Dearborn returns to comp plan work

Ignoring opposition from Island County Prosecuting Attorney Greg Banks and environmentalists, the Board of Island County Commissioners voted to approve a contract for land-use attorney Keith Dearborn.

The $351,000 contract finalized Monday will employ Dearborn while the county reviews and updates its critical areas ordinance, which is part of the Island County Comprehensive Plan.

The ordinance governs development near sensitive areas such a streams, wetlands, bluffs and wildlife habitat.

“Most people in Island County are impacted by or impact a critical area,” Island County Planning Director Phil Bakke said. “You might live on a steep slope, or have a drainage ditch. Most people will have some interest in the critical areas update.”

The commissioners also signed a waiver exempting the contract from needing to be put out for competitive bid.

“We’re interested in having a land-use attorney that can defend the county in the best possible way,” Island County Commissioner Mike Shelton said. “The specialty that he has is land use, and I don’t believe that our (prosecutor’s) office has that specialty.”

But Banks, in a statement read during the meeting, said his office should be leading the process.

“I have tooled my office to meet the needs of the GMA review and critical areas update,” Banks said.

Banks said he has assigned a deputy prosecutor to give the planning department priority in handling land-use issues. The attorney had gone so far as to take night classes at the University of Washington to obtain a certificate in Washington land-use law.

“So that he may better represent the county — not because he will be making $351,000, but out of a sense of duty and loyalty to the county,” Banks said.

Shelton said the county went to an outside firm because the prosecutor’s office had made itself unavailable during previous plan updates. The comment that drew a laugh of apparent disbelief from Banks.

“One of the things Greg (Banks) has not been able to do in the past is dedicate an attorney to work with the development of the plan,” Shelton said after the meeting.

The prosecutor’s office has taken the stance of letting the county develop the plan and it will defend it, Shelton said.

“That’s actually not true,” Banks said after the meeting. “When I took office in ‘99, there was never an invite for us to be involved in the process.”

Funding for the Dearborn contract comes from approximately $1.1 million the planning department has amassed from an increase in permit fees.

Whidbey Environmental Action Network, which has fought with the county since the comprehensive planning process began, also opposes bringing in an outside law firm to represent the county in the critical areas update.

“Dearborn’s made his career helping jurisdictions evade GMA’s (restrictions) as much as they can,” WEAN spokesman Steve Erickson said. “This is a declaration by the commissioners that they intend to weaken the codes, because that’s what Dearborn specializes in.”

A history of conflict

Dearborn first became involved with Island County in 1984, Erickson said. Island County had temporary zoning laws in effect for more than 15 years, which was the longest of any county in the country, he said.

In the late 1990s, Dearborn came on board to guide the county through the adoption of its comprehensive plan. The commissioners were under pressure to meet deadlines set by the state Growth Management Act.

Through March of 2000, the county had spent $1.1 million on developing the comprehensive plan. More than $722,000 went to Dearborn’s practice. The initial contract with Dearborn ended in 2000, when Island County Superior Court Judges Alan Hancock and Vickie Churchill refused to approve any more funding.

State law prohibits the county from employing outside attorneys unless the presiding Superior Court judge agrees. According to a 2000 Whidbey News-Times article, the judges called the money spent on Dearborn “astonishing.”

The judges refused to authorize any further extension of Dearborn’s legal services. The county commissioners, however, still had the authority to hire Dearborn as a land use consultant. The commissioners approved Dearborn’s consultant contract on Feb. 28, 2000. This created an additional $125,000 in expenses.

Erickson said that by bringing Dearborn back into the mix, the county is sending a clear message of its intent for the review process.

“The county is setting itself up for more wars over the protection of critical areas,” he said. “These guys specialize in trying to break down local citizen groups. They don’t specialize in solutions that meet the letter and spirit of the law.”

Even though Dearborn has not yet begun serving the county, a conflict of interest issue has been raised. A letter Erickson sent to Hancock and Churchill notes that Dearborn’s wife and law partner, Allison Moss, is representing Nichols Brothers Boat Builders, Inc. in that company’s bid to secure a master permit that will allow it to expand its Freeland boat yard.

“Critical area issues are of prime importance in determining the fate of this project,” the letter states. “It is not proper for her to simultaneously advocate for this project and hold a key position in the review of critical area regulations.”

Dearborn, however, asserted that the work Moss is performing is separate from the critical areas review. In a signed waiver of any conflict, Dearborn wrote that all of Nichols’ contracts are complete and any revision to the ordinance would occur separate of those proceedings.

Judges allow new contract

This time around, Hancock and Churchill still had some lingering questions about the need for the services of an outside law firm.

“We had a number of questions,” Hancock said Tuesday. “We had taken a position (in 2000) that it wasn’t appropriate to have any additional contracts at that point. And we were reluctant to approve any additional contract at this time.”

Approval for this contract came after the judges voiced concern over several issues in an earlier draft.

“Our major concern was to make sure that there were cost-containment clauses,” Churchill said.

Under the contract, the total amount paid out will not exceed $351,550. If the firm finishes early or under budget, it will not receive the rest of the money. If the costs run above $351,550, Dearborn will absorb those costs.

One of the other concerns Hancock and Churchill expressed was the county’s ability to monitor Dearborn’s billings.

Under the new contract, all bills will be sent with an itemized description to Phil Bakke, who will review them personally.

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