County and Whatcom Land Trust Fail Respond To Reconsideration

Thought you might like the map, just for fun

Yesterday was the last possible day for the Land Trust and for Whatcom County to respond to my motion for reconsideration on the Reconveyance Challenge.

Given the Board's cavalier treatment of logic and the law the two probably already know how the Board will rule.

At any rate, if the Board has not responded by next Wednesday then the motion is denied.

That will not be the end of it, however.

http://www.bellinghamherald.com/2013/07/25/3111435/case-against-controversial-lake.html

Ken’s comments in the story this morning make my head hurt… adding 9000 acres (.09%) to the already existing 1+ million acres of parks, federal lands, and state lands already managed for recreation in Whatcom County and then restricting uses significantly below the level already allowed on that land is going to draw more tourists?

 

Check out the story in the Herald this morning.

 

I've already entered a motion for Reconsideration before the Board.

 

I'll post the motion at some later time but, for now, I believe that if an attorney before the Board used the approaches the Board used in explaining its decision, that attorney might be facing sanctions before the bar as a result.

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

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.

Is The DNR Going To Intervene - Is The Timber Industry Going To Settle?

The second Pre-hearing Conference was held yesterday morning.  The new schedule was necessary because some timber industry folks challenged on the Reconveyance.

Three interesting things came to light, one old and one new and one a little of both.

First, when challenged, the County is supposed to make a complete record of the material used to arrive at a decision available to the challengers.  What the County did include in the record was a limited amount of material.  It doesn't even include the minutes of the Council meetings last year when the County requested reconveyance and the intertrust transfer.  The record the county introduced, aside from two or three documents, included nothing prior to July of last year.  I will even have to apply to the Hearings Board even to have the SEPA document included.  Some sparks flew over that between the industry challengers and Royce Buckingham who is handling the case for the County. 

Second, Royce let it slip he had asked the Department of Natural Resources to intervene in the case or, at least, that is how I took his comments.  Interesting the County is recruiting interveners.  Actually, I think that one may backfire on the County but we will see.

Last, it seems the timber people and the County have agreed to continue the discussion regarding some kind of settlement.  The County had turned me flat down on a settlement that would include the county doing the things necessary to legally rezone the property so, I wonder what the alternatives might be.  In my view if the County is not willing to do the job properly then the challenge should continue.  We'll see.

Stay tuned, share these things via your facebook and other media and keep in touch.

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?

When You Read This Blog Be Sure To Push The Facebook Button

One of the reasons Whatcom County and its citizens find themselves in the Reconveyance quandry is lack of information. 

Almost no one in the County, on either side of the discussion, really knows what the issues are and, more especially, how the law informs the issues.

I hope to begin filling that information vacuum by means of this blog and through other channels.

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