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Maxwelton Farm sues county, planning chief named

Maxwelton Farm on South Whidbey has filed a land-use petition against Island County, claiming Planning Director David Wechner acted outside his scope of authority.

Wechner sent a cease-and-desist letter dated Aug. 30 to Maxwelton Farms. He ordered them to stop work on water-filled agricultural ditches “as a result of agricultural ditch maintenance without a SEPA environmental checklist,” according to court documents.

The State Environmental Policy Act, or SEPA, requires project managers to complete an environmental checklist, which asks questions about the potential environmental impacts to the air, animals, earth, land use, utilities, wetlands, groundwater and other considerations.

The farm’s owners could not be reached, and attorneys for the farm did not return calls for comment.

Saying Wechner acted with a “lack of authority,” the court documents allege that, while Island County code allows the planning director to issue a cease-and-desist letter for continued violations, it does not authorize the planning director to issue a letter on the grounds of a SEPA violation.

“Furthermore, the Island County planning director does not have the authority to issue a cease-and-desist order directing that some activity occurring on property in Island County cease, unless Island County prohibits that activity or requires that some permit be secured …” the farm representatives argue.

Maxwelton Farm and its predecessors operated a farm at the site for more than 50 years, according to the court documents, and therefore are governed by Island County’s “old” Critical Areas Ordinance.

Under that ordinance, the court documents claim, existing and on-going agricultural work at Maxwelton Farm is exempt if best management practices are maintained.

The farm’s manager was told by a previous Island County critical area planner that ditch maintenance work could be done during the dry part of the summer and that no permit was required. Since that time, Island County has taken a different position on the issue, but the manager claims he has not been able to determine what exactly the change entails, according to court documents.

Wechner said via email that Maxwelton Farm “filed a petition in response to our cease/desist order regarding some excavation within the Maxwelton Creek watershed. We have communicated with the property owner, and are working out a solution to resolve water quality degradation concerns without litigation.”

However, citing the litigation, he declined to comment further.

The land-use petition also claims that three representatives from the Island County planning office went onto the Maxwelton Farm property “without advance notice to or permission” after the Aug. 30 letter was sent, “apparently for purposes related to investigation and/or defense” of the letter.

According to the petition’s “statement of facts,” Maxwelton Farm’s facilities have long included a system of drainage ditches which feed into a main arterial ditch which then empties into Maxwelton Creek.

This system has been separated from the creek with a tidal gate as long as the property has been farmed.

Maxwelton Farm is asking a judge to reverse Wechner’s land-use decision and to refund the $1,802 administrative appeal fee paid by the farm.

 

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