Developer says District 19 treated him unfairly

A developer angling to build a motel at Vashon Village contends he was treated unfairly by an Island-based commission that used inconsistent policies and an anti-growth agenda to determine who could get access to coveted water in Vashon town.

In the first documents filed with King County Superior Court since Dan McClary sued King County Water District 19 in June 2007, a lawyer for the Federal Way developer paints a picture of a three-member commission that played favorites, violated its own policies and used an anti-growth philosophy to spike McClary’s efforts.

According to a brief filed by McClary’s lawyer, Aaron Laing, the three publicly elected commissioners “busied themselves trying to find a basis to deny the request” as soon as McClary sought the so-called “certificate of water availability” he needed to proceed on his development plans for a motel.

McClary, Laing added, was “singled out ... for unfair treatment.”

Frank Jackson, who chairs the water district’s commission, said Laing’s allegations are unfounded and that evidence disputing his contentions will be offered up when District 19’s lawyer files his response to Laing’s brief.

“We dispute many things — many, many things that are in those allegations,” Jackson said, adding, “It’s not about growth. It’s about water. We’re out of water.”

Steve Haworth, another commissioner, said the commission would have tried to work with McClary to resolve the dispute but that he handed the district a letter noting his intent to sue the same night that he sought the water certificate.

“When you have a lawsuit hanging over your head, it makes give and take difficult,” Haworth said.

The documents filed in court last Friday — totaling more than 500 pages — represent the first salvo in what could be a bitter and drawn-out battle over water and its availability in Vashon town, one of the most contentious issues on the Island. Though settlement efforts have been attempted, McClary’s suit against District 19 is currently slated for trial on Nov. 3.

The dispute has already put the three commissioners, all volunteers with deep roots on the Island, into the spotlight, and, should it head to court, it will likely draw many other well-known Islanders into the fray. Already, several Islanders have been interviewed under oath by McClary’s lawyer, including former commissioners Dean Katz and Joe Green, former District 19 manager Margaret Cruse and a handful of Islanders who have been advocates for water conservation, including Michael Laurie, Martin Koenig and Steve Abel.

In an interview last week, Laing also suggested the suit could end up costing the small water district a considerable sum of money, should it lose the case. McClary is seeking damages of up to $1.2 million. Laing said that because he will allege the district was negligent in its failure to issue McClary a water certificate, it’s possible the district’s insurance policy would not cover a judgement against it.

“There’s significant risk, should we prevail, that the loss will be borne by the district itself and thus the ratepayers rather than the insurance company,” Laing said.

Blair Burroughs, the district’s lawyer, hired to handle the case by the district’s insurance pool, declined to respond to Laing’s statements. “I’m not going to try my case in the press,” he said.

But he added that insurance should cover any judgments against the district, were it to lose.

“The district is insured,” he said.

District 19, which serves 3,300 customers in a service area that extends as far north as S.W. 165th Street and as far south as northern Maury Island, has been struggling for years with what the commissioners say is an inadequate water supply. Fourteen years ago, the district — facing the high costs of well development as well as the high costs of repairing wells that had failed — put a moratorium on new water shares. It now has two operating wells and a waiting list of more than 100 people seeking, all told, around 300 shares of water.

McClary’s dispute with the district, however, centers on a different element of water policy. McClary, owner of Vashon Village, already has water shares to serve his development — he currently has eight shares, or meters, serving the eight buildings that comprise his small business center across the street from Ober Park.

When he approached the water district in June 2006, he asked the district to reconfigure his shares, putting eight structures onto one share or meter, freeing up seven other shares for his proposed inn.

There was already precedent for such an approach, McClary said at the time, pointing out that Windermere had been given two shares to serve the construction of four new buildings. What’s more, he argued, those eight buildings — all offices or retail spaces — use very little water, far beneath the 800 gallons per day the district estimates as the average peak use per water share.

But the commissioners, in an October 2006 letter to McClary, said his request that the district reshuffle his water shares was an attempt on his part to get around the moratorium. It also flew in the face of a long-established policy, commissioners said — that only one building could be on a meter or water share.

Windermere’s situation, the letter added, was “an inadvertent aberration, the repeat of which would be untenable.”

District 19 commissioners also said at the time that 800 gallons per day is a figure the district uses merely for planning purposes in an effort to ensure it has enough water to meet peak summertime demand. There’s “no ‘entitlement’ to 800 (gallons per day),” the district told McClary in its letter denying him his water certificate.

But Laing, in his 24-page brief supporting his request that the court issue a summary judgment ruling in McClary’s favor, took issue with the commissioners’ contention that they had a long-standing policy on the books mandating one water share for one building.

Citing testimony by Cruse, Katz, Green and others, Laing said no such policy existed prior to McClary’s request and that the practice instead was to allow more than one building to hook up to one share. Among the exhibits he filed to support the contention was an e-mail by Rosemary Shattuck, the water district’s office administrator at the time, to then-District 19 Manager Cruse — an e-mail suggesting the depth of the division among officials and employees at the small water district:

“Frank (Jackson) has put together a resolution for the commissioners to sign today stating that all commercial properties have one meter/unit per building. I e-mailed the commissioners and told them that since (McClary) was already in with his plans they cannot pass a resolution and try to make him abide to it after the fact,” Shattuck wrote in her June 2006 message to Cruse.

“I also pointed out the other projects that they have approved with more than one building. The resolution (Jackson) wrote states that the district does not have enough water to serve the current customers, so I told them that if that is the case, they need to declare District 19 a failing district or find a new water source to serve the current customers.”

What’s more, Laing added, Haworth, looking for a way to spike McClary’s request, sent e-mails to “anti-growth advisors to solicit advice and even held private meetings at his home to discuss the request.”

But Jackson said Laing is wrong to state no policy mandating only one unit per share existed prior to McClary’s request. Indeed, in the letter to McClary denying him the rearrangement of shares that he sought, the three commissioners site “Resolution 425,” which was adopted in October 1980 and which allows only one unit per share.

Jackson sought a second resolution after McClary’s request because, he said, “there was a need to just explicitly reiterate the importance of that piece of Resolution 425.”

McClary’s request, he added, “was unusual. ... And the ramifications for the entire district were large; if everybody who had one unit wanted to expand it the way he had we could never meet that capacity.”

As for Haworth’s decision to meet with Islanders about McClary’s proposal, he said he occasionally turned to a wide range of Islanders to understand what was best for District 19’s more than 3,000 customers, noting that discussing issues with constituents is at the heart of the democratic process.

What’s more, some of the people he met with to discuss McClary’s request hardly fit the anti-growth label, Haworth said.

“I reject categorically that I sought anti-growth opinions from anti-growth people. That’s a slur on the council if not on them,” he said.

The suit, Haworth added, is weighing heavily on him and the other commissioners, all of whom have spent hundreds of hours of their own time working to comply with what he called Laing’s “massive requests” for documents, personal e-mails and other information.

“It’s been very stressful,” said Haworth, who used to work as a vice president and spokesman for CNN. “I’ve been involved in high-stakes situations before. This is different. This has been personally stressful.”

Haworth, like Jackson, said the water district has a strong case and that he’s confident the agency will prevail. But he’s frustrated that the case has diverted his attention from what he said are far more pressing matters, such as establishing stronger water conservation incentives and programs that could free up the resource and in turn enable the commission to issue shares to some of the many people on the district’s waiting list.

“That’s what I wish I’d been able to spend hundreds of hours on,” Haworth said.

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