Twin Bridge Marine Park v. Dept. of Ecology

• Decision Date: 12 December 2005
• Docket Number: No. 54277-0-I.,54277-0-I.
• Citation: 125 P.3d 155,130 Wn. App. 730
• Court: Washington Supreme Court
• Parties: TWIN BRIDGE MARINE PARK, L.L.C., and Ken Youngsman (Ken Youngsman And Associates), Respondent, v. WASHINGTON STATE, DEPARTMENT OF ECOLOGY, Appellant.

125 P.3d 155

130 Wn. App. 730

TWIN BRIDGE MARINE PARK, L.L.C., and Ken Youngsman (Ken Youngsman And Associates), Respondent, v. WASHINGTON STATE, DEPARTMENT OF ECOLOGY, Appellant.

No. 54277-0-I.

Court of Appeals of Washington, Division 1.

December 12, 2005.

Craig D. Magnusson, J. Todd Henry, Oles Morrison Rinker & Baker LLP, Seattle, for Respondent.

Thomas J. Young, Asst. Atty General, Olympia, for Appellant.

COLEMAN, J.

¶ 1 The Department of Ecology appeals a Superior Court order dismissing penalties imposed by Ecology on Twin Bridge Marine Park. Ecology argues on appeal that the Shoreline Management Act (SMA) grants Ecology broad authority to enforce the SMA, including the authority to impose penalties for shoreline development that violates the SMA. Ecology further argues that Twin Bridge constructed a marina without a necessary shoreline permit, that existing shoreline permits did not authorize its activities, that the development violated the SMA, and that building permits issued by Skagit County for the development do not bar Ecology's enforcement actions. We affirm.

¶ 2 When Skagit County issued and later reinstated the building permits for Twin Bridge, it necessarily determined that the marina project was consistent with the existing shoreline permits and that the project did not require another shoreline permit. Under the reasoning of our Supreme Court's decision in Samuel's Furniture, Inc. v. Dep't of Ecology, 147 Wash.2d 440, 54 P.3d 1194 (2002), amended on denial of reconsideration by 63 P.3d 764 (2003), Ecology was required to appeal Skagit County's determination through a Land Use Petition Act (LUPA) challenge in order to establish its jurisdiction to impose penalties on Twin Bridge. In addition, the resumption of construction work by Twin Bridge before its acquisition of a shoreline permit did not violate a stipulation and agreed order of dismissal between Twin Bridge and Ecology, as the language of the stipulation and agreed order did not require Twin Bridge to obtain a shoreline permit before resuming work.

FACTS

¶ 3 Twin Bridge owns a triangular piece of property in Skagit County near Swinomish Channel. Ken Youngsman, Twin Bridge's predecessor in interest, bought the land in the 1970s with plans to develop the property as a base of operations for his marine construction and dredging business. The development called for mooring dredges, dredge tenders, and other vessels used in the business in a moorage basin, and storing materials and equipment on the upland portions of the site. Youngsman also planned for two buildings: an office building of less than 1,000 square feet, and one repair/storage building of approximately 4,000 square feet. An environmental review was conducted of Youngsman's proposed actions on the site in a 1975 Final Environmental Impact Statement (FEIS).

¶ 4 Youngsman obtained two shoreline substantial development/conditional use permits from Skagit County. Permit 7-82 allowed for the "placement of about 90,000 yards of landfill, construction and operation of a marine dredging and construction business and the storage of construction materials and equipment." Ecology wrote to Skagit County and Youngsman to say,

It is our understanding that this permit only authorizes 90,000 cubic yards of fill to be placed on site and subsequent use of the site for the operation of a marine construction and dredging business to include storage of materials and equipment. Any other substantial development on the site such as buildings, shore structures, hard surfacing, and drainage improvements will be submitted as a new permit or a revision to this permit pursuant to WAC 173-14-064.[¹]

Youngsman later obtained a revision to one of the two permits.

¶ 5 Youngsman made plans for a more ambitious development of his property as a marina. The development would consist of a dry-stack storage facility with a capacity of about 350 recreational boats, a reinforced concrete pad for lowering boats into the lagoon, a second building for office and retail operations, a large forklift for moving boats from the storage building to the lagoon and for lowering boats from the reinforced concrete pad, boat washing facilities, septic pump-out equipment, fuel dispensing, and paving and drainage improvements. Skagit County issued a Final Environmental Impact Statement Addendum modifying the 1975 FEIS and determining that the "revision is `insignificant' and does not have a probable significant adverse impact on the environment." The county also issued two amended building permits for the project.² The first building permit allowed for the construction of a building approximately 58,000 square feet in size. Ecology did not receive official notice of the building permits but learned informally of them. The City of Anacortes appealed the issuance of the building permits under LUPA, but Ecology did not.

¶ 6 When construction under the building permits began, Ecology issued a notice of correction to Twin Bridge. The notice requested Twin Bridge to stop work at the site and obtain a new shoreline permit for use of the site as a marina and for the structures and site work placed within the shoreline. Twin Bridge did not stop work, and Ecology issued its first administrative order and penalty. The order required Twin Bridge to stop work, obtain a new shoreline permit, and pay a penalty of $17,000. Twin Bridge appealed to the Shoreline Hearings Board. At about the same time, the Skagit County hearing examiner suspended the two building permits on the ground that the project required a new shoreline substantial development/conditional use permit. Twin Bridge stopped work, with exceptions for safety reasons. Twin Bridge applied under protest for a new shoreline permit authorizing use of the site as a marina with buildings with related improvements. Ecology and Twin Bridge reached a settlement agreement. The agreement provided:

1. Ecology hereby withdraws its Penalty Order No. 00SEANR-1209 issued to Ken Youngsman on or about June 21, 2000, subject to the following conditions:

a. Mr. Youngsman shall continue to pursue in good faith his application for a new Shoreline Substantial Development Permit for the Twin Bridge Marine Park.

b. In the event that Skagit County issues a Substantial Development Permit to Mr. Youngsman or his associates, Ecology reserves the right to appeal the permit to the Shorelines Hearings Board and to raise any issue therein.

c. Mr. Youngsman, his associates, and contractors shall not resume work on the site until all required federal, state, and local permits have been obtained.

2. Mr. Youngsman hereby dismisses his appeal in this matter.

¶ 7 Twin Bridge reached a separate agreement with Skagit County and the City of Anacortes, and Skagit County gave approval to Twin Bridge to continue the work authorized under the two building permits. Skagit County sent a copy of the agreement to Ecology. Ecology did not file a LUPA petition appealing the reinstatement of the building permits. Twin Bridge resumed construction on the site. Skagit County had not finished processing Twin Bridge's application for a new shoreline permit. Ecology issued a second administrative order and penalty requiring Twin Bridge to stop work, reinstated the earlier penalty of $17,000, and added another $17,000 penalty. Twin Bridge completed construction of the two buildings. It received approval for occupancy from Skagit County and opened for business as a marina. Ecology issued its third order and notice of penalty, assessing an additional penalty of $25,000 and ordering Twin Bridge to cease construction and operations until shoreline permits authorizing the construction and use were obtained. Twin Bridge appealed the second and third orders and notices of penalty to the Shorelines Hearings Board.

¶ 8 The Board found that the reinforced concrete pad, several boat washing areas, utility lines, a septic tank, an oil-water separator, asphalt parking spaces and much of the paving were located within 200 feet of the moorage basin. The Board also found that improvements outside the 200-foot zone, including the boat storage building and a building for offices and retail/repair operations, gas tanks, a bioswale system, and several septic tanks were directly linked to construction within the 200-foot zone. The Board additionally made this finding of fact: "Skagit County apparently concluded the existing CUP 7-82 covered the shoreline aspects of the project since Mr. Youngsman was not required to obtain a revision or seek a new shoreline substantial development permit or conditional use permit."

¶ 9 The Board ruled that many of the improvements within 200 feet of the moorage lagoon were substantial developments under the SMA, were not authorized by the substantial development/conditional use permits, and were undertaken without a required shoreline permit in violation of RCW 90.58.140. The Board further ruled that the improvements inside and outside the 200-foot zone constituted a single integrated project and that Twin Bridge should have obtained a shoreline permit for the shoreline portions of the project before constructing the upland components of the design. The Board additionally ruled that Twin Bridge violated its settlement agreement with Ecology when it resumed development without acquiring a new shoreline permit. Furthermore, the Board ruled that Ecology's decision not to appeal the building permits under LUPA did not prohibit Ecology from issuing a shoreline enforcement order for Twin Bridge's construction and operation of the marina.³ The Board finally ruled that Ecology had consistently taken the position that the marina required new shoreline permits, and that reliance on Skagit County's building permits did not give rise to relief for Twin Bridge. The Board affirmed Ecology's orders and notices of penalty for a total penalty of $59,000.

¶ 10 The Washington Supreme Court issued its decision in Samuel's...