October 2006 note: This Olympia Kiwanis stuff is old news. I've left this information on the web, because I like the thought that someone will say to one of these Kiwanis friends or members: "Grandma, (Grandpa), are you still friends with those Olympia Kiwanians?"
Breuer v. Fourre, 76
Wn.2d 582, 458 P.2d 168 (1969).
CITESEARCH
1969
[No.
40046. Department One. August 28,
1969.] WILLIAM J. BREUER et al., Respondents, v. EVERETT
FOURRE
et al., Appellants.*
[1] Counties-Officers-Exercise of Power-Conduct
of Prior Incumbents- Effect. A board of county
commissioners is not denied the right to exercise a power
given to it by statute and implemented by ordinance merely
because former boards chose not to use it. [2] Counties-Officers-Arbitrary
and Capricious Action-Definition. Action by a board of
county commissioners is arbitrary and capricious only if
taken willfully and unreasonably, without consideration
and in disregard of facts and circumstances. [3] Counties-Highways-Public
Dedication of Roads Power to Require in Plats. A board of
county commissioners may require public dedication of the
roads on a proposed plat, as a condition for the approval
of that plat.
Appeal from a judgment of the Superior
Court for Thurston County, No. 39209, D. J. Cunningham, J., entered
August 29, 1967. Reversed. Action for injunctive
relief. Defendant appeals from a judgment in favor of the
plaintiffs.
Harold R. Koch, Fred D. Gentry, and
Hugh Judd, for appellants. Lynch & Lynch, for
respondents.
LEAHY
LEAHY,
J.**-This case presents a single issue for our determination: Did the
Thurston County Commissioners act
*Reported in 458
P.2d 168. [3] See 23 Am. Jur. 2d, Dedication SS
43.
**Justice Leahy is serving as a justice pro
tempore of the Supreme Court pursuant to Const. art. 4, SS 2 (a) (amendment
38).
Aug.
1969 BREUER v.
FOURRE
583
arbitrarily and capriciously in refusing to approve a
plat submitted by the respondents, William J. Breuer and Dean F.
Norton? On April 5, 1967, the respondents, land developers of
an area called Driftwood Valley Camp, applied for approval of subdivision
No. 3 of the camp. The appellants rejected the application, contending that
the streets did not meet the minimum standards of 60 feet and that a bridge
crossing the Deschutes River to the subdivision was not wide enough to
permit 2-way traffic. Respondents then filed a complaint in superior court,
asking that the court order the commissioners to accept the plat on the
grounds that the said commissioners had acted arbitrarily and
capriciously in not approving the plat. The order was granted by the lower
court and the commissioners now appeal. Based on the authority granted
the board in RCW 58.16.040 the following ordinances were duly adopted
in 1962 with regard to the platting of any land outside the corporate
limits of any town or city of Thurston County: 18.08.010
Streets and lots. All streets shall have a minimum width of sixty feet
unless otherwise directed by the county commissioners . .
. 18.04.030 Variances. (a) Where the county
commissioners find extraordinary hardship may result from
strict compliance with those regulations, it may vary the
regulations so that substantial justice may be done and the public
interest secured; provided that such variations will not have the
effect of nullifying the intent and purpose of the comprehensive plan
or these regulations. Subdivision No. 1 of the Driftwood Valley Camp
was approved in August, 1963, and subdivision No. 2 wasapproved
in February, 1964. Neither of these subdivisions met the requirement of
the ordinance that the roads be at least 60 feet in width. When
subdivision No. 3 was later submitted for approval, a new board of county
commissioners was in office, with only one commissioner, George F. Yantis Jr., having been on the prior board which approved subdivisions No. 1
and No. 2. This new board rejected the subdivision No. 3 plat on the
ground that not only were the roads of less than 60
feet
584
BREUER v.
FOURRE
76 Wn.2d
in width, but to gain access to it, one must cross over
a bridge which, because of its limited width, could handle only 1-way
traffic. Respondents contend that the board acted arbitrarily and
capriciously in refusing to accept subdivision No. 3, particularly since the
former board had approved the other two subdivisions. [1] Is
the current board of commissioners to be denied the right to exercise a valid
power given to it because, among other matters, a former board failed to
exercise its right to impose certain restrictions? We think the answer is
no. The current board was exercising a power given to it by statute and
implemented by ordinance and such power cannot be denied the present board
simply because former boards chose not to use it. Specific
legislative authority is given to county commissioners to set regulations of
zoning and platting in RCW 58.16.040. See also Jones v. Town of Woodway, 70
Wn.2d 977, 425 P.2d 904 (1967). [2] In order for it to be
shown that appellants acted in an arbitrary and capricious manner it must be
shown that they acted willfully and unreasonably, without
consideration and in disregard of facts or circumstances. Lillions
v. Gibbs, 47 Wn.2d 629, 289 P.2d 203 (1955). Such is not the case in the
matter before us. The restrictions cannot be said to be unreasonable in
themselves and neither has the enforcement of these regulations by this
commission been arbitrary and capricious. Since March, 1964 there
have been only two occasions when the legal restrictions regarding the
width of roads have been varied. Section 18.04.030 provides for variance of
the restrictions when the commissioners determine that an extraordinary
hardship may result from strict compliance. The respondents
here make no argument that an extraordinary hardship would result to them if
subdivision No. 3 is not accepted as presently constituted. They only argue
that the commissioners acted arbitrarily and capriciously in rejecting
it. We find that the legal restrictions and the enforcement
of them by this commission constitute a reasonable exercise of
Aug.
1969
BREUER v.
FOURRE
585
the county commissioners' power and that the respondents' argument
has no merit. [3] Respondents further argue that the
commissioners' actions were arbitrary and capricious because none of
the roads on the plat as submitted were dedicated to public use and that
the commissioners have no right to restrict private lands by requiring public
dedication of the roads thereon. Section 18.16.030
provides: The completed plat must contain a dedication
which shall read as follows: "Know all men by
these presents that we, the undersigned _________ owners in fee simple
of the land hereby platted, hereby declare this plat and dedicate to
the use of the public forever, all streets, avenues, places
and sewer easements or whatever public property there is
shown on plat and the use thereof for any and all public purposes not
inconsistent with the use thereof for public highway purposes; also,
the right to make all necessary slopes for cuts or fills upon the
lots, blocks, tracts, etc., shown on this plat in the reasonable
original grading of all streets, avenues, places, etc., shown
thereon." Consequently, from the platting regulations above it
is obvious that the respondents, in order to submit their plat and have it
approved, must dedicate to public use the streets in the plat. We
hold that appellants have not acted arbitrarily or capriciously, but in
accordance with their duly constituted authority. The judgment of
the trial court is hereby reversed.
HUNTER, C. J., WEAVER,
HAMILTON, and NEILL, JJ., concur.
Loveless v. Yantis, 82 Wn.2d 754, 513 P.2d 1023
(1973).
[No. 42706. En Banc. September 6,
1973.] MORRIS J. LOVELESS et al., Respondents,
v. GEORGE
F.
YANTIS, JR., et al., Appellants.
[1] Parties-Intervention-Interest in
Subject Matter-Appeal From Administrative Decision. A
party has an interest in the subject of a judicial review
of administrative action, for purposes of CR 24(a)
permitting intervention as a matter of right, when he would
have had the right to seek judicial review himself ff the
administrative action had been adverse to
him. [See Ann. 46 A.L.R.2d 1059; 2 Am. Jur.
2d, Administrative Law SS 743.] [2]
Parties-Intervention-Interest in Subject
Matter-Organization. An organization whose members could
be aggrieved by the results of a judicial proceeding has
sufficient interest in the subject of the action to
intervene on behalf of the members. [3] Zoning-Enforcement-Interests of
Affected Owners-Representation. The interests of
particular property owners in sustaining a county's zoning
decision is not necessarily represented by the position of
the county itself which must consider the interests of the
county as a whole. [4] Parties-Intervention-As a Matter of
Right-Interpretation of Rule. CR 24(a), which permits
intervention as a matter of right, should be interpreted
to allow intervention of right unless it would work a
hardship on one of the original parties. [5] Civil
Procedure-Notice-Motions-Noncompliance. The requirement of
CR 6(d) that motions be served 5 days before the hearing
thereon is not jurisdictional. Failure to comply with the
time requirement will not be fatal to the motion when
other parties have actual notice and sufficient time to
prepare for the issues to be considered at the
hearing. [6] Zoning - Preliminary Plat - Approval - Matters
Considered. Although the requirements of a preliminary
plat are normally limited by zoning enactments to general
design and layout, any infirmity appearing on the plat
which would preclude any possible approval, whether
relating to design and layout or otherwise, will result in
rejection of the plat. [7] Zoning - Planned Unit Development - Density
Restrictions. A planned unit development, as opposed to a
planned area development, must apply applicable zoning
density rules individually to each structure in the
development. [8] Zoning-Judicial Review-Administrative Record-Necessity.
The courts cannot determine the legality of action by a
planning commission or zoning authority unless there is a
complete and accurate transcript of the records and
proceedings before such bodies. [9]
Environment-SEPA-Major Action-What Constitutes. A "major
action," for purposes of
the State Environmental Policy Act of 1971 which requires
an impact statement whenever major governmental action
significantly affects the environment, exists whenever
there is a discretionary, nonduplicative stage of
governmental approval of a private construction activity.
There is discretion whenever choice exists however narrow
or limited the statutory criteria may be, and the action
is nonduplicative if all environmental issues have not
previously been considered or new information or
developments have intervened since the last prior major action. [10]
Zoning-Environment-SEPA-Preliminary Plat-Environmental
Impact. The fact that a preliminary plat of a development
is tentative and does not represent the complete plan does
not eliminate the need for an environmental impact
statement if major action significantly affecting the
environment occurs with regard to such plat. All
environmental issues raised by the preliminary plat, even
if it shows no more than the general street layout, should
be studied and evaluated at the time of its
submission.
Appeal from a judgment of the Superior Court
for Thurston County, Nos. 42706, 42738, Warner Poyhonen, J., entered
January 25, 1973. Reversed. Action to review a zoning decision of a
county commission. Defendants appeal from a judgment in favor of
the plaintiffs.
Smith Troy, Prosecuting Attorney, and Jane
Dowdle Smith, Deputy, for appellants George F. Yantis et al. John S. Robinson
and Gordon, Thomas, Honeywell, Malanca, Peterson, O'Hern & Johnson, by
James A. Furber, for appellants Cooper Point Association et al.
Ernest L. Meyer, for respondents. Charles B. Roe, Jr., amicus
curiae.
UTTER
UTTER, J.-This is an appeal
from a superior court judgment which granted preliminary approval to a plat
filed by Morris J. Loveless, affecting property on Cooper Point
in Thurston County. The court declared the Thurston County commissioners'
refusal to grant approval arbitrary and capricious. The basic
issues raised are: (1) whether
the
intervenor-appellants /1 are entitled
as a matter of right to intervene; (2) whether the offered plat on its face
violates the county zoning ordinances; (3) whether the incomplete record
of the county proceedings on this matter brought before the court was
inadequate to support the court's judgment; and (4) whether an environmental
impact statement pursuant to RCW 43.21 is a necessary prerequisite for
preliminary approval of the plat. Each issue is answered in
the affirmative and we reverse the trial court. The property in
question is on a glacially-formed peninsula at the southern extremity of
Puget Sound, known as Cooper Point. The point is approximately 4 miles wide
at its base, narrows to less than a mile at its northern tip, and extends
7 1/2 miles into the salt water. There is extensive marine life and a wide
assortment of vegetation and wildlife. The peninsula rises steeply from the
coastal beaches and its interior is primarily a rolling terrace.
Recently a new state college has located toward the point's base. The
respondent-Loveless' project, called "By the Sea", is proposed for the narrow
tip of the point and would consist of multi-family condominiums. On
or about March 3, 1972, respondent filed an application with the Thurston
County Planning Department
(pursuant to county ordinance No. 3829), for
preliminary approval of this plat. A public hearing was held by
the Thurston County Planning Commission on the application and
a recommendation that the plat be denied was made on April 27, 1972. The
recommendation failed to provide the required reasons for denial and when the
county commissioners received the matter (pursuant to RCW 58.17.100),
they consulted with the applicant and by
mutual
--------------- 1 The intervenors are the Cooper
Point Association, composed of Cooper Point area owners and residents who
seek to insure the orderly development of the point so that the area's unique
amenities will not suffer; the Cooper's Point Water Company, Inc., composed
of landowners sharing in a common well and water system on the point;
and Katherine Partlow Draham, who owns and operates a farm adjacent to a
portion of the platted property here at issue.
agreement returned it to the planning
commission for further consideration and with instruction to state specific
reasons if the plat was again rejected. A subcommittee of the
planning commission recommended preliminary approval; however, the planning
commission referred the matter back to committee for preparation of an
environmental impact statement. At this point in the planning commission's
review, respondent asked the county commissioners to reconsider the matter,
arguing that no environmental impact statement was required. A
public hearing was held by the commissioners on August 9, 1972, and an
order denying the application for the preliminary approval of the plat was
entered on August 14, 19 72. Respondent appealed this order to
superior court. The Cooper Point Association and Cooper's Point
Water Company, Inc. appeared at an October 9, 1972 hearing requesting
permission to intervene. They were denied intervention but permitted to
submit briefs and argue the merits of the case as amici curiae. Court then
recessed, and before reconvening, Mrs. Katherine Partlow Draham filed a
separate motion to intervene. On December 6, 1972, all motions
to intervene were again denied, but all were permitted to argue as amici
curiae. The court then found the failure of the commissioners to provide any
reason for refusing to grant preliminary approval to the plat constituted
an arbitrary and capricious decision and granted the preliminary approval
sought. Appellant-commissioners began an appeal to the Court
of Appeals, while the intervenor-appellants petitioned the Supreme Court
for a writ of certiorari authorizing them to intervene. By order of the Chief
Justice the petition was granted, those seeking to intervene were permitted
to appear on appeal, and the two appeal processes were consolidated into
this review. The Cooper Point Association, the Cooper's Point
Water Company, and Katherine Partlow Draham should have been allowed to
intervene as a matter of right.
This
question is controlled by Civil Rule for
Superior Court 24 (a). /2 The trial court found those seeking to intervene
were not timely, had no claim as a matter of right, and were not necessary
or proper parties to the cause. We find it necessary to rule only on the
issue of intervention as a matter of right. CR 24 (a) requires an
intervenor to show that he claims an interest relating to the property that
is the subject of the action; that disposition of the action may impair
his ability to protect that interest; that his interest is not
being adequately represented by existing parties; and that his appeal is
timely. [1] Each of the intervenors has the necessary interest in
the property. The interest of the Cooper's Point Water Association and
Katherine Partlow Draham is direct as property owners "who feel themselves
aggrieved" and who would have had a right to appeal the ruling of
the commission had it been adverse to them. They could, in addition, have
shown special damages by way of diminution in value of their property
resulting from the action of defendants. Park v. Stolzheise, 24 Wn.2d 781,167
P.2d 412 (1946). [2] The Cooper Point Association, likewise, has
an interest in the property. An organization whose members are injured may
represent those members in proceedings for judicial review. NAACP v. Button,
371 U.S. 415, 428, 9 L. Ed. 2d 405, 83 S. Ct. 328 (1963). With the members of
the association here all residents of the area affected, the association
has a direct enough interest to challenge the administrative action. Sierra
Club v. Morton, 405 U.S. 727, 31 L. Ed. 2d 636, 92 S. Ct. 1361
(1972). The intervenors are likewise in a position where
the
--------------- 2 CR 24(a). "Intervention of Right.
Upon timely application anyone shall be permitted to intervene in an action:
(1) when a statute confers an unconditional right to intervene; or (2) when
the applicant claims an interest relating to the property or transaction
which is the subject of the action and he is so situated that the disposition
of the action may as a practical matter impair or impede his ability to
protect that interest, unless the applicant's interest is adequately
represented by existing parties."
disposition of the action may impair their
ability to protect their interests. Our ruling regarding the nature of a
preliminary plat establishes that it is not merely an insignificant stage
of the proceedings without real consequence. The failure to litigate
environmental and zoning issues at this stage could result in decisions being
reached by the county that have a binding impact on intervenors without their
consent or participation. [3] Intervenor-appellants are not per se
adequately represented by the fact that the county is appealing.
Actual proof in this case of that fact is shown by the county's failure to
urge any of the grounds upon which we base our ruling. /3 In addition,
the county must consider the interests of all the residents of the county,
where the affected property owners represent a more sharply focused
and sometimes antagonistic viewpoint to that of the county as a whole.
Herzog v. Pocatello, 82 Ida. 505, 356 P.2d 54 (1960); Bredberg v. Wheaton, 24
Ill. 2d 612, 182 N.E.2d 742 (1962). [4] The motions to intervene were
also timely. CR 24 (a) should be interpreted to allow an intervention
of right unless it would work a hardship on one of the original parties.
Wolpe v. Poretsky, 144 F.2d 505 (D.C. App. 1944), cert. denied, 323 U.S. 777,
89 L. Ed. 621, 65 S. Ct. 190 (1944); Esso Standard Oil Co. v. Taylor, 399 Pa.
324, 159 A.2d 692 (1960). [5] The failure of intervenors to follow
Civil Rule for Superior Court 6 (d), requiring service of motions 5
days before the time specified for the hearing, was not fatal in this
case. The rule is not jurisdictional. Where the party had actual notice and
time to prepare to meet the questions raised by the motions of the adversary,
deviation from the time limit may be permissible. Herron v. Herron, 255
F.2d
--------------- 3 The county solely contended that
the commissioners' decision was not arbitrary and capricious and that if so,
the trial court must remand the matter back to the commissioners rather than
itself granting the preliminary approval. Moreover, on the issue of whether a
zoning violation exists in this case, the county and intervenors are at odds
on whether the plat even raises a zoning
question.
589 (5th Cir. 1958); 4 Wright & Miller,
Federal Practice & Procedure SS 1169, at 644 n.30 (1969). There
was ample notice and time to prepare here. The appearance of intervenors as
amici curiae gave respondent adequate opportunity to know the issues raised
and be prepared to meet them. The motion to intervene is granted in this
appeal and as a matter of right should have been granted in the
trial. Respondent's submitted plat, on its face, violates
the existing Thurston County zoning ordinance (No. 3744) in two respects.
First, the proposal contemplates structures which are not permitted in a
suburban-agriculture use district like northern Cooper Point, and it
contemplates a "Planned Area Development" which is also not
permitted. A preliminary plat is defined by Thurston
County ordinance No. 3829, section 2, as A neat and
approximate drawing of the proposed layout of streets, blocks, lots
and *other elements* of a plat or subdivision which shall furnish the
basis for the Planning Commission's approval or disapproval of the
general layout of the plat or subdivision. (Italics ours.) This is
similar to RCW 58.17.020 (4). The documents filed by respondent show not only
the proposed streets but the height and location of the structures to
be served by these streets. The plat layout, therefore, related elements
of the proposed subdivision, apparently in an effort to submit a "Planned
Area Development." Some of the proposed structures in the plat were
40, 50, and 110 feet high. Given this detail, the administrative body
reviewing the plat was on notice that possible violations of the zoning
prohibition that "No building or structure shall exceed two (2) stories or
thirty-five (35) feet in height, whichever is less" in a suburban-agriculture
zone existed. Respondent contends any height violations are immaterial at
the preliminary approval stage of a plat, since a preliminary plat is only an
approximate drawing of streets, blocks and lots with the question of
zoning compliance deferred to a later stage. We disagree.
[6] It is true that a purpose of a
preliminary plat is to secure approval of the street layout and location
"design" of a proposal. Essentially, the plat provides information
not specified in ordinance regulations. 3 A. Rathkopf, The Law of Planning
and Zoning, ch. 71, SS 5 1972). The importance of this preliminary approval
procedure is indicated by Rathkopf at page 71-34:
Where this two-step procedure is in effect, consideration of the
preliminary plat must result either in its approval as
submitted, or a statement that it will be approved if it is
modified in the manner specified by the planning board, or in
*its disapproval where conditions or infirmities appear or exist
that would preclude any possibility of
approval*. The planning board cannot modify the
preliminary plat and then disapprove a final plat conforming to
the plat modified as prescribed by the board. (Italics
ours.) Therefore, since any approval or modification by
the reviewers of a preliminary plat is binding where infirmities appear
that would preclude any possible approval (such as clear zoning violations),
it is incumbent upon the planning body to reject the plat. The planning
commission is directed when considering preliminary plats of
proposed subdivisions to assure conformance of the proposed
subdivision to the general purposes of the comprehensive plan
and to planning standards and specifications as adopted by
the . . . county. RCW 58.17.100. Here, the plat's
layout was more than just a drawing of streets and lot lines, and the
indicated height of the proposed structures, violative of the height
regulations, may not be approved. It appears that respondent
proceeded under section 11A of county platting ordinance No. 3829 which sets
forth procedures for those seeking a "Planned Area Development" (P.A.D.).
The pertinent county zoning ordinance
(No.
3744) provides no authority for a P.A.D. in a
suburban- agriculture use district. [7] A "Planned Unit
Development" (P.U.D.), which is significantly different from the requested
P.A.D., is permitted by the zoning ordinance. A P.U.D. has been defined as
a self-contained community built within a zoning district, with the
rules of density controlling not only the relation of private
dwellings to open space, but also the relation of homes to
commercial establishments such as theaters, hotels, restaurants,
and quasi-commercial uses such as schools and churches. Cheney v.
Village 2 at New Hope, Inc., 429 Pa. 626, 630, 241 A.2d 81 (1968). A P.A.D.,
on the other hand, permits a group of structures to be built together in a
more pleasing and practical manner than might be permitted under
the restrictions of a subdivision and platting ordinance. Such an
ordinance does not allow structures unauthorized by zoning regulations. The
lack of enabling regulations for a P.U.D. is also fatal to the preliminary
plat in this case. We therefore conclude the plat cannot be
granted preliminary approval since on its face it violates the
controlling zoning ordinances. The essence of the trial court's
ruling was that the commissioners' decision was arbitrary and capricious. We
find it impossible to intelligently review the commissioners' decision
because of an incomplete and inadequate record. [8] Courts reviewing
the proceedings of planning commissions and county commissioners in zoning
cases are normally restricted to a consideration of the record made before
those groups. Bishop v. Houghton, 69 Wn.2d 786, 420 P.2d 368 (1966); RCW
58.17.100. Incomplete records make appellate review impossible and where a
"full and complete transcript of the records and proceedings had in said
cause" is ordered by the superior court and cannot be furnished, the
actions of those boards have been vacated. Beach v. Board of Adjustment, 73
Wn.2d 343, 438 P.2d 617 (1968). Such is the case here. The hearings
before the planning commission could not
be accurately reproduced as the tapes made
were unclear. The tapings of the county commissioners' hearings were also
too unclear to permit a complete, accurate reproduction. We are thus
presented with a conspicuously incomplete record to review. See Nesqually
Mill Co. v. Taylor, 1 Wash. Terr. 1 (1854). The problem is
similar to that noted in Battaglia v. O'Brien, 59 N.J. Super. 154, 173, 157
A.2d 508 (1960), where the court noted: in view of the
unavailability of the basic records, we are in no position to
determine whether there has been "strict conformity with the
procedural and substantive terms of the statute," nor are we
able to determine whether the municipal action was arbitrary,
capricious or a manifest abuse of discretionary authority. In
an identical quandary, the court in Russo v. Stevens, 10 Misc. 2d 530, 532,
173 N.Y.S.2d 344 (1958), stated: no adequate or intelligent
judicial review is possible unless all the essential evidentiary
material upon which the administrative agency predicates a
quasi-judicial determination is in the record and before the
court. There is thus no legal basis by which the trial court below or we
on appellate review can determine whether the commissioners' rejection of the
respondent's plat was unlawful. The trial court concluded an
environmental impact statement was unnecessary for the preliminary approval
of respondent's plat. Although our resolution of the preceding issues does
not require us to necessarily reach this question, we do so for the guidance
of the parties in light of the possible revision and resubmission of the
plat. [9] The facts of this case necessitate an
environmental impact statement pursuant to the State Environmental Policy
Act of 1971 (SEPA), RCW 43.21C, because the decision to grant preliminary
approval of the plat for the contemplated project constitutes a major action
significantly affecting the quality of the environment. Eastlake Community
Council v. Roanoke Associates, Inc., 82 Wn.2d
475,
487-98, 513 P.2d 36 (1973); Stempel v.
Department of Water Resources, 82 Wn.2d 109, 508 P.2d 166 (1973).
In Eastlake and Stempel we recognized the vigorous mandate the legislature
directed at governmental bodies to evaluate environmental and ecological
factors in their major actions. The case now before us reveals the
ideal factual setting for early, and thereby meaningful, environmental
review. No party to this appeal asserts that the project will
not significantly affect the environment. Nor is there any question but
that the preliminary approval of a plat involves discretion and in this case
is nonduplicative. Therefore, the issuance of a preliminary approval to the
respondent's plat constitutes a "major action" significantly affecting
the environment so as to require an environmental
impact statement. In Eastlake, at pages 490-92, we set forth the
elements necessary to establish a "major action." We therein indicated
that if the governmental action "involved a discretionary nonduplicative
stage" of the government's approval, SEPA would apply where the considered
project significantly affects the environment. The preliminary approval of
the plat is a discretionary act not mandatory under the Thurston County
ordinance, since this governmental action could have resulted in a denial of
the plat. Where choice exists there is discretion and the fact
that previous to SEPA the choice could be solely based on narrow or
limited evaluative points set forth in an ordinance or statute is immaterial.
"It is no answer to this finding of discretion in the renewal process that
the department is bound and limited in its considerations to the
permit renewal provisions of the Seattle code. Such a claim was raised and
rejected in Stempel . . ." 82 Wn.2d at 492. We emphasize, however,
that not all discretionary actions trigger SEPA provisions. Not only must the
action significantly affect the environment, but it must be
nonduplicative. Therefore, if environmental issues have previously
been considered or no new information or developments
have intervened since the last "major
action", a new or revised impact statement is not necessary. SEPA does
not mandate bureaucratic redundancy but only that the heretofore ignored
environmental considerations become part of normal decision making on major
actions. [10] The only argument raised against requiring
an environmental review here is that it would be premature, as this stage
is very early in the project's life. This contention was rejected in Eastlake
where we stated, at page 492: [I]t is no answer to the
application of SEPA, to claim the renewal of a building permit
is a modest exercise in a long process. Governmental action in
approving a long-term project may occur at various intervals
during the life of the project with various degrees of
significance. It is unquestionable that numerous, modest and
common governmental actions may be as damaging to
the environment as a single, vigorous and critical action. We
further emphasized, at page 489: "There may exist several phases or stages of
decision-making for any one project and each stage, if 'major', requires
an environmental impact statement." Each stage of
governmental action may focus on distinct environmental concerns, thus
providing for a more narrow evaluation. In this case, it will be of
benefit to the public and the developer that an environmental review can
be made on the "design" matters revealed in preliminary plats. Choices
exist and crisis decision making and catastrophic environmental damage can be
avoided by early deliberation here. Also, given this early stage,
the application of SEPA would result in minimizing investment costs if the
decision is abandonment or alteration. The need for an early
inquiry into environmental matters at the platting stage is emphasized by RCW
58.17.110 which sets forth the responsibility of the county
legislative body on these matters. It requires that body to
determine, among other things, if "the public use and interest will
be served by the platting of such subdivision . . . ." For either the
planning commission or county commissioners
to
determine this question, they must have before
them, in major actions, an environmental review of the project.
As previously indicated, it may well be that at the preliminary stage of
plat submission, all environmental impacts and ramifications cannot be known
or answered. Yet, the environmental concerns raised by the plat must be
reviewed. If only the street layout is indicated, its impact should
be studied. In this case, enough details of the broad project can be
readily gleaned from the submitted plat to provide a broader environmental
review on the overall project itself. We recognized in Eastlake
that SEPA is designed to avoid crisis decision making by requiring meaningful
early evaluations of environmental matters. This state policy recognizes
that the threat today to the environment is not its sudden destruction but
its progressive degradation. Environmental deliberation, not default, is
mandated by SEPA and such deliberation is required here. The
order of the superior court is reversed.
Below is an e-mail I received from a former Olympia, Washington resident.
From: ~~~~~~~~@aol.com
To: Louis Bloom manaco@whidbey.net
Sent: Wednesday, July 28, 1999 11:34 AM
Subject: OKBR
Just came across your pages and felt the urge to respond... In the early
80's (81-83) I was at the OKBR frequently as a young kid walking to/from
school, I became friends with some of the boys. At one point a small boy
confided to
me that he was being raped by another boy in the home. The abusing boy
talked about it openly! Days later I walked the victim to OPD where we both gave statements. Later that evening I began to receive these incredibly
threatening phone calls from a woman employee of the ranch who's name I
believe was Paulette at my home. She kept calling over and over screaming at
me calling me names. It was horrible. I thought I was helping someone.
Nothing came of it. Then all these years later, it all comes out ... one of
the boys that I had known there left as a young adult and still couldn't get
it together, he eventually killed himself. As an adult now I don't often
think back to those times but it still saddens me. All those boys that
needed a safe nurturing place to be, and how many of them were better off
for having been taken there? It's not about money. It cost these boys their
lives, their souls, their trust. Those people who knew, who didn't care,
they should feel such shame. Just my opinion.
From: louis a bloom manaco@whidbey.net
To: ~~~~~~~@aol.com
Sent: Wednesday, July 28, 1999 7:30 PM
Subject: Re: OKBR
thanks for your e-mail. from what i've read, dshs, the olympia police department, and other "authorities"
didn't consider child on child rape to be against the law. it was considered
"normal experimentation". The "paulette" you mention, may have been
Collette Queener who was an assistant director at the OKBR. Collette, OKBR
Director Tom Van Woerdan, and OKBR counselor Laura Rambo Russell were
half-heartedly charged, with failing to report a crime.The
charges were dismissed by the judges on technicalities. The lawyer who
represented Collette Queener said, (Nov. 14, 1996 Olympian), that it was a
"witch hunt", and that " a more innocent person (than Queener) you could not
have for a client. She's an ex-nun ..... I don't see how you could view her
in an evil or negative light."
I congratulate you for doing the right thing, when all those adults looked
the other way. I repeat on most pages that the " OKBR has cost the
Washington State taxpayers over $35 million dollars (so far)", because I
think most people
don't care about the kids involved, but they may care that it has cost them
(taxpayers) money. louis bloom
There were many obvious and long-term warnings about the 1970-94 child abusing Olympia Kiwanis Boys Ranch.
Olympia Police Chief Wurner came to an Olympia Kiwanis meeting in 1986 and told the Kiwanis about the troubles at the OKBR. Chief Wurner was ignored. Maybe he should have done more, but he probably wanted to keep his job.
It was well know by the Thurston County courts. These kids were constantly in and out of the Thurston County legal system.
Here is a 49 page index of 5,223 pages of documents that the WSP
collected about the OKBR. Anybody can order any of those public documents by following the instructions on that page.