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BELLS FLATS TR A BK 3 ALL - Code Enforcement (4)T00 [21 STATE OF ALASKA DEPARTMENT OF ENVIRONMENTAL CONSERVATION Kenai Area Office, 4$$$5_Kalifornsky Beach Road, Suite #11 Soldotna, AK 99¢9 TELEPHONE; (907)262 -5210 FAX;_ (262) -2294 Internet address: http: / /www.state.ak.us /dec FAX TRANSMITTAL SHEET TO: DUANE DVORAK FAX #: (907) 486 -9396 PHONE #: (907) RE: SOIL PROCESSING INC., SOIL TREATMENT FACILITY FROM: PAUL HORWATH DATE: 10 -8 -02 NO. OF PAGES (Including cover sheet): 12 Message: 3HaV IOIddO IVUa?I 66ZZZ9ZL06T XV3 ES : LO HfLL 10/90/0T AUG -29 -2002 THU 04:44 PM FAX ND. VLLE F aLasu DEPT. OF. ENVIRONMENTAL CONSERVATION DIVISION OF SPILL PREVENTION AND RESPONSE William S. Cummings Ashburn and Mason 1130 West Sixth Avenue, Suite 100 Anchorage, AK 99501 -5914 ZOO E] August 29, 2002 P. 02 TONY KNOWLES, GOVERNOR 410 Willoughby Ave., Ste 303 Zasnea %, AK 99801 -1795 PHONE: (907) 465 -5275 FAX: (907) 465.5244 http:/ Iwww.state.a1;.us/dec/horna.hum Re; , Soil Processing Inc., Soil Treatment Facility Tract A, Block 3, Bells Flats Alaska Subdivision, Kodiak Island Borough, Alaska Soil Treatment Facility Operations Plan, Conditional Approval Request for Informal Rcvicw of ADEC's Conditional Approval Dear Mr. Cummings: The Alaska Department of Environmental Conservation (ADEC) received your request, pursuant to 18 AAC 15.185, for an informal review of a July 19, 2002 decision conditionally approving the Soil Processing, Inc.'s Operations Plan for the above referenced soil treatment facility. The request for informal review of the Department's determination, to conditionally approve the Soil Treatment Facility Operations Plan set forth in your letter of August 5, 2002, merits informal review and is granted. Your interest and concern for the possible impacts that may be caused by the proposed operation are appreciated. I have reviewed the July 19th decision, in light of the information provided and the concerns and issues expressed in your letter of August 5th and have determined that the decision meets ADEC regulatory requirements to protect public health and the environment A copy of the informal review and determination is enclosed. In accordance with 18 AAC 15,185, a request for informal review stays proceedings on a request for stn adjudicatory hearing. Should you decide to rcquiest an adjudicatory heating it must be submitted to the Commissioner, Department of Environmental Conservation, 410 Willoughby Avenue, Suite 105, Juneau, Alaska 99801 -1795, within 30 days after the date of issuance of this letter. Your request to use the informal agency review option as a means to resolve differences is also appreciated. Xt was my intent to carefully review our decision and provide you with the rationale Used by the Department for each of tho issues raised. oaav Klan IVNEN t6ZZZ9ZLDBT Xvd ZO /BO /oT AUG-29-2002 THU 04;44 PM William S. Cummings FAX NO, 2 Augast 29.2002 Please contact me at 907465-5255 if you have any questions or need additional information. Sinccrcy Dictick Director ENCLOSURE —Informal Agency Review cc; Alex Swiderski, ADOL Steve Bainbridge, ADEC P. 03 M4b, TIP/. mongrel e00 DRCIV HO Idd0 IVNall f76ZZZ9ZL061 XVd fig LO ailL Z0/80/0T AUG-29-2002 THU 04:44 PM FAX NO, P. 04 1•00e Enclosure INFORMAL AGENCY REVIEW In the maU.er of Soil Processing Inc., Soil Treatment Facility Tract A, Block 3, Bells Flats Alaska Subdivision, Kodiak bland Borough, Alaska Soil Treatment Facility Operations Plan, Conditional Approval Request for Informal RevieW pursuant to 18 AAC 15,185 of ADEC's July 19, 2002 Conditional Approval Requestor Williams S. Cummings on behalf of the Women's Boy Community Council by letter dated August 5, 2002. ISSUES and DISCUSSION An informal review was conducted of the contested decision. Tice issues presented in the August 5, 2002 appeal are discussed below in the general order presented in that letter. • The primary purpose of this Operations Plan is to ensure the adequate containment of contaminants during soil treatment operations, from the time that contaminated soils are delivered for processing until the time the soils have been tested and demonstrated to have met the required cleanup levels. The containment provided within SPI's Operations Plan consists of lined structures, or in the case of the soil storage cell, a lined structure covered wish a hard asphalt pad. The measures provided in this plan are not failsafe under all circu.mstances, but have been commonly employed for years for purposes of storage and treatment of contaminated soils in this State, and have been shown to provide adequate containment to protect public health and the environment. The Operations Plan was prepared and independently reviewed by two professional engineers. The Operations Plan and the controls, operation and other features, are consistent with other similar plans approved and successfully operated elsewhere in the state. With regard to the groundwater regimes in this area, the intention of this Operations Plan is to prevent any contamination of the groundwater onsite, in order to preclude the degradation of offsite groundwater or surface water supplies. The Operations Plan meets the regulatory Dam' H3Idd0 IVNN 9ZLO6T XVd 1,9:LO au Z0/90/0T (-Mt AUG-29 -2002 THU 04:45 P11 FAX NO. P. 05 soots Request for Informal Review 2 August, 2002 requirements with respect to the safeguards needed for protection of ground and surface waters for the proposed operation. Me quantity of groundwater available for use in the local area, and any negative impact that Brechan of SPI may cause by the use of Brechan's onsite well, is a matter that is regulated by the Department of Natural Resources, which issues and records water rights, and may have some authority on this issue, The Brechan well was constructed with the use of an . excavator, as was the borrow site pond. The water in the Brechan well is reported to be at the same elevation as the pond waters. It is expected, the well would be directly connected to tlae pond waters, hydraulically. Should the use of the well water have a large drawdown effect on the shallow aquifer it produces water from, it would be expected that the pond waters would be visibly drawn down. Also, since the well is relatively shallow, it should run dry. The shallow construction of the well will limit the depth of aquifer drawdown to the maximum depth of the well. According to SPI, Brechan has reported no shortage of water from their shallow well, nor any historical impacts to adjacent water supplies. • The soil cleanup levels required in the treated soils in this Operations Plan are designed to prevent the potential for negative affects to residential human health, or the environment. The sampling required to demonstrate that the treated soils have met the required cleanup levels, is in conformance with applicable regulation, and is sufficient to ensure the adequacy of the soil treatment process. • The department's Division of Mr and Water Quality has permitted SPI's soil treatment facility. The plant was required to pass air emissions quality testing and those standards take into account the various atmospheric conditions referenced in the appeal letter. The plant is also required to maintain continual carbon monoxide monitoring in order to ensure the effective oxidation of contaminants, prior to discharge of emissions to the atmosphere. • ADEC regulations for soil treatment facilities, require that the locations of m ©nitoring wells, surface water, water supply wells, facility boundaries,-and public or private buildings within 500 feet of the facility boundary, be shown on a facility diagram. The regulations are intended to provide information about the nature of the site conditions at the location of the proposed soil treatment facility. The regulations do not ban the existence of any of these items, within 500 feet of the facility boundary. They provide useful information on development in the immediate vicinity of the proposed operation and gives us the ability to determine if any separation distances required for drinking water supplies are necessary. The facility boundary in this case, is not considered to be the Brechan property boundary, but rather the perimeter of SPI's soil treatment facility operations. A review of the public comments, Operations Plan, consultation with staff, who have been on site and attended the local public meeting and site aerial photographs, has not revealed 35 water wells within 500 feet of SPI's proposed facility. 2 OHM' R3Idd0 IVN 3 66ZZZ9ZLO6T XVd SS:LO afu Z0/90/0T 9 0 0 E AUG -29 -2002 TTHU 04:45 PM FAX N0, Request for Informal Review 8 August, 2002 • The revised plan submitted on July 8 included relatively minor changes made by the applicant in response to public comments. The public review draft of the Operations Plan was substantially complete and wag noticed on May 15. The public comment period was subsequently extended to June 15th. In addition, a public meeting was held on May 31st_ Tha department considered the public comments regarding the treatment facility and issued an approval based on the revised plan. We do not re- public notice plans that have been revised in response to public comments and in this case it was further not necessary, since the revisions were not substantive. The majority of public contrnents were not applicable to the technical aspects of the facility and were referred to the Kodiak Island Borough for their consideration in the zoning process associated with and use issues. Three comzr eats were received by the department after the public meeting. ■ This area is zoned for industrial use and there are no requirements for complete fencing of the facility. According to our information, the firehouse water well is beyond the 500 -foot perimeter and is not subject to any separation distances as a result of it being used for potable purposes. Both the playground and commercial facility are also beyond the 500 -foot perimeter and would need to comply with any applicable zoning requirements. No individual identified as being associated with the onsite trailer has objected or provided comments regarding the proposed operation. The existence of the trailer within 500 feet of the proposed operation is not prohibited. We were informed that there is no potable Water well in use on the B.rechan property. Brechan's well is reported to be used for industrial purposes only and is located farther than the separation distances required for a public or private water supply well. P. 06 With regard to the fuel storage and use proposed at this facility, the department has no direct authority to prevent the proposed storage and use of fuel on this property. Mr. Duane Dvorak informed ADBC staff that the Borough's Community Development Department would require the concurrence of the local fire marshal on this matter before issuance of their permit for this activity on the Brechan property, We would defer to the expertise of the local fire marshal and the Kodiak Island Borough Community Development Department on matters relating to proper fuel storage or emergency evacuation routes and procedures available to the community. The difficulties posed by zoning, which allows industrial activities in proximity to residential areas, are recognized and have been brought to the attention of the Borough. In recognition of these difficulties and the issues raised during the public comment period, the Department imposed six conditions and limited the approval to one -year contingent upon monitoring, inspection or testing to ensure proper operation. The Department has also reserved the right to require modifications, or additions, to the Operations Plan as statutes, regulations, test methods or other circumstances warrant, These additional precautions have been taken in consideration of the issues raised during the public comment period, ORV HDIA.40 ivunx t6ZZZ9ZL06T xyd 92:LO aat ZO /80 /OT L0012 AUG-29-2002 THU 04:45 PM FAX NO. P. 07 Request for Informal Review 4 August, 2002 DETERMINATION Based on my review of the department's determination on this m.attor, and in consideration of the issues raised in your August 5, 2002 request for informal review, 1 find no reason to tnodify the Division's determination. My informal agency review and decision is to leave the July 19, 2002, conditional approval of Soil Processing, Inc.'s Operations Plan intact. CADOCUME-11LCOMR-1\LOCALS-11TernplEnclasure-Informal Agency Revicw.doc 4 DWI midao IVION t6ZZZ9ZLO6T XV.4 99: LO 3fk11 g0/80/0T 08/06/2002 11:32 FAX 9074515105 ' AUG -08 -2002 TUE 08:48 Ati Au4-05 -2062 02;58vm Fran - Ashburn and Nnron 900E1 M.4P11 L. A9h0URM - DANl R. OROI,:YI'► WILLIAM S. GUMMIN04 JOHN Ci Msc,.RION OONAL0 W. 1t,0L11N1.003 fl PONNA .1, MaePEAoY Ar vr11.LI01 BAUPE, KIMPTFN TINOLIJM JULIAN L. M41640N �► sopl.as‘ ADEC SPAR -CS /DOD FAX NO. +ITTMS ASHBU RN AND MASON LAWYERS A ►KOFROSIOMAL CONFOMT10N 1130 WasT 313.TM A TMLIE. SUIT 100 ANONOR,►GE. ALASKA A soo.eol4 August 5, 2002 Larry Dietrick, Director Department of Environmental Conservation Division of Spill Prevention and Response 410 Willoughby AveAue, Suite 105 Juneau, Alaska 99801 -5795 l} 004 P. 03 T-441 p.002/046 rrrr TLLCPNONE (007) elm -4331 TELCSOPIFFI (007) err -BESS wacoanehorlac cam VIA FACSDAI E 902.465.5262 Re: Soil Processing, Inc. Soil Treatment Facility 'Nutt A, Block 3,13 ells Flat Alaska Subdivision, Kodiak Island Borough Soil Treatment Facility Operations Plan, Conditional Approval Our Flle Ico, 9825.190 Dear Director Dictriak: I have been retained to represent the Women's Bay Community Council, an association of concerned citizens who live and ownproperty in Women's Bay, near the oityofKodiak, Alaska. The Women's Bay Community Council represents the Women'sBayebmmunity. The Soil Processing, hie. ('SW) sail treatment faoiliiyreferenced in the above caption is planned in this primarily residential community. Onbehalfaf'theWomen'e Bay Coxmnw tyCouncil,andpursuant to ISAAC I5.185,Ianzwzidug to request Ina informal review of the July 19.2002 deeisionbyJic Frechiono, Contaminated Stites Section Manager, approving for eonsttwctionSPI's Operatie3Plan for soil treatment fbcilityonTtaotA, Block 3, Bulls. Flat Alaska Subdivision, Kodiak Island Borough. A copy of this decision is attacked. My mailing address, telephone number, and facsimile number are above. Women's Bay Community Council's address is 538 Sergeant Creek Road, Kodiak, Alaska 99515 - Item otherwise be reached through me. - - Women's Bay Community Council's interest is this dr:Waion ca nts from thereat chalks members live and work within close pre xiaityto the soil remedied= site. They brutal= air thetwill receive 3ny OHM/ IOIddO IVNax t6ZZZ9ZLO6T XV.d LS:LO Hal Z0/90/0T 08/06/2002 11132 FAX. 9074515105 AUG- 06.2002 TUE 08 :49 AN Autl -05 1001 nabs Pram -Millburn and Mason 600E ADEC SPAR -05 /DOD FAX NO. +RTT6285 ASrrBUaN AND MASON Larry Dictrick, bisector Department of Environmental Conservation Division of' Spill Prevention and Respansa August 5, 2002 Page 2 005 • P. 04 T -Odi P.DOa /DGD p ■DDO amine discharge from the facility, drink water from the aquifer directly below this site, Nod travel t chose roads that the mucks carrying cootanainated soil to the site will travel. Specifically, we contend that the decision overlooked moat indications that the proposed operations are not sufficieuflypt otecrive of human health and safety, including the lack of sufficient information r,egardin gthe groundwaterat the site middle general hydrologyofttie area, and the fact that existing information does indicate the possibilitythatrawt- offor trace ce teminantswiningafterthe rennediction process would effbct the residential water supply. For example, at the publia meeting held on this proposal, Geologist Dr. Guy Carver brought to the attention ofA1 BC officials specif Ini irmationraintedtotaidergrotmdaquifleeirheproposedsite. Dr. Carver explained how the Bracken borrow site pond conveys into and broadcasts with groundwater that may reach and mix With adaacme area drinking water supplies atidpointed out two ormorespecific geologic formations that appear to contribute to the subsurface water distribution. Dr. Carver Anther clarified thattl cBreahansite exhibits this dispersal tendency= atuawningbasisiacogju nadonwith two routes thatpotentlaliy commingle with area drinldngwater supplies. These conditions am indiceredbytbe locationoftliesiteontheboundarybetwezntwoverydii %tentgeologicetzvbvntentsund by very different types ofsocks and sediments that contain two distinct groundwater syatemc. These complex groundwater conditions are also indicated by the observed difbrenceis in the hydrologic response ofthe pond in the Brechanpitand Lake Crbinto wet and dryperiods over the year. The pond intheBrechen pit and Lake ©rbia are two nearbyeurfacewater bodies that communicate with the local groundwater systems, Fluctuations in their Water levels are indicators ofthe groundwatee hydrologic; processes end conditions. Thme rwo water bodies are located on either side ofthe geologic boundarybetween the two distinct hydrologic systems. This boundary underlies the Meehan property in close proximity to the proposed soil remediation facility. Thewater level changes to these lakes from wet to $cyperiods are net uniform and bulicate two ocenplex interacting groundwater systems at the site, eninunpremtionreinforced by the nature ' of the local geology. Notwithstanding the foregoing discussion indicating the presence of complex groundwater conditions at the site, the specific nanny ofthe grvwidwaterhydrology, the local geologic conditions that control or influence the infiltration of surface water into the groundwater systems, the movaznaut of groundwater, and the relation between groundwater at the site end adjacent areas is unknown and undocumented. The potential impact oftho proposed soil remedietien Facility on low grow2dwst= pnsscntlyin use, or available for future use, as domestic supplies at inducer the site if not known and o av aoIi.o IVNox t6ZZZ9Z2,06T XVd L5 :L0 IfIL Z0/80/0T 05/06/2002 11:32 FAX 9074515105 AUG-08 -2002 TUE 08:49 An AuA -06 »1001 02:511pm FrodrA=hburn rand Meson OTOL ADBC SPAR -CS /DOD FAX NO. +ZTT!!39 AeiuVAN AND MASON Larry y Detrick, Director Department of Environmental Conservation Division of Spill Prevention and Response August 5, 2002 Page 3 2006 P. 05 T-441 P.pO41006 F-8U cannot beasseasedwithoutadditionalgrotundwraterhydrologyatulgeo logyiu>ihamtdiiwt. AMC isinerror infamies a permit t o i m p o rt m o r e , endproceaa o c c i t a t o i n a t e d materials mite site becatrseit does notbave a faattral basis to evaluate the potential impact of soil, =mediation activities on local groundwater. Anther, despite SPX's statement that there ie no •:u►-offfrmn the situ, iL ca n be observed at seveaal locations, including cm ming over Salmonberry Drive into Lake Or bb ,, the bonvw site pond, and other sfes leading off °ft eproperty. Contaminants may enter this water supply either prior to the remediation proemsorttftleaward, Eatbretheremedlationprocem,theasiethepossibilitforaapillduringttamportaiion or unloading or =overflow of the Contaminated Soil TemporaayStockpile ("CSTS'). The are aroccvnd rmincatl for a 24 -hour period is 7.9 inches. Over the area of the CSTS, this would result in a water accumulation oi'over 35,000 gallons ins 24- hourpa ied. 'Fhb could easily resultinrimoff The settling pond could also overflow under extreme rain conditions. After the remedial= process, it is possible that the remediated soil wall X11 contain some � rarninarts. Mound= testing process does not guarantee that all over contzxnixan 111beidentifed. Ifthese ocher concaminann arena[ released into thaw:exosphere bythetemediationprooers, they may remain in the soil. Bitter way, they may enter the community water supply. At least some of the rearediated soil 'Alibis placed in the Brecba n Entetpriscs borrow pit, which SPX acknowledges contains surface water at the same level as the surrounding water table. If contaminants enter the air, they are likely to stay in the Women's Bay valley. The SPI Operations does not discuss, but it is generally known, tbatthe casabas a prevailing NE wind. The prevailing winds will transport SPI emissions over and into the 9aatounding housing. Moreover, SPX omissions will combine with existing Breeban site emiasiors and activities Wean= an accumulative effect orathearcareddeanS. These cmissbnis will also befurdier influenealhya local areainvention phenomenon. This inversion phenomenon ion k# luenaedbychefact that die SellsFlaisvalleyisswroundcdc ithreesides bymoimtains. Athigh erelevationatbismountainoustarrainiseoveredwithsnowt cmajorityoftheyear, instigating the buildup of a heavier cold airmasstbatholdssmoke, dun, and other suasionovert'hevalley far long periodsoftime. This local artainversionphenomenon$ soIIenresday viewable from die City of Kodiak severalmi1esaway. The wet Kodiak r+narineenvin z aaentwill thenprecfpitate Ibis layette* into the:Bells Flats valleywith he next rain and onto residential gardens, =koala, and thewat+erted, manually spreading potential pollutants. Daaa HDI.330 IVNHH i'622Z9ZLOST XVd 99L0 317.1 20 /90 /0T 06/00 %2002 11:33 FAX 9074515105 AUG-06 -2002 TUE 013:50 All Aural -Z00Z WW1 Prea-Arhburn and Mason TTO E1 ADEC SPAR -CS /DOD FAX N0. 4;iiflZU11 ASIISUBN AND lilASot1 Larry Dietrich, Director Department ofBnvimtos,Enna Coaser+ation Division of Spill Prevention end Response August 5, 2002 Page 4 IJ007 T-441 11,NS oa P. OD Wo also question, tand ask funtherreview of, the adequacy ofdtewater Sitar ayatemproposed. It does not appear that stsflicie0infe metionwasprovidedtoadequate lyassessthissystem,especiallyin relationship to its need to respond to periodic heavy rainfalls. We also objectto the Oct that the approval was based onaaubs{anda11yreviaed Operations Plot that was apparently delivered tothedivisiononlyaweekbatbreitfinned its decision, and about which the division never receivedpubli4cottnment Iftherevised plan hadbtxn subject to public comment. the division could have lamed tlf it Poona several inacctaieies, inch :B g (1) the exist :Doe ofspptvximately 35 watawells. predoaainatclyreaidential,withln 500 &etofthe sitepropeny line; (2)the Sleeitepres ion that the area is sceuredbeeause it is gated, when the fencing sturoundiggthe property is in Sot in►COmpletc (3) the existence ofaresiidta m onthesamep ropeny (an occupiedtrailer); (4) the fact that the waterwell at Me firehouse isnotacounnercial well, but is used primsallyfartide el mtdpublicptaposesincluding drinking Water for Conunercial purposes, such as filling the f+retankartruck is obtained from a fixture installed fbr this purpose at dte pond Ascent to the firehouse; (5) tiro existence of a Kodlsic Island Borough playground for children immediately Ascent scent W the firehouse and adjoins the pond. This playground is apptoximate1y700 feet from the Srechan protpeRy; turd (6) tho Dirt that thorned pocking plant/smnkehousc ' cd" the SPI Operations Pima asinthevsdnityi epcoificallyfartheprvoe9sing of food fr.lmman consumption. Finally, the Women's.Bc CouuttutdtyCouncil has substantial COMMIS regardingfl ls'taragea i use at the facility. The Operations Plan calls for two 8,000 gallon LPOtankets on site at all furies, plus additional fitelduringre- loading procedures. iltettea nantffeilitywilluseappzotraately12 .000galon offuel per week, which we understand robe greater the the combined use ofthenntoftbaistaad. The local rite department is incapable offigtfing afire re that involves tbesetaake ra. Moto the oonaguration of the neighborhood, most ofthe residents Must pass theBr / SPIslteinorderto1eavethecom [tttmity. in the event ofa fire, they wquld be trapped and forvod to evaouateback into tile mountains, As ISAAC 75.365 and 18 AAC 78.273 bothtequitvthe department to determine dot theproposed Operations Plea is "protectiveofhunum lugs and infety, 'witiroutivaindic ma, kis our coateedv;edam this dutat should have been considered, and it does not appear that it has beep,. 'As yauknow,18 AAC 75365(a)(I)(A) and 18 AAC 78273(aX1)(Ati) bothroquire that thepless must include a facility diegramshowipgthelooationofallwalls mud Bath= water, aswell as an Public end privetabuildiagswithia5U0 foot albs hoility. The aeriieiphotogarh that appears tobavebetstintencled to fulfill this requirement does not include all wells, 0 I VN/?I t6ZZZ9ZLO9T 7CVd 99: LO afkL Z0 /90 /0T 08/002002 11:34 FAX 9074515105 ADEC SPAR -CS /DOD fU0o8 • AUG-08 -2002 TUE 08!60 AM FAX NO. P. 07 AilreS- 2001 OldihI Frain- Ashburn ind KWON 4217121M 7-441 pA06/O06 F-A @S 4611SUAN AND MA3014 Lamy DDietrick Llixecrar Department of En` iroteaentel Conservation Division of Spill Prevention and Response August 5, 2002 Page 5 Thank you for yaw consideration of ibls request. Very truly yours, ASHBURN & MASON ;ilk' C`'---)r • WSC:ajw uiry nouWa250ck Ll ZToI 1 William S. Cummings OKQV HOLdgO IVUO}I 176ZZZ9ZLO6T XVA 68 : LO HELL Z0/80 /0T Kodiak Island Borough William S. Cummings Ashburn and Mason, Lawyers Inc. 1130 West Sixth Avenue, Suite 100 Anchorage, Alaska 99501-5914 Community Development Department 710 Mill Bay Road Kodiak, Alaska 99615 Phone (907) 486-9363 Fax (907) 486-9396 www.kib.co.kodiak.ak.us August 2, 2002 Re: Request for Reconsideration and Withdrawal of Zoning Compliance Permit (ZCP) BZ 02-061, which allows a soil remediation use and related equipment and improvements to be located on Tract A, Block 3, Bells Flats Alaska Subdivision as a similar use, in accordance with KIBC Section 17.03.090 A (Similar uses may be permitted). (Permittee: Soil Processing Inc.; Land Owner: Brechan Enterprises, Inc.) Dear Mr. Cummings: This letter is in response to your letter referenced above and dated July 30, 2002. The borough welcomes the opportunity to clarify and resolve any disagreements with the department's interpretation of Kodiak Island Borough Code, Title 17. In your letter you have raised a number of issues of concern to the residents of Womens Bay. Those issues, relating directly to a similar use determination, have now been addressed in the attached written similar use determination. Regarding the request to withdraw or rescind permit BZ 02-061, the department must respectfully decline. The attached similar use determination formalizes • the findings that staff relied upon as the basis for issuing permit BZ 02-061. Through this written determination and related findings, it is hoped that the questions and concerns of your clients can be satisfactorily resolved. If not, the written determination and related findings may serve as a basis for further review, either by petition to the Borough Assembly, or by petition to superior court pursuant to KIBC 17.7 30.B. Respe y sub ec or Cc: Patrick S. Carlson, Borough Manager; KIB Assembly and Mayor; KIB Planning and Zoning Commission; Brechan Enterprises, Inc.; Soil Processing, Inc. Attachments: Similar Use Determination, per KIBC 17.03.090.A, allowing soil remediation in the I-Industrial zone as a use similar to an asphalt batch plant, dated August 2, 2002. • Kodiak Island Borough Community Development Department 710 Mill Bay Road Kodiak, Alaska 99615 Phone (907) 486-9363 Fax (907) 486-9396 www.kib.co.kodiak.ak.us Date: August 2, 2002 To: Administrative Opinion File Copy: Property File for Tract A, Blo Bells Flats AK Sub. From: Duane Dvorak, Director Re: A Similar Use Detennina ion, per KIBC 17.03.090.A, allowing soil remediation in the I- Industrial zone as a use similar to an asphalt batch plant. Background This determination is made in accordance with KIBC 17.03.090.A and is intended to address the use of I-Industrial zoned land for soil remediation, as a use similar to an asphalt batch plant and similar in terms of character and impact. This question has arisen regarding the recent permitting of a soil remediation facility on Tract A, Block 3, Bells Flats Alaska Subdivision, but the determination should be construed to be of general application to all land within the Kodiak Island Borough that is zoned I-Industrial. In a letter to Bells Flats residents Jim and Nancy Wells, dated May 24, 2002, staff made reference to soil remediation use being similar to a permitted asphalt batch plant. This reference was made on the basis that borough staff had previously responded to questions at the public counter in the Community Development Department with this same information. A discussion with the former department director indicated that the department has been providing this information to the public since 1996 or 1997, according to her recollection. Correspondences on file during 1996 and 1997 indicate that the subject of soil remediation was a common topic of discussion during this period. This resulted, in good measure, from a growing awareness of unresolved soil contamination issues at formerly used military sites, and other locations, some dating back to the Cold War Era and World War II. At that time, it appeared that environmental awareness coupled with technological advances were providing increasingly safer and more cost effective methods for addressing these long standing contamination problems in the community. Because previous inquiries did not result in the issuance of a zoning compliance permit, which would have been assigned to a particular piece of property, it is possible that no written determination has previously been made to formally address this issue. In any event, diligent Similar Use Determination Soil Remediation in the I-Industrial zone Page 2 of 8 research by staff has not been able to identify a written similar use determination regarding soil remediation in the I-Industrial zone. In the context of the Wells request, staff noted that KIBC 17.03.090.A does not require a written determination or written findings. At that time, staff did not wish to substitute it's judgment, under the present circumstances in Womens Bay, for a decision that appeared'to have been made under the previous administration. Nevertheless, in light of the recent request from the concerned citizens of Womens Bay for the reconsideration and withdrawal of Zoning Compliance Permit BZ 02-061, dated July 30, 2002, the department has been requested to issue a written determination at this time. This memorandum is intended to provide written findings for the record that will clarify the basis of the department's determination to allow the soil remediation use. Analysis As previously noted, the Community Development Department has determined that soil remediation use is similar to a permitted asphalt batch plant, which is a permitted principal use in the I-Industrial zone. It should be clarified, however that this reference only applies to those soil remediation activities utilizing a thermal desorption process. This determination would not, for example, apply to a bio-remediation process. The term "similar use" is not defined in the Kodiak Island Borough Code. It is, however, a "term of art" in the planning and zoning field. Staff refers to The New Illustrated Book of Development Definitions (Rutgers, 1993) regarding a definition of similar use as follows: "A use that has the same characteristics as the specifically cited uses in terms of the following: trip generation and type of traffic, parking and circulation, utility demands, environment impacts, physical space needs, and clientele." In a related comment, the term "same" is clarified as shown below: "The term 'same' refers to the range of impacts of all the previously cited uses as opposed to one specific standard for each characteristic." Based upon this definition, the department finds that the number of trips and the type of traffic generated to and from the site are similar. The movement of contaminated soil is very similar to the movement of batched asphalt. The movement of such materials is usually accomplished in large quantities requiring the use of heavy equipment such as dump trucks, belly-dump tractor- trailers, front-end loaders, conveyors, etc. In addition, the parking and circulation requirements of the vehicles used in these uses are similar in nature. Because the I-Industrial zone permits concurrent uses, there is no reason why multiple uses cannot occupy the same piece of property so long as the practical requirements of the zoning district, parking code and other applicable regulations are met. Similar Use Determination Soil Remediation in the I-Industrial zone Page 3 of 8 Regarding utility demands, it appears that soil remediation facilities utilizing a thermal desorption process are similar to asphalt batch plants in that they process material through the application of high heat, which requires a great deal of fuel and electricity to operate the equipment and thereby process the material. The borough code does define the term industry in KIBC 17.06.335 as follows: "Industry" means the manufacture, storage, extraction, fabrication, processing, reduction, destruction, conversion, or wholesaling of any article, substance, or commodity, or any treatment which changes the form, character, or appearance of a resource material or previously manufactured item. Environmental impacts are generally regulated by the Alaska Department of Environmental Conservation (ADEC). The department defers to ADEC in its area of expertise because the Borough has not enacted specific environmental standards and it does not generally have qualified staff-on-hand to enforce environmental standards. The department does, however, exercise discretion to withhold issuing a permit until the developer can show ADEC approval for the use, subject to the jurisdiction and regulatory authority of ADEC. After reviewing soil remediation ,(by means of thermal desorption) and asphalt batch plant operation, it has been learned that both uses require an air quality permit through ADEC. Both processes employ large quantities of flammable petroleum products to operate the equipment and heat the material. In addition, both uses either introduce petroleum products into the material being processed or extract petroleum contaminants out of the material being processed. Both processes have the potential to create other environmental impacts of a similar nature including noise, atmospheric emissions, soil contamination, water contamination, etc. To a large extent this potential is recognized in the intent language of the I-Industrial zone in KIBC 17.24.005 (Description and intent): "The I-Industrial Zoning District is established as a district in which the principal use of the land is for business, manufacturing, processing, fabricating, repair, assembly, storage, wholesaling, and distributing operations, which may create some nuisance, but which are not properly associated nor compatible with residential land uses. For the industrial zone, in promoting the general purpose of this title, the specific intentions of this chapter are: A. To encourage the construction of and the continued use of the land for business and industrial purposes; B. To prohibit all residential uses of the land not associated with industries and any other land use which would substantially interfere with the development, continuation or expansion of industry in the zone; C. To concentrate the industrial and business uses within designated areas to protect residential districts from noxious or noisy operations; and Similar Use Determination Soil Remediation in the I- Industrial zone Page 4 of 8 D. To encourage the discontinuance of existing uses that would not be permitted as new uses under the provisions of this chapter. The extent to which the Borough can regulate environmental impacts generated from industrial activities is also set forth in the I- Industrial zoning district standards per KIBC 17.24.060 (Performance standards): "All permitted and conditional uses shall comply with the performance standards listed, where applicable, in this section. A. Noise. The noise emanating from a premises used for industrial activities shall be muffled so as to not become objectionable due to intermittent beat, frequency, or shrillness; and where a use adjoins a residential district, the noise loudness measured at the boundary line shall not exceed ninety (90) decibels. B. Lighting. Any lighting shall not be used in a manner which produces glare on public highways and neighboring property. Arc welding, acetylene torch cutting and similar processes shall be performed so as not to be seen outside the property. C. Fire and safety hazards. The storage and handling of inflammable liquids, liquefied petroleum, gases and explosives shall comply with the fire prevention code and all other applicable laws and regulations. Enameling and paint spraying operations shall be permitted when incidental to the principal use and when such operations are contained within a building of two -hour fire- resistive construction. Bulk storage of inflammable liquids below ground shall be permitted if the tank is located no closer to the property line than the greater dimension (diameter, length or height) of the tank. D. Odor. Uses causing the emission of obnoxious odors of any kind and the emission of any toxic or corrosive fumes or gases are prohibited. E. Dust and smoke. Dust and smoke created by industrial operations shall not be exhausted into the air in such a manner as to create a nuisance. F. Open storage. Any storage shall not be located closer than twenty -five (25) feet to any street right -of -way. Any storage shall be enclosed with a fence acceptable to the commission. Whenever lumber, coal or other combustible material is stored, a roadway shall be provided, graded and maintained from the street to the rear of the property permit free access for fire trucks at any time. Similar Use Determination' Soil Remediation in the I-Industrial zone Page 5 of 8 G. Screening. Where an industrial use is adjacent to and within one hundred (100) feet of a residential use or zone, that industry shall provide screening as approved by the commission." Regarding physical space needs, an asphalt batch plant requires a great deal of room for stockpiled raw materials to be used in the asphalt batching process, in addition to the heavy equipment used to move the product/material which may, or may not, be stored onsite. Outdoor storage is a permitted, use in the I-Industrial zone as a specifically permitted use in the B- Business district in accordance with KIBC 17.21.020.W and through the cumulative application of permitted B-Business zone uses in KIBC 17.24.010.A. Outdoor storage is, however, subject to certain setbacks from the exterior property boundaries as previously noted above in KIBC 17.24.060.F. With regard to the utilization of large quantities of flammable petroleum products on the site in support of asphalt batch plant and similar uses, staff has reviewed the applicable provisions of KIBC 17.24.020.F which addresses conditional uses that may be allowed in the I-Industrial zone subject to a public hearing review. The applicable language is shown below: KIBC 17.24.020.F Petroleum or flammable liquid production, refining or storage. This provision, as it applies to petroleum or flammable liquids, does not indicate a specific quantity for storage purposes that would trip the requirement for a conditional use review. In addition, the code does not distinguish between the various types of petroleum or flammable liquids such as fuel oil, diesel oil, unleaded gas, aviation gas, jet fuel, propane, butane, or other flammable liquids. In past practice, the department has commonly used the definition of "bulk storage" to distinguish the customary storage of petroleum or flammable products used in support of a permitted principal use in the I-Industrial zone, from that "bulk storage" of petroleum or flammable products in the I-Industrial zone which is itself a principal use requiring a conditional use permit. In this regard, the department has again relied upon The Illustrated Book of Development Definitions (Rutgers, 1993), which defines "bulk storage" as: "The storage of chemicals, petroleum products, grains, and other materials in structures for subsequent resale to distributors or retail dealers or outlets." In a related comment, the term "bulk storage" is further clarified as shown below: "Bulk storage is essentially a warehousing and wholesaling operation. The products are primarily sold for eventual resale and not directly to the consuming public." Similar Use Determination Soil Remediation in the I- Industrial zone Page 6 of 8 This interpretation has been consistently applied by the department in determinations, both formal and informal, for many uses located in the I- Industrial zone, the B- Business zone, the LI -Light Industrial zone and PL- Public Use Land zone. The department interpretation has been that fuel storage, whether it be aviation fuel, diesel, propane, etc., which is necessary in support of a permitted principal use, may be allowed as a constituent part of the overall permitted principal use, so long as the amount of the fuel supply is customary and proportional to the use, and that the installation of those facilities are in compliance with applicable life safety and building safety requirements, and the performance standards of KIBC 17.24.060.C. The only exception to the rule that staff is aware of is the fact that gasoline service stations are a permitted principal use in the B- Business zone as well as the I- Industrial zone, by virtue of the cumulative nature of the uses allowed in the I- Industrial zone. There is a specific reference to underground storage in the performance standards of the I- Industrial zone (KIBC 17.24.060.C). As previously noted for petroleum or flammable liquid storage in the I- Industrial zone as a conditional use, there is no predetermined quantity or volume of product specified for gasoline service stations given the cumulative nature of the product that may be stored onsite. The type and quantities of flammable or petroleum products customarily allowed for gasoline service stations may vary, but usually includes large quantities of gasoline, diesel oil, and often propane service. While gasoline service stations have customarily relied on underground tanks in the past, this has been changing over the years with the advent of new environmental regulations pertaining to underground storage tanks. This has resulted in a number of service station operators opting to use above ground storage tanks of varying sizes. Determination Based on the preceding analysis, the Kodiak Island Borough Community Development Department hereby determines that soil remediation use, based upon thermal desorption technology, is a use similar to an asphalt batch plant, which is a permitted principal use in the I- Industrial zoning district, and which is similar to an asphalt batch plant in terms of its character and impact. Findings 1. This determination is an after - the -fact determination that is being made in direct response to a project located in the Womens Bay community that has been granted zoning compliance by the Community Development Department. (ZCP BZ 02 -061) Nevertheless, this determination is presented as a determination of general nature that is applicable to any I- Industrial zoned property. 2. This determination is made in substantial reliance upon the referenced defmitions that are found in The New Illustrated Book of Development Definitions (Rutgers, 1993) which has been a resource guide for the Community Development Department since 1993, when it replaced the prior edition (Rutgers, 1981) which is still on file in the Community Development Department library. Similar Use Determination - Soil Remediation in the I-Industrial zone Page 7 of 8 3. The Kodiak Island Borough Code provides a range of land use zoning districts to provide for the everyday needs of the borough community. The I-Industrial zone is an appropriate district for industrial activities as allowed by KIBC Chapter 17.21. While it is recognized in the code that industrial uses are not compatible with residential uses, the interpretation of the I-Industrial district standards must be consistent with prior determinations made for industrial uses in other locations. 4. Soil remediation, based upon thermal desorption technology, is a use similar to an asphalt batch plant, which is a permitted principal use in the I-Industrial zone, and both uses are similar in terms of their character and impact as described more fully in the analysis portion of this determination. 5. Environmental regulations related to industrial uses such as asphalt batch plants and soil remediation facilities are clearly the province of the Alaska Department of Environmental Conservation (ADEC) to enforce. In order to ensure compliance with these regulations to the greatest extent possible, the department has withheld zoning compliance permits until appropriate notifications and plan reviews have taken place and ADEC has issued approval to begin development of regulated facilities. 6. In accordance with KIBC 17.24.060.0 (Fire and safety hazards) the department has routinely deferred to the State Fire Marshal and to the local Building Official, who are responsible for regulating mechanical and plumbing installations, to determine that the uses manifestly allowed in the I-Industrial zone properly configured and constructed from the standpoint of life safety and structural safety. Similar to the manner in which permit coordination is done with ADEC, the department has withheld zoning-compliance permits until the appropriate public safety and building officials have been notified and approvals to proceed with development are obtained. Appeal Rights As part of this review and analysis, staff has reviewed MB Ordinance 92-17, which amended KIBC 17.100.020.0 (Powers of the Board) to specifically allow appeals to the Board of Adjustment (Assembly) from Similar Use Determinations made pursuant to KIBC 17.03.090. Although the amendment to KIBC 17.100.020.0 added only the phrase "and from findings as may be required by sections of this title", supporting documentation in the file, which was not included in the ordinance, clearly establishes a linkage with KIBC 17.03.090. This amendment was not associated with a similar amendment in KIBC 17.100.030 (Persons who may appeal), which is the section that determines who may appeal to the Board of Adjustment. As a result, it does not appear that there is created here a right of appeal that would apply to any aggrieved party. Nevertheless, it appears that the Assembly may elect to consider a petition for review of a similar use deterniination under KIBC 17.100.020.0 (Powers of the Board) if in its judgment such review seems warranted. Similar Use Determination Soil Remediation in the I-Industrial zone Page 8 of 8 If the Assembly elects not to review the determination, the provisions of KIBC 17.75.030.B would still be applicable and would provide an avenue of appeal directly to superior court. This procedure is open to any aggrieved party and is consistent with the applicable provisions of AS Title 29 and other applicable state statutes regarding administrative procedures. The Alaska Statutes generally maintain that a right of appeal must exist for any administrative government decision, either to a commission, board of adjustment or the court system. Kodiak Island Borough Public Hearing Item VI-K MEMORANDUM DATE: August 10, 1992 TO: Planning and Zoning Commission FROM: Community Development Department SUBJECT: Information for the August 19, 1992 Regular Meeting BACKGROUND Over the past several years staff has raised the issue of the legality of "exceptions", as provided for in the Borough Code. Staff is of the opinion that "exceptions" are not consistent with Alaska Statute 29.40, the enabling legislation for municipal land use regulations in the State of Alaska. As a result of staffs growing concern we requested, and received, an attorney's opinion about the legality of "exceptions" as provided for in Borough Code. That legal opinion is attached. We believe that a Title 17 code section exists that could partially replace the exception process if it was deleted from the Code. This section is 17.03.090. As currently written it states: 17.03.090 Similar uses may be permitted. Land uses other than those specifically permitted in a district may be allowed if they are similar to those listed and are found by the planning commission, after a public hearing, not to be obnoxious or detrimental to the welfare of the community. (Ord. 81-54-0 §1(part), 1981). In cases where 17.03.090 is inadequate to address the request of an applicant, staff would suggest the process of a rezone. These two process, while not replacing exceptions in an identical fashion, serve to implement what appears to be the intent of Alaska Statute 29.40. RECOMMENDATION Staff recommends that the Planning and Zoning Commission recommend that the Kodiak Island Borough Assembly delete Chapter 17.65 Exceptions from the Borough Code, and provide a specific appeal reference for decisions made under Section 17.03.090 of the Borough Code. EXCEPTIONS Page 1 of 2 • P & Z: August 19, 1992 Public Hearing Item VI-K APPROPRIATE MOTION Should the Commission agree with the staff recommendation, an appropriate motion is provided below: Move to recommend that the Kodiak Island Borough Assembly delete Chapter 17.65 Exceptions, and related references, from the Borough Code. In addition, the Commission recommends that a specific appeal reference for decision made under Section 17.03.090 be added to the Borough Code and that language similar to that of the Borough attorney's be included in any adopting ordinance to deal with previously granted exceptions. EXCEPTIONS Page 2 of 2 P & Z: August 19, 1992 ' Kodiak Island Borough 'AGENDA STATEMENT Meeting of: October 15, 1992 ITEM NO. Ordinance No. 92- ITEM TITLE: An Ordinance deleting Chapter 17.65 Exceptions and related references from the Borough Code, and addition of a specific appeal reference for decisions made under Section 17.03.090 of the Borough Code. SUMMARY STATEMENT: Over the past several years staff has raised the issue of the legality of "exceptions" as provided for in Borough Code., The concern has been that "exceptions" are not consistent with Alaska Statute 29.40, the enabling legislation for municipal land use regulations in the State of Alaska. An attorney's opinion addressing this issue, originally obtained for the Planning and Zoning Commission's information, is attached. The Planning and Zoning Commission held two public hearings on this issue and at their meeting of August 19, 1992 they, moved to recommend that the Kodiak Island Borough Assembly delete Chapter 17.65 Exceptions and related references from. the Borough Code. In addition, the Commission recommends that a specific appeal reference for decisions made under Section 17.03.090 be added to the Borough Code, and that language similar to that of the Borough attorney's be included in any adopting ordinance to deal with previously granted exceptions. FISCAL NOTES [X] N/A Expenditure. Account Required -0- General Fund N/A APPROVAL FOR AGENDA: Mayor; RECOMMENDED ACTION: Move to adopt Ordinance No. 92- in first reading. Introduced by: Mayor Selby Requested by: Planning & Zoning Commission Drafted by: Community Development Depart Introduced: 10/15/92 Public Hearing: 11/05/92 Adopted: 11/05/92 KODIAK ISLAND BOROUGH ORDINANCE NO. 92 -17 AN ORDINANCE DELETING KODIAK ISLAND BOROUGH CODE 17.65 AND PROVIDING FOR AP PEALS OF DECISION MADE UNDER KODIAK ISLAND' BOROUGH CODE 17.03.090 WHEREAS, the Kodiak Island Borough Planning and Zoning Commission has investigated Kodiak Island Borough Code (KIBC) 17.65 Exceptions for consistency with Alaska Statute 29.40; and WHEREAS, the Kodiak Island Borough Planning and Zoning Commission has found that KIBC 17.65 Exceptions is inconsistent with Alaska Statute 29.40.; NOW, THEREFORE, BE IT ORDAINED BY THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH THAT: Section 1: This ordinance is of a general and permanent nature and shall become a part of the Kodiak Island Borough Code of Ordinances. Section 2: KIBC 17.65 Exceptions is hereby repealed. Section 3: Kodiak Island Borough Code 17.03.060 B is hereby amended as follows: 17.03.060 Zoning Compliance B. In all cases where the planning commission or the board of adjustment has granted a variance [er -an.. Bien] to this title, the department will issue zoning compliance to allow the building work to be done in accordance with the decision, except that no permit will be issued following the grant of a variance [of cxccption] until the time for filing an appeal has expired and it is verified that no appeal has been filed. Section 4: Kodiak Island Borough Code 17.26.020 B is hereby amended as follows: 17.26.020 Permit Procedure B. For other zoning districts, the. ....................:............................. ............................... commission shall utilize [on exception] '» o dtt`c naIuse i< >pei^rriit procedure to approve mobile home parks. If approved, subsection (a) of this section 17.26.020 will apply. If the commission denies the Kodiak Island Borough, Alaska Ordinance No. 92 -17 Page 1 of 2 Section 5: Section 6: Section 7: ATTEST: application it dies at that point unless appealed to the Assembly. If passed by the Assembly, the community development department shall issue zoning compliance [and the engineering department shall issue a construction permit]. Kodiak Island Borough Code 17.26.200 is hereby repealed. Kodiak Island Borough Code 17.100.020 C is hereby amended as follows: 17.100,020 Powers of the Board C. Appeals from the decisions of the planning and zoning commission on requests for [exceptions or] variances from the terms of the zoning ordinacnces and from findings as rnav he required bv sections of this tit!e. Section 17.36.090 is hereby added to the Kodiak Island Borough Code as follows: 17.36.090 Exceptions. When a lot, structure or use was authorized by the provisions of former KIBC 17.65 concerning an application for exceptions but does not meet the current requirments of this title, it shall. be considered to have "non-conforming" status and permitted to continue within the limits set forth in this chapter. ADOPTED BY THE KODIAK ISLAND BOROUGH ASSEMBLY THIS 5th OF NOVEMBER, 1992 c anLie--))»64 na F. Smith, Borough Clerk KODIAK ISLAND BOROUGH e M. Selby, Borough Mayo 'cF land, Presiding 0 Kodiak Island Borough, Alaska Ordinance No. 92-17 Page 2 of 2 JOEL H. BOLGER• C. WALTER EBELL• DUNCAN S.,F1ELDS DIANNA R. GENTRY MATTHEW D. JAMIN WALTER W. MASON* JANE E. SAUER ALAN L. pCHMITT MICHAEL C. SC1ACCA• •ACWITTED TO ALASKA AND WASHINGTON BARS ALL OTHERS *01411120 10 ALASKA BAR TO FROM: DATE : RE JAMIN, EBELL, BOLGER & GENTRY A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 323 CAROLYN STREET KODIAK, ALASKA 996I5 TELEPHONE: (907) 486-6024 - FACSIMILE: (907) 486-6112 REPLY TO KODIAK OFFICE MEMORANDUM Linda Freed, Director Community Development Dep Kodiak Island Boro Joel H. Bolge Jamin, Ebell, May 1, 1992 & Gentry Validity of Exception Ordinance Our File No. 4702-235 ANCHORAGE OFFICE: 1200 1 STREET, SUITE 704 ANCHORAGE, ALASKA 99501 TELEPHONE AND FAX (907) 27E1-6100 SEATTLE OFFICE: 300 MUTUAL LIFE BUILDING 605 FIRST AVENUE SEATTLE, WASHINGTON 98104 TELEPHONE: (206) 822-7634 FACSIMILE: (206) 623-7521 MAY 8111/ UNITY DEVELOPMENT DEPARTMENT This memorandum is in response to your questions concerning the validity of Chapter 17.65 of the Kodiak Island Borough Code, providing a procedure for the grant of "exceptions". I have reviewed the provisions of the ordinance and the relevant provisions of the Alaska Statutes. Question Presented: Is Chapter 17.65 of, the Kodiak Island Borough Code inconsistent with the provisions of AS 29.40.040(b) which prescribes limitations on variances granted from land use regulations? Answer: Chapter 17.65 of the Kodiak Island Borough Code is probably inconsistent with AS 29.40.040(b). The continued reliance on this chapter in granting exceptions for land uses which are not specifically permitted by zoning district regulations is legally questionable. Discussion: Chapter 17.65 of the Kodiak Island Borough Code provides a procedure for the grant of exceptions. The authority and purpose for this chapter is described as follows: 17.65.010 Authority and purpose. The planning commission shall review and act upon applications for exceptions. Exceptions are provided for by this chapter for the purpose of providing consideration of land uses which are not specifically permitted by zoning district regulations. The grounds on which an exception may be approved are outlined in KLBC 17.65.050.A. A. Approval. If it is the finding of the commission, after consideration of the investigator's report and receipt of testimony at the public hearing, that the uses proposed in the application, or under appropriate conditions or restrictions, will not endanger the public's health, safety or general welfare, or be inconsistent with the general purposes and intent of this title, and not adversely impact other properties or uses in the neighborhood, the commission shall approve the exception, with or w i t h o u t conditions .. . The ordinance therefore grants unlimited authority to the commission to allow land uses which are not specifically permitted by zoning district regulations so long as the three elements of KIBC 17.65.050A are satisfied. A second class borough is specifically required to provide for zoning regulations restricting the use of land and improvements by geographic districts. AS 29.40.040(a)(1). The conditions for the grant of a variance from the land use regulations adopted under this section is described in AS 29.40.040(b): (b) A variance from a land use regulation adopted under this section may not be granted if (1) special conditions that require the variance are caused by the person seeking the variance; (2) the variance will .permit a land use in a district in which that use is prohibited; or (3) the variance is sought solely to relieve pecuniary hardship or inconvenience. Essentially, the question is whether our exception ordinance which allows the consideration of land uses which are not specifically permitted by zoning district regulation is inconsistent with the provisions of AS 29.40.040(b)(2) which restricts the grant of a variance which would permit a land use in a district in which that use is prohibited. AS 29.40.040(b) must be interpreted under the rules of construction established by the Alaska Legislature in AS 01.10.040. Section 01.10.040. Words and Phrases. Words and phrases shall be construed according to the rules of grammar and according to their common and approved wage. Technical words and phrases and those which have acquired a peculiar and appropriate meaning, whether by legislative definition or otherwise, shall be construed according to the peculiar and appropriate meaning. One source for the technical legal definition of words and phrases is Black's Law Dictionary (6th Ed. 1991). The Black's defmition for the term 'variance" includes the following explanation of the use of that term in zoning matters: Zoning. Permission to depart from the literal requirements of a zoning ordinance by virtue of unique hardship due to special circumstances regarding person's property. It is in the nature of a waiver of the strict letter of the zoning law upon substantial compliance with it and without carrificing its spirit and purpose ... an authorization to a property owner to depart from literal requirements of zoning regulations in utilization of his property in cases in which strict enforcement of the zoning regulations would cause undue hardship ... A "use variance" is a variance permitting a use other than that permitted in particular districts by zoning ordinance. (Citations omitted.) Black's Law Dictionary also includes the following defmition of the term "special exception ": Special exception to municipal ordinance refers to special uses which are permissive in particular zones under ordinance and are neither non- ; conforming uses nor akin to a variance and refers to special use which is considered by local legislative body to be essential or desirable for welfare of community and its citizenry and which is entirely appropriate and not essentially incompatible with basic uses and zone involved, but not at every or any location therein or without restriction or conditions being imposed on such use... A special exception allows the property owner to put his property to the use which regulations expressly permit under conditions specified in the zoning regulations themselves.... Such a use is also known as a conditional use, special permit, or special use. (Citations omitted.) These dictionary definitions appear to be consistent with the definitions adopted by leading commentators. The variance contemplates a departure from the terms of the ordinance in order to preclude confiscation of property, while the exception contemplates a permitted use when under the terms of the ordinance the prescribed conditions therefore are met. 3 Anderson, American Law of Zoning. § 20.03 at 369 (3d ed. 1986); see also Hagman & Juergensmeyer, Urban Planning and Land Development Control Law § 6.3 at 167 (2d ed. 1986). The special exception described in the dictionary definition and commentary refers to a land use privilege which is identical to the conditional use permit which may be granted under Chapter 17.67 of the Kodiak Island Borough Code. Under our zoning ordinance, a conditional use permit may be granted in order to allow a use of property which is expressly permitted under the code if certain conditions are established and approved. For example, in the industrial zone, junk yards are specifically permitted (IBC 17.24.010.N), but sanitary landfills are a conditional use which may be permitted under permit from the planning and zoning commission, KIBC 17.24.020.E. The exception process described in Chapter 17.65 of the KIBC does not fit squarely within the traditional defmition of a special exception. The KIBC exception allows land uses which are not specifically permitted by zoning district regulations, but the traditional definition of special exceptions allows land uses which are specifically permitted by zoning regulations when certain conditions are met. KIBC Chapter 17.65 fits more directly within the traditional definition of a variance. There is no defmition of the terms 'variance" and "exception" in the Alaska Statutes. The legislature, however, has used the word "variance" to describe a land use entitlement which is similar to the dictionary definition and commentary set forth above. For example, the Airport Zoning Act specifically allows variances in the following circumstances: AS 02.25.070. Variances... Variances shall be allowed where a literal application or enforcement of the regulations would result in practical difficulty or unnecessary hardship and the relief granted would not be contrary to the public interest but would do substantial justice and would be in accordance with the spirit of the regulations in this chapter.. Likewise, the alcoholic beverage statute provides that "a person may not be issued a license or permit in a municipality if a zoning regulation or ordinance prohibits the sale or consumption of alcoholic .beverages unless a variance of the regulation or ordinance has been approved." AS 04.11.420(a). There is likewise no definition of "exception" contained in the Alaska Statutes. The only section which employs this term with respect to a land use entitlement is the immunity statute which provides that no action for damages may be brought against a municipality if the claim: (3) is based upon the grant, issuance, refusal, suspension, delay, or denial of a license, permit, appeal, approval, exception, variance, or other entitlement, or a rezoning . . . AS 09.65.070(d)(3). This section does not provide any real guidance concerning the legislature's use of the term beyond a recognition that an exception may be a type of land use entitlement granted by a municipality. In summary, an exception granted under Chapter 17.65 of the Kodiak Island Borough Code appears to be a type of variance, very similar to the "use variance" described in the Black's Law Dictionary definition. If this chapter indeed describes a type of variance, then the grant must comply with AS 29.40.040(b) (2) which clarifies that a variance may not be granted if the variance would permit a land use in a district in which that use is prohibited. Our exception ordinance is inconsistent with this statute because it specifically allows the grant of an exception in order to provide for a land use which is not permitted in the zoning district involved. If the assembly determines to repeal the exception, ordinance based upon the provisions of AS 29.40.040(b), then questions may remain concerning existing exceptions which have been granted. If the assembly repeals the ordinance without recognizing these previous exceptions, then a contention will arise about whether the uses granted by previous exceptions remain authorized forever or whether the uses will become immediately illegal if they are inconsistent with the zoning district in which they are located. I would recommend the enactment of a new code section, perhaps 17.36.090, to deal with this situation as follows: 17.36.090 Exceptions. When a lot, structure or use was authorized by the provisions of former Chapter 17.65 concerning an application for exceptions, but does not meet the current requirements of this title, it shall be considered to have "non-conforming" status and permitted to continue within the limits set forth in this chapter. Thank you for referring this interesting problem. Feel free to call if you have any questions. JHB:tah cc: Honorable Jerome Selby, Mayor Mr. Jack McFarland, Presiding Officer Kodiak Island Borough Assembly 4702\235M.002 OA IIIu.s.trated Book of By HARVEY S. MO$KOWITZ and CARL G. LINDBLOOM About the Authors HARVEY S. MOSKOWITZ, P.P., A.I.C.P., is president of Moskowitz, Heyer & Gruel, PA, a planning consulting firm with offices in Florham Park, New Jersey. He is a licensed professional planner in New Jersey and is a former member and past president of the New Jersey Board of Professional Planners. Moskowitz has a Ph.D. in urban planning and policy development from Rutgers University and an M.P.A. from New York University. He was formerly on the Board of Directors of the American Planning Association. CARL G. LINDBLOOM, P.P., A.I.C.P., is president of Carl G. Lindbloom Associates, a planning and urban design firm with offices in Princeton, New Jersey. He is a licensed professional planner in New Jersey and is a former member of the Princeton Township (New Jersey) planning board. Lindbloom has an undergraduate degree in architecture and a graduate degree in city design from Miami University, Oxford, Ohio. They Illu; Booty By HARVEY S. R and CARL G. LINT CENTER EBB URBAN POLICY SEARC'' Copyright © 1993 by Rutgers, the State.University of New Jersey All rights reserved Published by the Center for Urban Policy Research Building 4161—Livingston Campus New Brunswick, New Jersey 08903 Printed in the United States of America Library of Congress Cataloging-in-Publication Data ILLUSTRATIONS PREFACE ACKNOWLEDGMENTS INTRODUCTION DEVELOPMENT DEFINITIONS REFERENCES Moskowitz, Harvey.S. The new illustrated book of development definitions / Harvey S. Moskowitz and Carl G. Lindbloom. p. cm. Includes bibliographical references (p. ISBN 0-88285-144-6 1. City planning—United States—Dictionaries. 2. Zoning—United States—Dictionaries. 3. City planning and redevelopment law— United States—Dictionaries. 4. Rural development—United States Dictionaries. I. Lindbloom, Carl G. IL Rutgers University. Center for Urban Policy Research. III. Title. HT167.M683 1993 307.1'216'0973—dc20 92-19394 CIP Conte esulting Basic Design Elements Letter stance Height feet) (inches) 234 5 410 8 586 12 293 6 510 10 733 15 322 7 564 11 806 16 ,056 21 Total Area of Sign (s.f.) Commercial' Industrial (surroundings) 15 35 75 20 50 120 25 65 130 200 Institutional, Residential' Rural (surroundings) 10 20 50 15 35 80 20 40 90 150 tat Ewald, Street Graphics and the Law (Chicago: ioli,"-th38), pp. 54-55. 4. Height: The maximum height of the top of signs ld not be higher than the maximum height permitted e zone. In addition, no signs should be permitted e the roof line of any building. 5. Color, Material, Lighting, and Content: Signs in itenanted buildings, such as a shopping center, Id be coordinated as part of an approved sign plan. ?Ian should include placement, sign area, materials, ng, and content. On individual signs, lighting should S stricted so as to avoid glare to the traveling public, o avoid creating a nuisance to surrounding property TS. Pi.17gs, Banners, and Pennants: Banners and le designed for instant attention. They create.. nivat-like atmosphere and should be banned except trnivals, special temporary events, or the opening of :stablishments, National flags are another matter. Many businesses, :ularly car dealers, are now featuring enormous on-size flags on very high flagpoles. No one would :st that their motive is other than patriotism; how- there is no reason why the height of the pole cannot. stricted to the maximum height of all freestanding in the district. In addition, the forces resulting from: winds on flagpoles flying very large flags can cause ural failures. SIGN PROJECTION SIGNAL SPACING SIGNIFICANT INCREASE IN TRAFFIC T SILVICULTURE SIMILAR USE 254 SINGLE O R SINGLE-FAMILY DWELLING On a sign attached to a wall, the distance from the exterior wall surface to the sign element farthest distance from such surface. See Figure 64. The distance between traffic signals along a roadway. Vehicular use exceeding the previously anticipated two- way traffic generated by a lot by the greater of: 1. One hundred movements during the peak hour of the highway or the development; or (by) 2. Ten percent of the previously anticipated daily move- ments. Comment: The two standards (one hundred movements and 10 percent) are those established by the New Jersey State Highway Access Code. A significant increase in traffic triggers more study and possibly the need for improvements to the highway system. Finely divided particles of soil or rock, often carried in cloudy suspension in water and eventually deposited as sediment. The development and/or maintenance of a forest or wooded preserve. A use that has the same characteristics as the specifically cited uses in terms of the following: trip generation and type of traffic, parking and circulation, utility demands, environmental impacts, physical space needs, and clien- tele. See CHANGE OF USE. Comment: The term "same" refers to the range of im- pacts of all the previously cited uses as opposed to one specific standard for each characteristic. Ownership by one or more persons, in any form of ownership, of more than one lot entirely in the same ownership. Comment: The definition of single ownership becomes important since most ordinances permit the development of undersized isolated lots providing they are in single ownership. See ISOLATED LOT. See DWELLING, SINGLE-FAMILY DETACHED; DWELL- ING, SINGLE-FAMILY SEMIDETACHED. 255 BUILT-UP AREA An area where less than 25 percent of the land is vacant. Comment: While the figure of 25 percent is somewhat arbitrary, it is at this figure (75 percent developed). that an area gives the observer the impression of being totally developed. BULK ENVELOPE BULK PLANE BULK REGULATIONS 4.. BULK STORAGE See ZONING ENVELOPE. See SKY EXPOSURE PLANE. Standards and controls that establish the maximum size of buildings and structures on a lot and the buildable area within which the building can be located, including cov- erage, setbacks, height, floor area ratio, and yard require- ments. The storage of chemicals, petroleum products, grains, and other materials in structures for subsequent resale to distributors or retail dealers or outlets. Comment: Bulk storage is essentially a warehousing and wholesaling operation. The products are primarily sold for eventual resale and not directly to the consuming public. BULKHEAD A retaining wall created along a body of water behind which fill is placed. See Figure 13. TP.IN i NIG L- 66,o1..141-+E^E,) WAT e R..AI7 If( FILL E5ULK.HEAD LINE Figure 13 44 BULKHEAD LINE A linc or str Comm shore] usuall LINE. BULLETIN BOARD SIGN See Si BUMPERS Perma front N Comm lem in parkin, They a to wid curbing BUS POOL A bus limited and ad' BUS SHELTER A sma located protect ure 14. Comme . materia accomn BUS TERMINAL or STATION Any pr( buses a: Commei facilitie BUS TURNOUT A pave( allow b Figure BUSINESS SERVICES Establi: to busi such a5 employ vices; 1 Introduced by: Mayor Selby Requested by: Assembly Recommended by: Planning & Zoning Commission Drafted by: Community Development Department Introduced: 08/06/92 Public Hearing: 09/03/92 Postponed: 09/03/92 Public Hearing: 09/.17/92 Amended: 09/17/92 Adopted: 09/17/92 KODIAK ISLAND BOROUGH ORDINANCE NO. 92 -13 AN ORDINANCE CREATING ADDITIONAL NEW ZONING DISTRICTS: RNC -RURAL NEIGHBORHOOD COMMERCIAL, UNC -URBAN NEIGHBORHOOD COMMERCIAL, RB- RETAIL BUSINESS, AND LI -LIGHT INDUSTRIAL AND AMENDING TITLE 17 OF THE KODIAK ISLAND BOROUGH CODE WHEREAS, the Kodiak Island Borough Assembly directed the Planning and Zoning Commission to develop new "business" zoning districts; and WHEREAS, the Planning and Zoning *Commission has, after two public hearings and numerous work sessions, recommended that the Assembly adopt the - proposed regulations for four new zoning districts and amend Kodiak Island Borough Code 17.03.090. NOW, THEREFORE, BE IT ORDAINED BY THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH THAT: Section 1: This ordinance is of a general and permanent nature and shall become a part of the Kodiak Island Borough Code of Ordinances. Section 2: Kodiak Island Borough Code 17.03.090 is hereby repealed and reenacted as follows: --, 17.03.090 Similar uses may be permitted. A. Land uses other than those specifically permitted in a district may be allowed if they are similar to those listed and are found by the community development department to be similar in character and impact. B. Land uses other than those conditionally permitted in a district may be allowed if they are similar to those listed and are found by the planning commission, after a public hearing, to be similar in character and impact. Kodiak Island Borough, Alaska Ordinance No. 92 -13 Page 1 of 10 C. In all cases, the outdoor storage of materials and equipment is prohibited unless it is listed as a permitted or conditional use in a district. Section 3: Kodiak Island Borough Code Chapter 17.22 is hereby created as follows: Sections: 17.22.010 17.22.020 17.22.030 17.22.040 17.22.050 17.22.060 17.22.070 17.22.080 17.22.090 17.22.100 17.22.110 Chapter 17.22 RNC - RURAL NEIGHBORHOOD COMMERCIAL Description and intent. Permitted principal uses and structures. Permitted accessory uses and structures. Conditional uses. Minimum lot area and width requirements. Maximum lot coverage for structures. Maximum height of structures. Setbacks from property lines. Special district regulations. Fences, parking, and signs. Nonconformities. 17.22.010 Description and intent. The Rural Neighborhood Commercial Zoning District (RNC) is intended to be applied in areas where public sewer and water service is not available. The Rural Neighborhood Commercial Zoning District is established for the purpose of providing for limited retail and personal service uses for the consumer population in the immediate neighborhoods in which such uses are located and limited opportunities to support the tourist industry. This district is not intended for those types of uses that will attract either the consumer population of large segments of the community or attract large volumes of traffic. It is intended to be compactly designed. Neighborhood commercial development in contiguous locations is encouraged to avoid uninterrupted linear commercial development, lessen traffic conflicts, and improve the safety and convenience of customers. Such consolidation may also economically provide for the appropriate screening and /or landscaping buffers needed to protect property values in adjacent residential areas. 17.22.020 Permitted principal uses and structures. A. Animal hospitals, veterinary clinics, and .boarding kennels. B. Automobile service stations. C. Bed and breakfasts /motels. D. Churches. Kodiak Island Borough, Alaska Ordinance No. 92 -13 Page 2 of 10 E. Commercial recreation facilities (e.g. racquetball courts, health clubs, ice rinks, etc.). F. Community halls and assembly areas. G. Parks and playgrounds. H. Restaurants and bars. Retail stores and service shops (e.g. beauty shops, clinics, grocery stores, professional offices, etc.). J. Schools /daycare facilities. K. A single - family dwelling if located on lot with a structure containing a permitted business use. L. Warehouses. 17.22.030 Permitted accessory uses and structures. A. Accessory buildings. 17.22.040. Conditional Uses. A. Institutional. facilities (e.g. hospitals, fire stations, group homes, correctional facilities, etc.). B. Utility and service uses (e.g. substations). 17.22.050 Minimum lot area and width requirement. There is a minimum lot area of forty thousand (40,000) square feet and a minimum width requirement of one hundred twenty (120) feet. 17.22.060 Maximum lot coverage for structures. There is no maximum lot coverage requirement. 17.22.070 Maximum height of structures. The maximum height limit for structures in this district is thirty -five (35) feet. 17.22.080 Setbacks from property lines. A. There is a required front yard set back of twenty -five (25) feet. B. There is a required side setback of fifteen (15) feet. C. There is a required rear setback of twenty (20) feet. 17.22.090 Special district regulations. A. Corner Tots are the preferred location for properties in this zoning district, especially those lots which front on arterial or collector streets, and which have adequate frontage for driveway separation from an intersection. 17.22.100 Fences, parking and signs. A. Where a lot in the neighborhood commercial district is adjacent to a lot in a residential district, the owner of the lot in the neighborhood commercial district shall be required to erect and maintain a solid, four (4) foot fence along the property line, adjacent to the residential district, from the time the property in the neighborhood commercial district is developed for any purpose. Kodiak Island Borough, Alaska Ordinance No. 92.13 Page 3 of 10 B. Additional regulations for fences, parking and signs are contained in Kodiak Chapters 17.54, 17.57, and 17.60 respectively. 17.22.110 Nonconformities. Regulations for nonconformities (lots, uses and structures) are contained in Chapter 17.36. Section 4: Kodiak Island Borough Code Chapter 17.23 is hereby created as follows: Chapter 17.23 UNC - URBAN NEIGHBORHOOD COMMERCIAL Sections: 17.23.010 Description and Intent. 17.23.020 Permitted Principal Uses and Structures. 17.23.030 Permitted Accessory Uses and Structures. 17.23.040 Conditional Uses. 17.23.050 Minimum Lot Area and Width Requirements. 17.23.060 Maximum Lot Coverage for Structures. 17.23.070 Maximum Height of Structures. 17.23.080 Setbacks From Property Lines. 17.23.090 'Special District Regulations. 17.23.100 Fences, Parking, and Signs. 17.23.110 Nonconformities. 17.23.010 Description and intent. The Urban Neighborhood Commercial (UNC) Zoning District is designed to be applied in areas where public sewer and water service is available. The Urban Neighborhood Commercial Zoning District is established for the purpose of providing for limited retail and personal service uses for the consumer population in the immediate neighborhoods in which. such uses are located. This district is not intended for those types of uses that will attract either the consumer population of large segments of the community or attract large volumes of traffic. The district is intended to be small and compactly designed. Neighborhood commercial development in contiguous locations is encouraged to avoid uninterrupted linear commercial development, lessen traffic conflicts, and improve the safety and convenience of customers., Such consolidation may also economically provide for the appropriate screening, and/or landscaping buffers needed to protect property values in adjacent residential areas. 17.23.020 Permitted principal uses and structures. A. Boarding houses, bed and breakfasts. B. Coffee shops (maximum seating of 20). Kodiak Island Borough, Alaska Ordinance No. 92 -13 Page 4 of 10 C. Community halls, assembly areas (not exceeding five thousand (5,000) square feet in gross floor area). D. Multi- family .dwellings. E. Parks and playgrounds. F. Retail stores and service shops (e.g. beauty shops, grocery stores, clinics, professional offices, etc.) not exceeding five thousand (5,000) square feet in gross floor area. G. Schools /daycare facilities. H. Single- family and two - family dwellings, if located within a structure containing a permitted business use, not exceeding fifty (50) percent of the area of the structure, and not located on the street level of the structure. 17.23.030 Permitted Accessory Uses and Structures. A. Accessory buildings. 17.23.040 Conditional Uses. A. Animal hospitals, veterinary clinics, and boarding kennels. B. Automobile service stations. C. Churches. D. Commercial recreation facilities (e.g. racquetball courts, health clubs, ice rinks, etc.). E. Institutional facilities (e.g. hospitals, fire stations, group homes, correctional facilities, etc.). F. Utility and service uses (e.g. substations, etc.). 17.23.050 Minimum lot area and width requirement. There is a minimum lot area of seven thousand two hundred (7,200) square feet and a minimum width requirement of sixty (60) feet. 17.23.060 Maximum lot coverage for structures. There is no maximum lot coverage requirement. 17.23.070 Maximum height of structures. The maximum height limit for structures in this district is thirty -five (35) feet. 17.23.080 Setbacks from property lines. A. There is a required front yard set back of twenty -five (25) feet. B. There is a required side yard setback of five (5) feet. C. There is a required rear yard setback of ten (10) feet. 17.23.090 Special district regulations. A. Corner lots are the preferred location for properties in this zoning district, especially those Tots which front on arterial or collector streets, and which have adequate frontage for driveway separation from an intersection. Kodiak Island Borough, Alaska Ordinance No. 92 -13 Page 5 of 10 B. A proposed UNC district should be located at least one -half (1/2) of a mile (measured along the shortest roadway length between the two closest lot lines) from an existing or approved neighborhood commercial district. Lots adjacent to existing developed neighborhood commercial lots are exempt from this separation .requirement. 17.23.100 Fences, parking and signs. A. Where a lot in the neighborhood commercial district is adjacent to a lot in a residential district, the owner of the lot in the neighborhood commercial district shall be required to erect and maintain a solid, four (4) foot fence along the property line, adjacent'to the residential district, from the time the property in the neighborhood commercial district is developed for any purpose. B. Additional regulations for fences, parking, and signs are contained in Chapters 17.54, 17.57, and 17.60 respectively. 17.23.110 Nonconformities. Regulations for nonconformities (lots, uses and structures.) are contained in Chapter 17.36. Section 5: Sections: Kodiak Island Borough Code Chapter 17.25 is hereby created as follows: Chapter 17.25 RB - RETAIL BUSINESS 17.25.010 Description and Intent. 17.25.020 Permitted Principal Uses and Structures. 17.25.030 Permitted Accessory Uses and Structures. 17.25.040 Conditional Uses. 17.25.050 Minimum Lot Area and Width Requirements. 17.25.060 Maximum Lot Coverage for Structures. 17.25.070 Maximum Height of Structures. 17.25.080 Setbacks From Property Lines. 17.25.090 Special District Regulations. 17.25.100 Fences, Parking, and Signs. 17.25.110 Nonconformities. 17.25.010 Description and intent. The Retail Business (RB) Zoning District is established for the purpose of providing for a wide range of retail and service businesses for the consumer population of large segments of the community. Because of the potential for heavy traffic and the appearance and performance of these uses, this district is located on the periphery of residential areas and at the intersections of arterial and major collector streets and roads. Kodiak Island Borough, Alaska Ordinance No. 92-13 Page 6 of 10 17.25.020 Permitted principal uses and structures. A. Automobile service stations. B. Boarding houses, hotels and motels. C. Commercial recreational facilities (e.g. health clubs, racquetball courts, ice rinks, etc.). D. Multi- family dwellings - not located on the street level of the structure. E. Parks and playgrounds. F. Retail stores and service shops (e.g. beauty shops, grocery stores clinics, professional offices, etc.). G. Restaurants and bars. H. Single- family and two - family dwellings, if located within a structure containing a permitted business use, not exceeding fifty (50) percent of the area of the structure, and not located on the street level of the structure. I. Schools /daycare facilities. J. Shopping centers. K. Theaters, auditoriums, community halls. 17.25.030 Permitted accessory uses and structures. A. Accessory buildings. B. Outdoor retail display (e.g. small quantities of inventory). 17.25.040 Conditional uses. A. Automobile and boat sales, storage and repair B. Churches. C. Institutional facilities (e.g. hospitals, fire stations, group homes, correctional facilities, etc.). D. Outdoor storage, when screened by a sight obscuring fence, a minimum of six (6) feet in height. E. Utility and service uses (e.g. substations, etc.). F. Warehouses. G. Wholesaling and distributing operations (excluding bulk fuel operations). 17.25.050 Minimum lot area and width requirement. There is no minimum lot area or width requirement except as may be required by the State of Alaska Department of Environmental Conservation in areas where community sewer and water is not available. 17.25.060 Maximum lot coverage for structures. There is no maximum lot coverage requirement. 17.25.070 Maximum height of structures. The maximum height limit for structures in this district is fifty (50) feet. Airport protection and safety regulations may limit building height. Kodiak Island Borough, Alaska Ordinance No. 92 -13 Page 7 of 10 17.25.080 Setbacks from property lines. There are no required setbacks in this district-. 17.25.090 Special district regulations. There are no special regulations for this district. 17.25.100 Fences, parking and signs. A. Where a lot in the retail business district is adjacent to a lot in a residential district, the owner of the lot in the retail business district shall be required to erect and maintain a solid, four (4) foot fence along the property line adjacent to the residential district, from the time the property in the retail business district is developed for any purpose. B. Additional regulations for fences, parking and signs are contained in Chapters 17.54, 17.57, and 17.60 respectively. 17.25.110 Nonconformities. Regulations for nonconformities (lots, uses and structures) are contained in Chapter 17.36. Section 6: Sections: Kodiak Island Borough Code Chapter'17.27 is hereby created as follows: Chapter 17.27 LI - LIGHT INDUSTRIAL 17.27.010 17.27.020 17.27.030 17.27.040 17.27.050 17.27.060 - 17.27.070 17.27.080 17.27.090 17.27.100 17.27.110 Description, and Intent. Permitted Principal Uses and Structures. Permitted Accessory Uses and Structures. Conditional Uses. Minimum Lot Area and Width Requirements. Maximum Lot Coverage for Structures. Maximum Height of Structures. Setbacks From Property Lines. Special District Regulations. Fences, Parking, and Signs. Nonconformities. 17.27.010 Description and Intent. The Light Industrial (LI) Zoning District is established for the purpose of providing for most commercial uses. It is intended specifically to provide for land intensive commercial uses, including some types of manufacturing, repairing, and assembling of goods, particularly those related to the fishing industry. This district's uses are intended to be conducted in a manner not detrimental to the rest of the community by reason of the emission or creation of noise, vibration, smoke, dust, or other particulate matter, toxic or noxious materials, Kodiak Island Borough, Alaska Ordinance No. 92 -13 Page 8 of 10 odors, fire, or explosive hazard, or glare or heat. 17.27.020 Permitted principal uses and structures. A. Automobile service stations B. Automobile and boat sales, storage, and repair. C. Manufacturing (e.g. boat building, crab pot construction, cabinet making, welding and fabrication, etc.). D. - Outdoor storage, when screened by a sight obscuring fence, a minimum of six (6) feet in height. E. Retail stores and service shops (e.g. beauty shops, clinics, grocery stores, professional offices, etc.). F. Warehouses. G. Wholesaling and distributing operations (excluding bulk fuel operations). H. A dwelling unit used by the owner or by a caretaker, manager, and family when located on the premises where they are employed in such a capacity. I. Utility and service uses (e.g. substations, etc.). J. Kodiak Municipal Airport (landing strip and Lilly Lake float plane access), until adequate replacement facilities established. 17.27.030 Permitted Accessory Uses and Structures. A. Accessory buildings. B. Outdoor storage, when screened by a sight obscuring fence, a minimum of six (6) feet in height. 17.27.040 Conditional uses. A. New airports (when a facility is granted a CUP, all aviation related uses will be considered'permitted uses). B. Institutional facilities (e.g. hospitals, fire stations, group homes, correctional facilities, etc.). C. Junkyards and salvage yards. 17.27.050 Minimum lot area and width requirement. There is no minimum lot area or width requirement except as may be required by the State of Alaska Department of Environmental Conservation in areas where community sewer and water is not available. 17.27.060 Maximum lot coverage for structures. There is no maximum lot coverage requirement. 17.27.070 Maximum height of structures. The maximum height limit for structures in this district is unlimited. Airport protection and safety regulations may limit building height. 17.27.080 Setbacks from property lines. There are no required setbacks in this district. 1.7.27.090 Special district regulations. There are no special regulations in this district. Kodiak Island Borough, Alaska Ordinance No. 92 -13 Page 9 of 10 17.27.100 Fences, parking and signs. A. Where a lot in the light industrial district is adjacent to a lot in a residential district, the owner of the lot in the light industrial district shall be required to erect and maintain a solid, six (6). foot fence along the property line adjacent to the residential district, from the time the property in the light industrial district is developed for any purpose. B. Additional regulations for fences, parking and signs are contained in Chapters 17.54, 17.57 and 17.60 respectively. 17.27.110 Nonconformities. Regulations for nonconformities (lots, uses and structures) are contained in Chapter 17.36. Section 7: Kodiak Island Borough Code 17.24.010 GG is deleted. ATTEST: ADOPTED BY THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH THIS 17th DAY OF SEPTEMBER, 1992 KODIAK ISLAND BOROUGH Jero e.M. Selby, Borough M t)z-)-74k 4-7 Donna F. Smith, Borough Clerk siding Officer Kodiak Island Borough, Alaska Ordinance No. 92-13 Page 10 of 10 JOEL H. BOLGER• C. WALTER EBELL* DUNCAN S. FIELDS DIANNA R. GENTRY MATTHEW D. JAMIN WALTER W. MASON• JANE E. SAUER ALAN L. SCHMITT MICHAEL C. SCIACCA• *ADMITTED TO ALASKA AND WASHINGTON BARS ALL OTHERS ADMITTED TO ALASKA BAR JAMIN, EBELL, BOLGER & GENTRY A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 323 CAROLYN STREET KODIAK, ALASKA 99615" TELEPHONE: (907) 486-6024 FACSIMILE: (907) 486-6112 REPLY TO KODIAK OFFICE MEMORANDUM TO Linda Freed, Director Community Development Department Kodiak Island Borough FROM : Joel H. Bolger Jamin, Ebell, ger DATE : June 3, 1992 RE New Zoning Districts Our File No. 4702-298 ANCHORAGE OFFICE: 1200 1 STREET, SUITE 704 ANCHORAGE, ALASKA 99501 TELEPHONE AND FAx . (907) 278-6100 SEATTLE OFFICE: 300 MUTUAL LIFE BUILDING 605 FIRST AVENUE SEATTLE, WASHINGTON 98104 TELEPHONE: (206) 622-7634 FACSIMILE: (206) 623-7521 (VIA HAND DELIVERY) ck This memorandum is in response to your request for review of an ordinance defining four new zoning districts: the Rural Neighborhood Commercial, the Urban Neighborhood Commercial, the Retail Business, and the Light Industrial zones. I reviewed the proposed ordinance for consistency with the provisions of Kodiak Island Borough Code Title 17, the enabling provisions of the Alaska Municipal Code found at AS 29.40.010-200, and state and federal constitutional provisions. I found in general that the language of the ordinance was sufficient to satisfy equal protection considerations, that is that the zoning classifications bear a fair and substantial relationship to a legitimate governmental objective. There do not appear to be any constitutional privacy concerns with the proposed classifications. I likewise have no concern that the zoning regulations would deprive property rights in violation of due process'by setting up arbitrary or capricious classifications. I reviewed the related concerns that you may wish to keep in consideration when the ordinance is passed and proposed for application to specific property districts. State law requires that the zoning regulations should be consistent with the comprehensive plan for the area involved. AS 29.40.040(a). The zoning classifications should not be applied in a manner which is so restrictive that private property is taken without just compensation. In addition, in rezoning any particular district, the code provisions should be followed to ensure that private property owners receive notice and a full hearing before a zoning amendment affecting their property is enacted. I have two specific suggestions with respect to the Light Industrial zone. First, in response to your request, I have reviewed § 17.xx.040.A of the Light Industrial Ordinance to determine whether the grant of a conditional use permit for an airport would involve any possible liability that might accrue to the borough. I have concluded that the review and determination of a conditional use permit' for an airport, would not result in liability to the borough based upon the following provisions of AS 09.65.070(d): Freed Memo June 3, 1992 Page 2 Sec. 09.65.070. Suits against incorporated units of local government.. • (d) no action for damages may be brought apinst a municipality or any of its agents, officers or employees if the claim. . . (3) is based upon the grant, issuance, refusal, suspension, delay or denial of a license, permit, appeal, approval, exception, variance, or other entitlement, or a rezoning. The second comment concerning the Light Industrial district involves the provisions of 17.xx.020.0 defining manufacturing as a permitted principal use. The term "manufacturing" is a lot broader than the examples, "e.g. skiff building, crab pot construction, etc." I suggest that you may want to revise this section to indicate the exact type of manufacturing involved: "C. Vessel and gear construction and manufacturing (e g. skiff building, crab pot construction, etc.)" The following comments deal with identical provisions in the ordinance defining all four zoning districts. The last subsection of 17.xx.020 for each district allows permission for other uses determined by the Community Development Department to be similar in character and impact. This provision is inconsistent with the provision of KIBC 17.03.090 which allows land uses other than those specifically permitted to be allowed if they are similar to those listed and are found by the Planning Commission after a public hearing not to be obnoxious or detrimental to the welfare of the community. I recommend that the code or the proposal be revised so that this type of "exception" is treated in a similar manner for all zoning districts. That is, the last subsection of 17.xx.020 could be deleted and landowners would be required to continue to rely on KIBC 17.03.090 for permission for similar uses after a public hearing. On the other hand, KIBC 17.03.090 could be repealed and a provision similar to the last subsection of 17.xx.020 could be enacted for each zoning district in Title 17. The same logic applies to the identical provisions found in the last subsection of § 17.xx.040 for each proposed district. The last subsection of § 17.xx.090 for each district provides that "outdoor storage of materials and equipment is prohibited." I recommend that this prohibition be handled in a different way. Generally, all land uses not listed as a permitted use in a district are prohibited under KLBC 17.03.080. By listing outdoor storage as a prohibited use in special district regulations for these four districts, however, the borough assembly would be inviting a construction that outdoor storage is permitted in other zoning districts where it is not specifically prohibited. In the alternative, I would recommend adding a section or subsection to KIBC Chapter 17.03 to provide as follows: 'The outdoor storage of materials and-equipment is prohibited unless it is listed as a permitted use in a district." The first sentence of § 17.xx.100 provides that "regulations for fences, parking and signs are contained in code sections that deal specifically with these items." In addition, § 17.xx.110 provides that "regulations for nonconformities (lots, uses and structures) are contained in a code section that specifically deals with these items." I would recommend deletion of both of these provisions. If the intent is to refer to specific code provisions, then citations to the specific code provisions should be inserted. Otherwise, both of these sections just add meaningless additional language on subjects that are covered elsewhere in this zoning code: Section 17.xx.030.A in each section provides that "accessory buildings and uses normal and incidental to the uses permitted in this district" are permitted accessory uses. In the current code sections dealing with the other zoning districts, accessory buildings are listed under the permitted use section consistent with KIBC 17.51.030. Although this organization is not mandatory, I would recommend deletion of the language allowing "uses normal and incidental to the uses permitted in this district." 1 would have Freed Memo June 3, 1992 Page 3 to advise that uses normal and incidental to the permitted uses would probably have to be considered to be permitted under ordinary circumstances. The trouble is that listing normal and incidental uses as an additional permitted use invites a broad interpretation authorizing uses that may be inconsistent with the intent of the district. I recommend reorganization of this section accordingly. Feel free to call if you have any questions. JHB:tah cc: Honorable Jerome Selby, Mayor Mr. Jack McFarland, Presiding Officer Kodiak Island Borough Assembly 4702\298M.001 Jim & Nancy Wells P O Box 1814 Kodiak, AK 99615 (907) 487 -2415 Email: *vialgskptialaska.net May 20, 2002 Pat Carlson, Manager Kodiak Island Borough 710 Mill Bay Road Kodiak, AK 99615 Dear Mr. Carlson, It is our understanding that the application for the proposed soil reinediation incinerator project in Bell's Flats (SPI at the Brechan Asphalt Plant) was deemed an activity consistent with the zoning at the site by the borough planning and zoning department. Having reviewed the Industrial District Code, we are unable to find under which section of the code planning and zoning made this determination. In order to better understand this decision, we are requesting both an explanation of the basis on which this determination was made and the specific section(s) of the Borough Code deemed applicable and used in this decision. Your response can be mailed to us at our above address or sent to us at our email address. Thank you for your expeditious attention to this request. Respectfully, .h`��► Jim and Nancy Wells rr -rr7r rr_Fl j: MAY 2 1 2002 S d Borough Assembly Kodiak Island Borough Community Development Department 710 Mill Bay Road Kodiak, Alaska 99615 Phone (907) 486-9363 Fax (907) 486-9396 www.kib.co.kodiak.ak.us May 24, 2002 Jim and Nancy Wells P.O. Box 1814 Kodiak, AK 99615 Re: Explanation of similar use determinations pursuant to KIBC 17.03.090.A. Dear Mr. and Mrs. Wells: This letter is in response to your letter dated May 20, 2002, which was forwarded to this office for reply from the Borough Manager's office. In the letter, you requested an explanation of the basis in which the department has determined that soil remediation incinerators are deemed an activity consistent with the 1- Industrial zoning district as set forth in KIBC 17.24. In addition to the more specific question, staff will preface this response with some general information about the Kodiak Island Borough zoning code. The determination that soil remediation activity is permitted in the I-Industrial zone was made prior to the recent project in Bell's Flats. Borough zoning in general, and the I-Industrial zone specifically, are intended to segregate and restrict land uses in a systematic fashion. In addition to allowing all uses permitted in the B-Business zone (except residential uses), the I-Industrial zone permits 31 other industrial uses and six conditional industrial uses. Taken alone, KIBC 17.03.080 (Uses prohibited unless authorized) would appear to strictly limit the uses permitted in the I-Industrial zone to the 31 enumerated - uses set forth in KIBC 17.24.010, unless a new use is added to the list by ordinance. This strict approach to listing permitted uses in zoning districts could lead to problems if the list is too short, yet, the other extreme is equally problematic if the community tries to anticipate too many potential uses. For this reason, the code allows the department to make "similar use. determinations" as set forth in KIBC 17.03.090.A (Similar uses may be permitted).. As indicated previously, the department had already made a determination that soil remediation facilities are a permitted use in the I-Industrial zone before the Bell's Flats project was contemplated. In fact, staff has been advising those who inquire about soil remediation use that the I-Industrial zone is the only zone in which soil remediation activities are a permitted use, although there are two other zones where soil remediation may be permitted subject to review as a conditional use. Jim & Nancy Wells Page 2 of 2 Staff has not been able to locate a formal written determination regarding this use, however, staff recollection and the recollection of the former department director, indicate that this has been an operating assumption of the department for more than six years. This determination is based on a finding by the department that soil remediation activities are similar, in terms of the character and impact of the use, to the use permitted by KIBC 17.24.010.0 (Permitted uses), which allows asphalt batch and mixing plants, manufacturing or refining uses. Staff recognizes that the context of the Bells Flats Alaska Subdivision is perceived to be somewhat unique in that industrial uses and residential uses co-exist within the same general area. While this is not unprecedented in the Kodiak Island Borough, this situation does not modify the zoning so that the department can treat the industrial areas in Bells Flats differently from the industrial zones within the City of Kodiak, for example. Nevertheless, the department is sensitive to the fact that the proposed operation of a soil remediation plant is a safety and health concern to the public. For that reason the department will not issue zoning compliance for the proposed soil remediation use until, and unless, approval is first granted by the Alaska Department of Environmental Conservation (ADEC). The proposed soil remediation use is subject to ADEC review and approval regarding air quality and related environmental concerns. It is our understanding that the time frame for ADEC review is being extended to allow the interested public additional time to comment. This additional time will allow a thorough investigation and discussion of the proposed soil remediation technology and equipment. In order to help facilitate this review, the department has furnished ADEC with a vicinity map of the surrounding area in Bells Flats and a copy of the I-Industrial zoning district. Copies of the codes sections relied upon in this letter will also be attached for your review. Please feel free to contact me at 486-9360 should you have questions or require additional information. Sincerely, Duane Dvorak, Director Community Development Department CC: Patrick S. Carlson, Borough Manager KIB Assembly and Mayor KM Planning & Zoning Commission Paul Horwath, ADEC Brechan Enterprises, Inc. File — Tract A, Block 3, Bells Flats Alaska Subdivision Attachment: KIBC 1.04.010; KEBC 17.03.010; KIBC 17.03.080; KIBC 17.03.090; KIBC 17.06.335; KIBC 17.09.010; KIBC 17.24 Attachment to Letter Dated May 24, 2002 Note: The following Kodiak Island Borough Code sections were consulted in response to the letter from Jim and Nancy Wells, dated May 20, 2002. Other code language was reviewed by staff in addition to the following, however, these sections contain the most relevant passages in the opinion of staff. ***** ***** 1.04.010 Grammatical interpretation. Words and phrases shall be construed according to the rules of grammar and according to the common and approved usage. Technical words and phrases, and those which have acquired a peculiar and appropriate meaning whether by legislative definition or otherwise, shall be construed according to the peculiar and appropriate meaning. (Prior code Ch. 1 §7). ***** ***** 17.03.010 Application of provisions. The provisions established by this title for each district are minimum regulations and apply uniformly to each class or kind of structure or land. (Ord. 81-54-0, l(part), 1981; prior code Ch. 5 subch. 2, l(part)). ***** ***** 17.03.080 Uses prohibited unless authorized. Land uses not listed as a permitted use in a district are prohibited. (Ord. 81-54-0, 1(part), 1981). ***** ***** 17.03.090 Similar uses may be permitted. A. Land uses other than those specifically permitted in a district may be allowed if they are similar to those listed and are found by the community development department to be similar in character and impact. B. Land uses other than those conditionally permitted in a district may be allowed if they are similar to those listed and are found by the commission, after a public hearing, to be similar in character and impact. C. In all cases, the outdoor storage of materials and equipment is prohibited unless it is listed as a permitted or conditional use in a district. (Ord. 92-13.2, 1992; Ord. 81-54-0 , 1 (part), 1981). ***** ***** 17.06.335 Industry. "Industry" means the manufacture, storage, extraction, fabrication, processing, reduction, destruction, conversion, or wholesaling of any article, substance, or commodity, or any treatment which changes the form, character, or appearance of a resource material or previously manufactured item. (Ord. 81-40-0. l(part), 1981). ***** ***** 17.09.010 Districts established. The borough is divided into the following land use districts: A. W-Watershed District; B. WH-Wildlife Habitat District; Page 1 of 5 ( ) C. NU- Natural Use District; D. C- Conservation District; E. LI -Light Industrial District; F. RB- Retail Business District; G. RD -Rural Development District; H. RNC -Rural Neighborhood Commercial District; I. RR2 -Rural Residential Two District;. J. RR -Rural Residential District; K. RR1 -Rural Residential One District; L. R1- Single - Family Residential District; M. R2- Two - Family Residential District; N. R3- Multiple Family Residential District; 0. B- Business District; P. I- Industrial District; Q. PL- Public Lands District; R. UNC -Urban Neighborhood Commercial District; and S. SRO- Single Resident Occupancy Standards. (Ord. 96 -01.2, 1996; Ord. 94-04.2, 1994; Ord. 90 -03, 2(part), 1990; Ord. 89- 31.2(part), 1989; Ord. 89- 04.2(part), 1989; Ord. 86 -27 2(part), 1989; Ord. 81- 56.2(part) 1981; Ord. 81- 55- 0.1(part), 1981; . Ord. 81 -43 .2(part), 1981; Ord. 80- 9- 0.2(a)(part), 1980; Ord. 77- 10 -0.2, 1977; prior code Ch. 5 subch. 2.2A). * * * ** * * * ** Chapter 17.24 I- INDUSTRIAL DISTRICT Sections: 17.24.005 Description and intent. 17.24.010 Permitted uses. 17.24.020 Conditional uses. 17.24.030 Lot requirements. 17.24.040 Yards. 17.24.050 Building height limit. 17.24.060 Performance standards. 17.24.005 Description and intent. The I- Industrial Zoning District is established as a district in which the principal use of the land is for business, manufacturing, processing, fabricating, repair, assembly, storage, wholesaling, and distributing operations, which may create some nuisance, but which are not properly associated nor compatible with residential land uses. For the industrial zone, in promoting the general purpose of this title, the specific intentions of this chapter are: A. To encourage the construction of and the continued use of the land for business and industrial purposes; Page 2of5 B. To prohibit all residential uses of the land not associated with industries and any other land use which would substantially interfere with the development, continuation or expansion of industry in the zone; C. To concentrate the industrial and business uses within designated areas to protect residential districts from noxious or noisy operations; and D. To encourage the discontinuance of existing uses that would not be permitted as new uses under the provisions of this chapter. (Ord. 81-40-0. 2(part), 1981). 17.24.010 Permitted uses. The following uses of the land are permitted in the industrial district: A. All uses permitted in B-Business District, except residential; B. Aircraft, automobile and truck assembly or remodeling; C. Asphalt batch and mixing plant, manufacturing or refining; D. Assembly of music and vending machines; E. Auction business; F. Beverage manufacturing; G. Boat building, repair and storage; H. Cabinet shops; I. Concrete mixing batch plants; J. Coal storage yards; K. Dwelling units for a watchman or caretaker on the premises; L. Dyeing plants; M. Gravel or sand extraction; N. Junkyards, wrecking, salvage or scrap metal operations; 0. Lumber mills and sawmills; P. Lumberyard, building material manufacture or sales; Q. Machine or blacksmith shops; R. Manufacturing, servicing or repair of light consumer goods, such as appliances, batteries, furniture, and garments; S. Metal working or welding shops; T. Motor freight terminals; U. Outdoor storage; V. Paint shops; W. Public uses; X. Rock crushers; Y. Seafood processing establishments and their dormitories; Z. Sewage treatment plants; AA. Slaughterhouses; BB. Steel fabrication shops or yards; CC. Vehicle impound lots; DD. Vocational or trade schools; EE. Utility installations; and FF. Warehousing within an enclosed structure. (Ord. 92-13.7, 1992; Ord. 81-40-0 .2(part), 1981). Page 3 of 5 17.24.020 Conditional uses. The following uses may be permitted by obtaining a conditional use permit in accordance with the provisions of chapter 17.67 of this title: A. Acetylene gas manufacture or storage; B. Ammonia, bleaching powder or chlorine manufacture; C. Cement, concrete, lime and plaster manufacture; D. Chemical bulk storage and sales; E. Garbage disposal sites, dumps and sanitary landfills; and F. Petroleum or flammable liquid production, refining or storage. (Ord. 81-40-0 •2(part), 1981). 17.24.030 Lot requirements. A. Lot area. The minimum lot area required is twenty thousand (20,000) square feet. B. Lot width. The minimum lot width required is seventy-five (75) feet. (Ord. 81- 40-0 2(part), 1981). 17.24.040 Yards. A. Front yards. 1. there shall be a front yard of not less than thirty (30) feet. 2. the front yard, when facing a state highway, shall be not less than fifty (50) feet. B. Side yards. 1. there shall be a side yard on each side of a principal building of not less than twenty (20) feet, except that approved fire wall installations between adjoining structures provides for construction on the lot line. C. Rear yards. 1. there shall be a rear yard of not less than twenty (20) feet, except that approved fire wall installations between adjoining structures provides for construction on the lot line. D. Exemptions. Waterfront industries are exempt from the requirements of this section. (Ord. 81-40-0 2(part), 1981). 17.24.050 Building height limit. The maximum height of a structure is unrestricted, except that no structure shall interfere with Federal Aviation Administration regulations on airport approach; and provided further, that within fifty (50) feet of any residential district boundary, no portion of any structure shall exceed the height limitations of the residential district. (Ord. 81-40-0 2(part), 1981). 17.24.060 Performance standards. All permitted and conditional uses shall comply with the performance standards listed, where applicable, in this section. A. Noise. The noise emanating from a premises used for industrial activities shall be muffled so as to not become objectionable due to intermittent beat, frequency, or shrill- ness; and where a use adjoins a residential district, the noise loudness measured at the boundary line shall not exceed ninety (90) decibels. B. Lighting. Any lighting shall not be used in a manner which produces glare on public highways and neighboring property. Arc welding, acetylene torch cutting and similar processes shall be performed so as not to be seen outside the property. Page 4 of 5 C. Fire and safety hazards. The storage and handling of inflammable liquids, liquefied petroleum, gases and explosives shall comply with the fire prevention code and all other applicable laws and regulations. Enameling and paint spraying operations shall be permitted when incidental to the principal use and when such operations are contained within a building of two-hour fire-resistive construction. Bulk storage of inflammable liquids below ground shall be permitted if the tank is located no closer to the property line than the greater dimension (diameter, length or height) of the tank. D. Odor. Uses causing the emission of obnoxious odors of any kind and the emission of any toxic or corrosive fumes or gases are prohibited. E. Dust and smoke. Dust and smoke created by industrial operations shall not be exhausted into the air in such a manner as to create a nuisance. F. Open storage. Any storage shall not be located closer than twenty-five (25) feet to any street right-of-way. Any storage shall be enclosed with a fence acceptable to the commission. Whenever lumber, coal or other combustible material is stored, a roadway shall be provided, graded and maintained from the street to the rear of the property to permit free access for fire trucks at any time. G. Screening. Where an industrial use is adjacent to and within one hundred (100) feet of a residential use or zone, that industry shall provide screening as approved by the commission. (Ord. 81-40-0. 2(part), 1981). Page 5 of 5 WOMENS BAY COMMUNITY COUNCIL 538 Sargent Creek Road Kodiak, AK 99615 August 14, 2002 Kodiak Island Borough Borough Clerks Office 710 Mill Bay Road Kodiak, AK 99615 • In light of the Assembly decision made at their August 8, 2002 work session, that there is no provision in borough code for an appeal to or review by any KIB entity, we are requesting refund of the $150.00 appeal fee filed on our behalf. Please see attached copy of the receipt. This was a personal check provided by WBCC Chair, Nancy Wells. Please refund this fee directly to her. We are also at this time requesting copies of all file material related to the gravel leases on Tracts B1, B2, B3 and B4 in the Womens Bay Area. These leases are commonly referred to as the Felton Lease, Brechan Lease and Aleutian Materials Lease. Please include: a copy of the original request for bids (probably 1980 or 1981); copies of the original leases; copies of all KIB actions and correspondence pertaining to these leases; copies of the renewals for these leases (2000); the KIB authorization pertaining to the assignment of Tract B1 and B2 (the Felton Lease); copies of required bonds during the entirety of these leases; and, KIB records documenting volumes of gravel extracted and royalties paid to KIB. We are also requesting copies of the Assembly August 1, and August 8, 2002 work session notes and the minutes of the August 1, 2002 Assembly Regular meeting as soon as they are approved. Respectfully, Nanlry Wells Womens Bay Council Chair Cc: Kodiak Island Borough Assembly Members FECEWED AUG 1 4 2002 1-)IAK !BLAND BOROUGH or THE BOROUGH CLERK KODIAK ISLAND BOROUGH OFFICE OF THE BOROUGH CLERK COPIED TO: Ass MBLY_V MAYO MANAGER V // ORIGINALS TO: CLERK_ FILE ee . eoo ,��ti