OLYMPIA — Joe D’Amico, president of Security Services Northwest, has filed a petition asking the Washington Supreme Court to review a Court of Appeals decision, saying he was not given a fair hearing under the Land Use Planning Act process.
D’Amico, through his Seattle attorney Alan Middleton, asks that the state’s high court review whether the state Court of Appeals erred in ruling the company’s appeal for damages from the Jefferson County as “frivolous” when no prior decision had been rendered by a state court.
Seattle attorney Mark Johnsen, representing the county in the case, said he plans to file a response to the petition requests on behalf of the county, saying the county does not believe the court will hear the case upon review.
The Appeals Court handed down the decision last month and D’Amico filed his petition with the Supreme Court on Monday.
D’Amico’s attorney is asking the court if “collateral estoppel” applies to an appeal under the Land Use Petition Act.
Collateral estoppel, also known as issue preclusion, is a doctrine that prevents a person from relitigating an issue.
The rationale behind issue preclusion is the prevention of legal harassment and the prevention of abuse of judicial resources.
“This really surrounds the ex parte communication between the prosecuting attorney’s office and the hearing examiner,” D’Amico said.
He asked for damages from the county, alleging that the county prosecuting attorney’s office discussed the case with former county Hearing Examiner Irv Berteig outside of the courtroom setting, which was unfair to his case.
Whether he can recover damages from the county is the crux of the matter, D’Amico said, and he and his attorney believe the Court of Appeals was in error in its May decision that called D’Amico’s argument “devoid of merit,” a position supported by Jefferson County’s attorneys.
Court awarded county fees
In its most recent decision, the Court of Appeals awarded the county its reasonable attorney’s fees and costs, amounting to nearly $18,0000.
D’Amico has already written the county a $50,000 check for the first wave of legal fees and expenses the county incurred in his original lawsuit over the county’s shutting down his original operation that brought in police and military personnel for weapons training at his “Fort Discovery” gun practice ranges in 2005.
D’Amico has pegged his legal expenses at about $800,000.
D’Amico’s protracted legal battle with the county began in June 2005 when the county Building Department issued a stop-work order against him, red-tagging three structures without county permits that D’Amico built to expand his business enterprise on the 24-acre Fort Discovery site.
Security Services Northwest is headquartered on Discover Bay on western-shore property owned by the Gunstone family.
The county’s action coincided with complaints from Discovery Bay-area residents, who said they could hear loud, repeating gunfire and other explosions resounding across the placid bay.
Many of them testified that the gunfire was disturbing.
Another group came forward in support of D’Amico’s military training efforts, saying the gunfire was “the sounds of freedom.”
D’Amico’s business location, in what today is a rural residential area, existed before county planning and zoning laws established in 1992, and early arguments surrounded whether as a legal non-conforming business he could train his security staff, police and military personnel in weapons and tactics on the property.
The hearing examiner ultimately limited the number of employees D’Amico could have at his business to 18, restricting gunfire practice training to only Security Services employees for state certification.
Shooting range training is no longer allowed for police or military personnel.
Neither Middleton nor the county’s attorney, Mark Johnsen of Seattle, was available for comment Thursday.
Johnsen said Security Services Northwest certainly has the legal right to ask the state Supreme Court to review the case.
“The county is confident the Supreme Court will deny the case,” Johnsen said Friday.
He said the court only accepts between 10 and 15 percent of the cases it reviews.
Middleton called the appeals court decision incorrect.
“I think that the Court of Appeals failed to address many of the arguments that we made,” he said.
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Port Townsend-Jefferson County Editor Jeff Chew can be reached at 360-385-2335 or at jeff.chew@peninsuladailynews.com.