LEXSEE 1999 WASH. APP. LEXIS 659

> **ROBERT KANNA and VANNETTE KANNA, husband and wife; ROBERT SCHMELING
> and SHERRI SCHMELING, husband and wife; and WILLIAM SCHELL and MARLENE
> SCHELL, husband and wife, Appellants, v. BENTON COUNTY, WASHINGTON, a
> political subdivision of the State of Washington, Respondent, THE CITY
> OF KENNEWICK, WASHINGTON, a municipal corporation, Additional Party.**
>
> **No. 17270-8-III**
>
> **COURT OF APPEALS OF WASHINGTON, DIVISION THREE, PANEL ONE**
>
> ***1999 Wash. App. LEXIS 659***
>
> **April 15, 1999, Filed**

**NOTICE:** **\[\*1\]** RULES OF THE WASHINGTON COURT OF APPEALS MAY
LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE WASHINGTON
RULES OF COURT.

**PRIOR HISTORY:** Appeal from Superior Court of Klickitat County.
Docket No: 97-2-00070-5. Date filed: 02/12/1998. Judge signing: Hon. E.
T. Reynolds.

**DISPOSITION:** Affirmed.

**COUNSEL:** For Appellants: Leanne M. Bremer, Horenstein Bremer PS,
Vancouver, WA.

For Defendants: William L. Cameron, City Attorney, Kennewick, WA.

For Respondent: Ryan K. Brown, Benton Co Prosc Atty Ofc, Kennewick, WA.

**JUDGES:** Authored by Kenneth H Kato. Concurring: Dennis J. Sweeney,
Stephen M. Brown.

**OPINIONBY:** KENNETH H. KATO

**OPINION:**

KATO, J. The owners n1 of 43 acres of land in Benton County appeal a
superior court order affirming a decision of the Benton County Board of
Commissioners denying their application for a preliminary plat. The
landowners contend the County had no authority to deny the plat because
of risks of pesticide migration from a neighboring orchard. They also
contend the County\'s decision is not supported by substantial evidence
in the record, is an unconstitutional taking of private property for
public use, and violates their right of substantive due process. We
affirm. In July 1996, **\[\*2\]** the landowners sought the County\'s
approval of a subdivision containing 89 residential lots in an
unclassified zone. n2 To the south of the proposed development is an
active orchard operated by John C. Pringle. The County\'s Planning and
Building Department issued a Determination of Nonsignificance, requiring
as mitigating measures that the landowners plant arborvitae trees along
the south and east boundaries of the proposed subdivision and that no
residential structures be located within 150 feet of the south and east
boundaries. See *WAC 197-11-340* through -350. The landowners objected
to the 150-foot setback requirement, arguing the County had no authority
to impose such a condition. Because many of the lots on the proposed
development\'s south boundary were less than 150 feet deep, the
requirement would have eliminated those lots or required a redesign of
the plat. The Planning and Building Department then issued a revised
Determination of Nonsignificance, requiring that the landowners plant
poplar trees on the south boundary of the proposed subdivision and that
no residential structures be located within 35 feet of that boundary.
The landowners did not and do not object **\[\*3\]** to these mitigation
measures. After conducting hearings, the County\'s planning commission
recommended denying the plat because of health and safety concerns
related to the neighboring orchard. The board of commissioners agreed
with the commission\'s recommendation, adopted the commission\'s
findings as its own, and denied the plat. The landowners filed this
action in the superior court, asking (among other things) for reversal
of the board\'s decision. The superior court determined it \"just can\'t
conclude anything from \[the board\'s\] findings without making some
assumptions.\" The court thus remanded the case to the board for entry
of more complete findings. n3 The board then entered new findings, among
which are the following:

> n1 The petition names the owners individually, but we refer to them
> collectively as the landowners.
>
> n2 The site is within the Interim Urban Growth Area for the City of
> Kennewick. The proposed subdivision complies with the County\'s
> Comprehensive Plan.
>
> n3 Neither party has appealed this order. The board\'s initial
> findings thus are not at issue here.

**\[\*4\]**

19\. Mr. Pringle testified both orally and through written materials.
This testimony included assertions that his adjacent orchard operations
involve the application of over 50 different kinds of poisons and that
even though no drift is allowed during application, toxic substances
will migrate to the neighboring properties for a period of time after
application through a process known as volatization \[sic\] or
\"lift-off.\" Mr. Pringle further testified that, depending on the
pesticide being used, his employees were prevented under state law from
entering the orchards for up to 72 hours after application unless
protective clothing was worn. The inference \[is\] that the pesticides
do move about for a period of time after application and do pose health
risks. Mr. Pringle testified that in his opinion the proposed
subdivision, as designed, would place the residents of the lots
bordering his orchards in a situation where there would be exposure to
toxic materials.

20\. Mr. Pringle also testified that his orchards function similar to
heavy industrial uses and that at any given time, equipment and people
may be working and operating throughout the day and night. He further
testified **\[\*5\]** that the noise level in his orchards sometimes
rises to a level of 120 decibels due to a variety of sources, including
frost protecting wind machines containing large industrial engines
without mufflers and with twenty foot propellers running at full speed;
chain saws and brush shredding equipment; engine noise from trucks,
tractors, and forklifts; noise from workers; and bird repelling measures
consisting of loud speakers emitting a distress signal and propane
cannons emitting a loud \"bang.\" Mr. Pringle compared the noises
emitted from his orchard to at times being more noisy than a running
helicopter sitting 50 feet away. Mr. Pringle further testified that many
of these noises occur at night and that he has had complaints from other
persons who live near one of his orchards about the loud noise.
Additional testimony by Mr. Pringle was that his orchard activities
include the operation of smudge pots that create smelly smoke; mowers
and tractors that create dust; smoke from brush burning; and bright
lights that would likely shine into the windows and backyards of the
homes proposed to border his orchard.

21\. We find based on Mr. Pringle\'s testimony that poplar trees grow
**\[\*6\]** fast, but are short-lived with a life expectancy of
approximately 20 years at most. The life of such trees would be shorter
if the trees are not adequately watered. Conifer trees generally do have
a longer life than poplars.

22\. Mr. Forgette, an attorney for Mr. Pringle, testified that in his
opinion the proposed plat would lead to less than satisfactory living
conditions for the future residents due to the proximity of residential
lots to the intensive use of Mr. Pringle\'s farmland that will result in
noise, dust, smoke and activity at all hours of the day and night. The
inference is that Mr. Forgette was referring to the residents of the
homes proposed for the South boundary of the Site. Mr. Forgette also
testified about his past experiences regarding lawsuits over pesticide
uses and the disharmony that often results between farmers and
neighboring property owners. Finally, Mr. Forgette supported Mr.
Pringle\'s testimony that there are two kinds of drift of pesticides,
direct drift occurring during application and indirect drift or
\"lift-off\" occurring subsequent to application.

23\. Expert testimony was provided by Dr. Allan Felsot, an associate
professor in the Department **\[\*7\]** of Crop and Soil Sciences at
Washington State University regarding the issues raised pertaining to
the use of pesticides near residences. Given Dr. Felsot\'s expertise and
extensive experience in studying pesticide chemistry and toxicology, we
find much of his testimony very credible. Dr. Felsot testified, orally
and through his written report, that in his expert opinion a 150 foot
buffer was the minimum necessary if the objective was to ensure that
pesticide exposure to nearby residents of the Site was within the
Acceptable Daily Intake (\"ADI\") and ensure the safety of such
residents.

24\. We find Dr. Felsot\'s opinion was based on an acceptable review of
the facts of the matter and the available scientific data. We realize
Dr. Felsot did not have time to do an extensive study, but we find his
testimony more credible with respect to this matter than Ms. Bremer\'s
\[the landowners\' attorney\], because she was relying primarily on
general literature that did not address the particular facts of this
situation. We find, based on the testimony of Dr. Felsot and Mr.
Pringle, that pesticides are sprayed by Mr. Pringle at least four to
five times per year on his apple orchard and **\[\*8\]** four to five
times on his cherry orchard. We further find that at least three
different types of pesticides are used on each orchard, with the most
toxic substance currently used by Mr. Pringle being azinphosmethyl.
Another more toxic chemical, diazinon, may be legally used on cherries,
but currently is not being used. We also find based on Dr. Felsot\'s
testimony that the prevailing winds in the area would carry chemicals
from South to the North.

25\. We believe Dr. Felsot\'s testimony that residences directly
adjacent to the orchards will likely be exposed to pesticide residues
due to the nature of the chemicals, and the hazard resulting from such
exposure is inversely related to the distance the residents are from the
orchard. Therefore, according to Dr. Felsot, a buffer would be
appropriate. Dr. Felsot testified there are no standard figures for the
necessary distance of such buffers for various chemicals, and therefore
he performed his own risk assessment based on available data and certain
assumptions.

26\. Dr. Felsot developed a spray deposition curve using data from a
1993 study involving semi-dwarf apple trees under a diversity of weather
conditions. Using several **\[\*9\]** assumptions, Dr. Felsot indicated
he estimated what a safe deposit zone would be considering the ADIs for
diazinon and azinphosmethyl that are accepted by the World Health
Organization. Dr. Felsot\'s assumptions included: that the target
population to be protected were 10 kg children; the total body surface
area of such children would be exposed and 100% of all deposited residue
would be absorbed; that although inhalation exposure may occur, he
assumed none would occur because that data was not available; all
exposure was assumed to occur within 24 hours of spray application, even
though residues may be found for periods exceeding 24 hours; and the
ADIs were divided by a further factor of 10 (consistent with recent
federal legislation). Based on the above data and assumptions, Dr.
Felsot\'s calculations indicated a minimum safe buffer zone for
azinphosmethyl would be 114 feet, and for diazinon it would be 164 feet.

27\. Dr. Felsot testified that he then reviewed actual spray deposition
data from an experiment conducted in an actual apple orchard where
azinphosmethyl was sprayed and measured 75 feet and 150 feet outside of
the test plot. This experimental data reflected a **\[\*10\]** level of
residue deposit of azinphosmethyl at 150 feet that was in excess of that
estimated by Dr. Felsot\'s calculations. Based on this comparison, we
find Dr. Felsot\'s calculations are not overly conservative. Although
some of Dr. Felsot\'s assumptions were conservative and may have
influenced his calculations in one direction, other assumptions he made
were liberal and influenced his calculations in the opposite direction.
Based on his calculations and review of actual spray deposition data,
Dr. Felsot testified he believed a 150 foot buffer for the Applicants\'
project should be viewed as the minimum buffer zone requirement if the
safety objective is to not cause an exposure that exceeds the ADI for
small children, notwithstanding his testimony that the reportable
incidences of health problems due to orchard spraying were relatively
few. In sum, we find Dr. Felsot\'s assumptions were balanced and his
calculations and opinion to be reliable evidence that alone a 35 foot
setback for the homes on the South border of the Site is inadequate to
provide for the health and safety of the future residents of those
homes.

28\. Dr. Felsot further testified that a mature tree line of
**\[\*11\]** poplars and conifers could decrease the amount of pesticide
residues on neighboring property by a factor of 10, and that poplars of
sufficient size to cause such a result could be reached within two to
three years of planting, provided sufficient irrigating.

29\. Dr. Felsot further testified from personal experience that orchard
operations often cause dust and significant noise that can impact nearby
residents.

30\. Dr. Felsot also testified that in addition to the health risks of
pesticide residues, locating residences in close proximity to spraying
causes anxiety and problems between neighbors due to the public
perception of spray drift dangers.

31\. Counsel for the Applicants, Ms. LeAnn Bremer, testified that she
did not believe the county had the legal authority to require a larger
setback or buffer. The bases for this opinion were her conclusions that:
a) the nearby orchard and not the proposed plat was the cause of any
problems resulting from any incompatibilities in use; and b) protection
from the pesticides applied within the neighboring orchards was
satisfactorily found in regulations issued by the State of Washington
and the EPA. Ms. Bremer cited a state regulation **\[\*12\]** that
prohibits any person from applying pesticides if weather conditions are
such that physical drift may cause damage to adjacent land, humans,
animals or plants, and an EPA regulation requiring a notice to farm
workers of a pesticide application if such workers might pass through
the treated area or any area within 1/4 mile of the treated area during
the application or during any restricted-entry interval after
application. The EPA regulation implies to us that the EPA is concerned
with the travel of pesticides \[sic\] particles to areas outside of the
treated property for a period of time after application.

32\. Ms. Bremer also testified that she believed some of Dr. Felsot\'s
assumptions and analysis were flawed and were inconsistent. Ms. Bremer
further testified that the proposed row of trees on the South border and
a 35 foot rear yard setback from the property line of the neighboring
orchard adequately mitigated any harmful effects of pesticide
application, and that she did not believe that there was sufficient
evidence produced that any drift was going to occur or cause any harm.
In support of her conclusion, Ms. Bremer introduced scientific
literature that explains **\[\*13\]** farming techniques, which she
referred to as Best Management Practices, can be used to minimize drift
or the harmful impacts from drift to thereby reduce the likelihood of
harm. Ms. Bremer then posed the question as to whether Mr. Pringle used
the Best Management Practices, but she did not introduce any evidence
that would indicate Mr. Pringle did not use Best Management Practices.
Ms. Bremer did admit that incompatibility problems may exist if the
development was approved.

33\. Ms. Bremer also testified at various times that the imposition of a
150 foot buffer or setback would result in the loss of somewhere between
21 and 30 lots under the current design of the subdivision. No testimony
was given as to whether the proposed plat could be redesigned in a
manner to accommodate a setback larger than 35 feet while still
maintaining 87 lots or some number close to it.

34\. No evidence was presented as to what degree, if any, a 25 foot or
35 foot rear yard setback along the South border, a row or two of
poplars or conifers, or a fence would diminish the movement of dust,
smoke or noises from the orchards bordering the proposed subdivision.
Based on the uncontroverted testimony **\[\*14\]** of Mr. Pringle, Mr.
Forgette and Dr. Felsot and the reasonable inferences therefrom, we find
that significant noise, dust, smoke, smells and annoying lights will be
generated as part of the adjacent orchard activities at all hours of the
day and night throughout the year. We further find that given the design
of the plat, these conditions will be particularly prevalent in the area
of the small lots proposed along the South border of the Site, these
conditions will likely interfere with the general welfare of the
residents in those lots, and these conditions may cause some potential
health problems at least for any neighbors particularly susceptible to
the effects of smoke or dust. We further find, based on common sense and
the lack of evidence to the contrary, that these negative conditions
will exist notwithstanding a 35 foot rear yard setback, the proposed row
or two of trees, and/or a fence.

35\. Based on the testimony of Mr. Pringle and Dr. Felsot and Ms.
Bremer, the state and federal regulations brought to our attention and
the implications contained in the Applicants\' own proposal, we find
that some pesticide drift, either during application or more likely
after application **\[\*15\]** through the process of volatization
\[sic\], almost certainly will occur and result in the movement of toxic
chemicals from Mr. Pringle\'s orchard to at least the proposed lots
directly adjoining the orchards even with the proposed mitigation
measures. We reach this conclusion after weighing the statements of all
those testifying as well as the credibility and qualifications of each
witness with respect to this issue.

36\. No testimony was provided regarding the size of conifers that the
Applicants would plant along the South border, but the reasonable
inference is that such trees would be seedlings of some sort and would
not be mature for several years given the relatively slow growth of such
trees. Given the Applicants\' proposal to plant six foot high poplars
along with such conifers and Dr. Felsot\'s testimony, we find that such
trees would not significantly reduce any pesticide residue movement for
at least two years from the time of planting.

37\. Although the Applicants indicated a willingness to replace any
poplars or conifers that may die within two years of planting, we find
these trees cannot be relied upon to reduce the pesticide movement. At
best, that proposal **\[\*16\]** ensures some limited benefit for only
two years, and at worst it would prove impractical or illegal to enforce
and therefore of absolutely no benefit. No mechanisms were discussed or
proposed that would ensure that the future purchasers of the bordering
lots would care for and water the poplar and conifer trees or that would
prevent those future owners from removing such trees that are on their
property.

38\. Based on the above, we find that we cannot rely on the Applicants\'
proposed tree line or lines to adequately mitigate the movement of
pesticide residues to the Site.

39\. We find based on Mr. Pringle\'s and Dr. Felsot\'s testimony, that
the proposed placement of homes within 35 feet of the commercial
orchards to the South would pose an unacceptable degree of health and
safety risks to the residents of such homes due to the relatively
frequent application of toxic chemicals nearby. We find at least a rear
yard setback from the edge of the adjacent orchards significantly
greater than the 35 feet proposed would be necessary to sufficiently
mitigate the health and safety risks, but given the depths of the
bordering lots such setbacks cannot be imposed and allow the plat,
**\[\*17\]** as designed, to be implemented. The testimony of Ms. Bremer
that these health and safety risks can be minimized by utilization of
Best Management Practices is unpersuasive. First, Dr. Felsot based his
analysis on Mr. Pringle\'s practices and there was no evidence submitted
that would indicate Mr. Pringle does not use Best Management Practices.
Second, the continued use of the term minimized by Ms. Bremer, the
testimony of Mr. Pringle and Dr. Felsot, and the state and federal
regulations cited indicate that a significant degree of risk will exist
due to placing residential structures within 25 or 35 feet of commercial
orchards. There are competing inferences based on the testimony
presented as to whether this degree of risk is acceptable. Given our
views regarding the credibility and expertise of the various witnesses,
particularly the testimony of Dr. Felsot, we find that the risk is real
and its degree is not acceptable. Therefore, we find that the Applicants
have not made adequate provisions for the health and safety risks to the
future residents of those living along the South border of the Site due
to neighboring pesticide use.

40\. We further find that although the **\[\*18\]** identified potential
adverse effects to the health, safety and general welfare of the future
residents of the Site would initially derive from the legal use of the
neighboring property as orchards, it is the design of the Applicants\'
plat, particularly the placement and size of the small lots directly
bordering the orchards, that will cause such potential interference with
the health, safety and welfare to actually come into existence.

41\. Given the design of the plat, particularly the shallow depths of
the bordering lots, we find that no reasonable mitigation measures were
or could be proposed to allow this plat, as designed, to be implemented
and still satisfactorily mitigate the adverse conditions and allow us to
find that adequate provisions have been made for the public health,
safety and general welfare or to find that the plat would be in the
public\'s best interest.

42\. We find that the assertion regarding a required loss of 21-30 lots
to mitigate the problems is not reasonable or necessarily accurate. The
plat conceivably could be redesigned in a number of ways that could
address the identified problems without eliminating that many, if any,
lots.

43\. We find **\[\*19\]** that the proposed use, as designed, is not
compatible with the existing agricultural uses to the South.

44\. We find that the proposed preliminary plat is consistent with the
Comprehensive Plan\'s designation of the Site as suitable \[for\]
residential use, but that the plat, as designed, is not consistent with
our policies in the Comprehensive Plan regarding incompatible adjacent
agricultural and residential uses. Based on these findings and its
authority under *RCW 58.17.110*, the board again denied the plat.

The superior court held the board\'s findings were supported by
substantial evidence and its denial was not based on an erroneous
interpretation of the law, was not clearly erroneous, and did not
violate the landowners\' rights under the federal or state
constitutions. The superior court dismissed the land use petition, and
the landowners appeal.

A party seeking relief from a land use decision bears the burden of
establishing that one or more of the following standards is met: (a) The
body or officer that made the land use decision engaged in unlawful
procedure or failed to follow a prescribed process, unless the error was
harmless; (b) The land use decision is an erroneous **\[\*20\]**
interpretation of the law, after allowing for such deference as is due
the construction of a law by a local jurisdiction with expertise; (c)
The land use decision is not supported by evidence that is substantial
when viewed in light of the whole record before the court; (d) The land
use decision is a clearly erroneous application of the law to the facts;
(e) The land use decision is outside the authority or jurisdiction of
the body or officer making the decision; or (f) The land use decision
violates the constitutional rights of the party seeking relief. *RCW
36.70C.130(1)*. The landowners contend on appeal that the County\'s
decision implicates standards (b), (c), (d), and (f). The dispositive
issue involves standard (b). The landowners contend the County\'s
authority is limited to that granted in the State Environmental Policy
Act (SEPA), which provides that an agency may deny or place conditions
on a proposal: PROVIDED, That such conditions or denials shall be based
upon policies identified by the appropriate governmental authority and
incorporated into regulations, plans, or codes which are formally
designated by the agency (or appropriate legislative body, in the case
**\[\*21\]** of local government) as possible bases for the exercise of
authority pursuant to this chapter. Such designation shall occur at the
time specified by *RCW 43.21C.120*. Such action may be conditioned only
to mitigate specific adverse environmental impacts which are identified
in the environmental documents prepared under this chapter. These
conditions shall be stated in writing by the decisionmaker. Mitigation
measures shall be reasonable and capable of being accomplished. In order
to deny a proposal under this chapter, an agency must find that: (1) The
proposal would result in significant adverse impacts identified in a
final or supplemental environmental impact statement prepared under this
chapter; and (2) reasonable mitigation measures are insufficient to
mitigate the identified impact. *RCW 43.21C.060*. The landowners argue
any denial for environmental reasons must follow SEPA\'s substantive and
procedural requirements. But *RCW 43.21C.060* unequivocally provides
that the SEPA requirements \"are supplementary to those set forth in
existing authorizations of all branches of government of this state,
including state agencies, municipal and public corporations, and
counties.\" See **\[\*22\]** *Department of Natural Resources v.
Thurston County, 92 Wash. 2d 656, 663, 601 P.2d 494 (1979),* appeal
dismissed and cert. denied, *449 U.S. 830, 66 L. Ed. 2d 35, 101 S. Ct.
98 (1980).* Thus, SEPA is not the only basis upon which an agency may
disapprove a project because of environmental concerns. Here, the County
acted pursuant to *RCW 58.17.110*, which requires a legislative body, in
considering a subdivision request, to determine \"(a) if appropriate
provisions are made for, but not limited to, the public health, safety,
and general welfare . . .; and (b) whether the public interest will be
served by the subdivision and dedication.\" Because SEPA\'s requirements
are supplementary to all other requirements, the authority granted in
*RCW 58.17.110* is not limited by SEPA. The landowners also contend,
however, that the County has no authority to deny their proposal on the
basis of environmental concerns arising from neighboring property. *WAC
16-228-185* provides in pertinent part: (2) No person shall transport,
handle, store, load, apply, or dispose of any pesticide . . . in such a
manner as to . . . cause damage or injury to land, including humans,
desirable plants and animals, or **\[\*23\]** wildlife . . . . Toxicity,
volatility, and mobility of pesticides shall be considered in complying
with this subsection. . . . . (5) No person shall apply pesticides if
weather conditions are such that physical drift or volatilization may
cause damage to adjacent land, including humans, desirable plants or
animals. Nothing in the record indicates Mr. Pringle applied pesticides
in violation of this regulation. In Washington, pesticide applicators
are strictly liable for damages caused to neighboring lands. *Langan v.
Valicopters, Inc., 88 Wash. 2d 855, 567 P.2d 218 (1977);* see generally
Robert F. Blomquist, Applying Pesticides: Toward Reconceptualizing
Liability To Neighbors For Crop, Livestock and Personal Damages from
Agricultural Chemical Drift, *48 Okla. L. Rev. 393, 402-412 (1995).* To
the extent that its denial was based on fears of pesticide drift from
Mr. Pringle\'s orchard, the County impliedly assumed both that Mr.
Pringle\'s pesticides migrated beyond the boundaries of his orchard and
that this practice was lawful. The truth of the first assumption is
supported by the record even though he uses the utmost care in applying
pesticides. The second assumption, which essentially **\[\*24\]** is a
conclusion of law, is not erroneous. Strict liability for damages is not
predicated on whether the actor\'s conduct was unlawful. See *Langan, 88
Wash. 2d at 860.* The risk of harm from a neighbor\'s lawful activity
was properly considered by the board. Although pesticide dangers appear
to be the County\'s primary concern, the board also found that noise,
dust, smoke, and lights from the orchard would interfere with the
\"general welfare\" of the proposed subdivision\'s residents. See
Findings 20, 22, 29, 34. These conditions directly implicate
Washington\'s right-to-farm statute: Notwithstanding any other provision
of this chapter, agricultural activities conducted on farmland and
forest practices, if consistent with good agricultural and forest
practices and established prior to surrounding nonagricultural and
nonforestry activities, are presumed to be reasonable and shall not be
found to constitute a nuisance unless the activity has a substantial
adverse effect on the public health and safety. If those agricultural
activities and forest practices are undertaken in conformity with all
applicable laws and rules, the activities are presumed to be good
agricultural and forest **\[\*25\]** practices not adversely affecting
the public health and safety for purposes of this section and *RCW
7.48.300*. An agricultural activity that is in conformity with such laws
and rules shall not be restricted as to the hours of the day or day or
days of the week during which it may be conducted. Nothing in this
section shall affect or impair any right to sue for damages. *RCW
7.48.305*. The Supreme Court recently explained the historical
background of right-to-farm statutes generally: During the 1970\'s and
early 1980\'s, every state except South Dakota enacted what are
generally referred to as right-to-farm statutes. Neil D. Hamilton &
David Bolte, Nuisance Law and Livestock Production in the United States:
A Fifty-State Analysis, 10 J. Agric. Tax\'n & L. 99, 101 (1988).
Right-to- farm statutes were created to address a growing concern that
too much farmland was being overtaken by urban sprawl. Margaret Rosso
Grossman & Thomas G. Fischer, Protecting the Right to Farm: Statutory
Limits on Nuisance Actions Against the Farmer, Wis. L. Rev. 95, 97
(1983) (hereinafter Grossman & Fischer). As more urban dwellers moved
into agricultural areas, nuisance lawsuits by those urbanites threatened
**\[\*26\]** the existence of many farms. Nuisance suits frustrated
farming operations and encouraged farmers to sell to developers,
continuing the cycle. Id.

Most of the right-to-farm statutes adopted across the country codified
the common law defense of \"coming to the nuisance.\" Grossman & Fischer
at 118. Plaintiffs who purchase or improve property, after the
establishment of a local nuisance activity, have \"come to the
nuisance.\" While this fact did not absolutely bar the plaintiff\'s
nuisance action, it was one factor to be considered in whether to grant
the plaintiff relief. *Restatement (Second) of Torts sec. 840D* (1977).
*Buchanan v. Simplot Feeders, Ltd. Partnership, 134 Wash. 2d 673,
677-78, 952 P.2d 610 (1998).* Under *RCW 7.48.305*, agricultural
activity is presumed to be reasonable and is not a nuisance when: \"(1)
the activity does not have a substantial adverse effect on public health
and safety; (2) the activity is consistent with good agricultural
practices, laws, and rules; and (3) the activity was established prior
to surrounding nonagricultural activities.\" *Buchanan, 134 Wash. 2d at
680.*

Assuming Mr. Pringle\'s orchard operation does not substantially affect
neighboring **\[\*27\]** residents\' health and safety and is consistent
with good agricultural practices and laws, the right-to-farm statute
would shield him from nuisance liability. n4 Residents of the proposed
subdivision thus would have no recourse against Mr. Pringle despite the
nuisance-like conditions. The resulting tension between residential and
agricultural uses arguably would affect the \"general welfare\" of the
subdivision\'s residents. Certainly the County had the authority under
*RCW 58.17.110* to consider whether the proposed plat was compatible
with the lawful operation of the neighboring orchard.

> n4 *RCW 7.48.305* would not apply if the orchard operation
> substantially affected neighbors\' health and safety. Also, the
> statute does not bar other non-nuisance claims. See *Buchanan, 134
> Wash. 2d at 685-91.*

We briefly will address the landowners\' other arguments, which
challenge the legality of the board\'s decision. First, they contend the
board\'s findings are legally insufficient and unsupported by
substantial evidence. **\[\*28\]** Much of their argument on this issue
relates to the board\'s findings regarding the risk of pesticide use.
\"The test of substantial evidence is whether evidence is sufficient to
persuade a fair-minded person of the truth of the declared premise.\"
*Sparks v. Douglas County, 127 Wash. 2d 901, 910, 904 P.2d 738 (1995).*
In considering the testimony on this issue, the board found Dr. Felsot
more credible than the landowner\'s attorney. Substantial evidence
supports the board\'s findings as to the use of pesticides. Regarding
noise, smoke, dust and lights, the landowners contend in part that the
board\'s findings are legally deficient. \"Findings of fact by an
administrative agency are subject to the same requirement as are
findings of fact drawn by a trial court.\" *State ex rel. Bohon v.
Department of Pub. Serv., 6 Wash. 2d 676, 694, 108 P.2d 663 (1940);*
*State ex rel. Duvall v. City Coun., 64 Wash. 2d 598, 602, 392 P.2d 1003
(1964).* The purpose of findings of fact is to ensure that the
decisionmaker \"has dealt fully and properly with all the issues in the
case before he \[or she\] decides it and so that the parties involved\"
and the appellate court \"may be fully informed as to the bases
**\[\*29\]** of his \[or her\] decision when it is made.\" (Quotation
marks and citations omitted.) *In re LaBelle, 107 Wash. 2d 196, 218-19,
728 P.2d 138 (1986).* Findings must be made on matters \"which establish
the existence or nonexistence of determinative factual matters . . .\".
In re LaBelle, at 219. The process used by the decisionmaker should be
revealed by findings of fact and conclusions of law. *Hayden v. Port
Townsend, 28 Wash. App. 192, 622 P.2d 1291 (1981).* Statements of the
positions of the parties, and a summary of the evidence presented, with
findings which consist of general conclusions drawn from an
\"indefinite, uncertain, undeterminative narration of general conditions
and events\", are not adequate. *State ex rel. Bohon, 6 Wash. 2d at
695.* *Weyerhaeuser v. Pierce County, 124 Wash. 2d 26, 35-36, 873 P.2d
498 (1994).* It is not unusual for written findings to be more detailed
than the wording of the governmental body\'s motion, and \"the important
aspect is that the decision be consistent with the issues discussed in
open hearing and the oral decision made at that time.\" *Snohomish
County Improvement Alliance v. Snohomish County, 61 Wash. App. 64, 72,
808 P.2d 781 (1991);* see *Tugwell* **\[\*30\]** *v. Kittitas County, 90
Wash. App. 1, 14, 951 P.2d 272 (1997).*

In this case, the board\'s revised findings quoted above are more
detailed than the board\'s or the commission\'s decisions, and many of
the findings are simply statements of the parties\' positions and
summaries of the evidence presented. However, in Finding 34, the board
specifically found that Mr. Pringle\'s orchard operations would create
significant noise, dust, smoke, and annoying lights, that these
conditions would be most prevalent near the boundary between the orchard
and the proposed subdivision, that these conditions would interfere with
the residents\' general welfare, and that there was no evidence the
landowners\' proposed measures would adequately mitigate these concerns.
These findings are consistent with the issues discussed in the hearings.
Also, the findings support Finding 43\'s ultimate finding that the plat,
as proposed, was incompatible with the existing agricultural use to the
south. The findings are not deficient.

The landowners also contend the findings are not supported by
substantial evidence. Mr. Pringle presented evidence that his operations
created noise, dust, and smells during all **\[\*31\]** hours and
seasons and often involved use of bright lights at night. This
uncontroverted testimony is enough to persuade a fair-minded person that
the existing agricultural use would be incompatible with the proposed
plat, even with the landowners\' mitigation measures. The findings are
supported by substantial evidence. *Sparks, 127 Wash. 2d at 910.* The
landowners next contend the County\'s decision is an unconstitutional
taking of private property for public use. The landowners concede their
taking claim is not ripe under federal constitutional analysis, but they
argue it is ripe under Wash. Const. art. I, sec. 16 (amend. 9). n5
Division Two of this court, after analyzing the six-factor Gunwall n6
test, recently concluded that the takings clauses of art. I, sec. 16 and
the Fifth Amendment to the United States Constitution are coextensive
and the state clause provides no greater protection than the federal
clause. *Manufactured Housing Communities v. State, 90 Wash. App. 257,
261-66, 951 P.2d 1142 (1998).* The landowners have not addressed the
Gunwall factors in the context of this case, and we thus do not consider
their contention. The landowners also contend, however, that the
**\[\*32\]** County\'s decision violated their right of substantive due
process. Even if a governmental action is not an unconstitutional
taking, it still may violate a property owner\'s right of substantive
due process under the *Fourteenth Amendment to the United States
Constitution. Sintra, Inc. v. City of Seattle, 119 Wash. 2d 1, 829 P.2d
765,* cert. denied, *506 U.S. 1028, 113 S. Ct. 676, 121 L. Ed. 2d 598
(1992).* \"A substantive due process claim need not show that no viable
use of the property remains, but rather that any interference with
property rights was irrational or arbitrary.\" *Sintra, 119 Wash. 2d at
21* (citations omitted). The ripeness rules that apply to takings claims
do not apply to claims based on substantive due process because the harm
occurs at the time of the due process violation. *Mission Springs, Inc.
v. City of Spokane, 134 Wash. 2d 947, 964-65, 954 P.2d 250 (1998);*
*Sintra, 119 Wash. 2d at 21 n.11.* Because a substantive due process
claim arises indirectly from a claim under *42 U.S.C. sec. 1983,* n7
federal case law applies. See *Mission Springs, 134 Wash. 2d at 968.*

> n5 The section provides: \"Private property shall not be taken for
> private use, except for private ways of necessity, and for drains,
> flumes, or ditches on or across the lands of others for agricultural,
> domestic, or sanitary purposes. No private property shall be taken or
> damaged for public or private use without just compensation having
> been first made, or paid into court for the owner, and no right-of-way
> shall be appropriated to the use of any corporation other than
> municipal until full compensation therefor be first made in money, or
> ascertained and paid into court for the owner, irrespective of any
> benefit from any improvement proposed by such corporation, which
> compensation shall be ascertained by a jury, unless a jury be waived,
> as in other civil cases in courts of record, in the manner prescribed
> by law. Whenever an attempt is made to take private property for a use
> alleged to be public, the question whether the contemplated use be
> really public shall be a judicial question, and determined as such,
> without regard to any legislative assertion that the use is public:
> Provided, That the taking of private property by the state for land
> reclamation and settlement purposes is hereby declared to be for
> public use.\"

**\[\*33\]**

> n6 *State v. Gunwall, 106 Wash. 2d 54, 720 P.2d 808, 76 A.L.R.4th 517
> (1986).*
>
> n7 The statute provides in pertinent part: \"Every person who, under
> color of any statute, ordinance, regulation, custom, or usage, of any
> State or Territory or the District of Columbia, subjects, or causes to
> be subjected, any citizen of the United States or other person within
> the jurisdiction thereof to the deprivation of any rights, privileges,
> or immunities secured by the Constitution and laws, shall be liable to
> the party injured in an action at law, suit in equity, or other proper
> proceeding for redress.\"

The determinative question here is whether the landowners may raise a
substantive due process claim in this context. *Macri v. King County,
126 F.3d 1125 (9th Cir. 1997),* cert. denied, *522 U.S. 1153, 140 L. Ed.
2d 186, 118 S. Ct. 1178 (1998),* is directly on point. In that case,
King County denied a plat application under *RCW 58.17.110*. *126 F.3d
at 1127.* The landowners filed a Section 1983 action in superior court
alleging, among other things, violation of their substantive due process
rights and a taking of property without **\[\*34\]** just compensation.
Id. King County removed the action to the federal district court, which
dismissed the taking claim because it was not ripe and the substantive
due process claims on grounds the landowners had not proven a violation
of their due process rights. Id.

On appeal, the Ninth Circuit court affirmed. Addressing the substantive
due process claim, the court held that \"when an explicit textual
provision of the Constitution protects against the challenged government
action, the claim must be analyzed under that specific provision alone
and not under the more general guarantee of substantive due process.\"
*126 F.3d at 1128* (citing *Armendariz v. Penman, 75 F.3d 1311, 1325-26
(9th Cir.1996)).* The Supreme Court has repeatedly recognized that a
land use restriction that does not \"substantially advance legitimate
state interests\" or \"denies an owner economically viable use of his
land\" effects a taking. *Agins v. City of Tiburon, 447 U.S. 255, 260,
100 S. Ct. 2138, 2141, 65 L. Ed. 2d 106 (1980);* *Nollan v. California
Coastal Comm\'n, 483 U.S. 825, 834, 107 S. Ct. 3141, 3147, 97 L. Ed. 2d
677 (1987);* *Dolan v. City of Tigard, 512 U.S. 374, 383-85, 114 S. Ct.
2309, 2316, 129 L. Ed. 2d 304* **\[\*35\]** *(1994).* In Dolan, the
Supreme Court reaffirmed that the Fifth Amendment\'s Takings Clause
applies to the states through the Fourteenth Amendment, rejecting the
suggestion that the case was actually grounded in substantive due
process. If Appellants can prove that King County denied their plat
application without advancing a legitimate state interest or under
circumstances denying them any economically viable use of their
property, King County\'s actions would constitute a taking. Since the
Takings Clause \"provides an explicit source of constitutional
protection\" against the challenged governmental conduct, substantive
due process has no place in this context. *Armendariz, 75 F.3d at 1325;*
see *Patel v. Penman, 103 F.3d 868 (9th Cir. 1996).* *126 F.3d at 1129.*
n8 Under federal law, the takings clause provides the appropriate remedy
for the landowners\' alleged damages in this context. The superior court
did not err in rejecting their substantive due process claims. Both
parties have requested attorney fees on appeal. The landowners\' claim
is based on *42 U.S.C. sec. 1988,* which provides for fees in a Section
1983 action. Because there is no basis for their substantive due process
**\[\*36\]** claim under Section 1983, they are not entitled to fees.

> n8 An additional concern for the Macri court was that the substantive
> due process claim should not be an easy \"loophole\" for avoiding the
> ripeness doctrine for takings claims. *Macri, 126 F.3d at 1128-29.*

The County requests fees under *RCW 4.84.370(1)*, which provides:
Notwithstanding any other provisions of this chapter, reasonable
attorneys\' fees and costs shall be awarded to the prevailing party or
substantially prevailing party on appeal before the court of appeals or
the supreme court of a decision by a county, city, or town to issue,
condition, or deny a development permit involving a site-specific
rezone, zoning, plat, conditional use, variance, shoreline permit,
building permit, site plan, or similar land use approval or decision.
The court shall award and determine the amount of reasonable attorneys\'
fees and costs under this section if: (a) The prevailing party on appeal
was the prevailing or substantially prevailing party before the county,
**\[\*37\]** city, or town, or in a decision involving a substantial
development permit under chapter 90.58 RCW, the prevailing party on
appeal was the prevailing party or the substantially prevailing party
before the shorelines hearings board; and (b) The prevailing party on
appeal was the prevailing party or substantially prevailing party in all
prior judicial proceedings.

The County is the prevailing party and is awarded its attorney fees on
appeal.

Affirmed.

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*.

Kato, J.

WE CONCUR:

Sweeney, A.C.J.

Brown, J.