Chapter § 10.5 Shoreline Permits

• Jurisdiction: Washington

§10.5 SHORELINE PERMITS

The permit requirements in the SMA itself are very brief and depend principally on processes established by local governments and DOE regulations governing shoreline permits. Ch. 173-27 WAC; RCW 90.58.140(2)-(4).

(1) Applications

An application should be submitted as early as possible, because as a practical matter, construction cannot be authorized for about 65 days, at the minimum, from the date of application. A typical efficient shoreline permit process takes 90 to 100 days, but much longer time periods are not uncommon. For GMA jurisdictions, local development regulations must require permit decisions within 120 days from the date of a completed permit application. RCW 36.70B.080(i); see also RCW 36.70B.020(4).

The permit application must define the project and the site with considerable specificity. Hayes v. Yount, 87 Wn.2d 280, 296, 552 P.2d 1038 (1976); Save a Valuable Env't v. City of Seattle, SHB No. 82-29, 1983 WL 197315 (Final Findings of Fact, Conclusions of Law and Order) (Nov. 3, 1983), http://www.eluho.wa.gov/DecisionArchives/SHB/shb%201982-17.pdf; Tarabochia v. Town of Gig Harbor, SHB No. 77-7, 1977 WL 45975 (Final Findings of Fact, Conclusions of Law and Order) (June 22, 1977), http://www.eluho.wa.gov/DecisionArchives/SHB/shb%201977-02.pdf; Morris v. Town of Gig Harbor, SHB No. 81, 1974 WL 35391 (Final Findings of Fact, Conclusions of Law and Order) (Apr. 12, 1974). In a case in which a permit application encompassed a larger area than the area to be used under the permit, the SHB remanded the permit because the site was "imprecisely and inadequately defined" and required the permit to contain a legal description of the actual site to be used. Haggard, SHB No. 67, 1974 WL 35414.

A site development plan is required, as well as the dimensions of proposed structures or ground elevations. See WAC 173-27-180 (specifying the "minimum information" for permit applications). This information is usually requested on local government forms for shoreline permits. The SHB has reaffirmed the need for specific information in numerous cases. See, e.g., Brachvogel v. Mason Cnty, SHB No. 140, 1974 WL 35403 (Final Findings of Fact, Conclusions of Law and Order) (Nov. 6, 1974); State Dep't of Ecology v. Snohomish Cnty., SHB No. 108, 1974 WL 35398 (Final Findings of Fact, Conclusions of Law and Order) (May 22, 1974). The board has given particular emphasis to the need for specifics about fill and dredge spoils. See State Dep't of Natural Res. v. Mason Cnty., SHB No. 83-17, 1983 WL 197331 (Final Findings of Fact, Conclusions of Law and Order) (July 14, 1983), http://www.eluho.wa.gov/DecisionArchives/SHB/shb%201983-08.pdf.

Because the information required by WAC 173-27-180 is a minimum, and because the SMA's primary implementation is by local government, local governments have considerable discretion as to the information that can be requested in or with a shoreline permit and the adequacy of the information submitted. The relationship with SEPA is central because the environmental documentation required under SEPA, which explicitly includes the elements of concern under the SMA and the local SMP, should satisfy informational needs for shoreline permits, with the possible exception of technical, social, or economic information of the review. Application materials will be considered consisting of the permit application itself, any plans or maps accompanying the application, and any permits or other materials incorporated by reference into the permit.

(2) Revisions: scope and intent test

Changes are allowed within the "scope and intent" of a permit, either while the permit is being processed or after a permit has been issued. Changes that the responsible local government official determines are within the scope and intent of the development do not require new notice or the application for a new shoreline permit. DOE has set forth specific criteria for this determination. WAC 173-27-100; see West Sound Marina, Inc. v. San Juan Cnty., SHB No. 84-2, 1984 WL 264539 (Final Findings of Fact, Conclusions of Law and Order) (May 29, 1984), http://www.eluho.wa.gov/DecisionArchives/SHB/shb%201984-01.pdf; Bullitt v. City of Seattle, SHB No. 81-29, 1982 WL 203901 (Order Granting Intervention and Dismissing Requests for Review) (Jan. 17, 1983); Gislason v. Town of Friday Harbor, SHB No. 81-22, 1981 WL 169134 (Final Findings of Fact, Conclusions of Law and Order) (Sept. 24, 1981).

The DOE criteria and subsequent SHB interpretation of those criteria have been developed for several reasons. It is not uncommon to have a proposal continue to be refined during the planning process. Indeed, one purpose of the SEPA and shoreline management processes is to develop alternatives that would avoid or mitigate environmental impacts. It would be a substantial disincentive to applicants to improve their proposals as a result of public hearings or other comments if they were penalized by substantial delay or paperwork requirements for doing so. However, the public has an important interest in understanding the development that is being proposed and being able to comment and participate constructively in the decision-making process. Therefore, a rule of reason has been developed that establishes the "scope and intent" standard for revisions to shoreline permits that do not require new notice or new applications.

Under this test, "intent" refers to the type of land use, and "scope" refers to the actual structures or development activities themselves. State Dep't of Ecology v. Island Cnty., SHB No. 216, 1976 WL 38799 (Final Findings of Fact, Conclusions of Law and Order) (Oct. 7, 1976), http://www.eluho.wa.gov/DecisionArchives/SHB/shb%201976-04.pdf.

Revisions not within the scope and intent, as determined by the shoreline permit decision maker, require a new or revised application, renotification, and processing.

(3) Conditions and mitigating measures

Shoreline permits must specify any conditions that are needed to ensure or bring the proposal into consistency with the SMP and the Act. Nisqually Delta Ass'n v. City of DuPont, SHB No. 81-8, 1982 WL 203870 (Final Findings of Fact, Conclusions of Law and Order) (May 13, 1982), http://www.eluho.wa.gov/DecisionArchives/SHB/shb%201981-01.pdf; Brulotte v. Yakima Cnty., SHB No. 137, 1974 WL 35402 (Final Findings of Fact, Conclusions of Law and Order) (May 13, 1982) (July 3, 1974), http://www.eluho.wa.gov/DecisionArchives/SHB/shb%201974-06.pdf; Snohomish Cnty., SHB No. 108, 1974 WL 35398.

Permit conditions must be "reasonable." Mason Cnty., SHB No. 83-17, 1983 WL 197331. The SHB has interpreted the requirement of "reasonable" conditions to mean that the conditions must be related to the proposal's impacts and not be based on unsupportable facts or assumptions. Moore v. City of Seattle, SHB No. 204, 1976 WL 38795 (Final Findings of Fact, Conclusions of Law and Order) (May 26, 1976), http://www.eluho.wa.gov/DecisionArchives/SHB/shb%201975-09.pdf; Linenschmidt v. City of Seattle, SHB No. 177, 1975 WL 37387 (Final Findings of Fact, Conclusions of Law and Order) (June 25, 1974); Weyerhaeuser v. King Cnty., SHB No. 155, 1975 WL 37376 (Final Findings of Fact, Conclusions of Law and Order) (Mar. 10, 1975). In particular, legislative and administrative amendments to SEPA and its statewide rules have provided more specific guidance and standards as to what constitutes "reasonable" mitigation measures. RCW 43.21C.060; WAC 197-11-660. These also provide a guide to analyzing whether a condition would be considered a "reasonable" one under the SMA.

In addition, a shoreline permit can reference an environmental impact statement (EIS) or environmental document in terms of the conditions to be included in the permit. Nisqually Delta Ass'n, SHB No. 81-8, 1982 WL 203870.

Permit conditions play a special role under the SMA. Because the system created by the Act regulates proposals based on their "consistency" with the SMP and shoreline policies, "additional conditions can make a development consistent" when that development would not otherwise be consistent with the SMA or SMP. See, e.g., State Dep't of Ecology v. Grays Harbor Cnty., SHB No. 62-A, 1974 WL 35384 (Final Findings of Fact, Conclusions of Law and Order) (Apr. 19, 1974), http://www.eluho.wa.gov/DecisionArchives/SHB/shb%201973-07.pdf.

In addition, the SHB has ruled that shoreline permits can be revoked or terminated for failure to make substantial progress in implementing permit conditions, whether or not the actual conditions on the permit were violated. Conner v. San Juan Cnty., SHB No. 83-48, 1984 WL 264534 (Final Findings of Fact, Conclusions of Law and Order) (Mar. 29, 1984), http://www.eluho.wa.gov/DecisionArchives/SHB/shb%201983-21.pdf; Brocard v. San Juan Cnty., SHB No. 181, 1975 WL 37388 (Final Findings of Fact, Conclusions of Law and Order) (Aug. 14, 1975).

Shoreline permits with conditions are not the same as shoreline conditional use permits. Conditional use permits are specifically required under the terms of a local SMP to regulate uses or performance standards for uses that need to be implemented in a certain way to ensure compatibility with the other uses in that shoreline environment. Conditional use permits involve somewhat different procedures than other shoreline permits. Any shoreline permit can have conditions attached to it that the locality believes are reasonably necessary for ensuring or attaining consistency with the SMP, even if the use is an outright permitted use in that shoreline environment.

(4) Conditional uses and variances

The Act authorizes local governments to include in their SMPs types of land uses and developments that may be permitted by a conditional use permit but are not allowed outright. The purpose of a conditional use permit is to allow greater flexibility in varying the application of the use regulations of the master program. Uses that are...