Port residents’ protest puts commission in rough water

POULSBO — A difference of interpretation of the law has resulted in a conflict between the Port of Poulsbo and two of its tenants that may result in an eviction for the tenants.

Both sides have characterized the quarrel as “a shame.”

In January, married couple Charles Leader and Nan Mader refused to allow Port of Poulsbo staff to inspect their live-aboard boat. Apparently, since 2001 (port staff are still researching the issue), the port has required all live-aboard vessels be inspected annually to ensure they comply with Coast Guard regulations for sewage disposal and fire suppression, and also that the boat is operational.

The port twice held off eviction proceedings to give Mader and Leader the chance to consent.

“(Mader) signed her agreement in February 2002 and in there it states that we will do an annual inspection in January,” Commissioner Tony DeCarlo stated of the port’s position. “She chose not to allow that, so she’s in violation of the agreement she signed.”

Mader and Leader have resided at the Poulsbo Marina for the past 18 years and are currently one of seven live-aboard tenants at the port. Mader told the Port of Poulsbo Commissioners at their Feb. 6 meeting that she did not question the port’s right to inspect live-aboards, only its right to do it annually.

“What more are you going to look for annually if you know we have an adequate sewage system?” Mader asked the commissioners. “You know our boat runs. Why annually? We feel that this is discriminatory and we feel it’s harassment by the port.”

At their Feb. 6 meeting, commissioners also reviewed the opinion of their legal counsel Gregory Norbut, who said he did not agree that live-aboard inspections constituted harassment.

“In the absence of a suspect class, discrimination can be justified upon any rational basis. In this case, (live-aboards) are subject to inspection in order to (ensure) compliance with issues associated with sewage disposal and public safety generally. Under the circumstances, there is a rational basis for requiring (live-aboards) to submit to an inspection by the Port,” a Jan. 27 letter from Norbut stated.

Mader countered that the attorney’s letter did not mention the word “annual,” which was her sticking point. Commissioners decided to stay the issue and Leader and Mader’s eviction process until the point could be clarified with Norbut.

At its March 6 meeting, the commission reviewed a second opinion by Norbut, dated Feb. 10, that stated:

“When we are dealing with a legitimate public purpose in order to provide the general welfare of the public it must be balanced against the fundamental rights of the individuals. In this case, although, the individuals were living aboard vessels within the Port of Poulsbo have their vessels in a public facility they still retain ownership of the vessel itself. The vessels constitute their homes, therefore, in my judgement the port has no greater right to invade the vessel owner’s privacy then would any other public entity to invade your right to privacy in your individual homes.”

Norbut’s second opinion further said that he believed once a live aboard had been inspected one time by the port that annual inspections should not be required.

DeCarlo said besides Norbut’s opinion, the commissioners also sought council from the Washington Public Ports Association (WPPA), which said that annual inspections were legal. DeCarlo added that WPPA told Poulsbo commissioners that there are other ports that require such inspections.

This additional council was one of the reasons commissioners decided at the March 6 meeting to keep the annual live-aboard inspection requirement, he said.

“Basically there were the first comments and then the second comments where he said (Mader) had some right to privacy but in the same token the Coast Guard can board anyone’s boat at any time so it’s not exactly the same thing,” DeCarlo explained.

The commissioners gave Mader and Leader a March 20 deadline to submit to the inspection or be evicted. Since March 11, the couple has moved off the boat and Mader said she still contends that the port is in the wrong.

“I was just so stunned at that meeting when they disregarded the legal council’s advice,” Mader said. “Our intention was we certainly would have abided with whatever the attorney said.”

Mader also argues that annual live-aboard inspections were actually started in 2001 by then Commissioner Ken Burns. She said the first year, hers was the only vessel inspected and she felt it was purely an act of harassment. Mader also feels the continuation of the policy is discrimination against one group of tenants at the port.

“The commission has made no bones about wanting to get live-aboards out, when they started this there were 20 or 30 of us, now there are only seven and so this is why we think it’s harassment and we just decided we’d had enough,” Mader said.

Port Manager Ed Erhardt was hired last year, and said he does not have enough history on the issue to comment on why the practice started. DeCarlo, who was on the commission at the time, said he was unaware of any conflict between Mader and Burns. DeCarlo also recently said that in the past he supported commission policy to reduce live-aboards at the port by attrition, but has more recently changed his stance and that the inspection policy has nothing to do with that issue.

What remains is that the port’s policy of requiring live-aboard inspections remains until a change is made. As of Herald press time Mader and Leader had not consented to the inspection and Erhardt said he was consulting with legal counsel on how the port should continue in what he described as a “sticky” situation.

“I’ve never had to do this before, this is new for me. But I’ll go by the strictest letter of the law and by what the commissioners direct me to do,” Erhardt said.

The commissioners are expected to further discuss the issue at their April 3 meeting. DeCarlo said he thinks if Mader had brought the issue up sometime before the January inspection deadline that the situation could have turned out differently.

“We have rules and we can’t allow someone to violate the rules or there’s no reason to have rules,” DeCarlo said. “I’ll bring it up at the next meeting and if the other commissioners agree we could do away with (annual inspections) in future years.”

And as for Leader and Mader, they still feel the inspections are wrong, but they’re hoping their stance will not break their 18-year ties with the Poulsbo waterfront.

“I think if they take some time to think about what they’ve done legally I think they’ll reverse their decision,” Mader said of the commissioners.

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