Washington Supreme Court Ups the Ante on SEPA Threshold Determinations
The Washington Supreme Court recently issued a lengthy, 5-4 decision in Friends of Sammamish Valley addressing several critical issues under Washington's State Environmental Policy Act (SEPA) and Growth Management Act (GMA) that will be of great interest to developers as well as those responsible for local governments' land use planning efforts. The decision punctuates a long-standing controversy pitting land preservation interests against owners and operators of wineries, breweries, and distilleries (WBD) in unincorporated King County.
The litigation addressed many legal issues under the GMA, as well as questions regarding standards of review and how much deference should be given to local government decisions in land use planning actions. But the court's discussion of SEPA requirements is most notable.
What the Court Decided
The majority upheld the Growth Management Hearings Board's invalidation of several provisions of the WBD ordinance, generally faulting King County for issuing a threshold SEPA determination of nonsignificance (DNS) without "meaningful engagement" on the potential impacts of its ordinance regulating WBDs. This establishes a rather subjective, but apparently stringent, test for local governments' issuance of threshold determinations under SEPA.
The court complained of a lack of information in the county's SEPA Checklist on the ordinance, as well as sparse analysis of the potential impacts before the ordinance was enacted. The majority criticized the county's attempt to "balance the beneficial aspects of [the] proposal with its adverse impacts" in issuing the DNS, stating that "[e]ven where proposals are designed to in some ways improve the environment, significant adverse environmental impacts could result and must still be reviewed for what adverse impacts are likely to occur overall." The court was likewise troubled by the county's plan to delay the analysis of some potential impacts until there were specific developments proposed in the areas regulated by the WBD ordinance, which was considered a "nonproject action" under the county's SEPA regulations. On this issue, the court explained that "[t]he County must consider the likely environmental impact if all the land located in the area is put to its maximum use under the new regulation because [the court found] it is very probable that the land in this popular winery destination area and other areas will be used in that manner." Such a presumption of "maximum use" could complicate future SEPA review of land use regulatory enactments, depending on how it's applied.
In light of these deficiencies and others articulated in the decision of the court, it upheld the board's invalidation of the key parts of the WBD ordinance. The remaining justices generally favored reversal of the board's holding (which is what the Court of Appeals had done below), although they agreed with the invalidation of more limited portions of the WBD ordinance. While this case is instructive on many issues, developers and regulators should pay close attention to the court's standards and guidance regarding the sufficiency of SEPA threshold determinations. It will likely inform the county's future efforts to permit and regulate WBD uses as well.
Contact DWT's land use and development team with questions or comments.