News Release No. 2001-4
March 19, 2001
Court Upholds Denial of Henry Island Access Cut
Claes and Kathy Eklund do not have a constitutional right to
build a road from the beach to their homesite on Henry Island.
After hearing oral arguments on Friday in Olympia, Thurston County
Superior Court Judge Daniel Berschauer upheld the state Shorelines
Hearings Board's decision to deny the Eklunds' application for
an access cut through a 35-foot high embankment on
Henry Island.
Construction of the cut through the high bank on Spring Beach was halted by the San Juan County Permit Center in April 1998. The Eklunds then filed an application to complete the access cut and build a dock. After County Hearing Examiner Wick Dufford denied both of the Eklunds' applications the Eklunds appealed the decision to the state Shorelines Hearings Board.
After a two-day hearing conducted in January 2000, the Shorelines Hearings Board approved the dock application but found that the Eklund's proposal to create a roadway through a conservancy shoreline on Spring Beach on Henry Island was "too much." The Board found that the cut was a "substantial degradation" to the beach and was not consistent with the County's policies to protect conservancy environments.
The Eklunds appealed the ruling of the Shorelines Hearings
Board to Thurston County Superior Court. In their appeal the
Eklunds contended the Board's decision was "oppressive".
They stated that their application included engineering which
would protect the beach and that the Board's decision violated
their constitutional right to have "reasonable" access
to their homesite. They argued that without an access cut it
will be impossible for them to build and live in a house on Henry
Island. They said
the Board's decision deprives them of all reasonable use of their
land.
Judge Berschauer disagreed. He uniformly upheld the Shorelines
Hearings Board decision and rejected the Eklunds' constitutional
claims. He ruled that the Shoreline Master Act was passed to
protect the Washington's shorelines. As a conservancy shoreline
Spring Beach is entitled to an extremely high level of protection.
The Board did not err in holding that a
cut through the "steep and unstable" bank did not respect
the natural limitations of the beach and violated the County's
shoreline policies.
Permit Center Director Grant Beck was buoyed by the court's
support of the Shorelines Hearings Board and the County's Shoreline
Master Program. "We are extremely fortunate to have the
strong support of the state in the enforcement of the Master Program,"
said Beck. "This decision was a clear message from the Shorelines
Hearings Board, that the protection of
conservancy shorelines will not be taken lightly. I am very heartened
to hear that message endorsed by the Thurston County Court".
Randall K. Gaylord
San Juan County Prosecuting Attorney
96 Second Street, 2nd Floor
P.O. Box 760
Friday Harbor, WA 98250
360/378-4101