County: 'There were some oversights' on Orcas Rental and Saw permitting

UPDATE: A copy of an April 2005 official letter written by then-permit coordinator Jane Redfern to Steve and Patti Pearson has recently come to the Sounder's attention. In the letter Redfern gave specific instructions regarding the airport overlay, landscape buffers and parking requirements.

Original Article

The county has taken enforcement action against an Eastsound business it says added uses in violation of the zoning code, and alleges that construction on the site disregards required wetland setbacks, screening and parking requirements.

Now the owner of Orcas Rental and Saw has applied for permits to allow the new uses, while some islanders fault the county for lax oversight.

“Unfortunately we do make mistakes; usually they're not to this extent,” said chief building official Rene Beliveau. “We're still trying to figure what we can and cannot do [to remedy the situation]... Ultimately it is the responsibility of the property owner to know what the codes are, even if we don't tell them; unfortunately our codes are not that easy to understand.”

Orcas Rental and Saw building in Eastsound covers over 24,000 square feet and is set up to offer equipment rental as well as retail and storage space. County officials say that the company’s owner/builder Steve Pearson was given permission to construct the buildings through a series of oversights during the permitting process, but he also added retail without giving notice of his intention to do so on his expansion permit application. Pearson declined to comment on the situation, and it is unclear to what extent he was aware of the violations during or prior to construction. He has applied for permits to correct some alleged violations, county officials say.

County planner Lee McEnery said the oversights involved a variety of permitting department personnel. The original 2005 building permit was reviewed by Jane Redfern and approved for permit issuance by Francine Shaw, both of whom are no longer with the county.

“In 2004 or 2005 when [Pearson] applied for the building permit, we issued a building permit. We don’t seem to have applied wetland buffers. We don’t seem to have required a provisional use permit,” although both appeared to be required by code. Light industrial zoning requires a provisional use permit for use in excess of 4,000 square feet, or a conditional use permit for use in excess of 10,000 square feet.

Under the Conservancy Overlay (San Juan County Code 16.55.250), buildings and impervious surfaces must be set 50 feet from the category II wetland delineated nearby, but there is a permitted building only 15 feet away.

In 2009 Pearson applied for a permit for an addition to the existing commercial equipment rental building.

“We assumed the use would remain the same,” said McEnery, but Pearson added another use, retail. Again, the planning department was unaware of the adjacent wetland. Pearson was not asked to install the five-foot high visual screen required by county code, and traffic flow and parking do not appear to have been addressed, McEnery said.

“We should have required a conditional use permit then because it exceeded 10,000 square feet,” said McEnery, but the department did not, and the permit was issued. That permit was reviewed by county employee Julie Thompson.

In August 2010, Code Enforcement Officer Allen Shayo of San Juan County Community Development and Planning issued a Notice of Correction to Craftsmen Corner LLC.

“We received three separate complaints from people in the community,” said Shayo. “These people have requested confidentiality as they are entitled to do under state statutes.” The notice stated that the company was out of compliance with Titles 16 and 18 of the county code and was required to apply for a conditional use permit.

The notice cited numerous violations of county regulations regarding the Eastsound Service and Light Industrial District (page 48), including: Exceeding 4,000 square feet of use without a provisional use permit; using the site for home and garden retail; and failing to comply with screening requirements and traffic flow requirements.

Chapter 16.55 of the Eastsound Subarea Plan allows the following uses in the service and light industrial district: “retail with substantial storage space or incidental to another allowable use.” The notice defined substantial storage as follows: “the ratio of … storage to retail area is greater than two and the gross building area exceeds 10,000 square feet.”

According to McEnery, Pearson complied with the notice by applying for a conditional use permit in November. He also applied for a building permit to add on to the building again, presumably in order to satisfy the requirement for “substantial storage.”

The conditional use permit application is scheduled to come before a hearings examiner

for evaluation on Feb. 3, but an extension could be requested. Beliveau expects Pearson to challenge some of the county's allegations. The latest building permit will not be approved until the conditional use permit issue is settled. The decision by the hearings examiner could also be appealed in district court.

Beliveau said that although “there appear to be a lot of violations,” the county could be barred from requiring Pearson to bring his buildings into compliance under the Land Use Petition Act (LUPA), which requires oversights by permitting officials to be redressed within 21 days of permission being issued.

“Under LUPA laws, once we make a final decision, we can't change that decision unless we find that error within 21 days of making that decision,” said Beliveau. “Some of this is going to be unpalatable to a lot of people.”

If LUPA laws prohibit requiring retroactive conformity to county code, the buildings could be designated as “existing non-conforming use,” - “but you can't expand a non-conforming use,” said Beliveau.

Attendees at a Jan. 6 Eastsound Planning Review Committee meeting expressed concern about the Orcas Rental and Saw buildings. Errol Speed gave a 40-minute presentation detailing each violation he perceived, complete with references to the section of county code pertaining to each matter. Issues he addressed include parking and traffic flow, proximity to wetlands and stormwater drainage, a large propane tank and the lack of a required five-foot high visual screen around the buildings.

“I love Eastsound... I just want the appropriate development in the appropriate places, said Speed, who owns the Smith and Speed Mercantile with his wife Kathleen. “Someone wasn't watching, or didn't pay attention, and now we have a huge problem located in an area where it shouldn't have been. I don't want them to set a precedent that will allow more of this to happen. The history of the CD&P is that they DON'T force people to undo their actions; the CD&P tries to adapt the code to what exists.”

Among Speed's objections: he says Orcas Rental and Saw has a 500-gallon retail bulk storage propane tank located above ground on the lot. The property is located in Zone 2 of the Airport Overlay District, and UDC 18.40.032 requires that except for residential tanks, bulk storage of flammable or hazardous materials is prohibited, and that propane tanks must be located underground.

Beliveau said county planners neglected to evaluate the effect of the airport overlay district on the propane tank in Pearson's application.

The Eastsound Subarea Map does not show the Eastsound Swale wetlands that affect setbacks; there is a separate map with that information; Beliveau said the information used by county planners is laid out in a way that sometimes makes it difficult to see all of the relevant pieces of code that apply in each situation.

“It's not a very user-friendly code to go through and figure out what does and doesn't apply,” he said. “It's convoluted. I know we missed it; I can't say Steve Pearson knew. It lends itself to missing things. We're talking to the EPRC about codifying it differently so we can actually find the rules and regulations.”

The Sounder has also received letters from other islanders concerned about the project.

The next EPRC meeting is scheduled for Jan. 20, at noon at the Eastsound Fire Hall.

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