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O’ville battle reaches state appeals court

County fears commercialization of bay shore
Natalie St. John

Published on November 29, 2017 7:06AM

The Washington State Court of Appeals heard oral arguments Tuesday in an appeal of a court ruling that appeared to allow oysterman Dan Driscoll to return to legally selling a greater diversity of products at his family’s historic Willapa Bay-side processing plant.

OBSERVER 2015 FILE PHOTO

The Washington State Court of Appeals heard oral arguments Tuesday in an appeal of a court ruling that appeared to allow oysterman Dan Driscoll to return to legally selling a greater diversity of products at his family’s historic Willapa Bay-side processing plant.

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TACOMA — The long-running legal battle over oyster grower Dan Driscoll’s retail shop continues.

As of print deadline on Tuesday, Nov. 28, Driscoll’s attorney, Ben Cushman, and Pacific County Deputy Prosecutor Eric Weston were waiting to begin a 30-minute hearing in the state Court of Appeals in Tacoma. It may be weeks or months before the panel of three judges issues a decision on the case.


Lengthy dispute


Driscoll ran afoul of the county’s Department of Community Development several years ago, after opening a small retail shop in the historic cannery on his Oysterville oyster farm. His family’s cannery went into business well before the county enacted its current codes, Shoreline Master Program and zoning rules. As a result, Driscoll was allowed to open the shop, even though it’s in an area where new retail and food businesses are not allowed.

Community Development officials initially worked with Driscoll on the permitting and approval processes. But later, they decided Driscoll had overstepped by expanding his shop’s inventory and adding a small deli that served seafood, wine and beer. In 2014, DCD officials cited him for alleged violations of county policies.


In search of a third opinion


Driscoll fought back by requesting a hearing in Pacific County District Court. Former District Court Judge Doug Goelz found Driscoll guilty of violating rules about indoor seating and selling alcohol, but was otherwise sympathetic to Driscoll’s view that the county was micromanaging a legal business. Both sides appealed aspects of Goelz’s decision in Pacific County Superior Court.

In a ruling that was highly favorable to Driscoll, visiting Superior Court Judge Bill Faubion found Driscoll not guilty of any infractions. Fearing Driscoll’s tourist-oriented business could set a precedent that would allow more restaurants or shops to open along the environmentally-sensitive shoreline of the Willapa Bay, the county asked the state Court of Appeals to reconsider the case.


Legal battle over surf n’ turf


Both sides’ arguments are complex, and touch on a number of unresolved issues about how the county’s codes and land-use policies apply to Driscoll’s property and business. In his legal brief, Weston, the attorney for the county, contended that the district court and superior court acted outside of their authority during the previous hearings. According to Weston, Judge Goelz made two big errors: first, he allowed Driscoll to address land-use issues during a hearing that was about a violation of county codes. The county considered the land issues to be “previously resolved,” and believed the district court should not have taken them into consideration. According to Cushman, county policy clearly states that district court did have the authority to consider land-use issues in Driscoll’s case.

Secondly, Weston said, Goelz incorrectly ruled that the county could not enforce land-use regulations in Driscoll’s case.

Once the case reached superior court, Weston said, Judge Faubion wrongly reversed parts of the district court decision. Faubion was not supposed to re-try the case, Weston said. Rather, his only job was to decide whether Goelz’s legal reasoning was sound.


An intensifying debate


Much of the battle over Driscoll’s business has to do with differing opinions about whether he “expanded” his business, or merely “intensified” it. Faubion ruled that Driscoll had the right to intensify his business by offering more products. He also said allowing customers to eat and drink in on the store’s deck would not cause any environmental harm.

Weston’s brief reveals that the county is mostly worried about Driscoll paving the way for other businesses to spring up along the shoreline.

“Following the Superior Court’s logic, Mr. Driscoll’s next step could be to place a Red Lobster in historic Oysterville,” Weston wrote. So far, the county’s fears have not been realized. Since Faubion’s July 2016 decision, no one has asked to build a Red Lobster — or any other restaurant — in Oysterville.


The disorganization defense


Weston acknowledged that various county and state officials worked with Driscoll during the early stages. However, he wrote, Driscoll “failed to appreciate that the health department, the building department and the planning department are separate departments” that enforce different sets of rules and laws. Furthermore, he said, approval from each of those departments did not give Driscoll the right to set up a business that was forbidden by zoning and shoreline rules.

“Just because the state issues a black-powder hunting license does not give the felon permission to possess a firearm,” Weston wrote.

Additionally, Weston said, it was a mistake to assume that the various county authorities involved in the approval process communicated or collaborated with one another.

“The district court assumes incorrectly that each department routinely discusses its work with other departments, let alone is compelled to,” Weston said. He also noted that under state law, the county has the right to enforce its rules, even in cases where employees previously permitted someone to break them.


Cushman’s response


Driscoll’s attorney, Cushman, says the county misinterpreted or ignored some of its own rules. For example, he said, the county opposes Driscoll’s use of his cannery, which is on the National Register of Historic Places, even though a county land-use policy orders authorities to “Identify, protect, preserve and restore important archaeological, historical and cultural sites located on shorelands.”

He also argued in his brief that the county lacked both the grounds to press some of its points, and the evidence to support them. While the county claims Faubion exceeded his authority by re-trying parts of the case, Cushman said Faubion was merely establishing the facts for the record. “[The county] has failed to explain how [Faubion exceeded his authority], and has failed to identify any evidence to support its claim,” Cushman said.

According to Cushman, during the superior court appeal, the county was limited to appealing only the seating and alcohol infractions for which Driscoll was originally found guilty, but raised the land-use issues anyhow. He alleges that the county is still trying to use the court system to settle land-use issues that were never part of the appeals case.

“The county is asking this court to rule on legislative issues that were not appealed, and greatly exceed the scope of anything that could be appealable,” Cushman said.



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