Whidbey News-Times


County agrees to reduce fines in settlement with Emersons

Whidbey News-Times South Whidbey Record Editor
July 4, 2013 · Updated 12:22 PM

A three-year dispute between Island County Commissioner Kelly Emerson and the planning department may be nearing an end.

Emerson announced Monday that she and her husband, Ken, agreed to a settlement.

The agreement stipulates additional action and a continuance of their previously rejected building permit, but brings the matter of their outstanding fines to a close.

“In many respects, our story of our painful dealings with local government over land use issues is a story that has been repeated many times by many individuals who have been subjected to pressure from a powerful government,” said Emerson, reading from a prepared statement.

“We are relieved that our private nightmare is coming to an end, but we remain concerned about what happens to other property owners in the county in similar circumstances.”

The settlement largely absolves the Emersons from all but a fraction of their $37,000 fine.

According to her statement, Island County will return $2,000 in filing fees to the Emersons and, in return, the couple has agreed to pay $5,000 “to acknowledge that we made some mistakes in the permitting process,” Emerson said.

According to Island County Commissioner Jill Johnson, the board was not involved in hammering out the details of the settlement, but said she believes the outcome is a good one and not uncommon for such situations.

Johnson said the goal was always one of compliance and to treat the Emersons as any other citizen.

“This a good thing for Island County as it allows us to move forward,” Johnson said. “I think most people just wanted this to be resolved and a settlement is much preferred over a long dragged-out process.”

In late 2010, during Emerson’s bid for the District 3 commissioner’s seat, the couple began building a patio at their Camano Island home without a permit. Word spread quickly and their “mistakes in the permitting process” mushroomed into a political firestorm.

Emerson successfully unseated opponent John Dean at the polls, but the controversy continued on for nearly three years. The Emerson’s sued the county early on but most of the time was spent debating the existence of a wetland on the property.

Former planning Chief Bob Pederson, who was named in the Emerson’s suit, stepped down earlier this year but not before denying the couple’s building permit and ordering them to pay $37,000 in fines.

The Emersons’ appealed both decisions.

One of the issues was to be heard by the Board of Commissioners and the other by Michael Bobbink, the county’s hearing examiner, but the settlement eliminates the need for action by either body, according to Justin Kasting, a special deputy prosecutor with Snohomish County.

Kasting served as the county’s legal counsel in this matter. He said he could not go into the details of why the fine was reduced but did say returned filing fees — about 80 percent of the total paid — was consistent with county policy upon a withdrawal of an appeal.

“The reasoning is the appeals will not be going forward,” he said.

As for the issue of their building permit, Emerson said in her statement that a third hydro-geologist is evaluating their property to determine the existence of a wetland and that a report should be submitted to county officials soon.

“Two previous reports from licensed qualified hydrogeologists found no wetlands on our property and we fully expect that the third report will reach the same conclusion,” Emerson said.

She added that the two previous reports cost “in excess of $50,000” and that the Emersons will not be reimbursed.

“Never mind all the facts, corruption and abuse of power, what really mattered to the media and the dissenters, was that apparently the Emersons were destroying the planet and expecting to get away with it,” Emerson said. “So here we are, almost exactly three years and $50,000 later, being forced to provide a third study and pay $5,000.”

According to Kasting, only one report was conducted. It was reviewed by a second professional, however, who agreed with the initial findings, he said. The terms of the settlement allow for a second examination of the property by a qualified professional of the Emerson’s choosing.

“Hopefully, this new wetland delineation will put the issue to rest for good,” Kasting said.

Keith Higman, interim director of the planning department, added that the agreement gives the county the right to a third-party review of the results if the quality of the work is in question.

“It’s not the county’s place to dictate who the Emerson’s hire... but the quality of the work will be determined when they submit,” he said.

Higman, one of the primary negotiators of the settlement, said his goal was to “find an end point” to the issue that resulted in compliance. The planning department’s responsibility is to assist the public with development applications that meet county and state standards.

But while Higman and Johnson are hailing the settlement as a step forward, not everyone is so happy with the agreement.

Neil Colburn, a former Langley Mayor and vocal Democrat, called it “unfair” and said he thinks the Emersons got off the hook too easily.

“I resent it,” Colburn said. “But I’m more outraged that she would sue the people she was about to represent.”

“I really believe Kelly Emerson has shown she has no understanding of what public service is really about.”

Emerson said in her statement that “a large majority of Americans nationwide do not trust our government at any level” and that she is working to “build renewed confidence in our own public institution.”

“My own difficult experience is nearly over now, but I have learned a lot, and I want to put those lessons into action to protect our citizens - our customers,” Emerson said.

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