Dear Lake Cavanaugh Neighbors,
In the summer of 2019, I learned of Forest Practices Application (FPA) 2817112 from Cathy Katte who was then the President of the Lake Cavanaugh Trust. FPA 2817112 was approved on August 29, 2019, by the Washington State Department of Natural Resources (DNR). This approval allowed the timber harvest on a portion of approximately 270 acres of forest lands on Frailey Mountain abutting the Plat of Lake Cavanaugh Subdivision No. 3. Access to the timber harvest areas on Frailey Mountain was shown on the FPA through a residential lot owned by Richmond JPJ (JPJ) located within the Plat (“JPJ Property”). The address of that lot is 33242 South Shore Drive. The title of the property clearly shows there is a Plat Covenant which states: No lots shall be used for commercial business or manufacturing purposes. This Plat Covenant is present on almost all lots around Lake Cavanaugh. Regardless, in August of 2019, Nielsen Brothers Inc. (Nielsen), a logging company, applied for, and later obtained, a permit from Skagit County to construct a commercial access point to South Shore Drive from the JPJ Property.
The commercial use restriction on the Plat is one of the reasons we moved to Lake Cavanaugh. We appreciate the relative peace and quiet that a purely residential community can provide and this planned use of a residential lot for commercial purposes would violate the Plat Covenant and would erode our property rights. When I learned of this prohibited use of a residential lot, I reached out to DNR to inform them of the commercial use restriction on the lot and their response was that it was not of their concern. I then reached out to Skagit County, and they refused to pull back the permit they issued even though it was clear to me that the commercial road violated the zoning as well as the restriction. Having nowhere else to turn, I filed a Complaint with the Skagit County Superior Court in October 2019 as a property owner of a lot in the Plat of Lake Cavanaugh Subdivision No. 3 to prohibit the use of the JPJ Property for commercial logging purposes because it violated a covenant that prohibits lots being used for commercial businesses. Nielsen and JPJ raised a number of affirmative defenses including that the Plat Covenant has been abandoned and counterclaimed to condemn a private way of necessity.
In April 2020, we moved to have the court, The Honorable Laura M. Riquelme, rule as a matter of law that Nielsen’s use of the JPJ Property violated the Plat Covenant. Riquelme denied the Motion. We then moved for reconsideration or, in the alternative, a preliminary injunction. Riquelme denied both motions. Nielsen started constructing the commercial road through the JPJ Property shortly thereafter. In October 2020, we moved to dismiss Nielsen/ JPJs counterclaim to condemn a private way of necessity for failure to join necessary parties. The Skagit County Superior Court granted that motion.
A trial was initially scheduled for June 2021, but was rescheduled to November 2021 due to a competing criminal trial. After a two-day bench trial, the court ruled that Nielsen’s logging activity did not violate the Plat Covenant in a decision dated January 31, 2022. We appealed to Court of Appeals Division One. Briefing was completed on October 10, 2022, and the court heard argument of counsel on January 25, 2023. On February 13, 2023, the Court of Appeals Division One issued a decision reversing the previous ruling by Riquelme. The Court of Appeals determined the Nielsen/JPJ’s use of the JPJ Property did violate the Plat Covenant. JPJ/ Nielsen petitioned the Washington Supreme Court for further review. The Washington Supreme Court declined review in an order dated September 7, 2023. The Court of Appeals Division One issued a mandate to Skagit County Superior Court on September 29, 2023. An agreed order was filed with the Skagit County Superior Court on January 31, 2024, and Riquelme signed the agreed order February 8, 2024, which states, in part:
“It is ORDERED that Defendants, Defendant’s officers, agents, employees and any other persons acting directly or indirectly with any of them, are permanently restrained and enjoined from using the JPJ Property for commercial business purposes, which specifically includes, but is not limited to, commercial logging.”
Per the Order, there can be no commercial activity on the property at 33242 South Shore Drive. It is important to watch for this to protect our property rights. If any commercial activity is noticed, please document, and send a notification to: rpm32927@ gmail.com.
To be clear, the complaint and all the legal proceedings were my efforts and not those of the Lake Cavanaugh Trust. As you can imagine, there is satisfaction in having preserved our property rights regardless of the time and expense, but I do not believe this will be the end of it. For the sake of our community, please get involved in the Lake Cavanaugh Trust or the LCIA to help preserve our beautiful and special piece of Skagit County.
The Lake Cavanaugh Trust was formed November 17, 1994, with the purpose of “The Preservation and management of the natural environment in the Lake Cavanaugh watershed and surrounding lands”. The Lake Cavanaugh Trust is actively seeking interested community members to join and to also serve in various capacities on the Board. Please contact Alexander McCullough, the current president, if you are interested and/or want more information: mccullough1645@gmail.com
Special thanks to those of you that supported my efforts, we could not have prevailed without your generous support.