November 2, 2016 Sandy Robson
Dear Whatcom County Planning Commission:
Please consider this an official comment on the 2016 docketed Cherry Point Amendments, identified presently by County Planning and Development Services (PDS) as: “Proposal – Council Resolution (initiated by Council under Resolution 2016- 027),” to the 2016 County Comprehensive Plan Update.
My comment will address the October 26, 2016, letter from Gateway Pacific Terminal (GPT) applicant Pacific International Terminals (PIT) VP Skip Sahlin, sent to the Whatcom County Planning Commission regarding the 2016 docketed Cherry Point Amendments to the County Comprehensive Plan Chapter 2 Land Use Cherry Point UGA, currently under review by the Planning Commission.
On page 1 of PIT’s letter, Skip Sahlin referenced the 1999 Settlement Agreement which stemmed from an appeal of Whatcom County’s 1997 issuance of the “CONDITIONALLY APPROVED” Shoreline Substantial Development Permit in actions that were consolidated before the Washington Shoreline Hearings Board (SHB), SHB Nos. 97-22 and 97-23, which were ultimately resolved with the 1999 Settlement Agreement.
The Appellants in that appeal were the Washington Environmental Council; Washington State Department of Fish and Wildlife; Washington State Department of Ecology and others; and the Respondents were Whatcom County and PIT.
PIT’s October 26th letter states that a condition of the Settlement Agreement was Section 4 “Whatcom County Plan Amendments.”
Section 4 addressed amendments that were to be proposed to the Whatcom County Shoreline Master Program (SMP), and to the Whatcom County Comprehensive (Comp.) Plan, as conditions of the Settlement Agreement.
Mr. Sahlin, in his letter, asserts that the 1999 Settlement Agreement provides a legal basis why you commissioners, and our County, should not approve the language in Policy 2CC-10 that is contained in Council member Weimer’s proposed Cherry Point Amendments (identified by PDS as the “Proposal”) to the 2016 County Comp. Plan update.
The Policy 2CC-10 proposed language in the Council-generated “Proposal” states: “It is the policy of Whatcom County to limit the number of industrial piers at Cherry Point to the existing three approved leases identified in the Lands Commissioners’ Order No. 201037 designating the Cherry Point Aquatic Reserve (BP, Intalco, and Phillips 66) to: …”
PIT’s letter quotes Whatcom County Civil Deputy Prosecuting Attorney Royce Buckingham’s statement about the above quoted proposed Policy 2CC-10 from his
October 14, 2016, letter/Planning Commission Meeting materials sent to PDS staff and the Planning Commission. Mr. Buckingham wrote:
“This policy purports to limit the number of piers in the area to the three existing piers. Regulations should be developed to implement this policy. It should be noted that this policy would be subject to any vested projects or settlement agreements already in place.”
In looking closely at the language of
Section 4 “Whatcom County Plan Amendments,” contained in the 1999 Settlement Agreement, you will see that 4.a. and 4.b. did not, and do not, compel or require Whatcom County to amend the County Comp. Plan, as that is a legislative action, of which, the Whatcom County Administration cannot exert control over.
Section 4.a. in the Settlement Agreement states: “WEC, the State Agencies and the Whatcom County Administration agree to actively support an amendment to the Whatcom County Shoreline Master Program (SMP) which would prohibit additional on-water port development occurring within the Cherry Point Management Area, with the exception of the PIT project and existing piers. The amendment to the SMP that will be proposed to accomplish these objectives shall be substantially in the form contained in Appendix I. The proposed amendment shall be processed in accordance with WAC chapter 173-26 and other applicable law. The WEC, State Agencies and Whatcom County agree to support the proposed SMP amendment and to work cooperatively towards its adoption by the governmental entities by actions that will include, but not limited to, letters and testimony in support of the amendment.”
Section 4.b. in the Settlement Agreement states: “WEC, the State Agencies and the Whatcom County Administration agree to actively support an amendment to the Whatcom County Comprehensive Plan (Comp. Plan) which would prevent further on- water port development in the Cherry Point Management, with the exception of the PIT project and existing piers. The amendment to the Comp. Plan that will be proposed to accomplish these objectives shall be substantially in the form contained in Appendix J. The proposed Comp. Plan amendment shall be processed in accordance with the applicable Whatcom County Code provision and other applicable law. WEC and the State Agencies agree to support the proposed Comp. Plan amendment and to work cooperatively towards its adoption by Whatcom County , by actions that will include, but not limited to, letters and testimony in support of the amendment.”
The 1999 Settlement Agreement language merely stated that WEC, State Agencies and Whatcom County Administration agreed to actively support an amendment to the Whatcom County Comp. Plan, and to actively support an amendment to the Whatcom County SMP.
It was then up to the County Council whether or not to approve/adopt those amendments proposed to the Whatcom County SMP and Comp. Plans.
And, those proposed amendments to Whatcom County’s Comp. Plan and SMP were supported by the WEC, State Agencies and Whatcom County Administration as agreed to per the Settlement Agreement, and as it turned out, those amendments were adopted by a vote of the County Council in 1999. Even if it had turned out that the proposed Whatcom County Plan amendments had not been adopted by a vote of
the Council, our County Administration had fully satisfied the terms of the Settlement Agreement by actively supporting those amendments to the Comp. Plan and SMP, as that was what was agreed to by the Appellants and Respondents (parties to the Settlement Agreement).
There was nothing stated in Section 4 of the Settlement Agreement that compelled or required Whatcom County to amend its SMP and Comp.Plan. So, why, seventeen years after our County already fully satisfied the Settlement Agreement terms regarding the then-proposed amendments to the County’s Comp. Plan and SMP, does our County Prosecutor’s Office suggest to, or advise, our County’s Planning Commission that our County agencies should retain the language in our Comp. Plan?
Furthermore, it seems that since the 1999-proposed amendments to the SMP and Comp. Plans could have ultimately, and legally, been rejected back at that time by the County Council during its vote, then it should be legal and reasonable, now, seventeen years later, for the Planning Commission to approve County Council member Carl Weimer’s proposed Cherry Point amendments identified by PDS as the “Proposal.”
Also included in PIT’s October 26, 2016, letter to Whatcom County PDS and the County Planning Commission, was an attachment showing an October 13, 2016, letter to Whatcom County Deputy Prosecuting Attorney Karen Frakes, from Gordon Thomas Honeywell (GTH) Attorney Bill Lynn, writing on behalf of his client, GPT applicant PIT/PIH.
On page 2 of that letter, Mr. Lynn requests that Whatcom County Council and its legal staff carefully review the 1999 Settlement Agreement concerning the GPT project, especially, he points out, Section 4 “Whatcom County Plan Amendments.”
Mr. Lynn cites Policy 2CC-10 in the current County Comp. plan, and claims that “the county further agreed to amend its Comprehensive Plan and Shoreline Master Program in such a way as to prohibit additional piers but to permit the GPT project.” [underlined emphasis Mr. Lynn]
Apparently, Mr. Lynn feels that when Whatcom County Administration, in the 1999 Settlement Agreement, agreed to “actively support” the proposed SMP and County Comp. Plan amendments, a condition which was satisfactorily fulfilled at that time, that his client PIT, is entitled to have those amendments remain in the SMP and County Comp. Plans in perpetuity.
In his October 13th letter, Mr. Lynn further asserts that the Council-generated proposal (identified by PDS as the “Proposal”) directly contradicts what he claims to have been a “promise” by Whatcom County “to prohibit additional piers but to permit the GPT project.” However, the “promise” or agreement that Mr. Lynn refers to was that the County Administration “actively support” the proposed SMP and County Comp. Plan amendments, and that “promise” or agreement on the issue of those then-proposed amendments has already been fulfilled.
Mr. Lynn goes on to cite Section 5.h. in the 1999 Settlement Agreement which states:
“The parties agree that in carrying out the terms of the Agreement, they are operating in a relationship of trust and confidence and, except as provided herein, have neither done, nor will do, any acts that will diminish the value of the
Settlement Agreement to the other parties in any way or the ability of the parties to obtain the benefits of this Agreement.”
He alleges in his letter that the actions now being contemplated in the Council- generated “Proposal” would be contrary to what he calls, “this strong good faith obligation,” and would, “directly breach the agreement made by the County.”
However, the County Administration, in carrying out the terms of the 1999 Settlement Agreement, did indeed take good faith action at that time, to actively support the then-proposed Whatcom County Plan amendments. And, even though it was not required in the Settlement Agreement, the County Council ultimately voted to approve/adopt those amendments.
It is important to note that there was no indication whatsoever in the Settlement Agreement of any condition that imposed any specified duration of time that those amendments, if those were to be adopted by the County Council, would remain in the Whatcom County SMP and Comp. Plans. Yet, PIT/PIH’s attorney is acting as if there is such an indication in the Settlement.
Also, on the subject of strong good faith obligations, I believe that Mr. Lynn, and his client PIH/PIT, are forgetting that now, after U.S. Army Corps of Engineers, on May 9, 2016, determined that construction of the GPT facility would violate the Lummi’s U&A treaty fishing rights, Whatcom County has a strong good faith obligation to uphold those treaty rights. After all, Article VI of the United States Constitution establishes that Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.”
The Council-generated “Proposal” which Council member Carl Weimer originally proposed contains language that demonstrates a strong good faith obligation effort by our County to uphold those treaty rights.
I urge you commissioners, and the County Council members to whom I copied this email, to look closely at the language in the 1999 Settlement Agreement. That way, you all can see for yourselves that PIT, and apparently our County Attorney Royce Buckingham, are asking the Planning Commission and the County Council to continue to hold Whatcom County to conditions relating to amendments proposed to our County SMP and Comp. Plans seventeen years ago; conditions that were already fully satisfied by our County back at that time.
While I am not an attorney, from reading the Settlement Agreement very carefully, I do not see any legal basis that would preclude the Planning Commission or the County Council from approving the Cherry Point Comp. Plan amendments (identified by PDS as the “Proposal”) currently under review by you commissioners. To confirm the validity of my thinking that I have outlined here, I think it would be prudent for the commission to seek an outside legal opinion other than only opinions from attorneys working for Whatcom County government. I say that especially in light of the fact that Whatcom County, as a Respondent (along with PIT) in the appeal filed with the Shoreline Hearings Board, is one of the parties in the 1999 Settlement Agreement, so it feels like that could possibly create some kind of conflict of interest.
Thank you for considering my comment.
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and was copied to these addresses: