Legal challenge to floating oyster bag farm

Taylor Shellfish is facing another challenge to a floating oyster bag farm in Oakland Bay that was approved by a Mason County hearing examiner last year.

Friends of Oakland Bay filed a land use petition in September, disputing the county's interpretation that Taylor is not subject to certain zoning rules.

The suit, filed in Thurston County Superior Court, says zoning allows only a "hobby farm" that includes "small scale commercial agriculture."

Community Development Director Kell Rowen said in an Administration Determination letter in May the code doesn't apply and "does not preclude Taylor Shellfish from commercially farming in the bay."

Mason County doesn't designate zoning to open water bodies, which are governed by the county's Shoreline Master Program, according to the letter.

"Looking at the SMP together with the County's zoning code, the intent was not to prohibit preferred water-oriented uses on shorelines of the state," the letter states.

The county can't support its position, according to the lawsuit.

"While not stated clearly, the administrative determination concludes that the SMO's preference for water-oriented uses overrides the zoning code's prohibition of the Taylor proposal in Oakland Bay. Yet the determination states this conclusion without ever citing any state or county code or case law to support that conclusion," the petition states.

Friends of Oakland Bay claim both codes apply, the SMP and the zoning code, and the county failed to harmonize the two.

"No effort was made to reconcile the two codes. If that effort had been made, it would have been obvious that the codes are not in conflict," according to the suit.

The SMP allows some uses that the zoning code prohibits. An allowance is not the same as a mandate, the suit states, so banning the oyster bag farm doesn't violate the SMP.

Friends of Oakland Bay are asking the court to vacate Mason County's code interpretation, originally made by Rowan and affirmed by the examiner, and send the matter back to the county.

The county should "modify the code interpretation so that it correctly states that the mere allowance of a use by the SMP does not conflict with a prohibition of that use by the zoning code and that Taylor's proposed use is not allowed by the zoning," according to the suit.

The project will take up 9.1 overwater acres with a 50-acre project boundary for floating aquaculture gear.

The examiner approved the project with certain restrictions, including third-party monitoring for environmental impacts, requirements that the company conduct patrols whenever gear is found missing and respond to complaints within 48 hours or by 5 p.m. the next business day, have oyster bags spaced 30 feet between the center of the double bags and annual reports on noise complaints.

The Shorelines Hearings Board is currently reviewing appeals filed by Taylor Shellfish objecting to the restrictions and Friends of Oakland Bay challenging the farm's approval.

"Friends of Oakland Bay filed a challenge to a decision by Mason County that found Taylor Shellfish's proposed oyster farm in Oakland Bay is not a prohibited use under the County Code. Mason County made the correct decision. Taylor's farm is not only an allowed use, but it is a preferred, water dependent use under the Shoreline Management Act and appropriately recognized as providing important services that benefit the broader community. Taylor Shellfish is confident that the County's decision will be affirmed on appeal," Public Affairs Director Bill Dewey said about the lawsuit.

Mason County Deputy Prosecuting Attorney Tim Higgs told the Journal due to the ongoing nature of the litigation, he couldn't comment at this time.