The long battle against the proposed State Route 169 asphalt plant near Renton has hit a snag after an unpublished opinion was filed by three appellate judges who rejected the latest efforts of the Citizens To Stop The SR 169 Asphalt Plant.

Citizens to Stop the SR169 Asphalt Plant, which also does business as “Save The Cedar River,” is a group of concerned citizens that primarily reside along the SR 169 corridor and who are dedicated to stopping the construction of a hot mix asphalt plant next to the Cedar River and near residential neighborhoods.

Filed on May 28, the opinion was penned by Court of Appeals of Washington Division One Judge Leonard Feldman, with concurrence from Judge Cecily Hazelrigg and Judge David Mann.

In the opinion, the judges summarized the timeline of the Lakeside Industries Inc. asphalt plant construction project, including the different permits required, like a construction permit, a substantial shoreline development permit (SSDP) and a combined mitigated determination of nonsignificance (MDNS), which are required by the State Environmental Policy Act (SEPA).

The permits and the combined MDNS were issued by the King County Department of Local Services.

According to the opinion, the Citizens group had filed a petition for review appealing the construction permit and the combined MDNS to the King County Superior Court, and the SSDP and combined MDNS to the Shoreline Hearings Board, challenging both the county and the Shoreline Hearings Board’s decisions. Citizens had also filed a Land Use Petition Act (LUPA) petition to the Superior Court.

The judges dismissed the Citizens’ LUPA petition, writing that the Shoreline Hearings Board had properly exercised “sole jurisdiction” when it upheld the Department of Local Services’ combined MDNS, and that Citizens had not properly demonstrated the alleged invalidity of the Shoreline Hearings Board’s decision in affirming the combined MDNS and SSDP.

The opinion also outlined the efforts by Citizens and the arguments made by the organization in its opposition to the asphalt plant.

The opinion states that Citizens’ leading argument is that the county had violated state law on the timing of SEPA process, saying that since the county had not issued the MDNS until 3.5 years after the permit applications were filed, that this was in violation of SEPA. The judges concluded that, due to Citizens failing to include this argument in the joint list of proposed legal issues to the Shoreline Hearings Board, that the court would not consider it.

“We need not — and do not — answer these questions here because, as the County and Lakeside correctly argue, Citizens abandoned this argument before the Board and has therefore waived it. Although Citizens raised the timing issue in its initial petition for review, it failed to include the issue in its proposed list of legal issues to the Board,” said the judges in the opinion. “Because Citizens failed to adequately raise this issue before the Board, it may not be raised on appeal.”

The Citizens’ next argument was that the county did not “adequately assess or mitigate various environmental impacts before it issued the MDNS,” which the judges disagreed with after reviewing the administrative record and concerns raised by Citizens.

The judges concluded that the county had properly evaluated “the relevant environmental factors sufficiently to constitute prima facie compliance with SEPA.” These are in regards to toxic and hazardous substances, impacts to fish and fish habitat, impacts to wildlife, traffic impacts, noise impacts, recreational and aesthetic impacts and land use impacts.

In the opinion, the judges went through each environmental factor and wrote out their assessment of the County’s evaluations, saying that due to Lakeside’s planned mitigating measures against negative environmental impacts and due to the County’s assessments that possible noise, traffic and wildlife impacts would be minimal, the court rejects the arguments raised by Citizens.

To read the full opinion, visit courts.wa.gov/opinions/?fa=opinions.disp&filename=855662MAJ.