Complaint: Planning commission member profited from his role

Merle Ash, a consultant for Frognal Estates, denies pushing a code change to help the project.

EVERETT — Opponents of the controversial Frognal Estates development have accused a member of the Snohomish County Planning Commission of using his position to propel the project forward to benefit his land-use consulting business.

Bill Lider and Linda Gray, longtime objectors to the plan to build 112 homes on 22 acres near Picnic Point, have said commission member Merle Ash supported nixing a buffer zone requirement that stood in the way of Frognal Estates. The pair, who have for years repeatedly voiced concerns about the potential conflict of interest, filed a formal complaint with the county’s Ethics Commission on Aug. 3 after the County Council reappointed Ash last month to serve another four-year term on the planning commission.

“Mr. Ash either needs to resign his position or be removed by the County Council,” says the nine-page complaint, accompanied by 100 pages of exhibits.

Ash, who was first appointed to the commission in 2014, denied that he’s used his post for personal gain. The 2019 county code amendment, which allowed developers to grade and clear up to property lines, didn’t benefit the Frognal Estates project, he said. He and other developers expressed support for the rule change because it had the unintended consequence of creating a dangerous and unsightly “no man’s land” of unused space along the edges of newly built neighborhoods.

“There’s nothing that I’ve done on the planning commission that benefits me in any particular way,” Ash said. “There’s just too many rules and checks, for one thing, to ever allow that to happen.”

Lider and Gray also alleged in the complaint that county Executive Dave Somers acted unethically by endorsing the code change and then accepting campaign donations from Ash and the Frognal Estates’ developer the day after the County Council passed the amendments.

Ash acknowledged that he’s active in politics and has supported Somers but said the timing of the donations was merely a coincidence.

Ash’s firm, Land Technologies, contributed $1,500 to Somers’ 2019 reelection campaign and Everett developer Integral Northwest provided another $2,000, according to campaign finance records.

Ethics Commission Chairperson Giuseppe Fina dismissed the portion of the complaint against Somers in an Aug. 7 order, saying Lider and Gray failed “to provide a detailed factual description of an alleged violation” or cite the specific provision of the code of ethics that Somers may have broken. The complaint against Ash, though, met the legal requirements to proceed, Fina found.

The commission will ultimately decide whether Ash broke the ethics code and what the penalty is.

The County Council has the option to remove members of the planning commission for malfeasance.

Council members, though, have said Ash’s extensive land use experience is an advantage for the planning commission.

“Merle has an outstanding resume. I think he’s very knowledgeable in the area, and I think he’s done a great job,” said County Councilman Sam Low. “These accusations that these people are lobbing are sickening, and I am disgusted by them.”

Lider, an engineer who serves on the board for the Sno-King Watershed Council, is a vocal critic of many county developments.

He, Gray and others echoed the allegations against Ash on July 22, when the County Council voted 4-1 to reappoint Ash to the commission, with Councilwoman Megan Dunn opposed.

“Merle Ash is a qualified candidate with unique professional experience,” Dunn said in a statement. “However, our council offices received numerous emails from constituents who raised serious concerns about his reappointment.”

She moved during the meeting to postpone the vote until those claims could be properly investigated, but her motion failed.

County Council Chairman Nate Nehring, who nominated Ash for reappointment, told The Daily Herald he brings balance to the planning commission.

“I don’t have any reason to believe that there’s merit to the complaint,” Nehring said.

County planning officials also dispute the allegations.

“We do not believe this complaint is based on the facts of the case, and we expect to make that argument to the Ethics Commission,” Mike McCrary, deputy director of county Planning and Development Services, said in a statement. “We are confident they will agree with us.”

The ethics complaint is the latest wrinkle in the saga of Frognal Estates, which dates back to 2005, when the first permit application for the subdivision was submitted under the name Horseman’s Trail.

The project’s opponents have argued that the development would create landslide risks on steep and environmentally sensitive land.

The developer prevailed in a series of court battles over the project, although it must still address drainage and slope stability on steep terrain south of Mukilteo.

“We met every one of the legal requirements all the way through the process,” said Ash, one of the authors of the project’s 2015 environmental impact statement. “This project was purely approved on merit and law.”

But because of hangups in the financing plan, the project’s backers filed for Chapter 11 bankruptcy late last month in hopes of reviving its ailing bottom line.

Developer John Lakhani, of Integral Northwest, has insisted that the homes will still be built as planned.

A foreclosure auction of the Frognal Estates property, initially set for late July, has been pushed to Aug. 28.

The developer is also still awaiting the approval of the project’s sewer plans from the Alderwood Water and Wastewater District, said John McClellan, the district’s engineering and development director.

Integral Northwest owes Ash’s firm more than $200,000, according to the bankruptcy petition the developer’s attorneys filed in U.S. Bankruptcy Court in Seattle.

The ethics complaint alleges that his firm submitted drawings in spring 2018 for the subdivision that showed no setbacks between retaining walls and neighboring property lines — which would have then been a violation of county code.

But Ash provided a more detailed drawing to The Herald that shows buffer zones along the development’s boundaries were part of the plan from the start.

The complaint also says that the site was illegally cleared up to the property lines before the setback requirement was nixed.

Then, in October 2018, Ash was one of six planning commissioners to recommend allowing development activity up to property lines.

“He definitely should have recused himself,” Gray said.

At the time, proponents of the change argued that the setbacks — often closed off by fences or retaining walls — became magnets for trash, rodents and squatters. Those opposed said removing the requirement could lead to tree roots being damaged and neighbors being forced to let workers onto their properties for maintenance and construction.

The County Council passed the code change in January 2019, with a provision that would lift the buffer zone requirement retroactively for projects that applied for land disturbing activity permits since early 2016.

“We brought it up immediately, saying this appeared to be an ethics violation, with the hopes that someone from the county would investigate but they didn’t,” Gray said. “We’re just putting forward the facts.”

Ash now has fewer than 20 days to submit a response to the complaint, according to county code. Fina will then issue a preliminary decision, which will say whether a hearing is necessary to resolve the complaint. Other commission members may agree with the preliminary decision or ask for a hearing if one isn’t proposed. If no hearing is requested, the preliminary decision becomes final. Or, a hearing will be held and the commission will determine whether the ethics code was broken at its conclusion.

This story and its headline have been modified to correct Merle Ash’s role on the Snohomish County Planning Commission.

Rachel Riley: 425-339-3465; Twitter: @rachel_m_riley.

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