Herman v. State Shorelines Hearings Bd.

• Decision Date: 05 February 2009
• Docket Number: No. 26459-9-III.
• Citation: Herman v. State Shorelines Hearings Bd., 204 P.3d 928 (Wash. App. 2009)
• Court: Washington Court of Appeals
• Parties: Lloyd A. HERMAN, Respondent and Cross-Appellant, v. STATE OF WASHINGTON SHORELINES HEARINGS BOARD, Spokane County, Defendant, State of Washington Department of Ecology, Appellant.

204 P.3d 928

Lloyd A. HERMAN, Respondent and Cross-Appellant, v. STATE OF WASHINGTON SHORELINES HEARINGS BOARD, Spokane County, Defendant State of Washington Department of Ecology, Appellant.

No. 26459-9-III.

Court of Appeals of Washington, Division 3.

February 5, 2009.

Publication Ordered March 31, 2009.

Thomas J. Young, Attorney General's Office, Olympia, WA, for Appellant/Cross-Respondent.

Dennis Dean Reynolds, Law Office of Dennis D. Reynolds, Bainbridge Island, WA, for Respondent/Cross-Appellant.

SWEENEY, J.

¶ 1 This appeal follows a decision by the State of Washington Shorelines Hearings Board that affirmed imposition of a substantial penalty on a landowner for violating the terms of an earlier agreement with governmental agencies, and for undertaking substantial development without a permit and in violation of the Shoreline Management Act of 1971 (Shoreline Management Act), chapter 90.58 RCW. The superior court, sitting in its appellate capacity, admitted and considered new evidence on the propriety of the landowner's actions. The court then concluded based on that evidence that most of the unpermitted development should remain in place. Both the decision to admit additional evidence and the conclusion that the development did not run afoul of either the landowner's earlier agreement or the Shoreline Management Act are wrong. And we therefore reverse the superior court and affirm the decision of the Shorelines Hearings Board.

FACTS

¶ 2 Lloyd Herman purchased a hillside single-family residence on the shores of Liberty Lake from his father in 1970. Liberty Lake is protected as a shoreline of the state under the Shoreline Management Act. WAC 173-20-660(31).

¶ 3 Mr. Herman's father purchased the home in 1953 and remodeled it to expand the footprint of the home to 11,000 square feet. At the time Mr. Herman purchased the property, the following alterations were already in place: a dirt and timber trail with steps down to the beach, a rock bulkhead, a platform and a dock, retaining walls made from creosoted timbers, and a few large trees that reinforced the slope down to the lake.

¶ 4 Between 1970 and 1993, Mr. Herman improved the property. He added a crane and lift, anchored in a pier made out of cement and rocks on top of a naturally occurring rock outcropping in the lake. He removed the old platform and replaced it with a deck that was approximately four square feet larger. He replaced the pier blocks supporting the deck with rock from the beach and added rock retaining walls. He constructed a roof over the deck, supported by eight-foot-high posts, which served as a second deck. Mr. Herman replaced the wooden stairs at the end of the deck with wider, concrete stairs.

¶ 5 In 1993, the Department of Ecology imposed a $1,000 penalty on Mr. Herman for improving the shoreline without a shoreline permit and in violation of the Shoreline Management Act and the Spokane County Shoreline Master Program. The work it complains of included filling the lake waterward of the ordinary high water mark and constructing a rock and mortar bulkhead, a covered deck, and a concrete platform and stairs. Mr. Herman appealed the 1993 penalty to the Shorelines Hearings Board. Ecology and Mr. Herman reached a settlement in 1995, before a hearing on the merits of Mr. Herman's appeal. They recorded their agreement in a stipulation and agreed order of dismissal. Mr. Herman agreed to remove the boat crane and lift and a portion of the retaining wall or bulkhead on the northern property line. Ecology agreed to repeal the $1,000 penalty.

¶ 6 The essence of the present dispute is whether or to what degree Mr. Herman complied with the 1995 agreement and whether he violated other provisions of the Shoreline Management Act. The parties agree, however, that Mr. Herman completed additional work on the property following the 1995 agreement.

¶ 7 Specifically, Mr. Herman modified the deck by moving the fill and rock under the deck a few feet landward. He enclosed the deck structure, added a peaked roof to resemble the historic Liberty Lake Pavilion, and furnished it with a kitchen sink, toilet, shower, refrigerator, tables, chairs, and a concrete patio. The peaked roof was designed to divert water to a vegetated area behind the deck structure. Mr. Herman widened the steps from the dock up to the deck structure by adding two short sets of stairs down to the beach. He planted the hillside with an assortment of native and non-native plants. He covered the bulkhead on the north side of the property with concrete, creating a pathway along the lakefront and installed a handrail and lights. He replaced the dirt and timber trail to the beach with a concrete stairway, eight feet wide in places, designed to divert storm water runoff. And Mr. Herman did not remove the crane.

¶ 8 Ecology, Spokane County, and the Washington Department of Fish and Wildlife learned about Mr. Herman's additional modifications in 2003. The agencies sent Mr. Herman letters expressing concern about potential violations. Mr. Herman responded with a letter justifying his additions. In January 2004, representatives of the agencies met with Mr. Herman at his property to look at the modifications.

¶ 9 In May 2004, Ecology and Spokane County issued a joint shoreline violation order. It included a $30,000 civil penalty, a stop-work order, and a requirement that Mr. Herman submit a plan within 30 days detailing his plan to restore the shoreline. Mr. Herman discontinued work on his property and appealed the order to the Shorelines Hearings Board.

¶ 10 The Shorelines Hearings Board held a hearing and issued findings of fact, conclusions of law, and an order. It concluded that Mr. Herman substantially violated the agreement. The violations included widening the concrete steps to the beach, failing to remove the lift and crane, failing to remove a portion of the bulkhead, failing to remove a portion of the deck cover, failing to remove the fill and stacked rocks from under the deck, planting non-native vegetation to stabilize the slope, and generally increasing the development of the shoreline rather than decreasing development. The board further concluded that, independent of the agreement, Mr. Herman violated the Shoreline Management Act by undertaking substantial development without a permit, including the concrete stairway and retaining walls constructed after the agreement. The board affirmed the $30,000 penalty that Ecology and Spokane County imposed but ordered $10,000 of the penalty suspended on condition that Mr. Herman fully comply with the order's provisions within one year. The board also instructed Mr. Herman on the restoration plan.

¶ 11 Mr. Herman appealed the Shorelines Hearings Board's order to superior court. Mr. Herman also successfully moved to stay enforcement of the board's order pending judicial review. With Ecology's approval, Mr. Herman retained two consulting firms to prepare reports regarding storm water management and geotechnical slope stability.

¶ 12 The superior court granted Mr. Herman's motion to supplement the administrative record with the reports prepared by these consultants. Ecology objected to the admission of the reports into evidence.

¶ 13 The court first concluded that there was inadequate error to reverse given the criteria of the Administrative Procedure Act (APA), chapter 34.05 RCW, and it issued a decision in a letter ruling that affirmed the board's order. The superior court later entered findings of fact, conclusions of law, and issued an order. The court affirmed the board's order, subject to several conditions. The court concluded that many of the structures on the property could not be safely removed without destabilizing the slope. The court refused to order Mr. Herman to remove any of the structures. And the court required Mr. Herman to obtain a permit only for the two small stairways to the beach. The court remanded one issue to the board— whether the $10,000 suspended portion of the penalty should be waived.

¶ 14 Both Ecology and Mr. Herman appeal.

DISCUSSION

ADMISSION OF EVIDENCE NOT BEFORE THE BOARD

¶ 15 Ecology first contends that the superior court erred by admitting and considering evidence that was not admitted or considered by the Shorelines Hearings Board. Mr. Herman responds that the court appropriately admitted and considered new evidence for any of three reasons: (1) the new evidence fell within one of the exceptions to the general statutory prohibition against admitting new evidence; (2) the new evidence was contemplated by the board's order and Mr. Herman's agreement with Ecology; or (3) the evidence was necessary for the superior court to resolve the factual issues it was required to address by the appeal.

¶ 16 Whether the superior court properly admitted additional evidence when it reviewed the board's decision is a question of law that we will review de novo. See Port of Seattle v. Pollution Control Hearings Bd., 151 Wash.2d 568, 588, 90 P.3d 659 (2004).

¶ 17 The APA governs judicial review of agency actions, including the Shorelines Hearings Board's decisions. Buechel v. Dep't of Ecology, 125 Wash.2d 196, 201, 884 P.2d 910 (1994); see RCW 90.58.180(3). "[R]eview by an appellate court is to be on the agency record without consideration of the findings and conclusions of the superior court." Waste Mgmt. of Seattle, Inc. v. Utils. & Transp. Comm'n, 123 Wash.2d 621, 633, 869 P.2d 1034 (1994). However, where the superior court accepts additional evidence under RCW 34.05.562 and "`information needed for review is contained in the superior court record of proceedings, not the agency record,'" we consider the superior court record. Twin Bridge Marine Park, LLC v. Dep't of Ecology, 162 Wash.2d 825, 834, 175 P.3d 1050 (2008) (quoting Waste Mgmt. of Seattle, 123 Wash.2d at 633-34, 869 P.2d 1034).

¶ 18 RCW 34.05.562(1) sets the parameters for superior court consideration of additional evidence. A superior...