”
caused by the construction and demolition of buildings, construction of roads and the railroad, and
frequent explosions. 2 Id. at 975. DuPont Powder Works closed in 1976, and the property was
purchased by the Weyerhaeuser Company.
Weyerhaeuser entered into several agreements for development on the property, including
a “Memorandum of Agreement” with the city, the Association, and other citizen groups that
2
It is not clear exactly when, but the historical marker was removed from the Mission site at one
point and placed in a warehouse “for its protection.” CP at 2079. It was returned to the site
sometime later.
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wanted to preserve portions of the property and form a historic district. Under this agreement, the
Weyerhaeuser Real Estate Company would support the listing of the property in the National
Register of Historic Places on certain conditions, including the ability to develop on “all
developable portions of the Property.” Id. at 2494. The agreement also provided an option for the
Nisqually Point Defense Fund to purchase the Mission site and an Interpretive Center Site, though
certain details were left to be determined, such as “actual location of sites and size.” Id. The
agreement was incorporated by reference into the “City of DuPont Comprehensive Plan” as
encouraging “identification, protection, preservation and or restoration of cultural resource sites
of documented significance.” Id. at 3768. Apparently, this purchase never took place, and the
Partners now own the parcel of land containing Lot Y.
The Partners’ project proposal included a dedication of land and a right of way for the city
to develop a commemorative area open to the public and visible from the Sequalitchew Creek
Trail. This area would include commemorative signage, benches along the trail, and a replica
Methodist Mission schoolhouse. In addition, the marker commemorating the Mission site would
be relocated into the historical commemorative area “where it can be easily viewed from the trail.”
Id. at 2281.
The Partners retained Parus Consulting, Inc. to conduct an archaeological survey to provide
“cultural clearance” for the area of proposed development (the Parus Report). Id. at 970. The Parus
Report concluded that “the potential for discovery of buried archaeological materials, features or
deposits by implementation of this project is considered low.” Id. at 1002.
The city of DuPont recommended approval of the permit and issued an MDNS outlining
the commemorative area.
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C. Hearing and Examiner’s Decision
The Association challenged both the permit approval and the MDNS. At the hearing,
several archaeologists testified as to the accuracy of the marker identifying the Mission site. Guy
Moura discussed that, in 1989, he found brick fragments near the marker, which he believed to be
from the chimney from the Mission schoolhouse. Based on this finding, Moura concluded that the
marker established an accurate location of the Mission site. Dimitra Zalarvis-Chase testified for
the Partners. Based on her reading of the Parus Report and the lack of evidence at the sites, she
concluded that the marker may not accurately locate the Mission site. “Ms. [Zalarvis]-Chase noted
that the site had already been exhaustively excavated meaning that the materials, even if they were
there, would already be so seriously diminished that they would not offer significant historical
resources.” Id. at 29-30.
The hearing examiner concluded that “[t]he proposal will not create significant adverse
impacts to cultural/historical resources.” Id. at 27. This was based on the examiner’s conclusion
of law regarding DuPont Municipal Code (DMC) 25.80.030, which prohibits structures within 50
feet of historical markers. The hearing examiner explained that DMC 25.80.030 was “ambiguous
as to whether and where a marker can be relocated,” and the examiner ultimately concluded that
the provision allowed for the relocation of the marker. Id. at 38.
However, the hearing examiner denied the Partners’ permit request due to violation of a
different code provision that prohibited a warehouse from abutting a main road. Id. at 17 (“Beyond
the compliance problem with DMC 25.45.030(17), the project otherwise complies with all
applicable development standards and would be approved.”). The city issued a notice of decision
based on the hearing examiner’s decision. The City indicated that the permit was “denied because
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the proposed warehouse use abuts a main road.” Id. at 14. However, “the SEPA MDNS issued by
the City is sustained subject to revisions . . . as provided in the decision.” Id.
D. Appeal
The Association and the Partners cross-appealed the hearing examiner’s decision to the
Pierce County Superior Court. The superior court affirmed the denial of the permit and reversed
the MDNS decision, stating:
The Hearing Examiner’s affirmance of the City of DuPont’s “mitigated
determination of non-significance” under SEPA (the MDNS) was based in part on
an incorrect interpretation of DMC 25.80.030. DMC 25.80.030 protects the
designated cultural resources site identified as the “Site of Methodist/Episcopal
Mission” in DMC 25.80.020(1)(c). That site is identified by the current location of
the Mission Marker. Accordingly, the MDNS relies on an error of law and clearly
erroneous application of law to facts. The MDNS is INVALIDATED and with
respect to this issue only the appeal of Nisqually Delta Association is GRANTED.
Id. at 4409. This is the only portion of the superior court order that the Partners appealed.
DISCUSSION
I. STANDARD OF REVIEW
A. SEPA
“Under SEPA, before a local government processes a permit application for a private land
use project, it must make a ‘threshold determination’ of whether the project is a ‘major action
significantly affecting the quality of the environment.’ ” Anderson v. Pierce County, 86 Wn. App.
290, 300-01, 936 P.2d 432 (1997) (quoting RCW 43.21C.030(2)(c)). When determining whether
a proposal will significantly impact the quality of the environment, the SEPA responsible official
shall take into account whether the proposal “[c]onflict[s] with local, state, or federal laws or
requirements for the protection of the environment.” WAC 197-11-330(3)(e)(iii). If the proposal
is “ ‘likely to have a probable significant adverse environmental impact,’ ” the SEPA responsible
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official issues a determination of significance and an environmental impact statement must be
prepared. Anderson, 86 Wn. App. at 301 (quoting WAC 197-11-330(1)(b)). An environmental
impact statement is not required when a determination of non-significance is issued. Id.
An MDNS “involves changing or conditioning a project to eliminate its significant adverse
environmental impacts.” Id.; WAC 197-11-350. An MDNS is reviewed under the clearly
erroneous standard. Anderson, 86 Wn. App. at 302. “A finding is ‘clearly erroneous’ when,
although there is evidence to support it, the reviewing court on the record is left with the definite
and firm conviction that a mistake has been committed.” Id.
B. LUPA
LUPA governs judicial review of land use decisions. Ch. 36.70C RCW; Wells v. Whatcom
County Water Dist. No. 10, 105 Wn. App. 143, 149, 19 P.3d 453 (2001). “We stand in the shoes
of the superior court and review the hearing examiner’s action de novo on the basis of the
administrative record.” Wells, 105 Wn. App. at 150. The party seeking relief must establish that at
least one of the standards listed in RCW 36.70C.130(1) has been met. RCW 36.70C.130(1); Wells,
105 Wn. App. at 149.
“Under LUPA a court reviews the decision to issue an MDNS under any one of the six
standards set forth in RCW 36.70C.130(1).” Wenatchee Sportsmen Ass’n v. Chelan County, 141
Wn.2d 169, 176, 4 P.3d 123 (2000). Where, as here, the issue before the court is the proper
interpretation of the law, the standard is whether the interpretation was erroneous. RCW
36.70C.130(1)(b).
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II. SEPA’S LINKAGE REQUIREMENT
The Association argues that the Partners’ failure to appeal the underlying government
action—the denial of the permit—deprives this court of jurisdiction to hear the SEPA appeal. We
agree.
A. LEGAL PRINCIPLES
RCW 43.21C.075(6)(c) states, “Judicial review under this chapter shall without exception
be of the governmental action together with its accompanying environmental determinations.”
This is known as SEPA’s linkage requirement, and it stands for the proposition that there must be
a final agency decision before a court may review an environmental determination. Int’l Longshore
and Warehouse Union, Local 19 v. City of Seattle, 176 Wn. App. 512, 519, 309 P.3d 654 (2013)
(“This means that until an agency has taken final action on a proposal, judicial review of an
agency's compliance with SEPA may not occur.”); State ex rel. Friend & Rikalo Contractor v.
Grays Harbor County, 122 Wn.2d 244, 250-51, 857 P.2d 1039 (1993).
Washington courts have previously turned to Professor Richard Settle, “a recognized
authority on SEPA,” for guidance on this rule as it relates to timing for appeals under RCW
43.21C.075. Waterford Place Condo. Ass’n v. City of Seattle, 58 Wn. App. 39, 45, 791 P.2d 908(1990); see also Grays Harbor County, 122 Wn.2d at 250-51. Professor Settle has previously
explained that “the purposes of the linkage requirement are to: preclude judicial review of SEPA
compliance before an agency has taken final action on a proposal, foreclose multiple lawsuits
challenging a single agency action[,] and deny the existence of ‘orphan’ SEPA claims unrelated to
any government action.” Grays Harbor County, 122 Wn.2d at 251.
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B. ANALYSIS
The Association argues that we cannot hear the Partners’ appeal because the Partners are
only challenging the SEPA determination and not the permit denial. Although the facts of this case
are unique, Boss v. Department of Transportation, 113 Wn. App. 543, 54 P.3d 207 (2002), is
illustrative. Boss involved the development of a new Tacoma Narrows Bridge. Boss, 113 Wn. App.
at 546. Boss, the appellant, filed a SEPA challenge to the adequacy of the environmental impact
statement for the project and its lack of mitigation measures. Id. at 547. The superior court
dismissed Boss’ petition on summary judgment in part because Boss did not challenge the
underlying governmental action, the approval of the bridge project. Id. On appeal to this court, the
Department of Transportation again argued Boss’ challenge should be dismissed because his
failure to challenge the underlying governmental action did not comply with RCW 43.21C.075.
Id. at 548.
We held that because the Department of Transportation based its project approval on the
environmental impact statement, Boss’ challenge to the environmental review was, in effect, a
challenge to the project approval. Id. at 550. That is, a ruling in Boss’ favor on the environmental
impact statement would have defeated the entire project approval. Thus, we held that Boss did, in
fact, challenge the underlying government action. We emphasized that appeals under RCW
43.21C.075 “ ‘must combine review of SEPA issues with the related government action.’ ” Id. at
549 (quoting Grays Harbor County, 122 Wn.2d at 249).
Conversely, the appeal of the SEPA decision in this case—the decision which allowed the
moving of the marker—is not linked to the underlying government action. This is not only because
the Partners did not appeal the denial of the permit, but also because the permit was denied for an
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entirely different reason than the issue they raise on appeal: the warehouse abutted a main road in
violation of DMC 25.45.030(17). Regardless of what we decide, the Partners still cannot obtain a
permit based on the MDNS before us. Therefore, an appeal of the SEPA issue here is an “orphan”
SEPA claim unrelated to a government action. See Grays Harbor County, 122 Wn.2d at 251.
The Partners assert that this is the only opportunity they have to appeal the marker issue
because SEPA review materials “carry on” to future projects on the same site. Br. of the Partners
at 32. However, “before a local government processes a permit application for a private land use
project, it must make a ‘threshold determination’ ” of whether the project will significantly affect
the quality of the environment. Anderson, 86 Wn. App. at 300-01 (quoting RCW
43.21C.030(2)(c)). This determination is required for any proposal constituting an “action” (as
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defined in WAC 197-11-704), unless the proposal is categorically exempt or when an agency is
acting on the “same proposal.” WAC 197-11-310(1),3 WAC 197-11-600(3).4
The Partners do not demonstrate that any new proposal they submit will necessarily be
deemed the “same proposal.” Here, any new proposal submitted by the Partners will require the
warehouse to be placed in such a way that it does not abut a main road, which means that its
location, even if only slightly, will differ. In fact, at oral argument, the Partners indicated that they
had already submitted a new proposal to comply with DMC 25.45.030(17). Therefore, the
exception for the “same proposal” does not apply. Under WAC 197-11-310, the city must make a
determination regarding the impacts of the new proposal. The city is “authorized” to use prior
environmental documents “in whole or in part” if the documents adequately address the relevant
environmental considerations. RCW 43.21C.034; see also WAC 197-11-600(4) (providing for
adopting an existing environmental document or incorporating it by reference). And “[a]n agency
may use environmental documents that have been previously prepared in order to evaluate
proposed actions, alternatives, or environmental impacts,” whether the proposals are the same or
different. WAC 197-11-600(2) (emphasis added). But nothing in these regulations requires the
city to use the same MDNS for a new proposal after a failed project.
The Partners argue, in passing, that “principles of res judicata and/or collateral estoppel”
would prevent them from appealing the marker issue in the future, with no further discussion or
3
WAC 197-11-310(1) provides:
A threshold determination is required for any proposal which meets the definition
of action and is not categorically exempt, subject to the limitations in WAC 197-
11-600(3) concerning proposals for which a threshold determination has already
been issued, or statutorily exempt as provided in chapter 43.21C RCW. A threshold
determination is not required for a planned action (refer to WAC 197-11-164
through 197-11-172).
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4
WAC 197-11-600 provides:
(1) This section contains criteria for determining whether an environmental
document must be used unchanged and describes when existing documents may be
used to meet all or part of an agency’s responsibilities under SEPA.
(2) An agency may use environmental documents that have previously been
prepared in order to evaluate proposed actions, alternatives, or environmental
impacts. The proposals may be the same as, or different than, those analyzed in the
existing documents.
(3) An agency acting on the same proposal shall use an environmental document
unchanged, except in the following cases:
(a) For DNSs, . . .
(b) For DNSs and EISs, . . .
....
(c) For EISs, . . .
(4) Existing documents may be used for a proposal by employing one or more of
the following methods:
(a) “Adoption,” where an agency may use all or part of an existing environmental
document to meet its responsibilities under SEPA. Agencies acting on the same
proposal for which an environmental document was prepared are not required to
adopt the document; or
(b) “Incorporation by reference,” where an agency preparing an environmental
document includes all or part of an existing document by reference.
(c) An addendum, that adds analyses or information about a proposal but does not
substantially change the analysis of significant impacts and alternatives in the
existing environmental document.
(d) Preparation of an SEIS if there are:
(i) Substantial changes so that the proposal is likely to have significant adverse
environmental impacts; or
(ii) New information indicating a proposal’s probable significant adverse
environmental impacts.
(e) If a proposal is substantially similar to one covered in an existing EIS, that EIS
may be adopted; additional information may be provided in an addendum or SEIS
(see (c) and (d) of this subsection).
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citation to legal authority. Br. of the Partners at 32-33. However, “[p]assing treatment of an issue
or lack of reasoned argument” does not merit our consideration. Holland v. City of Tacoma, 90
Wn. App. 533, 538, 954 P.2d 290 (1998). Accordingly, we do not address this argument.5
The Partners also argue that the marker issue is not “merely a SEPA question” because
their proposal is required to meet city code requirements as part of the city’s normal review
process. Br. of the Partners at 30-31. However, the issue before us, which relates solely to the
historical marker issue, comes directly from the MDNS and presents a question under SEPA. See,
e.g., CP at 4402 (“The Hearing Examiner’s affirmance of the City of DuPont’s ‘mitigated
determination of non-significance’ under SEPA (the MDNS) was based in part on an incorrect
interpretation of DMC 25.80.030.”). A decision from us whether to affirm or reverse the decision
of the superior court regarding the marker would, therefore, apply directly to the MDNS, a SEPA
issue. As a result, although the Partners may be correct in that their appeal presents more than a
SEPA question, we cannot separate the issue to avoid this jurisdictional barrier.
We hold that RCW 43.21C.075(6)(c) precludes our review of the Partners’ appeal.
ATTORNEY FEES
The Association requests attorney fees under RCW 4.84.370, which provides for an award
of attorney fees and costs to the prevailing party in an appeal of a land use decision. We hold that
the Association is entitled to attorney fees.
5
In the event that the Association attempts to bind the Partners to the superior court’s ruling on
the marker, nothing in this opinion affects the ability of a party to make any available equitable
arguments in future proceedings. See, e.g., Kucera v. Dep’t of Transp., 140 Wn.2d 200, 224, 995
P.2d 63 (2000) (“As SEPA itself contemplates the balancing of economic and environmental
factors, a trial court too must apply traditional equitable principles and weigh competing interests
when asked to enjoin a challenged action.”).
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A. LEGAL PRINCIPLES
RCW 4.84.370(1) provides that a prevailing party on appeal of a land use decision by a
county or city shall be awarded attorney fees and costs if “(a) The prevailing party on appeal was
the prevailing or substantially prevailing party before the county, city, or town . . . ; and (b) The
prevailing party on appeal was the prevailing party or substantially prevailing party in all prior
judicial proceedings.” A party need not prevail on the entire claim; they must simply “succeed in
some manner to ‘prevail.’ This includes jurisdictional wins.” Durland v. San Juan County, 182
Wn.2d 55, 78, 340 P.3d 191 (2014).
B. ANALYSIS
At the city level, although the MDNS was approved, the Partners’ permit was denied.
Because a party need not prevail on its entire claim, the Association was the substantially
prevailing party before the hearing examiner. In addition, the Association was the prevailing party
before the superior court. Before us, the Association has prevailed on the jurisdictional issue under
RCW 43.21C.075.
Because the Association prevailed before the city, the superior court, and this court, it is
entitled to attorney fees under RCW 4.84.370(1) in an amount to be determined by the court
commissioner.
CONCLUSION
We hold that RCW 43.21C.075(6)(c) deprives this court of jurisdiction to hear the Partners’
appeal of the superior court’s decision. Accordingly, we dismiss the Partners’ appeal. We also hold
that the Association is entitled to attorney fees in an amount to be determined by the court
commissioner.
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A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
CRUSER, P.J.
We concur:
VELJACIC, J.
PRICE, J.
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