Filed Washington State Court of Appeals Division Two
December 13, 2022 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II PRESERVE RESPONSIBLE SHORELINE MANAGEMENT, Alice Tawresey, Robert Day, No. 56808-0-II Bainbridge Shoreline Homeowners, Dick Haugan, Linda Young, Don Flora, John Rosling, Bainbridge Defense Fund, Gary Tripp, and Point Monroe Lagoon Home Owners Association, Inc.,
Appellants,
v. UNPUBLISHED OPINION
CITY OF BAINBRIDGE ISLAND, Washington State Department of Ecology, Environmental Land Use Hearing Office and Growth Management Hearings Board Central Puget Sound Region,
Respondents,
and
Kitsap County Association of Realtors,
Intervenor Below.
PRICE, J. — Preserve Responsible Shoreline Management (PRSM) appeals the Growth
Management Hearing Board’s (Board) order upholding the City of Bainbridge Island’s (City)
shoreline master program (Master Program). PRSM asserts the following grounds for relief under
the Administrative Procedure Act (APA):1 the Board erroneously interpreted or applied the law,
1 Ch. 34.05 RCW. No. 56808-0-II
the Board’s order was not supported by substantial evidence, and the Board’s order was arbitrary
or capricious. PRSM also asserts that the Master Program was unconstitutional. We determine
that PRSM fails to meet its burden for relief and affirm.
FACTS
I. BAINBRIDGE ISLAND MASTER PROGRAM UPDATE
In 2010, the City began updating its Master Program. The City commissioned several
scientific studies to help determine how to protect the shoreline and received public comments on
the update to the Master Program.
A. SCIENTIFIC STUDIES
One study, commissioned by the City in 2003, was the Bainbridge Island Nearshore
Assessment. The study summarized the then-available science applicable to the shorelines in
Bainbridge Island. The study discussed various aspects of the shoreline ecosystem, including
discussion of nearshore animal species, nearshore habitats and ecological functions, nearshore
physical processes such as erosion and tides, and impacts of human shoreline modifications like
bulkheads on nearshore habitats. The study made several recommendations, including that the
City produce an inventory of the Bainbridge Island shoreline where the marine habitats meet land.
The second study, commissioned by the City in 2004, was the Bainbridge Island Nearshore
Habitat Characterization & Assessment, Management Strategy Prioritization, and Monitoring
Recommendations (Nearshore Habitat Characterization). The study separated the 53 miles of
shoreline into 9 management areas, comprised of 201 individual shoreline reaches. Each shoreline
reach was given an individual ecological function score based in its geomorphology, habitat
structure, habitat processes, and other controlling factors.
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In 2010, the City commissioned Coastal Geologic Services Inc. to prepare the Bainbridge
Island Current and Historic Coastal Geomorphic/Feeder Bluff Mapping. The purpose of the study
was to “to map coastal geomorphic shoretypes (such as ‘feeder bluffs’) and prioritize restoration
and conservation sites along the marine shores of Bainbridge Island nearshore . . . .”
Administrative Record (AR) at 4152. The study divided the shoreline into 32 areas called “drift
cells” and assessed their ability to serve as “functioning sediment sources and transport pathways”
necessary to maintain intact coastal geomorphic processes. AR at 4153, 4160. The study
addressed the negative impacts of shoreline modifications, such as bulkheads and other forms of
shore armoring. The study stated that “sediment impoundment is probably the most significant
negative impact” of shore armoring, that “[s]everal habitats of particular value to the nearshore
ecosystem rely on intact geomorphic processes and are commonly impacted by shore armor,” and
that shoreline armoring “can have substantial negative impacts on nearshore habitats” through the
loss of marine vegetation, the loss of nearshore large woody debris, and the “partial or major loss
of spits that form estuaries and embayments.” AR at 4154-55.
In 2011, the City also commissioned an update to the 2003 and 2004 studies, the Addendum
to the Summary of the Science Report (Addendum) by Herrera Environmental Consultants Inc.
(Herrera). The Addendum relied on more than 250 sources, including studies and reports specific
to the Puget Sound. The purpose of the Addendum was to provide “updated information on
shoreline and nearshore ecology, physical processes, habitats, and biological resources of
Bainbridge Island” and make recommendations for implementation of the “no net loss” standard
and for “marine shoreline protective buffers considering geomorphic conditions and shoreline
vegetation.” AR at 4240-41. Specific to the buffers, the Addendum stated that “[b]uffers can be
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important to the protection of the functions and processes of the nearshore environments along
marine coastlines,” and suggested different approaches to shoreline buffers. AR at 4306. The two
suggestions for shoreline buffers included fixed-width buffers based on typical conditions present
on Bainbridge Island and variable-width buffers, which could result from the different site
conditions and resources to be protected. The Addendum stated:
Approaches to establishing buffers vary between fixed or variable width, with the former generally being the most common (Haberstock et al. 2000). To be effective under a worst-case scenario, and to ensure success in the face of uncertainty about specific site conditions, May (2000) and Haberstock (2000) suggest that fixed- width buffers should be designed conservatively (i.e., larger than the bare minimum needed for protection).
AR at 4314.
Based on the Addendum, the City requested that Herrera make specific recommendations
for shoreline buffers to be incorporated into the Master Program. Herrera created two memoranda:
August 11, 2011, Memorandum re: Documentation of Marine Shoreline Buffer Recommendation
Discussions and August 31, 2011, Memorandum re: Clarification on Herrera August 11, 2011,
Documentation of Marine Shoreline Buffer Recommendation Discussions Memo. The
memoranda explained that shoreline buffers protect a wide variety of ecological functions,
including water quality and mineralization, fine sediment control, shade/microclimate, fish and
invertebrate food from litterfall and large woody debris, and hydrology/slope stability. The
memoranda summarized the buffer width recommendations made throughout relevant scientific
literature and how the buffer widths widely vary based on the protection goal of the buffer. Buffer
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width recommendations mostly ranged from 16 to 328 feet, with the buffers width
recommendation for removing pollution from stormwater runoff reaching 1,969 feet. The buffers
in the scientific research were what the literature stated was necessary to achieve at least 80 percent
buffer effectivity.
Herrera recommended that the City establish a two-tiered buffer system. Herrera
recommended that “Zone 1” be established as a “riparian protection zone” in which existing native
vegetation would be preserved and development would be significantly restricted. AR at 4362.
This recommendation was based on the ecological functions provided by native vegetation close
to the shoreline that is fundamental to maintaining a healthy functioning marine nearshore. Herrera
recommended that Zone 1 extend a minimum of 30 feet from the high water mark, or to the limit
of the area of the shoreline that had a 65 percent canopy of native vegetation, whichever was
greater, in order to achieve 70 percent or greater effectiveness at protecting water quality. The
memorandum stated that 30 foot buffers were the minimum to achieve that 70 percent effectiveness
level.
Herrera recommended that “Zone 2,” the second tier of the buffer, be comprised of
variable-width buffers depending on the shoreline designation of a specific site. Herrera
recommended that Zone 2 be located immediately landward of Zone 1 and serve to provide
additional protection to the riparian protection zone and other protection functions. Herrera’s
recommendations included the consideration that Bainbridge Island’s shorelines were 82 percent
developed, and the City desired to limit the number of existing structures that would be
nonconforming with wide shoreline buffers under the proposed Master Program update.
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The final item commissioned by the City was the Cumulative Impacts Analysis for City of
Bainbridge Island’s Shoreline: Puget Sound, prepared by Herrera. This analysis considered
whether the Master Program’s provisions would ensure no net loss of shoreline ecological
functions and fairly allocate the burden of addressing cumulative impacts. This analysis
summarized the shoreline’s existing conditions based on the previous studies, considered the
development that was anticipated on the shoreline, considered the likely impacts of the
development on shoreline ecological functions, and considered how implementation of the
proposed Master Program would affect those functions. The analysis concluded that
“implementation of the proposed [Master Program] is anticipated to achieve no net loss of
ecological functions in the City of Bainbridge Island’s shorelines.” AR at 2206.
B. PUBLIC COMMENTS AND COMMUNICATION
When the City opened public comments on the Master Program update, it received over
1,600 comments. The City individually responded to almost all of the comments submitted to it,
although some of the City’s responses only stated, “Comment noted.” E.g., AR at 2773. The
Department of Ecology (Ecology) received at least 111 comments on the proposed Master Program
update, and the City categorized and then responded to the Ecology comments in groups. Some
comments did not receive a response from the City.
II. THE MASTER PROGRAM
On July 14, 2014, at the conclusion of the update process, the City approved the proposed
Master Program. Following the local government’s approval, the Shoreline Management Act of
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1971 (SMA)2 required Ecology to determine if the Master Program comports with state law.3
RCW 90.58.050. In this case, Ecology approved the City’s Master Program on July 16. The
Master Program went into effect on July 30, 2014.
A. GOALS AND STANDARDS IN THE MASTER PROGRAM
The Master Program’s “Master Goal” contained in section 1.5 stated, “An over-arching
goal of this master program is to ensure that future use and development of the City’s shoreline
maintain a balance between competing uses, results in no net loss of shoreline ecological functions,
and achieves a net ecosystem improvement over time.” AR at 50.
The Master Program stated that “[t]he ‘precautionary principle’ was employed as guidance
in updating the policies and regulations of this [Master Program].” AR at 42. The Master Program
cited WAC 173-26-201(3)(g)4 as authority for the precautionary principle.
B. SHORELINE BUFFERS
Chapter four of the Master Program imposed shoreline buffers and dictated their widths.
The Master Program defines a “buffer” as:
An area of land that is designed and designated to permanently remain vegetated in a predominantly undisturbed and natural condition and/or an area that may need to be enhanced to support ecological processes, or ecosystem-wide functions and to
2 Ch. 90.58 RCW. 3 “Local government shall have the primary responsibility for initiating the planning required by this chapter and administering the regulatory program consistent with the policy and provisions of this chapter. The department shall act primarily in a supportive and review capacity with an emphasis on providing assistance to local government and on insuring compliance with the policy and provisions of this chapter.” RCW 90.58.050 (emphasis added). 4 “As a general rule, the less known about existing resources, the more protective shoreline master program provisions should be to avoid unanticipated impacts to shoreline resources.” WAC 173-26-201(3)(g).
7 No. 56808-0-II
protect an adjacent aquatic or wetland area from upland impacts and to provide habitat for wildlife.
AR at 260.
Under section 4.1.3.5(3) of the Master Program, property owners must meet the City’s
vegetation management requirements through the use of buffers. The standardized shoreline
buffers are separated into two zones. Consistent with the recommendations from Herrera in its
scientific study, Zone 1 extends landward from the ordinary high water point a minimum of 30
feet or to the limit of the 65 percent native vegetation canopy, whichever is greater, as described
in “Table 4-3.” Within Zone 1, existing vegetative cover must remain.
Zone 2 extends landward from the landward boundary of Zone 1 to the outer edge of the
total shoreline buffer set forth in Table 4-3. Table 4-3 identifies five land designations and the
buffer widths for the different shoreline categories. Activities are less restricted in Zone 2, and
property owners may develop and utilize decks, gardens, and some other residential uses, as long
as impacts on shoreline ecological function are mitigated.
III. PRSM’S PETITION FOR REVIEW TO THE BOARD
In October 2014, PRSM filed a petition for review with the Board, asserting that the City’s
Master Program violated the SMA. PRSM amended its petition in November 2014. PRSM named
the City and Ecology as respondents.
In its amended petition to the Board, PRSM raised the issues of:
24. Whether the City is not in compliance with RCW 90.58.130 and WAC 173-26- 090 by failing to encourage public participation by not responding to public comments. .... 60. Whether the City is not in compliance with RCW 90.58.100(1) and WAC 173-26-201 in failing to identify and assemble the most current, accurate,
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and complete scientific and technical information available, failing to consider the context, scope, magnitude, significance, and potential limitations of the scientific information, and make use of and incorporate all available scientific information. In particular, the City’s failures in regard to technical and scientific information are evident in regard to: .... c. The fact that the buffers selected were not driven by science-based information but City policy unrelated to science; .... e. The master program provisions are not based on a reasoned, objective evaluation of the relative merits of the conflicting scientific data.
AR at 572, 580-81.
In its prehearing brief for the Board, PRSM argued that the City erred when it relied on
“policy, rather than science” when it established the shoreline buffers. AR at 3708. PRSM
identified that the specific policy consideration to which it was referring was the City’s
consideration of the number of existing structures that would not conform to the Master Program’s
shoreline buffers. PRSM asserted that “the suggested minimum buffer was based on ensuring that
residential structures would be nonconforming.” AR at 3708. In other words, PRSM believed the
City increased the size of the buffers, not because the science required it, but because the City
simply wanted to cast as wide of a net as possible to increase the number of structures that would
be considered nonconforming.
PRSM also argued in its prehearing brief that the buffers were oversized to excessively
improve the “ecological functions” beyond what the SMA allows and the City deviated from the
no net loss standard. AR at 3708. PRSM stated that the shoreline buffers “must be used to achieve
the goal of ‘no net loss,’ not improvement which would be a benefit to the public at large.” AR
at 3708.
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IV. THE BOARD’S DECISION
In April 2015, the Board issued its 119 page final decision and order concluding that PRSM
failed to demonstrate that the Master Program violated the SMA.
With respect to the City’s responses to public comments, the Board found that PRSM failed
to meet its burden establishing that the City’s failure to answer all public comments violated RCW
36.70A.140 and WAC 173-26-090. The Board stated that while the statute and rule required the
City to participate and respond to comments, they did not require personal responses to every
individual comment. The Board determined that a “response” to a public comment requires only
that the City take that comment into consideration. AR at 5804. The Board also stated that if it
was error for the City to fail to answer every individual comment, exacting compliance was not
required to uphold the Master Program, citing to RCW 36.70A.140. That statute provides:
Errors in exact compliance with the established program and procedures shall not render the comprehensive land use plan or development regulations invalid if the spirit of the program and procedures is observed.
RCW 36.70A.140.
Next, the Board determined that PRSM failed to carry its burden to show the City did not
adequately justify its decision with scientific support in violation of RCW 90.58.100(1) and
WAC 173-26-201. The Board discussed the studies that the City commissioned, including stating
that the Herrera documents cited current Pacific Northwest marine shoreline analyses.
When analyzing whether the City’s reliance on policy considerations was appropriate, the
Board quoted one of Herrera’s 2011 memoranda that stated, “[I]ts buffer width recommendations
are informed by the City’s desire to limit the number of non-conforming structures therefore,
existing distances to residential structure from the shoreline are considered.” AR at 5824
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(emphasis omitted) (internal quotation marks omitted). But the Board suggested the City’s use of
this policy actually benefited PRSM’s desire for smaller buffers. The Board said, “If the buffer
width decision were to be driven solely by science, the buffers could be much greater.” AR
at 5824. The Board also recognized “there is credible evidence in the record that science would
not support a vegetative buffer of less than 50 feet, the minimum required in the Native Vegetation
Zones of the [former Master Program] for residential designations.” AR at 5824-25.
The Board acknowledged that use of policy considerations was not impermissible under
the SMA, quoting Lake Burien Neighborhood v. City of Burien, which stated, “The SMA process
does incorporate the use of scientific information, but it does so as part of the balancing of a range
of considerations, such as public access, priority uses, and the development goals and aspirations
of the community.” AR at 5825 (quoting No. 13-3-0012, at 11 (Wash. Cent. Puget Sound Growth
Mgmt. Hr’gs Bd. June 16, 2014) (Final Decision & Order)).5 The Board stated that when the City
identifies conflicting science on the range of buffer width recommendations in accordance with
the WAC, buffer widths are a policy decision. The Board found that “the City’s incorporation of
policy as well as science into its buffer width determination does not per se violate the SMA or the
guidelines.” AR at 5825 (emphasis omitted).
In response to PRSM’s argument that the Master Program was not based on reasoned
objective evaluation of the merits of the conflicting scientific data, the Board stated that the City
gave reasoned consideration to opposing science, while building the Master Program around the
consensus science incorporated on the requirements of the guidelines.
5 https://eluho.wa.gov/api/document/file/3568.
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In considering whether the City specifically violated WAC 173-26-201(2)(a), which
requires governments to use scientific and technical information in the program development
process, the Board observed that the City had “certainly” identified “assumptions made
concerning, and data gaps in, the scientific information” when the City received a memo from an
advisory committee acknowledging scientific uncertainties, and the Addendum by Herrera also
expressed the limitations of existing research. AR at 5828 (internal quotation marks omitted). But
the Board determined that the City assembled current scientific data and considered the gaps in
scientific data and uncertainties. The Board concluded that PRSM failed to meet its burden of
proof to establish a violation of WAC 173-26-201(2)(a), and that the City had assembled and
utilized scientific and technical information.
In the end, the Board rejected all of PRSM’s arguments and denied PRSM’s petition.
V. PRSM’S APPEAL
PRSM filed a petition for review of the Board’s final decision and order with the superior
court. In addition to arguing the Board erred, PRSM also argued that the Master Program violated
the unconstitutional conditions doctrine, and was therefore unconstitutional. The superior court
denied PRSM’s petition.
PRSM appeals.
ANALYSIS
PRSM challenges the City’s Master Program and the Board’s decision to uphold it with
two main arguments. First, PRSM challenges the Master Program’s shoreline buffers by arguing
the City wrongfully used the “precautionary principle” without first making the required record,
the City based the buffers on a net improvement standard without making the required record, and
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the City failed to respond to public comments about the buffers. Second, PRSM makes a facial
constitutional challenge to the shoreline buffers. We reject both arguments.
I. LEGAL PRINCIPLES
On a petition for judicial review of a growth board decision, we apply the standards of the
APA. King County v. Cent. Puget Sound Growth Mgmt. Hr’gs Bd. (King County 1), 142 Wn.2d
543, 552, 14 P.3d 133 (2000). We review the board’s decision, not the decision of the superior
court. Id. at 553. Under the APA, we will only grant relief from an agency’s adjudicative order if
it fails to meet any of the nine standards from RCW 34.05.570(3). Lewis County. v. W. Wash.
Growth Mgmt. Hr’gs Bd., 157 Wn.2d 488, 498, 139 P.3d 1096 (2006).
Here, PRSM asserts that five of the nine standards of RCW 34.05.570(3) apply:
(a) The order, or the statute or rule on which the order is based, is in violation of constitutional provisions on its face or as applied; (b) The order is outside the statutory authority or jurisdiction of the agency conferred by any provision of law;6 .... (d) The agency has erroneously interpreted or applied the law; (e) The order is not supported by evidence that is substantial when viewed in light of the whole record before the court, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this chapter;
6 Although PRSM lists RCW 34.05.570(3)(b) (order is outside the statutory authority or jurisdiction of the agency) as a ground for relief in this case, it does not offer any citations to authority or the record to show that this ground for relief applies. PRSM additionally fails to mention RCW 34.05.570(3)(b) or explain how it applies after initially mentioning that it is one of the five grounds for relief that are applicable in this case. We do not consider arguments that are unsupported by citations to authority or the record. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (failure to provide argument and citation to authority in support of an assignment of error precludes appellate consideration under RAP 10.3(a)). We do not further consider this ground.
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.... (i) The order is arbitrary or capricious.
RCW 34.05.570(3). Under the APA, the party asserting invalidity of a growth board decision has
the burden of proving the invalidity. RCW 34.05.570(1)(a); King County 1, 142 Wn.2d at 553.
Invalidity challenges under RCW 34.05.570(3)(d) regarding whether the agency
erroneously interpreted or applied the law are reviewed de novo. City of Redmond v. Cent. Puget
Sound Growth Mgmt. Hr’gs Bd., 136 Wn.2d 38, 46, 959 P.2d 1091 (1998). Deference is given to
the agency’s interpretation of the law “where the agency has specialized expertise in dealing with
such issues, but we are not bound by an agency’s interpretation of a statute.” Id. at 46.
“In reviewing agency findings under RCW 34.05.570(3)(e), substantial evidence is ‘a
sufficient quantity of evidence to persuade a fair-minded person of the truth or correctness of the
order.’ ” Id. (quoting Callecod v. Wash. State Patrol, 84 Wn. App. 663, 673, 929 P.2d 510, review
denied, 132 Wn.2d 1004 (1997)). We view the evidence in the light most favorable to the party
who prevailed before the board, and give deference to the board’s factual findings. Olympic
Stewardship Found. v. Env’t. & Land Use Hr’gs Office ex rel. W. Wash. Growth Mgmt. Hr’gs Bd.
(OSF), 199 Wn. App. 668, 710, 399 P.3d 562 (2017), review denied, 189 Wn.2d 1040, cert. denied,
139 S. Ct. 81 (2018).
For challenges under RCW 34.05.570(3)(i), “arbitrary and capricious” means “ ‘willful and
unreasoning action, taken without regard to or consideration of the facts and circumstances
surrounding the action.’ ” City of Redmond, 136 Wn.2d at 46-47 (quoting Kendall v. Douglas,
Grant, Lincoln & Okanogan Counties Pub. Hosp. Dist. No. 6, 118 Wn.2d 1, 14, 820 P.2d 497
(1991)). “ ‘Where there is room for two opinions, an action taken after due consideration is not
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arbitrary and capricious even though a reviewing court may believe it to be erroneous.’ ” Id. at 47
(quoting Kendall, 118 Wn.2d at 14).
II. PRECAUTIONARY PRINCIPLE
PRSM argues that the City failed to create a record sufficient to support the City’s alleged
use of the precautionary principle. The City responds that PRSM did not sufficiently raise this
issue related to the precautionary principle below and is now precluded from raising the issue on
appeal. We agree with the City.
The “precautionary principle” originates from WAC 173-26-201(3)(g), which states:
As a general rule, the less known about existing resources, the more protective shoreline master program provisions should be to avoid unanticipated impacts to shoreline resources. If there is a question about the extent or condition of an existing ecological resource, then the master program provisions shall be sufficient to reasonably assure that the resource is protected in a manner consistent with the policies of these guidelines.
Under the APA, issues not raised to the Board may generally not be raised for the first time
on appeal. RCW 34.05.554(1); see also Kitsap All. of Prop. Owners v. Cent. Puget Sound Growth
Mgmt. Hr’gs Bd. (KAPO), 160 Wn. App. 250, 271-72, 255 P.3d 696, review denied, 171 Wn.2d
1030 (2011), cert. denied, 566 U.S. 904 (2012). New issues may only be raised if they fall under
a statutory exception. RCW 34.05.554; see also US W. Commc’ns, Inc. v. Wash. Utils. & Transp.
Comm’n, 134 Wn.2d 48, 72, 949 P.2d 1321 (1997).
“In order for an issue to be properly raised before an administrative agency, there must be
more than simply a hint or a slight reference to the issue in the record.” King County v. Boundary
Rev. Bd. for King County (King County 2), 122 Wn.2d 648, 670, 860 P.2d 1024 (1993).
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The City argues that PRSM did not argue to the Board below that the City improperly
relied on the precautionary principle as part of PRSM’s insufficient record argument to establish
shoreline buffers, and therefore cannot do so now. PRSM responds, essentially, that it got close
enough; PRSM asserts that it argued below that the City relied on “policy unrelated to science”
and that this argument sufficiently covers the precautionary principle. Appellant’s Reply Br. at 8.
Here, neither the phrase “precautionary principle” nor WAC 173-26-201(3)(g) ever appear
in PRSM’s petition for review, amended petition for review, or prehearing brief to the Board.
PRSM, however, argues this omission is not dispositive. It asserts its arguments below were
sufficiently linked to the precautionary principle, pointing to its allegations that the City did not
identify and assemble the most current, accurate, and complete scientific and technical information available . . . . In particular, the City’s failure in regard to technical and scientific information are evident in regard to: .... c. The fact that the buffers selected were not driven by science-based information but the City policy unrelated to science.
AR at 580 (emphasis added). PRSM also argues that its prehearing brief to the Board sufficiently
described the City’s reliance on the precautionary principle in several places. PRSM asserts that
its brief “argued that the City had imposed oversized buffers based, not on science, but on its
preference for providing more protection to the shoreline than is strictly necessary to mitigate for
the minimal impacts of residential use.” Appellant’s Reply Br. at 9. Additionally, PRSM argued
in its prehearing brief to the Board that the buffers were oversized to excessively improve the
ecological functions and “did not appear to have any scientific basis.” AR at 3708. These
arguments, according to PRSM, focus on the legal standards for invoking the precautionary
principle.
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PRSM’s position is unpersuasive. At no point did PRSM’s “policy” argument below
resemble a complaint related to the precautionary principle. The policy PRSM identified below
was the City’s basing buffer widths on “existing distances to residential structures from the
shoreline . . . .” AR at 3708. The City’s improper policy was that the buffers were “based on
ensuring that residential structures would be nonconforming.” AR at 3708.
Any argument to the Board about the precautionary principle would have required PRSM
to allege some iteration of an argument related to insufficient science—essentially that the City
was overly conservative with its shoreline buffers because of the absence of sufficient science or,
perhaps, that the City made long-term buffer decisions based on the temporary insufficiency of the
science without committing to updating the science. But these were not the arguments PRSM
made below. Whether or not structures that existed on the shoreline would conform to the Master
Program requirements is not a consideration related to the precautionary principle.
Simply put, because PRSM’s prehearing brief to the Board argued that the improper policy
consideration was one unrelated to the precautionary principle, PRSM’s reference to the use of
“policy unrelated to science” falls short of even hinting to, or slightly referencing, the
precautionary principle. Arguing that the buffers were based on policy, not science, is not the
same as arguing that the buffers were implemented because the City either had, or disingenuously
blamed, insufficient science. Even aside from the fact that words “precautionary principle” did
not appear in PRSM’s briefs to the Board, PRSM never made arguments that describe the
precautionary principle generally.
To preserve an argument for appeal to this court, PRSM was required to raise the argument
to the Board or fit into a statutory exception (and PRSM does not argue that the City’s alleged use
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of the precautionary principle may be challenged under a statutory exception). Accordingly,
because PRSM did not argue that the City improperly relied on the precautionary principle to the
Board, it is precluded from making this argument now. See RCW 34.05.554(1).
III. NO NET LOSS
PRSM also argues that the City did not create the required record to justify departing from
the “no net loss” standard to instead achieve “net ecosystem improvement.” Appellant’s Opening
Br. at 47. PRSM argues the City cannot justify its focus on shoreline improvement at the expense
of development because that would violate the SMA’s more modest goal of prevention of net
ecological loss.7 PRSM appears to challenge the Board’s decisions on this issue by alleging
invalidity through RCW 34.05.570(3)(d), (e), and (i). We affirm the Board’s decisions on this
issue.
The concept of “no net loss” is found throughout the SMA; one representative reference is
found in WAC 173-26-201(2)(c). This section states, “Master programs shall contain policies and
regulations that assure, at minimum, no net loss of ecological functions necessary to sustain
shoreline natural resources.” WAC 173-26-201(2)(c) (emphasis added). WAC 173-26-201(2)(f)
further states, “[M]aster program provisions should be designed to achieve overall improvements
7 Like the precautionary principle, the City argues PRSM did not preserve this issue before the Board by alleging a departure from a no net loss standard below. However, unlike the precautionary principle, PRSM did make reference to this issue below. It argued in its prehearing brief to the Board that, in establishing shoreline buffer widths, “the City’s strategy [was] to improve the ecological functions within the current residential development pattern.” AR at 3708 (emphasis omitted) (internal quotation marks omitted). PRSM further stated that the shoreline buffers “must be used to achieve the goal of ‘no net loss,’ not improvement which would be a benefit to the public at large.” AR at 3708. PRSM’s statements in its brief are more than a hint or slight reference to the City’s alleged departure from the no net loss standard, thereby preserving this issue for appeal. King County 2, 122 Wn.2d at 670.
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in shoreline ecological functions over time, when compared to the status upon adoption of the
master program.” (Emphasis added).
The no net loss concept implicates the process for using scientific and technical information
during the development of a master program. A description of this process is found in
WAC 173-26-201(2)(a), which requires the local government to:
First, identify and assemble the most current, accurate, and complete scientific and technical information available that is applicable to the issues of concern. The context, scope, magnitude, significance, and potential limitations of the scientific information should be considered. At a minimum, make use of and, where applicable, incorporate all available scientific information, aerial photography, inventory data, technical assistance materials, manuals and services from reliable sources of science. . . . .... Second, base master program provisions on an analysis incorporating the most current, accurate, and complete scientific or technical information available. Local governments should be prepared to identify the following: (i) Scientific information and management recommendations on which the master program provisions are based; (ii) Assumptions made concerning, and data gaps in, the scientific information; and (iii) Risks to ecological functions associated with master program provisions. Address potential risks as described in WAC 173-26-201 (3)(d). . . . . . . Where information collected by or provided to local governments conflicts or is inconsistent, the local government shall base master program provisions on a reasoned, objective evaluation of the relative merits of the conflicting data.
A. RCW 34.05.570(3)(d)—ERRONEOUS INTERPRETATION OR APPLICATION OF THE LAW
PRSM argues that we should grant relief under RCW 35.05.570(3)(d) because the Board
erred when it affirmed the City’s implementation of shoreline buffer widths that would improve
the shoreline without first creating the necessary record. In its prehearing brief to the Board, PRSM
argued that Zone 2 of the shoreline was unsupported by science, and the City implemented a net
improvement standard in establishing the Zone 2 buffers.
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In its order, the Board generally determined that the City fulfilled the requirements of
WAC 173-26-102(2)(a) that the City assemble the current scientific data and assess its
uncertainties. In another part of its analysis, the Board stated the City properly relied on both
science and policy when establishing the shoreline buffers. Because the rule fundamentally
requires that the City “[f]irst[] identify and assemble the most current, accurate, and complete
scientific . . . information available,” and second “base [the] master program” on that scientific
information, the Board did not err in its interpretation of WAC 173-26-201(2)(a).
While the Board did not specifically address the alleged application of a net improvement
standard, the Board did recognize that the science would have supported larger buffers, up to
1,969 feet in width.8 The science that guided the creation of the buffer widths included
recommended buffer widths for at least 80 percent buffer effectiveness, with one suggestion
reaching 1,969 feet. The City’s buffers for both Zones 1 and 2 were within the recommendations
8 Following our questioning at oral argument about the Board’s statements regarding the scientific support for the size of the buffers, PRSM moved to provide supplemental briefing, claiming that these statements were not argued by either party in their initial briefing and unfairly constitute a new issue. PRSM appears to be concerned that this language from the Board raises the question of whether the existing required widths of the buffers satisfy the no net loss requirements of the SMA—an issue PRSM claims was not raised by the parties in this appeal. We agree that whether the current size of the buffers satisfy the no net loss requirements of the SMA is not before us. Therefore, we had no need for additional briefing from the parties.
But we disagree that the Board’s statements are not relevant to our present analysis. PRSM argued to the Board that the City’s alleged failure to sufficiently develop its record was because the City used policy instead of science. This argument is the foundation of PRSM’s current challenge of whether the record supports the alleged implementation of a net improvement standard. The evidentiary record and the Board’s related discussion, which prompted our questions at oral argument, are therefore, clearly relevant to PRSM’s arguments in this appeal.
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of the scientific literature, and the Board stated that the buffers were reduced to smaller than the
science would have supported.
If the buffers were smaller than the science would have supported to maintain the
ecological functions at 2011 standards, it follows that the buffers were not designed to overly
improve the shoreline, meaning a net improvement standard was not implemented as PRSM
suggests. Because the City did not improperly apply the net improvement standard, the Board
could not have erred in its application of the law on the basis PRSM asserts when the Board
determined the City did not violate the law. PRSM fails to meet its burden under RCW
34.05.570(3)(d).
B. RCW 34.05.570(3)(e)—SUPPORTED BY SUBSTANTIAL EVIDENCE
PRSM also asserts that it may be granted relief under RCW 34.05.570(3)(e) because the
Board’s order was not supported by substantial evidence. The Board identified that the City
appropriately relied on the science from its multiple studies in making its determinations about the
size and scope of the buffers. Herrera specifically suggested the shoreline buffers that the City
adopted, and the Board identified that the scientific literature would have supported larger buffers
than the Master Program includes. Because Herrera compiled literature that suggested buffers
larger than the existing buffers to achieve at least 80 percent buffer effectivity, the bulk of the
evidence disproves PRSM’s allegation that the City applied a net improvement standard. When
viewed in the light most favorable to the City as the prevailing party, the Board’s order is supported
by substantial evidence. PRSM fails to meet its burden that the Board’s order was not supported
by substantial evidence.
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C. RCW 34.05.570(3)(i)—ARBITRARY OR CAPRICIOUS
PRSM also argues that they may be granted relief because the Board’s order was arbitrary
and capricious under RCW 34.05.570(3)(i). The analysis above shows that the Board relied on
evidence in the record and applied that evidence to the law. Because the Board relied on evidence
in the record to make its decision and issue its order, the Board did not act willful and unreasoned
without regard to, or consideration of, the facts and circumstances surrounding the action. Its order
was therefore not arbitrary and capricious.
IV. RESPONSE TO PUBLIC COMMENTS
PRSM next complains about the City’s alleged failure to respond to public comments about
the precautionary principle. Below, the Board determined that the City did not violate the SMA
when it did not answer all of the public comments. Like its other challenges to the Board’s
decision, PRSM appears to argue that this decision from Board’s order violates RCW
34.05.570(3)(d), (e), and (i). The City responds that the Board accurately determined that the City
was not required to answer all public comments individually.9 We agree with the City.
The SMA imposes an obligation to involve the pubic in the development of a shorelines
master program. RCW 90.58.130 states:
To insure that all persons and entities having an interest in the guidelines and master programs developed under this chapter are provided with a full opportunity for involvement in both their development and implementation, the department and local governments shall:
(1) Make reasonable efforts to inform the people of the state about the shoreline management program of this chapter and in the performance of the responsibilities provided in this chapter, shall not only invite but actively encourage participation
9 The City also responds that while PRSM did argue to the Board that the City failed to adequately respond to comments, PRSM never tied this argument to the precautionary principle.
22 No. 56808-0-II
by all persons and private groups and entities showing an interest in shoreline management programs of this chapter; and
(2) Invite and encourage participation by all agencies of federal, state, and local government, including municipal and public corporations, having interests or responsibilities relating to the shorelines of the state. State and local agencies are directed to participate fully to insure that their interests are fully considered by the department and local governments.
RCW 90.58.130 (emphasis added).
This obligation for local governments to engage and encourage public participation in the
SMA process is further explained in WAC 173-26-090(3)(a), which states:
(i) In conducting the periodic review, the department and local governments, pursuant to RCW 90.58.130, shall make all reasonable efforts to inform, fully involve and encourage participation of all interested persons and private entities, tribes, and agencies of the federal, state or local government having interests and responsibilities relating to shorelines of the state and the local master program. . . . (ii) Counties and cities shall establish and broadly disseminate to the public a public participation program identifying procedures whereby review of the shoreline master program will be considered by the local governing body consistent with RCW 36.70A.140. Such procedures shall provide for early and continuous public participation through broad dissemination of informative materials, proposals and alternatives, opportunity for written comments, public meetings after effective notice, provision for open discussion, and consideration of and response to public comments.
(Emphasis added).
A. RCW 34.05.570(3)(d)—ERRONEOUS INTERPRETATION OR APPLICATION OF THE LAW
PRSM asserts that we should grant relief under RCW 34.05.570(3)(d) because the Board
misinterpreted and misapplied these public participation obligations when it decided the City did
not need to answer every public comment. The Board determined that PRSM “failed to carry its
burden of demonstrating the City’s ‘consideration of and response to public comments’ violated
SMA or GMA requirements.” AR at 5805 (quoting WAC 173-26-090(3)). The Board determined
23 No. 56808-0-II
that the City did not violate RCW 90.58.130 or WAC 173-26-090 because neither required that
the City answer every individual public comment, they only require the City to respond to
comments. The Board recognized that a response to a comment “does not require accepting or
agreeing with them — only taking them into consideration.” AR at 5804. Further, the City actually
answered the majority of comments it received.
RCW 90.58.130, on its face, does not require the City to respond to comments. It requires
only that the City make reasonable efforts to inform the public and invite and encourage
participation. The Board did not err in its interpretation of this statute because it correctly
determined that the statute did not require individual answers to every public comment.
WAC 173-26-090(3)(a), however, does require that the City consider and respond to public
comments when it states, “Such procedures shall provide for . . . response to public comments.”
While this creates a general obligation for the City to respond to comments, the rule stops short of
requiring the City to provide an answer to every individual comment. The Board determined that
reacting in response to a comment meant that the City consider the argument, and it may choose
to answer the comment. We determine this is a reasonable construction of the rule. It recognizes
the importance the legislature placed upon public participation, but it does not impose an
unreasonably onerous obligation to individually answer, as in this case, over 1,600 comments. The
Board did not err in its application of this rule because it correctly determined that the rule does
not require the City to answer every comment and a response by the City does not specifically
require an answer. PRSM fails to meet its burden to show the Board erred in its interpretation or
application of the law.
24 No. 56808-0-II
PRSM also asserts that we should grant relief because the Board’s order was not supported
by substantial evidence when it determined the City did not violate the relevant statutes. As stated
above, the record shows that the City answered the vast majority of comments submitted to both
it and Ecology. The City received over 1,600 individual comments and answered almost all of
them, even when comments were duplicative. The City also answered the comments made to
Ecology. Moreover, as noted above, the City was not required to answer every comment. Because
the City responded to nearly all of the comments with answers when they were not required to
answer every individual comment, there is substantial evidence to support the Board’s order on
this issue. PRSM fails to meet its burden to show that the Board’s order was not supported by
substantial evidence.
Additionally, the PRSM argues that the Board’s order was arbitrary or capricious when it
determined the City’s failure to answer all comments did not violate the relevant laws. Because
the Board considered that the City responded to comments and was not required to answer each
one, the Board considered the facts of this case and did not act willful and unreasoned in disregard
of these facts. Therefore, the Board’s order was not arbitrary and capricious, and PRSM fails to
meet its burden for us to grant relief.
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V. UNCONSTITUTIONAL CONDITIONS
Outside of its challenge to the Board’s order, PRSM makes a constitutional challenge to
the shoreline buffers in the City’s Master Program.10 PRSM argues that the shoreline buffers in
the Master Program violate the doctrine of unconstitutional conditions because they do not pass
the nexus and proportionality tests. Ecology and the City argue that the Master Program passes
the nexus and proportionality tests when the City relied on the best available science. We agree
with the City.
Constitutional challenges are questions of law that are reviewed de novo. OSF, 199 Wn.
App. at 710. We have previously determined that for constitutional challenges to a master program
under the SMA, the party asserting invalidity “bears the burden of proving its unconstitutionality
beyond a reasonable doubt.” Id.
Under the doctrine of unconstitutional conditions, “the government may not require a
person to give up a constitutional right . . . in exchange for a discretionary benefit . . . .” Dolan v.
City of Tigard, 512 U.S. 374, 385, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994). The Dolan and
Nollan cases involve a specific application of the unconstitutional conditions doctrine. Dolan, 512
U.S. 374; Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987).
Dolan and Nollan stand for the proposition that the government may not condition approval of a
land-use permit on the owner’s relinquishment of a portion of his property unless there is a nexus
and rough proportionality between the government’s demand and the effects of the proposed land
10 PRSM’s unconstitutional conditions argument is outside of its challenge of the Board’s order because the Board did not have the authority to decide constitutional issues and did not decide the issue. Bayfield Res. Co. v. W. Wash. Growth Mgmt. Hr’gs Bd., 158 Wn. App. 866, 880-81, 244 P.3d 412 (2010).
26 No. 56808-0-II
use. Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595, 599, 133 S. Ct. 2586, 186 L. Ed.
2d 697 (2013).
Nollan and Dolan set forth the nexus and rough proportionality tests that the regulation
must pass to be constitutional under the unconstitutional conditions doctrine. Nollan, 483 U.S. at
837; Dolan, 512 U.S. at 391. The nexus test permits only those conditions necessary to mitigate
a specific adverse impact of a proposal. KAPO, 160 Wn. App. at 272 (citing Nollan, 483 U.S.
825). The rough proportionality test limits the extent of required mitigation measures to those that
are roughly proportional to the impact they are designed to mitigate. KAPO, 160 Wn. App. at 272-
73 (citing Dolan, 512 U.S. 374).
However, Nollan and Dolan involved as-applied challenges to regulations that
implemented conditional requirements for permit approvals. See Nollan, 483 U.S. at 831-32;
Dolan, 512 U.S. at 391. In the context of a facial challenge to a land use ordinance, the ordinance
“must comply with the nexus and rough proportionality limits the United States Supreme Court
has placed on governmental authority to impose conditions on development applications.”
Honesty in Env’t. Analysis & Legis. v. Cent. Puget Sound Growth Mgmt. Hr’gs Bd. (HEAL), 96
Wn. App. 522, 533, 979 P.2d 864 (1999) (plaintiffs made a facial challenge to the Growth
Management Act (GMA)) (footnotes omitted).
The SMA requires the use of a “reasoned, objective evaluation” of the scientific and
technical information when creating master programs. WAC 173-26-201(2)(a). This is analogous
to the requirement found in the GMA to use the “best available science” to set the general
requirements in land use ordinances. RCW 36.70A.172(1). When it is shown that the local
government meets this standard, the nexus and rough proportionality tests are generally satisfied.
27 No. 56808-0-II
KAPO, 160 Wn. App. at 273. “If a local government fails to incorporate, or otherwise ignores the
best available science, its policies and regulations may well serve as the basis for conditions and
denials that are constitutionally prohibited.” HEAL, 96 Wn. App. at 533. Use of the best available
science is “generally interpreted to require local governments to analyze valid scientific
information in a reasoned process.” KAPO, 160 Wn. App. at 267. “If the local government used
the best available science in adopting its critical areas regulations [under the GMA], the permit
decisions it bases on those regulations will satisfy the nexus and rough proportionality rules.” Id.
at 273. Similarly, we determine that meeting the SMA’s requirement for a reasoned, objective
evaluation of the scientific and technical information satisfies the nexus and proportionality tests.
PRSM is making a facial challenge to the Master Program specific to the shoreline buffers.
The parties appear to agree that the nexus and proportionality tests apply to this facial challenge
of the Master Program. PRSM argues that the Master Program does not meet the nexus and
proportionality tests because the Master Program does not require identification of anticipated
development impacts of ecological conditions and the City set general default buffers based on
mere assumptions of shoreline conditions.
Here, the City assembled an extensive scientific record supporting the Master Program and
the shoreline buffers. This record included the following items: Bainbridge Island Nearshore
Assessment; Nearshore Habitat Characterization; the Bainbridge Island Current and Historic
Coastal Geomorphic/Feeder Bluff Mapping; the Addendum; Memorandum re: Documentation of
Marine Shoreline Buffer Recommendation Discussions; Memorandum re: Clarification on Herrera
August 11, 2011 Documentation of Marine Shoreline Buffer Recommendation Discussions
28 No. 56808-0-II
Memo; and the Cumulative Impacts Analysis for City of Bainbridge Island’s Shoreline: Puget
Sound.
The studies cited by the City documented the conditions and ecological functions of the
Bainbridge Island shoreline. The studies also showed the anticipated impacts of anticipated
development on the existing conditions of the shoreline. The studies additionally made detailed
recommendations for shoreline regulations, including the shoreline buffers that were adopted by
the City, to ensure that the impacts of development would be mitigated and no net loss of shoreline
ecological functions would occur.
The City has shown that the Master Program relied on the valid scientific information to
establish the shoreline buffers because it implemented the buffers suggested by Herrera and the
buffers were based on the science.11 Because the City relied on extensive scientific research, we
conclude that it used a reasoned, objective analysis of the science to create the Master Program.
See KAPO, 160 Wn. App. at 270.
This is fatal to PRSM’s facial challenge. Just like using the best available science satisfies
the nexus and rough proportionality tests in GMA cases, the use of a reasoned, objective analysis
of the science is sufficient to pass the nexus and rough proportionality tests in SMA cases. The
Master Program passes these nexus and proportionality tests because the City relied on multiple
11 The determination that the Master Program was based on science does not conflict with the Board’s conclusion that the City appropriately used both science and policy to create the shoreline buffers. To fail the nexus and proportionality tests, the buffer widths would need to be in excess of what the science would allow. Because the Board determined that the science alone would have supported larger buffers, the Board’s analysis does not contradict our determination that the City used a reasoned, objective analysis.
29 No. 56808-0-II
scientific studies when establishing the shoreline buffer widths. See KAPO, 160 Wn. App.
at 273-74.
Because the Master Program passes the nexus and proportionality tests, PRSM has not met
its burden to show that the Master Program’s shoreline buffers violate the doctrine of
unconstitutional conditions.
CONCLUSION
We affirm the superior court’s order determining that the City’s Master Program comports
with the SMA.
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.
PRICE, J. We concur:
WORSWICK, J.P.T.
VELJACIC, J.