IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

ROSSI LARSON, LLC, a Washington 

limited liability company, MELISSA 

ROSSI and NICK ROSSI,

Appellants,

v.

CHELAN COUNTY, BERGREN TREE 

FRUITS, LLC; CARNAN BERGREN; 

and DAN BEARDSLEE,

Respondents.

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No. 39614-2-III

UNPUBLISHED OPINION

COONEY, J. — In 2020, Bergren Tree Fruits, LLC (Bergren) through their 

agent/applicant, Dan Beardslee, applied to Chelan County (County) for a planned 

development and major subdivision located on approximately 42 acres of former orchard 

land owned by Bergren. Following a State Environmental Policy Act (SEPA)1review, a 

threshold determination was made and a mitigated determination of nonsignificance 

 

1 Chapter 43.21C RCW.

FILED

MARCH 19, 2024

In the Office of the Clerk of Court

WA State Court of Appeals Division III
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Rossi Larson LLC, et al. v. Chelan County, et al.

2

(MDNS) was issued. Nick and Melissa Rossi (Rossis), who own an orchard near the 

planned development, appealed the issuance of the MDNS. Following a multi-day 

hearing process, the hearing examiner conditionally approved the application and 

affirmed issuance of the MDNS. 

The Rossis appeal the conditional approval of the application as well as the 

hearing examiner’s affirmance of the MDNS. The Rossis argue that the hearing 

examiner’s findings are inadequate for review, that the project does not comply with the 

Peshastin urban growth area comprehensive plan, that the hearing examiner’s decision 

conditionally approving the application violates numerous Chelan County Code (CCC) 

provisions, and that the hearing examiner’s affirmance of the MDNS violates SEPA. We 

disagree and affirm. 

BACKGROUND

In 2008, the County created the Peshastin Urban Growth Area (UGA) and adopted 

the Peshastin UGA Comprehensive Plan (Comprehensive Plan). The Comprehensive 

Plan incorporated various goals and policies from the Peshastin UGA related to housing, 

land use, zoning, and transportation, among other things. 

Bergren owns approximately 42 acres of vacant land (Property) located within 

Peshastin’s UGA and is zoned low density residential (R-1). The Property is located 

north of Derby Canyon Road along Larson Road in Peshastin, Washington. In 2020, Mr. 

Beardslee (Applicant) filed an application for a planned development and a major 
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subdivision to be located on the approximately 42 acres of land owned by Bergren. The 

application proposed 134 lots of residential development for detached single-family 

residences, accessory dwelling units (ADU), duplexes, and townhouses (the Project). 

Included with the application, among other items, was a preliminary site plan and 

road plan, geological hazards report, narrative description, domestic water availability 

letter, sanitary sewer availability letter, a stormwater control plan authored by Torrence 

Engineering LLC, and a traffic impact study (TIS). The County recommended the 

Project be approved. 

SEPA REVIEW

During the application phase, the Applicant submitted an environmental checklist 

to the County pursuant to the SEPA. The County received numerous comments from 

both the public and governmental agencies, including Chelan County Public Works, 

Chelan County Public Utility District No. 1 (PUD), Department of Ecology (Ecology), 

and the Washington State Department of Transportation (WSDOT), among others. The 

County considered the comments and completed an environmental review. Based on the 

threshold determination, a final MDNS was issued by the County’s SEPA responsible 

official. 

The application also included a TIS, authored by Michael Read, that analyzed the 

Project’s impact on traffic and was subsequently revised. The WSDOT reviewed the 
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revised TIS and had no comments. Due to the resulting impacts on traffic under the 

revised TIS, conditions were incorporated into the MDNS to mitigate potential effects. 

Additionally, soils on the property were tested and found to be contaminated due 

to past orchard operations. Ecology recommended that the model remedies for cleanup 

of former orchard properties in Central and Eastern Washington (Model Remedy) be used 

to clean up the site. Ecology also recommended that the Model Remedy developer 

agreement be used to “avoid placing the burden of cleanup on purchasers of vacant lots.”

Clerk’s Papers (CP) at 943. Both of Ecology’s recommendations were incorporated into 

the MDNS. 

The MDNS also included other mitigating conditions related to domestic water 

service, sanitary sewer service, sewage disposal, stormwater drainage, and archaeological 

resources potentially present at the site of the Project. 

SEPA APPEAL AND CONDITIONAL APPROVAL OF THE PROJECT

The Rossis filed an appeal of the MDNS. They contend that the Model Remedy 

was not adequate to mitigate the environmental impacts of the contaminated soils, that 

the conditions in the MDNS related to traffic impacts were not adequate, that the 

conditions in the MDNS were insufficient to eliminate the Project’s adverse impacts on 

land use compatibility, that the MDNS did not properly mitigate risks to irrigation lines, 

and that the SEPA responsible official did not have sufficient information to make the 

SEPA determination. 
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The hearing examiner conducted a multi-day hearing process and took evidence 

from numerous expert and lay witnesses testifying for and against approval of the 

Project’s application and the MDNS. Among the individuals who testified for the Rossis 

were: Nick Rossi; Pam Jenkins, an expert witness who testified regarding potential health 

impacts of the contaminated soils; Katie Saltanovitz, an expert witness who testified 

regarding stormwater and erosion; and Kassi Leingang, an expert witness who testified 

regarding traffic impacts. 

In August and then September 2022, the hearing examiner issued: (1) findings of 

fact, conclusions of law, decision and conditions of approval conditionally approving 

the Project (Conditioned Approval), and (2) his decision on appeal of the SEPA 

determination for the Pine Ridge planned development, affirming the MDNS. The Rossis 

moved for reconsideration and the hearing examiner issued a decision on requests for 

reconsideration that made some minor corrections to the Conditioned Approval and his 

decision affirming the MDNS. 

In the Conditioned Approval, the hearing examiner concluded the Application 

“demonstrate[d] consistency with the goals and policies set forth in the Chelan County 

Comprehensive Plan” and “as conditioned, is compatible with adjacent uses and would 

not harm or change the character of the surrounding area.” CP at 773. The hearing 

examiner also issued 66 conditions of approval of the application. 
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In its decision on the SEPA appeal, the hearing examiner found the Rossis’ claims 

related to impacts to irrigation lines were speculative, and the hearing examiner had 

enough information to issue the MDNS. 

The hearing examiner found the Rossis’ experts unconvincing. The hearing 

examiner found the “factual study and opinions by traffic expert, Michael Reed [sic] were 

more convincing that [sic] those opinions issued by Appellant’s expert, Kassi Leingang.” 

CP at 1627. The hearing examiner found “it significant that Ms. Leingang did not do any 

data collection regarding traffic counts on any roads, but instead based her understanding 

of traffic volumes on discussions with area residents and employees.” CP at 64, 1627. 

As to Ms. Jenkins, the hearing examiner found “her testimony and opinions were 

not convincing and . . . her purported opinions regarding health risks were not 

convincing.” CP at 1627. Instead, Ms. Jenkins “simply disagreed with the Department 

of Ecology’s proposal to mitigate soil contamination on the site [using the Model 

Remedy].” CP at 1627. Finally, as to Ms. Saltanovitz, the hearing examiner rejected her

expert testimony stating “that the Applicant’s stormwater plan was not adequate, [wa]s 

not more convincing that [sic] the report submitted by John Torrence.” CP at 1627. 

The hearing examiner concluded that the threshold determination was based on 

sufficient information and that it fully and fairly evaluated all known or probable 

environmental impacts. The MDNS was therefore affirmed. 
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The Rossis appeal pursuant to RCW 36.70C.150.2

ANALYSIS

I. WHETHER THE HEARING EXAMINER ENTERED ADEQUATE FINDINGS OF FACT AND 

CONCLUSIONS OF LAW 

The Rossis argue that the hearing examiner’s findings of fact and conclusions of 

law on their appeal of the SEPA determination are inadequate to permit meaningful 

review.3 They cite Weyerhaeuser v. Pierce County, 124 Wn.2d 26, 873 P.2d 498 (1994),

and urge us to remand for proper findings, as the court did in Weyerhaeuser. Bergren and 

the County respond that the hearing examiner’s findings and conclusions are detailed and 

sufficient for judicial review and are in stark contrast to those in Weyerhaeuser. We 

agree with Bergren and the County. 

Findings of fact by an administrative agency are subject to the same requirements 

as those drawn by a trial court. State ex rel. Bohon v. Dep’t of Pub. Serv., 6 Wn.2d 676, 

694, 108 P.2d 663 (1940); State ex rel. Duvall v. City Council of City of Seattle, 64 

Wn.2d 598, 602, 392 P.2d 1003 (1964). “The purpose of findings of fact is to ensure that 

 

2

“The superior court may transfer the judicial review of a land use decision to the 

court of appeals upon finding that all parties have consented to the transfer to the court of 

appeals and agreed that the judicial review can occur based upon an existing record. 

Transfer of cases pursuant to this section does not require the filing of a motion for 

discretionary review with the court of appeals.” RCW 36.70C.150(1). 

3 The Rossis, in their issues pertaining to the assignments of error, also challenge 

the findings and conclusions related to the Conditioned Approval. However, they 

provide no substantive argument related to the findings of the planned development’s 

approval so that issue is not addressed. 
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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 of his [or her] decision when it is made.’” Weyerhaeuser, 124 

Wn.2d at 35 (alterations in original) (quoting In re Det. of LaBelle, 107 Wn.2d 196, 

218-19, 728 P.2d 138 (1986). The process the decisionmaker used should be revealed 

by the findings of fact and conclusions of law. Hayden v. City of Port Townsend, 28 Wn. 

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.” Weyerhaeuser, 124 Wn.2d at 36 (citing Bohon, 6 Wn.2d 

at 695). 

The Rossis cite Weyerhaeuser and contend that, like Weyerhaeuser, the hearing 

examiner here failed to issue adequate findings. We disagree. 

In Weyerhaeuser, the Washington Supreme Court found the hearing examiner’s 

decision upholding an environmental impact statement (EIS) inadequate because it failed 

to explain how it reached its conclusions. The court noted that the “bulk of the hearing 

examiner’s decision documents consist[ed] of summarizing evidence presented, without 

any guidance as to how issues involving disputed evidence were resolved by the hearing 

examiner.” Id. As an example, the court pointed to the issue of whether the proposal was 

public or private. The only finding on that issue was: “The proposal advanced by the 
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applicant is for a private project as defined by WAC 197-11-780.” Id. The same exact 

sentence was then repeated as a conclusion of law. Id. The court ruled that “[t]he 

findings and conclusions [were] clearly inadequate to determine the basis for the hearing 

examiner’s decision upholding the adequacy of the EIS.” Id. “While a finding recites 

that the project is a private project, there is no clue as to the basis for that conclusion.” 

Id.

Bergren points to Citizens Alliance to Protect Our Wetlands v. City of Auburn, 

decided a year after Weyerhaeuser, in which the Washington Supreme Court called 

Weyerhaeuser “an extreme case of noncompliance.” 126 Wn.2d 356, 369, 894 P.2d 1300 

(1995). The court in Citizens ruled that the hearing examiner’s findings and conclusions 

were adequate where it “filed a single-spaced 10-page ruling with substantial analysis of 

every issue.” Id. The court concluded that “[b]ecause a reviewing court can determine 

the basis for her decision, the hearing examiner’s findings are sufficient.” Id. 

Here, unlike in Weyerhaeuser, the hearing examiner issued detailed findings and 

conclusions illustrating the basis for his decisions. The Rossis point specifically to the 

hearing examiner’s finding’s that Ms. Saltanovitz’s and Ms. Jenkins’ testimony was not 

convincing, and argue the hearing examiner did not adequately explain why. The Rossis’

argument boils down to a disagreement with the hearing examiner’s credibility 

determinations. 
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As to Ms. Saltanovitz, the hearing examiner found her expert testimony stating 

“that the Applicant’s stormwater plan was not adequate, [wa]s not more convincing that 

[sic] the report submitted by John Torrence. Additionally, any erosion or sediment 

control plan will need to be approved by the Washington State Department of Ecology 

and meet statewide standards.” CP at 1627. The Rossis argue that this finding is similar 

to the findings in Weyerhaeuser and does not permit adequate judicial review. The 

Rossis contend the hearing examiner dismissed Ms. Saltanovitz’s testimony without 

explaining why. But the hearing examiner sufficiently explained why. The hearing 

examiner noted he found the report submitted by John Torrence more persuasive. Clearly 

this was a contested issue with conflicting evidence from both sides and this court must 

defer to the hearing examiner’s credibility determinations. City of Univ. Place v. 

McGuire, 144 Wn.2d 640, 652-53, 30 P.3d 453 (2001). The Rossis may disagree with 

the hearing examiner’s credibility determination but that does not render the finding 

inadequate. 

As to Ms. Jenkins’ testimony, the hearing examiner found

her testimony and opinions were not convincing and . . . her purported 

opinions regarding health risks were not convincing to the Hearing 

Examiner. She simply disagreed with the Department of Ecology’s 

proposal to mitigate soil contamination on the site. However, the soil 

contamination on the site and the mitigation was fully considered by the 

SEPA responsible official.
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CP at 1627. Again, the hearing examiner found Ecology’s proposal more convincing and 

the Rossis disagree with that determination. However, the hearing examiner’s finding 

illustrates the basis for his decision; he found Ecology’s proposal more convincing and 

noted that Ms. Jenkins merely disagreed with it. 

In the Appellants’ statement of additional authorities, the Rossis cite Regan v. 

Department of Licensing4and State v. C.J.5to support their argument that, “[u]nless the 

credibility finding includes a statement of the basis for the credibility determination, it 

would be impossible for the reviewing court to determine whether there was substantial 

evidence to support the credibility determination.” Appellant’s Statement of Additional

Auths. at 2. Neither case cited by the Rossis pronounce such an overt principle. In 

Regan we held, “We will not substitute our judgment on credibility of witnesses or the 

weight of conflicting evidence.” 130 Wn. App. at 49. In C.J., we addressed the trial 

court’s “findings of fact regarding [the victim]’s competency at the time he made the 

hearsay statements . . . not support[ing] its legal conclusion that [the victim]’s hearsay 

statement should be admitted.” 108 Wn. App. at 798.

Moreover, this case is unlike Weyerhaeuser which, as the court in Citizens noted, 

was “an extreme case of noncompliance.” 126 Wn.2d at 369. Here, the hearing 

 

4 130 Wn. App. 39, 121 P.3d 731 (2005).

5 108 Wn. App. 790, 798, 32 P.3d 1051 (2001), rev’d on other grounds, 148 

Wn.2d 672, 63 P.3d 765 (2003).
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examiner issued a 9-page single-spaced decision addressing all of the issues. To avoid 

having to address our deference to the hearing examiner’s judgment on credibility of 

witnesses, the Rossis present their argument as an attack on the adequacy of his findings 

and conclusions. Consequently, their argument fails. 

The hearing examiner made adequate findings of fact.

II. WHETHER THE HEARING EXAMINER ERRED IN FINDING THE PROJECT COMPLIED 

WITH THE COMPREHENSIVE PLAN

The Rossis argue that the hearing examiner’s determination that the Project 

complies with the Comprehensive Plan was an error of law. The Rossis contend the 

hearing examiner committed an error of law under RCW 36.70C.130(1)(b) when he 

failed to consider the agricultural and freight network provisions in the Comprehensive 

Plan. The Rossis further argue that the hearing examiner’s findings that the Project is 

consistent with the Comprehensive Plan’s residential policies D and F was not supported 

by substantial evidence. We disagree. The hearing examiner’s determination that the 

Project complies with the Comprehensive Plan was not error.

In reviewing a land use decision, this court stands in the same position as the 

superior court and limits its review to the record created before the hearing examiner. 

Phoenix Dev., Inc. v. City of Woodinville, 171 Wn.2d 820, 828, 256 P.3d 1150 (2011);

Pinecrest Homeowners Ass’n v. Glen A. Cloninger & Assocs., 151 Wn.2d 279, 288, 

87 P.3d 1176 (2004); RCW 36.70C.130. 
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“[The Land Use Petition Act (LUPA), chapter 36.70C RCW,] provides the 

exclusive means for judicial review of a land use decision (with the exception of those 

decisions separately subject to review by bodies such as the growth management 

hearings boards).” Phoenix Dev., 171 Wn.2d at 828 (citing Woods v. Kittitas County, 

162 Wn.2d 597, 610, 174 P.3d 25 (2007)). Under LUPA, this court may reverse the 

hearing examiner if the Rossis establish at least one of the six standards set forth in 

RCW 36.70C.130(1): 

(1) The superior court, acting without a jury, shall review the record and 

such supplemental evidence as is permitted under RCW 36.70C.120. The 

court may grant relief only if the party seeking relief has carried the burden 

of establishing that one of the standards set forth in (a) through (f) of this 

subsection has been met. The standards are:

(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 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.

At issue here are standards (b) and (c).

RCW 36.70C.130(1)(b) does not require the court to give complete deference, but 

rather, “‘such deference as is due.’” Ellensburg Cement Prods., Inc. v. Kittitas County, 
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179 Wn.2d 737, 753, 317 P.3d 1037 (2014)). Whether the hearing examiner interpreted 

the law erroneously is a question of law this court reviews de novo. Lord v. Pierce 

County, 166 Wn. App. 812, 818, 271 P.3d 944 (2012). 

When reviewing a challenge to the sufficiency of the evidence under subsection 

(c), “we view facts and inferences in a light most favorable to the party that prevailed in 

the highest forum exercising fact-finding authority,” in this case, Bergren. Phoenix Dev., 

171 Wn.2d at 828-29. “Under the substantial evidence standard, there must be a 

sufficient quantum of evidence in the record to persuade a reasonable person that the 

declared premise is true.” Id. at 829 (citing Wenatchee Sportsmen Ass’n v. Chelan 

County, 141 Wn.2d 169, 176, 4 P.3d 123 (2000)). 

This court may affirm or reverse the land use decision currently under review or 

remand it for modification or further proceedings. RCW 36.70C.140. If the decision is 

remanded for modification or further proceedings, the court may make such an order as it 

finds necessary to preserve the interests of the parties pending further proceedings or 

action by the local jurisdiction. Id. at 829.

“To the extent a comprehensive plan prohibits a use that the zoning code permits, 

the use is permitted.” Cingular Wireless, LLC v. Thurston County, 131 Wn. App. 756, 

770, 129 P.3d 300 (2006). However, where the zoning code itself expressly requires a 

proposed use comply with the comprehensive plan, the proposed use must satisfy both 

the zoning code and the comprehensive plan. Id. Under CCC 11.22.050(1), planned 
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developments (PD), and therefore the Project, must be consistent with the 

Comprehensive Plan. CCC 11.22.050(1) (“The PD designation confirms the PD is 

consistent with the purpose of and provisions for planned developments and the 

comprehensive plan.”); see also CCC 11.22.010(1) (“The purpose of this chapter is to 

provide development regulations for the Peshastin community that are consistent with, 

and implement, the Peshastin sub-area comprehensive plan.”). 

A. WHETHER THE HEARING EXAMINER FAILED TO CONSIDER THE 

AGRICULTURAL AND FREIGHT NETWORK PROVISIONS OF THE 

COMPREHENSIVE PLAN6

The Rossis argue that the hearing examiner committed an error of law under 

RCW 36.70C.130(1)(b) when he allegedly failed to consider critical agricultural and 

freight network policies in finding that the Project complied with the Comprehensive 

Plan. Though the Rossis make the argument that the hearing examiner erroneously 

interpreted the law, they do not explain what law the hearing examiner interpreted, let 

alone how it was erroneous under RCW 36.70C.130(1)(b) (“The land use decision is an 

erroneous interpretation of the law, after allowing for such deference as is due the 

 

6

In their opening brief, the Rossis do not specifically cite to the RCW 

36.70C.130(1) standard they argue applies. Subsection (d) seemed like the most logical 

standard based on the Rossis’ argument; however, in their reply the Rossis specifically 

state they are contending the “examiner committed an error of law under RCW 

36.70C.130(1)(b).” Reply Br. of Appellants at 16. RCW 36.70C.130(1)(b) is not 

applicable because the Rossis do not point to any interpretation of law the hearing 

examiner made. 
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construction of a law by a local jurisdiction with expertise.”). In fact, the Rossis fail to 

point to any interpretation of law that the hearing examiner made regarding this issue. 

Thus, the Rossis’ argument fails. 

Under CCC 11.22.050(1), the Project must be consistent with the Comprehensive 

Plan. As the Rossis correctly note in their reply, none of the parties dispute this

requirement. Reply Br. of Appellants at 17. The Rossis allege the hearing examiner 

failed to consider certain parts of the Comprehensive Plan in finding that the Project 

complied with it. Bergren responds that the Project is consistent with numerous 

statements and goals outlined in the Comprehensive Plan. The County points out that 

many of the Comprehensive Plan’s goals and policies conflict with one another since the 

Comprehensive Plan encourages agriculture while also emphasizing expanding housing 

in Peshastin’s UGA. 

Absent from the Rossis’ argument is any reference to what law the hearing 

examiner interpreted erroneously. Indeed, the hearing examiner did not interpret any law 

when he found that the Project complied with the Comprehensive Plan, he simply applied 

the law to the facts. Thus, the Rossis could potentially challenge the hearing examiner’s 

determination under subsection (d) of RCW 36.70C.130(1), but they specifically cite to 

subsection (b). Because the Rossis cannot show the hearing examiner erroneously 

interpreted any law when he found that the Project complied with the Comprehensive 

Plan, their argument fails. See also State v. Stubbs, 144 Wn. App. 644, 652, 184 P.3d 660 
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(2008) (“Passing treatment of an issue or lack of reasoned argument is insufficient to 

allow for our meaningful review.” (Emphasis added.)), rev’d on other grounds by

170 Wn.2d 117, 240 P.3d 143 (2010).

B. WHETHER THE HEARING EXAMINER’S DETERMINATION THAT THE 

PROJECT COMPLIED WITH THE COMPREHENSIVE PLAN IS SUPPORTED 

BY SUBSTANTIAL EVIDENCE 

The Rossis argue that the hearing examiner’s finding that the Project complies 

with the Comprehensive Plan’s residential policies D and F is not supported by 

substantial evidence under RCW 36.70C.130(1)(c). We disagree. 

1. POLICY D

The Rossis contend the finding that the Project complies with residential policy D 

is not supported by substantial evidence because the Project is not compatible with the 

adjacent residential development. The Rossis argue that the adjacent properties are large 

orchards with single homes on significant acreage while the Project would have a much 

higher allowed density. The County responds that there is only so much land in Peshastin 

and residential areas frequently abut agricultural areas. Further, the County contends that 

because the Project is located in the Peshastin UGA, the Chelan County Board of 

Commissioners has already determined that the site of the Project is suitable for 

development. We agree with the County. The hearing examiner’s finding that the 

Project complies with Comprehensive Plan policy D is supported by substantial evidence. 
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The Comprehensive Plan’s residential policy D reads: “POLICY D: Determine 

the density of development which is compatible with adjacent residential development.” 

CP at 757; Br. of Resp’t Chelan County App. A-026. The rationale for this policy is: 

Urban densities should be determined by services available, the road 

network, and adjacent land uses. Where a full range of urban utilities are 

available and adjacent land uses dictate a need for buffering. Adjacent to 

existing, well-established neighborhoods, lower densities should be 

reflected, such as four units per acre. Several different zoning 

classifications should be developed to allow for properly adjusted densities 

and mixed-use development.

CP at 757; Br. of Resp’t Chelan County App. A-026.

As the County correctly notes, Washington law encourages growth in 

UGAs. RCW 36.70A.110(1) states, “Each county that is required or chooses to 

plan under RCW 36.70A.040 shall designate an urban growth area or areas within 

which urban growth shall be encouraged and outside of which growth can occur 

only if it is not urban in nature.” (Emphasis added.) The Rossis do not dispute 

that the Project lies within Peshastin’s UGA. Because the Project is located in the 

Peshastin UGA, it has already been determined that the site of the Project is 

appropriate for urban growth and is compatible with adjacent land uses. 

The hearing examiner’s finding that the Project complies with the Comprehensive 

Plan’s residential policy D, and therefore, the Comprehensive Plan, is supported by 

substantial evidence. 
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2. POLICY F 

The Rossis contend the hearing examiner’s finding that the Project complies with 

the Comprehensive Plan’s residential policy F is not supported by substantial evidence. 

The Comprehensive Plan’s residential policy F reads: “POLICY F: Encourage 

residential growth to occur in areas where public utilities exist or may be provided at 

reasonable costs.” CP at 757; Br. of Resp’t Chelan County App. A-027. The rationale 

for this policy is “[p]romoting developments in or close to areas with existing public 

utilities save not only possible future public expenditures, but should lower the initial cost 

of development, thereby providing more reasonably priced housing.” CP at 757; Br. of 

Resp’t Chelan County App. A-027. 

Bergren points out that the Chelan County PUD No. 1 commented that, though 

improvements would be needed to the existing wastewater systems in order to 

accommodate development, services could be made available. The Peshastin Water 

District also provided a certificate of water availability for the Project. The hearing 

examiner noted this in its findings of fact. The Rossis argue that currently there are not 

adequate sewer services to serve the Project. Although correct, the Chelan County PUD 

No. 1 noted that adequate sewer services could be made available. Policy F “encourage[s]

residential growth to occur in areas where public utilities exist or may be provided.” CP 

at 757 (emphasis added). The substantial evidence in the record shows that utilities could 

be provided to the project. 
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The hearing examiner’s finding that the Project complies with the Comprehensive 

Plan’s residential policy F, and therefore, the Comprehensive Plan, is supported by 

substantial evidence. 

III. WHETHER THE HEARING EXAMINER ERRED IN FINDING THAT THE PROJECT 

COMPLIED WITH VARIOUS PROVISIONS OF THE CHELAN COUNTY CODE

The Rossis argue that the hearing examiner’s decision to conditionally approve the 

Project was error because the Project does not comply with various CCC provisions, 

namely CCC 14.98.525, 11.22.050(6), 10.30.010, 11.22.040, 11.22.050(3)(C), and 

12.04.020(1)(E). The Rossis contend the hearing examiner’s decision was erroneous 

under RCW 36.70C.130(1)(b), (c) and (d). We disagree. 

RCW 36.70C.130(1)(b) does not require the reviewing court to give complete 

deference to a local jurisdiction with expertise, but rather, “‘such deference as is due.’” 

Ellensburg Cement Prods, 179 Wn.2d at 753. Under RCW 36.70C.130(1)(d), we review 

whether the land use decision is a clearly erroneous application of the law to the facts de 

novo. Lord, 166 Wn. App. at 818. A finding is clearly erroneous when, although there is 

evidence to support it, the reviewing court is left with the “definite and firm conviction 

that a mistake has been committed.” Phoenix Dev., 171 Wn.2d at 829.

When reviewing a challenge to the sufficiency of the evidence under RCW 

36.70C.130(1)(c), “[w]e view facts and inferences in a light most favorable to the party 

that prevailed in the highest forum exercising fact-finding authority,” in this case, 
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Bergren and the County. Phoenix Dev., 171 Wn.2d at 828-29. “Under the substantial 

evidence standard, there must be a sufficient quantum of evidence in the record to 

persuade a reasonable person that the declared premise is true.” Id. at 829 (citing 

Wenatchee Sportsmen Ass’n, 141 Wn.2d at 176). 

A. DENSITY CALCULATION (CCC 14.98.525)

The Rossis contend the hearing examiner incorrectly interpreted the density code 

section and misapplied the law to facts in finding that the Project’s density was 3.18 

dwelling units per acre. RCW 36.70C.130(1)(b) (“The land use decision is an erroneous 

interpretation of the law, after allowing for such deference as is due the construction of a 

law by a local jurisdiction with expertise.”), (d) (“The land use decision is a clearly 

erroneous application of the law to the facts.”). The County points out that the Applicant 

was not required to state how many dwelling units would be on each lot at this stage and 

it was therefore reasonable for him to calculate density by dividing the number acres by 

the number of lots. We agree with the County. 

The Comprehensive Plan states the density for R-1 is 4 units per acre. On the 

other hand, the zoning code states that the maximum density for R-1 is 5 dwelling units 

per acre for single-family residences and 10 units per acre for duplexes. CCC 

11.22.020(1)(A). Because the CCC requires that PDs, such as the Project, comply with 

the Comprehensive Plan, the applicable density is 4 units per acre. Cingular Wireless, 

131 Wn. App. at 770; CCC 11.22.050(1); see also CCC 11.22.010(1) (“The purpose of 
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this chapter is to provide development regulations for the Peshastin community that are 

consistent with, and implement, the Peshastin sub-area comprehensive plan.”).

The application for the Project stated it consisted of a 42.1-acre property divided 

into 134 lots. The application also stated that the planned development would include 

ADUs, duplexes, single family residences, and zero lot line townhomes. The hearing 

examiner found that the Project’s density is 3.18 dwelling units per acre. The hearing 

examiner reached this finding by dividing 134 (the number of lots in the Project) by 42.1 

(the number of acres in the Project). 

The Rossis argue that, because the Project includes duplexes and ADUs, the 

correct density calculation is actually double what the hearing examiner found. The CCC 

defines density as the “number of dwelling units per unit of land.” CCC 14.98.525. A 

“dwelling unit” is “one or more rooms designed, occupied or intended for occupancy as a 

separate living quarters with sleeping, sanitary facilities and kitchen facilities provided 

within the dwelling unit for the exclusive use of a single household.” CCC 14.98.625. 

An ADU is one dwelling unit while a duplex is two dwelling units. CCC 14.98.050; 

14.98.605. One ADU is permitted per lot with a single-family home. CCC 11.88.200. 

The Rossis correctly point out that if each lot contained either a single-family 

home with an ADU, or a duplex, there would actually be 268 dwelling units on 42.1 acres 

of land for a density calculation of 6.38 units per acre. This is more than the 

Comprehensive Plan allows for an R-1 zoned planned development. 
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However, the County responds that there is no requirement that the Applicant state 

what use (single-family residence, ADU, duplex, etc.) will be on each individual lot at 

this stage. Instead, the hearing examiner made the reasonable assumption there would be 

at least one dwelling unit per lot and concluded this complied with CCC 11.22.050. The 

County further argues that when the time comes for final permitting for dwellings, the 

density limits could not be ignored and the County can and should deny the applications 

if density limits were to be exceeded. We agree with the County. 

The Rossis speculate that each and every lot will have two dwelling units but this 

information was not before the hearing examiner. All the hearing examiner knew was 

that there were 134 lots on 42.1 acres. Thus, it was reasonable for him to calculate 

density by dividing 134 by 42.1. Further, the hearing examiner’s density calculation of 

3.18 dwelling units per acre was well within the Comprehensive Plan’s allowed density 

of four dwelling units per acre for R-1. When the time comes for final permitting for 

dwellings, the County can and should deny the applications if the Comprehensive Plan’s 

density limit is exceeded.

The hearing examiner’s decision was not a clearly erroneous application of the law 

to the facts. RCW 36.70C.130(1)(d). Further, it was not an erroneous interpretation of 

the law when the hearing examiner interpreted CCC 14.98.525 as being calculated by 

dividing the number of lots by the number of acres in the Project because the type and 
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number of dwelling units per lot was not known to him at this stage. RCW 

36.70C.130(1)(b). 

B. INFORMATION ABOUT THE PROJECT’S LAYOUT AND DESIGN 

(CCC 11.22.050(6))

The Rossis argue that the hearing examiner committed an error of law, presumably

under RCW 36.70C.130(1)(b),7in concluding that CCC 11.22.050(6) did not apply to the 

Project and that the information outlined therein was not required to be included in the 

application. The Rossis contend the CCC requires that a subdivision application

accompany a single-family planned development application and that certain information 

be included in that application. Bergren responds that a subdivision application,

including the elements listed in CCC 11.22.050(6)(A)-(G), is not required until Bergren 

applies for final plat approval for the Project. We agree with Bergren. 

CCC 11.22.050(6) states: 

(6) Binding Site Plan or Subdivision. A binding site plan is required for all 

multifamily [Planned Development]s or a subdivision is required for singlefamily lot [Planned Development]s and shall include the following:

(A) All information required on a preliminary plat;

(B) The location of all existing and proposed structures;

(C) A detailed landscape plan indicating the location of existing 

vegetation to be retained, location of vegetation landscaping structures to 

be installed, the type of vegetation by common name and/or taxonomic 

designation, the installed and mature height of all vegetation;

 

7 The Rossis again do not cite the exact LUPA standard of review they contend 

applies. 
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(D) Schematic plans and elevations of proposed building(s) with 

samples of all exterior finish material and colors, the type and location of 

all exterior lighting, signs and accessory structures;

(E) Utility, street and stormwater drainage plans that indicate the 

facilities, lay-out and capacities necessary to serve the entire [Planned 

Development];

(F) Inscriptions or attachments setting forth the limitations and 

conditions of development; and

(G) The provisions ensuring the development will be in conformance 

with the site plan.

The hearing examiner listed the requirements of CCC 11.22.050(6)(A)-(G) and then 

found:

[The] proposed Planned Development meets the zoning minimum of 

5 dwelling units per acre. The proposal contains a 134-lot residential 

development on 42.1 acres (3.18 dwelling units per acre) as shown on the 

updated site plan. The applicant is not pursuing any density increases, 

therefore none these items need to be met.

CP at 764 (Finding of Fact (FF) 43.4.7.6.9) (emphasis added). 

Preliminarily, it is unclear why the fact that Bergren is not seeking a density 

increase impacts the need to include the items listed in CCC 11.22.050(6)(A)-(G) in 

Bergren’s Project application. Indeed, Bergren points out its Application was for both a 

major subdivision and a planned development, but Bergren does not dispute it did not 

include the information required in CCC 11.22.050(6)(A)-(G). 

However, the Applicant stated that a subdivision would be pursued during final 

platting for each phase of the Project. The Rossis do not cite any authority requiring a 

subdivision be included with an application for a planned development. Indeed, 
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CCC 11.22.050(6) does not require a subdivision be included with a planned 

development application. 

Given these facts, the Rossis have not demonstrated that the hearing examiner 

erroneously interpreted the law under RCW 36.70C.130(1)(b) when he found that 

Bergren need not include the items listed in CCC 11.22.050(6)(A)-(G). When Bergren 

seeks final plat approval for each phase, a subdivision will be required. 

C. REVIEW BY THE AGRICULTURAL REVIEW COMMITTEE (CCC 10.30.010)

The Rossis argue that the hearing examiner committed an error of law (under

RCW 36.70C.130(1)(b)) in his decision on appeal of SEPA determination when he found 

that review of the Application by the agricultural review committee (ARC) was not 

required. Bergren and the County respond that the ARC does not exist and so review 

of the application by it was impossible. The Rossis contend the hearing examiner’s 

finding that the ARC does not exist is not supported by substantial evidence in the record. 

RCW 36.70C.130(1)(c). We agree with Bergren and the County.

CCC 10.30.010 states: “The primary goal of the ARC would be to review 

proposed development, identify potential affects [sic] on surrounding agriculture 

(impacts), and make recommendations for mitigation of impacts.” (Emphasis added.) 

The hearing examiner found in his decision on appeal of SEPA determination that 

“Chelan County has not fully implemented the Agricultural Review Committee.” CP at 

1628. 
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As a threshold issue, the Rossis argue that the hearing examiner’s finding that the 

ARC is not fully implemented is not supported by substantial evidence. The Rossis are 

incorrect. Mr. Beardslee testified during the SEPA appeal hearing that Chelan County 

did not have an ARC, and he had never seen one convened. The Rossis did not point to 

any testimony in the record disputing the fact that the ARC did not exist. Thus, the 

hearing examiner’s finding is supported by substantial evidence. 

The Rossi’s primary argument is that the hearing examiner erroneously interpreted 

the law when he did not require review of the application by the ARC. Bergren and the 

County concede the application was not reviewed by the ARC but argue that it would 

have been impossible for the ARC to review the application since the committee did not 

exist. It would be futile to require Bergren’s application be reviewed by the ARC when 

none existed. If we were to require the nonexistent ARC to review Bergren’s application, 

or any other application, they could never be approved. Thus, the hearing examiner did 

not erroneously interpret the law or otherwise err by declining to require review of 

Bergren’s application by the ARC.

D. 100-FOOT SETBACK (CCC 11.22.040)

The Rossis argue that the hearing examiner erroneously interpreted the law under 

RCW 36.70C.130(1)(b) when he determined that the 100-foot setback in CCC 11.22.040 

was not required. Bergren responds that the hearing examiner did not err because the 
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100-foot setback does not apply to existing agricultural activities, but instead only applies 

to properties zoned commercial agriculture (AC). We agree with Bergren. 

CCC 11.22.040(1) n.6 states that “[s]etbacks may be modified consistent with 

Section 11.88.040. Structures located adjacent to existing commercial agricultural 

activities will be required to have a one-hundred-foot setback, except when a waiver is 

recorded in accordance with Chapter 11.30.” The hearing examiner, in his findings and 

conclusions, discussed CCC 11.22.040 and its setback requirements but did not discuss 

nor require a 100-foot setback. 

Bergren points out that CCC 11.88.040(8), referenced in CCC 11.22.040(1) n.6, 

states, “No dwelling unit adjacent to the commercial agricultural zoning district shall be 

placed within one hundred feet of a property line, including those across a right-of-way.” 

(Emphasis added.) Additionally, chapter 11.30, also referenced in CCC 11.22.040(1) n.6, 

is Chelan County’s AC zoning chapter. Finally, CCC 11.22.040(1) n.6 states that 

structures located adjacent to “existing commercial agricultural activities” are required to 

have a 100-foot setback. (Emphasis added.) The code is clear⎯the 100-foot setback 

referenced in CCC 11.88.040(8) is only applicable to properties zoned AC. Because 

none of the properties adjacent to the Project are zoned AC, a 100-foot setback was not 

required and the hearing examiner did not erroneously interpret the law.

The Rossis argue that if we were to read the code as only requiring a 100-foot 

setback for properties zoned AC, CCC 11.88.040(8) would be a nullity because chapter 
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11.22 applies only to the Peshastin UGA and there are no AC zoning districts in the 

UGA. The Rossis’ argument is unpersuasive. Though there are no AC zoning districts 

within the Peshastin UGA, a portion of the Peshastin UGA borders land zoned AC. 

Thus, CCC 11.88.040(8) is not a nullity. If the land in the Peshatin UGA that borders 

land zoned AC was developed, it would potentially require a 100-foot setback. 

E. OPEN SPACE REQUIREMENT (CCC 11.22.050(3)(C))

The Rossis argue that the hearing examiner’s decision was both not supported by 

substantial evidence and was clearly erroneous when he found that the open space criteria 

applicable to the Project were met. RCW 36.70C.130(1)(c), (d).8 Bergren responds that 

the hearing examiner’s determination that the open space requirements applicable to the 

Project were met was not error. We agree with Bergren. 

CCC 11.22.050(3)(C) states: 

The overall area within a PD that is required to be devoted to critical areas, 

on-site recreation and/or open space shall be no less than six hundred 

square feet per residential unit, and in no case shall there be less than ten 

percent of the overall development devoted to these areas.

 

8 The Rossis also argue that the hearing examiner erroneously interpreted the code 

but, again, they do not point to any code interpretation that the hearing examiner made. 

Instead, the Rossis seem to only argue that the hearing examiner’s finding was erroneous 

and not supported by substantial evidence. 
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Further, the code requires that at least 10,000 square feet or 60 percent of the open 

space, whichever is greater, be concentrated in contiguous usable areas (CCC 

11.22.050(3)(B)(i)), that a minimum of 60 percent of the open space must be 

concentrated or connected into large usable areas (CCC 11.22.050(14)(C)), and that 

the open space be reasonably level with no slopes greater than 15 percent. (CCC 

11.22.050(14)(E)). 

The hearing examiner found that the Project exceeded the open space design 

requirements of the CCC. The hearing examiner also conditioned approval upon the 

Applicant submitting “[a] final landscaping plan demonstrating conformance with OnSite Recreation and/or Open Space Design Requirements” during the final platting for 

each phase of the planned development. CP at 775. 

The Rossis argue that the Project does not meet the open space requirements of 

the CCC. Namely, they argue that the open space is broken up into isolated tracts, that 

the largest continuous tract is only 42.5 percent of the total open space, and that the 

slopes in some areas far exceed 15 percent. Thus, they argue that the hearing examiner’s 

finding that the Project meets the open space requirements is not supported by substantial 

evidence and was an erroneous application of the law to the facts. 
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Bergren correctly points out that the Project complies with the code’s open space 

requirements. The Project set aside 6.1 acres9 of open space, which is more than 10 

percent of the total 42.1-acre property. Further, County staff testified that the open 

space was continuous because there are trail connections that the code expressly allows. 

CCC 11.22.050(3)(B)(i) (“The on-site recreation may include a combination of natural 

areas, parks, landscaped areas, trails, and/or visual corridors; provided, that a minimum 

of ten thousand square feet or sixty percent of the on-site recreation, whichever is greater, 

is contiguous usable space.” (Emphasis added.)); CCC 11.22.050(14)(C) (“A minimum 

of sixty percent of the on-site recreation or open space shall be concentrated and/or 

connected into large usable areas.” (Emphasis added.)). Because the open space is 

connected via trail systems, CCC 11.22.050(14)(C) and CCC 11.22.050(3)(B)(i) are 

satisfied.

Finally, as to CCC 11.22.050(14)(C) and (E), Bergren points out that the 

Conditioned Approval requires these code sections be complied with and the hearing 

examiner explicitly referenced the code language in its findings. Though the slopes may 

 

9 Bergren and the Rossis repeatedly state the Project set aside 4.3 acres of open 

space. However, the findings reflect that the Applicant set aside 6.1 acres of open space. 

CP at 767 (FF 43.4.7.14.6). FF 43.4.7.14.6 also states that the property is 42.9 acres 

instead of 42.1. Regardless, 4.3 acres of open space would be more than 10 percent of 

the property even if the property is actually 42.9 acres, and 6.1 acres of open space is well 

over the 10 percent requirement. 
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be greater than 15 percent now, they may be graded and leveled later and the hearing 

examiner made this a condition of approval. 

Thus, the hearing examiner’s finding that the Project complies with the code’s 

open space requirements is supported by substantial evidence and the hearing examiner’s 

decision was not clearly erroneous. 

F. APPROPRIATE WATER, SEWER, AND OTHER UTILITIES FOR PROJECT 

(CCC 12.04.020(1)(E))

The Rossis argue that the hearing examiner’s finding that the Project complies 

with CCC 12.04.020(1)(E) is not supported by substantial evidence and is a 

misapplication of the law to the facts. RCW 36.70C.130(1)(c), (d). As a threshold 

matter, this argument is raised for the first time on reply and we may decline to address it. 

In re Marriage of Bernard, 165 Wn.2d 895, 908, 204 P.3d 907 (2009). Nevertheless, in 

exercising our discretion, the issue is addressed below.

CCC 12.04.020(1)(E) states:

Each proposed land division shall be reviewed to ensure that: 

. . . . 

. . . Appropriate water, sewer and other utility provider(s) can approve 

potable water, sewer system, and other facilities necessary for each lot 

created by the division of land except where the open space tract, 

agricultural tract, conservation easements, or other non-buildable tracts are 

exempt from this requirement when noted on the plat that this ‘tract(s) may 

not be suitable for development.’
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The hearing examiner found that “[a]s submitted, the proposed major subdivision is 

consistent with the provisions of [CCC 12.04.020.]” CP at 770 (FF 45). 

As previously noted, Chelan County PUD No. 1 commented that, though 

improvements would be needed to the existing wastewater systems in order to 

accommodate development, services could be made available. The Peshastin Water 

District also provided a certificate of water availability for the Project. The hearing

examiner noted this in its findings of fact. The hearing examiner also conditioned 

approval on adequate utilities being provided to the Project. CP at 756 (“The applicant 

will be responsible for improving the local water and wastewater infrastructure as a 

condition of approval.”). The Rossis argue that currently there are not adequate utilities 

to serve the Project. Although this may be accurate, the code does not require that 

utilities be presently available. It only requires that utility providers be able to approve 

the facilities necessary for each lot. Chelan County PUD No. 1 and the Peshastin Water 

District stated that they could and the hearing examiner required that the Applicant 

improve utilities as a condition of approval. 

Thus, the hearing examiner’s finding that the Project is consistent with CCC 

12.04.020 is supported by substantial evidence and was not a misapplication of the law to 

the facts.
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IV. WHETHER THE HEARING EXAMINER’S DECISION UPHOLDING THE MDNS

WAS ERROR

The Rossis argue that the hearing examiner’s decision upholding the MDNS 

violates SEPA for a multitude of reasons. The Rossis contend the hearing examiner 

incorrectly found that the County had adequate information to make a threshold 

determination because the Project’s effect on stormwater, erodible soils, and 

contamination result in environmental hazards that have not been analyzed. They also 

argue that the application of Ecology’s Model Remedy to remediate contamination 

results in significant health risks, that land use conflicts between residential and 

agricultural uses were not addressed, that traffic impacts were not addressed, and that 

impacts to irrigation were not considered. The Rossis further posit that because 

significant impacts result from the Project, an EIS should have been required. 

Bergren and the County respond that the County considered substantial 

information that was sufficient to evaluate the Project’s environmental impact and to 

issue a threshold determination. They contend any environmental impacts of the Project 

were adequately addressed and mitigated by the MDNS. We agree with Bergren and the 

County. 

SEPA is our legislature’s pronouncement of Washington’s environmental policy. 

Stempel v. Dep’t of Water Res., 82 Wn.2d 109, 117, 508 P.2d 166 (1973). SEPA 

recognizes “the necessary harmony between humans and the environment in order to 
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prevent and eliminate damage to the environment and biosphere, as well as to 

promote the welfare of humans and the understanding of our ecological systems.” Id. 

SEPA requires that environmental values and amenities are given appropriate 

consideration, along with economic and technical considerations, in decision making. 

RCW 43.21C.030(2)(c). Thus, SEPA requires that an EIS be prepared for “major actions 

significantly affecting the quality of the environment.” Id. Our Supreme Court has not 

defined the term “significantly affecting,” instead stating that “the procedural 

requirements of SEPA, which are merely designed to provide full environmental 

information, should be invoked whenever more than a moderate effect on the quality of 

the environment is a reasonable probability.” Norway Hill Preserv. & Prot. Ass’n v. King 

County Council, 87 Wn.2d 267, 278, 552 P.2d 674 (1976). 

SEPA requires evaluation of a proposal’s environmental impact by examining two 

relevant factors: “(1) the extent to which the action will cause adverse environmental 

effects in excess of those created by existing uses in the area, and (2) the absolute 

quantitative adverse environmental effects of the action itself, including the cumulative 

harm that results from its contribution to existing adverse conditions or uses in the 

affected area.” Id. at 277.

Before a local government processes a permit application for a private land use 

project, the agency conducts a threshold process in order to determine whether an action 

qualifies as a “major action[ ] significantly affecting the quality of the environment.” 
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RCW 43.21C.030(2)(c). “In order to facilitate the ‘threshold determination,’ the 

applicant must prepare an environmental checklist, which must provide information 

reasonably sufficient to evaluate the environmental impact of the proposal.” Anderson v. 

Pierce County, 86 Wn. App. 290, 301, 936 P.2d 432 (1997) (citing WAC 197-11-315 to 

-335). If the environmental checklist does not contain enough information to make a 

threshold determination, the applicant may be required to submit additional information. 

WAC 197-11-335(1). The agency must consider mitigation measures that the applicant 

will implement and any such measures required by regulations, comprehensive plans, or 

other environmental laws. WAC 197-11-330(1)(c). 

Following the threshold phase, the agency issues one of three determinations: 

a determination of nonsignificance, an MDNS, or a determination of significance 

(DS). WAC 197-11-340 to -350. An EIS is mandatory following issuance of a DS. 

RCW 43.21C.030(2)(c); WAC 197-11-440(5). Under the MDNS process, an applicant 

can avoid EIS preparation by clarifying, changing, or conditioning the project to mitigate 

its significant adverse environmental impacts. WAC 197-11-350(3). But, if, even with 

mitigation measures, the project continues to have significant environmental impacts, an 

EIS must be prepared. WAC 197-11-350(2). 

“A threshold determination that an EIS is not required is reviewed under the 

‘clearly erroneous’ standard.” Chuckanut Conservancy v. Dep’t of Nat. Res., 

156 Wn. App. 274, 286, 232 P.3d 1154 (2010) (quoting Norway Hill, 87 Wn.2d at 273); 
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RCW 36.70C.130(1)(d). This court will overturn an MDNS only when “the reviewing 

court on the entire evidence is left with the definite and firm conviction that a mistake has 

been committed.” Norway Hill, 87 Wn.2d at 274. “The scope of review is broad and the 

search for significant environmental impacts must be considered in light of the public 

policy of SEPA.” Chuckanut Conservancy, 156 Wn. App. at 286 (citing Sisley v. San 

Juan County, 89 Wn.2d 78, 84, 569 P.2d 712 (1977)). 

The agency’s threshold determination is afforded deference but the agency must 

make a showing that environmental factors were considered in a manner amounting to 

a prima facie showing of compliance with the procedural requirements of SEPA. 

RCW 43.21C.090; Chuckanut Conservancy, 156 Wn. App. at 286-87. An agency’s 

decision to issue an MDNS and not to require an EIS is afforded substantial weight. 

Moss v. City of Bellingham, 109 Wn. App. 6, 13-14, 31 P.3d 703 (2001). 

The Rossis argue that the hearing examiner’s decision affirming the MDNS 

violates SEPA. We disagree. 

A. STORMWATER, ERODIBLE SOILS, AND SOIL CONTAMINATION

The Rossis argue that the Project’s stormwater, erodible soils, soil contamination, 

and resulting health risks have not been adequately analyzed. Bergren responds that the 

County used Ecology’s Model Remedy and additional mitigation conditions to overcome 

concerns about lead arsenic contamination and that the County had sufficient information 

on this point to make a threshold determination. We agree with Bergren. 
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The County had adequate information related to the environmental hazards posed 

by stormwater runoff, erodible soils, and soil contamination to make a threshold 

determination and issue an MDNS. As to soil contamination, the County considered the 

comment letter from Ecology and implemented Ecology’s recommendations regarding 

soil contamination. 

As to stormwater, the MDNS stated that “[p]ermit coverage and erosion control 

measures must be in place prior to any clearing, grading, or construction.” CP at 1387. 

This was consistent with another comment letter from Ecology stating that it 

recommended a national pollution discharge elimination system construction stormwater 

general permit that requires a stormwater pollution prevention plan be prepared and 

implemented for all construction sites. Finally, as to erodible soils, the MDNS stated that 

“[d]ust control shall be maintained during any earth disturbing activities during 

construction and installation.” CP at 1387. 

The Rossis also seem to argue that the hearing examiner’s conclusion on appeal of 

the SEPA determination⎯that “the threshold determination in this matter is based upon 

sufficient information contained within the SEPA checklist, or later developed by the 

responsible agency, and it fully and fairly evaluates all known or probable environmental 

impacts”⎯is not supported by substantial evidence. CP at 1629. We disagree. 

The Rossis’ argument is primarily that their expert, Ms. Saltanovitz, disagreed 

with the MDNS’s conditions and argued they were inadequate to properly mitigate the 
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Project’s impacts. She testified that there were many issues with the Project’s plan to 

contain and control stormwater. The Rossis point again to Ms. Saltanovitz’s testimony 

regarding stormwater and argue that the hearing examiner erred when it found her 

testimony “not . . . convincing.” CP at 1627. Again, the hearing examiner made a 

credibility determination that we will not disturb on appeal. 

As to the erodible soils and soil contamination, the Rossis again point to Ms. 

Saltanovitz’s testimony on these points. Ms. Saltanovitz testified she did not see 

disclosure of erosive soils and their potential impacts in the environmental checklist or 

the County’s SEPA documents. However, the MDNS Conditioned Approval on a toxic 

cleanup plan approved by Ecology and the Project meeting the standards of the Model 

Toxics Control Act, chapters 70A.305, 82.21 RCW, prior to occupancy. This comports 

with Ecology’s recommendation that “Chelan County implement [cleanup of the Project 

prior to occupancy] through Conditions of Approval.” CP at 1586. 

In issuing the MDNS, the County considered and implemented Ecology’s 

comments regarding soil contamination and cleanup. The SEPA responsible official had 

sufficient facts and information, provided primarily by Ecology, to assess the impacts of 

stormwater, and erodible and contaminated soils and issue an MDNS. Further, the 

hearing examiner’s conclusion that there was sufficient information to make a threshold 

determination is supported by substantial evidence. 
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B. APPLICATION OF ECOLOGY’S MODEL REMEDY TO REMEDIATE 

CONTAMINATION

The Rossis argue that the application of Ecology’s Model Remedy for orchard 

cleanup was not sufficient to remediate the contamination of the site of the Project. We 

disagree. 

The Rossis simply disagree that the Model Remedy is the proper method of 

cleanup. They take issue with the way the Model Remedy seeks to clean up the Project 

site. The Rossis contend that cleanup will be piecemeal and that, therefore, the first 

purchasers of homes will have the worst health impacts as dirt and dust is disturbed to 

build new homes in subsequent phases. They also contend the Model Remedy and the 

model remedy developer agreement do indeed push cleanup responsibility on to 

homeowners even though the MDNS states that they do not. 

The Rossis’ first argument, that the Model Remedy calls for piecemeal cleanup of 

the site, does not appear to be supported by the record. The MDNS states that “Ecology 

requires cleanup of this project prior to occupancy. Cleanup shall meet the requirements 

of Ecology’s Model Remedies for Cleanup of Former Orchard Properties in Central and 

Eastern Washington. Ecology will provide technical guidance to the applicant and 

provide oversight to confirm that cleanup is completed.” CP at 1387 (emphasis added). 

The plain language of the MDNS requires that the entire site be cleaned up prior to 

occupancy. The record lacks evidence of a piecemeal cleanup. 
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As to the Rossis’ argument that the MDNS has conflicting directives, on one hand 

mandating cleanup by developers and on the other hand putting the burden on home 

purchasers, their argument is unpersuasive. The record does not support the Rossis’

contention that the model remedy developer agreement pushes the burden to clean the 

site onto homebuyers or homebuilders. 

The model remedy developer agreement, which the MDNS mandates be used, 

states that “[t]he developer is responsible for ensuring that the remedy is completed 

during general site development activities and prior to final plat approval.” CP at 919. 

Further, “[f]uture homebuilders are responsible for ensuring appropriate remedy 

implementation on individual lots, prior to issuance of a certificate of occupancy for the 

residence on that lot.” CP at 919. One of the requirements of the agreement is that a 

certificate of completion be issued confirming that the lot has been properly cleaned up 

before a certificate of occupancy will be issued. Thus, the model remedy developer 

agreement requires the “Property Owner and/or their contractor/homebuilder” to record a 

“‘Residential Building Self-Certification’ form,” verifying cleanup has occurred, with the 

county auditor’s office. CP at 923. 

The model remedy developer agreement only seems to require home purchasers 

and builders to confirm cleanup has occurred by the developer, not to do the cleanup 

themselves. Thus, the Rossis’ argument on this point fails.
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The Rossis, aside from voicing their disagreement with the Model Remedy as the 

method of cleanup, do not make a persuasive argument that it was insufficient to 

remediate the contamination of the Project site. If the Model Remedy is applied and the 

Project site is properly cleaned up, as the MDNS requires it to be, environmental and 

health impacts will be properly mitigated.

C. LAND USE CONFLICTS BETWEEN RESIDENTIAL AND AGRICULTURAL USES

The Rossis argue that land use conflicts between the Planned Development and 

existing orchards exist that were not mitigated or buffered. 

WAC 197-11-960(8)(a) requires that the environmental checklist ask: “What is the 

current use of the site and adjacent properties? Will the proposal affect current land uses 

on nearby or adjacent properties?” The Rossis argue that agricultural noises, smells, and 

pesticide drift from nearby orchards will impact the planned development and its 

occupants. However, the question is not: “How will the adjacent properties affect the 

proposal?” It is: “How will the proposal affect nearby properties?” 

The Rossis do not explain what adverse effect the Project will have on nearby 

orchards other than to say new residents will complain about the nearby orchard owners’ 

annoying farming practices. Yet, the orchard owners’ lawful farming practices are 

protected from nuisance liability under Washington’s right to farm statute. RCW 

7.48.305; Buchanan v. Simplot, 134 Wn.2d 673, 680, 925 P.2d 610 (1998). 

Further, the hearing examiner on appeal of the SEPA determination noted: 
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The zoning for this area, set by Chelan County Board of Commissioners, is 

Low-Density Residential in the Peshastin Urban Growth Area. At the time 

the County set this zone, the area of the new zone was adjacent to active 

orchard uses. Therefore, the Chelan County Board of Commissioners has 

already determined that the current zoning for the subject property is 

compatible with adjacent and neighboring agricultural uses.

CP at 1625. As he pointed out, the Project is located within the Peshastin UGA that was 

slated for future development. The Board of County Commissioners determined that this 

area was appropriate for urban growth when it designated it as part of the UGA. The 

Rossis’ land use compatibility grievances should have been taken up with the Board of 

County Commissioners when they were designating land in Peshastin as a part of the 

UGA and adopting the Comprehensive Plan.

There was nothing for the MDNS to address regarding land use compatibility. 

The Rossis do not explain how the Project will impact adjacent orchard owners and the 

environmental checklist question they cite to does not require consideration of adjacent 

orchard owners’ impact on the Project. Buyers of homes in the planned development 

must do so knowing they are near property being used for agricultural purposes. 

D. TRAFFIC IMPACTS

The Rossis argue that the hearing examiner erred on appeal of the SEPA 

determination when he concluded traffic impacts were adequately addressed in the 

MDNS. The Rossis contend that traffic impacts were not adequately addressed by the 

MDNS and that traffic issues still need to be mitigated. 
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The MDNS states the Applicant must construct Larson Road and Derby Canyon 

Road to meet the construction design of a rural collector road design and that intersection 

improvements are required pursuant to the revised TIS comments issued by Chelan 

County Public Works. The hearing examiner on appeal of the SEPA determination 

concluded the MDNS adequately mitigated any adverse traffic impacts. 

The Rossis argue that their expert’s testimony⎯that the TIS was inadequate⎯

should have been adopted by the hearing examiner. The Rossis again take issue with the 

hearing examiner’s finding that their expert was less convincing than Bergren’s and the 

County’s. 

In regard to the data Ms. Leingang used to form her opinions, she testified that she 

did not collect data regarding traffic counts but instead based her opinions on information 

she gathered from local residents, “employees in the area,” and a February site visit. CP 

at 225. She further testified that she did not do “any additional data collection” other 

than what was done in the TIS. CP at 224, 1062-72. But her overarching opinion was 

that the TIS contained inaccurate background conditions, the wrong peak-hour window, 

and the wrong analysis at the primary intersection. She testified that all of these items 

undermined the TIS’s stated traffic impacts of the Project. Yet, Ms. Leingang did not do 

her own data collection. The hearing examiner specifically found that the “factual study 

and opinions by traffic expert, Michael Reed [sic] were more convincing that [sic] those 

opinions issued by Appellant’s expert, Kassi Leingang.” CP at 1627.
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We accept the “factfinder’s views regarding the credibility of witnesses and the 

weight to be given reasonable but competing inferences.” City of Univ. Place, 144 

Wn.2d at 652. We will not find persuasive what the hearing examiner found 

unconvincing. The MDNS required improvements to Larson Road and Derby Canyon 

Road as well as intersection improvements pursuant to the TIS and comments issued by 

Chelan County. The required improvements adequately mitigated traffic impacts posed 

by the Project. 

E. IMPACTS TO ORCHARD IRRIGATION

The Rossis argue that the impacts to orchard irrigation water posed by the Project 

were not considered and that this was error. Bergren responds that the Rossis’ concerns 

regarding impacts to irrigation are entirely speculative. 

The Rossis argue that the failure to identify irrigation line easements on the 

Property, along with the failure to consider the impacts that new users will have on the 

water supply, was error. In its decision on the SEPA appeal, the hearing examiner stated:

Regarding the claimed environmental impacts regarding waterlines passing 

through the property, the Hearing Examiner specifically finds that there is 

no factual or opinion evidence proving, by a preponderance of the 

evidence, that the irrigation lines through the subject property will be 

eliminated or otherwise disrupt the flow of water to adjacent properties. 

The Hearing Examiner finds that these claimed impacts are clearly 

speculative. Irrigation water rights will not be impacted by the project. It’s 

important to note that the Icicle Irrigation District was informed of the 

application and chose not to comment. 

CP at 1627 (emphasis added). 
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The hearing examiner’s finding is supported by substantial evidence. When asked 

if new users of the irrigation system would impact his water supply, Nick Rossi testified 

that he did not think “it directly affects our access to our water supply.” CP at 248. 

Instead, his concerns were that people in the area would walk near or gather near his 

irrigation canal. 

The Rossis speculate as to whether construction would potentially damage 

underground irrigation lines or make it difficult to access them in the event repairs were 

needed. These claims are speculative and the Rossis offer no citations to the record or 

law to support them. 

The Rossis also argue in passing that the site plan violates the CCC because 

irrigation easements were not identified. CCC 12.12.020(1)(D) states:

Every preliminary application for a land division shall consist of the 

appropriate application form, applicable fees and the following:

(1) One copy of the preliminary map(s) which shall be legibly drawn at a 

standard engineering scale suitable to show the details necessary for 

review and shall include:

. . . .

(D) Map of all easements, their purpose and dimensions, as known.

However, the final plat is required to show all easements that benefit and burden 

the site. Further, CCC chapter 12.12 is titled “Subdivisions” and, as previously 

detailed, a subdivision is not required until final plat approval. 
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The Rossis’ arguments regarding impacts to orchard irrigation are 

speculative. The MDNS did not need to mitigate impacts to irrigation water 

because none are present. 

F. WHETHER AN EIS SHOULD HAVE BEEN REQUIRED

Finally, the Rossis argue that an EIS should have been required because there are 

significant environmental impacts resulting from the Project that are not addressed or 

mitigated. For the reasons stated above, an EIS was unnecessary. The MDNS 

appropriately mitigated any significant environmental impacts resulting from the Project.

CONCLUSION

Finding no error in the hearing examiner’s decision affirming issuance of the 

MDNS, we affirm. 

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.

Cooney, J.

WE CONCUR:

Fearing, C.J. Pennell, J.