posted August 9, 2024 – Gary N. McLean, San Juan County Hearing Examiner, issued a ruling August 8, 2024 that a Mitigated Determination of Non-Significance (MDNS) regarding a concrete batch plant was issued in error and needed to be withdrawn. He also ruled that a Conditional Use Permit (CUP) was required for the project. 

An application to site and operate a concrete batch plant in Olerin Business Park on San Juan Island was filed earlier this year. Despite five county planners making the case in the Dept of Community Development (DCD) that issuing a MDNS and not requiring a CUP were not compliant with the county code, interim DCD Director Kyle Dodd and interim county administrator Mark Tompkins overruled the planners.

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The five planners lost their jobs on July 9, 2024. Tompkins says the timing was just coincidental. 

Separate appeals were filed by the Neighborhood Legal Compliance Watch and Friends of the San Juans. The HEX consolidated the two appeals. 

SUMMARY OF DECISION

Based on unrebutted material facts and controlling code language, the pending appeals are granted. The challenged MDNS was issued in error and must be withdrawn. The applicant’s proposal to develop a new concrete batch plant on their property requires a new Conditional Use Permit, because the five-year limit for completing development authorized under the previous CUP issued in 2003 has expired.

II. FINDINGS.

… 11.There is no dispute that the Table of Allowable and Prohibited Uses in Rural, Resource, and Special Land Use Designations, found at SJCC 18.40.040, provides that “Concrete and Concrete Batch Plants” in the Rural General Use land use designation require a Conditional Use Permit.

…13. The applicant believes that their concrete batch plant was already approved by way of a Conditional Use Permit issued by a previous County Hearing Examiner is 2003 and the subsequent approval of a Binding Site Plan in 2005. The applicant asserts that a concrete batch plant was contemplated at the site for over 20 years, so a new Conditional Use Permit and further SEPA review should not be required for their project, brought forward in 2024. The applicant’s Response Brief explains their position as follows: [T]he [Concrete] Plant was already authorized and approved (and SEPA impacts evaluated) in 2003 and in 2005, and Carlson has the right to rely on his vested permits and proceed with operating the Plant without any further review or approval required from San Juan County. The instant appeals are untimely collateral attacks that are decades too late, and the Hearing Examiner should dismiss them with prejudice. (Response Brief, page 15).

14. SJCC 18.80.100.F, explaining the term of a conditional use permit or variance issued by San Juan County, reads as follows: F. Term. Unless a shorter time period is specified in permit conditions, development authorized through a conditional use or variance permit shall be completed within five years from the date of permit approval or the permit shall become null and void. An extension of up to one year may be granted by the decision-making authority if the permittee demonstrates good cause for an extension.

15.There is no dispute that a concrete or concrete batch plant was never constructed, developed, or completed on the applicant’s business park site within five years after the 2003 Conditional Use Permit was issued. Thus, even if a concrete plant could have been developed under terms of the 2003 CUP, such development is now time-barred, based on County code requirements now codified as SJCC 18.80.100.F.

…17. Similarly, the County’s representative in this appeal process did not submit a response challenging the effect of the five-year term in which a permittee must complete development authorized in a CUP, as raised in NLCW’S Motion.

18. A review of County Ordinances that originally adopted the five-year term – in which time all development authorized by a Conditional Use Permit must be completed, now codified in SJCC 18.80.100.F quoted above – confirms that the five-year requirement was on the books in County development regulations at the time the 2003 CUP was issued. The five-year term has not been extended, modified, or repealed since its adoption in 1998, through passage of the County’s original Unified Development Code.

…23. The MDNS was issued in error. The Deputy Director/Environmental Health Manager’s email explanation that: “The portable batch plant will be considered under the existing CUP approved at the time of the BSP which contemplated industrial uses on that parcel – concrete batch plant is an industrial use. The current proposal will require an updated SEPA review” was a mistake. (NLCW Motion, Declaration of Ms. Newman, Ex. E). A proposal to site any new industrial uses, including a concrete batch plant, in the applicant’s business park, which were not completed within 5-years of the original CUP approved in 2003, requires a new Conditional Use Permit. See SJCC 18.30.040. The challenged MDNS should not have been issued without first requiring a new application for a conditional use permit, and then the SEPA review for such application should move forward in a consolidated process, as mandated by State law and County SEPA regulations, including without  limitation RCW 36.70B.050, .060, .110, and .120, and SJCC 18.80.050, captioned “SEPA implementation rules”.

III. DECISION AND ORDER.

Based on evidence included in the record and controlling code language, including without limitation SJCC 18.80.100.F, as summarized by findings provided above, the challenged MDNS was issued in error. Accordingly, the NLCW Motion for Summary Judgment is granted. The MDNS issued on or about May 1, 2024 for the applicant’s proposal, assigned File No. LANDUSE-24-0045, is clearly erroneous and shall be withdrawn. The applicant’s proposal to site a concrete plant in the Olerin Business Park on San Juan Island requires a new conditional use permit. If an application for a new permit is submitted, it shall be subject to proper environmental review, in accord with State and County SEPA regulations.