***Monday, February 26, 2018, at 9:00 a.m., Commissioners met in regular session with Chairman Dan Dinning, Commissioner Walt Kirby, Clerk Glenda Poston, and Deputy Clerk Michelle Rohrwasser. Commissioner LeAlan Pinkerton was out of the office tending to other matters.
County residents Marty Martinez, Terry Spence and Blue Sky Radio Broadcasting Reporter Mike Brown were in attendance of the meetings off and on throughout the day.
Commissioners gave the opening invocation and said the Pledge of Allegiance.
9:00 a.m., Road and Bridge Department Superintendent Clint Kimball joined the meeting to give the departmental report. A written report was presented. Road and Bridge has been hit with a lot of expensive repairs last week so they are a little behind in plowing as they are down two plow trucks, according to Mr. Kimball. Mr. Kimball listed the various mechanical issues vehicles and equipment have experienced.
The Boundary Area Transportation Team (BATT) meeting will be this Wednesday.
Mr. Kimball said as of tomorrow morning Road and Bridge will be issuing permits for hauling on roads. Road and Bridge is still brushing on Lions Den Road.
Mr. Kimball provided Commissioners with maps of the area of Black Mountain Road to be discussed with property owner Skylar Roberts as it pertains to drainage issues. The culvert in question runs across the road and there is also a driveway that should have a culvert and needs re-ditched, according to Mr. Kimball. The culvert in question has been there for many years and it has been plugged with straw bales. All the work would be done in the county’s right-of-way, according to Mr. Kimball.
Mr. Kimball said he would like to revisit assigning a fee for GIS and permitting matters and one reason is that it costs money to go out and visit various sites. If you just give someone a permit to construct a driveway, they never finish it. The Road and Bridge Department has copies of permits for driveways in their file and these driveways have never been constructed. If a fee was assessed with a percentage being refundable, maybe 75%, it would encourage people to complete their driveway approaches.
Commissioners were informed that Mr. Kimball will bring down the vacation schedule and accrued time that his staff will be using. Compensatory time accrued is also on the schedule to use up.
Mr. Kimball stated that as it gets closer to the time for the Idaho Transportation Department to open bids for the Alderson Lane to the Kootenai River Bridge project, he would like to ask the City of Bonners Ferry if they can request road grindings from the Idaho Transportation Department. The project goes to bid tomorrow. It was asked if the county wants to spend some time and county resources to accept asphalt grindings. Mr. Kimball mentioned there may be a trivial amount for grindings. Out of pocket expenses would be approximately $25,000.
The meeting with Mr. Kimball ended at 9:20 a.m.
Deputy Clerk Nancy Ryals joined the meeting at 9:20 a.m.
Commissioner Kirby moved to deny indigent case 2018-11. Chairman Dinning yielded the chair to second. Motion passed unanimously.
Commissioner Kirby moved to deny indigent case 2018-14. Chairman Dinning yielded the chair to second. Motion passed unanimously.
Commissioner Kirby moved to write off $1,884.00 on indigent account 2018-10 as the public administrator had distributed all funds from the estate. Chairman Dinning yielded the chair to second. Motion passed unanimously.
Deputy Clerk Ryals left the meeting at 9:23 a.m.
9:23 a.m., Boundary Economic Development Director Dennis Weed and Keller Associates Engineer Kyle Meschko joined the meeting.
Commissioner Kirby moved to sign Certificates of Residency for Haley Wenk and Miranda Wenk. Chairman Dinning yielded the chair to second. Motion passed unanimously.
Commissioner Kirby moved to approve the Property Tax Cancellation Form for parcel #RP63N01E040613T to cancel $1,897.82 in deferred tax as the new property owners put the property in Productivity generating a deferred bill and then changed their minds before December 31st and requested the deferred bill be canceled. Chairman Dinning yielded the chair to second. Motion passed unanimously.
Commissioner Kirby moved to approve minutes for the week of February 19 & 20, 2018. Chairman Dinning yielded the chair to second. Motion passed unanimously.
Mr. Weed introduced Kyle Meschko with Keller Associates as the engineer who is working on the regional sewer feasibility study.
Mr. Meschko provided a brief background and explained that the project came into fruition once a grant from the Department of Environmental Quality (DEQ) was awarded with a 50% match. This sewer feasibility project impacts Boundary County, City of Bonners Ferry, City of Moyie Springs, and the Three Mile area and it ranked highly on the DEQ list due to Moyie Springs’ situation. In addition, the Three Mile area’s growth is stunted as there is no sewer system in that location. This study, through DEQ, is looking at feasibility options and there are nine options listed in the contract. Mr. Meschko reviewed the executive summary sheet for the project, which are general steps to complete the work. The duration of time to complete the study is approximately nine months. Once the study is complete, the process will conclude with wrapping up a solution with a master plan. Chairman Dinning questioned if at the end of nine months will the County have everything through Task 8. Mr. Meschko said yes, that was correct.
Those present reviewed the page listing the cost breakdown. Chairman Dinning said for clarity that $143,000 gets the county through the feasibility study.
Mr. Weed said if we received no additional funding, the high end of the range would be $94,000. The GEM Grant will provide 10% to 15% so Mr. Weed said he inserted $15,000. Mr. Weed added that Idaho Forest Group will provide $25,000 as the affluent runs through their property so they will provide funds to keep their property separate from this. It was said since Moyie Springs operates without a discharge permit, it puts this project at a high priority. Mr. Weed mentioned that he thinks Burlington Northern Santa Fe (BNSF) may provide some funding at a lower amount and he added that this project is outside of the BNFS range so they probably don’t want to take on a sewer project, but he will at least ask. Stakeholders in this project will also be approached in hopes of raising $9,000.
Chairman Dinning said as we sit today, the county has $60,000 and may need $143,000. It was said the county needs to be prepared for the amount of $143,000. The United States Department of Agriculture will provide up to $60,000 in a 50/50 situation. Chairman Dinning said if Commissioners sign the contract with Keller Associates, is the county placing itself on the hook for $154,000. Mr. Weed said there is a $10,000 reserve.
Chairman Dinning said Commissioners will want to discuss this with Commissioner Pinkerton when he is back in town.
Clerk Poston asked if the County can obtain letters of commitment prior to signing the contract. Mr. Weed said some letters, yes, but some no, so he will look at trying to obtain commitment letters for what funding will be offered to the County. Chairman Dinning said if the County commits to this project, we’re looking at $90,000 and this would get the project through Task 8. Chairman Dinning asked what the feasibility study tells us at the end. Mr. Meschko said it will discuss the buy-ins from various entities and list how the plan will proceed.
The meeting with Mr. Weed and Mr. Meschko ended at 9:51 a.m.
Commissioner Kirby moved to authorize the Chairman to sign the Idaho Unified Certification Program through the Idaho Transportation Department. Chairman Dinning yielded the chair to second. Motion passed unanimously.
Commissioners recessed for a short break.
10:00 a.m., Boundary Ambulance Service Chief Jeff Lindsey joined the meeting.
Commissioner Kirby moved to recess as the Board of Boundary County Commissioners and convene as the Boundary County Ambulance Service District Governing Board. Chairman Dinning yielded the chair to second. Motion passed unanimously.
Commissioner Kirby moved to approve the minutes of the Boundary County Ambulance Service for January 22, 2018. Chairman Dinning yielded the chair to second. Motion passed unanimously.
Chief Lindsey said the County Emergency Medical Responder course is being held right now and it’s a course that provides training for a basic level of care so patients can receive care before paramedics arrive on scene. This course should end this week and then class participants will take a practical and written examination at some point in the future so Boundary Ambulance Service is excited about that. There will be medically trained staff within the fire departments.
Chief Lindsey said Boundary Ambulance Service is still moving forward with the Community Emergency Program, which is when a community health medic can be assigned to a patient to assess the patient’s needs and work with their doctor to fix their current situation. This is just an additional service provided by Boundary Ambulance Service.
Chief Lindsey said Boundary Ambulance Service is looking for a part-time administrative position that has an accounting background. The position would be approximately 10 hours per week.
Chairman Dinning mentioned the possibility of Boundary Ambulance Service administering the flu vaccine. Chief Lindsey said he spoke to someone at Panhandle Health District who told him that Boundary Ambulance Service would need to purchase the vaccines, but that is not the function of Boundary Ambulance Service. Commissioner Kirby said he would contact Panhandle Health District about providing vaccines as that is something they had discussed doing.
Chairman Dinning informed Chief Lindsey that Commissioners had met with the National Guard in Boise in February about the armory and were told the process has been turned over to the State of Idaho who will put the facility up for auction to other state agencies. The armory property is owned by both Boundary County and the State, both having 50% interest so if another agency does want to purchase the armory, they would need to buy out the half interest that the county owns, according to Chairman Dinning. Chairman Dinning said Commissioners need to find out from Boundary Ambulance Service what they want included in the proposed facility. Chief Lindsey said if South Boundary expands their station, they want to include space for an ambulance so that would change the need for a larger facility for Boundary Ambulance Service.
Chairman Dinning mentioned it may be time to perform annual maintenance on the county’s defibrillators. Clerk Poston said Deputy Clerk Stacie Watts in her office should have information as to the locations of the county’s defibrillators.
Chief Lindsey spoke of the community medical program and future reporting requirements.
10:12 a.m., Commissioner Kirby moved to adjourn as the Boundary County Ambulance Service District Governing Board and reconvene as the Board of Boundary County Commissioners. Chairman Dinning yielded the chair to second. Motion passed unanimously.
Chief Lindsey left the meeting.
Chairman Dinning discussed commenting on House Bill 462, which pertains to forest lands taxation. Last week Commissioners had made a motion to authorize Chairman Dinning to send in a written comment on this bill. Chairman Dinning mentioned that House Bill 462 takes current forest land values and changes them back to earlier years’ values.
Commissioners recessed for a short break until their 10:30 a.m., meeting.
Commissioner Kirby left the meeting to tend to personal matters.
The following meeting with Kootenai Tribe Administrator and Kootenai Valley Resource Initiative (KVRI) Facilitator Patty Perry was considered unofficial as only Chairman Dinning was present. The following are just the Clerk’s notes:
10:30 a.m., Kootenai Tribe Administrator and Kootenai Valley Resource Initiative (KVRI) Facilitator Patty Perry joined the meeting to provide information on this evening’s KVRI meeting. Ms. Perry briefly reviewed the agenda items for the meeting.
The meeting with Ms. Perry ended at 10:31 a.m.
Chairman Dinning tended to administrative duties.
Commissioner Kirby returned to the meeting at 10:57 a.m.
Commissioners and Clerk Poston discussed paying the vendors doing work for the Fire Safe Program prior to receiving funds from the State so there isn’t an extended waiting period for payment. If the program’s Grant Administrator, Panhandle Area Council and Project Manager, Inland Forest Management are also included on the same invoice as a vendor, payment to those companies will wait until the funds do come in from the state. Commissioners agreed to go ahead and pay the contractors for their work prior to receiving payment from the Idaho Department of Lands.
11:03 a.m., Courthouse Security/Bailiff Ben Reinhardt joined the meeting.
Clerk Poston added that the process of paying invoices has also changed in another way, which is to allow direct deposit from the State to the county as opposed to waiting for a check so the process can be sped up.
Once Commissioners sign the request for reimbursement, vendors can be paid, according to Chairman Dinning and Commissioner Kirby.
Commissioners and Mr. Reinhardt briefly reviewed the emergency procedures and response plan for the Courthouse as drafted by Mr. Reinhardt.
Chairman Dinning said if we can take certain incidents that are listed in the Emergency Management and Response Plan and lump them together with the same action and response, that should be done in order to keep this as simple as possible. Clerk Poston asked about implementing a test of the all page system and Chairman Dinning added implementing a test for a mock emergency situation. Mr. Reinhardt informed Commissioners of his thoughts in the event the Courthouse needs to be evacuated. Mr. Reinhardt said he had wanted to talk with Commissioners about evacuation matters in the event of a train derailment. Chairman Dinning suggested that Mr. Reinhardt get the opinion of Sheriff Kramer. Those present discussed making sure the metal detector will be ready to go in the event of screenings for contentious court proceedings.
The meeting with Mr. Reinhardt ended at 11:18 a.m.
11:22 a.m., Courthouse Maintenance John Buckley joined the meeting to provide Commissioners with an update on maintenance matters.
Mr. Buckley spoke of refinishing the wood around the windows at Memorial Hall.
Mr. Buckley said he spoke to the furnace repair company the other day about the furnace at Memorial Hall. Clerk Poston mentioned having made an attempt to learn the status of the display cabinet for Memorial Hall, but she hadn’t heard back from anyone. Commissioners and Mr. Buckley discussed changing Courthouse lighting and ballasts as well as a program offered through the City of Bonners Ferry pertaining to lighting efficiency and improvements.
Mr. Buckley said the carpet in the Public Defenders’ Office has been installed. The window in the Clerk’s Vault has been replaced, but the prior window will still be kept. Mr. Buckley said he added more lighting to the top outer corners of the Courthouse to improve lighting to the sidewalks and parking lot.
The Americans with Disabilities Act (ADA) handrail for the ramp on the south side of the Extension Office has been installed.
Mr. Buckley said he has been working on repairs and roof leaks at the North Idaho College campus building in town. Mr. Buckley also mentioned having done deep cleaning at both Courthouse entrances and he stated that he will paint the entrances at some point after building scaffolding. Mr. Buckley said with spring around the corner he has a lot of upcoming projects. The truck used for Courthouse Maintenance had a bad transfer case, but it has been fixed and is doing great.
The meeting with Mr. Buckley ended at 11:45 a.m.
Bailiff Ben Reinhardt stopped by Commissioners’ Office to ask about video conferencing in relation to a records request in a court sentencing matter.
Mr. Reinhardt left the meeting at 11:48 a.m.
Commissioner Kirby moved to recess as Board of Boundary County Commissioners and convene as the Board of Equalization. Chairman Dinning yielded the chair to second. Motion passed unanimously.
1:30 p.m., Commissioners held a Board of Equalization appeal hearing for appellants Wade and Carol Roberts for parcel #RP60N02W210160A. Present are: Chairman Dan Dinning, Commissioner Walt Kirby, Clerk Glenda Poston, Deputy Clerk Michelle Rohrwasser, Assessor Dave Ryals, Assessor’s Office Timber Appraiser Teri Cushman. Also present was Attorney John Finney who was representing the appellant and Bill Love representing Inland Forest Management. Appellant Wade Roberts participated in the hearing via telephone. The hearing was recorded. Chairman Dinning reviewed the appeal hearing procedures and administered the oath to those giving testimony. The Appellant presented one exhibit marked “Appellant Exhibit #1 (consisting of seven pages) and the Assessor also presented one exhibit marked “Assessor Exhibit #1 (consisting of two pages).
Attorney Finney said he is representing Wade and Carol Roberts and he stated that Bill Love is here representing Inland Forest Management and he will be acting as a witness and offering testimony. Attorney Finney reviewed the documents that had been provided in the packet of information for the Appellants to include the application for appeal, Timber Exemption form signed by the owners, the Owner’s Designation of Forestland Option Form FT101, as well as the Forest Management Plan, and letters both to and from the Assessor’s Office.
Attorney Finney said the issue before the Board of Equalization is the denial of the Assessor’s Office of the timber tax category designation for the landowner. There is a restrictive covenant that was placed on the property previously and that restrictive covenant is included on page two, Section three (3) of the Assessor’s exhibit. Attorney Finney said it’s important to note that the restrictive covenant doesn’t prohibit all logging, but that appears to be the conclusion of the Assessor’s Office. Attorney Finney reviewed this section as follows, the owners of the benefitted parcel may log or cause to be logged the benefitted parcel or any subdivision thereof, but only to remove dead, dying or diseased trees; or to thin trees to sustain a viable and healthy forest environment; or to clear a home site for residential use. There shall be no clear-cut or commercial logging undertaken on the benefited parcel. Attorney Finney added that this paragraph also states, In the event of any logging in compliance with this provision, the owner of the parcel shall comply with state requirements for cleanup in order to minimize the unsightly conditions and to minimize the potential for fire damage.
Attorney Finney said in his letter dated December 27, 2017, Idaho case law, as set forth by the Idaho Supreme Court, it does say that restrictive covenants such as this are enforceable in the State of Idaho, but the restrictions must be clear and not be ambiguous to be enforceable, and he added that in essence any ambiguity is interpreted as being viewed in favor of the restricted parcel, not in favor of the parcel that has the benefit of the restriction that’s placed upon it. Attorney Finney said Inland Forest Management has been engaged to prepare a forest management plan. Through a professional forester it complies with the unambiguous provisions of the restrictive covenant and does provide for and confirms that certain logging and management operations can move forward. The document itself does not define clear cut or commercial logging in its face given that there is the ability to remove dead, dying or diseased trees if that condition was across the whole property. That says you can affirmatively do it if it exists and potentially that there be no clear cut, for example, or commercial logging. Attorney Finney said he would submit that the provision does have ambiguity and would be interpreted in favor of the Roberts.
The covenant is a covenant between the two property owners and is not enforceable by the county, according to Attorney Finney. The county is not a party to this document. Restrictive covenants are interpreted as a contract between the parties and if there is an ambiguity, it would necessitate some alleged breach and then potential litigation flowing from that alleged breach by a party.
Commissioners had no questions at this point.
Attorney Finney introduced William Love. Mr. Love said he has been employed part-time by Inland Forest Management for the last seven years, prior to that he worked for the Idaho Department of Lands for 33 years and spent several years working for the Forest Service as well. Mr. Love said he is certified forester with the Society of American Foresters and he added that in a way of disclosure, Boundary County has contracted with Inland Forest Management (IFM) to provide assistance and coordinated with the hazardous fuels treatment program. Mr. Love said he had worked with Don Gunter with IFM some time ago, but hasn’t had involvement with that program in the last five years.
Attorney Finney said Mr. Love had prepared a forest management plan for the Roberts and he asked Mr. Love to explain what is involved. Mr. Love said typically a forest management plan is not defined in Idaho Code. There are some specifications that describe the content of a management plan, and lacking that specification and state statute, many local assessors have developed guidelines for a forest management plan. Typically a forest management plan involves describing current forest conditions, offering recommendations, often times up to a twenty year period. Mr. Love said as they work on the forest management plans they tend to be specific, especially for the first two, five-year periods. Once you get to the ten to twenty year period, Mr. Love said he provides recommendations, but they aren’t as specific recognizing that a lot can change in a forest. Recommendations are provided for that twenty year period.
Attorney Finney addressed Mr. Love and said in preparing the plan for the Roberts’ property, he was also made aware of the restrictive covenant language. Mr. Love said he was made aware and that was taken into consideration when developing the plan. Mr. Love added that in the beginning of the plan in the initial paragraphs he inserts the language from the restrictive covenants and in the recommendations he tries to identify how that recommendation will comply with that restrictive covenant. Attorney Finney asked Mr. Love to explain what the time frames in the plan would entail. Mr. Love said within the first five year period he would make a recommendation for surveying and improving access to the property. Currently there are no drivable roads on the property, but he did discover an old road that had trees that were approximately 40 years old growing so this road probably hadn’t been used since the time of the Sundance fire in year 1967. Any forest management plan is predicated on having access to the property so the first recommendation in the plan was to develop access to the property then to consider doing some pre-commercial thinning, which is just thinning small diameter trees that have no commercial value, as well as monitoring for forest health and taking appropriate action as needed for forest health. Attorney Finney asked Mr. Love if in his opinion as a forester, if those steps comply with the covenant provisions regarding removing dead, dying or diseased trees as well as thinning trees to sustain a viable healthy forest environment? Mr. Love said yes, as he pointed out in his plan the removal of dead or dying trees is what foresters would call “sanitation”, which is just a general recommendation to clean up the timber stand. Mr. Love said he also made recommendations in the plan, because there was mention of cleaning up, thinning or logging slash. Also in regard to thinning, we have two categories of thinning, one of which is pre-commercial thinning involving the thinning of small diameter trees with no commercial value. Then there is commercial thinning, which involves thinning trees with a marketable value. Mr. Love said he made recommendations and addressed both of those categories in the plan. Attorney Finney asked Mr. Love if both of those thinning categories would fall under maintaining a viable healthy forest environment. Mr. Love said that was correct. Mr. Love said both of those treatments are prescribed to maintain healthy, vigorous trees for future growth and thinning out the poor quality trees to also improve forest health as well as productivity.
Attorney Finney said all trees have a life cycle so every tree will fall under dead, dying or diseased tree. Mr. Love said that is correct and on this particular parcel he identified two timber stands, or two management units, because the 1967 fire burned over much of this property. Most of the parcel is in a young growth timber that is less than 50 years old, more specifically 30 to 40 years old. Along the Pack River, along the riparian zone, there is an area that was not burned in the fire. That particular management area, called the unburned, has more mature trees and they are healthy and vigorous, but any 100 year old tree can succumb to insect or disease problems at any given time.
Attorney Finney said the denial from the Boundary County Assessor’s Office was very short. The initial letter indicated the property would never qualify based on the covenant and the denial cover letter indicated that the matter was reviewed by Boundary County’s Civil Counsel and it was determined that parcel still does not qualify. There was no analysis provided so at this point Attorney Finney said he is looking forward to hearing from the Assessor’s Office and staff.
Chairman Dinning asked if the property can be commercially logged today. Mr. Love said yes, the property could be. The unburned timber type that he described does have merchantable timber. The timber that burned in the Sundance fire does have some trees that are approaching merchantable size at this time. Chairman Dinning clarified his question to ask if that meant the trees could be legally commercially harvested today. Does the covenant preclude the property from being commercially harvested? Attorney Finney said the opinion is that the covenant would restrict the removal of green trees to anything that did not result in a thinning of trees to sustain a healthy and viable forest environment. Attorney Finney said in his legal opinion, if the trees are green and crowded, the covenant would not prohibit that because it allows for removing trees; it does not eliminate the second part of the dead and dying. There are two categories, so to speak, of removing trees. Attorney Finney added that if the neighboring property owner felt this was going beyond that provision, the impetus would be on them to seek some form of, either a stop cutting order or some kind of relief, based on a breach. Chairman Dinning said yes, that would be a civil matter, but if a person has purchased property, depending on the viewpoint, you can or cannot commercially harvest. If the viewpoint is that you cannot commercially harvest, will that fit our timber exemption definition. Chairman Dinning said he is just trying to get some clarity. Attorney Finney said he understands what Chairman Dinning is getting at and that is why ambiguity works against the party trying to enforce it.
Assessor Ryals said he had no questions.
Chairman Dinning asked Assessor Ryals for his statement.
Assessor Ryals introduced himself and Teri Cushman, Ag and Timber Appraiser for his office, and Tevis Hull, the County’s Civil Attorney. Assessor Ryals said his presentation is very brief and he referred to definitions under statute 63-1701, Section 04. This section states, Forest Land means privately owned land being held and used primarily for the continuous purpose of growing and harvesting trees of a marketable species. Having met the above criteria, forest land may be further identified by the consideration of any of the following criteria. Subsection (b) states, forest land is land which has a dedicated use that is further evidenced by a forest land management plan that includes eventual harvest of the forest crop. Assessor Ryals said his office’s contention is not that the forest is not being used primarily for the growth and promotion of healthy forest; his contention is you cannot say that it is the primary use of the land because the harvest is precluded, with the exception of the sanitation and the thinning. Thinning is typically referred to, even in a management plan, as removing of the undesirables. Assessor Ryals added that there may be value to them or there might not be, but the idea with the forest program is that it is a commercial proposition. You grow trees, you harvest trees. The valuation is based on the harvesting of the trees. Assessor Ryals said he has heard the term ambiguous as far as the covenants are concerned, but it isn’t ambiguous to his office and he understands and it clearly promotes the growth of the forests. It clearly precludes the commercial harvest of the product and so for that purpose Assessor Ryals said he doesn’t feel it meets the primary use condition of the exemption.
Chairman Dinning referred to Section 63-1701, Section 4, it says having met the above criteria forest land may be further identified by the consideration of any of the following. Does that mean all of the following? Assessor Ryals said no, it means any/or. It could be all of the following, but it doesn’t have to. Assessor Ryals said he highlighted Section (b) because his office does require a forest management plan on all timber applications. Assessor Ryals said the management plan is in place, but it does not address the harvest. Chairman Dinning asked if there is a definition of commercial harvest anywhere. Assessor Ryals said no and added that logging, by nature, is a commercial enterprise.
Chairman Dinning asked Attorney Hull if he was in attendance of this hearing as a witness for Assessor Ryals or as County Civil Attorney. Attorney Hull said he was present as the County’s Civil Attorney.
Attorney Finney had no question of the Assessor.
Assessor Ryals said the covenants restrict the property to logging the dead and dying trees and restrict it to the thinning process and he added that in his mind that leaves the healthy trees that will stand until they die and the only way to get them out is if they do die. That kind of goes against the grain of the program. That is not the primary use of the land according to the rules of the exemption program.
Chairman Dinning asked if the appellant wished to rebut or make another statement.
Attorney Finney said some questions have helped to highlight Section 63-1701 (4), which provides the definition for forest land and it is contained in that first sentence. It does not require a commercial harvest, per se, it requires continuous purpose of growing and harvesting trees of a marketable species. Attorney Finney said that can be accomplished in the landowner’s opinion by removing dead or dying or diseased trees, or thinning to maintain the health of the forest. All those key words are stated in the covenant. As Commissioners’ questions have shown, the second sentence of Subsection 4 says that forest land may be further identified by the consideration of any of the following. So it’s not that you even have to show any of them and you don’t have to show all of them under the terms of the statute. In looking at paragraph b, the Assessor has talked about the primary use of the property and that doesn’t even say it has to be the primary use of the property. Subsection (b) says that forest land is land which has a dedicated use that is further evidenced by a plan and that plan includes eventual harvest of a forest crop. It doesn’t say the crop has to be green trees; it could be dead or dying, and firewood is mentioned in the forest management plan prepared by Mr. Love. Attorney Finney said the term primary has been used as the primary purpose of the forest plan that you recover through the harvest of, in essence, green trees, that is not what the statute says; it does not go that far. Attorney Finney said Subsection (c) says forest land is land bearing forest growth or land which has not been converted to another use. There is no residential structure. There’s no non-timber related commercial enterprise. There is no other use of the property; it’s still in bare land with forest growth on it. Attorney Finney said he would submit that, although there is language of no clear cutting and no commercial harvest, there is enough allowed under the covenant that does meet the statutory provision for the forest plan. Attorney Finney stated that as attested to by Mr. Love, his plan does provide for evaluating opportunities for commercial harvest, which as he talked about before, could be removing dead or dying trees, or thinning. Attorney Finney said you would need to have a profitable green forest crop, which we don’t, but if we did provide that, Mr. Love has provided for that eventuality in his forest management plan.
Assessor Ryals and Commissioners had no questions of Attorney Finney.
Chairman Dinning said he doesn’t know where this fits, but he is assuming there was a review of this matter by the County’s Civil Attorney. Attorney Hull said yes, there were actually two reviews; there was a submission last year regarding the exact same exemption and then there was the formal request this year and the same information was provided. Attorney Hull said his conclusion is that the property did not qualify due to restrictive covenants. Attorney Hull said he did read Attorney Finney’s letter and when he did, a large portion focused on that the county is not a party to the contract and he agrees with Attorney Finney’s analysis that CCRs on property are a contract between the property holders, but we are not enforcing a CCR in the standpoint of suing. What we have is a person who has CCRs on their land, which is an encumbrance, presenting it to the county for the purposes of getting an exemption for taxes and then it’s the Assessor’s responsibility to look at what restrictions are on the land. Once the Assessor’s Office looks at those restrictions on the land, they have to make a determination as to whether or not it fits under this forest land exemption. Attorney Hull stated that if the restrictive covenants were not there, it would qualify, but they are there and it does say commercial logging. Attorney Hull said he thinks we’re splitting hairs for the purpose of trying to make an argument, but when he, using common sense, looks at this definition under 63-1701, when it talks about marketable species, you’re not going to have a grove of cottonwood because it’s just not marketable in this environment. When you say marketable, you’re talking about the purpose of receiving money. When you’re talking about commercial logging, you’re receiving money for whatever the product is. Attorney Hull said when you talk about Subsection (b), it talks about a management plan for the eventual harvest of a forest crop. The crop is designed to receive money, which all tells him that it’s a commercial purpose and that commercial purpose is prohibited under the CCRs and therefore doesn’t qualify.
Assessor Ryals said he has no rebuttals to Attorney Finney’s comments.
Attorney Finney said Attorney Hull has brought up the covenants so he had just a couple questions for the forester regarding covenants on the property as opposed to the forest plan. Attorney Hull mentioned to Attorney Finney that he didn’t think the restrictive covenants made it into the record. The covenants are referenced in Attorney Finney’s letter and Attorney Hull asked Attorney Finney if he had any objection to making those restrictive covenants part of the record. Attorney Finney said he had no objection. For the record Chairman Dinning stated this would be Assessor’s Exhibit #2, but it was ultimately considered as Appellant Exhibit #1, consisting of seven pages.
Attorney Finney asked for Mr. Love’s opinion as a forester, in regards to the covenant, if green trees can be harvested consistent with language for promoting forest health. Mr. Love said in his opinion green trees can be harvested because under several provisions of the covenants where it specifies removing dead, dying or diseased trees, you could have a dying tree that is not completely dead, you could have a diseased tree that is obviously not dead at that point, but is going to die, it would still have commercial value and could generate revenue. Mr. Love added that in regard to the thinning, under commercial thinning that he mentioned, you are thinning green trees that have commercial value. Typically commercial thinning is done when the trees are approximately 12 to 14 inches in diameter. The purpose of that commercial thinning is to not only improve forest health and vigor, but also to have commercial income at that time. Mr. Love mentioned that in regard to the restriction of no clear cutting, many private forest owners, many of whom are in the timber exemption typically do not want their property clear cut, but they still manage to produce a commercial timber crop, they’re still making money on it. In some cases, with conservation easements to protect the property, there’s a restriction or prohibited use within the conservation easement that the property cannot be clear cut, but it’s certainly allowed to have timber management and to generate commercial timber products and revenue.
Assessor Ryals mentioned that Mr. Love addressed sanitation and thinning and he also indicated that this is all for improving the viability of the forest for the eventual commercial harvest and he wanted to check to see if he heard that incorrectly as he is fairly certain that would be excluded from the covenants. Mr. Love said the intent of the commercial thinning is to improve forest health, but it’s also to harvest trees at that time as well. Mr. Love said he did not intend to mean that every aspect of these recommendations is strictly for forest health improvements. Whether you look at the timber that is harvested as a byproduct or as the primary reason to do that project, you are producing revenue through that commercial harvesting. Mr. Love commented that the question is, as Attorney Finney pointed out, the ambiguity between where the covenant says may log or may cause to be logged for forest health when there’s the guidelines for slash cleanup to meet the state standards, it implies there is going to be some activity on the land. It doesn’t preclude commercial timber harvesting. There’s other language that implies that there might be commercial harvesting. Mr. Love said again, to reiterate, the benefitted parcel may log or cause to be logged.
Assessor Ryals said the only thing he could say is that he understands what Mr. Love means and he agrees with that, but he keeps coming back to the same spot. This is clearly designed to promote the health and viability of the forest, but it does not demonstrate the primary use of the land. The primary use of the land with this management plan in place is to grow the trees; it has nothing to do with the subsequent harvest, which is required.
No one present had any further comments.
Chairman Dinning said at this point, there being no further testimony, he will close the hearing to any more comments. Commissioners will try to reach a decision in time allotted and if not, they will continue the hearing. Chairman Dinning said he would like to have time to review this issue and he would like to obtain a copy of the document in totality.
Commissioner Kirby moved to continue the Board of Equalization appeal hearing for Wade and Carol Roberts, parcel # RP60N02W210160A, to Monday, March 5, 2018, at 1:30 p.m. Chairman Dinning yielded the chair to second. Motion passed unanimously.
Attorney Finney requested that he and Mr. Roberts both appear via telephone.
The hearing ended at 2:15 p.m.
Commissioner Kirby moved to recess as the Board of Equalization and to reconvene as the Boundary County Board of Commissioners. Chairman Dinning yielded the chair to second. Motion passed unanimously.
Attorney Hull remained in the meeting for the executive session.
Commissioner Kirby moved to go into executive session pursuant to Idaho Code 74-206(b), to consider the evaluation, dismissal or disciplining of, or to hear complaints or charges brought against, a public officer, employee, staff member or individual agent, or public school student. Chairman Dinning yielded the chair to second. Commissioners voted as follows: Chairman Dinning “aye” and Commissioner Kirby “aye”. Motion passed unanimously. The executive session ended at 2:30 p.m. No action was taken.
Attorney Hull left the meeting.
Treasurer Sue Larson joined the meeting.
2:30 p.m., Commissioners considered a hardship exemption application for Henry Watkins regarding parcel #RP64N01E068411A. Present were: Chairman Dan Dinning, Commissioner Walt Kirby, Clerk Glenda Poston, Deputy Clerk Michelle Rohrwasser, and Treasurer Sue Larson. Speaking on behalf of Mr. Watkins was his wife, Karen Watkins, who participated in the hearing via telephone. The proceedings were recorded. Chairman Dinning administered the oath to those giving testimony.
The amount to cancel for year 2014 is $397.90 including penalty, but without interest, according to Treasurer Larson.
Commissioners reviewed Mr. Watkins’ income as it is listed on the Hardship Exemption Application. Ms. Watkins informed Commissioners that she doesn’t have any income as she was laid off from her job, then her husband suffered various health issues. Chairman Dinning listed the Watkins’ income versus expenses and he added that the last time the Watkins had filed for a hardship exemption they had discussed trying to sell their Harley Davidson motorcycle. Ms. Watkins explained that she and her husband have had to lower the price on the motorcycle and in addition, the Harley Davidson Store in Spokane will no longer sell outside Harleys. Ms. Watkins said the motorcycle, which is a custom bike built in year 2004, is very much on the market.
Commissioner Kirby moved to cancel tax for year 2014 for parcel #RP64N01E068411A totaling $364.71. Chairman Dinning yielded chair to second. Motion passed unanimously.
The hearing to consider the hardship exemption ended at 2:40 p.m.
Commissioner Kirby moved to sign the Property Tax Cancellation Form for year 2014 taxes cancelling $356.90 in taxes and fees, $7.81 in late fees for a total of $364.71, plus interest and tax deeding fees in the amount of $301.51 for parcel #RP64N01E068411A. Chairman Dinning yielded the chair to second. Motion passed unanimously.
Commissioners tended to administrative duties.
Those present discussed the proposed contract/engagement letter with Cooley, LLP. It was stated this agreement may just pertain to a company name change from Navigant to Cooley, LLP. The engagement letter pertains to the county’s computers being affected by a virus.
Commissioner Kirby moved to authorize the Chairman to sign the engagement letter/contract with Cooley, LLP, as it pertains to the county’s computers, upon review of the county’s civil attorney. Chairman Dinning yielded the chair to second. Motion passed unanimously.
There being no further business, the meeting adjourned at 3:40 p.m.
***Tuesday, February 27, 2018, at 3:00 p.m., Commissioners’ did not meet in regular session as no meetings were scheduled, but Boundary County Commissioners’ Office did host an Idaho Association of Counties (IAC) conference call with Seth Grigg and Kelly Brassfield from IAC and various elected officials from the five northern counties.
DAN R. DINNING, Chairman
GLENDA POSTON, Clerk
By: Michelle Rohrwasser, Deputy Clerk