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SUPERIOR COURT OF THE STATE OF WASHINGTON

FORISLAND COUNTY

ALAN R. HANCOCK
Judge
VICKIE I. CHURCHILL
Judge
KAREN A. LERNER
February 16,2010 Court Commissioner
MICHAEL S. MERRINGER
Court Administrator
Kyle A. Loring, Esq.
P.O. Box 1344
Friday Harbor, WA 98250

Jonathan W. Cain
Deputy Prosecuting Attorney
P:O. Box 760
Friday Harbor, WA 98250

Stephanie Johnson O'Day, Esq.


P.O. Box 2112
Friday Harbor, WA 98250

Re: Friends of the San Juans v. SHB, San Juan County, and Woodman
San Juan County Cause No. 09-2-05191-9

Dear Counsel:

The court issued an oral decision in this case on January 22,2010. The court has been
advised that there may have been some problem with the recording of some portion of the
court's oral decision on that date. Accordingly, the court has decided to issue a written
decision, which follows. This decision is virtually identical to the court's oral decision of
January 22,2010.

On January 22, 2010, the court conducted a hearing on the W oodmans' s Motion to
Dismiss/Motion for Summary Judgment, the Friends of the San Juans's Motion for Order
Reversing Shorelines Hearings Board Order of Dismissal, and San Juan County's Motion
to Dismiss.

In April of2008, John and Barbara Woodman submitted an application for a shoreline
substantial development permit (SDP) to allow them to extend an existing bulkhead on
their shoreline property on San Juan Island. The application was denied by the San Juan
County Hearing Examiner on October 31,2008. The Woodmans appealed the denial to
the Washington State Shorelines Hearings Board.

On May 13,2009, the SHB issued its Findings of Fact, Conclusions of Law, and Order in
SHB Case No. 08-032. The order states:

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Island County, P.O. Box 5000, Coupeville, WA 98239-5000 (360) 679-7361 FAX (360) 679-7383
"The County's denial of the Woodmans' SSDP is reversed, and the Woodmans'
application is remanded to San Juan County for issuance of an SSDP consistent with the
foregoing ruling of the board, and including the following conditions: ... "

Initially, a SDP for the bulkhead was signed on June 15,2009, by Ron Henrickson, the
then director of the San Juan County Community Development and Planning
Department, and sent to the Department of Ecology. It was recognized that the decision-
maker under the county code is the hearing examiner, and therefore the county contacted
the DOE on June 16,2009, and asked that processing of the permit be delayed.

The San Juan County Hearing Examiner issued a decision on July 2,2009, which
approved the Woodmans's SDP with conditions, including the conditions required by the
SHB's order. The hearing examiner's decision includes a copy of the SHB order and
incorporates it by reference. On July 22,2009, a new permit with the hearing exai11iner's
decision attached was mailed to the DOE to replace the June 16 permit.

Friends of the San Juans filed a "Petition for Review of San Juan County Permit No.
08SJ007" with the SHB on July 7,2009, which alleges that the county's issuance of a
SDP to the Woodmans does not comply with either the Shoreline Management Act or the
San Juan County Shoreline Master Program. There is no claim in the petition that the
county failed to comply with the SHB's May 2009 order. The Woodmans and the county
filed motions to dismiss on the grounds that the challenge to the county's SDP issuance
was in fact a challenge to the SHB' s May 2009 order which could only be appealed in
superior court pursuant to the Administrative Procedures Act.

Both the \Voodmans's motion and county's motion were granted and the case was
dismissed by the SHB in an order dated September 29,2009. The order of dismissal is
the subject of this appeal to this court.

The county characterizes the issue in this case as whether this court has jurisdiction to
review San Juan County's issuance of a SDP when permit issuance was required by an
order of the Shorelines Hearings Board which has not been appealed.

The Friends contend that the issue is more properly whether the Board has jurisdiction to
hear an appeal of a shoreline permit.

The Woodmans contend that there is no legal basis for the Friends's appeal based on
WAC 173-27-130(10) and the law of the case doctrine, among other things.

TIns is an unusual case. A petition for review of a decision of the SHB that essentially
presents the identical issues previously litigated in the SHB is unprecedented in this
court's experience. There is a strong policy in the law regarding finality of cases and
issues previously decided by a court. This policy is expressed in well-established
doctrines such as res judicata, collateral estoppel, and the law of the case. As a general
proposition, there is a basic unfairness in the concept that even though a case or an issue

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has previously been decided, it should be decided again because someone is unhappy
with the previous result.

Most, if not all, objective observers would find it unfair, in a general sense, that the
Friends would seek to litigate the same issues that were previously decided by the SHB,
or could have been decided by the SHB, all over again. Nevertheless, this is a court of
law, and the court must apply the law in an objective manner regardless of whether the
result might seem unfair in a general sense.

The court is well mindful of the policy of the Shoreline Management Act and the
county's shoreline master program and regulations. The Friends as an organization has
many salutary purposes, and it has every right to bring administrative or court cases in
furtherance of its purposes. It has presented factual material in support of its appeal in
this case, but all of this is beside the point. This case presents a purely legal issue for
determination by the court, and therefore summary judgment in one form or llilother is
appropriate in this case. This case is not about the merits of the SHB' s decision to
overturn the hearing examiner's decision and order the issuance of a SDP to the
Woodmans, though it appears that the SHB's decision was thorough and well-reasoned.
Rather, this case is about whether the Friends can appeal the issuance of a permit that has
already been the subject of an appeal on the merits to the SHB.

In passing, the court would note that the factual material placed into the superior court
record by the Friends as to the merits of whether the SHB should have ordered the
issuance of the permit to the W oodmans should not be considered by the court. This is
because the proper forum for factual material to be presented on a SDP application is at
the hearing before the hearing examiner at the county level, and then at the hearing before
the SHB in the event of an appeal. If there is an appeal to superior court from the
decision of the SHB, the hearing is on the record before the SHB pursuant to RCW
34.05.558. The Woodmans's motion to strike is granted. The declarations of Kyle
Loring and James Slocomb submitted by the Friends in connection with these motions
are stricken.

Returning to the legal issue at hand, the law does require in this case that the Friends'
petition for review be dismissed. The most obvious reason for this is that the issuance of
the Woodmans's SDP in this case was a clerical or ministerial act, not a discretionary act.
There is, in effect, nothing upon which the Friends can seek review in this case.

As previously noted, the Woodmans applied for a SDP to extend their existing bulkhead.
The county hearing examiner denied their application. Under RCW 90.58.180(1) and (3),
the Woodmans appealed to the SHB pursuant to the Administrative Procedure Act,
chapter 34.05 RCW. The SHB conducted a de novo review pursuant to WAC 461-08-
500 and 461-08-555, and entered a final decision overturning the hearing examiner's
decision and ordering the county to issue the permit.

The AP A also governs appeals of SHB decisions, and no appeal was filed in superior
court within 30 days from the date of the board's decision or order. Thus, the SHB

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decision ordering the county to issue the permit became a final decision no longer subject
to review. There is no provision in the law permitting the SHB to review its own final
decision.

The county correctly points out that it had no discretion in issuing the permit to the
W oodmans. The county was required by law to carry out the SHB' s decision, which it
did. For this very elementary and basic reason, the Friends have no legal basis for
appealing the issuance of the permit. The only possible basis for allowing any review of
the issuance of the permit by the county would be if the county had issued the permit
contrary to the instructions ofthe SHB order. Of course, that did not happen in this case.
The county properly issued the permit in accordance with the board's order. Other than
the remote possibility of this limited review of the county's permit issuance, it would
make no sense to allow a third party to challenge the SHB-ordered issuance of the permit.
The only thing left to do after the SHB's decision in the original case became final was to
issue the permit. The Friends have no right to seek review of this decision.

In a very real sense, these propositions are so basic that it is no surprise that there is little
direct authority on the issue. It is highly likely that there is so little authority because
virtually everyone understands that there is but one appeal allowed of a decision by a
governmental body to either issue or deny a SDP. There is no record of any other party,
other than the Friends in the present case, having contended otherwise.

Another way to express the legal basis for disallowing the Friends's appeal in this case is
to refer to the specific provisions of RCW 90.58.180. The applicable part of subsection
.180(1) provides that "any person aggrieved by the granting, denying, or rescinding of a
permit on shorelines of the state pursuant to RCW 09.58.140 may ... seek review from
the shorelines hearings board by filing a petition for review within 21 days of the date of
filing as defined in RCW 90.58.140(6)."

RCW 90.58.140 provides, generally, that a substantial development shall not be


undertaken on shorelines of the state without first obtaining a SDP from the applicable
governmental entity having jurisdiction. It further states the standards that must be
applied to a permit application, notice requirements generally, notice requirements if a
hearing is to be held on the application, and the nature of the burden of proof. In the
present case, there were no notice requirements for a hearing because no hearing was
required. The hearing was held in connection with the prior proceedings that resulted in
the appeal to the SHB. Given that this is the case, the permit issued by the county
pursuant to the order of the SHB was not issued in accordance with subsection .140 of the
statute, but rather pursuant to the order of the SHB. Thus, there is no right of appeal
under RCW 90.58.180(1).

Turning to another issue raised by the parties, WAC 173-27-130(10) provides:

"When a permit has been appealed pursuaIlt to RCW 90.58.180, upon conclusion of all
review proceedings, a copy of the final order shall be provided by the local government
to the department. When the project has been modified in the course ofthe review

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proceeding, plans or text shall be provided to the local government, consistent with the
provisions of WAC 173-27-180, that clearly indicate the final approved plan and the local
government shall reissue the permit accordingly and submit a copy of the reissued permit
and supporting documents consistent with subsection (3) of this section to the department
for completion of the file on the permit. The purpose of this provision is to assure that
the local and department files on the permit are complete and accurate and not to provide
a new opportunity for appeal of the permit."

The W oodmans argue that this provision governs this case, and precludes the court from
granting the Friends any relief. The county argues that this WAC applies by analogy and
bars the Friends from seeking review of the issuance of the permit.

It may be true, as the Friends argue, that this WAC does not directly apply by its own
terms to the present case because it talks about when a permit (underscore the word
permit) has been appealed pursuant to RCW 90.58.180. Of course, in this case, the
Woodmans appealed from the denial of their permit application by the hearing examiner.
They prevailed on their appeal, and the SHB ordered the county to issue the permit.

On the other hand, the policy of the law is clearly expressed in this provision of the WAC
when it states: "The purpose of this provision is t6 assure that the local and department
files on the permit are complete and accurate and not to provide a new opportunity for
appeal of the permit." It would be singularly incobgruous to disallow a further appeal in
a situation where a permit has been appealed, but to allow another appeal where a permit
has been denied but then ordered to be issued on appeal. That would make no sense at
all. I

In its decision denying the Friends's appeal in this, case, the SHB took note of its decision
in Save a Valuable Environment v. City of Bothell, SHB No. 85-39. The board stated:

"In SAVE, the Board concluded that the reissuance of a permit is legally distinct from the
granting of the permit in the first place. The Board determined that the reissuance of a,
permit is a clerical act, and that the appeal right granted under RCW 90.58.180 does not
apply to reissued permits. Under these circumstances, the Board determined that its
review power is limited to the sole issue of whether a reissued shoreline permit is
consistent with the Board's final order." (page 10.)

The Friends try to distinguish the SAVE decision by saying that it is limited to the
context of a reissuance of a shoreline permit and because the petitioner in that case had
already challenged the buffer that it was challenging in the later permit. But there is no
meaningful distinction between the reissuance of a permit and the issuance of a permit
pursuant to the order of the board. Both are clerical or ministerial acts, and there is no
appeal right from a clerical act. To that extent, the SAVE case supports the position of
the Woodmans and the county in the present case.

There is little question that in considering the statutes and administrative code provisions
as a whole, the legislative intent is to bring finality to proceedings involving SDP permit

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approvals and denials. Generally speaking, the law provides an opportunity for aggrieved
parties to appeal decisions they disagree with, to have hearings before the SHB on such
appeals, and to obtain binding, final decisions. To allow another appeal of a final SHB
decision would fly in the face of the policy expressed in the law. The fact that the WAC
does not have a specific provision outlining the procedure to be followed in a case such
as this is not surprising. There are some things that are so basic that it is not necessary
that they be expressly stated in the law.

It is important to note that the Friends were not without a remedy in connection with the
Woodmans's permit application. As the Woodmans pointedly note, the Friends did, in
fact, participate in the proceedings before the hearing examiner, and their issues were
fully explored by the hearing examiner and later by the SHB on appeal, with the possible
exception of the issue of cumulative effects, and that issue could also have been
presented to the hearing examiner and later to the SHB had the Friends sought to
intervene in the SHB case. In that regard, the Friends had every right to move to
intervene in the original SHB decision, but for some reason declined to do so.

As the SHB pointed out in its decision dismissing the Friends's petition in this case:

"WAC 461-08-435(2) authorizes the presiding officer to grant a petition for intervention
by any person at any time [emphasis added], and the Board routinely grants requests to
intervene by individuals and groups demonstrating an interest in the action consistent
with CR 24 (providing the standards for intervention as a matter of right and permissive
intervention)." SHB decision, page 8.

It would be singularly incongruous to allow the Friends to have another review of the
ments. OLf t.he permIt.. Issuance w.hen tHe
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sanction that would be to allow the Friends to effectively sit back, decline to intervene in
the case before the SHB, allow for the SHB to review the proposal on the merits and
enter a final decision, and then if the Friends did not like the result, to appeal again,
forcing the Woodmans to go through the whole process all over again. This is contrary to
law and cannot be countenanced. It would, in effect, set up the possibility of a seemingly
endless series of appeals in shoreline permit matters.

Let's assume, for the sake of argument, that the Friends were permitted to pursue their
appeal in this case. Let's further assume that they prevailed on their appeal and the SHB
ordered the denial of the permit. The Woodmans would no doubt appeal from that
decision to superior court. Let's assume the superior court upheld their appeal, and
directed the issuance of the permit. In that situation, what would prevent some other
person or group from appealing the issuance of the permit to the SHB? Though, in oral
argument the Friends's attorney attempted to distinguish this situation, the answer would
appear to be none, under the Friends's reasoning in the present case. Theoretically, this
process could go on forever, yet that would obviously be absurd. Statutes and regulations
should be construed in such a manller as to avoid absurd results, and this lends fuliher
support to the position of the Woodmans and the county.

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The SHB cited the law of the case doctrine as support for its decision to deny the
Friends's appeal, and the board may be correct. On the other hand, the Friends argue that
the law of the case doctrine should only be applied against those parties who were parties
to the same case when the prior decision was rendered. Since the Friends was not a
fonnal party to the original case, it argues that the law of the case doctrine should not be
applied against them. The court finds it unnecessary to reach the issue of whether the law
of the case doctrine bars the Friends's appeal in the present case. The court has decided
this case on more basic issues, as the court has already outlined.

The Friends contend that affirmance of the SHB's order dismissing the Friends's appeal
would violate its state and federal constitutional rights to due process and equal
protection under the law. Its arguments in this regard have no merit for the reasons set
forth by the respondents, among other reasons.

In summary, the motions to dismiss of the \V oodmans and the county are granted, and the
Friends's motions are denied.

The Woodmans seek attorney fees under RCW 4.84.185 and CR 11. While it is true that
the questions presented for the court's determination by the Friends are not close issues,
the court cannot say that the Friends's appeal in this case is frivolous or in violation of
CR 11. There is no case directly on point, and the Friends presented issues of statutory
construction and other issues that needed to be resolved by the court. Reasonable
attorney fees are denied. Of course, the respondents Woodmans and San Juan County are
awarded their statutory attorney fees and costs.

The court will entertain a judgment and order consistent with this oral decision.

Very truly yours,

~IG~
Alan R. Hancock
Judge

Copies: Hon. Joan White, Clerk of Court


File

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