Cary and Cathleen Schenk v. Douglas County

• Court: Court of Appeals of Washington
• Decided: August 7, 2014
• Docket: 31749-8
• Status: Unpublished

Opinion

FILED

AUGUST 7, 2014

In the Office of the Clerk of Court

W A State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

CARY and CATHLEEN SCHENCK, ) No. 31749-8-111 Husband and wife, ) ) Appellants, ) ) v. ) ) UNPUBLISHED OPINION DOUGLAS COUNTY, a subdivision of the ) State of Washington, ) ) Respondent. )

BROWN, A.C.J. -In 1999, Cary and Cathleen Schenck purchased property in

Douglas County on the Columbia River shoreline to build a home. In that same year,

they applied for and received a permit from Douglas County (County) to install a dock.

Between 2000 and 2005, the Schencks installed a new dock, boat lift, and concrete wall

and fence. In 2012, Douglas County issued a Notice of Land Use Violations and Order

to Comply (NOV) for construction of the above items without a permit or exemption.

The Schencks appealed the NOV and a public hearing was held before the Douglas

County Hearing Examiner. The hearing examiner affirmed the NOV and the Schencks

filed a Land Use Petition Act (LUPA) petition seeking judicial review. The trial court

dismissed the LUPA petition. The Schencks appeal. contending the proceeding was No. 31749-8-111 Schenck v. Doug/as County

barred by the statute of limitations, the hearing examiner misallocated the burden of

proof, and the hearing examiner's decision that the Schencks were not exempt from the

permit requirements was an erroneous interpretation of the law and not supported by

I substantial evidence. We reject the Schencks' contentions, and affirm.

I FACTS

I n In 1999, the Schencks purchased property along the Columbia River in Douglas

County. Wanting to install a dock and boat lift, the Schencks contacted the County to

inquire about the procedure. On October 4, 1999, they submitted a dock permit

application to the County. The proposed dock would have two steel/concrete pilings

I and be tied to the shore by a proposed concrete pad. The value of the project was

$7,000.

At the same time, the Schencks hired a consultant team to help them submit a

Joint Aquatic Resource Permits Application (JARPA) form. This form is a general form

used to apply for permits from the United States Army Corps of Engineers (Corps), the

Washington Department of Ecology (DOE), and the Washington Department of Fish &

I ~ Wildlife (DFW). The front page is stamped as received on October 4, 1999 by Douglas

County Department of Transportation and Land Services (TLS). The JARPA describes

I the proposed dock as a "ramp and floating wood dock finished with TREX decking."

I Clerk's Papers (CP) at 423. The JARPA also states the dock will be secured in the

water with two steel pilings sleeved with 8-foot white PVC. The dock would be secured

with a concrete pad attachment block. The Schencks did not include information about

2 No. 31749-8-111 Schenck v. Doug/as County

a boat lift. A transmittal letter from DFW to the Schencks warned that the Schencks

were responsible to see that "all provisions within this HPA permit are strictly followed at

all times." CP at 435.

In late 1999, Douglas County determined the Schencks' proposed dock was

exempt from the Shoreline Management Act (SMA) permit requirement under WAC

173-27-040 (2)(h)(ii), which exempts permit requirements for private, freshwater docks

costing less than $10,000. Douglas County then issued a building permit for the dock

and ramp system. Soon after, the DFW issued a Hydraulic Project Approval (HPA).

In February 2000, the Schencks began installing their dock. They soon learned,

however, that the cost of the dock had gone up and was over the $10,000 maximum for

the exemption. They claim they contacted Bob Steele with the DFW and he advised

they change to an EZ Dock system, which is cheaper. The Schencks then installed an

EZ Dock. Ms. Schenk claims she called the County to inspect the new dock, but Joe

Williams, a county senior planner, said that since an EZ Dock was installed (rather than

built) and since Mr. Steele approved the changes, there was nothing to inspect. Mr.

Williams denies this conversation. The Schencks did not obtain county inspections and

the building permit expired. The Schencks did not obtain an SMA substantial

development permit or exemption for the new dock from the County, a new HPA from

DFW, or a federal permit from the Corps.

In May 2000, the Schencks installed a boat lift. They again claim the County told

them a permit was not required. Again, Mr. Williams denies this.

No. 31749-8-111 . Schenck v. Doug/as County

The Corps wrote directly to the Schencks on November 24,2000, to inform the

Schencks their permit application was stale, incomplete and had been cancelled. This

correspondence included the statement, "Do not proceed with the work until you have

received a permit from the Corps." CP at 521.

Between 2003 and 2005, the Schencks constructed a concrete wall with an

attached fence. The Schencks built the wall and fence themselves for a total cost,

including their own labor of approximately $1,000. The wall and fence are

approximately 40 feet long and between 2 and 3 feet high. And, by the Schencks'

estimate, it is 27 feet from the river's ordinary high water mark (OHWM), sometimes

referred to in the record as the ordinary high water level (OHWL). No permit was

obtained for constructing the wall and fence. 1

On July 3,2012, the County issued a NOV relating to unauthorized Columbia

River shoreline development by the Schencks. The Schencks appealed to the County

hearing examiner. The hearing examiner affirmed the NOV after entering findings of

fact and conclusions of law. The Schencks filed a LUPA petition in superior court,

challenging the hearing examiner's decision. The court affirmed the hearing examiner

and dismissed the petition. The Schencks appealed to this court.

1 Other structures were also installed or brought in, including a jet ski dock, concrete pad with bench, and sand, but they are not the subject of this appeal.

I I 1 ! No. 31749-8-111 Schenck v. Douglas County j ANALYSIS

A. Statute of Limitations

Preliminarily, the Schencks contend the County's NOV was barred by the statute

of limitations. They argue the NOV is essentially a civil penalty and a misdemeanor that

carry a two-year statute of limitations and a one-year statute of limitations, respectively.

This case, however, does not involve civil penalties or criminal liability as contemplated

by the time limitations of RCW 4.16.100(2) (two-year statute of limitations to pursue civil

penalties) and RCW 9A.04.080(1)0) (one-year statute of limitations for misdemeanors);

rather, this case involves the validity of a NOV issued by the County. And, the

Schencks do not point to a statute of limitations applicable to the issuing of an NOV.

Accordingly. these proceedings are not barred by the statute of limitations.

B. Burden of Proof

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

thereby justifying relief under LUPA. The Schencks argue the examiner wrongly placed

the burden on them to demonstrate the improvements complied with the SMA.

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

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

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

appellant, in this case, the Schencks.

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

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

No. 31749-8-111 Schenck v. Doug/as County

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

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

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

Compare Post v. City of Tacoma, 167 Wn.2d 300, 217 P.3d 1179 (2009), where

the city had the burden of proof before the hearing examiner. There, however, the issue

was $500,000 in infraction penalties administratively imposed by the city under its

building code. The penalties were imposed without any opportunity for administrative

challenge or review, and were struck down by the Supreme Court as violating due

process. Here, the Schencks exercised their right to administratively challenge the

NOV and no infractions were issued or penalties imposed. The Schencks will be

subject to enforcement after their failure to comply with the NOV. Thus, the Post case

is distinguishable on its procedure and facts.

The Schencks cite WAC 461-08-500(3), providing, "Persons requesting review

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

issuing agency shall have the initial burden of proof in cases involving penalties or

regulatory orders." This section, however, applies to proceedings before the SHB,

which reviews cases de novo. And, the term "agency" used in WAC 461-08-305(1) is

defined as "any state governmental entity." A county falls within the defined term "local

government." WAC 461-08-305(7). Therefore, the burden of proof proviSion in WAC

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

No. 31749-8-111 Schenck v. Douglas County

Accordingly, under RCW 90.58.140(7) and WAC 173-27-040(1)(c), the burden of

proof is on the Schencks to demonstrate they did not develop within the shoreline, or

they obtained all necessary permits, exemption determinations, and other approvals.

C. Exemptions

The issue is whether the hearing examiner erred in concluding the Schencks

failed to meet their burden in challenging the NOV. Specifically, the Schencks contend

the dock, boat lift, and concrete wall and fence did not violate any codes or statutes.

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

v. Pierce County ex rei. Dep'tofPlanning & Land Servs., 148 Wn.2d 451, 467,61 P.3d

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

burden in establishing one of six standards of relief:

(a) The body or officer that made the land use decision engaged in unlawful procedure or failed to follow a prescribed process, unless the error was harmless; (b) The land use decision is an erroneous interpretation of the law, after allowing for such deference as is due the construction of a law by a local jurisdiction with expertise; (c) The land use decision is not supported by evidence that is substantial when viewed in light of the whole record before the court; (d) The land use decision is a clearly erroneous application of the law to the facts; (e) The land use decision is outside the authority or jurisdiction of the body or officer making the decision; or (f) The land use decision violates the constitutional rights of the party seeking relief.

RCW 36.70C.130(1). Standards (a), (b), (e) and (f) present questions of law we review

de novo, but under (b) we defer to the hearing examiner's construction of local land use

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

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

Standard (c) involves factual determinations this court reviews for supporting substantial

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

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

finding authority. Id.

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

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

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

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

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

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

(1993)).

The Schencks argue the land use decision was an erroneous interpretation of the

law and not supported by substantial evidence (RCW 36.70C.130(1)(b) and (c». They

point to the dock, boat lift, and concrete wall.

First, regarding the dock, in 1999, the Schencks obtained an exemption to install

a dock. The exemption, however, stated, "Any changes should be reviewed by this

department to ensure continued compliance with goals, policies and requirements of the

shoreline management act and master program, and that the exemption is still valid.

I

i l I1 , :{ ! No. 31749-8-111 I Schenck v. Douglas County j

1 The applicant is responsible for obtaining and complying with all federal, state and local

permits required." CP at 495. Further, the DFW warned the Schencks they were

responsible to see that "all provisions within this HPA permit are strictly followed at all

times." CP at 435. Paragraph 6 of the HPA sets forth the specifics of the dock

including the size, ramp, pilings, and anchors. Additionally, "Any modifications to this

project or future work within, below or over the OHWL will require a separate HPA from

the Washington Department of Fish and Wildlife." CP at 369. Further still, the Corps

application acknowledgement stated, "Since a Department of the Army permit is

necessary for this work, do not commence construction before the permit has been

issued." CP at 524.

The Schencks installed a different dock and related structures than the one

proposed during the application process. The new dock did not conform to the

exemption issued by the County and the HPA issued by the DFW. The Schencks knew

they had not obtained a required federal permit from the Corps. While the Schencks

allege the County and DFW had full knowledge of their changed plans and the County

allegedly gave oral approval, the County denied this and the hearing officer decided

credibility for the County. We consider all of the evidence and reasonable inferences in

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

fact-finding authority. Cingular Wireless, 131 Wn. App. at 768.

Given all, we conclude substantial evidence supports the County's NOV. The

Schencks have failed to meet their burden of proof under RCW 36.70C.130(1)(b) and

(c). The hearing examiner did not err.

Second, the Schencks argue the boat lift did not warrant an NOV because they

were orally told a permit was not necessary. Again, the County refutes this. Mr.

Williams, a county senior planner, denies this and states that it has never been the

policy to orally grant exemptions. Again, the hearing officer found credibility for the

County.

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

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

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

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

exist to the permit requirement. The exemption is granted after application. No

application exists for the boat lift. Indeed, Mr. Williams declared that boat lifts required a

permit or an exemption determination in 1999-2001 and U[i]f a lift was to be added as

part of pending dock construction, the dock exemption/permit plans on file with the

County would need to be revised." CP at 492. They were not. Accordingly, substantial

evidence supports the County's NOV.

Third, the Schencks argue the concrete retaining wall and fence were exempt

from the SMA because it was landward and the cost was minimal. The SMA requires

developers to obtain a substantial development permit before building a structure.

RCW 90,58.140(2). However, an exemption may be allowed under WAC 173-27­

040(2)(g) for "[c]onstruction on shorelands by an owner ... of a single-family residence

for their own use or for the use of their family" or under former RCW 90.58.030(3)(e)

(1996), which exempts any development of which the total cost or fair market value is

below "two thousand five hundred dollars." Former RCW 90.58.030(3)(e) (1996). The

County concedes the wall and fence were landward of the OHWM. Resp't Br. at 45,

n.14. However, exemptions under the SMA are not self-executing. WAC 173-27­

040(1)(a). WAC 173-27-040(2) does not eliminate the requirement to apply for and

obtain an exemption from the County.

The Schencks would need to establish that the wall and fence cost less than I $2,500 and was a "normal appurtenance" to a single-family residence. See WAC 173­

27-040(2)(g) ('''Single-family residence' ... [includes] structures ... which are a normal

appurtenance.") Because the Schencks did not apply for any exemption under the

SMA, the County was denied an opportunity to review their plans, determine whether

"fair market value" and/or "normal appurtenance" was a basis for issuing an exemption,

or to provide for shoreline mitigation required by the development. As stated in the

NOV, the Schencks will be required to submit the appropriate paperwork for a permit or

exemption. Accordingly, the NOV was justified.

Given all, the Schencks have failed to meet their burden of proof under RCW

36.70C.130(1)(b) and (c). The hearing examiner did not err in concluding likewise.

And, the trial court correctly dismissed the Schencks' LUPA petition.

D. Attorney Fees

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

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

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

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

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

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

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

Thus, the County's request is denied.

Affirmed.

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

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

2.06.040.

Brown, A.C.J.

WE CONCUR:

,~s. Lawrence-Berrey, J.