Ruling by Linde backed in state appellate court decision

The late Judge John Linde is no longer around to issue a ruling from the bench.

But the legacy his storied legal career lives on in a recent decision handed down by the state Court of Appeals.

On Jan. 31, the Seattle-based appellate court struck down an appeal filed by Friends of the San Juans and, citing a ruling by Linde in the long-running dispute over a Pearl Island property owner's plans to build a dock, backed the former San Juan County Superior Court judge in determining that the dock indeed does deserve a permit.

"The late Judge John 0. Linde, of San Juan County Superior Court, drafted a thoughtful and well reasoned letter opinion reversing the Board," the appellate court noted in its ruling. "While our review is of the Board's decision and the record before the Board, this opinion will to a certain extent mirror Judge Linde’s."

An appeal was field by Friends after Linde overturned a decision by the state Shoreline Hearings Board in August 2009, just months before his untimely death in early December, at the age of 62. The appellate court sided with Linde in determining the Hearings Board erred in its interpretation of local land-use rules and in concluding that the threat the dock posed to a bed of eelgrass was sufficient, in large part, to deny it a permit.

Linde concluded otherwise.

In his ruling, Linde determined the state board went too far in rejecting the permit and that its decision was largely based on hypothetical or unproven impacts. In reversing the board's decision, he reinstated the permit as well as a series of "conditions" which prompted its approval at both the state and local level.

He added that, "The policies for shorelines of statewide significance that emphasize the broader public interest over local or private interest and the avoidance of long-term harm for short-term gain are not violated where the harm, if any, is shown to be speculative and not significant."

In 2005, Christopher Hughes of Seattle first sought and then gained approval of the Washington Department of Fish and Wildlife to design a dock under its so-called "experimental dock" program. (That program was suspended in the San Juans four years ago at the request of the County Council).

To satisfy the state, Hughes agreed to use "grated" materials that allow sunlight to penetrate the surface of the dock. He also agreed to reduce the dock's length by about 10 feet, realign its placement, and to disassemble and remove the bulk of the dock in event of a prolonged absence from the property. He agreed to pay to have eelgrass restored at a location about one mile from his property on Pearl to offset any damage his dock might cause.

The ruling by the state appellate court is the most recent in a tug-of-war that's spanned more than five years. It has been both rejected and approved by the county hearing examiner, went before the hearings board on three separate occasions, prompted two rounds of lengthy negotiations between Hughes and county officials; it's been battled over in superior court and, most recently, argued before the state Court of Appeals.

Friday Harbor attorney Stephanie O'Day represented Hughes at each step along the way.

Whether the legal dispute has reached its conclusion remains to be seen.

Friends Director Stephanie Buffum Field said the group is weighing its options.

Buffum Field said the appellate court's ruling and a possible appeal to the state Supreme Court will be discussed when the group's board of directors meets Feb. 21.

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