Eric Niesz And Kendra Niesz v. Pierce County ( 2020 )

Filed
Washington State
Court of Appeals
Division Two
August 4, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
ERIC and KENDRA NIESZ, No. 52658-1-II
Appellants,
v.
JOHN WEST, CHRISTINE WEST,
WILLIAM REETZ, ERIN REETZ,
Respondents,
PIERCE COUNTY, STATE OF
WASHINGTON SHORELINES HEARINGS
BOARD, UNPUBLISHED OPINION
Defendants.
Worswick, J. — Eric and Kendra Niesz (“the Nieszes”) appeal a superior court order
affirming the Washington State Shorelines Hearings Board’s (Board) denial of their request for a
shoreline substantial development permit (SSDP). The Nieszes sought to construct a residential
single-use dock on public tidelands in front of their waterfront property. The Nieszes claim the
Board erred in numerous ways, including by making findings of fact that were not supported by
substantial evidence, by making erroneous conclusions of law, and by acting arbitrarily and
capriciously. We affirm.
FACTS
I. SHORELINE DEVELOPMENT
The Nieszes own residential property located on the southwest side of Fox Island in
Pierce County. There are no private docks along the entire southwest side of Fox Island. To the
No. 52658-1-II
north of the Nieszes’ property there are no docks or piers for a mile and a half, and to the south,
the nearest dock or pier is three miles away. The tidelands adjacent to the Nieszes’ property are
publicly owned through the Department of Natural Resources (“DNR”). The beach has a
gradually sloping gravel surface, and a low bank or no bank. The shoreline of the Nieszes’
property is improved with a two-foot eight-inch high concrete bulk head and a 96-foot long, 12-
and-a-half-foot wide concrete boat ramp connecting their property to the beachfront. The
Nieszes’ also have a buoy and a boat lift. The shoreline connected to the Nieszes’ property is
located in the conservancy shoreline environment of the Shoreline Master Program for Pierce
County (SMP). Respondents Erin and William Reetz own the property immediately north of the
Niesz property, and respondents John and Christine West own the property immediately south of
the Niesz property.
A. Single-Use Pier
The Nieszes sought participation from their two neighboring property owners to join in
the permit process and construction of a joint-use dock.1 Both neighboring property owners, the
Wests and the Reetzes, declined to participate. The Nieszes’ nevertheless filed an application for
a shoreline substantial development permit for the construction of a 154 foot (150 foot over
water) long single-use dock2 and buoy to be placed 245 feet off shore. The proposed dock would
consist of a four-foot wide, 90-foot long pier with 100 percent fiberglass deck; a three-foot wide,
1
A “joint use pier or dock” means, in part, “… a pier or dock … which is intended for the
private, noncommercial use of not more than four waterfront building lot owners…” PCC
20.56.010(J).
2
A “single use pier or dock” means “a dock or pier including a gangway and/or float which is
intended for the private noncommercial use of one individual or family.” PCC 20.56.010(I).
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46-foot long aluminum ramp; and a 16-foot wide, 24-foot long float. Four, 8-inch diameter,
galvanized steel pilings would support the float. The dock would extend from the top of the
existing concrete bulkhead, approximately 12 feet south of the existing boat launch. The dock as
proposed in the application did not provide for safe, convenient, and clearly available means of
pedestrian access over, around, and under the dock at all tide levels.
B. Conservancy Shoreline Environment
The Nieszes’ proposed construction project is located within the conservancy shoreline
environment of the Pierce County Shoreline Master Program of 1974. A conservancy
environment designation is “designed to protect, conserve and manage existing natural resources
and valuable historic and cultural areas in order to ensure continuous flow of recreational
benefits to the public and to achieve sustained resource utilization.” PIERCE COUNTY CODE
(PCC) 20.14.010. After natural environments, a conservancy environment is the second most
restrictive designation in terms of general regulations and policies governing substantial
development within the Shoreline Master Program for Pierce County. Compare PCC 20.14, with
PCC 20.08; 20.10; 20.12; 20.16. The policies of the SMP and water access facilities
development regulations discourage development of “piers associated with single family
residences” generally,3 and the regulations and policies of a conservancy shoreline environment
also provide that “areas should maintain their existing character.” PCC 19D.190; PCC
18S.40.140; PCC 20.14.020.
3
“Discourage [docks (piers, ramps, and/or floats)] that serve only one residence, and encourage
[docks (piers, ramps, and/or floats)] serving more than on residence.” PCC 18S.40.140.
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In the 20 years prior to the Nieszes’ application, 8 dock or pier development permits were
approved and constructed within the conservancy shoreline environment of Fox Island. These
docks and piers were constructed all within one clustered area of the northern side of the island
known as “Bella Bella Drive.” Clerk’s Papers (CP) at 290. Conversely, although there are many
residential developments along the approximately four miles encompassing the shoreline within
the conservancy environment adjacent to the Niesz property, there are no docks or piers on the
beach or tidal water. This stretch of pristine public owned land is frequently used by members of
the public, including local residents and neighbors, for beach walking, kayaking, boating, and
other marine and beach recreational activities.
II. PROCEDURAL HISTORY
A. Permit Application
Construction of piers and docks within a conservancy shoreline environment that exceed
fifty feet in length must meet certain criteria for approval of a SSDP. PCC 20.56.030(D). The
Nieszes submitted an SSDP request to the county for their dock project.4
4
Pierce County Code defines “pier” as “a structure which abuts the shoreline and is built over
the water on pilings and is used as a landing or moorage place for marine transport or for
recreational purposes.” PCC 20.56.010(B). The Code defines “dock” as “a structure which
abuts the shoreline and floats upon the water and is used as a landing or moorage place for
marine transport or for recreational purposes, but does not include recreational decks, storage
facilities, or other appurtenances.” PCC 20.56.010(A). A “float” is defined as “a structure
comprised of a number of logs, boards, barrels, etc., fastened together into a platform capable of
floating on the water, used as a landing or moorage structure for marine transport or for
swimming purposes. Floats are either attached to a pier or are anchored to the bedlands so as to
allow free movement up or down with the rising or falling water levels.” PCC 20.56.010(C).
The Nieszes project is technically an over-the-water-pier with a float. The Nieszes’ project
included a pier, a ramp and a float. The terms “dock” and “pier” are used interchangeably in the
record. The term “dock” is generally used to describe the entire proposed project.
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B. County Review Process
1. Gig Harbor Peninsula Advisory Commission
The Nieszes presented their request for a SSDP to the Gig Harbor Peninsula Advisory
Commission during a regular meeting held on April 13, 2016. The Nieszes presented testimony
in support of the application. The Commission also heard testimony from 14 members of the
public, including ten local nearby residents, all of whom testified in opposition to the proposed
dock. The Commission voted unanimously (with one abstention) to recommend denial of the
application for the proposed dock and pier permit, but approval of the proposed buoy permit.
The Commission reasoned that the proposed project would impede public access to a pristine
public beach and that there were already reasonable alternatives in place and should therefore be
denied.
2. Pierce County Hearings Examiner
On September 19, 2016, the Pierce County Department of Planning and Land Services
(“PALS”) concluded and transmitted to the Pierce County Office of the Hearing Examiner its
staff report (“Report”) of the Nieszes’ SSDP. The Report recommended denial of the pier and
approval of the buoy based on a review of application materials for compliance with applicable
policies, codes and regulations, as well as public comments.5
After reviewing the Report and examining the Nieszes’ application materials, the
hearings examiner held a public hearing in September 2016. The hearings examiner concluded
5
“PALS received [18] comment letters . . . in opposition to the proposal, including letters from
13 Fox Island residents and one non-resident property owner. Commenters identified concerns
regarding the proposed dock negatively impacting views and boating safety, and blocking or
significantly impeding public walking access along the beach.” CP at 1141.
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No. 52658-1-II
that the Nieszes did not meet their burden to show that their proposed dock project met the SMP
criteria and satisfied the Pierce County Shoreline Management Use Regulations. The hearings
examiner therefore denied the SSDP request for the dock but conditionally approved the
installation of the buoy.
C. Shorelines Hearings Board
In November 2016, the Nieszes filed an appeal of the hearings examiner’s decision with
the Washington State Shorelines Hearings Board. In December 2016, the Board issued a
prehearing order setting out the legal issues governing the case and an order granting leave for
both the Wests and Reetzes to join as interveners. The legal issues governing the case before the
Board that are relevant to the instant appeal were as follows:
1. Is the petitioner's proposal for a single use dock, approximately 154 feet long
(150 feet over water) and eight foot wide, consistent with the applicable
provisions of the Pierce County Shoreline Master Program, the Washington
State Shoreline Management Act [of 1971 (SMA)] (90.58 RCW),
Washington Administrative Code (Chapters 332-30, 461-08, 173-26, and
173-27), and any other applicable local regulations and plans?
2. Does the fact that the proposed dock is the first proposed in a defined Stretch
[sic] of Puget Sound somehow disqualify it from approval when it is a
permitted use?
3. Will the proposed dock unduly impair views taking into account that its
design meets all dimensional criteria?
.....
5. Can the dock proposal be mitigated to provide safe, convenient and clearly
available pedestrian access over, around and under the dock at all tide levels?
6. Does the fact that neighbors were offered but refused a joint-use dock
proposal disqualify the application for approval because it is still considered
a “single-use” dock?
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No. 52658-1-II
7. Under the facts and circumstances, is use of the Nieszes’ existing mooring
buoy and boat ramp unfeasible?
8. Where SMP policies are implemented by adopted use regulations, and those
regulations permit private recreational single-use docks in the applicable
shoreline designation, may those policies nevertheless be interpreted and
applied such to disqualify the dock proposal from approval?
....
11. Under the facts and circumstances, are significant cumulative impacts
reasonably foreseeable?
12. Whether the SSDP should be denied based on a cumulative impact analysis
utilizing the factors set forth in De Tienne [v. Shorelines Hearings Bd., 197
Wn. App. 248, 391 P.3d 458 (2016),] SHB No. 13-016?
CP at 675.
The Board held a hearing on the application in September, 2017.
1. Hearing Testimony
a. Testimony of Jordan Ramos
Jordan Ramos is the Nieszes’ son-in-law. Ramos testified that although the project as
presented to the hearings examiner did not comply with Department of Natural Resources
regulations requiring pedestrian access over, around, or under the dock at all tide levels, the
Nieszes “intend to comply with the DNR regulations” at some unspecified future time if their
permit was granted. CP at 171.6 Ramos testified that the Nieszes would place a sign on the
ramp to the dock “to the effect of, ‘Beach walkers welcome[,]’” if their permit were granted. CP
at 176.
6
WAC 332-30-114(4)(d) requires all docks over state-owned tidelands be constructed in a
manner that provides “a safe, convenient, and clearly available means of pedestrian access over,
around, or under the dock at all tide levels.”
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No. 52658-1-II
Ramos also testified that the Nieszes sought construction of the dock in part because they
wanted safe year-round mooring for their boat, and that the existing mooring buoy was
inadequate for this purpose due to rough weather during the winter season. Ramos also testified
that some members of the family had difficulty accessing the boat using the existing buoy
because of their age. Ramos also opined that the public moorage that was available on the island
was not close enough to be a reasonable alternative to the proposed dock.
b. Testimony of Carl E. Halsan
Carl Halsan was a real estate consultant hired by the Nieszes. Halsan testified that the
Nieszes intended to comply with DNR regulations requiring access for the public in and around
and over the facility at all tide levels. He also testified that a proliferation of docks on Fox Island
“has happened.” CP at 290. Halsan further testified that the primary reason a mooring buoy is
not a reasonable alternative to a dock is because a mooring buoy is less convenient for a property
owner to get to their boat than a dock.
c. Testimony of Wendell H. Stroud
Wendell Stroud is a marine contractor hired by the Nieszes. Stroud testified that based
on the design of the proposed project, the dock would not fail due to expected storms that
typically occur at the proposed site. Stroud testified that for 5 feet of clearance under the pier, a
person would need to walk out “30 or 35 feet” from the edge of the property toward the water.
CP at 224.
d. Testimony of Mojgan Carlson
Mojgan Carlson, a Pierce County planner, testified that the site is located in a
conservancy shoreline environment, and that the tidelands adjacent to the site are public lands
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No. 52658-1-II
regulated by DNR. Carlson opined that the construction of one single-use dock would encourage
more construction of other single-use docks in a neighborhood. Carlson testified that the fact
that there were other existing docks at the Bella Bella site was treated by the hearing examiner as
precedent to permit more dock construction. Carlson also testified that even though Bella Bella
was also a conservancy shoreline environment, the hearing examiner recognized that the
character of the shoreline was different than his conclusions about the character at the Nieszes’
site.
e. Testimony of Thomas D. Watkins III
Thomas Watkins, a retired lawyer and Fox Island resident of 20 years, lives five houses
north of the proposed site. Watkins testified that the beach where the proposed site is located is
“[p]ristine,” “[u]nobstructed,” has “[c]learance to walk miles to the north or to the south” and
“unlimited recreational opportunities for me and my family and my friends and the public.” CP
at 336. Watkins testified that the public uses the public access to walk along the beach at the site
“[c]onstantly.” CP at 351. Watkins testified that the proposed dock would act as a barricade to
public access to the beach at the site. Watkins testified that a person standing 6 feet tall would
not be able to clear the Nieszes’ proposed dock unless they were to walk out 45 feet waterward.
Watkins testified that there is “incredible intensity” of use of the shoreline by boaters and
kayakers that “go up and down the beach, usually 10, 15, 20 feet out from the shoreline. They’re
not going 150 feet out.” CP at 359.
Watkins testified that at the Bella Bella site, there are many docks that have existed
before the SMA was enacted. Watkins testified that shoreline at the Bella Bella site is “very
different” and that the Niesz site is “a pristine thing with no docks, with no need for docks,
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No. 52658-1-II
where you can use—reasonably use a mooring buoy. On Bella Bella Drive, you can’t do that.”
CP at 399. Watkins testified that because of the slope at the Bella Bella site, the beach is not
walkable, and that “it’s very difficult to have access to a boat without a dock.” CP at 386.
Watkins further testified that, in contrast to the Bella Bella site, the Niesz site
accommodates boaters driving their boats right up to the shore to load and unload passengers.
He further testified that he had “never heard a complaint about the usability and the
reasonableness of a mooring buoy,” and that it was the favored method of everyone on the
western side of the island, in contrast to the Bella Bella side where a mooring buoy was
untenable and a dock was required. CP at 386.
Watkins testified that the south side of the island where the Nieszes planned to install
their dock was visited by frequent and severe winter storms with “50-knot winds” and “waves
[that] get extremely high.” CP at 402. Watkins testified that for mooring boats in the winter,
“[m]ost people don’t. The winter is very windy, a lot of waves, a lot of storms, cold. People
don’t boat in the Winter normally, unless you’re a dyed-in-the-wool fisherman.” CP at 401.
Watkins, when asked hypothetically if he had a pier similar to the Niesz proposed pier if he
would leave his boat in the water during the winter, testified “[a]bsolutely not. [T]here’s a
reason for that, and it’s a scientific reason. The storms we have in the Winter, the waves we
have, the winds we have, the boat would be damaged or destroyed were that to happen. No one,
no one does that.” CP at 402. He further testified that “[he was] not aware of anybody that
really goes out in a boat in the wintertime . . . the Niesz[e]s do not use their boat other than
unusually, infrequent times . . . they would never do that in the Winter . . . they would not dare
leave their boat tied up in the float on the pier.” CP at 402-03.
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No. 52658-1-II
f. Testimony of John D. West
West, a 40-year resident of Fox Island and immediate neighbor to the south of the
Nieszes, testified that the Nieszes asked him whether he wanted to join them to construct a joint-
use dock, and that he declined. West testified that he uses the same buoy and dinghy method that
the Nieszes use to retrieve and use his boat. When asked if there were any limitations from this
method for use of his boat, West testified, “No, none whatsoever.” CP at 411. West also
testified that there had been no recorded drownings or injuries from anyone of the numerous
residents and their young children on the island using this method.
West testified that the public, as well as he and his family, frequently walk along the
beach at the proposed site. West testified that the area is frequented by kayakers and other
members of the public engaging in near shore marine recreation, including wakeboarders,
swimmers, water skiers, and others.
g. Testimony of Erin Dugger Reetz
Reetz is a resident since 2016 and immediate neighbor to the north of the Nieszes. Reetz
testified that her family used the buoy and dinghy method, consistent with the Nieszes, to
retrieve and use their boat. Reetz further testified that neither she nor her children ever had any
difficulties boarding the boat in this manner. Reetz testified that she found no inconvenience
with using the buoy method to moor and retrieve her boat.
Reetz testified that the beach at the Bella Bella site was sandier, steeper, and less
walkable than the Nieszes’ site. Reetz stated that the Bella Bella site was “unpleasant” to visit
because of “it’s succession of piers and docks . . . it feels like barriers to [beach walking]
forward.” CP at 462.
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No. 52658-1-II
h. Testimony of Matt Heim
Heim, a Fox Island resident of two and a half years, lives four houses to the west of the
Nieszes. Heim testified that the commute to the Narrows Marina is “10- to 15-minute[s].” CP at
465. Heim testified that he uses a mooring buoy and dinghy method for storing and retrieving
his boat. Heim testified that his three young children are all able to access his boats using this
method. Heim testified that even as an avid boater, he does not boat during the winter because
there is frequent “big water,” inclement and dangerous weather, and the sport fishing seasons are
closed. CP at 468. Heim testified that he cannot safely moor his boat year-round due to weather.
Heim testified that if the Nieszes’ dock were constructed, it would “change[] the use for
everybody, for little kids, for people that park their cars, for people that like to walk their dogs, to
kids that go stroll around for something to do.” CP at 471. Heim also testified that the proposed
dock would provide a “psychological barrier” for people who did not want to trespass to use the
beach, because they would be prevented from crossing the dock without trespassing onto the
Nieszes’ property. CP at 471. Heim testified that the proposed dock would change the character
of the beach from “what the beach is for, the public versus one person’s desire to have something
that . . . might seem to be a bit of a luxury item.” CP at 471. Heim further testified that a dock
was incompatible with the way the public and neighbors used the beach.
Heim testified that the proposed dock would be a physical barrier for beach walkers that
would require them to walk out into the water to pass by, including children having to walk out
into potentially dangerous conditions. Heim testified, when asked about the necessity of a dock
on the western side of the island, that
[p]lenty of people have enjoyed it for a hundred years on that side of the island.
There’s never been a pier because there isn’t a need for it. We don’t have a beach
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No. 52658-1-II
that requires it to pass muddy and mucky surfaces, to use your boat and extend the
day, let alone the season. We have access to this place pretty much whenever we
want in the current use model that it has. So no, I don’t think that there’s a need
for it. I can see that it’s a desirable thing to have and potentially creates joy for
them, but I don’t think at the expense of all of the countless number of people that
come up and down that beach daily.
CP at 474.
2. Board’s decision, findings of fact, and conclusions of law
In addition to its evaluation of the relevant laws, rules, and regulations, the Board
conducted a cumulative impacts assessment under Garrison v. Pierce County (De Tienne) SHB
13-016c (January 22, 2014), aff’d De Tienne, 197 Wn. App. 248 (2016). The Board used the
following factors from Garrison, SHB 13-016 at 54-55:
1. Whether a shoreline of statewide significance is involved;
2. Whether there is potential harm to habitat, loss of community use, or a
significant degradation of views and aesthetic values;
3. Whether a project would be a “first of its kind” in the area;
4. Whether there is some indication of additional applications for similar activities
in the area;
5. Whether the local SMP requires a cumulative impacts analysis be completed
prior to approval of an SSDP;
6. The type of use being proposed, and whether it is a favored or disfavored use.
The Board concluded that the Nieszes failed to demonstrate that the proposed dock was
consistent with the SMA and the County SMP and upheld the hearing examiner’s decision to
deny the Nieszes’ request for a SSDP for the proposed dock. The Board also found there would
be impermissible cumulative impacts from the proposed dock. The Board made 37 findings of
fact and 34 conclusions of law. Of those findings and conclusions, the following are contested
and at issue in this appeal:
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No. 52658-1-II
a. Findings of Fact:
ii. The proposed dock is a “single-use” facility (finding of fact (FF) 4)
iii. The proposed dock would impair or restrict beach walkers (FF 17)
iv. The proposed dock will impair nearshore marine recreation in the form
of kayaking, paddle boarding, swimming and boating (FF 17)
v. The Narrows Marina is a reasonable alternative (FF 22)
vi. A mooring buoy is a reasonable alternative (FF 23)
vii. Year-round use of the dock would be unsafe (FF 24)
viii. The dock would not significantly increase the boating season (FF 24)
b. Conclusions of Law:
i. The Pierce County Superior Court decision denying the SSDP is
affirmed
ii. The dock proposal is not consistent with the SMP and SMA policies
(Conclusions of Law (CL) 2; 15-31; 33)
iii. The proposed dock is not compatible with the surrounding land and
water uses and the proposed dock is not consistent with existing pier
density (CL 23; 31)
iv. Approval of an SSDP for the proposed dock in this location would likely
have cumulative impacts that would be inconsistent with the policies and
regulations of the SMP (CL 30)
v. The proposal would lead to more dock applications which would
degrade the aesthetic quality of the beach (CL 28-30)
vi. SMP policies and SMP regulations are considered together (CL 9)
vii. Reasonable alternatives to the proposed dock are available (CL 19-21;
26)
viii. The proposed dock would impair or restrict beach walkers (CL 15; 17;
23)
CP at 30-55.
D. Pierce County Superior Court
The Nieszes filed a petition to the superior court for judicial review, under RCW
34.05.570 and WAC 461-08-570, challenging the decision of the Board. In October 2018, the
Pierce County superior court denied the petition for judicial review and affirmed the decision of
the Board.
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The Nieszes appeal the superior court’s decision affirming the Board’s denial of their
SSDP application.
ANALYSIS
I. STANDARD OF REVIEW
We review the Board’s decision under the Administrative Procedure Act, chapter 34.05
RCW. RCW 90.58.180(3). We review the Board’s decision, not the decision of the local
government or the superior court, limiting our review to the record before the Board. Buechel v.
Dep’t of Ecology, 125 Wn.2d 196, 202, 884 P.2d 910 (1994). The party appealing the Board’s
decision bears the burden of demonstrating the invalidity of the Board’s actions. Preserve Our
Islands v. Shorelines Hearings Bd., 133 Wn. App. 503, 515, 133 P3d 31, 137 P.3d 31 (2006).
The Board’s decision may be overturned by the reviewing court under the bases found in
RCW 34.05.570(3), including (1) erroneous interpretation or application of the law, (2) lack of
substantial evidence, and (3) arbitrary or capricious action. Generally, an issue not raised before
the Board may not be raised for the first time on review. Buechel, 125 Wn.2d at 201 n.4.
We review the Board’s interpretation of the SMA and local government shoreline
regulations de novo because they involve questions of law. Preserve Our Islands, 133 Wn. App.
at 515. The interpretation of a master program provision is also a question of law. Jefferson
County v. Seattle Yacht Club, 73 Wn. App. 576, 589, 870 P.2d 987, review denied, 124 Wn.2d
1029 (1994). We generally accord deference to an agency’s legal conclusions; however, we are
not bound by them. Puget Sound Water Quality Def. v. Municipality of Metro. Seattle, 59 Wn.
App. 613, 617, 800 P.2d 387 (1990). We “give due deference to the Board’s specialized
knowledge and expertise, unless there is a compelling indication that the agency’s regulatory
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No. 52658-1-II
interpretation conflicts with the legislature’s intent or exceeds agency’s authority.” Samson v.
Bainbridge, 149 Wn. App. 33, 43, 202 P.3d 334 (2009). Likewise, when necessary to ensure that
a proposed project complies with the SMA, we may substitute our own judgment for an agency’s
legal determinations. Seattle Yacht Club, 73 Wn. App. at 589.
We review a decision based on the record before the Board. Frank Coluccio Constr. Co.
v. Dep’t of Labor & Indus., 181 Wn. App. 25, 35, 329 P.3d 91 (2014). We apply the substantial
evidence review standard to challenges to the Board’s findings under RCW 34.05.570(3)(e),
viewing the evidence in the light most favorable to the party which prevailed in the highest
forum that exercised fact-finding authority, and giving deference to the Board’s factual findings.
Olympic Stewardship Found. v. State Envtl. & Land Use Hearings Office through W. Wash.
Growth Mgmt. Hearings Bd., 199 Wn. App. 668, 686, 399 P.3d 562 (2017). We review the
whole record before the Board. RCW 34.05.570(3)(e). A finding is supported by substantial
evidence when “it would convince an unprejudiced, thinking mind of the truth of the declared
premise.” Seattle Yacht Club, 73 Wn. App. at 588. We do not disturb the Board’s judgment
regarding weight of evidence and questions of credibility. Stericycle of Washington Inc. v.
Wash. Utilities & Transp. Comm’n, 190 Wn. App. 74, 89, 359 P.3d 894 (2015). A decision
made by the Board is “clearly erroneous” when, in light of the entire record and the policies
contained in the SMA, we are “definitely and firmly convinced that a mistake has been made.”
Buechel, 125 Wn.2d at 202; see RCW 34.05.570(3)(e).
When reviewing the Board’s decision for arbitrary or capricious conduct, we ask whether
the decision demonstrated “willful and unreasoning action in disregard of facts and
circumstances.” Buechel, 125 Wn.2d at 202(quoting Skagit County v. Dep’t of Ecology, 93
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No. 52658-1-II
Wn.2d 742, 749, 613 P.2d 115 (1980)). A decision is not arbitrary or capricious if it is based on
honest and due consideration, even if a different conclusion could have been reached. Buechel,
125 Wn.2d at 202.
II. APPLICABLE LAWS AND REGULATIONS
A. State Shoreline Management Act
The Washington Shoreline Management Act of 1971 was enacted and codified under
chapter 90.58 RCW in order to meet “a clear and urgent demand for a planned, rational, and
concerted effort, jointly performed by federal, state, and local governments, to prevent the
inherent harm in an uncoordinated and piecemeal development of the state’s shorelines.” RCW
90.58.020. Accordingly, the SMA requires local governments to develop a master program to
regulate shoreline uses consistently with its guidelines. RCW 90.58.080(1). Local governments
must give preference to certain uses when crafting their SMP; listed below are the preferences of
uses in order of high to low priority:
(1) Recognize and protect the statewide interest over local interest;
(2) Preserve the natural character of the shoreline;
(3) Result in long term over short term benefit;
(4) Protect the resources and ecology of the shoreline;
(5) Increase public access to publicly owned areas of the shorelines;
(6) Increase recreational opportunities for the public in the shoreline;
(7) Provide for any other element as defined in RCW 90.58.100 deemed
appropriate or necessary.
RCW 90.58.020.
The legislature’s use preference for the shorelines of the state is found in RCW
90.58.020, and provides that:
Alterations of the natural condition of the shorelines of the state, in those limited
instances when authorized, shall be given priority for single-family residences and
their appurtenant structures, ports, shoreline recreational uses including but not
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No. 52658-1-II
limited to parks, marinas, piers, and other improvements facilitating public access
to shorelines of the state, industrial and commercial developments which are
particularly dependent on their location on or use of the shorelines of the state and
other development that will provide an opportunity for substantial numbers of the
people to enjoy the shorelines of the state.
Shoreline development in Washington must be consistent with the SMA and local
government’s corresponding shoreline master programs. RCW 90.58.140(1). The Washington
Administrative Code sets forth the following criteria to guide an agency’s review of a substantial
development permit:
(1) A substantial development permit shall be granted only when the development
proposed is consistent with:
(a) The policies and procedures of the act;
(b) The provisions of this regulation; and
(c) The applicable master program adopted or approved for the area.
(2) Local government may attach conditions to the approval of permits as
necessary to assure consistency of the project with the act and the local master
program.
WAC 173-27-150.
B. County Shoreline Master Program
The Shoreline Master Program for Pierce County, adopted in 1974, directs the County to
consider certain goals, policies and use regulations in its land use management actions. The
County Shoreline Master Program lists “piers” as a regulated “use activity,” and provides:
(a) Piers in conjunction with marina development in appropriate areas should be
allowed.
(b) Piers in conjunction with recreational development in appropriate areas should
be allowed, Consideration should be given to size and intensity of uses in relation
to adjacent shoreline uses.
....
(d) Piers associated with single family residences should be discouraged.
(e) In considering any pier, considerations such as environmental impact,
navigational impact; existing pier density, parking availability, and impact on
adjacent proximate land ownership should be considered.
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No. 52658-1-II
(f) Encourage the use of mooring buoys as an alternative to space-consuming
piers such as those in front of single family residences.
....
(l) The use of floating docks should be encouraged in those areas where scenic
values are high and where conflicts with recreational boaters and fishermen will
not be created.
....
(n) Priority should be given to the use of community piers and docks in all new
major waterfront subdivisions. In general, encouragement should be given to the
cooperative use of piers and docks.
Br. of Appellant (App. 3, at 2 (Shoreline Master Program)).
C. County Shoreline Regulations
In order to implement the goals and policies of the Shoreline Master Program for Pierce
County, the County codified its Shoreline Management Use Regulations under Title 20 of the
Pierce County Code. The purpose of the Shoreline Management Use Regulations is to “promote
and enhance the best interest of the general public” by “promot[ing] intensities and qualities of
development consistent with the protection of the shoreline environment and its related resources
and policy of the Shoreline Management Act of 1971.” PCC 20.02.010.
The Shoreline Management Use Regulations designate different environment types to
different categories of land “as a mechanism for applying appropriate land and water use policies
and regulations to distinctively different shoreline areas.” PCC 20.06.010. Environment
designations “encourage[] uses which enhance the character of the environment and at the same
time place[] reasonable standards and restrictions on developments which might disrupt the
character of the environment,” and are chosen based on the “existing development pattern, the
biophysical limitations and capabilities of the shoreline area, and the goals and aspirations of the
citizens.” PCC 20.06.010.
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No. 52658-1-II
There are five listed designations in the Shoreline Management Use Regulations, listed in
descending order from highest to lowest permissible intensity: Urban, Rural-Residential, Rural,
Conservancy, and Natural. Chapter 20 PCC. The lower the intensity, the higher the standards
and restrictions designed to maintain the existing character. The conservancy environment, on
the lower end of the intensity spectrum and higher end of the standards and restrictions for
development, is designed to “protect, conserve and manage existing natural resources . . . to
ensure a continuous flow of recreational benefits to the public . . . .” PCC 20.14.010. Policy and
regulations guide that conservancy shorelines “should maintain their existing character” and only
“[s]ubstantial and non-substantial developments which do not lead to significant alterations of
the existing natural character of an area should be encouraged.” PCC 20.14.020. The preferred
uses for conservancy shorelines are outdoor recreation activities, commercial timber harvesting,
and passive agricultural uses (pasture and range lands). PCC 20.14.030.
The Code includes the following “General Criteria and Guidelines for Reviewing
Substantial Development Permits” that the county may extend, restrict, or deny an application to
achieve:
(1) Important navigational routes or marine oriented recreation areas will not be
obstructed or impaired;
(2) Views from surrounding properties will not be unduly impaired;
(3) Ingress–Egress as well as the use and enjoyment of the water or beach on
adjoining property is not unduly restricted or impaired;
(4) Public use of surface waters below ordinary high water shall not be unduly
impaired;
(5) A reasonable alternative such as joint use, commercial or public moorage
facilities does not exist or is not likely to exist in the near future;
(6) The use or uses of any proposed dock, pier or float requires, by common and
acceptable practice, a Shoreline location in order to unction;
20
No. 52658-1-II
(7) The intensity of the use or uses of any proposed dock, pier, and/or float shall
be compatible with the surrounding environment and land and water uses.
PCC 20.56.040.
Under the “Piers and Docks” section of the Shoreline Management Use Regulations,
Pierce County states its intent for regulating substantial development of shorelines vis-a-vis piers
and docks:
It is the intent of Pierce County to encourage the construction of joint use or
community use docks and piers whenever feasible so as to lessen the number of
structures projecting into the water. To this end, waterfront property owners are
encouraged to explore the advantages of increased dock dimensions which are
afforded by the construction of a joint or community use structure.
PCC 20.56.020.
A “joint use pier or dock” means a “ a pier or dock . . . which is intended for the private,
noncommercial use of not more than four waterfront building lot owners,” while a “single use
pier or dock” means “a dock or pier including a gangway and/or float which is intended for the
private noncommercial use of one individual or family.” PCC 20.56.010(I)(J).
III. COMPLIANCE
A. Consistency with Shoreline Management Act
1. Single-Use Designation
The Nieszes argue that the Board erred in finding that their dock project was “single-
use.” Br. of Appellant at 25. We disagree.
The Nieszes specifically argue that because they sought the participation of their
neighbors (the same neighbors who now appear as respondents), and because their neighbors
declined, that the Board therefore erred when it deemed their project to be “joint-use” for
purposes of the permitting process, notwithstanding that they themselves captioned the project as
21
No. 52658-1-II
“single-use” on their own application. Br. of Appellant at 19. This argument contradicts the
plain meaning of the regulations defining joint-use and single-use. The Nieszes provide no
doctrinal justification for why the Board or this court should credit the Nieszes with the benefits
of a designation designed to encourage increased public access to shorelines just because they
merely asked their neighbors to participate in the permitting process.
The Nieszes also argue that their pier “by law is joint use” because “[w]hen another
waterfront owner wishes to use the dock, the Nieszes must allow them to do so per the DNR
regulation.” Br. of Appellant at 25. This argument fails because it has no basis in law, and it is
also misleading. WAC 332-30-144(4)(d) provides, “Owners of docks located on state-owned
tidelands or shorelands must provide a safe, convenient, and clearly available means of
pedestrian access over, around, or under the dock at all tide levels. However, dock owners are
not required to allow public use of their docks or access across private lands to state-owned
aquatic lands.” (Emphasis added.) This regulation does not convert the Nieszes’ dock to joint-
use.
The finding of fact that the pier was single-use turns on whether the Nieszes intended the
pier for their own private noncommercial use. PCC 20.56.010(I). The Board found that they
did, and that finding was supported by substantial evidence. First, the Nieszes characterized the
project as “[r]esidential single-use dock [and] buoy” in their application. CP at 581. Second,
Ramos testified that the pier’s purpose was to extend their family’s boating season, to provide
safe mooring for their personal boat, and to give safer and more convenient access for their
family’s personal recreation.
22
No. 52658-1-II
Although the Nieszes point to the fact that they sought participation from their two
neighboring property owners to join in the permit process, this court considers the whole record.
RCW 34.05.570(3)(e). Based on Ramos’s testimony and the Nieszes’ application describing the
pier as “single use,” we hold that there is substantial evidence to show that the project was for a
single-use pier.
The Nieszes further argue that the Board erred in concluding that a single-use pier is not a
preferred use under the policies of the SMA. We disagree.
We give deference to an agency’s interpretations unless they are clearly erroneous or in
conflict with the purpose and intent of the SMA, which gives primacy to increased public access
to shorelines. RCW 90.58.020. This court broadly construes the SMA in order to protect the
state shorelines as fully as possible. Buechel v. Department of Ecology, 125 Wn.2d 196, 203
(1994).
In Samson v. City of Bainbridge, we noted that piers are listed as a preferred use but only
insofar as they are an improvement facilitating public access to shorelines. 149 Wn. App at 51.
In that decision, we deferred to the Board, which concluded that the legislature did not intend
any special preference be made to private docks. See also, Spencer v. City of Bainbridge Island,
No. 97-43, at 9 (Wash. Shorelines Hr’gs Bd. Feb. 5, 1998) (“We conclude that the Legislature
purposefully distinguished between public and private piers and did not apply any particular
preference to the latter, which would limit public access in, rather than promote public access to
the waters of the state.”). The Board’s similar interpretation in the instant case is not in conflict
with the purpose and intent of the SMA. Each of the improvements in the SMA’s use preference
list is associated through “facilitating public access to shorelines of the state.” RCW 90.58.020.
23
No. 52658-1-II
Since a private, single-use pier is restrictive in terms of public access, it follows that the
legislature’s “priority” would not include such a pier as a preferred use. We hold that the Board
did not error in concluding that the single-use pier is not a preferred use under the policies of the
SMA.7
B. Consistency with Pierce County Policies and Regulations
1. Obstruction or Impairment of Marine Oriented Recreation Areas
The Nieszes argue that the Board erred in ruling that marine oriented recreation areas will
be obstructed and impaired by the proposed dock. We disagree. The Nieszes assign error to the
findings of fact and conclusions of law pertaining to the public’s ability to recreate on the beach
and water free from obstruction or impairment. These arguments fail.
First, the Nieszes argue that the board misinterpreted the criteria by not correctly
applying the preposition modifier “important” to both nouns in the series, including
“navigational routes” and “marine-oriented recreational area[s].” Br. of Appellant at 29. They
argue that the proper construction of “important” as applied to “marine recreation activities”
would have excluded the public lands in question from consideration.8 They argue that because
the record is “devoid of proof of any marine park designation or public boat launch at the Site or
7
The Nieszes also argue that “[t]he Board considered a dock as a disfavored use, a perspective
which erroneously permeated its decision.” Reply Br. of Appellant at 3. The word “disfavored”
only appears within the cumulative impact analysis criteria cited from Garrison v. Pierce County
(De Tienne) SHB 13-016c (January 22, 2014), aff’d, De Tienne, 197 Wn. App. at 248. In
conclusion 30, the Board concluded that the Nieszes’ single-use dock is discouraged under the
SMP Piers Policies; “(d) Piers associated with single family residences should be discouraged.”
Br. of Appellant (App. 3, at 2, (Shoreline Management Program)).
8
PCC 20.56.020A provides, “Important navigational routes or marine oriented recreation areas
will not be obstructed or impaired.”
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No. 52658-1-II
in the general vicinity[,]” that there was no obstruction or impairment of marine oriented
recreation areas. Br. of Appellant at 30. But the construction advocated by the Nieszes, that a
marine oriented recreation activity area is only “important” if it is a fixture such as a public boat
ramp or a designated park, frustrates the purpose of the Code in implementing the preferred uses
promulgated by the SMA. PCC 20.02.010; RCW 90.58.020. We favor an interpretation of the
SMA that furthers rather than obstructs the document’s purpose. The legislature plainly gave
preference to “increas[ing] public access to publicly owned areas of the shorelines” and
“increas[ing] recreational opportunities for the public in the shoreline” when they mandated that
Pierce County adopt its regulations. RCW 90.58.020 (emphasis added). The shoreline in
question is publicly owned.
The Nieszes argue that the SMA9 places an “as far as . . . practical” condition on what
level of obstruction or impairment must be avoided under the County’s criteria. Br. of Appellant
at 30. The Board concluded that because of the low height of the dock, beach walkers,
swimmers, and boaters would not be able to traverse the dock, which constituted an “obstruction
or impairment.” We decline to second guess the Board’s interpretation of “obstruction or
impairment” from the Code. We also find substantial evidence in the record before the Board to
support the finding that there was obstruction and impairment.
The Nieszes preferred interpretation of the criterion in question would require us to read
into the text what is not otherwise plainly said or reasonably implied. Where the plain language
9
RCW 90.58.020 provides, in part, “Permitted uses in the shorelines of the state shall be
designed and conducted in a manner to minimize, insofar as practical, any resultant damage to
the ecology and environment of the shoreline area and any interference with the public’s use of
the water.”
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No. 52658-1-II
of a statute is unambiguous, and legislative intent is therefore apparent, we will not construe the
statute otherwise. However, plain meaning may be gleaned from all that the Legislature has said
in the statute and “related statutes which disclose legislative intent about the provision in
question.” Ellensburg Cement Products, Inc. v. Kittitas Cty., 179 Wn.2d 737, 743, 317 P.3d
1037 (2014) (quoting Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 11, 43 P.3d 4(2002)). The same principles apply to interpretation of local government ordinances, like the
Pierce County Code here. City of Spokane v. Fischer, 110 Wn.2d 541, 542, 754 P.2d 1241(1988). Although we broadly construe the SMA, we only do so to protect the state shorelines as
fully as possible. Buechel, 125 Wn.2d at 203. We find no deviation from the intent of the SMA
that would compel us to overcome the deference owed to the Board here. Samson, 149 Wn.
App. at 43. We therefore hold that the Board did not err in interpreting this criterion.
The Nieszes also argue that sufficient evidence does not support the finding that marine
oriented recreation areas would be obstructed or impaired. However, Ramos conceded at the
hearing that the dock project as proposed would not satisfy the requisite DNR regulations against
obstruction or impairment of beach-going pedestrians, but that they planned to comply at a yet
specified time in the future. The Nieszes’ other witness, Stroud, also testified that the tide would
need to be out 35-feet waterward of the bulkhead for a person of 5 feet in height to cross
underneath the dock unimpeded. Watkins similarly testified that a person of 6 feet in height
would need to walk out 45 feet. We hold that substantial evidence supports the finding of
obstruction or impairment of marine oriented recreation areas.
Finally, the Nieszes now argue in their brief that compliance with that DNR regulation
requiring passage over the dock would be “a simple matter involving erection of a small four- or
26
No. 52658-1-II
five-step set of stairs.” Br. of Appellant at 32. That the Nieszes may one day in the future
comply with DNR regulations has no bearing on the Board’s determination for this criterion, and
the Nieszes offer no compelling argument otherwise. The Nieszes’ offer to provide for
additional conditions on the permit did not alter the duty of the Board to rule on the specific
permit before it, which did not contain such conditions. Hayes v Yount, 87 Wn.2d 280, 291, 552
P.2d 1038 (1976). We decline to interfere with the sound discretion of the Board in determining
what constitutes a sufficient degree of “obstruction or impairment” under this criterion.
Testimony at the hearing showed that the public’s ability to use the beach and the water
would be obstructed by the dock. We hold that the Board did not err in ruling that marine
oriented recreation areas will be obstructed or impaired by the proposed dock, because the
Board’s interpretation of “obstruction” and “impairment” was not clearly erroneous, and the
finding made by the Board that amounted to a sufficient degree of “obstruction or impairment”
was supported by substantial evidence.
2. Ingress-Egress as well as the use and enjoyment of the water or beach on adjoining
property is unduly restricted or impaired
The Nieszes argue that the Board erred in ruling that there would be undue restriction and
impairment as to the use of the beach on adjoining properties. The Nieszes assign error to both
the findings of fact and conclusions of law related to this criterion. The Nieszes argue that the
Board’s interpretation of the criteria was clearly erroneous, and that the findings of fact
supporting its legal conclusion was not supported by substantial evidence. We disagree.
First, the Nieszes contend that the Board erred in interpreting the code by “finding
language not set forth in the governing ordinance and misapplying it beyond the immediately
adjacent properties.” Br. of Appellant at 29. The Nieszes argue that because “[n]o witness
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No. 52658-1-II
testified that the dock would prevent the opposing neighbors from using their own beaches or
launching any watercraft from their properties, that substantial evidence does not support the
finding. Br. of Appellant at 29. The Nieszes seem to argue that this criterion is meant only to
protect the boundary of adjoining properties insofar as they touch the shoreline. PCC
20.56.040(A)(3) provides that “Ingress-Egress as well as the use and enjoyment of the water or
beach on adjoining property is not unduly restricted or impaired.” The Board interpreted the
Code to mean that since “the distance between the bottom of the pier and the beach will prevent
the adjoining property owners from walking along the beach at many tides,” this was sufficient
to be deemed “undue restriction or impairment.” CP at 49. This interpretation is not clearly
erroneous.
The Nieszes proposed interpretation of “undue restriction or impairment” would
necessarily only apply insofar as a neighbor cannot cross the boundary of their adjoining
property onto the beach or water, and would render the first element of this two-part conjunctive
criterion (“Ingress-Egress as well as . . .”) to be superfluous. The Nieszes’ interpretation offends
the well-established surplusage canon of statutory construction, which holds that “[the court]
must interpret a statute so as to render no portion meaningless or superfluous.” State v Dennis
III, 191 Wn.2d 169, 173, 421 P.3d 944 (2018) (internal quotation marks omitted). We decline to
interfere with the Board’s due deference in interpreting this language because there is no
compelling reason to do so. We hold that there was no clear error in how the Board interpreted
“undue restriction or impairment” from this criterion.
As discussed above for criteria one, the Board reasoned that the dock would obstruct the
use and enjoyment of the beach because the dock would obstruct beach walkers, swimmers and
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No. 52658-1-II
the use of small water craft. The same evidence sufficient to substantiate the finding that the
public would be unable to walk and enjoy the beach and water crossed by the proposed pier and
dock applies equally to the finding that the neighbors also would suffer the same consequence.
West testified that the nearby residents walk along the beach at the proposed site in the same
manner that the public does. The Board therefore did not err in finding that there would be
undue restriction or impairment because such finding was supported by substantial evidence.
The legal conclusion that the neighbors would face undue restriction and impairment as to the
use and enjoyment of the beach directly adjacent to their properties falls squarely within the
language of the Code. The Nieszes have failed to carry their burden to show the Board erred in
this conclusion. Therefore, we hold that the Board did not err in ruling that there would be
undue restriction and impairment as to the use of the beach on adjoining properties.
3. A reasonable alternative such as joint use, commercial or public moorage facilities
does exist or is likely to exist in the near future
The Nieszes argue that the Board erred in ruling that reasonable alternatives exist. We
disagree.
The Nieszes challenge the conclusion that the existing mooring buoy is a reasonable
alternative. The Nieszes also challenge the findings of fact that (1) the character of the beach
makes loading and unloading boats reasonably manageable, and (2) the dock would not
significantly extend the boating season. These arguments fail.
West testified that he uses the same buoy and dinghy method that the Nieszes use to
retrieve and use his boat. He testified that there were no limitations from mooring his boat on
the buoy. West also testified that there had been no recorded drownings or injuries from anyone
of the numerous residents and their young children on the island using this method.
29
No. 52658-1-II
Reetz testified that her family used the buoy and dinghy method consistent with the
Nieszes’ to retrieve and use their boat. Reetz further testified that neither she nor her children
ever had any difficulties boarding the boat in this manner.
Watkins explained that the residents on the south side of the island stored their boats
during the winter because the south side of the island experienced frequent and severe winter
storms with “50-knot winds” and “waves [that] get extremely high.” CP at 402. He further
testified that “[he was] not aware of anybody that really goes out in a boat in the wintertime . . .
the Nieszes do not use their boat other than unusually, infrequent times . . . they would never do
that during the winter . . . they would not dare leave their boat tied up in the float on the pier.”
CP at 402-03. Reetz also testified that he did not boat in the winter and stored his boat at a
public marina because of rough weather.
The testimony received by the Board at the hearing was sufficient to find that loading and
unloading boats via the buoy and dinghy method was manageable, and that the proposed dock
would not extend the boating season. Part F of the SMP pier policy implores the County to
develop use regulations that “[e]ncourage the use of mooring buoys as an alternative to space-
consuming piers such as those in front of single-family residences.” Br. of Appellant (App. 3, at
2 (Shoreline Master Program)). The Board’s legal conclusion is in keeping with this policy. The
Board’s legal conclusion regarding the reasonableness of a buoy as an alternative was not
erroneous, capricious, or arbitrary.
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No. 52658-1-II
4. The intensity of the use or uses of any proposed dock, pier, and/or float shall be
compatible with the surrounding environment and land and water uses
The Nieszes argue that the Board erred in concluding that the intensity of use of the
proposed project would not be compatible with the surrounding environment and land and water
uses. We disagree.
The Nieszes argue specifically that “intensity” from the criteria in question and “existing
pier density” from Part E of the SMP pier policy are both meant only to prevent overcrowding.
Br. of Appellant at 28. The Nieszes argue that the Board is effectively implementing a de facto
ban any new dock in an area with no or very few docks present if it reads the criteria another
way. The Nieszes point to May v. Robertson, 153 Wn. App. 57, 87, 218 P. 3d 211 (2009) to
support the proposition that an agency cannot consider if a dock is the first of its kind on a
shoreline when evaluating an SSDP application. The Nieszes also assert, without authority, that
the Board cannot consider the SMP pier policy because the specific regulations of PCC
20.56.040 control over the general policies. These arguments fail.
The Board found that the existing pier density for this stretch of public tidal lands in
question was zero. The Board concluded that the proposed single-use pier (and its intensity of
use) would be inconsistent with the current surrounding environment and land and water uses.
At the same time, the Board says that “the absence of docks is not determinative of the decision
on whether the intensity of use is compatible or whether a dock would be inconsistent with
existing pier density.” CP at 52. The Board resolves this apparent conflict in its logic:
In light of the specific impacts of the dock proposed by the Nieszes and the
County’s policy of discouraging single-use docks, the Board concludes that the
intensity of use concerning the proposed dock is not compatible with the
surrounding land and water uses and the proposed dock is not consistent with
existing pier density. The Board is not ruling that all docks are prohibited along
31
No. 52658-1-II
the southwest side of Fox Island. Although the proposed dock would not be
compatible with the land and water uses in the area or the existing pier density,
other docks may not have the impacts of the proposed dock or the reasonable
alternative of the proposed dock.
CP at 53.
By its reasoning, the Board leaves open the possibility that other proposed docks could
have passed this criterion. The Board found that the proposed dock had incompatible intensity
because of how much public use of the land and water the proposed project would impede and
obstruct versus how much public land and water use the Nieszes’ project would keep exclusively
for the Nieszes. That monopolization of so much public use of land and water is the character of
intensity that stands in stark contrast to the pristine and open existing land and water available to
the public that would otherwise be unrestricted and impeded. The fact that there are no other
docks in the area does amplify this contrast, but the restrictive and impeding nature of the
proposed dock is ultimately what is dispositive here, based on the reasoning of the Board. The
Board did not outright ban any new dock on this stretch of beach, but it did consider this
particular proposed dock to be incompatible compared to the existing public use. The Board’s
reasoning suggests that had the Nieszes designed a less restrictive and less obstructive dock, or
perhaps had that dock been joint-use, then perhaps the outcome may have been different for this
criterion.
The Nieszes point to May v. Robertson, 153 Wn. App. 57, as their primary authority for
why their permit cannot be denied on the ground that it is the first dock in the area. In May v.
Robertson, we reversed the Board’s decision to deny a permit for a joint-use pier to be
constructed in a rural residential environment shoreline. 153 Wn. App. at 93. We reasoned in
part that a denial merely because the permit was for the “first [pier] within [that] sandy crescent”
32
No. 52658-1-II
was not proper. May, 153 Wn. App. at 88 (first alteration in original). We held that substantial
evidence failed to support the Board’s conclusion that the joint-use pier would be incompatible
with the surrounding land and water used because “the joint-use pier is consistent with and
advances this shoreline environment’s planned uses.” May, 153 Wn. App. at 87. But the facts of
May are distinguishable from the instant case. Here, the Board correctly found that the Nieszes’
single-use pier would be inconsistent with and would not advance the conservancy environment
shorelines planned uses when the Board found that the pier would obstruct and impair public
access to the beach.10 A rural residential environment shoreline is more permissive of intensity
of use than a conservancy environment, which guides that “areas should maintain their existing
character,” since they are “designed to protect, conserve, and manage existing natural resources .
. . in order to ensure a continuous flow of recreational benefits to the public . . . .” PCC
20.14.010, .020(A) (emphasis added).
We hold that the Board did not err in concluding that the intensity of the use or uses of
the Nieszes’ proposed project was incompatible with the surrounding environment and land and
water uses.
C. Cumulative Impacts
The Nieszes argue that no facts or law support the Board’s cumulative impacts ruling.
We disagree.
The Board conducted a cumulative impacts assessment under Garrison v. Pierce County
(De Tienne), No. 13-016c, (Wash. Shorelines Hr’gs Bd. Jan. 22, 2014), aff’d, De Tienne, 197
10
“Outdoor recreation activities” are a “preferred use” of aconservancy environment. PCC
20.14.030.
33
No. 52658-1-II
Wn. App. 248 (2016). The Board used the following factors from Garrison, SHB 13-016 at 54-
55:
1. Whether a shoreline of statewide significance is involved;
2. Whether there is potential harm to habitat, loss of community use, or a
significant degradation of views and aesthetic values;
3. Whether a project would be a “first of its kind” in the area;
4. Whether there is some indication of additional applications for similar
activities in the area;
5. Whether the local SMP requires a cumulative impacts analysis be completed
prior to approval of an SSDP;
6. The type of use being proposed, and whether it is a favored or disfavored use.
CP at 21-22.
The Board concluded that the proposed single-use dock is discouraged under the SMP
Piers Policies. This conclusion is based on the text from the SMP Use Activity Polices for Piers,
Part D, which reads that “[p]iers associated with single family residences should be
discouraged.” CP at 812. The Board also found that the 150-foot proposed dock would be a first
of its kind on the southwest side of Fox Island. This finding is supported by the testimony of
Ramos who testified as much. The Board found that allowing the proposed dock would set a
precedent for allowing other similar docks in the area. Halsan testified that a proliferation of
docks had already occurred at the Bella Bella site, and Carlson testified that the examiner
partially based their approval of dock permits at the Bella Bella site on there already being docks
constructed at the site. The Board found that a proliferation of docks would lead to a degradation
of aesthetic values on the beach. Reetz testified that the other side of the island where there were
numerous docks and piers had an unpleasant quality. The Board could have reasonably inferred
the same to the southwest side of the island where the Nieszes sought their project.
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No. 52658-1-II
Finally, the Board found that there would be significant community loss of use because
beach walkers would be obstructed and marine recreation would be affected. The Nieszes argue
that the Board erred in not presuming that the Nieszes will comply with applicable DNR
standards in the future, which require accommodation of beach walking, and in doing so the
Board “impermissibly shift[ed] the burden of proof as to alleged cumulative impacts.” Br. of
Appellant at 7. Again, the Nieszes’ offer to provide for additional conditions on the permit did
not alter the duty of the Board to rule on the specific permit before it, which did not contain such
conditions. Hayes v. Young, 87 Wash.2d 280, 291, 552 P.2d 1038 (1976). For the reasons
above, these findings are substantiated by sufficient evidence in the record.
We hold that the board did not err when concluding that there would be cumulative
impacts from the project.
D. Not Arbitrary or Capricious
The Nieszes challenge the ultimate issue in this case, that the Board erred in denying its
request for a SSPD. The Nieszes must show that the Board decided this case with “willful and
unreasoning action in disregard of facts and circumstances,” in order to compel us to overturn the
Board’s decision for being arbitrary or capricious. Buechel, 125 Wn. 2d at 202. We hold that
the Nieszes have failed to show that the Board’s decision was anything but honest and made with
due consideration, even if a different conclusion could have been reached. Buechel, 125 Wn.2d
at 202. Because the Board made its findings and conclusions in a well-reasoned manner and
with due regard of the facts and circumstances, we hold that the Board did not err when denying
the Nieszes’ request for a SSPD.
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IV. CONSTITUTIONALITY
The Nieszes appear to argue that the Board’s rulings violated their constitutional rights.
Specifically, they assert a limited “as applied” constitutional challenge to the statutes and
regulations relied on by the Board, arguing that use of “their” shoreline property is a
“fundamental right.” Br. of Appellant at 41-2. We disagree.
First, we address whether the Nieszes have any “fundamental right” to the public
shoreline, and we hold that they do not. The Takings Clause provides that private property shall
not be taken for public use, without just compensation. U.S. CONST. amend. V. This clause
applies to the taking of a landowner’s riparian rights as well as to the taking of an estate in land.
Stop the Beach Renourishment, Inc. v. Florida Dep’t. of Envtl. Prot., 560 U.S. 702, 713, 130 S.
Ct. 2592, 177 L. Ed. 2d 184 (2010). However, “[i]n Washington, abutting landowners have no
riparian rights in state-owned tidelands and shorelands.” Caminiti v. Boyle, 107 Wn.2d 662, 673,
732 P.2d 989 (1987). “To hold otherwise would be to deny the power of the state to deal with its
own property as it may deem best for the public good.” Eisenbach v. Hatfield, 2 Wash. 236, 253,
26 P. 539 (1891). Moreover, the Washington Constitution explicitly provides,
The state of Washington asserts its ownership to the beds and shores of all
navigable waters in the state up to and including the line of ordinary high tide, in
waters where the tide ebbs and flows, and up to and including the line of ordinary
high water within the banks of all navigable rivers and lakes: Provided, That this
section shall not be construed so as to debar any person from asserting his claim to
vested rights in the courts of the state.
WA. CONST. art. XVII, § 1.
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The State, through its legislature, has created a statutory scheme (the SMA) that may give
abutting landowners the license to use the State’s tidelands and shorelands, but the State likewise
can revoke that license by repealing the statute in the event it sees fit to do so. Caminiti, 107
Wn.2d at 673. The Nieszes argue, without citation to authority, that “use of their shoreline
property is properly understood not as a privilege, to be allowed solely as Pierce County sees fit,
but rather is based on a fundamental right.” Br. of Appellant at 42. This argument fails because
the Nieszes do not have fundamental rights to the public shoreline, which is the property of the
State. WA. CONST. art. XVII, § 1. Construction of a private recreational dock on public
shoreline is properly understood as a privilege that may only be granted to applicants who meet
the regulatory requirements set forth by the SMA. We hold that the Nieszes’ claim of a
“fundamental right” to build a dock on public shoreline is without merit.
The Nieszes next apparently argue that they have a vested property interest by virtue of their
application for a permit. We disagree.
A property interest arises for a permit applicant when there are articulable standards that
constrain the decision-making process and those standards substantially limit the discretion of
the decision-maker. Durland v. San Juan County, 182 Wn.2d 55, 71, 340 P.3d 191 (2014).
Courts have found that a property interest exists when an applicant is entitled to a permit or
variance having met certain criteria. See Foss v. Nat’l Marine Fisheries Serv., 161 F.3d 584,
588 (9th Cir.1998) (holding that “specific, mandatory” and “carefully circumscribed”
requirements constrained discretion enough to give rise to property interest). Conversely, “a
statute that grants the reviewing body unfettered discretion to approve or deny an application
does not create a property right.” Thornton v. City of St. Helens, 425 F.3d 1158, 1164 (9th Cir.
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2005). A requested permit constitutes a constitutionally protected property interest “if discretion
[to deny the final issuance of the permit] is substantially limited.” Durland, 182 Wn.2d at 71;
Wedges/Ledges of Cal., Inc. v. City of Phoenix, 24 F.3d 56, 62 (9th Cir. 1994).
Here, the Nieszes argue that because their “proposal does not have any discernable
environmental impacts to the aquatic habitat or species that rely upon it and is deemed a
reasonable use,” that the Board’s discretion is limited in the face of private property rights. Br.
of Appellant at 42. This argument fails.
We determine whether the applicable provisions controlling the grant of a permit are
couched in mandatory language giving rise to a legitimate claim of entitlement. Durland, 182
Wn.2d at 73. The Nieszes cite Maytown Sand and Gravel, LLC v. Thurston County, 191 Wn. 2d
392, 432 P.3d 223 (2018), for the proposition that they have a cognizable property interest in the
publicly owned tidelands near their property because of their status as permit applicants. In
Maytown, a mining company purchased land from the government with the express assurance
that a permit to start a mining operation was valid and with the government’s implicit approval to
start mining. 191 Wn.2d. at 399. In that case, even though the company held an actual permit,
our Supreme Court held that “because the permit contained expired premining conditions that
had not been satisfied by those deadlines, the permit by itself was not enough to prove a
constitutionally protected interest to the mine.” 191 Wn.2d at 431. Our Supreme Court in
Maytown recognized a cognizable property right for that applicant only because in addition to the
permit it held, it had also received numerous letters from the agency conveying that all
permitting requirements had been met. 191 Wn.2d at 432. When viewed in the light most
favorable to Maytown, our Supreme Court held that “those letters . . . constitute[d] sufficient
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evidence that Maytown had a protected property right to mine as of [the date] when the
Department determined that all premining conditions had been satisfied.” Maytown, 191 Wn.2d
at 432. Our Supreme Court reasoned that once the agency had conveyed to the applicant that
their permit was all but approved, when “the Department determined that all [permitting]
conditions had been satisfied[,]” that only then had a property interest in the proposed mine
vested because the decision making process was thereby constrained and discretion substantially
limited, even though the permit was not yet formally approved. 191 Wn.2d at 432.
Here, the record is devoid of evidence that the Nieszes obtained any assurances for
permitting from the Board or any other agencies connected to the approval of their SSDP under
the SMA or local regulations. Unlike Maytown, the Nieszes do not own the land, and they also
never received any permit. Indeed, the Nieszes were denied at each stage of the process, and the
record is replete with findings and conclusions of various agencies and review bodies showing
that the Nieszes had not satisfied the requirements for permitting. Therefore, under Maytown, it
cannot be said that the Nieszes had a cognizable, vested property interest in the public tidal lands
where they sought to build their private single-use dock. 191 Wn.2d at 431. We hold that the
Nieszes’ constitutional challenge to the Board’s denial of their SSDP application on the grounds
that they had a vested property interest vis-à-vis their permit application is without merit.
IV. REQUEST FOR ATTORNEY’S FEES
The Nieszes, the Reetzes, and the Wests, all request attorney fees. Because the Reetzes
and the Wests are the prevailing parties in this appeal, we award reasonable attorney’s fees and
costs to them. RCW 4.84.370.
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The Nieszes argue that they are entitled to attorney fees under the RCW 4.84.340, 350.
That statute provides authority for petitioners to recover attorney fees from a state agency for
successful court challenges of the agency action. However, the statute does not provide a basis
for fees when the agency is simply acting as an adjudicative agency and is but a nominal party on
review. RCW 4.84.350. More importantly, the Nieszes are neither the prevailing party, nor have
they successfully challenged any agency action. Thus, the Nieszes are not entitled to attorney
fees on appeal.
RCW 4.84.370 provides that if a party prevails or substantially prevails on appeal to the
Court of Appeals, and also prevails before the Board and before the superior court, that that party
is entitled to recover reasonable attorney’s fees and costs incurred on appeal. Here, the Reetzes
and the Wests are the prevailing party on appeal. Thus, they are entitled to reasonable attorney
fees.
V. CONCLUSION
In conclusion, we hold that substantial evidence supports the Board’s findings, and that
the Board did not err in making its conclusions. We further hold that the Board’s decision to
affirm the county’s denial of the Nieszes’ permit request was not arbitrary or capricious. Finally,
we hold that the Board decision denying the development project was not unconstitutional.
We deny the appellants request for attorney’s fees and costs, and award attorney’s fees
and costs to the respondents.
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We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
________________________________
Worswick, J.
__________________________________
Melnick, J.
__________________________________
Sutton, A.C.J.
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