In State of Washington v. City of Spokane Valley (Division 3, May 3, 2012), the Court of Appeals held that developer Coyote Rock was subject to statutory permit requirements regarding the building of docks for residential use.
Under RCW 90.58.140, “anyone undertaking a substantial development on the shoreline first obtain a permit from the appropriate local jurisdiction.” The statute provides numerous exemptions from this requirement, however, by defining certain types of developments as not “substantial.” One such exemption is found in RCW 90.58.030, which states that the construction of a dock “for the private noncommercial use of the owner, lessee, or contract purchaser of single and multiple family residences” having a value of less than $10,000 is not a substantial development.
Coyote Rock was developing thirty residential lots and wanted to construct docks for the properties. In order to avoid the permitting requirement, Coyote Rock sought refuge in the statutory exemption. It claimed that each of its individual docks was for the noncommercial use of the single family who would ultimately purchase the lot.
The Court of Appeals, however, held that the exemption does not apply to commercial developers building docks for resale to the ultimate/actual residents. In reaching this conclusion, the Court emphasized the statute’s use of “the” instead of “an” when referring to “owners” of the property. The exemption states that “the . . . use” must be for “the owner” — not “an owner.” Accordingly, the Court construed the exemption to apply “only where the owner . . . who is requesting permission to construct the dock will be its private noncommercial user.”
The developer, of course, could request an exemption basd on its own “use” of the lot. But it’s use of the lot was limited to development and resale — in other words, commercial use. And since the exemption is only for noncommercial use, the developer struck out on that argument as well.