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KALSIN BAY EST LT 3A - Variance
VICINITY MAP SCAT. 1• • I MILS l • • ID PREPARED FOR WAYNE .54R6B"A/T RO. LbY 8920 igct rkaA/esFs 916.4 A 11-•■ SUM IVI5IDN OF'. GD7 5 ,kRLS /A/6AY STATES,0.6.51.11? VEY 2C74, PLAT N'4VZ , CREATING LOTS 3A ihnu, 3G • " :.:�FfALS/AI 43.47e-ESTATES, ,y U s s//R✓6Y8B7B WITHIN KODIAK RECORPING DHTR%C'T ,s pO t W SIIEttti -jCS • yy, D1WH`f r•3;*",4 g¢ a'( � gqg�. gg tS:au.A. 9 os t td. .' J : 5YA§.L.a :" . Tqr # Copies Furnished: Kodiak Island Borough Community Development Department Kodiak Island Borough 710 Mill Bay. Road Room 205 Kodiak, Alaska 99615 Grant Shields 1227 Mill Bay Road Kodiak, Alaska 99615 CME rJUL 19 2005 COMMUNITY DEVELOPMENT DEPARTMENT REPLY TO ATTENTION OF Regulatory Branch East Section POA-2005-1138-8 DEPARTMENT,OF THE ARMY U.S. ARMY ENGINEER DISTRICT, ALASKA P.O. BOX 6898 ELMENDORF AFB, ALASKA 99506-0898 AL 1 5 2005 Wayne Sargent Post Office Box 8928 Kodiak, Alaska 99615-8928 Dear Mr. Sargent: E E 1111 JUL 19 2005 -J COMMUNITY DEVELOPMENT DEPARTMENT We have received notification from the Kodiak Island Borough (KIB) of your request for a proposed variance to develop a subdivision. This project is located within sections 3 and 10, T. 30 S., R. 20 W., Seward Meridian; Latitude 57.5982° N., Longitude 152.4724° W.; near Kodiak, Alaska. This letter is to notify you that based on our review of the information provided by the KIB as well as information available to our office, we have \ determined your property may include wetlands and is in the vicinity of other waters of the U.S. The law requires that any individual or entity proposing certain structures or work, or discharges of dredged and/or fill material into waters of the U.S., including wetlands, must obtain a Department of the Army (DA) permit prior to conducting the work. If at anytime you decide that either of these activities is necessary, a DA permit may be required. Please be advised that land clearing operations involving vegetation removal with mechanized equipment such as front-end loaders, backhoes, or bulldozers with sheer blades, rakes, or discs in wetlands; or windrowing of vegetation, land leveling or other soil disturbances are considered placement of fill material under our jurisdiction. For regulatory purposes, the Corps of Engineers defines wetlands as those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Navigable waters of the U.S. are those waters subject to the ebb and flow of the tide shoreward to the mean high water mark, and/or other waters identified as navigable by the Alaska District. Nothing in this letter shall be construed as excusing you from compliance with other Federal, State, or local statutes, ordinances, or regulations that may affect this work. We appreciate your cooperation with the Corps of Engineers Regulatory Program. Please refer to file number POA-2005-1138-8 in all future correspondence or if you have any questions concerning this determination. -2- You may contact Ms. Michelle Nordhougen at (907) 753-2712, toll free within Alaska at (800) 478-2712, or by mail at the letterhead address, ATTN: CEPOA- CO-R-E. For additional information about our Regulatory Program, visit our web site at www'poa.usaoo.azmy.miI/zeg, Sincerely, Steve Meyers Team Leader, East Section Enclosures Mr. Wayne Sargent PO Box 8928 Kodiak, AK 9961 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 August 18, 2005 Re: Case 05 -009. Request for a variance, in accordance with KIBC 17.66, to permit the creation of four (4) lots by subdivision with less than five (5) acres of lot area that is not subject to tidal action below the mean high tide, per KIBC 16.40.040.A.2, KIBC 16.40.050.B.1, and KIBC. 17.13.050.A., located at Kalsin Bay Estates, Lot 3, and zoned for C — Conservation. Dear Mr. Sargent: The Kodiak Island Borough Planning and Zoning Commission at their meeting on July 20, 2005 granted the variance request cited above, and the Alternative Findings of Facts were approved at the August 17, 2005 meeting: THIS APPROVAL DOES NOT ALLOW ANY CONSTRUCTION TO BEGIN. Zoning compliance and/or a building permit must first be obtained. Failure to utilize an approved variance within twelve (12) months after its effective date shall cause its cancellation. Please contact this office for further details. An appeal of this decision may be initiated by; 1) the applicant, or 2) any person who was sent a written notice or submitted timely written comments or gave oral testimony at the public hearing before the Commission, by filing a written notice of appeal with the Borough Clerk within ten (10) working days of the date of the Commission's decision. The notice of appeal must state the specific grounds for the appeal and the relief sought by the appellant, and be accompanied by the appropriate appeal fee. Therefore, the Commission's decision will not be final and effective until ten (10) working days following the decision. This letter shall constitute the variance. Please bring it when you come to our office to obtain zoning compliance for any construction on the property. The Commission adopted the following findings of fact in support of their decision: FINDINGS OF FACT 17.66.050 A.1.Exceptional physical circumstances or conditions applicable to the property or intended use of development, which generally do not apply to other properties in the same land use district. Page 1 of 3 The exceptional physical circumstance appears to be the lot area subject to tidal action that is the subject of this request. It should be noted that this exceptional circumstance does not affect all of the lots proposed in the subdivision; however it does pertain to proposed Lots 3C through 3F as indicated. 17.66.050 A.2.Strict application of the zoning ordinances would result in practical difficulties or unnecessary hardships. The petitioner is indicating through this request that the strict application of the zoning ordinance (and by implication subdivision ordinance) will result in practical difficulties or unnecessary hardships. The result of the applicable zoning and subdivision code provisions is to disallow substantial land area subject to tidal action from being considered as part of the proposed subdivision. If relief cannot be obtained by variance, the subdivider will have to reduce the number of lots in the subdivision from the requested seven (7) lots down to about four (4) lots, or redesign the subdivision substantially to share the burden of the tidally influenced land more equally among the proposed lots. The minimum lot area standards of the KIB zoning code are minimum standard to regulate overall density. Given the significant amount of naturally encumbered area within this larger lot, the overall impact to density is minimal. Providing a set number of potential lots through this variance does not imply that the subdivision layout and design is approved as part of this variance request. The minimum allowable lot size should be whatever the Commission determines is necessary to develop a "reasonable" use of the land. In the C-Conservation zoning district, this means a lot that is reasonably suitable for the development of the uses and structures permitted in the zone with consideration given to the natural constraints on this particular piece of property. 17.66.050 A.3.The granting of the variance will not result in material damages or prejudice to other properties in the vicinity nor be detrimental to the public's health, safety and welfare. It is unlikely that granting the variance in this case will result in material damages or prejudice to other properties in the vicinity. Granting relief in this case should not result in additional variances being required because the minimal acreage designated on proposed Lots 3C through 3F may not be adequate to support many permitted uses and structures after the required zoning setbacks are computed for each lot. 17.66.050 A.4.The granting of the variance will not be contrary to the objectives of the Comprehensive Plan. The comprehensive plan does not address the development density in this area, so granting the variance will have no affect on the objectives of the Kodiak Island Borough Comprehensive Plan. 17.66.050 A.5.That actions of the applicant did not cause special conditions or financial hardship from which relief is being sought by the variance. Page 2 of 3 In this case, the petitioner has not created special conditions or financial hardship. The fact that the petitioner is required to go through this variance procedure first, before being allowed to subdivide the property, will ensure that such special conditions or financial hardships that might befall the petitioner, or subsequent owners of property in the proposed subdivision, may be avoided. 17.66.050 A.6.That the granting of the variance will not permit a prohibited land use in the district involved. It does not appear that the granting of the requested variance will permit a prohibited land use in the C-Conservation zoning district. Quite the contrary, it appears that granting the variance may result in artificially constraining certain permitted and conditional uses from being developed on proposed Lots 3C through 3F. If you have any questions about the action of the Commission, please contact the Community Development Department at 486-9363. Sincerely, 'Ar-leAc2,0< 5),y-,n(5k) Sheila Smith, Secretary Community Development Department CC: Grant Shields Page 3 of 3 Granting the variance to permit a 6.5 encroachment into the required 25-foot front yard setback would not be detrimental to the public's health, safety and welfare. The proposed construction will be accomplished with appropriate oversight from agency inspectors in accordance with applicable building codes. Granting the variance would not prejudice other properties in the R-2 Two Family Residential Zoning District as minimum setbacks will be met. 17.66.050 A.4.The granting of the variance will not be contrary to the objectives of the Comprehensive Plan. The Comprehensive Plan is a general policy guide, which does not address site- specific standards such as setbacks. 17.66.050 A.5.That actions of the applicant did not cause special conditions or financial hardship from which relief is being sought by the variance. The intent of the KM variance standards, and the applicable Alaska Statutes which form their basis, is to require the adjudication of variance requests before the property owner undertakes construction activity and significant investments. In this case, the actions of the applicant substantially relied upon the administrative guidance provided by staff prior to undertaking initial construction. 17.66.050 A.6.That the granting of the variance will not permit a prohibited land use in the district involved. The granting of the variance will not permit a prohibited land use in the R-2 Two Family Residential Zoning District. The question was called, and CARRIED 5-0. VII. OLD BUSINESS A) Case 05-009. Variance. Adopt Findings of Facts. COMMISSIONER McMURRY MOVED TO ADOPT the alternate Findings of Facts for Case 05-009.COMMISSIONER JANZ SECONDED the motion, and it CARRIED 5-0. FINDINGS OF FACT 17.66.050 A.1.Exceptional physical circumstances or conditions applicable to the property or intended use of development. which generaily do not apply to other properties in the same land use district. The exceptional physical circumstance appears to be the lot area subject to tidal action that is the subject of this request. It should be noted that this exceptional circumstance does not affect all of the lots proposed in the subdivision; however it does pertain to proposed Lots 3C through 3F as indicated. P & Z Special Meeting Minutes: August 17, 2005 Page 5 of 7 17.66.050 A.2.Strict application of the zoning ordinances would result in practical difficulties or unnecessary hardships. The petitioner is indicating through this request that the strict application of .the zoning ordinance (and by implication subdivision ordinance) will result in practical difficulties or unnecessary hardships. The result of the applicable zoning and subdivision code provisions is to disallow substantial land area subject to tidal action from being considered as part of the proposed subdivision. If relief cannot be obtained by variance, the subdivider will have to reduce the number of lots in the subdivision from the requested seven (7) lots down to about four (4) lots, or redesign the subdivision substantially to share the burden of the tidally influenced land more equally among the proposed lots. The minimum lot area standards of the KIB zoning code are minimum standard to regulate overall density. Given the significant amount of naturally encumbered area within this larger lot, the overall impact to density is minimal. Providing a set number of potential lots through this variance does not imply that the subdivision layout and design is approved as part of this variance request. The minimum allowable lot size should be whatever the Commission determines is necessary to develop a "reasonable" use of the land. In the C- Conservation zoning district, this means a lot that is reasonably suitable for the development of the uses and structures permitted in the zone with consideration given to the natural constraints on this particular piece of property. 17.66.050 A.3.The granting of the variance will not result in material damages or prejudice to other properties in the vicinity nor be detrimental to the public's health, safety and welfare. It is unlikely that granting the variance in this case will result in material damages or prejudice to other properties in the vicinity. Granting relief in this case should not result in additional variances being required because the minimal acreage designated on proposed Lots 3C through 3F may not be adequate to support many permitted uses and structures after the required zoning setbacks are computed for each lot. 17.66.050 A.4.The granting of the variance will not be contrary to the objectives of the Comprehensive Plan. The comprehensive plan does not address the development density in this area, so granting the variance will have no affect on the objectives of the Kodiak Island Borough Comprehensive Plan. 17.66.050 A.5.That actions of the applicant did not cause special conditions or financial hardship from which relief is being sought by the variance. In this case, the petitioner has not created special conditions or financial hardship. The fact that the petitioner is required to go through this variance procedure first, P & Z Special Meeting Minutes: August 17, 2005 Page 6 of 7 before being allowed to subdivide the property, will ensure that such special conditions or financial hardships that might befall the petitioner, or subsequent owners of property in the proposed subdivision, may be avoided. 17.66.050 A.6.That the granting of the variance will not permit a prohibited land use in the district involved. It does not appear that the granting of the requested variance will permit a prohibited land use in the C-Conservation zoning district. Quite the contrary, it appears that granting the variance may result in artificially constraining certain permitted and conditional uses from being developed on proposed Lots 3C through 3F. VIII. NEW BUSINESS A. Introduction of the Capital Improvement Program Process for 2006 - 1010. VI. ADJOURNMENT CHAIR FRIEND ADJOURNED the special meeting at 7:50 p.m. KODIAK ISLAND BOROUGH PLANNING AND ZONING COMMISSION By: Jerrol Friend, Chair ATTEST By: Sheila Smith, Secretary Community Development Department DATE APPROVED: September 21, 2005 P & Z Special Meeting Minutes: August 17, 2005 Page 7 of 7 FINDINGS OF FACT 17.67.05 A. That the conditional use will preserve the value, spirit, character and integrity of the surrounding area. The operation of the camp is seasonal and temporary. Minimal impact is ensured, not only by the short-term nature of the operation, but also by the nature of the principal activity to engage in individual and group therapy activities. In this way the value, spirit, character and integrity of the surrounding area should be preserved. 17.67.05 B. That the conditional use fulfills all other requirements of this chapter pertaining to the conditional use in question. This proposed conditional use is consistent with both the intent of KIBC 17.67.010 requiring compatibility of the activity with the surrounding area, and also KIBC 17.13.010 addressing the description and intent of the C- Conservation zoning district, which provides for limited commercial land uses. It is also consistent with the special district regulations of the C- Conservation zoning district in KIBC 17.13.090 since impact on the natural environment is minimal and natural features will be preserved intact. 17.67.05 C. That granting the conditional use permit will not be harmful to the public health, safety, convenience and comfort. The granting of this conditional use permit will not be harmful to the public health, safety, convenience and comfort since there are essentially, no immediate neighbors or adjacent land uses. Measures have been taken to protect the health and safety of participants with the requirement that a potable water source and solid waste disposal system compliant with ADEC regulations is provided. 17.67.05 D. That sufficient setbacks, lot area, buffers or other safeguards are being provided to meet the conditions listed in subsections A through C of this section. Minimum lot area and setback requirements are satisfied. Natural buffering is provided by trees and topography. The Family Recovery Camp is seasonal and temporary, as well as remote, and the potential for conflicts with surrounding neighbors or adjacent land uses is minimal. The question was called, and CARRIED 6-0 by unanimous voice vote. B) Case 05-009. Request for a Variance, in accordance with KIBC 17.66, to permit the creation of lots by subdivision with less than five (5) acres of lot area that is not subject to tidal action below the mean high tide, per KIBC 16.40.040.A.2, P & Z Meeting Minutes: July 20, 2005 Page 3 of 11 KIBC 16.40.050.B.1, and KIBC 17.13.050.A., located at Kalsin Bay Estates, Lot 3, and zoned for C —Conservation. Staff indicated there were eleven (11) public hearing notices were distributed on June 22, 2005 with no written response returned. We have one (1) agency response from the Army Corp of Engineers and several correspondences from the petitioner and the petitioner's representative. In addition, there are a couple of photographs that were taken at approximately 3:00 pm of the property to give a visual assessment of the property as it sits. They were taken from the Kalsin Hill road, looking out from the guardrail. This request is related to a preliminary plat submittal to create seven lots from a large remainder tract from a previous subdivision. The Title 16 date of requirements indicates that for the purposes of zoning area calculations that we cannot consider lands lying below the mean high water line. For that reason we returned the plats to the petitioner at that time and advised them of the code requirement. They have since brought forward this Variance request to have the commission to review and evaluate the proposed subdivision in the context of the lot area issue. In terms of condition # one (1) staff did find the properties to be affected of the tide influence, but staff couldn't find all six (6) standards to be met. There were some concerns about the safety of developments that could be developed on the property, particularly at the front near the shoreline at Kalsin Bay. There maybe some concerns about the availability of getting water and sewer on the properties, although that hasn't been investigated, that would be part of the subdivision review process. There was concern that there might require follow on Variances for set back purposes to get structures on the highest portions of the properties near the front property line. The opinion of staff is that there are other conforming alternatives other than a Variance that could be investigated, and for that reason staff recommended denial of that request. Staff would be happy to answer any questions on the analysis. COMMISSIONER FRIEND inquired about the options that might be done other than the Variance. DUANE DVORAK replied that the wetland or tideland issue affects four (4) out of the seven (7) lots being proposed. Two (2) out of the seven (7) lots have ten (10) acres each, and it seems that if the lots were redesigned in such a way that three (3) or four (4) of the lots weren't carrying seventy-five (75) or eighty (80) percent of the wetlands, that if the wetlands could be divided up in such a way that each lot had five (5) acres of upland associated with them a different design may be conforming without the need for a Variance. I would grant that it may mean losing a lot or two from the design as proposed, but density is a subjective and discretionary thing that the sub-divider has control over, and the code guarantees people a reasonable use of their land. It doesn't always guarantee the highest and best use of the land or the most return on their land, but in my opinion, it would create a better subdivision to provide a better tideland to upland ratio. Without getting into specifics, I think that is what staff's position is about. COMMISSIONER CARVER inquired to what the tide was when the photographs were taken. P & Z Meeting Minutes: July 20, 2005 Page 4 of 11 DUANE DVORAK stated we didn't have a watch with us and we were held up by the traffic construction. We were trying to catch the afternoon tide, which was suppose to be a 6.2 at approximately 3:00 p.m. COMMISSIONER CARVER asked if there were any kind of easement access to the lots 3F, E, D, and C that's associated with this. DUANE DVORAK stated that the highway use to go along the head of Kalsin Bay before the 64' earthquake and tsunami. When they subdivided the previous phase there was some residual right of way which comes out and accesses the tidelands that still remains. The petitioners are proposing access along the tidelands along the front of the property, which is public and maybe highway, although this isn't a subdivision review. When we do get to the subdivision review we will circulate this to DOT and hopefully they can fihl us in on the status of this access, whether they believe this feasible or not. It's not developed as a roadway and I don't know if it meets any kind of access standard. This Variance is not about reviewing that or the feasibility of that, so we didn't get into it. COMMISSIONER KING MOVED TO GRANT a variance; in accordance with KIBC 17.66, to permit the creation of four (4) lots by subdivision with less than five (5) acres of lot area that is not subject to tidal action below the mean high tide, per KIBC 16.40.040.A.2, KIBC 16.40.050.B.1, and KIBC 17.13.050.A. COMMISSIONER McMURRY SECONDED the motion. Special session closed: Public hearing opened: Grant Shields, the broker for Alaska One Realty, is representing Kathy Dillard and Wayne Sargent. I think the most of the concerns or speculation in development is in regards to the wetlands, an actual usable area in the four (4) five (5) acre parcels that are ocean front. My purpose is to pass some information on of the intent of the owners at Alaska One Realty if the Variance is granted. First, the property was comprehensively surveyed by Stan Austerman with Horizon Survey into five (5) and ten (10) acre parcels. The parcels we will talk about tonight are the ocean front five (5) acre parcels. The owners would be marketing some of the parcels of the subdivision, but not all of them again the four (4) five (5) acre parcels. Myself, as the agent for the owners, would include in the marketing packets pertinent information on the wetlands and the correspondence from the Army Corp of Engineers, which I believe Duane has that correspondence. It is our feeling that the area of land that would be utilized for the actual structures, assuming somebody will want to put up structures up on the property if they purchased it, would cause little impact, if any, to the wetlands in the surrounding area. As a licensed real estate agent, I would handle the marketing of the proposal part of the proposed parcels that would be offered to the public responsibly with a comprehensive packet detailing the wetlands and correspondence from the Corp of Engineers in regarding to permit requirements in that type of thing if one should needed. As a real estate professional, it is notes there is a very high consumer demand for coastal land with little, if any to offer. That again is the reasoning for the five (5) acre ocean front parcels. I don't feel that subdividing P & Z Meeting Minutes: July 20, 2005 Page 5 of 11 into five (5) acre parcels would bring in more dollars, just offer more opportunity for interested purchasers in the affordability scenario. The subject parcels would be perk tested and investigated to see if they would meet well and septic criteria. But before spending more dollars on tests and footwork, the owners feel it would be imperative to have Variance approval as obviously they don't want to spend more money for a maybe. Bottom line is that the property will be subdivided responsibly with any potential buyer knowing what is allowable on the property. In this way, we would expect that the property would appreciate in value and also bring in additional tax revenues to Kodiak. Public hearing closed: Regular session opened: COMMISSIONER CARVER inquired where the building sites are on lots 3F, 3E, 3D, and 3C? COMMISSIONER FRIEND asked DUANE DVORAK when they come in with a subdivision request first. DUANE DVORAK stated that they did come in with a subdivision request first, staff rejected it because of the wetland issue. We .didn't feel the plat was conforming to the subdivision standards on its face because of the wetlands and that was in a pre- review status. We returned it to the petitioners immediately when we discerned there was a problem. Realistically, we advised them to one of the alternatives to try to resolve this was to request a Variance. They are following staffs recommendation. In addition, while this is the preliminary plat, but I think they may have added some additional information.regarding the potential building sites if you look at the frontage along Kalsin Bay you'll see some lot areas indicated there between the dash line and the front property line. Starting with 3C, I believe it's 44,000 sq. ft., 43,000 sq. ft. on 3D, 50,000 sq. ft on 3E, and 66,000 sq. ft on the front and you'll also notice there's also 60 something thousand sq. ft in the back. 3F is a little different because it has frontage both on the beach, as well as this private drive that is proposed that will loop around the back. But when staff was looking at this, on the first page you'll see that staff estimated the overall acreages of each lot, and then estimated how much wasn't subject to tidal action. These figures came off this map, and we utilized this additional information to come up with these estimates. COMMISSIONER CARVER asked if these building sites are all on this berm that faces the ocean? DUANE DVORAK stated that this is the assumption. COMMISSIONER CARVER asked if DUANE DVORAK knew how much that burm has retreated since 1964? DUANE DVORAK stated that staff does not know that. COMMISSIONER CARVER stated that the highway easement, the landward margin is shown there and the old highway would be out somewhere on the P & Z Meeting Minutes: July 20, 2005 Page 6 of 11 beach -face right now. Does that bar ever get washed over with waves during large storms and storm surges? DUANE DVORAK stated that staff doesn't have that information, but I think there is a concern, in the Coastal Management Plan it indicates any property within 30 ft.of mean high water may be at risk of Tsunami, if not storm search. The highest contour, which roughly approximates the front property line along the Kalsin Bay side is 15 ft. as indicated on the plat. COMMISSIONER CARVER stated that he thinks there is cause to want to understand two issues: One is the coastal erosion rate at that site because the useful property is part of those lots that's directly subject to erosion. Second, is whether those are sites that are above storm wave effects. It makes no sense to create a lot, which is in a natural hazard zone and eroding so that the only buildable part of it is the part that is going to be eroded. COMMISSIONER McMURRY stated we aren't really approving building lots, all we are doing is approving the creation of the lots. If they are going to build on them then they have to come back, right. COMMISSIONER FRIEND asked how these lots compare to the Pasagshak lots and property? DUANE DVORAK stated that he doesn't think there is a direct comparison here in terms of zoning because those lots were zoned RR -1 and so the lot sizes are quite a bit different. That particular subdivision, the plat notes that talk about the lot lines change as the river and shoreline changes. That was a more recent subdivision. Subdivisions that were pre earthquake and tidal wave the boundaries generally were fixed and don't move along with the movement of the beaches and shoreline. There maybe some differences both in the subdivision aspects and the zoning aspects. I encourage the commission of not necessarily getting into subdivision issues The Variance is really about whether or not if they can count the tidally influences areas in the inside of the subdivision as part of the lot area. Your really not creating lots here tonight, you are dealing with just this Variance. Whether or not they can count these tidal areas as part of the five (5) acre lot area. Otherwise, the way the code currently reads, they will only get credit for the square footages that are noted on the frontage of these lots, which is approximately acre, an acre and a half for the three lots. The fourth lot has a little more area in the back. COMMISSIONER FRIEND inquired if we approve this they will still have to come back before us for the subdivision, which we can then regulate the buildable areas and look at that at that time. DUANE DVORAK stated I think with the subdivision process this will get sent out again to the review agencies and presumably we would have more feedback regarding the history of the DOT right of way and that type of thing. We would have these agencies giving us more thorough review and we would be looking at all these other aspects, whereas in this case while I think staff indicated that Title 16 and Title 17 have to work hand in hand because Title 16 is what kicked this back as a Variance, but at the same time the Variance standards and the request P & Z Meeting Minutes: July 20, 2005 Page 7 of 11 that is before you is very narrowly construed as to what you are deciding here this evening and doesn't get into some areas that were being discussed. I think there were some issues that staff brought up that may or may not bring problems down the road, but I wouldn't go into that too deeply. It's not a subdivision review. COMMISSIONER WATKINS stated he wished the percentages were tilted the other way as far as the wetlands and uplands go. COMMISSIONER McMURRY stated that I wouldn't approve it the way it is. COMMISSIONER CARVER stated that I don't see any reason to get them into something that's going to be harder later on. They might create those lots, but they might have a lot of trouble building on them later on. COM1VIISSIONER FRIEND stated that we are not creating lots. We still have that to come back in the subdivision that we can set a buildable area. MARY OGLE stated that if you approve this Variance you are setting the stage for them to come up with a subdivision with the understanding that subdivision approval is less discretionary than a Variance. COMMISSIONER FRIEND said it allows us to use more at a later day. If we want to use part of that we aren't limited to the five (5) acre buildable area. If these guys come in with a large enough area that is buildable we wouldn't be able to let them do it without this Variance. COMMISSIONER CARVER stated another five acres doesn't bother me, but the way they are presently construed. COMMISSIONER FRIEND stated he doesn't mind them using part of the tidal land but I don't see this layout working. MARY OGLE asked DUANE DVORAK because it is a Variance procedure could the commission grant part of a Variance, set criteria on the Variance saying it's not a Variance from not counting any of the five (5) acres towards minimum lot size, could they make the Variance approval contingent upon each lot would have to have at least two, two and a half acres. A partial Variance. DUANE DVORAK stated it is a possibility that you can grant them less than what they have requested. What they have requested is what is shown on this map. Basically, the square footages along the frontage there for the three lots, then the front and back for lot 3F. That is the request as staff understands it and that is what we diagramed or spelled out on the front page of the staff report as far as the net usable area. If you were to set a net usable area more than what they've indicated here it would mean they would have to go back to the drawing boards to redesign the subdivision but it would give them partial relief from what they have requested. In addition, if you put on conditions that would specify building locations had to be a certain distance away from the shoreline if there's an erosion concern, you might also include some guidance like that. But that gets into the subdivision realm and this is going to come back as a subdivision, and I think it could be addressed more appropriately in the subdivision process. P & Z Meeting Minutes: July 20, 2005 Page 8 of 11 MARY OGLE stated that she just wanted to give them some of the legal options for your comfort level, a level of predictability for the next stage if they come back. COMMISSIONER FRIEND asked if they would have to re-adopt findings if they granted this request. MARY OGLE stated yes they would. The question was called on the main motion, and CARRIED 6-0 by unanimous voice vote. COMMISSIONER McMURRY MOVED TO DEFER adopting the findings of fact until the next regular meeting.COMMISSIONER WATKINS SECONDED the motion. COMMISSIONER CARVER said he would like to see some info nation about the history of retreat of that coastline before we follow through with the decision about findings of fact. Can staff research that and tell us what that coastline has done since 1969? DUANE DVORAK stated they can try. The question was called and CARRIED 6-0 by unanimous voice vote. VII. OLD BUSINESS A) Case S02-009. Extension Request — A request to extend the preliminary approval for Case S02-009 until December 23, 2005. Staff indicated that the plat involved here was intended to correct some violations of zoning. The plat itself is in the final form has been granted final approval, but there were some building improvements that were also included that preliminary approval and some compliance deadlines set for those buildings to be brought into conformity and certificates of occupancy issued. The petitioner has suffered from an illness according to their submittal, and they have requested an extension of the compliance deadline that was spelled out in the conditions of the preliminary approval, so they are really requesting an extension of the compliance deadline. Staff has recommended the commission grant the extension until November 18, 2005 and has provided a motion and a condition of approval. COMMISSIONER CARVER MOTIONED TO APPROVE an amendment of preliminary plat approval for Case S02-009, to extend the compliance date set forth in Conditions of Approval #2 until November 18, 2005. The motion was SECONDED by COMMISSIONER McMURRY, and CARRIED by unanimous voice vote. B) Mobile Home Park Proposed Code Revisions. DUANE DVORAK. stated that they have a memorandum before you, a cover memo for this case that was referred to the Commission by the Borough Assembly based upon recent appeals of the mobile home park code and permitting decisions made by staff based upon the code as it is and the commission looked at this with the idea of reducing or elimination non conformities in the mobile home park code and making the code a little more development friendly and yet encouraging P & Z Meeting Minutes: July 20, 2005 Page 9 of 11 "The 1 Who Cares!" 1227 Mill Bay Road Kodiak, AK 99615 (907) 486 4663 phone (907) 486 5674 fax alaskahomes@gci.net www.AlaskalRealty.com 07/18/2005 To: K.I.B. From: Alaska 1 Realty Subj: Dept. of the Army(letter) To Whom It May Concern: Thank you for forwarding the letter from the Dept. of the Army. Should a variance be granted for the subject property, as the agent of the property owners I would make sure that this information is made available to interested parties. The intent of the property owners and Alaska 1 Realty is that the development of the subject property would be handled with the utmost care and with the preservation of the wetlands in focus. Sincere t S *e roker Alaska 1 Realty 11\134NRIVd301111111d013A30 AIINCIRA100 g00? 8 1 inr Copies Furnished: Kodiak Island Borough Community Development Department Kodiak Island Borough 710 Mill Bay Road Room 205 Kodiak, Alaska 99615 Grant Shields 1227 Mill Bay Road Kodiak, Alaska 99615 1N3Vtl1nc130 IN3NdOlD30 AIINMAJOO ' SOO?. 8 I. TIC 4 fl REPLY TO ATTENTION OF: Regulatory Branch East Section POA-2005-1138-8 (Th DEPARTMENT OF THE ARMY U.S. ARMY ENGINEER DISTRICT, ALASKA P.O. BOX 6898 ELMENDORF AFB, ALASKA 99506-0898 JUL 1 5 2005 Wayne Sargent Post Office Box 8928 Kodiak, Alaska 99615-8928 Dear Mr. Sargent: Willi/dal IN31A1d013A30 AIINI1VVIA100 We have received notification from the Kodiak Island Borough (KIB) of your request for a proposed variance to develop a subdivision. This project is located within sections 3 and 10, T. 30 S., R. 20 W., Seward Meridian; Latitude 57.5982° N., Longitude 152.4724° W.; near Kodiak, Alaska. This letter is to notify you that based on our review of the information provided by the KIB as well as information available to our office, we have determined your property may include wetlands and is in the vicinity of other waters of the U.S. The law requires that any individual or entity proposing certain structures or work, or discharges of dredged and/or fill material into waters of the U.S., including wetlands, must obtain a Department of the Army (DA) permit prior to conducting the work. If at anytime you decide that either of these activities is necessary, a DA permit may be required. Please be advised that land clearing operations involving vegetation removal with mechanized equipment such as front-end loaders, backhoes, or bulldozers with sheer blades, rakes, or discs in wetlands; or windrowing of vegetation, land leveling or other soil disturbances are considered placement of fill material under our jurisdiction. For regulatory purposes, the Corps of Engineers defines wetlands as those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Navigable waters of the U.S. are those waters subject to the ebb and flow of the tide shoreward to the mean high water mark, and/or other waters identified as navigable by the Alaska District. Nothing in this letter shall be construed as excusing you from compliance with other Federal, State, or local statutes, ordinances, or regulations that may affect this work. We appreciate your cooperation with the Corps of Engineers Regulatory Program. Please refer to file number POA-2005-1138-8 in all future correspondence or if you have any questions concerning this determination. -2- You may contact Ma. Michelle Nordhougen at (907) 753-2712, toll free within Alaska at (800) 478-2712, or by mail at the letterhead address, AzT0, CEPOA- CO-R-E. For additional information about our Regulatory Program, visit our web site at www.poa.usace.army.mil/reg. Sincerely, Steve Meyers Team Leader, East Section Enclosures 10 f -1 -CUUJ 1 f : `t`F July 15, 2005 UILLHKUb LHUNUKT 171a (4=C-390 t'Hlat: '1 To: Kodiak Island Borough Assembly From: Kathy Sargent Dillard RE: Variance COMMUNITY DEVELOPMENT DEPARTMENT Please accept my apologies for not being able to attend your meeting tonight in person, Since it is the middle of summer, I am sure you can appreciate Kodiak people frequently have plans. I have not had a day off since August 2004 and have been planning 3 days off island July 20 -22, 2005, Since this meeting has been cancelled from last week, there is no way T can change my existing plans to attend tonight. As you know, we wish to sell 20 acres of our property at Kalsin Bay, beachfront parcels. Our family has lived on the 80 acres and operated a seasonal business there since 1971, AK Cab Co. and Dillard's Laundry in town are two. businesses I own, Both my business and the family business at Kalsin are seasonal. All have been negatively affected and directly impacted by the declining fishing revenues and cost of fuel increases. Our customers are the tourist, the transient, and the fishermen. Business from the local Kodiak population cannot sustain them year round. Our Father lived long enough to see the power poles installed to bring us electricity before he passed away in February of 1986. Until then our status was much more remote operating on diesel generators and no phones. Our Mother retired September 2001 at age 74. My Brother Wayne and myself are the sole owners. We need to sell property to obtain capital needed to make improvements to our existing businesses, which are our sole livelihood. If we are unable to sell a portion of the property that has been in our family for 34 years this will cause a tremendous financial hardship and places our business and only livelihood in great jeopardy. We are already experiencing financial hardships. The process to sell the property has taken far longer than we were quoted and expected by all the estimates of the experts in this complex business, We are well aware of the wetlands involved in the sale. We can assure you, in 34 years as property owners we have abided by the rules set forth regarding wetlands. We ourselves have been fierce protectors of those wetlands and will continue to do so. The people interested in buying our property are also aware of the conditions of the protected status of the wetlands. When we made the decision to sell and subdivide our property almost 2 years ago we inquired with all the proper offices on the best route to take and were told 5 acre parcels would be the best way to subdivide. Stan Austerman has done this work. Mr. Austennan can testify that the configuration of the parcels provides more than enough existing operable land for owners to build as needed without making any impact to the wetlands. We are asking the Borough grant us this variance and allow us to sell us our property. In doing s4, this will add to the communities' development and bring new revenues to the Borough as well. Thank you for your prompt attention and consideration of this critical issue for our family. 07 -15 -2005 16:48 ALASKA1REALTY 9074865674 PAGE1 "The 1 Who Cares!" 1227 Mill Bay Road Kodiak, AK 99615 (907) 486 4663 phone (907) 486 5674 fax alaskahomes©gci.net www.AlaskalRealty.com 04/27/2005 To: Community Development From: Wayne Sargent, Kathy Dillard Alaska 1 Realty/Grant Shields To Whom It May Concern: c::-.7--------5—,,---------,=7,-" -I t i b V] i ! i i DEVELOPMENT DEPARTMENT We are applying for a variance regarding the subject property (attached). We feel that the variance should be considered for these prospective parcels to be developed. The issue being that if the parcels were to be subdivided that there would not be enough land use available per conservation requirements because of the wetlands that make up a large part of the property. However we feel and have always felt that the wetlands are an integral part of this unique property that we own and would disclose to any potential future property owner the regulations regarding wet lands. We are requesting the variance so that we may be permitted to sub divide the property into 5 acre parcels (see proposed plat). We feel that for this variance to be denied we would not be able to achieve the right to prosper from this land that has been in our family for thirty years. Upon the initial plat proposal by Stan Austerman with Horizon survey it was apparent that building sites could easily be structured on the 5 acre parcels with no disturbance to the wetlands. We respectively request that the variance be allowed so that we may move forward with applying for preliminary plat approval Thank you for your consideration on this most urgent matter. Sincerely, Kathy Dillard, Wayne Sargent Grant Shields/Broker Alaska 1 Realty KODIAK ISLAND BOROUGH - COMMUNITY DEVELOPMENTDE <P RT�M N �}� 710 Mill Bay Rd., Roan 205, KODIAK, AK 99615 -6398 (907) 486 -9363 - FAX (907),_,4,6g 939 V } ii'�6 � 1 8 2005 Info rm it on Property ID Number's wvvw.kib.co.koclak.ak.us Applicant Information fa S Property owner's name Property owner's s mailing address ieo X14 ,4/Z /9g, 5 City State Zip 4/ffl-36c /o ,54-534 Hcme phcne Work Phone E- mail .Addr. Agents name (If applicable) n agLA /47 S (Ai kk Agents mailing address 1)- ;--i -- v \ \ \ 'i7 41 12 9 City State Zip D Z.A /c-- Iq- IL 9 9 l S" Work Phone E -mail Addr. Hone phcne (.a., Iz- a 644,4 t S rJ C c' , ,OMfY11JNITY DEVELOPMENT DEPa RTMEd T „ Legal Description Current Zoning: C FV Applicable Comprehensive Plan: sr e--- P!A fi - Year of Plan adoption: Present Use of Property. U'iAc.w-w'C L v u° Ciu Proposed Use of Property. .S Li 3 D i U 6tL OAT- (Note: Use additional sheets, if needed, to provide a complete description of the proposed request) Applicant Certification 1 hereby certify as the property owner /authorized agent that this application for Planning and Zoning Commission review is true and complete to the best of my knowledge and that it is submitted in accordance with the requirements of the applicable Kodiak Island Borough Code, which includes a detailed site plan for variance and conditional use requests and which may include optional supporting documentation as indicated below. Additional Narrative/History As -built Survey Photographs Maps 170ther .3- 1 ©5 .IL L J0 Date Au' Date 1A development plan for one or more Tots on which is shown the existing; a d proposed conditions of the lot including topography, vegetation, drainage, flood plains, wetlands, and waterways; landscapin i and open spaces; walkways; means of Ingress and egress; circulation; utility services; structures and buildings; signs and lighting; berms, buffers, and screening devices; surrounding development and any other information that reasonably may be required In order that an informed decision can be made by the approving authority. (Source: The New Illustrated Book of Development Definitions, ©1993 by Rutgers University) zed Agent's ignature The application fee for items covered by this form is $250.00, except as otherwise noted. STAFF USE ONLY Code Section(s) Involved: Variance (KIBC 17.66.020) Ca- rational Use Permit(KIBC 17.67.020.B) Other (appearance requests, site plan review, etc.) $75.00 Zoning change from to (KIBC 17.72.030 and 030.C) Application received by: Staff signature PAYMENT VERIFICATION 03- 18-2005 17:14 ALASKA1RERLTY 9074865674 PAGE K6..„-AAK ISLAND BOROUL2 COMMUNITY DEVELOPMENT DEPARTMENT 710 Mill Bay Road, Kodiak, Alaska 99615 Public Hearing Item VI-B PUBLIC HEARING NOTICE A public hearing will be held on Wednesday, July 20, 2005. The meeting will begin at 7:30 p.m in the Borough Assembly Chambers, 710 Mill Bay Road, Kodiak, Alaska, before the Kodiak Island Borough Planning and Zoning Commission, to hear comments if any, on the following request: CASE: 05-009 APPLICANT: Wayne Sargent AGENT: Grant Shields REQUEST: A request for a Variance, in accordance with KIBC 17.66, to permit the-creation of-lots by subdivision-with less-than-five (5)-acres of-lot --- area that is not subject to tidal action below the mean high tide, per KIBC 16.40.040.A.2, KIBC 16.40.050.B.1, and KIBC 17.13.050.A. LOCATION: Kalsin Bay Estates, Lot 3 ZONING: C-Conservation This notice is being sent to you because our records indicate you are a property, owner/interested party in the area of the request. If you-do not wish-to testify verbally, you may provide your comments in the space below, or in a letter to the Community Development Department prior to the meeting. If you would like to fax your comments to us, our fax number is: (907) 486-9396. If you would like to testify via telephone, please call in your comments during the appropriate public hearing section of the meeting. The local call-in telephone number is 486-3231. The toll free telephone number is 1-800-478-5736. One week prior to the regular meeting, on Wednesday, July 13, 2005, a work session will be held at 7:30 p.m. in the Kodiak Island Borough Conference Room (#121), to review the packet material for the case. Kodiak Island Borough Code provides you with specific appeal rights if you disagree with the Commission's decision on this request. If you have any questions about the request or your appeal rights, please feel free to call us at 486-9363. Your Name: Mailing Address: Your property description: Comments: 0 OFIJECTION$_____________________ ALA ,./, CIM 1UNICATIONS SYSTEMS a••• By. AFII.,....wro DATE: .. , Wayne Sargent PO Box 8928 Kodiak, AK 99615 Kodiak Island Borough Community Development Department 710 Mill Bay Road Room 205 Kodiak, Alaska 99615 Phone (907) 486-9363 Fax (907) 486-9396 www.kib.co.kodiak.ak.us June 22, 2005 Re: Case 05-009. A request for a Variance, in accordance with KIBC 17.66, to permit the creation of lots by subdivision with less than five (5) acres of lot area that is not subject to tidal action below the mean high tide, per KIBC 16.40.040.A.2, KIBC 16.40.050.B.1, and KIBC 17.13.050.A. Dear Mr. Sargent: Please be advised that the Kodiak Island Borough Planning and Zoning Commission has scheduled the case referenced above for Public Hearing at their July 20, 2005 regular meeting. This meeting will begin at 7:30 p.m. in the Assembly Chambers, 71.0 Mill Bay Road, Kodiak, Alaska. Attendance at this meeting is not mandatory but recommended. One week prior to the regular meeting, on Wednesday, July 13, 2005 at 7:30 p.m. in the Borough Conference Room (#121), the Commission will hold a packet review work session for the purpose of reviewing packet materials and staff summaries of cases scheduled for the regular meeting. The public is welcome to attend the packet review work session; however, the work session is not for the purpose of receiving public testimony. Applicants who wish to present testimony and/or evidence related to their case should appear at the Public Hearing during the Regular Meeting and present such information in person. Please contact the Community Development Department at 486-9363 if we can answer any outstanding questions or provide additional information. In advance, thank you for your cooperation. Sincerely, eS20% Sheila Smith, Secretary Community Development Department K6' IAK ISLAND BOROU" J COMMUNITY DEVELOPMENT DEPARTMENT ' 710 Mill Bay Road, Kodiak, Alaska 99615 Public Hearing. Item VI -B PUBLIC HE RING NOTICE A public hearing will be held on Wednesday, July 20, 2005. The meeting will begin at 7:30 p.m: in the Borough Assembly Chambers, 710 Mill Bay Road, Kodiak, Alaska, before the Kodiak Island Borough Planning and Zoning Commission, to hear comments if any, on the following request: CASE: 05 -009 APPLICANT: Wayne Sargent AGENT: Grant Shields REQUEST: A request for a Variance, in accordance with KIBC 17.66, to permit the creation of lots by subdivision with less than five (5) acres of lot area that is not subject to tidal action below the mean high tide, per KIBC 16.40.040.A.2, KIBC 16.40.050.B.1, and KIBC 17.13.050.A. LOCATION: Kalsin Bay Estates, Lot 3 ZONING: C- Conservation This notice is being sent to you because our records indicate you are a property owner /interested party in the area of the request. If you do not wish to testify verbally, you may provide your comments in the space below, or in a letter to the Community Development Department prior to the meeting. If you would like to fax your comments to us, our fax number is: (907).486 -9396. If you would like to testify via telephone, please call in your comments during the appropriate public hearing section of the meeting. The local call -in telephone number is 486 -3231. The toll free telephone number is 1- 800 -478 -5736. One week prior to the regular meeting, on Wednesday, July 13, 2005, a work session will be held at 7:30 p.m. in the Kodiak Island Borough Conference Room ( #121), to review the packet material for the case. Kodiak Island Borough Code provides you with specific appeal rights if you disagree with the Commission's decision on this request. If you have any questions about the request or your appeal rights, please feel free to call us at 486 -9363. Your Name: Mailing Address: Your property description: Comments: ed -Z2: 05 l P H `R oenn' Case No, 0 009 P & Z Re lqrkleeting June 15 2005 SS 2878 Attn: Bill Reith State of Alaska Dept. of Environmental Conservation 555 Cordova St. Anchorage, AK 99501 Roark LLC PO Box 8095 Kodiak, AK 99615 Bruce Talbot ADNR Div. of Mining, Land, & Water 550 .W 7th Ave Ste 1050 Anchorage, AK 99501-3579 KIB Engineering & Facilities J: Wayne Dolezal ADF&G Habitat Div. 333 Raspberry Road Anchorage, AK 99518 ‘,/ 05-00g Roy & Lita Ecklund PO Box 146 Kodiak, AK 99615 Jan Stuart Army Corp of Engineers PO Box 6898 Elmendorf AFB, AK 99506-6898 _ Lesnoi, Inc. 3055-127 Red Mountain Mesa, AZ 85207 Pat Hutson ACS Southwest Division 151 Warehouse Drive Soldotna AK 9969-7930 James Devlin, P.E. Kodiak Electric Association PO Box 787 Kodiak AK 99615 Edward W. Weiss, Habitat Biologist Office of Habitat Mgmt & Permitting Alaska Dept. of Natural Resources 550 W. 7th Ave. Suite 1420 Anchorage, AK 99501 Womens Bay Community Council 538 Sargent Creek Road Kodiak, AK 99615 BLACK CANYON SUBDIVISION ISTHMUS ° ISLAND Pat Hutson ACS Southwest Division 151 Warehouse Drive Soldotna, AK 9969-7930 btate or Alaska Dept. of Transportation & PF Planning Section PO Box 196900 Anchorage AK99519-6900 KIB Engineering & Facilities Chris Lynch, Chair Womens Bay Service Area Board 11175 Lake Orbin Dr. Kodiak, AK 99615 State of Alaska Dept. of Environmental Conservation 555 Cordova St. Anchorage AK 99501 Bruce Talbot ADNR Div. of Mining, Land, & Water 550 W 7th Ave Ste 1050 Anr.hnraae AK 99501-1579 James Devlin, P.E. Kodiak Electric Association PO Box 787 Kodiak, AK 99615 Jan Stuart Army Corp of Engineers PO Box 6898 Elmendorf AFB, AK 99506-6898 GCI Cable, Inc. 2011 Mill Bay Rd. Kodiak, AK 99615 Pam Forman KIB Parks and Recreation Committee 1637 Three Sisters Way Kodiak, AK 99615 Lesnoi, Inc. 424 Marine Way, Suite 206 Kodiak, AK 99615 MEMORANDUM DATE: June 6, 2005 TO: Planning and Zoning Commission FROM: Community Development Department SUBJECT: Information for the June 15, 2005 Regular Meeting CASE: 05-009 APPLICANT: Wayne Sargent AGENT: Grant Shields REQUEST: A variance, in accordance with KIBC 17.66, to permit the creation of lots by subdivision with less than five(5) acres of lot area that is not subject to tidal action below the mean high tide, per KIBC 16.40.040.A.2, KIBC 16.40.050.B.1, and KIBC 17.13.050.A. LOCATION: Kalsin Bay Estates, Lot 3 ZONING: C-Conservation Eleven (11) public hearing notices were distributed on May 27, 2005. Date of site visit: No Site Visit Made 1. Zoning History: The site is not located in an area covered by the 1968 Kodiak Island Borough Comprehensive Plan. All areas of the borough not previously zoned were zoned C-Conservation by Ordinance No. 77-15.0. 2. Lot Size: Lot 3 Proposed. Lot 3A Proposed Lot 3B Proposed Lot 3C Proposed Lot 3D Proposed Lot 3E Proposed Lot 3F Proposed Lot 3G Case 05-009/Staff Report 47.46 acres total 10.46 acres overall, about 10.00 acres not subject to tidal action 5.00 acres overall, about 5.00 acres not subject to tidal action 6.06 acres overall, about 1.01 acres not subject to tidal action 5.11 acres overall, about 1.12 acres not subject to tidal action 5.00 acres overall, about 1.15 acres not subject to tidal action 5.00 acres overall, about 2.89 acres not subject to tidal action 10.83 acres overall, about 9.33 acres not subject to tidal action Page 1 of 8 P & Z: June 15, 2005 4. Existing Land Use: Vacant 5. Surrounding Land Use and Zoning: North: Lots 1 and 2, Kalsin Bay Estates Use: Lot 1, Single-family Residential, Lot 2, Eating & Drinking Est. Zoning: Lot 1, C-Conservation; Lot 2, Rural Neighborhood Commercial South: Unsurveyed Area Use: Vacant/Grazing Zoning: C-Conservation East: Kalsin Bay Use: Tidelands Zoning: No Zoning West: Lot 1A, Use: Zoning: C-Conservation 6. Comprehensive Plan: 7. Applicable Regulations: The site is not located in an area covered by the 1968 Kodiak Island Borough Comprehensive Plan. The following sections of Title 17 (Zoning) of the Borough Code and the Kodiak Island Borough Coastal Management Program are applicable to this request: COASTAL MANAGEMENT APPLICABLE POLICIES Residential Development 1. Location In areas with poorly draining soils, development where feasible shall be connected to a sewer line. Where this is not feasible, onsite facilities shall be designed so as not to cause conditions that will pollute rivers, lakes, and other water bodies, including the ground water supply. Consistent: Case 05-009/Staff Report Not Applicable. Lot 3 already exists and therefore can be used in any manner consistent with the prevailing zoning. When the lot is subdivided, the subdivision procedure will require the subdivider to show that each lot to be created can sustain an ADEC approved well and septic system. Page 2 of 8 P & Z: June 15, 2005 2. Open Space Green areas and open space shall be retained to the maximum extent feasible and prudent when land is subdivided. Consistent: Not applicable. This case is a pre-cursor to, but does not involve land subdivision. 3. Access New subdivisions or other residential developments on the shoreline shall provide usable public access to and along the shoreline, extending the length of the development, to the extent feasible and prudent. Consistent: Yes. The tidelands along the shoreline will continue to provide public access. 4. Hazardous Lands Development shall not occur in hazardous areas such as avalanche runout zones, active floodplains, and high water channels to the extent feasible and prudent. Siting, design, and construction measures to minimize exposure to coastal erosion, mass wasting and historic tsunami run-up shall be required to the extent feasible and prudent. Consistent: Case 05-009/Staff Report No. Portions of Lot 3 are subject to tidal action and the Geophysical Hazard Policies of the KIBCMP indicate that land developed within 30 feet of mean sea level are at risk of experiencing coastal flooding based on a 100-year event or 1 percent probability in any given year. Development on Lot 3 may now be sited on uplands that are not as susceptible to flooding or other development measures can be taken to locate, design and construct improvements in a way that mitigates the potential hazard of coastal flooding. If the subdivision is granted, the density of development at risk will be increased and the potential solutions available to mitigate the risk will be reduced. Page 3 of 8 P & Z: June 15, 2005 5. Wetlands Filling and drainage of water bodies, floodways, backshores, and natural wetlands shall be consistent with ACMP Standards 6 AAC 80.070 (Energy Facilities) and 6 AAC 80.130 (Habitats). Consistent: Not applicable. This request does not involve filling or draining of water bodies, floodways, backshores, and natural wetlands. COMMENTS This request is intended to allow the petitioner to subdivide Lot 3, Kalsin Bay Estates into seven (7) parcels varying in size from 5.00 gross acres to 10.83 gross acres. About a year ago, the petitioner submitted an application for subdivision. After a pre- review by staff, the plat was returned to the petitioner based upon the indication on the preliminary plat of extensive flooding/tidal action indicated by the Mean High Water (MHW) line located within the plat boundaries. KIBC 71.13.050.A indicates a minimum lot area requirement of five (5) acres and a minimum lot width requirement of 250 feet for the C- Conservation zoning district. On the surface, the lots shown on the preliminary plat proposed to create Lots 3A -3G, Kalsin Bay Estates appear to meet the minimum lot area and lot width standards. In looking through the applicable subdivision requirements however, KIBC 16.40.040.A.2 and 16.40.050.B.1 act to modify the minimum zoning requirements regarding lot area as follows: KIBC 16.40.040.A. The preliminary plat shall include the following information:.. . ...2: the approximate acreage or square footage and dimensions of each lot of the proposed subdivision and the number of lots contained therein. Calculations of lot areas to meet zoning district area regulations shall not include any land subject to tidal action below the mean: high tide line; In addition to the preceding, KIBC 16.40.050.B.1 provides the following guidance where the minimum lot size and width does not conform to the borough zoning ordinance. KIBC 16.40.050.B. Lots shall also meet, at a minimum, all the following criteria: ...1. Minimum lot sizes and width shall conform to the requirements of the borough zoning ordinance unless a variance from the zoning requirements is granted by the commission. Case 05- 009 /Staff Report Page 4 of 8 P & Z: June 15, 2005 The petitioner has provided a copy of the preliminary plat for the commission to review with this request. This plat shows several lot areas indicated where the uplands are not affected by tidal action. Staff has used these approximations in Section 2 above, although they do appear to exclude other portions of the property that are technically above the MHW line. Based on the design of the proposed subdivision, it appears that proposed Lots 3C through 3F are the only lots substantially affected by the tidal area as noted on the preliminary plat. As a result, the variance requested here could mean the difference between the petitioner being able to create seven (7) lots as proposed or four (4) lots if proposed Lots 3C through 3F were collapsed into one (1) lot. In addition, it appears that proposed Lots 3A and 3G have the potential to be further subdivided to create additional lots as each of these two lots is indicated to be in excess of ten (10) acres in size, with minimal tidal influence noted on each lot. RECOMMENDATION Staff believes that this request does not meet all the conditions necessary, as reflected in the findings of fact, for a variance to be granted under Chapter 17.66 (Variance) of the Borough Code. APPROPRIATE MOTION Should the Commission agree with the staff recommendation, the appropriate motion is: Move to grant a variance; in accordance with KIBC 17.66, to permit the creation of four (4) lots by subdivision with less than five (5) acres of lot area that is not subject to tidal action below the mean high tide, per KIBC 16.40.040.A.2, KIBC 16.40.050.B.1, and KIBC 17.13.050.A. Staff recommends that the preceding motion be FAILED and the following motion APPROVED. Move to adopt the findings in that staff report dated June 7, 2005 as "Findings of Fact" for this case. Case 05-009/Staff Report 1.3 Page 5 of 8 P & Z: June 15, 2005 FINDINGS OF FACT 17.66.050 A.1.Exceptional physical circumstances or conditions applicable to the property or intended use of development, which generally do not apply to other properties in the same land use district. The exceptional physical circumstance appears to be the lot area subject to tidal action that is the subject of this request. It should be noted that this exceptional circumstance does not affect all of the lots proposed in the subdivision; however it does pertain to proposed Lots 3C through 3F as indicated. In addition, there are two lots in excess of 10 acres each that could be reconfigured to create additional lots not affected by tidal action. 17.66.050 A.2.Strict application of the zoning ordinances would result in practical difficulties or unnecessary hardships. The petitioner is indicating through this request that the strict application of the zoning ordinance (and by implication subdivision ordinance) will result in practical difficulties or unnecessary hardships. The result of the applicable zoning and subdivision code provisions is to disallow substantial land area subject to tidal action from being considered as part of the proposed subdivision. If relief cannot be obtained by variance, the subdivider will have to reduce the number of lots in the subdivision from the requested seven (7) lots down to about four (4) lots, or redesign the subdivision substantially to share the burden of the tidally influenced land more equally among the proposed lots. The minimum lot area standards of the KIB zoning code are just that, a minimum standard. The C- Conservation zoning district does not guarantee anyone a five acre lot minimum size or in any way create an entitlement to subdivide down to the minimum size. While this is a variance case and not a subdivision, the two codes must work hand in hand in this case. The minimum allowable lot size should be whatever the Commission determines is necessary to develop a "reasonable" use of the land. In the C- Conservation zoning district, this means a lot that is reasonably suitable for the development of the uses and structures permitted in the zone. 17.66.050 A.3.The granting of the variance will not result in material damages or prejudice to other properties in the vicinity nor be detrimental to the public's health, safety and welfare. It is unlikely that granting the variance in this case will result in material damages or prejudice to other properties in the vicinity. Other subdividers in the C- Conservation zone may be prejudiced if they have provided five (5) acres of developable area not subject to tidal action in past subdivisions however. This would also hold true for subdividers who have been required to create lots larger than five acres to accommodate steep slopes, soils conditions that would not support on -site wells and septic systems, etc. Case 05- 009 /Staff Report Page 6 of 8 P & Z: June 15, 2005 Granting relief in this case is likely to result in additional variances being required because the minimal acreage designated on proposed Lots 3C through 3F may not be adequate to support many permitted uses and structures after the required zoning setbacks are computed for each lot. The C-Conservation zoning district requires a 25-foot front yard setback, a 25 foot side yard setback and a 25 foot rear yard setback. In the case of proposed Lot 3C, this could represent a reduction of developable land area from the approximate 44,000 square feet indicated, to an area of about 32,600 square feet of contiguous area available for structural development and on-site well and septic system. By comparison, the RR1-Rural Residential One zoning district has a 40,000 square foot minimum lot size requirement. A 44,000 square foot lot configured like the developable area or proposed Lot 3C in the RR1 zone would provide roughly the equivalent development area proposed for this same lot in the C-Conservation zone. The front lot line designated for Lots 3C through 3F is located along Kalsin Bay. This line also approximates the highest contour line on the lots, which is shown to be 15 feet above mean sea level. Proposed,Lot 3F is an exception in that it has a 65,000 square foot accessible area in the rear yard in addition to the development area in the front yard. The elevation of this additional area on proposed Lot 3F is also about 15 feet. In addition, the net usable area of proposed Lot 3F remains much lower than the five (5) acres required in the C-Conservation zoning district. For proposed Lots 3C through 3E, it is likely that development would be more desirable towards the highest point on the lot, which also happens to be the front lot line. The farther structures are set back from the front lot line the closer the building sites will be to the tidal floodplain. In addition, this could also restrict or complicate the placement of well and septic systems that require a 100 foot separation distance from one another, even if located on abutting lots. 17.66.050 A.4.The granting of the variance will not be contrary to the objectives of the Comprehensive Plan. The comprehensive plan does not address the development density in this area, so granting the variance will have no affect on the objectives of the Kodiak Island Borough Comprehensive Plan. 17.66.050 A.5.That actions of the applicant did not cause special conditions or financial hardship from which relief is being sought by the variance. In this case, the petitioner has not created special conditions or financial hardship. The fact that the petitioner is required to go through this variance procedure first, before being allowed to subdivide the property, will ensure that such special conditions or financial hardships that might befall the petitioner, or subsequent owners of property in the proposed subdivision, may be avoided. As alluded to under Standard "A.2" the petitioner has a number of conforming alternatives that would comply with both subdivision and zoning ordinances and thereby eliminate the need for Case 05-009/Staff Report Page 7 of 8 P & Z: June 15, 2005 variances. Taken in this context, it would appear`that the requested variance is more a matter of financial convenience to maximize the number of lots and presumably the economic return to be realized from those lots. 17.66.050 A.6.That the granting of the variance will not permit a prohibited land use in the district involved. It does not appear that the granting of the requested variance will permit a prohibited land use in the C-Conservation zoning district. Quite the contrary, it appears that granting the variance may result in artificially constraining certain permitted and conditional uses from being developed on proposed Lots 3C through 3F without the prospect of additional variances being needed to obtain a "reasonable" use of the land. Case 05-009/Staff Report Page 8 of 8 P & Z: June 15, 2005 iii _N . _. tt ... _____ "The 1 Who Cares!" 1227 Mill Bay Road Kodiak, AK 99615 (907) 486 4663 phone (907) 486 5674 fax alaskahomes @gci.net www.AlaskalRealty.com 04/27/2005 To: Community Development From: Wayne Sargent, Kathy Dillard Alaska 1 Realty /Grant Shields To Whom It May Concern: We are applying for a variance regarding the subject property (attached). We feel that the variance should be considered for these prospective parcels to be developed. The issue being that if the parcels were to be subdivided that there would not be enough land use available per conservation requirements because of the wetlands that make up a large part of the property. However we feel and have always felt that the wetlands are an integral part of this unique property that we own and would disclose to any potential future property owner the regulations regarding wet lands. We are requesting the variance so that we may be permitted to sub divide the property into 5 acre parcels (see proposed plat). We feel that for this variance to be denied we would not be able to achieve the right to prosper from this land that has been in our family for thirty years. Upon the initial plat proposal by Stan Austerman with Horizon survey it was apparent that building sites could easily be structured on the 5 acre parcels with no disturbance to the wetlands. We respectively request that the variance be allowed so that we may move forward with applying for-preliminary plat-approval. Thank you for your consideration on this most urgent matter. Sincerel Kathy DS ard, Wayne Sargent Grant Shields/Broker Alaska 1 Realty cofV!(y UN:ryCFI PMP F >>R-VI, i 03/28/05 To: Kodiak Island Borough Attn: Duane Dvorak From:. Wayne Sargnet cc: Alaska 1 Realty, Kathy Dillard To Whom It May Concern: If possible, please apply the $ 250 application fee that was to be used for the Kalsin Bay Plat project (see attached) towards the application fee for the attached Variance. The initial funds were paid to the K.I.B Dated 6/37/�' 7 . If you have any questions or need anything from me please call me at my home 481 -3040 or Alaska 1 Realty 486 -4663. Thank you for your attention on this matter. Sincerely, Wayne Sargent 04 -22 -2005 13:24 ALASKA1REP.=-; 9074865674 .. • J. 1 cJ T A rJ KODIAK I$LAND.BOROUGH - COMMUNITY DEVELOPMENT DEP 710 Mlll any Rd, Roam 205, KODIAK, AK 99815.8398 (9071 4136 -9363 - FAX(907) 40 vary.ltib,cosociak.ak, s Property ownees name Preptirty owner's mailing address 4 ' 11 '9 CI State Zip 1 -36 c!/( hfit-p310 Home phone Work Procne E•mail Addy, Apenrs name (If applicable) LAM- At;anre mailing address City State Zip Houle phone Work Phone 6-maii Addy. t.0 id- I-1 Arbp.rly Informal' Property ID Numberls ht ,t 3 ladoin t3gy ck.$hy Legal 0 esetipl on PAGE3 r , J. RTMENT 9396 Current Zoning: Applicable Comprehensive Plan: $C:� It -N �[ta Year of Plan adoption: . Present Use of Property. 1..l4l4-e-w4,'C Proposed Use cf Property. (Note: use addtiona I sheets, if nee dad. destaipticn of he ;reposed request) Applicant Certification bombs certify ea the properly osmenbuthorirsdopen! that this application for Planning and Zoning co tore and complete to the best of my knowledge and that it is aubn tt.d In accordance with the require «adieu Wend Borough Coda, wlrlcls Includes a detailed flee pia #i for variance and conditional WO FICI include optional supporting documentation as indicator! below Asdltlor i NarretNeMiatory - . - M•b{rllt Survey Photographs Property wryer! Sigratura .-;?-9 ' Date zed Agent's lgr+ature to provide a complete mission r,Viswis nes of OM appHaab' ttr and which may t A devetoprnent plan for one or more lots on viyh:h lb Mown the exlstn, r• proposed condltons Otte lot in eeoetstten, drainage, liobd plains, wetland% and waterways. landsCe pin . red open spaces; wakways; meads &tufaton., utility setvicas; sbvatures and bi1ldings; Signs find lighting; beans, buffers, and screening devices', ar sny other Inbrmadan thatrex>:onauly may in required in order mien Intoned decision can be made by (Source: The New (Unstated Soot; of Development 001'4101N 01993 by Rutgers Univsrsityj • The application hs for Items covered by this form is $250,09. except an o STAFIrUSE ONLY Coda 5aclicn( Involved Variance (Kf BG 1 7,66.020) ,Canddmal Use Perrr (KISC 17.67.0 '.6) Other (appearaneel uet'stts, sit f'• review, etc.) ;71_00 Zoning change __ (KIBC 17.72,080 and 030.C) Application received by; Curer tiding topography. f Ingress and egress; ow ding develop-no d; approving aathodty. stn errwlss noted. Y VEI IF*CATION 63 -1B -2005 17:14 '04 188 -.2005 09:10 5 f &mature ALASKAWEALTY 9x74655574 ALASKA1RERLTY 9074865E74 ✓ - , D O V eQ PFEee PAGE! • " • • ` - t- can'ecC.ed From Oubd.R In to Vartanc9 3e2 604- Ct2. 05 -009 Wayne Sargent PO Box 8928 Kodiak, AK 99615 Kodiak Island Borough Community Development Department 710 Mill Bay Road Room 205 Kodiak, Alaska 99615 Phone (907) 486-9363 Fax (907) 486-9396 www.kib.co.kodiak.ak.us May 26, 2005 Re: Case 05-009. A request for a Variance, in accordance with KIBC 17.66, to permit the creation of lots by subdivision with less than five (5) acres of lot area that is not subject to tidal action below the mean high tide, per KIBC 16.40.040.A.2, KIBC 16.40.050.B.1, and KIBC 17.13.050.A. Dear Mr. Sargent: Please be advised that the Kodiak Island Borough Planning and Zoning Commission has scheduled the case referenced above for Public Hearing at their June 15, 2005 regular meeting. This meeting will begin at 7:30 p.m. in the Assembly Chambers, 710 Mill Bay Road, Kodiak, Alaska. Attendance at this meeting is not mandatory but recommended. One week prior to the regular meeting, on Wednesday, June 8, 2005 at 7:30 p.m. in the Borough Conference Room (#121), the Commission will hold a packet review work session for the purpose of reviewing packet materials and staff summaries of cases scheduled for the regular meeting. The public is welcome to attend the packet review work session; however, the work session is not for the purpose of receiving public testimony. Applicants who wish to present testimony and/or evidence related to their case should appear at the Public Hearing during the Regular Meeting and present such information in person. Please contact the Community Development Department at 486-9363 if we can answer any outstanding questions or provide additional information. In advance, thank you for your cooperation. Sincerely, lInekQo c5rn Sheila Smith, Secretary Community Development Department CC: G-CO, crk" h ■e-ic13 K�, IAK ISLAND BOROU1 COMMUNITY DEVELOPMENT DEPARTMENT 710 Mill Bay Road, Kodiak, Alaska 99615 Public Hearing Item VI -A PUBLIC HEARING NOTICE A public hearing will be held on Wednesday, June 15, 2005. The meeting will begin at 7:30 p.m. in the Borough Assembly Chambers, 710 Mill Bay Road, Kodiak, Alaska, before the Kodiak Island Borough Planning and Zoning. Commission, to hear comments if any, on the following request: CASE: 05 -009 APPLICANT: Wayne Sargent AGENT: Grant Shields REQUEST: A request for a Variance, in accordance with KIBC 17.66, to permit the creation of lots by subdivision with less than five (5) acres of lot area that is not subject to tidal action below the mean high tide, per KIBC 16.40.040.A.2, KIBC 16.40.050.B.1, and KIBC 17.13.050.A. LOCATION: Kalsin Bay Estates, Lot 3 ZONING: C- Conservation This notice is being sent to you because our records indicate you are a property owner /interested party in the area of the request. If you do not wish to testify verbally, you may provide your comments in the space below, or in a letter to the Community Development Department prior to the meeting. If you would like to fax your comments to us, our fax number is: (907) 486 -9396. If you would like to testify via telephone, please call in your comments during the appropriate public hearing section of the meeting. The local call -in telephone number is 486 -3231. The toll free telephone number is 1- 800 - 478 -5736. One week prior to the regular meeting, on Wednesday, June 8, 2005, a work session will be held at 7:30 p.m. in the Kodiak Island Borough Conference Room ( #121), to review the packet material for the case. Kodiak Island Borough Code provides you with specific appeal rights if you disagree with the Commission's decision on this request. If you have any questions about the request or your appeal rights, please feel free to call us at 486 -9363. • Your Name: Mailing Address: Your property description: Comments: rt�tlQcl Z7 —D 11 Pk\ 17.13.050 Area requirements. A. Lot area. The minimum lot area required is five (5) acres. B. Lot width. The minimum lot width required is two hundred fifty (250) feet. 16.40.040 Data required. A. The preliminary plat shall include the following information: 1. date, scale, and north arrow; 2. the approximate acreage or square footage and dimensions of each lot of the proposed subdivision and the number of lots contained therein. Calculations of lot areas to meet zoning district area regulations shall not include any land subject to tidal action below the mean high tide line;