IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON

FULLER STYLE, INC., a Colorado 

### ) corporation, 

### )

Appellant, 

### ) No. 79181-8-I v. 

### ) DIVISION ONE CITY OF SEATTLE, aWashington 

### ) municipal corporation, 

### ) ) Respondent, 

### ) and 

### ) CANALVIEW PROPERTIES, L.L.C., a 

### ) PUBLISHED OPINION Washington limited liability company, 

### ) ) FILED: December23, 2019 Other Necessary 

### ) Party.

_________________________________________________________________________________) STEADY FLOATS, INC., aWashington 

### ) corporation, 

### ) ) Appellant,
v. 

### ) CITY OF SEATTLE, a Washington 

### ) municipal corporation, 

### )

Respondent, and 

### ) COMMERCIAL MARINE CONSTRUC- 

### ) TION CO., aWashington corporation, 

### )

Other Necessary 

### ) Party.No. 79181-8-112

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 ofConstruction and Inspections’ (SDCI) orders. In the orders, the SDCI concluded that replacement of previously existing floating on-water residences (FOWRs) constitutes substantial development underthe Shoreline ManagementAct of 1971 (SMA), chapter 90.58 RCW, and the City’s corresponding Shoreline Management Plan (SMP). Specifically, the SDCI determined thatthe replacements were not subjectto the normal maintenance or repairexemption 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 superiorcourt, which upheld the SDCI’s orders. We conclude that Fuller Style and Steady Floats failed to meettheir burdens to show a violation ofthe Land Use Petition Act (LUPA), chapter 36.70C RCW, and that 2No. 79181-8-1/3

the SDCI did not err in its interpretation ofthe SMA’s definition of“development” or in its application ofthe lawto the facts. Therefore, we affirm. BACKGROUND Shoreline ManagementAct Washington’s legislature enacted the SMA “to insure the development of [the state’s] shorelines in a mannerwhich

. . . 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 ofthe state and theiraquatic 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” ofthe state, i.e., “the water areas ofthe state” and “theirassociated shorelands, togetherwith 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. ~ RCW 90.58.080. An SMP is a comprehensive use plan, ‘constitut[ing] use regulations forthe various shorelines ofthe state.” RCW 90.58.030(3)(b); RCW 90.58.100(1). The City codified its SMP in its land use code.

.~ 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 ofthe City overwhich it hasjurisdiction.” SMC 23.60A.010(A). And “[a]ll property located within the Shoreline District is subject both to the standards ofthe 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 consistentwith (1) “[p]rotect[ing] the ecological functions ofthe shoreline areas;” (2) “[ejncourag[ingj

3No. 79181-8-114

water-dependent uses;” (3) “[p]rovid[ing] for maximum public accessto, and enjoyment ofthe shorelines ofthe City;” and (4) “[p]reserv[ing], enhanc[ing], and increas[ing] views ofthe water.” SMC 23.60A.002(B). Development on shorelines must be consistentwith the policies and purpose of the SMA as adopted in the applicable SMP or ‘shall not be undertaken.” RCW9O.58.140(1); SMC 23.60A.O1O. Specifically, an SSDP “is required priorto 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 FOWR5. In 2014, the legislature adopted special SMA provisions for FOWR5. A FOWR is “anyfloating structure.

. . that is designed or used primarily as a residence, has detachable utilities, and is the subject ofa lease or sublease at a marina.” SMC 23.60A.912. The owner ofa pre-existing FOWR must verifythe FOWR with the City in orderto obtain “legal establishment ofa [FOWR] pursuant to the requirements” ofthe City’s SMP. SMC 23.60A.203(D). Once verified, a FOWR is a conforming use—authorized to remain overshoreline waters, despite nonwaterdependent uses not being preferred uses in the Shoreline District underthe SMP—ifpriorto July 1, 2014, the floating structure “[w]as legally established as a [FOWR]” and “[w]as moored pursuantto a lease orownership interest at a marina.

. within the City.” SMC 23.60A.944; SMC 23.60A.203(B). Averified FOWR is not subject to SSDP requirements where the development involves normal maintenance or repairof the structure. SMC 23.60A.203(C)(1).

4No. 79181-8-1/5 Facts

In Novemberand December of2017, Fuller Style and Steady Floats sought normal maintenance or repairexemptions forthe replacement ofthree FOWRs: FOWR 873, FOWR 811, and FDWR 801. It is unclearwhetherthe FOWRs have been constructed. However, according to the applications submitted to the SDCI, Steady Floats would construct FDWR 873’s replacement atthe 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 forall three FOWRs would be constructed landward ofthe Shoreline District boundary. The replacement ofthe previous FOWRs and moorage ofthe newly constructed FOWRs would occurwithin the Shoreline District. Each FOWR replacementwould be launched using a vessel launch system and towed to its moorage, and thereafter, FOWRverification with the Citywould be updated pursuantto SMC 23.60A.203(C)(1)(d). The SDCI denied all three applicationsforexemptions and directed the parties to obtain an SSDP foreach replacement FOWR. Specifically, the SDCI concluded that the replacementofthe FOWRs constitutes substantial development and the normal maintenance and repairexemption does not apply because replacement is notthe
common method of repairfor FOWR5. Fuller Style and Steady Floats broughtthree LUPA petitions, which they later consolidated, challenging the SDCI’s orders. The superior court denied the petitions following oral argument. FullerStyle and Steady Floats appeal.

5No. 79181-8-1/6 ANALYSIS Standard ofReview The parties do not contestthatthe denial ofan SSDP exemption is a land use decision. And LUPA governs our review of land use decisions. Ellensburci Cement Prods., Inc. v. Kittitas County, 179 Wn.2d 737, 742, 317 P.3d 1037 (2014); RCW 36.70C.030. This court stands “in the same position as the superior courtwhen reviewing”the administrative decision underlying a LUPA petition. Ellensburq Cement, 179 Wn.2d at 742. Under LUPA, the petitioner“carrie[s] the burden ofestablishing one ofthe standards setforth” in RCW 36.70C. 130(1), two ofwhich are at issue in this appeal. First, undersubsection (b), the petitioner meets its burden by establishing that “[t]he land use decision is an erroneous interpretation ofthe law, after allowing forsuch deference as is due the construction ofa law by a localjurisdiction with expertise.” RCW 36.70C.130(1)(b). When determining whetherthe petitioner has met its burden undersubsection (b), the “[i]nterpretation ofa statute is a question of lawthatthis court reviews de novo.” Ellensburq Cement, 179 Wn.2d at 743. Second, undersubsection (d), the petitioner meets its burden by establishing that “‘[t]he land use decision is a clearly erroneous application ofthe lawto the facts.” Ellensburq Cement, 179 Wn.2d at 743 (quoting RCW 36.70C.130(1)). That is, “[a] finding is clearly erroneous.

. . when, although there is evidence to support it, the reviewing court on the record is leftwith the definite and firm conviction that a mistake has been committed.” Phoenix Dev., Inc. v. City ofWoodinville, 171 Wn.2d 820, 829, 256 P.3d 1150 (2011). As stated above, the City’s SMP is implemented to (1) “[p]rotectthe ecological

6No. 79181-8-1/7

functions ofthe shoreline areas[,J” (2) “[e]ncourage water-dependent uses[,]” (3) “[p]rovide for maximum public access to, and enjoyment ofthe shorelines[,]” and (4) “[p]reserve, enhance, and increase views ofthe water.” SMC 23.60A.002(B). To that end, the SMAand the City’s SMP are “exempt[] from the rule ofstrict construction” and must “be liberally construed to give full effectto the objectives and purposes” ofthe SMA. RCW 90.58.900; SMC 23.60A.014; Buechel V. Dert of Ecology, 125 Wn.2d 196, 203, 884 P.2d 910 (1994) (“The SMA is to be broadly construed in orderto protectthe state shorelines as fully as possible.”). Deference and the SMA As an initial matter, FullerStyle and Steady Floats contend thatthe Citywas not entitled to deference because the statute is unambiguous. We agree thatthe statute is unambiguous, butwefurtherconclude thatthe amount ofdeference owed is immaterial to this disposition. It is a longstanding principle ofadministrative lawthat administrative agencies possess special expertise with regard to “interpreting and applying

. . . ambiguous statute[s] in harmonywith the policies and goals the legislature soughtto achieve.” Hama Hama Co. v. Shorelines Hr’gs Bd., 85 Wn.2d 441, 448, 536 P.2d 157 (1975) (emphasis added). Under RCW 36.70.C. 130(1 )(b), a courtwill deferto a city’s construction ofwhat is consistentwith its ordinances when reviewing whether an interpretation is “erroneous,” and under RCW 36.70C.130(1)(d), a courtwill deferto a city’s implementation of its comprehensive plan, such as its SMP. See, ~ Phoenix Dev., Inc., 171 Wn.2d at 830 (giving deference to the City’s construction ofwhat is consistentwith its comprehensive plan and for its implementation ofthe comprehensive

7No. 79181-8-1/8

plan under RCW 36.70C.130(b) and (d)). However, an agency’s interpretation is not “absolutely controlling’ on the court” and deference is owed onlyto the interpretation of ambiguous statutory language. Brown v. City ofSeattle, 117 Wn. App. 781, 790, 72 P.3d 764 (2003) (quoting Hama Hama Co., 85 Wn.2d at448). Here, the parties disagree on the interpretation ofSMC 23.60A.908, which mimics RCW 90.58.030(3)(a) and defines “development” for purposes ofSSDPs. However, the City does not contend thatthe definition of“development” under RCW 90.58.030(3)(a)—orSMC 23.60A.908—is ambiguous. Thus, with regard to its interpretation ofSMC 23.60A.908, the City is not owed deference for interpretation ofan unambiguous statute. Additionally, any deference owed to the SDCI’s application ofthe lawto the facts is not determinative ofthe issues on appeal. Specifically, even without deference, as discussed below, we conclude thatthe City’s determinations were consistentwith the SMA and that FullerStyle and Steady Floats failed to meettheir burden in establishing a violated standard under LUPA.

Replacement FOWRs and “Substantial Development” Fuller Style and Steady Floats assert thatthe SDCI erred by concluding that SSDPs are required for each ofthe FDWR replacements. Specifically, Fuller Style and Steady Floats contend thatthe replacements do not constitute developments forwhich SSDPs are required. The City’s determination that replacement ofthe existing FOWRs constitutes construction orexterior alteration is neitheran erroneous interpretation of the law nor a clearly erroneous application ofthe lawto the facts. Therefore, we affirm. Under RCW 90.58.140, as discussed above, ‘[nb development may occuron a shoreline ofthe state unless it is consistentwith the policy ofthe SMA and a permit is

8No. 79181-8-1/9

first obtained.” Samuel’s Furniture, Inc. v. Dept of Ecology, 147 Wn.2d 440, 448, 54 P.3d 1194, 63 P.3d 764 (2002). Underthe City’s SMP, “[nb development shall be undertaken, no shoreline modification shall be made, and no use.

. . shall be established in the Shoreline District unless

. . . it is consistentwith the policy ofthe [SMA] and the regulations ofth[e SMP].” SMC 23.60A.012. Moreover, the restriction
on “development” within the Shoreline District “applies even if no shoreline substantial development permit is required.” SMC 23.60A.012. “Development’ means a use consisting ofthe construction orexterior alteration ofstructures,

. . . placing of obstructions; orany project ofa permanent ortemporary naturethat interferes with the normal public use ofthe surface ofthe waters.” SMC 23.60A.908. And all developments must obtain SSDP5, unless the City “determines the development is not substantial development or has issued an exemption.” SMC 23.60A.020(A)(1). Here, the City concluded that (1) the replacement FOWRs were not exempt underSMC 23.60A.020(C)(1) allowing for normal repair1 and (2) the replacement FOWRs constitute substantial developments. We agree with the City’s determination. First, these structures will involve “exterioralteration of [a] structure[ ]“ because the replacement FOWRs will alterthe exterior ofthe original FOWR. ~ SMC 23.60A.908. Development does not require thatthe actual construction workthat alters the exterior
occurwithin the Shoreline District. Indeed, the exterioralteration to a structure located within the shoreline by replacementwith an entirely newstructure is an alteration for

• purposes ofthe City’s SMP. The undisputed facts establish that each replacement structure differs

1 Fortwo years, following the SMP’s effective date, the SDCI did not require replacement FOWRs to seek SSDPs. 9No. 79181-8-1/10

substantiallyfrom the existing FOWR itwill replace. Specifically, the three replacement FOWR5 are taller, larger, and shaped differentlythan the pre-existing FOWR5. For instance, as shown in figure 1 below, FDWR 801 will resemble a modern home, be over 120 square feet largerand 13 feettaller, replace a boat-like structure FOWR, and include newfeatures like an exterior spiral staircase.2



# tz-~

Figure 1: FOWR 801 Original Structure and Proposed Replacement FOWR 811 alsowill resemble a modern home, be over 120 square feet larger, and replace a boat-like structure. And FOWR 873 will be 4 feettaller, 120 square feet larger, and replace a FOWR that no longerexists because it began to sink. Both FOWR 801 and 811 include an added level. Thus, these replacement FOWRs will involve significant exterioralterations ofthe pre-existing structures within the Shoreline District.Furthermore, “[ojurduty in conducting statutory interpretation is to ‘discern and implement’ the legislature’s intent.” Ellensburg Cement, 179 Wn.2d at 743 (quoting State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003)). And an unambiguous statute’s

2 Figure 1 is taken from the City’s response brief in the superiorcourt. 10Proposed replacement:23 FOWR

### ~SO1
origilia2



# 1

,:.~No. 79181-8-I/li

“plain meaning may be gleaned ‘from all thatthe Legislature has said in the statute and related statutes which disclose legislative intent aboutthe provision in question.” Ellensburg Cement, 179 Wn.2d at 743 (quoting Dep’t of Ecologyv. Campbell & Gwinn, LLC, 146 Wn.2d 1, 11, 43 P.3d 4 (2002)). To this end, the SMA and the City’s SMP should be interpreted considering the impactofa development on the shoreline, not simply construction oralteration in isolation. This interpretation is in line with legislative intent: the SMA and the City’s SMP are intended to address more than the ecological
concerns of pollutants resulting from physical construction. Specifically, the SMA and SMP are intended to preserve and enhance views ofthe shoreline, and protect public
uses. It does not matterwhere the construction occurs because, here, what happens at the shoreline is the same. Importing replacement FOWR5 that differ in this magnitude from the original FOWRs significantlyalters the shorelines, the shoreline’s views, and the shoreline’s uses. Additionally, the legislature enacted FOWR exemptions to “[p]reserve the existence and vitality of current, floating on-water residential uses.” LAWS OF 2014, ch. 56, 

### § I (emphasis added). The legislation was not intended to allow
newstructures that are entirely differentto take the place of previously existing FOWRs. Additionally, FOWR 811 will not be moored in the same location as the pre-existing FOWR and thus changes the view and use in a new location, which permits moorage of FOWRs. Therefore, we conclude thatthe City’s determination—thatthese replacement FOWRs involve construction or exterior alteration—does not leave us with the definite and firm conviction that a mistake has been committed. Because we conclude thatthe replacement ofthese FOWR5 fits within the definition of“development” as construction, exterioralteration, orobstruction of public

11No. 79181-8-1/12

use and because FullerStyle and Steady Floats concede thatthe replacement FOWRs
are substantial, we conclude thatthe City did not err in requiring SSDP5 forthe replacement FOWR5. Fuller Style and Steady Floats disagree and contend that even though the replacement FOWR5 are developments, they are not developments within the shoreline. Specifically, Fuller Style and Steady Floats argue that ‘as a matterof law[,] the construction ofthose structures outside ofthe shoreline district is not development forwhich a substantial development permit must be obtained.” Fuller Style and Steady Floats, in effect, assertthatthe SMA and the SMP cannot havejurisdiction overthe construction oftheir FOWR5 because it is not overthe Shoreline District. However, the definition ofdevelopmentdoes not state that construction orexterior alteration ofa structure must be completed within the Shoreline District. Instead, it states that a “use consisting ofthe construction or exterioralteration [of] a structure[ ]“ is a development. SMC 23.60A.908. The assertion that it must be construction overthe shoreline lacks statutory support. However, to supporttheir conclusion, Fuller Style and Steady Floats distinguish Barryv. Department of Ecolociy, where the Shoreline Hearings Board concluded that the placement of recreational parktrailers (RPTs) constituted development underthe SMA. No. 12-008, 2013 WL 1294431 (Wash. Shorelines Hr’gs Bd. Mar. 14, 2013) (Findings of Fact, Conclusions of Law, and Order). Specifically, the board determined that “[pjlacing the RPTs

. . . constitutes ‘placing ofobstructions’ in the shoreline” and thatthe construction ofstairs and the addition of“skirting and two-by-fourframework

. . constructed around the bottom ofthe RPTs, constitute ‘construction oralteration of

12No. 79181-8-1113

structures.” Barry, 2013 WL 1294431 at *4 Fuller Style and Steady Floats argue that in Barry, the board did not conclude thatthe construction ofthe RPTs, which occurred outside ofthe Shoreline District, was developmentfor purposes ofSSDPs. This argument is unpersuasive. In Barry, the board neither reached—nor did it need to reach—the issue because there 

### was actual construction that occurred within the Shoreline District. 2013 WL 1294431. Here, while there is no physical construction within the Shoreline District, it does notfollowthat no developmentwill occur within the shoreline. Thus, we are not persuaded. Absolute Right As afinal matter, Fuller Style and Steady Floats contend thatthere is an absolute rightto replace, expand, and relocate structures. We disagree. First, many rights that exist are subjectto permitting requirements. Fuller Style and Steady Floats acknowledge thatthe City may regulate FOWR construction and placement. Butthey argue thatthe City and the SDCI’s “authority neither compels nor allows SDCI to applythe plainly inapplicable requirements ofthe [SSDP} process to FOWR replacement.” As an initial matter, as discussed above, the SSDP process is not inapplicable to the replacement of FOWRs. Additionally, Fuller Style and Steady Floats cite no authorityto support a conclusion that permitting requirements are inconsistent with their rights. Furthermore, contraryto Fuller Style and Steady Float’s contentions, the results
are not absurd. The City does not contend that everytime a FOWR is relocated itwill need an SSDP. Rather, ifa relocation falls within the definition ofdevelopment by, for example, substantially changing the views orobstructing normal public use where it

13No. 79181-8-1114

previouslywas not obstructed, then a permit is required. Without oversightthrough the permitting process, the City cannot knowwhatthe impacts ofthe proposed replacement FOWRwill be. And without knowing the impacts, the City is unable to discern whether the replacement FOWR is consistentwith the SMA and the SMP. Thus, we conclude thatthe City properly required SSDPs forthese replacement FOWRs. We affirm. 

# 4~~./A 

# d

WE CONCUR:

14