Clam Shacks of America, Inc. v. Skagit County, 15081-2-I

• Decision Date: 15 September 1986
• Docket Number: No. 15081-2-I,15081-2-I
• Court: Washington Court of Appeals
• Parties: CLAM SHACKS OF AMERICA, INC., a Washington corporation, Appellant, v. SKAGIT COUNTY, and Washington State Department of Ecology, Respondents.

Page 346

45 Wn.App. 346

725 P.2d 459

CLAM SHACKS OF AMERICA, INC., a Washington corporation, Appellant, v. SKAGIT COUNTY, and Washington State Department of Ecology,

Respondents.

No. 15081-2-I.

Court of Appeals of Washington,

Division 1.

Sept. 15, 1986.

Mark Bennett, Edmonds, for appellant Clam Shacks of America, inc.

John Moffat, Chief Civil Deputy, Office of Pros. Atty., Mt. Vernon, Patricia O'Brien, Asst. Atty. Gen., Charles B. Roe, Jr., Senior Asst. Atty. Gen., Dept. of Ecology PV-11, Olympia, for respondent Skagit County and Washington State Dept. of Ecology.

WEBSTER, Judge.

The appellant, Clam Shacks of America, Inc., brought a declaratory action in Skagit County Superior Court seeking a determination of whether or not its clam harvesting activity is subject to the provisions of the Shoreline Management Act of 1971 (SMA), RCW 90.58, and the Skagit County Shoreline Master Program (SCSMP) enacted thereunder. Appellant contended that the harvesting activity was not a "development" under the SMA, and was therefore not subject to the Act's conditional use permit requirements. The trial court granted respondent Skagit County's motion for summary judgment, holding that the harvesting activity was subject to conditional use permit requirements, irrespective of whether the activity was a "development". We affirm.

Clam Shacks leases approximately 1,500 acres of privately-owned mud-flat tidelands in Skagit Bay. In early 1983, Clam Shacks approached Skagit County with a proposal for commercial harvesting of clams with a newly developed hydraulic clam rake. The rake operates by injecting salt water into the sand to cause a state of liquification, which in turn causes clams to break free and float to the surface. The clams are then collected by hand.

The Skagit County Planning Department determined that the clam harvest rake operation did not constitute "dredging" within the meaning of the SMA and that the only permit Clam Shacks needed was a conditional use permit. Clam Shacks applied for and later received such a permit. The permit was granted subject to nine conditions, including that Clam Shacks not harvest during the winter water fowl season (October 1 through March 1), that Clam Shacks not harvest clams in certain areas, and that Clam Shacks sponsor a study on the impact of the hydraulic rake on vegetation, wildlife, and water quality.

Clam Shacks began operating one rake on March 1, 1984. Skagit County issued a cease and desist regulatory order on March 7 because the study on which the permit was conditioned was submitted late. Skagit County agreed to lift that order and permit Clam Shacks to begin harvesting based upon further conditions. Finding those conditions had not been complied with, the County issued another cease and desist order on March 30, 1984. Following receipt of the latter order, Clam Shacks filed a petition and application for a writ of mandamus and prohibition, and sought a determination that the clam harvesting activity was not subject to the regulatory requirements of the SMA or the SCSMP. Clam Shacks argued that the specific regulatory controls of the SMA apply only to shoreline activities which fall under the Act's definition of "development".

The court held that the harvesting operation constituted "aquaculture" within the meaning of the SCSMP, and therefore required a conditional use permit. The court further ruled that no decision was necessary on the issue of whether the harvesting activity constituted a "development" because the SMA does not require that a project constitute a "development" to be subject to a shoreline conditional use permit. Clam Shacks appeals that holding.

In reviewing a trial court's grant of summary judgment, the reviewing court makes the same inquiry as did the trial court. Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982). Accordingly, this court must determine whether there is a genuine issue as to any material fact and whether those facts require upholding the summary judgment as a matter of law. Tri-State Constr., Inc. v. Columbia Casualty Co./CNA, 39 Wash.App. 309, 312, 692 P.2d 899 (1984).

The first issue presented is whether or not the SMA authorizes regulation, through conditional use permits, of an activity which does not constitute a "development" under the Act.

The SMA of 1971 establishes a special land use regulatory system for shorelines. The policy of the Act, in recognition of the valuable and fragile nature of the state's shorelines, is to

provide for the management of the shorelines of the state by planning for and fostering all reasonable and appropriate uses.... 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....

RCW 90.58.020.

The Legislature has directed that the statute be "liberally construed to give full effect to the objectives and purposes for which it was enacted." RCW 90.58.900; Hayes v. Yount, 87 Wash.2d 280, 289, 552 P.2d 1038 (1976). "Liberal" is often used to signify an interpretation which produces broader coverage or more inclusive application of statutory concepts: "What is called a liberal construction is ordinarily one which makes a statute apply ... in more situations than would be the case under a strict construction." 2A C. Sands, Statutory Construction § 58.02 (4th ed. 1984). An unambiguous statute, however, is not subject to interpretation or construction. Bavarian Props., Ltd. v. Ross, 104 Wash.2d 73, 77, 700 P.2d 1161 (1985). Thus, resolution of this issue depends on whether or not one may reasonably read the SMA in the expansive manner asserted by the respondents.

The SMA uses two main approaches to shoreline regulation: a planning process and a permitting process. The central element of the planning process is the local master program. The Act gives responsibility to local governments to develop the master programs. RCW 90.58.050. The programs, which constitute the use regulations for the area, are to take into account the following elements: economic development, public access, recreation, transportation, land use, conservation, and historical, cultural, scientific, or educational value. Since the programs constitute use regulations for the various shorelines, they then form the basis for the subsequent decisions in the permitting process.

The SMA makes reference to "substantial development" permits, and "conditional use and variance" permits. The "substantial development" permit is the Act's main enforcement tool. To obtain such a permit, one seeking to undertake a substantial development on shorelines must first prove that the development would be consistent with the policies of the SMA, Department of Ecology guidelines, and the applicable local master program. RCW 90.58.140. "Development" is defined by the Act as

a use consisting of the construction or exterior alteration of structures; dredging; drilling; dumping; filling; removal of any sand, gravel, or minerals; bulkheading; driving of piling; placing of obstructions; or any project of a permanent or temporary nature which interferes with the normal public use of the surface of the water's overlying lands subject to this chapter at any state of water level.

RCW 90.58.030(3)(d). Subject to certain exceptions, a development is "substantial" if its value exceeds $1,000, or if it would materially interfere with the normal public use of the water or shorelines. Former RCW 90.58.030(3)(e).

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