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2010-02-17 Regular Meeting l r Kodiak Island Borough F L MAR 2 2 2010 U Planning Zoning Commission j Minutes BOROUGH CLLERK'S OFFICE February 17, 2010 Assembly Chambers CALL TO ORDER Call to order the February 17, 2010 regular meeting of the Planning and Zoning Commission at 7:33 p.m. ROLL CALL Commissioners present were Brent Watkins, Casey Janz, Dave King, Alan Torres, and Lori Ryser. Excused was Bill Kersch. Community Development staff present was Bud Cassidy and Sheila Smith. COMMISSIONER TORRES MOVED to excuse Bill Kersch. VOICE VOTE ON MOTION CARRIED UNANIMOUSLY APPROVAL OF AGENDA COMMISSIONER JANZ MOVED to approve the February 17, 2010 Planning Zoning agenda. VOICE VOTE ON MOTION CARRIED UNANIMOUSLY APPROVAL OF MINUTES COMMISSIONER RYSER MOVED to approve the January 20, 2010 Planning Zoning Regular Meeting Minutes. VOICE VOTE ON MOTION CARRIED UNANIMOUSLY AUDIENCE COMMENTS AND APPEARANCE REQUESTS There were no audience comments and appearance requests. PUBLIC HEARINGS A) Case 10 -012. Request a variance, in accordance with KIBC 17.195, to allow a 20 by 20 foot addition to a single family dwelling to encroach four (4) feet into the required 10 -foot rear yard setback and three (3) feet into the required 25 -foot front yard setback on an odd shaped and nonconforming lot in the R2- Two family Residential zoning district. The applicants are Chris Lacey Berns. The location is 814 E. Tagura Road and the zoning is R2 -Two Family Residential. Cassidy stated the applicant plans on removing a 1950's style home that's built within the right of way of Tagura Road. Staff recommends approval and staff thinks this variance meets all the requirements to grant a variance that includes the sub standard size of the lot, the irregular shape of the lot, and some of the topographic constraints. COMMISSIONER TORRES MOVED to grant a variance, according to KIBC 17.80 (R2) and K113C 17.195 (Variance), to allow a 20 by 20 foot addition to a single family dwelling to encroach four (4) feet into the required 10 -foot rear yard setback and three (3) feet into the required 25 -foot front yard setback on an odd shaped and nonconforming lot in the R2- Two family Residential zoning district, and to adopt findings contained in the staff report as "findings of fact" for this case. The public hearing was opened and closed: Chris Berns, applicant, spoke in support of the request. A brief discussion. In response to COMMISSIONER WATKINS' question of is there a mechanism, something we should start for looking at that road work, Cassidy replied he thinks we can bring the City Public Works Engineer into the discussion, and if the roads aren't going to be in the right of ways is there any value in eliminating them. February 17, 2010 P &Z Minutes Page 1 of 6 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. Compared with other typical R2 zoned lots, further structural development is significantly constrained by the triangular shape of the lot and the substandard lot size as well as topography caused by the elevation differential between Marine Way on the designated front of the property and Tagura Road at the rear. Topography and the generally substandard size of residential lots in this area have resulted in numerous variances over the years for additions and/or parking decks. Brief research revealed seven variances just within Block 34 of East Addition (Cases 81 -024 and 86 -060 on Lot 2; Case 92 -001 on Lot 8 -9; Case 98 -020 on Lot 11 A; Cases 87 -011 and 90 -071 on Lot 13 and Case 01 -043 on Lots 16 and 17) 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 result in the practical difficulty of disallowing the property owners the option of upgrading their dwelling in a reasonable way. Without a variance, reconstruction of the addition providing comparable living space to other typical single family dwellings would not be possible or economical. Attempting to build only within the designated setback while severely limiting the size and shape of a conforming addition, would also make the construction and design process unnecessarily expensive and complicated. In addition, replacement of the older nonconforming structure with new construction located entirely on the property may remove an unnecessary hardship by providing the property owners access to traditional financing and housing loans heretofore unavailable due to the right -of -way encroachment. 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. The granting of the variance will not result in material damages or prejudice to other properties in the vicinity. The single family use will not change so that density will not increase as a result. There would be no compromise to public health, safety and welfare. On the contrary, the variance can be seen as enhancing public safety and welfare since it will facilitate removal of a significantly encroaching, badly deteriorating structure from the public right -of -way. The City of Kodiak would be enabled to widen Tagura Road, providing better access for the neighbors. 17.66.050 A.4. The granting of the variance will not be contrary to the obiectives of the Comprehensive Plan. Granting of the variance will not increase existing density or alter any permitted land uses, and is not contrary to the objectives of the Comprehensive Plan which designates this area as residential. This would also be consistent with the intention of Title 17 (Zoning) of Borough Code as an element of the Comprehensive Plan to "...permit nonconformities to continue until they are eliminated." (KIBC 17.140) 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 actions of the applicant have not caused the conditions for which relief is being sought by variance. The location of the older structure encroaching the right -of -way was established long before the applicants took ownership. If anything, action undertaken by the property owners to remove the encroaching structure from the right -of -way will alleviate a long- standing problem. 17.66.050 A.6. That the granting of the variance will' not permit a prohibited land use in the district involved. The existing single family use will continue and is a permitted land use in this zoning district. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY B) Case 10 -013. Request an appeal, in accordance with IQBC 17.220, of an administrative determination resulting in the issuance of a Notice of Violation regarding the use of Lot 10, Block 1, Pasagshak Subdivision for a "full service lodge, including room accommodations, meals, guiding and February 17, 2010 P &Z Minutes Page 2 of 6 transport services The appellants request that the Notice of Violation be reversed and the cease and desist order rescinded. CHAIR KING announced the commission shall either affirm or reverse the decision of the community development director in whole or in part. If the commission fails to approve the reversal of the community development department director's decision, that decision is affirmed. COMMISSIONER JANZ MOVED to postpone a decision on case 10 -013 until the March 17th regular meeting to take any additional public input. CHAIR KING announced this is an appeal hearing and only persons who have received written notice of the appeal or submitted written comments on the appeal may present oral argument. Borough staff will have 10 minutes, the appellants will have 10 minutes, persons in support will have 10 minutes, persons opposing will have 10 minutes, and then the appellants will have 10 minutes for rebuttal. The appeal hearing was opened and closed: Testimony was given by: Bud Cassidy reported this case is about the future of development in the Pasagshak Subdivision and what it will look like in the next 10 plus years. Tonight's case isn't so much about the economy and tourism, it's really about the time, public money, and the effort that goes into developing a Comprehensive Plan and the legalities of zoning districts and what you can and cannot do. Leslee Baker (appellant) stated they operate by the code and spoke in support of the appeal. Rick Baker (appellant) stated he had staff put the original zoning compliance into the packet and staff helped him fill it out and it does say B &B on it. He didn't just change the use of the property. He spoke in support of the appeal. Speaking in support of the appeal was: Dale Heath, Skip Bolton, Brad Bonner (phoned in),Tuck Bonney, Mike Hyde (phoned in), Judi Kidder, Adrana Hanko (phoned in), Jim Peterson, Kathy Wilson, Barry Still, Jim Rippey, Steve Faust, Merle Brown, Mark Olsen, Jim Chase, Carma Shay (missed on previously adopted minutes), and the secretary read into the record the statement from Mike Martin. Speaking in opposition of the appeal was: Richard Diemer, and statements from Jesse Wolf and Mary Barber were read into the record by the secretary. Rick Leslee Baker gave their rebuttal in support of this appeal stating the Comp Plan and Coastal Management Plan encourages commercial recreational activities in Pasagshak and the borough should not have made us stop operating. We are allowed a home occupation as guiding for his transport and guiding for his fishing. Why are we being stopped? No one asked if we were serving a dinner meal, nowhere in the code does it say no more than a morning meal. Rick Baker stated he would like to see this not on his dime because he has been Ceased and Desisted for 3 months and even though it says it is stayed after his appeal was filed he's been reminded over and over by Cassidy that he's still under Cease and Desist. This dinner thing needs to be hashed out because Kodiak is not like the rest of the world. COMMISSIONER WATKINS encouraged the public to submit definitions for when we revise the code. He stated we need to work on a mechanism for these Cease and Desist Orders. Unless we have a public safety risk there should be a response time for the defendant before they are implemented. What we are working with is contrary to innocent until proven guilty. He feels Mr. Hyde's letter summed it up best in that his description of just because something is legal in one zoning district it doesn't make it illegal in another. These are things that happen at a lodge but they also fit well as a home occupation. It's a B &B in RR1, they are both legal uses. There seems to be confusion on how many rooms are allowed: formerly it was two, and currently it's five rooms for a B &B and a lodge. During discussion it was the consensus that the Bakers are in compliance with the proper permits. COMMISSIONERS JANZ, RYSER, and TORRES expressed confusion over the Bakers calling it a lodge. It was also the consensus that the definitions need to be revised and the complaint based enforcement needs to be effective. February 17, 2010 P &Z Minutes Page 3 of 6 t ROLL CALL VOTE ON MOTION FAILED UNANIMOUSLY COMMISSIONER TORRES MOVED to overturn the administrative appeal for Case 10 -013 and postpone the findings of fact until the March 17, 2010 regular meeting of the Planning and Zoning Commission. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY COMMISSIONER TORRES MOVED to take a recess. VOICE VOTE ON MOTION CARRIED UNANIMOUSLY CHAIR KING reconvened the meeting at 10:32 p.m. Brief discussion of the motion made and the need to give notice to rescind the motion and provide another. COMMISSIONER WATKINS gave notice that he'd like to rescind the motion adopted February 17"' on Case 10 -013. The commission was in consensus to hold a special meeting before the work session on March 10, 2010. COMMISSIONER WATKINS MOVED to hold a special meeting March 10 at 7:00 p.m. to address Case 10 -013 to address the adopted motion and Findings of Fact. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY COMMISSIONER WATKINS changed the notice already `given to he gave notice that at the March 10"' special meeting he will move to rescind the motion adopted February 17, 2010 relating to Case 10 -013 at the. OLD BUSINESS There was no old business. NEW BUSINESS A) Case 10 -011. A review of the FY2011 -2015 Capital Improvement Projects list. The location is borough wide. Cassidy stated this has to do with how we are going to do the CIP. During discussion COMMISSIONER WATKINS said he'll talk to different folks about setting up a table in their establishments to gather input and get the word out on the CIP. CHAIR KING stated he will donate a booth for the Crab Festival if we can get a spot to set up. Smith stated she started a flyer and will send it to the commission when it's finished and she would like suggestions for flyers of different topics to suit different groups. Judi Kidder stated the biggest problem the Lions Club has with placing bus shelters is zero lot lines and borough boundaries to site these bus shelters. COMMUNICATIONS A) Communications regarding a commission motion to rescind Cassidy said this is asking you how you want to proceed on the issue of the Koniag waiver. It needs to be advertised and noticed correctly and if you want to proceed he suggests taking a commission vote to put it on the agenda to be heard. COMMISSIONER WATKINS said what we talked about at the work session was that this needs to be addressed in the code with some public planning stuff and then that would be the best time to deal with the problems as far as the rescinding the motion. Because we're rewriting the codes soon the timing would be best dealt with in rewriting because one of the first sections we're redoing is this one. That would be the time to address that. COMMISSIONER WATKINS MOVED to extend 30 minutes to finish tonight's agenda and get public comments. VOICE VOTE ONMOTION CARRIED UNANIMOUSLY February 17, 2010 P &Z Minutes Page 4 of 6 Cassidy stated he was thinking of having presentations from Koniag Fish Wildlife at the March 10"' work session. COMMISSIONER TORRES MOVED to accept communications as presented. VOICE VOTE ON MOTION CARRIED UNANIMOUSLY REPORTS A) Meeting Schedule: March 10, 2010 work session at 7:30pm in the KIB Conference Room. March 17, 2010 regular meeting at 7:30pm in the Assembly Chambers. B) Minutes of Other Meetings January 12, 2010 Parks Recreation Committee Meeting Minutes C) Abbreviated and Final Approval Subdivisions COMMISSIONER TORRES MOVED to accept reports as presented. VOICE VOTE ON MOTION CARRIED UNANIMOUSLY AUDIENCE COMMENTS Steve Faust stated there were comments made about whether some of these actions, specifically the Bakers are complaint oriented and said they'd be changed. No, if it's not broke don't fix it. If you do go after all these people that are illegal, which maybe is between 25 -50% may not be above board but nobody's complaining. You are going to wind up shutting some of them down and they aren't going to be able to meet (inaudible) fill a gymnasium. You should leave it as it is. Mel Stephens stated he watched most of the meeting tonight. on the Pasagshak matter. He was impressed by the efforts of the commission to come to a fair resolution within the borough code. He's been watching the Olympics and you missed one fantastic Women's downhill. Lindsay Vaughn won the Gold Medal (inaudible) and several fantastic crashes. The time you spend on these things truly is appreciated by some of us and even some that end up appealing your decisions. Because someone misspoke in making the motion it was clear to him that what was meant was move to overturn the administrative decision and grant the appeal. The person who made the motion moves to clarify the motion and specify that he meant to say that he was moving to overturn the administrative decision and to grant the appeal. (Inaudible) Apparently there's a list of who could talk in this appeal. As an attorney, if he as a citizen wanted to call in and speak on this appeal he doesn't know on what grounds legally could disqualify him. Maybe he was thinking about buying property in Pasagshak so this hearing would have been important to him. It's very different to say the reason we took the action against you is because there was a complaint and there may have been some people who ran into the same problem but there was no complaint and that's why we didn't take action against them in the past. But you can't have a code where I can do anything I want as long as my neighbors don't complain. That is just being arbitrary and capricious. This is not a criticism of Bud Cassidy but tonight he noticed the same thing he's noticed in past appeals, the appeal was from a decision that Bud Cassidy had made and Cassidy was both acting as a party to that in the public hearing with a back and forth kind of like a courtroom and then after the public hearing when the chair was telling the audience no, you can't talk anymore then you were discussing the matter with Cassidy. Cassidy was fair in all this discussion but he almost invited you to overturn. When you address the code rewrite you should address the procedure for appeals from an administrative decision so you don't have the very person whose decision is being appealed from advising you. Judi Kidder thanked the commission for their time and fairness on this. It comes back to refining the code. COMMISSIONER'S COMMENTS Brent Watkins thanked everyone for sticking with it even though there were some procedural things we threw on the pile. Public input needed always. February 17, 2010 P &Z Minutes Page 5 of 6 Lori Ryser said she'll miss next month's regular meeting but not the work session. She thinks it turned out well and it does help having public comments and testimony. Alan Torres said it's been a long night and he apologized for the mis- wording on the motion. Casey Janz said this public process served well to bring this to fruition and it was time well spent. Another busy night was the Parks Rec Winter Trail Users Meeting on February 9 here in the Assembly Chambers. The room was packed all the way out into the hallway. There was a lot of public comment. People came thinking the trails plan is being created to close trails and she hopes they left with the knowledge that it's to identify trails and put a plan together to preserve public access as land gets sold. Dave King apologized for missing the work session last week. He left on the ferry at 5:45 p.m. and it was a rough ride. He stressed how important public input is. He thanked the public. ADJOURNMENT COMMISSIONER JANZ MOVED to adjourn. VOICE VOTE ON MOTION CARRIED UNANIMOUSLY CHAIR KING adjourned the meeting at 11:20 p.m. KODIAK ISLAND BOROUGH PLANNING ZONING COMMISSION B F�yt Dave King, Chair ATTEST By: QZ:5"e n Q51pptm Sheila Smith, Secretary Approved: March 17, 2010 February 17, 2010 P &Z Minutes Page 6 of 6