04/08/2009: "Appeals On Dump FEIS Delayed By County"

The two recent appeals of the FEIS (Final Environmental Impact Statement) on proposed sites for a new -or upgraded- transfer station for San Juan County will not take place anytime soon.

County Administrator Pete Rose explained to the Council they could decide to use an exception in state law that would allow the County to ignore their own county code to “consolidate the appeals hearing with the hearing on the first governmental action, which would be the Conditional Use permit to place the [solid waste] facility,” and instead, hold a hearing just on the appeals, without consolidating with a future permit.

County Prosecutor Randy Gaylord told the Council that the exception to a requirement that consolidation of appeals with a hearing on a permit must take place at the same time, is granted only to local governments “when the applicant is an agency that is a proponent for the project; which is what we have here: Public Works is a proponent of the project;” in which case the “consolidation need not occur.”

As so often seems to happen with county government, there is irony in all of this, because as Gaylord explained, “This [consolidation of appeals] was part of regulatory reform in 1995.... in response to complaints that there were multiple, serial appeals being filed and projects could not get off the ground or were being delayed unnecessarily.” Because appeals could last for years as they moved through the process, and then perhaps were continued to a court of appeals, and then the state supreme court, the state changed the law to require permits and appeals to be held at the same time; that is, except when it was the government that wanted a permit.

So the Council had to decide which way to go, or as Rose told the Council: “At the end of the discussion the Council can get up and walk away, at which time I will act to consolidate” the appeals or, as allowed under state law, “you will say: ‘Put something on next weeks agenda so we can take an action -that the public would know about- to either consolidate, or hold the public hearing separately;’” from a hearing that will be held once, and if, a landuse permit is applied for by Public Works sometime in the future.

Before the end of the day the Council did decide to “walk away” -Councilman Bob Myhr had already walked away before the end of the discussion to catch a ferry home to Lopez- and left the consolidation to Rose; and without allowing any public input on the decision.

The Council discussion on the appeals with Gaylord had been scheduled (but was not on the agenda) to take place at the end of the day on Tuesday, and to be an executive session, which would have closed off the discussion to the press and the public, but a decision was made at some point to move forward with the discussion in open session.

And a good thing too, because the action by the Council to take no action on responding to the appeals, is bound to confuse and upset those who wanted a hearing on the appeals as soon as possible, and by opening the discussion, the logic behind the decision was revealed.

Gaylord expanded to the Council on Rose’s comments, stating he believed the exception is in the law so a decision can be made on an appeal right away, so that if a long term decision is made by the county, it allows a decision on the appeals to “be made right now,” rather than wait for the project to apply for permits, and then find out there is a problem.

In response to questions from the Council, Gaylord explained that even if the County did not consolidate, and went forward with a hearing on the appeals now, it still would not give certantity to the question of, is it flawed or not, because additional appeals can be made.

Gaylord said the only finality on the adequacy of the FEIS will come at the end of all appeals; which could include an appeal to the Supreme Court.

Rose said in any case, the Council must move forward on making a site decision, because the DOE (Department of Ecology) requires them to move forward; regardless of consolidating or not consolidating.

With that, the Council took no formal action, thereby allowing Rose to move to consolidate the appeals with the first required hearing on a permit for a land use permit for construction on one of the proposed sites.

It may be possible for the County to apply for permits to make improvements on the Sutton Road site without triggering the need for a land use permit that would necessitate a public hearing; a hearing that will require a hearing on the two appeals. Time will tell; but the work sessions scheduled for the April 14th and 27th on the selection of a site will still be held.