Superior Court Judge Linde overturns state board's decision, reinstates controversial Pearl Island dock permit
By SCOTT RASMUSSEN
Journal of the San Juans Editor
September 21, 2009 · 3:39 PM
Persistence appears to have paid off for a Pearl Island property owner who first sought permission to build a private dock on the north end of the island more than four years ago.
On Aug. 31, San Juan County Superior Court Judge John Linde sided with an appeal filed by Christopher Hughes of Seattle, a part-time resident of Pearl and San Juan islands, and overturned an earlier ruling by the state Shoreline Hearings Board, which had quashed a permit allowing Hughes to build a 98-foot dock on Pearl Island's north end.
The hearings board also took the county to task for approving that permit.
"In this case, the county's issuance of the (permit) failed to adequately protect the state's interest in the land, vegetation, wildlife, waters, and aquatic life around Pearl Island," the hearings board noted in its ruling about a year ago.
Linde, however, ruled otherwise. He determined the state board went too far in rejecting the permit and that its decision was largely based on impacts that are hypothetical or unproven. In reversing the board's decision, he reinstated the permit as well as a series of "conditions" which prompted its approval at the state and local level.
His decision paves the way for construction of a dock that's been ground zero of a long-running legal battle over eelgrass and just how far state and local rules go in protecting it.
"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," Linde noted in his decision.
Not everyone believes Linde got it right. Stephanie Buffum-Field, director of Friends of the San Juans, which contested the permit before the hearings board, argues that the decision handed down in Superior Court clashes with state and local law. Friends could opt to challenge that ruling at the state appellate court.
"We are disappointed with the decision to allow an unnecessary single-user dock amidst sensitive eelgrass," Buffum-Field said in a prepared statement. "The decision conflicts with state law and local rules, and is particularly inappropriate at a time when so many people and resources are committed to restoring Puget Sound. Decisions like this lead to the cumulative loss of our natural heritage."
Four years ago, Hughes sought and gained approval of state Fish and Wildlife to design a dock under its so-called "experimental dock" program. (That program was suspended in the San Juans two years ago at the request of the County Council).
In the past four years, the dock has been both rejected and approved by the county hearing examiner, has been before the hearings board on three separate occasions, and has prompted two rounds of lengthy negotiations between Hughes and county officials.
To satisfy the state program, Hughes agreed to use "grated" materials that allow sunlight to penetrate the surface of the dock. Hughes also agreed to reduce the dock's length by about 10 feet, realign its placement on the shore, and to disassemble and remove the bulk of the dock in event of a prolonged absence from the property.
He also agreed to pay to have eelgrass restored elsewhere to offset any damage his dock might cause.
To satisfy the county, Hughes agreed to apply for a building permit for his undeveloped half-acre waterfront lot on Pearl, and to have the off-site eelgrass restoration proven a success before a dock permit would be granted.
As part of his ruling, Linde noted there's no outright prohibition on building a dock over eelgrass as county shoreline rules exist today, particularly on non-ferry served islands such as Pearl. He cited the package of "conditions" imposed on the dock and its construction — including restoration of a bed of eelgrass damaged by an illegally-placed mooring buoy about a mile away — as a legitimate tool employed by state and local officials in striking a balance between protection of marine habitat and the use of private property.
Hughes' attorney Stephanie O'Day of Friday Harbor said her client has gone to great length to reduce and to offset impacts the dock might have. He had little choice other than to build a dock, according to O'Day, in order to access his property since none of his neighbors would agree to share theirs. She added that the "off-site mitigation" — the eelgrass restoration work which Hughes agreed to finance — has already proven to be a success.
"It's a great relief and vindication for my client," O'Day said of Linde's ruling. "But it's been a very long road to get here."Contact Journal of the San Juans Editor Scott Rasmussen at email@example.com or 1-360-378-5696.