Land Trust Intervenes In Reconveyance Challenge - Are They Threatening To Sue The County Or The Hearings Board If They Don't Get Their Way?

The following was released late yesterday.  Aside from the intervention is anyone else as puzzled as I am about why the Whatcom Land Trust holds conservation easements on 15 of our county park properties?  More on that later but, for now:

Press Release:  Jack Petree   360-733-1303

Subject:  Whatcom Land Trust Intervention In Petree Challenge To Growth Management Hearings Board

Title:  Whatcom Land Trust Positions Itself To Assure It Can Sue Whatcom County And/or The Growth Management Hearings Board In Superior Court Over Reconveyance

May 3rd, the Whatcom Land Trust moved to intervene in Jack Petree’s challenge of the Lake Whatcom Reconveyance before the Growth Management Hearings Board. 

According to Petree, the County’s challenger, “The land trust did not address the issues before the Board in its motion to intervene but, instead, appears to be worried about two non-legal issues.

First, the Trust complains, the County, “…may choose to settle with Petitioner on terms that substantially affect WLT, even though it (the Land Trust) is not a party.”

Second, the Land Trust worries that, “The County has no independent interest or motivation to advance or protect the property interests of any individual or organization.”’

Petree says he has offered to settle his challenge if Whatcom County will agree to suspend its reconveyance request until it has docketed and attempted, in a transparent public process, to dedesignate the land proposed for reconveyance and redesignate those lands to a zone that allows public parks.  Currently, he says, parks are excluded from the land proposed for reconveyance.

The County has rejected a transparent public process to change the zoning on the land, Petree says, but he is “…still hopeful the County Council will do the right thing and avoid the legal challenge now before the Board along with the expense and effort required by both Petree and the County when legal remedies are the only way to settle an issue.”

Second, Petree puts forward, it is interesting that the Land Trust is so worried about its own ability to control the Whatcom County Parks system.  In its request the Land Trust points out that it already controls, through the mechanism of conservation easements, 15 county park properties.  “Now the Land Trust seems to be worried it will lose the potential to control another 8,800 acres of land currently dedicated, by Washington State Law, to the preservation of Whatcom County’s timber industry,” Petree continues.  “I always thought the public should control its own parks but, apparently, the Whatcom Land Trust disagrees.”

Petree said he will oppose the Land Trust’s request for intervention because the Land Trust did not speak to the issues of the Petition for Review in its intervention request but will be surprised if the Trust is not allowed to intervene.  That could mean, Petree says, if he prevails at the Hearings Board the Land Trust could take the Hearings Board to Superior Court and possibly beyond in an attempt to overturn the decision.  Alternatively, Petree contends, if the county chooses to settle the issue with Petree the Land Trust’s intervention appears to be a thinly veiled threat to sue to stop the transparent public process necessary to rezone the land to allow for a public park. 

I thought you might like this from Wikipedia:
http://en.wikipedia.org/wiki/Conservation_easement

In the United States, a conservation easement (also called a conservation basement, conservation covenant, conservation restriction or conservation servitude) is a power invested in a qualified private land conservation organization (often called a "land trust") or government (municipal, county, state or federal) to constrain, as to a specified land area, the exercise of rights otherwise held by a landowner so as to achieve certain conservation purposes. It is an interest in real property established by agreement between a landowner and land trust or unit of government. The conservation easement "runs with the land," meaning it is applicable to both present and future owners of the land. As with other real property interests, the grant of conservation easement is recorded in the local land records; the grant becomes a part of the chain of title for the property.

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.