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1997-05-06 Special MeetingKODIAX ISLAND BOROUGH Special Assembly Meeting May 6, 1997 A special meeting of the Kodiak Island Borough Assembly was held May 6, 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. There were present: Robin Heinrichs, Presiding Tom Abell Tuck Bonney Mike Milligan Gary Stevens Wayne Stevens absent: Bob Johnson comprising a quorum of the Assembly; and Pat Carlson, Acting Mayor Donna Smith CMC /AAE, Clerk Judi Nielsen, Deputy Clerk Assemblymember Johnson was out of town and asked to be excused. G. STEVENS, moved to excuse seconded by MILLIGAN Assemblymember Johnson. VOTE ON MOTION TO EXCUSE SPECIAL MEETING ROLL CALL MOTION CARRIED Unanimous voice vote In response to Presiding Officer Heinrichs, Assemblymember G. Stevens said he listened to the tapes of the May 1 regular meeting of the Board of Adjustment appeal hearing. Presiding Officer Heinrichs recessed the special meeting and reconvened the Board of Adjustment appeal hearing. BOARD OF ADJUSTMENT BOARD OF ADJUSTMENT * * * * * * * * * * 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 Special Assembly Meeting May 6, 1997 Volume XXII Page 216 Located Within Section 6, T30S, R2OW, Near the Mouth of Myrtle Creek in Kalsin Bay. (Applicant: Leisnoi Incorporated) (Appellant: Leisnoi Incorporated) * * * * * * * * * * Presiding Officer Heinrichs explained that this was a continuation of the previous proceedings of the Board of Adjustment and outlined the process. The motion to deny the appeal was before the BOA. Joel Bolger, Borough attorney, was asked for an opinion on the implications of the existing motion. Mr. Bolger explained that if the motion carried, the appeal would be denied and the Planning and Zoning Commission decision would stand. It was complicated if the present motion did not carry because additional BOA action would be necessary as code provided; that is, an executive action was needed to reverse the Commission's decision, as it would not happen by default. If the present motion did not carry, another motion would be needed. There were two options: 1) The BOA could proceed with the present motion and if carried, the proceeding was over except for the findings of fact; however, if it did not carry, an additional motion would be necessary to grant the appeal; or 2) present a motion to amend by substitution to grant an appeal to reverse the Commission's decision. Mr. Bolger said Alaska Statutes was clear that the BOA, as a quasi- judicial body, was not a governing body and was not required to meet the Open Meetings Act to make a decision. The BOA could meet in executive session to deliberate on the question. In response to Assemblymember Milligan, Mr. Bolger said a court would determine that the Open Meetings Act did not apply for a judicial body to meet and deliberate and would not affect the validity of the decision. The testimony and questions impressed Assemblymember G. Stevens. As the other BOA members had stated their positions, he wanted to state his. He saw no compelling reason to remand to the Commission because most of the information was presented previously. He wanted the BOA to deliberate and act on the motion. Although it was legal, he opposed deliberating in executive session because of the ethical question. Special Assembly Meeting May 6, 1997 Volume XXII Page 217 Assemblymember Milligan strongly felt the motion to deny was the most appropriate. Testimony from both sides was very credible and based on local knowledge. He agreed with Assemblymember G. Stevens that now was the time to make a decision. Assemblymember Bonny heard testimony about clear - cutting, log storage in Bells Flats, and ruination of a pristine road system. He was frustrated as that was not the issue. Leisnoi owned the land and had the right to build as long as requirements of code were met. He heard testimony that fishing money was as important as Leisnoi money. Also, fishing would be tight where buoys were located. He could see the facility affecting traditional fishing, so he felt obligated to review both sides. He changed his position because the loss of tradition overshadowed the need for the facility; although, he still felt Leisnoi had the right to develop their land. Assemblymember Milligan was not satisfied with the information on the importance of Kalsin Bay to fishermen and that Leisnoi's method of paying for lost fishing time or gear was not taken seriously. Some who testified were not against logging but had a vested interest in how logging occurred. He thought the Assembly, with the land use policy, could encourage the use of the local facility at Lash Dock. He felt it would be remiss to grant the appeal because credible scientific information was received through local knowledge. Assemblymember W. Stevens said it was an emotional and contentious issue. He received distressing phone calls and his wife was accosted for his comments. He was elected to the assembly, she was not. He felt it was unfortunate that the community could not do business without approaching decisions with acrimony. He stood by his original statements. He predicted more conflict between different user groups, whether logging, sport fishing, or commercial fishing, and the need to find a way to work together to accommodate all. He heard professional testimony outlining the pros and cons. He foresaw more traditional uses versus new uses and hoped the community could work together. He saw a need to accommodate those coming to the community to generate a livelihood. Assemblymember Abell mentioned utilizing what was in place instead of Kalsin Bay. Presiding Officer Heinrichs repeated the motion. Special Assembly Meeting May 6, 1997 Volume XXII Page 218 VOTE ON MOTION TO DENY THE APPEAL Ayes: Noes: W. Stevens Absent: Johnson MOTION CARRIED 5 Ayes, 1 No W. STEVENS, moved to postpone the seconded by MILLIGAN findings -of -fact to June 5, 1997. Assemblymember Milligan pointed out that Assemblymember Johnson would be present on June 5. At questions raised, Ms. Freed said the findings could be prepared for the May 15 regular meeting but she was concerned that the BOA would not have adequate time to consider the draft document. Assemblymember G. Stevens did not want the findings of fact to conflict with budget discussion on June 5. G. STEVENS, seconded by ABELL Assemblymember W. Stevens felt this was an extremely weighty decision. Based on the volume of testimony, he would be more comfortable if staff had additional time to prepare the findings. Assemblymember Milligan felt it was important that the findings truly reflect the will of the BOA. He preferred the June 19 date but wondered if there were implications in waiting. Ms. Freed said the BOA's decision was not final until the findings were adopted. The time period for an appeal to court would start at that time. Assemblymember Bonney wanted staff to have adequate time. He expected to be out of town on June 5. VOTE ON MOTION TO AMEND Ayes: None Noes: Bonney, Milligan, G. Stevens, W. Stevens, Abell, Heinrichs Special Assembly Meeting May 6, 1997 Abell, Bonney, Milligan, G. Stevens, Heinrichs moved to amend by changing the date to May 15, 1997. Volume XXII Page 219 Absent: MOTION FAILED G. STEVENS, seconded by MILLIGAN VOTE ON MOTION TO AMEND Ayes: Noes: None Absent: Johnson MOTION CARRIED Unanimous VOTE ON MOTION TO POSTPONE AS AMENDED Ayes: Noes: None Absent: Johnson MOTION CARRIED Unanimous ATTEST: Donna F. Smith, CMC /AAE Borough Clerk Special Assembly Meeting May 6, 1997 Johnson Unanimous moved to amend by changing the date to June 19, 1997. Milligan, G. Stevens, W. Stevens, Abell, Bonney, Heinrichs G. Stevens, W. Stevens, Abell, Bonney, Milligan, Heinrichs Presiding Officer Heinrichs announced that the Board of Adjustment's decision would be mailed to the parties to the appeal within ten working days after the appeal decision and approval of findings of fact on June 19, 1997. Any person aggrieved by the final decision of the board of adjustment may appeal that decision to the superior court. Presiding Officer Heinrichs closed the Board of Adjustment and reconvened the special meeting. There being no further business to come before the Assembly, the meeting adjourned at 8:12 p.m. Robin Heinrichs Presiding Officer Adopted: 06/19/97 ADJOURNMENT Volume 7XII Page 220