Samson v. City of Bainbridge Island

Citation148 Wn. App. 952,202 P.3d 334
Decision Date24 February 2009
Docket NumberNo. 34780-6-II.,34780-6-II.
PartiesKelly and Sally SAMSON, husband and wife, and Robert and Jo Anne Hacker, husband and wife, Appellants, v. CITY OF BAINBRIDGE ISLAND, State of Washington Department of Ecology, and Central Puget Sound Growth Management Hearings Board, Respondents.
CourtCourt of Appeals of Washington

Dennis Dean Reynolds, Law Office of Dennis D. Reynolds, Bainbridge Island, WA, for Appellants.

Rosemary Anne Larson, Rod Paul Kaseguma, Attorneys at Law, Bellevue, WA, Thomas J. Young, Attorney General's Office, Olympia, WA, for Respondents.

Martha Patricia Lantz, Office of Attorney General Licensing & Administrative Law Division, Olympia, WA, for Other Parties.

BRIDGEWATER, J.

¶ 1 Kelly and Sally Samson and Robert and Joanne Hacker (Samson) appeal the Central Puget Sound Growth Management Hearings Board's (Board) decision to affirm the city of Bainbridge Island's (City) amendment to the City's Shoreline Master Program (SMP), allowing the City to prohibit construction of new single-use private docks and to limit dock construction in Blakely Harbor to two joint-use docks, one community dock, floats, and buoys.

¶ 2 We hold that the Department of Ecology's (Ecology) proposed guidelines, which were not in effect when the City forwarded its amendment to Ecology for review, were not applicable to the City's amendment to its SMP that Ecology examined to confirm compliance with the Shoreline Management Act (SMA). Also, the City's amendment to its SMP prohibiting private docks in this shoreline of statewide significance is consistent with statutory guidelines because it promotes the public's ability to enjoy Blakely Harbor's aesthetic qualities and to navigate its waters. The amendment elevates the public interest over local interest, and preserves the unique character of the harbor. We hold that: (1) private docks in Blakely Harbor are not a preferred use; (2) the amendment is consistent with the City's SMP and Comprehensive Plan; and (3) the amendment does not violate the "public trust" doctrine. To the contrary, it protects the public interest in navigation and recreational use of the harbor. The amendment violates neither due process rights nor equal protection rights by treating this harbor differently from other harbors — the City still allows property owners to use floats and bulkheads, and allows two joint-use docks and a community dock. Finally, the trial court did not err in denying the Samsons' request to supplement the administrative record because the document that Samson hoped to add to the record referenced Ecology's newly adopted guidelines, which are inapplicable here. We affirm.

FACTS

¶ 3 The City adopted its first Shoreline Master Program in 1996. Subsequently, the City studied its four major harbors and adopted a Harbor Management Plan in 1999. Blakely Harbor is one of the City's four harbors, consisting of a coastal inlet on the island's southeast shore. Because a timber company owned most of the land surrounding Blakely Harbor for over a century, Blakely Harbor remains less developed than the rest of the City's harbors. The land surrounding this harbor has only recently become available for subdivision and residential development. With a total of six existing docks or piers, it is the last harbor in Central Puget Sound that remains largely undeveloped.

¶ 4 Blakely Harbor's scenic beauty, unobstructed waters, birds, sea life, and the lack of artificial light at night distinguish it from the City's other harbor areas. As such, it is attractive for transient moorage, kayaks and other handcraft, as well as for scuba diving, swimming, fishing, and other passive public enjoyment. Blakely Harbor is a shoreline of statewide significance as defined in RCW 90.58.030(2)(e)(iii) ("Those areas of Puget Sound and the Strait of Juan de Fuca and adjacent salt waters north to the Canadian line and lying seaward from the line of extreme low tide.").

¶ 5 On February 22, 2002, the City prepared the Blakely Harbor Cumulative Impact Assessment (Assessment) to gauge the impact of likely build-out of piers in the harbor under various scenarios. The Assessment concluded that a predicted build-out of 45 docks would significantly affect navigability of the harbor, reduce scenic vistas, and create risk to natural resources.

¶ 6 Around the same time, the City developed a Nearshore Assessment for all of the City's marine shorelines in response to Puget Sound Chinook salmon being listed under the Endangered Species Act. The City also convened a SMP steering committee to guide its review and update of its SMP. On August 22, 2001, the City adopted Ordinance No. 2001-34, imposing an island-wide moratorium on over-water structures. The City extended this moratorium several times before it allowed the moratorium to expire for all but Blakely Harbor, which it extended until at least 2003. In 2004, we struck down the moratorium for Blakely Harbor dock applications because the SMA did not authorize the City to enact such a moratorium. Biggers v. City of Bainbridge Island, 124 Wash.App. 858, 865-66, 103 P.3d 244 (2004), aff'd, 162 Wash.2d 683, 169 P.3d 14 (2007).

¶ 7 While the Biggers case was pending, the City adopted Ordinance No. 2003-30 (the amendment), amending the City's SMP by limiting dock and pier development within Blakely Harbor. The amendment prohibited single-use docks or piers in Blakely Harbor, continued to allow the use of mooring buoys and floating platforms, and allowed development of two joint-use docks for up to five boats each and one community dock. The City's goal was "to preserve the unique character, navigable waters, natural resources, and scenic beauty of the harbor and promote compatible recreational use of the harbor for the residents of Bainbridge Island and the State." 4 AR Tab 41 at 2737. The City hoped to prevent the "significant cumulative loss of scenic view sheds, navigable waters, and adverse cumulative effects to water and environmental quality likely to be caused by the proliferation of private dock and pier development within Blakely Harbor." 4 AR Tab 41 at 2737.

¶ 8 On September 25, 2003, the City forwarded its amendment to Ecology for approval. By statute, Ecology must base its review on the SMA and "applicable guidelines."1 4 AR Tab 41 at 2737. The Shorelines Hearings Board held Ecology's previous master program approval guidelines invalid in 2001.2 Ecology developed new guidelines that it filed on December 17, 2003. Accordingly, when the City submitted its amendment to Ecology on September 25, 2003, Ecology's new guidelines were not yet in effect. In the absence of applicable guidelines, Ecology reviewed the amendment under the policy of RCW 90.58.020 and the requirements of RCW 90.58.100 before approving the amendment.

¶ 9 On April 23, 2004, Samson filed a petition for review with the Board challenging both the City's amendment and Ecology's approval of it. Following a hearing on the merits, the Board issued its final decision and order upholding the City's amendment.

¶ 10 On February 15, 2005, Samson filed a petition for review under RCW 34.05.010, the Administrative Procedure Act (APA) with the Thurston County Superior Court. On April 17, 2006, the trial court denied Samson's request to supplement the administrative record and affirmed the Board in all respects, dismissing Samson's petition.

¶ 11 Samson appeals.

ANALYSIS
Standard of Review

¶ 12 The APA governs judicial review of challenges to Board actions. Quadrant Corp. v. State Growth Mgmt. Hearings Bd., 154 Wash.2d 224, 233, 110 P.3d 1132 (2005). The party asserting invalidity bears the burden of establishing that invalidity. Quadrant, 154 Wash.2d at 233, 110 P.3d 1132. The APA establishes nine criteria for challenging an agency's orders in adjudicative proceedings. RCW 34.05.570(3). Samson challenges the Board's decision under RCW 34.05.570(3)(a)-(f), (h), and (i).3 We base our review on the record before the Board. Buechel v. State Dep't of Ecology, 125 Wash.2d 196, 202, 884 P.2d 910 (1994). We give due deference to the Board's specialized knowledge and expertise, unless there is a compelling indication that the agency's regulatory interpretation conflicts with the legislature's intent or exceeds the agency's authority. Buechel, 125 Wash.2d at 202-03, 884 P.2d 910; see also Silverstreak, Inc. v. Dep't of Labor & Indus., 159 Wash.2d 868, 884, 154 P.3d 891 (2007).

I. Ecology's Guidelines

¶ 13 Samson claims that the City's amendment is invalid because Ecology failed to consider and apply its own guidelines. RCW 90.58.090(2)(d) requires Ecology to "make written findings and conclusions regarding the consistency of the proposal with the policy of RCW 90.58.020 and the applicable guidelines." (Emphasis added). The Growth Management Act, 36.70A RCW, also requires:

The policies, goals, and provisions of chapter 90.58 RCW and applicable guidelines shall be the sole basis for determining compliance of a shoreline master program with this chapter except as the shoreline master program is required to comply with the internal consistency provisions of RCW 36.70A.070, 36.70A.040(4), 35.63.125, and 35A.63.105.

RCW 36.70A.480(3) (emphasis added). WAC 173-26-171(3)(a) provides in part:

The policy of RCW 90.58.020 and these guidelines constitute standards and criteria to be used by the department in reviewing the adoption and amendment of local master programs under RCW 90.58.090.

¶ 14 Samson claims that Ecology failed to consider its own guidelines as RCW 90.58.090(2)(d) required, instead relying solely on its conclusion that the City's amendment was consistent with the policy of RCW 90.58.020. Samson further alleges that the Board and trial court erred when they determined that neither Ecology's former guidelines nor its new guidelines applied because they were not applicable when Ecology approved the amendment.

¶ 15 It is well-settled law in Washington that public...

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