Prosecutor Update on three appeals: Critical Area Appeals Are Over; Durland Loses Dispute with Neighbor; Hearing Set on Deadline for Challenging Building Fee

Common Sense Alliance v. San Juan County — The legal challenge to the 2012 critical areas ordinance has ended! The effort to overturn the County’s Critical Area regulations concluded on Monday Oct. 3, 2016 when the United States Supreme Court denied the request of Common Sense Alliance to hear its appeal. “It’s really over now,” said Prosecuting Attorney Randall Gaylord.

The Washington Secretary of State website shows that Common Sense Alliance is governed by Ed Kilduff, Alexandra Gavora, Shari Harrison, and Sam Buck. Common Sense Alliance was involved at every stage leading up to the adoption of the regulations and then at all five levels of appeal. Gaylord explained that Common Sense Alliance had lost before the Growth Board, the Superior Court, the Court of Appeals, the Washington Supreme Court and now the United States Supreme Court.

Gaylord said that San Juan County is only the second county in the State that was required to defend appeals to the U.S. Supreme Court.

The issue was whether the legislative action of the county council, which was a science-based approach to regulations to protect wetlands and shorelines, was a “taking” of land without compensation. The Courts below said “no” and that decision was not changed on appeal.

Gaylord said these appeals require a big effort of time and money and he acknowledged good work of deputy prosecutors Amy Vira and Jon Cain

Durland v. San Juan County, Wesley Heinmiller and Alan Stameisen – In a decision issued on Sept. 12, 2016, the Court of Appeals in Seattle upheld a lower court ruling against Michael Durland in a case challenging permits issued by San Juan County to Durland’s neighbors Wes Heinmiller and Alan Stameisen.

The issue in the case was whether Durland’s neighbors could improve a barn near the property line into an accessory dwelling unit. Durland contended that the barn was too close to the property line and was an illegal structure. The County Hearing Examiner and trial court had ruled that the permits were properly issued and the Court of Appeals agreed. The court also required Durland to pay the attorney fees of the neighbors.

Community Treasures and John Evans v. San Juan County – The court of appeals in Seattle set time to hear oral arguments in the case involving a challenge to the price of building permits. Oral argument scheduled on Monday Nov. 7, 2016 at 9:30 a.m. Prosecutor Randall Gaylord will appear for the County before the three judge panel.

Community Treasures is a nonprofit on San Juan County that is involved in recycling activities. It is led by Frank and Patricia Penwell and Dwight Ware. According to court papers, other leaders in the organization are Ed Kilduff, Alexandra Gavora, Jim Knych, Dale Whitmill, Evelyn Fuchser and Kevin Roth. John Evans is a former county commissioner and leader of the local building association.

The issue in the case is whether a challenge to a building permit application fee must be made within 21 days of the issuance of the building permit in accordance with the Land Use Petition Act. The position of the county is that an appeal of any part of the building permit process, including the application fee, must be made in that short time period to bring finality to land use decisions. Community Treasures has asked the court to allow the application fees to be challenged for three years after issuance.

A decision is not expected before Spring 2017.