SKAGIT COUNTY HEARING EXAMINER

STATE OF WASHINGTON

 

In the Matter of the Appeal of )

CITY OF ANACORTES ) AP 00 0114, AP 00 0115

)

From an Administrative Determination ) FINDINGS OF FACT,

Relating to the Necessity for a Shoreline ) CONCLUSIONS OF LAW

Permit and Associated SEPA Review ) AND DECISION

____________________________________)

)

CITY OF ANACORTES)

Appellant, )

v. )

SKAGIT COUNTY, and )

TWIN BRIDGE MARINE )

PARK LLC, )

Respondents. )

____________________________________)

THIS MATTER is an open record appeal relating to permit requirements under the Shoreline Management Act (SMA) and satisfaction of the procedural requirements of the State Environmental Policy Act (SEPA) (Files Nos. APL 000115 and 000114). The case came on for hearing on May 24, 2000.

The Appellant City was represented by Ian Munce, Assistant City Attorney. The Respondent Count was represented by Tom Karsh, Planning Director. Respondent Twin Bridge Marine Park was represented by Sam Baker and Claudia Augustine, Attorneys at Law.

On the basis of the record made, the Examiner enters the following:

 

PROCEDURE/MOTIONS

1. The Record.

At the hearing, Twin Bridge filed a Motion to Dismiss. In addition, at the close of the hearing Twin Bridge announced an intention to submit excerpts from a deposition of Ian Munce (given in another proceeding) to supplement the record in this matter. Their representation was that the supplemental submission would be made within a few days. The Examiner then provided the City a week to respond to the Motion to Dismiss and advised that Mr. Munce would have a week to respond in writing to the supplemental information when and if it was submitted.

The City’s response to the Motion to Dismiss was timely filed on May 31, 2000. On June 2, 2000, the Examiner, having received no supplemental information from Twin Bridge, sent a Memo to the parties advising that he had closed the record.

Thereafter, Twin Bridge asserted it had been given two weeks from the hearing date (or until June 7, 2000) to make supplementary submissions. The Examiner has reviewed the tapes of the proceeding and does not find a basis for Twin Bridge’s assertion. The Examiner had assumed that Twin Bridge would supply its material within the same one-week time frame Mr. Munce was given on the Motion to Dismiss.

Subsequently, on June 6, 2000, Twin Bridge submitted supplemental information, consisting of the Declaration of William Youngsman, excerpts from the Munce deposition and a draft of a Department of Ecology document. On June 7, Twin Bridge filed a reply to the City’s response on the Motion to Dismiss.

The Examiner has determined that the confusion over time allowed for post-hearing submissions stems to some degree from a lack of clarity in his instructions to the parties. Accordingly he has decided to accept the supplementary material submitted and the reply brief and to include them in the record.

The City’s post-hearing Motion for Rule 11 Sanctions and Attorneys Fees is also made part of the record.

The Examiner considered all of the briefs of the parties and the County’s entire record herein.

2. Motion to Dismiss - Standing

This appeal concerns the evolution of a development that had its genesis in an environmental impact statement written in 25 years ago. The present project is referred to as the Twin Bridge Marine Park. Twin Bridge Marine Park LLC is the sponsoring entity.

By a Motion to Dismiss, Twin Bridge contests the standing of Anacortes to appeal SEPA compliance. The Motion does not explicitly address the City’s standing to raise issues of compliance with the Shoreline Management Act, but presumably is intended to challenge the City’s standing in that regard as well.

Anacortes operates the regional water utility for western Skagit County and north Whidbey Island. In its capacity as water purveyor, the City owns an easement across the Twin Bridge property containing a 36-inch water transmission line. The line is the primary source of water for the cities of Oak Harbor and Anacortes, as well as the Equilon and Tesoro oil refineries and the Whidbey Island Naval Air Station.

The City asserts that construction of the proposed Twin Bridge project, as authorized by building permits issued by the County, could harm the regional water supply and the City’s property interest by causing damage to the transmission line as it runs through the center of the Twin Bridge property. The City’s concerns in this regard have been expressed through letters to the County which are part of the County’s voluminous file on the Twin Bridges Marin Park.

The matter appealed here is the propriety of issuing building permits for development on the Twin Bridge site without requiring either a new shoreline permit or a shoreline permit revision, and without engaging in more extensive environmental review under SEPA.

The determinations that no additional shoreline permit action and no additional environmental review are need are administrative actions of the County. Skagit County Code (SCC) 14.01.060 provides for the appeal to the Hearing Examiner of administrative actions by applicants or “parties of record.”

The term “party of record,” as defined, includes any person who has submitted a written statement related to a development action and who provides the County with a mailing address. SCC 14.01.020(93). The City of Anacortes is a party of record.

Therefore, under the County Code, the City clearly has standing to appeal the matters appealed in this case to the Hearing Examiner.

Twin Bridge cites well-established authority that SEPA standing in court is not satisfied by parties whose sole design is to protect economic interests. But, Anacortes’s interest in providing a safe and reliable water supply to the region is a concern far broader than just dollar and cents.

Moreover, the City’s interest in the integrity of its waterline is a concern for a listed element of the built environment - one of the various specifically identified subjects that environmental review is required to address. See WAC 197-11-444(2)(d)(vii), 197-11-440(6). The interest allegedly endangered here is thus among those things that are explicitly within the zone of interests protected by SEPA.

In addition, as a general purpose governmental entity, with special responsibilities as a water purveyor that maintains a waterline within the subject shoreline, the City has an interest in the orderly, planned and appropriate shoreline development that is encompassed within the zone of interests protected by the policies of the SMA. See RCW 90.58.020.

As a matter of pleading, the City’s allegations are assertions of potential injury in fact. The City is talking about a discrete physical structure, a pipeline, which could be damaged. Accordingly, the City satisfies the relevant judicial standing tests. See, e.g., Kucera v. Department of Transportation, 140 Wn.2d 200, 995 P.2d63 (2000).

The Twin Bridge Motion also seeks to make something of Anacortes’ failure to appeal the original permits for the development of the subject property and subsequent revisions thereto. However, the instant appeal is limited to whether those project components recently approved by building permit are properly subject to additional SMA permitting and SEPA review.

The City did not waive its rights to appeal administrative actions on the present Marine Park project by declining to appeal earlier approvals.

In sum, Twin Bridge’s Motion is without merit. The Motion is denied.

3. Motion for Rule 11 Sections and Attorney Fees.

During the course of the hearing, counsel for Twin Bridge asserted that he had information showing that counsel for the City had helped to draft a Notice of Correction relating Twin Bridge’s current development activities issued by the Department of Ecology. This assertion was vigorously denied by counsel for the City. The evidentiary submissions that Twin Bridge eventually made concerning this proposition fell far short of proving the matter asserted.

Following the hearing, the City filed a Motion for Rule l1 Sanctions and Attorney Fees in relation the raising of the matter.

The Twin Bridge response to the Motion for Sanctions was to argue that the deposition excerpt it provided goes to the weight that the DOE Notice of Correction should receive in this proceeding. After reviewing the material, the Examiner has admitted it, but assigns little weight to the deposition itself. There is no substantial support for the notion that the Department of Ecology is not independently issuing its own letters and notices.

Notwithstanding the above, the Examiner does not think that Civil Rule 11 covers the oral assertions of counsel at hearing. Moreover, he has no basis for concluding that counsel for Twin Bridge did not have a good faith belief in the truth of his assertion when he made it.

Further, the Examiner finds no source of authority in the County Code by which he could impose Rule 11 sanctions and attorneys fees if he were inclined to do so. Therefore, the Motion is denied.

 

FINDINGS OF FACT

1. The factual matters set forth in the foregoing discussion entitled “Procedure/Motions’ are adopted by the Examiner as findings.

2. The property referred to as Twin Bridge Marine Park consists of 15.14 acres including an estimated 4.6 acre man-made moorage basin with a 60-foot wide man-made channel connecting the basin with the Swinomish Channel. The upland portion of the site is a flat area filled with sand dredged from the construction of the adjacent artificial moorage facility.

3. The property is located on the east shore of the Swinomish Channel near its northerly end. To the south are Josh Green Lane and Highway 20. The highway’s two large arching concrete bridge spans over the waterway give the Marine Park its name.

4. In 1975, a Final Environmental Impact Statement (FEIS) was written for a project on the subject property sponsored by Marine Construction and Dredging, Inc, the predecessor of Twin Bridge. The project described in the FEIS involved the dredging of a basin to be used for the moorage of dredging equipment, and the placement of the dredge spoils on the adjacent upland as fill. Within the basin a dock, float and dolphins would be installed. Approximately four acres of upland were identified as the site for an office, shop, and maintenance building. Another seven acres were to be used for the storage of pipe and miscellaneous equipment without cover.

5. The FEIS described “Landed Structures” proposed for initial development as “a two story Office and Shop Building, approximately twenty four (24) feet by forty (40) feet in size” and “a radio antenna, approximately eighty (80) feet tall.” Associated road and parking construction included repair of the existing access road, extension of the gravel surface into the shop/office area, and provision for a maximum of 12 autos on an expanded gravel surface in the immediate area of the shop/office.

6. Included in the FEIS under the heading “Planned Future Development” were: “Repair and Storage sheds approximately one hundred by forty (100x 40) feet, open on three sides with concrete pad and footings.” On the only site map included in the FEIS only one such larger structure is shown.

7. The total square footage in buildings described in the FEIS is 4,960 square feet.

8. A shoreline Substantial Development/Conditional Use Permit was issued to Twin Bridges’ predecessor by the County in December 1984 and approved by the Department of Ecology in March of 1985. This permit was applied for in 1982 and is known in these proceedings as Permit #7-82.

9. Permit #7-82 authorized the following development:

“placement of about 90,000 cubic yards of landfill, construction and operation of marine dredging and construction business and the storage of construction materials and equipment.”

10. The Permit was made subject to numerous conditions, including the following:

“3. The applicant shall submit a detailed drainage and water quality plan to the Planning Department which addresses the design, location and methods to be used for adequate site drainage, water quality and erosion protection. The plan shall be submitted and approved by Skagit County prior to the placement of ANY landfill material.

10. The utilization of the completed landfill site shall be limited to water dependent or related industrial activities.”

11. The Department of Ecology in its approval letter, dated March 20, 1985, stated the following:

“It is our understanding that this permit only authorizes 90,000 cubic yards fill to be placed on site and subsequent use of the site for the operation of a marine construction and dredging business to include storage of materials and equipment. Any other substantial development of the site such as buildings, shore structure, hard surfacing and drainage improvements will be submitted as a new permit or a revision to this permit . . .” (emphasis added)

12. Because the Department of Ecology has review and approval authority over shoreline conditional uses (in addition to the County), the terms of Ecology’s approval become terms of the issued permit. Accordingly, any use of the property different from “operation of a marine construction and dredging business” would constitute a change of use beyond the ambit of the original permit.

13. Another Shoreline Substantial Development/Conditional Use Permit was issued to Twin Bridge’s predecessor in 1986. This permit, identified as Permit #15-86, authorized the following development:

“Hydraulic dredging of approximately 40,000 cubic yards of material with upland disposal on site for the creation of a boat basin, with dock and dolphins, to moor the applicant’s dredging and construction equipment.”

The over-water structures approved were a 1280 square foot float and a 3,400 square foot pier and ramp.

14. The FEIS and the two original shoreline permits treated the project as a unitary whole. For shoreline approval purposes no attempt was made to segregate features within 200 feet of the Ordinary High Water Mark (OHWM) from features further inland.

15. Permit #7-82 was considered by the County to be linked to Permit #15-86 in that the dredge spoils from the boat basin were to be used to supply material for the landfill on the upland portions of the site. After approval of Permit #15-86 in that the dredge spoils from the boat basin were to be used to supply material for the landfill on the upland portions of the site. After approval of Permit #15-86, there followed a long delay in carrying out the site development. The delay involved an appeal over differences with the State fisheries agency about asserted eelgrass impacts. These matters were apparently not cleared up until late 1997 or early 1998.

16. In February of 1998, the County issued a revision to both of the original permits to allow reconfiguration of the project design. (hereafter referred to as Revision #1) The following were approved:

“A. A reduction of the total amount of fill and excavation from 130,000 cubic yard to 108,140 cubic yards.

B. Reconfiguration of the boat basin to measure 800 feet long by 140 feet wide having rock lined slopes a 1:5: 1 extending up to the fill placed at the site. The entire moorage basin is located behind the Swinomish Channel’s Ordinary High Water Mark (OHWM) with a 60 foot wide entrance channel connecting the basin the Swinomish Channel.”

In its approval letter of March 1998, the Department of Ecology emphasized that no change in use was authorized and added a condition stating: “All uses and activities not specifically authorized in Permits #SHL 7-82 and 15-86 are prohibited.” A requirement for a stormwater pollution prevention plan was also added.

17. In conjunction with the changes authorized in Revision 1, the County also issued a SEPA Addendum modifying the 1975 FEIS by briefly describing the changes authorized (i.e., the amount of fill and the configuration of the boat basin). The Addendum states that the revision does not substantially change the original environmental analysis.

18. In November 1998, the County approved another permit revision (hereafter, Revision 2), this time pertaining solely to Permit #7-82. This revision authorized the construction of four buildings totaling 88,0000 square feet, as follows:

“A. Building A, approximately 60,000 square feet in are, to be used for the fabrication and assembly of steel, concrete, wood, and fiberglass components for marine related equipment, vessels and structures.

Building B, approximately 4,000 square feet in area, to be used for administration, sales and engineering personnel.

Building C, approximately 12,000 square feet in area, to be used for warehouse and storage.

Building D, approximately 12,000 square feet in area, to be used for repair and maintenance of marine equipment, vessels and structures.”

19.

In connection with Revision 2, another FEIS Addendum was issued in October 1998 describing the proposal as a “clarification of building locations.” The structures described in the FEIS were summarized and the dimensions and uses for proposed Buildings A, B, C, D were described. No additional analysis of environmental impacts was provided.

20. On December 2, 1998, the Department of Ecology denied Revision 2, concluding that the proposal exceeded the criteria for being “within the scope and intent of the original permit. This denial was not a rejection of the proposal, but merely a direction to obtain a new shoreline permit. Among the reasons given for Ecology’s denial were that the ground area coverage of buildings was more than 10 percent greater than authorized under the original permit, and that the use authorized in the original permit had been expanded.

21. Ecology took the occasion to state, in addition, that the 1997 FEIS “does not adequately address the entire project as presently proposed.” The agency noted that the FEIS describes approximately 5,000 square feet of buildings, while the project presented includes 88,000 square feet of buildings.

22. An appeal of Ecology’s denial of Revision 2 was eventually withdrawn by Twin Bridge’s predecessor on February 8, 1999.

23. In June of 1999, Twin Bridge applied to the County for a Shoreline Substantial Development Permit for improvements on the subject property, now to be called the Twin Bridge Marine Park. The structures proposed were two “industrial use” buildings (also described as “water-dependent”); docks, pier, ramps and covered areas within the artificial moorage facility; surface improvements for drive lanes, storage, parking facilities; and underground utility improvements for drainage, sewer, water, telephone, gas and cable. In total the two proposed buildings had a floor area of approximately 28,800 square feet. The buildings were to be used for ship construction and repair of ship components.

24. This application was amended on August 6, 1999 to include an third building to the site layout. The total area of the three buildings was 40,800 square feet. The applicant emphasized that all three of the proposed buildings were located more than 200 fee upland from OHWM.

25. On September 3, 1999, Twin Bridge withdrew its shoreline permit application.

26. On the same day, September 3, 1999, the County approved three building permits for Twin Bridge Marine Park (#’s99-1065, 99-1226, and 19-1227). A conceptual site plan shows these to be the same three buildings which had been proposed in the withdrawn shoreline permit application.

27.

On January 14, 2000, the Department of Ecology wrote to the County advising that it considered the building permits approved in September to be inconsistent with the requirements of Permits #7-82 and #15-86. In the letter, Ecology expressed its understanding that the building permits would be suspended until concerns with proposed development were resolved.

28. On February 15, 2000, the County reviewed a letter from Anacortes advising that the City did not accept the County’s position that the issuance of the building permits “does not require either a shoreline permit revision or a new shoreline permit and associated SEPA review.” The City stated that unless informed to the contrary by February 18, 2000, it would conclude that the County had taken a “final action” under Section 13.02(2) of the County Shoreline Mater Program (SMP) and would proceed to appeal to the Hearing Examiner. The cited section allows appeals of administrative interpretations.

29. On February 24, 2000, the City filed the instant appeal. Sometime thereafter, the County amended building permits #99-1065 and #99-1226. The first became a different and much larger building containing 59,388 square feet. The second became a 7,800 square foot building, identified on plans as a future “marine retail facility.”

30. On March 7, 2000, the County issued another SEPA Addendum, reflecting the two buildings authorized under the amended building permits. Under “Description of Proposal,” The Addendum states, in its entirety:

“This addendum modifies the Final Environmental Impact Statement (FEIS 1975) for Shoreline Substantial Development/Conditional Use Permits #7-82 and 15-86. Building permits #19-1065 and 99-1226 modify fill and grade permit #95-0474 by adding drainage and site plan details as well as clearly identifying the building’s configuration, location and size.”

The Addendum state that the project “revision” is “insignificant” and that the new information about the proposal does not significantly change the environmental impact analysis.

31. March 14, 2000, the City filed an Amended Petition for Review, among other things referring to the new FEIS Addendum and the new building plans that it relates to.

32. As shown by the foregoing, the proposal for development of the subject site has - both in the past and recently - been something of a moving target. At the time of the hearing in the instant appeal, Twin Bridge was proposing to build two upland buildings, totaling 66,588 square feet in area. The waterward side of the largest of these is just beyond 200 feet from the OWHM. The other building is to be further inland.

33.

In reviewing the sizable County land use file on this property, amassed since the FEIS was written in 1975, the Examiner was frustrated in his search for a definitive explanation of exactly what the developers wanted to do with the site at any point. Significant details have always remained undefined, apparently with the idea that the blanks would eventually all be filled in.

34. As of this writing, the Examiner is still unable to a find a single clear and concise explanation of exactly how the developers now plan to use the property. According to the Twin Bridge Hearing Brief, the current plan is for “a marine storage and moorage facility with in-water floats and docks and upland building.” The plan contemplates the “launching and retrieval of vessels as well as a storage building available upland.” The 1975 project is described as a “primarily industrial heavy-user facility.” The year 2000 project is described as “a non-industrial, commercial low-intensity facility.”

35. The storage facility contemplated is the large upland building. The kind of storage planned is the storage of boats. The boats stored in the building will be launched and retrieved at the Twin Bridge site or transported elsewhere for launching and returned to the site by overland hauling.

36. Under the Skagit County Shoreline Master Program (SMP) the use contemplated appears to be a “backshore marina.” SMP 3.03. Although this is, by SMP definition, a form of industrial use, it is not a use that has ever been authorized in any of the shoreline permits or revisions for the Twin Bridge site.

37. Twin Bridge again emphasizes that the new buildings are outside of the 200 foot shoreline strip. However, they acknowledge that the storage building will be used in conjunction with shoreline activities. Use of the shoreline will include transporting boats by forklift to the storage site and mooring boats in the basin. Twin Bridge acknowledges that “minimal hard surfacing will be needed to operate the forklift between the building and the waterline.”

38. As shown on the plans a 10’ thick reinforced concrete slab will be placed between the storage building and the moorage basin. In addition, significant additional areas both within and outside of the shoreline strip are to be asphalted. Parking is to be provided both in and out of the shoreline.

39. As now proposed, the drainage system for the upland buildings will route stormwater away form the shoreline portion of the site, treat it and ultimately convey it away from the site for discharge to the Channel at a remote location.

40. The boat basin is in existence and docks and piers have apparently been installed. There is no record that the detailed drainage and water quality plan required by Permit #7-82 has ever been submitted. No shoreline permit of any kind has been issued in connection with buildings recently authorized by building permit. The larger of these is now under construction.

41.

Any conclusion herein which may be deemed a finding is hereby adopted as such.

 

 

 

CONCLUSIONS OF LAW

1. The Hearing Examiner has jurisdiction over the parties and the subject matter of this appeal. SCC 14.01.025(3).

2. Under the Shoreline Management Act (SMA), a permit is required for any “substantial development,” on shorelines of the state. RCW 90.58.140(2). The construction authorized under the building permits involved here is within the definitions of “development” and “substantial development” as set forth in the Act. RCW 90.58.003(3)(d), (e).

3. The “shorelines” include water areas and associated shorelands. “Shorelands” include areas extending landward for two hundred feet from the ordinary high water mark. RCW 90.58.030(2)(d), (f).

4. The statute (RCW 90.58.900) and case law (See, Hama Hama Company v. Shorelines Hearing Board, 85 Wn.2d 441 (1975)) call for the SMA to be liberally construed “to give full effect to the objects and purposes for which it was enacted.”

5. One of the explicit purposes of the Act is “to prevent the inherent harm in an uncoordinated and piecemeal development of the state’s shorelines.” RCW 90.58.020.

6. Twin Bridge’s argument is that the buildings authorized by building permit are outside the shoreline and therefore are not within the coverage of the SMA. As a corollary, they argue that all of the items to be built within the 200 foot shoreline area are already authorized, explicitly or implicitly, by the existing shoreline permits.

7. Their approach is neatly to segregate what is now and has always been one integrated project into shoreline and non-shoreline components. They then say that the inland portions are, in effect no concern of the shoreline management program. This disregards the obvious truth that in the overall project, the use of the uplands will inevitably influence the use of the shorelines.

8. The sometimes-intimate relationship between upland and shoreline development was early recognized in the case of Merkel v. Port of Brownsville, 8 Wn. App. 844 (1973). There inland activities were enjoined in connection with activity that was in reality conceived of as one project with inland and shorelines features.

9. In the instant case, the Twin Bridge Marine Park is without doubt located where it is because of a desire to make use of the shoreline. The underlying rationale for locating development on the site in the first place was to carry on a “water-dependent or water related” industrial use. See SMP 7.11. The new backshore marina as proposed is not less water-related than the prior potential uses. Otherwise all of the shoreline features of the project - the boat basin, the docks, the concrete loading slab - would not be needed. There is no proposal to erect a wall along the 200 foot shoreline boundary and seal off the shoreline from the uses being made on the other side. The intent is quite to the contrary.

10. Accordingly, for SMA jurisdiction purposes, the “development” contemplated must be taken to include the entire integrated project with both its shoreline and its inland component. Such interconnected “development,” even though it may in part cross the 200 foot boundary line is development “on shorelines of the state” for purpose of the permit requirement of the SMA,

11. When a permittee seeks to make substantive changes to the design, terms or conditions of a project that has received an SMA permit, either a new permit or a permit revision must be sought. Changes are substantive if they materially alter the project in a manner that relates to its conformance to the terms and conditions of the permit. WAC 173-27-100.

12. The terms of a permit include the description of the authorized use. Thus, whenever the use is altered from the original description, a substantive change has occurred. The upland uses allowed by Permit #7-82 are placement of fill, construction and operation of marine construction and dredging business and associated storage of materials and equipment. The backshore marina use now proposed is simply not within this description.

13. The terms of the original permit here also include the provisions of Ecology’s approval which restricted the use to a “marine construction and dredging business” and which expressly required new permitting action for “buildings, shore structures, hard surfacing, and drainage improvements.” (See Finding No. 11 above.)

14. The Examiner, therefore, concludes that the construction now proposed by Twin Bridge involves a substantive change to the terms of a permitted project.

15. In all such case, the permit revision regulation requires a look at whether the proposed change is “within the scope and intent of the original permit.” Changes of use are explicitly stated to be beyond the original scope and intent. WAC 173-27-100((2)(e).

16. Read in context, Condition #10, which limits use of the landfill site to water related industrial activities, is a restriction, not a grant of authority. Industrial use is a large generic category. The condition does not purport to go beyond the described development to make an independent and sweeping grant of permission to engage in any sort of water related industrial activity the permittee might at some point choose.

17.

The Examiner concludes that the presently proposed project involves a change in use from the originally permitted development. Accordingly, it is beyond the scope and intent the original pert.

18. When a change in a permitted project is beyond the scope and intent of the original permit, a new substantial development permit is required. WAC 173-27-100(3). Twin Bridge must, therefore, obtain a new shoreline permit.

19. The proposed buildings total well over 10 times more ground area coverage in buildings than contemplated in the FEIS written in support of the initial permits. To be within the scope and intent of the original permit here ground area coverage may be increased a maximum of 500 square feet from the approximately 5,000 square feet contemplated. WAC 173-27-100(2)(B). The scale of the presently proposed structures dwarfs those originally shown. On this basis also, a new shoreline permit is required in this case.

20. The SMP designates the shoreline at the Twin Bridge property as Rural. The original permits were for industrial development approvable in a Rural designation only as a conditional use. SMP 7.11.2(A)(3). The original permits were therefore combination substantial development/conditional use permits. The new proposed use appears to be with the same generic category of “industrial” and so the new permit must also be a combination substantial development/conditional use permit. This means that the Department of Ecology has a review and approval function. RCW 90.58.140(10).

21. Activity beyond the scope and intent of the original permits ordinarily would would trigger fresh environmental review. At the least, a threshold determination would be made to evaluate whether the changes are likely to have a significant adverse environmental impact.

22. Such an evaluation is essentially what the County did provide in its latest Addendum to the 1975 FEIS (March 7, 2000). It is the equivalent of a Determination of Non-Significance as to the modifications proposed. This decision may or may not have been correct. The original FEIS mentions “Planned Future Development,” but there is no mention of a backshore marina operated in conjunction with a boat basin. This new use suggests potential impacts in the area of auto traffic (entering and exiting near an entry to a heavily traveled highway bridge), increased boat traffic (in and around the Channel and the adjacent environmentally sensitive bay), the potential for petroleum spills and wash water pollution, the level of risk posed to the regional water supply pipe line, and the newly proposed stormwater drainage system (routing water off site to a remote discharge point on the Channel).

23. Perhaps the new use does not pose the likelihood of significant impacts in any of these areas. Or perhaps the impacts are adequately addressed by existing development regulations. See RCW 43.21C.240. But the problem is there is no record to show that these and other potentially different effects of the new use have ever been analyzed in detail by the lead agency in the SEPA context. The need for the systematic creation of such a record in what led to the creation of the Determination of Non-Significance process under the SEPA rules in the first place. See Juanita Bay Valley Association v. Kirkland, 9 Wn. App. 59 (1973). The Addendum of March 7, 2000, appears in this record more or less out of nowhere. It is entirely conclusory. There is no way to determine what analysis went into the conclusions reached.

24. The use of existing environmental documents under WAC 197-11-610 is not intended as a substitute for environmental analysis. It is, rather, a technique for showing that the requisite analysis has already been done. In this case the record does not demonstrate that the information added by the latest Addendum either (a) adequately describes the changes to the project or (b) adequately analyzes the effect these changes are likely to have.

25. Therefore, the Examiner concludes that compliance with the procedural requirements of SEPA is not demonstrated on this record. Processing of any application for a new shoreline permit for this project should be attended by a fresh environmental review effort that provides an adequate record for review.

26. Some may see the discussion and conclusions in this case as an elaborate effort to exalt form over substance. The required shoreline permit may indeed be issued. The environmental effects may, as the applicant suggests, really be benign. But following the mandated permit and attendant SEPA processes is important, independent of the particular outcome. The procedural precedent established is vital to the integrity of the shoreline management program as a whole.

27. The SMA permit process is a public process which allows public participation in the decision. Normally, this is also true of the SEPA process. In addition, the SEPA process has a Department of Ecology review function built-in whenever a conditional use is involved.

28. The effect of the procedural route chose by the County here has been to eliminate the role of both the public and the Department of Ecology from this particular development decision. As a precedent, this runs contrary to the spirit of the law in this area. This case exemplifies the sort of process that, if repeated, could lead to the very kind of piecemeal development that the SMA is designed to prevent.

 

DECISION

The administrative interpretation appealed by the City of Anacortes is reversed. The proposed development requires a new Shoreline Substantial Development/ Conditional Use Permit. Environmental review under SEPA should be undertaken anew in connection with any shoreline permit application the project proponents may file.

The examiner can find no grant of power on review of this administrative action to enter any kind of stay order respecting the building permits the County has issued.

Further construction, occupancy and operation of the premises are matters addressed to the County’s enforcement discretion.

 

SO ORDERED this 21st day of June, 2000

 

_________________________________

Wick Dufford, Hearing Examiner