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WHATCOM COUNTY COUNCIL
Public Works and Capital Projects Committee
March 23, 1999
The meeting was called to order at 1:30 p.m. by Committee Chair Barbara Brenner in the
Council Chambers, 311 Grand Avenue, Bellingham, Washington.
Also Present: Absent:
Ward Nelson None
Tom Brown
COMMITTEE DISCUSSION
1. DISCUSSION REGARDING PROPOSED RESOLUTION CLARIFYING SHERIFF'S
JURISDICTION (AB99 -111)
Brenner stated that this was brought forward by Ben Hinkle
Ben Hinckle, 2582 North Shore Road, stated that he provided a packet of material to the
Council in the past. Since then he has collected more material. (Handouts on file.) The subject
is the Doctrine of the Interposition, which is where the local elected officials will stand between
aggressive federal agency activities and the citizen. He read his statement into the record (on
file).
Brenner stated that Hinkle's presentation is based on opinion. He has not presented any
proof. She wanted to address the proposed resolution. She met with Dale Brandland, County
Sheriff, who did not believe that any federal agent should have to get local clearance from the
Sheriff to do what is federally in his power.
Dan Gibson, Senior Civil Deputy Prosecutor, stated that he would provide opinion based
on constitutional analysis, not on an agreement or disagreement with the situation. The Doctrine
of Interposition says that States can interpose themselves when they believe the federal
government is acting unconstitutionally. Under the federal system, the States have reserve
powers and the federal government has enumerated powers. The County has delegated power
granted by the State and does not possess the power to interpose. Governor Locke has stated that
this case is a federal issue and out of his jurisdiction. He is the person in the position to make the
judgement of interposition.
Brenner asked about the Posse Comitatus act. Hinkle stated that the act is a law passed
by Congress saying that federal troops cannot be used for local police action. There is a group
that named themselves that for identification, but it is separated from the act.
Brenner stated that she would like more information on that. Gibson stated that they are
talking about the Doctrine of Imposition, which does not grant power to the County, only the
State.
Public Works and Capital Projects Committee, 3/23/99, Page 1
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Hoag questioned where the doctrine is stated. Gibson stated that it is from a case in
Georgia. Litigation on this doctrine is rare and goes back two centuries.
Hoag stated that the doctrine doesn't specifically define states, only "smaller" authorities.
Gibson stated that the constitution makes it clear that the State is the institution that grants
authority to the Federal and delegates authority to a smaller municipality, such as a County or
City.
Hinkle stated that the State is represented by Governor Locke. President Clinton issued
Executive Order #13083, for the purpose of abolishing the strength of the tenth amendment,
which provides that powers not given to the federal government by the constitution are reserved
to the states and the people. The Governor stated that this is a federal matter.
Brenner stated that is a decision that the State has made. It is up to the State's decision
whether or not the State will take the authority or leave the authority to the federal government.
She talked to the Sheriff and couldn't imagine why the Sheriff wouldn't want all the authority he
can get. He has said that the federal government doesn't need his permission to do federally
mandated actions in Whatcom County.
Hinkle disagreed. Other sheriffs have not allowed the federal government in their
county.
Brenner asked if the other sheriffs were in Washington State. Hinkle stated that they
were not in Washington State.
Brenner stated that she could not compare whether or not the other states have delegated
their authority.
Dawson stated that that citizens need to check the stance of a candidate who runs for
Governor.
Hinkle stated that Congress is destroying the Constitution. They are passing laws and are
not objecting to the Executive Orders that are dismantling the Constitution. They are passing
laws that violate the Constitution.
Brenner stated that everyone is trying to do the best they can. She didn't find any
information that she can do anything with. There is not one legal opinion from Washington State
that Whatcom County can enact the doctrine. That is what she needs. According to the
County's legal counsel, the states have the authority, not the County.
Hinkle stated that the citizens need to object to this happening.
Brenner stated that disagreement with Hinkle's opinion doesn't mean they are going to be
complacent.
Hoag stated that the resolution covers a lot of issues. She wanted to discuss the
Executive Order. She would like to take action on that one item and requested legal counsel
opinion.
2 Gibson stated that he was not aquainted with the particulars of that order. Executive
3 Orders are often used to circumvent the legislative process. It is within the Council purview to
4 make that decision. He was concerned that the Doctrine of Interposition should be taken
5 seriously in terms of its consequences, provocation of a Constitutional crisis. It should not be
6 done by a County government who has delegated powers.
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8 Hoag stated that this Executive Order wiped out the tenth amendment. She requested
9 Counsel research it and provide a legal opinion.
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11 Sutter requested Hinkle's sources of information. Hinkle stated that he has copies of
12 books.
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14 She questioned the authority of the authors. Every one of the books are not necessarily
15 factual. Also, she questioned what he proposed as resolution to the problems he perceived. She
16 believed that the people's relief is to vote better people into the office.
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18 Dawson stated that there has been a lot of compromising over the years. A lot of people
19 are probably uninformed about their Constitution. Congressman Jack Metcalf will be making a
20 proposal at the federal level to address some of the Executive Orders. Whatcom County can
21 write a letter to the Governor which expresses the County's concern and desire that he provide
22 his input and concern at the federal level.
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24 Brenner stated that they were discussing a resolution, which has no force of law.
25 However, according to the County Sheriff and County legal counsel, Whatcom County doesn't
26 have this authority. The Sheriff will not take action in the resolution. The municipalities are
27 created by the State of Washington. She requested information about whether the State has
28 delegated its authority in the Doctrine of Interposition to the municipalities.
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30 Hinkle explained he tries to correct problems that he sees in the country. He wrote the
31 resolution knowing it would come under criticism. The resolution is a draft. He hoped the
32 County Council could help draw up a document that would be agreeable.
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34 Brenner stated that she did not want the federal or State government to be overbearing on
35 the County. She would support a resolution to the State that the local rights be respected.
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37 She questioned whether Hinkle would accept a resolution that did not contain the
38 statement, "Therefore, Whatcom County Council resolves that federal agents shall take no action
39 against a citizen of Whatcom County without clearing such action with the duly elected County
40 Sheriff." Hinkle stated that he would accept removing that language.
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42 Dawson stated that federal legislators usually throw out these types of resolutions. They
43 are more impressed with very specific letters. She drafted a letter that stated that the County
44 Council does not support President Clinton's Executive Order.
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46 Brenner stated that she wanted to hold this discussion in committee for review of
47 Dawson's suggestion and for more information from legal counsel.
Public Works and Capital Projects Committee, 3/23/99, Page 3
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Brenner moved to hold in committee.
Barry Bowen, 6168 Evergreen Way, Ferndale, stated that he was stunned about the
amount of time devoted to this conversation. This is one example of time not well spent. If a
federal, state, or local law enforcement officer commits entrapment, then there is legal recourse.
If an executive order is an unconstitutional order, it can be struck down. This Executive Order
was suspended and was never enacted. If the County Council wants to devote time to saying
people should not do bad things, then they can do that succinctly. He questioned whether any
group can have a resolution considered by the County Council.
Brenner stated that generally any resolution can be considered. Everyone in the
community has a right to have their say. Council time is not used. It is one of the most
important parts of what the County Council Public Works Committee does.
Bowen stated that there are other forums to do that. This was not time well spent.
Nelson stated that he takes various citizen concerns seriously. If people talk issues
through instead of hiding in the sand, the country will not come to demise.
Brenner agreed. It is an elitist attitude that anyone's issue is more or less important than
another's issue.
Hoag stated that there are a number of items that she did not agree to or support and that
even didn't get brought up in the committee because they did not merit discussion. However,
those who will not learn from history are doomed to repeat it.
(Clerk's Note: End of tape one, side A.)
Hoag stated that at some point the country will be facing war and tyranny, and the only
way to maintain citizen rights is to guard them carefully. A large number of citizens contacted
her about the Executive Order.
(Clerk's note: There was no vote on the motion, but there was committee consensus)
OTHER BUSINESS
Discussion regarding complaint filed by citizen Dickinson (AB98 -180)
Dave Wareing, Deputy Administrator, stated this item came before the County Council a
little over a year ago. He met with the Dickinsons and viewed their property. They have been
working on this process for ten years. The Executive is involved because of the allegations of
perjured testimony of Lee Carter of the Public Works Engineering Division. They have no
power to set aside the decision of the court. He has talked with the Dickinsons, the Engineering
Division, and the Land Use Division of Planning and Development Services.
David Dickinson, 4100 Legoe Bay Road, Lummi Island, gave background on the issue.
In 1991, the court ordered the property be short- platted, because it protects each piece of
I property equally. The court said that the plat rules that were soon to be adopted were the rules
2 under which the plat would be done. This included a road, built to County road plat
3 specifications, to their lot, which is the western most lot. Prior to this, was a notice of
4 provisional short-plat approval signed by Larry Stoner. At the bottom of the notice, Stoner
5 specified the road standards. This was prior to the court decision, but it reflects what the court
6 said. On June 24, 1991, there was a technical committee review where both attorneys were
7 present, as well as County staff and lot owner Blampied, who chose to become the road
8 contractor. Two days later, the technical review issued an addendum to their notice. The end of
9 the road was to be at their property line on the southeast corner of the lot. A bid was submitted
10 to build the road to those specifications, which include a fire truck turnaround at the end of the
11 road. The other two lot owners decided that they would become the contractors instead. They
12 were not licensed or bonded. They hired subcontractors and worked for over a year. They
13 completed the road to the boundary between lots 2 and 3, then stopped. There was no more road.
14 Therefore, he refused to pay because the plat was not current, there was no drilled well on lot 2
15 as the court had mandated, and also because the last 400 feet of road doesn't exist. During the
16 only inspection done on the road, Blampied said that no ditches were needed. No ditches were
17 built. It is mud. The other owners took him into court because he refused to pay his share. Lee
18 Carter from the County Engineers office swore under oath that he had approved that road to
19 County specifications. However, the only road specifications were those laid down by the
20 technical review committee. They were ordered to pay for a bid that the other lot owners
21 submitted, which came to only a few dollars less than the bid by the licensed contractor. The
22 turnaround for the fire truck, which was mandated to be at the southeast corner of his lot, is now
23 at the southeast corner of lot 2. He contended that if Carter got in front of the court and said that
24 the road was not built to county specifications, then the court would have forced the contractors
25 to finish the road. The licensed contractor depended on payment by constructing a road. The
26 other lot owners got their payment by not constructing a road. On the basis of testimony, he was
27 ordered to pay, which he did.
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29 Brown stated that he remembered this from last year.
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31 Colleen Dickinson, 4100 Legoe Bay Road, Lummi Island, stated that the technical sign -
32 off sheet by the committee stated that 30 feet was done to County standards. The road is not
33 built to County standards beyond lot 1.
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35 Wareing showed photographs that were taken in January of 1998.
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37 Brenner questioned how long the turnaround is legally supposed to be. Wareing stated
38 that it must have a 45 -foot turning radius.
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40 Dickinson stated that flooding occurred to the east. The road coming into lot 3 is over
41 built. It is 30 feet wide, and was only mandated to be 16 feet wide. They did not understand
42 what was going on until the person owning lot 3 applied for a long -plat. The stratum is
43 sandstone. To channel the water and make it dry enough to perc, he made a lake in a neighbor's
44 pasture.
45
Public Works and Capital Projects Committee, 3/23/99, Page 5
I Brenner stated that this has always looked like a mistake. She questioned the purpose of
2 bringing this before the committee and whether the County could be sued if they don't correct
3 this situation.
4
5 Dickinson stated that he doesn't know where to go next.
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7 Brenner questioned the cost to complete the road. Wareing stated that is not a question to
8 be answered at this time.
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10 Wareing showed photographs taken of the road in 1993. Wareing, David Dickinson, and
11 Colleen Dickinson explained the location of the photographs.
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13 Roland Middleton, Planning and Development Services Land Use Manager, stated that
14 this issue began in 1984. The Development Standards were in their infancy. The original notice
15 of application required that the turn around be constructed at the corner of lot 1 and 2.
16 Originally, the technical committee required that the turnaround be constructed at this point.
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18 Brenner questioned whether the Dickinsons would be here now if that had happened.
19 Middleton stated they would not.
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21 Middleton continued to state that in 1992 or 1993 there was a complaint regarding the
22 section of the Development Standards regarding the potential number of lots to be served by a
23 road. This is the whole issue. What the Dickinsons bid for and purchased is a road going all of
24 the way to their property. However, the Development Standards stop at two users and the
25 property line to the last lot. Even though the technical committee made a recommendation that
26 the road be constructed to lot 1, the law only gives the County the right to require a road to the
27 boundary between lots 2 and 3.
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29 Brenner questioned whether Dickinson made his decision based on the original
30 recommendation of the County. Middleton stated that he imagined Dickinson made his decision
31 based on whatever he had worked out with the road contractor and his partners. Mr. Carter did
32 not perjure himself. He said that it was reviewed and inspected to the Whatcom County
33 Development Standards, which was correct.
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35 Dickinson stated that the road was mandated by a Superior Court order. At the technical
36 committee review, both attorneys and County staff was in attendance. Out of this review, a
37 recommendation was made that reflected the court order, which went to engineering. The other
38 lot owners collected the bid. He did not. The other lot owners decided to do the work
39 themselves. The Development Standards did not apply on this road because of the court order.
40 The bids were drawn to the specifications ordered by the court order.
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42 Middleton stated that they were not operating under a court order at that time. They were
43 operating from the technical review committee meeting. On that report, it was questioned
44 whether the road should be built to lot 1 or lot 2. Jerry Mixon and Ed Henken did not make the
45 decision. John Tyler made the decision. The County staff reviewed that section of the
46 Development Standards, which states that they do not have the authority to require the people to
47 build through to the last lot. It was a driveway and would have been done under the Uniform
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Fire Code. Nothing has required the road to be built to the last lot. There was no court order
stating that they need to build the driveway to the road standards.
Colleen Dickinson stated that the Addendum A to the Notice of Technical Committee
Review by the Public Works Department reflected what was explained in the Technical
Committee Review. She questioned why the County ignored the decision to not build the road to
Lot 1.
Middleton stated that it was not a decision to ignore, but a decision made by Tyler, the
former director of the Public Works Department.
Colleen Dickinson questioned why the contractor was asked to bid on building a road to
the original specifications. Middleton stated that he did not hire the contractors. He assumed
that whey the lot owners hired them, they were under the agreement. Short plat roads are often
built beyond the turnaround and the driveways are built beyond that.
Brenner stated that it looked to her as if the Dickinsons were told that the road would
have to be improved all of the way to their lot. It appears that a mistake was made and they had
a legitimate reason to believe that it would be built to the original recommendation. She
questioned the amount it would cost to finish the road to the original recommendation.
Wareing stated that the Executive's involvement in the issue was only about whether Mr.
Carter perjured himself. Otherwise, there is no reason for the discussion.
that.
Brenner disagreed.
Wareing stated that if the County makes an error, then the County should stand behind
(Clerk's Note: End of tape one, side B.)
Wareing stated that he did not believe that Mr. Carter made an error.
Brenner stated that the total bill to finish the road is less than $6,000. Colleen Dickinson
clarified that amount was just to finish the surface and did not include a turnaround or ditches. It
is just to put in the necessary culvert to drain it.
Brown questioned when they received notification that the standards were not going to be
enforced all of the way. David Dickinson stated that they were never notified. The court order's
decision was reflected in the Technical Committee's recommendation. Both attorneys were
present at the Technical Committee meeting.
Colleen Dickinson stated that, when she went in to get a copy of the regulations, Mr.
Carter circled what was needed.
David Dickinson stated that Mr. Carter has legitimized a deliberate swindle. They paid
for what was to be.
Public Works and Capital Projects Committee, 3/23/99, Page 7
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Dawson stated that the County had the option to go to lot 1 or lot 2, and the County opted
for lot 2. It doesn't seem logical when doing a short plat that it should stop there. She wanted to
see where this has occurred on other short plats.
Colleen Dickinson stated that, when they went to trial, they had to pay for it as if it was
completed and they could drive on it. Mr. Carter's testimony was that he could drive on it. She
has a difficult time driving on mud. They have a road maintenance agreement signed prior to the
road being finished, but they were court- ordered to sign the agreement. Any of the property
owners can call for road maintenance, which would automatically put a lien on the other two
property owners. There is no limit to the amount of money on the lien. That was also part of the
court rulings. That road maintenance agreement is in effect today. She questioned how there
can be a road maintenance agreement when the original construction has not been done.
Wareing stated that inappropriate things have occurred toward the Dickinsons by one of
the other lot owners. The Dickinsons were treated unfairly, but not by Mr. Carter. He looked at
the road according to the standards at the time. There are other issues here.
Brenner stated that she wanted to hold this item in committee.
Committee members concurred.
ADJOURN
The meeting adjourned at 3:15 p.m.
Jill Nixon, Minutes Transcription
ATTEST:
Dana Brown- Davis, Council Clerk
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Barbara Brenner, Committee Chair