New CAO regulations should be just | Letter

Mar 23, 2016

Editor, The Beacon:

In the March 17 edition of The Beacon, there was a report on the March 15 City Council hearing on revising the critical areas ordinance, which included a shocking example of how unfairness can happen in the area of environmental law [“Residents speak out on critical areas policy,” front page].

In the updating, the council needs to make sure the new laws are just.

The Beacon article included Sue Little’s experience with the ordinance. Sue has a stream that runs through her property and part of it was in a culvert.

In Edmonds, many streams are partly in culverts and/or under the roads. In 2011, the city, along with the State Department of Fish and Wildlife, demanded that she "daylight the stream" (take the stream out of the culvert).

She had to spend $45,000 and has been subject to annual inspections since then to make sure she complied and continues to comply.

She says it was stressful, and there is no question about that, because the fine for noncompliance is $100 per day until there is compliance.

Whether or not she is on a limited fixed income or finding the expense a hardship in any way was not taken into account. Even if the property owner can afford an attorney, in this type of situation having a lawyer for protection is almost impossible, because it is such a unique type of legal problem. Lawyers in this area will not touch a case like Sue's. Someone like Sue is at the mercy of the government.

According to the article, there are no fish in her stream. It is a "non-fish bearing tributary to Shell Creek.” Everything about this is illegal.

The Washington administrative code (220-110-030(15)) says if there are no fish in a stream, there can be no conditions of any kind imposed on the property owner.

Shell Creek itself is on record as having fish, but she is probably correct about there being no fish in the tributary going through her property. She lives there. Wouldn't she be the best witness on that issue? Most streams in Edmonds have no fish.

Assuming she is wrong and there are fish there, she was not contemplating doing work on her stream, where a hydraulic project approval permit is required. The city apparently, out of the blue, demanded the work and expense. Whenever any branch of government wants to use or control anyone's property ,under Amendment V of the U.S. Constitution, the government must buy the property and pay market value for it, whether it is taking it for a park, expanding a road or doing something to permanently improve the environment.

In the U.S. Supreme Court case of Dolan v. City of Tigard, Dolan wanted the expand her store, so she asked for a building permit.

The city said, "We will issue it if you donate a bicycle path and drainage ditch to the city.” The court said that had nothing to do with the regulatory purpose "so it was an illegal ‘taking.’” In Sue's case, the government cannot just come along and insist she improve her property. It is a "taking.”

I have lived in Edmonds for years and had many experiences with city staff. Each time they have been professional and helpful. People work for a city like Edmonds because they not only want to earn a living, it is a way to make the world a better place.

Environmentalists also need to be encouraged. They are not just living for themselves but want to protect the environment for future generations.

This letter is not about the staff or environmentalists. It is an alert that the system can be unfair. If Sue were to go to court, she may get damages for the $45,000, possibly attorney fees and damages for the cloud on the title to her home (interfering with the marketability because the inspections would show up on a title report, hindering a sale) and interest.

This all needs to be taken into consideration when the code is updated.


Mike Herb,





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