State of Washing, Dep't of Ecology v. City of Spokane Valley

• Decision Date: 03 May 2012
• Docket Number: No. 29675–0–III.,29675–0–III.
• Court: Washington Court of Appeals
• Parties: STATE of Washington, DEPARTMENT OF ECOLOGY, Appellant, v. The CITY OF SPOKANE VALLEY and Coyote Rock, LLC, Respondents.State of Washington, Department of Ecology, Appellant,Spokane Riverkeeper, Spokane Falls Chapter of Trout Unlimited, and The Lands Council, Plaintiffs, v. City of Spokane Valley and Coyote Rock, LLC, Respondents.

275 P.3d 367

STATE of Washington, DEPARTMENT OF ECOLOGY, Appellant,

v.The CITY OF SPOKANE VALLEY and Coyote Rock, LLC, Respondents.State of Washington, Department of Ecology, Appellant,Spokane Riverkeeper, Spokane Falls Chapter of Trout Unlimited, and The Lands Council, Plaintiffs,

v.City of Spokane Valley and Coyote Rock, LLC, Respondents.

No. 29675–0–III.

Court of Appeals of Washington, Division 3.

May 3, 2012.

Thomas J. Young, Laura J. Watson, Attorney General's Office, Ecology Division, Olympia, WA, for Appellant.

Michael F. Connelly, Koegen Edwards LLP, Spokane, WA, Cary P. Driskell, City Attorneys Office, Spokane Valley, WA, John Francis Magnuson, Attorney at Law, Coeur D. Alene, ID, for Respondents.

SIDDOWAY, J.

¶ 1 Since its adoption by voters 40 years ago,¹ the Shoreline Management Act of 1971(SMA), chapter 90.58 RCW, has provided that no development may be undertaken on Washington shorelines unless consistent with the policy of the SMA and any local shoreline master program. RCW 90.58.140(1). The requirement is effectuated by requiring that anyone undertaking a substantial development on the shoreline first obtain a permit from the appropriate local jurisdiction. RCW 90.58.140(2). The definition of “substantial development” is subject to a dozen exceptions, one being “[c]onstruction of a dock ... designed for pleasure craft only, for the private noncommercial use of the owner, lessee, or contract purchaser of single and multiple family residences” having a value, in the case of a freshwater dock, of less than ten thousand dollars. RCW 90.58.030(3)(e)(vii).

¶ 2 In this case we are called upon to decide whether the developer of 30 residential waterfront lots in the city of Spokane Valley is entitled to rely on this owner-noncommercial use exemption to construct docks appurtenant to the spec (speculative) homes it builds for resale and, if it is entitled to rely on the exemption, whether the city violated SMA policies by exempting two docks without imposing conditions to protect against the cumulative effects of a potential 30 docks. We find the first issue to be dispositive and hold that the statutory exemption applies only when the owner, lessee, or contract purchaser requests the permit in order to undertake construction for its own noncommercial use. We reverse the superior court's order denying Ecology's land use petitions.

FACTS AND PROCEDURAL BACKGROUND

¶ 3 Coyote Rock Acres is a residential subdivision located alongside the Spokane River in the city of Spokane Valley platted to include 30 waterfront lots. The developer of the subdivision, to whom we will refer as Coyote Rock, ² triggered the city's first review of shoreline issues when it applied for a permit to grade most of the site for future development. Its environmental checklist and plans submitted under the State Environmental Protection Act (SEPA), chapter 43.21C RCW, proposed a 50–foot shoreline setback for the grading project that the Washington State Department of Fish and Wildlife (Fish & Wildlife) objected to as inadequate because the river and adjacent riparian area were very sensitive to disturbance.³ After considering comments, the city issued a mitigated determination of nonsignificance for the grading and rehabilitation project requiring that Coyote Rock observe a 75–foot riparian setback from the ordinary high-water mark. The Washington State Department of Ecology endorsed the idea of increasing the setback to 75 feet and expressed its view that “[i]n order to be effective, [the] buffer must be absolutely undisturbed and undeveloped.” Clerk's Papers (CP) at 221.

¶ 4 After consulting with Ecology, the city notified Coyote Rock that a shoreline substantial development permit would also be required for the portion of the grading work that would be performed within the shoreline area. Coyote Rock submitted an application for the permit and other environmental approvals in the form of a joint aquatic resources permit application (JARPA). The JARPA was considered by a hearing examiner, who approved the application in part, subject to revised conditions. In substantially approving the application, the hearing examiner concluded that a permanent 75–foot shoreline setback for the project and compliance with a habitat management plan prepared by Coyote Rock's consulting wildlife biologist would adequately mitigate impacts of the project on key habitat along or near the river. Among conditions imposed by the approval were that the required 75–foot shoreline setback be permanently marked on the ground and that title notices be filed with the county auditor to provide notice of the setback to future owners. The decision also conditioned approval on a requirement that any property owner in the Coyote Rock development wishing to install a dock along the Spokane River meet with the city's community development department, Ecology, and Fish & Wildlife before applying for approval, stating, “The intent of this condition is to reduce the number and impacts of docks along this reach of the shoreline. Only minimal low impact access ways and docks will be approved.” CP at 134.

¶ 5 Two years later, in anticipation of constructing its first dock on the Spokane River adjacent to a spec home it was constructing on lot 23, Coyote Rock obtained further guidance from city planners on the federal, state, and local requirements. Among the requirements identified by the city were its shoreline master program, which required that Coyote Rock apply for a substantial development permit or demonstrate that it was exempt from the permit requirement, and SEPA, compliance with which was initiated by completing an environmental checklist.

¶ 6 The city's shoreline master program map designates the shoreline area at Coyote Rock and neighboring land located along the south side of the Spokane River as Pastoral. Within areas designated by the city as Pastoral, docks are allowed only if statutorily-exempt from the shoreline substantial development permitting requirement under RCW 90.58.030(3)(e)(vii). But other provisions of the master program provide that areas within subdivisions or plats that received preliminary approval by December 31, 1974 shall be designated Rural (the second least restrictive area classification) notwithstanding their designation on the master program map, unless designated Urban (an even less-restrictive classification). A large portion of the Coyote Rock property was originally platted in 1908 and is therefore deemed Rural. The master program permits docks in the Rural area for recreational, educational, or other public purposes, with shared or community docks being preferred over individual docks for the sole use of a property owner.

¶ 7 The city circulated Coyote Rock's environmental checklist to Fish & Wildlife and Ecology, asking for comments. Fish & Wildlife responded with a request that detailed plans be provided on whatever walkways, staircases, or graveled ramps were planned to provide access from the home to the dock. Ecology submitted no formal comment by the city's requested deadline, but later sent an informal communication that piers were prohibited under the city's master program, that joint use docks are preferred, and that at a minimum joint use access should be required to limit impacts.

¶ 8 Coyote Rock obtained the permits and approvals required to construct the dock, including a letter of exemption from the city excusing it from the requirement to obtain a substantial development permit on the basis that it was currently the owner of the single family residence associated with the proposed dock, whose estimated cost was under $10,000.⁴ The letter of exemption reiterated, as a condition of approval, the 75–foot shoreline setback requirement to which Coyote Rock was already subject, requiring that no disturbance in the 75–foot shoreline setback could occur without the approval of the city's planning division, Ecology, and Fish & Wildlife, and that

[d]etail plans shall be submitted showing the development in the seventy-five (75) foot wide shoreline setback. This also includes any proposed access from the area of the residence to the dock access.CP at 10. Plans later filed by Coyote Rock contemplated that a trail may be built from each house to the river.

¶ 9 Several months after it submitted materials in support of approval for construction of a dock for lot 23, Coyote Rock filed materials in support of approval for construction of a second spec dock adjacent to lot 9. This time, Ecology timely submitted comments in response to the SEPA checklist. It contended that a spec dock is not designed for the private noncommercial use of the owner, lessee, or contract purchaser of a single or multiple family residence within the meaning of the statutory exemption, stating:

The application submitted and conversations with the developer and home builder make it perfectly clear that this is a spec home and a spec dock. It has not been purchased for the private use of an owner as of yet.

... [U]ntil the residence is purchased, no docks can be constructed along this reach of the river. After the spec home is sold and the new owner decides they would like a dock, application could be made.

CP at 22. Asserting that Coyote Rock had already constructed an “illegal” dock,⁵ Ecology elaborated on its concern:

As can be seen by the existing illegal dock, the real impact from docks in this location is in developing access through the shoreline buffer to access the dock. We believe that the intent, goals and use policies of the [shoreline master program] will require limiting access and the destruction to the riparian corridor inherent in developing that access, through the use of joint access and docks. The cumulative effects of locating 30 individual docks and access on this reach of river will result in complete degradation of the shoreline and should be reviewed and quantified prior to any dock authorization.Id.

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