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12/28/2005: "BOCC Votes Eastsound Regs Over Shoreline Act"

( Appellant's exhibit of a "before and after" view of project)

A proposal by Wallace and Susan Gudgell to develop two buildings in Eastsound has raised the question of the supremacy of county Shoreline Regulations. The Gudgell proposal was heard and approved by the Hearing Examiner (HE), but then appealed this month to the Board of County Commissioners (BOCC), where, by a two to one vote, the appeal was denied. Commissioners Myhr and Ranker voted to allow the project to go ahead, and Commissioner Lichter voted against it, stating the HE made factual and legal errors in his findings.

At the heart of the matter is the question of which set of regulations control waterfront development in Eastsound: The County Shoreline Act, or a set of local regulations contained in the Eastsound Subarea Plan.

According to William Chapman, attorney for Ms. Margaret Langley, Ms. Leith Templin, and Ms. Pierrette Guimond, the three citizens that filed the appeal, the decision by the HE "treats the Eastsound Subarea Plan's zoning rules as superseding key provisions of the County's Shoreline Master Plan". Or, -the other side of the coin- according to the Gudgell's attorney, The fundamental legal issue …is whether the Eastsound Subarea plan has any meaning".

The matter is further confused by the geography of the proposal. While both of the lots are within the shoreline, one of the lots proposed for development is also within an area known as the Waterfront Access Agreement; an area within the Eastsound Subarea Plan that has more specific control criteria of development than the regulations contained in the Shoreline Act. But specific in what way? The Eastsound Plan is more specific in setting out architectural standards, but according to the appeal, the standards allow greater bulk and size then would be allowed under the Shoreline regulations.

One of the underlying issues that seemed to concern Commissioner Lichter, was the lack of requirement that the Examiner's Conclusions of Law be met by the project as it is developed, but only that that if the Conclusions are met, it would qualify. But unlike usual approvals from the HE, especially within the shoreline, no demand was made by the HE that all of the conditions that would allow the proposed development to qualify for approval be mandatory.

One example that came up in discussion was the question of, would there be "sufficient public visual access to qualify as a ‘water-enjoyment use' " if a restaurant was operated in one of the buildings. Both the HE and the BOCC decided that there would be, but again, there was no demand that there be such a restaurant, or any other use that would meet the requirement that uses be, at the least, such that they provide public access.

As any student of law knows, regulations of a lesser level of government can make regulations more stringent, but not less so. With the split vote of the BOCC, it is expected the matter will go to the Shoreline Hearings Board for their review; and from there it could end up in Court.. The outcome may have far-reaching impacts to the Shoreline Act.