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1997-05-01 Regular MeetingKODIAK ISLAND BOROUGH Regular Assembly Meeting May 1, 1997 A regular meeting of the Kodiak Island Borough Assembly was held May 1, 1997 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 Father Roger Boucher of the Star of the Sea Chapel, followed by the Pledge of Allegiance. There were present: Robin Heinrichs, Presiding Tom Abell Tuck Bonney Mike Milligan Wayne Stevens absent: Bob Johnson Gary Stevens comprising a quorum of the Assembly; and Patrick Carlson, Acting Mayor Donna Smith CMC /AAE, Clerk Judi Nielsen, Deputy Clerk Assemblymembers Bob Johnson and Gary Stevens were out of town and asked to be excused. MILLIGAN, seconded by BONNEY VOTE ON MOTION TO EXCUSE MOTION CARRIED Unanimous voice vote APPROVAL OP AGENDA APPROVAL OF W. STEVENS, moved to approve the AGENDA seconded by MILLIGAN agenda. VOTE ON MOTION TO APPROVE MOTION CARRIED Unanimous voice vote Regular Assembly Meeting May 1, 1997 moved to excuse Assemblymembers Johnson and G. Stevens. REGULAR MEETING ROLL CALL Volume XXII Page 201 APPROVAL OF MINUTES APPROVAL OF MINUTES A. K.I.B. Assembly Meeting of April 3, 1997. BONNEY, seconded by MILLIGAN VOTE ON MOTION TO APPROVE MOTION CARRIED AWARDS AND PRESENTATIONS A. Employee of the Month moved to approve the minutes of April 3, 1997. Unanimous voice vote Acting Mayor Patrick Carlson presented the Employee of the Month Award to Jeri Jensen, local Child Care Assistance administrator. CITIZENS COMMENTS A. Agenda Items Not Scheduled For Public Hearing None. B. Items Other Than Those Appearing on the Agenda None. COMMITTEE REPORTS Clarence Selig, Planning and Zoning Commissioner, was available to answer questions of the Board of Adjustment. Assemblymember Bonney reported that members of the Mental Health Center Advisory Board were concerned that the Board was not consulted about reductions in staff at the Center. He said he explained to the Board that 2/10 of a position and $140,000 were added in the budget. Phil Cline, Providence Kodiak Island Medical Center administrator, thanked the Assembly for their support. He was happy to report that financially the hospital was performing above national averages. There was a smooth and complete transition from Kodiak Island Hospital and Care Center to Providence. Karl Short, Borough finance director, worked well with Mary Munk, hospital finance director, and Mayor Selby responded favorably in discussions with Regular Assembly Meeting May 1, 1997 AWARDS AND PRESENTATIONS EMPLOYEE OF THE MONTH CITIZENS' COMMENTS COMMITTEE REPORTS Volume XXU Page 202 executives at Providence. He was pleased with the BOARD OF cooperative spirit. ADJUSTMENT BOARD OP ADJUSTMENT * * * * * * * * * * A. Appeal of Planning & Zoning Commission Case No. 96 -021 Conditional Use Permit to Permit a Log Transfer Facility, Including In -water Transfer of Logs, in the C- Conservation Zoning District Generally Located Within Section 6, T30S, R2OW, Near the Mouth of Myrtle Creek in Kalsin Bay. (Applicant: Leisnoi Incorporated) (Appellant: Leisnoi Incorporated) * * * * * * * * * * Presiding Officer Heinrichs recessed the regular meeting and reconvened the Board of Adjustment appeal hearing. He read the appeal and explained the role of the Assembly as a quasi - judicial board and the procedures set forth by Borough Code. Assemblymember Abell requested a ruling on a possible conflict of interest as his wife was a shareholder in the Afognak Native Corporation. Also, he was a shareholder and a member of the board of directors of a freight business that supplied the logging operation and freighted the logs. Responding to Presiding Officer Heinrichs, Assemblymember Abell explained that Afognak Native Corporation had no ties with Leisnoi. Also, his relationship with the freight company was not his main source of income. The Board of Adjustment agreed with Presiding Officer Heinrichs' ruling that there was no conflict of interest. Due to the large attendance, Presiding Officer Heinrichs explained the time restrictions established by code as follows: 1 Borough staff, including commission representatives: 10 minutes to present the decision and to set forth the evidence and reasons relied upon for the decision. 2. Appellant: 10 minutes 3. Private person supporting the appeal: 10 minutes Regular Assembly Meeting May 1, 1997 Volume VIII Page 203 4. Private person opposing the appeal: 10 minutes 5. Appellant, for rebuttal: 10 minutes Presiding Officer Heinrichs asked the Board to hold their questions until all testimony was completed. If testimony was not completed by 11:00 p.m., it was his intent to allow the Board to ask questions of those in attendance. 1. Borough Staff: Linda Freed, Community Development Department director, provided a history of the Commission's review and decision process for the Log Transfer Facility (LTF). After the December 18, 1996 public hearing, staff prepared a draft report with two recommendations to the Commission: 1) the project did not meet Borough code criteria to grant a conditional use permit (CUP); and 2) the request was not consistent with the policies of the Kodiak Island Borough Coastal Management Program (KIBCMP). The Commission, with the concurrence of the applicant, postponed action to allow a public hearing in Chiniak. After public testimony and added information from the state and federal permitting processes, staff recommended the Commission consider approving the project if the policies of the code and the KIBCMP for a CUP could be met. On January 24, 1997 the Commission denied the CUP and recommended that the state find the project inconsistent with the KIBCMP and the Alaska Coastal Management Program (ACMP). She read from the KIBCMP that maintenance and enhancement of fisheries shall be given priority consideration over shoreline use proposals that might adversely impact fish habitat, migratory routes, and the commercial harvest of fish. The Kodiak Fish and Game Advisory Committee forwarded their determination that the LTF would disrupt established commercial and subsistence fisheries as well as damage gear and habitat. There was a need to preserve the value of the surrounding area, fulfill code requirements, maintain public health, and provide setbacks and buffers. She remained to answer questions. In response to Presiding Officer Heinrichs, Commissioner Selig said he had nothing to add. 2. Appellant: Marty Parsons, Leisnoi representative, introduced Regular Assembly Meeting May 1, 1997 Volume XXII Page 204 members of Leisnoi who were involved in the findings for rebuttal after the CUP was denied. He said the Commission made a decision without adequate evidence. Leisnoi attempted to submit evidence about enhancement and maintenance of fish habitat in Kalsin Bay if the project was approved. He referred to maps in the chambers to identify the area where logs would be placed in the water and towed to the logging ships. The 200 foot wide shipping lane, the maneuvering radius for ship moorage, and the booming grounds took up less than two percent of Kalsin Bay. The shipping was scheduled so ships would be in the Bay less than 15 percent of the time. In Southeast Alaska, Dora Bay received 39 log ships per year, and that was 300 percent more than that scheduled for Kalsin Bay. He said Dora Bay maintained a healthy habitat. He wanted the Assembly to review Leisnoi's new information. He considered the project to be consistent with the KIBCMP and Borough Code. He remained to answer questions. 3. Private persons supporting the appeal: There were no private persons supporting the appeal. 4. Private persons opposing the appeal: Vikki Jo Kennedy urged the Assembly to uphold the Commission's decision. She felt the LTF was bad for Kalsin Bay. She read a letter of opposition written by Brad Stevens that was published in the Kodiak Daily Mirror. Mike Patitucci felt the LTF would negatively impact his livelihood. Barry Still, Lash Corporation representative, said the deep water project Lash was developing for large ships was 80 -90 percent complete. He thought this was an alternative place to load logs onto ships. pave Odell was concerned that logs would break loose in open water. He thought ballast water would affect the pristine beauty of Kalsin Bay. As a sport and subsistence fisherman, he did not want his livelihood jeopardized. yrnest Scheidler said he just heard that written comments had to be submitted by 5:00 p.m. this day, but many people were under the impression that written testimony could be submitted tonight. He was concerned that unresolvable navigation problems would limit resident access to a subsistence area and Regular Assembly Meeting May 1, 1997 Volume 74XIII Page 205 ballast water would spread bacteria and disease in marine life. Virginia Adams, Northwest Set Netters Association president, said all who testified opposed the appeal. She did not want traditional fisheries displaced. In response to Presiding Officer Heinrichs, Clerk Smith read from the Board of Adjustment notice that noted the deadline for receipt of written comments. Judy micas said many people were interested in Leisnoi attempting to negotiate a sale of their land to the Exxon Valdez oil Spill Trustee Council. Woody Koning said he attended a Prince William Sound Advisory Council /Fish and Wildlife Service workshop. Alaska marine life was susceptible to cholera bacteria contamination, and he was concerned about a parasite that made crabs infertile. He did not want the eco- system destroyed. Jim VanAtta spoke of the excellent response to the near grounding of a vessel in Danger Bay that carried ballast water and diesel fuel. He said Kalsin Bay winds averaged over 20 knots with peaks of 50 -60 knots. Kristen Stahl - Johnson, fisheries biologist, said Kalsin Bay was very productive, but, without juvenile fish there would be no adult fish. She felt the LTF would have minimum benefit for Kodiak but would impact and interfere with traditional fisheries. Chuck McWethy said subsistence fishermen heavily used the Bay and the LTF would conflict with that use. The Bay has a large tanner crab population as well as many species of marine life. He was concerned about a 550 foot boat navigating the Bay in high winds. After a ten minute recess at 9:00 p.m., Presiding Officer Heinrichs reconvened the Board of Adjustment. Steve Penn, forester, felt that bark would damage marine life. He saw the LTF as poorly conceived. Brian Johnson referred to Kalsin Bay as a "blow- hole" because of the high winds. He understood that Leisnoi owned the property, but the Bay belonged to everyone. Susan Baker spoke in opposition. Regular Assembly Meeting May I, 1997 Volume XXII Page 206 Deb Walser spoke in opposition. Mark Thomaa destroy his Jane VanAtta of the area. Paul Alexander saw hazards with large boats in the Bay. He wanted to save the character of the area. Mary Kay Cichoski spoke against the appeal. Michael Wiedmer had no position, but he was available for questions as an ADF &G Habitat Restoration Division representative. 5. Appellant rebuttal: Regular Assembly Meeting May 1, 1997 was concerned that a run -away ship could gear in Kalsin Bay. felt the LTF would destroy the integrity She appreciated using Leisnoi land. Marty Parsons said a baseline survey of Kalsin Bay revealed a large movement of water that would wash the bark away. He attended the workshop Mr. Koning attended, and the largest problem identified was transatlantic vessels carrying bacteria. The only way to stop that was to prohibit all but Alaskan vessels. The Southwest Pilots Association would design Kalsin Bay's ingress and egress to ensure that no vessels would end up on the rocks. Leisnoi was working to reduce any inconvenience to fishermen. The facility would be state of the art and the logs would be stored on land until ships arrived. He said there was new evidence that the facility would be consistent with CUP requirements. Following the appeal hearing, Presiding Officer Heinrichs recalled Linda Freed to answer questions of the BOA. In response to Assemblymember Milligan, Ms. Freed reread the KIBCMP regarding the maintenance and enhancement of fisheries' priority over shoreline use proposals that might adversely impact fish habitat, migratory routes, and the commercial harvest of fish. Presiding Officer Heinrichs requested that Mike Wiedmer come forward for questions of the BOA. in response to Assemblymember Milligan, Mr. Wiedmer said it was generally accepted that bark deposits, even in thin layers, would change the subsurface organism population but would not affect those species swimming by. The facility had a thorough design; however, the preference was for logs not to Volume XXII Page 207 enter the water. He was optimistic that the low dungeness crab population would rebound if biological needs were maintained. The 1985 Timber Task Force guideline was being reviewed to resolve federal and state environmental protection issues and to establish specific log transfer facility language. Assemblymember W. Stevens noted the ADF &G requirement that the project be consistent with the Coastal Management Plan (CMP) Mr. Wieder said the ADF &G did not issue permits on this type of project. Their role was to review the CMP regarding the effect on public use of the area and the effect on the habitat. Presiding Officer Heinrichs asked Marty Parsons, Bruce Roberts, and David Nesheim individually to come forward for questions of the BOA. In response to Assemblymember Milligan, Mr. Parsons said fishermen could file claims for lost gear and the gear would be replaced. He was not sure if there was payment for lost fishing time. Mr. Parsons added that in a five -year period 39 fishing vessels and 189 logging ships accessed the Dora Bay log facility and there were no accidents. The demographics of both bays were similar; however, Kalsin Bay was not as wide -open as Dora Bay. In response to Assemblymember Abell, Bruce Roberts, Leisnoi president, said Leisnoi was involved when the residents of Chiniak reviewed the plan. Six locations were reviewed and Kalsin Bay was the best location, of least impact, and most economically feasible. Chiniak residents suggested submitting the parcel for purchase by the Exxon Valdez oil Spill Council but that was a long process and now was the time to build the facility. He anticipated logging the area for 10 -15 years. Responding to Presiding Officer Heinrichs, Mr. Parsons said new regulations required changing the ballast water in open water; however, the Coast Guard would not put a vessel at risk. Assemblymember Bonney saw no guarantee that non- indigenous species would not enter Alaskan waters as long as there was trans - oceanic freighting. In response to Assemblymember Abell, Mr. Roberts said Leisnoi had 346 shareholders. At Presiding Officer Heinrichs' inquiry, Mr. Parsons Regular Assembly Meeting May 1, 1997 Volume XXII Page 208 said logs would be harvested, sorted, and trucked to the transfer facility. He anticipated 12 to 15 million board feet per year. In response to Assemblymember W. Stevens, David Nesheim said the permit regulated by the Environmental Protection Agency (EPA) would ensure adherence to the stipulations of the CUP. At Assemblymember W. Stevens' question, Mr. Parsons said bark deposits in the Bay would be sampled annually and submitted to the EPA. With annual deposits, problems were not expected. After a five minute recess at 10:55 p.m., Presiding Officer Heinrichs reconvened the Board of Adjustment. Presiding Officer Heinrichs outlined the procedures and options of motions. Assemblymember Milligan spoke to denying the appeal. He felt that although it could be the best log transfer facility in the state, the CMP was clear that fisheries had priority over shoreline facilities. Kalsin Bay had fisheries that required a lot of gear. Overwhelming testimony was based on local knowledge, not emotion. Ballast water was an issue but oil was an issue for all of Alaska. He felt the conflicts outweighed the proposed use of the facility. Assemblymember Abell was bothered that only two people represented the 346 Leisnoi members. He supported Assemblymember Milligan's comments. Assemblymember W. Stevens saw conflicting uses between two viable economic forces -- logging and fisheries. At some point there would be a need for concessions to accommodate other uses and ensure that the community remained strong. He wished the Commission had the benefit of the information packet from Leisnoi. He saw two choices: 1) remand back to the Commission, or 2) grant the appeal and start a process of accommodating multiple uses of the area with fisheries as a priority. Assemblymember Bonney felt Leisnoi went the extra mile and with community help, the facility could be state -of- the -art. Timber was a viable industry that could live and work with fishing. He saw a need for new industry in Kodiak. Regular Assembly Meeting May 1, 1997 Volume `OdI Page 209 MILLIGAN, seconded by W. STEVENS Assemblymember Milligan's concern was mooring buoys in various areas in the Bay with dense fixed gear. He wondered if property values could decline as fish profits decreased. Leisnoi's report was credible, but Kalsin Bay was the wrong location. Assemblymember W. Stevens opposed the motion. The testimony to deny the appeal was overwhelming, but he felt Kodiak could remain viable by diversifying and broadening the economy. Presiding Officer Heinrichs viewed it as a land use issue, not an economic issue. The community had to set priorities for development. The Leisnoi report answered most habitat questions, but he saw conflicts with the CMP development policy. MILLIGAN, seconded by W. STEVENS Assemblymember Milligan felt it was best interest of the community to remand this back to the Commission to allow the public to review the new report. VOTE ON MOTION TO AMEND Regular Assembly Meeting May 1, 1997 moved to deny the appeal of the Planning and Zoning Commission decision on Case No. 96 -021 Conditional Use Permit to Permit a Log Transfer Facility, Including In -water Transfer of Logs, in the C- Conservation Zoning District Generally Located Within Section 6, T30S, R2OW, Near the Mouth of Myrtle Creek in Kalsin Bay. moved to amend the motion by substitution to state that new evidence has been presented that changed the circumstances and that this issue be remanded by the BOA back to the Commission where they shall be treated as petitions for reconsideration. Volume XXII Page 210 Ayes: Abell, Milligan, W. Stevens Noes: Bonney, Heinrichs Absent: Johnson, G. Stevens MOTION FAILED 3 Ayes, 2 Noes Presiding Officer Heinrichs recessed the Board of Adjustment and reconvened the regular meeting. At 11:30 p.m. per Borough code, a motion was needed to extend the time of the meeting. W. STEVENS moved to extend the seconded by ABELL meeting to midnight. VOTE ON MOTION TO EXTEND Ayes: Milligan, W. Stevens, Abell, Heinrichs Noes: Bonney Absent: Johnson, G. Stevens MOTION CARRIED 4 Ayes, 1 No Presiding Officer Heinrichs recessed the regular meeting and reconvened the Board of Adjustment. The motion to deny the appeal was before the BOA. In response to Presiding Officer Heinrichs, Assemblymember Milligan said the Commission should review the new evidence. He attempted to review the new evidence with the habitat representative, and he had not seen this addressed. He wanted local experts to specifically review bark data from Dora Bay. MILLIGAN, moved to postpone the seconded by W. STEVENS appeal hearing to May 6, 1997 at 7:30 p.m. in the Assembly Chambers. Assemblymember Milligan felt the decision process would be better with one more assembly member present. Assemblymember Abell supported postponing to a later date. ABELL, moved to amend by Regular Assembly Meeting May 1, 1997 Volume XXQ Page 211 seconded by MILLIGAN changing the date to July 3, 1997. VOTE ON MOTION TO AMEND Ayes: Milligan, Abell, Bonney Noes: W. Stevens, Heinrichs Absent: Johnson, G. Stevens MOTION FAILED 3 Ayes, 2 Noes VOTE ON MOTION TO POSTPONE Ayes: W. Stevens, Abell, Bonney, Milligan, Heinrichs Noes: None Absent: Johnson, G. Stevens MOTION CARRIED Unanimous Presiding Officer Heinrichs recessed the Board of Adjustment and reconvened the regular meeting. MESSAGES FRO, MESSAGES FROM THE BOROUGH MAYOR MAYOR Acting Mayor Carlson reported that Mayor Selby would attend the next regular meeting. He had no messages to offer. OLD BUSINESS OLD BUSINESS None. NEW BUSINESS NEW BUSINESS A. AWARDS AWARDS None. B. RESOLUTIONS RESOLUTIONS 1. Resolution No. 97 -19 Opposing House Bill RESOLUTION No. 68 and Senate Bill No. 169 Allowing NO. 97 -19 Twelve Hour Work Days Without Overtime After Eight Hours. Presented for consideration was Resolution No. 97 -19 that, if adopted, encouraged the legislators, Regular Assembly Meeting May 1, 1997 Volume XXII Page 212 governor, and commissioners of the state of Alaska to not support passage of House Bill No. 68 and Senate Bill No. 169. ABELL, seconded by MILLIGAN Acting Mayor Carlson deferred as author of the resolution. Assemblymember Abell wanted to stop the legislation until further research was done. Assemblymember Milligan supported the resolution. VOTE ON MOTION TO ADOPT Ayes: Abell, Bonney, Milligan, W. Stevens, Heinrichs Noes: None Absent: Johnson, G. Stevens MOTION CARRIED Unanimous C. ORDINANCES FOR INTRODUCTION None. D. OTHER ITEMS 1. Appointment to Airport Advisory Committee. MILLIGAN, seconded by W. STEVENS There was no discussion by the Assembly. VOTE ON MOTION TO APPOINT Ayes: Bonney, Milligan, W. Stevens, Abell, Heinrichs Noes: None Absent: Johnson, G. Stevens Regular Assembly Meeting May 1, 1997 moved to adopt Resolution No. 97 -19. to Assemblymember Abell moved to appoint Bruce G. Buffington to a seat to expire December 1999 on the Airport Advisory Committee. ORDINANCES FOR INTRODUCTION OTHER ITEMS APPOINTMENT TO AIRPORT ADVISORY COMMITTEE Volume xxir Page 213 MOTION CARRIED Unanimous' INFORMATIONAT INFORMATIONAL MATERIALS (No action required) MATERIALS A. MINUTES OF OTHER MEETINGS MINUTES OF OTHER MEETINGS 1. Kodiak Island Hospital and Care Center Advisory Board Meeting of March 19, 1997. 2. Mental Health Center Advisory Board Meetings of February 24 and March 24 and Work Session Notes of March 3, 1997. 3. Service District No. 1 Board Meetings of October 31, December 10, 1996, and March 4, 1997. B. REPORTS REPORTS 1. Kodiak Island Hospital Administrator's Report for April, 1997. 2. Mental Health Center Director's Reports of March and April, 1997. C. OTHER None. CITIZENS' COMMENTS None. ASSEMBLYMEMBER COMMENTS Assemblymember Milligan wished everyone happy Earth Day. He said this meeting was an example of the difficult decisions the Assembly had to make. Assemblymember Bonney had not expected the intensity of the position when he ran for assembly. Assemblymember Abell wanted everyone to be involved. Presiding Officer Heinrichs congratulated Jeri Jensen for a well - deserved award. Presiding Officer Heinrichs announced the assembly would meet in work session Thursday, May 8, at 7:30 p.m. in the borough conference room and a regular meeting on Thursday, May 15 at 7:30 p.m. in the assembly chambers. The Assembly would reconvene as the Board of Adjustment on Tuesday, May 6 at 7:30 p.m. in the assembly chambers. OTHER CITIZENS' COMMENTS ASSEMBLYMEMBER COMMENTS Regular Assembly Meeting Volume XXII May 1, 1997 Page 214 There being no further business to come before the Assembly, the meeting adjourned at 11:50 p.m. Robin Heinrlchs ATTEST: onna F. Smit , CMC /AAE Borough Clerk Regular Assembly Meeting May 1, 1997 Presiding Officer Adopted: 06/19/97 ADJOURNMENT Volume XXII Page 215