One Energy Development, LLC v. Kittitas County

FILED JULY 9, 2019 In the Office of the Clerk of Court WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

ONE ENERGY DEVELOPMENT, LLC, ) No. 36240-0-III ) Plaintiff, ) ) IRON HORSE SOLAR, LLC, ) ) Appellant, ) ) v. ) ) UNPUBLISHED OPINION KITTITAS COUNTY, a municipal ) corporation; and KITTITAS COUNTY ) BOARD OF COMMISSIONERS; and ) WILLIAM HANSON, an individual; and ) “SAVE OUR FARMS! SAY NO TO ) IRON HORSE!”; and CRAIG CLERF and ) PATRICIA CLERF, husband and wife, ) ) Respondents. )

PENNELL, A.C.J. — Under Kittitas County’s zoning code, a solar farm project can be developed in certain agricultural areas if approved through a conditional use permit (CUP). The code lists several criteria for CUP approval, including, as relevant here, a condition that a project preserve “rural character” as that term is defined in the Growth Management Act (GMA), chapter 36.70A RCW. In the GMA, rural character refers to areas where open space, the natural landscape, and vegetation predominate over the built environment.

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One Energy Development, LLC applied to Kittitas County for a CUP in hopes of constructing a large solar farm. A hearing officer initially recommended approval, but the Kittitas County Board of Commissioners (Commissioners) disagreed and voted against the CUP by a tally of 2-1. In making this decision, the Commissioners specified that the solar project was inconsistent with the GMA’s definition of rural character because, on the parcels of land at issue in the CUP application, open space, the natural landscape, and vegetation would not predominate over the built environment.

The Commissioners’ CUP analysis took too narrow a view of what it means for open space to predominate over the built environment. The GMA’s rural character definition refers to patterns of development within the rural element of a county’s comprehensive land use plan. It is not limited to a particular parcel or project site. Because the Commissioners’ CUP denial was predicated on an erroneous legal determination, this matter must be remanded for further proceedings.

BACKGROUND

One Energy Development, LLC and Iron Horse Solar, LLC 1 sought to construct a solar photovoltaic project (Project) on farmland owned by William Hanson in Kittitas County, Washington. At the time it was proposed, the Project would have been the

1 One Energy has sold its interests to Iron Horse, leaving Iron Horse the sole real party in interest to this appeal.

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largest solar facility in Washington, covering 47.5 acres of a 67.8 acre, 4-parcel property. The Project’s proposed site was within Kittitas County’s agriculture (A-20) zone. Zone A-20 “is an area wherein farming, ranching and rural life styles are dominant characteristics.” KITTITAS COUNTY CODE (KCC) 17.29.010. The intent of the A-20 zoning “classification is to preserve fertile farmland from encroachment by nonagricultural land uses; and protect the rights and traditions of those engaged in agriculture.” Id. At the time of the Project’s CUP application, such a solar project was categorized as a major alternative energy facility and allowed in an A-20 zoning area only as a conditional use. Former KCC 17.61.010(9) (2001), .KCC 17.61.020(4)(b).

Kittitas County sets forth the following criteria that must be met for approval of a CUP:

1. The proposed use is essential or desirable to the public convenience and not detrimental or injurious to the public health, peace, or safety or to the character of the surrounding neighborhood. 2. The proposed use at the proposed location will not be unreasonably detrimental to the economic welfare of the county and that it will not create excessive public cost for facilities and services by finding that A. The proposed use will be adequately serviced by existing facilities such as highways, roads, police and fire protection, irrigation and drainage structures, refuse disposal, water and sewers, and schools; or B. The applicant shall provide such facilities; or C. The proposed use will be of sufficient economic benefit to offset additional public costs or economic detriment.

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3. The proposed use complies with relevant development standards and criteria for approval set forth in this title or other applicable provisions of Kittitas County Code. 4. The proposed use will mitigate material impacts of the development, whether environmental or otherwise. 5. The proposed use will ensure compatibility with existing neighboring land uses. 6. The proposed use is consistent with the intent and character of the zoning district in which it is located. 7. For conditional uses outside of Urban Growth Areas, the proposed use: A. Is consistent with the intent, goals, policies, and objectives of the Kittitas County Comprehensive Plan, including the policies of Chapter 8, Rural and Resource Lands; B. Preserves “rural character” as defined in the Growth Management Act (RCW 36.70A.030(15);[2] C. Requires only rural government services; and D. Does not compromise the long term viability of designated resource lands.

KCC 17.60A.015 (emphasis added).

The GMA provision incorporated into Kittitas County’s CUP standard (KCC 17.60A.015(7)(B) quoted above) defines “rural character” as a pattern of land use and development where, among other things, “open space, the natural landscape, and vegetation predominate over the built environment.” RCW 36.70A.030(16)(a).

Iron Horse’s CUP application went before a Kittitas County hearing examiner for an open record public hearing, pursuant to former KCC 15A.01.040(4)(d) (2014)

2 The GMA’s rural character definition is currently codified at RCW 36.70A.030(16).

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and KCC 15A.02.060. 3 The hearing examiner admitted numerous exhibits into the record, considered evidence, testimony and arguments presented by interested parties regarding the SEPA determination and CUP application. Ultimately, the hearing examiner issued a lengthy written decision, recommending 4 approval of the CUP. The written decision included 44 recommended conditions of approval. 5

The Commissioners took up the hearing officer’s recommended findings and conclusions through a closed record hearing process, pursuant to former KCC 15A.01.040(3)(a) (2014). The Commissioners’ hearings were held over two days: December 20, 2016 and January 10, 2017.

During the December 20 hearing, Commissioner Obie O’Brien and Commissioner Paul Jewell questioned the county’s staff representative about environmental details of the Project. Commissioner Laura Osiadacz then moved on to a “bigger topic” that caused her the most concern. Clerk’s Papers (CP) at 271. Commissioner Osiadacz questioned

3 The hearing examiner also considered an appeal of a mitigated determination of nonsignificance under the State Environmental Policy Act (SEPA), chapter 43.21C RCW. The SEPA appeal was denied and not pursued further. 4 At the time of the hearings in this case, Kittitas County limited the hearing examiner’s role to providing recommendations on the issuance of a CUP. Former KCC 15A.01.040(4)(d). Under the relevant code provision, the Commissioners were responsible for considering the hearing examiner’s recommendations and making a final decision for the county. Former KCC 15A.01.040(3)(a) (2014). 5 The recommended conditions of approval were in addition to the mitigation conditions included in the mitigated determination of nonsignificance.

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whether the Project was consistent with preservation of rural character as defined in the GMA. Pointing to the GMA’s rural character definition recited above, Commissioner Osiadacz expressed concern that the Project would not result in open space predominating over the built environment since “62.5 percent of the property being use[d] for this project is going to be built on.” Id. Commissioner Osiadacz voiced concern that the Project’s large size would “take away from our agricultural lands and really take away from the character of our community.” Id. at 279. The matter was then continued to January.

During the January 10, 2017 proceeding, Commissioner Osiadacz and Commissioner O’Brien both focused on the issue of whether the Project was consistent with rural character, as required for a CUP. Both commissioners stated that the rural character requirement was not met, but they differed as to their reasoning. Commissioner Osiadacz continued to express concern over the Project site and the fact that over one-half of the property would be covered by development. Commissioner Osiadacz indicated that if she were to take a broader view of what it meant for open space to predominate over the built environment, her analysis of the CUP application would be different. 6

6 Specifically, Commissioner Osiadacz stated that if she were to consider the entirety of Mr. Hanson’s property, 450 acres, instead of the 67.8 acres at issue, the development would be “under that 50 percent mark” and “there would be no way based on code that I could vote against this.” CP at 342.

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Commissioner O’Brien did take a broader view of what it meant for open space to predominate over the built environment. He explained that the rural character assessment should be made by looking to neighboring properties, not just a project site. Nevertheless, even with this broader view, Commissioner O’Brien explained that the Project was incompatible with the rural character of A-20 zoned land. Given the size of the Project, Commissioner O’Brien commented that the solar farm site would “stick[ ] out like a missing tooth in a smile.” Id. at 336.

Commissioner Jewell agreed with Commissioner O’Brien that the rural character assessment goes to “the general landscape within the general area, not special to the individual parcel that’s been considered for the project.” Id. at 343. However, Commissioner Jewell disagreed with the disposition recommended by his fellow commissioners. Commissioner Jewell reasoned that because a major alternative energy facility, such as a solar farm, can be granted a CUP in an A-20 zone, the only question was whether the impact of such a facility on a surrounding rural community can be adequately mitigated. If impacts can be mitigated, rural character is maintained as a matter of law and the CUP must be granted.

After each commissioner clarified their disagreement over the rural character standard, Commissioner O’Brien moved to deny the CUP application. Commissioner Osiadacz seconded the motion. A discussion ensued, during which Commissioner

No. 36240-0-III One Energy Dev. LLC v. Kittitas County

O’Brien explained that Iron Horse’s Project was “not compatible with [existing farming] uses and with the neighborhood.” Id. at 353. Commissioner Osiadacz stated she wished to deny the CUP based on her previous comments and what it means for the built environment to predominate over open space. Commissioner Jewell then voiced a dissenting opinion. He expressed concern over whether the Commissioners’ decision would not be supportable through written findings. After calling for a formal vote, the CUP was denied, 2-1.

The Commissioners subsequently issued a five-page written decision in resolution form. For ease of reference, a copy of the decision, id. at 10-14, is appended to this opinion. The decision contains two sets of numbered paragraphs, the first numbered 1-12 and the second numbered 1-4. The first set of paragraphs are presented as findings of fact and conclusions of law, and consist of uncontroverted procedural facts leading up to the Commissioners’ decision. The second set of numbered paragraphs addresses the contested issue of whether the CUP should be granted. Paragraph 1 cites to the GMA’s rural character definition (former RCW 36.70A.030(15) (2005)), and states that, if the Project were approved “[o]pen space, the natural landscape, and vegetation would not predominate over the built environment on the subject parcels.” Id. at 14. Paragraphs 2-3 of the second set of numbered paragraphs state, without

No. 36240-0-III One Energy Dev. LLC v. Kittitas County

elaboration, that the proposed Project fails to comport with the requirements of KCC 17.60A.015(1), KCC 17.60A.015(5), and KCC 17.60A.015(7)(B).

Iron Horse Solar subsequently sought review in Kittitas County Superior Court under the Land Use Petition Act (LUPA), chapter 36.70C RCW. The superior court issued a memorandum decision denying relief. Iron Horse now appeals to this court.

ANALYSIS

Standard of review

Local land use decisions are reviewed under LUPA. RCW 36.70C.020(2). When assessing the merits of a LUPA appeal, we stand in the same position as the superior court and review the administrative record. King County Dep’t of Dev. & Envtl. Servs. v. King County, 177 Wn.2d 636, 643, 305 P.3d 240 (2013). A party appealing a land use decision bears the burden of meeting one of the six statutory standards for relief. RCW 36.70C.130(1). Iron Horse seeks relief under three of the applicable standards: RCW 36.70C.130(1)(b) (“The land use decision is an erroneous interpretation of the law, after allowing for such deference as is due the construction of a law by a local jurisdiction with expertise.”); RCW 36.70C.130(1)(c) (“The land use decision is not supported by evidence that is substantial when viewed in light of the whole record before the court.”); and RCW 36.70C.130(1)(d) (“The land use decision is a clearly erroneous application of the law to the facts.”).

No. 36240-0-III One Energy Dev. LLC v. Kittitas County

Under the standards cited by Iron Horse, questions of law are reviewed de novo and factual determinations are reviewed for substantial evidence. Cingular Wireless LLC v. Thurston County, 131 Wn. App. 756, 768, 129 P.3d 300 (2006). We defer to factual determinations made by the highest administrative body exercising fact-finding authority. Id. In this case, the Commissioners were the highest (and only) fact-finding authority. Former KCC 15A.01.040(3)(a). When it comes to review under RCW 36.70C.130(1)(d), a land use decision will be rejected as clearly erroneous if “we are left with a definite and firm conviction that a mistake has been committed.” Cingular Wireless, 131 Wn. App. at 768. The legal question of the rural character definition

Under the circumstances relevant to this case, Kittitas County’s CUP provision requires an assessment of whether a proposed conditional use would be consistent with preservation of “rural character” as defined in the GMA.

The GMA defines “rural character” as:

[T]he patterns of land use and development established by a county in the rural element of its comprehensive plan: (a) In which open space, the natural landscape, and vegetation predominate over the built environment; (b) That foster traditional rural lifestyles, rural-based economies, and opportunities to both live and work in rural areas; (c) That provide visual landscapes that are traditionally found in rural areas and communities;

No. 36240-0-III One Energy Dev. LLC v. Kittitas County

(d) That are compatible with the use of the land by wildlife and for fish and wildlife habitat: (e) That reduce the inappropriate conversion of undeveloped land into sprawling, low-density development; (f) That generally do not require the extension of urban governmental services; and (g) That are consistent with the protection of natural surface water flows and groundwater and surface water recharge and discharge areas.

RCW 36.70A.030(16).

Rules of statutory interpretation guide our analysis of the GMA’s rural character definition. 7 The “fundamental objective” of statutory interpretation “is to ascertain and carry out the [l]egislature’s intent.” Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002). The primary resource for this endeavor is the language used by the legislature. But words must not be viewed in isolation. Instead, “meaning is discerned from all that the [l]egislature has said in the statute and related statutes which disclose legislative intent about the provision in question.” Id. at 11.

Viewing RCW 36.70A.030(16) in context, it is apparent that the question of whether open space will predominate over the built environment must be considered in the context of patterns of development within “the rural element” of the county’s

7 As previously stated, our review of legal issues is de novo. Because the GMA is a state statute, not a local ordinance, local expertise is not relevant to our interpretation. City of Federal Way v. Town & Country Real Estate, 161 Wn. App. 17, 37-38, 252 P.3d 382 (2011).

No. 36240-0-III One Energy Dev. LLC v. Kittitas County

“comprehensive plan.” This is a broad standard, and for good reason. The GMA was written to address county-wide planning issues, not specific land use determinations. See Citizens for Mount Vernon v. City of Mount Vernon, 133 Wn.2d 861, 873, 947 P.2d 1208 (1997). The GMA affords counties the flexibility to include a variety of densities within the rural element of their comprehensive plans. RCW 36.70A.070(5)(b). Given this circumstance, the question of whether open space predominates over the built environment cannot be viewed from a myopic perspective, specific to one piece of property or a particular project. Although an individual land use decision can properly take into account larger goals set by the GMA and a county’s comprehensive plan, see Cingular Wireless, 131 Wn. App. at 770-72, this individualized context does not alter the meaning of the GMA’s statutory terminology.

It bears emphasis that, under the Kittitas County Code, the GMA’s rural character assessment is only one of several general standards governing CUP approval. In addition to preserving rural character as defined by the GMA, a CUP applicant must also establish that a proposed project is “not detrimental or injurious . . . to the character of the surrounding neighborhood” and “will ensure compatibility with existing neighboring land uses.” KCC 17.60A.015(1), (5). Such considerations are, by definition, highly localized, though not necessarily confined to a particular project site. Local considerations are important to ensuring that a zoning decision is compatible with

No. 36240-0-III One Energy Dev. LLC v. Kittitas County

the goals of the GMA and a county’s comprehensive plan. But they are not the same thing as the broader 8 GMA rural character inquiry. The Commissioners’ decision

In the discussions leading up to the CUP decision, the Commissioners debated the appropriate interpretation of the GMA’s rural character definition. Commissioner Jewell and Commissioner O’Brien advanced an interpretation of rural character fairly consistent with our analysis. But Commissioner Osiadacz articulated a different, narrower view that is inconsistent with the interpretation set forth above. Because the adverse CUP decision turned solely on the votes of Commissioner O’Brien and Commissioner Osiadacz, the ultimate legality of the Commissioners’ decision turns on whether it was premised on the narrow interpretation advanced by Commissioner Osciadacz.

8 Not all components of the GMA’s rural character definition are necessarily broader than the neighborhood considerations set forth at KCC 17.60A.015(1) and (5). The GMA’s “predominate,” or density, inquiry is only one of seven components of the rural character definition. RCW 36.70A.030(16)(a). Several of the components can involve highly localized considerations. For example, a small development could be functionally incompatible with a jurisdiction’s rural character if it would impair fish and wildlife habitat. RCW 36.70A.030(16)(d). Or a relatively small structure could be visually incompatible with rural character if it marred the appearance of the rural landscape. RCW 36.70A.030(16)(c). When it comes to the functional and visual components of the rural character definition (as opposed to the density component), “rural character is perceived at relatively close quarters (e.g., within the view shed, ‘just up the road,’ or across the fence line).” Vashon-Maury v. King County, No. 95-3-0008, 1995 WL 903209 at *47, 1995 GMHB LEXIS 428 (Cent. Puget Sound Growth Mgmt. Hr’gs Bd. Final Decision and Order Oct. 23, 1995).

No. 36240-0-III One Energy Dev. LLC v. Kittitas County

Our review begins with the Commissioners’ written decision. Because the Kittitas County Code requires the Commissioners’ decision to include written findings, we scrutinize the findings under the same standard applicable to judicial findings. Weyerhaeuser v. Pierce County, 124 Wn.2d 26, 35, 873 P.2d 498 (1994). This standard requires that written findings must go beyond the “[s]tatements of the positions of the parties and a summary of the evidence presented.” Id. at 36. Instead, adequate findings must also illuminate the decision-maker’s reasoning process. Id. Findings are not necessary as to every controverted fact, In re Detention of LaBelle, 107 Wn.2d 196, 218-19, 728 P.2d 138 (1986), but they must be “sufficiently specific to permit meaningful review.” Id. at 218. In the land use context, findings should also be sufficiently detailed to provide guidance to a proposed developer. Kenart & Assoc. v. Skagit County, 37 Wn. App. 295, 303, 680 P.2d 439 (1984).

The only portion of the Commissioners’ decision addressing the controverted issue of whether to issue a CUP is the second set of numbered paragraphs. Paragraphs 2-4 of this set of paragraphs are nothing more than legal conclusions, specifying that the Project failed to meet the requirements of KCC 17.60A.015(1), (5), and (7)(B). As such, they cannot be fairly characterized as findings. The only portion of the Commissioners’ decision that can be interpreted as a finding of a controverted fact is the first paragraph.

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It states:

1. Open space, the natural landscape, and vegetation would not predominate over the built environment on the subject parcels if the proposal were approved in this location (RCW 36.70A.030(15)).

CP at 14.

This finding reflects Commissioner Osiadacz’s view that rural character must be judged according to the parcels of land at issue in a CUP application. As previously stated, this assessment is too narrow. Because the sole finding in support of the Commissioners’ legal conclusions reflects a misinterpretation of the governing law, the written decision is not sufficient to withstand appellate scrutiny.

In apparent recognition of the deficiencies with the Commissioners’ written decision, the county urges us to supplement the written decision with oral “statements in the record.” Labelle, 107 Wn.2d at 219. If statements from Commissioner O’Brien and Commissioner Osiadacz indicated that reasons other than the density of the Project site prompted the vote against the CUP, then the county’s position might have weight. After all, as documented by the superior court, there are numerous facts in the record that could support denial of the CUP based on KCC 17.60A.015(1), (5), and (7)(B).

The county’s suggested approach is ultimately unhelpful because the Commissioners’ oral comments underscore the concern raised by the written decision. Commissioner Osiadacz went out of her way to make clear that her vote against the CUP

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turned on the fact that over one-half of the Project site would be covered by development instead of open space. Commissioner Osiadacz also made plain that if she had taken a broader geographic view of what it meant for open space to “predominate” over the built environment, her vote would be different.

Commissioner Osiadacz’s transparency as to the reasons for her CUP decision deserves great credit. Commissioner Osiadacz knew she held a minority perspective of how to view the GMA’s rural character definition. She also knew she held the deciding vote on Iron Horse’s CUP application. By candidly clarifying the fact that her vote on the CUP application turned on her assessment of the rural character definition, Commissioner Osiadacz ensured Iron Horse would receive meaningful consideration on appeal, should her assessment turn out to be incorrect. That is what happened and it is the way our justice system should work. Because Commissioner Osiadacz’s assessment of the rural character definition turned out to be inconsistent with our interpretation, the current CUP decision cannot stand. Applicable remedy

Appellate remedies for an adverse land use decision include reversal or remand for modification or further proceedings. RCW 36.70C.140. Iron Horse requests we reverse the Commissioners’ decision and remand with instructions to adopt the findings and conclusions proposed by the Kittitas County hearing examiner. This position lacks legal

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support. The hearing examiner never made any legal findings. Pursuant to the terms of the applicable county code, former KCC 15A.01.040(4)(d), the hearing examiner merely made “recommendations” that the Commissioners were free to adopt or reject. See Marantha Mining v. Pierce County, 59 Wn. App. 795, 800-01, 801 P.2d 985 (1990). Although we will sometimes reverse an adverse land use decision with instructions to grant specific relief, doing so is an extreme remedy. We will only direct specific relief when it is apparent that remand for further proceedings would be “pointless.” Id. at 805.

Here, we have no reason to believe remand would be pointless. The legal error giving rise to this decision was prompted by a good-faith dispute over the meaning of a technical statutory term. There was no misconduct or bad faith. As set forth by the competing analyses provided by the hearing examiner and the superior court, the facts in the record could have supported either approval or denial of the CUP. The appropriate remedy is therefore to remand for further proceedings without instructions as to a particular disposition.

CONCLUSION

This matter is remanded for reconsideration of Iron Horse’s CUP application, pursuant to the rural character definition set forth in this opinion. The Commissioners’ decision on reconsideration shall include written findings of fact that are sufficiently

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detailed to permit meaningful review by Iron Horse and by the judiciary, should there be any further appellate review.

A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.

_________________________________ Pennell, A.C.J.

I CONCUR:

______________________________ Siddoway, J.

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APPENDIX

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FEARING, J. (dissenting) -Ample facts support the findings and conclusions of the Kittitas County Board of Commissioners regardless of on what theory a commissioner relied in denying the application of a conditional use permit. Therefore, I would affirm the trial court's denial oflron Horse Solar's LUPA petition. The trial court penned a thorough and thoughtful decision when denying the petition, and I adopt that decision as my dissent. Attached is a copy of the trial court's decision. I DISSENT:

Fearing, f~ •.:r.

2 3

4 IN THE SUPERIOR COURT OF WASHINGTON KITTITAS COUNTY 5 ONE ENERGY DEVELOPMENT LLC; and 6 IRON HORSE SOLAR LLC Cause No. 17-2-00075-5

7 Plaintiffs, 8 vs. MEMORANDUM DECISION 9 KITTITAS COUNTY, a municipal 10 corporation; and KITTITAS COUNTY BOARD OF COMMISSIONERS; and 11 "SAVE OUR FARMS! SAY NO TO IRON 12 HORSE!; and CRAIG CLERF AND PATRICIA CLERF, husband and wife 13 Defendants. 14

15 16 INTRODUCTION

17 Oral argum~nt on Petitioner's Land Use Petition Act 18

19 (LUPA) appeal occurred on September 7, 2017. Timothy McMahon

20 appeared for the plaintiffs. Kenneth Harper appeared fqr the 21 Defendant Kittitas County and the Kittitas County Board of 22 Commissioners. James Carmody appeared for Defendants Save our 23 Farms and Craig and Patricia Clerf. After hearing all drguments, 24 the Court took the matter under advisement in order to review the 25 record and the pleadings submitted by all parties. The Court has 26

27 reviewed the voluminous hearing records, state statutes, county

28 code provisions, court cases, and all arguments presented. 29

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2 DISCUSSION 3

4 1. Factual Background At issue is the granting or denial s of a Conditional Use Permit for property owned by William Hanson, 6

7 located east of the town of Kittitas on four flat parcels of land

8 in the center of the Kittitas Valley, in the midst of farmland. 9 Currently the land is used for farming a rotation of crops, 10 including timothy hay and alfalfa. The soil is productive and 11 the adjacent and nearby neighbors are also engaged in farming. 12 The property owner proposed to lease his property to One Energy 13 Development LLC and to convert the farmland into a 47.5 acre 14

15 solar PV facility in an area which is zoned there and all around

16 it as Agriculture 20 (A-20). The project is named the Iron Horse

17 Solar LLC project. The land use designation for the property and 18 the surrounding properties is Rural Working Land. 19 The Kittitas County Code provides that a solar farm--which 20 is designated by the County code in KCC 17.61.010(9) as A "major 21 alternative energy facilityu-is allowed in the A-20 zoning area 22 only as a conditional use. KCC 17.61.020(4) (b) . 1 Thus, in order 23

24 to operate in this A-20 area, this solar PV facility must first 25

26 27 1 The term solar farm is used both in the Kittitas County Code and in the

28 application for conditional use permit. However, the facility involved is not 29 a farm. It is a facility that is non-ag~icultural and industrial in nature.

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be granted a conditional use permit for this particular property

2 by the Kittitas County Board of Commissioners.

3 During the ongoing application process for approval of the

4 facility, One Energy had to also abide by the Kittitas County 5 SEPA process as well. The SEPA review and the project permit 6 review were consolidated into one procedure, pursuant to KCC 7 lSA.01.010. The SEPA issues went before a Hearing Examiner, who 8 conducted an open record adjudicative hearing on October 20, 9

JO 2016. Public comment and testimony and submission of evidence 11 were taken at this hearing. The Hearing Examiner's job was both

12 to decide the merits of the administrative appeal of the State I3 Environmental Policy Act threshold determination and issuance of 14 the Mitigated Determination of Nonsignificance (MONS), and to 15 make a recommendation to the Board of County Commissioners about 16 the issuance of th~ conditional use permit (CUP). 17

18 The Hearing Examiner did do this. It denied the SEPA 19 appeal, affirming the MONS, and it also recommended that the BOCC

20 approve the CUP application with conditions. The proposal had 21 engendered considerable public interest, particularly among 22 adjacent and other nearby landowners, and they participated as 23 allowed by providing letters, testimony, and various documents 24 for consideration. 25

26 After the decision and recommendation of the Hearing 27

28 29

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Examiner, the Board of County Commissioners held a closed record

hearing pursuant to KCC lSA.01.040(3) (a) to make a decision as to 2 3 the granting of the conditional use permit. The closed record

4 hearing meant that the commissioners were given the full 5 administrative record available to the Hearing Examiner, and were 6 able to discuss their questions and opinions about the various 7 issues presented, to deliberate, and eventually to issue a 8 written decision in the form of Resolution 2017-022, dated 9 February 7, 2017. The Commissioners, by a vote of two to one, 10

11 denied the Iron Horse project conditional use permit application.

12 In Resolution 2017-022, the commissioners listed the J3

14 following substantive statements:

15 "l. Open space, the natural landscape, and vegetation would 16 not predominate over the built environment on the subject parcels 17 if the proposal were approved in this location. (RCW 18

19 36.-70A.030 (15)

20 2. The proposed use in· the proposed location is not 21 essential or desirable to the public convenience and is 22

23 detrimental or injurious to the public health, peace, or safety,

24 or to the character of the surrounding neighborhood. (KCC 25 1 7. 60A.015 ( 1) ) 26 3. The proposed use in the proposed location would not 27

28 ensure compatibility with existing neighboring land uses. (KCC 29

01340

17.60A.015(5).

2 ·4. The proposed use in the proposed location does not 3 preserve the "rural character" as defined in the Growth 4 Management Act. (RCW 36. 70A.030(15)) KCC 17.60A.015(7) (B)). 5

6 7 8 This appeal timely followed on February 23, 2017 with the

9 filing of the Land Use Petition. 10

lI 12

13 2. Standard.of Review: The Land Use Petition Act, LUPA, 14

15 provides the exclusive means for judicial review of a land use

16 decision (with some exceptions). Woods v. Kittitas County, 162 17 Wn. 2d 597 (2007) 18 RCW 36.70C.130 sets forth the standards for granting relief 19 in a LUPA appeal. The court may grant relief only if the party 20 seeking relief has carried the burden of establishing that one of 21

22 the six standards set forth in RCW 36.70C.130(1) has been met.

23 The standards are as follows: 24 (a)The body or officer that made the land use decision engaged in unlawful procedure or failed to follow a 25 prescribed process, unless the error was harmless; 26 (b)The land use decision is an erroneous interpretation of the law, after allowing for such deference 27 as is due the construction of the law by a local jurisdiction with expertise; 28 (c)The land use decision is not supported by evidence that is substantial when viewed in light of the whole record 29

01341

before the court; (d)The land use decision is a clearly erroneous application of the law to the facts; 2 (e)The land use decision is outside the authority or 3 jurisdiction of the body or officer making the decision; or 4 (f)The land use decision violates the constitutional rights of the party seeking relief. 5 RCW 3 6. 7 QC. 13 0 ( 1) • 6

7 One Energy,~ in its brief, argues that it can establish five

8 out of the six standards, (a) through (e). The court will 9 discuss each in this decision. JO

11 Deference must be given to the decisions and factual 12 determinations of the local decision making authority. In this 13

14 case, the BOCC enacted in KCC lSA.01.040 (4) (d) a model in which

15 the Hearing Examiner shall make only recommendations to the BOCC

16 regarding the granting of conditional use permits. Decision 17 making authority over the granting of conditional use permits is 18 retained by the BOCC in the code. This reviewing court, thus, 19 must give substantial deference to the decisions of the BOCC, not 20 to the Hearing Examiner, which makes findings and decisions 21

22 regarding SEPA, but not the decision regarding conditional use 23 permits. Evidence, and all logical inferences from that

24 evidence, are viewed in the light most favorable to the party 25 that prevailed in front of the BOCC-in this case the defendants. 26

27 Plaintiff did not cite persuasive authority which would 28 support giving that deference to the Hearing Examiner because of 29

01342

a perceived or real deficiency in the Findings of Fact found by

2 the· legal decision maker, and this Court declines to find that

3 the Hearing Examiner was the highest fact finder in this case. 4

5 For the reasons set forth below, this Court finds that the 6 plaintiff has not established any of the standards necessary to 7 overrule the determination of the Board of County Conunissioners. 8

9 10 11

}2 3. Analysis: 13 Analysis of plaintiff's Statement of Issues is organized 14 around specific LUPA standards of review. 15

16 I. THIS LAND USE DECISION WAS NOT OUTSIDE THE AUTHORITY OR 17 THE JURISDICTION OF THE KITTITAS COUNTY BOARD OF COMMISSIONERS 18 UNDER RCW 36.70C.130(1) (e). 19

21 One Energy argues as part of standard (1) (e) that the BOCC 22 acted outside of its authority by disregarding the Hearing 23 24 Examiner's findings.· This Court disagrees. 25 The Board's role in the conditional use permit process is to

26 determine whether the applicant has met the requirements of the 27 The conditional use using KCC 17.60A.015 Review criteria. 28 Hearing examiner did not have the authority to permit and 29

01343

authorize a conditional use.

2 The plaintiffs have not carried a burden of proving that the

3 land use decision was outside the authority or jurisdiction of

4 the body making the decision: in this case, the Kittitas County 5 Board of County Corrunissioners. As both petitioner and defendant 6 indicate, the SEPA review and the CUP review were consolidated 7 into one hearing, so that the public and the parties and all 8 interested persons could present testimony or submit evidence at 9

10 one time for consideration of the various land use decisions by

11 the various land use decision makers. 12 Nevertheless, as noted earlier, the Kittitas County Board of 13 Corrunissioners retained decision making authority with regard to 14 the granting or denial of Conditional use permits in KCC 15 lSA.01.040 (4) (d). The code provisions regarding this procedure 16 are set out in the relevant parts of KCC lSA.01.040: 17

18 "3. Board of County Commissioners. In -:1dciitior1 to it.s leg i s 1 at iv e resp on s i bi 1 i t i es under v::-.: r~: r i : -. · ~:: l !:i P , t he 19 boa rd sh a 11 review and act ~ n t he f o l l:.::. w i n c; s u b j 0· c::: s pursuant to this title: 20 a. Recorrunendat.ions of the Hearing Exarr:in1:.-::r :::r .?.L·:lrrn.:nq 21 Commission. Decision-making proces.s i-:y t.:·1\:'. beard sl·:all c: on s i s t. o f a pub 1 i r.:: meet i n q o r rn t.":~ E t i n gs 'Ah e n<. n t ni:::'. 22 board reviews the wricten record trans~it~~~ ~r0rn t~e Be a r i n q E 1. a rn i n E: r for Q u ;:i s i j u d i c .L:d ;c~ -::-. :: e .r s r: :·. :i th f: 23 P 1 an n i n g Co rn.iT, i s s i on f o r Le.;; i .s l a t i v e m-::-: t t. e ~ ::- .· ·; :-: '.:: i .s s ;j es a written decision in resolution 0r ~rdi~a~c~ to~ffi. 24 During such meeting (s), Eippropria~e ~:~?~ty -~tafr \•.·i~l p r e s e n t t he r e co rd t. o t t~ e b o ,1 r d , f) rev 1 :r. ;--. J 1 n : o r !,i a t. .1 on 25 a s n e c es s a r y to ens u r e count y code c G n·,p l i ,~ :-, r:; f: • :·.J ,.:; n e ·.·J 26 comment or information \•Jill be allc,-..;c'..i hy ~~;(· i:.1card du r i r1 '0 the de c i s ion - ma k i r, g pro(: es s . 27 b. App ea l s o f a dm i n i .':: t .:- a r ..i v fi :3 E FA a r: r i ,:; ~~ ·'" :: c -~ ,.~ .::· (i :~ r·. ·? c:1 , ,

28 a r;· t i o n v-J .:;. c h C· u t a r. u :1 d e r J. '/ i r; (}: p e r m .~ t . 29

01344

c. Open record appf-;al of administrative SE?A actions when the board of county commissioners hears t:hE: appeal of the associated administrative permit 2 decision. 3 d. Appeal of administrative determinat..ions such as short plats, variances, and code interpretations. 4 e. Shoreline substantial development permits that are 5 included in consolidated permit applications that are subject to Board review and action. 6 f. Review and provide initial local County approval, 7 denial, or approval with conditions for shoreline conditional use permits and shoreline variances that 8 are in consolidated permits applications that are 9 subject to Board review and action.

JO 4. Hearing Examiner - Recommendation. The Hearing Examiner shall review and make recommendations to the 11 board of county commissioners on the followinq applications and subjects: 12 a. All Quasi judicial review processes includintj: 13 i. applications for preliminary plats 14 ii. Rezone applications. 15 b. Other actions requested or remanded by the board of 16 county corrunissioners.

17 c. Development agreements.

18 d. Condit;ional use permits pursu~nt to the zoning code, KCC Title n 19 e. In the case of an open record appeal of 20 administrative SEPA actions when the Hearing Ezami~er makes a recorrunendation to the board of ,::ount/ 21 commissioners on the undi?r l : ,., inrd pe r:Y,i t, the Hec.:r i ng Examiner shall decide the SEPA ap~eal. 22

23 Integration of the hearings by statute, for purposes of 24 taking evidence, does not equate to mandating the rubber stamping 25 of the Hearing Examiner's recorrunendation. This court has found 26

27 no case law requiring the BOCC to "engage with the findings and 28 conclusions produced by the Hearing Examiner," or to "refute, 29

01345

challenge, or reply to" the explanations of the Hearing Examiner.

Moreover, the decision facing the Hearing Examiner regarding 2

3 the SEPA appeal involved a different decision with different

4 considerations than the decision facing the Commissioners. As 5 defendants point out, the SEPA review of the MONS is a threshold 6 determination and does not bind any decision maker on a challenge 7 to the conditional use permit. 8 The Commissioners were the only decision makers who did have 9 authority or jurisdiction to make this land use decision. 10

II Standard (1) (e) has not been met. 12

13 II. THE BOARD OF COUNTY COMMISSIONERS DID NOT FAIL TO 14 FOLLOW THEIR PRESCRIBED PROCESS IN MAKING THEIR LAND USE l5 DETERMINATION UNDER RCW 36.70C.130(1) (a). 16

17 18 The actual procedure that was followed involved an open

19 public hearing, the submission of testimony and evidence, and the 20 following consideration of all of the record of the open hearing 21 at the commissioner's closed hearing. This procedure tracked the 22 requirements set out in the code provision above. The plaintiff 23 has not identified any procedural errors in the process 24

25 undertaken in this case up to the point of the issuance of the

26 Resolution 2017-022. 27 One Energy argues that the Findings of Fact in the 28 Resolution are substantively insufficient, to the extent that 29

01346

there were essentially no findings of any substantive fact, which 2 they then argue is a failure to follow KCC lSA.06.020, and thus

3 a violation of Standard (1) (a). They argue that this failure to 4 make findings means that deference must be given to the Hearing I

5 Examiner, which was the highest previous entity that made 6 specific findings, so that the Hearing Examiner became the 7 highest level finder of fact. 8 The defendant from Save our Farms counters that a finding of 9

JO facts is indeed set forth in Resolution 1017-022, that the

11 findings, even if conclusory, are sufficient as a matter of law 12 to show the bases upon which the corrunissioners made their 13 decision. The defendant adds that they were supported by 14 substantial evidence (which will be taken up in another 15 argument). 16 The defendant Kittitas County likewise argues that even if 17

18 findings lack specificity or are conclusory, appellate review may

19 proceed where the record of the oral decision enables the 20 appellate court to review the decision making process. It argues 21 that in this case, the oral record was extensive and clear as to 22 the final factors upon which the commissioners based their 23 decision. They also apparently argue that the actual criteria 24 for conditional use permit review involve subjective general 25

26 criteria which would not be conducive to empirical facts and thus

27 are admittedly not so detailed as the hearing examiner's facts, 28 though they are at least legally sufficient. While it is true 29

01347

that the criteria are by nature general and to an extent, 2 subjective, the court believes more specific findings are 3 possible, desirable, and preferable in such a situation.

4 However, although the court notes deficiencies in the 5 findings, this court disagrees with the plaintiff and ultimately 6 agrees with the defendant that the findings made were legally 7 sufficient. 8

9 10 The findings are embodied in Reiolution 2017-022. As 11 plaintiff points out, the bulk of the facts are procedural facts

12 and recitations of the laws/code provisions/definitions which the 13 Commissioners had to consider. The last fouf statements of the 14 resolution, quoted above, which are characterized by the 15 \ plaintiff as conclusions of law, are in reality both findings and 16 conclusions. They are the only substantive factual statements 17

18 listed, and constitute the ultimate reasons that the County

19 commissioners gave to explain their denial of the conditional use

20 permit. 21

22 This Court finds these are marginally sufficient as findings 23 of fact. They lack detail and any citation to the record itself. 24 However, broad as they are, they are sufficiently specific to 25

26 permit the Court to review the record and understand the 27 decision. The oral record of the Commissioners' deliberations

28 and decision was extensive, and the voluminous record as a whole 29

01348 r I

does allow this Court to review the decision for sufficiency ·of

evidence. A common sense reading of "findings" requirements here 2 3 should prevail. Although the Court was tempted to remand the

4 case to the Board of Commissioners to set out facts with greater 5 specificity, the Court is able to understand the reasoning of the 6 commissioners without so requiring. Thus it would be a pointless 7 gesture to send the matter back for improved findings, and the 8 Court is not inclined to engage in a pointless gesture. 9

10 11 Therefore, plaintiffs have not shown that the Commissioners

12 failed to follow the prescribed process as in Standard ( 1) (a). 13

14 III. The Resolution 2017-022 is not an erroneous interpretation 15 of law under RCW 36.70C.130 (1) (b). 16

17 18 The Board found in Finding Number 4, that "the proposed use

19 in the proposed location does not preserve the rural character as 20 defined in the Growth Management Act, RCW 36.70A.030(15) and KCC 21 17.60A.015 (7) (B)." Resolution 2017-022. The definition for 22 rural character referenced in the County Code from the RCW is: 23

24 "(16) "Rural character" refers to the patterns of land use and development established by a county in the rural element I 25 of its comprehensive plan: f l (a) In which open space, the natural landscape, and vegetation predominate over the built environment; 26 (b) That foster traditional rural lifestyles, rural-ba~ed economies, and opportunities to both live and work in rural 27 areas; 28 , (c) That provide visual landscapes that are traditionally found in rural areas and communities; 29

01349

(d) That are compatible with the use of the land by wildlife and for fish and wildlife habitat; (e) That reduce the inappropriate conversion of undeveloped 2 land into sprawling, low-density development; , (f) That generally do not require the extension of urban 3 governmental services; and 4 (g) That are consistent with the protection of natural surface water flows and groundwater and surface water recharge 5 and discharge areas." RCW 36.70A.030(16).

6 This standard must be reviewed after allowing for such 7 deference as is due the construction of a law by a local 8

9 jurisdiction with expertise. In this case, the Board is the JO local decision maker and the Board is also the source of the

11 ordinance that sets out the permit criteria, referencing this 12 RCW. The Board is the governing legislative body in a largely 13 rural county, which has considerable experience in discussing and 14 determining rural character. And the Board is singly tasked with 15 deciding the issuance of Conditional Use Permits, and thus must 16

17 deal with these standards and definitions on a regular basis. 18 Some deference is due to the Kittitas County Commissioners on

19 this issue. But even if deference was not due, the Court finds 20 that the Board did not misinterpret the law. 21

22 Plaintiffs contend that the commissioners misapplied the 23 "rural character" provision of the Kittitas County Code 24 25 provision. They cite to the fact that two solar farms have

26 already been approved, and neither was appealed with respect to

27 conformance with the rural element of th~ comprehensive plan. 28 The argument appears to be that the very inclusion of solar farms 29

01350

l as a conditional use in the A-20 zone declares that solar

2 facilities are consistent with rural character.

3 However, conditional uses are not the same as permitted

4 uses. Conditional uses are uses that would not be allowed in 5 specific zones unless the proponent applicant of the particular 6 use can demonstrate to the satisfaction of the finder of fact 7 that there is compliance with each of the conditional use permit 8 criteria at that particular site. Solar farms are only allowed 9

10 in A-20 as a conditional use. Therefore, each individual solar

11 farm must meet every one of the criteria for a conditional use in

12 a site specific review and evaluation before it can be granted a 13 conditional use permit. Preserving rural character is one of the 14 conditions that must be met, and the burden of showing that it 15 does so at this specific site rests with the applicant proponent 16 of the solar farm. 17

18 There is nothing inconsistent about a finding that major 19 alternative energy facilities may but also may not preserve rural

20 character as it applies to a specific project in a specific 21 place, even in the same zoning. One component of rural character 22 refers to "patterns of land use and development established by a 23 county in the rural element of its comprehensive plan: (a) in 24 which open space, the natural landscape, and vegetation 25

26 predominate over the built environment." There could be an almost I 27 infinite number of configurations of project and siting that

28 could yield vastly different results from each other. 29

01351

Additionally, since compliance with the Comprehensive Plan

2 is made part of the local conditions which must be met for a

3 conditional use permit, the applicant is mandated to show

4 compliance with the Comprehensive Plan. Cingular Wireless, LLC, 5 131 Wn. App. 756 (2006). This court finds it is not error for 6 the Commissioners to consider rural character as it is discussed 7 in the comprehensive plan during the site specific analysis. The 8 definition in the Growth Management Act at RCW 36.70A.030 is: 9

10 Rural character refers to the patterns of land 11 11

use and developmetit established by a county in the 11 rural element of its comprehensive plan: (a) In which open space, the natural landscape, and 12 vegetation predominate over the built environment; (b} That foster traditional rural lifestyles, 13 rural-based economies, and opportunities to both live and work in rural areas; 14 (c) That provide visual landscapes that are traditionally found in rural areas and communities; 15 (d) That are compatible with the use of the land by wildlife and for fish and wildlife habitat; 16 (e) That· reduce the inappropriate conversion of undeveloped land into sprawling, low-density 17 development; (f) That generally do not require the extension of 18 urban governmental services; and 19 (g) That are consistent with the protection of natural surface water flows and groundwater and 20 surface water recharge and discharge areas

22 It is not an erroneous interpretation of law, specifically rural 23 character, to consider whether a massive industrial project of 24 this nature, encompassing 47.5 acres, eight feet high with large 25 mechanized racks to follow the sun, set in the middle of treeless 26 productive farm fields preserves rural character, interferes with 27

'28 visual compatibility of the surrounding area, or contains a built

01352

, r l environment which predominates over the natural landscape.

2 Plaintiffs point out that this facility of 47.5 acres is but

3 a small percentage of agricultural land in Kittitas County. The

4 court finds that this is true and would be relevant to an issue 5 of whether overall agriculture production in the valley is 6 threatened by the project. However, in discussing rural 7 character, the relevant criteria for the Commissioners in KCC 8 17.60A.015 were: 9

IO 1. "The proposed use is essential or desirable to the public convenience and not detrimental or iniurious to II the public health, peace, or safety or to the character of the surrounding neighborhood .... 12 5. The proposed use will ensure compatibility with 13 existing neighboring land uses. 14 6. The proposed use is consistent with the intent and character of the zoning district in which it is located. 15 7. For conditional uses outside of Urban Growth Areas, 16 the proposed use: 17 A. Is consistent with the intent, goals, policies, and objectives of the Kittitas County CompYehensive P.lan, 18 including the policies of Chapter 8, Rural and Resource Lands; 19 B. Preserves "rural character" as defined in the G.rowt.h 20 Management Act (RCW 36.70A.020(15)); 21 C. Requires only rural government services; and· 22 D. Does not compromise the long term viabili~y er designated resource lands. '' 23

24 The relevant inquiry is the effect on the character of the 25 "surrounding neighborhood" and not necessarily the entire county. 26 The plaintiffs' suggestion that the built environment be compared 27 28 to all agricultural land in the county is misplaced.

01353

. ·'

It would be illogical to determine whether the built 2 environment predominates over open space, natural landscape and 3 vegetation by considering and comparing the footprint of a 4 development of any sort to all the agricultural land in a county. 5

6 Under that analysis, a square mile of skyscrapers in the middle

7 of one hundred square miles of farm fields would not qualify as 8 predominating over the natural landscape. Yet it would clearly 9 n.ot be in keeping with rural ·character. This is obviously not the 10 intent of the zoning codes, the Growth Management Act provisions, IJ or twenty plus years of other land use decisions. In determining 12 what the "built environment" factor means, this Court has found 13

14 no case setting out firmly the parameters of this inquiry, either

15 with regard to which land is to be used for comparison to the 16 built environment, or to what percentage should be considered 17 dispositive. We are left with a common sense analysis. 18 The plaintiff has not shown that the Commissioners engaged 19 in an erroneous interpretation of the law surrounding rural 20 character, under Factor 1) (b). 2r 22

23 24

25 The Resolution is supported by substantial evidence in light IV. 26 of the entire record, pursuant to RCW 36.70C.130(1) (c). 27

28 29

01354 ,1

Plaintiff claims under the Standard for Granting Relief, RCW

36.70C.130(1) (c), that the resolution was not supported by 2

3 evidence that is substantial when viewed in light of the whole

4 record before the court. This is a sufficiency of evidence 5 claim. Plaintiff has specifically objected in this capacity to 6 Finding 2, The proposed use in the proposed location is not 7 essential or desirable to the public convenience, and is 8

9 detri~ental or injurious to the public health, peace, or safety,

JO or to the character of the surrounding neighborhood, and also to

11 Finding 3, The proposed use in the proposed location would not 12 ensure compatibility with existing neighboring land uses. 13

14 The legal standard on any claim of sufficiency of evidence 15

16 for the corrunissioners' findings under this provision is for the

17 reviewing court to consider all evidence and reasonable 18 inferences "in the light most favorable to the party who 19 prevailed in the highest forum that exercised fact-finding 20 authority." Cingular Wireless, LLC v. Thurston County, 131 Wn. 21 App. 756 (2006) 22 Plaintiff contends again in this section that the fact- 23

24 finder is the Hearing Examiner. In fact, however, as in previous

25 issue discussions, the fact-finder entitled to the inference is 26 the Board of County Corrunissioners. The Board's role in the 27 conditional use permit process is to determine whether the 28 applicant has met the requirements of the conditional use using 29

01355

KCC 17.60A.015 Review criteria. The Hearing examiner did not

have that authority to permit and authorize a conditional use. 2

3 The Board in that instance does not exercise appellate

4 jurisdiction but original jurisdiction. 5

6 Under the substantial evidence standard, there must be a 7 sufficient quantum of evidence in the record to persuade a 8 reasonable person that the declared premise is true. Phoenix 9

10 Development, Inc. v. City of Woodinville, 171 Wn. 2d 820 (2011).

11 In addition, the court reserves credibility determinations for 12 the fact finder and does not review them on appeal. J.L. 13 Storedahl & Sons, Inc. v. Cowlitz County, 125 Wn. App. 1 (2004). 14

15 It is worth noting that the following analysis has nothing 16

17 whatever to do with the views of the Court itself as to the

18 beneficial nature of solar projects in general or this project in

19 particular. All parties need to remember that this Court, as a 20 reviewing appellate court cannot substitute its own judgment for 21 It was for the judgment of the Kittitas County Commissioners. 22 the commissioners to determine whether the review criteria under 23 KCC 17.60A.015 for a conditional use permit were met. It is 24 possible for there to be substantial evidence on BOTH sides of 25

26 any issue. It is for the finder of fact, in this case the BOCC,

27 to weigh the evidence and decide the matter. The Court will 28 uphold the decision under this prong if it is supported by 29

01356

substantial evidence when viewed in light of the whole record.

It is also worth noting that more detailed and comprehensive 2

3 findings from the commissioners would have assisted all parties

4 and the court greatly in considering this appeal. However, 5 having found that they are sufficiently specific to at least 6 enable the court to consider the nature and amount of evidence' 7 that supports them, the court will discuss each one here. 8

9 10 Regarding Finding 2: In reviewing the evidence in the 11. record, and taking that evidence in the light most fa~orable to

12 the defendants, this Court finds there is substantial and 13 sufficient evidence for the commissioners to find the proposed 14 solar facility is not essential or desirable to the public I5 convenience, and that it is detrimental or injurious to the 16 character of the surrounding neighborhood. 17

18 There was no evidence this Court could find in the record

19 that the facility was in fact essential to the public 20 convenience. The plaintiff instead focused on desirability. 21 There was much discussion of the beneficial nature of clean, 22 renewable energy. Both the proponents of the site and most of 23 the opponents of the site agreed in general with the beneficial 24 nature of clean energy in the abstract. However there was no 25

26 testimony to the need for placement of this project at this 27 location, other than an assertion that the energy would be sold

28 to PSE, which entity provides some, though not all, of the 29

01357

electricity in the Kittitas Valley. Evidence of the project's

2 desirability was countered by much discussion from opponents

3 about the better suitability of land in other locations in the

4 county for the purpose of a solar farm. Although there was 5 testimony in the_ record as to potential property tax revenue and 6 a projected amount of clean energy that could be added to the 7 local power grid, the commissioners were not compelled to declare 8 it desirable when weighed against the rest of the testimony in 9

10 the record.

II The solar project was described by proponents as the largest

12 solar farm in the State of Washington. Opponents to the 13 facility were concerned with the aesthetics of thousands of steel 14 racks of panels, up to eight feet high, which are supported by 15 steel pillars, driven 6 to 8 feet into the ground throughout 47.5 16 acres of prime growing land, as well as accompanied by boxes and 17

18 instruments of electrical equipment. Local persons were concerned

19 with the sixty acre parcels being surrounded by a huge chain link

20 fence, eight feet high with strands of barbed wire at the top, 21 and there were many comparisons with heavy industry or prisons. 22 The impact on the view from the surrounding neighborhood at this 23 flat mid-valley location is undeniable. The Commissioners were 24 entitled to consider the aesthetics of such a facility. There 25 was testimony from a local realtor about property values 26

27 diminishing. The commissioners were entitled to believe this

28 testimony over the assertions of the plaintiff that studies from 29

01358

f some eastern states show no change in property values around ! solar farms. Neighbors were concerned with potential issues with 2 3 weeds in a sensitive timothy hay-growing area, and there was

4 testimony about spraying. Taken in the light most favorable to 5 the county, the Comrni"ssioners were entitled to consider this 6 testimony about the difficulties with weed control and to weigh 7 that over the plaintiff's testimony about weeds. There were 8 assertions about glare, about noise, and about the impact to 9 10 wildlife from neighbors who have seen wildlife on that particular

11 property, which commissioners were entitled to believe despite

12 the SEPA findings. 13 There were pages of letters, maps, and photographs 14 discussing the local opposition to the siting of the solar 15 facility. There was testimony from numerous nearby landowners as 16 to the character of the surrounding area, and to the potential 17

18 impact of this clearly non-agricultural, heavily industrial 19 property use to the people of this particular area. It was

20 undisputed that the character of the surrounding area is 21 farmland. The site itself is prime farmland and has been farmed 22 for years. Plaintiffs suggest without evidence that this is true 23 of all A-20 property, and that the opposition was not site 24 specific; this Court finds that the opposition to the project was 25

26 completely site specific. The character of every parcel of A-20 27 land is not before the court. Only this set of parcels is before

28 the Court, and this neighborhood. Considering all facts and 29 J 23 I f l 01359 I

. \

inferences in the light most favorable to the Commissioners, a

2 fair minded person could make the finding that the proposed use

3 in the proposed location is not desirable to the public

4 convenience, and is detrimental to the character of the 5 surrounding neighborhood. There was substantial evidence in the 6 record as a whole to support the finding. 7

8 This holding is consistent with the holding in Cingular 9

JO Wireless, LLC v. Thurston County, 131 Wn. App. 756 (2006), in

II which the Court found that the testimony of area residents amply 12 demonstrated that a cell tower would adversely impact views of 13 Mt. Rainier and open vistas of rural farmland. In noting that no 14 other structures pierced the natural skyline in that area, the 15 court held that the record contained sufficient evidence of 16 incompatibility with neighborhood character and adverse aesthetic 17

18 impacts to support the hearing examiner's decision in that case.

20 In this court's review, however, there is not substantial 21 evidence sufficient to show that the project is detrimental or 22 injurious to the public health, peace, or safety. The complaints 23 about the facility involved the nature of the area and its effect 24 on nearby farmers. Despite questions about the potential for 25

26 broken panels to leach harmful chemicals into the soil, there was

27 not sufficient evidence produced that this was a likely event. 28 The court will strike that portion of Finding and Conclusion 2. 29

01360

. ) ' .

3 Regarding Finding 3: Some opposition to the project

4 declared the site to have incompatibility with existing 5 neighboring land uses. Plaintiffs argued in their submission to 6 the County that the solar farm would have no impact on the 7 ability of neighboring farmers to continue to farm. The 8 testimony and discussion concerning special problems of weed 9

10 control around timothy hay were most germane to this finding.

11 There were also concerns expressed in the record regarding water

12 control. Although the aesthetic issues relevant to Finding 2 do 13 not impact the ability of neighbors to farm, the evidence, taken 14 in the light most favorable to the Corrunissioners, is marginally 15 sufficient for the Commissioners to make the finding and 16 conclusion that the proposed use does not ensure compatibility 17

I8 with neighboring land uses.

20 The plaintiff's contention that J.L. Storedahl &sons, Inc. 21 v. Clark County (143 Wn.app. 920 (2008) and Lakeside Industries 22 v. Thurston County (119 Wn. App. 886 (2004) require the adoption 23 of the Hearing Examiner's facts is incorrect. In both Storedahl 24

25 and Lakeside the Board of Commissioners sat as an appellate body.

26 In Storedahl, the Board did not follow legislatively established 27 re-zone criteria for the review of the rezone. In Lakeside the 28 Hearing Examiner had the authority to make the actual decision 29

25 J 01361 I l

• • Q ' • ' c:

.'

and the Board heard the appeal.

2 Plaintiff has not shown insufficient evidence under Factor

3 ( 1) (c).

6 V. Resolution 2017-022 is not a clearly erroneous application of 7 Kittitas County' ·s conditional use permit criteria from KCC 8

9 17.60A.015, as listed in standard RCW 36.70C.130{1) {d).

10 Plaintiff contends that the discussion which the 11 Commissioners indulged in regarding the general suitability of 12 solar facilities in the A-20 zone showed that they erroneously 13 relied upon the precedential effect of their decision. Plaintiff 14 correctly points out that the comprehensive plan and ensuing t 15

18 development regulations should not be revisited during a project

review.

A finding is clearly erroneous under subsection (d) when, I 1 19 although there is evidence to support it, the reviewing court on 20 the record is left with the definite and firm conviction that a 21 mistake has been corruni tted. Norway Hill Pres.· &Prot. Association 22 v. King County Council, 87 Wn. 2d 267 (1976) 23 The commissioners did express reservations about siting such 24 25 a facility in the A-20 designation. However, it is also clear

26 from the oral record when Commissioner Jewell pointed it out, 27 that they knew they could not make their decision on this case 28 The based on a rethinking of conditional uses in A-20 generally. 29

01362

' .. ""· ' ,.

Court is satisfied that the commissioners were analyzing this

2 particular project at this particular site rather than changing

3 the conditional use criteria when making the findings that they

4 made. The Court is not left with a definite and firm conviction 5 that plaintiff's alleged. mistake was committed. 6

7 This determination is made despite the later moratorium 8 placed on the future siting of solar PV facilities. It appears 9

JO that the commissioners realized the question of suitability for

II large scale solar energy facilities to be placed in an A-20 zone 12 is a matter that the commissioners must take up outside any 13 particular project review. 14

16 CONCLUSION 17

18 For the above stated reasons, the Board of County

19 Commissioner's decision to deny One Energy Development and Iron 20 Horse Solar the conditional use permit in Resolution 2017-022 is 21 upheld. The plaintiff has failed to establish that any of the six 22 standards set forth in RCW 36.70C.130(1) have been met. 23

25 Dated this 3a·~ day of November, 2017.

01363