Land-use fines reach $37,000 against new Island County commissioner, husband
By JESSIE STENSLAND
Whidbey News Times Assistant editor
January 10, 2011 · Updated 9:11 AM
Island County Commissioner Kelly Emerson and her husband were assessed $37,000 by the county planning department this week for alleged violations of the county building code, critical areas ordinances and zoning ordinance.
The alleged violations in the backyard of the Emersons’ Camano Island home were discovered during the heat of last year’s campaign season and became a hot-button issue, erupting into campaign mailers and an unusual lawsuit.
The controversy arose after a neighbor complained that the Emersons were building a closed-in patio without a permit, but then inspectors found there was also a deck and wall built too close to a stream.
Emerson, a Republican, beat former Democratic County Commissioner John Dean in the general election, but the backyard construction matter is far from resolved.
County Code Enforcement Officer Andrew Hicks sent out a supplemental enforcement order to the Emersons this week after receiving no response from either an Oct. 1 notice of violation or a Nov. 1 initial enforcement order. The newest order assesses the Emersons for the initial $5,000 penalty, plus a $500-a-day fee for remaining out of compliance with the critical areas code for 64 days.
But Hicks said the department, at the direction of Planning Director Bob Pederson, may significantly reduce any penalty, or possibly eliminate it, if the Emersons follow the order. The letter to the Emersons reiterates this.
“Our goal is to get compliance,” he said. “It’s never the county’s intent to collect a boat load of money or a large amount of fees from anyone.”
Hicks said he’s exhausted the other remedies and the threat of civil penalty is the only option left to get a resolution. He said the department would have been more than willing to give the Emersons extra time to comply, if they had just communicated.
On the other side, Emerson said she and her husband didn’t ignore the county’s orders, but that the lawsuit was their response. She said she’s “not convinced” that there’s a wetland on her property or that the structures in her yard required permits to be built.
Moreover, Emerson’s attorney, Stephen Pidgeon of Everett, also emphasized that the Emersons responded with the lawsuit against Dean, Pederson and another planning department employee over the enforcement action. He claims the enforcement was directed for political reasons and that the action — including a county employee’s “trespass” onto the Emersons’ property — was a breach of Island County code, the state constitution and the U.S. constitution.
On Aug. 30, then-commissioner Dean received an email at his home from a resident complaining that the Emersons were building an enclosed room on their home without a permit. He forwarded the email to Pederson with the message “FYI.” Several hours later, a county employee went to the Emersons’ home and slapped a stop-work order on the project.
Subsequently, a county building official discovered that the Emersons had also built a deck without a permit and possibly within a buffer of a stream, which is a critical area. According to Hicks, the deck isn’t exempt from permit requirements because it was built on a grade. Also, the Emersons built a wall possibly within a stream buffer.
Hicks said he sent out a notice of violation on Oct. 1 giving the couple 30 days to voluntarily come into compliance with county code. He noted that the Emersons had previously been warned in writing that there was a critical area in their yard and that they would need a permit to build.
After receiving no response, Hicks followed up with an initial enforcement order on Nov. 1. It ordered the Emersons to submit a wetland report, prepared by a qualified professional, to the department within 30 days. The report was supposed to delineate the stream, wetlands and buffers. Also, the Emersons were ordered to submit a building permit for the deck. The letter warns about fines for not complying and explains the appeal process.
Also on Nov. 1, the day before the election, Kenneth and Kelly Emerson filed a lawsuit against Dean, Pederson and a building inspector, alleging civil rights violations, defamation and violations of the state’s Consumer Protection Acts. They asked for unspecified damages.
Part of the lawsuit was aimed at Dean for a campaign mailer he sent out to 20,000 residents that was critical of Emerson for building without a permit. The Emersons claimed it was defamatory and fraudulent.
Also, the lawsuit claimed that the planning department’s enforcement action against the Emersons was politically motivated and the action was contrary to the county’s policies and codes.
But Hicks disagrees.
“This violation has not been handled any different than any other violation,” he said.
Hicks said he normally sends out from three to five supplemental enforcement orders a year and the $37,000 penalty isn’t an unusual amount. He doubts anyone has ever had to pay the full assessment amount.
“We’ve made it clear that we’re willing to work with the landowner to resolve this problem,” he said.Contact Whidbey News Times Assistant editor Jessie Stensland at email@example.com or 360.675.6611 ext. 5056.