Tom Evans of Box Bay Shellfish Farm, LLC has filed a suit in King County Superior Court regarding vacation rentals against San Juan County, the state Department of Natural Resources and Dan and Cheryl Stabbert. (The map above shows properties with vacation rental permits.)
The Stabberts own two properties next to Evans and are in the process of obtaining two vacation rental permits which would allow 18 people to stay.
Evans says the state regulations do not allow commercial activity on community docks. He wants DNR to enforce the regulation and is asking for an injunction.
Among other things, the suit claims San Juan County:
"SJC has never studied the impacts of VRBO’s including the massive increase in numbers, and has no plans to study VRBO impacts on the islands; ...
"SJC has taken the position that every single VRBO has no environmental impact whatsoever and is so dismissive of environmental impacts that it doesn’t even require any applicant to fill out a SEPA checklist – the absolute lowest possible level of excuse from complying with any potential environmental impacts...
"The unchecked approval of VRBO’s is having the effect of further driving out lower income properties as the advertising and selling of residential real estate now includes the extra bonus of selling to prospective buyers by promising the addition or continuation of a flow of revenue, derived from an unchecked stream of renters whose income allows persons to buy residences in the San Juan’s they could not otherwise afford but can by VRBO, a form of absentee ownership."
The text of the Complaint and Petition for Uniform Declaratory Judgment Act Relief, Injunctive Relief and Violation of Civil Rights is posted below.
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF KING
BOX BAY SHELLFISH FARM LLC, a Washington Limited Liability Corporation (BOX BAY);
THOMAS C. EVANS, an individual, separate estate non-communal property, (EVANS) Plaintiffs/Petitioners,
SAN JUANT COUNTY, a Washington County, (SJC);
DAN & CHERYL STABBERT, a marital community, (STABBERT);
THE STATE OF WASHINGTON DEPARTMENT OF NATURAL RESOURCES (DNR);
COMPLAINT AND PETITION FOR UNIFORM DECLARATORY JUDGMENT ACT RELIEF (RCW CHAPT. 7.24); INJUNCTIVE RELIEF (RCW CHAPT. 7.40); VIOLATION OF CIVIL RIGHTS PER 42 U.S.C. 1983
I: JURISDICTION AND VENUE
1.1: This Court has jurisdiction over these matters under State Law vesting general jurisdiction in the Superior Courts of the State. Venue is proper in King County as both Petitioners and Respondents are either resided within or maintain a substantial presence in said County.
2.1: Plaintiff/Petitioners - Box Bay Shellfish Farm LLC is a Washington Limited Liability Corporation, whose existence, including pre-incorporation, spans a period of eight years, growing oysters. Box Bay is also a non-profit corporation which neither seeks nor accepts contributions and does not generate any revenue by sales or barter. Box Bay raises oysters exclusively for water quality purposes, and has oyster grow operations in Box Bay, Orcas Island, as well as in a small Bay just East of Box Bay, and along the rock walls of the East and West side of the Evans property located at the South facing peninsula of Obstruction Point. It is well known oysters contribute to the cleansing of surrounding salt waters; and each oyster filters approximately 50 gallons of water an hour. Box Bay currently grows approximately 20,000 oysters, most in holding cages lying on tidal flats, but also in cages handing from slab rock as a means of improving the strength and viability of the oysters. Box Bay is considered a small, hobby farm. Oysters are a byproduct of the saltwater cleansing purpose, so Box Bay also gives away oysters in quantity for charitable events and on occasion serves as a schooling oyster farm grow for purposes of teaching children about oyster farming. Box Bay also maintains a readily available holding grow bag full of oysters to which neighbors are invited to take for free with the only rule being take all you want, just eat all you take. Box Bay has participated in the State of Washington sentinel monitoring program for purposes of testing for pathogens and toxins and has access to the otherwise non-public, current toxin and pathogens and halts all oyster give-a-way at the very first sign of toxin or pathogen presence.
2.2: Thomas C. Evans, as his individual non-communal property, is a Board Member of Box Bay and also serves as general manager. Evans resides on the Southern most tip of Obstruction Point, Orcas Island, immediately adjacent to property owned by Stabbert. Stabbert activities directly affect both Box Bay and Evans, as will Stabbert’s proposal to seek permits for two, immediately adjacent vacation rental permits allowing for up to a total of 18 renter/resident persons to use the dock and pier. This would directly negatively impact Evans and Box Bay by renters being granted use of the private, jointly owned joint use dock. Evans is assessed for property tax purposes on the dock, is obligated to pay for liability insurance, is at risk for liability claims by injured renters over which he has no control, is obligated to make repairs and pay for damage done by renters, but does not share in any revenue and does not wish to share his private use residential dock, Vacation renters have a propensity to trespass on and abuse rented property including privately owned joint use docks, generate noise from parties and inebriated guests, clog the small private road which accesses both the Stabbert and Evans properties. These proceedings are brought, as outlined in detail below, to adjudicate the specific statutory and administrative provisions governing DNR’s authority to regulate and control privately owned joint use docks and buoys, which previously specifically prohibited any commercial, revenue generating or related use of joint use docks and buoys. In a three letter series of completely contradictory opinions, and without proper use of administrative code process, DNR first issued a letter strictly prohibiting vacation rental use as violating statutory and WAC provisions prohibiting any use for revenue generating purposes and non-recreational use. These provisions are, in part:
For Docks, WAC 332-30-144(2)(c): A “private recreational purpose” being a nonincome-producing, leisure-time, and discretionary use by the abutting residential owner(s).
For Buoys, RCW 79.105.430(c): “The buoy cannot be used to moor boats for commercial or residential use.
The first letter opinion issued by DNR is dated May 7, 2018 is attached as Exhibit 1. It states in pertinent part, “If you intend to allow renters of your vacation property to use the dock, you would need to apply for an authorization from DNR…” The clear prohibition of use by renters is stated as follows, “Allowing use of the dock through a short-term rental agreement disqualified them from the private recreation dock exemption.”
The second opinion came by email to Dan Stabbert, dated June 9, 2018, attached as Exhibit 2, states in pertinent part: DNR would consider things such as walking out to take a photo, look at the bottom for crabs, look at a sunset as incidental to the dock and would not preclude the dock from qualifying for a no-fee private recreational dock…”
Thus, within a matter or weeks following the first letter the DNR decided it would be ok if renters used the private dock, but only if they walked on it "to watch sunsets…to look at the carbs…" Then within weeks of the second letter, the DNR issued yet a third letter, completely contradicting its first letter, and allowing wholesale renter use of the privately owned dock.
This third letter is attached as Exhibit 3, and is based on the fiction that if a vacation rental homeowner didn’t charge specifically for dock use, then it had nothing to do with the obvious extra amount of money a rental with a dock would produce. The DNR could have used is ability to conduct hearings over proposed WAC changes but it chose not to do so. As of now, the DNR allows for wholesale rental use of dock and buoys, directly impacting both Box Bay and Evans, and contradicting RCW 79.105.430, and WAC 332-30-144(2)(c).
2.3: Respondent/Defendant San Juan County is a Washington County with a Planning Department and Hearing Examiner appeal system adopted by Ordinance adopting RCW 36.70.970(3) and not by Washington law Planning and Enabling Act land use per Chapter 36.70 RCW. SJC activities give rise to these proceedings as outlined below. Relief is sought herein going beyond the immediacy of the two Stabbert vacation rental applications, including relief as to the general failure and complete abandonment by SJC to do any environmental or comprehensive planning regarding vacation rental, or comply with basic environmental and planning law1 , such that:
1. SJC has no idea how many VRBO’s (vacation rental by owner) it has licensed in SJC;
2. SJC has no plan whatsoever to limit or allow and control and limit to the number of VRBO’s;
3. SJC has no program monitoring or pursuing any and all illegal VRBO’s and any VRBO owner is practically much better off by not seeking legitimacy by permit, therefore SJC is losing thousands if not hundreds of thousands of tax revenue by giving unlicensed VRBO’s a complete pass;
4. SJC has completely abrogated control and enforcement of VRBO violations directly impacting neighbors by simply turning VRBO control over to real-estate industry interests such that loud, boisterous, damaging behavior is left to a property agent who may not even reside close to or on the same island as the VRBO in violation;
5. SJC has never studied the impacts of VRBO’s including the massive increase in numbers, and has no plans to study VRBO impacts on the islands;
6. SJC has taken the position that every single VRBO has no environmental impact whatsoever and is so dismissive of environmental impacts that it doesn’t even require any applicant to fill out a SEPA checklist – the absolute lowest possible level of excuse from complying with any potential environmental impacts;
7. Contrary to one of the most basic precepts of environmental law – identify cumulative impacts, that is, situations where a single permit or application may not any significant environmental impact but collectively all similar such permits may resulting in devastating cumulative impacts, as is the case with VRBO’s and San Jun County;
8. The unchecked approval of VRBO’s is having the effect of further driving out lower income properties as the advertising and selling of residential real estate now includes the extra bonus of selling to prospective buyers by promising the addition or continuation of a flow of revenue, derived from an unchecked stream of renters whose income allows persons to buy residences in the San Juan’s they could not otherwise afford but can by VRBO, a form of absentee ownership.
The above is relevant to these declaratory proceedings in that all of the above results in much more unchecked access to public lands and water related resources including docks and buoys, specifically. This "free for all" takes private property from owners in the form of allowing renters in large numbers to take and use privately owned docks as well as privately owned buoys.
Finally, no money Judgment for monetary damages is sought against SJC, only reasonable costs and reasonable attorney fees, pursuant to 42 U.S.C. 1983 et.seq.
2.4: Dan and Cheryl Stabbert are a marital community residing in Kirkland, Washington, but also owning the property adjacent to Plaintiff/Petitioners as described herein. Stabbert is, in concert with SJC, the subject of all claims herein, excepting for relief allowed under 42 U.S.C. 1983 against SJC and DNR. Stabbert is the owner/sponsor/promoter of the two vacation rentals with 18 proposed renters referenced above, and is also the co-owner of a joint use dock and some buoys which are presently under arbitration proceedings. As referenced herein, these proceedings seek no relief against Stabbert subject to said arbitration proceedings and no money Judgment or attorney fees are sought against Stabbert. However, Petitioners above do expect Stabbert to be bound by the law, as determined by this Court with respect to SJC/DNR legal obligations as stated herein. The Stabbert property for which vacation rentals are proposed and joint use docks and buoys also used by renters is in direct violation of RCW 79.105.430 RCW / WAC 332-20-144, the State Department of Natural Resource law and administrative provisions which strictly prohibits any revenue generating purpose, including offering a dock walk-out and use as part of a VRBO rental amenity, a legal restriction which was made clear to SJC and Stabbert by Letter dated May 7, 2018, attached, but now reversed. This is a legal interpretation completely unsupported by the law and facts, but has offered encouragement to Stabbert. Even in spite of RCW 79.105.430 /WAC 332-20-144, Stabbert now intends to offer the dock and buoy use as an advertised rental use amenity.
2.5: The Washington State Department of Natural Resources ("DNR") is that State agency with jurisdiction over private joint use docks pursuant to RCW 79.105.430 and WAC 332-20-144. The State of Washington Department of Ecology, by law, also requires that joint use docks not be used for commercial purposes and Chapter 90.58 RCW contains many of these restrictions prohibiting commercial, revenue-generating use, but it is the DNR's obligation to inspect and enforce these limitations. DNR is sued herein for declaratory judgment, with a court finding said private joint use docks and buoys may not be used for a commercial/income producing purposes, including to earn a higher rental fee by advertising, promoting, and allowing VRBO’s (including Stabbert) to include use of a private dock and buoys by one of the co-owners for rental income, at the direct expense of the other owner. Further, to declare use is also by law limited to leisure time and discretionary use by the abutting residential owners, who are also the only persons legally liable for personal injury, paying additional real estate taxes on the added value a dock adds to assessed valuation to their residential assessment, and for maintenance and upkeep, repair in the event of storm or other damage. To have the Court also declare a co-owner may not rent the co-owned private residential dock for their sole income producing purposes as part of their income gains from offering the dock as a rental amenity. Finally, DNR is also sued for violating the civil rights of petitioners under 42 U.S.C. 1983 et. seq. for reasonable costs and attorney fees. No money Judgment other than costs and fees are sought against DNR.
III. FIRST CAUSE OF ACTION: SUIT FOR DECLARATORY JUDGMENT PURSUANT TO RCW CHAPTER 7.24
Petitioner/Plaintiff do re-allege all of the above and do further allege the issues above are controlled by rights and status under written instruments, statutes, and ordinances, whose construction and validity directly impact the rights and entitlements of Petitioner/Respondent on each of the issues above. By way of example but without limitation, Petitioner/Plaintiff seek a declaration pursuant to RCW 7.24.020 that:
(1) The Shoreline Management Act, at RCW 90.58.030(e)(vii) limits any dock to "construction of such dock …shall…be for the private non-commercial use of the owner, lessee, or contract purchaser…" declaring rental of such docks is both a commercial use and is legally prohibited by the above;
(2) RCW 79.105.430/WAC 332-20-144 prohibits use of docks otherwise requiring a DNR lease from any revenue generating/commercial use and a vacation rental constitutes such a use, even if the use consists of sun-tanning, walk-out viewing, picture taking, swimming, and this is part of a vacation rental amenity being paid for;
(3) Declaring vacation rental by residential owners for personal profit is a commercial use as demonstrated the amount of revenue paid by renters, such as in this case where rent is likely to meet or exceed $1,750.00 per night for each of the two units, combined. Vacation rentals are required to pay hospitality taxes, such rentals are also required to obtain a UBI number and pay State and local taxes just like any other business. Further, and in conjunction therewith, declaring the reference in SJC Code to "Vacation rentals are a commercial use but considered residential for land use" means exactly what it says: vacation rental is a commercial use.
(4) Declaring SJC Code 18.20.080, "H" "Hospitality commercial use means restaurants and vacation rental establishments and associated guest facilities available for short term accommodations for a period not to exceed 30 days" unarguably makes vacation rentals a commercial use, and references in SJC zoning code stating vacation rentals are residential in nature for zoning purpose does not, in any way, negate that very self-evident fact that a use can be undeniably commercial in nature but still be operated from a residence in a residential zone. Further, as stated above, Comp. Plan Sec. B, Element 2.2.A.12 declares vacation rentals as hospitality commercial requirements, yet SJC is not properly applying this requirement.
IV. SECOND CAUSE OF ACTION: VIOLATION OF CIVIL RIGHTS UNDER 42 U.S.C. § 1983
(A) By SJC: Plaintiff/Petitioners possess a constitutionally protected property interest in not allowing illegal rental of private joint use docks and buoys, and SJC has an obligation to enforce the law as written. SJC has both shirked its responsibility in enforcing the law, and in not correctly interpreting the law. Where the above legal requirements are the subject of a Joint Use Agreement, which must be approved by SJC, SJC deems enforcement a matter of "a private contract over which SJC has no jurisdiction." This results on Plaintiff/Petitioners losing their property rights in their protected private property, i.e. joint use private dock and buoys, which are then given away for others rental use and money making activities. This is valuable property right that has been lost.
(B) By DNR: The DNR has been utterly and completely inconsistent in its governmental position. First, on May 7, 2018 it loudly and clearly proclaimed the law was exactly as pled above by Plaintiff/Petitioners. Then, on June 9, 2018 by email DNR qualified that opinion to say it was ok to rent the dock out so long as the dock was used only for "sunset watching and watching." Counsel then wrote to DNR headquarters and asked for a final, official position, so the previous communications had been so contradictory. This resulted in letter dated December 4, 2018 signed by Michal Rechner, attached here to as Exhibit 5, which totally turned the May 7, 2018 position on its head.
Clearly, the DNR does not know what it is doing. Plaintiff's counsel repeatedly asked the author of the third letter, Michael Rechner, Aquatic Resources Assistant Division Manager AND the author of the second, emailed letter, Gabriel Harder, to consult with their attorney general, and was told each time "we want to keep the lawyers out of this." Thus, Plaintiff/Petitioner is of a firm belief that if the DNR consulted with legal counsel, these proceedings would have been entirely unnecessary. As is, the DNR actions and activities have denied Plaintiff/Petitioner of a protected civil right in violation of 42 U.S.C. 1983.
No money damages are sought against DNR, only reasonable costs and reasonable attorney fee as per above.
V. PRAYER FOR RELIEF
WHEREFORE, Plaintiff /Petitioners having fully pled as per above, Plaintiff-Petitioners do seek the following relief:
(1) Uniform Declaratory Relief – RCW Chapter 7.24 – That this Court Declare, Adjudge, and Rule, the true law and applicable legal definitions are as Plaintiff/Petitioner has pled, above, so that the parties may know and ascertain their respective legal rights under the law, without confusion or contradiction, without claims by Plaintiff/Petitioner for monetary damages or attorney fees, except to the extent of 42 U.S.C. 1983 against SJC and DNR.
(2) Injunctive Relief RCW Chapter 7.40 – Have this Court find Plaintiff/Petitioner are entitled to the relief sought, and that to allow Respondents to continue unabated will cause true injury and harm to Plaintiff/Petitioner, by illegal use of Plaintiff/Petitioners private property; by allowing ongoing and unchecked approval of vacation rental permits without any environmental assessment of individual or cumulative impacts, damage to the public at large, and improper processing such as granting total exemption form SEPA and the SMA, resulting in private recreational docks and buoys to be rented to the general public; granting relief which requires all respondents, and each of them, from further accepting, processing, or approving vacation rental and associated use that in conjunction therewith would allow public rental of private use residential docks and buoys, until such time as proper planning has been done and proper procedures in place. Such injunctive relief to include a temporary restraining Order and temporary injunction enjoining applicants Stabbert, SJC, and DNR from using, relying upon, or employing any permit(s) or SJC conferred benefits, pendent lite, with said injunctive relief to made permanent upon entry of the findings and conclusions in this matter. Any bond required by RCW 7.40.080 shall be minimal as there is no damage or delay damage to Respondents.
(3) Invasion and Loss of Personal Protected Property Rights By Action Taken Under Color of Law and in Violation of the United States Constitution Per 42 U.S.C. § 1983 – As pled above Respondent SJC and DNR have each taken personal protected property rights from Plaintiff/Petitioner under color of law and in violation of the U.S. Constitution, with SJC having done so by instituting a permit scheme which, instead of protecting the private dock and buoy rights of Plaintiff/Petitioner, is damaging this private property interest.
(4) Each cause of action above and respective claims for relief, are brought before this court collectively, separately, and in any combination best designed to provide Petitioner/Plaintiff the relief sought, but limited to the State law and SJC code interpretation stated above.
(5) These proceedings are brought independent of the November 7, 2007 Joint Use Agreement arbitration proceedings. To the extent the same issues of law and fact are involved, for purposes of this proceeding, this proceeding shall not be considered an appeal or reconsideration of any arbitration award or decision.
(7) Nothing in these claims for relief shall be considered a claim for monetary damages or other strictly monetary relief, except as stated above for purposes of 42 U.S.C. §1983.
(8) SJC, Stabbert, and Petitioner/Plaintiff are all currently involved in separate and non-applicable Land Use proceedings under SJC Hearing Examiner appeal nos. PAPL00-18-001 and PAPL00-18-002. Petitioner anticipates a land use petition act appeal may be brought with respect to the merits of the two proposed vacation rental permits now under separate appeal to the SJC Hearing Examiner. These proceedings are not intended to supplant, adjudicate, or finally determine the legal status of any State law or SJC ordinance referenced or relied upon by SJC in any merit based issue in the permit proceedings referenced above, rather this proceeding is brought for the sole purpose of Petitioner/Plaintiff’s right, under specific State statute, RCW Chapter 7.24, the Uniform Declaratory Judgments Act: RCW Chapter 7.40, State of Washington Statutory Injunction Act; and 42 U.S.C. § 1983, all as plead above, to solely adjudicate the legal status of both statute and State law as per above. If a LUPA action is brought involving the above appeals, and should a Court find any conflict over any part or portion of said LUPA proceeding with this proceeding, the LUPA proceeding shall control and not this proceeding.
Fred Klein Friday, 18 January 2019 10:16 Comment Link
The map included showing existing vacation rentals is truly an eye opener...to imagine that this has no environmental or social impacts and is no different than long-term residential occupancy by owner requires one to be in an extraordinary state of denial.Report