DNR presentation for July 2nd

A real milquetoast presentation on the Reconveyance is up on the Board of Natrual Resources site. 

Interestingly, it has three page 11s...  Two slides are almost certainly supplied by Whatcom County.

Anyone planning to testify (it is not a hearing, just public comment taken as a matter of courtesy) can refresh themselves by looking at my letter to the Board posted earlier on this blog.

A good thing to testify to, if you are writing, is the fact that the County Environmental Impact Statement for the 2009 Comprehensive Plan showed the County will have a surplus of trails by 2031 without adding land supply. 

Anyway, find the DNR presentation here...http://www.dnr.wa.gov/Publications/em_bc_bnr_lakewhatcompresentation070213.pdf

I'll let you know how things went with the Hearings Board Wednesday

Reconveyance on DNR agenda for July 2nd

Below is a copy of a letter sent to the Board of Natural Resources yesterday.  The letter speaks to the County's contention that the Growth Management Hearings Board doesn't have jurisdiction to decide if the County violated the Growth Management Act when it applied for reconveyance because the County Council had its fingers crossed when it adopted the resolution asking for Reconveyance.

Letters to the Board of Natural Resources would be good because they are addressing reconveyance in some fashion next Tuesday at 9 o'clock in Olympia.  The public can speak on the issue but it is not a hearing... it is a meeting so any testimony is informal and is not counted as the equivalent of public testimony but can still have influence.

The Smoke Screen

So, we'll tell them they don't get to decide if we broke the law yesterday because we might want to do it again tomorrow..Is that clear to everyone?

TESTIMONY MEMO         6/24/13

FROM:  Jack Petree

TO:

Commissioner Peter Goldmark and other members of the DNR Board of Natural Resources, Kyle Blum, Deputy Supervisor for State Uplands and, Jed Herman, Conservation, Recreation, and Transactions Division Manager

RE:  Before the Growth Management Hearings Board, Whatcom County argues its resolution and “formal application” for reconveyance “has no force of law” and thus, does not bind the County to utilize the reconveyed land as required by reconveyance law.  The Hearings Board is told it has no jurisdiction because the County may not ultimately decide to comply with the terms of the reconveyance statutes.

Commissioner Goldmark and other Board Members, Mr. Blum and Mr. Herman

Whatcom County appears to be willfully attempting to mislead the Board of Natural Resources in an effort to make the DNR/BNR the scapegoat in the ethical and legal mess that must inevitably follow a BNR decision to allow the Lake Whatcom Reconveyance at this time.

There are, however, ethical and legal opportunities for the BNR to sidestep Whatcom County’s efforts and assure reconveyance law is properly followed.

At the Board’s July meeting last year, Commissioner Goldmark and other members of the BNR were upfront and honest in telling citizens the Board is bound by the law and must defer to the County in reconveyance matters; once a legitimate reconveyance application is put forward the Board is obliged to allow reconveyance but, only, for use as a public park.  The Board’s legal representative at that time was specific in saying there would be no hearing on the matter though the public would be allowed to speak informally, as it always is on such matters.

The Whatcom County Council seemingly made application March 12 of this year by means of a “formal application” for reconveyance, binding the Board to approve reconveyance, aside from a DNR finding the proposed park will conform with the State’s outdoor recreation plan (virtually any “park” meets that test). 

As I told you before, I challenged that application before the Growth Management Hearings Board.

Now, in formal legal argument before that judicial body, the Hearings Board, the County claims its application does not bind Whatcom County to do anything; that the County may, indeed, flout the reconveyance law and never provide for a public park on the reconveyed land at all.  Consider the County’s statements made in its dispositive motion to the Board: 

·        “Under Whatcom County Charter, a resolution has no force of law;

·        “The operative section of the resolution includes a sentence that is a request, and a sentence that is a finding, but no regulatory language of control.”

·        “Even if DNR reconveys the land, the terms of the resolution/application document do not control physical development.” 

·        “Indeed, the DNR must hold a hearing and make a finding before park uses are required." (bold is mine – DNR specifically told citizens last year there would be no hearing because DNR is bound to provide reconveyance on receipt of a legitimate application from the county.  The County has asked the Board not to allow that conversation by the Board to be allowed as evidence in the hearing on Hearings Board jurisdiction being held today at the same time as the BNR meeting on reconveyance is being held)

·        “The County might acquire the land and THEN change the zoning… Or the county might acquire the land and THEN fail to use the land for park purposes, in which case DNR would take the land back into trust.” (NOTE, RCW 79.22.300 says “public park use” not "public park purposes")

Public parks are not allowed on land zoned Commercial Forest in Whatcom County; that is a key argument in the case before the Growth Management Hearings Board.  It appears Whatcom County has a strategy that it believes will trap the Board of Natural Resources in an untenable position and allow the County to simply keep the reconveyed land in an unused, untouched status forever (gain reconveyance, fail to use the land for a public park, and dare the DNR to go through the political, legal, and economic misery that will accompany any thoughts of a request to reacquire the land).

The attorneys for a second challenger regarding the reconveyance application said in addressing the County’s position, the Hearings Board is being asked to, “assume the County will act in bad faith, and believe that the County is requesting reconveyance from the DNR while having no intent to comply with the requirements of its own Resolution, state statute, and even its own Memorandum of Agreement with the DNR.”

The Board has at least two legal, and ethical, ways to address the County’s actions in this matter:

First, while State law requires the BNR to accomplish reconveyance on receipt of a legitimate application by which the County certifies it has the right to, and will, establish a public park, the Board is not bound to a timeline.  The Hearings Board will issue an opinion in November regarding the resolution.  If the Hearings Board finds the County violated the Growth Management Act in passing the application then, the application is invalid and the BNR is released from any obligation to provide reconveyance until the County goes through a proper process to dedesignate the land as Forest Lands of long term commercial significance and redesignate it to a proper zoning for public parks and then reapply.  The BNR can, and should, wait for the Hearings Board decision before deciding on reconveyance.

If the BNR feels it must move forward with the reconveyance now, it should attach conditions to assure the land is used as the law intends it to be used.  Conditions should include: 

·        A formal agreement by the County that it is irrevocably bound, by accepting reconveyance, to establish a public park on the land;

·        A time limit for creating a park plan for the park, funding the plan and, beginning work to realize the plan;

·        A time limit for establishing the public park not to exceed two years;

·        A requirement that the reconveyed land cannot be compromised by the sale or gift of conservation easements or agreements that could preclude the use of the land for Commercial Forestry, or impede transfer of the land back to the DNR if the county fails to use the land as required by State law;

·        An upfront condition that if a public park is not, or cannot, be established on the land the reconveyed land is automatically returned to the DNR without objection by the County.

If Whatcom County is serious about following the law, it should have no problem accepting conditions imposed on the reconveyance designed to assure the law actually is followed once the DNR loses control of the land.  As Commissioner Goldmark told the citizens of Whatcom County last year, “We are bound by the reconveyance statutes.”  Whatcom County is also bound by the statutes.  If the County claims in a formal legal proceeding it is not bound to comply with the reconveyance statutes, it becomes the BNR’s duty to reject the County’s application as being incomplete. 

The last thing the BNR should consider is rewarding the County for a less than appropriate approach to reconveyance.  It is the Board’s duty in the matter to assure reconveyance statutes are fully followed. If not the BNR then who will?

A screen shot of the County’s argument is attached. 

I regret I cannot speak to the Board in person July 2 as I will be replying to Whatcom County’s attempt to derail the Hearings Board process that same morning.

Regards,

Jack  Petree

tradewrld@comcast.net  or 733-1303       2955 Sunset Drive, Bellingham, Washington 98225

Footnote referred to on page 8

Reconveyance Before The Board of Natural Resources July 2

The Board of Natural Resources of the DNR is addressing the Lake Whatcom Reconveyance July 2nd. 

This is an important meeting and a very specific message needs to be sent.

The same day, at the same time, a hearing before the Growth Management Hearings Board on the Lake Whatcom Reconveyance Challenge is being held.

Yes we will.  No we won't. Yes we will. No we won't.

The County is trying to get the Challenge thrown out on the basis of the fact that the formal application the County passed to force DNR to allow the Reconveyance has no binding force under law.

What the County is saying is, we are forcing you to break the law but, once we have the land we can go ahead and break the law and you can't do much about it.

The Board needs to hear that.

A letter to the board will go out either tomorrow or Monday.  It will be posted here but, in the meantime, it is to be hoped a number of people will be planning to go to Olympia to comment before the board about the County's attempts to misinform the Board.

County Says Hearings Board Has No Jurisdiction Because The County Can Go Back On Its Word And Break The Law If It Wants

My brain hurts.  Had to write responses to the County's, and Whatcom Land Trusts, challenge to Hearings Board jurisdiction this week... 40 hours of misery.

Boiled down, the County's primary legal issue is, "Our word doesn't mean anything so it is not illegal to break our word.  Because we can break our word at will, even if it violates the law, the Hearings Board doesn't have the right to say we did anything wrong."

In short, the DNR is required, by law, to believe the County when it says it can, and will, use the land for a public park.  There is no further formal  public process once the County's hearing is completed.  The DNR is required, by law, unless there is a flaw in the County's application, to allow reconveyance... That is what the challenge is all about.

Even if the County has lied, deliberately or inadvertenly on its application, reconveyance must be allowed unless DNR realizes it has been duped.  A Hearings Board decision is the only way to legally inform the DNR it has been duped so, of course, the County is frantic about making sure the Board doesn't get to make a decision.

Once reconveyance has taken place reversing the act and returning the land is virtually impossible.  The County has the land and doesn't have to do a thing with it, law or no law,  except thumb their nose at DNR, and any citizen who actually expected a park, and tell them to go pound sand if they don't like it.

Whatcom Land Trust Has Documents Before Challengers Have Them

Something’s Fishy! 

Yesterday afternoon Whatcom Land Trust’s attorney Heather Wolf had her secretary send over a “Memorandum in Support  of Whatcom County’s Motion to Dismiss” the reconveyance challenge filed by a number of parties against Whatcom County.  Ms Wolf also served the Hearings Board with the memo.

One big problem!

There is no motion by Whatcom County to dismiss the reconveyance challenge!

might hear some whoppers when the land trust tries to explain this one

Now, the fact of the matter is, there probably will be a motion and it will probably be filed on Monday as not too many county employees with the big titles work the weekends but, here is the question.

If the people challenging the county’s action in the Reconveyance matter haven’t been served with a motion how does Ms Wolf acting on behalf of the Whatcom Land Trust, an intervenor with restricted rights in the case, already have a copy or, at least, enough information to write a longish legal opinion in support?  Is that on the up and up?  Not being a lawyer, I don’t know but, it is certainly offensive though I am a big boy and broke out into laughter rather than go into a funk about it.  Maybe the county legal department uses Verizon; that could explain the leak.

On a purely speculative basis it could be put forward that the Whatcom Land Trust is managing the case for the county.  After all, one of their complaints when they intervened was that the county might not manage the case to the Land Trust’s liking.

The next speculation might be, "Who is footing the bill?"  The land trust or the county?

Very strange;

More next week.