Department of Ecology v. City of Kirkland

523 P.2d 1181, 84 Wash. 2d 25, 1974 Wash. LEXIS 707
CourtWashington Supreme Court
DecidedJuly 3, 1974
Docket42821
StatusPublished
Cited by31 cases

This text of 523 P.2d 1181 (Department of Ecology v. City of Kirkland) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Department of Ecology v. City of Kirkland, 523 P.2d 1181, 84 Wash. 2d 25, 1974 Wash. LEXIS 707 (Wash. 1974).

Opinions

Hamilton, J.

— On November 1, 1971, the City of Kirkland issued a substantial development permit authorizing construction of an all-weather moorage facility on Lake Washington by the Bittman, Sanders, Hasson Corporation. Since this proposed moorage facility would allegedly result in a substantial increase in the lake’s surface area being covered by structures as compared to the existing situation, the Department of Ecology and the Attorney General sought review of this matter by the Shorelines Hearings Board pursuant to RCW 90.58.180. RCW 90.58.180 directs that review proceedings by the board are subject to the provisions of RCW 34.04 (the administrative procedure act) pertaining to procedures in contested cases.

[27]*27After a review of the record made before the board, three of the board members voted to uphold the permit and three voted to modify the permit. On August 15, 1971, the chairman of the board issued a statement declaring that the board was unable to render any decision or to enter any orders since four members could not concur under RCW 90.58.170:

A shorelines hearings board sitting as a quasi judicial body is hereby established which shall be made up of six members . . . The chairman of the pollution control hearings board shall be the chairman of the shorelines hearings board. A decision must be agreed to by at least four members of the board to be final. The pollution control hearings board shall provide the shorelines appeals board such administrative and clerical assistance as the latter may require. The members of the shorelines appeals board shall receive the compensation, travel, and subsistence expenses as provided [by statute].

(Italics ours.)

The Department of Ecology and the Attorney General filed a petition in the Superior Court for Thurston County, seeking review of the “decision” of the board embodied in the chairman’s statement. Proceedings before the Shorelines Hearings Board are made subject to the administrative procedure act, and RCW 34.04.130 (l)1 provides that “final” decisions in contested cases may be judicially reviewed in the superior courts of this state. The trial court, on its own motion, reasoned that, since no final order had been entered pursuant to RCW 90.58.170, it had no jurisdiction under either the administrative procedure act or otherwise to review the board’s action. The court then indicated [28]*28an intention to remand the matter to the board for reconsideration with the proviso that if the board should still be equally divided, the court would dismiss the petition for failure of the petitioners to sustain their burden of proof to the satisfaction of a majority of the board.

The Department of Ecology and the Attorney General applied to the Court of Appeals for a writ of mandamus directing the Superior Court to alternatively: (1) take jurisdiction and review the board’s action; or (2) take jurisdiction and conduct a de novo review; or (3) remand back to the board for further consideration without limiting the petitioners’ right to seek review of any subsequent board action.

On March 27, 1973, the Court of Appeals, Division Two, unanimously granted the writ of mandamus, directing the trial court to assume jurisdiction of the cause and to review the proceedings pursuant to RCW 34.04.130(5) and (6).2 Department of Ecology v. Kirkland, 8 Wn. App. 576, 508 P.2d 1030 (1973). In so doing, the court held: (1) the statement issued by the chairman of the board constitutes a “final action” by the board since by operation of law the action of the City in granting the permit stands affirmed; (2) due to the lack of any findings, conclusions or affirma[29]*29tive orders, signed by four members of the board, the trial court must review the record unaided by any specific findings; and (3) even in the absence of such findings, conclusions, or affirmative orders, which cannot be corrected by a remand to the administrative agency, the trial court can and must conduct a limited factual review, as required by RCW 34.04.130(6) (e) in order to ascertain whether or not it is left with the “ ‘definite and firm conviction that a mistake has been committed [by the administrative agency].’ ” Ancheta v. Daly, 77 Wn.2d 255, 259-60, 461 P.2d 531 (1969).

This case initially raises the following question: Where an administrative agency, made up of an even number of members, divides in its vote equally on a contested matter, is the action thereby taken a “final action or order” under the Washington administrative procedure act? This query brings into application the overlapping doctrines of the final order rule, exhaustion of administrative remedies and ripeness for review, which all deal with the problem of whether a petitioner seeking judicial review has prematurely resorted to the courts. What is sometimes called the “final order doctrine” prevents review of an order which is not final under a statutory provision for review of an “order.” Federal Power Comm’n v. Metropolitan Edison Co., 304 U.S. 375, 82 L. Ed. 1408, 58 S. Ct. 963 (1938).

Since there are no Washington cases discussing what is meant by a “final decision” under RCW 34.04.130, we feel it appropriate to look to the federal realm for guidance in this area. Initially, it is noted that whether or not the statutory requirements of finality are satisfied in any given case depends not upon the label affixed to its action by the administrative agency, but rather upon a realistic appraisal of the consequences of such action. Isbrandtsen Co. v. United States, 211 F.2d 51, 55 (D.C. Cir. 1954). Justice Frankfurter stated in Columbia Broadcasting System, Inc. v. United States, 316 U.S. 407, 425, 86 L. Ed. 1563, 62 S. Ct. 1194 (1942), that:

[30]

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Bluebook (online)
523 P.2d 1181, 84 Wash. 2d 25, 1974 Wash. LEXIS 707, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-ecology-v-city-of-kirkland-wash-1974.