Years of waiting ended last week when Bob Pederson, in one of his final acts as Island County’s planning chief, ordered Commissioner Kelly Emerson to pay $37,000 in fines or face action.
In a second supplemental enforcement order signed March 28, Pederson gave the commissioner, his former boss, and her husband, Ken Emerson, a tight deadline of 14 days to pay the fines.
“If you fail to pay this fine and civil penalty, Island County will initiate the process to file a lien against the subject property,” the enforcement order said.
It added that the planning department “may institute any appropriate action to collect the civil penalty,” including prosecution under provisions of county code.
Simultaneously, Pederson denied the Emersons’ application for a building permit. The decision was based on grounds that not enough information was submitted to complete the application.
Pederson resigned last month to pursue other interests and his last day on the job was March 29.
Emerson said this week that she was “thankful” action had finally been taken, maintaining as she has for some time that the next steps and resolution were in Pederson’s hands.
“We’ve been waiting for over two years now,” Emerson said.
In 2010 during a charged campaign battle with her predecessor, planning department officials learned the Emersons were building a patio without a permit at their Camano Island home.
Department officers issued a stop-work order. In a visit to the property, officials said they found evidence of a wetland, which makes acquiring a building permit more onerous as it adds critical areas requirements.
Over the past two years, the hot-button issue was fought in court. The Emersons sued the county, Pederson and former commissioner John Dean, who she defeated in the election. In addition, wetland studies were performed and contested by local, state and private experts, and the issue remains a heated debate by the public.
Now that a decision has been made, however, the next steps are relatively straight forward, according to Justin Kasting, a special deputy prosecutor with Snohomish County.
Specializing in land-use law, Kasting agreed to a request from Island County Prosecutor Greg Banks earlier this year to take over as legal counsel for the planning department and the county for the Emerson case.
“It’s a pretty clear conflict of interest for me,” said Banks in a recent interview.
The service is being done for free as a courtesy between departments.
Concerning the fines, the Emersons have three choices. They can pay the bill, ending the issue outright; they can appeal the order to the county’s hearing examiner; or they can simply not respond.
If the order is ignored, one additional step would be required to ratify Pederson’s decision: the board of commissioners would have to vote to file it with the auditor’s office, Kasting confirmed.
When asked what her plans were, Emerson said no decision was made but indicated that it’s unlikely she and her husband will cave and end the issue without further argument by paying the $37,000.
“We have no wetland and we have damaged nothing so why should we be fined?” Emerson said.
Furthermore, she strongly implied that they will not let the 14-day deadline pass without contesting the order.
“We didn’t wait two years to do nothing,” she said.
Should the Emersons appeal and the hearing examiner were to side with the county, then the issue may eventually end up back with the board, which would open another can of worms to an already highly irregular situation.
“That’s where the question gets interesting because Commissioner Emerson is a member of the board,” Kasting said.
He declined to weigh in on whether Emerson should recuse herself from the decision making process, and it’s unclear if state law, known as the appearance of fairness doctrine, would prohibit her from legally participating, despite her financial interest in the matter.
Even if she recused herself, she may still have an opportunity to vote on the issue. If the remaining board members voted a split decision, RCW 42.36.090 may indicate that she would have a legal right to come back and break the tie, even is she were to disclose a conflict of interest.
Emerson said she didn’t “expect it would be considered appropriate” to be part of the decision-making process but declined to confirm her plans until she had conferred with her attorney.
“I’m going to wait and talk with our legal counsel before making any decisions,” she said.
Emerson’s fellow commissioners took soft positions on the issue as well. Neither said they would actively call for her to step away but both suggested that it might be the right course to take.
“If it comes to that point, I think everyone would expect that,” Commissioner Jill Johnson said.
“The ethics of our elected office is to recuse ourselves when appropriate,” Commissioner Helen Price Johnson said.
The same potential conflict could arise should the Emersons decide to appeal their denied building permit. Unlike the enforcement order, an appeal would not be heard by the hearing examiner but by the board.
Neither commissioner would confirm how they would vote on the issues, saying it’s too early in the process and that it would be premature and speculative to announce a predetermined judgement.
Jill Johnson made it clear that she will not give any deferential treatment to her Republican colleague, that she “would do for the Emersons like I would do for any other couple.”
She added that her interest is not in how this ends, only that it is resolved soon.
“I don’t care what the outcome is, I just want this resolved,” Johnson said. “It’s a cloud hanging over the county and has been for two and a half years.”
She said it was “mind-boggling” how long the issue was allowed to “fester” and questioned the delay. Johnson said she’s personally worked to end the issue since taking office, speaking with various county officials, including Pederson, and pushed for progress.
Price Johnson expressed similar sentiments, saying that progress on the Emersons’ case was a long time in coming and that she is anxious to see the issue settled, once and for all.
As for the delay, Price Johnson said she has purposely kept her distance from the issue because she’s wanted to give the Emersons “the opportunity to address this as private citizens.”
She added that blame for a lack of progress can’t be laid solely at the planning department’s feet. The Emersons could have decided to settle this issue long ago, she said.
Now that Pederson has resigned, some of the responsibility of shepherding over the next steps fall to Keith Higman, who was recently appointed interim director of the planning department.
Higman said he expects the Emersons to appeal the enforcement order, which may take the issue out of his hands. If it comes back to the commissioners while he’s in charge, Higman said he was unsure exactly how he would proceed, though he made it clear that he would not make any big decisions without board support as he is a temporary leader.
“The clock is ticking and we are anxiously awaiting to see how the Emerson’s respond,” he said.