A portion of a lawsuit brought against Island County by a former commissioner and her husband is moving toward a jury trial.
Last month, a judge in King County Superior Court threw out four of five claims that Kelly Emerson, the former commissioner, and her husband, Kenneth Emerson, raised in their lawsuit.
Judge Kimberly Prochnau ruled that a breach of contract claim is the single issue that can move forward to a trial scheduled for a month from now.
This is the second lawsuit filed by the Emersons against Island County in connection with a construction project in the backyard of their Camano Island home. The Emersons started work on a sun room project without first obtaining the necessary permits.
That issue led to a dispute between the Emersons and the Island County Planning Department about whether or not a wetland was located on the property, the presence of which could preclude construction.
That issue was finally settled last fall. The Emersons’ attorney, Justin Park, of Bellevue, said Island County’s wetland expert studied the property and determined a wetland was not present.
The first lawsuit was filed against the county by the Emersons on Nov. 1, 2010, the day before Kelly Emerson was elected as county commissioner. The suit named a former county commissioner, planning director and building inspector as defendants and alleged defamation, trespass, violation of the Consumer Protection Act and violations of due process and property rights; the county was later added as a defendant.
Island County Superior Court Judge Alan Hancock granted Island County’s motion for summary judgment, dismissing the lawsuit.
The Emersons faced fines totaling more than $100,000 under a supplemental enforcement order for violations of county building codes and critical areas ordinances. They didn’t respond to the order, which included a $500-a-day fine.
Since the wetland issue was unresolved, the Emersons submitted two different reports by experts who concluded that no wetland was present on the property.
The planning department, with consultation by the Department of Ecology, refuted both reports, asserting that the experts failed to use proper methodology.
The Emersons filed an appeal after the planning department issued a second enforcement order and the planning director denied their building permit in 2013.
In June 2013, the Emersons and Island County entered into an agreement under which the couple agreed to pay $5,000 in fines and obtain a third wetland report. The planning department agreed to begin processing the couple’s application for the building permit.
The Emersons paid the fine and submitted a wetlands report in August 2013.However, the planning department, in concurrence with state Ecology, determined that “the methodology of the wetland report was not in compliance with federal and state standards,” according to the county’s motion for summary judgment.
The planning department repeatedly told the Emersons that the issue could be easily resolved without cost to them if they allowed a county or Department of Ecology wetland specialist to inspect the site, Mark Johnsen, an attorney representing the county, wrote in the motion.
The Emersons refused the repeated requests, saying that the county had no right to enter the property. But their lawsuit paved the way for the county to gain access to the property. The court allowed a county wetland specialist to visit the site under the rules of discovery, according to court documents.
Island County’s wetland specialist visited the site last October, took samples and concluded that there was no wetland on the property. The county issued the building permit, but the Emersons refused to pick it up, Johnsen wrote.
The Emersons’ lawsuit alleges that Island County breached the agreement by not processing the building permit in a timely manner. The couple filed the lawsuit on Nov. 5, 2013. In addition to claiming breach of contract, the Emersons accused Island County of “takings,” fraud, a violation of a state law regarding unlawful actions taken by a government agency and a civil rights violation.
Johnsen said the King County judge dismissed all those claims except the breach of contract argument.
Island County will fight the claim, Johnsen said.
