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
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| 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
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