Island County settles beach access lawsuit in 2-1 vote

In a 2-1 vote Tuesday, the Island County Board of Commissioners chose a King Solomon-style solution to disputed beach territory on the end of Wonn Road in Greenbank.

An agreement reached with private landowners Bruce and Joanne Montgomery splits the beach access in half and dismantles half of a low stone wall constructed by the Montgomerys. It also places restrictions on how the county can use its property.

The settlement will end the county’s lawsuit against the couple.

It may not, however, end the eight-year-old conflict that began when the couple built the wall on disputed ground. The group Island Beach Access, or IBA, withdrew as an intervenor in the county’s lawsuit against the Montgomerys last Friday but will investigate the possibility of filing a new lawsuit against the couple in the wake of the settlement.

“IBA continues to believe that Wonn Road goes to the water as a matter of law and that any surrender (vacation) of the disputed area to a private landowner violates state law (RCW 36.87.130),” according to a press release from IBA.

Commissioner Helen Price Johnson was the only commissioner to oppose the settlement, saying there were too many restrictions that did not align with county and state code.

Commissioners took public comment for nearly 90 minutes from a standing-room-only crowd of 70 people who frequently booed and yelled out their feelings. Almost all the comments opposed the agreement, saying it violated state law and gave the Montgomerys too much authority on how the beach should be used.

“The bottom line is that unregulated access to a public beach is being abridged by this settlement,” said Steve Perce with Whidbey Island Sea Kayakers.

Aaron Laing, attorney for the Montgomerys, told the commissioners that he and Joanne Montgomery removed the chain and “no trespassing” sign at the end of Wonn Road “as a good faith effort.” He called the settlement “a win for the county, a win for the Montgomerys and a win for the public.”

People at the meeting also urged the commissioners not to rush into signing the agreement that was only made public last week.

Jane Seymour, pro bono attorney with Island Beach Access, said the board didn’t need to rush into a decision because a trial was no longer looming.

“The commissioners have time to reflect. All the trial dates were stricken Friday,” she said. “Craft an agreement you can be proud of and will not violate state and county law.”

Jessica Leon, of Clinton, held up a petition with 360 signatures from county residents urging commissioners to reject the settlement.

”We need to feel like the county is advocating for us to walk the beach,” Leon said. “It’s sacrosanct and it’s not permissible to be harassed.”

County Prosecutor Greg Banks started the meeting by reviewing the dispute’s history and his reluctance to take the matter to court.

“I think it would be a high-risk proposition for the county to proceed to trial,” Banks said. “The Montgomerys are the third owners (of that land) and it states on the deed that it includes the tidelands.”

While the Montgomerys claim the beach is part of the land they own, the county views it as an extension of Wonn Road, a short, paved stretch across from Greenbank Farm that ends at water’s edge.

The county sued the Montgomerys in 2013. IBA, a watchdog group, joined the lawsuit on the county’s side as an intervenor. Twice, judges ruled against the county and IBA in summary judgments.

IBA said it chose to withdraw in order to possibly re-file its own case and because the attorney for the Montgomerys “threatened to seek compensation from IBA for fees, costs, and expenses estimated at $50,000 -$100,000,” IBA said in a press release. As part of the agreement for IBA withdrawing its claims, the Montgomerys agreed not to seek such compensation.

The settlement splits a 50-foot-wide section of land that begins at the stone wall and leads to the tidelands. The wall will remain on the private side but be knocked down where the 25-foot-wide public path begins.

Under the terms of the settlement, the county won’t be able to develop the property. That means no dock, permanent bathrooms or even picnic tables. All county park rules will apply to the site, such as it being open dawn to dusk and no fires or camping will be allowed. Additionally, glass bottles would be prohibited, a ban wanted by the Montgomerys.

People would be able to use the area to launch kayaks and other small non-motorized boats. Like other county parks, launching boats from trailers and jet skiing will not be allowed. No parking is allowed on the narrow Wonn Road under current law.

Examples of “harassment” experienced by people driving to the end of Wonn Road or attempting to walk the beach were also given at the meeting. One woman described being yelled at by property owners and another said sheriff deputies were often called to boot trespassers.

Beach property owner and Greenbank resident Elaine Burgwald told commissioners she’s never encountered illegal or bad behavior from people walking the beach and tidelands near her home.

“I’ve been living on that beach since 1957,” she said. “I’m in favor of just leaving things as they are.”

Resident Dan Russell said he objected to Banks’ assertion that the compromise was akin to agreeing “to split the last piece of lasagna with my sibling.”

Russell, who said he works with children, likened the agreement to bullying.

“If someone steals your lunch money and then offers you back $1, you may want to take the dollar but you know it’s not right,” Russell said. “This is about what’s right. This is public land. This is taking by a private person.”

At several junctures after the public hearing, board chair Jill Johnson chided the crowd when they booed during the commissioners’ discussions.

“I’m asking for respectful behavior,” Johnson said.

Commissioner Helen Price Johnson urged her colleagues to table the item and not vote.

“We are not under the gun as we were before,” Price Johnson said. She objected to the agreement’s stipulation that the Montgomerys could enforce restrictions.

“That seemed highly unusual on public property,” she said. “Couldn’t the Montgomerys make it very difficult for people?”

Commissioner Richard Hannold said he’d been willing to change his vote at the last minute one year ago over a different settlement. But no new information had been presented to sway him to do that again, he said.

Johnson said approving the settlement gave the public immediate access and that going to trial was too risky. Those willing to take that gamble, she said, were being “selfish” and “self-serving.”

“To gamble with public beach access is not something I’m comfortable doing,” Johnson said. “I think this win is a big win for Island Beach Access. I think you should be proud in your involvement.”

More boos greeted her remarks.

After the motion to accept the settlement agreement was finalized, one final yell rang out: “Drain the swamp.”

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