Musings About The Reconveyance Challenge

The Hearings Board still has not decided what to do about jurisdiction over the Petition For Review regarding the so called Lake Whatcom Reconveyance.  Because of that I've been a little lazy about writing the brief that must go to the Board in a few weeks but, I will apply the whip to the mule that is my ambition and get to work in earnest this week.  It is a big undertaking.  I'll probably end up spending about a 100 hours or so on the thing.

I've also been musing over what to do about the fact that exactly at the same time the County was telling the Hearings Board in Olympia (in a telephonic hearing) one story about the Reconveyance it was telling the Board of Natural Resources in Olympia a different story in complete contrast to the story being told across town. 

A second thing of significant importance to citizens in upcoming years is the vast influence the Whatcom Land Trust has over affairs in the County.  They probably control more land in the county than anyone save for the State and Federal governments and, through their influence and control, have tremendous impact on the lives of the County's citizens.  Is that good or bad?  It may be time for discussion on that question.

Well, that is something for another day.  For now, any big news is likely to be the upcoming Board decision regarding jurisdiction and then there won't be much news for awhile... it will be blood, sweat and tears (if the County, and especially, the Whatcom Land Trust, can use hyperbole so can I) involved in writing the brief that will probably determine the outcome of the whole thing.

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.

Land Trust's Position On Reconveyance With Some Comments

Below you will find an opinion piece recently printed in the Bellingham Herald.  At the end, in reverse order are some comments by Jack Petree, David Stalheim and Jean Melious.

Sorry about the lack of paragraphs and such.  This is the way the thing copied from the Herald and I don't have the time or the inclination to fix the thing.

By CRAIG LEE AND RAND JACK — COURTESY TO THE BELLINGHAM HERALD
On April 9, 2013, Jack Petree filed a petition with the Growth Management Hearing Board to try to block the 5-to-2 decision by the Whatcom County Council to return 8,844 acres in the Lake Whatcom watershed from the Department of Natural Resources to local control by Whatcom County for use as a park. Whatcom Land Trust's petition to intervene in support of Whatcom County was granted May 10th. This transfer of ownership from commercial forest to park use is provided for by Washington statutes. The process is called reconveyance. Whatcom County does not have to purchase the property, but only to pay DNR's transaction costs. The acquisition of this property will cost Whatcom County less than $35 an acre.Because only a about a quarter of the reconveyed land is suitable for commercial logging, job loses and harm to the timber industry in Whatcom County will be very small, if any. The county will still be able to conduct timber harvest where and how appropriate to help defer the costs of managing the park.Whatcom Land Trust has worked with Whatcom County to support reconveyance for more than eight years. We have participated in the public process at every step of the way and have consistently provided the County Council with accurate information to help inform its decision-making. When concerns about lost timber revenue by the Mount Baker School District threatened reconveyance, the Land Trust reached an agreement with the school board to compensate the district for revenue lost due to the reconveyance. We see intervention in the Growth Management Hearing Board process as a responsible continuation of our involvement and support. Our intervention allows us to keep abreast of the proceedings and to participate to the extent it is helpful to the county. We hope that our intervention also signals to the County Council that we deeply appreciate its reconveyance decision and that our support is steadfast. Whatcom County retains the lead role in opposing the challenge.We continue to support reconveyance because it provides a number of significant benefits to our community:It will provide extraordinary recreational opportunities in an exquisite natural environment in close proximity to many city and county residents. People will be able to walk, run, mountain bike, horseback ride, enjoy nature and contemplate expansive views in an aging natural forest.By restoring natural ecosystems and minimizing ground disturbance, reconveyance will help protect the drinking water of about half of the county's residents. Though not a solution to Lake Whatcom's problems, a largely undisturbed forest filtering runoff and stabilizing slopes will help.This exceptional public amenity will help attract new businesses, creative entrepreneurs and skilled workers to Whatcom County. Studies show that increasingly businesses that will drive the economic future of communities in the west are drawn to communities with high quality of life and outdoor recreation opportunities. Reconveyance will conserve and enhance large contiguous parcels of wildlife habitat and functioning natural ecosystems. The forest will gradually take on old-growth characteristics.This critically located land will be returned to local control. Local government will make decisions in the interest of the local community.As a non-profit organization, we work for what we believe to be in the public interest of the people of this community - wildlife habitat, productive forest and farmland, open space and outdoor recreation, functioning ecosystems, healthy lakes, streams and seashores, and the scenic grandeur of Whatcom County. We think that these values will help produce a thriving local economy as we proceed into the 21 century. The Land Trust believes that most people in Whatcom County share this view of the public interest. That shared view brought together two Republicans and three Democrats on the County Council to vote in favor of the reconveyance.Whatcom Land Trust does not gain ownership or control of the land as some opponents have claimed. Ownership and control remains in the hands of Whatcom County. The Land Trust benefits from our support of reconveyance and our intervention only by furthering what we believe to be in the public interest of our community.

ABOUT THE AUTHORSCraig Lee is executive director and Rand Jack is a board member of the Whatcom Land Trust. For information about the organization, go online to WhatcomLandTrust.org.
Read more here: http://www.bellinghamherald.com/2013/05/24/3018021/land-trust-continues-support-for.html#storylink=cpy

Jean, sorry to associate you with Futurewise.  I know you were steering committee chairman last year.  If I'm out of date I'm sorry.  I also could have sworn that Futurewise has made farmland preservation a priority...since Ag and Commercial Forest are both resource lands of the county...oh well, I guess they've given up on that as well. 
Birddog, in the interests of fairness, the Herald has always been good about allowing me the opportunity to comment on issues even when they disagree pretty wholeheartedly.

David, the Nooksack River is also part of the water supply for those 100,000 people you mention as well as the water supply for a good part of the other 100,000 people in the county.  I'd ask if that means you don't want logging roads anywhere in the County but I think I already know what your answer would be so I'm afraid to ask.
 Jean Melious: I haven't commented at all on the Reconveyance -- there are lots of qualified and interested people, including the Land Trust, to take care of Reconveyance issues --  and do not support Jack's challenge.  I have used the term "de-planning" to describe the County's rural planning, not the Reconveyance.  Finally, I am not "of" Futurewise, although I do support its work.
birddog: I wonder if the opposing view will get a retort?  Oops, this is the Herald and this is their pet agenda.
 jackpetree:  It's unusual that an issue brings Jean Melious of Futurewise, David Stalheim and Jack Petree together in agreement but the Reconveyance Challenge does.  The challenge is not about the Park the Whatcom Land Trust wants established.  The challenge is about the legality of changing uses on land dedicated to support for the timber industry by law without the transparent public process required by law to effect such a change.  Jean and David have labelled the process taken by the county, "deplanning."  It's as good a term as any.  I am surprised Futurewise has not intervened on my side as they claim to have preservation of resource lands as a prime directive.
David:Stalheim  Jack, I have no idea why you think that I would be in agreement with you regarding your challenge to the reconveyance. I don't encourage dairy farms over oyster beds, and I don't encourage building logging roads in the water supply of over 100,000 people. Your challenge has no merit, and it has no substance. I will be fully supportive of Whatcom County, as well as the Land Trust in their intervention in this matter.

Read more here: http://www.bellinghamherald.com/2013/05/24/3018021/land-trust-continues-support-for.html#storylink=cpy

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.

As always, remember to "share" this post with your facebook friends.

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?

Whatcom Land Trust Allowed To Intervene But Is Restricted To Addressing Challenge Issues

The pre-hearing conference between the Western Washington Growth Management Hearings Board, Jack Petree and Whatcom County was held this morning.

Despite not having yet been accepted as an Intervener, Whatcom Land Trust's attorney, Heather Wolf, called and signed into the conference as well.

Don't Forget To Share On Your Facebook Page Etc.

Whatcom Land Trust's view of how large the local forest products industry should be

The land trust participation was a good thing in the sense that we were able to address my objections to the Trust's participation today without having to disrupt the schedule.

The Land Trust was allowed to intervene in the case but, the Trust was limited by the Board to addressing only issues brought up in the challenge to the reconveyance so, the potential for a circus revolving around issues having nothing to do with the reconveyance is avoided.

Lots of work for the remainder of the month asking for new materials to be added to the exhibit list and so on. 

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.