Shelter Bay must pay $92,513; loses Rainbow Park clearcut appeal

Last Friday, Dec. 3, $92,513 in fine and penalties were upheld by the Swinomish Planning Commission against the Shelter Bay Community, Inc. and Steve Swigert, a resident and board member. Swigert removed, without approval, “substantially all of the trees in Rainbow Park and on the greenbelt adjacent to his property” over the 2020 Labor Day weekend, the decision states. Swigert was indemnified – insured against legal action – by the Shelter Bay board of directors in January.

The fine, primarily $80,000 in penalties, was paid in June, but Shelter Bay appealed and their case, which was delayed from July, was heard last week. Everyone in Shelter Bay had been kept informed over the last year by the board of this clearcut case. Rainbow Park is on the west side of the Swinomish Channel at the edge of Shelter Bay’s leased land, just south of the Rainbow Bridge.

There are reams of paper from exhibits, board meeting minutess, applications, permits, letters and emails about this case. Only the motives and purposes are under dispute as the evidence is plain, as stated in the Commission’s finding of fact:

“Swigert used a chainsaw to cut the trees, removed the stumps, and excavated and graded the top soil. The Chair of the Greenbelt Committee visited the site on Sept. 9, 2020 and was shocked to find ‘nothing left on the hillside,’ and stopped the work. She stated later: ‘It was not a Firewise cut, it was a total clear cut.’”

The Shelter Bay board admitted that Swigert’s tree removal violated the Swinomish Tribal Code. The dispute and reason for the hearing was whether or not the amount in statutory damages was appropriate.

The board defends Swigert’s work as an authorized volunteer and not as an individual resident.

Tribal lawyers and Commission staff argued that the penalty was consistent with Swinomish law and federal law and not arbitrary or capricious in the determination that Swigert benefitted economically as a result of his clearcutting trees below his property, creating a view worth up to $45,000, based on a real estate expert from John L. Scott Real Estate.

The $80,000 fine is a doubling of a $40,000 increase in Swigert’s property value as a result of the clear cutting improving the view.

Tim Good, also a real estate broker, spoke for Shelter Bay, asserting the view Swigert created had no, or possible negative, value. The Commission rejected Good’s assessment.

The Commission agreed that the statutory damages were appropriate for the violation. It also noted a Madrona tree removed and found there is an “intrinsic value to the land and trees at Rainbow Park due to the tribal cultural history and heritage of the area.”

The Commission pointed out that Swigert was a responsible party indemnified by Shelter Bay, though he “grossly exceeded the permission granted to him by the Greenbelt Committee and the laws of the Tribe, and he was the primary beneficiary who personally gained from the wrongful action,” the decision states. Swigert’s statements to the Shelter Bay board “disclaimed responsibility, claimed that he did not ask for the trees to be removed, stated that he saved Shelter Bay money and continued to wrongly assert that all common-area trees must be maintained at 15 feet in Shelter Bay.”

The Commission agreed that the “statutory damages imposed by the Planning Department are appropriate and commensurate to Mr. Swigert’s actions and the increased property value that he now enjoys as a result of his conduct.” They affirmed the Planning Department’s penalty.

The Commission received 124 pages of written public comment from Shelter Bay residents. Comments were heavily against the tree-cutting, about 3-1, contending it despoiled Rainbow Park and was unauthorized. The supporting comments noted it removed dead trees and saved the Greenbelt Committee several thousand dollars by not hiring out the work.

A 19 member private Facebook group calling itself Shelter Bay Town Hall, formed in September, is discussing actions the community can take against its board of directors, including recalling board members or new elections.

In January Carole Miller, chair, and Susan Brown vice-chair of Shelter Bay’s Greenbelt/Lot Committee, resigned the day the board of directors indemnified Swigert.

Shelter Bay residents were sent copies of the 12 page decision and order Monday by the community’s staff.

The Tribe is not making statements or comments because the decision is subject to potential further appeal, Stephen LeCuyer, director, office of the tribal attorney, wrote in an email Dec. 3.