Substantive Decision-making Under the Washington Shoreline Management Act

• Publication year: 1985
• Citation: Vol. 9 No. 02

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 9, No. 2WINTER 1986

Substantive Decision-Making Under the Washington Shoreline Management Act

William H. Chapman(fn*)

I. Introduction

Washington's Shoreline Management Act(fn1) (SMA) arguably regulates a greater proportion of its state's land development than the proportion regulated under the coastal zone management program of any other state except Hawaii. This can be attributed in part to the physical fact of an extensive shoreline that borders the Pacific Ocean, the Strait of Juan de Fuca, and Puget Sound and includes many islands and the Olympic and Kitsap Peninsulas. The expansive nature of SMA jurisdiction also can be credited to the SMA's broad, inclusive definition of shorelines, which includes all marine water areas, all lakes and rivers greater than a certain minimal size,(fn2) lands lying underneath these areas, and associated wetlands, including all land within 200 feet of the ordinary high water mark of such water areas.(fn3) This definition encompasses a great deal of the populous half of Washington west of the Cascades, and a substantial portion of the prime development sites in Eastern Washington. There are 20,634 linear miles of shorelines under SMA jurisdiction by the Act's definition.(fn4)

The SMA was among the earliest state statutes to provide comprehensive regulation of the shorelines area. Enacted in 1971, it predates even the federal Coastal Zone Management Act of 1972 (CZMA).(fn5) It was the foundation of Washington's Coastal Zone Management Program (CZMP), the first such program in the nation to receive federal approval, in June 1976.

An appraisal of regulation under the SMA and Washington's CZMP is therefore of national as well as statewide interest. This survey of the patterns of implementation of the SMA by judicial and quasi-judicial bodies is, however, intended primarily to serve local governments, permit applicants, and permit contestants in their interactions with Washington's shoreline management system. This survey is an attempt to demonstrate the use of simple statistics to explore and evaluate the implementation of a new statutory mandate with a particular permit review and appeal system.

The specific purposes of this Article are twofold: first, an analysis of the SMA is set forth and then used in simple statistical comparisons to evaluate decisions rendered by local governments, superior courts, and the Shorelines Hearings Board (SHB) during the period 1974-1983; second, to present a numerical model that represents the verbal interpretation of the SMA with a simple arithmetical equation using weighted variables.(fn6) These variables correspond to objectives identified in interpretations of the SMA. Decisions of the SHB and appellate courts during this period are explained in a statistical manner through use of the model. Neither computer(fn7) nor regression analysis is used, but both the verbal interpretation of the SMA-derived from legal analysis and theory-and the numerical equation-based in theory, but derived somewhat empirically-are substantially validated by the high correlation between the outcomes predicted by the simple model and the decisions rendered by the SHB and appellate courts.

This Article begins, in Part II, by identifying the objectives of the SMA and Washington's CZMP. The objectives are ascertained in this Article through analysis of the stated SMA policy, the goals that are required under the federal CZMA,(fn8) and the goals described in the Final Environmental Impact Statement (FEIS), which was filed by the Washington Department of Ecology (WDOE) with its application for federal approval of Washington's CZMP.(fn9) Appellate court interpretation of the SMA supplements this analysis.

Part III of the Article evaluates fifty decisions of local governments and the SHB according to the SMA objectives identified in Part II. Part III explores decisionmaking trends at different levels of review and appeal for each objective to determine the statistical extent to which each particular objective influenced the decisions of local governments, the SHB, and, when appropriate, superior and appellate courts.

Part IV of this Article presents a numerical model developed by the author to help evaluate and explore substantive decisionmaking under the SMA. The model allows an evaluation of fifty decisions on the basis of a balancing of all of the identified SMA objectives rather than according to each objective taken separately. The model also serves to evaluate and compare all levels of permit review and appeal.

Finally, in Part V, this Article discusses general trends in SMA implementation with respect to the opportunities and relative advantages available to parties involved in the permit process. These parties include governments, private and public developers, and those who contest permits, including the state attorney general's office, adjacent landowners, and citizen groups. A party's opportunities and relative advantages differ significantly according to the level at which the permit is being reviewed.

Three levels of government-federal, state and local- affect shoreline management in Washington. The federal CZMA provides general guidance and substantial funding for planning and administration and authorizes approval of CZMPs prepared by states. Federal approval of a state's CZMP under the CZMA makes the state eligible for significant federal funding and aids the state in regulating its own coastal zone, including the federal activities and private projects in the coastal zone that require one or more permits from federal agencies.(fn10) It is the intent of the CZMA that most coastal zone regulation be performed by states under the guidance of their federally approved CZMPs.(fn11)

The Washington State SMA provides authority for state and local government agencies to regulate development and establishes specific goals to guide local planning. The SMA authorizes the WDOE to approve Shoreline Master Programs (SMPs) prepared by local governments(fn12) (unless a proposed SMP is inconsistent with the policy of Wash. Rev. Code § 90.58.020). Local governments enact SMPs as local ordinances; an SMP contains goal statements, regulations for development, and a separate "zoning" system for shorelines within the jurisdiction.(fn13) Local governments directly regulate development on Washington's shorelines through administration of a permit system.

The procedure of the permit process itself is fairly straightforward. Persons who wish to make substantial developments(fn14) on Washington's shorelines must obtain a permit.(fn15) Substantial development permit applications are reviewed by local governments. The granting or denial of a permit may be appealed(fn16) for de novo review by the SHB,(fn17) a state agency acting as a quasi-judicial review board. Further appeal can be made to superior and appellate courts.(fn18)

At the local government and SHB level, a permit for a proposed project is reviewed for consistency with the local government's SMP and the objectives of the SMA.(fn19) Further review ostensibly asks whether the SHB's findings, inferences, conclusions, or decisions may have prejudiced the substantial rights of the petitioners because they were clearly erroneous, or arbitrary and capricious,(fn20) or beyond the SHB's statutory or constitutional authority.(fn21)

As a final introductory note, the reader should be aware of this author's disclaimer regarding the process by which specific decisions are compared to specific standards. Whether or not a particular project is inconsistent with a specific standard is a factual question. This author has based his factual conclusions as much as possible on SHB fact-findings, although this unavoidably gives the SHB an advantage in the evaluation conducted in this Article. The author has tried to minimize this subjective element as much as possible through careful review, but a reader should consider that, in any particular case, this reviewer may be describing as a policy inconsistency what may be only a disparity in factual interpretations.

II. Identifying the Objectives of the SMA

In the fifty decisions of the Shorelines Hearings Board examined by this author,(fn22) the local government's decision regarding approval of a substantial development permit was vacated, reversed, or remanded for significant changes twenty-nine times. Thus, the governing bodies that are most experienced in interpreting the SMA were in agreement, or even substantial agreement, for less than half of the permits reviewed. This fifty-eight percent reversal rate appears to be quite high(fn23) for a tribunal to whom appeal is made by right.(fn24)

One possible explanation is that the stated policies of the SMA are less than clear. As one commentator noted, since the act was a compromise designed to attract broad support-and win voter approval at the polls-"[s]hining phrases can be mined from the statement of policy to support most positions which an attorney, environmentalist or developer may desire to promote."(fn25)

By its nature, the SMA is a resource management act rather than single mission legislation; consequently it must accommodate vigorously competing positions and strike a balance between preservation values and growth interests, between immediate economic desires and long-term environmental protection. Its birth in popular...