[No. 78462-1. En Banc.]
Argued March 22, 2007. Decided January 24, 2008.
[1] Environment — Shoreline Management — Judicial Review — Administrative Procedure Act — Applicability. Under RCW 90.58.180(3), the Administrative Procedure Act (chapter 34.05 RCW) governs judicial review of Shorelines Hearings Board decisions. [2] Administrative Law — Judicial Review — Appellate Review — Record — Superior Court Record — Additional Evidence. An appellate court's review of an agency adjudication that was first reviewed by a superior court generally is on the agency record without consideration of the superior court's findings of fact and conclusions of law, but where additional evidence was taken by the superior court under RCW 34.05.562, the appellate court will look to the superior court record. [3] Environment — Shoreline Management — Judicial Review — Appellate Review — Record on Review. An appellate court reviewing a Shorelines Hearings Board decision that was first reviewed by a superior court may consider the record that was made before the superior court if the superior court took additional evidence under RCW 34.05.562. [4] Administrative Law — Judicial Review — Question of Law — Application of Law to Facts. An administrative review agency's application of the law to a particular set of facts presents a question of law that an appellate court reviews de novo. [5] Environment — Shoreline Management — Enforcement — Authority — Department of Ecology — Local Land Use Decision. The Department of Ecology does not have statutory authority to directly review or to set aside a shoreline substantial development permit issued by a local jurisdiction having an approved shoreline management plan under the Shoreline Management Act of 1971 (chapter 90.58 RCW). Should the department wish to challenge the issuance of a locally issued substantial development permit, it must do so by means of a timely filed petition in superior court under the Land Use Petition Act (chapter 36.70C RCW). [6] Environment — Shoreline Management — Enforcement — Authority — Department of Ecology — Permit Issued by Local Agency — Effect. The Department of Ecology does not have the authority under the Shoreline Management Act of 1971 (chapter 90.58 RCW) to directly penalize a property developer for an alleged failure to comply with shoreline development permitting requirements if the development is authorized by a locally issued building permit that, in light of the circumstances under which it was issued, necessarily implies a determination that the development is consistent with already existing shoreline permits and that a further shoreline development permit is not required. Where the department fails to timely seek review of the local government's decision under the Land Use Petition Act (chapter 36.70C RCW), it may not collaterally challenge that decision by bringing an independent enforcement action against the property developer. [7] Environment — Shoreline Management — Development Permit — Additional Permit — Negative Determination — Local Agency — Challenge by Department of Ecology — Land Use Petition Act. When a local jurisdiction having an approved shoreline management plan under the Shoreline Management Act of 1971 (chapter 90.58 RCW) issues a building permit for a shoreline area that implicitly comprehends a determination that the development is consistent with already existing shoreline permits and that a further shoreline development permit is not required, the permit becomes valid and grants vested rights if no person, including the Department of Ecology, despite having reasonable notice of the issuance of the permit, timely challenges the decision to issue the permit under the Land Use Petition Act (chapter 36.70C RCW). [8] Building Regulations — Land Use Regulations — Judicial Review — Land Use Petition Act — Policy — Administrative Finality. The underlying rationale of the Land Use Petition Act (chapter 36.70C RCW) is that prolonged uncertainty is manifestly unfair to landowners who seek a final determination of their property's status. [9] Building Regulations — Land Use Regulations — Judicial Review — Land Use Petition Act — "Land Use Decision" — Reinstatement of Building Permit — After Further Environmental Review. A local jurisdiction's reinstatement of a suspended building permit for a shoreline area after issuing an addendum to a final environmental impact statement for the project constitutes a "land use decision" within the meaning of the Land Use Petition Act (chapter 36.70C RCW), thereby rendering the decision subject to review under the act. FAIRHURST, J., concurs by separate opinion; OWENS, MADSEN, and CHAMBERS, JJ., dissent by separate opinion; STEPHENS, J., did not participate in the disposition of this case. Nature of Action: A business owner that was issued development permits by a county to expand its business near a shoreline area sought judicial review of a Shorelines Hearings Board decision affirming cease and desist orders and penalties imposed by the Department of Ecology for failing to obtain a new shoreline development permit before completing the expansion project. The board ruled (1) that the expansion project constituted a substantial development under the Shoreline Management Act of 1971, was not authorized by the business owner's existing building permits and shoreline development permit, and was wrongfully undertaken without a new shoreline development permit; (2) that the business owner violated its settlement agreement with the department, which was reached after the department issued the orders and assessed the penalties, by resuming development without acquiring a new shoreline development permit; (3) that the department's decision not to appeal the local government's building permits under the Land Use Petition Act did not prohibit the department from issuing a shoreline enforcement order and imposing penalties; and (4) that the business owner's reliance on the permits issued by the county did not relieve it of its obligation to pay the penalties imposed by the department. Superior Court: The Superior Court for Skagit County, No. 02-2-01572-0, Susan K. Cook, J., on April 22, 2004, entered a judgment reversing the decision of the Shorelines Hearings Board, ruling that the county's issuance of the building permits necessarily required a determination that the project was encompassed by the business owner's existing shoreline development permit; that a new shoreline development permit was unnecessary; and that the department could not penalize the project without having challenged the county's issuance of the development permits under the Land Use Petition Act. Court of Appeals: The court affirmed the judgment at 130 Wn. App. 730 (2005), holding that the department's challenge to the county's inferential decision that the expansion project did not require a new shoreline development permit should have been made by means of a timely filed petition under the Land Use Petition Act following the county's issuance of the building permits. Supreme Court: Holding that the Department of Ecology could not collaterally challenge the county's issuance of the building permits by acting directly against the business owner, the court affirms the decision of the Court of Appeals and the judgment. Robert M. McKenna-, Attorney General, Jay D. Geck-, Deputy Solicitor General, and Thomas J. Young-, Assistant Attorney General, for petitioner. Craig D. Magnusson- (of Magnusson Law Office, PS) and John T. Henry- (of Oles Morrison Rinker & Baker, LLP), for respondents. Kristopher I. Tefft -on behalf of Association of Washington Business, amicus curiae. Timothy M. Harris-, Andrew C. Cook-, and Julie M. Sund- on behalf of Building Industry Association of Washington, amicus curiae. En Banc ¶1 J.M. JOHNSON, J. — While this case involves a protracted dispute between the parties, Department of Ecology and Twin Bridge Marine Park, LLC, the greater underlying issue is a dispute over regulatory authority between Ecology and Skagit County (County). Twin Bridge is a dry-storage marina that has been properly permitted by local, state, and federal agencies after years of litigation. At argument, Ecology conceded there were no continuing environmental concerns. However, development of Twin Bridge's property has exacerbated interpretive differences between these two powerful and competing governmental entities. The Shoreline Management Act of 1971 (SMA), chapter 90.58 RCW, defines state and local authority to regulate. When disagreements over property development arise between these two entities that exercise regulatory powers under the SMA, private citizens must not be forced to choose between conflicting edicts. ¶2 Where Ecology has reasonable notice of a final land use decision by the local permitting authority, it must pursue collateral attack of that decision through the Land Use Petition Act (LUPA), chapter 36.70C RCW. This is a well established principle of Washington law that gives closure and clarity to private property owners who wish to develop their land and to interested citizens. In the current case, Ecology's disagreement with the County over county permits cannot be visited on Twin Bridge, which properly relied on the County's final land use decision. Ecology had sufficient notice to resolve any dispute with the County in court, including an actual challenge filed by Anacortes under LUPA, but chose not to participate. We affirm both the trial court and the Court of Appeals. FACTS ¶3 Twin Bridge owns an 11 acre piece of property in Skagit County near the Swinomish Channel. In 1975, the County approved a final environmental impact statement (FEIS) for a proposal to build a 960 square foot office and 4,000 square foot warehouse on the property, which would have included marine facilities. Administrative R. (AR) Ex. R-1. In 1982, Twin Bridge obtained two shoreline substantial development permits from the County. There has been much confusion at the Shorelines Hearings Board (Board) and trial court level regarding the correct characterization of these two permits. Clerk's Papers (CP) at 172, 192 (permits are titled as "shoreline substantial development/conditional use"). We accept the superior court and Court of Appeals determination that the primary nature of the permits was substantial development. ¶4 Permit 7-82 (AR Ex. R-3) allowed for the placement of approximately 90,000 yards of landfill on the site. Permit 15-86 (AR Ex. R-6) allowed for the hydraulic dredging of approximately 40,000 yards of material. ¶5 Twin Bridge decided to convert the business into a dry-storage marina facility. The proposed facility was a dry-stack marina with a 350 boat uplands storage capacity, including buildings, a reinforced concrete pad, and a large forklift for moving boats from the water to the storage area. The County issued a FEIS addendum in 2000, modifying the 1975 FEIS, and determined the revised dry-land marina development was "insignificant and does not have a probable significant adverse impact on the environment." AR Ex. R-40. The County then issued two amended building permits for the project, one of which allowed for a building approximately 58,000 square feet. The city of Anacortes appealed the County's issuance of building permits under LUPA, but Ecology did not intervene or join the appeal, even though it had notice of the development and challenge. ¶6 When construction began pursuant to the permits, Ecology issued a stop work order and ordered Twin Bridge to obtain a new substantial development shoreline permit. Twin Bridge did not stop work, and Ecology issued a $17,000 penalty. Twin Bridge appealed to the Board. At approximately the same time, the Skagit County hearing examiner suspended the two amended building permits on the grounds the County had reevaluated the project and decided to require a new substantial development permit. Twin Bridge then stopped work at the site. ¶7 Twin Bridge applied to the County for a new shoreline substantial development permit, which authorized the site as a marina with the related improvements. Ecology and Twin Bridge reached a settlement whereby Ecology withdrew the penalty. 1. Ecology hereby withdraws its Penalty Order No. 00 SEANR-1209 issued to Ken Youngsman [Twin Bridge] on or about June 21, 2000, subject to the following conditions: a. Mr. Youngsman shall continue to pursue in good faith his application for a new Shoreline Substantial Development Permit for the Twin Bridge Marine Park. b. In the event that Skagit County issues a Substantial Development Permit to Mr. Youngsman or his associates, Ecology reserves the right to appeal the permit to the Shorelines Hearings Board and to raise any issue therein. c. Mr. Youngsman, his associates, and contractors shall not resume work on the site until all required federal, state and local permits have been obtained. AR Ex. R-80. ¶8 Twin Bridge resumed construction at the site. As agreed, the County also processed Twin Bridge's application for the new shoreline development permit for construction authorized in the reinstated building permits. The final shoreline permit that resulted incorporated local, state, and federal permits for the site. However, Ecology refused to recognize the county permits, issued a second penalty of $17,000, and reinstated the earlier penalty of $17,000, for a total of $34,000 in penalties. ¶9 Twin Bridge completed construction on the marina pursuant to the County-issued building permits, received approval for its occupancy and operation from the County, and opened for business. Ecology then issued a third penalty against Twin Bridge for $25,000 and ordered the marina to cease and desist all operations until a new shoreline permit authorizing use and construction of the marina was obtained. Twin Bridge appealed the penalties to the Board. As noted above, Ecology no longer argues to cease operation or that there is any current violation of any environmental law or regulation. PROCEDURAL HISTORY ¶10 The Board held that Twin Bridge's marina constituted a new substantial development under the SMA, which required a new shoreline permit under RCW 90.58.140. This disregards the County-issued building permits, county environmental impact statement (EIS) surveys and prior substantial development permits. The Board ruled that both the upland and shoreline components of the marina fell under the SMA. Additionally, the Board ruled that Twin Bridge violated its settlement with Ecology by completing construction pending approval. The Board found that Ecology's failure to initiate a LUPA appeal (or join in the pending appeal) did not preclude penalties. Finally the Board found that Twin Bridge's reliance on the County's preexisting permits and subsequent building permits did not relieve its obligation to pay a total of $59,000 in penalties (two $17,000 penalties and the last $25,000 imposed postcompletion). See Pet. for Review, App. B. ¶11 Twin Bridge appealed the Board's decision to the superior court, which reversed the Board in its entirety. First, the superior court issued findings of fact and conclusions of law after it considered additional evidence, which included the 2003 County-issued substantial development permit. The court found that the preexisting permits were primarily substantial development permits. See CP at 428 (Finding of Fact (FF) 5). The court found that the County's issuance of the subsequent building permits and the new FEIS addendum amounted to county authorization for Twin Bridge's construction of the marina. ¶12 Additionally, the superior court held that Twin Bridge did not require any additional Ecology permit because the County's issuance of building permits necessarily included a determination that the project was already in compliance with the SMA (pursuant to the preexisting permits). STANDARD OF REVIEW [I]n reviewing adjudicative proceedings, review by an appellate court is to be on the agency record without consideration of the findings and conclusions of the superior court. The one exception is in regard to matters where the superior court takes additional evidence Waste Mgmt. of Seattle, Inc. v. Utils. & Transp. Comm'n, 123 Wn.2d 621, 633-34, 869 P.2d 1034 (1994) (citation omitted); see also RCW 34.05.558. ¶15 The two controlling statutes in this case are the SMA, with its division of authority between state and local government, and LUPA, which details the process necessary to challenge final land use decisions. ANALYSIS A. Washington Statutory Authority ¶16 At issue is whether Ecology can directly impose penalties under the SMA when a project has been constructed pursuant to valid building permits issued by the County after that County complied with applicable law (including the State Environmental Policy Act (SEPA), chapter 43.21C RCW). We hold that Ecology must challenge the valid county building permits through LUPA, as we held in Samuel's Furniture, 147 Wn.2d 440. In this case, the two County-issued building permits were based on preexisting substantial development permits and a related FEIS, together with a later FEIS addendum. Those permits are no longer challenged by Ecology. Thus, the fine amount of $59,000 remains the only issue in controversy. 1. Substantial Development Permits ¶17 Under the SMA, counties develop shoreline management plans and Ecology approves the county plan. Then, applications for actual permits are made to the counties (local or other governments), who determine compliance with their local plans. It is worthy of note here that while the County did comply with SEPA at each stage, and its decisions were supported by a FEIS, and later addenda, Ecology never undertook SEPA analysis. ¶19 Even Twin Bridge's county permits for the original business were primarily for substantial development as defined by the SMA. Any permit may, after a hearing with adequate notice to the permittee and the public, be rescinded by the issuing authority upon the finding that a permittee has not complied with conditions of a permit. If the department is of the opinion that noncompliance exists, the department shall provide written notice to the local government and the permittee. If the department is of the opinion that the noncompliance continues to exist thirty days after the date of the notice, and the local government has taken no action to rescind the permit, the department may petition the hearings board for a rescission of the permit upon written notice of the petition to the local government and the permittee if the request by the department is made to the hearings board within fifteen days of the termination of the thirty-day notice to the local government. (Emphasis added.) ¶20 Another factor, the Skagit County Shoreline Master Plan (SMP), also requires the holding that the preexisting permits were primarily substantial development. For example, permit 15-86 was issued under section 7.07 of the SMP (among others), which is titled "Marinas and Launch Ramps." Under section 7.07, in the rural shoreline designation, the SMP does not require a conditional use permit for a marina; it states "Marinas and boat launch ramps are permitted subject to the General and Tabular Regulations." AR Ex. R-102, at 7-40. Compare this language with the rural residential shoreline designation, which explicitly states, "Marinas are permitted as a conditional use subject to the General and Tabular Regulations." Id.; see also CP at 84, 88 (designating Twin Bridge as a "rural" classification within the SMP). The SMP has been in place since 1976 and was approved by Ecology as required by the SMA. Since a conditional permit was never required, then Twin Bridge cannot be held in violation of the SMP or the SMA. ¶21 We have held that the SMA does not give Ecology the authority to directly review the local government's decision to issue a substantial development permit. This court has previously said: Under the SMA, Ecology's primary role is to review and approve SMPs. RCW 90.58.080. In this sense, it is "reviewing" local government action. However, once an SMP has been approved, the SMA specifically grants local governments the exclusive power to administer the permit system. RCW 90.58.140(3). Nowhere in the statute is Ecology explicitly given the right to directly review a local government's decision regarding a substantial development permit. Samuel's Furniture, 147 Wn.2d at 455. Ecology argues that the dry marina exceeded the impact foreseen by the original permits. It is counterintuitive that a dry-storage facility would have more shoreline impact than a water marina. Further, the County had taken all the impacts into consideration because it had the benefit of two EIS's. In contrast, Ecology never performed its own environmental impact analysis and did not even substantively review Twin Bridge's later information submitted to the County for the 2000 addendum. CP at 389-90. Thus, Ecology could not have a "better" opinion on whether the expanded project would harm the ecosystem or even enough record for an informed opinion. The County, which commissioned the environmental impact statements—one in 1976 and then a recent supplement in 2000—and was involved in the city of Anacortes LUPA challenge, had the best available information. ¶22 The SMA gives local government the exclusive permitting authority and the County was in the best position to make this decision. Here, the County's characterization of the permits must control, especially when the County is the original permitting authority and is the only government agency to have performed environmental impact analysis on the disputed project. 2. Building Permits ¶24 Ecology argues that Twin Bridge's reliance on the county building permits was misplaced and Ecology should collect substantial fines. ¶25 Twin Bridge correctly argues that the County-issued building permits implicitly demonstrate that the permits it received were sufficient. See RCW 90.58.140. The County could not issue a building permit if the permits were in violation of the SMA or of the County's SMP. See WAC 173-27-140. Ipso facto, the County found that Twin Bridge's development was in total compliance with the existing law. If Ecology determined that the County's final land use decision (building permits) was improperly issued, then the agency is required to file an appeal under LUPA. We agree with the superior court conclusion that Twin Bridge could reasonably rely on the County's authority once a final land use decision was given and permits issued. See CP at 425. ¶26 In light of the statutory provisions, supra, the County's reinstatement of building permits signaled to Twin Bridge that it had obtained all permits necessary to begin construction. Skagit County's determination that no new or revised shoreline permit was necessary led to its issuance of building permits for the project and lifting of a previous notice of suspension (A-2). The issuance of building permits and the lifting of the suspension are final decisions reviewable under LUPA. They are not decisions that are subject to review by a quasi-judicial body such as the SHB [Shorelines Hearings Board] and thus are not exempt from LUPA. (SHB has authority to hear appeals only on decisions to grant, deny, or rescind a substantial development permit). CP at 425. ¶27 The Board erroneously relied upon a Court of Appeals decision in Samuel's Furniture, which this court subsequently overturned. CP at 27. In Samuel's Furniture, we held that Ecology must bring a collateral attack on a final local land use decision through LUPA. See Samuel's Furniture, 147 Wn.2d at 440. ¶28 The settlement agreement with Ecology required Twin Bridge to obtain appropriate permits before resuming construction. The appellate court correctly held that "the County made the determination that its [Twin Bridge] development was consistent with the County's shoreline master plan and Twin Bridge's existing shoreline permits when it issued the two building permits." Twin Bridge, 130 Wn. App. at 740 (citing Samuel's Furniture, 147 Wn.2d at 450). Therefore, Twin Bridge was justified in relying on reissue of its building permits. >B. Washington Case Law ¶29 The central holding in Samuel's Furniture applies where the local government authority disagrees with Ecology's determination of the shoreline boundary. Here, we are confronted with a related issue regarding which permits are required for development within the shoreline. We hold that Samuel's Furniture was correctly applied to the instant facts by both the trial court and appellate court. The reasoning of that case also applies. ¶30 In Samuel's Furniture, 147 Wn.2d at 440, we considered a jurisdictional dispute between Ecology and the city of Ferndale. We held that Ecology is required to file a LUPA challenge to a local government's issuance of a permit when the local government has independently determined that the project is not within the shoreline. Id. at 444. We held Ecology "cannot collaterally challenge the local government's determination that the project is not within the shoreline jurisdiction by bringing independent enforcement actions against the property owner or developer." Id. at 463. This definition of Ecology's regulatory power was central in Samuel's Furniture. A discussion of the facts and pertinent reasoning from that case is appropriate to guide future cases. ¶31 The city had determined that the business did not require a shoreline permit for expansion of its store because it would not encroach on the shoreline jurisdiction. Id. at 444. Acting under this analysis, the city issued a fill and grade permit along with a building permit. Id. at 445. In contrast, Ecology asserted that the project was within the shoreline area and required a substantial development permit. Id. As in Twin Bridge, the city had issued a stop work order, but after reviewing its SMP it determined the expansion was not within the shoreline jurisdiction and reinstated the building permit. Id. Ecology disagreed with this decision and informed Samuel's Furniture that it would be unable to obtain a substantial development permit. Id. at 445-46. ¶32 Samuel's Furniture appealed and the trial court granted its motion for summary judgment. Id. at 447. Division One of the Court of Appeals reversed the trial court, holding that the SMA gave Ecology the authority to review local government decisions pursuant to RCW 90.58.050, and a local government decision was not final for the purposes of LUPA. Samuel's Furniture, Inc. v. Dep't of Ecology, 105 Wn. App. 278, 285, 19 P.3d 474 (2001). This court granted review and reversed the Court of Appeals. ¶33 This court held that "[b]ecause local governments are given the exclusive authority to administer the permit system, RCW 90.58.140(3), their permit decisions may also determine whether development is within the jurisdiction of the SMA." Samuel's Furniture, 147 Wn.2d at 457. In Samuel's Furniture, the local permitting authority was the City. Although we noted that Ecology may disagree with local government, "Ecology [must] follow the proper procedures when challenging that decision." Id. at 456 n.14. The procedures are specified in LUPA. ¶34 Ecology's role and that of the local government authority can be fairly reconciled within the strictures of both the SMA and LUPA. This court held that [b]y filing a LUPA petition challenging a local government decision to allow a land use action that is in conflict with the SMP or the SMA, Ecology would be enforcing the provisions of the SMA. Requiring Ecology to follow the procedures established in LUPA merely provides structure and finality to the enforcement process. Id. at 457. We further held that Ecology must use LUPA to challenge the city decision because the SMA does not provide "Ecology with enforcement authority under RCW 90.58.210 [to] enable Ecology to reverse local government decisions." Id. at 456. ¶35 The instant case is only slightly different. In this case, the County reissued the building permits for development within the shoreline area, necessarily deciding that the new activities were allowed by the County's SMP and implemented ordinances. We hold that the permitting decision was exclusively the County's (absent a LUPA appeal) and Ecology cannot directly enforce its own differing interpretation of a county SMP. ¶36 Ecology argues that Samuel's Furniture is not applicable because this property is within the shoreline boundary. However, we find Samuel's Furniture persuasive because of the extensive analysis of the roles the legislature provided to Ecology and local government under the SMA. See Resp'ts' Suppl. Br. at 3, 11. Under the SMA, the County and not Ecology makes the threshold determination of what shoreline substantial development permits are required under the County's SMP. C. A LUPA Appeal Was the Appropriate Procedure To Challenge the Twin Bridge Permits ¶38 Under LUPA, no "person" is exempt from its provisions when challenging a final land use decision by a local authority having jurisdiction. Ch. 36.70C RCW. A "person" includes Ecology. RCW 36.70C.020(3). A final land use decision is a "final determination by a local jurisdiction's body or officer" regarding the improvement or development of real property. RCW 36.70C.020(1). ¶39 This court has previously analyzed LUPA and its stated purpose of establishing uniform and expedited judicial review of local decisions. See, e.g., Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wn.2d 169, 4 P.3d 123 (2000) (a challenge to a Chelan County decision concerning residential development permits under the Growth Management Act, chapter 36.70A RCW, must be brought under LUPA); Skamania County v. Columbia River Gorge Comm'n, 144 Wn.2d 30, 26 P.3d 241 (2001) (construing a federal act, 16 U.S.C. § 544m(a), no collateral attack on a local final land use decision can be made when no timely appeal is filed); Chelan County v. Nykreim, 146 Wn.2d 904, 52 P.3d 1 (2002) (declaratory action by county overturning a prior boundary line adjustment must be filed through LUPA). ¶40 In the current case, LUPA plainly applies because the County was the local permitting authority within the statute. Ecology had notice of the County's reinstating the building permits and chose not to challenge it. We have held in other context that "approval of the rezone became valid once the opportunity to challenge it passed." Wenatchee Sportsmen, 141 Wn.2d at 181. ¶41 Here, Ecology had reasonable notice, did not appeal, and the building permits became valid and the right to construct vested due to Ecology's inaction. In another decision in this court, the Columbia River Gorge Commission echoed Ecology's claim of independent enforcement authority. Skamania County, 144 Wn.2d at 44 (asserting "plenary powers under the Act to take whatever actions that it determines are necessary, . . . to ensure the Act [is] not violated"). This court roundly rejected the claim to exempt the commission from LUPA appeal time frames. Id. at 57. Finally, Nykreim, 146 Wn.2d at 933, applied the LUPA time frame to Chelan County's attempted nullification of its own determination of a boundary line adjustment and subsequent permits. Thus, an agency cannot even revoke its own final land use decision unless it has appealed in the LUPA allotted time frame. Id. This holding emphasizes the value of finalizing land use decisions. Requiring Ecology to file a LUPA petition to contest a local government's decision to allow a land use action would also serve the State's " 'strong public policy favoring administrative finality in land use decisions.' " Samuel's Furniture, 147 Wn.2d at 458 (quoting Skamania County v. Columbia River Gorge Comm'n, 144 Wn.2d 30, 48, 26 P.3d 241 (2001)). Blanket enforcement authority by Ecology would conflict with the public policy favoring administrative finality, as a developer could be subject to enforcement by Ecology while relying in good faith on a local government's determination. Samuel's Furniture, 147 Wn.2d at 458. Twin Bridge, 130 Wn. App. at 741. Here, the County's reinstatement of building permits after an addendum to the EIS was a final land use decision. Ecology's position in the instant case is similar to the position it unsuccessfully argued in Samuel's Furniture, 147 Wn.2d at 459 ("Ecology's interpretation of the SMA would leave land owners and developers unable to rely on local government decisions—precisely the evil for which LUPA was enacted to prevent."). Requiring Ecology to file a LUPA challenge, pursuant to reasonable notice of the building permits, allows Ecology to challenge an improper permit decision. Ecology merely is required to comply with LUPA procedures. ¶43 Alternatively, Ecology argues that the LUPA argument from Samuel's Furniture is misapplied to the instant case because Ecology was challenging the adequacy of the underlying SMA permits. See RCW 90.58.140(10). ¶44 In sum, Skagit County made the determination that Twin Bridge's development was consistent with the County's SMP and Twin Bridge's existing shoreline permits when it issued the building permits. The disputed permits were substantial development permits and Ecology had no authority to issue fines based on compliance with a valid county permit. Moreover, once the building permits were reinstated, this was a final land use decision by the local permitting authority, and Ecology was required to file a LUPA challenge. CONCLUSION ¶45 The enforcement authority the legislature provided to Ecology under the SMA does not enable Ecology "to reverse local government decisions." Samuel's Furniture, 147 Wn.2d at 456. As the Court of Appeals correctly noted, if Ecology had such sweeping authority, "it would not need to appeal permit decisions to the Board under RCW 90.58.180(2) and would no longer share enforcement authority with local governments." Twin Bridge, 130 Wn. App. at 741 (citing Samuel's Furniture, 147 Wn.2d at 456). ¶46 Here, after completing a project under permits properly issued by Skagit County, Twin Bridge was fined a total of $59,000. ALEXANDER, C.J.; C. JOHNSON and SANDERS, JJ.; and BRIDGE, J. Pro Tem., concur. ¶47 FAIRHURST, J. (concurring) — Because of our decision in Samuel's Furniture, Inc. v. Department of Ecology, 147 Wn.2d 440, 54 P.3d 1194 (2002), in which we determined that the issuance of a building permit by a local government is an implicit determination that the approved development complies with the Shoreline Management Act of 1971 (SMA), chapter 90.58 RCW, I concur with the majority's determination that the Department of Ecology lacked authority to penalize Twin Bridge Marine Park, LLC, for developing in compliance with the building permits issued by Skagit County (County) because Ecology failed to challenge the reinstatement of the building permits pursuant to the Land Use Petition Act (LUPA), chapter 36.70C RCW. While I agree with the result reached by the majority, I write separately because I disagree with portions of the majority's legal analysis. I. The issuance of a building permit by a local government is an implicit determination that the approved development complies with the SMA ¶48 The crux of this case is whether the issuance of a building permit by a local government is an implicit determination that the approved development complies with the requirements of the SMA. A local government is legally obligated to administer its shoreline regulatory program consistent with the SMA. RCW 90.58.050. Thus, the local government is precluded from authorizing development on shorelines of the State unless "upon review the . . . development is determined to be consistent with the policy and provisions of the Shoreline Management Act and the master program." WAC 173-27-140(1). Consequently, in Samuel's Furniture, we determined that the issuance of a building permit necessarily included a determination that the proposed project was outside of the shoreline jurisdiction because the local government did not require a substantial development permit. 147 Wn.2d at 451. I see no significant basis on which to distinguish the building permits in this case from the building permit in Samuel's Furniture. ¶49 Twin Bridge's predecessor obtained two shoreline development permits (CUP/SDP 7-82 ¶50 The County could not have legally issued the 1999 building permits if the proposed development was not consistent with the SMA. II. Ecology's enforcement authority under RCW 90.58.210(3) includes development on shorelines without a permit or in violation of the terms of a permit only when such development has not been authorized by a building permit ¶51 The underlying issue in this case is the proper relationship between local governments and Ecology in ensuring compliance with the SMA. The SMA establishes local governments as the exclusive administrators of shoreline permits but grants joint enforcement powers to local governments and Ecology. ¶52 When Ecology does not attack a local government's administrative or enforcement decision, it may properly exert its enforcement powers. ¶53 In this case, Ecology collaterally attacked the County's decision to authorize the developments proposed by Twin Bridge. Because the County authorized the development in question by reinstating the building permits on February 12, 2001, Ecology was precluded from penalizing Twin Bridge on March 5, 2001, and July 17, 2001, for engaging in development that complied with the building permits. III. The issuance of the building permits by the County was a land use decision, which could have been appealed by Ecology under LUPA ¶54 If Ecology disagreed with the County's implicit determination that a new substantial development permit was not required, Ecology should have timely challenged the issuance of the building permits under LUPA. ¶55 LUPA applies in this situation because the issuance/reinstatement of a building permit is a land use decision. James v. Kitsap County, 154 Wn.2d 574, 584, 115 P.3d 286 (2005) (building permits are subject to judicial review under LUPA). LUPA is the exclusive means of judicial review of land use decisions, with a few exceptions. ¶56 In this case, the reinstatement of the building permits on February 12, 2001, was a final land use decision by the County. ¶57 As the dissent notes, requiring Ecology to comply with LUPA to challenge an implicit determination that a development complies with the SMA limits Ecology's ability to enforce the SMA. Dissent at 8. A local government could knowingly or innocently issue a building permit authorizing development that violates the SMA. Then, Ecology would be precluded from challenging the building permit decision after 21 days expired regardless of whether Ecology was notified of the issuance of the building permit. While this presents a possible obstacle to ensuring the enforcement of the SMA, our role is to interpret the statutes as enacted by the legislature, not to rewrite the law. ¶58 Finally, applying LUPA to the issuance of the building permits, including the implicit decision that the proposed development complies with the SMA, does not preclude Ecology's ability to enforce compliance with the SMA. As we stated in Samuel's Furniture, "Ecology can and should disagree with a local government decision when it believes that it is in conflict with the SMA. We require only that Ecology follow the proper procedures when challenging that decision." 147 Wn.2d at 456 n.14. ¶59 OWENS, J. (dissenting) — This case presents the question of whether a local government's decision to issue its own building permits can limit the independent authority of the Department of Ecology to enforce compliance with an existing shoreline permit under the Shoreline Management Act of 1971 (SMA), chapter 90.58 RCW. The majority relies on an expansive interpretation of this court's holding in Samuel's Furniture, Inc. v. Department of Ecology, 147 Wn.2d 440, 54 P.3d 1194 (2002), to conclude that the issuance of two building permits by Skagit County (County) implied a land use decision under the Land Use Petition Act (LUPA), chapter 36.70C RCW, which necessarily limited Ecology's independent enforcement authority under the SMA. ¶60 I believe that the issuance of the building permits did not require Ecology to comply with LUPA because: the County never made a land use decision from which Ecology could appeal under LUPA, the SMA grants Ecology independent authority to enforce compliance with existing shoreline permits, and Samuel's Furniture does not effectively limit Ecology's jurisdiction to enforce the SMA. For these reasons, I respectfully dissent. I. The Building Permits Issued by the County Did Not Constitute a Land Use Decision from Which Ecology Could Appeal under LUPA ¶61 The majority holds that the building permits issued by the County constituted a land use decision for purposes of LUPA, as they implied a final determination that Twin Bridge's development could proceed without further compliance with the SMA. The majority concludes that Ecology was required to file a LUPA petition in order to challenge that implied decision. However, the majority fails to explain how the County's decision finally determined Twin Bridge's compliance with the SMA in order to give Ecology standing to file a LUPA petition. ¶62 LUPA provides the exclusive remedy for parties to seek review in superior court of land use decisions issued by a local government. RCW 36.70C.030, .040. A land use decision is defined as a "final determination" by the highest authority of the local government, "including those with authority to hear appeals." RCW 36.70C.020(1). A party must exhaust its administrative remedies, including administrative review procedures, in order to petition a land use decision. RCW 36.70C.060(2)(d); see Ward v. Bd. of Skagit County Comm'rs, 86 Wn. App. 266, 271-73, 936 P.2d 42 (1997). A party has no standing to file a LUPA petition before a decision has become final. RCW 36.70C.060(2)(d). ¶63 The issuance of the building permits did not constitute a final determination by the County because that decision remained subject to administrative review. Soon after the County issued the building permits, the city of Anacortes appealed the building permits to the county hearings examiner. ¶64 The decision to issue the building permits did not finally determine Twin Bridge's compliance with the SMA. This court has recognized that "[a] 'final decision' is '[o]ne which leaves nothing open to further dispute and which sets at rest cause of action between parties.' " Samuel's Furniture, 147 Wn.2d at 452 (second alteration in original) (quoting BLACK'S LAW DICTIONARY 567 (5th ed. 1979)). In this case, Twin Bridge's compliance with the SMA remained subject to multiple actions after the County issued the building permits. First, the county hearing examiner decided that Twin Bridge must obtain a new shoreline permit for its amended development plans. The County then decided to suspend the building permits. Next, Twin Bridge applied for a new shoreline permit with the County. Twin Bridge also entered into a settlement agreement with Ecology, through which it agreed to pursue the new shoreline permit in good faith. Finally, shortly after the settlement agreement, the County reissued the building permits and continued to process the shoreline permit application. ¶65 Ecology had no standing to file a LUPA petition as an aggrieved party before the County made a decision on Twin Bridge's shoreline permit application. RCW 36.70C.060(2). The SMA requires parties to obtain a shoreline permit for the development of shoreline property. RCW 90.58.140(2). Only the decision of whether to issue the shoreline permit could be a final determination by the County that Twin Bridge had fully complied with the SMA. The submission of the shoreline permit application required the County to decide whether or not to grant, deny, or rescind the application. Without such a decision, the authorization to develop pursuant to the SMA remained "open to further dispute." ¶66 The SMA requires Ecology to appeal a local government's decision to grant, deny, or rescind the shoreline permit to the Shorelines Hearings Board (Board). RCW 90.58.180(2). In this case, the County simply delayed in making that final decision. Requiring Ecology to appeal the County's decision to issue the permits in superior court before the County made a decision on the new shoreline permit would defy the jurisdiction conferred on the Board as well as LUPA's policy favoring finality in land use decisions. See Samuel's Furniture, 147 Wn.2d at 458. II. Ecology Has Independent Authority To Enforce Compliance with the SMA ¶67 While the majority characterizes this case as a long-standing jurisdictional conflict between Ecology and the County, the facts merely describe a dispute between Ecology and a private developer. In fact, the County conferred jurisdiction upon Ecology to enforce the SMA in the first place by issuing the shoreline permits. Ecology issued its enforcement orders and penalties under that authority. Twin Bridge did not comply with Ecology's orders because it chose to rely solely on the County-issued building permits. The allocation of enforcement jurisdiction under the SMA does not permit a developer to choose which agency to obey. ¶68 The SMA creates independent enforcement jurisdiction in both Ecology and local governments. RCW 90.58.210(1). Either entity may assess a penalty against "[a]ny person who shall fail to conform to the terms of a permit issued under this chapter or who shall undertake development on the shorelines of the state without first obtaining any permit required under this chapter." RCW 90.58.210(2). Furthermore, Ecology may not review penalties assessed by local governments. RCW 90.58.210(4). Likewise, local governments may not review penalties assessed by Ecology. Id. ¶69 There is no question in this case that Twin Bridge fell within the enforcement jurisdiction of Ecology, pursuant to the shoreline permits issued by the County. Under such authority, Ecology gave express written notice to Twin Bridge's predecessor in interest that the permits only authorized the moorage and storage of equipment used for its dredging business and that any other substantial development would require a new or revised permit. "[i]t is our understanding that this permit only authorizes 90,000 cubic yards of fill to be placed on site and subsequent use of the site for the operation of a marine construction and dredging business to include storage of materials and equipment. Any other substantial development on the site such as buildings, shore structures, hard surfacing, and drainage improvements will be submitted as a new permit or a revision to this permit pursuant to WAC 173-14-064." Twin Bridge, 130 Wn. App. at 733. The other permit, 15-86, permitting dredging of 40,000 cubic yards, was later amended in regard to the reconfiguration of a marine basin. CP at 10. The permits did not include any buildings, utilities, paving, or public access. Id. Ecology approved the permits as conditional use permits. While the majority concludes that the permits were later determined to be substantial use permits, and therefore did not require Ecology's approval, such a determination does not affect the notice Twin Bridge received. ¶70 Twin Bridge sought review of Ecology's penalty assessment with the Board. See RCW 90.58.210(4). As a result of that appeal, Twin Bridge and Ecology entered into a settlement agreement through which Twin Bridge agreed to pursue a new shoreline permit application in order to avoid the penalty assessed by Ecology. ¶71 Based on these facts, the majority determines that Twin Bridge "was justified in relying on reissue of its building permits." Majority at 18. However, Twin Bridge could not have reasonably inferred that the reissued building permits determined its compliance with the SMA while the shoreline permit application remained pending. Such reliance is plainly unjustifiable because it ignores that Twin Bridge remained subject to Ecology's independent enforcement jurisdiction. A party cannot decide for itself who may assert jurisdiction over it. ¶72 To require Ecology to file a LUPA petition under these facts would effectively limit Ecology's ability to enforce the SMA. Ecology must have jurisdiction under the SMA before it can enforce compliance against a party. Once the jurisdictional determination is made however, the SMA grants Ecology discretion to enforce compliance with the shoreline permit requirements. See RCW 90.58.210. The burden of challenging Ecology's enforcement authority rests with the party against whom Ecology seeks to enforce compliance. The SMA confers jurisdiction on the Boardto review appeals of penalties assessed by Ecology for failure to obtain or comply with a shoreline permit. RCW 90.58.210(4). ¶73 The majority disregards this procedure in favor of one that requires Ecology to defend its authority in the first instance by filing a LUPA petition in superior court. In this case, the County made the initial jurisdictional determination by issuing the shoreline permits. Ecology took enforcement action under such jurisdiction. Despite the County's determination, Twin Bridge chose to ignore Ecology's enforcement authority in favor of its own interpretation that the County building permits somehow revoked Ecology's enforcement authority. ¶74 Twin Bridge claims, and the majority now holds, that Twin Bridge was entitled to rely on its own interpretation of Ecology's authority to enforce the SMA after jurisdiction had been conferred, and that Ecology must appeal that interpretation in order to defend such authority. Such a procedure totally contradicts the jurisdiction allocation under the SMA by subordinating Ecology's authority to Twin Bridge's own determination not to comply with Ecology's orders. III. Samuel's Furniture Does Not Affect Ecology's Independent Authority To Enforce the SMA ¶75 The majority relies on this court's decision in Samuel's Furniture to infer that the County-issued building permits constituted a land use decision and therefore limited Ecology's enforcement action to filing a LUPA petition. In Samuel's Furniture, this court held that Ecology must file a LUPA petition in order to challenge a local government's determination that a development project did not fall within the jurisdictional boundaries of the SMA. The issue in Samuel's Furniture dealt with a determination of jurisdiction under the SMA, not solely the decision to issue a local building permit. ¶76 In Samuel's Furniture, the city created a shoreline management plan (SMP) that designated certain property outside the jurisdiction of the SMA. 147 Wn.2d at 444. Ecology approved the city's SMP. Id.; see also RCW 90.58.090. Pursuant to this jurisdictional determination, the city issued local building permits for a project on that property without issuing a shoreline permit. Samuel's Furniture, 147 Wn.2d at 444. Ecology then informed the developer that the city had erroneously failed to include the property within its SMP and that the development project would require a shoreline permit. Id. at 445. The city expressly disagreed with Ecology's opinion and allowed the development to continue without a shoreline permit. Id. at 445-46. When Ecology threatened to enforce the SMA, the developer sought a declaratory judgment that Ecology could challenge the city's jurisdictional determination only through a LUPA petition. Id. at 446-47. ¶77 This court agreed with the developer and determined that the issuance of a local building permit necessarily required a determination that the project fell outside of the SMA's jurisdictional boundaries. Id. at 451. The court concluded that the jurisdictional decision by the city constituted a final land use action for purposes of LUPA. ¶78 Interestingly, the court conflated the distinction between the decision to issue the permits and the original decision to approve the SMP. Id. at 451 n.11. The court did note, however, that the real jurisdictional decision was made at the time the city approved the SMP. "[E]ven if the two decisions were distinct and Ecology now concedes that the City's initial determination that the project was outside the shoreline jurisdiction was a decision subject to appeal, then it was required to appeal that decision within 21 days." Id. Regardless of which decision triggered LUPA's limitation period, it is clear that the building permits were relevant in that case only to the extent that they related to the jurisdictional decision by the city. See id. at 451 ("Ecology could have challenged the issuance of those permits on the basis that they are inconsistent with the SMA because no substantial development permit was issued."). ¶79 Unlike Samuel's Furniture, the County's building permits in this case did not imply a jurisdictional decision regarding the SMA. In fact, the County's decision to issue the initial shoreline permits invoked Ecology's jurisdiction to enforce those permits. RCW 90.58.210. The subsequently issued local building permits did not revoke or alter the County's initial determination that the SMA governed the development project. The County continued to process the new shoreline permit application after it reissued the building permits. ¶80 The mere issuance of local building permits does not subordinate the independent obligation created under the SMA to obtain a shoreline permit. The provisions of the SMA expressly do not affect any locally created requirement to obtain any permit or license. RCW 90.58.360. Conversely, any local permit or licensing requirements do not obviate the permit requirement created by the SMA. As Ecology and local governments have independent enforcement jurisdiction of the SMA, the County's decision to issue the local building permits did not affect Ecology's enforcement of the SMA's permit requirement. ¶81 The Samuel's Furniture court went on to recognize that LUPA specifically does not affect Ecology's independent enforcement jurisdiction under RCW 90.58.210. The court assured that requiring Ecology to appeal a local government's jurisdictional decision under LUPA would not prevent Ecology "from taking action against a party who completely ignores the shoreline permitting process or one who obtains a permit and then proceeds to violate the conditions of the permit." Samuel's Furniture, 147 Wn.2d at 456. Therefore, the court determined that LUPA would not apply when Ecology took action to enforce the SMA against a party, such as Twin Bridge, who failed to obtain a new permit. ¶82 The court explained that Ecology's authority to issue penalties for such a violation first required a determination that Ecology had jurisdiction under the SMA. Id. at 457. When a local government has made a final decision that the SMA has no jurisdiction, only then would Ecology have to file a LUPA petition before exercising its enforcement authority. Id. On the other hand, if a local government invoked Ecology's jurisdiction by issuing a shoreline permit, then Ecology could directly proceed to take action under its enforcement authority. See id. at 456. ¶83 Quite apart from the reasoning in Samuel's Furniture, the majority now establishes a rule that would require Ecology to file a petition in superior court before it could take any enforcement action against a party, even when the local government has determined that the SMA applies. I believe such a rule does not follow from Samuel's Furniture and impermissibly infringes on Ecology's independent enforcement authority under the SMA. ¶84 In this case the Board determined that the County-issued building permits did not prohibit Ecology from directly ordering Twin Bridge to comply with the shoreline permits and affirmed Ecology's orders and penalties. I would affirm the Board's decision. MADSEN and CHAMBERS, JJ., concur with OWENS, J.