Twin Bridge Marine Park v. State

• Decision Date: 24 January 2008
• Docket Number: No. 78462-1.
• Citation: Twin Bridge Marine Park v. State, 175 P.3d 1050, 162 Wn.2d 825 (Wash. 2008)
• Parties: TWIN BRIDGE MARINE PARK, L.L.C., and Ken Youngsman (Ken Youngsman and Associates), Respondents, v. STATE of Washington, DEPARTMENT OF ECOLOGY, Petitioner.
• Court: Washington Supreme Court

175 P.3d 1050

162 Wn.2d 825

TWIN BRIDGE MARINE PARK, L.L.C., and Ken Youngsman (Ken Youngsman and Associates), Respondents, v. STATE of Washington, DEPARTMENT OF ECOLOGY, Petitioner.

No. 78462-1.

Supreme Court of Washington, En Banc.

Argued March 22, 2007.

Decided January 24, 2008.

Thomas J. Young, Attorney General's Office, Ecology Division, Jay Douglas Geck, Office of the Attorney General, Olympia, WA, for Petitioner.

Craig Douglas Magnusson, Magnusson Law Office PS, Bellevue, WA, John Todd Henry, Oles Morrison Rinker & Baker LLP, Seattle, WA, for Respondents.

Kristopher Ian Tefft, Association of Washington Business, Olympia, WA, Amicus Curiae on behalf of Association of Washington Business.

Timothy M. Harris, Andrew C. Cook, Julie M. Sund, Building Industry Association of Washington, Olympia, WA, Amicus Curiae on behalf of Building Industry Association of Washington.

J.M. JOHNSON, J.

¶ 1 While this case involves a protracted dispute between the parties, Department of Ecology and Twin Bridge Marina, the greater underlying issue is a dispute over regulatory authority between Ecology and Skagit County (County). Twin Bridge is a drystorage marina that has been properly permitted by local, state, and federal agencies after years of litigation. At argument, Ecology conceded there were no continuing environmental concerns. However, development of Twin Bridge's property has exacerbated interpretive differences between these two powerful and competing governmental entities. The Shoreline Management Act of 1971 (SMA), chapter 90.58 RCW, defines state and local authority to regulate. When disagreements over property development arise between these two entities that exercise regulatory powers under the SMA, private citizens must not be forced to choose between conflicting edicts.

¶ 2 Where Ecology has reasonable notice of a final land use decision by the local permitting authority, it must pursue collateral attack of that decision through the Land Use Petition Act (LUPA), chapter 36.70C RCW. This is a well established principle of Washington law that gives closure and clarity to private property owners who wish to develop their land and to interested citizens. In the current case, Ecology's disagreement with the County over county permits cannot be visited on Twin Bridge, which properly relied on the County's final land use decision. Ecology had sufficient notice to resolve any dispute with the County in court, including an actual challenge filed by Anacortes under LUPA, but chose not to participate. We affirm both the trial court and the Court of Appeals.

FACTS¹

¶ 3 Twin Bridge owns an 11 acre piece of property in Skagit County near the Swinomish Channel. In 1975, the County approved a final environmental impact statement (FE IS) for a proposal to build a 960 square foot office and 4,000 square foot warehouse on the property, which would have included marine facilities. Administrative Record (AR) Ex. R-1. In 1982, Twin Bridge obtained two shoreline substantial development permits from the County. There has been much confusion at the Shorelines Hearings Board (Board) and trial court level regarding the correct characterization of these two permits. Clerk's Papers (CP) at 172, 192 (permits are titled as "shoreline substantial development/conditional use"). We accept the superior court and Court of Appeals determination that the primary nature of the permits was substantial development.²

¶ 4 Permit 7-82 (AR Ex. R-3) allowed for the placement of approximately 90,000 yards of landfill on the site. Permit 15-86 (AR Ex. R-6) allowed for the hydraulic dredging of approximately 40,000 yards of material.

¶ 5 Twin Bridge decided to convert the business into a dry-storage marina facility. The proposed facility was a dry-stack marina with a 350 boat uplands storage capacity, including buildings, a reinforced concrete pad, and a large forklift for moving boats from the water to the storage area. The County issued a FEIS addendum in 2000, modifying the 1975 FEIS, and determined the revised dry-land marina development was "insignificant and does not have a probable significant adverse impact on the environment." AR Ex. R-40. The County then issued two amended building permits for the project, one of which allowed for a building approximately 58,000 square feet. The city of Anacortes appealed the County's issuance of building permits under LUPA, but Ecology did not intervene or join the appeal, even though it had notice of the development and challenge.³

¶ 6 When construction began pursuant to the permits, Ecology issued a stop work order and ordered Twin Bridge to obtain a new substantial development shoreline permit. Twin Bridge did not stop work, and Ecology issued a $17,000 penalty. Twin Bridge appealed to the Board. At approximately the same time, the Skagit County hearing examiner suspended the two amended building permits on the grounds the County had reevaluated the project and decided to require a new substantial development permit. Twin Bridge then stopped work at the site.

¶ 7 Twin Bridge applied to the County for a new shoreline substantial development permit, which authorized the site as a marina with the related improvements. Ecology and Twin Bridge reached a settlement whereby Ecology withdrew the penalty.⁴ Twin Bridge also reached a separate agreement with Skagit County and with the city of Anacortes in the LUPA challenge. The County, upon the resolution of these outstanding concerns, reinstated the two suspended building permits. The County then sent a copy of this agreement reinstating permits to Ecology, which did not respond. Ecology did not file a LUPA petition or otherwise appeal, the reinstatement of the building permits.

¶ 8 Twin Bridge resumed construction at the site. As agreed, the County also processed Twin Bridge's application for the new shoreline development permit for construction authorized in the reinstated building permits. The final shoreline permit that resulted incorporated local, state, and federal permits for the site. However, Ecology refused to recognize the county permits, issued a second penalty of $17,000, and reinstated the earlier penalty of $17,000, for a total of $34,000 in penalties.

¶ 9 Twin Bridge completed construction on the marina pursuant to the County-issued building permits, received approval for its occupancy and operation from the County, and opened for business. Ecology then issued a third penalty against Twin Bridge for $25,000 and ordered the marina to cease and desist all operations until a new shoreline permit authorizing use and construction of the marina was obtained. Twin Bridge appealed the penalties to the Board. As noted above, Ecology no longer argues to cease operation or that there is any current violation of any environmental law or regulation.

PROCEDURAL HISTORY

¶ 10 The Board held that Twin Bridge's marina constituted a new substantial development under the SMA, which required a new shoreline permit under RCW 90.58.140. This disregards the County-issued building permits, county environmental impact statement (EIS) surveys and prior substantial development permits. The Board ruled that both the upland and shoreline components of the marina fell under the SMA. Additionally, the Board ruled that Twin Bridge violated its settlement with Ecology by completing construction pending approval. The Board found that Ecology's failure to initiate a

LUPA appeal (or join in the pending appeal) did not preclude penalties. Finally the Board found that Twin Bridge's reliance on the County's preexisting permits and subsequent building permits did not relieve its obligation to pay a total of $59,000 in penalties (two $17,000 penalties and the last $25,000 imposed postcompletion). See Pet. for Review, App. B.

¶ 11 Twin Bridge appealed the Board's decision to the superior court, which reversed the Board in its entirety. First, the superior court issued findings of fact and conclusions of law after it considered additional, evidence, which included the 2003 County-issued substantial development permit. The court found that the preexisting permits were primarily substantial development permits. See CP at 428, Finding of Fact (FF) 5. The court found that the County's issuance of the subsequent building permits and the new FEIS addendum amounted to county authorization for Twin Bridge's construction of the marina.⁵

¶ 12 Additionally, the superior court held that Twin Bridge did not require any additional Ecology permit because the County's issuance of building permits necessarily included a determination that the project was already in compliance with the SMA (pursuant to the preexisting permits).⁶ Finally, the court held that Ecology could not penalize projects with valid county permits without first filing a LUPA challenge. Thus, the direct imposition of penalties in this case was an invalid collateral attack on the County's decision. The Washington Court of Appeals affirmed the superior court ruling, relying largely on this court's intervening Samuel's Furniture, Inc. v. Department of Ecology, 147 Wash.2d 440, 54 P.3d 1194 (2002) case. We granted review. Twin Bridge Marine Park, LLC v. Ecology, 158 Wash.2d 1029, 152 P.3d 1033 (2007).

STANDARD OF REVIEW

¶ 13 The Administrative Procedure Act, chapter 34.05 RCW, governs judicial review of board decisions. See RCW 90.58.180(3). Additionally,

[I]n reviewing adjudicative proceedings, review by an appellate court is to be on the agency record without consideration of the findings and conclusions of the superior court. The one exception is in regard to matters where the superior court takes additional evidence⁷ under RCW 34.05.562 .... In such instances, where the information needed for review is contained in the superior court record of proceedings, not the agency record, the appellate tribunal will look to the superior court record.

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