2007-02-21 Regular Meeting
KODIAK ISLAND BOROUGH
PLANNING AND ZONING COMMI
REGULAR MEETING FEBRUARY 21,2
MINUTES
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BOROUGH CLERK'S OFFICE
CALL TO ORDER
The regular meeting of the Planning and Zoning Commission was called to order at 7:30 p.m. by
CHAIR FRIEND on February 21,2007 in the Borough Assembly Chambers.
ROLL CALL
Commissioners
Present Excused
Absent Others Present
Martin Lydick, Planner
Community Development Dept.
Sheila Smith, Secretary
Community Development Dept.
Dave King - Chair
Brent Watkins
Gary Carver
Casey J anz
Bill Kersch
Gary Juenger
Vacant
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X
X
X
X
X
A quorum was established.
APPROVAL OF AGENDA
COMMISSIONER CARVER MOVED TO APPROVE the agenda as presented. The motion was
SECONDED by COMMISSIONER JANZ, and it CARRIED by unanimous voice vote.
APPROVAL OF MINUTES
COMMISSIONER JANZ MOVED TO APPROVE the minutes of January 17, 2007.
COMMISSIONER WATKINS SECONDED the motion, and it CARRIED by unanimous voice vote.
AUDIENCE COMMENTS AND APPEARANCE REQUESTS
There were no audience comments and appearance requests.
PUBLIC HEARINGS
A. Case 07-009. Request for a Variance, in accordance with KIBC 17.66, to permit the creation of one
3.15 acre lot and one 4.16 acre lot by subdivision which is less than five (5) acres oflot area not subject
to tidal action below the mean high tide, per KIBC 16.40.040.A.2, KIBC 16.40.050.B.l, and KIBC
17.13.050.A
Lydick reported this case comes back before the commission with supplemental information supplied
by the petitioner, principally a recalculation of the land area of the two lots proposed on the waterfront
portion of this proposed subdivision. The last time it was before the commission there was much
discussion regarding the true net dry land acreage of the proposed lots. The new calculations submitted
by the petitioner shows a considerable decrease in the size of the parcels not subject to tidal influence.
Staffs recommendation is to deny this request, especially in light of the fact that the petitioner does
have conforming alternatives.
COMMISSIONER CARVER MOVED TO GRANT a Variance; in accordance with KIBC 17.66, to
permit the creation of one 3.15 acre lot and 4.16 acre lot by subdivision in the C-Conservation zoning
February 21,2007
P & Z Commission Meeting Minutes
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district which will have less than five acres of lot area that is not subject to tidal action below the mean
high tide, per KIBC 16.40.A.2, KIBC 16.40.050.B.l, and KIBC 17.13.050.A. COMMISSIONER
WATKINS SECONDED the motion.
Regular session closed:
Public hearing open:
Public hearing closed:
Regular session open:
After discussion, it was the consensus that the Commission doesn't want to create more non-
conforming lots.
The question was called, and it FAILED 6-0.
COMMISSIONER CARVER MOVED TO ADOPT the findings in that staff report dated February
14,2007 as "Findings of Fact" for this case. COMMISSIONER JANZ SECONDED the motion.
FINDINGS OF FACT
17.66.050 A.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.
From the materials submitted staff did not observe any exceptional physical circumstances that would
distinguish this site from other lots in the C-Conservation area. The petitioner did not submit a plan of
development other than the preliminary plat itself, which seems to indicate that the variance requested
is a matter of convenience or a means to obtain maximum return on investment.
The petitioner indicates that the exceptional circumstance is the location of the Kizhuyak Drive right-
of-way which provides only 7.31 acres of area on the Settler Cove side of the road right-of-way. It
should be noted that this circumstance does not affect all of the lots proposed in the subdivision, only
the two lots proposed between the road right-of-way and the shoreline of Settler Cove.
17.66.050 A.2.Strict application of the zoning ordinances would result in practical difficulties or
unnecessary hardships.
The petitioner is indicating through this request that the strict application of the zoning ordinance (and
by implication subdivision ordinance) will result in practical difficulties or unnecessary hardships. The
result of the applicable zoning and subdivision code provisions would be to disallow the creations of
proposed Lots I and 2, Memory Estates Subdivision which would result in a single ;7.31 acre lot
instead. If relief cannot be obtained by variance, the subdivider will have to reduce the number of lots
in the subdivision from the requested six (6) lots down to five (5), assuming that the lot areas shown
are the net area after deduction of Kizhuyak Drive right-of-way.
The minimum lot area standards of the KIB zoning code are just that, a minimum standard. The C-
Conservation zoning district does not guarantee any subdivider a five acre lot minimum size or in any
way create an entitlement to subdivide down to the minimum size. While this is a variance case and
not a subdivision, the two codes must work hand in hand in this case. The minimum allowable lot size
should be whatever the Commission determines is minimally necessary to develop a "reasonable" use
of the land. In the C-Conservation zoning district, this means a lot that is reasonably suitable for the
development of the uses and structures permitted in KIBC 17.13.020 through 17.13.040, which
includes lodges, agricultural uses, commercial fishing sites, etc., in addition to single-family
residential.
As noted in the staff report dated November 6,2006, there are a number of conforming alternatives that
may still allow a reasonable use of the site and which will not deprive this property owner of rights
February 21, 2007
P & Z Commission Meeting Minutes
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enjoyed by other property owners in the same zoning district. Granting relief by variance in this case
would go beyond granting relief from practical difficulties or unnecessary hardship in that it is intended
that the provisions of the C-Conservation zone are intended to apply to all affected properties equally,
unless for some reason this would deprive the land owner of all reasonable use.
17.66.050 A.3.The granting of the variance will not result in material damages or preiudice to other
properties in the vicinity nor be detrimental to the public's health, safety and welfare.
It is unlikely that granting the variance in this case will result in material damage to other properties in
the vicinity. Other subdividers in the C-Conservation zone may feel prejudiced however if they have
explicitly complied with the applicable code sections by providing five (5) acres of developable area
after deductions for road right-of-way and tidal areas have been calculated by survey. This perception
of prejudice would also hold true for subdividers who have been required to create lots larger than five
acres to accommodate steep slopes, unsuitable soils conditions, drainages or additional area intended
solely to support on-site wells and septic systems, etc.
17.66.050 A.4.The granting of the variance will not be contrary to the obiectives of the Comprehensive
Plan.
The comprehensive plan does not address the desired development density in this area so it does not
appear that granting the variance will have any effect on the objectives of the 1997 Port Lions
Comprehensive Development Plan.
17.66.050 A.S. That actions of the applicant did not cause special conditions or financial hardship from
which relief is being sought by the variance.
In this case, the petitioner has not created special conditions or financial hardship. The fact that the
petitioner is required to go through this variance procedure first, before being allowed to subdivide the
property, will ensure that such special conditions or financial hardships that might befall the petitioner,
or subsequent owners of property in the proposed subdivision, may be avoided.
As alluded to under Standard "A.2" the petitioner has a number of conforming alternatives that would
comply with both subdivision and zoning ordinances and thereby eliminate the need for this variance.
Taken in this context, it would appear that the requested variance is more a matter of financial desire
rather than financial hardship in an attempt to maximize the number of lots in the proposed subdivision
and thereby maximize the economic return to be realized from those lots.
17.66.050 A.6.That the granting of the variance will not permit a prohibited land use in the district
involved.
It does not appear that the granting of the requested variance will permit a prohibited land use in the C-
Conservation zoning district.
The question was called, and it CARRIED 6-0.
B) Case 07-016. Request A Similar Use Determination, according to KIBC 17.03.090, in order to
allow multi-family residential in the RB-Retail Business zoning district as a use similar in character
and impact to boarding houses, hotels, and motels per KIBC 17.25.020.B, multi-family dwellings not
on street level per KIBC 17.25.020.D, and R.V. Parks as a Conditional Use per KIBC 17.53.030.
Lydick reported this request is for Commission review of an application to allow multiple multi-family
dwellings on RB-Retail Business zoned land as a use similar in character and impact to several
permitted and conditions uses permitted in the zone. As a point of clarification, the application
information that you have read had language of an R.V. Park. The request before you tonight is not to
allow an R.V. Park as a Conditional Use, it's only to find or not find that the multi-family dwelling
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P & Z Commission Meeting Minutes
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development on this property would be a similar use. Staff's recommendation is to approve this Similar
Use, that on balance, a multi structure multi-family residential development in the RB-Retail Business
zoning district may be found to be similar in character and impact to a permitted boarding house, hotel,
motel or multi-family residential use not located on street level.
COMMISSIONER JANZ MOVED TO DETERMINE, in accordance with Section 17.03.090
(Similar Uses) of the Borough Code, that a multi structure multi-family residential development in the
RB-Retail Business zoning district is similar in character and impact to a permitted boarding house,
hotel, motel use and similar in character and impact to multi-family residential uses not located on the
street level of a commercial building, and to adopt the findings of fact contained in the staff report
dated February 14,2007 as "Findings of Fact" for Case No. 07-016.. COMMISSIONER JUENGER
SECONDED the motion.
Regular session closed:
Public hearing opened:
Lee Russell, the applicant spoke in favor of this request.
Dane Larsen, the applicant's agent spoke in favor of this request. He stated they are high-end attached
Single Family Residences and will be sold as condominiums.
Public hearing closed:
Regular session opened:
The Commission had a discussion.
FINDINGS OF FACT
[1] As it applies to multi-family residential use at this location, the proposed use is similar in
character and impact to other land uses specifically permitted in the RB - Retail Business
zoning district.
[2] As described in the application, the uses are similar in scale and intensity to other permitted
uses of land allowed in the RB-Retail Business zoning district. Multi-family residential is a
permitted use in the zone, just not on street level of a commercial structure.
[3] As described in the proposal, the multi-structure multi-family residential use will not result in
negative impacts on neighboring properties.
The question was called, and it CARRIED 6-0.
OLD BUSINESS
A) Case 07-013. Adoption of "Findings of Fact" in support of the Commission's denial of a Similar
Use Determination.
COMMISSIONER WATKINS MOVED TO ADOPT the findings contained in the memorandum
dated February 21, 2007 as "Findings of Fact" in support of the denial of a similar use determination in
Case 07-013. COMMISSIONER JANZ SECONDED the motion.
FINDINGS OF FACT
Findings of fact in support of denial are as follows:
1. The denial of the similar use determination is largely based upon the information submitted by the
applicant, the City of Kodiak, and review of applicable zoning requirements and land use
characteristics. Based largely on public testimony, the Commission does not believe that the
proposed location is appropriate for a police station, jail and dispatch center.
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P & Z Commission Meeting Minutes
Page 4 of7
2. The proposed police station, jail and dispatch are determined not to be similar in character and
impact to a permitted hospital use in the R2-Two-family Residential zoning district. The kind of
traffic generation by a hospital would be more compatible with surrounding residential uses.
Generally, ambulances running with sirens and lights on would be going one way, i.e. too the
hospital facility whereas police traffic to and from headquarters could be running sirens and lights
both to and from the police station which would be more disruptive to the surrounding area.
3. Un-refuted concerns about public safety in the area surrounding the proposed police station, jail
and dispatch center, related to pedestrian and vehicle traffic generated to and from the proposed
facility, were not adequately addressed by petitioner, City of Kodiak. Based on the testimony of
many property owners in the area, the common perception was that the proposed police station, jail
and dispatch facility would create a profoundly negative safety and economic impact on their
neighborhood.
4. Comprehensive Plan: The 1997 Lakeside Safeway Subarea Plan identifies this area for residential
use.
o R2- Two-Family Residential District
· Description and Intent. The R2-Two-Family Residential Zoning District is established as a
land use district for single-family and two-family residential dwellings and limited office
uses where public water and sewer services are available. For the two-family residential
zoning district, in promoting the general purposes of this title, the specific intentions of this
chapter are:
A To Encourage the construction of single-family and two-family dwellings in the district;
B. To prohibit commercial and industrial land uses and any other use of the land which would
interfere with the development or continuation of single-family and two-family dwellings in
the district;
C. *** *** *** *** *** ***
D. To discourage any use which would generate other than normal vehicular traffic on streets
serving residents on those streets.
Considering the comprehensive plan identifies this area as residential, along with the
description and intent for a R2 district, it is determined by the Commission that a hospital and
jail/police station would, indeed, impact the development and character of the proposed
neighborhood. Traffic flow and patterns would significantly be increased. Public response
spoke clearly of a neighborhood of concerned homeowners.
The question was called and it CARRIED 6-0.
NEW BUSINESS
There was no new business.
COMMUNICA TIONS
A. KIBCMP Project Consistency Review
COMMISSIONER WATKINS MOVED TO ACCEPT communications A COMMISSIONER JANZ
SECONDED the motion, and it CARRIED by unanimous voice vote.
REPORTS
Lydick reported the KIBCMP Project Consistency Review is in Communications because this is a part
of the Borough that has been ignored due to the policy that we only act on a complaint basis. With the
re-application of the mining operator and the intent to start the operation again we went back to review
the files and noted that prior Conditional Use Permits that were approved by the Commission had
February 21, 2007
P & Z Commission Meeting Minutes
Page 5 of7
lapsed over the years. The operator had been notified of the lapses. We tried to respond in the end of
this communication advising the applicant of these lapses and the need to come back before the
Commission to get the Zoning Compliance and re-establish the Conditional Use Permit. Very often,
the applicant ignores our communications, and they go ahead and do what they want to do. Then it
becomes an enforceable zoning violation, but historically the Borough hasn't provided the funding or
the proactive enforcement mechanisms to go out to look at these operations. One of the things that was
so disconcerting to staff when we reviewed the application was the maps were inadequate to determine
where they were proposing to do anything, which mining leases they had worked in the past, and which
ones they were proposing to use this time. We had made a request for additional information, and
pointed out to the State the information provided is insufficient for us to review the project. The
information was the wrong scale and hand drawn which was a real mess. Lydick doesn't know what
the final outcome will be, he doesn't know if we will be detailed to do a site visit. Whether or not we
will find the funding to purchase adequate recent aerial photography or charter something. We need to
be aware this kind of activity is taking place and has taken place for years, and sooner or later we need
to think about what we are going to do about it. From a zoning standpoint, the operators have been
operating in violation of prior Conditional Use Permits for a number of years. Lack of reporting is
required by Conditional Use Permits, non-renewal at appropriate times. It also underscores the value of
the Alaska Coastal Management Program and our participation in it. An operator in such a remote
location can get away with something for a number of years because locally, we don't have the
resources to go out to check these things. They are aware that they have to deal with the Federal and
State governments and then we receive notification through the office of Project Management &
Permitting, and that is what triggered this off. That underscores the value of our participation in the
Coastal Management Program because in the least we receive notification that this is going on, and we
may have a problem there that we want to deal with. It's an allowable use; it's always been approved
under the Conditional Use Permits. But technologies change, environmental sensitivities change, and
the willingness of local bodies to participate or to allow things to continue and those opinions change,
and it should be in our consciousness that these things are out there.
During discussion the Commission requested copies of the Enforcement Policy. It was the consensus of
the Commission that the Borough needs to purchase updated aerial photos of the Borough, and
enforcement by the Borough needs to be carried out.
COMMISSIONER W ATKINS MOVED TO ACCEPT reports as submitted. COMMISSIONER
JANZ SECONDED the motion.
COMMISSIONER CARVER MOVED TO CHANGE the dates of the work session to March 21st and
the regular meeting to March 28th. COMMISSIONER JANZ SECONDED the motion, and it
CARRIED by unanimous voice vote.
Meeting schedule:
CHAIR KING reminded the Commission that March 13,2007 is the P&ZIP&R Quarterly Update with
the Assembly at 7:30 p.m. in the KIB Assembly Chambers
. March 21, 2007 work session at 7:30 p.m. in the KIB Conference Room
. March 28, 2007 regular meeting at 7:30 p.m. in the Assembly Chambers
AUDIENCE COMMENTS
There were no audience comments.
COMMISSIONER COMMENTS
February 21,2007
P & Z Commission Meeting Minutes
Page 6 of7
COMMISSIONER WATKINS thanked Lydick for being a wealth of information.
COMMISSIONER CARVER stated he is concerned about the Similar Use Determination. It bothers
him that we can do spot Similar Use Determinations, which is no different than spot zoning. He would
have rather seen it go through a zoning change. He also stated he is even more dismayed by the
enforcement of rural areas. It is disheartening to think that we put all this time and energy into this
Planning and Zoning when in reality it is only halfway enforceable and halfway real. He would like to
see that policy looked at by the policymakers in this local government. It is a needed review.
COMMISSIONER JANZ echoed Carver's sentiments because it has bothered her for a long time that
that's the policy, and she doesn't think it is right.
COMMISSIONER JUENGER stated he agrees with Carver and Janz. He feels all we can do about it is
to keep our feelings known.
COMMISSIONER KERSCH stated the Borough really does need to look at getting aerial photographs
and maybe consider it an expenditure for next year's budget.
CHAIR KING thanked Lydick for the mining report. He feels the response to the State on this mine
was very clear and well put together. King stated he has talked to the Assembly and staff quite a few
times about enforcement. He wishes the Borough would put aside enough money to have more people,
equipment, and money to do enforcement.
ADJOURNMENT
COMMISSIONER JANZ MOVED TO ADJOURN the meeting. COMMISSIONER KERSCH
SECONDED the motion, and it CARRIED by unanimous voice vote.
CHAIR FRIEND ADJOURNED the regular meeting at 9:00 p.m.
KODIAK ISLAND BOROUGH
PLANNING AND ZONING COMMISSION
e,X
By:
Dave King, Chair
ATTEST
By: Qle;Oo ~-'nffi
Sheila Smith, Secretary
Community Development Department
DATE APPROVED: March 28, 2007
February 21, 2007
P & Z Commission Meeting Minutes
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