A fight over property rights on Henry Island

A Henry Island couple has brought a lawsuit against the San Juan County Land Bank regarding public access to a shared property.

Claes and Kathleen Eklund, Henry Island property owners, filed the suit against the county agency on Dec. 27, 2019, in Whatcom County.

“We thought we were working through the issues, so the suit came as a surprise,” Land Bank Director Lincoln Bormann told the Journal.

In the complaint, the Eklunds explain that they share half of a tenant-in-common ownership of a 0.748-acre property with shoreline access with the county. This property, the Ecklunds said, allows the couple to anchor their boat and access a road that runs from the shared property through the county-owned land to their own.

According to the lawsuit, the Eklunds have owned their 52-acre parcel since 1989. When they purchased the property, they also acquired half of the tenant-in-common interest of the shoreline access property — the sole access to the land. Located between the Eklund parcel and the shared property is 80-acres of land, tentatively named Kellett Bluff Preserve, that was donated to the land bank in December 2016.

Bormann told the Journal the best access to both properties was via the shared land as it has the best beach between the three parcels. The preserve is open to only non-commercial, non-motorized craft, he explained, adding that it has very light visitation. He added that in fall 2019, the land bank moved its public entry to a small cove to the north of the beach, on the preserve’s parcel, in response to the Eklunds’ concerns.

The Eklunds stated that the county allowing the public on a shared beach is restricting their right of privacy on a quiet, waterfront recreational area which they own. The document also explained that the public access interferes with the couple’s ability to secure and retrieve their own boat when anchored at the shore.

According to the lawsuit, the county installed a sign on the common lot inviting public use, which states, in part, “This property was purchased by the citizens of San Juan County through the San Juan County Land Bank. … Day use and pedestrian access only. … Please enjoy this area’s natural beauty and keep it unspoiled and litter-free.”

The land bank created a document titled, “Kellett Bluff Preserve Interim Management Plan,” in 2017 that outlines the agency’s intentions for the property. A final version has not yet been produced. In the document, the county suggests those wishing to visit the preserve do so by entering via the beach on the common land.

A Declaration of Restrictive Covenants between the two previous property owners — divorcees who owned both lots but split ownership of them in the separation — was that the common land would be used only for ingress and egress to the two properties, for utilities, and as a waterfront recreational area, and only by themselves and/or future owners of a maximum of 13 privately-owned single-family residences, according to the lawsuit.

In the lawsuit, the Eklunds stated that the county intentionally opened the common land for public use without the couple’s prior consent and in violation of the original agreement. Because the Eklunds co-own the property with the county, they said in the lawsuit they are permitted to exclude anyone from the common land that is not a co-tenant.

“The County ignored the limitations on its use and opened up that parcel for unlimited public access and use,” the Eklunds’ legal representation stated in the lawsuit. “Not only did the County fail to notify [the] Eklunds of the County’s intent to allow public use, the County did not request Eklunds’ prior written consent for such use, and did not even notify Eklunds that the County had acquired an interest in the Common Land.”

According to the lawsuit, the Eklunds’ valuable property right was taken away by the county allowing public use of the common land and therefore the Eklunds have suffered and are continuing to suffer damages to the value of the common land, their own property and their “rights, enjoyment and exceptions for their property.” Allowing public use has also exposed the Eklunds to potential liability issues, according to the lawsuit. The Eklunds claim that the county allowing public use of the common area is a financial responsibility on the Eklunds who are, “forcibly subject to claims and payments for property impacts and maintenance costs arising solely and unilaterally from the county’s actions…”

Finally, the Eklunds’ lawsuit claimed the county has rebuffed the couple’s efforts to amicably resolve the dispute.

According to the lawsuit, the Eklunds are seeking undetermined damages and other sums for the aforementioned complaints as well as attorney fees, costs and expenses; asking the county to post “No trespassing” signs, close the common land to public access, and make public declaration of said actions; prohibiting the county from “inviting, permitting, encouraging, or advertising” the common land for public use; requesting the county post signs to provide public access via a beach located on the land bank’s property; and requiring the county to indemnify and hold harmless the Eklunds from any liability regarding the common land.

In a 2006 lawsuit, the Eklunds stated that the common land beach — known as Spring Beach — is the, “only practical place for shoreline access to the [adjacent] properties because it is the only place that is sheltered from wave action and that has a bank low enough for access to be possible without a major engineering and construction effort.” The lawsuit was against the land bank property’s previous owner Sarah Hart and the neighbor to the south of the land bank property.

The Eklunds applied for an application to build a dock on the common land in 1998 which was denied by both the San Juan County Hearing Examiner and County Council — then known as the County Commission. The couple appealed the decision to the Shorelines Hearing Board, which approved the dock in 2000, the Eklunds said in the 2006 lawsuit.

The San Juan County Prosecutor’s Office and Permit Center told the Eklunds that they could not build the dock without consensus from the other two property owners who use the beach. The lawsuit was dismissed. A lawsuit pursuing permission to build a dock on the property was also brought by the Eklunds in 2004; that request was also dismissed.

The Eklunds are being represented by Scott Missal and Brian Epley of Seattle-based Ogden Murphy Wallace, PLLC.

“We are looking to continue our conversation with them and are hopeful that we will find a resolution that is beneficial to everyone involved,” Bormann said.