WhatcomCounty judge reverses Douglas ruling

Published on Thu, May 24, 2007 by ack Kintner

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Whatcom County judge reverses Douglas ruling

By Jack Kintner

In a brief, two-page final decision handed down last week, Whatcom County Superior Court Judge Ira Uhrig said that the city of Blaine was in error when it issued stop work orders on Bellingham contractor Joel Douglas’ Seascape condominium project in October of 2005. A preliminary verbal decision to that effect had been handed down last March.

The city had issued Douglas a building permit in June of 2005 based on a legal description of Douglas’ property that the city said Douglas agreed to modify, trading two small parcels of land involving a city right-of-way on Fourth Street.

City manager Gary Tomsic asked Douglas again on September 19, 2005 to make changes to the site plan but did not require them. This was a key factor in Uhrig’s decision according to court records.

The following month Douglas began construction on land that was still part of the city’s right-of-way, and the city responded with a stop work order based on a lack of site plan approval even though a building permit had been issued.

The stop work order specified that “all site work shall stop until site plan approval has been achieved,” that no work take place in city right-of-way without proper permits and that “no work shall be performed on the storm water system until owner receives city approval.”

The order allowed for work on existing structures to continue with the exception of a small maintenance building.

Douglas continued to do site work the next day which he said at the time was to prevent surface water from flowing under and damaging his building.

The city issued a second stop work order that day specifically aimed at stopping work being done in violation of the first stop work order which the city issued the previous day.

Douglas appealed. The hearing was presided over by Blaine’s municipal court judge Michael Bobbink, who is also the Whatcom County Hearing Examiner, after Douglas insisted that Blaine’s regular hearing examiner, attorney Roger Ellingson, recuse himself. Bobbink found that the city had acted properly and that the stop work orders were legitimate. Douglas then appealed to Whatcom County Superior Court.

The case was heard in February and March by Judge Ira Uhrig, who disagreed with Bobbink.

“The hearing examiner’s Conclusion of Law IX, stating that the city had authority under the Blaine Municipal Code to issue the stop work order, was clearly erroneous, and the [acting Blaine] hearing examiner’s decision ... issued on April 13, 2006, and as thereafter modified, is reversed,” Uhrig said in last week’s final decision.

Among other factors, Uhrig noted that the stop work orders were issued under the authority of Blaine Municipal Code (BMC) 17.07, but that the ordinance “had no express authority for enforcement at the time the stop work orders were issued.”

BMC 13.01 also deals with stormwater runoff and has enforcement provisions but that ordinance was not cited by the city in issuing the order, Uhrig found, hence the “stop work order was without authority.”

Douglas, at the time the ruling was issued verbally from the bench in late March, said that “We’ve hit a home run.” He said he felt vindicated by Uhrig’s ruling even though the project was completed last year.

Uhrig sympathized with Blaine city officials, saying that “The employees of the City of Blaine worked hard and tried to act professionally...it seems from a review of the transcript that sometimes at some points Mr. Douglas had the city and staff at wit’s end because of the number of faxes and e-mails and communications.

“There seemed to have been nothing subtle about Mr. Douglas’ approach to this project...But I believe he acted within his rights, though city officials may have been exasperated.”

Uhrig drew the line, however, at the suggestion that Douglas had somehow “cajoled” city staff into bending to his wishes. “...the city was not required to do anything but follow the law....grant or deny his applications. They were not required to back down if they thought that he was trying to cajole them. He was persistent and perhaps aggravating, but I have to express my disagreement with the use of the term cajoled.”

“I can tell you that the city did make one important mistake in this situation,” said Blaine city manager Gary Tomsic. “The mistake was that, in order to help Mr. Douglas keep his project moving ahead, we allowed him to proceed before all of the necessary submittals and permits were secured.  We were trying to be helpful. We will not make that mistake again.”

Uhrig went on to talk about vested rights, such as when someone is issued a building permit, “...that citizen should have certainly reasonable expectations of what he or she can do, of what action he or she can take or else the permit is in my mind fairly meaningless and the city has accepted the citizen’s fees and the citizen has received nothing.”

In concluding that the stop work order as served by Blaine on Douglas was issued without the legal authority to do so, Uhrig said “I am not suggesting that the city acted in bad faith.

“It may have been a simple error, but that error does not seem to be corrected when the city had every opportunity to do so.”