Tamburello v. Shorelines Hearings Bd.

• Decision Date: 24 January 2023
• Docket Number: 38617-1-III
• Parties: RICHARD and SARAH TAMBURELLO, Appellants, v. SHORELINES HEARINGS BOARD; DEPARTMENT OF ECOLOGY; and YAKIMA COUNTY, WASHINGTON, Respondents.
• Court: Washington Court of Appeals

RICHARD and SARAH TAMBURELLO, Appellants,
v.
SHORELINES HEARINGS BOARD; DEPARTMENT OF ECOLOGY; and YAKIMA COUNTY, WASHINGTON, Respondents.

No. 38617-1-III

Court of Appeals of Washington, Division 3

January 24, 2023

UNPUBLISHED OPINION

PENNELL, J.

Richard and Sarah Tamburello appeal a shoreline violation penalty imposed in relation to the deposit of almost 300 cubic yards of gravel on their property near the Naches River. The penalty was originally imposed by the Department of Ecology and later affirmed in part by the Shorelines Hearings Board (SHB). On appeal to this court, the Tamburellos assert legal and factual errors.

We disagree with the Tamburellos' legal challenges. The SHB correctly determined that Ecology's penalty order was legally valid and that review of the penalty order (as opposed to preceding enforcement orders) did not impair Tamburellos' ability to defend their case or present evidence.

1

As to the factual challenges, substantial evidence supports the SHB's findings that the Tamburellos violated shoreline management regulations. However, we reverse the SHB's final penalty assessment as it failed to fully account for the Tamburellos' mitigating circumstances.

FACTS

Richard and Sarah Tamburello located a piece of property along the Naches River that they wanted to buy to use for camping. The property was undeveloped but included an overgrown access drive and circular parking area for recreational vehicles, which they hoped to improve if they purchased the land. The property is located in an area designated as a floodway and channel migration zone. It is subject to routine flooding events. It had an assessed value of $18,600.

Recognizing the property might be subject to regulation due to its proximity to the river, the Tamburellos sought the advice of Yakima County regarding the improvements they wished to make to the driveway. Unfortunately for the Tamburellos, the County inaccurately informed them there was no necessary permitting for the described work on the property. The parcel was actually subject to the Shoreline Management Act of 1971 (SMA), chapter 90.58 RCW, and the Yakima County Regional Shoreline Master Program (SMP), Title 16D Yakima County Code.

2

The Tamburellos purchased the property in January 2013 and in May they deposited 30 truckloads of gravel on the area they believed to be the driveway and RV parking area. A Washington Department of Fish and Wildlife biologist witnessed the gravel delivery and reported it to Yakima County. The next day the County posted a stop work order on the Tamburellos' driveway, instructing them to obtain a floodplain development permit and shoreline permit. The Tamburellos were surprised by the order and requested a meeting with the County. The County conducted a site visit and took multiple photographs of the Tamburellos' property and maintenance activities.

During 2013 and 2014, the Tamburellos, Yakima County, and the Department of Ecology attempted to resolve their issues. The parties failed to reach an agreement.

In 2015, Ecology issued a notice of correction, advising the Tamburellos they had illegally deposited fill in a floodway, a wetland buffer, and below the ordinary high water mark (OHWM). The notice outlined two pathways for compliance: (1) submission of a no-rise certification and related permits or (2) a restoration plan. The Tamburellos attempted to achieve compliance though submitting a no-rise certification. Ecology refused to issue the certification because it showed a small increase to water surface elevations. The Tamburellos did not attempt the second pathway for compliance.

3

In November 2016, Ecology issued an enforcement order instructing the Tamburellos to cease and desist from all further filling or vegetation removal. It also instructed the Tamburellos to meet a correction condition, requiring a shoreline restoration/mitigation plan that would restore the site to pre-fill conditions. The enforcement order informed the Tamburellos that noncompliance could result in further actions by Ecology, including the issuance of civil penalties of up to $1,000 per day.

Ecology subsequently rescinded the enforcement order in January 2017 based on its belief the order needed to be accompanied with appeal instructions. Ecology then immediately issued an identical order containing appeal instructions.

The Tamburellos appealed the enforcement order to the SHB. The SHB dismissed the appeal for lack of jurisdiction, pointing out that enforcement orders do not carry appeal rights. In other words, there had been no need for Ecology to rescind the original enforcement order. The Tamburellos did not take additional steps to comply with the enforcement order...