Batchelder v. City of Seattle
| Decision Date | 06 March 1995 |
| Docket Number | No. 33373-9-1,33373-9-1 |
| Citation | 77 Wn.App. 154,890 P.2d 25 |
| Parties | David M. BATCHELDER, Respondent, v. The CITY OF SEATTLE, a Washington municipal corporation; the Shorelines Hearings Board of the State of Washington, Defendants, and Hugh Ainslie, Appellant, Douglas White, Defendant. |
| Court | Washington Court of Appeals |
Peter J. Eglick and Bob C. Sterbank, Helsell, Fetterman, Martin, Todd & Hokanson, Seattle, for respondent.
Robert David Tobin, Asst. City Atty., Seattle Law Dept., Seattle, for City of Seattle.
Brian K. Leonard, Seattle, for amicus curiae.
Lisa Barbara Martin, Madison, WI, for Shorelines Hearings Bd.
Hugh Ainslie appeals a judgment reversing an order of the Shorelines Hearings Board (SHB) affirming Seattle's approval of his Shoreline Substantial Development Permit (SSDP), and vacating his permit. He argues that: (1) the City did not improperly segment the review of the development project, and (2) the court erred in concluding that the SHB erred in determining that the Seattle Shoreline Master Program (SSMP) allowed minor view blockage.
This case involves a land development proposal for construction on the west shore of Portage Bay in Seattle. Hugh Ainslie is the owner of an 11,951 square foot rectangular Because the property is located within 200 feet of the high water mark of Portage Bay and the cost of the project exceeds $2,500, a Shoreline Substantial Development Permit (SSDP) was required by the Shoreline Management Act (SMA). RCW 90.58.030. Ainslie applied to the City of Seattle for approval to subdivide the parcel into four lots for individual sale, a "design departure" under the Seattle Land Use Code to provide less than the required setbacks for the construction, and a SSDP.
waterfront parcel on the northeast corner of Everett Avenue East and Boyer Avenue East. Ainslie sought to subdivide his existing parcel into four lots, rehabilitate the existing house on the shoreline lot, and construct three single-family houses on three newly created lots. To the north of Ainslie's property is a single family home owned by [890 P.2d 28] David Batchelder. To the south is the right-of-way for Everett Avenue East. Batchelder is involved because part of the view he now enjoys over the Ainslie property will be lost if the property is developed.
In January 1992, Seattle approved Ainslie's application for a short plat and design departure, prior to its issuance of his SSDP. Batchelder did not appeal the approval of the short plat and design departure. He did, however, file an appeal of the SSDP decision. Batchelder's primary complaint at the SHB hearing was view blockage. The view at issue was to the southeast; Batchelder would retain his easterly view across Portage Bay towards the University of Washington and the Seattle Yacht Club and the southeasterly waterfront view over the existing house on the Ainslie property.
The SHB found that the City's approval of the SSDP did not violate the shoreline setback requirements of the SSMP because the proposed structures would not be constructed shoreward of existing structures. The SHB dismissed Batchelder's appeal.
Batchelder appealed. The court reversed the decision of the SHB and vacated the SSDP, because it believed that the City improperly short platted Ainslie's property prior to consideration of his application for a SSDP, to avoid application of its shoreline setback requirement set out in Seattle Municipal
Code (SMC) 23.60.198(B)(1) and Director's Rule 4-89. The court held that the SHB's affirmation of this process was contrary to the SMA's prohibition against segmented, piecemeal development. This appeal followed.
Judicial review of a decision of the SHB is governed by the Administrative Procedures Act, RCW 34.05. RCW 90.58.180(3). Review is of the record of the agency, in this case the SHB, not the trial court record. RCW 34.05.558; Franklin County Sheriff's Office v. Sellers, 97 Wash.2d 317, 323-24, 646 P.2d 113 (1982), cert. denied, 459 U.S. 1106, 103 S.Ct. 730, 74 L.Ed.2d 954 (1983). RCW 34.05.570(3) sets forth the criteria for review. On factual matters, the administrative agency can be overturned if the decision is "arbitrary or capricious", or when:
The order is not supported by evidence that is substantial when viewed in light of the whole record before the court....
RCW 34.05.570(3)(e), (i). Evidence is substantial if it would convince an unprejudiced, thinking mind of the truth of the declared premise. See Nord v. Shoreline Sav. Ass'n, 116 Wash.2d 477, 486, 805 P.2d 800 (1991). Legal determinations of administrative agencies are reviewed under an error-of-law standard. Haley v. Medical Disciplinary Bd., 117 Wash.2d 720, 728, 818 P.2d 1062 (1991); Macey v. Department of Empl. Sec., 110 Wash.2d 308, 313, 752 P.2d 372 (1988). On matters of law the agency can only be overturned if the agency "has engaged in unlawful procedure or decision-making process, or has failed to follow a prescribed procedure; ... [or] [t]he agency has erroneously interpreted or applied the law". RCW 34.05.570(3)(c), (d).
Batchelder claims that Seattle conducted a piecemeal review of Ainslie's development improperly segmenting the project and the SHB erred in permitting the "segmentation." Every project for which a shoreline substantial development permit for secondary uses is sought must be consistent with both the applicable shoreline master program, in this case the Seattle Shoreline Master Program, and the SMA. RCW 90.58.140. The interpretation of a statute is a question of law. American Legion Post 32 v. Walla Walla, 116 Wash.2d 1, 5, 802 P.2d 784 (1991). While the burden of proof respecting the issuance of permits before local government is with the applicant, on appeal to the SHB "the person requesting the review has the burden of proof." RCW 90.58.140(7).
The SMA provides that:
The legislature finds that the shorelines of the state are among the most valuable and fragile of its natural resources and that there is great concern throughout the state relating to their utilization, protection, restoration, and preservation.... There is, therefor[e], a clear and urgent demand for a planned, rational, and concerted effort ... to prevent the inherent harm in an uncoordinated and piecemeal development of the state's shorelines.
RCW 90.58.020. To insure coordinated development of our shorelines the SMA establishes a permit system, with the primary responsibility for its administration upon local government, for the control of such development consistent with the SMA and the jurisdiction's "shoreline master program". RCW 90.58.050; 90.58.140(2); SMC 23.60. The master program, as required by RCW 90.58.100 is essentially a "zoning code" for the shorelines, which specifies kinds and types of development allowed.
Here, the City approved the "short plat", permitting division of the single lot into four separate parcels for sale and a "design departure" diminishing the setback requirements for the project on January 9, 1992, and the SSDP on January 30, 1992.
Batchelder and the Washington Environmental Council, in its amicus curiae brief, cite Merkel v. Port of Brownsville, 8 Wash.App. 844, 509 P.2d 390 (1973), for their proposition that the separate approvals mean that review of the development project was segmented. However, careful reading of Port of Brownsville reveals that the Port had obtained permits and began clearing and grading land in preparation for a development project which had not yet been reviewed for a substantial development permit. There the court did not reverse the permits which had been issued, rather it required that the injunction preventing further clearing of the land be maintained until review of the entire development project had been completed and the substantial development permit issued. Brownsville, at 851-52, 509 P.2d 390. Thus, Brownsville stands for the proposition that a single project may not be divided into segments for purposes of avoiding compliance with the SMA. Id., at 851, 509 P.2d 390.
"Piecemealing" a single project affecting uplands and shorelands, to allow one portion of the project to proceed while the other portion of the project awaits approval, is not present here. See Swift v. Island Cy., 87 Wash.2d 348, 362, 552 P.2d 175 (1976). There was no improper segmentation of the review process for the development and Merkel v. Port of Brownsville does not apply. The entire project was reviewed by the City and after the review was complete the required permits were issued based on that review. The "Analysis and Decision" of the City's Director of Department of Construction and Land Use was issued on January 9, 1992. SHB Ex. A-7. 1 The City's decision is 15 pages long and comprehensively reviews the proposed short plat, design departure, and shoreline development permit. Indeed, at the first page, the City identifies that all three decisions are being reviewed. The decision then discusses background data, pp. 2-3, analyzes the short plat subdivision, pp. 4-6, the shoreline substantial development permit and the requirements of the SSMP, pp. 7-11, and the design departure, pp. 12-13. The decision also explicitly lists conditions for approval of the short plat, design departure and the substantial development permit, pp. 13-15. The fact that the City issued separate approvals does not change the fact that the entire proposed development was reviewed under the SSMP and SMA; there was no segmentation of the review process.
Batchelder disputes Ainslie's claim that the SHB correctly interpreted the terms of the Seattle Shoreline Master Program regarding shoreline setbacks. Interpretation of a Shoreline Master Program provision is a question of law. Nisqually Delta Ass'n v. DuPont, 103 Wash.2d 720, 730, 696 P.2d 1222 (1985). Although substantial weight is...
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Table of Cases
...19.5(3) Bartel v. Ridgefield Lumber Co., 131 Wash. 183, 229 P. 306 (1924): 19.2(7), 19.2(12)(a) Batchelder v. City of Seattle, 77 Wn. App. 154, 890 P.2d 25 (1995), review denied, 127 Wn.2d 1022 (1995): 10.3(3)(a) Baxter-Wyckoff Co. v. City of Seattle, 67 Wn.2d 555, 408 P.2d 1012 (1965): 3.1......
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§ 10.3 - Shoreline Policies
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