No Loss for Words

With the election approaching, there is an issue that needs some consideration before voters elect the next county council members. There is no doubt that I have a vested interest in the discussion since I am one of the candidates; but I think the details of this case warrant a look prior to the election with the understanding that a trial is scheduled for early next year to determine the final damages paid in the case. The merit of the case has already been established in the first phase of the trial, Snohomish County violated a “contract” and is now subject to paying damages.

I started writing this blog a year and a half ago when the city of Snohomish embarked on the public process to investigate the issues relative to Urban Growth Boundary expansion into the area north of US Highway 2 along State Highway 9. To my knowledge there was no public declaration that Snohomish intended to “annex the area” under the cover of darkness without that public discussion. It was an exercise to gather information.

From the date of the announcement, the City of Lake Stevens opposed the process. Even though Lake Stevens has one of the largest Urban Growth Areas in the county, they maintain that they need all the area north of US2 to provide for expansion of their city and provide commercially developable land to mitigate the unusually large number of residential lots created under the Snohomish County Comprehensive Plan for Lake Stevens. There is no argument that Snohomish County undermined Lake Stevens’ Comp Plan when they failed to reserve land for commercial development.

Providing land for commercial development is critical to a city, but finding appropriate locations for it is also a planning challenge because you have to look out so far into the future and anticipate where and when you will need it. The key is to adopt a plan and reserve the land so it’s there when development catches up. That is why they call it “comprehensive” planning.  Snohomish County demonstrated this past week that when they were motivated to preserve mobile home parks they found a way to rezone the land so conversion to other uses was virtually impossible.  Preserving land for Commercial uses in Lake Stevens’ UGA just wasn’t a priority.

Snohomish was entering into that process of looking out into the future without a specific plan in mind, but with ideas driven by property owners. One of those property owners with a sizable chunk of land suitable for commercial development would be a plum for whichever city ultimately prevailed.

That significant property owner approached the two cities and Snohomish County to inquire about how they could move the planning process along. UGA expansion requires that a city demonstrate that they have met or exceeded threshold requirements in the Growth Management Act. The proof would be provided by mapping and gathering data about existing conditions then comparing them to capacity. For example; a city has added population, consumed buildable land or taken previously buildable land out of consideration because of critical area designation so it doesn’t have enough resources to meet future population numbers, it might be allowed to expand.

That process of gathering data and meeting other regulatory requirements is pursued in parallel by both the private sector property owners and the public agencies with the expectation that at the end the county would decide whether the UGA expansion would be allowed. It is a lengthy and expensive process designed to show whether a city meets criteria or not.

And that is where things get interesting.

The significant property owner was promised that if he shared in the cost of gathering and analyzing the data and performing other tasks he would receive an opportunity to make his case. He would get his day in court! Based upon that contract, he hired consultants to do the work required by Snohomish County. He spent almost a million dollars jumping over hurdles set up by the county based upon that promise.

Snohomish County uses a docketing process to manage changes to the County Comp Plan. Each year applications come in from both public and private entities that are then analyzed to determine how well the pertinent requirements have been met. The significant property owner was originally booked on the Docket 12 calendar to be heard in 2008. Being on the Docket 12 calendar meant there was substance to the application.

Since this project was reasonably complex, the county decided they weren’t adequately prepared to take up the application in 2008 and they pulled it from the Docket 12 calendar. The property owner would have to wait another year to learn his fate. The project was moved to Docket 13 to be heard in 2009. It wasn’t the outcome he had hoped for, but the stakes were high and a thorough analysis was necessary to make sure the proper decision was made. He would get his “due process” in 2009.

Then, later in 2008 without a hearing or anything, the county council instructed PDS to pull the project off the Docket 13 calendar and announced the project was dead and would not be proceeding to public hearing, period. They announced that the County Council had somehow already decided that the project failed to meet the standard for expansion without reviewing all the data.

The significant property owner had invested nearly a million dollars based upon the promise of “due process” as outlined in the code and now his process had been terminated capriciously by the county council.

The significant property owner sued Snohomish County in King County Superior Court. The trial took place in early 2009. After hearing all the evidence the judge ruled in favor of the property owner. In her ruling she supported every one of the claims enumerated in the plaintiff’s complaint. She also suggested that based upon the evidence there might have been “Tortious Interference” by the county that would entitle the plaintiff to more than just reimbursement for his expenses. http://en.wikipedia.org/wiki/Tortious_interference

If the plaintiff could prove in the “damages” part of the trial that the county council members conspired to deprive the significant property owner of his business opportunity, he would also be entitled to loss of future income derived from the project along with his out of pocket investment. That could be huge!

During the first phase of the trial, the attorney representing Snohomish County offered no rebuttal to the plaintiff’s evidence. It was so clear that Snohomish County was in the wrong that he offered NO defense. What does that tell you?

The significant property owner asked the county for his nearly one million dollars and the county countered with an offer of $40,000.

The Damages Phase of the trial is scheduled for early in 2010. The significant property owner is currently taking depositions from elected officials in both cities and the county along with private citizens who might have been involved in conversations that might prove“intent” to deprive the significant property owner of his opportunity.

Since the merit of this case was already decided in favor of the significant property owner the court will now decide how much the significant property owner is entitled to in damages. If he can prove “Tortious Interference” the award could be anywhere from $5 million to $85 million.

There is currently an ongoing dialog between the significant property owner and the county regarding possible settlements. I am not privy to any of those discussions so I cannot speak to their substance, only to the fact that they are taking place.

Since the council took this action in violation of their own prescribed process, “damages” are not covered by insurance. Any damages that are awarded in this case will be paid to the significant property owner from the General Fund already crippled by the recession.

All this grief because Dave Somers’ power play pushed the county council to violate their own rules and deprived a vested applicant from due process and his day in court. The question to be asked in that regard is “Why would they take such a risky action unless there was more involved than just a Snohomish attempt to expand their UGA?” What else was in play that was not a part of the public discussion?

By letting the process continue to completion none of this would be happening. If the result of the exercise produced evidence that Snohomish did need to expand their Urban Growth Area, what was wrong with that finding? Unless a deal had already been made with Lake Stevens for that land, there was no harm.

So the issue for Snohomish County Voters in this election comes down to deciding whether Dave Somers and his Democratic Party majority colleagues demonstrated the kind of judgment we want and need in elected officials today. I think not!

This is just another in a string of issues that demonstrate the poor judgment of Dave Somers.  The Council’s disregard for the law and the rights of private property owners is stunning!  When all the evidence is presented, it will be shown that property owners have been significantly damaged because The County abused its power.

Can we really afford to pay millions of dollars for negligence, arrogance and ego?

So, who do you want representing you on the Snohomish County Council?

I am running for County Council because I respect the law and the citizens of Snohomish County. I leave it to the voters to decide about Dave Somers fitness to serve.

Ballots are going out today for the General Election of 2009 where voters will decide who is to lead us during the next couple years.

Vote For STEVE DANA!