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BELLS FLATS TR A BK 3 ALL - Similar Use DeterminationSETTLEMENT AGREEMENT AND MUTUAL RELEASE This Settlement Agreement and Mutual Release ("Agreement") is made by and between plaintiff Women' s Bay Community Council, Inc. ("Women's Bay") and defendants - Kodiak Island Borough ("KIB"), Brechan Enterpris es, Inc. ("Brechan"), and Soil Processing, Inc. ("SPI"). WHEREAS, the undersigned p arties arc involved in litigation in the case ofY_Tornen' s Bay Comm Council. inc. Case No. 3K0-02-207 Civil ("Lawsuit"). The parties wish to settle the entire litigation and controversy among them surrounding this case, including all claims that have arisen or may arise under the Lawsuit. They include in this Agreement all the matters in dispute among them in the Lawsuit, including all claims set forth by the first amended complaint, and desire by this Agreement to effect as broad a relea.se as allowable by law, except to the extent explicitly limited by this Agreement; and WHEREAS, the undersigned parties have agreed to settle the case on the terms set forth below, NOW THEREFORE, in consideration of the fulfillment of the terms and conditions of this Agreement among the parties, it is agreed: 1. SPT wi 11 be allowed to continue operating its soil processing plant at the Brechan property ("Site") until September 15, 2003. SPI will cease operations at the Site no later than September 15, 2003, provided that SPI submits the necessary information for the permit review pursuant to paragraph 4 on or before April 1, 2003; and KIB completes its pemiit review and SPI receives the KIB compliance letter authorizing operation pursuant to that review no later than April 15, 2003. 2. SPI will comply with all Alaska Department of Environmental Conservation ("DEC") regulations, state and federal laws, and KIB ordinances so long as it continues to operate. If any issue arises regarding SPI's compliance with an applicable law, regulation, or ordinance, it will be raised with the appropriate administrative or enforcement agency. 3. SPI and Brechan waive all rights they may have under Zoning Compliance Permit I3Z-02-061 issued on or about July 23, 2002 by the Kodiak Island Borough ("Permit BZ-02-061") to continue soil processing on the Site after September 15, 2003. This waiver includes any claims SPI and/or Brechan may have to grandfather rights arising from PermitBZ-02-061 or operations conducted under Permit BZ-02-061. After SPI ceases operation, Permit B Z-02-061 will be null and void. Nothing herein shall be construed to effect Brechan's rights to conduct any operations on its property other than those rights expressly created in Permit BZ-02-061. Nothing herein shall be construed to preclude Brechan from applying for permits for future operations of any kind. 4. SPI will submit to a KIB permit review prior to beginning operations in the spring, in accordance with its November 14, 2002 letter agreement with KIB. The parties agree to use their best good faith efforts to expedite the KIB permit review process, 5. In the event of an unusual or sudden suspected emission or other event involving or thought to involve SPI' s operations, all parties will cooperate through counsel in attempting to determine the source and cause. This paragraph does not require the parties to work through counsel regarding regulation of anticipated emissions (whether or not such emissions are in compliance with laws or regulations). SETTLEMENT AGREEMENT AND MUTUAL RELEASE Page 2 [Between Women's Bay, KJB, Brechan, and SP13 6. SPI, within five (5) days of generation or receipt, will provide KIB with copies of all operational reports and correspondence with DEC and other agencies relating to those operations. SPI agrees that all reports which it files with DEC and KIB regarding emissions and soil test results will be public records. KIB will make these documents readily available for inspection and review by community members during normal business hours - - at the KIB offices, 7. SPI will continue to provide operational fire suppression equipment on site at all times of operation, including fire extinguishers and one and one -half inch fire hose hooked up to the available water source and any other requirements of the State Fire Marshal. 8. SPI will place a barricade along the side of the fuel tanks to prevent them from being accidentally struck by a vehicle. After SPI ceases operations, it will remove the LNG tanks from the Site within 15 days, 9. SPI agrees not to cause noise levels greater than 50 decibels measured at the nearest residentially -zoned property boundary, This restriction does not apply to noise generated by Brechan's operations, which will continue to comply with applicable Borough ordinances as they may exist at any time, 10, Except as explicitly provided in this Agreement, each of the parties to this Agreement unequivocally releases and forever discharges each ofthe other parties to this Agreement, and their respective officers, employees, agents, and members, from all claims and causes of action of any type or nature, whether arising in tort or in contract, or based upon Borough ordinance or state law, including, but not limited to, all claims and causes of action based upon, resulting from, or growing out of the events giving rise to the Lawsuit referenced above, whether or not such claim has been brought in this litigation, it being the SETTLEMENT AGREEMENT AND MUTUAL RELEASE Page 3 [Between Women's Bay, KIB, Brachial, and SPI] intention of the parties that this settlement is in full and final satisfaction of all claims between them and shall constitute a general release of all claims, known or unknown arising, or that could have arisen in the Lawsuit. This release shall apply to all claims or potential claims against individual members of the Women's Bay community arising from the controversy surrounding the soil processing plant; provided, however, that if any individual -- or group of individuals brings a new lawsuit arising from the same facts underlying this Lawsuit, or challenging SPI's continued operation as permitted by this Agreement, the defendants) in that lawsuit will be permitted to bring as counterclaims against the plaintiff(s) any claims arising from the plaintiff' s(s') activities in connection with SPI's operations at the Site. 11, If any member of the Women's Bay Community Council, Inc, takes any action that results in interfering, delaying, or shutting down SPI's operations prior to September 15, 2003, any party to this action may ask that any related court action be assigned to Judge Christen, and .ask the superior court in this action to extend the closure deadline beyond September 15, 2003. 12, Each party will be responsible for its own costs and attorney's fees. 13. Brechan will release SPI from its lease, effective on the date that SPI completes its demobilization. 14. Each of the parties to this Agreement covenants and agrees that it will not, either by itself or in concert with others, or by virtue of further judicial or administrative proceedings of any kind whatsoever, make or cause to be made, acquiesce in or assist in the bringing of any further claim for relief or action for damages or compensation of any kind, character or description, for damages accrued, accruing or hereafter to accrue, whether by SETTLEMENT AGREEMENT AND MUTUAL RELEASE Page 4 (Between Women's Bay, K1B, Brcchan, and SP11 /—\. , • assignment or otherwise, for because of, on account of, or in any manner connected with, arising from or growing out of any of-the claims in the Lawsuit. 15. It is understood by the parties that if the nature and/or extent of the injuries and damages claimed by any of the parties should be changed in any manner, or should be increased by any injuries or damages which may hereinafter be discovered, it is the - intent of the parties to unequivocally release and forever discharge each other from any and all claims, accrued or which may accrue in the future, as a result of, in connection with, or related to any change in the nature and/or extent of said injuries or damages or as a result of the discovery of new injuries or damages. In this connection, the undersigned enter this Agreement. with full knowledge and understanding of thc decision of the Alaska Supreme Court in Witt v. Watkins, 579 P.2d 1065 (Alaska 1978), with the full intent to release one another from any damages or losses arising out of the facts and circumstances giving rise to the lawsuits, which are known, or which may be subsequently discovered and which are not yet known to the parties at this time. 16. Nothing herein shall be deemed an admission of liability, negligence or responsibility of any nature whatsoever on the part of any of the parties, the same being expressly and unequivocally denied. 17. The parties acknowledge familiarity with the decision of the Alaska Supreme Court in Young v. State, 455 P.2d 889 (Alaska 1969), and the protcction of that holding is hereby expressly waived. All individuals, corporations, or other entities who are, could now, or at any past or future time could be possible defendants in this action arising out of the lawsuits, are also released as fully as. if they had been specifically named herein, except as explicitly provided otherwise in paragraph 10, SETTLEMENT AGREEMENT AND MUTUAL RELEASE Page 5 [Between Women's Bay, MB, Brechan, and SKI 18. The parties acknowledge that they have had the benefit of counsel of their choosing, that they have been fully advised by their lawyers as to the meaning and consequences of this Agreement, and that they are qualified and legally competent in all respects to make and execute this Agreement, 19. The parties agree and intend that this Agreement shall inure to the - benefit of and shall be binding on themselves, their shareholders, officers, directors, agents, employees, representatives, heirs, legatees, devises, their predecessors or successors in interest, together with their assigns, agents, employees, representatives, and attorneys. 20. This Agreement represents the entire agreement between Women's Bay, KIB, Brechan, and SPI, and supersedes all prior or contemporaneous agreements, promises, representations or statements between them regarding or related to the matters addressed in this Agreement. 21. This settlement will be filed with the Court in Women's Bay Community Council, Inc. v, Kodiak Island B9rough, et al., Case No. 3K0-02-207 Civil, and the parties will stipulate to final judgment reflecting the terms of this Agreetnent. The Court shall retain jurisdiction to enforce this settlement agreement. 22, This Agreement shall be construed in accordance with the laws of the State of Alaska. 23. Each party represents that it has all requisite authority to enter into this Agreement by all necessary corporate and municipal actions. 24. This Agreement may be executed in counterparts and shall be effective as if it were signed at the same time by all parties. SETTLEMENT AOREEMENT AND MUTUAL RELEASE ?ago 6 [Between Women's Bay, KID, Brechan, and SKI 25. The parties agree that any disputes concerning enforcement of this Agreement or violation of this Agreement by any party can be heard by the Superior Court on an expedited basis. DATED: DATED: DATED: • 1• DATED: WOMEN'S BAY COMMUNITY COUNCIL, INC, By: Its: Chair KODIAK ISLAND BOROUGH By: Its: BRECHAN ENTERPRISES, INC. By Its: President SOIL PROCESSING, INC. By: Its: President SETTLEMENT AGREEMENT AND MUTUAL, RELEASE Page 7 [Betvveco Women's Bay, K1B, Brechan, and SKI Untitled. .1: Corp Num 77133 Agent: NANCY J WELLS .. " Corp Name WOMEN'S BAY COMMUNITY COUNCIL, INC. Agent 538 SERGEANT CREEK RD Address: St of Domicile: ALASKA Agent O K DIAK AK 99615 City/State/Zip: Statute: 10.20 Status: A Date Status Date: 30-JUL-02 Qualified: Date Incorporated: 30-JUL-02 Last Report: 2002 SIC code: 8640 Other CARVER, GARY , Stock Owned % Other COBIS, JAMES Stock Owned % Other JANZ, CASEY Stock Owned % Other MADSEN, LAURENE Stock Owned % Other MILLSTEIN, BENJAMIN Stock Owned % Other ROBERTS, SHEILA Stock Owned % Other WELLS, NANCY Stook Owned % Page 1 of 1 http://www.dced.state.alc.us/bsc/CorpDetail.eftn?CorpNum=77133&CorpType=D 10/4/2002 Untitled Page 1 of 1 .`" Corp Num Corp Type Corp Name Address City State Zip 77133 D WOMEN'S BAY COMMUNITY COUNCIL, INC. 538 SERGEANT CREEK RD KODIAK AK 99615 http://www.dced.state.ak.us/bsc/CorpList.cfm 10/4/2002 IN THE DISTRICT/SUPERIOR COURT FOR THEE AT KODIAK WOMEN'S BAY COMMUNITY COUNCIL, INC., VS. KODIAK ISLAND BOROUGH, Plaintiff(s), Defendant(s). To Defendant: Kodiak Island Borough Clerk rarTE, SEP - 3 2002 KODIAK ISLAND BOROUGH CF,FJCE:01-17E'ZIQBOUGH CLERK PEIEWED CASE NO. 3K0702-. 2 0 7 SUMMONS SEP - 4 2002 n . 3 You are hereby summoned and required to file with the court an answer o the co.'itillili,10.- ffileifi_. - - LAND ..:::-.3ROU.,:ill - , --,-•,-- flE. -- - z'r-i-Jry, .,-...1 plc-pz . . accompanies this summons. Your answer must be filed with ' the ,,,coutto=fat "k"' "-'" ‘I'• 2O4 Mission Road, Room 10, Kodiak, Alask,?, 99615 within 20 (address) days* after the day you receive this summons. In addition, a copy of your answer must be sent to the plaintiff s attorney, Wiflfam S Curnincn ,whose address is: Ashburn Masor;, 1130 1,1!ef_:t Sixth Avont,e, Strfia 100, Anchoraoe, AK If you fail to file your answer within the required time, a default judgment may be entered against you for the relief demanded in the complaint. 1-1 This case has been assigned 1-1 This case has been assigned is a District Court case • ■ to Superior Court Judge 1)01G1D D 110.2W001.:, to District Court Judge KODIAK ISLAND and will be assigned to an 01-424 tomitix BOROUGH CLERK Date CC 7IF_D TO: CLERK OF COURT Deputy Clerk * The State or a state officer or agency named as a defendant has 40 days to file its answer. CIV-100 (3/87)(st.3) SUMMONS Civil Rules 4, 5, 12, 55 kSHBURN AND MASON LAWYERS %3ROFESSIONALCORPORATION SUITE 100 1130 WEST SIXTH AVENUE ANCHORAGE, ALASKA 99501-5914 (907) 275-4331 IN THE SUPERIOR COURT FOR THE STAFF OF ALASKA THIRD JUDICIAL DISTRICT AT KODIAK WOMEN'S BAY COMMUNITY COUNCIL, INC., Plaintiff, vs. KODIAK ISLAND BOROUGH, Defendant. ) ) ) ) ) ) ) ) ) ) ) FFP-EFFT, SEP 3 2002 L.... 17j AND 130ROU_Iii OF UROL cLE kK Case No. 3K0-02-aQS-\ Civil COMPLAINT Plaintiff Women's Bay Community Council, Inc., by and through its counsel Ashburn & Mason, P.C., states the following as its complaint against defendant Kodiak Island Borough. 1. Plaintiff Women's Bay Community Council, Inc. ("WBCC") is an Alaska nonprofit corporation. 2. Women's Bay is a community of approximately 750 residents located on Kodiak Island, in the Kodiak Island Borough. 3. The Women's Bay Community Council formed as an unincorporated association of residents and property owners in the Women's Bay community in the 1980s, in order to provide a means of community self-expression, assist in the orderly development and improvement of the community, provide for community representation, provide and maintain a community development plan to ensure proper development, and advocate for the proper enforcement of the ordinances and regulations that govern land use in Women's Bay. ASHBURNAND MASON LAWYERS A PROFESSIONAL CORPORATION SUITE 100 1130 WEST SIXTH AVENUE ANCHORAGE. ALASKA 99501 -5914 (907) 276 -4331 4. Women's Bay Community Council incorporated in 2002. 5. Kodiak Island Borough ( "KIB ") is a second class borough located on Kodiak Island, Alaska. 6. KIB is responsible for zoning and zoning enforcement within the borough territory, including Women's Bay. 7. Title 17 of the Kodiak Island Borough Code ( "KIBC ") sets forth the zoning ordinances applicable within the borough. 8. KIBC § 17.24.010 lists the permitted uses in the industrial district. Soil remediation is not listed as a permitted use. 9. KIBC § 17.24.020 lists the uses which may be permitted in the industrial district by first obtaining a conditional use permit. Soil remediation is not permitted as a conditional use. 10. KIBC § 17.03.080 provides that "land uses not listed as a permitted use in a district are prohibited." 11. Tract A, Block 3, Bells Flat Alaska Subdivision is located in the Women's Bay community. 12. Tract A, Block 3, Bells Flat Alaska Subdivision is zoned "industrial." 13. For purposes of Title 17 of the KIBC, the KIB comprehensive plan consists of several documents, including the Women's Bay community plan. 14. Regulations governing the use and occupancy of land must be in accordance with the comprehensive plan. COMPLAINT Women's Bay Community Council, Inc. v. Kodiak Island Borough Case No. 3KO- 02 --1 Civil Page 2 of 17 ASHBURN Aro MASON LAWYERS A PROFESSIONAL CORPORATION SUITE 100 1130 WEST SIXTH AVENUE ANCHORAGE, ALASKA 99501.5914 (907) 276.4331 15. The Women' s Bay community plan states that the plan philosophy is to "maintain a rural residential area with decisions about the community to be based on this premise and commercial and industrial area segregation." 16. The owner of Tract A, Block 3, Bells Flat Alaska Subdivision (hereinafter the "Brechan Property") is Brechan Enterprises, Inc. ("Brechan"). 17. Brechan has entered into an agreement with Soil Processing, Inc. ("SPI") to allow SPI to use part of the Brechan Property as a site for thermal soil remediation. 18. Thermal soil remediation, as planned by SPI for the Brechan site, involves trucking in contaminated soil from other locations, stockpiling it on site, and burning it in a processing chamber. 19. SPI has stated that it "intends to accept and treat only petroleum-contaminated soil from underground storage tanks or other contaminated sites." There is no guarantee that the soils will not have other contaminants, as the testing procedures rely on analysis of relatively few samples from very large volumes of contaminated soil. Testing of contaminated soil at various contaminated sites in the region has confirmed the presence in some samples of contaminants other than petroleum, including heavy metals and other highly toxic, non-petroleum substances. 20. SPI's soil processing plant can process eight to ten tons of soil per hour. "A typical shift is 24 hours per day, 7 days per week." 21. The processing equipment burns approximately 85 gallons of liquefied petroleum gas ("LPG") per hour. If the processing equipment is down for preventative COMPLAINT Women's Bay Community Council, Inc. v. Kodiak Island Borough Case No. 3K0-02---1 Civil Page 3 of 17 ASHBURNAND MASON LAWYERS A PRoFEsSIONALCORPORATION SUITE 100 1130 WEST SIXTH AVENUE ANCHORAGE. ALASKA . 99501-5914 19071 276-4331 maintenance four hours per day, this represents 1,700 gallons per day, and almost 12,000 gallons per week. This is at least one and one-half times (150%) more than the average weekly LPG use of all the rest of Kodiak Island business and residential users combined. 22. The zoning permit allows SPI to have unlimited amounts of LPG on site as long as the tanks are somehow connected to the soil remediation processor. 23. SPI has already installed three LPG transport tankers of approximately 8,000 • gallons each on site to store this LPG. These tanks will have to be refilled on approximately a weekly basis, which will require LPG tanker trucks to travel the streets of the Women's Bay unity regularly. 24. The soil processing facility is being installed in close proximity to an existing asphalt plant on the same site. The asphalt plant has had a least one fire in the recent past. 25. The Women's Bay fire station is not equipped or trained to deal with a fire involving the LPG tanks. If such a fire occurs, the fire department's plan is to focus on evacuation of homes within a one-mile radius of the SPI facility and not attempt to fight the fire. Because the Brechan property is located at the entrance to the community, it will not be possible to evacuate most of the residents out of the community byroad. Instead, residents will have to move farther back into the mountains at the back of the community. 26. There are approximately nine homes and businesses, or approximately 24 people, not including the fire hall crew, in the blast zone from an explosion at the LPG tanks, and an additional approximately 150 homes and 370 people in the one-mile radius evacuation zone around the site. COMPLAINT Women's Bay Community Council, Inc. v. Kodiak Island Borough Case No. 3K0-02-c)-cS-\ Page 4 of 17 SHE3URNAND MASON LAWYERS PHOFESSIONALCORPORATION SUITE 100 1 ISO WEST SIXTH AVENUE ANCHORAGE. ALASKA 99501.5914 (907) 276.4331 27. SPI's plant will be able to process 1,400 tons or more of soil per week. If all of this soil is kept on site, this would still require approximately 100 trucks entering the community with contaminated soil per week. If the processed soil is removed from the community, either these same trucks or an equal amount of other trucks will leave the community fully loaded. 28. Contaminated soil requires special care in transport, in order to minimize the possibility of a loss of material during delivery. Loads of contaminated soil will be transported in dump trucks that will be required to back onto a ramp covered with a removable "tire liner" and stop at the edge of the storage cell so all contaminated soil will be dumped inside the cell. After transporting contaminated soils, the truck tailgate, rear of the truck, and tires are cleaned before the truck leaves the tire liner area. 29. Plant operation will require approximately 4,800 gallons of water per day. 30. KIB 's Community Development Depth tment has issued a permit allowing SPI to operate a soil remediation plant on the Brechan Property, in spite of the fact that soil remediation is not a permitted use in the industrial district. 31. KIB 's Community Development Department's purported justification for issuing the permit to SPI was that soil remediation was "similar" to those uses permitted by KIBC § 17.24.010. At the time this permit was issued, KIB 's Community Development Depat tinent based this determination on the recollections of former employees that they had told other people that the use was "similar" to an asphalt plant. No other soil remediation plant had COMPLAINT Women's Bay Community Council, Inc. v. Kodiak Island Borough Case No. 3KO-O2-z Civil Page 5 of 17 ASHBURN AND MASON LAWYERS A PROFESSIONAL CORPORATION SUITE 100 1130 WEST SIXTH AVENUE ANCHORAGE, ALASKA 99501.5914 (907) 276.4331 - , actually received a permit based on these informal ad hoc statements. The Department later drafted a written "determination" to justify its prior action. 32. KIBC § 17.03.090 does provide 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. 33. The KIB Community Development Depai tment apparently determined, without any factual investigation or any opportunity for public comment, that a soil remediation plant was a "similar" use to an asphalt plant and that the thermal soil remediation plant would be "similar in character and impact" to an asphalt plant. 34. As an initial matter, soil remediation and asphalt production are quite different. One bums contaminated soil at high heat, using tremendous amounts of LPG in order to create waste gas and burned, sterile soil. The other combines asphalt, a tar-like heavy petroleum, with • sand or gravel to create a paving material. 35. The KIB Community Development Department's after-the-fact justification states that "soil remediation plant and an asphalt plant are similar in trip generation and type of traffic." This is false and is not supported by any factual investigation by the Department. COMPLAINT Women's Bay Community Council, Inc. v. Kodiak Island Borough Case No, 3KO-O2-z Civil Page 6 of 17 ASHBURN ANo MASON LAWYERS A PAOFEsSIONALCORPORATION SUITE 100 1130 WEST SIXTH AVENUE ANCHORAGE. ALASKA 99501-5914 (907) 276-4331 The soil remediation plant will generate much more traffic on an annual basis than the asphalt plant. Although an asphalt plant on Kodiak Island only operates 30-50 days per year and does not operate 24 hours per day, the soil remediation plant will operate 365 days per year, 24 hours per day. In addition, contaminated soil is a regulated substance and must be transported in accordance with state and federal regulations. See 18 AAC 75.360, 18 AAC 78.250, 18 AAC 60.015; 49 C.F.R. § 171, et seq. 36. The KIB Community Development Department' s after-the-fact justification also states that a soil remediation plant and an asphalt plant are similar in utility demands. This is also false and again is indicative of the Depai tment's failure to conduct appropriate fact-finding. The entire basis for the Department's "finding" is that both operations "process material through the application of high heat, which requires a great deal of fuel and electricity to operate the equipment and thereby process the material." However, soil remediation and asphalt production are two entirely different processes. Unlike the permitted use of an asphalt plant, thermal soil remediation requires tremendous amounts of LPG to be transported onto and stored on site. In contrast, the asphalt plant uses diesel fuel. The asphalt plant uses commercially available electricity, delivered by utility lines, while the soil remediation plant requires a generator. 37. Although the KIB Community Development Department identified environmental impacts as an important concern in determining "similarity," its after-the-fact justification does not attempt to analyze these impacts, but instead states that such impacts are regulated by the Alaska Department of Environmental Conservation ("ADEC"). This is a COMPLAINT Women's Bay Community Council, Inc. v. Kodiak Island Borough Case No. 3K0-02- Page 7 of 17 ASHBURNAND MASON LAWYERS A PROFESSIONAL CORPORATION SUITE IVO 1190 WEST SIXTH AVENUE ANCHORAGE. ALASKA 99501.5914 (907) 276.4331 non-sequitur, as it is not necessary to regulate an environmental impact to determine if it is, in fact, similar. 38. The KIB Community Development Depa Latent also states in its after-the-fact justification that both uses require an air quality peimit through ADEC. This incorrectly implies that the two uses have a similar environmental impact. Asphalt manufacturing involves mixing a stable, heavy, and non-free flowing petroleum product with sand or gravel, and then removing it from the plant to use for paving. The manufacturing process releases steam into the air and creates some odors and noise. Because the asphalt plant cannot operate more than 30-50 days per year, these impacts are similarly limited. In contrast, a thermal soil remediation plant involves burning petroleum-contaminated soil with large quantities ofLPG. The petroleum in the soil is from a variety of sources, including waste lubricants and fuel that has leaked from World War II vintage underground tanks. This oil is less viscous and is much more likely to migrate than asphalt. The petroleum-contaminated soil must first be trucked into the community, with the attendant risk of spillage. Although the plant is supposed to process petroleum-contaminated soil exclusively, there is no guarantee that other contaminants, such as PCBs, heavy metals, and other toxins, which the thermal processing plant is not designed to remove from the soil, will not be in the soil. World War II vintage petroleum products can contain various toxic additives and impurities that are not present in most modem petroleum products, particularly lead, arsenic, other heavy metals, and PCP and PCBs. COMPLAINT Women's Bay Community Council, Inc v. Kodiak Island Borough Case No. 3K0-02--c:s- Civil Page 8 of 17 ASHBURN AND MASON LAWYERS A PROFES510 NAL CORPORATION SUITE 100 1130 WEST SIXTH AVENUE ANCHORAGE. ALASKA 99501-5914 (907) 276-4331 39. Because the soil processing plant can operate 365 days per year, 24 hours per day, its noise and odor impacts will be much greater. 40. The KIB Community Development Department's after-the-fact justification states that a soil remediation plant and an asphalt plant are similar because both operations "process material through the application of high heat." In fact, the temperature used in these processes is very different and results in very different chemical reactions that generate very different products. Asphalt manufacturing heats very viscous asphalt tar a modest amount, typically less than a couple hundred degrees Fahrenheit, in order to decrease the viscosity of the asphalt tar so it will mix with aggregate and be workable during paving. These temperatures are well below the ignition temperature of the petroleum components and results in minimal volatilization of petroleum products. In contrast, the temperatures used to remediate contaminated soil are much higher, in the 500 to 800 degree Fahrenheit range for the primary treatment chamber and the 1650 to 1800 degree Fahrenheit range in the secondary treatment or ignition chamber. These temperatures are well above the volatilization and ignition temperature of petroleum and many other substances. At these temperatures oxidization and other chemical reactions are promoted and new chemical compounds are produced. Most of these new chemical compounds are gasses at the elevated temperatures and are vented as exhaust gasses. At these very high temperatures many heavy metals, including mercury and lead, are volatilized, and arsenic is oxidized. PCP, PCB, and some other components of petroleum convert to dioxin at these temperatures. Clearly, the character and effect of the COMPLAINT Women's Bay Community Council, Inc. v. Kodiak Island Borough Case No. 3K0-02,-;\ Civil Page 9 of 17 ASHBURN AND MASON LAWYERS A PROFESSIONAL CORPORATION SUITE 100 1130 WEST SIXTH AVENUE ANCHORAGE. ALASKA 99501-5914 (907) 276.4331 "application of heat" are vastly different for asphalt manufacture and thermal resorption soil remediation processes. 41. The earthquake potential for Kodiak Island is one of the highest of any community in North America. The potential for a powerful earthquake (strong enough to cause significant damage to or destruction of facilities not specifically designed to resist severe earthquake ground motions) at Kodiak is comparable to the most earthquake prone locations in California immediately adjacent to the San Andreas fault. 42. Fire is a common result of a strong earthquake shaking, especially for facilities that have large amounts of flamniable fuel on site and equipment not specifically designed to resist strong ground motions. There is no consideration of this hazard in the SPI operation plan, and it does not appear to have been considered in the design and installation of the facility. . 43. No permitted use in the industrial zone requires the same amount of fuel storage, so the thermal soil remediation facility is not similar to any of those uses. 44. The KIB Community Development Departrnent's after-the-fact ju tification also states "both uses either introduce petroleum products into the material being processed or extract petroleum contaminants out of the material being, processed." In other words, according to the KIB Community Development Depaitnient, the two processes are "similar" because they have exactly the opposite goals. Also, this "reasoning" ignores the fact that asphalt and petroleum contaminants are very different types of petroleum products. COMPLAINT Women's Bay Community Council, Inc. v. Kodiak Island Borough Case No, 3K0-02--\ Civil Page 10 of 17 ISHBURN AND MASON LAWYERS 1PROFESSI0NAL CORPORATION SUITE 100 1130 WEST SIXTH AVENUE ANCHORAGE. ALASKA S9501.5914 (907) 276-4331 COUNT I DECLARATORY JUDGMENT 45. Plaintiff realleges the allegations contained in paragraphs 1 through 44 of the Complaint and incorporate them herein by reference, and further complains of the defendant as follows. 46. Alaska Statute 29.40.040 requires the Assembly, in accordance with a comprehensive plan adopted under AS 29.40.030, to adopt or amend provisions governing the use and occupancy of land "by ordinance." 47. Alaska Statute 29.25.020 provides the procedure that applies to the enactment of all ordinances. This procedure requires, among other necessary steps, a public hearing after appropriate notice and an opportunity to be heard. 48. Allowing non-permitted uses in a zoning district based solely on the unreviewable decision of an administrative employee violates AS 29.40.040 and AS 29.25.020. 49. To the extent that KIBC § 17.03.090(A) permits an administrative employee to expand the list of permitted uses in a districtit is an unlawful attempt to avoid the requirement that .a zoning regulation be accomplished by ordinance. 50. WBCC seeks a declaration that KIBC § 17.03.090(A) does not authorize the KIB Community Development Department to authorize new uses in a zoning district. 51. In the alternative, WBCC seeks a declaration that if KIBC § 17.03.090(A) does authorize the KIB Community Development Depai tment to authorize new uses, it is an illegal delegation of the zoning power. COMPLAINT Women's Bay Community Council, Inc. v. Kodiak Island Borough Case No. 3K0-02-Civil Page 11 of 17 ASHBURNAND MASON LAWYERS A PROFESSIONAL CORPORATION SUITE 100 1130 WEST SIXTH AVENUE ANCHORAGE, ALASKA 99501 -5914 (907) 276.4331 COUNT II DECLARATORY JUDGMENT 52. Plaintiff realleges, the allegations contained in paragraphs 1 through 51 of the Complaint and incorporate them herein by reference, and further complains of the defendant as follows. 53. Alaska Statute 29.40.050 requires. every borough assembly to provide by ordinance 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. 54. The KIB has not provided for any appeal process from a decision by the KIB Community Development Department to allow anew use in a zoning district based on a fording that it is "similar" to a permitted use. 55. WBCC seeks a declaration that the KIB has violated AS 29.40.050 and must provide for an appeal procedure if KIBC § 17.03.090(A) has any continuing vitality. COUNT III DECLARATORY JUDGMENT 56. Plaintiff realleges the allegations contained in paragraphs 1 through 55 of the Complaint and incorporate them herein by reference, and further complains of the defendant as follows. - 57. A thermal soil remediation plant is not similar to an asphalt plant. 58. Thermal soil remediation is a process to de- contaminate soil by burning it at extremely high temperatures, producing .inert soil. In contrast, an asphalt plant combines COMPLAINT Women's Bay Community Council, Inc. v. Kodiak Island Borough Case No. 3KO -02- . Civil Page 12 of 17 lSHBURNAND MASON LAWYERS PROFESSIO NAL CORPORATION SUITE 100 I 130 WEST SIXTH AVENUE ANCHORAGE. ALASKA 99501-5914 (907) 276.4331 asphalt — a heavy-end petroleum product— at moderately high temperatures with sand or gravel to produce hot asphalt for paving roads or driveways, and other commercial uses. 59. A soil remediation plant in Kodiak can operate 24 hours per day, 365 days per year, while an asphalt plant can only operate approximately 30-50 days per year. Operation of an asphalt plant is limited by weather conditions in at least two ways: First, conditions must be appropriate to apply the end product. Second, the manufacturing process requires minimum moisture content in the material. • In addition, there is a practical limitation based on the amount of asphalt that is needed in the area. As a result, a soil remediation plant can generate seven to ten times as much traffic, and will generate traffic during winter months when the asphalt plant would not operate. In addition, truck traffic for a soil remediation plant is a regulated activity, because the soil is contaminated. 60. Because the soil remediation plant will operate 24 hours per day, 365 days per year, it will also generate more noise, light, and odor pollution. 61. A thermal soil remediation plant and an asphalt plant have very different utility requirements. Brechan's existing asphalt plant operates off the existing electrical utility network, while the SPI soil remediation plant will require a large generator. The soil remediation plant will also require tremendous quantities of LPG as fuel, while the asphalt plant is diesel oil-fired. The diesel tanks for the asphalt plant present a fire risk that the local fire company can handle, while the local fire company is unequipped to handle a fire at the LPG tanks. The KIB Community Development Department issued the permit to SPI before it requested the fire department to prepare a response plan for the site. COMPLAINT Women's Bay Community Council, Inc. v. Kodiak Island Borough Case No. 3K0-02- Page 13 of 17 ASHBURN AND MASON LAWYERS A PROFESSIONAL CORPORATION SUITE 100 1130 WEST SIXTH AVENUE ANCHORAGE. ALASKA 99501-5914 (907) 276-4331 62. The environmental impacts of the soil remediation plant is also quite different from an asphalt plant because, among other possible impacts, (a) the soil remediation plant can operate seven to ten times more per year, and operates 24 hours per day, creating more noise and road traffic; (b) the risks from an earthquake are much greater; (c) spillage in transport will contaminate community soil; (d) water runoff from the stored contaminated soil and the wastewater pond may enter groundwater; (e) sterile soil left on site creates a vegetation dead zone; and (f) unknown other contaminants in the soil may enter the community's air and water. 63. The type of traffic generated by these two uses is also quite different. Asphalt production requires ordinary truck traffic, while soil remediation involves regulated truck traffic. Transporting trucks must be covered and special procedures to clean the trucks after delivery are required. Soil transportation presents a risk of contamination if soil is spilled anywhere other than the Prepared receiving pad and from water dripping from wet contaminated soil in the trucks during transport. 64. The soil remediation plant has a much bigger fire safety impact on the community than the asphalt plant alone would have, because of the three large LPG tanks on site The local fire department is not equipped to handle a fire at these tanks. 65. • WBCC seeks a declaration that the KIB Community Development Department erred in approving a permit for operation of a thermal soil processing plant on the Brechan property, and that the soil processing plant is not a permitted use in the industrial 66. Property values within the blast zone and the evacuation zone surrounding the thermal soil remediation plant will be negatively affected. COMPLAINT Women's Bay Community Council, Inc. v. Kodiak Island Borough Case No. 3K0-02-,..71Civil Page 14 of 17 hSHBURNArm MASON LAWYERS PROFESSIONAL CORPORATION SUITE 100 17 30 WEST SIXTH AVENUE ANCHORAGE. ALASKA 99501.5914 (907) 276.4331 67. The thermal soil remediation facility is also expected to affect the cost and availability of fire insurance rates for residents differently. 68. The presence of the fuel stored at the soil remediation plan has a much greater impact on the peace of mind of residents than the existence of the asphalt plant. COUNT IV DECLARATORY JUDGMENT 69. Plaintiff realleges the allegations contained in paragraphs 1 through 68 of the Complaint and incorporate them herein by reference, and further complains of the defendant as follows. 70. KIBC § 17.24.020(F) provides that "Petroleum or flammable liquid production refining, or storage" is only permitted in the industrial district "by obtaining a conditional use permit." 71. SPI will be storing up to 24,000 gallons of LPG on the Brechan property at any given time. This is equivalent to an approximately three-week supply of LPG for all other LPG business and residential customers on Kodiak Island. 72. The KIB Community Development Department has decided that the storage of this great quantity of LPG does not require a conditional use permit because it interprets "storage" to mean "bulk storage," and, in turn, interprets "bulk storage" as only involving storage for further resale. Because SPI plans to bum its LPG on a constant basis, the KIB Community Development Department has decided that the clear language of KIBC § 17.24.020(F) does not apply. COMPLAINT Women Bay Community Council, Inc. v. Kodiak Island Borough Case No. 3K0-02-as■—1 Civil Page 15 of 17 ASHBURN AND MASON LAWYERS A PROFESSIONAL. CORPORATION SUITE 100 1130 WEST SIXTH AVENUE ANCHORAGE. ALASKA 99501-5914 (907)276-4331 73. The KIB Community Development Depaitinent has also stated that it is its position that fuel storage that is "necessary in support of a permitted principal,use may be allowed as a constituent part of the overall permitted use, so long as the amount of the fuel supply is customary and proportional to the use, and that the installation of those facilities are in compliance with applicable life safety and building safety requirements, and the performance standards of KIBC 17.24.060.C." 74. This analysis ignores the fact that storage of 24,000 gallons of LPG is not necessary in support of any penuitted principal use. Soil remediation is not a permitted principal use. 75. The KIB Community Development Department has not pointed to any permitted use in the industrial zone that would require storage of 24,000 gallons of LPG accessory to its principal use. Therefore, the Borough Assembly has never implicitly approved of storage of this much propane as an accessory use. 76. SPI's proposed storage of LPG without a conditional use permit violates KIBC § 17.24.020. WBCC seeks a declaration that the storage of LPG is not allowed in industrial districts without a conditional use permit, and that because no conditional use permit has been issued, the storage is illegal. PRAYER FOR RELIEF WHEREFORE, having fully set forth its complaint, plaintiff prays for the following: relief: COMPLAINT Women's Bay Community Council, Inc. v. Kodiak Island Borough Case No. 3KO-O2-5 Civil Page 16 of 17 ASHBURN AND MASON LAWYERS A PROFESSIONAL CORPORATION SUITE t oo t 130 WEST SIXTH AVENUE ANCHORAGE. ALASKA 99501-5914 (907) 276.4331 1. An order declaring that KIBC § 17.03.090(A) does not authorize the KIB Community Development Department to authorize new uses in a zoning district. 2. An order declaring that to the extent that KIBC § 17.03.090(A) does authorize the KIB Community Development Department to authorize new uses, it is an illegal delegation of zoning power. 3. An order declaring that the KIB has violated AS 29.40.050 by not providing any procedure for appeal from the KIB Community Development Department's interpretation and application of KIBC § 17.03.090(A), and requiring KIB to adopt such a procedure. 4. An order declaring that the KIB Community Development Department erred in approving a permit for the soil remediation plant, as a soil remediation plant is not similar to an asphalt plant or similar in character and impact to an asphalt plant. 5. An order declaring the permit issued for use of the Brechan property as a thermal soil remediation plant to be invalid because it purports to allow storage of LPG without a conditional use permit, in violation of KIBC § 17.24.020(F). 6. An award of plaintiff s full costs and attorney's fees, as public interest litigants. 7. Such other relief as the court deems just and reasonable. Date: . k 4_14 ASHBURN & MASON Attorneys for Women's Bay Community Council, Inc. By William S. Cummings Alaska Bar No. 9407071 COMPLAINT Women's Bay Community Council, Inc. v. Kodiak Island Borough Case No. 3K0-02-"asS—kCivi1 Page 17 of. 17 Aug - 027,2002 01:31pm From -A burn 4ason 1: MARK E. ASHBURN DAN' R. CROSBY WILLIAM S. CUMMINGS JOHN C. MCCARRON DONALD W. McCLINTOCK II DONNA J. McCREADY A. WILLIAM SAUPE - JULIAN L MASON 111 KIRSTEN TINGLUM OF COUNSEL +2778235 ASHBURN AND MASON LAWYERS A PROFESSIONAL CORPORATION 1130 WEST SIXTH AVENUE, SUITE 100 ANCHORAGE, ALASKA 99501 -5914 RECEIVED AUG 0 2 2002 KIB MANAGER TELECOPIER COVER SHEET T -417 P.001 /003 F -941 TELEPHONE (907) 276-4331 TELECOPIER (907) 277 -8235 Named Patrick Carlson (907-486-9374) Duane Dvork (907486 -9396) cc: KIB A4embiy (907 -486 -9391) — PLEASE PROVIDE COPY TO ALL ASSEMBLY MEMBERS KIB Ma. or (907=486 - 9374) Brechan Enterprises, Inc. (907 -486 -4889) Soil Pro4essing, Inc. (274 -9295) Matthev Jamin (907-486-6112) I 1. 1 From: William S. Tummmgs S• Date: August 2, 20 2 Client: Women's lay Client Number: 9125.190 Number of Pages (including cover sheet): 3 Telecopier Operatok: Sandra Webb IF YOU DO NOT RECEIV ALL PAGES, PLEASE CALL AS SOON AS POSSIBLE (907) 276-4331_ For your convenience, our telecopier$number is (907) 277 -8235. Our telecopier is compatible with all 1, 2 and 3 group machines and is fully automatic. 1 THIS TRANSMISSION IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED AND Y CONTAIN INFORMATION THAT IS PRIVILEGED AND CONFIDENTIAL. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISCLOSURE, DISTRIBUTION, OR COPYING OF THIS INFORMATION IS STRICTLY PROHIBITED. IF YOU HAVE RECE1V'4D THIS TRANSMISSION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY TELEPHONE, AND RETIURN THE ORIGINAL DOCUMENTS TO US AT THE ABOVE ADDRESS VIA THE UNITED STATES POSTAL SERVICE. CONFIDENTIALITY NOTICE Aug- 02j2002 01:31pm From -A MARK E. ASHBURN DAN! R. CROSBY WILLIAM S. CUMMINGS JOHN C. MeCARRON DONALD w. McCLINTOCK DONNA J. MecREADY A. WILLIAM BAUPE KERSTEN TINGLUM JULIAN L. MASON OP COUNSEL u n ^d_Wason +2778235 AS H B U AND MASON LAW YE RS A PROFESSIONAL CORPORATION 1130 WEST SIXTH AVENUE, SUITE 100 ANCHORAGE. ALASKA 99501-5914 August 2, 2002 T-417 P.002/003 F -941 TELEPHONE (907) 276 -4331 TELEGOPIER (907) 277 -8235 wsc@anchoriaw.com Patrick S. Carlson, Borough Manager VIA FACSIMILE — (9071 4 6 -9374 Duane Dvorak, Direcor VIA FACSIMILE — (907) 486 -9396 Community Develop ent Department Kodiak Island Borou 710 Mill Bay Road Kodiak, Alaska 9961 Re: July 3 , 2002 Request for Reconsideration and Withdrawal of Permit Notice, of Appeal Soil Processing, Inc. Proposed Operation Our File: 9825.190 Dear Mr. Carlson anci Mr. Dvorak: As you know, Ipresent the Women's Bay Community Council, an association of concerned citizens who live and own pro erty in Women's Bay_ To this date, I am unaware ofwbo, if anyone, is representing the Borough or the D partrnent on the issues raised in my letter, so I am writing to you. I am, however, copying this letter to Mtthew Jamin, as I understand he represents the Borough on at least some issues. Ifyou are represented, please have your attorney contact me. On June 17, 20p2, Mr. Dvorak informed Jim and Nancy Wells that a similar use determination by the Department could nol be appealed to the Planning and Zoning Commission, and that the only means of "appellate" review would be a direct action in court. I understand from my clients that the Borough is now taking the position that'the Women's Bay Community Council may have the right to an administrative appeal pursuant to KIBC § 1 .100.020. If that is the case, please treat my July 30, 2002 letter and this letter as a notice of appeal. If, , ntrary to the Borough's previous position, the Borough concludes that some other administrative appeal 4rocess applies, please treat my July 30 letter and Ibis letter as notice ofappeal pursuant to whatever procedure you decide applies. 1 In any event, Il t that the permit issued by the Department is stayed pending the outcome ofthis appeal. See, e.g., KIB § 17.90.020. Please inform Soil Processing, Inc. and Brechan Enterprises ofthis as soon as possible, so that they do not waste unnecessary resources pursuant to an ineffective permit. I Y Aug-02;2002 01:31nm From—Aiiburn rd,ilason +2778235 T-417 P.003/003 F-941 ASHBURN AND MASON,PC Patrick S. Carlson, Borough Manager Duane Dvorak, Dire 4r Community Develop ent Department August 2, 2002 Page 2 I I. contrary to stfitement last night, you conclude that there is no administrative appeal, please tell the Assembly members itmediately, as Kodiak Island Borough citizens and taxpayers and their elected representation should iiotbe constrained from talking to one another over issues that call out for legislative solutions if there is no a pending appeal. Of course, even in the event of a pending appeal, citizens may communicate with theirrepresentatives about possible pendiUg legislation, such as an ordnance imposing a moratorium on "similai. use" development. In the meantime, as we have not been notified of any particular appellate procedure ye4t, I am copying this letter to the Assembly. Thank you for onsideration. 1 await your reply. Very truly yours, ASHBURN & MASON WSC:sjw 3. cc: KIB Assembl and Mayor KIB Planning fL Zoning Commission Brechan EnteOrises, Inc. Soil Processink, Inc. Matthew D. Jtin NAwsc\982510vorak Carlson William S. Cummings Kodiak Island Borough William S. Cummings Ashburn and Mason, Lawyers Inc. 1130 West Sixth Avenue, Suite 100 Anchorage, Alaska 99501 -5914 Community Development Department 710 Mill Bay Road Kodiak, Alaska 99615 Phone (907) 486 -9363 Fax (907) 486 -9396 www.ldb.co.kodiak.ak.us August 2, 2002 Re: Request for Reconsideration and Withdrawal of Zoning Compliance Permit (ZCP) BZ 02 -061, which allows a soil remediation use and related equipment and improvements to be located on Tract A, Block 3, Bells Flats Alaska Subdivision as a similar use, in accordance with KIBC Section 17.03.090 A (Similar uses may be permitted). (Permittee: Soil Processing Inc.; Land Owner: Brechan Enterprises, Inc.) Dear Mr. Cummings: This letter is in response to your letter referenced above and dated July 30, 2002. The borough welcomes the opportunity to clarify and resolve any disagreements with the department's interpretation of Kodiak Island Borough Code, Title 17. In your letter you have raised a number of issues of concern to the residents of Womens Bay. Those issues, relating directly to a similar use determination, have now been addressed in the attached written similar use determination. Regarding the request to withdraw or rescind permit BZ 02 -061, the department must respectfully decline. The attached similar use determination formalizes the findings that staff relied upon as the basis for issuing permit BZ 02 -061. Through this written determination and related findings, it is hoped that the questions and concerns of your clients can be satisfactorily resolved. If not, the written determination and related findings may serve as a basis for further review, either by petition to the Borough Assembly, or by petition to superior court pursuant to KIBC 17.7 30.B. Respe • fu , y submi erector Cc: Patrick S. Carlson, Borough Manager; KIB Assembly and Mayor; KIB Planning and Zoning Commission; Brechan Enterprises, Inc.; Soil Processing, Inc. Attachments: Similar Use Determination, per KIBC 17.03.090.A, allowing soil remediation in the I- Industrial zone as a use similar to an asphalt batch plant, dated August 2, 2002. ( 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 Date: August 2, 2002 To: Administrative Opinion File Copy: Property File for Tract A, B1oj, Bells Flats AK Sub. From: Duane Dvorak, Director Re: A Similar Use Determination, per KIBC 17.03.090.A, allowing soil remediation in the I- Industrial zone as a use similar to an asphalt batch plant. Background This determination is made in accordance with KIBC 17.03.090.A and is intended to address the use of I-Industrial zoned land for soil remediation, as a use similar to an asphalt batch plant and similar in terms of character and impact. This question has arisen regarding the recent permitting of a soil remediation facility on Tract A, Block 3, Bells Flats Alaska Subdivision, but the determination should be construed to be of general application to all land within the Kodiak Island Borough that is zoned I-Industrial. In a letter to Bells Flats residents Jim and Nancy Wells, dated May 24, 2002, staff made reference to soil remediation use being similar to a permitted asphalt batch plant. This reference was made on the basis that borough staff had previously responded to questions at the public counter in the Community Development Department with this same information.. A discussion with the former department director indicated that the department has been providing this information to the public since 1996 or 1997, according to her recollection. Correspondences on file during 1996 and 1997 indicate that the subject of soil remediation was a common topic of discussion during this period. This resulted, in good measure, from a growing awareness of unresolved soil contamination issues at formerly used military sites, and other locations, some dating back to the Cold War Era and World War H. At that time, it, appeared that environmental awareness coupled with technological advances were providing increasingly safer and more cost effective methods for addressing these long standing contamination problems in the community. Because previous inquiries did not result in the issuance of a zoning compliance permit, which would have been assigned to a particular piece of property, it is possible that no written determination has previously been made to formally address •this issue. In any event, diligent Similar Use Deterrninati,r, Soil Remediation in the I-Industrial zone Page 2 of 8 research by staff has not been able to identify a written similar use determination regarding soil remediation in the I-Industrial zone. In the context of the Wells request, staff noted that KIBC 17.03.090.A does not require a written determination or written findings. At that time, staff did not wish to substitute it's judgment, under the present circumstances in Womens Bay, for a decision that appeared to have been made under the previous administration. Nevertheless, in light of the recent request from the concerned citizens of Womens Bay for the reconsideration and withdrawal of Zoning Compliance Permit BZ 02-061, dated July 30, 2002, the department has been requested to issue a written determination at this time. This memorandum is intended to provide written findings for the record that will clarify the basis of the department's determination to allow the soil remediation use. Analysis As previously noted, the Community Development Department has determined that soil remediation use is similar to a permitted asphalt batch plant, which is a permitted principal use in the I-Industrial zone. It should be clarified, however that this reference only applies to those soil remediation activities utilizing a thermal desorption process. This determination would not, for example, apply to a bio-remediation process. The term "similar use" is not defined in the Kodiak Island Borough Code. It is, however, a "term of art" in the planning and zoning field. Staff refers to The New Illustrated Book of Development Definitions (Rutgers, 1993) regarding a definition of similar use as follows: "A use that has the same characteristics as the specifically cited uses in terms of the following: trip generation and type of traffic, parking and circulation, utility demands, environment impacts, physical space needs, and clientele." In a related comment, the term "same" is clarified as shown below: "The term 'same' refers to the range of impacts of all the previously cited uses as opposed to one specific standard for each characteristic." Based upon this definition, the department finds that the number of trips and the type of traffic generated to and from the site are similar. The movement of contaminated soil is very similar to the movement of batched asphalt. The movement of such materials is usually accomplished in large quantities requiring the use of heavy equipment such as dump trucks, belly-dump tractor- trailers, front-end loaders, conveyors, etc. In addition, the parking and circulation requirements of the vehicles used in these uses are similar in nature. Because the I-Industrial zone permits concurrent uses, there is no reason why multiple uses cannot occupy the same piece of property so long as the practical requirements of the zoning district, parking code and other applicable regulations are met. Similar Use Determinati:,_,' Soil Remediation in the I- Industrial zone Page3 of 8 Regarding utility demands, it appears that soil remediation facilities utilizing a thermal desorption process are similar to asphalt batch plants in that they process material through the application of high heat, which requires a great deal of fuel and electricity to operate the equipment and thereby process the material. The borough code does define the term industry in KIBC 17.06.335 as follows: "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. Environmental impacts are generally regulated by the Alaska Department of Environmental Conservation (ADEC). The department defers to ADEC in its area of expertise because the Borough has not enacted specific environmental standards and it does not generally have qualified staff -on -hand to enforce environmental standards. The department does, however, exercise discretion to withhold issuing a permit until the developer can show ADEC approval for the use, subject to the jurisdiction and regulatory authority of ADEC. After reviewing soil remediation (by means of thermal desorption) and asphalt batch' plant operation, it has been learned that both uses require an air quality permit through ADEC. Both processes employ large quantities of flammable petroleum products to operate the equipment and heat the material. In addition, both uses either introduce petroleum products into the material being processed or extract petroleum contaminants out of the material being processed. Both processes have the potential to create other environmental impacts of a similar nature including noise, atmospheric emissions, soil contamination, water contamination, etc. To a large extent this potential is recognized in the intent language of the I- Industrial zone in KIBC 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 Similar Use Determinati Soil Remediation in the I- Industrial zone Page4of8 D. To encourage the discontinuance of existing uses that would not be permitted as new uses under the provisions of this chapter. The extent to which the Borough can regulate environmental impacts generated from industrial activities is also set forth in the I- Industrial zoning district standards" per KIBC 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 shrillness; 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." 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. Similar Use Determinati. Soil Remediation in the I-Industrial zone Page 5 of 8 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." Regarding physical space needs, an asphalt batch plant requires a great deal of room for stockpiled raw materials to be used in the asphalt batching process, in addition to the heavy equipment used to move the product/material which may, or may not, be stored onsite. Outdoor storage is a permitted use in the I-Industrial zone as a specifically permitted use in the B- Business district in accordance with KIBC 17.21.020.W and through the cumulative application of permitted B-Business zone uses in KIBC 17.24.010.A. Outdoor storage is, however, subject to certain setbacks from the exterior property boundaries as previously noted above in KIBC 17.24.060.F. With regard to the utilization of large quantities of flammable petroleum products on the site in support of asphalt batch plant and similar uses, staff has reviewed the applicable provisions of KIBC 17.24.020.F which addresses conditional uses that may be allowed in the I-Industrial zone subject to a public hearing review. The applicable language is shown below: KIBC 17.24.020.F Petroleum or flammable liquid production, refining or storage. This provision, as it applies to petroleum or flammable liquids, does not indicate a specific quantity for storage purposes that would trip the requirement for a conditional use review. In addition, the code does not distinguish between the various types of petroleum or flammable liquids such as fuel oil, diesel oil, unleaded gas, aviation gas, jet fuel, propane, butane, or other flammable liquids. In past practice, the department has commonly used the definition of "bulk storage" to distinguish the customary storage of petroleum or flammable products used in support of a permitted principal use in the I-Industrial zone, from that "bulk storage" of petroleum or flammable products in the I-Industrial zone which is itself a principal use requiring a conditiona use permit. In this regard, the department has again relied upon The Illustrated Book of Development Definitions (Rutgers, 1993), which defines "bulk storage" as: "The storage of chemicals, petroleum products, grains, and other materials in structures for subsequent resale to distributors or retail dealers or outlets." In a related comment, the tei.ni "bulk storage" is further clarified as shown below: "Bulk storage is essentially a warehousing and wholesaling operation. The products are primarily sold for eventual resale and not directly to the consuming public." Similar Use Determina Soil Remediation in the I- Industrial zone Page 6 of 8 This interpretation has been consistently applied by the department in determinations, both formal and informal, for many uses located in the I- Industrial zone, the B- Business zone, the LI -Light Industrial zone and PL- Public Use Land zone. The department interpretation has been that fuel storage, whether it be aviation fuel, diesel, propane, etc., which is necessary in support of a permitted principal use, may be allowed as a constituent part of the overall permitted principal use, so long as the amount of the fuel supply is customary and proportional to the use, and that the installation of those facilities are in compliance with applicable life safety and building safety requirements, and the performance standards of KIBC 17.24.060.C. The only exception to the rule that staff is aware of is the fact that gasoline service stations are a permitted principal use in the B- Business zone as well as the I- Industrial zone, by virtue of the cumulative nature of the uses allowed in the I- Industrial zone. There is a specific reference to underground storage in the performance standards of the I- Industrial zone (KIBC 17.24.060.C). As previously noted for petroleum or flammable liquid storage in the I- Industrial zone as a conditional use, there is no predetermined quantity or volume of product specified for gasoline service stations given the cumulative nature of the product that may be stored onsite. The type and quantities of flammable or petroleum products customarily allowed for gasoline service stations may vary, but usually includes large quantities of gasoline, diesel oil, and often propane service. While gasoline service stations have customarily relied on underground tanks in the past, this has been changing over the years with the advent of new environmental regulations pertaining to underground storage tanks. This has resulted in a number of service station operators opting to use above ground storage tanks of varying sizes. Determination Based on the preceding analysis, the Kodiak Island Borough Community Development Department hereby determines that soil remediation use, based upon thermal desorption technology, is a use similar to an asphalt batch plant, which is a permitted principal use in the I- Industrial zoning district, and which is similar to an asphalt batch plant in terms of its character and impact. Findings 1. This determination is an after -the -fact determination that is being made in direct response to a project located in the Womens Bay community that has been granted zoning compliance by the Community Development Department. (ZCP BZ 02 -061) Nevertheless, this determination is presented as a determination of general nature that is applicable to any I- Industrial zoned property. 2. This determination is made in substantial reliance upon the referenced definitions that are found in The New Illustrated Book of Development Defmitions (Rutgers, 1993) which has been a resource guide for the Community Development Department since 1993, when it replaced the prior edition (Rutgers, 1981) which is still on file in the Community Development Department library. Similar Use Determinati4.,_ Soil Remediation in the I- Industrial zone Page 7 of 8 3. The Kodiak Island Borough Code provides a range of land use zoning districts to provide for the everyday needs of the borough community. The I- Industrial zone is an appropriate district for industrial activities as allowed by KIBC Chapter 17.21. While it is recognized in the code that industrial uses are not compatible with residential uses, the interpretation of the I- Industrial district standards must be consistent with prior determinations made for industrial uses in other locations. 4. Soil remediation, based upon thermal desorption technology, is a use similar to an asphalt batch plant, which is a permitted principal use in the I- Industrial zone, and both uses are similar in terms of their character and impact as described more fully in the analysis portion of this determination. 5. Environmental regulations related to industrial uses such as asphalt batch plants and soil remediation facilities are clearly the province of the Alaska Department _ of Environmental Conservation (ADEC) to enforce. In order to ensure compliance with these regulations to the greatest extent possible, the department has withheld zoning compliance permits until appropriate notifications and plan reviews have taken place and ADEC has issued approval to begin development of regulated facilities.. 6. In accordance with KIBC 17.24.060.0 (Fire and safety hazards) the department has routinely deferred to the State Fire Marshal and to the local Building Official, who are responsible for regulating mechanical and plumbing installations, to determine that the uses manifestly allowed in the I- Industrial zone properly configured and constructed from the standpoint of life safety and structural safety. Similar to the manner in which permit coordination is done . with ADEC, the department has withheld zoning compliance permits until the appropriate public safety and building officials have been notified and approvals to proceed with development are obtained. Appeal Rights As part of this review and analysis, staff has reviewed KIB Ordinance 92 -17, which amended KIBC 17.100.020.0 (Powers of the Board) to specifically allow appeals to the Board of Adjustment (Assembly) from Similar Use Determinations made pursuant to KIBC 17.03.090. Although the amendment to KIBC 17.100.020.0 added only the phrase "and from findings as may be required by sections of this title ", supporting documentation in the file, which was not included in the ordinance, clearly establishes a linkage with KIBC 17.03.090. This amendment was not associated with a similar amendment in KIBC 17.100.030 (Persons who may appeal), which is the section that determines who may appeal to the Board of Adjustment. As a result, it does not appear that there is created here a right of appeal that would apply to any aggrieved party. Nevertheless, it appears that the Assembly may elect to consider . a petition for review of a similar use ''determination under KIBC 17.100.020.0 (Powers of the Board) if in its judgment such review seems warranted. Similar Use DeterminatiL,' Soil Remediation in the I-Industrial zone Page 8 of 8 If the Assembly elects not to review the determination, the provisions of KIBC 17.75.030.B would still be applicable and would provide an avenue of appeal directly to superior court. This procedure is open to any aggrieved party and is consistent with the applicable provisions of AS Title 29 and other applicable state statutes regarding administrative procedures. The Alaska Statutes generally maintain that a right of appeal must exist for any administrative government decision, either to a commission, board of adjustment or the court system. Ju1:,80-2002 02:39pm From- Ashbul'„ d Mason MARK E. ASHBURN DANI R. CROSBY WILLIAM S. CUMMINGS JOHN C. M'CCARRON DONALD W. MCCLINTOGK 111 DONNA J. McCREADY A. WILLIAM SAUPE JULIAN L. MASON III KIRSTEN TINGLUM OF COUNSEL Name: +2778235 T -378 P.001 /004 F -871 ASHBURN AND MASON LAWYERS A PROFESSIONAL CORPORATION 1130 WEST SIXTH AVENUE, SUITE 100 TELEPHONE ANCHORAGE, ALASKA 99501 -5914 (907) 276 -4331 TELECOPIER COVER SHEET Duane Dvorak (907 -486 -9396) TELECOPIER (907) 277 -8235 cc: Patrick Carlson (907 -486 -9374) KIB Assembly (907 -486 -9391) — PLEASE PROVIDE COPY TO ALL ASSEMBLY MEMBERS K B Mayor (907 -486 -9374) Brechan Enterprises, Inc. (907 -486 -4275) Soil Processing, Inc. (274 -9295) From: William S. Cummings Date: July 30, 2002 Client: Women's Bay Client Number: 9825.190 Number of Pages (including cover sheet): 4 Telecopier Operator: Sandra Webb IF YOU DO NOT RECEIVE ALL PAGES, PLEASE CALL AS SOON AS POSSIBLE (907) 276 -4331. For your convenience, our telccopier number is (907) 277 -8235. Our telecopier is cornpatble with all 1, 2 and 3 group machines and is fully automatic. CONFIDENTIALITY NOTICE THIS TRANSMISSION IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL Olt ENTITY TO WHICH IT IS ADDRESSED AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED AND CONFIDENTIAL. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISCLOSURE, DISTRIBICTI'ION, OR COPYING OP THIS INFORMATION IS STRICTLY PROHIBXTED. IF YOU HAVE RECEIVED THIS TRANSMISSION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY TELEPHONE, AND RETURN TEE ORIGINAL DOCUMENTS TO US AT THE ABOVE ADDRESS VIA THE UNITED STATES POSTAL SERVICE. Jul-30-2002 02:39pm From- Ashbu, d d Mason +2778235 MARK E. A5HEIURN DANI R.- CROSBY WILLIAM S. CUMMINGS JOHN C. MCGARRON DONALD W. MC LINTOCK XE DONNA J. McCREADY A. WILLIAM SAUPE KIRSTEN TINGLUM JULIAN L. MASON III OF CQUN C. ASI- 1BUIZN AND MASON LAWYERS A PROFESSIONAL CORPORATION 1130 WEST SIXTH AVENUE, SUITE 100 ANCHORAGE, ALASKA 99ol -S9I4 July 30, 2002 Duane Dvorak, Director Community Development Department Kodiak Island Borough 710 Mill Bay Road Kodiak, Alaska 99615 Re: Request for Reconsideration and Withdrawal of Permit Soil Processing, Inc. Proposed Operation Our File: 9825.190 Dear Mr. Dvorak: T -378 P.002/004 F -871 TELEPHONE (907) 276 -4331 TELECOPIER (907) 277-8235 wsaanchorlaw.com VIA FACSIMILE — (907) 486 -9396 I have been retained to represent the Women's Bay Community Council, an association of concerned citizens who live and own property in Women's Bay. The Women's Bay Community Council represents the Women's Bay community. I am writing to express disagreement with the Kodiak Island Borough Community Development Department's recent decision to issue a zoning compliance permit to Brechan Enterprises, Inc. for Soil Processing; Inc's proposed operations on Brechan's Women's Bay site, and to ask you to rescind this decision. The Brechan site is zoned for Industry. Neither soil remediation not fuel storage is permitted in the Industry zone. See KIBC § 17.24.010 (listing permitted uses and not listing soil remediation). "Land uses not listed as a permitted use in a district are prohibited." KIBC § 17.03.080. The issued permit claims that soil remediation is a "similar use per 17.03.090," but this is incorrect. KIBC § 17.03.090 provides: 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 arurunpact. 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. In all cases, the outdoor storage ofmaterials and equipment is prohibited unless it is listed as a permitted or conditional use in a district. Contrary to the statement in the permit, soil remediation is not similar to any of the uses permitted by KIBC § 17,24.010. None of the liste permitted uses involves transporting, storage, or remediation of co t nitnated soil or, forthatma' • , . + y other contaminated products ormaterials. s used m KIBC § 17.03.090, `similar" uses mustlimi - + to use 1. are substantla y e =s , such as a use that reflects a modified Jul-2.30-2002 02:40pm From- Ashbu'r_ _;_d Mason Duane Dvorak, Director Community Development Department July 30, 2002 Page 2 ASHBURN AND MA.SON,PC T-378 P OIl8J00,4 F -Bil approach to the same permitted manufacturing process, but with a different name. To interpret "similar" so broadly as to include any use that can be compared to a permitted use in any way, as the Department has apparently done, would render KIBC § 17.03.080 meaningless, and essentially allow the Department to amend the list ofpermitted uses et Wills This in turn would deprive the citizens of the Kodiak Island Borough, including the members of the Women's Bay community, of due process, including the right to comment on proposed amendments to the Borough's zoning code. Moreover, even if KdBC § 17.03.090.A. allows an expansive interpretation of the word similar, the proposed soil remediation plant is still not similar to any of the permitted uses. As described in Soil Processing, Inc.'s Operations Plan, thermal remediation of petroleum contaminated soil is substantially different from any permitted use. In fact, if it is similar to any use listed in KIBC 17.24, it would probably be to one of the conditional uses, such as "garbage disposal sites, dumps and sanitary landfills" or "petroleum or flammable liquid production, refining or storage." See KIBC § 17.24.020 (E and F). Therefore, if any subsection of IBC § 17.03.090 applies, it would appear to be subsection B, which requires a decision by the commission after a public hearing. This would also at least partially serve the Borough's interest in having public input before allowing previously non permitted uses to move into a neighborhood. In addition, it does not appear that the Department has made specific findings that the soil remediation plant is, in fact, similar in character and impact to any existing use, as is also required by KIBC § 17.03.090.A., if it applies. It also does not appear that such findings could be made on the present record, as the proposed use is of a different character and. will have a substantially greater impact than any of the uses expressly permitted in that district. For example, the soil remediation plant will result in greater truck traffic, and for the first time introduce24- hours - a-day. seven- days - a-week operations into the neighborhood. Further, it appears that the plant will have a materially different impact on the neighborhood, as unknown contaminants from other areas, which by virtue of their composition andnature are deemed hazardous to the extent that they must be transported, stored, and handled using special procedures, and which require remediation, are trucked into the neighborhood. These contaminants may be released into the air and/or introduced into the water supply. Even if these impacts are not of a sufficient degree to prevent ADEC approval, they will be substantially different from any previous impact and, therefore, prevent afindingthatthe soil remediation plant has a similar impact to other uses permitted in that zoning district. Finally, there are two additional problems with the proposed site plan. First, Soil Processing, Ine.'s Operations Plan reveals that it will have aminimum oftwo LPG tankers on site. Therefore, at aminimum, at least one tanker will be storing fuel at any given time. This requires a conditional use permit. See KlBC § 17.24.020. As no such conditional use permit has been issued to my knowledge, it appears that the proposed use is not in zoning compliance, even if the use is otherwise similar, and, therefore, should not have received a zoning compliance perniit. The residents of the area are deeply concerned about this fuel storage, as the area does not have alternative evacuation, and its fire department is not equipped to battle a fire involving one of these tanks. A fire at this site would block all egress to and from the community. According to the Women's Bay Fire Chief, the presence of the LNG tankers on the site will require a fire response plan that will result in evacuation of community residents into the mountains. No other use results in such a drastic evacuation plan. As it appears Ja1�30 -2002 02 :40pm From- Asirhu:r..:d Mason +2778235 T-378 P.004/004 F -871 ASHBURN AND MAS©N,PC Duane Dvorak, Director Community Development Department July 30, 2002 Page 3 that the Department did not have this information when it issued the permit, it only is good cause to reconsider the permit Second, Soil Processing's plan calls for the outdoor storage of contaminated soil. This is not permitted in the Industry District, and "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." KIBC §17.03 .090.C. For these reasons, I respectfully request that you withdraw as improvidently granted the zoning compliance permit issued for this site and this use, and either require Brechan and Soil Processing to submit a conditional use application, or deny theirrequest in its entirety. lithe zoning compliance permit is not withdrawn, Women's Bay Community Council plans to bring an action to require the Kodiak Island Borough Community Development Deparpmentto interpret properly and enforce the zoning code. In the meantime, any action by either Brechan or Soil Processing to proceed with its plan will not be in compliance with the zoning requirements and is, therefore, subject to an enforcement action pursuant to KIBC § 17.75.030. Thank you for your consideration, I hope that you will agree that it is advisable to not allow further expansion of the permitted uses without public input. Very truly yours, ASHBURN & MASON William S. Cummings WSC:sjw cc: Patrick S. Carlson, Borough Manager KIB Assembly and Mayor KW Planning & Zoning Commission Brechan Enterprises, Inc. Soil Processing, Inc. Fi:1My Documems198251Dvorak Lt