Olympic Stewardship Foundation v. Environmental & Land Use Hearings Office Ex Rel. Western Washington Growth Management Hearings Board
199 Wash. App. 668
| Wash. Ct. App. | 2017Background
- Jefferson County updated its Shoreline Master Program (Master Program) through a multi-year process (2005–2014) including an extensive Shoreline Inventory (SI) and a Cumulative Impacts Analysis (CIA); Department of Ecology (DOE) provided review and conditional approval before final DOE approval in Feb. 2014.
- Petitioners (Olympic Stewardship Foundation (OSF), Citizens’ Alliance for Property Rights (CAPR), and Hood Canal Sand & Gravel (S&G)) challenged various Master Program provisions to the Western Washington Growth Management Hearings Board; the Board upheld the Program and petitioners appealed to the Court of Appeals (direct review).
- Major contested provisions included: designation of critical or conservancy areas, a uniform 150-foot shoreline buffer, “no net loss” and restoration requirements tied to permit approvals, provisions said to be vague or to create de facto prohibitions, and a prohibition of mining in conservancy-designated shoreline areas (affecting S&G’s proposed pit-to-pier marine transport).
- The administrative record (SI, CIA, other studies) summarized ecological sensitivities, habitat data (including salmonid and shellfish areas), and cited literature on buffer efficacy; County relied on these materials to justify buffer widths and protective rules.
- The Court applied the statutory review framework under the Shoreline Management Act (SMA), Master Program guidelines (WAC ch. 173-26), the Growth Management Act (GMA) review role of the Board, and APA judicial-review standards (substantial-evidence, arbitrary-and-capricious, and de novo law review where applicable).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Board misinterpreted SMA as prioritizing environmental protection over private property | OSF: Board wrongly treated property rights as secondary and misread SMA scope | DOE/County: SMA and guidelines prioritize shoreline protection; Samson and other precedent support this balance | Court: No error; SMA policy supports protecting shorelines and prioritizing public interest consistent with authority cited |
| Validity of incorporating County Critical Areas Ordinance (CAO) into Master Program | OSF: Incorporation occurred without DOE review and unduly restricts uses | County/DOE: Incorporation permitted if consistent with SMA/guidelines and no-net-loss requirements | Court: Upheld incorporation; petitioners failed to show inconsistency or lack of DOE review support |
| Whether 150-foot standard shoreline buffer is supported by science and permitted by law | OSF/CAPR: SI and CIA insufficient; buffer choice arbitrary, no field verification, and exceeds necessity | County/DOE: SI/CIA and cited literature provided adequate scientific basis; county may adopt buffers within evidentiary ranges | Court: Substantial evidence supports buffers; guideline/statutory provisions do not require a stricter ‘‘necessity’’ test |
| Lawfulness of no-net-loss and restoration permit requirements | OSF: No-net-loss as applied forbids development; minimization standard should control; restoration conditions exceed SMA and burden property | County/DOE: No-net-loss is adopted in statute and guidelines; restoration goals and permit conditions are authorized and consistent with SMA/guidelines | Court: No-net-loss and restoration provisions consistent with SMA and WAC; prohibiting proposals that cause net loss is lawful |
| Vagueness and delegation (due process) challenges to Master Program language | CAPR: Certain terms and liberal-construction clause render rules unconstitutionally vague and subject to arbitrary enforcement | County/DOE: Program language is sufficiently definite; Board lacked jurisdiction over constitutional claims and rules are lawful | Court: Rejected vagueness claim; challengers failed to meet high burden to prove unconstitutional vagueness |
| Alleged de facto prohibitions and substantive due process | CAPR: Permit conditions and buffers effectively prohibit common uses (beach access, docks, armoring), infringing property rights | County/DOE: Uses remain allowed with conditions; regulatory limits rationally related to legitimate state interest | Court: No de facto prohibition shown; rational-basis review applicable (Amunrud) and Program survives substantive due process challenge |
| Scientific sufficiency for mining prohibition in conservancy areas | S&G: Prohibition on mining/marine transport in conservancy areas lacks scientific/technical support | County/DOE: SI and CIA documented sensitive resources (salmonid habitat, shellfish beds, feeder bluffs) and supported conservancy designation and restrictions | Court: Substantial evidence supports conservancy designation and mining limits; no SMA/guideline violation shown |
| Adequacy of public notice and participation for mining limitation changes | S&G: County inserted mining prohibition after public comment closed, violating procedural notice and due process | County/DOE: Drafts allowing mining were circulated; public comment opportunities existed; subsequent adjustments responsive to comments are lawful | Court: S&G had opportunity to comment on mining in drafts; procedural requirements satisfied; no due process violation |
Key Cases Cited
- Citizens for Rational Shoreline Planning v. Whatcom County, 172 Wn.2d 384 (Wash. 2011) (explains SMA Master Program approval role and DOE review effect)
- Samson v. City of Bainbridge Island, 149 Wn. App. 33 (Wash. Ct. App. 2009) (property rights are secondary to SMA shoreline protection aim in context)
- Lund v. Dep’t of Ecology, 93 Wn. App. 329 (Wash. Ct. App. 1998) (SMA protective purpose discussions)
- Buechel v. Dep’t of Ecology, 125 Wn.2d 196 (Wash. 1994) (deference to agency expertise in shoreline regulation)
- Quadrant Corp. v. Central Puget Sound Growth Mgmt. Hr’gs Bd., 154 Wn.2d 224 (Wash. 2004) (burden of proof in challenges to agency actions and deference principles)
- Amunrud v. Board of Appeals, 158 Wn.2d 208 (Wash. 2006) (limits on substantive due process analysis; rational-basis standard where no fundamental right implicated)
- Guimont v. Clarke, 121 Wn.2d 586 (Wash. 1993) (facial takings threshold and test for regulatory takings challenges)
- Preserve Our Islands v. Shorelines Hearings Board, 133 Wn. App. 503 (Wash. Ct. App. 2006) (distinguishing water-dependent vs. water-related uses in shoreline context)
- KAPO v. Central Puget Sound Growth Mgmt. Hr’gs Bd., 160 Wn. App. 250 (Wash. Ct. App. 2011) (discusses incorporation of critical areas and dedication/impact-fee analogies)