June 7th 2012

California Watch

by Susanne Rust

June 6, 2012

A state conservation agency's new policy on transparency and public disclosure is drawing mixed reviews, from lukewarm approval to condemnation.

The Wildlife Conservation Board's new policy outlines the rules for the public disclosure of appraisals for land acquisitions and conservation set asides.

The board oversees hundreds of millions of dollars in voter-approved bond funds, most of which are handed over to nonprofit conservation groups to purchase and manage land.

Until now, while all appraisals for purchases are subject to review by the Department of General Services, only “major” land purchases – those exceeding $25 million in state funding – are subject to an independent review before the deal is closed. The review is available for public viewing, but the appraisal itself is kept secret until after the deal is closed.

Under pressure from legislators and residents concerned about government spending, the board is now going to require independent review of purchases exceeding $5 million or 5,000 acres.

“I think this may be the most open and transparent process that we know about,” said Dave Means, assistant executive director of the Wildlife Conservation Board.

But some land trusts and conservation groups are worried the new policy, approved Thursday, adds too much complexity and bureaucracy to an already cumbersome process. However, others are questioning why any of these deals should remain secret when the state is facing a $16 billion deficit and services to children, veterans and the elderly are being cut.

“If the stakes were not so high, this would be comical,” said Sandy Dean, president of the Mendocino Redwood Company and critic of the board’s recent acquisitions of three properties in Mendocino County totaling more than $90 million.

The board has spent more than $1.2 billion in the past 12 years securing more than 460,000 acres of land for conservation purposes throughout California. It works by providing grant money to land trusts and conservation groups to acquire title or conservation easements, which are essentially permanent promises to never develop the land.

In a letter dated May 30, 12 land trusts and conservation organizations wrote to the Wildlife Conservation Board’s director, John Donnelly, applauding the board’s proposed policy and past decisions.

“Of the hundreds of projects WCB (Wildlife Conservation Board) has completed over the past twenty years, there is no documented evidence that a deep, broad or systematic problem exists with the state’s appraisal process,” wrote the group, which includes the Conservation Fund, the Nature Conservancy and the Trust for Public Land. “There is no widespread concern being expressed by the general public, land owners, local communities or others.”

The group worries that the 5,000-acre limit will hinder the board's purview to secure land and may scare off land owners.

Before finalizing the new policy, the board held two stakeholder meetings that included land trusts, landowners and appraisers. The board also looked at the policies of seven other states and two federal agencies.

In every case the board looked at, except one, the agencies withheld appraisals from the public until after closing the deal.

California Watch did its own small survey, and in three of the five states surveyed – Minnesota, Oregon, Pennsylvania, Washington and Wisconsin – appraisals are available for viewing before closing, but only after the government has decided to provide the grants.

Oregon releases the appraisal after closing on escrow, and Wisconsin doesn't release them at all.

The California agency says it keeps appraisals private to prevent the release of proprietary and confidential business information and to protect the state's negotiating power.

"If the appraisal got out, and other competing interests were able to see what the state was going to pay, they could come in and outbid the state," said Darla Guenzler, executive director of the California Council of Land Trusts. "It could put the state at a real disadvantage."

But critics say the new policy – and the old – may violate California’s Public Records Act.

In a case last year, the board granted $1.9 million to San Mateo County to purchase a parcel of land, called Pillar Point, from a land trust.

Assemblyman Brian Jones, a member of the Water, Park and Wildlife Committee, asked to review the appraisal before the property went into escrow, and he was denied. The board claimed a statutory exemption from California's Public Records Act, arguing it didn't have to release appraisals contracted by the state.

Jones then referred the case to the Office of Legislative Council, which wrote an opinion in Jones' favor.

It said because the appraisal was contracted by the landowner, and not the state, the exemption didn't apply.

“In summary, because we are not able to identify a public interest in not disclosing the real estate appraisal for the Pillar Point property that clearly outweighs the public interest in the disclosure of that appraisal, it is our opinion that the board may not rely on the public interest exemption,” wrote the office’s counsel.

“The board's new policy is a step in the right direction to provide more transparency,” said Douglas Haaland, chief consultant for the Assembly Republican Office of Policy. “But because the board serves as a banker, the exemption does not apply.”

Colin Mills, legal counsel for the Wildlife Conservation Board, said the Pillar Point case was unique and could not be applied to other land deals.

Means, of the Wildlife Conservation Board, said the board will review the new policy in 12 months to see how it is working. He said the board will adjust the policy at that time if needed.