10/11/2006: "Court Upholds Access Site Enforcement On Henry Island"

A recent decision from the Court of Appeals in Seattle confirms the County's approach to enforcing the shoreline laws for private access to Henry Island. There is no publicly-owned barge landing site, and no road system that serves the entire island. The case involves a dispute between neighbors over the County permit requirements limiting the use of an access cut on the property of Paul and Cheryl Walton that was used to bring in materials to build a house.

The Waltons had demonstrated that the access cut existed before the Shoreline Management Act, and when they applied for a building permit for their residence they were allowed to make minor repairs to the cut.

In 2001 the Waltons began to build a residence, but the access cut was cleared excessively. The County's Director of Community Development and Planning responded by issuing a stop work order on the residence and giving the Waltons a choice of restoring the site or applying for the necessary shoreline permits for the cut.

The Waltons chose to restore the cut and a restoration plan was developed and approved by the County.

The Waltons' neighbors, Claus and Kathy Eklund, wanted use of the Waltons' access to build their house, which they hoped would be granted as part of a conditional use permit to the Waltons for a barge landing. The Eklunds sued the Waltons and the County, claiming the County erred when it did not require a conditional use permit.

The Court said that the County properly gave the Waltons a choice to either restore the access cut or apply for shoreline permits. When the Waltons chose to restore the property, it had the effect of foreclosing the possibility that a barge landing facility with access for the Eklunds, would be constructed on the Waltons' property.

In addition, the Court examined the County's code enforcement system and ruled that the County took appropriate steps to enforce the code by halting construction of the residence until the cut on the bank was resolved. The court said that private citizens "have no power to interfere with the County's enforcement actions and decisions." These enforcement decisions rest with the public officials, and not private citizens.

"Henry Island, with its unique situation of access and, such a limited road system, presents unique problems for access," said Prosecutor Randall K. Gaylord. "Though this decision is limited to the narrow facts of the dispute between the Waltons and the Eklunds, it confirms the County's authority and approach to land use enforcement proceedings."