BEFORE THE SHORELINES HEARINGS BOARD

STATE OF WASHINGTON

JOEL DOUGLAS,                               )

                                                            )

                                    Petitioner,         )           SHB 00-013

                                                            )

            v.                                             )           ORDER GRANTING DISMISSAL

                                                            )

PORT OF BELLINGHAM and           )

CITY OF BELLINGHAM,                  )

            )

                                    Respondents.    )

______________________________)

 

            On August 17, 2000 the Port of Bellingham (“Port”) filed by facsimile transmission a motion to dismiss with the Shorelines Hearings Board (“board”).  The board, on August 21st received the original of the motion and accompanying documents. 

Jonathan K. Sitkin, of Chmelik, Sitkin & Davis, represents the Port.  R. Perry Eskridge, Assistant City Attorney, represents the City of Bellingham (“Bellingham”).  Joel Douglas represents himself as the petitioner. 

The board reviewed and considered the following pleadings pertaining to the motion:

1.                  Port’s Motion to Dismiss;

2.         Port’s Memorandum of Law in Support of Motion to Dismiss;

3.         Affidavit of Jonathan K. Sitkin in Support of Motion to Dismiss;

4.                  Affidavit of R. Perry Eskridge in Support of Motion to Dismiss;

5.                  Affidavit of Patricia R. Decker in Support of Motion to Dismiss;

6.                  Affidavit of James S. Darling in Support of Motion to Dismiss;

7.                  Affidavit of John R. Carter in Support of Motion to Dismiss;

8.                  Affidavit of Mark Amundson in Support of Motion to Dismiss;

9.                  Note for Motion Docket;

10.              Memorandum of Bellingham in Support of Motion to Dismiss;

11.              Joel Douglas’ Response to Motion to Dismiss;

12.              Bellingham’s Reply to Petitioner’s Response to Motion to Dismiss, with Exs. A and B attached;

 

13.              Port’s Reply in Response to Motion to Dismiss, with Ex. A attached;

14.              Second Affidavit of Jonathan K. Sitkin in Support of Motion to Dismiss, with Exs. A and B attached;

 

15.              Declaration of Barry Wenger; and

16.              Statement of Appellant.

The board, assembled in Lacey, heard telephonic oral argument from the parties on Friday, September 22, 2000.  The board was comprised of: Robert V. Jensen, presiding, Ann Daley, Chair, James A. Tupper, Jr., Dean Foster, Martin Carty and O’Dean Williamson.  Yvonne Gillette, affiliated with Gene Barker & Associates, of Olympia, recorded the proceeding. 

            Bellingham issued a substantial development permit to the Port on July 13, 2000.  The Department of Ecology received Bellingham’s filing of that decision on July 17th.  Mr. Douglas filed his petition with the board on July 18th.  The board sent a scheduling letter to the Port, Bellingham and Mr. Douglas on August 2nd.  That letter scheduled a pre-hearing conference for August 17th.  Following the telephonic pre-hearing conference held on August 17th, the board, on August 18th, issued a written pre-hearing order.  That order listed the issues in the case, including compliance by Mr. Douglas with the service requirements of the Shoreline Management Act (“SMA”). 

            At the oral argument, Mr. Douglas stated he had served Bellingham by certified mail on August 18th. 

            The SMA requires service of copies of the petition for review upon the local government, the Department of Ecology (“Ecology”) and the Attorney General, within seven days of the filing of the petition.  RCW 90.58.180(1); WAC 461-08-355(1).  According to his own admission, Mr. Douglas has not served any of these entities. 

            We have held the service requirements of the SMA to be jurisdictional.  Yakama Indian Nation v. Central Pre-Mix Concrete, Order Denying and Granting Motion to Dismiss, at 7-8 SHB 98-40, 41 & 42 (Nov. 9, 1998); accord, Washington Trout v. Skagit County, SHB 96-31 (1996). 

            Mr. Douglas urges us to ignore that precedent, based upon constructive service.  We considered and rejected that contention, under the aegis of substantial compliance in Yakama.  In Seattle v. PERC, 116 Wn.2d 923, 928-29, 809 P.2d 1377 (1991), the Supreme Court explained why substantial compliance does not apply to statutory time limits:

It is impossible to substantially comply with a statutory time limit in the same way.  It is either complied with or it is not.  Service after the time limit cannot be considered to be actual service within the time limit.  We therefore hold that failure to comply with a statutorily set time limitation cannot be considered substantial compliance with that statute. 

 

            We conclude Mr. Douglas failed to comply with the statutorily established service limitations.  Therefore we have no choice but to dismiss his appeal. 

            Based upon the foregoing analysis, the board enters the following

ORDER

            The petition for review filed by Joel Douglas is dismissed. 

DONE this 12th day of October, 2000.

SHORELINES HEARINGS BOARD

                                                                        ROBERT V. JENSEN, Presiding

 

ANN DALEY, Chair

 

JAMES A. TUPPER, JR., Member

                                                                       

                                                                        DEAN R. FOSTER, Member

 

                                                                        MARTIN CARTY, Member

 

                                                                        GORDON CRANDALL, Member

S00-013D