HomeMy WebLinkAbout2961-15
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Michelle McConnell
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From:
Sent:
To:
Cc:
Subject:
Attachments:
Jerry Gorsline Dgors@q.com]
Wednesday, December 03, 2008 11 :07 AM
Michelle McConnell
Cyrilla Cook; AI Bergstein
FW: Taylor/Foss Pierce County SHB Summary Judgement Request
TaylorFoss Summary Judge Request--SHB.pdf
Michelle - FYI - Jerry
-----Original Message-----
From: Laura Hendricks [mailto:laura.l.hendricks@gmail.com]
Sent: Tuesday, December 02,20086:36 PM
To: Jerry Gorsline
Subject: Taylor/Foss Pierce County SHB Summary Judgement Request
Hi Jerry,
I am attaching the new Taylor request for summary judgement at the Shoreline Hearings Board for the
Taylor/Foss Pierce County hearing examiner case. This is important information as the aquaculture site will
become permanent unless specific language is used if Taylor's argument prevails. This case should be reviewed
when Jefferson County is finalizing the Shoreline Master Program aquaculture language.
This also brings to mind on how would Jefferson County stop an aquaculture site for whatever reason and what
legal rights would industry have after the fact if a permit was not required but the county was aware of the
operation.
Please let me know if you want me to send this to Michele or someone else in Port Townsend Planning.
Sincerely,
Laura
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ATTORNEYS AT LAW
December. 2, 2008
Phyllis K. Macleod, Presiding
Administrative Appeals Judge
Shorelines Hearings Board .
EnvIronmental Hearings Office
P. O. Box 40903
Olympia, W A 98504-0903
RECEIVED
. DEe Q 2 2008
BRICKLlNNEWMAN DOLD. LLP
Re: SHB No.08-0lO I 08-017
Taylor Resources, Inc. v. Pierce County
Dear Ms. MacLeod: .
On behalf of Taylor Resources, Inc.. ("Taylor"), we submit the enclosed Motion for
Summary Judgment ~d Second Declaration ofD~can M. Greene for the Board's consideration.
.)
The Board's procedural rules authorize the filing of dispositive motions and supportive
documentation "not later than sixty days before the hearing date." WAC 461-08-475(4)(a).
While the Board's original Pre-Hearing Order in this case set a deadline of September 8, 2008,
for dispositive motions, t1.e Board has since moved the hearing date from November 17-19, 2008
to February 17-19,2009. With this new hearing date, Taylor's dispositive motion will be filed
weli in advance ofthe 60-day cutoff before the hearing,
Accordingly, Taylor respectfully requests that the Board consider the enclosed motion
and declaration and, if necessary, modify the Pre-Hearing Order to change the deadline for
dispositive motions to December 8, 2008.
~ut~?
Samuel W. PIa che
Attorney for Taylor Shellfish Farms
DG:dg
Enclosures
cc: Jill Guernsey (w/encs.)
Jerry Kimball (w/encs.)
David Brick1in (w/encs.)
Y.', VP"TA YLOR,FOSSlAPPEAL- SHB OS.OIO\L.SHB.MSJ.120208.DG.DOC
. 2025 First Avenue, Suite 500, Seattle, WA 98121-3140 206-382-9540 fax 206-626-0675 www.GordonDerr.com
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RECEIVED
DEe 0 2 2008 .
BRICKLlN NEWMAN DOLO. LLP
BEFORE THE SHORELINES HEARINGS BOARD
. STATE OF WASHINGTON
TAYLOR RESOURCES, INC. a Washington
corporation; also known as TAYLOR
SHELLFISH FARMS, and NORTH BA Y
P AR'INERS LLC; M. LESLIE FOSS,
v.
)
)
.) No. SHE No. 08-010
) SHE No. 08-017
)
Petitioners/Intervenors, . )
)
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)
)
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Resnondent/Intervenor. )
I. INTRODUCTION
PIERCE COUNTY, and COALITION TO
PROTECT PUGET SOUND HABITAT,
TAYLOR RESOURCES, INC.'S
MOTION AND MEMORANDUM
IN SUPPORT OF SUMMARY
JUDGMENT
Pursuant to WAC 461-08-300(2) and CR 56, Petitioner Taylor Resources, Inc. .
("Taylor") respectfully requests that the Bb~d gr~t summary judgment to Taylor ~d
reverse Pierce County's rescission of Shoreline Substantial DevelopmentPermit SD 22-00
("SD 22-00"). For the reasons discussed herein, there are no genuine issues of material
fact and Taylor is entitled to judgment as a matter oflaw.
The sole basis for the County's rescission of SD 22-00 was its determination that
the permit expired. In its Order Denying Intervenor's Motion to Di'smiss, the Board
correctly found that SD 22-00 did not expire. Because this finding provides a sufficient
basis for granting Taylor's requested relief, a hearing in this matter is unnecessary. The
County's attempt to retroactively apply a new interpretation limiting the duration of
\
TAYLOR RESOURCES, INC.'S MOTION AND
MEMORANDUM IN SUPPORT OF SUMMARY
JUDGMENT - 1
GordonDerru>
2025 First Avenue, Suite 500
Seattle, WA 98121-3140
(206) 382-9540
Y:IWPITA YLORIFOSS\APPEAL - SHB 08-0 I OIP MOTION SUMMARY lDGMT.FINALI20208.DG.DOC
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1 geoduck farming activities to Taylor's previously-issued permit was improper as a matter
2 'of law and should be reversed.
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II.
STATEMENT OF FACTS
A.
Factual Background
. The relevant factual background for this dispute is set forth in the Board1.g Order-
Denying.Motion to Dismiss .dated November 7, 2008 (the "Order"), as well as the
pleadings and other materials, including the Declaration of D}ll1can M. Greene ("Greene
DeeL"), filed by Taylor on September 9, 2008, in response to the County's and the
. .
Coalition's motions to dismiss.1 Additional evidence cited herein in'support of this motion
and the findings in the Order is attached to the Second Declaration of Duncan M. Greene
("Second Greene Decl.") filed with this motion.
B.
Procedural History
This is a:p appeai of the Pierce County Hearing Examiner's decision to affirm
Administrative Determination SD 22-00, issued August 7, 2008 (the "Administrative
Determination"). The Administrative Determination concluded that Taylor's permit ~'has
~
expired and further work at .the site will require application for approval of a new
shoreline substantial development permit." See Greene Decl.l Attachment 5, p., 1. The
. . ~ '
Hearing Examiner issued a decision affirming the Administrative Determination on June
12, 2008.1d., Attachment 13 (the "Examiner.'s Amended Decision").
The Examiner's Amended Decision was appealed bothto this Board pursuant to
the SMA and to Thurston County Superior Court under the Land Use Petition Act
(LUP A). Second Greene Dec!., Attachment 1. The LUP A appeal was stayed by stipulation
of the parties "until the Shorelines Hearings Board enters a final order or until a Superior
:-'::5
I The Order Denying Motion to Dismiss and the materials filed by Taylor in response to the County's and
the Coalition's motions to dismiss are incorporated herein by this reference.
TA YLOR RESOURCES, INC.'S MOTION AND
MEMORANDUM IN SUPPORT OF SUMMARY
JUDGMENr - 2
. GordonDerr...
2025 First Avenue. Suite 500
Seattle, WA 98121-3140
(206) 382-9540
Y:IWPITAYLORIFOSSlAPPEAL. SIiB 08-OIOIP MOTION SUMMARY JDGMT.FINAL.I 20208,DG.DOC
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1 Court reverses a Shorelines Hearings Board decision that the Shorelines Hearings Board.
2 has jurisdiction."ld., Attachment 2.
3 In its Petition to the Board, Taylor requested the following relief:
4 1.. An order and judgment that the Ex~ner' s Decision is contrary to
law and not supported by evidence. .
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2. An order and judgment modifying the Examiner's Order to find
that the authorization to operate a geoduck farm in SD 22-00 does
not expire}
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The County and the Coalition moved to dismiss Taylor's appeal for lackof
jurisdiction. On November 7, 2008, the Board denied these motions, finding that it has
jurisdiction over this appeal because the County's actions constitute the rescission of a
permit. See Order at 12.3
III. ARGUMENT
)
A.
Legal Issues
The Pre-Hearing Order in this case identifies nine legal issues for resolution. For .
the reasons discussed in this motion, however, the Board can fully resolve this appeal and
grant all the reli~frequested by Taylor by answering Issues. 1 and 2 in the affirmative:"
1.
Whether the Hearing Examiner's conClusion that SD 22-00 expired
is erroneous and inconsistent with applicable laws and regulations
including the Shoreline Management Act (SMA), state
implementing regulatIons, the Pierce County Shoreline Master
'program (SMP), case law, and the plain language of the permit,
itself. . .
2 See Petition for Review, p. 13. Taylor also provided alternative grounds for relief, but these grounds only
23 become relevant if this motion is denied. .
3 The Coalition has filed.an interlocutory "Third Party Petition for Review" in the pending LUPA action
24 challenging the Board's Order Denying Motion to Dismiss. Taylor has argued that the Coalition's Petition is
not proper.
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TAYLOR RESOURCES, INC. 'S MOTION AND
MEMORANDUM IN SUPPORT OF SUMMARY
JUDGMENT - 3
GordonDerr..,
2025 First Avenue, Suite 500
Seattle, WA98121-3140
(206) 382-9540
Y:\WPlTAYLORIfOSSlAPPEAL - SHB 08-0 I OIP MOTION SUMMARY JDGMT.FINAL.120208.DG.DOC
. .
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2.
Whether Ii preponderance of the evidence presented to the Board
supports that SD 22-00 did not. expire, contrary to the Examiner's'
Decision.4
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This motion, if granted, would fully resolve this controversy by finding SD 22-00
is still in effect and allows Taylor to continue to operate: Thus, if this motion is granted,
the Board need not address any other issues in the Pre-Hearing Order.5 The. question the
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Board reserved for hearing in its November 7 Order ~ "whether a permit rescission was
. . I .
warranted in this case" - is a legal question that sp.ould be resolved on summary .
judgment. See ~rderat 12.
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B.
Standard for Rescission
In its November 7 Ord~r, the Board reserved a single issue for hearing: "whether a
"
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permit rescission was warranted in this case. " See, Order at Ii The SMA is silent on the
burden of proof in appeals of decisions to rescind a pennit6
This Board has previous1~ concluded, by analogy to ,the concepJ of expressio
unius, that in such cases the burden is on the rescinding authority.' Thus, the County and
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4 See. Pre-Hearing Order at 2.
5 North Bay Partners and M. Leslie Foss ("North Bay") has filed a separate motion for summary judgment
addressing Issue No. 3 (Whether the CountY is equitably estopped from f'inding that SD 22-00 has expired).
Taylor has joined in North Bay's motion and believes that ~quitable estoppel provides an independent basis
for reversing the County's rescission. However, Taylor believes that the Board may resolve this case on the'
sole basis that Taylor's permit did not expire. '.
6 See RCW 90.58.140(7) (addressing burden in appeals of decisions to grant or deny a shoreline permit but
not in appeals of decisions to reScind a permit). . .'
, See Advance Resorts, Inc. v. Town of La Conner, SHB Nb. 90-91, Findings of Fact, Conclusions of Law
and Order (March jO, 1992), ("Advance Resorts Majority"), p. 9 ("Since this is an appeal of a rescission
rather than the granting or denial of a shoreline permit, the burden of proof is on the respondenf'); see a/so
id., Findings of Fact and Conclusions of Law, and Dissent ("Advance Resorts Dissenf'), p. 14 ("Such an
approach is in harmony with viewing this as an appeal of an enforcement action, where the burden is on the
governmental agency"); WAC 173-27-240 (stating that the SMA "provides for a variety of means of
enforcement. including civil and, criminal penalties, orders to cease and desist, orders to take corrective
action, and permit rescission" (emphasis added).) A copy of Advance Resorts is inc1ucted as Attachment 9 to
the Second Declaration of Duncan M. Greene. As noted in the Advance Resorts Dissent, the majority
decision in Adv'lnce.Resorts was. "only agreed to by three Board Members, arid therefore will not constitute
precedent in other cases." See Advance Resorts Dissent, p. 1. However, both the Majority and the Dissent in
TAYLOR RESOURCES, INC.'S MOTION AND DonlonDerr... .
MEMORANDUM IN SUPPORT OF SUMMARY 2025 First Avenue. Suite 500
JUDGME' NT 4 Se!lttle. WA 98121-3140
- (206) 382-9540
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Y:\WP\TAYWR\FOSSIAPPEAL. SHB 08-01011' MOTION SUMMARY lDGMT.FINAL.I20208.0G.OOC
l' the Respondent Intervenor in this case have the ultimate burden of pr.oving that the
2 County's rescission is consistent with the SMA, which authorizes rescission of a permit
I' .'
3 only "after a hearing. . . upon the finding that a permittee has not complied with
4 conditions ofapermit." RCW90.58.140(8).8'
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c.
Summary Judgment Standard
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"Summary judgment is a procedure available to avoid unnecessary trials on issues
that cannot be factually supported and could not lead to, or result in, a fav.orab1e outcome
to the opposing party~" Friends of the San Juans v. San Juan County, et al., SHB NO. 08-
005, Order on Summary Judgment (June 26, 2008) ("Friends"), at 9 (citing Jacobsen v.
State, 89 Wn.2d 104, 569 P.2d 1152 (1977)). The party moving for summary judgment
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11' must show that (1) there are no genuine issues of material fact and (2) the moving party is.
12 entitled to judgment as a matter oflaw. ld. at 9-10 (citing Magula v. Benton Franklin Title
. 13. Co., Inc., 131 Wn.2d 171, 182,930 P.2d 307 (1997)). A material fact is one that will
14 affect the outcome under the governing law. ld. (citing Eriks v. Denver, 118 Wn.2d 451,
15 456,824 P.2d 1207 (1992)).
16 If the moving party meets the 'initial burden of showing the absence ofan issue of
17 material fact, the burden shifts to the non-moving party. Id. (citing Young v. Key
18 Pharmaceuticals, Inc. 117 Wn.2d 216,225, 770 P.2d 182 (1989)). If the nonmoving party
19 then "fails to make a showing sufficient to esta~lish the existence of an element essential
20 to that party's case, and on which that party will bear the burden of proof at trial," .then the
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Advance Resorts agreed that, in appeals of decisions to rescind a penn it, the burden of proof is on the
respondent. See Advance Resorts Majority, p. 9; Advance Resorts Dissent, p. 14.
8 See Advance Resorts Dissent, p. 14 (holding that rescinding authority has the burden ofpr:oving that "the
action of the local government is consistent with the applicable master program and the provisions of
chapter 90.58 RCW, and the department's implementing reguJations").See also WAC 461-08-505(1)(c).
The County's Master Program and the Department of Ecology's implementing regulations provide no
standards for rescission.
TAYLOR RESOURCES, INC.'S MOTION AND
MEMORANDUM.IN SUPPORTOF SUMMARY
JUDGMENT - 5
&ordonDerr~
2025 First Avenue. Suite 500
Seattle. WA 98121-3140
(206) 382-9540
V:\WPlT A YLORIFOSSlAPPEAL - SHB OS-OIOI? MOTION SUMMAR V JDGMT.FINAL.12020S.DG.DOC
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1 trial court should grant the motion. ,Young, 112 Wn.2d at 225 (citing Celotex' Corp. v.
2 Catrett,477 U.S. 317, 322,106 S.Ct. 2548, 2552 (1986)).
3 Therefore, once Taylor has met its initial burden of showing the a~sence of an
4 issue of material fact, the burden shifts to the County and Intervenor to prove that the
5 County's rescission of Taylor's permit is. consistent with the SMA}
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There Are No Genuine Issues of Material Fact.
D..
7 . Because permit expiration was the County's only basis for its rescission ofSD 22-
"
8 00, and the record supports the Board's contrary finding that Taylor's permit did not
9 expire, there are no genuine issues of material fact and the Board should grant summary
. , ..
10 judgment in favor of Taylor finding that the County's rescission of Taylor's permit was
11 impermissible and Taylor's permit remains in effect.
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1.
Expiration was the sole basis for the County's rescission.
The County's Administrative Determination characterized the issue as follows:
The present issue involves whether the permit has expired. Planning
and Land Use Services has reviewed this matter and concludes that th~
per:mit was issued for five years, and that a one-year extension was
granted, thereby extending the life of the permit to six years.
Accordingly, the p~rmit has expired and further work at the site will
require application for and approval of a new shoreline substantial
development permit (SSDP).
Greene Decl., Attachment 5, p. 1. 10 While the County offers various rationales for its
determinatIon that the permit expired, it is Clear that its conclusion that SD 22-00 expired
is the sole basis for the County's finding that "further work at the site will require
,. ,..
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application for and approval of a new shoreline substantial development permit." See id.
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9 See id; A.dvance Resorts Dissent, p. ]4; WAC 46]-08-505(l)(c). .'
10 See also id: at 6 ("The permit that Tay]or obtained in 2000 expired pursuant to the applicab]e RCW,
WAC, PCC provisions and the Hearing Examiner decision. To continue operation of its geoduck farm atthis
location, Tay]or must obtain a new SSDP from the Hearing Examiner").
TAYLOR RESOURCES, INC. 'S MOTION AND
MEMORANDUM IN SUPPORT OF SUMMARY
JUDGMENT - 6
GordonDerr~
2025 First Avenue. Suite 500
Seattle, WA 98121-3140
(206) 382-9540
Y:IWPITA YLORIFOSSIAPPEAL - s~ OIl-OIO\P MOTION SUMMARY JDGMT.FINAL.12020B.DG.DOC'
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The record supports the Board's finding th3tTaylor's permit
did not expire.
Based on its review of portions of the Hearing Examiner record submitted by
2.
Taylor in response to the County's and Intervenor's mo~ions to dismiss, the Board
correctly found that Taylor's permit did not expir~., Order at 10 ("The County placedno
explicit time limitation on the ongoing nature of the operation in the permit conditions, ,
nor did it require a permit renewal at certain intervals"). As discussed in the, following
sections, the evidence cited 'by the Board, and the additional evidence submitted with this'
motion, demonstrates beyond any doubt that Taylor's permit did not expire.
a)
The language of SD 22-00 and the applicable statutory
provision, support the Board's rmding that the permit
did not expire.
12 The Board correctly found that Conditions 4 and 5 ~ere included in SD 22-00 as
13 standard, "boilerplate" language and "do not establish an expiration date for SD 22-00."
14 Order at 3-4,8-9, 10-11. Interpreting the language of Conditions 4 and 5, the Board
15 concluded that "[w]edo not read this boilerplate language to.limit the on-going use of the
16 permitted geoduck development to five years. "IId. at 1 I.
\. . ','
'17 The Board's finding is supported by RCW 90.58-.143(3), whicfuConditions 4 and 5
18 were intended to implement. Under the plain language' of the statute and Board decisions
19 interpreting this provision, the five-year time limit in RCW 90.58.143(3) applies only to
20 construction activities, not on-going uses or activities associated With a constructed
21 project. II This is true even though Condition 5 uses slightly different terminology than the
22 statute. Consistent with the Board's decision in Yale Estates, because these variations in
23 II See Taylor's Response t9lntervenor's Motion to Dismiss at 10-12(citing Yale Estates Homeowners
Assoc. v. Cowlitz County, SHB No. 03-012, Modified Order Granting Summary Judgment and Dismissal
24 (December 22,2003), WL 22813855 ("Yale Estates") at *8 (holding that RCW 90.58.143(3) and related
pennit conditions do not limit the duration of ongoing activities except those that constitute "construction"
25 activities)). '
TAYLOR RESOURCES, INC.'S MOTION AND
MEMORANDUM IN SUPPORT OF SUMMARY
JUDGMENT - 7
GordonDerr..
2025 First Avenue, Suite,500
Seattle, WA98121-3140
. (206) 382-9540
Y:IWPIT A YLORIFoSSIAPPEAL - SHB 011-0 I OIP MOTION SUMMARY JDGMT,FINAL.120208,DG,DoC
1 terminology cannot act to broaden. the applicability ofRCW 90:58.143(3), the Board's
2 inquiry should focus on the statutory language. See Yale Estates at *8.
3 Thus, the County's finding that Permit SD 22~60expired is inconsistent with the
4 plain language of both Conditions 4 and 5, as well RCW 90.58.143(3), the, statutory
5 provision on which these conditions are based.
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b)
Taylor's permit application materials forSD 22-00
support the Board's finding that the permit did not.
expire.
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The Board correctly found that "Taylor's application indicated the proposed.
startirigdate for the project would be summer 2000 and ~e estimated duration of the
activity would be 'on-going. '" Order at 2. The Board further found that Taylor had
"specifically indicated the intent to engage in ongoing operations at the Foss Farm site" in
its application materials. Id. at 10.
This Board and the courts have made clear in numerous decisions that application
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materials are highly relevant to the interpretation of a permit. 12 Under these authorities,
~) . Taylor's clear statement in its application that it intended to engage in "on-going"
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activities strongly supports the Board's finding that SD 22-00 did not expire.
c)
The County's Staff Report and testimony demonstrates
that the County did not intend the permit to expire.
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19 The Board correctly found that "[t]he Staff Report and testimony frOJ;Il staff
20 . indicated the project would involve planting baby geoducks in PVC pipes for cultivation
21 and subsequent harvest after approximately five years" and that "[t]he company would
22. then 'repeat the process. '" Order at 3. The Board further foUnd that [t]he testimony at
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hearing acknowledged that Taylor's request vv.as foron-going activity.l' Id. As a result of
12 See Taylor's Response to Intervenors' Motion to Dismiss at 7-8 (citing Board and court' decisions holding
that permit interpretation is not limited to review ofthe permit document itself and includes review of
application materials and other documents).
TAYLOR RESOURCES, INC.'S MOTION AND
MEMORANDUM IN SUPPORT OF SUMMARY
JUDGMENT - 8
GordonDerr~
2025 First Avenue, Suite 500
Seattle, WA98121-3140
(206) 382-9540
Y:\WP\T A YLORIFOSSlAPPEAL _ SHB OB-OlOIP MOTION SUMMARY lDGMT.I'INAL.12020B.DG.DOC
1 this evidence, the Board concluded that "Pierce County fully understood the farming to
2. include planting, cultivating, and harvesting geoducks in 5-7 year cycles." Id. at 10. The
3 County's repeated acknowledgment that Taylor intended tb engage in on-going activities
4. demonstrates that it did not intend SD 22-00, as originally issued, to expire.
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The County's failure to take action five years after SD
22-00 was issued demonstrates that the County did not
intend the permit to expire.
,The Board correctly found that "Pierce County did not pursue the issue ofpemiit
d)
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expiration at the end of five years (January 2006) or at the end .of six years (January
2007)" and that "[g]eoduck farming continued unabated at the Foss Farm location well
past the alleged five or six year term of the permit with full knowledge of Pierce County."
11' Order at 11-12. If the County had intended SD 22-00 'to expire afterfive years, it should
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have taken enforcement action when geoduck fa.rming continued beyond the alleged
expiration date.
The Board further found that, at the time SD 22-00 was issued, Pierce County "had
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15 no formal administrative position" regarding the' duration of geoduck permits ~d that the
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16 . County did not engage in a formal review of its policy on geoduck farming permits until
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2007 when "citizen opposition to geoduck farming became more intense." Id. at 5, 1.2.13
13 As noted by the Board, the County's changed interpretation regarding permit expiration is not entitled to
deference. Order at 12 (citing Sleasman v. City of Lacey, 159 Wn.2d 639',646-47, 151 P.3d 990 (2007)).
Furthermore, the County's'application of its changed interpretation "in a retroactive fashion to Taylor .
Resources' previously permitted geoduck operation" is contrary to the principle of "finality and certainty in
land use decisions." See Order at 12; Shawl et al. v. Stevens County, SHB No. 96-21, Opinions and Order on
Motions to Dismiss (October 2, 1996), 1996 WL 660464 (stating that 1976 amendments to SMA
"demonstrate a conscious effort to balance the interests of the public in pursuing appeal of a shoreline
permit and the interests of applicants in achieving finality and certainty in land use decisions"); Manza v.
City of Ltikewood, SHB Nos. 02-005 & 02-006, Concurrence and Dissent (January 31, 2003), 2003 WL
283760 (outlining four recent Washington Supreme Court decisions addressing finality in land use
decisions). See also Skamania County v. Columbia River Gorge Com 'n, 144 Wn.2d 30, 26 PJd 241 (2001)
(recognizing "a strong public policy supporting administrative finality in land use decisions"); Deschenes v.
liordonDerr...
2025 First Avenue, Suite 500
Seattle, WA98121-3140
(206) 382-9540
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TAYLOR RESOURCES, INC.'S MOTION AND
MEMORANDUM IN SUPPORT OF SUMMARY
JUDGMENT - 9
V:\WP\T A YLORIFOSSlAPPEAL - SHB 08-0 I OIP MOTION SUMMARY JDOMT.FINAL.12020B.DO.DOC
")
.1' Thus, the Board's finding that SD 22-00 did nat e?'}>ire is also supparted by evidence
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2. indicating that the impetus for the CoUnty's Administrative Determinatian was not the
3 permit itself but citizen oppositian.
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e) .
Statements by County Staff with authority over the
project demonstrate that the County did not intend the
permit to expire.
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The Board carrectly faund that, while develaping thefarm, 1;'ay10r "had
conversations wilh Ty Booth, the assigned p1annerfor Pierce COunty, in which he
indicated tha~ance,the farm was established within a five-:year periad, the farming could
cantinue an beyond the canstruction period." Order at 4. The Board found that "[t]his
. . I
view was alsa canveyed hi writing ta .one .of the pr6ject .opponents 'by Vicki Diamond,
Supervisor .of Current Planning far Pierce Caunty, wha indicated that there was no
expiratian of a shareline permit for geaduck cultivatian once the use Was initiated and
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established.~' Id. These stateme~ts by County employees "in pasitians of autharity over
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the particular praject" further demonstrate that the Caunty did nat originally intend ~D
22-00 to expire. See Order at 11.
1)
The County's actions on other permits demonstrate that
the County did not intend SD 22-00 to expire
18. That the County did nat intend SD 22-00 taexpire is also supparted by evidence in
19 the recard addressing Caunty actions 00: other permits. Far example, when the Caunty
20 intended other shareline permits to expire, it included clear language stating that "both the,
21 Shareline permit and the Unclassified Use Permit and a Shoreline Substantial
22 Develapment Permit shall autamatically became null and vaid an September 15, 1982,"
23 .or that "[a]pproval shall be far no mare than five years from the effective date .of this
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King County, 83 Wn.2d 714, 521 P,2d 1181 (1974) ("If there were not tinality:no owner ofland would ever
be safe in proceeding with development of his property.")
TA YLOR RESOURCES, INC.'S MOTION AND
MEMORANDUM IN SUPPORT OF SUMMARY
JUDGMENT - 10
GordonOerr",
2025 First Avenue, Suite 500
Seattle, WA 98121-3140
(206) 382-9540
Y:\WP\TAY1.0RIfOSS\APPEAL _ SHB OB-OI01P MOTION SUMMARY lDGMT.F1NAL,12020B.DG,DOC
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1 decision," Second Greene Declaration, Attachment 3, p. 7; id., Attachment 4, p. 7. If the
2 County intended SD 22-00 to expire five years after it was issued on December 28, 2000,
3 it could have used similarly explicit condition language.
4 In fact, in a different Taylor geoduck permit, the County included express
5 condition language requiring a reexamination of the permit after a specified pe~od of
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6 time. See Order Denying Motion to Dismiss at 10-11. In that permit, in addition to the
7 boilerplate language of Conditions 4 and 5 in SD 22-00, the County included condition
8 language stating that "[t]his project shall be reviewed in five years from the effective date
9 of approval by the Hearing Examiner to examine the impacts of operations and each of
10 these conditions." Second Greene Decl., Attachment 5, pp. 3-4; id., Attachment 6, pp. 15-
11 16 (Conditions 1.A-B), p.1S (Condition 24).14 The fact that the Examiner included,both
12 . the "boilerplate'~ condition language as well as a provision to. reassess those permits every
13 five years demonstrates that ,the boilerplate language in Condition 5 of SD 22-00 was not
17 In its November 7 Order, the Board noted "the importance of clearly delineating in
18 the permit any conditions a local government believes are necessary to address valid
'19 concerns associated with a permitted use." Order at 11, n.2: In a recent deposition,Vicki
20 Diamond, Supervisor of Pierce County Current Planning, acknowledged that the language
21 of Conditions 4 and 5 in SD 22-00 was unclear and that, in the weeks leading up to the
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14 The permits referenced in the Second Greene Declaration were also appealed to the SHB. The SHB held
a hearing on those appeals on November 24,2008, The only issues in those appeals related to a condition
addressing hours of operation~ "
IS The reference to "second" and "third planting cycles" in other conditions in that permit similarly
recognizes that the permit was for ongoing activities and did not expire. [d. at 6, 14 (Conditions 34 - 36).
TAYLOR RESOURCES, INC.'S MOTION AND
MEMORANDUM IN SUPPORT OF SUMMARY
JUDGMENT - 11
GordonDerru.
2025 First Avenue, Suite 500
Seattle, WA 98121-3140
(206) 382-9540
Y:\WP\TA YLOR\FOSS\APPEAL - SllB08-010\P MOTION SUMMARY JOGMT.FINAL.120208.DG.DOC
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1 County's issuance of the Administrative Detemiination,the County had developed clearer
2' language regarding expiration to be included in all future Shoreline Substantial
3. Development Permits:
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. . Q: . Was the concern that there was confusion with regard to that.
language and the county needed to develop lan~age that was ch~are~?
A: Yes.
Second Greene Declfuation, Attachment 7, pp. 54-57; id., Attachment 8.
In summary, the Board's finding thatSD 22-00 did not expire is supported by
undisputed evidence in therecord demonstrating that:
- The permit itself did not include an expiration provision;
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Taylor applied for a permit authorizing "ongoing" operations;
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The County, in recommending permit issuance; rec()gnized Taylor's
request for a pemiit authorizing ongoing operation~; .
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The County took no action when Taylor continued farming after the
alleged expiration date; . .
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CountY staff told Taylor and the public that the. permit did not
expire; and .
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When the County intended permit expiration or reassessment, it
included clear permit language to achieve that result, none of whi~h
was included in SD 22-00. .
19 Based on this undisputed record, the Board should affirm its finding that SD 22-00
20 . did not expire ~d rule that the rescission of Taylor's permit, which was based solely on
21. the County's conclusion that SD 22-00 expired, was not warranted.
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E.
Taylor is Entitled to Judgment As a Matter of Law.
As previously noted, the SMA authorizes issuance of a permit "upon the finding
that a permittee has not complied with conditions ofa permit." RCW 90.58.140(8).
TAYLOR RESOURCES, INC.'S MOTION AND
MEMORANDUM IN SUPPORT OF SUMMARY
JUDGMENT - 12
GordonDerru.
2025 First Avenue. Suite 500
Seattle. WA 98121-3140
(206) 382-9540
Y:\WPIT A YLORlfOSSlAPPEAl. . SHB 08-01 ()IJ> MOTION SUMMARY lDGMT.FINAl..120208.DG.DOC
1 Because Taylor is in compliance with all conditions of Permit SD 22-00, the County's
2 rescission was inconsistent with the SMA and should be reversed. 16
3 The only conditions at issue in this appeal are Conditions 4 and 5. The Board
4 already found in its November 7 Order that Condition 4 "is directed to a pelJIlit holder's
5 responsibility to diligently initiate and pursue construction of any improvements approved
6 by the permit. It is not disputed that Taylor timely began construction of project
7 improvements in this case." Order Denying Mot~on to Dismiss at 8. The Board further
8 found that Condition 5 "adqresses the topic of project completion" such that "[i]f a permit
9 holder has not completed the project within .five years, the local government is charged
10 with reviewing the permit and extending it or terminating it," and that "[t]he.language of
11 Condition 5 does not create T a] self-executing system for expiration of shoreline permits."
12 ld. l!t 8-9. The Board's findings confirm that Taylor completed the project,.including
13 surveying and planting the entire farmable area cmd maintaining the farm with protective
14 netting, within five years. Id. at 4, 9. The Board's findings regarding the meaning of
15 Conditions 4 and 5, anc\ its conclusion that "[t]he evidence is undisputed that the farm was
I,
16 constructed and established during the first five years of the permit" provides an adequate
17 basis for a finding that Taylor remains in compliance with all conditions of Permit SD 22-
18 00. Id. at 11. Those findings are also supported by the additional evidence submitted with
19 . this motion.
20 Thus, because the Board has already found Taylor to be in compliance with
21 Conditions 4 liffid 5, and the County has not alleged noncompliance with any other
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16 The County's rescission was also inconsistent with the SMA because the County failed to hold a hearing,
as required by RCW 90.58.140(8), before rescinding Taylor's permit. While this procedural defect
underscores the impropriety of the County's rescission, a hearing would not cure the fundamental flaw in
the County1srescission - namely, that therescission was based on the County's incorre.ct determination that
Taylor's permit expired. Thus, this motion requests that the Board reverse the County's determination
ratherthan remand this matter to the County for a hearing.
TAYLOR RESOURCES, INC.'S MOTION AND
. MEMORANDUM IN SUPPORT OF SUMMARY
, JUDGMENT - 13
GordonDerr",
2025 First Avenue, Suite 500
Seattle, WA 98121-3140
(206) 382-9540
Y:IWPIT A V1.0RIFOSSlAPPEAL - SHB OS-O 10IP MOTION SUMMARY JDGMT.FINAL.12020S.DG.DOC
1 conditions of SO 22-00, the County's attempted rescission of Taylor's permit is
2. unsupported and should be reversed.
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IV. REQUEST FOR RELIEF
. ) .
For the reasons discussed herein, Taylor asks the Board to Issue an order fin<;iing
that SO 22-00 remains in effect andreversing the County's rescission of Taylor's permit.
RespectfW1y submitted this 1 st day ofOecember, 2008.
,
TAYLOR RESOURCES, INe.'s MOTION AND
MEMORANDUM IN SUPPORT OF SUMIviARY
JUDGMENT - 14
GordonOerr...
2025 First Avenue, Suite 500
Seattle, WA 98121-3140
(206) 382~9?40
Y:IWPITA YLORIFOSSlAPPEAL - SHB 08-01OIP MOTION SUMMARY JDGMT.F1NAl..120208.DG.DOC
BEFORE THE SHORELINES HEARlNGS BOARD
STATE OF WASHINGTON
TAYLOR RESOURCES, INC. a Washington ) .
corporation, also known as TAYLOR .)
SHELLFISH FARMS, and NORTH BAY)
PARTNERS LLC; M. LESLIE FOSS, )
)
PetitionerslIntervenors, )
. v.; )
)
PIERCE COUNTY, and COALITION TO - )
PROTECT PUGET SOUND HABITAT, )
)
RespondentJIntervenor. )
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17 I, DUNCAN M. GREENE, declare as follows:
i
RECEIVED
DEe 02 2008
BRICKllN NEWMAN DOLO. lLP
No. SHB No. 08-010
SHB No. 08-017
SECOND DECLARATION OF
DUNCAN M. GREENE
18 1. That I am over the age of 18 years and make this declaration based upon my
19 personal knowledge.
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2.
3.
I am one of the attorneys for Taylor Resources, Inc. in this matter.
Attached hereto are true and correct copies.ofthe following.docurnents:
Attachment 1: Petition for Review (Land Use Petition Act), filed in
Thurston County Superiro Court under Cause No. 08-2-00904-9 (without
exhibits ).1 .
I Except where otherwise indicated, al1 references herein to exhibit numbers are to exhibits admitted by the
Hearing Examiner at the hearing below in Pierce County Administrative Appeal Case No. AAI6-07,
Application No. 612676. . ^
SECOND DECLARATION OF DUNCAN M. GREENE - 1 GordonDerr...
Y:IWPITA Y1.0RIFOSSIAPPEAL - SHB 08.01OIP SECOND DEC OF DUNCAN M GREENE.120108.DG DOC
2025 First Avenue, Suite 500
Seattle. WA98121.3140
(206) 382.9540
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Attachment 2: Stipulation and Agreed Order Regarding Intervention and
S~y, Thurston County Cause No. 08-2-00904-9. .
Attachment 3: Pierce County Hearing Exaririner Consolidated Report and
Decision, Case No. UP12-81 and SD20-81 (Corliss Company) dated
January 18, 1982 - Exhibit 1 Q. . .
Attachment 4:. Pierce County Hearing Examiner Report and
Decision, Case No. SD(C) 6-89/ UP4-89 (Mosby) dated August 3,1989-
Exhibit 10.
Attachment 5: Pierce County Hearing Examiner Decision on
Reconsideration, No. SD53-05 (Meyer) and SD55-06 (Stratford), dated
January 19,2007 - Exhibit 69
Attachment 6: Pierce County Hearing Examiner Amended Report and
Decision, No. SD53-05 (Meyer) and SD55-06 (Stratford), dated January
19, 2007- Exhibit 70
Attachment 7: Excerpt from Deposition Upon Oral Examination of Vicki
M. Diamond, October 28, 2008.
AttachInent 8: Exhibit18 submitted at Deposition Upon Oral Examination
of Vicki M. Diamon~, October 28,2008 .
Attachment 9: Advance Resorts, Inc. v. Town of La Conner, SHB No. 90-
91, Final Findings of Fact, Conclusions of Law and Order (March 30, ,
1992)
I certify under penalty of perjury under the laws of the State of Washington that the
foregoing is true and correct.
EXECmw.tSeawe, W~o,not~ .
Duncan M. Greene, Declarant
SECOND DECLARATION OF DUNCAN M. GREENE - 2
. GordonDerr...
202S First Avenue, Suite SOO
Seattle, WA 98121-3140
(206) 382-9540
Y:\WP\TA YLOR\POSSIAPPEAL - SHB OB-OIOIP SECOND DEC OF DUNCAN M GREENE.12010B.DG.DOC