Ebey's Landing Administrative History

Chapter Six:
LAND ACQUISITION AND PROTECTION

By the end of 1992, 1,350 acres of the 17,400 acre reserve had been protected by scenic easements or fee acquisition. The National Park Service is still in the process of negotiating purchases of conservation easements with private landowners. Piece by piece, as funding and landowner interest coincide, protection of historic and scenic viewsheds in the reserve increases. The Smith Farm case illustrates the effort required to satisfy both landowners and the goals of the EBLA comprehensive plan. The negotiations for this farm were conducted under pressure; in a polarized atmosphere that one analyst referred to as "environmental brinkmanship," the process nearly fell apart. Yet the final outcome pleased many people. This chapter will detail the Smith Farm settlement, and provide an overview of the land acquisition program and major land negotiations in the reserve to the present. [1]

Despite the sale of the Smiths' beach to the state in 1978, the conflict over development on Ebey's Prairie continued. In what one newspaper dubbed "the little spat on the prairie," the two main parties feuding over development on the prairie, the Smith Farm owners and the Friends of Ebey's, turned several times to the courts to resolve their differences. [2] To the Friends of Ebey's, the new "checkerboard" pattern of ownership on the Smith Farm was intended to circumvent planning laws and raise the value of the property. But as far as Bud Wagner was concerned, he was helping the Smith widows; the checkerboard division of the land had simply distributed the land equitably among the owners. With such strong positions, both sides grew increasingly frustrated with each other. [3]

In July 1978, the landowners submitted short plats for the northwest ridge and the bluff along the beach. [4] Potentially, each parcel of these 18 parcels could be subdivided into a total of 72 lots. In August the county planners denied the request, citing the Island County comprehensive plan's designation of the land as agricultural as the reason for denial. At the same time, county prosecutor David Thiele questioned the custom of exempting the division of tracts of five or more acres from long platting requirements. The five-acre exemption, he argued, had continued only by custom, not by law. But the Island County commissioners upheld the practice, since they felt that precedents had been set. Bud Wagner received a permit that would allow him to cut a road across the farm, with access to all 61 parcels. [5]

In consternation, Ken and Claire Pickard kept watch on these developments from their home on the ridge. The thought of a road crossing the open fields was too much. In September 1978, Friends of Ebey's attorney Roger Leed filed their lawsuit, naming not only the farm's owners, but the Island County commissioners and planning director Syd Glover in the suit as well. In the suit, Leed requested an immediate injunction against further road building. He also requested a reconsideration of Scholz and Wagner's division of both Ebey's Prairie and Keystone Spit, and accused the developers of an unlawful civil conspiracy to defraud the public by artificially inflating the value of their lands. The main issue, Leed told reporters, was "whether a county comprehensive plan is law once it has been adopted--whether or not a county has updated its zoning to conform with the plan." [6]

Bud Wagner "couldn't have been more shocked," he said, and was particularly puzzled about the complaint regarding the Keystone division, since the land had not been altered, or even staked. He also insisted that he had only good intentions for the development of Ebey's Prairie. He claimed that the state parks department needed a road to the bluff if the beach were to be made accessible to the public. But state assistant parks director Jan Tveten denied the need for more roads on Ebey's Prairie, and the state deputy attorney general, Malachi Murphy, scoffed at Wagner's characterization of the road as a good-will gesture. 'That's baloney," he told reporters; "they've done it for purely practical business reasons." However, a Snohomish County Superior Court judge assigned to the case denied the preliminary injunction to stop road building because Wagner and the Smiths assured the court that they did not intend further construction. A trial was set for December 1978 to decide the remaining issues. [7]

When the Parks and Recreation Act establishing the reserve passed in November 1978, hopes rose on all sides for a solution to the Smith Farm issue. With a $5 million authorization, many thought that the National Park Service could resolve the conflict quickly. A crop of alfalfa sprouted on the farm over the spring as the litigants waited to see what the NPS would offer. But by July 1979, no money had come from Congress; nor could it, until the EBLA comprehensive plan was complete. In the same month Snohomish Superior Court Judge Dennis Britt ruled that the landowners had legally divided the land, and the county issued Bud Wagner a permit to resume road building on the farm. In desperation, the Friends of Ebey's appealed the decision. [8]

But Bud Wagner was now determined to finish his project. On September 20, 1979, he warned in a letter to the Whidbey News-Times that "by the time you read this, the heart of the Ebey's Landing Historical District will be destroyed." Indeed, that day a giant yellow earthmover began to cut across the prairie. Wagner expected to add access spurs to all 61 parcels, which he and the Smith sisters-in-law would then sell undeveloped. "I hate to do this," Wagner said, but all of his proposals had been "denied, delayed or postponed" by the county:

I'm scared to death that [the county] will down-zone our land and then the historic reserve people would come around and offer to buy the development rights, but by then the value of the development rights would be practically nothing.

He had already agreed, he said, to sell six parcels overlooking the beach for more than $700,000. With the potential for 24 houses strung out along the strip, the view to Puget Sound would be permanently impaired. If Island County had promptly approved development plans for the ridge, Wagner stated to reporters, this would not have been necessary. [9]

Fuming at Wagner's "unreasonableness" when the land was "on the verge" of being paid for, the Friends of Ebey's speedily filed an emergency injunction pending appeal from the state supreme court. [10] This held for a few weeks; however, the court decided to permit the road work to continue, at least until the older lawsuit regarding the division of the farm was finally settled. Acting NPS Regional Director Edward Kurtz requested that the county commissioners impose a one-year moratorium to halt the developments on the farm and to allow the citizens' advisory committee to complete its work. T [11]he commissioners mulled this over but decided that a moratorium would be legal but too controversial. A letter to the commission from eleven local farmers, including some on the reserve's citizens' advisory committee, cautioned the commissioners to remember that farmers must be able to develop their agriculturally marginal lands. Although they offered no ideas, they requested a resolution to the stand-off on the prairie. The letter prompted the commissioners to establish a mediation committee in November 1979. It consisted of EBLA project manager Reed Jarvis, county commissioner Lou Romeo, county planning director Syd Glover, SWIFT leader Al Ryan, Whidbey News-Times reporter Dave Pinkham, Roberta Smith, [12] and Bud Wagner. For the duration Bud Wagner voluntarily suspended excavations. [13]

On the negotiating committee, Reed Jarvis attempted to give something to each faction. "[The NPS] came into a community where the sides had been dug in for years . . ." he told reporters. "We had our own little Gaza Strip here. You can't negotiate if you're polarized to such an extent that the only time you can communicate is through your lawyers in court." He said that some sort of development appeared inevitable on Ebey's Prairie; only the scope remained in question. He proposed to permit the sale of five-acre and ten-acre tracts on the prairie floor, trading densities there for more intensive development on the northwest ridge. [14] The NPS could then approach the new landowners on the prairie floor and offer to buy their development rights, perhaps allowing one house to be built on each tract. Jarvis admitted that it would be hard for "purists" to accept, but that the idea was realistic. Roberta Smith appreciated his pragmatism, but Al Ryan and the Friends of Ebey's were angry. To them, the arrangement amounted to subsidizing a subdivision with reserve funds, and violated the spirit of the Island County comprehensive plan. Albert Heath prepared mylar overlays dramatically illustrating what the development would look like, helping to solidify opposition to the proposed plans. Al Ryan would not agree to less than twenty-acre parcels on the prairie floor and the compromise failed. [15]

Privately, Jarvis counted on public outrage to stop the ensuing development of the prairie. He knew that the land would be worth more to the Smiths and Wagner with the roads completed. But he also hoped that public reaction to the earth movers would strengthen the Service's position and perhaps strike Wagner's conscience. It was also becoming apparent that the NPS would have to purchase the farm if it wanted to preserve the prairie. This was a departure from original NPS plans to purchase conservation easements only, but the Smiths and Wagner wanted to sell in fee-simple. Besides, Jarvis believed, the Service could offer Wagner a quick conclusion to his plans. He would have to open a land office and sell all the lots individually, whereas the NPS could buy the property in its entirety. Increasing Jarvis' urgency to complete an agreement was the realization that, if it were not settled quickly, pressure from potential purchasers might spiral the land values out of the Service's reach. [16]

The NPS already had to contend with those six sales in escrow on the beachfront. For the people who had contracted to purchase the lots, however, the future looked uncertain. In meetings with Jarvis, NPS lands acquisition specialist Harlan Hobbs, and Island County planners, the buyers sensed the reluctance of the land agencies to let the area go to development. At least one also believed that Wagner never intended to sell because he knew the government would purchase the land. Certainly Jarvis and Hobbs made no secret that they believed that the sales were not in the public interest. In reality, the sales were questionable. Because of the Friends of Ebey's appeal regarding the legality of subdividing the farm, the title company had listed the organization's lawsuit as an exception to title. Anyone purchasing a tract would have title conflicts if the courts ruled that the farm division was illegal. Primarily because of the clouded titles, the six land deals, which were set to close January 2, 1980, fell through. [17]

The Smiths and Wagner had retained the option to sell the entire property to the NPS. But the NPS had informed them that, if it could not purchase the entire farm, it might not buy anything. After the beach sales collapsed, Bud Wagner immediately sought a court order from Judge Britt requiring that the Friends of Ebey's post a $700,000 bond. The bond would compensate the farm owners for potential losses of sales in the event that the Friends of Ebey's lost their appeal to the State Supreme Court. Britt agreed to the bond, but lowered the amount to $200,000, which the Friends of Ebey's could not post. Because of this and the fact that the reserve still had not received its congressional appropriation, Wagner and Roberta Smith quit the negotiating team m February 1980. Their attorney announced that compromise had been lost due to "continued preservationist opposition to reasonable development in the area." The landowners would put all of their lots on the market, regardless of the title issue. "For Sale" signs sprang up on Ebey's Prairie, and an ad placed in the newspapers announced "Now at last you too can own land on Ebey Landing [sic]." [18]