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1991-05-02 Regular MeetingKODIAK ISLAND BOROUGH Regular Assembly Meeting May 2, 1991 A regular meeting of the Kodiak Island Borough Assembly was held May 2, 1991, in the Assembly Chambers of the Kodiak Island Borough Building, 710 Mill Bay Road. The meeting was called to order at 7:30 p.m. The invocation was given by the Reverend Mark Houglum of St. Paul Lutheran Church followed by the Pledge of Allegiance. There were present: Jack McFarland, Presiding Betty Fitzjearl Gordon Gould Suzanne Hancock Mike Milligan Mary Monroe (arrived at 7:43) Gary Stevens comprising a quorum of the assembly; and Jerome Selby, Borough Mayor Gaye J. Vaughan, Borough Clerk APPROVAL OF AGENDA STEVENS, seconded by MILLIGAN MOTION CARRIED APPROVAL OF MINUTES None. AWARDS AND PRESENTATION A. Employee of the Month B. Proclamation moved to approve agenda as submitted. Unanimous Voice Vote Mayor Jerome Selby presented the Employee of the Month award to Kaye McClain, Engineering /Facilities Secretary. Mayor Selby read a proclamation declaring May 5 through May 11, 1991, as Municipal Clerk's Week and extended appreciation to Gaye Vaughan, Municipal Clerk for the Kodiak Island Borough. Clerk Vaughan accepted the proclamation. Regular Assembly Meeting May 2, 1991 KIBS104343 REGULAR MEETING ROLL CALL APPROVAL OF AGENDA APPROVAL OF MINUTES AWARDS AND PRESENTATIONS EMPLOYEE OF THE MONTH PROCLAMATION Volume XIV Page 99 CITIZENS' COMMENTS A. Agenda Items Not Scheduled For Public Hearing None. B. Items Other Than Those Appearing on the Agenda None. Wayne Coleman, Planning & Zoning Commission representative, depicted the Commission's firm stand on the Board of Adjustment actions on the agenda and requested the Assembly uphold their decisions. Assemblymember Gould announced that the Kodiak Island Hospital Board was meeting May 8, 1991, at 7:00 p.m. at the hospital. The Presiding Officer recessed the regular Assembly meeting and convened the Board of Adjustment Regular Assembly Meeting May 2. 1991 KIBS104344 CITIZENS' COMMENTS COMMITTEE REPORTS COMMITTEE REPORTS BOARD OF BOARD OF ADJUSTMENT ADJUSTMENT Assemblymember Gould asked to be excused as a member of the Board of Adjustment on both appeals because he had been the zoning officer on both cases in the past. Presiding Officer McFarland excused Assemblymember Gould. Assemblymember Fitzjearl asked to be excused as a member of the Board of Adjustment on the appeal of Richard R. Madson. She cited Article 1, Section 7 of the Alaska Constitution and professed she had signed a petition applicable to the appeal. Presiding Officer McFarland excused Assemblymember Fitzjearl. Mayor Selby designated the Presiding Officer of the Assembly, Jack McFarland, to direct the procedures of the hearing. The Presiding Officer outlined the basic procedures the Board of Adjustment members must follow and read from the Kodiak Island Borough Code Section 17.89.030 .f. (_) and (h). Th n Attorney Joel Bolger, was available to answer procedural questions. An appeal by Richard R. Madson of the Planning and Zoning Commission's decision ordering the discontinuation of an unlawful use of land (outdoor storage constituting a junkyard) in an RR- 1- -Rural Residential One Zoning District and Volume XIV Page 100 removal of all junk vehicles (un- registered, inoperable vehicles, trailers, parts and scrap salvage) within sixty (60) days on Lot 5B, Block 3, Bells Flats Alaska Subdivision; 782 Sargent Creek Road and denial of a request for an exception from Section 17.17.020 (Permitted Uses) of the Borough Code to permit junk vehicles (un- registered, inoperable vehicles, trailers, parts and scrap salvage) on a lot in the RR1 -Rural Residential One Zoning District. (Applicant: Richard R. Madson) Charles Wineaarden, attorney for the applicant, requested a continuance as Mr. Madsen was unable to arrive in Kodiak because of the cancellation of flights due to weather. He reminded the Board that Mr. Madson was available at the last meeting and had intended to be available at this meeting. Presiding Officer McFarland ruled that Mr. Madson's appeal was postponed until the next regular meeting. Assemblymember Fitzjearl rejoined the Board of Adjustment. An appeal by James A. Crane and Logan Porter - Crane of the Planning and Zoning Commission's denial of a request for an exception from Section 17.17.020 (Permitted Uses) of the Borough Code to permit the continued use of a second, non - permitted single - family dwelling unit on a lot in the RR- 1- -Rural Residential Zoning district located on Lot 3, Block 3, Island Vista Subdivision, 2105 Harbor Way. (Applicant: James A. Crane and Logan Porter - Crane) Linda Freed, Director of the Community Development Department of the Kodiak Island Borough, presented photographs of the property and building in question from the record of the Planning and Zoning Commission hearing. She read from Section 17.17.020 of the Kodiak Island Borough Code. She drew attention to a brief prepared by staff dated April 16, 1991, that answered the points in the appellant's appeal notice and highlighted the sections pertinent for consideratinn Wayne Coleman, Planning and Zoning Commissioner, did not have anything further to add to Ms. Freed's report. Susan McLean, attorney representing the applicants, submitted an original notarized affidavit from David Regular Assembly Meeting May 2. 1991 KIBS104345 Volume XIV Page 101 Watkins, the previous property owner. She had requested, from Planning and Zoning, a copy of the zoning code that existed in 1980 but did not receive a copy before the hearing on February 20th. She submitted copies of the rescinded code that stated duplexes were allowed at that time. She supplemented the record with the tax assessment from the Borough Assessor which characterized the cabin as a sleeping room. She said the Cranes were appealing on the grounds that their requested exception did not adversely impact other properties in the neighborhood, was not inconsistent with the current uses or existing uses of the land, that the existence of the structures as they exist now was in part due to the fact that Planning and Zoning did not adequately inform the previous property owner of their rights, and that the use was not inconsistent with the general purposes of Title 17. She gave a history of the property use. She pointed out that in 1980 through 1982 non - conforming uses were grandfathered under the Kodiak Island Borough Code. She spoke to the concern that Mr. Shawn Dillon expressed on water contamination by the septic system and pointed out the system was a self- contained self - compost septic system and was not polluting the water. She summarized the Crane's position by saying that the proposed exception was not an exception but an attempt to exercise grandfathered rights at the time Mr. Watkins applied for the original building permit and no surrounding property owner was adversely impact; therefore, the decision of the Planning and Zoning Commission should be rescinded. Shawn Dillon, 2100 Harbor Way, opposed granting the appeal and cited his objection to a road on a piece of adjoining property being used as an access road to the accessory building, a pathway cleared through a greenbelt by the appellants, and affluent from a drainfield leaching into his drinking water. James Crane, owner of the property, reiterated Ms. McLean's statement that the cabin was assessed for tax on the full dimension of the sleeping quarters. He emphasized he had never cut any trees on his property or in the greenbelt. At the time he purchased the property, he perceived the guesthouse as a plus for the property. Ke thought the cabin was aesthetically pleasing and blended with the area. He argued a point -by -point rebuttal to the Planning and Zoning Commission's decision. He presented a list of signatures of residents in the area voicing non- objection to the property use. Regular Assembly Meeting May 2. 1991 KIBS104346 Volume %:V Page 102 The Assemblymembers held discussion with Mr. Crane and Ms. Freed. Ms. Freed concluded that there were no extinguishment of grandfather rights because the cabin was not grandfathered. She maintained that in 1982 it was illegal to have two dwellings on a lot and, subsequently, the building permit would not have been issued unless the old dwelling unit was made legal prior to the new dwelling unit being occupied. She called attention to the fact that altering or adding on to a non - conforming structure caused loss of grandfather rights according to the Code. Discussion ensued on the self- contained, self- compost septic system, the assessment by the Borough Assessor, and the use of the accessory building. Susan McLean contended that the applicant's original appeal requested conditional use of the building as temporary sleeping quarters until the present occupant moved and then use of the building for a guest house and studio. FITZJEARL, seconded by MILLIGAN McFARLAND, seconded by FITZJEARL Regular Assembly Meeting May 2, 1991 moved to recess into executive session for deliberations regarding the appeal by James A. Crane. MOTION WITHDRAWN Second concurred. HANCOCK, moved to grant the seconded by FITZJEARL appeal. Assemblymember Hancock noted that because of the changes in the code over the years, Mr. Crane should not be the victim as he bought the property in good faith. Conditional use was discussed by the Assemblymembers. moved to amend by addition of the conditions: (1) must have owner occupancy certificate, (2) must meet building codes as anal i nA 4aAs.. ..A 1 aa.0 \ ,a current use for no more than two years. Presiding Officer McFarland examined his amendment and the opportunity of the building becoming a family dwelling unit if the appeal was granted without conditions. KIBS104347 Volume XIV Page 103 The intent of the appeal was contemplated and conditions that could be placed on the use of the building were explored. MOTION WITHDRAWN FITZJEARL, seconded by MILLIGAN VOTE ON MOTION TO AMEND Ayes: Noes: MOTION CARRIED VOTE ON MOTION AS AMENDED Ayes: Noes: MOTION CARRIED MILLIGAN, seconded by FITZJEARL VOTE ON MOTION Regular assembly Meeting May 2, 1991 Second concurred. moved to amend by stipulating that if and when the property transfers ownership, the property reverts u ante. RACk A the present code4 i ev_ie it the following conditions recorded: (1) Wade Watkins, present occupant of the accessory building, allowed to live in the building for no longer than two years; (2) the building was not to be used for a rental, only for guest house; and (3) if the property is sold, reverts to one dwelling with accessory building. Fitzjearl, Hancock, Milligan, Monroe, Stevens, McFarland None Unanimous Hancock, Milligan, Monroe, Stevens, Fitzjearl McFarland 5 Ayes, 1 No moved to postpone Findings -of -Fact until the May 16, 1991, regular meeting. Unanimous Voice Vote KIBS104348 Volume XIV Page 104 Presiding Officer McFarland adjourned the Board of Adjustment and reconvened the regular meeting. The Presiding Officer called for a five minute recess. PUBLIC HEARING PUBLIC HEARING All ordinances and resolutions presented at this meeting were introduced by title only and copies had been made available to the public. A. Ordinance No. 91 -03 Adopting a Severance Tax ORDINANCE Upon Natural Resource Extraction. NO. 91 -03 Presented for consideration was Ordinance No. 91 -03 which levied a tax on the business of extracting minerals, fish, rock, sand, gravel and timber in the amount of the mill levy. GOULD, moved to adopt seconded by FITZJEARL Ordinance No. 91 -03. Mayor Selby responded to the request for a staff report and recounted the several months of study by staff and Assembly. He expounded on a recommendation for a three -year tax policy change to expand the base from real and personal property tax only by incorporating other types currently not used by the Borough. Assemblymember Stevens disclosed that it was the Assembly's intention to have further public hearing on May 16th. The Presiding Officer called for public testimony. Barry Still, representing Brechan Enterprises, opposed the gravel portion of the ordinance and listed his reasons: (1) it would cost the industry an inordinate amount to produce the paperwork on the four pits; (2) the majority of aggregate removed came from a Borough -owned pit where an 85 cent royalty was paid; (3) the government was the largest consumer of aggregate; and (4) local contractors were not always successful in obtaining monies owed by an out -of -town Jim Carmichael, General Manager for Afognak Native Corporation, spoke specifically to the severance tax as it applied to timber. He listed four concerns with the ordinance as drafted: (1) the net revenue or profits rather than gross sales; (2) the property tax on personal property paid in addition to a Regular Assembly Meeting May 2. 1991 KIBS104349 Volume XIV Page 105 severance tax; (3) the natural resource moratorium that would be lifted in 1992, which would expose a tax lability on land and timber added to the severance tax; and (4) confidentiality. He concluded his remarks by saying the private Native corporation expected to pay a fair share of taxes within the Borough and an equitable share throughout the timber industry. The Presiding Officer closed the public hearing and reconvened the regular meeting. Assemblymember Fitzjearl discussed with Mayor Selby the placing of the severance tax on the ballot in October. Mayor Selby reiterated that spreading the tax base was a positive factor in holding the mill levy down. Assemblymembers discussed the severance tax with the Mayor. GOULD, seconded by STEVENS VOTE ON MOTION TO POSTPONE Ayes: Regular Assembly Meeting May 2. 1991 moved to postpone Ordinance No. 91 -03 to May 16, 1991 for an additional public hearing. Milligan, Monroe, Stevens, Gould, Hancock, McFarland Noes: Fitzjearl MOTION CARRIED 6 Ayes, 1 No MESSAGES FROM THE BOROUGH MAYOR MESSAGES FROM MAYOR Mayor Selby reported on discussions he had with legislators, commissioners, and staff; testifying on committee hearings; and meeting with the Borough's lobbyist while he was in Juneau. OLD BUSINESS OLD BUSINESS A. Ordinance No. 90 -34 Establishing a Permit System ORDINANCE ..t: V Road Rights- NO. 90 -34 for Excavation and VV11�J 1r141a.1 ( . .. ........ .. -p - - -- of -Way in Borough Road Service Areas. Ordinance No. 90 -34 was originally introduced October 4, 1990. A public hearing was held November 1, 1990, at which time it was postponed. It was postponed again December 20, 1990, to allow a user -group to meet and work on a rewrite. The rewrite was KIBS104350 Volume XIV Page 106 presented to the Assembly at the March 21, 1991, meeting and substituted for the original ordinance. A public hearing was held on the rewrite on April 4, 1991, at which time the utility companies voiced objection to certain sections. GOULD, seconded by FITZJEARL Assemblymember a request from VOTE ON MOTION MOTION CARRIED NEW BUSINESS A. BID AWARDS None. B. RESOLUTIONS moved to postpone Ordinance No. 90 -34 to June 20, 1991. Gould indicated his motion represents staff for additional time. Unanimous voice vote 1. Resolution No. 91 -17 Supporting the Funding Proposal for Public Education Efforts Related to Environmentally Responsible Oil and Gas Development of the Arctic National Wildlife Refuge Coastal Plain. Presented for consideration was Resolution No. 91 -17 which supported the Governor's proposal for a public education effort related to environmentally responsible oil and gas development in order to ensure that Congress and the public make informed decisions about this important issue. HANCOCK, moved to adopt seconded by STEVENS Resolution No. 91 -17. FITZJEARL, MOTION DIED Lack of second. Mayor Selby was asked for a staff report. He said the Assembly was on the record in support of environmentally responsible oil and gas development on the ANWR Coastal Plain. Regular Assembly Meeting May 2, 1991 moved to amend Resolution No. 91 -17 to add the word "Governor" to the title before the words "Funding Proposal ". KIBS104351 NEW BUSINESS BID AWARDS RESOLUTIONS RESOLUTION NO. 91 -17 Volume XIV Page 107 VOTE ON MOTION TO ADOPT Ayes: Noes: FITZJEARL, seconded by MILLIGAN Assemblymember Milligan present to the Assembly proposal. Regular Assembly Meeting May 2. 1991 Monroe, Stevens, Fitzjearl, Gould, Hancock, McFarland Milligan MOTION CARRIED 6 Ayes, 1 No 2. Resolution No. 91 -18 Endorsing the Proposal to Establish an Spill Prevention and Response Center for Lower Cook Inlet in Seldovia. Presented for consideration was Resolution No. 91 -18 which was introduced by Assemblymember Milligan, a member of the Cook Inlet Regional Citizens Advisory Committee, and requested by local members of the CIRCAC. The proposal was their vision of what was necessary in order to prepare for an effective immediate response to a spill or to prevent a spill by assisting a disabled vessel. moved to adopt Resolution 91 -18. asked Tricia Gartland to a summary of CIRCAC's Tricia Gartland said the proposal would establish a prevention response center in Lower Cook Inlet, which directly affects the Kodiak area. Assemblymember Gould applauded the local citizens for staying active in protecting Kodiak. VOTE ON MOTION MOTION CARRIED Unanimous Voice Vote C. ORDINANCES FOR INTRODUCTION 1. Ordinance No. 91 -04 Amending KIBC 4.15.040, r d o f vacancies (Service Area Board Supervisors). Presented in first reading was Ordinance No. 91 -04, which amends the procedures for filling vacant seats on service area boards. It changes current code by providing that the clerk be notified of the vacancy. The vacancy would be advertised at least twice in the KIBS104352 RESOLUTION NO. 91 -18 ORDINANCES FOR INTRODUCTION ORDINANCE NO 91 -04 Volume XIV Page 108 newspaper. The service area board would make a nomination to the assembly, who would appoint from those who applied. The other significant change was that the appointment would be for the remainder of the term, not until the next election. HANCOCK, moved to advance seconded by STEVENS Ordinance No. 91 -04 to public hearing on May 16, 1991. Assemblymember Fitzjearl explained that vacancies on service area boards would be filled expeditiously if this ordinance was adopted. VOTE ON MOTION MOTION CARRIED Unanimous Voice Vote 2. Ordinance No. 91 -05 Amending KIBC ORDINANCE 15.04.020, Building Codes. NO. 91 -05 Presented in first reading was Ordinance No. 91 -05 which would delete from the code the requirement that copies of each technical regulation regarding building codes be kept in the clerk's office. The building inspector's office had copies of all current manuals. MONROE, moved to advance seconded by STEVENS Ordinance No. 91 -05 to public hearing on May 16, 1991. Clerk Vaughan explained that the sentence in the code requiring building code manuals be kept on file in the clerk's office would be deleted. VOTE ON MOTION MOTION CARRIED D. OTHER ITEMS Regular Assembly Meeting May 2. 1991 Unanimous Voice Vote 1. Recommendations from Personnel Advisory Board. The Personnel Advisory Board had updated the Personnel Rules & Regulations by adding, deleting, and updating position descriptions and Schedule II Class Titles and Pay Ranges of the Personnel Rules & Regulations. KIBS104353 Volume XIV Page 109 GOULD, seconded by STEVENS It was explained that the recommendations of the Personnel Advisory Board would be forwarded to other boards and commissions for review and recommendation. VOTE ON MOTION MOTION CARRIED Unanimous Voice Vote INFORMATIONAL MATERIALS (No action required) A. B. C. MINUTES OF OTHER MEETINGS moved to acknowledge receipt of the Personnel Advisory Board's recommendations. 1. Kodiak Island Hospital Advisory Board Meeting of March 27, 1991. 2. Kodiak Island Mental Health Center Advisory Board Meeting of February 25, 1991. 3. KIBSD Special Meeting of April 15, 1991. REPORTS 1. KIBSD March 1991 Report of Revenues and Expenditures. OTHER None. CITIZENS' COMMENTS None. ASSEMBLYMEN'S COMMENTS Assemblymember Milligan commented on ANWR and said it was a good use of public funds to educate the public but was opposed development of ANWR. Assemblymember Hancock asked the public to stay involved in the budget process in order for the Assembly to make the best decisions. Assemblymember Monroe attended Kodiak College graduation and was impressed that it signified an institution in Kodiak that was a very important part of the community. She reported on discussions by the Mental Health Advisory Board on position upgrades received from the Personnel Advisory Board. The Mental Health Advisory Board had recommended the Regular Assembly Meeting May 2, 1991 KIBS10435 INFORMATIONAL MATERIALS MINUTES OF OTHER MEETINGS REPORTS OTHER CITIZENS' COMMENTS ASSEMBLYMEN'S COMMENTS Volume XIV Page 110 Assembly pass a resolution in support of Duncan's bill on the Mental Health Lands Trust settlement. Assemblymember Stevens met with the Emergency Services Council on the Karluk water and sewer problem. The Council declared an emergency and funding would be available through the State and Federal government. Assemblymember Fitzjearl requested that the Gilbert Wilson complaint received by the Assembly be placed on a future agenda. Assemblymember Gould commented on the appeal of the Planning & Zoning decision. Presiding Officer McFarland spoke to the severance tax ordinance and appreciated comments during the public hearing. The Presiding Officer announced that the Assembly would meeting in work session on Tuesday, May 7 at 7:30 p.m. and Thursday, May 9 at 6:30 p.m. in the Conference Room, and the next regular Assembly meeting Thursday, May 16 at 7:30 p.m. in the Assembly Chambers. Assemblymembers Gould, Milligan, and McFarland asked to be excused from the Tuesday work session as they would be participating in the halibut opening. Assemblymember Stevens asked to be excused from the Thursday work session because he would be out of town. There being no further business to come before the assembly, taco meeting adjourned at 11:12 p.m. ATTEST: Ciat Boroug lerti.— Regular Assembly Meeting May 2. 1991 KIBS104355 Volume XIV Page 111