Preserve Our Islands v. Shorelines Hearings
| Decision Date | 19 June 2006 |
| Docket Number | No. 55656-8-I.,No. 55655-0-I.,55655-0-I.,55656-8-I. |
| Citation | 137 P.3d 31,133 Wn. App. 503 |
| Court | Washington Court of Appeals |
| Parties | PRESERVE OUR ISLANDS, People for Puget Sound, Washington Environmental Council, King County Department of Development and Environmental Services, Appellants, v. SHORELINES HEARINGS BOARD, Respondent, Northwest Aggregates Company (a/k/a Glacier Northwest), Respondent. |
Michael Joseph Sinsky, Office of the Prosecuting Attorney, Ralph Howard Palumbo, Polly L. McNeil, Summit Law Group, Seattle, WA, for Appellants King County Department of Development and Environmental Services.
David Scott Mann, Michael W. Gendler, Seattle, WA, for Appellants People For Puget Sound, Preserve Our Island, Washington Environmental Council.
William Francis Cronin, Attorney at Law, Stephen Howard Roos, George Kresovich, T. Ryan Durkan, Attorney at Law, Seattle, WA, for Respondent Northwest Aggregates Company.
¶ 1 In these consolidated cases, Preserve Our Islands (POI) and King County (County) appeal the Shorelines Hearings Board's (Board) order requiring the County to issue shoreline substantial development and conditional use permits to Glacier Northwest for its proposed barge-loading facility on Maury Island. The facility will allow Glacier to transport large quantities of sand and gravel off island from its adjacent upland mine. Appellants contend the facility is not water dependent, as required by the King County Shoreline Master Program (Master Program), because the mining operation is the principal use of Glacier's property and it has functioned without barging for many years. They also maintain the facility is inconsistent with shoreline management policies.
¶ 2 But the County has zoned Glacier's site for commercial mining and designated it as mineral resource land under the Growth Management Act without any restrictions on the size of the use. The current principal use of the site is a commercially significant mining operation, regardless of how it was used in the past. Glacier's mine is located on a small island without viable large-scale ground transportation options and cannot operate consistent with its designated principal use without barging. The barge-loading facility is thus an integral part of the principal use, and the entire facility must use the shorelines to operate consistent with its County zoning. The Board correctly concluded the barge-loading facility is water dependent. Substantial evidence supports the Board's conclusion that Glacier's mitigation measures and the Board's conditions make the facility consistent with shoreline management policies. We affirm the Board's order requiring the County to issue Glacier's permits.
¶ 3 Northwest Aggregates Company, a.k.a. Glacier Northwest ("Glacier"), owns a 235-acre sand and gravel mine on the southeast shore of Maury Island.1 The mine is located in the upland portion of the site. The State owns the bedlands. Various owners have mined the site since the 1940s. In 1968, the owner built a barge-loading facility. It consisted of a wooden dock, dolphins for mooring barges, and a conveyer/loading system leading from the upland mine over the beach to the dock. The facility used barges to transport sand and gravel in 1968, 1969, 1971, and 1978. Production peaked in 1978 when the mine produced approximately 2.8 million tons of sand and gravel, primarily for projects around Puget Sound.
¶ 4 Since 1978 the mine has produced between 10,000 and 20,000 tons per year, shipped by truck to sites around Maury Island and adjacent Vashon Island. The barge-loading facility has not been used since 1978 and has fallen into disrepair. Glacier has removed the facility's electrical components, but the owners, including Glacier, have always timely renewed their aquatic lands leases from the Washington State Department of Natural Resources.2
¶ 5 In May 1998, Glacier applied to the County for a shoreline exemption to repair the barge-loading facility in order to resume barging material from the Maury Island mine.3 Glacier initially proposed to immediately replace some of the wood pilings and phase in the rest of the repairs over the next 5 to 15 years. Most of the decking and superstructure was to be replaced because it had deteriorated substantially. Glacier proposed to mine and barge up to 7.5 million tons per year using the renovated facility.4
¶ 6 On August 11, 1998, the County issued a State Environmental Policy Act (SEPA) Determination of Significance requiring Glacier to prepare an Environmental Impact Statement (EIS) for the proposal. On July 21, 1999, the County issued a draft EIS (DEIS).5 On June 27, 2000, it issued the final EIS (FEIS). The FEIS concluded that the project, as proposed, would likely result in significant adverse environmental impacts.6 It recommended several mitigation measures to avoid or minimize adverse impacts or enhance environmental quality. It also concluded that completely replacing the dock was a preferred alternative to repairing it. In response to concerns identified in the FEIS, Glacier modified its proposal several times. After four years, the County denied Glacier's shoreline exemption application because, once the project was revised to accommodate the FEIS recommendations, it could no longer qualify as normal maintenance and repair.
¶ 7 In September 2002, Glacier submitted applications for substantial shoreline development and shoreline conditional use permits to, as the FEIS recommended, replace the entire barge-loading facility: the dock and pilings, trestle, conveyor, and dolphins. The new dock would be open-grated steel with approximately 75 percent open area and would extend farther into the water than the dock repair proposal. The September 2002 proposal also incorporated several other mitigation measures suggested in the FEIS.
¶ 8 Due to the extensive modifications to Glacier's proposal, the County required additional SEPA review to evaluate the project changes and consider additional information from Glacier and the community.7 Glacier and POI submitted large amounts of technical information on the effects of tugboat propeller wash on eelgrass patches around the proposed facility. The County hired a third party consultant to assess the probable significant impacts of propeller wash. Based on the consultant's analysis, the County suggested, and Glacier adopted, several additional mitigation measures to further minimize impacts on eelgrass, including lengthening the dock again. On March 16, 2004, the County issued an addendum to the FEIS (Addendum) stating that Glacier's project, as modified, was unlikely to have significant adverse environmental impacts beyond those identified in the FEIS. It concluded that a Supplemental EIS was not required before the County made a decision on Glacier's permit applications.
¶ 9 That same day, March 16, 2004, the Director of the Department of Development and Environmental Services (DDES) denied Glacier's shoreline permit applications, apparently concluding for the first time since Glacier filed its 1998 application that the proposed barge-loading facility was not water dependent. DDES also ruled that the facility was inconsistent with certain policies of the Master Program and was not a legal nonconforming use. But, confusingly, it also determined that the project is a resource use rather than a prohibited industrial or commercial use.
¶ 10 Glacier appealed the denial to the Board. POI also appealed the resource use determination and adequacy of the FEIS and Addendum. The Board granted summary judgment for Glacier on the water dependency and resource use issues. After an eight-day hearing, the Board reversed DDES's conclusion that the proposed facility was inconsistent with shoreline management policies. Although it concluded the facility was an authorized permitted use, it went on to reverse the Director's ruling that the facility failed to meet the criteria for a legal nonconforming use. The Board concluded the FEIS was adequate and a Supplemental EIS was not required. It ultimately reversed DDES's denial of shoreline development permits and remanded with orders to issue the permits with the Board's conditions. POI and the County appealed to this court.8
¶ 11 POI and the County argue the Board made several errors of law in reversing DDES's determination that Glacier's proposed barge-loading facility fails to satisfy the requirements for shoreline permits. Glacier maintains the Board correctly determined that the facility meets all permit requirements. POI argues separately that the FEIS and Addendum were inadequate and a supplemental EIS is required.
¶ 12 The Shoreline Management Act (SMA), chapter 90.58 RCW, requires each local government to develop a master program for the use of shorelines within its jurisdiction.9 The SMA mandates that shoreline development in Washington be consistent with the policies of the SMA and the local government's master program.10 RCW 90.58.140 requires local governments to establish a program to administer and enforce a permit system for substantial developments within shorelines.11 The Board is the quasi-judicial body which hears all appeals from local government and Department of Ecology decisions made under the SMA or shoreline master plans, including granting, denying, or rescinding shoreline permits.12
¶ 13 The County adopted its Master Program in 1978. The Master Program consists of the King County Shoreline Policies (Shoreline Policies) and King County Shoreline Code, chapter 25.04 KCC, (Shoreline Code). The Master Program limits shoreline use and specifies criteria for issuing development permits within County shorelines. As modified to comply with the FEIS, Glacier's barge-loading facility requires both a shoreline substantial development permit and a shoreline conditional use permit.13 Under the Master...
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