Lake Cavanaugh Trust
THE LCIA IS NOT ASSOCIATED WITH THE LAKE CAVANAUGH TRUST, WHICH IS A SEPARATE ENTITY
Frailey Mountain Update - May 18, 2020
Breach of Covenant Lawsuit
Bob McCullough, a Lake Cavanaugh resident at 32927 South Shore Drive, has filed a lawsuit against two companies that propose to use a lot – 33242 South Shore Drive – in the Lake Cavanaugh subdivision #3 for ingress and egress to log portions of approximately 300 acres on Frailey Mountain.
When the original subdivisions for Lake Cavanaugh were platted back in 1948, there were restrictions placed on the lots that prohibits commercial use of the lots. Restriction #3 of Lake Cavanaugh Subdivision #3, where 33242 South Shore Drive is located, states: No Lots shall be used for commercial business or manufacturing purposes.
It is believed the reason that the companies want to use the property – 33242 South Shore Drive – is that it is more expensive to use other dedicated rights-of-ways to access the harvest areas. Environmental restrictions make accessing their proposed harvest areas more difficult and costly which may be why Weyerhaeuser sold the property before logging it in the first place.
A Breach of Covenant suit was filed in October 2019 to enforce the covenants that prohibit lots in Lake Cavanaugh Subdivision No. 3 from being used for commercial business.
On Thursday, May 14, 2020, the Judge denied our Motion for Summary Judgment. In the Judge’s words she felt that the history of logging in the area raised a factual issue as to whether the individuals that created the Plat of Lake Cavanaugh Subdivision No. 3 intended to excluded logging activity when it prohibited any lot from being used for a commercial business or manufacturing purposes. But we need to ask why would these individuals have included a Right of Way between the lots to access Frailey Mountain if not for logging? Because of this ruling the logging company is now free to misuse one of our lots for commercial purposes and as of this morning they have begun cutting trees and building the logging road.
In a continued effort to preserve our property rights, a Motion for Preliminary Injunction as well as a Motion to Reconsider will be filed as soon as possible and all efforts are being made to be prepared to proceed to trial.
Time is of the essence and your support is needed now more than ever. A hearing on the new motions should be on May 29th . Please contact your County Commissioner Ken Dahlstedt as well as the other County Commissioners – Ron Wesen and Lisa Janicki – and ask for his support in this miscarriage of justice.
Office Hours: 8:00 a.m. – 4:30 p.m.
Address: 1800 Continental Place, Suite 100
Mount Vernon, WA 98273
Phone: (360) 416-1300
Lake Cavanaugh residents pay some of the highest property taxes in ALL of Skagit County and that should provide something besides a snowplow in the winter for all our tax dollars. To date, Bob has covered all the costs of this suit personally but has been pledged financial support from many residents at the lake that are dedicated to protecting and preserving our property rights.
To donate to the war chest, you can send checks payable to:
Amicus Law Group PC IOLTA Account
Attn: Lake Cavanaugh
1325 Fourth Avenue, Suite 940
Seattle, WA 98101
Add Lake Cavanaugh on the Memo line on your check.
All donations will be tracked, and all unused portions will be returned pro rata to the contributor once the case is resolved. You can email Bob at firstname.lastname@example.org if you have questions and/or want to offer or pledge your support.
This lawsuit is not affiliated with The Lake Cavanaugh Trust or The Lake Cavanaugh Improvement Association.
Register to vote at Lake Cavanaugh so your voice will be heard in Skagit County.
Map of third revised proposed initial cut of Frailey Mountain
Lake Cavanaugh Trust Update - June 15, 2020
It is with a sad heart that I have to tell you that the Trust has officially withdrawn its appeal of the case against Nielsen Brothers Inc. Nielsen Brothers logged all of Unit 1 including the trees on the alluvial fan this past week. May 15th was the day logging could begin. Our Motion for Stay was denied by the Pollution Control Hearing Board on May 14th. They started logging Unit 1 on June 5th and per their lawyer cut the trees on the alluvial fan and all of Unit 1. Road construction is still going on as I write this.
The Trust’s basis of the Motion for Stay was the illegal proposed harvest of trees on an active alluvial fan. Nielsen Brothers and DNR stated it was “inactive”, our expert stated it was “active”. In addition, it was pointed out that our hearing had been scheduled for April 22, 2020 but due to Covid 19 was postponed by PCHB until June 22, 2020. The Trust had purposefully scheduled the hearing in April to be before the May 15 deadline.
In denying our Motion for Stay, PCHB stated,”…..On the technical question of the status of IAF-1(alluvial fan), it is also appropriate to give deference to DNR as the agency with specialized knowledge and expertise in this area of forest practices regulation.” The PCHB did not take into account the main reason for the Motion for Stay—-the fact that the hearing was delayed due to Covid 19 and thus past the cut date of May 15.
The trees on the alluvial fan are cut as are all the trees in Unit 1, the damage has been done. Therefore, there is no reason to pursue it further with PCHB and incur more legal costs.
Our lawyers filed a Withdrawal of Appeal on June 10 with PCHB and PCHB sent an official dismissal acknowledgement on June 11th. Case is closed on this Forest Practices Application (FPA).
It is hard to accept that we lost the battle but the Trust did make a difference. Nielsen Brothers Inc. submitted 4 different FPAs with 6 changes in total to these FPAs all covering the same area. Why did they do this? Because we kept challenging what they were doing. As a result the area that was logged, and may be logged, in Units 2 & 3 (Bob McCullough’s civil case) has been reduced. The Trust doggedly challenged issues like setbacks for streams and surrounding marble murrelet area, and steep slopes.
The Trust attempted to discuss purchase of the land and also tried to mediate issues with Nielsen Brothers. They did not want to talk about a purchase nor negotiate the various proposals we presented; instead our attempts were rejected. They clearly wanted to log the area.
The Road A issue with Skagit County Public Works goes down as another loss. In 1994 it was decided that the right of way could not be opened for access to the same area that Nielsen Brothers Inc. now owns. All of our calls, emails (over 90) objecting to the opening of that right of way to Public Works did no good. 39 of you showed up on July 3, 2019 for a Commissioners meeting. The Trust prepared a 100 page booklet for all
three commissioners with your objections to the opening of the right of way and concerns about safety for you and your homes with accompanying photos. It was pointed out what the proposed cutting on such steep slopes could do given the history of slides in this area. Evidence of past slides and flooding in the area covering the proposed logging was presented. The commissioners listened, talked to Public Works and gave their OK. Times are different now it seems than in 1994.
It has been nearly two years that the Trust has been involved in this fight. We are proud that we have been able to make a difference in what will happen within this current FPA, but frustrated by the way PCHB handled this hearing. We know that Nielsen Brothers Inc. intends to log the entire parcel of land they purchased in 2018. This current FPA is a small portion of that land purchase. The Trust will continue to monitor their actions and fight any additional Forest Practice Applications they submit.
Thank you to those who contributed monetarily and all the others who gave us encouragement. We may have lost these battles but we are not going away and will continue to fight for the preservation of the lake and the land surrounding Lake Cavanaugh.
Continue to check the Trust website for information: www.lakecavanaughtrust.com
Cathy Katte, President
And the rest of the Lake Cavanaugh Trust team: Tracie Douglas, Kimberle Brown, Bob McCullough, and Alex McCullough
Cathy Katte, President
Kimberle Brown, Treasurer
Tracie Douglas, Secretary