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2011-03-16 Regular Meeting KODIAK ISLAND BOROUGH 1J U APR 2 5 2011 PLANNING & ZONING COMMISSION MINUTES ponci FICS 0:F10E March 16, 2011 6:30 p.m. in the Assembly Chambers CALL TO ORDER CHAIR TORRES called to order the March 16, 2011 regular meeting of the Planning and Zoning Commission at 6:34 p.m. PLEDGE OF ALLEGIANCE CHAIR TORRES led the pledge of allegiance. ROLL CALL Commissioners present were Dave King, Brent Watkins, Casey Janz, Bill Kersch, Alan Torres, Jay Baldwin, and Alan Schmitt. A quorum was established. Community Development Department staff present was Bud Cassidy, Director and Sheila Smith, Secretary. APPROVAL OF AGENDA COMMISSIONER JANZ MOVED to approve the March 16, 2011 Planning & Zoning Commission agenda. VOICE VOTE ON MOTION CARRIED UNANIMOUSLY APPROVAL OF MINUTES COMMISSIONER JANZ MOVED to approve the February 16, 2011 Planning & Zoning Commission minutes. VOICE VOTE ON MOTION CARRIED UNANIMOUSLY AUDIENCE COMMENTS AND APPEARANCE REQUESTS There were no audience comments and appearance requests. PUBLIC HEARINGS A) Case 11 -014. Request a Rezone, according to KIBC 17.205.030.B & C (Manner of Initiation), to consider the rezone of Lots D -2, H -1, H -2, G -2 and G -1, U.S. Survey 3218 from B- Business (Lot G -1), am! RR1 -Rural Residential One (Lots D -2, H -1, H -2 and G -2), to R3- Multi- family Residential. (The scope of this case was expanded from Lot G -1 by the commission at the January 19, 2011 meeting to include Lots D -2, H -1, H -2 and G -2.) The applicants are Bruce & Lila Beehler. The location is 3241, 3265, 3283, 3303 and 3325 Mill Bay Road, and the zoning is B- Business (G -1) and RR1 -Rural Residential One (D -2, H -1, H -2, and G -2.) Cassidy reported the commission postponed this case last month and moved to enlarge the rezone area due to concern about spot zoning. RR1 is a rural residential district and probably inappropriate on Mill Bay Road. R3- Multifamily Residential zoning makes more sense than Business because of topography concerns that exists on the backs of those lots. These folks that live there will be grandfathered in their current nonconforming use so they can exist as is. 3/16/2011 P &Z Minutes Page 1 of 8 Forty public hearing notices were sent out with 2 returned; one in favor of the rezone and one opposing. COMMISSIONER KING MOVED to recommend the rezone of Lots D -2, H -1, H -2 and G -2, U.S. Survey 3218, from RR1 -Rural Residential One to R3- Multi - family Residential, and the rezone of Lot G -1, U.S. Survey 3218, from B- Business to R3- Multi- family Residential, and forward this case to the borough assembly with a recommendation for approval, and; To adopt the findings contained in the staff memorandum dated March 3, 2011, as "findings of fact" for this case. Close regular meeting & open public hearing: There was no public testimony. FINDINGS OF FACT 17.72.020 A. Findin • s as to the Need and ustification for a Chan • e or Amendment. The four of five lots in the rezone area is currently zoned RR1 -Rural Residential One which is a large lot low density single - family residential zoning district. This zoning appears to be out of place in the context of being totally surrounded by B- Business zoned land. In addition, the lots are located in the urban area along a developed arterial street with excellent access to utilities, schools and services in the area. The fifth lot is zoned B- Business but developed as residential that is similar to the other lots in the aforementioned RR1 zoning district. The petitioners of this lot have requested the rezone initially, but good zoning practice would discourage the treatment of this one lot to a different set of development standards than any of the surrounding lots currently enjoy. Changing the zoning of these five lots to R3 would not have a major impact on the availability of either the RR1 -Rural Residential One or B- Business zoned land. Generally, multi- family residential is considered a good fit with commercially zoned land as it is an allowed use in some form in all urban commercial zones where municipal water and sewer are available. There may be some concerns about the mixed use nature of the area surrounding the rezone area (B- Business zoned land). On the whole, however, the rezone has more positive attributes than negative, hence the recommendation to make the zoning change from RR1 -Rural Residential One and B- Business to R3- Multi - family Residential. 17.72.020 B. Findin • s as to the Effect a Chan ' e or Amendment would have on the Objectives of the Comprehensive Plan. The 2008 Kodiak Island Borough Comprehensive Plan Update recommends this area for Rural Residential for four of the five affected lots. The fifth lot is recommended to remain Commercial /Business. While it is appropriate to give the plan due deference in these matters, it is clear from review that these designations are not fully consistent with the kinds of land uses currently developed in the area and that the plan designation is largely derived from the prior zoning map and the fact that no one was specifically concerned with the zoning of this area at the time the plan was being compiled. Investigation of the rezone indicates a substantial disconnect between the prevailing commercial zoning and development context of the rezone area which can only be remedied by a deviation from the express designations of the comprehensive plan. This, therefore, may be an exceptional situation whereby the due deference accorded the plan must yield to the more practical and realistic considerations pertaining to the rezone area and how this area can be of benefit to the overall community in the light of future development and use potential represented by these five lots. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY 3/16/2011 P &Z Minutes Page 2 of 8 B) Case 11 -020. Request a Similar Use Determination, according to KIBC 17.15.090.A, and a Conditional Use Permit, according to KIBC 17.200 (Conditional Use Permit), to allow the storage of petroleum contaminated soil on Lot 6, Seaview Subdivision, for the purpose of ADEC approved treatment using a thermal desorption process with a maximum storage of contaminated soil on the site to be no more than 500 cubic yards (700 Tons) stored in ADEC approved storage cells at any given time, as a use that is similar in character and impact to a Petroleum or Flammable Liquid Production, Refining or Storage use (KIBC 17.105.020.F) which is a conditional use in the [- Industrial zoning district. The applicant is T.C. Enterprises, Inc. and the agent is Kevin Arndt. The location is 8400 W. Rezanof Drive and the zoning is 1- Industrial. Cassidy reported this Similar Use Determination and CUP request will allow the applicant to burn soil and remediate contaminated soil. The operation will be located above the LASH dock. This is a technically advanced method of remediation. The commission must determine if what is occurring is similar to what is listed under a conditional use in the Industrial area. State agencies will regulate visible emissions, particulate matter, sulfur, and dust. COMMISSIONER JANZ MOVED to grant a similar use determination in accordance with KIBC 17.15.090, to permit a soil remediation facility on Lot 6, Seaview Subdivision, as a use similar in terms of character and impact to the conditional use specified in KIBC 17.105.020 F for petroleum or flammable liquid production, refining or storage, subject to any stipulations and conditions of approval determined to be appropriate through the conditional use process provided by KIBC 17.200 Conditional Use Permits, and to adopt the findings in the staff report dated March 4, 2011 in support of this determination. Close regular meeting & open public hearing: Kevin Arndt, TC Enterprises, stated we can only have 500 yards on site and it's considered dirty until the test comes back saying it's clean. The last time he went through this process a $300 a ton bond fee was required. The system is more efficient than anything he's seen on the market. It's been used in Alaska once successfully and is used in the lower 48. It was a former DEC employee that developed this system and it's very simple. Without an air quality permit from ADEC we can only do 5 tons an hour but the system can put out 100 tons an hour. Our intent is to start out with 5 tons an hour and work from there. The system will also be mobile. Close public hearing & open regular meeting: In response to COMMISSIONER JANZ' inquiry of will they have to get another permit to allow them to operate at another location, Cassidy said the zoning has to be compatible with the use. SIMILAR USE FINDINGS OF FACT 1. The proposed soil remediation use is similar in terms of the character and impact to a "petroleum production, refining or storage" use as provided in KIBC 17.24.020.F, because both processes are used to convert petroleum products from one form into another through the application of high temperatures, both uses involve the storage of petroleum products onsite, both uses have similar emissions and both uses are generally subject to ADEC regulations subject to certain variations based upon the scale of the use. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY COMMISSIONER SCHMITT MOVED to approve a conditional use permit in accordance with KIBC 17.200, to permit a soil remediation use to be established on Lot 6, Seaview Subdivision which is located in the I- Industrial zoning district, subject to the conditions of approval 3/16/2011 P &Z Minutes Page 3 of 8 contained in the staff report dated March 4, 2011, and to adopt the findings in that staff report as "Findings of Fact" for this case. CONDITIONS OF APPROVAL 1. Prior to operations of this facility, the applicant must contact ADNR to determine whether a coastal consistency determination is required and satisfy applicable Alaska Coastal Management (ACMP) review requirements if it is determined that a consistency review is necessary. 2. To ensure protection of nearby tidelands, strict compliance with the State's Wastewater Disposal Regulations (18 AAC 72.600) addressing soil storage and treatment cells, and with the EPA's Spill Prevention Control and Countermeasure Requirements addressing fuel storage tanks is required. 3. This CUP approval is granted subject to written approval by ADEC of an operations plan as specified by 18.AAC.78.273 and 18.AAC.75.365 detailing an engineered facility diagram and process description, and addressing contaminated soil containment, site monitoring procedures, confirmation sampling of treated soil, initial assessment of background contamination, and closure assessment. Failure to process soils according to ADEC's satisfaction will invalidate this CUP. 4. Any expansion or enlargement in scope of the operation described in the CUP application narrative dated January 31, 2011, requires prior approval by the Commission at public hearing. 5. The contaminated soil storage on the site shall not exceed a total of 700 tons, from all sources, as indicated in the narrative submittal January 31, 2011. 6. Upon final demobilization of the equipment, the site shall be cleaned consistent with the ADEC Operations Plan within 60 days. FINDINGS OF FACT 17.200.050 A. That the conditional use will preserve the value, spirit, character and integrity of the surrounding area. Strict application of the controls and safeguards required by the conditions of approval will ensure preservation of the value, spirit, character and integrity of the surrounding area. This property is well suited for the proposed activity, well away from any residential neighborhood and with good traffic access. State statues exercise strict control over offsite and portable contaminated soil treatment facilities, including approval by the State Department of Environmental Conservation (ADEC) of an operations plan before the facility can be assembled and placed in operation, and before any contaminated soil can be delivered to a site. 17.200.050 B. That the conditional use fulfills all other requirements of this chapter pertaining to the conditional use in question. Based on the site plan and accompanying narrative description of the use, it appears that, with the requirement for compliance with an operations plan approved by ADEC, the conditional use permit will fulfill all other requirements of KIBC 17.200 (Conditional Use Permit) and KIBC 17.105 (Industrial Zone) of Borough Code. Parking and vehicular circulation requirements are satisfied and good access and visibility exists for truck ingress and egress to and from the highway. 17.200.050 C. That Prantin' the conditional use permit will not be harmful to the public health, safety. convenience and comfort. 3/16/2011 P &Z Minutes Page 4 of 8 ADEC will approve the operations plan only with a determination that the operations are protective of human health, safety, and welfare, and of the environment. CUP approval granted subject to approval of the operations plan by ADEC will provide a measure of assurance that concerns about human and environmental health and welfare are satisfactorily addressed. Also required by ADEC are an engineered Surface Water Management Plan and a quality assurance plan to guarantee only petroleum- contaminated soils containing no toxic waste are brought to the site for remediation. 17.200.050 D. That sufficient setbacks, lot area. buffers or other safeEuards are being provided to meet the conditions listed in subsections A through C of this section. The Commission can require whatever screening or buffering it finds appropriate to preserve the value, spirit, character and integrity of the surrounding area. In this case, staff has not found it necessary to recommend buffering or screening since there are essentially no other non - industrial uses adjacent to the treatment cell operations. In addition, the site will be setup approximately 100 feet back from the public road and at a different elevation than the road. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY OLD BUSINESS A) Case 11 -013. Adopt Findings of Fact in support of the commission's decision to grant approval for a Variance, according to KIBC 17.195 (Variances) for the grant of a variance from KIBC 17.75.050.A (Front Yard) which would allow a second -story addition atop an existing single -story residential structure that encroaches 9.5 feet into the required 25 foot front yard setback; and, A Variance for a single -story garage addition to the same nonconforming residence that would encroach no more than 21.5 feet into the required 25 foot front yard setback; and, A Variance from KIBC 17.75.050.B (Side Yard) to allow a residential addition to encroach no more than 4.15 feet into the required 10 foot street -side setback. The applicant is Robert Dierich. The location is 111 Bancroft Drive and the zoning is R3- Multifamily Residential. Cassidy reported the commission approved 3 Variances at the February meeting and postponed Findings of Fact until the March meeting. The Findings of Fact are based on commissioner submittals that staff has put into memo form. Staff recommends approval. COMMISSIONER WATKINS MOVED to adopt the findings contained in the memorandum dated March 3, 2011 as "Findings of Fact" in support of the approval of three variances as requested in Case 11 -013. FINDINGS OF FACT 17.195.050 A.1. Exceptional physical circumstances or conditions applicable to the property or intended use of development, which generally do not apply to other properties in the same land use district. The lot is conforming in terms of lot width (60 feet) and lot area (8,100 square feet) with a rectangular shape that is very similar to other lots in the same zoning district. It would be difficult and against good planning practice to require vehicular access to the rear yard from Mill Bay Road, an arterial street, and there are topographical constraints that may also make this exceedingly difficult to achieve. Vehicular access for parking is limited to the Bancroft 3/16/2011 P &Z Minutes Page 5 of 8 side of the property from a practical standpoint. Driveways for corner lots are typically required to access on the local street side with the lower functional classification. The placement of the existing residential structure is not square with the lot boundaries. It is recognized that this corner lot has much greater separation distance from the developed Mill Bay Road due to the city having a 100 foot wide right -of -way along this stretch. The city has granted approval for a fence encroachment substantially in the right -of -way and it is unlikely that Mill Bay Road will ever be widened beyond the existing three -lane design with sidewalks, curbs and gutters. 17.195.050 A.2. Strict application of the zoning ordinances would result in practical difficulties or unnecessary hardships. Strict application of the zoning ordinance would result in practical difficulties for all the requested variances. There is plenty of room in the rear yard for residential additions, however a single -story entry way addition can only be added to the front of the existing structure. Given the additional clearance to the street on the Mill Bay Road side of the lot, a single story addition encroaching no more than 4.15 feet will still maintain a five (5) foot side yard setback which is the typical standard for interior lots. 17.195.050 A.3. The granting of the variance will not result in material damages or prejudice to other properties in the vicinity nor be detrimental to the public's health, safety and welfare. The granting of the variances, as requested by the petitioner, will not result in material damages or prejudice to other properties in the area. 17.195.050 A.4. The • rantin • of the variance will not be contrar to the objectives of the Comprehensive Plan. Granting of the variance will not increase existing density or alter any permitted land uses on this lot. The variances would not be contrary to the objectives of the Comprehensive Plan which designates this area as residential. 17.195.050 A.S. That actions of the applicant did not cause special conditions or financial hardship from which relief is being sought by the variance. The actions of the applicant have not caused the conditions for which relief is being sought by variance. 17.195.050 A.6. That the granting of the variance will not permit a prohibited land use in the district involved. The proposed single - family residence will remain consistent with the requirements of the R1- Single- family residential zoning district. ROLL CALL VOTE ON MOTION ' CARRIED 6 -1. The ayes were COMMISSIONERS KING, WATKINS, JANZ, KERSCH, TORRES, and BALDWIN. The no was COMMISSIONER SCHMITT. NEW BUSINESS A) Case 11 -022. Request a review of a detailed site plan, according to KIBC 17.130.020 (Permitted Uses), to consider the development of a new State of Alaska office building and related parking facilities on a portion of Lot B -1A, U.S. Survey 4947, (Plat 2010 -8), for eventual use by the Alaska Department of Fish & Game. The applicant is the Kodiak Island Borough and the agent is Bob Scholze, Resource Management Officer. The 3/16/2011 P &Z Minutes Page 6 of 8 location is generally located at 301 Research Court on Near Island and the zoning is PL- Public Land Use. Cassidy reported this parcel is where the new Fish & Game building is to be constructed. You have reviewed multiple cases associated with this project; a subdivision, a Rezone, and now that it's zoned to PL one requirement is the commission review a site plan. COMMISSIONER JANZ MOVED to grant approval of the site plan review for the proposed ADF &G facility and site development and site improvements to be located on Tract B -1A, U.S. Survey 4947 and in accordance with KIBC 17.130.0200). FINDINGS OF FACT 1. A detailed site plan for the proposed ADF &G building as designed by ECI /Hyer Architects and reviewed and approved by the Kodiak Island Borough Architectural and Engineering Review Board (ARB) and submitted by the Resource Manager shows that due consideration for meeting the all requirements for construction in the PL- Public Use Zone have occurred. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY COMMUNICATIONS A) Appeal to the Hearing Examiner - Case 11 -004 B) Appeal to the Assembly - Case S11 -006 C) Shakmanof Quarry - DNR Permits & Approvals D) Letter of Courtesy & Advisory re: the accumulation of junk, garbage, and abandoned vehicles dated February 7, 2011. E) Letter of Courtesy & Advisory re: the occupancy of two single family dwelling units on a Rural Residential One zoned lot and tenancy extension dated February 2, 2011. F) Notice of Continuing Violation re: maintaining a junk yard and the improper construction of a detached accessory building dated February 7, 2011. G) Letter of Courtesy & Advisory re: the establishment of a non - permitted use of maintaining agricultural buildings and activities in the Rural Residential Zoning District dated February 8, 2011. Cassidy gave an update on the communications. COMMISSIONER WATKINS MOVED to accept communications as presented. VOICE VOTE ON MOTION CARRIED UNANIMOUSLY REPORTS A) Meeting Schedule: • April 13, 2011 work session at 6:30pm in the KIB Conference Room. • April 20, 2011 regular meeting at 6:30pm in the Assembly Chambers. B) Minutes of Other Meetings • January 11, 2011Parks & Recreation Committee Minutes • January 25, 2011 Parks & Recreation Committee Minutes C) Abbreviated and Final Approval - Subdivisions Cassidy gave a brief report. COMMISSIONER WATKINS MOVED to accept reports as presented. 3/16/2011 P &'Z Minutes Page 7 of 8 VOICE VOTE ON MOTION CARRIED UNANIMOUSLY AUDIENCE COMMENTS There were no audience comments. COMMISSIONER'S COMMENTS Alan Schmitt said he understands the manager's decision regarding the wind generator case but the neighbors should have come to the P &Z meetings and they didn't, and it rubs him the wrong way. Schmitt also has a trip planned and will be off island for the next regular meeting but will attend the work session. Brent Watkins said the high school planning has to 3 concepts to move forward. There's another meeting Tuesday evening at the Refuge Visitor's Center from 6 p.m. - 8 p.m. that is open to the public. Casey Janz said the Parks & Rec Trails Plan is continuing to move along. We're going through page by page reviewing the draft. A lot of good comments have come forward. She also thought the Code Revision meetings were enlightening and she was impressed with the different perspectives from the different groups. About 60 people attended the Kodiak meeting, and Chiniak was well attended also. Chiniak's concerns were different from what the town's concerns were. She also attended the Koniag Roundtable. Alan Torres said regarding the appeal -S11 -006; we've had many cases where it's been neighbor against neighbor and he's glad to see these neighbors got together to worked things out. He apologized for missing the Code Revision meetings, he was ill. Torres said he was confronted by 2 different people about an upcoming case and wanted to remind the commission that if they get calls or someone want to talk about the case to direct them to come to the meeting or contact Community Development if they have questions. ADJOURNMENT COMMISSIONER SCHMITT MOVED to adjourn. VOICE VOTE ON MOTION CARRIED UNANIMOUSLY CHAIR TORRES adjourned the meeting at 7:28 p.m. KODIAK ISLAND BOROUGH PLANNIN &ZO . COMMISSION y. Alan Torres, Chair ATTEST By: ( p ) i} Sheila Smith Community Development Dept. APPROVED: April 20, 2011 3/16/2011 P &Z Minutes Page 8 of 8