News Update

POSTED: Wednesday, Apr. 15, 2009

Whatcom County: Shoreline rules still in effect, despite judge's ruling

Shoreline development regulations approved by the Whatcom County Council on Aug. 8, 2008, remain in effect despite a Monday, April 13, ruling by a Skagit County Superior Court judge, according to state and county officials.

A property owners' group called Citizens for Rational Shoreline Planning has filed a lawsuit to challenge the tougher rules, joined by development engineer Ronald Jepson and the Building Industry Association of Whatcom County. In an order stemming from that lawsuit, Judge Michael Rickert found that the council should have used an ordinance, not a resolution, to approve shoreline changes that widened buffer zones around shorelines and made it more difficult for some people to build on their shoreline properties.

In a press release issued Tuesday, April 14, the BIA proclaimed victory, saying that Rickert's ruling means the new shoreline rules are no longer in effect.

"They failed in August to do it properly," said Charles Klinge, attorney for the BIA. "The result is they have nothing in effect."

Matthew Stock, attorney for the property owners' group, was a bit more cautious. He said Rickert's ruling "casts serious doubt" on the validity of the new rules.

But Deputy Whatcom County Prosecuting Attorney Karen Frakes and Assistant Washington Attorney General Kelly Wood disagreed.

Wood noted that Rickert specifically declined to overturn the resolution passed by the County Council, saying only that the county should have dealt with the matter as an ordinance, according to the county's statutes and charter.

While the resolution may not conform to county law, it was good enough to put the shoreline rules into effect, because they had previously been approved by the Washington Department of Ecology and have the force of state law, Wood said. As he explained it, state shoreline law specifies that any written notice of approval from the county is sufficient to put the rules into effect.

In any event, Frakes said, the council revisited the issue in March 2009 and did pass the shoreline rules in the form of an ordinance, along with a few amendments to address property owners' concerns. The amendments are still being reviewed by the Department of Ecology.

"Our interpretation of the decision is that, given that state law was complied with, the plan went into effect on Aug. 8," Frakes said. "The county adopted an ordinance on March 17. Clearly this ordinance is in effect."

Klinge said it's likely that the plaintiffs will be back in court.

"It's just unbelievable," Klinge said. "The judge was clear. The county made a mistake. … If they keep this up, we'll just have to go back to the judge."