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2015-04-15 Regular Meeting ................. ............................................. II I �.. . . III Kodiak Island Borough 1 �'ri w 20,15 Planning & Zoning Commission Minutes �, .,,... _ _ ,,,. """'If iC: .4;�N,.,U� IC i�..�N_Ir':If�pK'S OFFICE April 15,2015 6:30 p.m. in the Assembly Chambers CALL TO ORDER COMMISSIONER ARNDT called to order the April 15, 2015 regular meeting of the Planning and Zoning Commission at 6:33 p.m. PLEDGE OF ALLEGIANCE COMMISSIONER ARNDT led the pledge of allegiance. ROLL CALL Requested to be excused are Kathy Drabek, Jay Baldwin, and Maria Painter. Commissioners present was Alan Schmitt, Scott Arndt, Pat Olsen, and Greg Spalinger. Excused was Kathy Drabek, Jay Baldwin, and Maria Painter. A quorum was established. Community Development Department staff present was Director Bob Pederson, Martin Lydick, and Sheila Smith. COMMISSIONER SCHMITT MOVED to excuse Kathy Drabek, Jay Baldwin, and Maria Painter. VOICE VOTE ON MOTION CARRIED UNANIMOUSLY APPROVAL OF AGENDA COMMISSIONER SCHMITT MOVED to approve the April 15, 2015 Planning & Zoning Commission agenda. VOICE VOTE ON MOTION CARRIED UNANIMOUSLY APPROVAL OF MINUTES COMMISSIONER SCHMITT MOVED to approve the minutes of the January 12, 2015 Code Update special meeting & the February 18, 2015 Planning &Zoning regular meeting. VOICE VOTE ON MOTION CARRIED UNANIMOUSLY CITIZEN COMMENTS Kyle Crow asked how and why is the Planning Department and Commission defying the law and routinely denying property owner's the right to place or construct minor structural developments within their private property setback spaces. The Kodiak Island Borough Zoning Code 17.160.020 defines what an accessory building is and the difference between an accessory building and a minor structural development, paragraph C states, Any structure, regardless of type of foundation or base support, including skid-mounted or other movable structure, that also requires a building permit for construction (for example, structures where the projected roof area exceeds 120 square feet). A minor structural development does not require a building permit is not regulated by this chapter. Building permits are administered by the City of Kodiak Building Department in accordance with Kodiak Island Borough Code Chapter 15.10.010 adoption of building and other codes. The city and borough both use the International Building Code as a mandatory reference document, Section RAOS2 of the IBC defines exemptions from permit requirements for residential construction, this section states that a building permit is not required for 1 story detached accessory structures used as tool and storage shed, playhouses and similar uses provided the floor area does not exceed 200 sq. 4/15/2015 Planning and Zoning Regular Meeting Minutes Page 1 of 8 feet. Title 17.150.A.2 states that minor structural development does not require a building permit or if less than 30 inches above finish grade. Crow gave examples of minor structural development that are permitted and stated they are in the Table in 17.150.040 and this table provides a heading title called Minor Structural Development with 3 sub-columns The written code defines what a minor structural development is and it states a minor structural development does not require a building permit, is not regulated by this chapter, and further states that minor structural development does not require a building permit. The example table only serves to confuse the issue by listing accessory buildings under the minor structural development column. The Community Development Department and Planning and Zoning Commission appear to have arbitrarily chosen to ignore the definition and language of the code in favor of the example table and consequently they are incorrectly or unfairly and perhaps illegally denying property owner's for exercising their legal rights. PUBLIC HEARINGS A) Case 15-014 (Postponed at the 2/18/2016 Regular Meeting). Request a Variance to construct an accessory building that will encroach 5 feet into the required 10 foot rear yard setback on Lot 4, Powell Estates Subdivision (KIBC 17.195, 17.160.060, and 17.86.040.C). The applicant is Gary E. Salter and the agent is Ryan Sharratt. The location is 3534 Sharatin Road and the zoning is R3-Multi-family Residential. Director Pederson stated he wanted to pass out an aerial photo with the topography overlay. Martin Lydick reported this variance request is for the purpose of constructing a 400 sq. foot residential accessory storage building and locating it within the required 10 foot rear yard setback. The applicant's argument is that topography is a limitation that restricts the development potential of the lot and creates a hardship; but then proposes to utilize that same topographical feature for development. The applicant has not demonstrated that he meets the criteria for a grant of variance under state law or the applicable Kodiak Island Borough Code. The department is recommending denial. In response to COMMISSIONER SCHMITT'S inquiry if the aerial photo was done in GIS, Lydick stated yes. COMMISSIONER SCHMITT MOVED to grant a variance to construct an accessory building that will encroach 5 feet into the required 10 foot rear yard setback on Lot 4, Powell Estates Subdivision (KIBC 17.195, 17.160.060, and 17.85.040.C). Close regular meeting &open public hearing: Kyle Crow stated when he read the packet online he sees it as an abuse again by the Planning and Zoning Department and their determination and findings of fact. The accessory structure will be built according to strict International Building Codes that will cover the department's structural/engineering concerns. If you read the table in the code it says that these kinds of structures are allowed within the rear yard setback. It confuses and concerns him that the Planning and Zoning Department's determinations and recommendations that these kinds of things be denied. The property owner is going to build it responsibly with setbacks but it's not the entire setback in the rear yard. You have heard from the public recently that we would like to see a friendlier Planning and Zoning Department and some friendlier property owner (inaudible) determinations from the commission. He implores that the commission listen to the public and respect the property owner's rights in this case. In response to COMMISSIONER SCHMITT'S inquiry of didn't you say that this wasn't a minor building and it's an accessory building, Crow stated it is an accessory structure, it is not exempt by the building codes, under these sections that he referenced earlier, the definition, it does not meet the definition of a minor structural development, it does meet the definition of an accessory building. 4/15/2015 Planning and'Zoning Regular Meeting Mlinutes Page 2 of 8 Chaz(Charles) Glagolich stated he's very familiar with the Salter property. He helped to build Salter's porch at which time it was taken into consideration that a storage shed would go where it's proposed to go. He can't find any justification for not allowing the variance. Gary Salter, applicant, stated he received an initial response from the Community Development Department recommending denial of his variance request. This variance does not impact or create a hazard to the edge of his property. There is no fire hazard as it's been stated. There is no useable right of way or easement impacted due to this construction. There is no impact on water flow, power lines, or sewer lines. There is no material damage or endangerment to the surrounding properties. The ocean view will not be blocked by this construction. To change the dimensions and layout of the building will have a substantial negative impact on the financial cost of this construction, costing him more money for rock fill for the foundation. This variance will allow him to maximize his property value that he pays taxes on without hindering, damaging, or endangering any other surrounding properties. There hasn't been one negative response from any surrounding property owner's. The granting of this request does not hinder or have a negative impact on the Kodiak Island Borough's Comprehensive Plan. As you can see by the pictures approximately 10% or less of one small corner of the building will actually be across the 10 foot setback. The corner of the building will be approximately 10— 12 feet from the slope that staff says he would have to drive pilings into to hold the corner of the building up. They were incorrect in that assessment. There is no impact on prohibited land use or wetlands. The building will be engineered by a licensed firm and built to code. This is a reasonable request. He encouraged the commission to reconsider staffs recommended denial of this request. In response to COMMISSIONER SCHMITT'S inquiry if Mr. Salter seen the 2 sketches in the packet from staff, Salter stated they are way off, they don't show where the building is going to align in accordance with the 10 foot setback line. They are showing way more of the building in the setback. In response to COMMISSIONER SCHMITT'S inquiry of did Salter see the 2 staff alternatives and what he thinks about them, Salter stated yes, he seen them but that is not what he wants to do. He made a reasonable request to construct an accessory building that would be square with his home and allow him to use 2 or 3 feet of the actual corner of the building into the setback. There's no pilings needed to go over the steep slope that drops 40 feet to the lower piece of property. In response to COMMISSIONER SPALINGER'S inquiry of what kind of foundation is Salter going to put in, Salter stated there will be 9 or 10 twelve inch solid tube pilings buried under approximately 5 feet of rock fill. Kyle Valerio stated he's a neighbor of the Salters. He's seen where the shed will go, and he's seen the alternatives. Salter wants to line this shed square with his house. Salter has the opportunity to build what he wants with a 3 or 4 foot hang on a corner. It's not going to be a fire hazard. There is support for this project. The commission should work with a community member who's going through the process of getting a permit. This is a reasonable request and he feels it should be granted. Ryan Sharratt, agent, stated he's one of 4 principles working for Nortec Engineering, they will provide professional oversight for this development. They will also be doing this pro Bono because of the dramatic Overreach that the Planning and Zoning Commission has had. Close public hearing & open regular meeting: In response to COMMISSIONER SCHMITT'S request for staff to respond to the information on Table 1 following 17.15.040 presented by Kyle Crow, Director Pederson stated he disagrees with Mr. Crow's assertion that we're defying the law in this case. We're following the code and Alaska Statutes clearly and consistently. Regarding the code question, Table 17.15.040.1, Table 1 clearly says that an accessory building or structures, which this is, this is not a minor 4/15/2015 Planning and Zoning Regular Meeting Minutes Page 3 of 8 structure and are not permitted in any setback by that table. Nowhere in the staff report did it say that he would be driving pilings. Pederson recommend the commission delete Finding of Fact#3, it was developed before they developed the topographic information that you have and was based on the applicant's statement in the application that the back area of the shed is a sheer wall cliff and no access or pathways are being blocked by this building. In response to COMMSSIONER OLSEN'S inquiry regarding the 1St alternative provided by staff it looks like the accessory building is not caddywampus to the dwelling, Director Pederson stated that's correct. The initial staff report talked about maybe not necessarily make the building rectangle and still get the square footage wanted. It wouldn't be square to the house but the conforming alternative A has it squared to the house it's just closer to the house and conforming alternative B rotates it to meet the setbacks. In response to COMMISSIONER SCHMITT'S inquiry of what is the distance between the new building and the rear deck on Alternative A, Pederson stated we didn't show that because we were working from the site plan that was submitted by the applicant that didn't turn out to be to scale. Martin Lydick, planner, stated the applicant didn't provide anything in the nature of a surveyed asbuilt for this so we started off taking their drawing as fact. He believes the rear yard deck shown on the drawing is not to scale. Lydick asked the question of how much room that leaves between the building and the deck portrayed in the drawing and staff indicated that scale is about 10 feet separation. Gary Salter clarified that on page 59 of 119 staff have the building space on the corner closest to the deck as 8 feet and it's not, it's 6 feet. You can imagine that whole thing coming 2 feet closer to the house which impacts the setback even less. It's still within the 5 foot setback on the side. The building is 400 sq. feet and there's 6 feet from the outside edge of the deck. He requested 5 feet but he probably only needs about 2 Y2 feet. Only one corner will be in the setback. Close public hearing & open regular meeting: Discussion COMMISSIONER SCHMITT MOVED to amend the motion to read Move to grant a variance to construct an accessory building that will encroach 2.5 feet into the required 10 foot rear yard setback on Lot 4, Powell Estates Subdivision. COMMISSIONER SCHMITT MOVED to amend the motion to grant a variance subject to one condition of approval to construct an accessory building that will encroach 2.5 feet into the rear yard setback on Lot 4, Powell Estates Subdivision. CONDITION OF APPROVAL 1. The applicant will be required to submit an asbuilt survey with conjunction with the zoning compliance and building permit. ROLL CALL VOTE ON MOTION TO AMEND CARRIED UNANIMOUSLY ROLL CALL VOTE ON MOTION TO AMEND CARRIED UNANIMOUSLY ROLL CALL VOTE ON MOTION AS AMENDED CARRIED UNANIMOUSLY COMMISSIONER SCHMITT MOVED TO POSTPONE the findings of fact until next month. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY B) Case 15-015 (Withdrawn by Applicant). Request a Title 18 Land Disposal review to consider disposal of approximately 4.300 acres of the Monashka Bay Watershed within T27S, R20W, Seward Meridian. The intent of this request is to transfer the ownership of 4/15/2015 Planning and Zoning Regullar Meeting Minutes Page 4 of 8 this land to the City of Kodiak. The applicant is the Kodiak Island Borough & City of Kodiak. The location is NHN, Monashka Reservoir and surrounding area within T27S, R20W, Seward Meridian. The zoning is W-Watershed. Director Pederson stated applicant requested to withdraw this case. OLD BUSINESS None NEW BUSINESS A) FY2016-2020 Capital Improvement Projects List Director Pederson stated we're going to research some of the Items. The borough feels you can delete Item 1-Landfill Lateral Expansion Phase 3 Wastewater Treatment Facility, Item 2-E911- staff is still researching, we need to make sure the commission has the right information, Item 4- Monashka Bay Utility Installation, Pederson has a note saying the language is different than what was on the Assembly Resolution last year, Item 13-Chiniak School Playground Equipment- this may be able to come off the list this year, some money has been awarded but the equipment hasn't been installed yet and there's another potential grant award that may provide some additional funding for that project. The borough manager feels we should have a discussion about the Otmeloi paving project, some money was there from a prior appropriation but there's still a gap in the funding. Brief discussion B) Tract R-2, Killarney Hills Subdivision -Master Plan Process Outline for Discussion Pederson stated there's no new information on this other than we are working up the similar map that was a topo on an aerial overlay, he will get both maps to you next month. Brief discussion C) Follow-up to March 12, 2015 Borough Assembly and Planning and Zoning Commission Joint Work Session. Discussion of possible code updates Director Pederson stated you are tasked with working on your lists to bring back to the next work session. We'll look at your lists and staff members are looking at the same information. We'll sit down and work through those. COMMISSIONER SCHMITT stated he provided a memo regarding the Code Update and he spoke about the process. It's in the memo that he may not have caught all the references in the Comp Plan so he encouraged anyone who has the interest or time to look at it to see if there are any others. The discussion as he recalls from last week is that we are sort of individually going to prepare our own lists of potential items for code revision based on the public hearing process that we had late last year and early this year. He thinks that's fine and appropriate but he tried to do some research to figure out how we got to where we ended up and as he mentioned he got on the commission in January 2011 and the process had already started at that point. He went online and did the research that he could and at the assembly's meeting on December 6's the assembly adopted what we now have as the Comprehensive Plan Update that makes various references to the need to revise the code and it's fairly clear from the minutes that the assembly actually spent some time looking at it because they made 3 amendments to the Comp Plan. Names that are still involved that participated then would be Assembly Member Jerrol Friend and Chris Lynch, they are the only ones that are still involved at the government level at this stage. Then what happened was, at least that he could find, July 15, 2410 the assembly approved a contract for professional services to update Title 16, 17, & 18. They don't make any reference in that motion or the discussion on how they went from the code update to hiring the consulting firm. It's his understanding and he would like it if someone could pin it down fairly specifically if there was ever any assembly action that they said yes, the code has so many 4/15/2015 Planning and Zoning Regular Meeting Minutes Page 5 of 8 references that we just need to do the whole code. How we went from the recommendations and the code update to completely rewriting the code is not clear from the record is the point he's trying to make. Again the assembly members Jerrol Friend and Chris Lynch participated in that decision. And then on October 1, 2010 the borough passed a resolution to appoint the Project Advisory Committee and that was after the consulting firm had been hired and then until the consulting of the PAC and then it came to us and we got involved, spent all our time we got to the vote that was made in February to just table it indefinitely. He thinks when we get to the point what he would like to see the commission do is adopt a resolution that sets out the history starting with the Comp Plan and then concluding with what the commission will collectively decide needs to be or should be the emphasis of any code revision efforts in that as he mentioned last week he thinks it needs to be in bites that we can manage in a 6 month or less timeframe, not drag it out over multiple years, and then get that to the assembly to have them adopt that. Basically, it would be an amendment to the Comp Plan so they would need to adopt that by ordinance so there's going to be a pretty clear record on what's going to be done and why. Now as to why he thinks it needs to get to the assembly by ordinance there's the State Statute 2940.040 that says in accordance with the Comprehensive Plan that has been adopted and in order to implement the plan the assembly by ordinance shall adopt or amend provisions governing the use and occupancy of land that may include but not limited to. Basically, the Comp Plan sets the guidelines for what we're supposed to be doing when it comes to land use planning and zoning regulations in the borough and we've got an existing Comp Plan that talks about doing some amendments and maybe, and he thinks likely some of those amendments is not time to do them or we need to revise them and based on the recent public hearings we need to come up with some new ones but we need to amend the Comp Plan and the borough assembly needs to adopt that. There were 2 decisions from the Alaska Supreme Court that had made it clear that in this one case the Supreme Court said that a borough cannot pass or amend a zoning ordinance without involving its planning commission in reviewing that ordinance this review place includes considering whether proposed ordinance is consistent with the Comp Plan, that's Griswold vs City of Homer 2008 case. Then there's another one where the court stated that the language in AS 29.40.040 requiring that zoning regulations be enacted in accordance with or in order to implement the Comp Plan requires the borough's zoning regulations must be consistent with a validly enacted plan and that's Lazy Mountain Land Club vs Matanuska/Susitna Borough from 1995. He thinks we need to have and for the benefit of the future as well a clear record of what we're doing and he wants and think there would be any changes we might make to the code or recommend because we can't make them, the assembly has to vote on them and approve them but if they come from us and the assembly does it and they are not tied back to the Comp Plan they're subject to being challenged in court. He wants to avoid future litigation for the borough. Director Pederson said COMMISSIONER SCHMITT is right about a lot of that and a lot of that was in the what you didn't see because we didn't get to that point, the adopting ordinance for the titles if they had gone forward and the recitals and the history and the link to the Comp Plan. The only thing he would slightly disagree with COMMISSIONER SCHMITT is if the PU is going to do a Camp Plan amendment and then forward that recommendation on to the assembly, that needs to be by ordinance as well rather than resolution. Regardless he thinks that's pretty consistent with what we talked about at the joint work session; the assembly wanted PU to go through the process we just talked about, prioritize them and then bring them back to the assembly so the assembly can take action so there is a clear direction for the record for folks to follow. COMMISSIONER ARNDT stated we also talked about at the work session staff putting together a list where we have had problems over the years. We also have the public testimony given through all the public hearings we've had and there will be more. One thing he will say is that on the Comp Plan like odor and some of that other stuff will not be addressed because enforcement is a nightmare and he's not in favor of taking on things that take more enforcement 4/15/2015 Planning and Zoning Regular Meeting Minutes Page 6 of 8 that we don't have control fiver. It will be moving on and we will have more discussion next month at the work session. COMMUNICATIONS A) February Planning and Zoning Case Results Letters B) Letter of Courtesy &Advisory dated March 9, 2015 COMMISSIONER SCHMITT MOVED to acknowledge receipt of the communications as presented. VOICE VOTE ON MOTION CARRIED UNANIMOUSLY REPORTS A) Meeting Schedule: • May 13, 2015 work session at 6:30pm in the KIB Conference Room • May 20, 2015 regular meeting at 6:30pm in the Assembly Chambers B) Abbreviated & Final Approvals- Subdivisions COMMISSIONER SCHMITT MOVED to acknowledge the reports as presented. VOICE VOTE ON MOTION CARRIED UNANIMOUSLY CITIZEN COMMENTS Betty McTavish stated she addressed the assembly concerning rumors about Woody Way Loop. That piece of property is used by many citizens within our community. She's had feedback from other individuals concerning the use of that property being put into residential. The schools, Little League, Relay for Life use that property. She would like to see that stay like it is and open to the public. It's a place where people can fly their airplanes and kites. You should really look at the value to the public, not just the revenue that can be brought in. The livability of our community is very important, especially for our youth; they need a place to go. That area has been very valuable within Parks and Rec Committee-both the borough and city. They've also brought forward a proposal concerning the development of that property for Parks and Recreation purposes for a playground, rest room facility, and upgrades to the fields. She requested the commission take their consideration into account. Kyle Crow stated he's reviewed the Comp Plan, specifically looking at the justification and the need to update the code. The need as referenced in these Planning and Zoning Variance Requests that the Comp Plan is or is not being abided by or followed. He searched the Comp Plan for the words "setbacks and buffers" and they were mentioned in about 2 or 3 places. In each case they referred to areas and zones between Industrial areas and residential areas that did not specifically talk about individual residential properties and those kinds of details. When he looks at the state law, it says the borough's powers authorizes and requires the borough to have land use planning and some control over land use but it doesn't specify specifically in detail how thorough that needs to be on individual properties. It doesn't give a license to the borough or Planning and Zoning Department to provide miniscule, little detailed regulations concerning everyone's properties. The Comp Plan does not do that either so he sees that both the State law and the Comp Plan is quite often referred to and referenced in these kinds of discussions that as it's used it demands we do this, this requires us to do that, no such thing is there. Concerning the update of the code, we've had (he thinks) a resolution by the commission that it be done so with respect to citizen's property rights and less government control. He hopes you will continue to consider that. He sat in the borough work session and he talked to some of the assembly members and as he understands it the citizen's would like to see the code amended so it eliminates some of these confusions about the table that we talked about 4/15/2015 Planning and Zoning Regular Meeting Minutes Page 7 of 8 earlier that neither lists prohibitions or approvals for structures to be within setbacks, and that table is a bit confusing. STAFF COMMENTS Director Pederson stated Martin Lydick will be retiring the end of May after some twenty-seven years with the borough. We wish him well in future endeavors. We will have a celebration and you'll be invited. COMMISSIONER COMMENTS Alan Schmitt stated he appreciates Ms. McTavish's comments and there should be available, agenda item 9-13 was the Woody Way Loop Planning Outline which has the history. The reason the commission is looking at this is because of the Borough Parks and Rec's making a motion and approving it and asking that the property be dedicated as a park, rezoned as Public Use but it has to come to the commission to for that to then go to the assembly so the commission has started this process and it's going to take a while to get input from people and to look at alternatives. It's not going to happen within the next month or two. We'll get input from as many people that we can and encourage the public to participate and tell us what they think. He lives in the area and he's also the P&Z rep on the Parks and Rec Committee. Schmitt welcomed Greg Spalinger. Greg Spalinger thanked everyone for the welcome, and he thanked everyone who showed up. Scott Arndt also welcomed Greg Spalinger to the commission. Arndt said as Schmitt stated regarding the Killarney Hills Subdivision Master Plan process, it's going to be involved and the idea is primarily to look at what all the options are and then look at getting some direction from the assembly. Realistically, we are looking at about a year. ADJOURNMENT COMMISSIONER SCHMITT MOVED to adjourn. VOICE VOTE ON MOTION CARRIED UNANIMOUSLY CHAIR ARNDT adjourned the meeting at 7:5p.m. KODIAK ISLAND BOROUGH PLANNING AND ONI G COVhPSSION By: 1. Scott Arndt, Chair ATTEST By: zxacirk'' �><fko Sheila Smith, Secretary Community Development Department APPROVED: June 17, 2015 4/15/2015 Planning and Zoning Regular Meeting Minutes Page 8 of 8