||| FROM DAWNI CUNNINGTON |||
OPALCO is currently attempting to overturn recorded deed restrictions that were already in place when it purchased the Decatur Island property.
OPALCO used our money to purchase a 20-acre parcel without even a feasibility period. At the time of purchase, the property was already encumbered by protected areas, including:
• A 3.84-acre Native Growth Protection Area (NGPA) covenant (AFN#2010-0810007)
• Nearly 7 acres of dedicated open space
(AFN#2012-0611001)
At a minimum you would think that they would have read the title report.
In addition there are Nine wetlands and their required setbacks as documented in the required Critical Areas Review.
Despite these known restrictions, OPALCO proposed expanding the existing 3-acre solar array by attempting to use a Provisional Use Permit. Only after substantial community pressure was OPALCO required to use the correct process — a Conditional Use Permit, as required under the land use table for Areas zoned RGU-5.
OPALCO has continued to spend large amounts of member money pursuing this application while ignoring the two recorded deed restrictions. Their site plans show that portions of this industrial-scale solar facility would be located directly within the protected areas.
When this was formally challenged, OPALCO abruptly changed its position and stated that the Native Growth covenant would simply be “removed or revised.” In a letter to the County Council, OPALCO proposed to “increase” the protected area from 0.31 acres to approximately 0.5 acres.
Let that sink in.
The covenant legally protects 3.84 acres.
Not 0.31.
Not 0.5.
This is either a serious misrepresentation of the facts — or a stunning failure to understand the property they purchased.
OPALCO then cited SJCC 18.70.070(F)(2)(x)(iii) as justification. That section has nothing to do with Native Growth covenants. It applies only to subdivisions and short subdivisions and merely acknowledges that private covenants may exist in addition to County code. It provides no authority whatsoever to alter or extinguish a recorded land covenant.
Did OPALCO really believe no one would read the code?
In the same letter, OPALCO claims that “the commercial building for which the original building permit was issued was not fully constructed.” Whether true or not, this is irrelevant.
This is not a performance bond.
This is a permanent land covenant recorded on title. It is legally binding and was accepted by OPALCO at purchase.
OPALCO is also ignoring the larger open space covenant that was required in 2012 during a Simple Land Division. If they succeed in eliminating the Native Growth covenant, it is reasonable to expect they will attempt to undo the open space covenant next.
This cannot be allowed.
Allowing a developer — even a co-op — to erase recorded environmental protections would set a dangerous precedent and undermine every conservation covenant in this county.
On the attached map, you can clearly see OPALCO’s proposed solar footprint (in red) overlapping protected areas (in green).
This is not responsible stewardship.
It is an attempt to rewrite binding land protections after the fact — using your money.
I just want to fully emphasize two facts
Decaturites are not against Solar. We are against clear cutting a healthy forest.
Decatur adores and appreciates the crew that comes here and takes care of our islands needs
**If you are reading theOrcasonian for free, thank your fellow islanders. If you would like to support theOrcasonian CLICK HERE to set your modestly-priced, voluntary subscription. Otherwise, no worries; we’re happy to share with you.**
OPALCO continues to work through the County process for this project. We will address all issues that come up-it does take time to address these issues in a thoughtful and accurate way. As with all major projects there are a variety of factors to work through and OPALCO remains committed to complying with environmental requirements and code. You can find all information about this project including our initial response to this issue here: https://co-sanjuan-wa.smartgovcommunity.com/Parcels/ParcelDetail/Index/6090b7ca-2b45-4414-9ab7-aa8cb585743e?_conv=1
I appreciate The Orcasonian and Ms. Cunnington airing this issue, and the opportunity for both San Juan County and the OPALCO Board to respond publicly. At its core, this raises a simple but consequential question, whether San Juan County stands behind the environmental protections it records in deeds and covenants, or whether those protections become negotiable after the fact when they interfere with a project that failed to acknowledge them during feasibility review, purchase, and a year of subsequent planning.
It is equally important to look closely at the project history that began with the 2018 pilot installation and is continuing today. A careful review of OPALCO’s recent letter (linked in the email below that was submitted to the Council and OPALCO Board) raises additional concerns beyond those already discussed. Key facts and calculations do not align, there are internal inconsistencies, and the request to revise recorded covenants appears timed to sidestep an active SEPA DNS appeal that specifically calls out deficiencies in the underlying applications.
Beyond the substance of this single proposal, the precedent here is deeply troubling. This expansion is a direct follow on to the original pilot project, one I invested in and watched unfold with broken commitments and procedural shortcuts. The current request, combined with OPALCO’s unwavering advocacy for an Essential Public Facility designation, makes it difficult to reconcile stated commitments to environmental protection with the actions being taken.
Asking elected officials to weaken or revise recorded environmental protections after purchase is not a minor technical fix. It goes to the credibility of the County’s land use system. How the Council and OPALCO Board respond will matter far beyond this project, because it will signal whether recorded covenants and environmental protections across San Juan County are durable, or merely provisional.
I am posting the full email that was sent to the Council and OPALCO Board in a second comment below for context.
Alan Mizuta
Decatur Island, WA
For context, below is the full email submitted to the San Juan County Council, County Manager, DCD Director, Prosecutor, and OPALCO Board regarding the proposed post-purchase revision of recorded Native Growth protections:
Sent: Thursday, February 12, 2026 11:20 AM
To: SJCC Council, SJC DCD Director, SJC Prosecutor, OPALCO Board
Subject: Subject: New Issue Before Council: Post-Purchase Revision of Recorded Native Growth Protections
Dear Councilmembers and County Manager,
There is an old saying: Fool me once, shame on you. Fool me twice, shame on me.
In 2018, OPALCO secured approval for its Decatur solar installation under a Provisional Permit when a Conditional Use Permit should have been required. That procedural path avoided the scrutiny and public participation a CUP demands. The County did not require a CUP at the time, and the issue was only identified after the project had already been constructed. A pattern began.
In 2026, we are watching that pattern repeat.
OPALCO again attempted to advance this expansion under a provisional framework and pursued a Boundary Line Modification to characterize the newly acquired parcel as merely a minor extension of the existing facility. Only after the community raised objections did the County acknowledge that a Conditional Use Permit is required for this project, just as it should have been in 2018.
On the newly acquired property, recorded Native Growth and Open Space covenants were clearly disclosed in the title report. These restrictions run with the land. They were binding when OPALCO purchased the property. They were not hidden. Yet OPALCO designed an expansion that conflicts with those restrictions, proceeded through SEPA, obtained a Determination of Non-Significance, and only after the deeded limitations were identified did OPALCO acknowledge them and signal an intent to seek revision by the Council. That sequence brings this matter before you today.
That is not hardship. It is planning around a restriction and addressing it later.
The attached composite drawing makes this unmistakable. It overlays OPALCO’s Phase A and Phase B permitting areas with the recorded Native Growth Areas, the 30 percent Open Space covenant, and mapped wetlands and setbacks. The proposed development footprint is not adjacent to these restrictions. It is intertwined with them. The areas identified for clearing and installation overlap directly with deed-restricted land that was recorded to remain protected.
Now the County is being asked to revise those recorded environmental protections after purchase because they are inconvenient to the proposed design. OPALCO has suggested a fractional acreage trade, shifting boundaries in exchange for a nominal increase elsewhere. Recorded Native Growth and Open Space areas are not interchangeable parcels on a development chessboard. They were imposed for specific environmental purposes tied to specific land.
This is not the first time the sequence has unfolded this way. In 2018, panels were installed immediately adjacent to Public Works property beneath 75-foot fir trees that predictably cast shadows. The response was not to redesign the siting, but to later request removal of standing timber owned by the County, which proceeded without any additional land-use permitting process. Today, development is proposed within deed-restricted Native Growth areas, followed by a request to revise the restrictions. OPALCO has also indicated plans to extend private well water infrastructure across these same restricted areas to serve additional parcels, raising unresolved permitting and environmental questions.
Proceed first. Resolve conflicts later.
If the Council grants revision of the Native Growth covenant, what principle remains? Will the recorded 30 percent Open Space covenant covering much of the forested Phase A area be next? That Open Space area was created as part of a simple land division and runs with the land regardless of boundary line modifications. If one recorded protection can be renegotiated after purchase, why would the next not follow?
At what point does the County say that recorded covenants mean what they say?
OPALCO is a sophisticated utility. It conducts due diligence. It reviews title reports. If it failed to account for recorded restrictions before designing and advancing this expansion, that is not grounds for post-purchase relief. Granting that relief would signal that environmental protections in San Juan County are negotiable once a project gains momentum.
This is not about opposing solar energy. It is about whether the County will defend the integrity of its land-use system. Recorded environmental covenants are relied upon across this County by neighbors, landowners, lenders, and the public. If they can be revised whenever a well-resourced applicant claims surprise, they cease to function as protections and become temporary obstacles.
Fool me once was 2018. If the County chooses to revise binding covenants after purchase in 2026, that decision will define whether San Juan County stands behind the environmental protections it records.
Link to composited map (with embedded links):
https://www.dropbox.com/scl/fi/fnnb9wnh2gdb7vrs1rjn2/OPALCO-SiteDesign_AreaAB-Native-Growth_Open-Space_BLM-Composite-FINAL.pdf?rlkey=mnw4djtui3uftumxjfx0xegyv&dl=0
Link to Intent to Revise Native Growth Covenant Received 9 FEB 2026-2:
https://co-sanjuan-wa.smartgovcommunity.com/Blob/df3f370b-e6d4-4efa-b6ed-b3ec017db060
Sincerely,
Dawni Cunnington
“Commitment to comply with environmental requirements”…. Or just try and get them changed? First challenges to zoning, trying to get the Native Growth Covenant removed, open space area ignored? What’s next? Do will really need those shore setbacks or view corridors here in San Juan County?
One would think that these deed restrictions either have weight and are strongly enforced, or that any of us are free to ignore such restrictions when we see fit should we find them inconvenient for our purposes! As has been pointed out in prior comments, this would seem to have profound public policy implications. Not being a lawyer or land use expert, I’d think that granting exceptions in similar circumstances is rare at best if ever.
The proposed project had so many headwinds, this being one of many: The logic of the basic premise of commercial solar in the San Juans, the placement on an island lacking fire protection and transportation infrastructure, the undue burden relative to other islands in light of Decatur already hosting a site, the failure to consider available open sites, downplaying drainage, wildlife protection and so much more.
Having watched this process unfold, I suspect this recent revelation was one more sloppy misstep by a determined team making things up as they go along, starting with indefensible initial premises, followed by many more by our coop owned by the users. History will not be kind.
This letter from Ms. Cunnington begs the question – Will the San Juan City Counsel/Code Enforcement and Department of Community Development uphold Covenants in San Juan County? Or are they viewed as whimsical and disposable?
Covenants are legally binding, enforceable contracts attached to a property deed that regulates how land can be used, they “run with the land” meaning they are mandatory for current and future owners.
If OPALCO failed to do their ‘Due Diligence’ when buying property, (or starting projects) shame on them, and please note it is the Owner/Members who are paying that price.
Will the San Juan Counsel bend to the pressure from Opalco to fix it’s mistakes? We will see…
Krista, thank you for the link. I encourage everyone to follow it down to “Applications,” then click the second blue link.
There you can read Charlie Conway’s fact-filled challenge to the Determination of Non-Significance that Opalco received on their SEPA application.
As Dawni Cunnington pointed out so thoroughly, “the property was already…protected…,” and had OPALCO properly evaluated feasibility, the covenant would have been accounted for prior to advancing this proposal recognizing it as a controlling land-use factor.
Instead, OPALCO positions the covenant as the obstacle, rather than the solar array proposal. By titling the letter with the intention to revise the covenant rather than the project proposal:
“Intent to Revise Recorded Native Growth Area Covenant (Auditor’s File No. 201-080007) for the Decatur Solar Project Property”
Framing the covenant as needing revising reverses the burden because it assumed the project as a constant. From a land use and SEPA perspective, that inversion matters. Under the State Environmental Policy Act and the San Juan County Code, the proposal must demonstrate consistency with existing environmental designations and recorded encumbrances — not the other way around.
A recorded covenant is not an inconvenience; it is part of the legal condition of the land.
OPALCO’s “Intent to Revise” the covenant, rewrites the narrative to:
– Normalize alteration of recorded protections,
– Frame revision as administrative housekeeping,
– Move the discussion away from whether the solar array is appropriately sited.
The scrutiny shifts from “Is this the right location for this project?” to “How do we modify existing protections to accommodate this project?”
The recorded Native Growth Area Covenant was a discoverable and material land condition PRIOR to OPALCO’s acquisition of the property. Under SEPA and applicable San Juan County Code provisions, site feasibility and regulatory consistency should precede purchase and project advancement. No feasibility assessment was conducted prior to acquisition, and the current effort to revise the covenant is attempting to correct an internal due diligence omission rather than to address the project’s incompatibility.
Karen Pearson
Decatur Island
we now have a website dedicated to information for and from OPALCO members at: http://www.OurOpalco.com
Rikki, thank you for the input, (thanks to everybody). I noticed that when I clicked on the website you provided it leads to multiple pages of both “OPALCO” and “EUROPALCO” sites to choose from, (with all of the OPALCO ones looking like material that has been covered already).
Am I overlooking something, or not trying hard enough? Perhaps you could you give us the title to the website to simplify the search? Thank you.
MJ, Try clicking again ,… works for me. The first page on the http://www.OurOPALCO.com site has not been published as yet in the ORCASONIAN. It’s a short concise list of points why solar doesn’t work here. It serves no purpose. Read the points! Thanks, rikki