SAMISH RIVER / GRIP ROAD PROPOSED GRAVEL MINE
SPECIAL USE PERMIT APPLICATION (PL16-0097)
TIMELINE March 2016 – May 2020
March – October 2016
- Skagit County Department of Planning and Development Services (‘County’) publishes Notice of Development Application for Mining Special Use Permit (3/31/2016), from Miles Sand and Gravel/Concrete Nor’West (‘CNW’). “Letter of Completeness” for application issued on 3/22/2016.
- County issues State Environmental Policy Act (SEPA) Threshold Determination — Mitigated Determination of Non-Significance (MDNS) (5/24/2016).
- Community members who are aware of project send in comments.
November – December 2016
- County issues Notice of Special Use Permit Public Hearing and staff report (11/18/2016).
- On the day of the Public Hearing, County reveals that proper Notices for both the Development Application and the SEPA Threshold Determination, as well as the Notice of Public Hearing, were not issued to many of the landowners surrounding the proposed mine as required by law (12/7/2016).
- Public Hearing convened & then cancelled by Hearing Examiner due to Notice issues (technically Hearing is “continued”) (12/7/2016).
- Further investigation reveals that the required list of adjacent landowners, provided by the applicant to the County for notification purposes, was based on those landowners who were located 300 feet from the Assessor parcels containing the proposed mine site, not 300 feet from all of the applicant’s contiguous 700+ acre ownership. This resulted in only 8 landowners being contacted instead of 34; less than one-quarter of the surrounding landowners that were legally entitled to Notice received it.
- County issues a new Notice of Development Application on 12/15/2016 after the Public Hearing is continued.
- County extends the public comment period, but does not withdraw its original SEPA Determination, even though the deadline for appealing the SEPA determination passed well before many landowners received legal Notice.
- As community members are alerted to concerns, many more comments are submitted.
January – April 2017
- More than one-hundred comments received by County from the community about traffic safety and environmental concerns.
- County responds by requiring more information from the applicant and stating that a new staff report and SEPA threshold determination will be issued after additional information is received from CNW, but still does not formally withdraw its previous SEPA determination.
May – June 2017
- CNW sends a response to the County basically arguing that their original application materials are adequate and stating that the County already issued a letter of completeness, MDNS, etc (Cox to Cooper 5/15/17).
- County sets up link on County website with documents posted about the project including public comments and written correspondence between County and CNW.
July – August 2017
- County sends letter to CNW stating that the revised application materials submitted are incomplete and that the application will not be processed until requested information is provided (Cooper-Cox 7/06/17).
October – December 2017
- County sends letter to CNW stating that their application is still incomplete, and that they have 120 days from the County’s 7/06/2017 letter to submit requested information; and stating that the County will deny the permit if complete information is not received by 11/03/17 (Pernula to Cox 10/25/2017).
- County Attorney (Nicoll) forwards to Bray a series of email exchanges between Mr. Pernula (County Planning Director) and Mr. Cox (CNW Project Manager) regarding a phone conversations between them, whereby an extension of CNW’s application was apparently granted (Nicoll – 10/30/2017). In this email exchange Pernula states that: 1) CNW needs to provide a schedule for submission of additional info by 11/03/2017; 2) all required information must be submitted by 2/25/2018; 3) the parties also discuss meeting in person to “clarify” what additional information is required.
- Community members submit letter to the County objecting to the way the application extension was granted without any written record, nor meeting other requirements set out in SCC 14.06.105(1). The letter also expressed concerns about the lack of transparency and clear process, and asking to be kept informed regarding what the County is requiring of the applicant (Bray/Day to Pernula – 11/02/2017).
- CNW does not submit a schedule for its submission of additional information by the 11/3/2018 date cited by Pernula in his email to Cox and County does not follow-up to enforce deadline.
- CNW sends letter to County on 11/21/2017 referencing a meeting held with County staff on 11/20/2017, and vaguely responding to requirements to submit a schedule for submittal of additional info. CNW’s letter mentions a Noise and Vibration Study, and makes opaque references to the “remaining issues”.
January – April 2018:
- County issues formal Decision to deny CNW’s Special Use Permit Application as incomplete and for failure to timely submit requested information (Hart-Cox 4/5/2018 & Notice of Decision 4/5/2018).
- CNW formally appeals County’s Decision to Deny Application to the Hearing Examiner (Cox & Lynn/received by County April 16, 2018).
- Eleven community members file a request to Hearing Examiner to be recognized as interveners or party to the appeal (Bray to Dufford 5/8/2019).
- Community members and their attorney attend Prehearing Conference, where the County Attorney announces that community members request to intervene “is moot” because “settlement discussions” were already being held between the County and the applicant (5/5/2018).
- Hearing Examiner issues Order that denies Community member’s request to intervene, citing that community members have recourse available, which is to appeal any reversal of County’s decision to deny application. The Order also states: “The appeal is continued for 90 days from the date of this Order – to August 14, 2018. Prior to or on that date, the County shall advise the Hearing Examiner of the status of settlement discussions. An appropriate further Order will be entered by the Examiner on receipt of the County’s report.” (Dufford Order 5/17/2018).
July – August 2018
- Bray and Day contact the County asking procedural questions regarding what the timeline and process will be if and when a settlement is reached. Director Hart responds with a prepared statement: “The attorneys are handling settlement negotiations directly, so I am not at liberty to discuss it. Per the Hearing Examiner order, the County will provide an update on or before August 14th regarding the status of the settlement.”
- The deadline for the County to report on the settlement discussions is extended by the Hearing Examiner from 8/14/2018 to 9/17/2018 (Kivi email to Interested Parties — 8/10/2018)
- During this settlement period, CNW conducts major work on its two-mile long proposed private gravel haul road including major earthmoving work, with dozens of dump trucks hauling gravel and other material to the site. Community members raise concerns with the County about this work being done apparently without an approved permit (Bray email to Cooper 7/30/2018). CNW’s explanation about road work is that the work is all “routine maintenance” of forest roads allowed under their Forest Practice Application (Lynn email to Nicoll 7/30/2018). Numerous comments are sent to the County and to the WA Dept. of Natural Resources (DNR) stating that the haul road work is clearly to upgrade the road to haul gravel in preparation for the conversion of the site to a mine and as such it should be under jurisdiction of the County. Comments state that CNW is exploiting a loophole in the regulations to upgrade its haul road without regulatory oversight. They urge the County to exercise its authority over “land conversions” to properly oversee the work (Wiggins to Klingbiel & Cooper 9/13/2018; Bray/Day to Hart 10/2/2018). The County does not respond.
September – December 2018
- Bray and Day inquire repeatedly to the County regarding the status of CNW’s appeal and settlement negotiations, and regarding the Hearing Examiner’s September (extended) deadline for a status report on the settlement discussions (no status report of the settlement discussion was ever made public). Eventually Planning Director Hart forwards an email to Bray, from the County attorney to the Hearing Examiner. It states that the application materials requested from CNW have been received but the County had not had a chance to review them yet, and staff will update the Hearing Examiner when the review is complete (Nicoll to Kivi — 9/17/2018).
- County Staff provide to Bray and Day these additional “application materials” that were submitted by CNW and they are posted on the public website.
January – February 2019
- For nine months from the date of the original appeal — April 2018 through Jan 2019 — no information is provided to the public by the County regarding the appeal or the status if the settlement discussions.
- County Attorney forwards to Bray a letter sent to CNW’s attorney stating that “Despite our best efforts to settle this matter, it appears we must proceed to hearing on the appeal of the denial of the incomplete application.” The letter goes on to detail the numerous “outstanding items supporting the denial of the application” (Nicoll to Lynn 2/22/2019).
March – April 2019
- CNW’s attorney sends letter to Hearing Examiner objecting to how County has conducted settlement process, and requesting a Prehearing conference or a written list from the County of all deficiencies in the application (Lynn to Dufford 3/22/2019).
- Hearing Examiner issues an Order requiring the County to provide the Applicant a written list of deficiencies in application, and giving Applicant 30 days from receipt of said letter to respond, and recommending a settlement conference during that 30 day period. A tentative date for a prehearing conference is set for May 29, 2019 (Dufford to ‘Parties’ 3/29/2019)
- Bray and Day send letter to Hearing Examiner, and to PDS Director, Hal Hart, and cc’d to County Attorney, reminding them of the significant procedural errors that have infected the application process from the beginning, including serious errors in the original notice to landowners, as well as PDS giving the applicant several extensions without following procedures spelled out in County Code. The letter also reminded County of the promise on the County website narrative that they will “issue a revised SEPA threshold determination” upon receiving updated application materials. The letter also included a copy of the “permitting timeline to-date for the record (Bray/Day to Dufford and Hart 4/3/2019).
May – June 2019
- Prehearing Conference on the appeal of the denial of the application is scheduled for May 29, 2019 by Hearing Examiner. In preparation for 5/29/2019 PreHearing Conference, County attorney submits letter to Hearing Examiner summarizing events leading up to this point, together with the contacts made between County and CNW (Nicoll to Dufford 5-15-2019).
- CNW attorney sends letter to Hearing Examiner complaining that his clients have not had access to County staff, etc. (Lynn to Dufford 5/17/2019). Hearing Examiner then cancels May 29 PreHearing Conference, and reschedules it for June 26, 2019, and recommends mediation if the parties can’t settle (memo from Dufford 5/22/2019).
- CNW submits package of updated application materials to the County on June 21, 2019, just three business days before the PreHearing Conference is scheduled. Prehearing Conference is again postponed and rescheduled for Aug.7, 2019.
July – August 2019
- Bray and Day submit letter to Hearing Examiner and PDS Director supporting the County’s denial of the application, and stating their opinion regarding CNW’s lack of good faith effort to address community’s concerns, and the over-all disorder and inconsistencies of the application materials, and calling out the lack of a traffic study despite CNW claims of doing one, etc. (Bray-Day to Dufford and Hart 7-24-2019)
- Prehearing Conference on the appeal of the denial of CNW’s application held on Aug 7, 2019. On same day County Attorney submits letter to Hearing Examiner stating that CNW’s latest submittal does not address all of the requested items. She states that they have explored mediation, but do not feel it can be resolved. Her letter summarizes efforts made to date and outstanding deficiencies in application materials (Nicoll to Dufford 8/7/2019).
- Twelve community members attend the PreHearing Conference as observers. The parties to appeal argue extensively in front of Hearing Examiner, who states again that his preference is to hold a hearing on the “merits” of the application, not on the “completeness” of the application. He orders the County staff and CNW staff to try again to have face to face meeting to try to resolve issues (without attorneys or Hearing Examiner present), and they schedule this meeting for Aug 14, 2019. However, the Hearing Examiner also sets the schedule for the hearing on the appeal, in case the parties cannot resolve the issues. He also states that he is inclined to revisit his earlier decision and allow intervention by citizens, should the Hearing on the appeal move forward.
- Hearing on the appeal of the denial is scheduled for October 23, 2019, with the deadline for prehearing motions for Oct 9, 2019. (Hearing Examiner Order PL18-0200 / 8-7-2019).
- Bray inquires by email to County Attorney as to status of discussions between County and CNW, and whether the hearing on the appeal is likely to go forward, she replies: “There has been no resolution to date, so the October hearing will remain scheduled at this time.” (email reply Nicoll to Bray 8-26-2019).
September – October 2019
- Eleven community members (“Neighbors”) file a “Renewed Motion to Intervene” in the appeal in support of the County’s Denial of the Application on Oct 1, 2019.
- Both CNW and the County file responses objecting to the Neighbors’ motion to intervene (CNW submits their response on Oct. 3, 2019, and the County on Oct. 4, 2019). The basic argument is that the County adequately represents the community’s interests. However, the County’s response includes narrative that says that the County will issue a new staff report and revised SEPA determination upon determining that the application materials are complete.
- Skagit County Hearing Examiner issues an “Order Denying Intervention” on October 7, 2019. He states that the Neighbors’ interest is primarily in the “merits” of the application; and, as such, when/if the project is brought forward, “for consideration on reissued notice and a new staff report, giving Neighbors ample opportunity to make a case on the merits prior to a final determination on the Special Use Permit application”.
- Skagit County submits a “Motion for Summary Judgment and To Dismiss” on Oct. 9, 2019. The motion asks the Hearing Examiner to dismiss CNW’s Appeal because “it is without merit”, arguing that the application remains incomplete despite the County’s good faith efforts to resolve the issues with the applicant, etc. On Oct 16, 2019 CNW files a response that attacks the County’s argument, claiming again that the County is at fault for sending mixed messages, and for not making clear what additional application materials were required, etc.
- Skagit County Hearing Examiner issues an “Order Denying County’s Motion for Summary Judgment, Granting Judgment to Appellants, and Ordering Further Permit Processing” on October 17, 2019. The Hearing Examiner sided with CNW on this matter. He ordered the County to process the application, with no mention of procedural concerns such as faulty SEPA notice, leaving the interpretation up to the County as to how to proceed. The Hearing on the Appeal of the Denial of the Application (scheduled for Oct. 23, 2019) is cancelled.
- Inquiries were made periodically to County staff through November, as to how they intend to proceed. No information was forthcoming. And there were no new developments that the public was aware of in December 2019.
January 2020 – May 2020
- No information was provided by the County to community members regarding the status of the application process from January through April 2020.
- In March 2020, CSVN member John Day submitted a public records request and received documents indicating that the County had engaged a third party contractor, HDR, to conduct the review of the permit. Record of the discussions regarding this matter went back to December 2019. With a contract with HDR having been signed by the County Commissioners on March 16, 2020.
- Bray and Day sent a letter to Director Hart on March 25, 2020 stating their concern that the contractor had been engaged without informing the community, and detailing specific questions and concerns. No response was forthcoming.
- Bray sent an email to Director Hart on April 23, 2020 attaching the March 25 letter, and again asking for some follow up.
- New Assistant Planning Director, Michael Cerbone, emails Bray with offer to set up conference call to answer questions.
- Additional public records installation provides draft traffic review from HDR that appears to accept CNW’s flawed traffic analysis and states that no Traffic Impact Analysis is required.
- Conference Call held on May 12, 2020. Cerbone will be the contact for community. He stated his commitment to transparency and good public process. HDR is only being use as principle “traffic engineer” to review applicant’s traffic “studies”. Cerbone and John Cooper will be deciding soon how to proceed with the permit, he says hopefully by the end of the month. Unclear whether the County will live up to its commitment to re-issue SEPA, etc, etc.
- To be continued (updated as of 5/15/2020).
Public records referenced herein, application documents, and public comment letters can be found @: