Posted by: Patricia Salkin | January 17, 2020

WA Appeals Court Holds Proposed Replacement of Existing Floating On-Water Residences Would Constitute Substantial Development Under Shoreline Management Act

This post was authored by Matthew Loeser, Esq.

Appellants Fuller Style Inc. and Steady Floats Inc. filed three land use petitions challenging the City of Seattle’s Department of Construction and Inspections’ (“SDCI”) orders. The SDCI had determined that the replacement of previously existing floating on-water residences (“FOWRs”) constituted substantial development under the Shoreline Management Act of 1971 (“SMA”), chapter 90.58 RCW, and the City’s corresponding Shoreline Management Plan (“SMP”). The SDCI further found that the replacements were not subject to the normal maintenance or repair exemption from shoreline substantial development permit (“SSDP”) requirements. As such, 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.

 

On appeal, Fuller Style and Steady Floats contended that the SDCI erred in finding that SSDPs were required for each of the FOWR replacements. Specifically, they claimed the replacements did not constitute developments for which SSDPs were required. The court found that the term “Development” meant a use consisting of “the construction or exterior alteration of structures, placing of obstructions; or any project of a permanent or temporary nature that interferes with the normal public use of the surface of the waters.” Here, the undisputed facts reflected that each replacement structure at issue differed substantially from the existing FOWR it would replace: three replacement FOWRs were taller, larger, and shaped differently than the pre-existing FOWR. Thus, the court found that the City’s determination that replacement of the existing FOWRs constitutes construction or exterior alteration was neither an erroneous interpretation of the law nor a clearly erroneous application of the law to the facts. Fuller Style and Steady Floats further argued that even though the replacement FOWRs were developments, they were not developments within the shoreline. The court found that despite there being no physical construction within the Shoreline District, it did not follow that no development would occur within the shoreline.

 

Fuller Style and Steady Floats lastly argued that there was an absolute right to replace, expand, and relocate structures. As the court noted, however, Fuller Style and Steady Floats failed to cite any authority supporting the conclusion that permitting requirements were inconsistent with their rights. Additionally, the City did not contend that every time a FOWR is relocated it will need an SSDP, but instead that if a relocation fell within the definition of development, such as by substantially changing the views or obstructing normal public use where it previously was not obstructed, then a permit would be required. Accordingly, the court affirmed, holding that the City properly required SSDPs for these replacement FOWRs.

 

Fuller Style, Inc. v. City of Seattle, 454 P.3d 883 (2019)

 


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