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2001-12-06 Regular MeetingA regular meeting of the Kodiak Island Borough Assembly was held December 6, 2001 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 Mayor Gabrielle LeDoux, followed by the Pledge of Allegiance. There were present: Mayor: Gabrielle LeDoux Assemblymembers: Tom Abell Pat Branson Robin Heinrichs Absent: Tuck Bonney Greg Razo comprising a quorum of the Assembly; and Duane Dvorak, Administrative Official Judi Nielsen, Borough Clerk Nova Javier, Deputy Clerk TURNER, seconded by BRANSON VOTE ON MOTION TO EXCUSE MOTION CARRIED APPROVAL OF AGENDA HEINRICHS, seconded by BRANSON STEVENS, seconded by BRANSON VOTE ON MOTION TO AMEND MOTION CARRIED VOTE ON MOTION TO APPROVE AS AMENDED MOTION CARRIED Regular Assembly Meeting December 6, 2001 KODIAK ISLAND BOROUGH Regular Assembly Meeting December 6, 2001 Wayne Stevens Darlene Turner moved to excuse Assemblymembers Bonney and Razo. Unanimous voice vote moved to approve the agenda. moved to amend the agenda by removing item number 13.E.2 Confirmation of Mayoral Appointments of Assembly Member Representatives to Boards, Committees, Commissions, and Councils. Unanimous Voice Vote Unanimous voice vote REGULAR MEETING ROLL CALL APPROVAL OF AGENDA Volume XXVII Page 97 APPROVAL OF MINUTES None. AWARDS AND PRESENTATIONS None. CITIZENS' COMMENTS Vicki Joe Kennedy phoned to suggest that Assembly work session agendas be published. Mayor LeDoux agreed that publishing the agenda was a good idea. COMMITTEE REPORTS Assemblymember Stevens said the Southwest Alaska Municipal League (SWAMC) sea lion mitigation funds would be mailed December 12. The fund's distribution matrix would be published in the Daily Mirror on December 7. Assemblymember Turner said a ground zero volunteer gave a beneficial presentation at the Emergency Services Organization Meeting. She reported that the Mental Health Center Advisory Board would begin the community need's assessment program this month. PUBLIC HEARING None. BOROUGH MANAGER'S REPORT None. MESSAGES FROM THE BOROUGH MAYOR Mayor LeDoux congratulated Assemblymember Stevens for SWAMC's terrific job in dispensing the mitigation funds. She extended her condolences to the family of Planning and Zoning Commissioner Paul Alexander. She noted that the Alaska Municipal League Conference was a great experience. She congratulated Marina Fiala, North Star Elementary School sixth grader, who won third place on the "If I were a Mayor" contest. UNFINISHED BUSINESS None. NEW BUSINESS A. An Appeal of the Planning and Zoning Commission's Decision to Continue to Allow Mr. Charles Lorenson to Utilize the Property of his Mother, Mrs. Betty Lorenson, Located at 3315 Spruce Cape Road Regarding an Appeal of the Planning and Zoning Commission's Regular Assembly Meeting December 6, 2001 * * * * * * * * * * * * * * APPROVAL OF MINUTES AWARDS AND PRESENTATIONS CITIZENS' COMMENTS COMMITTEE REPORTS PUBLIC HEARING MANAGER'S REPORT MESSAGES FROM THE MAYOR UNFINISHED BUSINESS NEW BUSINESS BOARD OF ADJUSTMENT BOARD OF ADJUSTMENT Volume XXVII Page 98 Decision on Case No. PZ01 -033 Appeal of an Administrative Decision, Under Section 17.90.010 of the Kodiak Island Borough Code, Ordering the Cessation of the Business Use of the Property Located at 3315 Spruce Cape Rd.; Further Requesting that a "Non- conforming" Business Use of the Land and Building be Recognized Predicated Upon Past Use; Further Requesting that Such Non - conforming Use of Land and Building be Allowed to Relocate and Expand. (Appellant: Mrs. Betty Lorenson; Complainant: Teri Schneider) (Appellant: Teri Schneider) Mayor LeDoux recessed the regular meeting and convened the Board of Adjustment at 7:43 p.m. She said eighty -three appeal notices were mailed. The five notices returned favoring the granting of the appeal and the twelve notices returned opposing the granting of the appeal were part of the appeal record. Mayor LeDoux explained that the Board of Adjustment as a quasi- judicial board would decide the appeal upon the appeal record, written and oral argument, and testimony and evidence presented on the appeal. At the hearing before the assembly, only persons who have submitted written argument on the appeal, or testified before the commission, or submitted written comments to the commission may present oral argument. She outlined the order of oral argument: borough staff: 10 minutes; appellant: 10 minutes; private persons supporting the appeal: 10 minutes; private persons opposing the appeal: 10 minutes; and appellant rebuttal: 10 minutes. 1. Borough Staff Community Development Director Duane Dvorak provided a history on the appeal: 1) Teri Schneider initiated a land use complaint; 2) Director Dvorak determined that the commercial use of a residential accessory building was a violation of the R -2 Zoning District; 3) Mrs. Lorenson (property owner) filed an appeal with the Planning and Zoning Commission in response to the Director's decision; 4) the Planning and Zoning Commission heard the appeal and their decision was to reverse the Director's determination of a violation and to allow Mr. Charles Lorenson to continue to utilize the property; and 5) Teri Schneider appealed the Planning & Zoning Commission decision to the Board of Adjustment. 2. Appellant Teri Schneider said the Commission's decision to overturn staff's decision was an error in enforcing the Borough's zoning ordinances and building codes. She could not understand how the use of the property could be "grand fathered" when there was a new building in a new location with access from a new road. She understood the building was originally to be used as an accessory building; however, the building and surrounding site were used Regular Assembly Meeting December 6, 2001 * * * * * * * * * * * * * Volume XXVII Page 99 commercially. She was also concerned about a potential industrial accident in a residential zone. She urged the Board to overturn the Commission's decision. 3. Private persons supporting the appeal Eric Schneider was concerned about the use of hazardous materials on the residential lot where 55 gallon drums of chemicals for a foam machine were stored. He said the chemicals react with moisture and give off flammable gas and fumes that could cause burns and death. He said the building permits were not complete and the building would not accept a snow load, was not fire proof, and had insufficient footings. He implored the Board to enforce existing zoning ordinances. 4. Private persons opposing the appeal Charles Lorenson felt his use of the property was "grand fathered ". He said the chemicals were not hazmat as they could be transported by plane. He urged the Board to uphold the Commission's decision. Betty Lorenson said her late husband and her sons began using the property commercially in the early 1960's and she considered the continued use of the property as "grand fathered ". She urged the Board to allow the current use of the building. Penelope Lorenson said the majority of her husband's work was done at other job sites and there was little activity on the property. Victor Mullen said previously there were no complaints. He felt the business was important in the community. Scott Arndt felt the business was "grand fathered ". He said if staff had done their job properly this appeal would not be before the Assembly. Gene Lorenson said his brother did not do a business where individuals came and went from the property. He considered this a "grand fathered" business. 5. Appellant rebuttal Teri Schneider said Mr. Lorenson utilized the property for business use and other people submitted written response in support of the appeal. She noted that she followed the system in place and hoped that the Assembly could follow through. TURNER, seconded by BRANSON Regular Assembly Meeting December 6, 2001 moved to grant the appeal of the Planning and Zoning Commission's decision to continue to allow Mr. Charles Lorenson to utilize the property of his mother, Mrs. Betty Lorenson, located at 3315 Spruce Cape Road regarding an appeal of the Planning and Zoning Volume XXVII Page 100 Commission's decision on Case No. PZ01 -033 appeal of an administrative decision, under Section 17.90.010 of the Kodiak Island Borough Code, ordering the cessation of the business use of the property located at 3315 Spruce Cape Rd.; further requesting that a "non- conforming" business use of the land and building be recognized predicated upon past use; further requesting that such non - conforming use of land and building be allowed to relocate and expand. Assemblymember Heinrichs considered that the basis of this was whether the "grandfather" rights continued with the construction of a new building. Director Dvorak referred to KIBC 17.35.050 in that a legal use of a structure, land, or of a structure and land in combination, existing prior to the 1980 "grand fathering" ordinance, could be continued. Director Dvorak added that "grandfather" rights applied to a specific activity and geography and a change in location was not allowed. He noted that the Commission minutes were not verbatim transcripts. Assemblymember Turner noted that the zoning permit indicated a residence and accessory structure. She asked what items could be stored in the building. Director Dvorak said anything subsidiary and incidental to the principal use, such as personal items of a residential nature including vehicles, recreational vehicles, and a shop if not for commercial use. He noted that storage of crab pots was not allowed. Assemblymember Stevens asked about the history of non- conforming use prior to 1980. Director Dvorak said the property was used for skiff building and in 1980 that became a non - conforming use. That non - conforming use was allowed; however, it was located in a different building on a different location on the property. Assemblymember Branson asked about the accessory building and storing equipment. Director Dvorak said the storage of construction equipment was not subsidiary and incidental to the permitted uses. In response to the Board, Clerk Nielsen said the fire marshall was not on the list of those allowed to speak. In response to Assemblymember Turner, Eric Schneider presented the Assembly with a copy of the 2000 Emergency Response Guidebook and indicated the material stored on the property was hazardous. There was general discussion about convening into executive session. Regular Assembly Meeting December 6, 2001 Volume XXVII Page 101 HEINRICHS, seconded by BRANSON VOTE ON MOTION moved to convene into executive session to deliberate this matter. Ayes: Branson, Heinrichs, Stevens, Turner Noes: Abell Absent: Bonney, Razo MOTION CARRIED 4 Ayes, 1 No At 9:02 p.m. Mayor LeDoux recessed the regular meeting to convene into executive session. At 9:03 p.m. Mayor LeDoux recessed the executive session and reconvened the regular meeting. HEINRICHS, seconded by STEVENS VOTE ON MOTION moved to invite Director Dvorak and the clerk's office staff into executive session. Ayes: Branson, Heinrichs, Stevens, Turner, Abell Noes: Absent: MOTION CARRIED None Bonney, Razo Unanimous at 9:05 p.m. Mayor LeDoux recessed the regular meeting into executive session. At 10:20 p.m. Mayor LeDoux recessed the executive session and reconvened the regular meeting. TURNER, seconded by BRANSON VOTE ON MOTION TO POSTPONE Regular Assembly Meeting December 6, 2001 moved to postpone the appeal hearing to the regular meeting of January 3, 2002. Ayes: Heinrichs, Stevens, Turner, Abell, Branson Noes: None Absent: Bonney, Razo MOTION CARRIED Unanimous Mayor LeDoux adjourned the Board of Adjustment meeting and reconvened the regular meeting. Volume XXVII Page 102 B. CONTRACTS 1 . HEINRICHS, seconded by BRANSON VOTE ON MOTION Noes: Absent: MOTION CARRIED C. RESOLUTIONS None. D. ORDINANCES FOR INTRODUCTION None. E. OTHER ITEMS VOTE ON MOTION Noes: Absent: MOTION CARRIED Regular Assembly Meeting December 6, 2001 Contract No. 2001 -32 Alaska Department of Fish and Game Building Needs Assessment and Condition Survey. moved to award Contract No. 2001 -32 to ASCG, Inc. of Anchorage in an amount not to exceed $46,610.40. Administrative Official Dvorak said this was the result of a $200,000 legislative grant. He said the Engineering and Facilities Director recommended awarding the contract to ASCG, Inc. of Anchorage. Assemblymember Heinrichs was pleased that the Borough could assist in assessing the needs of the Department of Fish and Game building. Ayes: Stevens, Turner, Abell, Branson, Heinrichs None Bonney, Razo Unanimous 1. Kodiak Island Borough Assembly Meeting Schedule for 2002. BRANSON, moved to approve the 2002 seconded by HEINRICHS Kodiak Island Borough Assembly Meeting Schedule. Clerk Nielsen said this would maintain a normal meeting schedule except for the Fourth of July which falls on a Thursday. Ayes: Turner, Abell, Branson, Heinrichs, Stevens None Bonney, Razo Unanimous CONTRACTS CONTRACT NO. 2001 -32 RESOLUTIONS ORDINANCES FOR INTRODUCTION OTHER ITEMS ASSEMBLY MEETING SCHEDULE Volume XXVII Page 103 This item was removed from the agenda. 3. Confirmation of Mayoral Appointments of Kodiak Representatives to the Cook Inlet Regional Citizens Advisory Council (CIRCAC). HEINRICHS, seconded by BRANSON Clerk Nielsen said the CIRCAC requested that the Mayor appoint and the Assembly confirm to the three -year seat and the alternate seat on the Council. Mayor LeDoux thanked Ms. Jacobs and Ms. Yngve for their outstanding job of representing the community. VOTE ON MOTION MOTION CARRIED CITIZENS' COMMENTS None. ASSEMBLYMEMBER COMMENTS Assemblymember Heinrichs thanked Assemblymember Stevens for his leadership in SWAMC. He said SWAMC had done a stellar job in distributing the funds. Assemblymember Branson said the date of the next Goals and Objective meeting would be determined at the next work session. Mayor LeDoux announced that the Assembly will meet in a work session Thursday, December 13, 2001 at 7:30 p.m. in the Borough conference room, a joint Assembly /City Council meeting on Tuesday, December 18 at 7:30 p.m. in the Borough conference room and a regular meeting on Thursday, December 20, 2001 at 7:30 p.m. in the Assembly chambers. ADJOURNMENT There being no further business to come before the Assembly, the meeting adjourned a., 0:29,, p.m. A EST: 2. Confirmation of Mayoral Appointments of Assembly Member Representatives to Boards, Committees, Commissions, and Councils. udith A. Niel en, CMC Borough Clerk Regular Assembly Meeting December 6, 2001 moved to confirm the mayoral appointment of Mary Jacobs to a three -year seat and Pam Yngve as an alternate to the Cook Inlet Regional Citizens Advisory Council. Unanimous voice vote J�o , c7( rielle LeDoux, Mayor Approved: 01/17/2002 CONFIRMATION OF MAYOR APPOINTMENTS OF ASSEMBLY REPRESENTATIVES CONFIRMATION OF MAYOR APPOINTMENT TO THE CIRCAC CITIZENS' COMMENTS ASSEMBLYMEMBER COMMENTS ADJOURNMENT Volume XXVII Page 104