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KODIAK TWNST BK 8 LT 6A,B,C - Code Enforcement (2).5 .-a SENDER: Complete items 1. 2, andi. f Add your address in the 'RETURN TO" sr i 3' rnerse. w../ m U 1038 '1JI333H Na11.13e m c a 0 0 0 0 0 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: {{t. oustao Faaa..or Lo. Bos- ?ace topfok., 4(41144 46. 99ra 15 3. ARTICLE DESCRIPTION: REGISTERED NO.I CERTIFIED NO. 1 INSURED NO. 4190°n, (Always shtaln signature otaddressee or agent) 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 `INITIALS {r GPO: mas0-56e-oei .Ed.2d 1 S.Ct. :11, J., 1 con- atute, a "le- %ploy- proc- 344, city nina- t the fper- ecta- tible the ens! :rest be tk & 652, the rive loy- iod. "de the 108 S70 ec- in 78, as re ay m .l9 as 5. a - 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 Ss 'I Isi. •,14; • s*i •-• Z::: 1.• " . 1 ' . „ • tptyilt rs.'s 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 • • 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, -'.. • ' • I 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, • ,.s. ' • 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). :rt - ice of he a gs ut on ed 10. n, he Id '1- c- (i - id w Id 4- e, to to .h is it :1 a- t, t, n 1. r, g d 1- g e it 1 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 the rer 13o 191 sio der frc sta re( qu spy 29. rot K. vii lh ca an vii At (1' 33 re II( re al Li 5. it .18 on ed is - se re tis '7. Id a li- e r - :s a If 1- a if 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 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 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. , - . ,-, DEMdfLisH . - . • •`-,-2'..,:-, - , " 71 - . OcALITy i/ ALTFRATioN . / FLAN' -• ' 71 0 PLOT . . NEAREST CROSS ST. - ADDITION MOvE 3.-4/11 ..„ . f' • 2P Atte i 44.- ' I' iy),r • USE OF BUILDING c • 1 , VALUATION . BLDG. FEE- $ ..----; ,.....,- ), • r ..,.4 N ( . 7 c , ---» - ' M , NAmE i Sin 01 BUILDING - IEIGI IT 1 PLAN . 4 "( ' _v 4.• CHK. FEE .,... .. e ..Q.., NO. OF RetWAS . , . , . MAIL ADDRE.SS ettA51/4'. Lk , - , ( . , t Frl 3 i ....,10....i ci.41/ .t.„ Ne OF FLOORS -7P- s ((7 (. ) i 6 C.-, (..) TOTAL . c, i • 1 12 CEP( ^ TEL. NO. r__/,... --N , -21 2 . 1 e 4....„_14! 2/s:t...cs.....o IC No OF BUILDINGS - BUILDING PLUMBING ELECTRIC - t L II r. I ARCHITECT ENGINEER riA(1 NO OI BUILDING NOW ON LOT 1 • reuNDATION . ROUGH •Ire -40. - .t61 (_(-0;1. I . ROUGH - , 4 A : r i, ne.3 NO. OF FAmiCiEs FRAME SEPTIC TANK ' FINISH , ADDRESS ••••11.(•-•1 • • „el - Sl7E OF LOTAMIltlf 'LOT PLASTER , FIXTURES 0 el -‘k _17 i CITY 1_ USE OF BLDG. NO ON t2"V"I)--. FLUES , ''' MOTORS - _G.' -it/ -04.1-, dle..ic-- - SPECIFICATIONS - -. FINAL FINISH , FINAL , \ STATE LICENSE No ' . . . , . • -- -- ja, - MATERIAL - _ NAmE F xTERIOR. PIERS re WIDTH or TOP Ai " ig , - , 4. At S / A/ -f-His 6 /- c/( k--- U O 1.3 , ADORESS WIDTH OF Ben TOM V v t J / i if t m ¢ 1 DEPTH IN GROuND hi 47, 1 . • 6 C% bl icE z CITY 6.543..... . _ W 8 STATE LICIET;GE NO. , ... . , . - - - _ - -- - GIRDERS 4,‘ 0/D / 1'r /5-6 . LEGAL DESCRIPTION SUBIDtvri,e4N - JOIST ist...S.,•• trt•-).X/0 le, '' /Tr Ak te — Li c • Sz-ITIPI .9.537-8 JOIST 271. IL f ,4 J/6 /6 ' , zr • • LOT No. , BLK. • . JOIST CEILING "' 1... x 6 —r, a J 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 •• , - iNTE RIM WALLS iii,pie,/ 41i,e [ROOFING • 1, 11. 111, tv41, vi -_ - -FLUES - _ .-.. , _. _ _- _ FIREPLACE 11\1 L. F FFURNAC . . 1-•••"--- _ - • - , . - - , - KITCHEN pti - WATER HEATER 4___ . _ . .. 2. Occupancy Group A, 8, C, D, E; - -• f uRNACE 1 1 4„,..... GAS 'IL /„..--- - ' .._ . _ L _ . . . .. LL , , PLANNING a ZONING INFO.- , F, G, HJ Div 1, Z 3, 4, • - - _ _ _ ZONING DISTRICT AB . • • _ • TYPE OF OCCUPANCY kg...4 e ••' '.. j _ - . . . • • e- I '81117 no, _ NUMBER OF STORIES 2...„._,_. TOTAL HT. ac ' • _ . .. ' ' I hereby 1 have _ , . • AREA 0F LOT ...5.5- _IS - ' • .. - .. . - - - 3Fire Zane 1- 3 . _ 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 Tr G so, suallette iiiHill'ilb: ionsentbi.„ ot In von Asogin ses agin SS Ng , ... ... ••• •• ... . ,•••• .. •:: • • ::/:::::1::t: ...... SM ALL BOAT AFIS :-J 10 NEW KODIAK S .'11:--/tZtv tan \\\ \ .\\N • '.\\\ \ USS 444 inEs Tr A Tr C US S 2537 B /995 511*amiii „„ .11 N KODIAK ISLAND BOROrrill Box 1246 Kodiak, Mask* 99615 V-78-055 ,,,;,...,.i;.,,7;_z..—....._., Vs_ ..• 4.!Iii S P 0 SitGC!:: glia*->14Iioni-"4...B-orougb tiK. 'DIA< 4LA:"._ A b-- JUN A Ipmil 129:81, _worn.,r416 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 777G • .... * .... .... .. . : . •• 1 1 i 1 4 1 1 4 A4 1 1 1 1 4 1 4 4 1 I 1 1 1 ILI 1 1 1 4 1 4. 11 1411 44 G NEW KO;D1AK' al • r-3.52.1±1, USS 444 ege3 MT:AC US S 2537 B ( 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 Tr. & 1 1 ► 1 1 1 1 1 1 1 1 1 1 i 1 i l 1 i 1 1 1 1 1 1 1 1 4 1 1 1 1 1 114,-444 SMALL BOAT HARE NEW KODIAK S fat USS 444 Tr A Lso Tr. C USS 2537 B 1995 . N z1 7. IU 'i0 - - c:__F_l ..G7S, o s dam _ $C. IG._ L. C�►e . _Cs� 71 4� --/Sax 5Z5 _ Lt.)_ IIc.D(4 6C. t - . _ -8. (d.., -t3 -.S-_ ` x>__ .�`. - __.P.o._./'ose. 1 T a �-,� G .,� - �, s=2, 44co w . 4 - 99�� _8.. --- -roa4, , .9*.u, _ a �. ., caA, . 64> &I,, L. .___--- �E Gu�•+te a.,� 40x- -- t4 2-1 PCD.4094 80 45.11. A_. 8 FI EI.,.DS , f,.--)st.1"*. 116 DITI OL) 8 , _ _ Tow o5l_TE_ _ADD%r(oL) (fa." -)61 - /lox 25 5 7 9_ .C2.,, 3.,_ 21 1C) �- ��—�- — g. StG.1 4 22 z-', 2.` 3A A i age_ce, v�-.c,oI, - 40,c 437 ; Zs i 4 ? I�. .._ _ )44.- -40x4 813 i 404 753 i 2? 5 _ 2x.. e.) `�i%a..�1v1i - / . 22(S. Cv -!�- z� CL . _ 01c.4.a_n..1_—�?e�-�_4— =ISOx• Ls55 25378 4:1712 d i ' une 7; 197&`' 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, . SCODINC... iSLA".10 ZCealY3CSA • 11Q11...i7t)..sc.- ttesm,-cs___50exl___20,ez,AL,..,...\G__Tkfte.:_int),,„Tcm____e,F___ tvv,..y, _tarits__ISo20...x.a_i_tAy.4.....or___IcoCN ?matedY i AiPitarly — Date .- It1 2 3 46 9 .„._ 10 13 7s 1,4i•ta — r ::ptuPtrt- 11 • - • tar 1 e•ovviJi>, ?,sc5 n_ ka_ -a Pr1TasIcj. eo ti C-1 CrcPc1-•11 111 II 1 I -V 1 111 masi 1 2 I CAIN or %AC 1 t 1 i 1 A , I 1 - 1 4163 a p _ _. t f -- . _ 6 _ 1* _ icej.t-VeL sp. . __ +1- - 4.g te..00iAs .ssJI I i tt • I I 4.j. Li-- Li ! •I i .1-e-- a ! 1 rr- i _ ., 5 se, 'L 11 I getC 1100‘S -1edjc.'sd_1 _ _ ,__L:, 1. -9- . „ _Hoist_ -1.- . 4ci. _,.:"..:... _ .i .iSCia - _ •.11_ [ZadAt 8 I,6 G. Giipeoaft,t3 se.0 - , z0.2 0o.; '811.1C T., Len --14:2... . i 1 - ... _ , ..221 , .!... 1 Zit .- 1 9.. 90c-ToLga20 sraessz 2,4...K...6, LOT 31 FogrV1, I I 9 ...9_,Iisz. j° l'5/Z3 045-5. 4 LLS 91:44 • 14 1.01- I . _ 34_2' er...11P4'8908.- . _too-._ ... 14444 see 1 . _ _ , _2.4.-: ! 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I 1 - -,— — -- 26 27 281 — 27 28 29 30 29 , 30 , 4 1 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 --.=- -- = CL-ASS-OF-WORK-•��"--- - NEW DEMOLISH ALTERATION REPAIR NEAREST CROSS ST. I1 hi i.2.0/;.;,4 rc 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 z 0 -I a D- O O E • U J 0 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� ./6".--e--,z,„-tle • dt.t.--g7i 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. B At' I v rr^^ 9� 0 1 Q Sr 9 m • PG, a mi s fie: --41,SbQs4 OF 14, O •oo•000000•••00000°O oo •••°o•o •No •••0.0••19• 3q1 Roy A. Ecklund:' - 0 % NO. 1638-S •• J`� Aa -80FES510NAL "e' 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: \%!i/ -/-9e ;F, ti PAGE -9 -4 --au rding District ear • KODIAK serial N'c;; /71/ !%!1:1 /Th ifor A 71. This lat redre 3 '310+ t r. blade( 14E( :11:t.. A It - zr,cuAivislari )f thrt 6.4. this sin...• v Jr: -.• z by deed/it:tiled :r1 \J4. : Kodiak Alaska. 40 40 , - • - v it) ta417707. mo.17,171{1 N.4 v • 4 j/e t 0!!,,no aas.cs. / .3•1.SL) y31 ‘i 4rv-.7 lot. 6, 9, .s.(: the A e ;art04-A.4.1) / •JJ.I,Lished/ her. 'hrrt ffiest Rei&te.e And Survsyor • ' , - ;•••