Ullock v. City of Bremerton

No. 2083-11 (565 P.2d 1179, 17 Wash. App. 573) (Wash. Ct. App. May 13, 1977)

ELR Digest

A residential property owner who lived near five acres of undeveloped land challenged the city council's reversal of the city planning commission's denial of a petition to give the land a less restrictive zoning classification allowing commercial uses. The superior court affirmed the city council's action, and plaintiff appealed, contending that the environmental impact statement (EIS) prepared in connection with the rezoning action violates both the procedural and substantive requirements of the Washington Environmental Policy Act of 1971, RCW ch. 43.21C. The court of appeals rejects both contentions and affirms the lower court's decision.

Plaintiffs allege that the EIS was procedurally inadequate because there was no site plan for developing the land, and the environmental consequences of the rezoning cannot be measured without such a plan. They contend that the impact statement also failed to consider specific alternative uses to which the property might be put under the various zoning classifications. Where the major action involved is a non-project zoning change which has no immediate or measurable environmental consequences, more flexibility is required to achieve substantial compliance with the state Environmental Policy Act. The court holds that the EIS in this case is adequate because it contained a reasonably thorough discussion of environmental impacts in terms of the maximum potential development of the property under the various zoning classifications allowed. See Cheney v. Mountlake Terrace, 87 Wash. 2d 338, 552 P.2d 184 (1976).

The court goes on to rule that the zoning change is not contrary to the substantive policies of the state Environmental Policy Act, nor was it arbitrary and capricious. The decision to proceed with the rezoning in view of the adverse environmental consequences of any potential development of the property disclosed by the EIS amounted to a legislative decision to delay full implementation of the Act until the development permit stage. Such a decision is permissible and does not violate the Act as long as the city council has the authority to implement fully the law's environmental policies by requiring preparation of an additional EIS at that time. Narrowsview Ass'n v. Tacoma, 84 Wash. 2d 416, 526 P.2d 897 (1974).

If a particular government action were to result in severe environmental consequences and there were no other important beneficial consequences against which to balance them, a court would be warranted in holding the action to be arbitrary and capricious and violative of the Act's substantive policies. Eastlake Community Council v. Roanoke Assoc., 82 Wash. 2d 475, 513 P.2d 36 (1973). In this case, however, the council considered the Act's policies to the extent possible in the context of a nonpoint zoning action with no immediate environmental consequences. Moreover, it would be unreasonable to condition zoning changes on the submission of a development plan; such a requirement would frustrate local attempts to implement comprehensive land use plans.

The lower court's judgment is affirmed.

The full text of this opinion is available from ELR (9 pp. $1.25, ELR Order No. C-1131).

Counsel for Plaintiff-Appellant
Philip M. Best
245 4th St. Bldg., Bremerton WA 98310
(206) 373-5079

Counsel for Defendants-Respondents
Bishop, Cunningham & Costello
Kitsap Plaza Bldg., 3330 Kitsap Way, Bremerton WA 98310
(206) 377-7691

Pearson, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]