June 11, 2001
King County caught withholding documents
by Jeanette Knutson
In principle, Kenmore residents Dan and Bonnie Olsen are not opposed to development. In fact, they're all for development ... of a reasonable size, said Dan.
But one day some three years ago, whilst sitting in traffic ‹ you know, the Kenmore 4 to 5 p.m. quagmire ‹ Dan started thinking about the additional 13,000-plus vehicle trips per day projected for the area if the proposed LakePointe development became a reality.
LakePointe, a 45-acre residential-commercial development planned for Kenmore, is slated to include 1,200 residential units, 400,000 square feet of retail and commercial space, 200,000 square feet of office space, 4,500 parking spaces, a 52-slip marina, an amphitheatre and trails.
Dan's notion of even worse traffic congestion in the future spurred his interest in how the county was handling the traffic aspect of the development.
He and his wife did what citizens can do. They became involved, attended meetings, had their say.
When on Jan. 13, 1999, Ronald J. Paananen, a King County road engineer, issued a letter deeming traffic standards at a certain Kenmore intersection "infeasible," but granted a special exception, in essence giving the go-ahead to the LakePointe project anyway, the Olsens were shocked.
On Jan. 22 they requested under the Public Disclosure Act that all documents used or considered in granting that special exception be handed over.
State Court of Appeals documents reveal the county handed over 13 documents ... but withheld one.
At first, the Olsens did not know that anything was withheld. It wasn't until November 1999 that Bonnie, while going through LakePointe files in Kenmore ‹ as public disclosure rules allow ‹ discovered a Jan. 6, 1999 memo with an attached document. The memo and document seemed odd to Bonnie. An attorney for the LakePointe development had written them. A red flag went up. Something wasn't right.
State Court of Appeals documents indicate that the withheld memo was set out in language nearly identical to the Jan. 13, 1999 letter of special exception. And it was written only seven days prior to the letter of exception.
The Olsens figured that it was from this Jan. 6, 1999 (withheld) memo that the Jan. 13, 1999 letter of special exception was drawn. This meant that King County used the developer's memo and attachment to draw up their reasons for allowing the exception. (The couple later learned their hunch was right. King County Senior Transportation Planner John Shively admitted to Dan Olsen that the county used the memo and attachment to draft the letter granting exception.)
On Dec. 22, 1999, a letter was sent on the Olsens' behalf to County Executive Ron Sims asking him to investigate the county's failure to make a key document available.
The short version of Sims' response was that the memorandum "did not contain any new information used or considered ... in granting the [s]pecial [e]xception." He further explained that the information contained in the memorandum "in no way influenced the preceding year's decision to allow an exception," court documents state.
On April 27, 2000, the couple took their disagreement with the county to King County Superior Court, asking the trial court to order the county to produce all appropriate documents used or considered in the formulation of the special exception.
But they lost. The county argued it had decided to grant the exception long before LakePointe's lawyer had written the Jan. 6, 1999 memo. The county maintained that the special exemption was made in August of 1998, not in January of 99 as the Olsens contended.
The Olsens appealed the court ruling. And they won. A state Court of Appeals published opinion filed June 4 states that King County violated the Public Disclosure Act when it refused to hand over that traffic-related document concerning the LakePoint development. It must hand over the document in question. In addition, the case has been remanded to King County Superior Court to determine an appropriate award for the Olsens. The award would include the cost incurred by the Olsens for fighting the case ‹ and its appeal ‹ plus a payment of $5 to $100 for each day the Olsens were denied access to the document.
Was it inappropriate to have the developer's lawyer draft a document which would be used by the county as the basis for the findings for exception?
Bonnie Olsen thinks so.
"There should have been separate interests there. "There should be some distinction between the regulated and the regulator," she said.
"The main thing," said Dan, "is that a document was withheld. This signals that something was improper."
A Seattle Times article quotes county road engineer Paananen who wrote the Jan. 13 letter of special exception as saying, "It's not unusual for us to make the developers do some work, to justify why their development should move ahead. We are in more of an approval position. We routinely require developers to make those type of decisions."
Dan Olsen thinks this King County employee is minimizing the significance of what they've done.
"When someone who has a vested interest, a developer, will create the draft of a county decision in a way that is beneficial to the developer, there's a bias," he said.