The Washington Supreme Court’s decisive 6-3 decision in the case of Foster v. Dep’t of Ecology reversed “the superior court’s and PCHB’s Ecology’s decisions affirming Ecology’s approval of the Yelm permit” to grant Yelm a more than doubling of their water rights. This is now the second win by a citizen against City of Yelm & Ecology actions affecting a property owner’s water rights, the first being the December 2011 decision for JZ Knight against the City of Yelm.
– Mayor Harding’s comment in the October 8th Nisqually Valley News missed the mark:
“Harding said he felt Yelm was singled out by interests within the city who want to curtail growth by restricting water use.
‘I think we were singled out because we have a local entity, or entities, that want to control growth through water,’ he said. ‘That’s the only conclusion I think a reasonable person could come up with.'”
– Nothing could be further from the truth:
I assert such attitudes are a contributing factor to the City of Yelm’s 2-time loss before the WA Supreme Court. Harding has derided two area property owners who took their water rights cases to the WA Supreme Court and both won (JZ Knight & Sara Foster). Neither of their cases were about restricting growth, rather, as the WA Supreme Court noted in Foster’s decision where Justice Charles Johnson simply wrote, that municipal water needs do not rise to the level of overriding public interest, PERIOD!
– Under Mayor Harding’s tutelage, “end runs” around the public process are the norm.
The City of Yelm has continually not followed the process to protect the public interest from an overreaching municipality, and the Yelm City Council’s complacency to not reign-in Harding makes them culpable in this case. No longer can the mayor blame citizens for the city’s high legal bills, for this is at the city’s hands in over-stepping the process, followed by citizens standing-up for their rights.
– The following is a partial list where the city did not follow the process
of their own ordinances, laws and statutes since Harding became mayor almost 10 years ago:
* 2006, City uses public funds to partially finance a private water study.
The City of Yelm partially financed the Golder Water Study for a private developer against city rules and without a contract. When the developer went bankrupt, the city was not reimbursed for the outlay.
* 2007, Yelm Wal-Mart approved and opens without Bypass funding.
The Yelm Super Wal-Mart was ONLY permitted to be built here by using the Yelm Bypass to mitigate its traffic, a then-unfunded and unbuilt Bypass to handle Wal-Mart’s traffic. The City of Yelm’s own Transportation Mitigation Plan for Wal-Mart construction being approved REQUIRED that traffic would be handled via a completed Yelm Bypass WITHIN 6 YEARS! Now that the Bypass to Wal-Mart is funded and may be built by 2020, that would be over 13 years after Yelm approved the traffic mitigation plan. Wal-Mart opened in July 2007.
* 2009, Thurston Highlands development defaults.
One of the state’s largest developments at the time, Thurston Highlands defaulted and left the city with unpaid taxes and fees in the 100’s of thousands of dollars. The city had filed no lien to get public monies returned. Why?
* 2010, Mayor proposes Yelm Library condo purchase without council approval.
Mayor Harding admitted to TRL he did not consult the city council in offering to buy a private condo to house the Yelm library, against city rules, which states no individual can commit city expenses.
* 2011, Yelm Chamber’s electronic reader board placed on city/public land “greased” by Mayor Harding.
“[Former NVN Publisher/Editor Keven] Graves pointed out, ‘As mayor, Harding has the potential to knowingly or unknowingly ‘grease the skids’ for the chamber in this process. [to place a Chamber reader board on City of Yelm property while he was Chamber president].’
Graves continues, “…I believe the ‘perception’ of a conflict of interest can be every bit as damaging as a genuine conflict of interest.”
* 2012, JZ Knight vs. City of Yelm – Knight wins against Yelm in water rights case.
In a stunning 7-2 decision written by Justice Charles Wiggins and finalized January 2012, “the Supreme Court held that Knight established that the land use decision is likely to prejudice her water rights and satisfies the statutory standing requirement.” The City of Yelm had approved 5 development plats without proving the city had water rights availability at the time of plat approval. Knight pressed the city to follow the process, arguing that not doing so would have adversely impacted her senior water rights downstream of the development.
* 2013, Council does an end-run around property tax payers in authorizing $1 million added to library bond, without public input.
The Yelm City Council authorized $1 million in funds be tacked-on to the Library Bond and when the community center bond measure failed on two ballots in 2013, those funds were posted in the 2014 city budget released in late 2013. The key point about this issue is that property tax payers outside of the Yelm City limits also contributed to library revenues and were not consulted on the library bond nor the tacked-on appropriation, which equates to taxation without representation, another end run around the citizens.
* 2014, Council approved an end-run around 2 publicly failed community center votes.
Even though Park Plan/Community Center bonds failed twice previously in 2013, the City of Yelm solicited grant money to build the Community Center on Yelm City Park land without public process. The first grant of $970,000 was authorized to be received by the council in 2014, a second one followed in 2015.
* 2015, Yelm City Administrator position still not posted.
30 year city veteran Shelly Badger gave notice to the city on June 5 her last day in the position would be September 1. Nothing has been publicly posted in the 5 intervening months, almost 40 days after the position’s vacancy.
To Mayor Harding and the Yelm City Council:
Foster’s win demonstrates yet again that officials take an oath to serve the public’s well being and when that is disregarded, citizens have the courage and will to rise up and challenge the city’s infringement on their property rights. This is true citizen participation in a Constitutional Republic.
Thanks to a city hellbent on usurping property-owners water rights, Washington water law history has been made in Yelm, twice.
The Washington Supreme Court clearly stated:
“the OCPI exception (overriding consideration of public interest) is not an end-run around the appropriation process or the prior appropriation doctrine.”
Mr. Harding, WA Supreme Court’s 2 decisions serves to tell you in no ambiguous terms –
NO MORE END RUNS AROUND THE PROCESS!
– “Court cancels water right permit for city of Yelm”
“Ruling to guide Ecology in future water right decisions in water-short basins”
Department of Ecology News Release – October 8, 2015