[Note: This post was drafted by Litigation Partner Vanessa Power]

In Ellensburg Cement Products v. Kittitas County, et al., the Washington Supreme Court in an en banc ruling held that when a county provides a procedure for appealing a determination under the State Environmental Policy Act (SEPA), the county must provide at least one open record hearing. The Court rejected Kittitas County’s argument that it could create its own proceeding, or interpret SEPA to provide no open record hearing.

An individual landowner, Homer Gibson, applied to Kittitas County to amend a prior Conditional Use Permit (CUP) that would allow him to conduct rock crushing in addition to gravel extraction on his land. Based on the original CUP, Gibson had previously received a gravel extraction permit from the Department of Natural Resources (DNR). In seeking to amend the CUP, Gibson suggested that the CUP was not limited to a 13.4 acre parcel, but applied to all 84 acres of his land. Gibson also submitted to Kittitas County an altered SEPA checklist that referred to a mining area greater than that permitted by DNR. Ellensburg Cement objected to Gibson’s application and noted the discrepancies.

Kittitas issued a determination of nonsignificance (DNS), and Ellensburg Cement appealed. Kittitas considered the SEPA appeal in a closed record hearing and upheld the DNS. Kittitas then held a public hearing on the CUP, and granted Gibson’s CUP application. The trial court affirmed Kittitas’s actions. The Court of Appeals reversed, holding that Kittitas was required to hold an open record hearing on Ellensburg Cement’s appeal from the SEPA DNS. The Court of Appeals also held that rock crushing was not a permissible conditional use. The Supreme Court affirmed the Court of Appeals.

Under SEPA, counties must make determinations regarding the environmental impact of projects. A county charged with making SEPA determinations may choose whether or not to provide an internal appeals process for challenging its determinations. Under RCW 43.21C.075(3)(b), if a local government opts to provide a SEPA appeal, it must occur simultaneously with a hearing on the underlying action. Under RCW 36.70B.060, “if a local government elects to provide an appeal of its threshold determinations or project permit determinations, the local government shall provide for no more than one consolidated open record hearing on such appeal.” (Emphasis added). Kittitas and Gibson argued that the language of RCW 36.70B.060(6) should be read to mean that Kittitas is free to provide less than one consolidated open record hearing, meaning no open record hearing. The Supreme Court disagreed.

While agreeing that “no more than one” does, literally, encompass both one and none, the Supreme Court held that statutory construction based on the plain language of the statute does “not stop with literal, word-by-word interpretation bereft of context.” The Supreme Court instead interpreted the statute “in light of ‘related statutes which disclose legislative intent about the provision in question.’” (quoting Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 11). Based on related statutes, the Supreme Court concluded that RCW 36.70B.060(6) is part of a statutory scheme that requires that a county opting to provide an appeal of its SEPA determination must provide at least a single simultaneous open record hearing. In other words, the statute limits the number of open record hearings, but cannot consistent with the statutory scheme be read to limit the number of open record hearings to none.