Former commissioner Emerson’s lawsuit moves to trial

A portion of a lawsuit brought against Island County by a former commissioner and her husband is moving toward a jury trial.

Last month, a judge in King County Superior Court threw out four of five claims that Kelly Emerson, the former commissioner, and her husband, Kenneth Emerson, raised in their lawsuit.

Judge Kimberly Prochnau ruled that a breach of contract claim is the single issue that can move forward to a trial scheduled for one month from now.

This is the second lawsuit that the Emersons have filed against the county in connection with a construction project in the backyard of their Camano Island home. The Emersons started work on a sun room project without first obtaining the necessary permits.

That issue led to a dispute between the Emersons and the county planning department about whether or not there’s a wetland on the property, which could preclude construction.

That issue has finally been settled. The Emersons’ attorney, Justin Park of Bellevue, said the county’s wetland expert studied the property and determined that a wetland was not present.

The first lawsuit was filed on Nov. 1, 2010, the day before Kelly Emerson was elected. It named a former commissioner, a planning director and a building inspector as defendants and claimed defamation, trespass, violation of the Consumer Protection Act and violations of due process and property rights; the county was later added as a defendant.

Island County Superior Court Judge Alan Hancock granted the county’s motion for summary judgment, dismissing the lawsuit.

The Emersons faced fines of more than $100,000 under a supplemental enforcement order for violations of county building codes and critical areas ordinances. They didn’t respond to the order, which included a $500-a-day fine.

Since the wetland issue was still not resolved, the Emersons submitted two different reports by experts who concluded that no wetland was present on the property.

The planning department, with consultation by the Department of Ecology, refuted both reports, asserting that the experts didn’t use the proper methodology.

The couple appealed after the planning department issued a second enforcement order and the planning director denied the Emersons’ building permit in 2013.

In June 2013, the Emersons and the county entered into an agreement under which the couple agreed to pay $5,000 in fines and obtain a third wetland report. The planning department agreed to begin processing the couple’s application for the building permit.

The Emersons paid the fine and submitted a wetlands report in August 2013.

But once again, the planning department, in concurrence with the Department of Ecology, determined that, “the methodology of the wetland report was not in compliance with federal and state standards,” according to the county’s motion for summary judgment.

The planning department repeatedly told the Emersons that the issue could be easily resolved without cost to them by allowing a county or Department of Ecology wetland specialist to inspect the site, Mark Johnsen, an attorney representing the county, wrote in the motion.

The Emersons refused the repeated requests, saying that the county had no right to enter the property, but their lawsuit finally paved the way for the county to have access. The court allowed a county wetland specialist to visit the site under the rules of discovery, according to court documents.

The county’s wetland specialist visited the site in October 2014, took samples and concluded that there was no wetland on the property. The county issued the building permit but the Emersons refused to pick it up, Johnsen wrote.

The Emersons’ lawsuit claims that the county breached the agreement by not processing the building permit in a timely manner. The couple filed the lawsuit Nov. 5, 2013.

Besides breach of contract, the Emersons accused the county of “takings,” fraud, a violation of a state law regarding unlawful actions taken by a government agency and a civil rights violation.

Johnsen said the judge dismissed all the claims except the breach of contract argument. He said the county will fight the claim.