KODIAK TWNST BK 8 LT 6A,B,C - Parking Plan Review (2)JAMIN,
MATTHEW 0. JAMIN,
C. WALTER EBELL
JOEL H. BOLGER'
DIANNA R. GENTRY
ALAN L. SCHMITT
WALTER W, MASON"'
DUNCAN 5, FIELDS
• M if TtO TO n.00000,00
00‘05•• Mo
i T COtO 280MlX000,t SOtw@•P
100 f0
Kurt M. LeDoux, Esq.
LeDoux & LeDoux
219 Mill Bay Road
Kodiak, Alaska 99615
EBELL, BOLGER & GENTRY
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
323 CAROLYN STREET
I(ODIAK, ALASKA 99615
FACSIMILE: (907) 486-6112
TELEPHONE: (907) 486-6024
REPLY TO KODIAK OFFICE
December 27, 1989
Re: Kodiak Island Borough
Our File No. 4095-'87
Dear Kurt:
v. LeDoux
SEATTLE OFFICE:
119 FIRST AVENUE SOUTH
SUITE 460, MATNARO 041L1DIN0
SEATTLE, WASHINGTON 96100
FACSIMILE: 1206) 623'T521
RECEPHOl 622.7634
DEC 2 719
COMMUNITY DEVELOPMENT
DEPT
I prepared the enclosed settlement agreement for your review
following our conversation. The document is intended to evidence
our agreement that you will provide the parking either by
construction or by providing an alternate parking location upon a
final decision of the Board of Adjustment or the Planning and
Zoning Commission. The agreement leaves open the issue of costs
and attorneys fees and provides' that it is enforceable as a
judgment. Please let me know your reaction prior to the summary
judgment hearing.
JHB:lcs
Enclosure
/cc: Duane Dvorak
871. 005
Sincerely yours,
JAMIN, EBELL, BOLGER & GENTRY
1
IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
THIRD JUDICIAL DISTRICT
AT KODIAK
KODIAK ISLAND BOROUGH,
Plaintiff, )
v.
KURT M. LEDOUX and )
GABRIELLE R. LEDOUX );
)
Defendants. )
)
Case No. 3K0-88-210 Civil
SETTLEMENT AGREEMENT
An action has been filed against the defendants by the Kodiak
Island Borough claiming that ,they have violated certain zoning
ordinances with respect to off-street parking space requirements. The
action involves certain real property which\ the defendants own,
commonly 'referred to as 219 Mill Bay Road, Kodiak, Alaska and more
particularly described as:
Lot six (6) , Block eight (8) , Kodiak 'Town: Site
according to the Plat of U.S. Survey 2537B located
in the Kodiak Recording District, Third Judicial
District, State of Alaska (hereinafter'"Property").
The defendants, have on November 10, 1989 submitted an application to
the Planning and Zoning Commission for an alternate parking location
pursuant'to KIBC 17.50.030. The Planning and Zoining Commission denied
the defendants' application on December 20, 1989. The defendants plan
I
to appeal the Planning and Zoning Commission decision to the Kodiak
JAM, EBELL.
LGER & GENTRY
+i] CAROLYN STREET
.ODIAK. AK 99615
1907) 486.6024
•
JAMIN. EBELL
_GER & GENTRY
23 CAROLYN STRUT
MAK. AK 99615
s 907) 486-5024
City Council sitting as Board of Adjustment. Accordingly, in order
to --.resolve this matter without further expense and delay of
litigation, the parties stipulate and agree as follows:
1. The defendants will prosecute their ',appeal regarding an
alternate parking location to the Board of Adjustment in a diligent
and timely manner;
- _
Following_a_decision of the,Board lof_Adjustment, the
(1.-Steh-dants will discontinue the.useof.the property as a.professional-
. [
offxce
,buildinguntil_ they construct eight ({8) !off-street par)iihg.
spaces on the properti-pursuant to the protsions Of -the-KOdiak-Thlafid
- -
. -
_ _ . •-
Borough Code and the parking plan they previouSlY.Submitted or until-
- - - - - -
they provide an alternate parking location, pursuant tb-RIBC 17:57-.616
s4hi-ch-rs-app-raved-by—the final dedision of the reoard. of Ad
?ustment or
I 0.
the Planning and Zbnirig C�mmission UpOn remand
LTL_ The Kodiak Island 'Borough may construct the -16(fUllred
driveway nrid-OffcSfteOt parking Spaces on the property pursuant_to_the
provisions of Kddiek-leland Borough Code at the defendants sole.00s,t
and expeeSd-fn—th-et event- that- they do not comply with -Elie'proQisidxis
------- -
of Paragraph_2withrn thirty (30) days foAlowing nfinal_decision of
decieibnof -dhelPlanningnnd-Zbnirig
_ - r
Commiseipni_f_a_remand_ii_ordere4;,.
4. This agreement shall have the force and effect of a
judgment, and the terms of this agreement may be incorporated into a
decree of this court;
SETTLEMENT AGREEMENT - Page 2
3K0-88-210Civ
4095\87P.021
7
JAMIN, EBELL
LGER & GENTRY
.29 CAROLYN STREET
-)OIAK. AK 99615
.907) 486-6024
5. Either party may move for an award,of,costs and attorneys
fee S- pursuant to the provisions of the Civil Rulers.
DATED this day of December, 1989 at Kodiak, Alaska.
1
LEDOUX & LEDOUX JAMIN, EBELL, BOLGER & GENTRY
Attorneys for Defendants Attorneys fpr Plaintiff
By: KURT M. LEDOUX By: JOEL H. BOLGER
SETTLEMENT AGREEMENT - Page 3
3K0-88-210Civ
4095\87P.021
JAMIN, EBELL
LGER & GENTRY
CAROLYN STREET
OOIAK, AK 99615
;907) 486.6024
I
IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
THIRD JUDICIAL DISTRICT
AT KODIAK
KODIAK ISLAND BOROUGH, )
v. ),
KURT M. LEDOUX and )
Case No. 31{0-88-210 Civil
Plaintiff,
GABRIELLE R. LEDOUX
Defendants.
JUDGMEN
[Civil
(UPON STIPULATION
Rule 57(b)(1))
An action has been filed against the defendants by the Kodiak
Island Borough claiming that they have violated certain zoning
ordinances with respect to off-street parking space requirements. The
action involves certain real property which, the defendants own,
commonly referred to as 219 Mill Bay Road, Kodiak, Alaska and more
particularly described as:
Lot six (6), Block eight (8), Kodiak Town Site
according to the Plat of U.S. Survey 25378B located
in the Kodiak Recording District, Third Judicial
District, State of Alaska (hereinafter ",Property").
The defendants, have on November 10, 1989 submitted an
application to the Planning and Zoning Commission for an alternate
I
parking location pursuant to KIBC 17.50.030. TheiPlanning and Zoning
Commission denied the defendants' application on;December 20, 1989.
I i
The defendants plan to appeal the Planning and Zoning Commission
decision to the Kodiak City Council sitting as Board of Adjustment.
(. .iia) )
LAWN. EBELL
.LGER & GENTRY
03 CAROLYN STREET
ODIAK, AK 99615
941) 496-6024
IT IS THEREFORE, ORDERED, ADJUDGED and. DECREED as follows:
1. The defendants will prosecute their appeal regarding an
alternate parking location to the Board of Adjustment in a diligent
and timely manner;
2. Following a decision of the Boaid of Adjustment, the
defendants will discontinue the use of the property as a professional
office building until they construct eight (8) off-street parking
spaces on the property pursuant to the provisions of the Kodiak Island
•
Borough Code and the parking plan they previously submitted or until
they provide an alternate parking location, pursuant to KIBC 17.57.030
which is approved by the final decision of the Board of Adjustment or
the Planning and Zoning Commission upon remand;
'3. The Kodiak Island Borough may construct the required
driveway and off-street parking spaces on the property pursuant to the
provisions of Kodiak Island Borough Code at the; defendants' sole cost
and expense in the event that they do not comply with the provisions
of Paragraph 2 within thirty (30) days following a final decision of
the Board of Adjustment or a final decision of the'Planning and Zoning
Commission if a remand is ordered;
4. Either party may move for an award of costs and attorneys
fees pursuant to the provisions of the Civil Rules.
DONE this day of December, 1989.
ROY H. MADSEN
Superior Court Judge
JUDGMENT UPON STIPULATION - Page 2
3K0-88-210 Civ
4095\87P.022
MATTHEW D. JAMIN
C. WALTER EBELL
JOEL H. BOLGER,.
OIANNA R. GENTRY
ALAN L. SCHMITT
•AOMITTED TO WASH,NOTON
AND ALASKA BARS
All OTSCPS ADMITTED TO
ALASKA BAR
JAMIN, EBELL, BOLGER & GENTRY
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
323 CAROLYN STREET
KODIAK, ALASKA 99815
FACSIMILE: (907) 488.8112
TELEPHONE: (907( 486-6024
REPLY TO KODIAK OFFICE
November 21, 1989
Linda Freed_ _
Community Development Dept.
Kodiak Island Borough
710 Mill Bay Road
Kodiak, Alaska 99615
Re: Kodiak Island Borough
Our File No. 4095-87
Dear Linda:
The
judgment
December
LeDoux's
-JHB:ls-
87L.004
v. LeDoux
SEATTLE OFFICE:
119 FIRST AVENUE SOUTH
SUITE 320, MAYNARD BUILDING
$CATTLE, WASHINGTON 98104
fAOSIMILE: (206) 923.5016
TELEPHONE: (206) 622-7034
JOEL H. BOLGER
court has postponed the hearing on the motion for summary
in our case against Kurt and Gabrille LeDoux until
29, 1989 at 2:30 P.M. Please keep me advised about the
pending application to the Planning and Zoning Commission.
Sincerely yours,
JAMIN, EBELL, BOLGER & GENTRY
RECFWED
NOV 2 X 1989
COMMUNITY DEVELOPMEN';
DEPT
MATTHEW D. JAMIN
C. WALTER EBELL
JOEL H. BOLGER*
DIANNA R. GENTRY
ALAN L. SCHMITT
.ADMITTED TO• WASMINOTON
AND ALASKA BARS
ALL OTKVIS ADMI»[D TO
ALASKA SAP
JAMIN, EBELL, BOLGER & GENTRY
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
323 CAROLYN STREET
KODIAK, ALASKA 99615
Ms. Linda Freed
Kodiak Island Borough
_ 710 Mill Bav__ Read _ _-
Kodiak, Alaska 99615
FACSIMILE: (907) 486-6112
TELEPHONE: (907) 486.6024
REPLY TO KODIAK OFFICE
October 25, 1989
Re: Kodiak Island Borough
Our File No. 4095-87
Dear Linda:
SEATTLE OFFICE:
119 FIRST AVENUE $QUTH
SUITE 320, ASHINGT BUILDING
SEATTLE. WASHINGTON 98104
FACSIMILE: (208) 623'5814
TELEPHONE: (206) 6220'634
JOEL H. BOLGER
v. Kurt and Gabrielle LeDoux
Kurt LeDoux called on October 24, 1989 and 'requested that we
postpone further action in the above captioned case pending his
application to the Planning and Zoning Commission for the use of
the Holmes Johnson Clinic as an alternate parking space. I told
Kurt that I would pass the proposal on to you. I think it may be
worth considering, especially if 'we put some deadlines on the
application and consideration by P&Z, since a P&Z determination may
be exactly what the Judge will order anyway. Please give me a call
to share your thoughts. ,
JHB:ls
4095\87L.003
-2 Cis 4
IDA
P�
L-c'C-+t.'L-/. .o... 'Ttc..V f+
:. T '
Sincerely yours,
JAMIN, EBELL, BOLGER & GENTRY
•
r-1 ac Ltu-1
RECEIVED
OCT 2 61989
COMMUNITIY DEVELOPMEN', ,
PF,PT
MATTHEW D. JAMIN
C. WALTER EBELL
JOEL H. BOLGER•
DIANNA R. GENTRY
ALAN L. SCHMITT
OMITTED TO WASHINGTON
AND ALASKA BARS
ALL OTHERS ADMITTED TO
ALASKA BAR
JAMIN, EBELL, BOLGER & GENTRY
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
323 CAROLYN STREET
KODIAK, ALASKA 99615
Linda Freed
Kodiak Island- Borough__
710 Mill Bay Road
Kodiak, Alaska 99615
FACSIMILE: (907) 486-6112
TELEPHONE: (907) 486-6024
REPLY TO KODIAK OFFICE
October 9, 1989
SEATTLE OFFICE:
119 FIRST AVENUE SOUTH
SUITE 320, MAYNARD BUILDING
SEATTLE. WASHINGTON 98109
FACSIMILE: (206) 623-5818
TELEPHONE: (206) 622-7634
JOEL H. BOLGER
Re: Kodiak Island Borough v. Kurt and Gabrielle LeDoux
Our file: 4095-87
Dear Linda:
Kurt LeDoux called on the afternoon of October 5, 1989, with
a proposal for settlement. He said that Bernie Lindsey had told
him that it was impractical to build a parking lot in the back
yard. He said that Bernie said that a concrete retaining wall
between LeDoux's yard and White's yard would be required. He also
said that Dr. Robert Johnson was willing to allow Kurt to use seven
parking spaces at the Holmes -Johnson Clinic. I said that I would
pass this information along to you. I talked to Kurt again on
October 6. I told him that I did not have an answer for him and
did not have authority to settle in the manner he suggested.
Please let me know if you want to take any furtheractionon Mr.
LeDoux's proposal.
Sincerely yours,
JAMIN, EBELL, BOLGER & GENTRY
„
`n, '- 1a-Lciiot -tee n
JHB:cav �K
kat._ .
4095\87L.001
cx•
d C3 ICF11VE
CC ►, i 3 1989
COMMUNITY DEVELOPMENT
DEPT
MATTHEW D. JAMIN
C. WALTER EBELL
JOEL H. BOLGER.
DIANNA R. GENTRY
ALAN L. SCHMITT
.AOM,TT[D TO WASHINGTON
ARO ALASKA BARS
ALL OTHERS ADMITTED TO
ALASKA BAR
.JAMIN, EBELL, BOLGER & GENTRY
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
323 CAROLYN STREET
KODIAK, ALASKA 99615
-Ms:- Linda`Freed'-" ---
Kodiak Island Borough
710 Mill Bay Road
Kodiak, AK 99615
FACSIMILE: (907)466:6112
TELEPHONE: (907) 486-6024
REPLY TO KODIAK OFFICE
September 1, 1989
Re: Kodiak Island Borough v.
3K0-89-210 Civil
Our File No. 4095-87
Dear Linda:
LeDoux
SEATTLE OFFICE:
119 FIRST AVENUE SOUTH
Su1TE 320, MATNAR0 BUILOING
SEATTLE, WASHINGTON 981O4
fACSIM ILE: (208) 623.5018
TELEPHONE: (206} 622-7634
JOEL H. BOLGER
The clerk of court scheduled the above -captioned action for
trial during the week of March 27, 1990. Calendar call will be
held on March 23, 1990 at 9:00 a.m. I will appear at calendar call
and obtain the exact date for trial. By copies of this letter I
am advising you, Bob Scholze, and Gordon Gould that your testimony
may be required during the period, March 27 through1March 30, 1990.
The facts we will present are exactly the same as the facts you
attested to in the affidavits which were previouslyprepared in
this action. Do not hesitate to contact me if you have any
questions.
JHB:cat
cc: Bob Scholze
Gordon Gould
Sincerely,
JAMIN, EBELL, BOLGER & GENTRY
RECEIVED
CO
'SEP 5 1989
UNITY DEVELOPM£NL
DEPT
VII. OLD BUSINESS
There was no old business.
VIII. NEW BUSINESS
There was no new business.
IX. COMMUNICATIONS
COMMISSIONER KNUDSEN MOVED TO ACKNOWLEDGE RECEIPT of
items A through H of communications. The motion was seconded and
CARRIED by unanimous voice vote.
A) Letter dated June 28, 1989, from Bob, Scholze to Kodiak Livestock
Coop, re: Lot 3, Block 4, Tract A, Bells Flats Alaska Subdivision.
B) Public Hearing Draft dated June1 1989 of the Old Harbor
Comprehensive Plan.
C) Two letters dated July 10, 1989, from Joel H. Bolger one to LindaL
Freed andt?
and
Kurt LeDoux, re: Kodiak Island Borough vs. Kurt?
LeDoux and Gabrielle LeDoux./
D) Letter dated July 13, 1989, to Charles Hollister from Jennifer L.
Roberts, District Hydrologist, Alaska Department of Environmental
Conservation (with attachment).
E) Letter dated July 14, 1989, to Peter and ;Diedre Bailey from Bob
Scholze, re: Portion of Lot 18A, U.S. Survey 3100.
F) Memorandum dated July 17, 1989, too Linda L. Freed from Robert
MacFarlane, Facilities Coordinator, re: Subdivision Packet Comments. '
G) tetter dated July 19, 1989, to Dave Crowe from Tom Hendel.
I
H) Ordinance 89-18-0 adopted by the Kodiak Island Borough Assembly on
July 6, 1989, re: Title 16 Amendments.
There were no further communications.
X. REPORTS
COMMISSIONER KNUDSEN MOVED TO ACKNOWLEDGE RECEIPT of
item A of reports. The motion was seconded 'and ;CARRIED by unanimous
voice vote.
A) Status Report from the Community Development Department.
There were no further reports.
The Commission deferred findings of fact for Appearance Request A until the
July 26, 1989 Special Meeting.
XI. AUDIENCE COMMENTS
There were no audience comments.
1-j i q r P+Z
MATTHEW D. JAMIN
C. WALTER EBELL
JOEL H. BOLGER*
OIANNA R. GENTRY
ALAN L. SCHMITT
*ADMITTED TO WASHINGTON AND
ALASKA BAR
ALL OTHERS ADMITTED TO
ALASKA BAR
L
JAMIN, EBELL, BOLGER & GENTRY
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
119 FIRST AVENUE SOUTH
SUITE 320. MAYNARD BUILDING
SEATTLE, WASHINGTON 98104
FACSIMILE: (206) 623-7521
TELEPHONE: (206) 622.7634
REPLY TO SEATTLE OFFICE
July 17, 1989
KODIAK OFFICE:
323 CAROLYN STREET
P.O. BOX 4269
KODIAK. ALASKA 99615
FACSIMILE (907) 486-6112
TELEPHONE: (907)486/6024
Linda Freed
Kodiak Island Borough
710 Mill Bay Road
Kodiak, Alaska 99615
Re: Kodiak Island Borough v. Kurt and Gabrielle LeDoux
4095\87
Dear Linda:
Please find enclosed a copy of the Motion for Summary
Judgment I have filed with the superior court. I have also
received notice that a trial setting conference is scheduled in
this action on August 31, 1989. At that time a trial date will
be established and discovery and motion deadlines will be set.
Please do not hesitate to contact me if you haye any questions.
Sincerely,
JAMIN, EBELL, BQLGER'& GENTRY
Joel H. B
Attorney
JHB:ss
Enclosure
4095\87L.022
g
RECEIVED
JUL 2i1989
COMMUNITY DEVELOPMENT
DEPT
IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
THIRD JUDICIAL DISTRICT
AT KODIAK
KODIAK ISLAND BOROUGH,
Plaintiff,
vs.
KURT M. LEDOUX and
GABRIELLE R. LEDOUX
Defendants.
Case No. 3K0-89-210 Civil
MOTION FOR SUMMARY JUDGMENT
Plaintiff, Kodiak Island Borough, by and through counsel,
moves this court for summary judgment pursuant to Civil Rule 56
requiring the defendants to discontinue the use of the property
described in the complaint as a professional office building until
the defendants construct eight off-street parking spaces on the
property pursuant to the provisions of the Kodiak Island Borough
Code. The basis for this motion is that there is no genuine issue
as to any material fact and that the plaintiff, is entitled to
judgment as a matter of law. This motion is supported by the
enclosed memorandum, affidavits, and exhibits.
JAMIN. EBELL.
4OLGER B GENTRY
A PROFESSIONAL
CORPORATION
ATTORNEYS AT LAW
9 FIRST AVE. SOUTH
SUITE 320
MAYNARD BUILDING
SEATTLE. WA 98104
(206) 622.7834
JAMIN, EDELL,
eOLGER & GENTRY
A PROFESSIONAL
CORPORATION
ATTORNEYS AT LAW
N9 FIRSTAVE. SOUTH
SUITE 320
MAYNARD BUILDING
SEATTLE, WA 90 IPA
(206) 622.7634
DATED this
day of guff
, 1989.
JAMIN, EBELL, BOLGER & GENTRY
By H. Bolg
Counsel for Plaintiff
I certify that a true and
correct copy of the foregoing
Motion for Summary Judgment
and supporting docum nts were
mailed on , 1989, to:
Kurt M. LeDoux
Gabrielle R. LeDoux
219 Mill Bay Road
Kodiak, AK 99615
JAM N, E L , BOLGER & GENTRY
4095\87P.005
MOTION FOR SUMMARY JUDGMENT - 2
Kodiak Island Borough v. LeDoux
3K0-88- Civil
.JAMIN. Esau.
3OLGER& GENTRY
A PROFESSIONAL
CORPORATION
ATTORNEYS AT LAW
19 FIRST AVE. SOUTH
SUITE 320
rNARD BUILDING
SEATTLE. WA 98104
(206) 622`7634
r"
IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
THIRD JUDICIAL DISTRICT
AT KODIAK
KODIAK ISLAND BOROUGH,
Plaintiff,
vs.
KURT M. LEDOUX and
GABRIELLE R. LEDOUX
Defendants.
Case No. 3K0-89-210 Civil
MEMORANDUM IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT
The plaintiff Kodiak Island Borough seeks a summary
judgment pursuant to Civil Rule 56 requiring the defendants to
discontinue the use of their property as a professional office
building until they construct eight off-street parking spaces on
the property. Uncontested facts establish that, the defendants
have repeatedly promised to provide this off-street parking which
is clearly required as a matter of law.
I.
STATEMENT OF FACTS.
On October 13, 1987, Toby Cook submitted an application
for a variance on behalf of Joel Davis with respect to property
described as Lot Six (6)(A),(B), and (C), Block Eight (8), Kodiak
JAMIN. EBELL.
BOLGER & GENTRY
A PROFESSIONAL
CORPORATION
ATTORNEYS AT LAW
119 FIRST AVE. SOUTH
SUITE 320
MAYNARD BUILDING
SEATTLE. WA 90104
(200) 622.7634
Townsite, also referred to as 219 Upper Mill, Bay Road, and
proposing the use of the existing single family residence on the
property as a professional office and upstairs apartment. Exhibit
A. The application was accepted on October 14„ 1987, "subject to
submittal of a parking plan by 10/23/87". Exhibit A. The owner
of the property, Joel Davis, submitted written: authorization for
Mr. Cook to pursue the application by virtue ,of a letter dated
October 14, 1987 and received by the Borough on October 19, 1987.
Exhibit B.1
In support of the variance application, Kurt M. LeDoux,
of LeDoux & LeDoux, submitted an as built survey labelled
"proposed use of real property for combination office and upstairs
apartment." Exhibit C. The proposal included a plan for a
driveway along the northeast boundary of the property and a
parking area in the western most corner of the{property including
"eight 8' x 20' parking spaces." Exhibit C.
The Planning and Zoning Commission scheduled a public
i
hearing on the variance application for Wednesday, November 18,
I I
1987. In response to the public hearing notice, a neighboring
1 The variance was requested to permit an ;existing single
family residence to be converted into a professional office
building. The lot is located in an R-3 multi -residential zone.
Exhibit F; Affidavit of Linda Freed. The minimum lot area in an
R-3 zone is 7200 square feet for a single family dwelling unit and
the minimum lot width is 60 feet. KIBC 17.20.030. The lot is
substandard in area (6211 square feet) and width (Average = 47.42
feet.) Exhibit F at 4; Exhibit I. The only use allowed on a
nonconforming lot is a single family residence;, a variance is
required to allow any other type of land use. (KIBC 17.36.030.
The variance in the present case was therefore necessary to
convert the structure from a residence to a professional office
building.
MEMORANDUM IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT- 2
Kodiak Island Borough v. LeDoux 3K0-89-210 Civil
JAMIN. EOELL.
BOLGER & GENTRY
A PROFESSIONAL
CORPORATION
ATTORNEYS AT LAW
119 FIRST AVE. SOUTH
SUITE 320
MAYNARD BUILDING
SEATTLE. WA 99104
(206) 622.7694
land owner, Mike Hendel, p/o/a Tom Hendel, requested a solid fence
between Lot Five and Lot Six as a condition of:approval and asked
the Commission to check the driveway and parking area. Exhibit D.
In response Mr. LeDoux delivered a letter to:the Kodiak Island
Borough on October 22, 1987, indicating as follows:; •
I would like to modify my proposedi variance
request.
I have requested the Community Baptist;Church to
grant me a parking easement. This request is
being considered by the Church.
I therefore need to go forward with the proposed
parking behind the house. Mr. Tom Hendelat 217
Upper Mill Bay wants me to build a six-foot
wooden fence from the rear of the house along
the property line to Harborview Apartments
fence. I have no objection to this., 1 would
request that the' Planning and Zoning permit my
use of 219 Upper Mill Bay as a combination
office and upstairs apartment with either the
parking requirements being satisfied by the use
of Community .Baptist Church if an 'agreeable
arrangement can be worked out with the:Church or
the use of the back yard at 219 Upper Mill Bay
Road. If the back yard is used as a parking
lot, a six-foot fence would be erected„albng the
parking lot between 217 Upper Mill Bay Road and
219 Mill Bay Road.
Exhibit E.
The Community Development Department fof the Kodiak
Island Borough recommended to the Planning and; Zoning Commission
that the commission grant the variance on the condition that a
six-foot solid wood fence be placed on the left side and rear
property lines of the lot. Exhibit F at 7. The staff
recommendation clearly incorporated the parking plan which had
been submitted by Mr. LeDoux.
MEMORANDUM IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT- 3
Kodiak Island Borough v. LeDoux 31(0-89-210 Civil
JAMIN, EDELL,
BOLGER & GENTRY
A PROFESSIONAL
CORPORATION
ATTORNEYS AT LAW
119 FIRST AVE. SOUTH
SUITE 320
MAYNARD BUILDING
SEATTLE, WA 98104
(206) 622.7634
The proposed use of the property for anloffice
and apartment requires the provision, of eight
off-street parking spaces, computed as follows:
. These spaces will be located in the rear
yard and accessed by a driveway along the right
side of the structure which is only 9!3 feet to
9.9 feet in width along the side of thei house.
The proposed parking plan is attached.'
Exhibit F at 4, 8.
The Planning and Zoning Commission held a hearing on the
variance application and on November 18, 1987: 'Mr. Cook stated
that the alternative of using the church lot forjparking was not
possible. Exhibit G. The minutes of that meeting show that the
variance was granted in reliance on the parking lot proposal
submitted by Mr. LeDoux.
However, since the office building; will be
located between two single family residences and
utilize the back yard for parking, 'al buffer
,between the parking lot and adjoining properties
is appropriate.
Exhibit G at 5.
On November 19, 1987, a letter containing the Planning
and Zoning Commission's findings granting the variance in reliance
on the parking plan was forwarded.to Toby Cook with a copy to Kurt
LeDoux. Exhibit H at 1 - 2. There was no appeal taken from the
Commission decision. Affidavit of Linda Freed. The property was
conveyed from Joel Davis and Carol Davis to Kurt M. LeDoux and
Gabrielle LeDoux by statutory warranty deed executed December 5,
1987 and recorded December 11, 1987 at Book 89,, Page 289, Kodiak
Recording District. Exhibit I.
Mr. and Mrs. LeDoux did not construct the driveway and
�
parking lot contained in the parking plan submitted with the
MEMORANDUM IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT- 4
Kodiak Island Borough v. LeDoux 3K0-89-210 Civil
JAMIN� EBELL,
BOLGER & GENTRY
A FROFE SIONAL
CORPORATION
ATTORNEYS AT LAW
119 FIRST AVE. SOUTH
Su1TE 3RO
MAYNARD BUILDING
SEATTLE. WA 90104
(zoo) 622.7034
variance application. On January 19, 1988, a letter was sent from
I
the Community Development Department to Kurt; LeDoux indicating
among other things that he was not in compliance with the off-
street parking requirements of the Kodiak Island Borough Code and
requesting that he contact the
zoning compliance.
Exhibit J.
received zoning compliance on
requirement that he
"install
office
Mr.
February
eight
8'
to obtain the required
LeDoux applied for and
24, 19881which included the
x 20' plarking spaces with
bumper guards" on the real property. Exhibit K; Affidavit of
Gordon Gould.
On October 17, 1988, Bob Scholze ,ofi the Community
Development Department contacted Kurt LeDoux
by telephone.
Affidavit of Robert Scholze. Mr. Scholze reminded�Mr. LeDoux that
according to the conditions of the variance granted him for the
use of the residence at 219 Mill Bay Road as an office, he was to
install eight parking spaces behind the building. Mr. Scholze
informed Mr. LeDoux that failure to follow through on the parking
plan which he had submitted and on which the variance had been
1 i
granted left him in violation and could ultimately result in the
business use of that building being discontinued.
On October 25,' 1989, Mr. Scholze contacted Kurt LeDoux
I
by telephone. Mr. LeDoux stated that he planned to,put the
parking lot in but was unsure about the weather. iHe said that it
would take maybe two months. Mr. Scholze stated that he would
write an administrative decision and that Mr. LeDOux could either
comply with or appeal the decision to the Planing and Zoning
MEMORANDUM IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT- 5
Kodiak Island Borough v. LeDoux 3K0-89-210 Civil ;
JAW N, EBELL.
BOLGER & GENTRY
A PROFESSIONAL
CORPORATION
ATTORNEYS AT LAW
II9 FIRST AVE. SOUTH
SLIME 320
HAYNARD BUILDING
SEATTLE. WA 96104
(206) 622-T634
Commission indicating a time when the work would be expected to be
in progress. Affidavit of Robert Scholze. On October 27, 1988,
Mr. Scholze issued an administrative decision requiring the
parking lot to be completed:
A parking lot providing eight parking spaces and
bumper guards will be installed to the rear of
the property behind the building as indicated in
the parkingplanon file. Construction, on the
parking lot will begin within 30 days 'and be
completed within 90 days of your receipt of this
letter.
Exhibit L.
Mr. Scholze contacted Mr. LeDoux to confirm his receipt
of the certified letter and his understanding of the scheduled
deadlines. He confirmed that he received the letter and that he
understood that his ten day appeal period having'passed, he must
begin work on the parking lot installation by:November 30, 1988,
and complete the work by January 30, 1989or face further
enforcement action. Mr. Scholze inspected, the property on
November 28, 1989 and November 30, 1988 and 'determined that no
work had been commenced on the parking lot. Affidavit of Robert
Scholze.
Mr. LeDoux came to the Kodiak Island Borough office and
talked with Linda Freed at the Community Development Department in
January of 1989. He stated that he couldn't finish the parking
lot by the end of the month. Ms. Freed stated that he was already
in violation of the administrative decision because he had not
commenced any work on the parking lot and that enforcement action
had been initiated. Affidavit of Linda Freed.
MEMORANDUM IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT- 6
Kodiak Island Borough v. LeDoux 3K0-89-210 Civil
.JAMIN. EBELL.
BOLGER & GENTRY
PROFESSIONAL
CORPORATION
ATTORNEYS AT LAW
119 FIRST AVE. SOUTH
SUITE 320
MAYNARD BUILDING
SEATTLE. WA 9e104
{20E4,522.7534
II.
THE LEDOUXS ARE REQUIRED TO PROVIDE OFF-STREET PARKING
The Kodiak Island Borough Code requires as follows
respect to off-street parking:
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. 1.
Dwellings: a. Single family dwellings. . .
two parking spaces .for each unit; . . . 2.
Buildings other than dwellings: a. bank,
office building, professional office, or clinic:
one parking space for each 300 square feet of
gross floor area, but not less than three
spaces. . .
with
The staff of the Community Development Department determined that
eight off-street parking spaces were required under this section.
Exhibit F at 4. The real property may not be used unless it
conforms to these zoning regulations.
17.03.020. Conformity With Regulations
Required. No building, part of a building, or
any land shall be used, occupied, erected, moved
or altered unless in conformity with the
provisions of this title for the district in
which the building or land is located.
KIBC 17.03.020.
Administrative enforcement action is specifically
authorized under the zoning code.
17.75.010. Administrative Enforcement Action.
(a) The zoning officer may order: (1) the
discontinuation of unlawful uses of land or
structures. .
KIBC 17.75.010(a).
The zoning code specifically requires the court to issue
an injunction upon proof of an existing violation of the code.
MEMORANDUM IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT- 7
Kodiak Island Borough v. LeDoux 3K0-89-210 Civil
.JAMIN, EDELL,
BOLGER B GENTRY
A PROFESSIONAL
CORPORATION
ATTORNEYS AT LAW
I19 FIRST AVE SOUTH
SUITE 320
MAYNARD BUILDING
SEATTLE, WA 98104
(206) 6227634
17.75.030. Penalties and Remedies. . . (a) Not-
withstanding the availability of any other
remedy, the Borough or any aggrieved person may
bring a civil action to enjoin any violation of
this title, any order issued under 17.75.010(a),
or any term or condition of a conditional use,
variance, or other entitlement issued under
this title. . . An action for injunction under
this section may be brought notwithstanding the
availability of any other remedy. Upon
application for injunctive relief and the
finding of any existing or threatened
violation. the superior court shall enjoin the
violation.
KIBC 17.75.030(a)(emphasis added).
Mr. and Mrs. LeDoux are required to provide eight off-
street parking spaces pursuant to KIBC 17.57.020.. The variance
application requested a change in the use of the property from
"SFR" (single family residence) to a proposed use as "a
professional office and upstairs apartment." Exhibit A. The
defendants admit in their answer that they have used a, portion of
the structure as a law office. Answer, paragraph 6. The
defendants also state in their affirmative defenses that the
structure is used as a single family residence. Answer at 3. The
staff of the Community Development Department determined in their
report that the square footage of proposed use of the property for
a law office was 1,799.08 requiring six parkingispaces and that
the second floor dwelling would require two parking spaces.
Exhibit F at 4. This calculation is exactly the same as the area
shown on the first floor of the as built survey which Mr. LeDoux
signed and submitted on behalf of LeDoux and LeDoux in support of
the variance application. Exhibit C; Affidavit of Linda Freed at
3. There is, therefore, no material question that Mr. and Mrs.
MEMORANDUM IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT- 8
Kodiak Island Borough v. LeDoux 3K0-89-210 Civil
JAMIN. EBELL.
BOLGER & GENTRY
A PROFESSIONAL
CORPORATION
ATTORNEYS AT LAW
119 FIRST AVE. SOUTH
SUITE 320
MAYNARD BUILDING
SEATTLE. WA 98104
(206) 622.7634
LeDoux are required to provide eight off-street parking spaces
pursuant to KIBC 17.57.020 as they have repeatedly promised to
provide.
Generally a variance applies to the land rather than its
current owner and runs with the land when it is conveyed to a
person other than the applicant. If a variance is granted subject
to conditions, it does not actually become effective until the
conditions are fulfilled and it may be revoked upon failure to
comply. 3 Anderson, American Law of Zoning, 3rd. Sec. 20.65
(1986). In the present case, Mr. and Mrs. LeDoux are in privity
of estate with the variance applicant by virtue of the warranty
deed issued to them on December 5, 1987. Exhibit I. They are
therefore entitled to the benefits and bound by the burdens of the
variance.
A land owner may not take advantage of a portion of a
variance which is advantageous to their use of the property while
at the same time seeking to avoid the burden of the conditions
which have been placed on the variance. Hogan v. Hayes, 474
N.E.2d 1158, 1162 (Mass. App. 1985). The variance in the present
case allowed Mr. and Mrs. LeDoux to use the property they
purchased as a law office. The variance was directly based on
their promise to provide off-street parking pursuant to the
parking plan they submitted. Exhibit G. at 5. Mr. and Mrs.
LeDoux may not use the property which they purchased as a law
office unless they comply with the •provisions of the parking
ordinance. KIBC 17.03.020. Based on the uncontradicted facts,
MEMORANDUM IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT- 9
Kodiak Island Borough v. LeDoux 3K0-89-210 Civil
JAMIN. EBELL,
BOLGER 6 GENTRY
A PROFESSIONAL
CORPORATION
ATTORNEYS AT LAW
119 FIRST AVE. SOUTH
SURE 320
MAYNARD BUILDING
SEATTLE. WA 96104
(206) 6220634
this court should enter a.summary judgment requiring Mr. and Mrs.
LeDoux to discontinue the use of the property described in the
complaint as a professional office building until they construct
eight off-street parking spaces on the property pursuant t� the
provisions of the Kodiak Island Borough Code.
III.
THE LEDOUX'S DEFENSES ARE BARRED BY THE
DOCTRINES OF ESTOPPEL AND WAIVER
Throughout the administrative proceedings, Mr. and Mrs.
LeDoux and their predecessors in interest have asserted that they
would provide the eight off-street parking space's in compliance
with the plan Mr. LeDoux submitted in support of the variance
application. In their answer, the defendants claim that they are
not required to provide a parking lot. Answer at 3. The
LeDoux's are barred from disputing the necessity of the parking
requirements by the equitable doctrines of estoppel and waiver.
A. Equitable Estoppel.
The general elements required for the application of the
doctrine of equitable estoppel are (1) the assertion of a position
by conduct or word, (2) reasonable reliance on that assertion by
another party,
Anchorage v.
and (3) resulting prejudice., Municipality of
Higgins, 754 P.2d 745, 748 (Alaska 1988);
Municipality of Anchorage v. Schneider, 685 P.2d,94, 97 (Alaska
1984). Each of these elements is established with respect to the
LeDoux's promise to provide a parking lot.
First, Mr. and Mrs. LeDoux and their predecessors in
interest have on numerous occasions asserted the position that
MEMORANDUM IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT- 10
Kodiak Island Borough v. LeDoux 3K0-89-210 Civil
.JAMIN, EBEIL,
801 -GER G GENTRY
A PROFESSIONAL
CORPORATION
ATTORNEYS AT LAW
119 PIRST AVE. SOUTH
SUITE 320
MAYNARD BUILDING
SEATTLE. WA 96104
(206) 6229634
they agree to provide a parking lot on the property. The variance
application was accepted as submitted by Toby Cook "subject to
submittal of a parking plan by October 23, 1987." Exhibit A. As
a result of this requirement, Kurt LeDoux and "LeDoux and LeDoux"
submitted an as built survey containing a plan for eight parking
spaces on the property stating the plan was for the "proposed use
of real property for combination office and upstairs apartment."
Exhibit C. Mr. LeDoux provided a letter on the stationery of
"LeDoux and LeDoux" stating, "I therefore need to go forward with
the proposed parking lot behind the house. . . If the back yard is
used as a parking lot, a six foot fence would be erected along the
parking lot between 217 Upper Mill Bay Road and 219 Upper Mill Bay
Road." Exhibit E. At the hearing before the Planning and Zoning
Commission, Toby Cook stated that the parking alternative using
the adjoining church property was not possible,. Exhibit G at 4.
When Mr. LeDoux obtained zoning compliance for the property on
February 24, 1988, he certified the following parking
requirements: "eight 8' x 20' spaces with bumper guards."
Exhibit K.
Second, it is undisputed that the Kodiak Island Borough
and the Planning and Zoning Commission relied upon the defendants'
promises to provide a parking lot. The staff report recommending
the variance incorporated the parking plan which had been
submitted by Mr. LeDoux. Exhibit F at 4, 8. Based on Mr. Cook's
testimony and the staff recommendation, the Planning and Zoning
Commission granted the variance specifically relying on the
MEMORANDUM IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT- 11
Kodiak Island Borough v. LeDoux 3K0-89-210 Civil
JAMIN. EDELL.
BOLGER & GENTRY
A PROFESSIONAL
CORPORATION
ATTORNEYS AT LAW
119 FIRST AVE. SOUTH
SUITE 320
MAYNARD BUILDING
SEATTLE. WA 98104
(206)622-9634
parking lot proposal. Exhibit G at 5. In addition, the staff
approval of the zoning compliance permit for occupation of the
property was specifically granted upon Mr. LeDoux11s certification
that the parking spaces would be provided. Exhibit K.
Third, it is clear that the reliance upon Mr. LeDoux's
assertions resulted in prejudice to the Kodiak Island Borough and
to the public which it represents. As argued above, the Kodiak
Island Borough Code clearly requires off-street parking to be
provided for a professional office building. Parking requirements
are intended to reduce congestion and provide ifor an orderly
traffic flow. The defendants' assertions that they would provide
a parking lot resulted in the grant of a variance which otherwise
could not have been accepted by the commission.
B. Ouasi-Estoppel.
The doctrine of quasi -estoppel, as distinguished from
strict equitable estoppel, is "the existence of facts and circum-
stances making the assertion of an inconsistent position
unconscionable." Jamison v. Consolidated Utilities, 576 P.2d 97,
102 (Alaska 1978). In determining whether the doctrine of quasi -
estoppel is applicable the trial court should consider (1)
whether the party asserting the inconsistent position has gained
an advantage or produced some disadvantage through the first
position; (2) whether the inconsistency was of such significance
as to make the present assertion unconscionable; and (3) whether
the first assertion was based on full knowledge of the facts. 576
MEMORANDUM IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT- 12
Kodiak Island Borough v. LeDoux 3K0-89-210 Civil
JAMIN. GENTRY SOLGER & GENTRY
A PROFESSIONAL
CORPORATION
ATTORNEYS AT LAW
19 FIRST AVE. SOUTH
SUITE 320
MAYNARD BUILDING
SEATTLE. WA 98104
(206) 622.7634
P.2d at 103. Each of the elements of quasi -estoppel is
established in the present case.
First, there is no question that Mr. and Mrs. LeDoux
gained an advantage by asserting that they would provide a parking
lot. The LeDoux's submitted a parking plan in support of the
variance application for the property showing that they would
comply with zoningordinances by providing eight off-street
parking spaces. Exhibit C. The staff of the community
Development Department and the Planning and Zoning Commission
relied directly on the parking plan during the approval of the
variance allowing the use of the property as a law office.
Exhibit F at 8, Exhibit G at 5. In addition, the zoning
compliance permit for the property was issued upon Mr. LeDoux's
certification that he would "install eight 8' x 20' parking spaces
with bumper guards." Exhibit K.
Second, there is no question that the defendants' present
position is substantially and unconscionably different than the
position which they previously maintained. In addition to the
parking plan and the zoning compliance certifications, Mr. LeDoux
submitted by letter that he would go forward with the proposed
parking behind the house. Exhibit E. In their Answer, the
defendants now maintain that they are not required to provide a
parking lot like other land owners. Answer at 3. Mr. and Mrs.
LeDoux are now taking a position which is exactly opposite to the
position concerning the parking requirements which was taken
before the Planning and Zoning Commission and various officials of
MEMORANDUM IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT- 13
Kodiak Island Borough v. LeDoux 3K0-89-210 Civil
JAMIN. EBELL,
BOLGER & GENTRY
A PROFESSIONAL
CORPORATION
ATTORNEYS AT LAW
119 FIRST AVE. SOUTH
SUITE 320
MAYNARD BUILDING
SEATTLE. WA 98104
(206) 622-7234
' I
the Kodiak Island Borough. This change in, position is both
significant and unconscionable.
1
Third, it is clear from the evidence,that Mr. and Mrs.
' I
LeDoux made their earlier assertions that they would provide a
1 ,
parking lot with full knowledge of the facts.1 The parking plan
submitted by Mr. LeDoux provided a detailed plan'' for a driveway
1
and eight off-street parking spaces. Exhibit,C. After the
1 1
hearing on the variance application had beenlconcluded and Mr.
LeDoux had been warned about the parking requirements he
specifically certified that he would provide' the parking lot.
Exhibit K. There is no chance that the LeDoux's can now claim
that they did not know what was required. Basedion;the uncontested
facts, this court should find that it would be unconscionable to
allow Mr. and Mrs. LeDoux to now change their position and assert
that no parking lot is required.
C. Waiver.
Waiver is generally defined as the intentional
relinquishment of a known right. Waiver can be either express or
I
implicit. An implied waiver arises where the; course of conduct
pursued evidences the intention to waive the right or where
neglect to insist upon the right results in prejudice to another
party. Proof of implied waiver requires direbtand unequivocal
conduct indicating a purpose to abandon or waive a legal right or
acts amounting to estoppel by the party whose conduct is to be
construed as a waiver. Milne v. Anderson, 576; P2d 109, 112-113
(Alaska 1978).
MEMORANDUM IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT- 14 i
Kodiak Island Borough v. LeDoux 3K0-89-210 Civil
JAMIN, EEELL,
BOLGER & GENTRY
A PROFESSIONAL
CORPORATION
ATTORNEYS AT LAW
119 FIRST AVE. SOUTH
SUITE 320
MAYNARO BUILDING
SEATTLE. WA 90104
(206) 622.9634
Mr. and Mrs. LeDoux have pursued alcourse of conduct
which clearly evidenced their intention to waive any right to
contest the parking requirements. First, Mr.jLeDoux,submitted a
parking plan to comply with the parking requ
ants asserted by
the Borough. Exhibit C. Second, he provided a letter agreeing
that he would go ahead with the proposed parking lot behind his
house. Exhibit E. Third, he did not raise any objection to the
parking requirement at the Planning and Zoning'Commission hearing
held on the variance request. Exhibit G. Finally, Mr. and Mrs.
LeDoux accepted a warranty deed to the property,, obviously with
full knowledge of the parking requirements. Exhibit I.
Any prudent person in Mr. and Mrs., LeDoux's position
would have understood that the requirement ofloff-street parking
I
and the Planning and Zoning Commission's decisioniwhich was based
• I,
directly on the parking plan which they submitted. By their
conduct over the course of several months Mr. and Mrs. LeDoux have
now waived their right to contest the applicability of the parking
requirements.
Iv.
THE LEDOUX'S DEFENSES ARE BARREDIBY1
RES JUDICATA AND ADMINISTRATIVE EXHAUSTION
The doctrine of res iudicata provides that a final
'
judgment when entered on the merits is an absolute bar to a
subsequent action between the same parties or those in privity
with them upon the same claim or demand. Drickerson v.
Drickerson, 546 P.2d 162, 169 (Alaska 1976). 1 The judgment bars
relitigation of the grounds for or defenses toRrecovery that were
MEMORANDUM IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT- 15
Kodiak Island Borough v. LeDoux 3K0-89-210 Civil
.JAMIN, ERELL,
OOLGER & GENTRY
A AROFE661ONAL
CORPORATION
ATTORNEYS AT LAW
119 FIRST AVE. SOUTH
SOME 320
MAYNARD BUILDING
SEATTLE. WA 96104
(206) 622. 634
available to the parties regardless
judicially determined. 546 P.2d at 169,
res iudicata applies to adjudicative
administrative agencies. Jeffries v.
Company, 604 P.2d 4, 8 (Alaska 1979);
Fisheries Entry Commissipn, No. S-2560,
1989).
of whether they were
n. 16. 'The doctrine of
determinations made by
Glacier State Telephone
Sublett v, Commercial
slip ?p.1 (Alaska May 5,
I
In Sublett, the applicant for a limited entry permit lost
an administrative hearing in 1978 on his claim that unavoidable
circumstances prevented him from participating in the fishery as a
gear license holder. In 1985, Sublett was advised that he might
be entitled to other points based on economic, dependence and
availability of alternative occupations. The Alaska Supreme Court
held that Sublett was not authorized to appeal the .1985
i I
determination on the basis that his past participation points were
I
wrongfully denied because that claim had been finally adjudicated
i
against him in 1978. The court clearly adopted the rule that res
iudioata bars a collateral attack on a final agency decision made
(
after an adjudicatory hearing. Id.
The same result should apply
in the present case. The
Planning and Zoning Commission made a final determination
concerning the variance application after a Ipublic hearing .on
November 18, 1987. Exhibit G. Mr. LeDoux
decision by a copy of the letter addressed
was informed of that
to i Toby Cook who was
the agent for the applicant. Exhibit H; The decision was clearly
1
based on the parking plan which Mr., LeDoux ;had previously
MEMORANDUM IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT- 16
Kodiak Island Borough v. LeDoux 3K0-89-210 Civil
I j
JAMIN, EE@ELL,
6OLGER & GENTRY
A PROFESSIONAL
CORPORATION
ATTORNEYS AT LAW
119 FIRST AVE. SOUTH
SURE 320
MAYNARD 6WLDINS
SEATTLE. WA 98404
(2064 822.7634
submitted as part of the application process. Exhibit H at 2. No
appeal was taken from the Planning and Zoning Commission
decision.
The Planning and Zoning Commission decision was a final
decision of that agency issued after a full public hearing. The
decision was directly based upon the submissionlof the parking
plan by Mr. and Mrs. LeDoux. No relitigation of the parking
requirement is now allowed under the doctrine of res iudicata.
Mr. and Mrs. LeDoux are also barred from litigating the
parking lot requirement by the doctrine 'of exhaustion of
administrative remedies. The doctrine provides that a party is
not entitled to seek judicial relief for a supposed or threatened
injury until the available administrative remedies have been
exhausted.
The purpose
to perform
gidelson v. Archer, 64 P.2d 171, 176 (Alaska 1982).
of this doctrine is to allow an administrative agency
functions within its special expertise "to make a
factual record,
errors, so
(citations
procedures
176.
In
Development
to apply its expertise, and to correct its own
as to moot judicial controversies,", 645.P.2d at 176
omitted). Deliberate disregard of administrative
weakens the effectiveness of an agency. 645 P.2d at
the present case, Bob Scholze ±of the Community
Department of the Kodiak Island1Borough issued a
27, 1988 requiring Mr. LeDoux and LeDoux and
parking lot as indicated in the parking plan
application. Exhibit L. Mr.
decision on October
LeDoux to provide a
submitted with the variance
MEMORANDUM IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT- 17
]Codiak Island Borough v. LeDoux 3K0-89-210 Civ
1
JAM IN. EBELL.
BOLGER & GENTRY
A PROFESSIONAL
CORPORATION
ATTORNEYS AT LAW
I19 iIRST AVE. SOUTH
SUITE 320
MAYNARD BUILDING
SEATTLE. WA 98104
(206) 6224634
�fMLy
RESPECTFULLY submitted this // day of , 1989.
By:
4095\87P.004
JAMIN, EBELL, BOLGER & GENTRY
MEMORANDUM IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT- 19
Kodiak Island Borough v. LeDoux 3K0-89-210 Civil
sl
Y
JAMIN, EDELL.
3OLGER & GENTRY
A PROFESSIONAL
CORPORATION
ATTORNEYS AT LAW.
19 FIRST AVE. SOUTH
SUITE 320
MAYNARD BUILDING
SEATTLE. WA 98109
(206) 622-7639
IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
THIRD JUDICIAL DISTRICT
AT KODIAK
KODIAK ISLAND BOROUGH,
Plaintiff,
vs.
KURT M. LEDOUX and
GABRIELLE R. LEDOUX
Defendants.
Case No. 3K0-89-210 Civil
INDEX TO EXHIBITS
Affidavit of Linda Freed
Exhibit A - Variance Application
Exhibit B - Letter from Joel Davis authorizing Toby Cook to
I
act as his agent. •
Exhibit C - Parking Plan submitted by Kurt M. LeDoux and
•
LeDoux & LeDoux. •
I
Exhibit D - Public Hearing Notice and Response by Mike Hendel,
I I
p/o/a Tim Hendel.
Exhibit E - Letter from Kurt LeDoux concerning the parking
lot.
Exhibit F - Staff Report
Exhibit G - Minutes of the Planning and Zoning Commission
meeting.
Exhibit H - Decision of the Planning and Zoning Commission.
'
JAMIN. EDELL.
43OLGER & GENTRY
A PROFESSIONAL
CORPORATION
ATTORNEYS AT LAW
69 FIRST AVE. SOUTH
SURE 320
MAYNARD BUILDING
SEATTLE. WA 92104
(206} 622-1534
Exhibit I - Warranty Deed.
I
Exhibit J - Letter from Robert Pederson to Kurt LeDoux.
Exhibit K - Zoning Compliance Permit.
Exhibit L - Letter from Bob Scholze to Kurt;LeDoux.
Affidavit of Gordon Gould
Affidavit of Robert Scholze
4095\87D.000
NDEX TO EXHIBITS/MEMORANDUM IN SUPPORT
F MOTION FOR SUMMARY JUDGMENT - Page 2
IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
THIRD JUDICIAL DISTRICT
AT KODIAK
KODIAK ISLAND BOROUGH, )
Plaintiff, )
)
vs. )
)
KURT M. LEDOUX and )
GABRIELLE R. LEDOUX )
)
)
Defendants. )
)
)
Case No. 3K0-89-210 Civil
AFFIDAVIT OF LINDA FREED
STATE OF ALASKA )
ss.
THIRD JUDICIAL DISTRICT )
Linda Freed, being first duly sworn on oath, deposes and
states as follows:
1. I am the Director of the Community Development
Department of the Kodiak Island Borough. The facts stated in this
affidavit are based upon my personal knowledge and the records of
the Community Development Department.
2. I am personally familiar with the property described
in the complaint commonly referred to as 219 Mill Bay Road, and
more particularly described as:
Lot Six (6), Block Eight (8y, Kodiak Townsite
according to the plat of U.S. Survey 2537(b)
located in the Kodiak Recording District, Third
Judicial District, State of Alaska.
JAMIN, EDELL,
BOLGER & GENTRY
A PROFESSIONAL
CORPORATION
ATTORNEYS AT LAW
1I9 FIRST AVE. SOUTH
SUITE 320
MAYNARD BUILDING
SEATTLE. WA 98104
(209) 522-7634
JAMIN. EBELL.
BOLGER & GENTRY
A PROFESSIONAL
CORPORATION
ATTORNEYS AT LAW
R9 FIRST AVE. SOUTH
SUITE 320
MAYNARD BUILDING
SEATTLE. WA 98104
(206} 622.7034
The official zoning map of the Kodiak Island Borough indicates
that this property is within the R-3 multi -family residential
zoning district.
3. I am ultimately responsible for the maintenance and
custody of the documents which are filed and recorded in the
offices of the Community Development Department of the Kodiak
Island Borough. Each of the attached documents designated as
Exhibits A - H and J - L is a true and correct copy of the records
of the Community Development Department. Each of the attached
exhibits is a report or record of acts, events, conditions, or
opinions which was made at or near the time by or from information
transmitted by a person with knowledge acquired of a regularly
conducted business of the Community Development1Department. It is
a regular practice of the Community Development Department to make
and keep each of the enclosed records and reports.
4. Each of the attached documents designated as
k -(t i 3 -tee.
Exhibits - A are records, reports, or statements of the
Community Development Department setting forth, the regularly
conducted and regularly recorded activities of that department or
matters observed pursuant to duty imposed by law and as to which
there was a duty to report or factual findings resulting from an
investigation made pursuant to authority granted by law. Each of
these documents is authorized by law to be recorded or filed and
actually recorded or filed in the offices of the Community
Development Department.
5. Exhibit A is a copy of the variance application
AFFIDAVIT OF LINDA FREED - 2
JAMIN. EBELL.
BOLGER6 GENTRY
A PROFESSIONAL
CORPORATION
ATTORNEYS AT LAW
119 FIRST AVE. SOUTH
SURE 320
MAYNARD BUILDING
SEATTLE. WA 99104
(206) 622-7634
submitted by Toby Cook on behalf of Joel Davis for the property
described above.
6. Exhibit B is a letter from Joel Davis authorizing
Toby Cook to act as his agent concerning the variance request.
7. Exhibit C is an as built survey parking plan
submitted by Kurt M. LeDoux and LeDoux & LeDoux in support of the
variance application. The as built survey' and parking plan
submitted by Kurt M. LeDoux and LeDoux and LeDoux shows an area
for the first floor office portion of the residence of 1799.08
square feet. The provisions of the Kodiak Island Borough Code
require one parking space for each 300 square feet. It is my
opinion therefore that six parking spaces are required for the
first floor office portion of the structure and 'that two spaces
are required for the second floor dwelling portion of the
structure making a total requirement of eight parking spaces.
8. Exhibit D is a copy of the public hearing notice
and the response by Mike Hendel, p/o/a Tim Bendel; received by my
department on November 3, 1987.
9. Exhibit E is a copy of the letter to my department
from Kurt LeDoux concerning the parking lot received on October
22, 1987.
10. Exhibit F is a copy of the memorandum to the
Planning and Zoning Commission containing the staff report from
Robert Pederson of my department recommending the grant of the
variance request with the attached parking plan, which had been
submitted by Mr. LeDoux.
AFFIDAVIT OF LINDA FREED - 3
JAMIN, EBELL,
BOLGER & GENTRY
A PROFESSIONAL
CORPORATION
ATTORNEYS AT LAW
49 FIRST AVE. SOUTH
SURE 320
MAYNARD 6UILDING
SEATTLE. WA 9E004
(206 622.7634
11. Exhibit G is a copy of a portion of the minutes of
the Planning and Zoning Commission meeting dated November 16, 1987
at which the variance request was considered.
12. Exhibit H is a copy of the letter from Robert
Pederson of my department to Toby Cook dated. November 19, 1987
conveying the decision of the Planning and Zoning Commission with
a copy of the letter to Kurt LeDoux. The records of the Community
Development Department indicate that no appeal was filed from the
Planning and Zoning Commission decision.
13. Exhibit J is a copy of the letter dated January 19,
1988 from Robert Pederson of my department to Kurt LeDoux with
attached return receipt warning Mr. LeDoux that enforcement action
may be initiated.
14. Exhibit K is a copy of the zoning compliance permit
issued by Gordon Gould of my department on February 24, 1988 upon
the certification by Kurt M. LeDoux that he would comply with the
zoning requirements listed.
15. Exhibit L is a copy of the letter of October 27,
1988 from Bob Scholze of my department to Kurt LeDoux containing
an administrative decision requiring Mr. LeDoux to install the
parking lot as indicated in the parking plan on file. The records
of the Community Development Department indicate that no appeal
was taken from this administrative decision.
16. During January 1989 Kurt LeDoux came to my office and
talked with me concerning the construction of the parking lot. He
stated that he couldn't, finish the lot by the end of the month and
AFFIDAVIT OF LINDA FREED - 4
JAMIN. EDELL,
BOLGER 6 GENTRY
A PROFESSIONAL
CORPORATION
ATTORNEYS AT LAW
09 FIRST AVE. SOUTH
SUITE 320
MAYNARD BUILDING
SEATTLE. WA 92304
{206) 022-7634
requested an extension of
had not complied with the
had not started work on
action had been initiated.
time. I stated to Mr., LeDoux that he
administrative decision because he
r \
the parking lot and that enforcement
SUBSCRIBED AND SWORN TO Before me this 1.8 - day of
JaAMQ •
4095\87P.012
, 1989, at Kodiak, Alaska.
AFFIDAVIT OF LINDA FREED - 5
Notary
My Commiss
n;;and,for"Alaska
on expiteg51
eV
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:,uulni: ISLA;;D aUROUGil
POST OFFICE SOX 1246
KODIAK, ALASKA 99615
Conditional Use Permit
Exception
Variance
( ) Zoning Change: From:
CODE SECTION INVOLVED: fl - "'ip b?Q
To:
NOTE: The application fee for all items covered by this form i
Conditional Use Permits, Exceptions, and Variance Applications al
the submission of a site plan.
APPLICANT:, Jot LJA!//•.S
Name
...78..2e3,/t a�
Address
6/247;s14141 02 7t.
City, State,'Zip
PROPERTY: 6 B C?
'Lot
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United States Survey
PRESENT USE OF PROPERTY: /`2/4Z •
Section, Township, Range, S.M.
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PROPOSED USE OF PROPERTY: (A4 5.(-1,il
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I have been advised of the prncedurzs it:.c1ve with this request and have
received copy o the appropriate raga:at`.cns. -
11 AlF
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. Date Application ;.cc_p:ea: (a7/41 '5 ( 3Y:
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EXHIBIT A Page 2
October 14, 1987
Planning and Zoning Commission
Kodiak Island Borough
710 Upper Mill Bay Road
Kodiak, Alaska 99615
Dear Commissioners:
This letter is to inform you that I am authorizing Toby .Cook
of Island Realty to represent me as my agent in appearing
before the Commission hearing concerning the variance request
on my property located at 219 Upper Mill Bay Road, • Lots 6A, B
and C, Kodiak Townsite, Block 8. Thank you.
Sincerely,
alL4
el B. Davis
•
EXHIBIT B
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OCT ; 9 19a(
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and that the hnpmemmte shunted t nrman .ithin the pram
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that no apron/menu on property hag dj.ee.t thane end
the psmiaa in motion and that three an no mama. t-
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Dated this S{ day or %/ 19
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ROY A ECKLUND
nrpnaed Land S.ryor
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EXHIBIT C
KODIAK ISLAND BOROUGP(
COMMUNITY DEVELOPMENT DEPA1.,,,,
710 Mill Bay Road
Kodiak, Alaska 99615
ITEM n -or g
BL1C HEARING NOTICE
A public hearing will be held on Wednesday, November 18,11987. The meeting
will begin at 7:30 p.m. in the Borough Assembly Chambers,; 710 Mill:Bay Road,
Kodiak, Alaska, before the Kodiak Island Borough; Planning and Zoning
Commission, to hear comments, if any, on the following iequests
CASE 87-058. Request for a variance from Section 17,.36.030 (Nonconforming
Lots of Record) of the Borough Code to permit an "misting single-feaily
residence located on a nonconforming lot of record (substandard lot area and
width) in a R3 --Multifamily Residential Zoning District ,to be converted into a
professional office building containing a separate single-family dwelling
unit. Lots 6A, 613,, and 6C, Block 8, Kodiak Towneits; 119 Mill, Bey Road.
(Toby Cook/Joel B. Davis)
NOV 31987
mole Dom•
If you do not wish to testify verbally, you may provide your comments in the
apace below, or in a letter to the Community Development Departmentrp for to
the meeting.
You are being notified because you area property owner is the area'of the
request. If you have any questions about the request, please call us at
486-5736, entt_n-
sig1S7_, w� 7
Your Names P.OA• ttAk�l
inftt,E3- ^� Mailing Address: o{ 134 kQist&_
PILL I �
Your property description' tor .r7 S tOta. y71c7
Comm.ntet t10 oRVI`
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EXHIBIT D Page 1'
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CASE B7-058 LOTS 6A -6C BLK 8 KODIAK TOWN
219 Mill Bay Road
Toby Cook/Joel B. Davis
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EXHIBIT D Page 2
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EXHIBIT D Page
LeDOUX & LeDOUX
Attorneys at Law
202 Center St., Ste. 205
Kodiak, Alaska 99615
(907) 486-4082
October 22, 1987
Bob Peterson
Community Development
Kodiak Island Borough
Kodiak, AK 99615
Hand Delivered
Re: Variance, 219 Upper Mill Bay Road, Kodiak, Alaska
Dear Mr. Peterson:
I would like to modify my proposed variance request.
I have requested the Community Baptist Church to grant me a
parking easement. This request is being considered by the
Church.
I therefore need to go forward with the proposed parking lot
behind the house. Mr. Tom Bendel at 217. Upper; Mill Bay wants me
to build a 6 foot wooden fence from the rear of 'the house along
the property line to Harborview Apartment's fence. I have no
objections to this. I wouldrequest that the Planning and Zoning
permit my use of 219 Upper Mill Bay as a combination office and
upstairs apartment with either the parking requirements being
satisfied by the use of Community Baptist Church ,if an agreeable
arrangement can be worked out with the Church;or the use of the
backyard at 219 Upper Mill Bay Road. If the backyard is used as
a parking lot a six foot fence would be erected along the parking
lot between 217 Upper Mill Bay Road and 219 Upperl4ill Bay Road.
HEC&IVep
OCT 2 9. 1987
EXHIBIT E
Kodiak Island .Borough
MEMORANDUM
DATE: November 5, 1987
TO: Planning and Zoning Commission
FROM: Community Development Department
SUBJECT: Information for the November 18, 1987 Regular Meeting!
RE:
ITEM VI -It
CASE 87-058. Request for a variance from Section 17.36.030
(Nonconforming Lots of Record) of the Borough Codeito permit an existing
single-family residence located on a nonconforming lot of record
(substandard lot area and width) in a R3--MultifamilylResidential Zoning
District to be converted into a'profeesional office building containing
a separate single-family dwelling unit. Lots 6A,m6B, and 6C, Block 8,
Kodiak Townsite; 219 Mill Bay Road. (Toby Cook/Joel B. Davis)
Thirty-eight (38) public hearing notices were distributed ontNovember 2, 1987.
Date of site visit: October 26, 1987
1. Applicant: Toby Gook
2. Land Owner: Joel B. -Davie
3. Request:
4. Purpose:
For a variance from Section 17.36.030 (Nonconforming Lots of
Record) of the Borough Code to permit an existing
single-family residence located on a nonconforming lot of
record'(substandard lot area and width),in a R3 --Multifamily
Residential Zoning District to be converted into a
professional office building containing a separate
single-family dwelling unit.
To permit an existing Bingle -family residence located on a •
nonconforming lot of record (substandard in lot area and
width) to be converted into a professional office with a
Bingle -family dwelling unit on the second floor.
5. Existing Zoning: R3 --Multifamily Residential
6. Zoning History: The 1968 Comprehensive Plan identifies this area
as Residential -R3. No further zoning history for this
lot. The structure wee the subject' of: a 1978 violation
investigation, .variance request, appeal, and court
action.
7. Location: '
Physical: 219 Mill Bay Road
Legal: Lots 6A, 6B, and 6C, Block 8,, Kodiak Townsite
CASE 87-058
1 NOVEMBER 18, 1987 PSI
EXHIBIT F Page 1
ITEM VI -B
8. Lot Size: 6,211 square feet
9. Existing Land Use: Single-family residential
10. Surrounding Land Use and Zoning:
North: Lot 7, Block 8, Kodiak Townsite
Use: Single-family residence
Zoning: R3 --Multifamily Residential
South: Lot 5, Block 8, Kodiak Townsite
Use: Single-family residence
Zoning: R3 --Multifamily Residential
East: Lot 1, Block 17, New Kodiak
Use: Church
Zoning: R3 --Multifamily Residential
West: Lot 4A, Block 14, New Kodiak
Use: Multifamily Residential Parking Lot
Zoning: R3 --Multifamily Residential
11. Comprehensive Plan: The 1968 Comprehensive Plan depicts this area for Central
Business District.
12. Applicable Regulations: The following sections of Title 17 (Zoning)
of the Borough Code are applicable to this request:
17.36.030 Nonconforming lots of record. In any district in which
single-family dwellings are permitted, notwithstanding limitations imposed by
other provisions of this title, a single-family dwelling and customary
accessory buildings may be erected on any single lot'of record existing at
the effective date of adoption or amendment of the ordinances codified in
this title. This provision shall apply even though such lot fails to meet
the requirements for area or width or both, if the lot' conforms to the other
regulations for the district in which such lot is located. Variance of yard
requirements and of other development requirements, except as specified
above, shall be obtained only through action of the planning commission as
provided in Chapter 17.66 of this title.
If two or more lots, combinations of lots, or portions of lots with
contiguous frontage in Common ownership are of record at the time of passage
or amendment of the ordinances codified in this title, with a structure
located across the lot line or a residential structure on one lot and an
accessory building on the adjoining lot, the lands involved shall be
considered to be an undivided parcel for the purposes of this title. No
portion of said parcel shall be used or sold which does not meet the lot
width and area requirements established by this title, nor shall any division
or the parcel be made which leaves remaining any lot with width or area below
the requirements stated in this title, except to -allow the addition to
abutting land to make a standard lot, providing such sale does not thereby
create a substandard lot.
CASE 87-058
F- 2 NOVEMBER 18, 1987 P6Z
ITEM VI -B
COASTAL MANAGEMENT APPLICABLE POLICIES
Business Development
1. Natural Features
Dredge and fill, excavation, shoreline alteration and disturbance of
anadromous streams, tideflats and wetlands shall be minimized when
constructing and operating port, harbor, dock, industrial and energy
facilities - if permitted under applicable regulations;.
Consistent: Not applicable. This action does not involve the
construction or operation of the 'above referenced
industrial and energy facilities.
2. Natural Setting, Views and Access
Development shall be conducted in a manner that ,mitigates adverse
impacts upon the Kodiak Archipelago; developers shall' provide
opportunities for public access to the shoreline "and scenic views, to
the extent feasible and prudent.
Consistent: Not applicable. The subject property is not located
along the shoreline.
Dredge and Excavation Material
Dredging and filling shall be consistent with ACMP Standards 6 AAC
80.040 (Coastal Development) and 6 AAC 80.110 (Mineral' and Mining
Processing). Dredge spoil may be utilized in atioreside landfills if
permitted under. applicable regulations for thejpuipose of creating
usable waterfront land.
Consistent: Not applicable. This action does not involve dredging or
filling activities.
4. Facility Design
Developments in or•over the water, such as piers,'docks and protective
structures shall be located, designed and maintained; in a manner that
prevents adverse impacts upon water quality, fish, wildlife and
vegetative resources and minimizes interruption pf ,water circulation
patterns, coastal processes and navigation.
Consistent: Not applicable. No development in or over the water is
indluded in this proposal.
5. Buffer Zones
Buffer zones shall be established to the extent feasible and prudent,
between business areas and major public transportation routes and
CASE 87-058
F- 3 NOVEMBER 18, 1987 P&Z
ITEM VI -8
between business development and adjacent, non -industrial properties in
order to minimize conflicts between land uses.
Consistent:
Yes, provided a buffer between the parking lot and
adjoining residential uses is provided.;
6. Accessory Development
Accessory development that doesnot require' a shoreline location in
order to, carry out its support functions shall be sited away from the
shoreline whenever there is a feasible and prudent inland alternative.
this category includes parking, warehousing, open air storage, waste
storage, treatment or storm runoff control facilities or utilities.
Consistent: Yes. The proposed use does not require a shoreline
location and the proposed site is located inland.
7. Wetlands
Filling and drainage of water bodies, floodways, backshores or natural
wetlands shall be consistent with ACM? Standards ,6 AAC 80.070 (Energy
Facilities) and 6 AAC 80.130 (Habitats).
Consistent:
Not applicable. Conversion of the existing single-family
residence to an office does not involve any filling or
drainage of water bodies or wetlands.
COMMENTS:
The purpose of this request is to permit an existing single-family residence
located on a nonconforming lot of record (substandard lot area, and width) to be
converted into a professional office building. A single-family residential
dwelling unit will be located on the second floor. A variance is required because
the nonconforming chapter (17.36) of Borough Code specifies that only
single-family residences are permitted to locate on nonconforming lots of record.
This lot is substandard in area (6,211 square feet) and width,(average - 47.42
feet).
The proposed use of the ptoperty for an office and apartment requires the
provision of eight (8) off-street parking spaces, computed aspfollows:
1st floor office - 1,799.08 square feet/300 - 6 spaces
2nd floor dwelling -
2 spaces
TOTAL - 8 spaces
These spaces will be located in the rear yard and accessed by a driveway along the
right side of the structure, which is only 9.3 feet to 9.9 feet in width along the
side of the house. The proposed parking plan is attached.
CASE 87-058
F-4 NOVEMBER 18, 1987 F&Z
ITEM VI -B
It should also be noted that staff has verbally informed the, prospective purchaser
that the 9.3 foot driveway width was acceptable because the zoning ordinance and
1982 UBC do not establish a minimum driveway width. The minimum and maximum width
of curb cuts are specified in Borough Code, as are the parking apace dimensions.
Staff indicated that the proposed driveway was acceptable because (1).given the
intended use of the structure, it unlikely that two or more vehicles will be
entering or leaving the site at any time, and (2) 9.3 feet •is wide enough to
accommodate any vehicle that can be driven or trailered op the public roadways
without a special permit.
The prospective .purchaser has also indicated that the required parking spaces
could be provided across the street in the church parking lot. Utilization of the
church parking lot would require the following actions:
1. A finding from the' Commission pursuant to Section 17.57.030 (Off -Street
Parking --Location) of the Borough Code that it is'impractical to locate the
eight (8) required off-street parking spaces on Lot, 6, Block 8, Kodiak
Townsite.
2. A parking plan of the church parking lot showing all spaces and those
designated for the office and apartment uses.
3. A recorded easement on Lot 1, Block 17, New Kodiak Subdivision (church
property) 'in favor of Lots 6A through 6C, Blockt 8,, Kodiak Townsite
(office/apartment property) for the eight (8) eight by; twenty (8 x 20) foot
off-street parking spaces. The easement shall run with the land until the
use(s) of Lots 6A through 6C, Block 8, Kodiak Townsite change and/or
alternative off-street parking approved by the Planning:and Zoning Commission
is provided.
Should the church property be used
three (3) actions noted above would
compliance and a building permit for
In order for the Commission to grant
must be satisfied:
for parking, no variance is necessary. The
have to occur prior to issuance of zoning
the proposed office.
a variance, all of the, following conditions
1. Exceptional physical circumstances or conditions applicable to the property
or intended use of development, which generally do'not apply to other
properties in the same land use district.
The unique conditions applicable to the intended use of, development for this
case are the substandard lot size and substandard lot width in relationship
to the existing R3 --Multifamily Residential zoning of the lot. The lot
contains 6,211 square feet with an average width of 47.42 feet. Based on
these nonconformities,-any permitted R3 --Multifamily Residential use of the
lot other than a single-family residence, requires a. variance. The lot was
platted with a 6,270 square foot lot size and a 47.42 foot lot width in 1941
and has been zoned R3 --Multifamily Residential since at least 1966.
CASE 87-058
F-5 NOVEMBER 18, 1987 P&Z
ITEM VI -E
2. Strict application of the zoning ordinances would Iresult in practical
difficulties or unnecessary hardships.
The strict application of the zoning ordinance would only allow the structure
to be used as a single-family residence. This is anlunnecessary,hardship
when the lot is zoned R3 --Multifamily Residential, the proposed uses are
permitted in the R3—Multifamily Residential Zoning District, the use is
consistent with the comprehensive plan, and all other Title 17 requirements
such as off-street parking can be met.
3. The granting of the variance will not result in material damages or prejudice
to other properties in the vicinity nor be detrimental to the_public's
health, safety and welfare.
Granting of the variance should not result in material damage or prejudice to
other properties in the area or be detrimental to the public's health,
safety, or welfare. The surrounding area is zoned R3—Multifamily
Residential, which permits a variety of land uses, including low to high
density residential, offices, clinics, churches, schools, beauty shops,
boardinghouses, and parks and playgrounds. Current land uses nearby the lot
include single-family residences, a church, and a ;multifamily housing
development. A professional office and single-family' residence should be
compatible.with both the potential and existing uses foi the surrounding
area. However, since the office building will be ,located between two
single-family residences and utilize the back -yard for parking, a buffer
between the parking lot and adjoining properties is appropriate. A solid
fence or other buffer will reduce the potential impacts of additional noise,
lights, and traffic generated by an office use. If such a buffer is included
as a condition of approval, the proposed use should not be detrimental to
public health, safety, or welfare.
. • The granting of the variance will not be contrary to
Comprehensive Plan.
Granting of the variance will not
Comprehensive Plan which identifies
In fact, conversion of the structure
comprehensive plan than the existing
•
the objectives of
the
be contrary to the objectives of the
this area for Central Business District.
to an office is more in keeping with the
low density residential use.
5. That actions of the applicant did not cause special conditions or financial
hardship from which relief is being sought by the variance.;
In this case, actions of the applicant have not caused the conditions from
which relief is being sought by a variance. The lot was platted in 1941 and
is nonconforming with respect to current zoning regulations. The original
house was constructed prior to 1960, i
6. That the granting of the variance vi11 not permit a prohibited land use in
the district involved.
Professional offices and single-family residences are permitted land uses in
the R3 --Multifamily Residential Zoning District.
CASE 87-058 F- 6
NOVEMBER 18, 1987 P6Z
ITEM VI -B
RECOMMENDATION:
Staff finds that this request does meet all the condition's necessary for a
variance to be granted under Chapter 17.66 (Variance) of the' Borough Code.
APPROPRIATE MOTION:
Should the Commission agree with the staff recommendation, the appropriate motion,
is:
Move to grant a request for a variance from Section 17:36.030 of the Borough
Code to permit an existing single-family residence located:on a nonconforming
lot of record in a R3 --Multifamily Residential Zoning (District, Lots 6A
through 6C, Block 8, Kodiak Townsite, to be converted into a professional
office building containing a single-family residential; dwelling unit on the
second floor, subject to the condition of approval outlined in,the staff
report dated November 5, 1987 and to adopt the findings contained in the
staff report dated November 5, 1987 as "Findings of Fact" for this case.
CONDITIONS OF APPROVAL
1. A six (6) foot solid wooden fence is placed along the left side and rear
property lines of the lot prior to the issuance, of a certificate of
occupancy for office use.
•
CASE 87-058
•
F- 7 NOVEMBER 18, 1987 P&Z
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EXHIBIT F - 8
l
3. The granting of the variance will not result in material
damages or prejudice to other properties in the vicinity nor
be detrimental to the public's health, safety and welfare.
Granting of the variance should not result in material damage
or prejudice to other properties in the area and should not be
detrimental to the public's health, safety, and welfare.
Allowing the spaces to be twelve (12) feet in depth rather
than twenty (20) feet and angled to the road will enhance the
public safety. This finding is predicated on the. assumption
that the Alaska Department of Transportation and Public
Facilities will issue a driveway permit for the proposed
parking space and access design.
4. The granting of the variance will not be contrary to the
objectives of the Comprehensive Plan.
Granting of the variance will not be contrary to the
objectives of the Comprehensive Plan to the extent that the
Comprehensive Plan is valid for this property. The plan
depicts this block for public and open apace but none of the
lots are in public ownership.
5. That actions of the applicant did not cause special conditions'
or financial hardship from which relief Se being Bought by the
variance.
In'this case, action. of the applicant have not caused the
conditions from which relief is being sought by a variance.
The building was constructed in its present location prior to
the applicant'e ownership and the variance will be decided
prior to allowing the spaces to ba configured with a twelve
(12) foot depth.
6. That the granting of the variance will not permit a prohibited
land use in the district involved.
The clinic is a permitted land use on this specific lot in a
R1--Single-Family Residential Zoning District by virtue of an
exception granted in 1975. �•
B) CASE 87-058.. Request for a variance from Section 17.36.030
(Nonconforming Lots of Record) of the Borough Code to permit an
existing single-family residence located on a nonconforming lot of
record (substandard lot area and width) in a R3 --Multifamily
Residential Zoning District to be converted into a professional
office building containing a separate single-family dwelling unit.
Lots 6A, 6B, and 6C, Block 8, Kodiak Tovnsite; 219 Hill Bay Road.
(Toby Cook/Joel B. Davis)
COMMISSIONER MENDEL requested to be excused due to a conflict of
interest. COMMISSIONER HEINRICHS excused COMMISSIONER MENDEL.
BOB PEDERSON indicated' 38 public hearing notices were mailed for
this case and 2 were returned, both were in favor - one of the
responders requested a condition of approval for a six foot solid
fence. Secondly, s petition was circulated amongst the neighbors
and a copy of that petition was included in the packet. Staff
recommended approval of this request, subject to the condition of
approval outlined in the staff report.
Regular Session Closed.
Public Nearing Opened:
TOBY COOK, agent for tbs Davies, appeared before the Commiesipe
and expressed support for this request. Mr. Cook also stated that
if the Commission did grant ths variance, a reasonable amount of
time needed to be allotted for the fence to be built.
A discussion ensued amongst the Commissioners and Mr. Cook
regarding the signatures on the petition.
Planning 6 Zoning Commission 3 November 18, 1987 Minutes
EXHIBIT G Page 1
TOM HENDEL." 217 Hill Bay Road, appeared before the Commission and
expressed non -objection to this request, further stating that the
only concern is that a solid fence be provided prior to issuance of
e certificate of occupancy. Mr. Hendel also noted the narrow width
of the access to the property.
A discussion ensued amongst the Commissioners and Hr. Hendel
concerning the length of time for construction of the fence and the
practical use of the access driveway.
TOBY COOK reappeared before the Commission and discussed the access
to the property and identified that 'the parking alternative of
using the church property vas not possible.
A discussion ensued amongst the Commissioners and Mr. Cook
concerning the fence and practical use of the access driveway.
TOM HENDEL reappeared before the Commission and discussed the fence
and the access.
Public Hearing Closed.
Regular Session Opened.
COMMISSIONER ANDERSON MOVED TO GRANT a request for a variance from
Section 17.36.030 of the Borough Coda to permit an existing
single-family residence located on a nonconforming lot of record in
a R3-4Wltifamily Residential Zoning District, Lots 6A through 6C,
Block 8, Kodiak Townaite, to be converted into a professional
office building containing a single-family residential duelling
unit on the second floor, subject to the condition of approval
outlined in the staff report dated November 5, 1987 and to adopt
the findings contained in the staff report dated November 5, 1987
as "Findings of Fact" for this case, changing the condition If
approval to read, "A six .(6) foot solid wooden fence is placed
along the left side property line of the lot prior to the issuance
of a certificate of occupancy for office use." The motion was
seconded.
A discussion ensued amongst the Commisaionera and Community
Development Department staff regarding the condition of approval.
As a result. Mr. Anderson accepted the following wording of the
condition of approval as a friendly amendment to his motion, "A six
(6) foot solid wooden fence is placed along the left side property
line of the lot prior to tha issuance of zoning compliance or a
certificate of occupancy for office use." The second concurred.
The question was called and the motion CARRIED by majority roll
call vote. Commissioner Heinrichs voted "i7,371 ---
CONDITION OF APPROVAL
1. A six (6) foot solid wooden fence is placed along the left
aids property line of the lot prior to the issuance of zoning
compliance or a certificate of occupancy for office use.
FINDINGS OF FACT
1. Exceptional physical circumstances or conditions applicable to
the property or intended use of development, which generally
do not apply to other properties in the same land use
district.
The unique conditions applicable to the intended uas of
development for this use ars the substandard lot size,and
substandard lot width in relationuhip to the existing
R3 --Multifamily Residential zoning of the lot. The lot
contains 6,211 equates feat with en average width of 41.42
feet. Based on these nonconformities, any permitted
R3—Multifamily Residential cess of the lot other than a
single-family residence, requires a variance. The lot was
platted with ■ 6,270 square foot lot size and a 47.42 foot lot
width in 1941 and has been zoned R3—Multifamily Residential
since at least 1966.
Planning 6 Zoning Commission 4
EXHIBIT G Page 2
November 18, 1987 Minutes
2. Strict application of the zoning ordinances would result in
practical difficulties or unnecessary hardships.
The strict application of the zoning ordinance would only
allow the structure to be used as a single-family residence.
This is an unnecessary hardship when the lot is zoned
R3 --Multifamily Residential, the proposed uses are permitted
in the R3 --Multifamily Residential Zoning District, the use is
consistent with the comprehensive plan, and all ocher Title 17
requirements such as off-street parking can be met.
3. The granting of the variance will not result in material
damages or prejudice to other properties in the vicinity nor
be detrimental to the public's health, safety and welfare.
Granting of the variance should not result in material damage
or prejudice to other properties in the area or be detrimental
to the public's health, safety, or welfare. The surrounding
area is zoned R3 --Multifamily Residential, which permits a
variety of land uses, including low to high density
residential, offices, clinics, churches, schools, beauty
shops. boardinghouses. and parks and playgrounds. Current
land uses nearby the Inc include single-family residences, a,
church, and a multifamily housing development. A professional
office and single-family residence should be compatible with
both the potential and existing uses for the surrounding area.
However, since the office building will be located between two
single-family residences and utilize the back yard for
parking. a buffer between the ,parking lot and adjoining
properties is appropriate. A solid fence or other buffer will
reduce the potential impacts of additional noise, lights, and
traffic generated by an office use. If such a buffer is
included as a condition of approval, the proposed qse should
not be detrimental to public health, safety, or welfare.
4. The granting of the variance will not be contrary to the
objectives of the Comprehensive Plan.
Granting of the variance will not be contrary to the
objectives of the Comprehensive Plan which 'identifies this
area for Central Business District. In fact, conversion of
the structure to an office is more in keeping with the
comprehensive plan than tha existing low density residential
U88.
That actions of the applicant did not cause special conditions
. or financial hardship from which relief to being sought by the
variance.
In this case, actions of the applicant have not caused the
conditions from which relief is being sought by a variance.
The lot vas platted in 1941 and is nonconforming with respect
to current zoning regulations. The original house was
conatructad prior to 1960.
6. Thdt the granting of the variance will not permit a prohibited
land use in the district involved.
Professional offices and single-family residences ars
permitted land uses in the R3 --Multifamily Residential Zoning
District. ...
COMMISSIONER BENDEL recurred to the Planning and Zoning Commission.
C) CASE 87-059. Request for • variance from Section 17.18.050 (Yards)
of the Borough Code to permit • twenty by twenty-four (20 x 24)
foot gangs addition onta'the front of the existing single-family
residence to encroach 20.1 feet Into the required twenty-five (25)
foot front yard mechanic in the RI--Single-Family Residential Zoning
District, Lot 188, U.S. Survey 3099; 2490 Spruce Cape Road. (John
J. Karakul)
Planning 6 Zoning Commission
EXHIBIT G Page 3
5 November 18, 1987 Minutes
Toby Cook
Island Realty
Box 3092
Kodiak Island Borough
710 MILL BAY ROAD
KODIAK, ALASKA 99615/63/0
PHONE (907) 156.5736
November 19, 1987
Kodiak, Alaska 99615 j
RE: CASE 87-058. Request for a variance from Section 17.36.1030 (Nonconforming
Lots of Record) of the Borough Code to permit an existing single-family
residence located on a nonconforming lot of record (substandard lot area and
width) in a R3 --Multifamily Residential Zoning District to; be converted into
a professional office building containing a separate Single-family dwelling
unit. Lots 6A, 6B, and 6C, Block 8, Kodiak Townsite; 219 Mill Bay Road.
(Toby Cook%Joel B. Davis)
Dear Mr. Cook:
.,.
The Kodiak Island Borough Planning and Zoning Commission'at' their meeting on
November 18, 1987, ;iranted your request for the variance cited above, subject to
the following condition of approval:
1:- A six (6) foot solid wooden fence is placed along the left side property line
of the lot prior to the issuance of zoning compliance or a certificate of
occupancy for office use.
The Commisaion also adopted the following findings of fac€ in
decision:
support of their
1. Exceptional physical circumstances or conditions applicable
or intended use of development, which generally do not
properties in the same land use district.
The unique conditions applicable to the intended use of development for this
case ere the substandard lot size and substandard lot width in relationship
to the existing R3 --Multifamily Residential zoning of the lot. The lot
contains 6,211 square -feet with an average width of 47.42 feet. Based on
these nonconformities, any permitted R3 --Multifamily Residential use of the
lot other than a single-family residence, requires a variance. The lot was
platted with a 6,270 square foot lot size and a 47.42 foot lot width in 1941
and has been zoned R3 --Multifamily Residential since at (least 1966.
EXHIBIT H Page 1
to the property
apply to other
Kodiak Island Borough
Toby Cook
November 19, 1987
Page Two
2. Strict application of the zoning ordinances would' result in practical
difficulties of unnecessary hardships.
The strict application of the zoning ordinance would only allow the' structure
to be used as a single-family residence. This is an unnecessary hardship
when the lot is zoned R3—Multifamily Residential, the proposed uses are
permitted in' the R3 --Multifamily Residential Zoning ;District, theuse is
consistent with the comprehensive plan, and all other ,Title 17 requirements
such as off-street parking can be met.
3. The granting of the variance will not result in material damages or prejudice
to other properties in the vicinity nor be detrimental to the public's
health, safety and welfare.
•
Granting of the variance should not result in material damage or prejudice to
other properties in the area or be detrimental to the' public's health,
safety, or welfare. The surrounding area is zoned R3 --Multifamily
Residential, which permits a variety of land uses, including low to high
density residential, offices, clinics, churches, schools, beauty shops,
boardinghouses, and parks and playgrounds. Current land uses nearby the lot
include single-family residences, a church, and multifamily housing
development. A professional office and single-family residence should be
compatible with both the potential and existing uses' for the surrounding
area. However, since the office building will be located between two
single-family residences and utilize the back yard for parking, a buffer
between the parking lot and •adjoining properties is appropriate. A solid
fence or other buffer will reduce the potential impacts of, additional noise,
lights, and traffic generated by an dffice use.. If such a buffer is included
as a condition of approval, the proposed use should not be detrimental to
public health, safety, ar welfare.
4. The granting of the variance will not be contrary to the objectives of the
Comprehensive Plan.
Granting of the variance will not be contrary to the objectives of the
Comprehensive Plan which identifies this area for Central Business District.
In fact, conversion of -the structure to an office is more in keeping with the
comprehensive plan than the existing low density residential use.
EXHIBIT H Page 2
Kodiak Island .borough
Toby Cook
November 19, 1987
Page Three
5. That actions of the applicant did not cause special conditions or financial
hardship from which relief is being sought by the variance.
In this case, actions of the applicant have not caused the conditions from
which relief is being Bought by a variance. The lot vas platted in 1941 and
is nonconforming with respect to current zoning regulations. The original
house was constructed prior to 1960.
6. That the granting of the variance will not permit a prohibited land use in
the district involved.
Professional offices and single-family residences are permitted land uses in
the R3 --Multifamily Residential Zoning District.
THIS APPROVAL DOES NOT ALLOW ANY CONSTRUCTION TO BEGIN. You must first obtain
zoning compliance and/or ,a building permit. Please contact this office for
further details.
An appeal of this decision may be initiated by any person or party'aggrieved by
filing a written notice of appeal with the City Clerk within, ten days of the date
of the Commission's decision. The notice of appeal must state the specific
grounds for the appeal. Therefore, the Commission's decision:will not be final
and effective until ten days following the decision.
Failure to utilize this variance within 12 months after its effective date shall
cause its cancellation. Please bring this letter with you when you come to our
office to obtain zoning compliance for any construction on your lot.
If you have any questions about the action of the Commission,:please contact me.
Sincerely
Robeft H. P 1ersdn, AICP, Associate Planner
Community Development Department
cc: Kurt LeDoux
EXHIBIT H Page 3
13:01\
attetraseents
Ike Oramtors JU=1. Walt also appwrif of saeord as Coal(
B. DAVIS sad cum DAVIS. for sad in consideration of
dollars and other pod and valuable oo:uidsratioa in,band
paid conveys and warrants to SUET N. L=OOUK and mans=
L=000X, husband and wife. vboss,addrsss is 219 Dpper'Pill
=ay. Kodiak, Alaska 99615, the following described reel
property situated in the Kodiak Mcordinq District, Third
Judicial District, state of Alaska( to wits
PARCEL 91, That portion of Lox Six 16). Block Eight (S):
RodesTac—Townsite, according to the Plet of United State:
Survey Number 25378, located in the Kodiak Recording District.
Third Judicial District, Stats of Alaska. more particularly
described as follows,
Beginning at the Southerlyeost corner of Lot Six (6)p)TEENCE
1145°25'W, a distance of 46.70 fest; THENCE continuing1I14525'N,
a distance of 37.37 fest to a point; THENCE N47'lB'E,'a
distance of 47.37 feat to a point on the Northeasterly boundary
of said Lot Six (6); THENCE S44'34'R, a distance of 36.071,
feet; THENCE continuingS44°34'3, a distance of 39.74 feet'
to the coat Easterly corner of said Lot Six (6); THENCE ;
1831°30'W, a distance of 3.00 feet; THENCE S36'36'W, a,distancs
j of 43.66 feet to the Point of Beginning.
PARCEL 42: That portion of•Lot Six (6), Block Eight (9),
' Kodiak Townsite, according to the Plat of United States t
Survey Number 25378, located in the Kodiak Recording District,
Third•Judicial District. State of Alaska, more particularly
described as follow;
Beginning at the Nortberlysost corner of said Lot Six (6):
THENCE 542'15'11, a distance of 48.12 feet; THENCE S45'25'!,
a distance of 49.40 feet; THENCE R47'48'B, a distance of a
47.37 feet, THENCE 1144'34'W, a distance of 54.03 feet to \,
the Point of Beginning.
Subject to easements, restrictions, and reservations of
record.
DATED: itketialaVsi 1p M
QA!!O=3:
R. gaCo, t �
CAROL DAVIS
B. DAVIS
State of Oregon
)
las.
)
on this J day of 4,1.tt.&G(, 1987, before me
the undera gned, a Notary Public in and for the State of
CARA . WALH
N07X't v___C-OR
Page One of Two
EXHIBIT I Page 1
f
'14.4s27•'. • 4,,,!:??1;41-11f••
=•;-„,
Oregon. dulyterwissioned and Sarno perscoatlivappearede
JOXL S. DAVIS and CAROL DAVIS known to es and to as known -1
to be the identical individuals named in and who 'agape
and delivered the farm/May instrument freely and voluntsriii-A',•:,
as their act and deed for the uses and purposes thersin.,..„„..., YAH.
mentions& .• . . . ;
mantas WY hand and official seal heist* effixed the day
• •
and year in this certificate above written.
f1.
VLECORIR044bee
Itunlik RECORDING;
MISTfaCy
teII le art
p
4
tio••••/ :' 1: .11. AlltScre°
•
EXHIBIT I Page 2
Page Two of Two
United States of America
State of Alaska
as
THIS IS TO CERTIFY that the foreg3ing ts a full, true and detract
copy of a cipv n the original as the same appears In the records
and files of my once:,
IN WITN; S Wie :EJF, 1 hays h� •rean�to SU my hand and have
/4"'4'44-^ Alaska. this ___ tQ
affixed my )IfIciai
EXHIBIT I Page 3
Kodiak Island Borough
Certified Mail - Return Receipt Requested
Kurt LeDoux
LeDoux and LeDoux
202 Center Street #205
Kodiak, Alaska 99615
710 MILL BAY ROAD,
KODIAK, ALASKA 99615.6340
PHONE (907) 486-5736
1 •
Re: Planning and Zoning Commission Case 87-058
January 19, 1988 •
Dear Mr. LeDoux:
It has come to the attention of the Community Development; Department that your
firm has recently relocated to your new office at 219 Mill Bay Road (Lots 6A
through 6C, Block 8, Kodiak Townsite). We learned of this move from your
newspaper advertisements and the Business Briefs column :in.the Kodiak Daily
Mirror.
i
As you are aware, the Kodiak Island Borough Planning and Zoning Commission granted
a variance on November 18, 1987, to convert the existing single-family residence
at 219 Mill Bay Road into a professional office building containing a separate
single-family dwelling on the second floor. And as you are also aware from
several of our conversations, that use and occupancy of the: structure for an
office requires zoning compliance from the Kodiak Island Borough and a building
permit from the City of Kodiak. We have also noted that a fence has been
constructed without first obtaining zoning compliance. The mere granting of a
variance does not absolve you from the responsibility of obtaining all other
required permits. Therefore, your use and occupancy of the structure located at
219 Mill Bay Road for an office is in violation of the following provisions of
Kodiak Inland Borough Code Title 17:
1.
2.
3.
4.
5.
17.03.020
17.03.060
17.57.010
17.57.030
17.57.040
Conformity with regulations required.
Zoning compliance.
Off-street parking required --In general.'
Off-street parking --Location. -•
Parking area development standards.
In order to avoid enforcement action, please contact this office within ten (10)
days of receipt of this letter to obtain the required zoning compliance and
building permits, which will bring your use of the structure'at 219 Mill Bay Road
EXHIBIT J Page 1
KodL ..1siand Borough
Kurt LeDoux
LeDoux and LeDoux
January 19, 1988
Page Two
for an office into conformance with all provisions of the Borough', Code. If you
fail to respond, this matter will be referred for further enforcement action.
Your prompt attention to this matter will be appreciated.
Sincerely,
Rob arti.'Pe son, AICP, Associate Planner
Community Development Department
cc: Planning and Zoning Commission
John Sullivan, City Building Official
Gordon Gould, Community Development Department
•
•
EXHIBIT J Page 2
tenon tour *treetop hermit
Pink copy: Applicant
ZONING COMPLIANCE PERMIT
1. PROPERTY OWNER/APPLICANT
CammunNy Development DapMInNnl
110 M/1 M Road, Room 761
Kodiak, Alaska //615
(107 )414/.5744 Eat 258
his/tr/A—
C88-off¢
Zoning Coraptlwrae F. FTt l 44-
�vL
Name
Address
if Mrfl Rev,
2. LEGAL DESCRIPTION OF PROPERTY
Telephone: LtF‘ (7iQ
Sheet Addast: A 19 t I / (? (4@L
Minimum lot width. f 1 ,y Z�^"
Average lot depth: Average lot width:
Lot depth to width ratio:
Lot blocs. wadi:nlon: `A R g (.G
IQ Lk S(
/ %
�idG.fl.
1 OWni1 /i,
Survet. Whir le.g. lawman 1pgmga):
Number end size of parking spates required i
- 4 X a%. v set -u-% `VAL- .T7,3 5
O(bmreel loading requirement. —
Ta. cone a: 9, ie 4 o o cto n ra I=
Pict related requirementIS,gxG a rin.1
4 q>a , t. A. kr 7.. h -,...:1 -
42-4,4,,,
3. DESCRIPTION Of EXISTING PROPERTY
Zoning: V"1 Square footage of rot: G;(I (
Minimum lot width. f 1 ,y Z�^"
Average lot depth: Average lot width:
Lot depth to width ratio:
Use and size of existing buildings on the lot. S Q `p .
Maximum projectionlsl iota required yards.
.,.
Maximum building height. "xy"'
4. DESCRIPTION OF PROPOSED ACTION (lath ally plan)
5.`YONING REQUIREMENTS POR NEW CONSTRUCTION
WCA jt
SYPe'ol StNtiura{a) H!
,..,//
Minimum Set ca443 t_Front:a r1-40--,Z____%c Pam 4 )j LG.p—V--
Sides. Additional Setbacks
Maximum projectionlsl iota required yards.
.,.
Maximum building height. "xy"'
Maximum lot coverage
Number end size of parking spates required i
- 4 X a%. v set -u-% `VAL- .T7,3 5
O(bmreel loading requirement. —
Pict related requirementIS,gxG a rin.1
4 q>a , t. A. kr 7.. h -,...:1 -
42-4,4,,,
Other (e.g. zero ot line) k - 0
1
6. CONSISTENCY WITH COASTAL MANAGEMENT PROGRAM
e
Applicable pollcba: 9.g S\3+a`v� 4 t U- I (.- 1 1 C 1 t
Proposed action consistent with Borough Coastal Management Program
Proposed action conflicts with policies (note policy and describe eonflitt):
No
1y}
Conditions attached to Consielency approval to mitigate conflicts noted above:tj
* _ g
S. SUPPORT DOCUMENTS ATTACHED
Site Plan:
S. BOROUGHSfrNiAFTjAP fROVAL
Other:
Stift Approval.
Signed
Teva
Build.ng permit
EXHIBIT c$
Kodiak Island Borough
710 MILL BAY ROAD
KODIAK, ALASKA 99615-6340
PHONE (907) 486-5736
Certified Mail - Return Receipt Requested
Kurt LeDoux
LeDoux and LeDoux
219 Upper Mill Bay Road
Kodiak, Alaska 99615
October 27, 1988
Re: CASE 87-058. Request for a variance from Section 17.36.030
(Nonconforming Lots of Record) of the Borough Code to permit
an existing single-family residence located on a
nonconforming lot of record (substandard lot area and width)
in a R3 --Multifamily Residential Zoning District to be
converted into a professional office building containing a
separate single-family dwelling unit. Lots 6A, 6B, and 6C,
Block 8, Kodiak Townsite; 219 Mill Bay Road.
Dear Mr. LeDoux:
Based on our telephone conversations of October 17 and 25, 1988„
the following administrative decision has beep.made.to bring the
above referenced property into compliance with the Kodiak Island
Borough Zoning Code and the conditions upon which the Planning
and Zoning Commission granted the variance request referenced
above:
A parking lot providing eight (B) parking spaces and
bumperguards will be installed to the rear'of the property
behind the building as indicated in the parking plan on
file. Construction on the parking lot will begin within
thirty (30) days and be completed within ninety (90) days of
your receipt of this letter.
I hope that this decision accurately reflects our conversations
and my indication as to the course which must logically be
followed to ensure compliance. The time period seems reasonable
considering your stated intention when you applied, -after the
building had already been occupied, for a zoning compliance
permit in February of 1988 to have the parking lot completed and
bumper guards installed by October 18, 1988.
EXHIBIT L Page 1
Kodiak Island Borough
Certified Mail - Return Receipt Requested
Kurt LeDoux
LeDoux and LeDoux
October 27, 1988
Page Two
This decision is final unless appealed to the Planning and Zoning
Commission within ten (10) days of receipt of this notice. An
appeal is commenced by filing with this office a written notice
of appeal, specifically stating the reason for the appeal and the
relief sought. An appeal under Section 17.68.020(B) of the
Borough Code may be brought ,by any person aggrieved by the
decision.
Major department personnel transitions over the summer have
extended the usual thirty (30) day compliance period into a
compliance period, in this case, of some eight months. I am
sorry for the delay, but perhaps it gave you more time to
consider options and explore possible alternatives.
You also indicated in a phone conversation that the building is
now being used exclusively as an office building and no longer as
a residence. Please be advised that this requires the; issuance
of a building permit and change of occupancy. City, building
inspector John Sullivan (486-3224) can further clarify these
requirements for you.
Failure to comply with the terms of the decision or to appeal the
decision subjects you to the penalties of Section 17.75 of the
Kodiak Island Borough Code which may result in suspension or
revocation of the variance [17.75.010(4)] and/or civil action
(17.75.030(B)3.
Thank you for your cooperation. If you have any questions,
please contact me at 486-5736, extension 254.
Sirlcer
Bob Scholz el Associate Planner --Enforcement
Community Development Department
cc: John Sullivan, Building Inspector
Planning and Zoning Commission
EXHIBIT L Page 2 1
.IAMIN. EBELL,
HOLGER & GENTRY
A PROFESSIONAL
CORPORATION
ATTORNEYS AT LAW
19 FIRST AVE. SOUTH
SUITE 320
MAYNARO BUILDING
SEATTLE. WA 98109
(Roe) 622-5639
IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
THIRD JUDICIAL DISTRICT
AT KODIAK
KODIAK ISLAND BOROUGH, )
)
Plaintiff, )
)
vs. )
)
KURT M. LEDOUX and )
GABRIELLE R. LEDOUX )
)
)
Defendants. )
)
)
Case No. 3K0-89-210 Civil
AFFIDAVIT OF GORDON GOULD
STATE OF ALASKA )
) ss.
THIRD JUDICIAL DISTRICT )
Gordon Gould, being first duly sworn ori oath, deposes and
states as follows:
1. I am presently employed as the City,Manager for the
City of Kodiak. During February of 1988 I was employed as a
zoning enforcement officer for the Community Development
Department of the Kodiak Island Borough.
2. I was assigned to follow up on the letter of January
19, 1988 attached to the Affidavit of Linda Freed as Exhibit J,
which required Mr. LeDoux to contact the Community Development
Department to obtain zoning compliance and building permits to
bring his property into compliance with certain provisions of the
Code including off-street parking.
JA MIN, EBELL,
3OLGER & GENTRY
A PROFESSIONAL
CORPORATION
ATTORNEYS AT LAW
19 .IRST AVE. SOUTH
SUITE 320
MAYNARD BUILDING
SEATTLE. WA 9E1104
(206) 622.7634
3. I called Kurt LeDoux at his office on February 18,
1988 and left him a message to contact me.
4. On February 24, 1988 Kurt LeDoux came to my office.
Mr. LeDoux indicated that he would have the parking lot installed
including the bumper guards by October 18, 1988. My
understanding was that he intended to install the driveway and
parking lot immediately and to have the bumper guards in place by
October 18. I informed Mr. LeDoux that he still; needed to apply
for a building permit for the conversion of his property from a
single family residence to a professional office building.
5. During our conversation on February 24, 1988, Mr.
LeDoux at no time indicated that he was refusing to install the
parking lot. His statement to me was that he would install the
parking lot and have it completed by October 18, 1988. At the
conclusion of our conversation I filled out the zoning compliance
permit including the parking space requirement which is attached
to the Affidavit of Linda Freed as Exhibit K. Mr. LeDoux signed
the applicant certification on the permit and I. signed the Borough
staff approval on that same date.
ORDON GOULD
SUBSCRIBED AND SWORN TO Before me this rg day o
, 1989, at Kodiak„ Alaska.
4095\87P.013
AFFIDAVIT OF GORDON GOULD - 2
Notary lic in and for1 ska, �•'/VIII`\
My Commission expires': 1�tIi a
�'1�1
4-
LIAMIN. CELL.
BOLGER & GENTRY
A PROFESSIONAL
CORPORATION
ATTORNEYS AT LAW
119 FIRST AVE. SOUTH
SUITE 320
MAYNARD BUILDING
SEATTLE. WA 96104
(206( 622.7634
IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
THIRD JUDICIAL DISTRICT
AT KODIAK
KODIAK ISLAND BOROUGH,
Plaintiff,
vs.
KURT M. LEDOUX and
GABRIELLE R. LEDOUX
Defendants.
Case No. 3K0-89-210 Civil
SUMMARY JUDGMENT
The court has considered the plaintiff's motion for
summary judgment and the evidence and arguments submitted in
support and in opposition to that motion. The court finds that
Mr. and Mrs. LeDoux have purchased certain real property which is
described as:
Lot Six (6), Block Eight (8), Kodiak Townsite
according to the plat of U.S. Survey 2537(b),
located in the Kodiak Recording District, Third
Judicial District, State of Alaska.
The court finds that Mr. and Mrs. LeDoux are required to
provide eight off-street parking spaces on the property pursuant
to the provisions of KIBC 17.57.020. Mr. and Mrs. LeDoux are
barred from contesting the parking requirements because of the
numerous previous assertions made 'by themselves and their
predecessors in interest agreeing to provide the parking lot both
during and after the application for a variance to allow the use
1
JAM IN. EBELL,
BOLGER & GENTRY
A PROFESSIONAL
CORPORATION
ATTORNEYS AT LAW
I19 FIRST AVE. SOUTH
SUITE 320
MAYNARD BUILDING
SEATTLE, WA 98104
(204)622-7654
of the property as a professional
barred from re -litigating the
requirement by the doctrines of
exhaustion which apply to the
office. Mr. and Mrs. LeDoux are
question of the parking lot
res iudicata and administrative
'previous determinations of the
Planning and Zoning Commission and the Community Development
Department.
IT IS THEREFORE ORDERED AND ADJUDGED, that Mr. and Mrs.
LeDoux are required to discontinue the use of the property as a
professional office building until they construct a driveway and
eight off-street parking spaces on the property pursuant to the
provisions of the Kodiak Island Borough Code and the parking plan
they previously submitted. If the defendants do not construct the
driveway and eight off-street parking spaces within 30 days from
the date of this order, then the Kodiak Island Borough is
authorized to construct the required driveway and off-street
parking spaces on the property at the sole cost and expense of the
defendants.
DONE this day of , 1989.
ROY H. MADSEN
Superior Court Judge
4095\87P.009
SUMMARY JUDGMENT- 2
Kodiak Island Borough v. LeDoux 3K0-89-210 Civil
IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
THIRD JUDICIAL DISTRICT
AT KODIAK
KODIAK ISLAND BOROUGH,
Plaintiff,
vs.
KURT M. LEDOUX and
GABRIELLE R. LEDOUX
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No. 3K0-89-210 Civil
AFFIDAVIT OF ROBERT SCHOLZE
STATE OF ALASKA
THIRD JUDICIAL DISTRICT
Robert Scholze, being first duly sworn on oath, deposes
and states as follows:
)
ss.
)
1.
for the Kodi
iscuLpical-
from OcT ber
I have been employed as a zoning enforcement officer
Island Borough Community Development Department
x(1988 to the present.
2. I contacted Kurt LeDoux by telephone on October 17,
1988. I reminded Mr. LeDoux that according to the conditions of
the variance
Bay Road as
granted him for the use of the residence at 219 Mill
an office he was to install eight parking spaces
behind the building. I told him that when I went to check if the
JAMIN. EBELL.
BOLGER B GENTRY
A PROFESSIONAL
CORPORATION
ATTORNEYS AT LAW
119 FIRST AVE. SOUTH
SUITE 320
MAYNARD BUILDING
SEATTLE. WA 98104
(206( 622.7634
JAMIN. EBELL,
BOLGER & GENTRY
A PROFESSIONAL
CORPORATION
ATTORNEYS AT LAW
rt9 FIRST AVE. SOUTH
SUITE 320
MAYNARD BUILDING
SEATTLE, WA 9HI0<
(206) 6227634
bumper guards had been installed I couldn't even find the parking
lot.
3. Mr. LeDoux wondered if there might be some
alternative to tearing out his backyard to put in a parking lot
which he claimed there was little need for and would be little
used. I informed him that failure to follow through on the
parking plan he had submitted on file and on which conditionally
the variance was granted left him in violation and could
ultimately result in the business use of that building being
discontinued.
4. I informed Mr. LeDoux that the avenue of appeal
would be available in response to an administrative decision from
the Community Development Department which must logically require
him to install the parking lot. I indicated to him that he would
have ten days after receiving such a decision 'to,appeal and seek
relief from the Planning and Zoning Commission.
5. Mr. LeDoux also informed me that the building was
being used exclusively as an office and no longer as a residence.
I told him that if that were the case he would have to get a
building permit and change of occupancy from the building
inspector and meet the special code requirements for a commercial
building. He asked for a few days to think about what to do about
the parking and permit requirements.
6. I contacted Mr LeDoux again by telephone on October
25, 1988. Mr. LeDoux stated that he ,planned to put the parking
lot in, but was unsure about the weather. He Said that it would
AFFIDAVIT OF ROBERT SCHOLZE - 2
JAM IN, EBELL.
BOLGER & GENTRY
A PROFESSIONAL
CORPORATION
ATTORNEYS AT LAW
R9 f1RST AVE. SOUTH
SUITE 320
MAYNARD BUILDING
SEATTLE. WA 98104
(205) 622.7634
take maybe two months to put in the lot. I stated that I would
write an administrative decision he could eithericomply with or
appeal to the Planning and Zoning Commission. I indicated that in
his appeal he could indicate some time when ,the work would be
expected to be in progress if he chose that avenue.
75-
7.
y7. Following our telephone conversation on October ale,
1988, I prepared the letter which is attached to Affidavit of
Linda Freed as Exhibit L. I allowed Mr. LeDoux 30 days to begin
construction on the parking lot and required the parking lot to
be completed within 90 days of the letter.
8. I contacted Mr. LeDoux again by telephone on
November 14, 1988 to confirm his receipt of the certified letter
containing my administrative decision and his understanding of the
schedule deadline specified in that letter. He' confirmed that he
received the letter and that he understood that'. his 10 day appeal
period having passed, he must now begin work on the parking lot
installation by November 30, 1988 and complete the,work by January
30, 1989 or face further enforcement action.
9. I inspected the property located at;Lot 6, Block 8,
Kodiak Townsite, on November 28, 1988, and November 30, 1988. The
on site inspections revealed that no work had!been commenced on
the parking lot. I have inspected the property again today and
confirmed that the parking lot with eight parking spaces and
1
bumper guards and driveway as provided in Mr: LeDoux's parking
plan has not been constructed on the property.
FURTHER YOUR AFFIANT SAYETH NAUGHT.
AFFIDAVIT OF ROBERT SCHOLZE - 3
1
•
JAMIN, EBELL,
SOLGER a GENTRY
A PROFESSIONAL
CORPORATION
ATTORNEYS AT LAW
19 EIRST AVE. SOUTH
SUITE 320
MAYNARD BUILDING
SEATTLE. WA 98104
(206) 622-7634
AM
ROBERT SCHOLZ
SUBSCRIBED AND SWORN TO Before me this' 'J.% day of
\.1 r , 1989, at Kodiak„ Alaska.
Notary Public Th and f.9 2.1:3,a.ska
My Commission expires,: •,44,49ffiei E#p s:
November 13, 1989
4095\87P.014
AFFIDAVIT OF ROBERT SCHOLZE - 4
MATTHEW D. JAMIN
C. WALTER EBELL
JOEL H. BOLGER•
DIANNA R. GENTRY
ALAN L. SCHMITT
'ADMITTED TO WASHINGTON AND
ALASKA BAR
ALL OTHERS ADMITTED TO
ALASKA BAR
JAMIN, EBELL, BOLGER & GENTRY
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
119 FIRST AVENUE SOUTH
SUITE 320, MAYNARD BUILDING
SEATTLE, WASHINGTON 98104
FACSIMILE: (206) 623.7521
TELEPHONE: (206) 622-7634
Linda Freed
Community Development
Kodiak Island Borough
710 Mill Bay Road
Kodiak, Alaska 99615
REPLY TO SEATTLE OFFICE
July 10, 1989
Department
Re: Kodiak Island Borough
Gabrielle LeDoux
No. 3K0-89-210 CIV
Dear Linda:
v. Kurt LeDoux and
qc
KODIAK OFFICE
323 CAROLYN STREET
P.O. BOX4269
KODIAK, ALASKA 99615
FACSIMILE: (907) 466-6112
TELEPHONE: (907) 486-6024
Kurt LeDoux called me on the telephone on July 6. He stated
that he was leaving for vacation, but that upon'his return in
August he would make an application to the City of Kodiak to
lease certain city property across the street from his office as
parking space. I said that I would forward any proposal he had
for resolution of this matter to you. In the interim, I informed
Mr. LeDoux that I will be filing a motion for'summary judgment
and that he will be required to respond to it 'upon his return.
Feel free to call if you have any questions.
Sincerely,
1
JAMIN, EBELL, BOLGERi& GENTRY
Attorney
JHB:ss
4095\87L.008
RECEIVED
JUL 1 71989
COMMUNITY DEVELOPMENT
DEPT
MATTHEW D. JAMIN
G. WALTER EBELL
JOEL H. BOLGER*
DIANNA R. GENTRY
ALAN L SCHMRT
'ADMITTED TO WASHINGTON AND
ALASKA BAR
ALL OTHERS ADMITTED TO
ALASKA BAR
JAMIN, EBELL, BOLGER & GENTRY
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
119 FIRST AVENUE SOUTH
SUITE 320. MAYNARD BUILDING
SEATTLE. WASHINGTON 98104
FACSIMILE: (206) 6237521
TELEPHONE: (206) 6227634
REPLY TO SEATTLE OFFICE
July 10, 1989
Kurt LeDoux, Esq.
LEDOUX &-LEDOUX
219 Mill Bay Road
Kodiak, Alaska 99615
Re: Kodiak Island Borough v. LeDoux
No. 3K0-89-210 CIV
Dear Kurt:
96
KODIAK OFFICE:
323 CAROLYN STREET
P.O. BOX 4269
KODIAK. ALASKA 99615
FACSIMILE: (907) 466-6112
TELEPHONE: (957)1486-6024
This letter is to confirm that you may have an extension of
time until you return from vacation the 21st of August to
respond to thediscovery requests which we, have submitted.
Please note that my client will be forced to ;file a motion to
compel unless the responses are received by August 31, 1989. I
will most likely be filing a motion for summary judgment in the
interim, but I would be willing to agree to andextension of time
for response until you return. I have forwarded to my client the
information concerning your intention to lease the city property
across the road from your office to provide additional parking.
Please be sure to give me a call when you return.
Sincerely,
JAMIN, EBELL, BOLGER'& GENTRY
JHB:ss
cc: Linda Freed
4095\87L.009
RECEIVED
JUL 141989
COMMUNITIY DEVELOPMENT
'DEPT
Public Hearing Closed.
Regular Session Opened.
COMMISSIONER HEINRICHS MOVED TO GRANT preliminary plat
approval of the vacation of Lots 1 (part), 2, 3, and 4A, Block 2,
Southeast Addition Number 2 and replat to; Lots 2A-1, 28, and 4A-1,
Block 2, Southeast Addition Number 2, U.S. Survey 3066AB, subject to
the following conditions:
1. That a note be placed on the final plat stating:
$
'Two-way access to Lot 2A-1 is through Lot 4A-1
2. The existing KEA underground 'utilities must be identified and
included In an easement on the final plat.
The motion was seconded and CARRIED by unanimous roll call vote.
VII. OLD BUSINESS
There was no old business.
VIII. NEW BUSINESS
There was no new business.
IX. COMMUNICATIONS
COMMISSIONER KNUDSEN MOVED TO ACKNOWLEDGE RECEIPT of
items A through I- of communications. The motion was seconded and
CARRIED by unanimous voice vote. '
A) Letter dated May 18, 1989, to Scott Arndt from Dave Crowe re: Case
S-85-016.
B} Report of the Gear Storage Taskforce to the Kodiak Island Borough
Assembly, dated May 1989.
C) Letter dated June 1, 1989, to the Kodiak Island Borough Assembly and
Mayor from Tom Handel, Planning and Zoning Commission Chair, re:
Ordinance 89-18-0 Proposed Revisions, to Title 16 of the Borough
Code.
0) Letter dated June 9, 1989, to Burton and ,Anna Parker from Bob
Scholze, re: Lot 4, Block 5, Miller Pointlst Addition, 326 Neva Way,
Fishing Gear and Junk.
E) Letter dated.June,12,_1989, to Unda L F,reed from Joel H. Bolger, re:
Kodiak Island Borough v. Kurt and Gabrielle LeDouz (with
-attachments): 1 — - -.---1
F) Letter dated June 15, 1989, to Jerry M. land Dana Malone from Bob
Schulze, re: Lot 8, Block 4, Mountain View Subdivision Second
Addition, 2632 Devil's Prong, Disposal of Junk; Landfill Activity.
Pape 9 o1 11 P8Z Mnume: Juno 21, 1999
MATTHEW D. JAMIN
C. WALTER EBELL
JOEL H. BOLGER*
DIANNA R. GENTRY
ALAN L. SCHMITT
*ADMITTED TO WASHINGTON AND
ALASKA BAR
ALL OTHERS ADMITTED TO
ALASKA BAR
JAMIN, EBELL, BOLGER & GENTRY
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
119 FIRST AVENUE SOUTH
SUITE 320. MAYNARD BUILDING
SEATTLE, WASHINGTON 98104
FACSIMILE: (206) 623-7521
TELEPHONE (206) 622.7634
REPLY TO SEATTLE OFFICE
June 12, 1989
Linda Freed
Community Development Department
Kodiak Island Borough
710 Mill Bay Road
Kodiak, Alaska 99615
q -E
KODIAK OFFICE:
323 CAROLYN STREET
P.O. BOX4269
KODIAK, ALASKA 99615
FACSIMILE (907) 486.6112
TELEPHONE (907)486,6024
RECEIVED
JUN 141989
COMMUNITY DEVELOPMENT
DEPT
Re: Kodiak Island Borough v. Kurt and Gabrielle LeDoux
Our File 4095-87
Dear Linda:
Please find enclosed a copy of the complaint filed to
require Mr. and Mrs. LeDoux to discontinue the use of their
property located at Lot 6, Block ,8, Kodiak Townsite as a
professional office building until they construct eight off-
street parking spaces on the property. Also enclosed is a copy
of the defendants' Answer to the complaint and a copy of the
Interrogatories and Request for Production of Documents which I
have sent to Mr. and Mrs. LeDoux. As we discussed, I will
prepare a motion for summary judgment requesting that the court
find that there are no disputed issues of fact and that the
Borough is entitled to the relief it requests as a matter of law.
This motion will be supported by affidavits from you, Bob
Scholze, and possibly Gordon Gould concerning the verification
of the documents in the file and your previous discussions with
Mr. LeDoux.
Also, as we discussed, I will not be filing a motion for
preliminary injunction. While it appears to me that the Borough
has a clear probability of success in this matter, Mr. LeDoux
will argue strongly that the hardship of having to close his law
office would exceed the public hardship due to the parking
violation until the court has the opportunity to resolve this
matter completely. Please do not take this as an indication that
temporary emergency relief is not available for other zoning
violations; the availability of temporary injunctive relief and
the decision of whether to apply for such relief should be
reviewed on a case by case basis.
9-E
Linda Freed
June 12, 1989
Page 2
I expect to have the affidavits for the request for summary
judgment to you within the next two weeks. I will also prepare
and file a request to have the case set for trial so that the
matter can be resolved as quickly as possible Iregardless of
whether our request for summary judgment is granted. Do not
hesitate to contact me if you have any questions.
Sincerely,
JAMIN, EBELL, BOLGER & GENTRY
oel H. Bo
Attorney
JHB:ss
Enclosures
cc: Jerome Selby
4095\87L.004
.IAMIN. EDELL.
BOLGER 8 GENTRY
A PROFESSIONAL
CORPORATION
ATTORNEYS AT LAW
119 FIRST AVE. SOUTH
SUITE a20
MAYNARD BUILDING
SEATTLE. WA 95104
(206( 622O639
C
IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
THIRD JUDICIAL DISTRICT
AT KODIAK
KODIAK ISLAND BOROUGH, )
Plaintiff, )
)
VS. )
KURT M. LEDOUX and )
GABRIELLE R. LEDOUX )
Defendants. )
Case No. 3K0-88- Civil
COMPLAINT
q -E
The Kodiak Island Borough, by and through its attorneys,
JAMIN, EBELL, BOLGER & GENTRY, states it complaint against the
defendants as follows:
1. Kurt M. LeDoux and Gabrielle 'R. LeDoux are
residents of Kodiak, Alaska. Mr. and Mrs. LeDoux are the owners
of a structure and certain real property within the Kodiak Island
Borough, commonly referred to as 219 Mill Bay Road, Kodiak,
Alaska, and more particularly described as:
Lot Six (6), Block Eight (8), Kodiak Townsite,
according to the plat of U.S. Survey 2537B,
located in the Kodiak Recording District, Third
Judicial District, State of Alaska,
(hereinafter "property").
2. The Kodiak Island Borough is a municipal
corporation and a political subdivision of the State of Alaska
and is authorized to regulate land use and building construction.
.IAMIN. EBELL.
BOLGER & GENTRY
A PROFESSIONAL
CORPORATION
ATTORNEYS AT LAW
It9 fIRsT AVE. SOUTH
sunt 320
MAYNARD BUILDING
SEATTLE. WA 98104
(20/4452.2.7834
q -E
4
3. On or about October 13, 1987, Toby. Cook submitted
an application for a variance with respect to the property on
behalf of Joel Davis and Carol Davis, former owners of the
proerty. The variance application requested a change in the use
of the property from a single family residence:to a professional
office and upstairs apartment.
4. In support of the variance request, Kurt M. LeDoux
and Gabrielle LeDoux, submitted an as -built ;survey showing a
proposed driveway along the northeastern boundary of the property
with eight offstreet parking spaces to be provided along the
southeast boundary of said property.
5. The variance application was; granted by the
Planning and Zoning Commission of the Kodiak'Island Borough in
reliance upon the as -built survey and parking:plan submitted by
the defendants.
6. On or before January 19, 1988, the defendants
converted the use of the structure on said residence from a
single family residence to a professional office building.
7. The defendants are required to provide_a minimum of
eight offstreet parking spaces pursuant to the provisions of
Kodiak Island Borough Code 17.57.020. The defendants have failed
or refused to provide the required offstreet parking on the
property.
8. The Kodiak Island Borough provided notice to the
defendants to cure this violation on January 19, 1988 and October
OMPLAINT - 2
odiak Island Borough v. LeDoux
3K0-88- Civil
JAMIN, EDELL,
BOLGER & GENTRY
A PROFESSIONAL
CORPORATION
ATTORNEYS AT LAW
09 FIRST AYE. SOUTH
SUITE 320
MAYNARD SUILb;NO
SEATTLE. WA 99104
{205) 822-7834
E
27, 1988. See attached Exhibits A and B. The 'defendants have
' I
failed or refused to cure this violation.
9. Section 17.75.030 of the Kodiak Island Borough Code
provides that the Borough may bring a civil action tp enjoin any
violation of Title 17 of the Code. This section further provides
that "upon application for injunctive relief and the finding of an
existing or threatened violation, the Superior .Court shall enjoin
the violation."
WHEREFORE, the plaintiff prays for judgment against the
defendants as follows:
1. A preliminaryand permanent injunction requiring
the defendants to discontinue the use of the: property as a
professional office building until the defendants construct eight
offstreet parking spaces on the property 'pursuant to the
provisions of the Kodiak Island Borough Code; '
2. In the alternative, a preliminary] and permanent
injunction authorizing the Kodiak Island Borough to construct the
required driveway and offstreet parking spaces on the property
pursuant to the provisions of the Kodiak Island Borough Code at
the expense of the defendants; and,
3. An order awarding the plaintiff ;its reasonable
attorneys fees and costs and such further relief as the court
deems just and equitable. -
OMPLAINT - 3
todiak Island Borough v. LeDoux
3KO-88- Civil
JAMIN, EBELL.
BOLGER & GENTRY
A PROFESSIONAL
CORPORATION
ATTORNEYS AT LAW
119 FIRST AVE. SOUTH
SUITE 320
MAYNARD BUILDING
SEATTLE. WA 98104
(2001322-763d
DATED this .21day of February, 1989 at Seattle,
Washington.
By.:
4095\87P.001
ONPLAINT - 4
odiak Island Borou•h v. LeDoux
KO -88- Civil
JANIN, EBELL, BOLGER & GENTRY.
H. Bolger
Counsel for Plaintiff
LeDOUX & LeDOUX
ATTORNEYS AT LAW
219 Mill Bay Rd.
Kodiak, Alaska 99615
(907) 486-4082
COPY Reeci ED
JUN 0 5 1089
rqP.11N FOE L H. EOLGER
EOCGER & GENTRY
Attorneys for Defendants
IN THE SUPERIOR COURT FOR THE STATE OF ALAS
THIRD JUDICIAL DISTRICT AT KODIAK
KODIAK ISLAND BOROUGH )
)
Plaintiff, )
)
vs. )
)
)
)
3K0-89-210 Civil
KURT M. LeDOUX and
GABRIELLE LeDOUX,
Defendants.
DEFENDANTS' ANSWER TO COMPLAINT
COMES NOW Defendants Kurt M. LeDoux and Gabrielle LeDoux,
through their attorney, Kurt M. LeDoux of LeDoux & LeDoux, and
Defendants answer Plaintiff's complaint and' allege affirmative
defenses as follows:
1. Defendants admit the allegations contained in Paragraph
One.
2. Paragraph Two contains legal allegations which do not
require a response.
3. Defendants admit the allegations contained in Paragraph
Three.
4
4. With respect to Kurt M. LeDoux,
allegations contained in Paragraph Four
that they allege compass directions, and
Defendants
I �
except to
Defendants
allegations contained in Paragraph Four with respect to
q -E
admit the
the extent
deny the
Gabrielle LeDoux.
5. Defendants are without information or knowledge as to
the allegations contained in Paragraph Five and therefore deny
1
same.
6. With regard to Paragraph Six, Defendants admit that they
have used a portion of the structure as a law office, and deny
the remaining allegations.
7. Defendants deny the allegations contained in Paragraph
Seven.
8. Defendants admit that Kurt M. LeDoux received the
letters attached to Plaintiff's complaint and Defendants deny
that Gabrielle LeDoux received the letters attached to
Plaintiff's complaint and Defendants deny the remaining
allegations.
9. With regards to Paragraph Nine, the first sentence
contains legal allegations which do not require a response.
Defendants deny that Plaintiff has the right,to.seek the relief
requested in Paragraph Nine.
10. Defendants deny that Plaintiff is entitled to the
relief requested in Paragraph One of its prayer.
11. Defendants deny that Plaintiff is entitled to the
relief requested in Paragraph Two of its prayer.
DEFENDANTS ANSWER TO COMPLAINT; Case No. 3K0789-210 Civ; page 2
12. Defendants deny that Plaintiff is entitled to the
relief requested in Paragraph Three of its prayer.
AFFIRMATIVE DEFENSES
1. Defendants are not required to provide a parking lot
i
because the structure which is the subject'of Plaintiff's
complaint is used as a single family residericei
2. Plaintiff is guilty of laches.
3. Plaintiff has unclean hands.
4. Plaintiff and/or its agents, servants, employees, and
officials, have acted arbitrarily and capriciously in requiring
an unnecessary parking lot and/or in failing to grant Defendants
a waiver of such requirement.
5. Plaintiff is guilty of showing favoritism to certain
property owners in similar situations.
6. Plaintiff's action is brought in. bad faith.
7. Defendants have tried without success to alleviate any
required parking needs.
8. Defendants are willing and ready to cooperate with the
'
Plaintiff in curing any alleged parking problem, but Plaintiff
is not willing to cooperate with Defendants;
WHEREFORE, PREMISES CONSIDERED, Defendants pray this
Honorable Court to dismiss Plaintiff's complaint, and that
DEFENDANT'S ANSWER TO COMPLAINT; Case No. 3K0-89-210 Civ; page 3
4.
Defendants be awarded their costs and attorneys fees.
RESPECTFULLY SUBMITTED this 2/51 day of May, 1989.
1
1 eertlf' ibei se Yo
der of _Laura.. 10 tc11
served a true ana cermet
ccPy of the ahave an eael
attornae of record in
thla m31Ie i. tam ,..+.C„`Q
ledoux.3\answer
LeDOUX & LeDOUX
ATTORNEYS AT LAW
BY:
Kurt M. LeDoux, Attorney
for Defendants
DEFENDANT'S ANSWER TO COMPLAINT; Case No. 3K9-89-270 Civ; page 4
JAMIN. EDELL,
BOLGER G GENTRY
A PROFESSIONAL
CORPORATION
ATTORNEYS AT LAW
IIB FIRST AYE. SOUTH
SUITE 320
MAYNARD BUILDING
SEATTLE, WA 88104
(208) 822-9834
IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
THIRD JUDICIAL DISTRICT
AT KODIAK
KODIAK ISLAND BOROUGH,
Plaintiff
vs.
KURT M. LEDOUX and
GABRIELLE R. LEDOUX
Defendants.
Case No. 3K0-811-42/0 Civil
FIRST REOUEST FOR PRODUCTION OF DOCUMENTS
AND REOUEST FOR ENTRY UPON LAND;
TO: KURT M. LEDOUX and GABRIELLE R. LEDOUX,,
COMES NOW, the Defendant Kodiak Island Borough, by and
through their attorneys, JAMIN, EBELL, BOLGER & GENTRY, pursuant
to Rule 34 of the Alaska Rules of Civil Procedure, and requests
Defendants Kurt M. LeDoux and Gabrielle R. LeDoux,itheir attorney
and representatives, to produce and permit the following documents
to be inspected during normal business hours: Kodiak Island
Borough further requests that this inspection 'byl Kodiak Island
Borough be permitted immediately after defendants LeDouxs'
response to this request has been served, and that their attorneys
be permitted to copy from Defendants LeDouxs' records such of the
documents as they desire to copy, and that copying will be done at
1 d
Kodiak Island Borough's expense. Alternatively, plaintiffs
request that copies be made by the defendants.
JAMIN, EBELL.
BOLGER & GENTRY
• PROFESSIONAL
CORPORATION
ATTORNEYS AT LAW
119 FIRST AVE. SOUTH
SUITE 320
MAYNARD BUILDING
SEATTLE. WA 9BI04
(206) 622.7634
C
R,g
This request is intended to cover all documents in
possession of the defendants, or subject to their custody and
control, whether they are in the defendants' possession or any
I
other location maintained by defendants, their agents, attorneys,
investigators, employees, or any of them.'
1 I
This Request for Production is continuing in nature and
requires supplemental responses if defendants obtain further
information with respect to the same, between the time the
initial response to this Request for Production is served, and
the time of trial.
Kodiak Island Borough requests any and, all documents
relating to, referring to, or affecting any of the following
subject matter categories:
1. All documents which evidence, refer to, or relate to
the allegations contained in your affirmative defenses.
2. All documents which refer or relate to the purchase
1 As used in this request, the term "documents", means,
without limitation, the following items, whether printed or
recorded or reproduced by any other mechanical process, or
written, or produced by hand: agreements, contracts, newspapers,
communications, check stubs, state and federal governmental
forms, filings, returns and reports, correspondence, telegrams,
memoranda, summaries, or records of telephone ;conversations,
diaries, graphs, reports, notebooks, notes, time slips, hour
sheets, summaries of hours worked, charts, I'plans, drawings,
sketches, maps, summaries or records of meetings or conferences,
summaries or reports of investigations or negotiations, opinions
or reports of consultants, photographs, motion alpicture film,
brochures, pamphlets, letters, correspondence, computer programs,
data contained in computers, any,marginal comments appearing on
any document, all other writings, figures or symbols of any kind
and tape recordings.
REQUEST FOR PRODUCTION OF DOCUMENTS - 2
Kodiak Island Borough v. LeDoux
3K0-88- Civil
JAM IN, EBELL.
30LGER & GENTRY
A PROFESSIONAL
CORPORATION
ATTORNEYS AT LAW
119 FIRST AVE. SOUTH
SUITE 320
MAYNARD BUILDING
SEATTLE. WA 90109
)200) 622.7534
l_
614
of the real property described in the Complaint by Kurt and
Gabrielle LeDoux from Joel and Carol Davis.
3. All documents which refer or relate to the variance
application submitted -by Toby Cook on behalf of Joel Davis
referred to in paragraph 3 of the Complaint.
4. All documents which you intend to use or to
introduce as exhibits at trial.
REQUEST FOR ENTRY UPON LAND
In addition, plaintiff Kodiak Island ,Borough requests
I
that you allow an inspection of the interior ,ofthe structure
located at 219 Mill Bay Road and described in the Complaint during
normal business hours or at such other time as can be set by the
mutual agreement of the parties prior to July 20,4 1989. Plaintiff
specifically promises. not to inspect or review any business
records, client records, or any other legal or business material
which may be contained therein, the inspection being limited in
scope to achieve the purchase of verifying the present use of the
various portions of the structure. The Kodiak ;Island Borough
requests that the defendants provide a written response to this
request with a proposed date and time of the inspection as well as
any objections to the scope or methods employed.;
DATED this day of June, 1989.
at
Bv:
JAMIN, EBELL, BOLGER &I GENTRY
LH. BO
REQUEST FOR PRODUCTION OF DOCUMENTS - 3
Kodiak Island Borough v. LeDoux.
3K0-88- Civil
JAM IN, EDELL.
BOLGER & GENTRY
A PROF CSSIONAL.
CORPORATION
ATTORNEYS AT LAW
119 FIRST AVE SOUTH
SUITE 320
MAYNARD BUILDING
SEATTLE. WA 96109
(206) 622.7634
I certify that the original of
this document
was mailed on June 7 , 1989,
to:
Kurt M. LeDoux
Gabrielle R. LeDoux
219 Mill Bay Road
Kodiak, AK 99615
JAMIN, EB L, BOLGER & GENTRY
4095\87P.007
REQUEST FOR PRODUCTION OF DOCUMENTS - 4
Kodiak Island Borough v. LeDoux
3K0-88- Civil
q -E.
•
.IAMIN. EBELL.
SOLGER B GENTRY
• PROrESSIONAL
CORPORATION
ATTORNEYS AT LAW
IID FIRST AVE. SOUTH
SUITE 320
MAYNARD BUILDING
SEATTLE. WA 00104
(206) 6227034
I
IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
THIRD JUDICIAL DISTRICT
KODIAK ISLAND BOROUGH,
Plaintiff,
vs.
KURT M. LEDOUX and
GABRIELLE R. LEDOUX
Defendants.
Case No. 3K0 -8V 2/O
AT KODIAK
5_C
FIRST INTERROGATORIES TO DEFENDANTS
TO: KURT M. LEDOUX and GABRIELLE. R. LEDOUX
COMES NOW, the Defendant, Kodiak Island Borough, by and
through its attorneys, JAMIN, EBELL, BOLGER & GENTRY, and pursuant
to Alaska Civil Rule 33 submits the following interrogatories to
be answered in writing, under oath, within 30' days of service
hereon.
These interrogatories are continuing. You are requested
to provide additional information as it becomes; available. Your
responses to these interrogatories are to include all information
known to you, your employees, attorneys, agents, and
investigators.
INTERROGATORY NO. 1: With respect to the,allegations of
paragraph 6 of your Answer, please state which portion of the
structure is used as a law office, the use :of 'l the remaining
1
4
LIAMIN. EDELL,
'6OLGER & GENTRY
A PROFESSIONAL
CORPORATION
ATTORNEYS AT LAW
IID FIRST AVE. SOUTH
SURE 320
MAYNARD BUILDING
SEATTLE. WA 90)04
(20641522-7634
portion of the structure, and the
designated portion of the structure.
ANSWER:
area
and location of each
INTERROGATORY NO. 2: Please state in ;detail the facts
which support your denial of the allegation in paragraph 7 of the
a Minimum of eight
i
P
Complaint that you are required to provide
off-street parking spaces.
ANSWER:
FIRST INTERROGATORIES TO DEFENDANT - 2
yo iak Island Borough v. LeDoux
3K0-88- Civil
4
.0
JAMIN. EBELL,
BOLGER & GENTRY
A PROFESSIONAL
CORPORATION
ATTORNEYS AT LAW
119 FIRST AVE. SOUTH
SUITE 320
MAYNARD BUILDING
SEATTLE. WA 90104
(206) 622-7634
c c
INTERROGATORY NO. 3: Please state in ;detail the facts
which support each of the affirmative defenses contained in your
Answer and for each such defense:
(a) State the name, address, and telephone number of
each person who claims to have knowledge concerning those facts;
and,
(b) Identify and describe each document which contains
information referring to or relating to those facts.
ANSWER:
DATED this
day of June, 1989
JAMIN, EBELL, BOLGER & GENTRY
Attorneys for Kodiak Island Borough
el H. B 1 • er
FIRST INTERROGATORIES TO DEFENDANT - 3
Kodiak Island Boroucrh v. LeDoux
3K0-88- Civil
•
JAMIN, EDELL,
BOLGER & GENTRY
A PROft9S1PNA6
CORHOMAT ION
iATTORNEYS AT LAW
119 .IRST AVE SOUTH
sunt JRo
MAYNARD BUILDING
SEATTLE. WA9$00R910<
(206) 6227534
q -E
VERIFICATION
STATE OF ALASKA
ss.
THIRD JUDICIAL DISTRICT )
having first been sworn on
oath, deposes and states that he/she is the 'plaintiff in this
action, has read the foregoing Answers to Interrogatories, knows
the contents thereof and believes the same to be true and correct
to the best of his/her knowledge.
Plaintiff
SUBSCRIBED AND SWORN TO Before mel this day
of , 1989.
I certify that the original of
this dolemeot 9
was mailed on
1989, to:
Kurt M. LeDoux
Gabrielle R. LeDoux
219 Mill Bay Road
Kodiak, AK 99615
4095\87P.006
, Bolger & Gentry
NOTARY PUBLIC in and for Alaska.
My Commission expires:
FIRST INTERROGATORIES TO DEFENDANT - 4
Kodiak Island Borough v. LeDoux
3K0-88- Civil
Kurt LeDoux
219 Upper Mill Bay Road
Kodiak, Alaska 99615
Kodiak Island Borough
710 MILL BAY ROAD
KODIAK, ALASKA 99615-6340
PHONE (907) 486-5736
February 9, 1989
Re: Cancellation of Zoning Compliance CZ89-004 for the remodeling of a bathroom and installation of
handicap access as part of conversion to professional offices.
Dear Mr. LeDoux:
This letter is to confirm the cancellation of Zoning Compliance Permit CZ89-004 which was issued to you
In error on January 9, 1989. The reason for this cancellation was the determination by staff that the
changes requested were previously permitted by Zoning Compliance Permit, C88-024 (which was
originally Issued as a result of Case 87-058) authorizing the conversion of an existing single-family
residence to a professional office building. Since no building permit had been issued pursuant to Zoning
Compliance Permit C88-024, an additional zoning compliance permit covering only part of the conversion
was determined to be unnecessary.
Due to the issuance of two (2) separate zoning compliance permits for basically the same project, staff
has voided permit CZ89-004 which permitted only partially the required changes of the building
conversion as approved by variance. A copy of this permit (attached) will remain in the property tile,
however, the permit now refers to the previous Zoning Compliance Permit (C88-024). In addition,
because a building permit was issued based on permit CZB9-004, copies of this letter, the voided zoning
compliance permit, and the original zoning compliance have been forwarded to the Building Official for
inclusion in the building permit files.
We apologize for the delay in providing copies of these changes. Through an administrative oversight,
only recently did we realize that you had not been provided copies for your personal records. This action
will not affect the status of your current building permit issued subsequent to Zoning Compliance Permit
CZB9-004. Please contact this office if you require further clarification.
Sincerely,
4,,z
Duane Dvorak, Associate Planner
Community Development Department
cc: John Sullivan, Building Official
enc: Zoning Compliance Permits Number C88-024 and CZ89.004