Public access: Beach debate heats up

By Shanna Green

The issue of who owns the beach has been a hotbed for debate in Birch Bay and has surfaced several times over the years in the form of James Way, a small undeveloped county-owned right of way which has been requested for vacation three times by landowners.

A vacation of James Way was first requested in 1966, and then again in 2000 by Pete Hansen who then owned the land. The current owner of the lot next to James Way, Evelyn Christensen is now asking the county to vacate the right of way and allow her to purchase the property at market value, which the county public works department determines to be about $2 per square foot. Since this right of way runs at an odd angle, Christensen claims it decreases the value of the lot and has prevented her from being able to sell it.

The past two requests for vacation were denied, and the council has tabled the previous request to be looked into further and decided at the August 5 meeting, after many residents stepped forward to oppose the vacation, stating that the land is protected by a 1912 dedication of the right-of-way to the public for public use. This dedication, known as Birch Bay Park (First Addition), states that the landowners “hereby dedicate all the streets and alleys of said above described plat to the use of the public forever.”

Ty Whitcomb of the Whatcom County public works engineering department said James Way may have been dedicated for public use, but was never intended to provide public access to the beach area, which he said was not dedicated to the public in the Birch Bay Park First Addition.

Whitcomb said people are confused because they are combining the first addition dedication with the original 1910 Birch Bay Park dedication, which dedicated “to the use of the public forever, all of the lanes, alleys and streets as laid out thereon, except the beach reserve: The use of which is dedicated to the public for bathing purposes only and as a public play-ground and resort for all of the owners of lots in the above plat and occupants thereof.”

Whitcomb said the dedications are separate from one another and threfore do not apply to each other. Thus, the first dedication did not dedicate the beach lying in front of James Way, which is now privately owned.

Although Whitcomb said that the dedications do not apply to each other, Kary Gobbato, the owner of the property across the street from James Way pointed out that Birch Bay Park (First Addition) is also commonly known as Birch Bay Park, and says so in the dedication.

Whitcomb said any other wording could have been used to name the dedication, but that when it was done, the county just happened to choose Birch Bay Park (First Addition).

Gobbato said that there are many questions concerning whether or not the beach ever should have been sold or if James Way can be vacated.

“What I feel like is we’re setting a precedence here,” Gobbato said. “It’s a very gray area; it’s affecting everybody who bought that property.”

Although the public works department did recommend, in the form of a letter, that the council oppose the vacation, they denied that James Way provides a public access or was ever intended to. If vacated, Whitcomb said it would not change anything for residents who had legally been entitled to access before through deeds, private easements, or right of way.

“Whatever rights of access you have will still be there,” Whitcomb said.
Thus, the issue seemed to be whether or not James Way provided public access to the beach, but the question now is what happened to the public beach reserve, which was dedicated. This is what county council members were left asking after the July 8 meeting and no one seemed to have the answer.

“My concern is what happened to the beach reserve,” said county councilwoman Sharon Roy. “Public access should be something held pretty sacred; this just isn’t going away.”

After hearing the complaints from Birch Bay residents about the possible vacation, councilwoman Laurie Caskey-Schreiber said that she would like to see the issue looked into further.

“I’m really queasy that we could just lose a beach reserve and have no accountability for it,” she said.

Whitcomb estimated that the county now only owns about 10 percent of the beach area of Birch Bay, and the other 90 percent, including tidelands and beach-front parcels is privately owned.

Lynne Givler, the operations manager for the Whatcom County Parks and Recreation said that the county owns 219 acres of tidelands and beach area in Birch Bay, but that where those areas are located is very confusing.

“It’s not very clear,” Givler said. “I don’t really know myself.”

Another issue around the vacation is whether or not it would violate the Revised Code of Washington 36.87.130, which states that vacation of roads abutting bodies of water are prohibited unless for public purposes or industrial use.
Whitcomb said the vacation would not violate this law because the road leads to privately owned land and not the water directly.

“If we believed that was the case, we wouldn’t vacate it,” Whitcomb said.
When asked about the law, Roy said that she had not been aware of it, but that she would need a better explanation than that.

Pete Hansen, who owned the land next to James Way before Christensen, said that there is not as much public beach as most people think.

“If you go down Birch Bay Drive, there’s not many areas that are public beach,” Hansen said. “You’ve got a mile in there that’s state park.”

Hansen said many of the public accesses actually lead down to land which is privately owned.

“In a sense, when the public comes down and uses Alderson, they’re trespassing on private beach,” he said.

Roger Anthony, the vice president of the homeowners association at Palm Beach condos, located on the corner of Alderson Road and Birch Bay Drive, said that with many of the public access sites, people can walk straight out to the beach, but if they go a few feet to the left or to the right, they are technically on private property.

“We don’t have a problem with people coming down and going across the grounds,” Anthony said. “But public access to the beach does not mean public access to private property.”

Hansen said he was just as concerned as anyone else with the lack of public access to the beach and like everyone else, he does not know what happened to the beach reserve.

“Whatever happened to the beach reserve happened before I came here,” Hansen said.

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