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In re Recall of Burnham

Supreme Court of Washington, En Banc

September 12, 2019

IN RE THE MATTERS OF THE RECALL OF: JEAN BURNHAM, DALE JACOBSON, RYAN SMITH, SUE CAMERON, MAYOR AND COUNCIL MEMBERS OF THE TOWN OF CATHLAMET.

          OWENS, J.

         This case concerns a recall petition filed against the mayor and three members of the town council of Cathlamet. All of the charges against the councillors and most of the charges against the mayor pertain to Cathlamet's purchase of a parcel of real property. The remaining charges against the mayor pertain to his use of separate town-owned lots to park his personal business vehicles. We hold that the charges pertaining to Cathlamet's property purchase are legally insufficient because acquisition of real property is a fundamental government purpose and a discretionary act that was not manifestly unreasonable in this instance. We hold that the charges pertaining to the mayor's use of town-owned lots are also legally insufficient because the mayor's alleged conduct was not substantial. Accordingly, we affirm the superior court.

         FACTS

         Cathlamet is a town of 550 people on the Columbia River in Wahkiakum County. In December 2018, Bill Wainwright, a local resident and member of an unincorporated group called Concerned Citizens of Cathlamet, filed six recall charges against the mayor, Dale Jacobson, and two identical recall charges each against town council members Jean Burnham, Sue Cameron, and Ryan Smith. Most of the charges pertain to the town's purchase of a parcel of real property located at 20 Butler Street (the Butler Street Property) in Cathlamet. Charges 1 and 2 against Burnham, Cameron, and Smith, and charges 1, 2, and 3 against Jacobson allege violation of and conspiracy to violate article VIII, section 7 of the Washington State Constitution via a gift of public funds to the seller of the Butler Street Property, Bernadette Goodroe. Charge 4 against Jacobson alleges on essentially the same basis that he violated RCW 42.23.070(2), which prohibits municipal officials from giving or receiving gifts related to their official capacities.

         The remaining charges against Jacobson pertain to his use of separate town-owned lots to park personal business vehicles. Charges 5 and 6 against Jacobson allege violation of article VIII, section 7 of the state constitution via a gift of public funds to himself and violation of RCW 42.23.070(1), which prohibits municipal officers from granting themselves or others "special privileges."

         The superior court held a sufficiency hearing regarding the recall charges on January 22, 2019, and issued a written ruling on January 25, concluding that all charges were legally insufficient. Wainwright filed a notice of appeal on February 6.

         I. Cathlamet's Purchase of the Butler Street Property

         The Butler Street Property is a 6, 200-square-foot corner lot in Cathlamet. From the 1920s through the 1970s, it housed a gas station, including four underground fuel storage tanks. In the 1970s, the town discovered that the tanks were leaking. In 1997, the Bank of the Pacific purchased the Butler Street Property. After soil samples revealed concentrations of petroleum chemicals exceeding levels permissible by law, the bank invested in remediating the site. Soil and groundwater samples taken thereafter demonstrated contamination levels within legal limits. A small quantity of residual contaminated soil was left in place due to inaccessibility.

         An environmental covenant was recorded for the Butler Street Property in 2005 to prevent disturbance of the small area of residual contaminated soil that could not be removed. The covenant prohibits an owner from undertaking any activity that might release or expose the residual contaminated soils without prior written approval from the Department of Ecology (Department). Such activities include digging, piercing the surface, or placing any objects that stress the surface beyond its load-bearing capacity. The Department issued a "No Further Action" letter to the bank in 2006, effectively declaring remediation complete. Clerk's Papers (CP) at 109.

         In 2007, Goodroe and her late husband purchased the Butler Street Property from the bank for $75, 000. The bank executed a hold harmless agreement, indemnifying the Goodroes for any farther remediation. The agreement expressly stated that the bank's liability "survive[s] its sale of the property ... and shall continue in effect in the event of subsequent sales of the property." CP at 120. In 2011, the value of the Butler Street Property was assessed at $75, 000; in 2018, it was assessed at $34, 400. As of 2018, the Butler Street Property was vacant and being used as a parking lot. Sometime prior to 2018, Goodroe served on the town council.

         On March 15, 2018, Jacobson initiated Cathlamet's purchase of the Butler Street Property from Goodroe and directed the town to convey $1, 000 in earnest money. Goodroe's original asking price was $72, 000, which the town negotiated down to $68, 000. Cathlamet hired a private appraiser, who appraised the Butler Street Property at $40, 000, assuming "no lasting environmental impact." CP at 200. The appraisal noted a likely change in land use to a "possible park/open space." CP at 199. In declarations, Jacobson and Cameron stated that the council sought to purchase the Butler Street Property for conversion into a "pocket park." CP at 141, 103. Cameron, a former environmental health director, declared that the "covenant does not interfere with any contemplated use of the property." CP at 104.

         On June 18, the town council held a regular meeting at which the council approved the purchase of the Butler Street Property by a majority vote. In declarations introduced by Wainwright, two town residents stated that they heard Burnham say in July 2018 that the council approved the purchase because "'we wanted Bernadette Goodroe to get her money back.'" CP at 231, 233. On July 10, Cathlamet's attorney advised Jacobson against closing on the purchase. The purchase was completed for a final sale price of $68, 000. A statutory warranty deed was recorded on July 16.

         On December 12, the Department conducted a review of the Butler Street Property and reported that "the requirements of the [covenant] have been satisfactorily completed. No additional remedial action is necessary at this time." CP at 135.

         II. Jacobson's Use of Town-Owned Lots To Park ...


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