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HomeMy WebLinkAbout1995/08/03 - Board of Health h MASON COUNTY BOARD OF HEALTH August 3, 1995 The Board of Health was called to order at 10:00 a.m. by Board Member William O. Hunter with Board Member Mary Jo Cady in attendance. Chairperson Faughender absent. ATTENDANCE: William O. Hunter, Board Member Mary Jo Cady, Board Member Sieve Kutz, Director of Personal Health Pam Denton, Environmental Health Specialist Carolyn Jensen, Environmental Health Specialist Rick Aitken, Appellant Stephen Whitehouse, Appellant's Attorney Earl Heckler, Timberlake Board Kevin Burton, Journal APPEAL HEARING - RICK AITKEN Board Member Hunter announced that Rick Aitken was appealing a determination by Mason County Department of Health Services that his connection to Timberlake Water System violated the water adequacy determination that was the basis for issuance of his building permit. Those wishing to testify regarding this issue were given the oath. Stephen Whitehouse, attorney representing Mr. Aitken, presented a map of Timberlake. He noted there were 12 divisions in Timberlake put together in the mid to late 1960's. There was also a division 13 which was not referred to on the map (Exhibit A) located in the upper right section. On the right side, a finger of property going into Timberlake was not formally a part of Timberlake, but property owned by the developer when Timberlake was being put together. Mr. Aitken's property was located in that finger of land, and described as #2300000, on a parcel map (Exhibit B). He stated there was a house built on #2300040. The property and that house were being supplied water by Timberlake,-which was relevant to what was being considered. He then presented a map entitled Timberlake No. 6 (Exhibit C) which showed green belt areas and two wells on Lot #86 which serve Timberlake. (Exhibit D), Certificate of Ground Water Right was presented which was issued in 1970, after Timberlake was improved. He stated there was another certificate of water right which was done in 1975 and goes back to 1972. However, he did not have extra copies. In both certificates of ground water rights, it stated which plats were to be included. In the certificate presented, Plats 1 through 6 were included. In the other certificate, it simply referred to Timberlake No. 6. Board Member Cady asked if Mr. Whitehouse was implying that water rights had not been issued to the rest of Timberlake. Mr. Whitehouse replied, yes. He stated there was a Statutory Warrant Deed (Exhibit E) in which he referred to the bottom of the second page which stated, "The grantors herein quit claim and convey to the grantee the entire and complete water system installed and to be installed on all of the above-named subdivisions of Timberlake, being the Plats of Timberlake No. 1 through Timberlake No. 7 . . . " MASON COUNTY BOARD OF HEALTH August 3, 1995 - Page 2 of 17 Mr. Whitehouse stated that basically the system was transferred over on December 13, 1968. At that time,-the county had approved No. 1 through No. 12. Prior to 1968, 1 through 7 had been approved. By the summer of 1968, Nos. 8, 9, 10, 11, and 12 were approved. Thirteen was not approved until 1969. Nos. 1 through 12 were approved by the county, but there were no Water Right Certificate exhibits. The transfer of the water system as to 1 and 7 were transferred over after 12 had been approved. The Statutory Warranty Deed transferred over the water system from the developer to the community club. Board Member Cady asked if there was a document issued by the State of Washington. Mr. Whitehouse replied that there was none to his knowledge. Board Member Cady wondered if the county had approved the plat but not the water system. Mr. Whitehouse stated he did not believe the county had to approve the water at that time. He had tried to locate the records for the water system to go back and historically look at that. The water system records, to his knowledge, do not exist. The county did not require them back then. He had checked with the Engineer's Office regarding older records, but they could not be located. The system was put in by Vern Bedell. He had tried to locate the developers, and was unsuccessful. Most of the developers were now deceased, as is Mr. Bedell. He had located the surveyor and talked with him. The surveyor had not been able to furnish much information except he believed the developers were deceased,.and.that Mr. Bedell's records had been turned over to Arcadia Well Drilling. When contacted,,Arcadia Well Drilling did not have Mr. Bedell's records and believed they had been destroyed by Mr. Bedell's widow. Board Member Hunter asked if Mr. Whitehouse had contacted Mrs. Bedell.to verify that information. Mr. Whitehouse replied he had not. He noted he had . made 12 to 15 telephone calls to get the information he related, as well as visiting the title companies, and he was not convinced he had all the pieces to the puzzle, but he had quite a few of them. Board Member Hunter asked if Lawrence Bedell had also worked with his brother Vern. Board Member Cady stated that Lawrence Bedell may have some of the records. Board Member Hunter believed Lawrence Bedell was also deceased. Mr. Whitehouse commented that the records show Timberlake being developed in 1968. During tthe early part of December, Divisions 1 through 12 had-been approved by the county. However, no water rights had been issued up to that day, but the wells were in place. On December 13, 1968, the well system got transferred over to the homeowners association. About 6 months later, Division 13 was approved by the county. The transfer only made reference to Divisions 1 through 7. Then a water right certificate was.issued in 1970, only making reference to divisions 1 through 6. There were no water rights to serve the rest of the remaining divisions, or the 5 lots on the finger of land. There were pipes in place going to all the other divisions which were placed there approximately 35 years'ago, including the five lots. (Exhibit F), Contract for the Sale of Real Estate to Arlon and Mary Gessel from Timberlake, a co-partnership was presented. Mr. Whitehouse remarked that Timberlake was developed by a different legal entity. The signators for Timberlake were S. P. Putnam and Olson. They were part of the Board of Directors of Timberlake Incorporated which developed Timberlake. The owners of the incorporation totaled half of dozen. 'Timberlake owned the entire some-what rectangular area, including the finger, but they didn't include that in the development. But when they put in the water system, they ran the pipes to.the lots. There was a house sitting there presently on one of the lots which was not a MASON COUNTY BOARD OF HEALTH August 3, 1995 Page 3 of 17 part of Timberlake that was being served by Timberlake. Mr. Whitehouse remarked that Mr. Aitken bought from the Gessels a few years ago. The Gessels owned the property for some 30 odd years. In their Contract of Sale, even though it was not recorded, you will see in the middle of the first page, the purchase price of $2,800 included the water in the amount of$300. The paragraph below stated that the seller agreed to install a water system for the use of the purchaser and others. Also, there was a legal description put over the top of the document. The document referred to the property as Lot 2C. He had been unable to find Lot 2C in any of the records in the title companies, but at some time there was. As far as the Gessels knew, for an excess of 30 years, they had an absolute right to get water from Timberlake. They paid $300 for it. Mr. Aitken succeeded to those rights. At the time that Mr. Aitken first went into the Health Department, he thought he might put in a well, but realizing that was too expensive, and he knew he had the right to hook up to Timberlake, he hooked up to Timberlake water. He never got a formal letter of approval to hookup. He did communicate with them, and they have been aware for the last year that he had been hooked up to their water system. Some disagreement has arisen between Mr. Aitken and Timberlake over a number of different issues. He was not privy to those conversations and he could not say exactly what occurred. He did know that one of the problems that Timberlake had was the fact that Mr. Aitken took a bunch of timber off his lot. Timberlake has a very strong policy against removing timber. So much so that they have completely redone their covenants from one page to many pages. A great emphasis of the covenants was not to remove trees and they have regularly written people letters about not removing trees. He knows this because he along with some other people owned a lot at Timberlake. Their policy regarding this was very strong. It was his understanding that the people at Timberlake got very upset over the fact that Mr. Aitken removed the timber. Then a question arises that while he had this right to get water it appears he was not a part of Timberlake. He didn't have the right to use other Timberlake facilities. He didn't have the rights of other owners and he was also not subject to their covenants. He believed the people at Timberlake felt you were either part of Timberlake or you weren't, and some animosity was created. Timberlake refused to write a letter saying Mr. Aitken was officially on the system, yet as far as he knew, he had contractual rights to do so. One problem being the people who granted the water rights were a partnership, it wasn't the corporation, and at the time the grant was given, the water rights as to Divisions 1 through 7 had been transferred over. There was a legal question whether or not this partnership had a right to do this and whether or not the rights the Gessels thought they had for over 30 years could be transferred to Mr. Aitken. Board Member Cady asked if it mattered whether Divisions 1 through 7 had been transferred over since Mr. Aitken was not a part of the development. Mr. Whitehouse replied that it did matter because at.the time that was done, the corporation still owned a part of the water system. There were two stockholders of the corporation acting as a partnership, transferring the rights. Back in 1970 when things were done in this county in regards to easements, they were done a lot more informally than they were done now. Also, $300 was transferred over and paid. We don't know who ended up with that money, whether it ended up in the partnership, corporation, or homeowners association to pay for the water rights. MASON COUNTY BOARD OF HEALTH August 3, 1995 - Page 4 of 17 Mr. Whitehouse stated,that if litigation gets involved, then they would ask to look at Timberlake's records. They do know that the pipes went there, and also to Divisions 8, 9, 10, 11, 12 and 13. Water was also being supplied to Mr.Aitken's neighbor. Timberlake, through a course of history, has gone beyond what was in the legal documents and provided water based upon what might appear to be some unwritten understanding. From a legal point of view, Mr. Aitken has a legal ground to assert that he has this right even though. it's possible that the original people who conveyed the rights did not have the right to do so. There are some legal theories under which that can occur. Board Member Hunter asked if the neighbor paid a fee for his water. Mr. Whitehouse understood that he did. In his conversation with Mr. Wilson-Hoss, who represents Timberlake, he had raised that issue many times and there had never been any dispute that the neighbor has. the water, and Mr. Aitken just wanted what this neighbor has. Board Member Cady asked if Mr. Aitken had also been paying for the water. Mr. Whitehouse replied that Timberlake has been sending Mr. Aitken bills. Mr. Aitken had talked with Mr. Heckler about a year ago when he hooked up, at a time when they were communicating, but then the communication had broke down. Board Member Hunter asked if Mr. Aitken had contributed to the Homeowner's Association. Mr. Whitehouse replied that it was Mr. Aitken's understanding, when he bought his property through Home Title, and Home Title told him at that time, that he had a right to water but he was not part of the Homeowners Association and he was not bound by the covenants. Board Member Cady asked why only part of the conveyance went to Mr. Aitken. Mr. Whitehouse answered that the title company never saw the original document. Board Member Cady asked if that was because it was never recorded. Mr. Whitehouse replied that she was correct. He stated, in response to the earlier question whether Mr. Aitken had paid anything for his water, Mr. Aitken had offered to pay but was refused. He noted it was a fairly complicated situation. Quite frankly, he had not focused on that issue. His focus had been primarily on water. That was obviously the most important because Mr. Aitken has a house there and he was living there with his family and they need to have water. It was his understanding that the letters received by Mr. Aitken have not cited any general ordinance or WAC provisions that Mr. Aitken had violated. They refer generally stating he has violated a section or ordinance, but no specific reference to what had been violated. So, he had sort of had to guess. One WAC section referred to sewer, and did not involve water, and he didn't understand why that was cited. The water WAC referred to has over 50 subsections, so he did not know what was being referred to. There was a reference to Ordinance 24-92, which was obviously done in 1992, which was after this was done. Although the one thing that had occurred since then was the hookup. There was a section dealing with criteria dealing for existing public water systems and it said that public water supply systems used for potable water shall be considered adequate when: Prior to providing water to a lot, the operators of an existing water system, shall ensure that their system was in the scope of the system's water rights, including authorized place, use, limitations, etc. So in order to formally comply with the county, Mr. Aitken had to get a letter from.Timberlake, but Timberlake MASON COUNTY BOARD OF HEALTH August 3, 1995 - Page 5 of 17 refused to issue a letter because of this legal dispute in which Mr. Wilson-Hoss and he had been writing letters back and forth over the past two months. At the present time, they had a proposal on the table to resolve this, but it would not be proper for him to go into that. He has not yet had a response back to the proposal. It also involved the Gessels because they were in a bit of a difficult legal position and he had written them several weeks ago that this matter seemed to be coming to a head, but to resolve this, they may want to become a part of it because if it went to litigation it would be expensive for everyone. The Gessels had represented to Mr. Aitken that he had water. If he doesn't have water, he paid for a lot based upon a lot with water, and paid significantly more than he would have paid for a lot without water. They could be liable to him. Mr. Whitehouse remarked that what they really have here, and he was not pointing blame at anyone, were three innocent parties. Those being: Timberlake Homeowner's Association, Mr. Aitken and the Gessels. He noted there was some animosity between Timberlake and Mr. Aitken at the present time which may serve as the motivation for why they may be taking their position. In terms of this being a complicated mess, the Homeowner's Association did not create it; Mr. Aitken didn't create it, and the Gessels didn't create it. He had suggested that all parties ought to participate in developing a solution so everybody gets stung a little bit but nobody gets hurt too badly. The other alternative was getting into a bigger mess. Hopefully, everybody would like to avoid this. He was trying to focus on a solution, and what he was presently saying to Timberlake at the present time was that this was everyone's problem, not just Mr. Aitken's problem, and he was not going to bear the entire burden. This has been going on for years, and the Homeowner's Association has never dealt with it, and they will have to deal with it even though they may not like Mr. Aitken. Mr. Whitehouse commented that presently it was a civil dispute in which the county has stepped in, he was sure, by the urging of Timberlake. Now this procedure has been started. If the county was willing to say this was not prudent because it was not approved by the state, that the water rights do not cover it, then the county also has to demand that these other people, that the adjoining neighbor unhook. The county has to demand that half of Timberlake be unhooked from that system. He was sure that if the historical records were checked, that in 1970 when this $300 was paid, when that right was attached, and the court recognizes that right, at that time his individual right through his predecessor to attach to that line, then he would be well ahead in the line of priority over a whole lot of people in Timberlake because he was sure other lots were bought later. Although he could not say that .for certain, he was only guessing. When a development gets put together in 1967, 1968, and 1969, a lot of those lots in 1970 would still remain unsold. Mr. Whitehouse remarked the state has put a moratorium, as he understands it, even though he has never seen it, but he has been told by Mr. Wilson-Hoss that this moratorium has been placed on new hookups at Timberlake. No one has ever told him that they didn't have enough water when they turned on their spigot. Mr. Aitken has not had that problem, but the state was saying that things have to be done to upgrade the system. So Timberlake has a problem because they have other lot owners within the Timberlake,formal subdivisions that they have an obligation to provide water to and if they don't do something to solve that problem, then a lot of people will MASON COUNTY BOARD OF HEALTH August 3, 1995 - Page 6 of 17 be coming out of the wood work to sue them because they were not fulfilling their obligation. He did not believe the state has said to them that people have to be unhooked, but what they were saying was that something has to be done to solve the problem. Part of what Timberlake has an obligation to do now, would also help to. solve this problem. But, there was also the second problem between Timberlake and Mr. Aitken. Mr. Whitehouse asked if he had thoroughly confused everyone. He noted it,was difficult. He believed the county, at this time, should be part of the solution, as opposed to coming forth and telling Mr. Aitken to disconnect water to his house so he and his family cannot have water. That would be an inappropriate thing to do. He believed there were things that needed to be worked on, and they were willing to work towards that, but they were unwilling to bear the entire brunt. Board Member Hunter asked if Mr. Aitken wanted to add anything. Mr. Aitken,stated he did not, at this time. Carolyn Jensen commented that she does the drinking water systems and has done original reviews of the building permit applications. The chronological events (Exhibit G) that occurred were that Mr. Aitken applied for a building permit in June of last year and when it was reviewed she found that the water adequacy needed more attending to so she wrote a letter to him saying he needed to have a determination of adequacy signed by Timberlake that they could provide him with water. That was never returned by Timberlake. Instead, a letter from Evergreen Well Drilling was submitted stating Mr. Aitken hired them to.drill a well and they felt there would be no difficulty in locating water. Also, Mr. Aitken applied for a well construction permit at that time, so the Department felt he was providing evidence that he was going to drill his own well, so the building permit was issued. Board Member Cady asked what the document from Evergreen Well Drilling was. Ms. Jensen replied that it was a letter written by.them. Ms. Jensen stated that shortly thereafter, in October, notification was received from Evergreen Well Drilling that they were going to drill the well, but when the site was inspected she found it had never been drilled. She had talked with Evergreen and they verified that the well had never been drilled. Then, later this year, in the latter part of June, it was brought to the Department's attention that Mr. Aitken had hooked up to Timberlake. A letter was sent to him that he needed to resolve the situation. Mr. Aitken contacted her and advised her that he was not going to disconnect from Timberlake, so the department sent a notice that he was in violation of the conditions by which his building permit was granted. Board Member Cady asked if when the building permit was issued was there a written condition placed that a well had to be drilled prior. Ms. Jensen stated it was not written on the permit. It was stated that this was the intention. While receiving a letter from Evergreen that the.well was going to be drilled, it was their understanding that this was Mr. Aitken's intention. Board Member Hunter asked when the letter notifying Mr. Aitken that he was in violation was mailed. Ms. Jensen stated that the first letter she sent was June 29th, and the formal notice and order was sent on July 10th. (Exhibit H) MASON COUNTY BOARD OF HEALTH August 3, 1995 - Page 7 of 17 Board Member Cady asked if the determination of adequacy was ever completed. Ms. Jensen replied that it was not; the department had sent a letter stating he needed a certificate of adequacy to prove he was legally hooked up to Timberlake. Board Member Cady asked if he was mailed a form. Ms. Jensen replied he was. Board Member Hunter asked if all the Timberlake divisions were on the adequacy list by the state at the present time. Ms. Jensen replied yes and no; no building permits were being issued at Timberlake. The state considers Timberlake adequate at capacity. It was her understanding that Timberlake needed to add additional storage in order to supply other residences. Board Member Cady wondered if Timberlake was on the adequacy list because of the water rights issue or because of having problems with the system. Ms. Jensen stated Timberlake was on the list for having problems with the system. Earl Heckler stated he was the Water Purveyor for Timberlake and he was present to answer questions the Commission might have. He agreed that this issue was hard to track. He came on the Board of Timberlake in October, 1993, and in November, 1993, Mr. Aitken called to find out the situation for the piece of property he was trying to buy. He had tried to track it down, difficult as it was, and did not find much at that time. He has now come up with a little more, but nothing spectacular. However, Mr. Aitken asked for a water adequacy permit three different times and the first time he was told there was a building permit process at Timberlake and his duty as the water advisor was that he could not sign off on his water adequacy permit until the building permit process was completed. The second time, it was a similar conversation. He had told him that there was a little problem, that he had to pay a $10 fee. He had stated that was no problem. Then on a 3 day holiday weekend, late in the spring or early summer of 1994, Mr. Aitken approached him, he believed on Memorial Day, and he had told him he needed the water adequacy permit so he could get his application. He had told him he had not followed the Timberlake building permit process and he could not sign the adequacy permit. Mr. Aitken had come unglued, and said he had paid his attorney a lot of money to make sure he was not a member of Timberlake and he had no obligation to their rules. Mr. Aitken had stated if he was not a member of Timberlake, why would he have to go through their permit process. He was told if he was not a member, he could not sign his adequacy, anyway, because the water rights state they could only serve members of Timberlake. He stated they have water rights for all 13 divisions. He was testifying under oath to this, and could guarantee they have water rights for all 13 divisions. 'Board Member Cady asked if the water rights were issued by the State of Washington. Mr. Heckler replied yes, from the State of Washington. He stated that Mr. Whitehouse had pointed out that Division 13 was accepted on August 18, 1969, and they do have certificates for all 13 divisions. He stated they do not have certificates for providing water to survey 6-1747, which was the area requested. He pointed out that Mr. Aitken does not own Tract 2300000, but rather tract 3. Board Member Cady asked Mr. Heckler to show the parcel owned by Mr. Aitken on the map. He identified it was 2300030,just above 2300000. He stated when they saw Mr. Aitken's mobile home coming down the ,road, they had wondered what was going on. They had felt confident that Mr. Aitken would have to do something with Timberlake before he could get MASON COUNTY BOARD OF HEALTH August 3, 1995 - Page 8 of 17 water. When they looked on July 22, Mr. Aitken was hooked up to the Timberlake water system. He had no water adequacy permit other than his request of me to sign it. He had not asked permission and he had not paid a penny to Timberlake in dues or assessments or anything. There was no adequacy permit issued and the reasons why were because he hooked up without telling Timberlake he was going to. As water advisor, he had known it was in violation. The board likes to work with people, but with Mr. Aitken it never happened. Sometime in September or October; while he was on vacation,-he had been told that Mr. Brown told Mr. Aitken that he would make an agreement with him to provide water until his well was drilled, but he was to come to the Board of Trustees and talk to them to hammer out the agreement and get it signed. Mr. Aitken never came back to the Board. There was a failure on the part of Mr. Brown to make the contact with Mr. Aitken as he promised to make,-but at the same token, Mr. Aitken knew there was a contract to be worked on. It works both ways, he could have contacted them, but nothing happened. Mr. Heckler commented that as far as he was concerned, the animosity between Timberlake and Mr. Aitken started when he wrote a letter to Mr. Aitken on May 5th, (Exhibit I) asking him to disconnect. He was given a date. and time to disconnect, and if he had not, they would disconnect it. On that-morning of.the date to disconnect, he had received a frantic call telling them not to disconnect because Mr. Aitken's attorney had said they could not shut off his client's water; that was when litigation started. Up to that point, there was nothing more than this gentleman who hooked up to the water system when he had no authorization to and he was using water at the expense of Timberlake members. Mr. Whitehouse had commented that their covenants-had been redone. The covenants have not been redone, they were exactly like they were initially done and Bled. Bylaws.have been amended.on several occasions and the bylaws have always. said that Timberlake water was for the use of Timberlake members only. It was a pretty clear cut case that this man walked out and did what he wanted to do, and said the heck with you. The county-records filed show that he went around the water adequacy situation and instead was going to build a well. The same restriction was asked again, that he go through the building permit process, which has been upheld in one case in court already. Mr. Aitken was asked to go through the process that any other member of Timberlake would have.had to go through to get a water adequacy permit. Mr. Heckler stated that when the new 200,000 gallon water tank was on line, the same procedure would be used. The connections were at a maximum because of lack of water storage. They have 60,000 gallons of storage and on a day like yesterday, they went through 283,000 gallons. As long as there was water in the reservoir, there were 4 booster pumps running, and every customer would have water. They have two wells that supply 480 gallons per minute and on a- hot afternoon when people start withdrawing 720 gallons per minute it doesn't take too long to run a reservoir dry and then starting at the top of the system everybody would run out. That was why there was the moratorium. There are so 'Many people there, who say it is their water and they can turn-the faucet on anytime they want, but they can only pump 480 gallons per minute. The state knew. a long time ago that the-reservoir was not adequate and they have been telling Timberlake to fix it for years and this board finally has tried to do something about it and passed an assessment by a 72% yes vote. MASON COUNTY BOARD OF HEALTH August 3, 1995 - Page 9 of 17 Board Member Hunter asked for the projected time of completion for the improvements. Mr. Heckler answered they were working on it now, the contract has been signed for 100 working days to get the tank on line. They do not believe it will take 100 days. Board Member Hunter asked if Mr. Heckler believed the new tank would take Timberlake off the inadequacy list. Mr. Heckler replied that the State has written a letter notifying that when the tank is on-line and approved, they would be authorized for 616 water connections. Board Member Cady asked for information pertaining to the other house adjacent to Mr. Aitken which was on the Timberlake water system. Mr. Heckler replied that what Mr. Whitehouse had said was true. The house has been there for a long, long time. He had purchased his property in 1989 and did not get involved in the political scene until the summer of 1993. When Mr. Aitken had contacted him, he had been on the Board approximately 4 to 5 weeks, and it was all new to him. Board Member Cady stated that Mr. Heckler had been emphatic that the bylaws state that Timberlake water was for Timberlake owners only. She asked if the people in the home adjacent to Mr. Aitken were members of Timberlake. Mr. Heckler stated they were members and have paid their assessments as of July 29, 1995, and are members in good standing, as far as he knew. Board Member Cady asked if they paid their assessments since this matter came up. Mr. Heckler replied no, he had used the July 29th date because on August 1, this year's assessments would have been delinquent. He did not know if they had paid on August 1 or were delinquent for this year. Several times prior he had asked if they were paid up, and they were. Board Member Cady asked if the owners had gone through the Timberlake building permit process. Mr. Heckler stated he had no way of knowing and probably couldn't go back in the records far enough to find it because the house was 20 to 25 years old. It was probably one of the first ever built there. There was a possibility that the house was there before Timberlake was developed. He did not expect to testify to a lot of the items brought up by Mr. Whitehouse, so he did not have all his papers with him. He knows there was communication between Mr. Whitehouse and Mr. Wilson- House indicating that the people who signed the deed to the Gessels were not necessarily the legal owners at that time, and certainly knew they were not part of the Timberlake Community Club or the Board and had no right to sell a water connection to anybody. He noted that this was a legal situation. Board Member Hunter stated that when Timberlake was developed, the divisions adjacent to this brought pipes to these lots. Mr. Heckler replied that sometime down the road they were. The original 4" water main was in the county right-of-way on what would be the south side of Pickering Drive and that was the side of the road which abuts Survey 6-47. When, where, or how the lines went in to those four lots, he could not say. Mr. Heckler showed the lots on the map, and where the water line stops. Board Member Hunter asked if the other lots by Mr. Aitken had also paid through the years. Mr. Heckler replied that the other 3 lots that were in question were all paid up members just like the one testified to which has the house. They were paid up the first time he ever checked. Board Member Cady asked if the others were hooked up. Mr. Heckler replied that there was a water MASON COUNTY BOARD OF HEALTH August 3, 1995 - Page 10 of 17 box with a valve on #2, they could hook up a�line but not a house without a water adequacy permit. Lot 91 has electricity on it,,they come out oil a regular basis, and have a water. faucet in the yard. Board Member Hunter asked if that was the same service that Mr. Aitken had prior. Mr. Heckler answered Mr. Aitken had a service line with a valve up to the edge of his property. Had he gone through the building permit process last year; there would have been no reason for his water adequacy permit to'not be signed. This was a situation that could have,easily been avoided because at that time they thought he was a member of Timberlake, but just hadn't paid his dues at that time. Mr. Aitken had told him that he was not a member of Timberlake and he did not have to pay attention to their regulations. Board Member Cady asked about the building permit process. She wondered if there was anything he knew of about Mr. Aitken's home which was not conforming with what would be required. Mr. Heckler answered that, at that time; he would have conformed with the process. There are covenants and guidelines and a.restriction resolution which was.passed in 1993 by the Board. One restriction was that there would be no mobile homes over 10 years old. That was on hold at the time Mr. Aitken came in, and had he gone through the process, they would have had no choice but to grant a permit as long as he was obeying the rest of the covenants and bylaws. That was what their permit process was for. The county has no direct obligation to support Timberlake bylaws and covenants. Timberlake has the obligation and the only way they can control it was by signing off on a water adequacy permit when they were satisfied that people were following the rules they were supposed to be as a member in good standing of Timberlake. Today, that restriction on the. mobile home would be in effect and if he were applying for a permit, it would be turned down immediately, as he understands it, because of the age of the home. If Mr. Aitken's mobile was less than 10 years old, he would be in error and would stand corrected. Board Member Cady asked if Timberlake had an Association and a Homeowners Group. Mr. Heckler replied that it was one thing - Timberlake Community Club Incorporated. It was the homeowner's association that owns the water-system, controls the water system, owns and manages the green belts, everything that was owned by the 1,180 owners. Covenants and bylaws are under this group. The Articles of Incorporation were originally filed as Timberlake Club and there has been one amendment to those Articles, which changed the name from Timberlakes to Timberlake Community Club Incorporated. Board Member Cady asked what the Timberlake Company was. Mr. Heckler replied that was the original, as far as he knew, group of developers which started and did proceed to develop Timberlake. That was why it was originally chartered under the Articles of Incorporation as Timberlake Club. Board Member Hunter asked if in the water fee structure, do un-built lots have an assessment. Mr. Heckler stated they did not have a water rate structure as such. In the bylaws it was specified that 40% of their dues .collected would be earmarked for the water system, water reserve, current repairs, labor fees, whatever there may be. Board Member Hunter asked how they raised enough money to build the new reserve tank. Mr. Heckler responded that the tank was done by a totally separate $250 assessment 'per lot, roughly 1,380 lots. Board Member Hunter asked if in creating the assessment, were the 4 lots in question part of the assessment. MASON COUNTY BOARD OF HEALTH August 3, 1995 - Page 11 of 17 Mr. Heckler replied that he did not recall, it was not called out in any form. They did specify that the lots in Division 911 which were not allowed individual septic tanks, and were unbuildable, were accessed a $50 fee instead of $250 by the fact that they cannot be built on. There was nothing said, it was silent regarding these lots and there again, at that point, when the letter and assessment ballot was written, they were under the impression that all four of those lots were members of Timberlake. Mr. Aitken's title policy shows that he has an obligation to pay for water assessments at Timberlake but it doesn't show that Timberlake has any obligation to him, it does not show that he was a member, it doesn't say there was any other connection except that he has an obligation to pay for water assessments to Timberlake. Board Member Cady asked if anyone present had a copy of the title policy. Mr. Heckler answered that the title policy for the Gessels included paying a membership, and being responsible to the Timberlake Community Club. This was what Mr. Aitken paid an attorney for a different title company to remove for him. Board Member Cady asked if Mr. Aitken paid to have that statement removed, and wondered if it had been recorded. Mr. Heckler replied he did not believe title policies were recorded. Board Member Cady noted that if a title policy guarantees something usually it was gotten off something that had been recorded. Mr. Heckler, stated that he felt fortunate tracking down as much as he had, just being a citizen. It was quite a battle, and he could appreciate what Mr. Whitehouse and anyone working with him must have gone through. Board Member Hunter asked if Mr. Whitehouse had any rebuttal. Mr. Whitehouse commented that Mr. Heckler indicated that back when Mr. Aitken was buying there was an attorney involved. To his understanding, there was not an attorney. His involvement has involved approximately 2 months, and he was the only attorney he knew of that was involved with Mr. Aitken. Mr. Aitken was asked if this was true. He replied that there was only a real estate agent. Mr. Whitehouse stated he had talked with Carl Johnson who was the real estate agent involved in this. Back when this all occurred, there was some discussions about this. The title policy originally indicated, as a preliminary policy, that he was going to be responsible to pay dues and assessments to Timberlake Community Club Incorporated. Then some discussions took place and he did not know what Mr. Bailey's involvement was, because the title insurance came from Home Title Company and Mr. Bailey does not represent individual people. If someone needs individual representation, they are referred out. They act in an independent capacity, and do not take sides in issues. Board Member Hunter asked if the title report came from Home Title. Mr. Whitehouse replied it did. Board Member Hunter noted that Mr. Bailey was part of Mason County Title, not Home Title. Mr. Whitehouse commented that after the preliminary policy was made, discussions were held and Carl Johnson started looking, and realized there was nothing recorded because the real estate contract of the Gessels had never been recorded. What Carl Johnson was tying to figure out was what Mr. Aitken's rights and responsibilities were. The title company withdrew that exception, saying he was going to have to pay dues and assessments. However, his final policy does not include. He did not have a copy of the final policy, but the preliminary policy was changed. MASON COUNTY BOARD OF HEALTH August 3, 1995 - Page 12 of 17 There was a Supplemental to Preliminary Commitment for Title, (Exhibit J), which he did have a copy of. Also, around the same time they said there wasn't anything showing on the water either, which was a correct statement. What happened in the transaction, was that there was communication,however there was no direct communication between the Gessels and Mr..Aitken, a statement was signed as a part of the purchase and sale agreement. This was dated October 9th, 1993, (Exhibit K), and then after they looked into it there was a supplement signed in December, 1993 because the original purchase and sale agreement didn't really make reference to dues, but it did say that the property was served by a community private water system. Then there was a later clarification when these questions arose, based on conversations with Mr. Johnson, and Mr. Aitken signed a statement clarifying what the understanding was and it stated that, "Seller hereby represents and reassures the purchaser that the seller is not aware and has not been given any notice during the time that the seller has owned the property that this land and the previous owner are included in unrecorded agreement which subjects the new purchaser to any covenants, restrictions or reservations which may be imposed by the Timberlake Community Club Incorporated other than an informal agreement for the right to take and pay.for water from a community water system at Timberlake Incorporated. Based upon these representations the purchaser signs these documents necessary to close this real estate transaction." Board Member Hunter asked who drafted that statement. Mr. Whitehouse replied that it could have been done by the escrow company or by Carl Johnson, he did not ask who did it. It doesn't have the Gessels signature on it, it has Mr. Aitken's signature on it, on his copy. There may be another copy with their signature. But Mr. Johnson had assured him that this was the understanding of all the parties at the time. When he spoke with the Gessels, 5 or 6 weeks ago, they told him the same thing. They said Mr. Aitken has a right to water, they had paid $30.0 for the right to water. There wasn't any question in their mind. His impression by the way they sounded on the phone was that the Gessels were an elderly couple who did not go through a lot of stuff. They had the lot for years and years and never paid anything but the property taxes,.but they had the right to water because they paid for it from the people who were involved with Timberlake who sold to them. They didn't understand that Timberlake was developed by a corporation, and the people who sold to them was-a partnership, with two of the same people. They didn't think there was any problem. These representations were made based on the understanding that they had. That was the assurance that Mr. Aitken had when he bought the property from the Gessels and Carl Johnson. . Mr: Whitehouse_stated that Mr. Heckler was right in correcting him about something in regards to the covenants and bylaws. He had said the covenants were amended, and he said, no, it was the bylaws. Mr. Heckler was correct. The bylaws were significantly changed. The covenants were real short and he had not looked at them for some time. He believed within the covenants there were no amendment provisions, based on his recollection. They were stuck with those covenants, but they ran into a problem when they really wanted to stop people from cutting trees because they perceived they had a problem. Mr. Wilson-Hoss redid the bylaws to create rules to bind the membership as members. . Certain things bind members and certain things bind properties. Bylaws don't bind properties, they bind the members. So, that was a vehicle to use the bylaws to try to get around the fact that they didn't have amendment rights in the covenants. The covenant provisions in terms of removing timber were extremely weak, as he recalls, and MASON COUNTY BOARD OF HEALTH August 3, 1995 - Page 13 of 17 they did not feel they were adequate. Back before the bylaws were redone, and he owned a Timberlake lot, there was a question of whether or not they could clear the lot which most real estate agents and builders and most people tell you that lots are more saleable if they are cleared. So, he had to go around about that a little bit. Mr. Whitehouse stated that Mr. Heckler indicated, and this may be a misunderstanding, because he didn't think he meant to say something incorrect, but he indicated that there was current litigation. However, there was no litigation at this time. There are letters and conversations going back and forth, but no litigation. As he perceives as part of what was going on back a year ago, Mr. Aitken was being told that if he wanted to have water from Timberlake, he also had to comply with.all these other things. He was unwilling to comply with these other things because he had been advised back in 1993 that he did not have to comply with these things. He understands, in regards to water, that because there wasn't a definite recorded document, that was a weakness in his case. However, for example, if we have an agreement that you would sell me some property, we don't have it in writing, so generally it is unenforceable, but I am an unsophisticated individual and I say to you OK, in reliance of this insurance, I build a lot of improvements before the transaction was closed, and you say it's OK, and I spend $10,000. Which means there was a real suggestion that I would not be doing this if I did not believe there was an understanding. While, the agreement to purchase real estate has to be in writing to be enforceable, there are exceptions. One exception was if you take action based upon an assurance that doesn't comply with a statute of law, and everyone knows about it, everyone will be bound by it because it was felt there was adequate reliability and that was called estoppel. You would be estopped to deny the existence of the contract because all the actions of the parties were consistent. That, he believed, was the situation here. The situation with whether or not he has to be a member and whether or not he has to comply with these other things, was a very different question, because that brings in the bylaws and other things. He believed this was a different question and particularly fuzzier in his mind because he hasn't studied it as thoroughly as this issue. It mixes apples and oranges, a little bit. He did not feel comfortable stating one way or another on that. He knows that Mr. Aitken was assured, at that time, and has writings to that affect, which can be submitted. Board Member Hunter asked if copies could be made after the hearing and Mr. Whitehouse stated copies could be made. Board Member Cady stated she would like copies of the preliminary and supplemental, the note done by Carl Johnson or whoever, copies of the bylaws and copies of the covenants, since they have all been referenced. Mr: Whitehouse was not sure whether or not he had copies of the bylaws to submit. Board Member Hunter asked if Mr. Heckler could submit current copies of the bylaws to the Board. Pam Denton, Environmental Health Specialist, stated that several issues were discussed today. One being whether or not Mr. Aitken was in Timberlake or not, and the purpose of the appeal, in her understanding, as written on the agenda was an appeal of the Health Department's determination that he violated his water adequacy determination. In order to get a building permit in Mason County, a water adequacy application has to be submitted. Either your own well would be drilled and show that there was adequate and quality of water or you turn in an application that was signed by a water system manager giving authorization to that water system, and then the Health Department follows through to see if it was in compliance. As of today, the MASON COUNTY BOARD OF HEALTH August 3, 1995 - Page 14 of 17 Department has not seen an adequacy application signed by Timberlake and Mr. Aitken has not drilled his own well. Board Member Cady stated that the Health Department had issued a building permit, however. Ms. Denton answered that the permit had been issued based on a letter from Evergreen Well Drilling which stated they were hired by Mr. Aitken to drill the well and that the area of Timberlake did have adequate quantity and quality of water, and he also applied for a well construction permit. The evidence supported the fact that he was going to drill his well. Mr. Whitehouse stated he believed Ms. Denton was right. However, a lot of times when people build they have one application and then things change. He should be able to do that, but he was prevented from doing that by a third party, which was the issue. Mr. Heckler commented that what Mr. Whitehouse said was true, pertaining to the current situation. However, at the time that the violation occurred, in the first place, Mr. Aitken had every opportunity to do what was right. He did it on his own. If he went to someone's farm and hooked up a hose to their diesel tank and started taking 5 gallons of diesel every night, how long would they stand for it? Board Member Cady asked how long Mr. Aitken had been hooked up to the Timberlake system. Mr. Heckler replied that it was at least July 22nd of last year. Mr. Brown wanted to give him every opportunity to provide him with water until he drilled his well, but he was asked to come in and sign a contract to that affect, and he was never seen again. He stated that he had never seen Mr. Aitken at a board meeting and he had only missed one meeting since the time he started on the board. The point was that the rules and laws were violated and it has been that way for well over one year, and that was the issue before the Board today. Were the rules violated and could something be done about it? Board Member Hunter asked if Mr. Aitken had paid for the service. Mr. Heckler answered that he had not paid anything, and Mr. Whitehouse had brought up the fact that Mr. Aitken had offered to pay but was refused. He stated he was unaware of that. He had a lot of conversations with the treasurer and bookkeeper regarding this situation, and he was totally unaware of that. He had difficulty with that statement. Mr. Whitehouse commented that Mr. Heckler made mention to a letter dated May 5th, 1995, where they wrote a letter to Mr. Aitken about disconnecting, that was when he became involved, or shortly after that. This letter was partly read aloud by Mr. Heckler. Carolyn Jensen remarked that the building permit was applied for in June, 1994. Mr. Heckler has testified that he knew as of July that Mr. Aitken was hooked up but the letter and well construction permit were taken out, although unknowingly by the county, he was hooked up at that time, because it was September when he had come in to get the building permit. Mr. Heckler stated it was a storage permit which was issued. Board Member Hunter asked if Ms. Jensen could provide copies of the building permits and when the home was placed on the MASON COUNTY BOARD OF HEALTH August 3, 1995 - Page 15 of 17 property. Board Member Cady asked when the building permit was issued. Ms. Jensen replied that it was in September. Water would not be required for a storage unit. Board Member Cady asked if there was a permit for a storage unit and then the home was put on the property. She asked if this building permit was for a house which was going to be built. Ms. Jensen replied 'that in September a permit for a manufactured home was given. She stated it was not to build a house. Board Member Cady asked if the permit was issued after the fact. Ms. Denton replied that was correct. Board Member Cady asked if anyone from the department went out to the property. Ms. Jensen stated they do not routinely go out and look. Board Member Hunter asked that a chronological order be made and submitted. Ms. Denton stated that she had the chronology for the building permit, but not for the storage permit. The Board asked that copies be provided to them and,to Mr. Whitehouse. Board Member Cady stated she would like to see the building permit for the storage facility and the building permit for the residence. Ms. Jensen noted she would provide those. Board Member Cady asked if Mr. Aitken had anything to say. Mr. Aitken stated he was the one who bought the property. He, like Mr. Heckler, was a working man. He does not know about all these things. He saw the property for sale at a real estate office, and talked with the real estate agents. He wanted to make sure because he did not know that much about real estate, so he went to Mr. Bailey and had him review it. He had advised him that it was fine. He had called Mr. Heckler before he moved and told him the situation that the property was in the county, not in Timberlake. He was told of his intent so they didn't just think he was coming in clear cutting logging and start a big stink. He had made a point that he wanted to live out there and get along with his neighbors, and he wanted them to know he was coming. Mr. Heckler went to Home Title and got copies of everything, looked at things. He had talked with Mr. Heckler in his yard and he said it looked like what it said. He went on to clear the top half of his land where he put his mobile and where he wants his lawn and field. He had a neighbor, Les Greenfield, who was now deceased, who was working right across the street at the same time and Timberlake was always there talking with him and never once approached him or said anything to him about anything he was doing until he went to get his water adequacy form signed in Mr. Heckler's yard where he refused to sign it because he hadn't gone through the permit system which at that time he offered to do and do it right then. Mr. Heckler told him that because he had clear cut his land and moved the mobile in that they did not want there anyway, and refused to sign. At that time, he thought he was over a barrel and didn't have any recourse. He then went to Evergreen Well Drilling because he had his mobile there. This was the only place that he and his son had-to live. He believed he would have to put a well in. In talking with Mr. Brown, who came to his house on a Sunday, to talk about the well, and said he would be back on Wednesday with an informal contract, but he never came back to his house. He did not realize it was that big of an issue or that Timberlake was having trouble with its water system. They contacted him again and he called Neal Brown. He was supposed to come to a meeting but had to work late that night.. When he came in, he had called Mr. Brown at his residence and apologized for not making it and tried to schedule another meeting which never happened. He has done nothing but made a home for him and his son, and also get what he had paid for. Why would he have paid $18,000 for a lot which didn't have water rights?' He could have bought any MASON COUNTY BOARD OF HEALTH August 3, 1995 - Page 16 of 17 lot for that kind of money and paid $5000 or $6000 for it and drilled a well. As far as hooking up, nobody ever said anything to him. He hooked up and figured he would pay the bill when they sent it. He knew he would have to pay the $129 per year for water rights and never disputed that fact. Never did. But as Timberlake kept saying, he didn't want to pay the money and then have them chop him off until this thing was resolved. He stated he would pay today if they would resolve the issue. Now another issue has come up. Now, Mr. Heckler, he just heard, was saying there was a new deal in the bylaws that a mobile over 10 years old was disallowed, and they still don't have'to sign it. Now he felt he was over a barrel again. Now, if this gets straightened out and he goes to get the thing signed, they can say they aren't going to sign it because my mobile was more than 10 years old. He wondered where it would stop. He was just a working man. He just wants what he paid for. Thank you. Mr. Heckler restated for the record that the last time prior to today that he talked with Rick Aitken was the day he came to him for a water adequacy permit with the permit in hand, and he had done what he had explained before and that was well before his mobile home was brought in for storage on that lot. Had he gone through the building permit process the first time they had asked him, he would have been cleared because at that time the deal on older mobile homes was out in obeyance. He could have brought in that type of a mobile home at that point in time had he just gone through the building permit process. This deal of offering to go through the process, yes, each time he had talked with him prior to the last he had offered to go through the building permit but never did it. He had said no problem, he would take care of it, but he didn't. If he said he worked and has a hard time getting there, we could have mailed it to him. The avenue was there and it was chosen to be ignored and he had not talked to the man after his mobile home came on. He did not talk to him after the water hookup was there because he had a problem with the hookup being there and he had wanted it out, but the rest of his board would not back hire. He believed the rest of them wanted it out but didn't want to go against Mr. Brown, and give this man a chance.' He doesn't know how many other ways he could say it. Thank you. Board Members Hunter and Cady noted they had no additional questions. Board Members Cady/Hunter moved/seconded that the hearing be closed subject to receipt of the paperwork from the Health Department,Mr.Whitehouse and Mr.Heckler which had been requested. Motion carried. Vote: H: yes; C: yes; F: absent. Board Member Hunter noted that as soon as the documentation was received, they would prepare a finding, conclusion and order. He stated that, personally, it would not be an easy one to follow through all the information they have heard today. He thanked everyone for coming and making their presentations. Board Member Cady stated they would try to make their decision by the end of the month. HEALTH SERVICES POLICY MANUAL The Board set aside this matter until the next Board of Health meeting. a MASON COUNTY BOARD OF HEALTH August 3, 1995 - Page 17 of 17 Board Members Cady/Hunter moved/seconded that the next Board of Health meeting be rescheduled because of conflicts with September schedules, to August 31st, 1995, at 10:00 a.m. Motion carried: Vote: H: yes; C: yes; F: absent. ADJOURNMENT Board Members Cady/Hunter moved/seconded that the Board of Health meeting be adjourned. Motion carried: Vote: H: yes; C: yes; F: absent. MASON COUNTY BOARD OF HEALTH ARCF�� M. L. Faughender, Chairperson -7z)-e© Q -e; William O. Hunter, Board Member Maly J ad Board Meer Respectfully Submitted, Lorraine Coots