Craftsman Corner’s conditional use permit application was denied in March by hearing examiner Phil Olbrechts, who wrote, “the primary and perhaps sole reason for denial is noncompliance with the airport overlay district requirements.”

Steve Pearson, the owner of Orcas Rental and Saw, applied for the conditional use permit to authorize a third building for his commercial business composed of equipment rental and “retail with substantial storage space.”

Pearson’s first building was permitted in April 2005; the second building was permitted in January 2010 and is still being completed. Pearson applied to construct a 10,000 square foot third building ostensibly in order to justify his retail use of the property by creating “substantial storage;” but due to its size the  building cannot be permitted without a conditional use permit.

Olbrechts said that under airport overlay requirements, all buildings should be located as far from the extended runway centerline of the Orcas Airport as possible. While the existing buildings are already permitted, he said the third building must comply with overlay requirements.

Much controversy has centered on the CUP application this winter and spring, with allegations of past code violations from other Orcas residents and business owners.

Olbrechts brushed all that aside in his report, stating, “Failure to acquire provisional/site plan approval in conjunction with the building permits for the First and Second Buildings is irrelevant, since those building permits have been approved. Along the same lines, the extensive evidence presented regarding incomplete applications, absence of inspections, after-the-fact permit approvals and the like are also not relevant to this application.”

Under Washington state law, challenges to land use decisions must be made within 21 days of permit issuance. Olbrechts affirmed that prior permitting decisions – even illegal ones – cannot be revisited after that period is past, and not even under the guise of appealing another land use decision.

The same principle applies to the SEPA Determination of Nonsignificance issued to the third building in December 2011.

Building official Rene Beliveau told the Sounder that he needs to sit down with the county attorney in order to ensure correct interpretation of Olbrechts’ report.

“We haven’t made final determinations as to how we are going to proceed,” he said. At this point he is unsure whether the statement ruled retail use permissible or not. “The propane tank is legal, the permitted buildings can stay, he has to add screening; as to what type of business he can have here, that’s kind of in limbo until we can get a better read on what the examiner said,” Beliveau said.

Challengers to the CUP application argued that the current retail use of the buildings violates code.

In his report, Olbrechts seems to indicate that the current uses of the buildings were granted tacit approval when the buildings were permitted without requiring separate use approval – as long as those uses “comply with applicable use requirements.”

Olbrechts also clearly laid out a list of requirements that should be met in order to bring the proposed third building under compliance with county code. He addressed parking, chemical disposal, the airport overlay, screening, drainage, wetland buffers, traffic studies and other issues.

The full hearing examiner’s report is available online here.