A New Challenger Enters The Fray

Challenging the County is about as much fun as...

The mail today contained two items related to the Hearings Board Challenge calling into question the so called "Lake Whatcom Reconveyance."

First, the formal Board order allowing the Whatcom Land Trust to intervene in the case.  Two good things came out of the request that the Trust not be allowed into the case.  The Presiding Officer ordered that the Land Trust "...may not change or add to the issues presented for resolution as set out in the Prehearing Order in this case," and that, "Should the Petitioner and the Respondent enter into settlement negotiations, the Intervenor shall not be a necessary party to those discussions."

The WLT had worried in their motion to intervene that the County might come to its senses and do a settlement with Jack Petree.  If the County does decide to settle, the Trust has nothing to say about it.

A couple of people have said something to the effect of, "What do you expect out of a board appointed by the Governor?"  That is unfair in this case.  The Board made exactly the right decision.  State law makes it very difficult to keep an intervening party out of a case but, here, the party is restricted to sticking with the issues and, may not interfere in a legitimate negotiation process that saves everyone time and money and begins a proper process to discuss the importance of Resource Lands in Whatcom County.

Second, a new challenger to the county in the garb of the forest products industry has been mounted.  Tom Westergreen, Richard Whitmore, and the A.L.R.T. corporation (a timber harvesting firm) have lawyered up and challenged the reconveyance.  The Hearings Board has consolidated the Petree challenge and the new challenge so, a new timeline is established.  The challenges will be decided in November.

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YOU Don't Know Jack! No, YOU don't know Jack!

Rand Jack or Jack Petree; who’s telling the biggest fish story?

Later this year the Washington State Growth Management Hearings Board will decide that issue but, for now, what do you think?  Jack Petree, the country bumpkin or Rand Jack whose organization, the Whatcom Land Trust, owns most of the country locally.  

Humor aside, Rand Jack of the Whatcom Land Trust took Jack Petree out behind the woodshed for a spanking last week on Dillon Honcoop’s afternoon show on KGMI radio.  Here’s the link… the attempt at a verbal whoopin’ is at about 32 minutes into the show.

It seems Jack claims Jack hasn’t read county code (the regulations determining what can happen on certain kinds of land).  Jack (Rand that is) claims Jack (Petree that is) hasn’t figured out that parks are allowed on timber land dedicated to the support of Whatcom County’s timber industry.  Rand states outright that public parks, the only use reconveyed land can be legally put to, are allowed in the zone designated Commercial Forest, the zoning applied to all, or nearly all, the land to be reconveyed.

Now Rand is a well respected, even famous, attorney in Whatcom County while Petree is a plain ol' writer with a sideline consulting on public policy issues so Rand has more gravitas while Petree is relegated to just reading the code and thinking, “What does the plain language of the law say.”

Well, here is what it says. 

The code for parks and recreation can be found at www.codepublishing.com/wa/whatcomcounty/.  Just type “recreation and open space” or “ros” into the search box then click on the link to the left.

According to the code, “051 Public parks, playgrounds, forest preserves, beach activities, wildlife reserves, and natural systems education and/or interpretative areas. (Ord. 2004-026 § 1, 2004),” are among the permitted uses for lands designated by the zoning code for Recreation and Open Space (ROS).

Now, think about that language as you read that language.  Public parks…forest preserves…wildlife reserves…natural systems education and/or interpretative areas.  They are all different things or they wouldn’t have to be listed as separate entities.  The code differentiates between public parks and those other things.

It should be remembered that reconveyance can only be allowed for a public park.  If reserves and preserves are not public parks then reconveyance cannot take place to establish a reserve or a preserve.

So now let’s go to the zoning code for Commercial Forestry.  In the search box type in CF to find that code.

The first thing you’ll see is that, “The purpose of this district is to implement the forestry designation of the Comprehensive Plan, pursuant to RCW 36.70A.170, by providing for and encouraging the long-term productivity, commercial management and sustained use of forest resources. In addition, the district provides for uses that are compatible with forestry activities, while maintaining water quality and soil productivity.”

Next, “.056 Public forest preserves, wildlife reserves, natural systems education, and/or interpretive areas,” are listed as allowed uses.  Notice that parks are not included on the list.  So, based on this piece of code, public forest preserves, wildlife reserves, natural systems education, and or interpretive areas” are not incompatible with commercial timber production.  You can see the truth of that by looking at Galbraith Mountain where bike trails crisscross currently maturing stands of timber managed for harvest and, in fact, they even cross recently harvested timber areas.

Now, go to .154 which speaks to some accessory uses allowed in the CF zone as well as some uses excluded from the zone saying, “Operation of dispersed, primitive recreational facilities including tent campgrounds, game reserves, developed trailheads with parking for more than 30 vehicles, but excluding uses such as community centers, riding academies, off-road vehicle parks, parks, marinas, camping clubs, institutional camps and recreational vehicle and travel trailer parks.”

You can look up what “excluding” means on your own.

Last, go to  20.43.200 Prohibited uses and read ".201 All other uses."

That means everything not specifically allowed is prohibited.  So are things that are specifically excluded.

Seems pretty simple and straight forward to me but then, I’m not a well respected, big time attorney so, what do I know?

Why There Must Be A Reconveyance Challenge

People ask why a challenge to the Reconveyance is so important.  Interestingly, some of those people are the same persons who fight hard to preserve Ag land and the county’s agricultural heritage.

Pretending slides and other natural events will stop if we just have Reconveyance is disingenuous

Sometimes the question is asked because the person asking is unaware that the land the county has requested for reconveyance is zoned Commercial Forest (CF), a designation that, by law, confers the same protection on the land that designation as an AG zone does.  Under the Growth Management Act and by adoption of the Whatcom County Comprehensive Plan and its accompanying development regulations, lands zoned CF are dedicated to the maintenance and enhancement of the County’s timber industry.  Parks are, by law, forbidden in the zone.  Many Hearings Board decisions and a couple of Supreme Court decisions have upheld that contention.

If the Executive and the County Council had done what they are required to do some years ago, there would be no challenge.  To change a zoning designation the County is supposed to docket (schedule) a transparent public discussion of the change, allow the Planning Commission to examine the facts about the rezone, take testimony then make a recommendation regarding the change to the County Council.  If the Council votes to rezone the land, actions like the reconveyance can be initiated.  Parks and Commercial Timber production are not compatible.  The land cannot be dedicated to both at once.

County Council member Pete Kremen has belittled the impact of removing 8,800 acres of land from the forest resource base.  It should be remembered that several other reconveyance actions have already reduced the timberlands of the county and more are planned.  In addition, consider the following quote from a DNR analysis about the future of the forest in Washington presented to the Washington Legislature in 2007 (pre-recession):

“Timber harvest has dramatically declined in the past 15 years on all ownership categories, from 5.9 billion board feet per year to 3.6 billion board feet per year, a 40 percent aggregate decline. The greatest declines have been on national forests as a result of federal policy. Unanticipated harvest declines have also occurred on state trust lands, on western Washington tribal lands, on industrial forest lands, and on western Washington non-industrial private lands, largely in response to changing regulations and market conditions and to land conversions.”

A Petition For Review or challenge to a County action is not a lawsuit.  It is just what it says it is, a petition for review.  If the Hearings Board finds the County erred then the Reconveyance Resolution will be sent back to the County for a proper process.

If we are going to deliberately destroy an industry shouldn’t we at least acknowledge we are doing just that?  The appropriateness of such an action is what a proper and transparent process to redesignate the land to a zoning designation allowing parks on the land would explore. 

All that is one reason a challenge is important.

Challenging The System Before The Hearings Board

It's scary to challenge the system before the Hearings Board when you're not an attorney.  The Growth Management Act allows citizen challenges but, when someone like myself does "Petition for Review" of something the government's done that someone, in this case myself, Jack Petree, is held to the same legal standards of discussion and proof an attorney is held to.

Anyway, April 9th, 2013, I asked the Washington State Growth Management Hearings Board to review the Whatcom County's actions in requesting the Lake Whatcom Reconveyance be carried out.

The red areas were harvested in the late 1800s; the brown areas were burned in forest fires in the late 1800s

The review will be done over the next several months.  I felt it appropriate to inform the Council about the request for a review so, I provided the following:

MEMO:   4/9/13

To:  The Whatcom County Council and the Whatcom County Executive

From:  Jack Petree

Regarding:  Hearings Board challenge regarding Whatcom County Resolution 2013 – 009 (Reconveyance)

Council members and Executive,

Earlier today I submitted a Petition For Review to the Western Washington Growth Management Hearings Board regarding the Reconveyance resolution you passed March 12^th of this year.

I think it is right and proper to inform you of my action and, to offer a few words about why I submitted the petition.

My primary objections to your action are threefold.

First, the three major economic initiatives I’ve seen Whatcom County and its cities take in recent years have resulted in the Whatcom County economy being one of the poorest performing  metropolitan economies in the State of Washington with exceedingly low median incomes the rule.

So what have we done about our wage issue?  We deliberately ran Georgia Pacific out of town, we deliberately assured the stagnation of our rural economy by the adoption of LAMIRDS in lieu of the already Superior and Appeals Court approved rural zoning we had in place previously and, now, we are violating state law regarding what both the Hearings Boards and the State Supreme Court have called a “…forest resource conservation imperative that imposes an affirmative duty on local governments to designate and conserve forest resource lands in order to assure the maintenance and enhancement of the forest resource industry.” (bolding is the Hearings Board’s).  In doing so, we are crippling our forest products industry, an industry paying well above the average wage for the county. 

Next, I believe the Department of Natural Resources cannot offer Reconveyance opportunities to Counties on land zoned to reflect the law’s requirement that lands of long term commercial significance be preserved and enhanced.  It is my belief that Reconveyance can only be allowed after resource land has been de-designated and rezoned to accommodate park uses.  This challenge, if accepted by the Board, will help clarify that issue.

Last, the Whatcom County Council put the cart before the horse in the reconveyance process.  Land cannot at once be lands dedicated to the commercial production of timber and the preservation of a healthy forest industry and, park lands.  As the Hearings Boards have said, there are three kinds of land under GMA; resource land, rural land and urban growth areas.  In saying that the Boards have pointed out that rural land and lands dedicated to urban growth can be routinely zoned and rezoned to accommodate the needs of society but, resource lands require a much higher standard and greater scrutiny by the Boards when it comes to de-designation and re-designation.   The Council chose to ignore the need to de-designate and then re-designate the lands it wanted reconveyed before proceeding with its action and in doing that, I believe, violated the GMA.

I am not happy doing this.  This will take a huge number of hours out of my life, hours better spent trying to make a living in this tough economy but, I don’t see an option here.  If I don’t do this the livings of our county’s forest industry workers will be threatened.  I’ve lived in Whatcom County too long to see our industries continue to be harassed and unsupported for decade after decade after decade without trying to do something.  We have brought our economy to the point where it is, with the exception of the big three at Cherry Point, excessively dependent on grants, transfer payments from the state and the sale of milk, cheese and gasoline to Canadians. 

Respectfully,

Jack Petree

In coming weeks I, or others, will try to keep you, the reader of this blog, informed about the progress of the challenge.