(dissenting) — While I concur with the majority on the standing issue, I dissent from the remainder of the opinion. The majority has effectively repealed the Shoreline Management Act of 1971, RCW 90.58, by eliminating the requirement that a shoreline land developer must first exhaust administrative remedies before seeking redress through the courts. I also believe it was prejudicial error to admit the Buck affidavit because it constituted a legal opinion rather than a factual presentation.
Exhaustion of Remedies
The rule is that when an adequate administrative remedy is provided, it must be exhausted before the courts will intervene. Wright v. Woodard, 83 Wn.2d 378, 381, 518 P.2d 718 (1974). This rule is based upon the belief that the courts should give proper deference to that body possessing expertise in areas outside the conventional experiences of judges. Retail Store Employees Local 1001 v. Washington Surveying & Rating Bur., 87 Wn.2d 887, 906, 558 P.2d 215 (1976). This is especially true when the relevant issues involve technical matters peculiarly within the competence and special skills of an administrative authority. Sunny Brook Farms v. Omdahl, 42 Wn.2d 788, 793, 259 P.2d 383 (1953). Land use decisions fall within this category especially when we consider the mandate from the Legislature in the form of the Shoreline Management Act of 1971 (SMA), RCW 90.58.010 et seq.
Legislative Background
The SMA was a response to the finding of the Legislature that the "shorelines of the state are among the most valuable and fragile of its natural resources and that there is great concern throughout the state relating to their utilization, protection, restoration, and preservation." RCW *46690.58.020. The Legislature concluded that it is "the policy of the state to provide for the management of the shorelines of the state by planning for and fostering all reasonable and appropriate uses." RCW 90.58.020. To implement this policy, the Legislature provided that initial decisions regarding shoreline development would be made by local government. RCW 90.58.140(2). In this instance, the local administrative authority is the Skagit County Planning Commission. Skagit County Shoreline Management Master Program (SCSMMP) ch. 8.03. The Skagit County Board of County Commissioners has the authority to grant or deny permits after considering the recommendations of the Commission. SCSMMP ch. 8.04(1)(a). If variances or conditional use permits are involved, the Department of Ecology has review authority. RCW 90.58.140(12). Finally, permit decisions are always appealable to the Shorelines Hearings Board, RCW 90.58.180 — an expert body due deference on the subject of appropriate shoreline land use. Department of Ecology v. Ballard Elks Lodge 827, 84 Wn.2d 551, 556, 527 P.2d 1121 (1974). This is the structure created by our Legislature for evaluating a proposed development of a state shoreline.
Padilla Bay
It is against this legislative mandate that we must evaluate The Orion Corporation's decision to forgo formal governmental review of any development proposal. Padilla Bay is a tideland with significant ecological value. It has been recognized as a shoreline of statewide significance by our Legislature. See RCW 90.58.030(2)(e)(ii)(E). The Orion Corporation (Orion) began purchasing property in Padilla Bay in the 1960's. Over the years it claims it has considered several plans to develop its property. Its original intent was to build a Venetian-style resort community. It also considered diking and draining the property and using it as farmland. It explored the possibility of various forms of aquaculture such as oyster and clam harvesting. It even considered the possibility of a duck hunting club. Yet, none *467of these proposals was ever submitted to Skagit County for review. In all the years Orion has owned the Padilla Bay property, it has never once filed for a substantial development permit.
Nevertheless, Orion now asserts that overregulation of its property has resulted in a taking. The issue before us is not the impact of the SMA and other legislation on the value of Orion property, but whether adequate administrative remedies are available for Orion to pursue. In other words, are the remedies within the SMA and SCSMMP capable of alleviating the claimed harm caused by the regulatory programs?
While I recognize Orion property is highly regulated, an adequate administrative remedy is available. As a preliminary matter, it must be stressed that Orion property is not part of the Padilla Bay Estuarine Sanctuary; therefore, the sanctuary regulations do not directly apply to it. All parties agree that the primary regulatory authority is the Skagit County Shoreline Management Master Program. As the majority states, the SCSMMP, through the mechanism of a conditional use permit, is authorized to allow aquaculture. SCSMMP ch. 7.02(2)(A)(6)(3), (B)(ll). The criteria are strict but they are not impossible for Orion to meet. For example, I do not interpret SCSMMP ch. 11.03(c) to mean that all of Orion property must be left undeveloped in order to be compatible with sanctuary activities. The degree to which the sanctuary impacts on Orion land is not certain. A conditional use could be allowed if it was sufficiently removed from sanctuary property. In addition, it is important to note that one of the policies of the SMA is to recognize and protect private property rights consistent with the public use. RCW 90.58.020.
Orion asserts that aquaculture is not an economic use of its land, but that issue is not before us. An adequate administrative remedy is one capable of alleviating the harm. Ackerley Communications, Inc. v. Seattle, 92 Wn.2d 905, 602 P.2d 1177 (1979), cert. denied, 449 U.S. 804 (1980). A remedy is available which would allow Orion to use its *468property. Unless Orion can demonstrate the basis for an exception, it should be required to exhaust its administrative remedies.
Washington recognizes that in certain limited situations administrative remedies need not be pursued. South Hollywood Hills Citizens Ass'n v. King Cy., 101 Wn.2d 68, 677 P.2d 114 (1984). Orion raises a claim of futility. While the record indicates the State is interested in preserving Padilla Bay, the fact remains that the regulations which directly impact on Padilla Bay allow for a conditional use. The criteria for determining whether a conditional use shall be permitted are general and allow for some degree of discretion by the decision makers. In addition, any aggrieved party has the right to appeal a decision to the Shorelines Hearings Board. ROW 90.58.180.
Admittedly Orion land is highly regulated; however, I do not agree that the regulations mean that Orion is absolutely foreclosed from using its land. Therefore, the parameters of what Orion can and cannot do with its property should be made by the administrative body possessing the expertise to make the decision. The effect of the majority's holding is to allow a developer to choose to bypass the administrative process. As long as the developer is able to demonstrate his land is highly regulated, he need not ever submit a concrete proposal to formal governmental review before claiming a taking. By refusing to require the exhaustion of administrative remedies, the majority has effectively nullified the procedural requirements of the SMA.
In addition, I do not believe that Orion should be exempt because it has tacked a 42 U.S.C. § 1983 claim onto its complaint. Orion raises a claim under 42 U.S.C. § 1983 and argues that even if there are administrative remedies available, it is exempt from exhausting them. Patsy v. Board of Regents, 457 U.S. 496, 73 L. Ed. 2d 172, 102 S. Ct. 2557 (1982). Patsy held that a 42 U.S.C. § 1983 claimant is not required to exhaust its administrative remedies before *469bringing an action; however, the holding is limited to actions brought in federal courts.
Buck Affidavit
Peter Buck is an attorney primarily engaged in land use work. Orion submitted his affidavit as support for its position. The affidavit is a highly persuasive piece of evidence; in fact, it is the only evidence which merges the facts and harmonizes the interplay of the regulations and draws a legal conclusion. Buck says:
4. Based on my years of experience in regard to coastal zone regulations and my review of the regulations and other documents set forth above, I conclude as follows:
4.1 Orion will never be granted a substantial development permit to develop its Padilla Bay property for any economically productive use under the Shoreline Management Act as enacted and under Skagit County's Master Program as enacted and since amended by that County.
4.2 A substantial development permit cannot lawfully be granted Orion for economically productive use of its Property. In the extraordinary case that Skagit County disregarded its own Master Program and issued Orion a substantial development permit, such a permit would to a certainty be appealed by the State or by a concerned environmental group, and the Shoreline Hearings Board and courts would have no choice but to overrule such a permit as in violation of the Master Program, the Shoreline Management Act, and regulations under it.
Clerk's Papers, at 212-13. Buck continues:
9. Having concluded that Orion would never be issued a substantial development permit under the use regulations of Skagit County's Master Program, I looked to the Program's provisions for variances set forth in ch. 10. Orion would not be granted a variance. . . .
10. The Master Program provides for conditional uses in chapter 11. Orion would not be granted a conditional use permit.
Clerk's Papers, at 216. In effect, Buck has engaged in the same type of analysis as a trial judge. The rule is that *470experts are not authorized to render opinions of law or mixed opinions of fact and law. Comment, ER 704.
Yet, the trial judge admitted the affidavit, stating the objection went to its weight and not admissibility. This was prejudicial error. We cannot say that this error did not affect or presumptively affect the outcome of the motion, Brown v. Spokane Cy. Fire Protec. Dist. 1, 100 Wn.2d 188, 196, 668 P.2d 571 (1983).
Conclusion
Orion has administrative remedies available to request the development of its property. The majority here, by its decision in ruling Orion need not exhaust its administrative remedies, establishes a dangerous precedent which, in effect, emasculates the Shoreline Management Act of 1971, RCW 90.58, by eliminating the requirement that a shoreline land developer must first exhaust administrative remedies before seeking redress through the courts. The majority here ignores the carefully drafted procedural safeguards that the Legislature has provided to protect our shorelines, and legislates to effectuate an unjustified exemption.
I would also hold that it was prejudicial error to admit the Buck affidavit upon which the trial judge based much of his reasoning in sweeping aside the doctrine that administrative procedure should be exhausted before seeking relief in court.