Bellevue Farm Owners Association v. Shorelines Hearings Bd.

• Citation: 997 P.2d 380,100 Wash.App. 341
• Decision Date: 31 March 2000
• Docket Number: No. 24401-2-II.,24401-2-II.
• Court: Court of Appeals of Washington
• Parties: BELLEVUE FARM OWNERS ASSOCIATION, a Washington non-profit corporation, Appellant, v. STATE OF WASHINGTON SHORELINES HEARINGS BOARD, an agency of the State of Washington; San Juan County, a county of the fourth class; Friends of the San Juans, a Washington non-profit corporation; and Westcott Bay Sea Farms Limited Partnership, a Washington limited partnership, Respondents.

997 P.2d 380

100 Wash.App. 341

BELLEVUE FARM OWNERS ASSOCIATION, a Washington non-profit corporation, Appellant, v. STATE OF WASHINGTON SHORELINES HEARINGS BOARD, an agency of the State of Washington; San Juan County, a county of the fourth class; Friends of the San Juans, a Washington non-profit corporation; and Westcott Bay Sea Farms Limited Partnership, a Washington limited partnership, Respondents.

No. 24401-2-II.

Court of Appeals of Washington, Division 2.

March 31, 2000.

Glenn Jay Amster, Michael Barr King, Lane Powell Spears Lubersky, Seattle, for Appellant.

John T. Krall, Silverdale, Jean Marie Wilkinson, Asst. Atty. Gen., Olympia, Peter J. Eglick, Helsell, Fetterman, LLP, Seattle, for Respondents.

Kathryn L. Gerla, Asst. Atty. Gen., Olympia, for Amicus Curiae, Wash. Dept. of Ecology.

Brian Lee Holtzclaw, Cairncross & Hempelmann, Seattle, for Amicus Curiae, Wash. State Assoc. Realtors.

HUNT, J.

Bellevue Farm Owners Association appeals denial of a shoreline substantial development permit to build a 345-foot dock over partly public tidal mudflats on Westcott Bay, San Juan Island. We hold that the county's threshold Determination of Nonsignificance (DNS) did not preclude the Shoreline Hearings Board's (Board) independent review of the application. Finding the Board's decision supported by the record and the law, we affirm its denial of the permit.

FACTS

I. THE SITE

A. The Association Property

Members of the Bellevue Farm Owners Association (the Association) individually own residential lots in an 11-lot subdivision at the head of Westcott Bay, San Juan Island. The subdivision comprises 54 acres, with 2100 feet of shoreline, wetlands, and a tidal marsh (the Property). The Property has a shoreline designation of Natural, Conservancy, and Suburban.¹ A conservation easement for the San Juan County Preservation Trust² limits development on the Property and permanently sets aside sensitive areas.³

B. Westcott Bay

Westcott Bay (the Bay) is located at the northwest end of San Juan Island. It extends in a northeasterly direction from its mouth on Mosquito Pass. The Property abuts the bay's very shallow foot. The Bay contains extensive intertidal⁴ mudflats. The Property includes the mudflats from the Property's shoreline seaward to mean low tide.⁵ Beyond that point seaward, the mudflats and tidal water are public tidelands;⁶ seaward from extreme low tide the tidal waters are designated Shorelines of Statewide Significance.⁷

San Juan County designated the Bay a "conservancy"⁸ area because of its importance as an aquatic area; its historic, educational and/or scientific value; its high scenic value; and its relatively natural state. The Bay is highly productive for marine life, providing shellfish beds, spawning habitat for herring, and habitat for seabirds and marine mammals.

The shoreline is relatively undeveloped, except for a large dock owned by Westcott Bay Sea Farms,⁹ which supports an aquaculture operation. That dock is "a grandfathered structure,"¹⁰ built before enactment of the Shoreline Management Act (SMA). It is situated midway along the south shore of the Bay, southeast from the Property. The Sea Farms' dock is shorter than the Association's proposed dock, closer to deeper water, and traverses significantly less public tideland.

II. THE PROPOSED DOCK

The Property's original plat dedicated common areas for community recreation. Although the plat included a proposed dock, no permit application for this dock had been filed nor had any permit been approved. The initial design called for a 593-foot dock, "with a floating finger pier to accommodate 18 slips [and] large recreational vessels." A primary purpose for the dock was to eliminate residents' need to walk across the mudflats in order to launch dinghies at low tide.

In response to citizen concerns, the Association shortened the dock design to 375 feet. The Department of Fish and Wildlife opposed the 375-foot dock because the end float would shade eelgrass beds.¹¹ The dock was further reduced to 345 feet, which provided a sufficient setback to protect the eelgrass.

The 345-foot dock would include 230 feet of six-feet wide fixed pier, elevated five to eight feet above the water's surface at high tide.¹² The pier would connect to a 45-foot ramp leading to a 75-foot float, with zero to one foot of water below during minus tides. Below a .4 minus tide, the seaward end of the float would rest upon public tidelands and shellfish beds. To foster herring spawn in the Bay, the Association has agreed to remove the float from January 1 until March 15 each year. A drawing of the proposed 345-foot dock follows:

Exhibit Al: Drawing of proposed dock.

III. PROCEDURE

A. Below

The San Juan County planning department (the County) conducted the required State Environmental Policy Act (SEPA) review¹³ and issued a determination of nonsignificance (DNS).¹⁴ The County Hearing Examiner denied the Association's permit application to build the dock:

Under the facts, in this shallow, undeveloped, highly sensitive Conservancy area, the marginal convenience that a 345 foot dinghy dock will provide is outweighed by the risks created, the aesthetic impacts and the possibility of setting a precedent, leading to in time to adverse cumulative effects.

The Association appealed to the San Juan County Commissioners, who upheld the Hearing Examiner's denial. The Association appealed to the Board, which upheld the County's denial of the permit, in part because the dock would have a negative impact on scenic views.

B. Appeal

The Association appealed to the Thurston County Superior Court, which affirmed the Board's decision. The Association moved for direct review by the Washington Supreme Court, which denied the motion and transferred the case to us.

The Association argues: (1) The County's DNS, finding no significant impact on scenic view, was binding on the Board; (2) the County's scenic view ordinance lacked articulable standards, rendering it void for vagueness; (3) the Board erred in finding the dock would have significant impact on scenic views; (4) the Board misinterpreted the San Juan County Municipal Code (SJCMC) when it required the Association to demonstrate the necessity of the dock; and (5) the Board erred in denying the Association's permit because of precedential impact.

Respondents—the Board,¹⁵ San Juan County, Friends of the San Juans,¹⁶ and Westcott Bay Sea Farms—pose various arguments, including: (1) The DNS merely allowed the proposal to avoid an EIS; (2) the Association misconstrued WAC 197-11-390; (3) the SMA and San Juan County Shoreline Master Plan (Shoreline Master Plan) provided adequate guidelines for denying the Association's permit; and (4) the Board properly interpreted and applied the Shoreline Master Plan.

Respondents further argue: (1) There are available alternatives to the dock, such as pushing the dinghies across the mudflats at low tide or waiting for high tide; (2) the County's plan—to preserve the natural shoreline and scenic vistas and to concentrate dock development in areas already developed—outweighs the convenience of a few private dinghy owners seeking a "bridge-like" dock across primarily public tidelands; and (3) approval of this dock would establish a precedent for other similar applications, which would produce a "porcupine" effect along a conservancy-designated shoreline that the County seeks to protect. Respondents also seek attorney fees.

ANALYSIS

I. LAW AFFECTING SHORELINE DEVELOPMENT

A. SEPA

SEPA provides the basic structure for review of major land use development proposals, both public and private, shoreline and inland, that have significant impact on the environment.¹⁷ RCW ch. 43.21C. SEPA requires the "lead agency"¹⁸ to make a threshold determination—whether an EIS is required for the proposed project. RCW 43.21C.033; WAC 197-11-310, 330. The lead agency uses an environmental checklist to review the project's "proposed activities, alternatives, and impacts ... in accordance with SEPA's goals and policies."¹⁹ WAC 197-11-060, 315. If the lead agency determines that the project will not have a probable significant adverse environmental impact, it issues a DNS, and an EIS is not required.²⁰ RCW 43.21C.030, 031; WAC 197-11-340.

B. SMA

Shoreline development in Washington must not only comply with SEPA, but it must also be consistent with the SMA and local governments' corresponding shoreline master programs. Overlake Fund v. Shoreline Hearings Bd., 90 Wash.App. 746, 753, 954 P.2d 304 (1998); RCW 90.58.140(1). The SMA recognizes the shorelines' fragile nature, the increased demand for their use, and the necessity of a coordinated state and local effort to manage and to protect this resource. Buechel v. Department of Ecology, 125 Wash.2d 196, 203, 884 P.2d 910 (1994). Underlying this policy is the state's goal to manage shorelines "by planning for and fostering all `reasonable and appropriate uses.'" Buechel, 125 Wash.2d at 203, 884 P.2d 910 (citing RCW 90.58.020). "The SMA is to be broadly construed in order to protect the state shorelines as fully as possible." Buechel, 125 Wash.2d at 203, 884 P.2d 910.

A shoreline developer must first obtain a permit from the local government, which may grant a permit only if the proposal meets both SMA and applicable local shoreline master program requirements. Buechel, 125 Wash.2d at 204, 884 P.2d 910 (citing RCW 90.58.140; Nisqually Delta Ass'n v. City of DuPont, 103 Wash.2d 720, 724, 696 P.2d 1222 (1985)). Persons aggrieved by the local government's denial or grant of a shoreline development permit can seek review by the Board. RCW 90.58.180; Buechel, 125 Wash.2d at 204, 884 P.2d 910.

The Board is a quasi-judicial body that specializes in hearing shoreline cases; it reviews de novo the denial or grant of a shoreline substantial development permit. Buechel, 125 Wash.2d at 202, 204, 884 P.2d 910. A party can seek superior court review of the Board's denial or...