Chapter § 10.3 Shoreline Policies

• Jurisdiction: Washington

§10.3 SHORELINE POLICIES

Policies under the SMA are discussed below.

(1) Legislative intent and public interest test

The Act must be "liberally construed," RCW 90.58.900, which means that reviewing bodies and courts will give the Act effect by reading it expansively rather than narrowly. Hayes v. Yount, 87 Wn.2d 280, 289, 552 P.2d 1038 (1976); Hama Hama Co. v. Shorelines Hearings Bd., 85 Wn.2d 441, 446, 536 P.2d 157 (1975). This requirement of liberal construction also means that exceptions from the Act, in the form of variances, are to be construed narrowly. Weinberg v. Whatcom Cnty., SHB No. 93-2, 1993 WL 837326 (Final Findings of Fact, Conclusions of Law and Order) (Dec. 15, 1993), http://www.eluho.wa.gov/DecisionArchives/SHB/shb%201993-01.pdf; Mason Cnty. v. State Dep't of Ecology, SHB No. 88-25, 1990 WL 150961 (Final Findings of Fact, Conclusions of Law and Order) (June 28, 1990) (http://www.eluho.wa.gov/DecisionArchives/SHB/shb%201988-10.pdf; see also Buechel v. State Dep't of Ecology, 125 Wn.2d 196, 205-07, 884 P.2d 910 (1994) (if an SMP variance provision is more restrictive than the corresponding WAC provision, then the SMP variance provision controls).

Courts have rejected the contention that the Act forces a "taking." State Dep't of Ecology v. Pacesetter Constr. Co., 89 Wn.2d 203, 571 P.2d 196 (1977). But see Orion Corp. v. State, 109 Wn.2d 621, 747 P.2d 1062 (1987), cert. denied, 486 U.S. 1022 (1988) (discussing the takings issue at length).

The basic philosophy of the Act has been summarized by the SHB as follows:

Private property owners should be permitted to use their land in a manner which does not unreasonably infringe on other private rights or the public interests. Accordingly, the Shoreline Management Act was designed so that all development on the shoreline would be controlled, with priorities of use established, with natural resources preserved to the greatest extent practical and with adverse environmental impacts mitigated.

Chumbley v. King Cnty., SHB No. 224, 1977 WL 45986 (Final Findings of Fact, Conclusions of Law and Order) (Feb. 25, 1977), http://www.eluho.wa.gov/DecisionArchives/SHB/shb%201976-07.pdf; see also Nisqually Delta Ass'n v. City of DuPont, 103 Wn.2d 720, 726, 732, 696 P.2d 1222 (1985).

Thus, the SHB has held that public interest is more important than other factors. Lane v. Gig Harbor, SHB No. 129, 1974 WL 35401 (Final Findings of Fact, Conclusions of Law and Order) (Sept. 25, 1974), http://www.eluho.wa.gov/DecisionArchives/SHB/shb%201974-05.pdf. Consistent with the holdings of the board, the Washington Supreme Court has reiterated the importance of the public interest factor. See Nisqually, 103 Wn.2d at 726. In Nisqually, the court stated that it was not the overall policy of the Act to "prohibit development of the state's shorelines." Id. Instead, the court found that the Act calls for "coordinated planning" fostering "reasonable uses" and recognizing and protecting private property rights "consistent with the public interest." Id. at 726, 732.

Determining the public interest requires balancing the private benefits of the proposal with the public benefits that it provides, particularly in terms of public access. Skagit River League v. Skagit Cnty., SHB No. 228, 1977 WL 45989 (Final Findings of Fact, Conclusions of Law and Order) (Jan. 21, 1977), http://www.eluho.wa.gov/DecisionArchives/SHB/shb%201976-10.pdf. Yet the Act does not necessarily "mandate a calculation of equal public benefits to be offset against private benefits." Jefferson Cnty. v. Seattle Yacht Club, 73 Wn.App. 576, 589, 870 P.2d 987 (1994), review denied, 124 Wn.2d 1029 (1994). A related philosophical basis of the Act is to mitigate environmental impacts. Concerned Citizens of S. Whidbey v. Island Cnty., SHB No. 77-11, 1979 WL 52495 (Final Findings of Fact, Conclusions of Law and Order) (May 3, 1979), http://www.eluho.wa.gov/DecisionArchives/SHB/shb%201977-06.pdf; Coughlin v. City of Seattle, SHB No. 77-18, 1977 WL 45982 (Final Findings of Fact, Conclusions of Law and Order) (Sept. 7, 1977), http://www.eluho.wa.gov/DecisionArchives/SHB/shb%201977-10.pdf; State Dep't of Natural Res. v. Island Cnty., SHB No. 77-8, 1977 WL 45976 (Final Findings of Fact, Conclusions of Law and Order) (July 5, 1977), http://www.eluho.wa.gov/DecisionArchives/SHB/shb%201977-03.pdf. The definition of mitigation in SEPA, WAC 197-11-768, is an appropriate guide to the implementation of the concept.

The SMA does not prohibit all development in the shoreline. Rather, its purpose is to allow careful development of shorelines by balancing public access, preservation of shoreline habitat, and private property rights through coordinated planning. Overlake Fund v. Shoreline Hearings Bd., 90 Wn.App. 746, 762, 954 P.2d 304 (1998). The legislative intent looks to the balancing of interests, including property rights: "coordinated planning is necessary in order to protect the public interest associated with the shorelines of the state while, at the same time, recognizing and protecting private property rights consistent with the public interest." RCW 90.58.020. This view was incorporated into the guidelines in WAC 173-26-186: "Planning policies should be pursued through the regulation of development of private property only to an extent that is consistent with all relevant constitutional and other legal limitations (where applicable, statutory limitations such as those contained in [C]hapter 82.02 RCW and RCW 43.21C.060) on the regulation of private property."

Although a primary purpose of the SMA is to "protect the state shorelines as fully as possible," Buechel v. State Dep't of Ecology, 125 Wn.2d 196, 203, 884 P.2d 910 (1994); Samson v. City of Bainbridge Island, 149 Wn.App. 33, 49, 202 P.3d 334 (2009), review denied, 166 Wn.2d 1036 (2009); Lund v. State Dep't of Ecology, 93 Wn.App. 329, 337, 969 P.2d 1072 (1998), this purpose does not necessarily trump constitutional property rights.

The philosophy of the SMA also emphasizes preservation of water quality as part of land use planning, Weyerhaeuser v. King Cnty., SHB No. 155, 1975 WL 37376 (Final Findings of Fact, Conclusions of Law and Order) (Mar. 10, 1975); and a high priority for public access and recreational use. In particular, permanent structures or alteration, such as fill, in natural or relatively natural shoreline areas tends to be strongly discouraged.

(2) Use preferences and priorities

The Act establishes a preference for uses that "are consistent with control of pollution and prevention of damage to the natural environment, or are unique to or dependent upon the use of the state's shoreline." RCW 90.58.020 (emphasis added). In short, preference is given to uses that protect the environment, must exist on or near a body of water, and preserve and enhance public access. The Act also creates specific, priority uses:

Alterations of the natural condition of the shorelines of the state, in those limited instances when authorized, shall be given priority for single family residences..., ports, shoreline recreational uses including but not limited to...improvements facilitating public access to shorelines..., industrial and commercial developments which are particularly dependent on their location on or use of the shorelines...and other development that will provide an opportunity for substantial numbers of the people to enjoy the shorelines....

Id.

These three uses—single-family residences, water-dependent uses, and uses that afford public access—are of equal importance, in that the SHB and courts will accord them equal weight and, at least in theory, the presence of any one of them alone may be sufficient to establish a development as a priority use. See Clifford v. City of Renton, SHB Nos. 92-52 and 92-53, 1993 WL 136518 (Final Findings of Fact, Conclusions of Law and Order) (Mar. 29, 1993) (not available online). The preferred use policies of the Act are particularly applicable to shorelines under intense development pressure for competing industrial, commercial, recreational, and residential land uses, where the shoreline resource is limited and valuable. This is a principal reason why the concepts of "water-dependent uses" and "public access" are such important factors in assigning priorities to competing land uses.

Although not elevated to the status of a preference or priority, preservation of the aesthetic qualities of the shorelines is listed in the Act as an important policy. RCW 90.58.020.

In addition to use preferences and priorities that apply to all shorelines of the state, the Act creates an additional overlay of use preferences to be applied to shorelines of statewide significance. RCW 90.58.020. See §10.3(2)(e), below.

Beyond the preferences and priorities enumerated in the SMA, SEPA also imposes a duty upon all agencies...