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Orcas Island man contests criminal convictions for land-use violations

By Scott Rasmussen

Journal editor

An Orcas Island man is contesting two criminal convictions for violating local development rules for his use of a building constructed on his property without permits and without a county-approved sewage disposal system.

In late November, Friday Harbor attorney Lawrence Delay filed an appeal in San Juan County Superior Court on behalf of his client, Errol Charles Speed. He was convicted by a jury in September of unlawful use or maintenance of an unpermitted structure, a misdemeanor, and of failure to have an approved sewage disposal system, also a misdemeanor, at the conclusion of a trial in District Court.

Speed was sentenced on Nov. 6 to 90 days in jail with 90 days suspended for two years on each count, and fined $1,000 with $750 suspended for two years on each count as well. He was ordered by Judge Stewart Andrew to obtain county approval on the sewage system within 120 days and to submit the necessary paperwork for the building to comply with local regulations within 60 days.

Two other misdemeanors brought against Speed in connection with the case, unlawful occupancy of a building and making false or misleading statements to a public servant, were dismissed by Andrew after the jury failed to reach a unanimous decision on either.

Criminal prosecution is an exception rather than the rule when disputes over land-use or code violations arise, according to Prosecuting Attorney Randy Gaylord. The county attempts to resolve such disputes first through education and information about local regulations, he said, and by seeking voluntary compliance from the presumed offender.

But in those circumstances where rules are being flouted and interactions become adversarial, Gaylord said the county will pursue compliance through criminal charges. The county first sent Speed a notice of violation in early January of 2012 but was prevented from inspecting the building until obtaining a search warrant in October. Criminal charges were filed in November.

In mid-December, the Freedom Foundation aired a video entitled “Tales of Tyranny – The Errol Speed Story,” in which he said county officials never asked to see the property.

County officials assert that letters and emails were sent asking to set up a date for inspection of property and the building in question.

According to Gaylord, Speed’s attorney denied the county access to the property by setting out criteria for inspection, which was found  “unacceptable” to the county.

Delay declined to comment on the appeal, and referred to a legal “brief” that will be filed with the court by Jan. 10 for information about the cause for challenging the convictions in higher court.

Gaylord said that Speed requested and was granted a “stay” by Judge Andrew in filing for permits while the appeal is under consideration of the court.

In the district court case, Speed argued the building was constructed under provisions of the county owner/builder program as an accessory agricultural building, and that because it was under 1,000 square-feet in size, it was exempt from needing a permit. In addition, he argued that county officials conducted an illegal inspection of his Minnow Creek Road property by relying on aerial photos to obtain a search warrant.

At trial, prosecutors argued that the building was used as a residence, and submitted photographs showing it was furnished with a bed, couch, kitchen, wood stove, dining table, and constructed with skylights and solar panels, and with an attached deck, measured 1,332 square-feet in size.

In the online video, Foundation Property Rights Director Glen Morgan asserts in prosecuting Speed that local officials “over-criminalized what should be minor infractions” and that the sheriff, prosecuting attorney and district court judge decided to “criminalize poverty in San Juan County.”

 

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