Judge rules against former Island County commissioner once again

Island County has once again prevailed in litigation involving Kelly Emerson, a former county commissioner, but the long saga is still not over.

Monday, the Washington state Court of Appeals affirmed a lower court’s summary judgment in favor of the county, throwing out four claims that Emerson and her husband, Kenneth, raised in their second lawsuit against the county. The Emersons’ breach of contract claim is still unresolved, but both sides agreed to arbitration.

“We are still waiting for the Emersons to work with the county’s attorney to choose an arbitrator to settle the breach of contract issue,” Island County Commissioner Helen Price Johnson said Monday. “We’ve been waiting for a better part of a year for them to agree to that. Once that’s done we can wash our hands of this once and for all.”

The issues raised in the Emersons’ two lawsuits against the county and years of wrangling between the planning department were many and complicated, but the central question was whether or not the Emersons had a wetland on their Camano Island property that impacted their ability to build.

Ironically, county staff members finally determined that no wetland existed on the property in 2014, but the litigation continued.

The appeals court’s unpublished opinion recites the facts “in the light most favorable to the Emersons.”

It started back in 2010, when Kenneth Emerson started constructing a sunroom without obtaining a permit. A neighbor anonymously alerted Kelly Emerson’s opponent in the election. A complaint alleging damage to a wetland reached the county planning department, and an inspector slapped a stop-work order on the framing. Kenneth Emerson applied for a building permit.

The county had information indicating the presence of a wetland on the property and sent a violation letter to the Emersons, asking them to submit a wetland report. Failure to do so would result in an enforcement order and fines.

The Emersons did not submit a wetland report.

“Feeling certain there were no wetlands on the property, they filed a lawsuit against individuals they believed were engaging in a misuse of power to discredit Kelly Emerson’s political campaign,” the opinion states. “Later, they added the county as a defendant.”

The lawsuit was filed the day before Emerson, a Republican, won the election. She later quit before the end of her term.

In May of 2011, Island County Superior Court Judge Alan Hancock dismissed the lawsuit. The Emersons were assessed a civil penalty of $37,000 by the county.

The Emersons submitted a wetland report, but the county and the state Department of Ecology found it did not comply with federal and state standards. The county and Department of Ecology also found a peer review submitted by the Emersons to be unpersuasive.

The Department of Ecology and the county repeatedly offered to perform an onsite inspection of the property at no cost, but the Emersons refused because they felt neither entity could make an unbiased decision.

In June of 2013, the county and the Emersons reached a settlement. The Emersons agreed to pay a $5,000 fine, withdraw an administrative appeal and submit a wetland report that strictly complied with the state’s wetland manual. The county agreed to process the permit application in good faith after receiving the wetland report.

The Emersons submitted a new wetland report on Sept. 16, 2013. The county asked a few questions and then renewed the request to inspect the property. The Emersons rejected the request and declared a breach of the settlement agreement.

The Emersons filed their second lawsuit against the county in November of 2013. The county sent the wetland report to the Department of Ecology, which found that it did not comply with the wetland manual.

The lawsuit, however, allowed the county to access the property under the discovery rule. No wetlands were found and the county issued a building permit to the Emersons.

The Emersons’ lawsuit alleged breach of contract, unlawful “takings,” due process violations, common law fraud and damages from governmental action. The couple and the county agreed to arbitration in the breach of contract claim. A trial court dismissed all the other claims on summary judgment. The Emersons asked for reconsideration, but the motion was denied.

The Emersons then appealed to the Court of Appeals.

Kelly Emerson did not return a call for comment.