Nisqually Delta Ass'n v. City of DuPont

Dolliver, C.J.

Plaintiffs Nisqually Delta Association and Washington Environmental Council appeal the Superior Court judgment affirming the approval by the Shorelines Hearings Board (SHB) of shoreline substantial development and conditional use permits for the proposed forest products export facility of defendant Weyerhaeuser Company (Weyco) to be built within the city of DuPont.

Plaintiffs raise narrow procedural issues involving notice requirements under the State Environmental Policy Act of 1971, RCW 43.21C (SEPA); the Shoreline Management Act of 1971, RCW 90.58 (SMA); compliance with the Shorelines Master Program of the City of DuPont, adopted pursuant to the SMA; and admissibility of certain evidence at the SHB hearing. We find no significant procedural irregularities and, therefore, affirm the judgment of the trial court and the SHB.

The city of DuPont is in Pierce County near the northern edge of Thurston County. It is within the Nisqually Delta, an area designated by the SMA as being a shoreline of "statewide significance". RCW 90.58.030(2)(e)(ii)(A). The City is, however, to the north of, and outside, the Nisqually National Wildlife Refuge area. The site of the proposed export facility is within the urban classification of the City of DuPont's Shorelines Master Program (DSMP), located on land once owned by E. I. duPont DeNemours & Company, Inc. (Dupco). Dupco manufactured explosives on a *723portion of the tract (1,200 acres) from 1909 to 1975, and shipped explosives from an adjacent dock. Fort Lewis used and continues to use approximately 600 acres of the site as a training area, sanitary landfill, and rifle range.

In 1976, Weyco proposed construction of an export facility at DuPont for shipping its forest products. Weyco now owns approximately 3,200 acres within the city. The proposed facility would occupy approximately 250 of those acres and include the following: 140- by 1,320-foot concrete dock with loading equipment; 57- by 500-foot concrete causeway; marshaling area and terminal for receiving, handling, and storage; and road and rail access. The dock, as finally proposed, would be located approximately one-half mile from the Nisqually National Wildlife Refuge, while the remaining upland facilities would be located one-half mile from Puget Sound.

Weyco's proposal for an export facility triggered SEPA. Pursuant to SEPA guidelines, Weyco submitted a completed environmental checklist to DuPont which assumed lead agency responsibility for the proposal. DuPont determined the proposal would require an environmental impact statement (EIS). Predraft consultation procedures were initiated, and in August 1978 DuPont published the draft EIS for the export facility. The draft was circulated among various federal, state, and local agencies and organizations for their comments and suggestions on the project. Copies of the draft EIS were sent to plaintiffs. Based on the testimony obtained through public hearings and comments received during the circulation period, DuPont revised the draft and issued the final EIS for the export facility in February 1979.

The adequacy of the final EIS has been adjudicated and is not at issue here. The Department of Ecology (DOE) determined that the final EIS met all legal requirements after lead agency responsibility was transferred to it in March 1979. Plaintiffs challenged the adequacy of the EIS in Pierce County Superior Court, where it was upheld. Plaintiffs have since withdrawn their appeal of the trial *724court's judgment.

The final EIS described and evaluated both a "proposed" and an "alternative" location. The alternative location was further to the south, closer to the wildlife refuge. The proposed northern location, however, crossed the jurisdictional boundary between DuPont and Pierce County, and consequently the boundary between the "urban" shoreline designation in DuPont and the "conservancy" shoreline designation in the Pierce County Shorelines Master Program.

As a substantial shoreline development, under the SMA, Weyco's proposal requires a permit issued by the controlling jurisdiction (the City of DuPont). Such a permit must be consistent with DuPont's master program, which in turn must be consistent with state policy. RCW 90.58.140. In August 1978, Weyco applied for a permit for construction of its dock at the northern proposed location described in the EIS, but because the proposed location extended into Pierce County's conservancy shoreline, Weyco altered its plans. In January 1981, it submitted to DuPont another application for a shoreline substantial development permit. In its application, Weyco proposed to locate the dock portion of the facility between and overlapping the proposed northern and alternative southern dock locations, entirely within DuPont city limits. This location will be referred to as the "final" or "application" proposal. The dimensions of the facility are the same in each proposal.

Because the application showed a dock location not precisely depicted in the EIS, DuPont asked DOE to review the EIS to determine whether the design change warranted preparation of a supplemental EIS. DOE did so, and informed DuPont the EIS adequately described and discussed the environmental impacts of the final proposal. No formal notice of any change in the proposed dock location was given to any of the more than 20 agencies receiving the final EIS.

On January 21, 1981, upon due notice as required by RCW 90.58.140(4), the DuPont City Council held a public *725hearing on the Weyco substantial development application. Weyco, plaintiffs, and other members of the public appeared and submitted oral and written testimony. On February 18, 1981, the Council unanimously voted to issue the permit after imposing specific conditions on the proposal to mitigate adverse effects. Plaintiffs filed a request for review with the SHB challenging the substantial development permit and alleging a conditional use permit was required under the DSMP.

The significance of a conditional use permit lies in the requirement that the local permit be submitted to DOE for approval or disapproval. RCW 90.58.140(12). The SHB noted that DOE's original approval of the DuPont master program did not limit the types of development in the urban designation. However, inclusion of conditional use permits in the city's master program gave DOE flexibility and control over subsequent developments and their impacts on the Nisqually Delta.

Weyco then requested DuPont to reprocess its shoreline permit application under the conditional use procedures. Notice was again published and posted and a public meeting held. The Council unanimously approved the conditional use permit. The permit was approved by DOE in August 1981. In October 1981, plaintiffs filed another request for review challenging DuPont's issuance of the permits and DOE's approval.

Plaintiffs' appeals were consolidated and hearings held before the SHB for 6 days in January 1982. In May 1982, the SHB confirmed the issuance of the permits, but placed several additional conditions on the proposal.

Plaintiffs sought judicial review under RCW 34.04-.130 in Thurston County Superior Court. The trial court affirmed the SHB decision to issue the shoreline permits. A transfer from Court of Appeals, Division Two, was granted and direct review accepted by this court. The administrative procedure act (RCW 34.04.130) governs judicial review of SHB decisions. RCW 90.58.180(3). This court applies the "clearly erroneous" review standard of RCW 34.04.130(6)(e) *726directly to the challenged administrative decisions. Department of Ecology v. Ballard Elks Lodge 827, 84 Wn.2d 551, 555, 527 P.2d 1121 (1974). Under this standard, "agency action may be reversed where the reviewing court is firmly convinced that a mistake has been committed, even though there is evidence supporting the action." Hayes v. Yount, 87 Wn.2d 280, 286, 552 P.2d 1038 (1976). Additionally, when reviewing such decisions, we have recognized and deferred to the expertise of the administrative agency. Hayes v. Yount, supra at 289.

In our review of the decisions below, it is tempting to rhapsodize about the pristine beauty of the Nisqually Delta. It is also tempting to express the wish that time and human hands not disturb its natural tranquility. This is not, however, the task before this court. Rather, our obligation is to interpret state and local laws as they apply to the issuance of permits to build an export facility within the city of DuPont in an area designated for urban uses.

In applying the law, we look first to its overall policy. The SMA does not prohibit development of the state's shorelines, but calls instead for "coordinated planning . . . recognizing and protecting private property rights consistent with the public interest." RCW 90.58.020. Designation of a shoreline as of "state-wide significance" does not prevent all development. That designation provides greater procedural safeguards, but permits limited alteration of the natural shorelines, with priority given to "residences, ports, shoreline recreational uses including . . . industrial and commercial developments which are particularly dependent on their location on or use of the shorelines of the state . . ." RCW 90.58.020.

We next address the specific issues raised by plaintiffs as to adequate notice, compliance with the DSMP, and the admissibility of evidence.

I

Notice

Plaintiffs contend defendants' notice in applying for sub*727stantial development and conditional use permits was procedurally defective. First, plaintiffs point to defendants' notice of application, which referred the public to the final EIS for a "complete project description". The final EIS depicted the "proposed" and "alternative" dock sites which Weyco was considering before 1981. As noted above, however, the site for which application was made actually overlapped both the "proposed" and "alternative" sites. Plaintiffs argue this difference misled the public.

DuPont, however, complied with the SMA public notice requirements. RCW 90.58.140(4); WAC 173-14-070. Notice of Weyco's permit application was published in the Tacoma News Tribune and posted in five places on the property. The description of the dock location given in the notice was patterned exactly after WAC 173-14-070. Papers on file at DuPont City Hall indicated the final proposed dock location.

The purpose of notice statutes is to apprise fairly and sufficiently those who may be affected of the nature and character of an action so they may intelligently prepare for the hearing. Barrie v. Kitsap Cy., 84 Wn.2d 579, 585, 527 P.2d 1377 (1974). Here, the final EIS adequately disclosed the impacts of both the "proposed" and "alternative" dock locations. The SHB found that there were "no significant differences" shown in impacts between the dock locations described in the EIS and the location in the application. Plaintiffs make no showing anyone was actually misled by the application nor unprepared for the hearings. Under these circumstances, notice was adequate.

Second, plaintiffs assign error to the fact defendants failed to notify adjacent jurisdictions of the pending permit application. No mention of notice to adjoining jurisdictions is made in RCW 90.58.140(4), the SMA notice statute. Plaintiffs argue nonetheless that such notice is mandated by Save a Valuable Env't v. Bothell, 89 Wn.2d 862, 576 P.2d 401 (1978). Under Save a Valuable Env’t, ”[w]here the potential exists that a zoning action will cause a serious environmental effect outside jurisdictional borders, the *728zoning body must serve the welfare of the entire affected community." Save, at 869. The "affected community" is determined on the basis of the seriousness of the impact, and that impact must be direct.

To require additional notice, plaintiffs must show the final dock location will have some serious impact on adjoining jurisdictions over and above the impact discussed in the EIS. Plaintiffs have not done so. Moreover, there has been no expression of opposition from adjoining jurisdictions. See Save, at 868.

Third, plaintiffs contend defendants erred in not circulating a written statement disclosing they were using the final EIS to suffice for an environmental analysis on the final dock location. Plaintiffs rely on SEPA regulations under WAC 197-10-660. WAC 197-10-660(2) states if a "new proposed action" will have an impact on the environment that was not adequately analyzed by the former EIS, then the lead agency shall prepare a supplemental EIS. Supplementation is also required under WAC 197-10-660(1)(b) where an intervening change in circumstances will make the previous EIS misleading when applied to the "new proposed action". However, if the action will not have an environmental impact substantially different from the earlier proposed action, the lead agency may prepare a written statement so indicating, and it is not required to prepare a new or supplemental draft or final EIS. WAC 197-10-660(3).

Plaintiffs contend the change in dock location amounts to a "new proposed action", necessitating either a supplemental EIS or a written statement indicating that one is not required. Defendants counter that the application does not constitute a new proposal. They rely on the SHB finding that there were no significant differences between the earlier proposals and the final proposal. See Barrie v. Kitsap Cy. Boundary Review Bd., 97 Wn.2d 232, 234, 643 P.2d 433 (1982).

The application site is an amalgam of the prior proposal and the alternative proposal, and its dimensions remain *729unchanged. It cannot fairly be considered a new proposal requiring either a supplemental EIS or a written statement issued by DOE. The final EIS fully evaluated the impacts of both earlier proposals. DOE properly concluded that the final proposal was neither a substantial change nor a new proposal.

II

Shorelines Master Program

The DuPont Shorelines Master Program was approved by DOE in 1975, pursuant to WAC 173-19-3503; RCW 90.58.080, .090. The DSMP permits ports and water related industry within its urban designation, but subjects them to conditional use requirements. The DSMP and the DOE (WAC 173-16-070(1)) conditional use guidelines are similar. The DOE guidelines provide, in pertinent part:

Conditional use permits will be granted only after the applicant can demonstrate all of the following:

(a) The use will cause no unreasonably adverse effects on the environment or other uses.

(b) The use will not interfere with public use of public shorelines.

(c) Design of the site will be compatible with the surroundings and the Master Program.

(d) The proposed use will not be contrary to the general intent of the master program.

The DSMP changes are as follows: In subsection (a), the word "unreasonably" has been omitted from the DSMP to read "no adverse effects on the environment or other uses." In subsection (b), the word "not" has been replaced with "in no way" and the word "public" has been replaced by "the" to read "will in no way interfere with public use of the shorelines." In subsection (c), the words "and the Master Program" have been eliminated. "Adverse effect" is nowhere defined.

Plaintiffs contend these changes in language show that DuPont intended to make its conditional use criteria more restrictive than the DOE guidelines. They argue that the SHB erred in applying a "reasonableness" standard to the *730DSMP requirements. In approving the permit, the SHB found adverse effects, "but not unreasonably so." Plaintiffs argue this violates the legislative intent behind DuPont's omission of the word "unreasonably" and creates an ad hoc amendment. In short, plaintiffs propose a literal interpretation of the "no adverse effects" language.

Defendants, on the other hand, assert the SHB correctly interpreted DSMP conditional use criteria. They maintain their export facility not only complies with, but furthers, the DSMP. Moreover, defendants contend a literal interpretation of "no adverse effects" would prohibit construction of any port facility and is inconsistent with the area's urban designation.

The question, then, is whether a literal interpretation of the conditional use requirements ("no adverse effects") is consistent with the city council's intent as expressed in the DSMP as a whole. We view the locally adopted plan as we would a statute. In interpreting a statute, it is the duty of the court to ascertain and give effect to legislative intent and purpose, as expressed in the act. The act must be construed as a whole and, if possible, the provisions of the act should be harmonized to insure proper construction. Tommy P. v. Board of Cy. Comm'rs, 97 Wn.2d 385, 391, 645 P.2d 697 (1982).

The introductory comments to the DSMP express the following intent:

"T]his program is directed to long range planning in the order of 20 - 30 years into the future. During this period we envision significant development of the property for industrial, commercial, residential and recreational uses.

(Italics ours.) The general goal of the DSMP is:

[T]o develop the full potential of DuPont's shoreline in accord with the unusual opportunity presented by its relation to the City and surrounding area, its natural resources values, and its unique aesthetic qualities offered by water, topography, views, and its maritime character. Any such development would be ordered and diversified with the goal of preserving and enhancing the *731environment to the end that it shall return to the community, state, private property owners, and public-at-large the greatest good compatible with the least possible disturbance to the environment.

To achieve this goal, nine policies are stated:

1. To maximize efforts to control and eliminate shoreline pollution — air, water, and land.

2. To restrict mineral extraction or exploration on or adjacent to DuPont's shoreline and the waters of Puget Sound in general.

3. To be concerned with and to seek ways to satisfy the growing need for adequate recreational facilities.

4. To be concerned with and to seek ways to provide modern competitive marine terminal facilities for world trade with due concern for the environment.

5. To encourage preservation and enhancement of fish and wildlife in this area for future generations in cooperation with State and Federal agencies.

6. To define all appropriate shoreline uses and to assure that all such uses are compatible with the site, the surrounding area and the environment.

7. To establish and maintain reasonable structural standards for maintenance and development of Du Pont's shoreline.

8. To require that all shoreline uses conform to all applicable federal, state and local laws and regulations relating to environmental quality and resource protection.

9. For that portion of the shoreline that is designated as "Shorelines of Statewide Significance", the following specific policies apply:

a. Recognize and protect the state-wide interest over local interest.

b. Preserve the natural character of the shoreline.

c. Result in long-term over short-term benefit.

d. Protect the resources and ecology of shorelines.

e. Increase public access to publicly owned areas of the shorelines.

f. Increase recreational opportunities for the public on the shorelines.

(Italics ours.)

Reading the general purpose and policies of the DSMP as a whole we are convinced the slight language differences *732in the DSMP and the DOE conditional use provisions do not support plaintiffs' position. While the DSMP stresses the vital importance of preserving the environment, it recognizes that some commercial and industrial use of the shoreline is necessary and desirable. A literal interpretation of "no adverse effects" would end any development of the DuPont shoreline. The DSMP is an extensive, carefully worded document of 95 pages. It would be wholly unreasonable to read the DSMP language of "no adverse effects" or any other isolated word or phrase in the document so literally as to defeat the overall purpose of the program. We will not do so.

Plaintiffs' counsel at oral argument suggested "the City of DuPont in 1975 took out the word unreasonable and deliberately took it out for reasons of enhanced shoreline protection along these shorelines of the Nisqually Delta." Counsel for DOE, however, more persuasively argued

the average person on the street, who's not a lawyer, is not used to SEPA litigation, commonly puts a balancing or a judgmental feeling within their description of what they conclude is adverse. They balance the pros and the cons. . . . [T] hat's what the average citizen's advisory person who drafted this language would have meant.

Moreover, a balanced reading of the DSMP is consistent with the SMA, from which DuPont received its authority. The SMA declares it to be the policy of the State to foster "reasonable" uses. While the SMA is concerned with protecting against adverse effects to the public health, the land and its vegetation and wildlife, and the waters of the state and their aquatic life, it does not say there can be no adverse effects.

One final observation: Plaintiffs choose to emphasize the phrase "no adverse effects on the environment". The DSMP guideline in question, however, reads " [t]he use will cause no adverse effects on the environment or other uses." (Italics ours.) A moment of reflection will make it evident even the position of the plaintiffs, carried to its logical conclusion, violates the guidelines. Any use would be an *733adverse effect on the environment but to ban any use would have an adverse effect on "other uses".

We choose to avoid a literal reading of "no adverse effects" as it would lead to an inconsistent and absurd result. Surely those who drafted the guidelines did not contemplate such nonsensical consequences from their work. "The spirit or purpose of an enactment should prevail over the express but inept wording." State v. Day, 96 Wn.2d 646, 648, 638 P.2d 546 (1981).

Ill

Evidentiary Ruling

Plaintiffs assert the SHB erred by admitting into evidence studies and correspondence which represented material in DuPont's records on the Weyco proposal. Several of the studies had been commissioned and paid for by Weyco, specifically for the project. The records were admitted as records kept in the regular course of business of the City. The sponsoring witness was Mark Jackson, DuPont City Planner, who was the custodian of the records.

Plaintiffs argue it was prejudicial error to admit the records under the hearsay exception for business records. RCW 5.45. Plaintiffs contend there is no evidence the records were made "at or near the time of the act, condition or event"; Jackson was not a "qualified witness"; the records were not kept in the "regular course of business"; and the court did not "justify its [the records'] admission." RCW 5.45.020.

However, the SHB is not bound to follow the civil rules of evidence. Relevant hearsay evidence is admissible in administrative hearings. Under WAC 461-08-180:

[A]ll relevant evidence is admissible which, in the opinion of the officer conducting the hearing, is the best evidence reasonably obtainable, having due regard for its necessity, availability and trustworthiness. In passing upon the admissibility of evidence, the officer conducting the hearing shall give consideration to, but shall not be bound to follow, the rules of evidence governing civil *734proceedings in matters not involving trial by jury in the superior courts of the state of Washington.

We interpreted a code identical to WAC 461-08-180 in Chmela v. Department of Motor Vehicles, 88 Wn.2d 385, 561 P.2d 1085 (1977). There, we recognized that hearsay evidence may be inadmissible in some circumstances because it lacks circumstantial guaranties of trustworthiness. Chmela, 88 Wn.2d at 393.

In this case, however, there are circumstances of reliability, and the records appear to have been the "best evidence reasonably obtainable". WAC 461-08-180 confers upon the officer some discretion in making this judgment. The SHB was faced with the task of determining the scope of the original EIS and compliance with the SMA. (The adequacy of the original EIS had already been adjudicated.) The information in the records was essential and far more accessible than were the experts themselves. The supervision of various agencies should be seen as affording some guaranty of trustworthiness to the reports. Additionally, plaintiffs had every opportunity to review the reports and present expert testimony of their own to contradict the reports. In light of all this, the SHB did not abuse its discretion in admitting the records as the "best evidence reasonably obtainable".

We conclude that defendants have made no significant procedural errors. We affirm the decisions of the trial court and SHB. The City of DuPont issued valid substantial development and conditional use permits to Weyco.

Brachtenbach, Andersen, Callow, Goodloe, and Durham, JJ., and James and Thompson, JJ. Pro Tern., concur.