County Sues Landowners - Officials say septic tank sits in floodway, violates code

by Leif Nesheim
Sequim Gazette Staff Writer

Wednesday, February 5, 2002

The law may be writ in stone, but rivers flow where they will.

The impact of the law and the river on some property owners whose land lies at the mouth of the Dungeness River has some landholders at logger- heads with county officials.

The county filed a lawsuit Jan. 16 to make the landowners---Jerry and Alanna Levesque, Bob Forde, and an unnamed tenant---remove an above ground septic holding tank. Clallam County commissioners on June 11, 2002, denied an appeal by the owners to a county hearing examiner’s earlier decision that the holding tank was illegally placed in a river floodway.

Lauren Erickson, senior deputy prosecuting attorney for the county, said the lawsuit was a “last resort” to make Forde and the Levesques comply with the commissioners’ decision that the holding tank must go.

The problem with the holding tank, Erickson said, is that several neighbors had complained about it and it could be washed away in a flood.

“We waited and sent several letters asking if they were going to comply,” Erickson said.

When the holding tank still hadn’t been moved, the commissioners met with Erickson in executive session and decided to proceed with a lawsuit, Clallam County administrator, Dan Engelbertson said.

The problem with the tank is that its mere presence violates the county critical areas ordinance by being in a floodway. An interim critical areas code went into effect in 1992 to meet the requirements of the state Growth Management Act of 1990. The current ordinance was adopted in 2000.

In a separate but related case, the state Superior Court on Jan., 10 upheld the decision against Forde’s challenge to the legal status of the ordinance by denying his appeal to have the critical areas ordinance overturned by referendum.

Forde argued that the ordinance was an unconstitutional intrusion into the rights of property holders.

For Forde, all of the legal wrangling that began in September, 2002 when the county’s department of community development firs issued the notice to remove the holding tank---and roadway fill material that was later removed---is an indication of a bigger problem, the erosion of the rights of individuals by the insidious “tentacles” of government.

“They are regulating the American Dream out of existence,” Forde said. “We are built on the idea of a free society. If we’ve created any damage, I’d sure like to know what it is.”

Erickson noted that the county’s problem with the holding tank isn’t whether or not it is currently damaging area ecology but that it built on land where it shouldn’t have been constructed. That idea irks Forde.

Forde flipped to the section of the state constitution, marked with a yellow highlighting pen in his well-thumbed copy of the document, to illustrate his point.

“It’s right there,” he said as he tapped at the text. “All political power is inherent in the people...Government derives its powers by the consent of the governed.”

In this case, Forde contended, he did not give the county government his consent to tell him how to manage his property.

“Their policy is predicated on fear of what might happen. If there’s no damage, why are thy buying out (the property owners on Rivers End Road).” Forde asked.

The county is currently in the process of assessing the value of the properties on Rivers End Road and on Kinkade Island, about 11 miles upstream.

At Rivers End Road, six of the initial independent appraisals and separate independent reviews are completed of the approximately two dozen properties, said county associate planner Cathy Lear. She said the appraised process should take several more months.

Most of the Kinkade Island property owners have indicated a willingness to sell and 16 owners representing 16 properties on Rivers End Road signed letters of intent to sell.

The appraisal of the Forde and Levesque property was halted by the county because it wanted further clarification of the owner’s” motives before spending money on the appraisals, Lear said.

“We just want assurance that they truly are interested in selling,” she said.

Forde scoffed at the idea that a property owner could make a decision about selling without knowing what the offer would be.

“If the price is right, we’re willing to sell,” Forde said. He added that he doubted the money would be there to make a fair offer.

The county has $1.5 million to appraise and purchase the Rivers End Road properties.

“If you divide the money (between the 20 or so properties) what do you get?” Forde queried.

Whether all or some of the property owners sell, the county will still be able to proceed with some of their environmental improvement plans.

“It’s not an all or nothing proposition,” Lear said.