Plans for a new solar project on Decatur Island in San Juan County have met with yet another complication after new deed restrictions on the proposed site.
||| FROM SALISH CURRENT |||
Orcas Power and Light Cooperative — aka OPALCO — is asking the county to revise the restrictions on its Decatur Island property, but neighboring residents worry that doing so sets a dangerous precedent. The development comes ahead of a county decision on whether to grant a conditional-use permit for the project.
It’s the latest obstacle in OPALCO’s push for more solar in the islands. The co-op pivoted to the Decatur project in part to salvage a state grant it had hoped to use for a similar project on San Juan Island. The county paused the permitting process for that project after public pushback.
The restrictions — namely a Native Growth Area covenant and a simple land division — “run with the land,” meaning all present and future owners must abide by them. Both restrictions stipulate that the land remain largely undisturbed.
“The ramifications are bigger than, ‘Oh, you might have a big industrial solar blight next door to you’,” long-time Decatur resident Dawni Cunnington said. “If they’re allowed to roll back binding environmental protections, that opens the door and sets the precedent for that happening elsewhere in this county.”
Amending the Native Growth Area covenant requires county council approval, while the simple land division would need to be appealed to the Department of Community Development.
OPALCO proposes to do just that. The co-op sent a letter in February asking the county to revise the Native Growth Area covenant. In the same letter, the co-op said it had only recently been made aware of the restrictions despite purchasing the parcel almost a year ago.
The property’s deed lists the Native Growth covenant by name. The simple land division, while not mentioned explicitly, is referenced in supporting documents. It requires that 30% of the land be designated as open space.
“All these deeded covenants and the Native Growth Area and the open space area are, in fact, on the record and easily discoverable,” said Alan Mizuta, a part-time Decatur resident. “A year after you purchased it — I don’t know how we’re here now having these issues surface. It wasn’t a small inconsequential oversight.”
OPALCO spokesperson Krista Bouchey said the restriction was an oversight in the co-op’s review of the deed and the title, but that OPALCO is committed to making sure it follows all requirements moving forward.
“OPALCO is working through the county’s modification process and is confident the project will meet all applicable environmental requirements and still meet project goals,” Bouchey wrote in an email.
The proposed revision
OPALCO is asking the county to either reduce or revise the property’s Native Growth Area covenant, arguing that the conditions that prompted the covenant no longer apply.
The covenant was originally put in place as part of building permits issued in 2010, according to Planning Manager Darcie Nielsen. OPALCO contends that since the building was never fully constructed, the Native Growth Area may not be necessary for stormwater management.
If the county doesn’t approve reducing the Native Growth Area, OPALCO proposes reconfiguring the area “in a manner that maintains environmental protection while better aligning with present site conditions, the current site design, current county critical areas regulations and the land’s long-term ecological function,” according to a Feb. 9 letter to the county from OPALCO Engineering and Operations Manager Russell Guerry.
Bouchey clarified that the suggested change preserves the native growth covenant but moves it to a different portion of the property and expands the overall protected portion.
The co-op also has a revision to the simple land division in the works that will “more accurately reflect the current parcel.”
In a hearing examiner meeting for the project on Feb. 26, OPALCO’s team said the recent discovery of the restrictions hadn’t allowed time to modify the site plan and that the co-op’s first step was to seek revisions.
Guerry said that he wasn’t yet sure if there is enough land and property to both keep the current number of solar panels and comply with the deed restrictions.
“If we were to have to reduce (the number of panels), it may call into question some of the constraints of the grant itself,” he said. “But we can still work through this because of the viability of this project and the community funding that would flow into this project.”
Next steps
OPALCO is currently applying for a conditional-use permit, a type of permit required when a property owner wants to use their land in a way not normally allowed by zoning. In this case, OPALCO’s parcel has a Rural General Use zoning designation.
A hearing examiner meeting has been continued to March 6 at 10 a.m. due to the ongoing SEPA process. Two SEPA appeals have been filed so far, including one from Mizuta.
A staff report for the examiner notes the existence of both deed restrictions and that the county may limit how much of the property can be used for solar.
The report recommends approving the permit with conditions ranging from avoiding the Native Growth Area to not using pesticide or removing dead trees in habitat for Townsend’s big-eared bats.
Cunnington said her “stomach was sick” when she realized the report recommended approval.
Beyond the deed restrictions, she and other residents still have several concerns about the project, namely that Decatur is taking on more than its fair share of the county’s energy production and that OPALCO hasn’t seriously considered alternative sites.
Mizuta, once a self-described “optimistic and enthusiastic” investor in OPALCO’s first solar project on Decatur, has little faith in the co-op now.
“I really don’t know how you recover from this being that this should have been the prize pilot project that sets the cadence and the precedent,” he said. “I wish that they would pause and take a hard look at what’s happened and plot a new path and likely involve different management and different mechanisms and involve the community.”
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In the recent article by Sydnee Chapman in Salish Current, statements attributed to Krista Bouchey are less than factual.
San Juan County does not actually have a formal “modification process” for altering protected Open Space or Native Growth Area Covenants. According to the Department of Community Development, they can find no record of the County ever overturning or altering these types of protections. In other words, there has not been an established process for doing so.
These Covenants have been in place for more than a decade. They were recorded against the property title at the time OPALCO purchased it. They run with the land. That means all current and future owners are required to honor them.
The statement that the project “was not built out” is also patently false. The Native Growth Area Covenant was tied explicitly to two building permits (Permit #10-0183 and Permit #10-0184). It was required that that land be set aside as a condition to build those 2 structures. Both buildings were fully constructed in 2010.
In order to protect the heart of the island from being clear cut and replaced with industrial blight Decatur Island residents have now been forced to hire legal counsel to ensure that OPALCO does not somehow attempt to bulldoze through this healthy forest and long-standing protections.
Recorded environmental protections either mean what they say or they don’t.
This is very similar to the Shaw Island Public Works attempt to rezone a Rural Farm Forest parcel into an “Essential Public Facility” or an industrial site. The parcel the County is attempting to change is a part of an 1980’s short plat with clear residential use stated on the face of the plat. This similar deed restriction is being dismissed as the proposed zoning change “supersedes” this legal record per Colin at Public Works. Like this Decatur parcel, anyone else would be required to abide by these restrictions- but apparently not our County or OPALCO? Who decides what is “Essential” in our communities? When does the county or our public utilities ask for the communities input in advance long range planning? Involving the islands residents in these decisions IS essential! Anyone else tired of being told they (County/OPALCO) know better than us and we should just be quiet and be grateful?
OPALCO is seeking to revise this native growth covenant to allow for solar panels AND to have a native growth area. In OPALCO’s proposal it would increase the size of the protected area while being able to accommodate 700kw of solar energy. As stated in the covenant this modification is allowed. (See Section 3 Paragraph 2). OPALCO will work with the recommendations by County Staff to the Hearing Examiner. This process will be separate from the CUP/SEPA hearing and will be approved by County Council.
I attended Opalco’s meeting at the Lopez Library last fall when they were seeking to get a change to the Comp Plan and receive the Essential Public Facilities distinction. It was presented (as I knew it would be from their website) as just a bit of housekeeping that changed nothing anf just streamlined the permitting process… I had read about EPFs and doubted the validity of those statements. I asked more questions and was ASSURED about my concerns that NO corners would be cut, there would be NO attempt to circumvent ANY environmental policies and that “all rules that Polly Public would need to follow” would be followed by OPALCO. I told them flat out that I found this suspicious. I believe I said, “If it really changes nothing, I am suspicious why you want it so much.”
Here we are now, less than a year later fighting to get enforced the very protections I was concerned about.
Be suspicious! Ask the questions even when it takes several attempts to get any kind of answer. Right now this is a relatively small forrest on an island most of you don’t live on… But it concerns the environment in our beautiful county. This will set the precedent for other islands as they contend with choice OPALCO makes for them. Please understand that this is just the beginning of the special treatment they would NEVER ask for, the first of many projects.
Krista Bouchey as you are aware, the Native Growth Area Covenant clearly states:
“The covenant shall be of unlimited duration, provided, however, that if the regulations upon which it is based are ever lessen or revised such that a 13.52% native growth area covenant containing the terms and conditions here of would no longer be required.”
There have been no such revisions in San Juan County.
In addition, Section 1–A of the recorded document states:
“All trees within the native growth area as the date here of will be retained.”
Replacing this protected forest with an area that is already designated as protected wetlands does not retain the trees, as required by this covenant.
Please stop misleading the co-op member’s.