Grill v. Anacortes

SHORELINES HEARINGS BOARD

STATE OF WASHINGTON

RICHARD P. GRILL and ANNETTE T. TAMM,

Petitioners,

BARAKA, LLC and CITY OF ANACORTES,

Respondents.

)

SHB NO. 02-001

ORDER DENYING SUMMARY JUDGMENT

On March 12, 2002, Baraka, LLC (“Baraka”) and the City of Anacortes (“Anacortes”) filed a motion for summary judgment concerning the compliance of the Anacortes Shorelines Master Program (“ASMP”) with the Shoreline Management Act (“SMA”). Simultaneously, Baraka filed two additional motions for summary judgment. The first asked whether the shoreline permit issued to it by Anacortes provides overriding considerations of public interest to allow buildings to be built over 35 feet in height on the shorelines of the state. The second asked whether there are a substantial number of residential views of the shoreline obstructed by the proposed permit. On March 13^th, Richard Grill and Annette Tamm (“Grill and Tamm”) filed a dispositive motion contending the ASMP, in effect prohibits the proposed buildings on the shoreline, due to RCW 90.58.320 and a virtually identical Department of Ecology regulation, WAC 173-27-140(2). Grill and Tamm opposed each of the respondents’ motions.

Attorney Alan R. Sanders, represented Baraka. Ian Munce, City Attorney, represented Anacortes. Attorney Gerald Steel, represented Grill and Tamm.

The board was comprised of: Robert V. Jensen, presiding, Kaleen Cottingham, Bill Lynch, Judy Wilson, Larry Frazier and Phyllis Shrauger.

The board received and reviewed the following pleadings in regard to the motion:

1. Respondents’ Motion for Partial Summary Judgment, including Affidavits of Ian Munce and Gale Brink;

2. Petitioners’ Dispositive Motion on Legal Issue 2;

3. Petitioners’ Response to Respondents’ Motion for Summary Judgment, including Declaration of Gerald Steel and Attachments 1 and 2 (Declaration of Richard Grill with Exhibits 1-30);

4. Rebuttal to Petitioners’ Response to Respondents’ Motion for Partial Summary Judgment;

5. Respondent Baraka’s First Motion for Summary Judgment, including Affidavits of Ian Munce and Gale Brink;

6. Petitioners’ Response to Baraka’s First Motion for Summary Judgment, including Attachment 1;

7. Respondents’ Reply to Petitioners’ Dispositive Motion on Legal Issue Two;

8. Petitioners’ Reply on Legal Issue 2;

9. Rebuttal to Petitioners’ Response to Baraka’s First Motion for Summary Judgment, including Affidavit of Ian Munce;

10. Respondent Baraka’s Second Motion for Summary Judgment, including Affidavits of Ian Munce and Gale Brink;

11. Petitioners’ Response to Baraka’s Second Motion for Summary Judgment;

12. Rebuttal to Petitioners’ Response to Baraka’s Second Motion for Summary Judgment, including Affidavit of Gale Brink and Attachments; and

13. Second Declaration of Gerald Steel, Declaration of Annette Tamm, including Attachments A and 1-44, and Second Declaration of Richard Grill with Exhibit 1.

DISCUSSION

The board has no authority to rule on a facial challenge to a state regulation or a master program. Eldridge v. Stanwood, SHB 91-62 & 70, at 9 (1992). However, the board may consider the consistency of rules and master programs with the SMA, as applied to the facts of a particular case. Eastlake Community Council v. Seattle, SHB 90-8-9, Order of Partial Summery Judgment, Waiver and Dismissal at 4-5 (1994). Insofar as the parties ask this board to rule the ASMP is facially consistent with the SMA, we respectfully decline to opine. However, we conclude the current case represents an applied challenge.

Here we are unable to locate any finding in the ASMP, which equates to a finding of overriding public interest to support building heights above 35 feet. The question of whether there is such an overriding public interest is a factual determination, which is not ripe for summary judgment.

We reach the same result as to issue two from the pre-hearing order, which asks whether there are a substantial number of residential views in the area adjacent to the project, which will be obstructed by the proposed structures.

Next, we conclude the issue of whether the parking structure on the site is consistent with the ASMP, which in Section IV(A)(iv), is to assure shore-located activities provide sufficient parking in areas that avoid possible adverse impacts to water quality or shoreline views, raises genuine issues of material fact, which compel us to deny summary judgment on this issue as well.

Finally, we note both Grill and Tamm, as well as Anacortes, have filed sworn statements from their attorneys on the facts of the case. We caution the parties to observe Rule of Professional Conduct (“RPC”) 3.7, which prohibits a lawyer from acting as an advocate at a trial in which he is likely to be a witness, except in limited situations. None of the limited situations listed in the rule have been shown to apply here.

The issues in this case are:

1. Does the Anacortes Shoreline Management Substantial Permit No. 260 comply with RCW 90.58.320 that states:

No permit shall be issued pursuant to this chapter for any new or expanded building or structure of more than thirty-five feet above average grade level on shorelines of the state that will obstruct the view of a substantial number of residences on areas adjoining such shorelines except where a master program does not prohibit the same and then only when overriding considerations of the public interest will be served.

2. Is the adoption of RCW 90.58.320 and WAC 173-27-140 as part of the ASMP 2000 sufficient to implement the prohibition that:

or is the requirement “only when overriding considerations of the public interest will be served” applicable to the present permit?

3. In consideration of Section 6 of the ASMP 2000, does Anacortes Shoreline Substantial Development Permit No. 260 comply with the following provision of the ASMP 2000:

a. Section IV(A)(iv): Assure that shore located activities provide sufficient parking in areas that avoid possible adverse impacts to water quality or shoreline views.

RCW 90.58.320 provides:

III

This statute is ancillary to, but does not supplant the policy statement in RCW 90.58.020, which mandates: “In the implementation of this policy the public’s opportunity to enjoy the physical and aesthetic qualities of natural shorelines of the state shall be preserved to the greatest extent feasible consistent with the overall best interest of the state and the people generally.”

This policy protects water views of Puget Sound, even though the immediate land and water interface may not be a natural shoreline. Allegra Development Co. v. Seattle, SHB 99-09 & 09, at 17 (1999).

Baraka and Anacortes argue Anacortes found, by adopting the ASMP, there was an overriding public interest in allowing the maximum height of structures on the shorelines in question, to exceed 35 feet. Grill and Tamm make their own motion for summary judgment on this issue. They refer to Appendices G and I to the ASMP, which apparently quote RCW 90.58.320, and its regulatory counterpart (WAC 173-27-140(2), as the bases for their argument the ASMP prohibits the heights of structures to be raised above 35 feet on the shorelines in question. We are not persuaded by this argument.

VII

We are, however, unable to locate any finding in the ASMP, to the effect there is an overriding public interest in increasing the maximum allowable shoreline heights above 35 feet. Rather, the question of overriding public interest arises when an applicant proposes to place structures on the shoreline in excess of 35 feet in height. It is a question that must be decided on a case-by-case basis. Thus, we deny Baraka and Anacortes’ motion for partial summary judgment on conformance of the ASMP to the SMA, as applied, because there are genuine issues of material fact, which the board must first decide.

VIII

Next, Baraka contends the proposed substantial development benefits the public interest, which overrides the considerations of view from residences near the development. Baraka submits a rebuttal affidavit of Ian Munce, City Attorney, in which Mr. Munce purports to supply findings of overriding public interest for the Baraka project. We note this affidavit was written by the attorney defending Anacortes. Insofar as this constitutes testimony, it appears to violate CPR 3.7, which generally precludes a lawyer from advocating for a client in a case where the attorney is likely to appear as a witness. Secondly, this affidavit is submitted in rebuttal. It is not proper to raise new issues in rebuttal, for two reasons: first, it would give the non-moving party no opportunity to respond; second, nothing in Civil Rule for Superior Court 56(c) allows a party to raise additional issues, other than in the motion and memorandum in support of the motion. R.D. Merrill Co. v. Pollution Bd., 137 Wn.2d 118, 147, 969 P.2d 458 (1999). Here the attempt by the moving party to add findings to the record from the proceedings below, on rebuttal, is a new argument, which we may not consider in this motion. Further, much of the affidavit purports to make findings regarding Anacortes’ consideration of the question of overriding public interest in regard to adoption of the ASMP. This attempt at demonstrating the legislative history of the ASMP is not relevant to this motion, which concerns the overriding public interests of Baraka’s project in relation to obstruction of residential views. We have previously determined the issue of whether the ASMP is consistent with the SMA, as applied to the facts of this case, remains for trial. Finally evidence of legislative intent is only relevant where legislative intent is not apparent from the master program. Eastlake Community Council v. Seattle, 64 Wn. App.273, 281, 823 P.2d 1132 (1992). There has been no showing of an intent in the language of the ASMP to demonstrate Anacortes made a generic finding of overriding public interest to justify setting maximum building heights in certain shoreline areas, above 35 feet.

Baraka next moves for summary judgment, arguing the proposal would not obstruct the views from a substantial number of residences on areas adjoining the project.

Baraka does not contend the project will not affect views from residences in adjoining areas. Rather Baraka argues there is not a view obstruction from a substantial number of residences. Grill and Tamm have submitted substantial photographic documentation in support of their contrary view.

We observe, Gerald Steel, attorney for Grill and Tamm has submitted a declaration, declaring he is a professional engineer, with qualifications as an expert witness to “evaluate the methods, procedures, and results of Petitioners’ visual study included in the Declaration of Annette Tamm and the Second Declaration of Richard Grill.” As we observed above, this portion of the affidavit appears to violate CPR 3.7; therefore, we have not considered it.

Baraka contends the board should not consider territorial views, which it defines as “views from some portion of the real property where a residence is located and not a view from the residence itself.” Baraka cites no authority for this proposition, other than the statutory language. Taken by itself, the language of the statute is to be liberally construed to protect the shorelines as fully as possible. Buechel v. Department of Ecology, 125 Wn.2d 196, 203, 884 P.2d 910 (1994); RCW 90.58.900. In light of this rule of statutory construction, and the policy of RCW 90.58.020, which protects the public’s opportunity to enjoy the aesthetic qualities of the natural shorelines of the state to the greatest extent feasible, we do not view the statutory reference to residences in RCW 90.58.320, as limiting the protection of views in the ASMP, or the SMA, to those from residences, as opposed to the remainder of the property.

XII

We leave for the hearing, a consideration of whether a substantial number of residences would have view obstruction, as a result of the proposed shoreline structures.

XIII

Baraka finally moves for summary judgment on issue three, regarding compliance of the proposed project with the parking requirements of the ASMP, Shoreline Goals and Objectives, Section IV(A)(iv). That language declares an objective of the ASMP is to “[a]ssure that shore located activities provide sufficient parking in areas that avoid possible adverse impacts to water quality or shoreline views.” This provision is designed to protect views from parking. It is consistent with this board’s earlier holding that parking spaces do not constitute a use dependent upon the shoreline. League of Women Voters v. King County, SHB 13 (1972). We conclude there are genuine issues of material fact regarding the view impacts, which must be reviewed at the hearing, before the board is able to decide issue three. Therefore, we decline to grant summary judgment on it.

XIV

Based on the foregoing analysis, we issue the following:

ORDER

1. Baraka and Anacortes’ motion asking us to rule the ASMP is facially consistent with RCW 90.58.320, is denied.

2. Baraka’s and Grill and Tamm’s motions requesting a ruling, without reference to the view impacts arising from this proposal, which would allow the proposed structures in the shorelines to exceed 35 feet in height, are denied.

3. Baraka’s motion requesting a ruling a substantial number of views would not be obstructed from residences located in the areas adjoining the shoreline where the proposal would be located, is denied.

4. Baraka’s motion requesting an order concluding the proposed parking garage is consistent with the ASMP Goals and Objectives, Section IV(A)(iv), is denied.

DONE this 8th day of May 2002.

SHORELINES HEARINGS BOARD

ROBERT V. JENSEN, Presiding

KALEEN COTTINGHAM, Member

WILLIAM H. LYNCH, Member

JUDY WILSON, Member

LARRY K. FRAZIER, Member

PHYLLIS SHRAUGER, Member

S 02-001 SJ