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SandBar 7:2, July, 2008 Department Lacked Authority to Regulate under State's Shoreline Management Act Twin Bridge Marine Park, LLC v. Dep’t of Ecology, 162 Wn.2d 825 (Wash. 2008). Terra Bowling, J.D. The issue of regulatory authority over coastal development permits in Washington State came to a head over the construction of a dry-storage marina. The Supreme Court of Washington ruled that local governments have the exclusive authority to approve substantial development permits (SDP). Furthermore, the only recourse for the State Department of Ecology to challenge an SDP is through the Washington Land Use Petition Act (LUPA) . Background The Washington State Shoreline Management Act (SMA) regulates development on state shorelines. Under the SMA, local governments must develop shoreline management plans (SMP) that are approved by the Department. The counties then have the primary responsibility for administering the permit program and ensuring compliance with their SMPs. In 1975, Skagit County, Washington approved a final environmental impact statement (FEIS) for Twin Bridge Marine Park, LLC, to construct an office, a warehouse, and marine facilities on its property. In 1982, the county issued two shoreline SDPs to Twin Bridge for the development. The company later decided to convert its business into a dry-storage marina, and, in 2000, the county issued an FEIS addendum to the 1975 FEIS, determining that the dry-land marina development would not have a significant adverse impact on the environment. The county issued two amended building permits for the project. The city of Anacortes appealed the permits under LUPA, but the Department did not join in the appeal. After Twin Bridge began construction, the Department issued a stop work order and ordered the company to obtain a new substantial development shoreline permit. When the company did not stop construction, the Department issued a $17,000 penalty. The company appealed the decision to the Shorelines Hearings Board (Board). Skagit County subsequently reevaluated the project and decided to require new SDPs and suspended the amended building permits. Twin Bridge stopped work on the project. After applying to the county for new permits, the company reached a settlement agreement in which the Department withdrew its penalty. The company also reached a separate agreement with the county and Anacortes with regard to the LUPA challenge. The county then reinstated the building permits and Twin Bridge resumed construction. The county issued a final shoreline permit incorporating local, state, and federal permits for the site. The Department refused to recognize the permits, reinstated the penalty of $17,000 and tacked on an additional $17,000 penalty. Despite this,Twin Bridge completed construction and opened for business. The Department then issued a third, $25,000 penalty. Twin Bridge appealed the penalties to the Board, which upheld the penalties. On appeal, the superior court reversed the Board’s decision, finding that the county’s issuance of the building permits and the FEIS addendum resulted in county authorization for the project. Furthermore, an additional permit from the Department was not necessary, since the county had concluded that the project was in compliance with the Shoreline Management Act (SMA). And, finally, the Department could not penalize projects with valid county permits without first filing a LUPA challenge. In effect, the Department’s issuance of penalties resulted in an invalid collateral attack on the county’s decision. The Washington Court of Appeals affirmed the ruling. The Department appealed the decision to the Washington State Supreme Court. The key issue considered on appeal was whether the Department could impose penalties under the SMA when the project had been constructed pursuant to valid county permits. Authority under the SMA First, the court noted that the SMA does not give the Department the authority to directly review a local government’s decision to issue an SDP. However, the Department may review other permits under the SMA, such as a conditional use permit. The Department argued that the dry-land marina exceeded the impact foreseen by the original permits, and, thus, the county wrongly concluded that SDPs were the appropriate permits. The court disagreed, finding that “it is counterintuitive that a dry-storage facility would have more shoreline impact than a water marina.” Additionally, because the county had two EISs it had the best available information for determining the appropriate permit. For those reasons, the court found that the county’s characterization of the permits would control. Next, the court turned to the issue of whether the Department had the authority to impose penalties on Twin Bridge. The Department cited provisions of the SMA that allow it to impose fines on those who develop in shoreline areas without the proper permits. The court noted that the company had constructed the marina only after reaching an agreement with the Department that it would apply for a new SDP and then obtaining those permits. In this instance, the court found that Twin Bridge had obtained all of the necessary permits, and the Department could not impose penalties on the company. LUPA The court turned to the Department’s regulatory authority over local governments regarding shoreline development. Relying on an analogous case, Samuel’s Furniture v. Department of Ecology,1 the court noted that under the SMA, a local government and not the Department makes the threshold determination of what shoreline SDPs are required under the county’s SMP. In Samuel’s Furniture, the court had determined that LUPA provided the appropriate means for entities challenging a final land use decision by a local authority. The court found that the Department was required to comply with LUPA in this instance as well, given that this was a final land use decision issued by a local authority, Skagit County. LUPA stipulates that no “person” – including entities like the Department – is exempt from its provisions when challenging a final land use decision by a local authority with jurisdiction. LUPA requires those opposing a final land use decision to appeal that decision within twenty-one days. In this instance, the Department had notice of the county’s decision and did not appeal. After twenty-one days elapsed, the permits were valid and Twin Bridge correctly relied on them. Conclusion The court concluded that the disagreement with the local permitting authority should have been resolved through LUPA and not through penalties assessed on Twin Bridge.2 The court affirmed the lower courts’ decisions and dismissed the Department’s fines and orders Endnotes 1. 147 Wn.2d 440 (Wash. 2002). 2. Twin Bridge Marine Park, LLC v. Dep’t of Ecology, 162 Wn.2d 825, 847 (Wash. 2008).
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SandBar 7:2, July, 2008

Department Lacked Authority to Regulate under State's Shoreline Management Act

Twin Bridge Marine Park, LLC v. Dep’t of Ecology, 162 Wn.2d 825 (Wash. 2008).

Terra Bowling, J.D.

The issue of regulatory authority over coastal development permits in Washington State came to a head over the construction of a dry-storage marina. The Supreme Court of Washington ruled that local governments have the exclusive authority to approve substantial development permits (SDP). Furthermore, the only recourse for the State Department of Ecology to challenge an SDP is through the Washington Land Use Petition Act (LUPA)
.

Background

The Washington State Shoreline Management Act (SMA) regulates development on state shorelines. Under the SMA, local governments must develop shoreline management plans (SMP) that are approved by the Department. The counties then have the primary responsibility for administering the permit program and ensuring compliance with their SMPs.

In 1975, Skagit County, Washington approved a final environmental impact statement (FEIS) for Twin Bridge Marine Park, LLC, to construct an office, a warehouse, and marine facilities on its property. In 1982, the county issued two shoreline SDPs to Twin Bridge for the development. The company later decided to convert its business into a dry-storage marina, and, in 2000, the county issued an FEIS addendum to the 1975 FEIS, determining that the dry-land marina development would not have a significant adverse impact on the environment. The county issued two amended building permits for the project. The city of Anacortes appealed the permits under LUPA, but the Department did not join in the appeal.

After Twin Bridge began construction, the Department issued a stop work order and ordered the company to obtain a new substantial development shoreline permit. When the company did not stop construction, the Department issued a $17,000 penalty. The company appealed the decision to the Shorelines Hearings Board (Board). Skagit County subsequently reevaluated the project and decided to require new SDPs and suspended the amended building permits. Twin Bridge stopped work on the project.

After applying to the county for new permits, the company reached a settlement agreement in which the Department withdrew its penalty. The company also reached a separate agreement with the county and Anacortes with regard to the LUPA challenge. The county then reinstated the building permits and Twin Bridge resumed construction. The county issued a final shoreline permit incorporating local, state, and federal permits for the site. The Department refused to recognize the permits, reinstated the penalty of $17,000 and tacked on an additional $17,000 penalty. Despite this,Twin Bridge completed construction and opened for business. The Department then issued a third, $25,000 penalty. Twin Bridge appealed the penalties to the Board, which upheld the penalties.

On appeal, the superior court reversed the Board’s decision, finding that the county’s issuance of the building permits and the FEIS addendum resulted in county authorization for the project. Furthermore, an additional permit from the Department was not necessary, since the county had concluded that the project was in compliance with the Shoreline Management Act (SMA). And, finally, the Department could not penalize projects with valid county permits without first filing a LUPA challenge. In effect, the Department’s issuance of penalties resulted in an invalid collateral attack on the county’s decision.

The Washington Court of Appeals affirmed the ruling. The Department appealed the decision to the Washington State Supreme Court. The key issue considered on appeal was whether the Department could impose penalties under the SMA when the project had been constructed pursuant to valid county permits.

Authority under the SMA

First, the court noted that the SMA does not give the Department the authority to directly review a local government’s decision to issue an SDP. However, the Department may review other permits under the SMA, such as a conditional use permit. The Department argued that the dry-land marina exceeded the impact foreseen by the original permits, and, thus, the county wrongly concluded that SDPs were the appropriate permits. The court disagreed, finding that “it is counterintuitive that a dry-storage facility would have more shoreline impact than a water marina.” Additionally, because the county had two EISs it had the best available information for determining the appropriate permit. For those reasons, the court found that the county’s characterization of the permits would control.

Next, the court turned to the issue of whether the Department had the authority to impose penalties on Twin Bridge. The Department cited provisions of the SMA that allow it to impose fines on those who develop in shoreline areas without the proper permits. The court noted that the company had constructed the marina only after reaching an agreement with the Department that it would apply for a new SDP and then obtaining those permits. In this instance, the court found that Twin Bridge had obtained all of the necessary permits, and the Department could not impose penalties on the company.

LUPA

The court turned to the Department’s regulatory authority over local governments regarding shoreline development. Relying on an analogous case, Samuel’s Furniture v. Department of Ecology,1 the court noted that under the SMA, a local government and not the Department makes the threshold determination of what shoreline SDPs are required under the county’s SMP. In Samuel’s Furniture, the court had determined that LUPA provided the appropriate means for entities challenging a final land use decision by a local authority. The court found that the Department was required to comply with LUPA in this instance as well, given that this was a final land use decision issued by a local authority, Skagit County.

LUPA stipulates that no “person” – including entities like the Department – is exempt from its provisions when challenging a final land use decision by a local authority with jurisdiction. LUPA requires those opposing a final land use decision to appeal that decision within twenty-one days. In this instance, the Department had notice of the county’s decision and did not appeal. After twenty-one days elapsed, the permits were valid and Twin Bridge correctly relied on them.

Conclusion

The court concluded that the disagreement with the local permitting authority should have been resolved through LUPA and not through penalties assessed on Twin Bridge.2 The court affirmed the lower courts’ decisions and dismissed the Department’s fines and orders

Endnotes

1. 147 Wn.2d 440 (Wash. 2002).

2. Twin Bridge Marine Park, LLC v. Dep’t of Ecology, 162 Wn.2d 825, 847 (Wash. 2008).