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2013-09-18 Regular Meeting RECEIVED Kodiak Island Borough NOV 8 2013 Planning & Zoning Commission Minutes BOROUGH CLERK'S OFFICE KODIAK,ALASKA III L September 18,2013 6:30 p.m.in the KI8 Assembly Chambers CALL TO ORDER CHAIR TORRES called to order the September 18, 2013 regular meeting of the Planning and Zoning Commission at 6:30 p.m. PLEDGE OF ALLEGIANCE CHAIR TORRES led the pledge of allegiance. ROLL CALL Requested to be excused were Alan Schmitt and Frank Peterson. Commissioners present were Alan Torres, Rick Vahl, Kathy Drabek, and Jennifer Richcreek.. Excused were Alan Schmitt and Frank Peterson. COMMISSIONER VAHL MOVED to excuse Alan Schmitt and Frank Peterson. VOICE VOTE ON MOTION CARRIED UNANIMOUSLY Community Development Department staff present was Bob Pederson and Sheila Smith. APPROVAL OF AGENDA COMMISSIONER RICHCREEK recommended removing Case 14-003 from the agenda so more information can be gathered so it can be considered at another time. COMMISSIONER VAHL MOVED to approve the September18, 2013 Planning & Zoning Commission agenda as amended. VOICE VOTE ON MOTION CARRIED UNANIMOUSLY APPROVAL OF MINUTES COMMISSIONER VAHL MOVED to approve the August 21, 2013 Planning & Zoning Commission minutes. VOICE VOTE ON MOTION CARRIED UNANIMOUSLY AUDIENCE COMMENTS AND APPEARANCE REQUESTS There were none. PUBLIC HEARINGS A) Case 14-002. Request rezone of ± 1.49 acres from R1 - Single-family Residential to the B - Business zoning district for Lot 12, Block 16, Tract A, Larsen Bay Subdivision (KIBC 17.205). Bob Pederson reported this property was rezoned to Business in 2008, Case 08-21 in a hearing held in Larsen Bay. The Assembly Ordinance 2009-08 approved that rezone but there was an effective date clause with requirements before the rezone became affective which didn't occur. As a result the owner has again filed for a rezone to bring the existing lodge into compliance. Staff finds it in conformance with the Larsen Bay Comp Plan. Staff recommends approval of this rezone. We received comments opposing the request and we received several 9/18/2013 P&Z Minutes Page 1 of 6 emails from adjoining property owners regarding the same subject matter which he characterizes those emails as a civil matter over boundary disputes. Staff recognized the need for the owner to obtain zoning compliance for the structures on the site and to require an as- built survey. They'll have to demonstrate that those structures are on their property and subject to the rezone they'll have to meet the setbacks or be relocated to achieve that zoning compliance. Staffs recommendation is an effective date of 6 months to pursue that zoning compliance. In response to CHAIR TORRES's question regarding the dates in the guidelines and Summary Statement are different than in the motion, Pederson stated use the September 18th date. In response to COMMISSIONER RICHCREEK who wanted clarification that the findings of fact reflect that prior to the rezone becoming effective the petitioner will obtain the after the fact zoning compliance including this as-built survey, Pederson replied you don't have to specify that in the motion, it's in findings of fact, the Assembly will have that effective date clause. (inaudible). CHAIR TORRES clarified this is a rezone and condition of approvals aren't allowed on rezone cases but the effective date clause with the zoning compliance is allowable and in that same code is says part of the zoning compliance staff can ask for an as-built survey. In response to COMMISSIONER VAHL's inquiry regarding previously there was a 2 year time period for the same clause to be met for the buildings to be brought into compliance so looking at this 6 months is quite a decrease knowing we are going into winter, is it realistic for the petitioner to complete, Pederson replied when staff prepared this recommendation we thought the factors were well known out there, there have been surveys and have been history of some judicial interpretation of where the property line is so we don't anticipate (inaudible). If the Assembly wishes to adopt a timeframe but our intent was to (inaudible). Smith stated the said the date on the Summary Statement is the date of the meeting and was prepared on September 6th along with the staff report. Pederson stated the date on the packet is the 18th so he recommended going with that with the findings because that's what's on the document. COMMISSIONER VAHL MOVED to recommend that the Kodiak Island Borough Assembly approve the rezone of ± 1.49 acres from R1 - Single-family Residential to the B - Business zoning district for Lot 12, Block 16, Tract A, Larsen Bay Subdivision and to adopt the findings of fact as presented in the staff memorandum dated September 18, 2013, as Findings of Fact for Case No. 14-002. Close regular meeting& open public hearing: Bob Maschmedt stated their business address is Larsen Bay,Alaska but their winter address is 6895 Swanson Street, Clinton, WA 98236. They started their business in 1997 and acquired the name Larsen Bay Properties which owns Kodiak Lodge, Lot 12. They constructed the building in 1999 and made further improvements from 2001 to 2004. We accommodate 10 guests at a time and have always paid the Bed Taxes to the City of Larsen Bay which has exceeded $247,000. They didn't get the notice about the meeting in Larsen Bay or we would have been there. There have been 4 surveys in Larsen Bay on this property or adjoining properties. There is a 5th one going on now. When the Army Corp of Engineers put the marina in there was another dispute with a neighboring property to our side. The notice re: survey or block we just received from the borough regarding this meeting is what's being disputed right now; the records on the notice that Ms. Smith sent is disputed by the property owner and is 9/18/2013 P&Z Minutes Page 2 of 6 not the proper legal description. If it continues well end up being in litigation to establish that property line, we are very far away from our other property; it would be extremely expensive if we were to move. We have agreed to quit doing any building or construction but it could take longer than 6 months if it goes to litigation. He gave his prepared statement to Smith for the record. In response to COMMISSIONER RICHCREEK'S question of how there's been 4 surveys done and is there a reason why the boundary lines have been so difficult to establish with those 4 surveys, Maschmedt replied the original survey went back to 1966 when the City of Larsen Bay developed the lots across there. That survey was disputed before we were there, and then another survey was done. Then when the City of Larsen Bay installed their underground power and water facilities it looks as though some of those stakes were taken out when they came in with a backhoe and bulldozer. Then there was another survey, then the marina started and another one and so we're talking about a few feet but everyone from the marina all the way to the city have been affected. The information that the borough has is not of the most recent survey that was filed some time back. Even the one at the City of Larsen Bay is different. Jane Petrich, owner of Lot 11 in Larsen Bay adjacent to Lot 12. Mr. Maschmedt's discussion was about the property but it's not a property line dispute; it's just the rezone but for the rezone to happen there has to be an as-built survey showing there are established property lines, and the Alaska Superior Court made a judgment in 2003 establishing property lines in Larsen Bay so there was a court ruling as a result of litigation between Lot 13 and Lot 12(Mr. Maschmedt's). Recognition has to be given to the Superior Court's judgment which did re- establish the property lines and she thinks that's where the confusion starts is the litigation between Lots 12 and 13, the Superior Court made a ruling on that and they stated in that ruling that a survey done by R.L. Tarrant be established as the survey to be used. She supports the rezone for Business but she hopes that they can show they'll be in compliance by being within their boundaries. She feels the 6 month timeline is enough time. This process started in 2008 and it's now 2013; that's 5 years coming to compliance as a business property. That lodge has been operating on a residential lot and operating a business anyway. It will be a challenge to get surveyors out there but the property owners having a little pressure on them with the 6 month deadline because that's when their season starts again. They won't care about this rezone if it's after 6 months because their season will be over again and another year under their belt. Close public hearing& open regular meeting: COMMISSIONER RICHCREEK stated given both the applicant and adjacent property owner are both in favor of the motion, and with the history and amount of time she feels the 6 months is appropriate. COMMISSIONER VAHL wants to make sure of how this can be resolved in a timely manner. Pederson stated within the last day or so he learned of the judicial determination of the survey and the applicant will be required to submit an as-built and if it shows the property line different than that judicially determined survey the structures will have to be in conformance with the boundaries shown in that action. Anything contrary to that they would have to pursue title action against their neighbor. If the court has ruled and it wasn't appealed that's the final ruling and that's the survey we would go with. Should there be some further appeal that would stay any deadline until that was resolved and he'd have to check with the borough attorney on that. 9/18/2013 P&Z Minutes Page 3 of 6 In response to COMMISSIONER VAHL'S question of what the code enforcement action would be, Pederson replied it could be an assessment of fines and penalties, stop work orders, cease and desist orders since he would be operating a business in a residential category. There's no record anywhere that that business was legally established at that location. In response to CHAIR TORRES' question regarding comments from the applicant, he said the recorded legal description of this lot is the physical corners, correct, Pederson stated he believes that's what he heard but that for purposes of a rezone that wouldn't be a material factor, we're talking about Lot 13, Block 16, Tract A of Larsen Bay Subdivisions where ever those boundaries are is determined by a surveyor or by judicial decree and that's the lot we're talking about. CHAIR TORRES is in support of the rezone but he hates to think that the legal description is wrong. FINDINGS OF FACT 17.205.020 A. Findings as to the Need and Justification for a Change or Amendment. The applicable comprehensive plan supports this rezone which is needed to bring the operation of the lodge into compliance with KIB zoning code. 17.205.020 B. Findin•s as to the Effect a Chan•e or Amendment would have on the Objectives of the Comprehensive Plan. A rezone from R1-Single-family Residential to B-Business would further implement the stated land use goal contained the applicable comprehensive plan. 17.205.020 C. Recommendations as to the approval or disapproval of the change or amendment. The Kodiak Island Borough Planning & Zoning Commission recommends approval of this rezone request, subject to the following effective date: Prior to the rezone becoming effective, the petitioner will obtain after-the-fact zoning compliance for all structures and uses established on the subject lot. Should the zoning compliance requirement not be met within six (6) months of Assembly approval, this approval shall become null and void. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY B) Case 14-003. Request a Conditional Use Permit, per KIBC 179.90.030 A, to establish a church within a portion of a business building, according to KIBC 17.200. This case has been deferred for public hearing at a future meeting. OLD BUSINESS None. NEW BUSINESS None. COMMUNICATIONS A) August Planning& Zoning Results Letters to the Applicants Pederson stated the dates were sent out to you regarding the Code Revision Meetings which we will take up that missing gap between where we left off on Title 17. 9/18/2013 P&Z Minutes Page 4 of 6 COMMISSIONER VAHL MOVED to accept communications as presented. VOICE VOTE ON MOTION CARRIED UNANIMOUSLY REPORTS A) Meeting Schedule: • October 9, 2013 work session at 6:30pm in the KIB Conference Room • October 16, 2013 regular meeting at 6:30pm in the Assembly Chambers B) Abbreviated & Final Approvals - Subdivisions C) Minutes of Other Meetings • March 12, 2013 Parks & Recreation Committee • April 9, 2013 Parks & Recreation Committee • May 14, 2013 Parks & Recreation Committee • May 28, 2013 Parks & Recreation Committee • August 27, 2013 Parks & Recreation Committee CHAIR TORRES read the Code Revision meeting dates: • September 25, 2013 Planning & Zoning Code Revision Work Session to review Draft Title 17-Zoning at 6:30 p.m. in the KIB Downstairs School District Conference Room #116 • October 2, 2013 Planning & Zoning Code Revision Work Session to review Draft Title 16-Borough Real Property at 6:30 p.m. at the RIB Conference Room. • October 9, 2013 Planning & Zoning Packet Review & Code Revision Work Session to review Draft Code Revisions at 6:30 p.m. in the KIB Downstairs Conference Room. • October 23, 2013 Planning & Zoning Code Revision Work Session to review Draft Code Revisions at 6:30 p.m.at the (to be determined). • October 30, 2013 Planning & Zoning Code Revision Work Session to review Draft Code Revisions at 6:30 pm in the K1B Conference Room. Pederson stated the Parks & Recreation Committee is continuing to work on Trail Management Objectives for Jack & Lee Lakes. (inaudible) Losing the GIS Analyst may have some ripple effects in the maps and agendas and ability to produce map products. COMMISSIONER VAHL MOVED to accept reports as presented. VOICE VOTE ON MOTION CARRIED UNANIMOUSLY AUDIENCE COMMENTS None. COMMISSIONER'S COMMENTS COMMISSIONER DRABEK said she won't be at next week's Code Revision meeting due to being off island. COMMISSIONER RICHCREEK said she will be off island on October 16th and 23rd and will miss next month's regular meeting. She appreciates the Community Development Department work put into the Code Revisions and we have a unique community which you can't cookie cutter these kinds of things to have it be applicable to us. She also hopes to see a lot of public participation. 9/18/2013 P&Z Minutes Page 5 of 6 CHAIR TORRES said regarding the rezone case he was surprised that the applicant thinks there's a dispute on the recorded property lines but he thinks Maschmedt was misspoken but he's guessing. COMMISSIONER DRABEK also stated she cannot express how dismaying it is to call Sheila Smith and still, she can get a step further to leave a message, it even attaches her voice saying you've reached her voicemail but then it completes with not allowing you to leave a message and telling you it is an invalid number. Pederson said he's tried it twice from outside lines and has had no problem and he's had IT staff call from outside lines with no problem leaving a message. Sheila Smith said it doesn't happen every time someone calls but we've had quite a few people complain about the same problem for a few years now. CHAIR TORRES said he's had the same problem also. CHAIR TORRES said next month is AML and is there anything on AML this year. Pederson said that's a good question. He will look into it to see what opportunities are available. We'll check into this and see what the budget is. Smith said yes, there is. I have received some information. ADJOURNMENT COMMISSIONER DRABEK MOVED to adjourn. VOICE VOTE ON MOTION CHAIR TORRES adjourned the meeting at 7:14p.m. KODIAK ISLAND BOROUGH PLANNING &ZONING COMMISSION B . Alan Torres, Chair ATTEST By: s j' =-'n= Sheila Smith Community Development Department APPROVED: October 16, 2013 9/18/2013 P&Z Minutes Page 6 of 6