Saldin Securities, Inc. v. Snohomish County

Madsen, J.

The Snohomish County Superior Court reversed a decision and order of the Snohomish County Council requiring Petitioners to prepare a limited environmental impact statement for their land use project developments. The Court of Appeals reversed and Petitioners seek review of that decision. We affirm.

STATEMENT OF THE CASE

Petitioners, Lawrence W and Darlene I. Whitfield (Whitfield), and their family corporation, DD&L, Inc., own 34 acres of property in Snohomish County. Whitfield wants to divide the property into 54 individual lots. Petitioners, Sal-din Securities, Inc. and NADW Northwest, Inc., (Saldin) own 14.5 acres adjacent to the Whitfield property. Saldin wants to divide its property into 26 individual lots. Petitioners plan to develop and use on-site septic tank and drain-field sewage systems for their lots. Preliminary plat applications were submitted by Petitioners to the Snohomish County Department of Planning and Community Development. The Department of Planning and Community Development issued a “Mitigated Determination of Nonsignificance” (MDNS) for each proposal, concluding that, with mitigation, neither development would have a significant adverse effect on the environment. Thus, neither project would require an environmental impact statement (EIS).

Residents in the neighborhood where Petitioners’ properties are located were concerned there was no environmental report on the projects’ effects on groundwater in their area. They appealed the MDNS to the Snohomish County Hearing Examiner. The Hearing Examiner upheld the planning department’s decisions and gave prehminary approval to both plat applications.

The residents appealed the Hearing Examiner’s decision to the Snohomish County Council.¹ The Council held an evidentiary hearing focusing on possible groundwater contamination from the developments. Following the hearing, the Council vacated the determination of nonsignificance, reversed the Hearing Examiner’s decisions, and remanded the applications to the planning department for preparation of an environmental impact statement limited to the issue of groundwater contamination. The Council deferred action on Petitioners’ preliminary plat application until completion of the environmental impact statement.

Petitioners filed petitions for writ of certiorari in the Snohomish County Superior Court claiming the Council’s decision was arbitrary, capricious, and contrary to law. The petitions also included complaints for damages under RCW 64.40 and 42 U.S.C. § 1983. The court granted Petitioners’ constitutional writ of certiorari, but dismissed the claims for damages without prejudice on the ground that they were not ripe. The court concluded the Council’s decision was arbitrary and capricious and reinstated the decision of the hearing examiner.

Petitioners appealed the superior court’s decision to the Court of Appeals. The Court of Appeals reversed the decision of the trial court, finding the trial court erred granting a constitutional writ of certiorari because the project proponents failed to establish that extraordinary circumstances justified interlocutory review of the EIS decisions. Saldin Sec., Inc. v. Snohomish County, 80 Wn. App. 522, 910 P.2d 513 (1996). Petitioners sought review in this court and it was granted.

DISCUSSION

The superior court has inherent power provided in article Pv( section 6 of the Washington State Constitution to review administrative decisions for illegal or manifestly arbitrary acts. Kreidler v. Eikenberry, 111 Wn.2d 828, 837, 766 P.2d 438 (1989); Pierce County Sheriff v. Civil Serv. Comm’n, 98 Wn.2d 690, 693-94, 658 P.2d 648 (1983); Williams v. Seattle Sch. Dist. No. 1, 97 Wn.2d 215, 221, 643 P.2d 426 (1982). The fundamental purpose of the constitutional writ of certiorari is to enable a court of review to determine whether the proceedings below were within the lower tribunal’s jurisdiction and authority. Bridle Trails Community Club v. City of Bellevue, 45 Wn. App. 248, 252-53, 724 P.2d 1110 (1986). Thus, a court will accept review only if the appellant can allege facts that, if verified, would establish that the lower tribunal’s decision was illegal or arbitrary and capricious. Pierce County Sheriff, 98 Wn.2d at 693-94; Williams, 97 Wn.2d at 221. Additionally, although exercise of this inherent power is discretionary, it will not ordinarily occur if either a statutory writ or a direct appeal is available, unless the appellant can show good cause for not using those methods. Bridle Trails, 45 Wn. App. at 253; Birch Bay Trailer Sales, Inc. v. Whatcom County, 65 Wn. App. 739, 746, 829 P.2d 1109, review denied, 119 Wn.2d 1023 (1992); see also 1 Bouvier’s Law Dictionary 443, 446-47 (1914).²

The Court of Appeals found that beyond the principles cited above, “extraordinary” circumstances must exist for a court to grant a constitutional writ. For this proposition, the court cited the Division I, Court of Appeals’ opinion in King County v. Washington State Bd. of Tax Appeals, 28 Wn. App. 230, 237, 622 P.2d 898 (1981), which stated that the writ of certiorari “is an extraordinary remedy reserved for extraordinary situations.” However, the King County court’s use of the word “extraordinary” when read in context does not support an additional requirement of “extraordinary” circumstances as a prerequisite to issuance of a constitutional writ. The Court of Appeals in King County used the word “extraordinary” only to describe the nature of the statutory writ process, not the constitutional writ. Id. The court in King County did not state that “extraordinary” facts must exist before a constitutional writ may be granted. Id. at 237-38. Instead, the court explained that in a constitutional writ action, the superior court “looks initially to the petitioner’s allegations to determine whether, if true, they clearly demonstrate [the agency acted illegally or arbitrarily and capriciously],” and “[i]f they do, review should be granted . . . ."Id. at 238.

Additionally, in four decisions after its opinion in King County, Division I has never mentioned, nor implied, that “extraordinary facts” must exist before a court may grant a constitutional writ. Concerned Organized Women & People Opposed to Offensive Proposals, Inc. v. City of Arlington, 69 Wn. App. 209, 221, 847 P.2d 963, review denied, 122 Wn.2d 1014 (1993); Birch Bay, 65 Wn. App. at 745-46; Bridle Trails, 45 Wn. App. at 251-53; Dorsten v. Port of Skagit County, 32 Wn. App. 785, 788-89, 650 P.2d 220, review denied, 98 Wn.2d 1008 (1982). Thus, it is clear the Court of Appeals in King County did not intend to place an extra hurdle on the constitutional writ requirement.

Moreover, the decisions of this court do not support the conclusion that “extraordinary facts or circumstances” must exist before a constitutional writ of certiorari may be granted. Kreidler, 111 Wn.2d at 837; Pierce County Sheriff, 98 Wn.2d at 693-94; Williams, 97 Wn.2d at 221-22. We have consistently held that “any arbitrary and capricious action is subject to review,” never indicating that additional extraordinary circumstances must exist. Pierce County Sheriff, 98 Wn.2d at 694 (citing Williams, 97 Wn.2d at 221-22). In fact, in Williams this court refused to interpret the constitutional writ as requiring a violation of “fundamental rights” in addition to a decision that is arbitrary and capricious or contrary to law. Williams, 97 Wn.2d at 221-22; see also Pierce County Sheriff, 98 Wn.2d at 693-94. We find no basis in law for the conclusion that a court may not exercise its inherent power of review unless “extraordinary facts or circumstances” exist. Instead, we adhere to the long accepted rule that a court may grant a constitutional writ of certiorari if no other avenue of appeal is available and facts exist that, if verified, indicate the lower tribunal has acted in an illegal or arbitrary and capricious manner.

In this case, Petitioners seek judicial review of the Council’s determination of significance which will require them to prepare an environmental impact statement on the issue of potential groundwater contamination. As the Court of Appeals notes, interlocutory judicial review of a State Environmental Policy Act (SEPA) determination must “without exception” be coupled with review of the final action on the application. RCW 43.21C.075(6)(c). This provision serves the purpose of preventing costly litigation, delay, and piecemeal adjudication of SEPA decisions. See Richard L. Settle, The Washington State Environmental Policy Act: A Legislative and Policy Analysis § 20, at 243-44 (1996).

However, an appeal from the County’s final plat decision is not an effective remedy for the Council’s decision to require Petitioners to prepare an environmental impact statement. This provision effectively denies judicial review to project proponents of determinations of significance and “other agency SEPA determinations which might improperly increase environmental analysis burdens and project delay.” Id. at 244. These costs and delays will be incurred by the project proponent by the time the agency makes a final determination on the project and before judicial review is available. Id.

Preparing an EIS is a costly endeavor and can take years to complete. For the developer who has been ordered illegally by an administrative agency to prepare an EIS and who incurs the requisite costs and delays, review of that decision by the agency after the permitting decision has been made is “too little, too late.” Additionally, without any opportunity for judicial review, public officials have a powerful tool to delay potential projects.

On the other hand, it is clear that a determination of nonsignificance (thus not requiring an EIS) would have an adequate appeal from the final agency decision on the proposal. Opponents of a decision by an agency not to require an EIS could appeal the decision, when the ultimate decision on the permit is made, and obtain an order requiring an EIS before the development proceeds.

Regarding the potential harm to developers, the Court of Appeals stated that this impact was considered by the Legislature to be a reasonable trade-off and that courts are bound by this legislative policy. Saldin Sec., Inc. v. Snohomish County, 80 Wn. App. 522, 528-29, 910 P.2d 513 (1996). We disagree. The Legislature may not “trade off” a person’s constitutional right to a writ of certiorari. This court has repeatedly held that “the court’s ‘constitutional power of review cannot be abridged by legislative enactment.’ ” Kreidler, 111 Wn.2d at 835 (quoting State ex rel. Cosmopolis Consol. Sch. Dist. No. 99 v. Bruno, 59 Wn.2d 366, 369, 367 P.2d 995 (1962)); see also State ex rel. Hood v. Personnel Bd., 82 Wn.2d 396, 399, 511 P.2d 52 (1973) (the Legislature may decide whether a state agency may appeal from an adverse decision; however, this is “always subject to the inherent constitutional power of the judiciary to review illegal or manifestly arbitrary and capricious actions”); North Bend Stage Line v. Department of Pub. Works, 170 Wash. 217, 228, 16 P.2d 206 (1932) (appellate jurisdiction of the court is defined by the constitution and cannot be diminished by the Legislature); Bridle Trails, 45 Wn. App. at 251 n.4 (“[rjeview under the court’s inherent powers may not be impinged by the Legislature”); Dorsten, 32 Wn. App. at 789 (a statutory limitation of judicial review does not abridge a court’s constitutionally inherent power of review). Thus, this statutory limitation of judicial review cannot interfere with the court’s constitutionally inherent power of review. Because the statute does not provide effective review from the Council’s determination of significance, a constitutional writ is available if the project proponent alleges facts that, if verified, indicate the Council’s decision was illegal or arbitrary and capricious. We have defined arbitrary and capricious action as:

willful and unreasoning action, without consideration and in disregard of facts and circumstances. Where there is room for two opinions, action is not arbitrary and capricious even though one may believe an erroneous conclusion has been reached.

Pierce County Sheriff, 98 Wn.2d at 695 (quoting State v. Rowe, 93 Wn.2d 277, 284, 609 P.2d 1348 (1980)); see also Heinmiller v. Department of Health, 127 Wn.2d 595, 609, 903 P.2d 433 (1995), cert. denied, 518 U.S. 1006, 116 S. Ct. 2526, 135 L. Ed. 2d 1051 (1996); King County v. Boundary Review Bd., 122 Wn.2d 648, 680, 860 P.2d 1024 (1993).

In this case, Fetitioners have not alleged facts that indicate the Council’s determination of significance was illegal or arbitrary and capricious. Conflicting evidence was presented concerning whether the proposed developments could cause nitrate levels in the groundwater to exceed permissible levels.

Petitioners submitted a report prepared by Associated Earth Sciences, Inc. (AES) after the MDNS was issued which addressed the projects’ potential nitrate groundwater contamination. The report quoted the drinking water standard for nitrates as 10 milligrams per liter. AES concluded that nitrate concentrations resulting from the projects would remain well below this maximum standard. Dr. Dennis Goldman, a hydrologist with 20 years of field experience, concluded, however, that the soil was a much more permeable material than AES had determined. AES’s errors, Goldman testified, led to an incorrect view of the hydraulic conductivity³ value of the properties. He concluded that the projects could result in a nitrate concentration of 22 milligrams per liter.

Clearly, the Council heard evidence that, if believed, would have refuted Petitioners’ evidence that the projects would have no significant impact on groundwater. Although the superior court may have been convinced that the Council’s decision was in error this does not justify granting a constitutional writ. When a tribunal bases its conclusion on disputed evidence it has not acted in an arbitrary or capricious manner. State ex rel. Hood, 82 Wn.2d at 402. Thus, the constitutional writ should not have been granted because the Council’s determination of significance was not illegal or arbitrary and capricious.

In conclusion, we find that the decision of the superior court granting Petitioners a constitutional writ was in error and reinstate the decision of the Council.⁴

Dolliver, Smith, Johnson, and Alexander, JJ., concur.

1 Snohomish County Code 2.02.175 governs appeals to the County Council from a hearing examiner’s decision. The Council initially holds a public meeting at which it must choose one of three courses of action: (1) concur with the examiner’s decision; (2) remand to the examiner for further proceedings in accordance with the Council’s findings and conclusions; or (3) take additional evidence at a public hearing.

2 ln a discussion of the constitutional writ of certiorari and its ancient roots Bouvier stresses the longtime difficulty of stating a general rule that certiorari does not he where an appeal is provided for, referencing an annotation collecting a multitude of cases demonstrating exceptions to the rule. See Bridle Trails Community Club v. City of Bellevue, 45 Wn. App. 248, 252, 724 P.2d 1110 (1986) (citing 1 Bouvier’s Law Dictionary 443, 446-47 (1914)).

3 Hydraulic conductivity describes how easily groundwater flows in soil and determines the potential nitrate contamination.

4 Petitioners also lists in the issue section the question of whether the Court of Appeals erred in not addressing Petitioner’s cross-appeal on claims for damages under 42 U.S.C. § 1983 and RCW 64.40.040. Petitioners, however, failed to provide this court with any analysis in the argument section of the petition for review. Petitioner refers the court only to arguments made in its Court of Appeals brief in its supplemental brief before this court. Only those issues properly argued before this court will be considered for review. Burnet v. Spokane Ambulance, 131 Wn.2d 484, 492 n.2, 933 P.2d 1036 (1997) (the court refused to address issues that were not properly briefed); State v. Brett, 126 Wn.2d 136, 205, 892 P.2d 29 (1995) (the court refused to address issues based solely in incorporated arguments), cert. denied, 516 U.S. 1121, 116 S. Ct. 931, 133 L. Ed. 2d 858 (1996); BAP 10.3(a)(5) (brief must include argument in support of issues presented for review as well as citation to authority).