County finally sues over Greenbank beach access dispute

The long wait for Island County to take legal action against a Greenbank property owner and reclaim a disputed public beach access has finally come to an end.

The long wait for Island County to take legal action against a Greenbank property owner and reclaim a disputed public beach access has finally come to an end.

March 6, the  Island County Prosecutor’s Office filed a civil lawsuit against Wonn Road property owner and pharmaceutical giant Bruce Montgomery.

The suit asks for ejectment and quiet title, declaratory relief and to abate a public nuisance. In layman’s terms, the county is seeking to lay legal rights to the disputed beach access, once and for all.

“The county is trying to reclaim the road for public use, all the way to the water,” said David Jamieson, chief civil deputy for the prosecutor’s office.

As of Friday, Montgomery’s attorney, Dennis Dunphy of the regional law firm Schwabe, Williamson & Wyatt, had not filed a response to the county’s summons and complaint.

In an interview this week, Montgomery said he hopes to resolve the issue out of court with a meeting of attorneys. But he won’t back down from a legal battle if push comes to shove.

“We’ll just have to see what happens,” Montgomery said.

He maintains the property is his and called the county’s case “thin.” He said he believes it will crumble under the weight of property records that prove private ownership and past determinations by former county officials.

“It’s a rifle shot lawsuit,” Montgomery said.

The issue erupted nearly five years ago when Montgomery built a rock wall at the end of Wonn Road. The road end is adjacent to his home and forms the beginning of his driveway.

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Montgomery claims the wall was constructed to keep people from driving on his drain field, which is located in the grassy area between the end of Wonn Road and the shoreline.

Members of the community, among them the late Glen Russell, were quick to cry foul, noting the road end was once the head of the long-gone Greenbank Wharf and that the area was always a public beach access.

It was also quickly pointed out that state law clearly states county road-ends are public beach accesses and cannot legally be abandoned by government to neighboring private property owners.

In the summer of 2008, the controversy boiled over into an election issue and the Island County commissioners began taking steps that preceded legal action.

It was another nine months, however, before the board voted to do whatever it takes to reclaim the property and authorized the prosecutor’s office to take Montgomery to court.

That was in late March 2009.

According to Jamieson, the delay is the result of the extensive research needed to build a strong case.

Years of land use records and photographic evidence were examined, he said.

Mike McVay, founder of Island Citizens for Public Beach Access, said it was a long time to wait, so long that many had begun to question whether the county would follow through with the board’s promise.

In fact, McVay said he’s still not convinced the county will go the distance and fight the case to the end. He’s concerned Montgomery has deep enough pockets to financially outlast the cash-strapped county.

“I’m apprehensive is the way to put it,” McVay said.

“We’re hoping for the best.”

Montgomery is founder and CEO of Cardeas Pharma, a Seattle-based pharmaceutical developer. Before that, he was a senior vice president and head of Respiratory Therapeutic for Gilead Sciences Inc., an international biopharmaceutical company with offices in Seattle.

Contrary to the assertions of beach access advocates and county litigators that the property is public, Montgomery claims to have records proving the land was in private hands for nearly 70 years.

He says he’s had the information for some time, but that no county official asked for the documents.

“I think that’s nuts,” Montgomery said.

He also maintains that former county Assessor Dave Mattens reviewed the issue nearly five years ago and determined the property indeed belonged to Montgomery. He even sent him a bill for back taxes.

“This is atypical,” said Mattens, in a June 2008 story that ran in the South Whidbey Record. “Usually the county owns the tidelands at the end of a public road.”

In an interview this week, Mattens said he has little recollection of the broader issue, much less the details of an analysis performed by his office.

Also, he said any determination should be taken with a grain of salt; the assessor’s job is to determine property values, not decide boundary lines.

“Even if I did say it was his, who am I to decide ownership,” Mattens said.

Montgomery says he can’t understand how the county can claim ownership rights when he for years paid property taxes on the same land that’s under dispute.

He claims the dueling position is going on to this day, despite the recent litigation against him.

“The same week they (the county) sued me, they sent me a property tax bill,” Montgomery said.

Jamieson said he’s not sure what property documents Montgomery referred to, so couldn’t address why they were requested. The county’s claim is based on the plat, he said, which is a publicly recorded document.

As for property taxes, Jamieson said it’s an Assessor’s Office matter and could not confirm the claim. He did argue, however, that he didn’t think there is anything unreasonable about Montgomery being charged property taxes because he used the land for years.

“If the court agrees with us, he won’t have to pay the taxes in the future,” Jamieson said.