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KODIAK TWNST BK 8 LT 6A,B,C - ZCP• ZOT7NG COMPLIAN _ E PERMIT(Page I of 3) 1C12 Pep (Auk eett 07/;3/0,1 Permit# Z2i Vo Kodiak Island Borough, Community Development Departm 710 Mill Bay Itoadl (Rm. 205), Kodiak, AK 99615 PH(907)486-9362 Fax(907)486-9396 h ib.co.kodiak.ak.us Required Applicant Information: cAc0-6-7 1. Property Owner/Applicant: Qb,- p Mailing Address: k ,r 2. Legal Description: Lccg Phone: . Street Address: \ Description of proposed action: 11 C‘•(z-, 1/40Ar S-e-e4A, 40s2, ; 4. Site Plan (page 3 of 3 of this application): to include: Lot boundaries & e.)cistihg easements, proposed location of all buildings, access points &vehicular parking areas. STAFF WILL PROVIDE YOU WITH A COPY OF THE APPLICABLE CODE SECTIONS THAT APPLIES TO YOUR DEVELOPMENT ACTIVITY Zoning District 'NI Parking Requirements 0 Solid Waste Removal Requirements • Parcel NO. R / 3 ttes,r_o,,,, i „ STAFF COMPLIANCE REVIEW Current Zoning: 2 3 I/1/k F 2___ Required Lot Area: / `7‘90 Sc -1 Required Setbacks: Front: 2_,S -f Side: S-1 Rear ( 0. r Building Height: rsi. (Setbacks other than zoning district standards to be noted on the atthched site plan) 5. Number & size of parking spaces required: il. 9 k/ 6.-Off-zstreet loadin: - .• .. - - . /Art v v'2 -€;v ci,A47,ago Plat/subdivision related requirements (e.g. plat notes, easements, subdiviblon conditions, drainage plan review, [ etc.) Other Requirements (e.g. zero lot line, additional setbacks, prr ions into yards, screening, etc. .11 ACMP Policies: Res. Bus. D Ind. 0 Other 0 Consistent with KIB CMP: Yes Zoning Compliance Permit Fee Payable in Cashier's Office Room # 104 Fee Schedule: (per KIB Assembly Resolution Eff. July t, 2005) ss than 1.75 acres 530.00 .7, o5.II a r 5.01 to 40.00 acres 40.01 acres or more $90.00 SI20.00 Construction Disposal Deposit Payable in Cashier's Office Room # 104 Fee Schedule: (per KIB Assembly Resolution •Eff..LiityJ,105 Less than 250 sq. ft. S250.00 251 to 500 sq. . 501 or greater sq. ft. $1000.00 ' 1.11 No0 Attachment: YesQ N FEB I c.e.p FSLAP r -J1 - GO) (Page 2 of 3) THIS FORM DOES NOT AUTHORIZE CONSTRUCTION WHEN A BUILDING PERMIT IS REQUIRED **EXPIRATION: A zoning compliance permit will become null and void if the building or use authorized by such permit is not commenced within 180 days from the date of issuance, or if the building construction or use is abandoned at any time, after the work is commenced, for a period of 180 days. Before such work -d -an be recommenced, a new permit must first be obtained. (Sec. 106.4.4 Expiration, 1997 UBC)per KIBC 17.03.060. : ‘,J Subd. Case #: /V Plat #: Bldg Permit #: 2. Driveway Permit (State, Borough, City) by/date: N 3. Applicant Certification: I hereby certify that I will comply with the provisions of the Kodiak Island Borough Code and that I have the authority to certify this as thepropertyowner, or as a representative of the property owner. I agree to have identifiable comer markers in place in the field for verification of setbacks. By: iciry.,,,rt) brbirACISN Date: 4114101 o& TAA_. assoc. \s)a /S'/3- 2000 Epc. Supporting documents attached (check one): Site Plan. As -Built Survey: D Other (List): 4. Communlev s t Department By: Title: Date: 5. Fire Marshal (UFC) by/date: Al 4 6. Septic System Plan Approved by/date: w This permit is ONLY for the proposed project as described by the applicant. If there are any changes to the proposed project, including its intended use, prior to or during its siting, construction, or operation, contact this office immediately to determine if further review and approval of the revised project is necessary. Kodiak Island, Alaska TIC „ 3399 Last Name/Company Name: Taxpayer Information 2/14/07 13:05:32 1 Ta,xpaye,r,\--1 RI"PIDPrty, 1 Tnq First Name(s): 'dAt'arELLE" Mailing Address: R'Ob'SX0V 'ST City: KODIAK 04), cP:LITIX,rY.:. 99615 Carrier Route: 1 AAAAAAAAAAAA Format: R 10:34668'6661— 11111111111 4 44444 101111 ' Short p'pak KODIAK TWNST BK 8 LT 6A,B,C 1 1 1 1 1 1 1 1 1 1 1 itn—nease enter TIC number and data selection and press desired function F1=Add F2=Change F3=Exit F4=Prompt F7/F8=Sc*oll F24=More Keys Dear Gabrielle, Last Tuesday I finally managed to get the repairmen and the weather' to the point I could have the fence between our properties repaired. I tried to call you'' for your permission to work along the property line but they said you would be out of town for the remainder of the month, so we proceeded. The damage to the fence was extensive in addition to the area where the removal of an oil tank caused a section to lean into your yard. Most of it was the undermining of a substantial part of the fence by a front end loader that exposed the ;underground part of the posts on your side of the fence. last year it happened on the Lack one third of the fence causing the two panels to break loose last winter. This 'summer the same thing was done in the area area parallel to your building and when the fence started to lean your way they stacked things against it to hold it up and it4s bard to say what damage it might have caused your bnikting had it failed in a windstorm next winter We had to dissemble the entire entire fence between our properties and .replace most of the posts with longer ones because the ground level had been lowered, We reused about 9096 of the boards except those cracked or broken, the last one was punched through within the last couple of months. I feel that not all of the damage was accidental or at best it was done without concern for the property of a neighbor. The fence now, as it' was before; is between three and four inches on my side of the surveyed boundary between our yards andpeople working back there have no business changing the ground level loser to the fence than that, or leaning or placing anything against it. Thetimber frames in the backyard should be moved to inside your yard if they are not that now, ;hopefully without causing more damage. You and Kurt were such good neighbors and you still are and we are happy that you are there. I hope that you will caution people working in the back or side yard that it would be greatly appreciated if they would try not to cause further ci1ge it was expensive. Thank you very much. 1 6 1995 Wilton WI bite 486-5410.... ao..6---,t4,-_-s‘is A ltd C'Op y m eke /Vo Z -e 1 SC -A):71- /.k) r2 ie //e LeDeitx oec-7,1-edii)c/ -/ -re/ti ce p.72eblen1. The✓e6 C'b tD GL 14Hle H /e*e iij (l8dd°a b u t j 4/ii /09 r2s/c,N 9 h eo 4.s/<2 h ' tiS �' z�e (/ Gt)me4„,y -6 4 Ge 4 IN THE SUPERIOR COURT FOR THE STATE OF ALASKA THIRD JUDICIAL DISTRICT AT ANCHORAGE KURT M. LEDOUX and ) GABRIELLE LEDOUX ) ) Appellants, ) ) vs. ) ) CITY OF KODIAK, ) ) Appellee. ) ) Case No. 3AN-90-5625 CI APPEAL FROM THE KODIAK CITY 'COUNCIL SITTING AS A BOARD OF ADJUSTMENT BRIEF OF APPELLEE Melvin M. Stephens, II A Professional Corporation P. 0. Box 1129 Kodiak, Alaska 99615 Counsel for Appellee 3-)7`e )21 MELVIN M. STEP NS, II' Filed in the Superior Court for the State of Alaska at Anchorage this day of March, 1991. Deputy Clerk 1ELVIN M.STEPHENS.11 ;p4ortmo,i4LcolarokuTio. ATTORNEY AT LAW 34 C457111 Art., SUIT/ 105 P. 0.005 1125 :ODIAK. ALASKA 996I5 (907) 486-3143 TABLE OF CONTENTS TABLE OF CONTENTS Page(s). i TABLE OF CASES, STATUTES, RULES AND OTHER AUTHORITIES . CODE PROVISIONS PRINCIPALLY RELIED UPON . . . . . . . . . . ISSUES PRESENTED FOR REVIEW 1 STATEMENT OF THE CASE 2 I. FACTUAL BACKGROUND 2 II. COURSE OF PROCEEDINGS 4 STANDARD OF REVIEW 8 ARGUMENT 9 I. THE PLANNING AND ZONING COMMISSION'S DECISION WAS A PROPER EXERCISE OF DISCRETION 9 II. THE DOWNTOWN PARKING LOT IS IRRELEVANT TO THIS APPEAL 13 III. THE FINDINGS OF THE BOARD OF ADJUSTMENT ARE SUPPORTED BY SUBSTANTIAL EVIDENCE IN THE RECORD . . 15 IV. THE LEDOUXS ARE NOT BEING REQUIRED TO BUILD AN UNSAFE PARKING LOT 17 CONCLUSION MELVIN M.STEPHENS.11 A PROfESSIONALCORPORA7ION ATTORNEY AT LAW 104 CENTER AYE.. SUITE 206 P.O. BOK 1124 KODIAK. ALASKA 99615 (907) 486-3143 ® . . . . . . . . . . . . . . . 18 • TABLE OF CASES. STATUTES. RULES AND OTHER AUTHORITIES Page(s1 CASES: 1 Earth Resources Co. v. State, Dept. of Revenue, 665 P.2d 960 (Alaska 1983) 8 Galt v. Stanton, 591 P.2d 960, 963 (Alaskai1979) 8 Hamilton v. Lotto, 397 P.2d 980 (Alaska 1945) 16 Kelly Supply Company, Inc. 1211 at n. 5 (Alaska 1973) Nordic Construction Co. v. 441 P.2d 122 (Alaska 1968 v. .City of . Arftpeage, .. • Whitney Bros. Plumbing Storrs v. State Medical Board, 664 P.2d 547, denied 464 U.S. 937 (1983) 516 P.2d 1206, . • . . 16 & Heating, Inc., 12 554 (Alaska), cert. 14 Veal v. Newlin, Inc., 367 P.2d 155 (Alaska'1961) STATUTES AND CODE PROVISIONS: KIBC 17.36.030 KIBC 17.57.010 KIBC 17.57.020 KIBC 17.57.020 A 2 a KIBC 17.57.030 RULES: Appellate Rule 508(e) Appellate Rule 510 MELVIN M.STEPHENS.II A PROUSSIORAL CORPORATION ATTORNEY AT LAW 1 0 4 CENTER AVA, SURE 20 6 P. O. BOX 1121 KODIAK. ALASKA 99615 (907) 486-3143 12 2 3 15 2 8, 9, 15 11 18 18 MELVIN M.STEPHENS. it A PROFESSIONAL 001IPORATION ATTORNEY AT LAW 04 CIATell MI.. SUITE 205 P. O. BOX 1129 KODIAK. ALASKA 99615 (901) 486-3143 CODE PROVISIONS PRINCIPALLY RELIED UPON KODIAK ISLAND BOROUGH CODE 17.57.010. Off -Street parking required -- In general. In all use districts, from the time a principal building is erected, constructed, established, altered or enlarged, there shall be off-street parking conforming to this chapter to- serve that building. This parking shall be available free of charge for the use of the occupants of the building and their employees and patrons. The owners and occupants of a principal building shall be jointly and severally responsible for providing and maintaining the off-street parking serving that building. The off-street parking required by this chapter for a principal building shall be maintained in accordance with this chapter continuously during the life of the building. 17.57.020. Off-street parking -- Number of spaces required. A. For each principal building or use within a principal building, there shall be no less than the number of off-street parking spaces specified under this section. * * * 2. Buildings other than dwellings: a. Bank, office building, professional office, or clinic: one parking space for each three hundred square feet of gross floor area, but not less than three spaces; 17.57.030. Off-street parking -- Location. All parking spaces required under Section 17.57.020 shall be on the same lot as, or a lot adjacent to, the principal building that they service; provided, that if the planning commission finds that it is impractical to locate the spaces on such a lot, it may permit them to be located on any lot within six hundred feet of the principal building. All parking spaces required under Section 17.57.020 shall be located in a use district permitting the use which they serve. iii MELVIN M.STEPHENS.11 A PROFESSIONAL CoRrofiATION ATTORNEY AT LAW 104 Omits AVI.. MU 206 P. O. BOX 1129 KOOIAK. ALASKA 99615 (901) 486-3143 ISSUES PRESENTED FOR REVIEW 1. Where the applicable municipal code requires that any off-street parking required with respect to a particular building be maintained for the life of that building is it an abuse of discretion for the planning and zoning commission to disapprove a parking plan consisting of no more than a# unsigned lease under which the required parking spaces would be located out of sight of the building, which lease could be cancelled months notice? on no more than six 2. Must a planning and zoning commission accept a property owner's claim that he has the 'permanent use of his neighbor's parking lot when the property lowner admits that the neighbor has refused to grant him that right in writing. 3. Does a map prepared by borough staff in preparation for a planning and zoning commission hearing, upon which there has been drawn a circle showing all propertywithin 600 feet of a particular building, constitute substantial;ev4ence that a public parking lot falling outside that circle is not within 600 feet of the building? 4. May the provisions of a municipal code which mandate that a certain number of off-street parkingspaces be provided in connection with the conversion of a residence to an office building be disregarded simply because there is a publicparking lot in the general vicinity of that building? MELVIN M.STEPNEN5J1 A PROMSIONALCORPORATION ATTORNEY Al LAW IQ4CZ.TUAV.. SIM 2 0 6 P. O. BOX 1124 KODIAK. ALASKA 99615 1 (907) 486-3143 STATEMENT OF THE CASE I. FACTUAL BACKGROUND. In 1987 Mr. and Mrs. Ledoux purchased a single-family residence at 219 Upper Mill Bay Road in Kodiak, Alaska with the intention of converting the ground floor into a law office and the second floor into an apartment. This change in use required a variance from section 17.36.030 of the Kodiak Island Borough Code because the lot in question was substandard in area and width. (R.7). That variance was granted and is not at issue in this appeal. In order to convert the building to office use, the Ledouxs were required to demonstrate that they could provide one off-street parking space for each 300 square feet of gross floor area.'/ A total of eight off-street parking spaces were thus required by the Ledouxs' intended use of the building.-/ They sought no variance from this requirement. Instead, Mr. Ledoux presented the Kodiak Island Borough Planning Commission with a site plan showing that all of the required parking spaces would be provided by constructing a parking lot in the backyard and assured the Commission that there would be no problem in meeting the parking requirements. (R. 47, 78). Only after the variance permitting conversion of the building to office use was granted did Mr. Ledoux consult a 1/ KIBC 17.57.020 A.2.a. 2/ This was later reduced to seven spaces when the second floor apartment was converted to storage space. 2 MELYIN M.STEPHENS.11 APIOKSSIONAL CO I►OIATIO■ ATTORNEY AT UW 104 CENTER AVI., SO:T[ 204 P. O. BOX 11211 KODIAK. ALASKA 99615 (907) 486-3143. contractor about actually constructing the parking lot which he had assured the Planning and Zoning Commission would be built. At that time he was told that it would be "rather difficult" to build the parking lot, the total cost of which was estimated to be between $3,000 and $4,000.'(R. 78). The Ledouxs' response to this unpleasant news was to ignore the off-street parking requirements' of the Kodiak Island Borough Code. They simply proceeded to convert the residence at 219 Upper Mill Bay Road to office space, and moved their law practice into it without ever implementing,jth!e parking plan they had .presented to the Commission. This state of affairs was discovered by the Borough in i u January of 1988, at which time Robert P�edrson, an Associate Planner with the Borough CommunityDevelopmeht pepartment, notified the Ledouxs that their use and occupancy of the building was in violation of a number of provisions of the Borough Code, including ,the off-street parking requirements of KIBC 17.57.010. (R. 5-6). In February of 1988 Mr. Ledouxjap'plied for a zoning compliance permit, during the course of I;which he assured the Borough zoning enforcement authorities that the parking lot and bumper guards reflected on the previously lisubmitted parking plan would be constructed by October 18, 1988. (R.7). Once again, however, the Ledouxs' made no effort to construct the parking facilities. Accordingly, on October 27, 1988 i Bob Scholze, an Associate Planner whose duties included zoning enforcement for the Borough, formally ordered the Ledouxs to.begin P M ELVIN M.STEPHENS.11 amtorcmosumKoRroluvriom ATTORNEY AT LAW ' 04 CEPITER ATI., SUITT 206 P. O. BOX 1129 CODIAK. ALASKA 99515 (907) 485-3143 construction of the parking lot indicated in the parking plan which they had filed. Construction was to begin within thirty days and be completed within ninety days of the Ledouxs' receipt of that order. (R.7). The Ledouxs ignored the October 27, 1988 enforcement order, as a consequence of which the Borough filed a civil complaint dated February 28, 1989 seeking an injunction requiring them to discontinue use of the property at 219 Upper Mill Bay Road as a professional office building until such time as the required parking facilities were constructed. (R.1-4). In the course of answering that complaint the Ledouxs admitted that they had submitted the above-described parking plan in support of the October 1987 request for a variance authorizing a change in use of the property. (R. 8A, 54, admitting R. 2, 54). II. COURSE OF PROCEEDINGS. On November 10, 1989, almost two years after the Ledouxs had actually converted the premises at 219 Upper Mill Bay Road to office use, they raised the possibility of complying with the off- street parking requirements of the Borough Code by locating five of the required spaces on other premises. On that date Kurt Ledoux submitted a letter requesting that the Planning and Zoning Commission find it to be impractical to locate all of the required off-street parking at 219 Upper Mill Bay Road and that it authorize 3 seven of the required spaces to be located off -premises on property owned by Dr. Bob Johnson. (R.50-51). A handwritten post 1/ Later changed to five. MELVIN M.STEPHENS.II A PROMSSIOPIALCORPORATIOR ATTORNEY AT LAW 04 AVE Surrz 206 P.080X 11129 KODIAK. ALASKA 99615 (907) 486-3143 script to that letter reads: "Please also consider the same findings for the Community Baptist Church." The Planning and Zoning Commission held a hearing on Mr. Ledoux's request on December 20, 1989. It found that it was impractical to locate five of the seven required off-street parking spaces on the lot at 219 Upper Mill Bay Road, however, it denied , permission to locate these spaces on Dr. 'Johnson's property, finding that the proposed parking was not within line of sight of the Ledouxs' office and that it would not be viable even with adequate identification of the spaces involved. (R.69). The Commission also relied upon Mr. Ledoux's!admission that he was unable to obtain an easement guaranteeing the, future availability of the parking spaces in question. (R.77). Indeed, Mr. Ledoux presented the Commission with no evidence 'whatsoever that he had any right to locate parking on Dr. Johnson's, property, offering only a copy of an unsigned lease, terminable upon six -months ! notice, and his own assurances that Dr. Johnson was willing to sign such a document. (R.54, 88). While Mr. Ledoux had assured the Planning and Zoning Commission that he would go ahead and buildlthe parking lot if the Commission so decided (R.78), his response to the December 20, 1989 decision was otherwise. He filed an appealto the Kodiak City Council and, after waiting almost a full month, requested that it be stayed so that the Commission enter adAtional-findings as to why it had denied his request to use the CdmmUnity Baptist Church parking lot or a public City of Kodiak parking lot to meet his MELVIN M.STEPHENS.II A PROFUSIONALCORPORATION ATTORNEY AT LAW I 0 4 CEItTUI ATI.. SUITE 20 6 P.O.BOX 1121 KOOIAK. ALASKA 99615 (907) 486-3143 parking needs. (R.109). On February 22, 1990 the Commission patiently entered those additional findings, pointing out that the Ledouxs had presented the Commission with no documentation whatsoever showing that the Baptist Church was willing to allow its parking lot to be used as a permanent solution to their parking needs and that they had never formally requested that the city parking lot be considered as an alternative solution to these needs. (R.110). The Ledouxs' appeal to the Board of Adjustment was heard and denied on June 5, 1990, with the Council entering detailed findings of fact in which it upheld the Commission's judgment that neither a short-term lease nor an unwritten "gentlemen's agreement" would promote the goal of assuring adequate off-street parking for the Ledouxs' needs. The Council found the record to contain substantial evidence supporting all of the Commissions findings except the finding that it was impractical for the Ledouxs to build the parking lot they had originally proposed. With respect to that finding, the Council held that the difficulties cited in the record and the modest cost of overcoming them did not make construction of the parking lot impractical. (R.12, 17). The Council also found as a matter of fact that no substantial part of the downtown public parking lot was within 600 feet of the Ledouxs' property. It felt the most credible evidence on _this issue was the map appearing at page 39 of the record. (R.12, 16). On July 5, 1990 the Ledouxs appealed the Council's decision to this court, erroneously listing the Kodiak Island Borough and the "Kodiak Planning and Zoning Commission" as the appellee. MELVIN M.STEPHENS.11 4Puonmoput.CoRpowinom ATTORNEY AT LAW 0 4 Willa Avg ., Su= 20 6 P. O. BOX 1126 KODIAK. ALASKA 99615 (907) 486-3143 MELVIN M.S7EPHENS.II A INOFIESSIOPIALCOAPOAATIOM ATTORNEY AT LAW 101 Winn 401.. SUIT1 209 P.O.eax 1129 KODIAK. ALASKA 99615 (907) 486-3143 STANDARD OF REVIEW As an initial matter, the court should note that the borough code provision here at issue, KIBC 17.57.030, _is discretionary, not mandatory. It begins by establishing the standard that "[a]ll parking spaces required under (KIBC) 17.57.020 shall be on the same lot as, or a lot adjacent to, the principal building that they service . .." It then provides for an exception: "If the planning commission finds that it is impractical to locate the spaces on such a lot, it may permit them to be located on any lot within six hundred feet of the principal building." (Emphasis added). The factual findings related to this case must be upheld if the record contains substantial evidence to support them. In reviewing the Commission's exercise of its discretion to deny the Ledouxs' off -premises parking "plan", however, a rational basis test is applied.1/ 4i See Galt v. Stanton, 591 P.2d 960, 963 (Alaska 1979) (where an administrative agency is exercising discretion which has been delegated to it, the appellate court's task is to determine whether there is a rational basis for the exercise of that discretion). The rational basis test may be applied in two circumstances, one of which is "when a case requires resolution of policy questions which lie within the agency's area of expertise and are inseparable from the facts underlying the agency's discretion." Earth Resources Co. v. State. Det. of Revenue, 665 P.2d 960 (Alaska 1983). ' This describes exactly what a planning commission does in attempting to determine whether or not a proposal to locate off-street parking on a lot other than that which contains the building generating the need for it should be approved under K.I.B.C. 17.57.030. MELVIN M.STEFFIENS.11 A PROFESSIONALCORPORATIOn ATTORNEY AT LAW 1 0 4 CENT!' AVE.. SUITE 20 I P. 0 aox 1129 KODIAK. ALASKA 99615 (907) 486-3143 ARGUMENT I. THE PLANNING AND ZONING COMMISSION'S! DECISION WAS A PROPER EXERCISE OF DISCRETION. The Planning and Zoning Commission and the Board. of Adjustment disagreed as to whether or: not the difficulties associated with building a parking lot in the backyard of 219 Upper Mill Bay Road rendered it impractical to do so. Even if we accept the Commission's view that it was, however, we advance no further than the question of whether there was a;rational basis for the Commission's exercise of the discretion accorded it under KIBC r 17.57.030 to determine whether an alternate location of the required parking spaces would be appropriae. I The usual procedure, of course, 'islfor a party seeking the benefit of the off -premises exception of KIBC 17.57.030 to actually purchase other real property within 600 feet of the building for which parking is required. ,T* party is thus in I complete control of his or her parking needs and can assure the Borough that the off -premises parking will 1.ways be available. For all practical purposes, the Borough Code requires as much, i 1 stating explicitly that "(t)he off street parking required by (chapter 17.57) for a principal building shall be maintained in : 1 accordance with (chapter 17.57) continuously during the life of the building."' Similar assurances could, of course, be provided by the 1 acquisition of a permanent easement permitting the parking to be 1/ 17.57.010. M ELVIN M. STEPH ENS. i I 4tmomwmuCopironoinor ATTORNEY AT LAW 04 C4a7ER Sung 20 P. O. BOX 1128 KODIAK, ALASKA 99615 (907) 486.3143 located on property owned by another. Such a condition was suggested by the Community Development Department staff but Mr. Ledoux admitted that he was unable to secure such an easement.-' Conceivably, a long-term lease guaranteeing parking rights for a period roughly equal to the life of the building which they are intended to serve might offer another alternative. Here again, however, the Ledouxs came up short. They claimed that Dr. Johnson was willing to grant them a lease of certain parking spaces in a lot approximately a block away and out of the line of sight of their building, but the lease in question would have been terminable upon six months' notice. The Commission found this arrangement, if in fact there was ever any substance to it,2/ to be inadequate. There was nothing irrational, arbitrary or capricious about that decision. It simply recognized the reality which to this day the Ledouxs refuse to acknowledge: they do not, and did not, in fact have access to long-term off -premises parking. Indeed, the Commission's judgment on this issue was proven correct when, even before the June 6, 1990 Board of Adjustment hearing, Dr. Johnson sold the 1/ At R. 77, for example, Mr. Ledoux admits, "I could not possibly get easements from these people," and at R. 86, in response to the question, "What about the church. You said in one statement that they would provide you permanent use of that however they would not give you a permanent easement," Mr. Ledoux replies, "That's right. They do not want their land tied up and I would have to agree with that . . .". 21 It was never confirmed in writing. A copy of the lease which the Ledouxs claim Dr. Johnson was willing to sign is found at R. 54. 10 (-Th property upon which the parking spaces in lquestion were to be located.lf The Community Baptist Church was not even willing to sign a short-term lease for the use of their parking lot, nor did anyone associated with the church ever testify or so much as submit a brief letter in support of the Ledouxs' position. As a result, the Commission was faced with "(t)he absence of ,a,ny written document that would allow [the Ledouxs) to use parking space elsewhere."-/ Under the circumstances, one must either ignore or blatantly mischaracterize the record in order to suggest that the Commission was in any way unreasonable or capricious in rendering the decision that it did. The Ledouxs claim that "[i]t was the,duty of the Planning , I and Zoning Commission to allow a reasonable alternative to an unsafe condition" and that "[i]t failed: to do this."- Not MELVIN M.STEPHENS.II A PROMMOPALCORPORATION ATTORNEY AT LAW 104 CLAM AYE.. 5Clat 2 06 P. O. NOX 1121 KODIAK. ALASKA 99615 (907) 486-31413 surprisingly, they fail to cite any, legal authority for this proposition, which once again stands the factual record on its head. It was, of course, the Ledouxs, nd not the Commission, who converted the building at 219 Upper Mill Bay Road from a 1 single-family residence to an office buildihg.It was this change in use that required the provision of ladditional off-street parking. It was the Ledouxs who proposed to meet these 1/ R. 25. 2]R. 87, remarks of Commissioner Coleman. igi Brief of Appellants at 10-11. 11 MELVIN M.STEPHENS.II 4Priorxmoimco4rocualops ATTORNEY AT LAW 104 Cxxrei 4vX., Sun% 206 P. O. 60X 1121 KODIAK. ALASKA 99615 (907) 486-3143 requirements by constructing a parking lot in the backyard.11/ When, after much foot -dragging, they were finally ordered to follow through with their plans, they conveniently decided that those plans were impractical. In the meantime the Ledouxs have occupied the premises in question for well over three years, blatantly flaunting the off-street parking requirements of the Borough Code all the while. Just how this scenario gives rise to a "duty" on the part of the Planning and Zoning Commission to approve an off - premises parking "plan" which depends upon the day-to-day desires of the parties whose property the Ledouxs propose to use is a mystery upon which Appellants' Brief sheds no light.W In their Statement of Points on Appeal the Ledouxs raised the question of whether the Borough's alleged "misadvice" to the Appellants "on location of their parking lot" constituted a waiver of "the variance requirements." This point has been waived because of the Ledouxs failure to argue it in their opening brief. Nordic Construction Co. v. Whitney Bros. Plumbing & Heating, Inc., 441 P.2d 122, 123 (Alaska 1968); Veal v. Newlin, Inc., 367 P.2d 155, 156 (Alaska 1961). Lest the court see the matter differently, however, it should be noted that this issue appears to center upon Mr. Ledoux's imperfect recollection that someone associated with the Borough looked at the rear yard of 219 Upper Mill Bay Road with him following his submission of the sketch showing that he was going to build a parking lot there. Mr. Ledoux is never able to decide who this person was, however, identifying him differently each time the subject comes up (R. 78, "Bob Shuttlesworth"; R. 18, "Bob Scholze"; R. 21, "Bob Peterson") and, in any event, he claims no more than that this mystery man agreed with Mr. Ledoux's judgment that a parking lot meeting zoning code requirements could be built in that location. Such facts are not the stuff of which governmental waivers of zoning laws are made. 12/ The lack of substance in the parking plans which the Ledouxs presented to the Planning and Zoning Commission is highlighted by footnote 4 to their brief in which, after admitting that Dr. Johnson no longer owns the property upon which the Ledouxs at one time proposed to locate their off-street parking, they speculate that "there is nothing to prevent the new owner of the property from leasing the spaces to the Ledouxs." One wonders 12 • MELVIN M.STEPHENS.Il Antomvorm.compoommv ATTORNEY AT LAW t 04 OftiTtlt AYI.. SUITE 2001 P. O. 80X 1121 KODIAK, ALASKA 99615 (907) 486-3143 n II. THE DOWNTOWN PARKING LOT IS IRRELEVANT TO THIS APPEAL. At the Planning and Zoning Commisioh hearing of December 20, 1989, Mr. Ledoux appears to have made two references to the downtown public parking lot as a source of "alternative" parking space' during the course of which he claied)that a small portion i of that lot is within 600 feet of his property. The vicinity map ' which was before the Commission suggests otherwise. -- 14/ The Planning and Zoning Commission noted that the Ledouxs had not raised the downtown parking lot as an "alternative" parking site prior to the December 20 hearing and thug' refused to consider this argument.1.1/ The Board of Adjustment Upheld this decision but 1 d also found as a matter of fact that the parking lot in question was more than 600 feet from the Ledouxs' office, relying upon a vicinity map found at page 39 of the record in doing so. I . This ends the argument concerning this parking lot. The Board of Adjustment made a factual finding that no substantial part of the lot is within 600 feet of the Ledouxs' property and that finding is supported by substantial evidence n the record. It is I not the province of an appellate court to reweigh the evidence which was before an administrative agencyior board or to choose whether to laugh or cry at this ridiculously irrelevant statement, which in no way addresses the merits of the ;Planning and Zoning Commission decision from which the Ledouxs'hai,/e appealed. IVI R. 77, 85. 1 14_ / R. 39, i . 82. The downtown parking lot mediately across Center Street from the 600' circle shown on the immap found at R. 39. R. 110. 13 MELVIN M. STEPHENS. II APioumonaLcompoominom ATTORNEY AT LAW 104 Cocitt AVE.. 51104 10 II 11: O. 00X 11211 KODIAK. ALASKA 99615 (907) 486.3143 between competing inferences which might be drawn from it. It only determines whether the record contains substantial evidence supporting the decision appealed from)-' In this case, the record contains perfectly credible evidence suggesting that the city parking lot is more than 600 feet from the Ledouxs' building. Accordingly, the court should defer to this finding. The lack of logic in the Ledouxs' position concerning the downtown parking lot is nevertheless apparent. They do not argue that they are responsible for having provided any of the spaces in the downtown lot, nor do they suggest that they have any right to mark any of those spaces as "reserved" for their clients. Instead, they merely observe that, since the lot in question is open to the use of the public, their clients may use it. As a consequence of this thoroughly unremarkable fact, the Ledouxs then assert that the off-street parking requirements of the Borough Code should somehow magically disappear, the space the Ledouxs otherwise would have been required to provide having been deemed "located" within the public parking lot. This argument falls of its own weight and scarcely merits a serious reply. The Ledouxs created a need for additional off- street parking when they converted the residence at 219 Upper Mill Bay Road to an office. They were free to seek a variance or exception from these requirements. They elected not to do so, however, and instead assured the Borough authorities that they 6/ Storrs v. State Medical Board, 664 P.2d 547, 554 (Alaska), cert. denied 464 U.S. 937 (1983). 14 ; ; would provide the additional off-street parking on the same lot as the building they were converting. They then switched their tune and, sought permission to provide these spaces by entering into an ' arrangement with a third party which supposedly would assure the reservation of other private property for the necessary spaces. , Either way, the goals of the Borough Code; would be met, for the increased need for off-street parking would be addressed either by the creation of new spaces or by the reservation of existing excess spaces on private property which otherwise could be withdrawn to other uses. Simply pointing to the existence of an already crowded public parking lot -1/ in the general vicinity of a project which creates additional off-street parking needs -whether or not that MELVIN M.STEPHENS.11 A PACIFASSIOFIALCORPORAtION ! ATTORNEY AT LAW 101 CENTER AVE.. SUITE 2011 I P. O. 00X 1121 • KODIAK. ALASKA 99615 : (907) 486-3143 1 lot is within 600 feet of the project —doe S it similarly address those needs, however. In essence, the Ledouxs' musings concerning f I the downtown parking lot boil down to the completely unsupported, and insupportable, assertion that they shbuidn't have to comply with KIBC 17.57.020 at all, not to a legitimate argument that they have done so by providing parking at ani off -premises location pursuant to KIBC 17.57.030. III. THE FINDINGS OF THE BOARD OF ADJUSTMENT ARE SUPPORTED BY SUBSTANTIAL EVIDENCE IN THE RECORD. The Ledouxs claim once again without supporting authority, that the City of Kodiak must bear the burden of showing 11/ At R. 85 Commissioner Barrett characterized the downtown i; parking lot as "quite crowded" and "congested" and noted that he had received a number of complaints about I'the lack of parking in the downtown area. 15 MELVIN M.STEPHENS.,II 4 PmorusioRALCoPPaitAnon ATTORNEY AT LAW 104 UNTIE AVE.. SUITE ZQI P.0.302 11211 (ODIAK. ALASKA 99615 (907) 486-3143 r - that there is substantial evidence in the record to support the Planning and Zoning Commission's decision. This is not the law. A party contending that evidence is insufficient to support a finding of a trial judge must convince the court on appeal that the finding in question was clearly erroneous,111 and the burden of proof does not shift to the appellee simply because the appeal is being taken from an administrative decision and the court is focusing upon whether the record contains substantial evidence to support it. This case is conceptually similar to those involving applications for variances or changes in use, and in such cases the burden of proof clearly rests upon the appellant.W Not only does Appellants' Brief fail to offer a reasoned and accurate analysis of the record, it fails even to mention the detailed findings entered by the Board of Adjustment. Since those findings, which are found at pages 11-14 of the record, have not been attacked with specificity, a detailed citation of the record in their defense seems inappropriate. Suffice it to say that the focus of this appeal should be upon whether or not the Ledouxs demonstrated the intention and ability to comply with the off- street parking requirements of the Borough Code at the Planning and Zoning Commission hearing of December 20, 1989. Virtually every page of the record shows that they did not. 11/ See Hamilton v. Lotto, 397 P.2d 980 (Alaska 1965). 12/ Kelly Supply Company, Inc. v. City of Anchorage, 516 P.2d 1206, 1211 at n. 5 (Alaska 1973). 16 MELVIN M.STEPHENS.11 A PortSSIORALCOWIIIIATIOI ATTORNEY AT LAW tO 4 MIMI AYE.. sum zoo P.0.50X I112111 KODIAK. ALASKA 99615 (907) 486.3143 Indeed, the entire record of their,behavior for better than three years now indicates that their only intention was delay and obfuscation.' They have refused to i iMplement the parking plan they submitted in support of the variance which permitted them to convert 219 Upper Mill Bay Road to a professional office in the first instance and at the December 20, 1989 jPlanning and Zoning Commission meeting of they presented absolutely no evidence of a viable plan to locate that parking on any other property. The absence of such a plan more that supports the Commission's decision, it virtually mandates it. IV. THE LEDOUXS ARE NOT BEING REOUIRED TO BUILD AN UNSAFE PARKING LOT. , The suggestion that the Ledouxs are somehow being forced to build an unsafe parking lot is nothing short of ridiculous. The Planning and Zoning Commission denied their request to locate their off-street parking requirements on property owned by others because the Ledouxs were unable to demonstrate that they had an enforceable right to use anyone else's property. As ;they have been either unable or unwilling to purchase such a rignt, they may either 1 expend the funds necessary to construct a safeiand well -engineered parking lot in accordance with their original plans or simply cease the illegal use to which they have been putting 219 Upper Mill Bay 2PJ The Ledouxs' lack of effort did not 'escape the Planning and Zoning Commission. At R. 106 Commissioner Coleman comments that "this whole situation . . . seems to be dragging out for an indefinite period of time." He then notes thatin other situations property owners with parking problems had typically "strived very hard to accommodate the code" but contrasts the Ledouxs' foot - dragging, saying "here I do not see much of any trying except a lot of verbiage . . . I have not yet seen a viable plan." 17 MELVIN M.STEPHENS.11 A PROFESSIONAL CORPORATION ATTORNEY AT LAW 104 Mini Avg., SBITE 2011 P. O. BOX 112$ KODIAK. ALASKA 99615 (907) 466-3143 Road for more than three years now. The only thing the municipal authorities in Kodiak are attempting to force them to do is to comply with the zoning laws they have been violating ever since they first occupied 218 Upper Mill Bay Road more than three years ago. CONCLUSION Appellate Rule 508(e) provides for the award of actual attorney's fees against a party who has brought a frivolous appeal or who has appealed simply for purposes of delay. Such an award is merited in this case. From the very beginning of this matter, the Ledouxs have demonstrated repeatedly that their sole objective was to delay compliance with the Kodiak Island Borough Code as long as possible. We are now at the end of this legal odyssey and the court should take steps to see that the administrative and judicial process is not similarly imposed upon in the future. It should affirm the carefully considered and documented decision of the Board of Adjustment and award the City of Kodiak its full attorney's fees on appeal. In addition, it may also wish to consider the propriety of imposing monetary Appellate Rule 510. DATED this day of )11 sanctions under , 19 . Y; ur MEL N M. STEPHENS, Attorney for Appellee 18 APPLICATION FOR BUILDING PERMIT AND CERTIFICATE OF OCCUPANCY - CITY OF KODIAK - KODIAK ISLAND BOROUGH - BUILDING DEPARTMENT Telephone: 486-8070 710 Mill Bay Road APPLICANT TO FILL IN ALL INFORMATION WITHIN BOLD LINES. PLEASE PRINT. USE A BALLPOINT PEN AND PRESS FIRMLY. (OFFICE USE ONLY) STREET ADDRESS: CLASS AND SCOPE OF WORK: SPECIFICATIONS: BUILDING PERMIT NUMBER: DATE OF APPLICATION: LOT: BLOCK:_ 010 NEW DEMOLITION FOUNDATION FOOTINGS STEM WALL PIERS ZONING COMPLIANCE: DATE ISSUED: ALTERATION REPAIR TYPE SUBDIVISION / SURVEY: I'c1�ODL N4C-1 C \ "lirT\S L` f'e _ ADDITION MOVE DIMENSIONS VALUATION BASIS; BUILDING PERMIT FEE: DEPTH IN GRND O W NCITY R NAME USE OF BUILDING AUTHORIZED BY THIS PERMIT: REINFORCEMENT VALUATION: PLAN CHECK FEE: 750C). CC) BOLT SPACING CRAWL SPACE HEIGHT INCHES OCCUPANCY GROUP: TOTAL FEE: MAILING ADDRESS: A B E H I M R -lb 00 CRAWL SPACE VENT SQ. FEET & STATE: SIZE HEIGHT STRUCTURAL SPECIES & GRADE SIZE SPACING SPAN NO. OF ROOMS STORIES RECEIPT NO: TELEPHONE: NO. OF FAMILIES GIRDERS DIV. 1 2 3 4 5 6 EACH OF THE FOLLOWING STAGES OF CONSTRUCTION REQUIRES INSPECTION BE REQUESTED & COMPLETED TYPE OF BUSINESS GIRDERS A R C HCITY E N G NAME: NO. OF BLDGS NOW ON LOT JOISTS 1ST FLOOR USE OF EXISTING BLDGS JOISTS 1ST FLOOR MAILING ADDRESS: SIZE OF LOT JOISTS 2ND FLOOR WATER: PUBLIC PRIVATE JOISTS 2ND FLOOR TYPE OF CONSTRUCTION PRIOR TO PROCEEDING WITH I II III IV V N 1 -HR FR H.T. ANY FURTHER WORK: FOR INSPECTION CALL 486-8070 & STATE: SEWER: PUBLIC PRIVATE CEILING JOISTS INSULATION TYPE & THICKNESS: EXTERIOR WALLS TELEPHONE: FOUNDATION BEARING WALLS EXCAVATION INTERIOR WALLS UNDERGROUND UTILITIES STATE LICENSE: WALLS ROOF RAFTERS ROOF / CEILING TRUSSES DRIVEWAY PERMIT: FOUNDATION / SETBACKS SUBMITTED FRAMING C N T R A C T O R NAME: SHEATHING TYPE & SIZE: FURNACE TYPE: FLOOR APPROVED ROUGH ELECTRICAL WOOD HEATER YES NO TYPE ROUGH PLUMBING MAILING ADDRESS: ADEC APPLICATION: FINAL WALLS SUBMITTED DATE C.O. ISSUED: CITY & STATE: ROOF I HEREBY ACKNOWLEDGE THAT I HAVE READ THIS APPLICATION, THAT IT IS CORRECT AND THAT I AGREE TO COMPLY WITH ALL ORDINANCES AND LAWS REGULATING BUILDING CONSTRUCTION APPLICANT: FINAL APPROVAL ALASKA FIREMARSHAL REVIEW: SUBMITTED: APPROVED: TELEPHONE: FINISH MATERIAL: ROOF APPROVED - BUILDING OFFICIAL: STATE LICENSE: EXTERIOR SIDING INTERIOR WALLS NOTES: / 4 w h'C..% �'.� , �c S ��A415161ij8,9 UTILITY CONNECTION FEE N k $0v3DATE TIER J $ Vi RECEIPT # �c%�'SEWER N VIZ)$ to CASHIER ,,,0 AtO. % 4:1