Foundation v. State
| Decision Date | 20 June 2017 |
| Docket Number | No. 47641-0-II,47641-0-II |
| Court | Washington Court of Appeals |
| Parties | OLYMPIC STEWARDSHIP FOUNDATION, J. Eugene Farr, Wayne and Peggy King, Anne Bartow, Bill Eldridge, Bud and Val Schindler, Ronald Holsman, Citizens' Alliance Property Rights Legal Fund, Mats Mats Bay Trust, Jesse A. Stewart Revocable Trust, Craig Durgan, and Hood Canal Sand & Gravel, d/b/a Thorndyke Recources, Petitioners, v. STATE of Washington ENVIRONMENTAL AND LAND USE HEARINGS OFFICE, acting THROUGH the WESTERN WASHINGTON GROWTH MANAGEMENT HEARINGS BOARD, State of Washington Department of Ecology, Jefferson County, and The Hood Canal Coalition, Respondents. |
Dennis Dean Reynolds, Dennis D. Reynolds Law Office, 200 Winslow Way W., Unit 380, Bainbridge Island, WA, 98110-4932, Paul J. Hirsch, Hirsch Law Office, P.O. Box 771, Manchester, WA, 98353-0771, Duana Theresa Kolouskova, Vicki E. Orrico, Johns Monroe Mitsunaga Kolouskova, PLLC, 11201 S.E. 8th St., Ste. 120, Bellevue, WA, 98004-6457, for Appellant.
Sonia A Wolfman, Attorney General's Office/Ecology Division, P.O. Box 40117, Olympia, WA, 98504-0100, Thomas J. Young, Attorney General's Office/Ecology Division, P.O. Box 40117, Olympia, WA, 98504-0117, David W. Alvarez, Clallam County Prosecuting Attorney's Office, 223 E. 4th St., Ste. 11, Port Angeles, WA, 98362-3000, Mark Robert Johnsen, Karr Tuttle Campbell, 701 5th Ave., Ste. 3300, Seattle, WA, 98104-7055, David Alan Bricklin, Bricklin & Newman, LLP, 1424 4th Ave., Ste. 500, Seattle, WA, 98101-2258, for Respondents.
Brian Trevor Hodges, Pacific Legal Foundation, 10940 N.E. 33rd Pl., Ste. 210, Bellevue, WA, 98004-1432, Ethan Blevins, Attorney at Law, 1016 165th Pl. N.E., Bellevue, WA, 98008-3735, John Maurice Groen, Pacific Legal Foundation, 930 G. St., Sacramento, CA, 95814-1802, as Amicus Curiae on behalf of Pacific Legal Foundation.
Tim Trohimovich, Futurewise 816 2nd Ave., Ste. 200, Seattle, WA, 98104-1535, as Amicus Curiae on behalf of Futurewise.
Tim Trohimovich, Futurewise 816 2nd Ave., Ste. 200, Seattle, WA, 98104-1535, as Amicus Curiae on behalf of Washington Environmental Counsel.
PART PUBLISHED OPINION
Johanson, J.¶1 The subject of this appeal is Western Washington Growth Management Hearings Board's (Board) final decision and order that upheld Jefferson County's 2014 Shoreline Master Program (Master Program). Olympic Stewardship Foundation (OSF), Citizen's Alliance for Property Rights Jefferson County (CAPR), et al., and Hood Canal Sand and Gravel (S & G) appeal various aspect s of the Board's decision. The appellants raise numerous and largely separate and distinct issues. Thus, in the published portion of the opinion, after providing brief background information and general standards of review, we address OSF's issues in Part One, CAPR's issues in Part Two, and S & G's issues in Part Three. We address the appellants' remaining arguments in Parts One, Two, and Three of the unpublished portion of the opinion respectively. Finding no error in the Board's decision, we affirm.
BACKGROUND
¶2 Since 1974, Jefferson County (the County) has had several Master Programs. Under the Shoreline Management Act of 1971 (SMA),1 each County is required to adopt and administer a Master Program. Citizens for Rational Shoreline Planning v. Whatcom County , 172 Wash.2d 384, 387, 258 P.3d 36 (2011). A Master Program is a combination of planning policies and development regulations that addresses shoreline uses and development. WAC 173-26-020(24), - 186.
¶3 In 2003, the Department of Ecology (DOE) formally adopted guidelines (Master Program guidelines) for the development and approval of new and updated Master Programs by local governments.2 Ch. 173-26 WAC. The SMA and the Master Program guidelines afford substantial discretion to local governments to adopt Master Programs that reflect local circumstances. WAC 173-26-171(3)(a). But Master Programs must comply with Master Program guidelines and will not be effective until reviewed and approved by the DOE. RCW 90.58.080(1), .090. A Master Program becomes part of Washington's shoreline regulations once approved by the DOE. Citizens for Rational Shoreline Planning , 172 Wash.2d at 392, 258 P.3d 36. The Board hears challenges to the DOE approval of Master Programs or amendments. RCW 90.58.190(2)(a).
¶4 In January 2004, the legislature mandated that all jurisdictions update their Master Programs by 2014. Ch. 173-26 WAC; RCW 90.58.080(7).
¶5 In 2005, the County initiated the Master Program amendment process. The County's Department of Community Development (DCD) formed two advisory committees to assist staff and consultants with planning and executing the Master Program amendment process. The DCD formed the Shoreline Technical Advisory Committee to compile and review current scientific and technical information. The DCD also established a Shoreline Policy Advisory Committee to assist with the development of goals, policies, and regulations based on the scientific and technical information. Between 2006 and 2008, the DCD informed the public about the update through e-mail and through numerous open public events to ensure public participation in the amendment process and provide the public with opportunities to comment on the Master Program.
¶6 In preparation for the Master Program amendment, the DCD staff worked with an outside consultant and the Shoreline Technical Advisory Committee to prepare the November 2008 "Final Shoreline Inventory and Characterization Report" (SI). The SI was based on over 200 sources, many of which focused on Western Washington and the Puget Sound and some discussed marine environments. The DOE provided technical support to the County for preparing the SI by conducting a detailed watershed characterization3 of East Jefferson County using a landscape analysis. This analysis identified areas that were the most important to maintaining ecosystems; areas that degraded the ecosystems because of human-caused alterations; and areas that were best suited for protection, development, and/or restoration.
¶7 A 2004 report relied on by the SI documented pollution from toxic substances, runoff from rainwater, loss of habitat, and declines in key parts of the food web ecology in many areas of the Puget Sound. The report further noted that the region's population was expected to grow by another 1.4 million people over the next 15 years.
¶8 The SI stated that the County's shoreline contains critical habitats and is home to numerous threatened and endangered species, including declining salmonid species. From that evaluation, the SI concluded that "virtually all of the County's nearshore marine environment supports or has the potential to support highly valuable and ecologically sensitive resources." Administrative Record (AR) at 6273.
¶9 The SI evaluated key species, habitats, and ecosystems in specific areas in the county shoreline. The SI also described development adjacent to individual shoreline segments, including the armoring,4 marinas, beach access stairs, docks, and other structures for each shoreline area. In addition, the SI included a large map folio detailing the characteristics of the County's state shorelines including marine and freshwater shoreline planning areas, water flows for rivers and streams, soil types, channel migration zones and flood plains, areas designated as critical areas and critical shoreline habitats, and the locations of aquatic vegetation, shoreline use patterns, and shellfish harvesting areas.
¶10 In the SI report, the County designated S & G's shoreline property as a "conservancy" area based on the property's environmental attributes, including: high-functioning shoreline resources with a low degree of modification or stressors, the presence of salmonid habitats, the presence of erosive or hazardous slopes, and the presence of commercial shellfish beds.
¶11 A 2009 action agenda by the Puget Sound Partnership identifies six broad categories of threats to the region's ecology, including habitat alteration, pollution, surface/groundwater impacts, artificial propagation, harvest, and invasive species. The agenda notes that these issues are likely to be exacerbated in the future by climate change and population growth.
¶12 In February 2010, the DCD staff and consultants prepared the "Cumulative Impacts Analysis" (CIA). The CIA assessed the total collective effects that the goals, policies, shoreline designations, and regulations proposed in the locally approved Master Program (Draft Master Program) would have on shorelines if all allowed use and development occurred.
¶13 In March 2010, the DCD sent the Draft Master Program to the DOE for review. The DOE also considered and sent comments about the CIA to the Jefferson County Board of Community Commissioners (Commissioners). In January 2011, the DOE concluded that the County met the SMA's procedural and policy requirements and announced conditional approval of the Draft Master Program with some required and recommended changes along with findings and conclusions to support the decision. After further edits and communication with the DOE, the Commissioners approved and adopted the County's final Master Program in December 2013. In February 2014, the DOE approved the Master Program and it became effective. The Master Program is codified at ch. 18.25 Jefferson County Code (JCC).5
¶14 Appellants OSF, CAPR, and S & G (collectively petitioners) each timely filed petitions for review with the Board to challenge the County's Master Program. The Board consolidated the petitions and conducted a hearing on the merits. On March 16, 2015, the Board upheld the Master Program, denied all of the petitioners' claims, and dismissed their petitions. Petitioners appealed to the Jefferson County Superior Court in April. In September 2015, upon a motion by the DOE that was supported by the County, we granted direct review removing the petitions from the superior court. Petitioners appeal the Board's decision and order.6
ANAL...
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