The news that the owners of the Doghouse intend to tear down the structure is sure to ignite a debate within the community. Before addressing the legal issues it should be made clear that the city supports the preservation and restoration of the Doghouse. The Record did a reasonable job covering the issues in Saturday’s newspaper article, but some key facts were left out that are fundamental to the city’s position on this matter. The City’s ability to vacate the street is restricted by state law and is not simply a matter of city discretion. RCW 35.79.035 restricts the city’s ability to vacate a public right of way that provides access to the shoreline. The area beneath the porch and stairs at the Doghouse is within the Anthes Avenue right of way, which was established as part of the original plat of Langley by Jacob Anthes. It provided access to the site of the first marina in Langley, now known as Seawall Park, and is also a key part of the city’s history. While historic preservation is an important public issue so is public access to the shoreline, which is a principal purpose of Washington’s Shoreline Management Act. Any vacation by the city subjects both the city and the property owners to legal challenge for violating RCW 35.79.35 as has occurred over other shoreline public access issues on Whidbey. A protracted legal challenge is not in anyone’s interest. It’s unclear if any vacation would be challenged, but from the city’s perspective there are other less risky and costly alternatives to allow for the preservation of the Doghouse. The city’s own Shoreline Master Program has strong requirements for the expansion and retention of public access to the shoreline as a significant public benefit. For these reasons, and despite strong support for the preservation and restoration of the Doghouse, city staff is reluctant to support a vacation of the right of way considering there are better options available.
The encroachment of the porch and stairs into the city right of way has existed for over 100 years as they are original features of the structure. In 1975 the City of Langley granted a 10′ easement to the owners of the Doghouse at the time to address the encroachment. It was not known at the time that the encroachment was actually approximately 13′ in the public right of way so the existing easement does not encompass the entire area of the porch and stairs. The city has offered to provide an updated easement that encompasses the entire area of the porch and stairs, documents the city’s strong support for the preservation of the Doghouse (and that historic preservation is also a valid public purpose) and the continued use of the public right of way. The issuance of an easement was acceptable in 1975 and should be an acceptable means to allow for the renovation of the structure. The issue with the easement being revocable is not a city imposed condition. Case law suggests that any granting of the use of a public right of way is revocable by the city regardless of any actions the city may take. However, it seems very unlikely the city’s support for the Doghouse and historic preservation would wain. It hasn’t been an issue in the 100 years the porch and stair encroachment has existed or in the almost 35 years the owners of the Doghouse have had an easement for the use of the right of way.
The land swap option is a way to allow the owners of the Doghouse to obtain ownership of a portion of the right of way while being in compliance with RCW 35.70.035 and minimizing the risk of legal challenges. The owners of the Doghouse could provide a piece of land that is of equal value to the property beneath the porch and stairs. Given the property along the watefront is more valuable it would likely be a very small portion of the existing lot and would encompass a portion of the gravel roadway along Seawall Park that is actually on private property. The owners have expressed a willingness in the past to provide public rest rooms on their property and this could potentially facilitate the development of a public amenity and enhance public access. This issue is not about the city demanding property, but about giving the owners options to allow for the renovation of the structure in a timely, cost effective and legal manner. It should be noted that because the owners of the Doghouse rescinded their vacation request the public did not have an opportunity to weigh in on these options and public input would also be a factor in any decision by the city.
For more information on the legal issues associated with the street vacation request please refer the planning department’s staff report on the issue that included review by the city attorney. The report may be obtained here