Brown v. Mason Cnty.

DALE BROWN, et al., Plaintiffs, v. MASON COUNTY, et al., Defendants.

GRUMP VENTURES, LLC, Petitioner,

HOOD CANAL GRAVEL MINE

OPPOSITION ASSOCIATION, Intervenor, v. MASON COUNTY, et al., Respondents.

C20-5628 TSZ

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

June 7, 2021

ORDER

THIS MATTER comes before the Court on the Petition, docket no. 25, and the administrative appeal pursuant to the Land Use Petition Act ("LUPA"), RCW Ch. 36.70C, brought by Grump Ventures, LLC ("Grump"). The Court held oral argument on May 10, 2021. See Minutes (docket no. 33). At oral argument, Dale Johnson represented Grump, Kenneth Harper represented Mason County ("the County"), and David Bricklin represented the Hood Canal Gravel Mine Opposition Association ("HCGMOA"). Id. Having considered the oral arguments of counsel and having reviewed all papers filed in support of, and in opposition to, the Petition, the Court enters the following Order.

Background

Grump, owned by Russell Scott, owns six-contiguous parcels in Belfair, Washington totaling 66.5 acres (the "Property"). Administrative Record Part 1 ("AR1") (docket no. 19-1 at 96 (Scott Decl. (April 2020)) & 104 (Form SM-6)). Beginning around 1950, a portion of the Property was used to operate a gravel surface mine. AR1 at 96 (Scott Decl. (April 2020)). In 1996, the Property was zoned as Rural Residential 5 ("RR5"). AR1 at 271 (Rowen Decl.). A surface mine is not permitted on RR5 zoned property absent a legal nonconforming use. AR1 at 271 (Rowen Decl.); Mason County Code ("MCC") 17.04.222. Currently, a gravel pit extends over 1.18 acres of Grump's property. Administrative Record Part 8 ("AR8") (docket no. 19-8 at 123) (Revised Findings of Fact, Conclusions of Law and Final Decision ("Final Decision")). The remaining portion of the land is undeveloped with some logging roads. AR8 at 123 (Final Decision).

In 2017, Grump wanted to expand its mining operations within the boundaries of the Property and sought a Reclamation Permit from the Washington State Department of Natural Resources. AR1 at 97 (Scott Decl. (April 2020)). As part of the application,Grump needed to submit a Form SM-6 ("SM-6"). WAC 332-18-01002. The SM-6 requires local zoning officials to answer "yes" or "no" to the following two questions:

1. Has the proposed surface mine been approved under local zoning and land-use regulations?

2. Is the proposed subsequent use of the land after reclamation consistent with the local land-use plan/designation?

AR1 at 104 (SM-6).

A Mason County official filled out the SM-6 for Grump's Reclamation Permit application on June 30, 2017. AR1 at 104 (SM-6). The official checked "yes" to both questions. AR1 at 104 (SM-6). On the bottom of the SM-6, the official wrote, "*Found to be consistent with the diminishing assets doctrine." AR1 at 104 (SM-6).

After receiving the SM-6, Grump took further steps to complete its Reclamation Permit application, including preparing a State Environmental Policy Act ("SEPA") checklist and applying to the County for a Class IV General Forest Practice Application/Notification ("FPA") to allow timber removal at the Property. AR1 at 98 (Scott Decl. (April 2020)). On June 22, 2018, the County issued a Mitigated Determination of Nonsignificance ("MDNS") for the proposal, meaning that it had determined the proposal "d[id] not have a probable significant adverse impact on the environment." AR1 at 106 (MDNS); WAC 197-11-350.

In July 2018, members of the Belfair community who opposed the proposed mine expansion formed the HCGMOA. AR1 at 22 (Abel Decl.). That same month, Grump withdrew its SEPA and FPA applications. Administrative Record Part 2 ("AR2") (docket no. 19-2 at 26 (Scott Decl. (May 2020)). According to Scott, Grump withdrew theapplications due to "certain highly negative responses and threats" that his family and he received during the SEPA comment period. AR2 at 26 (Scott Decl. (May 2020)).

Grump engaged in ground extraction of gravel with heavy equipment on April 7 and 8, 2019. AR2 at 187 (Order on Motions for Second Summary Judgment ("Order 2")); Grump Petition (docket no. 25 at 11). The County believed that, because it had not issued Grump any permits, the removal of gravel from the site was illegal and served a "Stop Work Order" on April 8, 2019. AR1 at 272 (Rowen Decl.).

On January 28, 2020, the County issued an "Administrative Determination" rescinding the SM-6 ("SM-6 Rescission"). AR1 at 7-8 (SM-6 Rescission). The County stated that since signing the SM-6, it had "received additional information" and it "no longer maintains that current use of the property is legal nonconforming surface mining and acknowledges that the Diminishing Assets Doctrine does not apply to the subject properties." AR1 at 7 (SM-6 Rescission). The County further cited MCC 17.05.016(a)¹ and stated that "[c]urrent zoning does not support surface mining and any past surface mining has been abandoned for a period of more than two years." AR1 at 7 (SM-6 Rescission).

Grump appealed the County's SM-6 Rescission to the Hearing Examiner of Mason County ("Examiner") on February 10, 2020. AR1 at 1-2 (Notice of Appeal). HCGMOA intervened in the proceedings. AR1 at 72-78 (Order Granting Motion to Intervene). During the prehearing process, the Examiner issued two summary judgment orders. See AR1 at 377-410 (Order on Motions for Summary Judgment (Order 1)); AR2 at 231-77 (Order 2). In the first order, the Examiner concluded that the SM-6 constituted a final land use decision and MCC 15.11.020A's 14-day appeal deadline prohibited the County "from revisiting the determination in its SM-6 Interpretation that Grump's mining operation was a valid nonconforming use at the time the SM-6 Interpretation was issued on June 30, 2017."² AR1 at 390 (Order 1). The first order further concluded that, given the judicial policy favoring eliminating nonconforming uses, Grump's nonconforming use could still be terminated and "any period of inactivity subsequent to the issuance of the June 30, 2017, SM-6 Interpretation can be considered in the application of MCC 17.05.016 and be tacked on to any contiguous period of inactivity that occurred prior to issuance of the interpretation." AR1 at 406 (Order 1).

In the second summary judgment order, the Examiner determined that a material issue of fact existed regarding whether Grump failed to engage in mining or gravel extraction for any continuous two-year period between July 1, 2015 (two years before the day after the SM-6), and April 7, 2019 (the undisputed date that Grump engaged in mining). AR2 at 277 (Order 2). The Examiner additionally addressed several legalissues and concluded that: (1) MCC 17.05.016 does not require a showing of intent for a nonconforming use to terminate based on cessation, (2) the County and HCGMOA had the burden to establish that Grump lost its nonconforming use, and (3) mining and gravel use involves extracting minerals from the ground, as opposed to stockpiling gravel or hauling gravel from stockpiles. AR2 at 245-60, 274-77 (Order 2).

The Examiner held a virtual hearing in July 2020. AR8 at 123 (Final Decision). At the hearing, the County argued that that Grump had not engaged in any mining activity between April 3, 2017, and April 3, 2019. To demonstrate that Grump had not mined in the relevant two-year period, the County presented testimony from Rick Glenn, an expert in using aerial and terrestrial photographs to assess mining and forestry activity. AR8 at 117, 127-30 (Final Decision). In Glenn's expert opinion, the photographs demonstrated that no appreciable amount of mining had occurred on the Property since 2012. AR8 at 127 (Final Decision). The testimony of neighbors corroborated Glenn's observations, as several neighbors who live adjacent to or nearby the Property testified that they did not see or hear any mining activity between April 3, 2017, and April 3, 2019. AR8 at 129-30 (Final Decision).

In response, Grump presented evidence relating to two instances of alleged mining activity during the relevant time period. Specifically, Grump presented evidence that 50-60 cubic yards of gravel had been extracted on April 22, 2017, and that two test pits were dug in April or early May 2017. AR8 at 118, 134, 138 (Final Decision). The Examiner, however, found, on a more likely than not basis, that these activities did not occur. AR8 at 134-39 (Final Decision). Regarding the gravel extraction in April 2017, the Examinerdetermined that Grump's witnesses were not credible and found that the extraction more likely took place in February 2017. AR8 at 134-38 (Final Decision). The Examiner also noted that Grump did not present any invoice or bank statements to corroborate the work and that none of Grump's evidence was independently verifiable. AR8 at 119, 134 (Final Decision). With respect to the test pits, the County's expert witness opined that the work did not occur because brush overgrowth made the site of the test pits impassable. AR8 at 139. The Examiner also heard testimony that test pits would not be dug in the middle of a road, like Grump claimed, because it would have a high potential of undermining the road's utility. AR8 at 139 (Final Decision).

On August 11, 2020, the Examiner issued his Final Decision denying Grump's appeal and sustaining the SM-6 Rescission "on the grounds that Grump lost its nonconforming use mining rights through cessation of use from April 3, 2017, through April 3, 2019." AR8 at 145 (Final Decision). Grump appealed to Thurston County Superior Court pursuant to LUPA, RCW Ch. 36.70C. Complaint (docket no. 1-1 at 2-16), Grump Ventures LLC v. Mason County, No. 20-5906-TSZ (W.D. Wash.). The County then removed the case to this Court. Notice of Removal (docket no. 1), Grump Ventures LLC v. Mason County, No. 20-5906-TSZ (W.D. Wash.). HCGMOA was granted leave to intervene in the proceedings. Order (docket no. 5), Grump Ventures LLC v. Mason County, No. 20-5906-TSZ (W.D. Wash.). Finally, the Court conso...