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Fuller Style, Inc. v. City of Seattle

Court of Appeals of Washington, Division 1

December 23, 2019

FULLER STYLE, INC., a Colorado corporation, Appellant,
v.
CITY OF SEATTLE, a Washington municipal corporation, Respondent, and CANAL VIEW PROPERTIES, L.L.C., a Washington limited liability company, Other Necessary Party. STEADY FLOATS, INC., a Washington corporation, Appellant,
v.
CITY OF SEATTLE, a Washington municipal corporation, Respondent, and COMMERCIAL MARINE CONSTRUCTION CO., a Washington corporation, Other Necessary Party. FULLER STYLE, INC., a Colorado corporation, Appellant,
v.
CITY OF SEATTLE, a Washington municipal corporation, Respondent, and EWING STREET MOORINGS, L.L.C., a Washington limited liability company, Other Necessary Party.

          SMITH, J.

         Appellants Fuller Style Inc. and Steady Floats Inc. filed three land use petitions challenging the city of Seattle's (City) Department of Construction and Inspections' (SDCI) orders. In the orders, the SDCI concluded that replacement of previously existing floating on-water residences (FOWRs) constitutes substantial development under the Shoreline Management Act of 1971 (SMA), chapter 90.58 RCW, and the City's corresponding Shoreline Management Plan (SMP). Specifically, the SDCI determined that the replacements were not subject to the normal maintenance or repair exemption from shoreline substantial development permit (SSDP) requirements. Therefore, the SDCI required Fuller Style and Steady Floats to obtain SSDPs to replace the existing FOWRs. Fuller Style and Steady Floats consolidated their land use petitions in the superior court, which upheld the SDCI's orders.

         We conclude that Fuller Style and Steady Floats failed to meet their burdens to show a violation of the Land Use Petition Act (LUPA), chapter 36.70C RCW, and that the SDCI did not err in its interpretation of the SMA's definition of "development" or in its application of the law to the facts. Therefore, we affirm.

         BACKGROUND

         Shoreline Management Act

         Washington's legislature enacted the SMA "to insure the development of [the state's] shorelines in a manner which . . . will promote and enhance the public interest. . . [and] protect[ ] 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 public rights of navigation and corollary rights incidental thereto." RCW 90.58.020. The SMA applies, with some exceptions, to the "shorelines" of the state, i.e., "the water areas of the state" and "their associated shorelands, together with the lands underlying them." RCW 90.58.030(2)(e). To carry out its purpose, the SMA requires local governments to develop and enforce an SMP. See RCW 90.58.080. An SMP is a comprehensive use plan, "constitut[ing] use regulations for the various shorelines of the state." RCW 90.58.030(3)(b); RCW 90.58.100(1).

         The City codified its SMP in its land use code. See ch. 23.60A Seattle Municipal Code (SMC). The SDCI implements and updates the City's SMP. The SMP applies to the "Shoreline District," which "includes all shorelines of the City over which it has jurisdiction." SMC 23.60A.010(A). And "[a]ll property located within the Shoreline District is subject both to the standards of the applicable zone and to the requirements imposed by" the SMP. SMC 23.60A.010(B). The City's SMP defines its purpose as regulating development, uses, and shoreline modifications consistent with (1) "[p]rotect[ing] the ecological functions of the shoreline areas;" (2) "[e]ncourag[ing] water-dependent uses;" (3) "[p]rovid[ing] for maximum public access to, and enjoyment of the shorelines of the City;" and (4) "[p]reserv[ing], enhanc[ing], and increas[ing] views of the water." SMC 23.60A.002(B).

         Development on shorelines must be consistent with the policies and purpose of the SMA as adopted in the applicable SMP or "shall not be undertaken." RCW 90.58.140(1); SMC 23.60A.010. Specifically, an SSDP "is required prior to undertaking any development unless the [City] determines the development is not substantial development or [the City] has issued an exemption." SMC 23.60A.020(A){1); RCW 90.58.140(2).

         One such exemption exists for FOWRs. In 2014, the legislature adopted special SMA provisions for FOWRs. A FOWR is "any floating structure . . . that is designed or used primarily as a residence, has detachable utilities, and is the subject of a lease or sublease at a marina." SMC 23.60A.912. The owner of a pre-existing FOWR must verify the FOWR with the City in order to obtain "legal establishment of a [FOWR] pursuant to the requirements" of the City's SMP. SMC 23.60A.203(D). Once verified, a FOWR is a conforming use-authorized to remain over shoreline waters, despite nonwater dependent uses not being preferred uses in the Shoreline District under the SMP-if prior to July 1, 2014, the floating structure "[w]as legally established as a [FOWR]" and "[w]as moored pursuant to a lease or ownership interest at a marina . . . within the City." SMC 23.60A.944; SMC 23.60A.203(B). A verified FOWR is not subject to SSDP requirements where the development involves normal maintenance or repair of the structure. SMC 23.60A.203(C)(I).

         Facts

         In November and December of 2017, Fuller Style and Steady Floats sought normal maintenance or repair exemptions for the replacement of three FOWRs: FOWR 873, FOWR 811, and FOWR 801. It is unclear whether the FOWRs have been constructed. However, according to the applications submitted to the SDCI, Steady Floats would construct FOWR 873's replacement at the Snow and Company Shipyard in Seattle. Fuller Style would construct FOWR 811's and FOWR 801's replacements at Canal Boatyard in Seattle. Thus, the replacements for all three FOWRs would be constructed landward of the Shoreline District boundary. The replacement of the previous FOWRs and moorage of the newly constructed FOWRs would occur within the Shoreline District. Each FOWR replacement would be launched using a vessel launch system and towed to its moorage, and thereafter, FOWR verification with the City would be updated pursuant to SMC 23.60A.203(C)(1)(d).

         The SDCI denied all three applications for exemptions and directed the parties to obtain an SSDP for each replacement FOWR. Specifically, the SDCI concluded that the replacement of the FOWRs constitutes substantial development and the normal maintenance and repair exemption does not apply because replacement is not the common method of repair for FOWRs. Fuller Style and Steady Floats brought three LUPA petitions, which they later consolidated, challenging the SDCI's orders. The superior court denied the petitions following oral argument. Fuller Style and Steady Floats appeal.

         ANALYSIS

         Standard ...


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