Norway Hill Preservation & Protection Ass'n v. King County Council
Citation: 6 ELR 20796
No. No. 44015, 552 P.2d 674/87 Wash. 2d 267, (Wash., 07/08/1976)
The court reverses and remands defendant's approval of a preliminary plat for a proposed housing subdivision because it was not accompanied by an environmental impact statement prepared under the Washington Environmental Policy Act, RCW 43.21C.030(2)(c). Threshold determinations that a project's environmental effects are not significant enough to require preparation of an impact statement under the Act merit a reasonably broad standard of review. In defining the appropriate standard, it is important to consider the public policy of fully-informed decision-making promoted by the Act. The basis for responsible balancing is made between a project's benefits and its environmental impacts is a detailed impact statement. Juanita Bay Valley Community Ass'n v. Kirkland, 9 Wash. App. 59, 68, 510 P.2d 1140, 1146 (1973). Because the correctness of a non-significant-impact determination is integrally linked to the Act's mandated public policy of environmental protection, judicial review beyond that provided under the "arbitrary or capricious" standard is necessary. The court holds that the "clearly erroneous" standard, taken from RCW 34.04.130(6)(e), is thus the appropriate one for reviewing negative threshold determinations, and that such a determination can be held clearly erroneous if, despite supporting evidence, the reviewing court on the entire record can conclude "a mistake has been committed." Stempel v. Department of Water Resources, 82 Wash. 2d 109, 114, 508 P.2d 166, 169, 3 ELR 20685, 20686 (1973).
The court, pointing to City of Davis v. Coleman, 521 F.2d 661, 673-74, 5 ELR 20633, 20636 (9th Cir. 1975), construes the phrase "significantly affecting" the environment in RCW 43.21.C.030(2)(c) to mean that more than a moderate effect on the quality of the environment is a reasonable probability. In this case, the proposed development, which is concededly a major action, will cover 52 acres of currently forested land which will be subdivided into 98 lots, each with a single-family dwelling. The project will thus constitute a complete change of the use of the existing area, and certain reports indicate that the subdivision will create runoff and soil erosion problems as well. Based on these undisputed facts, the court concludes that the determination that an environmental impact statement was not required was clearly erroneous. Cf. Wyoming Outdoor Coordinating Council v. Butz, 484 F.2d 1244, 3 ELR 20830 (10th Cir. 1973). Neither the existence of nearby developments nor the imposition of environmentally protective conditions on the plat approval changes this result, since the existence of nearby land uses does not mean that a similar one will not be significant, and the imposition of conditions does not nullify, for purposes of the Act, the otherwise significant effects of a project or government action.
This subdivision project on its face involves the size and type of environmental change to which the full information requirement of the Washington Environmental Policy Act was obviously meant to apply, and an environmental impact statement should have preceded the decision to approve the preliminary plat application.
The full text of this opinion is available from ELR (8 pp. $1.00, ELR Order No. C-1090).
Counsel for Plaintiff-Appellant
Riddell, Williams, Ivie, Bullitt & Walkinshaw
4310 Seattle-First National Bank Bldg.
Seattle WA 98154
Counsel for Defendants-Respondents
Christopher T. Bayley, Prosecuting Attorney
John E. Keegan, Asst. Prosecuting Attorney
King County Court House
516 3rd Ave.
Seattle WA 98104
Philip K. Sweigert
Bogle & Gates
14th Floor, Norton Bldg.
801 Second Ave.
Seattle WA 98104
[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]