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2003-08-21 Regular MeetingThere were present: Mayor: Gabrielle LeDoux Assemblymembers: Tom Abell Tuck Bonney Pat Branson Robin Heinrichs Pat Carlson, Judi Nielsen, Nova Javier, Laura Casey, APPROVAL OF AGENDA HEINRICHS, seconded by BRANSON KODIAK ISLAND BOROUGH Regular Assembly Meeting August 21, 2003 A regular meeting of the Kodiak Island Borough Assembly was held August 21, 2003 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 LeDoux, followed by the Pledge of Allegiance. Greg Razo Wayne Stevens Nancy Wells comprising a quorum of the Assembly; and Manager Borough Clerk Deputy Clerk Assistant Clerk moved to approve the agenda. VOTE ON MOTION TO APPROVE MOTION CARRIED Unanimous voice vote APPROVAL OF MINUTES 1. Kodiak Island Borough Assembly Regular Meeting of August 7, 2003. RAZO, moved to approve the seconded by BRANSON minutes as submitted. Assemblymember Branson corrected the Mayor's message on Page 2 of the minutes to read "their outdated comprehensive plan that had not been updated for 20 years." VOTE ON MOTION TO APPROVE AS CORRECTED MOTION CARRIED AWARDS AND PRESENTATIONS A. PROCLAMATIONS On behalf of Mayor LeDoux, Assemblymember Wells proclaimed the Month of September "Fetal Alcohol Syndrome Awareness Month" to promote awareness of the effects of prenatal exposure to alcohol, to increase compassion for those individuals so affected, to minimize further affects, and to ensure healthier communities across Alaska. Regular Assembly Meeting August 21, 2003 Unanimous voice vote REGULAR MEETING ROLL CALL APPROVAL OF AGENDA APPROVAL OF MINUTES AWARDS AND PRESENTATIONS PROCLAMATIONS FETAL ALCOHOL SYNDROME AWARENESS MONTH Volume XXVIII Page 105 Mayor LeDoux proclaimed September 2 -6, 2003 "Payroll Week" in honor of Kodiak Island Borough Accounting /Payroll Technician, Sharon Kennedy and all employees who work in the payroll profession. CITIZENS COMMENTS None. COMMITTEE REPORTS Jake Ketscher, Planning and Zoning Commissioner, provided an update on a variety of issues before the Commission. He asked the Assembly to approve their request for a legal opinion when reviewing the administrative appeal process. He hoped to have additional training for the Commissioners and to fill the vacant seat soon. PUBLIC HEARING None. BOROUGH MANAGER'S REPORT None. MESSAGES FROM THE BOROUGH MAYOR Mayor LeDoux congratulated Ouzinkie for their efforts and progress on the "No Child Left Behind Act." UNFINISHED BUSINESS None. NEW BUSINESS A. CONTRACTS 1. Contract No. 2003 -28 Professional Services to Update and Revise the Kodiak Emergency Operations Plan. STEVENS, seconded by BRANSON HEINRICHS, seconded by RAZO ROLL CALL VOTE ON MOTION TO SUSPEND Ayes: Noes: MOTION CARRIED: Unanimous Regular Assembly Meeting August 21, 2003 moved to award Contract No. 2003 -28 to EGO Consulting of Attleboro, MA in an amount not to exceed $16,850. Manager Carlson reported this was related to Resolution No. 2003 -24 which authorized the Manager to accept the Federal Emergency Management funds intended to update and revise the Kodiak Emergency Operations Plan. moved to suspend the rules to take action on Resolution No. 2003 -24. Abell, Bonney, Branson, Heinrichs, Razo, Stevens, Wells None PAYROLL WEEK IIZENS COMMENTS COMMITTEE REPORTS PUBLIC HEARING BOROUGH MANAGER'S REPORT MESSAGES FROM THE BOROUGH MAYOR UNFINISHED BUSINESS NEW BUSINESS CONTRACTS CONTRACT NO.2003 -28 Volume XXVIII Page 106 B. RESOLUTIONS RESOLUTIONS HEINRICHS, moved to adopt seconded by BRANSON Resolution No.2003 -24 VOTE ON MOTION TO ADOPT Ayes: Bonney, Branson, Heinrichs, Razo, Stevens, Wells, Abell Noes: 1. Resolution No. 2003 -24 Accepting Federal Emergency Management Agency (FEMA) Grant Funds and Identifying How the Kodiak Island Borough Intends to Use Such Funds. None MOTION CARRIED: Unanimous Mayor LeDoux announced that the motion before the Assembly was to award Contract No. 2003 -20 with EGD Consulting of Attleboro, MA in an amount not to exceed $16,850. Manager Carlson said two timely and responsive proposals were evaluated and EGD consulting received the highest score. He requested the Assembly's approval. ROLL CALL VOTE ON MOTION TO AWARD Ayes: Noes: None MOTION CARRIED: Unanimous C. ORDINANCES FOR INTRODUCTION Branson, Heinrichs, Razo, Stevens, Wells, Abell, Bonney 1. Ordinance No. 2002 -10D Amending Ordinance No. 2002 -10 Kodiak Island Borough Fiscal Year 2003 Budget to Reflect Amendments. BRANSON, moved to adopt Ordinance seconded by HEINRICHS No. 2002 -10D to advance to public hearing on September 4, 2003. Manager Carlson said this ordinance would adjust the budgets of several funds in preparation for the upcoming audit. VOTE ON MOTION TO ADVANCE Ayes: Noes: None MOTION CARRIED: Unanimous Regular Assembly Meeting August 21, 2003 Heinrichs, Razo, Stevens, Wells, Abell, Bonney, Branson RESOLUTION NO. 2003 -24 ORDINANCES FOR INTRODUCTION ORDINANCE NO. 2002 -10D Volume XXVIII Page 107 D. OTHER ITEMS OTHER ITEMS Ayes: 1. RAZO, seconded by BRANSON ROLL CALL VOTE ON MOTION Noes: None MOTION CARRIED: Unanimous 2. APPEAL TO THE ASSEMBLY Regular Assembly Meeting August 21, 2003 Parks and Recreation Committee Vacancy. moved to declare, with regret, the seat held by Ken Holmes on the Parks and Recreation Committee for a term to expire December 31, 2005 vacant. Razo, Stevens, Wells, Abell, Bonney, Branson, Heinrichs An Appeal of the Planning and Zoning Commission's Decision on Case No. 03 -003 GRANTING Preliminary Approval of the Vacation and Replat of Woodland Acres, Lots A1A, A1B, A1C and Erwin Estates, Lot 1, Creating Erwin Estates, USS 1682, Lots 1A, 4, 5, 6, 7 Including the Vacation of a Five (5) Foot Portion of a Fifteen (15) Foot Pedestrian Access Easement Over a Portion of Lot 1, Erwin Estates and the Amendment of a Plat Note, per Plats 99 -23, 98 -21 and 95 -23 to Eliminate a Prohibition on Structural Development, and Creating a Forty (40) Foot Private Drive Access Road. (Applicant /Appellant: Ron and Maria Painter) Mayor LeDoux asked if any Assemblymembers had a conflict of interest. Assemblymember Razo felt some witnesses may be his clients and declared a potential conflict of interest. Mayor LeDoux ruled no conflict of interest. She recessed the regular meeting to convene into the Appeal to the Assembly. She announced that 209 appeal notices were mailed, 46 were returned and were attached. The Assembly shall decide the appeal upon the appeal record and the written and oral argument presented on the appeal. She announced that the hearing before the Assembly, only persons who submitted written argument on the appeal, testified before the Commission, or submitted written comments to the Commission may present oral argument. She outlined the order of oral argument: Borough staff, including Commission representatives: 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, including Commission representatives Barbara Williams, authorized representative of the Planning and Zoning Commission, urged the Assembly to affirm their decision in its entirety without modifications, revisions, or deletions of conditions No. 1 PARKS AND RECREATION COMMITTEE VACANCY APPEAL TO THE ASSEMBLY (APPLICANT/ APPELLANT: RON AND MARIA PAINTER) BOROUGH STAFF Volume XXVIII Page 108 through No. 10. She referred to a legal opinion requested by the Commission and explained the basis of each finding. 2. Appellant APPELLANT Mel Stephens, Mr. & Mrs. Painters' counsel, questioned the release to the Assembly of the legal opinion sought by the Planning and Zoning Commission. He said the opinion was not released to the appellant and should not be relied upon by the Assembly. He said the Painters should receive equal treatment of the law and Condition 1 violated equal protection under the law, was not applied in that way and, if applied, should be applied to building permits. Ron Painter, urged the Assembly to overturn the Commission's decision. He said consistency was expected and the application of the law should not change with a change to the governing body. He felt every standard and requirement was met and asked the Assembly to approve their appeal. Maria Painter, asked the Assembly to review the KIB Coastal Management Plan noting her property could be developed without engineering restrictions. She noted the procedure under KIBC 16.40.070 was not completed. She was not asking for a vacation of a plat note that would require resending notices, she asked not to be forced to put a plat note on her subdivision that did not meet the KIBC 16.40.070. She commented that the lots in the subdivision were at least 40,000 square feet. She asked to be treated equally and fairly. Assemblymember Razo asked Mr. Stephens what relief he sought regarding the legal opinion presented to the Commission. Mr. Stephens wanted the Assembly to disregard comments associated with that legal opinion. 3. Private persons supporting the appeal PRIVATE Anne Kalcic said that requiring an addendum to a plat that PERSONS was not previously required was not fair and equal to the Painters. They should be allowed to use their property as they saw fit. 4. Private persons opposing the appeal Jim Crane confirmed with Community Development that the beach could not be developed before he purchased his lots. He said owners paid premium prices for the lots, the beach access, and the ocean view. He was concerned about the negative impact of any modifications to the plat. Jerry Bongen urged the Assembly to uphold Condition of approval three to maintain the integrity of the neighborhood. They did want to prevent the Painters from developing their properties as long as they were developed according to Borough code, the RR zoning district code, and the plat note. Regular Assembly Meeting August 21, 2003 Volume XXVIII Page 109 Debbie Hansen read a written argument submitted on the appeal and said the current conditional approval of the proposed development without resolving the ownership of the affected lands was irresponsible. Chuck Thompson read a letter from his wife noting their frequent use of the beach. They considered their location a huge asset and any infringement to their rights would negatively impact their lifestyle and property value. Giovanni Tallino said the appeal substantially impacted 90 property owners and their families. He said consistency could only be achieved by abiding by the law and the plat note the Painters signed was one of the laws. He urged the Assembly not to grant the appeal. Ken Hansen read a written statement condition of approval 1, 2, and 3. He noted strong objection to the appeal. After a thirteen minute recess, Mayor LeDoux reconvened the Appeals to the Assembly at 9:03 p.m. Denise Bradbury wanted the decision upheld based on the existing code. She said that with the proposed road, her property would have roads on three sides and significantly lower her property value and quality of life. Barry Still noted the Commission's consistency on past and current subdivision practices. He was concerned about limited fire truck access on the proposed road. Jan Philpot said resubdividing parcels in a subdivision could lower property value, block views, and traffic impacts. She did not want any of the plat notes removed. Darcy Stielstra was concerned about property values and the quality of life in their neighborhood. Candy Ozols wanted fairness too. They bought their property 25 years ago that included a covenant to allow property owners beach access. Subdividing the property would restrict or prohibit their use of the beach. Phil Chiaravalle opposed the plat change and proposed subdivision. He paid premium dollars for an unobstructed ocean view and beach access and did not want structures built that wuold restrict that access. Michael Horton felt this would degrade the quality of life in the neighborhood. 5. Appellant rebuttal APPELLANT REBUTTAL Mr. Stephens said this was a government of laws not a government of man. The conditions were imposed because of massive opposition to the subdivision because people were concerned about their view, or supposed recreation rights, not because they were concerned about a hazardous property. He noted it was necessary to preserve the intent of an original subdivision covenant that was an erroneous statement and that was why it went on and that was why it should not be carried over. He wondered why the Borough attorney did not opine on the road easement issue. He Regular Assembly Meeting August 21, 2003 Volume XXVIII Page 110 said Community Development employees should not have been giving legal advise. Those people who consulted them might have gotten bad legal advise. He said the state owned much of lots 4 and 5, at the opinion of the Borough Attorney found at page 217 in which he said "with regards to the Beauvais property, Beauvais owns the property below the high tide line because it was a sudden event in the earthquake." He said the mentioned property was very close to the Painters' property. He said the attorney general's opinion at page 213 -216 clearly contradicted Atkinson's letter. He showed some pictures of properties that did not have restriction and were not found hazardous. He advised they were just asking for fairness and the Assembly should stick to the code. He said the Painters did not really know about the plat notes until sometime after they bought the property. He asked the Assembly not to go into executive session and just deliberate publicly. If they decide to do so anyway, they should not invite Borough Manager Carlson since he already made a ruling in this case relating to freedom information act request. He also asked that the executive session be taped so if it comes up in court they would know what was said. Maria Painter said some of the people who testified failed to tell that several lots next to her property have a large pond included in their 40,000 square foot lot. She said zero lot line developments strictly said no water bodies and private roads allowed. Rural residential development did not state that, that was why they have a pond in their lot of 40,000 square foot. She said they opposed her and they said she was not allowed the same thing. She said under the Borough code she qualified. Regarding the beach area, she was not restricting anyone beach area access. She said they could go down from mean high tide seaward, it was theirs to play, run, and do whatever they wanted; however, they should not object to what she hoped for her property because they did not have the deed to her land and they were not the ones paying taxes on it. WELLS, seconded by RAZO ROLL CALL VOTE Ayes: Noes: None MOTION CARRIED: Unanimous Regular Assembly Meeting August 21, 2003 moved to convene into executive session for deliberation as a quasi - judicial board. Stevens, Wells, Abell, Bonney, Branson, Heinrichs, Razo After the vote, Mayor LeDoux invited the manager and clerk's office staff to join the executive session. After the executive session, she reconvened the Appeal to the Assembly at 11:02 p.m. EXECUTIVE SESSION Volume XXVIII Page 111 Assemblymember Razo wanted consensus of the Assembly to release the legal opinion to the appellant and all affected parties and allow an additional opportunity up to seven days, to receive additional comments. The Assembly had a consensus to release the legal opinion. In response to Mayor LeDoux, Clerk Nielsen said copies were available that evening to the appellant, their counsel, and the public. The appeal record would contain the legal opinion and would be available at the clerk's office the next day. HEINRICHS, seconded by BRANSON ROLL CALL VOTE Ayes: Noes: None MOTION CARRIED: Unanimous Mr. Stephens asked for clarification about additional public comments if it was strictly for written comments only. He asked also for the submission deadline. Mayor LeDoux said written testimony and oral testimonies would be accepted. RAZO, seconded by HEINRICHS Manager Carlson clarified if it was limited to items arising from the attorneys opinion only. In response, Assemblymember Razo said you could not put a limit to it since the opinion covered a wide variety of topics. ROLL CALL VOTE Ayes: Regular Assembly Meeting August 21, 2003 moved to postpone action on this item to the next regular meeting. Wells, Abell, Bonney, Branson, Heinrichs, Razo, Stevens moved to disseminate the legal opinion that had become a part of the record on appeal before the Board of Adjustment. Based upon that dissemination, allow additional period from now, for seven days to provide additional written comments and to allow additional public hearing based upon this new information made available to concerned parties at the next regular meeting. Abell, Bonney, Branson, Heinrichs, Razo, Stevens, Wells Noes: MOTION CARRIED: CITIZENS COMMENTS None. ASSEMBLYMEMBER COMMENTS ATTEST: .Z4 ( Judith A. Niel en, CMC Borough Clerk Regular Assembly Meeting August 21, 2003 None Unanimous Assemblymember Razo hoped the Borough, the City, and the School District would develop a mutual solution to keep the pool open. Assemblymember Wells said it was the beginning of the school year and everyone should watch out for school children and drive carefully. Assemblymember Heinrichs said the In -kind Adhoc Committee continued to meet and made good progress. The Committee was waiting for decisions from the School Board to proceed through all but two issues. He would continue to report to the Assembly about their deliberations. ADJOURNMENT ADJOURNMENT There being no further business to come before the Assembly, the meeting adjourned at 11:14 p.m. Gabrielle LeDoux, May Approved 10/2/2003 CITIZENS COMMENTS ASSEMBLYMEMBER COMMENTS Volume XXVIII Page 113