by Kurt Denke
To celebrate 25 years of publishing Whatcom Watch, we will be printing excerpts from 20 years ago. The below excerpts are from the August 1996 issue of Whatcom Watch.
On June 17, 1996, Judge William L. Dwyer of the United States District Court ruled in favor of Deming resident Philip Marble and against Whatcom County. The decision established that Whatcom County’s procedures governing stop work orders are unconstitutional. While Whatcom County issues stop work orders which are in some case not appealable, and in other cases reviewable only after issuance, Judge Dwyer has ruled that under the Due Process clause of the Fourteenth Amendment, Whatcom County must provide citizens a hearing before stop work orders are issued. ….
Regular readers of the Whatcom Watch will recall the March 1995 front-page article, “Whatcom County Illegally Took My Property for a Floodway Channel,” by Phillip Marble. In that article, Marble detailed a dispute with Whatcom County over restoration of flood damage which had led to Marble’s nursery, Madronamai, being nearly driven out of business by demands placed upon him by Whatcom County’s engineering department. ….
After beginning to fill and grade his property to restore flood damage in accordance with a county-issued permit exemption, Marble was issued a stop work order by Whatcom County on September 9, 1993, for reasons which remain somewhat mysterious. Whatcom County never was able to articulate the reasons for the stop work order to any coherent way, nor would it define for Marble just what he had done wrong or what he must do in order to have the order lifted.
The fundamental right to due process of law, embodied in the Fourteenth Amendment to the U.S. Constitution, requires that before individuals are deprived by government of life, liberty, or property, they be given adequate notice of the proposed deprivation and an opportunity to be heard. In most circumstances, this calls for a hearing, just like a person accused of a crime, one who is about to have his interests harmed by government has the right to know the grounds for the government’s action, to present evidence in his favor, and to be heard by an impartial decision maker who will fairly weigh the evidence and decide whether the deprivation the government seeks to inflict is justified by facts. In Whatcom County, however, it is not at all clear whether, when, or to whom decisions made by county staff are appealable.
Phillip Marble Tried to Amicably Settle Dispute
Phillip Marble, after issuance of the stop work order in September 1993, did not rush to federal court. Instead, he did everything a responsible person should do, first to work out his dispute amicably with Whatcom County and then to seek review of the county’s decisions. He engaged in session after session of discussion and argument with county engineering and Building and Code staff, in efforts to ascertain just what he was alleged to have done wrong and what he would be required to do to remedy it. The answer — which Whatcom County took months to articulate — was utterly bizarre. Whatcom County engineers claimed that Marble’s property had historically been the site of a massive, 200-foot wide, 6-foot deep “overflow floodway” channel alongside the Nooksack River, and that Marble, in restoring his property to pre flood conditions, was “obstructing” this channel. The county claimed to have evidence of the existence of this channel, but ultimately was unable to produce any. No such structure was visible on the county’s own maps of the area which it had relied upon, in other cases, to establish pre-flood conditions, nor did it appear on any aerial photograph ever taken of the property.
Philip Marble was just trying to run a nursery, trying to restore his land, trying to deal with these outrageous demands, and every day he awakened to the fact that his farm was devastated by this huge, dangerous flood scour, and that the county would not let him repair the damage. The experience of being treated arbitrarily was wearing Phillip Marble down at a time when he needed to be focused on his business and needed to put all of his energy into growing and selling plants.
Hearing Examiner Dismissed Stop Work Appeal
Marble hired an engineer recommended by Whatcom County, Craig Parkinson of David Evans Associates. Parkinson rendered a report demonstrating conclusively that the channel had never existed; this had little impact on county staff, and so Marble’s only choice was to try to appeal the county’s decisions. This was, however, to end in frustrations.
Marble’s attorney, Tim Carpenter, filed an appeal with the Whatcom County Hearing Examiner. Marble, Parkinson, and Carpenter prepared for a hearing, where they would seek to prove to the Hearing Examiner, Ed Good, that the county’s claims were baseless. On the day of the hearing, however, Ed Good announced that he was of the opinion that he had no jurisdiction to review a stop work order and that the appeal should be dismissed. The appeal ended with no hearing on the merits; there was no entity in Whatcom County from whom Marble could get a fair hearing on the county’s outrageous claims. After the hearing, in violation of the hearing examiner’s rules prohibiting ex parte conversations relating to pending matters, Good held a private conversation with John Matzinger of the county engineering department; without Marble, his engineer or his attorney present, Good and Matzinger talked about why appeals from stop work orders should not be allowed. (Editor’s Note: This conversation is part of the official recording of the hearing.)
Some while after this hearing, and after another attempt to obtain relief from the stop work order by suing Whatcom County for injunctive relief failed, I took on Phillip Marble’s representation. ….
County Contends Stop Work Appeals Not Required
We filed suit in U.S. District Court in March of 1995, seeking damages for the deprivation of property without due process of law. Discovery in this case, including the depositions of numerous county employees, demonstrated that indeed there was no path of appeal from the stop work order which had been issued to Marble. At first, the county took the position that it was not required to allow appeals from stop work orders. That policy had effectively given administrative officials carte blanche authority to issue orders for any reason or for no reason at all, and to make all manner of unreasonable demands, legal or illegal. The only choice a victim of such an order had was to meet staff’s demands or to remain forever hogtied by the stop work order.
When the county became aware that such a policy would not pass constitutional must, suddenly its position changed. Now, according to the county, Marble had the right to appeal to the “Whatcom County Board of Appeals,” a body which hears disputes under the Uniform Building Code. This was at best a thin cover story for the county’s policy of refusing such appeals, and we exposed it as such at trial. I retained an investigator to go to Whatcom County and attempt to appeal a stop work order to the Board of Appeals. He was met by resistance at every step of the process; he was told stop work orders could not be appealed; he could not locate the board of appeals; he could not obtain the form on which the appeal was to be taken; he could not identify the clerk of the board, with whom the appeal was to be filed. Even had he cleared each one of those hurdles, there was yet another: the elusive Board of Appeals had no jurisdiction over the flood ordinance, which the county contended Marble had violated. …
Phillip Marble was told, again and again, that because his actions could direct flood waters onto the property of others, he could take no action without permits and engineering studies; yet, when Marble’s next-door neighbor, Dale Lee, wanted to aim a pair of culverts right into the flood scour, pointing a dangerous high-velocity source of floodwaters right down the axis of Marble’s farm, he didn’t need engineering studies or permits of any kind. All he needed, as he testified at trial, was a letter from Ed Henken commenting that the culverts seemed like a good idea. Should anyone have to live in a county where the law is administered or not administered on the basis of winks and handshakes? …
Kurt Denke was Phillip Marble’sattorney in 1995-1996.
Editor’s Note: Whatcom County Code 15.04.050 was amended. It now reads: In a non-emergency situation, the stop work order will require work to halt within 10 calendar days following the receipt of the notice, and pfrovides for an administrative pre-deprivation hearing within 10 calendar days o notice/order. In an emergency situation, the stop work order shall include, in writing, the right to request an administrative post-deprivation hearing within 72 hours following receipt of the stop work order.