EHO Case Summaries for the period April - September, 2007

Shoreline Cases from the SHB

 

Sterling v. City of Montesano, Paul Willis, Willis Enterprises and Bowers Construction,

SHB No. 06-110

Order of Dismissal (April 20, 2007).

 

Willis and Bowers sought a conditional use permit (CUP) to build commercial office facilities and a warehouse on a parcel in the City of Montesano adjacent to the Chehalis River. The City issued a Determination of Non-Significance (DNS) under the State Environmental Policy Act and approved the CUP. There was no appeal of DNS. Subsequently, Willis applied to the city for vacation of the undeveloped portions of the plat within which the office and warehouse were to be built, including vacation of the rights-of-way. By resolution and ordinance, the City vacated the plat and rights-of-way, subject to a new plat application that contained a perpetual easement along the Chehalis River shoreline.

Sterling appealed the City's actions, arguing that the City was required to amend the 2005 CUP in order to take the street and plat vacation actions, and that further SEPA review was required. Sterling asserted piecemealing, and inappropriate phased review under SEPA.

The Board concluded that it was without jurisdiction over the appeal of the City's action to vacate the plat and related rights-of-way. There was no underlying shoreline permit appeal before the Board, and the Board rejected the argument that preparation of the area for possible future development through the vacation of an outdated plat amounted to inappropriate phasing or piecemealing under SEPA. The Board stated that Sterling showed no linkage between the current actions of the City and the earlier CUP, sufficient to give the Board jurisdiction.

The Board also rejected the City's assertion that because Sterling had pursued a LUPA action in Superior Court he had elected his remedy, and could not appeal to the SHB.

The case was dismissed for lack of jusrisdiction.

 

 

 

 

May v. Roberston/Kvinsland and Pierce County,

SHB No. 06-031

Findings and Conclusions and Order (April 2007)

 

This case involved Pierce County's approval of a shoreline substantial development permit (SDP) for a proposed joint use pier, ramp and float (PRF) and a shoreline conditional use permit (CUP) for a floating watercraft lift on Hale Passage on Puget Sound. The proposed placement of the PRF structure was in the middle of an unusually long stretch of unobstructed sandy beach with no other nearby docks. It would extend from the center of the beach 100 feet into the water.

The Board found the beach and nearshore area was the site of various marine plants that are important for juvenile salmon and spawning forage fish. It also found that eel grass beds, which had been previously destroyed by sediment from earlier development along the top of a high bank adjacent to the sandy beach, were re-establishing along the beach in the vicinity of the proposed float lift and along the shore. The Board also found the beach area in question serves as a migration corridor for juvenile salmonids and supports various other marine species.

Although the float lift was planned to be located in the possible vicinity of some newly established eelgrass, the Board determined the float lift did not otherwise significantly impact the nearshore environment because it was to be located some distance off shore.

In its decision on the SDP, the Board considered the proposal's compatibility with the surrounding environment and other uses. Pierce County's general criteria and guidelines for reviewing substantial development permits include consideration of compatibility. In connection with this analysis, the Board considered cumulative impacts of the project, even though cumulative effects are not specifically listed as criteria for decisions on SSDPs in the Pierce County Shoreline Master Program. The Board held that, even though cumulative impacts are not listed per se as SSDP criteria (as they are for shoreline conditional use and shoreline variance permits), the Board is not precluded from considering cumulative impacts. The Board cited its 2000 decision in Viafore v. Mason County, SHB No. 99-033 as support for its conclusion that, in some circumstances, it is appropriate to consider SDP applications for docks in the context of potential future development. In so doing, the Board distinguished the facts in May from its 2006 decision in Roller v. Unger, SHB No. 06-016, where the Board had held that the Pierce County Code did not require consideration of cumulative effects, pointing out that the Roller case also did not preclude such consideration. In Roller, there had been several existing piers visible from the proposal site and within a short distance. Also, there was no evidence of any risk of environmental damage present in Roller, as the Board found was the case in the May proposal.

The Board reversed Pierce County's decision approving the PRF, and affirmed the County's approval of the CUP for the floating watercraft lift, but added a condition that a supplemental eel grass survey be conducted to allow placement of the float lift in a location that would not impact eelgrass.

The applicants have appealed the Board's decision to Pierce County Superior Court.

 

 

 

Fladseth v. Mason County

SHB No. 05-026

Findings and Conclusions and Order (May 1, 2007)

 

This appeal involved Mason County's denial of a shoreline substantial development permit (SDP) a proposal for a 115-foot joint use pier-ramp-float (PRF) project on the north shore of Hood Canal in Mason County near Belfair, Washington. The Board affirmed the County's denial on the basis that the PRF was not consistent with the Mason County Shoreline Master Program (MCSMP).

The MCSMP recognizes that additional uses place increasing pressures on the shorelines and that unrestricted construction on the shores of Mason County is not in the best public interest. Although there is no specifically-articulated distinction in the MCSMP between the north and the south shores of Hood Canal the County asserted that a cumulative effects analysis is required. In its decision, the County considered the extent of development on both shores of Hood Canal and the potential cumulative impact of additional over water structures on the comparatively undeveloped north shore.

The Fladseth's proposal was opposed by a group of neighbors that formed a non-profit organization created to oppose the construction of inappropriate permanent structures in the inter-tidal zone of Hood Canal. The group pointed to the scarcity of such structures on the north shore, and cited potential adverse impacts to views, public enjoyment of the tidelands and the environmental quality of Hood Canal and its marine life.

The Board found that the north shore of Hood Canal in Mason County is relatively undeveloped with docks compared to the south shore. A biological evaluation (BE) prepared for the Fladseths discussed potential indirect effects from the project, including the alteration of nearshore juvenile salmon routes, but did not assess the potential cumulative effects from increased numbers of docks.

Citing its decision in the May case (SHB No. 06-031), the Board again concluded that it was not precluded from considering cumulative environmental impacts, where appropriate. The Board found that there is a general requirement for cumulative effects to be considered as part of a SDP for a pier or dock in Mason County on Hood Canal, which is a shoreline of statewide significance. The Board opined that the amount of development already present in an area is another important consideration, and that the potential for future build-out is an important, albeit not determinative consideration in a cumulative impacts analysis. In affirming Mason County's denial of the SDP, the Board stated that consideration of potential cumulative effects and precedential effects is warranted in any case where there is proof of impacts that risk harm to habitat, loss of community use, or a significant degradation of views and aesthetic values.

 

 

 

Dagg & Enselman v. San Juan County,

SHB No. 06-037

Order on Summary Judgment (July 19, 2007)

 

The Daggs and Enselmans applied together for a shoreline substantial development permit (SDP) from San Juan County to build a pier-ramp-float (PRF) on Garrison Bay on San Juan Island.� San Juan County denied the Dagg/Enselman application because the applicants had not established, as required by the San Juan County Shoreline Master Program that use of another neighbor's existing dock (located on Lot 94) was "not adequate or feasible." �The County's decision to deny the Dagg/Enselman application reflects its strong policy to control the proliferation of docks along its shorelines.

The applicants, on a motion for summary judgment before the Shorelines Hearings Board, argued that joint use of the Lot 94 dock was not adequate or feasible because the owner of Lot 94 had proposed conditions for joint use that were unreasonable. The history of the Lot 94 dock was brought out through the summary judgment process, where it was determined that when the Lot 94 dock was permitted and built, the owner had agreed as a condition of obtaining the permit, to allow joint use by the lots now owned by Dagg and Enselman "if requested and subject to reasonable terms." This condition was recorded against Lot 94's deed, but not on the deeds of the neighboring lots.

The Board concluded on summary judgment, as a matter of law, the Daggs and Enselmans did have legal access to Lot 94's dock on reasonable terms because of the condition in the Lot 94 permit. To conclude otherwise, the Board reasoned, would make joint use of Lot 94's dock a fiction, would result in two docks instead of one, and would run counter to the policy of San Juan County to avoid the proliferation of docks.

The Board declined to rule on whether the terms of use proposed by the owner of Lot 94 were reasonable. The Board concluded that it was not the appropriate forum to make this determination because the permit under appeal, and over which the Board had jurisdiction, was not the Lot 94 permit, but the Dagg/Enselman application for a permit. The Board noted that the owner of Lot 94 was not a party to the appeal of the Dagg/Enselman application and that the dispute regarding the joint use of Lot 94 is a private dispute between neighbors outside of the Board's jurisdiction. The Board also noted, however, that the County had a role to play in resolving this dispute because the County had approved the Lot 94 dock on the condition that joint use be allowed on reasonable terms (and thereby had enforcement authority and responsibility), and that it had failed to require the completion of a joint use agreement or recording of the joint use condition at the time of the original permit.

The Board's decision is on appeal to San Juan County Superior Court.

 

 

 

 

Kinzel v. Department of Ecology,

SHB No. 05-007

Findings of Fact, Conclusions of Law and Order (July 20, 2007)

 

This case involved the appeal of a civil penalty reinstated after Petitioner failed to fulfill the requirements of a restoration plan the parties had previously agreed to in lieu of the monetary penalty. The Petitioner had constructed a rock berm in the Wenatchee River 20 to 60 feet waterward of the ordinary high water mark because he was concerned about potential erosion of his property. The Petitioner then placed approximately 1,400 cubic yards of fill behind the rock berm. All of this work was done without permits. The Department of Ecology imposed a $30,000 penalty for these violations.

The Petitioner, through his attorney, persuaded the representatives of the local, state, and federal agencies to allow the Petitioner to restore the shoreline rather than pay the penalty. The Petitioner hired a landscape consultant to develop a restoration plan that was eventually approved by the government agencies. Shortly before the hydraulic project approval was issued by the Department of Fish and Wildlife to allow the restoration work to commence, the Petitioner decided the plan was too expensive and discharged the landscape consultant. Petitioner's attorney withdrew shortly thereafter. Ecology asked the Board to reinstate the full $30,000 penalty and require the Petitioner to also implement the restoration plan.

Based upon the evidence at the hearing, the Board concluded that the restoration plan was not unreasonable or too expensive. The Board noted that this stretch of the Wenatchee River was highly valuable because of its use by fish listed as endangered or threatened under the federal Endangered Species Act. The Board also rejected Petitioner's argument that the ordinary high water mark was more appropriately determined by maps depicting elevation levels rather than the vegetation line on-site.� Although the Board affirmed the entire $30,000 penalty, it suspended all but $5,000 of the penalty in order for the Petitioner to move forward on the restoration of the property. The Petitioner has appealed the Board's decision.

 

 

 

Stollar et.al. v City of Bainbridge Island and Ecology,

SHB No. 06-024, 06-027 (Consolidated)

Findings of Fact, Conclusions of Law and Order (September 25, 2007)

 

Five homeowners of contiguous parcels on the west side of Bainbridge Island sought review of decisions by the City of Bainbridge Island and Ecology that denied conditional use permits to build a common bulkhead at the base of the bluff beneath their homes. The Shorelines Hearing Board affirmed the denial of the conditional use permits.

The properties sat on a Bainbridge Island bluff, characterized by the City as one of the most significant feeder bluffs on the Island. The feeder bluff is approximately 3600 feet long, and contributes a significant amount of sediment to Puget Sound in the Agate Passage area. It supports a diversity of biological processes, including off-shore fish spawning, and a rich near-shore environment. Because the ongoing erosion of the bluff was resulting in various forms of landslide activity along the bluff, Petitioners were concerned about the long-term stability of the bluff and integrity of their homes and some appurtenant structures. They sought to build a traditional hard-armored bulkhead of approximately 420 feet along the base of the bluff to protect the toe of the bluff, in order to slow upper bluff erosion and failure. Petitioners made limited efforts to explore and consider alternative soft-bank shore protection approaches for their properties.

The Board decision relies on the terms of the Bainbridge Island Shoreline Master Program (BISMP), which disfavors hard bulkheads, and places a heavy burden on those seeking to build such a structure. First, the Board noted that the BISMP prohibits outright shoreline hardening on shores with valuable geo-hydraulic or biological processes sensitive to interference and critical to shoreline conservation, such as feeder bluffs. BISMP 16.12.300 C.4. The Board concluded that the proposed bulkhead was prohibited under this section, given the unique characteristics of the area. If not prohibited outright, the Board concluded that the Petitioners failed to "conclusively demonstrate" that soft shore bank stabilization (such as use of natural materials or nonstructural solutions) was unworkable to protect the development on the bluff. This standard is set out in the BISMP. The Board then concluded, as had Ecology, that Petitioners had not met the conditional use criteria of WAC 173-27-160, as the proposal was inconsistent with the BISMP. The Board also noted the likelihood of a detrimental cumulative impact to the granting of the permit in this case.

The case has been appealed to Thurston County Superior Court.

 

 

Pollution Control Hearings Board Cases

 

Community Association for Restoration of the Environment (CARE) v. Ecology, Northwest Dairy Association (NDA) et. al.,

PCHB 06-057, 055 (consolidated)

Order on Motions; Findings of Fact, Conclusions of Law and Final Order, (both issued August 1, 2007)

 

This consolidated case involved appeals of the Concentrated Animal Feeding Operation National Pollution Discharge Elimination and State Waste Discharge General Permit (CAFO General Permit) issued by Ecology. The Appellant and Intervenors challenged numerous conditions of the permit, including those related to nutrient management plans (NMPs), soil monitoring, surface and ground water quality monitoring, reporting requirements, and public access to CAFO records.

The parties brought motions for summary judgment on many of the legal issues in the appeal. The Board decided, on summary judgment, that it was reasonable for the permit to require permittees to update their NMPs when they change the field areas where they land apply animal wastes, and clarified the timing required for the updates.� It also decided that the scope and timing of the permit's noncompliance reporting requirements were lawful and that the permit termination provisions were lawful. The Board concluded, as a matter of law, the permit did not eliminate other defenses or discharge authorizations available through other federal regulations or permit conditions, and that it did not eliminate a citizen's right to appeal the substantive adequacy of a CAFO's NMP as part of an appeal of Ecology's coverage decision for an individual CAFO.

The Board directed Ecology to modify the permit to include a definition clarifying the standards for establishing land application rates in a manner that is consistent with AKART requirements. The Board also denied summary judgment on several issues on the basis that material facts were in dispute or that further development of the record was needed to resolve the matters.

After the hearing on the merits, the Board concluded that the CAFO General Permit, with certain clarifications, complies with applicable federal and state water quality requirements. The Board found the permit was the product of an open and iterative permit development process and represents a scientifically sound and reasonable decision on the part of Ecology. The Board further found the Appellant CARE failed to prove that the permit's record keeping and reporting provisions conflict with the public access requirements of the federal Clean Water Act (CWA) or state laws related to public records and public disclosure. The Board also concluded that the permit's approach to providing public access to facility inspection, discharge, and other record information strikes a lawful balance between allowing interested citizens access to adequate information while protecting permittees from the disclosure of confidential business information.

The Board found CARE had similarly failed to prove the permit's reliance on NMPs based on Natural Resources Conservation Service (NRCS) standards is either unlawfully vague or ambiguous, or unenforceable. The Board affirmed Ecology's decision to require NMPs to conform to NRCS practice standards. Finally, the Board affirmed the CAFO General Permit's environmental monitoring regime as reasonable and appropriate and determined that CARE's challenge to the adequacy of the Permit's soil monitoring requirements, and its request for the Permit to include surface and groundwater monitoring, were not supported by the weight of the evidence.

CARE appealed the Board's decision to Thurston County Superior Court, and all parties jointly requested a certificate of appealability for direct review by the Court of Appeals. The Board granted the request and issued a certificate of appealability in October. �The Court has not yet decided whether it will accept direct review.

 

 

 

 

Mountain West Senior, LLC, and Maddox Construction, LLC, v Ecology, PCHB No. 06-073 and 06-110 (Consolidated) ----Order on Summary Judgment (August 15, 2007)

 

Ecology issued separate penalties to Mountain West and Maddox for violations of the Construction Stormwater General Permit and Ch. 90.48 RCW at a construction site in Whatcom County. Mountain West was the owner of the development project, while Maddox was the general contractor and site operator. Mountain West obtained coverage under the General Permit for the construction activity at the site, but Maddox did not.

Maddox argued on summary judgment that it could not be subject to penalties where another entity is covered by the permit. The Board rejected this argument and held that Ch. 90.48 RCW does not excuse discharges in violation of the chapter simply because another entity is covered by a permit for those same activities. The Board noted that the statute is a strict liability scheme, and that contractors at a construction site must comply with RCW 90.48.080 whether or not they are a signatory to the general permit.

Although the Board concluded that separate penalties may issue, it noted that there was a question of whether Ecology could impose a maximum statutory penalty of $10,000 per day per violation against both the site owner and site operator where they shared in responsibility for a single discharge violation. The question of whether there must be joint liability in such circumstance was left unresolved on summary judgment.

Also unresolved on summary judgment was the question of whether Maddox, as the operator at the site, could be penalized for failing to obtain coverage under the General Permit in the first instance. The Board's decision points out that questions remained as to how Ecology interpreted and applied the terms of the general permit on the issue of who (owner or operator, or both) must be covered by the General Permit.

The case has not proceeded to hearing, pending a final settlement by the parties.