[No. 63901-3-I. Division One. November 9, 2009.]
September 10, 2009, Oral Argument
Douglas E. Jensen; and Robert M. McKenna, Attorney General, and Laura Watson, Assistant, for appellants.
Craig A. Ritchie (of Ritchie Law Firm, PS), for respondents.
¶1 COX, J. -- The sole issue in this case is whether the shorelines hearings board has subject matter jurisdiction to review conditions to a substantial development permit where those conditions arise from Clallam County's critical areas ordinance. Because the critical areas ordinance is not a part of the County's shoreline master program, the shorelines hearings board lacks jurisdiction to consider issues regarding that ordinance. We reverse the superior court and reinstate the decision of the shorelines hearings board.
¶2 In 2004, the County reviewed the first application to construct a residence submitted by Dr. Eloise Kailin and the Harvey Kailin Trust, whose trustee is Dr. Kailin (collectively Dr. Kailin). That proposal included a request for an exception to the County's critical areas ordinance. The County denied the requested exception. An appeal to the superior court followed. Review is still pending, as is a previous appeal to the shorelines hearings board based on the first proposal. The parties agreed that a new proposal would be submitted in support of a request for approvals. This second proposal is the subject of this appeal.
¶3 The unchallenged findings of the shorelines hearings board state the relevant factual and procedural background for this appeal. Dr. Kailin proposes to build a single family residence within 200 feet of the shoreline of Sequim Bay, Clallam County. The proposed building site lies within the "Clallam County Shoreline Master Program Rural Shoreline Environment." The residence is to include two bedrooms and bathrooms on one floor, with two more bedrooms and bathrooms and a large area of additional living space on the second floor.
¶4 The County approved the shoreline substantial development permit, subject to approval of the reasonable use exception required for wetland buffers under the County's critical areas ordinance. ¶5 Although the buffer requirement is contained in the County's critical areas ordinance, it is not contained in the County's shoreline master program. ¶6 Dr. Kailin then petitioned the shorelines hearings board for review of the County's decision. Dr. Kailin raised several issues on appeal, including the County's failure to grant a critical areas ordinance reasonable use exception to her application, as presented. The board upheld the substantial development permit, as written. As to the reasonable use exception, the board concluded that it lacked subject matter jurisdiction "to address, grant, or deny a reasonable use exception for intrusion into a wetland buffer requirement" of the County's critical areas ordinance. ¶7 Dr. Kailin petitioned for review of the shorelines hearings board decision by the Clallam County Superior Court. Citing Futurewise v. Western Washington Growth Management Hearings Board, ¶8 The County and the Department of Ecology appeal. Dr. Kailin did not cross-appeal. SUBJECT MATTER JURISDICTION OF SHORELINES BOARD ¶9 The Department and the County argue that the shorelines hearings board properly decided that it lacked subject matter jurisdiction to review conditions based on the County's critical areas ordinance because the ordinance is not incorporated into the County's shoreline master program. [1-3] ¶10 Judicial review of a final administrative decision, including those by the shorelines hearings board, is governed by the Administrative Procedure Act (APA), chapter 34.05 RCW. [4] ¶11 The shorelines hearings board is a quasi-judicial agency created by RCW 90.58.170. The board's authority is statutorily limited by the following key provisions: (1) "The shorelines hearings board may adopt rules and regulations governing the administrative practice and procedure in and before the board." (2) "Any person aggrieved by the granting, denying, or rescinding of a permit on shorelines of the state pursuant to RCW 90.58.140 may . . . seek review from the shorelines hearings board . . . ." (3) "Any person may appeal any rules, regulations, or guidelines adopted or approved by the department within thirty days of the date of the adoption or approval. The board shall make a final decision . . . ." (4) "The department's decision to approve, reject, or modify a proposed master program or master program amendment by a local government not planning under RCW 36.70A.040 [Growth Management Act (GMA), chapter 36.70A RCW,] shall be appealed to the shorelines hearings board . . . ." [5, 6] ¶12 Here, the issue before this court is a narrow legal issue: whether the shorelines hearings board has subject matter jurisdiction to address a reasonable use exception from the County's critical areas ordinance where that ordinance is not a part of the County's shoreline master program. For the following reasons we conclude that the board does not have such subject matter jurisdiction. ¶13 Historically, both the Shoreline Management Act of 1971 (SMA), chapter 90.58 RCW, and the GMA, chapter 36.70A RCW, could bear on a proposed development on or near a "critical area" located within a shoreline area. In 2003, the legislature amended the SMA and GMA by enacting "AN ACT Relating to the integration of shoreline management policies with the growth management act; amending RCW 90.58.030, 90.58.090, 90.58.190, and 36.70A.480 . . . ." ¶14 Dr. Kailin does not argue that prior to the 2003 enactment of ESHB 1933 the shorelines hearings board had subject matter jurisdiction to review a reasonable use exception under the County's critical areas ordinance. A plain reading of the above numbered jurisdictional provisions (1), (3), and (4) shows that none of them apply to this case. Thus, none of those provisions would support such an argument. ¶15 Because this is a case involving a shoreline substantial development permit, we examine former RCW 90.58.180(1) (1997), which the above provision number (2) succeeded in 2003. Former RCW 90.58.180(1) provided, in relevant part, Any person aggrieved by the granting, denying, or rescinding of a permit on shorelines of the state pursuant to RCW 90.58.140 may seek review from the shorelines hearings board by filing a petition . . . . RCW 90.58.140 provides, in relevant part, (1) A development shall not be undertaken on the shorelines of the state unless it is consistent with the policy of this chapter and, after adoption or approval, as appropriate, the applicable guidelines, rules, or master program. (2) A substantial development shall not be undertaken on shorelines of the state without first obtaining a permit from the government entity having administrative jurisdiction under this chapter. A permit shall be granted: . . . . (b) After adoption or approval, as appropriate, by the department of an applicable master program, only when the development proposed is consistent with the applicable master program and this chapter. ¶16 Reading these statutes together, we conclude that they granted the shorelines hearings board subject matter jurisdiction to consider appeals of aggrieved persons involving shoreline permits where consistency with the SMA and/or an applicable shoreline master program was at issue. The scope of subject matter jurisdiction did not exceed these express limits because no other standards regarding substantial development permits are mentioned in the statute. ¶17 Here, the County approved Dr. Kailin's substantial development permit, subject to compliance with the County's critical areas ordinance. ¶18 The next question is whether the 2003 enactment of ESHB 1933 had any effect on the jurisdictional limits of former RCW 90.58.180(1) and RCW 90.58.140. We conclude that it did not. ¶19 As we previously observed in this opinion, the legislature amended the SMA and GMA in 2003 by enacting "AN ACT Relating to the integration of shoreline management policies with the growth management act; amending RCW 90.58.030, 90.58.090, 90.58.190, and 36.70A.480 . . . ." ¶20 More importantly, the only amendment the legislature has made to former RCW 90.58.180(1) in recent years was a 2003 amendment adding the below emphasized exception: Any person aggrieved by the granting, denying, or rescinding of a permit on shorelines of the state pursuant to RCW 90.58.140 may, except as otherwise provided in chapter 43.[21L] RCW (sections 1 through 15 of this act), seek review from the shorelines hearings board . . . . Had the legislature intended to expand the scope of subject matter jurisdiction of former RCW 90.58.180(1) by this 2003 amendment, it could have done so. It did not. ¶21 We conclude that there was no subject matter jurisdiction for the shorelines hearings board to consider matters not within a shoreline master program before the 2003 enactment of ESHB 1933. Moreover, that amendment did not change the jurisdiction of the board. The 2003 amendment of former RCW 90.58.180(1), which we have quoted above, did nothing to expand the subject matter jurisdiction of the board. ¶22 We note that the superior court reviewing the shorelines hearings board decision in this case did not rely on any of the jurisdictional statutory provisions that we have discussed in reaching its decision. Rather, the court primarily relied on the plurality opinion in Futurewise, which states the opinion of four justices on the meaning of enacted ESHB 1933. ¶23 As we just concluded in this opinion, RCW 90.58.180(1) clearly expresses a legislative intent that subject matter jurisdiction in the shorelines hearings board does not extend to consideration of critical areas matters that are not within a shorelines master program. The related question, the one on which the parties here differ, is the effect, if any, of the Futurewise decision on the subject matter jurisdiction of the shorelines hearings board. ¶24 In Futurewise, the city of Anacortes had long had a shoreline master program for its shoreline area. ¶25 The analysis of the lead opinion primarily centered on consideration of two provisions of ESHB 1933. The first provision states as follows: The legislature intends that . . . critical areas within the jurisdiction of the [SMA] shall be governed by the [SMA] and that critical areas outside the jurisdiction of the [SMA] shall be governed by the [GMA]. The other provision states as follows: As of the date the department of ecology approves a local government's shoreline master program adopted under applicable shoreline guidelines, the protection of critical areas as defined by RCW 36.70A.030(5) within shorelines of the state shall be accomplished only through the local government's shoreline master program and shall not be subject to the procedural and substantive requirements of this chapter [the GMA], except as provided in subsection (6) of this section. The lead opinion, signed by only four justices, concluded that "[c]ritical areas within the jurisdiction of the SMA are governed only by the SMA." ¶26 A fifth justice, Justice Madsen, concurred "in the result only." ¶27 Four justices dissented, concluding, "[I]t is clear our legislature intended to transfer management of critical areas in shorelines from the GMA to the SMA in an orderly, measured process and upon the approval of shoreline master plans that specifically protect critical areas." ¶28 It is clear from review of the lead and dissenting opinions that there is no majority rationale. The lead opinion is signed by only four of the nine justices on the court. Justice Madsen, who concurred in the plurality opinion in "result only," did not supply any rationale for her decision to join the majority. Thus, the only conclusion that we can draw from these facts is that five justices agreed that "[t]he decision of the trial court is reversed, and the decision of the Western Washington Growth Management Hearings Board upholding Anacortes is reinstated." [7-10] ¶29 "A plurality opinion has limited precedential value and is not binding on the courts." ¶30 The Department urges us to adopt the growth management board's decision and apply it to this case. This is based on the fact that five justices of the supreme court agreed to reinstate the decision of the growth management board. But the rationale of the growth management board's decision is, to some extent, inconsistent with the analyses of both the lead opinion and the dissent in Futurewise. ¶31 At oral argument before this court, Dr. Kailin cited Koenig v. Pierce County ¶32 Moreover, Futurewise is distinguishable from Dr. Kailin's case. There, Anacortes adopted new critical areas standards under its GMA plan after the legislature enacted ESHB 1933. ¶33 Another distinction is that the issue of the shorelines hearings board's subject matter jurisdiction was not before the court in Futurewise. Nor was the court called upon to consider a challenge to a site-specific permitting decision that does not implicate the County's shoreline master program as in this case. ¶34 For these reasons, reliance on the lead opinion in Futurewise to provide assistance on the jurisdictional question now before us is singularly unhelpful. The trial court erred in doing so. ¶35 We note that as of this writing, two identically worded bills were introduced in the legislature, apparently in reaction to the supreme court's decision in Futurewise. House Bill 1653 was submitted to the House. ¶36 Dr. Kailin cites several cases for the proposition that her proposed development is entirely within the jurisdiction of the SMA and therefore subject to review by the shorelines hearings board. None of the cases she cites are persuasive. ¶37 In Kitsap Alliance of Property Owners v. Central Puget Sound Growth Management Hearings Board (KAPO), ¶38 In Harrington v. Spokane County, ¶39 In Twin Bridge Marine Park, LLC v. Department of Ecology, ¶40 The English Bay Enterprises, Ltd. v. Island County ¶41 In sum, none of the cases Dr. Kailin cites address the subject matter jurisdiction issue presented in this case. The controlling statutes support the conclusion that the shorelines hearings board does not have jurisdiction to review issues arising from critical areas ordinances that are not incorporated into shoreline master programs. The board correctly decided it had no subject matter jurisdiction in this case to address the matters it chose not to review. OTHER MATTERS ¶42 Dr. Kailin's remaining arguments fall outside the scope of the appeals of the Department and the County. They also seek affirmative relief. For these reasons, we decline to address these arguments. [11] ¶43 Dr. Kailin argues that the Department did not properly designate a wetland on her property. She asks this court to affirm the trial court and "also rule that no remand is needed to the Shoreline[s] Hearings Board because the critical areas ordinance of the County is inapplicable in Shorelines jurisdictions and that Ecology has designated no wetlands on the Kailin property which could be regulated by a critical areas ordinance." ¶44 "A notice of cross review is essential if the respondent 'seeks affirmative relief as distinguished from the urging of additional grounds for affirmance.' " ¶45 We reverse the superior court's decision and reinstate the decision of the shorelines hearings board. DWYER, A.C.J., and GROSSE, J., concur.