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1999-03-17 Regular Meeting KODIAK ISLAND BOROUGH PLANNING AND ZONING COMMISSION REGULARMEETING-MARCH 17,1999 MINUTES I. CALL TO ORDER The regular meeting of the Planning and Zoning Commission was called to order at 7:30 p.m. by CHAIR TURNER March 17, 1999 in the Borough Assembly Chambers. II. ROLL CALL Commissioners Present: Bob Himes Roberta Scheidler Clarence Selig Darlene Turner, Chair Others Present: Linda Freed, Director Community Development Dept. Bob Scholze, Associate Planner Community Development Dept. Jennifer Smith, Secretary Community Development Dept. Commissioners Excused: Donna Bell Walter Stewart *One position was vacant APR 2 2 1999 A quorum was established. III. APPROVAL OF AGENDA CHAIR TURNER asked if there were any changes or additions to the agenda. BOB SCHOLZE indicated there were none. COMMISSIONER HIMES MOVED TO APPROVE the agenda as submitted. The motion was seconded by COMMISSIONER SCHEIDLER, and CARRIED by unanimous voice vote. IV. MINUTES OF PREVIOUS MEETING COMMISSIONER SELIG MOVED TO ACCEPT the minutes of the February 17, 1999 Planning and Zoning Commission regular meeting, as submitted. The motion was seconded by COMMISSIONER SCHEIDLER, and CARRIED by unanimous voice vote. P & Z Minutes: March 17. 1999 Page 1 of 11 V. AUDIENCE COMMENTS AND APPEARANCE REQUESTS CHAIR TURNER stated that the newspaper notice erred in stating Case #99-002 was public hearing. It is before the Commission as an Old Business item. Any people wishing to speak on this case should do so during the audience comment and appearance request time. Greg Gabriel. Jr.-Applicant for Old Business Item Case #99-002: Mr. Gabriel believes the Commission voted correctly on the variance, and opposes the reconsideration of his case. Steve Gray-Concerned with Old Business Item Case #99-002: Commented that the Borough has at its dispose competent legal advise, and therefore urges the Commission to consult Borough attorneys for correct advise on adopting correct physical findings on future variance cases. Mr. Gray urged the Commission to reconsider the grant of the vanance. There were no further audience comments or appearance requests. VI. PUBLIC HEARINGS A) Case 99-003. Request for a variance from KIBC 17.17.050.A to allow an unpermitted, existing garage to encroach twenty-four and a half (24~) feet into the required twenty-five (25) foot front yard setback in the Rural Residential One zoning district on Lot 14B, Russian Creek Subdivision. BOB SCHOLZE indicated twenty (20) public hearing notices were mailed for this case, and none were returned. Staff recommended approval of this request subject to two conditions as discussed during the packet review worksession on March 10, 1999. BOB SCHOLZE further indicated that the applicant found a typo error in staff report on page 4 of 7 under comments third paragraph should read as follows: "By oversight, the judgment had not been recorded and therefore a title search did not inform the new owners..." COMMISSIONER HIMES MOVED TO GRANT a variance from KIBC 17.17.050.A to allow an unpermitted, existing garage to encroach twenty-four and a half (24 Y2) feet into the required twenty-five (25) foot front yard setback in the RRI-Rural Residential One zoning district on Lot 14B, Russian Creek Subdivision subject to the conditions of approval contained in the corrected staff report dated February 22, 1999, and to adopt the findings in that staff report as "Findings of Fact" for this case. P & Z Minutes: March 17, 1999 Page 2 of 11 CONDITIONS OF APPROVAL 1. The portion of the roof encroaching into the right-of-way must be removed or a Borough permit obtained, if possible, to allow the encroachment to remam. 2. Zoning compliance and building permits must be obtained for the storage building. 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. Location of the well combined with steep topography at the rear of the property behind the house precludes placing an accessory building there. Another exceptional circumstance is the location of the existing foundation. It is an encroachment of the front setback that is "grandfathered" because it predates the adoption of current Borough regulations. It was the site of a structure previously because it is the most reasonable location on the lot for an accessory building. 17.66.050 A.2. Strict application of the zoning ordinances would result in practical difficulties or unnecessary hardships. Strict application of the zoning ordinance would require demolishing or moving the storage building, which represents a substantial investment to the applicant who were made aware neither of its violation status nor of the default judgment. By oversight, the judgment had not been recorded and therefore a title search did not inform the new owners that they were buying into a messy zoning violation issue. In addition, there would be the added expense of constructing a new foundation. To be denied reasonable use of the existing foundation would result in an unnecessary hardship since the foundation itself will remain where it has been since probably the 1940's encroaching the front yard setback. 17.66.050 A.3. The granting of the variance will not result in material damages or prttiudice to other properties in the vicinity nor be detrimental to the public's health. safety and welfare. Due to the curve of the road and existing foliage, the location of the building in 401..~ .I::..~_+ u__.:I __+1..__1. ~_ __+ 1~1._lu +_ ____+_ _ ___+__ +__-"'~_ 1..____.:1 +1.._+ __.~_+_ -"'__ Ull;;< UUIU yc:uu ::>I;;<LUi1\,;l\. I::> llUL lll\.IJIY LU \,;11Ji1LIJ i1 ~11Ji1LIJI Ui1111\'; lli1L.C:UU Uli1L IJ.iUM::> lUl traffic traveling down Noch Drive. The approach and line of sight from the west driving up Noch Drive remains open and unobstructed. It does not appear that grant of the variance will be detrimental to public health, safety, and welfare. This structure has been in its present location for three years with no indication that it creates a problem. In at least three other cases variances have been granted in Bells Flats to permit construction on preexisting military foundations that P & Z Minutes: March 17, 1999 Page 3 of 11 encroached required setbacks (Case 279-A in 1973; Case 85-038 in 1985; and Case 93-001 in 1993). 17.66.050 AA. The granting of the variance will not be contrary to the objectives of the Comprehensive Plan. The Womans Bay Comprehensive Plan designates this area as residential and accessory buildings are recognized as a permitted use in residential districts. 17.66.050 A.5. That actions of the applicant did not cause special conditions or financial hardship from which relief is being sought by the variance. It is the actions of the previous owner, in constructing the building in the setback in the first place and subsequently in not fully disclosing its zoning violation status and the court judgment ordering its removal when transferring the property to the present owners. If the applicants had been fully informed by previous owners or been made aware by a title search had the court judgment been recorded, they most likely would have taken measures to avoid the present circumstance. 17.66.050 A.6. That the granting of the vanance will not permit a prohibited land use in the district involved. Accessory buildings are a permitted use in the RRI-Rural Residential One zoning district. The motion was SECONDED by COMMISSIONER SCHEIDLER. Regular session closed. Public hearing opened: James M'l,jor-Applicant: Commented that he was not aware ofthe problem until it was brought to his attention by staff. Mr. Major concurred with staffs recommendation to request a variance to solve the unpermitted situation as described in paragraph 3 on page 4 of 7 of the staff reported dated February 22, 1999. CHAIR TURNER asked if Mr. Major had any other comments. Mr. Major indicated that he did measure from the building in question to the dirt berm, and it did indeed encroach twenty feet (20') into the setback but that there was adequate area to the "right-of-way". Public hearing closed. Regular session opened: The question was called and the motion CARRIED by unanimous roll call vote. P & Z Minutes: March 17, 1999 Page 4 of 11 B) S99-003. Request for preliminary approval of the subdivision of Lot 9, Block 7, U.S. Survey 2539, Bells Flats Alaska Subdivision, and creating Lots 9A, 9B, 9C, and 9D, Block 7, U.S. Survey 2539, Bells Flats Alaska Subdivision. BOB SCHOLZE indicated eleven (11) public hearing notices were mailed for this case, and none were returned. BOB SCHOLZE indicated that an additional condition of approval (#3) is recommended following discussion about driveway access and emergency vehicle response during the packet review work session. Staff received a recommendation from the Fire Marshal that driveway access to Lots 9A, 9B, and 9C be restricted only to Middle Bay Drive, and that Lot 9D have driveway access which could be from either Middle Bay Drive or Bells Flats Road but not both, and that this requirement be placed as a plat note. Documentation had been provided by a registered engineer demonstrating that each lot can meet the wastewater disposal standards of ADEC, including separation requirements, and have access to potable water for domestic purposes. No condition of approval is therefore required regarding this. Staff recommended approval ofthis request subject to three conditions. LINDA FREED reported that Dale Rice, Fire Chief for Womens Bay Fire District, consulted with Dave Conrad, Chairman of Womens Bay Service District. He confirmed it would not be a problem with dual driveway access since emergency service and service district staff felt comfortable in responding to emergency situations with dual driveway access. Therefore Mr. Rice wanted to express to the Commission that there was no objection to dual driveway access for Lot 9D. COMMISSIONER SELIG MOVED TO GRANT preliminary approval to the subdivision of Lot 9, Block 7, Bells Flats Alaska Subdivision, creating Lots 9A, 9B, 9C, and 9D, Block 7, Bells Flats Alaska Subdivision, subject to the three conditions of approval contained in the revised summary statement dated March 15, 1999, and to adopt the findings in the staff report dated February 22, 1999 as "Findings of Fact" for this case. CONDITIONS OF APPROVAL 1. As requested by KEA, plat a ten by one hundred and thirty (10 x 130) foot utility easement along the northeast corner of proposed Lot 9A for an existing underground electric line and vault servicing adjacent Lot 8B-l. 2. Unless the portion of the eighteen (18) inch culvert crossing under Middle T"Il.___.T""ll... _ _1 _ ..l_ .1. _ _.l. . ___.__1T _.Lr\T"'IIro."_ ___..L1___1_.L_ .L1__ "_1_""-_r" nay .LJnve ana exrenmng omo proposea LOt: :'1.LJ IS cur oacK {Q me ngm-oI- way, plat a five (5) foot wide utility easement centered on the culvert that extends five (5) feet beyond the end of the culvert for future maintenance and repair. 3. Place a note on the final plat stating: "Driveway access to Lots 9A, 9B, and 9C is restricted to Middle Bay Drive. Driveway access to Lot 9D can P & Z Minutes: March 17, 1999 Page 5 of 11 be from either Middle Bay Drive or Bells Flats Road but is restricted to either one or the other." 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 of land that is consistent with adopted Borough plans for this area. The motion was SECONDED by COMMISSIONER SCHEIDLER. Regular session closed. Public hearing opened: Doug Hogen-Applicant: Urged the Commission to reconsider condition #3 to allow for dual driveway access for Lot 9D. Public hearing closed. Regular session opened: COMMISSIONER HIMES noted that there is more than one emergency response service responding to emergency situations on Kodiak besides utility service agencies, and preferred condition #3 remains as a condition. Further discussion was held. CHAIR TURNER suggested the addition of two words to condition #3 for the condition to read as: 3. Place a note on the final plat stating: "Driveway access to the residence on Lots 9A, 9B, and 9C is restricted to Middle Bay Drive. Driveway access to Lot 9D can be from either Middle Bay Drive or Bells Flats Road but is restricted to either one or the other." COMMISSIONER HIMES MOVED TO AMEND condition approval #3 to read as: "Driveway access to the residence on Lots 9A, 9B, and 9C is re~trir.ten to Minn1e Rav nrive_ nrivewav access to T ,ot 9n can he ---..---...--...- -.------ --.; ---. -- ---. -..-.; -------...- --- -- ------- from either Middle Bay Drive or Bells Flats Road but is restricted to either one or the other." The amended motion was SECONDED by COMMISSIONER SCHEIDLER. P & Z Minutes: March 17, 1999 Page 6 of 11 The question was called and the AMENDED MOTION CARRIED by unanimous voice vote. The question was called for the original motion, and the ORIGINAL MOTION CARRIED by unanimous roll call vote. VII. OLD BUSINESS A) Case 99-002. Reconsideration by the Planning and Zoning Commission granting a lot size variance according to K.I.B.C. 16.40.050.B.l dividing an existing non- conforming lot of 4.82 acres into two lots (one 3.32 acres, and the other 1.5 acres) both of which are less than the minimum five (5) acres required by K.I.B.c. 17.13.050.A in the C-Conservation zoning district, and the adoption of the "Findings of Facts" postponed from the February 17, 1999 meeting. LINDA FREED reported that this case was approved for a lot size variance by the Commission at the February 17, 1999 regular meeting. LINDA FREED further reported that a Commissioner, who voted on the prevailing side, did file a motion to reconsider supported by a second from another Commissioner. Linda proceeded with order of business the Commission had to consider. CHAIR TURNER called for a motion to reconsider. COMMISSIONER SELIG called for determination of a conflict of interest with the reconsideration case. After discussion, COMMISSIONER HIMES, COMMISSIONER SCHEIDLER, and CHAIR TURNER determined COMMISSIONER SELIG did not have a conflict of interest. Hearing no motion for reconsideration, CHAIR TURNER requested staff report to determine the adoption of the "Findings of Facts" for Case #99-002. BOB SCHOLZE recommended since the reconsideration was not approved, the Commission should adopt the six (6) FINDINGS OF FACTS (APPROVAL) outlined on Pages 2 through 4 ofthe staff report dated February 25, 1999. COMMISSIONER SCHEIDLER MOVED TO ADOPT the "Findings of Facts" contained in the February 25, 1999 in support of the approval of Case #99-002. FINDINGS OF FACT (APPROVAL) 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. An exceptional circumstance and unique condition exists which does not apply to other properties in the same land use district since a Supreme Court decision has P & Z Minutes: March 17, 1999 Page 7 of 11 been rendered establishing a divided fee interest in ASLS 77-33. The Supreme Court decision confirmed that both disputing parties are, in fact, entitled to fee interest in the property. The joint ownership imposed by this is not amicable and has bred continuing dispute. The precedent for granting a lot size variance for creation of a lot less than five (5) acres in the C-Conservation zoning district based on criteria other than "physical circumstances" has been previously established (Case 98-026). Lots as small as 1.5 acres have supported seasonal recreational cabin use in remote areas, and there are three in the general proximity of the subject property (Tracts A and B of ASLS 75-1 on Little Raspberry Island recorded as Plat 77-18, and Tract A, Raspberry Island recorded as Plat 86-3). It should be noted that this is an exceptional case and is not intended to set a precedent, short of a similar Supreme Court decision. 17.66.050 A.2. Strict application of the zoning ordinances would result in practical difficulties or unnecessary hardships. Practical difficulties and unnecessary hardships are claimed and supported by the applicant in this case. These include adverse effects on the applicant's quality of life and enjoyment of the property, as well as the difficulty of maintaining the applicant's cabin on the property with divided title. The inability of the co- owners to agree and co-exist amicably demonstrates a practical difficulty and unnecessary hardship that could conceivably have a negative spill-over effect on other properties and users in the area. The applicant has asserted that the Borough bears some responsibility for the ongoing property dispute since the Gabriels, property owners of record in 1985, did not receive notification about the exception request to construct a lodge on the property then, and therefore were denied the opportunity to object and/or appeal. The Gabriels were, in fact, properly notified about the public hearing for the exception (Case 85-073) at the post office box they used in the quitclaim deed dated August 28, 1984 giving them an undivided one-half interest in the property. However, the letter of notification dated November 21, 1985 confirming grant of the exception by the Commission for a commercial hunting and fishing lodge was sent to neither property owner of record (Brodman and Gabriel) but to the Gutchens as agents for Brodman. In addition, the zoning compliance permit for the lodge issued on December 12, 1985 was signed by neither property owner of record, but rather by Mr. Gutchen, as agent for Joe Brodman. Any degree to which the Gabriels' lack of involvement in the exception process contributed to the nresent stalemate and nronertv disnllte can he rectified hv m-antinl! this ---- r------- ----------- ---- r--r---.; ---r---- ----- -- --------- -.I g--------Q ----- variance should it then result in subdivision and independent ownership of the property . 17.66.050 A.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. P & Z Minutes: March 17, 1999 Page 8 of 11 With placement of a non-commercial development easement or deed restriction on the 1.5 acre parcel, to be required if a preliminary plat application for this property is submitted, granting of the variance will result in no change to the existing type of use on the applicant's portion of the property. Therefore, no material damages or prejudice to other properties in the area should result. Nor will grant ofthe variance be detrimental to the public's health, safety and welfare, consistent with the third finding of fact justifying the exception granted by the Commission for the commercial hunting and fishing lodge on the property in 1985 (Case 85-073). As indicated in the letter to the Guttchens dated November 21, 1985, that finding stated: "The proposed use does not appear to adversely impact other properties or uses in the area because many other properties on Raspberry Island are similarly used as a base for hunting, fishing and recreational activities. " 17.66.050 AA. The granting of the variance will not be contrary to the objectives of the Comprehensive Plan. Granting the variance will not be contrary to the objectives of the Comprehensive Plan since the existing types of uses on the property are uses that area permitted in the C-Conservation zoning district. 17.66.050 A.5. That actions of the applicant did not cause special conditions or financial hardship from which relief is being sought by the variance. The property ownership dispute that ultimately required a Supreme Court Decision to resolve resulted from transactions and agreements that predate the applicant's ownership of the property. The actions of the original owner of the property, in transferring overlapping interests in the property to different parties has caused the special conditions from which relief is being sought. 17.66.050 A.6. That the granting of the variance will not permit a prohibited land use in the district involved. The existing types of land uses on the property, consisting of a lodge and recreational cabin, will not change as a result of the variance and are permitted in the C-Conservation zoning district. The motion was SECONDED by COMMISSIONER SELIG. The question was called and the motion CARRIED by unanimous voice vote. LINDA FREED noted that the appeal period begins at 12:01 p.m. on March 18, 1999 for 10 working days, and if anyone wants to file an appeal that it is done with the Borough Clerk's Office. P & Z Minutes: March 17. 1999 Page 9 of 11 VIII. NEW BUSINESS There was no new business. VIII. COMMUNICATIONS COMMISSIONER SCHEIDLER MOVED TO ACKNOWLEDGE THE RECEIPT of Communication item A. The motion was SECONED by COMMISSIONER SELIG and CARRIED by unanimous voice vote. A) Letter dated March 1, 1999 to Iver Malutin from Eileen Probasco, Assistant Planer regarding a mobile home and shed setback violation on Lot IE, USS 3264. COMMISSIONER HIMES indicated regarding communication item A, that the mobile home was tentatively planned to be used as a burning exercise that would be beneficial for the Fire Department. There were no further communications. x. REPORTS COMMISSIONER HIMES and BOB SCHOLZE gave a brief outline of seminars that they attend in Anchorage. LINDA FREED reported on meeting schedule: . 3/24th = Work Session-Canceled . 3/3151 = PasagshaklNarrow Cape Area Plan Work Session . 417th = Work Session-Canceled . 4/8th = Joint work session with the Assembly and Parks & Recreation Committee . 4/14th = Packet review . 4/2151 = Regular meeting . 4/28th = Last PasagshaklNarrow Cape Area Plan work session . May = Public hearing for PasagshaklNarrow Cape Area Plan . June = Assembly adoption ofthe PasagshaklNarrow Cape Area Plan COMMISSIONER SELIG MOVED TO ACCEPT the reports as submitted. The motion was SECONDED by COrvIlvIISSIOl",'ER SCHEIDLER and CARRIED by unanimous voice vote. There were no further reports. P & Z Minutes: March 17. 1999 Page 10 of 11 XI. AUDIENCE COMMENTS There were no audience comments. XII. COMMISSIONERS' COMMENTS There were no Commissioners' comments. XIII. ADJOURNMENT CHAIR TURNER adjourned the meeting at 8:05 p.m. ATTEST /- DATE APPROVED: April 21, 1999. P & Z Minutes: March 17, 1999 KODIAK ISLAND BOROUGH PLANNING AND ZONING COMMISSION By: ~ fl-thL+ ~ Darlene Turner, ir '. j~ Page 11 of 11