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I. The following service is requested (check one)
'Show to whom and date delivered 15?
El Show to whom, date, & address of delivery350
El RESTRICTED DELIVERY.
Show to whom and date delivered 65?
❑ RESTRICTED DELIVERY.
Show to whom, date, and address of delivery 85¢
2. ARTICLE ADDRESSED TO:
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3. ARTICLE DESCRIPTION:
REGISTERED NO.I CERTIFIED NO. 1 INSURED NO.
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I have received the article described above. ...
SIGNATURE ❑ Addressee ❑ Authorized agent
DATE OF DELIV V
jfN -5 1978 L
5. ADDRESS (Compla. only8 requaste'd
6. UNABLE TO DELIVER BECAUSE:
CLERK'S
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FIELDS v. KODIAK CITY COUNCIL
Cite as, plasia, 928 P.24927
[5, 6] We are convinced that the notice
afforded Breeden did not satisfy the re-
quirements of due process. There is no
evidence in the record that Breeden ever
received notice of the charges against him
which evidently were the basis for his dis-
missal. Notice must not only be "reason-
ably calculated ... to apprise interested
parties of the pendency of the action," Mul-
lane, 339 U.S. at 314, 70 S.Ct. at 657, 94
L.Ed. at 873, k must also "reasonably con-
vey the required information." Id. Here,
the required information was the basis for
the council's consideration of Breeden's dis-
missal. That information was not con-
veyed.
[7] We also think that the notice was
inadequate in that it demanded either an
immediate appearance to answer unnamed
charges (on April 16th) or an appearance
within twenty-four hours (on April 17th), a
time period not justified by the urgency of
the city's interests involved. See Mathews
v. Eldridge, 424 U.S, 319, 334-35, 96 S.Ct.
893, 902-03, 47 L.Ed.2d 18, 33 (1976).
We are not holding that the city would be
completely unable to discharge Breeden
without providing him with its reasons and
an opportunity to be heard. The very con-
trast which here establishes his property
interest also indicates that, if the city com-
plies with the thirty -day notice provision, it
can discharge Breeden for any valid reason,
or for no reason at all.s
Also, we do not intend to imply that the
city could not under any circumstances dis-
charge Breeden without complying with the
contractual provision calling for thirty days'
notice. There are circumstances under
which adequate reasons could exist for by-
passing the provision; but, under such cir-
cumstances, the city should provide Breeden
with some opportunity to respond to its
reasons for choosing not to comply with the
contractual clause.
As noted, the extent of the property in-
terest involved is only twenty-seven days.
5. This assumes that there is no other contractu-
al provision, statute, ordinance, or tenure sys-
tem from which Breeden could derive a proper-
ty interest. This also assumes that the dis-
Alaska 927
The city can remove any prejudice resulting
from its denial of due process by restoring
the property interest in toto. Thus, on re-
mand, the city should be given its choice of
(1) allowing Breeden the compensation
which he would have been due for that time
or (2) holding a hearing, following reasona-
ble notice, at which Breeden must be given
an opportunity to 'respond to the eity's rea-
sons for discharging him without regard to
the thirty -day notice provision.
Affirmed in part, reversed in part, and
remanded for further proceedings in ac-
cordance with this opinion.
Duncan FIELDS, Appellant,
v.
KODIAK CITY COUNCIL, sitting as the
Board of Adjustment for the Kodiak
Island Borough, Appellee.
No. 4948.
Supreme Court of Alaska.
June 5, 1981.
Property owner sought variance from
local zoning ordinance and the city council,
sitting as board of adjustment, denied re-
quest, and property owner appealed. The
Superior Court of the State of Alaska,
Third Judicial District, Anchorage, Victor
D. Carlson, J., found, that "clean hands"
doctrine precluded property owner from ob-
taining relief sought and, alternatively, that
board's denial was supported by substantial
evidence, and property owner appealed.
The Supreme Court, Connor, J., held that:
(1) board of adjustment's function was to
charge is not made in retaliation for Breeden
exercising some protected right, e. g., his First
Amendment right to freedom of speech.
i;- sss' t
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tptyilt
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928 • Alaska 628"PASIC REPORTER,2d4SERIES tciss ;s•
sl • Is : 'tss s:1 .... : si. ' :; • 2 i , s, ! "
at; c••1--;4 Mil POI' • • •
determine whether requiremft
ents for viri- 1; 5. Zonini and Pinnningtc=703", sosts,-.., , ,,• .2t,•- ., ••.;
ance were met. and, if ao, ,to giant the:c; Duty of court reviewinedertisieridakt,Vi —
variance, and it was not its function., to l;sbeard of adjustment on application for Vitrir,"•'3i
consider matters such as estoppel in deter -sit ance is to determine whether substanthil14.11'9,1'
mining whether variance would be granted, is evidence supported decision on variance re:S•11,1tsiIiiIi1;
and (2) regardless of whether local ordi.: l;•ls quest.AS 29.33.110(c). l . b.,:ssit . s...11,t: 41•15VS.
nance requires findings, board of adjust -s,'; t. . pa,. , a ,,, j,)Is'lttif,k,01€ellt ,"1,1 • ;
meat rulings on variance requests must ren- p 6, Administrative Lawl ands;PrOeedureta
der findings sufficient both to enable parl'st",ssissat„taa676 a • ittssfl4lifiliNsiftjtit',91;",024,1,i
• ties to determine whether and on whet bass ssl,ll sr ti Threshold j question I in 1 adniliilstiativn •It0iIshis•
,sis they should seek review and, in event of 1” appeal is ;whether i record sufficiently re-" pro}if
review, to apprise the reviewing court sof s„1 fleets basis for board's t decision, so' as to • t‘,' S il"
Lb. for board's action and accordingly enable meaningful judicial review., s•-• • s:
• ' 4+11'10'410
,, „, • 'case would be remanded to superior court sils 1, • • •
with directions that it be remanded to ' ki.• Zoning and Planning; 0=726 st1;9141sfOsnl Itss41171
board of adjustment for purpose of provid-sslatisos Where basis of board of itijustiheht'41
' 1
; , •';•ty, rsets;,-;111$•• ,
ing findings of fact relevant to each condi-1T zoning -related determination is unclear, re,
tion required for variance. I' mend is necessary., -• la s 'tiitisss•S • 's' ll: ' •"'441.1•Is•C•C '''''•
; s I • '.' 1.::11, 1 ri!...:'.;•;‘'! 9: Zoning anti Planningle=344Il it y 1 titte0i• r.slisilIii.ts,,11, ' •
' 1' 4 • • 1; , , is a ,.. . it a a ,sttiskettis...1; . i Remanded.
s t s ' LI1'sl 1; ' 1 ' Regardless of whether local ,ors•dinanee•40 'f,J,., 4. '
. ,
, , 1
i Is: Zoning and Planning ,762sa='11 ' •-s4 14 4raluires findings, board of adjustment rul-s.41gits • s -
In zoning context, estoppel is defensive ing on variance request ,must render find -Alt ill,
claim raised to prevent enforcement of zon- ings sufficient both to enable the parties to!'),' i;!
ing ordinance which defense typically an.' s determine whether and on what basis they), „iss.rt,
plies where property owner receives permit - ' should seek review and, in the event of /,,,,,I.,": •
that was beyond power of administrative review, to apprise revieviing court of basis, 1 sts:
', officer to grant, owner detrimentally relies :for board's action. I •, . s; , t sl•
on validity of permit, and local government 1ss - • , 1 ; I .;- , , -t,s,s,,“, lty.;••
9 ' Zoning and Planning'1=749 ss • s•s
- i• . . ' attempts to revoke permit and to enforce's , ' . :
; ' :. ' ; WI; :ii '1'2, ; 'not ;determine why hoed of adjustment
I
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the ordinance. , , , is.; jsWhere court, on present recard, could,,,,,
i,
I
2 Zoning and Planning oca485 ii1s, s s',',Ii tisl 'denied variance request ) where board did I.",
It is not the function of board of ad- *r:iot set forth findings but, rattier, sirimly,'1",1,
justment to consider matters such as estop- :voted t�' deny the request, it was impossible
pel in determining whether variance should
s to determine whether dnial 'was based on '1'314
,. be granted; nor is board to decide equitable ,.
, wiL
I appropriate factors, and absent dear indi-.1,,k • , ; : '
•
questions of "San hands" and,'rathertaJcation of beard's reasoning supporting thei-;Ii:` ' '" s."
, board's power is restricted to that provided , kdenial, superior court erred in ruling that.
, denial Was supported hy substantial evisi.'•is if•
by zoning ordinance and its enabling legis-
lation,. s
. z ... ,s i s,,, s deuce and case would be remanded for pur- , .1 r
'
3 Zoning and Planning" tasa542 •,• ..'is1;4,11 a tpose of directing board of adjustment to set is '
Board of adjustment's function in hear-,, forth findings relevantito conditions re-::
ing request for variance from local zoning.4`quired for granting a variance., 'AS 2133....,•:',ItI411.1
is ordinance was to determine whether re -1 ,• 110.sss tsta; . t se „,1,,, tis
quirements for variance were met and, if •:;:. u,;(1r: .1.3;:st t4/.t: j11,1t itl'icsl•;;' 1 It'1, V• )2. 's? I.
so, to grant the variance. AS 29.31110: tij Stssti•fa ssisc t it,: , ft! 11 4v1,
'46v,tit, ititi ,4,Willinin D: Artba'Artils`&tlattiettel,pPo'l:
„Anchorage, for appellant I !Id's' '•1, , , , 'I, -'.. •
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r I.1 4. , t'ss'sr;!, ..ssis s; ,
,
4. Zoning and Planning ta:ts536
,cj Burden is on party seeking:
• .4 '. l'ailencel s s Cs
• si under zoning ordinance to provide evidence"i ,ks Wev W. Shea end Rebert 3. Maheney,, s
'1 showing that necessary conditions were s Cole, Hartig, Rhodes, Norman & Mahoney,Otte: ; ,
• met. AS 29.33.111 1 , s s , .4ot ss • „s' Anchorage, for appellee.: ‘ ; ' :
1, •
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' • Iis - "ss • ss Psd•
.1 •••
FIELDS. v. KODIAK CITY COUNCIL Alaska 929
Cite as, Alaska, 628 P.2d 927
OPINION used an architect's scale to calculate the
Before RABINOWITZ, C. J., CONNOR,
and BURKE, JJ., and MOODY and
COOKE, Superior Court Judges.
CONNOR, Justice.
This jc an appeal from a decision of the
Kodiak city council, sitting as a board of
adjustment, which denied appellants .t -
a variance from a local zoning
ordinance.' the superior court ruled that
the c an hands" doctrine precluded appel-
lant from obtaining the relief sought and,
alternatively, that the board's denial was
supported by substantial evidence. We dis-
agree, and remand the case so that specific
findings of fact may be made by the board
of adjustment.
In 1972, Duncan Fields purchased the
property giving rise to this dispute. At
that time the land was improved with a
single family residence. The house was
nonconforming, but was "grandfathered in"
under the Local zoning ordinance. Kodiak
Island Borough Code (hereafter KIBC) 17.-
36.010,
7:36.010,
Because of an expanding family, Fields
decided to increase the size and height of
the original structure. In August of 1977,
Fields obtained a blank application for a
building permit from a Mr. Mulitelo, the
borough's zoning administrator, After par-
tially completing the application, Fields
presented both the application and the
plans for the addition to Mr. Slagle, a city
building inspector. Mr. Slagle and Fields
then completed the specifications portion of
the application together. After completing
the application, Fields left the plans with
Mr. Slagle and paid the permit fee.
Fields then went back to see Mr. Mulita-
lo. When reviewing the application, Muli-
talo noticed that the plot plan portion of the
application was not completed. Although
Mulitalo completed the application, there is
a dispute as to who supplied the figures
reflecting the distance the house and the
addition were set back from the front and
side property lines. Fields claims Mulitalo
1. Although a borough zoning ordinance is in-
volved, the Kodiak city council acts as the
setback measurements from a lot plat dated
April 3, 1960. Mulitalo contends that Fields
provided the setback information. The ap-
plication states that the left side lot setback
is 15 feet when, in fact, it ranges from
slightly less than one and one-half feet at
the junction of the original house and the
addition to approximately two and one-half
feet at the rear of the addition. The appli-
cation correctly states that the front yard
setback is seven and one-half feet.
Title 17 of the Kodiak Island Borough
Code contains the zoning requirements ap-
plicable to Fields' property. Section 17.18,-
040 requires a front yard setback of twenty-
five feet and side yard setbacks of twenty-
five feet or ten percent of the width of the
lot, whichever is leas. Any nonconforming_
use existing prior to the effective date of
the code may be continued; such noncon-
forming use, however, may not be altered
or enlarged in any way. KIBC 17.36.010.
Section 17.45.030 gives the planning depart-
ment discretion to approve permits where
the front yard setback is less than twenty-
five feet if seventy-five percent of the
buildings in the area are also situated less
than twenty-five feet from the front lot
line. The code does not confer similar dis-
cretion on the department with respect to
side setbacks. There is some evidence, how-
ever, that the department did, in fact, exer-
cise such discretion in the past with respect
to side yard setbacks. Fields' lot is approxi-
' mately forty-four feet wide, so the required
side lot setback is about four and four -
tenths feet. The actual side setback is ap-
proximately one and one-half feet to two
and one-half feet.
Because Fields' front yard setback was
less than twenty-five feet, it was necessary
for Mulitalo to conduct an on-site inspection
to determine whether seventy-five percent
of the buildings in the area had similar
front setbacks. After measuring Fields'
front yard and the front yards of several of
the houses in the neighborhood, Mulitalo
board of adjustment for the area within the
city's boundaries. AS 29.33.110,
930 Alaska 628 PACIFIC REPORTER, 2d SERIES
approved the permit. Mulitalo did not
measure the side setbacks. At the time of
the inspection, there was a fence approxi-
mately two and one-half feet from the left
side of Fields' existing house. It was thus
apparent that the existing sidelot setback
was nonconforming, but this assertedly
went unnoticed. When he approved the
building permit, Mulitalo wrote on its face
that no variance was required for the addi-
tion.
In December of 1977, Fields began con-
struction of the addition. In April of 1978,
Mr. White, a neighboring landowner and a
member of the Kodiak city council, in-
formed Mr. Harry Milligan, the borough
planning director, that Fields' addition was
in violation of the borough's zoning ordi-
nances. On May 31, 1978, Milligan advised
Fields that his residence and addition were
in violation of the side setback requirement.
On June 7, 1978, Fields requested a vari-
ance. Fields filed a completion notice on
June 14, 1977, stating that the structure
had been completed on June 4, 1977. At
the time of completion, Fields had incurred
approximately $60,000 in construction costs.
On June 26, 1978, the borough's planning
and zoning commission issued a stop work
order. On July 3, 1978, that commission
denied Fields' variance request, despite the
planning staff's recommendation that a
variance be granted. Fields appealed the
commission's denial to the board of adjust-
ment. Fields' appeal stayed the stop work
order issued on June 26, 1977. AS 29.33.-
120.
9.33:120.
On August 24, 1978, the city council, sit-
ting as the Kodiak board of adjustment,
held a hearing to consider Fields' request
for a variance. Mr. Artus, Fields' attorney,
argued that the four requirements for the
2. None of the estoppel cases that appellant
cites are applicable here. Many fall within the
category described above: estoppel was raised
as a defense in an enforcement proceeding.
See City of Marseilles v. Naris, 27 III.App.3d
454, 325 N.E.2d 767 (1975); City of Chicago v.
Grendys Bldg. Corp., 4 III.App.3d 634, 281
N.E.2d 708 (1972); City of Evanston v. Rob-
bins, 117 111 App 2d 278, 254 N.E.2d 536 (1969);
State ex rel. May v. Hanson, 167 Mont. 441,
539 P.2d 376 (1975); Rosenthal v. City of Dal -
granting of a variance under KIBC 17.66.-
090(B)
7.66:090(B) had been met. Mr. Artus also ar-
gued that regardless of whether Fields sat-
isfied the four requirements, a variance
should be granted under the doctrine of
equitable estoppel. At the close of the
hearing, the board voted to deny Fields a
variance. The board did not issue findings
of fact. White testified at the hearing, but
did not vote.
Fields then appealed the board's decision
to the superior court. The appeal stayed
enforcement proceedings. AS 29.33.130.
The borough has not indicated what action,
if any, will be taken with respect to the
sidelot setback violation. '
Fields asked the superior court to hold
Kodiak estopped from denying him a vari-
ance and, alternatively, to limit any sanc-
tion imposed for the violation of the ordi-
nance to $500.00. The superior court did
not take additional testimony; its review
was based on the record. The court held
that Fields was precluded from seeking eq-
uitable relief by the "clean hands" doctrine,
and that there was substantial evidence to
support the board's decision.
[1-3] An initial observation must be
made. The parties have argued at length
about whether the board of adjustment was
estopped from denying Fields a variance for
the setback violation. Fields' estoppel
claim is premised upon his detrimental re-
liance on the validity of the building permit,
and on the inspector's written statement on
the permit that no variance was required.
In the present posture of this case, however,
estoppel is not an issue'. In the zoning
context, estoppel is a defensive claim raised
to prevent enforcement of a zoning ordi-
nance? 4 A. Ratltkopf, The Law of Zoning
las, 211 S.W.2d 279 (Tex.C1v.App.1948). One
applied estoppel against complaining adjacent
landowners who were seeking to have a vari-
ance revoked. Hill v. Board of Adjustment,
122 N.J.Super. 156, 299 A.2d 737 (App.Div.
1972), Another refused to'enjoin a zoning vio-
lation on the ground that the equities did not
warrant injunctive relief. Grand Haven Town-
ship v. Brtanmel, 87 Mich.App. 442, 274
N.W.2d 814 (1978).
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FIELDS v. KODIAK CITY COUNCIL Alaska 931
Cite as, Alaska, 828 9,241927
and Planning § 67-1 (4th ed. 1980). The
defense typically applies where a property
owner receives a permit that was beyond
the power of an administrative officer to
grant, the owner detrimentally relies on the
validity of the permit, and the local govern-
ment attempts to revoke the permit and
then enforce the ordinance. But. "[i]t is not
the function of ... [the board of adjust-
ment] to consider matters such as estoppel
in determining whether a variance
should be granted." Carini v. Zoning Board
of Appeals, 164 Conn. 169, 319 A.2d 390, 393
(1972), cert. denied, 414 U.S. 831, 94 S.Ct.
64, 38 L.Ed.2d 66 (1973). Nor is the board
to decide equitable questions of "clean
hands." Rather, the board's power is re-
stricted to that provided by the zoning ordi-
nance and its enabling legislation. City &
Borough of Juneau v. Thibodeau, 595 P.2d
626, 635 n.31 (Alaska 1979). Thus the Kod-
iak board of adjustment's function was to
determine whether the requirements for a
variance were met and, if so, to grant the
variance, See AS 29.33.110; KIBC 17.66.-
090,
7.66:090, 17.69.020.
The only proper issue on appeal is wheth-
er the board's denial of the variance is
supported by substantial evidence. Galt v.
Stanton, 591 P.2d 960, 962-63 (Alaska
1979); Keiner v, City of Anchorage, 378
Others stand for the proposition that once a
benefit is conferred upon a landowner who
subsequently relies on it, the focal government
can be estopped from denying the initial validi-
ty of its act. See Woodie v. Byram, 132 Cal.
App.2d 651, 282 P.2d 920 (1955) (where city
issues series of business licenses notwithstand-
ing business' violation of zoning ordinance, city
is estopped from denying renewal of license on
ground that business was previously in viola-
tion of zoning ordinance); Bregar v. Britton, '75
So.2d 753 (FIa.1954), cert. denied, 348 U.S. 972,
75 S.Ct. 534, 99 L.Ed. 757 (1955) (city estopped,
on facts, from revoking particular zoning clas-
sification as applied to plaintiffs land); King
County v. Commercial Waterway Dist., 42
Wash.2d 391, 255 P.2d 539 (1953) (governmen-
tal agency estopped, as between it and pur-
chaser, from denying validity of sale of its
land). Under these latter cases, appellee may
have been estopped from revoking the building
permit, or from revoking a variance had one
been granted. but the proper procedural vehicle
for asserting this claim would have been by
way of either a defense in an enforcement pro-
ceeding or in an action for declaratory relief.
P.2d 406, 411 (Alaska 1963). Questions of
estoppel and "clean hands" are not relevant
to this question?
[4] In order to:obtain a variance under
the zoning ordinance, Fields was required to
establish the following:
"1. That there are exceptional physi-
cal circumstances or conditions applicable
to the property br to its intended use or
development which do not apply general-
ly to the other: properties in the same
land use district;
2. That the strict application of the
provisions of this title would result in
practical difficulties or unnecessary hard-
ship;
3. That the granting of the variance
will not result in material damage or
prejudice to other properties in the vicini-
ty nor be detrimental to the public
health, safety or welfare;
4. That the granting of the variance
will not be contrary to the objectives of
the comprehensive plan."
KIBC 17.66.090(13). The burden was on
Fields to provide evidence showing that
these conditions were met. City & Borough
of Juneau v. Thibodeau, 595 P.2d at 635;
Kelly Supply Co. v. City of Anchorage, 516
For previous discussions In our case law re-
garding claims of,estoppel in general, see Jami-
son a Canso!. Utils., Inc., 576 P.2d 97, 102-03
(Alaska 1978); !Arctic Contractors, Inc. v.
State, 564 P.2d 30, 40 (Alaska 1977); Dresser
Indus., Inc. v. Fois Launch & Zug Co., 560 P.2d
393, 396 (Alaska 1977).
3. We dp not mean to imply, however, that
Fields is not entitled to estop the city or bor-
ough from actually enforcing the zoning ordi-
nance against his nonconforming use. Indeed.
on the limited record before us it appears that
Fields may have, a strong claim for estoppel.
That claim, however,. should be raised as a
defense to an enforcement action or as a claim
for declaratory relief. Our disposition of this
case is without prejudice to Fields' right to
raise estoppel in an appropriate proceeding.
For example, in .our recent opinion in Pioneer
Sand & Gravel ,v. Municipality of Anchorage,
627 P.2d 651 (Alaska 1981), we held that an
action for inverse condemnation and declarato-
ry relief should be remanded for consolidation
with an administrative appeal.
932 Alaska 628 PACIFIC REPORTER, 2d SERIES
P.2d 1206, 1211 (Alaska 1973); Boyajian v.
Board of Appeals, 6 Mass.App. 283, 374
N.E.2d 1237, 1237-38 (1978). The lack of
countervailing evidence does not alone es-
tablish that this burden has been met. Ha-
zelton v. Zoning Board of Appeals, 48 111.
App.3d 348, 6 111.Dec. 515, 363 N.E.2d 44, 48
(1977). As a final limitation on when a
variance may be obtained, state law pro-
vides that "[a] variance shall not be granted
because of special conditions caused by ac-
tions of the person seeking relief or for
reasons of pecuniary hardship or inconven-
ience." AS 29.33.110(c).
[5] The duty of the board of adjustment
was to reach a decision on the variance
req�ruest that is supportesi by substantial evi-
dence.uubsCantlal evidence is "such rele-
vant evidence as a reasonable -mind -might
accept as adequate to supporta £arid« 5ta`."
Kefner 3378 P.2i1 r4ii-`The duty of this
court, and that of the superior court below,
is to determine whether such evidence sup-
ports the board's conclusions. Fulfilling
that duty is difficult where, as here, the
board fails to make findings regarding the
conditions for a variance. Although .ur
L___._
prior cases have clearly articulated the su
stantial evidence test, they have failed
clarify whether local zoning or adjustmen
boards must always set forth findings, nor
have they illuminated the proper relation-
ship between the evidence, findings, and
ultimate_age * tion
(6) The threshold question in an admin-
istrative appeal is whether the record suffi-
ciently reflects the basis for the board's
decision so as to enable meaningful judicial
review. In previous administrative appeals
we have declined to impose a specific re-
quirement that findings be prepared when
we were able to determine the basis for the
4. The author of this opinion dissented in Moore
from the holding that the case be remanded for
a record more reflective of the basis for the
administrative decision. Moore, 553 P.2d at 22
n.23. Moore, however, Is distinguishable on
numerous grounds. The challenged decision in
Moore was whether the leasing of certain lands
for resource development was in the "best in-
terests" of the state. In the author's view, that
decision was committed to broad agency dis-
cretion, and involved the "formulation of public
challenged decision. Thus in Mobil pit le
Corp. v. Local Boundary Commission, 516
P.2d 92 (Alaska 1974), challenging the ad-
ministrative approval of the incorporation
of the North Slope Borough, we rejected
the argument that the boundary commis-
sion was required to issue findings because
no statute required findings, and we were
able to determine from the record the basis
for the commission's decision. Id. at 97.
But we explicitly noted that
"in the usual case findings'of fact would
be required even in the absence of a
statutory duty in order to facilitate judi-
cial review, insure careful administrative
deliberation, assist the parties in prepar-
ing for review, and restrain agencies
within the bounds of their jurisdiction."
Id. at 97 n.11. See K & L Distributors, Inc.
v. Murkowski, 486 P.2d 351, 359-60 (Alaska
1971) (findings not required where basis of
decision clear). Where the basis of an ad-
ministrative decision is unclear, howevee_
we have remanded f r ore iteration of
re rco d reflecting the agency's re gjng_
-pocess, Sea Moore v. State, 553 P.IL,.36.
(Alas�ta 1976__x_
[7] Appeals from zoning -related deter-
minations should be treated in the same
way. At least two of our prior cases con-
cerning zoning appeals did include adminis-
trative findings, and thus the'issue of re-
quiring findings was not addresaed. Sea
City & Borough of Juneau v. Thibodeau,
595 P.2d 626, 632 n.19 (Alaska 1979); Kein-
er v. City of Anchorage, 378 P.2d 406, 411
(Alaska 1963). In others, the issues were
such that, based on the record, detailed
findings were not necessary for this court
to understand the agency's reasoning proc-
ess. See Galt v. Stanton, 591 P.2d 960,
962-65 (Alaska 1979); Kelly Supply Co. v,
City of Anchorage, 516 P.2d ;1206, 1208,
policy on the basis of highly technical scientific
and economic information which we are poorly
equipped to appraise." In the instant case, on
the other hand, specific criteria for a variance
exist against which the evidence can be meas-
ured, The sphere of administrative discretion
in granting a variance is limited. Further, in
Moore the govemmental agency was engaged
In the conduct of public proprietary business,
rather than, as here, in the regulation of private
interests.
121
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6
FIELDS v. KODIAK CITY COUNCIL Alaska 933
Cite as, Alaska, 1328 Pad 027
1210-11 (Alaska 1973). Where the -basis -of
the hoard's decision is unclear, homer a
remand is necessary. SeelKefmLPeninsula
Borough v. Bylined, 628 P 2d 657 (Alaska
T981) (remanding case to planning -commis -
sion for statement of reasons supporting its
—in—Mon to deny the requested plat).
[8, 9] The statute governing appeals
from decisions of the board of adjustment
states that appeals are heard "upon the
record." AS 29.33.130(d). The statute re-
quires an aggrieved party seeking review to
specify the grounds for the appeal. AS
29.33.130(b).5 This requirement is also
found in the governing local ordinance.
KIBC 17.69.030. A board's failure to pro-
vide findings, that is, to clearly articulate
the basis of its decision, precludes an appli-
gant from making the r uined s ecifj ation.
and thus can deny meaningful judicia(re-
'view. Alcorn v.ort eliea s
toning Board of
—al 114 N.1-1. 491, 322 A.2d 608, 610
(1974). We believe that implicit in AS 29:
33.130(b) is the requirement that the agency
rendering the challenged decision set forth
findings to bridge the analytical gap be-
tween the raw evidence and the ultimate
decision or order. Only by focusing on the
relationship between evidence and findings,
and between findings and ultimate action,
can we determine whether the board's ac-
tion is supported by substantial evidence.
See Topanga Association for a Scenic Com -
5. AS 29.33.130(b) states:
"A municipal officer, a taxpayer, or a per-
son, jointly or severally aggrieved, may ap-
peal an action of the board to the superior
court by filing with the borough clerk within
the time fixed by ordinance, a notice of ap-
peal specifying grounds. When the notice of
appeal Is filed, the board shall at once trans-
mit to the superior court clerk copies of alt
papers constituting the record in the case."
(emphasis added).
6. The Kodiak Borough ordinance governing
variance requests provides that a variance may
be granted "where it is found that all four of
the specified conditions exist." KIBC 17.69.-
02003).
7.69:020(8). We do not, however, rest our ruling
upon this provision.
7. Professor Andersen explains the importance
of findings:
"Given express findings, the court can deter-
mine whether the findings are supported by
substantial evidence, and whether the find-
munity v. County of Los Angeles, 11 Ca1.3d
506, 113 Cal.Rptr. 836, 840, 522 P.2d 12, 17
(1974). Thus we hold that regardless of
whether a local ordinance requirea _rtnd-
ings° a board of adjustment ru'
vanance reques must render findinv-
r en rot o ena e e partiesso deter-
mine ii then artj on what hauls they
should seek review and, in the event of
review, to apprise a revi�ng rourt_ef the
basis for the board's action 4._113.Cal.
Rptr. at 840, 522 P33—ut 16. Accordingly,
the case must be remanded to the superior
court with directions that it be remanded to
the Kodiak board .of adjustment for the
purpose of providing findings of fact rele-
vant to each condition required for a vari-
ance.
Our ruling finds support in persuasive
policy considerations? and In other jurisdic-
tions. See Topanga Association for a Sce-
nic Community, 113 Cal.Rptr. at 840-&12;
522 P.2d at 16-19; Carlton v. Board of
Zoning Appeals, 252 Ind. 56, 245 N.E2d 337,
343-44 (1969); Tireman-Joy-Chicago Im-
provement Association v. Chernick, 361
Mich. 211, 105 N.W.2d 57, 61 (1960); Alcorn,
322 A.2d at 610; Packer v. Hornsby, 221
Va. 117, 267 S.E.2d 140, 142 (1980); Par-
kridge v. City of Seattle, 89 Wash.2d 454,
573 P.2d 359, 365 (1978); Harding v,. Board
of Zoning Appeals, 219 S.E.2d 324, 329-31
(W.Va.1975); 3 K. Davis, Administrative
Law Treatise § .14.21, at 102, § 14.22,
Ings warrant the:decision of the board. If no
findings are made, and if the court elects not
to remand, its clumsy alternative is to read
the record, speculate upon the portions
which probably were believed by the board,
guess at the conclusions drawn from credited
portions, construct a basis for decision, and
try to determine whether a decision thus ar-
rived at should be sustained. In the process,
the court is required to do much that Is
assigned to the board, and the latter becomes
a relatively inefficient instrument for the con-
struction of a record." (footnote omitted).
3 R. Anderson, American Law of Zoning
§ 20.41, at 540 (2d ed. 1977).
Professor Davis notes that the requirement
that administrative agencies provide findings
supporting their decisions historically derived
from the common law. 3 K, Davis, Adminis-
trative Law Treatise § 14.21, at 102-03, § 14.24
(2d ed. 1960).
v „ .
934 Alaska 628 PACIFIC REPORTER, 2d SERIES
§ 14.26 (24 ed. 1980); 3 R. Anderson, Amer-
ican Law of Zoning §§ 20.32, 20.41 (2d ed.
1977). As the court in Topanga Association
noted, a findings requirement forces the
administrative body to draw legally rele-
vant subeonelusions that are supportive of
its ultimate decision. Topanga Association,
113 Cal.Rptr. at 842, 522 P.2d at 18. This
facilitates orderly analysis on the part of
the board and "minimize[s] the likelihood
that the agency will randomly leap from
evidence to conclusions." Id.
More importantly, findings enable the re-
viewing court to meaningfully examines
the agency's mode of analysis. Absent
findings, a court is forced into "unguided
and resource -consuming explorations," Id.
113 Cal.Rptr. at 842, 522 Ptd at 18; grop-
ing through the record to determine
"whether some combination of credible evi-
dentiary items which supported some line of
factual and legal conclusions supported the
ultimate order or decision" of the board.
Id. Finally, as previously noted, findings
enable the parties to determine whether
and on what basis they should seek review.9
On the present record, we cannot deter-
mine why the board denied the variance
request. It did not set forth findings;
rather, it simply voted to deny the request.
It is impossible to determine whether the
denial is based on appropriate factors. Ab-
d. Judicial review of grants of variances plays
an Important role in protecting both the inter-
ests of the applicant and the interests of nearby
property owners, As the court In Topanga
Ass'n noted:
"A zoning scheme, after all, is similar in
some respects to a contract; each party fore-
goes rights to use its land as it wishes in
return for the assurance that the use of
neighboring property will be similarly re-
stricted, the rationale being that such mutual
restriction can enhance total community wel-
fare.... 1f the interest of these parties in
preventing unjustified variance awards for
neighboring land is not sufficiently protected,
the consequence will be subversion of the
critical reciprocity upon which zoning regula-
tion rests.
Abdication by the Judiciary of its responsi-
bility to examine variance board decision-
making when called upon to do so could very
well lead to such subversion. Significantly,
many zoning boards employ adjudicatory
procedures that may be characterized as cas-
ual.... The availability of careful judicial
sent a clearer indication of the board's rea-
soning supporting the denial, the superior
court erred in ruling that the denial is sup-
ported by substantial evidence. The case is
remanded for the purpose of directing the
Kodiak board of adjusttitent to set forth
findings relevant to the conditions required
for granting a variance.
REMANDED.
MATTHEWS, J., not participating,
JAPAN AIR LINES CO., LTD., and the
Tokio Marine & Fire insurance Co.,
Ltd., and other co -Insurers under Air-
craft Insurance Policy No. 75091101, Pe-
titioners,
STATE of Alaska, Respondent.
No. 5027.
Supreme Court of Alaska.
June 5, 1981,
Airline petitioned for review of deci-
' sion of the Superior Court, Third Judicial
review may help conduce these boards to
insure that all parties have an opportunity
fully to present their evidence and argu-
ments. Further, . the membership of
some zoning boards may' be inadequately in-
sulated from the interests whose advocates
most frequently seek variances.... Vigor-
ous Judicial review thus can serve to mitigate
the effects of insufficiently independent deci-
sion-making." (citations and footnote omit-
ted).
Topanga Ass'n, 113 Cal.Rptr. at 843, 522 P.2d
at 19.
9. We agree with the California court that the
board's findings need not bye stated as formally
as is required in a judicial proceeding. Topan-
ga Ass'n, 113 Cal.Rptr. at 842 n.16, 522 P.2d at
18 n.16. The findings, however, must be sari- •
dent to expose the board's mode of analysis.
Thus we disapprove of setting forth findings
solely in the language of the applicable legisla-
tion or ordinance.
4'104
MINUTES OF THE REGULAR MEETING OF T
OF THE CITY OF KODIAK
HELD ON AUGUST 29, 1978
MEETING CALLED TO ORDER
COUNCIL
Mayor Stevens called the meeting to order at 7: 90 p.m. Pre:
Eaton, Hatcher, Lechner, Mayberry, White and Woodruff.
Mayor Stevens added the following items to the agenda with
Resolution 24-78, personal property tax information prograr
termination.
lI. PREVIOUS MINUTES
Oal( -+iii Rhoc16
9.16 .72 -
UP; 13
3
Councilwoman Lechner moved for approval of the minutes of the regular meeting
of August 10, 1978, seconded by Councilman Woodruff. The Mayor questioned
the two motions regarding Change Order No.1 on the Mall Steps project and asked
that they be checked with the tape and amended if necessary. Roll call on the
motion was unanimously favorable.
• OLD BUSINESS
a.• Second Reading and Public Hearing Ordinance 527 RE: Campaign Financing
Mayor Stevens read the Ordinance by title and explained that the Ordinance
would place the question of opting out of the State campaign disclosure regulations
on the ballot. Councilwoman Eaton moved for' approval of Ordinance 527,
seconded by Councilwoman Hatcher. Mayor Stevens opened the public hearing
and there being no comments from the audience the public hearing was closed.
Roll call on the motion was unanimously favorable.
IV. BOARD OF ADJUSTMENT ,
,
Mayor Stevens recessed the regular Council meeting at 7:90 p.m. and convened
a Board of Adjustment hearing concerning an appeal on a variance request for
sideyard set back. Mr. Artus, the attorney representing Mr. Duncan Fields the
appellant, Mr. Fisher the attorney for Mr. Wilton White, a property owner protesting
the granting of the requested variance and Mr. Milligan, Acting Borough Manager,
agreed to procedures outlined by the Mayor.
Opening statements were made by both attorneys then witnesses were sworn and
testimony presented. Testimony related to the sideyard set back shown on the
building permit application which indicates a much larger sideyard than actually
exists. The question of estoppel was presented by Mr. Artus and contested
by Mr. Fisher. Lengthy presentation was made and the meeting was recessed
several times. After the conclusion of the closing arguments, Mr. Mahoney
advised the Council on several provisions of State law and the Zoning ordinance.
Councilwoman Lechner moved to uphold the decision of the Planning and Zoning
Commission, seconded by Councilman Mayberry. Roll call was as follows:
Eaton, no; Hatcher, no; Lechner, yes; Mayberry, yes; Woodruff, yes. Motion
failed. 'A brief recess was called while the Attorney researched the voting
requirements on a planning and zoning decision Councilwoman Lechner moved
to grant the variance, seconded by Councilman Mayberry. Roll call was as
follows: Eaton, yes; Hatcher, yes; Lechner, no; Mayberry, no; Woodruff, no.
Motion failed. The Board of Adjustment was adjourned at 12:05 a.m.
V NEW BUSINESS
a. Vacation of Right -of -Way RE: Lot 17, Block 16, Townsite Survey
Mr. Jim Eggemeyer had requested the vacation of a 14 -foot road that runs
down the middle of his property. Councilman White moved that the Council
allow the vacation, seconded by Councilman Mayberry. Roll call was unanimously
favorable.
400 I
CITY OF KODIAK
MINUTES OF THE REGULAR CITY COUNCIL MEETING
OF THURSDAY, JUNE 11, 1981
•
MEETING CALLED TO ORDER
Mayor Beardsley called the meeting to order at 7:37 p.m. Present were Coumcilmenbers
Sargent, Lechner, White and Pugh. Councilman Hans arrived at 7:55 p.m.
II. PREVIOUS MINUTES
Coumncilwmman Lechner moved for the approval of the minutes of the Regular Meeting for
May 28, 1981, seconded by by Councilman Pugh Councilman Pugh requested a correction i
change Pugh to Mills in the last paragraph on page one of the minutes "c. Public
Hearing, Second Reading Ordinance 603". Also in this section, Councilwoman Lechner
wanted it made clear that they refessed to Kodiak Island Housing Authority, calling
attention to the fact that this was an exception rather than a variance. In the next
paragraph at the top of page two of the minutes, she asked that the word plus be
changed. Councilwoman Rohner requested spelling corrections "occasions" and "recog-
nition" on page five, paragraph two and six of the minutes. Roll call was unanimously,
favorable.
III. PERSONS TO BE HEARD
a. Planning & Zoning Commissioner
Virginia Crowe was present fron the Planning & Zoning Commission. No one in the audi-
ence had questions.
Mr. Ryan asked if the Council would like to send a letter to. the Borough clarifying tM
Council's position on Ordinance 603, by stating that the Council would be willing to
approve the annexation and give City water and sewer when the project met the Planning
and Zoning and Borough requirements. Mr. Azunbrado met with HUD in Anchorage. Council.
woman Lechner was not willing to go on record right now as approving the annexation.
Councilman Pugh asked again if our HUD grant was endangered by the Council's stand. Mi
Ryan answered that Kodiak's HUD grant bad been approved, but the funding contract had
not been received yet and he felt a letter of this type world closea gap. Councilwcm
Lechler brought up that police reports indicated a higher number of calls in Fir Terra(
and Low -Cost Housing as compared to regular residential areas. Mrs. Crowe stated
that an appeal by Kodiak Island Housing Authority would be heard by, Borough
Assembly at the July meeting. Councilwoman Ladner later agreed to writing a
letter to HUD saying that the Council would reconsider its decision after Planning
& Zoning approval of the project, but not implying blanket approval of the proposed
plan.
Councilman Pugh mentioned that Superior Court was returning a Planing and Zoning
race L,.un 2% years ago and pointed out that all transcripts should be available.
Mr. Ryan suggested that perhaps Staff could respond to the Board of,Adjustnnent
with reasons for decision. Nothing official had been received yet on this case.
OLD BUSINESS
a. Public Hearing, Second Reading Ordinance 608 RE: Annexation Lots 27A & 27B, USS
27B,USS 3098
Mayor Beardsley read the Ordinance by Title. An Ordinance requesting routine
annexation of an "island" surrounded by City property. Councilman Sargent moved
to approve Ordinance 608 in the second reading, seconded by Councilwoman Lechner.
Mayor Beardsley opened the public hearing at 7:50 p.m. and closed the public
hearing when no one came forward to testify.
Discussion followed. Councilman Pugh wondered why the city should annex property
that would pay no taxes and would need police protection. Councilwoman Latimer
felt that there was no relevance in comparing this annexation with others the
Council had considered. Councilman Sargent questioned the mewing of the phrase
"in lieu of assessments", and Mr. Beukers explained that the charges were for
improvements rade by the City on the property. These charges in lieu of an
assessment had been paid for this property.
CouncilmanHans arrived at 7:55 p.m.
Ordinance 608 was passed by a unanimously favorable vote.
1
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32
ARTUS & CHOQUETTE. P.C.
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
HOS WEST THIRD AVENUE
ANCHORAGE. AK 99501
TELEPHONE 274-4626
IN THE SUPERIOR COURT FOR THE STATE OF
THIRD JUDICIAL DISTRICT
DUNCAN FIELDS,
Appellant,
vs.
KODIAK CITY COUNCIL sitting
as the BOARD OF ADJUSTMENT
for the KODIAK ISLAND BOROUGH,
Appellee.
No. 3AN-78-6400 CIV.
ALASKA
AFFIDAVIT FOR DISQUALIFICATION OF JUDGE
STATE OF ALASKA
THIRD JUDICIAL DISTRICT)
ss.
WILLIAM D. ARTUS, being first duly sworn, upon oath,
deposes and says:
1. That he is the attorney for the Appellant in the
above -captioned administrative appeal.
2. That he believes his client,
obtain a fair and impartial hearing before
DUNCAN FIELDS, cannot
the Hon. Mark C.
Rowland, to whom this matter is presently assigned.
3. That this affidavit is made in good faith and not
for purposes of delay.
4. That affiant respectfully requests that the
presiding Judge assign this matter to another Judge pursuant to
the provisions of A.S. 22.20.022.
Further your affiant sayeth naught.
SUBSCRIBED AND SWORN TO before me
gl-iis 4th day of Oc ober, 1978.
taryublic in and for Alaska
py,commission expires: 10-47-
Uditalt isLad Bovough
KODIAK, Al.tVA
RECEIVH)
OCT 5 1978
113ii
701911.0111(121112131404
A
This is to certify that
a copy of the foregoing
document was mailed to
the Kodiak City Council
& Kodiak Island Borough
on 0 tobe 4 .97:.
William D. Artus
l
HARTIG,
ROBERT L. HARTIG 11928-19801
JAMES D. RHODES
JOHN K. NORMAN
ROBERT J. MAHONEY
G. KENT EDWARDS
BERNARD J. DOUGHERTY
MICHAEL W. SHARON
ROGER H. BEATY
EDGAR R. LOCKE
MICHAEL ROBBINS
C. WALTER EBELL
SPENCER C. SNEED
MELVIN M. STEPHENS. II
ROBERT C. BRINK
RHODES, NORMAN, MAHONEY & Eq-WfR-DS a\
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
SUITE 201
717 K STREET
ANCHORAGE. ALASKA 99501
TELEPHONE: 1907) 274-3576
TELECOPIER: (907) 277-4352
TELEX: 10901 25-404
CABLE:"NORTH"
June 30, 1981
William Walton, Planning Officer
Kodiak Island Borough
700 Upper Mill Bay Road
Kodiak, AK 99615
Dear Mr. Walton:
'J 't 0J//}K 00021 Ao
021AC E0470
E 5 E:
[1181/
l' 1Vi4/KKODIAK. P¶ 9i E..85 � SKA 99615
19AL R... ELL
143
., Y9 ALTER.£ ELL
VIN MIS TE PH ENS. II
etJ�
REPLY TO:
Kodiak Island Borough
Kodiak, Alaska
RECEIVED
JUL -11981
503
PM
I1Oi1,1-1 1:! ! I t+1 (6
Re: Duncan Fields. vs. Kodiak City
Council/Kodiak Island Borough
Our File 844-32.1
A
This letter will confirm our telephone conversation of
June 25, 1981, relating to the above referenced case.
During that conversation I summarized the issues that have
been presented to the city council sitting as the board of
adjustment and to the superior and supreme court iri Alaska.
I explained that the Supreme Court had determined that they
could not decide whether the decision of the board of adjustment
was supported by substantial evidence in the recordibecause
the board of adjustment had not made specific findings of
fact to support their decision. Prior to this case that
requirement did not exist.
The approach to be taken by the City of Kodiak on a remand
is somewhat unclear because of the change in the membership
of the city council as well as the change in the' borough
planning staff. I have not as yet determined the, procedure
to utilize but Mr. Fields' attorney has indicated that he
would object to a procedure whereby the current council
would enter findings of fact based upon a record because he
feels there are issues of credibility to be resolved. In
view of the fact that the supreme court has determined that
the estoppel issue is one that shouldnot be raised until
enforcement proceedings are commenced, it would not appear
that credibility of the witnesses wouldbe a -significant
William Walton, Planning Officer
June 30, 1981.
,Page Two
factor. Nevertheless, there might be a requirement for a
hearing de novo with the resulting expenses related to
transportation of witnesses.
In the alternative, and if authorized, it may be[difficult
for the city to locate and obtain the concurrence of the
members of the council who formally heard the case. Several
of those council membeks no longer reside in the Kodiak
area.
Prior to making a determination as -to whether the city
should incur the expenses involved in resolving the issues
on remand, I am requesting, on the city's behalf, that -the
Kodiak Island'Borough.evaluate the case against Mr.Fields
and determine whether any enforcement action would be brought
against Mr. Fields-for:failure to bring his.dwelling into -
compliance with the existing codes at the time o COnstruction.
Obviously, if the Kodiak Island Borough would not take any -
enforcement action, .the city should not incur thle costs that
will be required to enter the findings of:fact on remand.
Conversely, if the borough makes a commitment that they will
enforce a -decision of the *city denying the requested variance,
it would appear that the city would have little choice but
to proceed to obtain the findings of fact necessary.to
permit the court -to- evaluate its decision or, inithe alternative,
toholda hearing de nOvo.on Mr. Fields,appeal.
I have conferred with -Mr. Garnett regarding thismatter"and
he concurs with the approach I am taking. Obvious0, we
would like to have some commitment froth you one wayor
another at the earliest'possibla date. As indicated in our
earlier conversation, Kay Baker will make all the pertinent
files retained by the City of Kodiak available. t4 you. If
there is any additional information that you would like to
have, please advise me at your 'oonvenience. .With that
information, I would hope that you can make a -recommendation
regarding the enforcement or -nonenforcement of the Borough
Zoning Code in the context of the facts presented,and,'if
you determine that,enforcement.should be recommended obtain
any executive or assembly commitment. that might be appropriate.
4
9 •
William Walton, Planning Officer
June 30, 1981
Page Three
Thank you for your assistance in this matter.
Kindest regards.
RJM:bad
cc: City of Kodiak
-Rick Garnett, Esq:
Very truly yours, 1 ;
HARTIG,: RHODES, NOWN,
MAHONEY & EDWARDS
By:
lzrt
Robert Mahoney
42.
THE TREME COURT OF THE LASKJ
‘i.446mm
KODIAK. AM
DUNCAN FIELDS
v.
KODIAK CITY COUNCIL
tECEIV
NO/Man & MabOne.
OCT 22 1979
T181979
desildb1i2131415File %
.
Appellee.
counsel f
1
ENTRY OF
APPEARANCE
The clerk will enter (my) (our)
1
appearance as
KODIAK CITY COUNCIL, Appellee
DATED
(Appellant)
(App(!liee)
October 19 , 197 9 .
•
COLE, HARTIG, RHODES,
NORMAN MAHONEY
By: EceeJ
Address: Robert( . Mahone4j
717 K Street,:Sult.e. 201
Telephone No.:
Anchoracle, AK 99501
274-3576
/ Insert name -of party and designate whether appellant or -
appellee.
JM: bad
)44-32.1
-OLE, HARTIG.
":JOES, NORMAN
8, MAHONEY
SUITE 201
T K ST VIE E. T
cHonAr.c. ALASK A
09501
O E. LILPKONE
(9071 274.3376
SUPREME
IN THE gleWPAZX COURT FOR THE STATE OF ALASKA
THIRD JUDICIAL DISTRICT
AT ANCHORAGE
DUNCAN FIELDS,
APPELLANT, )
vs.
)
mozimagkiwk )
)
)
KODIAK CITY COUNCIL,
)
)
-APPELLEE, )
)
IIIKIWNXANtagYX )
)
Case No. 3 -AN 4948
AFFIDAVIT OP SERVICE BY MAILING
STATE OF ALASKA
:ss:
THIRD JUDICIAL DISTRICT )
BETTY A. DOUCETTE, being first duly:sworn, upon
oath, deposes and states as follows:
1. I.am employed as a legal secretary,with,the
law firm of'COLE, HARTIG, RHODES, NORMAN & MAHONEY; and,_
2. On thel9th day of October:
served a copy of
r 1979',
ENTRY OF APPEARANCE
by mailing said copy in a postage prepaid envelope addressed
to the last known mailing address of parties of interest in this
action, being the following:
October
__William Artus, Esq..
ARTUS & CHOQUETTE,. P.C.
804 West Third Avenue, Suite 100
Anchorage, AK 99501
e /
, ).4 ( ( • • r ,
Betty A. Doucette
SUBSCRIBED and SWORN.TO before me this
, 197 9 , at Anchorace, A aska
19t.
day of
No ary Pub in and for Alas a
My commiss e4ites:
.!
IN THE SUPERIOR COURT
THIRD JUDICIAL
DUNCAN FIELDS, )
)
Plaintiff, )'
)
vs. )
)
KODIAK CITY COUNCIL, Sitting )
as the BOARD OF ADJUSTMENT , )
for the KODIAK ISLAND BOROUGH,)
)
Defendant. )
IlormAUanG8'29111937°9Tie''
ATTLy, F ALASKAAAlBsica
m?'('°77
)
No. 3AN 78-6400 Civ.
MEMORANDUM OF DECISION
4..irsikds Oland borougb
KoplAK, ALAA
ECF 1 VEZ
NOV .1'9 1979
?"0"fill211010141516
A
This is an appeal from a decision of the council of the
City. of Kodiak sitting as a board of adjustment which denied
the appellant's request for a variance from the requirements of
the side lot line setback provisions of the Kodiak Island Borough
zoning ordinance.
Mr. Fields was issued a building permit on October /!, 1977
to construct a substantial addition to his house.
1978 Mr. Fields.was advised by letter that the hous
were in violation of the zoning ordinance. On May
On May 31,
e and addition
31, 1978 the
addition was 98 percent complete. Mr. Fields promptly requested
a variance, which denial gaverise to this appeal.
The appellant relies on the doctrine of equitable estoppel
in arguing that the decision of the board of adjustment should be
reversed and a variance: granted. Without deciding
of equitable estoppel is available in Alaska agains
if the doctrine
t a municipal
corporation it is not applicable in this case because of the .
mistakes made by Mr. Fields Mr. Fields signed the application
for a building permit without making sure that all
facts set forth
on the application were correct. The requirement of "clean hands"
precludes Mr. Fields.from seeking relief in equity.
--
V,D77-71
After reviewing the record I find there is substantial
evidence to support the decision of the board of adjustment.
Keinix v. City of Anchorage, 378 P.2d 406, 411 (Alaska 1963).
The decision of the board of adjustment is AFFIRMED.
The resulting economic waste is a matter to be considered
in a political context; however, it may not be the basis for
a judicial decision.
DATED this c77. day of August, 1979, at Anchorage, Alaska.
VICTOR D. CALSON
Superior Court Judge
I certify that on SS'Ican .a
copy of the foregoing was mailed
to each of the following at their
addresses of record:
Robert Mahoney, Esq.
William Artus, Esq.
1
Sec etary to Judge Carlson
-2-
COLE, HARTIG, RHODES, NORMAN & MAHONEY
HOYT M. COLE
ROBERT L. HARTIG
JAMES D. RHODES
JOHN K. NORMAN
ROBERT J. MAHONEY
Ein.:RNARD J. DOUGHERTY
MICHAEL W. SHARON
- -
G. RODNEY KLEEDEHN
• J. MICHAEL ROBBINS
ROGER H. F3EATY
STEPHEN D. ROUTH
WEV W. SHEA
EDGAR R. LOCKE
C. WALT EBELL
SPENCER C. SNEED
OF COUNSEL:
G. KENT EDWARDS
Harry Milligan
Kodiak Island Borough
Box 1246
Kodiak, AK 99615
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
SUITE 201
717 K STREET ,
:ANCHORAGE, ALASKA 99501
(907) 274-3576
March 12, 1979
KODIAK OFFICE:
202CENTER AVE,. BOX 503
KODIAK. ALASKA 99615
(907) 486-3 1 43
(907) 486-3144
C. WALT EBELL
REPLY TO:
Anchorage
Re:: Planning & Zoning Procedures
DUNCAN FIELDS Epilog
Our File 844-32.1
Dear Mr. Milligan:.
'On March 12, 1979, the appeal from the Board of Adjustment
in the Duncan Fields case was argued before Judge Carlson.
.The matter was taken under advisement and I did not receive
any indication from the judge as to what his ruling might be
on the facts presented. Nevertheless, I would like to make
some suggestions for changes in procedures and perhaps •
ordinances, relating to the zoning review prior to issuance
of building permits and variance procedures.
Duncan Fieldslot contained atotal-of approximately3,924
:feet and is located in.a residential district which has a
minimumlot size of 7,200 square feet. As I under the
ordinances currently in force and effect, the structure on
that lot.is a non -conforming use, and while it is permitted
to remain in use, it cannot be altered or improved in any
manner so as to perpetuate the non -conforming use.
The building permit application submitted by Mr. Fields
incorrectly reflected a lot area Of 5,523 feet with is
approximately 23% smaller than the minimum permitted lot
size. Notwithstanding that fact, zoning approval was
granted for the improvements in question without any attempt
to determine whether a variance might be necessary. Since .
the issue was not addressed, I do not -know whether thelot
area requirement is being waived when application for building
Harry Milligan
March 12, 1979
Page Two
•
permits to improve property are being reviewed or if I am
misinterpreting the requirements. If a substandard size lot
constitutes a nonconforming use, 1 would recommend that
building applications be properly reviewed for that require-
ment. Conversely, if substandard lots are not considered as
a non -conforming use which may not be perpetuated, 1 would
recommend some specific change in the ordinances to authorize
improvements to structures on substandard lots either -with
.or without.a variance requirement.
The primary fact issue in dispute in the Fields' case related
'.to a plot plan on the building permit which reflected a side
-yard setback of 15 feet when the actual side yard setback,
'as reflected in as -built plans on file.in the borough's '
assessor's office was only approximately .5 feet. I have
reviewed the plans that were filed. with the building official
.and those plans, unlike most plans filed with applications
for building permits, did_ not contain'a plot plan. 'In this
.: regard, I would make two suggestions. Since .the building
code requires that two copies of the plans be.filed with the
building official, -I would recommend that one .copy of those
plans be transmitted to the zoning administrator for use in
' connection -with the review of the zoning -requirements. .I
- would'further recommend that plans not be accepted for
filing unless an actual plot plan is included as 'one of the
sheets in the plans and specifications. If an actual plot
plan is not provided with the plans and specifications, the
applicant should be required to submit other existing.as
built plans.
Since Mr. Fields alleged- that--Mr.--Mulitalo prepared the plot
plan in question using information that may have .core from
an as -built survey on file with the borough, or that Mr.
Mulitalo otherwise obtained the information necessary to '
fill in that plat plan, I would recommend that borough and
city staff members be prohibited from filling in any portion
of the application for the building permit that would normally
be filled in by the applicant. Obviously, if a borough or
city staff member completes any portion of the application a
similar argument will be available that the application was
incorrectly completed by that staff member either as a
result of misunderstanding regarding the information provided
or as a result of misinterpreting other information available to
the staff member.
The primary legal theory of Mr. Fields' appeal to the Board of
Harry Milligan '
March 12, 1979
Page Three
Adjustment and to the court was the application of the
doctrine of equitable estoppel. Since estoppel is an equitable
theory 1 question whether it is a matter properlyloonsidered
by the Planning & Zoning Commission or a Board of Adjustment.
My inclination is that equitable estoppel should be designated
as a matter to be raised by a litigant in court at such time
as the litigant is attempting to prevent enforcement of a
zoning decision. Presumably, all the facts necessary for
,
the estoppel would still have to be developed forth e record
-7-on—appeal, but -a court reviewing the matt et may de-termine-
- that a de novo hearing would be necessary since the veracity
of witnesses is often the primary issue and, in the absence
-' of a Board of Adjustment decision on the estoppel;issue, the
. court may wish the opportunity to observe the demeanor of
witnesses. If de novo hearings are required, those.appeals
• involving estoppel would obviously be more expensive from
the standpoint of lost staff -time and hearing preparation.
Since equitable estoppel is a' relatively complex principle
to understand and apply, and -since the body making the
decision may actually be the entity estopped, it would
appear to be a matter better left to the courts. 'If you are
in agreement, it would appear appropriate to modify the
vordinances relating to the Board of Adjustment to[exClude
equitable estoppel from those matters which may be presented
to the Board of Adjustment
The final matter relates to the proper parties in=an appeal
from the Board of Adjustment. AS 29.33.110 provides that
the City Council sits as a Board of Adjustment for the area
within the city boundaries. AS 29.33.130(a) requires,
- however, that -the Assembly provide by ordinance for appeals
from the Board of AdjuS-tment fo the Superior court. regarding the
effect of any decision by the court on the borough. lIn that
matter, the City Council sitting as a Board of Adjustment
was designated as the appellee and the borough was not
joined as a party. Any decision to prevent enforcement of
.the ,zoning ordinances must, of necessity, be one that is
binding upon the Kodiak Island Borough. It would appear,
therefore, that in each case, the Kodiak Island Borough
should he the principal party defending an appeal,by an
applicant and that the city acting as a Board of Adjustment
should be a party only if there is'a disagreementlbetween
the borough and the city regarding the granting or denial of
a variance. •There may be some other circumstances when the
Harry Milligan
*March 12, 1979
Page•Four
city would appear as a party, but in any event I -think we
should have an ordinance delineating that the borough will
always be a party to the appeal from the Board of Adjustment
since they will be charged with the ultimate responsibility
for enforcing the zoning ordinances and, conversely, may be
precluded by -a court order from enforcing those ordinances.
Some of these matters may have already been addressed in the
proposed. changes to the Planning & Zoning ordinan�,ces. If
.--not, you may wish to consider Some appropriate changes,
f particularly with regard to the matter of estoppel and
parties to the appeal. If you would like to discuss this
matter, or if you would like to coordinate any changes in
the provisions of the Uniform Building Code or the Board of
Adjustment ordinance for the City of Kodiak, please advise
me.
•
Kindest regards.
RJM:bad
cc: Richard Garnett, Esq.
Mr. Claire:Harmony
Mr -w -Morris - Lee- -
Very truly yours,
COLE, HARTIG, RHODES,
NORMAN & MAHONEY
BY: �edd)A0
/
Robert . Mahoney.
NOTICE OF APPEAL
kocuak.ISland Bo
, KODIAK. /VAT
9ECEV D
SEP 2 6 1978
PM
?"9110112,11213141516
TO: The Kodiak City Council, sitting as the Board of
Adjustment for the Kodiak Island Borough
NOTICE IS HEREBY GIVEN tha Duncan Field appeals to the
Superior Court for the StatefrA1as1tthe decision of the
Kodiak City Council, sitting as the Board of Adjustment
for the Kodiak Island Borough, which denied his request
for a zoning variance to permit the construction and
maintenance of an addition to the following described
property:
Lots Six A (6A) and Six B (6B), Block Eight (8),
Townsite Addition to the City of Kodiak,
Kodiak Recording District, Third Judicial
District, State of Alaska.
A
This decision was rendered orally on August 24, 1978
Pursuant to A.S. 29.33.130 you are requested to transmit to
the Superior Court Clerk, Anchorage, Alaska, copies of all
documents constituting the record in this proceeding.
DATED this_25th day -of September, 1978.
ARTUS & CHOQUETTE, P.C.
Attorn ys for Duncan Fi ids
By 61.1,176P44.1,,L?.
illiam D. Artus
CITY OF KODIAK
AGENDA FOR THE REGULAR COUNCIL MEETING OF
AUGUST 24, 1978
I , MEETING CALLED TO ORDER
a. Roll Call
II. PREVIOUS MINUTES
a. Minutes of the Regular Meeting of August 10, 1978
III. OLD BUSINESS
a. Second Reading and Public Hearing of Ordinance 527 RE: Campaign Financing
IV . BOARD OF ADJUSTMENT
V. NEW BUSINESS
a. Vacation of Right -of -Way RE: Eggemeyer
b. Transfer of Taxi Permit #5
c. Petition for Annexation •
d. Request for Purchase of Tideland Property RE: North Pacific Processors
e. Change Order No. 2 RE: Aleutian Homes Paving
f. First.Reading of Ordinance 528 RE: Board of Adjustment Procedures
g. First Reading of Ordinance 529 RE: Temporary Trailer Permits
h. First Reading of Ordinance 530 RE: Reclassification
VI. CITY MANAGER'S REPORT
VII. COUNCIL COMMENTS
VIII. AUDIENCE COMMENTS
IX. ADJOURNMENT
2434
n
MINUTES OF THE REGULAR MEETING OF THE COUNCIL
OF THE CITY OF KODIAK
HELD ON AUGUST 24, 1978
1. MEETING CALLED TO ORDER
Mayor Stevens called the meeting to order at 7: 30 p.m. Present were Councilmembers
Eaton, Hatcher , Lechner, Mayberry, White and Woodruff.
Mayor Stevens added the following items to the agenda with Council concurrance:
Resolution 24-78, personal property tax information program and City Manager
termination.
11. PREVIOUS MINUTES
Councilwoman Lechner moved for approval of the minutes of the regular meeting
of August 10, 1978, seconded by Councilman Woodruff. The Mayor questioned
the two motions regarding Change Order No.1 on the Mall Steps project and asked
that they be checked with the tape and amended if:necessary. Roll call on the
motion was unanimously favorable.
111. OLD BUSINESS
a. • Second Reading and Public Hearing Ordinance 527 RE: Campaign Financing
Mayor Stevens read the Ordinance by title and explained that the Ordinance
would place the question of opting out of the State campaign disclosure regulations
on the ballot. Councilwoman Eaton moved for approval of Ordinance 527,
seconded by Councilwoman Hatcher. Mayor Stevens opened the public hearing
and there being no comments from the audience the public hearing was closed.
Roll call on the motion was unanimously favorable.
W. BOARD OF ADJUSTMENT
Mayor Stevens recessed the regular Council meeting at 7: 40 p .m. and convened
_ a Board of Adjustment hearing- concerning an appeal on a_variance request for-:-
sideyarcrsetback: Mr. Artus, the attorney representing -Mr. -Duncan Fields the'
'appellant, Mr. Fisher the attorney for Mr. Wilton White, a property owner protesting
the granting of the requested variance and Mr. Milligan, Acting Borough Manager,
agreed to procedures outlined by the Mayor.
Opening statements were made by both attorneys then witnesses were sworn and
testimony presented. Testimony related to the sideyard set back shown on the
building permit application which indicates a much larger sideyard than actually
exists. The question of estoppel was presented by Mr. Artus and contested
by Mr. Fisher. Lengthy presentation was made and the meeting was recessed
several times. After the conclusion of the closing arguments, Mr. Mahoney
advised the Council on several provisions of State law and the Zoning ordinance.
Councilwoman Lechner moved to uphold the decision of the Planning and Zoning
Commission, seconded by Councilman Mayberry. :Roll call was as follows:
Eaton, no; Hatcher, no; Lechner, yes; Mayberry,yes; Woodruff, yes. Motion
failed. -A brief recess was called while the Attorney researched the voting
requirements on a planning and zoning decision. Councilwoman Lechner moved:.
o grantthe variance-, seconded by Councilman Mayberry.fRoll call was as
follows: Eaton , --yes; Hatcher ,[yes; Lechner, no; Mayberry, -no; Woodruff „-nci.
Mcitibti failed-. The Board of Adjustment was adjourned at 12:05 a.m.
V. NEW BUSINESS
a. Vacation of Right -of -Way RE: Lot 17, Block 16, Townsite Survey
Mr. Jim Eggemeyer had requested the vacation of a 14 -foot road that runs
down the middle of his property. CouncilmaniWhite moved that the Council
allow the vacation, seconded by Councilman Mayberry. Roll call was unanimously
favorable.
b. Transfer of Taxi Permit #5
Councilwoman Lechner moved for approval of the transfer, seconded by
Councilman Woodruff. Roll call was unanimously favorable.
c. Petition for Annexation RE: Lot 17A, USS 3098
Mr. Les Kelso has petitioned for annexation and was requesting that the
Council allow utility connection prior to finalization of the annexation process.
Mr. Kelso questioned certain charges related to utility service and the location
of utility lines.
Councilwoman Eaton moved for approval of the utility connection and proceeding
with the annexation, seconded by Councilwoman Hatcher. Roll call was
unanimously favorable.
d. Request for Sale of Tideland Property RE: North Pacific Processors
Application had been received from North Pacific Processors for sale of
tideland in front of their existing property line. COuncilwoman Lechner
moved that the Council accept the application for sale of property not needed
for municipal purposes and authorize the staff to prioceed in the necessary manner,
seconded by Councilman Mayberry. Roll call was unanimously favorable with
Councilman Woodruff abstaining.
e. Change Order No. 2 RE: Aleutian Homes Paving
Mr. Berg explained the necessity for the Change Order. Councilwoman
Lechner moved for approval of the Change Order Number 2 in the amount
of $39,356.14 with $30,568.82 coming from the Capital Projects Contingency
Fund and $8,751.18 from the General Fund Miscellaneous Contingency Fund,
seconded by Councilwoman Hatcher. Roll call was lunanimously favorable.
f. First Reading of Ordinance 528 RE: Board of Adjustment Procedures
Mayor Stevens read the Ordinance by title. Councilwoman Eaton moved for
approval, seconded by Councilwoman Lechner. Roll call was unanimously
favorable.
g. First Reading of Ordinance 529 RE: Temporary Trailer Permits
Mayor Stevens read the Ordinance by title. Councilwoman Eaton moved for
approval, seconded by Councilman Mayberry.' Roll call was unanimously
favorable.
h. First Reading of Ordinance 530 RE: Reclassification
The Mayor read the Ordinance by title. Councilwoman Hatcher moved for
approval, seconded by Councilwoman Eaton. Roll call was as follows:
Eaton, yes; Hatcher, yes; Lechner, no; Mayberry, yes; White, no; Woodruff,
yes. Motion carried.
i. Resolution 24-78 RE: Annexation
Mayor Stevens read the Resolution which stated that the City would implement
to the extent possible a system of differential taxation in the areas recommended
by the Boundary Commission for annexation and plans would be developed for
providing services to those areas. Councilwoman Lechner moved for approval,
seconded by Councilman Mayberry. Roll call was unanimously favorable.
J. Personal Property Tax Information Program
Councilwoman Lechner moved that the City engage in a program, through its
Councilmembers and administrative staff, to inform City residents of the
4
2436
revenue needs of the City of Kodiak for existing and anticipated programs,
the possible alternative sources of those revenues and the anticipated effects
of the passage of the referendum proposition that would continue to exempt
personal property within the City from Borough taxes tand direct the payment
of equivalent City funds from other sources tothe Borough, seconded by
Councilwoman Eaton. Roll call was as follows: Eaton, yes; Hatcher, yes;
Lechner, yes; Mayberry, yes; White, yes; Woodruff, no. Motion carried.
k. City Manager Termination
Councilwoman Lechner moved that Mr. Widom's termination of August 18, 1978
at 5 p.m. be accepted and that he be paid severance pay through August 31, 1978,
seconded by Councilman Mayberry. Roll call Was unanimously favorable.
VI. COUNCIL COMMENTS
Councilwoman Hatcher requested information concerning the amount of money'
that will be left after completion of the mini parks from a grant.
Councilwoman Lechner read a letter from Kodiak Little League requesting
construction of a softball diamond on the parkareaon Simeonoff Street.
VII. ADJOURNMENT
The meeting was adjourned at 12:40 a.m.
ATTEST:
LEAK
KODIAK ISLAND BOROUGH
MEMO R`.A N D U M
DATE: August 24, 1978
TO: Lutena Mulitalo
FROM: Harry Milligan
SUBJECT:
Attendance at Board of Adjustment Hearing
RE: V-78-055 - Duncan Fields
On Thursday, August 24, 1978, I spoke wit'ri Mayor Stevens
concerning your attendance at the Board of Adjustment
Hearing to be held at 7:30 p.m., Thursday, August 24, 1978,
in the Borough Assembly Chambers.
Mayor Stevens has requested you attend the hearing and be
available to answer questions concerning your knowledge of
the facts relating to the building permit issued to Mr.
Fields.
Based upon the Mayor's request you will be required to attend
this hearing as a part off your duties as a Borough employee.
Please make the necessary adjustments in your. schedule to
accommodate this hearig.
Because this is directly related to your former duties, you
will be compensated for your time in accordance with the
Kodiak Island Borough Personnel Regulations.
KODIAK ISLAND BOROUGH
P a Z COMMISSION
APPEAL PACKET INDEX
CASE V-78-055
I. Letter from William D. Artus to P a Z Commission.
II. Letter from City Clerk to Planning Department regarding
Appeal.
III. Appeal from Duncan Fields to City Clerk.
IV. Resolution.
V. Minutes
VI. Planning Commission Information Packet.
VII. Letter from Planning Director Regarding Building
No. 4485, Lots 6A and 6B, Townsite Addition, 10-4
VIII. Letter from Stanley Fischer Regarding Protest of
Request.
IX. Letter of Appeal from Duncan Fields.
X. Building Permit No. 4485
XI. As -Built Survey.
XII. Kodiak Recording District Information.
Number of
Pages
2
11
Permit 2
-77.
Variance
,-NOT
TO: Stan Fischer, Attorney at. Law
William Artus, Attorney at. Law
Harry Milligan, Planning Director
FROM: Libby Presnall, City Clerk
SUBJ: Board of Appeal for Fields
DATE: July 28, 1978
The Board of.Appeals on the Duncan Field variance•hasbeen set for August
24, 1978, at the regular Council meeting starting at 7:30}p.m. in the
meeting room of the.Kodiak Municipal Building.
GERALD W. MARKHAM
STANLEY T. FISCHER
MARKHAM AND FISCHER
ATTORNEYS AT LAW
TONY'S BUILDING, SUITE 205
P. O. BOX 806
KODIAK, ALASKA 99615
July 27, 1978
Planningand Zoning Commission
Kodiak Island Borough
P.O. Box 1246
Kodiak, Alaska 99615
TELEPHONE
(907)486-4194
Re: Proposed Findings,.Conclusions, Decisionha.nd Recommendation
of the Planning and Zoning Commission.
(Our File No. 103)
Gentlemen:
_ .
For your consideration I submit these proposed findings
conclusions, decision and recommendation for theLplanning and
zoning commission in support of its denying aPproval of a
side yard variance .request submitted by.Duncah Fields.
' 1
FINDINGS, CONCLUSIONS:, DECISIMAND RECOMMENDATION
After hearin.w on Jtly 3;,1978, a recuest for
a set back variance by Mr. Duncan Fields to sanction
construction of'a building.addition which. encroaches into
a side yard,.Lots 6A and 6B, Block 8, Kodiak Townsite Addition,
the commission finds: -
(a) Mr. Duncan Fields made applicatLnifor a
building permit andcertificate.of occupancy for purposes
of obtaining authority to. add an addition to his house on
Lots 6A and.'6B, Block.8., Kodiak Townsite.
(b) Mr. Duncan Fields supplied information on
the "Application for Building .Permit and.CertifiCate of.
Occupancy" that he was building a one story addition, twenty
feet length and width and heighth on Lots 6A and 6B which
. _
he stated totaled-5;523*sguare feet iii size, and that his .
side yard was 15 feet on eit4er.side.of .his original
structure.
(c) Mr. Duncan. Fields in fact.built a Itwo story
addition substantially exceeding twenty feet in length and
width and heighth On Lots 6A'and 6B which totaledspproximately
3,8,45 square feet in size with aside yard.betWeein .5 and
1.3 feet on one side of. his:original.structurei and less
than 15 feet on the. side '.(Dfthat structure:
(d) Mr- Duncan Fields seeks a side yard variance
after he has.substantially,completed his.addition
: 1
•
Page Two:
The commission concludes: r;
(a) Mr:. Duncan Fieldswould not have been issued
a permit but for the 'misinformation supplied" by him to building
and planning officials.
(b) By building .his .addition: as 'he
Fields has. violated' the -side.. lot requirements
' Kodiak Island Borough Code- -§ 17 . l8 ..04.0 .`
did, Mr,'Duncan-
coiitained - in
(c) By.buiiding his addition as heldid, Mr: Duncan
Fields has violated the prohibitionagainst significant
alteration aridfor enlargement of a. non-conforming;.use contained
in Kodiak IslandBoroughCode-
§:17.36,010.
(d) Mr: Duncan Fields '.has -failed ..to arid -°cannot
meet the standards for approval of a variance asrcontained
in Kodiak Island Borough -Code
The -commission decides. that the-re"cquest for a
set back variance is -denied.-
The commission intends that on the`.basis of:. any
part . of any one_ of -its findings a -violation f the -Kodiak
Island Borough Code, is established, that- isdetermination . .
,not, to grant a .variance be ,affirmed.
--The-commission recommends that the:Kodiak City
Council -acting. as 'the - Board - of" Adjustment af,f irm -the findings,
' conclusions. and.- decision `of the .commission. and to seek,
removal of.the .offending structure.
- - I
DATED-:
,- 1978.
Wilton White ' ,
Harry Millegan
KODIAK -IS'BOROUGH -
PLANNING : & 'ZONING, COMMISSION
Commission iMember
-Commission 'Member
Commission'Member
Commission Member
. Comrriission Member
KISLAM ;0 UGH
DATE: July 22, 1978
TO: City Clerk
FROM: Planning Departmen
SUBJECT: Appeal Packet
RE: Case V-78-055, Duncan Fields
Telephones 486-5736 - 486»5737 — Box 1246
KODIAK, ALASKA 99615
Enclosed you will find the following documents as
per your request of July 12, 1978.
The remainder of the documemts
upon completion.
be forwarded
GERALD W. MARKHAM
STANLEY T. FISCHER
MARKHAM AND FISCHER
ATTORNEYS AT LAW
TONY'S BUILDING, SUITE 205
P. 0. BOX 806
KODIAK, ALASKA 9 9 615
July 19, 1978
Mr. Harry Millegan
Planning Director
Kodiak Island Borough
:P.O. Box 1246
Kodiak, Alaska 99615
Dear Mr. Millegan:
TELEPHONE
(907)486'4194
k-neuta: island Borougb
KODIAK, ALAtKA
RfeEititi)
JUL 2 4 1978
11819001firZir21814i516
Re: Fields' Appeal
On July 3, 1978, the Planning and aining
Commission by a 6-0 decision voted against approval of a
variance request made by Mr. Duncan Y: Fields. It appears
that on July 11, 1978, Mr. Fields filed a noticeof appeal
under KIB Code 517.66:180.
1 I
It is now the obligation Of_the...staff f.the
Planning and Zoning Commission to prepare a repoirt and file
it with the city clerk.. KIB Code. 517,66.190 further provides
that the aforesaid report "...shall state the deCision and
recommendations of the commission together with the reasons
for each decision and :r.ecommendation" and "(a)111 Idata
pertaining to the case -shall accompany the repOrti.
On behalf of Mr. Wilton White, who protested
the.variance request, we urge a most expeditious [compliance
with this provision. -We further submit that the 'recording .
tapes of the Planning and ZoningCommission meeting are an
important part of the record an this' matter and must be.
forwarded to the City Council of Kodiak acting as the Board
of-Adjustmentto consider if.it desires todo so,H, in any
event, the recording tapes must.be preserVe&fOr appeal,
if any, from the'decision'of the Board'of Adjustement.
I 1
Our urging expeditious preparation of yOur
report works.to the benefit of allparties. .Mr. White
desires prompt resolution of'this Matter. At hisPeril,'
Mr. Fields obliviously continues to complete his addition.
We would appreciate receiving a copy'ofyour
report and accompanying documents as •soon as it is prepared.
Thank you.
Sincerely yours,i
MARKHAM &"FISCHEA
By:
STF/bh
cc: Wilton White
Stanley T. F Scher
WILLIAM D. ARTUS
WILLIAM L. CHOQUETTE
July 17, 1978
City Clerk
City of Kodiak
Kodiak, Alaska
Re:
Dear Clerk:
LAW OFFICES OF
ARTUS 8 CHOQUETTE, P. C.
ATTORNEYS AND COUNSELLORS AT LAW
80S WEST THIRD AVENUE, SUITE 100
ANCHORAGE, ALASKA 99501
99615
Duncan Fields
Lots 6A and 6B,
Kodiak, Alaska
TELEPHONE
274-4626
AREA 907
tkocaal: Island Borough
KODIAK, ALATA
RECFIVE1
JUL 2.0 1978
PM
7181911011b12,11213a4s5,6
1
Block 8, Townsite Addition,
- 219 Mill Bay Road
By letter of July 11, 1978, Mr. Duncan U. Fields filed a
Notice of Appeal from a decision of the Planning and Zoning
Commission for the Kodiak Island Borough which denied his
request or application for a zoning variance in relation
to an addition he was constructing on the above -referenced
property. That Notice of Appeal was filed pursuant to
A.S. 29.33.120. That appeal was also intended to cover a
stop work order issued by the Planning and Zoning Commission
on June 26, 1978. This letter will follow up the Notice of
Appeal filed by Mr. Field's,
You are requested to notify me if there are any defects in
the appeal filed by Mr. Fields on July 11, 1978. 1 If there
are any defects in such filing you are requested to extend
the time for filing a Notice of Appeal for a reasonable time.
If the appeal was properly filed, you are requested to notify
me of when the Board of Adjustment will be meeting for the
purpose of taking testimony and evidence relative to whether
a zoning variance should be granted. Mr. Fields has previously
informed the Planning and Zoning Commission of the factual
situation underlying the issuance of a building permit to him
so I will not address that matter further.
This letter further requests that the hearing to be conducted
by the Board of Adjustment be held no sooner than 60 days
from the date of this letter so that sufficient time will be
available for Mr. Fields to prepare his presentation. Please
City Clerk
July 17, 1978
Page Two
forward to me copies of all correspondence
regarding this appeal.
Very truly yours,.
ARTUS & CHOQUETTE, P.C.
William D. Artus
WDA : j pm
cc: /Duncan Fields
,,Planning and Zoning Commission
Board of Adjustment
Harry Millegan, Director of Planning
and other documents
TO: Planning Department
Kodiak Island Borough
FROM: City Clerk )2C
SUBJECT: Planning and Zoning Appeal
DATE: July 12, 1978
The attached appeal from Mr. Duncan Fields. Please provide the City with
copies of the staff work provided to the Planning and Zoning Commission and
a copy of the minutes of the Planning and Zoning meeting Of July 3, 1978.
It would be appreciated if the necessary paperwork could 13e received by
July 20, 1978 so that a Board of Adjustment can be scheduled.
July 11, 1978
Cit Clerk
Gity of Kodiak
Kodiak, Alaska
Dear Clerk:
On June 27, 1978 I conferred with Mr. Harry Millegan, Director of,Planning in an effort
to determine what was necessary to appeal the decision of the planning and zoning comm-
ission on June 26, 1978 to issue a stop work order on the addition to the house located
at 219 Mill Bay Road, Lot 6A & 6B, Block 8Townsite addition, Kodiak* Alaska.
A notice of appeal was filed under State Statut*itle 29, Article'41 section 29.33.120 was
delivered to the City clerk, City of Kodiak, Kodiak, Alaska at approximately 11:15 A.M.
On June 27, 1978.
Monday July 10, 1978 I conferred with Ms. Libby Premien by phone'regarding the appeal
to the stop work order and also to determine what was necessary to file an appeal to the
Planning & Zoning CoTmissions's action on July 3, 1978, denying the zOning variance. I
was informed by Ms. Presnell that the action of the Planning & Zoning Commission on July
3, 1978 denying the variance nulified the appeal to the stop work order.
By this letter I am filing a notice of appeal to the Board of Adjustment objecting to the
Kodiak Borough Planning & Zoning Commission's decision of July 3, 197,8, to deny my request
for a zoning variance on lot 6A & 6B, Block 8,. Townsite addition,,219 All Bay Road, Kodiak,
Alaska.
This appeal is based on the contention that the planning & Zoning CoMmission refused
to follow their own specific instructions, intrepretations and directions to the planning
office staff in the application of Code 17.45.030, and the refusal of the planning and
zoning Commission to approve the actions and recommendations of the planning staff after
a building permit was issued on the basis of the Commission's instructions for applying
code 17.45.030 to setback variances.
This note of appeal is intended to cover both the stop work order and the denial of a
zoning variance. If there are any problems with this notice of appeap., please notify
me promptly and I will take steps to correct any defects in this filing.
Sincerely
Duncan U itelds
KODIAK ISLAND BOROUGH
PLANNING AND ZONING COMMISSION
RESOLUTION NO. V-78-055
A RESOLUTION OF THE KODIAK ISLAND BOROUGH PLANNING AND
ZdNING COMMISSION DENYING A VARIANCE TO PERMIT THE CONTINUED USE
OF A RECENTLY CONSTRUCTED ADDITION TO AN EXISTING NONCONFORMING
DWELLING STRUCTURE WHICH ENCROACHES INTO A 'REQUIRED SIDE YARD.
WHEREAS, a petition was received from Mr—D_uncan Fields
requesting a Variance to permit the continued use of a recently
constructed addition to an existing nonconforming dwelling struc-
ture which projects into a required side yard, and,
WHEREAS, notice was published, ndtices were mailed, and
a public hearing was held, and,
WHEREAS, the Commission found information provided 'by
the applicant on the building permit appliCation indicating the
proposed building location was misleading and inaccurate as it
indicated a side
of 15 feet while
imately 1.3 feet to 2.4 feet, and,
yard set back on the south sJ4e Of the property
; 1
the actual side yard was found to be from approx-
WHEREAS, the Commission found Section 17.66.090 (b) of
the Kodiak Island Borough Code of Ordinances requires that all
applicants for a variance provide written proof of existence of
four specific conditions applicable to thevrdperty under consid-
eration, and,
WHEREAS, the Commission found the letter submitted by
Mr. Fieldfailed to set forth the finding S required by Section
17.66.090 (b) of the Kodiak Island Borough !Code of'Ordinances, and
WHEREAS, the Commission following a public hearing, was
unable to find fact to support the granting of a variance as re-
quired
-
in Section 17.66.090 (b) of the Kodak Island Borough Code
of Ordinances.
NOW, THEREFORE, BE IT RESOLVED by; the Kodiak Island
Borough Planning and Zoning Commission that this request for a
variance to permit the continued use of a r:ecently constructed
addition to an existing
a required side yard on
dwelling
Lots
Subdivision is hereby denied
1.
The
information
structure which. encroaches into.
,.• :
i
6A and 6B, Block 8,Kodiak-Townsite•
for the followiin 'reason:
1
provided by the
1
applic!ati
I
Fields on the original
applicant, Mr.
on for a building
alt 7
KIB P & Z COMMISSION.
RESOLUTION V-78-055
ATTEST:
.MIIIIM...EL
PAGE 2
permit dated August 4, 1977, indicating the side yard setback
was found to be incorrect.
2. The building permit application submitted -by Mr..Fiel•ds
indicated the combined lot area within Lots 6A and 6B as
5,523 square feet, whereas, during the hearing it was found
that the actual area within Lots 6A and 6B was only 3,924 ±
square feet.
3. The applicant failed to provide information required in
Section 17.66.090 (b) of the Kodiak Island Borough Code of
Ordinances for consideration of a variance..
4. Following a public hearing and review of all of the informatioi
presented the Commission was unable to find fact to support
the requirements of Section 17.66.090 (b) of the Kodiak Island
Borough Code of Ordinances which the Commission is required
by law to find before any variance request can be granted.
ADOPTED THIS THIRD DAY OF JULY, 1978.
KODIAK I
& Z ' Secretary
LAND BOROUGH
PLANNING AND ZONING COMMISSION
B
Commis ;•n Chairman
•
KODIAK ISLAND BOROUGH PLANNING & ZONING MEETING
MINUTES FOR JULY 3, 1978, at 8 p.m.
Duncan Fields Variance Hearing
I. CALL TO ORDER
11.
Meeting was called to order. by chairman, Mr. Dan Busch
Assembly Chambers, at 8 p.m., July 3, 1978.
ROLL CALL
PRESENT
Mt. Phil Anderson
Mr. Ron Bali
Mr. Dan Busch, Ch
Mr. Gene Erwin
Mk. John Pugh
Mr. Don Baker
III. STAFF PRESENTATION
ABSENT
in the Borough
Mt. Tony Perez; Excused
for vacation
Mr. Milligan made the staff presentation. He referred to the staff
analysis prepared by the Planning Department, and submitted copies of
the building permit, and the building plans approved by the City
Building Inspector.
Mr. Busch asked "who approved the building permit in the Planning De-
partment?" Ni. Milligan responded that "the zoning approval was
given by Mr. Mulitalo, based upon the policies of the planning and
Zoning Commission, and directions given to the Planning staff.
A discussion developed between the Commission and Mr. Milligan con-
cerning the as built surveys7 the building permit application, the
building size and location, and the building plan. ;There being no
further discussion, chairman Busch opened the public hearing.
PUBLIC HEARING
Mr. Duncan Fields came forward and stated: There is a curbcut in front
of the property. He purchased the property in 1972! from a Mks-, Louis
Baker. .He thought the house to be about 25 years oid, and stated that,
the building is constructed according to the plans. He stated that
Mt. L. G. Schneider constructed the foundation based upon the approved
plan. The addition was designed by a Mr. Mike Schwartz who was em-
ployed at that time by Mr. Rolland Jones.
Mr. Fields stated that following a field inspectionto the site where
he and Nr. Mulitalo measured the building, Mr. Mulitalo filled in. the
plot plan information in the upper right hand portion Of the building
permit application.
He stated that when he received the Planning Department letter of
May 31, 1978, the construction was approximately complete. Other
than some bathroom fixtures, the structure was complete, and had been
occupied for approximately 2 weeks. He felt that tie construction is
not detrimental to any of the neighboring properties.
Mr. Fields stated that he had asked Mr. Mulitalo for a letter as to
whether a variance was required. Nr. Mulitalo did not issue a letter,
but he did write on the permit "no variance was required."
A discussion developed as to who filled in what information on the
approved building permit application? It was deterMined that Mr.
Fields, Mr. Mulitalo, and Mr: Slagle filled out thejapplication. Mr.
Fields stated that he filled out the contractor -owner's information,
and the class of work section. Mr. Mulitalo &Hr. Slagle filled out
the rest of the application.
PLANNING &,ZONING MINUTES OF JULY 3, 1978
Mr. Joel Davis, Mr. Fields son-in-law, came forward! and stated that
he was unaware, ofany concerns of the neighbors aboUt the-cOfistruc-
tion. He stated that he and his wife had contacted! Mr. & Mts. Wil-
ton .White about the construction plans, prior to the start of con-
struction. He had also contacted the Kendel's. He, stated that the
Fitzgerald's live .up above the White's and are not affected, and he
did not contact or know the Robbin's.'
Mr. Stanley Fischer, attorney-at-law, came forward in f of Mr.
and Mrs. White, to object.to the granting, of the variance sought by
'Mt. Duncan Fields. He stated that his first concern, as set out in
his letter, as a defect in the publice notice. Thei notice stated
the variance sought is to permit construction, while testimony al-
ready presented indicated construction is virtually! completed.
-Mt. Fischer stated that he wished the Commission to weigh the eco-
nomic gains of Mr. and Mrs. Fields verses the economic losses of
the White's during the Commissions deliberations, whichare:
1. He contends the application, dated October 4, 1977, is
replete with misinformation, and therefore, not valid.
2. That side yard requirements in the Kodiak Island Borough
code section 1718.040, have been violated because con-
struction is virtually completed.
3. Because of the significant alteration, and enlargment of
Mr. Fields nonconforming use, Kodiak Island Borough code
section 17.36.010 has been violated.
4. The general lot size requirements of the code have been
violated.
5. The application for a variance does not contain the re-
quired information set forth in Kodiak Island Borough
code section 17.66.090.
Mr. Fischer stated that he would expand on each of the above listed
items. He wished to address:
1. Under the class of work, a significant number changes have
been made. He explained the deficiencies which he felt
existed in the application and the plot plan. He pointed
out the deficiencies between the application and the re-
cently completed, as built survey, of the property. He
stated the conclusion, that no variance is required, is
incorrect. Only the Commission can grant a variance.
Administrative officials have no authority to waive the
variance requirements.
The existing structure was grandfathered in by virtue of
its pre-existence, but the significant addition does not
enjoy that same right.
He quoted section 1736.010 B, continuation provisions,
and elaborated on the effect of this section on Mr. Fields
building. He further elaborated on his contention that
the code does establish minimum lot sizerequitements for -
buildings, lot coverage, and building size.
Mr. Fischer explained the variance application require-
ments of section 17.66.090; subsectlanA!&.B of the
Kodiak Island Borough Code of Ordinance.! He quoted from
• subsections A & B, and explained the deficiencies in Mr.
Fields application. He felt the staff, in their applica-
tion review, had -found the same deficiencies as indicated.
in their written report, and he felt that there was an
economic gain and loss with respect to the view from the
Fields and the White's properties.
PLANNING & ZONING MINUTES OF JULY 3, 1978
Page 3
He summarized by stating, he felt that the staff analysis
reflected the permit had been issued in error, and that
Mr. Fields should have recognized the error.
A discussion developed between Mr. Fischer, Mt. Milligan and the
Commission concerning the actual size of the property in question
owned by Mr. Fields.
Mt: Wilton White carne forward, and explained the changes in ownership
and character of the neighborhood during the past 30 years. Ile stat-
ed that two of the immediately adjacent property owners, both he and
Mr. Robbins, objected to the variance. He explained his interpreta-
tion of the conversation between Mr. Fields daughter and son-in-law,
and he and Mrs. White. Had he known they were proposing a two story
addition to their building he would not have given them permission to.
get to the rear of their property by crossing over his lot, nor would
he have let them use his yard for storage of their materials. Mr.
White explained that when it became apparent that the building was
going to be more than one story in heighth, he had his mother-in-law
call the City Building Department and speak to Mt. Slagle, who told
her that the building was being built according to the plan. (This
was in February, 1978.) Once he was no longer bedridden and again
able to get around, Mt. White went up and talked to the City Build-
ing Inspector, who assured him the city's concern was that the build-
ing be constructed according to plan. Next, he went to the Borough •
Planning offices and talked to Mr. Mulitalo, who assured him that
everything was in order, and that it was a perfectly valid building
permit.
After about 3 weeks, Mr. White went back to the Borough to talk with
Mt. Mulitalo, who was not available due to another assignment. In
early May, when Mr. Mulitalo was still not available, he asked to
talk with Mr. Milligan. Mr. Milligan assured him that he would look
into the situation, which apparently he did.
Mt. White stated that he felt that the building was built in viola-
tion of the codes, and hoped that the Commission would correct the
situation. At no time did the Fields indicate to him that the build-
ing would be of a size that was constructed.
Chairman Busch read two letters into the record. One from a Mr. Glen
A. Bobbins, and one from Mr. Mike Fitzgerald, both objecting to the
requested variance.
Mr. Duncan Fields came forward, and stated that he wished to clear up
a couple of points. He explained the size of both the first and se-
cond floors of the addition, and explained the new roof line Above
the addition is approximately 6' higher than the original roof line.
As to the loss of view, he stated that he used to have a beautiful
view until the Cherier & King building was built, and the rest of his,
view was lost when the State building was built. Any change in any
buildings built downhill below his property would further hamper his
view.
As to the plot plan, Mr. Fields stated that he did not know how
accurate the information.has to be. He didn't recall where he got
the lot size information, and the as -built survey he provided is the
first accurate survey of the property that has been made.
A discussion developed between Mr. Fields and the Commilsion concern-
ing the building. Mr. Fields stated that the bnilding With the addi-
tion is appraised, from the plans, at approximately '0.00,000. The as
built survey, dated July 1st, is required to close the loan. Mr.
Fields stated that the changes in the class of work were made by he
and Mt. Slagle when the building plans were being revieWed.
PLANNING & ZONING MINUTES OF JULY 3, 1978
Page 4
Mr. White came forward and asked for a verification as to the heighth
of the building. He also stated that he felt that the original plans
.were for a one story building, and that later it was decided to build
a two-story building. He agreed with Mr. Fields that view is not the
primary concern, but rather, whether or not the new construction is
legal.
Mr. Fields commented on the code requirements for the foundation, and
the addition.
Mr. Fischer came forward and recommended that the Commission examine
the plans and the size of the addition.
Chairman Busch closed the public heAring.
The Commission indicated that they had questions which could only be e
answered by Mr. Slagle and Mr. Mulitalo/ dealing with the information
on the building permit application and the plan. Chairman Busch de-
clared a 5 minute recess, and directed Mr. Milligan to call both Mr.
Slagle and Mr. Mulitalo, and ask that they come to the meeting in
order to answer questions.
Following the recess, Mr. Mulitalo appeared to answer questions. He
explained that most building permit applicants cane to the Planning
Department first. The information on the right hand side of the
application is filled out in the Planning Department. He explained
the responsibility of the Building Official and Zoning Official. He
responded to various questions concerning his involvement in review-
ing the building permit application. He explained those items which
he reviews in approving a building permit application, and he ex-
plained that the building plans were not submitted to the Planning
Department at the time the application was reviewed, and that the
Planning Department has implemented a new policy whereby the Plan-
ning Department will not review any new building permit applications
unless the building plans are also available for review.
Mt. Pugh asked Mt. Mulitalo to respond to the questions raised by
Mr. Fischer concerning expansion of a non -conforming use. Mr. Mal-
ta1o explained his understanding of the Commission's direction to
the staff, with respect to the application of section 17.45.030 of
the Borough Code of Ordinances. Mr. Pugh concurred with Mr. Muli-
talo's explanation of that section, and that the staff was not given
limitations as to how broad this section was to be applied. He
stated that it was specifically intended for the Aleutian Home Sub-
division, but probably could not be limited to just that subdivision.
Mr. Anderson stated that he agreed with Mr. Pugh, an he also felt
it is the responsibility of the property owner to provide accurate
information on how much land he owns, not the staff. The staff has
to rely on the information they are provided.
Mr. Ball agreed with Mr. Anderson. He also stated the 15' side yard
information was provided by Mr. Fields, not by Mr. Mulitalo. Mr.
Pugh stated that Mr. Fischer has asked that the Commission deny the
request based upon five points. He felt that:
1. The building permit was issued with misinformation.
2. He also had some questions on section 17.36.010, which
might refer to a more close review of the code. He
stated that he would prefer not to make a decision at
this time.
Mr. Ball stated that the Commission has to make a decision sometime,
it might just as well be tonight.
•
PLANNING & ZONING MINUTES OF JULY 3, 1978.
Mr. Fischer asked to address some of the concerns of the Commission.
He explained that the Commission cannot amend the Ordinance,. by
policy. 'Ib grant a variance.,.four conditions must be met. He felt
that the staff had found two of those conditions had not been met,
.and that he personally felt ne had proven that three Of the four re-
quired conditions had not been met. .
Mr. Fields dame forward and further elaborated on the information he
had filled-in on the building permit application under the class of
work section. He also commented on the original survey plot plan.
It was moved by Mr. Ball and seconded by Mr. Andersonthat the
Commission deny the variance to allow the continued use of a recent-
ly constructed addition to an existing structure in an R-3 zoning
use district by Mr. Fields.
Following a comment by the staff on the effect of a motion to deny,
Mr. Ball moved to amend his motion to grant the variance. Mr. An-
derson agreed to the change.
Chairman Busch asked for a Roll Call vote on the main
changed, to grant the variance.
Mr. Anderson - No
Mt. Ball - No
Mr. Busch - No
Mt. Erwin . No
Mr. Pugh - No
Mt. Baker - No
The motion failed by unanimous Roll Call vote.
1110
ion, as
IV. ADJOURNMENT
The Chairman adjourned the meeting at 11:30 p.m. approximately..
ATMS ATTEST:
4
APPROVED
June 27, 1978
City of Kodiak
City Clerk: Libby Presnell
City Offices
Kodiak, Alaska
Dear Clerk:
This party is giving notice of filing an appeal to the board of adjustment
objecting to the Kodiak Borough Planning and Zoning Commissions decision
of June 26, 1978 to place a stop work order on the addition construction
located at 219 Mill Bay Rd., lots 6A &' 6B. This is under State Statute
title 29, dealing with the regulating of Municipal CorpOrations, Article
4 Planning, Platting and Zoning, pursuant to Sec. 29.33.120. • Such an
appeal stays any enforcement proceedings, such as a stop work order, uhless
the board or a court issues an inforcement order based on a certificate
of imminent peril to life or property
S cerely,
Duncan U. Fields
KODIAK ISLAND BOROUGH P & Z COMMISSION MEETING
June 26, 1978, at 7:30 p. m.
I. CALL TO ORDER
The Vice -Chairman, Mr. Phil Anderson, called the meeting of June 21, 1978
and continued to June 26, 1978, to order at 7:30 p. m..in the Borough
Assembly Chambers, 700 Mill Bay Road.
II. ROLL CALL
PRESENT
Mr. John Pugh
Mr. Gene Erwin
Mr. Ron Ball
1r. Phil Anderson
ABSENT
Mr. Don Baker, excused
Mr. Dan Busch, excused
Mr. Tony Perez, excused
The Chairman announced a quorum was established.
Chairman Anderson announced that any person wishing to:continue their cases
to the next regular meeting may do so as there was only a 'quorum present and
it would require the vote of all members present to afjorove any action coming
before the Board. .
Mr. iunca ie s, a petitioner for a variance requested that his case was
only a minor problem and he would postpone his case until the next regular
meeting.
III. OLD BUSINESS
A. Mr. Ron Doubt, who received on May 17, 1978, final approval of a resubdivision
of Tract E, Miller Point Alaska Subdivision, requested'an amendment to the
approved conditions of his subdivision. Mr. Marmaduke, Borough Engineer„
explained the affect of the conditions, followed by Mr. Doubt who explained
that since he does not own Lot 8 Block 2, Mountain Vie W Subdivision First Addition
that'he could not plat the 40access easement to Tradt ELthat he owned since
the property was in ownership other than his own. Following the discussion
of the .problems associated with the condition, Mr. Ball moved and seconded by
-Mr. Pugh to delete the 40'requirement for dedication by Mr. :Doubt the 40'
access easement on Lot 8 Block 2 Mountain View Subdivision First Addition and
to include that Lot E-1 cannot be further subdivided uhtillaccess is obtained
and a 60' roadway is provided. Motion passed by unaniMous roll call vote.
B. S-78-035. A request for final approval of the Elderberry Heights Subdivision
in USS 1396, Lots 1-13 Block 1 and Lots 1-10 Block 2,1 the extension of
Selief Lane from its terminus with the Alderwood Subdivision to the boundary.
of USS 3468 and Mozart Circle; a road wholly within Blotk 2 -of the proposed
subdivision. Mr. Marmaduke, the Borough :Engineer, presented the Staff report
based upon a memorandum prepared by the Planning DepartMent. A discussion
developed between the Commission and Mr. Marmaduke concerning the Staff's
recommendations and conditions for the development. Thprelbeing no one else
to be heard and no further discussion the Chairman asked for a motion. It
was moved by Mr. Pugh and seconded by Mr. Ball that the Commission accept the
final approval of Elderberry Heights Subdivision of USS 1396 Lots 1-13 Block 1
and Lots 1-10 Block 2 and the extension of Selief Lane from its terminus in
the Alderwood Subdivision to the Boundary of USS3468 and Mozart Circle; a road
wholly within Block 2 consisting of 20 lots and with ti* stipulations of Staff
that 1) a temporary turn -around at the end of Selief Lane with aradius of
50'; that an encroachment permit be obtained from the Borough or the City for
the turn -around 2) dedication of all streets within the subdivision;
3) acceptance of all sewer and water lines by the Citylof1Kodjak and 4) Lots
in Block 1 being restricted to single family use. Motion passed by unanimous
roll call vote.
IV. NEW BUSINESS
1. PUBLIC HEARINGS
S-78-040 A request for vacation and replat of Lots 5A and 5B to Lots 5C and 5D
USS 3099 containing 1.27 acres, requested by Margaret Emmons and Mr. Dennis
Murray, Executor for the Pete Venaas Estate.
a
P & Z. MINUTES, JUNE 26, 1978
r
r
Page 2
Mr. Wilton White appeared and objected to the Planning Commission's action in
the Duncan Fields variance request in postponing Mr. Field s request to the
next regular meeting. He felt that the matter had beenrscheduled for hearingl
during this meeting and that_ the'2bommission should have taken action rather
than postponing. He felt that this situation had gone on for some time and
that the Borough Planning Staff should have taken action to have stopped
construction on the building last Fall as opposed to waiting till thit Spring
with a variance. He felt that with further delays the,building could be
completed prior to any hearing. Chairman Anderson explained wliphe had asked
if anyone wished to postpone due to the presence of only a quorum. A'discussion.
developed between Mr. White, the Commission and the Starf as to what action the
Commission could immediately take, whether or not stop wortorders could be
posted and when an appropriate time for rehearing thislcate at.a special meeting
woulthbe.
At the conclusion of the discussion, the Chairman directed Staff to contact Mr.
Fields and see if Mr. Fields would be available on the following evening to
this he •L
4 -
Z-78-040. Mr. Mulitalo presented the Staff analysis bated upon a memorandum
prepared by the Planning Department. He explained that in 1973, the late Mr.
Venaas started this replatting process and prior to his;death, Mr. Venaas
sold Lot 5A and most of 5B to Mrs. Emmons. At this time, Mr. Murray, the
Executor of Mr. Venaas' estate is.trying to plat the property along the lines
of the previous sale. Mr. Dennis Murray came forward and lexplained that as
Executor for the estate he is trying to carry out the last wishes of Mr. Venaas
and see that the heirs of the estate received their inheritance. ,
Mr. Okey Chandler informed the Commission the location of the water and sewer
lines and information about the past history of the property.
1
, 1
Mr. Tom Moyer objected to the plat. He stated that there are two structures
and two families on proposed Lot 5B with two separate sept* systems on the
property. He felt that 11,098 sq. ft. lot was too'small for two buildings.
A discussion followed between the Commission, Mr. Moyerand Mr. Chandler
concerning the buildings and lot sizes. It was moved by Mr. Ball and seconded
by M. Erwin that the Commission grant the approval of the vacation and replat
of Lots 5A and 5B and that we grant his lot variance; alsol that the trailer
now occupied by Mr. Morley can only be occupied by him until he decides to.
vacate... At that time the trailer must be removed or proper procedures be
taken. Motion passed by unanimous roll call vote.
S-78-046. Vacation of a utility easement within Lots 19A and 21A Block 5
Erskine Subdivision USS 562 requested by Dr. Knox Kristie. Mr. Mulitalo
made the Staff presentation based upon the analysis oqthe request prepared
by the Planning Department. Chairman Anderson opened the public hearing.
Dr. Christie came forward and offered to answer any quettions about the proposes
vacation. Mr. Pugh asked if Dr. Christie planned to bUi1d across the lot line
and why he did not apply for a vacation and replat. A discussion developed as
to whether or not the lot line common to Lots 19A and 21Acould be vacated as
well as the requested easement. Dr. Christie offered no objection to the
proposed vacation of the lot line. 1
Mrs. Wiley, a neighboring property owner, questioned whether or.not the requested
vacation would affect her property. After discussion, it was determined that
the requested vacation would have no affect on her property.
It was moved by Mr. Pugh and seconded by Mr. Ball that the Commission vacate
the utility easement within Lots 19A and 21A Block 5 Erskine Subdivision USS 562
and that we also vacate the lot line between those two llotsland replat those lots
into a new lot, #20A as requested by Dr. Christie; subject to receipt of a letter
of non -objection 'from the City of Kodiak to the vacation ofIthe utility easement.
Motion passed by unanimous roll call vote.
S-78-050. Vacation of. Lot 7 & 8 and replat as Lots 7A, 8A uI 9 Block 1 Killarney
Hills Subdivision, USS 3218.
Mr. Marmaduke, the Borough Engineer, made the Staff presentation,based upon the
memorandum prepared by the Planning Department.
Mr. Richard Carr came forward and stated he was trying to replat his two large
lots. into 3 lots so that proposed lots 7A & .9 could be developed with single
I
family dwellings and Lot 8A could be developed with a duplex.
P & Z MINUTES, JUNE 26, 1978
Page 3
It was moved by Mr. Pugh and seconded by Mr. Ball to approve the vacation
of Lots 7 & 8 and replat them to Lots 7A, 8A, and 9 Block 1 Killarney Hills
Subdivision USS 3218, with the stipulation: 1) that the field survey
staking be done as requested by Staff. Motion carried,by unanimous roll
call vote. .
4. S-78-049. A resubdivision of Lot 11D Block 7 Belis Flats Alaska Subdivision.
Mr. Marmaduke made the Staff presentation based upon a memorandum prepared
by.the Planning Department Staff.
Mr. Richard Lather came forward and stated the survey staking had been comi)leted.
A discussion developed between Mr. Lather, Mr. Marmaduke and the Commission
concerning the status of the road and drainage.
It was moved by Mr. Ball and seconded by Mr. Pugh that the Commission approve
the resubdivision of Lot 11D, Block 7, Bells Flats Alaska Subdivision into
3 parcels of at least one acre each and that all roads within the subdivision be
brough up to Borough standards and that all corner stakes be installed on all
three lots. Motion carried by unanimous roll call vote;
5. Z-78-051. This case was postponed until the next regular
of the applicant (Russell Welborn).
meeting at the request
6. Z-78-054. This case.was withdrawn from further consideration based upon a
letter received from Mr. Iani petitioning for rezoning on this same property.
7. Z-78-043. This case was withdrawn, by Mr. Herman Beukers on behalf of the
City of Kodiak.
8. Z-78-023. A request for final approval of a zoning special exception for a
14 unit group housing project.
Mr. Milligan explained the changes that had been made in the final site plan
as required by the Commission. He outlined eight conditions which the Staff
felt the Commission should consider in granting final approval. A discussion
develOped between Mr..Milligan and the Commission concerning the proposed eight
conditions.
Chairman Anderson opened the public hearing.
Mrs. Mary Gallahger commented that they had no objection to the proposed fence
requested by the Staff.
Mr. Robert Shepard stated he is not for or against:the project. He is concerned
with impacts of thelproject on the Spruce Street Park and what effect further
improvements Qn.JLb,rHerman Street would have on the park.
41ase.
r. Stan Fischer,Anderson closed the public hing. representing Wilton White, came forward and explained that he
would be out of town and not available for the continuance of Mr. Duncan Field's
M -
Chairman Anderson explained that the Fields case was not under consideration at
c
this time and that they (Commission) would address Mr. Fischer's comments
following the completion of the Gallagher Exception. At this point Chairman
didir 1
It was moved by Mr. Pugh and seconded by Mr. Erwin thatthe Commission grant
final approval of a 14 unit group housing exception on Lot.5, Tolbert Sudvision
and Lot 4, 5, a portion of Lot 6, and Lots 8 and 9, Block 1 USS..2910, containing
7 structures with the stipulations as discussed and amended by the Commission
and Staff: 1) To include the site drainage and grating plan being submitted
2D The submission of a letter from the Kodiak Public Works Department 3) The
infiltration tests 4) That the wooden fence be put.up around the property
above the 22' contour line 5) That the play area be completed or performance.
bond be -issued 6) That the landscaping be completed or a,performance bond be
issued prior to certificates of occupancy 7) That the! Homeowners Agreement be
submitted to and approved by the Planning and Zoning Commission priorrto the •
issuance of certificates of occupancy. Motion carried byunanimous roll -call
vote.
1 •
P & Z MINUTES, JUNE 26, 1978 Page 4
Chairman Anderson called Mr. Fischer forward. Mr. Fischer requested the
Commission consider an alternate date for the variance hearing requested by
Mr. Duncan Fields. He stated that he did not think it right for one party
to request a postponement when a hearing had been advertised and a quorum of
the Commission was present and other parties wish to be heard on.the matter.
He requested action on the setback request hearing tonight as all parties are
available.
-Chairman Anderson stated that due to the presence of only a quorum, he had
offered every petitioner the opportunity to be heard or to postpone action
on their case until the next regular meeting. Chairman Anderson asked Staff
cal - e * o.
• Z-78-052. Chairman Anderson asked '1r. Pugh to read the'Sta
record.
Chairman opened the public hearing. No one appeared and t
It was moved by Mr.
setback variance to
garage Lot 29 Block
roll call vote.
Z-78-056. Chairman Anderson asked Mr. Pugh to read the Sta
record.
ff analysis into the
he hearing was closed.
Pugh and seconded by Mr. Erwin that the Commission grant the
permit relocation of a house on lot:and attachment to
12 Aleutian Homes Subdivision. Motion carried by unanimous
ff analysis into the
The Chairman asked Mr. Milligan to expand upon the analysis. Mr. Milligan
indicated the existing and proposed building locations on the site plan and
reviewed the topography of the site with the Commission.
Chairman Anderson opened the public hearing.
Mr:Blake Kinnear explained his request. He explained the car deck would not
encroach into the Hillcrest right-of-way and the reason why they wanted to
remove the existing building and replace it with a new tructure.
The Chairman closed the public hearing.
It was moved by Mr. Pugh and seconded by Mr. Erwin thatIthe
Commission grant a
setoacK variance to permit construction or a mincing upon rounoation or existing
building, which encroaches into a front yard on Lot 10 Block.19 Townsite Addition.
Motion carried by unanimous roll call vote.
Milligan replied "yes"
is now represented by
by counsel at the time
with the hearing.
A discussion
soon a hearing could
is held.
-
Commission continue
Mr. Anderson asked if Staff had contacted Mr. Fields. ,Mr.
Mr. Fields had retired for the evening and since Mr. White
counsel, he (Mr. Fields) felt he should also be represented
of the Commission's hearing.
Mr. Fischer reiterated his request that the Commission proceed
He explained the urgency in proceding as quickly as possible.
developed between Mr. Fischer and the Commission as to how
be held and the posting of a stop work order until a hearing
,
It was moved by Mr. Pugh and seconded by Mr. Ball that:the
the hearing on the setback variance to permit construction
of a building addition
which encroaches into a side yard on Lots 6A and 6B Block 8
Townsite Addition .
until Monday (July 3, 1978) evening at 7:30 p.m., and that
until this hearing is
held we (Commission) direct the Staff to obtain through any
legal means :possible
a stop work order on the project currently going on this property.'
Motion carried
by unanimous roll call vote.
. ,
:..
time, following the
Welborn, Mr. Iani, .
they had submitted.
.
I
The Commission indicated that Monday, July 3 would be alcould
Fields hearing, to hold a work session with Mr. Brechan,, M.
and Mr.Wittich to review the industrial rezoning request that
,
,._.... •
VI. B 6. V-78-055."
.Setback
Variance to -permit construction of,a building 'addition
which encroaches into,a side yard,_Lots'6A and..6B.', Block 8, Townsite
I '
1 .
Addition (Duncan Fields)
REQUEST
This is a •request for a. variance to -allow ..the continued use of a
recently. constructed addition to an existing -structurelin an' R-3
zoning use district which encroaches into a required side yard.
SITE.
The petitioned -property is located on Lots 6A and 6B, 0.ock,8,
II
Townsite Addition to the City of -.-Kodiak:.". The property;was developed_
several years 'ago with a wood frame' dwelling which encroaches into a
required front and :side .yard.
The property is located on the' west, side of Upper. Mi11i Bay Road,
between.Rezanoff Drive and..Kashevaroff Street,, across the street from
the Community Baptist Church.
The site contains two -lots with the existing structure, primarily
i it •
.located on the southerly. lot. An -as -built survey .of the lot indicates
the original portion of the building is located approximately thirteen
{13) feet from the front property line and approximately 'one and one-
half (1.5) feet from the side property line.
'HISTORY'
The original portion of. the`bui-lding was constructed prior to -the
adoption of the present building and zoning codes.
V-78-055, (Page 2)
The lot has a width of 43.72 feet at the front property line. and
47.48 feet•at-the'rear property line.
In September, 1.977,'Mr. Duncan•Fields submitted a building"permit
application to construct an addition to .an existing striucture.- As
part of the application, a plot -plan :showing the proposed building.
.-location was included. Based upon.your previous interpretation and,
policy,it was:determined that a variance was not"requir.ed under.the
provisions of Section 17.45.030 -of the Kodiak Island Borough Code-
1
ode of
Ordinances.
In accordance with past practices,
• this addition was constructed.
,building permit
wa'•
s issued .and
In May, 1978, a 'neighboring property, owner;contacted) thle Borough
Administration concerning this matter, requesting the circumstances
r
of the permit issuance process -be reviewed with respectrto encroach-
_
ments of the addition into a required' side yard. We reviewed the permit
application and explained the Commission's policy with regard to Section
17.45.030.
ANALYSIS
The recently constructed addition projectsapproximately 1.7 feet into
a required side yard of 4.7 feet. This encroachment diminishes toward
the rear of the addition.
The applicants letter, dated June 7, 1978, does riot specifically
address the four requirements of Section 17.66.090'B, which requires:
-V-78-055 (Page 3)
"B. The application shall,contain a statement'and adequate evidence showing •
the following conditions, all four'of which must exist before a variance
may be granted:
1. That•there-are exceptional physical.circumstances or_ conditions
applicable to.the property 'or to its intended use or'development
which do not apply generally to the -other properties-inthe same.
land use district;
2. That the strict -application of the.provisions of this title would
result in practical.difficulties or unnecessary hardship;
3 That the granting of the variance will not result in material
damage or prejudice to other properties in the vicinity nor be
detrimental -to the public health, safety or:welfare;
4'. That • the granting of the variance will not be contrary to the
exceptional physical
objectives of -the comprehensive plan."
Section 17.66.090B(1)--requires,-."That thereare
circumstances or conditions. applicable to the properityior to its
generally= to the other
intended"use.or development which do, not•apply
properties'in the' same land use district."'
Staff, in our review, found.this appears to be the onlYll .structure -within
I,.
the block Which has'a sideyard encroachment. Otherlbuildings within:
-
this block could construct additions without having ;toyapply for a
variance. There are no physical limitations' on the property which would
'have precluded the addition meeting current setback 'req'uirements.
Structurally, such a setback from the existing'bui-ldng line. may present
unobserved problems:.
2. Section 17.66.090B(2) requires, "That the
provisions -of this title, would result in prac
unnecessary hardship.
Strictapplication of the
ical difficulties or
Staff finds it is not aware of any practical difficulties that would have
precluded the additi'on•from'conforming'to current setback requirements..
V-78-055 (Page 4)
3. 'Section 17.66. 09'OB (3) r'e'quires,, _ "That. the granting of the variance
will not result in material'damage or.prejudice to other -properties
:in the vicinity rior be detrimental -to the public. health, safety or
Staff finds that granting
the
variance
will result inIno detrimental
addition meets minimum
construction from a-
impacts on the 'adjacent_" .property.' :The `building
building code setback requirements for Type V -N
property line.
4. Section 17.66.090B(4) requires, "That the granting of the variance
will not be contrary to the objectives of the comprehensive plan."
anaddition to an
Granting this request to permit the constructiorL of
existing dwelling structure will not be detrimental
hensive plan.
STAFF SUMMARY
_ I+
Staff wishes to'point out that while technically this building permit
may have been issued in error, it was issued consistent with past
Planning Commission policy..It was not done to cir'icumvene the,Zoning
Ordinance or any'of its provisions. Staff has, in the; past, discussed
.this matter with you.
We discussed this subject last fall, -and it .was your decision to
continue handling side yards, as
well asfront yards, under Section
17.66.45 until the Code was re -drafted..
This"matter has been brought to your attention through the,direct
action :and concern, of a neighboring property owner who; for obvious
V-78-055 (Page 5
reasons,'has asked not. to be'identified.,
RECOMMENDATION'
You may wish to exercise-any.one,o.f the following optionsr.
1. You can grant the request;
2. ,You can' deny the request;
3. You can initiate an amendment to the Zoning Ordinance text
dealing with conforming additions to.existing
residential structures in residential zones;
if you feel additiona
You can postpone action
is.nec'essary,
Staff recommends this request for.a variance be granted, based upon,
nonconforming
information.
prededenb and upon the merits of 'the request.
GERALD W. MARKHAM
STANLEY T. FISCHER
MARKHAM AND FISCHER
ATTORNEYS AT LAW
TONY'S BUILDING, SUITE 205
P. O. BOX 806
KODIAK, ALASKA 9961,5
June 21, 1978
Planning and Zoning Commission
Kodiak Island Borough
P.O. Box 1246
Kodiak,. Alaska. 99615 _
TELEPHONE
(907) 486-4194
Re: Protest of Variance Request'
for Lot 6A 'and Lot 6B, Block
8, Kodiak Townsite
The commission has been asked to consider a
variance request filed by Mr.'Dunca.n Fields topermit a
variance to Kodiak Island Borough side yard re�`q4ements.
Mr. and Mrs. Wilton White, adjacent property owners, hereby
pretest the granting' of said variance.
At the outset, it is noted that while the variance
is sought to "permit" construction, the fact of the matter
is that construction of the exterior of Mr. Fields addition -
has been virtually completed. More importantly, we perceive
several substantial concerns.with.the variancelreiquested-.
The first of. these concerns is that the present side
lot is no greater than 1' to 2' on one side of!Mr. Fields'
building and 4° to 5' on the other side of theIbuilding.
On the Application for Building Permit" a plot plan shows 15'
on both sides of the building. Thus, the information, on
the basis of which Building Permit No. 4485 issued was manifestly
incorrect.* i
On yard requirements, § 17.18:.040 (B�
Island Borough Code (hereinafter IIB)`Presently
pertinent part as follows: . I
of the Kodiak
reads in
" There shall be a side yard of not j I
less than ten percent of. the wi.dth of
the lot but such side yard need not
exceed twenty-five feet. . °'
While 4r. Duncan's.original residence was grand-
fathered in by virtue of it's pre --code. existence, the addition
*Also -obviously incorrect is the notation on tile plot
plan that the addition is 20' in length. Accordingly, the
apparent notation that the rear yard :is 20' in lerig:th:: to the
rear lot line Aust also be incorrect acid requiresexaminati.on to
determine whether rear yard requireients stated in § 17.18.040
(E$) of the KIB Code have been complied with.
Page 2
Planning and boning Commission
he is building represents a most significant alteration .
and enlargement (the size.of.the original residence has
.
probably tripled in size). of a nonconforming use which'
is expressly prohibited by § 17.36.010 of theKIB Code.
I
Not only,does.the building permit application
contain egregiously incorrect information on the side lot
size, but*further it incorrectly states that thecollective
size of Lots A and B; of Block 8 is 5523 square feet. A
most cursory examination of the subdivision plat) dated
August 3, '1960, hows Lot 6, Block.8 divided intO 3 parcels,
Lot 6A, 6B and. Mr. Fields owns Lot 6A and. 6 wherein
he is construct:. g_his enormous addition,-. Lot -64 contains.
1982 square'feeti—Lot 6B contains 1863 square, feet. The
combined Lots 6-A and 6B, then, -total only 3845 square feet.*
If their lots total only 3485, then it may well be'that
other KIB Code provisions pertaining t0.1ot.si,zeand yard
restrictions may have beenviblated. See Chapter -17.42.
In view of these concerns, it seems most
appropriate that the commission should desire inVlestigation
of the.issuanceof the buildingpermit in the first instance
and further investigation of. any. additional violations
of KIB Code provisions:. If—the:investigation reVeals, as is
alleged here, that the building permit was obtairied by
virtue of misinformation and that KIB Code frequirements
have been violated by constructipn'of the addition, then and
Only then'should the commission decide on the application
for variance.
Alternatively, if the commission desires to
presently decide on the application for variance based on
- the information before it, a denial of the variance
*Lot 6C contains.2425 square feet. The total of all three
subdivided lots is _6270 square feet, the .size of Lot .6,
before subdivision, as shown on the Kodiak Townsite survey
and by the subdivision plat.
Page 3'
Planning and. Lull_Lng Commission
request is in.,order as.' is a recommendation from the commission
to the ._borough. `assembly that the assembly instruct its .
attorney to seek:to. enjoin, abate-. and remove the offending
structure. § 17..75-.040 _of the KIB :'Code'.'*
Thank you.
Sincerely,
MARKI-HAM & F I S C HE R
By:
r r,
Stanley T: Fischer
Attachments: •
1. Application fdr' Building Permit
2. •SubdivisiCn Plat Of. Lot 6, Block 8,
Kodiak Townsite..
* .If, deemed suitable, the commission .may also recommend
enforcement of penalty provisions forviolation of the
.-zqTarbj provisions. These provisions are' found at 1.12.-010
of the KIB Code..
, . BUILDING DEPARTMENT -- CITY / BOROUGH OF KODIAK . - ' ." APPLICATION FOR BUILDING PERMIT AND CERTIFICATE
-Applicant td fill in between heavy lines. - .• . -- '' - * _, -, - ' ..: • . OF OCCUPANCY - - • — '
• ' - - ' • ' '. '11;":. "- •-
BUILDING ADDRESS .
CLASS OF WORK:
BUILDING PERMIT NO.__ -
DATE ISSUED
,- L. , - . ,-,
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ADDITION
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USE OF BUILDING c • 1 ,
VALUATION
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USE OF BLDG. NO ON
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FLUES ,
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SPECIFICATIONS - -.
FINAL
FINISH ,
FINAL
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STATE LICENSE No ' .
. . ,
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MATERIAL
-
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NAmE
F xTERIOR.
PIERS
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WIDTH or TOP
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STATE LICIET;GE NO. ,
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LEGAL
DESCRIPTION
SUBIDtvri,e4N -
JOIST ist...S.,••
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Ak te —
Li c • Sz-ITIPI .9.537-8
JOIST 271. IL f
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LOT No. , BLK. • .
JOIST CEILING "'
1... x 6
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5 _
. . . .
_
4-.1.5' __. - i g ---, -
EXTERIOR STUDS
. .
INTERIOR STuDS
l• V.-
. . -
% .
DO NOT WRITE BELOW THIS LINE
ROoF RAF TERS
_
BEARING WALLS
;1 1 .-
.
/7
cOvERING
t• a
e OCI,
" i. Type of C.onstryctien--- -
2
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1, 11. 111, tv41, vi -_ -
-FLUES
- _
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FIREPLACE 11\1 L. F FFURNAC . . 1-•••"---
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KITCHEN pti - WATER HEATER 4___
. _ . ..
2. Occupancy Group A, 8, C, D, E; - -•
f uRNACE 1 1 4„,..... GAS 'IL /„..---
-
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ZONING DISTRICT
AB
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_ NUMBER OF STORIES 2...„._,_. TOTAL HT. ac ' •
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I hereby 1 have
_
, . • AREA 0F LOT
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. - - -
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. _
acknowledge that
this application and - state that
,
, . • .. .
- _ - - - FRONT YARD SETBACK FROM pRop. LiNE
. -
--- -'••.' ' ' -", '': n--- — - ,-: - -
,the
above is correct and agree to comply
- .. __ - . . - _ SIDE YARD SETBACK FROM PROP. LINE - - •
- - - . _
_ , _
- • - •
with:: all City • Ordinances and State
, _ ••
..
--- -...,..- - -., -
Laws re ufling 'building construction:-
.= 4PProved: CHIEF 9UI 1-D1149 OFIcAL - - - - .,-
Approved: ZONING ADMINISTRAT011 -' '
•---,--- ,. ...;
_
_ -•-.. , . _ •_ .:,-,
•
\ •
KODIAK ISLAND BORCTflH 1246
Kodiak, Alaska 9961)
V-78-055
. 12013(4.35et._)
5o,c. 505-
r
IWO sa
';" •
FIRST CLASS MAIL
z/ir
NOTICE OF PUBLIC HEAR
ING
The Kodiak. Island Borough Planning and Zoning Commission-has,received a petition from
' Duncan Fields
requesting
Setback Variance to permit construction of a building addition
which encroaches into a side yard, Lots 6A and 6B,, Block 8,
Townsite Addition
The Kodiak Island Borough Planning and Zoning Commission will hold a ,Public Hearing
on this matter at 7:30 p.m. Wednesday, June 21, 1978
in the Borough Assembly Chambers, 700 Upper Hill Bay Road, Kodiak. You are being
notified because you are either the property owner of the abOve-referenced lots; or
an owner of property within 300 feet of the above -referenced property. This will be
the only Public Hearing before the Planniand*Zoning Commission on this petition,
and you are invited to appear and voice your opinion. If you,cannot attend, you may
submit a written opinion that can be read:into the minutes of_the Hear„Lng,
If you would like to comment on the petitipn proposal, this form
your convenience, and returned to the PlannIng'Department.
may be used for
Further information is available from the Planning Department, telephone 486-5736.
KODIAK ISLAND BOROUGH
Department of Planning and Community Development
, .
Name
cliPrin A—Robinson Address
Legal Description Lot 6C, Block 8, USS 2537B
Box 505, , Kenai, Alaska . 99611
Comments Granting such a variance will have an extremely
Trzr adjoin
II* A. a0. .
negative effoct on
-
US SURVEY 444
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KODIAK ISLAND BOROrrill
Box 1246
Kodiak, Mask* 99615
V-78-055
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A Ipmil 129:81,
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FIRST CLASSaAIL
'.11947
9CLIHir
's ED' FORNNARMi:;
. VPSE
V.MS N..00, d
1
NOTICE OF PUBLIC HEAR
ING
The Kodiak. Island Borough Planning and Zoning Commission -has received a petition from
Duncan Fields
requesting
Setback Variance to permit construction
which encroaches into a side yard, Lots
Townsite Addition
of a building addition
6A and 6B Block 8,
The Kodiak Island Borough Planning and Zoning ComMission will.hold a.Public Hearing
on this matter at 7:30 p.m. Wednesday, June 21, 1978
in the Borough Assembly Chambers, 700 Upper Mill Bay Road, Kodiak. You are being
notified because you are either the property owner of the aboveilreferenced lots; or
an owner of property within 300 feet of the above-referencediprOPerty. This will be
the -only Public Hearing before the Planning and Zoning Commissioln on this petition,
1
and you are invited to appear and voicetyoupinion. If you cannot attend, you may
-, - - —
submit a written opinion that can be_re4into the minutes of .t11124lic Hearing.
,
t
If you would like to comment on the petftion)proposal, this form
your convenience, and returned to the Planning Department.
Further information is available from the Planning Departmen, t
•
KODIAK ISLAND BOROUGH
Department of Planning and Community Development
Name
Legal Descrip
Comments
may be used for
.1.ephone 486-573
S sot
WO SU 14"
ral 160 tt%"6 It°1*144
OHL
US SURVEY 444
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(
KODIAK ISLAND BOROUGH
NOTICE OF PUBLIC HEARING
Notice is hereby given that the Kodiak Island Borough Planning
and Zoning Commission will hold Public Hearings during its
regular meeting at 7:30 p.m. Wednesday, June 21,
1978, in the
Borough Assembly Chambers, 700 Upper Mill Bay Road, Kodiak,
the following requests:
1. S-78-040. Vacation of Lots 5A and 5B, and Replat to Lots 5C and
5D, U. S. Survey No. 3099: 1.27 acres, 2 lots
Pete Venaas Estate, Dennis Murray, Executor);
2. S-78-046. Vacation of Utility Easement within:,
Block 5, Erskine Subdivision, U. S. Survey No..:
(Knox Christie);
3. S-78-050. Vacation of Lots 7 and 8, and
9, Block 1, Killarney Hills Subdivision,
2.12 acres, 3 lots (Richard Carr);
(Margaret Emmons:
Lots 19A and 21A,
562: 10' x 99.87'
on
Replat to Lots 7A, 8A, and
U. S. Survey No. 3218:
4. S-78-049. Subdivision of Lot 11D, Block 7, Bells Flats, Alaska,
Subdivision: 3.252 acres, 3 lots (Richard Lather);
5. Z-78-023. Final approval of a 14 -unit group housing Exception,
Lot 5, Tolbert Subdivision, and Lots 4, 5, a portion of Lot 6, and
Lots 8 and 9, Block 1, U. S. Survey No. 2910: 1.397 acres, 7
structures (James Dalton Clark, A.I.A., and Thomas and Mary Gallagher);
6. Z-78-043. Special Exception for the removal of sand from Pillar
Creek Beach, T. 27S., R. 19W., S.M., Section 30 (City of Kodiak);
7. Z-78-051. Rezoning from Unclassified to Industrial,
Tract S-4,
U. S. Survey No. 3218: 8.56 ± acres (Russell Welborn);
8. Z-78-052. Setback Variance to permit relocation
attachment to garage, Lot 29, Block 12, Aleutian
(Daniel J. Bayne) ;
of house on lot and
Homes Subdivision:
9. V-78-054. Special Exception for additional use (manufacture and •
storage of crab pots) in an Unclassified zoning use district, Lot 1,
Block 1, Tract M, U. S. Survey No. 3218: 40,796 sq. ft. (Alagnak, Inc.);
V-78-055. Setback Variance to permit construction of;a building
addition which encroaches into a side yard, Lots 6A and 6B, Block 8,
Townsite Addition (Duncan Fields);
11. V-78-056. Setback Variance to permit construction of a building upon
foundation of existing building which encroaches into a front yard,
Lot 10, Block 19, Townsite Addition (Blake W. Kinnear);
KODIAK ISLAND BOROUGH
NOTICE OF PUBLIC HEARING (Page 2)
The Commission, after public testimonies, will render a,
decision on each of the above requests. The meeting and
Public Hearings are open to the general public.
KODIAK ISLAND BOROUGH
PLANNING AND ZONING COMMISSION
Harry Milligan, Secretary
Publish: June 14, 15, 16, 19, 20, 21
r
KODIAK ISLAND BORC,
'Box 1246
Kodiak, Alaska 99613
V-78-055
•
FIRST CLASS MAIL
NOTICE OF PUBLIC HE,\,RING
The Kodiak. Island Borough Planning and Zoning Commission-has,
received a petition from
' Duncan Fields
requesting
Setback Variance to permit construction of a building addition
which encroaches into a side yard, Lots 6A and6B, Block 8,
Townsite Addition
The Kodiak Island Borough Planning and Zoning Commission will hold a.Public Hearing
on this matter at 7:30 p.m. Wednesday, June 21, 1978
in the Borough Assembly Chambers, 700 Upper Mill Bay Road, Kodiak. You are being
notified because you are either the property owner of the above -referenced lots, or
an owner of property within 300 feet of the above -referenced property. This will be
the only Public Hearing before the Planning and Zoning Commission on this petition,
and you are invited to appear and voice your opinion. If yo,u cannot attend, you may
submit a written opinion that can be read into the minutes Of the Public Hearing.
If you would like to comment on the petition proposal, this form maybe used for
your convenience, and returned to the Planning Department.
Further information is available from the Planning Department, telephone 486-5736.
KODIAK ISLAND BOROUGH
_Department of Planning and Community Development
Name Address
Legal Description
Comments
US SURVEY 444
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Kodiak Island Borough .,
Dept. of •Planning- Ind Community' Dev
Box• 1246;
Kediak,Alaska 99615.
-�Harry'hfillioan �Pl
e: Building= permt:Ni
Addition"`
ng',Dire
Subject' building per was 'issued forthe=eons
to ,the existing two -bedroom;=wood .frame -house
;Your letter;' of May,31','1978 indicates -that the v
permit may'`.ha9 been_issued in errer:`
resulting-in':an•apparent.violation :,af city.;building'code and�,borough zoning regulations ..•
based on•information'suppiied by,,,the owner..; :..':'°., ,
Prior to the -issuance of.the=subjeet building permit '!r .Lutene ifil.zta1o'from your: office;'•
inspected the. site. ':Property lines-; were.,checked'and measured setback`;was measured,. not
only of, subject property, but of, .every house: on the .block. -.'`Subject property: was, fenced
Ind. the-boundary.line in question is still tended; The specific purpose of this' checking -
and -measuring was to‘ determine whether?or nota variance wouldJbe,necesenty before the
b1' ' ding .permit tcould ,be ,issued. 2.Iit.wast=the decision thatWno ariaince wss="necessary and `-
he: permit was issued , •''., . ,
= was entered
In the upper ritht.'hand corner of'the permit;form.is a space for sketching'; in the ;si
and; proposed. construction ;This was,,filled.in by, the Borough personnel and when,the“figure,
for -the boundary clearanceyof the south boundary, _decimal poant was ommitted canting the
"figure (1 5}_feet to read ask1.5-feet:. The=on
ctest"distance''l:s obv ous's3:noe the.property '
's ferceci aro also on the_plot;pian submitted to'the borougki by ther-owier.' There is • simply,
.. x.a .. ,
no :way thss could have been misrepresented to the -Do -rough inspector: .•
If now, eight. monthsrlater,:i after ,the construction has been'zahout 98% completed at a cost :-
:ir excess of, thirty, thousand. dollars, it is'irecessary to°,obtsin a :variance '.then"
.letter I am'.requesting the` necessary variance. r.
I; would like' to point- out: that this ,addition' in noway -effects other. property in the atea,•
it is in harmony with the, decor,of'the -neighborl hood and certainly: causes; no difficulty.' • .
or hardship to any- other.existing property 'The:only possibieyeffect this.,:structure could'^
nave`:on any other roperty=is to obstruct,sovne.ones view If this is a criterion on which
rrits-areiisstzed1tthen :all -the construction:in the area for.severel blocks zs in'viblation.
oflcodes and -:planning:
rusting this su'ficie
ly„answers your letter of May 31”
978.
ncan-?U;
Fields;_”
kodiak'Alaska.
August 3,1960
•
•
This plat ropreaents a true physical survey of lot 6
Block 81hodiak Townsite Flat 2537 band the .
subdivision of lot 6 into three parts,6—A/6-B and
6—.this subdivision W12 prey ous1y acoanplished
by deeds,filed in 4the U3 Commissioners Office,
Kodiak Alaska.
Registered Land Surveyor
KODIAK ISLAND BOROUGH
MEMORANDUM
DATE: June 1, 1978
TO: ,Borough Manager
FROM: Department of Planning and Community
SUBJECT: Monthly Activities Report for May, 1978
Development
The following activities took place during the month of May, 1978;
Building Activities
There were twelve (12) building permits issued during the
month for building construction, additions and alterations
to properties within the Borough and City of Kodiak, as
shown in Appendix A.
Platting Activities
Eight (8) subdivisions were processed during
Zoning Activities
Seven (7) zoning cases were processed during
the month,
the month,
Sixteen (16) zoning cases are currently under investigation.
One case is in litigation.
Public Hearings
Public hearings were held during the month on the eight
subdivision cases and seven zoning cases referred to under
Platting Activities and Zoning Activities, above.
Other Activities
Approximately one hundred forty (190). people visited our office
during the month, seeking information on a variety of subjects,
In addition, numerous telephone inquiries were fielded,
Staff, in addition to attending the normally. scheduled Planning
and Zoning Commission meetings, Borough Assembly meetings, and
weekly O.E.D.P. meetings, completed bank stabilization and the
redevelopment plan for Karluk; attended Cold Regions Engineering
Conference in Anchorage; completed field surveys and preliminary
road design for Sawmill Circle and Lake View Drive; summarized
public hearing comments on the new Regional Comprehensive Plan,
Department of Planning and Community Development
Monthly Activities Report, May 1978 - Page 2
worked on Capital Improvement Plan, attended RuralCap Board
Meetings and Health Resources Advisory Council, meeting.
Mr. Mulitalo, Zoning Official, is on special assignment to
the Borough Manager as assistant on budget matters.
• € • a
APPeriohc A, .
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KODIAK ISLAND BOROUGH*
Telephones 486-5736 - 486-5737 — Box 1246
KODIAK, ALASKA 99615
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
May 31, 1978
Mr. Duncan U. Fields
P. O. Box 2012
Kodiak, Alaska 99615
In re: Building Permit No. 4485, October 4, 1977,,
Lots 6A and 613, Block 8, Townsite Addition
Dear Mr. Fields:
It has been brought to the attention of this Department that the
referenced building permit may have been issued iniexror based
upon information you provided in your building permit application.
Section 17.03.020 of the Kodiak Island Borough Code of Ordinances
requires that all construction conform to the requirements of the
Zoning Ordinance. It states,
"No building or land shall hereafter be used pr occupied
and no building or part thereof shall be erected, moved
or altered unless in conformity with the provisions
specified in this title for the district in which it is
located."
Section 17.03.030 further requires,
"No structure shall hereafter be erected or altered:
A. To exceed the height;
B. To accommodate or house a greater number of families;
C. To occupy a greater percentage of lot 'area; or
D. To have a narrower or smaller rear yard, front yard
or side yard than is specified in this title for the district
in which such building is located."
The subject property (Lots 6A and 6B, Block 8, Townsite Addition) is
located in an R-3 Zoning Use District, which requires a minimum side
yard of 10% of the width of the lot, or a maximum requirement of
25 feet. A review of the as -built survey of yourlproperty indicates
the existing building is located from one to two feet from the
property line, not 15 feet as shown on the plot plan,with your
building permit application.
We would appreciate your contacting this Department within five
working days of receipt of this notice to discuss!this situation.
ofr
Mr. Duncan U. Fields
May 31, 1978 - Page 2
We look forward to your cooperation and assistance in resolving
this apparent violation of the City Building Code.and Borough
Zoning Regulations.
Sincerely,
DEPARTMENT OF PLANNING AND COMMUNITY DEVELOPMENT
arry Milgan
Planning rector
HM:am
Copy to: Building Official
Borough Manager
£& -SQ cry :
BUILDING .AD DRESS --=--
1 a 15,1
=1 k
LOCALITY
Ike
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NEW
DEMOLISH
ALTERATION
REPAIR
NEAREST CROSS ST.
I1 hi i.2.0/;.;,4
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2
0
NAME
MAIL ADDRESS
ADDITION
USE OF BUILDING
MOVE
X13
IZE OF BUILDING `,€41 -HEIGHT J
NO. OF ROOMS
NO. OF FLOOR
CITY
TEL. NO.
NO. OF BUILDINGS
1
U Cr
W
F w
Z
U
E Z
• w
A
NO. OF BUILDINGS NOW ON LOT
. OF FAMILIES
ADDRESS
SIZE OF LOT
CITY
USE OF BLDG. NOW ON LOT
SPECIFICATIONS
STATE LICENSE NO.- - - -- -
.FOUNDATION _
NAME
ATER IAL
EXTERIOR,
PIERS
ADDRESS ''Th
WIDTH OF TOP
WIDTH OF BOTTOM
1
CITY
PTH IN GROUND
STATE LICENSE NO.
/7
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0
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SUBDIVISION
1 S
LOT NO.
BLK.
DO NOT WRITE BELOW THIS LINE
1. Type of Construction
1, II, III, IV,V% VI
2. Occupancy Group A, B, C, D, E,
F, G, H(i, J Div. 1, 2, 3, 4,
3. Fire Zone 1 3 ,4
R.W. PLATE (SILL) /
SIZE'N/ SPA.,
SPAN
GIRDERS,
JOIST 1st.L=�
.f
r
t 1ti'
ST 2nd. FL.
JOIST CEILING
EXTERIOR STUDS
INTERIOR STUDS
'3 .y
ROOF RAFTERS
4i
BEARING WALLS
COVERING
EXTERIOR WALLS
ROOF ..0„,/
NTERIOR WALLS
EROOFING
FLU
FIREPLACE
KITCHEN
11)
FL. FURNACE
WATER HEATER
FURNACE
GAS
OIL
I hereby acknowledge that I have read
this application and state that the
above is correct and agreeto comply
with all City Ordinances and State
Laws regutjing building construction.
Applicant
Applicant Gt-I..r+.r,.I ei- '/ --',
BUILDING PERMIT-NO-
VALUATION
BUILDING
FOUNDATION
FRAME
PLASTER
FLUE
FINAL
ROUGH
D'ATE-ISSUED'
BLDG. FEE
PLAN CHK. FEE
TOTAL
PLUMBING
SEPTIC TANK
SEWER
-GAS
FINISH
.•) 2
ELECTRIC
ROUGH
FINISH
FIXTURES
-MOTORS
FINAL
C.. / / /I'!.
3NI1 Ai2:13dO>dd
STREET
/?- y S 030 nfGrd�
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PLANNING & ZONING INFO.
ZONING DISTRICT
TYPE OF OCCUPANCY
NUMBER OF STORIES
f<N
(p V
TOTAL HT.
AREA OF LOT
FRONT YARD SETBACK FROM PROP. LINE
SIDE YARD SETBACK FROM PROP. LINE
REAR YARD
Approved: CHIEF UILDIN O Ft AL Approved: ZO ING ADMINISTRATOR
By.
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3q1 Roy A. Ecklund:' - 0
% NO. 1638-S •• J`� Aa
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De q�p5 ,
•
U1LT SURVEY
1 hereby certify thai I have surveyed the following described property:
A PaR77a'S' of LeTG , 9I 12'
k /7/.alt' 7;'4 vs re* 5veri4'1:- 1/55. 2537-8
and that the improvements situated thereon are within the property Tines
and do not overlap or encroach on the property lying adjacent thereto,
that no improvements on property lying adjacent thereto encroach on
the premises in question and that there are no roadways, transmis-
sion lines or other visible casements on said property except as indi-
cated hereon.
Dates this /::5:21
day o v/ 14 78
ROY A. ECKLUND
Registered Land Surveyor
Scale:. /•i = Zo'
Drawn by:
Date:
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ti
PAGE -9 -4 --au
rding District
ear
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KODIAK
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