The Bainbridge Island City Council tonight will formally decide that an 1,800-square-foot home cannot be built behind a bulkhead on the Point Monroe Sandspit – a decision that took the council three years to make, and that the attorney for the losing party says will be appealed.

No one is completely happy with the process, even those who agree with the decision the council is expected to make.

“If we went to the Shoreline Hearings Board or the Department of Ecology right away, we would be dealing with people with scientific and technical training who look at these kinds of issues every day, which would eliminate a lot of the learning curve,” said Gayle Robbins, a Sandspit resident who, with her husband Paul, will prevail as appellants with the council’s findings.

At issue was whether Shannon Stafford could build an 1,800-square-foot home on land – some of it fill – behind a bulkhead he built in 1991, after a 1990 storm had eroded a portion of the Point Monroe beach.

The city approved the plan, and that decision was upheld by a hearing examiner in March 2000.

The Robbins family and other neighbors appealed to the council – the route prescribed by Bainbridge ordinance – claiming that the bulkhead was waterward of the ordinary high-water mark, and thus illegal.

After reviewing transcripts of the hearing, documentary evidence and holding three hearings of its own – a process that took three years all told – the council ruled for the neighbors.

It said that while the ordinary high-water mark may be altered by a permitted bulkhead, Stafford did not receive a permit, and that the hearing examiner erred in deciding that ordinary high water began at the toe of the bulkhead.

Dennis Reynolds, attorney for Stafford, said the council has unwittingly made a flawed legal decision.

“Stafford had a shoreline exemption, not a permit, and the council said that wasn’t enough,” Reynolds said. “But the statute defines ‘permit’ as including an exemption, which is something I wasn’t able to tell the council under the way they had structured the hearing.”

Some of the council members themselves were uncomfortable with the role into which they were thrust.

“These are legal decisions, and we are not legally trained,” said council chair Christine Nasser Rolfes. “It must have been frustrating to the lawyers for both parties, and it was frustrating to us because we weren’t allowed to talk to each other.”

After reviewing the evidence, posing questions to the lawyers, hearing arguments and reading legal briefs, the council met in public session to reach their conclusion.

“Council member Wooldridge had written down his points, we went over them point by point and reached our decision,” Rolfes said.

No testimony was taken at that meeting – the one at which Reynolds said he was unable to comment on the very question of whether an exemption constitutes a permit.

Some council members now want to take the council out of the appeals process altogether.

City attorney Rod Kaseguma has been asked to draft an ordinance removing the council from the equation, with appeals from a hearing examiner’s decision going directly to Superior Court, or in the Stafford case, to the state Shoreline Hearings Board.

Everyone involved in the Stafford case believes that would save time for future appellants.

“This has consumed our lives for five years, and has cost a lot of money,” Stafford said. “Part of the problem, and the reason this took so long, was finding dates when everyone can be available.”

The most frustrating part, Reynolds said, is that the Shoreline Hearing Board conducts its reviews from scratch – de novo, in legal terminology – meaning that the efforts before the hearing examiner and city council will become meaningless.

“We will start over again before the board,” Reynolds said. “But we should be able to get a decision within weeks, not years.”