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SARGENT CREEK SUB LT 5 - Land Disposal
ROBERT L r4,10. 11928 19130, JA-'E'S D RHOC•EB JoHK NOR,AK ROBERT _I mAHcNry BERNARD J DOuGHt RTY MICHAEL W SHARON ROGER - BEATv EDGAR R LOCKE • MICHAEL Ro89,85 WEV ;SHEA C WALTER EBEL:. SPENCER C SNEED NIELV!N STENS 11 ROBERT C 'BRINK OF COUNSEL G KENT EDWARDS HART1G. RHODES. NORMAN a MkritNEY A PROFESSIONAL CORPORATION ATTORNEYS AT LAW SUITE 201 717 K STREET ANCHORAGE. ALASKA' 99501 TELEPHONE: 19071 274-3575 TELECOPIER: 19071 277-4352 TELEX: 10901 25-404 January 23, 1981 Arnie Hanson, Borough Manager Kodiak Island Borough P. 0. Box 1246 Kodiak, AK 99615 Dear Arnie: KODIAK OFFICE 202 CENTER AVE . BOA 503 KODIAK. ALASKA 99615 . 19071 486-3143 C WALTER EBELL MELVIN M. STEPHENS II REPLY TO Anchorage Re: Our File 101-K34 'Large v. Borough Please find enclosed a copy of the Supreme Court Opinion in the above-referenced case dated January,23, 1981. This Opinion affirmed Judge Madsen's summary-judgment decision which compels the Borough to sell to Large the Bells Flats property for $10,550.00. The Opinion and the findings therein are extremely loose and lack good academic quality. Accordingly, I am a little bit upset with the Opinion. It is one thing to lose an appeal in a well-reasoned decision citing proper authority and another thing to lose an appeal by,virtue of a decision that is loosely done without any academic integrity. With the permission of the Borough clerk and the polled assembly members, I'am preparing a Petition fOr-Rehearing which is our last chance at getting the Supreme Court to change its mind. If the Supreme Court does not change its mind, we have no more avenues of appeal and will be forced to sell the land to Large at the $10,550.-00 figure. If vou have the time, you may want to read a copy of the Borough's brief and a copv of that of Large's in conjunction with the Supreme Court Opinion. You will see that our brief is more documented and indicates that existing law and precedent compel a decision in our favor. However, unfortunatly, this was not the situation in this case. Arnie Hanson, 'Borough Manager -2- January 23, 1981 will keep you advised accordingly as well as sending you a cow of our Petition for-Rehearing. MUS : ms Enclosure Very truly yours, HARTIG, RHOD NORMAN By: NEY cha- 1. Sharon /y THE SUPREME COURT OF THE STATE KA. d _, 'jl;i. STATE OF aL�s ,•• .:�: -4 ��. 4.9 .. _ L • \ice CC:L;,Pp(.c .� ' i KODIAK ISLAND BOROUGH, ) ) Appellant, ) v. ) ROYAL LARGE, , ) ) Appellee. File No. 4661 O P I N I O N _[No. 2270 = January 23, 1981] appeal from the Superior Court of the State of Alaska, Third Judicial District, Kodiak, Roy H. Madsen, Judge. appearances: Michael W. Sharon, Cole, IIartig, Rhodes, Norman &- Mahoney, Anchorage, for Appellant. Robert C. Erwin, Hagans, Smith, Brown, Erwin & Gibbs, Anchorage, for Appellee. Before: Rabinowitz, Chief Justice, Connor, Burke and Matthews, Justices, and Dimond, Senior Justice. Mme: ^T HE,^IS , Justice. Royal Large first became interested in.a certain parcel of land (hereinafter re -erred to as the 4.22 acres), which included a `.warehouse, located in Kodiak in 1953. Larcce so: to ourchase the pr'ope'l., but it was part a mi lita rose= .a:._on and zh-,re =o-e was not obtainable. Subsecuer.zl y the land was tanserred to the State, and then to the cciia Island Borough. In 1969 Large negotiated a renewable 5-year borrow-site lease with the Borough for 6.4 'acres, inclusive of the 4.22 acres and warehouse, the terms of which enabled him to 'remove gravel from the land. In 1970, Large began to use the warehouse after having made some improvements on it The warehouse had been built by the military in 1943, but had not been maintained, and bv 1969, when Large's lease commenced, the warehouse was cuite cila?Jated. At that time, at Large's request, Boroug:' assessor appraised the warehouse, which was approx- imately 9,300 square feet, at 5,14000. In 1971 Large terminated the borrow-site lease and negotatec a renewable D-year industrial ground lease for 12.88-aC-res,'inclusive of:thesame area. He then requestec to alter the term of his lease from 5 years to 55 years, but withdrew his recuest upon determining that a lease of that duration must be put to public bid. He wanted to avoid the risk of losing the warehouse after having made numerous expenditures to improve it; also, he was advised that if he waited until the Alaska Native Claims Settlement Act became effectip, he would orobablv get a better deal. In 1973; Large reciuested a negotiated sale of the 4.22 acres, ti't the Borough did ncz authorize it. The next year, La renewed his request, and in February 1975, the Sorouch acreed. The borough assemblv directed. the borough assessor to appraise the property. He valued the property at $29,270.00, $9,280.00 of which was the land and $20,440.00 of which was the warehouse. Large thought this was too high because the enhanced value of the building was due to his own labor; he also thought that he would be unable to Purchase the property at that price because astate statute precluded negotiated sales for property valued at over $2 ,000.00. In August, Large offered topurchase the 4.22 acres and warehouse for $4,798.00. The Borough took no action on that offer. In September, the borough assembly vbted to sell the property to Large for just the.appraised value of o the land. A reappraisal was required,-and the land was valued at $10,550.00. On September 15, 1975, the borough mayor wrote Large a letter stating that he had been authorized by the assembly to negotiate a sale of the 4.22 acres and warehouse for $10,550.00, and directing Large to respond within ten days if he wished to accePt. On Sep- tember 24, Large sent a letter of acceptance which proposed a down payment of 10% with the balance to be paid over 10 t 6 interest. These were the standard contract terms utilize- bv the - ouch. On December 23, 1975, Large r-h to the 3crou:_jh as a down pavment. The next informed by tL s check was returned and Large was rough tha h's check would not be accept until a written contract was executed. A written contract embracing the payment terms reflected in Large 's letter of acceptance was prepared by the borough attorney and a copy was given to Large. However, a newly elected borough assembly oecicec not to comPlete the, transacton. On January 16, 1976, Large tendered $10,550.00 and an un- executed cuitclaim deed to the Borough. This was refused and returned to him. Larca then filed this suit in Kodiak. Judge Roy Madsen granted summary judgment to Large and'order ' the Borough to specifically perform the land sale contract. The Bcrouh appeals from the denial of its perempto .challenge o5 Judge Madsen, the denial, of its motion for suMmary_dudgment, and the granting-of- summary judgment to Large. The Borcugh received notice of the assignment of Judge Madsen to this case on June 17, 1977, and on June 21 the Borough sought to peremptorily challenge Judge Madsen filing a "Notice of Change of Judge" under Alaska Rule of Civil. Procedure 42(c). Presiding Judge Moody denied the Borough's peremotory challenge on October 27. The Borough claims that its exercise of its right to pere=torilv challence Jud.7e nadsen was cev, and - it was wrcng- den' - 4 - Civil Rule 42(c) provides, Lr. part: (c) Change of Judge as a Matter •of Right. In all courts of the state, a judge or master may be Peremptorily challenged as follows: (1) Nature of Proceeding. In an action pending in the Superior or Dis- trict Courts, each side is entitled as a matter of right to a change of one judge and one master. . A party wishing to exercise his right to change of judge shall file a Pleading entitled "Notice of Change of Judge." . . . • • • .(3) Timeliness. Failure to file a timely* notice precludes change of . judge as a matter of right. Notice Of . change of judge is timely if filed before commencement of trial and,with- in five days after notice that the case has been assigned to a specific judge. In a court location having a single resident judge of the, level of court in which the case is filed, the case shall be assigned to that judge when it is at issue upon a question of fact and the clerk shall immediately notify the parties in writing of such assignment. . (4) Waiver. A party waives his right to change a particular judge as a matter of right when he knowingly participates before that judge in: (i) Any judicial pro- ceeding which concerns the merits of the action and in- volves the consideration of evidence or of affidavits; . re does not dispute the Borough's claim of timeliness, but contends that the Borough waived its-right 2 by presenting two Civil Rule 12(b) (6) motions before Jude Madsen, since those motions concerned the merits of the case 3 and involved the consideration of evidence. We agree that, 1. The Notice was filed "before commencement o= trial and within five days after.notice that the case has been assigned to a, specific judge," as requiredby , Alaska R. Civ. P. 42(c)(3)., 2. A 12 (b) (6) motion is one to dismiss for failure of the pleading to state a claim upon which relief can be granted. 3. In opposition to the motions, Large filed, among other things, an affidavit and exhibits. Civil Rule 12(b) provides for conversion of a 12(b) (6) motion into one for summary judgment in such instances: If, on a motion asserting the defense numbered (3) to dismiss for failure of the_pleading_to state a .claim upon„ -T7N7-hich relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. Judge Madsen did not exclude the extra-pleading materials, and we note that the motion thus should have been treated as one for summary judgment. See Martin v. Mears, 602 P.2d 421 (Alaska 1979). However, this is of no consequence to this app,eal, and therefore we need not consider it further. at least for purposes of a Rule 42(c) change of judge a 4 12(b) (6) motion concerns the merits of the case and may constitute a waiver. However, in Tunlev v. Municipality of Anchorage, 617 D.2d 490, we held that a "knowing" waiver is required by Rule 42(c) (4), and that this can be found only where ne recuisite participation occurs after.the Party is informed that the judge before whom he or she is appearing is the judge permanently assigned to hear the case or is assigned trial." Id. at 12. The effect of this rule is preclude a finding of waiver when a party participat before a judge in matters involving the merits of the case but does so prior to that judge's assignment 'to the case for purposes of trial. This is because it would. be neither fair nor conducive to an.effective exercise of the rightto require a party to challenge a judge before whom he does not know whether he will appear. In this case, the two 12 (b) (6) motions wer presented before_Judge Madsen'before the Borough had ceived notice that Judge Madsen was assigned to the case for trial. Civil Rule (c)(3) provides in part: 4. It cannot be denied that if the moving party was successful, and the 12(b) (6) motion was granted without leave to amend, the ruling wcu'd certainly be on the merits. Characterizing an unsuccessful 12;b)(6) motion as cne not going to the merits of the case would be contrary to the purtoses of the limitations :'.5'1aced upon the exercise of a Civil Rule 4'7):c.) chan-ce, infra. In .a court location ha7inc a single resident judge of the level of court in which the case is filed, the case shall be assigned to that judge When it is at issue uron a question of fact and the clerk shall immediately notify the parties in writing of such assignment. . . . TEhasis added] In Channel Flying, Inc. P.=-nhar,lt, 451 P.2d 570 (Alaska 1969), we held that a case is at issue upon a cuestion of fact when the parties to an action, ihrough their pleadings, have raised some disputed question of fact, alleged to be a fact en one side and denied on the other, upon which the Pa ties seek to obtain the decision of the court or jury. Id. at 573 (footnote omitted). This cas was at issue upon a auestion of fact when the Borough filed its answer denying various factual allegations of the complaint, and thus the case was assigned to Judge Madsen at that time. The only remaining auestion is whether the clerk's failure to immediately notify the Borough of the assignment precludes a finding that their participation in the 12(b)(6) motions before Judge Madsen was "knowing" participation. We. do not think it does. Although the clerk her was less than diligent in notifying the parties, since IKodiak is a single- judge district, the Parties knew that Judge Madsen would be ' - 5 t:- trial judge unless he was discual'fie(4. To hold h.er- would create a situation which is susceptible to thO Dractce of "judge-shopping," where a party could take advantace of the clerk's tardiness in. formally giving notification bv sampling the judge's rulins on motions presented before that time, and then availing itself of the right to peremptorily challenge the .j-udge if the rulings are not to its liking. Under these circumstances, we find that the Borough waived its right to ceremPtorilv challenge Judge 72.1adeen when it made the 12(:, ) (6) motions before him. The Borough claims that the court erred in denying its motion for summary judgment. Under Alaska Rule of Civil Procedure 56 (c) , a prerequisite to a_grant of summary judg-. ment is the determination by the court that there is nO genuine issue as to any material L. For the pUrPoses of s own motion, the Borough assumed that a contract existed between itself and Large, but argued that the contract was unenforceable as a matter of law. Thus, for the purposes of 5. This, of course, distinguishes the present case from Hartford Accident and indermity Co. v. State, 498 P.2d 274, 276 (Alaska 1972) which arose in a multi-judae district. The Presumption that the resident judge in a single judge district will hear cases filed in that district is in some respects analogous to the nresumotion we noted in Priest v. Lind'g, 591 P.2d 1299, 130' (Alaska 1979) that when a case is "reversed and remanded . . . for a new trial; it would be fair to presume that the same judge would or.eside at t second trial i:e„the absence of a reass to another jude."- . its own motion, the Borough -Conceded the absence of disputed ,'acts. Large failed to file a. timely statement of genuine issues as required by Civil Rule 36(e) 6 and thereby sustain his burden of demonstrating that there is a triable issue of fact. Bickel v. Stevenson, 416 P.2d 236 (Alaska 1966). The Borough argues that it-was entitled judg- ment as a matter of law on several grounds. First, the Borough contends that KIBC 18.48.070, under which the alleged ccnzract was made, is inconsistent with state law and therefore invalid, and that this renders the contract un n'o.rceable. The Borough contends that the borough ordinance is inconsistent with AS 29.48.260.' -6. ---Alaska-R-.-C . P. e providesin part: When a motion for summary judgment is made and supported as Provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this-rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if aPprop- riate shall be entered against him. 7. It is not disouted that Kodiak Island Borough, ,a second class borough, is a .general law municiz'alitv, AS 29.03.930, cossess'nc only the lec'sTat:Ive owe-,..s con- ferred bv law, AS 29.03.020, and sulo'-,ot to ::eneral laws of szaze. The pertinent provisions of AS 29.48.260 provide: (c) The assembly or council shall by ordinance establish a formal procedure for the sale, lease or disposition of real property or interest'in real pro- perty. The ordinance shall recuire (1) an estimated value of the property by a qualified appraiser or the assessor; (2) a notice of sale published in a news- paner of general circulation distributed within the municipality at least 30 days before the date of the sale, lease, or disnosition, or nosted within that time in at least three public places in the municipality; (3) public auction or opening of sealed'bids, if any; and (4) other terms and conditions fixed by the assembly or council. However, no ordi- nance for the sale, lease, or disposi- tion of real proPerty or interest in real property valued at $25,000 or more is valid unless ratified by a majority of the qualified voters voting at a ' regular or snecialelection at which the Question of the ratification or the ordinance is submitted. (d) The assembly or council may by or- dinance establish a formal procedure for acquisition from the state of land or rights in land and the disposal of the land or right in land, in which event the provisions of (c) of this section do not anply. The Borough is sl-Cnject to this general law which regulat the acquisition and disposal of municipal property. KIBC 18.48.070 provides: Sale procedure. The sale shall be made at public auction or by sealed bid to the highest cualified bidder a shall" '.-- -e determined bv the borough chairman. licweYer, the borouch c airnn, when so cun assembly, may enter into negotiated sales for tracts so land (3: rive acres or less directi7 with the applicant for such land. Public sales shall be conducted by the borough chairman or his representative and, at the time of sale, the successful bidder shall deposit in cash or by certified check, an amount equal to one-tenth of the purchase Price and the balance of the purchase price shall be payable on,delivery of the deed. How- ever, a contract of sale may be entered into by the borough and the purchaser on a form approved by the borough attorney and shall be signed by the purchaser and, following the apProval of the borough assembly, shall also be signed by the borough dhairman and presiding officer, which contract orovisiOn shall provide for the payment of the purchase price in monthly installments with interest and for the deposit of a deed to the property purchased, along with a copy of the contract of sale in an escrow agreement. [Emphasis ,added]. In addition, KIBC 18.48.050 requires an appraisal of the subject Property within-9-0 days-Of the sala, and-KIBC 13.48.080 requires the same public notice specified in AS 29.48.260(e) (2). The alleged contract between Large and the Borough for sale.of the 4.22 acres was a negotiated sale. Although AS.29.48.260(c) requires comoetitive bidding, sub- section (d) dispenses with this requirement in certain 8 cases: 3. Another excection, not certinent here, is found in subsection (e), which allows sales of land that i be used =o-r^n..,,Fo'.' new 'nr-'1'st-i,-s ucn con,4'-'ons conside-a aceous roth mun'cipl'tv. The assembly or council may by ordinance establish a formal procedure for acquisi- tion from the state of -land or rights in land and the disposal of the land or rights in land, in which event the Pro- visions,of (c) of this section do not apply. We believe that KIBC 18.48.070, insofar as it applies to state land comes within this exceci-ion to the procedures reQuired bv subsection (c) , and therefore is not invalid. The second ground upon which the Borough contends that _it is entitled to judgment as a ,matter of law is that the contract is unenforbeable because sale of municipal property for less than its oroperly appraised value violates 10 state law, 9 borough law, and the Borouqh's fiduciary duty 9. The Borough cites AS 29.48.260(c), which we have determined is inaoplicable here. 10. KIBC 18.48.050 states: Appraisal. No borough lands shall be leased, sold, exchanged, or a renewal lease issued unless the same has been appraised within ninety days prior, to . the date fixed forthe beginning of the term of the sale, lease, exchange or renewal lease. Appraisals shall reflect the number and value of borough services rendered to the land in Question, its location, and other facts affecting its desirability. Similarlv, the borough assessor shall appraise any lands in lik!, manner which the borough plans to take in exchange for borough lands not used or needed ' clic purocses. (continued c. 14) other taxPavers. The Borough contends that the properly aPol-ased value would necessarily include the value of the warehouse which was on the land; the appraised value that was established for the property for purposes of its sale t.) ! , $10,550.00., did not include the warehouse. . Large contends that the borough assembly had the discretion to choose not 'to include the value of the warehouse in light of Large's own exuanditures which greatly enhanced the value 11 of tz warehouse. There was testmony by several assembly members that the warehouse had deteriorated almost com- etely when Large took possession of it, and one person referred to the structure as "remnants of a World War II warehouse :., Large renovated and upgraded." Another assembly member stated that Large "had maintained it, where it hadn't been_it_wauld have deteriorated completely." 10. (continued) KIBC 13.52.020 states in pertinent part: Minimua rental,or sale p rices. . . . The minimum sale price shall be the approved appraised market value and shall be the lowest acceptable bid in the event of an auction or sealed bid sale. 11. When Large first took possession of the propetv under his lease in 1969, the warehouse had an aooraised value of $5,140.00. In 1975, the warehouse was aporaised at ..;20,440.00. Among other things, Large had cleaned the warehouse, repaired the cracked trusses, and Put on a new roc'. We arce with Large that the bcrough chairman and the asseb1y had the discretion under the negotiatei sale clause of K13C 13.48.070 to recognize the value of Large's work and determine that but for his labor, the.warehouse would not have continued to exist, and ther re decide that he should not be charged for it. Thus, we find that the Bo ough failed to sustain its burden of showing that the all- ed ccnzract was unenforceable and that the Borouh was entitled to judgment as a matter of law. Next, we consider whether the court erred in granting summarv.judgment to Large. Since we have deter- mined that assuming the existence of a contract, it was net unenforceable, two issues remain. We must determine whether there were disputed material facts, and whether the alleged contract existed. Since summary judgment was granted for Large, on -peal all di uted inferences of fact must be drawn in favor of the Borough. Cla augh v. Bottcher, 545 P.2d 172 (Alaska 1976) . As noted above, the Borough conceded, for pur--Doses of its own motion, both the exiszence of a contract and the absence of disputed nazerial facts. On aopeal, the Borough argues that th - trial erred because it baSed its find- inc, in -rnntin suna:: juent to the non-moving party, on he moving party's ccnc of absence of anv material J spute. The Borough argues that a grant of summary judgment to a non-moving party is proper only if both sides agree that there,-is no material fact in issue and join 'in a request that the court make a decision based on the motion made bv only one of them. The Borough is correct in its statement of the law that the trial court may not base its finding of absence of disputed material fact on the moving p rtv's concession made solely for the purposes of its motion. However, the determination of whether a enuine issue of fact exists is a question for the court and as such 13 • does not defend upon what the parties think. The'court obviously is not p recluded from finding that no actual factual dispute exists merely because one or both parties 14 allege the contrary. The Borough-presents 1no support for its claim that the court based its decision on the Borough's concession. The court had before it, in addition to the pleadings and memoranda of law, the depositions of five witnesses. And 12. See 10 Wricht and Miller, Federal Practi Procedure 5 2720, at 462. 13. See, e.c. , Brawner v. Pearl Assurance Ltd., 267 F.2d 45, 46 (9th Cr. 1953). 14. Rec., e.g, Federal Decos4- Ins. Corp. v. Sumner Financial Coro., 376 F.S. 772 Fla. 1974); 6 oore, Mocre's i! 56.11 a 56-334. - " _ f nowhere in its brief does the Borough cite any facts that are s ^uted or conflicting; i simply states " [t]he issue of 'the alleged agreement _ , of course disputed by the Borough." It is evident that the issue over which the Borough is here concerned is not truly a factual dispute, rather it is as to the lecal interpretation to be given to the undisputed facts. - The Borough rakes several arguments rega=G� =_ ^_C the J- court's allege: error in finding the existence of a contract. First, the.Borough argues that since the court granted summary judgment to the non- moving party, and since the Borough Conceded the existence of a contract for the pur- poses of its own motion, the Borough was never afforded the opportunity to argue against the existence of the contract, and reversal is recuired. the find this claim .to. be without merit. The Borough's Rule 12(b) (6) motions were based on its assertion that the contract did not exist. Moreover, since the question is as to the legal consecuences of undisputed occurrences, thi srCourt will make its own determination, and the Borough can and has argued the 'merit, of its Position on appeal. Seco nd v , the Borough a_ ues that th ccu' ution evidence that was inadmissible, that is, a- letter that was never authenticated, ., ea h its dete_...- nat:mn . We agree ..__ . rarQe since t.. .. letter was read into ...c r-,cord during one of the depoSitiohs, and its validity was never . disPuzed, the error, i' would be harmless, Concerned C'Cizens v. Kenai Peninsula Bordugh, 527 P.2d 447 (Alaska 1974); Kvasnikoff v. Weer Bros., Inc., 405 P.2d 781 (Alaska 1965). Finally, the Borough claims that the writings do not have the requisite certaincY of terms of a specifically enforceable contract. The language of the offer is as follows: The Assembly has authorized this _office to negotiate a sale for the 4.22 acres of land for a price of $10,530.00. This would be $2,500 per acre. Please be advised that you should notify this office within ten days, or bv September 25, 1975, if you wish to accept this proposed salt orice. The language of the acceptance, dated.Seotember 24, 1975, as follows-: I accept the price of $10,550.00 for the 4.22 acres of land that you suggest in your letter 13 September, 1975. I note that you sav you have the power to negotiate, which I presume means to discuss and agree uoon the mode of payment. I propose a.down-payment of ten. per- cent (or $1,000) and pro-Pose the payment of the balance over a term of ten years at sN Percent (6) interest on the un- oa,4 balance. hczy me o" convenen time that we nay meet tc finalize this matter. ( cuh cites Hollus v. Arend, 511 P.")d 1074 (Alaska 197.3 ) as supPort for it claim that these wrii- 1,,ck the r-,..cu'rA s cificitv to be enforceable. In Hollaus, court stated: It is well established that a contract. "must be reasonably definite and-certain as to its terms" to be specifically en- forceable. Further, as this court recently recognized, "A greater degree of certainty is reauired for sPecific performance than for damages. . . ." - [Footnotes omitted]. 511 ?.2 a 1375. In that case many material terms were omitted and we found that the gaps were such "as to mani- fest a failure to reach an agreement," and we therefore denied specific performance. On the other hand, where the gap in the agreement can be filled in a manner reasonably certain to corresPand to the reasonable expectations of the • parties, specific Performance should be granted. See Rego v. Decker, 482 P.2d 834 (Alaska 1971).. it is clear that the offer constituted an invitation to contract, as opposed to mere preliminary negotiations, despite its paIS-city of terms. As Professor Williston states: Where the property to be sold is accu-ately defined and an amount stated as the price in a communication made, not by general advertisement, but to one person individually, nc reasonable inter- pretation seems Possible ..:cept, that the has een writer offers to sell the procerty des- cribed :or_the ice mentioned. [Footncte omitted]. ThUs, to determine whe ther an enforceable contract ne,es, ealuate the nature of ?-plv to the offer. . If the replv is a valid acceot- ance, an en'orce=ble contract would be created. If the te=s suggested bv Lar;e ccnstitutea conditional accet- ance, would be a counter-offer and thus a -,-ej,=,ci-icft of 16 the ori-inal offer. However, when the acceotance of the offer is initially unconditional, the fact that it is accomoanied(bv a recuest or a direction lccking to the performance of the contract does not render the acceptance ineffective nor give it the character cf a counter- 17 limit the contract. so long as it does not Here, Large uhecuivccallv acceted the 3orouqhs _ offer. The fact that the assent was accomoanied bv a suggestion as toterrns of :payment, a detail not-inconsistent 15. S. Willistcri, Williston en Contracts § 27 at (Jaeger, 3e ed. 19) T.(4. 5 77 at 251-2. 17. ValzSh-inas v. Kcniut, 125 N.*:.3.9d 554 (N.v. Apo. Div. 195:3), ad. 124 N.72.1d 300 (N.Y. 1954). See also 3rangie- v. Rcsehth,•-1, 334 (9h C'f. 1964) ; A. Ccrbin, Corbin o Contracts 55 34, 93 (1363 ed.). wlth tho licrou'gn's of' - dLd nct convert offor. Lar 's crocosec th s-,-.--ndard contract terms used bv ti 3c cc-.:acts. They were into n couriter- acco:c with hh in form contract reared borouch attorney and the ,--ucF did not' rv,-== to copiete the transaction because of any disag,--ee- ent c-nc.,,,rn'.ng them. Lare's :enlv was an unconditi assent 4' not mate-4.17v decart from the oer. The:eore an encceab1e conract was created and KoDIAK ISLAND BOROUGH Telephones 486-5736 - 486-5737. — Box 1246 KODIAK, ALASKA 99615 March 6, 1980 Mr. Dale P. Tubbs Land Management Consultant 1234 West Hillcrest Drive Anchorage, Alaska 99503 Dear Dale: The borough assembly has scheduled a work session for Saturday, March 22, 1980. They would appreciate your attending this meeting to discuss the following items: 1. A proposal by Mr. Royal Large for an exchange of lands (copy of letter from Mike Sharon and enclOsure attached) 2. Discussion on disposal of borough selected lands at Cape Chiniak within State Survey No. 73-119. If you have any questions or conflicts, please advise. Sincerely, Harry B. Milligan Planning Director hbm/mdd Attachment cc: Borough Manager HOYT M. COLE ROBERT L. HART(G JAMES D. RHODES JOHN K. NORMAN ROBERT J. MAHONEY BERNARD J. DOUGHERTY MICHAEL W. SHARON ROGER H. BEATY STEPHEN D. ROUTH WEV W. SHEA EDGAR R. LOCKE C. WALTER EBELL SPENCER C. SNEED MELVIN M. STEPHENS, 11 OF COUNSEL: G. KENT EDWARDS I- \ COLE, HARTIG, RHODES, NORMAN8c MAHONEY A PROFESSIONAL CORPORAMaiiik isima 1kerronk ODIAK OFFICE: ATTORNEYS AT LAW KODIAK.. AU\ 1(A. 202 CENTER AVE.. BOX 503 SUITE 201 RECFIVED KODIAK, ALASKA 99615 (907) 466-3143 717 K STREET C. WALTER EBELL ANCHORAGE. ALASKA 99501 MAR 6 19&j MELVIN M. STEPHENS, 11 (907) 274-3576 IA90%11020421314150. March 3, 1980 A Kodiak Island Borough P. O. Box 1246 Kodiak, Alaska 99615 Attention: Gary Hovanec, Borough Manager Dear Gary: REPLY TO: Anchorage RE: Borough v. Royal Large Our File No. 101-K34 Please find enclosed a copy of the February 29, 1980, correspondence from Robert C. Erwin, Attorney for Royal Large. This correspondence and the attached maps contain a proposal to settle the pending appeal short of a decision. In other words, Large feels that instead of waiting a year and a half for this matter to be settled and trusting the court to decide in his favor or our favor, that we should settle this short of a decision on appeal. Accordingly, please view the enclosure and let me know your thoughts and the thoughts of the assembly on Mr. Large's proposal.: Very truly yours, COLE, HARTIG, RHODES, NORMAP & MAHONEY By: MWS:mac Enclosure Mic ael W. Sharon HOYT M. COLE ROBERT L. HARTIG JAMES D. RHODES JOHN K. NORMAN ROBERT J. MAHONEY BERNARD J. DOUGHERTY MICHAEL W. SHARON ROGER H. BEATY STEPHEN D. ROUTH WEV W. SHEA EDGAR R. LOCKE C. WALTER EBELL SPENCER C. SNEED MELVIN M. STEPHENS. II OF COUNSEL: G. KENT EDWARDS COLE, HARTIG, RHODES, NORMAN & MAHONEY A PROFESSIONAL CORPORAMIttlak island BerraugkOD IA K OFFICE: ATTORNEYS AT LAW KODIAK. ALAA 202 CENTER AVE.. BOX 503 SUITE 201 RECF1VED KODIAK. ALASKA 99615 (907) 456-3143 7)7 K STREET ANCHORAGE. ALASKA 99501 MAR 6 1980 C. WALTER EBELL M. STEPHENS. II (907) 274-3576 *Pa 143194001/2i-1121314150 March 3, 1980 k Kodiak Island Borough P. 0. Box 1246 Kodiak, Alaska 99615 Attention: Gary Hovanec, Borough Manager Dear Gary: Please find enclosed a copy of the February 29,'1980, correspondence from Robert C. Erwin, Attorney for Royal Large. This correspondence and the attached maps contain a proposal to settle the pending appeal short of a decision. In other words, Large feels that instead of waiting a year and a half for this matter to be settled and trusting the court to decide in his favor or our favor, that we should settle this short of a decision on appeal. Accordingly, please view the enclosure and let me know your thoughts and the thoughts of the assembly on Mr. Large's REPLY TO: Anchorage RE: Borough v. Royal Large Our File No. 101-K34 proposal. Very truly yours, COLE, HARTIG, RHODES, NORMA & MAHONEY By: MWS:mac Enclosure c ael . Sharon CHARLES HAGANS FLOYD V. SMITH KEITH C. BROWN ROBERT C. ERWIN SANFORD M. GIBBS RICHARD L. WALLER LINDA M. O'BANNON LAW OFFICES HAGANS, SMITH, BROWN, ERWIN 8 GIBBS 310 K STREET, SUITE 704 ANCHORAGE, ALASKA 99501 TELEPHONE 276-5294 AREA CODE 907 * 03 February 29, 198.0-. e::) -1, , • -;.,:•: r:i rrl = Michael W. Sharon, Esq. .Cole, Hartig, Rhodes, Norman & Mahoney - - = 717 K Street, Suite 201 Anchorage, Alaska 99501 - = - ...ern n- --= RE: Kodiak Island Borough v. Royal Large . Our File No. 2685 Dear Mr. Sharon: I am enclosing herewith a specific proposal prepared by my client, Mr. Royal Large, concerning the settlement of the Supreme Court case which was argued on Wednesday, February 27, 1980. The offer is made on the basis that the legal issues are known, they have been argued by both sides and extensively briefed, and that a decision from the Supreme Court of Alaska will undoubtedly take a year to a year and a half under the present conditions, being completely charitable in this matter. Specifically, Mr. Large makes the following offers herein to settle the case and to give up all rights he presently has in the law suit or any other pending law suit by virtue of past actions of the Borough. Each of the alternative suggestions are as follows: ALTERNATIVE I Mr. Royal Large offers to give up any interest in Lot P2S which is the portion of the present property which is at the intersection of Chiniak Road and Sargent Creek Road. This is the most valuable portion of the P2 plot and in exchange therefor, Royal Large would accept free and clear title to the P2 north which is the site of the present warehouse, together with everything at the present time contained in the adjoining parcels Lots P7A and 2713. The value would be approximately the same. ALTERNATIVE II In the alternative to the first proposal, Mr. Large would transfer to the Borough all his right, title and interest to Lot 5, Block 3 of the same subdivision on which (Th Mr. Michael Sharon February 29, 1980 Page 2 there is presently an offer to purchase by Kodiak Electric Association for the amount of $44,000.00 in exchange for all of the Lot P2 land and Lots P7A and P7B which free title would be transferred to Mr. Large by the Kodiak Borough. Any sale of Lot 5, Block 3 to Kodiak Electric Association - could then be accomplished by the Borough itself and they would pay the outstanding $20,000.00 indebtness on Lot 5. The consideration for the swap would be (1) the dismissal of the lawsuit with both parties to be responsible for their own costs and attorneys fees, the agreement by Mr. Large to give up any claim he might have by virtue of the simultaneous leasing of P7A and P7B to separate parties in the past. These proposals are made in good faith and if there are any counter proposals they will be seriously considered. We would appreciate your serious consideration of these proposals. Ver ly yours, RCE:11c cc: Rick Garnett Royal Large ert C. Erwin . • . • 'N • ____, . - .‘ • • • ' • • \ • - * N\\'■ •Vr • . - • • 0. 1 KIB ASSES0LY MEETI.IG-LAIGUST 2, 1979 (Recessed to 2-ugust 3) PAGE 6 D. Resolution 79-37-R Providing Space for Legislative Informa- tion Office and Teleconferencing Site. Fayor read the resolution. Mrs. Kavanaugh moved to call up from the table. Seconded by Mr. Peotter. Motion carried by unanimous roll call vote. Hrs. Kavanaugh moved to substitute the resolution before us tonight for the one of the June 5th meeting. Seconded by lir. Jack. Motion carried by unanimous roll call vote. Mr. Anderson moved to amend to pay rent in the amount of 30 cents per square foot for FY 30 to be paid monthly and in paragraph 4, line 4 delete everything after "fiscal year 1980. Seconded by Mrs. Kavanaugh. Amendment carried 6-1; Mr. Phderson, Dr. Emmick, Jack, Mrs. Kavanaugh, Mr. Ogg and Mr. Peotter voted YES with Mr. Hansen casting one O vote. Main motion (moved for adoption of Resolution 79-39-R) as amended carried by unanimous roll call vote. _Royal _Large Cas-e--; Mayor Wallin read the correspondence. rs. Kavanaugh moved that Michael Sharon, attorney, be instructed , to file the appellant brief. Seconded by Mr. Peotter. )r. ,Emmick moved the previous question be called (to close debate). Seconded by Mr. Hansen. Motion failed 4:-2; with one abstention, requires two-thirds vote; Dr.,Emmick, Mr. Jack, Mrs. Kavanaugh and Mr. Peotter voted YES, Mr. Hansen and Mr. Ogg cast NO votes and Mr. Anderson abstained. Mayor Wallin read a recent opinion on limitation of debate. A recess was called at 7:55 P.A., meeting reconvened at 8:05 P.M. "irs. Kavanaugh moved to limit debate to one (1) minute per person. Motion carried 5-2; Mr. Anderson, Dr. Famick, Mr. Jack, iirs. Kavanaugh and Mr. Peotter voted YES with Nr, Hansen and 1r. Ogg casting NO votes. Mr. Ogg moved that -11-2. Anderson may abstain from vote for the next month if he chooses. Seconded by 1112. Hansen. Mr. Anderson stated he had no background on this case. Motion failed 3-4; Mr. Anderson, Mr. Jack and lirs. Kavanaugh voted YES with Dr. Emmick, Mr. Hansen, Hr. Ogg and fir. Peotter casting AO votes. Hain motion carried 4-3; Dr. Emmick, 'Ir. Jack, Mrs. Kavanaugh and Mr. Peotter voted YES with Mr. Anderson, hr. Hansen and Mr. Ogg casting votes. F. Expiration Felton Lease on D•1, Bells Flats Subdivision. Mayor Wallin read the correspondence. Dr. Emmick moved to affirm the policy as outlined in the last paragraph of the manager's memo and continue the lease until other arrangements are made. Seconded by Mrs. Kavanaugh. Motion carried 5-2; Mr. Anderson, Dr. 'Emmick, Mr. Jack, Mrs. Kavanaugh and Mr. Peotter voted YES with Mr. Hansen and 11,. Ogg casting NO votes. H. Developmental City of Afognak Outlining State Requirements. Mayor Wallin read the correspondence. Mr. Hansen moved that the petition be acknowledged and have Ms. Katz and/op Mr. Garnett, attorneys, review the document and made a review of the Petition before action is taken. Seconded by Hr. Jack. Mr. Denslow stated that Afognak City could not at a later date opt not to turn over their planning powers to the borough without the consent of the assembly. Ms. Katz will receive a copy of these minutes. Mr. Ogg requests Us. Katz address what will happen after the five-year period and their request that a member of KIB and the planning and zoning staff consult with their planning commission. Mayor Wallin suggested that any assembly member having input into this document is free to write to the attorney, as on any issue. Motion carried by unanimous roll call vote. IX MANAGER'S REPORT 1. Start up meeting for the engineering and planning effort in Service District No. 1 to prepare the Stage 1 Facilities Plan was held July 2, 1979. The schedule for the events, KIB Service District Jo. 1 Facilities Plan Project Schedule are as follows: ti KIB ASSEMBLY MEETING - JULY 5, 1979 (Recessed to July 10, 1979) PAGE 10 P. School District Budget Report May 1979. Mrs. Kavanaugh moved to acknowledge receipt of School District Budget Report May 1979. Seconded by Mr. Ogg. Motion carried by unanimous roll call vote. Q. Attorney's Monthly Reports. Mr. Ogg moved to acknowledge receipt of the Attorney's Monthly reports. Seconded by Mr. Hansen. Motion carried by unanimous roll call vote. XI MAYOR'S COMMENTS 1. Stated the Borough letters and offers to assist of thanks from Don Young, Congressman; Ted Stevens, U.S. Senator; and Jay Hammond, Governor, for the communications re the Dog Bay Harbor. 2. Stated the City of Kodiak had sent a letter asking for non - objection re 100% annexation petition for Lot 2A, USS 3098. Mrs. Kavanaugh moved to voice non - objection.' Seconded by Mr. Ogg. Mrs. Kavanaugh moved to amend adding "if in the opinion of our attorneys there is no precedent setting in giving our apponval for non - objection ". Seconded by Mr. Peotter. Amend- ment carried by unanimous roll call vote. Mr. Denslow stated this is under review by Mr. Crane and Ms. Katz. Main motion carried by unanimous roll call vote. 3. Read letter from City of Kodiak re increase in rent in the borough building. Mr. Denslow stated he has discussed this matter with the City Manager; there will be further discussions with a report made to the Assembly. 4. Stated the City of Kodiak had asked the Borough to consider the National Flood Insurance Program. Since this item was tabled at the last meettgg, unless action is taken tonight, this item dies. No action was taken. 5. Read invitation to participate in Mayors' Touch Football game in Seward on September 15th. XII ASSEMBLY COMMENTS Mrs. Kavanaugh: 1. Moved a resolution be prepared for the July 21st special meeting calling for a proposition to be put on this year's ballot prohibiting the sale of fireworks in the KIB. Seconded by Mr. Peotter. Motion failed 3 -1; Mrs. Kavanaugh, Mr. Ogg and Mr. Peotter voted YES with Mr. Hansen casting one NO vote. Mr. Peotter: None Mr. Hansen: None Mr. Ogg: Pointed out that there is a great dust problem on Mill Bay Road which has contributed to auto accidents. Otmeloi/ Rezanoff Road, Spruce Cape road and Bells Flats road are all affected by this problem. Suggested staff take photos of this condition to be submitted with a resolution to the state re- questing paving of these roads. The mayor so directed this be done.'' one . 2.... Directed the manager to set the policy that the KIB postage machine.be used only for borough business. Stated the Borough has until August 8th to file. -an appea-1_ n the -Ro al Lar.e case. 'Mayor Wallin recommended this be put % " othe ugust 2_nd meeting. 4.„ Moved -that the manager respond to individual assembly and mayor, requests.as well as-those from the body as a whole. '• Seconded by Mr. Hansen. Motion failed 3-1;. Mr. Hansen,. Mr. Ogg_ and'Mr.- Peotter voted YES with Mrs. Kavanaugh casting on'e NO vote. The mayor asked that all assembly members and .herself be given the same courtesies. XIII AUDIENCE COMMENTS .Bi11..Glynn, KPBC: Stated Kodiak Public Broadcasting Corporation, 'did' not budget.fer the increased rent for KMXT space and cannot pay it. They do not receive janitorial service, repairs' or NIB ASSEMBLY MEETI4G-MAY 3, 1979 PAGE 5 6. Construction activities schedule for the Ouzinkie and Larsen Bay high schools as set out in letters from 'taynard & Parton. a) Complete Larsen Bay contract drawings and specifications on Nay 21, 1979, present completed working drawings to School Board and Assembly during week of Jiay 21 through 25, bid opening date June 26, 1379 and b) complete Ou:d_nkie contract drawings and specifications June 3, 1979, present contract documents to School Board and Assembly during week of June 3 through 14, bid opening date July 12, 1979. It is expected the buildings will be ready for occupancy by the start of school in fall of 1980. r. Hansen _moved_ to_ac!cnowle(,yement__ the two communications. Seconded by Ir. Oggotiori carried by unanimous roll call vote. 7. Announcement from Senator Stevens office that the Community Development Block Grant application has been partially funded in the amount of 7,90,000. 6. Grant approval DEC-EPA for the 1iase I wastewater grant planning work in service district Tine grant has been approved; recommend the grant funds be allocated and an agree- ment with Kramer, Chin 6 Mayo be approved not to exceed z:1!9,486. Discussions for teaching agreement with the city for the use of the sewer treatment plant are being held. jr Hansen moved to accept the documents_and to_approve_a profes7 sional service contract with Kramer, Cnin & T:ayo.for_accomplishment of Step I in an ampqnt not to exceed $1!9,48.5 _SecOnded_byj;r. Ali Motion carried 4-1; “r. Featn;r. Eansen,__Ur. Jack, I:rs. i:avanaugh voted YES with 7.r. 0g,g casting one 10 vote. Combining DEC-EPl. grant and state revenue sharing funds for Planning allows 100 percent project funding. 9. Announced the city requests the Borough support the Dog Bay project. Ersi_Kayanaugh.moved_that_since this_is_mentioned_in the 0.E. D. P. for the _NIB that_a letter .be sent in_full_support of the Dog Bay financing. Seconded by 1:r. Jck. Motion carried by unanimous roll call vote. 10. Distributed copies of audit prepared by Peat, 7a.rwick, Nitchell 6 Co. referencing termination of the contract with meal Company, Inc. and Tony •2al, a Joint Venture for contractor an the hospital extended care unit. 11-'s. Kavanaugh moved to acknowledge receipt of the status ofcontract with and scheduje_of.disbursements remitted to Aeal E Co., Inc. and forly_eall_aintiVenture_Kodiak Ar3dition. Seconded by r. Hansen. iotion carried by unanimous roll call vote, 11. Distributed the latest version of the rawfish tax bill, 12. Submitted a report of the le!.;a1 expenses incurred so far on the Royal Large case-report as of February 28, 1979. Total amount is 3,802.84. 13. Presenteu a proposed ordinance t6 authorize negotiated leases to non•profit corporations and public utilities. 1r. Jack moved for adoption of Ordinance 79-19-0 at first reading. Seconded by Ur. Hansen. lotion carried by unanimous roll call vote. This would permit entering into a ten-year lease with KMXT. 14. Presented a request from City of Port Lions for a $750.00 stipend to assist in dealing with the control of their rat problem. Hrs. Navanaugh.moved 1O0 be _granted to_Port_Lions_ for rodent control. Seconded by lir. Jack,. Notion_carriedjff unanimous roll call vote. 15. Reported a call from Patrick r)uffy regarding a pollution problem at Island Lake. Asked the assembly for direction to contact the DEC and request that a pollution abatement investi- gator be brought to the site. Hrs. Kavanaugh moved to acceRtthe manager's recommendation. Seconded by Ur. Jack. Motion carried lunanimous roll call vote. Mrs. Kavanaugh was excused. X NEW BUSINESS A. First Reading Ordinance ,79-18-0 L-ending Personnel Rules and Regulations. Ur. 0g read the correspondence. !Ir. Hansen moved for adoption of Ordinance 1179-18-0 at first reading. Seconded by Jack. Motion_carried_b_y_unanimous_roll call vote. KIB ASSEMBLY MEETING-APRIL 5, 1979 PAGE 2 F. Report of Counsel on Village School Site Acquisitions. Mr. Hansen read the'correspondence. Mr. Denslow explained that the agreement prepared by Mr. Lekisch was mailed to the village corporations on October 31, 1978 and followed up on December 19, 1978. Akhiok is the only village that has responded. It was pointed out that for the present "intent" would be sufficient on the part of the villages. Mayor Wallin requested expeditious settlement of this matter. Mr. Peotter moved to direct adminis=_ tration to prepare a resolution in ccnformance with. the_request of the attorney for presentation_at_the Hay 3.1 1979 meeting. Seconded by Mr. Ogg..Motion.carried_unanimously. G. School Budget. Or. Anttonen made the presentation. The borough portion of the ,i9,397,701 budget would be $1,232,869, Dr. Anttonen stated this amount was needed to maintain the quality level of programs and education. Hr. Hansen moved to set a special meeting_for school budget at 6;30 80_2. 1979 in the assembly chambers in accordance with_A,S.___Zitle Seconded by Mr. Peotter. Motion carried unanimously. The first reading of the borough budget will be at this special meeting also© VII PUBLIC HEARING A. Ordinance /179-7-0 Amending Ordinance 08-11-0 (Budget). Mr. Peotter moved for adoption of Ordinance #79-7-0. Seconded by _Br, Hansen. Mayor Wallin closed the regular session and opened the public hearing. No .one spoke FOR or AGAIHST. Public hearing closed; regular session reconvened. Motion carried unanimously. VIII OLD BUSINESS A. Resolution •09-12-R With Respect to Confidentiality of Execu- tive Sessions of the KIB Assembly. Mr. Peotter read the resolu- tion. Dr. Emmick_moyed_for_adcption of P.esolution #79-12-R. Seconded by Mr. Peotter. It was stated that considering the oath taken by the assembly members and the state law, the resolution is not necessary and that the maker of the resolution should be present at the time action is taken. Mr. Jack moved to amend to delete paragraph_4._ Seconded by_Dr. Empick„Motion_ failed 3-3; Dr. Emmick, Hr. Fearn and Hr. Jack cast YES votes with Mr. Hansen, Mr. Ofg_and Hr. yeotter casting_r1Avotes. Mr, Hansen_moved_to.defer_to_the .next regular meeting. Seconded by 1#"_.gg.!M9ti9n_Parried5-13 Dr. jPamiok3mr..Fear12_,_Pr.__H4Pqq11, Mr. Jack and Mr. Ogg cast YES votes with _Hr. Peotter.casting_one NO vote. B, Akhiok Presentation-nayor Andy Kahutak. Mayor Kahutak made his presentation recommending the borough support MB 200. Although they need a new school building, it is important that a new roof be put on the existing school building as a safety measure. He explained Akhiok priority requests. Mr. Jack moved to direct administration to send_a letter of suPp_ort of jp3 200 Public hearing_closed;_ regular session reconvened. __Motion _gArried unanimously. C, Royal Large Issue. Dr. Emmick read the correspondence dated March 28, 1979. Hr. Hansen moved to sell the 4.22 acres to Mr. Large for $351.900 as per the_adyice of the_borough_ attorney. Seconded by Mr. Ogg. A five-minute recess was called at 7:55 P.M. Motion failed 2-4; Mr. Hansen and Mr. Ogg voted YES with Dr. Emmick., Mr. Fearn, Mr. Jack_and_Urt_Peotter casting NO votes. It was pointed out that the,borough attorney has filed an intent to appeal. The manager was directed to inform the attorney. Mr. Ogg moved not to appeal the Royal Lar e case. Seconded by Mr. Hansen. Dr. Emmick called,for a voteto. determine whether or not to vote on the last motion (not to appeal). Seconded by Mr. Jack. Motion carried 5-1; Dr. Emmick, Mr. Fearnt Mr. Hansen, Mr. Jack and Mr. Peotter_voted YES wq.th Mr. Ogg casting one 7';0 vote. liotion_not_to_appeal_failed_175;_ • KINk.SSEMBLY MEETING-APRIL 5, 1979 Mr...Ogg cast one YES vote with Dr. Emmick, Mr. Fearn, Mr. Hansen, O'Ir. Jack and Mr. Peotter casting_NO votes. D. Proposals for Site Surveys & Soil Studies for Larsen Bay and Ouzinkie High Schools (Items B & C February 6th meeting). Mr. Jack read the correspondence. Mr, 'Jansen moved for approval of the_proPosale__fOr site surveYs.for both_schools. Seconded by Mr. Jack.__Motion carried_unanimously. E. Ordinance #79-5-0 Prohibiting Prolonged Occupation of Borough Owned Lands. Mr. Ogg read correspondence from Richard W. Garnett III, borough attorney, reference Notion to Reconsider. In light_of.the_cemmunique Mayor Wallin ruled her ruling on this matter stand. Mr. Jack moved for reconsideration of Ordinance #79-5-0. Seconded by_klr. Fearn. Motion carried 472;_ Dr. Emmick, Hansen and Mr. Qgg_yoting NO. Hr. Jack called for the original motion to be restated as a matter of clarification. Dr._..E;mmick moved to amend by substituting.an_ayllendment_to it 1.8, Chapter 18.35._defining_Trespass-Posting of Property-Penalty to replace the t9fI OrOnance 09:.7-0.--seconded by Mr. Peotter. Motion to substitute_carried_by_unanimous.roll call vote. Mr, Ogg felt the substitute ordinance was unnecessary. Mr. Jack the previous _question. Seconded by Dr..rmmick. Notion. carried by unanimous roll call vote. Main motion,.by. substitution, parried 5-1i Dr..Emnlick, Mr. Fearn, fir. Hansen, Mr. Jack and Mr. Paotter_yoted YES with Mr. Ogg casting one HO vote. PAGE 3 IX MANAGER'S REPORT 1. In response to the assembly's request to provide maps dis- tinguishing the parcels of land the borough has selected a base map has been prepared indicating the general locations of parcels selected as well as detailed location maps. These maps are 81/2 by 11 inches, giving legal descriptions and will be avail- able in the clerk's office and the manager's office. 2. Re: High school swimming pool. The consulting firm of Crews, McInnes & Hoffman have given a confidential report for Presentation to legal counsel to be used in litigation. On March 28th, Mr. Cameron of Master Pools of Seattle came to evaluate the possibility of replacing the pool liner with a gunite liner. He stated it was feasible to replace the liner with a gunite system and would prepare a proposal for his firm. Of the other two firms, one would require a fee to come investi- gate the situation, the other declined because of their lack of experience in Idaska. The figure presently used is $170,000. 3. The school district presented a billing from Kodiak Drilling Company for modification of the well at the Chiniak school. This was authorized by the assemblymembers present at the Chiniak school open house March llth. Mr.Jack_moved to pay Kodiak Drilling Company in_the amount of 776.94 (this included a new pumpl„__Seconded. by Mr. Hansen.. Motion carried by unanimous roll call vote. 4. Responding to questions asked by citizens of Bells Flats, it was explained until such time as a national cadastral survey has been performed title cannot be granted to the lands in question. 5. Reminded that the Citizens Committee from Service District will meet with the assembly at 7:00 P.M. April 10th in the school district conference room for discussion of the matter of services . and the implications of the turn down of annexation. 6. Reported that the state has given tentative approval to the Karluk airport proposal which has been up for review for two years. This has been.placed on the construction schedule. 7. The Department of Environmental Conservation asked that a resolution be introduced to the assembly to designate signatories for finalizing grant applications for sewer and water in Service District #1. Dr. Emmick moved_foradcption of Resolution #79-23-R. Seconded by_Mr. Peotter. Notion carried 5-1 with Ogg_opposed. 8. Reported that MB 184 had been investigated in Juneau. DEC had stated the prospects for passage were slim; this would affect P & Z powers in second class cities. Mr. Denslow stated he had not heard the rumor of a move to restrict local P & Z authority. KODIAK ISLAND BOROUGH SPECIAL MEETING-MARCH 12, 1979 (A Verbatim Record is on File in the Clerk's Office) CALL TO ORDER The meeting was called to order by Deputy Mayor Arnold Hansen at 5:35 P.M. in the School District Conference Room. II ROLL CALL Present Mr. William Fearn Mr, Arnold Hansen. Mr. Edward Jack Mr. Dan Ogg Mr. James Peotter A quorum was established. III ITEMS OF BUSINESS Absent Dr. Michael Emmick (excused) Mrs. Sandra Kavanaugh (excused) Mrs. Betty J. Wallin (excused) 1. Royal Large Issue. Mr. Peotter read correspondence dated \\ March 6, 1979. Mr...._.J4ck _mcved_for an_exPelltive ession. \I Seconded by Hr. Fearn. Motion carried modority vote_; Fearnklr. Jack and Mr. Peotter voted YES.withJir,_Nan_sen and Mr. Ogg casting NO votes. Mrt_ Ogg_ moved_for reconsideration, \t, Mr. Hansen seconded. Hr. Hansen Mr. JackHr. Peotter voted YES with Mr. Fearn coating_ oneD n a vote. Motio carried 4-1. Main motion (whether or not to have an executive_ , ) 1 , , Ogg and Mr. session) carried 4-1; Mr. Fearn, Mr. Hansen, Mr. Jack and Mr. 0 t t 0, Ogg voted YES with Mr. Peotter castirlg_one NO vote. 1 An executive session was called at 5:45 P.M. Meeting reconvened at 6:30 P.M. The clerk explained that Mr. Sharon had talked with Mr. Hancock, attorney for Mr. Large, on the offer. If the offer is not accepted, the borough would normally have to post bond by March 16th but Hr. Hancock had waived that date and would give time until April 6th for posting bond. There are three alter- natives: 1) reject the offer as it stands, 2) accept as it stands, and 3) reject and renegotiate the purchase price. Mr. Peotter felt that the borough has a possible ground for appeal. Proposed borough grant sale at this time but continue negotiations and proceed with appeal. Mr. Ogg felt the borough would not get another offer if this was not accepted. Main motion, ,4sdeferrecl_frga March 8th meetir.1_,g_l_ failed .3-2; Mr. Hansen, Mr. Jack and Mr. Ogavoted YES with Mr. Fearn and Mr. Peotter casting NO votes. Mr. Peotter moved to direct the attorney to appeal and continue nego:tlaTions_with_ Mr. Large. Seconded by Mr. Fearn. Hr. Jack pointed out that if the borough does not appeal, the land will automatically revert to Mr. Large. He preferred to sell at $35,000 but not at $10,550. Motion failed 3-2;_. Mr. Fearn, Mr. Jack and_Mr.. Peotter voted YES with Mr. Hansen and Mr. Ogg casting NO votes. Hr. Peotter moved that another special meeting be held to considerL appeal when more members are present prior to ADril 6th. Seconded by Mr„.Fearn,_ Motion_failed Fearn, Mr, Jack. and Mr. Peotter voted YES with Mr. Hansen and -Mr. Ogg castin.g. NO_votes• Mrt_J.ack moved_to_continue negotiations_while_we_ consider the_possibility_of appeal and hold a special meeting prior to April 6th on March 30th. Seconded by Mr. Peotte.r.., Mr. Ogg moved to amend to delete "appeal" from the motion. Seconded by Mr. Fearn. Amendment carried 4-1;_mr._Fearn,_Mr. Hansen, Mr. Jack and Mr. Ogg votes YES with Mr. Peotter casting one NO vote. It was pointed out that the appraised value of this land is E35,000 and the offer is $35,000. Main motion failed 3-2i Mr. Fearn, Mr. Jack and Mr. Peotter voted YES.with Mr. Hansen and Hr. Ogg casting NO votes. Mr. Peotter moved to reconsider the offer of *35 000, _Seconded_by____Zir,_ Jack„ Motion carried 4-1; Mr. Fearn, Mr. Hansen Mr. Jack and Mr. Ogg_voted KODIAK ISLAND BOROUGH ASSEMBLY SPECIAL MEETING-MARCH 8, 1979 (A Verbatim Record is on File in the Clerk's Office) I CALL TO ORDER The meeting was called to order by Mayor Betty J. Wallin at 5:37 P.M. in the Borough Assembly Chambers. II ROLL CALL Present Absent Mr. William Fearn Dr. Michael Emmick (excused) Mr. Arnold Hansen Mrs. Sandra Kavanaugh (excused) Mr. Edward Jack Mr. Dan Ogg Mr. James Peotter Mrs, Betty J. Wallin, Mayor A quorum was established; III ITEMS OF BUSINESS 1. Items X B and X C of February 6th Meeting-Proposals for Site Surveys S Soil Studies for Larsen Bay and Ouzinkie High Schools. Mayor Wallin explained that the original motion acknowledged the proposals rather than approving them and that this was a "housekeeping" action originally. The Clerk stated she had re- ceived a call from Mary Ann Higgins, State Department of Trans- portation and Public Facilities pointing out that they had re- ceived plans and specs from Maynard S Partch concerning the Larsen Bay School but to date had not received a grant application on either Larsen Bay or Ouzinkie schools. She stated it had been changed to a cash advance system from a reimbursement type program. It was suggested action be postponed until Mr. Denslow's return. Mr. Peotter moved toRostRone any action on. PrOPosals_for_ site surveys and soil studies for Larsen Bay and Ouzinkie_high_ schools. Seconded by Mr. Hansen. Motion carried by unanimous roll call vote. Mayor gave direction to the Clerk to notify the contractor to cease until the assembly has_authorized expenditure of these funds. 5bP_direoted_that_the_managr should contact the State and_get clarifigation_ of the_ prpoeclure rewarding this and_report back_ to___:the, assembly as soon as_ Rossible so that it ean be placed on the april 5th agenda. 2. Royal Large Litigation. Ben Hancock, attorney for Mr. Large: Stated the judgment has been signed by the superior court which confirms the t10,550 sale figure. Mr. Large was awarded attorney's fees and costs. In the hope of bringing the litigation to an end, Mr. Large again made the offer to the borough to pay $35,000 for this Property. This information will be forthcoming to the assembly from their attorney, Mr. Sharon. The borough would have thrity (30) days to appeal. kirtHansen_ moved to sell the tract_to RoYal Large for the offer of 05.000._ Seconded by_Mr. Ogg. Mr. Jack moved for an executive session to discuss the matter. SecoPnded bY Mrt_j:earn. Motion carried 3-2 (a maj ority vote). Meeting reconvened at 6:03 P.M. In as such as the assembly lacked communiciation from their attorney because of cancelled airplane flights, Mr. Peotter moved to defer action to a special meeting_o_n_Monday.,_ March12,1979 at $:30 P.M. in order_to have the information from the attorney. Seconded by Mr._Jack. Motion carried_bY_urIanimOus roll call vote. The Clerk was directed to inform_Dr EmmicX_Of this_SPecial meeting and have Mr. Sharon ESP the letter tomorrow. -3. Resolution #79-13-R Designating Individuals Authorized to Execute Negotiable Instruments for the KIB. Mr. Ogg moved to adopt Resolution #79-13-R. Seconded by Mr. Peotter. Mr, Jack moved to add one additional name to the list, _Assembly- man James _Peotter._ _Seconded by Mr. Fearn. Mayor Wallin stated that according to Title 2 this cannot be done. Mr. \ TO KODIAK ISLA0H5 BOROUGH ASSEMBLY NEETIrG-DECEI'IBER 7, 1978-tGMTDC. I CALL'TO ORDER II ROLL CALL III ACCEPTANCE OF AGENDA IV MINUTES OF PREVIOUS MEETING A._ Asseml)ly-reg.-Nov. 2, 1978 (Tni - ' • ir. -Dale Tubbs, Land Mement.Consultant._,., 2207 Spenard Road,'-f7;1264; Anchorage 99O$. :SBjECT:ot P-4 (I ease FOLD Copy of P 81 Resolution -DATE --' HDA1P: Enclosed is the P & Z Resolution., request to fir Milligan „ • DATE SIGNED RETAINED BY SENDER Os 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, 197P D. Federal Shared Revenue Compliance Report Dated August 31, 1973 E. Statement of Sources of Funds & of Program Costs Compapnity Development Block Grant Funds for 11-2g- 76 to 6-30-78 F. Ltr. of Internal Control & 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,E,F,G, Kadiak Subd. to Residential C. 1st Rdg. Ord. i78-31-0 Rc;;oning of Trs. A,B,C,D,E,F,G, Kadiak +, p—,;„,, KODIAK ISLAND BOROUGH ASSEMBLY MEETING-DECEMBER 7, 1978 PAGE 4 Public hearing closed; meeting reconvened. There were comments by the assembly for bcth outcry auction and 'sealed bid. MrLJack movedto_amend_the_ordinance to removed Sec' Seconded_by:r. Yearn. f4rs. _Kavanaugh_moved to table Ordinance #78=25-0. Seconded by Mr. Fearn. Motion failed 2-5 with Dr. Emmick„Mr. Hanson„Mr. Jack, Mr- Ogg and Mr. Pcptter casting NO votes, Jqr. .Jack_m6red_to direct ,thg manager_that_all_gravel leases from this day on be made by outcry auction. Seconded by_Mrs. Kavanaugh.Amendment for outcry carried_4-3ewith Dr. Emmick,__Mr._Hansen and Mrl___Peotter_castint NO votes. Amend- ment to delete 18.60.030 carried by unanimous roll call vote. Main motion carried 5-2 with Mr. Fearn and Mrs. Kavanaugh casting NO votes. G. Capas Appeal of P 6 Z Commission Decision of Vacation 8, Replat of Lot Line Contiguous to Lots 11 and 10ABIock 1, Russell Estates. Mrs. Kavanaugh read the correspondence. Mrs. Kavanaugh moved the appeal of Yr. Capas be 'granted. Seconded by Mr. Hansen It was stated this item was placed under Public Hearings so that notices could be sent out to all interested neighbors as a protection to the borough. Mr. Garnett stated there •is no provision in Title 29 for assembly involvement in the process; the code provides for the assembly to sit as a board of adjustment, Mrs, Kavanaugh withrew her motion with the consent of the second. 7)r. Emmick moved that since this was-advertised.as a public hearinrY that we hold that'public hearing. Seconded by Mr. Jack. Motion carried by unanimous roll call_vote. Mrs. Kavanaugh moved that appeal of Mr. Capas appeal be approvec. Seconded by Hr. Nansen. Meeting closed public hearing opened. Michael Sharon, attorney for Fedon John Capas. Spoke for the appeal. Asked that Mr. Capas not be accorded special treatment one way or another. eviewed the progress of this request for _ replat. Stated that Ir. Capas cannot be divested of his vested property rights. He purchase this property as P-3 as did his neighbors. Illustrated on chalk board the effect this • replat would have ,on I,ots 11 and 10A, Block 1, .Russell Estates. It was pointed out that Mr. Capas had net all.require- ments and stipulations. Mr. Capas's structure is a triPlex With a potential for a fourplex. Fred Gaffney, Lot 9, Block 1, Russell Estates: Spoke against granting the appeal. Presented-a petition for denial from the property owners of Larch Street. Presented background and testi- mony stating the surrounding property owners felt there-was too great a density for this area and it is their desire to have the area rezoned from R-3 to R-2. Public hearing closed; meeting reconvened. Mr. Milligan clari- fied the R-3 regulations. Motion carried 6-1 with Mr. Jack casting one NO vote. Mayor Wallin recess at 9:55 P.M. meeting reconvened at 10:00 P.M. ,.< H. Royal Large Notice of Lease Proposal on P-4, Tract'A, 3ells -- Flats AK. Mr. Fearn read the correspondence. Mrs. Kavanaugh moved to approve borrow site application on P-4, Tract I, Bells Flats _AK Subd. to Royal Large_fpr one year.__Second_ed by_ Mr. Hansen: This lease expired on October 30, 1978 under the old ordinance. Mr. Ogg moved to amend to waive outcry for this spec- ific request. Seconded by_Mrs. Kavanaugh. Public hearing opened meeting closed. Stan Fischer epresenting Royal Large: Spoke for approval of the lease. Requested modificiation of one condition, namely, Item #1 depth of excavation. Suggested Depth of 10 to 12 feet but no lower than water table. No one spoke against the ordinance. Public hearing closed; meeting reconvened. Pale Tubbs review and recommendation concerning P-4, Tract Bells Flats 4K KODIAK ISLAND BOROUGH ASSEMBLY MEETING-DECEMBER 7 1978 PAGE 3 governments have been asked to give in kind assistance which in this instance would be from the planning department and would not require addition staff. Motion carried by unanimous roll call vote. Mr. Fischer, representing Cessna Brothers Trucking, filed a petition too late for the agenda. This will be brought up under Audience Comments. VII PUBLIC HEARINGS A. Ordinance 108-22-0 Deletion of Sec. 20 of Ordinance #73-4-0, Title 2, Chap 2.04.210 of KIB Code, Dispensing of Liquor on Election Day. ril.__Hansea_moved for adoption _of Ordinance/78-22-0. Seconded by Mr. Ogg. Meeting closed; public hearing opened. No one spoke against the ordinance. No one spoke for the ordinance. Public hearing closed meeting reconvened. Mr. that liquor establishments inside the city are day and this would give equal right to borough Motion carried 4-3 with Dr. Ermick, Nr. Fearn_ casting NO votes. B. Ordinance 1:78-23-0 Proposal for Compensation of Regulatory and Quasi-Judicial Boards 6 Commissions. !'■r_,__Teotter_moved for adoption of Ordinance #78-23-0. Seconded by Dr. Ernmick. Meeting closed; public hearing opened. Hansen stated open on election establishments. and Mr. Peotter No one spoke against the ordinance. No one _Spoke for the ordinance. • ' • Public hearing closed; meeting reconvened. _Dr. Lmmick_ moved to amend to delete "daily' in Section A. Line 3. Seconded by Hr. Hansen. Dr. Emmick moved to amend to add '-Ittended" after 'session' in Section A, Line 3. Seconded by Mr. Hansen. This ordinance was initiated by the assembly. Second amend- ment carried by unanimous roll call vote. First_amendment. carried by unanimous roll call vote. Main motion carried,5-2 with Mrs. Kavanaugh and Mr. Ogg casting NO votes. C. Ordinance /78-24-0 Amending Sec;. 411 of Personnel Ordinance #77-31-0. It was explained this was initiated by the assembly to'be referred t6 the personnel board .for their recommendations. Dr,_Peotter moved to refer this ordinance to the Personnel Board for their recommendations. Seconded by Mr, Motion carried 4-3 with Dr EmmickHrs. _Kavanaugh__ and Mr. Ogg casting NO votes. Mrs. Kavanaugh moved to adopt Ordinance #78-24-0. Seconded by Mr. Hansen. Meeting closed; public hearing opened. No one spoke against the ordinance. No one spoke for the ordinance. Public hearing closed; meeting reconvened. Dr;_Emmick moved to table until recommendation from Personnel Board is received. Seconded by Mr. Ogg. Motion to table carried6-1 withMrs . Kavanaugh casting one NO vote. D. Ordinance. #78-25-0 Amending Title 18 of KIB Code Gravel Site Leases. Mrs. Kavanaugh moved for adoption of Ordinance #78-25-0. Seconded by Mr. Jack. Meeting closed; public hearing opened. • No one spoke against the ordinance. No one spoke for the ordinance. KODIAK ISLAND BOROUGH ASSEMBLY MEETING-DECEMBER 7 1978 PAGE 5 lwas read by Mr. Jack. Mr. Jack moved to amend to stipulat the contract include the recommendations of Mr. Tubbs, Seconded :by Dr. Emmick. Second amendment carried by unani- 1 mous roll call vote, First amendment carried by unanimous roll_call_votp. Main motion carried by unanimous roll_call i vote.. moved.to take Items I, J, K and L as one item. Seconded by Mr- Peotter. Motion carried by unanimous roll call vote, . 3. Ordinance #78-12-0 Rezone L. 1, Block 1, Tract 11-, USS 3218 Unclassified to Industrial (Alagnak, Inc.) J. Ordinance #78-13-0 Rezone Lot 2, Block 1, Trac-CM,-USS 3218 Unclassified t� 'Industrial (L. Wittich) K. Ordinance 078-14-0 Rezone Tract S-2, USS 3218 Unclassified to Industrial (Brechan Enterprises) L. Ordinance #78-15-0 Rezone Tract S-4, USS 3218.Unclassified to Industrial (Welborn Construction Co.). . , Mrs. Kavanaugh. moved for adoption of Ordinances ;!78-12-0, 78-13r0, 7,8-14-0. and 78,15-,0. Seconded: by Mr. Hansen:. Meeting closed; Public hearing opened. Ron Chase: * Stated there has been a desperate need for the establishment of"an industrial-zone for.a'number of-years As without-it is'stifling.other.industries and business. Lorna Arndt: Agrees with Mr. Chase and stated that as a nearby property owner there has not been disturbing noises. Russell Welborn: Concurs with'Mr. Chase and feels unclassified is an unsuitable zoning. Jim Fisk: In favor of the rezoning. Royal-Large: In favor of:the rezoning. Mrs. ,Kavanaugh read,a letter from Reverend_Richard D_LJTero against the rezoning. Public meeting close; meeting reconvened. • Mrs. Kavanaugh withdrew her motion with the consent of the - second. Mrs. Kavanaugh moved to remove the items from the table. Seconded by Mr. Jack. Motion carried 6-1 with Mr. Fearn casting one NO vote. Mrs. Kavanaugh moved for adoption of Ordinances 78-12-0, 78-13-0, 78-14-0 and 78-15-0. Seconded Mr. Ogg, 'Mr. Denslow stated that some industrial is being recommended in that area in .the new comprehensive plan. Motion carried by unanimous roll call vote. M. Donald Erdman Board of Adjustment Hearing Re: Vacation and. Rziplat of Lot Line Common to Lots 14 and 15, Block 2, Monashka Bay Subdivision. Dr. Emmick read the correspondence. Mrs. Kavanaugh moved that the vacation and replat of lot line common to Lots 14 and 15, Block 2, Monashka Bay AK Subdivision . as requested by Mr. Erdman be approved. Seconded by_M.r. Hansen. Meeting closed; public hearing opened. Donald Erdman: Spoke for the item. Felt this would make a "-better lot and would give better drain field area. Is " objecting because this is a simple vacation and replat, not a subdivision. •The lot created would be a five- acre site. Ronald Chase, Lots 8, 9 and 11, Block 2, Monashka Bay AK Subdivision. Is concerned that this action would cause his water to become contaminated. Exhibited pictures of the area in question and stated the water table is approximately , twelve inches from the surface. KODIAK ISLAND BOROUGH ASSEMBLY MEETING-DECEMBER 7, 1978 PAGE 6 Mrs. Wallin stated the assembly would continue past 11:00 P.M. to make a decision on this item. Public hearing closed; meeting reconvened. It was pointed out Mr. Erdman is requesting a vacation and replat to enlarge his lot; any future plans to build on this property would have to meet the requirements of the building code as set out on the building permit. Motion carried_473 with Hr. Jack, Mrs. Kavanaugh and Mr. Ogg_castillg_NO_votes, The meeting was recessed at 11:.20 P.M. to reconvene at 9:00 A,M. Friday. 1978. , Meeting reconvened at 9:00 A.M., December 8, 1978. VIII OLD BUSINESS A. Financial Statements for Year Ended June 30, 1978. B. Community Development Grant Letter on Internal Control and Accounting Procedures Dated August 31, 1978. C. Special Report on State Revenue Sharing Compliance dated August. 31, 1978. D. Federal Shared Revenue Complaince 'Report Dated August 1978. E.. of Sources of Funds and of. Program Costs Community Development Block Grant Funds for 11-29-76 to 6-30-78. F. Letter of Internal Control and Accounting Procedures August 31, 1978. Mrs. Kavanaugh moved for acceptance of Items A through F. Seconded by Dr. Emmick. Mr. Denslow stated he had asked Peat, Marwick 6 Mitchell to look at the 1978-79 budget for proper form and to set up recommended accounting%procedures. This report may come up again in January or February. Motion carried_ly_unanimous roll pall vote. IX NEW BUSINESS A. Setting Date for January Meeting (Jan. 12). Mr_t_panson moved to set the date for the January meeting for Friday, January 12„1979 at 6:30 P.M. Seconded by,Yr. Ogg. Motion carried by unanimous roll call vote. B. First Reading Ordinance #78-30-0 Rezoning of Tracts A, 13, C, D,,E, F and G, Kadiak Subdivision to Residential-R-2. Hansen moved to adopt Ordinance_178-30-0. Seconded by Mrs. kavanaugh. Mr. Peotter arrived at 9107 A.M. tin 5-0 with Mr. Peotter abstaining. C. First Reading Ordinance #78-31-0 Rezoning of Tracts A, li, C, D,-E, F, and G, Kadiak Subdivision to Business. Mr, Hansen moved that Item C be eliminated from the agenda. Seconded by Mr. Ogg. Motion carried by unanimous roll call vOte. D. First Reading Ordinance #78-32-0 Amending Title 17 of KIB Code Re: Dormitories. Dr. Emmick read the correspondence. Dr. Emmick moved for .adoption of Ordinance #78-_32.70_at_first reading. Seconded by Mrs. Kavanaugh. The manager acknowledged the presence of the Honorable Dan Busch, Chairman of the P & Commission. Mrs., Kavanaugh moved that a section be added_pro- viding adequate parking. Motion died for lack of a second. The P & Z will consider the parking oriinance at a later date. Motion carried by unanimous roll callvote, Mrs. Kavanaugh moved to request that the .P & Z consider the parking_provisions of the......ordinanee_rlative to dormitory standards and make a recommendation to the assembly. ____Seconded by Mr. Ogg. Motion carried tT_Iillanimolks.roll call vOte. E. First Reading Ordinance #78-33-0 Amending the Schedules Relating to Pay Ranges and Class Titles for Employees of KIB and Providing an Effective Date. Mr. Hansen read the corres- pondence. Mr. Hansen moved for adoption of Ordinance #70-33-0. Seconded by Mr. Peotter. To provide for ar -planation of the manner i--rhich the personnel board pived at their recommenc figure, it was necessary ror this item to be ME.MORANDUM DATE: 30 November 78 TO: Honorable Mayor and Borough Assembly FROM: • Stu Denslow • SUBJ: Information Report RE: Borrow Site Lease application, Lot P-4, Tract A, Bells Flats Alaska Subdivision (Royal Large) On November 1, l978 the Planning and Zoning Commission com- pleted action on their review of a request by Mr. Royal Large for a Borrow Site Lease on the referenced property. The Commission has recommended that you lease the parcel to Mr. Large for one year only, pending completion of the Bells Flats Land Use Plan. The Commission has recommended that excavation on the west- erly portion of the tract be limited to the cleared area around.:the electrical vault and that the grading plan and quantities be approv- ed by the Planning Department prior to removal. The easterly por- tion is to be regraded and excavation is not to exceed five (5) feet below the grade of Sargent Creek Road. The attached lease application and supporting documents are presented for your review. If you elect to approve this applica- tion the appropriate contract will be prepared by the administration and presented at a subsequent meeting for your approval. DALE P. TUBBS LAND MANAGEMENT CONSULTANT 2207 SPENARD ROAD, SUITE 204 ANCHORAGE, ALASKA 99503 TELEPHONE (907) 279-9937 November 28, 1978 • Mr. Stuart 0. Denslow Kodiak Island Borough P. 0.. Box 1246 Kodiak, Alaska 99615 Report on Gravel Leases Dear Mr. Denslow: Kodiak bland Borotko KODIAK, RECE1V NOV 3 0 1978 AM 71019011112111205141ble A The enclosed memo is a report of the findings of an on-site inspection of the gravel leases on Tracts A and B of the Bells Flats Alaska Subdivision. To supplement that report, the following additional comments are provided: Tract A Parcel P-1. Lease to Brechan Enterprises 1. Lease has been running since 9/10/69. 2. This has been the most active gravel operation at Bells Flats. 3. Lease expires September 10, 1979. 4. Approximately $18,642 has been collected in lease payments since 1969. 5. The lessee is now hauling gravel from Tract B to this site for processing. Parcel P-2. No active lease at this time. 1. The former lessee or someone else is continuing to use portions of the area for warehousing and vehicle storage without authorization. Mr. Stuart 0. Denslow -2- November 28, 1978 Parcel P-3. No present lessee. Parcel P-4. Lease to Royal Large expired 10/30/78. 1. Mr. Large has applied for a new lease to be negotiated to him under Ordinance 18.68. The lease application is presently being considered by the Planning and Zoning Commission. 2. Mr. Large has had this site under contract since 10/30/72. . The revenues have been $1,200 per year with an additional payment of $2,057.75 for removing more than 4,800 cubic yards of gravel in 1977. Total return from this parcel has been $12,875. 4. To date, the excavation has been limited to that area lying north and easterly of Sargent Creek Road. Parcel P-5. No active lease - (Metal Dump). 1, The KIB Assembly minutes of 4/17/74 removed this parcel as a borrow site. 2. An unauthorized scrap metal salvage operation is taking place at the site. Parcel P-6. Leased to Deater. 1. Site was leased to Deater 4/14/77 and a one year renewal was issued 6/14/78. 2. Lease was issued and reissued without realizing the KIB Assembly action on 4/17/74 withdrew this parcel for use as a gravel site. 3. As of August, 1978, no more than a,few cubic yards of gravel had been removed or disturbed. 4. Make sure this lease is not automatically renewed in April, 1979. K0UlA: ISLAND S0R0CGK _ PLANNING AND ZONING C0X3ISSI0N; RESOLUTION Nn. K-78-3 A 8EOLOTION OF THE KODIAK T3LAgD BOROUGH PLANNING AND ZONING COMMISSION RECOM}000DI0G THE BOROUGH ASSEMBLY LEASE, LOT P-4, TRACT A, BELLS FLATS ALASKA SUBDIVISION AS A BORROW SITE FOR ONE YEAR TO MR. ROYAL LARGE. WHEREAS, Mr. Royul Large has requested that he be granted a Borrow Site Lease ou.Loc P-4, Tract ,A, Bells Flats Alaska Subdivision and WHEREAS, the Planning and Zoning Commission has held a hearing to review this application, and WHEREAS, the Commission considered the recommendations of Mr. Dale Tubbs, Borough Lands consultant, and the Borough administration in formulut- liog its recommendations. NOW THEREFORE BE IT RESOLVED by the Kodiak Island Borough Planning Commission that the Commission recommends Mr. ,Largo be granted a one year lease, (without renewal options), for Borrow Site purposes, subject to the following 'tnoditioua: 1. That excavation of the easterly portion of Lot P-4, lying between Sargent Creek Road and Sargent Creek extend no deeper than five (5) feet below the existing road grade of Sargent Creek Road. 2. That excavation on the westerly portion of Lot P-4 be limited to the cleared area around the electrical vault. 3. That prior to removal of any materials on the west- erly portion, the excavation and grading plan be approved by the Planning Department. PASSED AND APPROVED this l day of November ,478. ATTEST: P & Z Secretary KUOIAK ISLAND BOROUGH PLANNING AND ZONING COYDaSSION KODIAK ISLAND BOROUGH • PLANNING & ZONING COMMISSION MEETING e.- MINUTES : • - (Continuation of regular meeting'held October 18, 1978 NOVEMBER 1, 1978, at 7:.30-P.M. Held in the :Borough Assembly-ChamberSH 41. IN FAVOR: IS fearful that a duplex:could be put onTthe propertyif leftthe -size it-is-at-present. - MR. ERDMAN: Feels that there is good drainage on the property, and seriously questions the quality of the water as presented by Mr. Chase and Mr. Hernstein. Mr. Brighton checked the water, but later he retracted his o.k. because of the complaint received from' Mr. Chase. (Discussion between some Commissioners, Mr. Chase and Mr. Erdman took place.) Chairman Busch-closed the public hearing'and.opened the regular meeting.. Mr. Milligan offered to call Mr. Cherry at the Department of Environ- mental Conservation Office in Anchorage and ask him to have one of his field people come down, take a look at the property & make a determina- tion or request the necessary tests of the site to determine whether or not it is suitable. Mr. Ball moved that the Commission table this request. Seconded by Mr. Perez. Motion passed by unanimous roll call vote. IV COMMISSIONER'S COMMENTS RON BALL: Welborn/Brechan (Alagnik). He moved to remove from the table for discussion. Seconded by Mr. Pugh. (Includes Tract S-4, USS 3218 by Mr. Welborn; Tract S-2, USS 3218 by Brechan; Lot 1, Tract "M" & Lot 2 Tract "M" by Mr. Wittich & Alagnik Inc. of USS 3218). Motion passed 4-2 with Mr. Busch and Mr. Pugh casting NO votes. Some discussion followed between the Commissioner's. Mr. Ball moved that the Commission return this request to the Borough Assembly under the same conditions that we sent it to them the first time; (rezone those four pieces of property to industrial.) Mr. Milligan advised that the Commission have a statement saying whether or not there is a need for any type of buffering around that property at this time. Mr. Ball restated his mo- tion, and moved that the Commission rezone the lots in question to in- dustrial without any buffer zone, and return it to the Borough Assembly. . Seconded by Mr. Pugh. (Note: Check out whether the Commission can put a condition on this matter re: Brechan maintain drainage in that swamp area, instead of continuing to fill it in.) Motion passed 4-2 with Mr, Busch and Mr. Baker casting NO votes. = • N, lElugh.moved the Commission take request for ,a lease application by Mr.,,ROyalLarge for a tract out in Bells Fiats off the table. Seconded Mr. Anderson. Motion passed 5-1 with Mr. Perez casting a NO vote. Mr: Milligan gave update on this request. Staff recommended that'the only portion of Tract P-4 that be considered forstich lease would be that portion between the road and the creek that has been excavated for some time, where there still may remain some materials to be removed and where'tbere is some necessary site restoration and fill work to be done to eliminate standing waters and to bring the property back to within 5' of the road, although we feel that it's probably quite close to no more than 5' below the road, and also a small portion of P-4 near an abandoned power house where there has been some excavation. Is lo- cated opposite the road. Also recommends that no lease be recommended ' to the Borough Assembly that has covered a peritcd of time greater than one year. • Mr. Ball moved that the Commission make a borrow lease to Royal Large on Tract P-4, Bells Flats Subdivision, and that' all of Tract P-4, and any excavation or an' work that is done on westerly side of - Sargent Creek Road must be first approved by the borough Planning staff and engineer. (the borotuh plantititz staff will eome with a plan of what can he taken out or that area, and then Mr. Large will be allow- ed.to remove it. He can only remove .what the boToiTh -planning. staff comes up with, and no more whatsoever. Seconded by Mr. Pu_gh. Motion: passed by. unanimous roll eallvote. (Note: Mr. Pmsch hinted that the staff do It's-homework within the coming month.) • KODIAK ISLAND BO O _/ GH Telephones 486 -5736 - 486 -5737 — Box 1246 KODIAK, ALASKA 99615 October 20, 1978 Royal V. Large Box 2634 Kodiak, Alaska 99615 Re: K -681, Application for Material Lease Dear Mr. Large: Enclosed is the one thousand two hundred dollares ($1,200.00) submitted with your twenty -five dollar ($25.00) application fee for the first year's rent of a new gravel lease. The deposit is not required until the actual lease is tendered to you for signature. Your application has been submitted to the Planning and Zoning Commission for consideration. As of this date, no decision has been reached regarding the action to be taken on your application. Sincerely, Mickie Miller Clerk- Treasurer DPT:mm cc: R. Marmaduke Borough Engineer 0 DALE P. TUBBS • LAND MANAGEMENT CONSULTANT 2207 SPENARD ROAD, SUITE 204 ANCHORAGE, ALASKA 99503 TELEPHONE (907) 279-9931 October 17, 1978 To: Harry Milligan Planning Director Kodiak Island Borough. From: Dale P. Tubbs------ Land Management Consultant Subject: Land Use and Disposal Planning - Bells Flats Area The continued use of Tracts A and B of the Bells-Flats Alaska Subdivision as gravel extraction areas needs review by the Planning and Zoning Commission. An on-site examination of the tracts was conducted by Robert Marmaduke, borough engineer, and myself on August 24, 1978. It is apparent the continued use of , the tracts as a gravel supply can leave the borough with some useless acreage. The gravel extraction should be based on an end resulting land use plan that would leave the borough land of value. The examination also revealed instances of unauthor- ized occupancy. To assist the Planning and Zoning Commission in understanding the existing condition, I submit the following observations and possible recommendations: Tract A Bells Flats Alaska Subdivision Parcel P-1. This parcel is occupied by Brechan Enterprises. There has been considerable excavation within the parcel with some holes 20-30 feet below the road grade. The parcel is also occupied by Brechan's hot mix batch plant and other gravel pro- cessing machinery. No plans have been presented as to the final profile for the parcel. It is not known if the operator intends. to go deeper or move the batch plant and work the gravel beneath it. Recommendation - Require a final profile for the parcel to result ' in a continuing useable industrial site. wh \$, Parcel P-2. P-2 consists of two narrow parcels lying between Sargent 'Creek Road and Navy Tract II. Each parcel averages about 100 feet in width and 800 feet in length. One of the parcels is being used for equipment storage without any apparent authorization. Both parcels are too narrow for extensive development. Recommendation - The two parcels could be cleared for ware- housing use on a lease basis. If Navy Tract II adjoining.the parcels to the east is released for borough selection, a replat of the area would give greater utilization. Need for a fire station may also be appropriate in this area. Parcel P-3. This parcel is bounded on the north by Uganik Drive, on the south by Cape Chiniak Road, and is bisected by Russian Creek. It is 500 feet wide and 1,400 feet long. No existing contracts or leases encumber the area. The Russian Creek channel accounts for one-third of the area. The remaining area is level and does not rise much above the flood plain. Recommendation - Subdivide the parcel into a minimum of three units. One of these would be the river with necessary green belt to protect the river environment. The other two units would have access to existing road and would be utilized for a variety of uses. Gravel extraction is not recommended because of their proximity to the creek. Any extraction could affect the river course and would result in turning otherwise good useable area into a lake. Parcel P-4. P-4 has been under lease for gravel extraction. The parcel lies on both sides of Sargent Creek Road and Sargent Creek flows in and along the east boundary. Excavation to date has taken parts of the parcel down to the water table, rendering those portions unuseable. A request has been submitted to the borough to issue a new gravel lease for the parcel. Residential zoning borders the parcel to the north. Recommendation - Determine a final profTle foarfhe tract and let a gravel contract to groom the site. Any excess gravel could be removed. After the site is rehabilitated, the resi- dential use could be extended into this tract. Parcel P-5. This parcel is commonly referred to as the navy metal dump. The site is at grade with Russian Creek and should not be used for gravel extraction. Recommendation-- This parcel should be subdivided along with .2. KODIAK ISLAND BOROUGH, Minutes for the PLANNING & ZONING COMMISSION MEETING OCTOBER 4, 197$, 7:30 P.M. II III IV CALL TO ORDER The Planning.and Zoning meeting was called to order by chairman Dan Busch in the Borough Assembly Chambers. ROLL CALL Present Mr. Dan Busch, Chairman Mr. Don Baker Mr. Gene Erwin Mr. John Pu:h OLD BUSINESS A. Absent Mr. Phil Anderson (excused) Mr. Ron Ball (excused) Mr. Tony Perez (excused) Borrow Site Lease for Tract P -4, Bells Flats, (Royal Large). Mr. Large has asked for a postponement on his Borrow Site Lease Application. PUBLIC HEARINGS 1. Requesting a rezoning from Unclassified to Industrial, Tract S -4 U.S. Survey 3218, 8.56+ acres, (Mr. Russell Welborn). 2. Requesting a rezoning of Lot 2, Block 1 of Tract M, U.S. Survey 3218 from Unclassified to Industrial, (Leroy A. Wittch). 3. Requesting a rezoning of Lot 1, Block 1 of Tract M, U.S. Survey 3218 from Unclassified to Industrial, (Alagnak, Inc.). 4. Requesting a rezoning - U.S. Survey 3218, Tract S -2 from Un- classified to Industrial, (Brechan Enterprises, Inc.). 5. Section 17.27.030, an interpretation to determine the definition and intent of the use of the word "Highway ", (Industrial Reserve Zoning District). The chairman introduced the above cases; Z -78 -051, Z -78 -059, Z -78 -058, & Z -78 -060. Mr. Milligan outlined the property,.the nature of the re- quests and the remanding action of the Borough Assembly. Chairman Busch closed the regular meeting and opened the public hearing on all the above., l seed Items: :_c ;,':. :g IN FAVOR OF: The following are all those who wished to speak in favor of the above rezoning requests: Mr. Russ Welborn: Doesn't understand the resistance to rezoning from unclassified to industrial. Mr. Bud Fidaoff, representing Shelikof Net Co.: Stated if rezoning were denied their business would have to relocate. Mr. Lou Iani, representing the Alagnak & Brechan rezoning: In regards to the Shelikoff Net Co. property, we were issued a building per- mit, in error, & then leased the property to Shelikoff Net. Without rezoning they will have to move somewhere else, due to someone else's error. In regards to Tract S -2, we want to'put an office complex on the property. Mr. Leroy Wittich: Has an acre of land bordering on Mill Bay Road. Doesn't feel he can build housing due to lack of sewer availa- bility. Wants to put a shop or warehouse on his property. P & Z COmmiSSION MEETING for the 2.0th September 1978 I. CALL TO ORDER II. ROLL CALL III. MINUTES - August 16, 1978 IV. APPEARANCE REQUEST A. Mr. Frank Urabeck executive director Alaska Water Study Committee South Central Water Study (Level B) V. OLD BUSINESS A. Subdivisions - none B: Rezoning ' 1. 'Rezoning Tracts S -2, S-4, and Lots 1 and 2,Tract M' USS 3218 IV. NEW BUSINESS A. Subdivisions 1. Dave Lorring and Ray Tufts subdivision of Lot 4 Block 3 Miller Point Subdivision B. Rezoning - none C. Other -1. Adoption of Karluk Redevelopement Plan 2; Reverend Childs approval of a Foster Home. 3. Royal Large, Borrow Site-•leas-e for Tract. P-4 Bells Flats ■ VII. PUBLIC HEARINGS A. Subdivisions 1. John Capes, vacation and replat of Lot 10 ,.Block 1, Russell. :Estates Subdivision B. Rezoning 1. Kodiak Western, rezone Tract "A" USS 3468 from Service Recreational to Industrial C. Other 1. C.A.. Poythress requesting a variance for .Lots 4, 5, 6 Block 5 Baranof Heights Subdivision VIII. COMMUNICATIONS AND REPORTS A. Communication B. Reports 1. Chairman's Report 2. Staff Report 3. Monthly Building Report IX. COMi1ISSIONER' COMMENTS X. AUDIENCE COMMENTS ADJOURNMENT KIB ASSEMBLY MEETING-SEPTEMBER 7, 1978 PAGE 3 VI D. Pohjola-Status Report Chiniak and Karluk Schools. Mr. Pohjola made his presentation on Chiniak, Karluk and Akhiok schools. 1. Karluk: It will be the decision of the village as to whether they will hold classes in theATCO unit or the Community Hall. They must order enough fuel for the school and the teacher housing. 2. Chiniak: 'The old water well is con- taminated with fuel oil; there are several methods available to be considered in solving this problem. One of them would be to drill a new well as the one drilled last year does not produce an adequate quantity of water. There are presently 13 or 14 children and with the advent of the Job Corps Center there could be 30 to 40 students. There is the possibility of having to'..bus these students into Kodiak to attend school. 3. Akhiok: The school building is eleven years old; time and weather have caused extensive rotting of the roof and floor. These must be repaired and/or replaced. One-half of the building has water in the conduit and must be rewired. The rewiring has been set for October 1, 1978. There is a remote chance •of danger because of the wiring situation. There is also need for major maintenance on the generator. A five-minute recess was called; meeting reconvened at 8:35 P.M. VIII OLD BUSINESS A. Request to Authorize Relocation Expense for Building Official. Dr. Emmick moved to authorize reimbursement for moving expenses in the amount of $1,200 for the building official. Seconded by Mr. Jack. Motion carried 4-2 with Mrs. Kavanaugh and Mr. Peotter casting NO votes. B. Huey DeVille-Lot 10, USS 3100 and Tract P-3. Mr. Gordon stated Mr. DeVille had been requested to cease work on his premises at Lot 10, USS 3100. Requested authorization from the assembly to proceed further as set out in 17.75.040 of the Borough Code. Dr. Emmick moved to enforce the ordinance.. Seconded by Mr. Peotter. Motion carried by unanimous roll call vote. With reference to the equipment an the P-3 property in Bells Flats a cease and desist order was issued by the Borough on P-3 on August 24, 1978. A cease and desist will be issued •on Lot 10, USS 3100; if the cease does not occur, the borough will proceed with court action. IX NEW BUSINESS A. Resolution #78-58-R Authorizing a Three-Year Local Service Roads and Trails Program for KIB 1979-1981. Mrs. Kavanaugh read t mov o do Resolution 78-58-R. Seconded by Mrs. Kavanaugh. rs. aaigh am,toed the motion to 1980 to clear and g rub Bayview Drive and improv that segment of Bayview_Drive in 1980 and to do Woman's Bay Drive in 1981. Seconded by Mr. Jack. Motion carried4m2_ with . Emmick and Mr. Williams J castiDg..a.zp Main motion byifti lmous roll call vote. B. Tax Adjustment-Eugene & Carol Evans. Dr. Emmick moved to grant the adjustment. Seconded by Mrs. Kavanaugh. Motion carried by unanimous roll call vote. C. Tax Adjustment-Sea-Land Service, 'Inc.' Dr. Emmick moved to grant adiustment. Seconded by Mrs. •Kavanaugh. Motion carried by unanimous roll call vote. D. Tax Adjustment-Michael B. & Susan J. Killen. Mrs. Kavanaugh moved the request be granted. Seconded by Mr. Peotter.- Motion carried by unanimous roll call vote. E. Tax Adjustment-Bruce & Harriet Eierman. Mrs. Kavanaugh moved to allow the request. Seconded byMrs. Wasson. Motion carried by unanimous roll call vote. 2:- KIB ASSEMBLY MEETING-SEPTEMBER 7, 1978 PAGE 4 F. •First Reading Ordinance #78-18-0 Amending Borough.Code.to. Two-ASsembly-,Meetings-Per Month, Mrs. Wasson read Ordinance. #78-18-0 by title only. Mrs. Kavanaugh moved for adoption at first reading of Ordinance #78-18-0. Seconded by Dr. Emmick: Dr. Emmick moved to amend at first reading to_provide for a work session.inThandynetion with the second meeting. Seconded_by Mrs. Wasson. Motion withdrawn with the consent of the second,' Mr. Denslow explained the reason for Section B, providing for work sessions in conjuncti66 with the meetings on advice of . counsel. Mrs. Kavanaugh moved to .amend_that._Sect_ion B_be deleted. Motion died for laac of a second. Main motion carried 4-2 with Mr. Jack and Mrs. Kavanaugh castingNO votes. G. First Reading Ordinance 8 0-0 P e din Title 18 of B rou h Code_(Gravel Site Lases). Mayor Wai1.n the 'ordinance by title only. Mrs. Kavanaugirmoved fee., adution-ofOrdinarice #78-19-0 at first rr:ading. Seconded by D Emmiek. Motion carried by unanimous rol vot- H, Bid Award for Port Lions/Old Harbor Bleacher Units. Mr. Denslow explained that during the developing of the budget for the high schools the bleacher units were deleted from the original specifications. Two bids were received. Staff recommends approval of the low bid, $54,C00 by the Wood Butcher Shop. Dr. Emreick moved to award the bid to the Wood Butcher Shop for $54,800. Seconded by Mrs. Wasson. Motion carried 571 with Mrs. Kavanaugh casting one NO vote. Recommendation for Award of Bid for Maintenance of Roads in Bells Flats/Russian Creek Service District. Mr. Denslow stated that the maintenance contract is rebid annually. Three bids were received and opened in the presence of three citizen" representatives from the Bells.Flats/Russian Creek Roads Service District committee. The bids were reviewed and recommendation is that the contract go to Alagnak, Inc. Dr. Emmick moved to award the bid as recommended by the_Service District, Bells Flats. Seconded by Mr. Williams. Aiagnak, Inc. was the low bid on a unit 4asis. A ten-minute recess was called. Meeting reconvened at 9:20 P.M. The bid •documents were read. Mr. Williams moved to table. Motion died for lack of a second. Motion _carried 5-1 with Mr. Williams casting one NO vote. J. School District Report of Revenues & Expenditures June 1978. Dr. Emmick moved to acknowledge receipt. Seconded by Mrs! Kavanaugh. Motion'carried by unanimous roll callyote.* K. Brisbane Plat-Subdivision of Lot 3, Crestview Subdivision, USS 3218. Mr. Jack moved to table untilthe_assembly had some- thing formaT to operate with. Motion died for lack of a second. Mrs. Kavanaugh moved that it be tabled until:the assembly had all of the information. Seconded,bylMr. Motion failed 2-4 with Dr. Emmick, Mr. Peotter, Mrs.:Wasson_and Mr. Williams casting NO votes. Mr. Marmaduke made his presenta- tion. At the meeting of August 16, P g Z recommended approval; this did. not appear in the assembly packets. Mr. Peotter moved to table. Seconded by Mr. Jack. Motion carried by unanimous roll call vote. L. Resolution #78-60-R Subdivision of Lot D, Block 7, Bells Flats AK Subdivision (Lather). P & Z recommended approval of the resolution. Mrs. Kavanaugh moved for adoption of Resolutibn' #78-60-R. Seconded by Mr. Williams._ Motion carried by unanimous roll call vote. X MANAGER'S REPORT 1. Stated administration had been ddvised of the state legisla- ture's approval of appropriations for Ouzinkie high schook, 1.1 million dollars, and Larsen Bay high school, 1.6 million dollars. The manager and superintendent of schools have asked the school board to follow the same procedures as used for the Port Lions and 01A Tlarbor high schools. The --dular plans -7? 31 August 1978 BL - 78 - 003 Borrow Lease, Tract,P -4, 'Be (Royal Large) - is Flats Ak. Subdivision REQUEST The petitioner, Mr. - R.V.'Large, is seeking a Borrow Site lease for Tract P -4. HISTORY 1: Letter of application 4/30/69 Russell A. Wright 2. Plat submitted 5 /5 /69,,approved'by Planning and Zoning 5 /7/69 as aggregate source, resolution 69 -22 -R 3. Memo -of 7/10/72 requesting withdrawal of P -4 as a borrovi site by Planning and Zoning. Commission 4. Approval Royal Large to take over lease by Assembly.10 /5/72; lease signed '10/30/72; renewed 10/30/7,i�3 wi_th_the. exception that a 100. - foot trip by the dyer :be -_ left :intact ` , • 5» Minutes of 5/2/74 states Large wanting removal of 100 foot re- striction from lease; and; -claiming. borrow - site P -7 as part,of_ P -4 6. Letter of 9/29/74 asking for lease renewal SITE See plat. ANALYSIS The site is essentially finished as a Borrow Site, primarily because excavation cannot proceed t� a depth to make the pond more than a slough, due.to site configuration. At tis regular work session of ,.August 24th, the Assembly considered the recommendation of the con- sultant to level the site and rezone -Business. /Residential tracts. Lease expired as of 10/30/77. three k • rT O£ Page 2 RECOMMENDATION The Borough's land consultant, Mr. Dale Tubbs, has recommended that the Borough issue contract for the north and easterly side of Sargent Creek Road to level the site within 3 feet of the mean high water table allowing the stockpile of material in the southerly corner of tract. Require west leg to be groomed by May of 1979. Delete portion of P-4 lying westerly of Sargent Creek Road. Change use of this area to residential. Consistent with this recommendation, you can deny the request for ,Borrow Lease, or approve the-leasefor one year on the condition that Mr. Large use shotrock from the west.portion of P-4 to dress up the creekfront property, and leave P-4 with an access road to P-6 to Borough standards. Kodiak, Alaska August 23, 1978 Kodiak Island Borough P. 0. Box 1246 Kodiak, Alaska 99615 APPLICATION LETTER - BORROW LEASE As an applicant for renewal of my Kodiak Island Borough Borrow Lease and in_:accordance with Kodiak Island Borough Codeg.8.68.020, the following information is submitted: 1. Name and Address of Applicant: Royal V. Large P. O. Box 2634 Kodiak, Alaska 99615 2. Application Fee: Enclosed 3. Preliminary Plat: Already submitted 4. Use of Materials: General gravel sales 5. Term of Lease' Requested:_ Three years As: required under Kodiak Island BoroughCode §18.68-.070, you will also find enclosed the sum of $1,200.00 representing the Minimum lease fee for one year. It is of great importance to ma.that this application be promptly reviewed. Thank you. Sincerely, t • • Royal V. large • KODIAK ISLAND BOROUGH P.O. Box 1246, Kodiak, Ak. 99615 Filing Fee $25.00 - Not .Refundable Casefile No. I. Application For Borough Borouh Land -0 In- rest Therein A. ED Sale EL' CR Lease C. CD Easement E. 0 Timber D. Matera1 (gravel) F. Li Use Permit Name of Applicant (Print) ROYAL LARGE Mailing Address Box 2634 Kodiak, Alaska 996 Land being applied for is in: Township South, Range Section, U.S. Survey No, or Subdivision: Aliquot Parts, lot & block or metes. & bounds: See attached description West, S.M. use additional sheet if necessary • - Proposed use for.land or interest. therein and time schedule for use or development: Gravel extraction . three years • use additional sheet if necessary What:im Borrowsite improvements, provements, if any, are now on the land?- stock Piles, Working Faces, Access Roads, Strippings, Waste Disposal Who owns the irnprovernents? Applicant • ( II. Answer appropriate questions for your type of application. . Sale: Do you have a proposed development plan for the site? :Le B. L Do you have a proposed development plan for the site? • Yes. What term of lease is requested? Three years C. Easement: Attach a map showing route location, R/W widths, lengths and existing adjicent easements. D. Material: 1. Volume of material requested 75,OCID — 80,000 cubic yards 2: Length of sale requested. three years. 3. Attach map as required in Material Sale Ordinance 18.60.020. Already submitted. E. Timber: Volume.of timber requested Not applicable Length of sale requested.' . years. . Use Permit: Attach map showing:area requested. 111. acknowledge this application is merely on expressiam of interestwiti, no right or priority in the lands applied for. /,` Signature of Applicant or, authorized corporate officer. . August 23, 1978 Date ftocoLiwr Nurzi t Land Lease .air: 0,:f. . T ,.._. ; KODIAK & &AND BOROUGH 767 "1i: ' Royal Large Box2634 Bells Flats Ak. Subd. ADDI E43: Kodiak, EK 9.9615 Tract Pro Annual lease Borrow Site $1200.00 per year DATE cURRE:,', i T14X 9-].6 -75 to 9- 16-76 1,200.00 OCT 3°7:? 9/17/76 to 9/17/77 1,200.00 SEP 30`16 9/17/77 to 9/17/78 J.,200.00 PENALTY C, {NT!:r ESST f COURT. COST ,Additional Gravel Sale 2,057.75 t 19/ TAX PMD ? EIALANCE DU • 1,200.00 '1,200.00 - 1,200.00 .000 1,200.00 .00 f 1,200.00 3,25'7,75 '3p257075 600 NAME WRIGHT AxmEss P. 0. Box 664- Kodiak, Alaska 99615 DATE REFERENCE C )I ARG E5 CALANCE FORWARDED Annual lease Borrad Site Ie11s Flats -•• .$1200.00 9 -16 -69 to 9-16 -•70 9.16• -70 to 9- -1671 9-- 16-71 to 9- -16-72 '9- 16-72 to 9-16 --73 . 1200.00 1200.00 3.200.00 $1200.00 9 -16 -74 to 9-16-75 1200.00 CVV- /7 _ 9/1' r `/70 T,f'77 i7 pd 1200.00 1200.00 8, 71, 1200.00 92'23/71 1200.00 1 {) -: -=72 • 1200.0010 -29 -74 LEGAL CSC Royal Large Borrow Pit Lease . A portion of. Tract A', Kodiak Island Bore gh, as follows, lo Flats, Al ska, more Pa ska Subdivision, ticulary descrthed Beginning at Hi.11 'A', Identica.l •with Corner Tract 2, Bells' Flats., Alaska Subdivision; Thence N'79-45-45 ;+19 1500.49 feet; • Thence S7-27-11 E, 362.84 feet. along the: westerly boundary Tract A to the Center Line of Sargent . Creed Road; Thence N 75 -29 -22 E, 150.00 feet' along the road center • line to a Point of Curvature; Thence 244.87 on a ,.curve to the RigIit having a radius of 383.94 feet; Thence S 7 -27 -11 E, 1167. - feet to the center line Middle Bay Drive; Thence N 52.35.06 E, 216.18 .feet along. the road center line to a Point of Curvature; T+ feet curve s �-he ?s Thence 7: 2a fees on a �� • -. �o ,:_.� .L.rght ing, Radius of. 580.00-feet; • • !thence N73-03746 E, 155.54 ,feet alon ; the road center, line to a point. of intersection with the cent; r lino of.Sargent Creed Road; Thence N 57-05-05 W, 352.12 feet along center line of .said road to 'a point of curvature; Thence N 41-44-33 E, 1027..11; feet to the, point beginning. • Containing 19.20 Acres or Les: KODIAK ISLAND BOROUGH IV. PARCEL P -4, TRACT A, ,Bells Flats Alaska Subdivision A. HISTORY: 1. Letter of application 4/30/69 Russell A. Wright, 2. Plat submitted 5/5/69, approved by P &Z 5/7/69 as aggregate source, resolution 69 -22 -R 3. Memo of 7/10/72 requesting withdrawal of P -4 as a borrow site by P &Z commission • 4. Approval Royal Large to take over lease by Assembly 10/5/72; lease signed 10/30/7,2; renewed 10/30/13 with the exception that a 100 foot strip by the river be left intact.. 5. Minutes of 5/2/74 states Large wanting removal of 100 foot restriction from 'lease, and claiming borrow site 1'°.7 as part of P-4 6,. Letter of 9/29/74 asking for lease renewal B. ANALYSIS: 1. No renewal record for 10/30/74. Expiration of 5 -year lease 10/30/77. C. REOD ?V END ION Issue contract for the north and easterly side of Sargent Creek Road to level the site within 3 feet of the mean high water table allowing the stockpile of aaterial in the southerly corner of tract .Rewire west leg to be qrc M d by May of 1979. Delete portion of P--4 lying westerly of Sargent Creek Road. Change use of this area to residential. TELEPHONE 486.5769 ROY H. MADSEN ATTORNEY AT LAW A PROFESSIONAL CORPORATION EIRECHAN BUILDING KODIAK. ALASKA 99615 November 28, 1973 Kodiak Island Borough Assembly P.O. Box 1246 Kodiak, Alaska 99615 Gentlemen: MAILING ADDRESS P O. BOX 728 I am writing to you on behalf of Royal V. Large concerning the renewal of his Borrrow Site Lease for the year ending October 30, 1974. Mr. Large renewed his 1972 lease on a borrow site known as P-4 of Tract "A" of Bells Flats, which encompasses 19.20 acres more or less, this lease had a provision authorizing renewals of one year each for five years but the 1973 lease EXCEPTED a 100 ft. strip along Sargent Creek some 1,500 ft. long or approximately 3.75 acres. In addition , Mr. Large informs me that he cannot excavate within 40 ft. of the road right-of-way, so this deprives him of another 1 1/8 acres. Mr . Large also informs me that on the West side of the roadway there is approx- imately 6.30 acres on which there is no gravel. This just leaves about eight acres of borrow site and this largely in a narrow strip between the road and Sargent Creek. This departure from the original lease has placed Mr. Large in a very restricted situation, making it almost impossible for him to borrow this site He only has a 100 ft. area in which to pile overburden, harvest gravel, maintain slopes and operate equipment. This restriction has caused him to lose one contract and has created a situation where he is at a break even point, with no margin of profit. In view of the fact that this is not a renewal of his original lease but a drastic departure from the same, and in view of the statement by the Kodiak Island Borough Assembly Page Two November 28, 1973 Assistant Area Management Biologists that operating within 30-40 ft, of the stream bed would damage Sargent Creek and the fact that this change is creat- ing a hardship on Mr. Large by reducing his profit margin to zero, it is respectfully requested that, the restriction be reduced to 50 ft. of the stream bed. Mr . Large feels that this would give him the additional operating room he needs and would make the borrow site fil}ancian* feasible for him to operate. • Enclosure (1) y truly ROY H MADSEN . Attorney at Law CC: Mr. Robert Mahoney, Attorney at Law Cole, Hartig, Rhodes, & Norman 717 K Street, Suite 201 Anchorage, Alaska 99501 RHM: jf WILLIAM A. EGAN ; GOVERNOR :,PEPAETNIENT'OF FIISg &. GAME DIVIS:.LON OF'COMMERCIAL. FISHERIES November` 16 .1973 P. 0. BOX 686 — KODIAK 99615 On November at approximately 2:00 'p. .,. 1 drove out to ells Flats to look a gravel removal site near Sargent's Creek. he ` land is owned by Mr.:.Royal: Large and he is selling the gravel 0 Mr:., Brechan for. the purpose: : :of: making gabions for the Pillar ountain slide area. The 'land yarrow &ite and : the plan : a.a to enlarge . this site by about 200 feet parallel to the stream bed. Mr. Large assured me that 1.. No heavy equipment would-be . in the stream or on the banks of the stream. (P -4 , .Tract :A) on Sargent' s Creek already has a shallow The gravel .removal . area would not be any closer to the stream than the existing site? which we estimated to be between :30 -40 feet from the stream. The grass,,. small' ,cotton_wood,trees, and alders would be left standing on- the_ 30 -;4q foot - buffer . zone between the stream and the''excavation. There ^ should, be no_damag_e s : Creek ..:if:;the above conditions are observed and the Alaska, Departmenttof•Tish and Game, therefore,, has no 'objection .tcy .the': proposed: ,barrow site. Ken R. Manthey Asst. Area Mgmt Biologis cc: Royal`' Large ; Frank; ,Van Hulle z;. 5 '.4,. \ Kessizoutn . -.... c.) ..?.... !or 4 k •' /--) / i k TRACT P \ Aer P4 WC/NT /1'14P /: / Mt 4,.,/ ea,y4 BORPC)/.11 P/7-. Tee.) 4 eass 54-czys: A r,e,47- asas 75 -41,41-1^,7 VAS ra—iscfri"e .041 ti8k: Avs• 8, IX"..8 I •Culeo4 "033, OW..