Appeal denied in comp plan clash

NEWPORT — A Pend Oreille County hearing examiner is turning down an appeal of a comprehensive land use plan amendment that opponents of a proposed silicon smelter argue is meant accommodate the controversial facility.

Responsible Growth *NE Washington appealed the county-initiated comp plan amendment, arguing a determination of non-significance and accompanying checklist under the Washington State Environmental Policy Act failed to disclose or consider impacts of a replacing public lands designations with a public/institutional land use. RG*NEW further argued the map amendment failed to disclose or consider development of a proposed smelter and that the county failed to consider the cumulative impacts of the comp plan change.

Hearing examiner David Hubert heard oral arguments on the appeal on July and released a written decision on Wednesday, records show.

In the ruling, Hubert noted that of the approximately 230 written comments on the map amendment, only three addressed the SEPA threshold requirements with any specificity.

Appellants argued that they were effectively muzzled at a January public hearing when they were admonished by the chair of the planning commission not to bring up the proposed smelter in their testimony. A transcript from the proceeding indicate the chair and members of the public both grew argumentative.

Hubert, however, found that the chairman was merely attempting to maintain the focus of the hearing, but extended the comment period, which allowed scores of written comments regarding the smelter to be entered into the record.

“Although the chair’s statements and the argumentative character of the testimony at the planning commission meeting was at least a frustration for the persons at the meeting, the attempted control of the subject of the meeting and the later extended comment period taken together do not amount to a violation of SEPA,” Hubert said in the 39-page decision.

Hubert also found that the county did in fact engage in a full environmental review under SEPA and was aware of the new land uses created under the code change.

“The proposed change to the comprehensive plan and the zoning regulations is a non-project action. Pend Oreille County states repeatedly that it intends to further investigate environmental impacts of specific proposals, if and when they are submitted,” Hubert said in the decision.

RG*NEW expressed disappointment with the decision, the group said it would continue to challenge the smelter proposal, including appealing to the Growth Management Hearings Board if county commissioners implement the plan amendment.

“While we are disappointed with the county’s decision, we remain committed to taking whatever action is necessary to ensure that the county follows the law and that the smelter is not built in our community,” said Phyllis Kardos, co-chair of RG*NEW.

Rick Eichstaedt of the Gonzaga Environmental Law & Land Use Clinic said the appellants presented expert witnesses, extensive documentary evidence and case law which pointed to the county’s responsibilities in analyzing the impacts.

“Unfortunately, the hearing examiner’s decision appears largely as an effort to rubber stamp the county decision without any meaningful examination of the law or facts,” Eichstaedt said.

Citizen Against the Newport Silicon Smelter also released a statement said the group was not surprised by the hearing examiner’s ruling.

“Our attorney, Norm Semanko, and the Gonzaga Legal Team, will be deciding on the direction to go from here. Norm has made it very clear that this is in no way done and there are plenty of solid grounds for appeal,” CANSS said in the statement.

Keith Kinnaird can be reached by email at kkinnaird@bonnercountydailybee.com and follow him on Twitter @KeithDailyBee.