Mason County officials accused of illegal actions related to proposed gravel mine
by Christopher Dunagan
Belfair, WA (7-3-20) —
In a class-action lawsuit filed against Mason County, a dozen North Mason property owners claim that County Commissioner Randy Neatherlin and other county officials illegally benefitted a private gravel company in violation of county zoning laws.
“On June 30, 2017, Mason County and the named individual defendants gifted a private company, Grump Ventures, LLC, with a valuable right to operate a 66.5-acre surface mine in a residential zone where mining is prohibited,” the lawsuit alleges.
The civil-rights case, filed Monday in U.S. District Court, goes on to say that Neatherlin tried to cover up the “unlawful and unconstitutional” acts by “hiding” county documents at his house.
A lawsuit demanding the missing records led to a $30,000 settlement, with a payment from Mason County government going to North Mason resident Brad Carey, who filed a separate lawsuit under the state’s Open Public Records Act.
In a telephone interview, Neatherlin said he couldn’t talk about the substance of the case until after he discusses the matter with legal advisers. Tim Whitehead, chief deputy prosecutor for Mason County, said he plans to meet with Neatherlin and others next week.
Neatherlin, who is running for his third term as county commissioner, said he had been working hard to “put the pieces together” and find a way to make the gravel mine work for everyone, including residents of the area. “I help everybody,” he said. “If people ask for my help, I give it.”
The lawsuit filed Monday asks the court to vacate the county’s improper endorsement of the 66.5-acre gravel mine being planned on a hillside above Hood Canal, some 4.5 miles from Belfair on North Shore Road.
The county’s approval of the gravel operation was expressed in “Form SM-6,” a document signed by David Windom, director of Mason County Community Services. His signature came as a result of improper pressure from Neatherlin, according to the lawsuit. The approval was then submitted to the Washington Department of Natural Resources, which must issue the permits needed for surface-mining operations.
This past January, the county rescinded its SM-6 approval, but Grump Ventures appealed the rescission to the county hearing examiner. A hearing on that appeal is pending. That’s why the property owners moved ahead with the class-action lawsuit on behalf of everyone who would be adversely affected by the gravel mine, said attorney Dave Bricklin, who filed the lawsuit.
Bruce Carter, one of the landowners bringing the case, said the lawsuit was the result of a “grassroots uprising” against the gravel pit and a county process that has been corrupted.
“The effects of the traffic with 100 dump trucks a day, water pollution, air pollution and noise would totally infringe on the lifestyle we have on the north side of the canal,” Carter said.
The SM-6 approval was needed to ensure that the project complied with county zoning laws. The application submitted by Grump Ventures and approved by Windom specified that 66.5-acres met the zoning regulations. That approval, however, went against the advice of county planner Michael MacSems, who had urged Windom in a memo not to sign “until the acreage is changed to 1.87 acres.”
Although the land is currently zoned residential, a gravel mine is allowed to continue as a “non-conforming use,” provided that it stays within its historical boundaries, according to MacSems, who calculated the historical area as 1.87 acres. He said larger parcels owned by Grump should not be counted as part of the original gravel mine area.
According to the lawsuit, Neatherlin not only pressured Windom to sign the SM-6 document but he also pressured MacSems to withdraw his written objection to the larger area. “Commissioner Neatherlin became a persistent advocate for Grump’s mining application, telling staff at least five times, “How do we get to yes?’ …,” the legal complaint says.
In support of the mining operation, Neatherlin provided the planners with an aerial photo taken in 1963 and given to him by Jack Johnson, another gravel mine operator who was assisting Grump with permitting issues. Grump and its registered agent Russell Scott were named in the lawsuit as other defendants (“necessary parties,” as described in the complaint).
Neatherlin reported to the planners that the aerial photo showed evidence of mining activity, according to the lawsuit, and Windom then signed off on the SM-6 approval. But area property owners insist that the photo shows no evidence of mining, only open areas caused by trees blown down during a windstorm — the historic “Columbus Day Storm” of 1962.
Johnson contends that the historical evidence supports the gravel mine operating on 25 acres of the Grump property, and legal doctrine supports the use of the full continuous 66.5 acres. Neatherlin, he said, is an “upstanding person” who was not trying to take sides but only to reach the right conclusion.
Filing the lawsuit so close to an election is clearly an effort to “assassinate Randy’s character,” Johnson said. “He is a good man, and he has done a lot for Belfair.”
After Form SM-6 was signed, Neatherlin allegedly took home the aerial photo and MacSems’ memo along with other documents. Thus county officials failed to produce all the records in the case when a formal request was made, leading to the $30,000 legal settlement paid by the county.
By granting the SM-6 approval for the 66.5-acre gravel mine in an area not zoned for such, the county essentially “gifted” a property right to Grump Ventures, the lawsuit says. Carter, one of plaintiffs, reported that Neatherlin told him that he was supporting the Grump application because Johnson asked him to support it, according to the pleadings.
In permitting issues, such as the Grump proposal, Neatherlin and the county commissioners do not play a direct role in decisions, since the issues are decided by planning staff and the county hearing examiner.
The lawsuit raises questions about Neatherlin’s relationship with Johnson and whether Neatherlin failed to meet an “appearance-of-fairness” standard when he visited Ireland with a group that included Johnson and others at a time when the SM-6 application was pending.
Brian Petersen, a Belfair chiropractor who helped organize the trip, said it was somewhat accidental that both Neatherlin and Johnson ended up joining Rob Drexler, co-owner of John L. Scott Realty in Belfair, and Drexler’s son-in-law Chad Harrison. Petersen said they had each heard about the “guys’ trip” and wanted to go to Ireland with the group. Neatherlin traveled separately. Petersen backed out of the trip when another chiropractor was unable to fill in at his practice.
Johnson also denied any impropriety in the trip. And he said he was surprised to see the lawsuit because there is so much more permitting left to be done by state agencies. Johnson said his company, Peninsula Topsoil, is interested in the sand and gravel that could be extracted on the Grump site, which is why he is assisting with the permitting.
Johnson stressed that when the permitting process — including an environmental review — is complete, the project will include mitigation measures to avoid the type of damage that appears to concern residents of the area.
The civil-rights complaint, filed in U.S. District Court in Tacoma, alleges that, as a result of actions by county officials, area property owners were “deprived of rights, privileges or immunities secured by the Constitution and federal laws” and “deprived of property rights without due process of law.”
Listed plaintiffs in the case are Dale and Barbara Brown, Brian and Wendy Comfort, Patrick Yates and Linda Hebish, Earl Iddings, Joel and Angie Kramer, Michael Kovar, Pat McCullough, and William Anspach. Others eligible for the class-action lawsuit are “several hundred property owners” who would be affected by the gravel mine or have had to spend money fighting the allegedly unlawful project.