Honeywell v. Wash. State Dep't of Ecology
| Decision Date | 16 October 2017 |
| Docket Number | No. 75457-2-I,75457-2-I |
| Parties | David and Nancy HONEYWELL, d/b/a/ Orca Dreams LLC, Appellants, v. WASHINGTON STATE DEPARTMENT OF ECOLOGY, Respondent. |
| Court | Washington Court of Appeals |
413 P.3d 41
David and Nancy HONEYWELL, d/b/a/ Orca Dreams LLC, Appellants,
v.
WASHINGTON STATE DEPARTMENT OF ECOLOGY, Respondent.
No. 75457-2-I
Court of Appeals of Washington, Division 1.
FILED: October 16, 2017
Publication Ordered December 11, 2017
Stephanie Johnson O'Day, Law Offices of Stephanie Johnson O'Day, P.O. Box 2112, 540 Guard St. Ste. 120, Friday Harbor, WA, 98250-2112, for Appellant.
Sonia A. Wolfman, Attorney General's Office/Ecology Division, P.O. Box 40117, Olympia, WA, 98504-0100, for Respondent.
Trickey, J.
¶ 1 David and Nancy Honeywell d/b/a Orca Dreams LLC (collectively, the Honeywells) appeal a decision of the Shorelines Hearings Board (SHB). The SHB affirmed the Washington State Department of Ecology's (DOE) $55,000 shoreline violation civil penalty against the Honeywells. The Honeywells argue
that the SHB erred in concluding that cutting each regulated tree was a separate violation of the Shoreline Management Act of 1971 (SMA), chapter 90.58 RCW; acted arbitrarily and capriciously when it affirmed the DOE's use of a penalty matrix; erred in finding that 80 regulated trees were cut; and erred in concluding that the penalty the DOE imposed was reasonable. Finding no error, we affirm.
FACTS
¶ 2 In July 2013, the Honeywells purchased 30 acres of land on the southwestern shoreline of San Juan Island after winning the Powerball lottery. They later purchased 10 more acres. The Honeywells intended to develop the property into a family retreat, including building a new primary residence. The waters adjacent to the Honeywells' property are categorized as a "shoreline of statewide significance" under the SMA.
¶ 3 In the fall of 2013, the Honeywells hired Ben Engle to trim brush on the property.1 Engle worked on the property extensively, and the Honeywells paid him and his crew over $50,000.
¶ 4 On December 13, 2013, John Genuich, the chief building official for San Juan County (the County), responded to a complaint of tree cutting on the Honeywells' property. Genuich saw that approximately 200 yards of hillside along the slope had been completely cleared of trees and vegetation. He posted a stop work order.
¶ 5 On December 14, 2013, David Honeywell observed the condition of the hillside for the first time. The Honeywells then began to rectify the damage.
¶ 6 On December 16, 2013, County code enforcement officer Christopher Laws and DOE supervisor Paul Anderson visited the Honeywells' property. Laws and Anderson documented the damage. Laws posted a County emergency order, which required the Honeywells to stop work on the shoreline and install sediment and erosion controls. The
DOE and the County agreed that the County would lead the enforcement action and that the DOE would provide technical assistance.
¶ 7 On February 6, 2014, the County issued a notice of violation (NOV) for the shoreline clearing. The County assessed the Honeywells and Engle separate $1,000 penalties. The Honeywells were required to develop a restoration plan by March 27, 2014.
¶ 8 The Honeywells worked toward complying with the NOV, and Laws granted the Honeywells an extension to August 31, 2014. Anderson grew concerned because he had not been consulted about the extension and he believed that the restoration should be completed as soon as possible.
¶ 9 In June 2014, Anderson and Doug Gresham, a DOE wetland biologist, visited the Honeywells' property to collect data on the size and type of trees that had been cut. Anderson counted 80 stumps of trees with diameters from 5 to 32 inches, which would have had a diameter at breast height of at least 3 inches. Based on his calculations, Anderson determined that "the riparian forest that had been cleared was at least an 80–year–old stand."2 Northwest Ecological Services, LLC (NES), a company the Honeywells retained, prepared a report that concluded that 34 Douglas firs and alders were cut and 33 Scouler's willows were cut.3
¶ 10 The DOE'S Shorelines Environmental Assistance (SEA) program imposed a shoreline penalty of $55,000 on the Honeywells for the unauthorized removal of vegetation, including the 80 trees counted by Anderson and Gresham. The DOE treated the cutting of each tree with a diameter greater than 5 inches as a separate violation. The SEA program developed a penalty matrix that categorized
cut trees based on their size, which resulted in a $56,000 penalty. The DOE credited the Honeywells for the $1,000 civil penalty already issued by the County, which reduced the penalty to $55,000.
¶ 11 The Honeywells filed a petition for review of the shoreline penalty with the SHB. The SHB ruled on summary judgment that the DOE had the authority to impose a civil penalty separate from the County and that the penalty amount was not capped at $1,000. The SHB held a hearing and affirmed the $55,000 civil penalty.
¶ 12 The Honeywells appealed the SHB's decision to the Island County Superior Court. The trial court affirmed the SHB's decision.
¶ 13 The Honeywells appeal.
ANALYSIS
Each Regulated Tree as a Separate Violation
¶ 14 The Honeywells argue that the SHB erred in affirming the DOE's penalty because RCW 90.58.210 and WAC 173–27–280 limit the DOE to imposing a $1,000 penalty per violation and the Honeywells' single violation was cutting regulated trees without a permit.4 Because we conclude that it is proper to consider each cut tree as a separate violation, we disagree.5
¶ 15 This court looks to a statute's plain language to determine the statute's meaning. Campbell v. Dep't of Soc. & Health Servs., 150 Wash.2d 881, 894, 83 P.3d 999 (2004). A statute is ambiguous if it is subject to more than one reasonable interpretation. City of Seattle v. Winebrenner, 167 Wash.2d 451, 456, 219 P.3d 686 (2009).
¶ 16 If a statute's plain language is ambiguous, this court may review the statute's legislative history, including legislative bill reports, to help determine a statute's intent. Dep't of Ecology v. Campbell & Gwinn, L.L.C., 146 Wash.2d 1, 11–12, 43 P.3d 4 (2002). This court looks to the whole statute and must interpret it to avoid absurd results. Pub. Util. Dist. No. 1 of Pend Oreille County v. Dep't of Ecology, 146 Wash.2d 778, 791, 51 P.3d 744 (2002). The SMA must be "liberally construed to give full effect to the objectives and purposes for which it was enacted." RCW 90.58.900.
¶ 17 Local governments are charged with developing Shoreline Master Programs (SMPs) to protect Washington's shorelines. RCW 90.58.020. SMPs may be enforced through the use of civil penalties:
(1) Except as provided in RCW 43.05.060 through 43.05.080 and 43.05.150, the attorney general or the attorney for the local government shall bring such injunctive, declaratory, or other actions as are necessary to ensure that no uses are made of the shorelines of the state in conflict with the provisions and programs of this chapter, and to otherwise enforce the provisions of this chapter.
(2) Any person who shall fail to conform to the terms of a permit issued under this chapter or who shall undertake development on the shorelines of the state without first obtaining any permit required under this chapter shall also be subject to a civil penalty not to exceed one thousand dollars for each violation. Each permit violation or each day of continued development without a required permit shall constitute a separate violation.
RCW 90.58.210(1), (2). WAC 173–27–280 provides the DOE with authority to impose a civil penalty for violation of the SMA:
(1) A person who fails to conform to the terms of a substantial development permit, conditional use permit or variance issued under RCW 90.58.140, who undertakes a development or use on shorelines of the state without first obtaining a permit, or who fails to comply with a cease and desist order issued under these regulations may be subject to a civil penalty by local government. The [DOE] may impose a penalty jointly with local government, or alone only upon an additional finding that a person:
(a) Has previously been subject to an enforcement action for the same or similar type of violation of the same statute or rule; or
(b) Has been given previous notice of the same or similar type of violation of the same statute or rule; or
(c) The violation has a probability of placing a person in danger of death or bodily harm; or
(d) Has a probability of causing more than minor environmental harm; or
(e) Has a probability of causing physical damage to the property of another in an amount exceeding one thousand dollars.
....
(3) Amount of penalty. The penalty shall not exceed one thousand dollars for each violation. Each day of violation shall constitute a separate violation.
¶ 18 "Although the SMA directs each local government to develop and administer its SMP, the state has an extensive, statutorily-mandated role in the development and administration of SMPs." Citizens for Rational Shoreline Planning v. Whatcom County, 155 Wash. App. 937, 943, 230 P.3d 1074 (2010), aff'd, 172 Wash.2d 384, 258 P.3d 36 (2011).
¶ 19 The San Juan SMP (SJSMP) provides land use regulations that apply to "all of the land and waters of San Juan County which fall under the jurisdiction of the [SMA]." SAN JUAN COUNTY CODE (SJCC) 18.50.020(A). "Clearing and grading activities are allowed only if:
(1) associated with an approved shoreline development; (2) conducted only landward of a required building setback from shorelines; and (3) disturbed areas not converted to another use within one year are replanted with native species." SJCC 18.50.060(A). "Removal of trees smaller than three inches in diameter, as measured four feet above grade, shall not be restricted unless there is evidence that the shoreline is unstable. The removal of smaller trees, brush, and groundcover may be restricted in unstable shorelines." SJCC 18.50.330(B)(8).6
¶ 20 This court reviews an agency's statutory interpretation and legal conclusions de novo under the error of law standard. Greenen v. Bd. of Accountancy, 126 Wash. App. 824...
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