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2018-07-19 Regular MeetingKODIAK ISLAND BOROUGH Assembly Regular Meeting July 19, 2018 A regular meeting of the Kodiak Island Borough Assembly was held on July 19, 2018, in the Assembly Chambers of the Kodiak Island Borough Building, 710 Mill Bay Road. The meeting was called to order at 6:30 p.m. The invocation was given by Major David Davis of the Salvation Army. Mayor Rohrer led the Pledge of Allegiance. Present were Assembly members Kyle Crow, Andrew Schroeder, Rebecca Skinner, Scott Smiley, and Dennis Symmons. Also present were Borough Manager Michael Powers, Borough Clerk Nova Javier, and Assistant Clerk Karen Siador. SMILEY moved to excuse Mayor Rohrer, Assembly members Kavanaugh, and Van Daele who were absent due to personal leave. VOICE VOTE ON MOTION CARRIED UNANIMOUSLY. APPROVAL OF AGENDA AND CONSENT AGENDA SMILEY moved to approve the agenda and the consent agenda. VOICE VOTE ON MOTION CARRIED UNANIMOUSLY. *APPROVAL OF MINUTES *Special Meetings of May 10 And May 31, 2018; and Regular Meeting Minutes Of June 7, June 21, And July 5, 2018. CITIZENS' COMMENTS (Limited To Three Minutes Per Speaker) Paul VanDVke, Fire Protection Area No.1 Chairman spoke in regard to Contract No. FY2018-32. Diane Murphy gave public comments regarding fireworks. Judi Kidder spoke regarding Ordinance No. FY2019-05 and echoed the previous citizen's comments regarding fireworks. Jeff Stewart spoke regarding Resolution No. FY2019-07. AWARDS AND PRESENTATIONS — None. Kodiak Island Borough Assembly Regular Meeting Minutes July 19, 2018 Page 1 of 12 COMMITTEE REPORTS Scott Arndt reported on Planning and Zoning Commission and Service Area District No.1 activities. PUBLIC HEARING 1. State of Alaska Alcohol and Marijuana Control Office Liquor License Transfer of Controlling Interest for Tony's Bar (License #1155). CROW moved to voice non -protest to the liquor license transfer of controlling interest for Tony's Bar. This application is for a liquor license transfer of controlling interest for License #1155, Tony's Bar which is located at 518 Marine Way Kodiak. 199 Public Hearing Notices were sent out for this transfer. A transfer of controlling interest is where the controlling interest of the entity has changed. In this case, one of the owners is transferring 7% of the ownership to a co-owner; therefore, making ownership between the two 50/50. The only options available in Title 5.01 to treat liquor licenses are license renewals or new/transfer license. This license is not up for renewal and should be treated as a transfer or a new license. The Clerk's office followed the procedure in KIBC 5.01.030. Pursuant to KIBC 5.01.040, 198 public hearing notices were mailed to those landowners within 1,500 feet of the liquor store on June 27, 2018. This license is located within City Limits. Per AMCO, the Borough is noticed out of courtesy on matters regarding liquor licenses within the City and the City of Kodiak is the official "Noticed Local Governing Body." Though this is the case, we still followed the transfer liquor license procedures regardless if they are within the city limits. Any comments from the Borough will be submitted to AMCO. Deputy Presiding Officer Skinner opened the public hearing. Seeing and hearing none, Deputy Presiding Officer Skinner closed the public hearing. ROLL CALL VOTE ON THE MOTION CARRIED UNANIMOUSLY: Crow, Schroeder, Skinner, Smiley, and Symmons. 2. State of Alaska Alcohol and Marijuana Control Office Liquor License Transfer of Controlling Interest for Tony's Liquor (License #1156). Kodiak Island Borough Assembly Regular Meeting Minutes July 19, 2018 Page 2 of 12 CROW moved to voice non -protest to the liquor license transfer of controlling interest for Tony's Liquor. This application is for a liquor license transfer of controlling interest for License #1156, Tony's Liquor which is located at 518 Marine Way Kodiak. 199 Public Hearing Notices were sent out for this transfer. A transfer of controlling interest is where the controlling interest of the entity has changed. In this case, one of the owners is transferring 7% of the ownership to a co-owner; therefore, making ownership between the two 50/50. The only options available in Title 5.01 to treat liquor licenses are license renewals or new/transfer license. This license is not up for renewal and should be treated as a transfer or a new license; therefore, the Clerk's office followed the procedure in KIBC 5.01.030. Pursuant to KIBC 5.01.040, 198 public hearing notices were mailed to those landowners within 1,500 feet of the liquor store on June 27, 2018. This license is located within City Limits. Per AMCO, the Borough is noticed out of courtesy on matters regarding liquor licenses within the City and the City of Kodiak is the official "Noticed Local Governing Body." Though this is the case, we still followed the transfer liquor license procedures regardless if they are within the city limits. Any comments from the Borough will be submitted to AMCO. Deputy Presiding Officer Skinner opened the public hearing. Seeing and hearing none, Deputy Presiding Officer Skinner closed the public hearing. ROLL CALL VOTE ON THE MOTION CARRIED UNANIMOUSLY: Schroeder, Skinner, Smiley, Symmons, and Crow. 3. Ordinance No. FY2018-07 Rezoning Lot 4, Block 19, Tract A, Larsen Bay Subdivision From R1 -Single -Family Residential District To B -Business District (P&Z Case No. 17-030). SMILEY moved to adopt Ordinance No. FY2018-07. 93 public Hearing Notices were mailed out on June 8, 2018. Notifications were sent to the City of Larsen Bay, other Cities/Villages, and to the Rural Leadership Forum. Clerk's historical note: Votes on 05/03/2018Ayes: Kavanaugh, Schroeder, and Smiley Kodiak Island Borough Assembly Regular Meeting Minutes July 19, 2018 Page 3 of 12 No: Crow (It takes a majority vote of the authorized members for a motion to carry (four members). Since this ordinance has not failed two times in a row, the Assembly requested that it be reintroduced on May 17, 2018. KIBC 2.30.070 (0) states "the same motion that receives the same outcome two meetings in a row shall not be revisited for six months unless the members by a majority vote agree to do so." Notifications regarding the reintroduction of this ordinance sent by mail and email to Mr. Munson. Mail, Email, and phone call notifications sent to Larsen Bay Clerk. Response received that notification will be forwarded to council members. Notifications were also sent to other cities and villages and to the Kodiak Rural Leadership Forum. ORIGINAL AGENDA STATEMENT This rezone request is the result of a substantiated complaint regarding the operation of a commercial lodge on an R1 -Single-family Residential zoned lot in the City of Larsen Bay (a prohibited use in that zoning district). A commercial lodge (Foxtail Lodge) has operated on the subject lot since 2000. The applicant desires to continue the lodge operation. To legally do so, the existing lodge must be brought into compliance with the requirements of Title 17 (Zoning) of the Borough code by rezoning the lot to a district that permits such use. Lodges have been determined to be a permitted use in B -Business zoning. B -Business zoning is also consistent with the Commercial Future Land Use Designation assigned to the lot and various objectives of the adopted Comprehensive Plan. Accordingly, a rezone to B -Business is requested. The Planning and Zoning Commission held a public hearing on this rezone request at their June 21, 2017 regular meeting. The Commission voted unanimously to recommend that the Assembly approve this rezone. Deputy Presiding Officer Skinner opened the public hearing. Seeing and hearing none, Deputy Presiding Officer Skinner closed the public hearing. ROLL CALL VOTE ON THE MOTION FAILED THREE TO TWO: Skinner, Smiley, and Schroeder (AYES); Symmons and Crow (NOES). 4. Ordinance No. FY2019-02 Amending The 2008 Comprehensive Plan By Changing The Future Land Use Designation Of Lots 2-4, Block 3, Tract A, Larsen Bay Subdivision From Residential To Mixed Commercial/WaterfrondResidential (P8Z Case No. 17-025). Kodiak Island Borough Assembly Regular Meeting Minutes July 19, 2018 Page 4 of 12 SMILEY moved to adopt Ordinance No. FY2019-02. At the April 19, 2017 P&Z Regular Meeting, the Commission, after hearing eleven (11) citizens provide public comment in opposition of this Comprehensive Plan amendment, postponed the amendment and corresponding rezone to the June 21, 2017 Regular Meeting. The Commission also directed staff to provide public hearing notices to all property owners within the City of Larsen Bay. The increased notice was to solicit additional input prior to the Commission rendering a decision on the requests. The resultant additional public comment (all opposing approval of the request) was provided in the June 21, 2017 Regular Meeting information packet (included in this packet). At that meeting, the Commission unanimously voted to divide the question by separating Lot 1A (the parcel developed with a longstanding lodge) from Lots 2, 3, and 4 (parcels intended for lodge expansion). The Commission then unanimously voted to recommend that the Kodiak Island Borough Assembly approve the Comprehensive Plan amendment for Lot 1A. Following that vote, the Commission unanimously voted to postpone the request as it applied to Lots 2, 3, and 4 to the April 2018 Regular Meeting. The corresponding rezone request for these same lots (Case No. 17-026) were addressed in an identical manner. The postponements were intended to accommodate the most current community input by allowing staff to coordinate with the City of Larsen Bay to facilitate an update of the Larsen Bay annex to the 2008 Comprehensive Plan. It is important to note that the Assembly postponed its final decision on the Comprehensive Plan amendment and rezone for Lot 1A to the May 03, 2018 Regular Meeting for that same reason. At the May 03, 2018 Regular Meeting, the Assembly approved the Comprehensive Plan amendment and the rezone for Lot 1A. At the April 11, 2018 P&Z Work Session, staff recommended that the Commission postpone the request for another month to their May 16, 2018 Regular Meeting. The postponement was recommended due to public hearing notices not being mailed to all property owners within the City of Larsen Bay (as previously directed by the Commission). Because the April 18, 2018 Regular Meeting was cancelled due to a lack of quorum, the cancellation resulted in the request being automatically postponed to the May 16, 2018 Regular Meeting (as was recommended by staff). Public hearing notices for that meeting were mailed to all property owners within the City of Larsen Bay. After the public hearing on May 16, 2018, P&Z voted 5-0 to forward the Comprehensive Plan amendment to the Assembly with a recommendation of approval. Deputy Presiding Officer Skinner opened the public hearing. Seeing and hearing none, Deputy Presiding Officer Skinner closed the public hearing. Kodiak Island Borough Assembly Regular Meeting Minutes July 19, 2018 Page 5 of 12 ROLL CALL VOTE ON THE MOTION FAILED TWO TO THREE: Smiley and Schroeder (AYES); Symmons, Crow, and Skinner, (NOES). 5. Ordinance No. FY2019-03 Rezoning Lots 2-4, Block 3, Tract A, Larsen Bay Subdivision From R1 -Single -Family Residential District To B -Business District (P&Z Case No. 17-026). SMILEY moved to adopt Ordinance No. FY2019-03. 90 Public hearing notices were sent out on July 6, 2018. Email Notices regarding this item were also sent out to the Cities/Villages and the Rural Leadership Forum. This rezone request corresponds with the preceding Comprehensive Plan amendment request (Ordinance No. FY2019-02) and the discussion and analysis of that case applies to this rezone request. At the April 19, 2017 P&Z Regular Meeting, the Commission postponed the rezone request to the June 21, 2017 Regular Meeting. The Commission also directed staff to provide public hearing notices to all property owners within the City of Larsen Bay. The increased notice was to solicit additional input prior to the Commission rendering a decision on the requests. The resultant additional public comment (all opposing approval of the request) was provided in the June 21, 2017 Regular Meeting information packet (included in this packet). At that meeting, the Commission unanimously voted to divide the question by separating Lot 1A (the parcel developed with a longstanding lodge) from Lots 2, 3, and 4 (parcels intended for lodge expansion). The Commission then unanimously voted to recommend that the Kodiak Island Borough Assembly approve the rezone for Lot 1A. Following that vote, the Commission unanimously voted to postpone the request as it applied to Lots 2, 3, and 4 to the April 2018 Regular Meeting. The postponements were intended to accommodate the most current community input by allowing staff to coordinate with the City of Larsen Bay to facilitate an update of the Larsen Bay Annex to the 2008 Comprehensive Plan. It is important to note that the Borough Assembly postponed their final decision on the rezone for Lot 1A to their May 03, 2018 Regular Meeting for that same reason. At the April 11, 2018 Work Session, staff recommended that the Commission postpone the request to the May 16, 2018 Regular Meeting. The postponement was recommended due to public hearing notices not being mailed to all property owners within the City of Larsen Bay (as previously directed by the Commission). Because the April 18, 2018 Regular Meeting was cancelled due to a lack of quorum, the request was automatically postponed to the May 16, 2018 Regular Meeting (as was recommended by staff). Public hearing notices for that meeting were mailed to all property owners within the City of Larsen Bay. After the public hearing on May 16, 2018, P&Z voted 5-0 to forward the rezone request to the Assembly with a recommendation for approval. Kodiak Island Borough Assembly Regular Meeting Minutes July 19, 2018 Page 6 of 12 Deputy Presiding Officer Skinner opened the public hearing. Seeing and hearing none, Deputy Presiding Officer Skinner closed the public hearing. ROLL CALL VOTE ON THE MOTION FAILED UNANIMOUSLY: Symmons, Crow, Schroeder, Skinner, and Smiley. BOROUGH MANAGER'S REPORT Manager Powers reported on the following: • Worked on GAP analysis. • Continued to work on a personnel issue. • Worked on agenda items. • Undertook FEMA and OSHA training (online). • Met with staff regarding drainage issues. • Markham Case MESSAGES FROM THE BOROUGH MAYOR None. UNFINISHED BUSINESS 1. Contract No. FY2018-32 Approving a 55 -Year Lease to Fire Service Area 1 The motion is on the floor which is to "move to authorize the Manager to execute Contract FY2018-32." Historically the property that houses the Bayside Fire Department has been leased by Fire Service Area #1 (FSA1) from the Kodiak Island Borough (KIB). Throughout the years FPSA1 has made improvements to the lot including installation of a generator, utility shed, as well as numerous Fire Training apparatuses. The disposal by lease of this property was delayed after the Service Area 1 chairman purported that an accessory building on the property is owned by Service Area 1 and should not be disposed of by lease to Fire Service Area 1. The Bayside property has undergone iterative construction and facility expansion projects both on the Fire Hall itself and other outbuildings on the property, including a 2 -door utility building that currently houses Kodiak Island Search and Rescue equipment, vehicles, and other miscellaneous equipment. The utility building was constructed in 1986 and added by addendum to the Lakeside Subdivision Water and Sewer Expansion project, which installed water and sewer on Cliffside, Abercrombie, Parkside, and Otmeloi roads. It is unclear from construction plans what the need for the building was, but it has been speculated that the double -garage door building was necessary to house materials during construction. The utility building construction was a lump sum bid item, and was funded Kodiak Island Borough Assembly Regular Meeting Minutes July 19, 2018 Page 7 of 12 with the State of Alaska and Kodiak Housing Authority monies that paid for construction of the water and sewer expansion. The Borough is referenced as the owner in the building permit. In 1996, the voters of Service Area 1 opted to return water and sewer service management, maintenance and facility ownership to the City of Kodiak. The transfer of operation of the water and sewer facilities included "all capital assets" to the City of Kodiak. Staffs interpretation of the transfer is that the utility building located on the Bayside Fire Department lot was included in that transfer. Staff has been unable to recover documentation demonstrating that the City formally declined to take possession of the utility building. Since transfer of the water and sewer facilities to the City of Kodiak, the City has not occupied, used, requested, nor maintained the building. In absence of a formal document declining to take ownership, a strong case could be made for adverse possession of the building reverting ownership to Kodiak Island Borough. Regardless of origin, buildings constructed on Kodiak Island Borough parcels revert to Borough ownership upon expiration or breaking of the lease or agreement by which they are bound. No documentation has been recovered to substantiate the claim that this building is functionally owned by Service Area 1, nor the City of Kodiak. Staff opines that the utility building is owned outright by the Kodiak Island Borough and may legally be leased or disposed of as the Assembly sees fit. As part of consideration of the lease, the Assembly should deliberate the matter raised by Service Area 1 and provide clear direction regarding the matter. This contract is the next step in disposal of this property by lease. Planning and Zoning voted to dispose of this property by lease to Fire Service Area 1 in P&Z case no. 17-022. Kodiak Island Borough Assembly upheld that finding in Resolution No. FY2018-033. Approval of this resolution will place the signing and execution of a 55 -year lease in the Manager's office. SYMMONS stated that he was conflicted and asked to be excused. Deputy Presiding Officer SKINNER ruled that Assembly member Symmons was not conflicted and was not excused. CROW moved to postpone Contract No FY2018-32 to the next regular meeting of the Assembly. ROLL CALL VOTE TO POSTPONE CARRIED UNANIMOUSLY: Crow, Schroeder, Skinner, Smiley, and Symmons. NEW BUSINESS Contracts 1. Contract No. FY2019-04 Facility Fuel Oil and Highway Fuel For KIB Facilities and Vehicles Kodiak Island Borough Assembly Regular Meeting Minutes July 19, 2018 Page 8 of 12 SMILEY moved to authorize the manager to approve Contract FY2019-04 facility fuel oil and highway fuel for KIB facilities and vehicles. The Kodiak Island Borough School District in cooperation with the Kodiak Island Borough have advertised and received bids for the FY19 Heating Fuel and Highway Fuel. The bids include #1 and #2 Heating Fuel and #2 low sulfur equipment fuel. The completed bid packages have been received by the district and forwarded to the KIB staff for review and recommendation to the Assembly for consideration and approval. ROLL CALL VOTE ON THE MOTION CARRIED UNANIMOUSLY: Schroeder, Skinner, Smiley, Symmons, and Crow. Resolutions 1. Resolution No. FY2019-04 Authorizing The Manager To 'Opt -In' The Class Action Lawsuit Brought By Smith, Currie & Hancock, LLP, Against The Federal Government To Collect The Underpaid PILT Amounts For The Fiscal Years 2015-2017. SMILEY moved to approve Resolution No. FY2019-04. In 2008, Congress significantly amended the PILT statute by mandating full funding through 2014 and removing language that limited the federal governments' payment obligation to the amounts appropriated by Congress. Congress has never reinserted that language. For 2015- 17, because of insufficient appropriations, PILT recipients did not receive the full amount to which they were entitled under the PILT statute based on the U.S. Department of the Interior's full payment calculation. Kane County, Utah filed a lawsuit in the U.S. Court of Federal Claims, seeking to recover its own underpayments and the underpayments of a class made up of all other PILT recipients in those years. Several months ago, the Court ruled in Kane County's favor and certified the lawsuit as a class action. The Court also named Smith, Currie & Hancock, LLP, Kane County's lawyers, as Class Counsel to represent all members of the class. The Court ordered that an official Notice of these events be sent to each underpaid PILT recipient. The Notice explained that to participate in the class action lawsuit and collect the amounts due to us through the class action lawsuit, we must complete and submit a form "opting into" the lawsuit. If we do not submit the form, we will not be included in the class action lawsuit—and will not receive what would otherwise be our share of any monies recovered. On a June 19, 2018 conference call with Smith, Currie & Hancock, they the estimated percent of recovery would be 1.326% of the actual PILT payment received for the fiscal years 2015- 2017, less a pro -rata share of court approved legal fees. Kodiak Island Borough Assembly Regular Meeting Minutes July 19, 2018 Page 9 of 12 ROLL CALL VOTE ON THE MOTION CARRIED UNANIMOUSLY: Skinner, Smiley, Symmons, Crow, and Schroeder. 2. Resolution No. FY2019-05 Designating the Temporary Administrative Official During the Absence of the Borough Manager. CROW moved to adopt Resolution No. FY2019-05. In the event of an emergency, it is necessary to name a temporary administrative official to fill in the position of Borough Manager. This resolution will confirm the appointment of Dave Conrad as the temporary administrative official until a permanent one is assigned. ROLL CALL VOTE ON THE MOTION CARRIED UNANIMOUSLY: Smiley, Symmons, Crow, Schroeder, and Skinner. 3. Resolution No. FY2019-07 Forming a Consolidation Committee. SYMMONS moved to adopt Resolution No. FY2019-07. Review and discuss draft consolidation committee resolution(s)for creating a consolidation committee. Review and discuss draft consolidation committee resolution and work plan provided by staff. ROLL CALL VOTE ON THE MOTION CARRIED UNANIMOUSLY: Symmons, Crow, Schroeder, Skinner, and Smiley. Ordinances for Introduction None. Other Items 1. Approve the Hiring of the Selected Applicant as the Assessor at Range E82, Step J of the Salary Schedule and authorize Payment of Actual Moving Expenses Not to Exceed the Equivalent of One Month's Salary. CROW moved to approve the hiring of the selected applicant as the Assessor at Range E82, Step J of the salary range and authorize the reimbursement of moving expenses equivalent to one month's salary. Kodiak Island Borough Assembly Regular Meeting Minutes July 19, 2018 Page 10 of 12 The Assessor recently retired. Staff has conducted a recruitment and found an extremely well qualified applicant who has experience as an Assessor in Alaska as well as additional assessing experience with the State and a large municipality in Alaska. Further, the candidate has significant appraisal experience and training. The candidate also has experience in software conversion of appraisal and property tax billing. Lastly, the requested salary is within the budget set for the fiscal year and is low than the previous Assessor. The Manager has met with and negotiated with the candidate and the requested salary and moving expense are outside of the Manager's authority to grant. ROLL CALL VOTE ON THE MOTION CARRIED UNANIMOUSLY: Crow, Schroeder, Skinner, Smiley, and Symmons. CITIZENS' COMMENTS Paul VanDvke spoke regarding Contract No. FY2018-32. Jeff Stewart gave a public comment. ASSEMBLY MEMBERS' COMMENTS Assembly member Crow voiced his support for the Borough Manager to attend the Markham case. He also congratulated Sara Fraser for winning the Western Planner award. Spoke regarding fireworks, welcomed Phil Kovacs as the new Engineering and Facilities Director, and encourage the public to run for office in the upcoming Municipal Election Assembly member Smiley recognized the Board of Fish for their support for the Chignik Emergency Petition. Assembly member Symmons thanked the public and the staff who spoke during citizens comments. Assembly member Schroeder recognized Dave Conrad as the new temporary Administrative Official. He also spoke about the need to revisit the existing conflict of interest ordinance. Assembly member Skinner thanked the public and the staff who attended tonight's meeting. Announcements The next Assembly work session was scheduled on Thursday, July 26, 2018 at 6:30 p.m. in the School District Conference Room. The next regular meeting was scheduled on Thursday, August 2, 2018 at 6:30 p.m. in the Borough Assembly Chambers. The Notice of Public Meetings and assembly meeting agendas were available on the KIB website, posted on the KIB Facebook page, and are also posted at the library, Safeway, and Borough building. For those who do not have internet, you may call the Borough meeting notification line at 486-9315. The Candidacy packets for Assembly/School Board seats and Service Area Board seats were Kodiak Island Borough Assembly Regular Meeting Minutes July 19, 2018 Page 11 of 12 available online and in the Borough Clerk's Office. Please call 486-9310 for additional information. EXECUTIVE SESSION 1. Manager's Contract Negotiations, A Matter Which Might Include A Discussion That Could Potentially Prejudice The Reputation And Character Of The Manager. SCHROEDER moved to convene into executive session to discuss the Manager's Contract negotiations, a matter which might include a discussion of the reputation and character of the Manager. ROLL CALL VOTE ON THE MOTION CARRIED UNANIMOUSLY: Schroeder, Skinner, Smiley, Symmons and Crow. SCHROEDER moved to invite the Deputy Presiding Officer and Assembly into executive session. VOICE VOTE ON THE MOTION CARRIED UNANIMOUSLY. Deputy Presiding Officer Skinner recessed the regular meeting and convened the executive session at 8:56 p.m. Upon returning from the executive session at 9:08 p.m., Deputy Presiding Officer Skinner reconvened the regular meeting and announced that no action would be taken as result of the executive session. ADJOURNMENT SMILEY moved to adjourn the meeting. VOICE VOTE ON THE MOTION CARRIED UNANIMOUSLY. The meeting was adjourned at 9:08 p.m. ATTEST: ova M. Javier, MMC, Boron gh Clerk KOGDIAAKK ISLAND BOROUGH Daniel A. Rohrer, Mayor Approved on: August 16, 2018 Kodiak Island Borough Assembly Regular Meeting Minutes July 19, 2018 Page 12 of 12