No. 26067-1-II.The Court of Appeals of Washington, Division Two.
Filed: August 10, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Clark County, No. 99-2-04114-7, Hon. Roger A. Bennett, June 1, 2000, Judgment or order under review.
Counsel for Appellant(s), Guy C. Stephenson, Ch 2j28, P.O. Box 9777, Federal Way, WA 98063-9777.
Marvin V. Overstreet (Appearing Pro Se), Attorney At Law, 15518 N.W. 23rd Ct, Vancouver, WA 98685.
Guy C. Stephenson, Ch 2J28, P.O. Box 9777, Federal Way, WA 98063-9777.
Marvin V. Overstreet (Appearing Pro Se), Attorney At Law, 15518 N.W. 23rd Ct, Vancouver, WA 98685.
Michael R. Karber, Attorney At Law, Ste 410 Main Pl, 1111 Main St, Vancouver, WA 98660.
Counsel for Respondent(s), Richard S. Lowry, Clark County Deputy Pros Atty, P.O. Box 5000, 1200 Franklin St, Vancouver, WA 98660-2872.
Randall B. Printz, Landerholm Memovich Lansverk Whitesides, 915 Broadway St #300, P.O. Box 1086, Vancouver, WA 98666K1086.
J. DEAN MORGAN, P.J.
A citizens’ association called Stop the Amphitheater Today (S.T.A.T.)[1]
appeals administrative orders permitting a proposed amphitheater in Clark County. We affirm. Clark County has designated an Urban Growth Area pursuant to the Growth Management Act. That area includes the Clark County Fairgrounds and Interstate 5. Clark County proposes to build a large outdoor concert facility within its Urban Growth Area. The new facility will be immediately south of the fairgrounds and immediately west of I-5. It will be accessed by vehicles from 179th Street and I-5. It will present nationally-known entertainers and seat about 18,000 people. Clark County will own the new facility. According to a `memorandum of understanding’ between the County and Q-Prime, Q-Prime is to obtain the necessary permits, and to construct, lease, and operate the facility for 25 years. According to the same memorandum, `the County hereby sanctions the holding of up to forty-five (45) events by Q-Prime per calendar year.’[2] On March 17, 1999, Q-Prime applied to the Clark County Department of Community Development (CCDCD) for a conditional use permit, site plan approval, and noise exemption. It stated that the facility would present 32-40 events per year, all between May and October. It disclosed that each event would generate noise audible more than 6,000 feet away and substantial traffic on access routes. Its application included an environmental checklist and accompanying analysis on sound, traffic, storm water, wetlands, wildlife, crime, lighting, erosion, and parking. On May 28, the CCDCD issued a comprehensive Environmental Checklist Review, Staff Report with recommendations, and Mitigated Determination of Non-Significance (MDNS). It conditioned the MDNS in part as follows:
1. The applicant shall implement noise mitigation measures to limit noise levels equal to or less than 57 dBA north of N.E. 179th Street and east of I-5.
2. The applicant shall limit noise levels at the mixing console to 102 dBA, monitor compliance with this sound limit, and submit results to Clark County Development Services after each event.
3. Events at the proposed amphitheater shall generally cease at or before 11:00 PM the day of the event.[3]
The CCDCD’s 38-page report did not expressly comment on the cumulative impact of the effects it discussed separately.
On June 11, STAT appealed CCDCD’s decisions to the Clark County Hearing Examiner. The Examiner held hearings at which several hundred citizens testified, some in support, some in opposition. The examiner also accepted and considered additional documentation. STAT argued in part that the MDNS did not adequately address the facility’s cumulative impacts, and that the facility would violate the Noise Control Act of 1974.
On August 4, the Examiner issued an exhaustive 62-page final order. Rejecting STAT’s cumulative-impact argument, he reasoned that the CCDCD had erred by not commenting on cumulative impacts; that he could and should remedy the defect by analyzing cumulative impacts; and that such impacts were not significantly adverse `because of the insignificance of the discrete impacts, the disparate nature of those discrete impacts and the limit on the number of major events permitted per season.’[4] Rejecting STAT’s Noise-Act argument, he reasoned that the facility was exempt `from mandatory compliance with [the Noise Control Act] because events . . . are officially sanctioned (by a lease from the Board of Commissioners), and because those events are public events, in that they are conducted on land owned by the County and to which the general public is invited.’[5]
On October 15, 1999, STAT sued in superior court under the Land Use Petition Act.[6] The superior court denied relief, and this appeal followed.
STAT first argues that the CCDCD `failed to conduct the required `cumulative impacts’ analysis as part of the threshold determination, thus rendering the MDNS invalid.’[7] It cites and relies on WAC 197-11-330(3).[8] SEPA requires that the responsible administrative official conduct a detailed and comprehensive review, rather than take a `lackadaisical approach.’[9] It also requires that the official issue a report showing `that environmental factors were considered in a manner sufficient to amount to prima facie compliance with the procedural requirements of SEPA.’[10] SEPA does not generally require more, nor does it particularly require that a responsible official comment on cumulative impacts in any particular way. As the County correctly points out, WAC 197-11-330(3) requires only that the responsible official `take into account’ whether `several marginal impacts when considered together may result in a significant adverse impact.’ The CCDCD’s comprehensive and detailed 38-page report was the antithesis of a `lackadaisical approach’;[11] it amply showed that the responsible official considered all environmental impacts; and it satisfied the requirements of SEPA.
STAT may be arguing that the examiner’s `finding’ that the CCDCD erred by not commenting on cumulative impacts is a verity on appeal that cannot be reviewed.[12] STAT suggests such an argument when it points out that the hearing examiner found that the CCDCD had erred by not `explicitly address[ing] cumulative effects[,]’[13] and that `[n]either the applicant nor the county has appealed this finding by the Hearings Examiner.’[14] Simultaneously, however, STAT argues that the hearing examiner lacked power to make findings of fact, and that if the responsible official erred by not commenting on cumulative impacts, the examiner was required to remand to that official. Assuming that the examiner had power to make findings, he correctly and properly filled any void in the CCDCD report by making his own finding of fact. Assuming that the examiner lacked power to make findings (i.e. that he sat in an appellate capacity only), no one had to appeal the `finding’ to which STAT points. We do not decide whether the examiner had the power to make findings; whether he did or did not, STAT’s argument fails.[15]
STAT next argues that the MDNS was clearly erroneous. Both the CCDCD and the hearing examiner were faced with seriously conflicting evidence from many citizens and sources. Each had to make a decision; each did that; and we cannot say that either’s decision was `clearly erroneous.’[16]
STAT next argues that the facility will violate the Noise Control Act of 1974. We disagree.
The act itself contains little that is of help here. It merely commands that the Department of Ecology shall adopt, by rule, maximum noise levels permissible in identified environments in order to protect against adverse affects of noise on the health, safety and welfare of the people, the value of the property, and the quality of environment: PROVIDED, That in so doing the department shall take also into account the economic and practical benefits to be derived from the use of various products in each such environment, whether the source of the noise or the use of such products in each environment is permanent or temporary in nature, and the state of technology relative to the control of noise generated by all such sources of the noise or the products.[17]
DOE regulations give the act effect. They provide for maximum noise levels,[18] but then exempt from compliance `[s]ounds originating from officially sanctioned parades and other public events.’[19]
The parties debate whether this exemption applies here. The County and Q-Prime assert that it does, because all events staged at the facility will be `officially sanctioned . . . public events.’ STAT argues that it does not, because the events staged at the facility will not be public events. When STAT explained its view at oral argument, it said that a `public event’ is one held in the open air, not bounded by walls, and to which admission is not charged as, for example, a parade. STAT went on to assert that a `public event’ is not one held within walls, or to which admission is charged as, for example, a baseball game at Safeco Field, a rock concert at the Tacoma Dome, or a Trailblazer game at the Rose Garden.
Giving the term `public event’ its plain meaning, we hold that a public event is one that any member of the public may attend. It can be a `public event’ even if it is held inside walls that have no roof, or inside walls that have a roof. It does not matter whether admission is charged, at least if admission does not operate to exclude most of the public.[20] Like events at Safeco Field, the Tacoma Dome, and the Rose Garden, the events contemplated here are `public events.’ STAT argues that if we define public events this way, we will be exempting from noise regulation `substantially all of the activities which occur at recreation and entertainment [properties] . . . e.g. theaters, stadiums, fairgrounds, and amusement parks.’[21] We disagree. We read a regulation in light of its purpose.[22] Apparently because noise is so difficult to control on a statewide basis, the Department of Ecology (DOE) provided in the noise control regulations at issue here:
The department conceives the function of noise abatement and control to be primarily the role of local government and intends actively to encourage local government to adopt measures for noise abatement and control. Wherever such measures are made effective and are being actively enforced, the department does not intend to engage directly in enforcement activities.[23]
In light of this deferral to local government, we think that DOE’s purpose in promulgating the exemption was to allow local government officials to permit or decline to permit public events that temporarily[24]
generate noise levels in excess of its regulations. The exemption applies here, and STAT has not shown a violation of Noise Control Act of 1974.
The remainder of the appellants’ arguments are meritless or need not be reached. The decisions of the CCDCD, the examiner, and the superior court are affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
WE CONCUR: SEINFELD, J., BRIDGEWATER, J.
(a) The same proposal may have a significant adverse impact in one location but not in another location;
(b) The absolute quantitative effects of a proposal are also important, and may result in a significant adverse impact regardless of the nature of the existing environment;
(c) Several marginal impacts when considered together may result in a significant adverse impact;
(d) For some proposals, it may be impossible to forecast the environmental impacts with precision, often because some variables cannot be predicted or values cannot be quantified.
(e) A proposal may to a significant degree:
(i) Adversely affect environmentally sensitive or special areas, such as loss or destruction of historic, scientific, and cultural resources, parks, prime farmlands, wetlands, wild and scenic rivers, or wilderness;
(ii) Adversely affect endangered or threatened species or their habitat;
(iii) Conflict with local, state, or federal laws or requirements for the protection of the environment; and
(iv) Establish a precedent for future actions with significant effects, involves unique and unknown risks to the environment, or may affect public health or safety.
WAC 197-11-330(3).
(1973)).
(2000) (administrative finding of fact not assigned error is a verity on appeal).