Buechel v. State Dept. of Ecology
| Decision Date | 10 November 1994 |
| Docket Number | No. 61039-8,61039-8 |
| Citation | 125 Wn.2d 196,884 P.2d 910 |
| Court | Washington Supreme Court |
| Parties | Richard F. BUECHEL, Petitioner, v. STATE of Washington DEPARTMENT OF ECOLOGY, Respondent. |
Heuston, Settle & Johnson, Robert W. Johnson, Shelton, for petitioner.
Christine O. Gregoire, Atty. Gen., Ronald L. Lavigne, Asst., Olympia, for respondent.
This case involves review of a Shorelines Hearings Board decision denying a landowner's application for a variance to allow the building of a residence on Hood Canal.
In 1983, Richard Buechel (hereafter the "landowner") purchased a narrow waterfront lot which lies between the Hood Canal shoreline and State Highway 106. The property had an "urban residential" zoning classification which requires a minimum 10,000-square-foot lot in order to build a structure on a shoreline and requires the structure to be set back at least 15 feet from the line of ordinary high water. 1 The landowner The entire lot is approximately 8,500 square feet, but most of it is underwater. A small 3-sided cement bulkhead had been built on the lot 30 to 40 years ago. James Hartley, a reviewer of shoreline permits for the shoreline management section of the Department of Ecology, inspected the lot and gave unrefuted testimony that a good portion of the fill (landward of the bulkhead) had been removed by wave action and that based on the flotsam from the tide, it appeared that about one-half to one-third of the existing bulkhead had been covered by water during the previous high tide. Hartley's report indicates the bulkhead was old and in disrepair. The landowner agreed most of the lot was underwater and testified that only the area of the fill within the bulkhead, about 40 by 21 feet, was "buildable". The "buildable" lot area was less than 1,000 square feet.
testified that he did not purchase the lot contingent on obtaining a variance from the regulations which prohibited building a residence on the lot.
In August 1984, the landowner applied for a substantial development permit and a variance to allow building on the property. The proposed development was a 2-story residence with no setback from the bulkhead. 2 The allegedly "buildable" area of the lot is 40 by 21 feet and the proposed building is 35 by 20 feet.
In September 1984, the Mason County Shoreline Advisory Board approved the landowner's application for the variance and the Mason County commissioners granted the variance application. However, any variance from an approved shoreline master program which is granted by a local government must be approved by the Department of Ecology (hereafter Department) before it is effective. 3 In December 1984, the Department denied the variance. The landowner appealed The Board found that the landowner wished to build a 20- by 35-foot 2-story home on a 1,000-square-foot lot in an area designated as urban residential. The Board found that the landowner was requesting to build waterward of the 15-foot setback on an undersized lot on a shoreline which was designated by the Shoreline Management Act of 1971 (SMA) as a shoreline of statewide significance. With regard to surrounding land uses, the Board found that some lots in the area are developed with permanent and vacation residences, that a residence is constructed on the adjacent lot to the west, that the landowner owns a permanent home across the road and a short distance from his beachfront property, and that nearby waterfront parcels are used for recreational purposes, involving docks, floats, decks or boat houses, but without homes on the properties. The Board identified the issue before it as whether the proposed construction was consistent with the SMA and the Mason County Shoreline Master Program (MCSMP), particularly the variance criteria. The Board concluded the threshold requirement for a variance under the MCSMP had not been met and affirmed the Department's denial of the variance.
the Department's decision to the Shorelines Hearings Board (Board).
The landowner appealed the Board's decision to the Mason County Superior Court which reversed the Board's decision on the grounds that it was "erroneous and arbitrary and capricious" and remanded for issuance of a variance and building permit.
On appeal to the Court of Appeals, that court articulated the standard of review and concluded that given the close nature of the case it could not say that a decision for either party would have been erroneous, much less "clearly erroneous" and therefore reversed the Superior Court and reinstated the Board's decision denying the variance.
In the landowner's Petition to this court, he argues that the Board's decision was clearly erroneous or arbitrary or capricious.
One issue is before this court. 4 123 Wash.2d 1019, 875 P.2d 635.
Was the action of the Shorelines Hearings Board clearly erroneous in denying a variance to allow the construction of a building that would have violated the minimum setback and the minimum lot size requirements of the Mason County Shoreline Master Program, or, was the Board's decision arbitrary or capricious?
CONCLUSION. The Shorelines Hearings Board was not clearly erroneous in denying a variance to allow the construction of a building that would have violated the minimum setback and the minimum lot size requirements of the Mason County Shoreline Master Program. The Board's decision was neither arbitrary nor capricious.
The administrative procedure act (former RCW 34.04.130) 5 governs judicial review of the Shorelines Hearings Board (Board) decision in this case. 6 The parties agree that the standard of review of the Board decision here is whether the decision is clearly erroneous in view of the entire record and the public policy contained in the Shoreline Management Act of 1971, RCW 90.58, or whether the decision was arbitrary or capricious. 7 Under the clearly erroneous standard, the Board's decision may only be reversed when the reviewing court is definitely and firmly convinced that a mistake has been made in light of the policies of the SMA and the reviewing court may not substitute its judgment for that of the Board. 8 A board's decision is arbitrary or capricious if it is "willful and unreasoning action in disregard of facts and circumstances." 9 Where there is room for two opinions, action is not arbitrary and capricious when exercised honestly and upon due consideration though it may be felt that a different conclusion might have been reached. 10
The landowner here contends that the Board had a duty to defer to the local decisionmakers. We disagree. Contrary to the landowner's argument regarding shoreline appeals, the Board hears the matter de novo 11 and the Board's de novo review accords the local government's decision no particular deference. 12 Appellate review is of the Board's decision, not the decision of the local government or the superior court, and judicial review of the Board's decision is based on the record made before the Board. 13 In the course of judicial review, due deference will be given to the specialized knowledge and expertise of the Board. 14
All development on the shorelines of this state undertaken after June 1, 1971, must conform to the SMA. 15 The SMA is to be broadly construed in order to protect the state shorelines as fully as possible. 16 The policy of the SMA was based upon the recognition that shorelines are fragile and that the increasing pressure of additional uses being placed on them necessitated increased coordination in their management and development. The SMA provides that it is the policy of the State to provide for the management of the shorelines by planning for and fostering all "reasonable and appropriate uses". 17 This policy contemplates protecting against adverse effects to the public health, the land and its vegetation and wildlife, and the waters of the state and their aquatic life, while protecting generally the public right of navigation and corollary rights incidental thereto. 18
The SMA requires a combination of state and local planning. The SMA requires all local governments to develop regulations ("shoreline master programs") to plan for the reasonable uses of the shorelines. 19 Local regulations must be approved and adopted by the Department. 20 The total of all approved shoreline management master programs constitute Washington State's Shoreline Management Master Program. 21
The Department has approved the Mason County Shoreline Master Program (MCSMP) and adopted it as a state regulation. 22 22 The area of the shoreline involved in this case, Hood Canal, has been designated by the SMA as a shoreline of statewide significance. 23
The SMA applies to uplands lying within 200 feet inland from the high water mark. 24 Generally, a landowner who wishes to develop property within the shorelines must obtain a permit from the local government. 25 A permit for a substantial development shall only be granted when the development is consistent with the applicable master program and the provisions of the SMA. 26 Any permit for a variance granted by a local government under an approved master program must be submitted to the Department for its approval or disapproval. 27 Appeal from the denial of a permit is then to the Board. 28 The Board is a quasi-judicial administrative body with specialized skills in hearing shoreline cases. 29 The Board includes three members of the Pollution Control Hearings Board, one member appointed by the Association of Washington Cities, one by the Association of County Commissioners, and the Commissioner of Public Lands or his designee. 30
Applicants for permits have the burden of proving that a proposed substantial development is consistent with the criteria that must be met before a permit is granted, and in any review of the granting or denial of an application for a permit as provided in RCW...
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Table of Cases
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