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BELLS FLATS TR A BK 3 ALL - Code Enforcement (2)Duane Dvorak From: Walter Mason tWalter@jesmsea.cornj Sent: Thursday, December 19, 2002 10:28 AM. To: Duane Dvorak Subject: RE: Soil Remediation Case Thanks Duane. I think we can just give them the decision file, as that's what the lawsuit is based on. Walt >>> "Duane Dvorak" <ddvorak@kib.co.kodiak.ak.us> 12/17/02 05:41PM >>> Walt, received your message and planning to have copies made Thursday or Friday. Will keep you informed as we 'move through the holidays. Do we want to include all related information of just the file related to the decision that is being appealed? Specifically, I am referring to all the environmental complaints that have come in since the use began operation. --Duane Message-- Froth: Walter Mason [mailto:Walter@jesmsea.com] Sent: Tuesday, December 17, 2002 10:09 AM To: Duane Dvorak Subject: Soil Remediation Case Duane-- . We have to provide what are called Initial Disclosures to the other side by January 6th, and I'd like to start fleshing those out now. draft the "factual basis of each . . . defense," and we can go over them, but, in the meantime, if you could provide the following that would be great: 1. name, address, and phone number of each individual likely to have discoverable information relevant to disputed facts. This would be George, the Brechan people, KIB people involved in the matter, DEC, and the more involved neighbors, as well as any other people that you think might fit within the requirement. 2. have any written or recorded statements been made? If so, we need to give the name, address, and phone number of the person along with a copy of the statement. 3. a copy of all documents, data compilations, and tangible things relevant to disputed facts. I think we talked earlier about the need to get a copy of everything KIB has that's related to this matter. 4. photographs, diagrams and videotapes. Do we have any? Thanks. Duane Dvorak From: Walter Mason [Walter@jesmsea.com] Sent: Tuesday, December 17, 2002 10:09 AM To: Duane Dvorak Subject: Soil Remediation Case Duane-- We have to provide what are called Initial Disclosures to the other side by January 6th, and I'd like to start fleshing those out now. I'll draft the "factual basis of each . . . defense," and we can go over them, but, in the meantime, if you could provide the following that would be great: 1. name, address, and phone number of each individual likely to have discoverable information relevant to disputed facts. This would be George, the Brechan people, KIB people involved in the matter, DEC, and the more involved neighbors, as well as any other people that you think might fit within the requirement. 2. have any written or recorded statements been made? If so, we need to give the name, address, and phone number of the person along with a copy of the statement. 3. a copy of all documents, data compilations, and tangible things relevant to disputed facts. I think we talked earlier about the need to get a copy of everything KIB has that's related to this matter. 4. photographs, diagrams and videotapes. Do we have any? Thanks. Duane Dvorak From: Sheila Miller [SMiller@jesmanc.com] Sent: Tuesday, December 03, 2002 9:40 AM To: Duane Dvorak Cc: Walt Ebell Subject: RE: The New Illustrated Book of Development Definitions Thanks so much for the info - I'll get it to Bill Cummings. >>> "Duane Dvorak" <ddvorak@kib.co.kodiak.ak.us> 9:16:51 AM 12/3/2002 >>> Sheila, I went back to the APA Bookstore site and it appears that they are still selling the older version of the book that we have in our library, so that may be the better place to procure a copy most similar to the one we have been relying on for the past ten years or so. I am going to order the latest version from the Center for Urban Policy Research in order to evaluate it for differences with 1993 version. --Duane Duane Dvorak From: Sheila Miller [SMiller@jesmanc.com] Sent: Tuesday, November 26, 2002 3:42 PM To: Duane Dvorak Subject: The New Illustrated Book of Development Definitions Bill Cummings has been looking all over for a copy of this book and wonders if he might borrow it from you. If he can, you could send it to me and I could get it to him or you could just send it to him - however it is easiest. Sheila Miller Jamin, Ebell, Schmitt & Mason 1007 West 3rd Avenue, Suite 201 Anchorage, AK 99501 278.6100 1 Poop Sheet Or a sum(' ;ry of where WBCC stands t Thy 11 -07 -02 Womens Bay Community Council met Monday, 11/4/02 and it was made evident from interested community member in attendance that communication was a missing link for the Council. Because we have some client - lawyecinformation that is privileged, we have withheld some information. However, here's what we can share with you: An offer by the Borough's lawyer (Walt Ebel() has been made to our lawyer(Bili Cummings) and is under consideration. If our bottom line is that we want the soil plant out of our neighborhood, then that is what we're willing to fight for. We're hoping to negotiate a settlement that will be quick, fair and appropriate. More news as we can share it. The good news tonight is that the Borough has suspended SPI activity until more testing is done. We can only hope it's a real chance for SPI to cease and desist in our neighborhood See the Kodiak Daily Mirror 11/7/02 Karen Yashin has the Don't Move that Site Bumper Stickers if you need one The following is a condensed copy of the minutes from the meeting, 11/04/02: a.) Fundraising- Rose Cobis- the "Ball" is coming along nicely. Any donations of Art or otherwise should be in by Nov 13(Ball is the 16th). Call Rose 7 -2507, Peggy 7 -2395, or Cowboy 7 -4479 for pickup. Advertising is set, and we will have people on Hotline Nov 15. b.) Comprehensive Plan- the consultant contract will be awarded at this Thursday Borough Assembly meeting(7th) for the amount of $37,000.00. It will be in force until Dec 2003, if necessary. It appears that staff intends to limit our input to that of any individual, and it looks like two public meetings will be scheduled for our community. Ben- we need to put together the info from our survey for this process. We will have council members at the 11/7/02 Assembly meeting, and all others.We must continue to be proactive in our planning c.) Ordinance changes- Similar use changes come up for their second reading Thursday, 11/7/02. Appeals and Noise are still in progress, and will come before P &Z first. d.) Bylaws- Ben, Cowboy, and Bill Williams have worked on this. Bill's comments are to not try to merge these documents, but use them in specific areas. We will put together a meeting with Bill to pursue this. e.) Letter to Sen. Stevens' Aide & EPA /ADEC Mr. Egan is an aide to Senator Stevens who was greeted by several energetic Bell's Flats residents at the American Legion recently. We reviewed our problem, and that we would like the feds .to cease the delivery of contaminated soil from federal sites on Kodiak. We need to get this request to him ASAP. If additional documentation is asked for, we will follow up. Jack Doyle has already faxed Egan some background info. It was thought that we should communicate with the EPA on related matters simultaneously. We would like the EPA to look into discrepancies in the ADEC communications and responses to our requests for testing. The "timeline" for the trail of correspondence on this is important. Gary shared information about various testing methods, and the complications brought on by the heavy rains. New Business: a.) Resignation Nancy Wells presented her resignation. We accept with much regret, and an invitation to come back any time. b.) Election =Jack Doyle elected to replace Nancy unanimously, as there were no other nominations, Laurie Madsen was elected to become Chairman. Citizen- com.m.ents :.�, ,... ,fier6i en;�u *1 Rw �d�e Fang ng discussion on the letter to Mr. Egan. .any comrnents-were-heardto the point that the Council needs to make a greater effort to communicate with our constituents, arid'keep them better informed. Laurie will start on that immediately. i ' -= .We discussed Shari Doyleu s complaint on the flood waters running off the SPI site, and the new bureaucratic dodges to ignorq the situation. ..Maly Mathes discussed•sedirient testing of Lake Orbin and the "pit" should continue to be a high .....ptioti take advantage'of those photographic opportunities as they arise. Next regular meeting Dec 3, 2002 Duane Dvorak From: Horwath, Paul [PaulHorwath©envircon.state.ak.us] Sent: Monday, October 07, 2002 5:15 PM To: Duane Dvorak Cc: Horwath, Paul Subject: Your Phone Call RE: SPI Appeals Duane: I just found a note I had written to myself to return a phone call to you and I can't remember if I got back to you or not on your phone message to me regarding appeals that were filed with ADEC regarding our decisions on SPI's soil treatment facility operations plan in Bells Flats. We did receive a request for an informal review of our decision to approve SPI's Operations Plan. This review is conducted by our Director of the Division of SPAR, Mr. Larry Dietrick and is the first level administrative appeal. I have a copy of both the request for informal review, and Director Dietrick's response/determination and could fax them to you if you haven't already seen them. So let me know if you would to receive these documents. To my knowledge, no further appeals have been filed with ADEC. And the timeframe for administrative appeals to ADEC's Commissioner (called a request for an Adjudicatory Hearing) has expired. So I don't believe additional administrative appeal processes are available at this point in time, unless ADEC's Commissioner was willing to accept an appeal at this late date. Sorry for not getting back to you sooner. Best Regards, Paul Horwath Duane Dvorak From: Walter Mason [Walter@jesmsea.corn] Sent: Friday, September 27, 2002 11:41 AM To: Duane Dvorak Subject: Re: soiltreatguid.pdf Many thanks on this and the fire marshal information! >>> "Duane Dvorak" <ddvorak@kib.co.kodiak.ak.us> 09/27/02 12:39PM >>> Walt, here is a guide book from ADEC that describes various soil treatment facilities. Perhaps it should be clarified in the response that this case pertains to a Category C soil treatment facility as defined by ADEC. This is referenced on the zoning compliance permit and in the ADEC approved operations plan on file with zoning compliance permit. The similar use determination does not really address heirarchy of different classes of facility. --Duane <<soiltreatguid.pdf>> Duane Dvorak From: Wafter Mason [Walter@jesmsea.com] Sent: Wednesday, September 25, 2002 1:27 PM To: Duane Dvorak Subject: Re: FW: Soil Remediation plant Hi Duane-- Sorry for the delay in getting back to you. I'm still wrestling with the answer, trying to devise a way to respond to opinion-filled, argumentative conclusions that may contain some elements of factual accuracy, so I can't just say "admitted" or "denied." I therefore haven't had a chance to look at what I've received from you, but hope to get to that by the end of the day. In the meantime, I have a question about the final sentence in paragraph 61 of the complaint. You indicated that there was no requirement for asking the fire department to create a response plan, and my notes show that the state fire marshall (as delegated to the Kodiak Fire Department) approved the plant. Am I correct in understanding that the fire marshall did sign off on the plant and that KIB has not asked any fire departments for a response plan? Thanks, Walt >>> "Duane Dvorak" <ddvorak@kib.co.kodiak.ak.us> 09/23/02 07:13PM >>> Walt, here is the message that I sent to Pat with the citation for AS 11.61.110 (Disorderly Conduct) that I received from Trooper Sgt. Maurice Hughes regarding the overnight noise issue in Womens Bay. Send me a list of the file items that you have presently and I will fill in whatever documents that you need from our file information. Also, your response to this e-mail will let me know that I have your address entered correctly in my address book. --Duane Duane Dvorak, Director Community Development Department Kodiak Island Borough 710 Mill Bay Road Kodiak, Alaska 99615 (907) 486-9360 «Duane Dvorak (E-mail) .vcf>> Original Message ----- > From: Duane Dvorak > Sent: Monday, September 09, 2002 4:59 PM > To: Pat Carlson > Subject: FW: Soil Remediation plant > FYI, I called Sgt Hughes regarding the preceding e-mail below and he re-iterated that they have the power to press criminal "disorderly conduct" charges if they feel the noise at night is unreasonable. That determination would have to be made by the responding officer, but he has contacted SPI based on this weekend's complaint and told them that it is a possibility that could face charges if they keep operating at night. He referred to AS 11.61.110 as the authority. --Duane Original Message > From: Erin Whipple > Sent: Monday, September 09, 2002 4:01 PM > To: Duane Dvorak / (--\) > Cc: Pat Carlson; Martinick > Subject: Soil Remediation plant > Sgt. Hughes with the Troopers called to discuss noise complaints they have received in their office. Apparently they received a complaint last night of shots fired in that area so they sent a trooper out. They could find no evidence of shots fired and the complainant had the trooper listen to the noise from the plant. They had received complaints prior to this but had not had a trooper respond. Anyway, the trooper felt the noise was somewhat loud. > George told them that we had taken readings and that they were in compliance with the noise levels currently required by the I-zone. I reiterated that we had taken readings, with the highest being around 77, and that the zone did require less than 90 decibels. > Sgt Hughes said that the state statute that covers this is their disorderly conduct statute and it is kind of open ended. It reads that a person is in violation if the noise is determined to be louder than what a normal person would consider reasonable. He said that if they are called again and found to be in violation of this statute they would be issued a cease and desist order. If they didn't comply with that they would be issued a summons. > I also told Sgt. Hughes that we have received complaints as well, and that Duane was working on a draft ordinance for noise violations in response to the complaints, but that it would have to go through an approval process to be adopted. > If you have any questions for Sgt. Hughes he can be reached at 486-4121. > Erin Whipple, Secretary > Kodiak Island Borough > Community Development Department > (S07) 486-9363 Duane Dvorak From: gary carver [wooak @ptialaska.net] Sent: Wednesday, September 25, 2002 8:57 PM To: Womens Bay Community Members Subject: Thursday meetings From: Sheila Roberts, Womens Bay Community Council To: Community members It's time to divide and conquer Cowboy, Ben, Jack and Shari had a very positive experience at the City Work Session. The City was discussing giving SPI more soil to burn. After listening to our fellow Bells Flats persons they decided to postpone awarding them the bid at their Regular Meeting until our litigation was final! With that said, Thursday, September 26 has Several events that we are trying to gather support and visibility. Thursday, September 26; 7:30 p.m. - City Regular Meeting. We should be represented to thank the City for listening and working with our community and making sure that the award does indeed get postponed. Also at the same time down the hall Borough Work Session....word has it that the noise ordinance will be on the agenda! Duane Dvorak From: gary carver [wooak @ptialaska.net] Sent: Thursday, September 12, 2002 1:47 PM To: Womens Bay Community Members Subject: Meet the Candidates The Women's Bay Community is sponsoring a "Meet the borough Assembly Candidate" night at the Womens Bay Firehall on Wednesday, September 18th beginning with a social time at 7pm, followed by the forum at 7:30. Come ask questions of our assembly candidates and learn about their views on the issues. WBCC Duane Dvorak From: Pat Carlson Sent: Monday, September 09, 2002 8:28 AM To: Duane Dvorak Subject: RE: Litigation Question Morning Duane, can we talk about this when you get a minute ?? Original Message From: Duane Dvorak Sent: Friday, September 06, 2002 5:17 PM To: Pat Carlson Subject: Litigation Question Pat, we have received a number of complaints related to soil remediation use in Bells Flats. It has been my inclination to continue to process and respond to these issues in accordance with our enforcement policy, to the extent that the complaints relate to relevant zoning standards. However, with the advent of the litigation, I am thinking that we may want to modify our approach to processing complaints so that all correspondence related to this matter is routed through your office prior to release. Also, I am reluctant to take anonymous compliants and rants by telephone given the fact the that a civil complaint is pending. I was encouraging people to make formal complaints if they want a formal response, but I now want to make sure that we don't say something inappropriate. I am also concerned about public perception if we say and do nothing about complaints. Please advise how you think we should proceed so that I may properly brief the department staff. Thanks. - -Duane Duane Dvorak, Director Community Development Department Kodiak Island Borough 710 Mill Bay Road Kodiak, Alaska 99615 (907) 486 -9360 « File: Duane Dvorak (E- mail).vcf » 1 Duane Dvorak From: gary carver [wooak@ptialaska.net] Sent: Thursday, August 29, 2002 8:52 AM To: Womens Bay Community Members Subject: regular meeting WBCC THE WOMENS BAY COMMUNITY COUNCIL REGULAR MONTHLY MEETING TUESDAY SEPTEMBER 3, 2002 7:00 PM - FIRE HALL. The Womens Bay Community Council will hold their regularly scheduled monthly meeting on Tuesday evening, September 3, 2002 at 7:00 pm at the Fire Hall. All community residents are invited to attend and participate. Duane Dvorak From: Horwath, Paul [Paul_Horwath @envircon.state.ak.us] Sent: Wednesday, August 14, 2002 5:58 PM To: Duane Dvorak Cc: Robert Scholze; Frechione, Jim; Horwath, Paul Subject: Soil Processing, Inc. (SPI) - Kodiak, Category C Soil Treatment Facility Approval I wanted to let you know that George Cline's Category C soil treatment facility, located in Bells Flats, Kodiak, received ADEC approval to accept and treat contaminated soil yesterday. I faxed you a copy of ADEC's approval letter yesterday evening. The fax was sent to 486 -9396. You are cc'd on the letter, and should also receive a hard copy of the ADEC approval letter through the US Postal Service by the end of the week. Feel free to give us a call if.you have any questions regarding the approval letter, or any other aspect of SPI's facility. Paul Duane Dvorak From: gary carver [wooak @ptialaska.net] Sent: Tuesday, August 13, 2002 4:02 PM To: Duane Dvorak Cc: WB Community Council Subject: Re: Draft RFP for Womens Bay Community Plan update Dua::e Yes, I got a FAX copy of the RFP information you sent late last week and will circulate it to the rest of the council tonight at our special meeting. We have not had a chance to review it yet but will do so ASAP and get back to you with any comments we have. Thank you very much for keeping us in the loop. We are very interested in providing constructive input. This is a matter of great concern to our community. gc on 8/13/02 3:31 PM, Duane Dvorak at ddvorak @kib.co.kodiak.ak.us wrote: > Gary, I am writing to confirm that you recieved a FAX of the above reference > RFP last Friday and to see if the WBCC intends to provide feedback on the > draft proposal. I would be happy to answer any questions about the proposal > or process after the WBCC has had a chance to review the draft. - -Duane > Duane Dvorak, Director > Community Development Department > Kodiak Island Borough > 710 Mill Bay Road > Kodiak, Alaska 99615 > (907) 486 -9360 > «Duane Dvorak (E- mail).vcf» Duane Dvorak From gary carver [wooak @ptialaska.net] Sent: Monday, August 12, 2002 1:10 PM To: Womens Bay Community Members Subject: WBCC special meeting There will be a special meeting of the Womens Bay Community Council on Tuesday August 13th at 7:00 pm at the Womens Bay Fire Hall. All community residents are invited to attend. Agenda items include: 1) The Contract with Ashburn & Mason 2) Establishing fund raising /disbursal procedures 3) A Plan of action 4) Protocols for council members during legal proceeedings Duane Dvorak From: gary carver [wooak@ptialaska.net] Sent: Friday, August 09, 2002 8:54 AM To: Womens Bay Community Members Subject: Assembly meeting 8/8/02 From Nancy Wells, WBCC chair After meeting with their counsel in executive session, the borough assembly announced that there is no provision under borough code to allow for a petition of review of the permit issued for SPI, as they had previously and erroneously indicated at last weeks assembly work session. To paraphrase the mayor, " Our codes are a mess, but we can not address this retroactively." They all wished us good luck! Duane Dvorak From: gary carver [wooak@ptialaska.net] Sent: Friday, August 09, 2002 8:44 AM To: Womens Bay Community Members Subject: Potluck Sunday, August 18 Community Potluck The Womens Bay Community Council is sponsoring a community get together and potluck on Sunday, August 18th from 1:00 - 5:00 pm at the Fire Hall. Hot dogs, hamburgers, and soda will be provided. Community residents are asked to bring either a salad, dessert or side dish to share. This is an action picnic. The WB Fire Department will be providing information and explaining how to join. Petitions for Borough Assembly, School District Board and service district seats will be available. The Womens Bay Council Members will be there to listen and to answer questions. There will be a sign up table for committees we need to form. You can give your imput on what you would like the community to look like in the future. We have also asked the Troopers to have someone available to speak about re-vitalizing our neighborhood watch program. Come and enjoy sharing with your neighbors and friends. See you at the Potluck!!!! Duane Dvorak From: gary carver [wooak@ptialaska.net] Sent: Wednesday, August 07, 2002 10:11 AM To: Womens Bay Community Members Subject: KB! assembly work session Thursday - please attend All Womens Bay Residents Make your concerns known to the Assembly Members Attend the Borough Work Session Thursday, August 8, 2002 at 7:30 pm downstairs conference room. The Assembly will be meeting with the Planning and Zoning Department and Commission to discuss zoning issues during their work session this Thursday evening. The procedures for the appeal of the soil remediation peiiiiit should be discussed. It is important that the Womens Bay Community be present at this meeting. The Assembly needs to know that this is a critical issue for many community residents. Now is the time to make our numbers visible. Attend the meeting, bring a spouse, a friend or a neighbor. We need them to understand the depths of our concerns by our presence. We will present our concerns and questions in an orderly manner during the public comment period. Come and watch our government at work. Duane Dvorak From: gary carver [wooak @ptialaska.net] Sent: Monday, August 05, 2002 9:24 PM To: Womens Bay Community Members Subject: Council meeting The regular monthly meeting. of the Womans Bay community council will be Tuesday, Aug 6, 7:00 PM at the firehall. Duane Dvorak Fran: Pat Carlson Sent: Monday, August 05, 2002 11:11 AM To: Duane Dvorak Subject: RE: Womens Bay Update They took the money and made a receipt out to the Council which does not legally exist. I don't know why a "person" didn't appeal and the statement was that it would be a petition. I don't know if it really matters though. Original Message From: Duane Dvorak Sent: Monday, August 05, 2002 11:09 AM To: Pat Carlson Subject: Womens Bay Update Pat, you left your copy of the most recent correspondence from Bill Cummings in my office on Friday, regarding a notice of appeal. Let me know if you need that back. I FAXED a copy of this most recent letter to Walt Ebell along with the department determination and the first letter from Bill Cummings. The rest of the backup file information was sent out on Friday and should arrive at Walt's location today. After you left last week, Nancy Wells came in to the Clerk's Office to pay for an appeal to the Assembly late Friday afternoon. I understand that the Clerk's Office accepted the $150.00 payment with the understanding that the request is intended to preserve any appeal rights that may exist within 10 working days of the issuance of BZ 02 -061. I haven't seen any paperwork with that unless this latest letter is it. -- Duane Duane Dvorak, Director Community Development Department Kodiak Island Borough 710 Mill Bay Road Kodiak, Alaska 99615 (907) 486 -9360 « File: Duane Dvorak (E- mail).vcf » 1 Duane Dvorak From: Pat Carlson Sent: Friday, August 02, 2002 7:51 AM To: Duane Dvorak Subject: RE: I looked at the propane tanks in the flats. I believe thatthey are empty. Morning Duane, can you come down when you get in ? ? ?? Pat --Original Message From: Duane Dvorak Sent: Thursday, August 01, 2002 4:20 PM To: 'Andy Nault' Cc: Pat Carlson Subject: RE: I looked at the propane tanks in the flats. I believe thatthey are empty. Andy, thanks for checking that out. I have spoken to Bill Oliver and made them aware that we need to talk about the diversion of waste material to this site and that they may not be able to do open burning while this soil remediation setup is in place. He may try to contact you at some point for clarification. I told him that you would be checking it out in the field. Have you had any contact with Dale Rice about the status of the tanks? If not I may give him a call. Thanks again. - -Duane Original Message From: Andy Nault [mailto:anault @city.kodiak.ak.us] Sent: Thursday, August 01, 2002 4:03 PM To: Duane Dvorak Subject: I looked at the propane tanks in the flats. I believe thatthey are empty. I looked at the propane tanks in the flats. I believe that they are empty. I also noticed that Brechan's has hauled in a lot of scrap lumber for disposable. Andy Nault 1 Duane Dvorak From: Andy Nault [anault@city.kodiak.ak.us] Sent: Thursday, August 01, 2002 4:03 PM To: Duane Dvorak Subject: I looked at the propane tanks in the flats. I believe thatthey are empty. I looked at the propane tanks in the flats. I believe that they are empty. I also noticed that Brechan's has hauled in a lot of scrap lumber for disposable. Andy Nault Duane Dvorak From: gary carver [wooak@ptialaska.net] Sent: Monday, July 29, 2002 7:19 AM To: Womens Bay Community Members Subject: report on special meeting WOMENS BAY COMMUNITY NEWS On July 28th the Womens Bay Community Council held a special meeting to discuss legal options regarding the soil remediation facility. Community members had an opportunity to meet Bill Cummings of the Anchorage firm, Ashburn and Mason, who is being retained by the WBC Council. The meeting was well attended by the public. Three items addressed in executive session for immediate action: 1- Complete and file the necessary documents for the Womens Bay Community Council to obtain non-profit status. 2- Compose and deliver a letter to the Borough stating our belief that KIB failed to follow zoning procedures, citing the irregularities which make this permit invalid. This letter will request that they rectify the errors and proceed with the process of a "Conditional Use Permit" for the soil remediation facility or begin the process to amend the borough code. 3- File a request for review of the ADEC permit for this site. Everybody was united in hoping that the Borough would take this opportunity to reconsider a decision based on, in their own written statement, "recollection". Hopefully, legal action can be al/bided, but it was the conTensus of the community attending and the council members that we will pursue legal action given no alternative. Council members will be attending the Assembly work session and regular meeting on this Thursday, August 1. The work session will take place at 6:30 pm and be followed by the regular Assembly meeting. The WBC Council will keep the public advised as to the response of the borough and assembly members. Mr. Cummings has requested that any one having correspondence or emails with any of the parties involved, ADEC, the borough, SPI or Brechan, provide copies of these documents. Please contact either Jim Cobis (487-4479) or Nancy Wells (487-2415) to arrange for pickup. If legal action is required, the WBC Council will begin soliciting financial donations. This will be discussed as agenda item at the August 6th regularly scheduled meeting. All residents are invited to attend. 7:00 pm at the fire hall. WBCC Womens Bay Community Council CIO P 0 Box 1814 Kodiak, AK 99615 July 26, 2002 Borough Clerks Office Kodiak Island Borough 710 Mill Bay Road Kodiak, AK 99615 We are requesting copies of the following items: LKODIAK ISLAND BOROUGH. 01-1-TiE OF THE BOROUGH CLERK RECZWED 0,004*, 1) The original Lease Agreement between Brechan Enterprises and the KIB for the Brechan gravel pit in the Womens Bay Area. V) 2) The renewal agreement on the above lease. 3) The original Lease Agreement between AK Materials and the K113 for the AK gravel pit in the Womens Bay Area. 2) The renewal agreement on the above lease. We would like these copies to be the entirety of each document. We would appreciate these documents being made available today. A council member will pick up the copies this afternoon after 4:00 pm. Respectfully, The Womens Bay Community Council Gary Carver, Acting Chair 487-4551 Ben Millstein 487-4523 Jim Cobis, Acting Secretary 487-4479 Sheila Roberts 487-1956 Casey Janz, 487-4055 Nancy Wells 487-2415 Laurie Madsen 487-2412 cc: Members of the Kodiak Island Borough Assembly KODIAK ISLAND BOROUGH OFFICE': OF THE BOROUGH CLERK COPIED TO: A.. " 7 MAYOR. . iAANAGER ORIGINALS TO: CLERK— FILE Women's Bay Volunteer Fire Department 538 Sargent Creek Road Kodiak, Alaska 99615 15 July 2002 Pat Carlson Kodiak Island Borough Manager 710 Upper Mill Bay Road Kodiak, Alaska 99615 RECEIVED JUL 2 5 2002 K!B MANAGER Subject: Fire Fighting Plans for the Proposed Soil Remediation Plant in Women's Bay Fire District. Dear Mr. Carlson: The possibility of a boiling liquid expanding vapor explosion ( BLEVE) of the butane tank if exposed to a fire combined with the lack of a readily available water supply is above the level that WBVFD is equipped and trained to safely extinguish in the event of fire. Therefore, I feel this is not a wise location for this type of operation. It is my recommendation that SPI be required to provide a water supply and pumps for a cooling/monitoring system to protect the butane tanks from heat in the event of a fire on any site they on which they locate. An additional concern is the fact that all access to the entire Bells Flats side of the area is via roads directly adjacent to the proposed site. Should a fire occur, our fire - fighting plan will be to let it burn itself out or BLEVE which ever comes first. We will evacuate residents toward the mountains since no exit is available. They would have to be sheltered in vehicles or any homes that might be opened to them. Once the fire at the site is out, if we still had a firehouse and any equipment left, we could then extinguish exposure fires on adjacent properties. Our community and department have worked very hard to improve our fire . fighting capabilities and to achieve a fire rating that allows residents to purchase reasonable fire insurance. We ask the borough to consider the impact on the residents of our community, and the risk and liability you would be incurring should you approve the location of such an operation near any residential neighborhood. Sincerely, d /,. ale . ` ce Chief Women's Bay Volunteer Fire Department Cc: Women's Bay Service District Women's Bay Community Council Kodiak Borough Assembly. 1 late 10 a.- OvPfe S +0: Aua,..,_ 0130i-a1C C0 D 3+iln CASSrettj , E(F Womens Bay Community Council CIO P 0 Box 1814 Kodiak, AK 99615 July 24, 2002 Borough Clerks Office Duane Dvorak, Planning & Zoning Department Kodiak Island Borough 710 Mill Bay Road Kodiak, AK 99615 Dear Mr. Dvorak, We are requesting copies of the following items: JUL 2 4 2002 KODIAK ISLAND BOROUGH OFFICE OF THE BOROUGH CLERK COPIED TO: ASSEMBLY. 7 MAYO MANAGER ORIGINALS TO: CLERK_ FILE —Z -600 1) Minutes of the Kodiak Assembly Members June 13, 2002 work session. 2) A legible copy of the KIB Zoning Compliance Permit (Bz02-061) issued to Brechan Enterprises on July 23, 2002, for a soil remediation facility. 3) A copy of the procedure plan dealing with the transfer of propane at the above site, referenced in the July 22, 2002 letter from the Fire Marshall. 4) A copy of the letter to Brechan Enterprises which Pat Carlson, Borough Manager, said was being sent regarding the operation of the gravel pit outside of permitted hours. We would appreciate these documents being made available today. A council member will pick up the copies this afternoon. In addition, we would also like the following information provided prior to our August 6, 2002 meeting. 1) The number of residences and businesses in the Women's Bay Area currently paying for garbage services. 2) The amount of monthly receipts received by KIB from Womens Bay Community residents and businesses. 3) A copy of the contract with Waste Management detailing those services provided in the Women's Bay Community. Respectfully, The Womens Bay Community Council Gary Carver, Acting Chair 487-4551 Jim Cobis, Acting Secretary 487-4479 Casey Janz, 487-4055 Laurie Madsen 487-2412 • Ben Millstein Sheila Roberts Nancy Wells cc: Members of the Kodiak Island Borough Assembly , 487-4523 487-1956 487-2415 Duane Dvorak From: gary carver [wooak@ptialaska.net] Sent: Wednesday, July 24, 2002 8:03 AM To: Womens Bay Community Members Subject: Meeting announcement Legal Action Meeting - Sunday, July 28, 10:00 am - Fire Hall Soil Remediati'on Permits Issued On Friday afternoon, July 19, 2002, ADEC issued SPI a permit to operate at the Brechan Asphalt Site. A copy was faxed to the council that afternoon. Yesterday, Tuesday, July 23, 2002, Kodiak Island Borough Planning & Zoning fad a copy of the approved KODIAK BOROUGH Permit to the council. Planning & Zoning issued it on Monday, July 22, 2002. The Womens Bay Community Council has set up a meeting with an attorney for this Sunday morning at 10:00 am at the Fire Hall. This is a public meeting. All interested community members are encouraged to attend. Women's Bay Volunteer Fire Department 538 Sargent Creek Road Kodiak, Alaska 99615 20 July 2002 Pat Carlson Kodiak Island Borough Manager 710 Upper Mill Bay Road Kodiak, Alaska 99615 Page 1 of 2 Subject: Fire Fighting Plans for the Proposed Soil Remediation Plant in Women's Bay Fire District. Dear Mr. Carlson: The possibility of a boiling liquid expanding vapor explosion (BLEVE) of the butane tank if exposed to a fire combined with the lack of a readily available water supply is above the level that WBVFD is equipped and trained to safely extinguish in the event of fire. Therefore, I feel this is not a wise location for this type of operation. It is my recommendation that SPI be required to provide a water supply and pumps for a cooling/monitoring system to protect the butane tanks from heat in the event of a fire on any site they on which they locate. An additional concern is the fact that all access to the entire Bells Flats side of the area is via roads directly adjacent to the proposed site. Should a fire occur, our fire-fighting plan will be to let it burn itself out or BLEVE which ever comes first. We will evacuate residents toward the mountains since no exit is available. They would have to be sheltered in vehicles or any homes that might be opened to them. Once the fire at the site is out, if we still had a firehouse and any equipment left, we could then extinguish exposure fires on adjacent properties. Our community and department have worked very hard to improve our fire fighting capabilities and to achieve a fire rating that allows residents to purchase reasonable fire insurance. We ask the borough to consider the impact on the residents of our community, and the risk and liability you would file://C:\Documents%20and%20Settings\anault.CITY_OF KODIAKEocal%20Settings\Te... 7/26/2002 (0' - Page 2 of 2 be incurring should you approve the location of such an operation near any residential neighborhood. Sincerely, Dale L. Rice Chief Women's Bay Volunteer Fire Department Cc: Women's Bay Service District Women's Bay Community Council Kodiak Borough Assembly file://C:\Documents%20and%20Settings\anault.CITY_OF KODIAKTocal%20Settingffe... 7/26/2002 Womens Bay Community Council CIO P 0 Box 1814 Kodiak, AK 99615 July 18, 2002 Duane Dvorak, Planning & Zoning Department Kodiak Island Borough 710 Mill Bay Road Kodiak, AK 99615 Dear Mr. Dvorak, We are-informed that your office-is-currently working on two re-zoning actions. Both-actions involve the re-zoning of two business sections/parcels in this area. We understand that one of these actions, the change from business to residential on properties in the Russian Creek area, was initiated by your office. We are extremely concerned that Planning and Zoning is actively pursuing changes while we are trying to review and up date the Womens Bay Comprehensive Plan. As you are aware, the KM Assembly members voted at their June 13,2002 work session to place review and revision of our community plan at the top of the borough's planning list for this fiscal year. The Council has also established the review and updating of the Womens Bay Community Plan as our number one priority. Please contact us as soon as your office sets this on the calendar. Please also advise us of the Planning and Zoning hearing dates for the two proposed actions mentioned above so that we can inform the community and ensure affected residents have an opportunity to voice their concerns or support. Respectfully, The Womens Bay Community Council Gary Carver, Acting Chair 487-4551 Ben Millstein 487-4523 Jim Cobis, Acting Secretary 487-4479 Sheila Roberts 487-1956 Casey Jon; 487-4055 Nancy Wells 487-2415 Laurie Madsen 487-2412 cc: Members of the Kodiak Island Borough Assembly Duane Dvorak From: gary carver [wooak@ptialaska.net] Sent: Sunday, July 07, 2002 6:28 PM To: Womens Bay Community Members Subject: Special Meeting WB community council Women Bay Residents The Womens Bay Community Council will hold a special meeting to consider the option of retaining legal council regarding the soil remeriation issue. The meeting will be at 7:00 PM on Monday, July 8, at the Womens Bay Fire Hall. All meetings of the council are open to the public. Gary Carver Acting Chair Womens Bay Community Council Duane Dvorak From: gary carver [wooak @ptialaska.net] Sent: Friday, July 05, 2002 1:25 PM To: WB Community Council; Womens Bay Community Members Subject: FW: SPI application at Womens Bay, Kodiak From: "Horwath, Paul" <Paul Horwath @envircon.state.ak.us> Date: Fri, 5 Jul 2002 12:19:40 -0800 To: "'gary carver'" <wooak @ptialaska.net> Cc: "'George Cline (SPI)'" <SPIALASKA @aol.com >, "Bainbridge, Steve "< Steve_ Bainbridge @envircon.state.ak.us> Subject: RE: SPI application at Womens Bay, Kodiak Mr. Carver: We will provide the council with a copy of SPI's final Operations Plan. I cannot commit that we can continue the public comment period in a manner that prevents ADEC from issuing a determination at this time. That will depend in part, on the nature of any changes to the Operations Plan, or the nature of any additional information that is presented by SPI. Sincerely, Paul Horwath Original Message From: gary carver [mailto:wooak @ptialaska.net] Sent: Thursday, July 04, 2002 10.:17 AM To: Horwath, Paul_ Subject: Re: SPI application at Womens Bay, Kodiak Paul, The community of Womens Bay has re- established its community council. The council respectfully requests a copy of the SPI reply to your request for "additional and more detailed information" outlined in your 6/27/02 email to me and also requests the opportunity to provide comment on the new and additional information before ADEC takes action on the SPI application. Thank You, Gary Carver Womens Bay Community Council on 6/27/02 10:53 AM, Horwath, Paul at Paul _Horwath @envircon.state.ak.us wrote: > Hi Gary: > The information in your first paragraph looks about right. SPI was > uncertain if they had secured enough work to justify the costs of > constructing the facility. It now appears they believe there is enough work > to merit construction costs. > As of yesterday, we requested that SPI provide additional or more detailed > information regarding the following items: 1 > 1) A diagram showing distances to public and private buildings, water > wells, and surface waters. ADEC regulations require that these features be > identified within 500 feet of the facility boundary. The regulations do not > automatically prohibit the existence of these features within 500 feet of > the soil treatment facility boundary. > 2) The potential for impacting local water supplies as a result of pumping > 7000-10000 gallons of water per day (this is a quantity versus quality > issue). We have asked SPI to provide us with information on Brechan's > historical use of their industrial water supply well. ADEC's authority on > this matter is unclear to me. ADNR is the State department that deals with > water rights. The Borough Community and Regional Planning Department may > or may not have authority. ADEC is asking for the additional information > to attempt to learn if SPI's proposed water use would impact adjacent > groundwater users. > 3) Safety issues associated with storage of butane fuel or propane fuel. > We can provide you with a copy of this additional information, and any > modifications that SPI may make to their Operations Plan. I expect to > receive this additional information over the next several work days. > ADEC will also review the public comments that have been received since the > May 31st meeting and consider any additional issues that have been raised. > FYI: SPI tells me that they have looked at other locations, and that they > find no other location that suits their needs as well as the Brechan site. > Some of their primary concerns and considerations included the length of > time required to gain approval of another location, the distance from their > facility to where the contaminated soils are currently located (haul > distances), and the ease and costs of constructing their soil containment > structures and facility. > Go ahead and e-mail or call me if I've missed something that you have asked > for. > Paul Horwath, ADEC > 962-5210 x 250 Original Message ----- > From: gary carver [mailto:wooak@ptialaska.net] > Sent: Thursday, June 27, 2002 8:32 AM > To: Paul_Horwath@envircon.state.ak.us > Subject: SPI application at Womens Bay, Kodiak > Paul > Thank you for replying to my phone message requesting an update on the > status of application regarding the proposed soil remediation facility on > Kodiak Island. Unfortunately the message you left on my answering machine > was a bit garbled (not your fault, my machine was not working properly). I > would like to clarify a couple things. I understand that yesterday (6/26/02) > SPI requested ADEC to proceed with their consideration of the SPI > application to operate their remediation equipment on the Brechan site at > Womens Bay. I also understand that since the Kodiak Island Borough public > meeting several weeks ago ADEC has not been actively working on the 2 > application, apparently ause SPI was unsure they wan pursue it. Is > this correct? > If so, could you please briefly outline the process that ADEC will follow > and provide an estimate of the time line for this process. > Also, could you provide me a copy of the updated development plan that will > be used for your evaluation of application. At the community meeting several > aspects of the plan were alleged to be incorrect and the ADEC representative. > at the meeting indicated a revised plan would be needed to proceed with the > application process. > Thank you, > Gary Carver Duane Dvorak From: gary carver [wooak @ptialaska.net] Sent: Tuesday, July 02, 2002 3:35 PM To: Duane Dvorak Subject: Thanks Duane thanks for the info re: community Council and the candid discussion this morning. I have added your name to the Womens Bay email list. gc Jim and Nancy Wells P.O. Box 1814 Kodiak, AK 99615 fl Kodiak Island Borough Community Development Department 710 Mill Bay Road Kodiak, Alaska 99615 Phone (907) 486 -9363 Fax (907) 486 -9396 www.kib.co.kodiak.ak.us June 17, 2002 Re:. Appeal of a similar use determination, pursuant to KIBC 17.03.090.A., as it pertains to the allowance of soil remediation use in the I- Industrial zoning district. Dear Mr. and Mrs. Wells: This letter is in response to your letter dated June 3, 2002, in which you requested an appeal of the department's explanation of the above referenced process. In answer to this formal request to appeal the department's May 24, 2002 response letter, there is no appeal to the Planning and Zoning Commission for a similar use determination. KIBC 17.90.010 establishes who can appeal to the Planning and Zoning Commission as follows: 17.90.010 Persons who may appeal. Applicants subject to the following written decision of the community development department director may appeal the decision to the commission: A. The denial of zoning compliance; and B. The issuance of an order or administrative decision under subsection 17.75.010(A) of this title. A similar use determination is an administrative decision made under KIBC 17.03.090, and therefore cannot be appealed to the Planning and Zoning Commission as you, requested. Alaska Statute Title 29 provides for appeals of administrative decisions in AS 29.40.050 as follows: Sec. 29.40.050. Appeals from administrative decisions. (a) By ordinance the assembly shall provide for an appeal from an administrative decision of a municipal employee, board, or commission made in the enforcement, administration, or application of a land use regulation adopted under this chapter. The assembly may provide for an appeal to a court, hearing officer, board of adjustment, or other body. The assembly shall provide for an appeal from a decision on a request for a variance from the terms of a land use regulation when literal enforcement would deprive a property owner of rights commonly enjoyed by other properties in the district. (Emphasis added) (b)... Jim & Nancy Wells = Page2of4 The Kodiak Island Borough Assembly in KIBC 17.75.030.B has substantially provided for this form of appeal, below: 17.75.030 Penalties and remedies. B. Notwithstanding the availability of any other remedy, the borough or any aggrieved person may bring a civil action to enjoin any violation of this title, any order issued under subsection 17.75.010(A) of this chapter, or any term or condition of a conditional use, variance or other entitlement issued under this chapter; or to obtain damages for any injury the plaintiff suffered as a result of a violation. An action for injunction under this section may be brought notwithstanding the availability of any other remedy. Upon application for injunctive relief and the finding of an existing or threatened violation, the superior court shall enjoin the violation. C. KIBC 17.75.030.B complies with the standard required under AS 29.40.050, as shown above. Should you wish to pursue the appeal as indicated in your June 3, 2002 letter, you are advised to seek the advice of legal counsel in terms of the filing procedures applicable to the State of Alaska Court System. Staff has continued to research department records for a written reference to the anecdotal similar use determination to allow soil remediation activities in the I- Industrial zone. To date, staff has not found such a document, although a number of correspondences relating to contaminated soil remediation have come to light dated January through August 1997. Perhaps additional information is contained in the project files that were related to these correspondences. The environmental engineer who was employed in the Borough Engineering and Facilities Department during that time frame authored most of these letters. These project files have been relocated to long -term storage in the Borough record archives. Staff will pull these records and review them as soon as possible. As this research is likely to take time, it seems more appropriate to get this letter out now dealing with the appeal request so that you may make a timely decision on whether to take this issue to the next level of review. Once the record review is completed, the results of this research will be made available. With regard to the issue of a similar use determination, as referenced in the May 24, 2002 letter, it was staff's intent to explain the process and the justification in code for such a determination. It was not staffs intent to substitute its judgment on this matter for what is interpreted to be an existing similar use determination dating back to at least 1997. If a written determination cannot be found, and if it were subsequently determined by the Borough that similar use determinations must be reduced to writing, staff would not hesitate to draft a formal written similar use determination in lieu of our current anecdotal interpretation. With regard to the June 3, 2002 letter, staff is confused by the phrase quoted in line seven (7) where it alleges staff's overly broad interpretation of "similar use and impact ". The quoted language does not come from KIBC 17.03.090 or from the May 24, 2002 letter sent by this depattment. The standard by which similar use determinations are made is set forth in KIBC 17.03.090.A which is cited below for clarification. 17.03.090 Similar uses may be permitted. A. Land uses other than those specifically permitted in a district may be allowed if they are similar to those listed and are found by the community development department to be similar in character and impact. Jimj& Nancy Wells Page 3 of 4 It is further asserted, beginning on line 7, that none of the uses listed in KIBC 17.24.010 (Permitted uses) or 17.24.020 (Conditional Uses) allows the transportation, management or disposal of toxic waste. While this statement appears to be true, it is somewhat misleading in that contaminated soil proposed for remediation in the I-Industrial zoning district is classified by Alaska Statute to be a hazardous substance, not a toxic waste. AS46.03.826.5 defines a hazardous substance as follows: AS 46.03.822 Definitions for AS 46.03.822 - 46.03.828. In AS 46.03.822 - 46.03.828 ...(5) "hazardous substance" means (A) an element or compound which, when it enters into the atmosphere or in or upon the water or surface or subsurface land of the state, presents an imminent and substantial danger to the public health or welfare, including but not limited to fish, animals, vegetation, or any part of the natural habitat in which they are found; (B) oil; or (C) a substance defmed as a hazardous substance under 42 U.S.C. 9601(14);... This definition is also carried forward in the Alaska Administrative Code, at 18 AAC 75,990(48): (48) "hazardous substance" has the meaning given in AS 46.03.826 To summarize, the management or disposal of toxic waste in an I-Industrial zone would be a violation of the zoning. Our understanding from ADEC personnel is that contaminated soil is tested and classified as a hazardous substance prior to transport if it does not contain substances that cannot be safely decontaminated through a thermal desorption process. If the soil is determined to be contaminated by a toxic waste, a terrn that does not appear to be defined in either Alaska Statute or Alaska Administrative Code, staff is certain that there is no allowable site within the Kodiak Island Borough where the "management or disposal of toxic waste" would be a permitted or conditional use. It was not staff's intent to persuade anyone regarding the similar use determination relating to this issue. The May 24, 2002 letter was termed an explanation of the similar use determination process, particularly as it regards the soil remediation use, upon which staff has relied. It is the department position that we have verbally published this determination over time, in response to general inquiries by potential soil remediation operators. These references are hard to document because they have not been specific to a particular piece of property. The staff and former department director that were interviewed for the May 24, 2002 letter reside in this •community and could be located to testify should this issue be appealed to the courts. For current staff to say that we have made this similar use determination would be misleading. Nevertheless, if the courts did agree that the determination is "an overly broad interpretation" of KIBC 17.03.090, or that the determination should be produced in writing, staff would not hesitate to re-evaluate the standing similar use determination. Staff is sensitive to the fact that the Bells Flats Alaska Subdivision is a predominantly residential area. The depattinent is considering the health and safety of the area to the greatest extent allowable under the Borough code. This does not change the fact that Tract A, Block 3, Bells Flats Alaska Subdivision is zoned Industrial and, as such, has certain inherent rights under the zoning code. As a matter of law, the Borough must administer the zoning code in accordance with this intent until such time as the codes or zoning applicable to this area are changed or modified. From the description and intent of the I-Industrial zone and Jim°& Nancy Wells Page 4 of 4 definition of Industry in the Borough code (see below), it is clear that these uses are not intended to be compatible with residential use and developments. 17.24.005 Description and intent. The I- Industrial Zoning District is established as a district in which the principal use of the land is for business, manufacturing, processing, fabricating, repair, assembly, storage, wholesaling, and distributing operations, which may create some nuisance, but which are not properly associated nor compatible with residential land uses. For the industrial zone, in promoting the general purpose of this title, the specific intentions of this chapter are: A. To encourage the construction of and the continued use of the land for business and industrial purposes; B. To prohibit all residential uses of the land not associated with industries and any other land use which would substantially interfere with the development, continuation or expansion of industry in the zone; C. To concentrate the industrial and business uses within designated areas to protect residential districts from noxious or noisy operations; and D. To encourage the discontinuance of existing uses that would not be permitted as new uses under the provisions of this chapter. 17.06.335 Industry. "Industry" means the manufacture, storage, extraction, fabrication, processing, reduction, destruction, conversion, or wholesaling of any article, substance, or commodity, or any treatment which changes the form, character, or appearance of a resource material or previously manufactured item. Staff has not issued a zoning compliance permit for the proposed soil remediation use in Bells Flats at the present time. The department has indicated, in accordance with the anecdotal similar use determination, that we will not issue zoning compliance for this use until ADEC has approved an operation plan for the site showing that it can meet the applicable State of Alaska statutes and regulations for this use. In addition, the installation is also subject to a Fire Marshal plan review of the equipment and fuel sources to be used by the soil processor regarding the relative fire and life safety aspects of the proposed soil remediation facility. If you would like to review the information reviewed by staff as part of our research into these issues, please contact the Community Development Department staff in room 205 of the Borough building. Respe; y, Duane Dvorak, Director Community Development Department CC: Patrick S. Carlson, Borough Manager KIB Assembly and Mayor KIB Planning & Zoning Commission Paul Horwath, ADEC Brechan Enterprises, Inc. Soil Processing Incorporated File - Tract A, Block 3, Bells Flats Alaska Subdivision KODIAK FIRE DEPARTMENT MEMORANDUM Date: 6 -14 -02 To: Duane Dvorak Re: Allowable Quantities of Propane Fire Marshal Andy Nault and I have discussed the fire code and its provisions for propane storage. The code restricts the maximum capacity of propane storage to 2000 gallons in heavily populated or congested areas. An exception to this limit (higher or lower) may be set by the code official after consideration of various factors that include "degree of fire protection provided, and capabilities of the local department." We feel that quantities of propane storage should balance the population and congestion factors with the exceptions. In the case of Bells Flats, the area is not considered heavily populated or congested, but the degree of fire protection and capabilities of the local department are limited in ability to handle propane emergencies. We consider that the greatest hazard from propane at a soil burning operation would be present during transport of the tanks and during switching of empty tanks for full tanks. If a restriction in quantity meant that transport and changes of tanks would occur relatively frequently (e.g., every day), it might be considered safer to allow the use of multiple or larger tanks. Before rendering a final opinion, we would like to have information on the quantities of propane that are expected to be used. We would then be better able to weigh the hazards against the mitigating factors. Thank you for giving us an opportunity to comment on this issue. TECEEIVE--11 JUN 1 4 2002 2) COMMUNIN DEVELOPMENT DEPARTMENT KODIAK ISLAND BOROUGH Regular Assembly-Meeting June 4, 2002 A regular meeting of the Kodiak Island Borough Assembly was held June 4, 2002 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 Dave Davis of the Salvation Army, followed by the Pledge of Allegiance. There were present: Mayor: Gabrielle LeDoux Assembly members: Tom Abell Greg Razo Tuck Bonney Wayne Stevens Pat Branson Darlene Turner Robin Heinrichs, Deputy Mayor comprising a quorum of the Assembly; and Pat Carlson, Manager Judi Nielsen, Borough Clerk Laura Casey, •Assistant Clerk APPROVAL OF AGENDA TURNER, Seconded by RAZO BONNEY, seconded by HEINRICHS VOTE ON MOTION TO AMEND Ayes: Noes: MOTION CARRIED moved to approve the agenda. moved to amend the agenda by moving item 13.B.1 Resolution, No. 2002-20 to Public Hearing as item 9.B. Abell, Bonney, Branson, Heinrichs, Razo, Stevens, Turner None Unanimous VOTE ON MOTION TO APPROVE AS AMENDED Ayes: Noes: MOTION CARRIED APPROVAL OF MINUTES 1. Bonney, Branson, Heinrichs, Razo, Stevens, Turner, Abell None Unanimous Kodiak Island Borough Assembly Regular Meetings of April 18 and May 2, 2002. Regular Assembly Meeting June 4, 2002 REGULAR MEETING ROLL CALL APPROVAL OF AGENDA APPROVAL OF MINUTES Volume XXVII Page 1 • Th Jim & Nancy Wells P 0 itox 1814 Kodiak, AK 99615 (907) 407-2415 Email: jwellsntialaska.net June 3, 2002 Duane Dvorak, Director Community Development Department Kodiak Island Borough 710 Mill Bay Road Kodiak, AK 99615 Dear Mr. Dvorak, We have received your response, dated May 24, 2002, to our May 20, 2002 letterrequestiog an explanation of how the proposed SPI incinerator project was deemed an activity consistent with the zoning at the site. Your response is far less than satisfactory. We find the determination that a soil remediation incinerator is, quoting from your response, "similar, in terms of the character and impact of the use to the uses permitted by KIBC 17.24.010.0 (Permitted uses), which allows asphalt batch and mixing plants, manufacturing or refining uses," an overly broad interpretation of "similar use and impact." None of the uses listed in section 17.24.010 (Permitted uses) or section 17.24.020 (Conditional uses) deals with the transportation, management or disposal of toxic waste. Additionally, the operation of the soil remediation facility described in the applicants operation plan will result in "impacts" distinctly different from those of the asphalt batch plant and other uses permitted by the KIB code. Your explanation that this decision was made "more than six years ago" and has been in effect without any "formal written determination regarding this use" but, simply based on "staff recollection and the recollection of the former department director" is frankly unbelievable. As the determination of "similar use" by the Community Development Department appears to violate the KIB municipal code and because the 'procedure used to reach the "similar use" determination is ambiguous, undocumented, and based solely on hearsay, we are formally requesting an appeal of this determination to the planning and zoning commission. Respectfully, —3 \ 1/14 Jim and Nancy cc: Members of the Kodiak Island Borough Assembly Pat Carlson, KIB Manager KIB Planning and Zoning Commission 1 Kodiak Island Borough Community Development Department 710 Mill Bay Road Kodiak, Alaska 99615 Phone (907) 486-9363 Fax (907) 486-9396 www.kib.co.kodiak.ak.us May 24, 2002 Jim and Nancy Wells P.O. Box 1814 Kodiak, AK 99615 Re: Explanation of similar use determinations pursuant to KIBC 17.03.090.A. Dear Mr. and Mrs. Wells: This letter is in response to your letter dated May 20, 2002, which was forwarded to this office for reply from the Borough Manager's office. In the letter, you requested an explanation of the basis in which the department has determined that soil remediation incinerators are deemed an activity consistent with the I- Industrial zoning district as set forth in KIBC 17.24. In addition to the more specific question, staff will preface this response with some general information about the Kodiak Island Borough zoning code. The determination that soil remediation activity is permitted in the I-Industrial zone was made prior to the recent project in Bell's Flats. Borough zoning in general, and the I-Industrial zone specifically, are intended to segregate and restrict land uses in a systematic fashion. In addition to allowing all uses permitted in the B-Business zone (except residential uses), the I-Industrial zone permits 31 other industrial uses and six conditional industrial uses. Taken alone, KIBC 17.03.080 (Uses prohibited unless authorized) would appear to strictly limit the uses permitted in the I-Industrial zone to the 31 enumerated uses set forth in KIBC 17.24.010, unless a new use is added to the list by ordinance. This strict approach to listing permitted uses in zoning districts could lead to problems if the list is too short, yet, the other extreme is equally problematic if the community tries to anticipate too many potential uses. For this reason, the code allows the department to make "similar use determinations" as set forth in KIBC 17.03.090.A (Similar uses may be permitted). As indicated previously, the department had already made a determination that soil remediation facilities are a permitted use in the I-Industrial zone before the Bell's Flats project was contemplated. In fact, staff has been advising those who inquire about soil remediation use that the I-Industrial zone is the only zone in which soil remediation activities are a permitted use, although there are two other zones where soil remediation may be permitted subject to review as a conditional use. Jim & Nancy Wells Page 2 of 2 Staff has not been able to locate a formal written determination regarding this use, however, staff recollection and the recollection of the former department director, indicate that this has been an operating assumption of the department for more than six years. This determination is based on a finding by the department that soil remediation activities are similar, in terms of the character and impact of the use, to the use permitted by KIBC 17.24.010.0 (Permitted uses), which allows asphalt batch and mixing plants, manufacturing or refining uses. Staff recognizes that the context of the Bells Flats Alaska Subdivision is perceived to be somewhat unique in that industrial uses and residential uses co-exist within the same general area. While this is not unprecedented in the Kodiak Island Borough, this situation does not modify the zoning so that the department can treat the industrial areas in Bells Flats differently from the industrial zones within the City of Kodiak, for example. Nevertheless, the department is sensitive to the fact that the proposed operation of a soil remediation plant is a safety and health concern to the public. For that reason the department will not issue zoning compliance for the proposed soil remediation use until, and unless, approval is first granted by the Alaska Department of Environmental Conservation (ADEC). The proposed soil remediation use is subject to ADEC review and approval regarding air quality and related environmental concerns. It is our understanding that the time frame for ADEC review is being extended to allow the interested public additional time to comment. This additional time will allow a thorough investigation and discussion of the proposed soil remediation technology and equipment. In order to help facilitate this review, the department has furnished ADEC with a vicinity map of the surrounding area in Bells Flats and a copy of the I-Industrial zoning district. Copies of the codes sections relied upon in this letter will also be attached for your review. Please feel free to contact me at 486-9360 should you have questions or require additional information. Sincerely, Duane Dvorak, Director Community Development Department CC: Patrick S. Carlson, Borough Manager KIB Assembly and Mayor KIB Planning & Zoning Commission Paul Horwath, ADEC Brechan Enterprises, Inc. File Tract A, Black 3, Bells Flats Alaska Subdivision Attachment: KIBC 1.04.010; KIBC 17.03.010; KIBC 17.03.080; KIBC 17.03.090; KIBC 17.06.335; KIBC 17.09.010; KIBC 17.24 Attachment to Letter Dated May 24, 2002 Note: The following Kodiak Island Borough Code sections were consulted inresponse to the letter from Jim and Nancy Wells, dated May 20, 2002. Other code language was reviewed by staff in addition to the following, however, these sections contain the most relevant passages in the opinion of staff. * * * ** * * * ** 1.04.010 Grammatical interpretation. Words and phrases shall be construed according to the rules of grammar and according to the common and approved usage. Technical words and phrases, and those which have acquired a peculiar and appropriate meaning whether by legislative definition or otherwise, shall be construed according to the peculiar and appropriate meaning. (Prior code Ch. 1 §7). * * * ** * * * ** 17.03.010 Application of provisions. The provisions established by this title for each district are minimum regulations and apply uniformly to each class or kind of structure or land. (Ord. 81 -54 -0 1(part), 1981; prior code Ch. 5 subch. 2 1(part)). * * * ** * * * ** 17.03.080 Uses prohibited unless authorized. Land uses not listed as a permitted use in a district are prohibited. (Ord. 81- 54- 01(part), 1981). * * * ** * * * ** 17.03.090 Similar uses may be permitted. A. Land uses other than those specifically permitted in a district may be allowed if they are similar to those listed and are found by the community development department to be similar in character and impact. B. Land uses other than those conditionally permitted in a district may be allowed if they are similar to those listed and are found by the commission, after a public hearing, to be similar in character and impact. C. In all cases, the outdoor storage of materials and equipment is prohibited unless it is listed as a permitted or conditional use in a district. (Ord. 92 -13, 2, 1992; Ord. 81 -54 -0 1(part), 1981). * * * ** * * * ** 17.06.335 Industry. "Industry" means the manufacture, storage, extraction, fabrication, processing, reduction, destruction, conversion, or wholesaling of any article, substance, or commodity, or any treatment which changes the form, character, or appearance of a resource material or previously manufactured item. (Ord. 81-40-0. 1(part), 1981). * * * ** * * * ** 17.09.010 Districts established. The borough is divided into the following land use districts: A. W- Watershed District; B. WH- Wildlife Habitat District; Page 1 of 5 1 C. NU-Natural Use District; D. C-Conservation District; E. LI-Light Industrial District; F. RB-Retail Business District; G. RD-Rural Development District; RNC-Rural Neighborhood Commercial District; I. RR2-Rural Residential Two District; J. RR-Rural Residential District; K. RR1-Rural Residential One District; L. R1-Single-Family Residential District; M. R2-Two-Family Residential District; N. R3-Multiple Family Residential District; 0. B-Business District; P. I-Industrial District; Q. PL-Public Lands District; R. UNC-Urban Neighborhood Commercial District; and S. SRO-Single Resident Occupancy Standards. (Ord. 96-01.2, 1996; Ord. 94-04.2, 1994; Ord. 90-03. 2(part), 1990; Ord. 89-31. 2(part), 1989; Ord. 89-04. 2(part), 1989; Ord. 86-27. 2(part), 1989; Ord. 81-56. 2(part) 1981; Ord. 81-55-0. l(part), 1981; Ord. 81-43 2(part), 1981; Ord. 80-9-0. 2(a)(part), 1980; Ord. 77-10-0.2, 1977; prior code Ch. 5 subch. 2.2A). Sections: 17.24.005 17.24.010 17.24.020 17.24.030 17.24.040 17.24.050 17.24.060 ***** ***** Chapter 17.24 I-INDUSTRIAL DISTRICT Description and intent. Permitted uses. Conditional uses. Lot requirements. Yards. Building height limit. Performance standards. 17.24.005 Description and intent. The I-Industrial Zoning District is established as a district in which the principal use of the land is for business, manufacturing, processing, fabricating, repair, assembly, storage, wholesaling, and distributing operations, which may create some nuisance, but which are not properly associated nor compatible with residential land uses. For the industrial zone, in promoting the general purpose of this title, the specific intentions of this chapter are: A. To encourage the construction of and the continued use of the land for business and industrial purposes; Page 2 of 5 B. To prohibit all residential uses of the land not associated with industries and any other land use which would substantially interfere with the development, continuation or expansion of industry in the zone; C. To concentrate the industrial and business uses within designated areas to protect residential districts from noxious or noisy operations; and D. To encourage the discontinuance of existing uses that would not be permitted as new uses under the provisions of this chapter. (Ord. 81-40-0. 2(part), 1981). 17.24.010 Permitted uses. The following uses of the land are permitted in the industrial district: A. All uses permitted in B-Business District, except residential; B. Aircraft, automobile and truck assembly or remodeling; C. Asphalt batch and mixing plant, manufacturing or refining; D. Assembly of music and vending machines; E. Auction business; F. Beverage manufacturing; G. Boat building, repair and storage; H. Cabinet shops; I. Concrete mixing batch plants; J. Coal storage yards; K. Dwelling units for a watchman or caretaker on the premises; L. Dyeing plants; M. Gravel or sand extraction; N. Junkyards, wrecking, salvage or scrap metal operations; 0. Lumber mills and sawmills; P. Lumberyard, building material manufacture or sales; Q. Machine or blacksmith shops; R. Manufacturing, servicing or repair of light consumer goods, such as appliances, batteries, furniture, and garments; S. Metal working or welding shops; T. Motor freight terminals; U. Outdoor storage; V. Paint shops; W. Public uses; X. Rock crushers; Y. Seafood processing establishments and their doimitories; Z. Sewage treatment plants; AA. Slaughterhouses; BB. Steel fabrication shops or yards; CC. Vehicle impound lots; DD. Vocational or trade schools; EE. Utility installations; and FF. Warehousing within an enclosed structure. (Ord. 92-13.7, 1992; Ord. 81-40-0 .2(part), 1981). Page 3 of 5 17.24.020 Conditional uses. The following uses may be permitted by obtaining a conditional use permit in accordance with the provisions of chapter 17.67 of this title: A. Acetylene gas manufacture or storage; B. Ammonia, bleaching powder or chlorine manufacture; C. Cement, concrete, lime and plaster manufacture; D. Chemical bulk storage and sales; E. Garbage disposal sites, dumps and sanitary landfills; and F. Petroleum or flammable liquid production, refining or storage. (Ord. 81-40-0 2(part), 1981). 17.24.030 Lot requirements. A. Lot area. The minimum lot area required is twenty thousand (20,000) square feet. B. Lot width. The minimum lot width required is seventy-five (75) feet. (Ord. 81- 40-0, 2(part), 1981). 17.24.040 Yards. A. Front yards. 1. there shall be a front yard of not less than thirty (30) feet. 2. the front yard, when facing a state highway, shall be not less than fifty (50) feet. B. Side yards. 1. there shall be a side yard on each side of a principal building of not less than twenty (20) feet, except that approved fire wall installations between adjoining structures provides for construction on the lot line. C. Rear yards. 1. there shall be a rear yard of not less than twenty (20) feet, except that approved fire wall installations between adjoining structures provides for construction on the lot line. D. Exemptions. Waterfront industries are exempt from the requirements of this section. (Ord. 81-40-0, 2(p art), 1981). 17.24.050 Building height limit. The maximum height of a structure is unrestricted, except that no structure shall interfere with Federal Aviation Administration regulations on airport approach; and provided further, that within fifty (50) feet of any residential district boundary, no portion of any structure shall exceed the height limitations of the residential district. (Ord. 81-40-0, 2(p art), 1981). 17.24.060 Performance standards. All permitted and conditional uses shall comply with the performance standards listed, where applicable, in this section. A. Noise. The noise emanating from a premises used for industrial activities shall be muffled so as to not become objectionable due to intermittent beat, frequency, or shrill- ness; and where a use adjoins a residential district, the noise loudness measured at the boundary line shall not exceed ninety (90) decibels. B. Lighting. Any lighting shall not be used in a manner which produces glare on public highways and neighboring property. Arc welding, acetylene torch cutting and similar processes shall be performed so as not to be seen outside the property. Page 4 of 5 C. Fire and safety hazards. The storage and handling of inflammable liquids, liquefied petroleum, gases and explosives shall comply with the fire prevention code and all other applicable laws and regulations. Enameling and paint spraying operations shall be permitted when incidental to the principal use and when such operations are contained within a building of two-hour fire-resistive construction. Bulk storage of inflammable liquids below ground shall be permitted if the tank is located no closer to the property line than the greater dimension (diameter, length or height) of the tank. D. Odor. Uses causing the emission of obnoxious odors of any kind and the emission of any toxic or corrosive fumes or gases are prohibited. E. Dust and smoke. Dust and smoke created by industrial operations shall not be exhausted into the air in such a manner as to create a nuisance. F. Open storage. Any storage shall not be located closer than twenty-five (25) feet to any street right-of-way. Any storage shall be enclosed with a fence acceptable to the commission. Whenever lumber, coal or other combustible material is stored, a roadway shall be provided, graded and maintained from the street to the rear of the property to permit free access for fire trucks at any time. G. Screening. Where an industrial use is adjacent to and within one hundred (100) feet of a residential use or zone, that industry shall provide screening as approved by the commission. (Ord. 81-40-0. 2(p art), 1981). Page 5 of 5 0 Jim & Nancy Wells P 0 Box 1814 Kodiak, AK 99615 (907) 487-2415 Email: iwells(&,ptialaska.net May 20, 2002 Pat Carlson, Manager Kodiak Island Borough 710 Mill Bay Road Kodiak, AK 99615 Dear Mr. Carlson, It is our understanding that the application for the proposed soil remediation incinerator project in Bell's Flats (SPI at the Brechan Asphalt Plant) was deemed an activity consistent with the zoning at the site by the borough planning and zoning depaitment. Having reviewed the Industrial District Code, we are unable to find under which section of the code planning and zoning made this determination. In order to better understand this decision, we are requesting both an explanation of the basis on which this determination was made and the specific section(s) of the Borough Code deemed applicable and used in this decision. Your response can be mailed to us at our above address or sent to us at our email address. Thank you for your expeditious attention to this request. Respectfully, ;17 Jim and Nancy Wells emberohe.KodiasJjorough Assembly RFTFTFEn, MAY 2 1 2002 • • '11 CLERK AL' N