Judicial Notice of Internet Evidence — No Judicial Notice of Website of Governmental Party Stating Fact Inconsistent With All Evidence before the Government Entity and Contrary to Its Own Findings of Fact (Website as Evidence Creator?)

Spokane Cnty. v. E. Wash. Growth Mgmt. Hearings Board, 2015 Wash. App. LEXIS 755 (Wash. Ct. App. April 9, 2015):

We address once again the compliance of Spokane County with Washington's intractable Growth Management Act (GMA), chapter 36.70A RCW, this time in the context of a comprehensive plan amendment that rezoned a parcel of land. The reviewing administrative agency, the Growth Management Hearings Board (GMHB), invalidated the amendment, and the superior court reversed. We reverse in part and affirm in part the decisions of the superior court and remand the case to the GMHB for further proceedings.

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¶70 UL.2.16 also desires that the Douglass site benefit from good access to major arterials. Douglass' property abuts two roads: Five Mile Road and Waikiki Road. Five Mile Road is not a major arterial. For the first time on appeal, Spokane County argues that Waikiki Road is a major arterial. We must limit our response to the county's argument to the record before the GMHB. Pierce County Sheriff v. Civil Serv. Comm'n for Sheriff's Emp. of Pierce County, 98 Wn.2d 690, 693-94, 658 P.2d 648 (1983). The record defeats the county's argument.

¶71 A hearing examiner addressing Douglass' Redstone application wrote that Waikiki Road is a minor principal arterial. Nevertheless, the examiner's finding is [*49]  not a direct source for this information. Also, the examiner's use of the adjective "principal" rather than "major," lessens the credibility of the finding. "Minor" and "principal" are inconsistent terms.

¶72 The Department of Building and Planning staff report identified Waikiki as a "Minor Urban Arterial." Douglass' letter to the Board of Commissioners labels Waikiki Road as minor arterial. Spokane County's own internally inconsistent finding of fact 23 designates Waikiki Road as minor arterial.

¶73 Spokane County agrees that the record before the Board of Commissioners and the GMHB only labeled Waikiki Road as a minor arterial. Spokane County claims any identification of Waikiki Road as a minor arterial is an unfortunate error and asks this court to take judicial notice of Spokane County's Arterial Road Map, available at www.spokanecounty.org/data/engineers/traffic/arterialroadmap.pdf, which identifies Waikiki as an "urban principal arterial." We deny Spokane County's request.

¶74 ER 201 permits a court to take judicial notice of "adjudicative facts ... not subject to reasonable dispute" in the sense that they are either "(1) generally known within the territorial jurisdiction of the trial court or [*50]  (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Spokane County does not isolate which ground or grounds it forwards in asking us to take judicial notice. We do not consider the classification of Waikiki Road's status to be common knowledge within Spokane County, nor does the county argue such. We also know of no decision that recognizes an Internet web page to be a source whose accuracy cannot reasonably be questioned. In In re Marriage of Meredith, 148 Wn. App. 887, 904, 201 P.3d 1056 (2009), the husband asked this court to take judicial notice of information on internet sites of immigrant rights organizations in order to support his claim of judicial bias. This court reasoned, with double negatives, that information contained on the internet sites were not from a source whose accuracy cannot reasonably be questioned.

¶75 We recognize that Spokane County asks us to take judicial notice of information on a government entity website, rather than a website of questionable origin. Nevertheless, we will not take judicial notice of information on a government website that is inconsistent with all evidence before the government entity and contrary to the entity's own findings of fact.

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