Shb 07-023 Summary Judgment

BEFORE THE SHORELINES HEARINGS BOARD STATE OF WASHINGTON

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VINE STREET INVESTORS LLC, 3 Petitioner, 4

v. SHB NO. 07-023

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CITY OF OLYMPIA, ORDER ON SUMMARY JUDGMENT Respondent,

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and

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CITIZENS FOR WATERFRONT VIEWS and WILLIAM H. and DANA LOU GARSON,

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Intervenors.

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This appeal involves Petitioner Vine Street Investors LLC’s (Vine) appeal of City of

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Olympia’s (City) denial of a shoreline substantial development permit (SDP) for the construction

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of an office building and parking structure in downtown Olympia near Budd Bay. Citizens for

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Waterfront Views (Citizens) and William and Dana Garson (Garsons) were allowed to intervene

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as party respondents. The City, Vine, and Citizens all filed cross motions for summary

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judgment. Vine argues that the City should have approved the SDP because the applicable

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height restrictions do not protect shoreline views that are impacted solely by development below

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the 35-foot height limit. The City and Citizens oppose Vine’s motion and ask for Summary

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Judgment in their favor on the same issue.

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ORDER ON SUMMARY JUDGMENT SHB NO. 07-023

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The Board hearing this matter was comprised of Kathleen D. Mix, Chair, William H.

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Lynch, Andrea McNamara Doyle, Judy Wilson, Mary Alyce Burleigh, and Tim Farrell. Kay M.

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Brown, Administrative Appeals Judge, presided for the Board. The Board received and

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considered the following documents in ruling on this motion:

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1.

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3. 4. 5. 6. 7. 8.

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9. 10.

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Vine Street Investors’ Motion for Summary Judgment and Approval of a Settlement, Brief in Support of Motion for Summary Judgment, and Exhibits A through D, Declaration of Glenn Wells with attachments 1 through 12 (A-J); City of Olympia’s Motion for Summary Judgment and Declaration of Darren Nienaber with Exhibits 1 through 7; Intervenor’s Motion for Summary Judgment; Response to City of Olympia’s Motion for Summary Judgment and Intervenor’s Motion for Summary Judgment; City of Olympia’s Response to Petitioner’s Motion for Approval of Stipulation; City of Olympia’s Response to Petitioner’s Motion for Summary Judgment; Intervernor’s Response to Appellant’s Motion for Summary Judgment; City of Olympia’s Reply to Petitioner’s Response to the City’s Motion for Summary Judgment; Reply Brief in Support of Intervenor’s Motion for Summary Judgment; Vine Street Investors’ Reply to Responses to Motions for Summary Judgment; and, Stipulation in Support of Settlement.

14 Based on the record and evidence before the Board, the Board enters the following 15 decision. 16 FACTUAL BACKGROUND 17 Vine owns a city block in Olympia upon which it proposes to build a five-story, 65-foot 18 tall commercial office and retail building. The lot is currently vacant and bordered on all sides 19 by public streets. Approximately the west one-third of the project site is located within 200 feet 20 of the ordinary high watermark of Budd Inlet and within the urban shoreline environment 21 22 23 24 25

overlay. The remainder of the site is within the urban waterfront land use district zoning. In the ORDER ON SUMMARY JUDGMENT SHB NO. 07-023 2

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urban waterfront land use district, commercial development is a permitted use and commercial

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structures up to a height of 65 feet are allowed. Wells Decl., Attachments2-4.

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To the north of the proposed project site is a four-story structure called Percival Plaza.

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Percival Plaza is primarily an office building, with residential units on the fourth floor. To the

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south is the three-story Phoenix Inn. To the west toward Budd inlet is Columbia Street and

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several small commercial buildings. To the east is a four-story two-building apartment complex

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(north and south buildings) called the Boardwalk Apartments. Wells Decl. and Attachments 2-4.

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The Boardwalk Apartments are located one block away from the water. Between the apartments and the water lie a city street, the vacant lot that is the site of the proposed project,

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another city street, a row of several low-rise buildings occupied by restaurants and other

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commercial uses, and a public access boardwalk and in-water marina. The urban city shoreline

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in this area with its public boardwalk along the water is extensively used by the public. Wells

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Decl., Attachments 2-4.

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The residents of the senior-only Boardwalk Apartments currently have views of the

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shoreline boardwalk located along the east shore of Budd Inlet, along with views of the marina,

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boats, water, and the west (opposite) shore of Budd Inlet. The views of the shoreline area exist

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because the current project site is a vacant lot. The vacant lot is the former site of a set of

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commercial retail buildings known as “Yardbirds.” After a fire and subsequent demolition of

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Yardbirds, the lot has remained empty. Wells Decl. and Attachments 2-4, 8-10 and 12.

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It is uncontested that the proposed structure would substantially block the existing

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shoreline views presently available from 39 of the Boardwalk Apartment units. It is also

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ORDER ON SUMMARY JUDGMENT SHB NO. 07-023

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uncontested that a 35-foot building in the same location would block the same shoreline views

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from the same Boardwalk Apartment units. The only difference in view impact that would be

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experienced by the Boardwalk Apartments from a taller building would be the obstruction of the

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view of some tree tops along the horizon line on the hills of west Olympia on the opposite side of

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Budd Inlet. City’s Motion for Summary Judgment, Ex. 4-7, Wells Decl., Attachments 3, 4, and

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12.

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PROCEDURAL BACKGROUND The City Staff recommended to the City Hearing Examiner that the SDP be granted. The staff concluded that although the building was in excess of 35 feet, the additional height of the

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building did not block any additional shoreline views other than what would be blocked by a 35-

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foot building on the same site. The Hearing Examiner agreed with this analysis. The Citizens,

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who represent the interests of the Boardwalk Apartment Residents, along with the Garsons, who

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are residents of the Percival Plaza Building, appealed the Hearing Examiner’s decision to the

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Olympia City Council (Council). Wells Decl, Attachments 3, 4, 11 and 12.

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The Council reversed the Hearing Examiner and concluded that the SDP should be

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denied on the basis of the view blockage from the Boardwalk Apartments. The Council noted

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that the Hearing Examiner had not made any findings regarding whether the proposed project

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would block views from the Percival Plaza, however the Council concluded it did not need to

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reach the view issues from the Percival Plaza building because it was reversing the Hearing

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Examiner’s decision to grant the SDP. Wells Decl, Attachment 11 and 12.

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ORDER ON SUMMARY JUDGMENT SHB NO. 07-023

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The Council’s decision was appealed to this Board by Vine. The Garsons and the

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Citizens intervened.1 Vine, the City, and the Citizens have all moved for summary judgment on the single issue

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raised by the parties to this appeal: Whether the proposed office building must be denied because it will obstruct the view of a substantial number of residences in violation of RCW 90.58.320, WAC 173-27-140(2) and/or Thurston Region Shoreline Master Program (TRSMP) Sec. 3, Part V.C.1?

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The Board concludes that as to this single, narrow, issue there are no disputed issues of 8 fact, and the issue is amenable to summary judgment. 9 ANALYSIS 10 1. Summary Judgment Standard 11 Summary judgment is a procedure available to avoid unnecessary trials on formal issues 12 that cannot be factually supported and could not lead to, or result in, a favorable outcome to the 13 opposing party. Jacobsen v. State, 89 Wn.2d 104, 569 Wn.2d 1152 (1977). The summary 14 judgment procedure is designed to eliminate trial if only questions of law remain for resolution. 15 The party moving for summary judgment must show there are no genuine issues of material fact 16 and the moving party is entitled to judgment as a matter of law. Magula v. Benton Franklin Title 17 Co., Inc., 131 Wn.2d 171, 182; 930 P.2d 307 (1997). A material fact in a summary judgment 18 proceeding is one that will affect the outcome under the governing law. Eriks v. Denver, 118 19 Wn.2d 451, 456, 824 P.2d 1207 (1992). In a summary judgment, all facts and reasonable 20 21

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After intervening, the Garsons reached a settlement with Vine, whereby Vine agreed to modify the top 25 feet of the building to conform to the same “stepped” profile as the Percival Plaza within the shoreline, thus resolving any

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inferences must be construed in favor of the nonmoving party. Jones v. Allstate Ins. Co., 146

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Wn.2d 291, 300, 45 P.3d 1068 (2002). Summary judgment may also be granted to the non-

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moving party when the facts are not in dispute. Impecoven v. Department of Revenue, 120

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Wn.2d 357, 365, 842 P.2d 470 (1992). The only shoreline views subject to obstruction at issue in this appeal are the views from

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the Boardwalk Apartments. The Board concludes there are no genuine issues of material fact

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related to the nature and extent of the Boardwalk Apartment shoreline views that will be

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obstructed by development on the project site. Therefore, the Board concludes that this issue is

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amenable to summary judgment.

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2. RCW 90.58.320

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The sole issue presented for decision to this Board is whether the proposed office

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building obstructs the views of a substantial number of residents in violation of RCW 90.58.320,

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WAC 173-27-140(2) and/or Thurston Region Shoreline Master Program (TRSMP) Sec. 3, Part

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V.C.1.

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The language of the Shoreline Management Act (SMA) statute and rule are nearly identical. RCW 90.58.320 states: No permit shall be issued pursuant to this chapter for any new or expanded building or structure of more than thirty-five feet above average grade level on shorelines of the state that will obstruct the view of a substantial number of residences on areas adjoining such shorelines except where a master program does not prohibit the same and then only when overriding considerations of the public interest will be served.2 view issues from Percival Plaza. Vine’s Motion for Summary Judgment and Approval of Settlement, Ex. A. 2 WAC 173-27-140(2) repeats the statute virtually verbatim: “No permit shall be issued for any new or expanded building or structure of more than thirty-five feet above average grade level on shorelines of the state that will obstruct the view of a substantial number of residences on areas adjoining such shorelines except where a master

ORDER ON SUMMARY JUDGMENT SHB NO. 07-023

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The Thurston County Shoreline Master Program’s height provision similarly provides:

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Buildings over thirty-five (35) feet will be allowed if they do not obstruct the view of substantial numbers of residents or upland properties. TRSMP, Sec. 3, Part V.C.1,

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The Shorelines Hearings Board, in a 2003 decision, carefully considered the specific

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requirements of RCW 90.58.320 and the test it sets out for whether a building exceeding 35 feet

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is allowed in a particular shoreline area. Alexander v. City of Port Angeles, SHB No. 02-027 &

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02-028 (July 1, 2003). In that case, the project under consideration was construction of a hotel

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and convention center on a vacant parcel of land in the downtown Port Angeles area. Parts of

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the building exceeded 35 feet in height, and therefore application of RCW 90.58.320 was

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triggered. In its analysis the Board considered the four specific factors set out in the statute: (1)

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whether the building exceeds 35 feet; (2) what constitutes a substantial number of residences; (3)

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what is an area adjoining the shoreline; and (4) whether there is an obstruction of the view of a

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substantial number of residences. Id. at CL 9-14.

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Here, the first two factors are not in dispute, but the second two are. There is no dispute

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that the proposed building will exceed 35 feet, and there is also no dispute that the number of

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residential units in the Boardwalk Apartments whose views will be blocked is sufficient to meet

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the statutory requirement of a “substantial number.” There is some dispute whether the

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Boardwalk Apartments are “on an area adjoining such shorelines,” which we conclude they are.

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The primary dispute, however, is whether their existing shoreline view across a vacant lot is

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protected by the height limitation contained in RCW 90.58.320 or whether the view protection

21 program does not prohibit the same and then only when overriding considerations of the public interest will be

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ORDER ON SUMMARY JUDGMENT SHB NO. 07-023

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afforded by this provision applies only to shoreline views available above the height of a 35-foot

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building. A majority of the Board concludes that it is the latter.

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a. Adjoining areas

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Vine argues that, based on the use of the word “adjoining,” only residences whose

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properties physically touch the shorelines3 are within the purview of protected views under RCW

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90.58.320. The Boardwalk Apartments, although across the street from the proposed building,

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do not physically “touch” either the edge of the water or the edge of the 200 foot shoreline

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jurisdictional area. Based on the interpretation Vine urges on the Board, the Boardwalk

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Apartments would not be considered residences “on areas adjoining the shorelines” for purposes

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of RCW 90.58.320. Vine’s interpretation is inconsistent with the actual language of the statute. The statute

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states that the residential views protected must be on “areas adjoining such shorelines.” The use

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of the word “areas,” and not a more specific term such as “property,” implies that the Legislature

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intended something broader than just the property physically touching the 200-foot shoreline

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jurisdictional area. Such an interpretation is consistent with the Legislature’s directive that the

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SMA shall be liberally construed to give full effect to the objectives and purposes for which it

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was enacted. RCW 90.58.900. The interpretation offered by Vine is also inconsistent with

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Alexander. Alexander v. City of Port Angeles, SHB No. 02-027 & 02-028 (July 1, 2003). In that

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served.” 3 “Shorelines” is defined in the Shoreline Management Act to include “all waters of the state . . . including their associated shorelands.” RCW 90.58.030(2)(d). “Shorelands” is defined to be “those lands extending landward for two hundred feet . . .” RCW 90.58.030(2)(f). Therefore, the reference to shorelines is a reference to the 200 foot shoreline jurisdictional area.

ORDER ON SUMMARY JUDGMENT SHB NO. 07-023

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case, the Board, citing Allegra Development Co., Inc. v. Wright Hotels, SHB No. 99-08 & 99-09

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(1999), recognized that it had construed “areas adjoining such shorelines” broadly in past

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decisions. See also Grill v. Baraka, SHB No. 02-001 (June 4, 2002); Dept. of Ecology v.

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Pacesetter Const. Co., Inc, 89 Wash.2d 203, 212, 571 P.2d 196 (1977) (noting that “RCW

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90.58.320 expressly provides that no substantial development permit will be issued for any

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structure over 35 feet high that will obstruct the view of a substantial number of residences in the

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area adjoining the structure”) (emphasis added). The Board in Alexander went on to hold that

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the water-oriented views of residences on a bluff up to 1,000 feet to the south of and 84 feet

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above the proposed project were entitled to the protection of RCW 90.58.320.

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The Board is not persuaded that it should deviate from its prior holding on this point, and

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concludes that the Boardwalk Apartments are properly considered residences adjoining the

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shoreline for purposes of RCW 90.58.320.

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b. View obstruction

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The heart of this appeal, and the issue upon which the Olympia City staff and City

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Hearing Examiner differ with the City Council, is whether the proposed building would obstruct

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any views reasonably subject to protection under RCW 90.58.320. Under the unique and

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uncontested facts presented here, the Board concludes that it would not. This conclusion is

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based on our reading of RCW 90.58.320, which we interpret to protect against view blockage

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caused by any portion of a development that exceeds 35 feet in height.

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It is undisputed that the nature and extent of the shoreline view obstruction from the

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Boardwalk Apartments will be the same with both the proposed 65-foot building and any 35-foot

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ORDER ON SUMMARY JUDGMENT SHB NO. 07-023

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building built on the same lot. The significance of this fact is that a 35-foot building is allowed

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outright under the SMA,4 with no analysis of view blockage required. In other words, the

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Boardwalk Apartments’ shoreline views exist now simply because it is overlooking a vacant lot.

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Once any building 35 feet high is built on the existing vacant lot, the Apartments’ shoreline

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views will be blocked. In interpreting the provisions of the Shoreline Management Act (SMA), the Legislature

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has directed that the SMA be “liberally construed to give full effect to the objectives and

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purposes for which it was enacted.” RCW 90.58.900. The Legislature makes the following

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statement of the purpose of the SMA: It is the policy of the state to provide for the management of the shorelines of the state by planning for and fostering all reasonable and appropriate uses. This policy is designed to insure the development of these shorelines in a manner which, while allowing for limited reduction of rights of the public in the navigable waters, will promote and enhance the public interest. This policy 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 public rights of navigation and corollary rights incidental thereto.

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The legislature declares that the interest of all of the people shall be paramount in the management of shorelines of statewide significance.

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RCW 90.58.020. One of the interests of the public to be protected is to: (5) Increase public access to publicly owned areas of the shorelines;

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RCW 90.58.020(5).

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The regular city zoning in this area, without the shoreline management overlay, allows a maximum building height of 65 feet at this location, with an additional two stories above the 65-foot height maximum that may be built for residential occupancy. OMC Table 6.02 and OMC 18.06.100(A)(2)(b).

ORDER ON SUMMARY JUDGMENT SHB NO. 07-023

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The purpose of RCW 90.58.320 is to advance this policy by protecting the visual access

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to the shorelines available to a substantial number of residents from blockages caused by

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buildings over 35 feet. The problem presented in this unique factual situation is that the purpose

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of RCW 90.58.320 and the SMA is not fulfilled by denying Vine’s proposal. As recognized by

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the Hearings Examiner and Olympia City staff, applying RCW 90.58.320 in this situation

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“would lead to an absurd result, i.e., restricting the building on the property to 35 feet without

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any corresponding lessening of view impacts.” Wells Decl., attachment 4, p 7-8. Any proposed

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35-foot building would take away the same views and yet would not be subject to the prohibition

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contained in RCW 90.58.320.5 This is not what the Legislature intended when it passed this

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provision of the SMA, and such an interpretation runs contrary to the Legislative directive of

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“fostering all reasonable and appropriate uses” in the management of the shorelines.

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It is an accepted principle of statutory construction that statutes should be construed to

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affect their intent and purpose. Burlington Northern v. Johnston, 89 Wn.2d 321, 326, 572 P.2d

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1085 (1977). They must be interpreted in a manner that best advances the perceived legislative

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purpose. Morris v. Blaker, 118 Wn.2d 133, 143, 821 P.2d 482 (1992). Unlikely, absurd or

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strained consequences resulting from a literal reading should be avoided. State v. McDougal,

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120 Wn.2d 334, 350, 841 P.2d 1232 (1992). The McDougal Court, citing a treatise on statutory

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construction, explains:

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While it would not be subject to the prohibition in RCW 90.58.320, such a proposal would still be required to be consistent with RCW 90.58.020, which this Board has long held to include some level of view protection and analysis of compatibility with the surrounding area. See e.g. Alexander v. City of Port Angeles, SHB No. 02-027 & 02-028, at COL XVIII-XIX (July 1, 2003), Allegra Development Co. v. Seattle, SHB 99-08 & 09, at COL IX-X (1999), Sato Corporation v. Olympia, SHB 81-41 (1982).

ORDER ON SUMMARY JUDGMENT SHB NO. 07-023

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It has been called a golden rule of statutory interpretation that unreasonableness of the result produced by one among alternative possible interpretations of a statute is reason for rejecting that interpretation in favor of another which would produce a reasonable result. It is a “well established principle of statutory interpretation that the law favors rational and sensible construction.” It is fundamental, however, that departure from the literal construction of a statute is justified when such a construction would produce an absurd and unjust result and would clearly be inconsistent with the purposes and policies of the act in question.

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McDougal at 352, (citing 2A N. Singer, Statutory Construction § 45.12 (4th ed. 1984)(footnotes deleted)).

7 Reading RCW 90.58.320 to prohibit a building in excess of 35 feet that would block no 8 views other than those that would be blocked by a building lower than 35 feet is an unlikely, 9 absurd, or strained result not intended by the statute. The statute is not intended to prohibit all 10 buildings over 35 feet in the shoreline area, just those whose height obstructs the views of a 11 substantial number of residences without serving an overriding public interest. In other words, if 12 the proposed project going above 35 feet causes view impairment for a substantial number of 13 residences, then there must be a determination whether overriding considerations of the public 14 interest will be served. 15 The Board was presented with a similar situation to the present one in the Alexander 16 decision, cited previously. Alexander v. City of Port Angeles, SHB No. 02-027 & 02-028 (July 17 1, 2003). In that case, the Board considered the fact that a building proposed to be built in the 18

City’s central business district would obstruct the views of residences on the bluff. The Board

19 noted that the shoreline views of these same residences would be obstructed by a 35-foot 20 building, and therefore concluded that the analysis of view obstruction should not turn on the 21 22 23 24 25

obstruction of the shoreline view. Alexander at CL XVI. See also, Condominium Builders, Inc. ORDER ON SUMMARY JUDGMENT SHB NO. 07-023 12

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v. King County, SHB Nos. 78-20 & 22 (April 6, 1979) (noting that the proposed 43.5 feet high

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condominiums would obstruct some views of the water, and would continue to obstruct these

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view even if the height were reduced to 30 feet, and concluding that a height reduction was not

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required based on the facts of the case). Here, like in Alexander and Condominium, prohibiting the proposed project does not

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protect the shoreline views of the Boardwalk Apartments6 and so does not further the purposes of

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RCW 90.58.320. Therefore, its operation should not preclude this proposed project. There is only one issue raised by the parties to this case – whether the proposed project

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obstructs views in violation of RCW 90.58.320, WAC 173-27-140(2) and/or TRSMP Sec. 3, part

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V. C.1. Since the parties have limited the issues to just RCW 90.58.320, and the Board

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concludes that no protected views of the shoreline are blocked, the Board does not reach the

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question of whether the project is consistent with RCW 90.58.020 or serves an overriding public

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interest.7

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Further, as pointed out by Vine, the City’s Comprehensive Plan (Plan) does not support an expectation by the Boardwalk Apartment residents that their view will be protected. In fact, the expectation is just the opposite. The City has a policy of encouraging infilling and the redevelopment of undeveloped parcels. Comprehensive Plan, Land Use and Urban Design, p. 4. The proposed project site is now vacant and underutilized. In addition, the Plan provides for protection of views from designated viewing points and corridors. The Boardwalk Apartments are not located in an area with designated view protection. Comprehensive Plan, Land Use and Urban Design, pp. 6, 7. 7 The facts in this case present a troubling situation because permits are not to be issued for buildings that exceed 35 feet on shorelines of the state that will obstruct the view of a substantial number of residences in areas adjoining the shoreline, except where not prohibited by the local master program “and then only when overriding considerations of the public interest will be served.” RCW 90.58.320 (emphasis added). Here, not only is there no evidence of overriding public interest, the City itself appears to be opposed to the project by virtue of its decision to deny the permit. Both the statute and WAC appear to presuppose that the structure would have the approval of the local government. Nevertheless, the majority believes that the restrictions are meant to apply when the height of the structures in excess of 35 feet cause the view obstructions.

ORDER ON SUMMARY JUDGMENT SHB NO. 07-023

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ORDER

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The decision of the Olympia City Council is reversed, and the matter is remanded to the

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City for issuance of a Shoreline Substantial Development Permit consistent with this decision

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and the agreement entered into between the City and the Garsons.

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SO ORDERED this 13th day of March 2008.

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SHORELINES HEARINGS BOARD

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See Dissenting Opinion KATHLEEN D. MIX, Chair

8 WILLIAM H. LYNCH, Member 9 ANDREA McNAMARA DOYLE, Member 10 MARY-ALYCE BURLEIGH, Member 11 TIM FARRELL, Member 12 JUDY WILSON, Member 13 14

Kay M. Brown Administrative Appeals Judge Presiding

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ORDER ON SUMMARY JUDGMENT SHB NO. 07-023

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