USS 2537B & USS 562 TR A-1 - VarianceIN THE SUPERIOR COURT FOR' STATE OF ALASKA
THIRD JUDICIAL DISTRICT
LORRAINE DAYTON, )
)
Plaintiff/Appellant,
)
vs. ) Case No. 3AN 78-3988 Civil
) 79-2408 Civil
KODIAK ISLAND BOROUGH, )
et al., )
)
Defendants/Appellees. )'
)
APPELLEE.KODIAKISLAND-BOROUGH'S.ANSWERING.BRIEF
FILED IN THE SUPERIOR COURT
OF THE STATE OF ALASKA ON
FEBRUARY 27, 1980.
By:
Deputy Clerk
GARNETT, KLINKNER & BENDELL
900 W. 5th Avenue, Suite 540
Anchorapl" Alasky. 99501
By:
Thomas F. Klinkne
Attorneys for Appellee
Kodiak Island Borough
RECEIVET
MAR 3 1960
PM
11819110412412t3t4i503
TABLE OF CONTENTS
Page
TABLE OF CONTENTS
TABLE OF AUTHORITIES
STATUTES AND RULES RELIED UPON iv
STATEMENT OF JURISDICTION 1
STATEMENT OF THE RECORD 1
STATEMENT OF FACTS 1
ARGUMENT:
I. APPELLANT HAS NO STANDING TO CHALLENGE THE
GRANTING OF THE LOT AREA AND PARKING
VARIANCES
2
II. THE THREE VARIANCES WERE GRANTED IN ACCORDANCE
WITH THE STANDARDS FOR VARIANCES IN THE KODIAK
ISLAND BOROUGH CODE 7
III. THE COMMISSION PROPERLY MET IN EXECUTIVE. SESSION
TO DISCUSS PENDING AND. THREATENED LITIGATION
PERTAINING TO THE VARIANCE REQUEST ' 15
IV. APPELLANT'S CONTENTIONS REGARDING CONFLICT OF
INTEREST ARE WITHOUT MERIT 22
V. CONCLUSION 26
TABLE OF AUTHORITIES
Page
Amidon v. State, Opinion No. 1999 (December 21, 1979). . 2,5
City and Borough of Juneau v. Thibodeau, 595 P2d 626
(Ak. 1979) 9,10,11
Conner v. Herd, 452 SW.2d 272 '(Mo. App. 1970) 4
Falcon.v: Alaska Public.Offices Commission, 570
P.2d 469 (Ak. 1977) 2,3
Fiscal.Court of-Jefferson.County.v.-Courier-Journal and.
Louisville Times-Company, 554 SW.2d 72 (Ky. 1977). . . 17
In.Re:-McKay, 416.P.2d 823 (Ak. 1964) 19
Liberati.v. Brisfol'Bay.Borough, 584 P.2d 1118 (Ak. 19.78) 21
Minneapolis Starand Tribune Cornpanyv. Housing and Rede-
.velopmentAuthority, 251 NW.2d 620 (Mn. 1976). . . . 17,20
Oklahoma Association of Municipal Attorneys v. State,
577 P.2d 1310 (Ok. 1978) :17
Sacramento.Newspaper Guild v. Sacramento County Board of
Supervisors, 69 Cal. Rptr. 480 (Cal. App. 1968) . 17,19,20
•
Tyler v;.Board of Zoning Apeals, 145 At.2d 832
(Conn. 1958) . 5
Wagstaff v. Superior Count, Family Division, 535 P.2d
1220, 1225 (Ak. 1975) 3
Zerbe v. State, 578 P.2d 497, 498 (Ak. 1978) 20
•
Texts
Comment, 64 Mich. L.Rev. 1070, 1083 (1966) 6
Comment, 8 Wm. & Mary L. Rev. 294, 306 (1967) 6
1972 House Journal 20
Page
Alaska °Statutes
09.65.070(d) (3.) 16
29.23.555 24
29.23.580 - 16
39.50.090(a) 24
44.62.310 16,18,20
44.62.310(a) 16
44.62.310(c) - 16,19
44.62.310 (c) (1) 16
44.62.310(c) (3) . . 16,19
44.62.310(d) (1) 21
44.62.312(a) 20
Kodiak-Island-Borough-Code
KIBC 17.66.090(b)- 7
Alaska•Rules of Evidence
Section 503. 19
California-Government-Code
Section 54950 20
STATUTES AND RULES RELIED UPON
ALASKA STATUTES
Sec. 29.23.555. Conflict of interests. Each home rule
and general law municipality shall adopt a conflict-of-
interests ordinance which, other provisions of this chapter
notwithstanding, includes provision that an officer or
employee shall disqualify himself from participating in any
official action in which:he has a substantial financial
interest. If a home rule or general law municipality fails
to adopt such a conflict-of-interests ordinance within 90
days from September 10, 1972,_the conflict-of-interests
provision of this.section is automatically applicable to
and binding upon that municipality. (gl ch 147 SLA 1972)
Sec. 29.23.580. Meetings public. Meetings of all
municipal bodies shall be public as provided in AS
44.62.310. The assembly and council shall provide
reasonable opportunity for the public to be heard at
regular and special meetings. This section .applies to home
rule and general law municipalities. •( g 2 ch 118 SLA 1972)
Sec. 39.50.090. Prohibited acts. (a) No public •
Official may use his official position or office for the
primary purpose of obtaining financial gain for himself, or
'his spouse, child, mother, or father, or business with
which he is associated or owns stock.
Sec. 44.62.310. Agency.meetings public. (a) All
meetings of a legislative body, of a board of regents, or
of an.administrative body, board, commission, committee,
subcommittee, authority, council, agency, or other
organization, including subordinate units of the above
groups, of the state or any of its political subdivisions,
including but not limited to municipalities, boroughs,
school boards, and all other boards, agencies,'-assemblies,
councils, departments, divisions, bureaus, commissions or
organizations, advisory or otherwise, of the state or local
government supported in whole or in part by public money or
authorized to spend public money, are open to the public
except as otherwise provided by this section. Except when
voice votes are authorized, the vote shall be conducted in
such a manner that the public may know the vote of each
person entitled to vote. This section does not apply to
any votes required to be taken to organize the '
afore-mentioned bodies.
(b) If excepted subjects are to be discussed at a
meeting, the meeting must first be convened as a public.
meeting and the question of holding an executive session to
-iv-
discuss matters that come within the exceptions contained
in (c) of this. section shall be determined by a majority
vote of the body. No subjects may be considered at the
executive session except those mentioned in the motion
calling for the executive session unless auxiliary to the
main question. No action may be taken at the executive
session. -
(c).The following excepted subjects may be discussed in
an executive session:
(1) matters, the immediate knowledge of which would -
clearly have an adverse effect upon the finances of the
government unit;
(2) subjects that tend to_prejudice the reputation and
character of any person, provided the person may request a -
public discussion;
(3) matters which by law, municipal charter, or
ordinances are. required to be ;confidential.
(d) This section does not .apply to •
(1) judicial_or quasi-judicial bodies when holding a
meeting solely to make a decision in an adjudicatory
proceeding;
(2) juries;
(3) parole or pardon boards;
• (4) meetings of a hospital medical staff; or
(5) meetings of the governing body or any committee-of
a hospital when holding a meeting solely to act upon
• matters of professional qualifications, privileges or
discipline.
(e) Reasonable public notice shall be given for all
meetings required to be open under this section.
(f) Action taken contrary to this section is void. ( §1
art VI(ch 1) ch 143 SLA 1959; am § 1 ch 48 SLA 1966; am §1
ch 78-SLA 1968; am § 1 ch 7 SLA 1-969; am:§§ 1, 2 ch 98 SLA
. 1972; am § 2 ch 100 SLA 1972; am.§ 1 ch 189. SLA 1976)
KODIAK ISLAND BOROUGH CODE
• . 17.66.090 Variance--Application.
B. The application shall contain a statement and
• adequate evidence showing the following conditions, all
• four of which must exist .before a variance may be granted:
1. That there are exceptional physical
circumstances or conditions applicable to the property or
to its intended use or development which do not apply
generally to the other properties iri the same land use
district.
2. That the strict application of the provisions
of this title would result in practical difficulties or
unnecessary hardship;
3. That the granting of the variance will not
result in matecial damage or prejudice to other properties
in the vicinity nor be detrimental the public health,
�
aafetl, or welfare;
4. That the granting of the variance will not be
contrary to the objectives of the comprehensive plan.
�
(Prior code Ch. 5 subch. 2� 2IC(1)) -
STATEMENT OF JURISDICTION
Appellee Kodiak island Borough adopts appellant's
'statement of jurisdiction.
STATEMENT OF.THE-RECORD
Appellee Kodiak Island Borough has not had access
to the pagination system adopted by appellant. References
to the record in this brief will be to the title and
original page number of the document, or to the original
page number of the transcript of proceedings before the
Kodiak Island Borough Planning Commission (cited herein as
"P.C.")
Appellee.Kodiak Island Borough reserves the right
to supplement its brief in response to supplemental
material filed by any other party.
STATEMENT OF FACTS
Appellee Kodiak Island Borough adopts the first
Page of appellant's statement of facts (Appellant's 'Brief,
p. 3). The remainder of the statement is largely
argumentative. For additional facts, appellee Kodiak
Island Borough will cite the pertinent parts of the record
in its argument.
I. APPELLANT HAS NO STANDING TO CHALLENGE THE
GRANTING OF THE LO, AND PARKING
VARIANCES.
Appellant claims .standing to challenge the
approval of the three variances at issue here as a "person
aggrieved" by their issuance and as a taxpayer (Appellant's
Brief, p. 1). Under Alaska standing law and the criteria
established for standing in zoning cases, appellant is not
aggrieved by the approval of the lot area and parking
variances at issue here. On the basis of the policy of
judicial self-restraint expressed by the standing doctrine
in Alaska, the court should decline to grant appellant
standing solely based on her status as a taxpayer.
In Falcon v. Alaska Public Offices Commission, 570
P.2d 469 (Ak. 1977), the court summarized the law of
standing in Alaska as follows:
The question of standing involves a determination
that there exists the 'adversity which is
fundamental to judicial proceedings' and is
necessary for a fair resolution of the case before
us. Standing is a component of justiciability
which, under the Federal Constitution, acts as a
limitation on Federal court jurisdiction, and is
grounded in the 'case or controversy' requirement
of Article III. Flast v. Cohen, 392 U.S. 83, 88
Sup. Ct. 1942, 20 L.Ed.2d 947 (1968). Under
Flast, the federal constitutional standards of
'case or controversy' require adversity and
concreteness in order to ensure that 'the dispute
sought to be adjudicated in an adversary context
and in a form historically viewed as capable of
judicial resolution'. Since the requirement of
adversity is neither federally mandated nor
required by the Alaska Constitution, the court's
requirement of adversity asa component of
-2-
standing is essentially a judicial rule of
self-restraint. The court in Wagstaff v. Superior
Court, Family Division, t535 P.2d 1220, 1225 (Ak.
1975) , adopted the "injury in fact" test to
determine the requisite adversity. 570 P.2d
469,474-475 (footnotes omitted).
In Wagstaff the court adopted the following
definition of the "injury in fact" that confers standing:
'Injury in fact' reflects the . . . requirement
• that a person be 'adVersely affected' or
'aggrieved,' and it serves to distinguish a person
with a direct stake in the outcome of
litigation--even though small--from a person with
a mere interest in the problem. 535 P.2d 1220,
• 1225 (footnotes omitted).
From the language quoted in Falcon and Wagstaff
above, it is clear that the criteria for determining
appellant's status as a person aggrieved by the approval of
the variances and as a person with standing to challenge
those variances are equivalent.
Appellant challenges the approval of three zoning
variances by the Planning Commission of the Kodiak Island
Borough. One varies the required minimum side yard for
multiple family structures. Another varies the minimum lot
area per dwelling unit required for a multiple family
structure. The last varies the minimum number of
off-street parking spaces required for a multiple family
structure. The three variances pertain to different
aspects of a single structure, the Kodiak Elderly Housing
Project, constructed by the variance applicant Sunset
Development Company.
. -3-
However, the effects of each of the three
variances should be considered separately for standing •
purposes. See, Conner v. Herd, 452 SW.2d 272 (Mo. App.
1970). The injury to appellant must be evaluated on the
basis of the impact of each individual variance, not the
impact of the building as otherwise permitted (id.):
Appellant's only claim of injury arising from the
Kodiak Elderly Housing Project is that the building
partially blocks her view, devaluing her property. (P.C.
50-51). This basis for appellant's presence in this
. litigation appears throughout the pleadings filed in the
cases consolidated with this appeal. Viewing the impact of
each variance individually, as required by Conner, supra,
it can be seen that only the side yard variance has the
adverse impact asserted by appellant. The lot area
variance affects the number of units allowed in the
structure, but does not affect the height or bulk of the
structure. The off-street parking variance allows more
dwelling units in the'structure, as the minimum off-street
parking requirement is determined by the number of dwelling
units, but it, too, does not determine the height or bulk
of the structure. The record does not reflect that the
increased density or reduced off-street parking allowed by
the variances has any adverse effect on appellant. Hence
she has no standing to challenge the latter two variances.
-4-
Appellant also claims standing as a taxpayer.
Except in unusual circurnstanceS, not present here, it has •
been held that status as a taxpayer does not give rise to
the sort of injury that confers standing to challenge a
zoning variance:
It is a fundamental concept of judicial
administration . . . that no person is entitled to
set the machinery of-the courts in operation
except to obtain redress for an injury he has
suffered or to prevent an injury he may suffer
either in-an individual or representative
capacity. (Citation omitted). A land owner whose
property in a town is not affected by a zoning
ordinance is in no position to attack its
• validity. (Citation omitted). Nor-may one attack
the validity of a.decision of a-Zoning Board of
Appeals-unless he is specially and adversely
affected thereby. There must be a-specific,
personal and-legal interest in the subject matter
of the decision as distinguished from a general
interest such as is the concern of all members of
the community. 1 Rathkopf, Law of Zoning and
Planning (3rd Ed.) p. 631. There is no claim
here, and no finding, that any property rights or
other legal interest of the individual plaintiff
have been affected by the action of the defendant
Board in granting the variance. To be an
aggrieved .person within the meaning of Section
379d, where traffic in intoxicating liquor is not
involved, one must be found to have been specially
and injuriously affected in his property or other
• legal rights. Persons whose property'interests
are adversely affected by a decision are aggrieved
parties entitled to seek relief either by appeal
or resort to an independent action. (Citations).
The individual plaintiff here, whose interest is
merely that of a resident and taxpayer of the town
concerned with the strict enforcement of the
zoning regulations for the general welfare of the
community, is not entitled to maintain an appeal.
as an aggrieved person under Section 379d. Tyler
v. Board of Zoning Appeals, 145 At.2d, 832 (Conn.
1958).
-5-
See also, Comment, 64 Mich. L.Rev. 1070, 1083
(1966); Comment, 8 Wm. & Mary L.Rev. 294, 306 (1967)..
Given the policy of judicial self - restraint that
the Alaska Supreme Court has announced through the adoption
of the injury -in -fact criterion for standing, the court
should not to accord 'appellant standing on the basis of her
status as a taxpayer, and therefore decline to review the
approval of the lot area and off- street parking variances,
because appellant lacks standing to seek such review.
II, THE THREE VARIANCES WERE GRANTED IN
ACCORDANCE WITH THE STANDARDS FOR VARIANCES,
IN THE'KODIAK ISLAND'BOROUGH CODE. ---
The four standards for granting a variance under
the Kodiak Island Borough Code appear at Section
17.66.090(b). The variances at issue here conform to those
• four standards.
The first standard is:
That there are exceptional physical circumstances
or conditions applicable to the property or to its
intendeduse•or development which do not apply
generally to other properties in the district.
This provision allows the commission to consider
factors other then the physical condition of the
undeveloped property in determiningwhether a variance is
justified: The characteristics of the proposed development
itself, when weighed against the impact of those
characteristics on the public interest, also can support a
variance.
Without citing any authority for the proposition,
appellant argues.that this standard for granting a variance
inevitably leads to arbitrary administration of the zoning
,ordinance, and hence is unconstitutional. There is no
foundation for this argument. Kodiak Island Borough Code
17..66.090(b) establishes standards for the granting of a
variance that require the commission to apply its land use
expertise to'balance the interest of the property owner in
developing his property against the interest of the public
-7-
in a strict enforcement of the zoning regulations as to
that property. Such a balancing of interests is typical of
judicial and quasi-judicial determinations. An individual
decision under such a balancing may be rational or
arbitrary. If it is not supported by the standards in
ordinance it should be overturned. The standards
themselves, however, are not arbitrary, nor do they invite
arbitrariness. On the contrary, they direct the
commission's attention to the factors 't must consider in
balancing the private and public interests that are at
stake.
In this case, the commission found that the
characteristics of an Elderly Housing Project, arising from
the demographic characteristics of the project's residents,
were unique to this form of development. The principal
characteristics that influenced the commission's decision
were the rate of automobile ownership among elderly Kodiak
residents (P.C. 36,*39, 102) reducing the need for
off-street parking; and the number of elderly persons
likely to occupy a dwelling unit (P.C. 30-31, 99) allowing
more units per lot area without raising population
density. In addition, the commission heard testimony as to
the unique suitability of this location for elderly
housing. It was one of very few substantial undeveloped
tracts located on the border of the downtown section of
-8-
Kodiak. Testimony at the hearing pointed to the importance
for elderly citizens of housing lqcated near stores,
churches, health care, and government offices, so that
elderly citizens could reach those services easily and
. without reliance upon the automobile (P.C. 35, 96-99). As
for the side yard variance, there is testimony that-the
provision of elevator facilities for elderly residents,
combined with HUD fire safety requirements, required the
construction of a compact building centered around an
elevator core (Supp.. P.C. 7). Combined with the unusually
narrow and irregular configuration of the site, this unique
characteristic of the elderly housing design required that
the building be shifted to the wider eastern part of the
lot, encroaching upon the required side yard (Supp. P.C. 7,
P.C. 20-21). The commission properly took account of these
unique physical characteristics of the proposed development
in its findings with respect to the three variances.
The second condition provides:
That the strict application of the provisions of
this title would result in practical difficulties
or unnecessary hardship.
Appellant relies upon City and Borough of Juneau
v. Thibodeau, 595 P.2d, 626 (Ak. 1979) in arguing for a
narrow construction of the commission's authority to grant
variances. However, a close reading of that case in
connection with the second condition quoted above reveals
-9-
that the case actually authorizes a broader discretion to
grant variances under the KodiakIsland Borough Zoning
Ordinance then under the Juneau Ordinance at issue in
Thibodeau. In Thibodeau the court described the
significance of the terms "hardships" and "practical
difficulties" as
In supplying, content-to these standards, the
Superior Court focused on the words 'practical
difficulty' in the ordinance and essentially .
adopted the criteria for granting area variances
articulated by the courts of New York and Rhode
Island in interpreting their own variance
provisions.
The Superior Court's adoption of this 'practical
difficulty' test for the grant of a variance in
the circumstances of the present case involved an
implicit rejection of the 'hardship' language in
the Juneau ordinance, including the requirement'
that 'peCuliarities of the specific property' be
implicated in complying with the ordinance. Other
jurisdictions have judicially established a
distinction among the standards applied to
different types of variances—reserving the
'practical difficulty' test for non-use type
variances such as the one involved in the present
. case. However, in all the cases which have
adopted the 'practical difficulty' test, the
ordinances involved have.differed significantly
from the Juneau zoning ordinance at issue here.
Importantly, the cases in which separate standards
have been applied to use and area variances have
all involved ordinances which were phrased in the
disjunctive form (i.e., hardships or practical
difficulties) rather then in the conjunctive form
(i.e., hardships and practical difficulties).
Courts which have interpreted ordinances phrased
in the conjunctive form have consistently required
the applicant for a variance to satisfy both the
'practical difficulty and the hardship elements of
the variance test. The express language of [the
Juneau ordinance] fits into the latter category of
ordinances, requiring that in order for the Juneau
-10- .
board of adjustment to grant a variance both
'hardships and practical difficulties' must exist
(emphasis added). 595 P.2d, 626, 633-634
(footnotes omitted).
The court adopted a more stringent standard for
the granting of a variance, that usually associated with
"use variances", beCause. the Juneau code used the terms
"hardships" and "practical difficulties" in the
conjunctive. The court therefore required that both the .
"practical difficulties" andthe,more exacting "hardships"
standard be met before a variance could be issued. in
Juneau. In contras, Kodiak Island Borough ordinance
uses the terms "practical difficulties" and "hardships".. in
the disjunctive, indicating that the less stringent
standard for the granting of a variance that was applied by
the Superior Court in Thibodeau, would be the correct
standard in Kodiak. Thibodeau summarizes this less
stringent analysis in Note 24 at p. 633:
In Westminster Corp. v. Zoning Board of Review,
103 R.I. 381, 238 At1.2d, 353, 357 (1968), the
Supreme Court of Rhode Island established that the
test for an area variance 'is whether a literal
enforcement [of the zoning ordinance] would have
an effect so adverse as to preclude the full
enjoyment of the permitted use'. The Rhode Island
court further stated:
Entitlement to relief in these cases depends
upon a showing that the adverse affect of a
literal enforcement of the ordinance
precluding full enjoyment of the permitted
use amounts to more then mere inconvenience.
In New York, the test for an area variance
requires that:
Where the property owner will suffer
significant economic injury by the
application of an area standard ordinance,
that standard can be justified only by a
showing that the public health, safety and
welfare will be served by upholding •the
application of the standard and denying .the
variance.
Fulling v. Palumbo, 21 N.Y.2d 30; 286 N.Y. Supp.2d
249, 253, 233 NE.2d 272, 274 (1967). *Once the
municipality which seeks to deny the variance
demonstrates that.'sOme, legitimate public interest
will be served by the restriction,' the property
owner in New York must show that the ordinance as
applied-would deprive him of 'any use of the
property to which it is reasonably adapted and
that, as a result, the ordinance amounts to a
taking of his property.' Id., 286 N.Y. Supp.2d at
253, 233 NE.2d at 274-75.
This is precisely •the analysis adopted by the
Planning Commission here. The property owner, Sunset
•Development, demonstrated it would suffer significant
economic injury by the application of the three zoning
requirements at issue here, and it was shown that upholding
the requirements in question, in the context of an elderly
housing project, would not serve the public health, safety
and welfare.
The third condition is that:
The granting of the variance will not result in
material damage or prejudice to other properties
in the vicinity, nor be detrimental to the public
health, safety or welfare.
It is clear from the record and the foregoing
discussion that the public health, safety, and welfare, far
-12-
from being damaged, are promoted by the granting of these
variances to allow construction of the Elderly Housing
Project. The use of the word "material" indicates that
. mere speculative or incidental affects on-neighboring
property are not sufficient to warrant denial of a
variance. In,this case the only evidence on the issue of
damage to surrounding properties was that part of the view
from appellant's property would be obstructed by the
project. By approving the variances, the commission
indicated its belief that the view obstruction did not
constitute a material damage to appellant's property. Such
a finding is consistent with the absence in the record of
any substantial evidence regarding the effect of the
Elderly Housing Project on the market value of appellant's
property.
The fourth condition is that:
The granting of the variance will not.be contrary
to the objectives of the comprehensive plan.
The commission's finding of conformity of the
variances to the comprehensive plan is supported by the
testimony of Planning Director Harry Milligan (P.C. 100)
and the planning staff's memorandum of October 19, 1978 to
the Planning and Zoning Commission regarding this
application, Exhibit 17 to the transcript of the
proceedings before the Planning Commission.
-13-
References to the commission's previous decision
regarding the Elderly Housing Project in 1976 do not affect
the validity of its decision here. In voting to approve
the variances, three commissioners indicated in one manner
or another that doing so conformed to the commission's
approval of exceptions to allow the Kodiak Elderly Housing
Project in 1976. Appellant characterizes these statements
as indications that these commissioners mechanically
repeated their 1976 votes without considering the extensive
new evidence presented to them addressing the standards for
variances under the Kodiak Island Borough Code, and
discussed above. Although it is unclear that the
commissioners' statements meant that they were mechanically
reconfirming their previous votes, even if those statements
are so interpreted they do not require reversal, for the
written findings of the commission set forth valid
alternate grounds for upholding the commission's decision.
Those grounds, discussed in connection with the standards
for the granting of variances above, indicate that the
commission's decision should be affirmed •on its merits.
III. THE COMMISSION PROPERLY MET IN EXECUTIVE
SESSION TO DISCUSS PENDING AND THREATENED
LITIGATION PERTAINING TO THE VARIANCE
REQUEST.
At the conclusion of public testimony on the three
variance requests, the commission approved a motion to meet
in executive session to discuss litigation to which the
Borough was a party (P.C. 90-91). At the commencement of
the executive session the commission chairman stated:
With the motion that closed last evening's
meeting, directed us to hold an executive session
this noon, concerning possible legal litigation
with Sunset Development and the Borough, and at
this time we will recess this meeting and go into
executive session concerning Sunset Development's
requests. (P.C. 94).
At the conclusion of the executive session the
commission chairman stated:
At this time we will reconvene the regular
meeting, and during the executive session the
legal issues were discussed with our Borough
attorney (P.C. 94).
Appellant acknowledges that Sunset Development
Company had threatened litigation with the Borough if the
Elderly Housing Project proved not to conform to Borough
zoningrequirements.(Appellant's Brief, pp. 38-39). The
existence of pending litigation related to the Borough's
approval of the Elderly Housing Project, now consolidated .
with the present appeal, was.apparent to all concerned.
(Of course, the Borough denies that it is subject to any
liability for damages arising from the various zoning
it
actions it has taken with respect to the Kodiak Elderly
Housing Project. See, e.g., As 9.65.070(d)(3))
Appellant errs in asserting that the commission
had no authority to convene in executive session. Such
executive sessions are specifically authorized by statute.
AS 29.23.580 provides that meetings of all municipal.bodies
shall be public as-provided in AS 44.62.310. AS
44.62.310(a) requires that, except as it provides
otherwise, all meetings of municipal commissions are open
to the public. AS 44.62.310(c) then provides that certain
topics may be discussed in executive session. The excepted
subjects pertinent here are, "matters, the immediate
knowledge of which would clearly have an adverse effect
upon the finances of the government unit," AS
44.62-.310(c)(1) and, "matters which by law, municipal
charter, or ordinance are required to be confidential," AS
44.62.310(c) (3) . Under either of these provisions, as well
as under established common law principles, the commission
was entitled to consult with its attorney in executive
session regarding threatened or pending litigation related
to the performance of its duties.
While AS 44.62.310 does not expressly provide for
the confidentiality of attorney-client communications, the
-16-
majority of courts construing open meeting statutes that
have no such express provision, have held that such
communications, when they involve threatened or pending
litigation, are the proper subject of an executive
session. Sacramento Newspaper Guild v. Sacramento County
Board of Supervisors, 69 Cal. Rptr. 480 (Cal. App. 1968);
Oklahoma Association of Municipal Attorneys •v. State, 577
P.2d 1310 (0k. 1978); Fiscal Court of Jefferson County v.
Courier Journal and Louisville Times Company, 554 SW.2d 72
(Ky. 1977); Minneapolis Star and Tribune Company v. Housing
and Redevelopment Authority, 251 NW.2d 620 (Mn. 1976).
Sacramento Newspaper Guild, supra, best states the
rationale for these holdings:
The Brown Act, specifically Section 54953, broadly
encompasses 'all meetings'. Viewed as a statutory
microcosm, its demand is forthright, offering no
internal interstice for private lawyer-client
consultations. It is not a microcosm however, but
one element in a structure of constitutional and
statutory policies covering the powers, duties and
procedures of local agencies of government.
Another part of this legal structure is the
privilege attaching to confidential lawyer-client
communications.
Plaintiffs do not dispute the availability of the
lawyer-client privilege to public officials and
their attorneys. They view it as a barrier to
testimonial compulsion, not a procedural rule for
the conduct of public affairs. The view is too
narrow. The privilege against disclosure is
essentially a means for achieving a policy
objective of the law. The objective is to enhance
the value which society places upon legal
representation by assuring the client full
-17-
disclosure to the attorney unfettered by fear that
others will be informed. (Citations omitted).
The privilege serves a policy assuring private
consultation. If client-and counsel must confer
in public view and hearing, both privilege and
policy are stripped of value. Considered in
isolation from the Brown Act, this assurance is
available to governmental as well as private
clients and their attorneys.
The question, then, is whether the public meeting
requirement of Section 54953 abrogates by
implication the statutory policy assuring
opportunity for private legal consultation by
public agency clients; or, in equivalent terms,
whether the Brown Act supplies unmistakeable
evidence of a legislative intent to abolish that
statutory policy. That policy is just as
meaningful, as financially important, to public as
to private clients. Public agencies are
constantly embroiled in contract and eminent
domain litigation and, with the expansion of
public tort liability, in personal injury and
property damage suits. Large-scale public
services and projects expose public entities to
potential tort liabilities dwarfing those of most
private clients. Money actions by and against the
public are as contentious as those involving
private litigants. The most casual and naive
observer can sense the financial stakes wrapped up
in the conventionalities of a condemnation trial.
Government should have no advantage in legal
• strife; neither should it be a second class
citizen. We reiterate what was stated in the
supersedeas aspect of this suit. (Citation
omitted): 'Public agencies face the same hard
realities as other civil litigants. An attorney
who cannot confer with his client outside his
opponent's presence may be under insurmountable
handicaps. A panoply of constitutional,
statutory, administrative and fiscal'arrangements
covering state and local .government express a
policy that litigating public agencies strive with
their legal adversaries on fairly even terms. We
need not pause for citations to demonstrate the
obvious. There is a public entitlement to the
effective aid of legal counsel in civil
litigation. Effective aid is impossible if
-18-
opportunity for confidential legal advice is
banned.' 69 Cal. Rptr. 480, 488-490.
The exceptions to the public meeting requirement
quoted from AS 44.62.310 above parallel the rationale of
Sacramento-Newspaper Guild. One of the major reasons
stated in that case for allowing executive sessions_for
attorney-client communications is the adverse financial
effect on the government resulting from public disclosure
of such communications. AS 44.62.310(c) (1) authorizes
executive sessions to discuss matters whose disclosure
would have such adverse impacts. The California court also
determined that the public policy favoring public meetings
must be balanced against the policy favoring the
confidentiality of attorney-client communications evidenced
by rules of law establishing a privilege for such
communications. Alaska has adopted such .a rule, Alaska
Rules-of Evidence, Section 503, and AS 44.62.310(c) (3)
specifically excepts from public disclosure matters which
by law are required to be confidential. In Alaska, the
Supreme Court has asserted its inherent authority to govern
the attorney-client relationship,.see In Re: McKay, 416
P.2d, 823 (Ak. 1964), and by establishing by rule the
attorney-client privilege and attorneys' ethical
obligations to preserve client confidences has exercised
that inherent power to carve out of the public meeting
requirement an exception for attorney-client
-19-
communications. See Minneapolis Star and Tribune Company,
supra", 251 NW.2d 620, at 623-625.t,.
Finally, the legislature has adopted in AS
44.62.312(a) a statement of purpose to guide the courts in
construing. AS 44.62.310. This statement was adopted in
1972 (Chapter 98 SLA 1972), and was based upon California
Government Code Section 54950, see 1972 House Journal p.
158. California Government Code Section 54950 states the
purpose of the public meeting law which has construed to
allow an implied exception for attorney-client
communications in Sacramento Newspaper.Guild, supra, in
1968. Such prior judicial construction of a statute in
another jurisdiction furnishes persuasive guidance for the
construction of the statute when it is adopted in Alaska.
See, Zerbe v. •State, 578 P.2d, 597, 598 (Ak. 1978).
On the basis of the authorities cited and
discussed above, the commission clearly was authorized to
go into executive session to discuss with its attorney the
ramifications of pending and threatened litigation
pertaining to the variance applications before it. The
commission had a legitimate entitlement to inform itself
regarding the role of its action in such litigation. The
commission also had the authority, and the duty, to inform
itself of its legal options with regard to such pending and
threatened litigation, within the bounds of the standards
-20-
established for its action on variance applications. Such
options certainly were worthy of the Board's consideration
t:*
before acting on the variance applications.
Nothing in the record indicates that during the
executive session the commission went beyond the bounds of
discussing pending or threatened litigation, the stated
subject matter of that session. Appelant seeks by inuendo
to establish that the commission deliberated the merits of
the variances while in the executive session (although it
is not at all clear. that such deliberations in executive
session would have been contrary to law, see AS
44.62.310(d) (1)). However, municipal officials such as the
commissioners are presumed to conduct their affairs in
accordance with law. Liberati v. Bristol Bay Borough, 584
P.2d, 1118 (Ak. 1978). Appellant's speculation to the
contrary does not overcome this presumption.
I\7. APPELLANT'S CONTENTIONS REGARDING CONFLICT OF
INTEREST ARE WITHOUT MERIT.
The record reflects tbacommiseiouec Erwin was a
member of the Senior Citizens of Kodiak, Inc., and that the
Board of Directors of that-corporation held a meeting prior
to the Planning Commission meeting at which the Board
adopted a resolution supporting the Elderly Housing
Pro'ect, witb Mr. Erwin abstaining (P.C. 2, 39-40).
Appellant then leaps .to the conclusions that (1) this
association of Mr. Erwin's rendered him unable to make an
unbiased decision on the variance applications; and (2)
that Mr. Erwin heard testimony and discoasi'u.vbicb were
v
uot part of the record regarding the variances (Appellant � a
Brief, p. 38). .Both of .these assertions lack support, in
.the record. They can only be viewed as an attempt by
appellant to malign the administrative body from which this
appeal is taken rather then to argue from the facts
,
presented below. Appellant goes farther in her unsupported
allegations:
Mr. Erwin demonstrated bias in that he prejudged
issues of fact about parties in the case; `
demonstrated partiality evidence by a personal
bias and personal prejudice against Dayton and as
a representative and member of the non-profit
corporation, stood to gaio.oc lose by the decision
(Appellant's Brief, pp. 37-38).
These assertions are a distant exclursion from the
material that appelant cites in the record regarding Mr.
Erwin's interest in this matter. They have no bearing on
. -22-
the facts and law pertaining to. Mr. Erwin's participation
in the case, which are discussed below.
Salient among the facts is that Mr. Erwin's
association with the Senior Citizens of Kodiak, Inc., and
that organization's position regarding the Elderly Housing
Project, were fully disclosed on the record, and the record
.does not reveal that appellant ever objected to Mr. Erwin's
participation in the case. Appellant's arguments on
. conflict of interest should be deemed waived for failure to
•make such an objection.
• Moreover, the record demonstrates that the
commission conscientiously considered the issue of Mr.
Erwin's participation in the variance proceedings, and
concluded that he had no interest in the matter that should
disqualify him. For the court's convenience, that part of
the record (P.C. 2) is reproduced here:
CHAIRMAN BUSCH: Thank you Mr. Milligan One item
I think we need to clarify, and that is the issue
of Mr. Erwin since he does have an association
with the elderly housing project. And whether or
not, I believe we need to determine, whether or
not he does have a conflict of interest in this.
Mr. Erwin would you like to comment on that?
MR. ERWIN:- Well, if the board favors that I
should abstain from voting, why I'll gladly do so.
CHAIRMAN .BUSCH: Could. you state your association
or. your . .
MR. ERWIN: Right now I'm a board member of the uh
Kodiak Senior Citizens as well as a member of the
Planning and Zoning here.
-23-
CHAIRMAN BUSCH: Any other commission members like
to Comment?
MR. PUGH: Uh, well Gene:do you have any financial
interest at all in this Project?
MR. ERWIN: None whatsoever.
MR. PUGH: Do the Senior citizens have any
,financial interest in this Project?
MR. ERWIN: To my knowledge, no. Financial
interest to my knowledge, no.
CHAIRMAN BAKER: Mr. Erwin uh do you feel that you
can uh view this situation and review the
information here and uh provide an objective
outlook on it and uh vote without bias or
prejudice-.in it? •
MR. ERWIN: Well, from the information I read and
everything else why I believe I can give a fair
judgment on it.
CHAIRMAN BUSCH: Uh, I don't think you're mike is
on. Does the Commission feel they would like to ..
take any action concerning Mr. Erwin's position?
Mr:-Baker•moved•that-Mr.•Erwin be allowed to
participate.and.vote on this case. Seconded by
Mr. Bali. Motion-passed by•unanimous roll call
vote.
The commission's determination conformed to law
and was within its sound discretion. Alaska has a
comprehensive statutory scheme regulating conflict of
interest for public officials.- See AS 29.23.555, and AS
39.50. The thrust of this scheme is to prevent public
officials from acting on matters in which they have a
financial interest. AS 29.23,555, AS 39.50.090(a). The
record demonstrates that Mr. Erwin had no financial
interest in the granting of the variances. Allowing him to
-24-
participate in the case thus conformed to Alaska's conflict
of interest law. The commission ,also inquired into Mr.
Erwin's ability to consider the case fairly, given his
association with the Senior Citizen's group. Their finding
that he was so able was not an abuse of discretion and
therefore should be upheld. See Amidon-v. State, Opinion
No. 1999 '(December 21, 1979),. where the court held abuse of
discretion is the standard for reviewing a judge's decision
not to disqualify himself for cause.. The same standard
should govern this-court's review of a disqualification -
decision by a quasi-judicial body such as the Planning
Commission.
V. CONCLUSION
The Kodiak Island Borough Planning Commission,
presented with. applications to allow a housing project of
substantial benefit to the community, correctly applied the
law in determing that the variances required by the project
should be granted. The decision of the commission should
be affirmed.
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TEL. (907) 276-2221
IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
THIRD JUDICIAL DISTRICT
AT ANCHORAGE
LORRAINE DAYTON,. )
)
Plaintiff/Appellant,)
)
vs. )
)
KODIAK. ISLAND BOROUGH, et. )
al., . )
)
. Defendants/ )
Appellees. )
)
Case No. 3AN 78-3988 Civil
• OPPOSITION OF KODIAK ISLAND BOROUGH TO
• APPELLANT'S MOTION TO SUPPLEMENT THE RECORD
IN THE APPEAL OF VARIANCES V-78-056, . V-78-057 AND V-78-058
Kodiak. Island Borough joins in the opposition of
Sunset Development Company, Inc., to appellant's motion to
supplement the record in this matter. For the reasons statea
therein, such supplementation ms improper, especially as to
depositions taken after the decisions in question.
DATED this -2- day of December, 1979, at Anchorage,.
Alaska.
. .Y1 01m copy of thc
faregDivz un been n?Rilcd tali parties
on Ui Z d-ot. , 197 _2.
LAW OFFICES
RICHARD W. GARNETT, III.
Attorneys for Appellees
By /1441 ea,v
. Richard W. Garnett, III
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IN THE SUPERIOR COURT FOR THE STATE 4F2LuivikaAji.omgh
KODIAK, AIA,
THIRD JUDICIAL DISTRICT REenvEt
LORRAINE DAYTON, )
)
Appellant, . )
)
vs. )
)
KODIAK ISLAND BOROUGH, et al.,)
)
Appellees. )
N
. 78-3988
NOV 2 0 1979
#1114
N6849, income b
- ENTRY OF APPEARANCE
COMES NOW the LAW OFFICES OF RICHARD W. GARNETT,
and enter their appearance as attorneys of record for the.appellee
KODIAK ISLAND'BOROUGH, above named, and service may be had on such
appellee by delivering or mailing pleadings to the LAW OFFICES OF
RICHARD W. GARNETT; III, 900 W. Fifth Avenue, Suite 540, Anchorage,
laska 99501.
-771
DATED this day of November, .1979, at Anchorage,
laska.
177;.17. i. 011!.
rrtriles
1/ok.) 197 9.
112-cf46-1.--)41
LAW OFFICES, RICHARD W. GARNETT, III
Attorneys for Kodiak Island Borough
By Azt e
Richard W. Garnett, III
=
•
•
^|N THE SUPERIOR COURT FOR THE STATE OFALASKA
MARre
TH|F�DJUD|{�|ALO|STFl|CT `~�«»
fb
LU�AZNE DAYTON, '
' 1
\ Appe||ant, )
)
vs. )
l
KODIAK ISLAND BOROUGH, et. al. ,)
\
Appellee. )
)
No. 78_3988
NOV
6 1979
t" 114812elo21314167
ORDER PROVIDIN FOR APPEAL
CONFERENCE AND REQUIRING FILING OF BRIEFS
On April 11
a decision dated
(2)
rch 30
�
, |97g, appellant �|eda notice ofappea| from
, 19 74, of (|) ) the ldl District Court
----
1 | �
X CITY OF KODIAK - BOARD OF ADJUSTMENT ,an administrative agency.
The case on appeal was assigned to me for decision on June 14 , 19 73
Further proceedings in this case will be governed by Supreme Court Rule 45. An appeal
conference will bmheld on November 28 , 1979 , at 3:30 P.m. (which
all parties and counsel, if any, should attend) to set dates for completion of the record and
filing of briefs unless the parties can agree on the matters and comply with this. order in
which case no hearing will be held.
THEREFORE, IT IS ORDERED:
1. The parties shall meetat an agreed time and place and review the attached
Worksheet for Appeal Conference. If the parties are unable to agree upon a date for a con-
ference, then they shall meet at 1:30 p.m. on the' 14th day of November , 19 79
at the office of counsel for appellant (or ifappellant is not represented by an attorney, at
.the office of counsel for appellee) . The parties may 'meet at any time convenient to them
�
prior to theflnal day set for their conference. (fnotime is convenient, then acontinuance
must be obtained from the court; if a continuance is not obtained, those parties not represented
at the parties' conference will be deemed to have consented to any agreemnent reached at the
conference. Should appellant's counsel not hold the conference, any other party may, with
the consent of the parties other than.appellant, hold it and appellant will be deerned to have
consented to any agreement reached. If all the parties can agree regarding the matters
covered by the worksheet and confirm their agreement with the Trial Court Administrator
or his designee (i.e., the Calendar Clerk) and do not wish to have the court resolve a
dispute, they may execute the worksheet and file it two (2) full court days pricir to the
appeal conference in lieu of attending the conference. An appropriate order will immediately
issue. [NOTE: THE CALENDAR CLERK MUST APPROVE THE DATE FOR ORAL ARGUMENT
AND ANY DATE CHOSEN FOR AN EVIDENTIARY HEARING OR CONFERENCE WITH TH COURT
BEFORE THE WORKSHE T IS FILEDOR IT WILL BE DISAPPROVED. THE PARTJES SHOULD'
PHONE THE CLERK DURING THEIR CONFERENCE TO MAKE SURE THAT THE DATES THEY
HAVE CHOSEN ARE AVAILABLE FOR THE COURT. THE PERSON DELIVERING THE COM-
PLETED WORKSHEET TO THE COURTHOUSE SHOULD TAKE IT FIRST TO THE CALENDAR
CLERK TO OBTAIN WRITTEN APPROVAI RFFDRF F|| INC IT
2. If the parties cannot agree regarding a matter or wish to request some
action by the court towhich they cannot stiputate, appellant's counsel sha1[prepareand
all parties shall execute a joint staterient briefly describing their meeting, setting out
the matters upon which th oanagree, and separately stating the issues on which there .
is a disagreement. If appellant's counsel refuses to do so, or appellant is not represented
by counsel, any other party may prepare and file a joint statement without prejudice to
his right to have sanctions imposed pursuant to Paragraph 4. Each party shall then sepa-
rately file a written statement of his position on the issues.in disagreement. The joint
statement and the parties' respective statements of position shall be filed no later than
two (2) full court days before the day of the appeal conference. The parties are reminded
that any request for court action at the conference (other than setting a date mentioned in
-2-
f
the worksheet) must be in the form of a timely motion supported and opposed in accordance
with Rule 77, treating the conference date as the hearing date.
3. If the parties desire a settlement conference, they should obtain a time and
the name ofa judge available at that time from the Calendar Clerk, and fill in the appro-
priate blanks on the worksheet. The appeal conference cannot be used for a settlement
conference becaus�of the number ufna�ersscheduled.
4. Failure to comply with this order by filing either the completed worksheet
or the joint statement and individual statements indicating a dispute to be resolved at a
hearing shall result in the rescheduling of the appeal conference, i.e. it vvi|| not be held,
and may result, upon motion of a party aggrieved, in the assessment of costs including
attorney's fees against a party or his counsel; or, in an appropraite case, the imposition
ofa fine for contempt ofcourt. FaHure to bargain in good faith regarding the m.atters
covered in the worksheet shall be deemed a failure to comply with this order.
DATED at. Anchorage-, Alaska, this / day of • 1•:<1;..4" 1,1 f (it
197 .
Ci7DT!�'r,\l]` SE ,/
c''/ ^�`ies were mailed
to 1 o ' /;:ix ^� day of
.
CC: �^ / . ^/
kark.X.Zee 41.
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MES K. SINGLETON /
JUDGE OF T.HE SUPERIOR COURT
-3-
CKSON, EVANS,
:SCH & PAPAS
TOHNEYS AT LAW
650 H STREET
:HORAGE. AK 99501
(907) 276-2272
IN THE SUPERIOR
• DUPLICATE
COURT FOR THE STATE OF ALASKA
THIRD JUDICIAL
)
)
)
)
)
)
)
)
)
)
)
Case No.
LORRAINE DAYTON,
Appellant,
VS.
CITY OF KODIAK and KODIAK
ISLAND BOROUGH,
Appellees.
DISTRICT
NOTICE OF APPEAL
COMES NOW LORRAINE DAYTON, by and through her attorneys,
DICKSON, EVANS, ESCH & PAPAS, to appeal the decision of the City
Council of Kodiak sitting as a Board of Adjustment which affirmed
variances V-78-056 (parking spaces), V-78-057 (side yard set-
backs), and V-78-058 (lot area restrictions) previously granted
to Sunset Development Company by the Planning and Zoning Commis-
sion of the Kodiak Island Borough.
The Board of Adjustment of the City of Kodiak entered its
decision on these variances on March 30, 1979, The Planning and
Zoning Commission of the Kodiak Island Borough granted these
variances at the end of a public hearing held on October 19,
1978.
This appeal is made pursuant to Appellate Rule 45 and the
appeal is taken to the Superior Court of the State of Alaska.
This appeal is accompanied by a separate Statement of Points
on Appeal.
DATED this llth day of April, 1979, at Anchorage, Alaska.
DICKSON, EVANS, ESCH & PAPAS
/6/
By: Robert I. Shoaf
I hereby certify that a true and correct copy
of the foregoing document was sent to City of
Kodiak and Kodiak Island Borough at their
addresses of record on April 11, 1979.
Robert I. Shoaf
fxItd !stand bowx
KODIAK, ALAA
RECEIVTO
APR 1 3 1979
1,43191toiniegig2031485g
A
CKSON, EVANS,
iSCH & PAPAS
fTORNEYS AT LAW
880 H STREET
MORAGE, AK 99501
(907) 276 -2272
PLICATE
IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
THIRD JUDICIAL DISTRICT
LORRAINE DAYTON, )
)
Appellant, )
)
vs. )
)
CITY OF KODIAK and KODIAK )
ISLAND BOROUGH, )
)
Appellees. )
)
Case No.
r..
STATEMENT OF POINTS ON APPEAL
LORRAINE DAYTON is a resident of the City of Kodiak living
in the vicinity of the Kodiak Elderly Housing Project; her pro-
perty and other properties in the immediate vicinity of the
Kodiak Elderly Housing Project are adversely affected by the
variances granted.
The variances do not meet the applicable local and statutory
criteria for granting variances.
The City of Kodiak and Kodiak Island Borough failed to
follow the appropriate procedures for granting these variances,
to the prejudice of LORRAINE DAYTON, and the variances are there-
fore null and void.
IV
The decisions of the Board of Adjustment affirming the grant
of variances by the Planning and Zoning Commission are not sup-
ported by substantial evidence in the record and are an abuse of
discretion.
ICKSON, EVANS,
!SCH & PAPAS
rTORNEYS AT LAW
OSO H STREET
:HORAGE, AK 99501
(907) 276-2272
•
V
The decision of the Board of Adjustment and of the Planning
and Zoning Commission should be reversed because they are based
in large part upon an unconstitutionally vague standard of "in-
tended" use incorporated in the Kodiak Island'Borough Code.
VI•
As Defendants in a previous law suit (3AN 78-3988 Civil),
the City of Kodiak and the Kodiak Island Borough cannot use their
administrative governmental powers to extricate themselves from
their status as Defendants.
VII
The procedures followed in granting and affirming the var-
iances were an unconstitutional abridgment of due process, in
that they did not permit cross-examination of witnesses at the
Planning and Zoning Commission hearing, or provide any other
opportunity to refute the testimony offered.
VIII
By issuing an illegal Certificate of Occupancy to the Kodiak
Elderly Housing Project, the City of Kodiak demonstrated its bias
in this matter and prejudiced LORRAINE DAYTON'S rights as a
citizen and opponent to the variances. The decisions of the
Planning and Zoning Commission and of the Board of Adjustment
were arbitrary, as demonstrated by the use of private executive
sessions for debate of these matters and their failure to make
findings and conclusions concurrent with their decisions.
The Kodiak Island Borough and the City of Kodiak were biased
in favor of the recipient of the variances as demonstrated by the
failure of these public corporations to take enforcement action
against the illegal building.
IX
Members of the Board of Adjustment had ex parte contacts
with the parties to the appeal.
-2-
,
CKSON, EVANS.
i'SCH & PAPAS
CTORNEYS AT LAW
880 11 STREET
;HORAGE, AK 99501
(907) 276.2272
X
The Findings of Fact and Conclusions of Law entered by the
Board of Adjustment have not been adopted by vote of the Board.
XI
The Findings of Fact and Conclusions Of Law are mere post
hoc rationalizations of the Board of Adjustment's decision,
prepared by the Board's attorney. Acting in this crucial de-
cision role, the Board's attorney had impermissible ex parte
contacts with the private parties.
XII
The decision of the Planning and Zoning Commission, affirmed
by the Board of Adjustment, is not supported by substantial
evidence, is arbitrary and does not meet substantive and proce-
dural requirements of Alaska laws and of local ordinances.
XIII
The Board of Adjustment erred in denying portions of Lor-
raine Dayton's request to supplement the record prepared by the
Borough planning staff.
XIV
The Board of Adjustment was unduly influenced by the pre-
sence of an illegal building, which was the recipient of the
variances.
XVI
The Board of Adjustment heard and considered matters not in
the record on appeal in making their decision.
XVII
The Kodiak Island Borough failed to make an objective
assessment and report on the variance application.
XIX
The variances grant relief from self-inflicted hardships.
-3-
ICKSON, EVANS,
ESCH & PAPAS
TTORNEYS AT LAW
060 H STREET
ZHORAGE, AK 99501
(907) 276-2272
XX
The Kodiak Island Borough planning staff failed to comply
with the rquirements of KIBC 17.66.190 in addressing LORRAINE
DAYTON'S appeal to the Board of Adjustment.
XXI ,
The Planning and Zoning Commission's7decisions to grant the
variances, as affirmed by the Board of Adjustment, exceed the
authority to grant a variance from the Kodiak Island Zoning
Regulations as conferred by KIBC 17.66.010.
XXII
If the variances granted are legal within the Kodiak Island
Borough Code, then the Borough Code is unconstitutional in that
it exceeds the authorization found in Alaska enabling legislation
in Chapter 29.33 of Alaska Statutes.
XXIII
The property which is recipient of the variances is illegal-
ly zoned.
XXIV
LORRAINE DAYTON is entitled to a de novo hearing on these
variance requests.
At the time of the Planning and Zoning Commission approval
of the variances, the property which is the recipient of these
variances was illegally platted.
DATED this llth day of April, 1979.
DICKSON, EVANS, ESCH & PAPAS
By: Robert I. Shoaf
I hereby certify that a true and correct
copy of the foregoing document was sent to
City of Kodiak and Kodiak Island Borough
at their addresses of record this llth day
of April, 1979.
Robert I‘ Shoaf
-4--
In Re:,
NOTICE OF BOARD OF ADJUSTMENT'
Appeal of Lorraine Dayton of Variances
Granted to the Kodiak Elderly Housing
Project on October 19, 1978.
The Council of the City of Kodiak will hold a special meeting
on March 13, 1979, at the Kodiak High School Library at 7:30 p.m The
Council will be sitting as a Board of Adjustment in the Lorraine Dayton
vs. Sunset Development Company appeal.
.(1(1,t4t: island bona;i
KODIAK, ALA:'; :A
RECEIVE
(;1AR 11979
?i8193/101211 20344
4
CKSON, EVANS,
.SCH & PAPAS
:TORNEYS AT LAW
880 H STREET
;HORAGE. AK 99501
(907) 276-2272
In Re:
THE KODIAK CITY COUNCIL
SITTING AS A BOARD OF ADJUSTMENT
Appeal of Lorraine Dayton of Varainces
Granted to the Kodiak Elderly Housing
Project on October 19, 1978.
MOTION
COMES NOW, the Appellant, Lorraine Dayton, by and
through her attorneys, DICKSON, EVANS, ESCH & PAPAS and moves the
Board of Adjustment pursuant to Kodiak City Code, Section 17.01.
090(e) and moves the Board of Adjustment to reverse the decisions
of the Kodiak Island Borough Planning & Zoning Commission that
granted lot area, side yard and parking space variance to Sunset
Development Company for the Kodiak Elderly Housing Project.
These variances were granted on October 19, 1978 by Resolutions
V-78-058, V-78-057 and V-78-056.
RESPECTFULLY SUBMITTED, this 1st day of February, 1979,
at Anchorage, Alaska.
DICKSON, EVANS, ESCH & PAPAS
Attorneys for Appellant
By:
In Re:
THE KODIAK CITY COUNCIL
SITTING AS A BOARD OF ADJUSTMENT
Appeal of Lorraine Dayton of Variances
Granted to the Kodiak Elderly Housing
Project on October 19, 1978.
ORDER
Having considered the findings of the Planning and
Zoning Commission, the facts on the record, and the briefs of the
parties submitted to this body, the Board of Adjustment orders
that the decision of the Planning and Zoning Commission of the
Kodiak Island Borough in passing the following resolutions is
reversed:
requested.
Alaska.
•CKSON, EVANS.
:SCH & PAPAS
i'TORNEYS AT LAW
13130 Fl STREET
:HORAGE. AK 99501
(907) 278-2272
1. V-78-056 (a parking space variance).
2. V-78-057 (side yard variance).
3. V-78-058 (lot area variance).
This order has the effect of denying the variances
DATED this day of
1979, at Kodiak,
CHAIRMAN, BOARD OF ADJUSTMENT
By:
In Re:
C'KSON, EVANS,
ESCH & PAPAS
rroimErt-, AT LAW
11180 H STREET
.7.1406AGE. AK 99501
(907) 276-2272
BEFORE THE CITY COUNCIL OF KODIAK
SITTING AS A BOARD OF ADJUSTMENT
Appeal of Lorraine Dayton of Variances
Granted to the Kodiak Elderly Housing
Project on October 19, 1978
APPELLANT BRIEF
Submitted for Lorraine Dayton
By:
Robert I. Shoaf
DICKSON, EVANS, ESCH & PAPAS
880 "H" Street, Suite 200
Anchorage, Alaska 99501
TABLE OF CONTENTS
PAGE
Supplement to the Record
Appendix "A " -ii-
Summary of Arguments
BRIEF
STATEMENT I. STATEMENT OF FACTS 1
II. LORRAINE DAYTON AND OTHER RESIDENTS IN THE
NEIGHBORHOOD ADJACENT TO THE KODIAK ELDERLY
HOUSING PROJECT ON THE NORTH SIDE OF REZANOFF
DRIVE ARE ENTITLED TO A PROTECTION OF THEIR
PROPERTY VALUES BY ENFORCEMENT OF THE ZONING
REGULATIONS OF THE KODIAK ISLAND BOROUGH.
SCENIC VIEWS FROM THE PROPERTY AFFECT THE
PROPERTY VALUE.
8
III. THE BOARD OF ADJUSTMENT'S ROLE IN RESOLVING
THE APPEAL 10
IV. ACTION TAKEN BY THE PLANNING AND ZONING
COMMISSION ON RESOLUTION NO. V -78 -058,
GRANTING A VARIANCE TO SUNSET DEVELOPMENT
COMPANY FROM THE LOT AREA REQUIREMENTS OF
THE KODIAK ISLAND BOROUGH CODE §17.21.040
IS NOT SUPPORTED BY SUFFICIENT FINDINGS OF
RELEVANT FACTS, AND SHOULD BE REVERSED BY
THE BOARD OF ADJUSTMENT OF THE CITY OF
KODIAK
V. THE KODIAK ISLAND BOROUGH PLANNING AND
ZONING COMMISSION ERRED IN GRANTING A
VARIANCE FROM THE OFF- STREET PARKING
REQUIREMENTS, SECTION 17.57.010 OF THE
KODIAK ISLAND BOROUGH CODE; THEREFORE,
RESOLUTION NO. V -78 -056 SHOULD BE RE-
VERSED
VI. SUNSET DEVELOPMENT COMPANY FAILED TO
INTRODUCE SUBSTANTIAL EVIDENCE WHICH
WARRANTS GRANTING A SIDE YARD VARIANCE
TO PERMIT AN ENCROACHMENT ON THE REQUIRED
SIDE YARD FOR THE KODIAK ELDERLY HOUSING
PROJECT OF APPROXIMATELY SEVENTY -THREE
FEET. THE PLANNING AND ZONING COMMISSION
RESOLUTION NO. V -78 -057 SHOULD BE REVERSED
AND -THE VARAINCE GRANTING SIDE YARD DEVI-
ATION SHOULD BE DENIED
20
26
28
CONCLUSION 34
!CKSON. EVANS.
_SCH• & PAPAS
fTORNEYS AT LAW
!8O H STREET
:11ORAGE.AK99501
(907) 276-2272
SUPPLEMENT TO THE RECORD
Pursuant to Appellant's January 15, 1979 request to
supplement the record, the City of Kodiak agreed to include eight
(8) additional documents in the record. These documents are
listed as Items S - Z in Appellant's Brief and are attached as an
Appendix.
ICKSON. EVANS.
ESCH & PAPAS
vTORNEY5 AT LAW
1380 11 STREET
tHORAGE, AK 99501
(907) 278-2272
Item S:
Item T:
Item U:
Item V:
Item W:
Item X:
Item Y:
Item Z:
CKSON. EVAMS.
ISCH & PAPAS
rTORNEVS AT LAW
080 14 STREET
.:HORAGE. AK 99501
(907) 276-2272
APPENDIX "A"
(4) Lorraine Dayton, original letter to Sunset
Development and City communication responding to in-
quiries (12/29/77).
(5) Dayton letter to Borough, protesting build-
ing, requesting action (1/20/78).
(6) Mahoney response to Dayton Letter (2/8/78).
(7) Borough attorney response to Dayton request
(2/23/78).
(8) Borough response to Dayton request (3/24/78)
(10) Shoaf letter to Planning and Zoning Commission
(10/17/78 - Hand delivered 10/18/78).
(11) Shoaf letter to Sunset Development Company
(10/17/78 - Hand delivered 10/18/78).
(12) Dayton Notice of Appeal (10/26/78).
SUMMARY OF ARGUMENTS
Action by the Kodiak Island Borough on October 19, 1978
to pass Resolutions V-78-056, V-78-057, and V-78-058 was arbi-
trary and not supported by substantial evidence on the record.
These variances should be reversed.
CKSON. EVANS,
:SCH & PAPAS
I-ORNEYS AT LAW
800 H STREET
:HORAGE. AK 99501
(907) 276-2272
•CKSON. EVANS.
,.SCH & PAPAS
rTORNEY5 AT LAW
SOO H STREET
:HORAGE. AK 99501
1907) 276.2272
I. STATEMENT OF FACTS.
A. History of Project and Lorraine Dayton's objections.
Lorraine Dayton appeals lot area, side yard and parking
space variances granted to the Kodiak Elderly Housing Project by
the Planning and Zoning Commission of the Kodiak Island Borough
on October 19,. 1978. The standard of review for the Board of
Adjustment is found in Chapter 17.10 of the City of Kodiak ordin-
ances. These standards refer by implication to the criteria for
granting variances, which are found in Chapter 17.66 of the
Kodiak Island Borough Code. Ms. Dayton requests that the Board
of Adjustment reverse the variances granted or remand these pro-
ceedings to the Planning and Zoning Commission for further con-
sideration.
Ms. Dayton has opposed further construction of the
Kodiak Elderly Housing Project since December, 1977. Her primary
objection to the project is that because of its height and exces-
sive size the building obstructs her view of the Kodiak Harbor
and of the Russian Orthodox Church and creates an invasion of her
privacy. The project significantly affects the use and enjoyment
of her home: the objective measure of the project on Ms. Dayton's
home and the surrounding neighborhood is that it significantly
lowers the value of those properties.
The history of the site of the Elderly Housing Project
demonstrates why Lorraine Dayton feels that the project is over-
sized, too high and therefore should not be permitted to con-
tinue. Tract A of the project site, formerly designated as Lots
40, 41, 42, 43, 44, and 45, Block 2, Erskine Subdivision; and Lot
12, Block 1, Kodiak Township; was rezoned from R-3 to commercial
in 1974. A portion of the rezoning ordinance, No. 74-5-0,
states: "WHEREAS, the petition was considered approved by the
Planning and Zoning Commission on the 23rd day of February, 1974
after a public hearing was held thereon and concern was expressed
CKSON, EVANS.
:SCH & PAPAS
TORNEYS AT LAW
SOO H STREET
.F1ORAGE. AK 99501
(607) 276-2272
regarding the height above Rezanoff, the builders were agreeable
to the stipulation that the building above Rezanoff would be no
more than one story..."(Exhibit 12). This promise to limit the
height of improvements on the project site was generally known in
the community. Later in 1974, the City Clerk sent a letter to a
nearby property owner that a height restriction was placed on the
property and would be effective (Item T, p. 5). Mrs. Mildred
MacKay testified at the public hearing on October 18, 1978 that:
H ...I see the view that she can't see also and that that would be
the same thing with me, it has also blocked the scene. But we
thought, and this was also a rumor, that it would not go above
the street." (Transcript, p. 52).
In 1976, an additional lot (Lot 39, Block 2, Erskine
Subdivision) was zoned commercial so that it could be added to
the project site. The legality of that zoning is questioned by
Lorraine Dayton because the Borough failed to give timely notice
for the public hearing. (Item T). Notice for that public hear-
ing also did not indicate that the height limitation would be
considered. Id. The height limitation on the adjoining property
was never addressed during the rezoning of Lot 39. During 1976
the developers also applied for a height "exception". (Item J).
The developers later withdrew this request; height limitations on
the property were never discussed in public hearing and were
never waived by the Borough. Id. As a result of this history,r
Lorraine Dayton felt, at the commencement of construction of the
building, that it would be lim±ted to one story above Rezanoff
Drive.
During December of 1977, builders of the Elderly Hous-
ing Project began to frame the fourth floor. This floor exceeded
the limitation of one story above Rezanoff Drive. At that time,
Lorraine Dayton contacted both the developers and the Borough to
protest the height of the building. (Items S, T). Mrs. Dayton
-2-
CKSON. EVANS.
:SCH & PAPAS
TORNEYS AT LAW
000 H STREET
:HORAGE. Al( 99501
(907) 276-2Z72
asked the Borough to issue a stop work order until the legal
status of the building could be determined. Three months later,
the Borough responded that the building was legal and that the
Borough would take no action to prevent construction. (Item W).
After additional research into the history of the project,
Lorraine Dayton's attorneys filed suit, challenging the rezoning
of Lot 39 of the project site; and attempting to enforce the 1974
height limitation, the lot area, side yard, and parking space
requirements of the Kodiak Island Borough Code. In response to
this suit, Sunset Development Company initiated a request for
administrative action by the Kodiak Island Borough. (Exhibit 6).
Sunset Development Company petitioned for clarification
of the status of the project site: for clarification of the lot
area, side yard and parking space variances. In its Petition for
Action, Sunset Development Company did not admit that these vari-
ances were actually needed to legalize the status of the Elderly
Housing Project. (Exhibit 6, p. 2). Public hearings on these
matters were held on October 18th and 19th, 1978, by the Kodiak
Island Borough Planning and Zoning Commission. At that time,
there was considerable confusion as to the present status of the
project and the need for the variances. In a memorandum to the
Planning and Zoning Commission, Harry Milligan, writing for the
Planning Staff of the Borough, stated: "The thrust of the re-
quest is to clarify any procedural and/or technical errors asso-
ciated with previous approvals granted by a former Planning and
Zoning Commission in August, 1976." (Exhibit 17, p. 1). As
justification for his favorable vote, Commissioner Ball stated,
at the public hearing, "My reason was the same on all three, and
it was that we were just verifying the voting of the previous
commission." (Transcript, p. 129).
It is Lorraine Dayton's position on this appeal that of
the variances requested, which are vital to the legality of the
CKSON, EVANS,
:SCH & PAPAS
'TOHNEYS AT LAW
000 0 STREET
:HORAGE. AK 99501
(907) 276.2272
project, had not been granted previously. The Planning and
Zoning Commission members' confusion on these points demonstrates
the arbitrary nature of the decisions they reached.
B. Minimum Lot Area Requirements.
The density regulations of the Kodiak Island Borough
Code (KIBC) require that there be 1,000 square feet of lot area
for each unit of large multi-family residential structures.
Kodiak Island Borough Code, Section 17.21.040. The Elderly
Housing Project's 55 units require a 55,000 square foot lot. As
listed on the building permit issued by the City of Kodiak, the
lot area of the project is 40,717 square feet, which will permit
a 40-unit project. (Item E). Even with the additional 1,600
square feet required by the Planning and Zoning Commission during
its October meeting, the project site will support only 42 units.
Permitting an extra 15 units amounts to a 38% deviation from lot
area requirements. Sunset Development Company did not offer any
evidence that it had previously applied for, or had received, a
lot area variance for the project site. It is apparent from a
letter written by Robert Mahoney for the Borough that the lot
area of the project site was an issue affecting the feasibility
of buildings to be placed on that site in 1973. (Exhibit R). In
1973 the same developers, Fred Brechan and Louis Iani, were
attempting to build 44 housing units on Tract A of the project
site. We can infer that the Borough informed Mr. Iani and Mr.
Brechan in 1973, pursuant to Mr. Mahoney's letter, that the lot
area requirements of the Borough would not permit buildings of
these densities on the project site. It is also apparent that
during the 1976 consideration of the present project, parties
assisting the developers and agents of the developers were aware
of the lot area limitations on the project site. At the October,
1978, public hearing, Mr. Smoody of the Department of Housing and
Urban Development stated: "In this particular case, May 27,
-4-
CKSON, EVANS,
iSCH & PAPAS
• TORNEYS AT LAW
580 H STREET
1-10RAGE, AK 99501
(907) 276.2272
1976, we recognized that the project units were in excess of the
lot area requirements of zoning, local area." (Transcript, p.
25). Sunset Development employed a licensed architect, Mr.
McCool, to develop plans for the building. One of an archtect's
tasks is to study the land use criteria which will apply to a
given building. The requirements of the Kodiak Island Borough
Code for lot area are clearly stated.
C. Side Yard Requirements.
In 1976, Sunset Development Company requested an ex-
ception from the side yard requirements of the Kodiak Island
Borough Code. This exception was granted. The project develop-
ers'should have requested a variance from the side yard require-
ments. See KIBC, Chapter 17.66. The requirements for granting a
variance are different from those which apply to exceptions.
Additionally, the extent to which the building encroached on side
yards was never made clear during the 1976 hearings on the vari-
ances, as required by the Kodiak Island Borough. At the outset
of the October 18, 1978, public hearing on the side yard vari-
ance, the Planning Staff of the Borough stated that the encroach-
ment was approximately 61 feet. A day later, at the public
hearing on the evening of October 19, 1978, the Borough staff
revised its estimate to state that the encroachment was on a
required side yard of 75 feet. Given this confusion, it is clear
that the 1976 request for an exception did not consider what is,
in fact, required for a side yard variance.
D. Parking Spaces.
One parking space is required for each unit of a multi-
family project in Kodiak. Fifty-five units thus require fifty-
five parking spaces. As designed and built, the project has only
twenty-six parking spaces. Project developers have not previ-
ously requested parking space variances from the Kodiak Island
Borough.
-5-
CKSON. EVANS.
:SCH & PAPAS
TONNEYS AT LAW
800 14 STREET
HORAGE, AK 99501
(907) 276-2272
E. The Public Hearing.
Pursuant to Sunset Development Company's Petition for
Clarification, the Planning and Zoning Commission scheduled a
public hearing for October 18, 1978. At the outset of the public
hearing, Commissioner Erwin discussed his involvement as a member
of the Board of Directors of a non-profit corporation, Senior
Citizens of Kodiak, Inc. That corporation later presented testi-
mony at the public hearing in favor of the Elderly Housing Pro-
ject. Mr. Erwin attended a meeting of the Board of Directors
prior to the public hearing, at which time the Board adopted a
resolution strongly in favor of the Elderly Housing Project.
Despite this significant personal involvement in a corporation
directly affected by the success of the Elderly Housing Project,
Mr. Erwin did not disqualify himself from the Commission hearing.
(Transcript. pp. 3, 39).
The public hearing commenced without an initial staff
report. (Transcript, page 1). Following presentation of evi-
dence by members of the public, the public hearing was closed and
the Planning and Zoning Commission determined to reconvene at
noon on the next day for an executive session. The commission
did not engage in public debate on the evening of October 18,
1978, following the close of public hearing. The public meeting
was adjourned until the evening of October 19, 1978, at which
time the Commission was to render its decision. In an attempt to
satisfy the requirements of the Borough Code (Section 17.66.120),
the Planning Staff of the Kodiak Island Borough made a report
regarding the requested variances on the evening of October 19,
1978. Presenting the staff report, Mr. Milligan, for the
Borough, stated, "In response to your request of last evening,
the staff attempted to spend a good portion of today reviewing
the records from the 1976 hearing and to develop findings in
support of the requests that were presented...." (Transcript,
-6-
CKSON. EVANS.
:SCH & PAPAS
rTORNEYS AT LAW
OSO 11 STREET
:HORAGE. AK 99501
(907) 276.2272
p. 96; emphasis added). At the close of his testimony, Mr.
Milligan stated, "We feel the foregoing findings will serve to
clarify the technical errors in that original record which fail
to provide findings supportive of the action taken." (Tran-
script, p. 102). Following Mr. Milligan's presentation of the
report, the Planning and Zoning Commission reopened the public
hearing for comment on it. This public hearing had not been
given prior public notice, as required by the Kodiak Island
Borough Code. See KIBC, Section 17.66.100. After comments by
two parties in opposition to the variances requested, the public
hearing was closed. At that time, without further debate except
for negative comments made by Mr. Baker, the Commission voted on
the, lot area and side yard variances. Some debate preceded the
parking space vote. (Transcript, pp. 119-127). After its vote,
the Commission recessed briefly before proceeding with the re-
mainder of its agenda. The Commission then reconvened and again
began to address the previous request for variances. At this
time, each of Commission member stated the reasons for his vote.
Members stated that the Commission was simply clarifying previous
action by the Planning and Zoning Commission, and that they voted
in favor of a project already in existence. (Transcript, pp.
127-135).
After the close of the October 19, 1978 public hearing,
Lorraine Dayton made a timely appeal to the Board of Adjustment
of the City of Kodiak. Lorraine Dayton's appeal requests the
Board of Adjustment to reverse the variances granted by the
Planning and Zoning Commission.
-7-
CKSON, EVANS,
:SCH & PAPAS
7011NEYS AT LAW
a 00 14 STREET
:HORAGE. AK 99501
19071 276-2272
II. LORRAINE DAYTON AND OTHER RESIDENTS IN THE NEIGHBORHOOD
ADJACENT TO THE KODIAK ELDERLY HOUSING PROJECT ON THE
NORTH SIDE OF REZANOFF DRIVE ARE ENTITLED TO A PROTEC-
TION OF THEIR PROPERTY VALUES BY ENFORCEMENT OF THE
ZONING REGULATIONS OF THE KODIAK ISLAND BOROUGH.
SCENIC VIEWS FROM PROPERTY AFFECT THE PROPERTY VALUE.
In 1926, the United States Supreme Court rendered a
seminal decision which defined the general purpos4s of local pub-
lic land use control. The rationale of the Court's decision is
still in effect today:
In every ordered society, the State must act
as umpire to the extent of preventing one man
from so using his property or rights as to
prevent others from making their correspond-
ingly full and free use of their property and
rights.
Accordingly, the so-called police power is an
inherent right on the part of the public
umpire to prevent misuses of property or
rights which impair the health, safety, or
morals of others, or affect prejudicially the
general public welfare. Euclid v. Ambler Co.,
272 U.S. 365, 379 (1926).
Zoning law has developed since 1926 to include the pro-
tection of property values as a fundamental concept to public
welfare, which justifies the utilization of zoning powers at the
local government level.
The fundamental purpose of zoning, justified
because of its reasonable relationship to the
promotion of public welfare, health and safe-
ty, is the preservation of the character of
the neighborhood by excluding new uses and
structures prejudicial to the restrictive
character of the area and the gradual elimi-
nation of existing non-conforming structures,
trades and uses.
...[Z]oning regulations which preserve neigh-
borhood characteristics stabilize the value
of property, promote the permanency of desir-
able home surroundings and add to the happi-
ness and comfort, of citizens. McQuillan,
Municipal Corporations, §2524 (1977).
McQuillan further states:
Hence, one of the chief purposes of zoning is
to stabilize property uses and value, and in
some cases this may be the only purpose of a
zoning measure. Id. at §2525.
-8-
"CKSON. EVANS.
:SCH & PAPAS
ITOriNEYS- AT LAW
0130 H STREET
:HORAGE. AK 99501
(907) 276.2272
Ms. Dayton and others in the affected neighborhood
stated at the public hearing on October 18, 1978, that the Kodiak
Elderly Housing Project has an adverse effect upon their property
values and upon the use and enjoyment of their homes. These
property owners express legitimate opposition to the project,
especially since denial of the variances would serve to alleviate
the negative impact of the project on their property values.
-9-
CKSON. EVANS.
:SCH & PAPAS
'TOT4NEYS AT LAW
880 It STREET
:HORAGE. AK 99501
(907) 276-2272
III. THE BOARD OF ADJUSTMENT'S ROLE IN RESOLVING THE APPEAL
A. Standard of Review.
Lorraine Dayton makes this appeal based on the record
of prior proceedings before the Planning and Zoning Commission of
the Kodiak Island Borough. KCC § 17.10.080 (A). Documents
available to the Planning and Zoning Commission during its prior
deliberation are included as part of the record.
Sitting as a Board of Adjustment, the City Council has
the power to reverse or affirm a grant of variances in whole or
in part, including the power to reduce the extent of the vari-
ances granted. KCC §17.10.080 (B). "Any variance granted by the
Board of Adjustment shall be the minimum variance that will make
possible the reasonable use of the land, building or structure
which is equivalent to, but not exceeding, the use of similar
land buildings or structures permitted generally in the same use
district." Id. By virtue of the land use regulations adopted by
the Kodiak Island Borough, Sunset Development Company had an
obligation to apply for variances prior to commencing construc-
tion of the Elderly Housing Project. As a result of this prior
duty, the Board of Adjustment should provide for minimum vari-
ances that will make possible the reasonable use of the land
equivalent to, but not exceeding, the use of similar lands in the
same use district.
Chapter 17.03 of the Borough Code squarely places the
duty to request a variance on a developer. New buildings and
structures must conform to Code regulations before use or occu-
pancy. KIBC 17.03.020. The first chapter of Title 17 (Zoning)
of the Borough Code clearly states that the Borough has lot area
and side yard requirements, which must be met. KIBC 17.03.030.
In clear and simple terms, that chapter requires developers to
apply to the Borough Planning and Zoning Commission for approval
of deviations from Borough land use regulations. KIBC 17.03.050.
-10-
CKSON. EVANS.
;SCH & PAPAS
ILMNLYS AT LAW
SOO 8 STREET
:HORAGE. AK 99501
(907) 276-2272
If a developer fails to apply for the necessary approvals, and a
building plan is approved, violations of the Borough Code are not
condoned:
17.75.060. Violation not condoned by permit
issuance or plan approval. The issuance or
granting of a building permit or approval of
plans or specifications under the authority
of the building code shall not be deemed or
construed to be a permit for or an approval
of any violation of any of the provisions of
this title or any amendment thereto. No
permit presuming to give authority to violate
or cancel any of the provisions of this title
shall be valid except insofar as the work or
use which is authorized is lawful and per-
mitted. (Prior code Ch. 5 subch. 2 §20F).
Sunset Development Company failed to apply for neces-
sary variances prior to construction. Mr. Milligan mistakenly
signed the city building permit approving construction. Sunset's
mistake and Mr. Milligan's mistake do not condone a violation of
the Borough Code, and the existing construction does not justify
issuance of a variance.
For the purpose of these variances, the existence of
the building is irrelevant. Therefore, a portion of the task of
the Board of Adjustment is to determine whether or not inherent
features of the site of the project are so different, in compar-
ison to features of other land in the same district, as to re-
quire a variance from the land use regulations applying to that
district.
Because this appeal is on the record in a quasi-judi-
cial manner, the Board of Adjustment must apply a sequential
analysis in its evaluation of the action taken by the Planning
and Zoning Commission:
1. The Planning and Zoning Commission must render
findings to support its ultimate rulings.
2. Substantial evidence must support the findings of
the Commission.
-11
CKSON. EVANS.
:SCH & PAPAS
TORNEYS AT LAW
BOO H ST RE ET
:HORAGE. AK 99501
(907) 278-2272
3 The findings must support the Commission's action.
See, e.g., Topanga Association, Scenic Com. v. County of Los
Angeles, 522 P.2d 12 (California 1974).
Given this framework for analysis, principal issues
which arise in this case are: (1) which of the findings of the
Commission are relevant to the issues at hand; (2) whether these
relevant findings are supported by the record and; (3) which of
the relevant findings supported by the record support the action
taken by the Commission. Appellant submits that upon application
of these tests, the action of the Planning and. Zoning Commission
must be reversed and the variances denied.
The underlying theme of these analytical tests is that
the Planning and Zoning Commission cannot arbitrarily grant a
variance. An applicant must meet the specific criteria of the
Kodiak Island Borough Code in order to qualify for a variance,
and the burden of proof is on the applicant for the variance.
Topanga, supra, at 22.
Administrative bodies should grant variances only
rarely. The standard for awarding a variance, as embodied in the
Kodiak Island Borough Code, was created by legislative decision
of the Borough Assembly. This standard applies uniformly to all
land users in the borough. Property owners rely on those provi-
sions not only in making use of their own property, but also in
determining what are the permissible uses of neighboring proper-
ties. Zoning ordinances are, in part, designed to protect the
property values and the interests of all persons in a system of
predictable land development. Granting a variance which permits
substantial deviation from legislatively ordained rules guiding
land use interferes with the expectations of neighboring property
owners as to the types of use which can be made of nearby proper-
ties. In Kodiak, if a variance will have a substantial effect on
the neighboring property uses and on neighboring property values,
the variance must be denied. KIBC §17.66.140.
-12-
•CKSON, EVANS.
S'CF! & PAPAS
'TORNEY5 AT LAW
000 H STREET
:HORAGE, AK 99501
(9071 276-2272
Zoning
placed
impact
Testimony and documents presented to the Planning and
Commission clearly demonstrate that the oversized project,
on one corner of its lot, has a substantial negative
on the property values on nearby homes. Property value is
directly related to view, especially in a small scenic community
such as Kodiak. As will be demonstrated subsequently, the vari-
ances result in congestion and obstruction of view, which undeni-
ably reduce property values in adjoining areas.
It is important to remember that the applicant for the
variance has the burden to establish that a variance is war-
ranted. An applicant must meet four factual criteria found in
the Kodiak Island Borough Code at § 17.66.090 (B). Once testi-
mony establishes that granting of the variance will adversely
affect the property of persons in the vicinity of the applicant's
property, the applicant then has the additional burden of dis-
proving that adverse effect. In the present case, the variance
must be denied, because Sunset Development Company has failed
even to establish that unique physical features of the project
site prevent reasonable use of the property, much less that the
project will not have an adverse effect on property in the
vicinity.
B. The Planning and Zoning Commission's decision was
clearly arbitrary.
In order to determine whether the decision by the
Planning and Zoning Commission was arbitrary, one must examine
the record, and particularly the transcript of the hearing, in
order to evaluate the analysis utilized by the Planning and
Zoning Commission.
(1) The Planning and Zoning Commission never fully
understood the legal status of the property. The transcript is
replete with statements, by Commission members and by proponents
of the variances, that the variances had been previously granted
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:SCH & PAPAS
rTORNEYS AT LAW
000 H STREET
:HORAGE, AK 99501
(907) 276.2272
‘11
by the Commission. Several Commissioners felt they were clari-
fying those previous actions. For example:
(a) Chairman Busch: But yes, but yet supposedly
you're asking for variances that, you know,
you believe were granted at one time, is that
correct?
Bernard Dougherty: We believe that they were
granted, or at least dealt with by the Com-
mission, but they obviously are not -- they
are not clearly given in the records from
1976, and the doubt as to it is what has
caused the lawsuit, and that's why we felt
that coming back to the Commission for clari-
fication of these issues, or if the Planning
and Zoning Commission and the Assembly felt
that further action was necessary that that
action will be taken, any doubt would be
removed, that this public hearing or other
public hearings would be held, and the public
would have an opportunity to be heard, and
that the matter would be disposed of.
(Transcript, p. 118).
(b) Mr. Erwin: The previous Commission didn't
believe •there was any violations. They
agreed wholeheartedly that with all the
stipulations -- (then interjecting
Mr. Busch: Mr. Erwin, would you speak into
the microphone?
Mr. Erwin: The previous Commission didn't
believe there was any violations. They
agreed with the plans and anything else.
Mr. Robert Shoaf: With all respect, I would
submit that the decision was not brought to
their attention....
Mr. Erwin: I don't like to disagree with
you, I happen to be a member at that time,
and it was brought up to us, I recall it. I
examined the plans and the lot.
Mr. Shoaf: And you discussed the lot area
requirements as required by the Code?
Mr. Erwin: I am quite certain we studied it
thoroughly.
(Transcript, pp. 113, 114).
(c) In stating reasons for voting, Commissioners
stated:
Mr. Ball: My reason was the same on all
three, and it was that we were just verifying
the voting of the previous Commission.
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:SCH & PAPAS
fORNEYS AT LAW
640 H STREET
:110RAGE. AK 99501
(907) 276.2272
Mr. Erwin: The way I voted was...uh...
similar to the way I voted back in -- no when
it first came up back in August of '76.
During that time I see no reason for any
change. I was in favor of all these excep-
tions granted at that time.
(Transcript, p. 129. These statements were made
in reference to the lot area variance.)
There is nothing in the record to support the conclu-
sions of Commission members that these variances had been pre-
viously granted. Although the plans may have been studied at a
prior time, the Borough Codes have specific procedures and cri-
teria which must be met in order to obtain variances. Nothing in
the record establishes that these procedures and criteria were
met. The assumption by members of the Planning Commission that
they were simply clarifying previous variances is incorrect and
demonstrates that their decision was arbitrary, rather than in
accord with the guidelines established by the Kodiak Island
Borough Code.
2. Status of the building.
Another critical question which faced the Commission
during deliberations on this matter was whether they should
consider the existence of the building in their evaluation of
these variance requests. The developer had a duty to apply for
these specific variances prior to commencing construction (KIBC
17.03; 17.66; 17.75.060); thus, as a matter of law, the Planning
and Zoning Commission was obligated to consider these variances
as though the lot was vacant and construction had not yet begun.
However, the applicant led Commission members to believe that
their consideration should include the fact that the building was
already constructed:
Chairman Busch: Then your coming to us in
the same light as you came to the Commis-
sion -- uh -- in April -- not April, August --
it was August 13th, 1976, with a plan ...the
piece of property.
Bernard Dougherty: Well, I can see the point
that you are making, but I mean, the property
is not empty. I mean we have rustled [sic]
with the conceptual difficulty that you are
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'SCH & PAPAS
TORNEYS AT LAW
880 H STREET
'HORAGE, AK 99501
907) 216-2272
having, and it is just not possible for us
say that the building is not there. It is
there.
(Transcript, p. 118).
Each of the motions made to grant the variances acknow-
ledges that the building was under construction. (See Tran-
script, pp. 119, 123 and 124).
3. Commission's Deliberations.
A further indication of the arbitrary nature of the
action taken by the Planning and Zoning Commisson is the striking
absence of debate on these issues. At the close of the October
18 public hearing, the Commission did not debate the issues
before it. At the close of the October 19 public hearing, the
Commission did not debate the issues before it. Mr. Baker did
make a negative statement about the variances requested for the
project, but there was no response to his discussion and a vote
was immediately taken on the lot area variance. After that vote,
a vote was taken on the side yard variance, again without discus-
sion; and only brief discussion occurred prior to the vote on the
parking variance.
The Planning and Zoning Commission held an executive
session on October 19, 1978, prior to the public hearing that
night. If any discussion on these variances occurred, it oc-
curred during that closed session. The purpose of public meet-
ings is to keep the public fully informed of the reasons under-
lying the vote of the Commission. Findings of Fact produced
after a vote has been taken do not represent true debate on the
matter. Rather, they seem to be arbitrary manipulations of the
record, designed to support conclusions reached on unknown bases.
4. Executive Session, October 19, 1978.
Because Lorraine Dayton is suing both the Borough and
the City of Kodiak, she questions the legal ability of those two
bodies to use administrative processes to absolve their potential
liabilities. Ms. Dayton contends that the City wrongfully issued
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CKSON, EVANS,
:SCH & PAPAS
rTORNEYS AT LAW
530 H STREET
:HORAGE. AK 99501
(907) 276-2272
a building permit after the Borough erroneously asserted that the
project complied with the Borough Code. The City and Borough
compounded the error and the injury to Ms. Dayton, when they
refused her 1978 request to investigate the legality of the
project.
Apparently the Planning and Zoning Commission weighed
the Borough's potential liabilities during its October 19, 1978,
executive session:
Chairman Busch: With the motion that closed
last evening's meeting, directed us to hold
an executive session this noon, concerning
possible legal litigation with Sunset Devel-
opment and the Borough, and at this time we
will recess this meeting and go into execu-
tive session concerning--uh--Sunset Develop-
ment's requests. (Transcript, p. 94).
If the Commission debated the lot area and parking space vari-
ances, that debate occurred during the executive session. To the
extent that the debate resolved the issues based on an assessment
of the lesser of two evils of legal liability, the decision is in
error and should be reversed.
5. Staff Report.
The actions of the Kodiak Island Borough Planning Staff
further demonstrate the lack of objectivity which taints this
entire administrative process. Section 17.66.120 of-the Kodiak
Island Borough Code requires the Planning Staff to report to the
Planning and Zoning Commission on all variance requests . A
reasonable inference of the underlying intent of Section
17.66.120 is that the Planning Staff is required to make a neu-
tral assessment of the requested variances in order to provide
the Planning and Zoning Commission with necessary technical
information. This report also serves the public by informing it
of facts relating to the requests before the public hearing, and
permitting more accurate response to those facts or asserted
facts at the public hearing. Kodiak Island Borough's Department
of Planning and Community Development did not prepare a report
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:SCH & PAPAS
"rORNEYS AT LAW
680 H STREET
.HORAGE. Al( 99501
(907) 276-2272
until after the close of the regularly scheduled public hearing
on these variance requests. A report was prepared on October 19,
1978 and presented to the Planning and Zoning Commission that
evening. (Exhibit 17). The report repeated the confusion over
what action was being requested. "The thrust of the request is
to clarify any procedural and/or technical errors associated with
previous approvals granted by the former Planning and Zoning
Commission in August, 1976." (Id., page 1). "We feel the fore-
going findings will serve to clarify the technical error in that
the original record which failed to provide findings supportive
of the action." (Id., page 4).
Not only does the staff report confuse the issues and
provide a late report to the Planning and Zoning Commission, the
staff's oral presentation indicates the lack of objectivity in
preparation of the report. "Staff report by Mr. Harry Milligan:
Yes Mr. Chairman, in response to your request, of last evening,
staff attempted to spend a good portion of today reviewing the
records from the 1976 hearing, and to develop findings in support
of the requests that were presented, and an analysis based upon
that '76 action and the further continued testimony for clarifi-
cation and preservation of record heard last evening." (Tran-
script, p. 96; emphasis added). Rather than preparing an objec-
tive analysis of the issues raised, the Planning Department
prepared a report with one goal in mind: to
support of the request for variances.
Milligan's statement, it appears that this
develop findings in
Judging from Mr.
goal was in accord
with the requests of the Chairman of the Planning and Zoning
Commission. It is clear that the Commission made up its mind
without debate; requested the Planning Staff to provide it with
facts to support its conclusions; and held the October 19, 1978,
public meeting as a formality, not as a fact finding process,
despite Code requirements.
-18-
6. Mr. Erwin's conflict of interest.
A final indication of the arbitrary nature of the
Planning and Zoning Commission's actions is the fact that Mr.
Erwin, a Commission member, did not disqualify himself from the
deliberations. Mr. Erwin was a member of the Board of Directors
of the non-profit corporation Senior Citizens of Kodiak, Inc,
whose Board of Directors held a meeting prior to the Planning and
Zoning Commission meeting and adopted a resolution strongly in
favor of the Kodiak Elderly Housing project, Mr. Erwin attended
that meeting but abstained from voting. Although"Mr. Erwin may
not have a financial interest in the project, his involvement in
a corporation which had a substantial and strongly stated posi-
tion in favor of the project clearly demonstrates his inability
to make an objective analysis of the variance applications.
In conclusion, the record repeatedly demonstrates that
the Commission's decision was based not on the criteria estab-
lished in the Kodiak Island Borough Code, but on personal feel-
ings and misconceptions which were truly arbitrary in nature.
The decision does not withstand the scrutiny of the law. The
variances should be denied.
CKSON, EVANS,
SCH & PAPAS
'TORNEYS AT LAW
BOO 14 STREET
:HORAGE. AK 99501
(907) 276.2272
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CKSON, EVANS,
:SCH & PAPAS
r I OHNEYS AT LAW
880 H STREET
:HORAGE, AK 99501
(907) 276-2272
e
IV. ACTION TAKEN BY THE PLANNING AND ZONING COMMISSION ON
RESOLUTION NO. V-78-058, GRANTING A VARIANCE TO SUNSET
DEVELOPMENT COMPANY FROM THE LOT AREA REQUIREMENTS OF
THE KODIAK ISLAND BOROUGH CODE §17.21.040 IS NOT SUP-
PORTED BY SUFFICIENT FINDINGS OF RELEVANT FACTS, AND
SHOULD BE REVERSED BY THE BOARD OF ADJUSTMENT OF THE
CITY OF KODIAK
Section 17.21.040 of the Kodiak Island Borough Code
requires that multi-unit residential projects of the size of the
Kodiak Elderly Housing Project have 1000 square feet of lot area
for every dwelling unit in the project. As proposed and built,
the Kodiak Elderly Housing Project has fifty-five units, requir-
ing a minimum lot of fifty-five thousand square feet. In order
to grant a variance, the Planning and Zoning Commission of the
Kodiak Island Borough must find, as a matter of record, that the
criteria established in § 17.66.090 (B) of the Kodiak Island
Borough Code have been met. Futher, these findings must
supported by the record.
The purposes of the minimum lot area requirements
the Kodiak Island Borough Code appear to be (1) regulation
be
of
of
residential densities and (2) regulation of the size of build-
ings. As a legislative decision, the Borough Assembly chose to
regulate density by the rough measure of living units compared to
lot area. This type of measurement pervades the Borough Code and
is used to regulate residential properties ranging from those
supporting single family units to those supporting the most dense
multi-family units. Densities proposed by Sunset Development
Company for the project are not Permitted anywhere in Kodiak.
Fifty-five dwelling units placed in a lot which will support 40.7
dwelling units exceeds the maximum density permitted anywhere in
the Kodiak Borough by thirty-eight percent (38%).
Two findings of fact reached by the Planning and Zoning
Commission in granting the lot area variance address the wisdom
of the legislative decision to use the measure of dwelling units
per lot area as a means of controlling residential density. The
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CKSON. EVANS.
:SCH & PAPAS
"TORNEYS AT LAW
000 H STRECT
:HORAGE, AK 99501
(907) 276•2272
(Th
Planning and Zoning Commission does not have the authority to
make this type of decision which is, in fact, a legislative
amendment of the Kodiak Island Borough Code. When counted in
order presented, findings three (3) and five (5) for resolution
V-78-058 are irrelevant to the issue at hand. Rather than apply-
ing the criteria adopted by the Borough Assembly, the Commission
attempts to re-write the requirements of the Borough Code.
Additionally, these conclusions are not supported by facts pre-
sented in the record of this case. The conclusion that conven-
tional dwelling units support more persons per unit than the
units of the Elderly Housing Project requires both an initial
finding of the average occupancy of normal rental multi-family
units in Kodiak and the projected occupancy per unit of the
Elderly Housing project. Neither of these subfacts appear in the
record. Even if the findings number three and five of the Com-
mission were relevant, they would not serve to support the con-
clusion reached, because they are not supported by the record.
Once it is established that findings three and five are
not appropriate to support the conclusion of the Commission
granting the variance, the only remaining substantive finding by
the Commission is number four, which states: "Whereas, the
Commission found the proposed site is ideally located to provide
community services and facilities necessary to support the hous-
ing needs of elderly and handicapped persons...." (Exhibit 23).
Finding number four is irrelevant as it fails to address the
criteria established by the ordinances of the Borough for grant-
ing a variance. Section 17.66.090 (B) (1) of the Kodiak Island
Borough Code states: "That there are exceptional physical cir-
cumstances or conditions applicable to the property or to its
intended use or development which do not apply generally to other
properties in the same land use district." The Commission failed
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:SCH & PAPAS
TCHINEYS AT LAW
000 H *TR(ST
.HORAGE, AK 09501
(907) 276-2272
to find any exceptional physical circumstances or physical condi-
tions applicable to the property which distinguish it from other
properties in the same land use district. The variances are
normally granted when inherent physical qualities of the piece of
property, combined with restrictive land use regulation, create
practical difficulties or unnecessary hardships on the owner of
that property. The intent of a variance is to uphold the valid-
ity of the underlying zoning law, while protecting the ability of
individual property owners to realize a reasonable use of their
property. See Nucholls v. Board of Adjustment of City of Tulsa,
560 P.2d 556, 559-560, (Oklahoma 1977); Erickson v. City of Port-
land, 496 P.2d ,726, 729 (Oregon App. 1972). In order to meet
this first criteria of the zoning ordinance of the Borough, the
developer must show that exceptional conditions affect its pro-
perty differently from the way they affect other properties in
the district, to such an extent that unnecessary hardship is
created. Topanga, supra, at 21. Sunset Development Company
completely failed to provide the Commission with comparative data
of this type. At no point during its testimony did Sunset refer
to the topographical features of other property in the same
district. Additionally, the only topographic or physical feature
of the subject property referred to in the record is the slope of
the land between Rezanoff Drive and the subject property. This
testimony was presented with reference to the side yard variance,
not the lot area variance. After initial confusion as to where
the slope lay, it was finally determined that the extreme slope
cited by Sunset as a reason for granting the variance was, in
fact, within the right-of-way for Rezanoff Drive and was not a-
part of the subject property. (Transcript, pp. 60, 70-1).
The conclusion reached by the Planning and Zoning
Commission in Resolution V-78-058 did not address the testimony
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:SCH & PAPAS
TORNEYS AT LAW
080 H STREET
NC/RAGE. AK 99501
19071 278-2272
presented by Sunset Development Company that the land use inten-
sity requirements of the United States Department of Housing and
Urban Development and the availability of mortgage money for this
project required that the development have at least fifty-five
dwelling units. The Commission was correct in omitting any
findings regarding this matter from its resolution because that
information is clearly irrelevant to the issues at hand. When a
property owner purchases a piece of property knowing the zoning
restrictions on that property, the owner cannot subsequently
justify a request for a variance based on hardship caused by
those very regulations. See, e.g., Minney v. City of Azusa, 330
P.2d 255 (California 1958); appeal dismissed 359 U.S. 436 (1959).
Purchasers have constructive notice of applicable land use regu-
lations. Levy v. Board of Adjustment of Arapahoe County, 369
P.2d 991, 994-995 (Colorado 1962). Successors in interest for
Sunset Development Company, Louis Iani and Fred Brechan, not only
purchased the project site with constructive and perhaps actual
notice of the zoning regulations of the Borough; they also pro-
cured a re-zoning of that property to its current zoning status.
These developers cannot now complain that the land use regula-
tions applicable to the project site are inappropriate. Their
plight is self-inflicted.
It should be noted that the Kodiak Island Borough Code
requires a comparative analysis between the applicant's property
and other properties of similar use classifications in the juris-
diction. The mortgage market and the land use intensity numbers
of HUD apply equally to all properties within the zoning juris-
diction of Kodiak. Necessities created by those two factors are
not unique to the subject property. Section 17.66.09 (B)(1) of
the Kodiak Island Borough Code requires that in order for hard-
ship to justify a variance, those factors must be ones "which do
not apply generally to other properties in the same land use
district." See also AS 29.33.110.
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CKSON. EVANS.
:SCH & PAPAS
'TORNEYS AT LAW
080 H STREET
:HORAGE. AK 99501
(907) 276-2272
The grant of a variance from the lot area requirements,
of the Borough Code fails to satisfy section 17.66.140 of the
Code, in that the record demands the conclusion that the granting
of the variance will adversely affect the
the vicinity of the applicant's property.
resolution itself and also from testimony
property of persons in
It is clear from the
provided at the public
hearing that the project site would support only forty dwelling
units. If the project were reduced in size by fifteen dwelling
units, and brought into conformity with the Code, then the top
two stories of the project, whiCh run parallel to Rezanoff Drive,
would be removed. The fourth and fifth floors of the project
have a significant impact on the views of the Kodiak Harbor and
the Russian Orthodox Church from residences north of Rezanoff
Drive. Compliance with the density regulations would remove the
obstruction to the view and reduce the adverse effect on property
in the vicinity of the project site.
Once it is established for the record, by public testi-
mony, that creating a variance will have a negative effect on
nearby property, the applicant's burden of proof includes the
necessity of establishing that the adverse effect will not occur.
Again, the conclusions reached by the Planning and Zoning Commis-
sion and the testimony presented by proponents of the project
failed to meet this burden.
Action by the Planning, and Zoning Commission in ap-
proving resolution V-78-058 requires Sunset Development Company
to add an additional lot of sixteen hundred square feet to the
project site. With the addition of this lot, the project site
would support forty-two units. The deviations from the require-
ments of the Code are still so substantial as to require denial
of the variances. It is interesting to note, in regard to
addition to the Petition by Sunset Development Company,
principals of that Company may have had ex parte contacts
-24-
this
that
with
CKSON. EVANS.
,SCH & PAPAS
TORNEYS AT LAW
5130 11 STREET
.HORAGE, AK 99501
(907) 276.2272
the Planning and Zoning Commission in order to arrange inclusion
of that requirement in the variance. During the public hearing,
Mr. Perez stated, "Uh -- Mr. Chairman, as long as I believe as
long as Mr. Iani and Mr. Brechan are here, I believe we should
ask them if they would like, what their intent is on this, I'd
rather ask them (can't decipher)." (Transcript, p. 121; emphasis
added). Because the Planning and Zoning Commission is to make an
objective assessment of the Petition for variance, sitting in a
quasi-judicial manner, ex parte contacts, such as one inferrable
from Mr. Perez's statement, are inappropriate and indicate that a
fair hearing was not held.
Some of the testimony indicates that Mr. Pugh and Mr.
Busch were swayed to vote for the lot area variance by the fact
that the location of the project is suitable for elderly tenants.
In applications for variances, the benefit to the community of
the intended use is irrelevant. Topanga, supra, at 21. The
general guideline to be applied is whether unique circumstances
coupled with land use regulations create an undue hardship for
the owner of the property. The intent of variances is to protect
the right of each property owner to reasonably develop his prop-
erty. For the purposes of this variance application, the correct
evaluation centers on the applicant's hardship in finding a
reasonable use for the project site, not on the potential hard-
ship for the elderly citizens, who would lose the availability of
fifteen housing units in Kodiak if the project conformed to the
minimum lot area requirements of the Borough ordinance. (See,
e.g., Broadway, Laguna, Vallejo Ass'n. v. Board of Per. App., 427
P.2d 810, 15 (California 1967).
Neither the findings of fact nor the record of the
public hearing support the grant of the variance to Sunset Devel-
opment Company for a thirty-one percent deviation from the mini-
mum lot area requirements. For this reason, the decision of the
Planning and Zoning Commission should be reversed.
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CKSON. EVANS,
:SCH & PAPAS
'TOHNEYS AT LAW
SOO H STREET
HORAGE. AK 99501
907) 276-2272
V. THE KODIAK ISLAND BOROUGH PLANNING AND ZONING COMMISSON
ERRED IN GRANTING A VARIANCE FROM THE OFF-STREET PARK-
ING REQUIREMENTS, SECTION 17.57.010 OF THE KODIAK
ISLAND BOROUGH CODE; THEREFORE, RESOLUTION NO. V-78-056
SHOULD BE REVERSED
Appellant's major objection to the granting of parking
space variances is that the Commission made conclusions of fact
not supported by the record. The Commission found that approxi-
mately thirty-four percent (34%) of the elderly and handicapped
persons residing in the Borough have motor vehicles. Apparently
this figure comes from a 1974 survey of elderly citizens in
Kodiak, which is five years out of date and is limited solely to
elderly persons. The project is also designed for use by handi-
capped persons. (Transcript, p. 38). There was no evidence
presented to demonstrate the proportion of automobile ownership
among handicapped persons.
Another fallacy in the findings of the Commission is
that no comparison was made between the percentage of automobile
ownership by elderly and handicapped persons residing in the
Borough and the automobile ownership by other persons residing in
the Borough and occupying rental housing. Because the Borough
Assembly has ordained that one parking space shall be provided
per multi-family unit, a comparative analysis is necessary before
the Commission can justify deviation from those legislative
standards.
Additionally, Mr. Smoody of HUD stated that the project
will be open to persons other than the elderly and handicapped,
in the event that those groups do not provide a sufficient number
of tenants to fully occupy the building. (Transcript, p. 29).
The Planning and Zoning Commission failed to account for this
additional traffic and parking demand in granting the variance.
The Planning and Zoning Commission also failed to assess the need
for visitor parking and access by emergency vehicles.
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CKSON. EVANS,
:SCH & PAPAS
TOUNEYS AT LAW
BO H STREET
.HORAGE. AK 99501
■907) 276-2272
Appellant also contends that the Planning and Zoning
Commission operated on the erroneous assumption that it could,
from time to time, check the project to insure that the thirty-
seven parking spaces remained adequate:
The Planning Official shall from time to time
check the site to insure that thirty-seven
spaces are adequate. If it is found that
additional spaces are needed, he shall report
the need to the planning and zoning commis-
sion. The commission may then, if they [sic]
deem it necessary, change the variance to
require all or part of the parking spaces re-
quired. [Exhibit 21].
The Kodiak Island Borough Code does not permit the
Planning and Zoning Commission to reserve jurisdiction over a
variance request, as it attempts to do here. Additionally, the
Borough Code does not authorize the Planning and Zoning Commis-
sion to initiate changes in variances previously granted. While
permitting thirty-seven parking spaces where the ordinance re-
quires fifty-five, the Planning and Zoning Commission was aware
that future use might require the full complement of fifty-five
parking spaces. The Planning and Zoning Commission erred in
assuming that it would subsequently be able to require the pro-
ject owner to meet the additional need. Because the Commission's
action significantly relied upon this erroneous assumption, the
variance should be reversed.
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CKSON, EVANS,
:SCH & PAPAS
'fORNEYS AT LAW
080 H STREET
:HORAGE. AK 99501
(907) Z76 -2272
VI. SUNSET DEVELOPMENT COMPANY FAILED TO INTRODUCE SUB-
STANTIAL EVIDENCE WHICH WARRANTS GRANTING A SIDE YARD
VARIANCE TO PERMIT AN ENCROACHMENT ON THE REQUIRED SIDE
YARD FOR THE KODIAK ELDERLY HOUSING PROJECT OF APPROXI-
MATELY SEVENTY -THREE FEET. THE PLANNING AND ZONING
COMMISSION RESOLUTION NO. V -78 -057 SHOULD BE REVERSED
AND THE VARIANCE GRANTING SIDE YARD DEVIATION SHOULD BE
DENIED.
As in the preceding analysis of the lot area variance,
Sections 17.66.090 and .140 of the Kodiak Island Borough Code
must guide the analysis of the Board of Adjustment in evaluating
the side yard variance. The Board of Adjustment must compare the
project site and its intended use to other similarly classified
properties in Kodiak in order to determine whether unique fea-
tures of the project site necessitate granting the variance.
Sunset Development Company must demonstrate that no feasible
commercial uses of the property are available to it.
Testimony presented in favor of the side yard variance
at the October 18, 1978 public'hearing focused primarily on the
sloping conditions of the lot. Mr. Dougherty testified, "Because
of the unusual shape of the lot, the building has to be located
on the lot where it is. The lot is narrow and sloping...."
(Transcript, p. 58).
As Commissioner Baker pointed out, "...The question of irregular
shape of lot refers to the fall of the adjoining property between
the street level and this property, as I recall, twenty five feet
and forty feet." (Transcript, p. 60).
Subsequent testimony by Louis Iani, project developer,
clearly establishes that the severe slope between Rezanoff Drive
and the building is not actually on the property which is part of
the project site.
Mr. Baker: " - -uh- -would the- -uh - -, that
alludes back to my earlier question, the toe
of the slope as it extends onto the property
in question, -- uh - -is there an encroachment
there, on your property."
Mr. Iani: "You mean as far as on the state
land ?"
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.SCH & PAPAS
'TORNEYS AT LAW
080 H STREET
.HORAGE. AK 99501
(9071 275•2272
Mr. Baker: "No, as far as the slope on your
property."
Mr. Iani: "I--I--I can't really answer that
completely Don, but I'm pretty sure that it's
awful close to none. Because the state
acquired, I'm familiar with that when they
built Rezanoff the State acquired all the
property governing the slope excepf—in my
particular area where I live personally and
they had to build a retaining wall. And on
all the rest of it, I'm sure they picked up
all the property as far as the slope is
concerned."
Mr. Baker: "In other words, it would appear
based on your statement, if I understand you
correctly that the toe of the slope on Reza-
noff did not, in fact, extend to your prop-
erty?"
Mr. Iani: "I--I'm very sure it didn't."
(Transcript p. 70 - 71).
Mr. Iani's testimony illustrates that the slope problems on the
project site are no worse than slope problems elsewhere in Kodiak
and, in fact, that other properties have greater problems with
the slope. Testimony presented by Sunset Development Company
does not establish a clear correlation between the alleged slope
and rock formation problems and the need to completely eradicate
the required seventy-five foot side yard. The slope and rock
formations are along the northern edge of the project site prop-
erty, while side yard infringement is along the western edge. It
is clear that if the project left the side yard as required, the
building would not encounter as much of the slope as it currently
does. It appears, from diagrams submitted, that the building has
the minimum rear yard along its northern border. The architect
had chosen to incorporate the slope of the land, to the extent
that it exists, into the building design to the maximum extent
permitted by the zoning regulations. No evidence was presented
to demonstrate how the slope affected the project design, espe-
cially why it necessitated such substantial encroachment on the
required side yard.
It is apparent that Sunset Development Company did not
evaluate alternative designs for the project site. Mr. McCool,
-29-
CKSON. EVANS.
SCH & PAPAS
TORNEYS AT LAW
880 H STREET
HORAGE. AK 99501
907) 276.2272
who served as architect for the project, testified during the
public hearing on the side yard variance that he had been mis-
taken about the required side yards in Kodiak.
Mr. Baker: "As architect, were you aware of
the side yard problem based on the Kodiak
ordinances?"
Mr. McCool: "Yes I was. The business zon-
ing, it was my understanding that there was
zero setback." [Transcript, p. 63).
In designing the building, Mr. McCool was not aware that the
Kodiak Island Borough Code required a substantial setback for the
building.
Apart from the lack of substantial evidence supporting
the need for a side yard variance, the Borough's initial approach
to this question further underscores the arbitrary nature of the
Planning and Zoning Commission's actions. At the October 18,
1978, public hearing, members of the Planning Staff stated that
the project site required a sixty-one foot side yard. On October
19, 1978, the Planning Staff revised its estimate, stating that
the side yard was, in fact, seventy-five feet. This confusion
clearly demonstrates that the prior report required by statute
should have been prepared by the Planning Staff. It further
demonstrates that the assessment of the Planning and Zoning
Commission was based, in large part, upon erroneous assumptions
as to the actual variance being requested.
Testimony presented at the public hearing indicated
several negative aspects of the side yard variance request. Mr.
Van Orden testified that he had been informed by an appraiser
that the Elderly Housing Project would have a negative effect on
the property value of his home at 321 Erskine. (Transcript, p.
63). Representatives of Ms. Dayton testified that the extended
encroachment in the side yard had a negative impact on the visual
environment of the neighborhood; interfered with the privacy
rights of the adjoining property to the west; and was contrary to
-30-
CKSON, EVANS.
.SCH & PAPAS
TORNEYS AT LAW
060 ti STREET
'HORAGE, AK 99501
1907) 276-2272
the requirements of the comprehensive plan, which requires a
blend of commercial and residential structures in Kodiak (Tran-
script, p. 66-70). The oversized building, placed in an irreg-
ular position on this lot, is totally out of character with the
nearby residential neighborhood.
In adopting Resolution No. V-78-057, the Planning and
Zoning Commission again made findings of fact. These findings of
fact failed to cite the substantial evidence necessary to meet
those criteria of the Kodiak Island Borough Code which permit
granting a substantial side yard variance. One reason offered by
the Planning and Zoning Commission for its decision was that the
project site is on a building location which provided the best
utilization of the lands. This finding is not supported by the
facts. The architect admitted, during the public hearing, that
he had made a mistake about the side yard requirements; and he
did not testify that alternative building designs had been con-
sidered. Proponents of the variance failed to demonstrate that
other placements of the building were impossible. Arbitrary
building location on a site is not a factor, within the guide-
lines created by the Kodiak Island Borough Code, which can jus-
tify a variance. Although the Borough Code permits the Planning
and Zoning Commission to consider the intended use of the prop-
erty, similar language is usually interpreted to mean the general
use intended for the property, and not a specific building or
structure. See, e.g., Broadway, Laguna, Vallejo Ass'n. Board of
Per. App., 427 P.2d 810, 816 (Ca. 1967):
"[Untended use of the property" does not
encompass the contemplated design of a build-
ing to be constructed on that property but
refers only to the activity which is to be
conducted there.
The only other finding submitted by the Commission to
justify its action was that the Commission found that granting
this request was consistent with the actions the Commision felt
-31--
CKSON. EVANS.
:SCH & PAPAS
TORNEYS AT LAW
8130 H STREET
:HORAGE. AK 99501
1907/ 276-2272
it had taken in 1976." From the evidence submitted during the
public hearing, it is clear that Sunset Development Company had
requested an "exception" from the requirements of the Kodiak
Island Borough Code. Proponents of the variance did not present
any evidence to establish that the extent of the encroachment on
the side yard was fully considered in 1976. It is clear from the
Planning Staff's initial analysis, stating that the side yard
required was sixty-one feet, that the earlier consideration could
not have directly addressed the question of the variance of
seventy-five feet. It is also clear that there are separate
statutory requirements for granting an exception and for granting
a variance under the Kodiak Island Borough Code. There is no
indication in the present record that the Planning and Zoning
Commission applied the variance criteria to Sunset Development
Company's request for an "exception" in 1976. The conclusion
reached by the Planning and Zoning Commission in this regard is
not supported by the record.
Finally, the Planning and Zoning Commission cited, as a
reason for granting the side yard variance, a finding that the
proposed use is consistent with the objectives of the zoning
ordinances and the comprehensive plan. This finding is not
supported by evidence in the record. Opponents of the variances
presented unrefuted testimony that the project had a negative
impact on surrounding residential neighborhoods. Section
17.66.140 of the Borough Code specifically provides that vari-
ances shall be denied when they have an adverse impact on sur-
rounding neighborhoods. This project, which exceeds the density
requirements of the Borough Code by fifteen units; extends seven-
ty-three feet into the required side yard; and provides less than
half of the required parking spaces; is not consistent with the
zoning ordinances of the Borough of Kodiak. Further, the commer-
cial structure is not compatible in design with the surrounding
residential areas, as required by the comprehensive plan.
-32-
Section 17.10.090(b) of the ordinances of the City of
Kodiak provide that the Board of Adjustment shall grant only the
minimum variance that will make possible a reasonable use of the
land, building, or structure equivalent to the use of similar
lands, buildings, and structures in the same district. Because
Sunset Development Company had a prior duty to apply for a
seventy-five foot variance, and did not do so, the Board of
Adjustment's analysis must focus on what minimum variance will
make possible the reasonable use of the land. The developers
cannot use an illegal building to justify a massive variance.
Cf. Doull v. Wohlschlager, 377 P.2d 758 (Montana 1963). Propo-
nents of the variance failed to present any evidence of the
minimum side yard encroachment needed to facilitate a reasonable
use of the land.
The Board of Adjustment should reverse the decision of
the Planning and Zoning Commission of the Kodiak Island Borough
on October 19, 1978, which permitted a side yard variance for the
Kodiak Elderly Housing Project. The findings reached by the
Planning and Zoning Commission did not support the conclusion
that the variance should be granted. Further, the'findings are
not supported by substantial evidence on the record. The record
itself is devoid of substantial evidence which would justify the
variance as requested. There is no comparative data which demon-
strates that the alleged hardships are unique; there is evidence
which indicates that the alleged hardships are common to other
property in similar districts in Kodiak.
CKSON, EVANS.
:SCH & PAPAS
TORNEYS AT LAW
000 11 STREET
:HORAGE. AK 9950!
(907) 276-2272
-33-
CKSON, EVANS,
:SCH Ec PAPAS
TORNEYS AT LAW
800 II STRKET
:HORAGE, AK 99501
(907) 276-2272
CONCLUSION
Lorraine Dayton requests that each of the variances be
reversed. The record does not support the conclusions reached by
the Planning and Zoning Commission, and the conclusions reached
do not support the final decision granting the variances.
Lorraine Dayton, the appellant in this case, asserts a
valid property interest in that the variances granted have a
negative effect on her use and enjoyment of her property. The
zoning laws of the Kodiak Island Borough are designed to prevent
this adverse effect. The common attribute of all zoning ordi-
nances is that they are designed to protect property values.
Moreover, Courts must meaningfully review
grants of variances in order to protect the
interests of those who hold rights in prop-
erty nearby the parcel for which a variance
is sought. A zoning scheme, after all, is
similar in some respects to a contract; each
party foregoes [sic] rights to use its land
as it wishes in return for the assurance that'
the use of neighboring property will be
similarly restricted, the rationale being
that such mutual restriction can enhance
total community welfare.
If the interest of these parties in prevent-
ing unjustified variance awards for neighbor-
ing land is not sufficiently protected, the
consequence will be subvergent of the crit-
ical reciprocity upon which zoning regulation
rests. Topanga, supra, at 19.
The Board of Adjustment should reverse the decision of
the Planning and Zoning Commission in granting a thirty-one
percent (31%) lot area variance, a seventy-three (73) foot side
yard encroachment, and deviation of eighteen (18) spaces from the
parking lot requirements. The Board should pass the motion
presented to it by Lorraine Dayton.
-34-
Kodua Island Borough
KODIAK, ALAv,
RECEIVE1
APR 2 1979
AM 111
718(90111(12,1a4h4*516
BEFORE THE COUNCIL OF THE CITY OF KODIAK
SITTING AS A BOARD OF ADJUSTMENT
DECISION
IN.RE: CONSOLIDATED APPEALS OF LORRAINE DAYTON
OF VAIRANCES, V-78-056, V-78-057 and V-78-058
,GRANTED BY THE KODIAK ISLAND BOROUG PLANNING
AND ZONING COMMISSION
ACTION OF THE PLANNING AND ZONING COMMISSION
On October 18th and 19th, 1978, the Kodiak Island
Borough Planning and Zoning Commission held a public hearing
to consider the petition of Sunset Development Company
for three variances. By resolution no. V-78-05:6 the
Commission granted the petitioner a variance from the
strict application of Section 17.57.010 of the Kodiak
Island Borough Code of Ordinances (KIBC) which requires
one parking space per residential unit. By resolution no.
V-78-057 the Commission granted the petitioner a variance
from the strict application.of Sections 17.18.040 and
17.21.050 of the KIBC which establish side yard set backs
for residential construction in a business zone. By
resolution no. V-78-05.8 the Commission granted the petitioner
a variance from the strict application of Section 17.21.040
which.limits the number of residential units.that may
be constructed on a lot zoned business to a function of the
square footage of the lot.
FINDINGS OF FACT AND CONCLUSIONS
V-78-056-OFFSTREET PARKING
Section 17.57.010 of the KIBC requires one off-street
parking space. for each dwelling unit in a residential
development. The petitioner has proposed and constructed
the Kodiak Elderly Housing Project which contains 55 dwelling
units and.has only provided 26 off-street.parking spaces. The
Planning and Zoning•CommisSion, by resolution no. V-78-056
granted .a variance .requiring the petitioner to provide
37 parking spaces, subject to periodic review by the
Commission.
The project, as designed', constructed and funded-
is to ptovide low cost housing for elderly residents of
Kodiak. A survey of the membership of the Senior Citizens
of Kodiak determined that approximately 25% of
1
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- 0
-m
0'
a
-C
0 41
•
•
• "If
t • <
."0 t+ g
'74 —
c A-.
2
seventy-six (76) members responding had automobiles.
As of the date of the hearing before the Commission,
twenty-five elderly had made .application for rental
in the project and of the-twenty-five applicants, five
of.them had automobiles. An informal waiting list of
forty (40) elderly individuals contained only six who
had automobiles.' The Senior Citizens of Kodiak Project
provides bus transportation for its members to and from
functions for the elderly. The project is within walking
distance from commercial and medical services. Finally,
there is sufficient land available on the project site
to provide fifty-five parking spaces however that area
has been developed as a garden and park area for the tenants.
The Board of.Adjustment finds that there is substantial
evidence in the recard before it-to conclude;
1. That the-intended use and development of the site
as the Kodiak Elderly Housing Project does not require the
petitioner to utilize all of the vacant area of the lot
to provide fifty-five spaces of off-street parking.
2. That to require the paving of the garden and park
area proposed by the developer would substantially reduce
the amenities available to the tenants of the project and
would result in an unnecessary hardship to them.
3. That the variance,as granted, reduces the number of
parking spaces required under the ordinance by eighteen.
Such a reduction does not cause material damage or prejudice
to other property in the vicinity of the project nor does
it affect the health, safety or welfare of the general
public.
4. That the variance, as granted, is not contrary
to the goals and objectives of the Comprehensive Plan
of the Kodiak Island Borough.
V-78-057-SIDE YARD SETBACKS
Section 17.21.050 of the KIBC requires a building
used for a purpose permitted in a residential
zone conform to the yard requirements of the residential
district. Section 7.18.040.B KIBC would require
0
3
.a side yard set back of 76 feet; a 25'foot maximum side yard
set back requirement. under section 17.18.040B.1. KIBC
plus an additional one foot for each unit over four.
The Petitioner requested a variance which would allow
construction and continued development of the project
within two feet of a western lot line of the project site.
The Planning and Zoning Commission, by resolution V-78-057
granted a variance allowing sideyard encroachment of
less than two feet.
The tract upon which the project is situated contained
10 distinct lot lines and 10 distinct corner angles prior
to the inclusion and replat of a portion of lot 30. The
topography of the lot shows an irregular northerly slope
which terminates at an artificial slope caused by the
construction of Rezanof Drive. The eastern portion of
the lot contains some flat or level ground. There is rock
formation, not subject to being removed by blasting
that restricts development af the lot to some extent.
The development of the site to provide subsidized
housing for the Kodiak elderly was subject to certain
constraints imposed by the Department of Housing and Urban
Development (HUD) and the financing institution, Washington
Mortgage Company. The only way financing could be obtained
was to design the project to provide fifty-five units
of elderly housing. HUD restricts occupancy to not
more than two people per unit. Finally, the site is
presently zoned for business.
If the Petitioner had developed the property with a
commercial use on the ground floor, the residential
restrictions for side yard set backs would not be applicable.
The Board of Adjustments finds that there is
substantial evidence in the record before it to
conclude:
1. That the side yard set back requirementsapplicabla
to residential units in the business zone are to insure
adequate open space for the benefit of residents of
4
such dwelling units.
2. That the unique shape of the lot, coupled
with the topography of the lot, restricts the placement
of a large building on the site.
3. That the intended'use and development of the site
to.provide subsidized elderly housing for Kodiak is
a much needed and desirable addition to the community
of Kodiak and iS unique in concept. design and construction
to Kodiak.
4. That by-placing a building on the site in the close
proximity of-the Western lot lines, the open space available
to residents of the project is maximized.
5. That the strict application of section 17.21.050
and 17.18.040B KIBC would result in unnecessary hardship
to the residents.of the project by reducing the
usable ,open space.available.to them and destroy one of
the amenities provided in the project.
6.. That the encroachment of the building into the
western yard areas of the lot does not cause material
damage or prejudice to other properties in the vicinity
of the project nor does the encroachment affect the
health, safety and welfare of the public.
7. That the variance as granted, does not conflict with
the goals and objectives of the Comprehensive Plan of
the Kodiak Island Borough.
V-78-058 LOT AREA RESTRICTIONS
Section 17.21.040 KIBC limits,the number of residential
units in a multi-unit development to one unit per
1000 square feet of lot. The tract upon which the
development is situated contained 40,717 square feet.
An additional 1,631 square feet of area has been
added to the tract. The total area of 42,348 square
feet, without a variance would support 42 dwelling
Units under the Code section set out above. The parties
appearing before the Board of Adjustment agree that lot
area restrictions in the zoning code are an attempt to
!,*
1 f„
i
•
5
regulate population density in a given area.
The project, as. proposed and constructed, contains
55 one-bedroom units- The Department of Housing and
Urban Development, in terms Qf restrictions on elderly
occupancy, limts the occupancy per unit to two persons
with an entry criterior of 62 years of age. The development
of the site to provide subsidized elderly housing was
subject to certain CONSTRAINTS imposed by HUD and the
financing institution. The project, as proposed, could
mot have proceeded with less than 55 units.
The development site is ideally situated to provide
housing-for the elderly of Kodiak. It is within immediate
proximity of police, fire and health services. It is
within walking distance to .the commercial and service
establishments of the City of Kodiak. .
The Board of Adjustment finds that there is substantial
evidence in the record before it to conclude:
1. That the project site is uniquely situated for
its intended use.
2. That the project is one which is needed and
desired by the community.
3. That construction.of less than fifty-five units
would negate the project.
4. That the land use intensity by increased population
density will not be different with the.granting of the
variance than what would otherwise be allowable in the
district.
5. That the variance, as granted, does not result
in material damage or prejudice to-other properties in
the vicinity.
6. That the granting of the variance promotes the
health, safety and welfare of the public.
- _
7. That the variance, as granted, is not contrary
. to the:goals and objectives of the Comprehensive Plan.
DATED at Kodiak, Alaska this gGf) day of , ,1979.
•
0
AIRMAN, Board of Adj ents
y of Kodiak
IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
THIRD JUDICIAL DISTRICT
LORRAINE DAYTON, )
)
Plaintiff, )
)
vs. )
)
KODIAK ISLAND BOROUGH, et al.,)
)
Defendants. )
Case No. 3AN78-3988 Civ.
TO:
)
lohat island .bora
KODIAK, AIATA
RECEIVPD
APR 6 1979
. Pk%
glitgahnd21112131415y3
NOTICE OF TAKING DEPOSITION
Rick Garnett, Esq.
Don Johnson, Esq.
Robert Mahoney, Esq.
A
PLEASE TAKE NOTICE that at 9:00 a.m. on the 20th day of
April, 1979, at the offices of Island Secretarial Services,
located in the Tony's Building on the Mall, Kodiak, Alaska,
Robert I. Shoaf will take the deposition of Harry Milligan upon--
oral examination before a Notary Public or some other officer
authorized by law to administer oaths. The examination will
continue from day to day until completed. You are invited*to
attend and take such part as you may consider appropriate.
DATED this 30 day of March, 1979, at Anchorage, AK.
DICKSON, EVANS, ESCH & PAPAS
Attorneys for Plaintiff
By:
ggy/
Ro ert I.. Shoa
This certifies that a true ana correct
copy of the foregoing was sent to Don
Johnson, Robert Mahoney, and Rick
Garnett at their addresses of record,
this day of 1979.
By:
DICKSON, EVANS,
ESCH & PAPAS
ATTORNEYS AT LAW
880 Fl STREET
ANCHORAGE, AK 99501
(907) 276-2272
obert I- Sh
IN THE SUPERIOR COURT.FOR THE STATE OF ALASKA
THIRD JUDICIAL DISTRICT
LORRAINE DAYTON, )
)
Plaintiff,
)
vs. )
)
KODIAK ISLAND BOROUGH, et al.,)
)
Defendants. )
)
Case No. 3AN78-3988
AFFIDAVIT .OF MAILING
STATE OF ALASKA )
) ss.
THIRD JUDICIAL DISTRICT )
KATHY OAKLAND, first being duly sworn on her oath,
deposes and says that she is a secretary in the offices of
DICKSON, EVANS, ESCH & PAPAS, 880 "H" Street, Suite 200,
Anchorage, Alaska, 99501, and that on the 4th day of April1979, ,
she served a true and correct copy of the Notice of Taking
Deposition of Dan Busch, Notice of Taking Deposition of Gene
Erwin and Notice of Taking Deposition of Harry Milligan, re-
spectively, by depositing the same, by certified mail with suf-
ficient postage, in the United States mail, addressed to:
Dan Busch
c/o Kodiak Island Borough
Box 1246
Kodiak, AK. 99615
Harry Milligan
c/o Kodiak Island Borough
Box 1246
Kodiak, AK 99615
Gene Erwin
c/o Kodiak Island Borough
Box 1246
Kodia, AK 99615
. SUBSCRIBED AND SWORN to before me this 4th day of
April, 1979.
a 44
OTARY PUBLIC IN AND OR ALASKA
MY COMMISSION EXPIRES; /0-f
DICKSON, EVANS.
ESCH & PAPAS
ATTORNEYS AT LAW
SRO H STREET
ANCHORAGE. AK 99501
(907) 276-2272
LAW OFFICES OF
RICHARD W. GARNETT III
SUITE 101
909 W. 9TH STREET
ANCHORAGE, AN. 99501
(907) 279-8731
ultampa ie
lsiand 13
i. i3oratgb
RECEIV
APR 4 1979 ark
um
IN THE SUPERIOR COURT FOR THE -1 OF
THIRD JUDICIAL DISTRSIIC9ITIM4111:1a141516
LORRAINE DAYTON,
Plaintiff,
vs.
KODIAK ISLAND BOROUGH, et al.,
Defendants.
Case No. 3AN78-3988
Consolidated with
Case No. 3AN78-8435
ANSWER TO REQUEST
FOR ADMISSIONS
Defendant, Kodiak Island Borough, answers plaintiffs
request for admissions, as follows:
1. Admitted, except that a height exception was
not required.
2. Denied as stated. The March 7, 1974, rezoning
dealt with a specific, different project. The
minutes of the hearing in question are ambiguous
at best, and must speak for themselves. Defendant
asserts that a height limitation, in the nature of
'contract zoning', would have been involved under
current law.
Dated this 2 day of March, 1979.
At Anchorage, Alaska.
This certifies that a true and correct
copy of the foregoing has been mailed
to all parties of record on March, 29,
1979.
By
S arron L. Pi chford
/144,--anzr-
R.chard W. Garnett III
Attorney for Defendant
Kodiak Island Borough
island boroagh
KODIAK, ALAV:A
RECEIVET)
MAR 1 2 1979
1111
4 :`,1 n9 JO /I eV I 1 e 13 14 15 16
BEFORE THE CITY COUNCIL OF KODIAK SITTING
AS A BOARD OF ADJUSTMENT
In Re: Appeal of Lorraine Dayton of variances granted to
the Kodiak Elderly Housing Project on October 19, 1978.
.04
DATED this,co--day of February, 1979, at Anchorage, Alaska.
‘44112-17#
Richard W. G rnett III
Borough Attorney
LAW OFFICES OF
:HARD W. GARNETT III
SUITE 101
909 W. 9TH STREET
-ICHORAGE, AK. 99501
(907) 279-9731
LAW OFFICES OF
HARD W. GARNETT III
SUITE 101
909 W. 9TH STREET
CHORAGE, AK. 99501
(907) 279-13731
BRIEF.OF,THE.KODIAK ISLAND BOROUGH
Appellant opposes action of the Planning and Zoning Commission
granting certain variances in connection with the Kodiak
Elderly Housing Project ("Project"). The borough will
suggest several considerations which support the action
taken.
First, appellant does not have standing to contest all of
the variances. The concept of standing is basic to an
adversary proceeding. To have standing to contest governmental
action, appellant must have a direct personal interest in
the point at issue. .The record reveals that Mrs. Dayton's
concern is that a portion of her view is obstructed by the
project. Only the height variance has any bearing upon Mrs.
Dayton's view. She is not "aggrieved" by the variances
relating to parking, side yard and density. Accordingly,
only the height variance should be considered properly
before the board.
Appellant has suggested that the variances requested for the
project should be viewed critically by the Board. She argues
that variances are somehow disfavored and should almost
never be granted. The borough suggests that this attitude
is not appropriate in the present case.
From the begining of'zoning in this country, the variance
has been a constant and legally necessary feature -of municipal
LAW OFFICES OF
:HARD W. GARNETT III
SUITE 101
909 W. 9TH STREET
NCHORAGE, AK. 99501
(907) 279.13731
•
zoning systems. By its nature, zoning is a limitation on
property rights. Zoning is valid on the basis of the public
health, safety and welfare. However, courts have been
diligent to insure that any zoning system contains adequate
safeguards against unreasonable restrictions on the use of
property.
The variance is the principal device which serves to insure
that a geometric system of zoning classifications does not
affect a particular land owner in an unreasonable manner:
The'governmental power to interfere by zoning regulations
with the general rights of the landowner by restricting
the character of its use is not unlimited, and, other
questions aside, such.restriction can not be imposed
if it does not bear a 'substantial relation to the
public health, safety', morals, or general welfare.
Euclid v.. Ambler. Here the expressed finding of
the master, already quoted, confirmed by the court
below is that the health, safety, convenience and
general welfare of the inhabitants of the part of
the city affected will not be promoted by the
disposition by the ordinance of the locus in question.
Nectow v. City of Cambridge, 277 U.S. 183 (1928).
In other words, there must be some device to prevent the
district concept from operating unreasonably with respect to
particular pieces of property. Otherwise, the districting
itself may be declared invalid. It is to prevent this
result that the variance evolved. There is at least some
authority for the proposition that failure to provide the
landowner with the possibility of relief through a variance
procedure renders the zoning ordinarice unconsititutional.
Compare Boldue v. Pinkham, 88 A 2d 817 (N.J. 1952) and
Florentine v. Town of Darien 115 A. 2d.328 (Conn. 1955).
The point is that a variance request should not be viewed
with suspicion, as in some sense detrimental to good zoning.
On the contrary, variances may be necessary to transform an
abstract system of paper boundaries into workable rules for
particular area.
LAW OFFICES OF
IARD W. GARNETT III
SUITE 101
09 W. 9TH STREET
:HORAGE, AK. 99501
(907) 279-8731
Moreover, a number of cases have articulated the doctrine
that variances for buildings which have a public purpose
should be granted liberally. In .DeSimone v, Greater Inglewood
Housing Corp. No. 1, 267 A 2nd 31 (NJ, 1970), the court
dealt with an ordinance which provided, in language similar
to the Kodiak ordinance, that a variance could be granted
upon findings of "special reasons" and that "relief can be
granted without substantial detriment to the public and will
not substantially impair the intent and purpose of the zone
plan and zoning ordinance". The court stated:
...variances have been approved for many public and
semi-public uses because they significantly further
the general welfare. See, eg, Andrews v. Board of
Adjustment of the Township of Ocean (parochial
school in residential zone); Black v. Montclair
(additional parochial school building in residential
zones).; Yannell v. Board of Adjustment of Jamesberg
(telephone equipment building in residential zone);
Kunzler v. Hoffman (private hospital for emotionally
disturbed in residential zone)....(citations omitted).
The same considerations should encourage the board to look
favorably upon the variances requested in this case.
elderly housing project, by its nature, provides a public
benefit. The entire community is enhanced if its elderly
citizens are provided with safe, esthetically pleasing, and
conveniently located residential units.
With this general background, it is useful to examine the
specific standards for variances set forth in the Kodiak
Borough Ordinance, 17.66.090 (e). The first requirement is:
That there are exceptional physical circumstances
or conditions applicable to the property or to its
intended use or development which do not apply
generally to generally to other properties in the same
land use district. (emphasis added) ,
This language permits the Planning Commission to consider
factors in addition to the physical nature of the property
in determining whether a variance is justified. There was
abundant testimony that the project was not feasible economically
unless it contained the present number of units. HUD funding
LAW OFFICES OF
HARD W. GARNETT 111
SUITE 101
909 W. 9TH STREET
CHORAGE, AK. 99501
(907) 279.8731
was conditioned on the present size. There was further
testimony that the project itself probably was not feasible
without HUD financing.
The board may note from its own experience that elderly
-housing is not likely to be the most profitable form of real
estate development and that governmental guarantees.or other
financial assistance might well be critical to the success
of such a project. .
The Commission heard testimony as to the unique suitability
of this particular tract for elderly housing. It was one of
very few substantial undeveloped tracts located on the
border of the downtown section of Kodiak. .Testimony at the
hearing pointed to the importance for elderly citizens of
housing located near stores, churches, health care, and
government offices, so that elderly citizens could reach
these services easily and without reliance upon the •automobile.
•The second condition provides:
That the strict applications of the provisions of
this title would result in practical difficulties
or unnecessary hardship.
In the present case, this standard operates in much the same
way as the first. Without the variance it is doubtful
whether the project could have been constructed. The
result would be hardship and difficulty not only for the
developer, but for the senior citizens who need the new
housing and for the Kodiak community in general.
The third condition is that:
The granting of the variance will not result in
material damage or prejudice to other properties
in the vicinity, nor be determinantal to the public
health, safety or welfare.
It is clear_from the foregoing that the public health,
safety-and welfare, far-from being damaged, are promoted by
LAW OFFICES OF
HARD W. GARNETT 111
SUITE 101
909 W. 9TH STREET
iCHORAGE, AK. 99501
(907) 279.0731
grant of the variances. Use of the word material indicates
that mere speculative or incidential effect on neighboring
property is not sufficient to warrant denial of the variances.
In this case the sole evidence on point is that a portion of
the view from Mrs. Dayton's lot is obstructed by the project.
Frequent reference is made to the Russian Orthodox church
and the harbor. It is worth pointing out that the "view"
obstructed by the project, also includes a large tank farm
and a number of canneries.
There was no evidence as to the existence or extent of any
actual loss of market value because of the project. Without
more, .the opposite inference is warranted. Substantial
development in the area of Mrs. Dayton's property will
eventually enhance the value of that property.
Certainly the project is not contrary to the comprehensive
plan. It is a completely reasonable use for land in the
border area between commercial and residential/government
sections of town.
For these reasons, it appears that the Planing Commission's
decision was entirely reasonable. Accordingly, the Kodiak
Island Borough requests that the appeal be denied.
DATED this .t?' of February, 1979 at. Anchorage, Alaska.
Richard 7. Garnett II
Borough Attorney
COLE, HARTIG,
RHODES, NORMAN
& MAHONEY
SUITE 201
717 K STREET
ANCHORAGE, ALASKA
99501
TELEPHONE
(907) 274-3576
In Re:
THE KODIAK CITY COUNCIL
SITTING AS A BOARD OF ADJUSTMENT
May. konaborough
aarmAtz, mAmik
RESEIVK
EB 2 6 1979
PS
48119910111.0401214016
APPEAL OF LORRAINE DAYTON OF VARIANCES
GRANTED TO THE KODIAK ELDERLY HOUSING
PROJECT ON OCTOBER 19, 1979.
OPPOSITION TO MOTION
FOR ALLOCATION OF COSTS
COMES NOW the Developer, SUNSET DEVELOPMENT COMPANY,
by and through its attorneys, COLE, HARTIG, RHODES, NORMAN &
MAHONEY, to oppose Appellant's Motion requesting the Board
of Adjustment to makeea determination of the proper allocation
of costs in the production of the record for this appeal.
The only provision in the Board of Adjustment
Ordinances relating to the charge for the record on appeal
is found in Section 17.10.020(D). That section provides
If-a charge or bond is required by the
Kodiak Island Borough for the preparation
of the record, Appellant shall be notified
of that charge, fee or bond and Appellant
shall be responsible for satisfying any
such Borough requirements.
That section does not regulate the charge levied by the Borough
nor does the Board of Adjustment assume any jurisdiction for
allocation of that charge.
Based on the foregoing, it is respectfully submitted
that the charges levied by the Borough for the preparation
of the record are not a matter subject to the jurisdiction
of the Board of Adjustment and the Board would have no
authority to allocate those charges among the parties.
DATED this day of-February, 1979, at
Anchorage, Alaska.
COLE, HARTIG, RHODES,
NORMAN & MAHONEY
Attorneys for Sunset Development
Company
By:
C. Walter Ebell
K.of.:11111c Is Itard
KODIAK', Al IV:Yu-A
RECE/Vt'll
FEB 2 2 197.9
71819(111farOIA31
BEFORE THE CITY COUNCIL OF KODIAK SITTING
AS A BOARD OF ADJUSTMENT
n Re: Appeal of Lorraine Dayton of variances granted to
he Kodiak Elderly Housing Project on October 19, 1978.
DATED this20'114'day of February, 1979, at Anchorage, Alaska.
414124'
Richard W. G rnett III
Borough Attorney
orricEs OP
0 W. GARNETI 111
SUITE 101
W. 9TH 51111ET
RAGE, AK. 99501
)7) 279.8731
We'
BRIEF OF THE KODIAK ISLAND BOROUGH
Appellant opposes action of the Planning and Zoning Commission
granting certain variances in connection with the Kodiak
Elderly Housing Project ("Project"). The borough will
suggest several considerations which support the action
taken.
OFFICES OF
) W. GARNETT 111
:UITE 101
y. 9TH STREET
tAGE. AA, 99501
,7) 279.5731
First, appellant does not have standing to contest all of
the variances. The concept of standing is basic to an
adversary proceeding. To have standing to contest governmental
action, appellant must have a direct personal interest in
the point at issue. The record reveals that Mrs. Dayton's
concern is that a portion of her view is obstructed by the
project. Only the height variance has any bearing upon Mrs.
Dayton's view. She is not "aggrieved" by the variances
relating 'to parking, side yard and density. Accordingly,
only the height variance should be considered properly
before the board.
Appellant has suggested that the variances requested for the
project should be viewed critically by the Board. She argues
that variances are somehow disfavored and should almost
never be granted. The borough suggests that this attitude
is not appropriate in the present case.
From the begining of zoning in this country, the variance
has been a constant and legally necessary feature 'of municipal
A 0 17
IS I 7 it
5 • 'I'
u. 5e
roff 0: C
/ 47,5 N
0/1
Pv
/ v,
Y OFFICES OF
0 W. GARNETT 111
SUITE 101
W. 9TH STREET
'RAGE, Alt 99501
97) 2,79-9731
zoning systems. By its nature, zoning is a limitation on
property rights. Zoning is valid on the basis of the public
health, safety and welfare. However, courts have been
diligent to insure that any zoning system contains adequate
safeguards against unreasonable restrictions on the use of
property.
The variance is the principal device which serves to insure
that a geometric system of zoning classifications does not
affect a particular land owner in an unreasonable manner:
The governmental power to interfere by zoning regulations
with the general rights of the landowner by restricting
the'character of its use is not unlimited, and, other
questions aside, such restriction can not be imposed
if it does not bear a substantial relation to the
public health, safety, morals, or general welfare.
Euclid v. Ambler. Here the expressed finding of
the master, already quoted, confirmed by the court
beloW is that the health, safety, convenience and
general welfare of the inhabitants of the part of
the city affected will not be promoted by the
disposition by the ordinance of the locus in question.
Nectow v. City of Cambridge, 277 U.S. 183 (1928).
In other words, there must be some device to prevent the
district concept from operating unreasonably with respect to
particular pieces of property. Otherwise, the districting
itself may be declared invalid. It is to prevent this
result that the variance evolved. There is at least some
authority for the proposition that failure to provide the
landowner with the'possibility of relief through a variance
procedure renders the zoning ordinance unconsititutional.
Compare Boldue v. Pinkham, 88 A 2d 817 (N.J. 1952) and
Florentine v. Town of Darien 115 A. 2d 328 (Conn. 1955).
The point is that a variance request should not be viewed
with suspicion, as in some sense detrimental to good zoning.
On the contrary, variances may be necessary to transform an
abstract system of paper boundaries into workable rules for
a particular area.
OFFICES OF
W. GARNETT 111
UITE 101
`. 9TH STREET
AGE, AK. 99501
279.8731
Moreover, a number of cases have articulated the doctrine
that variances for buildings which have a public purpose
should be granted liberally. In DeSimone v. Greater Inglewood
Housing Corp. No. 1, 267 A 2nd 31 (NJ, 1970), the court
dealt with an ordinance which provided, in language similar
to the Kodiak ordinance, that a variance could be granted
upon findings of "special reasons" and that "relief can be
granted without substantial detriment to the public and will
not substantially impair the intent and purpose of the,zone
plan and zoning ordinance". The court stated:
...variances have been approved for many public and
semi-public uses because they significantly further
the general welfare. See, eg, Andrews v. Board of
Adjustment of the Township of Ocean (parochial
school in residentiaLzone); Black v. Montclair
(additional parochial school building in residential
zones); Yannell v. Board of Adjustment of Jamesberg
(telephone equipment building in residential zone);
Kunzler v. Hoffman (private hospital for emotionally
disturbed in residential zone)....(citations omitted).
The'same considerations should encourage the board to look
favorably upon the variances requested in this case.
elderly housing project, by its nature, provides a public
benefit. The entire community is enhanced if its elderly
citizens are provided with safe, esthetically pleasing, and
conveniently located residential units.
With this general background, it is useful to examine the
specific standards for variances set forth in the Kodiak
Borough Ordinance, 17.66.090 (e). The first requirement is:
That there are exceptional physical circumstances
or conditions applicable to the property or to its
intended use or development which do not apply
generally to generally to other properties in the same
land use district. (emphasis added)
This language permits the Planning Commission to consider
factors in addition to the physical nature of the property
in determining whether a variance is justified. There was
abundant testimony that the project was not feasible economically
unless it contained the present number of units. HUD funding
OFFICES OF
W. GARNETT 111
UITE 101
9TH STREET
:AGE, AK. 99501
7) 279-8731
was conditioned on the present size. There was further
testimony that the project itself probably was not feasible
without HUD financing.
The board may note from its own experience that elderly
housing is not likely to be the most profitable form of real
estate development and that governmental guarantees or other
financial assistance might well be critical to the success
f such a project.
The Commission heard testimony as to the unique suitability
f this particular tract for elderly housing. It was one of
very few substantial undeveloped tracts located on the
border of the downtown section of Kodiak. Testimony at the
hearing pointed to the importance for elderly citizens of
housing located near stores, churches, health care, and
government offices, so that elderly citizens could reach
these services easily and without reliance upon the automobile.
The second condition provides:
That the strict applications of the provisions of
this title would result in practical difficulties
or unnecessary hardship.
In the present case, this standard operates in much the same
way-as the first. Without the variance it is doubtful
whether the project could have been constructed. The
result would be hardship and difficulty not only for the
developer, but for the senior citizens who need the new
housing and for the Kodiak community in general.
The third condition is that:
The granting of the variance will not result in
material damage or prejudice to other properties
in the vicinity, nor be determinantal to the public
health, safety or welfare.
It is clear from the foregoing that the public health,
safety and welfare, far from being damaged, are promoted by
r
1.
i OFFICES OF
) W. GARNETT 111
51111E 101
W. 9TH STREET
HAGE, A. 99501
37) 279.8731
grant of the variances. Use of the word material indicates
that mere speculative or incidential effect on neighboring
property is not sufficient to warrant denial of the variances.
In this case the sole evidence on point is that a portion of
the view from Mrs. Dayton's lot is obstructed by the project.
Frequent reference is made to the Russian Orthodox church
and the harbor. It is worth pointing out that the "view"
obstructed by the project also includes a large tank farm
and a number of canneries.
There was no evidence as to the existence or extent of any
actual loss of market value because of the project. Without
more, the opposite inference is warranted. Substantial
development in the area of Mrs. Dayton's property will
eventually enhance the value of that property.
Certainly the project is not contrary to the comprehensive
plan. It is a completely reasonable use for land in the
border area between commercial and residential/government
sections of town.
For these reasons, it appears that the Planning Commission's
decision was entirely reasonable. Accordingly, the Kodiak
Island Borough requests that the appeal be denied.
DATED this gO day of February, 1979 at. Anchorage, Alaska.
Richard ,. Garnett 111
Borough Attorney
11.
KODIAK ISLAND BOROUGH
Telephones 486 -5736 - 486 -5737 — Box 1246
KODIAK, ALASKA 99615
25 January 79
Libby Presnell
City Clerk
City of Kodiak
Box 1397
Kodiak, Alaska 99615
RE: Dayton Appeal - Sunset Development Co. Variances
Dear Madam Clerk:
By letter, dated 8 January 1979, I transmitted to you material which
we deemed to constitute the record of proceedings before the Planning
and Zoning Commission in the above captioned cases.
Thereafter, on 15 January 1979, Mrs. Dayton's attorney wrote to you
requesting that additional matter be incorporated into the record.
Mr. Johnson, counsel for the city, has objected to this request.
The Borough has no specific objection to receipt by you of the mater-
ial submitted by Mr. Shoaf. Normally appellant designates the record
initially.
However, we take no position as to whether or not the new matter is
sufficiently relevant to be considered part of "the record" which the
board actually considers in reaching its decision. Relevance, of
course, is a matter for determination by the board.
Thank you for your consideration.
Very truly yours,
RG /HM /aan
cc: Robert Shoaf
Mr. Johnson
Bernard Dougherty
Richard Garnett, III
Harry Mill ' • an
Planning Director
MEMORANDUM
TO: KODIAK ISLAND EMPLOYEES
FROM: KODIAK ISLAND BOROUGH EMPLOYEES ASSOCIATION
SUBJ: JANUARY MEETING
DATE: JANUARY 23,1979
This is an open invitation to attend the meeting of the
KIBEA to be held at 7:30 pm, Thursday, January 25,1979
at the residence of Gladys Berestoff.
We will be formulating our by-laws and constitution and
discussing other matters of interest to the Association.
We need your input so please plan on attending.
If you need directions to Gladys' house please contact
us.
)9
,„4:Q,AW6-1
Susan Vaughan
Secretary/KIBEA
KODIAK ISLAND BOROUGH
PLANNING & ZONING COMMISSION MEETING MINUTES
JANUARY 17, 1979, at 7:30 P.M.
CALL TO ORDER
Chairman Busch called the regular meeting to order, which was held in
the Borough Assembly Chambers.
ROLL CALL
Present
Mr. Ron Ball
Mrs:'Virginia Crowe
Mr. Dan Busch, Chairman
Mr. John Pugh
Mr. Gene Erwin
Mr. Tony Perez
MINUTES
Absent
Mr. Phil Anderson, (excused)
Also Present
Mr. Harry Milligan, Secretary
Mr. Bryce Gordon
moved that the minutes from the December 20, 1978 meeting
be approved with one correction made on page 3, changing the name of Tim
Hilliard to Tim Hill. seconded the motion. Motion passed by
unanimous roll call vote.
IV APPEARANCE REQUEST - None
V UNFINISHED BUSINESS - None
' VI PUBLIC HEARINGS
A. SUBDIVISIONS
1. S-78-104. A request to resubdivide Lot 1, Block 1, Monashka Bay
Alaska Subdivision into two lots. (Requested by K.I.B.)
STAFF REPORT: Mr. Milligan presented report based upon a memorandum
from the Planning Department. Staff recommends this request be grant-
ed. Some discussion followed.
Mr. Pugh moved that the Commission approve the request to resubdivide
Lot 1, Block 1, Monashka Bay Subdivision into two lots, as being Lots
1A & 1B, and that a 10' utility easement be provided along each side
of the proposed lot line common to Lots IA & 1B, and that a 10' utility
easement be provided along the lots line common to Lot 2A & 2B, and
that if it's discovered that the utility easement between Lots IA and
the adjoining Lots numbered 1, 5, 6 & 7, (I'm not sure what survey they
are in), be found to not be sufficient, that that utility easement be
brought to 20'. Seconded by Mrs. Crowe. Motion passed by unanimous
roll call vote.
2. S-78-105. A request to resubdivide Lot 10, Block 4, Monashka Bay
Alaska Subdivision into two lots. (Requested by K.I.B.)
STAFF REPORT: Mr. Milligan presented the staff report based on a memo-
randum from the Planning Department. Staff recommends that this request
be approved. Some discussion followed.
Chairman Busch closed the regular meeting and opened the public hearing
on the above two requests.
Hearing no one speaking either for or against these two requests Chair-
man Busch closed the public hearing and opened the regular meeting.
Mr. Pugh moved that the Commission approve the request to resubdivide
Lot 10, Block 4, Monashka Bay Alaska Subdivision into two lots, being
10A & 10B, and that there be a 10' utility easement provided along the
lot line common to the proposed lots 10A & 10B and also a 10' utility
easement be provided along the lot line common to proposed lots 10A &
9A. Seconded by Mr. Ball. Motion passed by unanimous roll call vote.
PLANNING & ZONING COMMISSION MEETING - MINUTES
Held January 17, 1979, at 7:30. P.M.
PAGE 2
3. S..78-.10.3. A request to vacate Lots 10 through 19, Block 2; Lots 8
through. 16, Block 3, Allman Addition, and the portion of Malutin
Lane, common to said lots, and replat the property as Tract "A"
- Allman Addition Subdivision. (Requested by Art Bors)
STAFF REPORT: Mr. Milligan presented the staff report based on a memo-
randum prepared by the Planning Department.
Chairman Busch, closed the regular meeting and opened the regular meeting.
TN FAVOR; —GREGTURIN: In favor of this vacation/replat, the reason being that it is
- ahsolUtely'necessarr to the completion of the project that these two
things: be done, because of design reasons, it has to be one plot of ground
in ttbs, entirety.. Stated that Mr. Harmony said he was going to talk to
the Fire Chief himself.
Chairman Busch closed the public hearing and reopened the regular meeting
after hearing no one else speaking either for or against the above re-
quest.
Discussion followed between the Commission and Mr. Milligan. Mr. Pugh
requested to have Art Bors to come to the mike to answer some questions.
Mr. Ball moved that the Commission approve the request to vacate Lots 12
through 19, Block 2; Lots 8 through 16, Block 3, Allman Addition, and
the portion of Malutin Lane, common to said lots, and replat the property
as Tract "A" Allman Addition Subdivision, and include the following amend-
ment to the above motion, which are, (staff recommendation): 1) Relocate
the 48)1 manhole, relocation being designated by the City of Kodiak, and the
applicants bear all costs associated with the relocation and removal of the
sewer line within this relocated roadway, and 2) the applicants block off
each end of the 4" water line in the vacated roadway, at their own expense,
and the satisfaction of the City of Kodiak. Seconded by Mr. Perez. Motion
passed 4-2 with Mr. Pugh and Mrs. Crowe casting NO votes.
B. ZONING
1. Z-78-106. A request to rezone Lots 6 & 7, U.S.S. 3100 from Unclassified
to R-3, multi-family residential. (Requested by A.J. Perez)
STAFF REPORT: Mr. Milligan presented the staff report based on a memorandum
prepared by the Planning Department.
Chairman Busch closed the regular meeting and opened public hearing.
OPPOSED TO:. RUD WASSON: Lives on Spruce Cape. He and his wife both are opposed to this
rezoning because Spruce Cape Rd. is very narrow; they want to see it remain
with as low-density as possible.
TIMMIE WASSON: Read a letter into the record, dated January 17, 1979,
which was written by:
Dorothy and Norman Holm, resident and owner of Lot 17, U.S.S. 3100, who are
opposed to this rezoning. She also concurred on her husband's comments.
(Wasson's live on Lot 18B, U.S.S. 3100)
MR. & MRS. LOUIS R. LINDSAY: Live on Lot 15, U.S.S. 3100. Chairman Busch
read their letter into the record opposing the above rezoning request.
Hearing no one else speaking either for or against the above request,
Chairman Busch closed the public hearing and reopend the regular meeting.
Mr. Ball moved that the Commission table this request for further study.
Seconded by Mr. Erwin. Motion passed 4-1, with Mr. Busch casting a NO
vote and Mr. Perez abstaining from voting.
2. Z-78-109. A request to rezone Lots 9 through 14, Block 1, Allman
Addition Subdivision from R-1, single-family residential to Business.
(K.I.B. P & Z Commission)
K.I.R. PLANNING & ZONING COMMISSION MEETING - MINUTES
Held January 17, 1979, at 7:30 P.M.
PAGE 3
STAFF REPORT; Mr. Milligan presented the staff report based on a memo-
. randum prepared by the Planning Department. Staff recommends the
approval of this request.
Chairman Busch closed the regular meeting and opened the public hearing.
IN FAVOR; MR. BLONDIN: Spoke in favor of this request.
MR. FURIN: Spoke in favor of this request.
Chairman Busch closed the public hearing and reopened the regular meet-
ing.
Mr. Bail moved that the Commission approve the request to rezone Lots
9 through'14, Block 1, Allman Addition Subdivision from R-1 single-family
residential to Business. Seconded by Mr. Perez. Motion passed by un-
aniinoUs roll call vote.
C, OTHER
1. Z-78-108. A request to amend the Comprehensive Land Use Plan classi-
fication affecting Lots 9 through 14, Block 1, Lots 12 through 18,
Block 2, and Lots 9 through 16, Block 3, Allman Addition Subdivision
from Public Open Spaces. and Medium Density Residential to Business.
(Requested by K.I.B. P & Z Commission.)
STAFF REPORT: Mr. Milligan presented the staff report based on a memo-
randum prepared by the Planning Department. Staff recommends the
approval of this request.
Chairman Busch closed the regular meeting and opened the public hearing.
OPPOSED TO; MR, GARRETT; Objects to the potentiality of his property one day being
rezoned to'Business, so at present is opposed to this rezoning.
GEORGE WOLKOFF: He's Mr. Garrett's next door neighbor, and is definitely
opposed to the above request.
Chairman Busch closed the public hearing and reopened the regular meeting
after hearing no one else speaking either in favor of or opposed to the
above request.
Ms-. Crowe moved that the Commission amned the Comprehensive Land Use Plan
Classification affecting Lots 9 through 14, Block 1; Lots 12 through 18,
Block 2; and Lots 9 through 16, Block 3, Allman Addition Subdivision,
from Public Open Spaces and Medium Density Residential to Business. Motion
seconded by Mr. Ball, Motion passed by unanimous roll call vote.
Mr. Ball requested a five minute recess at this time. Chairman Busch con-
ceded and stated that they would reconvene at 9:25 P.M..
2, Comprehensive Park and Recreational Plan.
STAFF REPORT; Mr. Milligan presented the staff report based on a memo-
randum prepared by the Planning Department.
VII OLD BUSINESS
A,
• Mr. Pugh moved to remove from the table the rezoning request by Mike
RaSmuss.en/LlOyd Benton that we tabled at our last regualr meeting for the
rezoning of a certain tract in Mill Bay area. PLEASE NOTE: Mr. Pugh
decided to just bring it up for discussion rather than removing from the
table.
• Mrs. Crowe moved to initiate an amendment to the Comprehensive Land Use
Plan from Medium Density Residential to Business Lots 1 & 2, Block 1,
Woodland Acres Subdivision, 1st Addition; Lots 1,2, 3 & 4, Miller Point
Alaska Subdivision-, 1st Addition, and a portion of the unsubdivided por-
tion US$ 3218 to a depth equal to that of Lot 1, Block 3, from Rezanoff
extension. (this would be the portion that was colored in yellow right
• here.) Seconded by Mr. Ball. Motion failed 3-3, with Mr. Pugh, Mr. Erwin,
and Mr. Perez casting NO votes.
401 41110
K.I.B. PLANNING & ZONING COMMISSION MEETING - MINUTES PAGE 4
Held January 17, 1979, at 7:30. P.M.
VIII INFORMATION AND REPORTS
A. . Communication None
B. Reports
1, Chairman's Report - None
2. Committee Report - None
3. Staff Report
a. Borough. Manager - None
b, City Manager None
c. Planning Director
(.I).. ,Brief on Pillar Mt. Geotechnical committee.
C21 Next scheduled meeting March 20, 21 & 22, 1979.
C3) Mr. Milligan requested that the P & Z Commission reschedule
their March meeting to March 19th instead of March 21st.
(4) Presented staff remo ".. in regards to land in consideration for
a fire station out miller Pt., 2nd Addition, and stated that Chief
Magnussen had preference to Lot /A rather than Lot 5.
d: Other :
Mr. Milligan presented to the Commission a list of five items
from Mr. Stafford, city engineer, concerning sewer line in re-
gards to the Alderwood project.
Mr. Ball stated that he'd like to see the outdoor lighting satis-
factory in the eyes of the Commission, maintenance of the land-
scaping has to be taken care of, the drainage needs to be taken
care of behind the buildings and where the sewer break is located.
Item 5 should meet satisfaction of both P & Z Commission and the
Borough Assembly. Item 8 should take into consideration the.city
of Kodiak's recommendations and all the amendments made by the K.I.B.
& the P & Z Commission would have to be fulfilled. Item 11, the 1
acre would have to be designated somewhere within the site, and he
would want a letter of approval by Mr. Stafford,& Borough Building
Inspector.
Mr. Pugh feels that No. 1 in the Resolution that was passed, that
it has not been met. No. 5 has not been met, in that units are be-
ing occupied prior to a certificate of occupancy. No. 6 has not
been met, No. 8 has not been met in that units are being occupied
prior to the requirements of the city being met. No. 11 has not
been met, and he feels that the Commission should hold the develop-
er to condition No. 10. Feels that the outdoor lighting should be
taken care of.
Mrs. Crowe is in concurrence with what Ron & John • have already
stated.
Mr. Erwin agrees with everyone else except with Item 6 on the land-
scaping. (No specifications have been put down in regards to this
matter.)
Mr. Perez didn't make it to the meeting today with Alderwood.
Mr. Pugh suggested having a small sub-committee check out the
landscaping issue as being representative of the Commission as a
whole.
Mr. Ball moved that a committee made up of Mr. Pugh, Mr. Anderson,
Borough Building Inspector and the City Engineer to draft a letter
from the Commission to Alderwood. Seconded by Mrs. Crowe. Motion
passed by unanimous roll call vote.
QLANNING & ZONING COMMISSION MEETING - MINUTES PAGE 5
Held January 17, 1979, at 7:30 P.M.
IX COMMISSIONER'S COMMENTS
MR. PEREZ: Concerning Spruce Cape road area in regards to the State Highway
Commission exercised it's right to build a road over a easement that was a
dedicated easement. There has been some delay in opening this road up. He
would like to see the Borough Planning Department take steps to make sure
that there is no building or encroachment on these easements, and that they
are free and clear, which constitutes about 10 easements or right -of- way's.
X AUDIENCE COMMENTS
GREG FURIN: Confused about the contract zoning question, and his request
still remains on the table.
PLEASE NOTE: 3. Staff Report
c. Planning Director
Borough Assembly approved the amendment to the code dealing with
dormitories in the industrial district as a conditional use, and
now that that is a part of our zoning ordinance the New England
Fish Company request has been rescheduled for the February regular
meeting.
Borough Assembly acted upon the amendment to the off - street parking
requirements to the code, and presently that is on the books
Mr. Ball felt that the Rasmussen /Benton request should remain tabled
until the February meeting.
XI ADJOURNMENT
Chairman Busch adjourned the meeting around 11 P.M.
ATTEST:
APPROVED BY: ,
Chairman
P & Z SECRETARY
•G EORG E'A,.D I G40N'
QEN J. ESGH •
M.•GREGORY_PAPAS
S-ON
AN S; E S;G;H ; S
4 ATTORNEYS' AT 'LAW
650 "H STREET, "S.UITE• 200
NCHORAGE �ALAS.KA "•9950
anus,
Libby .Presnall"
C3.ty of
P.O. Box 1397 -
Kodiak' Alaska
Kodia%
Cost or .'Preparation-j. cif Lorraine''
Daytoi !s= Appeal'to:';city ;,Council:
;sittiing as ; a 'Board of Adjustment
:Dear M.3. "'.Presnall:
TELEPHONE :,
.. AREA'GODE 907
276 -2272 _ ,.
} Today:: we- received an itemized •.bill`,for the cost= of
preparation` -of- the .,:reco►rdi 'for : the' Dayton - appeal. : "
:previous ';correspondence, - .I` :,objected- =tti this =- assessment
;'. "costs c : e+ction' .17.20: 020 tD } ":: • of `the' ordinances of the - City ,'
of ,`Kodiak .,states a "If'= ;s _:.ciharge = or bond is:. required.: by the
Kodiak :;Island Borough ' Ecir- the'', preparation of the .record,
appellant shall: be ._notif iec3: ;O`f, that charge, '.;f ens or bond
appellant shall be :_ responsible -.for,; satisfying any "such ":
borough -,: :requirements:. " To 'date; : no one has. %,provided ine - with
-information',. deinonstrating.t.that; the , Kodiak Island .Borough: has
adopted a.:policyf ` which 'requires. the ..appellant . in' an • appeal
to the Board . of-: ;Adjustment to : PAY.. the -costs=-0f preparation • of the records. . :
•Please. Tote, that 'the : :cost,l.of ': the preparation of:
thet.record: includes -:a- rush: fee of ,$10$..;00::: "'`. Our. - client ' -who •.
• is -being 'assessed- for' these costs, : -did not authorize - prey
•paration- of- ".the :.record , 'on a.rush ; basis ";__ and _ not receive, '
the benefit. "of `that; type of,'preparation * .. As you know;
did not "receive` ;the. record'.`until the 'second- week in January,`
'which -.was well over; two::months after out initial', Notice of
Appeal.. It,. is inappropriate_ for. Ns..`aayton.to''pay this
cost.
We ;. also '. feel- it.' is inappropriate:'for,.Ms. -Dayton, :to'
pay the cost of • reproduction° of -the - 'record :_.for' various
parties. :Section' 17.10:030'.(B) states..- • "A= copy ,of` the
record :'shall be :.provided-" to °,;any .person on..request:.upon :-'
: payment: of` `reproduction; .costa. " :l.. would''=read `this, ,section
To: Libby Presnall
Re: Dayton Appeal
Date: January 17, 1979
Page:
70 .
of the ordinance to indicate that the reproduction costs
listed at $462..00 and-the costs for paper and for binders -
should be allocated among the-people who received the bene-
fit from the expenditures. Clearly ins. Dayton should pay
for the cost of one copy of the-record.: To reiterate the
foregoing, Ms ... Dayton. is not responsible for the coot of the
preparation of the record or"for the cost of reproduction of
copies for other parties involved.
matter.
We hope that you will - assist .us in clarifying- this
Sincerely,
11obert,l. Shoaf
•
RISJkpo
cc. Lorraine Dayton
cc: Anita Newell
cc: Barry Milligan
907.486.4837
,A
C
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0
u
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T
Kodiak Island Borough
Atten.: Harry Milligan
Box 1246 .
Kodiak, Alaska 99615.
DATE: November 29, 1978.
;'i`ttk01.017 REMITTED: $
•PLEASE DETACH AND RETURN WITH REMITTANCE -�
•
11/17/78 -
11/27/78
Harry Milligan hired our services to do the
following:
RE: Verbatim Translation on the P & Z
Commission meeting, held October.18 &..19,
.1978, concerning the Sunset Development
requests for variances.
Actual transcribing done during these dates
Breakdown of.costs are as follows:
BALANCE
FORWARD'14 $981.00
Verbatim Transcription, origional, 140 page
@ $2.20 /page .
3 copies made @ $1.10 /page •
Special supplies ordered for this. job.
`.
Paper
4.. Cover binders @ $2.00 each
Rush Fee
Typewriter Rental (equal to two "days time
, . ISLAND SECRETARIAL .SERVICE
308.00
462.00
15.00
8.00
188.001/
,.
$976.00 ..
PLEASE PAY
LAST AMOUNT •
IN THIS COLUMN
PONY NO. $T1TN, T141 TTATIONlNY HOLM, INC., P. 0. ON IS17, NAOrN1TDNN, MD. TITID,
KODIAK ISLAND BO
OUGH
Telephones 486-5736 - 486-5737 — Box 1246
. KODIAK, ALASKA 99615
16 January 79
Dickson, Evans, Esch & Papas
ATTEN.: Robert I.:,Shodf
880 "H" Street, Suite 200
Anchorage, Alaska 99501
RE: Notice of Appeal to Board of Adjustment
Dear Mr. Shoaf:
Enclosed you will find a copy of the itemized bill given to Mr.
Milligan on November 29, 1978. I hope this will provide you with the
information you were seeking from us.
We've received our receipt from the certified package we mailed
you containing the Verbatim Transcript and other materials regarding
to the above mentioned case. I'm so glad you now have it in your
hands.
May this new year bring you much success and fuller satisfaction
in your work helping people in their legal matters.
Sincerely,
Anita Newell
Engineer's Secretary
Planning Department
Enclosure
a..... a. far .✓ a.Yaa+• a l affil \a• N.....a aIVar
P. O. BOX 2684
KODIAK, ALASKA 99615
907. 486 -4837
Statement
C Kodiak Island Borough
c Atten.: Harry Milligan
° Box 1246
N Kodiak, Alaska 99615
T,
DATE: November 29, 1978.
-'i4.M01.441 REMITTED: S
— PLEASE DETACH AND RETURN WITH REMITTANCE —
f1:4 A
VOICE UFA lr ,QESGRIPtlp 1
CBARC
11/17/78
11/27/78
Harry Milligan hired our services to do the
following: .
RE: Verbatim Translation on the P & Z
Commission meeting, held October 18 &'19,
1978, concerning the Sunset Development
requests for variances.
Actual transcribing done during these dates
Breakdown of costs are as follows:
Verbatim Transcription, origional, 140 page
@ $2.20 /page
3 copies made @ $1.10 /page
Special supplies ordered for this job
Paper
4 Cover binders @ $2.00 each
Rush Fee
Typewriter Rental (equal to two days time
BALANCE
FORWARD $981.00
$308.00
462.00
15.00
8.00
188.00
ISLAND SECRETARIAL SERVICE
Muth
5.00
FORM NO. STUN. THE STATIONERY HOUSE. INC.. P. 0. FOR US S. NAVERSTONI .MO. SSNO
■
976.00
PLEASE PAY
LAST AMOUNT •
IN THIS COLUMN
DAV: 15 January 79
TO: BOOKLoor .
2 /V Cfrri'Grit
fir: $976.00
acCX'7C Nr: /4/7, 2
REI ARKS:
Payment for services rendered regarding Verbatim transcript'
done on the Planning and Zoning Commission meeting, e
and T9., 1978, concerning the Sunset Development Elderly Housing
Project. •
23 r ... /5%y S
r/z s. . I, / / sr7■7 yrI- P
• Authorized by:
(Title
La R RAI N -T. DAYTO N "7" •
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. ,
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, •.- KODIAKi ALASKA., '99615
PAYTO T114.1
ORDER OF
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GEORGE A. DICKSON
M. P. EVANS
DEN J. ESCH
M. GREGORY PAPAS
KELLY C. FISHER
.0c„
DICKSON, EVANS, ESCH & PAPAS
ATTORNEYS AT LAW
880 H STREET, SUITE 200 TELEPHONE
ANCHORAGE, ALASKA 99501 KA%dud: lstand „[QpE 907
KODIAK, AIA:1K/ 7�. •22'272
January 12, 1979 RECEIVED
JAN 18 1979
Clerk, City of Kodiak �� PM
Kodiak, Alaska 99615 fsl819�10e 012ola233t4A
Re: Transcript for the Dayton
Appeal of Variances granted
to Sunset Development Company
Dear City Clerk:
Attached is a letter our office received yesterday
from Anita Newell outlining the costs charged to our client,
Lorraine Dayton, for preparation of a transcript necessary
for her appeal to the City Council sitting as a Board of
Adjustment. I have several questions regarding this bill.
According to a recently adopted ordinance of the
City of Kodiak, Appellants to the City Council sitting as
the Board of Adjustment are to pay transcript preparation
fees as provided for by the Kodiak Island Borough. Upon
reviewing the Kodiak Island Borough Code, I did not find any
provisions which authorize the Borough to charge Appellants
in these types of cases for preparation of the record.
Therefore, I do not feel that Lorraine Dayton should be the
person to bear the cost of this transcript and record pre-
paration.
Our office is arranging for payment of the bill so
that we can proceed with our appeal. We hope that you will
reimburse this cost to us after you have made a study of the'
City and Borough Codes.
Even if you eventually disagree with our con-
tention that we are not responsible for paying for prepara-
tion of the record in this case, we would like to note that
assessing us for the rush charge for preparation of the
transcript is inappropriate. We did not request that the
transcript be prepared on a rush basis. It does not appear
to me that Mr. Milligan was authorized to make the decision
to order preparation on a rush basis. Additionally, because
of administrative handling of preparation of the transcript,
we did not receive it until January 11, 1979. The lapse of
time between our appeal and our receipt of the record does
not justify payment for the transcript on a rush basis.
To: Clerk, City of Kodiak
Re: Transcript/Dayton Appeal
Date: January 12, 1979
Page: Two
As a final matterlin reading the Code of the City
of Kodiak, it appears that each interested party to the
appeal is responsible for paying the cost of copying the
materials for their use. It appears from the attached
letter from Anita Newell that our client has been assessed
for those costs. At a minimum, we would like reimbursement
of those costs. .
Thank you for your assistance in this matter.
Sincerely,
Robert I, Shoaf
RIS/kpo
Enclosure
cc: Don Johnson,
Atty. for City of Kodiak
cc: Anita Newell
Island Secretarial Service
cc: Harry Milligan
Kodiak Island Borough Planning Office
ISLAND SECRETARIAL SERVICE
4a*S011144MICIIIIVOIIPAtareralt,
ATAIITIMIDM:enarenrealOglraMtralnitlb+0.20M411WAMAIRMKTIMMIMAMETAVAC5144r4 '•.4A0
Dickson, Evans, Esch & Papas
ATTEN.: Robert I. Shoaf
880 H Street, Suite 200
Anchorage, Alaska 99501
RE: Verbatim transcript on Planning & Zoning Commission-.
meeting held October 18 & 19, 1978.
Dear Mr. Shoaf:
In response to your letter of January 5th, I agree that
you are entitled to know what you're paying for, and much to my
regret, I assumed that Mr. Milligan had been in touch with you
prior to this. Until January 5th, I was under the impression that
Mr. Milligan had sent you the bill from our office, but on the 5th
he handed me the bill and a letter, in draft form, to be typed and
mailed to your office, which by now you have received. If that
bill does not answer your request for an itemized bill, then please
contact us and specify what it is you would like to have further
information on. When Mr. Milligan hired our services he told us to
.deliver to him three copies plus the original verbatim transcript,
and to get it to his office as soon as we possibly could. We nor-
mally allow two weeks to deliver a signed and sealed document to
our clients. This job required us to put in very long hours in or-
der to get it to Mr. Milligan in one weeks time. Because of this,
we added a rush charge as well. Other then the rush charge, every-
thing else on the bill is our regular fee for this type of work,
which is based on fees charged by Anchorage firms.
We feel badly that after working so hard to get this docu-
ment out in record time so that you could get on with your proceed-
ings, that you still haven't received the goods that you are now be-
ing billed for. Please accept our apologies for this delay.
If we can be of any further assistance please don't hesi-
tate to contact our office.
Sincerely,
Anita Newell
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Show to whom and date delivered
❑ Show to whom, date, and address of delivery- - ._0 i
❑ RESTRICTED DELIVERY
' Show to whom and date delivered
O RESTRICTED DELIVERY
i Show to whom, date, and address of delivery
\ (CONSULT POSTMASTER FOR FEES)
2. ARTIGcI,,E / DRE t:. r TO:
3. ARTICLE DESCRIPTION:
REGISTERED NO. CERTIFIED NO.
11.3,
INSURED NO.
(Always obtain signature of addressee or agent)
I have received the article described above.
SIGNATURE ❑ Addressee ❑ Authorized.agent
ADDRESS(Complete only it requeste
6. UNABLE TO DELIVER BECAUSE
No. _ ,i61.137.5
iECEIPT FOR CERTIFIED MAIL
NO INSURANCE "COVERAGE PROVIDED —
NOT FOR INTERNATIONAL MAIL
(See Reverse)
SE 0.41QRg ACiel
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SHOW TO WHOM AND DATE
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DELIVERED
SHOW TO WHOM, DATE, AND
ADDRESS OF DELIVERY
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SHOW TO WHOM, DATE AND
ADDRESS OF DEUVERY WITH
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Add your address in the "RETURN TO" space..
reverse.
e following service is requested (check one).
Show to whom and date delivered
Show to whom, date, and address of deliveryC
❑ RESTRICTED DELIVERY
Show to whom and tlate.defivei•ed.......
❑ RESTRICTED DELIVERY
Show to whom, date, and address of delivery .$
(CONSULT POSTMASTER FOR FEES)
2. A
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c/�n%c21
. AR ICLE DES IPTION:
REGISTERED NO.
CERTIFIED NO. INSURED NO.
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(Always obtain signature of addressee or agent)
have received the article described above.
SIGNAT1 ❑ Addressee ❑ Authorized agent
5. ADDRESS(Comp/ete only it requeste
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SR A¢NDO. II If rym
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OPTIONAL SERVICES
SPECIAL DELIVERY
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4
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SHOW TO WHOM AND DATE
DELIVERED
4
SHOW TO D DATE, AND
ADDRESS OF ESS OF DELIVERY
SHOW TO WHOM AND DATE
DELIVERED WITH RESTRICTED
DELIVERY
4
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SHOW S WHOM, DATE AND
ADDRESS OF DELNERY WITH
RESTRICTED DEUVERY
TOTAL POSTAGE AND FEES •
$
POSTMARK OR DATE ,,
NDER: Complete items 1, 2, and 3. i^
Add your address in the "RETURN TO" space..
reverse.
e following service is requested (check one).
Show to whom and date delivered
Show to whom, date, and address of deliveryC
❑ RESTRICTED DELIVERY
Show to whom and tlate.defivei•ed.......
❑ RESTRICTED DELIVERY
Show to whom, date, and address of delivery .$
(CONSULT POSTMASTER FOR FEES)
2. A
CLE ADDRESSED
c/�n%c21
. AR ICLE DES IPTION:
REGISTERED NO.
CERTIFIED NO. INSURED NO.
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(Always obtain signature of addressee or agent)
have received the article described above.
SIGNAT1 ❑ Addressee ❑ Authorized agent
5. ADDRESS(Comp/ete only it requeste
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6. UNABLE TO DELIVER BECAUSE:
*GPO: 1977— 0-249-595
GEORGE A. DICKSON
M. P. EVANS
BEN J. ESCH
M. GREGORY PAPAS
KELLY C. FISHER
DICKSON, EVANS, ESCH & PAPAS
ATTORNEYS AT LAW
880 H STREET, SUITE 200 1.902.10d bOrMICIL EP HONE
KODIAK, ALA,W.A„EA c 00 E 9 07
ANCHORAGE, ALASKA 99501
Mr. Harry Milligan
Kodiak Island Borough
Box 1246
Kodiak, Alaska 99615
RE. CF1V 276-2272
January 9, 1979 JAN 1 5 1979
4 PO)
1809qt503Q4201.9248540641
Re: Notice of Appeal to Board of Adjustment
Dear Mr. Milligan:
Thank you for sending us a copy of a bill for the pre-
paration of the transcript for the appeal to the City Council
sitting as a Board of Adjustment. We are making arrangements
with Lorraine Dayton for prompt payment of this expense. As
I stated upon our initial conversation regarding this matter,
we would like an itemized bill of the Nine Hundred Eighty-one
Dollar ($981.00) expense. We have requested the same from
Anita Newell and hope that either your or she will provide us
with the information.
As we agreed last Thursday, I am assuming that you will
mail us a copy of the transcript relying upon our promise
to send you the payment as soon as possible.
Sincerely yours,
Robert I. Shoaf
RIS/tn
cc: Lorraine Dayton
KODIAK ISLAND BOROUGH
Telephones 486 -5736 - 486 -5737 — Box 1246
• KODIAK, ALASKA 99615
Ms. Libby Presnell, City Clerk
City of Kodiak
P.O. Box 1397 '
Kodiak, Alaska 99615
RE: Record for appeal
Dear Madam Clerk:
"8 January 79
•
Attached is a verbatim transcript of the Planning & Zoning Commission
hearing on the zoning variances requested by the Sunset Development Co.,
and subsequently appealed by Mrs. Lorraine Dayton. By this letter, we
are also transmitting duplicate copies of the information, forwarded to
you, to Mr. George Dickson, attorney for Mrs. Dayton, and to Mr. Bernard
Dougherty, attorney for the Sunset Development Co..
The Borough record files relating to the Sunset Development Co. Elderly
Housing Project include materials involving the rezoning, replatting and
zoning variances. We have attempted to purge the files in an effort to
incorporate into this record only those items directly related to the
variances under appeal. Also attached is a list of all the witnesses
who testified at the October 18 & 19, 1978 hearing, as well as a list of
those persons notified of the hearing.
I hope this information is of assistance to you. If you have any ques-
tions regarding this matter, or feel any materials have been omitted,
please advise. The files relating to this property are in the Planning
Department offices and available for your review at your convenience.
Sincerely,
Harry Mi l l i ga
Planning Dir-ctor
HM /aan
Enclosure
cc: Mr. George Dickson, Attorney -at -law (with enclosure)
Mr. Bernard Dougherty, Attorney -at -law (with enclosure)
Mrs. Lorraine Dayton
Mr. Lou Iani
Mr. Donald Johnson, Attorney -at -law
Mr. Richard Garnett, III, Borough Attorney
I
K D1AK BO ' ®UGH
Telephones 486 -5736 - 486 -5737 — Box 1246
KODIAK, ALASKA 99615
5 January 79
George Dickson '
Dickson, Evans, Esch & Papas
880 H, Suite 200
Anchorage, Alaska 99501
RE: Notice of appeal to Board of Adjustment
Dear Mr. Dixon:
The Kodiak Island Borough has completed prepar4bion of the
record of appeal you requested. The record, including verbatim
trascript is ready to be transmitted to the City Clerk for the
City of Kodiak. A verbatim trascript of the Planning and Zoning
Commission hearing involving the zoning variances requested by
the Sunset Development Company was prepared by the Island Secre-
tarial Service here in Kodiak.
Enclosed is a copy of their bill for transcript prepara -=
Lion services. The Borough will transmit a copy of the complete
record to your office and that of the City Clerk upon receipt of
your check in the amount of $981.00.
Sincerely,
Ha Milligan •
Planning Director
HM /aan
Enclosure
cc: Sunset Development Company
Mr. Bernard Dougherty
City Clerk, City of Kodiak
HOYT M. COLE
ROBERT L. HARTIG
JAMES D. RHODES
JOHN K. NORMAN
ROBERT J. MAHONEY
BERNARD J. DOUGHERTY
MICHAEL W. SHARON
- -
G. RODNEY KLEEDEHN
J. MICHAEL ROBBINS
ROGER H. BEATY
STEPHEN D. ROUTH
WEV W. SHEA
EDGAR R, LOCKE
ANDREW M. HEMENWAY
OF COUNSEL:
G. KENT EDWARDS
COLE, HARTIG, RHODES, NORMAN & MAHONEY
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW .
SUITE 201
717 K STREET
ANCHORAGE. ALASKA 99501
(907) 274-3576
January 4, 1979
All Members, Kodiak Island
Borough Assembly
Mayor Betty Wallin
Stuart Denslow, Ph.D.
Mr. Harry Milligan
Ladies and Gentlemen:
ttocliak 'skin
KODIAK, Al.A:A
RECTIVH
JAN 8 1979
KFIPL TO:
218444%111121112A 15P e
KODIAK OFFICE:
202 CENTER AVE.. BOX 503
KODIAK. ALASKA 99615
(907) 486-3143
(907) 486-3144
d maw. W. SHARON
Re: Kodiak Elderly Housing
Project
Our File 1993-2
Please let me take this belated opportunity to thank you all
for your .patient consideration of the matter of the Kodiak
Elderly Housing Project which was before you on the evening
of December 7, 1978.
We appreciate your patient evaluation of the testimony and
wish to thank you for your time and effort expended on behalf
of the Kodiak Island Borough.
Kindest regards.
Very truly yours,
COLE, HARTIG, RHODES,
NORMAN & MAHONEY
By:
BJD:bad
cc: Louis Tani
Richard Garnett, Esq.
Bernard J. D gherty
1
KODIAK ISLAND BOROUGH
MEMORANDUM
DATE: 2 January 79
TO: HONORABLE MAYOR AND BOROUGH ASSEMBLY
FROM: Stu Dnsl-----
SUBJ: Final subdivision approval
RE: Request for Vacation and Replat submitted by Sunset
Development
The referenced resubdivision was approved by the Planning
and Zoning Commission during their regular meeting on December 20,
1978. Attached for your information is a copy of the plat, Planning
and Zoning Commission Resolution No. S-7B-24and the minutes of the
December 20, 1978 Planning and Zoning Commission meeting.
•
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•
KODIAK ISLAND BOROUGH
MEMORANDUM
DATE: December 11, 1978
TO: Harry Mill
FROM: Stu Denslo
SUBJ:
Engineering Department
Personnel & Facilities
At the regular December Borough Assembly meeting continued on
Friday, December 8, the matter of the urgent needs for the
Engineering Department was taken up by the Assembly. At the
conclusion of the discussion, the Administration has been
authorized to assure engineering candidates that a full-time
secretary to department head and office and necessary equipment
and operational expenses will be available to maintain the
Engineering Departments operating effectiveness. The Adminis-
tration will translate these decisions into the following action:
1. I have advised Anita Newell, secretary to department
head, Department of Erigineering,,that her position
has been funded on a full-time basis for the balance
of the fiscal year;
2. I have advised the Assembly that we have two candidates
for the engineer position and that there may be expenses
related to their relocation to Kodiak.
3. Vacation orders have been issued to non-public occupants
of office space adjacent to the Department of Planning
and Community Development. This space will be available
to the Engineering Department for the necessary physical
improvements to be undertaken as soon after January 1
as it can be accommodated by the construction industry.
cc: Anita Newell, Secretary
Department of Engineering
KODIAK "ISLAND BOROUGH ASSEMBLY-MEETING- DECEMBER 7,
( A Verbatim Record is on File in the Office of the Clerk)
978
I CALL TO ORDER
The meeting was called to order by Mayor Betty
6:30 P.M. in the Assembly Fleeting Room.
II ROLL CALL
Wa
in at
Present
Dr.. Michael Emmick
Mr: William- L- Fearn
Mr. Arnold T. Hansen
Mr:' =Eduard 'Jack
Mrs . - Sandra .Kavanaugh '
Mr. -Dan. Ogg
Mr.- James Peotier
Mrs, Betty J: 'Wallin
A. quorum was established
III ACCEPTANCE OF'-AGENDA'
Mayor Wallin requested 'that 'Items F and E,-in that order, be
taken up immediately after the Acceptance' of Ag enda. Mrs.
Kavanaugh moved • for acceptance. Seconded by 'Mr. 'Kensen:'
Motion - carried by unanimous roll call vote.
VII ;'PUBLIC HEARINGS
I i( F. Ordinance, x!78 -27- -0 Ratifying the Business District'' Zone of
Lot 39,' Block 2, `Erskine Subdivision, USS 562 ''and Clari fying.
the Business District Zone of -Tract A, USS 2537 -B and 562
('Sunset : Development Co.) . 11r. Eansen moved for adoption of
Ordinance 'i 78 -27 -0. Seconded by Mr. JP.ck.. Mayor Wallin
closed the ` regular meeting and opened the public .hearing.
Bernard J. Dougherty, Attorney for Sunset 'Devehopment'Co.:..
Cooke in favor of the ordinance. He described briefly. the ::...
history of Sunset Development :.even' before its formal inception.
Stated the density of the . 55-unit complex is well within the
HUD requirements. Feels this ' is ' a unique location for ' such
housing and-that-it fills a, great public :need..:.:,:
Dennis. Murray,.''Dir "ector: .off : the Senior .Citizens :; CO curred
Ij
1
with fir. :oughertyf s 'statements° ' Rev.wed•the.:Senior Citizens
program, it .Kodiak anT--- stressed their need for housing. Stated
I' that .at-present there are 33 relderly and 3 handicapped applic-
ants:,awaiting housing. .
IRobert,, hoaf, attorney ' for Lorraine .Daytona Spoke, against
, the'<.ordnance . Mrs. Dayton' is not against housing for the.
elderly' but 'opposes the, orinance since , the structure blocks
her view of the harbor and the Russian church. ,.:•`Questioned
the procedure and noticing taken by the P & Z commission,
\Public hearing closed; regular meeting reconvened. Mr.
\Garnett stated the ordinace would correct the defects new
present. Motion carried 5-2 with ,Mr. Fearn- and Mrs.
icasting NO votes`.
E.'' : rdinance`' #78 -26 -0 Rezoning Lot 39, Block 2, Erskine
,.Sub'dl/uision, USS 562, Tract A,- USS 2537 & 2537-B (Sunset
7e`ve1opment Co,) Mrs, Kavanaugh moved for adoption of‘
Qid'inarice IT78- 26-0, Seconded by Mr. Hansen. Mayor Wallin
kclosed the meeting and opened the public hearing.
No one spoke for the . :`ordinance..
Robert Sho of , attorney for . Lorraine Dayton: Spoke against
!the ordinance. Stated he was not sure of the intent of the
ordinance
KODIAK ISLAND BOROUGH ASSEMBLY MEETING-DECEMBER 7, 1978 PAGE 2
: .
Public hearing closed; meeting reconvened. Mrs. Kavanaugh / /
1 i felt the matter should be sent back to P & 7 'for recommendations.) I
, 1 5-2 'with Mr. Fearn and Mrs'. Kavanaugh casting NO votes.
1 Mr. Garnett stated this was not a pure rezoning. Notion cared;
,
_
IV MINUTES 'OF PREVIOUS MEETING
A. Assembly-Regular-November 2, 1978. Mr. Hanson moved for
acceptance .as presented. Seconded by Mr. Ogg. TIrs. Wallin
stated she "wants ,corrections spelled out when presented
for acceptence. The 'correction to minutes of Oovember 2, 1978
will read as. follows: Page 3, Item C, Line 4, "Amendment
died for lack of a second . Motion carried by unanimous roll
call vote..
v MINUTtV6P4:6TREROPiggtIMETI • '
• ".,, ,
A. P &: Z. Commission-Regular-September 20, October 18-19-
November 1, November l5 and:$pecial'October 197:: _
B. ' Sehop 1, Board-OctOber .23, 1978.. -
C. :KIB ,PerSOnnol ..Board-Quarterly,.SePtember; 25 „ •1978.
D., *Mental' HealthjOctober 18;-.1978
Mr, Hansen.moved-to take up in a group and approve as
presented.' *Seconded by Mr,. Fearn, . Motion carried-by unani- •
MOuS roll '68.1A.vcte.' •
VI COMITNICATION'S & APPEARAI\TCES
A. Appointment 'of TWo City -Member's' to' P 5:2 Commission. Mayor
Wallin read the correspondence and appointed Virginia Crowe
and Phil AnderSon.. MQgg in:dVed 65 ratify...••• Seconded by .1r.
Hansen ::; Kot ion:: withdrawn with c6nsent4f seeond jayor ' •
stated the name would be taken up one at a time *e-Ptr; 0 cr.g1_,
moved for ratificatibn of "Phil Anderson 8eC ond ea' bg;_.11rS4.::,
Kavanaugh. Motionv .:carried "P arn 64qt:trig.. one NO
vOte..: Mr*. 'ri-i6Y48,' for- 6f. Virginia. Ci;owe:'
Seconded by Mr. JTansen. Motion carried 5-2 with Mr. Ja.ck and
Mrs.. = Kavanaugh :' Casting: NO votes „ The 'Clerk was instructed to
not.ify lir. -4.^,nderson and Mrs Crowe of their appointments by
=
B. Transfer of Liquor IiCenses- Rende zvoUsl' f(ns'S lin and .ffOod
:to tionr0).*: Dr. Euthiick moved t6 vice, no. •bbie' '-SecOnded'
by tir. Jack: ,:l.iotion carried by u.naninrpus_roll call v_ote.
C. . Appointments td ; Personnel L oards ( tWO Mr . Han s en moved
to appoint Sohn, Halverson as the; ihinority. meMber.
‘Seconded by lifi,Peotter,i' MOtion-'earried'byi.unani*ous ro1 .
call2yote:, Mr. Jack moved to reappoint Carol SMothers'. •
Seconded -by .Mr'. Hansen. Motion carried by_ unanimous roll
call vote.
D. Appointments to Health Resources Advisory Council ( two).
Hanlen .1P•Oved' cms =Le r
Seeond6d. by'lvrr. Jack. Motion carried by unanimous roll call
Mrs. Kavanaugh moved to appoint _pr, jahrip. op as a
provide. . *SebOnded` by Mr. Peotter. Motion carried by una,ni.-
MbUs roil Cala.' vote.
P3.:* ten minute rece"Ss 'was taken at 7:50 P.M.. Meeting reconvened
at 8 : 0.0 P.M. •
E. Letter Requesting Amending the Parking Provisions of the
Zoning Ordinance from Richard Huffman, Attorney at Law. Mr.
Peotter read the correspondence and ordinance. Pr. Emmick
moved to assigna_number and adopt at first reading and..refer(7.,0-6)
to P & Z for comments and recommendations Seconded by Mrs.
Kavanaugh. Motion carried 6-1 with Mr. Fearn casting one NO
vote. •
, LetterOMToii.y.UrnsRe
Photography. Mr. Ogg read the
will be attending. Dr. Emmick
pate. Seconded hy Mr. Peotter
NASA Pi-ogram Reiew-Air
correspondence. Mr. Milligan
moved that the borough partici-
. It was exmlained that local
("N
•
KODIAK ISLAND BOROUGH ASSEMBLY MEETING-DECEMBER 7, 1978-L\GEI'TDA
I CALL*TO ORDER
II ROLL CALL
III ACCEPTANCE OF AGENDA
IV MINUTES OF PREVIOUS MEETING
A. Assembly-Peg.-Nov. 2, 1978
V MINUTES OF OTHER MEETINGS
A. P & Z Commission-Reg.-Sept. 20, Oct. 18-19-'4ov. 1, Nov. 15
& Spec. Oct 4, 1978
B. School Board-Oct. 23, 1978
C. KIB Personnel Board-Quarterly-Sept. 25, 1978
D. Mental Health-Oct. 18 1978
VI COMMUNICATIONS & APPEARANCES
A. Appt. of 2 City Members to P & Z Commission
B. Transfer of Liquor Licenses-Rendezvous (Ensslin&Hood to Monro)
C. Appts. to Personnel Board (2)
D. Appts. to Health Resources Advisory Council (2)
E. Ltr. Requesting Amending the Parking Provisions of the Zoning
Ordinance from Richard Huffman, Attorney at Law
F. Ltr. from Tony Burns, Re: NASA Program Review-Air Photography
VII PUBLIC HEARINGS
A. Ord. #78-22-0 Deletion of Sec. 20 of Ord. #73-4-0, Title 2,
Chap 2.04.210 of KIB Code, Dispensing of Liquor on Election
Day
B. Ord. #78-23-0 Proposal for Compensation of Regulatory 8 Quasi-
Judicial Boards 8 Commissions
C. Ord. #78,24-0 Amending Sec. 411 of Personnel Ord. #77-31-0
D. Ord. 1(78-25-0 Amending Title,18 of KIB Code Gravel Site Leases
"----LAilau=Laicia2a2ning L. 39, B. 2, Erskine Subd. USS:5
WT''I"Twg72757T;77:8:2_537-:3 :(-Sup s et Development io)
1Z:7-4Pd • #7-3-:.2-7-0, Rat ifying—the Bus ;_ -Dist-, Zone ,k)f Ate,
rSkiffe,Subd.,USS aa2_8Clanifying_the-Btls_ DfilA Zpo
.X•r,:.__A_;_USS--2_5.3_7_,B_&__5_6.2___(_Sunse:t__De_velopment C6-0
G. Capas Appeal of P 8 Z Commission Decision of Vaca. 8 Replat of
Lot Line Contiguous to Ls. 11 8 10A, B., 1, Russell Estates .
H. Large Notice of Lease Proposal on P-4, Tr, A, Bells Flats'AK
Planning Commission Report on Tabled Public Hearings RE: I,J,K,L
I. Ord. 1I78-12-0 Rezone L. 1, B. 1, Tr. M, USS 3218 Unclassified
to Industrial (Alagnak, Inc.)
"J. Ord. #78-13-0 Rezone L. 2, B. 1, Tr. M, USS 3210 Unclassified
to Industrial (Wittich).
K. Ord. #73-14-0 Rezone Tr. S-2,, USS 3218 Unclassified to
Industrial (Bre. chan Enterprises)
M. Erdman Board of Adjustment Hearing Re: Vaca, & Replat of Lot
Line Common to Ls. 14 8 15, B. 2, Monashka BaySubd.
VIII OLD BUSINESS
A. Financial Statements for Year Ended June 30, 1978
B. Community Development Grant Letter on Internal Control &
Accounting Procedures Dated August 31, 1978
C. Special Report on State Revenue Sharing Compliance Dated
August 31, 1978
D. Federal Shared Revenue Compliance Report Dated August 31, 1973
E. Statement of Sources of Funds 8 of Program Costs Commpnity
Development Block Grant Funds for 11-29-76 to 6-30-78
F. Ltr. of Internal Control 8 Accounting Procedures 8-31-78
IX NEW BUSINESS
A. Setting Date for January Meeting (Jan. 12)
B. 1st Rdg. Ord. #78-30-0 Rezoning of Trs. A,B,C,D,E9F9G,
Kadiak Subd. to Residential
C. 1st Rdg. Ord. #78-31-0 Rezoning of Trs. A,B,C,D,E,F,G,
Kadiak Fiihr1. 4-,
KIB ARRP,MRLY MEETING-DECEMBER 71 1978-AGENDA PAGE 2
•
D. '1st Rdg. Ord. #70-32-0 Amending Title 17 of KIB Code Re:
Dormitories
E. 1st Rdg. Ord. ;•18-33-0 Amending the Schedules Relating to
Pay Ranges & Class Titles for Employees of KIB 8 Providing
an Effective Date
F. Resol. #78-72-R Impleading the Gov. & rept. of Transporta-
tion C. Public Facilities for Further Paving of -Highways
in KIB
G. Resol. #75-73.-R Final Plat L. 7 B. 1, Bells Flat's •\K" Sub.
(William G. Williams)
H. Recommendation from KIBSD.,reference 'Architectural Consultant
for Ouzinkie & Larsen Bay High Schools
I. Resol. ;73-74-R Making Application for School Construction
Grant Ouzinkie High School
J. Resol. 7-75-R Making Application for School Construction
Grant Larsen Ray High School
K. Financial Statement
L. Sch. Dist. Ppt. of Revenues Expenditures October 197'(;
M. Monthly Activities Rpt. October 1978
X MANAGER'S REPORT
XI ASSEMBLY COMMENTS
XII MAYOR'S COMMENTS
XIII AUDIENCE COMMENTS
XIV ADJOURNMENT
KODIAK ISLAND BOROUGH
BOX 1246
KODIAK, ALASKA 99615
THIRD CLASS
KODIAK ISLAND BOROUGH
ORDINANCE NO. 78-26-0
AN ORDINANCE OF THE KODIAK ISLAND BOROUGH. ASSEI1BLY
reaffirming the zoning status of Tract "A", USS 2537 B and
Lot 39, Block 2, Erskine Subdivision, USS 562 (Sunset Develop-
ment Company):.
BE IT ORDAINED by the Kodiak Island Borough Assembly,
that
SECTION 1. The Assembly finds that Tract "A" USS 2537 B
and Lot 39, Block 2, Erskine Subdivision, USS 562, are zoned
Business.
ATTEST:
rough Clerk/Treasurer
KODIAK ISLAND BOROUGH
Byy
Bo pugh Mayor
REQUESTED BY The Sunset Development Company
PREPARED BY The Department of Planning and Community Development
FIRST READING AND APPROVAL DATE: November Z, 1918
SECOND READING, PUBLIC HEARING, PASSAGE DATE: i2/7/7e.
ADOPTED ON:
4
KODIAK ISLAND BOROUGH
ORDINANCE NO. 78-27-0
AN 'ORDINANCE OF THE KODIAK ISLAND BOROUGH ASSEMBLY
RATIFYING THE BUSINESS DISTRICT ZONE OF LOT 39, BLOCK 2, ERSKINE
SUBDIVISION, U. S. SURVEY 562 AND CLARIFYING THE BUSINESS
DISTRICT ZONE OF TRACT "A", U. S. SURVEYS 2537-B AND 562.
WHEREAS, Alaska Statutes 29.33.090 empowers the Boroug
to enact zoning plans and to provide for its administration,
enforcement and amendment, and _
WHEREAS, the Kodiak Island Borough has pursuant theret
adopted Chapter 17 of its Code of Ordinances and Resolutions
which contains planning and zoning provisions and procedures, an
WHEREAS, Ordinance No. 74-5-0, adopted March 7, 1974,
rezoned Lots 40, 41, 42, 43, 44, and 45, Block 2, Erskine
Subdivision, U. S. Survey 562 and Lot 12, Block 1, Kodiak
Townsite, U. S. Survey 2537-B (replatted as Tract "A", U. S.
Surveys 2537-Band 562) from R-3 to Commercial, and
WHEREAS, a complaint (Case No. 3AN-78-3988) has been
filed in the Superior Court for the State of Alaska, Third
Judicial District at Anchorage, alleging that the preamble of
Ordinance No. 74-5-0 restricts the height of buildings in the
established business zone, and.
WHEREAS, Ordinance No. 7 0 adopted July 1, 1976,
rezoned Lot 39, Block 2, Erskine Subdivision, U. S. Survey 562
from R-3 to Business, and
WHEREAS, said complaint also alleges that Ordinance N
76-17-0 is void because of deficiencies in the notice of Assembly
action regarding this ordinance, and
WHEREAS, a petition has been received by the Planning
and Zoning Commission from the property owner, Sunset Development
Company of Kodiak, requesting that the zone of Lot 39, Block 2,
Erskine Subdivision, U. S. Survey 562 be ratified as business and
that the zone of Tract "A" U. S. Surveys 2537-B and 562 be
clarified as business without additional restrictions'as to
building height, and
WHEREAS, the petition was considered by- the Planning
and Zoning Commission on the 18th day of October 19.78, and,
based upon its determination that the property is presently zone
btAiness, said body decided not to make any recommendation
regarding the petition, and
WHUEAS, the Assembly recognizes the shortages of
adequate housing for the elderly of Kodiak and desires to prevenu
any delay in-the occupancy of the Kodiak Elderly Housing Project,
and
WHEREAS, the Assembly desires to remove any questions
regarding the validity and effect of prior Assembly actions, and
NOW, THEREFORE, BE IT ORDAINED, by the Borough Assembl
of the Kodiak Island Borough that Lot 39, Block 2, Erskine
Subdivision, U. S. Survey 562 is Zoned business; that Tract "A",
U. S. Surveys 2537-B and 562 is zoned business without additiona
restrictions as to building height; that notice of this ordinanc
be given by publication in the Kodiak Mirror seven days prior to
the Second Reading and public hearing thereon; that the public
hearing be held thereon on the date of the second reading; and
that this ordinance shall be in full effect at the time of
adoption.
KODIAK ISLAND BOROUGH
Bygi
B6rough Mayor
ATTEST:
o ough Clerk •
First Reading, Approval Date: November 2, 1938
Second Reading, Public Hearing, Approval Date: /z/Vv.es
Effective Date:
Page Two
Ordinance No. 78-27-0
.7
)DIAK ISLAND Boor ),UGH
P. 0. Box 1246
Kodiak, Alaska 99615
From the Borough Assembly
Date: November 30, 1978
THIS IS TO NOTIFY YOU THAT A PUBLIC HEARING WILL BE HELD,
REQUESTED BY Sunset Development Co, : SAID REQUEST A/AN
Rezoning
AS SPECIFICALLY DEFINED
BELOW:
REQUEST:
Reaffirming the zoning status of
LOT (S) 39 BLOCK 2 ADDITION. Erskine
SURVEY# 562 , Tract A USS 2537 6 2537B
YIOU ARE BEING NOTIFIED BECAUSE YOU ARE EITHER THE PROPERTY
WNER OF THE ABOVE REFERENCED LOTS, OR A PROPERTY OWNER
LIVING WITHIN 300 FEET OF THE ABOVE MENTIONED LOT (S). YOU MAY
VOICE YOUR OPINION AT THE TIME OF' THE PUBLIC HEARING, OR A
WI RITTEN OPINION THAT CAN BE READ INTO THE MINUTES OF THE
PUBLIC HEARING, IF YOU CANNOT ATTEND.
VERY TRULY YOURS,
KODIAK ISLAND BOROUGH
PUBLIC HEARING TO BE HELD
IN THE MEETING ROOM OF THE KODIAK ISLAND BOROUGH OFFICE BUILDING.
ELY:
Thursday
TIME:
6:30 P.M.
DATE: December 7 7 1978
•
HOYT M. COLE
ROBERT L HARTIG
JAMES D. RHODES
JOHN K. NORMAN
ROBERT J. MAHONEY
BERNARD J. DOUGHERTY
MICHAEL W. SHARON
- - -
G. RODNEY KLEEDEHN ,
J. MICHAEL ROBBINS
ROGER H. BEATY
STEPHEN D. ROUTH
WEV W. SHEA
EDGAR R. LOCKE
ANDREW M. HEMENWAY
OF COUNSEL:
G. KENT EDWARDS
COLE, HARTIG, RHODES, NORMAN & MAHONEY
'A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
SUITE 201
717 K STREET
•
ANCHORAGE. ALASKA 99501
(907) 274-3576
November 15, 1978
Planning and Zoning Commission
Kodiak Island Borough
P.O. Box 1246
Kodiak, Alaska 99615
Gentlemen:
KODIAK OFFICE:
202 CENTER AVE.. BOX 503
KODIAK, ALASKA 99615
(907) 486-3143
(907) 486-3144
MICHAEL W. SHARON
REPLY TO: Kodiak
&rata% Island Borough
KODIAK, A1Ali5A
CPECFIVFO
. 1gs
i)0
4
RE: Kodiak Elderly Housing Proje&t
Our File No. 1993-2
As you may remember, during the hearing on October 18,
1978, regarding this 'matter a question arose as to the
distance between Mrs. Dayton's property and the property
owned by Sunset Development.Company. Mr. Dougherty
stated that a land survey established that the distance
exceeded 300 feet. A letter confirming the surveyor's
verbal report is.enclosed for your review. It should
be noted that the measured distance is between the
closest points and that lot 39 is.located even.further
from Mrs. Dayton's property.
-If you have any questions regarding. this matter or
require further information, please feel free to contact .
me.
Sincerely yours
0_,AA)57;
C. Walter Ebell
CWE:ad
cc: Sunset Development Company
Richard Garnett, III, Esq.
George Dickson, Esq.
enclosure
1
ROY A. ECKLIJND P.O. Box 146 Kodiak, Alaska
Professional Land Surveyor
October 31, 1978
Sunset Development Company
P. O. Box 1275
Kodiak, Alaska 99615
99615 tel. 907 486 3198
Re: Horizontal distance between Lot 9, Block 6, Erskine Subdivision,
U. S. Survey No. 562, and Tract "A", U. S. Survey 562, U. S. Survey
2537-B.
Gentlemen:
The shortest horizontal distance between Lot 9, Block 6, Erskine Subdivision,
U. S. Survey 562, and Tract "A", U. S. Survey 562 and U. S. Survey 2537-B,
based on an electronic field measurement, is 303.9 feet.
If you have any questions, please feel free to call at any time.
Sincerely,
c,41,471
Roy A. Ecklund
Registered Land Surveyor
DATE:
TO:
.FROM:
RE Sunset Development, Case #Z =78 -075 &' #V -78 -076
MEMORANDUM
14 November 78
Planning & Zoning Department
ATTEN'..: Harry Milligan
Island Secretaril
Anita Newell
On this day, 14 November 78, upon request of-the :`-
'Planning and Zoning Department, I have taken the tapes recorded of
the October 18th meeting,held in the Borough Assembly. Chambers; to
make a Verbatim Translation of that meeting, which reconvened on.
October 19 and again on November .1st :".- The ''tapes of October 19 -&
November 1st will be checked out when-the October 18th meeting is
completed.
Anita Newell
DATE: 28 November 78
TO:
PLANNING & ZONING DEPARTMENT.
ATTEN.: Harry Milligan
FROM: Island Secretarial
Anita Newell
RE: Return of tapes - October 18th & l9th, -1978
On November 27, 1978, the tapes taken from the P & Z
Department regarding the Sunset Development case #'s
for verbatim translation were returned to this office.
Verbatim transcript, was handed to Harry November 28,
1978 for his approval and to'compile.the exhibits
and corresponding numbers that need 'to be included in
this transcript before -being .given. to those parties
desiring a copy.of: :this transcript.
Anita Newell
KODIAK ISLAND BOROUGH
Telephones 486-5736 - 486-5737 — Box 1246
KODIAK, ALASKA 99615
November 7, 1978
Robert I. Shoaf
DICKSON, EVANS, ESCH & PAPAS
880 H Street, Suite 200
Anchorage AK 99501
Dear Mr. Shoaf:
This letter is to acknowledge receipt of your letter regarding
Case No. 1030.01, Sunset Development Company for the Elderly
Housing Project.
On November 2, 1978, the Kodiak Island Borough Assembly intro-
duced in first reading a zoning ordinance regarding the zoning
of the property where the Sunset Development Company Elderly
Housing Project is located, specifically Lot 39, Tract A. These
ordinanceshavebeen calendered for Public Hearing before the
Borough Assembly on December 7, 1978, during the Assembly's reg-
ular meeting for the month of December.
Your letter of October 31, 1978, will be forwarded to the Assembly
for inclusion in the Assembly's packet of information regarding
those two Public Hearings.
If you have any questions regarding this matter, please advise.
Sinc ely,
Harry illi
Planning Director
cc: Bernard J. Dougherty
Richard W. Garnett, III
Stuart Denslow
Shirley (Mickie) Miller
GEORGE A. DICKSON
M. P. EVANS
BEN J. ESCH
M. GREGORY PAPAS
KELLY C. FISHER.
DICKSON, EVANS, ESCH & PAPAS
ATTORNEYS AT LAW
880 H STREET, SUITE 200
ANCHORAGE, ALASKA 99 5 0 I
November 7, 1978
City Council of Kodiak
P.O. Box 1397 •
Kodiak, AK 99615
Kodiak Island Borough Assembly
City of Kodiak
Kodiak, Alaska 99615
Re: Kodiak Elderly Housing Project
Dear Council & Assembly Members:
TELEPHONE
AREA CODE 907
276-2272
Island boroitO
vooiAK, ALA!"KA
RECEAVIS1)
NOV '15'1978
P-Nt
IS kP Iii113.11Th e213;4%;':'j
On November 21, 1978 the Superior Court for the
Third Judicial District will hear oral argument on Sunset
Development Company's Motion to Stay Judicial Proceedings in
the case of Lorraine Dayton v. Kodiak Island Borough, the
City of Kodiak, and Sunset Development Company. The purpose
of this hearing on the Motion is to determine whether or not
the Court should intervene in the administrative processes
initiated by Sunset Development Company which are currently
being appealed to the Council and to the Assembly. On
behalf of Lorraine Dayton, we reiterate our request that you
postpone further proceeding until the Court determines
whether or not legal issues need to be settled before you
can take effective and meaningful action. Because of the
obvious need for quick action, we feel that the Superior
Court will render a speedy decision on the Motion to Stay
Judicial Proceeding. This decision will allow you to deter-
mine whether or not you feel it is appropriate to continue
with the administrative action prior to further judicial
proceeding.
Thank you for attending to our request.
Sincerely,
Robert I. Shoaf
RIS/kpo
cc: Robert J. Mahoney
cc: Richard Garnett, III
KODIAK ISLAND BOROUG#ASSEMBLY MEETIG-fl-OVEMBTr 2 197 PAGE 4
reading of Ordinance ::75-25-0. Seconde d "r. Peotter. 'rayor
suggested studying the second page. 7/otion carriec by unanimous
roll call vote.
1--R. 1st Reading Ordinance P75-20-0 Rezone Lot 39, Block 2 7:rskine
Subdivision, USS 562, Tract P USS 2537 & USS 2537 B (Sunset
Development Co.). Mayor Wallin read lemo dated October 26, 1972
And letter dated October 25, 1972. Dr. ra'Imick moved for adoption
of Ordinance 7-26-•O at first reading. Seconde bvMr. Hansen.
Motion carried 6-1 with Mr Fearn casting one O vote.
J. Report' of P S Z Commission on Variance Request (Sunset ;vevel-
opment Co.) and Ordinance I/78-27-O Jr Denslow stated the P [; 7
Commission had approved the requested variances involved in the
case and recommended Ordinance #73-26•0. Cole, Hartig, Rhodes,
Norman Mahoney submitted an ordinance, 778-27-0. to be considered
which would clear .up the status of the hearing notices at the timedi
Lot 39 was rezoned. Dr,_Emmick moved.eto take uP_Ordinaneeel.73r27-6
officially. Seconded by Mr. Peotter. Fotion carried by unanimous
roll call vote. A fiva-minute recess was called. "rrs. Kavanaugh
-moved for adoption of Ordinance P18-27-0. Seconded by Mr. Peotter.
Motion carried 6-1 with Mr. Fearn casting one i0 vote.
\--n. 1st Reading Ordinance ;178-28-0 proposing elimination of Borough
Personal Property Tax. Dr. Ermick moved for adoption of Ordinance
1178-28-0 at first reading. Seconded by' _Ogg. Dr. Erick read
Ordinance 175-28-0. Z1r. Peotter moved to amend by _Putting it to
the voters at a special election. Seconded by 'irs. Kavanaugh.
Amendment carried 4-3 with Dr. Emmick, 'Ir. Hansen and Mr. Oqg
casting, No votes. Jain motion carried 6-1 with 1-rs. Kavanaugh
,casting one NO vote.
L. Resolution ,[78-71-R Proposing Adoption of Resource Sales Tax.
Mr. Peotter moved for adoption of Resolution 00-71-R. Seconded,
by Hr. Hansen. Hr. Jack moved to table Resolution 17-71P until
after second reading of Ordinance 1172-28-0. Motion died for lack .
of a second. Hr. Jack moved to amend °,esolution 7-71-. to read
value added tax may be levied on resources within the borough-.
Seconded by Hr. Peotter. rirs. 1<avanaughmoved to emend to_require,
this to have a _public hearin:, in order to be passed. Secondedeby
Mr. Jack. Second amendment carried bvunaninous_roll_call_vqte
(public hearing). First amendment failed 1-6 with 1)i mmicJcr.
Fearn, Er. Hansen. Hrs. Kavanaugh, Mr Ogg and Fr. Peotter casting
AO,votes. Main motion carried 5•2 with Dr. Emmick and rrs.
Kavanaugh casting N0 votes. Oscar'Dyson, fisherman, spoke in
opposition to the resouroEsales tax. Jrrs. Kavanaugh troved to
process Ordinance 1178-28-0 and Resolution #73-71-R in_the same.order
at the December 7th meeting. Seconded by Mr Peotter„lotion
carried 6-1 with Mr. Jack casting one NTO vote.
N. P g Z Commission Report and Recommendation including proposed
Ordinance if72-29-0 Rezoning Tract :, USS 3461 (Kodiak Western
Airways). 'Hrs. Kavanaugh moved for aqoption of Ordinance 1178-29-0
at first reading. Seconded by Hr. Fearn. Potion failed 3-4 with
Dr. Emmick, Mr. Fearn. Mr. 0p7 and Mr. Peotter castinv 40 votes,
O. Service Payment Request, Chamber of ,Cormerce, moved
the manager respond that the Borough does not have budgetary provi-
sions for this request. Seconded by Mr. Peotter. It was pointed
out that the Borough provides rental space for the Chamber of
Commerce, which in fact is a contribution. Motion carried. by
unanimous roll call vote.
P. Fiscal Statement as of June 30., 1973. Nr. Peotter moved to
acknowledge receipt. Seconded by '■rs Kavanaugh. It was pointed
out that a couple of trips to Washington. D. C. on land matters had
come out of Account 143.08. Notion carried by unanimous roll call
vote.
Q. School District Report of 'Revenues S 'Expenditures, Sept. 1978.
Mr. Peotter moved to acknowledge receipt Seconded by Mrs. Kavanaugh.
Motion carried by unanimouS roll-call vote.
It was the consensus of the assembly to remain after the 11 P.M.
cut off time to finish the agenda. e
KODIAK ISLPND bOROUGP ASSEr,LY MITTIIG-70VFFBLR 2 197R P'17,E 3
Figh School fund be let for the high school parking lot only and
the balance, if there is an excess, be taken from the capital
improvement fund. Seconded by mrs. I(avanau1' rs Kavanaugh moved
to amend the motion that the plans be approved by. theeborough
assembly before the bid is let. Seconded by Mr. Fearn. (ipproxi-
mately $160 ,000 left in the High School fund) ,Amended motion
carried unanimous roll call vote,' Main motion carried by
unanimous roll call vote. Mr. Peotteremoved_to acgept_the plans.
Seconded by Mrs. Kavanaugh. Notion carried by unenimous- roll
call vote.
IX NEW BUSINESS
Mr. Ogg moved to change the order of Items L & M to take Item M
before Item L. Hearing no objection ,_Mayor wallin so ordered.
A. Resolution P78-67-R Relating to Policy for Land Disposal. Mr.
Hansen read the resolution Mrs Kavanaugh moved for adoption
of Resolution 176-67-R. Seconded by Mr Peotter. 'otion carried
by unanimous roll call vote.
B. P & 7, Commission Land Disposition Peport. Fr. Fearn read the
correspondence. Mr. Peotter moved to accept the P & 7; Commission
Land Disposition Report. Seconded by Mrs. Kavanaugh. Mr. Peotter
amended the motion to change the word "accent to adopt» Seconded
by Mr. Jack. Mr. Ogg amended to delete P & 7 report comments on
Parcels 2 and 3. To identify the parcels to he put for'sele, rr.
Fearn read the, entire list the recommendation was read as well as
having each parcel pointed out on the map. 71:.s. Kavanaugh
seconded motion made by Mr. Ogg. :Tr. Denslow stated this will not
be the last land sale. There will be approximately 30 lots for sale
sale in two sales planned for the next siez. months Second amendment
failed 1-6 with Dr. Emmick Fearn Mr. Eansen, T'r. Jack. -irs.
Kavanaugh and Mr. Peotter castinge-0 votes. First amendment carri00
6-1 with Mrs. Kavanaugh casting one 40 vote. :lain motion carried
6-1 with Mrs Kavanaugh casting oae 70 vote.
C. Resolution 8-70-n :arthorizing Land Sale. r.esolution real
by Mrs. Kavanaugh. Dr. Emmick moved to accePt resolution 787n..j
Seconded by :fr Jack. Mrs. Kavanaugh moved to amend to delete
V2, last paragraph. Motion died for lack of a second . liotion
carried 5-2 with Mr. Fearn and Prs, Kavanaugh casting NO votes.
D. , Resolution 1:79-68P rezone and replat of portion of Kadiak
AK Subdivision, USS 3469. Mr. Jack read the communication.
Mr. Hansen moved for adoption of Resolution V7R-68-R. Seconded
by Mr. Jack. Mr, Denslow stated that part of the changes made
in Title 18 provided for liberal interpretations by the assembly
with regard to development terms Motion carried 6-1 with 'irs.
Kavanaugh casting one !To vote.
E. Resolution :"13-69-R Final plat of unsubdivided portion of
AK Tideland Survey 149 into Tract '1-41 (City of Kodiak). Mrs
Kavanaugh moved for adoption of Resolution ;78-69-R. 'Seconded
by Mr. Hansen. Motion carried by unanimous roll cal]. vote.
Fa 1st Reading Ordinance 178-22-0 Deletion of Sec. 20 of
Ordinance73-4-0, Title 2, Chapter 2.04.210 of the KIR Code,
Dispensing of Liquor on Election Day. pr. Emmick_moyeecl! for
adoption at first reading. Seconded by nr. Tiansen.. Totion carried
4-3 with Mr. Fearn, Ja-s. Kavanaugh and 'qr. Peotter casting '101
votes.
G. 1st Reading Ordinance P78-23-0 Proposal for Compensation of
regulatory and quasi-judicial boards and commissions. Dr, Thmick
moved for adoption at first reading. Seconded by elr. Hansen. This
would be taken from the contingency fund. This was initiated, by
the borough assembly. Mr. Jack moved to amend to deleTe
from Ordinance #78-23-0. Seconded by Dr. Emmick. 1.mendment
carried by unanimous roll call vote, rain motion carried 5.2
with Mrs. Kavanaugh and Tr. Orrfr casting '0 votes.
H. 1st Reading Ordinance 178-211-0 Amending Sec. 411 of the Personnel
Ordinance 1:17-31-0. igrs. Kavanaugh moved for adobtion of
Ordinance 17&-24-0. Seconded by ;4r,__Jack carried_by
unanimous roll call vote.
I. 1st Reading Ordinance 57D-25 •0 Amending Title 13 of NIB Code
Gravel Site Leases. Dr. Emmick moved for adoption at first
GEORGE A. DICKSON
M. P. EVANS
BEN J. ESCH
M. GR EGORY PAPAS
KELLY C. FISHER
DICKSON, EVANS, ESCH & PAPAS
ATTORNEYS AT LAW
880 H STREET, SUITE 200
ANCHORAGE,ALASKA 99501
October 31, 1978
Kodiak Island Borough Assembly
City of Kodiak
Kodiak, Alaska 99615
Re: Request for Zone Clarifications
from Sunset Development Company
for the Kodiak Elderly Housing
Project, Out File No. 1030.01
Dear Assembly Members:
TELEPHONE
AREA CODE 907
276-2272
We are writing on behalf of Lorraine Dayton to
request that you delay your consideration of Sunset Develop-
ment Company's request for zone clarification of the Kodiak
Elderly Housing Project. Lorraine Dayton is presently suing
the Kodiak Island Borough and Sunset Development Company in
an effort to determine, among other things, whether Lot 39
of the project site is properly zoned for business and
whether the height of buildings on Tract A of the project
site is limited by a 1974 promise by Mr. Louis Tani pursuant
to rezoning of that parcel. Our understanding of the action
taken by the Planning and Zoning Commission in reference to
these two matters is that Chairman Dan Busch ruled that the
Planning and Zoning Commission would not delve into the
merits of our legal challenge and thereby deferred to the
courts for determination of the zoning status of the project
site.
The Planning and Zoning Commission did not make an
independent investigation of the request for zone clari-
fication. We feel that such an investigation, during a
public meeting of the commission, is required by Chapter
17.72 of the Kodiak Island Borough Code. This type of in-
vestigation by the Planning and Zoning Commission would be
necessary before that Commission could make a fully informed
report to the Borough Assembly on merits of the petition for
zone clarification.
To: Kodiak Island Borough Assembly
Re: Zone Clarifications
Date: October 31, 1978
Page: Two
Lorraine Dayton is moving as quickly as possible
to resolve these legal questions in the Superior Court. We
ask that you postpone your consideration of this matter
until the Superior Court has had an opportunity to rule on
the zoning status of the project site.
Thank you for your attention to our request.
Sincerely,
a-4,J
)41
Robert I. Shoaf
Law Clerk
RIS /kpo
ICE OF AP
1
'Lot area, _ side.'yard : and parking _space
`variances granted to 'Sunset ,Development
Company for the Kodiak Elderly.Houeiug
Project on October.19, 197.6.,...by the.
. _ Kodiak Island .Borough.
Dear Council Members:
Pursuant to Chapter ,17.10 of ;the .. ordinances of the
city of Kodiak,. Lorraine ;Dayton, -- by , and through .her . attorneYs,
- .DICKSON, EVANS, :ESCH z FAPAS,, appeals ::.the _action;. of the
Zoning,. C: w oa mtiaba►s:i... o n ,,of the
October :14, 1978 .Kodiak 2sland Borough
: .
Appellant, Lorraine Dayton' a `:address : is4 P .0..
287, Kodiak, Alaska.„
.Before .addroeein
g the •Points :oil •:. apPeai..aLorr�.....:.,.,.: ;.,_J
:.Dayton requests that you stay hearing of _this °appeal : until =
the Superior Court of the .States of .Alaska :makes. a °: ;- decision.:;`
•
on Sunset. Development. Company's Motion '-,to .:Stay: ,P=ose
e:: Civil ". Case No `' 3At+i78 -�398s
•; , rwhich isi � relat ®d to ..:this
matter. Lorraine. :Dayton`_opposes Sunset.Development4Company's
Alotion' to Stay :an that';proceeding _because are :afore- mentioned.
clarification og . variances is ,contingent F:upon .the 'zoning of
Lot=39 ;of, ths`:; Elderly. Housing FProject:..site: and on `the' :.`status
=of the 19741,' height ;limitation _on Tract A of the .Elderly * Ax
Dousing Project ..sit• . `X f; :::as Lorraine :Dayton `:contends: in
=" thatr suit =, Lot`:39:.has` not been ::rezoned,: ,from ..R -3 to business, ,.
then "clarification "_ •= :of the. 'variances . by...the ; Borough :, and u z
'subsequently :;by :;the . City: of :.Kodiak .will .:have ' -no effect:
?These variances have " bee* clarified. by :the Planning and Zon-
.ng Commission . on ,,the .;:assumption :.that: „Lot:.:39:wis ° in .fact:, f ,
zoned B.. Lorrain0"-.Dayton .is presently asking _the,,Court to ,
'consider the" issue of whether - or not • 3►ot • in fact •
properly zoned F c .� - !f t �� L r t A
sus tL �.',� 'ck
`Another reason :to postpone the.- fearing
appeal., is that 'if .the'. Court finds that Mr.: :Tani :promise :in
1974. to limit building heights on „bract A _.to :one : - story. :., above
• -Reaanoff Drive is still.;a,n effect, .that :height; :::limitation
- will substantially ;effect...the use `of_,:the :.Xodiale.Elderly
Housing -: Pro ject...";Sunset:: Development
Company :has :'not asked
~_.Kodiak- .,Island Borough or ..the :City :.of .:Kodiak : to • waive the
`s height -,imitation.::; This .action ,should :be .postponed
judicial 'resolution =of: the zoning and . height limitation:
;issues. °Lorraine :Dayton's :opposition to..Sunset .Development
'_ Company' s .Motion to Stay :Proceedings - is attached : as Exhibit
a a
:: ::, yi If the''.City Council :decides `to .proceed at this ; r
<<time with 'Lorraine: Dayton's :'appeal, :please_ :,inform us; of what
A. s she exact: - nature:': and,. effect of :,thee: clarification
variances granted too Sunset Development” ::Company. = :Also,.
Please, inform - us' of what..is . -the ::jurisdictional • authority for t
clarification ',actions= so. ::that we may ::make .concise =-and well-
:reasoned- .statements Of ;points on .- appeal.
a reason for this : appeal 'can be . divided into
procedural =jurisdictiona].questions. and :'into, substantive
points' of law.. This ';Notice . of .Appeal :twill state ;briefly : the
points _ of :_appeal. :Lorraine.,Dayton,: wi11submiit, :supplemental'
briefs to the City Council ;fifteen .days -after -..the :Clerk has
:given her :Notice of Completion of :_.the .Record ;of Appeal. , ySee
City, of Xodiakq Ordinance..No.7 :1,17.10.040. ' , . f
L.
•
- - -
os City Council of .rodi
Notice: of
October_ 26, 197L. ;!::
Page: J firlht p e
•
;=' • --„-
•
.; • •• „:.,
, — Tos • City Council of !Coal.
• --' , Notice of Appeal.
.-:-October :26, 3.97784
-
" -
•
•-..
•
.'„Pages. • Pour
•
,- „,,-- • -.0, ,-..,....,..,
:,.- .,,•:t:
sinset s:= Devc1opmentCompany withheld
;----i-v.,- --,,,,-
rMation::-pertinintto-Jta4application'Iorthak
lanCessfrOM-„the4mbliO4riOrAo:OctOber4104M4,
.,
. .,.. •-, _• • „ - • , - -•
7841....,:iiivvieilatioa:::of , thss.:'ispirit of the ---,public
eziring;-and the f'requirements ' i:OU: the' 7-,4t64iatilt$1.,
,,,,,;,,,,j,-..z.-.- , • -,,,... -.4-e:4454gtmji4,t,, --
rou kt.r..0 ..... ' '----,,u• • ,"- 4,-At-,..
- - • -
,._,.,‘, • ; ,,s1:--06:,... -,---..--0-1?
.Notice --,to the public ...of the 'ached-
. .
public :::hearing,,Was . confusing j in . that At .did,
.::-'state • precisely *hat :'.was 7. to .be .considered by
:4.-splanning:. and ::Zoning '''Commission; .,therefOre ;the -..-:,
rsc,tice was inadequate „.-.-•,,,,..i=,_„. .,......„1.--..,..-;:,q,„•::::.,,•:-.-...,,,,,,:e.- -
P-i----,-r:-,-:----.-;,-55,:,v
..„ ,-?•-•
•I'lr6=':-4'Az1444---..,eki.i.t-„,
'4 The -'--'Plann g.;.''',fan .',-:--: oning,:colidsaionl'Ao
ei"::::.ji*ifidi.ctiowfiii.;-Claitify-..preliiout .action,;A
.._ . • , • • ,
...„..--
which have :;never.".;took.:Placia:i:ZVeither;-..tha-'-lcodiakR-';;'
I sieuid-;-:,Boraugh nor the - :'Citir:*..if „'./Codiaji:;caii•-:gran
...varianCes -bir..siMplioatiOni,::.,therefore,.:no :eide_..cyar
-5.lot area or parking l!epade;;:rariances-,.' ha7ii•.: a,:-..---
;,_. • 7:`':1-*':1,
previously „granted 'to;SUnset,."De*eloPMent-:'•COM ' ' ' - -
• for the Elderly -Bons' ing"PrOjeCt;5aBedenisi--.-1-thene •'-:,._:-:.
variances I were not .,previously granted, the 'Planning ....
and Zoning :-Commission had nothing to ;•clarify ,-•-•-, :.-The ••-_-,-,:--;.1,..
Planning and - Zoning Commission '..s attempt to •clarify - :--:, -
• , • ..,., ,.,,
..-:.-Previous, ..nonresistent,.-2..Variances was .without ',::••:',:••-:-:-::,,-.-:,
effect. .-',.-:-:i.,'',.-2,:',;.-;• ..',,7-$!'!;-4'-'•:::,-,,:•,:i--:::.•4:1;,:••:;_-,_, ,,-f,: -•: ----..'::::-:',.I';''''' . --'.=!1-':•=2:-.: i.'!..'''';'-'' .1'!.,-..::-•
- - - --5...*;',...f-_';:;!:':`,•:;:-.;t:;;-•:'...:1,q-,•_ 4-
SUBSTANTIVE . POINTS 'Olis.„APi'EAL. .•••:.
3 i ...
:ii::::,_4.i.,.,,-,.:=A::;,:•:,::-..:,;..::::y.;.,•--•.,•,,,.,:,„ ' -; :-. -„,., 1,.-., -:-, • .:-•.• :-.:..: -:
e . petitioners •:.for,"clarification'ssf :Variances" •,:;;,.-• ' ''''. --:-;:-''..:4
failed iii •Iiiiiit.;-,the$X : burden of proof which •.:11,: set:•:Out- J.n
•
•'-517. 66 090 -.et •-mi.4for . the •.ROdi-alc.,41sland ..Borough, -•
act- of •tEsTy-variances permitting a biiilding which exceeds
the lot area requirements by _fifteen dwelling units ,=-2exceeda •->
the side yard requirements by approximately 73 feet,..-. and = •
lacks 18 of the required ,parking *Vanes • ,::substantially
injuree -Lorraine ,Daytn,n! a , use and _enjoyment of her -home :on
Erskine Avenue and 'substantially ...reduces . her 'property,.valua.n-
-;
There are no physical or..rgeographic hardships which necessitate
cclarification or granting of ..these :variances .-,•,,The- variances ".
••.11.s clarified are contrary to the objectives of •,comprehensive
p1an in that they permit a building which is not coinpatible
With ".`surrounding residental , areas:.;:: :If the . strict .applicatiorG.,
and the :provisions:. of the __Kodiak .Island 'Borough ..,Code Land -
Use Regulations :-.do result in impractical ,.difficulties' or
hardships to Sunset Development •Company, ':_thosa ..hardshipaz,-
- . .
• „ •
. . .
Tos City 'Council of Kodiak
its s Notice of Appeal... �v _ ' -
Dates October -26, .197$FM . .
Pages ::Five
- difficulties arise -.only.-because .of'. :.the ;projeat .'selected and
r. built by -:Sunset Development Company': does ' not .comply :with th
land use '. requirements . , of ,,the Borough.::: -: ;,There : are . no _ excep-
tional physical .. circumstances or - physical :;:conditions "which
:preclude all types of commercial ;,development „of this - proper
d thereby: necessitate, issuance :or :;clarification ".of ,_these;e
variances; ms`µ=
Lor_ raine Dayton -feels that the standard .of review
og _the Aboard of Adjustment as :established in .City, of Kodiak
Ordinance' No. 19.10.090. will .necessitate that the decision
of the Planning and Zoning Commission be reversed,
variances clarified permit: so, great a . deviation , from the.;
requirements of the Kodiak Island .Borough Code . :that they are
a use variance prohibited . by the .city .ordinance
the Planning and •.Zoning;.Commission was :substantially -influence
. by reasons of pecuniary.: hardship -:and ':inconvenience. of :Sunset:-
Development Company caused by the : actions of that comipany.
Reading City of Kodiak ordinance '617.10.020(D).,
is not clear Lorraine:Dayton how.' the costs for preparing
_
the record of appeal will be distributed. - :Please inform ..ue
at your earliest: convenience howthese,costs.will . be met.-
hank : you for your attention to these points of
aap pea 1: _: . you .would like .further discussion from us on the
question- of whether. -or : not this appeal _should be stayed .
,pending legal action'.in..the.Superior:Court, we will be happy :
to brief that ";issue _ in a ::separate memorandum before you make
-your decision on :that point. ,: G
incerely,,
-. ��i...
George . Dickson,
Attorney for Lorraine .Da
:CADf kpo
cc: - Richard Garn et
Mahoney .
KODIAK ISLAND BOROUGH
M E M O R A N D U M
DATE: 26 October 78
TO: Honorable
FROM: Stu Dens
SUBJ: Information eport
Borough Assembly
RE: ,Rezoning of Lot 30, Block 2, Erskine Subdivision,
USS 562 & Tract "A" USS 2537 B. (Sunset Development)
- During the regular meeting of the Planning and Zoning
Commission held on October 18 & 19, 1978, this Commission considered
a request from Sunset Development Company to reaffirm a previous
zoning of Tract "A" USS 2537B, Lot 30, Block 2, Erskine Subdivision,
USS 562. The petitioners feel there may be a cloud on the rezoning
of both parcels.
The Planning and Zoning Commission, by motion, support-
ed a ruling of the chair, that the subject properties were rezoned :=
from Planning and Zoning, to Business by ordinance in'1974 and 1976,
respectively.
This application is being forwarded to you for your
review with the appropriate recommendation from the Planning and Zon-
ing Commission as required by Section 17.72.020 of the Kodiak Island
Borough Code of Ordinances.
KODIAK ISLAND BOROUGH
October 26, 1978
Mr. Walter Ebell submitted the architect drawings and •elevation plans
submitted to the P & Z Commission on October 18, 1978 as part of the record at
the regular meeting of the Commission..
This day received by me, Ra9h° Clutter.
COLE, HARTIG, RHODES, NORMAN & MAHONEY
A PROFESSIONAL CORPORATION'
ATTORNEYS AT LAW
SUITE 201
717 K STREET
ANCHORAGE, ALASKA 99501
(907) 274-3576
HOYT M. COLE
ROBERT L. HARTIG
JAMES D. RHODES
JOHN K. NORMAN
ROBERT J. MAHONEY
BERNARD J. DOUGHERTY
MICHAEL W. SHARON
- - -
G. RODNEY KLEEDEHN
J. MICHAEL ROBBINS
ROGER H. BEATY
STEPHEN D. ROUTH.
WEV W. SHEA
EDGAR R. LOCKE
ANDREW M. HEMENWAY
OF COUNSEL:
G. KENT EDWARDS
Mr. Stuart Denslow
Kodiak Island Borough
Kodiak, Alaska 99615
October 25, 1978
KODIAK OFFICE:
202 CENTER AVE.. BOX 503
KODIAK, ALASKA 99615
(907) 486-3143
(907) 486-3144
MICHAEL W. SHARON
isiand borough
KODIAK, ALAA
RECEIVLD
REPLY TO:
OCT 2 5 1978
Pth
10[19■1104131g2g11213540a6 .
Kodiak
A
Kodiak Elderly Housing Project
Petition for Ratification and Clarification
of Business Zone
Our File No. 1993
Dear Mr. Denslow:
As you know, on October 18, 1978, the Planning and Zoning Commission
acted upon Sunset Development Company's petition regarding the
above-captioned project. Even though the Commission decided that
the property is zoned business, we would like to request that the
zoning question be placed on the Assembly's agenda for its-next
regular meeting.
I have enclosed a proposed Ordinance regarding the zoning of the
described property. It is our position that the Assembly may
enact a new ordinance clarifying and ratifying the zoning of the
property. The court would then be required to refer to the new
ordinance regarding any questions about the zoning of the property.
We have moved to stay the civil litigation pending the outcome of
these administrative procedures. However, in an_effort to
resolve this matter as quickly as possible, we would request that
a special meeting of the Assembly be held for purposes of the
second reading and public hearing regarding the ordinance.
I have also enclosed a copy of Sunset's petition to the Planning .
& Zoning Commission. .Perhaps this-dould_be included in each
assemblyperson's packet to provide them with some background
information regarding the project and the pending litigation.
Your cooperation will be greatly-appreciated. If we may be of
Mr. Denslow
October 25, 1978
Page Two
any assistance to you or if you have any questions regarding this
matter, please do not hesitate to give either Mr. Bernard Dougherty
or myself a call.
Very truly yours,
COLE, HARTIG, RHODES
NORMAN & MAHONEY A
''
—P
By:
CWE:pjd
enclosures (2)
cc: Sunset Development Company
Rick Garnett
Harry Milligan
George Dickson
ft '\( (bI E Q
C. Walter Ebell
Legal Intern
IN THE SUPERIOR COURT FOR .THE STATE' OF ALASKA'
THIRD JUDICIAL. DISTRICT AT .ANCHORAGE
- ILORRAINE ` DAYTO
Vs..
KODIAK.ISLAND BOROUGH,
et al.,
Defendant.,
Case No. 3AN -78 -3988 Civ
TO:
REQUEST FOR ADMISSION
Fred & Ruth Brechan, Louis . &.,.Francis,
Iani, and Neal ...& Company, Inc., .d /b /a ; .;;.,
Sunset Development Co., a.Limited,Partnership
c/o Bob Mahoney, 717 "K" Street,
Anchorage, Alaska 99501:.,
COMES NOW, Lorraine Dayton, by and through her attor-
neys, DICKSON, EVANS, ESCE. &.PAPAS, pursuant to Civil Rule 36,
limited
partnership, within 30 days . after ..service ,of this request, admit,
for the purposes, of; this. action. only, the following:_.
1. That_Sunset Development.Company, its principals,
and requests. that defendant,Sunset.Development. Company, a
or
its predecessors in interest.did not, in. 1976,, request a.lot'area
variance from the Borough of KodiakN,.Island. -...._
2. That in June, 1978, the. ,55 -unit Elderly Housing
Project being constructed in Kodiak. by Sunset Development Company
exceeded the lot area requirements of the Kodiak Island Borough
Land Use Code -by fifteen. dwelling units.
3. That to Sunset Development Company's knowledge,
Borough of Kodiak Island _never advertised a public meeting in...
1976 to grant a lot area _variance to the Elderly Housing Project.
4. That to Sunset`Development_.Company's kowledge, the
Borough of Kodiak Island,never held a public meeting `in _1976 to
grant a lot area variance to the . Elderly.. Housing
•
That ,to the best of its knowledge,: Kodiak Island
.Borough never explicitly,granted..Sunset Development Company. a lot
derly. , Bousing, Project..:.
' pursuant. to' the requirements of ..Kodiak.rsland Borough-.Code,
§17.66:090 et sue.
6. That Sunset Development Company, its principals, or
its predecessors in interest, .did_not request a parking space
variance from, the Kodiak ,Island .Borough .prior to its request for
that variance in August,ti1978,
7. That the .55, -unit Elderly Housing Project being
constructed in Kodiak by sunset.Deve3.opment .Company. fell short of
the parking space requirements of th',Xodiak Borough Land Use
Code by twenty nine spaces as constructed in June, 1978.
8. That to Sunset Development Company's knowledge, the
Borough of Kodiak never held a public meeting in 1976 to grant a
;parking space variance to the Elderly Housing Project.
9. That'to the best of its knowledge, Kodiak Island
Borough :'never explicitly , granted -_Sunset; Development `Company a.
parking space variance in 1976,for.the Kodiak Elderly Housing
Project pursuant to the. requirements.:of;.Kodiak Island,i3orough
Code, 517.66.090 et.seq..;,-
That as part of the .rezoning . in 1974 of what is_
now Tract A of the Kodiak ..Elderly- ,Housing Project site, Louis
Tani promised to limit the_'height of future.buildings.on that
Tract to one story above.Rezanoff.Drive or to submit'any future
proposals to the Planning and Zoning Commission of the Kodiak
Island Borough for consideration of the effect of that proposed
use on the height limitation. of'one.story- above Rezanoff Drive.
11. That the. Kodiak Elderly Housing Project in which
Mr. Tani participates as.a general partner exceeds the height of
•
, „ • - - =
• "
' „ •
That _Sunset Development .Company withdrew its
request o height„"exception",,in 1976 before the Planning and -
.:': •.',,..2:''..f.,,., ..-,..'1"-:•:.1.---:::,'-':'''';',-;'-?:c.-,:t,'...-'!-V?•,'.--,.;•f:::.&-,,it:',ikl'.;;;',-,.-:---;•:,:.:.,.,:;-;`',::,:"::.,,:'.',.'-,`I....i'.7.'_'6,T:.;-!-,..,';,-,..-..„:.,...- -
zoning :Commission ever addressed 4 of height "ex-
.,.. -
e -quest-on
ceptions."
13. That as o October 24, 1978, Sunset Development
Company has never requested a public hearing on the effect of the
•
Kodiak' Elderly _Housing Project on the 1974 height limitation
agreed to on Tract .A of the project ,site.
14. That Sunset Development Company, its principals or
its predecessors in interest, knew ,in ,June, 1976 that the Kodiak
.Pk". Island Borough had a'land use regulation .code;,_-_
16. That Sunset Development Company or .ite'principals
• , • - . ".
knew in 1976 that Kodiak ,island .Borongh .Land Use Code had a lot
area/dwelling unit density ,requirement for all new construction
in the Kodiak Island Borough..., _ .
16._ That Sunset Development _Company or its principals
knew that the Kodiak Island Borough ,Land.,Use.'Code had parking:.- .•
,'..• 1. r. •
space requirements applicable to aliinew.conetinctionin'the
Kodiak island.Borougli..-,.,----. - _ _
-t .•-.. •
DATED this.'26th.day of October, 1978, at Anchorage,
Alaska.
•
' .
•
. • •
•
DICKSON, EVANS, ESCH & PAPAS
Attorneys for Plaintiff.,:
By:
George A. Dickson
''..• This certifies that a true and correct
copy of the foregoing was mailed
Bob Mahoney;and Richard Garnett of 909
W. 9th Street, Anchorage,, _AK.. 99501 - • - • ••• •
this 26th day of October,. 1978.
DICKSON, EVANS ESCH & PAPAS
13
•
Geo
=
_E, HARTIG.
)ES, NORMAN
MAHONEY
DIAK PLAZA,
BOX 503
'IAK, ALASKA
99615
ELEPHONE
.07) 486-3143
17) 486-3144
4.6a e elf
)97
IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
. THIRD JUDICIAL DISTRICT.
AT ANCHORAGE
LORRAINE DAYTON, )
)
Plaintiff
)
vs. )•
)
KODIAK ISLAND BOROUGH; CITY )
OF KODIAK; LOUIS IANI, FRED )
BRECHAN, RUTH S. BRECHAN, )
FRANCES S. IANI and NEAL & CO.)
INC., d/b/a SUNSET DEVELOPMENT),
COMPANY, )
)
Defendants. )
)
Case NO. 3 AN 78-3988 Civ.
RESPONSE TO PLAINTIFF'S
REQUESTS FOR ADMISSION
TO: LORRAINE DAYTON,
c/O George Dickson, Esq.
880 H Street
Anchorage, Alaska 99501
DEC 5)918
f•`,. • ,••
Defendants, FRED BRECHAN, RUTH BRECHAN, LOU IANI,
FRANCES IANI and NEAL AND COMPANY, INC., d/b/a SUNSET DEVELOPMENT
COMPANY, respond to Plaintiff's Requests For Admission as follows:
Request For Admission No. 1. Denied. SUNSET DEVELOP-
MENT COMPANY presented the plans for the Kodiak Elderly Housing
Development to the Kodiak Island.Borough and requested that steps
be taken to bring the project within full compliance with the
Kodiak Island Borough Land Use Code.
Request For Admission No. 2: Denied. The Kodiak
Island Borough Planning and Zoning Commission, the Kodiak Island
Borough and the City of Kodiak had review the plans. for the
Kodiak Elderly Housing Project and approved the construction of
the project as planned.
Request For Admission No. 3. Admitted.
Request For Admission No. 4. Denied. The Kodiak
Island Borough Assembly and Kodiak Island Borough Planning and
Zoning Commission held public meetings in 1976 where the plans
for the Kodiak Elderly. Housing Project were on display and
available for inspection by the public.
'Request For Admission No. 5. Admitted.
Request For Admission No. 6. Denied. Please see
Response to Request For Admission No. 1.
Request For Admission No, 7. Admitted. The plans
for the Kodiak Elderly Housing Project provided for the
construction of 26 parking spaces. Adequate land is available
for the construction of additional parking spaces as required
by the Kodiak Island Borough Planning and Zoning Commission.
Request For Admission No. 8. Denied. Please see
Response to Request For Admission No. 4.
Request For Admission No, 9. Admitted.
Request For Admission No. 10. Denied. Mr. Iani's
discussion in-1974 was limited to a project under consideration
at that time, which project was not constructed and was
entirely abandoned.
Request For Admission No. 11. Admitted. --
Request For Admission No. 12. Admitted. SUNSET
DEVELOPMENT COMPANY was advised by Kodiak Island Borough
Planning and Zoning officials that a-height "exception" was
not necessary for the construction of the project as planned.
Request For Admission No Denied. SUNSET
DEVELOPMENT COMPANY requested that the zoning status of
Tract A, US Surveys 562 and 2537-B, be clarified as busing.aa_
without heightgiction.
Request For Admission No. 14. Admitted.
Request For Admission No. 15. Denied.
Request For Admission No. 16. Admitted.
DATED this 1st day of December, 1978, at Kodiak,
Alaska.
COLE, HARTIG,
'HODES, NORMAN
& MAHONEY
KODIAK PLAZA.
BOX 503
KODIAK. ALASKA
99615
TELEPHONE
19071 496-3143
(907) 48673144
• COLE, HARTIG, RHODES,
NORMAN & MAHONEY
Attorneys for Defendant
By: Q 6J!
C. Walter Ebel
BEFORE THE COUNCIL OF THE CITY OF KODIAK
SITTING AS ABOARD OF'ADJUSTMENT
WRITTEN STATEMENT OF SUNSET DEVELOPMENT
COMPANY IN OPPOSITION TO THE APPEAL BY
LORRAINE DAYTON OF VARIANCES GRANTED TO
THE KODIAK ELDERLY HOUSING PROJECT.
Submitted by:_
C. WALTER EBELL, Esq.
COLE, HARTIG, RHODES,
NORMAN & MAHONEY
202 Center Avenue, Box 503
Kodiak, AK 99615
COLE, HARTIG,
RHODES, NORMAN
& MAHONEY
SUITE 201
717 K STREET
ANCHORAGE, ALASKA
99501
TELEPHONE
(907( 274.3576
COLE, HARTIG,
RHODES, NORMAN
& MAHONEY
SUITE 201
717 K STREET
ANCHORAGE, ALASKA
99501
TELEPHONE
(907) 274-3576
INTRODUCTION
On October 19, 1978, following a lengthy presen-
tation, the Kodiak Island Borough Planning and Zoning Commission
granted three requested variances to Sunset Development
Company for the project known as the Kodiak Elderly Housing
Project. The specific variances granted, referenced by
appropriate resolution, are as follows:
V -78 -056 - Variance from Section 17.57.010 reducing
the off - street parking requirements from •
55 spaces to 37 spaces granted on the condition
that the Commission may, on recommendation
from the Planning Official, require all or
part of the normally required parking spaces
if necessary in the future.
(Ex . 21)
V -78 -057 - Variance from Sections 17.18.040 and 17.21.050
permitting the building to encroach approxi-
mately 75 feet into a required side yard.
(Ex.22)
V -78 -058 - Variance from Section 17.21.040 permitting
construction of building containing 55 dwelling
units on a lot with an area sufficient for
40.7 dwelling units granted on the condition
that a lot containing 1,631 sq. ft., more or
less, be added to project within 30 days after
the grant of the variance.
(Ex.23)
Lorraine Dayton appeared at the hearing before the
Commission and presented her opposition to the project
personally and through her attorneys. The only other opposi-
tion to the requested variances was presented by Mildred
Mackey and William Vanorden. Mrs. Mackey object to her loss
COLE, HARTIG,
RHODES, NORMAN
& MAHONEY
SUITE 201
717 K STREET
ANCHORAGE, ALASKA
99501
TELEPHONE
)907) 274-3576
of view and also complained she had not been provided with
notice of the hearing. [TR 52 -53] Vanorden also claimed
that he had not been provided with notice of the hearing and
alleged that he would lose $10,000 to $15,000 on the sale of
his house because of his loss of view. (TR 63 -65)
SCOPE OF REVIEW
Appellant claims on appeal that the Planning and
Zoning Commission acted arbitrarily and that the variances
granted were not based on sufficient findings of relevant
facts supported by substantial evidence, and should there-
fore be denied. [BR 11 -12] Sunset respectfully submits
that this standard of review is not the standard to be
applied under Section 17.10.080 and .090.
The question to be determined by the Board of
Adjustment is whether the variances have been or may be
granted based on facts that are supported in the record by
substantial evidence. The Board of Adjustment is required
by Section 17.10.090 to make findings of fact and conclu-
sions of law, and is not limited to the findings of the
Commission. Thus, if the Board determines that the action
is correct based on facts supported by substantial evidence
in the record, the Board may utilize those facts in reaching
its decision even though the Commission did not specifically
make such findings.
If the position advocated by Dayton were to be
adopted, the Board would be restricted to the findings of
the Commission and could only affirm or deny a variance
granted by the Commission.' The Board would never be able to
grant a variance because the findings necessary to support
that variance would never have been made by the Commission.
Clearly that is not the intent of Section 17.10.080 nor is
Dayton's position based on the language of that section.
-2-
COLE, HARTIG,
RHODES, NORMAN
& MAHONEY
SUITE 201
717 K STREET
ANCHORAGE, ALASKA
99501
TELEPHONE
(9071 274-3576
CRITERIA FOR VARIANCES
Section 17.66.090B establishes four conditions
that must be found to exist before a variance may be granted.
Those conditions are:
1. That there are exceptional physical
circumstances or conditions applicable to the
property or to its intended use or development
which do not apply generally to the other
properties in the same land use district;
2. That the strict application of the
provisions of this title would result in prac-
tical difficulties or unnecessary hardship;
3. That the granting of a variance will
not result in material damage or prejudice
to other properties in the vicinity nor be
detrimental to the public health, safety or
welfare;
4. That the granting of the variance will
not be contrary to the objectives of the com-
prehensive plan.
It is important to note, when applying these
criteria, that the first condition is not limited to physi-
cal circumstances or conditions of the property as argued by
Appellant. Rather, it also encompasses exceptional physical
circumstances and conditions applicable to the intended use
or development which do not apply generaily_to other proper-
ties in the same land use district.
LOT AREA VARIANCE
The concept and need for the Kodiak Elderly Housing
Project was first developed by the Senior Citizens of
Kodiak, Inc., who approached the owners of Sunset Develop-
ment to determine their interest in constructing the facility.
[TR 35 -40] That_contact was made only after the group had
-3-
COLE, HARTIG,
RHODES, NORMAN
& MAHONEY
SUITE 201
717 K STREET
ANCHORAGE, ALASKA
99501
TELEPHONE
(907' 274-3576
determined that such housing was needed in the downtown area
for the elderly and for the physically and mentally handi-
capped in Kodiak and that no other suitable property was
available in the downtown area.
While the testimony presented by those associated
with the project expressed the importance of the downtown
location, the presentation by Mr. Milligan most clearly
demonstrated the unique nature of the property based on its
location, availability and intended use. [TR 98 -99] He .
expressed the opinion that the "site uniquely lends itself
to all of the necessary requirements that you would parti-
cularly find associated and necessary for an elderly development
as opposed to a development for more conventional /residential
occupants ". [TR 97] Specifically considered by Mr. Milligan
were the proximity of the project to shopping, community,
medical, dental and related professional services; availability
of emergency services and the particular needs of the elderly
and handicapped for those services.
.The original schematic layout of the project
called for fewer dwelling units than are currently contained
in the project. [TR 33] However, it was determined by
Washington Mortgage Company that the project would not be
economically feasible with fewer than 55 units because of
the design features required by HUD which substantially
increase the cost of the project. [TR 16 -17, 23, 29, 32]
Those special design features, which are reflected in part
in Exhibit 5, include an elevator, handrails, special lighting
fixtures and other safety features and amenities that are
unique to _this type of project. In any event, however, it
is clear that financing would not have been available for
the needed community project if it contained fewer than 55
units.
-4-
COLE, HARTIG,
RHODES, NORMAN
Sc MAHONEY
SUITE 201
717 K STREET
ANCHORAGE, ALASKA
99501
TELEPHONE
(907) 274-3575
Lorraine Dayton has alleged that the purpose of
minimum lot area requirements appear to be (1) regulation of
residential densities and (2) regulation of the size of
buildings. Based on that approach she alleges that she has
been harmed by the height and bulk of the building which she
claims has blocked her view, affected her property value and
invaded her privacy. It is clear, however, that lot area
requirements are a poor regulation of residential densities
and have absolutely nothing to do with regulating the size
of buildings.
The Elderly Housing Project is located in a Business
Zone. Building height in that zone is regulated by Section
17.21.030 which provides that
The maximum building heigh shall be three
stories or fifty feet; provided, however,
that a building or structure hereafter
erected, added to or otherwise constructed
may be increased in height, provided the
gross cubical content of such building or
structure does not exceedthe sum total of
the area of the lot upon which it is to be
erected multiplied by fifty.
The area of the lot in question, before the variance and
addition of property, was 40,717 sq. ft. [TR 22] and the
maximum gross cubical content of the building would be
2,035,850 sq. ft. Since Appellant's objections relate to
Building B on Exhibit 3, which appears to have dimensions of
about 60'x143', we can calculate the estimated permissible
height of that building, if it were constructed alone on the
property, to be about 237 feet. That permissible height is
substantially in excess of the height of the Kodiak Elderly
Housing Project. It is obvious therefore, that the lot area
requirement is not designed or intended to regulate the size
of buildings.
Lot area requirements do, regulate residential
density in a less than perfect manner. Since larger units
rent for more than smaller ones and no additional lot area
-5-
COLE, HART1G,
RHODES, NORMAN
& MAHONEY
SUITE 201
717 K STREET
ANCHORAGE, ALASKA
99501
TELEPHONE
(907) 274-3576
is required, lot area regulations tend to put a premium on
larger dwelling units. 2 N. Williams, American Planning Law,
§145 p.117 (1972). Larger units generally are occupied by
more family members and a higher density results.
The project in question contains 55 single bedroom
units. Those units are relatively small in size and are
intended to be occupied by couples or individuals. [TR 41]
The ineffectiveness of lot area restrictions as a
means of regulating residential density might best be demon-
strated by calculations relating to a structure on the same
property containing two-bedroom units. Each dwelling unit
in the existing structure is 22'x22' or 484 sq. ft., with
one bedroom 10.3'x15.3 or 157.59 sq. ft. The 55 units
comprise about 26,620 sq. ft. of unit space. If we add an
additional bedroom of the same size, the units would be
641.6 sq. ft. (484 + 157.6) and we could put slightly in
excess of 41 dwelling units in the same area as that presently
occupied (26,620 641.6 = 41.49).
If we assume that the average occupancy of the 55
units is 1.5 persons (23 units occupied by one person and 27
units occupied, by 2 persons), the residential density is
82.5 persons. Similarly, 40 permissible two-bedroom units
with an average occupancy of 2.05 would produce the same
residential density.
This type of approach, although somewhat more
sophisticated, was utilized by HUD when they reviewed the
project- [TR 25-26, 30-31] Based on the calculation of a
land use intensity rating which considered the type of
units' proposed use and other factors, HUD determined the
project to be well within the established guidelines. [TR 25]
Similarily, the Borough Planning Staff recognized that the
residential density would be less than that generated by
more conventional housing. [TR 99]
-6--
Reviewing the evidence in times of the conditions
established by Section 17.66.090, it is apparent that there
are special circumstances or conditions applicable to the
property or its intended use or development which do not
apply generally to other properties in the same use district.
The availability and accessability of shopping, community,
medical, dental and other professional and emergency services
from the site, when coupled with particular needs of the
elderly and handicapped, for whom the project is intended
demonstrate conditions not generally applicable.
The special design features required in this
project which increase the cost and make it economically
unfeasible to construct fewer than 55 units is a special
condition not generally applicable, as is the nature of the
project itself.
The fact that the project consists entirely of
one- bedroom units which will generate a lower residential
density than conventional housing, is also a special con-
dition that does not apply generally throughout the district.
Strict application of the provisions of the Zoning
Code would result in practical difficulties or unnecessary
hardship, whether the circumstances are viewed from a pre -
construction or post- construction standpoint. With less
than 55 units the project-is not economically feasible. The
community would therefore be deprived of the Kodiak Elderly
Housing Project as constructed.
Granting of the variance does not result in
material damage or prejudice to other properties and is not
detrimental to the public health, safety or welfare. Lot
area requirements are not directly related to building size
and in this case strict enforcement would not have required
a lower building or one that would in any way impair Appellant's
COLE, HARTIG,
RHODES, NORMAN
& MAHONEY
SUITE 201
717 K STREET
ANCHORAGE. ALASKA
99501
TELEPHONE
0079 274-3576
view less than the building as constructed. As pointed out
in the staff recommendation and testimony, no easement for
view exists in Kodiak, and none is protected by the regulation
from which a variance has been granted.
Appellant's claim of invasion of privacy is totally
unsupported in the record and can therefore be disregarded.
Similarily, little support exists for claims of diminution
of value other than the conclusions of Lorraine Dayton and
Mr. Vanorden. Since the view could have been similarly
obstructed without a variance, diminution in property value
attributable to view obstruction would not be the result of
the variance granted.
Finally, the Borough Planner testified that the
lot area variance would not be contrary to the objectives of
the Comprehensive Plan and no contrary testimony was pre-
sented. [TR 100] Therefore, the lot area variance should be
granted and the action of the Planning and Zoning Commission
affirmed.
-8--
COLE, HARTIG,
RHODES, NORMAN
& MAHONEY
SLitTE 201
717 K STREET
ANCHORAGE, ALASKA
99501
TELEPHONE
(907) 274.3576
SIDE YARD VARIANCE
Section 17.21.050 of the Kodiak Island Borough
Code of Ordinances provides as follows:
17.21.050 Yards. A. Every building or portion
thereof which is designed, intended or used for
any purpose permitted in an R district shall
provide yards as required in the R district,
provided that when the ground floor of any such
building is used for any commercial purpose, no
side yard shall be required except there shall
be a side yard along the side of every lot which
is not bounded by an alley and which is bordering
on property in any R district.
B. Yards shall not be required otherwise, except
that no building shall be erected nor shall any
use of land be conducted so that the same will
be closer than thirty feet to the centerline
of any street adjoining the lot.
It should be noted that if the lot is used for any
purpose other than a residential purpose, there are no side
yard requirements and the only restriction is that no building
may be constructed closer than thirty feet to the center
line of any street adjoining the lot. Similarly, if the
ground floor of the building is utilized for any commercial
purpose a side yard is not required except when the lot
borders on property in an R district and it is not bounded
by an alley. Those limitations are important because they
reflect the purposes for the side yard requirements and
further permit an appropriate evaluation of the material
damage or prejudice claimed by Lorraine Dayton.
The fact that no side yard requirements are imposed
for a commercial building abutting another business zoned
lot demonstrates that the side yard setback requirement is
not a requirement designed or intended for the benefit of
other adjacent property owners. Rather, it is a requirement
that may be intended to control the density of the population,
to insure adequate daylighting of buildings and to provide
sufficient space for rest and relaxation of the occupants.
2 N. Williams, American Planning Law, S4203, p.164 (1972).
-9-
COLE, HARTIG,
RHODES, NORMAN
& MAHONEY
SUITE 201
717 K STREET
ANCHORAGE. ALASKA
99501
TELEPHONE
(9071 274-3576
A review of the side yard setback requirements
imposed in the residential district, and applicable for
residential uses in a business district further reflects
those objectives. Those requirements, contained in Section
17.18.040 B, read as follows:
B. Side Yard.
1. There shall be a side yard of
not less than ten percent of the width of the
lot but such side yard need not exceed twenty-
five feet. The minimum side yard on the street
side of a corner lot shall be ten feet.
2. The following additional require-
ments shall apply to two-family and multiple-
family dwellings:
a. In case the building is -so located
on the lot and the rear thereof abuts on the
side yard and the front abuts the other, the
side yard along the rear of the building shall
have a minimum width of twelve feet and the
side yard along the front of the building shall
have a minimum width of eighteen feet.
b. For multiple-family dwellings, the
minimum side yards required shall be increased
one foot for each dwelling unit over four.
By requiring an increase in the side yard based on the number
of dwelling units in a multiple-family dwelling, the objectives
of providing daylighting and space for rest and relaxation, as
well as somewhat restricting the density of the population, is
demonstrated. In no case, is the side yard requirement related
in any way to a possible obstruction of the view of other
properties in the vicinity.
Exhibits 2 and 3 reflect the extremely irregular
shape of the project site and Exhibit 1 reflects the sloping
nature of that lot. Substantial testimony was presented
regarding the effect of the slope of the lot, and the con-
straints-on the location of the building caused by rock
formations and subsurface water. [TR 58-63] Mr. Iani, one
of the principals of Sunset Development Company expressed
the opinion that they would not have been permitted to blast
the rock in the area for the purpose of changing the con-
figuration of the building, because of the adverse affect on
the slope of the.road. [TR 70-71]
-10-
COLE, HARTIG,
RHODES, NORMAN
& MAHONEY
SUITE 201
717 K STREET
ANCHORAGE, ALASKA
99501
TELEPHONE
(907j 274-3576
The location of the building on the lot was further
restricted by regulations of HUD and the Uniform Building
Code. In response to questions regarding a possible change
of the design to lower the structure along Rezonoff and
elongate the building, Mr. McCool replied
. . . I understand what you're saying. With
the restriction for the fire compartmentalization
by HUD that limits you to the number of units and
to the length of the corridor as does the building
code. So that had you done as I, I said earlier
what would have had to happen in order to make
that possible, an another elevator tower would
have -had to been inserted . over at this end. And
of course, that automatically at the cost
of one elevator tower makes that a non - feasible
move.
[TR 21]
If it were possible to locate the buildings in
another manner upon the property, so, as to provide the full
setback as required, it would not produce a reduction in the
view that is obstructed, but would rather merely relocate
that obstruction. Conversely, the structures as located
permit the optimum utilization of the property to provide
open space and park area for its residence. The maximum
encroachment into the side yard area extends for only twelve
feet [TR 63] and the remaining portion of the building
adjacent to Lot 3 is set back substantially further from the
property line, although still not conforming with the set-
back requirements.
When evaluated in terms of the criteria established
by Section_ 17.66.090, it would appear that there is substantial
evidence -in the record supporting the grant of the variance
under appeal. Exceptional physical circumstances applicable
to the property exist as a result of the irregular shape and
slope of the lot as well as the adverse subsurface conditions.
These same conditions do not apply generally to other properties
in the business district, and Appellant's statement to the
contrary is an assumption that is not supported by facts
COLE, HARTIG,
RHODES, NORMAN
& MAHONEY
SUITE 201
717 K STREET
ANCHORAGE, ALASKA
99501
TELEPHONE
(907) 279-3576
found in the record or that may be judicially noticed by the
Commission or Board members.
The strict application of the side yard requirements
would result in practical difficulties or unnecessary hardship
in that the Developer would have extreme difficulty in
developing a building design that could.be erected on the
irregular, sloping lot with adverse subsurface conditions and
that would be in compliance with the requirements estab-
lished by HUD and the Uniform Building Code. Because of
the interaction of these requirements, a building suitable
for elderly housing likely could not be constructed or main-
tained. Any building that could be so designed and constructed
would appear to have far less utility and would require a
substantially higher investment.
With regard to the matter of unnecessary hardship,
it should be noted that the setback question was presented
to the Planning and Zoning Commission for the first time in
1976. At that time a letter was prepared by the Borough
Planning Staff, for typing and signature by the project
developers, requesting an "exception" to the side yard
requirements. The Planning and Zoning Commission approved
the requested "exception" permitting the encroachment into
the required side yard. While the procedure utilized may
have been incorrectly designated as a request for exception
rather than a request for a variance, nevertheless the
matter was - presented to the Planning and Zoning Commission
and Sunset Development Company has relied upon the specific
approval of that exception. Strict application of the side
yard requirements at the present time would result in a sub-
stantial financial loss to the Developer that was not self -
inflicted. Many cases have held that while a financial loss
may not be sufficient in itself to justify a variance, it is
an element to be-considered. Marino v. City of Baltimore,
-12-
COLE, HARTIG,
RHODES, NORMAN
& MAHONEY
SUITE 201
717 K STREET
ANCHORAGE, ALASKA
99501
TELEPHONE
(9071 274 -3576
215 Md. 206, 137 A.2d. 198 (1957); McMahon v. Board of Zoning
Appeals of New Haven, 140 Conn. 433, 10.1 A.2d 284 (1953).
The granting of the variance will not result in
material damage or prejudice to other properties in the vicinity.
As pointed out, the requirement of a setback does not relate to
preservation of the view of other property owners in the
vicinity. Since a building of substantially greater height
and with a similar total width or length, could have been .
constructed on the property in compliance with the established
setback requirements, there has been no showing that any
impairment of view will result from the granting of the
variance. The alleged dimunition of property value testified
to in the hearing was tied to the loss of view and it
would appear that a similar devaluation of property, if any
in fact occurs, would result from any development of the
business property in compliance with the zoning regulations
and would not be caused by the variance. The allegation
regarding invasion of privacy asserted by Lorraine Dayton on
behalf of the adjacent property owner is unsupported and it
is important to note that property owner did not appear or
in any way file an objection to the granting of the setback
requested.
The Planning Official testified that the setback
regulation does not serve a life - safety requirement and he
was of the opinion that the variance would not be detrimental
to the public health, safety or welfare. [TR 100 -101]
Finally, it was the opinion of the Planning Staff
the the granting of the variance requested would be consistent
-with the objectives of the Comprehensive Plan. It was pointed
out that the property in question is adjacent to the central
business district and the requirement of a 75 -foot minimum
setback appeared to be excessive in those circumstances.
[TR 100] By granting a variance of the setback requirement
-13-
COLE, HARTIG,
RHODES, NORMAN
& MAHONEY
SUITE 201
717 K STREET
ANCHORAGE, ALASKA
99501
TELEPHONE
(9071 274-3576
and permitting the placement of the building primarily on
one side of the property, the open space on the site was
consolidated creating a more useful area for the building
occupants. This was considered to be particular important
in view of the type of occupancy carried on in the building.-
-14-
COLE, HARTIG,
RHODES, NORMAN
& MAHONEY
SUITE 201
717 K STREET
ANCHORAGE, ALASKA
99501
TEILEPH 0 N E
(9071 274-3576
PARKING SPACE VARIANCE
The original variance request sought to reduce the
parking spaces required by Section 17.57.010 from one private
parking space for each dwelling unit to a total of 26 spaces.
That application was based on a survey conducted by the
Senior Citizens of Kodiak that indicated approximately 25%
of the senior citizens that would desire to live in the
project owned automobiles. [TR 36] Of a previous informal
waiting list of 40 persons desiring to occupy housing for the
elderly, only six had automobiles, [TR 39] and of 25 applicants
received at the time of hearing, only five had cars. [TR 77]
Applying appropriate percentages to those figures, it appeared
that the elderly and handicapped would have perhaps ten
cars. The staff of the project would utilize four to six
parking spaces and the remaining ten spaces would be avail-
able for visitors. [TR 77-78]
The requirement actually established by the Planning
and Zoning Commission relating to the number of parking spaces
was based upon a presentation by the Planning Staff. In that
presentation, the staff had advised that a 1974.survey of the
Kodiak area elderly indicated that approximately 38% of those
individuals owned a vehicle. [TR 102] If that figure were
utilized, the residents would need approximately 21 parking
spaces, four to six would be needed for the staff, and
10 or 12 spaces would be available for visitors.
Again, the criteria established by Section 17.66.090
reflect that the variance may be properly granted. Exceptional
conditions applicable to the intended use or development of the
project exist which do not apply generally to other properties
in the business district. The project site will be utilized
for the elderly and the handicapped and surveys that have
been conducted reflect a low vehicle ownership rate among
-15-
COLE, HARTIG,
RHODES, NORMAN
& MAHONEY
SUITE 261
717 K STREET
ANCHORAGE, ALASKA
99501
TELEPHONE
(907) 274-3576
the elderly and the handicapped. Those survey results are
consistent with the results reflected in cases from other
jurisdictions. Thus, in the case of M Company v. City of Detroit,
49 Mich. App. 136, 211 N.W.2d 565, 567 (1973) the Court said:
Appellant next argues that, assuming the
ordinance is constitutional, the board's
determination was contrary to both the
spirit of the ordinance and the evidence
presented. A review of the record reveals
that there was evidence that in 12 similar
projects for the housing of the elderly
only about 30% of the residents owned an
automobile. There was evidence that a ratio
of one parking space to every three apartments
was adequate to handle the resulting traffic
volume. The validity of that evidence is a
question of fact which was properly addressed
to the Board. Since there was sufficient
evidence to support the board's finding that
the 159 spaces would be adequate, this Court
will not disturb that finding.
It is interesting to note that the normal number of parking
spaces for an apartment that would have been required in the
M Company case was 590.
In a similar case involving elderly housing, the
Court in McCrann v. Town Plan and Zoning Commission, 161 Conn.
65, 282 A.2d 900, 904 (1971) advised that
The finding of the commission that this
type of housing does not require the same
number of parking spaces normally required
for residential housing, its modification
of the parking rules and its acceptance of
the proposed number of parking spaces in the
site plan as adequate, were not unreasonable.
In that case, the site plan provided 31 parking spaces for
46 dwelling units.
The approach utilized by the Planning Commission of
ewing the project from time to time to determine whether
the parking requirements would-change was also proved by the
Court in the M Company case. In support of its approach to
parking the Court observed that
There is nothing that is less appropriate to
the development of low cost housing than to
burden it with the unnecessary expense of
unneeded parking facilities.
M Company, supra at 568.
-16-
COLE, HARTIG,
RHODES, NORMAN
& MAHONEY
SUITE 201
717 K STREET
ANCHORAGE, ALASKA
99501
TELEPHONE
(907$ 274 -3576
The strict application of the parking requirements
would deprive the residents of the project of land that will
be used and developed as.a park for the project residents.
In this regard it should be noted that adequate space does
exist to provide all required parking spaces if it is determined
to be necessary. It is merely a question of determining which
type of development, paved parking spaces versus park area,
would be most beneficial. However, requiring more parking
spaces than might reasonably be necessary would constitute
an additional unnecessary hardship.
No material damage or prejudice will result in the
vicinity, particularly to the property owned by Appellant
and others appearing at the hearing to oppose the variances.
It was asserted by the attorney for Appellant that a poten-
tial problem existed in that overcrowed parking conditions
might force people to attempt to park alone Erskine and
Rezonoff Drive and walk into the project. [TR 83] It was
pointed out, however, that there is no access to the project
from Rezonoff Drive either by road or by foot and it was
therefore physically impossible for anyone to utilize
Rezonoff or Erskine areas for parking related to the pro-
ject. [TR 87]
There was no indication that the granted variance
would be detrimental to the public health, safety or welfare
and in fact the question of access to the project was
reviewed closely by the Commission. Finally, the Borough
Planning Staff testified that granting of the variance would
not be contrary to the objectives of the Comprehensive Plan.
This variance should, therefore, be affirmed by the Board of
Adjustment.
-17-
COLE, HARTIG,
RHODES, NORMAN
& MAHONEY
SUITE 201
717 K STREET
ANCHORAGE, ALASKA
99501
TELEPHONE
(9071 274-3576
CONCLUSION
For the reasons set forth above, Sunset Develop-
ment Company beieves that the zoning variances granted to
the Kodiak Eldrly Housing Project are authorized by
Section 17.16.0190 tild are based on facts supported by
substantial evide\nce in the record. Sunset respectfully
requests the Board of Adjustment to make such additional
findings as may be necessary and to affirm the action of the
Commission.
COLE, HARTIG, RHODES,
NORMAN & MAHONEY
Counsel for SUNSET DEVELOPMENT.
COMPANY
By:
-18-
C.,Walter Ebell, Esq.
KODIAK ISLAND BOROUGH
PLANNING AND ZONING COMMISSION
RESOLUTION NO.
A. RESOLUTION OF THE KODIAK ISLAND BOROUGH PLANNING AND ZONING
COMMISSION GRANTING A VARIANCE FROM THE OFF-STREET PARKING REQUIREMENTS OF
"."7,orooF THE KODIAK ISLAND BOROUGH CODE OF ORDINANCES (SUNSET DEVELOPMENT CORPORATION).
WHEREAS, A petition was received from Sunset Development Cor-
poration requesting a variance from the requirements of Section 17.57.010
(off street parking requirement:9), O.E.the 'Kodiak Island Borough Code of Or-
dinances to provide only 26 of the 55, required parking spaces, and;
..'WHEREAS, notice was publiched, notices were mailed and a pub-
,
lic hearing was held, and;
WHEREAS, the Commission found approximately 34% of the elderly
and handicapped persons residing in the Borough own a motor vehicle, and;.
WHEREAS, the, Commission found the Senior Citizens of Kodiak
Association own's and operates two min-buSes for the exclusive purpose of
providing transportation for the elderly, and;
WHEREAS, the Commission found the off-street parking need of the
proposed use were sufficiently Different to warrant a variance, and;
WHEREAS, the Commission found reducing the parking require-
ments.from 55 to 37 spaces would be consistent with the needs of the occu-
pants, and the objectives of the Comprehensive Plan.
NOW THEREFORE BE IT RESOLVED by the Kodiak Island Borough
Planning and Zoning Commission that a variance to reduce the off-street park-
ing requirement from 55 to. 37 spaces is hereby granted subject to the
following condition:
1. The Planning Official shall from time to time check the site
to insure that 37 spaces are adequate. If it is found that additional spaces
are needed, he shall report the need to the Planning and Zoning Commission.
The Commission may then if they seem it necessary, change the variance to
require all or part of the parking spaces required.
ATTEST:
KODIAK ISLAND BOROUGH
PLANNING & ZONING COMMISSION
By
Chairman
P & Z Secretary
KODIAK ISLAND BOROUGH (:, G a -o
PLANNING AND ZONING COMMISSION dill
RESOLUTION NO. ova Si° c. 1 ¢, 1 S , "°'
fiz ®H
A.5 v.iT. /z / %il�iS eta
/3. ce 47 /.1:
A RESOLUTION OF THE KODIAK ISLAND BOROUGH PLANNING AND ZONING
COMMISSION GRANTING A VARIANCE TO PERMIT A BUILDING TO ENCROACH APPROXIMATELY
SEVENTY -FIVE (75') feet INTO A REQUIRED SIDE YARD. (SUNSET DEVELOPMENT CORP.)
WHEREAS, a petition was received from Sunset Development Cor-
poration requesting a variance . from the requirements of Sections 17.18..040
and 17.21.050 (minimum side; yards of the Kodiak. Island Borough Code of Or-
dinances), to permit a building to encroach approximately seventy -five (75')
feet into a required side yard, and
WHEREAS, notice was published, notices were mailed and a public
hearing was hied, and
WHEREAS, the Commission found the site design and building lo-
cation for this use provided the best utilization of the lands,..thus eliminat-
ing the need for a 75' side yard on the west side of the building, and
WHEREAS, the Commission found that granting this request was
consistent with the actions the Commission felt it had taken in 1976, and
WHEREAS, the Commission found the proposed use consistent with
the objectives of the zoning ordinances and the Comprehensive Plan.
NOW THEREFORE, BE IT RESOLVED by the Kodiak Island Borough
Planning and Zoning Commission that the request for a variance is approved.
ADOPTED this 19th day of November , 1978.
ATTEST:
P & Z Secretary
KODIAK ISLAND BOROUGH
PLANNING AND ZONING COMMISSION
By
Chairman
KODIAK ISLAND BOROUGH
PLANNING AND ZONING COMMISSION
RESOLUTION NO,
A RESOLUTION OF.THE KODIAK ISLAND BOROUGH. PLANNING AND ZONING COMMIS-
SION GRANTING A VARIANCE TO PERMIT 55 ELDERLY AND HANDICAPPED DWELLING UNITS
ON A SITE WHICH WOULD ACCOMODATE 40.77CONVENTIONAL DWELLING UNITS. (SUNSET
DEVELOPMENT CORPORATION).
&i..- ' o r ,.,, r r7 )
WHEREAS, a petition was received from Sunset Development] i°aCfn
f ?e •i roil Rea.fj, iLaPtrtn.s75 5e?G ' / ,.Z,. v•fo roar Ti44 N,I
GvA7�� o�c [v.th,:vipw,crC
requesting a variance/to permit the continued construction and use of a;.�build-
ing containing 55 dwelling units for elderly, and handicapped persons on a site
which will accomodate 40.7 conventional dwelling units. And,
WHEREAS, notice was published, notices were mailed and a public hear-
ing was held, and
WHE EAS, the Commission •I-: ;--.i. s an
of— t- he-- i- n-dfividua we 1n ral uidelines for elderly and
_ andicapped— persons ; --ai d
WHEREAS, the Commission found the individual dwelling unit desing re-
quired to meet federal elderly and handicapped housing needs limits the number
of persons per dwelling unit to less persons than would be allowed in a more
conventional 'apartment building, and
WHEREAS, the Commission found the proposed site is .ideally located to
provide the community services and facilities necessary to support the housing
needs of elderly and handicapped persons, and
WHEREAS, the Commission found the total site density generated by
55 dwelling'units would be equal to or less than that generated by 40.7 con -
venti'onal dwelling units, and •
WHEREAS, the Commission found the petitioners owned a 1,600 + square
foot parcel of land immediately'adjacent to Tract "A" which could be incorpor-
ated into the proposed site.
NOW THEREFORE BE IT RESOLVED by the Kodiak. Island Borough Planning
and Zoning Commission that this request for a variance is granted subject to
the following condition;
1. That the 1,631 square foot portion of Lot 30, Block 1, Erskine
Subdivision, owned by Mr:oFred Brechan and Mr. Lou Iani,.be sold to Sunset De-
velopment Corporation and included into Tract "A". within 30 days.
ADOPTED this : day of , 1978.
:'.KOD.IAK::ISLAND' BOROUGH
PLANNING AND ZONING COMMISSION
By
Chairman
ATTEST:
P & Z Secretary
KODIAK ISLAND BOROUGH
PLANNING AND ZONING COMMISSION
RESOLUTION NO. Z -78 -12
A RESOLUTION OF THE KODIAK ISLAND BOROUGH PLANNING AND ZONING
COMMISSION RECOMMENDING APPROVAL OF A REQUEST TO REZONE
USS 2537 B.
Lot 39, Block 2, Erskine Subdivision, USS 562 and Tract "A"
WIiEREAS, a petition was received from The Sunset Development
Company requesting • clarification of the status of the zoning of Tract "A ",
USS 2537 B and Lot 39, Block 2, •Erskine Subdivision, USS 562, and
WHEREAS, notice was published, notices were mailed, and a public
hearing was hled, and
WHEREAS, the Planning and Zoning Commission, by motion, reaffirmed
a ruling of the Chair that Tract "A ", USS 2537 B and Lot 39, Block 2, Erskine
Subdivision, USS 562 are zoned Business.
NOW, THEREFORE BE IT RESOLVED by the Kodiak Island Borough
Planning and Zoning Commission that the Commission find that the records of
the Borough Clerk and the official zoning map reflect that the subject pro-
perty is zoned Business.
PASSED AND APPROVED this 18th day of October , 1978.
ATTEST:
Planni g & Zoning Se retary'�N
J.
KODIAK ISLAND BOROUGH
PLANNING AND ZONING COMMISSION
Commission Chairman
HOYT M. COLE
ROBERT L. HARTIG
JAMES D. RHODES
JOHN K. NORMAN
ROBERT J. MAHONEY
BERNARD J. DOUGHERTY
MICHAEL W. SHARON
G. RODNEY KLEEDEHN
J. MICHAEL ROBBINS
ROGER H. BEATY
STEPHEN D. ROUTH
WEV W. SHEA
EDGAR R. LOCKE
ANDREW M. HEMENWAY
OF COUNSEL:
G. KENT EDWARDS
COLE, HARTIG, RHODES, NORMAN & MAHONEY
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
SUITE 201
717 K STREET
ANCHORAGE. ALASKA 99501
(907) 274 -3576
October 18, 1978
Kodiak Island Borough
Planning & Zoning Commission
Kodiak, AK 99615
Gentlemen:
KODIAK OFFICE:
202 CENTER AVE.. BOX 503
KODIAK. ALASKA 99615
(907) 486 -3143
(907) 486 -3144
MICHAEL W. SHARON
REPLY TO:
Re: Kodiak Elderly Housing Project
Petition for Clarification of
Zones and Variances
Our File: 1993 -2
Sunset Development Co. of Kodiak submits the attached proposed
ordinance regarding the ratification of business district zone
of Erskine Subdivision.'.
Very truly yours,
COLE, HARTIG, RHODES,
NORMAN & MAHONEY
By:
BJD:bad
Enclosure
Bernard J. DQ gherty
HOYT M. COLE
ROBERT L. HARTIG
JAMES D. RHODES
JOHN K. NORMAN
ROBERT J. MAHONEY
BERNARD J. DOUGHERTY
MICHAEL W. SHARON
- - -
G. RODNEY KLEEDEHN
J. MICHAEL ROBBINS .
ROGER H. BEATY
STEPHEN D. ROUTH
WEV W. SHEA
EDGAR R. LOCKE
ANDREW M. HEMENWAY
OF COUNSEL:
G. KENT EDWARDS
COLE, HARTIG, RHODES, NORMAN & MAHONEY
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
SUITE 201
717 K STREET
ANCHORAGE, ALASKA 99501
(907) 274-3576
October 18, 1978
Kodiak Island Borough
Planning & Zoning Commission
Kodiak, AK 99615
Gentlemen:
KODIAK OFFICE:
202 CENTER AVE., BOX 503
KODIAK, ALASKA 99615
(907) 486-3143
(907) 486-3144
MICHAEL W. SHARON
REPLY TO: Kodiak
Re: Kodiak Elderly Housing Project
Petition for Clarification of
Zones and Variances
Our File 1993-2
Sunset Development Co. of Kodiak respectfully submits the
following proposed Findings of Fact.
1. That Kodiak Island Borough Ordinance No. 74-5-0
rezoned Lots 40, 41, 42, 43, 44 and 45, Block 2, Erskine
Subdivision, U.S. Survey 562 and Lot 12, Block 3, Original
Townsite of Kodiak, U.S. Survey 2537-B, from R-3 to Commercial
(business).
2. That representations made by Mr. Tani in 1974
regarding building height, which were incorporated in a prefatory
provision of Ordinance No. 74-5-0; were made in contemplation
of a project that was later abandoned.
3. That Kodiak Island Borough Ordinance No.-76-17-0
rezoned Lot 39, Block 2, Erskine Subdivision, U.S. Survey 562,
from R-3 to Business, but a complaint has been filed contesting
the legality of this ordinance based on alleged failure to
comply with notice requiremen,ts.
4. That on 4r about July 28, 1976 Mr. Tani approached
the Borough planning Ataff to request assistance to determine
what additional steps needed to be taken to bring the project
into full compliance with zoning requirements. That in
response to thiS request, the letter dated July 28, 1976 was
prepared by the staff.
Kodiak Island Borough
Planning & Zoning Commission
October 18, 1978
Page Two
5. That on August 10, 1976, the Kodiak Island
Borough Planning & Zoning Commission granted the requested
sideyard variances for the elderly housing project, but a
complaint has been filed questioning the legality of this
action.
6. That on August 13, 1976, a use permit for
construction of the elderly housing project was issued by
Gordon Barnett, the Building official, which represented
that the proposed project was in full compliance with all
zoning requirements.
7. That following the vacation of certain easements
on the property and assurances by the Borough that the project
complied with all requirements, a building permit for construc-
tion of the Kodiak Elderly Housing project was issued.
8. That Sunset Development Co. of Kodiak had no reason
not to believe the representations made by the City of Kodiak
and the Borough regarding the project's full compliance with all
zoning requirements.
9. That Sunset Development Co. of Kodiak, relying upon
the building permit and assurances that the project complied with
all zoning requirements, began construction of the elderly housing
project in September, 1977.
10. That as of January 15, 1978, Sunset Development Co.
of Kodiak had expended approximately $1,140,839.00 on the elderly
housing project.
11. That there is a critical shortage of adequate housing
for the elderly of Kodiak Island, particularly the low-income
elderly.
12. That the community need for elderly housing
necessitates the construction of a 55-unit project.
13. That the elderly housing project is insured by
HUD and is 100% qualified for Section 8, Rental Subsistant Funds.
14. That the elderly housing project isapproved
low-income housing and construction of the project will help
alleviate the shortage of low income housing in Kodiak.
Kodiak Island Borough.
Planning & Zoning Commission
October 18, 1978
Page Three
15. That there is no housing available on Kodiak Island,
which is designed specifically for the needs of elderly or handi-
capped occupants.
16. That the design of the elderly housing project
satisfies the special needs of elderly and handicapped occupants.
17. That the design of the elderly housing project
complies with all building code and HUD requirements and,
therefore, fire safety will be promoted by construction of the
project.
18. That characteristically senior citizens own fewer
• automobiles than other segments of our society.
19. That the elderly housing project's location is
within close proximity to the downtown shopping district and
such location will be convenient for the residents thereby
reducing the need for individually owned automobiles.
20. That the provision of twenty-six parking spaces
will provide the elderly housing project with adequate off-street
parking.
21. That there will be no access to the elderly
housing-project from Rezonoff Drive, but such'access will be
available from Erskine Avenue.
22. That construction of the project would not have
an adverse effect upon traffic conditions on surrounding streets.
24. That construction of the mini-park, -in lieu of
additional parking, would be esthetically pleasing and would
• benefit the elderly, who are living in the project, and the
community as a whole.
25. That the project site complies with HUD's land
use intensity factor requirements.
26. That for the project to be financially feasible
on this site, it is necessary to construct a 55-unit complex.
Kodiak Island Borough
Planning & Zoning Commission
October 18, 1978
Page Four
27. That the physical characteristics of the project
site placed restrictions, on building placement.
28. That the physical circumstances present at the
project site are not generally applicable to other property in
the same business district.
29. That the strict application of the zoning restrictions
would result in practical difficulties in building placement,
which would cause the property owner unnecessary hardship.
30. That the strict application of zoning requirements
would necessitate the construction of a project of insufficient
size to be financially feasible.
31. That the granting of sideyard, lot area and parking
variances will not result in material damage or prejudice to
other properties in the vicinity of the project, nor will the
granting of such variances be detrimental to the public health,
safety or welfare.
32. That the granting of sideyard lot area and parking
variances will not be contrary to the objectives of the com-
prehensive plan.
33. That the described property is designated as a
business zone by the comprehensive.
34. That the business district of Kodiak is expanding
towards Rezanof Drive.
35. That the elderly housing project will function as a
buffer zone between the growing business district of Kodiak and
residential districts.
36. That zoning the described property business is good
zoning practice and will benefit the general welfare.
37. That zoning the described properly business
enhances the systematic development of Kodiak.
Kodiak Island Borough
Planning & Zoning Commission
October 18, 1978
Page Five
38. That adjacent property to the southwest of the
described property is presently zoned business.
39. That zoning the described property business
would not constitute "spot"-zoning.
40. That a community is obligated to provide adequate
housing for its elderly and handicapped residents.
41. That the construction of the elderly housing
project will benefit the community's general welfare.
Very truly yours,
COLE, HARTIG, RHODES
NORMAN & MAHONEY
By:
BJD:ad
Bernard J. /Dougherty
Kodiak, Aisiska 99613
'KODIAK ISLAND BOROUGH • Box 1246
FIRST CLASS MAIL
NOTICE OF PUBLIC HEARING
The Kodiak Island Borough Planning and Zoning Commission has received a peitition
from SUNSET DEVELOPMENT COMPANY
requesting 1) Rezoning of-Lot 39, Block 2, Ersking Subdivision, USS:562 and Tract "A".
USS 2537 and USS 562 (fortherlY Lots 40-45, Block 2, Erskine Subdivision; USS 562 and :
Lot 12, Block 3, original Townsite, USS-2537 B.
2) A request for a variance to permit the continued construction & use of a 0
building containing 55 dwelling units on a site which .will only accommodate 40.7 units;
3) A request for :Lvexii.O.mgo to permit the continued construction & use of a
building which encroaches into required yards, and,
4) A request for a variance to permit the continued use and construction
of a building which provides only 28 of the 55 offstreet parking spaces required
by the Zoning Ordinance.
The Kodiak Island Borough Planning and Zoning Commission will hold a Public Hearing
on this matter at 7:30 p.m., Wednesday, October 18, 1978 .
in the Borough Assembly Chambers, 700 Upper Mill Bay Road, Kodiak. You are being
notified because you are either the property owner of the above-referenced lots, or
an owner of property within 300 feet of the above-referenced property. This will be
the only Public Hearing before the Planning:and Zoning Commission on this petition,
and you are invited to appear and voice your opinion. If you cannot attend, you may
submit a written opinion that can be read into the minutes of the Public Hearing.
If you would like to comment on the petition proposal, this form may be used for
your convenience, and returned to the Planning Department.
Further information is available from the Planning Department, telephone 486-5736.
KODIAK ISLAND BOROUGH
Department of Planning and Community Development
Name Address
Legal Description
Comments
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KODIAK ISLAND BOROUGH
Box 1246
Kodiak, Alaska 99615
FC.01101111•MINIIM
FIRST CLASS MAIL
NOTICE OF PUBLIC HEARING
The Kodiak Island Borough Planning and Zoning Comudssion has received a peitition
from SUNSET DEVELOPMENT COMPANY
requesting 1) Rezoning of Lot 39, Block 2, Ersking Subdivision, USS 562 and Tract "A".
USS 2537 and USS 562 (formerly Lots 40-45, Block 2, Erskine Subdivision, USS 562 and.
Lot 12, Block 3, original Townsite, USS 2537 B.
2) A request for a variance to permit the continued construction & use of a
building containing 55 dwelling units on a site which will only accommodate 40.7 units;
3) A request for cvextUngeo to permit the continued construction & use of a
building which encroaches into required-yards, and,
4) A request for a variance to permit the continued use and construction
of a building which provides only 28 of the 55 offstreet parking spaces required
by the Zoning Ordinance.
The Kodiak Island Borough Planning and Zoning Commission will hold a Public Hearing
on this matter at 7:30 p.m., Wednesday; October 18, 1978
in the Borough Assembly Chambers, 700 Upper Mill Bay Road, Kodiak. You are being
notified because you are either the property owner of the above-referenced lots, or
an owner of property within 300 feet of the above-referenced property. This will be
the only Public Hearing before the Planning:and Zoning Commission on this petition,
and you are invited to appear and voice your opinion. If you cannot attend, you may
submit a written opinion that can be read into the minutes of the Public Hearing.
If you would like to comment on the petition proposal, this form may be used for
your convenience, and returned to the Planning Department.
Further information is available from the Planning Department, telephone 486-5736.
KODIAK ISLAND BOROUGH
Department of Planning and Community Development
Name Address
Legal Description
Comments
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KODIAK ISLAND BOROUGH
ORDINANCE NO.
AN ORDINANCE OF THE KODIAK ISLAND BOROUGH
ASSEMBLY RATIFYING THE BUSINESS DISTRICT
ZONE OF LOT 39, BLOCK 2, ERSKINE SUBDIVISION,
U.S. SURVEY 562 AND CLARIFYING THE BUSINESS
DISTRICT ZONE, TRACT "A ", U.S. SURVEYS
2537 -B AND 562.
WHEREAS, Alaska Statutes 29.33.090 empowers the
Borough to enact zoning plans and to provide for its adminis-
tration, enforcement and amendment, and
WHEREAS, the Kodiak Island Borough has pursuant thereto
adopted Chapter 17 of its Code of Ordinances and Resolutions which
contains planning and zoning provisions and procedures, and
WHEREAS, Ordinance No. 74 -5 -0, adopted March 7, 1974,
rezoned Lots 40, 41, 42, 43, 44, and 45, Block 2, ERSKINE
SUBDIVISION, U.S. Survey 562, and Lot 12, Block 1, KODIAK'
TOWNSITE, U.S. Survey 2537 -B (replatted as Tract "A ", U.S.
Surveys 2537 -B and 562) from R -3 to Commercial, and
WHEREAS, Ordinance No. 76 -17 -0, adopted July 1, 1976,
rezoned Lot 39, Block 2, ERSKINE SUBDIVISION, U.S. Survey.
562 from R -3 to Business, and
WHEREAS, a complaint has been filed in the Superior
Court for the State of Alaska, Third Judicial District, at
Anchorage, contesting the effect, propriety and legality of the
above ordinances, and
WHEREAS, a petition has been received from the property
owner of Lot 39, Block 2, ERSKINE SUBDIVISION, U.S. Survey 562
and Tract "A ", U.S. Surveys 2537 -B and 562 requesting that the
zone of the property be ratified as Business with the use
restricted to the 55 -unit elderly housing project now being
constructed, and
Ordinance No.
Page One
WHEREAS, the petition was considered and approved by the
Planning & Zoning Commission on the 18th day of October, 1978,
and said body has recommended the ratification of the Business
Zone applicable to the property with the use restricted to
the 55-unit elderly housing project now being constructed,
and
NOW, THEREFORE, BE IT ORDAINED, by the Borough
Assembly of the Kodiak Island Borough that the property described
as:
Lot 39, Block 2, ERSKINE SUBDIVISION, U.S.
Survey 562 and Tract "A", U.S. Surveys
2537-B and 562.
BE AND THE SAME IS declared to be zoned as Business with the
use restricted to the 55-unit elderly housing project now
being constructed thereon and that notice of this Ordinance
be given by publication in the Kodiak Mirror seven days
prior to the Second Reading and public hearing; that the
public hearing be held thereon on the date of the second
reading and that this ordinance shall be in full effect at
the time of adoption.
KODIAK ISLAND BOROUGH
By:
Presiding Officer:
Mayor
Ordinance No.
Page Two
The following is a verbatim translation from a portion
of the public hearing held @ 7:30 p.m., October 18, 1979, in the
Kodiak Island Borough Assembly Chambers, 700 Upper Mill Bay
Road, at the regular meeting of the Planning and Zoning
Commission.
The minutes of the October 18 meeting were recorded
by and electronic recorder and also by KMXT - FM radio. Subse-
quently, .0-ley were transcribed by Island Secretarial Service from
tapes that were provided by the Kodiak Island Borough. Several
months later it came to the attention of I.S.S. via Mr. Walt
Ebell that there was a question in his mind as to whether or not
there was a void in the transcription as he noticed a difference
between KMXT'stapes and the transcription done by I.S.S..
Island Secretarial Service then proceeded to research this and
discovered that there was, indeed, a void in the . borough tapes
and in the transcription done based on these tapes. This void
consists of approximately 30 minutes- -which would feasibly
indicate that in the process of recording, somehow one side of
a tape could have been lost.
The following transcript deals only with that part of
the meeting which KMXT recorded and the Kodiak Island Borough
did not.
ISLAND SECRETARIAL SERVICE
P. 0. BOX 2684
KODIAK, ALASKA 99615
907 - 486 - 4837
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A continuation from Line 29, page 20, October 18, 1979 Planning
and Zoning meeting transcript:
MR. PUGH: O.K. this letter from the notes that I have now, I
have a copy of it in my hand, seems to address itself to
what I consider to be three specific things. The first thing
is that..or one of the three things that it requests is that
the building height be allowed to go above the restrictions of
the ordinance to sit approximately 22' above the heigth
of Rezanof Drive. It also addresses itself to the fact that
it, wants a 55 unit housing development on this particular
piece of property which uh although it doesn't seem to address
itself to the fact that the lot is undersized. It also
addresses itself to the fact that it wants uh it asks for
an exception to go into the side lots. Now, this letter I
assume was submitted to the Planning Zoning Commission. And
what action exactly did the Planning and Zoning Commission
take on the requests in this letter?
MR. DOUGHERTY: The Planning and Zoning Commission granted a
variance nor side lot only, I believe. The others were not
specifically addressed, is my rememberance.
MR. PUGH: O.K. So, so..
20 MR. DOUGHERTY: Uh the height variance I believe probably was not
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addressed because it really is not at issue. The building
is within the heighth restrictions as the architect will
compute. And I would imagine that's why that was not consid-
ered even though I do not, I can not say that first hand. As
to why the other issues were not specifically addressed, I
do not know.
MR. PUGH: O.K. I'm just wondering. O.K. Then the last questio
that I have is uh you have testified that the 55 units is
'what was economic, considered economically feasible.by the
Washington Mortgage Company. Is this 55 units, was that'the
minimum that was considered acceptably feasible financially,.
ISLAND SECRETARIAL SERVICE
P. O. BOX 2684
KODIAK, ALASKA 99615
907 - 486 - 4837
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by this corporation?
MR. DOUGHERTY: Yes.
MR. PUGH: Was that the minimum figure?
MR. DOUGHERTY: That was, 55 units was the minimum figure for the
financing to be available. My understanding is also that it
was a function of need. But I believe that Mr. Murray would
be able to comment better on that I.
MR. ERWIN: Now, you're saying that the mortgage company said
it was 55 units and not HUD that said it was 55 units?
MR. DOUGHERTY: That's correct.
MR. PUGH: O.K. And one thing that I want to get clear for the
record uh on this July 28 letter and maybe I should uh I
should probably address this to Mr. Iani later and not to you
but, all that you are stating is that the basic information
contained in this letter was given in rough draft for, the
basic ideas were given to Mr. Iani by a member' of the Planning
Staff but the borough itself did not in any actual way type
or write the final letter for Mr. Iani?
MR. DOUGHERTY: No. I'm saying directly to the contrary. That
Mr. Iani and Mr. Brechan came to the Borough Staff and asked
them, 'what else is needed'? And this letter was drafted by
the Borough Staff. Actually drafted as its written.
MR. PUGH: O.K.
CHAIRMAN BUSCH: Any other questions at this time? Thank 'you.
Anyone else wishing to speak concerning Sunset Development
Corporation?
MR. IANI: Mr. Chairman, some of the things that I going
go through are going to be repetitious but I don't really
feel that I can leave them out and I want everybody in the
audience to bear with me. My name is Louis Iani. I am with
Sunset Development Company of Kodiak, developer of the Kodiak
ISLAND SECRETARIAL. SERVICE
P. 0. BOX 2684
KODIAK, ALASKA 99615
907.436 -4337
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Elderly Project. I would like to give a little of the history
of how this project came about. Back in April of 1974, Fred
and Ruth and my wife and I bought Lots 40 to 45 in East addi-
tion. On November 22 of 1972 we purchased Lot 12, Block 1.
It was our intention at that time to put some type of apart-
ments on this lot. Accordingly, in 1973 we had Roland Jones
draw us a preliminary design for apartments. And due to the
narrow long shape of the lot, we needed to be able to build on
the rear lot line. So we were advised by the then planning
commission to get a set back variance to have these two pieces
of property rezoned to business instead. Accordingly, the
subject property was rezoned April 7, 1974. And subsequently,
afterwards, financing was very difficult to obtain so this
project was completely abandoned. In the fall of 1974 at the
common urging of the Kodiak Senior Citizens and Fred Brechan
we retained John McCool of Northwest Design Associates and he
looked over the site and said that without lot 39 it would
be virtually impossible to build on. So accordingly,we approac
ed Mr. and Mrs. Cecil Wilson and bought lot 39 in May of 1975
which enabled us to proceed with the preliminary design as far
as the Kodiak Elderly Development was concerned. It was
determined by Washington Mortgage Company, the mortgagee of
this project, that a minimum of 55, of units was needed to be
able to secure financing for this type of project. In May of
1976 we wrote a letter to the Borough asking that Lot 39 be
rezoned to business so that we could proceed with the Kodiak
Elderly Housing Project. Upon approval, at the assembly'
level of the rezoning, we then proceeded as quickly as possible
to bring this project to Kodiak. After this rezoning we went
to the Planning Department of the borough and asked them
specifically what else was needed to make this project complia-
ISLAND SECRETARIAL SERVICE
P. 0. BOX 2684
KODIAK, ALASKA 99615
907 - 486 - 4837
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ble with the Kodiak Island Borough codes. We were told that we
needed a set back exception, and I'm using the word 'exception
because that's what they told us was needed instead of a
variance, where the building zone butts up to the residential
district at a height exception. Not knowing how to properly
prepare this letter to request the needed exception, the
Planning Department volunteered to write the letter and did so,
requesting the necessary exceptions to have this project in
full compliance. At the Planning and Zoning meeting in August
of 1976, it was decided that the heighth was already in
compliance, so that the Planning and Zoning Commission addresse
itself to the set back exception. We were granted that. Then
there was a discussion at the time of building across lot lines
We subsequently had no problem because of the replatting. We
were issued a use permit on August 13, 1976, that this project
was in complete compliance with all zoning requirements and
restrictions. With this use permit, we were able to finish
the financial arrangements necessary to build this project.
Accordingly, on September 2 of 1977 we received a letter from
the Planning Department stating that we had the last approval
necessary to begin construction, which began on September 15 of
1977. The total cash dispersed out of the loan as of 9/1/78 is
$1,793,158.29. Actual cash spent by Sunset Development Company
of Kodiak as 9/15/78 is $305,495.89. Giving us a total as of
9/15/78 of 2,098,654.18. And the total estimated project of
, the, cost of the project will be right under $3,000,000.00.
We feel that it will be $2,982,425.69. We are hoping to 'have
occupancy around the 15th of November. If there's any.ques-
tions....
CHAIRMAN BUSCH: Mr. Baker, did you have a question?
MR. BAKER: Yes. Lou, you indicated that you went to the borough
ISLAND SECRETARIAL SERVICE
P. 0. BOX 2684
KODIAK, ALASKA 99615
907 - 486 - 4837
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for assistance. Do you recall, now this would apparantly be
just prior to this letter that they gave you assistance with uh
3 that would have been early August of 1976?
4 R. IANI: Um -uhm. Correct.
5 R. BAKER: Uh, did we have a Planning and Zoning Officer at that
time?
7 R. IANI: I don't think we had two at the time. I think there was
8 just one.
9 1R. BAKER: But did we have someone in that capacity?
10 R. IANI: You had definitely somebody in that capacity.
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R. BAKER: O.K. And you indicated that you had a letter which
stated that all of the zoning stipulations and requirements
had been met?
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at that time and we call it a use permit. That's what allowed
us to proceed with financing. HUD wouldn't have gone any
farther without that use permit.
MR. BAKER: Is that letter in our packet?
MR. IANI: I hope so.
MR. DOUGHERTY: Excuse me, Mr. Chairman if I may interrupt. These
letters are all in the information which was given to,uh I
should have xeroxed them but I didn't, to either the attorney
or Mr. Milligan this afternoon. I thought they would be
photocopied for tonights meeting for you to have available.
But they obviously have not been. Uh I would like to find,
if there is a place in the building to make copies, to have
them made so that you can review them.
CHAIRMAN BUSCH: If you have one copy, we can just pass it around
'here and take a look at it.
MR. BALL: We have uh, they're what these are right here, isn't.
it?
ISLAND SECRETARIAL SERVICE
P. O. BOX 2684
KODIAK, ALASKA 99615
907.486 -4887
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■1111•..._
CHAIRMAN BUSCH: Does anyone else have any questions for Mr. Iani.
MR. BALL: Yes.
CHAIRMAN BUSCH: Mr. Ball?
MR. BALL: I just want one and I don't know if it's relevant or
not. You mentioned that you started with a certain number of
lots and you purchased lot #39 to make the project feasible.
You purchased lot #39 for this particular project then. Is
that right?
MR. IANI: It's the only way we could have built the project.
MR. BALL: That's right. In other words when you...
MR. IANI: Without Lot 39 it would have been impossible to build
any building on there because actually in an elderly develop-
ment, and I'm sure that the later witnesses will agree, you
have to have a core area. And there would not have been
enough land for us to put a core area. In other words, we
could have put a long, narrow building. But we couldn't
have had something that's centrally located.
MR. BALL: How many units did you have in mind when you purchased
Lot 39?
MR. IANI: When we purchased Lot 39 we had already been notified
by the mortgage company that that's how many units would have
had to be to make it successful.
MR. BALL: Thank you.
CHAIRMAN BUSCH: Any other questions? Thank you Mr. Iani.
MR. IANI: Thank you Mr. Chairman.
MR. McCOOL: Mr. Chairman, Ladies and Gentlemen, my name is John
McCool. I'm the project architect for Northwest Design
Associates. The evolution of the project is pretty much'as
I've heard here tonight. The only, my involvement began at
about the point that Mr. Iani just finished relating to. ,
We have uh let me digress a moment. We have done a number'of
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P. 0. BOX 2684
KODIAK, ALASKA 99615
907 • 486 - 4837
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elderly housing projects in the HUD programs over the years.
I personally have been responsible for some 20 to 25 elderly
housing projects. And probably some 35 to 45 HUD projects.
And in approaching this problem uh to attain the 55 units
that were required by the economic analysis performed by the
mortgage company and meet the HUD criteria as well as the
uniform building code criteria which is used in this state and
by your building authority it becomes necessary to place a
core containing an elevator for the vertical transportation
at a pin wheel or a center fashion. In this case, this area
right here. (indicating) The HUD regulations are such that
because of fire risk, they limit the number of apartment
units that can be served from each corridor coming off of an
elevator. This makes it, or made it a physical necessity to
attain the Lot 39 which was, which would allow this portion
of the building to be built. Without that, as Mr. Iani
states, it would have been physically impossible to build
the project unless, of course, you could erected two elevator
towers. And with the cost of the elevator at some thousands
of dollars, this made the project then physically not accept-
able. I'd just to point out that in developing this drawing
which was submitted, well which was done by us in 15 April
1976, it addressed most of the items and then,a few others
as far as the physical lay out of the building. The height
is designated by dimension here above Rezanof Drive. The
lot coverage is given. The lot size is also shown. The .
set back at the west end and as a matter of fact all of'the
set backs are clearly indicated. Parking, number of
(can't decipher) is indicated. The number of units in each
floor plan is indicated on that drawing , whether or not they
were addressed in the narrative of the letter. Uh some of`
ISLAND SECRETARIAL SERVICE
P. O. BOX 2684
KODIAK, ALASKA 99615
907 - 485 -4837
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the other special features besides this fire compartmentalizatio
uh HUD criteria that this building has relating to elderly are
special. .within this elevator, it is larger than a normal apart-
ment size elevator to handle a hospital stretcher cart. All of
the light switches and outlets in the building are instead of
at a normal four foot heighth, they're at a three foot heighth.
And all of the wall outlets instead of being down at 12" above
the floor, the normal heighth, are up at 18". The intent is,
of course, so that it's easier to reach without having to stoop.
There is an emergency call in each room, each room of the
apartments that trrggers'an alarm at a central location in the
managers quarters as well as uh illuminates a light just outside
the door of the apartment. There is a complete fire sprinkler
system throughout the building which is not required by the
uniform building code but is being constructed in this building.
The uh hand rails are provided in each corridor and there is
a, 10 per cent of the units have a special handicap feature in
the kitchens for wheelchair people and a shower that's much
like a completely open facility, that a wheel chair can be used
in the shower. Those are some of the special features that are
designed into the building for this project. There are several
other requirements relating to fire safety that we had to
incorporate. The HUD regulations are more stringent that the
uniform building code. And 1 might add that the uniform
building code,we were referred to by your authority in develop-
ing the construction documents to the state fire marshalls
office. We do have quite a lengthy correspondence file baed
upon our deliberations with the state fire marshall's office
as well as their final approval, a letter, onthis. That we
were using and gaining the approval for building permit from,
your authority. The, as far as special site constraints other
ISLAND SECRETARIAL SERVICE
P. 0. BOX 2684
KODIAK, ALASKA 99615
907 - 486 -4837
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than this one of the elevator core, there was no possibility
because of the man made embankment created by Rezanof,
there was no possibility of a view to the north unless we
gained much as. .As you can see, this two stories of the building
above Rezanof allow us'to achieve use of that north side of
the building. Otherwise there would have been no chance to
gain anything to the north of the building because of the
man made embankment created by Rezanof. The only project
street, that the fact that it is Erskine Avenue (can't decipher
This project is at the end of this street and so as far as any
influence on the surrounding neighborhood, it seems to be in
a transitional zone. From the office structures to the south
going to this small family structure and then across Rezanof
to the single family. The uh I think that let's see that the..
Once more, repeating myself the height is given dimensionally.
The side yards are indicated. The building volume and the
building lot area are indicated on this preliminary that was
submitted at the time'of, with the letter. I don't have any
more comments that aren't really achieved by this drawing. But
if there are any questions that you might have I'd certainly
try to answer them.
CHAIRMAN BUSCH: Mr. Pugh?
MR. PUGH: O.K. I have several questions. O.K. You were specifi-
cally request that Well, I shouldn't probably preface
these remarks. I am trying to some idea of exactlywhen an
architect plans a building, you know what he, you know maybe
is fed before he sits down and starts drawing.
MR. McCOOL: Sure.
R. I,UGH: Were you specifically requested, shall . we say, to
design a unit with, a building with 55 units or were you just
sort of given the piece of property and said what can you put
ISLAND SECRETARIAL SERVICE
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907.486 • 4837
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on it?
R. McCOOL: Originally we were given the piece of property and the
55 units and I said 'no, we can't do it unless we can achieve
this pin wheel effect from the elevator shaft'. And that
necessitated this Lot 39 which is the lot at this end of the
pinwheel.
R. PUGH: O.K. This building was specifically designed with
senior citizens in mind?
R. McCOOL: That's correct.
R. PUGH: There was no question. You were also, you had this
part of your input.
R. McCOOL: That's correct. We were also fed that it would be a
HUD, not a private, but a HUD senior citizens. So it had to
comply with their minimum property standards.
MR. PUGH: With a certain uh O.K. Now I have a question for you
uh that, you know as an architect you can answer. You know,
like I say it seems that many times we get before this commis-
sion, plans from architects who shall we say, once the plans
have been built then we're stuck asking for variances and
other things sort of to get aground. Do architects at any
time when they're given a plan... Let's say uh I don't know
. do you work out of Anchorage?
MR. McCOOL: Yes I do.
MR. PUGH: O.K. Assuming you work out of Anchorage you should be
possibly familiar with some of the codes here in the state of
Alaska. When somebody comes in with a plan and says, 'O.K.
this is for Kodiak, Alaska', do you at any time ever look at
the borough codes for Kodiak to see if you designing a building
in compliance with the codes or do you just go ahead and
design a building and then sort of leave it to the developer
to, you know, maybe correct certain things in the design:th'at
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may not in the applicable codes of the community?
R. McCOOL: No, it depends on the circumstances. In some instances
you don't have such tight constraints such as the HUD criteria
and in this case the 55 units.
R. PUGH: Well, you know, what I'm thinking of is, if you're given
a lot to build on and I assume you come and you look at the
lot before you design the building, do you design your
building in mind, shall we say with the configuration of the
lot. Or do you design the building in mind with the fact
that the borough codes of Kodiak or Anchorage or whatnot
require that this building be set 10', 15', 25' from this
particular lot line?
MR. McCOOL: Well, in this case when you have a client that says
I don't want anything except 55 units, we design to that
criteria.
R. PUGH: O.K.
MR. McCOOL: But to answer your other question. Normally on
a purely preliminarily basis, sometimes we do a financial
analysis to see what happens if you comply with the highest
and best use allowed by zoning code. And in that case some-
times it comes back, it's not worth developing on.
MR. PUGH: Thank you.
CHAIRMAN BUSCH: Mr. Baker, do you have a question?
MR. BAKER: Can you state then, in this instance, that it did not
occur to you as an architect that the density on this lot
was higher than we would normally allow? This question never
came to you? This never occured to you? Are our regulations
in Kodiak different than for instance Anchorage, as far as
density?
MR. McCOOL: Surely. Surely this occured to us. But we're working
for a client whose giving us the givings and he applied for'a-
variance based on that. So as far as the constraints that we
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were working with, those were given to us.
MR. BAKER: I don't recall a variance that related to the density.
MR. McCOOL: Well, as I said. It's not stated in the narrative
but this was the drawing that we developed (indicating) that
was used as a vehicle to convey what was designed.
R. BAKER: I do understand that. My question to you was though,
as an architect and responsible to your client. It never
occured to you to bring it to his attention or did you observe
that the number of units per square foot of lot area seemed
excessive to the extent of 15 in this particular development?
R. McCOOL: To the extent of 15?
R. BAKER: Something in that order.
R. McCOOL: Oh, I see. As far as number of units?
R. BAKER: Yes.
R. McCOOL: No, not when.. Well, sure it occurs to, lots of
things occur to you but when they're, when the givings are not
in that, you develop an approach to that, that is then
analyzed by HUD by you, by the finance people to see if it's
going to work. And that's, this is the drawing that portrayed
that. As far as the number of units per this lot. That was
what we presented.
21 MR. BAKER: And since you were provided with certain givings then
22 you didn't feel obligated or not required, you ,felt, to point
23 out to the developer that the development appeared to be a
24 heavy density for the area of the property?
25 4R. McCOOL: Yes. Yes we did as a matter of fact. And.it became
26 then a fact that in order to make this thing work according to
27 the financial advisors. Why, they were saying that 'no it
28 won't work at any less density than this'. Yes, your right.
29 We certainly look upon the project and in order to make it
30 work.. An other approach is, of course, to say that you'r
31 not going to use an elevator building in which case then you
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have a..completely another chain of thought that comes out of
it.
. BAKER: Well, of course the..there's two approaches to this.
We're looking at the financial aspect and HUD is suggesting
that in order to make this a viable project or the finance
corporation was saying that in order to make this a viable
project you require X number of units. However, we're addres-
sing a different problem here. And when this question as
far as the density of the development came up, this is now
a question as far as the zoning ordinance in the community
where you're building and this question never came up as far
the zoning...?
MR. McCOOL: Certainly, that's why we developed this drawing. And
when we received your O.K., I'm sorry...the authorities O.K.
to go ahead and when we developed the building documents' we
brought them in and discussed them with your people. We went
to the state fire marshall. We were referred to the state
fire marshall by and large for most of the detail requirements
and at that time you'd expect those things to be brought up.
And the building permit was subsequently issued. Obviously
those are the points. Our, the name of most of our uh
developing construction documents is to discuss it with uh
the planning and the building authority, which.we did in this
case. And then, grant a permit.
The thing that occurs strange is that we asked for
exceptions as opposed to variances. But we ask for exceptions
for a number of thing here. But again, to my knowledge we
never saw anything that asked to allow what appears to be
15 more units than the property will support. We've asked for
uh there's questions concerning side yards and parking as I
recall but in no place in any of this scenerio do we find any
indication that the question of the unit per area ever occured.
ISLAND SECRETARIAL SERVICE
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And yet, you indicate that the question did arise. That it was
discussed.
R. McCOOL: Well, obviously the floor plan always indicated 55
units from this preliminary concept clear on through construc-
tion documents at every conversation that we ever were involved
in.
R. BAKER: Yes. I grant you that the only thing that occurs is
that it would have seemed that in this request, that some point
in there they would have addressed this problem of the number
of units per lot area
R. McCOOL: Well it struck me that at one point we were given to
believe that the volume of the building, that the number of
units were related to the volume of the building and not to
the unit count. And, of course, at that point we had already..
The 55 units was already established so usually at that point
you're discussing the details of the restrictions to develop
construction documents. So it never came up again.
R. BAKER: Is the volume a criteria sometime as far as (can't
decipher)
R. McCOOL: It is in the uh if I'm not mistaken, at the time
that we developed this building it was in your zoning code.
Thank you.
CHAIRMAN BUSCH: Mr. Pugh, did you have a question?
CONTINUED ON LINE 29 PAGE 20 OF THE TRANSCRIPTION OF THE OCTOBER 18,
1978 P & Z MEETING CONDUCTED IN THE KODIAK ISLAND BOROUGH ASSEMBLY
,CHAMBERS.
ISLAND SECRETARIAL SERVICE
P. 0. BOX 2684
KODIAK. ALASKA 99615
907 - 486 - 4837
CERTIFICATE
'UNITED STATES OF AMERICA)
)
STATE OF ALASKA
SS.
I, Deborah Soucy, Notary Public in and for the State
of Alaska, residing at Kodiak, Alaska, do hereby certify:
That this transcription, as heretofore annexed, is a
true and correct transcription of the testimony of said witness,
taken electronically by KMXT-FM and thereafter transcribed by
me;
I am not a relative or employee or attorney or counsel
of any of the parties, nor am I financially interested in this
action.
DATED this 8th day,of May, 1979 in Kodiak, Alaska.
Deborah L. Soucy
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed my seal this 8th day of May, 1979.
•
Notaryiyublic in
and_for Alaska
My commission expires: //-c52/--6P2 .,,
ISLAND SECRETARIAL. SERVICE
P. 0. BOX 2684
KODIAK, ALASKA 99615
907 -486 - 4837
KODIAK ISLAND BOROUGH
PLANNING AND ZONING COMMISSION MEETING
OCTOBER 18, 1978; . at 7:30 P.M.
I CALL TO ORDER
•
The Planning and Zoning meeting was called to order by Chairman Busch, -
, at p.m. in the Borough AsseMbly,Chmabers.
•
•
-ROLL CALL
••
Present
Mr. Ron Ball
Mr. Don Baker
Mr. Dan Busch, Chairman
Mr. Gene Erwin
Mr. Tony Perez
Mr. John Pugh
MINUTES
None at this time.
IV APPEARANCE REQUEST - None
V PUBLIC HEARINGS
Absent
Mr. Phil Anderson, (excused)
Mr. Rick Garnett 'Attorney
. • REZONING.
1. Requesting rezoning of Lot 39, Block 2,
Erskine Subdivision, USS 562 & Tract "A" '
USS 2537 and USS 2537 B. (Sunset Development Co.)
Mr. Milligan had no staff report relating to this, but said that there
•was a great•deal of material on the subject which has been submitted
in past hearings, plus some recent materials submitted within the last
24 hours, relative to this case.
Chairman Busch stated a possible conflict of interest on the part of
Mr. Erwin. Mr. Erwin is a board member of the Kodiak Senior Citizens
as well as a member of the Planning and Zoning, but has no financial
interest in the above mentioned case, and neither does Senior Citizens
have any financial interest. Mr. Baker moved that Mr. Erwin be allow-
ed to participate and vote on this case. Seconded by Mr. Ball. Motion
passed by unanimous roll call vote.
OPENING STATEMENT FROM SUNSET DEVELOPMENT COMPANY REPRESENTATIVE:
BERNARD DOUGHERTY, attorney with Cole, Hartig, Rhodes, Norman & Mahoney,
and we are council for Sunset Development Company of Kodiak, the owners
and developers of the Senior Citizens project:
Explained past history and request outlined materials that have
been submitted. He explained previous parcels consolidated into Tract A.
In 1974 the land comprising Tract A were rezoned from R-3 toBusiness.
The size of the present project of 55 units.was determined by the Wash-
ington Mortgage Company, which is,the mortgaging institution for this
project.
In 1976 at:ember of the Planning and Zoning CommissiOn drafted a
letter which was signed,by Mr., Lou Iani, stating that all F & Z re-
quirements had been met, pOther documenta2land lettdrs7yhave beenusnb-
mittedAto yout5taffTsheiwinethatr,CitY.afid%Borbugh officialshdd eign-
edc.them indicating that everything was in order for this projedt to get
on the road. The project began in 1977. To date, $2,000,000.00,has
been spent on this project.
,There are four variances that are at issue which heighth,
side yard variance, lot area variance, and a parking Variance. .
.1t ,
KIBTLANNING & ZONING COMMISSION - MINUTES PAGE 2
October 18*, 1978, at 7:30 P.M.
• '
OPENING STATEMENT FROM GEORGE,DIXON, legal council for MRS. DAYTON:
GEORGE DIXON: Asks for a government that is ordered-rather than a
governmentthat is arbitrary. He states that the application
was not verified, and that the hearing tonight lacks jurisdic-
tion. He also states that Ms. Dayton did not, receive a public
hearing notice, claiming that'she lives-within the 300' of the
property in question. He also said that the newspaper notice
did not giVe:adeqUate information- as to what was going to be
heard before the Assembly meeting: •
•
1. Requesting a zoning of Lot 39, Block,2, Erskine Subdivision, USS
562, and Tract "A" USS 2537 and USS 2537 B (Sunset Development.)
Chairman Busch states that Tract "A" of USS 2537 & USS 2537 B is
at-this time zoned Business, according to the KM Ordinance #78-5-0.
Therefore there is no need to zone something from Business to
business, which it already is. The Chair ruled'that.Tract._A.is
zoned Business and thus no rezoning of land to Business is neces-
sary. Mr. Pugh moved that the Commission confirm your ruling on
this matter. Seconded by Mr. Ball. Motion passed by unanimous
roll call vote.
Chairman Busch states that Lot 39, Block 2, Erskine Subdivision
is also zoned Business according to KIB Ordinance #76-17-0.
The Chair also ruled on this item that property is also zoned
Business. Mr. Pugh moved that this Commission uphold the Chair
ruling on the zoning status of Lot 39. Seconded by Mr. Perez.
Motion passed by unanimous roll call vote.
2. A request for a variance to permit the continued construction and
use of ,a building containing 55 dwelling units on a site which
will only accomodate 40.7junits. (Sunset Development).
Chairman Busch closed the regular meeting and opened the public'
hearing.
THOSE IN FAVOR OF THE ABOVE ACTION:
BERNARD DOUGHERTY: Made reference to letter of July 28,1976. It
their position thateven though the issue was considered as an
exception that it should have been considered as a variance.
The square footage of this lot is 40,717 sq. ft.. The only way
this project is feasible is if it is economically feasible.
When theproject is finished it will cost just shy of $3,000,000.
The only way that' this project could be build is if it was com-
prised of 55 units. This is not an economic windfall. There
is a clear need for this project in this community, and this will
not be contrary to the objectives of the Comprehensive Plan.
.Mr. Baker: Could you read the letter of July 28, 1976 which you
have referred to several times since the assembly members do not
have a copy? (Mr. Dougherty read the'letter into the record.)
Mr. Pugh: If this project is turned down, does HUD still
guarantee the funds for what has gone on so far?
Mr. Dougherty:.I don't know for certain what the situation would
be- , • •
Mr. Pugh: Does the 40,717 sq. ft. include the park area in it?
Mr. Dougherty: Yes.
The present plan is almost identical to the pre- d
1iminary lay outs. LL
Mr. Lou Ianie: Gave history of action taken since first coming to
P & Z.
John McCool: Project architect, Northwest Design Association.
'
4 , .
KIB PLANNING & ZONING COMMISSION - MINUTES PAGE 3
October 18, 1978, at-7:30 P.M.
JACK SKOODY: (Employed by Dept. of Housing & Urban Development)
Project was submitted for 55 units in approximately May, 1976.
Found application to be adequate. Section &fuMding is a subsidy
that can be put into existing units or into new construction units.
Only available to those who qualify based on income need. The
building is within the heighth restrictions.
DENNIS MURRAY: (Project Director for the Senior Citizens of KOdiuk)
So far there are 25 applicants for the elderly housing. Five of
these individuals have automobiles. Read resolution from the Senior,
Citizens Association into the record. In 1973 there were 13 elderly
living in the Cherri8r14 King apartment building. Nine of the 13
are still living there.
THOSE SPEAKING IN OPPOSITION TO THIS VARIANCE REQUEST:
GEORGE DIXON: Issue is a variance from the code of the KIB. Hesays
that Mr. McCool did not look at the local zoning ordinances, & that
the letter previously mentioned did not direct itself to the density
Or parking problem. He read into the record page #130 of the code of
ordinances. (4 conditions that must exist before a variance can be
granted). Also read 17.66.120, saying that there's been no staff
investigation or recommendation, & 17.66.140, variance denial or
granting of. It's a use variance dealing with an increased number of
units.
LORRAINE DAYTON: Is against the heighth of the structure that impairs
her view, & it devaluates her property values. First opposition was
on December 28, 1977,
MILDRED MACKEY: Says she did not receive anything in the mail saying
what was being constructed almost directly across the street from her.
Structure obstructs my view. She heard a rumor that the building
would not go above the street.level.
Chairman Busch closed the public hearing on the request for a variance
permit, and take a five minute recess. P & Z Commission comments.
Mr. Ball: About 50 notices were sent out, according to Mr. Milligan. Mr. Bull
suggested that the list of those receiving public hearing notices liv-
ing within 300' of the area concerned be placed in the packets. He
Settled at the suggestion to have it available to the commission rather
than having it placed in the packets.
�. A request for variances to permit the continued construction and use of a
builing which encroaches into required yards (Sunset Development).
Staff Report - Mr. Milligan: Stated that minimum side yards of 61/
are required on this project.
Chairman Busch closed the regular meeting and opened the public hearing.
THOSE IN FAVOR OF THE ABOVE ACTION:
BERNARD DOUGHERTY, attorney for Sunset Development: Clarificaton as to
the height of the building. A height variance is not required because
of an alternate in measurement which is provided in Section 17.21'030
Of the KIB Code of Ordinances.
Mr. Busch: This isn't one of the variances being requested, so it won't be one of
the things that we'll be addressing at this time.
Mr. Dougherty asked to submit to the commission an affidavit from Mr.
Ecklund showing that Mrs. Dayton does not live within 300/ of the
petitioned area. She is not entitled to receive mailed notice.
MR. McCOOL: He was aware of Kodiak Island Borough Ordinances, and he
said that itwaS.hj3 understanding that the business zoning required
zero (0) setback.
•
r '
KIB PLANNING & ZONING COMMISSION - MINUTES
October 18, 1978, at 7:30 P.M.
, , •
,'OPPOSED: , MR. 'BILL VANORDEN, lives at 321 Erskine: Lived in Kodiak a year.
In March, 1978 purchased his present home on Erskine, and now his view
. has been taken away,by this elderly housing, which has cost him a de-
,
valuation of his'home of $10-15,000, according to an AnchOrage.appraisor.
(Lot 10, Block 6, Erskine Subd.)
OPPOSED: - MR. ROB SCHOFF, from George Dixon's law firm: 1. We need to determine
. what the approximate encroachment is on a required, 61 •side, yard. It is
* ' . being asked for—the Commission to grant a,59' variance in, a requireC
side.yard. 2. Also.,:; look afthe unique physical hardships 'of the pro-
perty itself, & cOmpare to hardships imposed on other similar zoned pro-
perties in :the area.
MR. LOU IANI: In answer to Mr. Pugh!S question concerning' the height
possibly being lower, RE: blasting the rock in the slope, Mr. Tani said
• that the property belongs to the state & he feels that the state would
not have let them touch that slope.
Chairman Busch closed the public hearing, and opened the regular meeting.
PAGE 4
4. Request for a variance to permit the continued use and construction of a
building which provides only 28 of the 55 offstreet parking spaces required
by the Zoning Ordinance, (Sunset Development).
Staff Report - None
Chairman Busch closed the regular meeting and opened the public hearing
on request #4. (above)
THOSE IN FAVOR,OF THE ABOVE REQUEST:
BERNARD DOUGHERTY: .The notice indicates 28 parking spaces. .There are
only 26 parking spaces currently provided for,, not 28. The 26 parking
spaces are more than adequate as the first 25 applicants have 5 automo-
biles.
•
MR. McCOOL: RE: additional parking spaces be added later,yes, it
could be done.by using the park area; all or part. The site has an
enclosed trash room inside the building.
DENNIS, URRAnf:: Clarifiedthat thereiwOOld beapOnoximately 4-6 vehicles
utilized by the Senior Citizen Association and other staff.
THOSE OPPOSED TO THE ABOVE REQUEST:
ROB SCHOFF: What is reasonable parking provision for this project?
The firm he represents feels that the 55 required parking spaces ac,cord-
' ing to the ordinance.would be appropriate.
• • Chairman Busch closed the public hearing and opened the regular meeting.
Mr. Pugh: Suggested that the Commission postpone any action on any of these matters
until October 19, 1978. Mr. Pugh moved that tomorrow at NOON, the
Commission hold an executive session with the borough attorney, and mem-
bers•of the staff, to answer any questions that we might have RE: to
• point of law, RE: any decisions that we.might make in this case. Scond-
ed by Mr. Baker. Mr. Pugh withdrew his motion on the basis that the
summary's and closing comments by both sides have yet to be made. Mr.
• Baker:withdrew his second as well.
SUMMARY
_SUNSET DEVELOPMENT, (Mr. Dougherty): Ten documents were submitted to the
Commission: He drew particular attention to the letter from Mr, Iani,
dated 28 July 76; letter fromAr. Barnett, dated 13 August 76,,,in which
he states "A proposed project Is in full compliance with -1.1 applicable
zoning requirements and restrictions." Letter'dated 2 • September 77, from
Mr.14illigan, which also states that the action t� vacate easements con-
stitutes the last approval from the borough necessary preparatory to con-
struction. Letter from Mrs. Dayton, dated 11 October 78, which relates
to Section 17.21.010 (B), which she states requires an office use or
business use in a building of this type. This,'in our opinion is in-
correct, to which Mr. Copeland also feels is incorrect.
KIB PLANNING & ZONING COMMISSION - MINUTES
October 18, 1978, at 7:30 P.M.
• SUMMARY (Continued)
PAGE 5
The issue of notice is one which has been bandied about alot.. There
is no access to the building from Rezanoff Drive, which makes it physi
cally impossible to have parking problems on Erskine or Rezanoff.
GEORGE DIXON: States that the building permit was erroneously issued.
Interpreted Mr. McCool as saying.that he purposely designed the build-
ing to rise aboiie Rezanoff to obtain a view. We ask'that you consider
these variance requests as if the building had not yet been constructed,
or without any regard to any pending or possible suit against the
borough.
REBUTTAL
SUNSET DEVELOPMENT, Mr. Dougherty: Mr. Dixon has severely misquoted
Mr. McCool as to the testimony he said Mr. McCool gave. 'RE: •974
ordinance, and the restriction not to build more than one story above
Rezanoff, which I think is easily explained from the project that was
contemplated at that time, but was subsequently abandoned, if the KIB
is contacted that this would be cleared up in favor of Sunset Develop-
ment. Mr. Vanorden purchased his house when the fifth story of this
building was already framed and the value of his house should not be
affected. Section 17.66.090, interpretation emphasized that it is not
only physical circumstances of the lot that you can look at, but you can
also look at conditions applicable to the property or its intended use.
Zoning laws are not meant to enforce one persons views. He feels that
Mrs. Dayton is using the zoning laws to satisfy her own position. There
is no right, in the U.S., to an easement for view.
Mr. Pugh moved that the Commission meet tomorrow with the borough attor-
ney to discuss the legal matters, possibly with implications pertaining
to law suits, and would request that at noon tomorrow that we go into
executive session. Seconded by Mr. Baker. Motion passed by unanimous
roll call vote.
Chairman Busch recessed current meeting until October 19, 1978, at Noon,
being resumed into executive session,. which will be further recessed un-
til tomorrow evening, at which time we'll continue on with our agenda,
taking any other action concerning Sunset Development and also consider
the other requests for subdivisions and other new business. Tomorrow
nights meeting will be in the High School Library, and tomorrow noon's
meeting will be held in the Borough Assembly Chambers.
VI. ADJOURNMENT,
\.ATTEST
Chairman Busch recessed October 18th meeting until Noon, October 19
and further recessed until 7:30 p.m., October 19th, 1978.
Secre
61f1)-& Z--Commission
( — "
APPROVED BY:
KODIAK ISLAND BOROUGH
PLANNING & ZONING' COMMISSION MEETING - MINUTES
(Continuation of regular meeting from October '18, 1978, at 7:30 P.M :)
OCTOBER 19, 1978, at. 7:30 P.M.
Held in the High School Library
II
-:CALL TO ORDER
PAGE 7
At 7:45 P :M. Chairman Busch called the 'reconvened . meeting of October 18th
to order in the High School-Library. •
. ;
ROLL CALL
Present
Mr. Ron Ball
Mr. Don Baker.
Mr. Dan Busch, Chairman
Mr. Gene Erwin
Mr. Tony Perez
Mr. John Pugh
A quorum was established.
:Also Present
Mr. Harry Milligan
III STAFF REPORT
Absent
Mr. Phil Anderson (excused)
Mr. Milligan presented an analysis report as requested by the Planning
and Zoning Commission.
IV PUBLIC HEARI :NG
Chairman Busch reopened the public hearinV-R
report,..and closed the regular meeting..
MR. ROB SCHOFF, representing Lorraine Dayton: Objected to not having
an advance notification of staff report, and opportunity to review the
report. Referred to Section 17.75.060 of the KIB Code of Ordinances,
and read this into the record, and also read other sections into the
record as well. (Mr. Schoff did not stick to the rebuttal of the staff
analysis).,
. Mr.' Milligan's. staff
HOWARD LANGVILLE: Just moved to Kodiak four months ago. Gave his
understanding as to what happens when a person wants to put up a
building.
,Chairman Busch.closed the public hearing and reopened the regular meet-
ing.
BERNARD.DOUGHERTY: (Mr. Busch asked why they came back and asked for
these variances ?) Because of the lawsuit that was filed by Mrs.
Dayton has threatened:to stop completion of the project and
occupancy of the elderly housing project, & we felt.that coming
back to the p & Z Commission, if necessary; the Assembly, was the
shortest & most efficient way to deal withthe threat over the
project. The'doubt as to the validity of the granting of the
variances in 1976 is what has caused the lawsuit:
#1) Mr. Pugh moved that the P & Z Commission grant the request for a
,variance to permit the continued construction and use of the building
;containing 55 dwelling.units on the site which.will only accomodate 40.7
;'units, with the stipulation that that portion of Lot 30;:Block 1, which:.
now owned by Mr. Lou Iani & Mr.' Fred Brechan, consisting•of:approxi
mately 1631.', be sold to Sunset development and included in.the'total
lot size within the next 30 days. Seconded b • Mr. Ball.-.-Motion assed
:5= 1 ',;'withiMr.:., Baker casting a,:No.Note:. Mr :: Ba.er;;relatedrhis . reasOn.'for
';voting 'as:;.heti di d::
' KODIAK ISLAND BOROUGH
' PLANNING & ZONING COMMISSION MEETING - MINUTES
(Continuation'of regular meeting held October 18, 1978)
OCTOBER 19, 1978, at 7:30 P.M.
Held in the High School Library
PAGE 8
#2) Mr. Pugh moved that the Commission grant a request for variances to
permit the continued construction and use of a building which encroaches
into the required side yards of approximately 75'. Seconded by Mr. Ball.
Motion passed 5;-.1, with Mr. Baker casting a NO vote.,
#3) Mr. Pugh moved that the Commission grant a variance to permit the con4.
tinued use and construction of a building which does not provide all of
the required off-street parking spaces, with the following stipulations:
l)They provide 37 parking spaces, 2) that the designated zoning author-
ity/agent of the Borough shall from time to time check the building to
see that the required number of parking spaces is adequate, & that if at
any time he deems it necessary that more parking spaces be added, that
he so inform the developer, & that the developer must then provide the
additional parkin spaces, but he does have a right of appeal to the
Planning & Zoning Commission. Seconded by Mr. Ball.
Mr. Pugh amended the above motion, with consent of the second, & strike
the last portion, and change that the Planning Official shall make a re-
port to the Commission and that if the Commission deems that more park-
ing spaces are necessary, that this should so change this variance re-
. quest. Discussion followed between the Commissioners & Mr. Milligan con-
cerning strain'.:be placed on the P & Z Commission rather than the P & Z
Department being responsible for requiring, on inspection from the build-
, ing official, putting in additional parking spaces should they be needed
at a future date.
Mr. Pugh amended, for the record; the motion above to read that the
Borough Planning Department shall from time to time check the parking re-
quirements of the building. If they should find that the parking is in-
adequate, they shall make a report to the Commission, and the Commission
shall then take action to amend this variance to require more parking, if
it is deemed necessary.
So the motion should read as follows: Mr. Pugh moved that the Commission
grant a variance to permit the continued use and construction of a build-
ing which does not provide all of the required off-street parking spaces,
with the following stipulations: 1) They provide 37 parking spaces,
2) that the designated zoning authority/agent of the Borough shall from
time to time check the parking requirements of the building. If they
should find that the parking is inadequate, they shall make a report to
the Commission, and the Commission shall then take action to amend this
variance to require more parking, if it is deemed necessary.
More discussion followed between the Commissioners. Seconded was pre-
viously given by Mr. Ball. Motion passed 4-2, with Mr. Baker & Mr. Busch
casting NO votes.
Chairman Busch recommended that the Commissioners, for the record, give
findings and facts as to why each of them voted as they did so that there
would be a criteria for the record, which each gave .as f011ows:
On the 1st Motion:
MR. PEREZ: These units are more like, they are small units, they
are efficiency/apartment-type units, and only one-bedroom, on the
.whole. The building, having been constructed & designed in this
manner, I couldn't see where not going along with it, where it is
already in it's present state I don't think anything would have
been gained had we gone to the (can't distinguish last word).
I'm very much in favor that the variance could be granted,on the
ground that here we are with smaller units than is ordinarily.
found in a 'regular apartment building as such, and this is one
of the reasons that 1 voted the way 1 did.
KODIAK ISLAND BOROUGH
' PLANNING ZONING COMMISSION MEETING - MINUTES
/CoDtiDUation^Of regular meeting held October 18, 1978\
' `CTOBER 19,^1978, at 7:30 P.M.
Held in the High School Library
PAGE 9
MR. PUGH: The reasons why I went for the variance on the 55
units in the area only allowing 40.7, were among other things,
that l felt that the density factor, due to the fact that this
complex was designed for senior citizens, was not that major a
factor Oth 15 more units being provided. l also felt that the
topography .of the site limited the development of the building,
. . �
that the location of the building was excellent as far as the
use of the building by senior citizens to be within the close
walking distance to the doctor's, dentists, library, services
that they might need, 3h0p'ing' That the location of the com-
plex was within quick response of both the fire and the police
department needed, and also the ambulance. T felt that this
facility was needed in this community, & l have always felt
that the views of the adjacent property owners, although Kodiak
has some of the most beautiful views in the world, that it
cannot prevent a person from building on his property just be-
cause it will lessen the view of a neighbor, & that I felt that
this request is not contrary to the comprehensive plan.
MR. BALL: Just verifying the voting of the previous Commission.
Also, in looking at the record, all of the data in regards to
the 55 units and the side yards, the parking, everything was
presented to that Commission as it was to us, & that is the rea-
son I voted the way l did, verifying the previous Commissions
findings.
MR. ERWIN: The way T voted was similar to the T voted back
when it first came up, back in August, '76. During that time T
see no reason for any change. I was in favor of all these ex-
ceptions granted at that time. They should have been variances,
T don't know. They were granted, and feeling we were doing
right. The building has been needed extremely the past four or
five years.(Last part lost in changing tapes).
MR. BAKER: The item that T guess that I hung up on was finding
exceptional physical circumstances which would cause us to grant
a variance, that I believe this property could have been develop-
ed, could have been utiliIed. I believe that it is possible
that an architect could have designed the building which better
suited the property. I also felt that.there was prejudice to
other properties in the vicinity, in that I believe that, as a
result of this structure we have affected property values in the
surrounding area, particularly in the area up where the view is
impaired.
MR. BUSCH: I voted the way did for several of the reasons that
Mr. Pugh mentioned, also particularly, the one concerning the
'apartment size or the unit size. Since they are single Unit
'.
dwellings you'll probably have less residents in this complex,
then if it were a 35 multi'-family dwelling unit. So the density
is still going to be less than if it were perhpas an R-3, or
. family, two. or three-bedroom dwelling. So l felt that this vari-
ance could be granted for these reasons.
On the 2nd Motion:
MR. PEREZ: Here again we have to go back to day one when the
first request for the setback was asked for. The property be-
ing zoned business, you can go from lot line to lot line,'& I
think this is what they were more or less thinking about. And I
can see nothing that can be gained by going back and asking for
the 60 some feet setback, whereas, the way the building is set,
and it's locale, it is not injurious to other buildings around
it. l believe that they tried to do the best they could with
what they had at the time.
MR, PUGH: Well, the reason that I voted for the second Variance
is basically that I was trying to affirm or reaffirm the decision
made by the P & Z Commission in 1976, and just to clear up the
KODIAK ISLAND BOROUGH
PLANNING & ZONING COMMISSION MEETING - MINUTES
(Continuatiqn'of regular meeting held October 18, 1978)
OCTOBER 19, 1978, at 7:30 P.M.
Held in the High School Library
PAGE 10
terminology between the word exception, which was granted then,
and the variance, which is the proper thing'that should have been
granted. I also personally felt that by allowing the building to
go the 75' to the side, and approach into the side lot yard re-
qUirement. that this allows a better design on the lot for the
placement of the building, for the placing of the parking, and for
the placing of the proposed park, and/or garden area. .I also felt
that the topography on the land and felt to place the building in
the position that it was.
MR. BALL: (can't decipher), mainly just reconfirming what was
voted on in the 1976.
MR. ERWIN: No reasons I can think of. I already spoke, I already
agree with all of them.
MR. BUSCH: I think my reasons would be to primarily also to re-
confirm the action of the P & Z in 1976, and also ... to allow a
better placement of this building on the lot.
MR. BAKER: The problem I had was again, I-I guess I'm on the
architect here, but it would just appear to me that it was strange
a situation where in one side of the property, (and I'm searching
here for a dimension on this ... I fail to find), I believe I recall
the dimension in excess of 100' at one end of this property, no
building-parking area, and yet at the other end we're within two
foot (2') of the property line. I will admit that there are some
unusual circumstances with the particular lot layout, however, I
again feel that properly designed this building could have been
situated on the lot in such a manner that the, at least the extent
of the encroachment, would not have been so great.
On the 3rd Motion:
MR. PEREZ: Here again, we're dealing with the Senior Citizens,
and a high proportion of them don't have automobiles. The Senior
Citizens company, or whatever it is, that takes care of this, have
a couple of cars and they chauffeur the people. around, so there's
really no need for them to have cars,..and I couldn't see where a
full force on the parking requirement would gain anything here, but
as was amended, well we'll look at it later on, and see how the
parking is (can't decipher).
MR. PUGH: Mr. Chairman, I felt that 37 parking spaces are adequate
at this time due to the fact that I feel that the Senior Citizens
living in the building themselves would not own that many vehicles,
and that the extra parking spaces will probably be there for what-
ever community uh interest uh are generated and uh come to that
building to attend functions. However, I did put the stipulation
• in uh, and I feel strongly that if it proves that we were wrong on
this point that we do have a chance to put in uh 55 parking spaces.
• I feel that this time that to have asked for 55 parking spaces
would have proved an unnecessary hardship on the po on possibly the
residents of the building who would probably have been then depriv-
ed of the proposed park, but I feel that they have more of a thera-
peutic value for the residents of the building than perhaps looking
at an asphalt parking area. I feel that this wouldn't cause any uh
damaging affects to the uh to the surrounding neighbors because due
to the configuration of the land people will not be parking on
Rezanoff Drive or upper Erskine Road to go to this building. There
is not access to the building from that side, and I don't think that
the building will generate any excessive offstreet parking, and I
felt that this was uh not detrimental to the uh occupants ...
MR. BALL: On this issue, I might doubt about voting for 37 parking
spaces and it's for the same reason that uh I believe that the ori-
gional Commission went with 25 or 26 untis, uhm, but I did vote for
37 uh, to get uh the project moving, uh, but I-I would have rather
voted on 26, and I would have ... that also, but as I say everything
I did was based on I believe all this information was before the
KODIAK ISLAND BOROUGH
PLANNING & ZONING COMMISSION MEETING - MINUTES
(Continuation of regular meeting held October 18, 1978)
OCTOBER 19, 1978, at 7:30 P.M.
Held in the High School Library
PAGE 11
previous P & Z in 1975, and I believe they voted that way at that
time, and I was trying to confirm what they voted on.
MR, ERWIN:' The way I voted here was possibly because I've uh
been morg or less associated with the Senior Citizens than most
..,
The various functions that we have, there's very few cars.
Practically all the transportation is furnished by thS.two buses
that Senior Citizens operate. ..uh, one of our largest, one of
the largest uhm turnouts that we had, I think there was possibly
ten (10) cars total, that~wa3'o0VDting our two buses ...(can't
decipher.
MR. BAKER; Well, my concern for the parking is, at this point
I guess, I'm not convinced that we're going to see Only Senior
Citizens in here. Uh, I hope the building is used for that, but
I recognize that we have economic constraints and that if it were
to develop that perhaps the building wouldn't be fully occupied
by Senior Citizens or handicapped, then I can see an eventuality
where other people would be using the parking area and uh, other
people renting the building we might find a situation where they
own several cars. The other thing was the fact that uh the the
parking is a problem in Kodiak. I would have seen that provided
at the outset. It would have been no future issue on the thing.
It would have been dispensed with, the parking would have been
there forever.
MR. BUSCH: l also felt that this unit will be used more for,
orInot more for, but also for other activities other than those
as related to the elderly residents of the of this project.
With uh the meeting room thats there I feel that it will be
probably perhaps available to other non-profit organizations in
the community or could be rented, which could create a number of
vehicles there. And also it was stated that the elderly housing
association, or the elderly people have an organization of 300
members, and now they do have .a place they can have dinners or
have social events or whatever type of organization they may need
or whatever they may have. And uh, T would think that it could
generate a considerable amount of vehicles in this area. I was
opposed to this variance and felt that the required parking should
be required.
OTHER COMMENTS FROM COMMISSIONERS:
MR, ERWIN: Mr. Chairman, on your comment of 300 members, this
is, this uh is people from around the island, this isn't all
local people.
MR. PUGH: Just one comment on parking, and this is informationll
for Commission use only; I talked to Mr. Tani after the meeting,
just /
and I don't know if, this is ' a discusssion that T had with
'
Ha7rY in his office this morning requesting information and what
not, but there was a question raised by either memherS of the
Commission or members of the staff as to whether the parking lot
itself was going to be paved, and the answer is YES, that the uh
housing uh HUD requires that the uh total parking lot for this
project be paved„and it will be_Rayed.
GEORGE A. DICKSON
M. P. EVANS
BEN J. ESCH
M. GREGORY PAPAS
KELLY C. FISHER
DICKSON, EVANS, ESCH & PAPAS
ATTORNEYS AT LAW
880 H STREET, SUITE 200
ANCHORAGE, ALASKA 995 0 I
October 17, 1978
Kodiak Planning &
Zoning Commission
Kodiak Island Borough
Kodiak, Alaska 99615
Attention: Harry Milligan &
Rick Garnett
Re: Petition for Rezoning and
Variances for the Kodiak
Elderly Housing Project
Our File No. 1030.01
Dear Sirs:
TELEPHONE
AREA CODE 907
276-2272
As attorneys for Lorraine Dayton, a citizen of
Kodiak, we are writing to object to the scheduled public
hearing for rezoning and variances for the Kodiak Elderly
Housing Project. The Planning and Zoning Commission Public
Hearing is scheduled for the evening of October 18, 1978.
We are objecting because the petitioners have failed to
properly submit an application.
Section 17.72.030 of the Kodiak Island Borough
Code states that "An application for a change in the boundary
of a district, shall be filed in the office of the Planning
Commission, be accompanied by such data and information as
may be necessary to insure the fullest practicable present-
ment of facts and shall set forth reasons and justifications
for proposing such change." We have asked the petitioners
to supply us with information which supports the statements
in their Petition for Rezoning. They have refused to supply
us with that information prior to the public hearing. We
feel that the petitioner's denial of our request for further
information is in violation of the Kodiak Code and prevents
a meaningful public hearing on the Petition for Rezoning and
Variances. Additionally, we feel that this information
black-out is in violation of the spirit of the requirements
of an application for a variance. See Kodiak 'Island Borough
Code, §17.66.090(b).
To: Kodiak Planning & Zoning Commission
Re: Petition - Elderly Housing Project
Date: October 17, 1978
Page: Two
We also object to holding the public hearing as
scheduled because we feel the application for the variances
has not been submitted as required by Kodiak Island Borough
Code, §17.66.090. As you know, that section of the Code
requires that an application for a variance be filed in
writing and verified by the owner of the property concerned.
According to §17.66.100 of the Kodiak Code, a public hearing
cannot be heard earlier than ten days after submission of a
"Properly submitted application." A petition for a variance
is not properly submitted until it is accompanied by a veri-
fied statement by the owner of the property. The current
petitioners did not submit a verified statement of their
application until less than a week before the scheduled
public hearing. We are now asking you to cancel this public
hearing and reschedule it for a later date in conformance
with the requirement of Kodiak Island Borough Code §17.66.090
and §17.66.100.
While the omission of a verified statement support-
ing the application may seem like a technical point, the
Alaska Supreme Court has seen fit in the past to invalidate
mechanic's liens for failure to comply with a similar appli-
cation requirement. See H.A.M.S. Company v. Electrical
Contractors of Alaska, Inc., 563 P.2d 258 (Alaska 1977). In
that case, the court did not permit the individual seeking a
mechanic's lien to subsequently perfect his interest by a
late filing of a verified statement of his lien rights. We
feel that the same logic is applicable here. The petitioner's
application is not complete and therefore, not properly
submitted, until all of the ordinance requirements are met,
including submission of a verified statement. On page 264
of the H.A.M.S.'s opinion, the court reasoned that the
purpose of the verified statement is to provide a basis to
make certain that the petitioner for the particular govern-
mental action is fully informed of the nature of his request
and the consequences thereof. Again, the logic of the court
in the H.A.M.S. case is applicable in interpreting the
Kodiak Island Brough Code.
To: Kodiak Planning & Zoning Commission
Re: Petition - Elderly Housing Project
Date: October 17, 1978
Page: Three
George Dickson and
Wednesday, October 18, 1978,
postponement to you. If you
will be happy to answer them
myself will be in Kodiak on
to present this request for
have any further questions, we
at that time.
Sincerely yours,
Robert I. Shoa
RIS/kpo
cc: Sunset Development Company
RESOLUTION
Subject: 55 Unit Elderly Housing
Project
Dear Planning and Zoning Officials:
The following resolution was unanimously adopted by the
members of the Board of Directors of the Senior Citizens of
Kodiak, Inc. at the October 17, 1978 meeting* addresses
their sentiments regarding the petition by Sunset Development
Company to clear up any alleged difficulties surrounding the
project.
WHEREAS, the Board of Directors of the Senior Citizens
of Kodiak, Inc., as an interested party of the above mentioned
action, has advocated repeatedly for the construction of an
elderly housing project. Initially, they began their activi-
ties An early 1974 with a survey, and
WHEREAS, that survey demonstrated the need for such a
project as the community of. Kodiak had no facility in the
downtown area which met the special needs of the area's elderly
and handicapped citizens, and
WHEREAS, the Bord researched the downtown area for
available land suitable for the purpose of construction of
such a facility without much initial success, and
WHEREAS, it was learned by the organization that the
partnership of Mr. Louis Iani and Mr. Fred Brechan (formally
known as Sunset Development Corporation) had land adjacent to
the downtown area and suitable for such a development, and
WHEREAS, the Board of Directors of the Senior Citizens
of Kodiak, Inc. approached Sunset Development Corporation as
to their interest in constructing the much needed facility,
and
WHEREAS, Sunset Development Corporation was receptive
to the idea and initiated steps to secure necessary financing
and Section 8 commitment from the Department of Housing and
Urban Development, and
WHEREAS, construction of the facility began in September
of 1977 with completion date expected to be December 1, 1978,
THEREFORE, BE IT RESOLVED that the. Board of Directors
of the Senior Citizens of Kodiak, Inc. strongly encourages the
Planning and Zoning committee to act favorably upon the request
Subject: 55 Unit Elderly Housing Project
Page 2
by Sunset Development Corporation before you at your October
18, 1978 meeting:. Many elderly residents of. the Kodiak Island
community are anxiously awaiting the opportunity to become
residents of this much needed and properly designed facility
fof elderly and handicapped.
DATED THIS 17th. day of October, 1978.
Thank you for your consideration.
Robert Childs,
Secretary
* *One member, Mr. Gene Erwin abstained from voting on the
action
Reference . comments on ` the pet petition from Sunset' Development Company,
lots 39, Block,'2 ,:Erskine US S: 562,-and Tract !!A1B USS
2537- :and :USS 562e', Please • include : :our: remarks in:. the,' ..verbal and r -
written :re of , the 'Public - Hear.,ing', ;October -18, 1918;•:'-7,.::3(Y PM,
A: preject of thisr_magnitudc ..:should have had all rezoning`: and var.
ances;accomp:lished before a' building permit "wail granted and con -:
struct ion- -started';;
1..) We- mutt say :No:to, a rezoning :request that would allw o iise -of
the building',_for any purpose other -than that originally; sbated in
• the • building..permit and replate petition.
e finu`st say "No' to a variance allowi °ng more units o'n the ,sate
ithan permitted iri ":the ;'c(ide. _ It si not ethical `fora con tied tor%-..
owner to knowiii'gly over build on 'a lot °and then ,request a variance
i
ca Os ,it is' already constructed: The number, of units;permatte.d:
on a piece {oft land is quite. easily determined by reference..to the
code :Before tuildiing Taiid a variance _should not be granted' after •
'construction beg ins, especaally in this case which asks for:: a 37%
increase in :'the density= of .units,"
3. )-`We Onus t -Say No to the. variance request for encroachment of
required sideyards;ano the r easily determined parameter, that
show d be adheare.d to befforeconstruction' begins- ;.":t°
4,') W e Host sa'y;No to a variance Jfor a `reduced number of parking
spaces. This-request: for 5_Q %'fewer spaces -than. `required is, outer
rageous °S There are already . egining -ta be := parking problems,. in Kodiak. '.
because, of families and indavidua'ls 'owning more than one car 'apiece, =
We` do not need d'art-"l,ining .residentia:l • � streets because of permitting
lsmalles' than required:- lots:'for, h=igh density:bulildings ®._:'=
October 11, 1978
Kodiak Island Borough
Nanning and Zoning Commission
Kodiak, Alaska 99615
RE: Kodiak Elderly Housing Project Petition for
Rezoning and for Variances.
Dear Commission Member:
It has come to our attention that attorneys for the Sunset
Development Company, the partnership which is building the Kodiak
Elderly Housing Project, are requesting that you rezone the site of that
project to "Business" and that you approve variances to the side yard,
lot area and parking space requirements of the Borough Land Use
Code. As explained below, I oppose the request made for rezoning and
variances. With the assistance of my attorneys, Dickson, Evans, Esch
& Papas, I am writing you to state my position in regard to the elderly
housing project and to request that you protect my property rights by
rejecting the requested changes and by ordering removal of the fourth
and fifth floors of the project.
I have lived at my present address on Erskine Avenue for fourteen
years. Like other residents in the neighborhood, one of the reasons
my husband and I chose this area for our home was the magnificent
scenic view of the harbor, with the Roman Orthodox Church in the
foreground. As you know, I ,am suing the Borough and the project
because the project destroys the scenic view, which contributes sub-
stantially to my enjoyment of my home and to my property value.
The essence of my position in the suit to protect my property is
that, as a result of a breach of the developers' 1974 promise to limit
the height of the buildings on the project site to one story above
Rezanof, and because of violation of numerous Borough Land Use rules,
Sunset Development Company has taken license to construct an illegal
building which destroys my view and damages the value of my prop-
erty. This effect is not limited to me alone. All the residents of my
neighborhood suffer similar deprivation.
At the outset, I hope you understand that I am not opposed to
provision of modern, safe housing for Kodiak's elderly citizens.
Further, I do not wish to suggest that Mr. Iani, Mr. Brechan and the
others interested in the project are bad characters. We should applaud
their entrepreneurial efforts to provide housing units for the elderly.
However, we must also insist that the investors abide by the land use
TO: Cornmissi--` Members
RE: Kodiak 1L—,rly Housing Project
DA: October 11, 1978
PA: 2
rules, which protect all the residents of Kodiak and which help mold
our growing community into the type of place which maximizes every-
one's enjoyment of our unique physical environment.
In the remainder of this letter, I would like to discuss the general
nature of Sunset Development Company's request, and then discuss the
technical requirements of granting rezoning and variance. Thank you
for your close attention to my views.
A. The General Nature of Sunset Development Company's
Request for Rezoning and Variances.
The essence of Sunset Development Company's request is that you
engage in a fiction by ignoring my valid questions as to the current
zoning status of the project site and clarify the land use classification
of the property in their favor. They request that you do this without
potential prejudice to them--Sunset Development Company does not wish
to waive any defenses against me in my suit. In other words, if you
reject the request, Sunset wishes to be able to litigate the question on
the current status of the land use classification of the housing project
site.
I object to this one-sided ,approach on the grounds of fundamental
fairness. Local ordinances do not empower you to exercise zoning
powers in the vacuum of legal fiction. If you do not grant Sunset's
request, then necessarily you must find that the height restrictions
promised in 1974 are binding, and that the building is in violation of
local land use regulations. Once you undertake the consideration for
rezoning and variances, you must be prepared to find facts against the
developers--otherwise your proceeding is inherently unfair. This
approach is not to say you must decide the issues raised in my pending
lawsuit. On the contrary, you must ignore that action and treat
Sunset's request anew as if there is no building underway, and as if
the site is zoned residential, with no variances granted.
As an alternative, the Commission can determine at the outset that
my objections to the zoning of the building are without merit and the
petition for rezoning and variances does not need your consideration. I
submit that this type of decision is more appropriate for a court of law.
Fairness suggests that your analysis begin anew, as if there were
no building underway; the law supports this approach. Title 17 of the
Kodiak Island Borough Code provides that building permits issued
contrary to requirements of land use regulation do not condone violation
of the Land Use Code (Section 17.75.060) and are null and void
(17.03.060(c)). Courts in other jurisdictions have held that when
developers commence construction in violation of zoning ordinances,
they run the extreme and very real risk of losing their investment.
See, e.g. , Board of Zoning of City of Whiting v. McFadden, 337 N.E.2d
576, 580 (Ind. App.1975). The burden of discovering and complying
with applicable land use regulations is on the developer. Otherwise, it
would permit illegal construction to serve as a basis for undermining
the rational planning process designed to protect the character of our
community.
TO: Commissf Members
RE: Kodiak L.r1y Housing Project
DA: October 11, 1978
PA: 3
Admittedly your task is difficult. It will be tough to ignore
the five -story presence near here. That much I have learned since the
framing of the fourth floor began in December, 1977.
Perhaps it will help you to accept this difficult conceptual ap-
proach, required by law, if you will understand that I relied on the
1974 promise to limit the height of the building. When construction
began, I had no reason to believe my view would be impaired. I did
not become aware of the problem until framing of the fourth floor began
and the height exceeded the earlier promised limitation of one story
above Rezanoff.
When the framing of the fourth floor began, I immediately notified
the Borough and the developers that I intended to protect my property
rights and my view. My requests for action were ignored and con-
struction continued to raise the fourth and fifth floors and a roof, all
at the developers' risk.
B. Variances - Lot Area
I do not ask you to deny Sunset's request altogether. .I only ask
that you limit the height of the project to one story above Rezanof, as
promised. This limit will probably allow three stories, and require the
removal of the fourth and fifth floors. This is a fair compromise,
accommodating both my rights and those of the developer. You have
the power to limit the height of the building. The developers' violation
of the Kodiak code and their continuation of construction after notice of
my objection squarely places the risk on them.
My lawsuit objects to the project violation of the side yard, lot
area and parking space requirements, not only because those violations
are flagrant, but also because those requirements relate to my basic
objection that the project is oversized and out of character with the
area. If the lot area requirements are adhered to, the project could
have only forty dwelling units. Removal of the excess fifteen units, if
from the northern building, would reduce its height from five stories to
three stories and thus protect my view. If Sunset Development .Com-
pany had adhered to the dictates of the Kodiak .land use regulations,
we probably would not have our current height problems.
In deciding whether or not to grant a lot area variance, you are
not permitted to consider the economic problems that Sunset Develop-
ment Company has created for itself. Because of the importance of
systematic land use planning, and because variances permit deviation
from that planning, variances usually are only rarely granted. You
should not permit HUD's conclusions as to the optimum size or the
availability of financing usurp your duty to abide by the land use rules
established for Kodiak and embodied in Title 17 of the Kodiak .Island
Borough Code.
Variances are to be granted only when unique physical conditions
affect an individual parcel unlike they affect other properties in the
immediate area. Obviously the slope conditions that Sunset complains of
affect other property in the area. Both residential and a variety of
7
TO: Commis.s ,Members
RE: Kodiak L r 1 y Housing Project
DA: October 11, 1978
PA: 4
types of commercial uses are feasible on the project site. It is not a
geographic hardship that limits the use of the property; rather, a
financial hardship in the form of the available financing and rent assist-
ance have led Sunset to conclude that it must violate the lot area re-
quirements. Unfortunately for Sunset, your power to grant a variance
is only based on geographic hardship and not on self-created financial
problems stemming from the nature of one project chosen out of a
tremendous range of possible uses of the land.
The Kodiak Island Borough code requires that your analysis of an
application for a variance determine whether unique geographic condi-
tions on the project site prohibit uses available in similar, adjacent land
use zones. If you agree that the re-zoning request in effect estab-
lishes a residential classification of the site, surely the variance must
be denied because similarly situated surrounding property is developed
residential, illustrating the availabilty of the project site for that type
of use. If you grant a business rezoning and then consider the vari-
ances, there are no similarly situated business zones to provide a basis
for comparison. In that case, you must ask whether the character of
the property prohibits all business uses. It is obvious that the geo-
graphic character of the property does not prohibit all business uses.
The hardships complained of are self-created by Sunset's choice of
project. Self-created hardship is not .a proper basis for granting a
variance: the application must be denied.
Section 17.66.140, Kodiak Island Borough Code provides that
variances shall be denied if they adversely affect property of persons
in vicinity of the applicant's property. As I previously explained,
permitting 15 extra dwelling units above the requirements of the lot
area restrictions effectively permits a violation of the 1974 height agree-
ment. If Sunset had abided by the lot area requirements, the project
would be smaller, the height lower and there would be no need to
impair my view. If you grant the variance, the adverse affect on my
neighborhood is apparent.
C. Variances - Parking
Because of the length of this letter, I will try to be brief in my
remarks about the parking space. If only 38% of elderly people have
cars (as stated by the developers), and if half of the 54 elderly units
are occupied by couples, then there will be approximately 80 elderly
residents in the project, 30 of whom (38% of 80) will own cars. Add in
one car for the manager and one service vehicle, and there is a mini-
mum requirement of 32 parking spaces, 6 more than provided. Of
course staff and visitors, whether family, preachers, or church groups,
will need parking spaces. The wisdom of requiring one parking space
per unit is apparent. Is it really in the interest of the elderly resi-
dents to create a situation where they may return from a trip, find no
parking space, and be forced to park on the street and walk back to
their homes? Is this same situation fair to visitors, to the project or to
neighboring residents?
Again, if the lot area requirements are adhered to, the project will
have only 40 units, and vacant space on the site will more nearly
accommodate the parking space requirements of the project.
TO: Commiss Members
RE: Kodiak h—srly Housing Project
DA: October. 11, 1978
PA: 5
D. Rezoning
In regard to the developers' request for rezoning, I would simply
like to mention that Alaska Statute 29.33.090 specifically provides you
with the power to agree by contract to limit uses of property so it is
compatible with surrounding uses. You can rezone and limit height as
before to one story above Rezanof. This is appropriate because of the
prior promise to limit the height and because Sunset's request neces-
sarily asks you to consider the merits afresh, despite urgings of Sunset
to the contrary. Also the fourth and fifth stories were built at the
developers' risk. It is within your power to order them removed.
While you are considering rezoning to business, I hope you will
address the language of Kodiak Island Borough Code Section 17.21.010,
which has been previously interpreted in the Borough to require busi-
ness uses on the ground floor of apartment houses in a business dis-
trict. There is no business usage in the subject apartment house.
Therefore, the building is illegal.
E. Conclusion
I am pleased that Sunset has chosen to defer to your judgment. I
feel as a commission you are well rounded and capable of developing a
fair solution which will protect the property interest on homes north of
the project and permit completion of about 40 units. Perhaps the best
solution would be to approve the rezoning with a height limitation and
deny the requested variances, thereby ensuring the project will be an
appropriate size, compatible with the historic development patterns of
Kodiak and our neighborhood.
I hope you will not be coerced by Sunset's thinly veiled threat of
a lawsuit contained in the last paragraph of Page 2 of the request for
rezoning and variances. Threat of legal action is never an appropriate
reason for rezoning or granting a variance. Your duty of neutrality in
weighing the merits of Sunset's request is not affected by your status
as defendant in my lawsuit.
I have not meant to tell you how to exercise your power. I only
wish to express my views as to what those powers are. Thank you for
your full attention to this letter. I look forward to presenting my
views further at the public hearing.
Sincerely,
n ayton
. i ks n
GAD/LD/lrh
HOYT M. COLE
ROBERT L. HARTIG
JAMES D. RHODES
JOHN K. NORMAN
ROBERT J. MAHONEY
BERNARD J. DOUGHERTY
MICHAEL W. SHARON
- -
G. RODNEY KLEEDEHN
J. MICHAEL ROBBINS
ROGER H. BEATY
STEPHEN D. ROUTH
WEV W. SHEA
EDGAR R. LOCKE
ANDREW M. HEMENWAY
OF COUNSEL:
G. KENT EDWARDS
COLE, HARTIG, RHODES, NORMAN & MAHONEY
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
SUITE 201
717 K STREET
ANCHORAGE, ALASKA 99501
(907) 274-3576
'October 11, 1978
Kodiak Island Borough
Planning & Zoning Commission
700 Upper Mill Bay Road
Kodiak, AK 99615
Re:
Our
Gentlemen:
KODIAK OFFICE:
202 CENTER AVE.. BOX 503
KODIAK, ALASKA 99615
(907) 486-3143
(907) 486-3144
MICHAEL W. SHARON
REPLY TO:
Anchorage
Kodiak Elderiy Housing Project
Petition for Clarification of
Zones and Variances, dated
August 21, 1978
File: ' 1993-2
Sunset Development Co. of Kodiak hereby waives its right. under
KIBC 17.66.100 to have a public hearing conducted, not later than
thirty days following the submission of its petition; and it
agrees that the public hearing may be held on October 18, 1978.
Thank you for your cooperation in this matter.
Very truly yours,
COLE, HARTIG, RHODES,
NORMAN & MAHONEY
By:
BJD:bad
Bernard J. Doherty
STATE OF ALASKA
:ss:
THIRD JUDICIAL DISTRICT )
say:
LOUIS P. IANI, being first duly sworn, depose and
THAT I am the managing partner of SUNSET DEVELOPMENT
CO. OF KODIAK, Petitioner in this matter before the Kodiak
Island Borough Planning & Zoning Commission;
THAT I have read the foregoing Petition dated
August 21, 1978, and know the contents thereof; and
THAT the same is true of my own knowledge except as
to matters therein stated on information or belief, and that
as to those matters I believe it to be true.-
SUBSCRIBED and SWORN TO before me this
October, 1978.
Notary Public in :A).714--fbt„Alaka*:::
My ,Commission Explres:
' .
ttoe
October 11, 1978
•
Z -78 -075: Requesting rezoning of Lot 39,. Biock 2, Erskine.Subdivision, USS 562
and Tract "A ", USS.2537.and USS 2537.6. (Sunset Development).
V -78 -076. A request for a variance to permit the continued construction and use
of.a building containing 55 dwelling units on -a site which will only
accommodate 40.7 units'. (Sunset Development)
A request for-variances to permit the continued construction and use of -
a building which encoraches into required yards. (Sunset Development),.
A request for variances to permit 'the continued use and construction of
a building which provides only 28 of the 55 offstreet.parking spaces
required by the Zoning Ordinance. (Sunset Development)
REQUEST.
Petitioners are requesting the rezoning of Lot 39,.Block 2, Erskine Sub-
division and Tract "A" USS 2537 and USS 562 -from R -3 and /or Business' to
Business. They are also requesting the following variances:
1) A variance from the mini„um.,lot area requirements of Section 17.21.040
to permit-the continued construction and use of a building which requires
a minimum area of 1,000 square feet per dwelling unit." Petitioners
requires a variance of 14,283 square feet in order to lawfully have a .
building containing, 55 dwelling units in a business zoning use district.
2) A variance'from the minimum-side yard requirements of Sections
17.18.040 and 17.21.050 to permit the continued construction and use
of a building which projects approximately .5.9 ±-feet into required
side yards of 61 ± feet. .
3) A variance from the minimum required offstreet parking requirement
of Section 17.57:010 to permit the continued construction and-use of a
building requiring 55 offstreet spaces where only 26 spaces have been
provided.
October 11, 1978
Z -78 -075 -
V -78 -076 - continued
Page 2
Attached for your information and review is' the .application submitted
by Sunset Development Company outling - the above described (paged)
request as understood by Staff. -
Staff, including the Borough Attorney, will be present during the
hearings and your deliberation on this request to assist you. in anyway
we can.
HOYT M. COLE
ROBERT L. HARTIG
JAMES D. RHODES
JOHN K. NORMAN
ROBERT J. MAHONEY
BERNARD J. DOUGHERTY
MICHAEL W. SHARON1
G. RODNEY KLEEDEHN
J. MICHAEL ROBBINS
ROGER H. BEATY
STEPHEN D. ROUTH
WEV W. SHEA
EDGAR R. LOCKE
ANDREW M. HEMENWAY
OF COUNSEL:
G. KENT EDWARDS
COLE, HARTIG, RHODES, NORMAN & MAHONEY
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
SUITE 201
717 K STREET
ANCHORAGE. ALASKA 99501
(907) 274-3576
October 9, 1978
George A. Dickson, Esq.
Dickson, Evans, Esch & Papas
880 H Street, Suite 200
Anchorage, AK 99501'
Dear George:
KODIAK OFFICE:
202 CENTER AVE.. BOX 503
KODIAK. ALASKA 99615
(907) 486-3143
(907) 486-3144
MICHAEL W. SHARON
•
REPLY TO:
Anchorage
Re: Dayton v. Kodiak Island
Borough etal.
Our. File 844-36
On October 6, 1978, I filed an answer in the above referenced case
on behalf of the City of Kodiak. Prior to filing that answer, I
discussed any possible conflict with the acting city manager in •
Kodiak and the City Council members at a work session and the
general reaction was that no conflict existed.
The possibility of any conflict was also discussed by me with my
colleague, Bernard Dougherty, and with Walt Ebell, one of our
law clerks. In those conversations we determined to request a
stipulation from you for an extension to answer until after
the hearing before the Planning & Zoning Commission and any
Board of Adjustment hearing. I did not receive an answer on
that request until today and, as a result, was not able to
communicate with our clients in Sunset prior to their departure
on a trip. Naturally, I will communicate with them immediately
upon their return to determine whether they feel any conflict
might exist.
As I indicated to Rob Shoaf, we do not see any conflict in the
interests of the two clients based on the theories currently being -
advocated. We are, however, somewhat sensitive to what might appear
to be a disadvantageous position for your client if 1 were to appear
George A. Dickson, Esq.
October 9, 1978
Page Two
before the City Council in the event a Board of Adjustment hearing
is called. Since I have worked closely with the members of the
Kodiak City Council, I feel that they might be persuaded by any
argument that I presented because of their confidence in my past
work. Therefore, if an appeal is taken to the City Council sitting
as a Board of Adjustment from any decision by the Planning & Zoning
Commission, that presentation would be made by either Mr. Dougherty
or Mr. Ebell. Neither of those members of our firm have any working
relationship with members of the City Council.
•
If you do feel that a conflict exists that might prevent us from
representing the City of Kodiak, I would appreciate some expression
of your thoughts regarding the nature of that conflict. Obviously
we will review any claim of conflict and if we determine that such
a conflict does exist or appears to exist, we will withdraw our
representation of the City of Kodiak and secure other counsel for
them.
Kindest regards.
Very truly yours,
COLE, HARTIG, RHODES,
NORMAN& MAHONEY
• Robert J. Mahone
RJM:bad
cc: City of Kodiak
HOYT M. COLE
ROBERT 1... HARTIG
JAMES D. RHODES
JOHN K. NORMAN '
ROBERT J. MAHONEY
BERNARD J. DOUGHERTY
MICHAEL W. SHARON
G. RODNEY KLEEDEHN
J. MICHAEL ROBBINS
ROGER H. BEATY
STEPHEN D. ROUTH
WEV W. SHEA
OF COUNSEL:
G. KENT EDWARDS
COLE, HARTIG, RHODES, NORMAN & MAHONEY
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
SUITE 201
717 K STREET
ANCHORAGES ALASKA 99501
(907) 274 -3576
August 21, 1978
Kodiak Island Borough
. Planning and Zoning Commission
Kodiak, AK 99615
Gentlemen:
KODIAK OFFICE:
KODIAK PLAZA, BOX 503
KODIAK, ALASKA 99615
(907) 486-3143
(907) 486 -3144
REPLY TO:
Anchorage
Re: Kodiak Elderly Housing Project
Petition for Clarification
of Zones and Variances
Our File No. 1993 -2
Our principals, Sunset Development Co. of Kodiak, have
endeavored for several years to construct a 55-unit elderly
housing project on property they own at Erskine Avenue and
Rezanof Drive, known as Lots.39, Block 2, Erskine Subdivi-
sion, U.S. Survey 562; and Tract "A ", U.S. Surveys 2537 -B
and 562 (formerly described as Lots 40, 41, 42, 43, 44 and
45, Block 2, Erskine Subdivision, U.S. Survey 562 and Lot
12, Block 3, Original Townsite of Kodiak, U.S. Survey 2537 -B).
A major portion of the property, Lots 40-45 and Lot 12, was
rezoned from R -3 to "commercial" by the Assembly in March,
1974. This action was taken before the elderly housing.
project was conceived and in anticipation of a project that
was later abandoned. The preamble of the ordinance contained
a stipulation that any structure would not extend more than
one story above Rezanof Drive. (Ordinance 74- 5 -0).
Discussions with the developer about the feasibility of an
elderly housing project first started in the fall of 1974
and finally during the spring of 1976 the concept began to
take shape. In May, 1976, it was learned that HUD funding
was available, if an application was submitted before the
end of the fiscal year. In order to comply with HD's
requirements, Lot 39 was rezoned from R -3 to business on
July 1, 1976.
T- '.`"='_ice -_i_Y.
Kodiak Island Borough
File No. 1993-2
August 21, 1978
Page 2
The developers then requested "exceptions" from the strict
application of the zoning ordinance because the exceptionally
narrow and sloping conditions of the property's terrain
created great practical difficulty in siting the proposed
structure. On August 10, 1976, the Planning and Zoning
Commission granted the requested "exceptions" for height and
side yard. Following that action, the city stated that the
project was in compliance with all applicable zoning require-
ments and restrictions, and issued a building permit.
Actual construction of the project began last fall.
Though a number of years have elapsed since the above events
took place and the project is now close to completion, a
Complaint was recently filed in Anchorage Superior Court
seeking to enjoin the project. The complainant alleged,
among other things, that: the rezoning of Lot 39 is void
because of failure to give adequate notice for the public
hearing; the Planning and Zoning Commission did not effect-
ively grant side yard or height variances on August 10,
1976; the structure exceeds the height restrictions for a
business district and a R-3 district; the structure exceeds
the height restriction contained in the 1974 ordinance; the
lot area is insufficient; and, the number of planned parking
spaces is inadequate. Sunset Development Co. and the Kodiak
Island Borough have answered the Complaint, raising numerous
defenses against the relief sought, and intend to fully
litigate the matter.
In an effort to prevent any unnecessary delay in the occupancy
of the project by Kodiak's elderlv who need housing, we are
petitioning the Planning and Zoning Commission and the
Kodiak Island Borough Assembly for clarification of the
project's current status. This petition is presented as a
means of removing any questions regarding the effect of
earlier Commission and Assembly actions or the legality of
the project. It is not to be construed as a waiver of any
defenses or causes of action now existing or hereafter
arising against any individual, co/poration, city or borough
regarding this project.
■
Kodiak Island Borough
File No. 1993 -2
August 21, 1978
Page 3
ZONING:
Sunset Development Co., as owner of the property known as
Lots 39, Block 2, Erskine Subdivision, U.S. Survey 562; and
Tract "A ", U.S. Surveys 2537 -B and 562, requests that the
Planning and Zoning Commission recommend to the Borough
Assembly that said property be zoned business with the use
restricted to the 55 -unit elderly housing project now being
constructed.
The following information is presented in support of the
foregoing request:
(1) The housing situation for the senior citizens
of Kodiak has been inadequate for some time. In 1974,.
as many as 100 units were considered necessary to meet
the community's requirements. The unavailability of
low income housing was considered particularly critical
as many elderly on fixed incomes were living in sub-
standard conditions.
The availability of housing has not improved
appreciably over the last four years. Yet, during the
same period, our population of senior citizens has
increased steadily, thereby, aggravating an already
serious condition.
The elderly housing project would help alleviate
the housing shortage of Kodiak's elderly and, in partic-
ular, low income elderly by (a) providing 55 housing
units for the elderly and (b) qualifying for section 8
rent subsistence funds.
(2) Housing constructed for occupancy by the
elderly should respond to the special needs of older
people. The project has been specifically designed to
accommodate elderly residents. For example, the build-
ing has incorporated the following features: an elevator
serves all floors; handrailings are present in the
hallways; the bathrooms are equipped with special
handholds; and, a meeting room with kitchen facilities
is available on the ground floor. Also, several units
have been designed for occupancy by the handicapped.
Kodiak Island Borough
File No. 1993-2
August 21, 1978
Page 4
(3) Traffic conditions on surrounding streets are
not expected to be noticeably affected by the project.
This is true primarily for two reasons. First, the
property's location close to the downtown district will
reduce the need for the occupants to own an automobile,
an expense that is burdensome to many elderly. Second,
the number of automobiles owned by the occupants of the
project is expected to be lower because characteristi-
cally senior citizens own fewer automobiles.
(4) The project's location and concentration of
elderly would facilitate the provision of emergency
services. It will also promote fire safety because the
buildings are constructed with modern materials and in
accordance with all applicable building codes. And, as
noted above, the building's special design features
make it safer for occupancy by the elderly.
(5) The elderly housing project would be compati-
ble with surrounding uses. It would neither disturb
the harmony of the neighborhood nor violate the integrity
of the district.
As discused, there is a clear need for additional
elderly housing in Kodiak. Construction of the project
would help the community meet its obligation to provide
for the welfare of its elderly and -would benefit the
community as a whole. Rezoning of this property would
constitute good zoning practice.
In suMmary, the clear existence of a public need for addi-
tional elderly housing in Kodiak, the building's special
design features for the elderly and the proposed site's
unique location in close proximity to the downtown business
district establish that the public necessity, convenience
and general welfare would best be served by enacting a new
ordinance zoning the above described property as business.
VARIANCES:
We also request the granting of variances or the clarifica-
tion of variances previously granted from the strict applica-
'
Kodiak Island Borough
File No. 1993-2
August 21, 1978
Page 5
/1.
tion of the following sections of the Kodiak Borough Zoning
Code: (1) §17.21.040, lot area, which requires 1,000 square
feet of area per dwelling unit; (2) §17.18.040 and §17.21.050,
yards; and, (3) §17.57.010, parking spaces, which requires
one parking space for each dwelling unit. The lot area
variance is requested to allow construction of 55 dwelling
units on a total land area of 40,717 square feet. The side
yard variance is requested for the west side of the building
only. The parking space variance is requested to limit the
number of parking spaces to 26 and is conditioned upon
construction of the planned mini-park.
The property is described as Lots 39, Block 2, Erskine
Subdivision, U.S. Survey 562; and Tract "A", U.S. Surveys
2537-B and 562.
The plot plans showing the location of all proposed buildings,
elevations of such buildings, and other data regarding the
slope and shape of the property will be submitted under
separate cover to the commission.
The requests for side yard and lot area variances will be
discussed together because the applicable conditions that
make the request necessary are similar. The property's H
physical characteristics have placed an extrodinary restric-
tion on building placement and elevation which, unless the
requested variances are granted, would deprive. the owners of
property rights and uses possessed by others in the-same
district. The architects have advised us that, the excep-
tionally narrow and sloping conditions of the terrain.have
created great practical difficulties in siting the proposed
structure. Highway construction on Rezanof Drive accentu-
ated an already difficult :terrain situation by creating a
downward slope condition of 25 feet in a horizontal distance
of 40 feet from curb to building face.
The intended development of the property as an elderly
housing project created additional circumstances which do
not generally apply to other properties in the same business
district. The construction of the project was dependent
upon obtaining HUD financing and qualifying for section 8
rental subsistence funds. Therefore, it was necessary that
Kodiak Island Borough
File No. 1993-2
August 21, 1978
Page 6
the project's design and size comply with the agency's
guidelines and directives.
To help decide how many units should be built, HUD conducted
an economic analysis of the project's financial feasibility
and a market survey of the community's need. Their studies
indicated that the optimum number of revenue producing units
was 54 for a total project of 55 units. Also, a project of
this size qualified for priority of section 8 rental subsis-
tence funds.
A review of the proposed site by HUD determined that a 55
unit project would have a land use intensity number of 5.6,
which was well within the agency's requirements. The land
use intensity number relates the number of living units by
floor area to a recommended amount of site area according to
location and the type and size of housing. The site's close
proximity to the downtown business district was also an
important factor in HUD's approval of the site for elderly
housing.
HUD found the proposed project to be in compliance with its
stringent requirements for elderly housing and approved
disbursement of construction financing. Thereafter, in
reliance on the assurances received from-the City and Borough
that all zoning requirements and restrictions were satisfied
and' believing in good faith that they had complied with all
zoning requirements and restrictions, Sunset Development Co.
began construction of the project and has now expended in
excess of $1,000,000. Obviously, such a scenario of events
occurs rarely and, therefore, are truly exceptional circum-
stances which do not apply generally to other properties in
the.same land district.
The strict application of the code's side yard restrictions
would cause practical difficulties in locating the buildings
on the property; and, the strict application of the code's
lot area requirements, necessitating the construction of a
smaller project, would present practical difficulties in
obtaining and retaining HUD financing for the project.
Finally, strict application of the code would result in
unnecessary financial hardship for the developers and would
probably prevent the completion of the project.
Kodiak Island Borough
File No. 1993-2
August 21, 1978
Page 7
Granting the side yard and lot area variances would not
result in material damage to other properties in the vicinity.
The planned height of the structure complies with the code's ,
restrictions for a business district and the project would
be compatible with surrounding uses.
Furthermore, the requested variances would neither be detri-
mental to the public health, safety or welfare, nor contrary
to the objectives of the comprehensive plan. In fact construc-
tion of the project would further those objectives.
Therefore, we are asking for variances from full side yard
requirements for the west gable end of the building and from
lot area requirements to allow construction of 55 dwelling
units on the property.
Regarding parking, the site plan now provides for the con-
struction of 26 parking spaces to serve the 55 unit complex.
HUD reviewed this proposal and approved the plan as provid-
ing adequate parking for an elderly housing project. HUD's
approval was based primarily on two factors: (1) the pro-
ject's close proximity to the downtown business district
which would reduce the need of owning an automobile and (2)
the reduced incidence of automobile ownership by elderly
people (a factor considered particularly applicable to
Kodiak because of the community's size and location). A
survey of persons interested in elderly housing conducted in
19.74 determined that only 38% owned automobiles.
Present plans call for construction of a mini-park on the
project site to the east of the planned parking' area. The
park would provide the elderly residents a readily access-
ible outdoor area and would be esthetically pleasing to the
surrounding neighborhood. However, if required, the area
could be paved and utilized as additional parking.
The granting of a parking variance would not conflict with
the comprehensive plan nor would it be detrimental to the
surrounding property, public health( safety or welfare.
Actually, the use of the land as a park would inure to the
benefit of the surrounding property owners and the community
in general. Therefore, it is requested that the project be
Kodiak Island Borough
File No. 1993-2
August 21, 1978
Page 8
granted a variance from providing more than the
spaces now planned.
Your cooperation and understanding in reviewing
tion is greatly appreciated.
Respectfully,
26 parking
this peti-
COLE, HARTIG, RHODES,
NORMAN & MAHONEY
By:
CWE:BJD:kjb
Bernard J. YOugherty
AFFIDAVIT
State of Alaska
)ss.
Third Judicial District )
I, Louis P. Iani, managing partner of Sunset Development Co. of
Kodiak, being first duly sworn depose and say:
Sunset Development Co. of Kodiak, involved in the F.H.A. project
#176-35012, Kodiak Elderly, is a limited partnership owned by
Fred C. Brechan at 24.75%, Ruth S. Brechan at 24.75%, Louis P. Tani
at 24.75% , Frances S. Iani at 24.75% and Paul Neal III at 1%.
Sunset Development Co. of Kodiak feels that there was and is a need
for Senior Citizen Housing. We, with the complete approval of the
Senior Citizens of Kodiak, on 4/15/76 received from Northwest Design
Associates, 839 W. Northern Lights Blvd, Anchorage, Ak, a design
plan, job #4144, design: Becker, Drawn: Becker, Dated 4/15/76.
This design plan showing elevations and set back from lot lines,
was on display at Planning'and Zoning meetings, Kodiak City Council
meetings, Kodiak Island Borough meetings, and numerous public hear-
ings called by these regulatory bodies, pertaining to this elderly
development which was finally approved with the issuance of use permit
dated 13 Aug 1976.
The need for Kodiak Senior Citizen Housing increases each year. We
have been waging an uphill battle to achieve this housing. We started
with normal bank financing, but the debit service was too high. Then
we turned to Farmer Home Administration and were led down a different
-2-
path with the same results. In February of 1976, with the en-
couragement of the Senior Citizens we went to the Department of
Housing and Urban Development Anchorage office, with our project.
Using their formula it would take a minimum of 55 units to make
this project economically feasible. The location of the land on
which this project is being built lends itself completely to what
our elderly would like and need. This project is being built
under section 221(d), National Housing Act. This is a Section 8
Rent Subsidy program. Even with the rent subsidy program for
the elderly, the project could not be built because of rising cost
of building. We approached Neal & Co., a contractor from Homer,
Alaska. He lowered his price to a break even situation in return
for an interest in the project.
Sunset Development Co. of Kodiak has invested in the project cash
and land value of $195,000.00, plus other supplimental agreements
to contractor of $52,000.00 as additional payment to build the build-
ing. Sunset Development Co. of Kodiak is responsible for all addi-
tional costs of the building above the contract price, which under
normal conditions could be a large sum. We are also obligated for
off -site costs pertaining to the moving of power lines, estimated
at $75,000.00 but could increase to over $100,000..00. We also at
our own expense have to do the paving of the parking area estimated
at $3.5,000.00.
Land Value $ 110,000.00 H.U.D. Approved
Cash 85,720.00 On Issuance of Advances`.
Cash 47,900.00 Letter of Credit.N.B.A,
Mortgage Funds
already advanced $ 657,638.29 Through 12/15/77 to Contracto
10% retainage to
contractor 39,581.00
100,000.00 Off-site Costs owed but
not paid
100,000.00 Construction from 12/15/77
to 1/15/78
$ 1,140,839.29
This figure is a true cost of actual monies in the project to this
date.
It would cost the contractor, Neal & Co. a minimum of $3,500.00
per day for a shuting down of the job. Reasoning, penalty clause
in construction contract of $862.20 per day, and most of Neal & Co.
personnel are from other areas (Homer mainly), loss of the good
personnel due to the factor of no work, and loss of credit rating
due to not paying of current bills, payment to Neal & Co. by H.U.D.
on percentage of completion, of project.
The effect of a shutdown of the Kodiak Elderly project, Sunset
Development Co. of Kodiak would not be able to continue with the
building. We are on a very strict budget as seen on the issuance
of advances and on FHA Form #2264. A work stoppage would in most
probability put the cost of the building way above what Sunset
Development Co. of Kodiak would be able to pay. This building is
being built on the factor that this project is 100% rent subsidized
program if the Section 8 funds are withdrawn any time prior to
final completion the project would not survive. We have the Section
8 funds now needed to make this project feasible. The cash loss to
-4-
c.
this project would be over one million dollars ($1,000,000.00).
STATE OF ALASKA
) ss.
THIRD JUDICIAL DISTRICT*) •
Louis P. ani
THIS IS TO CERTIFY, that before me, the undersigned, a Notary Public
in and for the State of Alaska, duly commissioned and sworn as such,
personally appeared LOUIS P, IANI, Managing Partner of Sunset Develop-
ment Co. of Kodiak, a limited partnership, to me known to be the
identical individual named in and who executed the above and foregoing
affidavit, and who acknowledged to me that he signed the same as his
free and voluntary act and deed.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal this llth day of January, 1978.
• ,
Notary P icbln and for Alaska
My commission expires:__
DAVID WOLF
RESIDENT PARTNER
LAW OFFICES OF
KEANE, HARPER, PEARLMAN AND COPELAND
909 WEST 9TH AVENUE
SUITE 140
ANCHORAGE,ALASKA 99501
TELEPHONE (907) 276-5152
28191B March 24, 1978
George. A. Dickson, Esq.
Dickson, Evans, Esch & Papas
880 "H" Street
Anchorage, Alaska 99501
Re: Kodiak Elderly Project
Dear Mr. Dickson:
OREGON OFFICE
3500 FIRST NATIONAL TOWER
PORTLAND,OREGON 97201
TELEPHONE (503) 224 -4100
J. DAVID BENNETT
MARK G. COPELAND*
CHARLES A. GALFORD
DAVID W. HARPER
GORDON H. KEANE
THOMAS M. LANDYE
DIARMUID F_O'SCANN LAIN
DONALD H. PEARLMAN
RANDALL L. DUNN
ROBERT B. HOPKINS
RICHARD L. SADLER
•ALSO ADMITTED IN ALASKA
We have reviewed and researched the issues raised by
your letter of January 20, 1978 submitted on behalf of your
client, Lorraine Dayton, regarding the Kodiak Elderly Project.
Although we are prepared to discuss the matter further with
you, our client, the Kodiak Island Borough, presently does
not anticipate taking any action in this matter as your
client did not timely exhaust her administrative remedies.
Sincerely yours,
KEANE, HARPER, PEARLMAN
and COPELAND
MGC /jlp
cc. Mr. Stewart Denslow, Manager,
Kodiak Island Borough
Mr. Harry Milligan, Director,
Planning & Zoning, Kodiak Island
Borough
MARK G. COPELAND'
DAVID WOLF
ALSO ADMITTED IN OREGON
LAW OFFICES OF
KEANE, HARPE- PEARLMAN AND COPELAND
n
rr: Tel �
t'^ ANC
EST 9T14 AVENUE
UITE 140
E,ALASKA 99501
�n TELEPHONE (907) 276 -5152
fa z4 19 February 23, 1978
Mr. George Dickson, Esq.
Dickson, Evans & Esch
Attorneys at Law
808 "H" Street
Suite 200
Anchorage, AK 99501
Dear Mr. Dickson:
OREGON OFFICE
3500 FIRST NATIONAL TOWER
PORTLAND, OREGON 97201
TELEPHONE (503) 324 -4100
J. DAVID BENNETT
CHARLES A.GALFORD
DAVID W. HARPER
GORDON H. KEANE
THOMAS M. LANDYE
DIARMUID F. O'SCANNLAIN
DONALD H. PEARLMAN
RANDALL L. DUNN
ROBERT B. HOPKINS
RICHARD L. SADLER
Re: Kodiak Elderly Project
Our firm recently was appointed attorneys for the Kodiak
Island Borough with regard to the request of Lorraine Dayton
for termination of work on the Kodiak Elderly Project building.
I will be out of town until approximately March 8, 1978 and
expect that shortly thereafter, our firm will be able to ad-
vise the Kodiak Island Borough as to those steps which should
be taken as a result of your letter. At such time, I will
again be in contact with you.
MGC /ps
cc: Stewart Denslow
Sincerely yours,
KEANE, HARPER, PEARLMAN & COPELAND
i!:/4*P17
MARK G. COPE *ND
HOYT M. COLE
ROBERT L. HARTIG
JAMES D. RHODES
JOHN K. NORMAN
ROBERT J. MAHONEY
BERNARD J. DOUGHERTY
MICHAEL W. SHARON
G. ROONEY KLEEDEHN
MICHAEL ROBBINS
ROGER H. BEATY
STEPHEN D. ROUTH
• WEV W. SHEA
OF COUNSEL:
G. KENT EDWARDS
)
COLE, neiRTIG, RHODES, NORMAN 84
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
SUITE 201
717 K STREET
ANCHORAGE, ALASKA 99501
(907) 274-3576
February 8, 1978
Harry Milligan, Director
Planning & Zoning Department
Kodiak Island Borough
Box 1246
Kodiak, AK 99615
Dear Mr. Milligan:
FEB 81
KODIAK OFFICE:
KODIAK PLAZA. BOX 503
KODIAK, ALASKA 99615
(907( 496-3143
(907) 486-3144
REPLY TO:
Anchorage
Re: Kodiak Elderly Project
Our File 1993-2
Our firm represents Sunset Development Co. of Kodiak, the
owner of the Kodiak Elderly Housing Project which is currently
under construction in the City of Kodiak. In that capacity, we-
received a courtesy photocopy of the letter dated January 20,
1978, from Mr. George A. Dickson to the Kodiak Island Borough,
requesting that you issue a. stop work order against the project
and commence action necessary to remove any portion of the
building that does not conform to the zoning code.
It is the purpose of this letter to respond to the various
allegations that have been made regarding the failure of the
project to comply with specified provisions of the planning and
zoning ordinances or other applicable statutes. It is our position
that the Kodiak Island Borough would not be authorized to-revoke
the building permit or take other action to prohibit continuance
of construction on the Kodiak Elderly project. To facilitate
your-review, I will conform the responses to the numbered objec-
tions in Mr. Dickson's letter.
1. Authorized Use Within Business District. It is the
contention of Lorraine Dayton, Mr. Dickson's client, that an
apartment house cannot be built in a business district except
in a business building. That allegation is contrary to the clear
and unambiguous language of the pertinent ordinance section.
Section 17.21.010 of the Code of Ordinances for the Kodiak Island
Borough enumerates the use's that are permitted within a business
zone. Subsection B of that provision includes as a permitted
Harry Milligan, Director
February 8, 1978
Page Two
use-"apartment houses arid one or more 'apartment units when
built in a business building." The term.'"apartment house"
is defined by Section 17.06.040 to be synonymous with "dwelling,
multiple-family" which-is defined to mean "any building containing .
three or more dwelling units. "Building" is -alsO defined, and
under §17.06.060 that.term means any structure built for the •
support, shelter or enclosure of persons, animals, chattels or
property of any kind. Since the definition of "apartment house"
is defined to include the structure in which the dwelling units
are enclosed, it appears that portion of the defined permitted
use can stand by itself and must be read in the disjunctive
rather than being included with apartment units that. may be
contained in a business building.
The above interpretation, which would permit apartment buildings.
separate and apart from.business buildings, is further supported
by a•common rule of statutory construction. That rule Is that
the intention of the municipal legislative body is to be deter-.
mined by considering the ordinance in its entirety, so as to give
effect to every part thereof, if possible.. "The court should not
hold any part to be meaningless or absurd unless the-language used.
will admit of no other conclusion." 62 CJS, Municipal Corporations
§442 h, p. 849. The interpretation proposed by Lorraine Dayton
which would construe "apartment houses" to mean the same thing
as "one or more apartment units" would make one or the other of -
those terms superfluous to the ordinance. A court will not
accept that type of construction, which would deprive portions of
•
the ordinance of any.meaning.
2. Building Height and Side Yard Restrictions. The
letter of July 28, 1976, from Louis P. •Iani to the Kodiak Island
Borough Planning & Zoning Commission requested "exceptions" to the
building height and side yard requirements in the business district.
rj However, the presentation by the property owners at the Planning &
Zoning Commission meeting of August 4, 1976, reflected a belief
by the Developer that the project would meet the applicable height
restrictions and that an exception would be necessary only for the
side yard restrictions. At that meeting discussions also took
place with regard to the requirements for vacating lot lines
and easements.
A review of the applicable' height restriction contained in
§17.21.030 in fact demonstrates that the building is in compliance.
That section states as follows:
Harry Milligan, Director
February 8, 1978
Page Three
The maximum building height shall be three
stories or 50 feet; provided, that a building
or structure hereafter erected, added to or
otherwise constructed may be increased in
height, provided the gross cubicle content
of such building or structure does not exceed
the sum total of the area of the lot upon .
which it.is erected multiplied by 50.
Building height is defined by §17.06.130 to mean the vertical
distance from the "grade" to the highest point of the roof and
"grade" is defined by §17.06.300 as follows:
'Grade (ground level)' means the average level
of the finished ground at the center of all
walls to a building. In case walls are
parallel to and within five feet of a public
sidewalk, the ground level shall be measured
at the sidewalk.
I have discussed this matter with Mr. John McCool of the architec-
tural firm of Northwest Design Associates, and he assured me that
the Kodiak Elderly Housing Project is within the building height
limitations outlined above-.
The next obvious question is whether the developer is restricted
by the rezoning ordinance to a building "not over one story
above Rezanoff Drive" as set forth in the letter from Norma Holt -
that was attached to Mr. Dickson's letter. In analyzing that
question I have reviewed the provisions of Ordinance 74-5-0 which
was adopted on April 7, 1974, to rezone Lots 40, 41, 42,,43, 44
and 45 of Block 2, Ei.-skine Subdivision and Lot 12, Block 1,
Kodiak Townsite, U.S. Survey 2537-B from R-3 to Commercial
(business). The operative provisions of that ordinance reclassi-
fies the property but do not establish a height restriction.
Rather, the limitation referred to by Mr. Dickson is found in
one of the "Whereas" clauses which states:
WHEREAS, the petition was considered and approved
by the Plart.ing & Zoning Commission on the 23rd
day of Febril, 1974, after a.public hearing was
held thereon and conaern was expressed regarding
the height above Resanoff, the builders were
agreeable to the stipulation that the building
above Rezanoff would be no more than one story;
and said body was recommended the reclassification
of said property to commercial and no other
objections were voiced at the public hearing; it
having been determined that the public necessity,
' Harry Milligan, Director
February 8, 1978
, Page Four
convenience and good zoning practice
required such reclassification.
As a general rule, language contained in prefatory clauses is not. .
a portion of the ordinance and may only be used for purposes of
interpreting the operative provisions of the ordinance.: A
statement of this general rule is found in 62 CJS, Municipal
Corporations §442 h, p. 849 where the author states:
Although a preamble is not an essential
part of an ordinance, reference thereto
may be.had in, aid of interpretation of
the ordinance for the purpose of clarify-
ing, or to assist in clarifying, ambiguities.
Thus, where the enacting portion of an
ordinance is ambiguous, resort may be had
to the preamble for the purpose of construing
the ordinance, but not otherwise. Where the
enacting portion is not ambiguous, its mean-
ing will not be controlled or effected by the
preamble. [Emphasis added.]
Obviously, the enacting portion of the ordinance in question which
ordains that the referenced property shall be reclassified to
commercial is not ambiguous.
If the ordinance in question would have established a separate
height restriction for the particular property in question that
was different from the height restriction generally imposed in
business districts, that ordinance would have been in violation
of AS29.33.090(a) relating to zoning regulations which provides
in part that:
1
Regulations.shall be uniform for each class
. or kind of building, structure; land or water
area within each district . . .
In support of that contention I would refer you to §5.22 of the
American Law of Zoning. In a discussion. of the applicability of
the "uniformity" requirement the author includes these observations:
Some, though not, many zoning ordinances have
been held invalid for failure to comply with
the requirement that regulation shall be
uniform for each class or kind of building
throughout any district. An ordinance which
imposes a 25-foot setback throughout a business
district, but which requires a 67-foot setback
in one block thereof, is invalid for lack of
Harry Milligan, Director
February 8, 1978
Page Five
uniformity. The same result was reached where
the ordinance was so worded so as to make possible
the requirements of a discriminatory setback line,
and where a setback ordinance was-applied to one
lot in an area where the requirement was not
observed by other property owners.
Applying this reasoning, an ordinance which imposed a special
height restriction on one lot or group of lots within a business
district would be invalid.
With regard to the side requirements, Mr. Dickson has
asserted that an "exception" rather than a "variance" was
requested and that an exception cannot vary the strict applica-
tion of the zoning requirements. It is my opinion, however,
that the request submitted by the developer can properly be
considered as a request for a variance which was duly considered
and granted after it was determined to meet all applicable
requirements. In that regard,-I would direct your attention to
the similarity of the language in the letter of Mr. Iani
requesting the "exception" and the language of §17.66.010,
the ordinance relating to variances and exceptions. The request
was for an exception "from the strict application of the zoning
ordinance" which is almost identical with the authorizing language
of the ordinance which provides that the Planning Commission
"may vary the strict application of these regulations." Further,
the letter justifies the request for an exception based upon
exceptionally narrow and sloping conditions of the terrain which
would create great practical difficulties in siting the proposed
structure. The letter asserts that because of highway construc-
tion accentuating the downward slope condition, an extraordinary
restriction on building placement and elevation would deprive
the owners of property rights and uses possessed by- others
in the same district. In comparing that language with 517.66.010
we find that the ordinance authorizes variances:
In the case of exceptionally irregular, narrow
or sloping lot or other exceptional physical
condition where strict application will result
in practical difficulty or unnecessary hardship
that would deprive the property concerned of
rights possessed by other properties in the
same district . . .
Obviously, the developer was not 'requesting an additional use in
the district and it was clear, therefore, that he was not seeking
an exception. While the request was mistakenly identified as
Harry Milligan, Director
February 8, 1978
Page Six
an exception, both the applicant and the commission utilized
the criteria applicable to a variance in evaluating and passing
upon that request. The misnomer is therefore of no substance
and would not, justify any action determining the variance to be
invalid.
If Lorraine Dayton was agrieved by the decision of the Planning
Commission granting a variance as to the setback and/or height
.restrictions, she is required by §17.66.180 to appeal that
0"141'
decision within ten days. Since she did not appeal the
decision, she has waived her right to appeal or contest the
";validity of that action..
ric '
3. Adequacy of Notice at Time of 1976 Rezoning. In
support of a contention that notice of an assembly meeting on
rezoning was not adequate, Mr. Dickson enclosed as Exhibit C a-
notice letter sent to property owners dated June 29 for a meeting
to be held on July 1st. Applying generally held beliefs regarding
delivery time for mail, the conclusion was reached that the
notice was inadequate. Initially, it should be noted that
Lorraine Dayton is not within 300 feet of the exterior boundary
of the parcel of land described and was not entitled to receive '
an individual notice of the time and place of the hearing. She
would not, therefore, have standing to raise this issue.
Of equal significance is the fact that §17.66.100 does not
establish a time limit within which the notices must be mailed.
It is my understanding, based upon conversations with individuals
in Kodiak that when mail is received in the post office it is
generally placed immediately into the boxes of the designated
recipients. Thus, a letter dated June 29th may well have been
placed in.the appropriate box and picked .up by.the intended
recipient on that same day. Since notice of the meeting was also
published', it would appear that reasonable notice of the meeting
was given to all interested parties pursuant to generally accepted
standards within the community of Kodiak.
4. Participation of Fred Brechan in Rezoning. It is the
contention of Mr.. Dickson that Fred Brechan participated in the
discussion and seconded the motion to approve for first reading
an ordinance rezoning property in,which he had an interest,. and . •
that therefore the ordinance is invalid. If it is assumed that
the facts as related by Mr. Dickson are correct, these circumstances
would not support his position that the ordinance would therefore
Harry Milligan, Director
February 8, 1978
Page Seven
be invalid. It should be noted that the conduct complained
of does not consist of voting at the first meeting. Similarily,
no improper conduct is alleged at the second meeting at which a
public hearing was held on the matter, the ordinance was discussed
by the assembly members and the assembly members voted to pass
the ordinance. Mr. Brechan's participation was therefore minimal
and the ordinance should not be invalidated based on that parti-
cipation.
This is particular true with regard to a zoning ordinance which
has first been recommended by the Planning & Zoning Commission.
Mr. Brechan was, as a member of the public and a person interested
in the rezoning authorized to participate fully in the proceedings
before the Planning & Zoning Commission. The recommendation by
that body was not based upon any of his actions as a public
official, and similarly, the vote of the assembly at both the
first and second readings of the ordinance did not depend in any
way on affirmative action by Mr. Brechan.
As a general matter, it would appear that Mr. Dickson is requesting
on behalf of Lorraine Dayton that some officer in the Kodiak
Island Borough review all of the actions of the planning commission
and the assembly with regard to this matter and determinine those
actions to be invalid, so that a building permit or other authori-
zation for construction could be terminated.
Obviously, the executive branch of the Borough does not possess
the authority to review the actions of the assembly and declare
those actions to be unlawful. Similarly, neither the assembly
nor the administration could declare the actions of the planning'
commission to be invalid. •It is therefore doubtful whether the
Borough is in a position to take the action requested by
Mr. Dickson in the absence of a court determination on one or
more of the issues raised in his letter, unless each of the
bodies has reviewed and reconsidered the actions previously
taken.
Sunset Development Co. of Kodiak has made substantial commitments
based upon the actions and representations by the Kodiak Planning
Commission, the Kodiak Island Borough Assembly and the Planning &
Zoning staff. Assurances have been given to the developer that •
the project was in full compliance with the applicable provisions —
of the zoning law. The Borough should, therefore, be estopped
from reviewing and rescinding any of the action necessary for
the continuance of the project, absent some misrepresentation
Harry Milligan, Director
February 8, 1978
Page Eight
or other fraudulent conduct on the part of Sunset Development
Co. of Kodiak. I would, therefore, request that the Borough
decline the request to issue a stop work order and further
refuse to initiate any action designed or intended to restrict
or impede the completion of construction of the Kodiak Elderly
Housing Project.
Kindest regards.
Very truly yours,
COLE, HARTIG, RHODES,
NORMAN & MAHONEY
By:
. Robert
RJM:bad
cc: George Dickson, Esq.
Mr. Louis Iani
KODIAK 1 LAN BOROUGH
January 25, 1978
Mr. John Slagel
P. O. Box 1246
CITY OF KODIAK
•Kodiak AK 99615
Dear John:
Telephones 486-5736 - 486-5737 — Box 1246
KODIAK, ALASKA 99615
The Kodiak Island Borough has received an inquiry concerning the Sunset
Development Corporation Senior Citizen's Construction Project. The
attorney making the inquiry has questioned several aspects of the project,
demanding all construction activity be stopped until his questions have
been resolved.
Before suggesting the City take such action, we would appreciate your
investigating the approved construction plans against the activities
of the contractor, Neal and Company, as now under way and copies of the
development plan approved by the P & Z Commission on file with this
department.
Youd cooperation and immediate attention to this matter will be appreciated
and we in turn will keep you informed of any new developments arising from
this situation.
Sincerely,
Harry ;■ W11igan,
Planning Director
HM:rc
cc P-& Z Case File
•
•
P. 0. Box 287
Kodiak, Alaska 99615
December 29, 1977
Sunset Development Corporation
P. O. Box 1275 •
Kodiak, Alaska 99615
RE: Senior Citizens Apartments
Dear Sirs:
On Monday, December 19th, I first became aware of the fact that you intend to construct
the Senior Citizens Apartments on the south side of Rezanof Drive to a height which
will very seriously impair the beautiful view which I have from my home located on
Erskine Drive approximately 300 feet northeast of the Senior Citizens Apartments.
After investigating the matter, I believe that your construction of the Senior Citizens
Apartments is in serious violation of the law. I believe that the zoning of the land
on which the apartments are being constructed is illegal, that the apartments are being
constructed to an illegal height, and that • the construction of the apartments might
very well violate certain deed restrictions which pertain to the properties in the area
where my home is located and the apartments are being constructed. Because of these
various illegalities and because the construction of the apartments will seriously
impair the view from my home and greatly reduce the value of my home, I intend to
institute legal proceedings to obtain a court order requiring you to stop the construc-
tion of the apartments and remove all or a substantial portion of what you have already
constructed. Regardless of what it costs me in attorney's fees and court costs I will
pursue these court proceedings to the extent necessary to preserve my view and the
value of my home. Further, I suspect that several of my neighbors will join with me
in taking the necessary legal action, since their views are being seriously impaired
and the value of their homes substantially reduced.
Accordingly, I wish to put you on formal notice at this time that if you continue with
the construction of the Senior Citizens Apartments you do so at your own risk. If,
despite this notice, you continue with the construction of the Senior Citizens Apart-
ments and I succeed in the legal proceedings which I am planning, your financial losses
would be very great. Please understand, I do not wish to cause you any financial
losses; I wish only to preserve my own very valuable-property rights.
Sincerely yours,
Lorraine T. Dayton
t."
0.„„.
-.Uodiak island Borough
- Box
1246
-Kodiak, Alask 99615
- • ..
•
•
January 20, 1978
Kodiak Elderly.Project
1 represent Lorraine Dayton, whose residence is on
Block 6 Erskine Subdivision.
Ms. Dayton objicts to the Kodiak Elderly Project
-bUilding, which she believes to be illegal for reasons given
below..
By this letter we are formally requesting you to
proceed under 17.75.040 of your zoning code.to do the fol-
loyingt
a) Issue a stop work order on the building-
immediately.
•.■
b) Coience uch action as necessary to remove
so much of therbuilding as does not conform to the
zoning code. Considering the violations as they
exit at the present time, this would be the total
building.
The reasons for our request are as follows:
1) No part of the building is intended for a
°business use.:
Section 17.21.010 of your zoning cede anu-
merates the permitted uses in the business.dis-
trict. Subsection "B" permits "Apartment houses
and one or more. apartment units when built in a
business building°. Thera setils to be no question
but that the building is an apartment house within
the meaning of,the code. An Apartment house in a
business building has previously .been interpreted
in the Boroughto require business usage on the
ground floor. _There is no business usage what-
soever in the subject apartment house; Therefore •
the building is illegal .
TO I Kodiak 'sleaze!. Borough
e:eeeeRE: Kodiak Elderly Project
January 20, 1978
PA I 2
2) The building violates the height (17.21.030)
and side yard. (17.21.050) restrictioe of the
zoning code.
attach, Eshibit "A", a letter to the
Borough ,from the Developer. In that letter the
Developer requests an exception to the zoning.
code. Apparently neither the Developer nor .the
Borough taffeunderstood that an "exception° was
an inappropriate request. To gain the end that
the Developer wanted0 a "variance". was needed. An
exception addresses 'uses", a variance addresses
"aree" i.e. things like setbacks and height.
Since no variance was granted the building must
either be de ..to comply or be removed.
I would note that if the Developer had ap-
plied for a variance it would have been very
difficult for him to show that a."height' variance
would not result in.material damage or prejudice
to other properties in the vicinity". This show-
ing must be made according to 17.66.090 B (3).
The uphill neighbors have expreseed content
trepidation that a building-would rise above
Rezonof Drive and obliterate their view of the
Orthodox Roman ,Church and the meter. In.faret the
Borough iteelf.xecognized this problem.during a.
rezoning of the subject property in.1974. I am
.enclosing0 as Exhibit "B",.a letter written by the
Borough to an.absentee neighbor who could not .
attend the zoning hearing. The.letter states that
Borough officials restricted the Developer "not to
build over one ,story above.Rezonof,Drive".. After
such reassurances by the Borough. it seems ,poor
showing for the to turn around and grant illegal
building permits which allow the very evil they
pledged themselves to prevent.
3) Inadequate notice was given at the time of
the 1976 rezoning.
1 enclose ,as Exhibit "C" a Notice Letter sent
to property owner. The letter is .dated June 29th
• for a meeting to be held July lat. The meeting
was to be held .only two days after the letter wee
written! Thie,is inadequate notice by any stae-
dard.
If the mails in Kodiak are anything like
those in the rest of the United States, the
. meeting would be over by the time the notice is-
received. Thia clearly doe not comply withithe
requirements of 17.72.070 and 17.66.100. _
i6
t Kodiak Elderly Project
January 20, 1978
4) Fired Brechan's participation in the .1974
rezoning of his own property invalidates the
$ rezoning., .
In 1974 Prod Brechan was a member of the
Borough Assembly. At the first meeting (Feb'. 7th)
of the zoning ordinance which wouldxszone his '
property from,residential to businesso he parti-
cipated.in the,discusSion and seconded the notion
to approve the .first reading and forw,rded the
matter for public hearing. He did not vote on the
motion. Clear ,case law requires an assemblyman .in
such a po ition. to not participate in the matter
at all ac an bl • He,couldf of,course,
, prticipat8 a rnbr of the public. or as owner
of the property.
• •
In conclusion, would like to point out that the
:= 'above irregularities were discovered by onlj cursory
- examination of the Borough records pertaining to the subject
property. I an certain that a close examination would
reveal others.
I -would further note that 17.03..060(0. provides
' that .°A.nv permit issued in.conflict with,this title shall be
null and void" and 17.75..060 reads,.°2he.issuance
fi.ng, of a building permit_or approval of.Plansoor.specifi-
. op.tions,under the uthority of the building code shall not
• be deemed or construed th be a permit .for or an approval of
- any violation of any of.the.provisions of ,this title or .any
amendment thereto. No permit presuming to give authority to
.violate or cancel any of,the.provisions,of this.title shall
be-valid except as insofar as the ,work or use which .is
:authorized is lawful and,permitted.. _ .
, We request prompt action .on ,the contents of this
,..,• , •
letter.
• - •
•
'Very truly yours,
GEORGE A. DICKSON
'cc: ..Bob Mahoney c/o Bernard Dougherty
Lorraine Dayton
:Milt Souter
GAD:jmh
•
July 28, 1976
Kodiak Island Borough
Planning & Zoning Commission
Kodiak, Alaska 99615
Re: Request for Exception
Gentlemen:
Acting on behalf of Sunset Development Corporation, owners of property at
Erskine Avenue and Rezanof Drive, otherwise known as U. S. Survey 2537B, •
Tract A and Lot 39, Erskine Subdivision, U. S. Survey 562, I do hereby request
the dranting of an exception from the strict application of the zoning ordinance
under terms of Section 17.66.010 of said Ordinance.
Sunset Development Corporation proposes to construct 55 units of elderly housing
on the commercially zoned property and have been advised by our architects •
that the exceptionally narrow and sloping conditions of the terrain have created
great practical difficulties in siting the proposed structure. Recent highway con-
struction on Rezanof Drive have accentuated an already difficult terrain situation
by creating a downward slope condition of 25 feet in a horizontal distance of 40
feet from curb to building face. This condition has placed an extraordinary re-
striction on building placement and elevation which would deprive us of property
rights and uses possessed by others in the same district.
We therefore request this granting off-ft
;..
intOrpreta ion of
Sectiorigr 01,674hapter 17.210104:44,„
We ask that the building height be measured fFiim mean pps n rat hari
at the footing level below grade. Such an exception would provide a building
height t that was only twenty-two feet above grade on Rezanof Drive_ and allow .a
more attractive architectural profile. ?M8150:27,42Zve are .
el54141 - e7strp . lant,117Sif,(1P r.A ,
4 \- ' 'OA:* — p e
respetctin -"'Siat yar are hal norrillily .requir,' • an tna business
... . - „
zone excep ordering a residential district. Slope conditions being as
described in the previous section would deprive us from use of the property as
enjoyed by other property owners in the same district if strict interpretations
are applied. Therefore, we are asking for an exception from full side yard
, .
requirements for the west gable end of the building only.
Your cooperation and understanding in the granting of these exceptions will
enable us to meet the final submittal requirements for projectconstruction.
Respectful!
Louis P. lani
for: Sunset Development Corporation
.17,74-17,17,'-'7.7i.W1.1;773;T,71N:RMItc;;D.,*,1M.RA5.,t0,*41.,'
tanda I 1
2050 Freemont
South Pasadena, California 91030
Re:
March 22, 1974
-v, •
Rezoning of Lots 40-45 Block 2, Erskine Subdivision 6
Lot 12, Block 1, Kodiak Townslte
ear Mr.' hndail :
The above referenced lots were rezoned from R-3 to
usIness. They were also vacated and replatted Into one
arcel for proper development.
The purpose of the above Is so that the owners
n put an apartment complexon the lot without viola ng
.,• the building regulations. We did however, restrict
not to build over one story above Rezanof Drive.
• They are proposing a total of Twenty-four units within
four buildings.
If you have any further questions, please do not
hesitate ot contact this office. The reason for the late answerIng
Is that we have been in the process of moving and haven't
mpletely settled yet.
NLH/dt
Very truly ''3••;
Norma L. Holt,
Borough Clerk
•
• -.,,•-•1:,•,t,,tP•yf,g-A,..
amaamownorwawnwomesommu
IA ISLA
June 29, 1976
UG
Telephones 5736 - 486-5737 —.Bing 1246
ODIAK, ALASKA 0615
THIS IS TO NOTIFY YOU THAT A PUBLIC HEARING WILL BE HELD BY THE
.1, •
KODIAK ISLAND BOROUGH ASSEMBLY AS SPECIFICALLY DEFINED AS
FOLLOWS:
Second Reading Public Hearing Ordinance 76-17-0 - Expaac
business district to include Lots 23, 24, 26 and 39, Block 2,
Erskine Subdivision, Lots 8, 9, 10, 10A, 11 & 11B, Block 3,
Kodiak Townsite and Lots 1, 2A and 3, Block 17, New Kodiak
Subdivision to allow construction of Kodiak Elderly Project and
future expansion of downtown business district. (This includes
the area of the Community Baptist Church and the Department of
Fish and Game)
You are being notified because you are either the property owner Othe above
referenced lots, or a property owner living within 300 feet of the above men-
tioned lots.
You Inlay voice your opinion at the time of the Public Hearing, or a written
opinion that can be read into the minutes of the Public Hearing, i you cannot.
attend
KODIAK ISLAND BOROUGH
. .
PUBLIC HEARING TO BE HELD IN THE MEETING ROOM OF THE KODIAK ISLAND
,•
BOROUGH OFFICE BUILDING ON JULY 1, 1976, Thursday, at 7: 30,p.on. "
.„.
P. O. Box 287
Kodiak, Alaska 99615
December 29, 1977
Sunset. Development Corporation
P. O. Box 1275
Kodiak, Alaska 99615
RE: Senior Citizens Apartments
Dear Sirs:
On Monday, December 19th, I first became aware of the fact that you intend to construct.
the Senior Citizens Apartments on the south side of Rezanof Drive to a height which
will very seriously impair the beautiful view which I have from my home located on
Erskine Drive approximately 300 feet northeast of the Senior Citizens Apartments.
After investigating the matter, I believe that your construction of the Senior Citizens
Apartments is in serious violation of the law. I believe that the zoning of the land
on which the apartments are being constructed is illegal, that the apartments are being
constructed to an illegal height, and that the construction of the apartments might
very well violate certain deed restrictions which pertain to the properties in the area
where my home is located and the apartments are being constructed. Because of these
various illegalities and because the construction of the apartments will seriously
impair the view .from my home and greatly reduce the value of my home, I intend to
institute legal proceedings to obtain a court order requiring you to stop the construc-
tion of the apartments and remove all or a substantial portion of what you have already
constructed. Regardless of what it costs me in attorney's fees and court costs I will
pursue these court proceedings to the extent necessary to preserve my view and the
value of my home. Further, I suspect that several of my neighbors will join with me
in taking the necessary legal action, since their views are being seriously impaired
and the value of their homes substantially reduced.
Accordingly, I wish to put you on formal notice at this time that if you continue with
the construction of the Senior Citizens Apartments you do so at your own risk. If,
despite this notice, you continue with the construction of the Senior Citizens Apart-
ments and I succeed in the legal proceedings which I am planning, your financial losses
would be very great. Please understand, I do not wish to cause you any financial
losses; I wish only to preserve my own very valuable.property rights.
Sincerely yours,
Lorraine T. Dayton
K
MAK _SLAM
B ROUGH
September 2, 1977
Mr. Fred Brechan
Sunset Development Corp.
P.O. Box 1275
Kodiak,,Alaska 99615
Dear Mr. Brechan:
Telephones 486-5736 - 486-5737 — Box 1246
KODIAK, ALASKA 99615
On Friday, September 2, 1977, the Kodiak Island Borough Assembly approved
the'replat of previously vacated utility easements within the limits of
your proposed elderly housing development.
This action by the Assembly constitutes the last approval from the Borough
necessary preparatory to construction.
If this department can assist you further during the course of construction,
please advise.
Sincerely,
Harry Millig ,
Planning Director
EM:ck10(
"21011=*-
Applicant to fill in between heavy lines.
OF OCCUPANCY
tiL/ILD'NG AEJE.PESS
Erskine
LEALITY
NEAREST CROSS ST.
e.,Rezanof
NEW
ALTERATION
AD IT ION
CLASS OF WORK
.A.
USE OF BUILDING }Tom
LMOLISH
REPAI R
mOvE
cc
SIZE O BUILDIN
I ...AVE
Sunset Dev. Company k
F
N0FR0OMS
31 1 mA,L ADDRESS Box
1275 NO. OF FLOORS
3 I Env
6-3215
TEL. NO.
Kodiak
1 NAmE r
ip
ArICHITCCT
. • ADDRESS
• ,
Z
239 W._ No T.i rih-
o fccp,
.
z Anchoraae, AK
39J3z1 HEIGHT 4 9 1
60
NO. OF BUILDINGS
BUILDING PERMIT NO.
LI
VALUATION
$1,274,136
DATE ISSUED
3/30177
DG. FEE
PLAN CHK. 'EL
TOTAL
sicTn_
NO. OF BUILDINGS NOW ON LOT
BUILDING
PLUMBING
ELECTRIC
0
NO. OF FA LE
FOUNDATION
ROUGH
ROUGH
SIZE OF LOT
0,7174
R11.(56E OF BLDG. NOW ON LOT
FRAME
SEPTIC TANK
FIMSH
Reside ace
PLASTER •
SEWER
DOURES
SPECIFICATIONS
FLUES
OAS
07ORS
sTATL LicENsL Na
351A-A
FOUNDATION
FINAL
IWSH
FINAL
NAWE
rnTin711-1S.7
ADDRESS
a
-
z Homer, Alaska
• STATE LICENSE NO
76-77-1656
z SotiD,V,sION
c
skirie Subdivision
0,74i
u . ..OT NO, UL.
• •
39
2
DO NOT WRITE BELOW THIS LINE
MATERIAL
WIDTH or TOP
WIDTH OF ROTTOM
P 1N GROUN
R W. PLATE (SILL)
GIRDERS
JOiST RI. FL.
JOIST 2n1 FL,
JOIST CEILING
EXTERIOR STUDS
INTERIOR STUDS
ROOF RAFTERS
BEARING WALLS
EXTE.RIOR.
SIZE
SPA.•
Tract A, USS 2537-13&562
'rpe of Construction
Is.
III, IV, V, VI .
Type V-1
21dg."13" Type V -Hr.
2. Occupancy Group A, B, C, D, E,
F, G, H,:I, J Div. 1, 2, 3, 4,
- -3. Fire Zone 1/2.13 4
COVERING
XTEFOOR WALLS
ROOF
INTERIOR WALLS HC HOOF NG
FLUES
FIREPLACE FL, FURNACE
KITCHEN WATER E ATF.R
FURNAC
GAS 0
I hereby acknowledge that I have read
this application and state that the
above is correct and agree to comply
with all City Ordinances and State
Laws regulating build,ing coo,truotion.
Aoolicant
Buildings now on Lot will be removed by
owners. Building Plans on file this of
-u
0
t 1
:e.
PLOT PLAN
3N11 J,12d3dO8d
w
w
STF7CE
PLANNING & ZONING INFO.
ZONING DISTRICT
TYPE OF OCCUPANCY
NUMBER OF STORIES TOTAL HT.
AREA OF LOT
F HONT YARD SETBACK FROM PROP. LINE
SIDE YARD SETBACK FROM PROP LINE
REAR YARD
Approved: CHIEF BUILDING OFFICAL Approved: ZONING ADMINISTRATOR
/. 1//./
Ima — rma. - - •
• KODIAK ISLAND
August130, 1977
Mr. John Slagle
Building Official
CITY OF KODIAK
P. O. Box 1397
Kodiak AK 99615
Dear Mr. Slagle: •
This department has had an opportunity to review the development plans
submitted by Sunset Development Corporation for elderly housing. Our
records indicate that on August 10, 1976, the Kodiak Island Borough
P & Z Commission granted an exception to Sunset Development Corporation
for an elderly housing project.
In our review we found the site plans for this project consistant with
the one previously approved. Therefore, this department has no object-
ion to the issuance of the necessary building permits from a planning
standpoint.
If you have any questions regarding this matter please advise.
Sincerely,
Harry Milligan,
Planning Direct()
HM:rc
Enclosure P & 7 Special Meeting August 10, 1976
cc Borough Manager
P 7 Commission
Borough Assembly
-Stinset Development Corporation
C
•..`...o.*•1 j _
' : ''.... . ..•, %./:,, l---- '-'-'/'''."'
-^r,,:-."•,." ' '''-.-';'''.."\—.1.**;*<- ---:"-:-''77'.-7-..'"- -'
.......:,..,„......., ____",....•
...... KODIAK
....4..1,
......
....... .
Sunset Develoment, Inc.
P. 0. Box 1275
Kodiak, Alaska 99615
PJAKET
n
Lnry
TXT'PEa PRO.ECTt117G-3!.
PHONE (907)486.3224 TELEX 25345
P.O. BOX 1397
KODIA■< ALASKA 99615
August 13, 1976
SUBJECT: Senior Citizens Home
U. S. S. 2537 B, Tract A
Erskine Subdivision, Lot 39, Block 2
Gentlemen:
A Use Permit is hereby granted to Sunset Development,
Incorporated for construction of a Senior Citizens Home
on the above indicated lots in the City of Kodiak, Alaska.
"-The proposed project is in full compliance with all ap-
plicable zoning requirements and restrictions. •
A Building Permit will be issued subject to approval
of plans by the State Fire Marshall and this office.
GB/lkg
••
Very truly yours,
Gordon Barnett
Building Inspector
•
[
PLANNING & ZONING COMMISSION SPECIAL MEETING, KODIAK ISLAND BOROUGH
August 10, 1976
CALL TO ORDER
The meeting was called to order by Acting Chairman Bill Williams at 2: 45 p,rn,
in the Borough Meeting Room.
11' ROLL CALL
Present: Donald Brenteson
Gene Erwin
Dan Ogg
Bi|| Williams
Absent: Dan Busch
Tom Hayden
Harold Heg(in
There were six people in the audience.
U| ITEM OF BUSINESS: Request for Exception; USS 2537 B, Tract A and Lot 39,
Erskine Subdivision, USS 562 (sunset Deve|op' eotCo.) as presented on the
agenda of P & Z Commission meeting of August 4, 1976.
Further consideration was given to a request for exception on behalf of Sunset
Development Corporation, owners of property known as USS 2537 A, Tract A
and Lot 39, Erskine Subdivision, USS 502.
During the regular Planning & Zoning meeting of August 4, 1976 certain technical
issues were raised with respect to the applicant's request. The Planning &
Zoning Commission further requested that the planning staff and the building
official clarify the technical issues prior to a decision by the Planning & Zoning
Commission. In pursuit of that objective the staff requested legal opinions of
counsel on the matter of building across lot lines and the owner's use of
negotiated easements. A copy of the opinion was presented to the members of
the Planning & Zoning Commission. Mr. Barnett provided interpretations of the
ordinance with respect to the building height and the fire safety.
With the technical issues clarified Acting Chairman Williams convened the meeting
to formal session. Mr. Erwin moved that the exception be granted for properties
otherwise known as USS 2537 B, Tract A and Lot 39, Erskine Subdivision,
USS 562. Mr. Ogg seconded. Question called. Motion passed by unanimous rolt
call vote.
- _
SUBMITTED:
Borough Secretary
APPROVED:
.Chairman
\
�..
°
July 28, 1976
Kodiak Istand Borough
Planning 6 Zoning Commission
Kodiak, Alaska 39615
Re: Request for Exception
Gentlemen:
Acting on behalf of Sunset Development Corporation, owners of property at
Erskine Avenue and Rezanof Drive, otherwise known as U. S. Survey 2537B,
Tract A and Lot 39, Erskine Subdivision, U. S. Survey 562' | do hereby request
the granting of an exception from the strict application of the zoning ordinance
under terms of Section 17.66.010 of said Ordinance.
Sunset Development Corporation proposes to construct 55 units of elderly housing
on the commercially zoned property and have been advised by our architects
that the exceptionally narrow and s/o' ing conditions of the terrain have created
great practical difficulties in siting the proposed structure. Recent highway con-
struction on F(ezanofDrive have accentuated an already difficult terrain situation
by creating a downward slope condition of 25 feet in a horizontal distance of 40
feet from curb to building face. This condition has placed an extraordinary re-
striodon on building placement and elevation which would deprive us of property
rights and uses possessed by others in the same district.
We therefore request this granting of an exception ofthe strict interpretation of
Section 17,21.030 of Chapter 17.21 respecting building halghti—of thr6e stories':
We ask that the building height be measured from mean siope position rather than
at the footing level below grade. Such an exception wouldprovide a building
height that was only twenty-two feet above grade on Rezanof Drive and allow a
more attractive architectural profile. Further, We esti tJnq' •
of an 'exception of the strict interpretatlon of Section 17;21.:850\ofChapter 17'21 .
respecting side yards. Side yards a e not normally req ir'd in the business
zone except when bordering a residential district. Slope conditions being as
described in the previous section would deprive us from use of the property as
enjoyed by r1her property owners in the same district if strict interpretations
are applied.' 'i-hcrefore' we are asking for an exception from full side.yard
requirements for the west gable end of the building only.
Your cooperation and understanding in the granting of these exceptions will
enable us to meet the final subnnitta| requirements for project construction.
Respectful!
.e�
~_^
Louis P. |ani .�
[o[: Sunset Developrnent Corporation
July 6, 1976
Sunset Development Company
Box 1275
Kodiak, Ak., 99615
Dear Sirs:
This is to advise that the Assembly at the regular
meeting of July 1st, 1676, passed Ordinance Number
7617 -0,
Effective immediately_Lot 39, Block 2, Erskine Sub-
division has been reclassified to BUSINESS to
coincide with the other lots proposed for the 55 unit
housing for the elderly.
Should you have any questions or need additional
assistance pleaee do not hesitate to contact this
iffice.
Sincerely,
Robert B. Craig
Borough !Mayor
June 22, 1976
Mr.-Raymond W. Estess
State-Federal Coordinator
:Policy Development & Planning
Pouch AD
Juneau, Ak., 99811
Subject:, Kodiak Elderly
State I.D. No. 76060904
Dear Mr. Estess:
This pocuject was reviewed by the Assembly and the Borough
Administration. Although the Kodiak Island Borough,does
not have housing authority and can only regulate land use
through the Planning Commission, the Assembly members
expressed the feeling that this was a much needed project.
The Assembly was in full agreement with the concept this
housing project encompasses and favors strongly the
building of this povject.
Sincerely,
Robert B. Craig
Borough Mayor
CO 'AK ISLAND BOROUGH
Telephones' 486-5736 - 486-5737 — I3ox 1246
KODIAK, ALASKA 99615
May 2p, 1976
Mr. Lou Iani
Box 1275
Kodiak, Ak., 99615
Re: Tract A, U. S. Survey 2537-B & U. S. Survey 562
Dear Mr. Iani:
This is to certify that the above-referenced land is
currently zoned "Commercial" and such zoning was
effective March 7, 1974, as passed by Ordinance No.
74-5-0.
A cozy of the plat is enclosed for your information
'
and files..
Sincerely,
Norma L. Holt
Borough Clerk
• KODIAK ISLAND BQROUGH ASSEMBLY MEETING PAGE 3
MARCH 7, 1974
(Public Hearings "A" continued)
Mr. Futp further mentioned that some Senior Citizens do not want-to be
shoved out to the hospital. Mrs. Saupe stated that the extended care unit
is for people who have a physical condition who need professional care.
Mr. Murray explained the difference between an extended care unit and
a Pioneer's home. Sister Claire stated that within two years, they would
probably have the twenty bed unit filled. Mrs. Strigga stated that she
feels there is a need for an extended care unit. Mr. Powell closed
the public hearing and reconvened the regular meeting. Mrs. Holt stated
that she did not want to bid for the architect if they were not going to expend
money. Mrs. Wallin moved that her motion be withdrawn with concurrence
of the second. It was noted that this project was staled in 1972. The
question is expenditure of local funds along with thetate. Mr. Schneider
stated-that•the building costs two years ago would be $220,000.00, just for the
building alone. Mrs. Wallin4, would like the Kodiak Island Borough-to advertize
for an architect to do a cost analysis and work up the plans. Mr. Nelson
seconded the motion. Mr. Wood suggested that we should renegotiate a contract
with the hospital. Mr. Nelson would like to amend the motion made by
Mrs. Wallin, to amendiWork up the plans" , seconded by Mrs. Wallin.
Motion passed by unanimous roll call vote. Mr. Nelson moved we direct
the Borough Chairman to re-negotiate the contract with the Kodiak Island
Hospital. Seconded by Mrs. Wallin. Motion passed by unanimous roll call '
vote. Mr. Nelson moved that the Borough Chairman investigate the projected
daily operational expenses and also to determine the potential income for the
proposed unit. Seconded by Mrs. Wallin. Motion passed by unanimous roll
call vote.
B. Second Reading and Public Hearing on Ordinance 74-3-0 - 1973/74 Budget
Revl sion - Mr. Nelson moved that we adopt Ordinance 74-3-0. Seconded •
by Mrs. Wallin. Mr. Powell closed the regular meeting and opened the public
hearing. -There being no comments, Mr. Powell closed the public hearing
and reconvened the regular meeting. Motion passed by unanimous roll call
vote.
C. Second Reading and Public Hearing on Ordinance 74-4-0 - Rezoning of
Lots 48, 49, and 50, Block 19, Kodiak Townsite from R-3 to Business - (Welborn pit
Mr. Nelson moved that we adopt Ordinance 74-4-0. Seconded by Mrs.
Wallin. Mr. Powell closed the regular meeting and opened the public hearing.
There being no comments, he closed the public hearing and reconvened the
regular meeting. Motion passed by unanimous roll call vote.
tt
D. Second Reading and Public Hearing on Ordinance 74-5-0 - Rezoning of
Lots 40-45, Block 2, Erskine Subdivision and Lot 12, Block 1, Kodiak
Townsite, U. S. Survey 2537-B from R.,i3 to Business - Mr. Nelson moved
for adoption of Ordinance 74-5-0. Seconded by Mrs. Wallin. Mr. Powell
closed the regular meeting ancLopened-the,public hearing. Mr. Fisk asked
where Lot 12 was? I-C:CZi-;:e.C.; Oil tit •* I.: new S bte- z
It was, nested that Lot 12, was located above the lots where the stated building
was to be. Mr. Powell closed the public hearing and reconvened the regular
meeting.Motion passed by unanimous roll call vote.
VII OLD BUSINESS
A. Memo from Borough Clerk on Kenneth Beemer Lot - Mrs. Holt read the
Memo stating that Mr. Beemer came in and picked up a building permit
and fine was paid due to late filing. Mr. Powell notedtliat it appeared the
Beemer case was closed.
B. Opinion from Borough Attorney on Paving of Cutoff Road - The Bcroyah
Attorney's opinion is that the Kodiak Borough could not legally allocate funds
for this paving. Mr. Nelson asked that we send a copy of this letter to the city.
UNITED STATES OF AMERICA
SS:
State of Alaska
NOTICE OF
• PUBLIC HEARING
NOTICE IS HEREBY
EN THAT THE KODIAK
ISLAND BOROUGH AS-
SEMBLY WILL HOLD A
PUBLIC HEARING ON
MARCH 7, 1974, AT 7::;0
P.M. IN THE COURTROOM
• OF THE STATE OFFICE
ICE
. BUILDING, KODIAK AL1:E-
KA, ON THE FOLLO Viii: G
. ORDINANCES:
Approval of Expenditure
of funds for Extended
Care Unit for Hospital
Ordinance 74 -3 -0- 1973-
74 Budget Revision
Ordinance 74 -4 -0 - Re-
, zoning Lots 48, 49. and '
50, Block 19, Kodiak
Townsite - Russell Wel-
born from R -3 to Busi-
ness . (located along
Town-Base Road.)
Ordinance 74 -5 -0 - ::7.e-
zoning of Lots 40 -45,
'lock 2, Erskine Subdivi-
sion. and Lot 12, Block 1,
Kodiak Townsite from
R -3 to Business (Proper-
ty located behind Mor-
tuary butting Rezanof)
ALL INTERESTHD PAR-
TIES SHALL HAVE THE OP-
PORTUNITY TO BE 1Td! A ;,D
AT TILE PUBLIC "TEARING
AFTER WHICH THE KODI-
AK ISLAND BOROUGH .AS-
SEMBLY MAY PASS C;4,
DENY THE ABOVE RE-
QUEST WITH OR WITHOUT
AMENDMENTS.
KODIAK ISLAND
BOROUGH
NORMA L. HOLT
BOROUGH CLERK
Publish: Feb. 28, 1974
agbllbssEaera l nclva2
I, S. Wayne Kotula, being first duly sworn,
depose and say: I am editor and publisher
of the Kodiak MIRROR, a daily newspaper
published at Kodiak, Third Judicial, Divi-
sion, State of Alaska, and that the annexed
printed notice was published in said news-
paper in issues of the following dates:
l
S. Wayne Kotula
SUBSCRIBED and SWORN to before me
this
4t_f1a3„.I...f-". •., 1921
NOT Y PUBLIC in and for the State
of Alaska.
My Commission expires '-
•
NOTICE OF PUBLIC HEARING
NOTICE IS HEREBY GIVEN THAT THE KODIAK ISLAND BOROUGH
PLANNING AND ZONING COMMISSION WILL HOLD A PUBLIC HEARING
ON JANUARY 23, 1974, AT 7:30 P.M. IN THE COURTROOM
OF THE STATE OFFICE BUILDING, KODIAK, ALASKA, ON
THE FOLLOWING:
Rezoning of Lots 40, 41, 42, 43, 44, and 45,
Block 2, Erskine Subdivision and Lot 12, Block 1,
Kodiak Townsite Survey, U.S.S. 2537-B from
R-3 to Commercial (Brechan/Iani)
Rezoning of Lots 48, 49, 50, Block 19, Kodiak
Townsite from R-3 to Commercial (R. Well3orn)
ALL INTERESTED PARTIES SHALL HAVE THE OPPORTUNITY TO
BE HEARD AT THE PUBLIC HEARING AFTER WHICH THE PLANNING.
AND ZONING COMMISSION MAY PASS OR DENY THE ABOVE REQUESTS
WITH OR WITHOUT AMENDMENTS.
KODIAK ISLAND BOROUGH
NORMA L. HOLT
BOROUGH CLERK
P.S. Section underlined in blue pertains to your area.
See attached map.
.•:
' Camtpity Baptist Church ' ete & Sarah Ramaglia
P. 0. Box 887 P. 0. Box 335
City .
Cty
R. C. & June Wilson
P. 0. Box 257
City
'John & Opal Waller
R. 9. Box 1656
City
With Wiley
P. O. Box 446
City
/
Lorraine Felton •
R. 0. Box 2CO3
City
Ray & Delores Padilla
P. 0. Box 2889
City
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Box 393-
Neil & Jane Sargent
P. 0. Bcx 121
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P. 0. Box 685
City
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P. 0. 13ox qc,17
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August C & Jack Gangola
P. 0. Box 6067
-City V`Cce
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KODIAK ISLAND BOROL 'ASSEMBLY MEETING
FEBRUARY 7, 1974
PAGE 6
NEW BUSINESS (continued)
L. Resolution 74 -11 -R - Establishing Payment of Personal Property Taxes
by City of Kodiak - The amount due is $99,502.59. Mr. Nelson moved for '
adoption of Resolution 71- -11 -R. Seconded by Mr. Brechan. Mrs Hickman
stated that these figures were correct. Motion passed by unanimous roll
call vote.
M. Resolution 74 -12 -R - Approving the Borough Assessor's Certified Tabulation
of Taxes Assessed on Property Belonging to Persons Who Qualify for. the State
of Alaska Senior Citizen Property Tax Program - Mr. Nelson moved for adoption
of Resolution 74 -12 -R. Seconded by Mr. Brechan. This is • Supplemental.
property. Motion passed by unanimous roll call vote.
N. Resolution 74 -13 -R - Authuilzing the Sale of Borough Owned Land to the
State of Alaska of Certain Parcels of Land in the Miller Point•Alaska Sub-
division, Kadiak Alaska Subdivision and the First Addition to the Kodiak
Alaska Subdivision and Ratifying the Execution of Warranty Deeds by the
Borough Mayor - Mrs. Wallin moved that we adopt Resolution 74 -13 -R.
Seconded by Mr. Nelson. Motion passed by unanimous..roll call vote.
0. Resolution 74 -14 -R - Requesting Extension of the Anton Larsen Bay Road
to Ice Free Water - Mr. Brechan moved for adoption of Resolution 74- 111 --R.
Seconded by Mr. Nelson. We are sending this to the State Highway Dept.
Mr. Nelson also suggested that we send this to Ouzinkie and Port Lions.
Motion passed by unanimous roll call vote.
P. First Reading of Ordinance 74 -3 -0 - 1973/74 Budget Revision - Mr. Nelson
moved for adoption of Ordinance 74 -3 -0 in the first reading. Seconded by
Mr. Brechan. Motion passed by unanimous roll call vote.
Q. First Reading of Ordinance 74 -4 -0 - Rezoning of Lots 48, 49, and 50,
Block 19, Kodiak Townsite - Russell Welborn from R -3 to Commercial - Mrs. Wallin -
moved for approval-of Ordinance 74 -4 -0 in the first reading. Seconded by .
Mr. Brechan. Motion passed by unanimous roll call vote.
R. First Rending of Ordinance 74 -5 -0 - Rezoning of Lots 4- through 45, Block 2,
Erskine Subdivision and Lot 12 Block Kodiak Townsite from R -3 to Commercial.
7. Mr. Nelson moved for approval of, Ordinance 74-5 -0 in the first reading.
Seconded by Mr. Brechan. Motion passed on the following roll call vote:
Mr. Brechan - ABSTAIN Mr. Nelson - YES, Mrs. Wallin - YES, and Mr. Powell - YES.
S. January Monthly Reports - No Comments
IX CHAIRMAN'S REPORT
A. Mr. Wood would like to take three trips and he would like the Assembly's
concurrence. Mr. Nelson voiced no objection to the use of funds from
Assembly Travel Account. Mr. Nelson felt that we should be judicious in
what we attend. Mr. Brechan stated that in the past we have had to review
written reports and suggested requirement after attendence at such meetings.
The Assembly concurred.
B. Mr. Wood feels that it was good that we attended the village meeting
and give them advise.
X ASSEMBLY CONVENTS
A. Mr. Nelson stated that the new High School building leaks and what is
being done about. it. Mrs. Holt stated that she talked with Rolland Janes
and that they have sent someone over with caulking to fix the leaks and
that they will be replacing the tiles.
B. Mr. Nelson feels that the Borough Assembly should attend the School Board
budget review meeting tomorrow, set for 3:30 in the School Lilrary.
He also asked about the removal of the trailers around the new high School
Mr. Powell stated that Ken Bray is working out a deal with the Kodiak Jaycees
to give them the traders through a State grant. Mr. Nelson also felt
that the Borough Assembly should have name plates, so the people in the audience
know who there talking to.
4
MR. F. RANDALL
2050 FREEMONT
SOUTH PASADENA,
91030
•
ti
,:KODIAK ISLAND '$OROIL.,( PLANNING ZONING COMMI . )N MEETING
"JANUARY 23, 1974
I CALL TO ORDER
The meeting was called to order by Deputy Chairman,
Mr. Jerry Holt, at 7:40 P.M. in the courtroom of the
State Building, Kodiak, Alaska.
II ROLL CALL
III
PRESENT
Mr. Jerry Holt
Mr. Tom Terry
Mr. Gene Erwin
Mr. Paul Stover
ABSENT
Mr. John Welch
Mr. John Burnham
Mrs. Wilda Gellis
Also present was Norma Iiolt, Borough Clerk, Ray Hickman,
and approximately 12 people in the audience.
MINUTES FROM PREVIOUS MEETING
A. P &Z - Regular - December 19,-1973 - Mr'. Erwin made a
motion to approve.the minutes of December 19, 1973. Seconded
by Mr. Stover. Motion passed by unanimous roll call vote.
MINTUES FROM OTHER MEETINGS
A. Assembly - Regular - January 3, 1974- No Comments
B. Assembly - Special - January 17, 1974 - No Comments
C. Minutes from Land Use Hearing - City of Kodiak-- No Comments
V COMMUNICATIONS & CORRESPONDENCE
A. Rezoning Request of Lot 1, Block 3, Allman Addition
from R -1 to R -3 - William Robertson - They.state in their
letter that they are surrounded on three sides by R -3
property. Mr. Stover moved to approve the rezoning request
for a public hearing. Mrs. Holt stated that this lot has
two buildings on it. In order for them to sell the lot and .have
it FHA approved, they must sell it as a duplex. Mrs Holt
suggested that P &Z consider rezoning the entire block.
The motion was seconded by Mr. Erwin. Question being called
for, motion passed by unanimous roll call vote.
B. Letter from Historical Society - Consideration of Baranof
Museum on the Near Island Planning - Mr. Holt suggested
that we take note of this. letter and when the question of
Near Island Planning is brought before the Planning & Zoning
- Commission, this will be taken up then.
VI PUBLIC HEARINGS
A. Rezonin• of Lots 48 49
Townsite from R -3 to Commercial - Mr. Stover made a motion
to approve the rezoning. Seconded by Mr. Terry. Mr. Holt
closed the regular meeting and opened the public hearing.
Mr. Welborn stated that he felt these lots were not suitable
for residential. Mrs. Holt stated that she had received a
call from Mrs. Fulp, she felt that these lots were not
suitable for residential, her only concern would be the
type of business that would go in. The public hearing was
closed and the regular meeting reconvened. Question being
called for motion passed by unanimous roll call vote.
B. Rezoning of Lots 40 41 42 43 44 and 4 Block 2
.. Erskine Subdivision and Lot 12, Block 1, Kodiak Townsite,
U.S.S. 2537 -B from R -3 to Commercial - Mr. Stover moved
to approve the rezoning of Lots 40 -45, Block 2, Erskine Sub
and Lt. 12, Block 1, Kodiak Townsite. 'Seconded by Mr. Erwin.
and 50 Block
1• Kodiak
KODIAK ISLAND BORO4/ PLANNING & ZONING COMMI,
JANUARY 23, 1974
VI PUBLIC HEARINGS (continued)
A. Mr. Holt closed the regular meeting and opened {tithe
public hearing. Mr. Iani stated that the reason that he
was asking for a rezoning to C6mmercial was to have enough
square footage requirements to enable them to build on the
lot. Mr. Snyder asked what the height limitation of the
apartment building would be. He did not want the building
to block their view. He wanted a guarantee that the
building would not completely block the view from Rezanof.
Another gentlemen asked about the paving of Erskine street.
In the winter you could not drive up the street and only
one car -could use it at a time. He was told that he
would probably have to contact the city on this.
matter. Mr. Holt asked Mr. Iani if he would be agreeable
to the stipulation of not building,over the 35 foot limit
above Rezanof. Mr. Iani agreed. Mrs. Voschoska asked what
the address would be. It would be Erskine. The State Dept.
of Highways will not let them have an access from Rezanof,
only a walk area to the apartments. Mrs.`Voschoska also asked
about the area across Rezanof from the apartment building
and would this area go business. This area is zoned R -2
and the Planning & Zoning Commission felt that it would
most likely go residential along Rezanof. Mr. Holt closed
the public hearing and reconvened the regular meeting.
Mr. Stover amended his motion with a limitation that the
/building not exceed one story above Rezanof Drive. The
second concurred. Motion passed by unanimous roll call vote.
C. Vacation & Replat of Lots 40 -45, Block 2, Erskine Subdivision4
and Block 1, Lot 12, Kodiak Townsite, U.S.S. 2537 -B into one
parcel, Brechan /Iani - Mr. Stover made a motion to approve
the Vacation and Replat of Lots 40 -45, Block 2, Erskine Sub,
and Lot 12, Block 1, Kodiak Townsite. Seconded by Mr. Erwin.
Mr. Holt closed the regular meeting and opened the public
hearing. Mr. Snyder wanted a guarantee from the Planning &
Zoning Commission that if this plan did not go through that
no other business project would go in and if it did; he
wanted to be aware of it. The public hearing was closed and
the regular meeting reconvened. Question being called for,
motion passed by unanimous roll call vote.
Mr. Holt entertained a motion that if the housing development
plan as previously presented the Planning & Zoning
Commission by Brechan /Iani does not go through, that it
will be returned to P &Z and a public hearing held for any
other use. Mr. Stover so moved. Seconded by Mr. Erwin.
Motion passed by unanimous roll call vote.
D. Vacation & Replat of Tideland Tracts P -14 and N -32 into
one parcel N -32A, Robert Hall - Mr. Stover made a motion
that we approve the Vacation and Replat of Tideland Tract
P -14 and N -32. Seconded by Mr. Terry. Mr. Holt closed
the regular meeting and opened the public hearing. There
being no comments, he closed the public hearing and re-
convened the regular meeting. Question being called fort_
motion passed by unanimous roll call vote.
VII SUBDIVrsIQNS, PRELIMINARY
A. Request for a subdivision of a portion of U. S. Survey 3468,
2.5 Acre Parcel - Mr. Hickman stated that this - -was the land
that we are selling to Kodiak Western Airlines. Mrs. Holt
noted that the Borough Assembly approved the selling of
the land on which the hangers were located :ma, to Kodiak
Western, which totaled 2.5 acres. Mr. Terry made a motion
to approve the preliminary subdivision. Seconded by
Mr. Stover. Questinn being called for; motion passed by
unanimous roll call vote.
\
Kodiak Island Burough
Planning and Zoning Commission Meeting
January 23, 1974
Kodiak, Alaska
Jerry Holt:
Rezoning of Lots 40, 41, 42, 43, 44, 45; Block 2,
Erskin Subdivision, and Lot 12; Block 1, Kodiak Townsite.
U.S. Survey 2537 B, from R-3 to commercial.
Norma Holt:
We hereby request the attached subscribed area be re-
zoned from R-3 to commercial and the necessary zoning re-
quired by proposed development. Your earliest attention
to this matter would be appreciated.
If you are unfamiliar with the area, this is the area that
we discussed last week, or last month. The area is just
below Rezanoff and Erskin Drive, where it comes down, &
some time ago they vacated that portion of Erskin, & we dis-
cussed this last time.
Mr. Iani is in the audience if you have any questions in the
public hearing of the rezoning. Let me show you an enlarge-
ment.
Speaker:
What happned is that we had more than one building on
one lot?
Speaker:
Speaker:
N. Holt:
Vacation or replat?
They are going to commercial now instead of R-3.
They will be replatting.
Speaker:
Yes, but we talked about replatting one building to
one lot, & we decided to go commercial.
We have to have a motion on the floor before we can
open it up for a public hearing.
J. Holt: Motion has been made. Is there a second?
Jean Irwin:
Seconded the motion.
Page 2
Planning & Zoning Commission
January 23, 1974
U.S. 2537 B
J. Holt: Alright, the regular meeting is, closed & we're open
for a public hearing. Is there anyone in the audience who
would like to comment on the rezoning of lots 40, 41, 41,
43, 44, 45; Block 2, Erskin Subdivision, and Lot 12;
Block 1, Kodiak Townsite, U.S. Survery 2537 B, from R-3 to
commercial?
Speaker: You might repeat the area's that you are interested in
& what your interest is, & make sure that your talking
about the right area.
Note: -Sounds like people are gathered around a map. There
is alot of shuffling of paper & mumblings from a number of
different voices, in an effort to make clear the area being
discussed. Sounds like hodge podge. a.n.
Speaker:
Right below Ramaligie;s house, behind the mortuary.
Speaker: I was called this morning, and was told that I should
be concerned, & I am.
Speaker: We would kind of like to know exactly what you,:re,floon-
cerned about too. We don't even know what is being built or
what.is going on here, or what we're getting involved in.
Speaker:. Is this a replat?
Speaker: No. Except that there will be no lots. It'll be one
big plat.
Speaker: The main problem in this is the amount of square footage
per dwelling. Butiwe want to make individual four-plexes in
this area we would have the whole are4in one big type build-
ing. That's the main reason we have to go to commercial to
get the square footage per dwelling.
Speaker: Are there heighth restrictions involved?
N. Holt: Yes there are.
Speaker: I don't think there are Any_problems.
Speaker: What is the heighth restriction?
N. Holt: 50' or 3 stories.
Speaker: This would allow another 1/2 a story or another 15'?
Page 3
Planning & Zoning Commission
January 23, 1974
U.S. Survey 2537 B
J N. Holt: Right.
Speaker: What excavation is involved in that?
Speaker: We can't do anything now until we get this clarified.
Speaker: Is it, or is it not legitimate to put this all on one
lot?
Speaker: If it is commercial, yes.
Speaker: What is the total area of that one lot?
Speaker: .About 300 square feet.
N. Holt: 38,000
In a commercial you can go to 1200 square feet per
dwelling unit in unit assembly.
Speaker: 24 units, probably, but we could shave that if nec-
essary, depending on the square footage on the basis of
being commercial.
N. Holt: With a multi - dwelling of less than 7 dwelling units,
which is what they would have. They would have a four -plex
& each one would require 1200 square feet per dwelling unit.
Speaker: And this is going to include a garage under the building ?'
Speaker: A total of three stories.
J. Holt: O.K., that comes out to be about 1500 square feet per
dwelling unit, if you've got 24 units.
. Speaker: Might I ask the elevation relative to Rezanoff? Our
conversation concerning the heighth of the building is un-
important if we don't understand where the foundation per se
is going to come from. We aren't objecting. I am not per-
sonally as an owner, objecting to having this structure
built, unless it affects our view. So could you possibly
inform us.
Speaker: What is the proposed heighth of the dwelling unit?
ac Mr. Iani; Can't remember exactly iE the ground unit will be
even with Rezanoff or not. It won't be above.
Jfl
Planning & Zoning Commission
January 23, 1974
U.S. Survey 2537 B
- Speaker: About 8-10 feet above Rezanoff.
Page 4
Speaker: If it goes above that, is there anything that could
protect us from a higher edifice?
- N. Holt: Yes. You have a limit of three stories or 50 feet.
He said that the 2nd level would be approximately the same as
the street. Meaning, I assume, that the 2nd level would be
about 8 feet above that road. The very top of the roof would
be about 8 feet above Rezanoff.
Speaker: Do you know what the drop-off is?
Mr. Iani: No I don't.
Speaker: Would you say it's 50 feet?
Speaker: I think it is 35 feet. I'm pretty sure it's 35 feet,
elevation.
Speaker: Right now with the way the zoning is, you could put in
a 35 foot building. In R-3 you can have a 50 foot building,
in R-1 you can have a 35.
Mr. Iani: We want to put as much on that land as possible. We
don't intend to go any higher. We just want to try and up-
grade. If we can't, we can't.
Speaker: We would like some guarantee's that it is going to be •
in fact, a very high key apartment project, & also that it
can't go higher.
Speaker: Do we have the topographical information here?
N. Holt: As far as the heighth? No. As far as the level of the
land, at the precise moment, no I don't have that, But they
are stating at putting in a three story building & figuring
that you have 10-12 foot ceilings, then the building is not
going to exceed more than. 36 feet. Three stories is all that
they are allowed. Either three stories or. 50 feet, whichever
is greater. So they are putting in three stories.
Speaker: One story is a garage.
N. Holt: It's not a sunken garage, it's still a story. I think
you still have to count that as a story.
Page 5
Planning & Zoning Commission'
January 23, 1974
U.S. Survey 2537 B
Speaker: Is it going to be staked out down by Mission, or is
it going to be staked out by Rezanoff?
Speaker: As the zoning is right now, an owner of that property
is perfectly within his rights to put a building 35 feet
in height, & as long as he conforms to the location on the
lot, he can put it any way he wants to. What I'm trying to
get at, is the 15 foot differential between what he would
be allowed in commercial & what he would be allowed-the
way it is now would not make any difference.
Speaker: Our problem can be quite clearly answered by composite
elevations on the part of the construction organization in-
volved. I've drawn many of them myself, they aren't that
difficult to do, -& in all respect to the zoning commission,
I feel they should be offering proof, as you can form an
opinion.
Speaker: The problem is that we can build a 35 foot building
there now without even coming to us. And he states that he
isn't going to build over a 35 foot building. The only
reason that he wants to zone it commercial is for the
amount of buildings that he's going to build on the land.
Speaker: If our laws were written to help us control our (?),
I suggest that we ask the gentleman to show us therefore,
exactly what he's about to do. Perhaps it's going to in-
crease our property. I don't object. I'm simply saying
that I'm ignorant as to what is going to happen, & I don't
have to be, & the zoning commission doesn't have to be, I
hope.
Madsen: The question has been asked, & not really answered,
what is this height restriction relative to? These lots
border Erskin Drive down below Rezanoff, & also border on
Rezanoff. Can the owner build 35 feet above Rezanoff Drive?
Speaker: The only way to do it, is to be granted subject to a
restriction agreed upon by the property owners, that the
buildings will not in fact rise above the level of Rezanoff.
Speaker: Rezanoff is on a grade that gradually climbs. You
cannot put a bunch of buildings.
Speaker: Our objection would be followed by relative to the
grade of Rezanoff.
Speaker: That would have to be with the agreement with the
property owners because as 1 say, right now he has the right
Page 6
Planning & Zoning Commission
January 23, 1974
U.S. Survey 2537 B
to put up a 35 foot building.
Speaker: Agreed. I'm not objecting to that. I'm simply asking
what the man wants to do relative to the level of Rezanoff
& our property.
Mr. Iani: I answered your question as best I could.
Speaker: I have asked the zoning commission if it is possible for
you to guarantee us that this is what is going to happen?
Speaker: If the •floor level is going to:be even with Rezanoff
then what is the roof profile?
Mr. Iani: It'll be flat. Maybe a little peaked for beauty, but
that would be all. We're trying to achieve something that I
believe is necessary for the community, & for everybody in-
volved.
Speaker: You're talking about a project here that has a magnitude
as far as money is concerned. I'll be honest with you, we
don't have it. We need to seek the finances. With all this
waiting back & forth there is no way that we can do anything
about the finances or go ahead on anymore drawings.
Speaker: We aren't objecting, we're asking. Our community needs
the type of project that you are talking about. How can you
possibly ask for rezoning until you have completed elevation?
Mr. Iani: We-have the elevation.
Speaker. Where?
Mr. Iani: The problem as far as rezoning is the fact, that if we
assume that without any (?) we would be under a 1600 square
foot per dwelling, which ...
Note: Many voices trying to speak, cannot decipher any one
person speaking. a.n.
Speaker: I might say one thing as far as elevation goes, & that
is that I'm pretty much familiar with the Rezanoff Drive,
& the elevations pertaining to the slope there, inasmuch as
I was in charge of highways ab the time it was built. I
feel that I don't know the elevation that Iani has in mind
to start his buildings below the tow of the slope, but I do
feel that a three story building would be below, or not very
•
Page 7
Planning & Zoning Commission
January 23, 1974
U.S. Survey 2537 B
much above Rezanoff Drive. That's my personal opinion,
& I feel that they could very comfortably build a three
story building. In order to do it, it'll require excava-
tion on their own lot.
Speaker: Well, Smokey, the point is this, they are (?)
Note: (The above speaker was all mumbled out for a few words.)
a.n.
Speaker: At this point you could build a building 35 feet above
•the ground. You can fill the land with rock & then go up
to 35 feet.
Speaker: So the rezoning to commercial would increase the possible
heighth by 15 feet, which we would not want. Would you agree
to a stipulation on the thing which states that none of the
buildings would exceed the 35 foot heighth limitation current-
ly above the ground? In that case, the rezoning as far as
the view goes would make no difference whatsoever.
Ms. Voschoska:
I came in a little late, but you said none of the buildings.
How many buildings on 5 or 6 blocks on Rezanoff do you in-
tend to put that will face on Rezanoff?
Speaker: None
Speaker: Well actually, they won't be facing on Rezanoff.
Each building will have 3 stories.
Voschoska:
Two blocks each?
Speaker: Depending on how we conserve. We may have to turn one
of them.
Voschoska:
Will they cross of Rezanoff? The access from Rezanoff?
Speaker: No.
Voschoska:
If this is rezoned commercial can these apartments ever
be converted to stores, canneries, or whatever?
Page 8
Planning & Zoning Commission
January 23, 1974
U.S. Survey 2537 B
Speaker: Could, but not to a cannery.
N. Holt: Could be used for repair stores, even .a beauty shop.
Speaker: But not with access from Rezanoff.
N. Holt: Not without parking facilities.
Speaker: They have been denied access from Rezanoff.
Speaker: There'll be a walk bridge.
Speaker: Could you possibly give us a picture of the projection
of our property valued because of your accomplishment?
Speaker: I don't think it .would hurt the neighborhood, but I
don't know how it would help as far as property value.
Smokey: There's a small chance that you wouldn't be able to see
the mortuary.
Speaker: It certainly wouldn't the value any.
Speaker: Are there any other comments?
Voschoska:
What would the address be? Would it be something Rezanoff?
Speaker: Erskin. It's address would be on the abandoned road.
Speaker: What's your investment?
Mr. Iani: Well, I would think that that isn't up for discussion.
Speaker: Well, we're involved. We're here because we are property
owners in the area. O.K., it's probably costing you more than
$200,000? We're speaking in terms of a minimal $200,000 in-
vestment.
Mr. Iani: All I know is that I'm trying to achieve something &
maybe I'm wrong, & maybe I'm right.
Speaker: I'm not saying that you're wrong at all. I highly en-
dorse your venture. I'm asking what it is you're trying to
Page 9
Planning & Zoning Commission
January 23, 1974
U.S. Survey 2537 B
come about in?
Mr. Iani: I'm trying to get some adequate housing for Kodiak.
Speaker: Do have any plans for improvement of that road?
J Mr. Iani: Eventually I imagine the city will have to take care
of that. You realize that you have 24 families living in
there
Speaker: I own Lot 30 '& my house borders right on that road, &
it's a very narrow road, & during the winter it is very
icey & slippery, & if there's one person walking up the
road, you can't go up until that person gets to the top
because there's no room on either side of the block or the
side of the road. During the winter when there's lot's of
snow & ice -you have to walk right up the middle of the
road or off to the side because there's not room for the
person to drive by until that person is off that road.
I suppose that road is going to have to be improved in
some way. If there's going to be all these families liv-
ing up there, there's going to be alot of traffic on that
road.
N. Holt: It is a city road I think.
Speaker: How is it dedicated?
N. Holt: It is dedicated & it is wide enough.
Speaker: Maybe I'm the one- who is mixed up, but it seems to me
that all'it is that he's got to do now is going down there
& build exactly what it is that he's got in mind, or orig-
inally he started with in mind with the solid wall con-
struction.
N. Holt: Yes he could do that.
Speaker: I mean, there will be the sameoamount of families liv-
ing there regardless of the buildings, they'll be the same
heighth.
Speaker: That's right. He can build the building the way it is
right now, in one building, block off everything, 35 foot
high without even being here. But what he is trying to do
is talk these people into letting him build single dwell-
ing four- plexes, instead of one 24 unit, which he can build
right now.
Planning & Zoning Commission
January 23, 1974
U. S. Survey 2537 B
Page 10
Speaker: I'm simply asking to see something of what our license
is that we're giving him to accomplish this.
Speaker: He can build one building on each one of the lots that
he has now. He can't get enough units on it the way it is.
Speaker: I can mention one person by possibly comparing it to
the quality of ...
Speaker: I wasn't going to mention any names, but that's what
seems to be everybody's direction was leading us to build
something like that.
Speaker: If this goes through, how would you compare it to it?
Speaker: It would be the same. You can't beautify something
that you can't ...
Speaker: No, saying if this proposal goes through, you can
build it the way you've got it right there. How would you
compare it?
Mr. Iani: What we're trying to achieve is individual housing
units, Jerry & the rest of the P & Z, that have an identity
that's all their own. In other words, you wouldn't have all
the houses the same color, they would each be form, it
/ would look like a residential district rather than an apart-
/ ment complex. That's what we're trying to achieve. Plus
the fact that it's the last remaining few view lots, & we're
going to use the land for the intention at using the view
lots. That's why the living rooms in all the areas are go-
ing to be facing the channel. I really don't think that
that has anything to do with what we are discussing here.
Speaker: You're not spoiling the view for somebody else, in
other words?
Mr. Iani: That's not our intentions. If we do it by accident,
that happens, but I don't see how it can be Smokev. You
know that land yourself. We're not going to do much...
Smokey: You're going lower down rather than 1113, otherwise
You aren't going to get to it from down below. You can't
do it. I've walked all over every foot of that ground.
Well, I think it's pretty clear that you're not going to
spoil the view of people on Rezanoff or above Rezanoff.
I'd sure like to see that changed, the way that looks down
there now.
Planning & Zoning Commission
January 23, 1974
U.S. Survey 2537 B
Page 11
Speaker: It is adjacent to a commercial area.
Speaker: That is true.
Madsen: This is one of the reasons that we're probably con-
cerned, because all of this area borders a commercial area,
you know. How far do we continue the encroachment? This
is a growing thing. I agree 100% that this is fine for
Kodiak. But one of the questions that presents itself is
that this is not a definite project. If this project does
not go through & something else, shall we say that is de-
sireable goes in there, what recourse does the public have?
Speaker: Mr. Chairman, I would judge that the rezoning should
be relative to the successful accomplishment of this pro-
ject if the gentlemen can satisfy the board with elevations
that doesn't upset you folks, we'll probably not come back.
Speaker: Could they do that?
N. Holt: Could be. Any business uses have to come from planning
and zoning. Any uses that they would want to put in there.
Speaker: Once that land is made commercial, it is commercial.
Speaker: Unless we put some stipulations on it.
Speaker: I don't know if you can or not.
- Speaker: If you are going to rezone that to be commercial, it's
commercipa, you can't put a stipulation on it. The only
thing that you can do is to stipulate the business that goes
in there.
N. Holt: Right. Stipulate the business that go in there. It
says that other building uses or services,similar to the
ones..., are determined by the planning & zoning commission,
to the uses here inlisted, & types of services, goods sold,
& the number of persons controlling, etc., & the effect on ,
adjacent areas. So you do have the right to review any of
uses. They do list several, they have retail stores, re-
tail service shops, banks, offices, hotels, resturants,
theatre, bowling alleys, assembly halls and such that come
under the business dwelling. But if you zone something it
is done by ordinance. This is requirement. The ordinance •
is required 1st and 2nd reading at the public hearing. So
if you wanted to change the use of it again, & do not want
a business in it, you would have to go back to an ordinance
again. You would have to go through the same thing.
•
Planning & Zoning Commission
January 23, 1974
U.S. Survey 2537 B
Page 12
Speaker: Mr. Chairman, therefore, do I understand that you are
encouraged to review if the project does not go through?
You have the power to say whoa?
Speaker: But if it goes commercial, it stays commercial, unless
the owner wants it changed. We cannot put a stipulation on
that if this project does not go through then it reverts
back to R-3.
Speaker: Apparently I am confused. It would remain commercial,
however we'd have the say as to what went in there if this
didn't.
Speaker: What are your powers relative to a commercial zone
then? Could I put my woodshop in there?
Speaker: Yes.
N. Holt:' What type of woodshop?
You're talking about manufacturing or industrial,
rather than business. It would be different.
Speaker: It's a questionable thing. There are many thousands of
dollars invested in this area. If they want them built,
fine apartment buildings, fine. But don't open it up to a
ball park.
Speaker: I was thinking in the future, if this is zoned commer-
cial. What about the property across the street, on the
northern side of Rezanoff? I'm assuming it's R-3 now?
N. Holt: 'It's R-2.
Speaker: Will they use this to do it up, you know? It would
be ideal for little shops to go along there.
Speaker: No, but they'd go in there & build a building 35 feet
high.
Speaker: What's R-2?
N. Holt: It allows for one R-2 family dwelling, that would be
a duplex.
Speaker: That would one or two. You can put a duplex in there,
which can be 35 feet tall.
Smokey: Might build in front of you there. Worse than what is
below you. You don't want to worry about the lower. Better
buy that lot.
Planning & Zoning Commission
January 23, 1974
U. S. Survey 2537 B
Page 13
Speaker: Probably looking over a long period of time, there will
be this type of development from the core on upward.
N. Holt: I don't think you can go up Rezanoff.
Speaker: No, but the density of the...will increase & it will
crop in various directions. Probhbly not this way, prob-
ably out more Mill BAV, but you are talking about 20-30
years from now, who knows what we'll have. We may have
twice the population, three times. This has happened just
about everywhere as the population grows the residential
area, which was at one time pretty far away. This will
probably happen.
Speaker:
Speaker:
Speaker:
take
N. Holt:
city.
Smokey:
N. Holt:
Smokey:
Speaker:
Is there any other comment or suggestions?
What do you have to do to get a street paved?
You have to talk to the city about that. You have to
out your wallet.
Yes, it's a city street, you would have to talk to the
Which street are you talking about?
Talking about Erskin.
I'd talk to Brechan & Iani, they are in the business.
Thank you very much sir. ROAR.
J. Holt: Alright, public hearing is closed, and we'll return to
the regular meeting.
Speaker: What were you talking about proposing? A h‘lighth mini-
mum above Rezanoff?
Speaker: The stipulation, if Mr. Iani will agree to it, to the
affect that none of these buildings will exceed 35 feet
above Rezanoff, which is what they could be right now.
Speaker: Someone said while we were talking somewhere between
12 and 15 feet though.
Speaker: 1 doubt that if any of them will equal that,
Page 14
Planning & Zoning Commission
January 23, 1974
U. S. Survey 2537 B
Speaker: Will he agree to that?
Speaker: He can't go higher.
Speaker: I said 35 feet because 35 feet is what they could do
now. But I thought that the public living in there would
be more inclined to go along with the project if this were
set up.
Speaker: Are there regulations in there somewhere about that?
Mr. Iani: I would be prepared to agree with it if it can be on
the basis of not above one story above Rezanoff.
Note:
Many voices speaking at once. a.n.
N. Holt; Yes. I think one story above, because anybody could go
in there with a one story building.
Speaker: Would you like to amend the motion?
Speaker: With a motion?
Speaker: I'll amend it to one story above Rezanoff, at it's
lowest elevation.
Speaker: Does the second agree?
Speaker: Yes.
J. Holt: Is there more discussion?
J. Holt: Question?
Roll Call: Mr. Terry -
Speaker: Is this a first reading?
N. Holt: No. This is a public hearing. The ordinance has to
be prepared & taken to the Assembly the 7th & then the
public hearing after that.
Roll Call: Mr. Irwin - Yes
Mr. Stover - Yes
Mr. Holt - Yes
Planning & Zoning Commission
January 23, 1974
U. S. Survey 2537 B
J. Holt: O. K., the
42, 43, 44, 45,
Block 1, Kodiak
parcel, Brechan
Page 15
next one is vacation replat.'Of,tots 40, 41,
Block 2, Erskin Subdivision; and Lot 12,
Townsites, U.S. Survey 2537 B into one
& Iani.
Speaker: We've already approved one phase of this, so I am
going to make a motion to approve the other phase of it.
J. Holt: Motion is made, do we have a second.
Speaker: Seconded.
J. Holt: O.K., it's been moved & seconded. Regular meeting is
closed. Do we have public hearing? Is there anyone who
would like to comment on this? You may not quite understand
what we are doing, is changing this then from a series of
separate lots, into one large lot, which will accomodate all
of these buildings that they want to put on it.
Speaker: There is one question, & I feel I am speaking for the
voice here, & that's I would like some form of assurance
that as far as the public is concerned that the project as
it is described does not come about. I think the public
is asking for something to protect us from the commercial
zoning in that area, despite the fact that the city has to
grow out of it's core. This is our chance to say hey, wait
a minute. I'm asking Mr. Chairman, what is our guarantee
if somehow the project doesn't come about, & we're open to
whatever?
Speaker: Any other project would have to be reviewed here first,
the same as this.
Speaker: But it wouldn't need a public hearing?
Speaker: No, but it's your choice. You may request a public hearing.
Speaker: We're told that this is our chance. I realize that, but
the continuity of planning & zoning may not be such that any-
body will remember this except the people that .this would
happen before they were aware of what was happening,
N. Holt: O.K. then, your discussion is still on the zoning not
the vacation replat, & you want to go back to that? If you
want to stipulate that in your minutes that if this develop-
ment does not go through prior to another development going
in the lot, it must be brought to p & z, and another public
hearing held, just put it into your minutes.
Page 16
Planning & Zoning Commission
January 23, 1974
U. S. Survey 2537 B
Speaker: I think that we could do that, but I think that that
is separate to the question that we have right now.
N. Holt: It is a separate question that you are holding a pub-
lic hearing on right now, but he asked that it be taken
care of, so let's just go back to the other one & put that
in.
Speaker: Is it read in?
Speaker: Why don't we take that up then as a separate consider-
ation on both of these after we take the action on this.
N. Holt: Yes, you can do that.
that his statement does not
vacation replat, so that we
answer his question, & then
O.K., I just wanted you to know
have anything to do with the
can go.back. 1 just wanted to
we can...
J. Holt: Are there any other comments from the audience on the
vacation replat? Being there is no further comments, pub-
lic hearing is closed & regular meeting is resumed.
Discussion? What's flavor?
Speaker: Question.
J. Holt: Question has been called.
Roll Call: Mr. Irwin - Yes
Mr. Stover - Yes
Mr. Terry - Yes
Mr. Holt - Yes
NI/ J. Holt: Alright at this point, we would like to take up the
question of a review of this in the event that the Brechan
Iani plan doesn't go through.
N. Holt: I think that you should stipulate the housing develop-
ment plan as presented to p & z at your prior meeting.
Speaker: I make the motion.
Speaker: I second it.
N. Holt: It will have to be returned to p & z & a public hearing
held at that time for additional use or another use.
Page 17
Planning & Zoning Commission
January 23, 1974
U. S. Survey 2537 B'
Speaker: We'll wait until the secretary gets it written down.
Smokey: You'd better learn to write.
Speaker: It isn't the writing, it's the thinking that is the
problem.
Speaker: Mr. Chailman, could the public hear the action?
J. Holt: Yes, I'm going to have her read it back when she gets
it written down.
:Smokey: Actually we're working in terms of the best use of this
property, I believe, & I'm sure that you will appreciate the
fact that I personally have gone over the property myself, &
I'm familiar with it. I really don't believe that this
whole project as stated is not in the favor the betterment
of the community. I don't think that it's going to be a
hazard for the people above.
J. Holt: Do you have it all written down?
Would you like to read it please?
Speaker: Yes I will.
J. Holt: Alright motion is:
Secretary: that if the housing development plan does not go
through that it will be returned to p & z committee, & a
public hearing held for any other use.
J. Holt: Can we identify the housing plan & what we're talking
about so we'll know which one we are talking about. cause
we aren't attaching it to anything.
Note: Much mumbling.
J. Holt: You want to read it again?
Secretary: That the housing development plan as previously pre-
sented to p & z by Brechan & Iani, does not go through that
it will be returned to p & z and a public hearing held for
any other use.
J. Holt: It's been made & seconded?
1/‘ N. Holt: Yes
Planning & Zoning Commission
January 23, 1974.
U. S. Survey 2537 B
Page 18
J. Holt: We miaht as well let the 'public have a shot at this.
Why not?
N. Holt: ' You don't have to put it
want their comments, but you
public hearing on this partic
Z. Holt: O.K., is there anyone in
- to comment on this particular
Discussion?
Speaker: Does it require a vote?
N. Holt:
the
Speaker:
to regular meeting if you just
are going to advertise for a
ular question...
the audience who would like
motion. No comments? O.K.
Sure it requires a vote, but vou have .a discussion on
floor. You have a motion on the floor.
Question.
Roll Call: Mr. Irwin - Yes
Mr. Stover - Yes
Mr. Terry - Yes
Mr. Holt - Yes
)
0!-
This is to verify that I, Anita A. Newell, did in fact
do the transcription on the Planning & Zoning Commission
Meeting held on January 23, 1974 concerning the rezoning of
Lots 40, 41, 42, 43, 44, 45, Block 2, Erskin Subdivision,
and Lot 12, Block 1 Kodiak Townsite, U. S. Survey 2537 B,
from R-3 to Commercial.
To the best of my ability this transcription is true
and correct. Where there are area's of indistinction this
has been indicated as necessary. Places of repetition were
deleted if deciphered.
This transcription was done on June 8 & 9, 1978, and
signed by
Ani a A. ewe 1, (June 9, 1978
Island Secretarial Services
Kodiak, Alaska
This signing has been witnessed & notarized by
irley . Miller, Notary Public
Kodiak Island Borough
Kodiak, Alaska
My CommIssIon ExPires
-Pctober 19, 1981.
•
- -
KODIAK ISLAM BOROUGH PLX.114114G & ZOlirbIG COiIJISSION
MAY 26th, 1971
CALL TO CIDER
The meeting was called to order by Chairman John Welch ,at 7:45 P.E. in the
Courtroom of the State Office- Luilding, Kodiak, Alaska.
II ROLL CALL
Present Absent
John Uelch, Chairman
Coleman Constance
E. E. Erwin
Chudh Edris
Jerry holt
III minurEs OF PREVIOUS IWOLOG
Jii ilheeler
Al Planning & zoning - regular. meeting - April 28th, 1971. Mr. bolt roved for
j approval of the minutes as presented, seconded by Mr. Edris. Motion passed
' by unanimous voice vote.
IV MINUTES OF .011IER 1.1EVITAGS
A. Assembly - Special meeting - April 30th, 1971.
B. AsseMbliT - regular meeting - May Gth, 1971. There were no comments made on
, the two meetings.
V COMMUNICATIONS AND CORRLa,OilEENCE
A. Letter from Mr. heukers, Superintendent of Public "iorks, City of Kodiak,
stating that the City of Kodiak is currently planning to number the houses
in Kodiak and requesting that the Commission develop astreet naming plan
for those streets that do not now have names. -It was further recommended
by the City that several streets be redesignated so they will be through .
streets instead of running into each other as they now do. Mr. Beukers '
presented a map for the Con-mission's use on which were colored the streets1
needing names (shaded in brown) and also indicating those streets which
should be redesignated and are listed as follows:
- hillside should continue through the low-rent housing to the Pillar
Mountain Road.
Tagura Road should be the hill only and be redesignated Marine Way as
this road will eventually continue to Father Herman Street in the
Oceanview Subdivision.
Redesignate Mill Bay Road from Center Street to the "Y" below the
High School as Benson Avenue.
Redesignate Benson Avenue from the Rezanof intersection to the Tan Stile.
Road as Rezanof Drive.
Redesignate either North Blvd. or Hill Crest Avenue one or the other
as it is a continuous.
Redesignate Veniaminof to some other name which will not be as difficult
to pronounce or spell.
Mr. Constance moved that the streets as designated by Mr. Beukers be incor-
porated into the zoning and contact be made with the Historical Society to
obtain their recommendations concerning the naming of the other streets,., -
seconded by Mr. Erwin. Motion passed by unanimous roll call vote. -
The question was raised as to whether or not the Pillar nuntain Road '
officially so named and how far this road extended.-The-ioad was neveli
officially named but everyone us; this name. Mr. Holt moved that the ')-2 -
Pillar Mountain Road by the lower reservoir be officially designated t.y _
the Pillar iqountain Road, seconded by lir. Constance. Notion passed by unanim
voice vote.
I.aB PLANNING & ZWING Cak IISSION - HAY 2Gth, 1971 Page .2
VI PIA-1%TC HEARING
■
A. Public hearing on Vacation Request of Fred Bredhan and Louis Iani - vacation '
of portion of Lrskine Avenue between Block 1 and 2, Erskine Subdivision (case
241-A). The letter requesting the said vacation was read in full. Mr. Consta
roved that the regular meeting te closed and a public hearing be opened on the
vacation request, seconded by Kr. Edris. No objections were voiced the
Chairman so ordered. There were two people in the audience thatelished to
ask questions concerning this vacation. One individual lived on uppper Erskint
and was questioning the type of structure that would be placed there and whetS
or not this would be a two-story building. It was noted that the plans for,th .
building have not as yet been received; this is taken care of by the City,
however the buildin will conform to the •resent building dode and.could nop
re an 35_feeeelliqn. The other individual lived below Erskine Avenue
and was concerned with the amount of fill that would be placed above their
property and further questioned the problem of drainage. The problem of drain
will be taken care of at the time of a final plat which will show all the
utility easements and it was noted that the drainage cannot by law be allowed
to spill over onto another's property. The Commission noted that the question
before them at this time was for the vacation of the lower avenue and that the
final plat will show all the necessary water and sewer easements as required
by the City. The public hearing was closed and the regular meeting reconvened
Mr. Holt moved for approval of the vacation of that portion of lower Erskine :o
Avenue, secentLed by Mt. Constance. notion passed by unanimous roll call vote.
VII ZONING reel f.tS
A. Vacation Request - Block 47 East Addn., Vtight and Arndt. A resume was given,
on the background of this case, apparently several years ago this had been
approved but was never recorded. The block is carried.on the Borough Zoning
map with the proposed revision which gives each lot the required 7200 square
feet as reauired for fl-1 zoning. The Borough Attorney has 4ot given an opinio
as to whether or not this must be reviewed again at a public hearing. Mr. 1101
moved for approval of the preliminary plat and for a public hearing if determi
necessary, seconded by eir. Constance. Passed by unanimous roll ea11 vote.
B. Vacation Request - tennis Cessna, Block 51, Lots 16, 17, 18 to be Lots 16A
and 18A - The letter was read requesting said vacation in order to sell a
single family dwelling now occupying portions of two of the lots. The request
has been seen by the Borough Attorney, City Manager and Kodiak Electric.
Associations and no objections were voiced. The City recommended approa1 of
the request. Mr. Conttance roved for a public hearing to be held on the reque
at the next regular meeting, secondeTty Mr. Edris. Motion passed by unanimou
roll call vote.
C. Vacation Request and Replat of Lots 33 & 34, Airpark Subdivision - to be Lots:
33A,34A, 35, 36, & 37, Billimeck (Case 245-A). Letter stating the request
was read in full. The area is zoned business/commercial and the subdivision,
of the lots will still leave each lot, with an area of 20,000 squarefeet with
the exception of one lot that will be about 19,000 square feet:- Mr. Constance
moved for a public hearing to be held at the next regular PO meeting, seconde
by Mr. Holt. Motion passed by unanimous roll call vote.
D. Variance Set-Back Request - Block 55, Lot 4 - William Russell (Case 244-A)
A letter was read from Mr. Russell stating that due to the physical features :
of the lot it would require a-large amount of money to develop that area for
building. Mr. Russell asked that a variance be given.to allaghtn to build ,
closer to the road-right-of-way. The request had been submitted to the lawyer
and he had several points in question, concerning the side yard and thei:
front yard on a state highway. Further information OM be:gained froWthe
lawyer concerning this. Mr. Holt moved for a public hearing to be heloCat the
next regular meeting, seconded by Mr. Constance. Motion passed tvemonimces
roll call vote. Mr. Russell was in the audience to answer any questions and
' the Cemmission members indicated that they would be out to go over the propert
•
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•
KODIAK ISLAND BOROUGH
DATE:
TO:
FROM:
SuBj;
RE;
,117 E M 0_12 A N D LI III
7, December 78
Case File #78-,075 & 78-076
p & Z Department
Anita Newell, Secretary
Railing List for Public Hearing Notice
P & Z public Hearing held December 20, 1978
The. attached list of names were sent public hearing notices
for the October ,18th. public hearing, and as used to send another
public bearing notice for the P & Z Regular meeting being held on
December 20, 1978, ,The following property owners were also sent
public hearing notices for the December 20th meeting due to the
fact that an ,added parcel of property was added to the previous
piece petitioned. Those names are also .follows:
KODIAK TOWNSITE
block 2:
--Lot 1 State. of Alaska (Old Griffin Building) Box 1187 Kodiak 99615
Aots:243 2:Queen Fisheries-, Inc, Box 1637, Kodiak 99615
-Lot 3A City. of Kodiak Box 1397 Kodiak 99615
ERSKINE'SUBDIVTSION.
Block '3:
-Lot 30 W14.am schwaah Box 2812 Kodiak 99615
Block. 17:
-.Lot 1 Community Baptigt-Chnrch_ . BaX. 887 Kodiak 99615
Block 8i
VLot 134 Jerry Byler
iLot 135 ..george-panameroff
• Box 1591 Kodiak 99615
Box 123 'Kodiak 99615
.PLENOTE: ERSKINE>SUBb.„ Block 6, Lot 14, has new
owner; /Daniel Washburn .& Kay;McilasterV Box 257 Kodiak, Alaska 99615,
A total of 68 notices-were sent out December 7, 1978
•
usARI _787075 78.7,u/6 Sunset Development
Erskine Subdivision, Block 2; Lot 39, USS 2537, Tract A
and USS 562
Public Notices were mailed out October 11, 1978 to the following persons:
(of which there were 68 in all)
NEW KODIAK TOWNSITE
Block 17:
,./,Lot 2A
VLot 3
A.S.H.A. Box 80 Anchorage, Alaska 99510
State of Alaska
Dept. of Public Works Pouch Z Juneau, Alaska
KODIAK TOWNSITE
Block 1:
''Lot 18A & B Larry Shaw Box 1441 Kodiak, Alaska 99615
V'ot 19 & 20 Phillip E. Ferris Box 331 Kodiak, Alaska 99615
,Lot Pt. 21 Mervin Brun Box 1662 Kodiak, Alaska 99615
)/Lot Pt. 21 Fred & Alex Zharoff Box 405 Kodiak, Alaska 99615
VLot 22 John Rogers ,- Box 252 Kodiak, Alaska 99615
'Lot 23 Cecil Hartman Box 1123 Kodiak, Alaska 99615
(Lot 24 East Point Seafoods Box 1637 Kodiak, Alaska 99615
hot 25 John & Mary Chya Box 994 Kodiak, Alaska 99615
VLot 26 William Hartman Box 2787 Kodiak, Alaska 99615
VLots 30, 30A, 30E
Emil Christofferson Box 196 Kodiak, Alaska 99615
'/Lot 30 B Steven R. Carvalho Box 2552 Kodiak, Alaska 99615
hot 30 C Otto G. Mahle. Box 2016 Kodiak, Alaska 99615
VLot 30 D Louis Tani & Fred Brechanr'
Box 1275 Kodiak, Alaska 99615
Block 2:
1/Lot 2 & 3 George Borsody
Viot 3 A City of Kodiak
Box 1251 Kodiak, Alaska 99615
Box 1397 Kodiak, Alaska 99615
Block 3:
VLot Pt. 8 Charles Nims Box 701 Kodiak, Alaska 99615
"Lot Pt. 8 Community Baptist Church
Box 887 Kodiak, Alaska 99615
v1Lot 9 Rosita Agarin Gen. Del. Kodiak, Alaska 99615
(Lots 10, 10 A Dave Bean Box 2161 Kodiak, Alaska 99615
%/Lot 11 VCraig J. Bishop & Ralph Papettil
Box 753 Kodiak, Alaska 99615
Block 8:
VLot 7
Wilton White
U.S.S. 444, TRACT C
VWiIIidifi Simeonoff
1/William Hartman
V Bert & Sue Lee
YWalter Muller
‘St. Hermans - Pastoral School
NliGeorge Torgramsen
-Russian Orthodox Church
Box 254 Kodiak, Alaska 99615
Box 53 Kodiak, Alaska 99615
Box 277 Kodiak, Alaska 99615
Box 1001 Kodiak, Alaska 99615
Box 313 Kodiak, Alaska 99615
Box 55 Kodiak, Alaska 99615
Box 1192 Kodiak, Alaska 99615
Box 55 Kodiak, Alaska 99615
U.S.S. 444, TRACT A
Russian Church Box 55
VLot B Standard Oil of California
Box 3498 San Francisco, Ca. 94120
Juneau, Alaska
Kodiak, Alaska 99615
-Lot C
-Lot D
State of Alaska
Standard Oil of California
Box 3498 San Francisco, Ca. 94120
U.S.S. 2537 B-- TRACT A
V Sunset Development Company
Box 1275 Kodiak, Alaska 99615
U.S.S. 2538, Pt. TRACT.B
V United States Fish & Wildlife Box 825 Kodiak, Alaska 99615
Page 2
ERSKINE SUBDIVISION.
Block 2:
✓ Lot 23 & 24 Peter Ramaglia :Box1335 Kodiak, Alaska 99615
vLot 25 Phillip V. Bigson Box 1005 Kodiak, Alaska 99615
.-.Lot 39 Sunset Development Co. Box 1275 Kodiak, Alaska 99615
Block 3:
ti/ Lot 26 John Waller
VLot 27 & 28 Mike Fitzgerald
%/ Lot 29 William & Jean Schwaab
Block 5:
\/Lot 15 Timothy Abena
` /Lots 16, 17 & :18
"Edith Wiley
'Lot 19 B Knox N. Christie
-Block 6:
Lot 8 & 9 Lorraine T. Dayton
jLot 10
VLot 11
yLot-12
/Lot 13
-Lot----l4 -
\Lot 15
'VLot 86
'JLot 87
l/Lot 88
V
AF'` ) Lot 14
V William J. Van Ardent
Gary G. Poll
Stanley Nelson
Delores_Padilla c/o
Ni Mrs. Tom Gallagher
Bertha Thomson Pratt
June — Wilson
Gary Stevens
William Mackey
August Heitman
Richard Snyder
B.E. Nachtweih:._ c/o
(new owner) Washburn
Block 7: •
VLot 54 Neil Sargin
—Lot 55 Community_ Baptist Ch.
✓Lot 56 & 57 Jack. -- Mann___..
Lot 152 Lloyd Cannon
d Lot 153 V1 Lawrence M. Malloy &
Nancy R. Frost
Pt. Block 74 Mrs. Kenneth Andrews
Box 1651 Kodiak, Alaska 99615
Box 447 Kodiak, Alaska_99615
Box 2812 Kodiak, Alaska 99615
Box 1457 Kodiak, Alaska 99615
Box 446 Kodiak, Alaska 99615
Box 801 Kodiak, Alaska 99615
3115 Princeton Way
Anchorage, Alaska 99504
Box 33 Kodiak, Alaska 99619
Box 324 Kodiak, Alaska 99615
Box 734 Kodiak, Alaska 99615
Box 734 Kodiak, Alaska 99615
Box 242 Kodiak, Alaska 99615
Box 257 Kodiak; Alaska 99615 -
Box 201 Kodiak, Alaska 99615
Gen. Del.. Kodiak, Alaska99615
Box 356 Kodiak, Alaska 99615
Box 2021 Kodiak, Alaska 99615
Box 2021 Kodiak, Alaska 99615
Box 2151 Kodiak, Alaska 99615
Box 121 Kodiak, Alaska 99615
Box 887 Kodiak, Alaska 99615
Box 245 Kodiak, Alaska 99615
Box 585 Kodiak, Alaska 99615
Box 2034 Kodiak, Alaska 99615
25 DeWolfe St. Cambridge, Mass. 02138
i Robert Mahoney
Cole, Hartig, Rhodes, Norman & Mahoney
Suite 201, 717 "K" Street
Anchorage, Alaska 99501