                                                                   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                                   )                    UNPUBLISHED OPINION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.
No. 36240-0-III
One Energy Dev. LLC v. Kittitas County


       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


       1
         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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One Energy Dev. LLC v. Kittitas County


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)



      2
      The GMA’s rural character definition is currently codified at
RCW 36.70A.030(16).

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One Energy Dev. LLC v. Kittitas County


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


      3
         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.
       4
         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).
       5
         The recommended conditions of approval were in addition to the mitigation
conditions included in the mitigated determination of nonsignificance.

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One Energy Dev. LLC v. Kittitas County


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


       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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No. 36240-0-III
One Energy Dev. LLC v. Kittitas County


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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One Energy Dev. LLC v. Kittitas County


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;
           (c) That provide visual landscapes that are traditionally found in rural
       areas and communities;


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One Energy Dev. LLC v. Kittitas County


          (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



       7
          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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One Energy Dev. LLC v. Kittitas County


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.


       8
         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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One Energy Dev. LLC v. Kittitas County


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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                                         24
                                      No. 36240-0-III

       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.
     2

 3

 4                        IN THE SUPERIOR COURT OF WASHINGTON
                                     KITTITAS COUNTY
     5
          ONE ENERGY DEVELOPMENT LLC; and
 6        IRON HORSE SOLAR LLC                  Cause No.    17-2-00075-5

 7
                                 Plaintiffs,
 8
          vs.
                                                MEMORANDUM DECISION
 9
          KITTITAS COUNTY, a municipal
10        corporation; and KITTITAS COUNTY
          BOARD OF COMMISSIONERS; and
11
          "SAVE OUR FARMS! SAY NO TO IRON
12        HORSE!; and CRAIG CLERF AND
          PATRICIA CLERF, husband and wife
13
                                 Defendants.
14

15

16                                   INTRODUCTION

17
                   Oral argum~nt on Petitioner's Land Use Petition Act
18

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
22
         Commissioners.   James Carmody appeared for Defendants Save our
23
         Farms and Craig and Patricia Clerf.    After hearing all drguments,
24
         the Court took the matter under advisement in order to review the
25
         record and the pleadings submitted by all parties. The Court has
26

27       reviewed the voluminous hearing records,     state statutes, county

28       code provisions, court cases, and all arguments presented.
29


                                           1


                                        01337
 2                                        DISCUSSION
 3

 4
             1.    Factual Background      At issue is the granting or denial
 s
     of a Conditional Use Permit for property owned by William Hanson,
 6

 7
     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
11
     the adjacent and nearby neighbors are also engaged in farming.
12
     The property owner proposed to lease his property to One Energy
13
     Development LLC and to convert the farmland into a 47.5 acre
14

15
     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.
19
             The Kittitas County Code provides that a solar farm--which
20
     is designated by the County code in KCC 17.61.010(9) as                 A   "major
21
     alternative energy facilityu-is allowed in the A-20 zoning area
22
     only as a conditional use. KCC 17.61.020(4) (b) . 1 Thus, in order
23

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

25

26
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.


                                               2


                                           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
 6
         review were consolidated into one procedure, pursuant to KCC
 7
         lSA.01.010.     The SEPA issues went before a Hearing Examiner, who
 8
         conducted an open record adjudicative hearing on October 20,
 9

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
I3
         Environmental Policy Act threshold determination and issuance of
14
         the Mitigated Determination of Nonsignificance (MONS), and to
15
         make a recommendation to the Board of County Commissioners about
16
         the issuance of th~ conditional use permit     (CUP).
17

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
21
         engendered considerable public interest, particularly among
22
         adjacent and other nearby landowners, and they participated as
23
         allowed by providing letters,    testimony, and various documents
24
         for consideration.
25

26
                    After the decision and recommendation of the Hearing
27

28

29


                                             3



                                         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
 2
 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
 6
     able to discuss their questions and opinions about the various
 7
     issues presented, to deliberate, and eventually to issue a
 8
     written decision in the form of Resolution 2017-022, dated
 9
     February 7, 2017.     The Commissioners, by a vote of two to one,
10

11   denied the Iron Horse project conditional use permit application.

12
           In Resolution 2017-022, the commissioners listed the
J3

14
     following substantive statements:

15
           "l. Open space, the natural landscape, and vegetation would
16
     not predominate over the built environment on the subject parcels
17
     if the proposal were approved in this location.    (RCW
18

19   36.-70A.030 (15)

20
           2. The proposed use in· the proposed location is not
21
     essential or desirable to the public convenience and is
22

23
     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) )
26
            3. The proposed use in the proposed location would not
27

28   ensure compatibility with existing neighboring land uses.        (KCC

29

                                        4


                                     01340
     17.60A.015(5).

 2
         ·4. The proposed use in the proposed location does not
 3
     preserve the "rural character" as defined in the Growth
 4
     Management Act.       (RCW 36. 70A.030(15)) KCC 17.60A.015(7) (B)).
 5

 6

 7

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

 9   filing of the Land Use Petition.
10

lI

12

13
          2. Standard.of Review:        The Land Use Petition Act, LUPA,
14

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

16   decision   (with some exceptions).         Woods v. Kittitas County, 162
17
     Wn. 2d 597   (2007)
18
          RCW 36.70C.130 sets forth the standards for granting relief
19
     in a LUPA appeal.       The court may grant relief only if the party
20
     seeking relief has carried the burden of establishing that one of
21

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
25
               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
29


                                            5


                                        01341
                  before the court;
               (d)The land use decision is a clearly erroneous
                  application of the law to the facts;
 2
               (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.
 5
     RCW 3 6. 7 QC. 13 0 ( 1) •
 6

 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.
JO

11
            Deference must be given to the decisions and factual
12
     determinations of the local decision making authority.         In this
13

14
     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
17
     making authority over the granting of conditional use permits is
18
     retained by the BOCC in the code.        This reviewing court, thus,
19
     must give substantial deference to the decisions of the BOCC, not
20
     to the Hearing Examiner, which makes findings and decisions
21

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.
26

27
            Plaintiff did not cite persuasive authority which would
28
     support giving that deference to the Hearing Examiner because of
29


                                         6

                                      01342
     a perceived or real deficiency in the Findings of Fact found by

 2
     the· legal decision maker, and this Court declines to find that

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

 4

 5             For the reasons set forth below, this Court finds that the
 6
     plaintiff has not established any of the standards necessary to
 7
     overrule the determination of the Board of County Conunissioners.
 8

 9

10

11

}2        3.    Analysis:
13
          Analysis of plaintiff's Statement of Issues is organized
14
     around specific LUPA standards of review.
15

16        I.    THIS LAND USE DECISION WAS NOT OUTSIDE THE AUTHORITY OR
17
     THE JURISDICTION OF THE KITTITAS COUNTY BOARD OF COMMISSIONERS
18
     UNDER RCW 36.70C.130(1) (e).
19

20

21
          One Energy argues as part of standard (1) (e) that the BOCC
22
     acted outside of its authority by disregarding the Hearing
23
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.
28
     Hearing examiner did not have the authority to permit and
29


                                        7


                                     01343
     authorize a conditional use.

 2
          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
 6
     indicate, the SEPA review and the CUP review were consolidated
 7
     into one hearing, so that the public and the parties and all
 8
     interested persons could present testimony or submit evidence at
 9

10
     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
14
     the granting or denial of Conditional use permits in KCC
15
     lSA.01.040 (4) (d).          The code provisions regarding this procedure
16
     are set out in the relevant parts of KCC lSA.01.040:
17

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:
20
                  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.
24
                       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
25
                       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 .
27
                  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 .

29


                                                              8


                                                      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.
 4
                  e.    Shoreline substantial development permits that are
 5                     included in consolidated permit applications that are
                       subject to Board review and action.
 6
                  f.    Review and provide initial local County approval,
 7                     denial, or approval with conditions for shoreline
                       conditional use permits and shoreline variances that
 8
                       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:
12
                  a. All Quasi judicial review processes includintj:
13
                          i. applications for preliminary plats
14
                         ii. Rezone applications.
15
                  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
19
                   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.
22

23
          Integration of the hearings by statute,              for purposes of
24
     taking evidence, does not equate to mandating the rubber stamping
25
     of the Hearing Examiner's recorrunendation.            This court has found
26

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

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

29


                                             9


                                       01345
     challenge, or reply to" the explanations of the Hearing Examiner.

          Moreover,     the decision facing the Hearing Examiner regarding
 2

 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
 6
     determination and does not bind any decision maker on a challenge
 7
     to the conditional use permit.
 8
          The Commissioners were the only decision makers who did have
 9
     authority or jurisdiction to make this land use decision.
10

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

12

13        II.   THE BOARD OF COUNTY COMMISSIONERS DID NOT FAIL TO
14
     FOLLOW THEIR PRESCRIBED PROCESS IN MAKING THEIR LAND USE
l5
     DETERMINATION UNDER RCW 36.70C.130(1) (a).
16

17

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
21
     at the commissioner's closed hearing.      This procedure tracked the
22
     requirements set out in the code provision above. The plaintiff
23
     has not identified any procedural errors in the process
24

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
29


                                         10


                                     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
     I

 5
         Examiner, which was the highest previous entity that made
 6
         specific findings,   so that the Hearing Examiner became the
 7
         highest level finder of fact.
 8
                The defendant from Save our Farms counters that a finding of
 9

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
13
         decision.    The defendant adds that they were supported by
14
         substantial evidence (which will be taken up in another
15
         argument).
16
                The defendant Kittitas County likewise argues that even if
17

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
21
         that in this case, the oral record was extensive and clear as to
22
         the final factors upon which the commissioners based their
23
         decision.    They also apparently argue that the actual criteria
24
         for conditional use permit review involve subjective general
25

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
29


                                            11


                                         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
 6
     agrees with the defendant that the findings made were legally
 7
     sufficient.
 8

 9

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
13
     Commissioners had to consider.       The last fouf statements of the
14
     resolution, quoted above, which are characterized by the
15                                    \
     plaintiff as conclusions of law, are in reality both findings and
16
     conclusions.     They are the only substantive factual statements
17

18
     listed, and constitute the ultimate reasons that the County

19   commissioners gave to explain their denial of the conditional use

20   permit.
21

22
          This Court finds these are marginally sufficient as findings
23
     of fact.     They lack detail and any citation to the record itself.
24
     However,    broad as they are,   they are sufficiently specific to
25

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
29


                                          12


                                      01348
                                                                            r
                                                                            I
     does allow this Court to review the decision for sufficiency ·of

     evidence. A common sense reading of "findings" requirements here
 2
 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
 6
     commissioners without so requiring.       Thus it would be a pointless
 7
     gesture to send the matter back for improved findings,        and the
 8
     Court is not inclined to engage in a pointless gesture.
 9

10

11          Therefore, plaintiffs have not shown that the Commissioners

12   failed to follow the prescribed process as in Standard ( 1) (a).
13

14
     III.    The Resolution 2017-022 is not an erroneous interpretation
15
     of law under RCW 36.70C.130 (1) (b).
16

17

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
21
     17.60A.015   (7) (B)." Resolution 2017-022.    The definition for
22
     rural character referenced in the County Code from the RCW is:
23

24
                  "(16) "Rural character" refers to the patterns of land use
              and development established by a county in the rural element     I
25
              of its comprehensive plan:                                       f
                                                                               l
                  (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
27
              areas;
28              , (c) That provide visual landscapes that are traditionally
              found in rural areas and communities;
29


                                         13


                                     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).

 6
            This standard must be reviewed after allowing for such
 7
     deference as is due the construction of a law by a local
 8

 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
12
     RCW.   The Board is the governing legislative body in a largely
13
     rural county, which has considerable experience in discussing and
14
     determining rural character. And the Board is singly tasked with
15
     deciding the issuance of Conditional Use Permits,       and thus must
16

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
20
     that the Board did not misinterpret the law.
21

22
            Plaintiffs contend that the commissioners misapplied the
23
     "rural character" provision of the Kittitas County Code
24
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
29


                                        14


                                     01350
                                                                                l
     as a conditional use in the A-20 zone declares that solar

 2
     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
 6
     use can demonstrate to the satisfaction of the finder of fact
 7
     that there is compliance with each of the conditional use permit
 8
     criteria at that particular site.         Solar farms are only allowed
 9

10
     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
13
     conditional use permit.     Preserving rural character is one of the
14
     conditions that must be met, and the burden of showing that it
15
     does so at this specific site rests with the applicant proponent
16
     of the solar farm.
17

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
21
     place, even in the same zoning.         One component of rural character
22
     refers to "patterns of land use and development established by a
23
     county in the rural element of its comprehensive plan:        (a)   in
24
     which open space,    the natural landscape, and vegetation
25

26
     predominate over the built environment." There could be an almost
                                                                                I
27   infinite number of configurations of project and siting that

28   could yield vastly different results from each other.
29


                                        15

                                     01351
           Additionally,        since compliance with the Comprehensive Plan

  2
      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
  6
      the Commissioners to consider rural character as it is discussed
  7
      in the comprehensive plan during the site specific analysis.           The
  8
      definition in the Growth Management Act at RCW 36.70A.030 is:
  9

 10
                         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
 17
                     development;
                        (f) That generally do not require the extension of
18
                     urban governmental services; and
19
                        (g) That are consistent with the protection of
                     natural surface water flows and groundwater and
20                   surface water recharge and discharge areas

21

22    It is not an erroneous interpretation of law, specifically rural
23
      character, to consider whether a massive industrial project of
24
      this nature, encompassing 47.5 acres, eight feet high with large
25
      mechanized racks to follow the sun, set in the middle of treeless
26
      productive farm fields preserves rural character, interferes with
27

'28
      visual compatibility of the surrounding area, or contains a built

 29


                                            16


                                         01352
                                                                              ,
                                                                              r
                                                                              l
     environment which predominates over the natural landscape.

 2
          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
 6
     threatened by the project.     However, in discussing rural
 7
     character, the relevant criteria for the Commissioners in KCC
 8
     17.60A.015 were:
 9

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 ....
12
                 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.
15
                  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;
19
                 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. ''
23

24
     The relevant inquiry is the effect on the character of the
25
     "surrounding neighborhood" and not necessarily the entire county.
26
     The plaintiffs' suggestion that the built environment be compared
27
28   to all agricultural land in the county is misplaced.

29


                                        17

                                     01353
     . ·'


                  It would be illogical to determine whether the built
 2
            environment predominates over open space, natural landscape and
 3
            vegetation by considering and comparing the footprint of a
 4
            development of any sort to all the agricultural land in a county.
 5

 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
 9
            n.ot be in keeping with rural ·character. This is obviously not the
10
            intent of the zoning codes, the Growth Management Act provisions,
IJ
            or twenty plus years of other land use decisions.   In determining
12
            what the "built environment" factor means, this Court has found
13

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
17
            dispositive.   We are left with a common sense analysis.
18
                  The plaintiff has not shown that the Commissioners engaged
19
            in an erroneous interpretation of the law surrounding rural
20
            character, under Factor 1) (b).
2r
22

23

24

25                The Resolution is supported by substantial evidence in light
            IV.
26
            of the entire record, pursuant to RCW 36.70C.130(1) (c).
27

28

29


                                              18


                                          01354
,1




               Plaintiff claims under the Standard for Granting Relief, RCW

          36.70C.130(1) (c), that the resolution was not supported by
      2

      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
      6
          Finding 2,   The proposed use in the proposed location is not
      7
          essential or desirable to the public convenience, and is
      8

      9
          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
     12
          ensure compatibility with existing neighboring land uses.
     13

     14
               The legal standard on any claim of sufficiency of evidence
     15

     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
     19
          prevailed in the highest forum that exercised fact-finding
     20
          authority." Cingular Wireless, LLC v. Thurston County, 131 Wn.
     21
          App. 756 (2006)
     22
               Plaintiff contends again in this section that the fact-
     23

     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
     27
          conditional use permit process is to determine whether the
     28
          applicant has met the requirements of the conditional use using
     29


                                            19


                                        01355
     KCC 17.60A.015 Review criteria.    The Hearing examiner did not

     have that authority to permit and authorize a conditional use.
 2

 3   The Board in that instance does not exercise appellate

 4   jurisdiction but original jurisdiction.
 5

 6
          Under the substantial evidence standard, there must be a
 7
     sufficient quantum of evidence in the record to persuade a
 8
     reasonable person that the declared premise is true.      Phoenix
 9

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.
13
     Storedahl & Sons, Inc. v. Cowlitz County, 125 Wn. App. 1 (2004).
14

15
          It is worth noting that the following analysis has nothing
16

17
     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.
22
     the commissioners to determine whether the review criteria under
23
     KCC 17.60A.015 for a conditional use permit were met.      It is
24
     possible for there to be substantial evidence on BOTH sides of
25

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
29


                                       20


                                    01356
      substantial evidence when viewed in light of the whole record.

           It is also worth noting that more detailed and comprehensive
 2

 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
 6
      enable the court to consider the nature and amount of evidence'
 7
      that supports them, the court will discuss each one here.
 8

 9

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
13
      sufficient evidence for the commissioners to find the proposed
14
      solar facility is not essential or desirable to the public
I5
      convenience, and that it is detrimental or injurious to the
16
      character of the surrounding neighborhood.
17

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.
21
      There was much discussion of the beneficial nature of clean,
22
      renewable energy.    Both the proponents of the site and most of
23
      the opponents of the site agreed in general with the beneficial
24
      nature of clean energy in the abstract.    However there was no
25

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
29


                                       21


                                    01357
     electricity in the Kittitas Valley.     Evidence of the project's

 2
     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
 6
     a projected amount of clean energy that could be added to the
 7
     local power grid,    the commissioners were not compelled to declare
 8
     it desirable when weighed against the rest of the testimony in
 9

10
     the record.

II        The solar project was described by proponents as the largest

12   solar farm in the State of Washington.       Opponents to the
13
     facility were concerned with the aesthetics of thousands of steel
14
     racks of panels,    up to eight feet high, which are supported by
15
     steel pillars, driven 6 to 8 feet into the ground throughout 47.5
16
     acres of prime growing land, as well as accompanied by boxes and
17

18
     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,
21
     and there were many comparisons with heavy industry or prisons.
22
     The impact on the view from the surrounding neighborhood at this
23
     flat mid-valley location is undeniable. The Commissioners were
24
     entitled to consider the aesthetics of such a facility.     There
25
     was testimony from a local realtor about property values
26

27   diminishing.    The commissioners were entitled to believe this

28   testimony over the assertions of the plaintiff that studies from
29


                                        22


                                    01358
                                                                            f
     some eastern states show no change in property values around
                                                                            !
     solar farms.     Neighbors were concerned with potential issues with
 2
 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
 6
     testimony about the difficulties with weed control and to weigh
 7
     that over the plaintiff's testimony about weeds.       There were
 8
     assertions about glare, about noise, and about the impact to
 9
10   wildlife from neighbors who have seen wildlife on that particular

11   property, which commissioners were entitled to believe despite

12   the SEPA findings.
13
            There were pages of letters, maps, and photographs
14
     discussing the local opposition to the siting of the solar
15
     facility.    There was testimony from numerous nearby landowners as
16
     to the character of the surrounding area, and to the potential
17

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
21
     farmland.    The site itself is prime farmland and has been farmed
22
     for years.     Plaintiffs suggest without evidence that this is true
23
     of all A-20 property,    and that the opposition was not site
24
     specific; this Court finds that the opposition to the project was
25

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
29
                                                                            J
                                        23
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                                                                            l
                                    01359
                                                                            I
.   \




             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
         6
             record as a whole to support the finding.
         7

         8
                  This holding is consistent with the holding in Cingular
         9

        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
        13
             Mt. Rainier and open vistas of rural farmland.   In noting that no
        14
             other structures pierced the natural skyline in that area,    the
        15
             court held that the record contained sufficient evidence of
        16
             incompatibility with neighborhood character and adverse aesthetic
        17

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

        19

        20        In this court's review, however,   there is not substantial
        21
             evidence sufficient to show that the project is detrimental or
        22
             injurious to the public health, peace, or safety.    The complaints
        23
             about the facility involved the nature of the area and its effect
        24
             on nearby farmers.    Despite questions about the potential for
        25

        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.
        29


                                              24


                                           01360
.
)
    '   .


             2

             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
             6
                 the County that the solar farm would have no impact on the
             7
                 ability of neighboring farmers to continue to farm.      The
             8
                 testimony and discussion concerning special problems of weed
             9

            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
            13
                 not impact the ability of neighbors to farm,    the evidence, taken
            14
                 in the light most favorable to the Corrunissioners, is marginally
            15
                 sufficient for the Commissioners to make the finding and
            16
                 conclusion that the proposed use does not ensure compatibility
            17

            I8   with neighboring land uses.

            19

            20         The plaintiff's contention that J.L.   Storedahl &sons, Inc.
            21
                 v. Clark County (143 Wn.app.    920 (2008) and Lakeside Industries
            22
                 v.   Thurston County (119 Wn. App. 886 (2004)   require the adoption
            23
                 of the Hearing Examiner's facts is incorrect.      In both Storedahl
            24

            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
            28
                 Hearing Examiner had the authority to make the actual decision
            29


                                                   25
                                                                                        J
                                                01361
                                                                                        I
                                                                                        l
           •        Q
     ' •        '       c:


.'

                             and the Board heard the appeal.

                2
                                    Plaintiff has not shown insufficient evidence under Factor

                3            ( 1) (c).

                4

                5

                6
                             V.   Resolution 2017-022 is not a clearly erroneous application of
                7
                             Kittitas County' ·s conditional use permit criteria from KCC
                8

                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
               12
                             solar facilities in the A-20 zone showed that they erroneously
               13
                             relied upon the precedential effect of their decision.           Plaintiff
               14
                             correctly points out that the comprehensive plan and ensuing                    t
               15

               16

               17

               18
                             development regulations should not be revisited during a project

                             review.

                                   A finding is clearly erroneous under subsection (d) when,
                                                                                                             I
                                                                                                             1
               19            although there is evidence to support it, the reviewing court on
               20
                             the record is left with the definite and firm conviction that a
               21
                             mistake has been corruni tted.   Norway Hill Pres.· &Prot.     Association
               22
                             v.   King County Council,   87 Wn. 2d 267    (1976)
               23
                                    The commissioners did express reservations about siting such
               24
               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.
               29


                                                                 26


                                                              01362
'   ..
    ""·
           '       ,.




                        Court is satisfied that the commissioners were analyzing this

           2
                        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.
               6

           7
                                This determination is made despite the later moratorium
           8
                        placed on the future siting of solar PV facilities. It appears
           9

          JO
                        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
          13
                        particular project review.
          14

          15

          16
                                                      CONCLUSION
          17

          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
          21
                        upheld. The plaintiff has failed to establish that any of the six
          22
                        standards set forth in RCW 36.70C.130(1) have been met.
          23

          24

          25
                                Dated this   3a·~       day of November, 2017.

          26

          27

          28

          29


                                                           27


                                                       01363
