Mark Marlow, et ux v. Douglas County

FILED

OCT. 22, 2013

In the Office of the Clerk of Court

WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

MARK AND NANCY MARLOW, husband ) No. 31013-2-111

and wife, )

)

Appellants, )

)

v. )

) UNPUBLISHED OPINION

DOUGLAS COUNTY, a subdivision of the )

State of Washington, )

)

Respondent. )

BROWN, J. - Mark and Nancy Marlow appeal the Douglas County Superior

Court's denial of their land use petition under the Land Use Petition Act (LUPA), chapter

36.70C RCW, concerning improvements to their Columbia River waterfront property

purchased in 1997. In 2011, Douglas County (County) issued a notice of land use

violation and order to comply (NOV). A hearing examiner found the Marlows had

violated, inter alia, the Shoreline Management Act (SMA), chapter 90.58 RCW; section

173-27 WAC (Shoreline Permit and Enforcement Procedures); and the Douglas County

Shoreline Master Program (SMP). The Marlows contend here as they did at the

superior court (1) the hearing examiner lacked legal authority or jurisdiction to impose

injunctive relief, (2) the proceeding was barred by the statute of limitations, (3) the

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hearing examiner misallocated the burden of proof, (4) the hearing examiner wrongly

interpreted the law regarding shoreline exemptions, and (5) evidentiary error. We find

no error, and affirm.

FACTS

In 1997, the Marlows bought Douglas County waterfront property along the

Columbia River near Rock Island. The shoreline is steep and rocky, with a portion

excavated approximately 75 to 100 years ago apparently for a ferry landing. The

property included a rock/dirt boat launch and a 4-foot-wide by 16-foot-long dock.

In 1997, the Marlows constructed a concrete block retaining wall and a second

retaining wall in 1998 or 1999. They claim the retaining walls were necessary to stop

soil erosion. They further installed a concrete pad above one of the retaining walls for a

hot tub. Also in 1997, the Marlows replaced the rock/dirt boat launch with a concrete

launch. In 2003, the Marlows installed a 55-foot bulkhead, sidewalks, and a patio. The

bulkhead is one to two feet landward of the ordinary high water mark. In 2006, the

Marlows replaced the concrete blocks in their retaining walls with flat stones. They

brought in fill sand and attached a slide to the bulkhead that was later removed. In

2008, the Marlows replaced the existing dock with a grated dock (the prior dock had a

solid surface), which is more "environmentally friendly." Clerk's Papers (CP) at 660.

And, they installed a boat lift. The new dock was 8-feet-wide by 20-feet-long.

On June 24, 2011, the County issued a NOV to the Marlows. The NOV

described the Marlows' unauthorized development on the Columbia River shoreline as

violations, specifically including the boatlift; concrete bulkhead, sidewalk, and patio;

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concrete launch ramp; multiple dock floats and a dock ramp; diving board and slide;

grading and retaining walls; non-native sand; and the concrete pad under the hot tUb.

The Marlows appealed to the Douglas County Hearing Examiner. In a November

2011 hearing, the Marlows offered the testimony of Tony Roth, a certified wetlands

scientist, who visited the Marlows' property from Seattle on the day of the hearing and

then opined "continuity of use" was best for the environment. CP at 663. The hearing

examiner found Mr. Roth was not "an expert witness" and "[e]ven if Mr. Roth could be

characterized as an expert witness ... Mr. Roth's purported opinions [are not]

convincing." CP at 13. The hearing examiner affirmed the County's NOV, entering

findings of fact and conclusions of law.

The Marlows then filed a LUPA petition in the Douglas County Superior Court,

challenging the hearing examiner's decision. The court dismissed their petition,

concluding the County had jurisdiction to provide a NOV and the Marlows had failed to

show they obtained the necessary permits for their improvements or that they were

exempt from obtaining permits. The Marlows appealed to this court.

ANALYSIS

A. Jurisdiction

The issue is whether the hearing examiner lacked jurisdiction to affirm the

County's NOV. The Marlows contend the hearing examiner's decision amounted to an

unlawful injunction that the examiner does not have authority to impose.

LUPA governs judicial review of Washington land use decisions. HJS Dev., Inc.

v. Pierce County ex reI. Dep't of Planning & Land Servs., 148 Wn.2d 451,467,61 P.3d

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1141 (2003). Relief from a land use decision may be granted if the petitioner carries its

burden in establishing one of six standards of relief:

(a) The body or officer that made the land use decision

engaged in unlawful procedure or failed to follow a

prescribed process, unless the error was harmless;

(b) The land use decision is an erroneous interpretation of

the law, after allowing for such deference as is due the

construction of a law by a local jurisdiction with expertise;

(c) The land use decision is not supported by evidence that

is substantial when viewed in light of the whole record before

the court;

(d) The land use decision is a clearly erroneous application

of the law to the facts;

(e) The land use decision is outside the authority or

jurisdiction of the body or officer making the decision; or

(f) The land use decision violates the constitutional rights of

the party seeking relief.

RCW 36.70C.130(1).

Standards (a), (b), (e) and (f) present questions of law we review de novo, but

under (b) we give deference to the hearing examiners construction of local land use

regulations based on his or her specialized knowledge and expertise. Cingular

Wireless, LLC v. Thurston County, 131 Wn. App. 756, 768,129 P.3d 300 (2006).

Standard (c) involves factual determinations we review for supporting substantial

evidence. Id. We consider all of the evidence and reasonable inferences in the light

most favorable to the party who prevailed in the highest forum that exercised fact-

finding authority. Id.

"'When reviewing a superior court's decision on a land use petition, the appellate

court stands in the shoes of the superior court.'" HJS Dev., 148 Wn.2d at 468 (quoting

Citizens to Preserve Pioneer Park LLC v. City of Mercer Island, 106 Wn. App. 461,470,

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24 P.3d 1079 (2001 ». '''An appellate court reviews administrative decisions on the

record of the administrative tribunal, not of the superior court. '" HJS Dev., 148 Wn.2d at

468 (quoting King County v. Boundary Review Bd., 122 Wn.2d 648, 672,860 P.2d 1024

(1993».

The Marlows first argue the land use decision is outside the authority or

jurisdiction of the body or officer making the decision (RCW 36.70C.130(1)(e».

Implementation of the SMA is a coordinated effort of the State and local jurisdictions.

The SMA and applicable regulations expressly provide for the County's permitting and

enforcement under the SMA and SMP. RCW 90.58.050, 140(3); WAC 173-27-240.

Regarding penalties, RCW 90.58.210(3) provides they "shall be imposed by a

notice in writing ... to the person incurring the same from the department or local

government,'describing the violation with reasonable particularity and ordering the act

or acts constituting the violation or violations to cease and desist or, in appropriate

cases, requiring necessary corrective action to be taken within a specific and

reasonable time."

Likewise, WAC 173-27-240 was codified to "implement the enforcement

responsibilities of the department and local government under the Shoreline

Management Act." Further, this code section "provides for a variety of means of

enforcement, including civil and criminal penalties, orders to cease and desist, orders to

take corrective action, and permit rescission." Id.

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In harmony with RCW 90.58.210(3) and WAC 173-27-270, the County ordered

the Marlows to stop property development and identified specific corrective steps to

comply with the County's SMP:

1. Immediately cease and desist all development ....

2. Submit to the Douglas County Department of

Transportation and Land Services, within 30 days, the

following:

a. A Shoreline Management Substantial

Development Permit Application ... ;

b. State Environmental Policy Act (SEPA)

Environmental Checklist;

c. A fish and wildlife habitat management and

mitigation plan ... ; and

d. Appropriate application fees in the amount of

$3,208.00.

3. In accordance with an approved shoreline substantial

development permit and fish and wildlife habitat

management and mitigation plan, all structures and

development identified in this notice and order must be

removed and remediated.

CP at 66-67.

Citing Chaussee v. Snohomish County Council, 38 Wn. App. 630, 689 P .2d 1084

(1984), the Marlows argue the examiner exceeded his jurisdiction by granting

"injunctive" relief. In Chaussee, the court addressed a challenge to injunctive relief.

The case involved the authority of a hearing examiner and the county council to

consider and apply the doctrine of equitable estoppel in a land use administrative

proceeding. The court held that the authority of a hearing examiner is created by and

limited to the statutes and/or ordinances creating the position. Id. at 636-38. Here,

however, the hearing examiner was affirming action authorized by RCW 90.58.210(3)

and WAC 173-27-270, not imposing an injunction.

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Herman v. Shorelines Hearings Board, 149 Wn. App. 444, 457-58,204 P.3d 928

(2009) is instructive. There, this court reversed the superior court's decision and

reinstated a Shorelines Hearings Board (SHB) order. The SHB order included an order

to comply, conditions required to comply, and imposed sanctions if compliance was not

achieved. In affirming the order, this court acknowledged the SHB's authority to place

conditions on development and held the administrative order was not self-executing.

Similarly, in Twin Bridge Marine Park, LLC v. Department of Ecology, 162 Wn.2d 825,

175 P.3d 1050 (2008). our Supreme Court held the Department of Ecology had no

authority to directly review a county development permit or issue fines for

noncompliance with the SMA. Id. at 845-46. The authority was granted to the county.

Accordingly, because the NOV issued to the Marlows and affirmed by the

hearing examiner, does not impose injunctive relief and is within the authority granted

by statute and code, it is not outside the authority or jurisdiction of the body or officer

making the decision. Thus, we conclude the Marlows have not met their burden to

justify relief under RCW 36.70C.130(1)(e).

B. Statute of Limitations

The issue is whether the County's NOV was barred by the statute o'f limitations.

The Marlows initially argued the NOV is essentially a civil penalty and a misdemeanor,

which carry a two-year statute of limitations and one-year statute of limitations,

respectively. In their reply brief, however, the Marlows appear to concede no statute of

limitations applies to these proceedings, but they ask us to take the delay in

enforcement into consideration.

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As discussed above, the County properly issued a NOV that the hearing

examjner had jurisdiction to affirm. This case does not involve civil penalties or criminal

liability as contemplated by the time limitations set forth in RCW 4.16.100(2) (two-year

statute of limitations to pursue civil penalties) and RCW 9A.04.080(1)U) (one-year

statute of limitations for misdemeanors). Accordingly, these proceedings are not barred

by the statute of limitations.

C. Burden of Proof

The issue is whether the hearing examiner applied an incorrect burden of proof

thereby justifying relief under RCW 36.70C.130(1)(a). The Marlows contend the

examiner wrongly placed the burden on them to demonstrate SMA compliance.

Douglas County Code 2.13.070(A)(3), grants the hearing examiner authority to

review appeals "alleging an error in a decision" in the "enforcement of violations of the

zoning code or any other development regulation." The error must be alleged by the

appellant, here, the Marlows.

Further, under the SMA, the proponent seeking a development permit has the

burden of proving the pOlicies and regulations of the SMA have been met. RCW

90.58.140(7). The statute places the burden of proof on any party challenging the

granting or denial of a permit. Similarly, the proponent of development has the burden

of proving the development is exempt from permitting. WAC 173-27-040(1)(c).

Relying on Post v. City of Tacoma, 167 Wn.2d 300, 217 P.3d 1179 (2009), the

Marlows argue the County had the burden of proof before the hearing examiner. Post

involved a challenge to over $500,000 in infraction penalties administratively imposed

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by Tacoma under its building code. The penalties were imposed without any

opportunity for administrative challenge or review, and were struck down by the

Supreme Court as violating due process. Here, the Marlows exercised their right to

administratively challenge the NOV and no infractions were issued or penalties

imposed. The Marlows will be subject to enforcement solely after their failure to comply

with the NOV. Thus, the Post case is distinguishable on its procedure and facts.

The Marlows cite WAC 461-08-500(3), which provides, "Persons requesting

review pursuant to RCW 90.58.180(1) and (2) shall have the burden of proof in the

matter. The issuing agency shall have the initial burden of proof in cases involving

penalties or regulatory orders." This section, however, applies to proceedings before

the SHB, which reviews cases de novo. And, the term "agency" used in WAC 461-08­

500(3) is defined as "any state governmental agency." A county falls within the defined

term "local government." WAC 461-08-305(7). Therefore, the burden of proof provision

in WAC 461-08-500(3) is not applicable to proceedings before a county hearing

examiner.

Under RCW 90.58.140(7) and WAC 173-27-040(1)(c), the burden of proof is on

the Marlows to demonstrate they did not develop within the shoreline, or they obtained

all necessary permits, exemption determinations and other approvals. The Marlows

have failed to meet their burden of proof to establish the standard for relief at RCW

36.70C.130(1)(a).

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D. Exemption Claims

The issue is whether the hearing examiner erred in concluding the Marlows failed

to meet their burden of showing "the dock ... boat launch ... bulkhead ... and four

new retaining walls could qualify as exemptions." CP at 19 (Conclusion of Law 7). The

Marlows contend they were exempt from the WAC's shoreline permit and enforcement

procedures requirements.

Initially, we note the Marlows did not specifically assign error to the hearing

examiner's findings of fact, but provided a general objection in aSSignment of error 3.

stating. "This issue affected all findings of fact and particularly the findings related to

[the] Marlows' contention that their actions were exempt from permitting requirements."

Br. of Appellant at 2. While not a specific assignment of error of each finding as

contemplated by RAP 10.3(g), RAP 1.2(a) requires we interpret the appellate rules

liberally "to promote justice and facilitate the decision of cases on the merits." The

Marlows' briefing clearly reveals their challenges. Even so, the evidence and

reasonable inferences are viewed in the light most favorable to the party who prevailed

in the highest forum that exercised fact-finding authority (the County). Cingular

Wireless, LLC, 131 Wn. App. at 768.

Under the WAC's shoreline permit and enforcement procedures, local entities are

required "to establish a program, consistent with rules adopted by the department of

ecology, for the administration and enforcement of the permit system for shoreline

management." WAC 173-27-020. But, under WAC 173-27-040 several exemptions

exist to the permit requirement. The County's NOV ordered the Marlows to submit to

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the County, "A Shoreline Management Substantial Development Permit Application."

CP at 66. The Marlows argue exemptions existed for the dock, boat launch, bulkhead,

and retaining walls but the hearing examiner concluded otherwise. We review

conclusions of law de novo. City of Univ. Place v. McGuire, 144 Wn.2d 640, 652, 30

P.3d 453 (2001).

The dock was installed sometime after 1984, after adoption of the SMA and the

County's SMP. But, the County did not issue a determination of exemption or letters of

exemption for this prior dock. In 2008, the Marlows placed a new dock in the shoreline.

The Marlows claim this dock was exempt in 2008 based on WAC 173-27-040(2)(b).

"Normal maintenance or repair of existing structures or developments" do not require

substantial development permits. WAC 173-27-040(2)(b). The original dock, however,

was not maintained or repaired; it was replaced by one considerably larger and wider in

a different style. Accordingly, the hearing examiner properly concluded this structure

was not exempt from the permit requirements.

The boat launch was constructed in 1997. It is a long concrete structure

extending from a concrete parking area down into the Columbia River. Concrete was

poured 5 to 10 feet into the Columbia River. The Marlows argue the boat launch was

exempt based on maintenance or repair under WAC 173-27-040(2)(b). But, the original

launch was dirt and rock, the new boat launch is made out of a different material and is

a different size and shape. The work was not limited to maintenance or repair and

required a permit. The Marlows argue they were exempt based on the fair market value

of the repairs. Former RCW 90.58.030(3)(e) (1997) provides that improvements having

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a fair market value of less than $2,500 are not substantial developments and do not

require a permit (the current statute has raised the amount to $5,000). While the

Marlows claim the concrete cost less than $2,500, that claim alone is not substantial

evidence to establish the fair market value. See Magana v. Hyundai Motor Am., 123

Wn. App. 306, 320,94 P.3d 987 (2004) (bare, self-serving declarations are inadequate).

The bulkhead was constructed by the Marlows in July 2003. It consists of a large

60-foot concrete structure along the shoreline. Concrete was poured waterward of the

ordinary high water mark to a depth of three to six feet. The Marlows argue the

bulkhead was eligible for the fair market value exemption. During his testimony, Mr.

Marlow could not remember how much he paid for the concrete bulkhead until reminded

by his counsel. Mr. Marlow agreed with his counsel that the cost was $1,500 to $2,000.

The Marlows did not provide any further evidence. As discussed above, this self-

serving recollection is insufficient to establish a permit exemption. The Marlows further

argue the bulkhead was exempt because it was needed for protection. Both RCW

90.58.030(2)(e)(ii) and WAC 173-27-040(2)(c) allow an exemption for a "normal

protective bulkhead" on a single-family residence property. Based on our record, it

does not appear the bulkhead was constructed to protect the Marlows' residence from

erosion. Instead, it appears the bulkhead was created for more dryland area. Again,

without further evidence, the Marlows fail to establish they are exempt from the permit

requirements.

The retaining walls were constructed in 2006. The Marlows placed four retaining

walls within the shoreline, two of which replaced existing retaining walls. They argue a

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permit was not required because the new walls are maintenance or repair of the original

walls. But. the walls are not comparable to the original in size, shape, configuration,

location, material, and external appearance. The terracing has been largely expanded.

The Marlows argue the walls are an exempt "appurtenance" to their home. Under WAC

173-27-040(2)(g), an appurtenance to a single-family residence is exempt from the

permit requirements. In this context, an appurtenance is "a garage; deck; driveway;

utilities; fences; installation of a septic tank and drainfield and grading which does not

exceed two hundred fifty cubic yards and which does not involve placement of fill in any

wetland or waterward of the ordinary high water mark." WAC 173-27-040(2)(g). A

retaining wall is not included in this list. Accordingly, a permit was required.

Given all, we conclude none of the Marlows' exemption claims are well founded.

E. Mr. Roth's Testimony

The issue is whether the hearing examiner's finding regarding the weight given to

Mr. Roth's testimony and rejecting his expertise justifies relief under RCW

36.70.130(1)(c) as a decision not supported by substantial evidence.

The minimum qualifications for an expert used by a development proponent to

address impacts and mitigation are set out in the County's SMP. The SMP defines a

"qualified professional for wetlands" as a person with a "degree in biology, ecology,

botany, or a closely related field and a minimum of five (5) years of professional

experience in wetland identification and assessment in Eastern Washington." Douglas

County SMP, ch. 8, § 203, available at (http://www.douglascountywa.net).

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The Marlows retained Mr. Roth, a Western Washington resident, the day before

the hearing and he visited the Marlows' property the day of the hearing. Mr. Roth did

not testify regarding the scope and details of his investigation of the Marlows' property

and did not prepare a written report; rather, Mr. Roth testified regarding general

observations of the Marlows' property. Mr. Roth did not testify as to any professional

experience involving Eastern Washington wetlands as required by the SMP. Based on

the limited information provided regarding his education and experience, Mr. Roth did

not establish his expertise under the County's SMP. The hearing examiner properly

found likewise. Moreover, any error was harmless because the hearing examiner

additionally found, "Even if Mr. Roth could be characterized as an expert witness ... Mr.

Roth's purported opinions [are not] convincing." CP at 13.

In sum, considering the SMP, the hearing examiner's specialized knowledge and

expertise, the examiner's fact-finding discretion regarding credibility and evidence

weight, and our standard of viewing the evidence and reasonable inferences from the

evidence in the light most favorable to the prevailing party, we cannot conclude the

hearing examiner erred regarding Mr. Roth's testimony.

F. Attorney Fees

The County argues the Marlows' appeal is frivolous and requests attorney fees

under RAP 18.1 and RCW 4.84.185 for defending against a frivolous appeal. "An

appeal is frivolous if, considering the entire record, it has so little merit that there is no

reasonable possibility of reversal and reasonable minds could not differ about the

issues raised." Johnson v. Jones, 91 Wn. App. 127, 137,955 P.2d 826 (1998). While

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the Marlows have not established a basis to reverse the hearing examiner's decision,

we cannot say their issues are so meritless that reasonable minds could not differ.

Thus, the County's request is denied.

Affirmed.

A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.

Brown, J.

WE CONCUR:

Siddoway, A.C.J.

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