Everyone is equal under the law, or at least that’s how the American legal system is supposed to work. But ask anyone who’s ever challenged city hall or a county or state government if that’s true and you may get a different answer.
Individuals or neighborhood groups looking to challenge local government’s approval of development projects can easily find themselves outmatched by deep pockets. These cases are often complex and time consuming.
When nonprofit Friends of the East Fork Lewis River and Fish First, a nonprofit group focused on fish recovery, opposed JL Storedahl & Sons’ proposed mine near Daybreak Regional Park in the 1990s, they turned to Ridgefield attorney David McDonald.
“We were in that challenge for almost 10 years,” McDonald said.
After Clark County ruled against the mine, Storedahl appealed the decision to Superior Court then took the case to the state Court of Appeals, McDonald said. The appellate court reversed the county’s decision.
“We petitioned for review by the (state) Supreme Court and lost. They didn’t take it for review. So all those years we won, we won, we won. We just kept winning. Then we lost once, and we have a mine now,” he said.
Dean Hergesheimer and his neighbors have spent the past few years trying to get the county to overturn or revise a decision they say is making their Fairgrounds neighborhood unsafe. Hergesheimer lives off Northeast 174th Street, which is included in the plan to upgrade roads around 179th Street. The residents have argued that housing being built in their neighborhood, with more planned, will increase traffic beyond the road’s capacity and pose a hazard to both drivers and pedestrians.
“When you get a whole bunch of new people in here, with visitors and other traffic, somebody is going to get nailed,” Hergesheimer said.
Hergesheimer, who is a retired engineer and worked for the city of Ridgefield, has written to the county’s engineers and county council asking for help. He even took the case to a hearings examiner in 2021 but lost after the examiner deferred to reports filed by the developer’s engineers.
“I’m retired. I’m no longer practicing. They were practicing engineers, they stamped and signed it. That has a lot of power,” he said.
Hergesheimer and his neighbors appealed the decision to Clark County Superior Court in late 2021, but the court again found in favor of the development.
Legal costs
McDonald may offer his services pro bono but not every attorney does, making finding and paying for an attorney another obstacle for residents. Friends of Central Vancouver has not yet gone to court in its battle with the county and Portland Vancouver Junction Railroad over alleged environmental impacts, but the group is preparing for that possibility.
“One challenge is finding qualified legal representation that is not tied to developers or to the railroad, in addition to being knowledgeable about environmental law and land-use issues,” Friends of Central Vancouver founder Jan Kelly said. “We searched for months until we found the best. But the best comes with a price, so we are continually fundraising.”
John Nanney and his neighbors are working to block the expansion of mining operations in the Chelatchie Bluff Mineral Lands.
“Good land management lawyers, growth management lawyers are more expensive. They’re anywhere from $500 to $600 an hour and on up,” Nanney said. “That’s per hour. It takes 10 hours just to get a lawyer to get his or her head wrapped around whatever it is you’re hiring them to do.”
McDonald has seen firsthand the challenges residents and community groups face in court. McDonald represents both the Friends of Clark County and Friends of the Columbia River Gorge.
The court appearances themselves can highlight the disparity in resources. When Friends of Clark County appealed the county’s approval of a surface mining overlay requested by Granite Construction, McDonald said, “It was me against eight lawyers from four different firms.” And that didn’t include lawyers from the county that worked on the case.
Cases involving local governments and citizen coalitions are often the result of land-use, zoning or other comprehensive growth plan decisions and must go before a land-use hearings board. Unlike a criminal or civil case, where the evidence from each side is weighed equally, cases involving comprehensive plans and development regulations have far different requirements.
Under Washington state law, comprehensive plans and development regulations are presumed valid when they are adopted. Further, “the burden is on the petitioner to demonstrate that any action taken by a state agency, county or city … is not in compliance,” with the state Growth Management Act.
The board can rule otherwise only if the actions by the state agency, county or city are “clearly erroneous in view of the entire record before the board.” This can be a difficult threshold to meet.
Finding a solution
State Sen. Lynda Wilson, R-Vancouver, who is stepping down from her 17th District seat at the end of the year, said she has not been asked about this specific requirement but does know how difficult it can be for residents.
“One of the most rewarding parts of my 10 years as a legislator has been to act as an advocate for residents of my district and help them navigate through the bureaucracy. Sometimes, they have been ignored by an agency, and I’m just trying to help them get any response at all. Sometimes, it’s because they are having to go above and beyond to prove they are right and the government is wrong,” Wilson said.
Wilson introduced Senate Bill 5073, also known as the Three Branches Act, during the most recent legislative session. She said the bill was intended to address the benefit of doubt government jurisdictions have in these cases.
Under the bill, courts would not be allowed to “defer to an agency’s interpretation of an ambiguous statute when reviewing agency action,” and would have to “serve as a neutral and impartial decision maker responsible for interpreting the statutes that apply in each case.”
“Unfortunately, my bill was not even allowed a public hearing. I’m confident that policy will be proposed again, even though I won’t be the one filing the bill, because government doesn’t always know best,” Wilson said.
One idea that’s been suggested is requiring cases involving growth plans or land-use regulations to be referred to a judge or mediator with specific experience. Wilson said she doesn’t support that idea.
“Legislators (and judges) do not tend to be land-use experts, and I see that as helpful for providing a level of objectivity which is an asset when addressing land-use and zoning concerns … whether it has to do with increasing the supply of housing or the siting of something like sex-offender housing — or the Chelatchie freight rail expansion plan, to use a local example,” she said.
Whether it’s about land use, growth plans or other regulations, Wilson said everyone should be ready and willing to question the government’s position.
