Reply Brief — Lake Lawrence, Inc. v. Thurston County

Supreme Court, U. S.

FILED

NO. 79-1880 SER 17 1980

IN THE MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

OCTOBER TERM 1979

LAKE LAWRENCE, INC.,

Appellant,

Vv.

THURSTON COUNTY, et al.,

Appellees.

ON APPEAL FROM THE SUPREME COURT

OF THE STATE OF WASHINGTON

APPELLANT'S REPLY

TO MOTION TO DISMISS OR AFFIRM

PHILIP P. MALONE

Counsel for Appellant

Office and PO Address

P.O. Box 443

Poulsbo, WA 98370

ABCD AT CRAFTSMAN ?RESS. SEATTLE

TABLE OF CONTENTS

Page

There Are Substantial Federal Questions

For This Court to Decide and the Court

Has Jurisdiction as a Matter of Right

and Discretion Under 28 U.S.C. §

1257(2) an@ (3)... . = Bae oe ee

The Judgment Below Was Not Based On

an Adequate Non-Federal Basis as a

matter of Pact and law . «+s» s » «on

CRGAGGSOR « + + ek kh we eee 20

Appendix ° . + . . . . . - . . 7 . A- 1

TABLES OF AUTHORITY

Table of Cases

Agins v. City of Tiburon, U.S.

, 65 L. Ed. 2d 106, 100 S. Ct.

A SOee we ‘+ + © 6. Cee

Berman v. Parker, 348 U.S. 26 (1954) 15

Bishop v. Town of Houghton, 69 Wn.2d

786, 420 P.2d 368 (1966) .... 2-3

Cramp v_ Bd. of Public Instruction,

e668 U.S. 278 (iPea) ¢ ss wee 16

Creswill v. Grand Lodge Knights of

Pythias of Georgia, 225 U.S. 246

[S92h) 6 64 ee eee eee 10

Dahnke-Walker Milling Co. v. Bondurant,

237 U.G. 202 (1921). «+ « «+ = eee

Davis v. Wechsler, 263 U.S. 22 (1923) 10

ii

Page

Dept. of Ecology v. Ballard Elks,

84 Wn.2d 551, 572 P.2d 1121 (1974) 14

Dept. of Highways v. Environmental

Council, 82 Wn.2d 551, 572 P.2d 1121

DT * % -¢ © «8 ¢© © © «© © © © © « 14

First National Bank v. Anderson,

269 U.S. 341 (1926) . . . «© « « «© « 9

Fiske v. Kansas, 274 U.S. 380 (1926) 9,10

Hayes v. Yount, 87 Wn.2d 280, 552

P.24 1038 (1976). . . « « «© «© «© © © 12

Hull v. Hunt, 53 Wn.2d 125, 331 P.2d

6 SD ee ee 2

Kaiser Aetna v. United States,

U.S. ; sou S&S. Ct. 383 (1979) . . 6,11

Merkel v. Port of Brownsville, 8 Wn.

App. 844, 509 P.2d 390 (1973) .. . 14

National Assoc. for the Advancement

of Colored People v. Federal Power

Commission, 425 U.S. 647 (1976)... 15

Ogden v. City of Bellevue, 45 Wn.2d

492, 275 P.2d 899 (1954). ...... 2

Parkridge v. Seattle, 89 Wn.2d 454,

S73 P.2€ 359 (1978) . . . «© «© e we we © 8

Penn Central Transportation Co. v.

City of New York, 438 U.S. 104

(1978) * . . . . . . 7 . . ° 7

Raley v. Ohio, 360 U.S. 423 (1958). . . 16

o 2 «© « Ol

iii

Sharinghouse v. Bellingham, 4 Wn.

App. 198, 480 P.2d 233 (1971) .. . 3,18

Sisley v. San Juan County, 89 Wn.2d

78, 569 P.2a 712 (1977) . . «© « « - 14

State ex rel. Kuphal v. Bremerton,

59 Wn.2d 825, 371 P.2d 37 (1962). . 18

State ex rel. Welch v. Seattle

School Dist. No. l, 45 Wn.2d 6,

Zia Oeaa OL tases) s & ew we ew eo 12

Staub v. City of Baxley, 355 U.S. 313

[aeevie 6 & He Bee ee eK 8 els 9

Sterling v. Constantin, 287 U.S. 378

oo > > | Nee erm oe ee oe ee ee 6

United States v. Lee, 106 U.S. 196

2 3 rarer eae ee oe ee ee ee ee eee

Constitutional Provisions

U.8- Const. Amend. V. ° . . ° ° ° . 2,4,5

U.S. Conet. Amend. XIV . +--+ + » 2¢4sae0a2

Wash. Const. art. 1, sec. 16 . « « ef 4=§

Statutes

RCW Ch. 34.04 (Administrative Procedure

Act). . . . . a . . . * 7 - . ° . . 8,16

RCW Ch. 43.21C (SEPA: State

Environmental Policy Act) . . . 1,4,7,8,

12,13,et seq.

RCW Ch. 58.17 (Platting

Stetetels « « « vw we ee © w Reed Pee

Ps

iv

Page

RCW Ch. 90.58 (SMA: Shorelines

Management Act) ...... .1,2,7,8,14

Thurston County Ordinances

Comprehensive Plan ........ 13,17

Shorelines Master Program... 2,3,7,1l1l,

12, et seq.

Textbooks

Hill, The Inadequate State Ground,

65 Col. L. Rev. 943 (1965) ....- .- 10

THERE ARE SUBSTANTIAL FEDERAL QUESTIONS FOR

THIS COURT TO DECIDE AND THE COURT HAS JUR-

ISDICTION AS A MATTER OF RIGHT AND DISCRE-

TION UNDER 28 U.S.C. § 1257(2) and (3)

Substantial federal questions of

importance were presented, expressly passed

upon, or necessarily decided by the judg-

ment of the court below. They remain the

same and are now presented in the Jurisdic-

tional Statement. The appellees' motion is

actively misleading to camouflage their

importance by implying that the property

rights and freedom of the appellant were

merely regulated by the operation of valid,

constitutional statutory regulations!, of

SEPA, the platting statute, and SMA2,

in that the actions of appellees merely

constituted an adjudication of facts in

carrying out that linked "validity”

lpenn Central Transportation Co. v. City

of New York, 438 U.S. 104 (1978); Agins v.

City of Tiburon, U.S. » 65 ke Bd.

2d 106, 100 S. Ct. (1980).

2SEPA: State Environmental Policy Act,

Chapter 43.21C, J.S., App., A~266; Platting

Statute, Chapter 58.17, J.S. App., 58.17;

SMA: Shorelines Management Act, Chapter

90.58, J.S. App. A-280.

2

and therefore the questions presented are

disputes of fact not of importance for this

Court to decide (Motion 8-13).

In summary, a decision to one group

of those questions, Qs. 1-2, is dependent

upon a decision to the other group, Qs.

3-8. The first summarized question that

arises is whether the Fifth and Fourteenth

Amendments guarantee the exercise of the

fundamental rights of a person established

by common law and statutes having validity

by equally, area-wide, applying written,

informative standards limiting those rights

that have been held to statutorily vest and

cannot be retrospectively changed, even

by legislation, after an application has

been made in compliance with their regula-

tions3, i.e. SMA and its Master Program

30gden v. City of Bellevue, 45 Wn.2d 492,

495, 275 P.2d 899 (1954); Hull v. Hunt, 53

Wn.e2d 125, 127-131, 331 P.2d 856 (1958);

Bishop v. Town of Houghton, 69 Wn.2d 786,

3

regulations, and leave it up to the free-

dom, liberty and discretion of a person to

make a choice as to both how to choose to

use and use, enjoy, dispose of and make a

procsit from private property for residen-

tial purposes, so long as the choice and

use is made and limited within the bounds

of written, informative standards, specifi-

cations and guidelines set forth in regula-

tory statutes having validity because of

the information of the standards they

contained and their area-wide application

to property, without having singled out one

piece of property only, which have been

held to establish rights of a person as to

how to choose to use and use private

footnote cont.

795, 420 P.2d 368 (1966); State ex rel.

Kuphal ve. Bremerton, 59 Wn.2d 825, 828,

Sei eee oe (1962); Sharinghouse v. Belling

ham, 4 Wn. App. 198, 203, 480 P.2d 233

(1971); Parkridge v. Seattle, 89 Wn.2d

454, 460-461, 462-467, 573 P.2d 359 (1978).

Compare: United States v. Lee, 106 U.S.

196 (1882).

4+

property that are in compliance with their

written, informative standards‘.

The appellant challenged that the

appellees exercised such powers of govern-

ment to deprive and take away such liberty

of choice and property rights of appellant

in excess and beyond the scope of SEPA and

the platting statutes' expressed or implied

delegated authority; that the excessive

exercise of such state police power by

administrative adjudication deprived the

appellant of its freedom, liberty and

rights as to how to choose to use and use

its private property, and that such actions

resulted in its private property rights

being taken for public use without just

compensation as protected by the due

process and equal protection clauses and

prohibited by the Fifth and Fourteenth

Amendment and Article I, Section 16 of the

4supra, footnotes 1 and 3.

S

Washington Constitution. Or, in the

alternative, if the statutes, as applied,

delegated to the appellees such authoritv

such statutes were invalid for the same

reason>. The judgment ruled against the

challenges made as to the first alternative

and the second alternative (J.S. 2-8).

The second question that arises is

if the person has those rights, can the

person's rights to just and fair judicial

procedural and substantive due process and

equal treatment of the law in obtaining

judicial remedies against the local govern-

ment and its public officials, who exer-

cised those state police powers under color

of state law, claimed to be in violation of

its Fifth and Fourteenth Amendment rights,

inter alia, be likewise checkmated, circum-

vented and thwarted by that same local

government and its public officials for a

SDahnke-Walker Milling Co. v. Bondurant,

257 U.S. 282, 288-289 (1921).

6

second time claiming while adversary

parties to actions commenced against them

for the same violations that they have

police powers unbounded by any statutory

procedural or substantive standards or

guidelines to authorize them to procedur-

ally proceed out of court and by fiat make

substantive findings and conclusions of law

out of court and file them in court as

judicial proof of their authority and

substantively dispositive of the judi-

cial constitutional claims against them, as

the judgment has authorized the appellees

to do so and continue to do in the future

On any application by the appellant to be

made to use its private property®?

This second summarized federal ques-

tion appears in Questions 1 and 2 of the

6See J.S. Judgment, App. A-199; United

States v. Lee, 106 U.S. 196 (1882); Ster-

ling v. Constantin, 287 U.S. 378, 396-398

(1932); Kaiser Aetna v. United States,

Tees yy: See ee we 6 Be. Chee)

+

Jurisdictional Statement and was passed

upon and necessarily decided when the court

held:

"[TjJhe Commissioners are not bound

by the findings of the Shorelines Hear-

The order accepting appellate juris-

diction and staying the pending trial

likewise passed upon the procedural and

substantive authority of the appellees to

do so, and the court below to have juris-

diction, when the appellees chose not to

appeal the Board's decision to the trial

court and yet circumvented the SEPA proce-

dural and substantive safeguards;’ the

mandates of SMA and the Master Program

SEPA, procedure: 43.21C.030(2)(a)-(e);

substantive: 43.21C.060, J.s. App., A-

266-269.

8

regulations8 and "contested" the Board's

SMA and SEPA findings out of court and

presented their findings and conclusions in

trial court and the court below as proof of

their authority in face of the prohibition

of the Administrative Procedure Act?2.

THE JUDGMENT BELOW WAS NOT BASED ON AN

ADEQUATE NON-FEDERAL “BASIS AS A MATTER OF

FACT AND LAW

The jurisdiction of the Court in

this case is not based upon the invalidity

of language appearing on the face of

SsMA, "A permit shall be granted . . .”,

90.58.140, (2)(b), J.-S. App., A~288-289;

Shorelines Hearing Board, 90.58.170-180,

J.J. App. A2950-198; changing of Master

Program regulations, 90.58.1190, J.S.

App., A-299; lands adjacent to shoreline

lands, 90.58.340, J.S. App., A-300.

9see J.S., Administrative Procedure Act,

RCW 34.04.130 Contested cases-Judicial

Review, (1), (3); Appellant's Motion and

Memo for Discretionary Review, J.S., App.

A-153, 173; Supreme Court Order Accepting

Certification, J.S., App. A-183; Appel-

lant's Motion For Reconsideration, J.S.

App. A-202; Supreme Court Order Denying

Motions for Reconsideration, J.S. App.

A-245.

9

Statutes, but the absence of language and

the interpretation and application of

language of statutes, the validity of which

was upheld by the judgmentlO, he guris-

dictional Statement need not to have

pointed in questions raised to statutory

language on its face that was not in-

valiall, Nor does the statement call

upon the Court to resolve disputes of

facts; except to examine the record that

the appellees' actions were not the exer-

cise of administrative adjudication in the

application of valid, area-wide, land-use

regulations that the motion claims, and

there is no evidence in the record to

Support facts found by the court below to

10pahnke-Walker Co. v. Bondurant, 257

U.S. 282 (1921); First Nat. Bank v.

Anderson, 269 U.S. 341, 345-347 (1926);

Motion, para. 4, pg. 9.

llrtpid, Fiske v. Kansas, 274 U.S. 380,

385 (1926); Staub v. City of Baxley, 355

U.S. 313, 319-320 (1957); Motion, para.

4, pg. 9

10

Support its conclusions of law as to state

and federal questions interdependent upon

those facts found by the court.12

"Springes" may not be set, "for those who

are endeavoring to assert rights that

the State confers", and the assertion of

federal rights are not to be defeated by

procedural or substantive “springes" of

state law, when "plainly and reasonably

made"13, The motion sets "“springes"

when camouflaging the appellees' actions to

be the authorized application of “valid"

statutory regulations authorized by the

trial court return of the record; the

Shorelines Hearings Board decision; and the

stipulation, when there is no evidence in

l2riske v. Kansas, 274 U.S. 380, 385-

380 Ci 926)3 Creswill v. Grand Lodge

Knights of Pythias of Georgia, 225 U.S.

246, 20% (CidSil);. Metion, para. 2, pg.ll:

l3pavis v. wecneier, 263 U.S. 22, 24-

25 (1923); Hill, The Inadequate State

Ground, 65 CLR 943 (1965).

1l

the record to support those conclusionsl4,

The only source of statutory proce-

dural and substantive authority used by the

appellees when making their first and

second decision on environmental grounds

only to not approve the appellant's first

Choice of a plat subdivision of 27 residen-

tial lots, authorized by the standards

of the Master Program regulations, and

succeeding submissions of the appellant

to demands made by the County reducing

the number of lots to 24 and finally to 22

lots; not issue a shorelines permit for

such subdivision, and not permit a private

community pier to be constructed for

private family residential use of the

land and the use of the riparian rights15,

was the use of isolated language of the

l4Motion, ppe 3-8, 11-12.

i Pe ee 20-24; Kaiser Aetna v. United

States, _ 9.8. , £00 $$. Ges ee

12

platting seakuie and SEPAL6®, not imple-~-

mented by any valid area-wide statutory

regulations, such as the Master Program

standards for subdivision and use of the

land upon which the appellant relied.

The appellees and the judgment

justified the jurisdiction and authority of

the appellees and the jurisdiction of the

court below!7 on inadequate state grounds

to authorize the appellees while adversary

parties making a second environmental

Bemem $6.17.110, 3.8., App. A-277:

“The . .« . county legislative body shall

inquire into the public use and interest

proposed to be served. ...", by the

platting. J.S., Judg., App. A~-193-194;

196-198. RCW 43.21C.030, J.S., App.

A-266: “The legislature authorizes and

directs that, to the fullest extent pos-

sible: (1) The policies, regulations, and

laws of the state of Washington shall be

interpreted and administered in accordance

with the policies set forth in this act. .

eo « J.S., Judg., App. A-197-198.

l7state ex rel. Welch v. Seattle Schl.

ore wis ££. 25 Wne2d 6, 272 2.26 617

(1954); Hayes v. Yount, 87 Wn.2d 280, 552

P.2d 1038 (1976) at 286 and 287; Dept.

of Highways v. Environmental Council, 82

Wn.2d 280, 510 P.2d 216 (1973) at 282-287.

13

decison out of court when not appealing to

the trial court the Shorelines Hearings

Board decision and to act as advocates,

judge and jury of their own author-

ity, when circumventing the expressed

procedural and substantive safeguards of

statutory laws.18

The judgment after first concluding

that the Comprehensive Plan "governs

here", against the objection that its

application would amount to discriminatory

"spot zoning": J.S., Judg.,-App. A-189,

based on the isolated, broad, extensive

language of SEPA and the platting statute

held that the Commissioners have:

SEPA .. . and that the denial of

the plat in this case does not violate

respondents' rights to due process or

constitute a taking of private property

for public use without compensation."

(J.S., Judg., App. A-192-193; empha.

added)

18supra footnotes, 7-9,

14

The conclusion of the independency

of the procedural, substantive, adjudica-

tory authority of the Commissioners to make

a second decision was based upon inadequate

state grounds when narrowing the substan-

tive, adjudicatory authority of the Board

under SMA and SEPA to the shorelines

area only of the sitel9 and holding

the Commissioners had greater independent,

procedural and substantive authority than

the Board when applying the broad, vague,

uncertain, ambiguous and isolated language

of the platting statute. 20

19Merkel ve Port of Brownsville, 8 Wn.

App. 844, 850-51, 509 P.2d 390 1973; Dept.

of Ecology v. Ballard Elks, 84 Wn.2d LiF

Foe, Bee Bek@ Flak CEPTA): Sisley v.

San Juan County, 89 Wn.2d 78, 83, 569

P.2d 712 (1977). Cf., results of ‘ndonant

with cases cited in footnote 7. O28 te

inconsistency. The Master Program defini-

tion of “residential development" (J.S.,

App. A-~362) includes the non-physical

“legal division of real estate"; supra

footnote, 7, 8 and 9.

20compare: The trial court's conclusions:

3.4 Public Interest and 3.5 Legislative

15

Then in answer to the challenge that

the isolated language of the platting

statute was over-broad, ambiguous, vague,

and misleading and would be a violation of

the due process and equal protection of law

guarantees of the Fourteenth Amendment when

applied to implement through administrative

adjudication its language and not valid

statutory regulations, the judgment incon-

Sistently shifted, dodged, evaded, and

without any adequate or tenable state

authority arbitrarily concluded that the

Commissioners' authority to deny the plat

“derives essentially from SEPA" and that

Since SEPA is not a:

Footnote Continued

Intent re Platting. The trial court's

decision on 'vagueness' is in accord with

this Court's decision limiting the scope of

the term ‘public interest' in National

Association for the Advancement of Colored

People v. Federal Power Commission, 425

U.S. 647, 669-670 (1976). Note also the

platting statute used the term “public use”

that the judgment applied. Cf., Berman v.

Parker, 348 U.S. 26 (1954).

16

"C[Rlegulatory statute prohibiting

certain types of conduct and impos-

ing sanctions for violation of its

Standards, the vagueness doctrine as

such is not applicable. See Blond-

heim _v. State, 84 Wn.2d 874, 878,

A-197.)

The reasoning is completely contrary

to a similar evasion of the same challenge

made to a non-regulatory vague Florida

statute that this Court held invalid2l.

In this case such application is more of an

unfair trap caused by the conflicts from

“voice of the state" that arise when the

appellant relied on SMA; the valid Master

Program regulations; the procedural and

substantive safeguards of SEPA; the Admin-

istrative Procedure Act, and the prior

decisions of the court below with which the

judgment is inconsistent22.,

2lcramp v. Bd. of Public Instruction,

368 U.S. 278, 280, 287-288 (1961).

22Raley v. Ohio, 360 U.S. 423, 438-439

(1958); Suara, feoetnote 3, 7, 8 and 9,

17

The non-SEPA environmental criteria

that the appellees used and the judgment

justified for the Commissioners to deter-

mine that a "cluster configuration" was

favored as a non-SEPA "“alternative"23,

Over the choice of the appellant's subdi-

visions and that the status of eagles was

"endangered", so as to determine to deny

the plat and issuance of a shorelines

permit on environmental grounds of their

Own making, was by borrowing that language

from the Comprehensive Plan, a plan that on

its face states its purposes as being a

“blueprint” for legislation only and not

adjudication in that it had not been

implemented by any valid area-wide regula-

tions and therefore created no statutory

rights, benefits or detriments; except upon

23Trial Court's findings, 2.7 Alterna-

tive Conditions, J.S. App. A-121; A-116:

“the court believes that the actions of the

respondents will destroy the property for

all practical human uses" (Memorandum

Opinion).

18

the appellant by political adjudication

only in this case.24 The judgment upheld

the validity of the plan's application

as not being an act of “spot zoning" in the

face of the "Rural Environment" statutory

zoning designation of the property (Judg.,

J.S. App. A-189), and also held that the

actions of the Commissioners' use of the

plan's language would not result in inverse

condemnation in that subject to the will of

the Commissioners there is a "possibility"

that they may approve a plat with a "clus-

ter configuration" with less lots to

protect the status of the eagles as "endan-

gered" under the plan (J.S., Judg., App.

A-199). The finding of such "possibility"

24second Decision, J.S. App. A-76-79;

Plan, J.S. App. Forward, A-381; Wildlife,

A-396; State ex rel Krupehral v. Bremerton,

539 Wn.2d 825, 371 P.2d 37 (1962); Shar-

inghouse v. Bellingham, 4 Wn. App. 198,

480 P.2d 233 (1971).

f

19

has no evidence in the record25 to

Support it and support the judgment's

conclusion, based on that vague “possi-

bility", that the appellant had a "balance

test":

"(P]resent, possible, and reasonably

profitable alternative use to which"

its property is "adaptable". 26

The appellant's Opportunity to a hearing on

that fact was cut off by the appeal and

judgment. The "possibility" is more

remote when the second decision was based

upon the appellees' lack of environmental

knowledge of the impact to eagles by human

use of the property, a SEPA duty that the

appellees didn't fulfil127.

25First Decision, J.S. App. A-30; Second

Decision, J.S. App. A-69; Appellant's Pet,

and Affidavit for Review and Prohibition,

J.-S. App. A-32; Motion for Prohibition-S,

Ct., J.S. App. A-232.

26supra, eeetanotes 21, 3.38. Judg., App.

A-199-120

27supra footnote 7, 43.21C.030(2)(a)-(e);

43.21C.060, A-266-269; Second Decision,

J.-S. App. 77-79, Supra, footnote 23,

20

CONCLUSION

The broad, vague language of SEPA

and the platting statutes applied by the

appellees had not been implemented by

informative, valid, environmental, statu-

tory regulations equally applicable to the

benefit and detriment of the private use of

property on the lake, as the valid Master

Program regulations did upon which the

appellant relied. The appellees used vague

language only as authority to act under the

guise of administrative adjudication to

create the procedural and substantive means

they employed to implement by adjudication

de facto, special, legislation, and change

the property rights of the appellant. The

judgment and jurisdiction of the court

below is without an adequate, non-federal

basis and is in conflict with opinions of

the court on federal questions (see Appen-

dix).

Respectfully submitted

Philip P. Malone

Counsel for Appellant

APPENDIX

FEDERAL QUESTIONS IN CONFLICT WITH

OPINIONS OF THE COURT

1. May common law and statutory

rights to use private property, held to

have vested! after an application is made

to local government for permission to use

private property, be made misleadingly to a

person of common intelligence,2 and be

retrospectively3 changed and "taken" away

by the application by government of broad,

misleading, statutory language4 for a

public use or purpose5 "without the

constitutional way of Paying for the

change"© to effect under the guise of

lrootnote 3 of text.

*Raley v. Ohio, 360 U.S. 423 (1958).

3United States v. Lee, 106 U.S. 196 (1882).

4cramp v. Bd. of Public Instruction, 368

U.S. 278, 287-288 (1961); National Assoc.

For Adv. of Colored People v. Federal

Power Com., 425 U.S. 647 (1976).

SBerman v. Parker, 348 U.S. 26 (1954).

6Penna. Coal Co. v. Mahon, 260 U.S. 393,

416 (1922).

A-2

administrative adjudication a change of

those rights to implement a plan, a "blue-

print" for future legislation,? without

valid legislation,8 a separate power of

government ?9

2. May public officials by such

application of statutory powers, unfairly,

unequally,1l9 on an ad hoc, piecemeal,

discriminatory basis, arbitrarilyll pick,

choose, and select as they may determine

Only the appellant's liberty and rights to

be burdened as a condition to their confer-

ring governmental permission to use private

7 Footnote 22 of text.

8kKaiser Aetna v. United States, 2s.

» 100 S. Ct. 383, 390 (1979; Penn

439 U.S. 883 (1978); Agins v. Tiburon,

U.S. 65 Le. Ed. 2d 106 (1980).

9Mugler v. Kansas, 123 U.S. 623, 662

10tpid, 8.

llsupra, footnote 3; People v. Tibbits,

305 N.E. 2d 152, 155 (1973).

A-3

property by withholding that permission

enforceable by criminal sanctions if used

without it?12

3. Can public officials demand by

force of criminal sanction that the use of

private property be set aside within a

selected piece to preserve areas of the

natural environment as they may choose free

from all human activity, otherwise author-

ized by valid area-wide standards of

environmental statutory regulations for the

protection of that same environment, the

Shorelines Master Program comprehensive

regulations, upon which the person mislead-

ingly reliedl3 and when that burden is

imposed on no other use of private property

in the area, the county, or in the state

where it is located, so as not to have an

12platting Statute, 58.17.300, Viola-

tions-Penalties, J.S. App. A-280.

133.5, 14-42.

A-4

"average reciprocity of sivdetbushts

to the appellant when changing those rights

expressed by valid regulations, promulgated

by “administrative adjudication only when

the appellees usurped that function so

legislatively expressed of the will of the

people?15

4. Is a hearing and substantive

decision out of court by a party's adver-

saries determinative of those questions as

having such naked powers justifying the

appellees’ actions in making a second

decision and determinative by the judgment

reversing the trial court's mandamus order

l4supra, footnote 6, 260 U.S. 383, 415;

footnote 8.

15 Eastlake v. Forest City Enterprises,

Inc., 426 U.S. 668, 675; Mr. Justice Powell

dissenting, 680; Mr. Justice Stevens with

Mr. Justice Brennan, 680-689, citing

Fasano v. Board of County Comm'rs, 264 Ore.

74ms SOU" OOL, BUF Feed. 23,. 26° €1973)

and Fleming v. City of Tacoma, 81 Wn.2d

Sah S9OrERT, SUS Foae B27, 33:1 (1972).

A-5

and pending trial for constitutional

damages and compensation equivalent to a

fair and impartial trial in court in final

determination of those questions?16

16sterling vv. Cosesentia, 2827 Bane

378 (1932); United States v. Lee, 106 U.S.

196 (1882).