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ERSKINE ADD BK 9 LT 106 - Exception (3)KODIAK ISLAND BOROUGH Case No. PLANNING & ZONING REQUEST APPLICA'T'ION Date Application Fee Paid Final Disposition Remarks -.-Lc.cn.\ o-- Type of Request Z.t U_ R y flem Description of Land: Addition '/- k/ h- Survey No. Block 9 Lots 1 D S'-' 91--/O‘ Person Submitting Application 0_,LA--z� , "'L -C • Mailing Address 6- "7) 9 Covering Letter Submitted Plat Submitted Person or Representative to Attend Meeting Present Zoning Proposed Zoning Reason for Request 0//)i), tc" Approved Remarks Not Approved Z % % 3 t„7 Remarks Borough Assembly Approval Remarks /q0—f (0 -- (Aiv-vc_t_t_AAJ-Lel i • TELEPHONE 486-5769 • ROY H. MADSEN ATTORNEY AT LAW BRECHAN BUILDING KODIAK, ALASKA 99615 September 13, 1968 Kodiak Island Borough P.O. •Box 1246 Kodiak, Alaska Gentlemen: 141,11 91 MAILING ADDRESS: P. 0.130X 726 i<7.0dia2 1g/and Borou Kooi.4K ALASKA - RECEIR'EP 1, 3 RE: Kodiak Island Borough vs. Chris Berg, Inc. 67-885 B. . Please be advised that the Superior Court will be in Kodiak on Monday, September 16. Will you please check with a definite time for you to RHM: our Office around 9:15 so appear can be arranged. Very truly yours, di fin()6.6-StAiVe/9.) ROY H MADSEN Attorney at Law - A PLANNING & ZONING COMMISSION MEETING - August 28, 1968 2 VIII SUBDIVISIONS, PRELIMINARY - None -IX SUBDIVISIONS, FINAL - None , -7- X OLD BUSINESS - None XI PLANNING & STAFF ITEM A. Resignation .of Edith Longmire. Mrs. Longmire's resignation letter was read. Mrs. Longmire stated that she would be out of town on vacation for three months, and she felt it was unfair to the people of the community to hold a seat vacant for that time, especially since at times it might cause lack of a quorum , to be present. The Commission felt that rather than require Mrs. Longmire to resign, an additional member should be appointed to the Commission. Mr. Haney moved, seconded bv Mr. Welch, that Mrs. Longmire's resignation be turned down,' and that the Borough Chairman be requested to appoint a seventh member to the Commission. Motion carried by unanimous roll call vote, with Mts. Longmire . abstaining. A list of suggested names for a new member was submitted for the, Borough Chairman's perusal. B. Expiration of Commissioners' Terms. A chart was distributed to the Commissioners which outlines the expiration date of each term. The terms of Mr. Weller and Mr. Welch expire on August 30, 1969. The terms of Mr. Wallace and Mr. Brothers expire on August 30, 1968, and they will be re-appointed for three years. Mr. Haney's and Mrs.Lbngmire's terms expire August 30, 1970. XII AUDIENCE COMENTS Stansbury re Chris Berg Apartments. Mt. Stansbury reported that a temporary injunction, effective September 1 or 5, had been issued against the units that were in violation of the ordinance, and that they would have to be vacated by that time. On September 15 the Judge Will decide whether or not to issue a permanent injunction. Mr. Stansbury felt that it was not reasonable' to have to wait two and one-half years to see the ordinance enforced, as happened in this case, since it jeopardizes the integrity of the ordinance. B. Housing in Kodiak. Mks. Longmire asked if there was still such a critical housing shortage. Mt. Stansbury felt that it is not as bad as it was one year ago. The list of applicants for Aleutian Homes is now down to 60 names. ' He stated that there has been considerable interest by developers to construct multiple housing units here. The Investment Development Corp. of Seattle, which recently purchased Cedar Homes, has expressed an interest in the R-3 - area of Kadiak SUbdivision, Also, ASHA has approaced the City Council about , constructing middle or low income housing inside the project area. They are Able to borrow money at 4% interest. XIII ADJOURWMT - The meeting adjourned at 9:45 p.m. APRPOVED 1 a11er, Chairman Respectfully submitted, .Sally Hendrix, Secretary „, • KODIAK ISLAND BOROUGH PLANNING & ZONING COMMISSION MEETING - February 7, 1968 CALL TO ORDER The meeting was called to order at 7;40 p.m. by Chairman Waller in the Magistrate's, Courtrom, Donnelley Building, 'Kodiak, Alaska. II ROLL CALL Present Absent John Waller, Chairman Phil Anderson Ed Haney Ernie Brothers Harry Wallace John Welch Also Present; Acting City Manager Ray Burt; Assemblywoman Jo Hajdu; Assemblyman Dori Bullock; and 3 people in the audience. III mmurEs OF PREVIOUS hEETINGS A. Regular - 1/24/68. Mr. Haney moved, seconded by Mr. Welch, that the minutes be approved as written. Motion carried by unanircus voice vote. IV 011ERLIIIIIES A. Assembly - 2/1/68. There were no cements. V CORPESPONDINM - PEOPLE TO BE HEARD 1-------" A. Letter from Clint Crow of Chris Berg, Inc; - Info Only. Letter was read Apartments in order to comply with the Zoning regulatIone. stating that notice to vacate had been sent to the tenants . of the Chris Berg VI PUBLIC HEARINGS A. Vacation and Replat of Blocks 4 and 5, Port Lions Subdivision - Wakefield Fisheries (Case 190-A). Letter of approval from the Port Lions City Council was read. Mr. Haney moved, Seconded by Mt. Wallace, that the vacation and replat be approved. Meeting was recessed and hearing opened. There were no comments and hearing was closed and meeting reconvened. Motion carried by unanimous voice vote. VII ZONING ITEMS PRIIIMINABY REVIEW A. Designation of Roslyn Beach at Isthmus Bay for Public Recreation. Minutes of the last Assembly meeting were read indicating the Assembly's desire to designate this area for public recreation. Mts. Hajdu explained that the State had received an application from someone desiring to put a tourist lodge there, but the Assembly felt that the area should not be used for this purpose. Mr. Haney moved, seconded by Mr. Welch, that it be recommended to tf.n Vnt is:114.q.area be elry7'.gn?.tel for public recrePtional use. Motion carried by unanimous 'Voice vote. B. Zoning of Shuyak Island. Assembly minutes were read in which the proposed timber sale at Big Bay was discussed. The State had recommended that the entire island be classified as timber. Portions could then be reclassified later for disposal. It was pointed out that the timber must be harvested within seven years or it will be rotted out and worthless. A question was raised as to why the entire island should be classified as timber. The Commission also questioned selection of the timber sale area', since it might be expensive for the Borough to police the area and provide other needed services. It was decided that since the Borough ordinance has no timber classification, that Unclassified zoning, with an exception granted for the timber sale, would be the only appropr te zoning. Mt. Haney moved, seconded Mr. Welch, that it be i'li to t'1,7.1 Assembly that the whole island be classified 'Unclassified." Motion carried by unanimous voice vote. C. Designation of School Site at Chiniak. Assembly minutes were read stating that the State had recommended a site outside of USS 3474, the survey which is to be sold, since the lots within the survey are all on a high bluff and unsuitable for a school site. However, the Commission felt that a site near the beach would not be suitable either because of the danger of tidal waves. No suitable map was available. ht. Haney moved, seconded by Mr. Welch, that this item be tabled pending receipt of further information and maps. Motion carried by unanimous voice vote. CHRIS BERG, Inc. HOME OFFICE: 2730 WESTLAKE AVENUE N. • SEATTLE 9, WASHINGTON • PHONE: ATwater 3-7511 YARD AND OFFICES: 2530 POST ROAD, ANCHORAGE • RAILROAD INDUSTRIAL AREA, FAIRBANKS Reply To: P.O. Box Wr - Anchorage, Alaska - Phone: BR6-5871 or BR5-3641 99501 Mr o J.L. Stansbury '11 Kodiak. Nand Borough Koo,AK, ALASKA RECEIVED JAN 2 9 1968 Building Inspector AM PM Box 1246 ,718191g11112,11213141516 Kodiak, klaska 99615 A Dear Sir: January 26, 1968 This will acknowledge receipt of your certified letter dated January 22, 1968. Please be advised thqt a copy of your letter along with a notice to vacate has been sent to Mr. Harold Altman, tenant of subject building. (Copy of letter to Altman attached). Mr. Altman is a member of the Armed Forces and stationed at Kodiak Navy Station. I am sure you are aware that tenants are somewhat protected by law against immediate eviction from their hone. Therefore I cannot guarantee that your ten day ultimatum can be mete I will however assure you that the place will be vacated as soon as is legaly possiblee If you have any suggestions as to how we can legal,' enforce eviction if the tenant within ten days time please so advise. cc: CBI Anchorage CBI Seattle Very truly yours, Chris Berg jac. Clinton Fe r Company Representative Mr. Harold Altman Box L Kodiak Navy Station, Alaska Dear Mr. Altman: .26, 196 Attached please find 'a copy of a letter we have received from Mr. J.L. Stansbury, Building 'Inspector in Kodiak. As you can see it leaves us no alternative except to vacate the lower level apartment unit. As a result of the above letter, we are forced to give you notice to vacate Apt. 10 &3. soon as possible. As you will note in the attached letter, the building inspector has only allowed ten days in which to vacate the unit. to are very sorry to have to serve this notice upon you as you _ye. been a moat desireable tenant. If we can.be of any service to you in helping you relocate please do not hesitate in.letting us know. Very truly yours, .Chris Berg Inc. Clinton F, Crow cc: CFI .Seattle °CBI Anchorage January 22, 1968'.. C E R T I F I E D ' , Mr. Clinton: F. Craw: . Chris. Berg; Inc.• - Box 2486 Kodiak;- Alas1 a- iKr. Crc You are hereby notified that the request for an exeention to allow two triplexes in an R -2 zone has been denied by both the Planning & Zoning Cox mission and the Kodiak Island Borough Assembly. Youaare now occupying one or both of slid buildings in viola- tion of the Zoning Ordinance., is letter as notice . to cease and desist the occupancy th ancy :of these buildings' as three dwelling tin its. hie will require the lower level of these triplex units,. located. on Carolyn Avenue, to be vacated within: ten (10) days of this notice. Your cooperation will, avoid further action. Yours very 'truly J. L.' gtansbury Llding Inspector INSTRUCTIONS TO DELIVERING EMPLOYEE ❑Show to whom, date, and Deliver ONLY address where delivered ❑ to addressee (Additional charges required for these services) RECEIPT Received the numbered article described below. REGISTERED NO. SIGNATURE OR NAME OF ADDRESSEE (Must always befitted is) 1 CERTGiFIED NO ;` INSURED N0. 1 i DATE DELIVERED X 'Mt?, C A)' FFCArrT,. SIGNATURE OF ADDRESSEE'S AGENT, IF ANY SHOW'WHEtt DELIVERED (only if requested) c85- 16—T1848 -10 OP° RECEIPT FOR-CERTIFIED MAI a¢ SENT TO� - "`-,^ ^ ,�}-'l/'^ /" "L .. POSTMARK, • OR DATE. • :� ,- ' - - - - STREET ANDJ O '^� .. -. - 1 3 d �l G,- C P. O., STATE, AND ZIP C EXTRA SERVICES • R ADDITIONAL ' '.Retum ReeeIPt• tl,�. ,:...:.: Shows to whom Shows to whom, r ,andan date date, and where de 'vered ' delivered ILL 10¢ fee ❑ 33 fee :F'EE'D err ' ' ' -: Deliver''to - Addressee Only - ' - —� .- _ . fee- POD form 3800 NO' INSURANCE COVERAGE PROVIDE Mar. 1966 NOT FOR INTERNATIONAL MAIL (See other side) TO RDY FROM „KODIAK ISLAND BOROUGH • O.:BOX 1246 KODIAK,'ALASKA 99615 SUBJECT.: CHRIS BERG CASE FOLD DATE: 12/28/67 of of 041 o •" II El I 1 0 L " • concurrence with the_decision. Now what? Mr. Crow still intends to -submit the other necessary papers to apply for a variance. He feels this is_ required by the court, but it's not, is it? Thaiatrs PLEASE REPLY TO SIGNED Sally DATE SIGNED THIS COPY RETAINED BY PERSON ADDRESSED / ASSEMBLY NIEETING - Decdr 21, 1967 2 D. Letter from Jerry Pearson re Penalty and Interest on Taxes. Letter was read stating that it was Mr. Pearson's understanding that the Borough had granted a time extension on payment of these taxes while his father's estate was being settled, and that he should not be liable for penalty and interest. Mrs. Hajdu stated that the State and Federal governments do grant extensions on deadlines and waive penalties if applications are properly made. Mr. Barr moved, seconded by Mr. Bullock, that action on this matter and the following item on the agenda be tabled pending a formal opinion from the attorney on the whole matter of forgiveness of taxes, penalty and interest on taxes. Motion carried by unanimous voice vote. E. Letter from Mrs. R. C. Wilson re Penalty and Interest on Taxes. This item was tabled by motion under Item II-D. VI PUBLIC HEARINGS - None VII PLANNING & ZONING ITEMS A. Concurrence with or Overruling of P &Z Decision re Chris Berg, Inc. Request for Exception, Erskine Subdivision Bik 9 Lots 105 and 106 (Case 1 -K). The decisio that the exception be denied was read. Mr. Bullock moved, seconded by Mrs. Springhill, that the Assembly concur with the decision of the Planning & Zo Commission. Mr. Crow stated that if the exception and variance are denied, there are several people in the area interested in asking for a rezoning. Mr. Barr and Mrs. Hajdu stated that they would like to see this request made. Motion carried by unanimous roll call vote. B. Resolution 67 -36 -R Approving Subdivision of Tract B into Lots B -1 and B-2, USS 3218 - Peter Marinkovich (Case 1$5 -A). The resolution was read. Mrs.Bullock moved for its adoption, seconded by Mrs. Springhill. Mr. Barr stated that the plat as it now exists would not meet the requirements of the subdivision ordinance, and that although the subdivision itself does not meet the require- ments, the plat should at least be re -done to meet the requirements. Mrs. Springhill moved, seconded by Mr. Arndt, that action on the motion be tabled pending preparation of a proper plat under present Borough ordinances. Motion carried by unanimous voice vote. C. Resolution 67 -35 -R Approving Final Plat of Subdivision, Holland Acres First Addition, Bik 1, Lots 1 and 2 - Argo Corp. (Case 172 -C). The resolution was read and plat studied. Mr. Barr moved that the resolution be approved, seconded by Mrs. Springhill. Motion carried by unanimous roll call vote. D. Recommendation from P &Z re Rezoning of Thorsheim Subdivision Lots 20 -25 from R -3 to Business. Recommendation was read. These are the lots on which the Shelikof Hotel is located. Mrs. Hajdu felt that Lots 26 -28, the Cannon apartments, should be included, or else it would be left as a small island of R -3 in the area. Mrs. Springhill moved, seconded by Mr. Barr, that the attorney be requested to draw up an ordinance rezoning Lots 20 -28, Thorsheim Subdivision, from R -3 to Business. The Assembly requested that the Cannons be contacted first to make sure they have no objections to the rezoning. Motion carried by unanimous roll call vote. VIII OLD BUSINESS A. Ordinance 67 -21 -0 Approving Supplemental Budget - ACS Trailer Court Funds. Mr. Barr moved for adoption of the ordinance in the first reading, seconded by Mrs. Springhill. The ordinance was read. It was felt that the ordinance did not properly follow the motion made by Mrs. Hajdu at the September 21st meeting, as amended, nor is it a continuing ordinance to continue over the life of the income as suggested by Mr. Hedla. Motion failed by unanimous roll call vote. Mrs. Springhill made a motion, seconded by Mr. Barr, that the ordinance be re- written to include the intent of the amendment to the original motion made by Mrs. Hajdu on September 21st. Motion carried by unanimous roll call vote. B. Ordinance 67 -20 -0 Approving Supplementary School Board Budget. Ordinance was read by title only. Mrs. Springhill moved, seconded by Mr. Barr, that the ordinance be adopted in the first reading. Mr. Bullock, Mrs. Springhill, and Mr. Stansbury felt that all of the money collected from the ACS trailer court rentals had originally been intended for use toward the I Street Playground, and that none should.- be used for the Ouzinkie playground, as proposed by the School Board. Mrs. Hajdu and Mr. Barr felt that the obligation is to the whole Borough, and that the $2000 proposed for Ouzinkie should be used for that purpose. Mr. Best felt that if the money was intended to be used in the local area only, that the Borough is morally obligated to use it only for I Street. Mr. Barr suggested that the ACS court funds be used for I Street and another source be found for the Ouzinkie playground money. The tape of the Assembly DECISION December 13, 1967 RE: REQUEST BY CHRIS BERG, INC. FOR AN EXCEPTION OR VARIANCE DOR THREE-UNIT APARTMENTS IN R-2 ZONE, ERSKINE SUBDIVISION, BLOCK 9, LOTS 105 AND 106, UNDER CHAPTER 5, SECTION 21, KODIAK ISLAND BOROUGH CODE OF ORDINANCES AND RESOLUTIONS First considering the application as one for a variance as provided in Chapter 5, Section 21, it does not contain a plot plan as required by C.1(A)(2), neither does it contain a statement and adequate evidence showing the following conditions, all four of which must exist before a variance may be granted: (1) 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) The strict application of the provisions of this sub- chapter would result in practical difficulties or unnecessary hardship. (3) 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. (4) The granting of the variance will not be contrary to the objectives of tte Comprehensive Plan. Further, Chapter 5, Section 5.0.2(c) requires a triplex to be placed on a lot which contains 2400 square feet per unit, or 7200 square feet. Each of the lots in question are only 5000 square feet. The graating of this variance would be prejudicial to the other properties in the vicinity. The application viewed as one for a variance does not show how the application of the Kodiak Island Borough Planning and Zoning Ordinance would result in practical difficulty or unnecessary hardship that would deprive the property concerned of rights possessed by other properties in the same district. Therefore, it is the decision of the Kodiak Island Borough Planning and Zoning Commission that this application for a variance does not meet the requirements of the ordinance for the granting of variances. Secondly, we have considered the application as one for an exception for an additional use as provided in the ordinance. The request is for the use of two buildings, the application for which and building permits issued therefore were for two duplex units which are located in an area zoned R72-.- The applicant is now requesting an Exception intthis instance for the ;4. conversion and use of these buildings as triplexes.' Decision December 13, 1967 Chapter 5, Sub-Chapter 2, Section 5.A.2 of the Borough, Code, which defines Residential (R) zones, provides for three types: R-1, limited to one family dwellings; R-2 with the permitted use being limited to one and two family dwellings and R-3, permiDtiegbert16#106Tamily dwellings. To approve the use of this property for multiple dwellings in an R-2 area would be giving to a single owner of a small area privileges which are not extended to other land in the vicinity. The only benefit to be derived would be to Chris Berg, Inc., the owner of the property rezoned, and this would be to ignore the effect the change would have upon the general plan of zoning in the community. This is against public policy and obnoxious to the law as "Spot Zoning," since "Additional" or "Special Uses" are expressly prohibited in R-1 and R-2 districts, otherwise the language in Section 5 has no meaniflg. Section 5.A.1 provides: 1. R-1 with the permitted use being limited to one family dwellings only. and Section 5.A.2 provides: 2. R-2 with the permitted use being limited to one and two family dwellings. Therefore it is the decision of the Kodiak Island Borough Planning and Zoning Commission that this application for an.exception-must be denied because the granting of this request as an-exception would produce, results inconsistent with the general purposes and.intent of the Borough Planning and Zoning Ordinance, to-wit: by permitting a triplex to exist in an area restricted to single family dwellings or duplexes. OROUGH OrCOMMISSION PLANNING & ZONING MEI - December 13, 1967 X OLD BUSINESS 2 A. Request for Exception or Variance for 3 -Unit Apartments in R -2 Zone - Erskine Subdivision Block 9 Lots 105 and 106 - Chris Berg, Inc. (Case 1 -K). The Building Inspector's report on his investigation of this case, which had been requested by the Commission, was read. The case was reviewed. Mr. Wallace moved, seconded by Mr. Welch, that the request for an exception be denied for the reasons listed in the Building Inspector's report, and that a copy of the report be sent to Chris Berg Inc.'s Representative. Mr. Crow stated that he would appreciate receiving a copy of the report. He said that their submissio of the application was in compliance with a court order, and that if they failed to submit the necessary documents, the court would again return the ca to the Borough. He asked that action on the motion be tabled until the facts having to do with the variance could be submitted. He further stated that an appeal would have to be made if the request were denied. Mr. Wallace pointed out that as Mr. Stansbury's report states, the application must be considered for an exception, not for a variance. After further discussion on this matter, the question was called and motion carried by roll call vote as follows: Mr. Wallace - Yes; Mr. Welch - Yes; Mr. Brothers - No; Mr. Waller - Yes. Mr. Crow agreed to submit a complete application for a variance at the next meeting. XI PLANNING & STAFF ITEMS A. Discussion of Suggested Procedures. The proposed procedures were reviewed. It was suggested that the deadline for submission of items to be included on the agenda be set at 5:00 p.m. on the Wednesday preceding the meeting. This will allow a week for information and data to be sent to the Commissioners for their review. In addition, it was agreed that before any cases are considered, the applications should be reviewed by Mr. Madsen to determine that they are legally correct. Mr. Wallace moved, seconded by Mr. Brothers, that it be included in the .appropriate place in the procedures that proper applications must be submitted for all requests and must be approved by the attorney to determine that they are legally correct before they are reviewed by the Commission. motion carried by unanimous roll call vote. The procedures will be re-written and submitted for further action at the next meeting. B. Long -Range Planning for Business Districts. Mr. Waller stated that the Comprehensive Planning Committee had requested the P &Z Commission to present them with problems concerned with future planning for business areas. The recommendations previously made were reviewed for changing the following areas to Business: Allman Addition, Blocks 1, 2 and 3, now zoned R -1; all of the Allman Lalande Subdivision, and Block 6 of Airpark Subdivision, now zoned Unclassified; Erskine Subdivision, Blocks 1, 2 and 3; now zoned R -3; the remainder of Townsite Block 1 which is now zoned R -2 and R -3; USS 444 Tract C, now R -3; Game Commission Reserve, now R -3; USS 1995, now R -3; the remainder of East Addn Block 33 which is now zoned R -2; East Addn Bik 34, now zoned R-2. Property further out Mission Road had also been originally recommended for rezoning to Business, but at a subsequent joint meeting with the Assembly, it had been agreed to include only the area of the platted Tagura Road. Mr. Waller will present these ideas to the next Comprehensive Planning Committee meeting. A discussion was also held concerning the zoning of the Shelikof Lodge property. It was felt that this property should be rezoned to Business:,from R -3, and that this could be done now, since the property is being used for a business, and since it is surrounded by business property, except in back of it. It was decided to recommend this change to the Assembly without a public hearing. Mr., Wallace moved, seconded by Mr. Welch, that the Planning & Zoning Commission recommends, on its own initiative, that Lots 20 through 25, Thorsheim Subdivision, be rezoned from R -3 to Business. Motion carried by unanimous roll call vote. C. Mr. Stansbury re Fire Zones. Mr. Stansbury stated that the fire code requires that a fire zoning map be on record, and that none has ever been made. The City does not have a fire zone 1 because this requires 2 -hour fire protection consisting of solid masonry, and the cost is prohibitive. Mr. Stansbury is going to recommend that zone 2 coesist of all Business, Industrial, R -2 and R -3 areas, and zone 3 include all R-1 areas. In Zone 3, 1 -hour protection would be required only if a building is constructed less than 3 feet from an adjacent building. Mr. Stansbury till present the map at the net meeting. XII AUDIENCE COMMENTS - None XIII ADJOURNMENT - The meeting adjourned at 10:00 p.m. MEMORANDUM December 13, 1967 TO: •Planning & Zoning Commission FROM: Building Inspector- SUBJ: INVESTIGAilON OF REQUEST BY CHRIS BERG, INC. FOR. AN EXCEPTION OR • .VARIANCE FOR THREE-UNIT APARTMENTS IN-R2 ZONE, ERSKINE SUBDIVISION, BLOCK 9, LOTS 105 AND 106, UNDER R 5, SECTION 21, KODIAK ISLAND BOROUGH CODE OF ORDINANCES AND RESOLUTIONS I have investigated subject request and hereby report as follows: First considering the application as one for a Variance as provided in Chapter 5, Section 21, it does not contain a plot plan as required by C.1(A)(2), neither does it contain a statement and adequate evidence showing the following conditions, all four of which must exist before a variance may be granted: (1) 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) The strict application of the provisions of this sub- chapter would result in practical difficulties or unnecessary hardship. (3) 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. (4) The granting of the variance will not be contrary to the objectives of the Comprehensive Plan. Further, Chapter 5, Section 5.C.2(c) requires a triplex to be placed on a lot which contains 2400 square feet per unit, or 7200 square feet. Each of the lots in question are only 5000 square feet. The granting of this variance would be prejudicial to the other properties in the vicinity. The application viewed as one for a variance does not show how the applica- tion of the Kodiak Island Borough Planning and Zoning Ordinance would result in practical difficulty or unnecessary hardship that would deprive the property concerned of rights possessed by other properties in the same district. Secondly, I have considered the application as one for an exception for an additional use as provided in the ordinance. The request is for the use of two buildings, the application for which and building permits issued therefore were for two duplex units which are located in an area zoned R-2. The applicant is now requesting an Exception in this instance for the conversion and use of these buildings as triplexes. Planning & Zoning Commission Chapter 5, Sub - Chapter 2, Section 5.A.2 of the Borough Code, which defines Residential (R) zones, provides for three types: R -1, limited to one family dwellings; R -2 with the permitted use being limited to one and two family dwellings and R -3, permitting multiple family dwellings. To approve the use of this property for multiple dwellings in an R -2 area would be giving to a single owner of a small area privileges which are not extended to other land in the vicinity.. The only benefit to be derived would be to Chris Berg, Inc., the owner of the property rezoned, and this would be to ignore the effect the change would have upon the general plan of zoning in the community. This is against public policy and obnoxious to the law as "Spot Zoning," since "additional" or "Special Uses" are expressly prohibited in R -1 and R -2 districts, . otherwise the language in Section 5 has no meaning. - Section 5.A.1 provides: 1. R -1 with the permitted use being limited to one family dwellings only and Section 5.A.2 provides: 2. R -2 with the permitted use being limited to one and two family dwellings. The granting of this request as an exception would produce results inconsistent with the general purposes and intent of the Borough Planning and Zoning Ordinance, to -wit: by permitting a triplex to exist in an area restricted to single family dwellings or duplexes. JTS /sh J. L. Stansbury . Building Inspector P&Z MEETING - Novemblik 1967 2 the lots would have to beblassified as Unclassified, since they are two small for Conservation. Mr. Wailer made a motion, seconded by Mr. Haney, that it be recommended to the Assembly that the State classification of Private Recreation be approved for these lets. Motion carried by unanimous roll call vote. VI PUBLIC HEARINGS - None VII ZONING ITEMS - PRELIMINARY REVIEW f A. Request for Exception for 3-Unit Apartments in R-2 Zone - Erskine Elk 9 Lots 105 and 106 - Chris Berg, Inc. (Case 1-K). The application letter was read. W. Hansen stated that the Commission would take this application under consideration and suggested that the Building Inspector be reqUested to investigate the property and the factors to be considered, and report back to the Commission in writing at the next meeting, as provided in Chapter 5, Section 21 of the Borough Code. A lengthy discussion ensued between the Commission; Clinton Crow, representing Chris Berg, Inc.; Mils. Crow; the Building Ibispector; and Mr. Slater from the audience. W. Waller stated that the buildings were built as duplexes and then were converted into triplexes without proper permission. Mr. Crow acknowledged this, but stated that they wished to obtain permission for full utilization of their buildings, since housing is badly needed. in Kodiak and since this would not be harmful to the neighborhood in any way. Mr. Welch stated that his driveway would have to be used for access if the basement units were used. Mr. Crow said it would not. The previous court findings on the case were read stating that the Commission can grant a special exception if the proper criteria based on the Code is established. Mr. Slater stated that at the time the Chris Berg apartments were constructed, it was expected that the area was going to be rezoned to R-3. It was suggested to Mr. Crow and Mr. Slater that if they wished they could submit a petition requesting a rezoning of the entire area. At the conclusion of the discussion, Mr. Waller moved, seconded by W. Haney, that the Building Inspector be reql.psted to make an investigation on this case to determine if the requested exception will be injurious to public health, safety or welfare or detrimental to other properties or uses in the vicinity, as provided in Chapter 5, Section 21.A.1(15), and report his findings ri to the Commission at the next meeting in writing. Motion carried by unanimous „,.._.. 4011 call vote. , B. Request for Fishermen's Warehouse in Unclassified Zone - Holland Acres - Art Zimmer. This item was tabled due to W. Zimmer's absence. VIII SUBDIVISIONS, PRELIMINARY A. Approval of Replat of Blks !rand 5, Port Lions Subdivision, for Advertising for Public Hearing - Wakefield Fisheries (Case 190-A). The plat was studied. It was noted that dotted lines should be added showing the boundaries of the former lots. Mr. Best's office had reviewed the plat and approved it, subject to adding "Vacation" to the title, thus indicating both a vacation and replat. The procedure required for a vacation as listed in the State Statutes will have to be followed. It was explained that the vacation of the platted street and the replat of the street nearby had been requested because the street had actually been developed outside of the originally platted area. Mr. Waller moved, seconded by W. Valley, that the plat be approved for public hearing on the vacation. Motion carried by unanimous roll call vote. It was also pointed out that a letter of non-objection from the City of Port Lions will be necessary. B. Re-Subdivision of Blk 3 Lot 11, Port Lions Subdivision - Wakefield Fisheries (Case 191-A). The plat was studied. A question was raised as to whether this subdivision could be legally accomplished, since no one in Port Lions has title to their property. The Code states that those in control of property, as well as pooperty owners, may subdivide their property. Since the people in Port Lions have received promise of title to their property, pending the survey, it was felt that the subdivision can legally be done. The building on Lot 11-B is owned by Wakefield Fisheries. Mr. Waller moved, seconded by Mr. Welch, that the preliminary plat be approved. Motion carried by unanimous roll call vote. C. Approval of Vacation and Replat of Lots 10 and 11, Blk 3 Tbwnsite, for Advertising for Public Hearing -Fred Brechan (Case 60-C). The plat was studied. Mr. Haney moved, seconded by W. Wallace, that the plat be approved for public hearing on the vacation. Motion carried by unanimous roll call vote. • CHRIS BERG, HOME OFFICE: 2730 WESTLAKE AVENUE. N. • SEATTLE 9, WASHINGTON • PHONE: ATwater 3-7511 YARD AND OFFICES 1 2530 POS 0AD, ANCHORAGE • RAILROAD INDUSTRIAL AREA, FAIRBANKS Reply To: P.O. Box - Anchorage, Alaska - Phone : BR6-5871 or BR5-3641 7 * 99501 November 17, 1967 Kodiak Island Planning & Zoning Commission Kodiak Island Borough Kodiak, Alaska. Reference: 'Superior Court Case #67-885 B Kodiak Island Borough vs Chris Berg Inc. Subject: Application Requesting Special Exception or Variance Under Zoning Code. Gentlemen: Please be advised that in complying with the court order in above referenced court case, Chris Berg Inc. here-by makes request for special exception or variance, under the zoning code, on certain properties as here-in-after listed. Those tracts of land owned by Chris Berg Inc. known as and described as Lot 105 and Lot 106, Block 9, located within the Erskine Sub Division of U.S. Survey No. 562, recorded February 17, 1950, in Book RI Page 348, of the Kodiak Recording Precinct, Third Judicial District, State of Alaska. Chris Berg Inc. respectfully requests permission through special exception or variance of the zoning code, to utilize the above described properties for three family dwelling units. The reasons to justify the granting of this request are as follows° 1. The original topography of the properties was a major factor in determining the type and style of buildings to be erected. As is true in most construction projects, the rule of practicality has to govern to a ce&in degree. It was the desire of the owner to erect on each lot, a two story building with the floor of the lower story at street level and each story to be utilized as a three bedroom family living quarters. In order to accomplish this it would have been necessary to construct high retaining walls on the sides and back of the lots. This of course is never too practical and causes added expense to the builder. To eliminate this and to obtain full utilization of the properties, it was decided to construct a basement under the above described buildings. The basement was to be utilized as a furnace room and storage area for tenants. But again due to topography of the land and size of the basement, it was found that there was still ample room to convert a portion of the basement into a sizeable, well lit, modern, one bedroom apart- ment with two private entrances at ground level. fl,A.pplication for exception co ''nued. Let it be remembered that by following planned structures were not altered in width or depth and as it stands today, to size and location on the lots as is ordinance for residential zoning© The family-units will not alter the looks, anyway. the above plan, the original any way in regards to height, meets all requirements in regard required by the local zoning use of the strictus as three size or shape of the buildings in 2. The use of the buildings as three family dwellings, would not in any way be injurious to public health, safety or welfare or detrimental to other properties or uses in the vicinity. 3. There is ample off street parking to accorgdate without congestion, up to nine cars on the property here-in-above described. 40 Sanitation facilities for three family dwelling units are adequate beyond the requirements of the building codes 5. According to the tax records on file at the Kodiak Island Borough, the buildings here-in-above described are listed as three stories, apartments. In as much as the owner is i apparentely being taxed on this basis, he should have full utilization of same. 6. It is common knowledge that there is a critical housing shortage in Kodiak. We have been advised that there is in excess of one hundred fifty applications on file in Kodiak for rental units© We have had many requests from military personel for rental units so they could have their families with them while stationed at Kodiak, In review of the above and taking into consideration all aspects of the situation, it is apparent that utilization of the basement as an apartment will not be injurious to any one nor detrimental to adjoining or surrounding properties© It will not change or alter the size, shape or appearance of the buildings as they now stand, and will more fully allow the owner f1111 utilization of his property. As mentioned before, the buildings do conform to the ordinance in respect to height width, location ace Therefore, the owner asks that the requested exception or variance (whichever is most acceptable) be granted. cc: James M. Fitzgerald Judge, Superior Court cc: Chris Berg Inc. Seattle Chris Berg Inc. Anchorage , Respectfully yours CHRIS BERG INC. Clinton F. Crow Company Representative P&Z MEETING right of way onto the lot. After further discussion, Mr. Haney moved, seconded by Mr. Richmond, that action on this request be tabled until Mr. Kerr can show ownership of the property. Motion carried by unanimous roll call vote. VIII SUBDIVISIONS - PRELIMINARY - None IX SUBDIVISIONS - FINAL A. Hospital Sbudivision - USS 3511 and USS 1822, Lots 1-4 - Borough Initiative (75-B) Plat was reviewed. No changes had been made in the preliminary plat. Mr. Richmond moved, seconded by Mr. Waller, that the plat be approved. Motion carried by unanimous roll call vote. X OLD BUSINESS - None XI PLANNING & STAFF ITEMS A. Mr. Welsh re. Board to Support Building Inspector. Mr. Welch suggested that a board consisting of individuals in the building field be appointed to hear appeals made to condemnations made by the building inspector. It was pointed out that at present appeals to the building inspector's decisions within the City are heard by City Council, and those outside the City are heard by P*Z. However, it was felt that this new board should be created so that people who we experts in the building field could hear the appeals. Mr. Richmond mOved, seconded by Mr. Haney, that this proposal be submitted to the Attorney for his recommendations. Motion carried by unanimous voice vote. XII AUDIENCE COMMENTS A. Building Inspector re 'Chris Berg Apartments. Mr. Stansbury reported that this case had been heard in Superior Court. The attorney for Chris Berg argued that the Assembly did not have the authority to revoke the ekception which P&Z had granted to Chris Berg to use their buildings as triplexes. The Jude gave him 10 days in which to file a brief, and will render a verdict in 45 days. No restraining order was issued in the meantime. XIII ADJOURNMENT - The meeting adjourned at 9:25 p.m. APPROVED: Respectfully submitted, Arne Hansen, Chairman Sally Hendrix, Secretary ROY H. MADS5N DAVID- B. RU 5 KI N LAW OFFICES -OF MADSEN °& RUSK[`N' P. O. BOX 726 KODIAK,ALASKA 99615 - July :13, 1967. , Calendar Clerk Superior Court 941 Fourth Avenue Anchorage, Alaska 99501 • TELEPHONE 486-5769' Re :.- Kodiak Island Borough vs. Chris Berg,. Inc. Civil Action 67.885 B Dear Mary Lee : - The Kodiak Island Borough has previously moved the court for a preliminary injunction restraining the defendant from using certain property- in the City of Kodiak. _ Judge Fitzgerald in his findtngs, dated May 17, 1967, advised the parties -to take action within thirty days, and if no action was taken to again place the matter on the calendar. By letter dated June 1, 1967, the Kodiak Island Borough. requested Chris Berg, Inca to "resubmit your request for . an exception, variance or rezoning to use the basement of the Chris Berg Apartments as living quarters." No action has been .taken by the defendant and the plaintiff _requests . that the matter be set on the calendar for disposition by Judge Fitzgerald. Very truly yours, MADSEN & RUSKIN. DBR :as - . David- B. Ruskin cc: Kodiak Island Borough Box 1246 Kodiak, Alaska James C. Merbs, Attorney for Chris Berg 1026 Fourth Avenue_ Anchorage, Alaska INSTRUCTIONS TO DELIVERING EMPLOYEE kJ\ Show to whom and Show to whom, when, and Deliver ONLY when delivered ❑ address where delivered ❑ to addressee (Additional charges required for these services) RECEIPT Received the numbered article described below. REGISTERED NO. SIGNATURE OR NAME OF ADDRESSEE (Must always befiIkiin) CERTIFIED NO. INSURED NO. SIGNATURE OF ADDRESSEE'S AGENT, IF ANY DA SHOW WHERE DELIVERED (only if revers c55 -16- 71593 -8 GPO RECEIPT FOR CERTIFIED MAI SENT TO r..� . / a —Cam` r �. � J,- POSTMRK OR DATE + ^} STREET AND NO... '. I P, 0., STAT , RD 21' ODE EXTRA SER ICES FOR ADDITIONAL " Return Rein pt - Shows to. whom - S .ws to whom`, ' and date date, and where delivered delivered 10¢ fee ❑ 35¢ fee FEES Deliver to , Addressee Only ❑ 50¢ fee POD Form 3800 NO INSURANCE COVERAGE PROVIDED - - - -( -See other side) - Mar. 1966 NOT FOR INTERNATIONAL MAIL June'l, 1967 Mr. Clint Crow Project Manager Chris Berg, Inc.. Box 2486 - Kodiak, Alaska Bear Mr. Crow: On advice of our legal counsel, it 18 necessary that you resubmit your request for an exception; variance or rezoning.to use the basement of, the Chris Berg Apartments as living quarters. Your request should be directed to the`Kodiak Island Borough Planning & Zoning Commission stating the reasons that you wish the exception, variance or rezoning to be granted. JIS /sh Yours very truly, L. Stansbury Building Inspector OFFICE OF THE CLERK Third District 'ATE 01 -- $9.7.erior Court *ate of ,Alasku THIRD JUDICIAL DISTRICT 941 FOURTH AVENUE ANCHORAGE, ALASKA 99501 May 26, 1967 Kodiak Island Borough Planning & Zoning Commission Kodiak, Alaska Re: Kodiak Island Borough v. Chris Berg, Inc. Our Case No. 67-885 B Dear Sirs: Icoc A-0 kl.4 ED 1967 ii 1,4,1 Enclosed is a copy of the Court's Findings in the above- entitled matter, which were entered on May 17, 1967. I call your attention to the court's instructions beginning on page 5, line 19, for appropriate action. mj encls. Sincerely, A. M. VOKACEK, Clerk By V\I Chief Depity .4- 4 6 7 IN THE SUPERIOR COURT FOR THE STATE OF ALASKA ODIAK ISLAND BOROUGH, vs. CHRIS BERG, INC., THIRD JUDICIAL DISTRICT Plaintiff, Defendant. 9 NO. 67-885 B 10 FINDINGS 11 The Kodiak Island. Borough, a local government unit, seeks to 12 obtain a preliminary injunction against Chris Berg, Inc. The ap- 13 plication came on for hearing this date. Both parties were ably 14 represented. From the papers filed in this case, I find that Chris 15 Berg, Inc., is the owner of Lots 105 and 106, Block 9, Erskine 16 Subdivision, KodiakRecording'Precinct, Third' Judicial District. 17 On the 19th of February, 1965 Chris Berg made an application 18 for a building permit requesting permission to build a two-story 19 building with baseMent upon Lots -105 and 106. The lots are zoned 20 R-2. Chris Berg constructed a two story building upon the lots, 21 complying with R-2 zoning. The topography permitted the construc- Sidle, of . r,slosicQ, Third Disirict MA Y 7 1967 22 24 tion of a large basement however, and in order to use thebasement; Chris Berg undertook to arrange the utilities in the area of the structures so that the structures could be used as a three-family 125 unit. It then circulated a petition to modify-the covenants that I , _ 1 STATE OF ALASKA t / , SUPERIOR ;COURT .-1-* . . ,I, ran with the land and obtained the concurrence of a majority of the lots affected by the covenants. On January'4, 1966 Chris Berg, Inc., and others, made ap- 4 plication to'the Kodiak Island Borough Planning and. Zoning Cominls- 5 to rezone the lots to R-3. On February 7, 1966 a public 6 hearing was held by the Commission, following which the Commission 7 reached a decision to recommend to the Kodiak Island Borough As- 8 that R-2 zoning be retained. On February 16, 1966 Chris 9 Berg and the other property owners interested in zoning the propert- 10 R-3, filed an appeal from the Commission's decision to the Borough. 11 On February 21, 1966 the Commission approved a (temporary) permit 12 for three years, subject to renewal, to allow the use of an apartment in the basement of the structures. The only reason given 14 by the Commission was that a critical housing shortage was noted. 15 According to the papers submitted by Chris Berg, the Kodiak 16 Island Borough Assembly took up the minutes of the Planning and 17 Zoning Commission of February 21, 1966, and reversed the Commission 18 Iria press account, included in Berg's papers, the Commission seems 19 to have been reversed because the Assembly was of the view that 20 property owners in the area, who were opposed to the exception 21 were not given an opportunity to be heard. 22 Examination of all the papers submitted clearly demonstrates 23 substantial failures to comply with the requirements of zoning law. 24 Ordinarily, a variance may be granted upon proofby the 25 property owner of practical difficulty or unnecessary hardship. STATE OF ALASKA SUPERIOR COURT 2 5 7 1.10 11 ;' 12 13 14 15 • 1b 17 18 19 20 21 22 23 24 25 Section 2.(A)(7) has to do with exceptions'within an unclassi- fied zone and is not applicable. Section 20(A) may apply: " The Planning and Zoning Commission shall administer this, ordinance and in so doing may grant exceptions for additional uses in the various districts as specifically provided; shall hear and decide appeals where it is alleged there is an error in- ordinance interpretationU.; and may vary the strict application - of these.regulations in the case of an exceptionally irregular- narrow, shallow or sloping lot or other exceptional physical condition where strict ap- plication would result in practical difficulty or unnecessary hardship that would deprive the ,property concerned of rights possessed by other properties in the same district, but in no other case." Emphasis supplied. However, I do not have the entire zoning ordinance of the Kodiak Island Borough before me and, of course, cannot determine whether other-provisions relating to special exceptions are applicable. In any case it is incumbent upon the body having the power to grant special exceptions to set forth the - factual basis for its determination in such detail as to make it possible for the review- ing court to determine whether the decision conforms to the standar set forth in the ordinance. (See page 54 -29, Chapter 54, Vol.•II, The Law of Zoning and Planning by Rathkopf) "footnote (17) There is no difference in this respect between the powers of the board of appeals when considering an application for a variance and when considering an application for a special exception use. The board acts in the same capacity, i.e.,administratively,in each and must state- its findings and the facts consider - ed by it to support its conclusion in such detail as to enable the court, upon review,to determine whether an arbitrary act or abuse of discretion was involved." Page 54 -29, Chap . 524, Vol. II, The Law of . Zoning and . Planning by. Rathkopf. STATE OF ALASKA . SUPERIOR COURT - -4- s 10 12 13 14 15 ,16 17 ; 1;9 20 21 22 23 24 25 " The reasons of a board of adjustment for granting a variance from a zoning ordinance must be sub- stantial, serious and compelling, and the power is to be exercised only under peculiar and ex-- ceptional 'circumstances in order that zoning law for protection of public rights be not Unduly impaired. Kovacs v. Board of Adjustment of Ross Tp., 95 A.2d 350." Under the circumstances of this case, it would appear that a variance would not be appropriate. Most zoning.ordinances contain provisions for additional uses allowed withinadistrict as special exceptions (use permit). It is within the power of the Zoning Commission or;Board to determine whether the exception applied-ffor meets the criteria established by the zoning ordinance and to determine whether conditions should be attached to render the use harmonious withinthe spirit and intent of the zoning act. Generally; the type of special exceptions which may be per- ! mitted within.a specified district are enumeratedfor that district For instance, the special exceptions for an a-2 District in the Anchorage Zoning Code are: • "Sec. 23.9 R-2; R-2A. Two-Family Residential Districts * * •* Structures and uses required to serve govern- mental, educational, religious; noncommercial recreational, and other needs of such areas are permitted outright within such districts, or are permissible as special exceptions subject to restrictions intended to preserve and protect their residential character." In theLpapers of Chris Berg several sections of the Kodiak Zoning Ordinances are set out. STATE OF ALASKA SUPERIOR COURT • It is, of course, essential that there be a record maintained for in most jurisdictions the court on review will consider only the facts set forth, either in the minutes of the proceedings before the board or in its decision. (See page 54-30, Chap. 54, Vol. I The Law of Zoning and'Planning by Rathkopf) Neither the minutes of the Commission or the Assemby provide sufficient information to determine whether or not the exception sought by Chris Berg ,should have been granted or denied. Nor does the record reflect whether or not the necessary procedures were • 10 complied with. While it is not essential, the Commission or the Assembly should make reference to the source of authority within 12 the zoning ordinance relied upon for the action taken. . 1 It is my understanding from the papers filed by the Borough 1 14 that the structures are now occupied as a three-family residence. 15 However, I am reluctant to issue an injunction without affording 16 the Commission or the Assembly an opportunity to consider the mat- 7 ter in the light of the "views I have expressed,, and to make a 18 decision supported by an adequate record and,findings. 19 Under-the circumstances I have concluded that,the matter 20 should be referred to the Commission for further'proceedings. 21 . The application for preliminary injuction shall be continued 22 pending further action by the Commission orcthe Assembly. If 23 action is not initiated:within thirty (30) days, this proceedings 24 71. 25 ;;„ ; STATE OF ALASKA SUPERIOR COURT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 may be placed upon the daily .. calendar at the request of either party. . MADE AND ENTERED at Anchorage, Alaska, this 17th day of May, 1967.. 4 T i JAMES M. FITZGER Judge, Supe Court STATE OF ALASKA SUPERIOR COURT Iin 4r4ae,.4. --aQ3 4411 -7taA-V 1/4^Pitm_ dtAA., Ct- ceA4 vs.t-C„a ;74.4(f co,v. CP7J Aoi rva-t-0,1 j_ y, SS A 2, kA)-gial g, e An4.11