Selected Court Decisions
The court held that the "owner-noncommercial use exemption" to the definition of "substantial development" in RCW 90.58.030(3)(e)(vii) and thus to the requirement of a substantial development permit did not apply to the construction of spec docks for resale by the owner-developer of a 30-lot residential waterfront development. A developer-owner of property to be divided into multiple lots is not a private noncommercial user to which this exemption would apply.
The state supreme court held that shoreline master programs (SMPs) developed pursuant to the Shoreline Management Act are not subject to RCW 82.02.020, which prohibits local governments from imposing direct or indirect taxes, fees, or charges on development. The Shoreline Management Act governs nearly every aspect of the adoption and amendment of SMPs and this shows that SMPs were the product of state action. By its terms, RCW 82.02.020 applies to land use regulations and conditions imposed by local jurisdictions. While local jurisdictions played a role in tailoring SMPs to local conditions, the Shoreline Management Act dictates that the Department of Ecology retains control over the final contents and approval of SMPs. Thus, SMP regulations are the product of state action and not subject to RCW 82.02.020.
The court of appeals upheld the city's amendment to its shoreline master program prohibiting private docks in Blakely Harbor, a shoreline of statewide significance, concluding that the amendment was consistent with statutory guidelines. The court held that private docks in the harbor are not a preferred use, that the amendment was consistent with the city's shoreline master program and comprehensive plan, and that the amendment did not violate the "public trust" doctrine.
The Growth Management Act (GMA) does not apply to those critical areas inside shoreline management areas managed through shoreline master plans properly adopted, amended, and approved by Department of Ecology under the Shoreline Management Act (SMA). Critical areas within the jurisdiction of the SMA are governed only by the SMA. However, what is left unanswered by the court's plurality decision (a fifth justice concurring in the result only) is when the 2003 law at issue transfers protection of shoreline critical areas to a shoreline master program. Two subsequent court of appeals decisions from different divisions (Kitsap Alliance of Property Owners v. Growth Mgmt. Hrgs. Bd.
, 152 Wn. App. 190 (2009), and Kailin v. Clallam County
, 152 Wn. App. 974 (2009)) reached differing conclusions as to the effect of the Futurewise decision. The 2010 legislature resolved the matter with the passage of ESHB 1653 (Ch. 107, Laws of 2010)
The Department of Ecology (DOE) does not have statutory authority to directly review or to set aside a shoreline substantial development permit issued by a local jurisdiction having an approved shoreline management plan under the SMA. Should DOE wish to challenge a locally-issued substantial development permit, it must do so by means of a timely filed petition in superior court under the Land Use Petition Act (chapter 36.70C RCW). DOE may not collaterally challenge that decision by bringing an independent enforcement action against the developer.
In a 5-4 decision, the state supreme court overturned the city's moratorium on shoreline development. The city had adopted adopting successive moratoriums that prevented the development of private property in shoreline areas over a period of years. However, five justices held that local governments have authority to enact moratoria on shoreline development without being in conflict with the SMA.
The ordinary high water mark (OHWM) occurs where the presence of water is reflected in the vegetation, and the OHWM can reasonably be interpreted as meaning that the line occurs where the river has caused aquatic vegetation to grow; therefore, the Shoreline Hearings Board did not err by denying an owner a variance for a deck because it interfered with the setback from the ordinary high water mark under RCW 90.58.030(2)(b).
RCW 36.70A.480 does not mandate that the policies and regulations of the SMA take priority over policies and regulations adopted under the GMA. On the contrary, the statute requires that regulations implementing the two acts be harmonized in the process of overall land use planning and regulation and specifically states that a county's shoreline master program goals and policies are part of its growth management comprehensive plan and that its master program regulations constitute development regulations.
The Land Use Petition Act (LUPA), chapter 36.70C RCW, is the exclusive means of judicial review of land use decisions, with certain exceptions. RCW 36.70C.030. One of those exceptions is that LUPA does not accommodate judicial review of a land use decision that is subject to review by a quasi-judicial body created by state law. RCW 36.70C.030(1)(a)(ii). Specifically, decisions reviewable by the Shorelines Hearings Board are not subject to judicial review under LUPA.
Samuel's Furniture v. Dept. of Ecology
, 147 Wn.2d 440 (2002) - DOE challenge subject to LUPA
The Land Use Petition Act (LUPA), chapter 36.70C RCW, provides the avenue by which the Department of Ecology (DOE) may challenge a local government's decision that a proposed development does not require a shoreline substantial development permit because the project is outside the shoreline jurisdiction of the local shoreline master program. Where DOE has failed to timely seek review of the local government's decision under LUPA, it may not collaterally challenge the decision by bringing an independent enforcement action against the property owner or developer.
A landowner seeking a variance from the requirements of a shorelines master program must comply with the requirements of a county or city ordinance if those requirements are stricter than those established by WAC 173-14-150 (now WAC 173-27-170
). In the granting variances in shorelines cases, consideration must be given to the cumulative impact of additional requests for like actions in the area.
Either a private citizen or a government entity may base an action for damages on the SMA, but only a governmental entity may base an action for injunctive or declaratory relief on the SMA.
San Juan County's threshold determination of nonsignificance did not preclude the Shoreline Hearings Board's independent review of the application. The board did not err in considering other applicable state and local regulations when it denied the substantial development permit based on deficiencies outside SEPA.
The Shoreline Management Act does not require that a shoreline office building be an integral part of, or be related to, the water dependent use built in conjunction with the offices.
The Shoreline Management Act authorizes local governments to require conditional use permits for shoreline activities, commercial clam harvesting in this case, that are not "developments" as defined by the Act.
Under the SMA, a home may be required to conform to a voluntary setback line established by adjacent homes if a location closer to the shore would detrimentally affect the aesthetics of the neighborhood and obstruct the view and reduce the value of the adjacent homes. The placing of a mobile home, the addition of a septic tank and drain field, and the construction of a deck within the 200-foot jurisdictional boundary of the SMA constituted a "development" under RCW 90.58.140(1). The prior location of plaintiff's homes on either side of defendant's lot created a voluntary setback to which defendant's development was required to conform.
Any common-law public benefit doctrine this state may have had prior to 1971 has been superseded and the SMA is the present declaration of that doctrine.
Dep't of Ecology v. Pacesetter Constr. Co., 89 Wn.2d 203 (1977) - Conflict between SMA and building code
The SMA is a state statute of general application basically intended for the protection of the environment rather than the quality of construction, and, to the extent of any conflict between a city building code and SMA, the latter must govern.
Talbot v. Gray
, 11 Wn. App. 807 (1974), review denied, 85 Wn.2d 1001 (1975)
Vesting under SMAA right to a permit required by the Shoreline Management Act vests upon the application for such permit. This rule, of course, assumes that the permit applied for and granted be consistent with the shoreline plan and regulations in force at the time of application for the permit.