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
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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....
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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
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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
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