December 3, 2013

Coastal property rights: a view from the Northwest

By Brian T. Hodges Senior Attorney

We don’t have the California Coastal Commission in the Pacific Northwest, but we still face plenty of problems with the government on our (rocky) beaches.  Here are three examples:

Luhrs v. Whatcom County—Attorneys with PLF’s Northwest Center recently represented Lummi Island property owner Victoria Luhrs in her struggle to obtain the government’s permission to build a revetment—a type of shore defense structure that protects against erosion.  Ms. Luhrs needed a revetment because her property was suffering from severe erosion as a result of wave damage.  In spite of the threat to her property, Whatcom County denied Ms. Luhrs’ every request to build shoreline armoring, and this led to protracted litigation.  Fortunately, PLF got involved, and the county eventually granted the permit.  Ms. Luhrs installed a revetment in 2011, ending a decade-long battle with bureaucracy, and bringing some much-needed assurance that her home will not fall into the sea.

Friends of the San Juans v. Hughes—PLF Northwest attorneys filed a friend-of-the-court brief in this case involving an environmental challenge to a private property owner’s dock permit.  Chris Hughes sought permission from San Juan County to build a dock to serve his Pearl Island residence.  The county granted the permit, but an environmental litigation group called Friends of the San Juans appealed to Washington’s Shorelines Hearings Board.  Despite finding that Mr. Hughes’ proposed dock posed no credible threat to the environment, the Board vacated the permit, leaving Mr. Hughes unable to build a dock.  We argued in Hughes’ appeal that the Friends bore the burden of proving environmental harm, and that the Board had illegally shifted the burden to Mr. Hughes by requiring him to prove an absence of harm.  The Washington Court of Appeals agreed with our view that government cannot base permit decisions on hypothetical environmental impacts, and overturned the Board’s decision.

Samson v. City of Bainbridge Island—PLF was also involved as a friend of the court in this long-running case about a series of shoreline development moratoria on Bainbridge Island.  Island property owners sued the city when it imposed a “rolling moratorium” that denied them the right to build on their property while the city rewrote its development regulations to be more restrictive.  In 2007, the Washington Supreme Court ruled that the city did not have the legal authority to enact the moratoria.  But when the property owners pressed their claims for damages in federal court, the Ninth Circuit turned them away.  In the end, the owners succeeded in securing a judgment declaring the moratoria invalid, but they did not receive damages.  Be sure to catch my forthcoming article criticizing the Ninth Circuit’s Samson opinion in the Spring 2014 edition of the Ocean and Coastal Law Journal.

These cases—which represent just a sliver of PLF’s coastal rights litigation—are a reminder that coastal property is a favorite target of the government and other groups that want to take it from owners and control it for their own purposes.  From California, to the Pacific Northwest, and throughout the country, PLF stands ready to defend coastal owners’ rights to use, protect, and enjoy their property.

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