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Spokane County workers use Fifth Amendment in back-dating case

Thu., May 22, 2014, midnight

Two Spokane County building employees invoked their Fifth Amendment rights against self-incrimination this week in a case that accuses the county of improperly back-dating documents to allow construction of a gas station where a state board ruled it was not allowed.

The county workers testified Monday during an appeal before the county hearing examiner of a building permit application for a convenience store and gas station at Argonne and Bigelow Gulch roads.

Building Director Randy Vissia, one of the two county employees who invoked his Fifth Amendment rights, said he was advised to not answer questions by a county attorney even though, according to Vissia, his employee, Julie Shatto, had done nothing wrong in approving the permit application as completed. Shatto also declined to answer questions at the hearing involving the date that the application was certified as complete.

Property owner and developer Stephen Smart, who was at the hearing to defend his project, said the appellant attorneys were acting like “attack dogs.”

Local residents and neighborhood groups appealed the county decision to let the project proceed, arguing the project was flawed on several grounds, including environmental review and application completeness.

Their attorney, Rick Eichstaedt, asked the question that the two county workers declined to answer. Eichstaedt said the county employee back-dated a document to allow the project to move forward under state “vesting” law, and that the back dating is arguably illegal.

The dispute has much deeper roots, however.

It traces to an ongoing conflict over expansion of the urban growth boundary by Spokane County Commissioners and subsequent rulings that those expansions were an overreach under the state’s Growth Management Act.

Each time the county commissioners expand the boundary, developers within the expansion move quickly to “vest” their development rights before an appeal reverses the expansion. The boundary determines where more intensive development is allowed.

On Tuesday, the state court of appeals ruled in another case that county commissioners overstepped their authority in expanding a boundary in 2005 on Five Mile Prairie.

Residents appealed the boundary expansion and won, but the developer succeeded in vesting a project and getting it built.

The appeals court faulted the county for not complying with state growth law before granting an urban growth expansion. The appeals judges also said the hearings board must become more active in requiring counties to comply.

Last July, county commissioners approved a controversial 4,100-acre expansion of the urban growth area in a major update of the county’s growth law.

That expansion was invalidated by the state’s Growth Management Hearings Board in November and sent back to the county commissioners for more public input.

Last year’s expansion included Smart’s property at Argonne and Bigelow Gulch. In order to be vested, Smart’s application would have had to have been complete by the time the board made its ruling in November.

Smart said that he moved quickly to submit his application and have it deemed complete so that if an appeal was successful, he would have vested development rights.

The site currently holds Smart Gardens, a nursery and coffee outlet, but Smart has wanted to expand with a store and fueling facility for about 20 years, he said.

He said he spent $150,000 last summer getting the property ready, including installation of a 12-inch water line.

Eichstaedt said he discovered that Shatto had back-dated the certificate of completeness from January to August during his investigation of the case.

“I tried to ask them if it was normal for you to issue these kinds of documents, and he (Vissia) wouldn’t answer,” Eichstaedt said.

Vissia explained in an interview Wednesday that Smart’s application satisfied county requirements for completeness in August, but that environmental review of the project had not yet been finished.

In a Feb. 4 email to Smart, Shatto said, “Attached please find an amended Determination of Completeness for your records for the above noted subject. It was brought to my attention yesterday that I had erroneously input the wrong date that the county building and planning department had determined your application to be complete.”

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