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IN THE SUPREME COURT OF THE STATE OF WASHINGTON

CITIZENS FOR RATIONAL SHORELINE PLANNING, a Washington nonprofit corporation, and RONALD T. JEPSON, an individual,

) ) ) ) ) Petitioners, ) ) and ) ) BUILDING INDUSTRY ASSOCIATION OF ) WHATCOM COUNTY, ) ) Intervenor-Petitioner, ) ) v. ) ) WHATCOM COUNTY, a municipal corporation ) of the State of Washington, and the ) WHATCOM COUNTY COUNCIL, ) ) Respondents, ) ) and ) ) WASHINGTON STATE DEPARTMENT OF ) ECOLOGY, ) ) Intervenor-Respondent. ) _________________________________________)

No. 84675-8

EN BANC

Filed August 18, 2011

C. JOHNSON, J.--This case involves a question of whether RCW

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82.02.020, which generally prohibits local governmental bodies from imposing taxes or fees on development, applies to shoreline master programs (SMP) created pursuant to the Shoreline Management Act of 1981 (SMA), chapter 90.58 RCW. Members of the Citizens for Rational Shoreline Planning (CRSP) own land regulated under Whatcom County's SMP. The group filed a complaint alleging, in part, that the regulations contained in the SMP constitute a direct or indirect tax, fee, or charge on development in violation of RCW 82.02.020. The superior court dismissed the claim under CR 12(b)(6) for failing to state a claim for which relief may be granted. Division One of the Court of Appeals affirmed the superior court, holding that the State's involvement in the creation and adoption of Whatcom County's SMP was so pervasive as to make the County's SMP a state action not subject to RCW 82.02.020. We affirm the Court of Appeals. FACTS Under the SMA, each county is required to adopt and administer a local shoreline master program, which regulates uses and development on shorelines located within the county. Whatcom County's original SMP was approved by the Department of Ecology (Ecology) in 1976. Since its inception, the County's SMP

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was amended in 1986, 1993, and 1998. Clerk's Papers (CP) at 68. In 2003, Ecology adopted new shoreline master program guidelines. Pursuant to the SMA, Whatcom County was required to review and update its 1998 SMP to ensure compliance with Ecology's newest guidelines.1 In 2004, Whatcom County initiated the process of amending its SMP. Over the next three years, the County gathered input from technical advisory groups, held open public meetings and workshops, and released proposed drafts of the SMP for public review and comment. In 2007, the county council adopted Whatcom County Ordinance 2007-017, which amended its existing SMP. Whatcom County then forwarded its package of amendments to Ecology for review. CP at 67-72. After a public hearing and comment period, Ecology provided Whatcom County with 13 pages of mandatory revisions to the proposed SMP and two pages of recommended changes. In August 2008, the County notified Ecology that it accepted Ecology's proposed changes. Under the SMA, this notification of agreement made Whatcom County's SMP final.2 CP at 75-91, 104.
1

RCW 90.58.080(1) states: "Local government shall develop or amend a master program for regulation of uses of the shorelines of the state consistent with the required elements of the guidelines adopted by the department in accordance with the schedule established by this section." Additionally, RCW 90.58.080(2)(a)(i) requires certain counties--including Whatcom County--to develop or amend their SMPs before December 1, 2005 to ensure consistency with Ecology's guidelines.

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In October 2008, members of the CRSP filed a complaint in Skagit County Superior Court alleging that Whatcom County's SMP imposed direct or indirect taxes, fees, or charges in violation of RCW 82.02.020. CRSP noted that certain aspects of the County's newly amended SMP were identical to aspects contained in the Whatcom County Critical Areas Ordinance (CAO). CRSP specifically pointed to the SMP's buffer zone provisions, which prohibit construction within 150 feet of shoreline streams and marine shores, 100 feet from certain large lakes, and between 25 to 300 feet from wetlands.3 CRSP also noted that the SMP limits the buildable area of structures located on nonconforming lots within the SMP's shoreline buffer zones to 2,500 square feet.4 Shortly after CRSP filed its complaint, Ecology intervened on behalf of Whatcom County (together, the State). The State moved to dismiss CRSP's complaint under CR 12(b)(6), arguing that SMPs are state, not local, regulations, thereby rendering RCW 82.02.020 inapplicable. The superior court agreed and dismissed CRSP's complaint. CP at 113-22, 165-66.
2

RCW 90.58.090(2)(e)(i) ("The receipt by the department of the written notice of agreement constitutes final action by the department approving the amendment.").
3 4

See Whatcom County Code (WCC) 16.16.630. See WCC 23.50.070(k)(2).

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CRSP appealed to Division One. CRSP offered several arguments to the appellate court essentially focusing on why SMPs are local regulations subject to

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RCW 82.02.020. The Court of Appeals disagreed. Relying on the statutory scheme embodied in the SMA, and our holdings in Orion Corp. v. State, 109 Wn.2d 621, 747 P.2d 1062 (1987), and Biggers v. City of Bainbridge Island, 162 Wn.2d 683, 169 P.3d 14 (2007), the Court of Appeals held that the State's significant involvement in the process of developing SMPs precluded a claim under RCW 82.02.020. Citizens for Rational Shoreline Planning v. Whatcom County, 155 Wn. App. 937, 230 P.3d 1074 (2010). ISSUE Whether shoreline master programs constitute local government regulations subject to RCW 82.02.020's prohibition on taxes, fees, or charges.

ANALYSIS The superior court here granted the State's CR 12(b)(6) motion and dismissed CRSP's complaint for failure to state a claim upon which relief may be granted. A CR 12(b)(6) motion is properly granted when it appears from the face of the complaint that the plaintiff would not be entitled to relief even if he proves all the alleged facts supporting the claim. A trial court's ruling on a CR 12(b)(6) motion

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presents a question of law that we review de novo. Kinney v. Cook, 159 Wn.2d 837, 842, 154 P.3d 206 (2007) (citing Tenore v. AT&T Wireless Servs., 136 Wn.2d 322, 329-30, 962 P.2d 104 (1998)). Under RCW 82.02.020, the State, with limited exceptions, preempts the field of certain tax impositions. As relevant to our present case, RCW 82.02.020 states: Except as provided in RCW 64.34.440 and 82.02.050 through 82.02.090, no county, city, town, or other municipal corporation shall impose any tax, fee, or charge, either direct or indirect, on the construction or reconstruction of residential buildings, commercial buildings, industrial buildings, or on any other building or building space or appurtenance thereto, or on the development, subdivision, classification, or reclassification of land. Restrictions or conditions on the development of land may amount to an indirect tax, fee, or charge. However, according to the statute's plain text, RCW 82.02.020 applies only to taxes, fees, or charges imposed by local political subdivisions, not the state. Isla Verde Int'l Holdings, Inc. v. City of Camas, 146 Wn.2d 740, 49 P.3d 867 (2002); Citizens' Alliance for Prop. Rights v. Sims, 145 Wn. App. 649, 187 P.3d 786 (2008), review denied, 165 Wn.2d 1030 (2009). CRSP's complaint alleged that the buffer zone and buildable lot size restrictions in Whatcom County's amended SMP constitute a "facial violation" of

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RCW 82.02.020.5 CRSP advances two primary arguments. First, CRSP argues that the process by which an SMP is created requires significant local government involvement, thereby bringing SMP restrictions under the scope of RCW 82.02.020. For support, CRSP points to a specific section of the SMA and also to Ecology's administrative code. As additional support, CRSP argues that the Court of Appeals inappropriately relied on this court's precedent because legislative amendments in 1995 undermined the rationale of our holdings. Second, CRSP presents a narrower argument that several specific aspects of Whatcom County's SMP--namely its buffer zones and buildable lot size restrictions--are subject to RCW 82.02.020 because these particular restrictions mirror restrictions in Whatcom County's Critical Areas Ordinance (CAO).6 To begin, CRSP argues that the process in which an SMP is adopted shows that such regulations are inherently local activity subject to RCW 82.02.020. CRSP

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CRSP does not challenge the imposition of SMP restrictions on any specific parcel of land or any particular development. Essentially, CRSP seeks declaratory relief that local government SMPs are subject to RCW 82.02.020. 6 CRSP also contends that the circumstances surrounding the adoption of the SMA further back its arguments. CRSP asserts that two different versions of the SMA were submitted to Washington's voters in 1972--one purportedly provided for a local regulatory scheme and the other supposedly provided for a state-level regulatory scheme. We reject this argument because CRSP does not offer any legal authority establishing why a version of the SMA not passed by the voters can determine the scope of the version of the SMA that voters approved and that is presently before this court.

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asserts that the SMA requires extensive involvement from local jurisdictions when creating an SMP. CRSP relies on a statute within the SMA, RCW 90.58.080(1), which states, "Local governments shall develop or amend a master program for regulation of uses of the shorelines . . . ." (Emphasis added.) CRSP also notes that Ecology's administrative code suggests that local government involvement is necessary for an SMP to conform to local conditions. WAC 173-26-171(2) (stating the SMA's purpose is to implement a "`cooperative program . . . between local government and the state'" and that "[l]ocal government shall have the primary responsibility for initiating the planning required by the [SMA]"). In response, the State argues that the ultimate control over the process and contents of an SMP resides with Ecology. The State asserts that the SMA governs nearly every aspect of the adoption and amendment of SMPs and this determinatively shows that SMPs are the product of state action. We agree. The SMA creates a comprehensive statutory framework dictating that Ecology retains control over the final contents and approval of SMPs. The SMA establishes specific schedule dates for jurisdictions to develop SMPs and mandates Ecology to create SMPs for noncomplying jurisdictions through an administrative

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process. See RCW 90.58.070. The SMA also details specific guidelines with which an SMP must conform. See RCW 90.58.060, .100. As empowered by the SMA, Ecology retains sole authority to review and accept a local jurisdiction's proposed SMP; a process that involves Ecology providing public notice, a comment period, and potentially holding public hearings. See RCW 90.58.090(2)-(6). Notably, Ecology is not required to give any deference to a local jurisdiction's SMP during review or acceptance if the proposed SMP does not conform to Ecology's established guidelines. RCW 90.58.090(7).7 In this case, although Whatcom County engaged in a lengthy process of formulating its SMP--the County consulted local groups potentially affected by the new regulations, held public meetings, and solicited comments--this process did not intrinsically make the SMP a product of local government. The SMA encourages local jurisdictions, such as Whatcom County, to formulate SMPs to meet particular local conditions. But this process is done in the shadow of Ecology's control. The

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Ecology also plays a part in enforcing an SMP after final approval. A party seeking to develop shoreline areas may apply for one of three types of permits: a conditional use permit, a variance, or a substantial development permit. Ecology retains authority to issue final approval for conditional use permits and variances. See RCW 90.58.140(10). The third type of permit--substantial development permits--must be forwarded to Ecology, which then may appeal the issuance of the permit. See RCW 90.58.140(6).

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SMA provides Ecology with stringent oversight authority and command over the final contents of any jurisdiction's SMP. The involvement of local jurisdictions in the SMP process is a benevolent gesture by the state. Ultimately, state law directed Whatcom County to act by a certain date, created the overarching framework with which Whatcom County's SMP must comply, and left final approval of the County's SMP in the hands of Ecology. Although Whatcom County initially adopted its SMP by ordinance, this was merely a perfunctory step because its SMP did not become final under the SMA until Ecology received notification that Whatcom County accepted Ecology's mandatory revisions. See RCW 90.58.090(1) ("A master program, segment of a master program, or an amendment to a master program shall become effective when approved by the department."); RCW 90.58.090(2)(i) ("[R]eceipt by the department of the written notice of agreement constitutes final action by the department approving the amendment."). In short, although Whatcom County was encouraged to tailor its SMP according to local conditions and needs, the SMP was subject to Ecology's mandatory review, revision, and approval as a condition precedent to the SMP taking effect. This is sufficient to show that Whatcom County's SMP was not the product of local

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government, and therefore, is not subject to RCW 82.02.020. This conclusion is supported by our prior holdings. In Orion, a local government's SMP classified the petitioner's tidal property as "aquatic." Orion, 109 Wn.2d at 628. Since this designation precluded the petitioner's intended use of the property, the petitioner alleged a regulatory taking against both the state and the local county. In addressing the regulatory taking issue, we looked to determine which government, state or local, bore responsibility for the alleged taking. In holding the trial court erred when denying the local county's motion to dismiss, we noted, "In developing [its SMP], the County acted under the direction and control of the State." Orion, 109 Wn.2d at 643. Consequently, we held the State must take responsibility for any taking that occurs as a result of the regulations contained in the county's SMP. Orion is precedent for our present case, which also asks the question of which party, the state or the local jurisdiction, bears responsibility for an SMP. CRSP contends that Orion is no longer instructive given certain amendments to the Growth Management Act (GMA), chapter 36.70A RCW. CRSP specifically points to a 1995 amendment to RCW 36.70A.480(1), which discusses the goals and

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policies of the GMA concerning shorelines of the state: "[P]ortions of the [SMP] for a county or city adopted under chapter 90.58 RCW, including use regulations, shall be considered a part of the county or city's development regulations." (Emphasis added.) CRSP further asserts that an amendment made to Ecology's administrative code supports its argument: Planning policies [of the SMA] should be pursued through the regulation of development of private property only to an extent that is consistent with all relevant constitutional and other legal limitations (where applicable, statutory limitations such as those contained in chapter 82.02 RCW . . . ) on the regulation of private property. WAC 173-26-186(5) (emphasis added). The State responds by noting that neither amendment alters the significant amount of state involvement in the process of creating or amending an SMP. The 1995 amendment to RCW 36.70A.480(1) was part of a broad package of amendments affecting the GMA and, to a much smaller degree, the SMA. In these amendments, the only procedural change made to the SMA was eliminating the requirement that Ecology engage in a formal rule-making procedure when approving SMPs. See Laws of 1995, ch. 347,

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