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2010-06-17 Regular Meeting KODIAK ISLAND BOROUGH Assembly Regular Meeting June 17, 2010 A regular meeting of the Kodiak Island Borough Assembly was held on Thursday, June 17, 2010, 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 Captain John Quinn of the Salvation Army. Mayor Selby led the Pledge of Allegiance. Present were Mayor Jerome Selby, Assembly members Jerrol Friend, Sue Jeffrey, Dave Kaplan, and Chris Lynch. Staff members present were Manager Rick Gifford, Community Development Department Director Bud Cassidy, Clerk Nova Javier, and Assistant Clerk Jessica Kilborn. KAPLAN moved to excuse Assembly members Branson, Fulp, and Stutes who were absent due to personal leave. VOICE VOTE ON MOTION CARRIED UNANIMOUSLY. APPROVAL OF AGENDA AND CONSENT AGENDA JEFFREY moved to approve the agenda and consent agenda as submitted. VOICE VOTE ON MOTION CARRIED UNANIMOUSLY. APPROVAL OF MINUTES A. Regular Meeting minutes of May 6, 2010, were approved under the consent agenda. AWARDS AND PRESENTATIONS None. CITIZENS' COMMENTS None. COMMITTEE REPORTS Trevor Brown, Kodiak Chamber of Commerce Economic Development Specialist, provided an update on the Chamber's latest activities and events. Assembly member Friend reported on the Architectural Review Board proceedings. PUBLIC HEARING A. Ordinance No. FY2010 -09 Amending Title 16 Subdivision Chapter 16.90 Appeals to the Assembly Section 16.90.100 Hearing Examiner and Title 17 Zoning Chapter 17.225 Appeals to the Board of Adjustment Section 17.225.090 Hearing Examiner. JEFFREY moved to adopt Ordinance No. FY2010 -09. Kodiak Island Borough Assembly Guidelines June 17, 2010 Page 809 The KIBC provided no other guidance on the qualifications or standards for a hearing officer under 16.90.100 and 17.225.090 which had apparently been in effect since 1990 or 1991. There was likewise no guidance under AS 29.40.050 which had been in effect since at least 1985. In 2004, the Alaska Legislature authorized the creation of the Office of Administrative Hearings in AS 44.64. The statute referred to the hearing officers in its department as administrative law judges (ALJs). Among other things, AS 44.64 set standards for ALJs (AS 44.64.040), established a code of conduct for them (AS 44.64.050), and set procedures for hearings (AS 44.64.060). In short, the State had established the qualifications and standards for hearing officers. The suggested code changes would allow the Borough to immediately refer appropriate appeals to the Office of Administrative Hearings rather than first obtaining an Assembly resolution. Mayor Selby opened the public hearing. Mel Stephens spoke against Ordinance No. FY2010 -09. Mayor Selby closed the public hearing. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY: Friend, Jeffrey, Kaplan, and Lynch. BOROUGH MANAGER'S REPORT Manager Gifford reported on the following: • The fire hydrant on Island Circle had been repaired. • Personnel for the GIS Analyst position had been hired. • The Code Enforcement Officer job description had been presented to the Personnel Advisory Board and was being advertised. • Gave an update on Contract No. FY2010 -30 Solid Waste Collections Contract and the arrival of the new rolling carts. MESSAGES FROM THE BOROUGH MAYOR Mayor Selby wished everyone a great summer. UNFINISHED BUSINESS None. NEW BUSINESS Contracts 1. Contract No. FY2010 -38 Between the Kodiak Island Borough and the Kodiak Chamber of Commerce of Kodiak, Alaska for Economic Planning and Project Development Within the Kodiak Island Borough for FY2011. JEFFREY moved to authorize the manager to execute Contract No. FY2010 -38 with Kodiak Chamber of Commerce of Kodiak, Alaska for Economic Planning and Project Development within the Kodiak Island Borough for FY2011 in the amount not to exceed $45,000. Kodiak Island Borough Assembly Guidelines June 17, 2010 Page 810 The Kodiak Island Borough had participated in a community -based economic development program operated by the Kodiak Chamber of Commerce for many years. Funding support from the Borough and the City of Kodiak would be used to provide an Economic Development Committee and staff to focus on economic development planning and project development in the Kodiak Region. Those who served on the Economic Development Committee would be drawn from the Kodiak Island community with representatives from the City of Kodiak, Kodiak Island Borough, Kodiak Island outlying communities, and the Kodiak Chamber of Commerce. The contract renewed the relationship for the 2011 fiscal year. The duties to be accomplished for this period were outlined in the agreement. Section 2b included an additional duty to attend local, state, and federal fisheries meetings on behalf of the Borough. The contract was increased an additional $2,000, from $43,000 to $45,000 for the additional duty. In addition, travel expenses for these meetings would be divided between the Borough and the City of Kodiak. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY: Jeffrey, Kaplan, Lynch, and Friend. 2. Contract No. FY2010 -39 Between the Kodiak Island Borough and the Kodiak Island Convention and Visitors Bureau for Destination Marketing and Tourism Development Services for FY2011. FRIEND moved to authorize the manager to execute Contract No. FY2010 -39 with the Kodiak Island Convention and Visitors Bureau for Destination Marketing and Tourism Development Services for FY2011 in the Amount Not to Exceed $60,000. The Kodiak Island Convention and Visitors Bureau (KICVB) had been providing destination marketing and tourism development for the Kodiak Island Borough for several years through its Marketing Committee. Funding support from the Borough and the City of Kodiak was used to support the KICVB. The Borough funded the KICVB from the Borough's bed tax revenue. The contract renewed this relationship for the 2011 fiscal year. The duties to be accomplished for this period were outlined in the agreement and included an increase of $5,000 as requested by the KICVB. ROLL CALL VOTE ON MOTION CARRIED UNANIMOULSY: Kaplan, Lynch, Friend, and Jeffrey. Resolutions 1. Resolution No. FY2010 -35 Adopting the Comprehensive Economic Development Strategy (CEDS) 2010. KAPLAN moved to adopt Resolution No. FY2010 -35. Kodiak Chamber of Commerce was the recognized economic development organization on Kodiak Island and had entered into a contract with the City of Kodiak and the Kodiak Island Borough to provide economic development planning and leadership for the Kodiak Island communities. Kodiak Chamber of Commerce established an Economic Development Committee to develop and review a Comprehensive Economic Development Strategy which Kodiak Island Borough Assembly Guidelines June 17, 2010 Page 811 was the first step in the process of taking advantage of the many grant and assistance programs available through the U.S. Department of Commerce Economic Development Administration. Kodiak Chamber of Commerce would assist the communities of Kodiak Island in the planning and development of the strategies and activities that those communities found were necessary to successfully engage in pursuing desired economic growth and business development which was compatible with local needs and lifestyles. In addition, Kodiak Chamber of Commerce was also actively pursuing opportunities to work with other communities in the Southwest region and worked cooperatively with the Southwest Alaska Municipal Conference. ROLL CALL VOTE ON MOTION CARRIED UNANIMOULSY: Lynch, Friend, Jeffrey, and Kaplan. 2. Resolution No. FY2010 -36 Authorizing the Records Manager to Dispose of Certain Kodiak Island Borough Records. This item was approved under the consent agenda. Kodiak Island Borough Code 2.40.160 provided for the destruction of records which were certified by the clerk and attorney as having no legal or administrative value, or historical interest. The list of records was not of historical, legal, nor administrative value and had met the minimum retention requirements. 3. Resolution No. FY2010 -37 Appointing the Kodiak Island Borough Attorney. FRIEND moved to adopt Resolution No. FY2010 -37. This resolution was in compliance with KIBC 2.65.020 which states that the Assembly shall appoint the attorney by resolution. The current contract with Jamin Law Office would expire June 30, 2010. The Borough went out for Requests for Proposal (RFP) and interviewed the respondents on May 13 and May 27, 2010. Out of the three interviewed, Wohlforth, Johnson, Brecht, Cartledge & Brooking was selected by the Assembly to become the new legal counsel to be recognized as the Borough Attorney. This resolution also authorized the Manager to execute a contract with the law firm of Wohlforth, Johnson, Brecht, Cartledge & Brooking. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY: Friend, Jeffrey, Kaplan, and Lynch. Ordinances for Introduction None. • Other Items Mayor Selby recessed the regular meeting and convened the Board of Adjustment at 8:16 p.m. 1. BOARD OF ADJUSTMENT An Appeal of the Planning and Zoning Commission's Decision on Case No. 10 -013 of March 10, 2010, Overturning an Administrative Order Resulting in the Issuance of a Notice of Violation Regarding the Use of Lot 10, Block 1, Pasagshak Subdivision for a "Full- Service Lodge, Including Room Accommodations, Meals, Guiding, and Transport Services." The appellants are seeking specific relief. Appellants: Richard and Nancy Diemer. Kodiak Island Borough Assembly Guidelines June 17, 2010 Page 812 Mayor Selby announced that 60 appeal hearing notices were mailed. 20 written comments were returned and provided to the Board of Adjustment. Mayor Selby announced that the Board of Adjustment would decide the appeal upon the appeal record and the written and oral argument presented on the appeal. At the hearing before the Board of Adjustment only persons who had submitted written argument on the appeal, or testified before the Planning and Zoning Commission, or submitted written comments to the Commission were allowed to give oral argument. Mayor Selby announced the following persons would be allowed to present oral argument on the appeal: Persons who submitted written argument on the appeal: Mike Anderson Chris Flickinger Mike Sirofchuck Leslee Baker Adriana L. Hanko Stacy M. Studebaker Fred & Mary Barber Dale & Jean Heath Paul J. Wilkinson Michael Brechan Jesse & Maryann Holmes Jessica Wolfe P J Brisco Michael Hyde Jocelyn and John Zbitnoff Merle Brown Janet & Bob Johnson Grant & Carolyn Deline Leslie Kerr Richard & Nancy Diemer Elaine O'Brien Testified before the Commission: Leslee Baker Jim Chase Mark Olsen Merle Brown Steve Faust Jim Peterson Mike Sirofchuk Dale Heath Jim Rippey Skip Bolton Adriana Hanko Carma Shay Brad Bonner Mike Hyde Barry Stilt Tuck Bonney Judi Kidder Kathy Wilson Submitted written comments to the Commission: Michael Anderson Richard Diemer Daniel Ring Leslee Baker Roy Ecklund Jim Rippey Rick Baker Steve Faust Fred Roberts Mary Barber Chris Flichinger Carma Shey Fred Barber Lynn Furin Mike Sirofchuk Skip Bolton Adriana Hanko Joseph Stanton Brad Bonner Dale Heath Robert Steelman Tuck Bonney Jean Heath Barry Still Norman Brand Jesse Holmes Karen Still Anita Brechan Mike Hyde Stacy Studebaker Mike Brechan Judi Kidder Curt Tolle Ruth Brechan Tom Loran Sadina Tolle Merle Brown Patricia Jane Maechtle Jim Vanatta Jim Chase Mike Martin Paul Wilkinson Gregory Cox Elaine O'Brien Kathy Wilson Carolyn Deline Mark Olsen Jessie Wolfe Grant Deline Davis Parker Nancy Diemer Jim Peterson Kodiak Island Borough Assembly Guidelines June 17, 2010 Page 813 The order of oral argument was as follows: 1. Borough staff represented by Community Development Department Director Bud Cassidy, Planning and Zoning Commission Chair Dave King, and Planning and Zoning Commissioner Brent Watkins. Community Development Department (CDD) Director Cassidy deferred to Planning and Zoning Commission Chair Dave King and Commissioner Brent Watkins. Commissioners King and Watkins provided details on the process that the Commission considered for the original case, and referred to the Borough Code and the Pasagshak Area Comprehensive Plan. These items included: • The Bakers were considered "Grandfathered in ". • The Commission felt that the code did not prohibit a bed & breakfast (B &B) business from serving more than one meal to customers, especially considering the B &B's location. • The septic system issue had been resolved. • Necessary permits were issued and minimum requirements for the operation of a B &B in the Pasagshak area had been met. • The essential residential character was not changed by the operations at the Bakers' lot. • Charter permit for the fishing business was acquired. • It was an owner occupied dwelling and met zoning code requirements for the area. 2. Appellant: (Richard and Nancy Diemer) Teresa Williams, attorney for Mr. and Mrs. Diemer, presented information to the Board of Adjustment and spoke on the authorized zoning in the Pasagshak area. Multi -guest facilities were provided in specific zoning areas, but were not in the area that the Baker's facility existed. "Lodges" were prohibited by the Pasagshak Area Comprehensive Plan and through Rural Residential One District (RR1) zoning. She spoke on the change of residential character of the area and claimed the Bakers were operating a "full service lodge" within a residential zoning district. 3. Private person supporting the appeal: Stacy Studebaker and Mike Sirofchuck spoke in support of the appeal and on preserving the future of the Pasagshak area through the Comprehensive Plan. 4. Private person opposing the appeal: Judi Kidder, Rick Baker, Jim Van Atta, Mike Hyde, Dale Heath, Mike Anderson, Leslee Baker, Jim Brisco, Jim Rippey, Dan Ring, and Barry Still spoke in opposition of the appeal and in support of the Planning and Zoning Commission's process of investigating the case. 5. Appellant, for rebuttal: (Richard and Nancy Diemer) Ms. Williams and Mr. Diemer addressed testimony that was presented by the private persons who spoke in opposition of the appeal. Kodiak Island Borough Assembly Guidelines June 17, 2010 Page 813 KAPLAN moved to convene into executive session for deliberation as a quasi - judicial board. The motion died for lack of a second. CDD Director Cassidy provided information on the process that staff followed when issuing the "cease and desist" order. He stated that CDD staff investigated the situation based on requirements set forth within the comprehensive plan and the Borough code, and provided a recommendation to the Commission. He spoke on enforcing the definitions that were set in the Borough code. FRIEND moved to affirm in whole the Planning and Zoning Commission's decision on Case No. 10 -013 of March 10, 2010, overturning an administrative order resulting in the issuance of a notice of violation regarding the use of Lot 10, Block 1, Pasagshak Subdivision for a "full- service lodge, including room accommodations, meals, guiding, and transport services." The appellants are seeking specific relief. Appellants: Richard and Nancy Diemer. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY: Jeffrey, Kaplan, Lynch, and Friend. FRIEND moved to postpone the Findings -of -Fact of the Board of Adjustment on the Planning and Zoning Commission's decision on Case No. 10 -013 of March 10, 2010, Overturning an Administrative Order Resulting in the Issuance of a Notice of Violation Regarding the Use of Lot 10, Block 1, Pasagshak Subdivision for a "Full- Service Lodge, Including Room Accommodations, Meals, Guiding, and Transport Services" to the next regular meeting of the Assembly. Appellants: Richard and Nancy Diemer. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY: Kaplan, Lynch, Friend, and Jeffrey. Mayor Selby referred to KIBC Section 17.225.100 Judicial review which states "any person aggrieved by a final decision of the board of adjustment under this chapter may appeal that decision to the superior court within 30 days of the decision. An appeal to superior court shall be heard solely on the record before the board of adjustment or its hearing examiner and the commission. The appeal procedure shall be governed by the rules set forth in Part Six of the Rules of Appellate Procedure of the state of Alaska. The findings of the board of adjustment shall not be reversed if, in light of the whole record, they are supported by substantial evidence." Mayor Selby reconvened the regular meeting at 10:05 p.m. Executive Session 1. Discussion on Potential or Pending Litigation Regarding Garbage Lien. FRIEND moved to convene into executive session to discuss potential and /or pending litigation regarding garbage lien to which the Borough may become or is a party. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY: Lynch, Friend, Jeffrey, and Kaplan. Mayor Selby invited the Borough Assembly, Attorney, Manager, and Clerk's Office Staff into executive session. Kodiak Island Borough Assembly Guidelines June 17, 2010 Page 813 Mayor Selby recessed the regular meeting and convened the executive session at 10:10 p.m. Upon returning from the executive session, Mayor Selby reconvened the regular meeting at 10:34 p.m. and announced no action was to be taken as a result of the executive session. CITIZENS' COMMENTS None. ASSEMBLY MEMBER COMMENTS Assembly member Lynch had no comment. Assembly members Kaplan and Jeffrey congratulated Mayor Selby on being voted second vice - president for the Western Interstate Region of the National Association of Counties. Assembly member Friend expressed disappointment on the public testimony that was given during the Board of Adjustment appeal. Announcements Mayor Selby announced that the next Assembly work session would be held on Thursday, June 24, 2010, at 7:30 p.m. in the Borough Conference Room. The next regular meeting was scheduled on Thursday, July 1, 2010, at 7:30 p.m. in the Borough Assembly Chambers. ADJOURNMENT JEFFREY moved to adjourn the meeting. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY: Friend, Jeffrey, Kaplan, and Lynch. The meeting adjourned at 10:37 p.m. KODIAK ISLAND BOROUGH ATTEST: Jerome M. Selby, Mayor a, Nova M. Javier, MMCI Borough Clerk Approved: July 15, 2010 • Kodiak Island Borough Assembly Guidelines June 17, 2010 Page 813