Island County seeks halt to suit by commissioner
By JESSIE STENSLAND
Whidbey News Times Assistant editor
April 20, 2011 · Updated 8:42 AM
The lawsuit that Island County Commissioner Kelly Emerson and her husband filed against the county, two county employees and former Commissioner John Dean may come to an end next month.
At the same time, the Emersons’ lawyer leveled a new allegation that the county is polluting the Emersons’ property.
The attorney representing the county filed a motion for summary judgment last Friday, asking Island County Superior Court Judge Alan Hancock to dismiss the lawsuit, including the Emersons’ request for a restraining order barring the county from fining the couple or collecting fines for violations of county code. The county to date has assessed the Emersons $38,000 for alleged violations.
“They ask the court to enjoin Island County from enforcing zoning and land use regulations against them. They seem to believe that they are now exempt from complying with building and land use codes that apply to all citizens of Island County. The argument is groundless,” the county’s attorney, Mark Johnsen, wrote about the Emersons in the motion for summary judgement.
The hearing date is set for May 18. But Stephen Pidgeon, an Everett attorney representing the Emersons, said he will ask for an extension to give his hydrogeology expert time to complete a report.
Moreover, Pidgeon is adamant that the motion for summary judgment won’t succeed.
“This is not going away,” he said. “This is going to go to trial. ... We’re not here to smack the taxpayers. We’re here to clear up a mess in the county that’s unconscionable.”
Pidgeon said he hired one of the top hydrogeologists in the state to look into the issue of whether there’s a wetland on the Emersons’ property. Pidgeon claims that the hydrogeologists not only found there’s no significant wetland on the property, but that the county is polluting the Emersons’ land with “stormwater and other pollutants.”
Kelly Emerson and her husband, Kenneth, filed the lawsuit on Nov. 1, 2010, against former Commissioner John Dean, Planning Director Bob Pederson and building inspector Ron Slechta, alleging defamation, trespass, violation of the Consumer Protection Act, and violations of due process and property rights. They asked for unspecified damages.
The litigation surrounds a sunroom Kenneth Emerson started building onto the couple’s Camano Island house last year without a permit.
In a deposition, he admitted that he knowingly started working on the project before getting the permit he knew was necessary. He also admitted he was willing to take the risk of being charged an extra fee if caught building without a permit, the deposition indicates.
During last year’s heated campaign, former Commissioner John Dean, who was running against Emerson, received an email complaint about the Emersons building a sunporch without a permit. He forwarded the email to Planning Director Bob Pederson with the message “FYI.” Several hours later, Slechta slapped a stop-work order on the project.
In his deposition, Slechta said a permit manager told him to inspect the home. He said he had no idea who owned the property.
Subsequently, a county building official discovered that the Emersons had also built a deck, patio, greenhouse and a retaining wall, all without permits and possibly within a wetland buffer. County documents show that the Emerson were previously warned in writing that there was a critical area in their yard and that they would need a permit to build anything.
Before the election, Dean sent out thousands of mailers that criticized Emerson for building without a permit.
Emerson, a Republican, beat former Democratic Commissioner John Dean in the general election. But on the day before the election, the Emersons filed the lawsuit that claimed the defendants took actions against them for political purposes, that Dean’s mailer constituted defamation and that Slechta trespassed on their property in violation of county laws, as well as the state and U.S. constitutions.
In the motion for summary judgment, Johnsen argues that there’s no basis for any of the Emersons’ claims.
On the issue of trespassing, he wrote that “it is not a violation of the constitution for an official to approach an owner’s home in daylight for investigative purposes,” referencing several federal court cases.
In addition, he wrote that both the county and the state have adopted the International Residential Code, which “expressly authorizes local building inspectors to enter upon property for the purposed of inspection when evidence exists that a civil violation may be occurring.” He wrote that the Washington Planning Enabling Act also provides that planning staff may enter onto a property and make an examination.
Pidgeon, however, insists it’s unconstitutional for an official to go onto someone’s property without a warrant.
“Don’t let a little thing like the constitution get in your way,” he said sarcastically.Contact Whidbey News Times Assistant editor Jessie Stensland at email@example.com or 360.675.6611 ext. 5056.