Eminent domain abuse in wetlands case in WA
Zing: Wetlands Expert Sees Huge Flaw In Eminent Domain Case
December 11, 2013
Watchdog Wire.com
By Benjamin Nanke
Watchdog Wire reported back in November that Snohomish County, Washington seized a woman’s property through eminent domain and then sued her to get the money back, leaving Kay Kohler without her land and her compensation for it. Now, Ed Kilduff, a hydrogeologist and expert in wetlands within the state of Washington, has noticed a problem with the wetlands designation the county used to justify their actions. He talked about what the county is doing wrong in an interview with Watchdog Wire.
Kilduff stated that wetland designations are determined by the 1987 Corp of Engineers Manual, however any wetland designation is technically legal until it is challenged. Kilduf alleges that the wetland designation of Kay Kohler’s Snohomish County property was incorrect, citing that the land had never been designated as a wetland in any journal or map of the area and shows no traits of a wetland. However, due to the legal issues, the designation stands.
This, however, poses a significant issue for Snohomish County due to their decision on how to use the land seized by eminent domain.
“There are different types of water,” Kilduff explains, “it’s not all the same water.” Virgin water, or receiving water, is the natural water running in streams. Waste water is any water that flows into the receiving water from an outside source. Snohomish County has transformed Kay Kohler’s seized farmland into a storm water runoff reservoir. Storm water is not considered virgin water, but instead falls under the designation of waste water. Therefore, it can’t be considered receiving water. However, a wetland is considered receiving water.
As the law stands, construction on wetlands is considered illegal. However, the larger issue for Snohomish County lies in the realm of water pollution under the Clean Water Act. Kilduff asserts that Snohomish County paid for the land and then, between the payment to Kay Kohler and the completion of the construction project, reassessed the land as a wetland, challenged the initial cost in a court of law and, Kilduff says, “got a very good deal because of it.”
With the designation of wetland, Snohomish County has violated their permit by dumping waste water into a wetland. “If you take them at their word, that it’s a wetland” Kilduff said, “and then see that they have violated a wetland and filled in a wetland, according to the standard set there would be fine for excavating and working in a wetland that would look something like $10,000 a day.”
Dumping waste water, including storm water, into a wetland is, as Kilduff puts it, a “no go.”
Kilduff says Snohomish County has created a big problem by trying to get a good deal on the property. “They’ve decided that it is a wetland, but then want for it to be a wetland only when they want to get a good price, but not when they’re building stuff on it.”
While Kilduff still doesn’t believe the land is a wetland, he asserted that Snohomish County does, and they need to live within the restrictions. He encourages that citizens put pressure on them, force them to be subject to fines and penalties that citizens are subject to under the Clean Water Act.
While it probably won’t get Kay Kohler her property back, it draws light to the situation and ensures that the county can’t walk away with a good deal in a mess of fraud and abuse.
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Link to article here.
WA: Snohomish County Uses Eminent Domain, Keeps Property And Payment
By Benjamin Nanke
November 6, 2013
Watchdog Wire.com
Following the vein of waste, fraud, and abuse, Watchdog Wire has discovered the story of a woman in Snohomish County who, after an eminent domain agreement beginning in 2008, was subsequently relieved of both her property and, after a lawsuit filed against her, the money intended to compensate her for it.
Our story begins with Kay Kohler and her family’s farm. Kohler inherited the farm, which had been in her family since the 1930′s, and was a largely undeveloped plot of four and a half acres in the midst of increasing development projects within Snohomish County. Despite Kohler and her family attempting to receive the permits to develop the land, the requests were rejected by the county.
It was 2008 when Snohomish County contacted Kay Kohler and informed her of a road expansion in the works and their need to use some of her property. The county determined that the value of the land totaled at $404,000 and offered this amount of money to Kohler in exchange for the land. Kohler accepted, and signed a Possession and Use Agreement to seal the deal. This agreement is important, and we’ll touch on exactly why in a moment. However, for the time being, the agreement proceeded as many other eminent domain agreements do.
It was only when Snohomish County approached Kay Kohler a few months later, demanding the money to be returned, that the situation went awry. The county’s justification for this action was that the land had been inaccurately assessed – Snohomish County claimed that Kohler’s land was actually a wetland, and significantly dropped the land value accordingly. However, Ed Kilduff, a licensed hydrogeologist who frequently deals with wetland designations in the state of Washington, asserts that Kohler’s land has never been considered a wetland, and shows no indication of being a wetland.
“If you look at US Fish and Wildlife maps, the National Wetland Inventory, it’s not shown as a wetland on those maps,” Kilduff says, “so it’s never been a wetland, but they’ve identified it as a wetland and devalued it and gotten a good deal as a result.”
The county’s assessment comes out of the blue.
Snohomish County subsequently filed a lawsuit against Kay Kohler to secure the return of the money paid in compensation for seizure of the property. The county was successful in this suit, with Kohler’s appeal unsuccessful, leaving her required to return most of the money paid in compensation, as well as forfeit her land. The county has since bulldozed most of the property, installing a storm water runoff and retention pond and diverting a large amount of storm water onto the property.
Kohler, on the other hand, has been left both without her land and the supposedly agreed upon $404,000 to her name. With legal fees piled on top of that, and no property to serve as her retirement, Kohler doesn’t know what to do.
“At the end of the day,” she says, “it’s your future that they’re really messing up.”
The key point in this story is the Possession and Use Agreement that Kohler signed with Snohomish County. The document, which Kohler trusted in and signed without legal counsel, established that the “just compensation” for the property would be decided at a later date, and included no further specification or protection for the citizen involved in the agreement. This document allowed Snohomish County to renegotiate the terms of the agreement – and the value of the property – at a later date, permitting them to retract the initially agreed upon compensation.
The lesson to be learned from this story is that legally binding documents from local governments are not to be trusted. It is unknown whether other Washington counties have used this Possession and Use Agreement to pull the same trick on other landowners in similar eminent domain cases, but WatchdogWire advises that any citizen faced with one of these agreements, or any legal document presented by a local government for that matter, be extremely skeptical and consult qualified legal counsel regarding the matter before signing or taking any action.
The Freedom Foundation in Washington State is responsible for uncovering this clear case of government waste, fraud, and abuse, and has produced a video highlighting the details of the case in their Tales of Tyranny series. WatchdogWire will give you updates as we dig further into this case and the nature of Possession and Use Agreements.