Twin Bridge Marine Park, LLC v. Department of Ecology

¶59

Owens, J.

(dissenting) — This case presents the question of whether a local government’s decision to issue its own building permits can limit the independent authority of the Department of Ecology to enforce compliance with an existing shoreline permit under the Shoreline Management Act of 1971 (SMA), chapter 90.58 RCW. The majority relies on an expansive interpretation of this court’s holding in Samuel’s Furniture, Inc. v. Department of Ecology, 147 Wn.2d 440, 54 P.3d 1194 (2002), to conclude that the issuance of two building permits by Skagit County (County) implied a land use decision under the Land Use Petition Act (LUPA), chapter 36.70C RCW, which necessarily limited Ecology’s independent enforcement authority under the SMA.

¶60 I believe that the issuance of the building permits did not require Ecology to comply with LUPA because the County never made a land use decision from which Ecology could appeal under LUPA, the SMA grants Ecology independent authority to enforce compliance with existing shoreline permits, and Samuel’s Furniture does not effectively limit Ecology’s jurisdiction to enforce the SMA. For these reasons, I respectfully dissent.

I. The Building Permits Issued by the County Did Not Constitute a Land Use Decision from Which Ecology Could Appeal under LUPA

¶61 The majority holds that the building permits issued by the County constituted a land use decision for purposes of LUPA, as they implied a final determination that Twin Bridge Marine Park’s development could proceed without further compliance with the SMA. The majority concludes *857that Ecology was required to file a LUPA petition in order to challenge that implied decision. However, the majority fails to explain how the County’s decision finally determined Twin Bridge’s compliance with the SMA in order to give Ecology standing to file a LUPA petition.

¶62 LUPA provides the exclusive remedy for parties to seek review in superior court of land use decisions issued by a local government. RCW 36.70C.030, .040. A land use decision is defined as a “final determination” by the highest authority of the local government, “including those with authority to hear appeals.” RCW 36.70C.020(1). A party must exhaust its administrative remedies, including administrative review procedures, in order to petition a land use decision. RCW 36.70C.060(2)(d); see Ward v. Bd. of Skagit County Comm’rs, 86 Wn. App. 266, 271-73, 936 P.2d 42 (1997). A party has no standing to file a LUPA petition before a decision has become final. RCW 36.70C.060(2)(d).

¶63 The issuance of the building permits did not constitute a final determination by the County because that decision remained subject to administrative review. Soon after the County issued the building permits, the city of Anacortes appealed the building permits to the county hearings examiner.39 A county hearing examiner is an administrative body. Ward, 86 Wn. App. at 271. LUPA requires parties to exhaust administrative remedies before filing a petition in superior court. RCW 36.70C.060(2)(d). Ecology would have no standing to file a LUPA petition challenging the permits because that decision remained subject to the hearing examiner’s administrative review. Ward, 86 Wn. App. at 271 (“[A]gency action cannot be challenged on review unless all rights of administrative appeal have been exhausted.”).

*858¶64 The decision to issue the building permits did not finally determine Twin Bridge’s compliance with the SMA. This court has recognized that “[a] ‘final decision’ is ‘[o]ne which leaves nothing open to further dispute and which sets at rest cause of action between parties.’ ” Samuel’s Furniture, 147 Wn.2d at 452 (second alteration in original) (quoting Black’s Law Dictionary 567 (5th ed. 1979)). In this case, Twin Bridge’s compliance with the SMA remained subject to multiple actions after the County issued the building permits. First, the county hearing examiner decided that Twin Bridge must obtain a new shoreline permit for its amended development plans. The County then decided to suspend the building permits. Next, Twin Bridge applied for a new shoreline permit with the County. Twin Bridge also entered into a settlement agreement with Ecology, through which it agreed to pursue the new shoreline permit in good faith. Finally, shortly after the settlement agreement, the County reissued the building permits and continued to process the shoreline permit application.40

¶65 Ecology had no standing to file a LUPA petition as an aggrieved party before the County made a decision on Twin Bridge’s shoreline permit application. RCW 36.70C-.060(2). The SMA requires parties to obtain a shoreline permit for the development of shoreline property. RCW 90-.58.140(2). Only the decision of whether to issue the shoreline permit could be a final determination by the County that Twin Bridge had fully complied with the SMA. The submission of the shoreline permit application required the County to decide whether or not to grant, deny, or rescind the application. Without such a decision, the authorization to develop pursuant to the SMA remained “open to further dispute.”41 Samuel’s Furniture, 147 Wn.2d at 452.

*859¶66 The SMA requires Ecology to appeal a local government’s decision to grant, deny, or rescind the shoreline permit to the Shorelines Hearings Board (Board). RCW 90.58.180(2). In this case, the County simply delayed making that final decision. Requiring Ecology to appeal the County’s decision to issue the permits in superior court before the County made a decision on the new shoreline permit would defy the jurisdiction conferred on the Board as well as LUPA’s policy favoring finality in land use decisions. See Samuel’s Furniture, 147 Wn.2d at 458.

II. Ecology Has Independent Authority To Enforce Compliance with the SMA

¶67 While the majority characterizes this case as a long-standing jurisdictional conflict between Ecology and the County, the facts merely describe a dispute between Ecology and a private developer. In fact, the County conferred jurisdiction upon Ecology to enforce the SMA in the first place by issuing the shoreline permits. Ecology issued its enforcement orders and penalties under that authority. Twin Bridge did not comply with Ecology’s orders because it chose to rely solely on the County-issued building permits. The allocation of enforcement jurisdiction under the SMA does not permit a developer to choose which agency to obey.

¶68 The SMA creates independent enforcement jurisdiction in both Ecology and local governments. RCW 90.58-.210(1). Either entity may assess a penalty against “[a]ny person who shall fail to conform to the terms of a permit issued under this chapter or who shall undertake development on the shorelines of the state without first obtaining any permit required under this chapter.” RCW 90.58-.210(2). Furthermore, Ecology may not review penalties assessed by local governments. RCW 90.58.210(4). Likewise, local governments may not review penalties assessed by Ecology. Id.

¶69 There is no question in this case that Twin Bridge fell within the enforcement jurisdiction of Ecology, pursu*860ant to the shoreline permits issued by the County. Under such authority, Ecology gave express written notice to Twin Bridge’s predecessor in interest that the permits only authorized the moorage and storage of equipment used for its dredging business and that any other substantial development would require a new or revised permit.42 See Twin Bridge Marine Park, LLC v. Dep’t of Ecology, 130 Wn. App. 730, 733, 125 P.3d 155 (2005). Nonetheless, when Twin Bridge changed its development plans to construct a dry-stack storage facility, it did not apply for a new shoreline permit. As warned, Ecology ordered Twin Bridge to obtain a new shoreline permit and assessed a penalty, fully within its authority under RCW 90.58.210(2).43

¶70 Twin Bridge sought review of Ecology’s penalty assessment with the Board. See RCW 90.58.210(4). As a result of that appeal, Twin Bridge and Ecology entered into a settlement agreement through which Twin Bridge agreed to pursue a new shoreline permit application in order to *861avoid the penalty assessed by Ecology.44 Before the agreement was made, the County had suspended the building permits. The County reissued the building permits only after Twin Bridge applied for the shoreline permit and agreed to pursue the permit in good faith.45

¶71 Based on these facts, the majority determines that Twin Bridge “was justified in relying on reissue of its building permits.” Majority at 840. However, Twin Bridge could not have reasonably inferred that the reissued building permits determined its compliance with the SMA while the shoreline permit application remained pending. Such reliance is plainly unjustifiable because it ignores that Twin Bridge remained subject to Ecology’s independent enforcement jurisdiction. A party cannot decide for itself who may assert jurisdiction over it.

¶72 To require Ecology to file a LUPA petition under these facts would effectively limit Ecology’s ability to enforce the SMA. Ecology must have jurisdiction under the SMA before it can enforce compliance against a party. Once the jurisdictional determination is made, however, the SMA grants Ecology discretion to enforce compliance with the shoreline permit requirements. See RCW 90.58.210. The burden of challenging Ecology’s enforcement authority rests with the party against whom Ecology seeks to enforce compliance. The SMA confers jurisdiction on the Board to review appeals of penalties assessed by Ecology for failure to obtain or comply with a shoreline permit. RCW 90.58.210(4).

¶73 The majority disregards this procedure in favor of one that requires Ecology to defend its authority in the first instance by filing a LUPA petition in superior court. In this *862case, the County made the initial jurisdictional determination by issuing the shoreline permits. Ecology took enforcement action under such jurisdiction. Despite the County’s determination, Twin Bridge chose to ignore Ecology’s enforcement authority in favor of its own interpretation that the County building permits somehow revoked Ecology’s enforcement authority.

¶74 Twin Bridge claims, and the majority now holds, that Twin Bridge was entitled to rely on its own interpretation of Ecology’s authority to enforce the SMA after jurisdiction had been conferred, and that Ecology must appeal that interpretation in order to defend such authority. Such a procedure totally contradicts the jurisdiction allocation under the SMA by subordinating Ecology’s authority to Twin Bridge’s own determination not to comply with Ecology’s orders.

III. Samuel’s Furniture Does Not Affect Ecology’s Independent Authority To Enforce the SMA

¶75 The majority relies on this court’s decision in Samuel’s Furniture to infer that the County-issued building permits constituted a land use decision and therefore limited Ecology’s enforcement action to filing a LUPA petition. In Samuel’s Furniture, this court held that Ecology must file a LUPA petition in order to challenge a local government’s determination that a development project did not fall within the jurisdictional boundaries of the SMA. The issue in Samuel’s Furniture dealt with a determination of jurisdiction under the SMA, not solely the decision to issue a local building permit.

¶76 In Samuel’s Furniture, the city created a shoreline management plan (SMP) that designated certain property outside the jurisdiction of the SMA. 147 Wn.2d at 444. Ecology approved the city’s SMP. Id.; see also RCW 90.58-.090. Pursuant to this jurisdictional determination, the city issued local building permits for a project on that property without issuing a shoreline permit. Samuel’s Furniture, 147 Wn.2d at 444. Ecology then informed the developer that *863the city had erroneously failed to include the property within its SMP and that the development project would require a shoreline permit. Id. at 445. The city expressly disagreed with Ecology’s opinion and allowed the development to continue without a shoreline permit. Id. at 445-46. When Ecology threatened to enforce the SMA, the developer sought a declaratory judgment that Ecology could challenge the city’s jurisdictional determination only through a LUPA petition. Id. at 446-47.

¶77 This court agreed with the developer and determined that the issuance of a local building permit necessarily required a determination that the project fell outside of the SMA’s jurisdictional boundaries. Id. at 451. The court concluded that the jurisdictional decision by the city constituted a final land use action for purposes of LUPA.

¶78 Interestingly, the court conflated the distinction between the decision to issue the permits and the original decision to approve the SMP. Id. at 451 n.11. The court did note, however, that the real jurisdictional decision was made at the time the city approved the SMP. “[E]ven if the two decisions were distinct and Ecology now concedes that the City’s initial determination that the project was outside the shoreline jurisdiction was a decision subject to appeal, then it was required to appeal that decision within 21 days.” Id. Regardless of which decision triggered LUPA’s limitation period, it is clear that the building permits were relevant in that case only to the extent that they related to the jurisdictional decision by the city. See id. at 451 (“Ecology could have challenged the issuance of those permits on the basis that they are inconsistent with the SMA because no substantial development permit was issued.”).

¶79 Unlike Samuel’s Furniture, the County’s building permits in this case did not imply a jurisdictional decision regarding the SMA. In fact, the County’s decision to issue the initial shoreline permits invoked Ecology’s jurisdiction to enforce those permits. RCW 90.58.210. The subsequently issued local building permits did not revoke or alter the County’s initial determination that the SMA governed the *864development project. The County continued to process the new shoreline permit application after it reissued the building permits.

¶80 The mere issuance of local building permits does not subordinate the independent obligation created under the SMA to obtain a shoreline permit. The provisions of the SMA expressly do not affect any locally created requirement to obtain any permit or license. RCW 90.58.360. Conversely, any local permit or licensing requirements do not obviate the permit requirement created by the SMA. As Ecology and local governments have independent enforcement jurisdiction of the SMA, the County’s decision to issue the local building permits did not affect Ecology’s enforcement of the SMA’s permit requirement.

¶81 The Samuel’s Furniture court went on to recognize that LUPA specifically does not affect Ecology’s independent enforcement jurisdiction under RCW 90.58.210. The court assured that requiring Ecology to appeal a local government’s jurisdictional decision under LUPA would not prevent Ecology “from taking action against a party who completely ignores the shoreline permitting process or one who obtains a permit and then proceeds to violate the conditions of the permit.” Samuel’s Furniture, 147 Wn.2d at 456. Therefore, the court determined that LUPA would not apply when Ecology took action to enforce the SMA against a party, such as Twin Bridge, who failed to obtain a new permit.

¶82 The court explained that Ecology’s authority to issue penalties for such a violation first required a determination that Ecology had jurisdiction under the SMA. Id. at 457. When a local government has made a final decision that the SMA has no jurisdiction, only then would Ecology have to file a LUPA petition before exercising its enforcement authority. Id. On the other hand, if a local government invoked Ecology’s jurisdiction by issuing a shoreline permit, then Ecology could directly proceed to take action under its enforcement authority. See id. at 456.

*865¶83 Quite apart from the reasoning in Samuel’s Furniture, the majority now establishes a rule that would require Ecology to file a petition in superior court before it could take any enforcement action against a party, even when the local government has determined that the SMA applies. I believe such a rule does not follow from Samuel’s Furniture and impermissibly infringes on Ecology’s independent enforcement authority under the SMA.

¶84 In this case the Board determined that the Comity-issued building permits did not prohibit Ecology from directly ordering Twin Bridge to comply with the shoreline permits and affirmed Ecology’s orders and penalties. I would affirm the Board’s decision.

Madsen and Chambers, JJ., concur with Owens, J.

After modification, further reconsideration denied May 20, 2008.

The majority and the Court of Appeals describe the city’s appeal as a LUPA challenge. See Twin Bridge Marine Park, LLC v. Dep’t of Ecology, 130 Wn. App. 730, 734, 125 P.3d 155 (2005). Such a characterization of the city’s action is problematic as LUPA requires an aggrieved party to file a petition in superior court, not with an administrative body. RCW 36.70C.040. The hearing examiner had jurisdiction over the city’s claim under the county code, not LUPA.

Apparently, the hearing examiner vacated its decision on procedural grounds. Clerk’s Papers (CP) at 404.

The majority repeatedly draws attention to the fact that Ecology no longer argues that Twin Bridge is in violation of the SMA. Ecology conceded that Twin Bridge is currently in compliance with the SMA because the County ultimately approved the shoreline permit. The County’s decision to approve the shoreline *859permit finally determined Twin Bridge’s compliance with the SMA. A LUPA petition would have been prematurely filed before the Comity made that decision.

When Ecology approved permit 7-82, it notified Twin Bridge’s predecessor that

“[i]t 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.”

Twin Bridge, 130 Wn. App. at 733. The other permit, 15-86, permitting dredging of 40,000 cubic yards, was later amended in regard to the reconfiguration of a marine basin. CP at 10. The permits did not include any buildings, utilities, paving, or public access. Id. Ecology approved the permits as conditional use permits. While the majority concludes that the permits were later determined to be substantial use permits, and therefore did not require Ecology’s approval, such a determination does not affect the notice Twin Bridge received.

While the majority summarily rejects as “counterintuitive” any assessment that Twin Bridge’s development of a dry-dock marina could have created a significantly different impact on the environment from the original mooring and storage site, majority at 837, I am confident that the Board stands in a better position than this court to assess the environmental impact of such projects. Even the Court of Appeals recognized that the changed use constituted “a more ambitious development of [the] property as a marina.” Twin Bridge, 130 Wn. App. at 734.

The good faith requirement obviously contemplated that Twin Bridge would not resume construction unless and until the County granted, denied, or rescinded Twin Bridge’s application.

While submitting its application for the new shoreline permit under protest, Twin Bridge specifically requested the County “to review and act upon the application as promptly as possible.” Administrative R. at Ex. R-53 (emphasis added).