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2009-11-18 Regular Meeting --�' KODIAK ISLAND BOROUGH • DEC 222009 I PLANNING & ZONING COMMISS • I E REGULAR MEETING MINUTES BOROUGH CLERK'S OFFICE November 18, 2009 Assembly Chambers CALL TO ORDER CHAIR KING called to order the November 18, 2009 regular meeting of the Planning and Zoning Commission at 7:30 p.m. ROLL CALL Commissioners present were Dave King, Brent Watkins, Casey Janz, Bill Kersch, Alan Torres, and Lori Ryser. Absent was Jennifer Vickstrom. COMMISSIONER JANZ MOVED to excuse Jennifer Vickstrom. VOICE VOTE ONMOTIONFAILED UNANIMOUSLY APPROVAL OF AGENDA COMMISSIONER TORRES MOVED to approve the November 18, 2009 Planning & Zoning agenda. VOICE VOTE ON MOTION CARRIED UNA NI M O USL Y APPROVAL OF MINUTES COMMISSIONER JANZ MOVED to approve the September 16, 2009 Planning & Zoning Regular Meeting Minutes VOICE VOTE ON MOTION CARRIED UNANIMOUSL Y AUDIENCE COMMENTS AND APPEARANCE REQUESTS There were no audience comments and appearance requests. PUBLIC HEARINGS A) Case 10 -002. Request a review of Case 87 -022, per KIBC 17.200.060, requesting a modification to an existing conditional use permit (Communications Facility /Radio Tower) to permit an additional 50 foot tower and antennas to co- locate with existing facilities. Located in the C- Conservation zoning district and legally described as a portion of the West ' Southwest ' Southwest ' , Section 31, T17S R19W, Seward Meridian on Pillar Mountain, a portion of US Survey 3945. The location is U.S. Survey 3945, Communications site # 2 and it is zoned C- Conservation. The applicant is Aksala Electronics, Inc. Cassidy gave a brief staff report stating this is a routine request and staff recommends approval. COMMISSIONER WATKINS MOVED to renew a conditional use permit, according to KIBC 17.200 (Conditional Use Permits) and 17.50.040.H (Conditional Uses), to permit an additional 50 foot tower and antennas to co- locate with existing facilities, subject to three (3) conditions of approval, and to adopt the findings of fact contained in the staff report dated April 20, 2009, as "Findings of Fact" for Case 10 -002. The public hearing was opened &closed: There were no public comments. Commission discussion November 18, 2009 P &Z Minutes Page 1 of 9 CONDITIONS OF APPROVAL 1. The color of structures and equipment will be subdued to blend in with the natural surroundings, and natural vegetation immediately surrounding the constructed facilities will be preserved to the maximum extent possible to preserve visual aesthetics. 2. Should the site be abandoned due to future advance of communications technology or development of alternative communications facilities, the site will be cleared within one (1) year of abandonment and returned to a natural state. 3. Should the exterior of the facility require modification to accommodate new or different equipment, which would substantially alter the visual impact of the facility, the Planning and Zoning Commission will review the modifications at a public hearing prior to the implementation of such changes. FINDINGS OF FACT 17.67.05 A. That the conditional use will preserve the value, spirit, character and integrity of the surrounding area. This use, as well as similar communication and utility facilities have existed in this area for many years without conflicts. Conditions of approval suggested to address aesthetic and visual concerns will preserve the value, spirit, character, and integrity of the surrounding area. Natural vegetation will be maintained around the facility. Colors of structures and dishes should be subdued to the extent possible and necessary. If the facility is abandoned, the site will be cleared of equipment and structures and returned to a natural state. Any change of technology that would require new or different equipment that would change the essential visual character of the site or safety characteristics of the operation of the facility must be reviewed and approved by the Commission at public hearing prior to installation. 17.67.05 B. That the conditional use fulfills all other requirements of this chapter pertaining to the conditional use in question. Based on the site plan and supporting documentation, it appears that the conditional use will fulfill all other requirements of code. The site is above groundwater recharge areas and natural vegetation is required to be preserved to the maximum extent possible. 17.67.05 C. That granting the conditional use permit will not be harmful to the public health, safety, convenience and comfort. The facility will be constructed and maintained in accordance with all applicable federal, state, and local requirements. All construction will meet standards of the Uniform Building and Fire Codes, and communication equipment will be installed and operated in conformance with applicable FCC regulations. 17.67.05 D. That sufficient setbacks, lot area, buffers or other safeguards are being provided to meet the conditions listed in subsections A through C of this section. The site is well separated by topography and vegetation from residential areas. Natural vegetation will be maintained as a condition of approval to preserve, to the extent feasible, the i visual continuity of the ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSL Y B) Case 10 -003. An appeal, in accordance with KIBC 17.220, of an Administrative Order to Cease and Desist an unlawful use in a RR1 - Rural Residential One Zoning District. Appellant is challenging the declaration that he is conducting a commercial rock quarry operation on a parcel zoned for residential use in violation of KIBC 17.15.080 but is involved November 18, 2009 P &Z Minutes Page 2 of 9 in the incidental removal of rock in preparation for home construction. Lot 13A, Block 1, Monashka Bay Subdivision. The location is 2949 Bay View Road and it is zoned RRl -Rural Residential One. The appellant is Merle W. Brown. COMMISSIONER TORRES MOVED to reverse the decision of the Community Development Director, per the Notice of Violation/Cease and Desist Letter dated August 19, 2009, that the resource extraction on Lot 13A, Block 1, Monashka Bay Subdivision, be allowed to continue as part of the site preparation for residential development, provided that a new zoning compliance permit is applied for and obtained for the continued development. The appeal hearing was opened & closed: Representing staff, Duane Dvorak gave a staff report. Testimony given in support of the appeal was the appellants, Merle and Gloria Brown; Leslee (Zeloof) Baker; Richard Baker; and Scott Arndt. Given opposing testimony was Elizabeth Eufemio (call in); and Chris Campbell. Rebuttal was given by Merle and Gloria Brown. During discussion, there was consensus that this lot that has been excavated to an approved permit grade and level, there's a building permit that the borough voided for foundation work, there is no substantial and continuous rock sales for which no extraction fees should be expected, and the commission would like to see Brown be able to finish building his house. ROLL CALL VOTE ONMOTIONCARRIED UNANIMOUSLY COMMISSIONER WATKINS MOVED to postpone the findings of fact for case S10 -003 to the sixteenth of December regular meeting of the Planning & Zoning Commission. ROLL CALL VOTE ON CARRIED UNANIMOUSLY COMMISSIONER TORRES MOVED to recess for 10 minutes. VOICE VOTE ONMOTION CARRIED UNANIMOUSLY CHAIR KING reconvened the meeting at 9:10 p.m. CHAIR KING announced that COMMISSIONER JANZ left the dais due to being involved in the following case. C) Case 10 -006. An appeal, in accordance with KIBC 17.220.O10B, of an Administrative Order declaring that the homeowner is exceeding the standards of a home occupation in accordance with KIBC 17.25.090 A -F and to discontinue an unlawful use (vehicle repair); And the homeowner has established and is maintaining a junkyard that exceed the standards of KIBC 17.25.110. Lot is located in the RR1- Rural Residential One zoning district. Lot 4A, Block 4, Bells Flats Subdivision. The location is 10742 Chiniak Drive and it is zoned RR1 -Rural Residential One. The appellant is Richard Graves. COMMISSIONER TORRES MOVED to grant the appeal and reverse the Notice of Violation dated August 24, 2009. The appeal hearing was opened and closed: Representing borough staff, Bud Cassidy gave a staff report. Given testimony in support of the appeal was the appellant, Lucelia Graves; Greg Egle; Melody Schauf; Fred Waltman; Randy Fisher; Murray Zimmer; and Darren Asuncion. Given testimony in opposition was Casey Janz. Rebuttal was given by Lucelia Graves. During discussion, it was the consensus that the lot had been significantly cleaned up and improved and continues to be moving in the proper direction. All commissioners expressed concern with the borough code. COMMISSIONER WATKINS MOVED to recess for 10 minutes. VOICE VOTE ONMOTION TO RECESS CARRIED UNANIMOUSLY November 18, 2009 P &Z Minutes Page 3 of 9 s 1 CHAIR KING reconvened at 10:30 p.m. 1 In response to CHAIR KING'S inquiry of what the consequences are if this appeal is overturned and if there will be a fine Cassidy stated any decision that you make can be appealed by either party. In response to COMMISSIONER TORRES' inquiry regarding if there are any monetary fines or anything if this appeal is overturned Cassidy stated what needs to be determined is in what state is the condition of the property in today. There has been a fair amount of cleanup but the question is does the cleanup meet the standards of the code. It's the inoperable vehicles, parts, and tires and such that are outside. In response to CHAIR KING'S inquiry who and how is it determined if it is junk Cassidy stated staff's role is we have to make a stand but what is operating today may not be tomorrow but that's a call staff has to make. It was the consensus that it is a poorly written borough code but it is the code and we have to rule on the existing code. COMMISSIONER WATKINS expressed if we follow the code every construction site for every building project in town is in violation because all the material is junk. COMMISSIONER RYSER and COMMISSIONER KERSCH also did site visits and found the property to be much improved but we are here to discuss what the code rule is. COMMISSIONER WATKINS stated he is having a hard time with a upholding the violation when the borough is committing the same kind of violation with a bigger safety hazard in the same area with the brush pile burying cars and garbage. Cassidy said it is property controlled by the Womens Bay Fire Department and Womens Bay Service District, and the borough is not directly involved with the property. ROLL CALL VOTE ON MOTION CARRIED 4 -1. COMMISSIONER TORRES changed his vote to aye. The ayes were COMMISSIONERS WATKINS, KING, TORRES, and RYSER. The noe was COMMISSIONER KERSCH. COMMISSIONER TORRES MOVED to postpone the Findings of Fact until the December 16 meeting. VOICE VOTE ON MOTION CARRIED UNANIMOUSLY D) Case 10 -004. Request a Recommendation by the Parks and Recreation Committee of proposed "RULES FOR BOROUGH PARKS." The location is various parks on the road system. The applicant is Planning & Zoning Commission Cassidy stated the Parks & Recreation Committee has received a number of complaints regarding the misuse of borough parks. It started with late night parties, bonfires, garbage, and vandalism at Mill Bay Beach Park. The committee agreed the rules should apply to other parks as well and came up with common courtesy rules and requests they be posted at various borough parks. COMMISSIONER WATKINS MOVED to recommend to the Borough Assembly that "Rules for Borough Parks" be adopted in a manner similar to other recreational rules. 1 The public hearing was opened and closed: Mike Sirofchuck, Parks & Recreation Committee Chair spoke in support of the park rules. During discussion, in response to COMMISSIONER WATKINS inquiry if there are any parks where hunting is an overlapped use, Cassidy said he doesn't think so. November 18, 2009 P &Z Minutes Page 4 of 9 H) Letter of Courtesy & Advisory - operating a B&B without operator residing on premises. I) Letter of Courtesy & Advisory rescinding previous letter citing that the storage of fishing gear was occurring without the presence of an owner occupied dwelling. J) Letter of Courtesy & Advisory that property is being used as a food service concession in violation of the R -2 zoning district. K) Letter of Courtesy - Conversion of a business - use without a zoning compliance permit. Cassidy stated this is representative of the kind of work we are doing from an enforcement standpoint. COMMISSIONER TORRES MOVED to accept reports as presented. VOICE VOTE ON MOTION CARRIED UNANIMOUSL Y REPORTS A) Meeting Schedule: • December 9, 2009 work session at 7:30pm in the KIB Conference Room. • December 16, 2009 regular meeting at 7:30pm in the Assembly Chambers. $ B) Planning Commissioner Training Report C) Minutes of Other Meetings • August 11, 2009 Parks & Recreation Committee Meeting Minutes • September 15, 2009 Parks & Recreation Committee Meeting Minutes • October 13, 2009 Parks & Recreation Committee Meeting Minutes COMMISSIONER WATKINS MOVED to accept reports as presented. VOICE VOTE ON MOTION CARRIED UNANIMOUSL Y AUDIENCE COMMENTS Petrina Peterson stated regarding the Earl subdivision Mr. Cassidy stated that the land remains with the owner. The navigable water is public. The applicant then proposed the 40 foot public access easement and will have a plat note for the rights of navigation. She saw it was noted on the revised plat but one concern is on the preliminary plat. The land below the mean high water would belong to the State and to that determination be made according to the staff report regarding the Coastal Management Plan under Policy Hl- Protection of Recreation Resources and Uses, the staff report said the consistency found that it was consistent. Peterson disagrees because in the consistency being agreed with it says "the project is located on private land that is not subject to public recreational activities, no closure or adverse impact to public waters is anticipated as a result of this request." Looking further in the code it says access through water bodies shall be maintained. In item #2 is "bridges must be constructed at least 4 feet above the mean high water mark so she believes there is a conflict between the Coastal Management applicable policies and the Alaska Statute 38.05.128 regarding obstructions to navigable water. She gave handouts to Cassidy and the commission. Vicki Kluever stated we have been waiting 4 hours to be heard. She flew in for this meeting and can't attend the December meeting. Kluever said she appreciates the concern about if anyone can make the next meeting but you didn't ask us. She thanked the commission for sitting and listening to everyone's concerns. Kluever believes staff's recommendation to postpone was premature because the appellant's reconsideration request made 4 specific comments about errors on the plat and staff's recommendation to postpone was based on only one. The code is vague in some areas and black and white in others and in this particular area she believes it is very vague. The proposed plat has 31 discrepancies between directional and distances when it's November 18, 2009 P &Z Minutes Page 6 of 9 compared to its original parent parcel. Those discrepancies may have led to discrepancy in total acreage between the 6 proposed lots and the parent parcel which is 33 acres in round numbers. In round numbers, those 6 proposed lots total 35 acres and that is a big discrepancy. The burden of proof is on the surveyor and the surveyor made those mistakes so the burden of proof then falls on the people who own those lots. You have potentially 6 owners and 2 adjacent owners; potentially 8 parties that will end up in boundary disputes. Another point the appellant's made was that 3 of the lots in the middle don't have the minimum width requirements. When you enlarge those lots to make them meet the minimum width requirements something has to give somewhere else which means the remaining 2 or 3 lots have to shrink. One of those lots is already (inaudible). The burden of proof should not be on us. Lila Schwantes stated at the last public hearing there was a plat submitted that we didn't have the opportunity to review and the acreage was in excess of the amount that was supposed to be contained in lot 3. It was in excess of 2 acres larger which this goes to criteria #1, a clerical error. She also referred to KIBC 16.50.030 that states the requirement for all new subdivisions need to have a boundary survey which has not been done. She feels if the surveyor had done this accurately and according to borough code we wouldn't be here now. The boundary survey is really critical and needs to be done. She also stated the map in the packet does not show that this narrow passage way is part of the issue. Lastly, the survey done by St. Denny states that he used the 1995 survey of Roy Ecklund and did not include the survey of the exterior boundary. These 3 critical items need to be addressed. Janet Wente stated her other Bells Flats neighbors insulted her tonight. A lot of us like to have nice homes and look at the nice environment because it is beautiful in the Flats unless you look really close at certain lots. Unfortunately, Janz has to look at it every day. When Wente picked Janz up last week Wente seen from Janz driveway the same stuff sitting there that was sitting there the month before, the month before that, and the month before that. From listening to the commission she feels the commission voted against their own code tonight and she is disappointed in that. The commission let all those people think that we're all content with the status quo and we're not going to be moving forward (inaudible) better. 1 Tom Schwantes stated that this appeal (S10 -001 Reconsideration) should have been approved and he's disappointed that the commission didn't hear it tonight. He feels there were mistakes made at the last meeting when this was approved and he doesn't think all the information that the commission should have had was given to them by the borough, specifically this section 16.50.030. The borough was obviously aware of that and it is stamped on the plat that requires a boundary survey and it was not done, it states on the plat that St. Denny used the meander lines from the 1995 survey. There's several documents that indicate that the mean high water is somewhere between 7.6 (Army Corp of Engineers) and 8.1 (NOAA charts), and the State of Alaska DEC information that says that particular area has a mean high tide of 8.1 foot. Schwantes just received information from DNR that says "the Laurel L. Olsen native allotment conveyance is bounded by the mean high water, this line as depicted in the 1980 BLM plat is a crude approximation and in fact it was not based on a field survey but rather USGS quad maps. The actual mean high water boundary is determined using survey procedures set out in the State regulations and common law. I'm attaching a paper which explains the detail and the survey should follow these as a minimum standard. It then goes on to say the Roy Ecklund survey of 1995 may have been done consistent with these procedures but it does not specify. I have not analyzed the information in the letters to the borough, and then it says specifically these provide insertions including photographs that the narrow area must be below mean high water." We have been arguing all along that this area is below mean high water and that's what this says. He feels it needs to be revisited. We've been in touch with Representative Austerman, Scott Ogen with DNR, and Mr. Cox. Mr. Austerman is going to make a request to DNR to come in to do a November 18, 2009 P &Z Minutes Page 7 of 9 In response to CHAIR KING'S inquiry of how the Parks & Recreation Committee would feel if the commission added no shooting to the list, Sirofchuck stated he thinks the committee would agree that shooting in parks is inappropriate. COMMISSIONER WATKINS MOVED to amend the Parks Rules to include "no shooting." PARK RULES Exercise Safe, Courteous Behavior Quiet Hours 10:00 p.m - 6:00 a.m. Dispose of Trash Properly No shooting ROLL CALL VOTE ON MOTION TO AMEND CARRIED UNANIMOUSLY ROLL CALL VOTE ON AMENDED MOTION CARRIED UNANIMOUSLY OLD BUSINESS There was no old business. COMMISSIONER TORRES MOVED to extend the meeting deadline until 11:30 p.m. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY NEW BUSINESS A) Request for reconsideration, per KIBC 16.90.010 A, of Case S10 -001. An approval by the Commission of a preliminary plat according to KIBC 16.40, subdividing Native Allotment AA7118, Parcel A, Lot 3, T2OS R21W, Sections 26 & 35, Seward Meridian and creating Lots 1 - 6, Laurel Louise Earl Subdivision. The location is Larsen Island Lot 3 and it is zoned C- Conservation. The applicants are Martha Randolph, Lila Schwantes, and Myrtle Olen. Cassidy stated he recommends the commission postpone this case. A State DNR surveyor, Mr. Jennings has raised the issue of the technical issue of the determination of mean high water. We were looking for evidence from another surveyor saying that the work previously done is in error. Jennings led Cassidy to believe that there probably is an issue here. Cassidy encouraged St. Denny to contact Mr. Jennings and until that discussion takes place Cassidy recommends postponement. COMMISSIONER TORRES MOVED to request to postpone the reconsideration of Case 510- 001 until the December 16 regular meeting. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY COMMUNICATIONS A) Letter of concern by landowner about the use of business zone land for an industrial use on Near Island. B) Request for a Zoning Certificate to clarify the zoning of a parcel. C) Letter of Courtesy & Advisory - need for Zoning Compliance Permit for a residential structure - Larsen Island. D) Letter of Courtesy & Advisory - need for Zoning Compliance Permit for a residential structure - Larsen Island. E) Letter of Courtesy & Advisory - need for Zoning Compliance Permit for a residential structure - Larsen Island. F) Letter of Courtesy & Advisory - need for Zoning Compliance Permit for a residential structure - Larsen Island. G) Notice of Violation - Conversion of a four plex into a five - plex without a Zoning Compliance Permit or building permit. November 18, 2009 P &Z Minutes Page 5 of 9 Title Survey to establish mean high tide. That is the information that you should have had and with that information this plat would not have been approved. He also said he is one of the Bells Flats residents and he has to apologize to the commission for the remarks that were made this evening. COMMISSIONER WATKINS MOVED for a 15 minutes extension of the meeting. VOICE VOTE ON MOTION CARRIED UNANIMOUSLY Susan Payne stated her and her husband support the appellant's issue of mean high water. It's very important in the determination of lot size and as you have heard tonight there is some discrepancy between the old plat and the new plat, 33 acres to 35 acres. It all bases on this mean high water mark and everything under mean high water is State land so it's not borough land or Laurel Earl's land. This was the preliminary plat that was handed out when the subdivision was announced and this one was another that was sent out by email after that that, and her concern now is that in this time this month he will put out yet another plat and we need to be able to review the information on that. Please make sure that comes to us by mail or email. Another issue is that her husband received a Letter of Courtesy & Advisory regarding the property at Anton Larsen which we did not receive the letter via mail. We heard about it from borough personnel and after we took care of that business we realized we didn't have a copy of the letter so we got a copy via email from Martin Lydick. The letter says that we are C- Conservation which we are not, we are RRl. The other people who received letters are in Conservation. Payne said to be pro - active, Cassidy said these letters don't come out unless there is a complaint filed and she feels that is not fair and requests the borough be more proactive in their notification for requirements for remote properties. All properties should have received notice of what is required when people are building on these remote properties and it should be sent out as a piece of paper with our taxes or when the property changes hands. You could send out a notice saying your remote property doesn't need a building permit but does need a zoning compliance permit. You could also revise the language on the website under building permits where it says a building permit is not required on remote property but it doesn't make any mention of a zoning compliance permit. The City of Kodiak hands out a flyer about what your water, sewer and garbage go to. She reiterated that this case is very important to them. COMMISSIONER'S COMMENTS Bill Kersch agreed with Payne that mail is better. Tonight was a difficult night for all of us. Lori Ryser said she learned a lot at the Planning Commissioner training and it's the type of training you can go back to year after year and learn more from other community experiences. She learned that we aren't the only ones with tough cases and issues with our codes. Tonight was a tough night and a new experience as a commissioner. Casey Janz said it has not been a pleasant evening. She encouraged the borough to look at the complaint based enforcement because what she sees in the cases that we've had on many she voted against the majority because it seems we apply the codes when it supports the person who is having the complaint filed against them if they are building and constructing and moving forward. It will be interesting to see the future of Bells Flats because she feels we just gave license to load her up. Janz also said she learned a lot from the training in Anchorage and appreciated going and also being on the Parks & Rec Committee. Dave King said for the people from Anton Larsen to stay in touch with staff because he doesn't think there will be much done on this case next month. Vicki Kluever said there is an appeal (reconsideration) before your commission and if staff gets involved with new information how does that impact the appeal and is that fair to the appeal. November 18, 2009 P &Z Minutes Page 8 of 9 Cassidy stated what the commission has done is approve a preliminary plat and you folks have read the code and Cassidy thinks they need to read it again because there are things in the code that talks about approximate acreages. It doesn't require exact acreage so he has asked St. Denny not to give him anything because right now we have approval on a preliminary plat not new stuff he's given Cassidy. Even though Payne has one that was emailed out that was probably before we said we can't accept any more information until the preliminary plat decision is final. Your question is if I get new information from Scott Ogen or Jennings, we are all trying to reach the same conclusion and that is the mean high water determination is going to be critical in everything about that plat. We are looking for technical information that says that either past surveys were either erroneous or they were fine during the time they were done that a new mean high water determination has to be done. The critical thing is the mean high water determination so if he gets that information he will pass it on to the commission because it's real critical to the determination of lot size and boundary of the property. Kluever said if it's that critical why doesn't the commission have the opportunity to rule on the reconsideration decision. What has happened with the appellant's is they are in limbo right now and the developer has the authority to move on. Cassidy said the developer can't move on until we finalize this decision on the preliminary plat, it's being reconsidered so it stops the process; it is stayed and can't move forward until this determination of reconsideration is resolved. Martha Randolph said if this new information drastically changes do we then go back to square one and start all over. Cassidy said that is the commission's decision but that's probably a recommendation is that the plat as submitted is not a true representation and would be denied and start from square one. Martha Randolph thanked the commission ss on understanding. for their patience and understandin p P g ADJOURNMENT COMMISSIONER TORRES MOVED to adjourn. VOICE VOTE ON MOTION CARRIED UNANIMOUSLY CHAIR KING adjourned the meeting at 11:45 p.m. KODIAK ISLAND BOROUGH PLANNING & ZONING COMMISSION • By: David King, Chair ATTEST By: Chew Ors C'C S�nn� Sheila Smith, Secretary Community Development November 18, 2009 P &Z Minutes Page 9 of 9