District 19 works to manage water, not growth, legal documents say

A developer seeking to build a controversial motel and conference center is attempting to use a lawsuit to jump ahead of hundreds of people on a waiting list for coveted water hook-ups in Vashon town, lawyers for King County Water District 19 contend.

The water district’s lawyers also say the utility’s requirement that each business has its own water share is not an effort to control growth — as the developer alleges — but a commonly used strategy to manage water resources.

The arguments are contained in documents filed last week as part of a $1.2 million lawsuit in King County District Court, slated to go to trial in less than two weeks. Developer Dan McClary filed the lawsuit in June 2007 after the water district, which serves Vashon town, denied his request for a “certificate of water availability” — a precursor to obtaining building permits from King County. McClary wants to build a 24-room motel and 10,000-square-foot conference center at Vashon Village, the office park he owns across the street from Ober Park, according to the latest court documents filed by District 19 lawyers.

Both sides are seeking what’s called a partial summary judgment — an attempt to get the judge to rule on a variety of legal issues without a full trial. The two sides will meet before Judge Douglas McBroom on Friday, where they’ll argue over their dueling summary judgment motions.

Three weeks ago, McClary’s lawyer, Aaron Laing, filed more than 500 pages of court documents alleging, among other things, that District 19’s rejection of McClary’s request was part of a no-growth agenda, that district commissioners used inconsistent policies and that the Federal Way developer was being singled out for unfair treatment.

The latest documents represent District 19’s first substantive response to McClary. In them, lawyers paint a starkly different picture — one of a water district struggling with an inadequate supply of water and working to steward the Island’s scarce resources to ensure the more than 3,300 customers in the Island’s largest water district don’t find themselves without water on a hot summer day.

McClary has argued that his eight water shares — which currently serve eight buildings at Vashon Village — should be reconfigured; he wants the eight buildings to be put on one share, freeing up seven shares for his motel, which would use considerably more water.

But lawyers for the water district said McClary’s request flies in the face of not only District 19’s long-standing policy but common practice by other water purveyors across the country, most of which require one share, or meter, per building. They also refuted McClary’s suggestion that the commissioners are using a one-meter-per-building policy to squelch growth on Vashon.

“This is not a land-use control policy,” wrote Loren Dunn, a lawyer for District 19. “It is a water management control policy reflective of good stewardship.”

Dunn noted that by assigning one meter per building, District 19 can monitor leaks, help customers reduce consumption and follow up on late bills.

The district’s “one-meter-per-building policy is well within the standard in the industry and cannot in any way be seen as arbitrary and capricious,” he wrote.

Dunn also said the district has consistently held to the one-meter-per-building policy, which was first established by the three-member commission that oversees the water district in 1981. And while it’s true that the commission initially approved one water share for two buildings a few years ago for Windermere — an example McClary uses to show he was treated unfairly by the commission — the water district ultimately required Windermere to get two meters for its two buildings, Dunn wrote.

“The best direct evidence of the policy is the configuration of Vashon Village itself: It has eight buildings on eight meters,” Dunn added. “Why else would this have happened if that was not the policy of the district?”

What’s more, Dunn noted, if the district were to reconfigure the shares according to McClary’s request, an engineering study by one of the region’s top consultants shows the total water consumption at Vashon Village would exceed 800 gallons per day per share, the amount of water District 19 allows for planning purposes. All told, according to Martin Penhallegen, president of PACE, an engineering firm, Vashon Village — with a motel and conference center the size that McClary is proposing — would use at its peak more than 6,400 gallons of water per day — or more than what eight shares should allow.

District 19 has had a moratorium for new shares in place for more than a decade because of poor performing wells and the high costs of water extraction in its service area, and more than 100 people are on a waiting list for shares, should more water become available by way of conservation efforts or well development.

As a result, Dunn argued, McClary’s effort to reconfigure his water shares is really an attempt to secure more water.

“This would, in effect, permit Vashon Village to jump ahead of other property owners within (District 19) who are on the waiting list to receive connections and (water shares),” Dunn wrote.

Laing, McClary’s lawyer, took issue with many of Dunn’s contentions. In a telephone interview Monday, he said two other engineers, including one hired by the water district, found that Vashon Village would not use as much water as the PACE engineer suggests.

He also said Dunn and the water district are misconstruing terms by suggesting a water share and a water meter are one and the same thing. A meter is simply a physical object to measure water; one share, he said, could be divided among buildings by several meters.

“The lawsuit’s not about meters,” Laing said.

Both sides, meanwhile, continue to discuss a potential settlement in the case. Laing said he’s optimistic, noting, “The ball is in the district’s court.”

“I try to believe that people have a desire to look for a common ground,” Laing said. “I want to believe good things about the commissioners ... So I’m optimistic.”

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