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Home » Archives » October 2005 » Appeal Upheld On Thor Black Permit

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10/06/2005: "Appeal Upheld On Thor Black Permit"


IG_BLACK-BOCC_Hearing-1 (23k image)(Stephanie O'day makes a point while Peter Eglick waits his turn. Lee McEnery with back to camera)

Citing failure of proper notice, burden of proof, and incompatibility to the surrounding area, the BOCC went against the staff recommendation to deny, and instead unanimously upheld an appeal by David and Jane Cable against Mr. Black's approved CUP (Conditional Use Permit) for a landscape materials yard, tub grinder and associated processing site.

The property is located on San Juan Island, just south of the end of the Friday Harbor airport, and has a land use designation of Rural General Use, which is one of the few designations that can, under appropriate conditions, allow a commercial/industrial use such as those uses contemplated by Mr. Black.

Mr. Black owns an excavating business and a machine called a tub grinder, mounted on a trailer, used to grind up such materials as tree stumps, limbs, and building materials; turning it into a mulch that can be used for anything from landscape "bark" to fuel.

When the original application (past story) for the CUP of the property was heard by the HE (Hearing Examiner) in May of this year, some of the neighbors expressed concern that the operation would generate noise and dust that would have a negative impact on the neighborhood. While the reason for the conditional use process is to address such possible impacts by imposing mitigating conditions on the use (hence the name), there is always the problem of defining what conditions are adequate to mitigate impacts.

While the question of the adequacy of the conditions was a part of the appeal, the Cable's attorney also raised a question on the adequacy of the public notice, maintaining that not all of the proposed uses were included in the original notice, such as on site grinding of sheet rock by the tub grinder But the main issue seemed to be the noise factor, and would the conditions proposed by the applicant to limit it, be successful.

Peter Eglick of the Eglick, Kiker & Whited law firm, attorney for Cable, argued that the HE failed to follow the law when he approved the permit without up-front proof from the applicant that the building of earthen berms would control noise to the degree necessary to meet the conditions of the permit. Eglick told the BOCC that the "key is, where does the burden of proof lie".

Stephanie O'Day, attorney for Black, pointed out that to test the noise levels against the proposed berms, the berms would have to be built, but the HE had ruled that if the beams did not control the noise, then as per the conditional use permit approved by the HE, that part of the operation could not continue. But Eglick said that the HE was in error, for that approach puts the burden of proof on his clients, on the neighbors, and ultimately on the County. Eglick told the Commissioners that under county regulations for a CUP, the burden of proving the noise could be mitigated was on the applicant, at the time he made application for the permit, and not after he was operating the equipment.

After three minutes of summing up by the attorneys, the BOCC entered into deliberations, then by a unanimous vote upheld the appeal; an action that negated the HE approval, and made all aspects of the permit null and void.

After the hearing O'Day said her client would take the case to Superior Court.


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