### FILED OCT.22, 2013 In the Office ofthe ClerkofCourt WA StateCourtofAppeals, Division III

IN THE COURT OF APPEALS OFTHE STATE OF WASHINGTON DIVISION THREE MARKAND NANCY MARLOW, husband ) No. 31013-2-111 and wife, ) ) Appellants, ) ) 

## v. ) ) UNPUBLISHED OPINION DOUGLAS COUNTY, a subdivision ofthe ) State ofWashington, ) ) Respondent. ) BROWN, 

### J.

- Mark and Nancy Marlow appeal the Douglas County Superior Court's denial oftheir land use petition underthe Land Use Petition Act (LUPA), chapter 36.70C RCW, concerning improvements to their Columbia Riverwaterfront property purchased in 1997. In 2011, Douglas County (County) issued a notice ofland use violation and orderto comply (NOV). A hearing examinerfound the Marlows had violated, inter alia, the Shoreline ManagementAct (SMA), chapter 90.58 RCW; section 173-27WAC (Shoreline Permit and Enforcement Procedures); and the Douglas County Shoreline Master Program (SMP). The Marlows contend here asthey did atthe superior court (1) the hearing examiner lacked legal authority orjurisdiction to impose injunctive relief, (2) the proceeding was barred by the statute oflimitations, (3) theNo. 31013-2-111 Marlow v. Doug/as County hearing examiner misallocated the burden ofproof, (4) the hearing examinerwrongly interpreted the law regarding shoreline exemptions, and (5) evidentiary error. Wefind
no error, and affirm. FACTS In 1997, the Marlows bought Douglas Countywaterfront property along the Columbia River near Rock Island. The shoreline is steep and rocky, with a portion excavated approximately 75 to 100years ago apparently for a ferry landing. The property included a rock/dirt boat launch and a 4-foot-wide by 16-foot-long dock. In 1997, the Marlows constructed a concrete block retaining wall and a second retaining wall in 1998 or 1999. They claim the retaining walls were necessary to stop soil erosion. Theyfurther installed a concrete pad above one ofthe retaining walls for a hottub. Also in 1997, the Marlows replaced the rock/dirt boat launch with a concrete launch. In 2003, the Marlows installed a 55-foot bulkhead, sidewalks, and a patio. The bulkhead is oneto two feet landward ofthe ordinary high water mark. In 2006, the Marlows replaced the concrete blocks in their retaining walls with flat stones. They brought in fill sand and attached a slide tothe bulkhead that was later removed. In 2008, the Marlows replaced the existing dockwith a grated dock (the prior dock had a solid surface), which is more "environmentally friendly." Clerk's Papers (CP) at 660. And, they installed a boat lift. The new dockwas 8-feet-wide by 20-feet-long. On June 24, 2011, the County issued a NOVto the Marlows. The NOV described the Marlows' unauthorized development on the Columbia River shoreline as violations, specifically including the boatlift; concrete bulkhead, sidewalk, and patio; 

### 2No. 31013-2-111 Marlow v. Douglas County concrete launch ramp; multiple dockfloats and a dock ramp; diving board and slide; grading and retaining walls; non-native sand; and the concrete pad underthe hottUb. The Marlows appealed tothe Douglas County Hearing Examiner. In a November 2011 hearing, the Marlows offered thetestimony ofTony Roth, a certified wetlands scientist, who visited the Marlows' propertyfrom Seattle on the day ofthe hearing and then opined "continuity of use" was bestforthe environment. CP at663. The hearing examinerfound Mr. Roth was not "an expertwitness" and "[e]ven if Mr. Roth could be characterized asan expertwitness

... Mr. Roth's purported opinions [are not] convincing." CP at 13. The hearing examiner affirmed the County's NOV, entering findings offact and conclusions of law. The Marlowsthen filed a LUPA petition in the Douglas County Superior Court, challenging the hearing examiner's decision. The court dismissed their petition, concluding the County hadjurisdiction to provide a NOVand the Marlows had failed to showthey obtained the necessary permits fortheir improvements orthat theywere exempt from obtaining permits. The Marlows appealed to this court. ANALYSIS A. Jurisdiction The issue is whetherthe hearing examiner lackedjurisdiction to affirm the County's NOV. The Marlows contend the hearing examiner's decision amounted to an unlawful injunction thatthe examinerdoes not have authority to impose. LUPA governsjudicial review ofWashington land use decisions. HJS Dev., Inc.

v. Pierce Countyex reI. Dep'tofPlanning & LandServs., 148Wn.2d 451,467,61 P.3d 

### 3No. 31013-2-111 Marlow v. Douglas County 1141 (2003). Relieffrom a land use decision may be granted ifthe petitionercarries its burden in establishing one ofsix standards of relief: (a) The body orofficerthat made the land use decision engaged in unlawful procedure orfailed to follow a prescribed process, unless the errorwas harmless; (b) The land use decision is an erroneous interpretation of the law, afterallowing for such deference as is due the construction ofa law by a localjurisdiction with expertise; (c) The land use decision is not supported by evidencethat is substantial when viewed in light ofthe whole record before the court; (d) The land use decision is a clearly erroneous application ofthe lawtothe facts; (e) The land use decision is outside the authority or jurisdiction ofthe body orofficer making the decision; or (f) The land use decision violates the constitutional rights of the party seeking relief. RCW 36.70C.130(1). Standards (a), (b), (e) and (f) present questions of lawwe review de novo, but under (b) we give deference to the hearing examiners construction oflocal land use regulations based on his or herspecialized knowledge and expertise. Cingular Wireless, LLC 

### v. Thurston County, 131 Wn. App. 756, 768,129 P.3d 300 (2006). Standard (c) involves factual determinationswe review for supporting substantial evidence. Id. We consider all ofthe evidence and reasonable inferences in the light mostfavorable to the party who prevailed in the highestforum that exercised factfinding authority. Id. "'When reviewing a superior court's decision on a land use petition, the appellate courtstands in the shoes ofthe superior court.'" HJS Dev., 148Wn.2d at468 (quoting Citizens to Preserve PioneerParkLLC v. CityofMercerIsland, 106Wn. App. 461,470, 

### 4No. 31013-2-111 Marlow v. Douglas County 24 P.3d 1079 (2001 ». '''An appellate court reviews administrative decisions on the record ofthe administrative tribunal, notofthe superiorcourt.'" HJS Dev., 148Wn.2d at 468 (quoting King County v. BoundaryReviewBd., 122 Wn.2d 648, 672,860 P.2d 1024 (1993». The Marlows first argue the land use decision is outside the authority or jurisdiction ofthe body or officer making the decision (RCW 36.70C.130(1)(e». Implementation ofthe SMA is a coordinated effort ofthe State and local jurisdictions. The SMA and applicable regulations expressly provideforthe County's permitting and enforcement underthe SMA and SMP. RCW 90.58.050, 140(3); WAC 173-27-240. Regarding penalties, RCW 90.58.210(3) provides they "shall be imposed by a notice in writing

...tothe person incurring thesame from the department or local government,'describing theviolation with reasonable particularity and ordering the act
oracts constituting the violation orviolations to cease and desistor, in appropriate cases, requiring necessary corrective action to be taken within a specific and reasonable time." Likewise, WAC 173-27-240was codified to "implementthe enforcement responsibilities ofthe department and local government underthe Shoreline Management Act." Further, this code section "provides for a variety ofmeans of enforcement, including civil and criminal penalties, orders to cease and desist, orders to take corrective action, and permit rescission." 

### Id.



### 5No. 31013-2-111 Marlow v. Douglas County In harmonywith RCW 90.58.210(3) and WAC 173-27-270, the County ordered the Marlows to stop property development and identified specific corrective steps to complywith the County's SMP: 1. Immediately cease and desist all development

.... 2. Submitto the Douglas County Department of Transportation and Land Services, within 30 days, the following: a. A Shoreline Management Substantial Development PermitApplication

... ; b. State Environmental PolicyAct (SEPA) Environmental Checklist; c. A fish and wildlife habitat management and mitigation plan

... ; and d. Appropriate application fees in the amount of $3,208.00

. 3. In accordance with an approved shoreline substantial development permit and fish and wildlife habitat management and mitigation plan, all structures and development identified in this notice and order must be removed and remediated. CP at 66-67. Citing Chaussee v. Snohomish CountyCouncil, 38 Wn. App. 630, 689 P.2d 1084 (1984), the Marlows argue the examiner exceeded his jurisdiction by granting "injunctive" relief. In Chaussee, the court addressed a challenge to injunctive relief. The case involved the authority ofa hearing examinerand the county council to consider and apply the doctrine ofequitable estoppel in a land use administrative proceeding. The court held that the authority ofa hearing examiner is created by and limited to the statutes and/or ordinances creating the position. Id. at 636-38. Here, however, the hearing examinerwas affirming action authorized by RCW 90.58.210(3) and WAC 173-27-270, not imposing an injunction. 

### 6No. 31013-2-111 Marlow v. Douglas County Herman v. Shorelines Hearings Board, 149 Wn. App. 444, 457-58,204 P.3d 928 (2009) is instructive. There, this court reversed the superior court's decision and reinstated a Shorelines Hearings Board (SHB) order. The SHB order included an order to comply, conditions required to comply, and imposed sanctions ifcompliance was not achieved. In affirming the order, this court acknowledged the SHB's authority to place conditions on development and held the administrative orderwas not self-executing. Similarly, in Twin Bridge Marine Park, LLC v. DepartmentofEcology, 162 Wn.2d 825, 175 P.3d 1050 (2008). our Supreme Court held the Department of Ecology had no authority to directly review a county development permit or issuefines for noncompliancewith the SMA. Id. at 845-46. The authority was granted to the county. Accordingly, because the NOV issued to the Marlows and affirmed by the hearing examiner, does not impose injunctive relief and is within the authority granted by statute and code, it is not outside the authority orjurisdiction ofthe body or officer making the decision. Thus, we conclude the Marlows have not mettheir burden to justify relief under RCW36.70C.130(1)(e). B. Statute of Limitations The issue is whetherthe County's NOVwas barred bythe statute o'f limitations. The Marlows initially argued the NOV is essentially a civil penalty and a misdemeanor, which carry a two-year statute of limitations and one-year statute of limitations, respectively. In their reply brief, however, the Marlows appearto concede no statute of limitations applies to these proceedings, butthey ask us to take the delay in enforcement into consideration. 

### 7No. 31013-2-111 Marlow v. Doug/as County As discussed above, the County properly issued a NOVthatthe hearing examjner had jurisdiction to affirm. This case does not involve civil penalties orcriminal liability as contemplated bythe time limitations setforth in RCW4.16.100(2) (two-year statute of limitationsto pursue civil penalties) and RCW 9A.04.080(1)U) (one-year statute of limitations for misdemeanors). Accordingly, these proceedings are not barred bythe statute of limitations. C. Burden of Proof The issue is whetherthe hearing examiner applied an incorrect burden of proof therebyjustifying relief under RCW 36.70C.130(1)(a). The Marlows contend the examinerwrongly placed the burden on them to demonstrate SMA compliance. Douglas County Code 2.13.070(A)(3), grantsthe hearing examiner authority to review appeals "alleging an error in a decision" in the "enforcement ofviolations ofthe zoning code orany otherdevelopment regulation." The error must be alleged by the appellant, here, the Marlows. Further, underthe SMA, the proponentseeking a development permit has the burden ofproving the pOlicies and regulations ofthe SMA have been met. RCW 90.58.140(7). The statute places the burden of proofon any party challenging the granting or denial ofa permit. Similarly, the proponent ofdevelopment has the burden ofproving the development is exemptfrom permitting. WAC 173-27-040(1)(c). Relying on Post v. CityofTacoma, 167Wn.2d 300, 217 P.3d 1179 (2009), the Marlows argue the County had the burden of proofbeforethe hearing examiner. Post involved a challengeto over $500,000 in infraction penalties administratively imposed 

### 8No. 31013-2-111 Marlow v. Doug/as County by Tacoma under its building code. The penalties were imposed without any opportunityfor administrative challenge or review, and were struck down by the Supreme Court as violating due process. Here, the Marlows exercised their right to administratively challenge the NOVand no infractions were issued or penalties imposed. The Marlows will be subject to enforcement solely aftertheirfailure to comply with the NOV. Thus, the Postcase is distinguishable on its procedure and facts. The Marlows cite WAC 461-08-500(3), which provides, "Persons requesting review pursuantto RCW 90.58.180(1) and (2) shall have the burden ofproof in the matter. The issuing agency shall have the initial burden ofproofin cases involving penalties or regulatory orders." This section, however, applies to proceedings before the SHB, which reviews cases de novo. And, the term "agency" used in WAC 461-08­ 500(3) is defined as "any state governmental agency." A county falls within the defined term "local government." WAC 461-08-305(7). Therefore, the burden ofproof provision in WAC 461-08-500(3) is not applicable to proceedings before a county hearing examiner. Under RCW 90.58.140(7) and WAC 173-27-040(1)(c), the burden of proof is on the Marlows to demonstrate they did not developwithin the shoreline, orthey obtained all necessary permits, exemption determinations and other approvals. The Marlows have failed to meettheir burden ofproofto establish the standard for relief at RCW 36.70C.130(1)(a).



### 9No. 31013-2-111 Marlow v. Douglas County D. Exemption Claims The issue is whether the hearing examiner erred in concluding the Marlows failed to meettheir burden ofshowing "the dock

... boat launch

... bulkhead

... and four
new retaining walls could qualify as exemptions." CP at 19 (Conclusion of Law 7). The Marlows contend theywere exemptfrom the WAC's shoreline permit and enforcement procedures requirements. Initially, we notethe Marlows did notspecifically assign errorto the hearing examiner's findings offact, but provided a general objection in aSSignment oferror 3. stating. "This issue affected all findings offact and particularly the findings related to [the] Marlows' contention that their actions were exemptfrom permitting requirements." Br. ofAppellant at2. While nota specific assignment oferror ofeach finding as contemplated by RAP 10.3(g), RAP 1.2(a) requires we interpretthe appellate rules liberally "to promotejustice and facilitate the decision ofcases on the merits." The Marlows' briefing clearly reveals their challenges. Even so, the evidence and reasonable inferences are viewed in the light mostfavorable to the party who prevailed in the highestforum that exercised fact-finding authority (the County). Cingular Wireless, LLC, 131 Wn. App. at 768. UndertheWAC's shoreline permit and enforcement procedures, local entities are required "to establish a program, consistent with rules adopted bythe department of ecology, for the administration and enforcement ofthe permit system for shoreline management." WAC 173-27-020. But, underWAC 173-27-040 several exemptions existto the permit requirement. The County's NOVordered the Marlows to submitto 10No. 31013-2-111 

### Marlowv. Douglas County the County, "A Shoreline Management Substantial Development PermitApplication." CP at 66. The Marlows argue exemptions existed forthe dock, boat launch, bulkhead, and retaining walls butthe hearing examiner concluded otherwise. We review conclusions of law de novo. 

### CityofUniv. Place v. McGuire, 144Wn.2d 640, 652, 30 P.3d 453 (2001). The dockwas installed sometime after 1984, after adoption ofthe SMAand the County's SMP. But, the County did not issue a determination ofexemption or letters of exemption forthis prior dock. In 2008, the Marlows placed a new dock in the shoreline. The Marlows claim this dockwas exempt in 2008 based on WAC 173-27-040(2)(b). "Normal maintenance or repair ofexisting structures or developments" do not require substantial development permits. WAC 173-27-040(2)(b). The original dock, however,
was not maintained or repaired; it was replaced by one considerably larger and wider in
a different style. Accordingly, the hearing examiner properly concluded this structure
was not exemptfrom the permit requirements. The boat launch was constructed in 1997. It is a long concrete structure extending from a concrete parking area down into the Columbia River. Concrete was poured 5 to 10feet into the Columbia River. The Marlows argue the boat launch was exempt based on maintenance or repair underWAC 173-27-040(2)(b). But, the original launch was dirt and rock, the new boat launch is made out ofa different material and is
a different size and shape. Theworkwas not limited to maintenance or repair and required a permit. The Marlows argue theywere exempt based on thefair marketvalue ofthe repairs. Former RCW 90.58.030(3)(e) (1997) provides that improvements having
11No. 31013-2-111 Marlow v. Douglas County
a fair marketvalue of less than $2,500 are not substantial developments and do not require a permit (the current statute has raised the amountto $5,000). While the Marlows claim the concrete cost less than $2,500, that claim alone is notsubstantial evidence to establish the fair marketvalue. See Magana v. HyundaiMotorAm., 123 Wn. App. 306, 320,94 P.3d 987 (2004) (bare, self-serving declarations are inadequate). The bulkhead was constructed by the Marlows in July 2003. It consists ofa large 60-foot concrete structure along the shoreline. Concrete was poured waterward ofthe ordinary high water markto a depth ofthree to sixfeet. The Marlows argue the bulkhead was eligibleforthefair marketvalue exemption. During his testimony, Mr. Marlow could not remember how much he paid forthe concrete bulkhead until reminded by his counsel. Mr. Marlow agreed with his counsel that the costwas $1,500 to $2,000. The Marlows did not provide anyfurtherevidence. As discussed above, this selfserving recollection is insufficientto establish a permit exemption. The Marlows further argue the bulkhead was exempt because it was needed for protection. Both RCW 90.58.030(2)(e)(ii) and WAC 173-27-040(2)(c) allow an exemption for a "normal protective bulkhead" on a single-family residence property. Based on our record, it does not appearthe bulkhead was constructed to protectthe Marlows' residence from erosion. Instead, it appears the bulkhead was created for more dryland area. Again, withoutfurther evidence, the Marlowsfail to establish they are exemptfrom the permit requirements. The retaining walls were constructed in 2006. The Marlows placed four retaining walls within the shoreline, two ofwhich replaced existing retaining walls. They argue a 12No. 31013-2-111 Marlow v. Douglas County permitwas not required because the newwalls are maintenance or repair ofthe original walls. But. the walls are not comparable to the original in size, shape, configuration, location, material, and external appearance. The terracing has been largely expanded. The Marlows argue the walls are an exempt "appurtenance" to their home. UnderWAC 173-27-040(2)(g), an appurtenance to a single-family residence is exemptfrom the permit requirements. In this context, an appurtenance is "a garage; deck; driveway; utilities; fences; installation ofa septictank and drainfield and grading which does not exceed two hundred fifty cubicyards and which does not involve placement offill in any wetland orwaterward ofthe ordinary high water mark." WAC 173-27-040(2)(g). A retaining wall is not included in this list. Accordingly, a permitwas required. Given all, we conclude none ofthe Marlows' exemption claims are well founded. 

### E. Mr. Roth's Testimony The issue is whetherthe hearing examiner's finding regarding the weight given to Mr. Roth's testimony and rejecting his expertisejustifies relief under RCW 36.70.130(1)(c) as a decision notsupported by substantial evidence. The minimum qualifications for an expert used by a development proponentto address impacts and mitigation are set out in the County's SMP. The SMP defines a "qualified professional for wetlands" as a person with a "degree in biology, ecology, botany, or a closely related field and a minimum offive (5) years of professional experience in wetland identification and assessment in Eastern Washington." Douglas County SMP, ch. 

### 8, 

### § 203, available at(http://www.douglascountywa.net).

13No. 31013-2-111 Marlow v. Doug/as County The Marlows retained Mr. Roth, a Western Washington resident, the day before the hearing and he visited the Marlows' property the day ofthe hearing. Mr. Roth did nottestify regarding the scope and details ofhis investigation ofthe Marlows' property and did not prepare a written report; rather, Mr. Roth testified regarding general observations ofthe Marlows' property. Mr. Roth did nottestify as to any professional experience involving Eastern Washington wetlands as required bythe SMP. Based on the limited information provided regarding his education and experience, Mr. Roth did notestablish his expertise underthe County's SMP. The hearing examiner properly found likewise. Moreover, any errorwas harmless because the hearing examiner additionally found, "Even if Mr. Roth could be characterized as an expertwitness

... Mr. Roth's purported opinions [are not] convincing." CP at 13. In sum, considering the SMP, the hearing examiner's specialized knowledge and expertise, the examiner's fact-finding discretion regarding credibility and evidence weight, and ourstandard ofviewing the evidence and reasonable inferences from the evidence in the light mostfavorable to the prevailing party, we cannot conclude the hearing examinererred regarding Mr. Roth'stestimony. F. Attorney Fees The County argues the Marlows' appeal is frivolous and requests attorneyfees under RAP 18.1 and RCW4.84.185 for defending against a frivolous appeal. "An appeal is frivolous if, considering the entire record, it has so little meritthatthere is no reasonable possibility of reversal and reasonable minds could not differ aboutthe issues raised." Johnson v. Jones, 91 Wn. App. 127, 137,955 P.2d 826 (1998). While
14No. 31013-2-111 Marlow v. Doug/as County the Marlows have not established a basis to reverse the hearing examiner's decision,
we cannot saytheir issues are so meritless that reasonable minds could not differ. Thus, the County's request is denied. Affirmed. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but 

### it will be filed for public record pursuantto RCW 2.06.040.

Brown, J. WE CONCUR:

Siddoway, A.C.J.



### 15