||| FROM DAWNI CUNNINGTON |||
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):
Link to Intent to Reivse Native Growth Covenant Received 9 FEB 2026-2:
https://co-sanjuan-wa.
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