By Ann McCreary
State transportation officials will take condemnation proceedings to court to acquire property from Patrick Fitzgerald, who lives at the mouth of Benson Creek where flash flooding destroyed a section of Highway 153 last summer.
Fitzgerald has objected to the way the Washington State Department of Transportation (WSDOT) repaired the highway after intense rainstorms on Aug. 21 brought down mud and debris from hillsides burned bare of vegetation by summer wildfires. He has refused to sell a small parcel requested by WSDOT for highway repairs and denied access to his property.
Fitzgerald has asserted that a new 8-foot-diameter culvert, installed to replace the washed out 3-foot-diameter culvert, is inadequate to handle the volume of sediment that could result from future storms, and poses the risk of future washouts that could jeopardize his home and property.
Transportation officials want to acquire a small piece of Fitzgerald’s property on the river side of Highway 153 below the outlet of the new culvert in order to install large boulders to armor the channel against erosion from water flowing out of the pipe.
In an administrative hearing last week at WSDOT regional offices in Wenatchee, Fitzgerald submitted written testimony citing a Burned Area Emergency Response report that predicted water flow from Benson Creek could increase by as much as 5,529 percent in a two-year storm event, and debris flow could increase by 11,581 percent in a 25-year storm event as a result of damage to the drainage from the Carlton Complex wildfire.
“The new 8-foot-diameter culvert under highway 153 is too small … only about seven times the volume of the old, 3-foot culvert. But the volume of debris coming down at the mouth of Benson Creek after last summer’s fires is, according to the best estimate available, expected to increase more than a thousand-fold,” Fitzgerald said in his written testimony.
“WSDOT is replacing the bottleneck at the mouth of Benson Creek with a bottleneck that is only about seven times bigger in volume,” Fitzgerald said.
If the culvert plugs up, water and debris could threaten his home, “200 feet from Benson Creek and lower than the highway 153 roadbed,” Fitzgerald said.
Following the administrative hearing, WSDOT informed Fitzgerald in a letter that it would “turn the matter over to the [state] Attorney General so that the question of the market value of your property may be determined impartially by the court.”
Michael Brady, a Winthrop attorney representing Fitzgerald, said the issue is not the market value of the property, but a disagreement over the design of the repairs to the highway.
“If the state were putting in an adequate culvert for what will be coming down from Benson Creek, Mr. Fitzgerald would give them the land,” Brady said.
The condemnation issue will be heard before a jury in Okanogan County Superior Court, but will only focus on the market value of the property, not questions about the design of the road repair, said Farzan Farivar, WSDOT assistant real estate manager.
“The court only decides the market value,” Farivar said. “There are specific instructions from the judge to the jury only to consider market value.”
In a letter to Fitzgerald, the state offered $1,100 for the parcel, which is about 440 square feet.
In this case, the window of opportunity to challenge the design may be past, Farivar said.
“People have the opportunity to challenge the design and bring an injunction action. In this particular instance we are past that point. The road is open. We had a lot of verbal objections [from Fitzgerald]. But nothing came through as far as a formal injunction.”
Three sections of Highway 153 — at Benson, Leecher and Canyon creeks — and about 4 miles of Highway 20 were damaged during the floods and mudslides in August.
WSDOT revised design plans for the Benson Creek repairs to work around Fitzgerald’s property, after he refused to sell land or allow construction workers onto his property. The length of the culvert was shortened and a retaining wall was built to reinforce the slope alongside the southbound side of the road as part of the revised plans to avoid encroaching on Fitzgerald’s land.
WSDOT completed a significant amount of the repair work with federal funding under a 30-day emergency contract, but that contract expired last week, requiring the state to request bids to complete the remaining road work, which includes installing guard rails and reinforcing eroded areas along both highways.
“Our plan is to open the bids on Thursday (Oct. 23) and if everything goes well hopefully we’ll be back to work around the end of next week, or possibly the following week.” said project manager Kevin Waligorski.
“I’ll know more on Friday when we find out who our contractor will be and how quickly they can execute the contract and mobilize in to perform the work,” he said.