Samuel's Furniture, Inc. v. STATE, DEPT. OF ECOL.
| Citation | 147 Wash.2d 440,54 P.3d 1194 |
| Decision Date | 03 October 2002 |
| Docket Number | No. 71181-0.,71181-0. |
| Court | United States State Supreme Court of Washington |
| Parties | SAMUEL'S FURNITURE, INC., Jaffa Holdings, Inc., and City of Ferndale, Petitioners, v. STATE of Washington, Department of Ecology, Respondent. |
Kurt Denke, Seattle, for Petitioners.
Christine Gregoire, Attorney General, Thomas Morrill and Thomas Young, Asst. Attys. Gen., Olympia, for Respondent.
Perkins Coie, Greg Overstreet, Olympia, Timothy Ford, Olympia, amicus curiae, on Behalf of Building Industry Ass'n of Washington.
Timothy Ford, Olympia, amici curiae on Behalf of Nat'l Federation of Independent Business and Washington Ass'n of Realtors.
Langabeer Tull & Lee, Heather Wolf, Bellingham, for City of Ferndale.
Petitioners Samuel's Furniture, Inc., and Jaffa Holdings, Inc. (Samuel's) seek reversal of a Court of Appeals opinion in favor of the Department of Ecology (Ecology). Samuel's contends that Ecology was required to appeal the City of Ferndale's (City) decision to issue fill and grade and building permits and to rescind a stop work order because Samuel's proposed construction project was not within the shoreline jurisdiction of the Shoreline Management Act of 1971 (SMA), chapter 90.58 RCW, under the rules established by the Land Use Petition Act (LUPA), chapter 36.70C RCW. The Court of Appeals held that because Ecology had authority to review local government decisions to enforce the SMA, Ecology was not required to file a LUPA petition in order to challenge the City's decision. We hold that Ecology is required to file a timely LUPA petition in order to challenge a local government's decision to allow a development project when the local government has determined that the project is not within the shoreline jurisdiction.
Pursuant to the SMA, in 1981 the City adopted a Shoreline Master Program (SMP), which included a shoreline jurisdictional map. As required by RCW 90.58.090, Ecology approved the City's SMP, including the jurisdictional map. In 1983, the Federal Emergency Management Agency (FEMA) performed a flood study in connection with the National Flood Insurance Program (NFIP). The study identified a "regulatory floodway" for NFIP purposes. The FEMA regulatory floodway was not adopted for purposes of the City's SMP.
In 1990-91, Samuel's built a furniture store on Main Street in Ferndale. It was not required to obtain a shoreline permit for this construction project. In 1998, Samuel's began the process of building an extension to its store. It consulted with the City to obtain the necessary permits for the project. The City concluded that Samuel's would need a fill and grade permit, which would authorize the placement of fill on the property, and a building permit, to allow the construction of the extension to the store. Relying on the approved SMP map, the City determined that a shoreline permit was not necessary because the proposed construction project was not within the shoreline jurisdiction.
As part of the application process, Samuel's was required to submit a State Environmental Policy Act (SEPA), chapter 43.21C RCW, checklist to the City and Ecology. In answering the questions on the SEPA checklist, Samuel's indicated that the project was in the "immediate vicinity" of the Nooksack River and within the 100-year floodplain of the Nooksack River.1 Ecology did not raise any concerns regarding the project.
In August 1998, the City issued Samuel's a fill and grade permit. Pursuant to the permit, Samuel's placed 14,000 cubic yards of fill on the site in 1998. The City issued Samuel's a building permit in April 1999 and Samuel's began preconstruction demolition.
In early August 1999, Ecology contacted the City after learning about the Samuel's project from a concerned citizen. Relying on the FEMA floodway map, Ecology asserted that the Samuel's project was within the shoreline jurisdiction and that construction could not proceed without obtaining a substantial development permit. After an initial meeting with Ecology, the City issued a stop work order on August 6, 1999. However, after reviewing its SMP and shoreline jurisdictional maps, the City again determined that the project was not within the shoreline jurisdiction. It withdrew the stop work order on August 10, 1999. Ecology did not appeal this decision.
Ecology maintained to Samuel's that the Shorelines Hearings Board (SHB) had held that the Ferndale shoreline jurisdiction was based on the FEMA floodway designation, not on the City's SMP mapping.2 Under this interpretation, Ecology argued that the fill placed on the property was within the 100-year floodplain and the FEMA floodway for the Nooksack River.3 Ecology informed Samuel's that it would be unable to obtain a shoreline substantial development permit because the area at issue would be considered a conservancy shoreline environment. It asserted that this area was undesignated under the City's SMP because the City had erroneously failed to include it within its SMP. Pursuant to SMP 3.15.060(5), an undesignated area is "deemed to carry the designation of that adjoining [shoreline] property having the least intensive use."4 In the case of Samuel's property, the least intensive adjoining property carries a conservancy shoreline designation, which prohibits commercial development, including the placement of fill.
Although the City believed that the project was not within the shoreline jurisdiction, it suggested that Samuel's obtain a letter of map revision (LOMR) from FEMA to remove the portion of Samuel's property at issue from the FEMA floodway designation. Samuel's sought and obtained the LOMR, thus removing the property from the FEMA floodway.5 Ecology subsequently admitted that the FEMA floodway did not by itself establish the shoreline jurisdiction for SMA purposes. Ecology, however, held to its position that a portion of the project was still within the shoreline jurisdiction. It threatened to take enforcement action against Samuel's if the work on the project resumed.
In January 2000, Samuel's filed this declaratory judgment action in superior court, requesting that the court determine whether the site was within the shoreline jurisdiction.6 Samuel's then moved for summary judgment arguing that the project was outside the shoreline jurisdiction and that Ecology was estopped from challenging the City's jurisdictional decision because Ecology had failed to appeal the decision within the 21-day statutory period under LUPA. Ecology filed a cross motion for summary judgment.
After a hearing on the motions, the trial court granted Samuel's motion for summary judgment. The trial court ruled that Ecology had waived its ability to challenge the City's jurisdictional decision by failing to appeal the City's decision to issue either the fill and grade or building permits or to withdraw the stop work order under LUPA. Thus, it held that Ecology was unable to take an enforcement action against Samuel's on that ground. The trial court also found that Ecology was bound by the City's jurisdictional determination under agency principles. The trial court did not decide whether the Samuel's property at issue was within the shoreline jurisdiction. Ecology appealed.
The Court of Appeals, Division One, reversed.7 The court held that LUPA was not applicable in this situation because it only allowed appeals from a land use decision that was a "`final determination by a local jurisdiction's body or officer with the highest level of authority to make the determination.'"8 Because the court concluded that the SMA gave Ecology the authority to review local government decisions pursuant to RCW 90.58.050, a local jurisdiction decision was not final for purposes of LUPA. The court also rejected the trial court's agency ruling, holding that the City's decision was not directed or controlled by Ecology. Finally, the court remanded the issue of whether Samuel's property was within the shoreline jurisdiction to the trial court. This court granted Samuel's petition for review.9
The single issue before this court is whether Ecology is prevented from collaterally attacking the City's determination that the Samuel's project is outside the shoreline jurisdiction because it failed to file a timely LUPA petition challenging the City's decision to issue either the fill and grade or building permits or to withdraw the stop work order.
This case presents the intersection of the SMA and LUPA. The SMA was enacted to protect and manage the shorelines of Washington State to foster all reasonable and appropriate uses, while protecting against adverse effects to public health, land, vegetation, wildlife, and the rights of navigation. RCW 90.58.020. In order to effect its purpose, the SMA is to be construed liberally. RCW 90.56.900.
The SMA creates a cooperative system between local and state governments. RCW 90.58.050. It requires that local governments develop master programs for the regulation and use of their shorelines. RCW 90.58.080. A "master program" is the "comprehensive use plan for a described area, and the use regulations together with maps, diagrams, charts, or other descriptive material and text, a statement of desired goals, and standards developed in accordance with the policies enunciated in RCW 90.58.020." RCW 90.58.030(3)(b). All master programs must be approved by Ecology, RCW 90.58.090, and, once approved, "constitute [the] use regulations for the various shorelines of the state." RCW 90.58.100(1).
No development may occur on a shoreline of the state unless it is consistent with the policy of the SMA and a permit is first obtained. RCW 90.58.140(1), (2). The administration of the permit system "shall be performed exclusively by the local government." RCW 90.58.140(3). Appeals of decisions to grant, deny, or rescind a substantial development permit pursuant to RCW 90.58.140 are heard by the SHB. RCW 90.58.180. However, a...
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...delegated exclusive authority to local governments to administer the permit system. RCW 90.58.050; Samuel's Furniture, Inc. v. Dep't of Ecology, 147 Wash.2d 440, 448, 54 P.3d 1194, 63 P.3d 764 (2002). The lead opinion bases its assertions primarily on the public trust doctrine. Lead opinion......
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Table of Cases
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