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KODIAK TWNST BK 16 PTN LT 15 - VarianceKODIAK ISLAND BOROUGH CASE # -0 PLANNING & ZONING REQUEST APPLICATION DATE 1/4ThAr\ Type of Request: tcj)1611.4,S-* Final Disposition: ;VL.pit, Remarks: .••••••••••••••IIIIIMI Description of Land: Lot: Addn:4-‘—;0-LION(L.,LAA—jp, Survey # Person Submitting Application: Nailing Address C9vering letter submitted: Plat Submitted: .5••••.. Referred from: 7 Person or Representative to attend meeting: Present Zoning: Proposed Zoning: Reason for Request: 010111..111111001111111111111101111110110*••••• Unusual Circumstances: Approved: Remarks: Not Approved: Remarks: cyo Borough Assembly Approval: Remarks: (R+A}VAI 4-t) Cj. ks7/1--'2--/ to • , P & Z COMMISSION - July 28, 1965 Page 3 VI Old Business A. Don Higgins - Rezoning. This was dropped as the property has been reportedly sold. • Highway Department2213ot Site at Gibson Cove Area. A letter was read from Charles Powell, Borough Chairman. Commissioner Anderson moved approval. Commissioner Edris seconded and was followed by a unanimous roll call vote. VII New Business A. Commissioner Sutliff moved P & Z Commission agenda be closed Friday at close of office hours. Commissioner Juelson seconded. Unanimous by voice vote. B. Commissioner Anderson brought up street requirements of Subdivision Ordinance. Engineer Barr explained Ordinance does not require either excavation or fill if existing material suitable. VIII Audience Participation A. Mr. Loren Lounsbury was not present. Acting Chairman Cornelius suggested future changes in subdivision regulations be submitted and discussed with Borough Engineer prior to submission. Borough Engineer to prepare comments on present proposal for, special meeting to be held next Wednesday after regular meeting. IX Minutes of Boards and Commissions: Assembly e 7/15/65 No Comment X Adjournement, The meeting was adjourned- at 11:55 p.m. e-42.4WD • Ppeldr. %.4..Pe" *Ay / Cirft 54e, YAW O 44 Cop PeCC:710erid 11)/5 v.Cirfrfiey. /2 zzio 5 hereby rUty that I have surveyed the following d,.cijiW ProPertir and that the iinprovements situated thereon are within the Pre:Party linos and do not overlap or encroich on the property Wing witlitellt Ineneln. that no Improvements oh properly tying adjacent thereto encroach •nri the premises in question end that there ate no ramdwaps. iranamis- eon tines or other visible enent nVOW riVrtriF eXePr, sr. Med hereon. Doted this Lt a a , Sae SCUM IMAM EINGIAiN PAiEil�Ifii AMP Zaino ccoasseat MilattaillaILASUILIM I Call to Order The meeting was called to order at 7:40 p.m. in the Courtroom by Acting Chairman Cornelius. II Roll Call Present Absent Sid Urie Eddie Franklin Dick Juelson Bill Frost Jim Duros Phil Lnderson (late) Chuck Edris George Cornelius Also present: James R. Harr, Borough Engineer and Bill Poland III Minutes of Previous Meeting The minutes of July 7 and July 14, 1965 were read and approved as read. IV Communications and i>ppearai e Requests P.. ii -Ace by COmN ss Loner to d::cb i " n r 1' -; • , or 1engi.neer Barr on sanitary Urie - Aye Sutliff Aye Duros - Aye Edris --Aye Anderson -- abstained as arried too late Variance in setback and lot requirements --letter from Ci.ty. Engineer. Lot 15, lock 16., part (_:dial Townsite. James Barr read letter from City Engineer. :Mrs. Kessler appeared for Mr. Carbin, the reputed purchaser of the lot from Mr. Higgins, and stated Yr. Carbin did not require rezoning but did wish a variance. There was a motion, by Commissioner Anderson that variance be granted.. Seconded by Cetree.Urie. Commissioner -Anderson added that with approval of se :end., Nr. Carbin be required to present written easement for egress and ingrt s . After discussion, Commissioner Anderson withdrew motion. Commissioner Anderson moved that public hearing be scheduled. Seconded by Commissioner Duros. Passed by voice vote. ee . Petition for Variance -- Carpenter's Union.,arlci u regulations. Petition read by Barr. Commissioner Anderson moved request be set for public hearing. Seconded by Commissioner Urie. Passed by voice vote. D. Mildred Markham - Building Ie.rmit. Engineer Barr read a pertinent section of the Ordinance. The building has a non -conforming use presently and cannot be added to. Commissioner Anderson moved that the area on the left side of road from City Limits to Harry Felton's be set up for public hearing with a view to rezoning to Commercial. Seconded by Commissioner Juelson. Carried by voice vote. Port Lions - Final Plat. Borough Engineer's report was read. Commissioner Edris moved acceptance. Seconded by Commissioner Juelson. Commissioner Edris added subject to signature of dedication certificate. Second confirmed voice vote approved. c E. RO MEMBERS ALBERT R. VACURA, CHAIRMAN DONALD MELLISH, VICE CHAIRMAN ROBERT PETRO, SECOND VICE CHAIRMAN /4614& STATE HOUSING AUTHORITY T. E ELLIOTT EXECUTIVE DIRECTOR Kodiak Island Borough P. 0. Box 1246 Kodiak, Alaska Attention: Mrs. Jan M. Williams Borough Secretary Gentlemen, July 2, 1965 RECEIVELJ JUL 12 INS V(01MuLANI ri-0 U Re: Variance Request of Higgins, Lot 15, Block 16, Kodiak We are in receipt of a message from our Kodiak Project Office saying that you had postponed action on the request of Don Higgins.for permission to develop his property in a manner not specifically permitted by the Kodiak Island Borough Zoning Ordinance. Whether or not he is applying for a variance or a zone change is not clear to this !office. We will assume, for purposes of discussion here, that he had applied, in proper form, and at proper time, for both. Lot 15C, Block 16, being approximately 59' X 152',contains nearly 9,000 square feet, and according to your zoning ordinance, in the Residential zone, could accommodate 5 dwelling units. It would be proper, if the conditions warrant, for the Commission to grant a variance of the lot size requirement Co allow perhaps 6 -or-7 dwellirig Units -to -be built -On this land;'hoWever; if what*is being requested is permission to put in apartments and offices, then thisjs a use of the land not permitted in that zone; hence, a petition for zone change would then be considered. At the present time the commercial zoning in this area takes in'only those lots fronting on Benson Avenue, and these lots are within the Urban Renewal Area. You will recall that early this year, the Borough Planning Commission passed a motion suggesting that the problem of access and drainage for the properties behind -the frontage lots should be considered by us, and that a solution be found. The solution to this problem would involve a change of the project boundary and such change is a slow process; however, please be assured that we are working to resolve this problem. This request from Mr. Higgins has its effect on this problem, and the Commission and the Authority as well as the City have a responsibility to resolve it with the greatest benefit to the entirecommunity. TELEPHONE BR 6-8201 • BOX 179 • ANCHOR AGE, ALASKA ,41:24/24 STATE HOUSING AUTHORITY Kodiak Island Borough -2- July 2, 1965 We have attached a sketch map of this area on which we show the present boundary and the new boundary, if we are to acquire sufficient land to provide access to these properties. You will note that the Higgins property does not now have legal. access. If the Authority is to acquire sufficient land for this street, a portion of Lot 15C would be necessary, leaving approximately 6,500 square feet. On such a property 4 units could be built according to your ordinance. If you wish, a variance could be granted to allow, perhaps, six dwelling units on this property, and would constitute a good use of the property. If it should develop that the Authority does not provide the access road which has been requested, then it falls upon you, the Commission, to provide for the future development of.this road, and to require that Lot 15C secure some sort of access (legal) before being allowed to develop: Next let us consider the matter of a petition for zone change(assuming that it has been properly filed). Changes to commercial zoning will be before you forevermore. It is the job of the Commission to weigh such requests against the needs of the entire community, in order to determine whether the economic growth and development of the community will rest on this proposed change. Is there insufficient land already zoned for this purpose in the community? If this particular use is not developed here, what will happen? Where will it locate? Would a change in zoning for the economic benefit of this property owner be fair to other owners who have been paying taxes on commercially developed property, or owners of undeveloped commercial property. What are the overall plans for the development of the community? Does the requested change follow the General Plan? The Alaska State Housing Authority, as owner of adjacent property zoned for commercial development, is opposed to a change in zoning of this property because such change would have a debilitating effect on the property owned by the Authority (6n,behalf ofthe_community). by dilluting the value of that property for use for commercial development. There can be only so much commercial development for a given population, and increasing the land area available for commercial development does not increase the business activity of the area. The Authority's opinion is that this change to commercial is not necessary to_the orderly development of the community, that it would, in fact, be detrimental to such development. Please note that whatever course is taken, the developer will be required by your ordinance to provide parking. We ask that you take into consideration the necessity of a road being built in this area, whether by the Authority or the local government, and Make provision for such road. Attachment MMP:nh Very truly yours, ALASKA STATE HOUSING AUTHORITY o a u D. Enunal Assistant Executive Director /41,jx, p 47.0 R -A eo / 7:::/-• cf;,c. 12A2'01' • : - • -ikesE PT- - Boa/LA.1)4" • • : —;•;,, • • -•• 1 P& Z Commission - June 22, 1965 Page 2 G. De ar Reuost for new Deit Site - referred from Assembly. A letter from Paul. H. Stover, Foreman, Naintenance Section, requested the Borough to propose two sites suitable for depot with roads and utilities available with an area of 5 acres per site. Nr. Stover stated that the Juneau office has taken over the responsibility of negotiating a site with the Borough but that he would like prior knowledge of the areas involved before negotiation. Commissioner Anderson toyed that the Borough Engineer meet with the Dept. of Highways personnel in locating two feasible sites. Seconded by Commissioner Juelson with voice vote unanimously in favor. Petition for vacation of alle Carenters Local 2162. This is a 30 foot wide alley between lots 35 and 36, Erskine Subdivision. Commissioner Kraft moved to grant vacation. Commissioner Cornelius seconded. Voice vote was unanimously favorable. Building Permit referred from City - WM. Damery. Mr. Damery wished to move a building from Lot 56, Block 12, Aleutian Homes Sub. to Lot 1C, Block 7, Leite Addn. for use as a storage building. The building is on skids and will not be occupied. Commissioner Cornelius moved to grant permission. Seconded by Commissioner Kraft. The motion carried by voice vote with Commissioner Duros voting no. V. Hearings, Ordinances, and Resolutions: A. Urban Renewal - Public Hearin. No objections being heard, Commissioner Cornelius moved to approve the plat of Blocks 4,5,6,7 and 8, New Kodiak Subdivision. Commissioner Anderson seconded and voice vote vas unanimous. T.T. Jackson - Public Heari . r:r. Jackson requested approval of the Commission to establish a trailer park on Lots 4, through 6, Plus lot 16, USS 3233, which is presently zoned residential unclassified. Mr. Barr presented a drawing of a typical trailer installation as planned by Mr. Jackson. A petition signed by adjoining property owners, and another by adjoining residents were generally favorable. A petition to deny approval was presented by the Spruce Cape property owners. It was brought out that there are presently several trailers on Er. Jackson's property which appear to be deficient in sanitary facilities and eye appeal. Mr. Cornelius stated that he wished to go on record as requesting more public lands be made available for private use through sale. Eommissioner ialderson requested that a copy ofthe plat,of subdivision in question be presented. It was brought out by Barr that four copies of said plat had been presented for review at a previous e,eeting. Nr. Barr left to get copy of plat. Mr. Duros moved to deny request. Notion died for lack of a second. Commissioner Sutliff moved to approve request. Commissioner Juelson seconded. Roll call vote was three ayes and two no's. Mr. YrAft had previously been excused from balance of meeting by Chairman Lamme. C. DeWitt Fields - Public Hearin Nr. Fields requested rezoning of lots 7 and 8, Block 38, East Addn. from R2 to R3. Commissioner Sutliff moved to approve. Commissioner Lnderson seconded and voice vote was unanimous in approval... D. Don b ic Uearin, Rezone lot 15C, Block 16,,Kodiak Townsite from R 3 to Commercial. A letter from Alaska State Housing Authority stated objections from legal and economic viewpoints. Commissioner Cornelius moved that application. be referred to ASEA for clarification of land use, road status, legal questions, etc. contained in ASHk letter. SEconded by Commissioner Juelson, voice vote ' was unanimous. e. RD MEMBERS ALBERT R. VACURA, CHAIRMAN DONALD MELLISH, VICE CHAIRMAN ROBERT PETRO, SECOND VICE CHAIRMAN ,fieold4a STATE HOUSING AUTHORITY T. E. ELLIOTT EXECUTIVE DIRECTOR Kodiak Island Borough P. O. Box 1246 Kodiak, Alaska 99615 Attention: Mrs. Jan M. Williams Borough Secretary June 16, 1965 Gentlemen: We are in receipt of your letter dated June 11, 1965 advising us, as a property owner in the area, that a public hearing will be held on Don Higgins' request for variance on Lot 15, Block 16, Kodiak Townsite from R-3 to Commercial on Friday, June 18, 1965 at 7:30 P. M. in the Court- room. This letter will present our position regarding this matter. However, Mr. Bob Norman from our Kodiak. Project Office will also be in attendance. We are not absolutely certain which properties are affected by this requested "variance". Lot 15 has been re -subdivided and we, the Alaska State Housing Authority, own approximately the front one hundred and ten (110) feet. The balance is, from our records, further subdivided into three parcels one of which, Lot 15 C, is owned by Donald and Laura Higgins. In any event, our following comments would be valid, we be- lieve, if the proposed request covered all lots or only Lot 15 C. The properties do not at this time, nor have in the past, had adequate access from Benson Street. Until improved access can be obtained more intensive use of the property should be discouraged. It is the intent of the Urban Renewal Plan to make available commercial properties in the central portion of the town for redevelopment. Allowing additional properties to be utilized for commercial purposes will, in our estimate, detrimentally affect land values and marketability of commercial pro- perties within the project area. Proposals have been received by this agency for redevelopment of land between "Lot 15" and Benson Avenue TELEPHONE BR6-8201 • BOX .179 • ANCHORAGE, ALASKA "ReIdea STATE HOUSING AUTHORITY Kodiak Island Borough -2- June 16, 1965 predicated upon existing zoning and the Comprehensive Plan of the City Of Kodiak. The nature of these proposals and our evaluation of them could be seriously affected by the proposed request for variance. As the nature of the contemplated development was not made known to us, we cannot say to what degree these proposals would be affected. We are not in favor of the proposed change at this time. I should like to call to your attention Sec. 5,(b),(3) page 32, Variances, as found in Volume III "Borough Manual -Planning, Zoning, and Public Services", Local Affairs Agency (copy attached). This section clearly states that it is, by court definition, illegal to grant a variance that permits a use in a district that prohibits said use. Further, it should be understood that a variance allows for certain flexibility concerning controls upon the de- velopment of a piece of property and is not a method of "spot Zoning" (also see opinion of Anchorage City Attorney, copy attached). If it is the intent to re -zone the property, then I would suggest that you hold the required public hearing for purposes of hearing a petition to re -zone from, in this case, R-3 to Commercial, otherwise you may be sub- jecting yourselves to legal complications should your decisions ever be challenged. Thank you for your notice and we would be pleasedto be notified of any action taken on this matter. CEO:bt Very truly yours, ALASKA STATE HOUSING AUTHORITY ? Donald D. Assistant Executive Director go to one office instead of two before beginning construction. (b) Board of Adjustment. The borough assembly serves as the board of -adjustment for those areas outside of cities and for cities which do not exer- cise this power. For areas within cities, city councils may serve as boards of adjustment. A borough board of adjustment exercises the following powers: (1) Appeals. Hears and decides appeals where it is alleged that an error has been made by the zoning officer or other administrative official. (2) Exceptions. Hears and decides requests for exceptions to the zoning ordi- nance. Exceptions permit, for example, the construction of a temporary tool shed in a residential area for use during construction of a residential dwelling. They also include such uses as airports or cemeteries which, although listed in the zoning ordinance, can- not be allowed in various districts without approval by the board of adjustment. See Appendix A efor a sample application permit form for a zoning exception. (3) Variances. Authorizes variances upon appeal in specific cases. A variance permits the waiving of requirements concerning an allowed use when such requirements might otherwise pro- hibit or limit that use because of some peculiar characteristic of a particular property. The board might, for example, permit a smaller than usual back yard in an odd shaped lot.' • • A variance cannot be given to permit a use not allowed in a district. The courts have ruled universally that a use variance is illegal and amounts to "spot zing, which is giving a special privilege to one property owner which is not available to other property owners in the same district. (c) Amending the Zoning Ordinance. The zoning ordinance should not be "engraved on bronze" nor can it well serve the public interest if it can be amended to suit the whims of an individual property MEMORANDUM _TO: Board of Adjustment, Planning Commission and Board of Examiners and Appeals FROM: City Attorney SUBj: Variances and Exceptions DATE: - September 20, 1957 -1; Variances Relief may be granted by way of a.variance on proof of "practi- • cal -difficulty" �r "unnecessary hardship." "The board of appeals, adjustment or review, except. where power is limited to recommendation, may grant a' variance if the restrictions contained in the ordi- nance cause °practical difficulty° or °unnecessary hardship° to an'owner°e property.The proof must show that the property suffers a singular disadvantage .'theieby. The board in each case act on some reason- . able basis in harmony with the intent and -general ' purpose of the ordinance and statutes." "To justify a variance for unnecessary hardship is conformity with intent and purpose of zoning ...ordinance as a whole, it must appear.th,Tt the change will not substantially affect the comprehensive plan of zoning and strict adherence'will cause hard- ship which is unnecessary in order to carry out general purpose of plan. Delaney v. Zoning Board - of Appeals of Hartford, 134 Conn. 240, 56A. 2d 647; Stavola v. Bulkeley0 134 Conn. 186, 56A 2d 645." . "In Carney v. City of Baltimore, 93A. 2d 74, it was held that an exception to a zoning ordinance is justified when the need therefor is substantial and urgent and not merely for the convenience of the applicant; that there was not sufficient reason granting an exception to the zoning ordinance regulating the side and rear yard space, that the occupant required an addition -to the dwelling be- cause of difficulty in ascending- stairways." . _ "In Preye v. Board of Adjnstmento 91A -2d 597, the court said:' °The undue hardship must inhere in the particular premises for which the variance is claimed. A variance cannot.legally be granted for reasons which also apply to other proper- ties in the same neighborhood. A board of adjustment may exercise the discretionary power entrusted to it by the statute in favor of an applicant only where his plight is attributable to circumstances.uniquely touching his land as distinguished from conditions that affect the rest of the neighborhood. Lummund v. Board of Adjustment of Borough of Rutherford, 6 N.J. Super. 4740 480, 69A. 2d 361 (Law Div. 1949); Ibid, 4 N.J. 577, 582-583, 584, 73 A. 2d 545 (1950). Tzeses v. Board of Trustees of Village of South Orange, 22 N.J. Super. 45, 91 A. 2d 588 (Appi, Div. 1952), cf. Ramsbotham v. Board of Public Works of City of Paterson, 2 N.J. 131, 135, 65 A. 2d 748 (1949), and 165 Augusta Street, Inc. v. Collins, 9 N.J. 259, 266 87 A. 2d 889 (1952) (dissent). °The factors which might legally support the variance herein granted by the board of adjust- ment are distinctly lacking. The premises in question exhibit no "exceptional narrowness, shallowness or shape," or "exceptional topo- graphic conditions." The lots measure 25° x 100° each, and make up a well-proportioned tract of 75° x 100° fronting on two streets. The three lots, individually and as a unit, are perfectly rectangular. Nothing in the record .indicates that this -property differs from any other in topography; the photographic exhibits show a flat piece of land, typical of many another city street, corner. The owner estab- lishes no "other extraordinary and exceptional situation or condition whatsoever that is pe- culiar to its lot, and to it alone." There is nothing that characterizes this corner lot as uniquely circumstanced, in contradistinction to the general conditions in this residentially zoned area.°" °In Pennsylvania, the court held: fli°The reasons of a board of adjustment for granting a variance from a zoning ordinance must be substantial, serious and compelling, and the power is to be exercised only under peculiar, and exceptional circumstances in order that zon- ng law for protection of public rights be not . unduly impaired. --Kovacs v. Board of Adjustment of Ross Tp., 95 A. 2d 350, 173 .Pa. Super. 66.° General Digest, Second Series, ,Vol. 20==2d No. 4, P. 305 (Advance sheets) However, the Board should refuse to grant relief when the hard- ship is self-created. "Where the hardshipis not created by the restric- tions in the ordinance, but by an act of the owner or predecessor in title, or by the acquiescence or con- sent of such owner or predecessor in title, the hard- ship is regarded as self-created and is, therefore, no ground for a variance. Hardship created by purchaser subject to zoning restriction. (See Section 3 of this Chapter, °Appli- cation by purchaser for variance.°) In 58 Am. Jur. Sec. 208.P. 1053, the author says: - °Acts or faults of the owner or applicant ordinarily a claim of unnecessary hardship, cannot be based upon conditions created by owner or applicant.° Conn.: In Misuk v. Zoning Board of Appeals of City of Meriden, 138 Conn. 477, 86A. 2d 180, the court said: °***It must be borne in mind that the predi- cament which arose did not originate in the ordinance, or in other conditions beyond the control of the Whites. The difficulty or hard- ship which now plagues them was created by them- selves. To be sure, they acted under a mistake but it was one of their own making and was assumed by conduct which might well be classified as reckless***.° 'N.Y.: In People ex rel. Polcini v. Scofield, 279 App. Div. 762, 108 N..Y.S. 2d 778, at page 779, the court said: °In our opinion there was substantial evi- dence before the Board of Appeals to constitute a reasonable basis for'its findings that the hard- ship of which petitioner complains was self- created, Matter of Thomas v. Board of Standards and Appeals, 263 App. Div. 352, 355, 33 N.Y.S. 2d 219.°" Likewise, it has been held that where. improvements are made in. -3- violation of the zoning ordinance, a variance may not be granted. Expenditures made on a permit illegally issued or where no permit is issued or where obtained by misrepresentation or fraud is*no ground for a variance. "In Kovacs v. Board of Adjustment of Ross Tp., 173 Pa. Super, 66, 95A, 2d 350, the court held that a party can obtain no advantage from approval of construction where such approval has been gained by deception, and that a grant of variance will not be upheld." It has also been held that when a purchaser takes property bur- dened*with a zoning restriction and he has knowledge of such re- striction, he cannot then expect to obtain relief by way of a variance. "Tzeses v. Bd. of Trustees of Villa of So. Orange, 22 N.J. Super. 45, 91 A. 2d 588, held a property pur- chase made with full knowledge of the existing restric- tions contained in the ordinance is not conclusive in determining the'existence of hardship, but such know- ledge is a material element to be considered by the Board. In Protomastro v. Bd. of Adjustment of City of Hoboken, 70 A. 2d 875, reversing 3 N.J. Super 539, 67 A. 2d 231, a variance was sought on the ground that the building •restriction contained in the deed of Con- veyance caused him unnecessary hardship. The Board granted a variance on that ground. The Court held that though the property was located in a district zoned for residence use, and burdened by such restric- tion, that the owner was not thereby entitled to a variance from the zoning ordinance upon the ground of unnecessary hardship. The court held the burden caused by the restriction was voluntarily accepted by the owner of the lot when he purchased it. In Lumund v. Board of Adjustment of Borough of Rutherford, 6 N.J. Super. 474, 69 A. 2d 361, aff°d 73 A. 2d 545, the Court held that one who purchases land is presumed to possess knowledge of the'appli� cable restrictions in the zoning ordinance. In this case, action was brought to review the decision of the Board of Adjustment denying a variance to permit the erection of a motor vehicle service station on -4- plaintifflOt, situated in a residential zoning district. The Board was sustained." Variances are not denied because of an objection by a competitor that the granted variance will result in competition. It is an abuse of the zoning law to restrict competition merely for the sake of 'safeguarding the rights of a competitor. It has also been held that while aesthetics may be considered, this factor cannot be sole grounds for the granting or denial of a variance. "Where an application is made before the board of appeals, adjustment or review or the planning board, for a variance on the ground of aesthetics, the appeal should be denied as such aesthetics is not ground enough to warrant such -relief. In Crone v. Town of Brighton, 119 N.Y.S. .2d 877, 893, which overruled Olp v. Town of Brighton, 193 Misc. 1079, 19 N.Y.S. 2d 546, aff°d no opinion 29 N.Y.S. 2d 956, the -application was made to apply for a permit to build and operate a gasoline service station; the court sus- tained the writ of review, annulled the determination of the Planning Board and the Board of Appeals, and ordered a temporary permit to be issued for five years. The court said: °In any event, while aesthetic grounds are not to be completely disregarded, they are not enough to warrant a denial.° (Citing Holy Sepulchre Cemetery v. Board of Appeals, 271 App, Div, 33 43, 60 N.Y.S. 2d 750, 757; Dowsey v. Village of Kensington, 257 N.Y. 221, 230, 177 N.E. 427, 430, 86 A.L.R. 6420) In the Holy Sepulchre case the court at P. 757, said: °Lastly, while it probably would not be permis- sible to have denied this request on the basis of aesthetic grounds, alone, still objections so based, again, need not be completely disregarded. Dowsey v. Village of Kensington„ 257 N.Y. 221, 223, 177 N.E. 427, 86 A.L.R. 642r, The Board of Appeals was not required to rule out the idea that the presence, of the cemetery might, of itself, be a baneful in- fluence which would retard residential development in the particular section.° -5- In the case of Commercial Properties, Inco v. Griffin, N.Y.L.J., Novo 20, 1953° at P. 1178° the court said: °Lastly, the Board, in part, predicates its denial of petitioner°s application upon the con- clusion that the erection of a gasoline service station by petitioner would not be in the general welfare of the community as a whole. °Aside from the fact that such statement is conclusory in its nature, it is obvious that such conclusion was based upon no more than aesthetic grounds, which are not enough to warrant the Board°s denial.° (Citing Crone v. Town of Brighton, 119 N.Y.S. 2d 8770 893." The purpose of the powers granted to the Board is to provide a way of flexibility in the administration of the zoning ordinances. "The Board of Appeals should take into consideration that zoning ordinances are not intended to be mere straightjackets to be applied and held rigid by purely bureaucratic authority. The letter of the ordinance must yield in instances of extreme hardship and accord- ing to conditions of irresistible growth and develop- ment; properly admini teged zoning ordinances do not destroy, but add to values; arbitrarily administered or adopted, without regard to the proper elements of police power, they become instruments of hardship and tyranny which can only be relieved by multitudi- nous applications to the court. The final determin- ation of the proper application of the rules as adopted ought not to be left to the final determina- tion of an administrative officer. .A citizen aggrieved should have opportunity to 'appeal to a quasi-judicial body with power to view and study the situation, whose determination, in the absence of bad faith or abuse of discretion, would rarely be disturbed upon review by a court." It is held that the Board may not destroy the provisions of the statute or ordinance in granting a variance. It can merely vary them to prevent injury when the strict pplicatio of the ordinance would cause "unnecessary hardship" or "practical diff the specific problem. culty" to 1 '` The courts are unanimous in finding that financial loss alone )not ground for a variance although it may be a factor. -6- "Though finandial or pecuniary loss or dis- advantage standing alone is not a ground for a variance, it may be considered by the Board as a factor in determining whether a variance should be granted or denied." .Rathkopf, Charles A. and Rathkopf, Arden H., The Law of klalaz and Planning Volume I. "°***Financial considerations alone*** cannot govern the action of the board. They are bound to take a broader view than the apparent monetary distress of the owner. Otherwise, there would be no occasion for any zoning law. Norcross v. Board of Appeals, 255 Mass. 177, 185, 150 N.E. 887, 890; Thayer v. Board of Appeals, supra, 114 Conn. 22, 157 A. 273. In accord with these principles, this court has decided many times that financial detri ment to a•single owner of. property would not of itself warrant relaxation on the ground of practical difficulty or unnecessary hardship.***°" "In Searles v. Darling, 83 A. 2d 96, the Court0 at P. 1000 said: °Iri the first place, Darling°s position, fairly and simply interpreted, is that this variance would be of substantial economic advantage to him, or, conversely, thatdeny- ing it would create economic hardship. Ob- viously, if the whole aim of a zoning plan is not to be abruptly defeated, people cannot be granted permits to vary zoning ordinances whenever they believe and are willing to testi- fy that it will pay them to apply their pro- perties to a variant use. Virtually all appli cants would so testify. Moreover, the courts, as a matter of legal principle, do not grant variancesbased upon a simple claim of economic advantage, and most especially not unless there is proof that it is impracticable to adapt the property in question to a conforming use. The authorities so holding are innumerable. See McQuillin0 MuniciEti Cor orations (3d Ed.), Vol. 8, Sec. 25.168; Anno. 168 A.L.R. 30. There is not only no such evidence of inability to use this property for a conforming purpose in this record, but the possibility that such is the case.is removed by Darling°s testimony that there is no hardship involved here ex- . cept what we. have already summarized..° (See also Antieau, gaRLELail Corporati n aw, Vol. Sec. 7.09." Finally, it is undoubted that the power to grant variances from the strict letter of the zoning ordinance should be used sparingly. "The power to grant variances from the strict letter of the zoning ordinance should be used spar- ingly. The powermust be exercised within the limits of authority granted to the board and within the spirit and intent of the ordinance and must be applied reasonably to maintain and not to abolish the distinctiveiclassification created by the ordinance.'" Rathkopf, Charles A. and Rathkopf, Arden H., The Law of, 4oniaa and 21annins, Volume I. . "In Rommel v. Walsh, 127 Conn. 272, 278, 16 A 2d 483, it was held that °In any determination of the question whether there.exists a situation of practi- cal difficulty with unnecessary hardship justifyina.the relaxation of zoning regula- tions, there is, necessarily, a balancing of the conaideratians involved in the general public interests and those affecting the individual. °It Is only in such instances and under exceptional circumetances that It can be properly utilized.°" 2. Exceptions "If the applicant for an °exception° as distin- guished from a °variance° complies with the required conditions, an exception should be granted. Practi- cal difficulty and unnecessary hardship need not be shown; relief can be granted in such cases only for uses specifically enumerated for such °exception.°" Rathkopf, Charles A. and Rathkopf, Arden H., The Law of lanlaq and Pia/ILL/1s, Volume I. "In Harrington v. Board of Adjustment, 124 60W0 2d 401 the court said: °As we view the statute, there is an essential difference between the provision for special exceptions and the provision for variances. The latter means that sub- stantially the same -thing. shall be done by the Board as that which is provided by the ordinance, but relives the enacted provision -8- Of its rigidity in specific cases wherein 1 --- a literal, a rigid, an absolute toe-the-Mark interpretation would work unnecessary hard- ship. By giving the Board the power of variance from the ordinance, it was not in- tended the Board should be permitted to perform an act or grant a privilege that would be in conflict with the provisions of the ordinance." June 11, 1965 =Mr. Don Higgins Box 1231 Kodiak, Alaska Dear Mr. Higgins: This is to notify you that the public hearing for your variance request will be held Friday, June 18, 1965, at 7:30 p.m. in the Courtroom. JNW M. Williams Borough Secretary , K011ikK ISLAND BORSUGH BOX;1'296& ' MASKA 99615 June 11, `1965 This is to ;notify ,you that a Don Higgins' request for, Variance 'onsite froom R3 to Ceske -era' on in the:Courtroor . 1, d © / public xb aring4 w441a. be held on on Lot' 15., • Block 16, 6((diak Fra.ay, June 1$, 1965, As you area prop'c e ' a the area, express your opinion on this var$ance : r'egnest You Yta y -yob' .fan lot. w.411ia is Irs , ) rough Secretary ou .wish, had .time, U may .�. 61/ KING CRAB CAPITOL OF THE WORLD a_zz di/P3 /c0_7 2-2— 5-5 F 7 / -% 7/f - —7- )4,--e42-e-77 - / 5,1 Coimitsiomer Cornelius staled be regulated to be pOesent at Fres*lin std caitiot The final inked prints Ot Kodiak SUhavision,,/,0104ka 404 4 presented to cemplywi.th tfie ordinance ei ywursekuimpi copies. • • A request by Lodiak Bible Chapel so lease Bor040 lands or we as a chutch site was made by Rev, Fh4lips. ComisiSsioner CorneUiSamoitei that Rev. Phillips confer with the Borough ingineer ihd select several sildific site for recommen— dation by the Commission to the Asammbl . SioorWW4* Odistiesdener Anderson and carried unanimously. re „ • A building permit request by Mildred MarkhoeCto move a small warehouse from Lot 3, Block 2 to Lot 3, Block 1 Allman Additioo 1,4,4 roAd; Comaissioner Felton moved that it be approved on a temporary basis for not longer than 1 yak'. Commissioner Anderson seconded and carried unanimously. A request by DeWitt Fields for rezoning of Lots, 7 and 8, Block 38, East Addition from R2 to R3 wca changed verbally to a variance request. The hearing is to be scheduled for June 11 and the necessary property owners are to be notified. The final plat for resudbdivision of Lots 17, Block 16, Kodiak Townsite, by J043 Eggemeyer was preaented. Commissioner,Cornelius moved for final approval. subject to presentation of all proper affidavits, certificates and dedications prior to recording. Seconded by Felton and carried unanimously. Commissioner Anderson moved for approval of Bi restoffis request for a teeeporary trailer to be located en Lot 3, USS*'provided that approval of the State Sanitarian is obtained. The approval to be on a temporary basis not to exceed two years from March 27, 1964, Commissioner Felton seconded and carried unanimouely. A request for a variance of zoning for Lot 15, Block 16, Kodiak Townsite by Don Higgins from R3 to Cormerical was read together with a petition signed by the edjeining land miners. Moved by. Commissioner.Anderson that this be approved for public bearing. Seconded by Commissioner Cornelius and carried unanimously. Commissioner Felton moved that the request of T.T. Jackson for two temporary trailers on Lots 1 and 4, USS 3233 be granted on a temporary basis not to exceed two year from 1.jarch 27, 1964, provided that approval of the State Sanitarian is obtained. Seconded by Commissioner Cornelius and carried unanimously. con Anderson moved that the T.T. Jackson, request for a trailer court be approTeed for public hearing. Commissioner Felton seconded and carried unanirnousl A discussion of the one vile strip around the Kodiak Wildlife Refuge was held. \\\\ ComEissioner Felton movedthat the Commissioner favor the request of the Kodiak Islend Stockgrowers Seconded by Commissioner Cornelius. Commissioner Cornelius moved to mend that the results of this discussion be directed to the proper authorities for study of the highest and best use. 143 for lack of a second. The original motion was carried. A letter from Ralph Jones, CityManager, informing the Commission of availability of Federal 701 funds for comprehensive planning was read. Commissioner Cornelius moved that the Commission request that the Assembly attempt to obtain 701 funds for Borough planning. Seconded by Commissioner Franklin. not Commissioner Felton moved to amend that money butpersonnel be obtained. Lost for lack of a second. The original motion was carried. Meeting adjourned at 11:58 p.m. Bes ssubilitted, 7. ZONING CHANGE REQ FOR: May 17, 1965 To Whom It May Concern: This is to certify that we the undersigned have no objection to Mr. Don Higgins building a Commercial Building on his Lot #16 as shown on the City Map. Lot to be changed from Residential", to Commercial: v Request is for Variance on Lot . Like other Lots in Area NAME ADDRESS ES ---3/• N\r‘r tb, NOTE: The above People are the Property Owners within the area specified by Burrough Regulations. All builcUnct CO -de -S will -be complied witha wh-eh the Building -is going to e ulit. Sincerly, Don HIGGINS BUILDING DEPARTMENT — CITY / BOROUGH OF KODIAK APPLICATION FOR BUILDING PERMIT AND CERTIFICATE Applicant to fill in between heavy lines. OF OCCUPANCY BUILDING ADDRESS CLASS OF WORK UILDING PERMIT NO, NEW DMOLISH LOCALITY ALTERATION REPAI NEAREST CROSS ST. TO VE DATE ISSUED OF BUILDING if " 0 NAME " - • -?-77-/'/11-1 SIZE OF BUILDING ,„'IL.,11) 4),".‘170,4:1—. HEIGHT MAIL ADDRESS OF ROOMS CITY TEL. NO. NO. OF FLOORS , OF BUILDINGS VALUATION BLDG. FEE / 5 PLAN CHK. FEE TOTAL z z NAME NO. OF BUILDINGS NOW ON LOT BU NG U NG ELECTRIC NO. OF FAMILIES FOUNDATION ROUGH ROUGH ADDRESS SIZE OF LOT F RA SEPTIC TANK FINISH CITY OF BLDG. NOW ON LOT 'W./2 PLASTER SEWER FIXTURES SPECIFICATIONS FLUE GAS MOTORS STATE LICENSE NO, FOUNDATION INA FINISH FINAL 0 z 0 NAME - / / IF MATERIAL EXTE RIO R, PIERS WIDTH OF TOP ADDRESS • DTH OF BOTTOM CITY , EPTH IN GROUN R.W. PLATE (SILL) STATE LICENSE NO. / i'r,,K7::..?-,r;:- ; IZ SPAN SUBDIVISION DERS OIST lst. FL. 1ST 2nd. FL. OT NO. BLK. JOIST CEILING EXTERIOR ST DO NOT WRITE BELOW THIS LINE i. Type of Construction I, II, 111, IMN, VI 2. Occupancy Group A, 8, C, D, E, F, G, H, I, J 2, 3, 4, 3. Fire Zone 1 21324 INTERIOR ST ROOF RAFTERS ARING WALLS COV R NG EXTERIOR WALLS INTERIOR WALLS ( REROOFING FLUE F I REPLACE FL. FURNACE KITCHEN WATER HEATER FURNACE GAS OIL • I hereby acknowledge that I have read this application and state that the above is correct and agree to comply with all City Ordinances and State Laws regulating,building construction. Applicant ' " ••• ' , I k ' F11 -"1,\A rn PLOT PLAN 0 SETBACK S'TREET PLANNING & ZONING INFO. ZONING DISTRICT TYPE OF OCCUPANCY NUMBER OF STORIES TOTAL HT. AREA OF LOT FRONT YARD5ETBACK FROM PROP. LINE SIDE YARD SETBACK FROM PROP. LINE REAR YARD Approved: CHIEF BUILDING OFFICAL Approved: ZONING.ADMINISTRATOR By: By: