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Island County commissioner fined by exiting planning chief

In one of his final acts as Island County’s planning chief, Bob Pederson ordered Commissioner Kelly Emerson to pay $37,000 in fines or face action.

In a second supplemental enforcement order signed March 28, Pederson gave the commissioner, his former boss, and her husband, Ken Emerson, a tight deadline of 14 days to pay the fines.

“If you fail to pay this fine and civil penalty, Island County will initiate the process to file a lien against the subject property,” the enforcement order said.

The order added that the Island County Planning Department “may institute any appropriate action to collect the civil penalty,” including prosecution under provisions of county code.

Pederson simultaneously denied the Emersons’ application for a building permit.

The decision, according to the order, was based on grounds that not enough information was submitted to complete the application.

Pederson submitted his resignation last month stating he wants to pursue other interests.

His last day on the job was March 29.

Emerson said this week that she was “thankful” action was finally been taken, maintaining as she has for some time that the next steps, and resolution, were in Pederson’s hands.

“We’ve been waiting for over two years now,” Emerson said.

It was during a highly-charged 2010 campaign battle with her predecessor that planning department officials learned the Emersons were building a patio without first obtaining a permit.

The Emersons live on Camano Island.

Planning department officers issued a stop-work order in a visit to the property. There, officials said they found evidence of a wetland, which makes acquiring a building permit more onerous because it adds critical areas requirements.

Over the past two years, the hot-button issue was fought in court – the Emersons sued Island County, Pederson and Dean – wetland studies were performed and contested by local, state and private experts, and the issue was a source of heated public debate.

With a decision made, however, the next steps are relatively straight forward, according to Justin Kasting, a special deputy prosecutor with Snohomish County.

Specializing in land-use law, Kasting agreed to a request from Island County Prosecutor Greg Banks earlier this year to take over as legal counsel for the planning department and the county in the Emerson case.

“It’s a pretty clear conflict of interest for me,” Banks said during a recent interview.

The service is being done for free as a courtesy between departments.

Concerning the fines, the Emersons have three choices.

They can pay the bill, ending the issue outright; they can appeal the order to the county’s hearing examiner; or they can simply not respond.

If the order is ignored, one additional step is required to ratify Pederson’s decision — the board of commissioners must vote to file it with the auditor’s office, Kasting confirmed.

When asked what her plans are, Emerson said no decisions is made, but indicated it’s unlikely she and her husband will cave in and end the issue by paying the $37,000.

“We have no wetland and we have damaged nothing so why should we be fined?” Emerson asked.

She indicated she and her husband won’t let the 14-day deadline pass without contesting the order.

“We didn’t wait two years to do nothing,” she said.

Should the Emersons appeal, and the hearing examiner to side with the county, then the issue may eventually end up back before the board of commissioners.

“That’s where the question gets interesting, because Commissioner Emerson is a member of the board,” Kasting said.

He declined to say whether or not Emerson should recuse herself from the decision-making process, and it’s unclear if the state’s appearance of fairness doctrine, would prohibit her from legally participating, despite her financial interest in the matter.

Even if she recuses herself, she may still have an opportunity to vote on the issue.

If the two other board members vote a split decision, state law indicates that Emerson would have a legal right to break the tie, even is she were to disclose a conflict of interest.

Emerson said she didn’t “expect it would be considered appropriate” to be part of the decision-making process but declined to confirm her plans until she had conferred with her attorney.

“I’m going to wait and talk with our legal counsel before making any decisions,” she said.

Neither of Emerson’s fellow commissioners said they would actively call for her to step away from the issue, but both suggested it might be the right course to take.

“If it comes to that point, I think everyone would expect that,” Commissioner Jill Johnson said.

“The ethics of our elected office is to recuse ourselves when appropriate,” Commissioner Helen Price Johnson said.

The same potential conflict could arise should the Emersons decide to appeal the denied building permit. Unlike the enforcement order, an appeal would not be heard by the hearing examiner but by the board of commissioners.

Neither commissioner will say how they would vote, saying it would be premature and speculative to announce a predetermined judgment.

Johnson was clear, however, that she will not be giving preferential treatment to her Republican colleague

Johnson said she “would do for the Emersons like I would do for any other couple.”

“I don’t care what the outcome is, I just want this resolved,” Johnson said. “It’s a cloud hanging over the county and has been for two and a half years.”

Johnson said it was “mind-boggling” how long the issue was allowed to “fester” and questioned the delay.

Johnson said she’s personally worked to end the issue since taking office, speaking with various county officials, including Pederson, and pushed for progress to be made.

Price Johnson voiced similar sentiments

“I would hope the Emersons would take the proper action to resolve this as soon as possible,” Price Johnson said.

Price Johnson said she purposely kept her distance from the issue because she’s wants to give the Emersons “the opportunity to address this as private citizens.”

Blame for a lack of progress can’t be laid solely at the planning departments feet, Price Johnson added, however.

The Emersons could have decided to settle this issue long ago, she said. “It’s always been in their ability to resolve it.”

With Pederson’s resignation, some of the responsibility of shepherding the next steps falls to Keith Higman, who was recently appointed interim director of the planning department.

Higman said he expects the Emersons to appeal the enforcement order, which may take the issue out of his hands.

If it does come back to the commissioners while he’s in charge, Higman said he was unsure exactly how he might proceed, but added he would not make any big decisions without board support as he is a temporary leader.

“The clock is ticking and we are anxiously awaiting to see how the Emerson’s respond,” he said.

 

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