David Alvarez, chief civil deputy prosecuting attorney for Jefferson County, has reversed course from a decision he made last year regarding Port Ludlow Drainage District elections, and supported April 6 in a news story published April 8. According to an email he sent April 8, "The current Auditor is requested to work with the PLDD Commission based on this new interpretation, i.e., that the condo owners are qualified voters."

A news update is listed first, followed by the original April 8 story:

UPDATE 5 p.m. April 8:

The Jefferson County Auditor's Office has been instructed to change how it handles Port Ludlow Drainage District elections, starting with the 2016 election.

David Alvarez, chief civil deputy prosecuting attorney for Jefferson County, has reversed course from a decision he made last year, and supported April 6 in a news story published in the Port Townsend and Jefferson County Leader's April 8 issue.

In an email sent April 8, Alvarez addressed the questions about whether a condominium owner whose condo is located within the boundary of the Port Ludlow Drainage District (PLDD) is a qualified voter, i.e., qualified to vote for PLDD Commissioners. It's one of the complicated laws that applies to a special taxing district such as a drainage district.

Last year, Alvarez instructed Donna Eldridge, then county auditor and in charge of elections, that his interpretation was that individual owners within condominium associations were not eligible to vote, or be elected a PLDD commissioner.

The ruling came up during the February 2014 election campaign with two commissioner positions, and four candidates, on the PLDD ballot. One of the incumbents was Elizabeth Van Zonneveld, a condo unit owner.

Alvarez noted April 8 that his initial advisory is opposite that of two other lawyers: Shane Seaman, the PLDD's contracted attorney, and an "informal" opinion by Peter B. Gonick, deputy solicitor general, Office of the Attorney General.

Alvarez learned April 6 of Gonick's opinion, from the Leader.

"Each of these is just an opinion from a lawyer and I hold to my conclusion that having condo owners vote in an election held pursuant to Ch. 85.38 RCW goes against the policy in that state statute of having land (not persons) vote," Alvarez stated April 8 in an email to Rose Ann Carroll, Jefferson County auditor.

"However, based on the Horizontal Property Regime Act, which governs most condominiums, and because the owners of a condo (in general) own not only the interior of their unit but ALSO an undivided fractional interest in the building and real estate where their condo is located, it is a reasonable interpretation of the definition of qualified voter found in RCW 85.38.010(3) to conclude that a condominium owner is an owner of land and thus a qualified voter for purposes of the next election for the PLDD Commission.

"This is a different interpretation of the law than the one applied by former County Auditor Donna Eldridge to prior PLDD elections," he noted.

Alvarez said it is the obligation of the PLDD Commission under RCW 85.38.110 to “prepare and maintain” the “list of presumed eligible voters.” It will be up to the PLDD to work with the auditor and the assessor to get the names and addresses of those persons the PLDD Commission considers to be eligible voters. The PLDD must prepare this list before Nov. 1, 2015 for the election to be held in February 2016, again according to RCW 85.38.110. If that deadline is missed, then the County Auditor must compile the “list of presumed eligible voters.”

"The current Auditor is requested to work with the PLDD Commission based on this new interpretation, i.e., that the condo owners are qualified voters," Alvarez concluded.

ORIGINAL STORY 7 a.m. April 8

An informal opinion from the state Attorney General's office supports Elizabeth Van Zonneveld's contention that Jefferson County incorrectly challenged her ineligibility to hold office in the Port Ludlow Drainage District (PLDD).

Van Zonneveld, who had been appointed to the drainage district's three-member board in 2012 and was up for election in 2014, is an owner within one of four condominium associations that pay PLDD assessments.

Unique state laws and rules apply to condo owners and special taxing districts like the PLDD. The Jefferson County Auditor's Office, under its interpretation of state law, issued PLDD ballots to condo associations and homeowner associations as an entity, not to individual members of those associations.

Van Zonneveld had registered with the county as a PLDD candidate and her name was on the PLDD ballot. The PLDD could conduct its own election; instead, it uses the county elections department.

The eligibility question arose in the three weeks prior to a February 2014 PLDD election, and was well publicized. David Alvarez, the county's chief civil attorney, advised the county auditor that Van Zonneveld was ineligible for the 2014 election.

The election was conducted on schedule. Van Zonneveld lost to Jim Boyer by 32 votes. Allen Uyeda, who had also been appointed in 2012, won by 28 votes over Arthur Moyer.

The county commissioners did not respond to Van Zonneveld's immediate request to defer certification of the Feb. 4, 2014 election. The state auditor's office instructed the county auditor to proceed and certify the election.

Van Zonneveld decided against legal action, which she estimated would have cost her $30,000. She asked 24th District Rep. Steve Tharinger, D-Port Angeles, to seek an opinion from the state attorney general's office.

STATE OPINION

What is being labeled as an informal opinion, not being published as official opinion, was issued to Tharinger in November 2014. Van Zonneveld only received her copy about two weeks ago.

Peter B. Gonick, state Office of the Attorney General deputy solicitor general, supported the rights of a condo owner to be a PLDD voter and commissioner.

"Although there is room for reasonable people to disagree, my conclusion is that the owner of a residential condominium that is governed by the Horizontal Property Regimes Act, located within the boundaries of a drainage district, satisfies the property ownership requirements of RCW 85.38 for serving as a member of the district's governing body," Gonick wrote in a letter dated Nov. 18, 2014. (The AG letter is posted with this story.)

"I acknowledge that an argument could be made for the opposite conclusion," Gonick wrote. "The treatment of condominium apartments as real estate and parcels of land can in some circumstances amount to a legal fiction, causing tension with statutes regarding drainage districts and drainage improvement districts that focus on the physical attributes (such as acreage) of land. For example, in special district elections, qualified voters generally receive two votes to case in each election. RCW 85.38.105. But landowners within drainage improvement districts and flood control districts who own more than 10 acres of land receive an additional two votes per 10 acres, up to a maximum of 40 votes. RCW 85.08.025; RCW 86.09.377. This appears to be a legislative recognition that drainage and flood control affect landowners in proportion to the condominium apartment owner rather than two votes to the condominium homeowner's association for the building as a whole. Providing two votes to each condominium apartment owner could also give condominiums voting power disproportionate to the physical land affected by decisions of the drainage district.

"Nevertheless, I conclude that condominium apartment owners are 'owners of land' and qualified voters in a drainage district for two reasons," Gonick wrote. "First, although the legislature has recognized that large landowners should receive a greater number of votes than smaller landowners, it has not set any minimum acreage for landowners to receive votes. Therefore, the legislative recognition that drainage district actions affect landowners proportionate to acreage is not absolute. Second, although the consideration of a condominium apartment as a parcel of land may be considered a legal fiction, it is a legal fiction that the legislature apparently intended to have legal effect. While treating a condominium apartment as a parcel of land may fit more neatly with some land-related statutes than others, absent a conflict between statures, the HPRA statutory language guides the result. These are, of course, policy matters the legislature may choose to clarify."

COUNTY POSITION

Jefferson County's Alvarez, when informed April 6 of the AG opinion, stood by his original decision.

"I still believe I made a correct interpretation of the law in that a drainage district exists to protect acreage and land rather than units inside a building," Alvarez said. "The county's position all along is that condominium owners had never voted, so why are they eligible to sit on the board?"

Van Zonneveld said that condo ownership makes up nearly 20 percent of the property owners who pay PLDD property tax assessments.

"I am trying not to be bitter about Alvarez and the hatchet job that was done on me during the course of that election," Van Zonneveld said April 3. "I really don't think I am going to be interested in going back to the drainage district [as a candidate]. I'm more interested in whether they promise to respect the eligibility and ownership of a big chunk of their constituency."

Dwayne Wilcox, PLDD commission chair, said he has always supported condo owners as being eligible for PLDD voting. He did not expect the PLDD board to discuss the issue when it meets in regular session at 10 a.m. Thursday, April 9 in the Beach Club.

"It should have been that way all along," Wilcox said. "It was the county that wanted to get involved in the election and not us."

The PLDD was formed by public vote in 2000. There have been only three commissioner elections since, in 2002, 2010 and 2014. There was no competition for commissioner seats in other election years so the PLDD filled them by appointment – a practice which one government watchdog has challenged, suggesting the county commissioners should make such appointments.

The next PLDD election is in early 2016, when Uyeda's seat is up for a six-year term.

PLDD BUSINESS

PLDD operations began to change in 2012 after the Rainier Lane to Oak Bay Road Greenbelt project was halted by the state Department of Fish and Wildlife, backed up by opposition from 371 landowners. The plan was to spend about $859,000 on a project that would remove 48,000 square feet of vegetation, according to project documents. The subsequent backlash led to changes on the PLDD commission.

The PLDD had qualified for a $666,400 Public Works Trust Fund loan, which the PLDD later decided could at least partially be applied to another, smaller project. The state's deadline passed and in February 2015, the loan was rescinded. Van Zonneveld noted last week that it was a shame the PLDD let that loan escape.

Wilcox said the PLDD board decided that reserves and assessments would cover a $30,000 project on Trader Lane which is to start this week, and a future project to resolve the Rainier Lane issue.

"We are still working that area," Wilcox said April 3. "We've contacted all the homeowners and a project is still going to be done. We're really watching our budget, and spreading out our projects over two years."

Wilcox is pleased with how the PLDD has operated since the 2014 election, saying Jim Boyer "has done an excellent job," and so has Uyeda.