February 11, 2014

Stuck Between a Rock and a Crusher


In a tough aggregate case, the Washington Supreme Court ruled against Kittitas County, for two reasons.  First, when the county SEPA approval was appealed, the county board did not allow testimony or evidence to be provided at the appeal hearing.  The court ruled that because the county procedure failed to provide an opportunity for project opponents to submit evidence and testify, it violated state law.  It also faulted the county for not combining the SEPA appeal hearing with the scheduled appeal hearing for the underlying land use approval.

The second issue  was whether rock crushing was allowed in the county’s A-20 agricultural zone.  The zone allowed gravel extraction as a conditional use and allowed “processing of products produced on the premises” as a permitted use.  The county concluded that the crushing was processing of the extracted gravel.  The disingenuous court noted that rock crushing was listed as a use in other zones, but not in the A-20 zone.  It emphasized that processing of products produced on the premises was only allowed in the county’s four agricultural zones, and it divined that such processing must be limited to processing of agricultural products.  The court held that in order to defer to the county interpretation allowing the rock crushing use, there must have been a prior county policy allowing rock crushing.  It pointed to board member uncertainty at the hearing as evidence there was not such a policy.

For industry veterans, the idea that gravel extraction is allowed but rock crushing is prohibited boggles the mind.  The judges must imagine that the gravel comes out of the ground neatly sorted for immediate distribution. Most likely this was simply an oversight when the county drafted its code.  Lesson number one is to be certain that the code expressly allows each component of your desired use, lest an opponent (in this case a business competitor) challenges your land use approval.   Lesson number two is that for SEPA determinations, project opponents are entitled to submit evidence and to provide testimony for the record at a public hearing, and a SEPA appeal hearing must be combined with a hearing on the underlying land use approval if such a hearing is pending.

Ellensburg Cement Products, Inc. v. Kittitas County, et al, No. 88165-1.

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