Loading...
2007-01-17 Regular Meeting KODIAK ISLAND BOROUGH PLANNING AND ZONING COMMISSI REGULAR MEETING JANUARY 17, MINUTES o [E F~~-~-:~ [E I~ 00 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 VICE CHAIR KING on January 17, 2007 in the Borough Assembly Chambers. ROLL CALL Commissioners Present Excused Absent Others Present Duane Dvorak, Acting Director Community Development Dept. Sheila Smith, Secretary Community Development Dept. David King Gary Carver Brent Watkins Casey J anz Gary Juenger Bill Kersch Vacant x X X X X X COMMISSIONER JUENGER MOVED TO EXCUSE COMMISSIONER KERSCH. The motion was SECONDED by COMMISSIONER JANZ. 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 5-0. APPROVAL OF MINUTES COMMISSIONER JANZ MOVED TO APPROVE the minutes as submitted. COMMISSIONER WATKINS SECONDED the motion, and it CARRIED 5-0. PUBLIC HEARINGS A. Case 07-013. Request a Similar Use Determination, per KIBC 17.03.090, to allow a police station, including a 22 bed jail and regional dispatch facility, as a use similar in character and impact to a permitted hospital use, per KIBC 17.19.020.G. The location is Lakeside Subdivision, Block 1, Lots 2 through 6, and it is zoned R2- Two Family Residential. Staff reported the purpose of Similar Use Determinations is a comparison between a proposed use that is not on the list of permitted uses in comparing that with a use that is on the list of permitted uses. In this case, the City of Kodiak has requested the review of a proposed police jail and dispatch facility. (inaudible) with the permitted hospital use that is a permitted use in the R2 zone, which is applicable to the properties along Selief Lane. Staff believes the character and impact of this police jail/dispatch center use was similar to the hospital use. However, there was a certain amount of detail (inaudible) the commissioners had asked for additional information regarding definitions, criteria, standards of review in addition to a checklist of various January 17, 2007 P & Z Commission Minutes Page 1 of 12 characteristics of the use. The two uses are dissimilar in some regard, but we're looking at the characteristics of the use that generally refer to parking, loading, traffic generation, landscaping, lighting, signage, hours of operation, waste receptacles, and that sort of thing. We found one definition of impact analysis from the reference we used which was the latest Illustrated Book of Development Definitions, 3rd Edition, published by Rutgers University. It is considered to be a premier work in that area as far as development definitions are concerned, but finding exact definitions that relate to the exact terms of our code was challenging. We provided as many direct definition references as possible, in addition, we provided some additional definitions we felt are relevant, along with some additional analysis. Impacts can be direct or indirect. Without further clarification from the code you can consider either one. It's considering whether the impacts between that use and a hospital are similar. Staff provided parking area requirements to show we have a standard for general hospitals, but we don't have a specified standard for police station. Staff has recommended the Commission grant the Similar Use Determination based on the comparative analysis. COMMISSIONER JUENGER MOVED TO GRANT a Similar Use Determination, per KIBC 17.03.090, to allow a police station, including a 22-bed jail and regional dispatch facility, as a use similar in character and impact to a permitted hospital use, per KIBC 17.19.020.G, and to approve the findings in the staff report dated January 9,2006 as "Findings of Fact" for this case. COMMISSIONER JANZ SECONDED the motion. Regular session closed: Public hearing open: William Sharad, a resident on Selief spoke against this request. Brett Richardson, a resident spoke against this request and submitted a petition. Mark Thomas, a resident is opposed to this request. Myla Thomas, a resident spoke opposing this request. Kerri Sharad, a resident phoned in to speak against this request. Lorna Arndt phoned in to speak in favor of this request. Brian Mitchell, a resident phoned in opposing this request. Mike York, resident, phoned in opposing this request. John Miller spoke opposing this request. Public hearing closed: Regular session open: During discussion COMMISSIONER WATKINS asked Linda Freed if the City Council has chosen a site by the Baranof Park area and he shared his concerns regarding the two way traffic for emergencies, and the let out time for the jail. Linda Freed, City Manager stated the City Council has not made a final decision on a site other than a resolution they passed at their December meeting which indicated they prefer Near Island. Until the City Council resend their previous resolution and choose a new site, and award an engineering contract for that site or an alternative site they do not have a final decision. The Commission continued their discussion. January 17,2007- P & Z Commission Minutes Page 2 of 12 The question was called, and it FAILED 5-0. COMMISSIONER CARVER MOVED TO POSTPONE this determination of Findings of Fact for this case until the February meeting. The motion was SECONDED by COMMISSIONER JANZ, and it CARRIED 5-0. B) Appeal 07-014. Request an appeal of an administrative decision, per KIBC 17.90.010.A, denying zoning compliance to construct a single family residence. The location is a portion of Lot 7, U.S. Survey 3474, and it is zoned C-Conservation. Staff stated the appellants' written argument in support for appeal is document on top, following is the staff report, and then is the appeal record. COMMISSIONER CARVER MOVED TO REVERSE the denial of zoning compliance for the construction of a single family residence on a Portion of Lot 7, U.S. Survey as created by deed at Book 57, Page 46, Kodiak Recording District.. COMMISSIONER WATKINS SECONDED the motion. Staff reported the appeal pertains to the denial of zoning compliance based on applicable sections of KIBC 17.13 pertaining to the minimum lot area and minimum lot width. This appeal only applies to the KIBC Title 17 provisions for lot width and lot area. From staff's perspective does not permit the direct considerations of circumstances surrounding the illegal subdivision of the property in 1972. It doesn't appear to staff that there is any way the Commission can address Title 16 issues of subdivision or issues of property valuation which are not within Title 17. He is sharing the 10 minutes with Brad Meyen, the attorney who has helped conduct the review even before the appeal was filed, and he is council to staff in terms of preparing the appeal packet. Brad Meyen stated this non-conformity goes back to the time when the Federal subdivision that was created with less than 5 acres. Because it was a Federal subdivision it was exempt from the otherwise applicable requirements. What occurred here is an estate deed. At the time of settling the estate the owner of Lot 7 divided it. It would not have complied at that time because in its entirety it was only approximately 3 acres. He stated the Ordinance 80-24-0 adopted June 5, 1980 that grand fathered in all the non-conformities at that time. This deed occurred after that time and that is why we've been unable to recognize this lot as a non-conformity. At this time, AS 4015.01 State statute requires the platting authority approve divisions to create subdivisions, and that was not done at that time. The Borough has looked at the code, analyzed it, and is treating this matter as to upholding the code, effects on neighboring and adjoining property owners, and in looking at that as the nature of their duties here. Mel Stevens, the appellants attorney stated he will take the 10 minute rebuttal. Randy Gilbert stated he gained information from four departments at the Borough - Assessing, Community Development, Tax Department, and Engineering and Facilities. He read from different pages from the written argument in support of appeal stating there is a history of this lot, that every department had files on this lot. Before purchasing the property his investigations shows that the Borough acknowledges this parcel. This all sent up green flags. He spoke of pages 33,34,29,39,40,41,37,36 and 31 in his written argument in support of appeal supporting his claims that the borough acknowledged this lot as a valid piece of property. He started his investigation of this lot in the winter of 2005, which is 10 months of background investigation to ensure there was nothing wrong with this lot. January 17,2007 P & Z Commission Minutes Page 3 of 12 Mr. Stephens rebutted by stating that Mr. Gilbert and Ms. Inga clearly win this case, even if those conversations with Ms. Demi and Mr. Lydick didn't take place because the Boroughs' actions over the past 20 years has showed the Borough has always treated this property as legal and buildable, the Borough has recognized benefits from treating it as legal and buildable and assessing it as legal and buildable for over 20 years. Innocent third parties, Mr. Gilbert and Ms. Inga, have predictably come into the picture and would suffer significant losses if the Borough were allowed to reverse its position and say it is a non-buildable lot. COMMISSIONER CARVER asked Mr. Stephens if he sees any other action besides granting this appeal that would provide relief for your clients, in particular if they applied for a granting of a variance and the Commission saw fit to grant the variance. Would that resolve the issue in your clients favor? Mr. Stephens replied maybe. First, he stated it's not clear what the request for a variance would be from. Second, given he is an attorney, it seems a variance is a situation in which you go in and say "I admit something is wrong here, that I don't have the right to do this right now, that I don't have the right to go into the setback. Please give me a variance for it." He isn't at all sure if a variance can help them. COMMISSIONER WATKINS asked staff about page 55, the Title search done by First American Title Company. It shows right-of-way easements or the place for KEA, would this have gone through the public process before they were granted for the utility easements on these lots. Dvorak stated he doesn't believe so. Normally, if easements are created by plat they're included on the plat itself. Because these are listed by book and page number, it appears that they were granted by the property owner at the time. Perhaps Mr. Meyen should address this. Mr. Stephens stated it has been KEA's practice to go individually to the property owners to ask for an easement so they can run their electric lines through the property. So in that sense, it is a private matter, it doesn't go through a public process. That easement is then recorded and becomes notice to all people that the easement has been granted because it was recorded. The Commission held a discussion. The Commission asked staff what the other avenues of relief would be. Dvorak stated possible rezone of this lot and perhaps other lots on the block, or a variance. Staff doesn't have any way of knowing if the Commission will grant a variance. In granting the appeal, it doesn't appear to staff that it has any effect on the manner on which the property was created. They would get the zoning compliance to build a house, but it's not clear if this would be like a variance or whether we should consider it a non-conformity. It doesn't address the issues in the way staff would think they need to be addressed in order to be definitively clarified. Mr. Stephens stated in this case if you believe Mr. Gilbert and Ms. Inga should be entitled to build their house you should grant the appeal. Mr. Carver's comments about a permanent fix are well taken. Granting this appeal gets us by this very difficult position right now, and does something very significant. Mr. Gilbert and Ms. Inga expected to be in their house by now. Mr. Stephens does agree it would be much better these lots be named lots 7 A and 7B, but Mr. Gilbert doesn't have the power to demand the Seaman's join in with them on a subdivision of Lot 7 itself. They can only speak for their portion of Lot 7. He believes they are willing to do January 17, 2007 P & Z Commission Minutes Page 4 of 12 something along the lines of platting. If you grant the appeal coming back asking for either a rezone or a variance to remove this cloud. The question was called, and it CARRIED 4-1. COMMISSIONER CARVER MOVED TO ADOPT the proposed "Findings of Fact" provided by the appellant. The motion was SECONDED by COMMISSIONER WATKINS. FINDINGS OF FACT 1. Randy Gilbert and Tanya Inga are the owners of a 1.01-acre portion of Lot 7, U.S. Survey 3474 which is also known as 43450 Chiniak Highway. Their property, hereafter sometimes referred to as "the Gilbert/Inga property" is zoned C-Conservation as described in chapter 17.13 of the Borough Code and is carried on the Borough tax rolls under file ID no. 85307000071. It is less than 250 feet in width. 2. Mr. Gilbert and Ms. Inga purchased their property in August of 2006 for the purpose of building their home on it. Single-family dwellings are a permitted use in the C- Conservation zoning district. See KIBC 17.13.020.G. 3. On November 13, 2006 Mr. Gilbert and Ms. Inga sought a zoning compliance permit in order to begin the construction of their home. That permit was denied to them on the grounds that their lot does not have the required lot area [5 acres] and lot width [250 feet] for a lot in the CConservation zoning district. If allowed to stand, this decision effectively means that Mr. Gilbert and Ms. Inga may not improve their property in any way which requires the issuance of a building permit or zoning compliance approval. Mr. Gilbert and Ms. Inga timely appealed this decision to the Planning and Zoning Commission. 4. That portion of Lot 7, U.S. Survey 3474 which Mr. Gilbert and Ms. Inga purchased in August of 2006 was created on July 22, 1982 by recordation of an executrix's deed executed by Betty Shoemaker, Executrix of the Estate of John Shoemaker, conveying the 1.01 acres to Frederick Voge. See records of the Kodiak Recording District, Book 57, Page 46. That executrix's deed used a metes and bounds description to specify the property being conveyed. 5. The July 22, 1982 conveyance of the lot which eventually became the Gilbert/Inga property appears to have violated KIBC 16.10.030.C because no plat of what was in effect a subdivision of Lot 7, U.S. Survey 3474 was ever recorded. While KIBC 16.10.030.C authorized the Borough the authority to enjoin that transfer and to recover a penalty by appropriate legal action, it made no effort to do so. Borough assessment records show that this particular lot was twice more conveyed (on 2/23/98 from the Estate of Frederick V oge to Anita Biggins, Book 154, Page 842; and on 4/15/04 from Anita Biggins to Phillip and Patricia McCloskey, Ser. No. 2004-000815-0) before being purchased by Mr. Gilbert and Ms. Inga in August of 2006. The Borough took no action to enjoin or assess a penalty with respect to either of those two subsequent conveyances despite there apparent violation of KIBC 16.10.030.C, nor did it take any such action with respect to the more recent 2006 conveyance to Mr. Gilbert and Ms. Inga. In short, for over 24 years since the creation of the Gilbert/Inga property, the Borough has consistently treated that lot as a legal lot for purposes of being bought, sold or otherwise conveyed. 6. Borough assessment records also show that in 1983 the lot which had been conveyed to Frederick V oge the previous year was improved by the construction of a small single January 17, 2007 P & Z Commission Minutes Page 5 of 12 family residence. The Borough assessed and taxed that dwelling in each of the ensuing 23 years, at no time taking any action to suggest that it was other than a legal and appropriate use of the lot upon which it was built. 7. Finally, Borough assessment records show that, since its creation in 1982, the lot which Mr. Gilbert and Ms. Inga purchased in 2006 has been assessed at a per square foot value consistent with or exceeding the values assigned to all of the other 13 lots within United States Survey 3474. This indicates that, for purposes of generating property tax revenues. the Borough has consistently treated the Gilbert/Inga property as a lot which could be built upon or otherwise developed in the same manner as those other 13 lots. 8. The remaining portion of Lot 7, U.S. Survey 3474, which is currently owned by Andrew and Virginia Seaman, is similar to the portion of Lot 7 which Mr. Gilbert and Ms. Inga purchased in that it was created by a metes and bounds description in an executrix's deed rather than by a platted subdivision and has neither the required lot area [5 acres] nor lot width [250 feet] for a lot in a CConservation zoning district. In 2005 the Seamans were nevertheless granted a zoning compliance permit and building permit for the construction of a single family residence on that lot. The record also shows that this portion of Lot 7 was purchased and sold or otherwise conveyed between private parties on three different occasions after being created: (1) from Betty Z. Shoemaker to Cherry M. Davis on May 11. 1989 (Book 96, Page 134), (ii) from Cherry M. Davis to Virginia E. Girdler on October 8, 1990 (recorded October 9_1990, Book 103, Page 301), and (iii) from Virginia E. Seaman (formerly Girdler) to Virginia E. Seaman and Andrew L. Seaman, husband and wife, on December 29, 2005 (recorded December 29, 2005, Ser. No. 2005-003423-0). There is no evidence before us to suggest that the borough ever objected to any of these conveyances, all of which would appear to have violated KIBC 16.1 0.030.C. In addition, the record shows that the borough itself foreclosed on this portion of Lot 7, having received a Clerk's Deed to it on June 27, 1995 (Book 137, Page 701), following which it reconveyed the lot to Virginia Girdler on October 10, 1995 (recorded October 16, 1995, Book 139, Page 385) without first making any effort to have it formally platted. 9. In July of2006, prior to purchasing their property, Mr. Gilbert and Ms. Inga sought a variety of information about it from both the Borough Assessing Department and the Borough Community Development Department. During the course of this investigation Mr. Gilbert asked whether he could build on this property and was twice told, by two different employees of the Community Development Department, that he could, in fact., do so. Ms. Inga was present on one of these occasions but not the other. One of the employees who told Mr. Gilbert that he could build on the property was Laura Demi; the other was the Borough Zoning Enforcement Officer, Martin Lydick. Mr. Gilbert and Ms. Inga reasonably relied upon this advice in deciding to purchase the property in question at a cost of over $70.000. 10. No legitimate public interest will be served by denying Mr. Gilbert and Ms. Inga the right to construct a home (in the form of a single family dwelling) on their portion of Lot 7, United States survey 3474. Since the borough has treated both portions of Lot 7, United States Survey 3474 as valid and legal lots for over 24 years, and since both lots were created before the December 2, 1982, when KIB Ordinance 82-46-0, creating KIBC 17.13.050, was enacted, it is proper and appropriate to view both of these lots as nonconforming lots of record within the meaning of chapter 17.36 of the borough code. January 17, 2007 P & Z Commission Minutes Page 6 of 12 11. The position taken by the Borough staff in denying the zoning compliance permit needed for construction of the Gilbert/Inga home to move forward is inconsistent with the Borough's treatment of the lot in question for more than 24 years and directly contrary both to the Borough's position with respect to the adjoining portion of Lot 7, taken as recently as 2005, as well as advice offered to Mr. Gilbert and Ms. Inga by borough staff, acting within the scope of their authority, shortly before they purchased their portion of Lot 7. In view of these circumstances and the substantial tax revenues the Borough has derived from assessing the lot here in question for well over two decades, it would be unconscionable to deny Mr. Gilbert and Ms. Inga the zoning compliance approval and permit they seek. 12. This appeal is granted. The director of the Community Development Department is directed to issue the appropriate zoning compliance permit to Mr. Gilbert and Ms. Inga. The question was called, and it CARRIED 4-1. C) Case 07-01S. Request a Variance, in accordance with KIBC 17.34.040 A and 17.66.020, that the side yard setback be reduced to 5 feet to accommodate a 17' x 20' addition to the structure and existing house projection in the required 10 foot side setback for a zero-lot line dwelling. The applicant is Nathaniel Newman and the agent is Community Builders/Dane Larsen. The location is KiIlarney Hills Subdivision, Block 4, Lot lOB, and the zoning is R2- Two Family Residential. Staff reported (22) public hearing notices were distributed with no comments returned. The petitioners have requested that the setback be reduced to 5 feet to accommodate a 16 by 20 foot addition, but according to the site plan the proposed 16 by 20 foot addition would have a 8 foot 10 inch clearance from the property line. Staff had recommended approval of this variance subject to reducing the 5 foot encroachment allowance down to 2 foot of allowable encroachment. It allows a little fudge room in case their measurements aren't totally correct. A two foot encroachment is adequate for the addition as proposed. Staff recommended approval recommended reducing it down to two feet of encroachment. COMMISSIONER CARVER MOVED TO GRANT approval of a variance, in accordance with KIBC 17.34.040.A and 17.66.020, to allow the side yard setback to be reduced to 8 feet in order to accommodate a 16 by 20 foot addition to the structure and to allow existing structure projections that are encroaching in the required 10 foot side yard setback for a zero-lot-line dwelling and to adopt the findings contained in the staff report dated January 10, 2007 as "Findings of Fact" for this case. The motion was SECONDED by COMMISSIONER JANZ. Regular session closed: Public hearing open: Public hearing closed: Regular session open: Discussion between the commissioners. 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. January 17, 2007 P & Z Commission Minutes Page 7 of 12 The exceptional condition is the shape of the lot which is wide at the front and narrow at the rear. The lot as more than the minimum lot area and lot width. The zero-lot-line overlay zone is unique in that it supersedes the underlying zoning with regard to setbacks and lot area. 17.66.050 A2.Strict application of the zoning ordinances would result in practical difficulties or unnecessary hardships. Strict application would deprive the lot owner from constructing an addition which would be just fine if the lot were a typical rectangular shape. In considering the amount of relief necessary, however, the site plan shows that a conforming alternative can be achieved with less than a five (5) foot encroachment. It is customary to limit the relief to the absolute minimum necessary to allow conformity. In this regard the requested relieve is being reduced from five (5) down to two (2) feet of allowable encroachment. 17.66.050 A3.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. The neighboring property owner (zero-lot-line owner) has signed off on the addition. The petitioner is also observing a five (5) foot side yard setback along the common lot boundary to be consistent with the existing building line. The adjoining lot on the other side is a municipal owned parcel that is a very large size and currently being used for recreation fields. 17.66.050 A4.The granting of the variance will not be contrary to the obiectives of the Comprehensive Plan. Granting of the variance will not be contrary to the objectives of the comprehensive plan. 17.66.050 AS. That actions of the applicant did not cause special conditions or financial hardship from which relief is being sought by the variance. The applicant will not begin the project until the variance has been decided. The current owner inherited the existing encroachment of a prior owner of the property and had no idea that the property was not in conformity with the setback. 17.66.050 A6.That the granting of the variance will not permit a prohibited land use in the district involved. The standard is met. The use of the property will not change, only the floor area of the residential structure. The question was called, and it CARRIED 5-0. D) Case 807-007. Request preliminary approval, in accordance with KIBCI6.40, of the replat of Lots 5, 6, and 7, Block 14, Aleutian Homes Subdivision creating Lots 5A and 7A, Block 14, Aleutian Homes Subdivision, and preliminary approval of the vacation of a 10 foot portion of a platted utility easement, according to KIBC 16.60, along the rear lot line of proposed Lot 7 A The applicant is Gene Sundberg, and his agent is Horizon Land Surveying. The location is 402 and 415 Thorsheim. Aleutian Homes Subdivision, Block 14, Lots 5, 6, and 7, and it is zoned Rl- Single Family Residential. Staff reported this request is to consolidate and re-subdivide three lots into two lots. In addition to the process of consolidating these lots proposed lot 7 A does benefit from approximately five additional feet being added to the side of the lot. All three lots currently are non-conforming. Current Lots 5 and 6 have a building built over the common lot line. This moves all three lots toward conforming. In addition, the petitioner has requested vacation of the 10 foot utility January 17, 2007 P & Z Commission Minutes Page 8 of 12 easement. On the basis of no comment from KEA staff recommended approval of the preliminary plat and the vacation. The one response received was in opposition to the vacation, and their rationale is if KEA ever extended the line it would favor the remaining the 10 foot remaining easement on their side of the property line. In these kinds of cases staff still tends to rely on KEA as the public interest in this case for this particular easement. We didn't hear from any of the other utilities. We presume if KEA did need to extend the line or another utility went in there they would have to contact the owner of Lot 7 A to acquire additional easement to restore a portion of that easement. We have went through the process and we didn't hear from any of the utilities for any need for or any projected future need for this easement, so staff recommends approval of the preliminary plat and vacation as submitted. COMMISSIONER WATKINS MOVED TO GRANT preliminary approval, in accordance with KIBC 16.40, of the replat of Lots 5, 6 and 7, Block 14, Aleutian Homes Subdivision creating Lots 5A and 7 A, Block 14, Aleutian Homes Subdivision, and preliminary approval of the vacation of a 10 foot portion of a platted utility easement, according to KIBC 16.60, along the rear lot line of proposed Lot 7 A, subject to a condition of approval, and to adopt the finding in the staff report dated January 10, 2007 as "Findings of Fact" for this case. The motion was SECONDED by COMMISSIONER JANZ. Regular session closed: Public hearing open: Gene Sundberg spoke in favor of his request. Public hearing closed: Regular session open CONDITIONS OF APPROVAL 1. The vacation must be reviewed and approved by the Kodiak City Council prior to final approval. 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 provides a subdivision ofland that is consistent with adopted Borough plans for this area. The question was called, and it CARRIED 5-0. OLD BUSINESS A) Case 07-010. Adoption of "Findings of Fact." A brief discussion. COMMISSIONER JANZ MOVED TO ADOPT the findings contained in the memorandum dated January 17, 2997 as "Findings of Fact" in support of the denial of a variance for Case 07- 010. COMMISSIONER CARVER SECONDED the motion. January 17, 2007 P & Z Commission Minutes Page 9 of 12 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. The exceptional condition of the property is an abandoned waste/garbage dump that no longer serves the historical purpose. 17.66.050 A.2. Strict application of the zoning ordinances would result in practical difficulties or unnecessary hardships. The known existence of an unpermitted and non-compliant solid waste dump would negatively taint large acreages. 17.66.050 A3.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. Without knowing the true extents of the land fill, which is shown on the survey with a dashed line, the Commission can't vote for the variance. There is no way to determine the potential impact of the land fill without more precise information, including but not limited to bearings, distances and areas of the land fill, as well as hydrological information for the area. The proposed lot does not meet the minimum lot design requirements for access to a right-of- way nor does it have legal, physical and practical access to a public tideland area. At the present time, the foresaid property is the subject of a legal dispute, leaving it unclear where the current property lines lie, including at least one residence. The granting of this variance could result in prejudice to these property owners. According to testimony during the public hearing, the residence associated with the adjoining property is still be lived in and could be affected by this variance. 17.66.050 A4.The granting of the variance will not be contrary to the obiectives of the Comprehensive Plan. The comprehensive plan does not address this locale. 17.66.050 A5.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 petitioner has inherited a large financial liability and seeks to place the burden of the liability with the party responsible for its creation. 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 5-0. NEW BUSINESS A) Commission Elections COMMISSIONER CARVER MOVED TO NOMINATE DAVE KING for Chair. The motion was SECONDED by COMMISSIONER JANZ. January 17, 2007 P & Z Commission Minutes Page 10 of 12 COMMISSIONER CARVER MOVED TO CLOSE nominations. The motion was SECONDED by COMMISSIONER JANZ. COMMISSIONER JUENGER MOVED TO NOMINATE GARY CARVER for Vice Chair. COMMISSIONER CARVER declined due to having to miss too many meetings this year. COMMISSIONER JANZ MOVED TO NOMINATE BRENT WATKINS for Vice Chair. The motion was SECONDED by COMMISSIONER JUENGER. COMMISSIONER CARVER MOVED TO CLOSE nominations. The motion was SECONDED by COMMISSIONER JUENGER. COMMUNICATIONS There were no communications. REPORTS Meeting schedule: . February 14, 2007 work session at 7:30 p.m. in the KIB Conference Room . February 21,2007 regular meeting at 7:30 p.m. in the Assembly Chambers Parks & Recreation Committee Meeting Minutes: . November 14, 2006 . November 28, 2006 Dvorak reported the Clerk's Office wants some idea of when the Commission could meet with the Assembly for quarterly updates. They want to set up a year long calendar for quarterly updates from the Commission at the Assembly work session. Ifwe can get some feedback from the commissioners for this first quarter, and then you can think about subsequent quarters. COMMISSIONER CARVER stated he would be out of town for March or July. COMMISSIONER JANZ stated she would be out of town for the March COMMISSIONER JUENGER stated he would be out of town for the March. Dvorak stated he will try to get the commission on the February 8th Assembly work session. AUDIENCE COMMENTS COMMISSIONERS' COMMENTS COMMISSIONER WATKINS stated he is happy to see a lot of people show up and all the comments over the phone. He's happy for all the participation. COMMISSIONER CARVER said he is tired. COMMISSIONER JANZ said we made a lot of decisions and will be expecting to see Mr. Gilbert and Ms. Inga down the road. Congratulations to our Chair and vice chair. COMMISSIONER JUENGER congratulated the new chair and vice chair, and welcomed the newest member, Bill Kersch, who is out of town tonight. He also thanked staff and council. CHAIR KING stated he appreciated all the hard work staff done on the appeal case and our decision in no way was implying that staff did anything wrong. He also feels the codes need a lot of re-writes. January 17,2007 P & Z Commission Minutes Page 11 of 12 COMMISSIONER CARVER echoed Kings sentiments about the appeal case. He was not concerned at all about the present staff's position on that. He thinks staff took a very real position that staff had to take because staff was very clear about doing a very thorough research on that and were following the codes as should be. Carver's decision was based on recognizing we're dealing with a lot of past errors and omissions, and they in no way reflect on the present staff s work on this. ADJOURNMENT COMMISSIONER CARVER MOVED TO ADJOURN the meeting. The motion was SECONDED by COMMISSIONER JANZ. The Planning & Zoning regular meeting adjourned at 10: 1 0 p.m. KODIAK ISLAND BOROUGH PLANNING AND ZONING COMMISSION ATTEST By: ,,-lhp;on ~o,lt+ff) Sheila Smith, Secretary Community Development Department DATE APPROVED: February 21,2007 January 17, 2007 P & Z Commission Minutes Page 12 of 12