Puget Sound Energy, Inc., App/cross-resp v. East Bellevue Community Council, Et Ano., Resp/cross-app
74464-0
| Wash. Ct. App. | Jan 30, 2017Background
- Puget Sound Energy (PSE) sought city of Bellevue approval of a conditional use permit (CUP) and a shoreline conditional use permit to construct a 2.89-mile 115kV transmission line linking two substations; part of the route lies in the East Bellevue Community Council (EBCC) area.
- Bellevue staff issued an MDNS under SEPA; a hearing examiner recommended approval with conditions and the Bellevue City Council adopted Ordinance No. 6226 approving both permits.
- The EBCC conducted its own hearings and passed Resolution No. 550, disapproving Bellevue’s ordinance as applied within the EBCC area.
- PSE filed a LUPA petition challenging the EBCC’s disapproval; the trial court held PSE failed to meet the statutory standards to overturn the EBCC but ruled EBCC lacked jurisdiction to review the shoreline CUP.
- On appeal, the Court of Appeals reviewed (de novo and on the administrative record) whether the EBCC’s disapproval was supported by substantial evidence or exceeded its authority and whether the EBCC may review shoreline CUPs.
Issues
| Issue | PSE's Argument | EBCC / Bellevue's Argument | Held |
|---|---|---|---|
| Whether substantial evidence supports EBCC Resolution No. 550 (disapproving Bellevue’s CUP within EBCC area) | Resolution lacks substantial evidence on multiple numbered findings; hearing examiner’s decision was supported by staff report, MDNS, testimony, and studies | EBCC contends findings are supported by record (visual/character, traffic, reliability, comprehensive plan conflicts) | Court: Most challenged EBCC paragraphs (3,5,9,10,11,12,13,16) are not supported by substantial evidence; PSE met burden to overturn EBCC disapproval as to those findings. |
| Whether EBCC acted outside its authority in disapproving Bellevue’s CUP within its area (RCW 35.14.040(3)) | PSE argued EBCC exceeded authority in certain respects (some arguments waived) | EBCC relies on RCW 35.14.040(3) to disapprove ordinances (including CUPs) within its area | Court: EBCC has authority under RCW 35.14.040(3) to approve/disapprove conditional use permits within its area; trial court correct that EBCC’s action was within its jurisdictional authority (but PSE prevailed on merits). |
| Whether EBCC may approve/disapprove shoreline conditional use permits granted by Bellevue | PSE argued EBCC lacks authority over shoreline CUPs because they are governed by chapter 90.58 RCW (state shoreline law) | EBCC claimed RCW 35.14.040(3) broadly covers “conditional use permits,” thus including shoreline CUPs | Court: RCW 35.14.040(3)’s plain language does not encompass shoreline conditional use permits; EBCC lacks authority to approve/disapprove shoreline CUPs granted by Bellevue. |
| Award of attorney fees on appeal to EBCC under RCW 4.84.370 | EBCC sought fees as prevailing party | PSE/Bellevue opposed; statute limits award to prevailing party that is a county, city, or town | Court: EBCC not prevailing party on appeal and, in any event, is not a county/city/town under the statute; fees denied. |
Key Cases Cited
- Durland v. San Juan County, 182 Wn.2d 55 (clarifies LUPA standards of review) (2014)
- Lauer v. Pierce County, 173 Wn.2d 242 (explains substantial evidence standard under RCW 36.70C.130) (2011)
- City of Bellevue v. East Bellevue Community Council, 138 Wn.2d 937 (discusses scope of community council authority under RCW 35.14.040) (1999)
- Phoenix Dev., Inc. v. City of Woodinville, 171 Wn.2d 820 (review of jurisdictional questions under LUPA) (2011)
- Sequra v. Cabrera, 184 Wn.2d 587 (rules governing statutory interpretation) (2015)
- Western Plaza, LLC v. Tison, 184 Wn.2d 702 (statutory construction and review de novo) (2015)