Punishment or compliance? Danny Brocker’s in jail over his motocross track
A Bellingham man has been in jail for a month because he’s either the victim of a vindictive bureaucracy, or he refuses to recognize Whatcom County’s authority to decide how land can be used.
Danny Brocker’s case seems complicated but it turns on two simple issues: Court rulings that Brocker must apply for a conditional-use permit to keep riding motocross bikes on his rural property east of Ferndale, and he must allow county officials to see if there are wetlands and a threat to Ten Mile Creek — and pay the fee to file reports from his own private inspectors.
Further, Brocker said he doesn’t own the land anymore, but that he’s been unable to complete its sale because of the new coronavirus pandemic.
“I never in a million years thought I was going to jail,” Brocker told The Bellingham Herald in a phone call from Whatcom County Jail Wednesday, July 22. “It’s pretty rough on my family. I’ve never had my freedom taken away like this.”
Karen Frakes, a deputy prosecuting attorney who advises the County Council on legal matters, said no one wanted to see Brocker behind bars.
“Nobody in Planning and Development Services or in the Prosecutor’s Office is seeking to punish somebody. All we want is compliance,” Frakes said at a July 21 County Council committee meeting where Brocker’s case was discussed.
“I honestly don’t think I’ve ever seen a case where someone so openly disregarded the process and the decisions made along the way,” Frakes said.
“We continued to get reports from many of his neighbors, who frankly, just like Mr. Brocker has the right to the use and enjoyment of his property, so do they. And that’s why we have zoning laws, to balance that out,” Frakes said.
‘Awesome’ spot to ride
Brocker, 36, a married father of three young children, said he simply wanted to ride his dirt bike on 20 acres of land on West Hemmi Road, in the Laurel area.
Brocker said that his private motocross track is the best in Western Washington, with jumps and turns and the sort of loamy soil that lets your bike just fly.
“I’d hate to lose my only spot for riding. It’s awesome,” Brocker said.
Dirt-bike riders have used the track for nearly a half-century, and Brocker learned to ride there as a boy. He loved riding so much that he competed on the professional motocross circuit.
His property is partially wooded with a dirt motocross track sandwiched between farm fields, according to Google Earth imaging.
There’s a three-bedroom double-wide mobile home at the 20-acre site, along with a 2,646-square-foot garage or shop and it’s valued at $306,698 according to the Whatcom County Assessor’s Office — which lists Brocker as the owner.
How the trouble started
The site is zoned for rural residential, which allows homes and agriculture but not a commercial motocross track. That requires industrial zoning, according to county ordinances.
When the Hemmi Road site came up for sale in 2012, Brocker bought it.
And that’s when trouble started, according to Whatcom County records, court documents, interviews with several officials familiar with Brocker’s case, and a July 21 Whatcom County Council committee meeting.
First, it was complaints from neighbors about loud motorcycles, and later there were concerns about changes that neighbors said Brocker was making to the track with heavy equipment.
“Back in 2012, we received over 40 complaints from neighbors about Mr. Brocker’s running an alleged motocross track and doing some illegal clearing, potentially in critical areas,” Planning and Development Services Director Mark Personius said during the July 21 committee meeting.
But Brocker’s lawyer, Rolf Beckhusen, said Brocker wasn’t building a new racecourse or substantially changing the track that had been there since the 1970s.
“He didn’t modify it, really at all, Beckhusen told The Bellingham Herald. “He did maintain it. You have to maintain it.”
Long series of hearings
There is no noise ordinance in Whatcom County, but there are zoning laws and a Critical Areas Ordinance, which regulates geologically hazardous areas, frequently flooded areas, aquifer recharge areas, wetlands, and fish and wildlife habitat conservation areas, according to the Whatcom County Planning and Development Services website.
“That’s where everything changed from being quasi-helpful to finding something to more or less nail Danny with,” Beckhusen said.
Whatcom County officials said they are concerned that Brocker’s motocross track lies in an environmentally sensitive area near Ten Mile Creek, a protected salmon stream. Further, the site could have protected wetlands.
And, because he sometimes charges people to ride on his track, the county considers it a commercial use that’s not allowed by the zoning, according to court documents and hearing examiner’s reports.
“Three years we worked with him, to get him on a compliance path,” Personius said during the July 21 hearing.
But Brocker and his lawyer said that emails and other information they received from Freedom of Information Act requests show that county officials never intended to help Brocker find a way to keep riding motorcycles on his property.
“It’s a tragedy in my mind that a guy like Danny, who has never committed a violent anything, is stuck in jail,” County Councilman Ben Elenbaas told The Herald.
“I never want to get here again, regardless of how we got here,” Elenbaas said during the committee hearing. “It almost feels like he got put in jail because he said ‘Enough is enough.’ ”
Official hearings start
Finally, the county issued land-use violation notices that culminated in a 2015 meeting with the Whatcom County Hearing Examiner, a quasi-judicial officer who decides land-use and development disputes.
Brocker lost.
He appealed and Hearing Examiner Michael Bobbink ruled in 2016 that Brocker needs a conditional-use permit and must allow Planning and Development Services to inspect the site and evaluate it in terms of the Critical Areas Ordinance.
Brocker asked for a review before the County Council, which agreed with the hearing examiner.
Then Brocker challenged the hearing examiner’s decision before a jury in Whatcom County District Court. He lost and sought relief in Whatcom County Superior Court, where he also lost.
Next he challenged lower court decisions in the state Court of Appeals, where a single commissioner and then a three-judge panel heard his case.
He lost again.
But he wouldn’t apply for a conditional-use permit or pay to submit the environmental review.
And he continued to ride, according to complaints from neighbors.
Stop-work orders
So the county issued four stop-work orders, a gross misdemeanor, said Royce Buckingham, the prosecutor who’s been handling the Brocker case.
“We’ve been marching along trying to get compliance for eight years now,” Buckingham told The Herald. ”It is his property, but there are environmental regulations. There’s indications that there’s wetlands on the property and there’s clearly a stream.”
Ultimately, Brocker served a few days in jail for violating the stop-work order and the rest of his sentence involved home monitoring, fines and community service.
And he was on probation.
Brocker sells the land
Brocker said the hassle of fighting with the county and the courts drove him to sell the property in early 2020 to a motorcycle club called Northwest Riders for God.
His lawyer has a quit-claim deed that shows transfer of title for $10 on July 7, filed with the Auditor’s Office.
But Brocker remains listed as the owner with the county assessor.
So, when neighbors started complaining about noise and earth-moving equipment at the site in April and May, Brocker was summoned to District Court for a probation violation.
Judge David Grant was skeptical of the sale, asking if it was a “sham,” Buckingham said.
“The judge found that Mr. Brocker had already violated probation. He made no ruling on whether the sale was valid,” Buckingham said in an email.
Ordered straight to jail
And that’s why Brocker sits in Cell 251 of Whatcom County Jail on a 56-day sentence, county records show.
Grant ordered Brocker taken into custody immediately after the June 24 court hearing, saying that he violated probation on the 2017 conviction for violating a stop-work order. He faces 480 days of jail alternatives after his release next month.
Friends and supporters said it’s inhumane to confine a non-violent offender — an otherwise law-abiding man — amid a deadly global pandemic.
They’ve held occasional rallies outside the jail and County Courthouse in downtown Bellingham and received donations of $6,040 of a $50,000 goal on the fund-raising website GoFundMe. They started a Justice for Danny page on Facebook.
A ‘cruel’ punishment
“He was using the land as it has been used since the ’70s,” his wife Lindsay Trottner told The Herald.
“He’s not a bad guy. He stood up for what he thought was right. To put him in jail over a paper crime really feels cruel,” she said.
She said it’s been hardest on their children, an 8-year-old boy and two girls, ages 6 and 2.
“It’s been overwhelming at times,” she said. “That’s probably the hardest part. He’s a really great dad and they miss him.”
Trottner said she and other supporters appealed to Sheriff Bill Elfo for mercy, because his department operates Whatcom County Jail.
Elfo told The Herald that he can’t simply release a prisoner.
“We have no discretion on that, that’s a judge’s order. The judge is the one who makes that determination,” Elfo said.
In a phone call from jail, Brocker said he’s baffled why Planning and Development Services and the courts keep after him.
But county officials said it’s the only way to keep Brocker from continuing to defy environmental and zoning regulations.
“They’re forcing me to sell,” Brocker said. “It was a dream, but now it’s become a nightmare.”
This story was originally published July 27, 2020 at 5:00 AM.
