[Capr-announce] CAPR News September, 2007

[Jeff Wright]

CAPR  NEWS


THE MONTHLY NEWSLETTER FROM CITIZENS’ ALLIANCE FOR PROPERTY RIGHTS
August / September, 2007


Supreme Court Rules in Favor of Property Owners

In a surprising 8-1 decision, the Washington Supreme Court has ruled in
Swinomish Tribal Community and Washington Environmental Council v. Western
Washington Growth Management Hearings Board, et al. the GMA does not require
mandatory buffers along streams and rivers.  After years of wrangling over
the issue of what “best available science” means and how it should be
applied, the Supreme Court clearly stated in its ruling that local
governments are not required to follow the “best available science”.

The case involved a challenge by the Swinomish Indian Tribe and Washington
Environmental Council (WEC) against Skagit Co. over its buffer sizes.  The
tribe and WEC argued that “best available science” (BAS) requires mandatory
buffers.  They claimed farmers were required to plant 200-foot buffers on
their property along streams, which had legally been cleared in the past to
make way for farming.  The County and farmers argued the GMA does not force
local governments to follow the so-called BAS.  The County and farmers
rightfully argued the GMA only requires they “include” the science in their
decision making process when enacting its critical areas ordinances.

Hopefully this ruling will go far in countering the heavy-handed use of BAS
by some jurisdictions and especially the Department of Ecology, as some of
the BAS being used is obviously junk science.  Would the original City of
Kent CAO have stood if this ruling had come before DOE forced the City to
its will?  Quite possibly!

It is interesting to note that the lone dissent came from Justice Susan
Owens, who was a tribal judge before being elected to the Court.  You can
read the majority opinion here
<http://www.courts.wa.gov/opinions/?fa=opinions.disp&filename=763399MAJ> .


Property Owner Faces Additional Jail Time for Alleged Minor Violation

A Pierce Co. man is facing 90 days in jail because he refuses to play by the
crooked rules of the Pierce Co. Planning Department and the Pierce Co.
District Court.  Property owner Paul Hiatt maintains that the County and the
Court have operated outside the law in his case and it appears that he has
good arguments to back it up.  Will he finally get a shred of justice?  It’s
looking grim.

It started going bad for Mr. Hiatt about 4 years ago after he bought a
neighboring property.  Wanting to reestablish a drainage swale on the
property, Hiatt arranged an on-site meeting with a County official to see
whether he would need a clearing and grading permit.  The official told him
that the project was minor and would not need a permit.  After he had worked
on the project, a neighbor, who had also wanted to purchase the property,
called the County to report the clearing “violation”.  That report led to a
nightmare of events that has lasted for 4 years.

When Mr. Hiatt was told that he would have to refurbish the swale and
“mitigate “ the damage he said “No”.  When District Court Judge Kenworthy
told him that he would be held in contempt when he said that he would not
follow a court order to do the same, he again said “No”.  And when he was
told that he faced jail time for being in contempt, he said “Nuts” to that
one also.  It is obvious that whole affair quickly became more about who was
going to be “the boss” than a minor violation.  In this case, “the boss”
sentenced Hiatt to jail in lieu of a $100,000 cash bond.  He then spent 60
days in jail, unable to defend himself.  It took his brother, a writ of
habeas corpus and $20,000 to get him out of jail.  As the wrangling
continued, Mr. Hiatt was later sentenced to 90 days in jail and is free on
appeal after posting an additional $5,000 cash bond.  All this over what
appears to be a bogus allegation and questionable court proceedings.

On September 10th, Mr. Hiatt was back in court for an appeal hearing with a
new judge for reconsideration of a motion for Relief From Judgment.  Hiatt
and his family have spent 4 years living in a nightmare and have seen their
savings depleted.  Rather than happening in America, the whole affair reads
like something out of the Third World.  We will see if the new judge does
the right thing, giving him at least a shred of justice.  Keep your fingers
crossed.



Election Endorsements

Judy Fenton
The CAPR Board has endorsed Judy Fenton for Seattle City Council Position
#9.  She is running against appointed incumbent, Sally Clark.  Besides being
on the right side of property issues, Judy supports adequate funding for the
Seattle Police Dep’t. and wants to maintain the viaduct versus deleting it
in favor transit and cars clogging the surface streets.  If you live in
Seattle and don’t relish the idea of riding your bike to your downtown
workplace, as promoted by Mssrs. Nickles and Sims, Judy is your person.
More at www.judy-4-seattle.com <http://www.judy-4-seattle.com/> .

Cheryl Haskins
The CAPR Board also endorses Cheryl Haskins for Renton City Council.
Haskins is a first time candidate running for an open council seat.  She is
bright, articulate and holds an MBA degree.  And her views on property
rights are skewed in favor of the citizen rather than the government.  As
evidence, she was a critic of Renton Mayor Kathy Koelker when the Mayor
stated that the City might use eminent domain to secure private properties
in the Renton Highlands area for the benefit of a private redevelopment, ala
the famous Kelo scenario.  The Mayor’s plan essentially would have taken a
lot of affordable housing and turned it into upscale townhouses and the like
to “revitalize” the area.  For more information visit
www.voteforcherylhaskins.com <http://www.voteforcherylhaskins.com/> .


November Court Date Anticipated

Pacific Legal Foundation now anticipates that oral arguments will be heard
by the Court of Appeals on CAPR’s facial challenge of the King Co. Clearing
and Grading Ordinance sometime in November.  PLF originally filed the case
in Snohomish Co. Superior Court in early 2005 on behalf of several
individual property owners and CAPR.  The main thrust of the challenge is
that the ordinance amounts to an unfair “tax” on selected property owners, a
legal argument that has been successful in the past.  The Appeals Court
agreed to take up the case when the superior court judge failed to address
this main question and ruled against CAPR.

PLF attorney Brian Hodges, who is arguing the case, notes that King Co. is
using a similar strategy to the one it used in superior court.  Rather than
just addressing the claim, the County is burying the court in “briefs”
relating to the CAO in an attempt to cloud the real question.  Since this
technique confused the superior court judge away from the real question,
Hodges is supplying the court with countering briefs.  No small job given
the mountain of “junk” that the County is dumping on the court.  While we
expect a favorable outcome, this case will no doubt end up with the Supreme
Court after the appeals ruling.


Odds and Ends

What is “CAPR-Announce”?
The CAPR-Announce list was instituted by the CAPR Board early on to keep
supporters informed about CAPR related activities.  It is a relatively large
list of email addresses of folks who want to be tuned in to CAPR and
property rights issues.  Unless this letter was forwarded to you, most
likely you have received it because you are subscribed to the List.  The
Board has tried to be judicious in not over-using the List.

It is fairly common that individuals and groups will request that
announcements be put out to the List for items that they feel CAPR
supporters would be interested in hearing about.  It is also most typical
that the List moderator will deny the request as CAPR values your support
and feels that the use of your email is a privilege not to be used lightly.

Snohomish Co. CAO Effective October 1, 2007
The new Snohomish Co. Critical Areas Ordinance will go into effect on
October 1st.  While still extreme, its buffers are net/net smaller than
those in the King Co. CAO and those pushed by environmentalists.  Who are
planning to challenge the CAO, of course.

A Good Night for the Legal Fund!
The CAPR Legal Fund fared well at the August 7th “Annual Candidates Fund
Raising Dinner” sponsored by the Eastside Republicans Club.  Due to this
being a “lite” year as far as the number of candidates goes, the ERC also
invited three organizations to attend.  With many CAPR supporters in the
crowd, and especially one very generous donor, the Legal Fund took in
$14,995 in contributions.  This was the highest total by far of any
candidate or organization.  In addition, the ERC contributed another
$2,316.29 from a pool of matching funds they have set up.  Add to that
another 10% in matching funds from a pool set up by another donor
previously, and the Fund did very well indeed.




CAPR Meeting Schedule


The next meeting of the King Co. chapter of CAPR will be held at 7:00 PM,
Thursday October 4th.  The meeting site is the IHOP restaurant located at
1433 NW Sammamish Rd. in Issaquah.  Consider coming early for dinner and
conversation.


Support the Cause!


As a volunteer organization, CAPR depends on our supporters and Board to get
things done.  If you have time to donate, please contact us.  If you would
like to make a financial contribution, you can do so with this link:
http://www.proprights.org/donate.php.


Jeff Wright
Secretary, CAPR
E-mail:        jeff at proprights.org <mailto:jeff at proprights.org>
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