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1993-03-17 Regular MeetingI. II. IV. KODIAK ISLAND BOROUGH PLANNING AND ZONING COMMISSION REGULAR MEETING - MARCH 17, 1993 MINUTES CALL TO ORDER The regular meeting of the Planning and Zoning Commission was called to order at 7:35 p.m. by Chair Jody Hodgins on March 17, 1993 in the Borough Assembly Chambers. ROLL CALL Commissioners Present: Others Present: Jody Hodgins, Chair Linda Freed, Director Jon Aspgren Community Development Dept. Tuck Bonney Duane Dvorak, Associate Planner Jerrol Friend Community Development Dept. Clay Koplin Eileen Probasco, Secretary Tom Peterson Community Development Dept. Pat Szabo Commissioners Absent: None A quorum was established. APPROVAL OF AGENDA Staff reported the following changes to the agenda: ADDITIONS: IX COMMUNICATIONS A) Letter dated February 23, 1993 to Fred Ducolon from Bob Scholze RE: Required parking and reduction of seating capacity at Lots 25A & 26A, Airpark Subdivision (Don Jose's Restaurant). B) FAX dated March 4, Kinnear RE: New Survey 444). DELETIONS: X. REPORTS 1993 to Linda Freed from Kathryn construction on Alder Lane (U.S. COMMISSIONER ASPGREN MOVED TO ACCEPT the agenda with the changes reported by staff. The motion was seconded and CARRIED by unanimous voice vote. MINUTES OF PREVIOUS MEETING KIBS227848 P & Z Minutes: March 17, 1993 Page 1 of 13 COMMISSIONER FRIEND MOVED TO ACCEPT the minutes of the January 20, 1993 Planning and Zoning Commission regular meeting as presented. The motion was seconded and CARRIED by unanimous voice vote. COMMISSIONER SZABO MOVED TO ACCEPT the minutes of the February 17, 1993 Planning and Zoning Commission regular meeting as presented. The motion was seconded and CARRIED by unanimous voice vote. V. AUDIENCE COMMENTS AND APPEARANCE REQUESTS A) Case 93-013. Planning and Zoning Commission review and finding, pursuant to Section 17.57.050 (Off -Street Parking -- Location) of the Borough Code, that it is impractical to locate all the required parking spaces on Lot 18, Block 3, New Kodiak Subdivision, or on any contiguous lot, and permitting them to be located within six hundred feet of the principal building or use, on Tract N26 & N2913, City Tidelands (Postponed from the February 17, 1993 regular meeting). DUANE DVORAK reported that, due a clerical error, staff recommended postponement of this case to allow the applicant additional time to comply with Conditions of Approval suggested by the Commission at their February 17, 1993 regular meeting. COMMISSIONER PETERSON MOVED TO POSTPONE action on Case 93-013 until the April 21, 1993 regular meeting. The motion was seconded and CARRIED by unanimous roll call vote. There were no further audience comments or appearance requests. VI. PUBLIC HEARINGS A) Case 93-021. Request for a rezone, in accordance with Section 17.72.030C (Manner of Initiation) of the Borough Code, of a five (5) acre parcel of land located in T24S, R23W, and legally described as TL 1601, from C--Conservation to RD-- Rural Development. Generally located on the southeast shore of Muskomee Bay on Afognak Island. DUANE DVORAK indicated 7 public hearing notices were mailed for this case and none were returned. Staff recommended forwarding this request to the Borough Assembly with a recommendation of approval. Regular Session Closed. Public Hearing Opened: Seeing and hearing none. Public Hearing Closed. Regular Session Opened. KIBS227849 P & Z Minutes: March 17, 1993 Page 2 of 13 0 Z go COMMISSIONER SZABO MOVED TO RECOMMEND that the Kodiak Island Borough Assembly approve the rezone of Tax Lot 1601, within T24S, R23W, a five (5) acre parcel further described on the map dated March 17, 1993, located along the shore of Muskomee Bay, Afognak Island, from &-Conservation to RD--Rural Development; and to adopt the findings contained in the supplemental staff report dated March 17, 1993, as "Findings of Fact" for this case. 1. Findings as to the Need and Justification for a Change or Amendment. A rezone from C--Conservation to RD--Rural Development is needed and justified because the RD--Rural Development zoning district permits development that: A. is consistent with the type of development that people want to develop in remote areas of the Kodiak Island Borough; B. will not increase the nonconformity of any nonconforming uses or structures; C. is generally consistent with the provisions of the Kodiak Island Borough Coastal Management Program; 2. Findings as to the Effect a Change or Amendment would have on the Objectives of the Comprehensive Plan A change of zoning from C--Conservation to RD--Rural Development on Tax Lot 1601, within T24S, R23W, a five (5) acre parcel further described on the attached map dated May 17, 1993, located along the shore of Muskomee Bay, Afognak Island, is generally consistent with the applicable policies of the Kodiak Island Borough Coastal Management Program. The parcel is located in the Development with Restrictions district of the KIB Coastal Management Program. A conditional use permit is required prior to commercial development of a large scale lodge operation the RD--Rural Development zone. This will allow the placement of stipulations on future permit requests or approvals subject to Commission review. This will ensure consistency with the policies of the Kodiak Island Borough Coastal Management Program. The motion was seconded and CARRIED by unanimous roll call vote. B) Case 93-017. Request for a rezone, in accordance with Section 17.72.030C (Manner of Initiation) of the Borough Code, of U.S. Survey 1450, consisting of 25.33 acres of land, from C-- Conservation to RD--Rural Development. Generally located along the northwest shore of Portage Bay on the Alaska Peninsula. KIBS227850 P & Z Minutes: March 17, 1993 Page 3 of 13 �u DUANE DVORAK indicated 8 public hearing notices were mailed for this case and 1 was returned, stating non -objection to this request. Staff recommended forwarding this request to the Borough Assembly with a recommendation of approval. Regular Session Closed. Public Hearing Opened: Jeffrey Knauff, applicant, appeared before the Commission to answer questions and to express support for this request. Public Hearing Closed. Regular Session Opened. COMMISSIONER KOPLIN MOVED TO RECOMMEND that the Kodiak Island Borough Assembly approve the rezone of U.S. Survey 1450, a 25.33 acre parcel of land located at the head of Portage Bay, on the west side of Shelikof Strait on the Alaska Peninsula, from C--Conservation to RD--Rural Development; and to adopt the findings contained in the staff report dated March 12, 1993, as "Findings of Fact" for this case. 1. Findings as to the Need and Justification for a Change or Amendment. A rezone of U.S. Survey 1450 from C--Conservation to RD--Rural Development is needed and justified because the RD--Rural Development zoning district permits development that: A. is consistent with the type of development that people tend to develop in uplandd areas of the Kodiak Island Borough; B. will not increase the nonconformity of any existing nonconforming uses or structures; C. is generally consistent with the provisions of the Bristol Bay Coastal Management Program; 2. Findings as to the Effect a Change or Amendment would have on the Objectives of the Comprehensive Plan A change of zoning from C--Conservation to RD--Rural Development on U.S. Survey 1450, a 25.33 acre tract located in Portage Bay on the Alaska Peninsula, is generally consistent with the applicable policies of the Bristol Bay Coastal Management Program. The tract is not located in an area constrained for Development. A CUP is required prior to development of a large scale hunting and fishing lodge operation. This will allow the placement of stipulations on future permit requests or approvals subject to Planning and Zoning Commission review. This will ensure consistency with the policies of the Bristol Bay Coastal Management Program. The motion was seconded. KIBS227851 P & Z Minutes: March 17, 1993 Page 4 of 13 I COMMISSIONER KOPLIN expressed a concern about the identification and protection of archaeological resources prior to further development on this site. Staff addressed the concerns based on interpretation of the Bristol Bay Coastal Management Program, the Kodiak Island Borough Coastal Management Program, and other State and federal government regulations dealing with archaeological resources. The question was called and the MOTION CARRIED by unanimous roll call vote. C) Case 93-018. Request for a rezone, in accordance with Section 17.72.030C (Manner of Initiation) of the Borough Code, of U.S. Survey 50, consisting of 29.10 acres of land, from C-- Conservation to RD--Rural Development. Generally located in Snug Harbor, along the west shore of Moser Bay, on Kodiak Island. DUANE DVORAK indicated 17 public hearing notices were mailed for this case and none were returned. Staff recommended forwarding this request to the Borough Assembly with a recommendation of approval. Regular Session Closed. Public Hearing Opened: Rhonda Ellingson, applicant, appeared before the Commission to answer questions and to express support for this request. Public Hearing Closed. Regular Session Opened. COMMISSIONER ASPGREN MOVED TO RECOMMEND that the Kodiak Island Borough Assembly approve the rezone of U.S. Survey 50, a 29.10 acre parcel of land located in Snug Harbor along the west shore of Moser Bay, from C-- Conservation to RD--Rural Development; and to adopt the findings contained in the staff report dated March 9, 1993, as "Findings of Fact" for this case. 1. Findings as to the Need and Justification for a Change or Amendment. A rezone from C--Conservation to RD--Rural Development is needed and justified because the RD--Rural — Development zoning district permits development that: A. is consistent with the type of development that people want to develop in remote upland areas of the Kodiak Island Borough; B. will not increase the nonconformity of any nonconforming uses or structures; KIBS227852 P & Z Minutes: March 17. 1993 Page 5 of 13 I 11 C. is generally consistent with the provisions of the Kodiak Island Borough Coastal Management Program; 2. Findings as to the Effect a Change or Amendment would have on the Objectives of the Comprehensive Plan A change of zoning from C--Conservation to RD--Rural Development on U.S. Survey 50, a 29.10 acre tract located along Snug Harbor, on the West side of Moser Bay, is generally consistent with the applicable policies of the Kodiak Island Borough Coastal Management Program. The upland area of the tract is located in the Development with Restrictions district. The stream crossing the lot is located in the Conservation district of the KIB Coastal Management Program and can only be developed with approval from the Alaska Department of Fish and Game. A conditional use permit is required prior to commercial development of a large scale lodge operation the RD--Rural Development zone. This will allow the placement of stipulations on future permit requests or approvals subject to Commission review. This will ensure consistency with the policies of the Kodiak Island Borough Coastal Management Program. The motion was seconded and CARRIED by unanimous roll call vote. D) Case 93-019. Request for a rezone, in accordance with Section 17.72.030C (Manner of Initiation) of the Borough Code, of Tract D, U.S. Survey 1420, consisting of 5.04 acres, from C-- Conservation to RD--Rural Development. Generally located in the northeast arm of Uganik Bay on the west side of Kodiak Island. DUANE DVORAK indicated 17 public hearing notices were mailed for this case and none were returned. Staff recommended forwarding this request to the Borough Assembly with a recommendation of approval. Regular Session Closed. Public Hearing Opened: Seeing and hearing none. Public Hearing Closed. Regular Session Opened. COMMISSIONER ASPGREN MOVED TO RECOMMEND that the Kodiak Island Borough Assembly approve the rezone of Tract D, U.S. Survey 1420, a 5.04 acre parcel of land located in Uganik Bay on the west side of Kodiak Island, from C-- Conservation to RD--Rural Development; and to adopt the findings contained in the staff report dated March 9, 1993, as "Findings of Fact" for this case. KIBS227853 P & Z Minutes: March 17, 1993 Page 6 of 13 a A I 1. Findings as to the Need and Justification for a Change or Amendment. A rezone of Tract D, U.S. Survey 1420 from C-- Conservation to RD--Rural Development is needed and justified because the RD--Rural Development zoning district permits development that: A. is consistent with the type of development that people want to develop in remote areas of the Kodiak Island Borough; B. will not increase the nonconformity of any nonconforming uses or structures; C. is generally consistent with the provisions of the Kodiak Island Borough Coastal Management Program; 2. Findings as to the Effect a Change or Amendment would have on the Objectives of the Comprehensive Plan. A change of zoning from C--Conservation to RD--Rural Development on Tract D, U.S. Survey 1420, a 5.04 acre tract located in the northeast arm of Uganik Bay, is generally consistent with the applicable policies of the Kodiak Island Borough Coastal Management Program. This tract is located in the area designated for Development with Restrictions. A conditional use permit is required prior to development of intensive commercial land uses. This will allow the placement of stipulations on future permit requests or approvals subject to Planning and Zoning Commission review. This will ensure consistency with the policies of the Kodiak Island Borough Coastal Management Program. The motion was seconded and CARRIED by unanimous roll call vote. E) Case 93-020. Request for a variance, from Section 17.20.040 to permit a single-family residence to encroach no more than 2' 4" into the required 10' sideyard setback on a corner lot in an R-3--Multi Family Residential Zoning District. Lots 3A & 313, Block 2, Allman Addition, 1216 Mill Bay Road. DUANE DVORAK indicated 25 public hearing notices were mailed for this case and 1 was returned, opposing this request. Staff recommended denial of this request. Regular Session Closed. Public Hearing Opened: Andy Lundquist appeared before the Commission and expressed support for this request. Gerald Markham, applicant, appeared before the Commission and expressed support for this request. KIBS227854 P & Z Minutes: March 17, 1993 Page 7 of 13 t r Bruce Garrett appeared before the Commission and expressed opposition to this request. Torino Furgione appeared before the Commission and expressed opposition to this request. David Colwell appeared before the Commission and expressed opposition to this request. Public Hearing Closed. Regular Session Opened. COMMISSIONER BONNEY MOVED TO GRANT a variance, from Section 17.20.040.13 to permit a single-family residence to encroach no more than 2' 4" into the required 10' sideyard setback on Lot 313, Block 2, Allman Addition. The motion was seconded and FAILED by unanimous roll call vote. COMMISSIONER FRIEND MOVED TO ADOPT the findings contained in the staff report dated February 26, 1993 as "Findings of Fact" for this case. FINDINGS OF FACT 1. Exceptional physical circumstances or conditions applicable to the property or intended use of development, which generally do not apply to other properties in the same land use district The exceptional physical conditions applicable to the property are the nonconforming lot area (2,009 square feet) and lot width (40'). Exceptional conditions sufficient to warrant the grant of a variance must arise from the physical conditions of the land itself which distinguishes it from other land in the general area. Lot 3B is flat with a very slight slope from Mill Bay Road towards Malutin lane. The lot is not unlike the other lots in the general area. Lot 3B is a corner lot, however, which further limits the developable area of the lot, due to a side setback of 10' along Malutin Lane. 2. Strict application of the zoning ordinances would result in practical difficulties or unnecessary hardships Strict application of the zoning ordinance requires the removal of a portion of the structure to meet the requirements of Section 17.20.040.13 (Yards) of the Borough Code. This provision requires a 10' side setback along Malutin Lane. According to the applicant, this would result in practical difficulties because the portion of the structure that encroaches the setback contains the bathroom facilities and plumbing facilities that serve the entire structure. These facilities cannot be easily or inexpensively moved to a new location within the existing structure. KIBS227855 P & Z Minutes: March 17, 1993 Page 8 of 13 J 1 F T Justification for a variance is based on an exceptional condition arising from some natural condition of the lot. The purpose of a variance is to prevent land use regulations from becoming a confiscation or taking of property where an exceptional condition of land exists. A variance is justified when the denial of a variance will leave the property owner with no other reasonable use of the property or that no reasonable return can be made on the property. Variances are not meant to ensure against financial disappointments. If a condition of financial suffering is sufficient to justify a variance, then most developers will qualify for variances and the public interest will yield to the private interest and the maximization of profits. Similarly, evidence only showing that the applicant would benefit if relieved of the land use restriction is not justification for a variance. Alaska Statute 29.40.040(b) provides in pertinent part: A variance... may not be granted... solely to relieve pecuniary hardship or inconvenience. 3. The granting of the variance will not result in material damages or prejudice to other properties in the vicinity nor be detrimental to the public's health safety and welfare. The granting of the variance will not result in material damages or prejudice to other properties in the vicinity. This is because the area is an older area of town where there are many nonconforming structures that also deviate from the setback requirements of the Borough Code. This dwelling will meet all other zoning requirements including the required off-street parking (3 spaces Q 9' X 18', as shown on the site plan attached). The purpose of the enlarged 10' side setback is to provide for a clear sight distance for vehicles approaching the adjoining intersection. This is important because the structure can be placed less than 25' from the front lot line due to setback averaging. The setback average for Lot 313 is 20.5'. Parked vehicles and the building encroachment will reduce the sight distance at the intersection of Malutin Lane. This will be detrimental to public safety due to the narrow 20' right-of-way width at the intersection. Reduced sight distance and visibility compounds the limitations of the narrow right-of-way due to inadequate traffic -lane separation and maneuvering room. 4. The granting of the variance will not be contrary to the objectives of the Comprehensive Plan The variance will be contrary to the objectives of the comprehensive plan that identifies this area for Public and Open Space (Central School District Reserve). It is clear from Borough records, however, that this area is a P & Z Minutes: March 17. 1993 KIBS227856 Page 9 of 13 t K long established residential area and that the variance will not permit any land use inconsistent with the R3-- Multifamily Residential zoning district. 5. That actions of the applicant did not cause special conditions or financial hardship from which relief is r-- being sought by the variance. The actions of the applicant have caused the conditions from which relief is requested by variance. This is because the structure is already located on the Lot 3B. Title 29 and Borough Code prohibit the granting of a variance that is required as a result of the applicant's actions. Alaska Statute 29.40.040(b) provides in pertinent part: A variance... may not be granted if (1) special conditions that require the variance are caused by the person seeking the variance... According to the site plan submitted for Zoning Compliance Permit # CZ-92-093, the applicant was aware of the building envelope remaining after the setbacks of the R3--Multifamily Residential zoning district were calculated. The applicant said on the permit that a 14' X 24' foot structure would be placed on the lot in conformity with the setbacks shown on the site plan submitted. A variance is justified by a peculiarity arising out of some natural condition of the lot. An artificial condition of the lot is not relevant. A structure placed on the lot is an artificial condition, not a natural one. The applicant, for reasons explained in the application, has moved the structure to Lot 3B. The resulting encroachment is a violation of Borough Code. Artificial or self-imposed hardships cannot qualify for a variance without weakening the basis for zoning. If a property owner can develop improvements violating the Borough Code, then later obtain a variance to legitimize their actions, there is no reason for anyone to follow the requirements of the Code. Granting the variance, regardless of the motivations of the applicant or the apparently minor deviation from the setback, is simply not justified. To grant the variance would send a message to the public that would encourage future violations of the Borough Code. Substantial financial investment cannot persuade the Commission to grant a variance, after the fact, to legitimize artificially created conditions that violate Borough Zoning Codes. 6. That the granting of the variance will not permit a prohibited land use in the district involved Single-family dwellings are a permitted use in all residential zoning districts. The variance will not permit KIBS227857 P & Z Minutes: March 17, 1993 Page 10 of 13 1 a another use to develop on Lot 3B, Block 2, Allman Addition. The lot is limited to Single-family residential use because the lot is a nonconforming lot of record. The MOTION was seconded and CARRIED by unanimous roll call vote. F) Case 593-006. Request for preliminary approval of a request to vacate a reservation contained in the Patent for U.S. Survey 304 "a roadway sixty (60) feet in width, parallel to the shoreline, as nearly as may be practicable, for the use of the public as a highway, and ingress and egress to the public on the waters of all streams, whether navigable or otherwise." Generally located near Harvester Island in Uyak Bay, on the west side of Kodiak Island. DUANE DVORAK indicated 10 public hearing notices were mailed for this case and 3 were returned, opposing this request. Staff recommended granting prelminary approval of this request, subject to conditions. Regular Session Closed. Public Hearing Opened: Leon Francisco, applicant, appeared before the Commission to answer questions and to express support for this request. Public Hearing Closed. Regular Session Opened. COMMISSIONER ASPGREN MOVED TO GRANT preliminary approval of the vacation of a reservation contained in the Patent for U.S. Survey 304, "a roadway sixty (60) feet in width, parallel to the shoreline, as nearly as may be practicable, for the use of the public as a highway, and ingress and egress to the public on the waters of all streams, whether navigable or otherwise", which is generally located near Harvester Island in Uyak Bay, on the west side of Kodiak Island, subject to the conditions of approval contained in the staff report dated March 9, 1993, and to adopt the findings contained in the staff report dated March 9, 1993, as "Findings of Fact" for this case. CONDITIONS OF APPROVAL 1. Show the location of the entire stream crossing U.S. Survey 304 on the final plat. 2. Clearly indicate the location of the tide heights on the final plat. 3. Clearly designate the reservations to be vacated on the final plat. 4. Vacation of the reservations on U.S. Survey 304 is subject to the approval of the Borough Assembly per Section 16.60.060 (Additional Approval Required) of the Borough Code. FINDINGS OF FACT KIBS227858 P & Z Minutes: March 17, 1993 Page 11 of 13 F E 1. This plat meets the minimum standards of survey accuracy and proper preparation of plats required in Title 16 of the Borough Code. 2. This plat meets all the requirements of Title 17 of the Borough Code. 3. This plat is generally consistent with adopted Borough plans and provides a subdivision of land that supports those plans. The motion was seconded and CARRIED by unanimous roll call vote. G) Case S93-005. Request for preliminary approval of the vacation of the park designation and corresponding restrictions on Lot 1, Block 7, Black Canyon Subdivision. Generally located along the northwest shore of Kalsin Bay, on Kodiak Island. DUANE DVORAK indicated 14 public hearing notices were mailed for this case and none were returned. Staff recommended approval of this request. Regular Session Closed. Public Hearing Opened: Seeing and hearing none. Public Hearing Closed. Regular Session Opened. COMMISSIONER SZABO MOVED TO GRANT preliminary approval of the vacation of the park designation and corresponding restrictions on Lot 1, Block 7, Black Canyon Subdivision, generally located along the northwest shore of Kalsin Bay, and to adopt the findings contained in the staff report dated March 9, 1993 as "Findings of Fact" for this case. FINDINGS OF FACT 1. This plat meets the minimum standards of survey accuracy and proper preparation of plats required in Title 16 of the Borough Code. 2. This plat meets all the requirements of Title 17 of the Borough Code. 3. This plat is generally consistent with adopted Borough plans and provides a subdivision of land that supports those plans. The motion was seconded and CARRIED by unanimous roll call vote. VII. OLD BUSINESS There was no old business. KIBS227859 P & Z Minutes: March 17, 1993 Page 12 of 13 I I VIII. NEW BUSINESS A) Repeal of Section 17.72.080 (Boundary Change - protest) and related provisions, of the Borough Code, due to inconsistency with AS 29.20.160(d). COMMISSIONER PETERSON MOVED TO RECOMMEND that the Assembly delete Section 17.72.080 (protest) and all corollary references, from Title 17 (Zoning) of the Borough Code and direct staff to prepare an ordinance for introduction by the Assembly on the next available Assembly agenda. The motion was seconded and CARRIED by unanimous voice vote. There was no further new business. IX. COMMUNICATIONS COMMISSIONER FRIEND MOVED TO ACKNOWLEDGE RECEIPT of items A and B of communications. The motion was seconded and CARRIED by unanimous voice vote. A) Letter dated February 23, 1993 to Fred Ducolon from Bob Scholze RE: Required parking and reduction of seating capacity at Lots 25A & 26A, Airpark Subdivision (Don Jose's Restaurant). B) FAX dated March 4, 1993 to Linda Freed from Kathryn Kinnear RE: New construction on Alder Lane (U.S. Survey 444). There were no further communications. X. REPORTS There were no reports. XI. AUDIENCE COMMENTS There were no audience comments. XII. COMMISSIONERS' COMMENTS XIII. ADJOURNMENT CHAIR HODGINS adjourned the meeting at 8:50 p.m. KODIAK ISLAND BOROUGH PLANNING AND ZONINGiCOMMISSION 11 f ATTEST By:z Eileen Probasco, Secretary Community Development Department DATE APPROVED: April 21, 1993 C---, Chair KIBS227860 P & Z Minutes: March 17, 1993 Page 13 of 13 1 N