FILE
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
ELLENSBURG CEMENT PRODUCTS, NO. 88165-1
INC.,
ENBANC
Respondent,
v. Filed FEB 0 6 2014
KITTITAS COUNTY and HOMER L.
(LOUIE) GIBSON,
Petitioners,
JAMES and DEANNA HAMIL TON, and
LARRY and SHERRIE MILLER,
Defendants.
GORDON McCLOUD, J.- Homer L. Gibson applied to Kittitas County for
a conditional use permit (CUP) that would allow him to conduct rock crushing and
other gravel and cement production related activities on his agricultural-zoned
property. Kittitas issued a determination of nonsignificance (DNS) under the State
Environmental Policy Act (SEPA), chapter 43.21C RCW, and gave notice that it
Ellensburg Cement Products, Inc. v. Kittitas County, et al., No. 88165-1
would hold a public hearing on the CUP. Ellensburg Cement Products, Inc. objected
to the CUP application and appealed Kittitas's SEPA DNS under the county's
administrative appeal procedures. In the hearing that followed, Kittitas first
considered the SEPA appeal in a "closed record" hearing, Clerk's Papers (CP) at 30,
and upheld the DNS. It then held an "open record" public hearing on the CUP, CP
at 103, and granted Gibson's application over Ellensburg Cement's objections.
Ellensburg Cement appealed both decisions to the superior court, which affirmed,
and then to the Court of Appeals, which reversed. Ellensburg Cement Prod., Inc. v.
Kittitas County, 171 Wn. App. 691, 287 P.3d 718 (2012). The Court of Appeals
held that Kittitas was statutorily required to hold an "open record hearing" on the
appeal of the SEP A DNS and that rock crushing was not a permissible conditional
use under Kittitas's relevant zoning regulations. Id. at 713. We granted Gibson's
and Kittitas's petitions for review, 176 Wn.2d 1027, 301 P.3d 1047 (2013), and now
affirm the Court of Appeals.
FACTS
Gibson owned about 84 acres of property in five contiguous parcels, zoned
"agricultural-20" (A-20). In 1997, the previous owner of that property had applied
for and received a CUP for gravel extraction on one 13.4-acre parcel of the property.
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The parties do not dispute that gravel extraction was and is a permitted conditional
use in A-20 zones.
In October 2008, Gibson applied for a gravel extraction permit from the
Department of Natural Resources (DNR) for an area of 60 acres. Kittitas confirmed
to DNR that the gravel extraction on 60 acres had been approved by the county. In
fact, the only CUP issued by Kittitas allowed gravel extraction on one 13.4 acre
parcel. Nevertheless, DNR approved Gibson's permit for an area of 60 acres in
December 2008. In April2009, Kittitas issued a notice of violation to Gibson. The
notice warned that gravel extraction was occurring on Gibson's property for which
no CUP had been issued. The record does not show any further action by the county
following the notice of violation.
In June 2010, Gibson submitted a CUP application that purported to amend
the 1997 CUP to permit rock crushing in addition to gravel extraction. His
application suggested that the 1997 CUP applied to all five of his parcels, totaling
84 acres. Included in the application was a copy of what appeared to ·be the SEP A
checklist submitted with Gibson's application to DNR in 2008. The checklist
submitted with his 2010 application to Kittitas, however, was altered-the original
checklist referred to mining an area of 60 acres, whereas the list submitted to Kittitas
referred to 84 acres.
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Ellensburg Cement objected to Gibson's application in August 2010. It noted
several of the discrepancies discussed above and also asserted that the county could
not rely only on the 2008 SEP A checklist but, rather, should conduct its own
independent SEPA review. Kittitas disagreed, determined that Gibson's application
was complete, and published a notice of the application and notice of its intent to
issue a SEPA DNS. Written comments were invited, received, and placed in the
record for consideration. In October 2010, Kittitas issued a SEPA DNS. At the
same time, the county gave notice that it would hold a public hearing on the CUP
application. Ellensburg Cement appealed the SEPA DNS.
Kittitas held the hearing on the SEP A appeal on May 11, 2011, and upheld
the DNS. The hearing's procedures were dictated by Kittitas's "new procedure for
administrative appeals." CP at 108. Under that new procedure, "[n]o new evidence
or testimony shall be given or received" and the "hearing body shall deliberate on
the matter in public in the manner of a closed record hearing." KITTITAS COUNTY
CODE (KCC) 15A.07.020(1), (2).
Directly following this closed record hearing on the SEP A appeal, Kittitas
held an "open record hearing" on Gibson's CUP application. CP at 103. Ellensburg
Cement objected to Gibson's CUP application and was permitted to present
arguments and testimony, as were all interested parties. Ellensburg Cement argued,
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among other things, that rock crushing was not a permitted conditional use on A-20
land. The hearing board disagreed and approved the application. CP at 103.
Ellensburg Cement appealed both decisions-the one from the "closed
record" SEPA appeal and the one from the "open record" CUP application hearing-
through the Land Use Petition Act (LUPA), chapter 36.70C RCW, to Kittitas County
Superior Court. The superior court affirmed. CP at 534. Ellensburg Cement then
appealed to the Court of Appeals. The Court of Appeals held that Kittitas erred by
holding a "closed record" hearing, rather than an "open record" hearing, on the
SEPA appeal. Ellensburg Cement, 171 Wn. App. at 712-13. It also held that rock
crushing was not a permitted conditional use on A-20 land. Id. at 706. Kittitas and
Gibson sought review in this court, we accepted review, and we now affirm the Court
of Appeals.
ANALYSIS
I. STANDARD OF REVIEW
Judicial review of land use decisions is governed by LUPA. RCW
36.70C.030. An appellate court is in the same position as the superior court when
reviewing a LUPA petition. Griffin v. Thurston County Bd. of Health, 165 Wn.2d
50, 54, 196 P.3d 141 (2008) (citing Isla Verde Int'l Holdings, Inc. v. City of Camas,
146 Wn.2d 740, 751,49 P.3d 867 (2002)). The party seeking reliefmust establish:
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(a) The body or officer that made the land use decision engaged
in unlawful procedure [sic] or failed to follow a prescribed process,
unless the error was harmless;
(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;
(c) The land use decision is not supported by evidence that is
substantial when viewed in light of the whole record before the court;
(d) The land use decision is a clearly erroneous application of the
law to the facts;
(e) The land use decision is outside the authority or jurisdiction
of the body or officer making the decision; or
(f) The land use decision violates the constitutional rights of the
party seeking relief.
RCW 36.70C.130(1).
Interpretation of a statute is a question of law that this court reviews de novo.
State v. Wentz, 149 Wn.2d 342,346,68 P.3d 282 (2003) (citing City ofPasco v. Pub.
Emp't Relations Comm'n, 119 Wn.2d 504,507,833 P.2d 381 (1992)). Our duty in
conducting statutory interpretation is to "discern and implement" the legislature's
intent. State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003) (citing Nat'! Elec.
Contractors Ass 'n v. Rive/and, 138 Wn.2d 9, 19, 978 P.2d 481 (1999)). Where the
plain language of a statute is unambiguous, and legislative intent is therefore
apparent, we will not construe the statute otherwise. ld. However, plain meaning
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may be gleaned "from all that the Legislature has said in the statute and related
statutes which disclose legislative intent about the provision in question." Dep 't of
Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 11,43 P.3d 4 (2002). The same
principles apply to interpretation of municipal or county ordinances, like the Kittitas
ordinance at issue here. City of Spokane v. Fischer, 110 Wn.2d 541, 542, 754 P.2d
1241 (1988) (citing Puyallup v. Pac. Nw. Bell Tel. Co., 98 Wn.2d 443, 448,656 P.2d
1035 (1982)).
II. WHETHER KITTITAS'S SEPA APPEAL PROCEDURES COMPORT WITH
STATE LAW
a. Threshold Determinations under SEPA
Under SEP A, counties and other entities must include· a detailed
environmental impact statement (EIS) "in every recommendation or report on
proposals for legislation and other major actions significantly affecting the quality
of the environment." RCW 43.21C.030(c). SEPA charges the Department of
Ecology with creating "[r]ules for criteria and procedures applicable to the
determination of when an act of a branch of government is a major action
significantly affecting the quality of the environment for which a detailed statement
is required to be prepared pursuant to RCW 43.21C.030." RCW 43.21C.110(b).
Pursuant to that statutory authority, Ecology has established a "threshold
determination process" to decide whether an action is a major action significantly
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affecting the environment for which an EIS is required. WAC 197-11-3 30. "If the
responsible official determines there will be no probable significant adverse
environmental impacts from a proposal, the lead agency shall prepare and issue a
determination ofnonsignificance (DNS)." WAC 197-11-340(1). Ifthe responsible
entity issues a DNS, then no EIS is required. See generally WAC 197~11-330.
b. Appeals of Threshold SEPA Determinations
A county or other entity 1 charged with making SEP A determinations may
choose whether or not to provide an internal appeals process for challenging its
determinations. See WAC 197-11-680(2) ("Agencies may establish procedures for
such an appeal, or may eliminate such appeals altogether, by rule, ordinance or
resolution."). If the entity permits an appeal of the threshold SEPA determination,
however, that appeal must be tied to the underlying government action-for
example, the government decision to grant or deny a CUP. RCW 43.21C.075; WAC
197 -11-680(3 )(v) ("If an agency does not provide for a hearing or appeal on the
underlying governmental action (either a hearing on the agency's recommendation
or an agency appeal hearing after the decision is made), the agency may not hold a
SEPA administrative appeal, except [under circumstances not implicated here].").
1
Counties, local governments, and agencies are treated interchangeably under
chapter 43.21C RCW. See RCW 43.21C.030.
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In other words, an agency or local government cannot provide an appeal of only the
SEP A threshold determination. State law permits the locality or agency to provide
a SEP A appeal procedure only if the locality or agency also provides {or a hearing
on the action to which the SEP A determination relates.
Moreover, the government entity permitting the SEPA appeal "[s]hall
consolidate an appeal of [SEP A] determinations ... with a hearing or appeal on the
underlying governmental action by providing for a single simultaneous hearing."
RCW 43.21C.075(3)(b). Thus state law requires that if a local government opts to
provide a SEP A appeal, that appeal must occur simultaneously with a hearing on the
underlying action. Moreover, and importantly for this case, a SEP A appeal must
"provide for the preparation of a record for use in any subsequent appeal
proceedings," and an "adequate record consists of findings and conclusions,
testimony under oath, and taped or written transcript." RCW 43.21C.075(3)(c).
RCW 36.70B.060 lays out the requirements for SEPA appeals if local
governments choose to provide them. Under RCW 36.70B.060(6), "if a local
government elects to provide an appeal of its threshold determinations or project
permit decisions, the local government shall provide for no more than one
consolidated open record hearing on such appeal." (Emphasis added.) "The local
government need not provide for any further appeal," but if it does provide a further
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appeal, "it shall be a closed record appeal before a single decision-making body or
officer." Id.
An "open record hearing" is defined as "a hearing, conducted by a single
hearing body or officer authorized by the local government to conduct s~ch hearings,
that creates the local government's record through testimony and submission of
evidence and information, under procedures prescribed by the local government by
ordinance or resolution." RCW 36. 70B.020(3). A "closed record appeal" is defined
as "an administrative appeal on the record to a local government body or officer,
including the legislative body,following an open record hearing on a project permit
application when the appeal is on the record with no or limited new evidence or
information allowed to be submitted and only appeal argument allowed." RCW
36.70B.020(1) (emphasis added).
The SEP A provisions of chapter 43 .21 C RCW thus establish that an appeal of
a SEP A threshold determination must be consolidated and simultaneous with a
hearing on the underlying project permit decision, and must provide for the
preparation of a record, including testimony under oath, for use in subsequent
proceedings. The appeals process set out in chapter 36.70B RCW then prescribes
what forms such consolidated appeals must take-i.e., open record or closed record,
and how many of each.
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c. The Parties' Arguments
The parties focus their arguments on the following statutory language: "if a
local government elects to provide an appeal of its threshold determinations or
project permit decisions, the local government shall provide for no more than one
consolidated open record hearing on such appeal." RCW 36.70B.060(6) (emphasis
added). Gibson and Kittitas argue that this means the county is free t6 provide less
than one consolidated open record hearing-that is, none. E.g., Suppl. Br. of Kittitas
County at 6.
Ellensburg Cement responds that the statute cannot mean what Kittitas argues
it means because, essentially, it would be absurd and contrary to due process to have
a closed record appeal without any underlying open record hearing to create a record
in the first place. 2 The Court of Appeals agreed with Ellensburg Cement. Ellensburg
Cement, 171 Wn. App. at 713. But, as Kittitas points out, the legislature did not pass
a statute saying "one and no more than one"; the statute states "no more than one."
2
We note that if the county chose to offer no appeal at all, as the relevant statutes
permit, then the appeal would go directly to superior court through LUPA. LUPA appeals
are generally closed record appeals, so one might assume that the same result could occur
simply by the county exercising its undisputed option not to provide an appeal. However,
LUPA itself guards against this possibility: review is on a closed record only where "the
parties to the quasi-judicial proceeding had an opportunity consistent with due process to
make a record on the factual issues." RCW 36.70C.120(1). Otherwise, "the record for
judicial review may be supplemented by evidence of material facts that were· not made part
of the local jurisdiction's record." RCW 36.70C.l20(3).
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RCW 36.70B.060(6). And "no more than one" does indeed encompass both one and
none.
Ellensburg Cement contends that such an interpretation would be inconsistent
with the statutory definitions of "closed" and "open" record hearings. A "closed
record appeal" is defined in part as "following an open record hearing." RCW
36.70B.020(1). Thus, if Kittitas never had an open record hearing, it cannot, by
definition, provide a "following" closed record appeal. Moreover, an "open record
hearing" is defined as a hearing "that creates the local government's record through
testimony and submission of evidence and information." RCW 36.70B.020(3). If
the record is never created in an open record hearing, then, again by definition, there
is no record created upon which to hold a closed record appeal.
The county responds that in fact its ordinances establish a procedure that is
neither an "open record hearing" nor a "closed record appeal" under the statutory
definitions, but is, instead, its own special administrative process. Kittitas asserts
that it is actually "offering an administrative appeal based solely upon the record
used to make the decision appealed." Suppl. Br. of Kittitas County at 5. In other
words, the county argues it is free to create any appellate procedure it wants as long
as it does not violate the statutory command that it does not have "more than one"
open record hearing. RCW 36.70B.060(6). Instead, the county argues, it provides
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neither an open record hearing nor a closed record appeal, and that is not a violation
of the statute.
d. The County's Plain Language Argument Conflicts with Related
Statutes and the Statutory Scheme as a Whole
The county's argument, which is fundamentally an argument based on the
plain language of the statute, has some merit; "no more than one" does, literally,
encompass both one and none. But we do not stop with literal, word-by-word
interpretation bereft of context. Instead, we interpret a statute's plain meaning in
light of "related statutes which disclose legislative iritent about the provision in
question." Campbell & Gwinn, 146 Wn.2d at 11. And in this case several related
statutes substantially undermine Kittitas's and Gibson's position.
The first related statute is RCW 36.70B.l20, a statute that addresses a
consolidated permit review process not at issue here. Although RCW 36.70B.120
does not apply directly to this case, it incorporates by reference the statute that we
must interpret, RCW 36.70B.060(6), as follows: "if a project action requires project
permits from more than one category, the local government shall provide for
consolidated permit review with a single open record hearing and no more than one
closed record appeal as provided in RCW 36. 70B. 060." RCW 36.70B.l20(2)
(emphasis added). RCW 36.70B.120(2) thus interprets RCW 36.70B.060 as
providing for "a single open record hearing and no more than one closed record
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appeal." Id. This suggests that the legislature did in fact intend RCW 36.70B.060
to provide for "a single open record hearing," as opposed to "one or zero open record
hearings," as the county and Gibson contend.
The second related statute is RCW 43.21C.075(3)(b). Under SEPA, if a
county provides an appeal from its SEP A determination, the county must
"consolidate an appeal of [SEP A] determinations ... with a hearing or appeal on the
underlying governmental action by providing for a single simultaneous hearing."
RCW 43.21C.075(3)(b) (emphasis added). But the county here held an open record
hearing on the CUP directly after its closed record hearing on the SEP A
determination. As a practical matter, if there is both a SEP A appeal and a hearing
on the underlying action, it is evident that the two issues cannot literally be heard
simultaneously. Further, as a practical matter, it is logical to hear and decide a SEPA
appeal prior to hearing and deciding the underlying action. The county, though, did
not just hold the hearings sequentially; it held one hearing under one set of rules (a
closed record hearing on the SEP A appeal) followed by another hearing under
another set of rules (an open record hearing on the CUP). That procedure contradicts
the statutory requirement that the SEP A appeal be consolidated and simultaneous
with the underlying CUP hearing. This consolidation requirement also suggests that
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the legislature intended RCW 36.70B.060 to provide for at least one open record
hearing, contrary to the county's and Gibson's contention.
Third, and most important for interpreting the statute at issue, RCW
43.21C.075(3)(c) states that an agency providing a SEPA appeal must "provide for
the preparation of a record for use in any subsequent appeal proceedings, and shall
provide for any subsequent appeal proceedings to be conducted on the record,
consistent with other applicable law." Moreover, an "adequate record consists of
findings and conclusions, testimony under oath, and taped or written transcript." I d.
At a minimum, then, the consolidated hearing on the SEP A appeal and the
underlying action must provide for introduction of testimony under oath. That
requirement is consistent with the definition of an "open record hearing" in ch.
36.70B RCW, which "creates the local government's record through testimony and
submission of evidence and information, under procedures prescribed by the local
government by ordinance or resolution." RCW 36.70B.020(3). The requirement of
testimony under oath is inconsistent with Kittitas's assertion that it may create its
own administrative procedure, which is neither an open record hearing nor a closed
record appeal, and which does not provide for any testimony.
The principle of expressio unius est exclusio alterius compels the same
conclusion. "'Where a statute specifically designates the things or classes of things
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upon which it operates, an inference arises in law that all things or classes of things
omitted from it were intentionally omitted by the legislature under the maxim
expressio unius est exclusio alterius-specific inclusions exclude hnplication. '"
Landmark Dev., Inc. v. City of Roy, 138 Wn.2d 561, 571, 980 P.2d 1234 (1999)
(quoting Washington Natural Gas Co. v. Pub. Util. Dist. No. 1 ofSnohomish County,
77 Wn.2d 94, 98, 459 P.2d 633 (1969)). Kittitas's assertion that it may create its
own proceeding that does not appear in the statute runs contrary to this canon of
construction. The statutory scheme defines two proceedings: (1) an "[o]pen record
hearing" that creates a record with testimony, RCW 36.70B.020(3); and (2) a
"[c]losed record appeal" that follows an open record hearing, RCW 36.70B.020(1).
But, as Kittitas admits, Kittitas's SEPA proceeding in this case was neither an open
record hearing nor a closed record appeal. Under the expressio unius canon,
therefore, the legislature's inclusion of only two types of hearings precludes Kittitas
from creating its own different type of hearing.
In addition, Kittitas's argument that it may create its own proceeding, if
accepted, could undermine the purpose of the SEP A appeal scheme. The scheme
was enacted in part to address the problem that the "increasing number of local and
state land use permits and separate environmental review processes required by
agencies has generated continuing potential for conflict, overlap, and duplication
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between the various permit and review processes." RCW 36.70B.Ol0(2). If each
agency may create procedures not contemplated by the statutory scheme, the
problem the scheme was meant to address will be exacerbated rather than alleviated.
To sum up, the county, because it has chosen to provide a procedure for
appealing SEP A determinations, is required to "consolidate an appeal of [SEP A]
determinations ... with a hearing or appeal on the underlying governmental action
by providing for a single simultaneous hearing." RCW 43.21C.075(3)(b). That
same SEP A appeal· procedure also " [s]hall provide for the preparation of a record
for use in any subsequent appeal proceedings" and an adequate record must include
"testimony under oath." RCW 43.21 C.075(3)(c). That scheme contemplates at least
one open record hearing on a SEP A appeal. Read in context with those statutes, as
it must be, RCW 36.70B.060(6) then limits the number of such open record hearings:
the county "shall provide for no more than one consolidated open record hearing on
such appeal." If it chooses to provide a further appeal, "it shall be a closed record
appeal before a single decision-making body or officer." !d. And the county may
"provide for no more than ... one closed record appeal." RCW 36.70B.050(2). As
a whole, the statutory scheme requires that a county that chooses to provide an appeal
of its SEPA determination must provide a single simultaneous open record hearing
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on both the SEP A determination and the underlying action, followed by an optional
single closed record appeal.
Instead, Kittitas here provided a closed record hearing-a process the county
claims is altogether different from anything contemplated in the statutory scheme
and therefore not governed by the statutes-on the SEP A determination, followed
by an open record hearing on the underlying CUP. That is not permissible under the
statutory scheme interpreted as a whole and is contrary to the legislature's purpose
in enacting the scheme. As explained, the statutes, read together, require at least one
hearing on a SEPA appeal that includes "testimony under oath." RCW
43.21C.075(3)(c). That is consistent with the Court of Appeals' decision that the
statutory language "is based on the assumption that there will be at least one open
hearing." Ellensburg Cement, 171 Wn. App. at 711. Kittitas in this case "engaged
in unlawful procedure or failed to follow a prescribed process." RCW
36.70C.130(1)(a). 3 We therefore affirm the Court of Appeals on this issue.
3 Under the statute, procedural errors may be harmless. RCW 36.70C.l30(1)(a).
The parties do not raise the issue of harmlessness, but our review of the record suggests
that the closed record proceeding that took place here was not harmless error. A board
member stated during deliberations that "I'm just trying to take in all this stuff. Makes it
tough when you can't ask questions." CP at 34. Another board member replied; "Well;
we need to move this along." !d. Immediately thereafter, the board voted to deny the
SEPA appeal. Under the circumstances, the county's failure to follow the record-creating
procedure mandated by state law was not harmless.
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III. WHETHER THE COURT OF APPEALS FAILED To PROVIDE PROPER
DEFERENCE TO LOCAL DECISIONMAKERS BY HOLDING THAT ROCK
CRUSHING WAS NOT PERMITTED BY THE ZONING REGULATIONS IN
PLACE AT THE RELEVANT TIME
A-20 is an agricultural zone in Kittitas County allowing graveLextraction as
a conditional use. It also formerly allowed, as a "permitted" use, the "[p]rocessing
' .
of products produced on the premises." Former KCC 17.29.020(A)(13) (2009).
Gibson argues 4 that he had a CUP to extract gravel and hence gravel is a product
produced on the premises. Further, he argues, rock crushing processes the gravel.
Therefore, he concludes, rock crushing is a permitted use for A-20 land that has an
associated CUP to extract gravel, despite the fact that no agricultural zone expressly
permits rock crushing as a conditional use or otherwise.
The Court of Appeals held that this was an incorrect interpretation of the
zoning ordinances. It determined that, because the use "'processing of products
produced on the premises"' was a use exclusive to the four agricultural zones, the
use "encompasses [only] products produced by agricultural means." Ellensburg
Cement, 171 Wn. App. at 705. Since gravel is not produced by agricultural means,
the appellate court reasoned, "and only gravel excavation is listed as a conditional
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4 Only Gibson petitioned the court for review on this particular issue. Kittitas's
petition and supplemental briefing are limited to the open record hearing issue.
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use, the logical conclusion is that rock crushing is not allowed in an A-20 zone
because it is not listed as a permitted or conditional use." ld. at 706. .
Gibson does not contest that the Court of Appeals' interpretation is plausible.
Instead, he argues that the opposite interpretation by Kittitas's hearing board was
also plausible. Suppl. Br. of Pet'r Gibson at 16. Gibson asserts that courts must
show deference to local decisionmakers' interpretations of their own regulations,
and that the Court of Appeals therefore erred by failing to show deference to the
county board's plausible interpretation.
Under LUP A, a court may overturn a land use decision that 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)(b).
The statute does not require a court to show complete deference, but rather,
"such deference as is due." ld. Thus, deference is not always due--in fact, even a
local entity's interpretation of an ambiguous local ordinance may be rejected. See
Sleasman v. City of Lacey, 159 Wn.2d 639, 646, 151 P.3d 990 (2007). Instead, the
interpreting local entity "bears the burden to show its interpretation was a matter of
preexisting policy." ld. at 647 (citing Cowiche Conservancy v. Bosley, 118 Wn.2d
801, 815, 828 P.2d 549 (1992)). No deference is due a local entity's interpretation
that "was not part of a pattern of past enforcement, but a by-product of current
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litigation." Id. at 646. A local entity's interpretation need not "be memorialized as
a formal rule" but the entity must "prove an established practice of enforcement."
. I d. (citing Cowiche, 118 Wn.2d at 815).
Here, Kittitas's interpretation of its zoning ordinance was a by-product ofthe
current litigation. Neither Gibson nor Kittitas has attempted to show that there was
any preexisting policy supporting the county's interpretation of those zoning
regulations. The transcript of the hearing shows the contrary-that the interpretation
was entirely ad hoc. For example, one board member stated, "Well, we can't go
back to the county commissioners to get their opinion on this, you know?" CP at
73. Another said, "Well, it's also difficult because this Board is not the Board that
created the ordinance." CP at 74. One board member even admitted, regarding the
proper interpretation of the ordinance, "I'm confused." CP at 75. The transcript
thus reflects the absence of any preexisting policy regarding interpretation of the
zoning ordinance at issue. There is no deference due to the hearing board's
interpretation in this case.
In the absence of deference to local decisionmakers, the Court of Appeals'
interpretation of the zoning ordinances is significantly more plausible than Gibson's
interpretation. First, "rock crushing" is not listed as a conditional use on A-20 land;
only "[s]and and gravel extraction" is listed. Former KCC 17.29.030(25) (2012),
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Ellensburg Cement Products, Inc. v. Kittitas County, et al., No. 88165-1
repealed by KCC Ordinance 2013-001. In other Kittitas zoning ordinances, such as
the one describing the "Rural 5" zone, "rock crushing" is expressly listed as a
conditional use alongside "sand and gravel extraction." Former KCC 17.30A.030(5)
(2012), repealed by KCC Ordinance 2013-001. If the county had intended to permit
"rock crushing" on A-20 land, it defies reason that it would not have listed "rock
crushing" as a conditional use there, as it did for "Rural 5" land. The fact that the
county did not list "rock crushing" alongside "sand and gravel extraction" as
conditional uses on A-20 land, as it did elsewhere in its zoning code, strongly
suggests that "rock crushing" is not permitted at all on A-20 land.
Further, the use category "processing of products produced on the premises"
appears only in agricultural zones. This strongly suggests that "products produced"
refers to agricultural products. If "products" was interpreted as broadly as Gibson
would like, then other permitted uses would be rendered superfluous. For example,
there would be no reason to provide for "[h]ay processing," former KCC
17.29. 020( 1)(v), or "the processing of locally harvested forest crops using portable
equipment," KCC 17.29.020(1)(n), since both would be encompassed by
"processing of products produced on the premises." Even the extent to which that
use category permits agricultural processing is called into question by the zoning
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code's inclusion of"processing plants for agricultural products" as a conditional use
on A-20 land. Former KCC 17.29.030(11).
Ellensburg Cement has successfully shown, as LUP A reqmres, that the
county's decision was based on "an erroneous interpretation of the law." RCW
36.70C.130(1)(b). We hold that no deference was due the local decisionmakers in
this case and affirm the Court of Appeals' decision that "rock crushing" was not a
permitted use on A-20 land under former KCC 17.29.020 and former KCC
17.29.030.
CONCLUSION
Kittitas's SEP A appeal procedure did not comport with state law. A statute
does state that Kittitas must provide "no more than one" open record hearing, which
on its face encompasses both "one" and "none." But the statutory scheme as a whole
makes clear that Kittitas must provide at least one open record hearing that includes
testimony under oath. Because Kittitas did not provide such an open record hearing
in this case, the Court of Appeals correctly held that the county's procedure violated
·state law. Finally, the Court of Appeals correctly held that rock crushing was not a
permitted use on Gibson's land under the zoning regulations in place at the time.
We affirm the Court of Appeals.
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Ellensburg Cement Products, Inc. v. Kittitas County, et al., No. 88165-1
WE CONCUR:
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