Opinion

One Energy Development, LLC v. Kittitas County

Court: Court of Appeals of Washington
Filed: Jul 9, 2019
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 8.2%

The opinion

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) UNPUBLISHED OPINION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

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)

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

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.

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).

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

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

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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

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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.”).

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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;

areas and communities;

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(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

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).

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“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

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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.

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).

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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.

4 IN THE SUPERIOR COURT OF WASHINGTON

KITTITAS COUNTY

ONE ENERGY DEVELOPMENT LLC; and

6 IRON HORSE SOLAR LLC Cause No. 17-2-00075-5

Plaintiffs,

vs.

MEMORANDUM DECISION

KITTITAS COUNTY, a municipal

10 corporation; and KITTITAS COUNTY

BOARD OF COMMISSIONERS; and

"SAVE OUR FARMS! SAY NO TO IRON

12 HORSE!; and CRAIG CLERF AND

PATRICIA CLERF, husband and wife

Defendants.

16 INTRODUCTION

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

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

Commissioners. James Carmody appeared for Defendants Save our

Farms and Craig and Patricia Clerf. After hearing all drguments,

the Court took the matter under advisement in order to review the

record and the pleadings submitted by all parties. The Court has

27 reviewed the voluminous hearing records, state statutes, county

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

01337

2 DISCUSSION

1. Factual Background At issue is the granting or denial

of a Conditional Use Permit for property owned by William Hanson,

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

the adjacent and nearby neighbors are also engaged in farming.

The property owner proposed to lease his property to One Energy

Development LLC and to convert the farmland into a 47.5 acre

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.

The Kittitas County Code provides that a solar farm--which

is designated by the County code in KCC 17.61.010(9) as A "major

alternative energy facilityu-is allowed in the A-20 zoning area

only as a conditional use. KCC 17.61.020(4) (b) . 1 Thus, in order

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

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.

01338

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

review were consolidated into one procedure, pursuant to KCC

lSA.01.010. The SEPA issues went before a Hearing Examiner, who

conducted an open record adjudicative hearing on October 20,

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

Environmental Policy Act threshold determination and issuance of

the Mitigated Determination of Nonsignificance (MONS), and to

make a recommendation to the Board of County Commissioners about

the issuance of th~ conditional use permit (CUP).

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

engendered considerable public interest, particularly among

adjacent and other nearby landowners, and they participated as

allowed by providing letters, testimony, and various documents

for consideration.

After the decision and recommendation of the Hearing

01339

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

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

able to discuss their questions and opinions about the various

issues presented, to deliberate, and eventually to issue a

written decision in the form of Resolution 2017-022, dated

February 7, 2017. The Commissioners, by a vote of two to one,

11 denied the Iron Horse project conditional use permit application.

In Resolution 2017-022, the commissioners listed the

following substantive statements:

"l. 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

19 36.-70A.030 (15)

2. The proposed use in· the proposed location is not

essential or desirable to the public convenience and is

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) )

3. The proposed use in the proposed location would not

28 ensure compatibility with existing neighboring land uses. (KCC

01340

17.60A.015(5).

·4. The proposed use in the proposed location does not

preserve the "rural character" as defined in the Growth

Management Act. (RCW 36. 70A.030(15)) KCC 17.60A.015(7) (B)).

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

9 filing of the Land Use Petition.

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

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

16 decision (with some exceptions). Woods v. Kittitas County, 162

Wn. 2d 597 (2007)

RCW 36.70C.130 sets forth the standards for granting relief

in a LUPA appeal. The court may grant relief only if the party

seeking relief has carried the burden of establishing that one of

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

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

01341

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

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.

RCW 3 6. 7 QC. 13 0 ( 1) •

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.

Deference must be given to the decisions and factual

determinations of the local decision making authority. In this

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

making authority over the granting of conditional use permits is

retained by the BOCC in the code. This reviewing court, thus,

must give substantial deference to the decisions of the BOCC, not

to the Hearing Examiner, which makes findings and decisions

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.

Plaintiff did not cite persuasive authority which would

support giving that deference to the Hearing Examiner because of

01342

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

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

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

5 For the reasons set forth below, this Court finds that the

plaintiff has not established any of the standards necessary to

overrule the determination of the Board of County Conunissioners.

}2 3. Analysis:

Analysis of plaintiff's Statement of Issues is organized

around specific LUPA standards of review.

16 I. THIS LAND USE DECISION WAS NOT OUTSIDE THE AUTHORITY OR

THE JURISDICTION OF THE KITTITAS COUNTY BOARD OF COMMISSIONERS

UNDER RCW 36.70C.130(1) (e).

One Energy argues as part of standard (1) (e) that the BOCC

acted outside of its authority by disregarding the Hearing

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.

Hearing examiner did not have the authority to permit and

01343

authorize a conditional use.

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

indicate, the SEPA review and the CUP review were consolidated

into one hearing, so that the public and the parties and all

interested persons could present testimony or submit evidence at

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

the granting or denial of Conditional use permits in KCC

lSA.01.040 (4) (d). The code provisions regarding this procedure

are set out in the relevant parts of KCC lSA.01.040:

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:

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.

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

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 .

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 .

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.

e. Shoreline substantial development permits that are

5 included in consolidated permit applications that are

subject to Board review and action.

f. Review and provide initial local County approval,

7 denial, or approval with conditions for shoreline

conditional use permits and shoreline variances that

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:

a. All Quasi judicial review processes includintj:

i. applications for preliminary plats

ii. Rezone applications.

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

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.

Integration of the hearings by statute, for purposes of

taking evidence, does not equate to mandating the rubber stamping

of the Hearing Examiner's recorrunendation. This court has found

27 no case law requiring the BOCC to "engage with the findings and

28 conclusions produced by the Hearing Examiner," or to "refute,

01345

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

Moreover, the decision facing the Hearing Examiner regarding

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

determination and does not bind any decision maker on a challenge

to the conditional use permit.

The Commissioners were the only decision makers who did have

authority or jurisdiction to make this land use decision.

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

13 II. THE BOARD OF COUNTY COMMISSIONERS DID NOT FAIL TO

FOLLOW THEIR PRESCRIBED PROCESS IN MAKING THEIR LAND USE

DETERMINATION UNDER RCW 36.70C.130(1) (a).

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

at the commissioner's closed hearing. This procedure tracked the

requirements set out in the code provision above. The plaintiff

has not identified any procedural errors in the process

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

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

Examiner, which was the highest previous entity that made

specific findings, so that the Hearing Examiner became the

highest level finder of fact.

The defendant from Save our Farms counters that a finding of

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

decision. The defendant adds that they were supported by

substantial evidence (which will be taken up in another

argument).

The defendant Kittitas County likewise argues that even if

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

that in this case, the oral record was extensive and clear as to

the final factors upon which the commissioners based their

decision. They also apparently argue that the actual criteria

for conditional use permit review involve subjective general

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

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

agrees with the defendant that the findings made were legally

sufficient.

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

Commissioners had to consider. The last fouf statements of the

resolution, quoted above, which are characterized by the

15 \

plaintiff as conclusions of law, are in reality both findings and

conclusions. They are the only substantive factual statements

listed, and constitute the ultimate reasons that the County

19 commissioners gave to explain their denial of the conditional use

20 permit.

This Court finds these are marginally sufficient as findings

of fact. They lack detail and any citation to the record itself.

However, broad as they are, they are sufficiently specific to

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

01348

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

evidence. A common sense reading of "findings" requirements here

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

commissioners without so requiring. Thus it would be a pointless

gesture to send the matter back for improved findings, and the

Court is not inclined to engage in a pointless gesture.

11 Therefore, plaintiffs have not shown that the Commissioners

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

III. The Resolution 2017-022 is not an erroneous interpretation

of law under RCW 36.70C.130 (1) (b).

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

17.60A.015 (7) (B)." Resolution 2017-022. The definition for

rural character referenced in the County Code from the RCW is:

"(16) "Rural character" refers to the patterns of land use

and development established by a county in the rural element I

of its comprehensive plan: f

(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

areas;

28 , (c) That provide visual landscapes that are traditionally

found in rural areas and communities;

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).

This standard must be reviewed after allowing for such

deference as is due the construction of a law by a local

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

RCW. The Board is the governing legislative body in a largely

rural county, which has considerable experience in discussing and

determining rural character. And the Board is singly tasked with

deciding the issuance of Conditional Use Permits, and thus must

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

that the Board did not misinterpret the law.

Plaintiffs contend that the commissioners misapplied the

"rural character" provision of the Kittitas County Code

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

01350

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

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

use can demonstrate to the satisfaction of the finder of fact

that there is compliance with each of the conditional use permit

criteria at that particular site. Solar farms are only allowed

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

conditional use permit. Preserving rural character is one of the

conditions that must be met, and the burden of showing that it

does so at this specific site rests with the applicant proponent

of the solar farm.

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

place, even in the same zoning. One component of rural character

refers to "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." There could be an almost

27 infinite number of configurations of project and siting that

28 could yield vastly different results from each other.

01351

Additionally, since compliance with the Comprehensive Plan

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

the Commissioners to consider rural character as it is discussed

in the comprehensive plan during the site specific analysis. The

definition in the Growth Management Act at RCW 36.70A.030 is:

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

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

20 surface water recharge and discharge areas

22 It is not an erroneous interpretation of law, specifically rural

character, to consider whether a massive industrial project of

this nature, encompassing 47.5 acres, eight feet high with large

mechanized racks to follow the sun, set in the middle of treeless

productive farm fields preserves rural character, interferes with

'28

visual compatibility of the surrounding area, or contains a built

01352

environment which predominates over the natural landscape.

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

threatened by the project. However, in discussing rural

character, the relevant criteria for the Commissioners in KCC

17.60A.015 were:

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 ....

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.

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;

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. ''

The relevant inquiry is the effect on the character of the

"surrounding neighborhood" and not necessarily the entire county.

The plaintiffs' suggestion that the built environment be compared

28 to all agricultural land in the county is misplaced.

01353

. ·'

It would be illogical to determine whether the built

environment predominates over open space, natural landscape and

vegetation by considering and comparing the footprint of a

development of any sort to all the agricultural land in a county.

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

n.ot be in keeping with rural ·character. This is obviously not the

intent of the zoning codes, the Growth Management Act provisions,

or twenty plus years of other land use decisions. In determining

what the "built environment" factor means, this Court has found

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

dispositive. We are left with a common sense analysis.

The plaintiff has not shown that the Commissioners engaged

in an erroneous interpretation of the law surrounding rural

character, under Factor 1) (b).

25 The Resolution is supported by substantial evidence in light

IV.

of the entire record, pursuant to RCW 36.70C.130(1) (c).

01354

Plaintiff claims under the Standard for Granting Relief, RCW

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

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

Finding 2, The proposed use in the proposed location is not

essential or desirable to the public convenience, and is

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

ensure compatibility with existing neighboring land uses.

The legal standard on any claim of sufficiency of evidence

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

prevailed in the highest forum that exercised fact-finding

authority." Cingular Wireless, LLC v. Thurston County, 131 Wn.

App. 756 (2006)

Plaintiff contends again in this section that the fact-

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

conditional use permit process is to determine whether the

applicant has met the requirements of the conditional use using

01355

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

have that authority to permit and authorize a conditional use.

3 The Board in that instance does not exercise appellate

4 jurisdiction but original jurisdiction.

Under the substantial evidence standard, there must be a

sufficient quantum of evidence in the record to persuade a

reasonable person that the declared premise is true. Phoenix

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.

Storedahl & Sons, Inc. v. Cowlitz County, 125 Wn. App. 1 (2004).

It is worth noting that the following analysis has nothing

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.

the commissioners to determine whether the review criteria under

KCC 17.60A.015 for a conditional use permit were met. It is

possible for there to be substantial evidence on BOTH sides of

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

01356

substantial evidence when viewed in light of the whole record.

It is also worth noting that more detailed and comprehensive

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

enable the court to consider the nature and amount of evidence'

that supports them, the court will discuss each one here.

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

sufficient evidence for the commissioners to find the proposed

solar facility is not essential or desirable to the public

convenience, and that it is detrimental or injurious to the

character of the surrounding neighborhood.

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.

There was much discussion of the beneficial nature of clean,

renewable energy. Both the proponents of the site and most of

the opponents of the site agreed in general with the beneficial

nature of clean energy in the abstract. However there was no

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

01357

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

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

a projected amount of clean energy that could be added to the

local power grid, the commissioners were not compelled to declare

it desirable when weighed against the rest of the testimony in

the record.

II The solar project was described by proponents as the largest

12 solar farm in the State of Washington. Opponents to the

facility were concerned with the aesthetics of thousands of steel

racks of panels, up to eight feet high, which are supported by

steel pillars, driven 6 to 8 feet into the ground throughout 47.5

acres of prime growing land, as well as accompanied by boxes and

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,

and there were many comparisons with heavy industry or prisons.

The impact on the view from the surrounding neighborhood at this

flat mid-valley location is undeniable. The Commissioners were

entitled to consider the aesthetics of such a facility. There

was testimony from a local realtor about property values

27 diminishing. The commissioners were entitled to believe this

28 testimony over the assertions of the plaintiff that studies from

01358

some eastern states show no change in property values around

solar farms. Neighbors were concerned with potential issues with

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

testimony about the difficulties with weed control and to weigh

that over the plaintiff's testimony about weeds. There were

assertions about glare, about noise, and about the impact to

10 wildlife from neighbors who have seen wildlife on that particular

11 property, which commissioners were entitled to believe despite

12 the SEPA findings.

There were pages of letters, maps, and photographs

discussing the local opposition to the siting of the solar

facility. There was testimony from numerous nearby landowners as

to the character of the surrounding area, and to the potential

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

farmland. The site itself is prime farmland and has been farmed

for years. Plaintiffs suggest without evidence that this is true

of all A-20 property, and that the opposition was not site

specific; this Court finds that the opposition to the project was

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

01359

. \

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

record as a whole to support the finding.

This holding is consistent with the holding in Cingular

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

Mt. Rainier and open vistas of rural farmland. In noting that no

other structures pierced the natural skyline in that area, the

court held that the record contained sufficient evidence of

incompatibility with neighborhood character and adverse aesthetic

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

20 In this court's review, however, there is not substantial

evidence sufficient to show that the project is detrimental or

injurious to the public health, peace, or safety. The complaints

about the facility involved the nature of the area and its effect

on nearby farmers. Despite questions about the potential for

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.

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

the County that the solar farm would have no impact on the

ability of neighboring farmers to continue to farm. The

testimony and discussion concerning special problems of weed

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

not impact the ability of neighbors to farm, the evidence, taken

in the light most favorable to the Corrunissioners, is marginally

sufficient for the Commissioners to make the finding and

conclusion that the proposed use does not ensure compatibility

I8 with neighboring land uses.

20 The plaintiff's contention that J.L. Storedahl &sons, Inc.

v. Clark County (143 Wn.app. 920 (2008) and Lakeside Industries

v. Thurston County (119 Wn. App. 886 (2004) require the adoption

of the Hearing Examiner's facts is incorrect. In both Storedahl

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

Hearing Examiner had the authority to make the actual decision

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and the Board heard the appeal.

Plaintiff has not shown insufficient evidence under Factor

3 ( 1) (c).

V. Resolution 2017-022 is not a clearly erroneous application of

Kittitas County' ·s conditional use permit criteria from KCC

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

solar facilities in the A-20 zone showed that they erroneously

relied upon the precedential effect of their decision. Plaintiff

correctly points out that the comprehensive plan and ensuing t

development regulations should not be revisited during a project

review.

A finding is clearly erroneous under subsection (d) when,

19 although there is evidence to support it, the reviewing court on

the record is left with the definite and firm conviction that a

mistake has been corruni tted. Norway Hill Pres.· &Prot. Association

v. King County Council, 87 Wn. 2d 267 (1976)

The commissioners did express reservations about siting such

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.

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Court is satisfied that the commissioners were analyzing this

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.

This determination is made despite the later moratorium

placed on the future siting of solar PV facilities. It appears

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

particular project review.

CONCLUSION

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

upheld. The plaintiff has failed to establish that any of the six

standards set forth in RCW 36.70C.130(1) have been met.

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

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.