Hayes v. Yount
| Decision Date | 15 July 1976 |
| Docket Number | No. 43776,43776 |
| Citation | 552 P.2d 1038,87 Wn.2d 280 |
| Parties | , 6 Envtl. L. Rep. 20,767 Edward W. HAYES, Respondent, v. George YOUNT et al., Appellants. |
| Court | Washington Supreme Court |
Grahame Bell, Everett, Slade Gorton, Atty. Gen., Charles B. Roe, Jr., Robert V. Jensen, Asst. Attys.Gen., Olympia, for appellants.
Anderson, Hunter, Dewell, Baker & Collins, P.S., William W. Baker, Everett, for respondent.
The Department of Ecology, the Attorney General and a private citizen appeal from an order of the Superior Court granting respondent's motion for summary judgment and reinstating a substantial development permit issued by Snohomish County to fill 93 acres of wetlands in the Snohomish River estuary.That permit, required by the Shoreline Management Act of 1971, RCW 90.58, authorized 'operation of a solid waste landfill and marine industrial area' on respondent's property.A review of the county decision was made by the Shorelines Hearings Board which vacated the permit and remanded the matter for further consideration by the county.Respondent petitioned for review of the Board's final order in Superior Court.The court held certain findings and the order of the Board to be arbitrary and capricious and further held the Board's action in the particular circumstances to be an unconstitutional taking of private property.We conclude, however, that the findings, conclusions and order of the Shorelines Hearings Board are neither arbitrary and capricous nor clearly erroneous and that the Board's order imposes no present permanent restriction on the use of respondent's property.The judgment of the trial court is therefore reversed and we remand the matter for further proceedings consistent with this opinion.
Respondent owns approximately 90 acres of unimproved land bordered by Eby Slough on the north, Steamboat Slough on the south, and the Tulalip Indian Reservation on the west.In 1891, dikes were constructed on three sides of the property to protect against inundation by tides and allow agricultural use.The dikes were breached in 1959, and since that time a large portion of the site has been subject to periodic tidal inundation for about one-third of each day.The subject property is intersected by Interstate Highway 5, old Highway 99, and railroad trackage.Approximately one-half of the area, that located east of Interstate Highway 5, is now a saltwater marsh habitat.The entire site is part of the area designated by the legislature as '(s)horelines of state-wide significance.'RCW 90.58.030(2)(e)(v)(A), 90.58.030(2)(e)(vi), 90.58.030(2)(f).
Prior to passage of the Shoreline Management Act of 1971, respondent obtained a flood control permit to operate a sanitary landfill.Before the permit expired in April 1975, some 10 acres of the site had been partially filled with nonputrescible solid waste.Vegetation and wildlife on the remainder of the site are typical of Puget Sound salt marshes.The wetland supports a variety of animals, including ducks, and conflicting evidence was presented as to the importance of the site in the life cycle of commercially important fish.Surrounding land uses include three lumber mills, a boat marina and a sewage settlement basin across the slough to the north.The parcel to the west has recently been filled with solid waste from a municipal source.Across a slough to the south lies a boat manufacturer and boat works.In the Snohomish River estuary to the east there is some farming, but no commercial or industrial activity.
In March 1973, respondent filed with Snohomish County1 his application for a substantial development permit.SeeRCW 90.58.140(2), 90.58.030(3)(e).The application sought a permit to operate a solid waste landfill and to 'continue to expand trans-shipping capabilities and heavy industrial use.'A site plan, vicinity map and an 'environmental assessment' prepared by respondent were included in the material submitted with the application.Respondent's publication of notice of hearing on the application described the proposed development as a '(m)arine industrial area.'After receipt of this material, the county determined that the project constituted a major action significantly affecting the quality of the environment within RCW 43.21C.030 and an environmental impact statement was prepared pursuant to the State Environmental Policy Act, RCW 43.21C.The final environmental impact statement described the proposed project as 'landfilling (with 937,000 cubic yards of fill material), channel extension, two docks, certain dredging, a future railroad spur, and construction of a steel fabrication facility.'
The planning staff and planning commission of the county, after a public hearing, recommended denial of the permit sought by respondent.These findings and recommendations were considered and rejected by the county commissioners who, in September 1973, granted a substantial development permit 'for operation of a solid waste landfill and marine industrial area', adding the condition that '(o)nly nonputrescible wastes . . . be allowed' in the fill.This condition was not, however, made a part of the language of the permit.
Appellants filed a formal request for review by the Shorelines Hearings Board and pursuant to the Shoreline Management Act of 1971, the Board held a 3-day de novo hearing, taking the testimony of 21 witnesses and receiving 84 exhibits.In April 1974, the Board submitted to the parties its proposed findings of fact, conclusions of law and order.No exceptions were taken and the following month these findings, conclusions and order were made final by the Board.
All the sitting members of the Shorelines Hearings Board concurred in its findings and conclusions.2The Board found that the 10 acres previously filled constituted an 'eyesore' and that, although the river estuary constitutes a fragile ecosystem, the ecological impact of the proposed fill would be 'insignificant.'The Board also found that the 'cumulative effect of other such developments would cause irreversible damage to the ecosystem of the estuary at some unknown and unpredictable stage of development.'In its conclusions of law the Board interpreted WAC 173--16--060(14)(c) to mandatorily prohibit the disposal of solid wastes, but not other types of fill, within shoreline areas.The Board determined that the permit did not describe with particularity and certainty what type of development was being authorized and that the county's failure to include conditions in the language of the permit itself would lead to further controversy and uncertainty on the part of both the public and permittee.It concluded that the substantial development permit was too vague to ascertain the extent to which the proposed use was consistent with the policy set forth in RCW 90.58.020.
The order of the Board, as distinguished from its findings and conclusions, was signed by only three members.It vacated the permit and remanded the matter to the county for reconsideration of the issuance of a permit in accordance with the Board's findings and conclusions (e.g., that the fill material be other than solid waste) and limited in area to the existing 10-acre landfill on the site.The fourth Board member concurred in the above order 'as far as it goes' but further stated he would allow respondent to also fill that portion of the site to the west of Interstate Highway 5, an additional area of approximately 32 acres.
Respondent filed in Superior Court a petition for review of the Board's decision.SeeRCW 90.58.180(3).The court granted respondent's motion for summary judgment, holding certain actions of the Board arbitrary and capricious and concluding that 'as applied to this particular set of facts the order and regulation (WAC 173--16--060(14)(c)) constitute an unconstitutional taking of property.'The trial court ordered the substantial development permit issued by the county reinstated with the additional restriction that the fill be covered with at least 18 inches of compacted soil or sand.3
The proceedings of the Shorelines Hearings Board, a quasi-judicial body, and judicial review of its decisions regarding shoreline development permits are governed by the Administrative Procedure Act,RCW 34.04.RCW 90.58.170; 90.58.180(3).Its actions are to be affirmed unless the administrative findings, conclusions or decisions are 'clearly erroneous in view of the entire record as submitted and the public policy contained in the act of the legislature authorizing the decision or order; or . . . arbitrary or capricious.'RCW 34.04.130(6)(e), (f);Department of Ecology v. Ballard Elks Lodge 827, 84 Wash.2d 551, 555, 527 P.2d 1121(1974);Stempel v. Department of Water Resources, 82 Wash.2d 109, 113--14, 508 P.2d 166(1973).Agency action is 'arbitrary or capricious' if there is no support in the record for the action which is therefore "wilful and unreasoning action, in disregard of facts and circumstances."Northern Pac. Transp. Co. v. State Util. & Transp. Comm'n, 69 Wash.2d 472, 478, 418 P.2d 735, 739(1966).Under the more rigorous 'clearly erroneous' standard agency action may be reversed where the reviewing court is firmly convinced that a mistake has been committed, even though there is evidence supporting the action.Ancheta v. Daly, 77 Wash.2d 255, 260, 461 P.2d 531(1969).The existence of such a mistake must be considered by the court in light of the policy contained in the authorizing statute, which is made part of the standard of review by RCW 34.04.130(6)(e).Schuffenhauer v. Department of Employment Security, 86 Wash.2d 233, 235, 543 P.2d 343(1975).Under neither standard may a court simply substitute its judgment for that of the agency.Farm Supply Distribs, Inc. v. State Util. & Transp. Comm'n, 83 Wash.2d 446, 449, 518 P.2d 1237(1974).
In the present case, the trial court concluded that certain of the Shorelines Hearings Board's findings,...
To continue reading
Request your trial
-
Friends of the Earth v. Hall
...even split of the board does not constitute a binding decision, and merely leaves the permit standing as issued. Hayes v. Yount, 87 Wash.2d 280, 295-96, 552 P.2d 1038 (1976). Consequently, collateral estoppel principles do not apply. Shoemaker v. Bremerton, 109 Wash.2d at 507-08, 745 P.2d 8......
-
Postema v. Pollution Control Hearings Bd.
...that deference to the agency's interpretation is particularly appropriate where its own regulations are concerned, Hayes v. Yount, 87 Wash.2d 280, 289, 552 P.2d 1038 (1976), the rules do not contain a general significant hydraulic continuity standard applying to all basins any more than the......
-
State v. Bartholomew
...548 (1977); statutes should whenever possible be interpreted so no portion is superfluous, void, or insignificant, Hayes v. Yount, 87 Wash.2d 280, 552 P.2d 1038 (1976); and "all of the provisions of the act must be considered in their relation to each other and, if possible, harmonized to i......
-
Nielsen v. Employment Sec. Dept. of State
...they are adopted pursuant to express legislative authority. State v. Burke, 92 Wash.2d 474, 478, 598 P.2d 395 (1979); Hayes v. Yount, 87 Wash.2d 280, 552 P.2d 1038 (1976). We may consider the history of the regulation in determining its meaning. Cherry v. Municipality of Metro. Seattle, 116......
-
Table of Cases
...Seattle, 131 Wn.2d 706, 934 P.2d 1179, corrected by 943 P.2d 265 (1997): 16.4(1), 17.2(4)(c), 17.2(5)(a), 17.2(6)(b), 17.3 Hayes v. Yount, 87 Wn.2d 280, 552 P.2d 1038 (1976): 10.3(1), 10.5(1) Haynes v. Seattle Sch. Dist. No. 1, 111 Wn.2d 250, 758 P.2d 7 (1988), cert. denied, 489 U.S. 1015 (......
-
§ 10.3 - Shoreline Policies
...which means that reviewing bodies and courts will give the Act effect by reading it expansively rather than narrowly. Hayes v. Yount, 87 Wn.2d 280, 289, 552 P.2d 1038 (1976); Hama Hama Co. v. Shorelines Hearings Bd., 85 Wn.2d 441, 446, 536 P.2d 157 (1975). This requirement of liberal constr......
-
§ 10.5 - Shoreline Permits
...see also RCW 36.70B.020(4). The permit application must define the project and the site with considerable specificity. Hayes v. Yount, 87 Wn.2d 280, 296, 552 P.2d 1038 (1976); Save a Valuable Env't v. City of Seattle, SHB No. 82-29, 1983 WL 197315 (Final Findings of Fact, Conclusions of Law......