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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 /llll///11111111111111\) 1 c :,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 c0/9 OPA6,c equire 5o3 6G5 -7s4 7 • Home Telephone so 7 aZS7 / a- as Work Telephone , /old . 04.41 %o 4--,.1s ere lock Subdivision Name ver ,i United States Survey PRESENT USE OF PROPERTY: /`2/4Z • Section, Township, Range, S.M. /1 ;a PROPOSED USE OF PROPERTY: (A4 5.(-1,il i £ '.9��.:cr S., C�� tiCII.l_'e.,A)R✓2'1.l',;\Jc, I have been advised of the prncedurzs it:.c1ve with this request and have received copy o the appropriate raga:at`.cns. - 11 AlF /0347 Au•.cr � Ca•/ � �CA',CA) 7 . Date Application ;.cc_p:ea: (a7/41 '5 ( 3Y: Sju /Y i C' 't(&n4 - CSL OE A Pp -,.r v 15-'4 3/s7 ized .ken EXHIBIT,A Page 1 Uh 47 /Ux_76 tireceee - 47/9°1- D4-aS 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 HECEIVEb OCT ; 9 19a( DEVELGPMhNT uEPT. Alp rek. Z 6 I -try)/ nee req 4reQ l� U/ ter 8xzo� JogrA�n SPzcec CAr •E A oa \ 9'% '(ek Afreamy 3 4 tirro „ca LL Ce O f rete / frof er7L/1 mor com4j%ld7. 7/-;‘c& a c/ Q 0 cs: i fUrf/Y,• oc Pio'iX 4C Lela AS - BUILT SURVEY I hereby anify thai 1 hare .ungrd the following drmribrd pr. ,4 Paer/oN 44 4.7-6, 6ZOOK .e;142/P0 rauNsir: sti f,FY //Sr. es37- and that the hnpmemmte shunted t nrman .ithin the pram and do not o.abp o eoe.oaeb m the propry lying adjacent that no apron/menu on property hag dj.ee.t thane end the psmiaa in motion and that three an no mama. t- om ina a ore .ilius raeornta on raid property mat a rated Irmo. Dated this S{ day or %/ 19 -11 ROY A ECKLUND nrpnaed Land S.ryor Scale:. /. ZQ' 1Dtawo 7: SE_—____. I Dam: Jri/u-/-/778 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` e4VeeS1151l �- %Imo PR- — Sham( -1-Y EBOIWICr h' Sou t Fhr1C Wmaaa.1 a -c, (Mac_ Vn e\ tc, CCtv'retrS. of -A4,e oVN_ SE (RECT., RIPS Prscr un ` Rum*. 6 e' 7 Ls -f{Arl q'9"- sUSE-F P�t�-rte- A nTe 9 aT -10 acres r vut-6 COPY 6P As - \3%LT • c1/43 -3 1toras oa 03Nes EXHIBIT D Page 1' 1 i t6 iwricci0 ZO KEY' Q . ResioomA.. • , 4 :x'3..4 �:ti. }/i`..,:>> i,1.�.''0 51:, i -�i:• � Apv 00i CASE B7-058 LOTS 6A -6C BLK 8 KODIAK TOWN 219 Mill Bay Road Toby Cook/Joel B. Davis INDUSTRIAL GONSERHATION 0 PUSUC USE LANDS Eg WATERSHED US SURVEY 444 Tr G N,LLgioE oR' 'KO N 31 N 41 KODAK N USS 444 Tr A Tr C USS 2537 K TOWNSIT EXHIBIT D Page 2 Format the ii'.OMefeb Ybee.SSaco* on with iMp.openy 1'.b E aed amasa .as Goals} or a property peeplrys *raw dei.o. that .e itNesiseb °' ea. p 1 masa demo ri .r s ee phm os : ge..e ad `8u' 6ve .e .o rosolsryo vaso Edda./ 5 .it. Era or edv Sae a sit p.opq mw a ii Gus A I# 4bar.�. a.a are ri my�`—�� 6'4 ror f7.�d.C4r44 �I ROY A. cauuem •epee.lsars.e.>Q 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 • art i( -xto6ercrap f-1' zo' pQr41 y'ff Spaces ,4pprok, z 6- r r"/'Ji/iare`-'7 vecDa/ thee, Sa LG s(�? pr req/ preyed -7Y com., .d i%ja7 e 4' cam c?' 9 /et t dcl ay) �Urf /W LZoaX Leak AS - BUILT SURVEY Sf`OrrA(��{ :yip.eti.. sr+�� ,rrdo Tll .ti *I� IS by A. Sawa. • a eJ.ati M0.Id&S rdir iyt (dDy It a • Solo /. c Z(J• 1 Vrdby omify tSi I S.. rr.y.d d. (oUo.i. dulled pommy: fl Po227ow o! L..r 4.. 451/474 4- 8 f590/pr 72'wNssr7.. s(xvzy USJ. 0fd7-23 rd au d. inommou da.-dd..oa.re .aria • . roomy Lb rd do or rclop r mood co tie y.aprty ;yin; Spew Date. that as irr_—..0 i !army lying ofjoroas dorm commit on the psis m "wan sad dr thou moo oo .ui..,a oat. Ion Lino r odor 011ie r b in ..id paperynap* r tt4 and bay St( Dari dga..T/../ .y 79 110 A. Fb14u' D u.0.rad Lal Srwyr ID,nr bp A-7‘ !Date: J2./w-/-/.170 a 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