Kailin v. Clallam County

• Decision Date: 09 November 2009
• Docket Number: No. 63901-3-I.,63901-3-I.
• Citation: 220 P.3d 222,152 Wn. App. 974
• Court: Washington Court of Appeals
• Parties: Eloise KAILIN and The Harvey Kailin Trust, Eloise Kailin, Trustee, Respondents, v. CLALLAM COUNTY and State of Washington Department of Ecology, Appellants.

220 P.3d 222

152 Wn. App. 974

Eloise KAILIN and The Harvey Kailin Trust, Eloise Kailin, Trustee, Respondents, v. CLALLAM COUNTY and State of Washington Department of Ecology, Appellants.

No. 63901-3-I.

Court of Appeals of Washington, Division 1.

November 9, 2009.

Craig Andrew Ritchie, Ritchie Law Firm PS, Port Angeles, WA, for Respondents.

Douglas Emry Jensen, Clallam Co. Prosecuting Attorney — Civil, Port Angeles, WA, Laura J. Watson, Attorney General's Office, Olympia, WA, for Appellants.

COX, J.

¶ 1 The sole issue in this case is whether the shorelines hearings board has subject matter jurisdiction to review conditions to a substantial development permit where those conditions arise from Clallam County's critical areas ordinance. Because the critical areas ordinance is not a part of the County's shoreline master program, the shorelines hearings board lacks jurisdiction to consider issues regarding that ordinance. We reverse the superior court and reinstate the decision of the shorelines hearings board.

¶ 2 In 2004, Clallam County reviewed the first application to construct a residence submitted by Dr. Eloise Kailin and the Harvey Kailin Trust, whose trustee is Dr. Kailin (collectively "Dr. Kailin"). That proposal included a request for an exception to the County's critical areas ordinance. The County denied the requested exception. An appeal to the superior court followed. Review is still pending, as is a previous appeal to the shorelines hearings board based on the first proposal. The parties agreed that a new proposal would be submitted in support of a request for approvals. This second proposal is the subject of this appeal.

¶ 3 The unchallenged findings of the shorelines hearings board state the relevant factual and procedural background for this appeal. Dr. Kailin proposes to build a single family residence within 200 feet of the shoreline of Sequim Bay, Clallam County. The proposed building site lies within the Clallam County Shoreline Master Program Rural Shoreline Environment. The residence is to include two bedrooms and bathrooms on one floor, with two more bedrooms and baths and a large area of additional living space on the second floor.

¶ 4 The County approved the shoreline substantial development permit, subject to approval of the reasonable use exception required for wetland buffers under the County's critical areas ordinance.¹ The property contains a Class III regulated wetland and a Class I aquatic habitat conservation area (Sequim Bay). Dr. Kailin's environmental checklist acknowledges the existence of a wetland on the property, describing it as a "4050 square foot Class III palustrine emergent wetland."² The proposed residence would be 40.5 feet within the County's 50-foot protective wetland buffer under its critical areas ordinance.

¶ 5 Although the buffer requirement is contained in the County's critical areas ordinance, it is not contained in the County's shoreline master program.³ The County's imposition of the condition arises from its ordinance that states, "All developments proposed on the shorelines of the County shall be consistent with the Chapter 27.12 CCC, Interim Critical Areas Code, as it applies, as amended."⁴ The residence cannot be built without a reasonable use exception from the buffer requirement and a zoning variance for a reduction in the road setback. The County approved the reasonable use exception and variance, subject to a number of conditions, including a reduction in the size of the proposed footprint of the residence.

¶ 6 Dr. Kailin then petitioned the shorelines hearings board for review of the County's decision. Dr. Kailin raised several issues on appeal, including the County's failure to grant a critical areas ordinance reasonable use exception to her application, as presented. The board upheld the substantial development permit, as written. As to the reasonable use exception, the board concluded that it lacked subject matter jurisdiction "to address, grant, or deny a reasonable use exception for intrusion into a wetland buffer requirement" of the County's critical areas ordinance.⁵

¶ 7 Dr. Kailin petitioned for review of the shorelines hearings board decision by the Clallam County Superior Court. Citing Futurewise v. Western Washington Growth Management Hearings Board,⁶ the superior court concluded that the board's decision was in error. The superior court remanded the case to the board for further hearings.

¶ 8 The County and the Department of Ecology appeal. Dr. Kailin did not cross-appeal.

SUBJECT MATTER JURISDICTION OF SHORELINES BOARD

¶ 9 The Department and Clallam County argue that the shorelines hearings board properly decided that it lacked subject matter jurisdiction to review conditions based on the County's critical areas ordinance because the ordinance is not incorporated into the County's shoreline master program.⁷ We agree.

¶ 10 Judicial review of a final administrative decision, including those by the shorelines hearings board, is governed by the Administrative Procedure Act, chapter 34.05 RCW (APA).⁸ In reviewing the decision, courts apply the standards of the APA directly to the administrative record before the agency.⁹ Relief from an agency decision may be granted when the agency has erroneously interpreted or applied the law.¹⁰ "[A]dministrative agencies are creatures of the Legislature, without inherent or common-law powers and, as such, may exercise only those powers conferred by statute, either expressly or by necessary implication."¹¹ The application of law to the facts is a question of law that we review de novo.¹²

¶ 11 The shorelines hearings board is a quasi-judicial agency created by RCW 90.58.170. The board's authority is statutorily limited by the following key provisions:

(1) "The shorelines hearings board may adopt rules and regulations governing the administrative practice and procedure in and before the board."¹³

(2) "Any person aggrieved by the granting, denying, or rescinding of a permit on shorelines of the state pursuant to RCW 90.58.140 may ... seek review from the shorelines hearings board...."¹⁴

(3) "Any person may appeal any rules, regulations, or guidelines adopted or approved by the department within thirty days of the date of the adoption or approval. The board shall make a final decision...."¹⁵

(4) "The department's decision to approve, reject, or modify a proposed master program or master program amendment by a local government not planning under RCW 36.70A.040 [GMA] shall be appealed to the shorelines hearings board...."¹⁶

¶ 12 Here, the issue before this court is a narrow legal issue: whether the shorelines hearings board has subject matter jurisdiction to address a reasonable use exception from the County's critical areas ordinance where that ordinance is not a part of the County's shoreline master program. For the following reasons we conclude that the board does not have such subject matter jurisdiction.

¶ 13 Historically, both the Shoreline Management Act of 1971, chapter 90.58 RCW (SMA), and the Growth Management Act, chapter 36.70A RCW (GMA), could bear on a proposed development on or near a "critical area" located within a shoreline area. In 2003, the legislature amended the SMA and GMA by enacting "An Act Relating to the integration of shoreline management policies with the growth management act; amending RCW 90.58.030, 90.58.090, 90.58.190, and 36.70A.480... ."¹⁷ The supreme court has referred to this act as Engrossed Substitute House Bill (ESHB) 1933.¹⁸ That court also recently discussed the history of the interaction between the two acts and the 2003 amendments.¹⁹

¶ 14 Dr. Kailin does not argue that prior to the 2003 enactment of ESHB 1933 the shorelines hearings board had subject matter jurisdiction to review a reasonable use exception under the County's critical areas ordinance. A plain reading of the above numbered jurisdictional provisions (1), (3), and (4) shows that none of them applies to this case. Thus, none of those provisions would support such an argument.

¶ 15 Because this is a case involving a shoreline substantial development permit, we examine former RCW 90.58.180(1), which the above provision number (2) succeeded in 2003. Former RCW 90.58.180(1) provided, in relevant part Any person aggrieved by the granting, denying, or rescinding of a permit on shorelines of the state pursuant to RCW 90.58.140 may seek review from the shorelines hearings board by filing a petition ....²⁰

RCW 90.58.140 provides, in relevant part,

(1) A development shall not be undertaken on the shorelines of the state unless it is consistent with the policy of this chapter and, after adoption or approval, as appropriate, the applicable guidelines, rules, or master program.

(2) A substantial development shall not be undertaken on shorelines of the state without first obtaining a permit from the government entity having administrative jurisdiction under this chapter.

¶ 16 A permit shall be granted:

....

(b) After adoption or approval, as appropriate, by the department of an applicable master program, only when the development proposed Is consistent with the applicable master program and this chapter.²¹

¶ 17 Reading these statutes together, we conclude that they granted the shorelines hearings board subject matter jurisdiction to consider appeals of aggrieved persons involving shoreline permits where consistency with the SMA and/or an applicable shoreline master program was at issue. The scope of subject matter jurisdiction did not exceed these express limits because no other standards regarding substantial development permits are mentioned in the statute.

¶ 18 Here, the County approved Dr. Kailin's substantial development permit, subject to compliance with the County's critical areas ordinance.²² That ordinance is not part of the County's shoreline master program.²³ There is no indication from this record that the ordinance has ever been part of the County's shoreline master program....