1999-06-17 Regular MeetingA regular meeting of the Kodiak Island Borough
Assembly was held June 17, 1999 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.
Mayor Stevens led the Pledge of Allegiance.
There were present: ROLL CALL
Mayor:
Gary Stevens, Presiding
Assemblymembers:
Tom Abell
Scott Arndt
Tuck Bonney
Absent:
Pat Branson Robin Heinrichs
comprising a quorum of the Assembly; and
Assemblymembers Branson and Heinrichs were out and
asked to be excused.
BONNEY,
seconded by ABELL
VOTE ON MOTION TO EXCUSE
MOTION CARRIED Unanimous voice vote
Regular Assembly Meeting
June 17, 1999
KODIAK ISLAND BOROUGH
Regular Assembly Meeting
June 17, 1999
Greg Spalinger
Wayne Stevens
Linda Freed, Interim Manager
Donna Smith, CMC /AAE, Clerk
Judi Nielsen, CMC, Deputy Clerk
moved to excuse
Assemblymembers Branson
and Heinrichs.
REGULAR MEETING
Volume XXV
Page 119
APPROVAL OF AGENDA AND CONSENT AGENDA
STEVENS,
seconded by BONNEY
moved to approve the
agenda and consent
agenda.
Clerk Smith read the items for consideration under
"Consent Agenda ".
VOTE ON MOTION TO APPROVE
MOTION CARRIED Unanimous voice vote
APPROVAL OF MINUTES
None.
AWARDS AND PRESENTATIONS
Mayor Stevens presented a plaque and flowers to
retiring Borough Clerk Donna Smith.
Clerk Smith thanked the Assembly and community for
their support during the past eight years.
CITIZENS' COMMENTS
A. Agenda Items Not Scheduled For Public Hearing
and General Comments.
Mike Milligan phoned to compliment the Assembly for
reducing the Borough's debt ratio. He was impressed
that the Assembly was able to maintain a fund balance
that would help with future bond ratings. He thanked
Donna for her service as Borough clerk.
COMMITTEE REPORTS
Assemblymember Stevens, Providence Kodiak Island
Hospital Advisory Board representative, reported that
the hospital was performing above financial
expectations. He pointed out that although the
inpatient portion lost money, the outpatient,
emergency room services, and extended care facilities
were exceeding financial expectations.
Regular Assembly Meeting
June 17, 1999
APPROVAL OF
AGENDA AND
CONSENT AGENDA
APPROVAL OF
MINUTES
AWARDS AND
PRESENTATIONS
MONTH
CITIZENS'
COMMENTS
COMMITTEE
REPORTS
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EXECUTIVE SESSION
STEVENS,
seconded by BONNEY
VOTE ON MOTION
Ayes: Abell, Arndt, Bonney,
Spalinger, Stevens
Noes: None
Absent: Branson, Heinrichs
MOTION CARRIED: Unanimous
Mayor Stevens asked Borough attorneys Matt Jamin and
Alan Schmitt, Manager Freed, Clerk Smith, and Deputy
Clerk Nielsen to join the Assembly in executive
session.
Mayor Stevens reconvened the regular meeting and
announced that no action was taken as a result of the
executive session.
PUBLIC HEARING
All ordinances and resolutions presented at this
meeting were introduced by title only and copies made
available to the public.
A. Ordinance No. 98 -10D Amending Ordinance
No. 98 -10 1999 Fiscal Year Budget to Reflect
Amendments.
STEVENS, moved to adopt
seconded by ABELL Ordinance No. 98 -10D.
BONNEY,
seconded by ARNDT
Regular Assembly Meeting
June 17, 1999
moved to convene into
executive session to hear
legal advice to avoid
litigation.
moved to amend
Ordinance No. 98 -10D by
substitution.
EXECUTIVE
SESSION
PUBLIC HEARING
ORDINANCE
NO. 98 -10D
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Manager Freed gave a brief overview of the current
year -end budget adjustments.
VOTE ON MOTION TO AMEND
Ayes: Arndt, Bonney, Spalinger,
Stevens, Abell
Noes: None
Absent: Branson, Heinrichs
MOTION CARRIED Unanimous
Mayor Stevens opened the public hearing.
Pam Foreman, Convention and Visitors Bureau director,
reported the additional request for $1,500 would
supplement funding for the convention development
assistant. This position would focus on bringing
meetings and conventions to Kodiak and hopefully
increase bed tax revenues. She thanked the Assembly
for their support.
Mayor Stevens closed the public hearing and
reconvened the regular meeting.
VOTE ON MOTION TO ADOPT AS AMENDED
Ayes: Bonney, Spalinger,
Stevens, Abell, Arndt
Noes: None
Absent: Branson, Heinrichs
MOTION CARRIED Unanimous
MESSAGES FROM THE INTERIM BOROUGH MANAGER MESSAGES FROM
MANAGER
Manager Freed thanked the staff and community for
their support as the interim manager.
Manager Freed said the Foreign Press Corps would meet
in Kodiak on Tuesday, June 22. There would be a
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June 17, 1999
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public meeting on June 23 in the Borough conference
room on the airport master plan, and she urged the
community to attend the meeting.
Manager Freed reported that Brad Gilman, Washington
D.C. lobbyist, said the trip for the Stellar sea lion
hearings and the effort to educate Commerce
Department and other Washington, D.C. staff was
considered very successful and he would follow up on
the long list of items presented. Manager Freed said
Mr. Gilman complimented the community on putting
together a successful trip.
Manager Freed reported that cleaning the auditorium
curtains was the most pressing school district
maintenance project. The fire marshall required the
curtains to be cleaned and sprayed with fire
retardant every five years. She would provide more
information at the next work session.
Manager Freed observed a major oil spill drill in
Valdez and she was pleased with the results. She was
encouraged to participate in future drills to protect
Kodiak's interest in the event of another oil spill.
MESSAGES FROM THE BOROUGH MAYOR MESSAGES FROM .
MAYOR
Mayor Stevens said the budget process was difficult
as this was the first budget with the new manager
plan. He was pleased that the budget was balanced
despite a tax cap and reduced state revenue sharing.
He clarified that the Assembly asked for and received
the resignation of Thomas Manninen. He said the Code
provided for Ms. Freed to act as the manager in the
absence of the manager; however, the Assembly felt
that it was appropriate to appoint Ms. Freed as the
interim manager. This was a transitional stage and
there would be a thirty to ninety day process to hire
a new manager.
Mayor Stevens thanked Clerk Smith for her years of
support to the Assembly. He noted that she left a
well trained staff.
Regular Assembly Meeting
June 17, 1999
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He noted the extensive time and effort spent on the
North Pacific Fisheries Management Council meetings.
He was pleased with the outcome of the meetings.
OLD BUSINESS OLD BUSINESS
A. BOARD OF ADJUSTMENT FINDINGS OF FACT on the BOARD OF
Granting of an Appeal of the Planning and Zoning ADJUSTMENT
Commission's Decision on Case No. 99 -002 FINDINGS OF FACT
Granting a Lot Size Variance According to
K.I.B.C. 16.40.050.B.1 Allowing the Dividing of
an Existing Non - Conforming Lot (ASLS 77 -33) of
4.82 Acres Into Two Lots (one 3.32 Acres, and
the Other 1.5 Acres) Both of Which are Less Than
the Minimum Five (5) Acres Required by K.I.B.C.
17.13.050.A in the C- Conservation zoning
district. Selief Bay, Raspberry Island.
(Applicant: Greg R. Gabriel, Jr.) (Appellant:
Peter and Baerbel Guttchen; Agent: Steven P.
Gray, Attorney).
ARNDT,
seconded by ABELL
Manager Freed read the findings -of -fact as follows:
17.66.050 A.1. There are exceptional physical
circumstances or conditions applicable to the
property or to its intended use or development which
generally do not apply to other properties in the
same land use district.
The subject property, ASLS 77 -33, is only 4.82 acres
in size. As such this property is nonconforming,
since the minimum lot size in the C- Conservation
zoning district is five (5) acres. The Board of
Adjustment is generally aware that there are many
other remote parcels in the Kodiak Island Borough
that are nonconforming due to lot size (150 plus),
for example parcels created by the Larsen Bay Tribal
Council. Therefore this characteristic of the
property is not exceptional and does apply to many
Regular Assembly Meeting
June 17, 1999
moved to approve the
findings -of -fact on
Planning and Zoning
Commission Case
No. 99 -002.
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Page 124
other properties in the C- Conservation zoning
district. In addition, the physical characteristics
of the property do not present development
constraints such as severe topography, excessive
water coverage, unusual drainage, or other physical
features. The subject property has a slight grade
rising from a rocky gravel beach. The property is
generally rectangular in shape and contains a stand
of virgin Sitka spruce. The one, site development
constraint, is limited access to potable water. The
staff report prepared for the request indicates that
the development potential of this property is
generally equal to that of other properties in the C-
Conservation zoning district.
17.66.050 A.2. The strict application of the
provisions of this title (Title 17 - Zoning) would
result in practical difficulties or unnecessary
hardships.
The New Illustrated Book of Development Definitions
(Rutgers, the State University of New Jersey, 1993)
comments that "hardship is related to the physical
characteristics of the property, and without the
variance, the property becomes unusable." The
applicant has claimed practical difficulties and
unnecessary hardships. Specifically, the applicant
has stated that "denial of the variance would result
in the practical difficulty of routine maintenance,
clearly defined property lines, and clouded title to
every structure on the property. This also has an
adverse affect on quality of life, and the general
enjoyment of the property by all involved." However,
these hardships are not related to the physical
characteristics of the property. The hardships cited
by the applicant are clearly related to conflicts
resulting from the joint ownership of the property,
(i.e. "clearly defined property lines and clouded
title to every structure on the property" and
"adverse affect on quality of life and the general
enjoyment of the property by all involved "). While
the ownership conflict creates difficulties for the
applicant's use and enjoyment of the property, the
Kodiak Island Borough permits use and occupancy of
the land, by all those with an ownership interest,
Regular Assembly Meeting
June 17, 1999
Volume XXV
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under Kodiak Island Borough Code (KIBC) Section 17.36
(Existing Nonconforming Uses and Structures). This
code section specifically provides for the routine
maintenance and occupancy of nonconforming
structures, permitting the applicant to maintain his
structures on the property and to continue to use
them as they have been used in the past.
17.66.050 A.3. The granting of the variance will not
result in material damage or prejudice to other
properties in the vicinity nor be detrimental to the
public's health, safety or general welfare.
Granting the variance could result in material damage
or prejudice to other properties in the vicinity, as
evidence by written appeal notices received by the
Board of Adjustment, and the verbal and written
testimony of the "co- owner" of the parcel.
Specifically, responses to appeal notices identified
concerns about the negative impact of varying from
the minimum five -acre lot size in the C- Conservation
zoning district. One respondent in particular
stated, "Please consider the possible precedent you
will be setting if you allow this. I don't like the
consequences of over development and over utilization
of resources." The attorney for the "co- owners" of
the property has stated that granting the variance
"will materially prejudice Mr. and Mrs. Guttchen's
property which has been developed into a remote lodge
business." Granting the variance, is a precursor to
subdivision of the property and the creation of an
independent lot or parcel, there is no other reason
for which to request the variance. The development
potential of a newly created parcel is greater, both
by density and type, than is permitted by KIBC
Section 17.36 on the existing parcel. Specifically,
the C- Conservation zoning district permits out - right,
for example, the development and operation of a lodge
that contain provisions for up to six clients, on
each individual lot in the zoning district. As a
single lot, the subject parcel is only permitted to
contain one lodge operation, and the historical
recreational cabin and associated activities.
Perhaps more significantly, from the perspective of
material damage or prejudice to other properties in
Regular Assembly Meeting
June 17, 1999
Volume XXV
Page 126
the vicinity, is the perceived precedent that will be
established if the variance request is granted. As
already noted there are many other non - conforming
lots in the C— Conservation zoning district, and large
number of lots that are greater than five acres in
size, but less than ten acres in size. Granting this
request can be seen as setting policy that suggests
that ownership disputes may be solved through the
variance and lot subdivision process, contrary to the
regulations contained in the C- Conservation zoning
district.
17.66.050 A.4. The granting of the variance will not
be contrary to the objectives of the comprehensive
plan.
Granting the variance will not generally be contrary
to the objectives of the Comprehensive Plan, since
the Kodiak Island Borough Coastal Management Program
(KIBCMP); the plan applicable to the property is a
performance, standards -based document. However, the
plan is based on a presumption that the minimum,
acceptable developmental lot size in the remote areas
of the Kodiak Island Borough is five (5) acres.
Specifically, the KIBCMP states, "The Kodiak Island
Borough shall minimize new regulations by using
existing ordinances and codes to implement the
Coastal Management Program whenever possible." (p -5-
6)
17.66.050 A.5. Actions of the applicant did not
cause special conditions or financial hardship or
inconvenience from which relief is being sought by a
variance.
The State of Alaska issued patent to this property,
an open -to entry parcel of 4.82 acres, to Joseph
Brodman in 1979. Mr. Brodman agreed to give 1.5
acres of the parcel to Mr. Gregory Gabriel, Sr. in
exchange for electrical supplies. Mr. Brodman
executed a quitclaim deed, intended as security only,
in favor of the Gabriels, conveying to them an
undivided one -half interest in the 4.8 -acre parcel.
Prior to delivering the quitclaim to the Gabriels,
Mr. Brodman executed a lease to the Guttchens which,
Regular Assembly Meeting
June 17, 1999
Volume XXV
Page 127
on its face, conveyed the entire 4.8 acres. Mr.
Brodman and the Guttchens also executed, but did not
record, a separate agreement acknowledging that the
Gabriels had been given 1.5 acres. Mr. Gabriel
discovered the recorded Guttchen lease. Difficulties
among the three parties ensued; culminating in a
lawsuit and this variance request. While the
applicant (Gregory Gabriel, Jr.) did not have a legal
interest in the property at the time the above
referenced property agreements were executed, he did
have a potential future interest in the property as
an immediate family member. Variances can not be
granted for the purpose of relieving an applicant of
special conditions, financial hardship, or
inconvenience caused by the actions of the applicant.
The ownership conflict exhibited in this case, for
which the variance is sought, is partially the result
of actions by a member of the applicant's immediate
family, from whom he received his interest in the
property.
17.66.050 A.6. Granting the variance will not permit
a prohibited land use in the district involved.
Granting the requested variance will not permit any
prohibited land uses in the C- Conservation zoning
district (KIBC Chapter 17.13). Kodiak Island Borough
code requires that all the specific requirements of
the C- Conservation zoning district are met, including
land use limitations, in the event a lot size
variance is approved.
THE KODIAK ISLAND BOROUGH ASSEMBLY, SITTING AS THE
BOARD OF ADJUSTMENT, FINDS THAT the applicant has
failed to meet all six of the criteria contained in
KIBC Chapter 17.66.050 in order for a variance to be
granted. Specifically, the applicant has failed to
meet sections A.1, A.2, A.3, A.4, and A.5 of Chapter
17.66.050. THEREFORE, the Board of Adjustment grants
the appeal and overturns the decision of the Kodiak
Island Borough Planning and Zoning Commission to
grant the applicant's request for a lot size
variance.
VOTE ON MOTION TO APPROVE
Regular Assembly Meeting
June 17, 1999
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Page 128
Ayes: Spalinger, Stevens,
Abell, Arndt, Bonney
Noes: None
Absent: Branson, Heinrichs
MOTION CARRIED Unanimous
B. Contract No. 99 -02 Lease Agreement for One Xerox CONTRACT
DC230 Copier. NO. 99 -02
The motion to award Contract No. 99 -02 with Radar
Alaska for lease of one Xerox DC230 copier for three
years at $1051.16 per month was before the Assembly.
Manager Freed said the contract was reconsidered and
then postponed until after the budget process.
Assemblymember Arndt said the copier was not funded
in the budget and he opposed approving the contract.
He would consider a mid -year budget adjustment for
the copier if revenues were above expectations.
VOTE ON MOTION TO AWARD
Ayes:
Noes:
Absent:
MOTION FAILED
NEW BUSINESS
A. CONTRACTS CONTRACTS
Bonney
Stevens, Abell, Arndt,
Spalinger
Branson, Heinrichs
1 Aye, 4 Noes
1. Contract No. 99 -14 Kodiak Island Borough CONTRACT
Clerk Employment Agreement (Judith A. NO. 99 -14
Nielsen)
STEVENS, moved to approve Contract
seconded by ARNDT No. 99 -14 Kodiak Island
Regular Assembly Meeting
June 17, 1999
NEW BUSINESS
Volume XXV
Page 129
Borough Clerk Employment
Agreement with Judith A.
Nielsen.
Mayor Stevens was pleased that Deputy Clerk Nielsen
would be the new clerk.
VOTE ON MOTION TO APPROVE
Ayes: Abell, Arndt, Bonney,
Spalinger, Stevens
Noes: None
Absent: Branson, Heinrichs
MOTION CARRIED Unanimous
B. RESOLUTIONS RESOLUTIONS
1. Resolution No. 99 -10 Establishing Fees of RESOLUTION
the Kodiak Island Borough for Fiscal Year NO. 99 -10
2000.
BONNEY, moved to adopt Resolution
seconded by STEVENS No. 99 -10.
Manager Freed provided a brief history on determining
Borough fees.
Assemblymember Arndt said there was no discussion on
changing the Borough building office rent. Manager
Freed said the changes were highlighted and she
understood the previous fees resolution was not used
when bills were sent out.
Assemblymember Arndt felt it was inappropriate to
increase borough rents and felt the rent monies
should be adequate to maintain the building.
ARNDT,
seconded by SPALINGER
Regular Assembly Meeting
June 17, 1999
moved to amend Resolution
No. 99 -10 by changing the
charge for Borough
building office rent to
$1.40 square foot.
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Page 130
Assemblymember Stevens wondered about the impact to
fiscal year 2000 budget projections. Manager Freed
said it would not change the income to the building
maintenance fund; however, it would change who paid
for it. Assemblymember Stevens said it was not
uncommon for the owner to occupy their own building
at a lower cost than other tenants.
Assemblymember Arndt said this was a community
building rented to three government entities and the
Borough paid for the school district. He felt it was
appropriate that the three entities pay the same rent
rate.
VOTE ON MOTION TO AMEND
Ayes: Arndt, Bonney, Spalinger,
Abell
Noes:
Absent:
MOTION CARRIED
VOTE ON MOTION TO ADOPT AS AMENDED
Ayes:
Noes:
Absent:
MOTION CARRIED
D. ORDINANCES FOR INTRODUCTION
1. Ordinance No. 99 -03 Rezoning Lots 15A, 15B,
15C, and 15D U.S. Survey 3099 From R -1 --
Single Family Residential To R- 2 - -Two
Family Residential. (2903, 2911, 2927, and
2933 Spruce Cape Road)
Regular Assembly Meeting
June 17, 1999
Stevens
Branson, Heinrichs
Unanimous
Bonney, Spalinger,
Stevens, Abell, Arndt
None
Branson and Heinrichs
Unanimous
ORDINANCES FOR
INTRODUCTION
ORDINANCE
NO. 99 -03
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Page 131
Ordinance No. 99 -03 was advanced to public hearing on
July 1, 1999 under "Consent Agenda ".
2. Ordinance No. 99 -04 Amending Kodiak Island ORDINANCE
Borough Code of Ordinances Title 15 NO. 99 -04
Buildings and Construction to Standardize
the Kodiak Island Borough and the City of
Kodiak Building Codes.
Ordinance No. 99 -04 was advanced to public hearing on
July 1, 1999 under "Consent Agenda ".
E. OTHER ITEMS
None.
INFORMATIONAL MATERIALS (No action required)
1. Service Area No. 1 Board Meeting of May 17,
1999
2. Kodiak Island Borough School District Board
of Education Regular Meeting of April 19
and Special Meetings of May 3, May 10, and
May 17, 1999.
1. Kodiak Island Borough School District Board
of Education Summary of June 7, 1999.
Assemblymember Arndt was pleased to work with Clerk
Smith and he looked forward to continue working with
Deputy Clerk Nielsen as the new clerk.
Assemblymember Abell congratulated Clerk Smith on her
retirement.
Regular Assembly Meeting
June 17, 1999
OTHER ITEMS
A. MINUTES OF OTHER MEETINGS MINUTES OF OTHER
MEETINGS
B. REPORTS REPORTS
CITIZEN'S
CITIZEN'S COMMENTS COMMENTS
None.
ASSEMBLYMEMBER COMMENTS ASSEMBLYMEMBER
COMMENTS
Volume XXV
Page 132
Assemblymember Stevens appreciated Clerk Smith's work
with past and present Assemblies. He congratulated
Deputy Clerk Nielsen and looked forward to working
with her as the clerk. He welcomed Ms. Freed as the
interim manager. He felt the master plan should
include the state airport, municipal airport, and
Trident Basin as they were intertwined in their
operational uses. The land ownership issue between
the U.S. Coast Guard and State of Alaska should be
resolved prior to further development. He opposed a
planning process with no meaningful conclusion.
Assemblymember Bonney would miss Clerk Smith and was
looking forward to working with Deputy Clerk Nielsen
as the clerk. He announced that the Borough paid the
former manager $21,000 in severance pay. He urged
residents to call the Borough with questions.
Assemblymember Spalinger thanked Clerk Smith for her
professionalism and guidance. He welcomed Deputy
Clerk Nielsen as the new clerk.
ANNOUNCEMENTS
The Assembly would meet in a work session and special
meeting on Tuesday, June 22 at 7:30 p.m. in the
Borough conference room, a work session on Thursday,
June 24 at 7:30 p.m. in the Borough conference room,
and a regular meeting on Thursday, July 1 at 7:30
p.m. in the assembly chambers.
ADJOURNMENT
There :being no further business to come before the
assembly, Mayor Stevens adjourned the meet at
10:20 p.m.
ATTEST:
dith A. Niel n, CMC
Borough Clerk
Regular Assembly Meeting
June 17, 1999
Gay L. St °wens
Mayor
Approved: 07/15/99
ANNOUNCEMENTS
ADJOURNMENT
Volume XXV
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