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Hayes v. Yount

Citation: 6 ELR 20767
No. No. 43776, 552 P.2d 1038/87 Wash. 2d 280, (Wash., 07/15/1976)

Remanding a lower court's decision, the Washington Supreme Court upholds the Shorelines Hearing Board's vacating a permit issued by Snohomish County that would have allowed filling 93 acres of wetlands in the Snohomish River estuary. Plaintiff's land, designated as part of "shorelines of state-wide significance" under the Shoreline Management Act of 1971, is a salt marsh surrounded by commercial enterprises. Plaintiff's application to develop the area as a "marine industrial area" was approved by the county, but the Shorelines Board vacated the permit as too vague to determine whether the shoreline modification would meet the requirements of the Act. The Superior Court reversed, holding the Board's action to be arbitrary, capricious, and an unconstitutional taking of property.

The Board's action is not arbitrary simply because it considered the cumulative effect on shorelines of piecemeal development in evaluating a single permit. Also, the Board's finding that the Act prohibits solid-waste disposal in shoreline areas was not arbitrary and did not need to be based on a finding of adverse water quality effects. The Act's shoreline protection policy must be liberally construed and the administrative agency's decision must be given broad deference by the court. In view of the Act's policy that shoreline development be reserved for water-dependent uses and that permits be specific enough to allow counties and the Board to review their adequacy, the Board did not err in requiring the permit to be more specific than stating that it was for a "marine industrial area." Since only three, rather than the statutorily-required four, members of the Board voted to restrict filling to a ten-acre part of plaintiff's property, the Board's decision is not binding with respect to the size of the filled parcel. Since it is now merely a hypothetical restriction, it cannot cause an unconstitutional taking of private property.

The Superior Court is reversed.

Counsel for Plaintiff-Respondent
William W. Baker
Anderson, Hunter, Dewell, Baker & Collins
First National Bank Bldg.
1610 Hewitt Ave.
Everett WA 98201
(206) 252-5161

Counsel for Defendant-Appellant
Slade Gorton, Attorney General
Charles B. Roe, Jr.
Robert V. Jensen Asst. Attorneys General
Temple of Justice
Olympia WA 98504
(206) 753-2550