Overlake Fund v. Shorelines Hearings Board

954 P.2d 304, 90 Wash. App. 746

• Court: Court of Appeals of Washington
• Decided: April 13, 1998
• Docket: 37896-1-1, 38012-5-1
• Status: Published

Opinions

Agid, J.

These are difficult times for property owners, community groups and municipalities, the triumvirate involved in every major land use issue. The manner in which one uses—or does not use—land is debated endlessly and has become a volatile emotional issue for all concerned. Peace may not be at hand, but the courts and the agencies charged with applying land use and environmental regulations have a responsibility to be evenhanded and balance the many competing concerns.

After five years and seven redesigns, the City of Bellevue (Bellevue) issued a conditional use permit, a shoreline height variance and a substantial development permit to the Overlake Fund to construct a hotel on the shore of Lake Washington. Bellevue imposed numerous conditions on the permits to protect the surrounding environment and comply with zoning, building, traffic and fire safety requirements. No one appealed the conditional use permit. Geoffrey Bidwell appealed the shoreline permits to the Shorelines Hearings Board (Board). After a hearing, the Board affirmed the height variance. It also “affirmed” the substantial development permit, but only after imposing additional conditions which prohibited Overlake from using any of the wetland on the site for any purpose. Over-lake and Bellevue appealed the substantial development permit decision to the superior court which affirmed the Board. Bellevue and Overlake appealed to this court. We conclude that the administrative board unnecessarily thwarted Bellevue’s careful, balanced permitting decisions by considering issues not before it and failing to recognize the importance of balancing competing interests. The Board ignored or did not inquire into the reasons for the municipal balancing act, considered only one of the many competing values that contributed to Bellevue’s decision and substituted its judgment on the reasonableness of the use for that of local decision-makers. We hold that the decision of the Board redesigning the Overlake hotel project was arbitrary and capricious and not supported by substantial evidence. We therefore reverse and remand to reinstate the original permits issued by Bellevue. This will restore the balance Bellevue sought to achieve.¹

FACTS

After years of negotiation and attempts to find an economically-viable plan that satisfied its myriad planning and environmental concerns, Bellevue issued a substantial development permit and shoreline variance to Overlake on October 21, 1993. As finally approved, the permits allowed Overlake to construct a 7-story, 238 room hotel with parking for 346 vehicles on a 6.9 acre parcel of land located between downtown Bellevue and the Lake Washington shoreline. The Department of Ecology (DOE) approved the permit and variance subject to certain conditions on November 29, 1993. As outlined above, these appeals followed.

Overlake has owned the property on which the hotel is to be built since 1980. It has been zoned for urban uses, Office and Limited Business, since 1981. Of the 6.99 acre site, 0.8 acre is dry land. The remaining 6.19 acres are wetland. The proposed construction would use 1.62 acres of the site and impact between .73 and 1 acre, or 13 percent of the site’s total wetland. If no further design review changes are authorized, the project will have some impact on .82 acre of the 6.19 acres of wetland, but 5.73 acres will remain untouched. The proposal was conditioned on the developer’s implementing a number of wetland mitigation measures. The Corps of Engineers,² the Department of Ecology and Bellevue have all issued permits and approved the project. It has gone through the process of developing an environmental impact statement and seven redesigns over five years. The original proposal would have covered 1.5 acres of wetland. That has been reduced to a little over half of the originally-proposed wetland coverage. Even though the Corps approved filling an acre of the property, Bellevue insisted on redesigns that put the structure as far upland as possible on the dry portion of the property and located the wetland development on pilings to minimize any impact on the wetland below.

The property is bisected by Sturtevant Creek which flows from the north through the wetland and connects to Mercer Slough and Lake Washington. The Board found that although road and building development had acted over time to isolate the wetland adjacent to the project from the larger Mercer Slough wetland, it remains a functioning part of the Mercer Slough system as a whole and is not an isolated wetland.³ The substantial development permit approved by Bellevue allowed the hotel to cover 52,274 square feet of the site, including 35,624 square feet on pilings over the wetland. The Board observed that, as approved, the hotel would cover all of the dry land on the site, except for the street setbacks required by Bellevue, and .82 acre of the wetland. It also found that, although there had been agricultural activities in portions of the wetland system, the site is in an essentially natural state. The Board concluded that the proposed development would intrude into and damage the wetland and that the proposed mitigation plan failed to adequately mitigate the impact of the hotel on it. The Board approved a height variance of 92.27 feet because Bidwell failed to meet his burden of proof on that issue, but modified the substantial development permit to prohibit any use of the wetland on the site. It also imposed, sua sponte, view, public access and lighting conditions on the project.⁴

DISCUSSION

Standard of Review

All development on the shorelines of this state undertaken after June 1,1971, must conform to the Shoreline Management Act of 1971 (SMA), RCW 90.58. Buechel v. Department of Ecology, 125 Wn.2d 196, 203, 884 P.2d 910 (1994). The Shorelines Hearings Board reviews the issuance of a shoreline development permit de novo. Buechel, 125 Wn.2d at 202. Appellate review is of the Board’s decision, not that of either the local government or the superior court, and is based on the record before the Board. Buechel, 125 Wn.2d at 202.⁵ Courts review the Board’s decision to determine whether it is supported by substantial evidence in light of the entire record, or is arbitrary and capricious.* ****⁶ RCW 34.05.570(3); Heinmiller v. Department of Health, 127 Wn.2d 595, 607, 903 P.2d 433, 909 P.2d 1294 (1995), cert. denied, 516 U.S. 1006, 116 S. Ct. 2526, 135 L. Ed. 2d 1051 (1996); Buechel, 125 Wn.2d at 202. “ ‘Substantial evidence is “evidence in sufficient quantum to persuade a fair-minded person of the truth of the declared premises”.’ ” Heinmiller, 127 Wn.2d at 607 (quoting Nghiem v. State, 73 Wn. App. 405, 412, 869 P.2d 1086 (1994)). A decision is arbitrary and capricious if it is “ ‘willful and unreasoning action in disregard of [the] facts and circumstances.’ ” Buechel, 125 Wn.2d at 202 (quoting Skagit County v. Department of Ecology, 93 Wn.2d 742, 749, 613 P.2d 115 (1980)). Where there is room for two opinions, an action is not arbitrary and capricious so long as it is undertaken honestly and upon due consideration, even if the reviewing court disagrees with it. Buechel, 125 Wn.2d at 202.

Legal determinations of administrative agencies are reviewed under an error of law standard which permits a reviewing court to substitute its interpretation of the law for that of the agency. Haley v. Medical Disciplinary Bd., 117 Wn.2d 720, 728, 818 P.2d 1062 (1991). While we give substantial weight to agencies’ interpretations of the law within their areas of expertise, we need not do so when they are applying the law of another jurisdiction. Id. at 728.

The Board’s Findings

The Board made several dispositive findings which Overlake and Bellevue contend are not supported by substantial evidence. The Board found that: (1) the wetland on the site is in an essentially natural state (finding XIII);⁷ (2) its function and value is similar to that of the Mercer Slough (finding IV);⁸ and (3) neither Overlake nor Bellevue designed the project to minimize intrusion into the wetland (finding XI).⁹ They also challenge the Board’s conclusion, based on those findings, that Overlake’s mitigation plan failed to adequately mitigate the impact of the project on the wetland. See Batchelder v. City of Seattle, 77 Wn. App. 154, 158, 890 P.2d 25, review denied, 127 Wn.2d 1022 (1995) (there is “substantial” evidence to support an agency decision if it would convince an unprejudiced, thinking mind of the truth of the declared premise).¹⁰

While there is evidence in the record to support some of the Board’s findings,¹¹ it is insufficient to support the critical findings that led to the remedy the Board imposed. The Board heard evidence that the affected wetland is a “type-A” wetland and that Sturtevant Creek, which bisects the project site, is a “type-A riparian corridor.”¹² It also heard evidence about the function and value of the wetland in the general area, as well as the impact of the proposed development on both the project area wetland and parts of the Mercer Slough, including testimony that the site is a very sensitive area that is part of the slough system generally, that the vegetation on the main wetland block area is similar to that of the Mercer Slough itself, and that there are various species of birds and mammals on site.

But the issue in this case is not simply whether the wetland adjacent to the project is part of the Mercer Slough or not. There was testimony on both sides of that issue. Besides the testimony the Board relied on, other witnesses testified that the Mercer Slough is approximately 1,000 feet from the project. Those witnesses established that the wetland adjacent to the project is significantly degraded by the proliferation of commercial development next to it and is not of the same quality as either Sturtevant Creek or the Mercer Slough. There was also testimony that the adjacent wetland has no trees or shrubs on it and is covered with reed canary grass, an invasive nonnative species that moved in after the earlier agricultural uses were abandoned and which is of little value to the native wetland species except for flood storage and biofiltration. The flood control and drainage capabilities of the area will be affected very little because the portion of the building and garage which are over the wetland will be built on pilings, rather than on the fill placed in the wetland which the Corps of Engineers had approved. Bellevue required the applicants to provide wetland enhancement for .64 acres on the property and 1 acre in Mercer Slough Nature Park to compensate for putting pilings in .82 acres of its site. The applicant must place native trees, shrubs and other plantings in these areas to improve the wildlife habitat and water quality function of the wetland. Thus, even if the adjacent wetland is part of the Mercer Slough system, substantial evidence does not establish that the project will degrade that system as a whole.

The Board also concluded that neither Overlake nor Bellevue designed the project to minimize intrusion into the wetland. It found that “Overlake’s design has the hotel built around a central courtyard, thus using up precious dry land.” Bellevue required setbacks from the street on two sides for what the Board characterized as “aesthetic” reasons, thus forcing the entire structure farther into the wetland. Finding XI. The Board further explained in finding VII:

Bellevue’s land use code incorporates a wide range of values, from environmental protection to protection from adverse effects of density, noise, and parking. One of the values it seeks to farther is the aesthetic one of how a development looks and feels from the street. To this end the City requires set-backs from the street for new construction. The required setback for the Overlake project would by code have been 50 feet, unless a smaller setback were approved. The City did grant smaller setbacks. In order to reduce the intrusion of the hotel into the wetlands, City staff had recommended little or no setback from the street line on the S.E. 6th side. The City Council, apparently weighing street [a] esthetics more heavily, required a 20-foot setback from the street, at the cost of greater intrusion into the wetland.

The Board correctly observed that the building is designed around a courtyard. The courtyard would take up 8,000-9,000 square feet of usable building area. However, this is a de minimus intrusion into the wetland. Even if it were ehminated, the portion of the project on pilings would still cover over 27,000 square feet of the wetland. The size and configuration of the auto court promotes access and traffic safety and reduces traffic on adjacent streets. The Board was also correct in observing that, by requiring 20-foot setbacks, Bellevue did not go as far as it theoretically could have to minimize intrusion onto the wetland. But this was an improper consideration and could not be used as a basis for revising the project.

The Board’s finding that Bellevue required a 20-foot setback for “aesthetic reasons” is also simply wrong. There was no appeal of the Conditional Use Permit which was the only permit incorporating Bellevue’s decision to grant 30-foot rather than 50-foot variances from the 50-foot setbacks required by the Land Use Code for the Office, Limited Business (OLB) zone in which the project is located. Because the Conditional Use Permit was not appealed, the issue was not before the Board and no party developed a record on the basis for Bellevue’s decision to require a 20-foot setback.¹³ Yet it was Bellevue’s decision to require that setback which prompted the Board to find that Bellevue had given insufficient consideration to the shoreline issues and focused instead on streetside “aesthetic” considerations when it approved the project.

In fact, the reasons for the 20-foot setback requirement, as reflected in the hearing examiner’s findings, were completely unrelated to “aesthetics.” Rather, they stemmed from the problems the applicant and Bellevue had in vacating a right-of-way adjacent to the property because yet another agency, the State Department of Transportation, was considering using that right-of-way to install a light rail system. Because the right-of-way was not available, the 20-foot setback was necessary to provide fire lanes and sight distances for traffic safety purposes. Bellevue specifically recognized the relationship between the setback and the wetland impact in its Conditional Use Permit and granted the 30-foot variance in order to reduce that impact to the maximum degree possible without ignoring legitimate fire and traffic safety concerns. Far from being an “aesthetic” decision, this was one of many ways in which Bellevue balanced competing important safety and environmental concerns.

This factual error was compounded by the Board’s legal conclusion that Bellevue’s failure to grant a variance to permit a zero lot line (i.e., no setback at all) was in conflict with the Bellevue Shoreline Master Program (BSMP). But it was unable to cite any provision of the BSMP which requires, prohibits or even relates to setbacks or variances from them. Rather, the Board assumed that Bellevue required a 20-foot setback for aesthetic reasons, thereby giving insufficient weight to shoreline concerns. Based on its assumption, it then concluded that Bellevue’s action was in conflict with the BSME The Board then cited the provision of the BSMP which requires Bellevue to give effect to the BSMP where there is a conflict between the land use and shoreline regulations. Bellevue City Code (BCC) 20.25E.030. But because there is no BSMP setback regulation that conflicts with the 50-foot setback requirement in the OLB land use zone, that provision simply does not apply here. Nor is there any provision in the BSMP which provides that Bellevue must grant setback variances to minimize the impact on wetland or the shoreline. The combination of this legal error and the factual errors on which it is premised undercuts much of the rationale for the Board’s decision. It was this fundamental error, together with the Board’s admittedly sua sponte determination discussed below that a hotel, a use permitted outright by the zoning, was not a reasonable use of the property, that produced its decision to “redesign” the building to do what Bellevue had not done—remove all potential for any impact on the adjacent wetland.

After reviewing the record, we are convinced that the real reason for the Board’s decision was that it believed the proposed use was not reasonable.¹⁴ The Board acknowledged that the reasonableness of the use of this property was not before it. Yet it went out of its way to announce that it “questioned” the reasonableness of the use and would have só opined had it been asked. The Board had no basis on which to consider whether the Bellevue City Council had adopted a reasonable use for the property. No one questioned that legislative decision, and no change of use or zoning was required to build this project. The Board’s sua sponte consideration of this issue reveals its true attitude toward the proposed project, an attitude which affected its ability to look objectively at the evidence and balance the competing values that were properly before it.

Most of the problems with the sufficiency of the record and the Board’s findings arose from the real nature of the appeal. Bidwell’s primary objection to the project was not wetland impact but the potential impact the height of the building could have on the blue heron rookery 900 feet from the project. He had “no problem” with the building being on pilings in the wetland and would have traded greater wetland coverage for reduced height. While he did present testimony about the nature of the wetland, and particularly the Mercer Slough, his emphasis was on the height of the building. He thus provided little basis for the Board to conclude that the impacts of the proposal on the adjacent wetland, as opposed to the height of the building, would have any impact on the slough and its wetland park 1,000+ feet away. Because his appeal focused on height impacts, and the Board rejected that argument for lack of evidence, he did not develop a record sufficient to support the Board’s findings on wetland impact or its remedy.

The point is that, even if the adjacent wetland is part of the system in which the Mercer Slough Nature Park is located, that does not answer the questions presented to the Board by Bidwell’s appeal. The SMA does not prohibit all development in the shoreline. Rather, its purpose is to allow careful development of shorelines by balancing public access, preservation of shoreline habitat and private property rights through coordinated planning, i.e., shoreline master plans which must be approved by DOE. RCW 90.58.020. In this case, the Board ignored the other components of the SMA’s purpose in order to prohibit any development at all in the wetland. The Board’s findings and conclusions establish that it did not think the proposal was a reasonable use of the land and that it believed Bellevue had ignored the mandate of the SMA by sacrificing some wetland protection to its selfish “aesthetic” concerns. It therefore redesigned the project in a manner that makes it completely infeasible to build.

The SMA is a very significant piece of legislation with an extremely laudable purpose. But it is not the only statute or ordinance that decision-makers must consider in achieving the balance mandated by the SMA. Because the Board arbitrarily chose not to learn about or to ignore the other significant considerations that went into the decisions of the Corps of Engineers, the Department of Ecology and Bellevue to permit this project, its decision cannot stand.

The dissent is premised on the same fatal flaw.

The majority allows there was substantial evidence to support the Board’s finding that the wetland on the site is in a natural state, with function and value similar to Mercer Slough. This was all that was necessary to show that the project, which degrades close to an acre of the wetland, was at odds with the policies calling for conservation of existing natural resources.

Dissent at 769 (footnote omitted). But the mere fact that a wetland is in a “natural” state does not require that it remain that way or dictate the result of the permitting process. Both the SMA and the Bellevue Shoreline Master Program contemplate and permit the full range of land uses even within the shoreline district. Different zoning classifications and shoreline designations are designed to provide different levels of protection for shorelines. While Bellevue has not expressly adopted these designations, they establish the range of uses permitted and expected in the shoreline. The most restrictive designation is “Natural.” WAC 173-16-040(4)(b)(i). The natural environment “is intended to preserve and restore those natural resource systems existing relatively free of human influence” and therefore permits little or no development. Id. By contrast, the “Urban” environment is the least restrictive designation, recognizing that commercial, residential and industrial uses will be located in those portions of the shoreline area. WAC 173-16-040(4) (b) (iv). ££[H]igh-intensity land-use” is expected in the urban environment which “is particularly suitable to those areas presently subjected to extremely intensive use pressure, as well as areas planned to accommodate urban expansion.” Id. In other words, this is an environment that would be characterized as “urban” under the classifications recommended in the SMA. The State shoreline regulations also recognize that, within the limited urban shoreline area, “emphasis should be given to development within already developed areas.” Id.

As noted above, Bellevue designated the Overlake property OLB, Office and Limited Business, in which hotels are a use permitted outright. The adjoining parcels are already developed with office or industrial uses. This is an urban shoreline environment. When it approved the Bellevue Shoreline Master Program,¹⁵ DOE approved Bellevue’s decision to permit the high-intensity commercial uses contemplated by the regulations governing the urban Shoreline environment along this portion of Lake Washington. In so doing, both the City and DOE recognized that the area in which this proposal is located is an already-developed area within a city which is suitable for commercial development. In an ideal world, we might well choose to preserve all shorelines in a natural, undisturbed state. But the Shoreline Management Act, DOE and the City understand that, in a practical world, urban pressures exist and permitting a range of uses is necessary to accommodate those pressures. On the sliding scale of values contemplated by the Act and regulations, the natural condition of the wetland portion of the site simply does not justify effectively denying a permit for an urban use in an urban area of the shoreline.

In short, we conclude that the Board’s decision to limit building to the dry land area on the site was not supported by evidence that is substantial in light of the whole record before the court. Heinmiller, 127 Wn.2d at 607. In addition, in deciding whether Bidwell had met his burden of proof on appeal of the substantial development permit, the Board relied on the setbacks approved in the conditional use permit and the reasonableness of the use, neither of which was before it and neither of which it could consider. Its decision was therefore “in disregard of [the] facts” and arbitrary and capricious. Buechel, 125 Wn.2d at 202.

Because we decide that the Board’s decision must be reversed for these reasons, we need not decide the other issues Bellevue and Overlake raise. Bidwell’s motion to strike portions of Overlake’s reply brief is denied.

Reversed and remanded to reinstate the substantial development permit as issued by the City of Bellevue.

Kennedy, C.J., concurs.

1 Geoffrey Bidwell’s motion to strike portions of Overlake’s reply brief was passed to hearing on the merits. The reply brief is 23 pages long and includes a 171-page appendix. The record is voluminous. The materials in the appendix are in the record, and locating them in one place makes it easier for the court to find them. We therefore deny the motion to strike.

2 The Corps permit authorized Overlake to fill up to one acre of the site.

3 The Board’s finding was based on a wetland delineation conducted in October 1990 by environmental consultants Shapiro & Associates who determined that the site included approximately .8 acre of dry land and that the remainder of the site was wetland. We note that the proposal vested upon application on June 24, 1987. The Sensitive Area Overlay District and its wetland classifications therefore do not actually apply to the project.

4 The specific conditions imposed by the Board were as follows:

a) No portion of the hotel, parking structure, or any other building on the site may extend into the wetland . . . Because the dry land on the site is less than the footprint of the proposed structures, the footprint of the structures shall be reduced, in a configuration which avoids intrusion into the wetland; and

b) The developer may create a balcony, promenade, deck or similar appurtenance to the hotel extending out over the wetland by up to a total of 5,000 square feet, provided: that any such structure is readily available to the public at all reasonable daylight hours . . . ; and

c) Neither the hotel, the parking structure, any other structure, nor the viewing structure described above may be supported by any pier, piling, or other foundation element in the wetland, and the edge of the wetland may not be excavated or otherwise altered; and

d) All exterior lighting on the wetland sides of the structures shall be aimed toward the structures or otherwise away from the wetland, so as to minimize the effects of artificial lights on wildlife in the wetland; and

e) Because these conditions will reduce the impacts of the project on the wetland, the wetland mitigation plan elements involving any work more than two hundred yards from the structures are eliminated. Those elements of the mitigation within two hundred yards remain as approved by the City.

5 After the Supreme Court’s decision in Dioxin/Organochlorine Ctr. v. Pollution Control Hearings Bd., 131 Wn.2d 345, 932 P.2d 158 (1997), there is some question about which decision we in fact review. The majority there reviewed the superior court’s decision directly, even though the superior court was acting in an appellate capacity reviewing a legal conclusion of the Pollution Control Hearings Board (PCHB). 131 Wn.2d at 349-50, 352, 365. The concurrence/dissent pointed out that the question whether the PCHB had erred was “the only question which is properly before us procedurally” and went on to analyze that issue. 131 Wn.2d at 365. The majority did not respond. Under these circumstances, we cannot conclude that the majority intended to overrule settled law directing us to review the administrative decision, not that of the superior court. In re Electric Lightwave, Inc., 123 Wn.2d 530, 541, 869 P.2d 1045 (1994) (Court of Appeals does not rely on cases that fail to specifically raise or decide an issue).

6 We have revised our opinion [Overlake Fund v. Shorelines Hearings Board, Nos. 37896-1-I; 38012-5-I (Wash. Ct. App. Jan. 12, 1998)] to remove references to the clearly erroneous standard in light of counsel’s contention on a motion for reconsideration that we should have applied the substantial evidence standard. We note, however, that the result is the same because we had already examined the Board’s findings under the substantial evidence standard. We further note that neither counsel cited the case they now rely on in their original briefs and relied instead on Buechel, 125 Wn.2d 196, a case that incorporates the clearly erroneous standard.

7 Finding XIII states:

Despite some history of agricultural activities in portions of the wetland system, the portion of the wetland on which the proposed hotel would sit is in an essentially natural state, and is a natural shoreline.

8 Finding IV states:

The wetland on which the project sits is a roughly rectangular piece bounded by S.E. 6th, S.E. 8th, 112th S.E., and 114th S.E. It is bisected by Sturtevant Creek, which flows from the north, through the wetland, and connects to Mercer Slough and Lake Washington proper. The wetland is an upstream part of the Mercer Slough system, and partakes of many of the wetland values and functions performed by Mercer Slough as a whole. “While road and building development has incrementally acted to isolate the project area wetland from the larger Mercer Slough wetland, it originally was and is now a part of that larger wetland, and it is not an isolated wetland.

A wetland delineation was conducted in October, 1990, by Shapiro and Associates, environmental consultants in Seattle, which determined the site to include approximately 0.8 acre of dry land, the balance being wetland.

Wetland functions performed by this smaller portion of the Mercer Slough wetland include flood storage, storm water filtration, and animal habitat, encompassing mammals, birds, reptiles and amphibians. By the evidence of dead animals found on adjacent streets, both beaver and muskrat are present, and blue herons nest in the portion of the Mercer Slough system immediately south of this wetland rectangle. Evidence of fish life in Sturtevant Creek exists, although its importance in that regard is not clear.

The Mercer Slough wetland system is a natural feature of the first importance. It has been the focus of a great deal of citizen activity and concern. As a result of citizen interest, the City of Bellevue designated a 320 acre area downstream from this project as a nature park, with funding coming from state and local government sources as well as directly from Bellevue citizens voting to tax themselves for property acquisition. The importance of Mercer Slough is increased by the destruction of the great majority of the wetlands bordering Lake Washington, both in Bellevue and on other shorelines of the Lake.

9 Finding XI states:

Despite the huge size of the proposed building in relation to the small amount of dry land available on the site, neither Overlake nor the City designed the project to minimize the intrusion into the wetland. Overlake’s design has the hotel built around a central courtyard, thus using up precious dry land. Bellevue required setbacks from the street on two sides for aesthetic reasons, thus forcing the entire structure farther into the wetland.

10 Overlake’s argument incorrectly assumes that the Board is required to defer to a local government’s decision to grant a substantial development permit “[ajbsent substantial evidence that [its] decision was inconsistent with the [SMA] or the [applicable] Master Program.” While due deference is given the specialized knowledge and expertise of the Board, the Board is not required to give the local government’s decision to grant the permit any particular deference. Buechel, 125 Wn.2d at 202-03.

11 As the superior court observed below, the “record [is] there for [the appellate court] to paw through.”

12 But see footnote 3, above.

13 Bidwell contends on reconsideration that the validity of the Conditional Use Permit (CUP) was at issue before the Board. However, it was not appealed. Shorelines Hearings Board Prehearing Order (listing issues). A CUP is a Process I permit. Bellevue Land Use Code (BLUC) 20.35.015(B)(1). Appeals of final decisions on CUPs is to the superior court under RCW 36.70C, not the Shorelines Hearings Board. BLUC 20.35.070(A).

14 Or, in the Board’s words:

The question of whether the proposed project constitutes a reasonable use was not brought before the Board by either party directly. However, a proposal which would put such a massive structure on, and overlapping beyond, such a tiny sliver of dry land, inclines the Board, sua sponte, to wonder whether such a use is reasonable for this site.

Finding V And:

We find that while the height variance for the project could sensibly be questioned on a number of [criteria], including the reasonableness of the proposed use, appellant has failed to carry his burden of proof .... Absent such proof by appellant, the Board cannot overturn the height variance.

Finding XVII.

15 In the Bellevue Land Use Code, it is called the Shoreline Overlay District. BCC 20.25E.