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Mixed-use land development blends multiple purposes such as residential, commercial, etc., into one space where those functions are to some degree physically and functionally integrated. With its beneficial potential, it is often hailed by community leaders as a “smart growth” strategy.
May 23, 2022
In 1977, Charles Pillon purchased a 10-acre parcel of property in unincorporated King County, Washington. Two years later, he began living on the property, and he has occupied the site continuously since then. While most people would view his version of mixed use as bizarre and even dangerous, his neighbors thought differently. For many of them, he was providing a valued service.
At some point, Pillon decided to devote a significant portion of the property to storing, collecting, accumulating and disposing of various items of solid waste. To further his plan, he got word out to the community that people could leave waste and vehicles on his property in exchange for a "tipping fee."
A closer look revealed some off-the-wall activity. Pillon allowed individuals to live in the used motor homes and recreational vehicles on the site in exchange for their collecting the tipping fees and doing other work. They would sort and move waste matter into areas of the property where that type of item was stored or disposed. In addition, they would remove metals and other parts and materials from vehicles, boats and other items that had been dropped off. They would sort these items and deposit them into a collection tub to be sold as scrap.
Surprise, surprise! Pillon did not have a permit or license to handle waste or recyclables of any kind. It seemed to make no difference. For decades, the site was either undetected by, or not a priority for, county or state officials.
On March 27, 2015, a Washington State Patrol (WSP) aircraft videotaped the condition of the property. A screenshot from the video showed solid waste stored and/or disposed in three different locations: a bus and recreational vehicle area; a workshop area; and a landfill area.
About eight months later, Seattle and King County authorities got around to issuing a notice of violation to Pillon for the goings-on. In January 2016, WSP aircraft took another video of the property. WSP obtained a warrant to search the Pillon property on February 25, 2016. WSP Trooper Troy Giddings executed the search warrant. He was joined by Washington State Department of Ecology and United States Environmental Protection Agency (EPA) employees who took photographs and obtained samples for testing from soil and containers located in the three activity areas.
Pillon’s property contained approximately 2,000 containers, but that was mere guesswork. Investigators found it impossible to determine exactly where and how many could be buried under the waste piles. They selected nine containers from the three different areas in an effort to provide a fair representation of the types, location, and condition of the various receptacles on the site.
Laboratory tests identified high levels of arsenic, cadmium, and chromium in the soil samples and characteristics of ignitability in the container samples from the bus and RV area. Soil and container samples from the workshop area contained high levels of lead, arsenic, cadmium, and chromium. Soil samples from the landfill area contained high levels of arsenic and chromium.
Prosecutors charged Pillon with one count of violating the state hazardous waste law, one count of wrecking vehicles without a license and with a prior conviction, and one count of unlawfully dumping solid waste. The parties entered into a pretrial stipulation in which Pillon conceded that he allowed members of the public to deposit solid waste at his property and that, between February 25, 2015, and February 25, 2016 (the charging period) he accepted approximately 120 cubic yards of solid waste per month onto his property.
The King County Superior Court found Pillon guilty as charged following a non-jury trial. It later ordered Pillon to pay a litter cleanup restitution payment of $3,888,000.00. This amount was calculated under state law as “the greater of twice the actual cost of removing and properly disposing of the litter, or one hundred dollars per cubic foot of litter." The actual removal and disposal costs could not be calculated at the time, so the trial judge based the litter payment on Pillon's acknowledged acceptance of 120 cubic yards per month of solid waste during the charging period.* A state financial obligation collector assigned to Pillon’s case set a payment schedule of $1,000 a month based on what Pillon said he was able to pay.
Pillon challenged his convictions, which were affirmed by an appeals court. After the state supreme court declined to take up the case, Pillon filed a petition seeking to vacate the litter payment. For reasons spelled out here, that petition was denied.
As elsewhere, individuals convicted of a crime in Washington State have the right to appeal their convictions. But the system there goes a unique step further. Convicted persons may challenge their punishment or penalty through a Personal Restraint Petition, and they may submit altogether new evidence that was not presented at trial or in an appeal. Being under some form of “restraint” includes being in custody or under some other disability resulting from a judgment in a criminal case. These petitions are filed directly in an appeals court, and the court will grant a petition if the convicted person is shown to be under a restraint that is deemed unlawful.
Pillon contended that the litter payment was invalid due to government misconduct and a violation of his constitutional rights. The alleged wrongdoing was the State’s failure to consider and act on so-called exculpatory evidence, that is, evidence that might exonerate a defendant – in Pillon’s case, that the materials on the property were benign and not hazardous. Indeed, Pillon insisted that his waste collection activities caused little or no harm and that the “debris field” described by the State was actually beneficial composted material.
The appeals court rejected this contention as wholly unsupported by the facts. “[T]he statute Pillon was convicted of violating and that governs the imposition of the litter payment makes no reference to the hazardousness (or nonhazardousness) of the solid waste involved,” the appeals court said. “Here, Pillon stipulated that he accepted approximately 120 cubic yards of solid waste per month during the one-year charging period, for a total of 38,880 cubic feet. Furthermore, at the hearing to set the amount of the litter payment, the State presented evidence that the actual volume of solid waste on Pillon's property was an order of magnitude greater. In light of the foregoing, Pillon cannot establish that he was actually and substantially prejudiced by the State's alleged suppression of or failure to act on exculpatory evidence of the nature of the waste on Pillon's property.”
Pillon next contended that the litter payment violates the Eighth Amendment of the U.S. Constitution which prohibits, among other unconscionable measures, excessive fines. The State conceded that the litter payment is a fine. A fine is unconstitutionally excessive if it is grossly disproportional to the gravity of a defendant's offense. Washington courts determine whether a fine is grossly disproportional largely by examining the nature and extent of the crime and the harm it caused.
Pillon claimed that Jeff Fowlow, EPA's On-Scene Coordinator, stated that EPA found no hazardous materials in the debris field, which amounts to only inadmissible hearsay in support of this assertion. On the contrary, “Pillon stipulated that EPA's sampling at his property revealed lead, arsenic, cadmium, and chromium in samples taken from the Bus/RV area, the Workshop Area, and the Landfill Area,” noted the appeals court. “And, Fowlow confirms in a declaration submitted with the State's response that sampling at Pillon's property revealed the presence of environmental contaminants . . . .”
In fact, the record showed that EPA, in 2016, 2018 and 2019, had collected dozens of surface and subsurface soil samples from across the site and analyzed them for common environmental contaminants. The result of the analyses on these soil samples indicated a number of compounds that exceeded EPA risk-based screen levels and/or state cleanup levels, including diesel, motor oil, gasoline, cadmium, arsenic, lead, thallium, dioxins and PCBs. In addition, the agency collected surface water samples and groundwater samples from across the site and found similar contaminants at impermissible levels.
Pillon countered these findings with unsupported allegations, including, for example, that EPA confirmed that the compost area contained "only soil" and thus was a "finally-proven-innocent-compost-pile” and that EPA's investigations "confirmed that the few spots were only surface stains . . . not pollution-in-depth." He even claimed to have conducted his own testing "a few years back and the soil was proven safe." With no admissible evidence in support of these assertions, the appeals court rejected them outright.
As Pillon saw it, cleanup costs were beside the point. Because the State had undertaken no cleanup activities on his property, apparently no cleanup is needed. The appeals court responded: “Pillon does not present any evidence that no cleanup or remediation activities will ever occur. He also provides no evidence to counter the State's . . . attestations that groundwater monitoring at Pillon's property is ongoing or that offsite assessment is necessary to determine the full nature and extent of contamination that may have migrated from his property.”
Apparently without seeing the irony, Pillon asked the appeals court to consider a number of statements in his behalf from neighbors attesting to his “community efforts” in public safety and environmental issues “where agencies have been slow to act and both public safety and environment were affected." In particular, he called attention to an exhibit representing a “Photo Record of [his] Community Public Safety and Clean-up efforts." Pillon asserted that these materials demonstrate that he has "always sought collaboration and mutual respect" and that his intentions, character, and motives should be considered in an excessive fines analysis. However, noted the appellate panel, no judicial decisions support the notion that virtuousness can be considered in determining whether a fine is excessive.
As a final matter, Pillon contended that he is unable to make the litter payment, although he did not substantiate his inability to pay. Nor did he dispute the $1,000 monthly amount, which was based on his own statement about what he could afford. “[A]s the State points out, the judgment and sentence provide that if Pillon is not able to afford the monthly payments, he can ask the court to reduce them to a minimum of $300 per month,” said the court.
No rush. At $1,000 a month, the debt will be fully paid in a mere 324 years.
In re Pillon, No. 82929-7-I, Wash. Ct. App., March 21, 2022.
* 120 cubic yards per month, multiplied by 12 months, equals 1,440 cubic yards. 1,440 cubic yards, multiplied by 27 cubic feet per cubic yard, equals 38,880 cubic feet accepted during the one-year charging period. Such amount, multiplied by the statutory rate of $100.00 per cubic foot of litter, equals $3,888,000.00.
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