Supportive wetland report fires up Emerson
By JESSIE STENSLAND
Whidbey News Times Assistant editor
August 1, 2011 · Updated 8:18 AM
Island County Commissioner Kelly Emerson used a new wetland report as an opportunity to write scathing letters to her fellow commissioners and her former political opponent over their roles in the events surrounding her unsuccessful lawsuit against the county.
In addition, Emerson and her husband finally responded to the county planning department’s enforcement order and supplemental enforcement order, which were sent out in October of 2010 and January of 2011, respectively, and required the couple to submit a wetland report within 30 days.
The Emersons hired Steven Neugebauer, a biologist and hydrogeologist, to prepare the 130-page report. Neugebauer concludes, in no uncertain terms, that “no wetlands or critical areas streams are present on or in the immediate vicinity of the subject property.”
Emerson, a Republican, said the report once and for all settles the question of whether she violated the county’s critical areas ordinance, which became an issue in her election campaign last fall. She said there was no violation since there was no critical area.
She quickly wrote a letter to former Commissioner John Dean, her Democratic opponent, that accused him of lying when he claimed she violated critical areas.
“It was a false assertion that compromised the efforts of many people, the health and marriage of others, and promoted the bitter division of a neighborhood community,” she wrote.
On the other hand, Emerson may have technically violated the critical areas ordinance by not submitting a wetland report within the time limit.
Emerson also claims that county planning staff broke county code by determining that there was a stream on her property and by requiring her and her husband to submit a wetland report, which cost $12,000. She said the county doesn’t have anyone qualified to make that decision and had no legitimate reason to require a report.
“Even if it only cost $3,000, is it fair to force a homeowner to spend that kind of money on a permit to do a project that doesn’t even extend the footprint of their home?” she asked.
Moreover, Neugebauer was also critical of county staff for relying on a hand-drawn map written by someone who wasn’t a licensed geologist or hydrogeologist in making the wetland determination. The map in question went along with a permit that the Emersons obtained in 2008 for a garage; the map shows a stream on the property. There’s an accompanying document that states there’s a critical area present that requires the Emersons to get permission from the planning department for any further projects.
Yet it appears the planning department is being criticized for making a determination that hasn’t been made yet.
Andrew Hicks, the former code enforcement officer and current long-range planner, explained that the wetland determination hasn’t been done on Emerson’s property. Planning staff concluded there was a likelihood of a critical area — a stream — on the property, which is why the wetland report was required. The determination will be made by the planning director, per county code, based on the wetland report.
“Mr. Emerson was informed about this on site,” Hicks said. “Justin (Craven) explained to him that the wetland report may very well conclude that there’s no critical areas.”
Craven is the county’s critical area planner. Hicks also denied that the staff relied on a hand-drawn map, but said Craven went to the site to decide if a wetland report was needed. It’s a decision that would have been made with or without the map.
Hicks said now that the report is complete, the planning department staff will analyze it to ensure it’s valid. If they have any issues with the document, a third party, like the Department of Ecology, may be asked to weigh in on its accuracy, according to Hicks.
Normally, anyone applying for a building permit has to fill out a field indicator worksheet which would alert the county to any potential critical areas near a building project. But in the Emersons’ case, they started building a sunroom onto their house last fall without first getting the necessary permit or doing the worksheet. The county staff was already aware of a potential critical area on the property because of the earlier garage permit, so staff members went to the site and found what appeared to be a stream, but they weren’t sure if it was large enough to be regulated. Thus, the wetland report was required.
Emerson, however, disputes that this process follows the county code and claims the whole thing was politically motivated. She said only a licensed hydrogeologist, which the county doesn’t have, can determine if a wetland is present. Some of the documents she received from county planning staff said there “is” a critical area present, while others say it’s “likely.”
“It’s a form of white-collar welfare. They forced us to go out and hire a scientist to defend our position,” she said. “The county has to show justification for that kind of burden, but they did not.”
Planning Director Bob Pederson denied that the planning department’s actions were politically motivated. He said the staff members were simply following the same policy they always follow.
Kelly and Kenneth Emerson filed their lawsuit Nov. 1, 2010, the day before Kelly Emerson won the election. It revolved around a home-expansion project that Kenneth was building at their Camano Island home without a permit, as well as a Dean campaign mailer that criticized Kelly for ignoring county laws. The lawsuit claimed the county unlawfully slapped a stop-work order on the project and that Dean defamed his political rival. A judge, however, dismissed the entire lawsuit as being without merit.
In addition to the wetland report, Emerson sent letters to Democratic Commissioners Helen Price Johnson and Angie Homola, criticizing them for allowing political agendas to override individual rights. She claimed that they were wrong, and may have broken the law, in choosing to have the county pay for the defense of the individuals she sued. In the original lawsuit, Pederson, Dean and a county building inspector were named as defendants, but the county was added later.
Price Johnson flatly denied she acted with political motivation and said the county obviously had to defend county officials who were being sued for doing their job; Dean, however, was sued over a campaign mailer. She said it’s just good public policy and she expects Emerson would want to be defended if she was sued in her role as a commissioner.
Mark Johnsen, the attorney for the county, agreed that the county obviously had an obligation to provide legal representation. He works through the Washington Counties Risk Pool.
“It’s absolutely standard,” he said. “I represent counties all over the state.”
Still to be resolved is the $37,000 in fines that the Emersons were assessed by the planning department for violations of the building code, planning code and critical areas code. Hicks said the amount of the assessment may be negotiated.
Price Johnson said she’ll be happy when the lawsuit and the other related issues are finally over.
“I think it’s extraordinarily for a leader of an organization to also be its adversary,” she said. “It made for an extremely strange situation.”
Contact Whidbey News Times Assistant editor Jessie Stensland at firstname.lastname@example.org or 360.675.6611 ext. 5056.