By Ann McCreary
A judge has ruled that the Washington State Department of Transportation (WSDOT) can acquire a small piece of private property through condemnation to complete repairs to flood-damaged Highway 153 at Benson Creek.
The property, owned by Patrick Fitzgerald, “is necessary for the construction, maintenance and operation of SR 153, which is a public use,” said an order issued Jan. 12 by Okanogan County Superior Court Judge Christopher Culp.
Culp heard arguments in December to determine whether WSDOT officials’ desire to obtain land belonging to Fitzgerald qualified as a necessary and public use.
The land in question is .01 acre that lies on the river side of Highway 153, below the outlet of a new culvert installed at the mouth of Benson Creek after water and debris brought down by thunderstorms destroyed a section of highway.
State transportation officials want to install large boulders on the small segment of Fitzgerald’s property to finish armoring the channel below the outlet to prevent erosion from water flowing out of the new pipe.
The state has already installed boulders to armor state-owned property beneath the culvert adjacent to Fitzgerald’s parcel.
Transportation officials also sought a temporary easement of .04 acre on Fitzgerald’s property to allow them access to complete work on the project.
Culp ruled in favor of the state’s motion for the permanent acquisition as well as a temporary easement that will end on July 1, 2015.
The next step in the process requires that a trial be scheduled to determine the compensation and damages to be paid for taking the property.
Fitzgerald, a logger whose home is next to Highway 153 just north of Benson Creek, refused to let transportation crews onto his property to repair the damaged road because he disagreed with WSDOT’s design for a new culvert. His refusal to allow crews on his property caused delays in the work and in reopening the highway after the Aug. 21 storm.
Fitzgerald predicted that the volume of debris that could come down from the watershed, which was badly burned in last summer’s Carlton Complex wildfire, would overwhelm the culvert.
Fitzgerald, through his attorney Michael Brady, argued that WSDOT had not taken into consideration post-fire studies that predicted debris flow in the drainage could increase by 5,529 percent.
In a letter accompanying his order, however, Culp said disagreements over the culvert design were not relevant because the law only requires the court to rule on whether the property is a necessary and public use.
“Mr. Fitzgerald may be correct in his contention that the replacement culvert … is insufficient; a bridge or a lager arched, fish-friendly culvert may be preferable and prudent,” Culp wrote.
“However, whether a better alternative solution is available is not the issue before this Court. The issue instead is simply whether Mr. Fitzgerald’s land is necessary for the State to acquire for a public use, public interest requires it and the property is necessary for the purpose of … fixing the roadway and maintaining it,” the judge said.
Fitzgerald said Tuesday that he is entitled to a jury trial to determine the compensation to be paid by the state for his property.
“I’m going to fight them on that too. I’m going to fight them all the way,” he said.
He said he is no longer being represented by Brady and does not know if he’ll hire another attorney.
Fitzgerald said he is building reinforcements around his home, using logs anchored by steel rods driven into the ground, to protect his house from potential future flooding.
