As an update to the article I published on 9/1/13 regarding the Emerson’s Wetland Issue. Here is the latest news: Island County has, without good cause or reason, unilaterally defaulted on the legal agreement that they made with Ken and Kelly Emerson to settle the building permit/wetlands issue which resulted in an AUTOMATIC TERMINATION. Everyone had hopes that this agreement and subsequent wetlands report would finally end this issue that started out as a political attack on Commissioner Emerson.
Several months ago an agreement was reached between Island County and the Emerson’s that resulted in them paying a $5000.00 penalty for nothing and required the Emerson’s to hire another Wetland Specialist to perform another wetland review of their property on Camano Island. The Wetland report was due on the 28th of August and it was submitted by the Emerson’s on the 27th of August and timely accepted. The new wetland’s report came to the same conclusion as the previous report(s) and review by several other Certified and licensed wetlands scientist that there are no wetlands or a stream on the Emerson’s property.
In further support of the Emerson’s side of the issue, they also presented additional, but not required, scientific data in the form of a soil sample report that was done by a Department of Ecology approved lab that again confirmed “no hydric soils” and they provided another “peer review” by another WA state licensed Hydro-geologist who’s own independent analysis further supports the Emerson’s Position.
This latest development where the county has defaulted on the agreement that the county itself had written is certainly more than troubling. The Emerson’s paid the $5000.00 penalty and they hired another wetland specialist per the agreement out of their own funds and the county has apparently taken no action to process the permit “in good faith” as required by the agreement.
Ken Emerson had made an inquiry almost a month ago requesting the status of the required permit issuance. He received a response back from Andy Griffin that the permit would be ready the next week and that was close to a month ago. Unfulfilled promises by both Andy Griffin (Building official) and Dave Wechner (Planning Director) do not constitute a good faith effort..
On 9/16/13 the Emerson’s lawyer transmitted a default notification pursuant to the agreement to the County’s lawyer informing them that Island County is in default. Island County had 10 days to “diligently pursue cure to completion”. To date, Island County has performed none of the obligations set in their own agreement. Nor have they diligently pursued anything other than keeping the problem alive by violating various codes of ethics, rules of proper conduct and other defiance of the facts, just because they do not like the results.
Island County staff did do one thing. They supposedly attempted to contact the Emerson’s wetland scientist directly without advice of their lawyer or notification to the Emerson’s lawyer in an attempt to cajole or harass the Emerson’s expert with questions (which have never been produced). This is an outrageous act of bad faith and unconscionable conduct on Island County’s part as it is in defiance of the conditions of the agreement which has strict limitations as to what can and needed to be done. The terms were set by them and they violated them!
This leaves Island County in default of a legal agreement that has been automatically terminated whereas the other party has performed every requirement made by that agreement in good faith. This is a truly shocking response from Island County and proof that they will never be able to deal in good faith with any citizen that may have an agreement with them if the outcome isn’t to what they want it to be. After all the Emerson’s have gone through with this trumped up politically motivated attack over the non existent wetlands that the County has claimed they have on their property this is a slap in the face to them and to all residents of Island County.
I would imagine that the next step by the Emerson’s will rightly be a huge damages lawsuit against Island County. As it was Island County’s agreement that the County government crafted themselves and that they designed to end this 3 year long dispute I am sure that a default on their part will not be looked at very kindly by the legal system when it comes to trial.
Below are the articles in the County agreement that were broken:
4. Building Permit.
4.1 Submission of New Wetland investigation.
As required under the Agreed Order, within sixty (60) days of that Agreed order, the Emerson’s shall submit a new wetland investigation for the Property to the Department prepared by a qualified wetland consultant of their choosing, The report shall be prepared strictly following the methodologies required by Ecology and the United States Army Corps of Engineers in the 1987 Corps of Engineers Wetland Delineation Manual (“Manual”) and the 2010 Western Mountains, Valleys, and Coast Interim Regional Supplement to the Manual. The Department may only seek independent third- party review of the new wetland investigation if it reasonably determines the methodologies identified above were not strictly followed during preparation of the new wetland investigation.
If the new wetland investigation concludes: (1) that a wetland and/or stream regulated by the County’s critical areas regulations exists on the site; and (2) that unpermitted construction activities have occurred within the appropriate buffer for said critical area that do not qualify for grandfathering under previous permits; then the Emerson’s will be required to file a Critical Areas Alteration application and shall have the option of either: A) using the buffer averaging provisions in the Island County Code to identify and protect a commensurate amount of buffer elsewhere on the property; or B) working with the Planning Department and their consultant to identify mitigation measures that the Emerson’s must take before any building permit may be issued.
4.2 County to Act in Good Faith.
Upon submission of the new wetland investigation as required in paragraph 4.1 above, the Department shall process Building Permit Application #l0-O2OlC in good faith.
5. Compliance with Laws.
The County and the Emerson’s shall at all times exercise their rights and perform their respective obligations under this Agreement in full compliance with all applicable laws, ordinances, rules, and regulations of any public authority having jurisdiction.
6. Expiration of Agreement.
This Agreement shall expire upon the earlier of: 1) the occurrence of all of the obligations required of each party under this Agreement; or 2) the automatic termination provision of Section 7.1 below.
7. Default and Remedies.
7.1 Default. If either the party fails to perform any act or obligation required to be performed by it hereunder, the other party shall deliver written notice of such failure to the non- performing party. The non-performing party shall have ten (10) days after its receipt of such notice in which to correct its failure to perform the act or obligation at issue, after which time it shall be in default (“Default”) under this Agreement; provided, however, that if the performance is of a type that could not reasonably be cured within said period, then the non- performing party shall not be in Default if it commences cure within said ten (10) day period and thereafter diligently pursues cure to completion. In the event the Defaulting party fails to take actions to cure the Default as allowed by this Section 7.1, this Agreement shall automatically terminate.
In the event of a party’s Default, then after giving notice and an opportunity to cure pursuant to Section 7.1 above, the non-Defaulting party shall have the right to exercise any or all rights and remedies available to it in law or equity including, without limitation, a suit for damages, the initiation of proceedings for specific performance, and/or an injunction to compel the Defaulting party to observe or perform it covenants and obligations hereunder.
Below for reference is the previous articles we have written on this issue:
The Emerson’s Wetland’s Issue May Finally Be Over. There Are No Wetlands On The Emerson’s Camano Island Property
Emerson’s statement on settlement with County
More information on the Emerson’s wetland issue settlement
Island County Planning Department VS Emerson wetlands update
Island County site study report missing in Emerson wetland dispute
Island County’s wetland report found lacking
Island County’s report found lacking; SAY IT ISN’T SO, PLEASE (UPDATED APRIL 4, 2012)
Correspondence to Bob Pederson Island County Planning and Development from Steve Nuegebaur SNR Company concerning the Emerson’s Island County Washington wetlands prosecution .
Island County’s only Document “Proving”? Emerson’s Wetland is Available to All
Emersons release Wetlands Report- Evidence of Island County’s determination groundless and amateur
The latest in the Emerson VS Island county
Comments on the Emerson lawsuit against Island County