Opinion
No. 64326-6-I.
Filed: January 31, 2011.
Appeal from a judgment of the Superior Court for San Juan County, No. 08-2-05185-5, John O. Linde, J., entered October 2, 2009.
Affirmed by unpublished opinion per Appelwick, J., concurred in by Grosse and Lau, J J.
Hughes applied for and was eventually granted a permit from San Juan County to build a single-family residential dock on his Pearl Island property. Friends of the San Juans appealed the permit to the Shorelines Hearings Board, which overturned the County's permit issuance, denying Hughes the right to build the dock. The superior court reversed the Board, and Friends of the San Juans appeals from that ruling, arguing that the Board's conclusions were correct and the superior court was in error. We hold that the Board's decision to overturn the permit issued by the County was based on erroneous interpretation and application of the law and was not supported by substantial evidence. We reverse the Board's decision and reinstate Hughes's permit.
FACTS
Pearl Island is located north of San Juan Island, near the port town of Roche Harbor. It has 44 residential lots arrayed around its exterior such that each lot is on the waterfront. One lot on the east side of the island, lot 22, is a common area, used as a barge docking site when residents need to bring equipment and materials to the island. A private hauling company will schedule barge service from Roche Harbor to Pearl Island when the tide is sufficiently high, for approximately $200 dollars an hour. The middle of the island is a community held easement, a utility road running west from the barge landing site across the length of the island. There are no automobiles on Pearl Island. It also has no airport or landing strip, no ferry service, and no public dock. San Juan County (County) now requires that new subdivisions with shoreline frontage provide a shared community dock instead of individual docks, but Pearl Island was subdivided in 1964 before this requirement arose. San Juan County Code (SJCC) 18.50.190(G)(1).
Chris Hughes's family has owned property on Pearl Island for about 40 years, and he has been spending time there since he was young. He now owns a lot on the western edge of the island. There are currently 11 private docks on Pearl Island, each providing access to one or more lots. The only property owners on Pearl Island who do not currently enjoy dock access live on the western portion of the north facing side of the island, where the beach is too shallow to permit a dock, and residents can walk across to nearby Posey Island at low tide. Hughes enjoys no reliable right of joint use with an owner of an existing dock, although his brother's property on the eastern side of Pearl Island has a dock that Hughes has been granted access to during the winter months.
In 2005, Hughes contacted a neighbor on an adjoining property with a dock to see if that neighbor would be willing to share access to the existing dock. He was refused. He also contacted another adjacent neighbor, seeking a joint user to share his proposed dock, but was also refused. In August 2005, Hughes submitted his application for a shoreline substantial development permit for a single-user dock on his property.
There is a near shore eelgrass bed that grows along most of Pearl Island's shoreline. Eelgrass is a critical habitat conservation area under SJCC 18.30.160(A)(5)(a). Hughes's proposed dock would extend over eelgrass beds. There is conflicting testimony from the parties' respective witnesses about what impact Hughes's dock would have on the eelgrass. Washington Department of Fish and Wildlife (WDFW) Area Habitat Biologist Brian Williams testified that he believed the impact to the eelgrass would be minimal, due to on-site design mitigation. In light of the potential for some impact, however, and to "cover our bases", Mr. Williams required that Hughes add an approved mitigation plan and provide for monitoring of the site following construction to ensure that any impact would be minimized and mitigated.
On March 3, 2006, the San Juan County Hearing Examiner (Hearing Examiner) denied Hughes's permit application. Hughes appealed the ruling to the Shorelines Hearings Board (Board), and while the appeal was pending, Hughes and the County reached a settlement agreement. Under the agreement, Hughes was required to do three things: reduce the designed size of the dock to a total of 557 square feet; obtain a building permit for a single-family residence on the upland portion of his property; and pursue an off-site eelgrass mitigation plan in accordance with the WDFW. Hughes completed the three requirements of the settlement.
First, his dock was designed to be 543 square feet. It was designed as part of an experimental dock program through the Washington State Department of Fish and Wildlife (WDFW) that emphasized minimizing any adverse impacts on marine vegetation. The Board found that "Hughes has endeavored to design a dock that will minimize the loss of eelgrass at the site." While the WDFW program has since been discontinued, the Board concedes that Hughes's dock remains as favorable to the environment as possible. For example, the dock's float would be oriented north-south to minimize shading of the existing eelgrass, and a total of 75 percent of the dock's total area would be constructed of light penetrating grating material. Hughes also agreed to seasonally remove the float and store it at Roche Harbor during the winter months.
Second, on May 21, 2008, Hughes applied for and later received a single-family residence building permit before the time of his July 2008 hearings with the Board.
And third, Hughes had undertaken an off-site mitigation plan, pursuant to SJCC 18.30.160(D). The Hearing Examiner approved of the parties' use of an off-site mitigation plan and directed Hughes to engage an outside expert to evaluate the effectiveness of the plan. Hughes commissioned Fairbanks Environmental Services, and the plan was then evaluated and approved by WDFW. It involved removing an antiquated buoy that had scoured and damaged an eelgrass bed approximately 1.3 miles to the south of Hughes's property, off of Henry Island. The off-site mitigation plan met with approval both by WDFW and by the San Juan County Community Development and Planning Department, which agreed to issue Hughes's permit upon completion of the mitigation. Hughes could proceed with his dock once the eelgrass bed at the off-site mitigation area had recovered to 60 percent of the density of the unscoured bed in the immediate vicinity, and the plan would be deemed "successful" when the eelgrass bed had recovered to 80 percent of the density of the control group. By June 2008, Fairbanks Environmental had surveyed the results of the mitigation near Henry Island and determined that the eelgrass beds had recovered and the mitigation was successful.
In February 2008, Hughes received his shoreline substantial development permit, and Friends of the San Juans (FOSJ) timely appealed to the Board. On August 25, 2008, the Board issued its findings of facts, conclusions of law, and order (Order) reversing the issuance of Hughes's permit. Hughes then appealed the Board's decision to the San Juan County Superior Court. On October 2, 2009, the superior court reversed the Board's decision, finding: that the Board had erroneously interpreted the law as provided in the County's Shoreline Master Program (SMP), chapter 18.5 SJCC, and the State's Shoreline Management Act of 1971 (SMA), chapter 90.58 RCW; that the Board's action was arbitrary and capricious; and that its conclusions were not supported by substantial evidence. Hughes permit was reinstated. FOSJ then appealed the superior court's order.
DISCUSSION
I. Standard of Review
The Administrative Procedure Act, chapter 34.05 RCW, governs our review of the Board's decision. Pres. Our Islands v. Shorelines Hearings Bd., 133 Wn. App 503, 514-15, 137 P.3d 31 (2006). Appellate review is of the Board's decision, not the decision of the local government or the superior court, and judicial review of the Board's decision is limited to the record before the Board. Buechel v. Dep't of Ecology, 125 Wn.2d 196, 202, 884 P.2d 910 (1994). While we do not review the trial court decision, we do note that the superior court properly analyzed the legal issues before it. The late Judge John O. Linde, of San Juan County Superior Court, drafted a thoughtful and well reasoned letter opinion reversing the Board. While our review is of the Board's decision and the record before the Board, this opinion will to a certain extent mirror Judge Linde's.
Under RCW 34.05.574, the reviewing court may "(a) affirm the agency action or (b) order an agency to take action required by law, order an agency to exercise discretion required by law, set aside [an] agency action, enjoin or stay the agency action, remand the matter for further proceedings, or enter a declaratory judgment order." A party wishing to appeal an order from the Board may do so based on nine different grounds under RCW 34.05.570(3), including (d) erroneous interpretation or application of the law and (e) lack of substantial evidence. The appealing party bears the burden of demonstrating the invalidity of the Board's actions. Pres. Our Islands, 133 Wn. App at 515.
Under the clearly erroneous standard, the Board's decision may be reversed when the reviewing court is definitely and firmly convinced that a mistake has been made in light of the policies of the SMA. RCW 34.05.570(3)(d); Buechel, 125 Wn.2d at 202. And, under RCW 34.05.570(3)(e), we determine whether substantial evidence supports the Board's order when viewed in light of the whole record before the Board. Jefferson County v. Seattle Yacht Club, 73 Wn. App 576, 588, 870 P.2d 987 (1994). Evidence is substantial if it would convince an unprejudiced, thinking mind of the truth of the declared premise. Id.
We review the Board's interpretation of the SMA and local government shoreline regulations de novo, because they involve questions of law. Robertson v. May, 153 Wn. App 57, 73, 218 P.3d 211 (2009). Interpretation of a county's shoreline master program is likewise a question of law. Id. Although an agency's interpretation of the law is not binding, we generally accord deference to the agency's legal conclusions. Id. But, when necessary to ensure that a proposed project complies with the SMA, we may substitute our own judgment for that of the agency. Seattle Yacht Club, 73 Wn. App at 588.
II. Shoreline Regulations
The Washington State Legislature passed the SMA in 1971, enunciating the State's policy to provide for the management of its shorelines by planning for and fostering all "reasonable and appropriate uses." RCW 90.58.020; Buechel, 125 Wn.2d at 203. The policy broadly contemplates protecting against adverse effects to the public health, the land and its vegetation and wildlife, and the waters of the state and their aquatic life, while protecting generally the public right of navigation and corollary rights incidental thereto. Id.
The SMA does not prohibit development of the state's shorelines, but calls instead for "coordinated planning . . . recognizing and protecting private property rights consistent with the public interest." RCW 90.58.020; Nisqually Delta Ass'n v. City of DuPont, 103 Wn.2d 720, 726, 696 P.2d 1222 (1985). Accordingly, alteration of the natural shoreline is permissible in limited instances, with priority given "for single family residences and their appurtenant structures . . . and other improvements facilitating public access to shorelines of the state." RCW 90.58.020. The SMA requires that permitted uses "shall be designed and conducted in a manner to minimize, insofar as practical, any resultant damage to the ecology and environment of the shoreline area and any interference with the public's use of the water." Id. Additionally, the SMA requires local governments to develop regulations called shoreline master programs that govern local shoreline use in conjunction with the SMA. RCW 90.58.080. Any development on the shoreline shall not be undertaken without a permit, and must be consistent both with the SMA policy and the applicable county master program. RCW 90.58.140.
San Juan County passed such a program, codified primarily at chapter 18.50 SJCC. Like the SMA, the SMP has policies and goals that broadly promote preserving the natural character of the County's shorelines and providing for their use in ways that do not needlessly diminish the quality of the shoreline environment. San Juan County Planning Department, Comprehensive Plan: Shoreline Master Program (Comprehensive Plan), 3.2.A. The County specifically addresses environmentally sensitive areas, including fish and wildlife habitat, and requires that the County endeavor to "[p]reserve unique, rare and fragile shoreline resources," and discourage development on shorelines which are identified as sensitive to development or limit their development in a manner to minimize environmental damage. Comprehensive Plan, supra, at 3.4.D.
Much like the SMA, the Comprehensive Plan addresses the challenge of balancing competing interests in the shoreline. This balancing approach yields sometimes apparently contradictory provisions. While the laws emphasize preservation of the natural shorelines, and should be construed broadly to protect them as fully as possible, Buechel, 125 Wn.2d at 203, they also allow for development and protect private property owners' rights to use the shorelines in reasonable and appropriate ways. The SMP directly and specifically addresses the construction of boating facilities including docks, piers, and recreational floats like the one at issue on Hughes's property. SJCC 18.50.190. It provides that all facilities shall be designed to fit with the natural site configuration and to minimize adverse impacts on marine life and the shore process corridor and its operating systems. SJCC 18.50.190(B)(1). Each application for a permit is evaluated based on multiple considerations, including littoral drift, sand movement, water circulation and quality, fish and wildlife, navigation, scenic views, and public access to the shoreline. SJCC 18.50.190(C)(4). The SMP provides a hierarchy of preferences, favoring mooring buoys or moorage floats over docks and piers, and favoring multiple-use facilities and expansion of existing facilities over new construction. SJCC 18.50.190(C)(1)-(3). However, single-family residential docks are permitted, and are expressly provided for: "The maximum dimensions for a dock (including the pier, ramp, and float) associated with a single-family residence shall not exceed 700 total square feet in area. In addition, the length of the dock (including the pier, ramp, and float) may not extend more than 115 feet in length seaward of the ordinary high water mark." SJCC 18.50.190(G)(2)(a).
III. The Board's Conclusions of Law
The Board ultimately concluded in its Order that Hughes's dock was inconsistent with the SMA and the SMP and overturned the granting of his permit. FOSJ argues that the Board's conclusions are supported by substantial evidence, and that the Board correctly interpreted and applied the SMA and the SMP in reaching those conclusions. We disagree. The Board's Order contains conclusions of law in four main sections — A through D — and each of those sections either relies on erroneous interpretations or applications of law or is unsupported by substantial evidence.
A. San Juan County Criteria for Private Docks
The Board concluded that Hughes had other means of accessing his property and failed to thoroughly explore the alternatives. The SMP, in addition to providing for single-family residential docks and limiting their physical specifications, also requires that land-owners seeking such permits demonstrate that there are no alternative facilities or moorage options that would suffice for their purposes:
Applications for nonexempt docks and piers associated with single-family residences shall not be approved until:
a. It can be shown by the applicant that existing facilities are not adequate or feasible for use;
b. Alternative moorage is not adequate or feasible; and
c. The applicant shall have the burden of providing the information requested for in subsections (A) and (B) of this section, and shall provide this information in a manner prescribed by the administrator.
SJCC 18.50.190(G)(5).
There are no existing facilities on Hughes's Pearl Island property. The question then is whether or not Hughes had access to alternative moorage that would have been adequate or feasible. The Board found that such alternative moorage could have come in two different ways. First, the Board suggests that Hughes could share an already existing dock or find other residents without dock access to share in the use of his new proposed dock. Or second, alternatively, the Board suggests Hughes could rely on other means of access to his property besides docking his large boat on Pearl Island. The Board suggests Hughes could regularly use the private barge service, or keep his boat offshore at a buoy and use a dinghy to tender over to his beach. The Board also suggested that Hughes might keep his boat at the dock on his nearby San Juan Island property.
1. Joint Use
The SMP contains a preference for joint-use docks over new construction. SJCC 18.50.190(C)(1). However, the county code does not specify what is required to constitute an appropriate effort at joint use. Hughes testified that he tried to find a joint-use moorage option by asking his neighbors to share in a dock. The evidence before the Board was that he sought a joint-user amongst his neighbors, going down four lots on the north side and five to the south side. He testified that he would be willing to share the use of a neighbor's dock but was unsuccessful in obtaining permission to do so. The Board held that Hughes had not sufficiently exhausted all efforts at joint use. However, as Judge Linde points out, "[t]he evidence is clear that he made a significant effort toward one form or the other of joint use and that [Hughes] did not begin his quest for a dock seeking a single-use[r] dock." No evidence contradicts the unavailability of the docks of the neighbors contacted. Adequacy and feasibility of use must be judged in the context of the use, which is access to the single-family residence. Here, the effort to find joint-use extended four lots one direction and five the other. On this record, Hughes has carried his burden proving that adequate and feasible joint access was not available. On these facts, exhaustion of inquiry into joint-use of every dock on the island is not reasonable. The record does not support the Board's finding that Hughes failed to adequately explore joint-use options.
2. Alternative Moorage
The Board also concluded that Hughes failed to exhaust his non-dock alternatives:
Mr. Hughes has a current personal dock on San Juan Island, near the Roche Harbor Resort, and can quickly access Pearl Island through other means. Access to the island or the property via the barge, or through use of a buoy and small craft, is possible and reasonable. While less convenient than a personal dock off of Lot 23, these options are capable of use and are satisfactory options.
Testimony from Pearl Island residents and the Hearing Examiner did not support this conclusion. The barge landing area, lot 22, is located on the far east side of the island. Odd Fausko, FOSJ's witness and a resident of Pearl Island, testified that lot 22 was approximately two-thirds of a mile away from Hughes's lot on the western tip of the island, or about a 10 minute walk. There are no cars on Pearl Island, and while some residents use golf carts, no one stores either a golf cart or a dinghy at the barge landing area. Hughes also points out that he has no legal right to store a vehicle there, since it is restricted as a "Utility and Park Area." The barge service fee is approximated at $200 per hour. There is also evidence that the landing area, and indeed the east side of the island is, generally, only accessible during certain tides due to inadequate depth and a large rock in front of the landing area. The Board suggests that if landing a dinghy there would not work, Hughes could simply hire the private barge service. Reliance on the barge for tide dependent service is not an adequate alternative, nor does it constitute feasible access. For Hughes, situated on the opposite side of the island, relying on this barge landing area and having to walk the length of the island, particularly with guests, equipment, or supplies in tow, would be neither adequate nor feasible for his regular access.
FOSJ has argued that Hughes could station a buoy off the shore of the island as an alternative to the dock. However, the evidence before the Board was that the Hughes property abuts an extremely busy channel in San Juan county and that it would be too dangerous to put a buoy in front of his property due to the traffic and severe conditions. Hughes contends that even if it were possible to use a buoy, it would still be too dangerous to row a skiff to shore safely. Fausko testified that the channel has devastating boat wakes, and Hughes testified that it "would not be safe in [his] opinion, except for glass calm conditions with no wind or tide, to utilize a buoy on a regular basis for tendering to shore." Hughes also testified that even when he can land a dinghy on his shore, there is nowhere safe to regularly store it due to the rocks. The Hearing Examiner confirmed this, concluding that "to land or store a dinghy along this shore . . . would be impractical." And, the same problems that arise in tendering a dinghy to shore from a buoy-moored larger boat would apply if Hughes relied on tendering to Pearl Island across the channel from his property on San Juan Island. He would still have nowhere to land or store a dinghy.
Hughes carried his burden to demonstrate that alternative mooring options were not safe, adequate, or feasible for his regular use. Under the standard of review, we determine whether substantial evidence supported the Board's decision. Here, in light of the testimony and all the evidence before the Board, its determination that Hughes had other reasonable options was unsupported by substantial evidence.
3. Associated with a Single-Family Residence
Also, under this section, the Board stated that "[l]ot 23 does not qualify for a dock in the first instance because it is not `associated with' a single-family residence." This conclusion is unsupported by the clear and substantial evidence before the Board. The SMP requires "[d]evelopment of a dock on a lot intended for single-family residential purposes shall require a shoreline substantial development permit." SJCC 18.50.190(G)(4). The code, by its plain meaning, allows for building docks that are associated with a single-family residence and does not require that a residence be constructed before a permit may be issued. The evidence before the Board was that Hughes applied for and received a single-family residential building permit to satisfy a requirement of his substantial development permit. Accordingly, Hughes met the county requirements for a single-family residential dock, and this conclusion of law was an erroneous interpretation of the law and unsupported by substantial evidence.
B. Preservation of Ecological Functions/Potential Cumulative Effects
In the second section, the Board expressed its concern over the potential decline of the eelgrass bed. The Board stated:
The evidence was insufficient for the Board to determine with any certainty the extent and long-term consequences of the damage that would result from this particular project. Even the experts before the Board were unsure of the extent of the loss that would occur.
We agree with this characterization of the evidence. However, the Board went on to state:
. . . In the absence of evidence to the contrary, specific to Pearl Island eelgrass beds, the Board concludes that the elimination of eelgrass at the proposed dock site could contribute to the potential decline of the eelgrass bed, which would represent a significant loss of an environmental resource, contrary to the policies expressed in the SMA.
This statement in effect relieved FOSJ of its burden of proving impacts that required denial of the permit, and bases denial on Hughes's failure to disprove a speculative harm. This was legal error under RCW 90.58.140(7) and Buechel, 125 Wn.2d at 205.
The SMA and the SMP require development to minimize, insofar as practical, any damage to the shoreline, and provide for mitigation measures, such that any potential adverse impacts may be avoided, minimized, rectified, lessened, or compensated for. RCW 90.58.20; SJCC 18.30.160(B)(1)(a). The evidence before the Board was that Hughes's design substantially mitigated the adverse effects and was as environmentally favorable as possible. Further, he conducted an off-site eelgrass bed restoration to compensate for any potential impacts. The evidence does not support a conclusion that denial of the permit is warranted based upon the impact of the dock on eelgrass at the site.
Later in the same section, the Board found that there is a danger that the entirety of Pearl Island will be encircled by docks, leading to a dangerous cumulative impact on the natural functioning of the shoreline. Judge Linde clearly stated why this conclusion was not supported by evidence in the record:
The testimony indicates that there are eight lots along the north shore of Pearl Island that have no dock access. All of the other lots, with the exception of [Hughes's] lot, either have joint use or a private dock. Testimony indicated that the eight lots border on shallow waters that could not accommodate a dock, thus indicating that there is little likelihood of any further docks being built on Pearl Island. The eleven docks that currently serve Pearl Island all, to some extent or another, impact the band of eelgrass that surrounds the Island. There was no evidence presented, however, that indicated that those existing docks have caused any significant loss of eelgrass or that an insignificant loss has spread and resulted in a fragmentation of the eelgrass bed. Thus there is no evidence in the record regarding negative cumulative impacts.
We agree with Judge Linde. The Board's conclusion that Hughes's dock would lead to a cumulative impact on the eelgrass bed around Pearl Island was unsupported by substantial evidence.
The Board's conclusion that the SMA policies would be violated, based on its finding that Hughes's dock could have an undetermined, potential impact on eelgrass, was an erroneous application of the law.
C. Off-Site Mitigation
In its third section, the Board erroneously held that Hughes's off-site mitigation plan was not designed in response to any requirements under the SMP, but was pursued only to satisfy the requirements of the hydraulic permit approval process of WDFW. The Board acknowledged that the County's critical areas ordinance required the use of mitigation, and that Hughes's shoreline constituted such a critical area, as an eelgrass bed. SJCC 18.30.160(A)(5)(a). But, the Board went on to erroneously conclude that "the County's critical areas ordinance had not been incorporated into its shoreline master program." The SMP does in fact expressly adopt San Juan's critical areas ordinance, providing that shoreline uses in environmentally sensitive areas "must be located, designed, constructed, and managed in accordance with the applicable requirements of SJCC 18.30.110 through 18.30.160, environmentally sensitive areas." SJCC 18.50.080. These adopted ordinances require individuals seeking shoreline development permits to proceed exactly as Hughes did in this case, first seeking to avoid or minimize, and then seeking to compensate for, any potential impacts:
The proposal must mitigate to the maximum extent feasible any significant adverse impacts to habitat functions and values to habitat buffers. Mitigation actions by an applicant or property owner shall occur in the following preferred sequence . . .:
i. Avoiding the impact by not taking a certain action or parts of actions on that portion of the site which contains the habitat area or its buffer;
ii. Minimizing impacts by limiting the degree or magnitude of the action and its implementation;
iii. Rectifying the impact by repairing, rehabilitating, or restoring the affected environment;
iv. Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action; or
v. Compensating for the impact by replacing or providing substitute resources or environments. This may require preparation of a habitat management plan in accordance with subsection (D) of this section.
SJCC 18.30.160(B)(1)(a)
The provision also requires property owners to make habitat management plans that identify how the impacts of development will be mitigated, contain maps of the relevant sites, and include a report which analyzes any proposed mitigation project. Such plans must contain "[a]n evaluation by the Washington Department of Fish and Wildlife, the Washington Department of Natural Resources, Natural Heritage Program, or a qualified wildlife expert regarding the effectiveness of any proposed mitigating measures or programs, including recommendations as appropriate." SJCC 18.30.160(D)(2)(b). In this case, Hughes spent over a year preparing such a habitat management plan and did so with the guidance, evaluation, and approval of WDFW's habitat biologist. Hughes provided follow-up reports, including an evaluation by WDFW, and Hughes demonstrated that the off-site mitigation was successful. Hughes followed the preferred sequence by minimizing the impact of his dock and compensating for the impact at a different nearby site, in accordance with a habitat management plan. SJCC 18.30.160(B)(1)(a). And, Hughes's mitigation ultimately met with approval from the WDFW, the County, and the Hearing Examiner, as demonstrated by the award of Hughes's permit.
The Board acknowledged that it had no standards or criteria with which to evaluate Hughes's proposed mitigation. However, it then concluded that the lack of evidence presented by the parties about the respective functions and values of the two eelgrass beds involved was grounds to reverse Hughes's permit. This again constituted an improper shifting of the burden of proof from FOSJ onto Hughes. RCW 90.58.180, WAC 461-08-500(3). Hughes properly followed the mitigation sequence and worked in conjunction with WDFW to both minimize the impact of his dock and conduct off-site mitigation pursuant to SJCC 18.30.160. The Board's categorical preclusion of the use of off-site mitigation, despite the SMP's adoption of that very policy, was an erroneous interpretation of law.
D. Long-Term Benefits vs. Short Term Convenience
FOSJ points to the broad preservation-oriented goals expressed in the SMA and SMP, and argues that Hughes's dock contravenes them. Those goals include fostering statewide interests over local ones, preserving the natural character of shorelines, using the shorelines in ways that produce long-term benefits rather than short-term ones, and generally protecting natural resources and systems of shorelines. Comprehensive Plan, supra, at 3.4.F (mirroring the SMA, RCW 90.58.020). While the regulations undoubtedly convey a preference for the protection of the shoreline, the Board erroneously interprets this aspect of the SMA and the SMP to the exclusion of the rest of their provisions. In its fourth conclusion of law, the Board stated that Hughes's dock was contrary to the County's shoreline policies and priorities, because "the proposed dock will result in destruction of fragile and ecologically important eelgrass beds, which serve important ecological functions where they exist now." Yet, as discussed above, the Board acknowledged the insufficiency of evidence in determining with any certainty the extent and long-term consequences of any potential harm to the eelgrass. As Judge Linde correctly observed, "Even the experts were unsure of the extent of loss that would occur. The [Board] decision effectively concludes that the law as it currently exists precludes construction of docks over eelgrass. While it is possible that the County, WDFW or the legislature could do so, that is not the state of the law as it is today."
The law as it is today allows for the construction of a dock for single family residences. RCW 90.58.020. The SMP, SJCC 18.50.190(B.1-4), and the critical areas ordinance, SJCC 18.30.110, .160, require that impacts on sensitive environmental areas like eelgrass be minimized and mitigated, not prohibited outright. Here, Hughes went to great lengths to make his dock environmentally friendly and compliant. He ensured that his particular dock design met the SMP and WDFW criteria as required under SJCC 18.50.190(B)(3), and he undertook steps to compensate for the potential impact of his dock by providing substitute resources, as required under SJCC 18.30.160(B)(1)(v). Indeed, the Board acknowledged that his dock was "as favorable to the environment as is possible under available current technology." The dock was properly permitted by the County under its existing ordinances.
Accordingly, the Board's decision overturning the permit was based on conclusions of law that were unsupported by evidence that is substantial when viewed in light of the record. The Order also relies on erroneous interpretation and application of the law. The superior court properly reversed the Board's decision and reinstated the County's approval of Hughes's substantial development permit.
We affirm.
WE CONCUR.