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KODIAK TWNST BK 19 LT 30 & 32 - Code Enforcement
KODIAK ISLAND BOROUGH PLANNING AND ZONING COMMISSION WORK SESSION NOVEMBER 28, 1984 AGENDA TIME: 7:30 p.m. PLACE: Borough Conference Room Case 84-098. Appeal from an Administrative Decision Perrozzi - Lots 30 and 32, Block 19, Kodiak Townsite Alaska Subdivision., s=' lasts. T.I.. Guru ,.. : Y. Scope of Services - Code Update (J S3: Review o, Updated Zoning Map 1 Y✓.' pcoming P & Z Work Session Activities Goossen Request - December 5, 1984 E Heinrichs Request - December 5, 1984 k Pit Latim.ntss,ar.a ( 4 c1.1dt Ls..... .) Cho CNA. 4° ra.:ca d ia.a_L 4bot.a s-. Coda 6.414. t -;n c.R Ll.. S.. 1. sm- iZt ) . tea. pyre-. L ' 1 Linda Freed, Director Community Development Department Kodiak Island Borough 710 Mill Bay Road Kodiak, Alaska 99615 -.rah Islond Borough Kodiak, Alaska RECEIVED NODI 2 °'°'D-1 ,,, P M RE: (Case_84-098) Appeal from an Administrative Decision - Perrozzi Lots 30 and 32, Block 19, Kodiak Townsite Alaska Subdivision Dear Linda: - At the special meeting held November 26, the Kodiak City Council, sitting as the Board of Adjustment, reversed the Kodiak Island Borough Commnlity Development Department's July 26 administrative decision voiding Building Pewit ##5131 based on the following findings of fact and conclusions of law: FINDINGS OF FACT 1. On or about August 5, 1983, Joe Perrozzi applied for and received a building peLait for the construction of an addition to his residence on Rezanof Drive West within the City of Kodiak. The proposed addition in- volved the construction of an additional story onto Mr. Perrozzi's home. Mr. Perrozzi apparently paid a fee of $143.64 at the time the permit was issued. 2. Prior to its issuance, the building permit was reviewed and approved by William Hodgins, the Zoning Administrator for the Kodiak Island Borough Planning Department, who was responsible for assuring compliance of the building plans accompanying the peLaiLt application with the Borough zoning laws. 3. In reliance upon the building permit, Mr. Perrozzi did sone work on the foundation and footings of his home and -replaced certain selected joists. In July of 1984, he also apparently acquired and moved onto his property certain roofing material to be used in connection with his plans to add the additional story. A neighbor, Mr. Tim Hill, saw this material and, on July 18, 1984, asked the Borough Planning Department to check into the validity of Mr. Perrozzi's building permit. 4. Mr. Hill owns a house which is behind 14r. Perrozzi's in the sense that the Perrozzi house is between Mr. Hill's house and Rezanof Drive West and the City boat harbor. Mr. Hill's primary concern was and is that the addition of another story to Mr. Perrozzi's house will block or partially block the view to be had from Mr. Hill's house, a circumstance which he feels will significantly lower the value of his property. POST OFFICE BOX 1397, KODIAK , ALASKA 99615 PHONE (907) 486-3224 Ms. Linda Freed November 27, 1984 Page 2 5. The one-story addition for which Mr. Perrozzi obtained the building peLwit would result in his house having a total height of 29 feet. This is within the 35 -foot building height limitation mandated by KIBC 17.19.050. It is uncontested, however, that the addition would increase the cubical content of the building. 6. Mr. Perrozzi's house does violate the setback requirements for front, rear, and side yards mandated by KIBC 17.19.040, which is applicable to lots zoned R-2. It is uncontested that Mr Perrozzi's house is in an R-2 district. Mr. Perrozzi's house is, however, a non -conforming structure within the meaning of KIBC 17.36.040. It is therefore lawful and may be continued so long as it remains otherwise lawful. 7. The proposed addition to Mr. Perrozzi's house would not change the location of the house on the lot nor would it reduce the amount of yard or change the existing yard setbacks associated with that house. 8. On July 20, 1984, a site investigation by Borough staff revealed that Mr. Perrozzi's house was a non -conforming structure because -of its failure to meet yard set -back requirements. On July 23, following consultation with the Borough Attorney, Borough staff called Mr. Perrozzi, infoLued him that bis building permit was null'and void because it was signed in conflict with KIBC 17.03.060, and told him that he would have to obtain a variance from KIBC 17.36.070C in order to continue lawfully with his building plans. On July 26, a written confirmation of this administrative decision was hand delivered to Pr. Perrozzi and he was told that any further construction on his home was to cease immediately. 9. On both July 27 and July 30, 1984, Mr. Perrozzi was served with com- plaints alleging his failure to comply with the order to stop work on his house. Court proceedings relating to those complaints as well as a civil action filed against Mr. Perrozzi in connection with this dispute are still pending. 10. Sometime prior to July 31, 1984, Mr. Perrozzi filed with the Borough Planning and Zoning Commission a timely appeal from the administrative decision that his building permit was null and wid and, at the sane time, he requested a variance from KIBC 17.36.070C. On August 6,1984, the Com- mission denied Mr. Perrozzi's appeal from the administrative decision void- ing his building peLwit and denied his request for a variance insofar as the construction of an additional story to Mr. Perrozzi'•s house was concerned. It approved a variance which would permit Mr. Perrozzi to construct a pitched roof on his house with a 4:12 pitch ratio. Mr. Perrozzi then filed a timely appeal to the City of Kodiak Board of Adjustment. CONCLUSIONS OF LAW 1. The Borough Plaiuting and Zoning Commission erred in upholding the adminis- trative decision voiding Mr. Perrozzi's building permit. The addition of Ms. Linda Freed November 27, 1984 Page 3 another story to Mr. Perrozzi's house would not violate KIBC 17.36.070C because that code provision governs only repairs and maintenance to non- conforming structures and Mr. Perrozzi's planned addition did not consti- tute repairs and maintenance. 2. The result of this appeal is controlled by KIBC 17.36.040A, which permits the continuation of non -conforming structures but provides that "no such structure may be enlarged or altered in a way which increases its non-confoiuuty." While Mr. Perrozzi proposes to enlarge and alter his house, he does not propose to do so in a way which will increase its non- conformity, as his house is non -conforming only as to yard setbacks and those setbacks will not be changed in any way by the addition of another story to the house 3. To the extent that KIBC 17.36.070C is inconsistent with KIBC 17.36.040A, the latter should control as there is no rational basis for prohibiting a person from increasing the cubical content of a non -conforming structure, when at the sane tiWIP, the non -conformity of that structure is not being enlarged or increased. These two code provisions are not necessarily con- flicting, however. Section 17.36.070C can be read as no more than an admo- nition that one may not include within the definition of otherwise allowable repairs and maintenance, work which increased the cubical volume of a non- conforming structure. If an increase in cubical volume is involved, then the work should be considered an enlargement or alteration and its lawful- ness is to be judged solely under KIBC 17.36.040. 4. Because the administrative decision voiding Mr. Perrozzi's building permit was based upon an erroneous reading of the law, it moist be reversed. Mr. Perrozzi may continue with the work authorized by that permit without obtaining a variance from KIBC 17.36.070C. It is therefore unnecessary to review the Planning and Zoning Commission's decision denying the variance which Mr. Perrozzi requested. In conjunction with the above Board of Adjustment decision, the City Council requests that the Borough staff be more diligent when reviewing and signing off the zoning section of building permits. Sincerely, CITY OF KODIAK MARCQ LA DALKE, CMC City Clerk MRDhahs CITY OF KODIAK AGENDA FOR THE SPECIAL COUNCIL MF's'ING OF :NOVEMBER-26;=-19847;,- MEETING NOVEMBER-26;=1984 MEETING CALLED TO ORDER Roll Call PURPOSE OF MEETING This special meeting was scheduled by the City Council at the regular meeting held November 20, for consideration of, and possible action on, the purchase of the existing fish waste reduction plant (Bio-Dry)•and,.sitting=as=the=Board_of:Adjustment;-hearing--and-possibly.making-a-decision_on Joe_-, Perrozzi'-s.appeal_from_a-decision-of=.the=Kodiak Island_-Borough-Planning_-and-Zoning_Comnission.. - III. OLD BUSINESS (Blue) Purchase of Property RE: Bio -Dry, Inc. IV. BOARD OF ADJUSTMENT (White) Hearing RE: Perrozzi Appeal V. V 11. CITY MANAGER'S REPORT MAYOR'S CONIIENTS COUNCIL COMMENTS VIII. AUDIENCE COMMENTS IX. ADJOURNMENT AGENDA SUMMARY REPORT COUNCIL MEETING DATE' November 26, 1984 SUBJECTPurchase of Property RE: Lilo -Dry, Inc. SUMMARY' On June 27, 1984, the City entered into an agreement to purchase the remaining leasehold interest, together with the leasehold improvements and personal property, wowed by Bio -Dry, Inc. at Gibson Cove. Tha total purchase price was to be the lesser of $178,709.68 or the total remaining obligation of Bio -Dry, Inc. under its SBA -guaranteed loan from the National Bank of Alaska. While all documnts needed to close this purchase have been received, the City has not proceeded because Bio -Dry has not cleared governmental liens totaling approximately $16,700, comprising claims by the IRS, Alaska State, and Kodiak Island Borough. A November 15 1 tter from City Attorney Nal Stephens co Stanley Welsh, attorney for Bio -Dry owner Barry Lenton, requested clearance of the tax liens by depositing $17,500 with an escrow agent. Mr. Welsh responded with a counter offer of ,$10,000. At this point the staff is requesting Council direction as to what course of action should be followed. CITY MANAGER'S RECOMMENDATION' APPROPRIATE COUNCIL MOTION PURSUANT TO RECOMMENDATION: love to authorize the City staff to proceed with the purchase of the remaining leasehold interest, together with the leasehold improvement and personal property, owned by Bio -Dry, Inc. at Gibson Cove for the purchase• price, not to exceed, $ ; said purchase price to be paid directly to the National Bank of Alaska to satisfy the outstanding SBA -guar- anteed loan; said purchase price to include (or not include) a sun to clear governmental claims by the IRS, Alaska State, and Kodiak Island Borough. NEXT AGENDA ITEM PAGE NO. MELVIN M. STEPHENS, 11 "RQ"..,IOX ATTORNEY AT LAW 326 CENTER AVEN V C, SUITE 203 Po. sox u;0 KOOIAK. ALASKA 00015 TELEPHONE: coon 400-0+a3 MEMORANDUM TO: Kodiak City Counsel DATE: November 20, 1984 FROM: Melvin M. Stephens, II - hOr'S RE: Bio-bry, Incorporated Our File No. 844-137 • As you know, an June 27 of this year, the City entered into an agreement to purchase the remaining leasehold interest of Bio -Dry, Incorporated and the leasehold improvements and personal property owned by that corporation and located at Gibson Cove. The total purchase price was to be the lesser of $178,309.68 or the total remaining obligation of , Bio -Dry, Inc. under its SBA -guaranteed loan from the National Bank of Alaska, which loan NBA has secured with a Deed of Trust against Bio-Dry's leasehold interest and improvements and a security interest in Bio-Dry's personal property at Gibson Cove. While we are in possession of all documents needed to close this transaction, it has not closed to date because Bio -Dry, Inc. has failed to clear certain governmental liens which have been asserted against the leasehold interest and improvements, clear title to which Bio -Dry is supposed to convey to the City. As outlined in the attached letter of November 15 to Stanley W. Welsh, Bio-Dry's attorney in Boise, Idaho, it is my best estimate that those liens presently total approximately $16,700.00. An IRS tax lien accounts for approximately $10,500.00 of this total; an Alaska State tax lien comes to approximately $2,900.00, and the remaining $3,300.00 is associated witht1984 real and personal property taxes claimed by Kodiak Island Borough. While the existence and amount of the tax liens claimed by Kodiak Island Borough came to light only recently, the IRS and State tax liens have been known to both the City and Bio -Dry for some time. I am aware of no meaningful efforts made by Bio -Dry, Inc. to either pay or clear any of these tax liens. In my letter of November 15 to Stanley Welsh, I suggested that this transaction be closed forthwith and that, at the time of closing, Bio -Dry deposit with an escrow agent the sum of $17,500.00, which would become available to the City to pay off these tax liens to the extent that Bio -Dry did not pay them or otherwise arrange to have them released within sixty days after closing. Mr. Welsh has now contacted us with a counter-offer on the part of Bio -Dry, Inc. That corporation proposes to pay to the City $10,000.00 cash at the time of closing, in return for which it would expect the City to assume responsibility for either clearing or paying the tax liens. Guidance from the City Council is needed with respect to whether or not this is an acceptable offer. All of these tax liens will follow Bio-Dry's title when. that title is conveyed to the City. There is a possibility, however, that the taxing authoritiesmight be willing to release those liens for less than full payment, especially after title is conveyed to the City. It is also possible, of course, that one or more of the three taxing authorities would insist upon full payment and would threaten to sell the property in question (i.e., the leasehold interest and improvements conveyed to the City by Bio -Dry) through a tax foreclosure sale if full payment were not forthcoming. Since Bio -Dry warranted clear title in the June 27, 1984 agreement pursuant to which it agreed to sell these assets to the City, the City has a theoretical cause of action for damages in the amount of these tax liens if Bio -Dry fails or refuses to clear them. The City cannot "withhold" part of the purchase price, however, because the entire purchase price will go to NBA and NBA would probably refuse to release its Deed of Trust against the property unless the full purchase price were paid. As a purely theoretical matter, the City could go ahead and close the transaction and then sue Bio -Dry, Inc. for the deficiency represented by these tax liens. Such a course of action would be unlikely to result in payment, however, because Bio -Dry, Inc. purports to have no assets of any value. A directive from you is needed as to what course of action should be followed. MELVIN M. STEPHENS. �I • Poo/ 115SiONAt ATTODNE V Al LAW 100 Cl N, VI AV,N111. Y„i„ /n, PO 110‘ 11,11 KODIAK. ALASKA DOG IS TELCO,IUNE 1»0/1.64:1,13 November 15, 1984 Stanley W. Welsh Clemons, Cosho 6 Humphrey, P.A. Eleventh Floor, First Interstate Bldg. 700 West Idaho Boise, Idaho 83702 RE: Bio -Dry, Incorporated Our File No. 844-137 1,47 w [7 4 >y i /947 Dear Mr. Welsh: As I indicated to you last week, the City of Kodiak feels that it is no longer appropriate to delay closing the Agreement to Purchase which Harry Lenton- signed on behalf of Bio -Dry, incorporated this past June 27. We would like to close the transaction herr in Kodiak by November 20. Since Rio -Dry has already executed a Bill of Sale and an Assignment of its leasehold interest, which documents the City has been holding in its file, the only thing delaying closing would appear to bethe liens and encumbrances which Rio -Dry has failed to clear. Aside from the old judgment lien in favor of Aleutian Electric which may now have expired with the passage of time, it is my understanding that the tax liens filed by the Internal Revenue Service and the State of Alaska have still not been cleared from the property. I also understand from speaking with the finance department of the Kodiak Island Borough that the 1984 real and personal property taxes have not been paid. When penalties and interest are taken into account, it appears that the obligation to the IRS comes to a little less than $10,500.00, the State tax lien comes to almost $2,900.00 and the obligations owed to the Borough total approximately $3,300.00. Daily interest continues to accrue on these obligations, of course. As a solution to the problem which arises because of these liens, the City would again suggest that closing be effected forthwith but that, at the time of closing, Bio -Dry deposit with an escrow agent the sum of $17,500.00. Bio -Dry would then have fin days within which to make whatever further efforts it feels appropriate to clear or compromise these liens. After that Stanley W. Welsh November 15, 1984 period of time, the escrowed funds would be made available to the City, which would use .them to clear any liens or encumbrances then still outstanding. Enclosed is a proposed Closing Agreement which would effect this type of arrangement. If it is acceptable to Rio -Dry, would you please see that it is executed and returned to us by express mail or courier service along with the funds to be deposited into esr..row. If it is not acceptable or if you have any questions, please give me a call. MMS: jve JVE6:.220 enclosures cc.: S.C. Gesko, Jr. Sincerely, Melvin M. Stephens, II AGENDA SUMMARY REPORT COUNCIL MEETING DATE' W`mdmer 26, 1984 SUBJECT= Hearing RE: Perrozzi Appeal .JUMMARY' This appeal hearing was originally scheduled for November 8, but was post- poned to the meeting of November 20 to allow the entire Council to be pres- ent. At the November 20 meeting it was again postposed to this special meeting as Councilmter Cratty was absent, The Council is sitting as the Board of AdjusWrut to hear an appeal filed by Joe Perrozzi. Mr, Perrozzi is appealing the Planning & Zoning Cannfssion decision of August 6, 1984, denying a request for a variance and upholding the July 26, 1984, adninis- trative decision on lots 30 and 32, Block 19, Kodiak Townsite Alaska Sub- division. The hearing will begin with a presentation by Camrnity LLevelopnent Director Linda Freed of the Borough Planning Department. Next, Mr. Perrozzi will present his argumnt. Only the information available to the Planning & Zoning Carnissian at the tine of its decision nay be considered by the Board of Adjustment. ACrer hearing both parties, the Board of Adjustment nay affirm or reverse the decision of the Planning and Zoning Commission, in whole or in part, and oust give the reasons for its decision. (Kodiak Island Borough Code 17.66.050 is included in the packet for the Board's convenience.) CITY MANAGER'S RECOMMENDATION: APPROPRIATE COUNCIL MOTION PURSUANT TO RECOMMENDATION' Howe to (affirm or reverse) the August 6, 1984, Planning and Zoning Crnmission decision denying a variance and upholding the July 26, 1984, administrative decision on Lots 30 and 32, Block 19, Kodiak Townsite Alaska Subdivision, based on the following findings NEXT AGENDA ITEM PAGE NO. FERBOIZI APPEAL OF KODWC ISLAND BOROUGH PLANNING & ZONING CallISSSION'S ALGUST 6, 1984, DECISION DENYING REQUEST FDR VARIANCE AND UPHOLDING JULY 26, 1984 AUIINISTRATIVE DECISIONS ON II715 30 & 32, BIDCK 19 KODIAK TOWNSIIE ALASKA SUBDIVISION TABLE OF 00.NTFNltS Borough Code Variance Requirements Board of Adjustment Procedures Planning & Zoning Decision Notice of Appeal 17.10.020(a) Record on Appeal 17.10.030 (recision of 08-06-84) Record on Appeal 17.10.030 (Findings of Fact - 08-15-84) Record on Appeal (General) Written Statement (Appellant) 17.10.040 Written Statement (Borough) 17.10.040 Notice of Hearing 17.10.050 1 2 7 8 9 35 43 65 66 67 BOROUGH CODE VARIANCE REQUIREMENT'S 17.66.050--17.66.060. owner shown on the latest tax assessment -roll. Notice shall also be provided in accordance with state law by legal publi- cation in local newspapers. (Ord. 83-40-0 53(part), 1983). 17.66.050 Approval or denial. Within forty days after the filing of an application, the planning commission shall render its decision, unless such time limit has been extended by common consent and agreement of the applicant and the commission. A. Approval. If it is the finding of the commission, after consideration of the investigator's report and receipt of testimony at the public hearing, that the use proposed in the application, or under appropriate conditions or restrictions, meets all of the following, the variance shall 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 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 hardship; 3. That the granting of the variance will not result in material damage or prejudice to ether properties in the vicinity nor be detrimental to the public's health, safety or general welfare; 4. That the granting of the variance will not be contrary to the objectives of the comprehensive plan; 5. That actions of the applicant did not cause special conditions or financial hardship or inconvenience from which relief is being sought by a variance; and 6. That granting the variance will not permit a prohibited land use in the district involved. B. Denial. If the commission finds, after consideration of the investigator's report and receipt of testimony at the public hearing, that it cannot make all of the required findings in Section 17.66.050(A) it shall deny the variance. (Ord. 83-40-0 43(part), 1983). 17.66.060 Conditions. The commission in granting the variance, may establish conditions under which a Int nr nwrrei of land may be used or a building constructed nr altered• make requirements as to architecture height of building nr structure, open spaces or parking areas; require conditions, or operation or an enterprise; or make any other conditions, requirements or safeguards that it may consider necessary to prevent damage or prejudice to adjacent properties or , detrimental to the borough. When necessary, the commission may require guarantees in such form as deemed proper under the circumstances to insure that the conditions, designated will be complied with. (Ord. 83-40-0 43(part), 1983). 130 (Kodiak Island Borough 9/83) TITLE 17 ZONING Chapter 17.10 Board of adjustment procedures Section 17.10.010 17.10.020 17.10.030 17.10.040 17.10.050 17.10.060 17.10.070 17.10.080 17.10.090 17.10.100 17.10.110 CHARTER 17.10 Appeals to the board of adjustment Notice of appeal Record on appeal Written statements Notice of hearing Nearing New evidence or changed circumstances Scope of review Decision Judicial review Definitions BOARD OF ADJUSTMENT PROCEDURES 17.10.010--17.10.020 17.10.010 Ap•eals to the board of adjustment. The city council, sitting as a board of adjustment, shall hear and decide the following smatters arising within the city: (a) Appeals regarding alleged errors in enforcement of zoning ordinances and building codes; (b) Appeals from decisions of the planning commission regarding concept or final approval of requests for special exceptions or conditional uses; or (c) Appeals frau the decisions of the planning commissions on requests for variances from the terms of the zoning ordinance which are not contrary to the public interest, when a literal enforcement would deprive a property owner of rights commonly enjoyed by owners of other properties in'the"same district. (Ord. 528 51 (part), 1978) 17.10.020 Notice of appeal. (a) An interested person may initiate -an appeal to the boarJi adJustment by filing a notice of appeal with the city clerk within ten days after the action or decision appealed from and paying a filing fee of $50.00. (b) The city clerk shall transmit a copy of each notice of appeal re- ceived to the borough clerk and the planning department or other administra- tive officer of the borough involved in the action appealed within five work- ing days of the receipt of the appeal. At the time of transmitting such notice, the city clerk shall request the borough to prepare the record an appeal which shall be,prepared within forty-five days of the date of the notice. 17-01 (Kodiak 07/84) 2 17.10.030--17.10.050 (c) The notice of appeal shall identify the action appealed, shall con- tain a clear and concise statement of the grounds alleged for the appeal, and shall state appellant's name and address. (d) If a charge or bond is required by the borough of Kodiak Island for the preparation of the record, appellant shall be notified of that charge. fee, or bond, and appellant shall be responsible for satisfying any such borough requirements. (Ord. 720 51, 1984: Ord. 528 51 (part), 1978) 17.10.030 Record on appeal. (a) The record on appeal shall consist of the following: (1) A verbatim transcript of the proceedings before the administrative body from which an appeal has been taken, if those proceedings were taped or otherwise recorded in their entirety. If the proceedings were not re- corded, copies of any approved minutes, summaries or other records of the proceedings; (2) Copies of all memoranda, exhibits, correspondence, recommendation, analyses, naps, drawings, and other documents submitted to the administra- tive body prior to the decision frau which the appeal is taken; (3) A copy of the written decision of the administrative body, includ- ing its findings and conclusions; and (4) A list of the names and addresses of all persons appearing as wit- nesses at the hearing. (b)'When the record has been completed, it shall be transmitted from the borough to the city clerk. Upon receipt of the record, the city clerk shall, within five working days, send a copy of the notice of appeal, by regular mail, to all persons appearing as witnesses in the hearing of the administrative action being appealed, and advise them that the record has been prepared. The city clerk shall, within five working days, also notify appellant of receipt of the record and make the record available to the appellant and any other interested persons for review. A copy of the rec- ord shall be provided to any person on request upon payment of reproduction costs. (Ord. 720 52 6, 53, 1984: Ord. 528 51 (part), 1978) 17.10.040 Written statement. The appellant may file a written statement summarizing the facts and setting forth pertinent points and authorities in support of the allegations contained in the notice of appeal not more than fifteen days after the clerk has given notice of completion of the record. The borough staff and any interested party wishing to file a writ- ten statement in opposition to the appeal nuy do so within fifteen days after expiration of the time for the filing of appellant's statement. Statements filed by any person shall be available for inspection in the city clerk's office. (Ord. 720 54, 1984: Ord. 528 51 (part), 1978) 17.10.050 Notice of hearing. The clerk shall set a date for the hearing of the appeal at a regular or special meeting of the council, or at a meeting of the council sitting as a board of adjustment, to be held not less than ten nor more than twenty-one days after expiration of the time for filing 17-02 (Kodiak 07/84) 17.10.060--17.10.080 of briefs. Notice of the hearing shall be published in a newspaper of general circulation, and shall be mailed by regular mail to the appellant and all other persons filing statements or appearing at the hearing of the administrative action being appealed, not less than five days before the hearing date. (Ord. 720 §5, 1984: Ord. 528 §1 (part); 1978) 17.10.060 Hearing. (a) The board of adjustment hearing may be conducted at any regular or special meeting of the council, by meeting as a board of adjusrrent or by recessing the council meeting and convening the council as a board of adjustment to hear the appeal. The noting of the board of ad- justment, including any deliberations, shall be open to the public and a ' record shall be made of the meeting. (b) The hearing shall be commenced with a presentation by the staff of the borough planning department summarizing the nature of the decision being appealed to the board of adjustment, the pertinent facts produced at the hearing from which the appeal is taken, and applicable legal principles. Arguments shall then be presented by the appellant, if the appellant is a party other than the borough, and any other person submitting a brief within the time limits prescribed by section 17.10.040 of this chapter. The argu- ments shall discuss the facts in the record and the application of those facts to applicable provisions of law, but shall not be in the form of testi- mony, and persons, making such presentations shall not be under oath. (c) Only one argument shall be presented by or on behalf of each party or interested person, and the council nay establish a time limit for each argument to be presented. (d) If a transcript of all substantial portions of the record is not available and the council determines that the available summary of that tes- timony is not adequate, the council nay elect to receive testimony relating to any issue specified on the appeal for Which the record is deficient. Such testimony shall be received only from persons who presented similar testimony at the hearing from which the decision is being appealed. The testimony shall be limited to matters discussed at the previous bearing, and no new evidence will be received.. (e) The hearing of the board of adjustment nay be recessed and recon- vened from tine to time as determined to be necessary by the board. (Ord. 528 §1 (part), 1978) 17.10.070 New evidence or changed circumstances. Appeals alleging new . evidence or changed circumstances shall not be heard by the board of adjust- ment. A notice of appeal based upon new evidence or changed circumstances shall be transmitted by the clerk to the borough planning staff for possible rehearing. (Ord. 528 §1 (part), 1978) 17.10.080 Scope of review. (a) The board of adjustment shall hear appeals solely on the basis of the record established before the lower administrative body, the notice of appeal, briefs submitted prior to the hearing, and argu- ments at the hearing. 17-03 (Kodiak 07/84) 17.10.090--17.10.110 (b) The board of adjustment may exercise its independent judgement on legal issues raised by the appeal. Legal issues are those nutters that re- late to the interpretation or construction of ordinances or other provisions of the law, or the application of case law to the facts as presented. (c) Action of the board of adjustment on the appeal shall be based upon facts which are supported in the record by substantial evidence. "Substan- tial evidence" means the record provides a substantial basis from which the face in issue might be reasonably inferred. (Ord. 528 §1 (part), 1978) 17.10.090 Decision. (a) The board of adjustment may affirm or reverse the decision of the lower administrative body in whole or in part. (b) Any variance granted by the board of adiustment shall be the mdni- mun variance that will make possible the reasonable use of the land bmild- ing4 or structure which is equivalent to. but not exceeding. the use of similar lands, buildings or structures permitted generally in the sane use ra distct. The board of adjustment may reduce the extent of a variance re- quested or previousiy granted. (c) The board of adjustment nay not grant a variance because of special conditions caused by actions of the person seeking relief or for reasons of pecuniary hardship or inconvenience, nor may the board grant a variance which would permit a land use in a district in which that use is prohibited. (d) A decision of the board of adjustment to affirm or reverse action of a lower administrative body shall be based upon findings and conclusions adopted by the board. Such findings shall be reasonably specific so as to provide the community, and, where appropriate, reviewing authorities, a clear and precise understanding of the reasons for the board's decision. The findings, conclusions, and decision shall be reduced to writing either during or subsequent to the hearing, signed by the payor, and filed with the city clerk. (e) A decision shall be based on a notion to ant the relief rmtwsted by the appealing party, and the concurring vote of four members of the board sttali be necessary to reverse any order, requirements, decision. or deter- mination of the planning commission. (Ord. 528 §1 (part), 1978) 17.10.100 Judicial review. A decision or order of the board of adjustment may be appealed to the superior court by a municipal officer, a taxpayer, or a person jointly or severally aggrieved, pursuant to the provisions of rule 45 of the Rules of Appellate Procedure of the state of Alaska. Notice of appeal'shall be filed in the superior cast within thirty days from the date that the order or decision appealed from is nailed or delivered to the appealing party. The order or decision of the board of adjustment shall not be reversed if the findings upon which that order or decision is rade are supported by substantial evidence in the record. (Ord. 528 §1 (part), 1978) 17.10.110 Definitions. As used in this chapter: (a) "Interested person" means a municipal officer or other person di- rectly or indirectly affected by the decision being appealed. 17-04 (Kodiak 07/84) 3 (b) "Party" means a person uho has filed notice of appeal or a brief in the appeal under consideration by the board of adjustment. (Ord. 528 51 (part), 1978) 17-05 (Kodiak 07/84) HARTIG, RHODES, NORMAN, MAHONEY 4 EDWARDS 001.010•001.1 At ATTORNEYS AT LAW 717 RST RCCT ANCHORAGE, ALASKA 00901 TELEPHONE:0,07J 274.3576 7ELECOFIEA:(907)2an4352 E840E10) 36.404 CA9LE:'NORWe ROD Rn0(1020-,900) J AHrs 00c5 ▪ N• rJ. IIONC' DERNARO 4. oo .wNERTT 0G �.CCATY W eLCAC PALL ECO. sNEtO n. ORIR NN [N 411 N W ORI Dx RAT O awnSP WEV W. u • 0041180 MWRENCit 1 x. q [ltl OF MANNA 12 6ENT"T City of Kodiak P.O. Box 1397 Kodiak, Alaska 99615 Attn: Marcella Dalke September 12, 1984 RE: Board of Adjustment Procedures Our File No. 84-147/148 Dear Marcella: ,001.[ OFFICE '26 CENTER .vCNu[ NODUR.ALASRA 99015 2907)408-3143 • C.WALTER Each INcwIN N.STCPNEN5.11 PAWNER Omcc 11691.NTCRSTATE O•NR sol30lN0 PALMER.ALA9"A 091345 (007)745-0031 LANDPEW ROOINSON RCPLY TO; Kodiak boo b� i1' str6t;841 Since the City Council will be sitting as a Board of Adjustment on at least three appeals from Planning and Zoning Commission decisions in the near future, I thought it would be appropriate'to add a few written comments to our telephone conversation of yesterday wherein I indicated that in my opinion argument should be heard at Board of Adjustment hearings only from persons who have submitted mitten briefs in accordance with KCC 17.10.040. 1 The pertinent language is found in subsection (b1 of KCC 17.10.060 which states, in relevant part: The hearing shall be commenced with a pre- sentation by the staff of the borough plan- ning department summarizing the nature of the decision being appealed to the board of - adjustment, the pertinent facts produced at the hearing from which the appeal is taken, and applicable legal principals. Argument shall then be presented by the appellant and any other person submitting a brief within the time limits prescribed by Sect on 17.10.040 of this chapter. The ar- guments shall discuss the facts and the re- cord and the application of those facts to applicable provisions of law, but shall not Marcella Dalke September 12, 1984 be in the form of testimony and persons making such presentation shall not be un- der oath. The foregoing language makes it reasonably clear that any person other than the appellant or a representative of the borough planning department must have submitted a "brief" in accordance with KCC 17.10.040 in order to be entitled to oral argument before the Board of Adjustment. In this context, a brief is simply a written statement as described in HCC 17.10.040. There is no requirement that it reflect any particular format or contain citations to particular laws or legal decisions. While I appreciate the very real problems which may be associated with politely informing an individual who has not presented a written statement pursuant to KCC 17.10.040 that he or she is not entitled to oral argument before the Board of Adjustment, please recognize that any deviation from the procedures set forth in KCC 17.10,060 are likely to provide grounds for appealing the Board's decision to the Superior Court. If, for instance, a party opposing the appeal is permitted oral argument before the Board of Adjustment even though he or she filed no written statement within the applicable time limits, the appellant may well argue on appeal that he was unable to effectively refute the opposing argument because he was unprepared for it. I do not suggest that such a position would always find favor with a reviewing court and result in reversal of the Board of Adjustment's decision. It is, however, the type of argument which may lead a disappointed party to seek judicial review rather than simply letting the matter drop. There is one situation which individuals who have not filed briefs will be heard before the Board of Adjustment. That situation arises, however, only "(ijf a transcript of all substantial portions of the record is not available and the council determines that the available summary of that testimony is not adequate . . In such a situation - the council may elect to receive testimony re- lating to any issues specified on the appeal for which the record is deficient. Such testi- mony shall be received only from persons who presented similar testimony at the hearing from which the decision is being appealed. The test- imony shall be limited to matters discussed at the previous hearing, and no new evidence will be received. KCC 17.10.060(d). Since a verbatim transcript of all proceedings before the Planning and Zoning Commission is usually available and made part of the record, Marcella Dalke September 12, 1984 the foregoing exception will not often have to be invoked. When the situation does arise, it should be made clear on the record that the Council has actually concluded that the record - e.g., the minutes of a Planning and Zoning Commission meeting, as opposed to a verbatim transcript of it - is deficient with regard to certain specified matters and that it has elected to receive testimony to try to reconstruct what happened before the Commission. As a practical matter, KCC 17.10.060(d) would appear to contemplate little more than the Council's asking an individual who appeared before the Planning and Zoning Commission to please step forward and summarize to the best of his ability the previous testimony presented. Anything more risks violation of the admonition that "no new evidence will be received." As you may have noticed, one problem -with the foregoing analysis is that, on its face, KCC 17.10.040 does not specifically allow a person supporting the appeal (other than the appellant) to file a brief. It doesn't prohibit such brief; it merely says nothing about it. Therefore it is possible thata person wishing to be heard in support of the appeal will argue that our procedures are defective because of this ambiguity. 1 find this argument troublesome and therefore would urge that KCC 17.10.040 be amended by adding the words "or any other interested person supporting the appeal" immediately after "the appellant' in the first sentence of that provision. Furthermore, until such an amendment is enacted, I would recommend that, in complying with KCC 17.10.030(b), which requires you to notify the appellant and all witnesses appearing before the Planning and Zoning Commission of completion of the record on appeal, you include an explicit representation to the effect that written statements in favor of the appeal will be accepted within the same time limitations as apply to the appellant's brief - i.e., within not more than 15 days after your notice of completion of the record. Finally, if a situation presents itself in which the Council feels it appropriate to deviate from the procedure set forth in KCC 17.10.060(b) and hear argument from someone who has not filed a written brief for or against the appeal, it may be best to inquire on the record whether anyone on the opposing side has any objection to hearing the argument. If no objections are expressed, the grounds for appeal will be weakened somewhat. If objections are expressed, then at least the Council is clearly forewarned that an appeal may be likely. Let me close by again emphasizing the importance of KCC 17.10.090(d), which reads: A decision of the board of adjustment to af- Marcella Dalke September 12, 1984 firm or reverse action of a lower administra- tive body shall be based upon findings and conclusions adopted by the board. Such find- ings shall be reasonably specific so as to provide the community, and, where appropriate, reviewing authorities, a clear and precise un- derstanding of the reasons for the board's de- cision. The findings, conclusions, and decision shall be reduced to writing, either during or subsequent to the hearing, signed by the mayor, and filed with the city clerk. Failure to comply with the foregoing provision, either because findings and conclusions are not specifically adopted or because such findings and conclusions which are adopted are inadequate, will result in a very high likelihood of reversal if a Board of Adjustment decision is appealed to the Superior Court. MMSII: jve JVE2:030 Sincerely, HARTIG, RHODES, NORMAN, MAHONEY 6 ELLDWARDS By: /1.7241-.. Melvin M. Stephens, II KODIAK ISLAND BOROUGH Telephones 486-5736 - 486-5737 — Box 1246 KODIAK, ALASKA 99615 August 7, 1984 Mr. Joe Perrozzi P.O. Box 3696 Kodiak, Alaska 99615 Dear Mr. Perrozzi; RE: CASE 84-098. An appeal from an administrative decision in accordance with with Section 17.68.020 of the Borough Code ordering the discontinuation of construction or other preparatory activity leading to an unlawful use of land or structure (17.75.010 A.3.); and A request for a variance from Section 17.36.070(C) of the Borough Code (Repairs and Maintenance) in order to provide relief from the administra- tive decision to permit the construction of a third -story addition that would increase the cubical content of a nonconforming structure. Lotq 30 and 32, Block 19, Kodiak Townsite Alaska Subdivision (Joe Perrozzi) The Planning and Zoning Commission, at their August 6, 1984 special meeting, took the following action on the above -referenced case. The Commission: A) Affirmed the zoning officer's administrative decision ordering the dis- continuation of construction or other preparatory activity leading to an unlawful structure since building permit 15131 is null and void, per Section 17.03.060 or the Borough Code. Findings of Fact made by the Commission for this decision include: 1) Whereas Section 17.36.070(C) states..."Repairs and Maintenance. On any nonconforming structure or on any building devoted in whole or in part to any nonconforming use, work may be done in any period Of twelve consecutive months on ordinary repairs, or on replacement of nonbearing walls, fixtures, wiring, or plumbing, provided that the cubical content of the building as it existed at the time of passage or admendnent of the ordinance codified herein shall not be increased;" and 2) Section 17.03.060(C) states "Building Permints. Any building per- mit issued in conflict with this title is null and void." 3) Therefore, building permit 05131 is null and void, since it conflicts with Section 17.36.070(C) of the Borough Code. B) The Commission denied a request for a variance from Section 17.36.070(0) of the Borough Code (Repairs and Maintenance) in order to provide relief from the administrative decision to permit construction of a third story addition that would increase the cubical content of a noncon- forming structure. Finding of Facts for this decision include: 1) No exceptional physical circumstances or conditions applicable to to the property or to its intended use or development exist: end 2) The granting of the variance would prejudice other properties In the vicinity by impairing the view of adjacent homeowners. The criteria of Chapter 17.66 of the Borough Code (Variances) must be met in order for the Commission to approve a variance request. 0) The Commission approved a variance from Section 17.36.070 (Repairs and Maintenance) to permit the construction of a pitched roof to be added to the roof line of the existing structure with a 4 to 12 pitch ratio. Findings of Fact for this decision will be formalized at the August 15, 19f regular meeting of the Planning and Zoning Commission. The Planning and Zoning Commission's decision becomes final unless an appeal is made within ten (10) days of the date of the action by filing, with the City Clerk, a written notice of appeal specifying the grounds thereof, (Borough Code, Section I7.68.010(A). Section 17.68.010(C) states; "An appeal from any action or decision of the Commission stays the decision appealed from until there is a final decision on the appeal." Therefore, until a formal appeal is filed with the City Clerk, the decision of the Planning and Zoning Commission to affirm the administrative ordei to dis- continue the construction or other preparatory activity leading to an unlawful structure is final, and all work must cease. Should you have any questions, please call. Sincerely, COMMUNITY DEVELOPMENT DEPARTMENT Bud Cassidy ✓ Assistant Planner/Zoning Officer cc: ..@Lty of Kodiak Tim Rill CASE 84-098 31310 7; afia decis,-;,„ 73{e p.Liott:7 1 37 onn,,,,:ku,;, cifrAi.41, Ind) diPt'"' (S (83 on1/4,1 .AuaL 74; c&s, 4ti 06e;sie,) ezze.4,4- -1-&catzt. igozo. 40-4L are. 6(c ;fr- te•vn cee,a1;14.- datjvi,--te) ve-e2,> Aie&e"Ni /7 . 3 , 0 0 (C) 7 )17 -14 ewydi zri.o:P 74, 14"14* giad--111 ette, 44,66-vize,*) oncoe 0,g 2_ tQL fa. a at pdanwece .•104- alitt. teLL (Az> ana A At' 7a.61 -L3 aZ:a' Art-a-(1- e-thc./ /4,744_ liez 1;44,4, ClorSi eiii-v—ptgat) fifrtl-1 4zLthie*Ka- 6'd-e,(2, tfttl p _CP kr PLANNING AND ZONING COMMISSION PUBLIC HEARING ON AN APPEAL FROM AN ADMINISTRATIVE DECISION AND A REQUESI FOR A VARIANCE LOTS 30 AND 32, BLOCK 19, KODIAK TOWNSITE ALASKA SUBDIVISION JOE PERROZZI The above-cited special hearing was held on August 6, 1984 in the Kodiak Island Borough Assembly Chambers, 710 Mill Bay % Road, Kodiak, Alaska. The special hearing was conducted by the Kodiak Island Borough Planning and Zoning Commission, Mr. Ken Gregg, Chairman. CERTIFICATE THIS IS TO CERTIFY: That che Public Hearing in the matter of: AN APPEAL FROM AN ADMINISTRATIVE DECISION AND A REQUEST FOR A VARIANCE LOTS 30 AND 32, BLOCK 19, KODIAK TOWNSITE ALASKA SUBDIVISION Page 2 JOE PERROZZI was held as herein appears and this is the original verbatim transcript thereof. KODIAK ISLAND BOROUGH Cathy Kester, Secretary Case 84-098 Verbatim 9 10 PLANNING AND ZONING COMMISSION MEMBERS AND KODIAK ISLAND BOROUGH STAFF Commission: KEN GREGG, CHAIRMAN STEVE RENNELL VIRGINIA CROWE DAN JAMES TIM HILL MARLIN KNIGHT Staff: LINDA FREED, Director, Community Development Department BUD CASSIDY, Assistant Planner/Zoning Officer Community Development Department, CATHY KESTER, Acting Secretary, Community Development Department Page 3 Case 84-098 Verbatim PROCEED I N G S ' CHAIRMAN GREGG: At this time we will convene the Special Meeting of the Planning and Zoning Commission August 6, 1984. Can we have a roll call please. MS. KESTER: Mr. Rennell. COMMISSIONER RENNELL: Here. MS. KESTER: Mr. Knight. COMMISSIONER KNIGHT: Here. MS. KESTER: Mrs. Crowe. COMMISSIONER CROWE: Here. MS. KESTER: Mr. Gregg. COMMISSIONER GREGG: Here. MS. KESTER: Mr. Hill. COMMISSIONER: Here. MS. KESTER: Mr. James. CO1INISSIONER JAMES: Here. M5. KESTER: Mr. Patterson. Quorum is established. CHAIRMAN GREGG: The first and only item on our agenda is Case 84-098; An appeal from an administrative decision in accordance with Section 17.68.020 of the Borough Code ordering the discontinuation of construction or other preparatory activity leading to an unlawful use of land or structure; and a request for a variance from Section 17.36.070(C) of the borough Code (Repairs and Maintenance) in order to provide relief from the administrative decision to permit the construction of a third - story addition that would increase the cubical content of a nonconforming structure on Lots 30 and 32, Block 19, Kodiak Townsite Alaska Subdivision. Page 4 Case 84-098 Verbatim CONHISSIONER HILL: Mr. Chairman. CHAIRMAN GREGG: Mr. Hill. COPD(ISSIONER HILL: I have a conflict of interest. request to be excused to step down. CHAIRMAN GREGG: You are excused. Is there anything addi- tional from staff, other than what we have in our packet? MS. FREED: No, we have no additional information for you. MS. KESTER: Any public hearing notices returned? CHAIRMAN GREGG: Did you receive any public hearing notices I back? MS. FREED: No we did not. CHAIRMAN GREGG: When were the public hearing notices mailed? MS. KESTER: July 91st. MS. FREED: July 31st, which would have been Tuesday, I believe. CHAIRMAN GREGG: At this time we will recess the regular meeting; open the public hearing. Anyone wishing to speak for the request? Mr. Perrozzi. MR. PERROZZI: (not discernible) since uh basically (not discernible) my wife, the Hills here, and the other gentlemen behind us. Uh.. CHAIRMAN GREGG: Could you move the microphone over there a little. MR. PERROZZI: Okay. Basically what I would like to do is just base a chronological sequence of events as the way we see them. As according, you know, to what the uh staff has drawn up here. On September 15th of 1982, my..I looked at the uh duplex that's in question. And uh was shown that house by Mr. Tim Hill. Page 5 , Case 84-098 Verbatim After looking at the house, I went up to Planning and Zoning to inquire as to what would be the necessary steps to put on u third -story addition. At that time, I was informed that if I met these height requirements and kept it under 35 feet that no other variance was required. Twenty-second of September I entered into a purchase agreement to buy the house with the owner in Seattle. On August 5th I applied for a permit and was granted..granted one or given one for the additional floor. Numerous times I've discussed this addition with neighbors and everyone that was concerned or would be affected by the addition. Some were unhappy with it, others said they felt we had to 'to what we had to do and could do it. I recently read staff's recommendation to the Commission here and basically feel it's prejudiced because there is a Commissioner that's..uh..is the major complainant on the..in the issue here. Uhm..we bought the house; it wasn't adequate for our needs; we felt the addition would be necessary for us to continue to live in that house with our family; and too uh we needed the room. I followed every course that I felt was necessary to do it and was informed that I could do..do so. And uhm that's basically all I have to say. CHAIRMAN GREGG: Any questions? Seeing none, is there anyone else wishing to speak in favor? Seeing none, anyone opposed? MR. HILL: Do you want us to sign in? CHAIRMAN GREGG: Doesn't need to be. MR. HILL: Tim Hill, I'm the complainant. Uh..I did show the house to Mr. Perrozzi. I was landlord of the..of the struc- ture for two years and I know a lot about the structure. And Mr. Perrozzi was interested in buying the dwelling. I had no prob- 1'agc 6 Case 84-098 Verbatim 11 lem. Ub..I showed it to him; we stood in the living room, or in the dining room then, and uh he gave intent that he would..that he would go ahead and put an addition on or build out, do a few other things with the structure, and I informed him that it would need a variance. And uhm we discussed a few other little items, and then I told him I was a Planning and Zoning Commissioner. And that was let go. Uh..it was acknowledged that I was a Commissioner, but he was aware that if he was to do anything with the structure it would require a variance and I as a neighbor would be informed of..of anything that was going to be..increase on the structure. So..1,11 let the whole thing go and uh Mr. Perrozzi started doing his foundation in the rear. 1 had no problem with that, it needed a new foundation. Uh..it needs a lot of things on the house. And then I heard that, from the neighbors, that he was gonna put a second story up. And..well I didn't believe it, and I don't go and ask Joe if he was going to put a second story up. And surely I would uh not..I would be extremely opposed to a second story because it uh blocks my view. So..uh..a11 of a sudden there was some roofing material, shing- les, so I knew there was going to be not a flat roof at all. And there would have to be a gable on there or hip roof. So then I asked..a few days passed..and then we had a work session..or the meeting and I asked Mr. Cassidy "I think that we got a problem here." You know, asked him, I asked Linda Freed once at the beginning of the meeting and I asked Bud about four or five, six, seven times during the meeting, after the meeting. You know..I kept hounding him, you know, "what is it, there's got to be something wrong here. Does he have a building permit, let's check this thing out." And..uh..he checked it out and he called 12 Page 7 Case 84-098 Verbatim Mr. Perrozzi and said "we've got a problem here, and I don't think you should begin your structure." And 1 saw Mr. Perrozzi at the bank, the following day, and uhm Joe appeared to be'very concerned that the back wall was up. And knowing that he already had had a telephone call from Bud. And, well, "we'll just..we'll just shine it off a little bit. Tomorrow's Saturday, we'll go ahead and continue building." And I told him "I wouldn't du that, you know because you need a variance. Whether you got a building permit or not, you know, you need a variance. It's a nonconforming lot, somebody..somebody missed up here in she..in the Zoning office." So uh Sunday it rained; Monday it rained; Tuesday they were up on the roof and I kept, you know, John Sullivan and Bud Cassidy informed of everything that was going on. There was more people up on the roof on Tuesday and then Wednesday night we had our work session and on Thursday he was given a uh a cease and dismiss immediately. And he continued to work; on Friday there..he was given a court order (I didn't read through this yet) to cease and dismissed; and Saturday they worked. There was a person up on the roof on Sunday for a short time and uh I don't remember if anyone was working on Monday or not; and then on..then on Tuesday he had to go to court and there's not been not one nail or one board moved since then. Uh..it does not meet the front yard setback; it does not meet the south yard setback; it does not meet the rear yard setback. Its..the lot..the two lots combined are 3200 uh square feet. It is..it is an extremely small lot. What makes the lot look bigger is because the structure to the north is a very uh narrow lot and the structure basically sits on the lot lines. And uh the structure in front is sitting on my property. Mr. Perrozzi's ' Page 8 Case 84-098 Verbatim property is involved with my property because where my bulkhead is extends about another two feet or three feet farther into what appears to be Mr. Perrozzi's yard. Uh..all the structures are small. All the lots are small and uh behind us uh there's (one, two, three, four) four structures that are uh I would say between five and six uhm hundred square feet. And they all sit on small lots. And the view, you know, isn't or can not really be the issue here, but is is in a way because it affects six houses' views. And these people with the six houses can't do anything because they are all on nonconforming lots too. And most of the structures are sitting on lots lines, too close to the lots lines. And we try to maintain the..the original Kodiak Townsite up there. Ana to allow, you know, a second story to go up or a third story where it blocks the people's views and the houses aren't in tip-top shape, except for a few, all it does is lower the property value on them. And..and the houses aren't going to be worth anything. Neither will the property. I do have some pictures here which I'll pass around. And these photos were taken before the structure. Uhm..Bud has some after the third story was going up. And the interpretation on the uh building permit is, you know..several people read it and get different interpretations. And I also spoke with the person who was involved with a case similar...similar Co this and this was suppose to have been resolved so this can not happen again, uh..according to..or for the code to have uh if you get a cease and dismiss you know, or if you...if you appeal an administrative decision where you're not allowed to continue building and also building in a small area of the original Kodiak Townsite. But, nothing ever got up to Borough Assembly or City Council. So..but Page 9 Case 84-098 Verbatim I was informed that there was a folder...you couldn't find it? I was informed that there was a folder and that it was sitting on the Manager Phil Shealy's desk at one time, and it was from Will Walton. But since it hasn't been passed around. I don't think I have anything further. COMMISSIONER CROWE: You uh mentioned that it uh decreased your property value, do you have any..uh.. MR. HILL: My appraiser has not given me another appraisal yet. He did not want to give me another appraisal until he found out what happened at this meeting here. And if its going to go on to the City Council. You know, if we're going to have attor- neys involved and stuff like that. Right now I have not hired an attorney: But I did lose the sale of my house..uh..because of this, and I had several other people interested in my house who haven't even come up to ask me about buying my house yet because they know the structure's there. I do have a question on uhm..of Bud, under your recommendation, number two. Uh.."The pitch of the roof should be no greater than the roof that is currently under construction allowing eight -foot ceilings on each of the existing two stories, but adding no new story to the structure." If we've got eight -foot and..uh..I was on the roof with uh Mr. Perrozzi, I believe that Friday evening that he and I were at the bank together, uh he told me that what he was going to do was cut down about two feet to the roof line..or the ceiling line, once the structure was there and then go up. Is this what you're counting from, two feet, and if we're talking uhm say a hip roof ' of..a four -foot hip roof..go two feet plus another two feet? MR. CASSIDY: What I was trying to get at..it is niy under- standing that the bottom floor is not quite eight feet and Page 10 Case 84-098 Verbatim 0 �4 the middle, second floor, is ten feet and this would allow eight -foot ceilings on both the bottom floor and the top floor. Uh..basically..it's also my understanding that the roof line would begin at a lower point than the top of the—the top of the present ten floor? ceiling because of that extra room. Mk. HILL: How high are we talking the roof to be? "The pitch of the roof should be no greater than the roof that is currently under construction." MR:CASSIDY: I guess what I'm... MR. HILL: How..what's..when...where's the gable going to bel Is it going to be uh uh sixty feet down, if its a four -foot hip roof, then you're..its going to be two feet higher. It would be two feet cut and then two feet higher. MR. CASSIDY: Whatever the eight -foot ceilings..whatever that would work out to with eight -foot ceilings on the first floor and the second floor. MR. MR. MR. MR. MR. HILL: What..whac does that work out to be? CASSIDY: Approximately the same is my understanding. HILL: A four foot.. CASSIDY: Right. HILL: It can not be no greater than a four -foot hip roof? See I have no problem with that as long I know what we're talking about here. If he's going to go... Your hip roofs four feet now? MR. PERROZZI: Yeah. MR. HILL: So if he goes down to four..two feet and then its two feet, four -foot hip roof, I have no complaint with that. But the Ching about it is, you know, Mr. Perrozzi says that he uhm he's got. a two bedroom on the main floor and they have a Page 11 Case 84-098 Verbatim third child and this..and they need to uh expand. Well, 1..1 have a two bedroom and I have a third child now, and I need to expand but there's no place to do it. You know, and its nothing right for the hill. And so I'm selling it and moving onward. Do you have any questions? CHAIRMAN GREGG: I have a question for Mr. Perrozzi. house being used now as a duplex? MR. PERROZZI: Yes. CHAIRMAN GREGG: And do you..can you give e'e just an idea of how many square feet there are in the area that you occupy and the other unit? MR. PERROZZI: We have about 860 square feet on the main level and probably about 300 feet on the lower, efficiency level. It's deceiving looking from the front the amount of space in the lower level because of the mountain there and you're into solid rock past that..that first window there. So it's a small, efficiency apartment. It's not, well obviously not, a tull first floor. Uh..I have a question for the Commis..for staff here. Were these mailed out to all the other neighbors? Was there any any of the other neighbors? Any written Is the other response response? MR. CASSIDY: Maybe it would be important to find out when you received your notice Joe (not discernible). MR. PERROZZI: I got it the first day. You know, in that night's mail. COMMISSIONER CROWE: How many of the lots around you are rentals? Are you aware? PIR. PERROZZI: Pardon? COMMISSIONER CROWE: Dow many of the lots around you are rentals? Page 12 ' Case 84-098 Verbatim MR. PERROZZI: We talked to everybody directly involved with..behind us and whether or not it needs mentioning is uh some good neighbors of ours and the Hill's, the Cratty's, live direct- ly behind us. And when we informed them as we did everybody else that we were going to build onto the second floor, that they opted to sell their house. And we..or are..are rentals? COPOIISSIONER CROWE: Uh hum. PIR. PERROZZI: Ohl That I don't know. I guess next door, all along the..the street side they have rentals. That I know of. Except for the small... COMMISSIONER CROWE: Not have rentals. I wondered how many of the houses.. there's a lot of little houses in that area and I think that several of them, if not the majority of them are rentals. Do you know if it's true or not? MR. PERROZZI: Oh, that are rentals. You said "had" rentals. Uhm I believe there's a good portion, of them that are rentals, of the smaller ones. In fact, (not discernible), but most of the people that I talked to were renting up on the hill. } More primary residences is right on Rezanof, that face Rezanof. And the ones back up on Cope Street are more rental property. Uh..just basically getting back to what I had to say. Uhm..we talked to them, the Cratty's, Dana and John Cratty, and they opted to sell their house and Dana said, "Well, you know, obviously (not discernible) we appreciate the fact that you did come to talk to us before you made your decision, before you went ahead" And they felt that you had to do what you had to do. I did inform them as I informed everybody else that we had checked this out with Planning and Zoning and that a variance wasn't needed at the time and we had the building permit that they had Page 13 Case 84-098 Verbatim given us at that time. So, the reason I am emphasizing this is the fact that we did not, I repeat did not, try to conceal the fact that we were building this third story, additional story from the public or from our neighbors. And I would..I..Tim had every right to be mad if I felt that I had all of a sudden would throw this up right in front of them. But I do believe he knew. I believe he knew and he was aware of the fact. So..you know, we've got a considerable expense in our house. If we talk depreciation, I have to talk depreciation of my house without this third story. And what affect that'll have on my property value. And I paid a lot more of my house than Tim paid for his when he hought it. Tim.. MR. HILL: (from the audience and not discernible) MR. PERROZZI: Well, okay. Let's..let's just talk present value. At the time when I did buy which was just a few years ago..a couple of years ago..the existing price on the house without the addition was..would have been too much money for it. I bought potential value. I bought potential value with an existing..or with another story. That's what I purchased. Without that then I paid, as Tim is fond of saying "paid too much." Nobody's coming forth to say, "Okay, well since your property is depreciated cause the fact you cannot build on an additional story, here's a check for x amount of dollars." I'm sure the present owner, or the person that sold it, would be laughing if he knew this was going on right now. Perhaps he does. Perhaps he knew. Tim was agent for him when he showed the house. I don't want to get redundant on the, you know, all these different facts and stuff like that. This is the way we feel, this is the why we've gone ahead. Page 14 Case 84-098 Verbatim i6 CHAIRMAN GREGG: Any other questions? Anyone else wishing to speak for or against? MS. HILL: I'm Julie Hill and there are several points that I'd like to make. First of all, uhm..in response to your ques- tion, Virginia, concerning the number of rentals. There are eight rentals on the hill in that area that L.. that are..uhm directly involved in this. And uhm part of the reason I think that there's little public response in terms of your letters being sent out, is because of the large number of rentals, and that people feel that when they are in a rental position that they don't have as much say as an owner would have. So I think that's a large portion of your lack of response. I did, however, talk to a few of the neighbors and uhm I think what..what we're seeing here is probably..oh a problem -of communication in that, you know, when Joe and Jane first bought that house they talked about remodeling. We were glad= the house definitely needed to be remodeled. Everyone on the hill, you know, felt that all those houses up there have had to have some remodeling. And you can go through and drive through and tell which ones have and which ones haven't. And so uhm the question is in terms of what kind of remodeling was going to be done. And when we talked about it, you know, we see each other as neighbors, we're not close friends, but we do see each other as neighbors and..and converse as neighbors and enjoy each others company in that capacity. So when we did talk about it uhm there were lots of different things tossed around. One day I sat down there and there was some discussion in terms of expanding out to the side, instead of up, you know, expanding out to the side and..and putting in additional room in that way. Uhm for that reason, I/_ Page 15 Case 84-098 v since there was nothing clear...I know Joe never came to me and said he's going to put a third story on that house. Part of the reason that we did not pursue in terms of exactly "what are you going to do and why are you remodeling?" is because we knew that that that lot was a nonconforming lot. I mean Tim has been on P&Z long enough to have some information at hand and so we knew if there was going to be uhm additional space added to chat house it would need a variance. And we would have the opportunity to speak at that point. I don't..you know, chat's why we don't go up and say to our neighbor "Well, what kind of remodeling are you going to do?" You know, since we already know, or thought we knew, that it would be necessary to have a variance. You know, so if there was a problem with communication that may be. That's how most of these kinds of had firm, true information lots, you need a variance. situations turn out. We felt that we in terms of additions to nonconforming So that's why uhm we felt we would have an opportunity to get involved in this later if..if the situation would arise. The other thing that I think is important to point out is that uhm this.. this problem I see is basically a bureaucratic problem. The government made the mistake here. You know, uhm Perrozzi's were issued a build..a building permit for a nonconforming lot by someone that the..that the government employed. And now, we were basing our information on Planning and Zoning which is an extension of the government and..and the information that Tim knows as a Commissioner_ And so it just seems to me that.. that the problem is a result of an error that was made and now both parties are suffering. We're really sutiuring in that we have lost the sale of our house. we're in the process of building a new house that is based on the funding Page 16 Case 84-098 Verbatim that we would have received from selling our other house. You know, so that's fairly substantial suffering. Perrozzi's are.. are, you know, have right now, since they chose to go ahead and build, an expense involved in that materials and also their initial expense as they claim uhm when they first purchased the \1 house that they thought they would be able to do this. Uhm.. neither family has enough space in their house. We have chosen as a result of having..of not having enough space, to get a new house because there's no more space on that hill to build. You know, we..if we chose I suppose we could come to you and ask for a variance and put another floor on our house, but I think that part of..uhm I feel after living here for twelve years a certain responsibility towards Kodiak, in maintaining some of the charm of the community. And I think that that whole hillside does play a part in the uhm charm of the community. That there are people who choose to live in smaller homes like that. Who enjoy living downtown, who enjoy the view. Part..I think that..I know that the Commission does not like to get involved with placing a S} monetary value on view; however, I think that it is important to consider that one of the real assets to living in that.. that area of town is the view. You could go through and you could ask most anyone on the hill and say "Why do you choose to live here?" and they're sure not going to tell you "cause of the road." You know, they're going to tell you'it's because of the view. They like the view there. Now our view with the house has been hurt as a result of this. As a result of what appears to be a bureau- cratic error. Now I'm.. I'm under the impression and I may be wrong, but at the last meeting that I was at that somewhere in the Code that you operate from, uhm, if there is an error that Page 17 Case 84-098 Verbatim the building inspector did issue a building permit that was in error, that the Planning and Zoning regulations would take precedence. Is that true? CHAIRMAN GREGG: There is a section of the Code that states that a building permit issued in error is null and void. MRS. HILL: Yeah. So I think that uhm that there are several different factors that need to be considered in this. Uhm...you know, I'm..I'm not going to get into saying "Well, we thought this and they thought that" because that's simply going to be a value judgment on your part. I think that you need to look at it. And I think that you need to look at it in terms of..of problems that could reoccur. You know, uhm its not that dissimilar from other cases that you've.. that you've been uhm faced with in the past or that the city has been faced with in the past. Thank you. CHAIRMAN GREGG: Anyone else wishing to speak for or against? Seeing none, at this time close the public hearing and reconvene the regular meeting. What are the wishes of the Commission? COMMISSIONER KNIGHT: I'd like to ask a question of staff. Uhm..what's the uh under findings of fact, item two, how you feel that other properties would be prejudiced by granting a variance? MR. CASSIDY: That's strictly one of..of the testimony we talked about earlier...was view and the prejudice that would be involved by blocking one's view. COMMISSIONER KNIGHT: So staff is going to uh suggest that we possibly start legislating that uh people have a right to a view? And 1..1 have a bunch of trees in front of my house and Page 18 Case 84-098 Verbatim I.-7 the borough just recently knocked them all down to put a road through. I'm just wondering, uhm, do I have a right to those trees? As a view to those trees as opposed to the uh the street. I'm just wondering whether or not that's a valid.. and uh some- thing we really want to establish as a finding of fact. And to establish a precedent here of uh legislating that people have a right of view and that uh that's the purpose of the Planning Commission to see that they do. MR. CASSIDY: I think you'll find in case law, Marlin, that there's a lot of credence put on views and not only views but light uh and., and..in some examples anyway of case law you will find thac..that view is very important in making a decision. 'COMMISSIONER KNIGHT: Can you give an example of a..(not discernible) MR. CASSIDY: I. could uh, if you feel its appropriate I could go look in case files for it. COMMISSIONER KNIGHT: Well I know that., like I said at the work session, that this came up on the senior citizen center and there, was apparently a law suit generated uh because of that same issue. And I am aware that there are several other pieces of property up on that hill that have been built in front of. Uh, you know, even if they're conforming..let's say,that someone builds a conforming.. can we..do people have the right to come in and..and uh protest that because their view is blocked? I'm not sure that's a..that's something we want to start establishing. CHAIRMAN GREGG: I think.,I think that you're talking two different things here. One, I would say that uh impairment of that view does diminish the value of the property. COMMISSIONER KNICIIT: Is that a purpose of the Planning 8 Page 19 Case 84-098 Verbatim Commission? To start.. CHAIRMAN GREGG: That is one of things.. COMMIISSIONER KNIGHT: ..maintaining property values? CHAIRMAN GREGG: ..that is one of the things we are to consider. I would say that is prejudice to adjoining properties. That isn't what would..what would constitute it. COMMISSIONER .LAMES: I think it speaks more to safety and welfare though than..than land value. CHAIRMAN GREGG: Because that is specifically mentioned elsewhere. MS. FREED: The actual code section as a condition of the variance reads "that the granting of the variance would not result in material damage or prejudice to other properties in the vicinity, nor be detrimental to the public's health, safety, or general welfare." COMMISSIONER KNIGHT: Right. MS. FREED: It's a matter, I think that this was brought up at a previous Commission meeting, as to how you do indeed inter- pret those conditions and whether you as a Commission feel that the variance that is being requested does indeed meet the condi- tions or doesn't meet the conditions. Staff can only suggest what we may believe or feel are..whether the conditions are met. And in this case, Bud has suggested that indeed the granting of this variance would result in material damage or prejudice to the other properties. And I would suggest that is borne out somewhat by the testimony that you've received. But, again, the Commis- sion is flexible in their determination of what you believe material damage or prejudice to be. If you do not bulieve that the loss of a view or the loss of the ability Co have that Page 20 Case 84-098 Verbatim property appraised at the same value because of the view, is not material damage or prejudice to the property, then indeed you should consider that the variance meets the conditions. That's why we have a Commission is to decide in their best wisdom whether these conditions are met. COPPIISSIONER CROWE: The other thing I think uhm may not have..may not relate directly to this, but in a way maybe it does, uhm Nr. Perrozzi did follow the right steps and..and I don't think any of us are saying he didn't. But uhm I would say what assurances do uh the surrounding property owners have by ordinances that they think protect them? When you buy a piece of property uh.. those lots are obviously small and you feel or find out that they can't be enlarged upon because they..the majority are nonconforming, then you feel what you're buying is..every- thing is going to stay the same. Your view, your..so the set- backs are not quite right, but you know that when you buy the property, and you're willing to uhm live with what you're buying as it is at the time you buy it because you feel that the ordi- nances protect you from further infringement. COMMISSIONER KNIGHT: Well, I don't necessarily uh agree with you because I don't think that uhm anything is as static as uh..nothing ever changes. There's always change; it's a natural process. I looked at this part of the code and I have a similar problem that I'voiced previously on the nonconforming lots having uh en owner that has uh contiguous lots and not being able to sell one..or not being able to build on one lot; however, if he turns around and sells it to a neighbor, a neighbor can build on it. I real.. I'm trying to see the logic in that. What the purpose is. And I have a similar problem that's just been Page 21 Case 04-098 Verbatim brought to light here, in that uhm there was some comment that those houses up on that lot, and ones that I looked at while I was up there, I would agree are not in tip-top shape. Some of them are probably thirty and forty years old; some of the oldest structures in Kodiak. And in my mind there is some real safety and health hazards up there because of the.. the condition that they're in. Uhm..I can appreciate the uh comments made about maintaining the original townsite atmosphere and it does, you know, in fact the house that the Hill's live in I think is one of the nicest houses as far as maintaining the atmosphere but still being improved upon. But I eons..want to consider here what our objective is as a Planning Commission. In my mind I would think that one of our objectives, particularly in nonconforming uh properties because they're so uh abundant here in Kodiak, is that we should have a policy of improving those rather than restrict- ing them to stay the same, which I see this ordinance as. In other words, you can't do anything uh short of doing a few minor repairs to really improve those properties without coming through a variance process. And I..I..see..wonder whether or not we want to look into this code and rather than having as our main object- ive of uh as one of encouraging improvements to those nonconform- ing structures as opposed to what I feel right now is a policy of restricting the improvement of those structures. You can't alter them, you can't uh increase them. A lot of times, just what the Perrozzi's „and Perrozzi's house is exactly a uh a good example of a unit that I don't think anybody, and themselves included, uh doesn't need improvement. And by purchasing that and willing to invest in that property, and uh make it a nicer structure, and possibly even a safer structure that what it is now. You know, u Pogo 22 Case 84-098 Verbatim jq person normally just doesn't go in and rewire it without having to be able to'add value to the property. Uhm I'm just wondering if it shouldn't be a policy here, looking at this particular section of the code, of one of trying to encourage the improve- ments of those lots. I..I..you know, looking at it as a variance on a case by case basis, but taking into consideration that people are going to improve their properties, improve those • houses up there, because right now we're going to maintain to see them I think there's a lot of them up there that have broken windows and boards in front of them and uh there's a lot them in my mind are uh possibly fire hazards and will continue to be so. COMMISSIONER RENNELL: Okay, uhm, I have a question for Marlin. COMMISSIONER. KNIGHT: Uh hum. COMMISSIONER RENNELL: Uhm in the staff report here itself it says "The intent of regulations dealing with nonconforming structures are to eventually eliminate such structures when their economic usefulness ends, and eventally bring any new structure into full compliance with the code." Which uhm in my mind bears out what you're saying. But this evening uh are we discussing new policy or are we discussing... COMMISSIONER KNIGIIT: No, we're.. COMMISSIONER RENNELL: ..or their request for a variance? COMMISSIONER KNIGIIT; I'm discussing my discontent with the way the present ordinance..as they have in the past with the lot situation. But uh going back to the first comment. Could you restate the first comment you made? COMMISSIONER RENNELL; It's right in the staff report. COMMISSIONER KNIGIIT: Go ahead. 2U Sage 23 Casa 84-098 Verbatim COMMISSIONER RENNELL: "The intent of regulations dealing with nonconforming structures are to eventually eliminate such structures.." COMMISSIONER KNIGHT: Okay..right there is where I want to step because typically the way that happens is when structures burn., something does happen and it' burns down, or if it's torched off purposefully. Uhm, so at that point in time...we have to wait for that time before these units are improved, with the present policy of this particular ordinance, and I'm not talking about changing the ordinance tonight on this issue, but I think that it's something that I want revealed in the record uh that I have a concern about uhm a policy uh that basically uhm..I don't think is for the betterment of the community. Because I think betterment of the community is to have a policy that improves the property that is now deteriorated uh and needs improvement. COMMISSIONER CROWE: Do you not think that the repair and maintenance uh aspect of this uh leaves.. leaves credence to what you're... COMMISSIONER KNIGHT: No, because I think in most cases those have to be minor because again you can't do anything to alter...when you consider altering what is altering? To put a new root line on, you know, like their situation. Now they could go ahead and take recommendations of staff, they're still increas- ing the cubical, you know, size of the unit. Uh.. COMMISSIONER CROWE: Because you're.;you're considering that the attic that would come under (not discernible). COMMISSIONER KNIGHT: Now, 1 don't know, would it? The question is yes, I guess. the question to it is yes. Uh..i'm just.,want to throw out whether or not this uhm policy, you know, Mee ,, 2 4 Case 84-098 Verbatim for future we can discuss it at the work session tonight if you care or if you're not, but I think that it is appropriate to bring it up at this particular uh variance hearing. Because I think that uh rather than be concerned about maintaining property views as the purpose or objectiveof our Planning Commission or preserving ones view, you know if that was a big condition then I would suppose that there would be a lot of people whose views were blocked would be here. If that was a big concern. Happens to be one person. It seems to be a partial blockage not a full blockage as opposed to another house up there uh that Steve's familiar with the property - the big duplex in front of the white house, you know the one its.. COMMISSIONER RENNELL: Ryser's property. COMMISSIONER KNIGHT: Ryser's. You can go up and take a look at that and talk about a blockage of view, uhm. CHIAIRNAN GREGG: However that is conforming with the ordi- nances. There's been no.. COMMISSIONER KNIGHT: Right..right, and that's where my argument is. It's whether or not uh is..is that a valid argu- ment? Is to take blocking ones view as a uh basis for the declining a variance. That's all I have to say. C0MMISSIONER RENNELL: I have a question for Linda. In your experience uhm you know the whole issue of views and blocking of views uhm have you known of other cases and is it a standard policy for a Commission to consider this or not? MS. FREED: It's becoming something that not..not only 1s a aspect that is considered by the Commissions, it is indeed legislative. It is indeed part of zoning codes. And I..the ones that I am familiar with are down south. Uhm, particularly on the Page 25 Case 84-098 Verbatim west coast. Those areas do legislate height. They do it for two reasons as Bud commented, not only for view purposes but for solar heating. . COIMIISSIONER RENNELL: Yeah. MS. FREED: And for that deal of work in terms of what look at in terms of using the aspect. And that requires a great kind of side yards you're going to solar aspect for heating. And it is used very regularly at least in California. I have experi- enced directly with regulations that regulated for view, as well as for a number of other aesthetic considerations, in and around the suburbs of the city of Vancouver. And I would suggest that they have similar ones in the Seattle, as well, because they are concerned about it. And it's a concern that generally manifests itself in areas where indeed there is not much land and there is continuing development, and it's similar. 01d areas that people would like to preserve those views. One other comment, or one other thing I would like to comment on, indeed the intent of a nonconforming section in the code is to identify those uses that no longer conform to the regulations because conditions and community desires have changed. And indeed to do what the community can to get rid of those uses. That's the whole intent of it. If the Commission wants to encourage, as Marlin suggests, the improvement of nonconforming uses; you don't need a noncon- forming use section in your code. That's the whole purpose tor it. And I think if you went back 1977, we cite a Base where the request for a variance for this particular lot was requested to put in an addition adjacent to it rather than going up, going next door, and that was turned down for the reason that at time the code, although it was much smaller, was much stricter. And Page 26 Case 84-098 Verbatim 21 it very clearly stated that nonconforming uses shall not be added onto in any way that might prolong the permanencey of that structure. And that is generally a much more definitive section that is in a nonconforming use code. Frankly, our nonconforming use code is somewhat conflicting. And that is probably what has caused the problem that we're experiencing here tonight. The fact is that it says that a structure can exist as nonconforming as long..and it can be altered and enlarged generally as long as it doesn't increase the nonconformity, but there's that little caveat at the end of the section that says as long as you don't increase the cubical content. COMMISSIONER RENNELL: So in other words what you're saying is if we didn't allow anything it would be more consistent versus allowing some improvements and.. NS. FREED: Well, again that's why the variance procedure exists. To allow you, if in your wisdom you feel it's not going to be detrimental or it meets the..you know, that the criteria for a variance to indeed allow that. So generally that's what the intent of a nonconforming use section is. That's the purpose that's in the code. That's a reason the variance procedure exists is so that the Commission can decide whether they believe, within the framework of a specific case, that the structure could be allowed to be expanded or enlarged. But I think you'll find in most instances, and you know if Marlin is interested in looking at different places, I think you'll find the nonconform- ing use section fairly restrictive. They allow... COMMISSIONER KNIGHT: Well I'm familiar with Sausalito and uhm, you know, areas like that and I think that's what referring to. Where uhm very exclusive uh areas and a lot of those 2h . Page 27 Case 84-098 Verbatim possibly uhm the whole zoning ordinances come under uh possibly a question, you know, just with exclusionary zoning. You know, in a lot of areas like that. Uh, but I am familiar with areas. 1 think they are basically restricted to areas like south Sausa- lito, Tiburon, and ... COIOIISSIONER JAMES: Personally I'm all for recessing to the back room and discussing this. CHAIRMAN GREGG: I don't feel that would be in order. COHNISSIOHER CROWE: It would have to be for legal... COMMISSIONER JAMES: Oh, okay. COMMISSIONER CROWE: ..uh, I believe that that's the only reason. MS. FREED: It's a public meeting. CHAIRPIAN GREGG: What I'd like to,do; we have basically two questions. At this time I would like to consider the..the first part of the question which is whether or not we affirm the administrative decision. Uh, and it says "that the building permit is null and void." And I would entertain a motion or discussion. COMMISSIONER RENNELL: Mr. Chairman. CHAIRMAN GREGG: Mr. Rennell. COMMISSIONER RENNELL: I move to affirm the zoning officer's administrative decision ordering the discontinuation of con- struction or other preparatory activity leading to an unlawful structure since building permit 15131 is null and void per Section 17.03.060 of the Borough Code. COMMISSIONER KNIGHT: Second. CHAIRMAN GREGG: Any discussion? Seeing none can we have a roll call vote please? Pap. 28 Case 84-098 Vurbat im MS. KESTER: Mr. James, COMMISSIONER JAMES: Yes. MS. RESTER: Mr. Gregg. CHAIRMAN GREGG: Yes. MS. KESTER: hrs. Crowe. COIRIISSIONER CROWE: Yes. HS. KESTER: Mr, Knight. COPOIISSIONER KNIGHT: Yes. MS. KESTER: Mr. Rennell. COMMISSIONER RENNELL: Yes. MS. KESTER: Motion carries. CHAIRMAN GREGG: 1Rt..do you feel that we need to make findings of fact in particular..was the motion clear enough that we do not need findings of fact or do you.. MS. FREED: You need findings of fact. CHAIRMAN GREGG: In that case, I would like to suggest Chat: Whereas, Section 17.36.070 specifically states that..uh "On any nonconforming structure or on any building devoted in whole or in part to any nonconforming use, work may be done in any period o£ twelve consecutive months on ordinary repairs, or on repair or replacement of nonbearing walls, fixtures, wiring, or plumbing, provided that the cubical content of the building as it existed at the time of passage or amendment of the ordinance codified herein shall not be increased."' Where is the tag on that? I'm looking for the section of the code that specifically says it may not be increased,. the cubical content.. MS. FREED: 17.36.070C. CHAIRMAN GREGG: I was reading 17.36.040A. I don't find that particular piece of.. Page 29 Case 84-098 Verbatim COM0IISSIONER CROWE: (not discernible) is inconsistent with this section which states.. CHAIRMAN GREGG: Okay. All right, I'll find it, 17. COMMISSIONER CROWE: .040A? Is what you're looking for. WS. FREED: It's at the bottom of page two in the staff report. COMMISSIONER CROWE: 17.36.040A is not the repairs and maintenance section, right? MS. FREED: No, but it is indeed the second line of the last paragraph on page two, Section 17.36.070C.. CHAIRMAN GREGG: Okay. MS, FREED: ..is cited there. CHAIRMAN GREGG: I don't..1'11 Just have to turn to my section of the code in other words to.. M5. FREED: No, its in the staff report. Starts with the second line in the last paragraph on page two. "Repairs and Maintenance. On any nonconforming structure.." CIAIRMAN GREGG: Okay, "provided that.the cubical content of the building as it exis..(not discernible) shall not be in- creased." Okay, I was right. COMMISSIONER CROWE: Which is 17.36.070C. MS. FREED: Yes. CHAIRMAN GREGG: Correct. Whereas 17.36.070 says that and the building permit was issued in conflict with that; and Whereas 17.36.060C states that "any..any building permit issued in con- flic.. conflict with this title is null and void" we kind that that is the case. (Not discernible.) COMMISSIONER CROWE: That those are our findings of facts? CHAIRMAN GREGG: Yes. Page 30 Case 84-095 Verbatim 213 COMMISSIONER CROWE: I would so move. COMMISSIONER RENNELL: I'll second. CHAIRMAN GREGG: I don't know how to make that more clear. Any discussion? Can we have a roll call vote please. MS. KESTER: Mr. Gregg. CHAIRMAN GREGG: Yes. MS. RESTER: Mrs. Crowe. COMMISSIONER CROWE: Yes. MS. RESTER: Mr: James. COMMISSIONER JAMES: Yes. MS. KESTER: Mr. Hill. I'm sorry. Mr. Knight. COMMISSIONER KNIGHT: Yes. MS. KESTER: Mr. Fennell. COMMISSIONER RENNELL: Yes. MS. KESTER: Motion carries. CHAIRMAN' GREGG: Okay. The next item for consideration would be the variance. COMMISSIOhER JAMES: Uhm.. looking at these pictures of Tim's, I'm wondering if maybe some sort of a compromise can be worked out. Uhm..these pictures..a portion of the roof..a portion of the roof that was included was front south side I guess it would be. I'm wondering if maybe uh Mr. Perrozzi were to build un the rear end of the building another story in Che rear end..maybe if it wouldn't bbstruct the views of the people behind him as much. If possibly uh uh this may be a deck or something would be allowed on the uh..I guess it would be the east side of the building, the side bordering Rezanof. Something with open walls that wouldn't obstruct views. 2.4 Page 31 Case 84-098 Verbatim COMMISSIONER CROWE: I think there's enough area back. I'm..I'm trying to remember. COMMISSIONER JAMES: Well there is for uhm a small addition. COMMISSIONER RENNELL: Are you saying half of the length of the roof or.. COMMISSIONER JAMES: 1 would say half, yes, maybe 60 percent. COMMISSIONER CROWE: Do we have a..a copy of the uh building plan or anything? At..this type of thing is kind of hard to tie down. COMMISSIONER JAMES: I feel strongly enough about the booboos that both the former zoning administrator and the build- ing inspector have made that I would recommend to the Assembly that uh the Assembly would pay for whatever changes are necessary. COMMISSIONER RENNELL: City Council. COMMISSIONER CROWE: Nu it wouldn't be the Council chat would be.. they would be the appellant board. MRS. HILL: Can you please use the microphone Mr. James I can't hear you. COMMISS10NER JAMES: Yeah, I was saying chat the 1 fuel strongly dnough that the uh uh whatever changes would have to be made that uh I feel that the City Council should pay for chem. MS. FREED: Borough Assembly. COMMISSIONER CROWE: Borough Assembly. COMMISSIONER JAMES: The Borough Assembly. I was right the first time. COMMISSIONER CROWE: No the City Council would hear an appeal, but the Coun..the Borough would be the.. Page 32 Case 84-098 Verbatim CHAIRMAN GREGG: The Borough boobooed. COMHIISSIONER KNIGHT: Yeah, the Borough boobooed. Excuse me. COMMISSIONER CROWE: And they'd love it. COMMISSIONER JAMES: But I do feel that a compromise could be probably.. could probably be worked out. Or at least Considered. COM8IISSIONER KNIGHT: Are you proposing that to the uh people? COMMISSIONER JAMES: It might be worth reopening the public hearing for? CHAIRMAAN GREGG: Do we necessarily need to.. COMMISSIONER RENNELL: I prefer not to do something that people who were applying for their variance would rather not do at all, as we've done in the past. They're applying for this variance, they're not applying for Mr. James' compromise. COMMISSIONER KNIGHT: Well when a variance..when a variance is granted conditions can be applied. COMMISSIONER RENNELL: I understand that. COM@IISSIONER KNIGHT: That's the prerogative of the Planning Commission. And I wouldn't oppose uh Mr. James' uh.. COMMISSIONER RENNELL: What Mr. Rennell is saying though is in the past we've applied conditions that uh.. COMMISSIONER KNIGHIT: I understand, Dan. COMMISSIONER CROWE: Can I ask a question before..oh excuse me.. before we uh prolong this aspect of it. One of the parts of our staff report uh address flat roofs and uh...Mr. Perrozzi you've had the opportunity to see..was that one of the reasons Page 33 Case 84-098 Verbatim you're putting a pitched roof, is as it is addressed in..in our staff report? MR. PERROZZI: (from the audience) Well, the decision on the hip roof was (not discernible) and the decision. Well, again, the flat roof (not discernible). COMMISSIONER CROWE: The roof as it exists now, but uhm if 1 understand in our report I almost get the impression that flat roofs are..are hard to maintain because of the nature of our..our weather. Are you.. is that one of the reasons that you chose this rather that..because of the fact that you could not repair your existing.. MR. PERROZZI: (from the audience) Yeah, the fact of the amount of the inclement weather and (not discernible) the roof is (not discernible). COM@IISSIONER CROWE: So possibly then what Mr. James is suggesting would be..can you do what you're suggesting? COMBIISSIONER JAMES: There are ways of working it out, yes. So that you spoke_. see if there was a deck on the front half of the building you could uh put slats..you could put slats on.. and slope..slope the roof underneath the slats. COMMIISSIONER CROWE: Because I would be open to some amount of compromise. I liked what Mr. uh Cassidy came up with, myself. But I can see what.. MR. HILL: (from the audience). Can 1 ask for a point of clarification? Dan, what you're asking is to put a second story back here because of (not discernible). COMMISSIONER JAMES: Uh hum. MR. HILL: So you put a second story back here and a deck out here. Page 34 Case 84-098 Verbatim 2;:),/ 210 COMMISSIONER JAMES: Right. CHAIRMAN GREGG: No, the deck to the front. COMMISSIONER JAMES: Deck on the front. MR. HILL: That's right. Deck on the front and (not discernible). CHAIRMAN GREGG:That as I understand is what he was sug- gesting. COMMISSIONER JAMES: Right. MR. HILL: (From the audience) If you're going by my pic- tures you still..it still blocks the view because 1 have a panoramic view out of every window. (Not discernible.) COPDIISSIONER CROWE: At what point would you think this could be.. COPPIISSIONER JAMES: Do you have a picture? COPThLISSIONER CROWE: I have a picture, all I have is here. CHAIRMAN GREGG: lt's basically the same. (At this point, there was some discussion between Commissioner Crowe and Chairman Gregg, but it was not discernible.) COMMISSIONER CROWE: Are you totally uh dissatisfied with the uh suggested variance that the staff recommended? MR. PERROZZ1: (From the audience and not discernible.) COMMISSIONER CROWE: Could I read it to you? MR. PERROZZ1: Well, like 1 said, obviously (not discerni- ble) unless you have that experience to do that for me. C0MMISSI0NER CROWE: Unless I have the what? We did some.. CHAIRMAN GREGG: I think it could be summed up by basically saying that your existing roof line be lowered one story. That basically you put the roof that you are building uh on your existing.. other than.. Page 35 Case 84-098 Verbatim COMMISSIONER CROWE: Other than attic space and a roof that would uh be easier to seal. CHAIRMAN GREGG: More maintainable. MR. PERROZZI: I would like to receive a point of clarifi- cation from staff over here. At one point, Bud, the code basical- ly addresses these nonconforming structures to (not ciscernible). MS. FREED: There's no indication in the nonconforming use section that they are indeed suppose to be preserved. The section just says that if someone wants to preserve them there are opportunities to do just repairs and maintenance. The code clearly indicates..well, not quite as clear in this code as the previous code, but the intent of the nonconforming use structure ...section was to get rid of nonconforming structures. Was co eliminate them or to bring them into conformance. A number of those in your area as well as in Leite Addition, the only way to bring them into conformity is to chop half of them off (not discernible). Because of the original subdivision it's very difficult to bring the existing structures into conformity. MR. PERROZZI: (From the audience and not discernible). MS. FREED: You're asking a question I can not answer. CHAIRMAN GREGG: Uh.. Does the Commission wish to uh try to pursue some type of a compromise? COMMISSIONER JAMES: Well, I think we have 11r. Hill's opinion on that, I would like to get Mr. Perrozzi's. MR. PERROZZI:: I'm open co compromise and basically (not discernible) the fact that the compromise where there is "no cubical increase" is going to be a problem. (Not discernible.) COMMISSIONER CROWE: Couldn't you increase the..your cubical content by the..by not having a duplex? pitched I':q{e 36 Case 84-098 Verbatim HR. PERROZZI: (From the audience and not discernible.) COMMISSIONER CROWE: Well, that's what I mean, instead of using it as an additional residence, use it as part of your... MR. PERROZZI: (From the audience and not discernible.) COMMISSIONER CROWE: You're saying_the duplex downstairs is approximately 300 square feet. What is..I'm looking here..the cubical content increase uh if the second floor is..is allowed to take place. I think it's spelled out here but I can't.. CHAIRMAN GREGG: Useable square ,footage would be approxi- mately 800 square feet. COMMISSIONER KNIGHT: lir. Chairman, I don't know if it's necessarily the purpose of the uh Planning Commission to spend time here trying to work out a compromise when uh you know, without real input of the parties involved. I think we've made an attempt to uh see what their wishes are. I think we know what their wishes are. I only see two alternatives - one is to take action tonight, if that's what required or to table it and give them an opportunity to see if the parties can work out amongst themselves, and I don't know if that's necessarily what they want to do. I think both of them, from what I'm hearing, they want action tonight. Uhm..because we can come up with all kinds of ideas but unless they've had a chance to really look at it uh they can't make a decision tonight either. They've got to consider, you know, what they've got both invested in and I don't think they want to make a decision..that they don't want to have a chance to uh consider rather than having us tell them what uh.. COMMISSIONER CROWE: I think you have a good paint. What would you suggest that we do? Reconvene uh in a week's time and uh consider this or what are you saying? Page 37 Case 84-098 Verbatim COMMISSIONER KNIGHT: Well, I think we're going to have to take action. I'm getting a reading that both parties want it resolved tonight. Regardless of what the outcome is. That either of them or both are going to..I guess are going to have to follow up on uh which way it goes. There is going co be some party that's not happy with this and is going to appeal it, apparently. Uh..that's going to take another month. Uh..so probably more than that. Is there a timing? Do you have any idea when this would be appealed and resolved? MS. FREED: Well, it would need to be appealed to the City within ten days. It generally takes the City about a month under their current time frames to hear an appeal. COI•RIISSIONER KNIGHT: During an appeal. HS. FREED: The administrative decision stays. COMMISSIONER KNIGHT: Stays. MS. FREED: In this case the Planning and Zoning Commission decision would also be stayed. COHMISSIOMER CROWE: Well, I feel comfortable with the suggestion of the staff. It doesn't give everybody what they want, a compromise never does, but the roof allows them to have uh some protection or to be able to con..construct something that would be able to protect their home better from what their current roof does. It'll also allow them.. it does uh under the strict interpretation..allow additional cubical content to the house but it would allow for storage as opposed to living, And 1 think it would uh have less impact on the surrounding uh properties. COMMISSIONER KNIGHT: I would just like to make a comment that uh its very impractical to provide storage in Alaska in your Page 38 Case 84-098 Verbatim z: attic. Usually..I don't know what the pitch of.the roof is..is it four to one pitch, I believe. Uh we, at the Housing Author- ity, discourage the attic to be used as a storage area. It's very..it's not a real good.. COMMISSIONER CROWE: I use it all the time. Why can't I7 COMMISSIONER KNIGHT: Well, (not discernible) there's a lot of technical (not discernible) the barrier, maintaining the vapors..the vapor barrier. COMMISSIONER CROWE: I understand thatpart of it, but I think there are ways of..I don't know, maybe it just the way (not discernible). CHAIRMAN GREGG: I would like to suggest one procedural thing, and that is if we are indeed going to consider uh granting the variance that staff has recommended. In that before doing that we do have act to act on the variance that the applicant has requested. M8. FREED: I'd also like co make a comment. After sitting here and listening to people's interpretations of what the staff recommendation is. I think it needs to be rewritten so its clarified uhm. Just a suggestion that comes to me is that the pitch of the roof should be no greater than a four -foot hip roof that will allow eight -foot ceilings on each of the existing two stories, but adding no new story to the structure. COIR4ISSIONER.CROWE: In adding it a hip....are you saying a hipped roof? and a pitched roof? 1..I.. MS. FREED: It's a kind of design and that's the kind of ceil...or the kind of roof that's going on the current building. Which is a..it's pitched on the sides and flat on the top and that's the kind of structure that's going on the existing. Page 39 Case 84-098 Verbatim CHAIRMAN GREGG: The hipped roof is one that is all four sides slope down, it's not flat on the top. COMMISSIONER CROWE: Are we saying "pitched" then or "hipped?" CHAIRMAN GREGG: It is pitched. COMMISSIONER KNIGHT: We're just saying basically that its pitched. COMMISSIONER CROWE: Okay, so that the terms are interchangeable? MS. FREED: Okay, it's my understanding..well I'm just trying to make sure that we're all clear on what it is. COMMISSIONER CROWE: That's..that's what's gonna be one of my questions. Are hipped and pitched the same? CHAIRMAN GREGG: Yes. COMMISSIONER CROWE: You guys all know that for sure, right?! CIIA1HMAN GRECG: Yes. MS. FREED: And a foul foot on the existing roof. COMMISSIONER CROWE: Uhm..would you repeat that terminology that you used. MS. FREED: I'm not sure bccause..at this point..what 1 said was "that the pitch of the roof should be no greater than a four - foot hipped roof that will allow eight -foot ceilings on each ot the existing two stories." COMMISSIONER CROWE: "Pitch no greater than a four -foot hipped roof that will allow eight -foot ceilings on each level?" CHAIRMAN GREGG: On the existing building, basically, "the original building" would perhaps be more clear. COMMISSIONER RENNELL: Mr. Chairman. Page 40 Case 84-098 Verbatim CHAIRMAN GREGG: Nr. Rennell. COMNSSIONER RENNELL: I move we grant a request for a variance from Section 17.36.070C of the Borough Code (Repairs and Maintenance) in order to provide relief from the administration.. administrative decision to permit the construction of a third - story addition that would increase the cubical content of a nonconforming structure. Lots 30 and 32, Block 19, Kodiak Townsite Alaska Subdivision, 307 Cope Street. CHAIRMAN GREGG: Is there a second? COMMISSIONER CROWE: With no uh conditions? COMMISSIONER RENNELL: This is what it has. CHAIRMAN GREGG: That..that is the variance request. COMMISSLONER KNIGHT: Second. CHAIRMAN GREGG: Any discussion? COMMISSIONER KNIGHT: Could we uh restate the motion again? It's here, right? It's the same one.. COMMISSIONER RENNELL: It's the second half of the beginning of the memorandum. It starts at "and a request." See what I'm looking et? COMMISSIONER KNIGHT: What's that? COMMISSIONER JAMES: lt's on the first page. COMMISSIONER RENNELL: First page. COMMISSIONER CROWE: He just read "A request for a variance" included in "a request for a variance in order to provide relief from the administrative decision to permit the construction of a third -story addition that would increase...," okay? CHAIRMAN GREGG: Any discussion? Seeing none, could we have a roll call vote please. MS. KESTER: Mr. Rennell. Page 41 Case 84-098 Verbatim CO1RMISSIONER RENNELL: No. MS. KESTER: Mr. Knight. COMMISSIONER KNIGHT: Yes. MS. KESTER: Mrs. Crowe. COMMISSIONER CROWE: No. MS. KESTER: Mr. Gregg. CIIAIRMAN GREGG: No. MS. KESTER: Mr. James. COMMISSIONER JAMES: Yes. AIS. KESTER: Motion fails. COMMISSIONER CROWE: CHAIRMAN GREGG: Mrs. COMMISSIONER CROWE: Mr. Chairman. Crowe. I would move that we grant a request for a variance from Section 17.36.070 to permit the construction of a pitched roof to be added uh to the existing structure. The pitch of the roof should be no greater than four..a four -foot hip roof that would allow an eight -foot ceiling on the original building...of the existing..here they have the..the existing two stories. COMMISSIONER RENNELL: *Linda. Virginia? COMMISSIONER CROWE: Yes, excuse me. MS. FREED: I hate to interrupt your motion, but I've just talked to Bud a little more and he thinksthat motion needs to be clarified. So if you don't table it you can let it die on the floor. We'll give you the right one. Secondly, you need to have findings of fact for your previous motion. Of why you denied the request. Which would you like first? Would you like the reword- ing of the motion?_ CIIAIRMAN GREGG: Is there a second on the motion? Pnl{e 42 Cane 84-098 VcrbaLie 30 COMMISSIONER CROWE: Oh, 1..I could withdraw my motion at this time. . PIS. FREED: I apologize, but after talking with Bud I think we've got a better clarification. He did get some information from Bryce Gordon that I wasn't aware of. CHAIRMAN GREGG: Okay, I think it would probably be uh better to clean things up behind us as we go along. I think findings of fact to the original motion would be in order first. One thing I would like to suggest is the that to the uh 1) there are no exceptional physical circumstances evident to allow the variance request to be approved; 2) I don't know if we should specifically state that impairment of view would constitute prejudice to the neighboring properties, or if weshould just...1 personally believe that uh that we have considered primarily impairment of view and I would like to suggest that impairment of view constitute prejudice to the adjoining properties and other properties in the neighborhood would thus be prejudiced by granting of a variance to construct a third story addition to the existing structure...structure. COMMISSIONER CROWE: That was one of the things that I considered. COMMISSIONER RENNELL: I did too. CHAIRMAN GREGG: Anybody have anything to add? COMMISSIONER CRONE: I would so move. CHAIRILVM GREGG: Moved. Is there a second? COMMISSIONER RENNELL: I'll second. CHAIRMAN GREGG: Any discussion? Can we have a roll call vote please. MS. KESTER: Mr. James. Page 4) Case 84-098 Verbatim COMMISSIONER JAMES: Yes. MS. KESTER: Mr. Gregg. CHAIRMAN GREGG: Yes, MS. KESTER: Mrs. Crowe. COMMISSIONER CROWE: Yes. MS. KESTER: Mr. Knight. COMMISSIONER KNIGHT: No. MS. KESTER: Nr. Rennell. COMMISSIONER RENNELL: Yes. PIS. KESTER: Motion carries. CHAIRMAN GREGG: Okay. M5. FREED: I'll give it a try a second time. "Move to grant a variance from Section 17.36.070 (Repairs and Maintenance) to permit the construction of a pitched roof to be added to the roof line of the existing structure with a four to twelve pitch.. pitch ratio?" CHAIRMAN GREGG: Four twelve pitch would be standard termin- ology. MS. FREED:. For those that build roofs. COMMISSIONER CROWE: (Not discernible) the builders can make a motion. MR. CASSIDY: If I may clarify that. That's. basically the roof that's there, you know, after talking with Bryce Gordon (not discernible). CHAIRMAN GREGG: Do we have that written down someplace. MS. FREED: Uh hum. CHAIRMAN GREGG: Would you please... MS. FREED: Eliminate the second section,..second sentence altogether, but "to grant a variance to permit the construction Page 44 Case 84-098 Verbatim of a pitched roof to be added to the roof line of the existing structure with a four- to twelve -foot pitch ratio." COMMISSIONER CROWE: Second floor (not discernible). CHAIRMAN GREGG: Pitch. COMMISSIONER CROWE: Pitch ratio? CHAIRMAN GREGG' Uh hum. COMMISSIONER CROWE: (Not discernible.) CHAIRMAN GREGG: You're taking notes. COMMISSIONER CROWE: Mr. Chairman. CHAIRMIAN GREGG: Mrs. Crowe. COMRIISSIONER CROWE: I. move to grant a variance from Section 17.36.070 to permit the construction of a pitched roof to be added to the roof line of the existing structure uhm of a four - to twelve -foot roof pitch ratio. CONNISSIONER RENNELL: I'll second that motion. CIIAIINIAN GREGG: Is there any discussion? Seeing none could we have a roll call vote please. MS. KESTER: Mr. Gregg. CHAIRMAN GREGG: Yes. MS. KESTER: Mrs. Crowe. COMMISSIONER CROWE: Yes. MS. KESTER: Mr. James. COMMISSIONER JAMES. No. MS. KESTER: Mr. Knight. COMMISSIONER KNIGHT: Yes. MS. KESTER: Mr. Rennell. COMMISSIONER RENNELL: Yes. MS. KESTER: Motion carries. Page 45 Case 84-098 Verbatim CHAIRMAN GREGG: Is there anything else that we nced to consider in this case? M5. FREED: Findings of fact for this variance. COMMISSIONER CROWE: I don't know..if this isn't for the record as a finding of fact, but to me the physical circumstances of that lot were used up in the other uh uh setback requirements that are already not met. This was an unhappy situation between the Perrozzi's and uh the surrounding neighbors, Mr. Hill in particular because he happened to be planning to sell his house and this is somewhat of a compromise uh to both. And that's why I was willing to go..to go with this type of a variance. M5. FREED: I suspect there will be a transcript on this. COMMISSIONER CROWE: Well no, I know. MS. FREED: How far off the record it will be I don't know. COMMISSIONER CROWE: I didn't (not discernible), it doesn't matter that's how I feel. CHAIRMAN GREGG: I think as far as findings of fact for that that general maintenance of the building, specifically the roof, requires replacement and that flat..flat roof would result in a problems similar to the existing roof. And therefore uh not allowing a variance to increase the cubical content to allow a pitched roof would result in unnecessary hardship, perhaps. COMMISSIONER KNIGHT: I feel that granting the variance will make an improvement to the existing structure and that.. that should be.. that is the purpose uh of the Planning Commission is to try to encourage improvement of nonconforming lots that need uh repair. That's why I granted the variance. CHAIRMAN GREGG: Anybody have anything to add? Page 46 Case 84-098 Verbatim 5 COMMISSIONER RENNELL: My..my reasoning I granted a variance is basically uh Mr. Perrozzi's a victim of uh a mistake of staff and this is uh relief I see appropriate for the situation. CHAIRMAN GREGG: I really don't feel that we are necessarily granting him a..any relief through that variance though. Speci- fically the relief requested. COMDIISSIONER CROWE: I think we're grant..I..I really feel like it's granting uh relief from the administrative decision. As much as anything..a certain amount of it anyway. but I would uhm move that we accept the comments of the Commissioners uh as our findings of fact. COMMISSIONER RENNELL: I'll second. CHAIRMAN GREGG: Any discussion? COMMISSIONER KNIGHT: I would..1 liked our findings of fact..1 don't know, we've done this in the past.. I'd like to be able to uh develop our findings of fact at our next uh meeting. if that's appropriate. COMMISSIONER CROWE: Okay, then I will withdraw my motion. COMMISSIONER RENNELL: Yeah. CHAIRMAN GREGG: Uh would it perhaps be better it if you just moved to table? COMMISSIONER KNIGHT: If we took..take..yeah, we'll table the findings of fact until our next scheduled uh meeting. COMMISSIONER CROWE: Our August uh meeting so that Perrozzi's know. COMMISSIONER KNIGHT: Right. CHAIRPAN GREGG: Okay and the motion was withdrawn with the concurrence of a second? COMMISSIONER CROWE: Yes. 1:52. Page 47 Case 84-098 Verbatim CHAIRMAN GRECG: All in favor of tabling, signify by saying aye. ALL THE COMISSIONERS: Aye. CHAIRMAN GREGG: All opposed, same sign. MS. FREED; Would you like us to come up with some draft findings of fact based on your comments? CHAIRMAN GREGG: Based on those comments please. If I can find my agenda here...audience comments. Mr. Perrozzi. NR. PERROZZI: You know, obviously you came here asking for apples and they give you oranges. You know, uh the pitched roof doesn't do me any good at all. And T..my initial comment earlier was the fact that you know I didn't get this until Bud..until about two hours before that. So I didn't know that their recom- mendation was going to be for denial. And I do believe that staff prejudiced the decision. And that's my feelings. Obvious- ly. you know, we'll have to go on to the Council for this. But uh you know maybe you guys are caught up..there's not much you can do either. You know, you have to protect your own situation because you're going to be in there down the line and obviously you've got to live with, you know, your fellow Commissioners. So..I.. it's regrettable you.. that staff made a..or the previous staff made a bad decision. It's affecting me immensely. You know, putting a bandaid is not going to be a solution to the problem. So.. COMMISSIONER CROWE: Mr. Perrozzi you do remember your right of appeal? MIR. PERROZZI: Oh definitely. CHAIRMAN GREGG: if there no other audience conm:euts, this time we'll adjourn. Page 48 at Case 84-098 Verbatin, KODIAK ISLAND BOROUGH PLANNING AND ZONING COMMISSION SPECIAL MEETING MINUTES AUGUST 6, 1984 I CALL TO ORDER The Special Meeting of August 6, 1984 vas called to order by Chairman Gregg at 7:32 p.m. in the Borough Assembly Chambers, Kodiak, Alaska. II ROLL CALL Commissioners Present: Ken Gregg, Chairman Virginia Crowe Marlin Knight Tim Hill Dan Jamas Stove Rennell Others Present: Linda Freed, Planning Director Bud Cassidy, Assistant Planner/ Zoning Officer Cathy Koster, Acting Secretary Commissioners Fred Patterson was absent and excused. la PUBLIC HEARING A) CASE 84-09B. An appeal from an administrative decision in accordance with Section 17.68.020 of the Borough Code ordering the discontinuation of construction or other preparatory activity leading to an unlawful use of land or structure (17.75.010 A.3.); and A request for a variance from Section 17.36.070(C) of the Borough Code (Repairs and Maintenance) in order to provide relief from the administrative decision to permit the construction of a third -story addition that would increase the cubical content of a nonconforming structure. Lots 30 and 32, Block 19, Kodiak Tovesite Alaska Subdivision. (Joe Perrozzi) Commissioner Hill asked for and vas excused from sitting on the Commission due to a conflict of interest in Case 84-098. Staff had no additional information and no public hearing notices had been returned. CHAIRMAN GREGG closed the Special Meeting and opened the Public Hearing. MR JOE 211101ZI, applicant, spoke in favor of the request. Mr. Perrozzi outlined some of the sequence of events for the Commission. He noted that Mr. Tim Hill had shown him the house in September 1983. After seeing the house, he calked to the Borough Planning Department regarding the requiremonta for a third -story addition and was advised that as long as the addition vas under the height limitation of 35 feet, he would not need a variance. Mr. Perrozzi then proceeded to buy the house and obtained a building permit to construct the addition. He discussed the addition with several of his neighbors, and although some vera unhappy about it, they recog- nized his right to proceed with construction. Mr. Perrozzi felt staff's recommendation vas "prejudiced" due co the fact that Commis- sioner Hill wee the major complainant in the case. MI. TIM HILL, complainant, spoke agalnat the request. At the time Hr. Perrozzi vas looking into purchasing the home. Mr. Hill had advised Mr. Perrozzi that he would need a variance before making any additions to the house. He told Mr. Perrozzi that he vas a Planning and Zoning Commissioner and because of chc variance process and his position on the Commission he would be made aware of any additions to the structure. When Hr. Hill had been told by neighbors that Mr. Perrozzi vas going to add another story onto the house, he didn't believe it and didn't bother to ask Mt. Perrozzi if there vas going to be an addition constructed since he knee a variance would be required. Later, vhen building materials were moved onto the lot. Hr. Hill asked staff to investigate whether or not Mr. Perrozzi had a building permit and could build an addition. After some investi- gation into the matter, Mr. dud Cassidy (the zoning officer) con- tacted Hr. Perrozzi and advised him that there vas a problem with the addition and the building permit Nr. Perrozzi had been issued. Nr. Hill later saw Mr. Peerotri and also advised him that another addition would require a variance even though he had been issued the building permit and that someone in the Zoning Office had made a mistake. Construction continued on the addition and Mr. Hill kept the city and borough advised as to what vas happening. Mr. Hill explained to the Commission that the way the house site on the los it did not meet most of the setbacks and also explained the characteristics of the surrounding neighborhood. Mr. Hill noted that six homes in the area would have their views damaged by the addition to Mr. Pcrrorti's home, and the addition would affect the neighboring property values. Nr. Hill informed the Commission that the addition. which now blocked the view of his home. had caused him to lose the sale of his house. He vas selling his house because his family vas graving, he needed a larger home, and he realized that he would not be able to add on to his present home on Cope Street due to its nonconforming status. CHAIRMAN GREGG asked Ms. Perrozzi if the house vas being used as a duplex and what the dimensions were of the two units. Mr. Ferretti responded that the main level of the duplex vas about 860 square feet and the efficiency unit vas about 300 square feet. JULIE HILL, adjacenc property owner, spoke against granting the request. Ms. Hill felt that part of the reason for a lack'of response by the neighbors to the public hearing notice may be that many of the homes are occupied by renters who may feel they don't have say in the issue because of their rental status. She had realized that the Perrozzi's intended to remodel the house in some manner, but was never informed by the Perrozzi's that they were going co put on a third -story addition. Hs. Hill had expected to hear through the Planning Department if any additions were going to be constructed because she knew the Petrozzi's would need a variance for this kind of construction. Ms. Hill stated chat chis issue vas a "bureaucratic problem" created by the governmenc (in issuing the building permit) and now both parties are suffering because of the error made. There being no further public testimony, CHAIRMAN GRECO closed the Public Hearing and reconvened chc Special Meeting. Commissioner Knight commented that it vas not necessarily the Planning and Zoning Commission's purpose to legislate "fleas" as had been recommended by staff as a finding of fact. Some discussion followed by the Commission as co how "view rights" related to this issue and whether it should be considered as one of the conditions for granting a variance. Other comments an the issue made by the Commission included protection of neighborhood properties from further infringement of nonconforming homes and the extent of improvements that should or could be made to nonconforming structures. COMMISSIONER RENNELL MOVED TO AFFIRM THE ZONING OFFICER'S ADMINISTRA- TIVE DECISION ordering the discontinuation of construction or ocher preparatory activity leading to an unlawful structure since building permit 95131 is null and void per Section 17.03.Oa0 of the Borough Code. The motion vas seconded and CARRIED by unanimous roll call vote. COMMISSIONER CRONE MOVED TO ADOPT AS FINDINGS OF FACT: Whereas, Section 17,16.070C. states "Repairs and Maintenance. On any nonconforming structure or. oany building devoted in whole or in part to any nonconforming use, work may be done in any period of twelve consecutive months on ordinary repairs, or Special Meeting August 6. 1984 33 n on repair or replacement of nonbearing walls, fixtures, wiring. or plumbing, provided that the cubical content of the building as it existed at the time of passage or amendment of the ordinance codified herein shall nor be increased:" and Whereas, Section 17.03.0600 of Borough Code states that "any building permit issued in conflict with this title Ls null and void, ' Therefore, building permit 15131 is null and void, since is conflicts with Section 17.36.070C of the Borough Code. The motion was seconded and CARRIED by unanimous roll call voce. Discussion £allowed by the Commission and Mr. ?errant as to working out some type of compromise in the granting of a variance for a new roof. COMMISSIONER RENNELL MOVED TO GRANT A REQUEST FOR A VARIANCE from Section 11.36.O7OC of the Borough Code (Repairs and Maintenance) in order to provide relief from the administrative decision to permit the construction of a third-srory addition that would increase the cubical concent of a nonconforming structure. Lots JO and 32, Block 19, Kodiak Touristic Alaska Subdivision; 307 Cope Street. The motion vas seconded and FAILED with Commissioners James and Knight voting YES. COMMISSIONER CROWE MOVED ADOPT AS FINDINGS OF FACT; 1. There are no exceptional physical circumstances evident to allow the variance request to be approved. 2. The impairment of view constitutes prejudice to adjoining properties, and other properties in the neighborhood would thus be prejudiced by a granting of a variance for the construction of a third -story addition to the existing structure. The motion was seconded and CARRIED with Commissioner Knight voting NO. COMMISSIONER CROWE MOVED TO GRANT A VARIANCE from Section 17.36.070 to permit the construction of a pitched roof to be added to the root line of the existing structure with a 4 to 12 roof pitch ratio. The motion was seconded and CARRIED with Commissioner James voting NO. COMMISSIONER CROWE MOVED TO ADOPT AS FINDINGS OF FACT: General maintenance of the building, specifically the roof, requires replacement; not allowing a pitched roof would result in unnecessary hardship; 2) Granting the variance will improve the existing structure, and it is the purpose of the Planning Commission to encourage improvement of nonconforming structures that need repair; and 3) To provide some relief from the administrative decision of the Planning Department. The motion was seconded, Commissioner Knight asked that the findings of fact be further developed for the next meeting and Commissioner Crowe withdrew her motion. COMMISSIONER KNIGHT mIDVED TO TABLE THE FINDINGS OF FACT until the regular Planning and Zoning Commission meeting on August IS, 1984, The motion was seconded and CARRIED by unanimous voice Vote. Staff was then directed to develop findings of fact for the Commission to review and adopt at their next regular meeting. IV AUDIENCE COMMENTS Nr. Perrotrl stated that the pitched roof did not satisfy his needs and that he would appeal the Commissioners' decision to the City Council. Mr. Perrorri reiterated that he thought staff's Special Meeting August 6, 1904 34 recommendation was "prejudiced" and that the Commission's decision was also "prejudiced" because the complainant in the case vas a Planning and Zoning Commissioner, V ADJOURNMENT CHAIRMAN GREGG adjourned the special meeting at 9,05 p.m. KODIAK ISLAND BOROUGH PLANNING AND ZONING COMMISSION By rs`" V Ken Gregg, Chalrmeep' ATTEST: ByPlanningct ta'# yy� DATE: 8' ; 5-r`/� Special Meeting -4- August PLANNING AND ZONING COMMISSION FINDINGS OF FACT FOR AN APPEAL FROM AN ADMINISTRATIVE DECISION AND A REQUEST FOR A VARIANCE LOTS 30 AND 32, BLOCK 19, KODIAK TOWNSITE ALASKA SUBDIVISION JOE PERROZZI The above-cited findings of fact were approved on August 15, 1984 by the Planning and Zoning Commission in the Kodiak Island Borough Assembly Chambers, 710 Mill Bay Road, Kodiak, Alaska. The meeting was conducted by the Kodiak Island Borough Planning and Zoning Commission, Mr. Ken Gregg, Chairman. CERT I F I CAT E THIS I5 TO CERTIFY: That the Findings of Fact for the matter of: AN APPEAL FROM AN ADMINISTRATIVE DECISION AND A REQUEST FOR A VARIANCE LOIS 30 AND 32, BLOCK 19, KODIAK TOWNSITE ALASKA SUBDIVISION JOE FERRUZZI were approved as herein appears and this is the original verbatim transcript thereof. KODIAK ISLAND BOROUGH Att c f �" ft¢ALbC _ try Kescbr, Secretary II1 Perrozzi Verbatim August 15, 19 PLANNING AND ZONING C0MMISSION MEMBERS AND KODIAK ISLANUtOROUGH STAFF Commission: KEN GREGG, CHAIRMAN STEVE RENNELL VIRGINIA CROWE .DAN JAMES TIM HILL MARLIN KNIGHT FRED PATTERSON Statf: DAVE CROWE, Borough Engineer, Engineering Department LINDA FREED, Director, Community Development Department BUD CASSIDY, Assistant Planner/Zoning Officer Community Development Department CATHY KESTER, Acting Secretary, Community Development DepartmenC Porrozzi Verbatim -9- August 15, 1984 PROCEED I N G S CHAIRMAN GREGG: Next item is, 1 believe, Item (E); findings of fact in Case 84-098. Uh have you provided anything to do.. M5. FREED: Yeah, we had it under Item K. If you check far enough; we put it under reports.. CHAIRMAN GREGG: Okay. MS. FREED: And the reason we did that is because it wasn't listed as an agenda item until after the special meeting. It has„ it should have a little tag on..in the packet. CHAIRMAN GREGG: 1 realize we put there..we put it under Old Busineas. COMMISSIONER CROWE: I realize it..1 can't remember where I kept seeing it. Mr. Chairman I move uh that we remove from the table uhm this item for consideration. COIDIISSIONER RENNELL: I'll second the motion. CHAIRMAN GREGG: All in favor stgnify by saying aye. ALL THE COMMISSIONERS: Aye. CHAIRMAN GREGG: All opposed same sign. COMMISSIONER CROWE: 1 chink that Linda uh reflected our discussion and our..rhe points we tried to bring out. 1 don't have any additions. Does anybody else? COMRMISSIONER PATTERSON: 1 have a question for staff. Linda, since I wasn't here for the meeting would it be proper for me to vote on the findings of fact? Perrozzi Verbatim August 15, 1984 MS. FREED: You could abstain if you feel uncomfortable in voting on the findings of fact. Since..since you did miss that meeting. COPAIISSIONER HILL: Do make a roll call. CHAIRMAN GREGG: I would also...I would also like (not decipherable). COMMISSIONER RENNELL: Is there..is there a motion to adopt? COMMISSIONER CROWE: Mr. Chairman, I move that we grant uh we accept the uh findings of fact as outlined on the .August 8 memo from the Planning Department. COMMISSIONER RENNELL: 1'11 second the motion. CHAIRMAN .GREGG: Is there any discussion? Seeing none, could we have a roll call vote please. 11S. KESTER: Mr. James. COMMISSIONER JAMES: Yes. MS. KESTER: 1Ir. Knight. COIDIISSIONER KNIGHT: Yes. PIS. KESTER: Mr. Patterson. COMMISSIONER PATTERSON: Abstain. 115. KESTER: Mr. Rennell. COMMISSIONER RENNELL: Yes. MS. KESTER: Mrs. Crowe. COMMISSIONER CROWE: Yes. MS. KESTER: Mr. Gregg. CHAIRMAN GREGG: Yes. COMIMISSIONE•R HILL: I'm not here. O I 1 0 Perrozzi Verbatim August 15, 1984 z5U KODIAK ISLAND BOROUGH PLANNING AND ZONING COMMISSION REGULAR MEETING - August IS, 1984 MINUTES I CALL TO ORDER The Regular Meeting of the planning and Zoning Commission n6 in calas led to order at 7:35,14.m. by Chairmen Gregg on August 15, Borough Assembly Chambers. II ROLL CALL Commissioners Present: Others Present: Linda Freed, Director Community Development Department Bud Cassidy, Assistant Planner/ Zoning Officer Community Development Department Dave Crowe, Borough Engineer Engineering Department Cathy Rester, Acting Secretary Community Development Department Ken Gregg. Chairman Virginia Crowe Tim Hill Dan James Harlin Knight Fred Patterson Steve Renneli III APPROVAL OF AGENDA COMMISSIONs the August2fi CROWE 1984 Special D 0END MeetingTHE afterEAudienceA to pprove Commentse and toef add Findings of Fact for Case 84-098 under Item (D), Old Business. The motion CARRIED by unanimous voice vote. IV MINUTES OF PREVIOUS MEETINGS COMMISSIONER CROWE MOVED TO ACCEPT THE MINUTES of the July I8, 1984 Planning and Zoning Commission meeting. The motion vas seconded and CARRIED by unanimous voice vote. V APPEARANCE REQUESTS AND AUDIENCE COMMENTS A. Glacier State Telephone Company; Approval of Siding Material. The Commission examined the samples of siding material proposed for Glacier State Telephone Company's new switching station. After some discussion. COMMISSIONER RENNELL MOVED TO VOICE NONOBJECTION to the selection of siding materials for Glacier State Telephone Company's new snitching station. ‚INC motion was seconded and CARRIED by unanimous voice vote. B. Kodiak Sheffield Hotel; Approval of Screening. In response to a letter of concern from Kathryn L. Kinnear, an adja- cent property owner to the Sheffield Hotel. the Commission addressed the issue of the type of screening that the Sheffield Hotel h provided between their property and the adjacent residential proper- ties. In order to give the Commission time to examine the screening, COMMISSIONER PENNELL MOVED TO TABLE any action on this Item until the regular September 1984 meeting. She motion was seconded and CARRIED by unanimous voice vote. Chairman Gregg directed staff to communicate to the Sheffield Rotel the need for proper screening; obtain possible recommendations for screening from hotel management; and advise the Sheffield Hotel of the concern that has been voiced by Ms. Kinnear. G. Dan Kodiak's Letter Regarding Mr. Arnie Twatcn's Request for for an Exception Hr. Haciak's letter .regarding Hr. Tweten's exception request for gravel extraction vas road into the record by Me. Freed. Mr. Maciak voiced total objection to any exception being granted to Mr. Tvoten and stated that gravel extraction should only occur in industrial -zoned land when done for commercial purposes. He stated "Mr. Tweeten's intent is to extract rock for commercial interest in residential zone area and then decide whether to develop the land for residential usage." V1 PUBLIC HEARINGS CHAIRMAN GREGG requested that public hearing testimony be limited to three minutes per individual. A) CASE 84-79. An Ordinance of the Kodiak Island Borough creating a new rural residential zoning district. (Planning and Zoning Commission) Staff noted that one public hearing notice had been returned and requested to be read into the record. Regular Session closed: Public.Hearing opened: ROBIN HEINRICHS spoke in favor of creating the new zoning district. He felt it provided a good transition between IRI lots and RI lets. Mr. Heinrichs noted that this new district would be beneficial to the area on the back side of Island Lake where sewer and eater are cur- rently being installed. TONY PEREZ spoke in opposition of the ordinance. Mr. Perez spoke on behalf of the residents en Spruce Cape (U55 3100 6 055 3101) and displayed a map showing how the residents of that area requested 7200 square foot lots for their area. "This is just to give you an idea thit most of the people, or a large majority of people, would like to see the grid system maintained of 7200 feet. If people want to subdivide their lots into larger lots that's their prerogative, but the basic is 7200 and you work up." TOM SIMMONS (letter read into the record by Ms. Freed) vas In favor of the ordinance. Pastor Simmons felt that the 20,000 square foot lots would be economically beneficial to buyers by providing them smaller lots in a lover price range. He also felt lots of that size would not add significantly greater density of people and homes co area zoned RRM . Public Hearing closed: Regular Session opened: COMMISSIONER REMELT MOVED TO REMOVE CASE 84-079 FROM THE TABLE. The motion was seconded and CARRIED by unanimous tell call vote. Commissioner James suggested introducing the RRMy district with the new comprehensive plan. The Commission alsodiscussed as on alternative revising the existing 881 Boning district to allow 20.000 square foot lots when sower and water were provided. This alternative would eliminate the need for the public hearing process each time an area received public sever and nater and individuals vented to subdivide their lots. COMMISSIONER CROWE MEWED TO TABLE CASE 84-079 until oho September 1984 meeting and directed staff to investigate revising the RRL zoning district. The motion was seconded CARRIED by unanimous voice vote. B) CASE 84-095. Request for a Variance from Section 17.34.030 (Area Requirements) of Borough Code to permit zero -lot -line construc- tion on -a lot that exceeds tho 3:1 depth to width ratio. Lot 8. Block 4. Elderborty Heights Subdivision. (E. 8. Darrington) Staff reported that additional public hearing notices had been returned and had been copied for the Commission. Regular Session closed: Public Hearing opened: JIM HEIKES, an adjacent property owner, neither spoke for or against the request, but requested that the Commission add a condition on the variance, if granted, to state that "The contractor and/or owner shall not cut any trees that lie outside of the existing plan for building and driveway." Mr. Heikes requested this condition because he was concerned that If the trees were clear-cut off the Subject property it would cause the trees en his property to become loosened and eventu- ally destroyed. TORY CCM, agent for the property owner. spoke in favor of the re- quest. Mr. Cook assured Mr. Heikes that no trees adjacent to the two property lines would be cut down; only the trees within a ten foot radius of the building and driveway access were proposed to be cut down. Public Hearing closed: Regular 'Session opened: COMMISSIONER CROWE MOVED TO GRANT A VARIANCE from Section 17.34,030 (Area Requirements) of Borough Code to permit a zero -lot -line structure on a lot that exceeds the 3:1 lot depth-to-vldth ratio with the following condition: That the cutting of trees is prohibited within 40 feet of the rear lot line that is common with Lot 6, Block 3, Russell Estates (Second Addition). The motion vas seconded. Chairman Gregg and Commissioner Knight questioned whether the condition would be at all enforceable by the Borough and felt that the condition would either have to be a gentleman's agreement between the property owners or a restriction in the deed. A roll call vote was taken and the motion CARRIED unanimously. C) CASE 84-096. Request for a Variance from Section 11.52.060 (Main Building) of Borough Code co permit the construction of a barn on Rural Residential One (RWM) zoned property in the absence of a residence. Located an a portion of U.S. Survey 1821. (Donald and Barbara Zimmerman) Staff reported that no public hearing notices had been received. Regular Session closed: Public Hearing opened: DOH ZIMMERMAN, applicant, spoke in favor of the request. Hr. Zimmer- man noted that the problems previously associated with this case had been negotiated with the adjacent property owners and those problems no longer existed. Mr. Zimmerman stated that he would agree to e three-year time limit to build a main dwelling on the lot. DR. 803 JOHNSON. an adjacent property owner. reported that an agree- ment had been negotiated between the parties involved and that there was no longer any objection to the request. Public Reeving closed: Regular Seseion opened: COMMISSIONER HILL MOVED TO GRANT A REQUEST FOR A VARIANCE from Section 17.52.060 (Main Building) of Borough Code to permit the construction of an agricultural building (horse barn) in the absence of a main dwelling used as a reeidence on a portion of V.S. Survey 1822. The motion was seconded. Commissioner Crowe expressed concern that property ownersor circumstances could change and that all that would remain an the subject property would be a barn on a residential piece of land. COMMISSIONER PATTERSON MOVED TO AMEND THE MOTION BY ADDING: 1. That, if within three years. the main residence has not been built that the Karn be reoved• and 2. That if the ownership of that lot changes, the barn be removed. The amendment wee seconded and CARRIED with Commissioner Rennell voting N0. A roll call vote an the main motion as amended was taken and CARRIED with Commissioner Rennell voting N0. Regular Meeting August 15, 1984 D) CASE 84-091. Request for an Exception from Section 17.21.020 (Permitted Uses) of Borough Code to allow a dwelling unit for a caretaker. Located on Business -zoned property; Lot 13, Block 1, New Kodiak Subdivision; 1120 Shelikof Avenue, (Are 'N' Spark Welding) Staff reported that the -applicant requested that the Commission table his request pending discussions with the City Council on this issue, Regular Session closed: Public Hearing opened: NO COM41ENTS Public Hearing closed: Regular Session opened: COMMISSIONER HILL MOVED TO TABLE Case 84-091 until the applicant asks tot the request to be put back on the agendamotion was seconded and CARRIED by unanimous volce vote. E) CASE 84-100. Request to rezone a portion of Loc IA. Tract A, U.S, Survey 3465 from Public Use Lands (PL) to Single -Family Residential (RI) (Lakeside Subdivision, First Addition) generally Iocated on the front side of Island Lake. (Kodiak Island Borough) Staff had no additional report. Regular Session closed: Public Hearing opened: SCOTT ARNDT spoke against the request and presented the Commission with a petition from the property owners in the area opposed to the rezoning request. He noted that all the property owners that he had been able to contact had signed the petition and are adamantly opposed to the rezoning. Mr. Arndt reported that the main concern with the 'rezoning is the increased density expected in the future and the need to maintain a pack far the area. BETTE BISHOP spoke against the rezoning. She stated chat "ideolog- ically" she was against rezoning any public lands into a residential toning classification. She noted that in the past the Planning and Zoning Commission had requested portions of new subdivisions to be set aside for open space, and she requested that the Commission maintain that position with this request. TONY PEREZ spoke against the request. Nr. Perez said that histor- ically the land had been set aside fora park, and he wished to see it remain that way. LORNA ARNDT spoke against the request. Mrs, Arndt wanted to know who initiated the action on the rezoning and was told that the Borough Assembly had. She saw the need to maintain the subject property as a park. Mrs. Arndt also objected to the Borough competing with private developers in selling property. She further objected to the three- minute time limit set on public hearing testimony. TED ROGER5, adjacent property owner, spoke against the request. the land is presently used and enjoyed as public use land, and he desired to see it remain that way. DON SWANSON, adjacent property owner, was opposed to the rezoning. DAVE RICKARD, adjacent property owner, spoke against the request, Mr. Rickard understood that the proposed subdivision would cost 81 million to develop and commented that developing the area as a park instead of a subdivision would cost considerably leas. He also felt that his land would be devalued by the new subdivision. Hr. Rickard would rather see the land leased to the Elks for use ase boy scout camp than be subdivided. Public Hearing closed: Regular Session opened: Commissioners Hill, Rennell, and Crowe all expressed their desire to see the land remain as public use land. Chairman Gregg suggested that Regular Meeting August 15, 1984 391 the wording of the motion be to not reaone the subject property as it would more accurately convey the -Mont of the Commission. COMMIS- SIONER PATTERSON MOVED TO RECOMMEND TO THE ASSEMBLY chat the portion of Lot IA, Tract A, U.S. Survey 3465, identified in the preliminary plat for Lakesido Subdivision as Blocks R-1, R-2, and R-), should be rezoned from Public Aise Londe (PL) to Single -Family Residential (R1) with the exception of Lot 10, Block R-2 (or whatever the lot designa- tion is on the final plat). The motion'was seconded and FAILED 4-1 with Commissioner Knight -voting YES. Commissioner Knight stated for the record chat the reason he voted for the request woe so the Borough Assembly. since they initiated the request. would have to sit through the testimony of the public during a public hearing. COMMISSIONER HILL MOVED TO ADOPT AS FINDINGS OF FACT: 1. Unanimous public testimony against the rezoning; 2. The property is in an established residential area and has historically been used for recreation; The adjacent area has recently been rezoned for higher density residential use. It is the last large tract of land available for recreation use in the vicinity. and The Service District Number One Advisory Board is opposed to the rezoning. The Commission considered the Service District's findings of fact in making their decision. The motion vas seconded and CARRIED by unanimous voice vote. CHAIRMAN GREGG called for a five-minute recess at 9:20 p.m.. and the meeting reconvened at 9:30 p.m. F) CASE 5-84.042. Vacation of Loto IA and 2A, Tract A. U.S. Survey 3465; and replat to Lakeside Subdivision, First Addition (Blocks R -I, 5-2, 11-3, and Croup Camp Lease Site). (Kodiak Island Borough) Ms. Freed explained that Public Use lands can be subdivided into 7200 square foot lots, but recommended that the subject property not be replanted since the property was not recommended to be rezoned. Mr. Crowe reported that one public hearing notice had been returned opposing the replotting. Regular Session closed: Public Hearing opened: SCOTT ARNDT spoke in opposition of the subdivision. Mr. Arndt ex- pressed concern, on behalf of the Service District, that it vas poor planning to carry the industrial rood (Smokey's Road) through to a residential arca. The Service District proposed that the industrial road be dead -ended into a cul-de-sac so it does not enter the residen- tial area. The Service District also requested that the Dark Lake access road In the Lakeside Subdivision be platted but not put in. Public Hearing closed: Regular Session opened: COMMISSIONER MILL MOVED TO GRANT PRELIMINARY APPROVAL TO CASE 5-84- 042, vacation of Lots IA and 2A, Tract A, U.S. Survey 3465; and replat to Lakeside Subdivision, First Addition (Blocks 13-1, R-2, R-3. and Group Camp -Lease Site). The motion was seconded and FAILED by unanimous roll call vote. COMMISSIONER PENNELL MOVED TO ADOPT AS FINDINGS OF FACT: 1. Unanimous public testimony against the subdivision; The property is in an established residential area and has historically been used for recreation. 3. The adjacent area has recently been rezoned for higher density residential use. 4. It is the last Large tract of land available for recreation use in the vicinity; and 5. the Service District Number One Advisory Board is opposed to Cho subdivision. The Commission considered the Service District's findings of fact in making their decision. The motion vee seconded and CARRIED by unanimous voice vote. RnruLa y..rtne It ,nes 0) CASE S-84-039. Subdivision of Parc Lot 36 and Part Lot 38, Block 19, Kodiak Townslte Alaska; to Lots 36A and 368. Block 19, Kodiak Tovnsite Alaska, U.S. Survey 25378. (William and Teresa Bishop) Mr. Crewe reported that he had received one public hearing notice back from Mr. John Pugh requesting that the portion of the road extending past Cope Street be shown on the plat. Regular Session closed: Public Hearing opened: NO COMMENTS Public Hearing closed: Regular Session opened: COMMISSIONER CROWE MOVED TO GRANT FINAL APPROVAL to the subdivision of Part Lot 36 and Part Lot 38 Block 19, Kodiak Townsite Alaska' to Lots 36A and 368, Block 19, Kodiak Tovnsice Alaska. U.S. Survey 25378 with the following conditions: 8. That a public access easement be shown across the rear of Lots 36A and 368 in the location of the existing access road; and 2. That the "Basis of Bearing" be shown on the final plat. The motion was seconded and CARRIED by unanimous roll call vote. VII OLD BUSINESS • A) CASE 84-083. Request for an exception from Section 17.17.020 (Permitted Uses) of Borough Cade to permit the extraction of approximately 90,000 cubic yards of rock material from a rural residential lot; tot 2, Block 3. Monashka Bay Alaska Subdivision (Arnold Twecen) TABLED from July 18, 1984. COMMISSIONER CROWE MOVED TO REMOVE CASE 84-083 FROM TRE TABLE. Motion vas seconded and CARRIED by unanimous voice vote. Staff reported chat owners' signatures had been received on the exception application as is required by Borough Code. COPMISSIONER CRONE MOVED TO GRANT A REQUEST FOR AY EXCEPTION from Section 17,17.020 (Permitted Uses) of Borough Code co permit the extraction of approximately 90,000 cubic wards of rock material from a rural residential lot; Lot 2. Block 3. Monashka Bay Alaska Subdivi- sion. The motion was seconded. The applicant, Mt. Tweten, was alloyed to review his request. He explained to the Commission that the primary purpose of the requested rock removal is to allow the subdivision of the subject property into three lots. Mr. Tweten also identified for the Coemiasion the figure of 65,000 cubic yards as the maximum amount of rock that would be extracted; asked for a time limit of two years to accomplish this rock removal; and estimated that it would require 16 loads a day, 6 days a week, for 390 days to aaam» plisb this extraction.. CHAIRMAN GREGG called for a roll call vote and the melon FAILED unanimously. The Commission concurred that findings of face for Case 84-083 he adopted at the Commission's September 1984 meeting under Old Business. B) CASE 84-080. Request co Rezone a portion of U.S. Survey 5509, Port Lions Second Addition from Conservation to Rural Residential One in accordance with Section 17.72.030 (Manner of initiation) of Borough Coda. (Afognak Native Corporation) COMiISSIONER CROWE MOVED TO REMOVE CASE 84-080 FROM IHE TABLE. The motion vas seconded and CARRIED by unanimous voice voce. Staff reported that the applicant had not completed the revised plat 88 requested by the Commission at their last meeting and recommended tabling the request until the revised plat had been received. COMMIS- SIONER RENNELL MOPED TO TABLE CASE 84-080 until the applicant resub- mitted his revised plat. The motion vas seconded and CARRIED by unanimous voice vote. C) CASE 5-84-026. Subdivision of Lot 2. Block 2, Shahafka Acres Subdivision. U.S. Survey 3218; to Lot, 2A and 28, Block 2, Shshafke Acres Subdivision. V.S. Survey 3218. (Helen C. Nall) august 15. 1084 P .COMMISSIONER CROWE MOVED TO GRANT FINAL APPROVAL to the subdivision of Int 2, Block 2, Shahafka Acres Subdivision, U.S. Survey 3218[ to Lots 2A and 20, Block 2 Shahafka Acres Subdivision, U.S. Survey 1218. The motion vas seconded and CARRIED by unanimous roll call vote. D) .CASE 5-84-021. Subdivision of L'et 4A, Block 1. Shahafka Acres Subdivision. U.S. Survey 3218; to Lots 4A-1. 4A-2, and 4A-3,. Bieck i. Shahafka Aetna Subdivision. U.S. Survey 3218. (Nary Jana Roped) COMMISSIONER HILL MOVED TO GRANT FINAL APPROVAL to the subdivision of Lot 4A. Block 1, Shahafka Acres Subdivision. U.S. Survey 3218' to Locs 4A-1, 44-2, and 4A-3, Block 1, Shahafka Acres Subdivision, U.S. Survey 3218 with the following conditions; !. That a note be placed on the plat stating that no further subdivision of Lot 4A-3 be allowed; 2. That a building setback line be shown on Lot 4A-3, which shall be 25 feet from the rear lot lines of 4A-1 and 4A-2; 3. That a 15 -foot -wide utility easement be provided, centered on the lot lino between Lot 4A-1 and 4A-2' and 4. That a ten -foot -wide utility easement he provided along the lot line between Lot 3 and Lot 4A-3. The motion was seconded. COMMISSIONER KNIGHT MOVED TO AMEND THE MOTION BY ADDING: 5) Thar the replat be signed by the lending institution. The amendment was seconded and CARRIED with Commissioner Renneli voting NO. The main motion as amended CARRIED with Commissioner Ronnell voting NO. 1) CASE 84-098. Variance request. Lots 30 and 32. Block 19, Kodiak Townsite Alaska Subdivision. (Joe Perrozzi) COMMISSIONER CROWE MOVED TO REMOVE CASE 84-098 FROM THE TABLE. Motion was seconded and CARRIED by unanimous voice vote. COMMISSIONER CROWE MOVED TO ACCEPT THE FINDINGS OF FACT FROM THE PLANNING DEPARTMENT AS OUTLINFA BELOW: 1. Ceseral maintenance of the structure requires replacement of the existing fiat roof; not allowing a pitched roof would create similar problems currently existing with the flat roof and create an unnecessary hardship' 2. An unnecessary hardship would result by not allowing structural improvements to this nonconforming structure in need of repair; and 3. The appellant was granted a building permit (05131) on August 8, 1983. As a result of the Commission's decision on August 6, 1984 to affirm the administrative decision that this building permit is null and void per Section 17.03.060 of the Borough Code, the granting of this variance will grant some relief to the appellant. The motion was seconded and CARRIED with Commissioners Patterson and Hill abstaining. • VIII NEW BUSINESS B) C) Revised Parking Ordinance Gravel Extraction Planning and Zoning Commission Bylaws Amendments In order to give the Commission time for review, staff recommended that the Commission review the items under New Business. at their next work session. COMMISSIONER RPNNELL MOVED TO ACKNOWLEDGE RECEIPT OF ALL NEW BUSINESS, The motion was seconded. Commissioner Grove asked staff to clarify some of the proposed bylaws and amendments: I) establishment of a quorum; 2) Item R under 1I1 (Powers and Duties) relating to exception. requests and energy efficiency; and 3) the order of meetings as proposed to be amended. The motion CARRIED by unanimous voice vote. Regular Meeting IR COMMUNICATIONS A) Nitwit Groves. Time extension for required conditions on exception request granted in 1983. COMMISSIONER CROWE MOVED TO GRANT AN EXTEN5108 OF TIME through October 15. 1984 and review the Landscaping plan atter submittal bq. the applicant, The motion was seconded and CARRIED by unanimous voice vete. B) Afognak Native Corporation. Proposed Raft Logging Facility. Staff reported that Afognak Native Corporation is proposing to put in a raft logging facility in the Danger Bay area on Afognak Island and are currently getting their permits from the state and federal govern- ments. Ms. Freed noted that the Coastal Management Program does not directly address transfer points for timber harvesting. The corpora- tion Just wanted the Commission to be aware of their plans. X REPORTS Ms. Freed reported that the Community Development Department has hired a new secretary and her name is Patty Spencer. In response to an inquiry by Commissioner Crowe. Ms. Freed also reported that the Department had not yet advertised for the position that will investigate toning violations. XI AUDIENCE COMMENTS SCOTT ARNDT thanked the Commission for their action on the rezoning request for Lakeside Subdivision. Mr. Arndt also asked to be notified of the Commission's work sessions that will deal with the issue of gravel extraction. APPROVAL OF MINUTES COMMISSIONER UNWELL MOVED TO ACCEPT TME MOTES by revising "Chairman Rennell° on page two to read "CO MISSIONER Pennell." the motion was seconded and CARRIED with Commissioners Patterson and Hill abstaining. XII COMMISSIONERS' COMMENTS COMMI5510NER KNIGHT asked Ms. Freed to report the activity at the State Park Citizens Advisory Board meeting. Ms. Freed reported that this Board had met the previous evening and the issue of R/V parks had been discussed at the meeting by the -Board and State House'and Senate candidates. The basic consensus at this meeting was that restrictions an R/V parks should be relaxed so that private enterprise could put in more %/V parks. Assemblyman (and candidate) Naughton advised the Board and public in attendance that the Borough Assembly had intro- duced on [fret reading an ordinance at their August meeting revising the Borough's 9/V park ordinance. The Assembly has also asked staff to investigate and advise the Assembly of 9/V regulations in other municipalities in the state. COMM11SSIONER 941119SON asked staff to place en the next work session's agenda an amendment for the lot depth"to-width ratio requirements on the zero -lot -line ordinance. Commissioner Patterson also asked staff to give the background on the Lamont case as had been reported recent- ly in the Daily Mirror under letters to the editor. Hs. Freed ex- plained the past history of this case and relayed that the Department had written Mr. Lamont and advised him again that he is not to conduct a welding repair business on hie lot and chat he had thirty days to remove the metal from around the outside of the building. COMMISSIONER CROWE also asked staff if there were any other inconsis- tencies in the zero -lot -line ordinance and asked that they be reviewed as soon as possible at a work session. Commissioner Crowe also wanted CO know what the proposed revisions by the Assembly were to the R/V ordinance and how the Assembly could address revisions without Plan- ning and Zoning Commission review and recommendations. Ma. Freed then explained the proposed revisions and advised Commissioner Crowe that the Assembly was within their authority to revise an ordinance they had approved, without Commission review. August 15, 1984 Regular Meeting August 15. 1984 COMMISSIONER RENNELL suggested that a "tree" ordinance could be implemented in Kodiak. Commissioner Rennell also addressed the issue of R/V parks and noted that one of the main Issues would be sanitation. Na. Freed noted that the state has minimum regulations for sanitary facilities for R/V parks. COMMISSIONER HILL asked staff for an update on the Perrozzi court case. Nr. Cassidy reported that cbe hearing had been delayed for 60 days pending City Council action. Ms. Freed reported that Hr. Perroz— zihad been given an agreement outlining restrictions on his building permit; to date it had not been signed. COMOIISSIONER JAMES commented that a "tree" ordinance should not be 'enacted. There should be no restrictions on cutting of trees as the owner of a lot should be allowed to cut down trees he feels are necessary to develop his property. CHAIRMAN GREGG complimented the new format for staff reports that reflect the code requirements for granting of a variance. XIII ADJOURNMENT CHAIRMAN GREGG adjourned the meeting at 10:40 p.m. ATTEST BY: KODIAK ISLAND BOROUGH PLANNING AND ZONING COMMISSION Cathy Kescer, cting Secretary DATE APPROVED: AT(' /9, /9d5/ KODIAK ISLAND BOROUGH KODIAK ISLAND BOROUGH PLANNING AND ZONING COMMISSION SPECIAL MEETING AGENDA AUGUST 6, 1984 Call to order Roll call Public hearing A) CASE 84-098. An appeal from an administrative decision in accordance with Section 17.68.020 of the Borough Code ordering the discontinuation of construction or other preparatory activity leading to an unlawful use of land or structure (17.75.010 A.3.1: and A request for a variance from Section 17.36.070(C) of the Borough Code (Repairs and Maintenance) in order to provide relief from the administrative decision to permit the construction of a third -story addition that would increase the cubical content of a nonconforming structure. Lots 30 and 32, Block 19, Kodiak Townsite Alaska Subdivision (Joe Perrozzi). IV. Audience comments V. Adjournment KODIAK ISLAND BOROUGH DATE: T0: FROM: SUBJ: RE: ITEM III (A) MEMORANDUM August 6, 1984 Planning and Zoning Commissio Community Development Department Information for the August 6, 1984 Special Meeting Case 84-098. An appeal from an administrative decision in accordance with Section 17.68.020 of the Borough Code ordering the discontinuance of construction or other preparatory activity leading to an unlawful structure or an unlawful use of land or structure (17.75.010 A.3.); and a request for a variance from Section 17.36.070(C) of the Borough Code (Repairs and Mainten- ance) in order to provide relief from the administrative decision to permit the construction of a third -story addition that would increase the cubical content of a nonconforming structure. lots 30 and 32. Block 19, Kodiak Townsite Alaska Subdivision; 307 Cope Street. (Joe Perrozzi) 39 public hearing notices were mailed on July 31, 1984. 1. Applicant: Joe Perrozzi, Box 3696, Kodiak, Alaska 99615. 2. Land Owner: Same as applicant. 3. Request: An appeal from an administrative decision in accordance with Section 17.68.020 and a request for a variance from Section 17.36.070C. 4. Purpose: 1) Appeal from an administrative decision in accordance with Section 17.68.020 of the Borough Code ordering the discontinuance of construction or other preparatory activity leading to an unlawful structure of an unlawful use of land or structure (17.75.010 A.3.); and 2) to construct a third -story addition onto an existing two-story nonconforming structure. 5. Existing Zoning: R2. 6. Zoning History: The 1968 Comprehensive Plan indicates the zoning of this area as R2. In 1977, Case 489, the Planning and Zoning Commis- sion denied a request for a variance to allow the construction of a two-story addition on the east side of the existing building (see map). The reasons for denial include the following: 1. in 1977, a section of the Borough Code prohibited additions to nonconforming structures and prohibited the altering or enlarging of nonconforming structures to add permanence to the structure beyond what was necessary to protect the property's original interest; and 4. 2. The code also stated that the petitioner must show evidence of his ability and intention to proceed in accordance with submitted plans within a six-month time limit for a variance (these code sections ho longer exist). The reasons for denial were extracted from the recommendations of the zoning administrator since no findings of fact were specified by the Planning and Zoning Commission for the denial. No paperwork exiles to indicate whether this request for a variance met the criteria then existing for granting a variance. Departmental records show no additional activity. 7. Location: Lot 30 and 32, Block 19, Kodiak Townsite Alaska Subdivision; 310 West Rezanof and 307 Cope Street. 8. Lot Size: Lot 30: 3,135 square feet; Lot 32: 846 square feet. 9. Existing Land Use: Lot 30 contains a duplex and Lot 32 contains an accessory building. 10. Surrounding Land Use and Zoning: North: South: East: West: Lot 33, Block 19, Kodiak Townsite Subd; Zoning -R2; Use -R1 Rezanof Drive Lot 31, Block 19, Kodiak Townsite Subd; Zoning -R2; Use -R1 Lot 29, Block 19, Kodiak Towusite Subd; Zoning -R2; Use -R1 11. Comprehensive Plan: The Comprehensive Plea indicates these lots for high-density, residential development. 72. Applicable Regulations: Chapter 77.03.060C, Building Permits,..."Any building permit issued in conflict with this title is null and void." Chapter 17.75.010 A.3., Administrative Enforcement Action..."The Zoning Officer may order....the discontinuance of construction or other preparatory activity leading to an unlawful structure or an unlawful use of land or structure." Chapter 17.36, Existing Nonconforming Uses and Structures, Section 17.36.040 (Nonconforming Structures) states "where a lawful structure exists at the effective date of adoption or amendment to the ordi- nances codified in this title that could not be built under the existing terms of this chapter by reason of restrictions on area, lot coverage, height, yards, or other characteristics of the structure or its location on the lot, such structure may be continued so long as it remains otherwise lawful." This section further states "A. No structure nay be enlarged or altered in a way which increase its nonconformity." This code section implies that structural changes may be made as long as any nonconformity is not made greater. Section 17.36.040A is inconsistent with Section 17.36.070C which states... "Repairs and Maintenance. On any nonconforming structure or on any building devoted in whole or in part to any nonconforming use, work may be done in any period of twelve consecutive months on ordi- nary repairs, or on repair or replacement of nonbearing walls, fixtures, wiring, or plumbing, provided that the cubical content of the building as it existed at the time of passage or amendment of the ordinance codified herein shall not be increased." The general interpretation by the borough attorney is that Section 17.36.0700 (Repairs and Maintenance) of the Borough Code is not only stricter, but clearer than Section 17.36.040. Therefore, Section 17.36.0700 overrides Section 17.36.040. COMMENTS: A. Sequence of Events August 8. 1983. Building permit #5131 was issued and signed off by the City Building Official and the Zoning Administrator for Lots 30 and 32, Block 19, Kodiak Townsice Alaska Subdivision, owned by Mr. Joe Fervent. Building plans accompanied the building permit and are on file with the City Building Inspector. Since the time the permit was issued, foundation repairs have been made to the structure. These include a new concrete foundation, footings around most of the rear section of the structure, as well as replacement of selected Joists. July 18, 1984. A verbal complaint from Tim Hill asking staff to check into the validity of the building permit was stated at the Planning and Zoning Commission meeting on July 18. 1984. July 20, 1984 (Friday). A site investigation by staff accompanied by the property owner demonstrated that the front yard setback (as measured from Rezanof) and side yard setback is not adequate. A recent interpretation by the borough attorney on other nonconforming structures indicated that additions could be constructed as long as the nonconformity of the struc- ture is not increased. In this particular case, the encroachment into the front and side yard setbacks by the third -story addition was not being increased and therefore the addition appeared to be allowable. Since staff recognized the inconsistency between Section 17.36.0401 of the Borough Code and Section 17.36.070C, and the borough attorney was out of town, no further information could be obtained until Monday. Mr. Perrozzi was made aware of the conflict in the code, and that it might have some impact on his construction plans. July 23. 1984 (Monday). The borough attorney confirmed that the Repair and Maintenance section (17.36.0700) of the Borough Code was clear and that nonconforming structures are net be to be enlarged to add cubical content. Staff called Joe Perrozzi and informed him that his building permit was null and void because it was signed in conflict with Borough Code Section 17.03.060, and a variance was required before work could continue. John Sullivan called to inform staff that the Building Code allows the party to continue to build up to a point where his property and person are protected from damages. July 24, 1984 (Tuesday). A telephone call informed staff that work was continuing on the third -floor addition. Assuming John Sullivan would issue a stop work order, staff did not purse the call. July 25, 1984 (Wednesday). The Planning Director informed the Zoning Officer that a stop work order should be initiated by the Community Develop- ment Department. July 25, 1984 (Wednesday night - PAZ worksession). After discussion of the general parameters of the case, the Planning and Zoning Commission directed staff to place this case on the August agenda. July 26, 1984 (Thursday). A letter stating that all work "must cease immediately" was hand delivered to Mr. Perrozzi. July 27. 1984 (Friday). The Zoning Officer issued a summons and complaint to Mr. Perrozzi. Hr. Perrozzi stated that work would be discontinued when the roof was completed. He also stated that, according to the City Build- ing Inspector, he could continue until that stage of construction was completed. July 30, 1984 (Monday). Additional complaints about work continuing on the structure were received over the weekend. On Monday, July 30, an addition- al complaint was filed against Mr. Perrozzi for continuing to work after the stop work order was issued. Mr. Perrozzi also appealed the administra- tive decision that his building permit was null and void and the stop work order. He asked for relief by the granting of a variance by the Planning and Zoning Commission, to allow him to continue his construction. Also. a poll of Planning and Zoning Commissioners was conducted to determine the support for a special meeting to deal with this case. Ultimately, it was decided to have a special meeting on Monday, August 6th. July 31, 1984 (Tuesday). At 1:30 p.m. arraignment was held on the summons and complaint issued by the Borough. Hr. Perrozzi, through his attorney, entered a plea of not guilty. Work has discontinued. B. Building Permit Building Permit 05131 vas issued August 5. 1983. Although, in many places unclear, the permit does point out that a one-story addition of 864 square feet was to be constructed for a total height of 29 feet. Building plans on file with the permit at the City Building Inspector's office verified that a third -story addition was planned for this structure. C. Nonconforming Buildings As stated previously, a nonconforming building is a structure that could not be built until under the requirements of the present code due to improper lot coverage. height, and most commonly - setbacks. The structure may exist se long as it "remains otherwise lawful." The intent of regulations dealing with nonconforming structures are to eventually eliminate such structures when their economic usefulness ends, and eventually bring any new structure into full compliance with the code. In Kodiak there are many examples of nonconforming structures. Most of the Aleutian Homes, Leite Addition, and residential portions of Kodiak Townsite Alaska subdivisions contain nonconforming structures. This is primarily due to the small area of the lots and lack of regulation or enforcement during construction. The remedy to allow construction onto nonconforming structures is to follow the variance procedure. Control of other development factors can be attained by attaching conditions when granting the variance. Our files have many cases of variance request for additions to nonconforming structures. D. Building Height • The complainant that initiated these proceedings was concerned about the added height of the building, the view of the surrounding neighborhood that would be blocked, and the devaluation of property that would occur due to such action. The proposal to build an additional story may have dramatic affects on the neighborhood. This old section of town has a panoramic view of the boat harbor and downtown. In fact, it is this view that makes the neighborhood attractive. E. Flat Roofs The rain and vet snow in this climate make flat roofs impractical. Prob- lems develop with leakage as well as structural integrity due to snow loads. Ht. Petrozzi's roof is not adequate. The purpose for this construc- tion would alleviate leakage problems associated with the existing flat roof on the nonconforming structure. RECOMMENDATION: This case consists of two issues: 1. Building permit issued in violation of the Borough Code. Borough Code states that a building permit issued in conflict with the code is null and void. The Commission. in this instance, needs to either affirm or reverse the administrative decision that the building permit is null and void. 2. Request for a variance. The petitioner has asked the Commission to grant a variance that would allow construction to continue according to rhe original building permit. Staff recommends that a variance to allow construction as proposed to continue should not be approved since this case does not meet all the conditions of the Borough Code for granting a variance. A request for a variance for a nev structure on Lots 30 and 32 might meet all the code requirements for granting a variance. The process would also allow the Commission to limit the height of the structure by attaching certain conditions. To build as proposed may not meet all the requirements for granting a variance. Other properties would be prejudiced and exceptional physical circumstances beyond the need to replace the existing roof making it functional, do not exist. Staff concludes that a variance that would allow a pitched roof only, to be added to the top of the existing structure, should be granted. C This proposal would address the issue of view interruption as well as O dp problems associated with the existing roof. F APPROPRIATE MOTION: The Commission should consider the following action: 1. Move to affirm the zoning officer's'administrative decision ordering the discontinuation of construction or other preparatory activity leading to an unlawful structure since building permit 05131 i% null and void per Section 17.03.060 of the Borough Code. 2. Move to grant a variance from Section 17.36.070 (Repairs and Mainten- ance) to permit the construction of a pitched roof to be added to the roof line of the,aliitirg stfucture. The pitch of the roof should be no greater chan4thd'roof alt is currently under construction allowing eight -foot ceilings an each of the existing two stories, but adding no new story to the structure. Findings of Fact: 1. There are no exceptional physical circumstances evident to allow the variance request to be approved. 2. Other properties in the neighborhood would be prejudiced by granting a variance to construct a third -story addition to the existing structure. 416 S7 57-4 TE ,00 J MEMORANDUM TO: Linda Freed FROM: Joel Bolger JAMIN S BOLG JAMIN 8: BOLGER ATTORNEY! AT LAW POST OFFICE BOX 193 KOOIAK. ALASKA 99615 Kodiak Island Borough 10071 406-6081 RE: Kodiak Island Borough v. Joe Perrozzi DATE: August 6, 1984 I promised to send a memo concerning relevant considera- tions for the Planning and Zoning Commission in its meeting to consider the appeal filed by Joe Perrozzi concerning administra- tive enforcement action concerning an addition to his residence on Rezanof Drive. Bud Cassidy as Zoning Officer of the Kodiak Island Borough issued an order under RISC 17.75.010.a.3 which provides as fol- lows: 17.75.010. Administrative enforcement action. A. The zoning officer may order- 3. The discontinuation of construction or other pre- patory activity leading to an unlawful structure or an unlawful use of a land or structure.... The relevant considerations on a variance application are listed quite clearly at RISC 17.66.050. The procedure on appeal is listed at RISC 17.68.020. Rele- vant portions of this ordinance are set forth as follows: C. Public hearing. The Planning commission shall hold a public hearing on each appeal. At the hear- ing, the commission shall review the appeal record and hear evidence and arguments presented by persons interested in the appeal. D. Decision. The Plan- ning commission shall either affirm or reverse the MEMORANDUM TO: Linda Freed, RIB RE: Kodiak Island Borough v.. Joe Perrozzi DATE: August 6, 1984 Page 2 zoning officer's decision in whole or in part. E. Findings. Every decision of the Planning Commission on an appeal shall be based upon findings and conclu- sions adopted by the commission. The findings must be reasonably specific so as to provide the commun- ity, and where appropriate, the reviewing authorities, a clear and precise understanding of the reason for the decision. F. Stay. An appeal from the deci- sion of the zoning officer stays the decision appealed from until there is a final decision on the appeal. Outside of the general zoning questions which come up on an appeal of this nature, I assume that Joe Perrozzi will bring up his reliance on a previously issued building permit. The rele- vant factual determinations to decide whether Perrozzi should be allowed to rely on the previously issued building permit were recently outlined by the Alaska Supreme Court as follows: 1. Did the property owner receive a permit which was beyond the power of the administrative officer to grant? 2. Did the land owner detrimentally rely on the permit? 3. Has the government attempted to revoke the permit and enforce the appropriate zoning ordinance? 4. Should the construction be allowed to continue in the interest of justice? Relevant to the final question are the purposes of the zoning ordinances in the case, health and safety codes, and the character of the present structures in the area. These factors should be taken into consideration in the Planning Commission's decision on whether or not to affirm the enforcement action. Feel free to call if you have any questions concerning this memo. JHB/vkb KODIAK ISLAND BOROUGH July 26, 1984 Hr. Joe Perrozzi P. 0. Box 3696 Kodiak, Alaska 99615 Dear Hr. Petrozzi: Telephones 486-5736 . 486-5737 — Box 1246 KODIAK, ALASKA 99615 Re: Zoning Violation Lots 30 and 32, Block 19, Kodiak Townsite This is to inform you that building permit number 5131 issued on August 5. 1983 is null and void per Section 17.03.060 of Borough Code. The permit is in conflict with Section 17.36.070C of Borough Code which states: C. Repairs and Maintenance. On any nonconforming structure or an any building devoted in whole or in part to any nonconforming use, work may be done in any period of twelve consecutive months on ordinary repairs. or on repair or replacement of nonbearing walls, fixtures. wiring or plumbing, provided that the cubical content of the building . as it existed at the time of passage or amendment of the ordinance codified herein shall not be increased. Based on an investigation on July 20, 1984 it was determined that the structure on Lot 30, Block 19, Kodiak Townsite is a nonconforming structure because this dwelling fails co meet building setback requirements specified in the Borough Code. Therefore, the construction of an addition onto this structure is not in conformance with Section 17.36.0700 of the Borough Code. As a result, and by the authority of Section 17.75.010 of the Borough Cade, you are order to ..discontinue the construction or other preparatory activity leading to an unlawful structure." Any additional construction onto your structure is not lawful and must cease immediately. This decision may be appealed to the Planning and Zoning Commission within ten days of the mailing of this notice by filing a written notice of appeal with the Community Development Department stating the reason for the appeal and the relief sought (Section 17.68.020). , Should you have any questions. please call. Sincerely. Bud Cassidy Assistant Planner/Zoning Officer cmk cc Case file 4/5 City Building Inspector Complainants aku -043. d- z , /04, • . KODIAK ISLAND BOROUGH (DISPLAY AD) KODIAK ISLAND BOROUGH PLANNING AND ZONING COMMISSION SPECIAL MEETING The Planning and Zoning Commission will conduct a special meeting on Monday, August 6, 1984 at 7:30 p.m. in the Borough Assembly Chambers. There will be one Item on the agenda. An appeal from an administrative decision in accordance with Section 17.68.020 of the Borough Code ordering the discontinuation of construction or other preparatory activity leading to an unlawful structure or an unlawful use of land or structure (17.75.010 A.3.7; and A request for a variance from Section 17.36.070(C) of the Borough Code (Repairs and Maintenance) in order to provide relief from the administrative decision to permit the construction of a third -story addition that would increase the cubical content of a nonconforming structure. Lots 30 and 32, Block 19, Kodiak Townsite Alaska Subdivision (Joe Perrozzl). For more Information contact the Community Development Department at 486-5736. PUBLISH: Kodiak Mirror: August 1, 3 and 6, 1984 Kodiak Times: August 2, 1984 KODIAK ISLAND BOROUGH Community Development Department 710 Hill Bay Road Kodiak, Alaska 99615 PUBLIC HEARING NOTICE NOTICE DATE: July 3I, 1984 CASE HUMMER: 84-098 An application for an appeal from an administrative decision and a variance web filed with the Kodiak Island Borough Community Development Department by: JOE PERROZZI' The application requests an appeal from an administrative decision in accordance with Section 17.68.020 of the Borough Code ordering the discontinuance of construction or other preparatory activity leading to an unlawful structure or an unlawful use of land or structure (17.75.010 A.3.); and a request for a variance from Section 17.36.070(C) of the Borough Code (Repairs and Maintenance) in order to provide relief from the administrative decision to permit the construction of a chird-story addition that would increase the cubical content of a nonconforming structure. Lots 30 and 32, Block 19, Kodiak Townsite Alaska Subdivision; 307 Cope Street. The Planning and Zoning Commission will hold a PUBLIC HEARING on this request at their special meeting ac 7:30 p.m. on Monday, August 6, 1984, in the Borough Assembly Chambers, 710 Hill Bay Road, Kodiak, Alaska. This meeting is open co the public. You are being notified because you are a property owner in the area of the request. This is the only scheduled PUBLIC HEARING on the request an this time, and you are invited to appear before the Commission co express your opinion. 1 you cannot attend this PUBLIC BEARING and wish to comment on the request, 111 in the bottom of this notice and return it to the Community Development Department, 710 Mill Bay Road, Kodiak, Alaska, 99615. Your returned comment should be received PRIOR TO THE SCHEDULED MEETING DATE. A vicinity map showing the property involved is included on the back of this form. Ifyou have any questions on this matter, please feel free to call our Zoning Officer at 486-5736, extension 258. YOUR NAME: ADDRESS: YOUR PROPERTY DESCRIPTION: COMMMENTS: Ses Tl4 r rieL,L1!!4.eo.o/e c` 7t E4TUtFfE?5 __ a4I IOEs , SO 4,0 sr, wearG 49 JDIAK T0WNSITE US SURVEY 444 Tr G G ( ( R1340190240 COFFLANO.KENNETH C SUSAN P.O. BOX 1571 USCG KODIAK AK 99619 R1340190250 BURCH.ORAL C CHERIE P.O. BOX 2203 KODIAK AK 99615 SHORT.ROSE P.O. BOX 4 KODIAK HANNAH.PETER M P.O. SOX 3808 KODIAK R1340190234 AK 99615 R1340190270 AK 99615 R1340190280 KVASNIKOFF.H ILL 1AM P.O. BOX 137 KODIAK AK 99615 89001 E. ROBERT P.O. BOX 296 KODIAK 81340190290 AK 99615 81340190300 PERROZZI.JOSEPH C JANE P.O. BOX 3696 K00IAK AK 99615 ZHAROFF. FRED P.O. BOX 405 KODIAK 91340193310 AK 99615 ( ( ( R1340190111 UGANIK INC SHEFFIELD ENTERPRISES P.D. BOX 10-2960 ANCHORAGE AK 99510 91340190130 UGANIK INC P.O. B3X 10-2960 ANCHORAGE AK 99510 DAMON.HI YONG P.O. OCX 1784 KODIAK 91340190231 AK 99615 R1340190160 TENNISON.RONALO G MONICA P.O. BOX 2206 KODIAK AK 99615 3ROOKS,IRIS M P.O. BOX 2829 K00IAK R1340190170 AK 99615 91340190180 JONES.OUKE C GONNA P.O. BOX 1604 KODIAK AK 99615 _ R1340190232 HOODLEY.MICHAEL C DIANE P.O. BOX 3272 KODIAK AK.99615 R1340190201 PERRY.GARY LEE P.O. 30X 165 USCG KODIAK AK 99619 ( ( c ( R1340190220 VAVROCH.JOSEPH C MICHAEL P.O. SOX 2914 KODIAK AK 99615 R1340140011 FRANCISCO.LEON C JUDITH P.O. BOX 403 KODIAK AK 99615 81340140012 KILLEN.MICHAEL C SUSAN P.O. BOX 2668 K00IAK AK 99615 91340140020 BONGEN.JEROME C ELIZABETH P.O. SOX 3523 KODIAK AK 99615 JA£GER.MARY PO BOX 3064 SAN DIEGO R 1 340 1 400 30 0 MICHELLE CA 92103 R1340140040 JAEGER.MARY 0 MICHELLE P.0.80X 14 OT ANCHORAGE AK 99510 R1340140050 ROOL.VINCENT G MARY P.O. 9GX 541 KODIAK AK 99615 R1340190100 K111NEAR. BLAKE & KATHRYN P.O. 30X 2743 KODIAK AK 90615 ( 5/ ( ( 52 RI220030150 TURNER.SAJOAK & GERDEN P.O. BOX 1679 ANCHORAGE AK 99510 81220030160 ABENA.T IM P.O. 80X 2287 KODIAK AK 99615 R1220030110 OMLIO.S/ANDRENeL/ FUR IN. G/ ANDD. BJ. JGY/HAL TER.L OREN P.O. 80X 1700 KODIAK AK 99515 R1220030180 SHARRATT.GARY C. LINDA P.O. BOX 673 KODIAK AK 99615 ( R1220030190 JAMES.LELAND P 3116 ILIAMNA AVE. ANCHORAGE AK 99503 R1220030140 DICK.GLENN E VIRGINIA D P.O. BOX 2132 KODIAK AK 99615 R1220030110 KAZIM COMPANY THE P.O. BOX 746 KODIAK AK 99615 ( R1100000160 LARMAN CONSTRUCTION CO P.O. C-17705 SEATTLE ' NA 98107 R1340190312 PUGH. JOHN P.O. 80X 685 KODIAK AK 99615 R1340190330 HILL.TIMOTHY G JULIE P.O. ROX 2249 KODIAK AK 99615 R1340190382 4ESETH:HENRY E EUNICE XHETTNAN. CHARL ES P.O. BOX 2056 KODIAK AK 99615 R1340190342 MCCONNELL.OAAYNE N P.O. 90X 928 KODIAK AK 99615 R134019035 GRISTALOI. ANTHONY CR IST AL D I. BARBARA P.O. BOX 332 USCG K00IAK AK 99619 JENSEN.STEVE C P.O. BOX 3970 KODIAK ( ( ( ( R1340190352 JERI AK 99615 GOTTSCHALK.HARRY P.O. BOX 981 KODIAK THREINEN.0 4 JR P.O. 90X 930 KODIAK R1340190360 C GUYN AK 99615 81343190371 AK 99615 ( KODIAK ISLAND BOROUGH July 26, 1984 Mr. Joe Perrozzi P. 0. Box 3696 Kodiak. Alaska 99615 Dear Mr. Perrozzi: Telephones 486-5736 - 486-5737 — Box 1246 KODIAK, ALASKA 99615 Re: Zoning Violation Lots 30 and 32, Block 19, Kodiak Townsite This is to inform you that building permit number 5131 issued on August 5. 1983 is null and void per Section 17.03.060 of Borough Code. The permit is in conflict with Section 17.36.070C of Borough Code which states: C. Repairs and Maintenance. On any nonconforming structure or on any building devoted in whole or in part to any nonconforming use, work may be done in any period of twelve consecutive months on ordinary repairs, or on repair or replacement of nonbearing walls, fixtures, wiring or plumbing, provided that the cubical content of the building as it existed at the time of passage or amendment of the ordinance codified herein shall not be increased. Based on an investigation on July 20. 1984 it was determined that the structure on Lot 30, Block 19, Kodiak Townsite is a nonconforming structure becausethis dwelling fails to meet building setback requirements specified in the Borough Code. Therefore, the construction of an addition onto this structure is not in conformance with Section 17.36.070C of the Borough Code. As a result, and by the authority of Section 17.75.010 of the Borough Code, you are order to ..discontinue the' construction or other preparatory activity leading to an unlawful structure." Any additional construction onto your structure is not lawful and must cease immediately. This decision may be appealed to the Planning and Zoning Commission within ten days of the mailing of this notice by filing a written notice of appeal with the Community Development Department stating the reason for the appeal and the relief sought (Section 17.68.020). Should you have any questions, please call. Sincerely, vi/( Bud Cassidy ; Assistant Planner/Zoning Officer cmk cc Case file City Building Inspector Complainants ilk' If I MCI At c• Jas _t/ J X01? 7oIr u. • V/1✓.$L' c414? 77 }� 4d 1 ti r E J �, 1 • J % 1 1 //,.., . -yev rier9gq t,K..,6 1 'n" lisl IA N ,...i.,,,,,fo • 4�' 1, �----• 1,c;— stir .#1/ v 1 Ili$ „4,1 ti, s 40 11 17�� 1 • h-e J % 1 1 //,.., . rier9gq lisl IA . ,...i.,,,,,fo ,,/ I, 0 ) Lip, l/lif c \ h-e • :t•,‘•;iati,.c...ii...KODIAK ISLAND BOROUGH c.1.1--;••••tt:. ,. . - - •n.:• .- -..:, z`SiP,:1"1...•:-/.41%."..Li: 'I:KODIAKISLAND BOAUGH".. - - f< 7,, • ,:••• THIRD JUDICIAL DISTRICT:Y.: .;1.1.......-.:0LwLIL•L 1 ntan v.V.Stbe'i' .007....,1'13:::: .,;,45'1,• J.,,I,15,-, •,- '-; ;IP 0 !,....;‘, :‘ • ..h4:"" 'a r• ' ' '"'" .: :.. ....1„;S,.."•,: - L•.:. .....N..:-:--:-....-.....' ...... -a-. ;7...'4''...0F -MAsKA 10IiiI,i1N.THE THIRD JUDICIAL DISTRICT COURT OF ALASK4240-- p••• '.:',•---.“. -- , UN UNDERSIGNED. BEING DULY SWORN, UPON _,,,, ,;,), entit y- THE ....) 79-ADAT .E1E "3". iv OMPUUNT AFFIDAVIT- ••• ;,•-•..h. - . .r --......;-.4...t 844.55-fti1cLI 15 DAM DEPOSES AND SAYS: • ' •" ‘,11— 4 '.• ,24 -AT 9.1•0"het .-ON :19 . • • .3-7i NAME - pep° 0., 7 i '''' ' - — ' - .., ...,A -• ,- . (DEFENDANT) ... j'IPLEASE PRIII1)_t _ '.t.‘, FIRSt• :,),.TR,:::::• :1: MIDDLE "-' ;. STREET 941 fin/ 3g94. z0 ileilce.- • .r.6 .„ ., '-STATE-STATE folvfy - ..,,,,- ._. ....„,„.••..._,:„ , . . ,.„. AGE • ''• DATE ' RACE SEX /11 FIT.„,r1722: WT. .. ,... --Lo' EYES ' - • HAIRLAVfit‘2SOC SEC. NO ' ' __. - ..........._.. - _ . . _ . .. , •.:-: LIC NO ''• . - •NUMBER . -. - : - STATE - bl.•12":4 VEH. LIC: NO • ' STATE ' ' YR - MAKE' - ' STYLE ' COJOR ' , . AT OR NEAR - (LOCATIQN) iIII•j• .; . *,!0)PLACE OF EMPLOYMENT 1/0 AjAlte riTee - - Ne.:;t7--- • - • r.t.-4-: •010 UNLAWFULLY , . IN THKJUDICIALDISTRICT AND STATE, I 'VEY rT•r• -. - '-- ,'„ ., :•," AFORESAID COMMIT FRE FOLLOWING OFFENSE: • 1 0" t • . " . . .. ! , , ,c4 // ez - .. -ro - r ri •Al Pi- V.- - ill i '7171• • - '. /4t/ . CYEA tep - ---rs ri.,.6-.A v---.7.)N4.6.7.-,r, ..• t‘ Y/Cr i '7, 7-r- oi A rt-;-, e .- . , nic co /tit ! 6)469 7-4v/ 0 • ... e on, c7-rc. etc -7704/. 0g ;,./...i s • • ,.,• •-• 27 ivsv4i41,dent A'3-...r-regic-riip•r• -,; ... . . .. . : . . ,... ). . . ... • . . ,.. Am,,,, •,,- -• - '• 4 4. . WHICH IS IN VIOLATION OF - !ALASKA 1, I); ft STATUTE • ' ' ' ' ' .: iii,..0 ,. tOTHER „•_„1,-,!)YREGULATION •.: ....';'' BOROUGWeeltOd)RDINANFLE'''• 'a:;.,... THE UNDERSPEOUtilitRITAINIMAI HE HASAUST AND REASONABLE GROUNDS 100110E -AND DOES ::. A• :":. BE WIVE. MAT Tilt EEO& niteopainomminto THE OFFENSE HEREIN SET FORM:CONTRARY TO 'AW. it -t, SWORN 10 ANDAS4HITED BEFORE* - ..... f, - / , - . -• - .• •••,'"e• .47 DAYL• ,OF, "-•••••••• ./ 19 %—v" T IS ." "s 0 '. M. .‘ PP •Ce1":'M ' ;: - ,.1 t e' , .. 1(Sisnaturt Ind idemlilIcaliori q1 Alcor •••''' or MAT conwtaimmt) . . . (6,P0013 ) , ------------. ‘4 „ PR 1.):-..' 1 re*I,_ .g..") -,--,- -.it' -;:- LZA, C 0 U IT .A P P E RA N C E ' 111.a ' ItA l ...i • :': 19 '4W At../ .:1-11:1111 ': "?..)1 lAR.RALT•4Q/1/1"ONMENTP. 4 44 -• ADDRESS Oti,DOK: -• toi. 4 i •,..,•'*#, / ,,......,..4. ------131.pRoi9st tsspprili-ni.....svi um& AID IME ATIOF CE. ‘ v '' sCI;;,•,'1,!'i '41.1 - - ., , -:. , A, : J T:•';1.•1:2• -ire:, - -'17.$;•4 ,, .ISIGNAitkRE" 14 4r0,4!LIII,1L:. 's t/±ifC \-iTocou7»‘L . ' • t ,,qi k .. • • . , . . - :;. ..... s......,.... ...8 .;ti.;Li KODIAK ISLAND BOROUGH !j• . NOL c4.-7-77ttErtniz--; Nes:i0THIRD JUDICIAL DISTRICT4!,: LtS 69,t,- ;... ;2..,-L.,,Jci 41 V ' VtEL, *"4-L).r!,..,:!-; ii, * '" '11i,', ' ''i' OMPIAINT AFFIDAVIT ' •*/ ' ' '-J.1.'1 '440E. 444444 ZL',,x ;47;Thk'r: 17,77r*.t.t .'"r ..."‘'. ,, . ..t..r T i • .. L...- a -4171 = f IA THE THIRD JUDICIAL DISTRICT COURT OVAIASKAL'i-•"'f." ''' •°i' ' • '''L'Ali....LL!*4.;;;;L.,'Lt.' 0?"T:"..THEUNDERSICIIED. TIEING DULY SWORN. UPON IS OATH DEPOSES A110 SAYS: -"L"-Z-I''- VV«14 ..,, • • , .„ *. • •• • ' ' '• p9".-4fi iii 'SC DAY OF 19 AT /7"04e,Pwil l• (DEFENDANT):. ; LUSE KJ: STREET .„40."0 -1%. 19(04• PHONE4/8.4-1.••••3/41"-Ilb CITY-STATE i°•':/*/461,4Tes, al/eV/4 °I. ",AGE DATE 4 +':".....bilACE nX • HT WT. EYES HAIR!! SOD, SICK/ 7 • • LIC NO MIND/CLASS " . • NUMBER STATE • VEIS LIC. NO. ' ' STATE YR, 1,..• MAKE ; COLOR AT OR NEAR • •" (LOCATION) ;:'-• PLACE OF EMPLOYMENT /c -'a2. -c - DID UNLAWFULLY „ , IN THE JUDICIAL DISTRICT AND STATE • AFORESAID COMMIT THE FOLLOWING OFFENSE: . • (di " lr;71 (If t 6 CAS 1/}17, le , -7 5t0//e :Arai- • /0 etre,-/ Y, -7 t" • ei 4; e "frit c•••7' Pt?, • • -"A WHICH IS 114 VIOLATION OF . 'ALASKA I j**'.: STATUTE ' ' , 1 /E • OTHER I ,L.*:*3 -47.„),IEGULATIDNe ' . A.:' BOROUGH I ‘',01 T.„..0,RDINANCE*: ..!' '.'3c 1-:' 7 le*-•• •-• , ..- I1 :... --:y - THE UNDERSIGNED FURTHER,TATESTHAT HE HAULM AND REASONABLECRT/IMMO DELIEVIAND DOES • f ? , A METTEVE_THAT THE PERS0TARAMED ABOVECOWMITTED HIE OFFENSE HEREIN TEL TOM. CONTRARY 10 TAW. - ii.'... SWORN fl), AND SUBSCRIBE D*SETC1,1E ITC I, , e '7 . • 1 3,, .DAT OF , (Sign's/Seine iderdilimptionlitstfiiie :„ ..,4,. Mame ad/ 1 14. ) 1 ill:- . .. -- :lett. . .. • : l. DCE 111 qt• =... 'N.; . S ..4:d..' ::•77.,,. •••• ::: 7, 47. =- .,., *:•;.(are•ttnitt toorrinott f / T:,! '(ARRAIGNMENT) ` 4. N'a ,..4•S".., . --:4 ....... , ,c-iiLCOURT AVPEANANCE4 if,/ • DAYDE 1-":-. •' ti \ i * 11"- 1 iii*I." f!„‘ i ar -' f---,.., a • -- ..' ADDRESS OF COURT NA -s - • ... . . * ,I. ,./ ;el 1 / , , . -,ct. . ; : l, tl PROMISE TO APPEAR IIISAID COURT AT Ski/NOME AND PLACE), [ 1 ' ,9,:jI*L'LL, • •'. '' '',14!L:tL• it 7 .. .• ,.; '‘L,,•?/;"/ - 'Y. : :. ' 0 -•.;.)-SIGNATURE ' ' ; • TO COURT f_f�`��s/y �Z ! 1/ I sj\ BUILDING. •", . . Applicant to fill in between heavy lines. IL.W4 r../t-t PERMIT AND CERTIFICATE • OF OCCUPANCY CLASS OF WORK NEW BUILDING PERMIT NO. • DATE ISSUED . /BLDG. FEE SIZE OF BUILDING. NO. OF NO. SIZE OF LOT USE OF BLDG. NOW A, OT • • • SPECIFICATIONS FOUNDATION MATERIAL. WIDTH pF•i-op".,-,, I -6V 4 WIDTH OF BOTTOM - •• , . DEPTI-FIN GROUND • - ik is' - . N i 4.— i' s EXTERIOR, PIERS, R.W. PLATE (SILL) SI ZE 1— SPAN GIRDERS JOIST 1st. FL. Ic ' • JOIST 2nd. FL • JOIST CEILING EXTERIOR STUDS • se' f INTERIOR STUDS ROOF RAFTERS BEARING WALLS ft. ' - I' A. cciJkiiiNo A 1 ROOF.A% EXTERIOR WALLS '•.?:/:Yr RER0FING FLUES / 9 ' INTERIOR WALLS FIREPLACE. • , FL. FURNACE KITCHEN f 4' WATER HEATER -FURNACE-- GAS OIL • :fiergi3y.acknowledge that I have read application and state that the • above is correct and agree to comply with all CityOrdinances and State aws regulating b ng construction. 44111111,4 • 0. \.•!.•-••A ,•••Y! 1$.4.)•••:• . 4" ,4LL,t• - ft: • Applicant • t ••?,.• ' ;S. 3.; • • . • ZONING DISTRICT TYPE OF OCCUPANCY NUMBER OF STORIES ••••• AREA OF LOT 2/ / • ; • • • FRONT YARD SETBACK FR • M PROP. LINE SIDE YARD SETBACK FROM PROP...LIk :‘,L:''CM011/ REAR YARD Approved: CHIEF BUILDING OFFICAL Approved: ZONING ADM ISTRAtOR By: ODIAK ISLAND BOROUGH u VIOLATj9N WARNING Vat UC , Stli3 nn /F.e,eo e, QZ MIMI nee n/U roil sounoa'e 73 SC, -94)114 K. //, %.e:,.rr %✓s,/p ,,,,. 0.0-rbel (i^ J6/?'/ n Itall G'S73G ea0C1 e VIOLATION DESCRIPTION ❑ ABANDONED VEHICLE ❑ ❑ LITTERING / ❑ ❑ TRESPASS ❑ ,11ioxlNG ❑3en141.on, /Wit"( Specific Violation DesceipllorI.52C J /7.36..676c !'eZ. (ili,A,e7f..lt ore- 'Z,o Asti�/„/3 CG4/7E,✓7 0� el /YCNCGN-/d/"-'-f1 /$e/C/, /hq4, /v. -el 6t /,T(XS,- ea( I aanowI,dg, rnoaiving bit warning and understand that If I do not correct the violation described. a citation will be Issued ngnking my appno a cj0N. / tZ 7(2((.`�� !r (Date) • KODIAK ISLAND BOROUGH August 17, 1984 Mr. Joe Perrozzl Box 3696 Kodiak, Alaska 99615 Dear Mr. Perrozzl: Telephones 486.5736 • 486.5737 — Box 1246 KODIAK, ALASKA 99615 RE: Case 84-098. Appeal from an administrative decision and a variance request. Lots 30 and 32, Block 19, Kodiak Townsite Alaska. At the special meeting of the Planning and Zoning Commission on August 6, 1984, the Commission granted a variance from Section 17.36.070 (Repairs and Maintenance) for Case 84-098 for the following activity: "to permit the construction of a pitched roof to be added to the roof line of the existing structure with a 4 to 12 pitch ratio." The Commission postponed formalizing findings of fact at their August 6 meeting until their August 15, 1984 regular meeting. These findings of fact have now been adopted and include the following: 1. General maintenance of the structure requires replacement of the existing flat roof; not allowing a pitched roof would create similar problems cur- rently existing with the flat roof and create an unnecessary hardship; 2. An unnecessary hardship would result by net allowing necessary structural improvements to this nonconforming structure in need of repair; and 3. The appellant was granted a building permit (45131) on August 8, 1983. As a result of the Commission's decision on August 6, 1984 to affirm the admin- istrative decision that this building permit is null and void per Section 17.03.060 of the Borough Code, the granting of this variance will grant some relief to the appellant. Should you have additional questions, please call. Sincerely, COMMUNITY DEVELOPMENT DEPARTMENT Bud Cassidy Assistant Planner/Zoning Officer cmk cc Case 84-098 vity Clerk Tim Hill Joel Bolger, Borough Attorney October 4, 1984 Kodldk ista(id-Borough Kotak- Ciiir (PaNC;G Plannivg & Zoning -Administration Kodiak, Alaska 99615 The Planning & Zoning Administration adopted two findings of fact for their reason for denial of my variance. Both are incorrect and unsubstantiated. Reason Al was: " No exceptional physical circumstance or cond- itions applicable to this property or its intended use exist." When I bought the house the Zoning Administration told me a vari- ance would not be needed for the addition of another story. I applied for and received the building permit. The plans for the additional story are on file in the Borough Office and my building permit is conspicuously displayed. Legally, I could build my addition. This should be an adequate extenuating physical cir- cumstance that would allow the variance to be granted. Reason P2 was: " The granting of the variance would prejudice other properties in the vicinity by impairing the view of adja- cent homeowners." Contrary to the commission findings most'neigh- bors see the addition as an improvement to the neighborhood and in good character. Adjacent property owners have signed a peti- tion stating that they have no objection to the construction of the structure (See Attachment). No negative responses were recei- ved by Planning & Zoning when notices were sent out informing the neighbors of the special meeting. Residents on the hill have expressed dsires to improve their own properties and enlarge them. They do not want to go through my nightmares when they do. I would like to comment on the sole complaintant in the case, Mr. Tim Hill. Mr. Hill has stated that he was unaware of my plans to go up another story. We had serveral conversations about my planned addition. At no time did he mention that the value of his property would be affected. He did say that I should talk to John Cratty ( whoes property 1s directly behind me ) about what I planned to do. His contention that John Cratty would be upset is unfounded. Mike '.Woodley who has bought John Cratty's house was the first to sig the petition. Mr. Hill constructed an addition to his house without obtaining a building permit or a variance. He did this when, if anything, the Borough Code was ,stricter than it is now. The commissionyt apparently,simply just repremanded him and the matter was dropped. There was no chance for any neighborhood input into the matter. I would not like tb think that there is one law for Mr. Hill (who is Planning R Zoning Commissioner), and another for the rest of Kodiak. Sincerely Jo Perr'ozzi "W ""Wa"= a... v.a.om(ia+as«t 7..i •.v.J,..-.•....x..�.x+.. (05 October 19, 1984 Ms. Marcella Dalke, CMC City Clerk City of Kodiak Box 1397 Kodiak, AK 99615 Kodiak Island Borough P.O. BOP 1246 KODWAK, ALASKA 99615-1246 PHONE (90?) 116.5136 19 4 OCT iia MEWED Cif CLEM CONE 1217 Of CM Re: Appeal from an Administrative Decision and a Variance Request Case 84-098, Perrozzi Appeal of Denial Dear Marcella: The purpose of this letter is to respond, in writing to the statement from Mr. Ferrara' on the above -referenced appeal. 1 would like to clarify some of the issues raised in Mr. Perrozzi's letter. Mr. Perrozzi states that one of the reasons the Kodiak Island Borough Plan- ning and Zoning Commission denied his request for a variance is that: "no exceptional physical circumstances or conditions applicable to this property or its intended use exist." This statement does not adequately detail the criteria used by the Commission to review Mr. Perrozzi's request for relief (variance). Section 17,66.050A of the Borough Code states that all of the criteria for a variance must be met before a variance can be granted, including: "1. That there are exceptional physical circumstances or conditions applicable to the property or its intended use or development which do not generally apply to other properties in the same land use district." One of the Commission's reasons for not granting relief to Mr. Perrozzi in the form of a variance, is because his lot does not have exceptional physical circumstances or conditions that are applicable to his property and are not applicable to other properties in this area of town. Secondly, Mr. Perrozzi states that "contrary to the Commission's findings, most neighbors see the addition as an improvement to the neighborhood." Mr. Perrozzi then offers proof for this "fact" by presenting a petition and letter in support of his request. This documentation is invalid and must not be considered as part of the appeal. 'Section 17.10.080 of the City Code clearly states: "A. The board of adjustment shall hear appeals solely on the basis of the record established before the lower administrative body, thenotice of appeal, briefs submitted prior to the hearing, and arguments at the hearing." Ma. Marcella Dalke, CMC October 19, 1984 Page Two Por the information of the Board of Adjustment, the Commission only had three individuals testify or present comments on this case at the public hearing. Of the three individuals that testified, two were opposed to the Commission grantlief ce) and one win favor. The majoring pieceeofsquest informationa taken(inrntoaccount during other the hearing was the Staff report from the Community Development Department. It Is in the Staff report that the assertion is made that "the proposal to build an additional story may have dramatic affects on the neighborhood. This old section of town has a panoramic view of the boat harbor and downtown. In fact, it is this view that makes the neighborhood attractive." This assertion was not based on specific information provided by individuallstliving ngoin the area, nathe of these it was made based on the recognition that a large p an nonconform- ing nonconforming,small, old, and poorly accessed homes, ing and difficult to develop lots is the view. Thank you for the opportunity to respond to Mr. Perrozzi's written statement on this appeal. Sincerely, COMMUNITY DEVELOPMENT DEPARTMENT -441 Dud Cassidy (1 Assistant Planner/Zoning Officer pds 8 4 - cc e.0 October 19 1984 Joe Perrozzi P,O. Box 3696 Kodiak, Alaska 99615 RE: Appeal Fran an Administrative Recision and a Variance Request, Case 84-098, Perrozzi Appeal of Denial Dear Mr Perrozzi: A hearing before the Kodiak City Council, sitting as the Board of Adjusarenc, is scheduled for Thursday, November 8, 1984, at 7:30 p.m., in the Borough Assembly Chanters. Ihis hearing is on your appeal of the Planning and Zoning Commission's August 6. 1984, denial of the above appeal and variance. If there is any change in the scheduled date you ua111 be notified. Sincerely, CITY OF KODIAK MARL[T1A DAME, ma City Clerk Mf7D/ms cc: City Manager City Building Official Borough Clerk Director, Community Development Depara ent Melvin M. Stephens, II, City Attorney Mr. & lks. Tim 11111 POST OFFICE 00/4.1397. IIODIak . ROM 99615 PHONE (9077486-32424 67 mmurEs OF TIM REGULAR CITY COUNCIL MaTIM OF THE GITY OF KODIAK HELD ON-PAVEMBER 20, 1984:t. DRAFT HEEIINC CALLED 1O ORDER Mayor Pugh called the meeting to order at 7:33 p.m. Councilmendsers Brodie, Crowe, Ramaglia, Stephan, and Woodruff were present and constituted a quorum. Council - member Crotty was absent. (Note: Due to the conflict between the Thanksgiving holiday and the regular meeting day, the second November meeting was rescheduled to this date.) PREVIOUS AIINUIPS Councilmenber Crowe MOVED, seconded by CouncibTember Ramaglia, to approve the minutes of the regular November 8 1984 meeting. The roll call vote was unsninnusly favorable. EII. PERSONS TO BE HEARD I a. Planning and Zoning. Commissioner Planning and Zoning Commissioner Hill was present. He stated there were three variance considerations on the P&Z November 21 agenda, all in the Aleutian Homes Subdivision - 1 kitchen addition and 2 porches. He announced the Kodiak Island Borough Assembly's appointment of Dan Janes as the new City representative on the Commission. Ib; Board of Adjustment RE: (rioazl Appeal j 'Acting City Manager Beukers said that upon being interned of Councib®nber Cratty's !absence from this meeting, Fir. Perrozzi requested the hearing on his appeal of the P1'anning and Zoning Commission's August 6 denial of a variance application be again postponed until a full Council could meet as the Board of Adjustment. Borough Community Development Director Freed had requested the Board hear the appeal when she could be present. MCoumcthrcmber Crowe MOVED, seconded by Ccuncilmember Ramaglia to postpone the Board if Adjustment hearing of the Perrozzi appeal to the regular December 27 meeting. I (Following discussion of the relative merits of a one rronth postponement and holding, a special meeting to handle the case the roll call vote was Councilnenber Crowe in (favor and Councilmembers Brodie, Ramaglia, Stephan, and 4bodruff opposed. The notion (failed. iCouicibrember Stephan ROVED, seconded by Councilnenber Ranaglia, to hold a special meeting at noon, Monday, November 26, in the Borough Assembly Chambers to hear the Ferrorzi appeal. The roll call vote was Cnuncllnembers Brodie, Ramaglia, Stephan, and kbodruff in ifavor and Councilmmber Crowe opposed. The motion passed. Change of location RE: Fishery Industrial TeChhology Center With the concurrence of the Council, Mayor Pugh introduced this addition to the agenda. He had been approached by representatives of the University of Alaska Fishery industrial Technology Center Policy Council about the possibility of chang- ing the location of the FITC site on Near Island. Mr. Donald H. Rosenberg, Director, Office of Fisheries, University of Alaska - Fairbanks, said the Policy Council had met that day and discussed various problens with the proposed site on the Trident Basin side of Near Island. The Policy Council had torsed the Trident Basin site and another on the charnel side of the island, following which a decision was made to approach the City about changing the site. The newly proposed site, midway between the bridge and St. Herman Harbor on the charnel side would have more buildable area and fewer problems than the Trident Basin site. Mr. Rosenberg said the University was at the point where a final decision would have to be made. Discussion centered on the history of City project support, the delay in Phase I tine schedule, the University's willingness to commission the required survey and develop the legal description, the need for water and seer, road standards, and the possibility of the Federal government funding a second building. IV. Cauncilcenber Brodie FD`JED, seconded by Councils -ember lbodruff, to direct the City Manager to send the University a letter of intent to donate approximately seven acres for the Fishery Industrial Technology Center; the site to be the requested alternate on the charnel side of Near Island approximately mid -point between the bridge and St. Henan Harbor and lying easterly of the harbor access road; subject to the understanding that the University's final choice of this site with subsequent transfer of title will negate the orginal letter of intent to transfer title to the Trident Basin site. The roll call vote was unanimously favorable. 012 BUSINL:SS a. Resolution Number 54-84 RE: Proposed Simeonoff Street Assessment District Mayor Pugh read Resolution Number 54-84 by title. Acting Manager Beakers said it would form a Street Improvement District for construction of improvements on Simeonoff Street from Armstrong Avenue to the hospital, on Armstrong Avenue tram Baronet Street to Sineonoff Street, on Zentner Street from Armstrong Avenue to Ole Johnson Avenue, on 17th Avenue from Sineonoff Street to the alley between Sinecnoff Street and Rezanof Drive East, and on Chicheaof Street from Bartel Ave- nue to the cul-de-sac. Assessable improvements to be constructed may include asphalt paving, sidewalks, curbs, curb cuts, wheelchair ramps, storm sewers, re- taining walls, driveways, and gutters. A public hearing on the proposed improve- ments was held November 8, 1984, and the Council moved to postpone action on Resolution Number 54-84 until the November 20 meeting or a meeting when four Councilmembers without an interest in the district were present. Mr. Beukers said a revised assessment roll bad been prepared incorporating a number of corrections. He apologized for any inconvenience this nay have caused. Because of the number of interested property owners in the audience, Mayor Pugh closed the regular meeting and reopened the public hearing on the formation of the district. Barbara Large, Block 54, Lot 8, objected to consideration of including the alley behind her property in the assessment district. This would result in three sides being paved. She requested consideration of formation of the district without interest, the same as the Mill Bay, Carolyn, and Wilson Assessment District. Mayor Pugh said that was no longer possible due to a change in applicable code provisions. Firs. Large said the usage. of Simeonoff Street for traffic to the hospital made con- sideration of the percentage to be assessed the sane as the high traffic to the condominiums at the end of larch Street. She also felt the hospital should be assessed for that portion of Sineonoff Street which terminated in its rear parking lot. Dale So hers, Block 7, Lot 1, Allman Lalonde Subdivision, Selig Street, asked con- sideration of the inclusion of Selig Street in the assessmym district. He said chat Selig was the only business zone within East Addition to rennin unpaved. He suggested that sidewalks be constructed only on the east side of Selig Street. Mayor Pugh said the sraff was compiling the necessary information for formation of a separate district which would be heard at the December 13 meeting. Construction of the two districts could be done under the sane contract. There was a short discussion amongst the Council and Mr. Soughers on percentage rates for business property versus residential zones. Kenneth VanDyke, Block 47, Lot 6, asked Council consideration of a twenty percent assessaest. Wally Valen, Block 54, lots 10 and 11, also asked for a twenty percent assessment. Thomas Healy, Block 54, Lot 9 said the culvert installed under Simeonoff Street during the construction of East Addition Park was too small for the volume of water and the overflow was puddling on the street. He objected to paying for correction of the City's ndstake and asked the assessment be set at twenty percent. Al Boudreau, Block 57, Lot 3, also asked for a twenty percent assessment due to the high public use of Simeonoff Street as access to the hospital and the park. There being no further testimony, Mayor Pugh closed the public hearing and reopened Councilme ber Crowe tDVED, seconded by Councilmmber Ramaglia, to. pass and approve Resolution Number 54-84 with the insertion of "n4enty-five" in the blank in the first 'be it further resolved" paragraph. Couneihmmember Ramaglia said he supported the twenty-five percent assessment dun to the current status of State project finds, The State administration had indicated that local municipalities should look to 1007,, local fording of their projects. Assigning a Ewenny -five percent asseser.a,c on this project would illus- trate co the State that Kodiak was willing to pay its fair share. This assessment revenue, in turn, would be utilized to pave other streets. He expressed concern that the width of Simeonoff Street, particularly in the park area, be wide enough to allow parking on both sides without impeding traffic flaw. Councilmembet Woodruff disagreed with the above opinion on the twenty-five percent assessment, stating that the City already had enough funds in reserve to pave the retaining unimproved streets. He felt the park created more traffic than a normal residential street. He said that with the decrease in sales tax revenues, the citizens wanted the City to "tighten its belt". lie preferred a twenty percent assess- n,ritt until and if a standard policy was sec for residential areas at twenty-five percent. Corncibember Woodruff MOVED, seconded by Council ember Stephan, co amend the notion by changing the percentage of the total project costs to be assessed to the benefitting properties from twenty-five to twenty percent. The roll call vote on the enrnd,mnc was Ceuncilmerbers Stephan and Woodruff in favor and Concilmem ors Brodie, Crowe, and Rareglia opposed. The amending motion failed, Cou:cilmember Brodie said the message £sumo the State administration had been clear that preference was to grant each municipality a one-time payment of $10,000,000 for all projects, so it behooved the municipalities to start assuming responsibilty for their own needs. He agreed to the need to establish a standard policy with respect to setting assessment percentages and suggested consideration of a multiplier for the various zoning usage within a district. The roll call vote on the original motion setting a twenty-five percent assessment was Councibmnbers Brodie, Crowe, Ramaglia, and Stephan in favor and'Cornciluember Woodruff opposed. The motion passed. rrFcq The Mayor called a short recess following which the Council contirned the discussion on establishing a standard assessment percentage. The mutter was referred to a worksession, following which the staff would be instructed to prepare an ordinance for Council consideration. b. Expenditure Authorization RE: St. Herman (Dog Bay) Harbor, Phase 2 Acting City Manager Beakers said the City had authorized payments 1 through 7 for Phase 2 construction of Sc. ikia.v, (log Bay) Harbor in 1983 as follows: January 13 - $565,613.60, February 24 - $275,990.79, April 14 - $275,296.69, April 28 - $8,188,76, July 14 - $163,952.64, August 25 - $18,469,38, and September. 8 - $2,656.73. At the October 13, 1983 meeting, payment number 8 was tabled until a detailed report of expenditures was received from the State. Since then the subject was discussed at the regular meetings of October 27, 1983, and February 9 and March 8, 1984. Pro- gress cn the negotiations with the Stane Department of Transportation was also dis- cussed at the following worksessienst October 18 end 25, ,end Nov©mber 7, 1983, and toy 5, August 21, rid November 7, 1984..During this period of negotiation, the Council authorized a good faith payment of $50,000 an October 11, 1984, toward the remaining portion of the City's pledge of $1,700,000. The requested authorization for expenditure of $325,752, represented the negotiated balance of this pledge. Councilmnber Crowe MUM, seconded by Councilmember Ramaglia, to transfer $325,752 from Harbor & Port Development account 38.59.43 CONTINGENCY to Dag Bay Inner Harbor Facilities account 39,60.65 C61'.1'RUCI1OI, and authorize the City Meager co execute final payment of the negotiated settlement for Phase 2 of the St. Herman (Dog Bay) Harbor project. The roll call vote was maniac favorable. V. NEW BUSINESS a. Bid Award RE: Tire Chains Acting Manager Beukers said a bid opening was held in the City Manager's office November 5, for Public tbrks equipment tire chains. Bids were received from AMO Supply - $6,622.25, B & C Supply - $9,139.29, Russian River Services - $9,377.54, Inion Tire & Brake - $9,470.95, and SIAM Auto Supply - $8,540194. The staff recomrcnded award to AMCD Supply as the law bidder. Councilneaber Woodruff MOVED, seconded by Comncilnerrbcr Crowe, to award the bid for tire chains for Public Works equipment to AMCO Supply in the amount of $6,622.25, with funds caning from Public Works - Garage account 16.57.21 SUPPLIES. Following a short discussion on the brand of tire chins involved, the roll call vote was unanimously favorable. b. Bid Award RE: Patrol Gare Mt. Beakers said a bid opening for two Police Department vehicles was held in the City Manager's office November 5, 1984. Bids were received frau Sweeney Motor Company, Inc. - $22,505.16, Kodiak Moors - $22,090.00, and Kodiak Auto Center - $25,882.00. Police Chief Martin recomuuided award to Kodiak Moors as the low bidder, Councilnnmber Crowe MOVED, seconded by Councilrerrber Stephan, to award the bid for two patrol cars to Kodiak Mbtors in the amount of $22,090, with funds to be expended from Police Department - Operations Division account 14,52.64 tWJI1N RY/ ETjUIlleNI. After a short discussion on the budgeting of these vehicles and the Police Depart- ment's five year vehicle needs projection, the roll call vote was unanimously favor- able. c. Professional Services Agreement RE: legal Services The Acting Ciry Manager said the City Council retained the firm of Cole, Hartig, Rhodes, Norman, Mahoney, and Glotz in May of 1975. The recent closure of the firm's Kodiak office necessitated a change if the City was to have a local legal representative, Mr. Melvin M. Stephens, II, recently of the Harclg Rhodes firm and the local representative for the City, had submitted an offer co continue representing the City in a letter dated November 9. Councilmenber Crowe MED, seconded by Councilmmber Woodruff, to retain the services of Melvin M. Stephens, II, as outlined in his November 9, 1984. letter to represent the City of Kodiak as City Attorney, Mayor Pugh stated that any pending legal natters, such as the Sea-Land Preferential Use Agreement, already in the Cole, Hartig, Rhodes, Norman, Mahoney, and Edwards Anchorage office would continue to completion with that firm. The roll call vote was u anbrously favorable. d. Contract for Professional Services RE: lobbyist With the Council's permission, the Mayor moved this item to the end of the agenda. e. Expenditure Authorization RE: Chamber of Commerce Office/Ferry Building Mr. Beukers said the Council authorized the parent of $25,000 of the pledged $50,000 to the Chamber of Commerce on September 13 for the construction deposit on the prefabricated Chamber office/ferry terminal building. The building was carpleted and ready to be shipped from Seattle and the construction .mpany was denandlne final payment. The Chamber was now requesting payment of the final $25,000 to release the contractor's hold. Councilmmber Ramaglia MOVED, seconded by Councilnewnter Crowe, to authorize expenditure of $25,000 to the Chamber of Commerce for the new Chamber office/ferry terminal building; said fiends co the expended from eailding Improvement Fund account 32.85.65 CONSiRUC1ION. Councibmrber Ramaglia said he had never heard of payment before delivery and was concerned about damage in transit. Chamber of Convercc Building Chairman Ashford said the tharober was aware of the possibility of damage during transit and installation and had the structure fully insured for all portions of its transport £run Seattle to placement en the site. her. Ashford said it was 'standard practice to pay off prefabricated structures upon completion of con- struction. Coumcihmrber kbodruff asked what type of plumbing pipe was used for connection to the sewer line. Mr. Ashford said cast iron. The roll call vote was :man+mmu=ly favorable. CITY DaNAGER'S REPORT None. MAYOR'S CEMENTS Appointment Accommodations RE: Alaska Coastal Conmmities Alliance Mayor Pugh announced that there was one seat available for a City representative on the newly -formed Alaska Coastal Communities Alliance. He asked Council con- firmation of his recommendation of either himself or Conmcilnmmber Ramaglia to that position. Councilmmber Stephan MOVED, seconded by Ceunciimsmber kbodruff, to confirm the Mayor's recmnvndation that the Alaska Coastal Communities Alliance appoint either Mayor Pugh or Councilmember Ramaglia to a seat on the board. The roll call vote was unanimously favorable. VIII. COUNCIL CQMNTS Coumcilme,rber Stephan asked the City staff to request action on the traffic signal at the Y intersection of Rezanof Drive and Mill Bay Road. Mayor Pugh said the Department of Transportation was to have done a survey of the traffic flow at that intersection and suggested the Kodiak Island Transportation Study Committee be asked to place the item on its next agenda together with the report of the traffic study. The Clerk was instructed to contact the KITS coordinator and make the arrangements. Councilnrsober Ramaglia asked for a worksession on the proposed width of Sim:ono£f Street. Re was concerned that the traffic flow not be impeded with parking en both sides in the park area. Public Yorks Director Beukers said the engineered with was to be thirty-five feet. Councilmmber Crowe asked Mr. Beakers to check into the ground seepage across the sidewalk on (upper) Mill Bay Road near the intersection with lower Mill Bay Road. Coumcilmember Brodie asked for a copy of the most recent draft of the Kodiak Electric Association/Terror Lake agreement. AUDIENCE CQ.iENIs None. Executive Session RE: Financial and Legal Matters Councilmenber Crowe MOVED, seconded by Councilmember Ramaglia, to hold an execu- tive session on financial and legal matters. The roll call vote was unanimously favorable. RECESS Mayor Pugh recessed the regular meeting into executive session, following which he reconvened the regular meeting for the following action. New Business, Item d - Contract for Professional Services RE: Lobbyist Acting City Manager Herman Beukers said the Council moved to accept Mr. David Gray's proposal to serve as lobbyist for the City of Kodiak during the 1985 legis- lative session at the regular meeting of November 8. The City Manager was in- structed to prepare a professional services contract for approval at this meeting. City Attorney Stephens had prepared two alternate versions, one of which Mayor Pugh had revised after discussion with Mr. Cray. The three versions were before the Council for consideration. Councilmmber Crowe WVEDD, seconded by Councilmember Stephan, to authorize the City Manager to execute the Mayor's draft professional services agreement with Mtr. David Gray for his services as lobbyist for the City of Kodiak during the 1985 Legislative year. The roll call vote was unanimously favorable. Clain Settlement RE: Robert Miles Mayor Pugh said a claim for vehicle damage incurred when a section of road washed away earlier this year had been submitted by Bob Miles. .The bill for repair by lhnion Tire & Brake totaled $278.25. Councilmember Crowe MOVED, seconded by Ceuncilmmiber Stephan, to satisfy Mr. Bob Mile's claim for vehicle damages with the payment of $278.25, the settlement to be charged against Public I.brks - Streets/Snow Removal account 16.56.21 SUPPLIES. The roll call vote was unanimously favorable. IX. AUDIENCE Cu24ENIS X. Dennis Murray requested the section of unpaved arterial access between Rezanof Drive East and Mission Road (Armstrong, Ismailov, and 14th) be paved. Mr. Mrray said it was on the City's 1988 capital projects list, but the need was more immedi- ate. The Council referred the matter to a worksession. ADJOURNMENT The meeting adjourned at 10:20 p.m. ATTEST: CM OF KDDIAK MAYOR 3 / NVIES OF THE SPECIAL CITY COUNCIL E1Ei.TING OF THE CITY OF KODIAK HELD ON NOVEMBER 26, 1984 MEETING CUM) TO ORDELt DRAFT Mayor Pugh called the meeting to order at 12:04 p.m. Councilme:bors Brodie, Cratty, Ramuglia, Stephan, and Woodruff were present and constituted a quorum. Councilner- ber Crowe was absent. PURPCSE OF MEETING Mayor Pugh said the special meeting was scheduled by the City Council at the regular meeting held November 20, for consideration of, and possible action on, the purchase of the existing fish waste reduction plant (Bio -Dry) and, sitting as the Board of Adjustment, hearing and possibly making a decision on Joe Perrozzi's appeal from a decision of the Kodiak Island Borough Planning and Zoning Commission. Executive Session RE: Legal Matters Councih,rl,ber Stephan MOVED, seconded by Concilmenber 4bodruff, for an executive session on legal matters with the Acting City Manager and the City Attorney. The roll call vote was unanimously favorable. Mayor Pugh recessed the special meeting into executive session, following which he reconvened the special meeting with the an attic rent that no action would be taken on the subject of the session at that time. 11I. OLD BUSINESS Purchase of Property RE; Bio -Dry Inc. Acting City Manager Beukers said that on June 27, 1984, the City entered into an agreement to purchase the remaining leasehold interest, together with the leasehold improvements and personal property, owned by Bio -Dry, Inc. at Gibson Cove. The total purchase price was to be the lesser of $178,309.68 or the total remaining obligation of Bio -Dry, Inc. under its SBA -guaranteed loan from the National Bank of Alaska. While all documents needed to close this purchase had been received, the City had not proceeded because Bio -Dry had not cleared governmental liens totaling approximately $16,700, comprising claims by the IRS, Alaska State, and Kodiak Island Borough. A November 15 letter from City Attorney Mel Stephens to Stanley Welsh, attorney for Bio -Dry owner Harry Lenten, requested clearance of the tax liens by depositing $17,500 with an escrow agent. Mr. Welsh responded With a counter offer of $10,000. At this point the staff was requesting Council direction as to what course of action should be followed. Couucilnerber 4bodruff M0VEb, seconded by Councilmmmber Cratty, to authorize the i City staff to proceed with the purchase of the remaining leasehold interest, together with the leasehold improvements and personal property, owned by Bio -Dry, Inc, at Gibson Cove for the purchase price, not to exceed $180,000; said purchase price to be paid directly to the National Bank of Alaska to satisfy the outstanding SBA - guaranteed loan; said purchase price to include a sum to clear governmental claims by the IRS, Alaska State, and Kodiak Island Borough. Following a short discussion, the roll call vote was unaninously favorable. 4BQARD OF ADIU$1IRL4f_,) Raring7R Perrozzi Appeal Mayor Pugh recessed the special meeting and opened the Board of Adjustment. Acting City /'anger Beukers said the Perrozzi appeal was originally scheduled for Novem- ber 8, but was postponed to the meeting of November 20 to allow the entire Council to be present. At the November 20 meeting it was again postponed to this special meeting as Councilmerber Crotty was absent. The Council was sitting as the board of Adjustment to hear an appeal filed by Joe Perrozzi. Nr. Perrozzi was appealing the Planning and Zoning Commission decision of August 6, 1984, denying request for a variance and upholding the July 26, 1984, administrative decision on lots 30 and 32, Block 19, Kodiak Towosite Alaska Subdivision. The hearing would begin with a presentation by Connimity Development Director Linda Freed of the Borough Planning Department. Next, Mt. Perrozzi would present his argument. Only the information available to the Planning and Zoning Commission at the time of its decision could be considered by the Board of Adjustment. After hearing both parties, the Board could affirm or reverse the decision of the Planning and Zoning Commission, in whole or in part, and must give the reasons for ics decision. Mayor Pugh declined to chair [he hearing due to a potential conflict resulting from his earlier actions on this property when he was a merbe of the Planning and Zoning Commission in 1980. He turned the hearing over to Deputy Mayor Ramaglia. Councilmember Brodie excused himself from consideration of the appeal as he was the adjoining property owner, and the outcome of the hearing could result in an increase or decrease in the value of his property. Deputy Mayor Ramaglia said the hearing had been postponed twice because the five Councilm=mbers eligible to consider the case were not present. Councilrember Crowe was absent from this meeting due to conflict with his job. Deputy tlayor Ramaglia asked the appellant, Joe Perrozzi, if he wanted the hearing postponed again. Mr. Ferrozzi said he was satisfied to have it heard by the Concilmenbers present (Cratty, Ramaglia, Stephan, and woodruff). Conmrrtity Development Department Director Linda Freed made the first presentation. In conformance with Kodiak City Code section 17.10.060, Ns. Freed said the nature of the decisim being appealed was a denial of 'Jr Perozzi's request for relief from an dmdnistrative decision. Cn July 30, 1984, :t. Perrozzi appealed an administrative decision that determined the building permit issued August 5, 1983, was null and void because it violated KIBC 17.36.070C. Nt. Perrozzi also requested relief in the fuss' of a variance to allow the continuation of the construction under the original building permit. On August 6, 1984, the Planning and Zoning CoSission held a special meeting to consider this appeal and the request for relief. As a result of that meeting the Commission affirned the administrative decision; denied a request for a variance to allow the continuation of the con- struction per the original plans; and approved a request to permit the construction of a 4;12 ratio pitched roof. Ms. Freed went on to say Mr. Perrozzi was appealing the Planning and Zoning Cam mission's denial of his relief in the form of a variance to continue construction as planned and authorized under the building permit that was determined to be null and void. The pertinent facts produced at the hearing from which the appeal was taken were as follows: 1. Mr. Perrozzi was issued Building Permit 15131 on August 5, 1983; 2. On July 18, 1984, the Kodiak Island Borough Comnnity Development Depart- ment received a complaint about [he concretion bet conducted under said permit; 3. After investigation, the Comnmity Development Dern/Inuit administratively determined that Building Permit 05131 was null and void since it violated KIBC 17.36.0700; and 4. Mr. Perrozzi appealed this administrative decision and the Planning and zoning Commission ruled on the case at a special meeting on August'6, 1984. Ms. Freed went on to say that the applicable legal principles were the conditions required in KIBC 17.66.050 that oust be net before a variance could be granted. The Planning and Zoning Co rdsien felt the application for a variance did not meet two Of the required six conditions. No exceptional physical circumstances or conditions applicable to the property or to its intended use or development existed, and the granting of the variance would prejudice other properties in the vicinity by impairing the view of adjacent homeowners. Mr, Joe Perrozzi stated that all conditions for granting the variance had been met and he disagreed that there would be a detrimental affect on surrounding prop- erty values as he proposed co repair and improve an old building. Ile felt the Connnicy Development Department staff had made unsubstantiated value judgements in retaking recce endations co the Planning and Zoning Commission. He pointed out that only one neighbor objected and notices had been mailed to 40 surrounding property owners. He said the Boruugh Planning staff had been aware of the full circumstances at the tine the building permit was issued. In fact, he had con- ferred with the staff prior to purchasing the property because the property had been in need of substantial alterations. The Planning staff had not indicated the need for any variances, either prior to the purchase or at the time the build- ing permit was issued. Executive Session RE: Legal Matters Following It. Perrozzi's testimony, at the request of a Councibnvnber, Deputy Mayor P.:mmglia recessed the Board of Adjustment hearing and reopened the special meeting. Councilm:mber Stephan MDVEO, seconded by Comcilmember Fbodruf£, to recess into executive session on legal matters. The roll call vote was unanimously favorable. Deputy Mayor Ranaglia recessed the special meeting into executive session following which he reopened the special greeting and reconveved the Board of Adjustment hearing. CounciLn ger tbaodruff ICVED, seconded by ConncilmeMber Cratty, to reverse the Kodiak Island Borough Community Development Department July 26, 1984 administrative decision which declared that Building Permit #5131 was null and void; said reversal based on thefollowing findings of fact and conclusions of law: FTNDINtS OF FACT 1, On or about August 5, 1983, Joe Perrozzi applied for and received a building permit for the construction of an addition to his residence on Rezanof Drive West within the City of Kodiak. The proposed addition in- volved the construction of an additional story onto Nt. Perrozzi's home. Mr. Perrozzi apparently paid a fee of $143.64 at the tine the permit was issued. 2. Prior to its issuance, the building permit was reviewed and approved by William Hodgins, the Zoning Administrator for the Kodiak Island Borough Planning Department, who was responsible for assuring compliance of the building plans accompanying the permit application with the Borough zoning laws. 3. In reliance upon the building permit, Mt. Perrozzi did sone work on the foundation and footings of his hone and replaced certain selected joists. In July of 1984, he also apparently acquired and moved onto his property certain roofing material to be used in connection with his plans to add the additional story. A neighbor, !t. Tim Hill, saw this material and, on July 18, 1984, asked the Borough Planning Department to check into the validity of W. Perrozzi's building permit. 4, Mt. Hill owns a house which is behind Hr. Perrozzi's in the sense that the Perrozzi house is between Mr, Hill's house and Rezanof Drive West and the City boat harbor. Mr. Hill's primary concern was and is that the addition of another story to Nt. Perrozzi's house will block or partially block the view to be had from Mt. Hill's house, a circumstance which he feels will significantly lower the value of his property. 5. The one-story addition for which Mt. Perrozzi obtained the building permit would result in his house having a total height. of 29 feet. This is within the 35 -foot building height limitation mandated by KIBC 17.19.050. It is uncontested, however, that the addition would increase the cubical content of the building. 6. Nt. Perrozzi's house does violate the setback requirements for front, rear, and side yards mandated by KIBC 17.19.040, which is applicable to lots zoned R-2. It is uncontested that Nt. Perrozzi's house is in an R-2 district. Mr, Perrozzi's house is, however, a non -conforming structure within the meaning of KIBC 17.36.040. It is therefore lawful and nay be • continued so long as it remains otherwise lawful. 7. The proposed addition to Mr. Perrozzi's house wild not change the location of the house on the lot mor would it reduce the amount of yard or change the existing yard setbacks associated with that house. 8. On July 20, 1984, a site investigation by Borough staff revealed that Nt, Perrozzi's house was a non -conforming structure because of its failure to meet yard set -back requirements. On July 23, following consultation with the Borough Attorney, Borough staff called Hr. Perrozzi, informed him that his building permit was null and void because it was signed in conflict with 2 v. KIBC 17.03.060, and told him that he would have to obtain a variance from KIBC 17.36.0700 in order to continue lawfully with his building plans. On July 26, a written confirmation of this administrative decision was hand delivered to Nt. Petruzziand he was told that any further construction on his hare was to cease immediately. 9. On both July 27 and July 30, 1984, Nt. Perrozzi was served with com- plaints alleging his failure to comply with the order to stop work an his house. Court proceedings relating to those complaints as well as a civil action filed against Mr. Perrozzi in connection with this dispute are still pending. 10. Sometime prior to July 31, 1984, Nt. Perrozzi filed with the Borough Planning and Zoning Commission a timely appeal frac the administrative decision that his building permit was null and void and. at the same time, he requested a variance from KIBC 17.36.0700. Co August 6, 1984, the Com- mission ammission denied Nt. Perrozzi's appeal from the adndnistrative decision void- ing his building permit and denied his request for a variance insofar as the construction of an additional story to Mt. Perrozzi's house was concerned. It approved a variance which would permit Mt. Perrozzi to construct a pitched roof on his house with a 4:12 pitch ratio. Nt. Perrozzi then filed a timely appeal to the City of Kodiak hoard of Adjustment. CONCWSIONS OF LAW 1. The Borough Planning and Zoning Commission erred in upholding the adminis- trative decision voiding Mr. Perrozzi's building permit. The addition of another story to ht. Perrozzi's house would not violate KIBC 17.36.0700 because that code provision governs only repairs and maintenance to non- conforming structures and Mt. Perrozzi's planned addition did not consti- tute repairs and maintenance. 2. The result of this appeal is controlled by KIBC 17.36.040A, which permits the continuation of non -conforming structures but provides that no such structure may be enlarged or altered in a way which increases its non -conformity." While Mr. Perrozzi proposes to enlarge and alter his house, he does not propose to do so in a way which will increase its non- conformity, as his house is non -conforming only as to yard setbacks and those setbacks will not be changed in any way by the addition of another story to the house 3. To the extent that KIBC 17.36.0700 is inconsistent with 1380 17.36.040A, the latter should control as there is no rational basis for prohibiting a person from increasing the cubical content of a non -conforming structure, when at the sane time, the non -conformity of that structure is not being enlarged or increased. These two code provisions are not necessarily con- flicting, however. Section 17.36.0700 can be read as no more than an airs nition that one may not include within the definition of otherwise allowab repairs and tnaintenance, work which increased the cubical volume of a non- conforming structure. If an increase in cubical volume is involved, then the work should be considered an enlargement or alteration and its lawful- ness is to be judged solely under RISC 17.36.040. 4, Because the administrative decision voiding Nt. Perrozzi's building permit was based upon an erroneous reading of the law, it must be reversed. Mt. Perrozzi may continue with the work authorized by that permit without obtaining a variance from KIBC 17 36 070C It is therefore unnecessary to review the Planning and Zoning Commission's decision denying the variance which Mt. Perrozzi requested. The roll call vote was unanimously favorable. Deputy Mayor Ranaglia closed the Board of Adjustment hearing and reopened the special meeting. CITY MANAGER'S REPORT None. MAYOR'S 03142115 None. VII. COUNCIL COtlEiaS Co,r,ciln k er Brodie read Kodiak City Code chapter 7.32 in its entirety, which speaks to litter and snow removal from sidewalks. He requested a worksession on haw this chapter was to be enforced. Councihnember Cratcy pointed out that Me Cicy's srrmalows occassionally put snow from the streets onto the adjoining sidewalks. Councilnember ibodruEf suggested a display ad be published notifying property owners and tenants of the need to remove debris and snow Fran their ad- joining sidewalks. Councilnember Brodie suggested a notice of deficiency be given rather than a citiation with an accompanying fine. The mutter was to be discussed further at a future worksession. Councilme ber Kamaglia commented that the special meeting packet, with the appeal record printed on white paper was easier to read and he requested chat all future appeal records be so printed. Ib also requested that the Kodiak Island Borough Commnity Development Deparment planing staff be instructed to be more diligent when signing off the zoning section on building perrdcs. TYeatment of non -conform- ing structures should be documented. Be felt that the audience at Planning and Zoning meetings should be informed of their right to submit a written statement to the Board of Adjustment which would then allow those interested persons to be a part of the Board's proceedings. VIII. AUDmCE =HEWS None. IX. ADJODINMENf The meeting adjourned at 2:29 p.m, ATTEST: YOR CITY CLEAR 3 I. II. MINUTES OF THE REGULAR CITY COLTICIL NOTING OF THE CITY 0F_RODIAK _- HELD- ON NOVEMBER 8, -1984 --- MEETING CALLED IO ORDER DRAFT Mayor Pugh called the meeting to order at 7:34 p.m. Councilrrnbers Brodie, Crotty, Crowe, and Ramaglia were present and constituted a quorum. Councilnembers Stephan and Woodruff were absent. PREVIOUS IDPUIES Councilnenber Ramaglia FDVED, seconded by Councilmember Crowe, to approve the minutes of the regular October 25, 1984 meeting. The roll call vote was unanimously favorable. III. PERSON5 TO BE HEARD a. Planning and Zoning Commissioner Commissioner Tim Hill was present and reviewed the actions of the Commission at its October 17 meeting. He said a cubical content variance bad been granted to Joe Perrozzi and the decision had been appealed. Ilr. Hill said the rezone of Blocks 36 and 44, East Addition to Kodiak, was to be considered at the November 21 meeting and was presented to correct a long standing conflict between the zoning code and the official zoning map. b. Public Hearing RE: Proposed Simeonoff Street Improvements Special Assessment District - City Manager Gesko said this hearing was required by Kodiak City Code 13.20.070 to allow input from the owners of property that would be assessed by the proposed Simeonoff Street Improvements Special Assessntim District. The improvements were proposed for Si:eonoff Street from Armstrong Avenue to the hospital, for Armstrong Avenue from Baranof Street to Simeonoff Street, for Zcnther Street from Armstrong Avenue to Ole Johnson Avenue, for 17th Avenue from Simeonoff Street to the alley between Simeonoff Street and Rezanof Drive East, and for Chichenof Street from Bartel Avenue to the cul-de-sac. Assessable improvements could include asphalt paving, sidewalks, curbs, curb cuts, wheelchair ramps, storm sewers, retaining walls, driveways, and gutters. All property owners of record were notified of this hearing by mail October 19 and an invitation to an informational meeting held November 5 was mailed October 26. Mayor Pugh closed the regular meeting and opened the public hearing. Kenneth Van Dyke, Block 47. Lot 6, pointed out an error in computation of the esti- mated assessment on Lots 4 and 5, Block 47. The error was in the square footage figures. Thomas Healey, Block 54, Lot 9, said the proposed width of Simeonoff Street adjacent to the Fast Addition Park was too narrow to allow two directional traffic when vehicles were parked on both sides of the street. Yvonne Boudreau, Block 57, Lot 3, asked the Council to consider a 20 percent assess- ment because of the high general public use of the streets for access to the park and hospital. She pointed out that the City had assessed that percentage to owners in the Mill Bay, Carolyn, and Wilson district and to those in the Baranof district for that very reason. Thomas Healey, Block 54, Lot 9, said his understanding was the project would be constructed in two phases and asked what would happen if the State Legislature did not fund Phase II and whether this would result in a higher percentage being assessed to the property owners in Phase I. Mayor Pugh assured Mr Healey that the assessment percentage assigned by Resolution Number 54-84 would remain the sane for property owners within the Phase I portion of the project regardless of whether the State funded Phase II or not. He said the Council would probably fund the Phase II construction through sales tax or other means if no funds were received from the State. However, completing the project with local funds weld probably lengthen the construction schedule considerably. Dana Reed, Block 57, Lot 4, asked what effect one sidewalk, instead of two, would have on the project cost. Public Yorks Director Beukers said it would result in an approximate $63,000 saving overall, or $30 per lot in a 20 percent assessment district. Wally Valen, Block 54, Lots 10 and 11, said the proposed 14 foot drive entrances were too narrow. Public Yorks Director Beukers said that in the past, the City has accommodated the individual property owners on the width of .driveways. Al Boudreau, Block 57, Lot 3, asked what percentage assessment was to be assigned to this district. Mayor Pugh said that question would be decided by the Council on consideration of Resolution Lumber 54-34 later in the agenda. There being no further testimony, Mayor Pugh closed the public hearing and reopened the regular meeting. He said that R. Dale Soughers, who was unable to attend the meeting, had requested Selig Street be added to the improvement district. Selig Street was in the immediate vicinity and the only business street in the area remaining unpaved. c. Board of Adjustment Hearing RE: Perrozzi Appeal At the request of the appellant, Councilmmber Ramaglia FDV1D, seconded by Council- men:er Crowe, to postpone the hearing to November 20 to allow the full Council to hear the appeal. The roll call vote was unanimously favorable. IV. OLD BUSINESS a. Second Reading and Public Hearing, Ordinance Nimber 739 RE: Mending Kodiak City Code 3.08.040 and Providing tor Exemption of Residential Utilities from Im- position of Sales Tax and Specifying an Effective Date Mayor Pugh read Ordinance Number 739 by title. City Manager Gesko said it was originally approved in the first reading as Ordinance Iaamber 732 on July 26 and failed in the second reading August 9. At the September 13 meeting the Council requested it be resubmitted at the October 25 meeting where it was approved in the first reading. This ordinance would exempt residential heating fuel and electrical service effective July 1, 1985. The effective date was set to allow the reduction in sales tax revenues to be incorporated in the fiscal year 1986 budget. The ordinance also contained definitions for "residential unit" and residential uses". Councilmember Brodie MOVED, seconded by Councilnerber Crowe, to pass and approve Ordinance Naber 739 in the second reading. Mayor Pugh closed the regular meeting, opened and closed the public hearing when no one came forward to testify, and reopened the regular meeting. Councilmmber Brodie said passage of the ordinance represented a reduction of approximately $300,000 revenue to the City and reiterated the effective date would be July 1, 1985 to allow the City to budget the reduction. The roll call vote was unanimously favorable. b. Second Reading and Public Hearing, Ordinance Number 740 RE: Mending Kodiak City Code 14.40.020 to Include the Uniform rare Code Mayor Pugh read Ordinance Number 740 by title. Mr. Gesko said it was'approved in the first reading October 25 and bad been presented in conjunction with the forma- tion of the Building Code Board of Appeals. It would clarify which building codes were subject to action of the Board. Including thaFire Code in those under the October 19, 1984 Joe Perrozzi.- P.O. Box 3696 Kodiak, Alaska 99615 RE: Appeal from an Administrative Decision and a Variance Request, r;Ca§e184-098, . Perrozzi Appeal of Denial Dear Mr. Perrozzi: A hearing before the Kodiak City Council, sitting as the Board of Adjustment, is scheduled for Thursday, November 8, 1984, at 7:30 p.m., in the Borough Assembly Chambers. This hearing is on your appeal of the Planning and Zoning Commission's August 6, 1984, denial of the above appeal and variance. If there is any change in the scheduled date, you will be notified. Sincerely, CITY OF KODIAK a MAKE TA DALKE, CMC City Clerk MHD/ms cc: City Manager City Building Official Borough Clerk Director, Com unity Development Department Melvin M. Stephens, II, City Attorney Mr. & Mrs. Tim Hill POST OFFICE DOA 1397. KODIAK , ALASKA 99615 PHONE (907) 486-3224 October 19 1984 Ms. Marcella Dalke, CMC City Clerk City of Kodiak Box 1397 Kodiak, AK 99615 Kodiak Island Borough P.O. Box 1246 KODIAK, ALASKA 99615•I246 PHONE (907) 496-5736 Re: Appeal from an Administrative Decision and a Variance Request Case 84-098, Perrozzi Appeal of Denial Dear Marcella: The purpose of this letter is to respond in writing to the statement from Mr. Perrozzi on the above -referenced appeal. I would like to clarify some of the issues raised in Mr. Perrozzi's letter. Mr. Perrozzi states that one of the reasons the Kodiak Island Borough Plan- ning and Zoning Commission denied his request for a variance is that; "no exceptional physical circumstances or conditions applicable to this property or its intended use exist." This statement does not adequately detail the criteria used by the Commission to review Mr. Perrozzi's request for relief (variance). Section 17.66.050A of the Borough Code states that all of the criteria for a variance must be met before a variance can be granted, including: "1. That there are exceptional physical circumstances or conditions applicable to the property or its intended use or development which do not generally apply to other properties in the same land use district." One of the Commission's reasons for not granting relief to Mr. Perrozzi in the form of a variance, is because his lot does not have exceptional physical circumstances or conditions that are applicable to his property and are not applicable to other properties in this area of town. Secondly, Mr. Perrozzi states that "contrary to the Commission's findings, most neighbors see the addition as an improvement to the neighborhood." Mr. Perrozzi then offers proof for this "fact" by presenting a petition and letter in support of his request. This documentation is invalid and must not be considered as part of the appeal. Section 17.10.080 of the City Code clearly states: "A. The board of adjustment shall hear appeals solely on the basis of the record established before the lower administrative body, the notice of appeal, briefs submitted prior to the hearing, and arguments at the hearing." Ms. Marcella Dalke, CMC October 19, 1984 Page Two For the information of the Board of Adjustment, the Commission only had three individuals testify or present comments on this case at the public hearing. Of the three individuals that testified, two were opposed to the Commission granting the request for relief (variance) and one was in favor. The other major piece of information taken in to account during the hearing was the Staff report from the Community Development Department. It is in the Staff report that the assertion is made that "the proposal to build an additional story may have dramatic affects on the neighborhood. This old section of town has a panoramic view of the boat harbor and downtown. In fact, it is this view that makes the neighborhood attractive." This assertion was not based on specific information provided by individuals living in the area, it was made based on the recognition that a large part of the value of these generally nonconforming,small, old, and poorly accessed homes, on nonconform- ing and difficult to develop lots is the view. Thank you for the opportunity to respond to Mr. Perrozz on this appeal. Sincerely, COMMUNITY DEVELOPMENT DEPARTMENT Bud Cassidy Assistant Planner Zoning Officer pds s en statement October 5, 1984 $Q ��Kodiak Island Borough %+O - - Kodiak, Alaska t r4v�,�\Ot' V / A, RECEIVED - ' t ;1k :)fr ' OCT — 5 Asia PIA --•------------<\ � 17, 11911111M121c1i1d1c Linda Freed, Director Community Development Department Kodiak Island Borough 710 Mill Bay Road Kodiak, Alaska 99615 RE: Appeal from an Administrative Decision and a Variance Request - CASE 84-098 - Perrozzi Appeal'of Denial Dear Linda: Attached is a copy of the written statement from Mr. Perrozzi on the above appeal. The Department now has fifteen days in which to respond in writing if so desired. Following the expiration of that period, or upon receipt of your. statement, a hearing before the Council acting as the Board of Adjustment will be scheduled. Sincerely, CITY OF KODIAK MARCWA DALKE, CMC City Clerk NBD/nj cc: City Manager Mayor and Council POST OFFICE DOA 1397, KODIAK . ALASKA 99615 PHONE (907) 486-3224 October 4, 1984 Kodiak Island Borough Planning & Zoning Administration Kodiak, Alaska 99615 The Planning & Zoning Administration adopted two findings of fact for their reason for denial of my variance. Both are incorrect and unsubstantiated. Reason #1 was: " No exceptional physical circumstance or cond- itions applicable to this property or its intended use exist." When I bought the house the Zoning Administration told me a vari- ance would not beneeded for the addition of another story. I applied for and received the building permit. The plans for the additional story are on file in the Borough Office and my building permit is conspicuously displayed. Legally, I could build my addition. This should be an adequate extenuating physical cir- cumstance that would allow the variance to be granted. Reason fl2 was: " The granting of the variance would prejudice other properties in the vicinity by impairing the view of adja- cent homeowners." Contrary to the commission findings most neigh- bors see the addition as an improvement to the neighborhood and in good character. 'Adjacent propertyowners have signed a peti- tion stating that they have no objection to the construction of the structure (See•Attachment). No negative responses were recei- ved by Planning & Zoning when notices were sent out informing the neighbors of the special meeting. Residents on the hill have expressed dsires to improve their own properties and enlarge them. They do not want to go throughMy nightmares when they do. I would like to comment on the sole complaintant in the case, Mr. Tim Hill. Mr. Hill has stated that he was unaware of my plans to go up another story. We had serveral conversations about my planned addition. At no time did he mention that the value of his property would be affected. He did say that I should talk to John Cratty ( whoes property is directly behind me ) about what I planned to do. His contention that John Cratty would be upset is unfounded. Mike '.Woodley who has bought John Cratty's house was the first to sigi the pdtitibn. Mr. Hill constructed an addition to his house without obtaining a building permit or a variance. He did this when, if anything, the Borough Code was stricter than it is now. The commission apparently/simply just repremanded him and the matter was dropped. There was no chance for anyneighborhood input into the matter. I would not like tb think that there is one law for Mr. Hill (who is Planning & Zoning Commissioner), and another for the rest of Kodiak. Sincerely r331de_^.'t^ of JIJj?eti on ti 1:.10 001t_nuatio:i of Street s••ned by Joe and Jane Per.:ozzi< Town Site 1?, 110 :.1r: •1t 312 = .z: of A,7:JP_:.::: 0. 9. 1t. 13. 14. 15. 16. hag; kts: -CticS414e,,z; Sheffield Hotels September 16, 1984 To Whom It May Concern: Sheffield Enterprises has just completed an extensive addition and renovation to the Sheffield Hotel in Kodiak. Along with upgrading the outside appear- ance of the hotel building, much landscaping was done to further improve the property's appearance. Not only have these improvements been beneficial to the hotel, but also to the residents on Cope Street. Two new homes are currently under construction on Cope Street, both of which will further improve the Cope Street neighborhood. Joe Perrozzi is attempting to renovate and enlarge his home on Cope Street, an older home in need of remodelling. His efforts are in the same frame and spirit as other residents of Cope Street and will greatly aid in improving the appearance of the entire neighborhood. Very truly yours, Kenneth M. Houston KMH:tah Central Reservations (907) 274-6631 1 - 800 - 544-0970 TELEX: 25-224 September 25, 1984 ae ti> Joe Perrozzi P.O. Box 3696 Kodiak, Alaska 99615 RE: Appeal from an Administrative Decision and a Variance Request - CASE 84-098 - PeLLuzzi Appeal of Denial Dear Mr. Perrozzi: The City of Kodiak has received the Kodiak Island Borough's record on appeal in response to your notice of appeal. It is available in my office for your review. In accordance with City Code 17.10.040 Written Statements, you may file a written statement summarizing the facts and setting forth pertinent points and authorities in support of the allegations contained in your notice of appeal, not more than 15 days from the date of this letter, which shall be October 10, 1984. Copies of the bills for the two verbatim transcripts are enclosed. Please make your check payable to the Kodiak Island Borough and remit the $148.53 directly to me. We would appreciate your timely response and if you have any questions please do not hestitate to contact this office. Sincerely, CITY OF KODIAK MARC'. A DALKE, CMC City Clerk MHD/ms cc: City Manager Mayor and Council / Borough Com®.ztity Developuait Department/ POST OFFICE BOK 1397. KODIAK . ALASKA 99615 PHONE (907) 486-3224 September 24, 1984 Ms. Marcella Dalke, CMC City Clerk City of Kodiak Box 1397 Kodiak, Alaska 99615 Dear Marcella: Kodiak Island Borough P.O. BOX 1246 KODIAK, ALASKA 99615-1246 PHONE (907) 486-5736 Re: Case 84-098. Appeal from an Administrative Decision Perrozzi. Lots 30 and 32, Block 19, Kodiak Townsite Alaska Subdivision. Attached are the verbatim transcript and the approved minutes from the August 15, 1984 Planning and Zoning Commission regular meeting. These items cover the findings of fact for the Perrozzi appeal and complete the appeal record. The cost of the verbatim transcript is as follows: .5 hours @ $11.21/hour = $5.60 Sincerely, Linda L. Freed Director Community Development Department cmk Attachments KODIAK ISLAND BOROUGH Telephones 486-5736 - 486-5737 — Box 1246 KODIAK, ALASKA 99615 September 13, 1984 Ms. Marcella Dalke City Clerk City of Kodiak P. 0. Box 1397 Kodiak, AK 99615 Dear Marcella: Re: CASE 84-098 Appeal from an Administrative Decision - Joe Perrozzi. Lots 30 and 32, Block 19, Kodiak Townsite Alaska Subdivision. Included in the packet on appeal of Case 84-098, are two public hearing notices from Mr.Dwayne McConnell and Mrs. Iris Brooks. Our department received these notices the day subsequent to the decision by the Planning and Zoning on this case. According to KCC 17.10.030(A) (2)(Record on Appeal), the Record on Appeal shall consist of the following: "Copies of all memoranda, exhibits, correspondence, recommen- dations, analysis, maps, drawings, and other documents sub- mitted to the administrative body prior to the decision from which the appeal is taken." As these documents were not considered by the Commission in making a decision on Case 84-098, they should not be included in the document package to be considered by the City Council on this appeal. Should you have any questions, please call. Sincerely, COMMUNITY DEVELOPMENT DEPARTMENT J Bud Cassidy Assistant Planner/Zoning Officer pds cc: Case 84-098 JOEL N. aOLGER MATTHEW D.JAMIN September 7, 1984 Jerome Selby, Manager Kodiak Island Borough 710 Mill Bay Road Kodiak, Alaska 99615 RE: Dear Jerome: .IAMIN & BOLGER ATTORNEYS AT LAW POST OFFICE BOX 193 KODIAK, ALASKA 99615 (907) 486-6061 Kodiak Island BarOUgh Kodiak, Alaska RECEIVED SEP , c \-c: 2 PM 1 1 0141s1G Q Kodiak Island Borough v. Joe Perrozzi Enclosed is a copy of the Preliminary tnjuction entered by Superior Court Judge Madsen on August 30, 1984. Note that the injunction forbids Joe Perrozzi to do any further construction on the addition to his residence. Feel free to write or call if you have any questions con- cerning this matter. Sincerely yours, JAMIN & BOLGER Joel H. Bolger Attorney JHB/vkb Enclosure r - Kodiak Island Do Kodiak Alas': RECEiv m SEP o IN THE SUPERIOR COURT FOR THE STATE OF AI SK00.1 1 12 THIRD JUDICIAL DISTRICT KODIAK ISLAND BOROUGH, ) Plaintiff, ) vs. ) JOE PERROZZI, ) ) Defendant. ) ) No. 3K0-84-363 CIVIL AT KODIAK 11: o r Til Cour; s „,c: ' Cistric; i;,:r6 ct K ... 1 The court has considered the plaintiff's Motion for Pre- liminary Injunction and the testimony, exhibits and arguments submitted in support and in opposition to that motion. A preliminary injunction is appropriate for the following reasons: 1. Plaintiff Kodiak Island Borough has demonstrated that an addition to Defendant Joe Perrozzi's residence may possibly violate local zoning ordinances. This demonstration raises serious and substantial questions going to the merits of this case. 2. Plaintiff Kodiak Island Borough will suffer irrepar- able harm to the public interest in zoning enforcement if construction on this addition is allowed to continue. 3. Defendant Joe Perrozzi can be adequately protected if he is allowed to weatherproof exposed sections of the original roof. p ITIS THEREFORE ORDERED that Joe Perrozzi is enjoined from any further construction on the addition to his residence .I which was the subject of building permit number 5131. This injunction is subject to the following exception: Joe Perrozzi may weatherproof the exposed sections of the original roof of the residence. This preliminary injunction is effective until the Kodiak City Council decides the appeal which Mr. Perrozzi has filed from the Kodiak Island Borough Planning and Zoning Commis- sion decision of August 6, 1984. DONE this -21) day of August, 1984 at Kodiak ska. t actify that ot a copy of the above to each of the fol ieddrmea of roc Kodiak Island Borough v. Joe Perrozzi No. 3K0-84-363 CIVIL "PRELIMINARY INJUNCTION" ROY R. 'SEN Superi. Court Judge KODIAK ISLAND BOROUGH Telephones 486-5736 - 486-5737 — Box 1246 KODIAK, ALASKA 99615 September 5, 1984 Ms. Marcella Dalke, CMC City Clerk City of Kodiak P. 0. Box 1397 Kodiak, Alaska 99615 Dear Marcella: Re:. -Cas -e-840_98 Appeal from an Administrative Decistop_- -Perr6zzi. t:Lots 30--dtd-321BroCk-I9;-KodiakTawnsite Alaska Subdivision. As — As requested by your letter of August 9, 1984 and required by section 17.10.020(b) of the Kodiak City Code, enclosed is the appeal record for Case 84-098. The appeal record is complete with the exception of the Planning and Zoning Commission's approved minutes for their meeting on August 15, 1984 and the verbatim transcript of this meeting. At this meeting the Commission approved findings of fact for(Cd-Se 847-0i98. These minutes will be approved at the September 19, 1984 meeting of the Commission. The charge for the preparation of the verbatim transcript for the August 6, 1984 special meeting of the Planning and Zoning Commis- sion is as follows: 12.75 hours @ $11.21/hour = $142.93 As soon as the minutes and the verbatim of the August 15 meeting are approved and completed we will forward them along with the cost of preparation to your office. Sincerely, COMMUNITY DEVELOPMENT DEPARTMENT Linda L. Freed Director cmk Attachment JAMIN & BOLGER ATTORNEYS AT LAW POST OFFICE BOX 193 KODIAK, ALASKA 99615 (907) 486-6061 August 24, 1984 L. Ben Hancock, Esq. P.O. Box 481 Kodiak, Alaska 99615 A M 411/?Igi . PM KIB v. Perozzi Dear Ben: Kodiak Island Botoil Kodiak, Alaska riECEivgn This letter is to confirm our conversation today. You agreed on behalf of your client that no construction work would be done on the Perozzi residence until Judge Madsen had an opportunity to address the matters involved in the Borough's application for temporary restraining order and preliminary injunction on Monday, August 27. On behalf of the Borough, I appreciate your cooperation in attempting to resolve the matter without further pre- judicing the respective parties' positions. If I have in any way misstated our agreement, please advise me immediately. Best regards. Sincerely yours, JAMIN & BOLGE Matthew D. J cc: Bud Cassidy Mel Stephens, II JAMIN & BOLGER ATTORNEYS AT LAW POST OFFICE BOX 193 KODIAK, ALASKA 99615 (907) 486-6061 JOEL H. BOLGER MATTHEW D. JAMB August 17, 1984 Jerome Selby, Manager Kodiak Island Borough 710 Mill Bay Road Kodiak, Alaska 99615 RE: Kodiak Island Borough v. Joe Perrozzi Dear Jerome: Attached are documents recently filed to initiate an action against Joe Perrozzi to enforce the stop work order issued by Bud Cassidy, the Zoning Officer for the Kodiak Island Borough. Please contact me if you have any questions concerning this matter. Sincerely yours, JAMIN & BOLGER oel H. Bolger Attorney JHB/vkb Enclosures IN THE SUPERIOR COURT FOR THE STATE OF ALASKA THIRD JUDICIAL DISTRICT AT KODIAK KODIAK ISLAND BOROUGH, ) ) Plaintiff, vs. ) vs. ) ) JOE PERROZZI, ) ) Defendant. ) ) . 3K0-84- CIV AFFIDAVIT OF JOEL H. BOLGER STATE OF ALASKA ) ) ss: THIRD JUDICIAL DISTRICT ) JOEL H. BOLGER, being first duly sworn, deposes and says: 1. I am the attorney for the plaintiff in this case. 2. Ben Hancock contacted me on July 27, 1984 on behalf of the defendant in this case. I told Mr. Hancock that a "stop work" order had been issued requiring the defendant to discontinue construction on the addition to his residence. 3. Charles Cassidy of the Kodiak Island Borough contacted me on the morning of July 30, 1984 and told me that Joe Perrozzi had continued construction on his residence. I called Mr. Hancock and told him that the plaintiff would request a tem- porary restraining order at the earliest available opportunity unless Mr. Perrozzi discontinued construction. Mr. Hancock called back later in the morning and stated that Mr. Perrozzi intended to continue construction until the addition to the residence was enclosed and covered with felt. He said that the construction would be completed within the next day or so. 4. We reached an agreement that no construction would continue pending the meeting of the Planning and Zoning Commission MIN & BOLGER r " I AIN BOY 1 on August 6, 1984. On August 9, 1984 I received a request from the manager of the\ Kodiak Island Borough to pursue an injunction tett+ BOLGER L I !in). I3 because construction has been continued. 5. On August 13, 1984 I called Ben Hancock and told him that I would file a request for a temporary restraining order unless we could reach an agreement to discontinue construction until after the City Council decides Mr. Perrozzi's appeal. On August 14, 1984, Charles Cassidy told me that Mr. Perrozzi intend- ed to continue construction by removing the previously existing roof of the residence. I notified Mr. Hancock by telephone at 9:40 A.M. on August 15, 1984 that I was filing an application for a temporary restraining order and that I would notify him immed- iately concerning any court hearings which were set. 630EL H. BO ER SUBSCRIBED AND SWORN to before me this 15th day of August, 1984 at Kodiak, Alaska. Notary Publi in and for Alaska My commission expires: IL -G -4A) 11 jKodiak Island Borough v. Joe Perrozzi No. 3K0-84- CIV "AFFIDAVIT OF JOEL H. BOLGER" Page 2 KODIAK IN THE SUPERIOR COURT FOR THE STATE OF ALASKA THIRD JUDICIAL DISTRICT AT KODIAK ISLAND BOROUGH, ) ) Plaintiff, ) ) vs. ) ) ) ) ) ) i JOE PERROZZI, Defendant. No. 3K0-84- CIV AFFIDAVIT OF CHARLES CASSIDY STATE OF ALASKA 1 THIRD JUDICIAL DISTRICT ) ) ) ss: CHARLES CASSIDY, being first duly sworn, deposes and says: it 1. I am the Zoning Officer for the Kodiak Island ilBorough. 2. The attached Exhibit A is a true and correct copy of Building Permit No. 5131 issued to Joe Perrozzi on August 5, 1983. 3. On July 18, 1984 I received a complaint from Tim Hill 1 who owns a residence near Joe Perrozzi's property at 312 Rezanoff Drive. Mr. Hill complained about the proposed addition to the It residence on Joe Perrozzi's property. 4. On July 20, 1984 I received a call from John Sulli- li permit. I told John that the residence did not conform to ithe Kodiak Island Borough zoning ordinances because it was in :1 liviolation of setback requirements. John Sullivan told me that Joe HPerrozzi was in his office and I asked Joe to come to my office. van, the City of Kodiak Building Inspector, concerning Mr. Perroz- 5. I discussed the possible zoning violation with Joe Perrozzi in my office on July 20, 1984. I asked Mr. Perrozzi not to begin his construction until I could get legal advice on Mon- MirJ anLGER & BOLGER Alh '41 day, July 23, 1984. 6. I also inspected the residence at 312 Rezanoff Drive Ion July 20, 1984. Some foundation work had been done, but there was no construction begun on an additional story above the exist- ing roof line of the residence. I also confirmed that the resi- dence was in violation of setback requirements. The front yard is only ten feet while twenty five feet is required. One side yard r4 has only a 2.5 foot setback where 6.5 feet is required. Mr. Per- . rozzi's residence is closer to his front lot line than any of his neighbors. 7. On July 20, 1984, after my discussions with Joe Per- rozzi, I discovered that a portion of Kodiak Island Borough Code Isecton 17.36.070.C. stated that the "cubical content" of a non- conforming building could not be increased. 8. On July 23, 1984 I confirmed my interpretation of KIBC 17.36.070.C. I called John Sullivan at the City of Kodiak and informed him that the building permit was null and void under KIBC 17.03.060 because it was issued in violation of zoning ordin- ances. I also called Joe Perrozzi at Kodiak Cafe and told him that his building permit was invalid and that a variance would be required before he could continue to build as planned. 9. I inspected the residence again on July 23, 1984. At that time two walls had been framed on an addition to the resi- dence above the existing roofline. 10. On July 26, 1984, I issued an order to Joe Perrozzi ito discontinue construction on the residence. A copy of the order 1 iis attached as Exhibit "B". 1 hand delivered the order to Joe .Perrozzi at 1:40 p.m. at Kodiak Cafe. I inspected the residence lat 1:45 p.m. At that time four walls had been framed and some , roof beams had been added. 11. On July 27, 1984 my office receive complaints from HTim Hill, Gordon Gould and Tony Perez that Perrozzi had continued ucon truction on the residence. !Kodiak Island Borough v. Joe Perrozzi NO. 3K0-84- CIV "AFFIDAVIT OF CHARLES CASSIDY" Page 2 12. I inspected the residence on July 28, 1984 and deter- mined that construction on the residence had continued. !Gordon Evans that construction on the residence had continued on July 27, 1984 and July 28, 1984. I spoke with Joe Perrozzi at Kodiak Cafe and he told me that he intends to continue construc- tion until the addition to the residence was completely enclosed 13. On July 30, 1984.1 confirmed with a carpenter named ' and covered with felt. 14. On August 6, 198i I attended a Special Meeting of the Kodiak Island Borough Planning and Zoning Commission. The Commis- sion affirmed the order I issued to Mr. Perrozzi on July 26, 1984. A copy of the minutes of that meeting is attached as "Exhibit C." ' On August 7, 1984 I issued an additional order to Joe Perrozzi requiring him to discontinue construction. A copy of that letter is attached as "Exhibit D. 15. On August 13, 1984 and August 14, 1984 I talked with Mr. Perrozzi in order to try to reach an agreement to discontinue construction during the period while Perrozzi's case is on appeal to the City Council as Board of Adjustment. I inspected the resi- dence on August 14, 1984 with Mr. Perrozzi. At that time all of I the walls and the roof of the addition had been covered with ply- wood. Mr. Perrozzi would not agree to discontinue construction entirely because he stated that he intended to remove the pre- existing roof of the residence in order to lower the ceiling. 16. The attached "Exhibit E" contains documents from the Planning Department files which have been prepared as a record for Mr. Perrozzi's appeal to the City Council sitting as Board of Adjustment. :Z,/ CHARLES CASSIDY (i) qt-JoLGEn AttAN Kodiak Island Borough v. Joe Perrozzi No. 3K0-84- CIV "AFFIDAVIT OF CHARLES CASSIDY" ' Page 3 .t..tt, A BOLGER 1 t •.; tt: LAW 11 • . • !,0?' 193 )1 ; •,.:_tw A •,-..tti.i15 •—•• 150(11 SUBSCRIBED AND SWORN to before me this day of August, 1984 at Kodiak, Alaska. Nota -Public idand for Alaska My commission expires: dKodiak Island Borough v. Joe Perrozzi No. 3K0-84- CIV -"AFFIDAVIT OF CHARLES CASSIDY" !!Page 4 • tt45,AP., '4.$,,,iiitItttttittt3t;t44,*. 41-4.f,s. , v1 1 t_F5S OF NORM BUILDING PERMIT NO .1 DATE ISSUED REPAIR MOVE VALUATION USE OF BUILDING NE1GHT PLAN CHK. FEE Inc/6.'10P a FOUNDATION PkANE PLASTER Flue; FINAL PLUMBIN SEPTIC TANK FINISH SEWER .. FIXTURES GAS MOTORS FINISH FINAL EXTERIOR, IMTER$OR ST UOS ROOF RAFTERS QEAR$NO WALL 1ftTER?Oil WALLS RE FLUES Xbsereby acknowledge that 1 hay, r rnli this application and stag that tt-• I above is correct and agree t^ cotr i'! 1' with all Citi IOM ING DISI PICT TYPE OF OCCUPANCY •.�r.aNEP OF .TOR1T .,..An: LOT 1,tin,'• tyACN Fai,ld P900/9 •°--' -!'5n1 K 1 ..tr,r -1:31 'f 16. INL • .rw.•+.-«s , . ,i4iQ.. a. 1,+414.4a e. AL,/ Lri. d.'i. W L L• '' .• 26, 1984 Mr. Joe Perrozzi P. 0. Box 3696 f d i.ik, Alaska 99615 N.ar Mr. Perrozzi: 1:6`136,1 A..7f 1r ik Telephones 6-5736 - 486-5737 --- Box 1246 Rt.: Zoning Violation Lots 30 and '2, Block 19, Kodiak Townsitc ICODIAK, ALASKA 99615 This is to inform you that building permit number 5131 issued on August 5, 1983 and void per Section 17.03.060 of Borough Code. The permit is in con!iict with Section 17.36.070C of Borough Code which states: C. Repairs and Maintenance. On any nonconforming structure or an any iuildtng devoted in whole or in part to any nonconforming use, work may be done in any period of twelve consecutive months on ordinary repairs. or on repair or replacement of nonbearing walls, fixtures, wiring or plumbing, provided that the cubical content of the building .3s 11 existed at the time of passage or amendment of the ordinance codified herein shall not be increased. ed on an investigation on July 20, 1984 it was determined that the structure .I. ;:•c 30, Block 19, Kodiak.Townsite is a nonconforming structure because this :11ing fails to meet building setback requirements specified in the Borough Therefore, the construction of an addition onto this structure is not in cnh; nrmanc. with Section 17.36.070C of the Borough Code. As a result, and by authority of Section 17.75.010 of the Borough Code, you are order to ._.discontinue the construction or other preparatory activity leading to an uH Hwfu1 structure." 1,1,: .•,!dlttonal construction onto your structure is not lawful and must cease i�,,:r,liatc1 •leci:;ion :n.iy be appealed to the Planning and Zoning Commission within ten the mailing of this notice by filing a written notice of appeal with the c,,ruaity Development Department stating the reason for the appeal and the i sought Section 17.68.020) . •11d you have any questions, please call. r... ; (•assidy .. ,..:::t ant Planner/Zoning Officer Case file City Building Inspector Complainants EXHIBIT B 4P,A(/ (7/1//,///e(6 () 47 i%E 4za ...V,:Ott sac ♦,. .«..:. r.W...id,:11r4 fat A rXhi'Vri4t1..f:.t� .i(Y+ t75. ,GdJ•.7ii��i� �G•�GA3a l�ecr 1,:....• .:2 it ;:I .:.".«7.4i1:.O' 144; .:.T;.G r: tigriv- CALL TO ORDER KODIAK —_J4D BOROUGH PLANNING AND ZONING COMMISSION SPECIAL MEETING MINUTES AUGUST 6, 1984 The Special Meeting of August 6, 1984 was called to order by Chairman Gregg at 7:32 p.m. in the Borough Assembly Chambers, Kodiak, Alaska. II ROLL CALL Commissioners Present: Ken Gregg, Chairman Virginia Crowe Marlin Knight Tim Hill Dan James Steve Rennell Commissioners Fred Patterson III PUBLIC HEARING was Others Present: Linda Freed, Planning Director Bud Cassidy, Assistant Planner/ Zoning' Officer Cathy Kester, Acting Secretary absent and excused. A) CASE 84-098. An appeal from an administrative decision in accordance with Section 17.68.020 of the Borough Code ordering the discontinuation of construction or other preparatory activity leading to an unlawful use of land or structure (17.75.010 A.3.); and A request for a variance from Section 17.36.070(C) of the Borough Code (Repairs and Maintenance) in order to provide relief from the administrative decision to permit the construction of a third -story addition that would increase the cubical content of a nonconforming structure. Lots 30 and 32, Block 19, Kodiak Townsite Alaska Subdivision. (Joe Perrozzi) Commissioner Hill asked for and was excused from sitting on the Commission due to his conflict of interest in Case 84-098. Staff had no additional information and no public hearing notices had been returned. CHAIRMAN GREGG closed the Special Meeting and opened the Public Hearing. MR JOE PERROZZI, applicant, spoke in favor of the request. Mr. Perrozzi outlined some of the sequence of events of the issue for the Commission. He noted that Mr. Tim Hill had shown him the house in September 1983. After seeing the house, he talked to the Borough Planning Department regarding the requirements for a third -story addition and was advised that as long ae the addition was under the height limitation of 35 feet, he would not need a variance. Mr. Perrozzi then proceeded to buy the house and obtain a building permit to construct the addition. He discussed the addition with several of his neighbors, and although some were unhappy about it, they realized his right to proceed with construction. Mr. Perrozzi felt staff's recommendation was "prejudiced" due to the fact that Commissioner Hill was a major complainant in the issue. MR. TIM HILL, complainant, spoke against the request. At the time Mr. Perrozzi was looking into purchasing the home. Mr. Hill had advised Mr. Perrozzi that he would need a variance before making any additions to the house. He told Mr. Perrozzi that he was a Planning and Zoning Commissioner and because of the variance process and his position on the Commission he would be made aware of any additions to the structure. When Mr. Hill had been told by neighbors that Mr. Perrozzi was going to add another story onto the house, he didn't EXHIBIT C lcf4 4774" .• ....,.s, :: , ^ , SEC,„ . ,..1.,,.•77.. believe it and didn't„bol'"a-`o ask Mr. Perrozzi if there was going to be an addition construe Mr. Hill then asked staff to investi- gate whether.or no4.Mro Pe_ _._+zi had a building permit. After some investigation into the matter, Mr. Bud Cassidy (the zoning officer) contacted Mr. Perrozzi and advised him that there was a problem with the addition. Mr. Hill later saw Mr. Perrozzi and also advised him that another addition would require a variance even though he had been issued the building permit and that someone in the Zoning Office had made a mistake. Construction continued on the addition and Mr. Hill kept the city and borough advised as to what was happening. Mr. Hill then explained to the Commission that the way the house sits on the lot it did not meet most of the setbacks and the characteristics of the surrounding neighborhood. Mr. Hill noted that six homes in the area would have their views damaged by the addition to Mr. Perrozzi's home and the addition would affect the neighboring property values. Mr. Hill informed the Commission that the addition, which now blocked the view of his home, had caused him to lose the sale of his house. He was selling his house because his family was growing, he needed a larger home, and realized that he would not be able to add on to his present home on Cope Street due to its nonconforming status. CHAIRMAN.GREGG asked Mr. Perrozzi if the house was being used as a duplex and what the dimensions were of the two units. Mr. Perrozzi responded that the main level of the duplex was about 860 square feet and the efficiency unit was about 300 square feet. JULIE HILL, adjacent property owner, spoke against granting the request. Ms. Hill felt that part of the reason for a lack of response by the neighbors to the public hearing notice may be that many of the homes are occupied by renters who may feel they don't have a say in the issue because of their rental status. She had realized that the Perrozzi's intended to remodel the house in some manner, but was never informed by the Perrozzi's that they were going to put on a third -story addition. Ms. Hill had expected to hear through the Planning Department if any additions were going to be constructed because she knew the Perrozzi's would need a variance for this kind of construction. Ms. Hill stated that this issue was a "bureaucratic problem” created by the government (in issuing the building permit) and now both parties are suffering because of the error made. There being no further public testimony, CHAIRMAN GREGG closed the Public Hearing and reconvened the Special Meeting. Commissioner Knight commented that it was not necessarily the Planning and Zoning Commission's purpose to legislate "views" as had been recommended by staff as a finding of fact. Some discussion followed by the Commission as to how "view rights" fit in this issue and whether it should be considered as one of the conditions for granting a variance. Other comments on the issue made by the Commission included protection of neighborhood properties from further infringement of nonconforming homes and the extent of improvements that should or could be made to nonconforming structures. CHAIRMAN RENNELL MOVED TO AFFIRM THE ZONING OFFICER'S ADMINISTRATIVE DECISION ordering the discontinuation of construction or other preparatory activity leading to an unlawful structure since building permit #5131 is null and void per Section 17.03.060 of the Borough Code. The motion was seconded and CARRIED by unanimous roll call vote. COMMISSIONER CROWE MOVED TO ADOPT AS FINDINGS OF FACT: 1. Section 17.36.070C, states "Repairs and Maintenance. On any nonconforming structure or on any building devoted in whole or in part to any nonconforming use, work may be done in any period of twelve consecutive months on ordinary repairs, or on repair or replacement of nonbearing walls, fixtures, wiring, or plumbing, provided that the cubical content of the building as Special Meeting EXHIBIT C Page 2 of 4 -2- August 6, 1984 it existed at the tsi, passage or amendment of the ordinance codified herein shall be increased;" 2. Section 17.03.060C of Borough Code states that "any building permit issued in conflict with this title is null and void." The motion was seconded and CARRIED by unanimous roll call vote. Discussion followed by the Commission and Mr. Perrozzi as to working out some type of compromise in the granting of a variance for a new roof. COMMISSIONER RENNELL MOVED TO GRANT A REQUEST FOR A VARIANCE from Section 17.36.070C of the Borough Code (Repairs and Maintenance) in order to provide relief from the administrative decision to permit the construction of a third -story addition that would increase the cubical content of a nonconforming structure. Lots 30 and 32. Block 19, Kodiak Townsite Alaska Subdivision; 307 Cope Street. Thi motion was seconded and FAILED with Commissioners James and Knight voting YES. COMMISSIONER CROWE MOVED ADOPT AS FINDINGS OF FACT: 1. There were no exceptional physical circumstances evident to allow the variance request to be approved. 2. The impairment of view constitutes prejudice to adjoining properties, and other properties in the neighborhood would thus be prejudiced by a granting of a variance for the construction of a third -story addition to the existing structure. The motion was seconded and CARRIED with Commissioner Knight voting NO. COMMISSIONER CROWE MOVED TO GRANT A VARIANCE from Section 17.36.070 to permit the construction of a pitched roof to be added to the roof line of the existing structure of a 4 to 12 roof pitch ratio. The motion was seconded and CARRIED with Commissioner James voting NO. COMMISSIONER CROWE MOVED TO ADOPT AS FINDINGS OF FACT: 1. General maintenance of the building, specifically the roof, requires replacement; not allowing a pitched roof would result in unnecessary hardship; 2) Granting the variance will make an improvement to the existing structure, and it is the purpose of the Planning Commission to encourage improvement of nonconforming lots that need repair; and To provide some relief from the administrative decision by the Planning Department. The motion was seconded. Commissioner Knight asked that the findings of fact be further developed for the next meeting and Commissioner Crowe withdrew her motion. COMMISSIONER KNIGHT MOVED TO TABLE THE FINDINGS OF FACT until the regular Planning and Zoning, Commission meeting on August 15, 1984. The motion was seconded and CARRIED by unanimous voice vote. Staff was then directed to develop findings of fact for the Commission to review and adopt at their next regular meeting. IV AUDIENCE COMMENTS Mr. Perrozzi stated that the pitched roof did not satisfy his needs and that he would appeal the Commissioners' decision to the City Council. DRAFT Special Meeting EXHIBIT C Page 3 of 4 -3- August 6, 1984 • V ADJOURNMENT CHAIRMAN GREGG adjourned the special meeting at 9:05 p.m. ATTEST: By Planning Secretary DATE: et Special Meeting EXHIBIT C Page 4 of 4 KODIAK ISLAND BOROUGH PLANNING AND ZONING COMMISSION By Ken Gregg, Chairman -4- August 6, 1984 ..' arnenri- f Ke,O 101 Telephones 4864736 - 486-5737 — Box 1246 KODIAK, ALASKA 99615 Augusc 7, 1984 Mr. Joe Perrozzi P.0 Box 3696 Kodiak, Alaska 99615 Dear Mr. Perrozzi: RE: CASE 84-098. An appeal from an administrative decision in accordance with with Section 17.68.020 of the Borough Code ordering the discontinuation of construction or other preparatory activity leading to an unlawful use of land or structure (17.75.010 A.3.); and L A request for a variance from Section 17.36.070(C) of the Borough Code (Repairs and Maintenance) in order to provide relief from the administra- tive decisionto permit the construction of a third -story addition that would increase the cubical content of a nonconforming structure. Lots 30 and 32, Block 19, Kodiak Townsite Alaska'Subdivision (Joe Perrozzi) The Planning and Zoning Commission, at their August 6, 1984 special meeting, t.-)ok the following action on the above -referenced case. The Commission: A) Affirmed the zoning officer's administrative decision ordering the dis- continuation of construction or other preparatory activity leading to an unlawful structure since building permit 115131 is null and void, per Section 17.03.060 or the Borough Code. Findings of Fact made by the Commission for this decision include: 1) Whereas Section 17.36.070(C) states..."Repairs and Maintenance. On any nonconforming structure or on any building devoted in whole or in part to any nonconforming use, work may be done in any period of twelve consecutive months on ordinary repairs, or on replacement of nonbearing walls, fixtures, wiring, or plumbing, provided that, the cubical content of the building as it existed at the time of passage or admendment of the ordinance codified herein shall not be increased;" and 2) Section 17.03.060(C) states "Building Permints. Any building per- mit issued in conflict with this title is null and void." 3) Therefore, building permit /15131 is null and void, since it conflicts with Section 17.36.070(C) of the Borough Code. B) The Commission denied a request for a variance from Section 17.36.070(C) of the Borough Code (Repairs and Maintenance) in order to provide relief from the administrative decision to permit construction of a third story addition that would increase the cubical content of a noncon- forming structure. Finding of Facts for this decision include: EXHIBIT D Page 1 of 2 .... %%7IMMs „ 7,> 1) No: optional physical circumstances conditions applicable to to t,,. property or to its intended use or development exist; and 2) The granting of the variance would prejudice other properties in the vicinity by impairing the view of adjacent homeowners. The criteria of Chapter 17.66 of the Borough Code (Variances) must be met in order for the Commission to approve a variance request. C) The Commission approved a variance from Section 17.36.070 (Repairs and Maintenance) to permit the construction of a pitched roof to be added to the roof line of the existing structure with a 4 to 12 pitch ratio. Findings of Fact for this decision will be formalized at the August 15, 15t regular meeting of the Planning and Zoning Commission. The Planning and Zoning Commission's decision becomes final unless an appeal. is made within ten (10) days of the date of the action by filing, with the City Clerk, a written notice of appeal specifying the grounds thereof, (Borough Code, Section 17.68.010(A). Section 17.68.010(C) states: "An appeal from any action or decision of the Commission stays the decision appealed from until there is a final decision on the appeal." Therefore, until a formal appeal is filed with the City Clerk, the decision of the Planning and Zoning Commission to affirm the administrative order to dis- continue the construction or other preparatory activity leading to an unlawful structure is final, and all work must cease, Should you have any questions, please ,call. Sincerely, COMMUNITY DEVELOPMENT DEPARTMENT J Bud Cassidy Assistant Planner/Zoning Officer cc: City of Kodiak Tim Hill CASE 84-098 EXHIBIT D Page 2 of 2 4ZWE,Af,)( August 9, 1984 • Linda Freed, Director Ccumunity Development Department Kodiak Island Borough 710 Mill Bay Road Kodiak, Alaska 99615 RE: Case 84-098. Appeal from an Administrative Decision - Perrozzi Lots 30 and 32, Block 19, Kodiak Townsite Alaska Subdivision Dear Linda: Joe Perrozzi has filed an appeal of the Planning and Zoning Commission's August 6, 1984 affirmation of an administrative decision and denial of a variance request from Borough Code 17.36.060(C). Please prepare the record on appeal as required by Kodiak City Code sub- section 17.10.020(b). Sincerely, CITY OF KODIAK :1ARCELLA DAIKE, CMC City Clerk MHD/nj cc: ickie Miller, CMC Mayor and C,ouncilmembers City Manager' POST OFFICE BOA 1397. KODIAK ALASKA 99615 PHONE (907) 486-3224 EXHIBIT E Page 1 • (;TV77,r,",ftr!:;"7-.•^1---- /41 ct 0 3 ce,m4.4,:„. Ltd) PVA*4-- /,..e4/A-t3 (3 iftft.a} z -f-(4-, a -t. ot-e-ce-14,(4 4i27, gt.eaa: 1/4.1 ef-d-6 14 AA/12(41 tv—A-Ck gc.,kt,aci at.u.4/A-co /7. -c2 (c) BLef-v-19 /V /lezt.alt -e4 w4ezriez)z fru oftezdzei eue_, i„4cee-viee_Y-- ( a a-46 60-tri,t4e rto-Y a-z;a Veuz:014( 6476-A),4 eAA44-- zi6z EXHIBIT E Page 2 • „t '" • August 9, 1984 ms. Linda Freed, Borough Planner Community Development Department Bo:.c 1256 Kc)diak, AK 99615 RE: Perrozzi Building Permit/Construction D,2ar Ms. Freed: During our recent brief discussions, we have lamented the construction by the above -referenced individual, after issuance of a stop work order. Apparently it's common knowledge that M:. Perrozzi now intends to complete the building before the appeal is heard by the City Council. This should be prevented by „illy legal means possible. 1.,?gal counsel for both the City and the Borough have now discussed this matter. While there may be some ambiguity in the code provisions, the only way to determine how a court might interpret it, would be to file an action and find out.... As we discussed yesterday, and as the legal counsel have discussed, Section 17.75.030(B) seems to be the basis on which a temporary restraining order or other appropriate legal action should or could be filed. The City of Kodiak herewith urges the Borough to file the appropriate legal action as soon as possible. Regardless of what may have transpired involving issuance of the permit itself, the .7onstruction should not be allowed once a stop work order has been issued. v,fr-y truly yours, '!TY OF KO IAK Ks. '; I • D ,S:rnuel Gesko, City Manager : 1=CG/keh ic: Jerome Selby, Borough Manager POST OFFICE BOX 1397. KODIAK . ALASKA. 99615 PHONE (907) 486-3224 EXHIBIT E Page 3 • Telephones 486-5736 - 486-5737 — Box 1246 KODIAK, ALASKA 99615 August 7, 1984 Mr. Joe Perrozzi P.0 Box 3696 Kodiak, Alaska 99615 Dear Mr. Perrozzi: CASE 84-098. An appeal from an administrative decision in accordance with with Section 17.68.020 of the Borough Code ordering the discontinuation of construction or other preparatory activity leading to an unlawful use of land or structure (17.75.010 A.3.); and C A request for a variance from Section 17.36.070(C) of the Borough Code (Repairs and Maintenance) in order to provide relief from the administra- tive decision to permit the construction of a third -story addition that would increase the cubical content of a nonconforming structure. Lots 30 and 32, Block 19, Kodiak Townsite Alaska Subdivision (Joe Perrozzi) The Planning and Zoning Commission, at their August 6, 1984 special meeting, took the following action on the above -referenced case. The Commission: A) Affirmed the zoning officer's administrative decision ordering the dis- continuation of construction or other preparatory activity leading to an unlawful structure since building permit #5131 is null and void, per Section 17.03.060 or the Borough Code. Findings of Fact made by the Commission for this decision include: 1) Whereas Section 17.36.070(C) states..."Repairs and Maintenance. On any nonconforming structure or on any building devoted in whole or in part to any nonconforming use, work may be done in any period of twelve consecutive months on ordinary repairs, or on replacement of nonbearing walls, fixtures, wiring, or plumbing, provided that the cubical content of the building as it existed at the time of passage or admendment of the ordinance codified herein shall not be increased;" and 2) Section 17.03.060(C) states "Building Permints. Any building per- mit issued in conflict with this title is null and void." 3) Therefore, building permit #5131 is null and void, since it conflicts with Section 17.36.070(C) of the Borough Code. B) The Commission denied a request for a variance from Section 17.36.070(C) of the Borough Code (Repairs and Maintenance) in order to provide relief from the administrative decision to permit construction of a third story addition that would increase the cubical content of a noncon- forming structure. Finding of Facts for this decision include: air .,• •e• EXHIBIT 8 Page 4 1) ceptional physical circumstan:,_ or conditions applicable to til-Lae property or to its intendeduse or development exist; and 2) The granting of the variance would prejudice other properties in the vicinity by impairing the view of adjacent homeowners. The criteria of Chapter 17.66 of the Borough Code (Variances) must be met in order for the Commission to approve a variance request. C) The Commission approved a variance from Section 17.36.070 (Repairs and Maintenance) to permit the construction of a pitched roof to be added to the roof line of the existing structure with a 4 to 12 pitch ratio. Findings of Fact for this decision will be formalized at the August 15. regular meeting of the Planning and Zoning Commission. The Planning and Zoning Commission's decision becomes final unless an appeal is made within ten (10) days of the date of the action by filing, with the City Clerk, a written notice of appeal specifying the grounds thereof, (Borough Code, Section 17.68.010(A). Section 17.68.010(C) states: "An appeal from any action or decision of the Commission stays the decision appealed from until there is a final decision on the appeal." Therefore, until a formal appeal is filed with the City Clerk, thedecision of the Planning and Zoning Commission to affirm the administrative order to dis- continue the construction or other preparatory activity leading to an unlawful structure is final, and all work must cease. Should you have any questions, please call. Sincerely, COMMUNITY DEVELOPMENT DEPARTMENT Bud Cassidy Assistant Planner/Zoning Officer cc: City of Kodiak Tim Hill CASE 84-098 EXHIBIT E Page 6 K/][)l/kK ISLAND BORQ3r-TcH KODIAK ISLAND BOROUGH PLANNING AND ZONING COMMISSION SPECIAL MEETING AGENDA AUGUST 6, 1984 I. Callto order II. Roll call I1I. Public hearing A) CASE 84-098. An appeal from an administrative decision in accordance with Section 17'68,020 of the Borough Code ordering the discontinuation of construction or other preparatory activity leading to an unlawful use of land or structure (17'75'0]0 &'3')/ and A request for a variance from Section 17'36'070(C) of the Borough Code (Repairs and Maintenance) in order to provide ralieftrom the administrative decision to permit the construction of a third -story addition that would increase the cubical content of a nonconforming atruoture. Lots 30 and 32, Block 19, Kodiak Townsite Alaska Subdivision (Joe 9errozzi). . Audience comments . Adjournment EXHIBIT E Page NoDiAK ISLAND BOR411.19H DATE: TO: FROM: SUBJ: RE: ITEM III (A) MEMORANDUM August 6, 1984 Planning and Zoning CommiSsiou416a- Community Development Department Information for the August 6, 1984 Special Meeting Case 84-098. An appeal from an administrative decision in accordance with Section 17.68.020 of the Borough Code ordering the discontinuance of construction or other preparatory activity leading to an unlawful structure or an unlawful use of land or structure (17.75.010 A.3.); and a request for a variance from Section 17.36.070(C) of the Borough Code (Repairs and Mainten- ance) in order to provide relief from the administrative decision to permit the construction of a third -story addition that would increase the cubical content of a nonconforming structure. Lots 30 and 32, Block 19, Kodiak Townsite Alaska Subdivision; 307 Cope Street. (Joe Perrozzi) '39 public hearing notices were mailed on July 31, 1984. 1. Applicant: Joe Perrozzi, Box 3696, Kodiak, Alaska 99615. Land Owner: Same as applicant. 3. Request: An appeal from an administrative decision in accordance with Section 17.68.020 and a request for a variance from Section 17.36.070C. 4. Purpose: 1) Appeal from an administrative decision in accordance with Section 17.68.020 of the Borough Code ordering the discontinuance of construction or other preparatory activity leading to an unlawful structure of an unlawful use of land or structure (17.75.010 A.3.); and 2) to construct a third -story addition onto an existing two-story nonconforming structure. 5. Existing Zoning.: R2. 6. Zoning History: The 1968 Comprehensive Plan indicates the zoning of this area as R2. In 1977, Case 489, the Planning and Zoning Commis- sion denied a request for a variance to allow the construction of a two-story addition on the east side of the existing building (see map). The reasons for denial include the following: 1. In 1977, a section of the Borough Code prohibited additions to nonconforming structures and prohibited the altering or enlarging of nonconforming structures to add permanence to the structure beyond what was necessary to protect the property's original interest; and EXHIBIT E Page 8 The code also stated that the petitioner must show evidence of his ability and intention to proceed in accordance with submitted plans within a six-month time limit for a variance (these code sections no longer exist). The reasons for denial were extracted from the recommendations of the zoning administrator since no findings of fact were specified by the Planning and Zoning Commission for the denial. No paperwork exists to indicate whether this request for a variance met the criteria then existing for granting a variance. Departmental records show no additional activity. 7. Location: Lot 30 and 32, Block 19, Kodiak Townsite Alaska Subdivision; 310 West Rezanof and 307 Cope Street. 8. Lot Size: Lot 30: 3!135 square feet; Lot 32: 846 square feet. 9. Existing Land Use: Lot 30 contains a accessory building. 10. Surrounding Land Use and Zoning: 11. North: South: East: West: Lot 33, Block Rezanof Drive Lot 31, Block Lot 29, Block duplex and Lot 32 contains an 19, Kodiak Townsite Subd; Zoning -R2; Use -R1 19, Kodiak Townsite Subd; Zoning -R2; Use -R1 19, Kodiak Townsite Subd; Zoning -R2; Use -R1 Comprehensive Plan: The Comprehensive Plan high-density, residential development. indicates these lots for 12. Applicable Regulations: Chapter 17.03.060C, Building Permits,..."Any building permit issued in conflict with this title is null and void." Chapter 17.75.010 A.3., Administrative Enforcement Action..."The Zoning Officer may order....the discontinuance of construction or other preparatory activity leading to an unlawful structure or an unlawful use of land or structure." Chapter 17.36, Existing Nonconforming Uses and Structures, Section 17.36.040 (Nonconforming Structures) states "where a lawful structure exists at the effective date of adoption or amendment to the ordi- nances codified in this title that could not be built under the existing terms of this chapter by reason of restrictions on area, lot ,.overage, height, yards, or other characteristics of the structure or its location on the lot; such structure may be continued so long as it remains otherwise lawful." This section further states "A. No structure may be enlarged or altered in a way which increase its nonconformity." This code section implies that structural changes may be made as long as any nonconformity is not made greater. Section 17.36.040A is inconsistent with Section 17.36.070C which states... "Repairs and Maintenance. On any nonconforming structure or on any building devoted in whole or in part to any nonconforming use, work may be done in any period of twelve consecutive months on ordi- nary repairs, or on repair or replacement of nonbearing walls, -2- EXHIBIT E Page 9 fixtures, wiring, or plumbing, provided that the cubical content of the building as it existed at the time of passage or amendment of the ordinance codified herein shall not be increased." The general interpretation by the borough attorney is that Section 17.36.070C (Repairs and Maintenance) of the Borough Code is not only stricter, but clearer than Section 17.36.040. Therefore, Section 17.36.070C overrides Section 17.36.040. COMMENTS: A. Sequence of Events August 8, 1983. Building permit #5131 was issued and signed off by the City Building Official and the Zoning Administrator for Lots 30 and 32, Block 19, Kodiak Townsite Alaska Subdivision, owned by Mr. Joe Perrozzi. Building plans accompanied the building permit and are on file with the City Building Inspector. Since the time the permit was issued, foundation repairs have been made to the structure. These include a new concrete foundation, footings around most of the rear section of the structure, as well as replacement of selected joists. July 18, 1984. A verbal complaint from Tim Hill asking staff tocheck into the validity of the building permit was stated at the Planning and Zoning Commission meeting on July 18, 1984. July 20, 1984 (Friday). A site investigation by staff accompanied by the property owner demonstrated that the front yard setback (as measured from Rezanof) and side yard setback is not adequate. A recent interpretation by the borough attorney on other nonconforming structures indicated that additions could be constructed as long as the nonconformity of the struc- ture is not increased. In this particular case, the encroachment into the front and side yard setbacks by the third -story addition was not being increased and therefore the addition appeared to be allowable. Since staff recognized the inconsistency between Section 17.36.040A of the Borough Code and Section 17.36.070C, and the borough attorney was out of town, no further information could be obtained until Monday. Mr. Perrozzi was made aware of the conflict in the code, and that it might have some impact on his construction plans. July 23, 1984 (Monday). The borough attorney confirmed that the Repair and Maintenance section (17.36.070C) of the Borough Code was clear and that nonconforming structures are not be to be enlarged to add cubical content. Staff called Joe Perrozzi and informed him that his building permit was null and void because it was signed in conflict with Borough Code Section 17.03.060, and a variance was required before work could continue. John Sullivan called to inform staff that the Building Code allows the party to continue to build up to a point where his property and person are protected from damages. -3- EXHIBIT E Page 10 0161, ly July 24, 1984 (TueScay). A telephone call informed staff that work was continuing on the third -floor addition. Assuming John Sullivan would issue a stop work order, staff did not purse the call. July 25, 1984 (Wednesday). The Planning Director informed the Zoning Officer that a stop work order should be initiated by the Community Develop- ment Department. July 25, 1984 (Wednesday night - P&Z worksession). After discussion of the general parameters of the case, the Planning and Zoning Commission directed staff to place this case on the August agenda. July 26, 1984 (Thursday). A letter stating that all work "must cease immediately" was hand delivered to Mr. Perrozzi. July 27, 1984 (Friday). The Zoning Officer issued a summons hed complaint to Mr. Perrozzi. Mr. Perrozzi stated that work would be discontinued when the roof was completed. He also stated that, according to the City Build- ing Inspector, he could continue until that stage of construction was completed. July 30, 1984 (Monday). Additional complaints about work continuing on the structure were received over the weekend. On Monday, July 30, an addition- al complaint was filed against Mr. Perrozzi for continuing to work after the stop work order was issued. Mr. Perrozzi also appealed the administra- tive decision that his building permit was null and void and the stop work order. He asked for relief by the granting of a variance bythe Planning and Zoning Commission, to allow him to continue his construc4on. Also, a poll of Planning and Zoning Commissioners was conducted to determine the support for a special meeting to deal with this case. Ultimately, it was decided to have a special meeting on Monday, August 6th. July 31, 1984 (Tuesday). At 1:30 p.m. arraignment was held on the summons and complaint issued by the Borough. Mr. Perrozzi, through his attorney, entered a plea of not guilty. Work has discontinued. B. Building Permit Building Permit 115131 was issued August 5, 1983. Although, in many places unclear, the permit does point out that a one-story addition of 864 square feet was to be constructed for a total height of 29 feet. Building plans on file with the permit at the City Building Inspector's office verified that a third -story addition was planned for this structure. C. Nonconforming Buildings As stated previously, a nonconforming building is a structure that could not be built until under the requirements of the present code due to improper lot coverage, height, and most commonly - setbacks. The structure may exist so long as it "remains otherwise lawful." -4- EXHIBIT E Page 11 The intent of re _._3tions dealing with nonconforu�sa6 structures are to eventually eliminate such structures when their economic usefulness ends, and eventually bring any new structure into full compliance with the code. In Kodiak there are many examples of nonconforming structures. Most of the Aleutian Homes, Leite Addition, and residential portions of Kodiak Townsite Alaska subdivisions contain nonconforming structures. This is primarily due to the small area of the lots and lack of regulation or enforcement during construction. The remedy to allow construction onto nonconforming structures is to follow the variance procedure. Control of other development factors can be attained by attaching conditions when granting the variance. Our files have many cases of variance request for additions to nonconforming structures. D. Building Height The complainant that initiated these proceedings was concerned about the added height of the building, the view of the surrounding neighborhood that would be blocked, and the devaluation of property that would occur due to such action. The proposal to build an additional story may have dramatic affects omthe neighborhood. This old section of town has a panoramic view of the boat harbor and downtown. In fact, it is this view that makes the neighborhood attractive. E. Flat Roofs The rain and wet snow in this climate mike flat roofs impractical. Prob- lems develop with leakage as well :As structural integrity due to snow loads. Mr. Perrozzi's roof is not adequate. The purpose for this construc- tion would alleviate leakage problems associated with the existing flat root on the nonconforming structure. RECUMMENDAT I ON : This case consists of two issues: 1. Building permit issued in violation of the Borough Code. Borough Code states that a building permit issued in conflict with the code is null and void. The Commission, in this instance, needs to either affirm or reverse the administrative decision that the building permit is null and void. 2. Request for a variance. The petitioner has asked the Commission to grant a variance that would allow construction to continue according to the original building permit. Staff recommends that a variance to allow construction as proposeddto continue should not be approved since this case does not meet all the conditions of the Borough Code for granting a variance. -5- ..a EXHIBIT E Page 12 A request for a variance for a new structure on Lots 30 and 32 might meet all the code requirements for granting a variance. The process would also allow the Commission to limit the height of the structure by attaching certain conditions. To build as proposed may not meet all the requirements for granting a variance. Other properties would be prejudiced and exceptional physical circumstances beyond the need to replace the existing roof making it functional, do not exist. Staff concludes that a variance that would allow a pitched roof only, to be added to the top of the existing structure, should be granted. This proposal would address the issue of view interruption as well as problems associated with the existing roof. APPROPRIATE MOTION: The Commission should consider the following action: 1. Move to affirm the zoning officer's administrative decision ordering the discontinuation of construction or other preparatory activity leading to an unlawful structure since building permit ##5131 iyt'null and void per Section 17.03.060 of the Borough Code. 2. Move to grant a variance from Section 17.36.070 (Repairs and Mainten- ance) to permit the construction of a pitched roof to be added to the roof line of theimiiting gfucture. The pitch of the roof should be no greater thanApif'roOf Mat is currently under construction allowing eight -foot ceilings on each of the existing two stories, but adding no new story to the structure. Findings of Fact: 1. There are no exceptional physical circumstances evident to allow the variance request to be approved. Other properties in the neighborhood would be prejudiced by granting a variance to construct a third -story addition to the existing structure. -6- .�,. ......4N.:;..•.. ....... �.2xvi�"i�}��.3A64ic2i;sM3';a:a�utf EXHIBIT E Page 13 JAMIN 8c BOLGER ATTORNEYS AT LAW POST OFFICE BOX 193 KODIAK. ALASKA 99615 (907)488-6061 M4Q)221141111M TO: Linda Freed Kodiak Island Borough FROM: Joel Bolger JAMIN & BOLG RE: Kodiak Island Borough v. Joe Perrozzi ( - / ni -- r• c I - • cl .,:i. ,.. \ (N.„. e; • / \*... --• ....., / • -, 4". ---_z.:--> DATE: August 6, 1984 I promised to send a memo concerning relevant considera- tions for the Planning and Zoning Commission in its meeting to consider the appeal filed by Joe Perrozzi concerning administra- tive enforcement action concerning an addition to his residence on Rezanof Drive. Bud Cassidy as Zoning Officer of the Kodiak Island Borough issued an order under KIBC 17.75.010.a.3 which provides as fol- Iows: 17.75.010. Administrative enforcement action. A. The zoning officer may order. 3. The discontinuation of construction or other pre- , patory activity leading to an unlawful structure or an unlawful use of a land or structure.... The relevant considerations on a variance application are listed quite clearly at KIBC 17.66.050. The procedure on appeal is listed at KIBC 17.68.020. Rele- Vunt. portions of this ordinance are set forth as follows: C. Public hearing. The Planning commission shall hold a public hearing on each appeal. At the hear- ing, the commission shall review the appeal record and hear evidence and arguments presented by persons interested in the appeal. D. Decision. The Plan- ning commission shall either affirm or reverse the r EXHIBIT E Page 14 MEMORANDUM TO: Linda Freed, KIB PE: Kodiak Island Borough v. Joe Perrozzi DATE: August 6, 1984 Page 2 zoning officer's decision in whole or in part. E. Findings. Every decision of the Planning Commission on an appeal shall be based upon findings and conclu- sions adopted by the commission. The findings must be reasonably specific so as to provide the commun- ity, and where appropriate, the reviewing authorities, a clear and precise understanding of the reason for the decision. F. Stay. An appeal from the deci- sion of the zoning officer stays the decision appealed from until there is a final decision on the appeal. Outside of the general zoning questions which come up on an ai.peal of this nature, I assume that Joe Perrozzi will bring up his reliance on a previously issued building permit. The rele- vant factual determinations to decide whether Perrozzi should be alicwed to rely on the previously issued building permit were Lecently outlined by the Alaska Supreme Court as follows: 1. Did the property owner receive a permit which was be-ond the power of the administrative officer to grant? 2. Did the land owner detrimentally rely on the permit? 3. Has the government attempted to revoke the permit and enfc)rce the appropriate zoning ordinance? 4. Should the construction be allowed to continue in the Interest of justice? Relevant to the final question are the i'uLposes of the zoning ordinances in the case, health and safety -0c1(2s, and the character of the present structures in the area. These factors should be taken into consideration in the 1'inning Commission's decision on whether or not to affirm the ,nfnrcement action. Feel free to call if you have any questions concerning this mr_11,o. JHB/vkb EXHIBIT E Page 15 : i134,1,414:aith433'3C44'ki...,13,' 3,3k 3 3i le 41)444 3'4 ' i,:.:,01;4ititsig'.rii; Aarikk — EXHIBIT E Page 16 July 26, 1984 Mr. Joe Perrozzi . O. Box 3696 Fodiak, Alaska 99615 Dear Mr. Perrozzi: BOROUGI, Telephones 486-5736 - 486-5737 — Box 1246 KODIAK, ALASKA 99615 Re: Zoning Violation Lots 30 and 32, Block 19, Kodiak Townsite This is to inform you that building permit number 5131 issued on August 5, 1983 is null and void per Section 17.03.060 of Borough Code. The permit is in conflict with Section 17.36.070C of Borough Code which states: C. Repairs and Maintenance. On any nonconforming structure or on any building devoted in whole or in part to any nonconforming use, work may be done in any period of twelve consecutive months on ordinary repairs, or on repair or replacement of nonbearing walls, fixtures, wiring or plumbing, provided that the cubical content of the building as it existed at the time of passage or amendment of the ordinance codified herein shall not be increased. i,ased on an investigation on July 20, 1984 it was determined. that the structure a lot 30, Block 19, Kodiak Townsite is a nonconforming structure because this ling fails to meet building setback requirements specified in the Borough Therefore, the construction of an addition onto this structure is not in ...r:ormance with Section 17.36.070C of the Borough Code. As a result, and by nutheritv of Section 17.75.010 of the Borough Code, you are order to ...discontinue the construction or other preparatory activity leading to an structure."' additional construction onto your structure is not lawful and must cease decision may be appealed to the Planning and Zoning Commission within ten of the mailing of this notice by filing a written notice of appeal with the initv Development Department stating the reason for the appeal and the Ht!t. sought (Section 17.68.020). you have any questions, please call. sincerely,' ./-i• • •ri zik/ Bud Cassidy .",i.stant Planner/Zoning Officer Case file City Building Inspector Complainants 6,7etec( --014 h((ozz Z) /4h EXHIBIT E Page 17 (DISPLAY AD) KODIAK ISLAND BOROUGH PLANNING AND ZONING COMMISSION SPECIAL MEETING The Planning and Zoning Commission will conduct a special meeting on Monday, August 6, 1984 at 7:30 p.m. in the Borough Assembly Chambers, There will be one item on the agenda. An appeal from an administrative decision in accordance with Section 17'68.020 of the Borough Code ordering the discontinuation of construction or other preparatory activity leading to an unlawful structure or an unlawful use of land or structure (17,75,010 A.3.); and A request for a variance from Section 17.36.070(C) of the Borough Code (Repairs and Maintenance) in order to provide relief from the administrative decision to permit the construction of a third -story addition that would increase the cubical content of a nonconforming structure. Lots 30 and 32, Blmek 19, Kodiak Townsite Alaska Subdivision (Joe Perrozzi). Lor more information contact the Community Development Department co, 486-5736' PUBLISH: Kodiak Mirror: August 1, 3 and 6, 1984 Kadiak Times: August 2, 1984 EXHIBIT E Page 18 EXHIBIT E Page 19 N 111 July 31, 1984 ATTORNEYS AT LAW POST OFFICE BOX 193 KODIAK. ALASKA 99615 - " Linda Freed Kodiak Island Borough P.O. Box 1426 Kodiak, Alaska 99615 Dear Linda: 1907)466-6061 Re: Port Lions Zoning Problem This letter modifies the opinion which I gave you in my June 6, 1984 letter concerning the non -conforming use regulations and their effect on the parking space requirements for the enlargement of a non -conforming apartment building. Recently on another problem, Bud Cassidy brought to my attention KIDC 17.36.070C which provides as follows: C. Repairs and Maintenance. On any non -conform- ing structure or on any building devoted in whole or in part to any non -conforming use, work may be done in any period of 12 consecu- tive months on ordinary repairs, or on repair or replacement of non-bearing walls, fixtures, wiring or plumbing, provided that the cubicle content of the building as it existed at the time of passage or amendment of the ordinance codified herein shall not be increased. This provision should be read together with the gen- "ral restriction on the enlargement of the non -conforming structure: 17.36.040. Non -Conforming structures....a. No such structure may be enlarged or altered in a way which increases its non -conformity... Bince that the Port Lions apartment building does not c-omply with the off-street parking requirements in KIBC 17.57.020 which fits into the definition of the non- .-nnforming structure. KIBC 17.36.070.0 clearly states 'EXHIBIT E Page 20 .`, KODIAK ISLAND BOROUGH Community Development Department 710 Mill Bay Road Kodiak, Alaska 99615 PUBLIC HEARING NOTICE ',0iCE DATE: July 31, 1984 CASE NUMBER: 84-098 Anplication for an appeal from an administrative decision and a variance was !Lied with the Kodiak Island Borough Community Development Department by: JOE PERROZZI Me application requests an appeal from an administrative decision in accordance Section 17.68.020 of the Borough Code ordering the discontinuance of cynsrruction or other preparatory activity leading to an unlawful structure or an unlawful use of land or structure (17.75.010 A.3.); and a request for a variance from Section 17.36.070(C) of the Borough Code (Repairs and Maintenance) in order to provide relief from the administrative decision to permit the nstruction of a third—story addition that would increase the cubical content ,)f a nonconforming structure. Lots 30 and 32, Block 19, Kodiak Townsite Alaska -,,hdivision; 307 Cope Street. The Planning and Zoning Commission will hold,a PUBLIC HEARING on this request their special meeting at 7:30 p.m. on Monday, August 6, 1984, in the Borough A.i.4embly Chambers, 710 Mill Bay Road, Kodiak, Alaska. This meeting is open to th.., public. You are being notified because you are a property owner in the area the request. This is the only scheduled PUBLIC'HEARING on the request at s rime, and you are invited to appear before the Commission to express your in!on. you cannot attend this PUBLIC HEARING and wish to comment on the request, :ill in the bottom of this notice and return it to the Community Development ..eparnent, 710 Mill Bay Road, Kodiak, Alaska, 99615. Your returned comment -;oiid be received PRIOR TO THE SCHEDULED MEETING DATE. iciuity map showing the property involved is included on the back of this if you have any questions on this matter, please feel free to call our wficer at 486-5736, extension 258. NAME: ADDRESS: df! PI4OPERTY DESCRIPTION: EN EXHIBIT E Page 21 ..;r4rtitl KODIAK TOWNSITE. US SURVEY 444 Tr G / 71 41k. 43s4c, /be..1 ,41/440 %tel'ex.k EXHIBIT E Page 23 KODIAK ISLAND BOROUGH Coumuunity Development Departm=.., 710 Mill Bay Road Kodiak, Alaska 99615 PUBLIC HEARING NOTICE `:;..ICE DATE: July 31, 1984 CASE NUMBER: 84-098 An application for an appeal from an administrative decision and a variance was ::'cd with the Kodiak Island Borough Community Development Department by: JOE PERROZZI the application requests an appeal from an administrative decision in accordance with Section 17.68.020 of the Borough Code ordering the discontinuance of construction or other preparatory activity leading to an unlawful structure or an unlawful use of land or structure (17.75.010 A.3.); and a request for a variance from Section 17.36.070(C) of the Borough Code (Repairs and Maintenance) in order to provide relief from the administrative decision to permit the construction of a third -story addition that would increase the cubical content of a nonconforming structure. Lots 30 and 32, Block 19, Kodiak Townsite Alaska Subdivision; 307 Cope Street. The Planning and Zoning Commission will hold a PUBLIC HEARING on this request their special meeting at 7:30 p.m. on Monday, August 6, 1984, in the Borough Assembly Chambers, 710 Mill Bay Road, Kodiak, Alaska. This meeting is open to the public. You are being notified because you are a property owner in the area �f the request. This is the only scheduled PUBLIC HEARING on the request at this time, and you are invited to appear before the Commission to express your pinion. If you cannot attend this PUBLIC HEARING and wish to comment on the request, fill in the bottom of this notice and return it to the Community Development Department, 710 Mill Bay Road, Kodiak, Alaska, 99615. Your returned comment should be received PRIOR TO THE SCHEDULED MEETING DATE. :1 vicinity map showing the property involved is included on the back of this form. If you have any questions on this matter, please feel free to call our ?ening Officer at 486-5736, extension /258. t i t: ti AME : 144144 w. -� �`-9 h � l / ADDRESS: 3 5-4-1ALV- yorp PROPERTY DESCRIPTION: L 1 .3 3 `f TS: I r CA-?-cR dr? -e. cvl o�ac C ,E CP -Q-4-4 EXHIBIT E Page 24 KODIAK ISLAND BOROUGH Community Development Department 710 Mill Bay Road Kodiak, Alaska 99615 PUBLIC HEARING NOTICE NOTICE DATE: July 31, 1984 ... a. WAV NECEIvYED AUG - $ PM 7 u0 i101111121111`11rl9 CASE NUMBER: 84-098 An application for an appeal from an administrative decision and a variance was iied with the Kodiak Island Borough Community Development Department by: JOE PERROZZI The application requests an appeal from an administrative decision in accordance with Section 17.68.020 of the Borough Code ordering the discontinuance of construction or other preparatory activity leading to an unlawful structure or :an unlawful use of land or structure (17.75.010 A.3.); and a request for a variance from Section 17.36.070(C) of the Borough Code (Repairs and Maintenance) in order to provide relief from the administrative decision to permit the construction of a third -story addition that would increase the cubical content of a nonconforming structure. Lots 30 and 32, Block 19, Kodiak Townsite Alaska Subdivision; 307 Cope Street. The Planning and Zoning Commission will hold a PUBLIC HEARING on this request at their special meeting at 7:30 p.m. on Monday, August 6, 1984, in the Borough Assembly Chambers, 710 Mill Bay Road, Kodiak, Alaska. This meeting is open to the public. You are being notified because you are a property owner in the area of the request. This is the only scheduled PUBLIC HEARING on the request at this time, and you are invited to appear before the Commission to express your opinion. if you cannot attend this PUBLIC HEARING and wish to comment on the request, fill in the bottom of this notice and return it to the Community Development Department, 710 Mill Bay Road, Kodiak, Alaska, 99615. Your returned comment should be received PRIOR TO THE SCHEDULED MEETING DATE. vicinity map showing the property involved is included on the back of this form. If you have any questions on this matter, please feel free to call our ;zoning Officer at 486-5736, extension 258. ',','!':t NAME: T f /S rY)- £ R-oo k, ADDRESS: P 0_ i;oX ,k2/1 4/a4j fl166/5 'i omi: PROPERTY DESCRIPTION: pC,\Q C aU f y 611-Dek 111 c OMH EN T S : e5 ep i► -1 /94 , c. % k L ¢ < 41 iz 13 C jz oo . (> / zY rrle,c,r ¶ S�i�aA lie L2►A,c�,�,4To,�Zc1 row .4 `L Ur . Z. (� Y I7 , J-9 L' G �-- ' 5 , A ,L.'7 - JA, rU of Tv 6 ; ,2,;: la 41,e41/112,PmrQTS AU -D %UaIL) Kop,rQ<,TY JL T a r4 c l 7 1 C? F rrZrj BTU RSP S /-/ c T S 7`C A-, 7 S j9 L' D No it, cD3l- %-0 R ill A-+ • EXHIBIT E.Page 25 KODIAK July 26, 1984 Mr. Joe Perrozzi P. 0. Box 3696 r;:pliak, Alaska 99615 pe.ir Mr. Perrozzi: Telephones 486-5736 - 486-5737 — Box 1246 KODIAK, ALASKA 99615 P.: Zoning Violation Lots 30 and 32, Block 19, Kodiak Townsite This is to inform you that building permit number 5131 issued on August 5, 1983 is null and void per Section 17.03.060 of Borough Code. The permit is in .onflict with Section 17.36.070C of Borough Code which states: C. Repairs and Maintenance. On any nonconforming structure or on any building devoted in whole or in part to any nonconforming use, work may be done in any period of twelve consecutive months on ordinary repairs, or on repair or replacement of nonbearing walls, fixtures, wiring or plumbing, provided that the cubical content of the building as it existed at the time of passage or amendment of the ordinance codified herein shall not be increased. !iosed on an investigation on July 20, 1984 it was determined that the structure cn Lot 30, Block 19, Kodiak Townsite is a nonconforming structure because this dwelling fails to meet building setback requirements specified in the Borough ,c -de. Therefore, the construction of an addition onto this structure is not in c(nIformance with Section 17.36.070C of the Borough Code. As a result, and by authority of Section 17.75.010 of the Borough Code, you are order to ...discontinue the construction or other preparatory activity leading to an Anlawful structure." • additional construction onto your structure is not lawful and must cease immediately. decision may be appealed to the Planning and Zoning Commission within ten Jlvs of the mailing of this notice by filing a written notice of appeal with the • munity Development Department stating the reason for the appeal and the • ief sought (Section 17.68.020). :hu1d you have any questions, please call. Sincerely, v Bud Cassidy Assistant Planner/Zoning Officer C Case file City Building Inspector Complainants EXHIBIT E Page 26 rn'3 o Pt/Lt./ye"; fluI -4i X I p- -131 1 1 if \LcZt Lxh --4017atttl EXHIBIT E Page 27 EXHIBIT E Page 28 • r EXHIBIT E Page 29 • • ::,;;;.f;..ifii....16.1b::; • ..4•• ?"- 5. EXHIBIT E 'Page 3n Ai I 4 f al.isa,el • 4':w4:7,171W-t-irwaw;;;M".4, EXHIBIT E Page 31 PY. 1 EXHIBIT E Page 32 - 410 : MIN & BOLGER TORNEYS Al LAW T OFFICE BOX 193 IAK, ALASKA 99615 (907) 486.6061 IN THE SUPERIOR COURT FOR THE STATE OF ALASKA THIRD JUDICIAL DISTRICT AT KODIAK KODIAK ISLAND BOROUGH, ) ) Plaintiff, ) ) vs. ) ) JOE PERROZZI, ) ) Defendant. ) ) No. 3K0 -84 - 36-3 CIV riLII) IN Alaska Trial Court Third Judicial District at Kodiak By. AUG 1 61984 Clerk of the Trial Cour'. DEPUTY TEMPORARY RESTRAINING ORDER This court has considered the Motion for Temporary Restraining Order filed by the Kodiak Island Borough. Joe Perrozzi, through his attorney, L. Ben Hancock, has been advised of the Motion for Temporary Restraining Order, effirel- IT IS THEREFORE ORDERED that JOE PERROZZI, his agents and employees are hereby restrained and enjoined from proceeding with construction on the residence located at Lot 30, Block 19, - Kodiak Townsite until August 27, 1984 at 1:30 P.M.; subject to the condition that this Order will be dissolved if the Kodiak City Council does not decide Defendant's Zoning Appeal on or before August 24, 1984 at 12:00 noon. DONE this g day of August, 19j4 at Kodiak, Alaska. Approved as to form: 1 certify that on a copy of the abo e as mailed to at each of the oUowi tkie of reco theiraddress Deputy Glcr& PH MOODY Superior Coult L. BEN HANCOCK Kodiak Island Borough Kodiak, Alaska RECEIVED AUG 2 0 1984 AM P M IN THE. SUPERIOR COURT FOR THE STATE OF ALASKA THIRD JUDICIAL DISTRICT AT KODIAK KODIAK ISLAND BOROUGH, ) ) Plaintiff, ) ) vs. ) ) JOE PERROZZI, ) ) By Defendant. ) ) No. 3K0-84— j4;:r CIV TEMPORARY RESTRAINING ORDER This court has considered the Motion for Temporary Restraining Order filed by the Kodiak Island Borough. Joe Perrozzi, through his attorney, L. Ben Hancock, has been advised of the Motion for Temporary Restraining Order, wid- r iLtu IN Alaska Trial Court Third Judicial District at Kodiak hilG 1 61984 Clerk of the Trial CniP.'• DEPUTv lotion. IT IS THEREFORE ORDERED that JOE PERROZZI, his agents and employees are hereby restrained and enjoined from proceeding with construction on the residence located at Lot 30, Block 19, Kodiak Townsite until August 27, 1984 at 1:30 P.M.; subject to the condition that this Order will be dissolved if the Kodiak City Council does not decide Defendant's Zoning Appeal on or before August 24, 1984 at 12:00 noon. DONE this g day of August, 19 4 at Kodiak, Alaska. Approved as to form: 1 certify that on a copy of the abo as mailed to MIN & BOLGER at the' addxess each of the FORNEYS AT LAW T OFFICE BOX 193 of reco d: AK. ALASKA 99615 (907) 486 6061 eputy PH MOODY Superior Cou ge L. BEN HANCOCK at BOLGER I W A.0•• 99olt, IN THE SUPERIOR COURT FOR THE STATE OF ALASKA THIRD JUDICIAL DISTRICT AT KODIAK KODIAK ISLAND BOROUGH, ) ) Plaintiff, ) ) vs. ) ) JOE PERROZZI, ) ) Defendant. ) ) No. 3K0-84- CIV TEELEMARXREBMIDUNCER Based upon •the Motion for Temporary Restraining Order, Affidavits and other Exhibits filed in support it appears that JOE PERROZZI intends to continue construction on a residence located at Lot 30, Block 19, Kodiak Townsite, in violation of an order to discontinue construction issued by the Kodiak Island Borough Zon- ing -Officer on July 26, 1984. An injuction is authorized to enforce this order under Kodiak Island Borough Code 17.75.030.C. The Kodiak Island Borough Code is in danger of irreparable loss of this enforcement remedy if construction is allowed to continue. Joe Perrozzi, through his attorney, L. Ben Hancock, has been advised of the Complaint and Motion for Temporary Restraining Order by telephone and has been given an opportunity to respondto the plaintiff's Motion. IT IS THEREFORE ORDERED that JOE PERROZZI and his agents, employees and attorney are hereby restrained and enjoined for a period of ten days from proceeding with construction on the resi- dence- located at Lot 30, Block 19, Kodiak Townsite. DONE this day of August, 1984 at Kodiak, Alaska. SUPERIOR COURT JUDGE .MIN BOLGER IORNEY5 AT LAW SI orncE BOX 193 )IAK, ALASKA 99615 (90:1 455 606 1 IN THE SUPERIOR COURT FOR THE STATE OF ALASKA THIRD JUDICIAL DISTRICT AT KODIAK KODIAK ISLAND BOROUGH, ) ) Plaintiff, ) ) vs. ) ) JOE PERROZZI, ) ) Defendant. ) ) By. FILED IN Third Judicial District at Kodak e, 1984 Clerk of the trial Courts DEPUTY No. 3K0-84-50 CI ORDER FOR HEARING ON SHORTENED TIME Upon the motion of the plaintiff, IT IS HEREBY ORDERED that a hearing on plaintiff's Motion For Orde Shortening Time is scheduled for on /67, 1984 before the Honorable DATED this Kodiak, Alaska. I certify that on , 1.1 (24' a copy of the above was mailed to each of the following, at their addresses of ricord day of S9PEROR 4-:1!yet ) Plat ,;iff,) ), Defendant.) £.+ti(. dumber ,51& - 1 - 7(, 3 n..� of Action /-/G17/ Pltf •'s llttorne o/,, Def.'s Attorneys c). )This request is o setting (no other other filings nec )This request is for which I intend to place motion, notice, or other to the Court. a Counsel/ i-nt-i##VDefenaat in the above •.,p: ioncd ease, -hereby request a time on the Court's calendar for the of z7. 2' necessary for this matter: •�� -ho r-sim i nu tes . requested for this matter: X %` 'ver/ eae of Request: L4',/-4 ./ / W SignAture of Pdrty Making Request *...•..t****1*********************1**********t**************************t IN THE TRIAL COURTS FOR THE STATE OF AL THIRD JUDICIAL DISTRICT AT KODIAK he above request for Calendar Setting A is DENIED because )The following date inclusion in a motion, the above request The above captioned 1 endar as follows: 1.ef ore the Honorable fur the purpose of and time is given for the express purpose of notice or other filing to the Court as indicated in a.m./p.m. the day of , 198 . case is hereby set on he• j�,—`' day of udge 7l/ Kodiak Trial Cou. t • 198, DATE SIGNED: phv yy I 1 certify that on 3 copy of the above w.s )mailed to each of the f.,llowing at theiraddresses •,f record, or ( G aced in .Inpropriate message slot in ,:lerk'sOf idiak. ce, Ko 11.. / � .4Mge&m ea / l //1 (l Cal,,nar Clerk I-)(,,/W,1/IC('L HONOR Judge (©Y) DGE 'OY H. MADSEN he/Su prior Court GGA 4duu- c� f////N -- -- __�..�:.,�.�.....,. ..:�� :.».�:�. �4=-•,, __o.w.t,:...._. ., n 4%t Oe 400,444. IN THE SUPERIOR COURT. FOR THE STATE OF ALASKA THIRD JUDICIAL DISTRICT AT KODIAK KODIAK ISLAND BOROUGH, ) ) Plaintiff, ) ) vs. ) ) JOE PERROZZI,) ) Defendant. ) ) No. 3K0-84- CIV CERTIFICATE OF COUNSEL STATE OF ALASKA ) ) ss: THIRD JUDICIAL DISTRICT ) JOEL H. BOLGER being first duly sworn, deposes and says: 1. I am the attorney for the plaintiff in this case. This certificate is filed in support of plaintiff's Motion for Order Shortening Time. 2. I received notice that a hearing was scheduled on plaintiff's Motion for Order Shortening Time for 2:45 P.M. on August 16, 1984. The defendant has not been served with a copy of plaintiff's motion 24 hours before this time. 3. On July 27, 1984 I was contacted by Ben Hancock an attorney in Kodiak, Alaska who told me that he represented Joe Perrozzi on the zoning violation which is the subject of this case. I have discussed this matter with Mr. Hancock as attorney for Mr. Perrozzi several times since that date. 4. On August 15, 1984 I contacted Mr. Hancock by tele- phone at 9:40 A.M. and told him that I was filing a request for a. temporary restraining order. I asked him if he still represented Mr. Perrozzi and he said yes. I asked if he would accept service on behalf of Mr. Perrozzi and he said no. I filed the Complaint, Motion for Temporary Restraining Order, Motion for Preliminary Injunction and supporting documents on the afternoon of August 15 IIN Elt BOLGER '".Firir-YS AT LAW CA 110E BOX 193 A,ASKA 99615 .(171 4%16-6061 I I 1984 with directions for personal service on Mr. Perrozzi by the Alaska State Troopers. 5. On August 16, 1984 I called Ben Hancock around 10:00 A.M. to notify him of the hearing scheduled at 2:45 P.M. We agreed that my partner, Matthew Jamin would deliver a copy of all court documents in this case to Mr. Hancock at 10:30 A.M. without prejudice to Mr. Perrozzi's right to object to personal service. Mr. Jamin did deliver those documents at 10:30 A.M. on August 16, 1984. SUBSCRIBED AND SWORN to before me this 16th day of August, 1984 at Kodiak, Alaska. Notary Public in and aska My commission expires: I hereby certify that a copy of this document was hand delivered to L. Ben Hancock this 16th day of August, 1984. JANIN & BOLE, ATT NE Kodiak Island Borough v. Joe Perrozzi No. 3K0-84- CIV "CERTIFICATE OF COUNSEL" Page 2 41111 KODIAK ISLAND BOR( H, ‚'5. JOE PERROZZI, AlKODIAK Plaintiff, Defendant. Pltf's Phone 486-5736 CASE NO. 3K0 -84 - DIRECTIONS FOR SERVICE Atty. Firm Jamin & Bolger Phone 486-6061 List of AU Documents to .be aerved s ons • Com laint• Motion for Te o a y Restraining Order; Motion tor p nar Injunction; emoran um in Reatrainiag 0_r der. • • Serve on **• iis. Joe Perrozzi (Name of individual, reg. agent, etc.) Residence Address 312 Rezanoff Drive Business Address Kodiak Cafe Additional Directions Home Phone 486-4055 Bus. Phone 486-5470 * $ * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * 11, ;1/4 RETURN OF SERVICE 1, the undersigned, hereby certify and return that I served the above listed docilments, on the above captioned matter, on the therein named: by handing to and leaving a true and correct copy there of with: perSOn al y at in 31 (Address, street, apt., rural route, etc.) , Alaska, in the Judicial District, (AM) (PM) on the day of Return Date Department of Public Safety Service Fee By: , 19 ,Commissioner Mileage Printed Name: Total Title: 12-319 (Rev. 1-83) -- • IN THE (mum) (SUPERIOR) COURT FOR THE STATE OF ALASKA AT KODIAK KODIAK ISLAND BOROUGH, ) ) ) ) ) ) Plaintiff(s), ) vs. ) ) ) JOE PERROZZI, ) ) ) ) Defendant(s). ) ) Case No. 3K0-84- CI SUMMONS TO: JOE PERROZZI , Defendant. YOU ARE HEREBY SUMMONED and required to file with the court an answer to the complaint which accompanies this summons. Your answer must be filed with the court at 202 Marine Way, Kodiak, Alaska within (address) 20 days* after the day you receive this summons. In addition, a copy of your nnswer must be sent to plaintiff's attorney, JAMIN & BOLGER, Attorneys, At Law whose address is: 326 Center Street, Suite 202, Kodiak, Alaska 996.15 If you fail to file your answer within the required time, a default judg- ment may he entered against you for the relief demanded in the complaint. LJ This case has been assigned to Superior Court Judge This case has been assigned to District Court Judge This is a District Court case and will be assigned to an available judge. (COURT SEAL) CLERK OF COURT BY: DATE Deputy Clerk *The State or a state• office or agency named as a defendant has 40 days to file its answer. CIV -10f) (5/82) (st.3) CR 4, 5, 12, 55 SHMMONS Pia iff,) ) ) Defendant.) Numbor of Action / ►ene'd case, Pltf. .'s Attorn; Def.'s Attorney: ,4/(,oc-k ( )This request is for a calendar setting (no other motions or other filings necessary). )This request is for a date which I intend to place in a motion, notice, or other filing to the Court. Counsel/Ilicimrt-iffAluran in the above ereby request a time on the Court's calendar for the necessary for this matter: ‘S - eetf-r-s-/minutes. requested for this matter: l (/1 /A t 1/P /'- of Request: A.,4 / 5 / 7-424i Signtare o P rty Ma ing Request *•***i*******•*****************•*******************************.** IN THE TRIAL COURTS FOR THE STATE OF ALASKA TIIIRD JUDICIAL DISTRICT AT KODIAK )71w above request for Calendar Setting is DENIED because )The following date and time is ,h{'Iusion in a motion, notice or other rho above request a.m./p.m. the )The above captioned . I endar as fol lows: .-tore the Honorable iur the purpose of PATE SIGNED: given for the express purpose of filing to the Court as indicated in day of , 198 . case is hereby set on the Kodiak Trial Court a.m./p.m. the• day of , 198, , Judge/Magistrate certify that on ropy of the above was )mailed to each of the ;-;lowing at their addresses record, or ( )placed in .•'propc mite message slot in - ,,•rk's Office, Kodiak. :.1 1 . •ndar Clerk HONORABLE ROY H. MADSEN Judge of the Superior Court (©Y). 1 KODIAK IN THE SUPERIOR COURT FOR THE STATE OF ALASKA THIRD JUDICIAL DISTRICT AT KODIAK ISLAND BOROUGH, ) ) Plaintiff, ) ) vs. ) ) JOE PERROZZI, ) ) Defendant. ) ) No. 3K0-84- CIV COMPLAINT 1. Plaintiff is an Alaska municipal corporation. 2. Defendant is a resident of Kodiak, Alaska. Defendant owns real property described as follows: Lot 30 and Lot 32, Block 19, Kodiak Townsite, Kodiak Recording District, Third Judicial District, State of Alaska. The street address of this property is 312 Rezanoff Drive. 3. A residence on defendant's property is in violation of the building setback requirements of the Kodiak Island Borough Code. 4. Defendant obtained a building permit, No. 5131, for an addition to the residence on August 5, 198,3. The permit was issued in violation of Kodiak Island Borough Code 17.36.070.C. 5. Bud Cassidy, the Zoning Officer for the Kodiak Island !, Borough, issued an order requiring defendant to discontinue con- struction on the residence on July 26, 1984. A copy of the order dis attached as "Exhibit A." !, 6. The defendant has continued construction on the res- idence in violation of the Zoning Officer's order. The defendant !refuses to comply with the order to discontinue construction. WHEREFORE, plaintiff demands judgment as follows: 1 1 , floLGER 1 AV ,F 110X 193 • • 99615 & DOLGER 1. A preliminary and permanent injunction requiring the defendant to comply with the order to discontinue construction issued on July 26, 1984. 2. A preliminary and permanent injunction forbidding the defendant from constructing any addition to the residence. 3. A declaratory judgment that the building permit No. 5131, is null and void. 4. For such other and further relief as the court deems just and proper. DATED this 15th day qf August, 1984 at Kodiak, Alaska. JAMIN & BOLGER By: Kodiak Island Borough v. Joe Perrozzi No. 3K0-84- CIV "COMPLAINT" Page 2 JOEL H. BOL R, Attorney for Kodiak Island Borough A—/ A•" I . _ j:11%.' 26, 1984 Mr. Joe Perrozzi P. O. Box 3696 Kodiak, Alaska 99615 Pe!r Mr. Perrozzi: Telephones 's _ ,3-5736 - 486-5737 — Box 1246 KODIAK, ALASKA 99615 i.e: Zoning Violation Lots 30 and 32, Block 19, Kodiak Townsite is to inform you that building permit number 5131 issued on August 5, 1983 i. null and void per Section 17.03.060 of Borough Code. The permit is in c:inflict with Section 17.36.070C of Borough Code which states: C. Repairs and Maintenance. On any nonconforming structure or an any building devoted in whole or in part to any nonconfOrming use, work may be done in any period of twelve consecutive months on ordinary repairs, or on repair or replacement of nonbearing walls, fixtures, wiring or plumbing, provided that the cubical content of the building as it existed at the time of passage.or amendment of the ordinance codified herein shall not be increased. on an investigation on July 20, 1984 it was determined that the structure It 30, Block 19, Kodiak Townsite is a nonconforming structure because this dwelling fails to meet building setback requirements specified in the Borough Caldct. Therefore, the construction of an addition onto this structure is not in ouinrmance with Section 17.36.070C of thellorough Code. As a result, and by ibc authority of Section 17.75.010 of the Borough Code, you are order to ...discontinue the construction or other preparatory activity leading to an unlawful structure." .‘dditional construction onto your structure is not lawful and must cease liately. .!econ may be appealed to the Planning and Zoning Commission within ten themailing of this notice by filing a written notice of appeal with the Cor:—clity Development Department stating the reason for the appeal and the -f soughc (Section 17.68.020). you hive any questions, please call. ely! Cassidy zant Planner/Zoning Officer Case file City Building Inspector Complainants P,A(/ (11e0,11/(JcC /.6) / '9 .ArmoNuticalaummatiagmwouiamApinwit.46,41., .44000000 EXHIBIT A *' ;.7 '1F47311171S,4101-WrtUrntelitKI... *IN & BOLGER :• • '3 AT LAW )X 1113 9961f., IN THE SUPERIOR COURT FOR THE STATE OF ALASKA THIRD JUDICIAL DISTRICT AT KODIAK KODIAK ISLAND BOROUGH, ) ) Plaintiff, ) ) vs. ) ) JOE PERROZZI, ) ) Defendant. ) ) No. 3K0-84- CIV MOTION FOR ORDER SHORTENING TIME Kodiak Island Borough, by and through its attorneys, Jamin and Bolger, moves this court for an order pursuant to Civil Rule 77(1) for a hearing on shortened time on plaintiff's Motion For a Temporary Restraining Order and Motion for Preliminary Injunction. The undersigned counsel for the plaintiff certifies that he has conferred with opposing counsel and that oral argument is necessary to resolve this matter. This motion is supported by the attached affidavits of Joel H. Bolger and Charles Cassidy. Respectfully submitted this 15th day of August, 1984 at Kodiak, Alaska. r JAMIN & BOLGER JOEL H. BOLGER, Attorney for Kodiak Island Borough 41r, 2+ EiOLGER AT LAW iX 193 t t • ••.:,?:tk 091,:b • IN THE SUPERIOR COURT FOR THE STATE OF ALASKA THIRD JUDICIAL DISTRICT AT KODIAK KODIAK ISLAND BOROUGH, ) ) Plaintiff, ) ) vs. ) ) JOE PERROZZI, ) ) Defendant. ) ) No. 3K0-84- CI ORDER FOR HEARING ON SHORTENED TIME Upon the motion of the plaintiff, IT IS HEREBY ORDERED that a hearing on plaintiff's Motion For Order Shortening Time is scheduled for ! on , 1984 before the Honorable DATED this day of 1984 at 'J Kodiak, Alaska. SUPERIOR COURT JUDGE -r. IN THE SUPERIOR COURT FOR THE STATE'OF ALASKA THIRD JUDICIAL DISTRICT AT KODIAK KODIAK ISLAND BOROUGH, ) ) Plaintiff, ) ) vs. ) ) JOE PERROZZI,) ) Defendant. ) ) No. 3K0-84- CIV MOTION FOR TEMPORARY RESTRAINING ORDER Kodiak Island Borough, by and through its attorneys, Jamin & Bolger, moves this court for a temporary restraining order requiring the defendant to comply with the order to discontinue construction of an unlawful structure issued on July 26, 1984 by the Kodiak Island Zoning Officer pursuant to Kodiak Island Borough Code 17.75.010.A.3. This motion is supported by the attached affidavits and memorandum in support of motion for preliminary injunction. A temporary restraining order is required under the standards of Civil Rule 65(b) because the defendant threatens to continue construction in violation of zoning ordinances causing immediate and irreparable injury to plaintiff before defendant can be heard in response. The notice to defendant's attorney is set forth in the attached Affidavit of Joel H. Bolger. Respectfully submitted this 15th day of August, 1984 at Kodiak, Alaska. 1:t1 & BOLGER •`- A' AW BOX 193 99615 4 i• 60C B : JAMIN & BOLGER H. BOL ER, Attorney for Kodiak Island Borough IN THE SUPERIOR COURT FOR THE STATE. OF ALASKA THIRD JUDICIAL DISTRICT AT KODIAK KODIAK ISLAND BOROUGH, ) ) Plaintiff, ) ) vs. ) ) JOE PERROZZI, ) ) Defendant. ) ) No. 3K0-84- CIV EDTION FOR PRELIMINARY INJUNCTION Kodiak Island Borough, by and through its attorneys, Jamin & Bolger, moves this court for a preliminary injuction requiring the defendant to comply with the order to discontinue construction of an unlawful structure issued on July 26, 1984 by the Kodiak Island Zoning Officer pursuant to Kodiak Island Borough Code 17.75.010.A.3. This motion is supported by the attached affidavits and memorandum in support of motion for preliminary injunction. Respectfully submitted this 15th day of August, 1984 at Kodiak, Alaska. By: eOLGER LAW • • - 50X 193 tV.K.A 99615 JAMIN & BOLGER H. BOLG Attorney or Kodiak Island Borough IN & BOLGER 1q3 lAr r 99Gt5 IN THE SUPERIOR COURT FOR THE STATE OF ALASKA THIRD JUDICIAL DISTRICT AT KODIAK KODIAK ISLAND BOROUGH, ) ) Plaintiff, ) ) vs. ) ) JOE PERROZZI, ) ) Defendant. ) No. 3K0-84- CIV ) MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION Joe Perrozzi owns a duplex residence located at 315 Rez- anoff Drive. He received a building permit, No. 5131 on August 3, 1983. The permit was signed by John Sullivan, the City of Kodiak building official, and William Hodgins, the Kodiak Island Borough zoning administrator. The permit allowed construction of a third story addition on top of Mr. Perrozzi's residence. The Perrozzi residence is in an area zoned as R2 -Two Family Residential District. On July 20, 1984 Charles Cassidy, the Zoning Officer for the Kodiak Island Borough, determined that the Perrozzi residence was in violation of the yard setback requirements of the Kodiak Island Borough Code. Mr. Cassidy asked Mr. Perrozzi not to begin his construc- tion until the Borough could obtain legal advice concerning the addition the following Monday. On that same date, Mr. Cassidy inspected the Perrozzi residence and determined that some foun- dation work had been done, but there was no construction begun on an additional story above the existing roof line of the residence. Mr. Cassidy called Mr. Perrozzi on July 23, 1984 and told him that his building permit was invalid and that a variance would be required before he could continue to build as planned. 11 A11,, ,".1, Mr. Cassidy issued a written order to Joe Perrozzi on j July 26, 1984 stating in part: "Any additional construction onto your structure is not lawful and must cease immediately." At the time when the stop work orderyas issued four walls had been formed on the third story addition and some roof beams had been added. Mr. Perrozzi continued to work on the addition from July 26, 1984 until July 30, 1984. Misdemeanor citations for violation of the stop work order were issued on July 27, 1984 and July 30, 1984 and are presently prosecuted in case numbers 3K0-84-559 Cr. HOLGER 1 LAW ntr, 11E, and 3K0-84-569 Cr. On July 30, 1984 Mr. Perrozzi filed an appeal from the enforcement order issued by Mr. Cassidy and an application for a variance. On August 6, 1984 the Planning and Zoning Commission held a public hearing and denied Mr. Perrozzi's appeal and appli- cation. On August 13 and August 14, 1984 the parties tried to reach an agreement to discontinue construction. Mr. Perrozzi apparently intends to continue construction in violation of the stop work orders by removing the previously existing roof of his residence. II. STANDARD FOR PRELIMINARY INJUNCTION The test for determining whether a preliminary injunction !should be issued is based upon the "balance of hardships" approach. Alaska Public Utilities Commission v. Greater Anchor- age Area Borough, 534 P.2d 549 (Alaska 1975). Three factors must be satisfied: (1) The plaintiff must be faced with irrepar- able harm; (2) The opposing party must be adequately protected; and I. at Kodiak Island Borough v. Joe Perrozzi No. 3K0-84- CIV MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION" Page 2 (3) The plaintiff must raise "serious" and "substantial" questions going to the merits of the case; that is, the issues raised cannot be "frivolous or obviously without merit." 554, citing A.J. Industries_anc, v. Alaska .Public Service • .7-7-777 & BOLGER Al LAW Ti Commission, 470 P.2d 537, modifie 483 P.2d 198 (Alaska 1968). It is not necessary for the moving party to demonstrate probable success on the merits. Keystone Services. Inc. v. Alaska Trans- • • • 1 • till 568 P.2d 952, 954 (Alaska 1977). Each of the factors required for a preliminary injunction is satisfied in this case. III. JOE PERROZZI CAN BE PROTECTED The Kodiak Island Borough requests an injunction only until the Kodiak City Council decides the appeal Mr. Perrozzi has filed from the decision of the Planning and Zoning Commission of August 6, 1984. Basically the Borough requests that the status quo should be preserved until the Kodiak City Council has an opportunity to make a decision. There should be no damage what- soever to Joe Perrozzi from this short delay.. The only conceivable injury which Mr. Perrozzi could sus- tain would be damages to the construction which he has initiated since July 20, 1984. Of course, Mr. Perrozzi should be able to protect himself by covering the structure with plastic to avoid rain damage. On the building permit dated August 3, 1983, Mr. Perrozzi listed the value of his addition as $70,547.76. The Kodiak Island Borough clearly has adequate liquid assets which are h available to cover any possible damages to Mr. Perrozzi. No bond ij or other security is required to be posted by a municipality. Civil Rule 65(c). IV. MDIAK ISLAND BOROUGH WOULD SUFFER IRREMEAUZJIARDI The irreparable harm which the Kodiak Island Borough will suffer if a temporary restraining order is not issued is the dam - rage to the public interest in 'orderly development. Mr. Perrozzi's addition is in violation of zoning regulations and out of charac- ter with the other residences in his neighborhood. The Kodiak Island Borough has enacted zoning regulations iipursuant to AS 29.33.090. The intent of these regulations is specifically set forth in the Kodiak Island Borough Code (KIBC): 1lKodiak Island Borough v. Joe Perrozzi 3K0-84- CIV "MEM0RANDUM IN SUPPORT OF MOTION 'FOR PRELIMINARY INJUNCTION" Page 3 1, I I igh 17.01.030 Intent. It is the intent of this title to: A. Provide for orderly development; B. Lessen street congestion; C. Promote fire safety and public order; D. Protect the public health and general welfare; E. Stimulate systematic development of transpor- tation, water, sewer, school, park and other facilities; and G. Encourage efficiency in the use of energy and the substitution of energy from renewable sources for energy from fossil fuels. A civil action for injunction is specifically allowed by KIBC 17.75.030. 17.75,0130 Penalties -and remedies. B. Notwithstanding the availability of any other remedy, the borough or any aggrieved person may bring a civil action to enjoin any violation of this title, any order issued under 17.75.010(A), or any term or condition of a conditional use, variance or other entitlement issued under this title; or to obtain damages for any injury the plaintiff suffered as a result of a violation. An action for injunction under this section may be brought notwithstanding the availability of any other remedy. Upon application for injunc- tion relief and the finding of an existing or threatened violation, the Superior_ Court shall enjoin the violation. (emphasis added) The last sentence of the foregoing section requires the court to issue an injunction upon application and demonstration of a zoning violation. The existence of the violation is set forth in the following section. V. THIS CASE INVOLVES SERIOUS OUESTIONS As noted above, the applicant for a preliminary injunc- tion must raise issues which are not "frivolous or obviously with - 1 out merit." Alaska Public Utilities Commission v. Greater Anchor- : age Area Borough, 534 P.2d at 554. This element is satisfied because Mr. Perrozzi's residence is clearly in violation of the lizoning code. ,1 Mr. Perrozzi's residence is in an area zoned R-2 - Two ,Family Residential District. See KIBC 17.19.010 - 060. In this ,district minimum front yard is twenty five feet unless the resi- dence meets one of the alternative setback requirements: 1,Kodiak Island Borough v. Joe Perrozzi PINABOL(,ER ) I1No. 3K0-84- CIV H"MEMORANDUM IN SUPPORT OF MOTION - • : .9tith • 1;FOR PRELIMINARY INJUNCTION" • " NPage 4 1' so.11: Mr HOLGER if* 17.19.040 Yards. A. Front Yards. 1. The minimum front yard shall be twenty-five feet unless a previous building line less than this has been established, in which case the minimum front yard for interior lots shall be the average of the setbacks of the main structures on abutting lots on either side if both lots are occupied. 2. If one lot is occupied and the other vacant, the setback shall be the setback of the occupied lot plus one-half the remaining distance to the required twenty -five-foot setback. 3. If neither of the abutting side lots or tracts are occupied by a structure, the setback shall be twenty-five feet. Mr. Perrozzi's residence has only a ten foot front yard. The other tests for a front yard setback are not satisfied because Mr. Perrozzi's residence is closer to the front lot line than any of his neighbors. The Perrozzi residence may be a "nonconforming structure" existing prior to the enactment of the zoning ordinance. See KIBC 17.36.010. Even so, the third story addition to the residence is illegal. It is clearly the intent of the zoning ordinances that no nonconforming structure may be enlarged: KIBC 17.36.020 /ntent. Within the land use dis- tricts established by this title there exist lots, structures and uses of land and structures which were lawful before the ordinances codified in this title were passed or amended, but which would be prohibited under the existing terms of this title or future amendments. It is the intent of this chapter to permit these nonconformities to continue until they are removed. Such uses are declared by this chapter to be incompatible with permitted uses in the land use districts involved. It is further the intent of this chapter that nonconformities shall not be enlarged upon, expanded or extended, nor be used as grounds for adding other structures or uses prohibited elsewhere in the same district. KIBC 17.36.070C specifically states that the "cubical content" of a nonconforming structure shall not be increased. C. Repairs and Maintenance. On any nonconforming structure or on any building devoted in whole or in part to any nonconforming use, work may be done in any period of twelve consecutive months on ordinary repairs, or on repair or replacement of nonbearing walls, fixtures, wiring or plumbing, provided that the cubical content of the building as it existed at the time of passage or amendment of the ordinance condified herein shall not be increased. Kodiak Island Borough v. Joe Perrozzi No. 3K0-84- CIV "MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION" Page 5 t Joe Perrozzi's third story addition clearly increases the "cubical content" of the structure in violation of KIBC 17.36.070C. There is no indication that the zoning officer was informed of the setback at the time when the original building permit was issued on August 84 1983. In fact the building permit only indicates that "No Changes" were made to the existing setback requirements. In any event, the building permit does not author- ize a violation of zoning ordinances. 17.03_.050 Building permits. A building permit is required for the erection, construction, establish- ment, moving, alteration, enlargement, repair or conversion of any building or structure in any district established by this title, subject to the following: C. No building permit shall be issued by a building official until the zoning officer has verified from the applicaiton for a building permit for a proposed building that it conforms and will be occupied for a use in conformity with the pro- visions and regulations of this title, except that this provision shall not apply to building permits for residential structures when no yard or height changes are involved. Any building permit issued in conflict within this title is null and void. (Emphasis added). 17.03.07D No building permit, plans or specifications will be approved which permits any violations, modification or waiver of this title. When the terms of a build- . ifisations conflict wi.th this title, the provisions of this title will govern. (Emphasis added). 1 • • • • • • " • I • I I 9 1 Mr. Perrozzi cannot rely on the building permit he received in order to build an illegal addition to his house. For the foregoing reasons this court should issue a pre- liminary injuction, enjoining Joe Perrozzi from any further construction on his residence pending a final decision in this II case. DATED this day of August, 1984 at Kodiak, Alaska. By: JOEL H. 0 ER, Attorney for Kod k Island Borough :1Kodiak Island Borough v. Joe Perrozzi h BOLGER jNo. 3K0-84- CIV I"MEMORANDUM IN SUPPORT OF MOTION " - FOR PRELIMINARY INJUNCTION" Page 6 KODIAK ISLAND BOROUGH Telephones 486-5736 - 486-5737 — Box 1246 KODIAK, ALASKA 99615 August 17, 1984 Mr. Joe Perrozzi Box 3696 Kodiak, Alaska 99615 Dear Mr. Perrozzi: RE: Case 84-098. Appeal from an administrative decision and a variance request. Lots 30 and 32, Block 19, Kodiak Townsite Alaska. At the special meeting of the Planning and Zoning Commission on August 6, 1984, the Commission granted a variance from Section 17.36.070 (Repairs and Maintenance) for Case 84-098 for the following activity: "to permit the construction of a pitched roof to be added to the roof line of the existing structure with a 4 to 12 pitch ratio." The Commission postponed formalizing findings of fact at their August 6 meeting until their August 15, 1984 regular meeting. These findings of fact have now been adopted and include the following: 1. General maintenance of the structure requires replacement of the existing flat roof; not allowing a pitched roof would create similar problems cur- rently existing with the flat roof and create an unnecessary hardship; 2. An unnecessary hardship would result by not allowing necessary structural improvements to this nonconforming structure in need of repair; and 3. The appellant was granted a building permit (#5131) on August 8, 1983. As a result of the Commission's decision on August 6, 1984 to affirm the admin- istrative decision that this building permit is null and void per Section 17.03.060 of the Borough Code, the granting of this variance will grant some relief to the appellant. Should you have additional questions, please call. Sincerely, COMMUNITY DEVELOPMENT DEPARTMENT Bud Cassidy Assistant Planner/Zoning Officer cmk cc "Case 84-098 City Clerk Tim Hill Joel Bolger, Borough Attorney COMMISSIONER CROWE MOVED TO GRANT F7' '',APPROVAL to the subdivision of Lot 2, Block 2, Shahafka Acres SubdIl on, U.S. Survey 3218; to Lots 2A and 2B, Block 2, Shahafka Acres Subdivision, U.S. Survey 3218. The motion was seconded and CARRIED by unanimous roll call vote. D) CASE 8-84-027. Subdivision of Lot 4A, Block 1, Shahafka Acres Subdivision, U.S. Survey 3218; to Lots 4A-1, 4A-2, and 4A-3, Block 1, Shahafka Acres Subdivision, U.S. Survey 3218. (Mary Jane Rogers) COMMISSIONER HILL MOVED TO GRANT FINAL APPROVAL to the subdivision of Lot 4A, Block 1, Shahafka Acres Subdivision, U.S. Survey 3218; to Lots 4A-1, 4A-2, and 4A-3, Block 1, Shahafka Acre b Subdivision, U.S. Survey 3218 with the following conditions: 1. That a note be placed on the plat stating that subdivision of Lot 4A-3 be allowed; 2. That a building setback line be shown on Lot 4A-3, 25 feet from the rear lot lines of 4A-1 and 4A-2; 3. That a 15 -foot -wide utility easement be provided, lot line between Lot 4A-1 and 4A-2; and 4. That a ten -foot -wide utility easement be provided line between Lot 3 and Lot 4A-3. no further which shall be centered on the along the lot ,The motion was seconded. COMMISSIONER KNIGHT MOVED TO AMEND THE MOTION BY ADDING: 5) That the replat be signed by the lending_ institution. The amendment was seconded and CARRIED with Commissioner Rennell voting NO. The main motion as amended CARRIED with Commissioner Rennell voting NO. E) CASE 84-098. Variance request. Lots 30 and 32, Block 19, Kodiak Townsite Alaska Subdivision. (Joe Perrozzi) COMMISSIONER CROWE MOVED TO REMOVE CASE 84-098 FROM THE TABLE. Motion was seconded and CARRIED by unanimous voice vote. COMMISSIONER CROWE MOVED TO ACCEPT THE FINDINGS OF FACT FROM THE PLANNING DEPARTMENT AS OUTLINED BELOW: 1. General maintenance of the structure requires replacement of the existing flat roof; not allowing a pitched roof would create similar problems currently existing with the flat roof and create an unnecessary hardship; 2. An unnecessary hardship would result by not allowing structural improvements to this nonconforming structure in need of repair; and 3. The appellant was granted a building permit (#5131) on August 8, 1983. As a result of the Commission's decision on August 6, 1984 to affirm the administrative decision that this building permit is null and void per Section 17.03.060 of the Borough Code, the granting of this variance will grant some relief to the appellant. The motion was seconded and CARRIED with Commissioners Patterson and Hill abstaining. VIII NEW BUSINESS A) 8) C) Revised Parking Ordinance Gravel Extraction Planning and Zoning Commission Bylaws Amendments In order to give the Commission time for review, staff recommended that the Commission review the items under New Business at their next work session. COMMISSIONER RENNELL MOVED TO ACKNOWLEDGE RECEIPT OF ALL NEW BUSINESS. The motion was seconded. Commissioner Crowe asked staff to clarify some of the proposed bylaws and amendments: 1) establishment of a quorum; 2) Item H under III (Powers and Duties) relating to exception requests and energy efficiency; and 3) the order of meetings as proposed to be amended. The motion CARRIED by unanimous voice vote. Regular Meeting -7- August 15, 1984 PLANNING AND ZONING COMMISSION FINDINGS. OF FACT FOR AN APPEAL FROM AN ADMINISTRATIVE DECISION AND A REQUEST FOR A VARIANCE LOTS 30 AND 32, BLOCK.19, KODIAK TOWNSITE ALASKA SUBDIVISION JOE PERROZZI The above-cited findings of fact were approved on August 15, , -,. ti:198103y the Planning and Zoning Commission in the Kodiak Island Borough Assembly Chambers, 710 Mill Bay Road, Kodiak, Alaska. The meeting was conducted by the Kodiak Island Borough Planning and Zoning Commission, Mr. Ken Gregg, Chairman. CERTIFICATE THIS IS TO CERTIFY: That the Findings of Fact for the matter of: AN APPEAL FROM AN ADMINISTRATIVE DECISION AND A REQUEST FOR A VARIANCE LOTS 30 AND 32, BLOCK 19, KODIAK TOWNSITE ALASKA SUBDIVISION JOE PERROZZI were approved as herein appears and this is the original verbatim transcript thereof. KODIAK ISLAND BOROUGH /44111V-i:t CaifIntt Secretary III Perrozzi Verbatim -2- August 15, 1984 PLANNING AND ZONING COMMISSION MEMBERS AND KODIAK ISLAND BOROUGH STAFF Commission: KEN GREGG, CHAIRMAN STEVE RENNELL VIRGINIA CROWE DAN JAMES TIM HILL MARLIN KNIGHT FRED PATTERSON Statf: DAVE CROWE, Borough Engineer, Engineering Department LINDA FREED, Director, Community Development Department BUD CASSIDY, Assistant Planner/Zoning Officer Community Development Department CATHY KESTER, Acting Secretary, Community Development Department Perrozzi Verbatim August 15, 1984 PROCEEDINGS CHAIRMAN GREGG: Next item is, I believe, Item (E); findings of fact in Case 84-098. Uh have you provided anything to do.. MS. FREED: Yeah, we had it under Item X. If you check far enough; we put it under reports. CHAIRMAN GREGG: Okay. MS. FREED: And the reason we did that is because it wasn't listed as an agenda item until after the special meeting. It has..it should have a little tag on..in the packet. CHAIRMAN GREGG: I realize we put there. .we put it under Old Business. COMMISSIONER CROWE: I realize it..I can't remember where I kept seeing it. Mr. Chairman I move uh that we remove from the table uhm this item for consideration. COMMISSIONER RENNELL: I'll second the motion. CHAIRMAN GREGG: All in favor signify by saying aye. ALL THE COMMISSIONERS: Aye. CHAIRMAN GREGG: All opposed same sign. COMMISSIONER CROWE: I think that Linda uh reflected our discussion and our. .the points we tried to bring out. I don't have any additions. Does anybody else? COMMISSIONER PATTERSON: I have a question for staff. Linda, since I wasn't here for the meeting would it be proper for me to vote on the findings of fact? Perrozzi Verbatim -4- August 15, 1984 MS. FREED: You could abstain if you feel uncomfortable in voting on the findings of fact. Since..since you did miss that meeting. COMMISSIONER HILL: Do make a roll call. CHAIRMAN GREGG: I would also...I would also like (not decipherable). COMMISSIONER RENNELL: Is there..is there a motion to adopt? COMMISSIONER CROWE: Mr. Chairman, I move that we grant uh we accept the uh findings of fact as outlined on the August 8 memo from the Planning Department. COMMISSIONER RENNELL: I'll second the motion. CHAIRMAN GREGG: Is there any discussion? Seeing none, could we have a roll call vote please. MS. KESTER: Mr. James. COMMISSIONER JAMES: Yes. MS. KESTER: Mr. Knight. COMMISSIONER KNIGHT: Yes. MS. KESTER: Mr. Patterson. COMMISSIONER PATTERSON: Abstain. MS. KESTER: Mr. Rennell. COMMISSIONER RENNELL: Yes. MS. KESTER: Mrs. Crowe. COMMISSIONER CROWE: Yes. MS. KESTER: Mr. Gregg. CHAIRMAN GREGG: Yes. COMMISSIONER HILL: I'm not here. Perrozzi Verbatim -5- August 15, 1984 August 9, 1984 - Linda Freed, Director Community Development Department Kodiak Island Borough 710 Mill Bay Road. Kodiak, Alaska -99615 RE: Case 84-098. Appeal from an Administrative Decision - Perrozzi Lots 30 and 32, Block 19, Kodiak Townsite Alaska Subdivision Dear Linda: Joe Perrozzi has filed an appeal of the Planning and Zoning Commission's August 6, 1984 affirmation of an administrative decision and denial of a variance request from Borough Code 17.36.060(C). Please prepare the record on appeal as required by Kodiak City Code sub- section,17.10.020(b).- Sincerely, CITY OF KODIAK MARGELLA DAL KE , CMC City Clerk cc: Mickie Miller, CMC Mayor and Councilmembers City Manager POST OFFICE BOX 1397, KODIAK , ALASKA 99615 PHONE (907) 486-3224 August 9, 1984 Ms. Linda Freed, Borough Planner Community Development Department Box 1256 Kodiak, AK 99615 RE: Perrozzi Building-permit/Construction Dear. Ms. Freed: During our recent brief discussions, we have lamented the .:construction by the above -referenced individual, after issuance of a stop work. order. ,Apparently it's, common knowledge. :that Mr. Perrozzi now intends to complete the building before the appeal is heard by the City Council. This should be prevented by any legal means possible. Legal cbunsel. for both the City and the Borough •have now, discussed this matter. Whiletheremay be some ambiguity in the, code provisions, the only way to- determine -how -a court might interpret it, would be to file an action and find As we discussed yesterday, and as the legal counsel have discussed, Section 17.75.030(B) .seems to be the basis .on, whioh.a temporary restraining order or other appropriate legal action should or could be filed. The City of Kodiakherewithurges the Borough to file the appropriate legal action as soon as possible. Regardless of what may have transpired involving issuance of the permit itself, the construction should not be allowed once a -atop 'work order has been issued. ,Very truly yours, CITY OF KO IAK amuel C. Gesko,r. City Manager SCG/keh cc: Jerome Selby, Borough Manager Kodiak Island Borough Kodiuk, Alaska RECEIVED POST OFFICE BOX 1397, kODIAI4 . ALMA 99615 PHONE (907) 486-3224 7)8Iglie 6u44-6, t, 1 3d-477, 074411-;J-440:), 71)z, JQ tocte.) iked— ev ielaAVA /v-14*(52-4:dA4x4, cm4e ( 21,f,6(ff 042eAsiox) p.e,k gt.D2a. 1/4-1 ofd -4 (A)'4:4- affhti. litJ ree-rvh • wdtA-t-4- Aka/ /J'AALA, ) /0 ? (c) &f,e4 /117- A-ee-647&, (4 wiz q'/d' fru ae Oiede a/te/ iAteei/tec;e1-J 7//,_ ALI aoti • /rn4-e-co-,/,cd co -r -v-41 /04,-Q_/ e/e,t4J e,;) zi6z ,1,LfiikiLL--) AiL-LrL, wet446./,)L- /taP ZZA J1;"te7 IN THE SUPERIOR COURT FOR THE STATE OF ALASKA THIRD JUDICIAL DISTRICT AT KODIAK KODIAK ISLAND BOROUGH, ) ) Plaintiff, ) ) vs. ) ) JOE PERROZZI, ) ) Defendant. ) ) No. 3K0-84- CIV AGREEMENT TO DISCONTINUE CONSTRUCTION The Kodiak Island Borough, by and through its attorneys, Jamin and Bolger, and Joe Perrozzi, by and through his attorney, L. Ben Hancock enter into the following agreement this day of August, 1984. RECITALS: The Kodiak Island Borough is a municipality which regulates zoning within its boundaries. Joe Perrozzi is the owner of a duplex residence located at 312 Rezanoff Street or Lot 30, Block 19, Kodiak Townsite, within the Kodiak Island Borough (here- inafte,. "residence"). Joe Perrozzi received a building permit No. 5131 issued August 3, 1983 for an addition to his residence. The Kodiak Island Borough issued an order for Joe Perrozzi to discontinue construction under this permit on July 26, 1984. The enforcement order was affirmed by the Kodiak Island Borough Planning and Zon- ing Commission on August 6, 1984. Joe Perrozzi has appealed the Planning and Zoning Commission decision to the Kodiak City Coun- cil as Board of Adjustment. In consideration of the mutual covenants set forth below, the parties agree as follows: 1. Joe Perrozzi agrees to immediately discontinue any JAMIN & BOLGER ATTORNEYS AT LAW ,OST OFFICE BOX 193 ODIAK, ALASKA 99615 , (907) 486.6061 construction on the residence at or above the roof line which existed as of August 3, 1983. Joe Perrozzi agrees not to do any further construction at or above the previous roof line pending the decision of the Board of Adjustment. 2. Kodiak Island Borough agrees that Joe Perrozzi may continue construction under building permit No. 5131 on the resi- dence below the roof line which existed as of August 3, 1983, so long as said construction does not increase the cubical content of the residence or otherwise violate zoning regulations, pending the decision of the Board of Adjustment. 3. Both parties agree that this agreement does not waive or affect any claim or defense available to either party in the Board of Adjustment proceeding or any further proceedings concern- ing building permit No. 5131, the stop work order issued July 26, 1984, the variance application or the Planning and Zoning Commis- sion decision. Joe Perrozzi does not waive any claim or defense he may have to eventually complete construction under building permit No. 5131. The Kodiak Island Borough does not waive any claim or defense it may have to require Joe Perrozzi to remove any or all of the addition to his residence and to discontinue con- struction permanentl . 4. Eithe arty may obtain an injunction to enforce this agreement through the Superior Court for the State of Alaska with- out proof of irreparable injury or posting of bond or other security. Either party may apply for such an injunction upon reasonable notice by telephone to the counsel for the opposing party set forth below. DATED: L. BEN HANCOCK, Attorney for Joe Perrozzi DATED: JOEL H. BOLGER, Attorney for Kodiak Island Borough Kodiak Island Borough v. Perrozzi No. 3K0-84- CIV "AGREEMENT TO DISCONTINUE CONSTRUCTION" Page 2 KODIAK ISLAND BOROUGH - Telephones 486-5736 - 486-5737 — Box 1246 KODIAK, ALASKA 99615 August 7, 1984 Mr. Joe Perrozzi P.0 Box 3696 Kodiak, Alaska 99615 Dear Mr. Perrozzi: RE: CASE 84-098. An appeal from an administrative decision in accordance with with Section 17.68.020 of the Borough Code ordering the discontinuation of construction or other preparatory activity leading to an unlawful use of land or structure (17.75.010 A.3.); and A request for a variance from Section 17.36.070(C) of the Borough Code (Repairs and Maintenance) in order to provide relief from the administra- tive decision to permit the construction of a third -story addition that would increase the cubical content of a nonconforming structure. Lots 30 and 32, Block 19, Kodiak Townsite Alaska Subdivision (Joe Perrozzi) The Planning and Zoning Commission, at their August 6, 1984 special meeting, took the following action on the above -referenced case. The Commission: A) Affirmed the zoning officer's administrative decision ordering the dis- continuation of construction or other preparatory activity leading to an unlawful structure since building permit #5131 is null and void, per Section 17.03.060 or the Borough Code. Findings of Fact made by the Commission for this decision include: 1) Whereas Section 17.36.070(C) states..."Repairs and Maintenance. On any nonconforming structure or on any building devoted in whole or in part to any nonconforming use, work may be done in any period of twelve consecutive months on ordinary repairs, or on replacement of nonbearing walls, fixtures, wiring, or plumbing, provided that the cubical content of the building as it existed at the time of passage or admendment of the ordinance codified herein shall not be increased;" and 2) Section 17.03.060(C) states "Building Permints. Any building per- mit issued in conflict with this title is null and void." 3) Therefore, building permit #5131 is null and void, since it conflicts with Section 17.36.070(C) of the Borough Code. B) The Commission denied a request for a variance from Section 17.36.070(C) of the Borough Code (Repairs and Maintenance) in order to provide relief from the administrative decision to permit construction of a third story addition that would increase the cubical content of a noncon- forming structure. Finding of Facts for this decision include: 1) No exceptional physical circumstances or conditions applicable to to-the°property or to its intended use or development exist; and 2) The granting of the variance would prejudice other properties in the vicinity by impairing the view of adjacent homeowners. The criteria of Chapter 17.66 of the Borough Code (Variances) must be met in order for the Commission to approve a variance request. C) The Commission approved a variance from Section 17.36.070 (Repairs and Maintenance) to permit the construction of a pitched roof to be added to the roof line of the existing structure with a 4 to 12 pitch ratio. Findings of Fact for this decision will be formalized at the August 15, 19€ regular meeting of the Planning and Zoning Commission. The Planning and Zoning Commission's decision becomes final unless an appeal is made within ten (10) days of the date of the action by filing, with the City Clerk, a written notice of appeal specifying the grounds thereof, (Borough Code, Section 17.68.010(A). Section 17.68.010(C) states: "An appeal from any action or decision of the Commission stays the decision appealed from until there is a final decision on the appeal." Therefore, until a formal appeal is filed with the City Clerk, the decision of the Planning and Zoning Commission to affirm the administrative order to dis- continue the construction or other preparatory activity leading to an unlawful structure is final, and all work must cease. Should you have any questions, please call. Sincerely, COMMUNITY DEVELOPMENT DEPARTMENT Bud Cassidy Assistant Planner/Zoning Officer cc: City of Kodiak Tim Hill CASE 84-098 JAMIN & BOLGER ATTORNEYS AT LAW POST OFFICE BOX 103 KODIAK. ALASKA 99615 19071 490.6061 JOEL 14. BOLGER MATTHEW 0. JAMIN MEMORANDUM T0: Linda Freed Kodiak Island Borough/ FROM: Joel Bolger 6:4 JAMIN & BOLG RE: Kodiak Island Borough v.[Joe Pertozzi- 1 DATE: August 6, 1984 I promised to send a memo concerning relevant considera- tions for the .Planning and Zoning Commission in its_meeting to consider theiappeal filed by Joe Perrozzi concerning administra-, ytive enforcement action concerning an_addition.to_his residence ,on Rezanof Drive., Bud Cassidy as Zoning Officer of the Kodiak Island Borough issued an order under EIBC 17.75.010.a.3 which provides as fol- lows: 17.75.010. Administrative enforcement action. A. The zoning officer may order• 3. The discontinuation of construction or other pre- patory activity leading to an unlawful structure or an unlawful use of a land or structure.... The relevant considerations on a variance application are listed quite clearly at KIBC 17.66.050. The procedure on appeal is listed at KIBC 17.68.020. Rel vant portions of this ordinance are set forth as follows: C. Public hearing. The Planning commission shall hold a public hearing on each appeal. At the bear- ing, the commission shall review the appeal record and hear evidence and arguments presented by persons interested in the appeal. D. Decision. The Plan- ning commission shall either affirm or reverse the MEMORANDUM T0: Linda Freed, RIB RE: Kodiak Island Borough v. Joe Perrozzi DATE: August 6, 1984 Page 2 zoning officer's decision in whole or in part. E. Findings. Every decision of the Planning Commission on an appeal shall be based upon findings and conclu- sions adopted by the commission. The findings must be reasonably specific so as to provide the commun- ity, and where appropriate, the reviewing authorities, a clear and precise understanding of the reason for the decision. F. Stay. An appeal from the deci- sion of the zoning officer stays the decision appealed from until there is a final decision on the appeal. Outside of the general zoning questions which come up on an appeal of this nature, I assume that Joe Perrozzi will bring up his reliance on a previously issued building permit. The rele- vant factual determinations to decide whether Perrozzi should be allowed to rely on the previously issued building permit were recently outlined by the Alaska Supreme Court as follows: 1. Did the property owner receive a permit which was beyond the power of the administrative officer to grant? 2. Did the land owner detrimentally rely on the permit? 3. Has the government attempted to revoke the permit and enforce the appropriate zoning ordinance? 4. Should the construction be allowed to continue in the interest of justice? Relevant to the final question are the purposes of the zoning ordinances in the case, health and safety codes, and the character of the present structures in the area. These factors should be taken into consideration in the Planning Commission's decision on whether or not to affirm the enforcement action. Feel free to call if you have any questions concerning this memo. JHB/vkb KODIAK ISLAND BOROUGH KODIAK ISLAND BOROUGH PLANNING AND ZONING COMMISSION SPECIAL MEETING AGENDA. AUGUST 6, 1984 I. Call to order II. Roll call III. Public hearing A) CASE 84-098. An appeal from an administrative decision in accordance with Section 17.68.020 of the Borough Code ordering the discontinuation of construction or other preparatory activity leading to an unlawful use of land or structure (17.75.0)0 A.3.); and A request for a variance from Section 17.36.070(C) of the Borough Code (Repairs and Maintenance) in order to provide relief from the administrative decision to permit the construction of a third -story addition that would increase the cubical content of a nonconforming structure. Lots 30 and 32, Block 19, Kodiak Townsite Alaska Subdivision (Joe Perrozzi). IV. Audience comments V. Adjournment t KODIAK ISLAND BOROUGH PLANNING AND ZONING COMMISSION SPECIAL MEETING MINUTES 1AUGUST 6,-..1984 CALL TO ORDER The Special Meeting of August 6, 1984 was called to order by Chairman Gregg at 7:32 p.m. in the Borough Assembly Chambers, Kodiak, Alaska. II ROLL CALL Commissioners Present: Ken Gregg, Chairman Virginia Crowe Marlin Knight Tim Hill Dan James Steve Rennell Others Present: Linda Freed, Planning Director Bud Cassidy, Assistant Planner/ Zoning Officer Cathy Kester, Acting Secretary Commissioners Fred Patterson was absent and excused. III PUBLIC HEARING A) CASE 84-098.' An appeal from an administrative decision in accordance -with Section 17.68.020 of the Borough Code ordering the discontinuation of construction or other preparatory activity leading to an unlawful use of land or structure (17.75.010 A.3.); and A request for a variance from Section 17.36.070(C) of the Borough Code (Repairs and Maintenance) in order to provide relief from the administrative decision to permit the construction of a third -story addition that would increase the cubical content of a nonconforming structure. Lots 30 and 32, Block 19, Kodiak Townsite Alaska Subdivision. (Joe Perrozzi) Commissioner Hill asked for and was excused from sitting on the Commission due to a conflict of interest in Case 84-098. Staff had no additional information and no public hearing notices had been returned. CHAIRMAN GREGG closed the Special Meeting and opened the Public Hearing. MR JOE PERROZZI, applicant, spoke in favor of the request. Mr. Perrozzi outlined some of the sequence of events for the Commission. He noted that Mr. Tim Hill had shown him the house in September 1983. After seeing the house, he talked to the Borough Planning Department regarding the requirements for a third -story addition and was advised that as long as the addition was under the height limitation of 35 feet, he would not need a variance. Mr. Perrozzi then proceeded to buy the house and obtained a building permit to construct the addition. He discussed the addition with several of his neighbors, and although some were unhappy about it, they recog- nized his right to proceed with construction. Mr. Perrozzi felt staff's recommendation was "prejudiced" due to the fact that Commis- sioner Hill was the major complainant in the case. MR. TIM HILL, complainant, spoke against the request. At the time Mr. Perrozzi was looking into purchasing the home, Mr. Hill had advised Mr. Perrozzi that he would need a variance before making any additions to the house. He told Mr. Perrozzi that he was a Planning and Zoning Commissioner and because of the variance process and his position on the Commission he would be made aware of any additions to the structure. When Mr. Hill had been told by neighbors that Mr. Perrozzi was going to add another story onto the house, he didn't believe it and didn't bother to ask Mr. Perrozzi if there was going to be an addition constructed since he knew a variance would be required. Later, when building materials were moved onto the lot, Mr. Hill asked staff to investigate whether or not Mr. Perrozzi had a building permit and could build an addition. After some investi- gation into the matter, Mr. Bud Cassidy (the zoning officer) con- tacted Mr. Perrozzi and advised him that there was a problem with the addition and the building permit Mr. Perrozzi had been issued. Mr. Hill later saw Mt. Perrozzi and also advised him that another addition would require a variance even though he had been issued the building permit and that someone in the Zoning Office had made a mistake. Construction continued on the addition and Mr. Hill kept the city and borough advised as to what was happening. Mr. Hill explained to the Commission that the way the house sits on the lot it did not meet most of the setbacks and also explained the characteristics of the surrounding neighborhood. Mr. Hill noted that six homes in the area would have their views damaged by the addition to Mr. Perrozzi's home, and the addition would affect the neighboring property values. Mt. Hill informed the Commission that the addition, which now blocked the view of his home, had caused him to lose the sale of his house. He was selling his house because his family was growing, he needed a larger home, and he realized that he would not be able to add on to his present home on Cope Street due to its nonconforming status. CHAIRMAN GREGG asked Mr. Perrozzi if the house was being used as a duplex and what the dimensions were of the two units. Mr. Perrozzi responded that the main level of the duplex was about 860 square feet and the efficiency unit was about 300 square feet. JULIE HILL, adjacent property owner, spoke against granting the request. Ms. Hill felt that part of the reason for a lack of response by the neighbors to the public hearing notice may be that many of the homes are occupied by renters who may feel they don't have a say in the issue because of their rental status. She had realized that the Perrozzi's intended to remodel the house in some manner, but was never informed by the Perrozzi's that they were going to put on a third -story addition. Ms. Hill had expected to hear through the Planning Department if any additions were going to be constructed because she knew the Perrozzi's would need a variance for this kind of construction. Ms. Hill stated that this issue was a "bureaucratic problem" created by the government (in issuing the building permit) and now both parties are suffering because of the error made. There being no further public testimony, CHAIRMAN GREGG closed the Public Hearing and reconvened the Special Meeting. Commissioner Knight commented that it was not necessarily the Planning and Zoning Commission's purpose to legislate "views" as had been recommended by staff as a finding of fact. Some discussion followed by the Commission as to how "view rights" related to this issue and whether it should be considered as one of the conditions for granting a variance. Other comments on the issue made by the Commission included protection of neighborhood properties from further infringement of nonconforming homes and the extent of improvements that should or could be made to nonconforming structures. COMMISSIONER RENNELL MOVED TO AFFIRM THE ZONING OFFICER'S ADMINISTRA- TIVE DECISION ordering the discontinuation of construction or other preparatory activity leading to an unlawful structure since building permit #5131 is null and void per Section 17.03.060 of the Borough Code. The motion was seconded and CARRIED by unanimous roll call vote. COMMISSIONER CROWE MOVED TO ADOPT AS FINDINGS OF FACT: 1. Whereas, Section 17.36.070C, states "Repairs and Maintenance. On any nonconforming structure or on any building devoted in whole or in part to any nonconforming use, work may be done in any period of twelve consecutive months on ordinary repairs, or Special Meeting August 6, 1984 on repair or replacement of nonbearing walls, fixtures, wiring, or plumbing, provided that the cubical content of the building as it existed at the time of passage or amendment of the ordinance codified herein shall not be increased;" and 2. Whereas, Section 17.03.060C of Borough Code states that "any building permit issued in conflict with this title is null and void. " 3. Therefore, building permit #5131 is null and void, since it conflicts with Section 17.36.070C of the Borough Code. The motion was seconded and CARRIED by unanimous roll call vote. Discussion followed by the Commission and Mr. Perrozzi as to working out some type of compromise in the granting of a variance for a new roof. COMMISSIONER RENNELL MOVED TO GRANT A REQUEST FOR A VARIANCE from Section 17.36.070C of the Borough Code (Repairs and Maintenance) in order to provide relief from the administrative decision to permit the construction of a third -story addition that would increase the cubical content of a nonconforming structure. Lots 30 and 32, Block 19, Kodiak Townsite Alaska Subdivision; 307 Cope Street. The motion was seconded and FAILED with Commissioners James and Knight voting YES. COMMISSIONER CROWE MOVED ADOPT AS FINDINGS OF FACT: 1. There are no exceptional physical circumstances evident to allow the variance request to be approved. 2. The impairment of view constitutes prejudice to adjoining properties, and other properties in the neighborhood would thus be prejudiced by a granting of a variance for the construction of a third -story addition to the existing structure. The motion was seconded and CARRIED with Commissioner Knight voting NO. COMMISSIONER CROWE MOVED TO GRANT A VARIANCE from Section 17.36.070 to permit the construction of a pitched roof to be added to the roof line of the existing structure with a 4 to 12 roof pitch ratio. The motion was seconded and CARRIED with Commissioner James voting NO. COMMISSIONER CROWE MOVED TO ADOPT AS FINDINGS OF FACT: 1. General maintenance of the building, specifically the roof, requires replacement; not allowing a pitched roof would result in unnecessary hardship; 2) Granting the variance will improve the existing structure, and it is the purpose of the Planning Commission to encourage improvement of nonconforming structures that need repair; and 3) To provide some relief from the administrative decision of the Planning Department. The motion was seconded. Commissioner Knight asked that the findings of fact be further developed for the next meeting and Commissioner Crowe withdrew her motion. COMMISSIONER KNIGHT MOVED TO TABLE THE FINDINGS OF FACT until the regular Planning and Zoning Commission meeting on August 15, 1984. The motion was seconded and CARRIED by unanimous voice vote. Staff was then directed to develop findings of fact for the Commission to review and adopt at their next regular meeting. IV AUDIENCE COMMENTS Mr. Perrozzi stated that the pitched roof did not satisfy his needs and that he would appeal the Commissioners' decision to the City Council. Mr. Perrozzi reiterated that he thought staff's Special Meeting August 6, 1984 recommendation was "prejudiced" and that the Commission's decision was also "prejudiced" because the complainant in the case was a Planning and Zoning Commissioner. V ADJOURNMENT CHAIRMAN GREGG adjourned the special meeting at 9:05 p.m. KODIAK ISLAND BOROUGH PLANNING AND ZONING COMMISSION By Ken Gregg, Chaim ATTEST: DATE: 8" I s"87 Special Meeting August 6, 1984 j PLANNING AND ZONING COMMISSION PUBLIC HEARING ON AN APPEAL FROM AN ADMINISTRATIVE DECISION AND A REQUEST FOR A VARIANCE LOTS 30 AND 32, BLOCK 19, KODIAK TOWNSITE ALASKA SUBDIVISION JOE PERROZZI The above-cited special hearing was held oncAugust- 6;=-T9WlR in the Kodiak Island Borough Assembly Chambers, 710 Mill Bay Road, Kodiak, Alaska. The special hearing was conducted by the Kodiak Island Borough Planning and Zoning Commission, Mr. Ken Gregg, Chairman. CERT I F I CAT E THIS IS TO CERTIFY: That the Public Hearing in the matter of: AN APPEAL FROM AN ADMINISTRATIVE DECISION AND A REQUEST FOR A VARIANCE LOTS 30 AND 32, BLOCK 19, KODIAK TOWNSITE ALASKA SUBDIVISION JOE PERROZZI was held as herein appears and this is the original verbatim transcript thereof. KODIAK ISLAND BOROUGH Cathy Kester, Secretary� Page 2 Case 84-098 Verbatim PLANNING AND ZONING COMMISSION MEMBERS AND KODIAK ISLAND BOROUGH STAFF Commission: KEN GREGG, CHAIRMAN STEVE RENNELL VIRGINIA CROWE DAN JAMES TIM HILL MARLIN KNIGHT Staff: LINDA FREED, Director, Community Development Department BUD CASSIDY, Assistant Planner/Zoning Officer Community Development Department, CATHY KESTER, Acting Secretary, Community Development Department Page 3 Case 84-098 Verbatim PROCEED I N G S CHAIRMAN GREGG: At this time we will convene the Special Meeting of the Planning and Zoning Commission August 6, 1984. Can we have a roll call please. MS. KESTER: Mr. Rennell. COMMISSIONER RENNELL: Here. MS. KESTER: Mr. Knight. COMMISSIONER KNIGHT: Here. MS. KESTER: Mrs. Crowe. COMMISSIONER CROWE: Here. MS. KESTER: Mr. Gregg. COMMISSIONER GREGG: Here. MS. KESTER: Mr. Hill. COMMISSIONER: Here. MS. KESTER: Mr. James. COMMISSIONER JAMES: Here. MS. KESTER: Mr. Patterson. Quorum is established. CHAIRMAN GREGG: The first and only item on our agenda is Case 84-098; An appeal from an administrative decision in accordance with Section 17.68.020 of the Borough Code ordering the discontinuation of construction or other preparatory activity leading to an unlawful use of land or structure; and a request for a variance from Section 17.36.070(C) of the Borough Code (Repairs and Maintenance) in order to provide relief from the administrative decision to permit the construction of a third - story addition that would increase the cubical content of a nonconforming structure on Lots 30 and 32, Block 19., Kodiak Townsite Alaska Subdivision. Page 4 Case 84-098 Verbatim COMMISSIONE1_}_ILL: Mr. Chairman. CHAIRMAN GREGG: Mr. Hill. COMMISSIONER HILL: I have a conflict of interest. I request to be excused to step down. CHAIRMAN GREGG: You are excused. Is there anything addi- tional from staff, other than what we have in our packet? MS. FREED: No, we have no additional information for you. MS. KESTER: Any public hearing notices returned? CHAIRMAN GREGG: Did you receive any public hearing notices back? MS. FREED: No we did not. CHAIRMAN GREGG: When were the public hearing notices mailed? MS. KESTER: July 31st. MS. FREED: July 31st, which would have been Tuesday, I believe. CHAIRMAN GREGG: At this time we will recess the regular meeting; open the public hearing. Anyone wishing to speak for the request? Mr. Perrozzi. MR. PERROZZI: (not discernible) since uh basically (not discernible) my wife, the Hills here, and the other gentlemen behind us. Uh.. CHAIRMAN GREGG: Could you move the microphone over there a little. MR. PERROZZI: Okay. Basically what I would like to do is just base a chronological sequence of events as the way we see them. As according, you know, to what the uh staff has drawn up here. On>September 15th of 1982, my..I looked at the uh duplex that's in question. And uh was shown that house by Mr. Tim Hill. Page 5 Case 84-098 Verbatim After looking at ._.s house, I went up to Plai ng and Zoning to inquire as to what would be the necessary steps to put on a third -story addition. At that time, I was informed that if I met these height requirements and kept it under 35 feet that no other variance was required. Twenty-second of September I entered into a purchase agreement to buy the house with the owner in Seattle. On August 5th I applied for a peLmit and was granted.. granted one or given one for the additional floor. Numerous times I've discussed this addition with neighbors and everyone that was concerned or would be affected by the addition. Some were unhappy with it, others said they felt we had to to what we had to do and could do it. I recently read staff's recommendation to the Commission here and basically feel it's prejudiced because there is a Commissioner that's..uh..is the major complainant on the..in the issue here. Uhm..we bought the house; it wasn't adequate for our needs; we felt the addition would be necessary for us to continue to live in that house with our family; and too uh we needed the room. I followed every course that I felt was, necessary to do it and was informed that I could do..do so. And uhm that's basically all I have to say. CHAIRMAN GREGG: Any questions? Seeing none, is there anyone else wishing to speak in favor? Seeing none, anyone opposed? MR. HILL: Do you want us to sign in? CHAIRMAN GREGG: Doesn't need to be. MR. HILL: Tim Hill, I'm the complainant. Uh..I did show the house to Mr. Perrozzi. I was landlord of the..of the struc- ture for two years and I know a lot about the structure. And Mr. Perrozzi was interested in buying the dwelling. I had no prob- Page 6 Case 84-098 Verbatim lem. Uh..I show- it to him; we stood in th' fiving room, or in the dining room then, and uh he gave intent that he would..that he would go ahead and put an addition on or build out, do a few other things with the structure, and I informed him that it would need a variance. And uhm we discussed a few other little items, and then I told him I was a Planning and Zoning Commissioner. And that was let go. Uh..it was acknowledged that I was a Commissioner, but he was aware that if he was to do anything with the structure it would require a variance and I as a neighbor would be informed of..of anything that was going to be..increase on the structure. So..I'll let the whole thing go and uh Mr. Perrozzi started doing his foundation in the rear. I had no problem with that, it needed a new foundation. Uh..it needs a lot of things on the house. And then I heard that, from the neighbors, that he was gonna put a second story up. And..well I didn't believe it, and I don't go and ask Joe if he was going to put a second story up. And surely I would uh not..I would be extremely opposed to a second story because it uh blocks my view. So..uh..allof a sudden there was some roofing material, shing- les, so I knew there was going.to be not a flat roof at all. And there would have to be a gable on there or hip roof. So then I asked..a few days passed..and then we had a work session..or the meeting and I asked Mr. Cassidy "I think that we got a problem here." You know, asked him, I asked Linda Freed once at the beginning of the meeting and I asked Bud about four or five, six, seven times during the meeting, after the meeting. You know..I kept hounding him, you know, "what is it, there's got to be something wrong here. Does he have a building permit, let's check this thing out." And..uh..he checked it out and he called Page 7 Case 84-098 Verbatim Mr. Perrozzi and "we've got a problem , and I don't } think you should begin your structure." And I saw Mr. Perrozzi at the bank, the following day, and uhm Joe appeared to be very concerned, that the back wall was up. And knowing that he already had had a telephone call from Bud. And, well, "we'll just..we'll just shine it off a little bit. Tomorrow's Saturday, we'll go ahead and continue building." And I told him "I wouldn't do that, you know because you need a variance. Whether you got a building permit or not, you know, you need a variance. It's a nonconforming lot, somebody.. somebody missed up here in the..in the Zoning Office." So uh Sunday it rained; Monday it rained; Tuesday they were up on the roof and I kept, you know, John Sullivan and Bud Cassidy informed of everything that was going on. There was more people up on the roof on Tuesday and then Wednesday night we had our work session and on Thursday he was given a uh a cease and dismiss immediately. And he continued to work; on Friday there..he was given a court order (I didn't read through this yet) to cease and dismissed; and Saturday they worked. There was a person up on the roof on Sunday for a short time and uh I don't remember if anyone was working on Monday or not; and then on..then on Tuesday he had to go to court and there's not been not one nail or one board moved since then. Uh..it does not meet the front yard setback; it does not meet the south yard setback; it does not meet the rear yard setback. Its..the lot..the two lots combined are 3200 uh square feet. It is..it is an extremely small lot. What makes the lot look bigger is because the structure to the north is a very uh narrow lot and the structure basically sits on the lot lines. And uh the structure in front is sitting on my property. Mr. Perrozzi's' Page 8 Case 84-098 Verbatim property is invol,. 'i with my property because: Ahere my bulkhead is extends about another two feet or three feet farther into what appears to be Mr. Perrozzi's yard. Uh..all the structures are small. All the lots are small and uh behind us uh there's (one, two, three, four) four structures that are uh I would say between five and six uhm hundred square feet. And they all sit on small lots. And the view, you know, isn't or can not really be the issue here, but is is in a way because it affects six houses' views. And these people with the six houses can't do anything because they are all on nonconforming lots too. And most of the structures are sitting on lots lines, too close to the lots lines. And we try to maintain the..the original Kodiak Townsite up there. And to allow, you know, a second story to go up or a third story where it blocks the people's views and the houses aren't in tip-top shape, except for a few, all it does is lower the property value on them. And..and the houses aren't going to be worth anything. Neither will the property. I do have some pictures here which I'll pass around. And these photos were taken before the structure. Uhm..Bud has some after the third story was going up. And the interpretation on the uh building permit is, you know..several people read it and get different interpretations. And I also spoke with the person who was involved with a case similar...similar to this and this was suppose to have been resolved so this can not happen again, uh..according to..or for the code to have uh if you get a cease and dismiss you know, or if you...if you appeal an administrative decision where you're not allowed to continue building and also building in a small area of the original Kodiak Townsite. But, nothing ever got up to Borough Assembly or City Council. So..but Page 9 Case 84-098 Verbatim I was informed tt.c there was a folder...you' `uldn't find it? was informed that there was a folder and that it was sitting on the Manager Phil Shealy's desk at one time, and it was from Will Walton. But since it hasn't been passed around. I don't think I have anything further. COMMISSIONER CROWE: You uh mentioned that it uh decreased your property value, do you have any..uh.. MR. HILL: My appraiser has not given me another appraisal yet. He did not want to give me another appraisal until he found out what happened at this meeting here. And if its going to go on to the City Council. You know, if we're going to have attor- neys involved and stuff like that. Right now I have not hired an attorney. But I did lose the sale of my house..uh..because of this, and I had several other people interested in my house who haven't even come up to ask me about buying my house yet because they know the structure's there. I do have a question on uhm..of Bud, under your recommendation, number two. Uh.."The pitch of the roof should be no greater than the roof that is currently under construction allowing eight -foot ceilings on each of the existing two stories, but adding no new story to the structure." If we've got eight -foot and..uh..I was on the roof with uh Mr. Perrozzi, I believe that Friday evening that he and I were at the bank together, uh he told me that what he was going to do was cut down about two feet to the roof line..or the ceiling line, once the structure was there and then go up. Is this what you're counting from, two feet, and if we're talking uhm say a hip roof of..a four -foot hip roof..go two feet plus another two feet? MR. CASSIDY: What I was trying to get at..it is my under- standing that the bottom floor is not quite eight feet and Page 10 Case 84-098 Verbatim the middle, secorr't. z=loor, is ten feet and this-would allow eight-foot ceilings on both the bottom floor and the top floor. Uh..basically..it's also my understanding that the roof line would begin at a lower point than the top of the..the top of the present ten floor? ceiling because of that extra room. MR. HILL: How high are we talking the roof to be? "The pitch of the roof should be no greater than the roof that is currently under construction." MR. CASSIDY: I guess what I'm.. MR. HILL: How..what's..when...where's the gable going to be? Is it going to be uh uh sixty feet down, if its a four-foot hip roof, then you're..its going to be two feet higher. It would be two feet cut and then two feet higher. MR. CASSIDY: Whatever the eight-foot ceilings..whatever that would work out to with eight-foot ceilings on the first floor and the second floor. MR. HILL: What..what does that work out to be? MR. CASSIDY: Approximately the same is my understanding MR. HILL: A four foot.. MR. CASSIDY: Right. MR. HILL: It can not be no greater than a four-foot hip roof? See I have no problem with that as long I know what we're talking about here. If he's going to go... Your hip roofs four feet now? MR. PERROZZI: Yeah. MR. HILL: So if he goes down to four..two feet and then its two feet, four-foot hip roof, I have no complaint with that. But the thing about it is, you know, Mr. Perrozzi says that he uhm he's got a two bedroom on the main floor and they have a Page 11 Case 84-098 Verbatim third child and tais..and they need to uh exr�.d. Well, I..I have a two bedroom and I have a third child now, and I need to expand but there's no place to do it. You know, and its nothing right for the hill. And so I'm selling it and moving onward. Do you have any questions? CHAIRMAN GREGG: I have a question for Mr. Perrozzi. Is the house being used now as a duplex? MR. PERROZZI: Yes. CHAIRMAN GREGG: And do you..can you give me just an idea of how many square feet there are in the area that you occupy and the other unit? MR. PERROZZI: We have about 860 square feet on the main level and probably about 300 feet on the lower, efficiency level. It's deceiving looking from the front the amount of space in the lower level because of the mountain there and you're into solid rock past that..that first window there. So it's a small, efficiency apartment. It's not, well obviously not, a full first floor. Uh..I have a question for the Commis..for staff here. Were these mailed out to all the other neighbors? Was there any other response from any of the other neighbors? Any written response? MR. CASSIDY: Maybe it would be important to find out when you received your notice Joe (not discernible). MR. PERROZZI: I got it the first day. You know, in that night's mail. COMMISSIONER CROWE: How many of the lots around you are rentals? Are you aware? MR. PERROZZI: Pardon? COMMISSIONER CROWE: How many of the lots around you are rentals? Page 12 Case 84-098 Verbatim r - MR. PERROZZI''e-`We talked to everybody d14:ctly involved with..behind us and whether or not it needs mentioning is uh some good neighbors of ours and the Hill's, the Cratty's, live direct- ly behind us. And when we informed them as we did everybody else that we were going to build onto the second floor, that they opted to sell their house. And we..or are..are rentals? COMMISSIONER CROWE: Uh hum. MR. PERROZZI: Oh! That I don't know. I guess next door, all along the..the street side they have rentals. That I know of. Except for the small... COMMISSIONER CROWE: Not have rentals. I wondered how many of the houses..there's a lot of little houses in that area and I think that several of them, if not the majority of them are rentals. Do you know if it's true or not? MR. PERROZZI: Oh, that are rentals. You said "had" rentals. Uhm I believe there's a good portion of them that are rentals, of the smaller ones. In fact, (not discernible), but most of the people that I talked to were renting up on the hill. More primary residences is right on Rezanof, that face Rezanof. And the ones back up on Cope Street are more rental property. Uh..just basically getting back to what I had to say. Uhm..we talked to them, the Cratty's, Dana and John Cratty, and they opted to sell their house and Dana said, "Well, you know, obviously (not discernible) we appreciate the fact that you did come to talk to us before you made your decision, before you went ahead" And they felt that you had to do what you had to do. I did inform them as I informed everybody else that we had checked this out with Planning and Zoning and that a variance wasn't needed at the time and we had the building permit that they had Page 13 Case 84-098 Verbatim Br given us at that`cr1ne. So, the reason I am __dhasizing this is the fact that we did not, I repeat did not, try to conceal the fact that we were building this third story, additional story from the public or from our neighbors. And I would..I..Tim had every right to be mad if I felt that I had all of a sudden would throw this up right in front of them. But I do believe he knew. I believe he knew and he was aware of the fact. So..you know, we've got a considerable expense in our house. If we talk depreciation, I have to talk depreciation of my house without this third story. And what affect that'll have on my property value. And I paid a lot more of my house than Tim paid for his when he bought it. Tim.. MR. HILL: (from the audience and not discernible) MR. PERROZZI: Well, okay. Let's..let's just talk present value. At the time when I did buy which was just a few years ago..a couple of years ago..the existing price on the house without the addition was..would have been too much money for it. I bought potential value. I bought potential value with an existing..or with another story. That's what I purchased. Without that then I paid, as Tim is fond of saying "paid too much." Nobody's coming forth to say, "Okay, well since your property is depreciated cause the fact you cannot build on an additional story, here's a check for x amount of dollars." I'm sure the present owner, or the person that sold it, would be laughing if he knew this was going on right now. Perhaps he does. Perhaps he knew. Tim was agent for him when he showed the house. I don't want to get redundant on the, you know, all these different facts and stuff like that. This is the way we feel, this is the why we've gone ahead. Page 14 Case 84-098 Verbatim CHAIRMAN GRE__.. Any other questions? Anyone else wishing to speak for or against? MS. HILL: I'm Julie Hill and there are several points that I'd like to make. First of all, uhm..in response to your ques- tion, Virginia, concerning the number of rentals. There are eight rentals on the hill in that area that I..that are..uhm directly involved in this. And uhm part of the reason I think that there's little public response in terms of your letters being sent out, is because of the large number of rentals, and that people feel that when they are in a rental position that they don't have as much say as an owner would have. So I think that's a large portion of your lack of response. I did, however, talk to a few of the neighbors and uhm I think what..what we're seeing here is probably..oh a problem of communication in that, you know, when Joe and Jane first bought that house they talked about remodeling. We were glad; the house definitely needed to be remodeled. Everyone on the hill, you know, felt that all those houses up there have had to have some remodeling. And you can go through and drive through and tell which ones have and which ones haven't. And so uhm the question is in terms of what kind of remodeling was going to be done. And when we talked about it, you know, we see each other as neighbors, we're not close friends, but we do see each other as neighbors and..and converse as neighbors and enjoy each others company in that capacity. So when we did talk about it uhm there were lots of different things tossed around. One day I sat down there and there was some discussion in terms of expanding out to the side, instead of up, you know, expanding out to the side and..and putting in additional room in that way. Uhm for that reason, Page 15 Case 84-098 Verbatim since there was nuL.aing clear...I know Joe n -Jr came to me and said he's going to put a third story on that house. Part of the reason that we did not pursue in terms of exactly "what are you going to do and why are you remodeling?" is because we knew that that that lot was a nonconforming lot. I mean Tim has been on P&Z long enough to have some information at hand and so we knew if there was going to be uhm additional space added to that house it would need a variance. And we would have the opportunity to speak at that point. I don't..you know, that's why we don't go up and say to our neighbor "Well, what kind of remodeling are you going to do?" You know, since we already know, or thought we knew, that it would be necessary to have a variance. You know, so if there was a problem with communication that may be. That's how most of these kinds of situations turn out. We felt that we had firm, true information in terms of additions to nonconforming lots, you need a variance. So that's why uhm we felt we would have an opportunity to get involved in this later if..if the situation would arise. The other thing that I think is important to point out is that uhm this..this problem I see is basically a bureaucratic problem. The government made the mistake here. You know, uhm Perrozzi's were issued a build..a building permit for a nonconforming lot by someone that the..that the government employed. And now, we were basing our information on Planning and Zoning which is an extension of the government and..and the information- that Tim knows as a Commissioner. And so it just seems to me that..that the problem is a result of an error that was made and now both parties are suffering. We're really suffering in that we have lost the sale of our house. We're in the process of building a new house that is based on the funding Page 16 Case 84-098 Verbatim that we would hat 'received from selling our r='her house. You know, so that's fairly substantial suffering. Perrozzi's are.. are, you know, have right now, since they chose to go ahead and build, an expense involved in that materials and also their initial expense as they claim uhm when they first purchased the house that they thought they would be able to do this. Uhm.. neither family has enough space in their house. We have chosen as a result of having..of not having enough space, to get a new house because there's no more space on that hill to build. You know, we..if we chose I suppose we could come to you and ask for a variance and put another floor on our house, but I think that part of..uhm I feel after living here for twelve years a certain responsibility towards Kodiak, in maintaining some of the charm of the community. And I think that that whole hillside does play a part in the uhm charm of the community. That there are people who choose to live in smaller homes like that. Who enjoy living downtown, who enjoy the view. Part..I think that..I know that the Commission does not like to get involved with placing a monetary value on view; however, I think that it is important to consider that one of the real assets to living iri that..that area of town is the view. You could go through and you could ask most anyone on the hill and say "Why do you choose to live here?" and they're sure not going to tell you "cause of the road." You know, they're going to tell you it's because of the view. They like the view there. Now our view with the house has been hurt as a result of this. As a result of what appears to be a bureau- cratic error. Now I'm..I'm under the impression and I may be wrong, but at the last meeting that I was at that somewhere in the Code that you operate from, uhm, if there is an error that Page 17 Case 84-098 Verbatim the building insp_=tor did issue a building _ mit that was in error, that the Planning and Zoning regulations would take precedence. Is that true? CHAIRMAN GREGG: There is a section of the Code that states that a building permit issued in error is null and void. MRS. HILL: Yeah. So I think that uhm that there are several different factors that need to be considered in this. Uhm...you know, I'm..I'm not going to get into saying "Well, we thought this and they thought that" because that's simply going to be a value judgment on your part. I think that you need to look at it. And I think that you need to look at it in terms of..of problems that could reoccur. You know, uhm its not that dissimilar from other cases that you've..that you've been uhm faced with in the past or that the city has been faced with in the past. Thank you. CHAIRMAN GREGG: Anyone else wishing to speak for or against? Seeing none, at this time close the public hearing and reconvene the regular meeting. What are the wishes of the Commission? COMMISSIONER KNIGHT: I'd like to ask a question of staff. Uhm..what's the uh under findings of fact, item two, how you feel that other properties would be prejudiced by granting a variance? MR. CASSIDY: That's strictly one of..of the testimony we talked about earlier...was view and the prejudice that would be involved by.blocking one's view. COMMISSIONER KNIGHT: So staff is going to uh suggest that we possibly start legislating that uh people have a right to a view? And I..I have a bunch of trees in front of my house and Page 18 Case 84-098 Verbatim the borough just _.ently knocked them all dw.. to put a road through. I'm just wondering, uhm, do I have a right to those trees? As a view to those trees as opposed to the uh the street. I'm just wondering whether or not that's a valid.. and uh some- thing we really want to establish as a finding of fact. And to establish a precedent here of uh legislating that people have a right of view and that uh that's the purpose of the Planning Commission to see that they do. MR. CASSIDY: I think you'll find in case law, Marlin, that there's a lot of credence put on views and not only views but light uh and..and..in some examples anyway of case law you will find that..that view is very important in making a decision. COMMISSIONER KNIGHT: Can you give an example of a..(not discernible) MR. CASSIDY: I could uh, if you feel its appropriate I could go look in case files for it. COMMISSIONER KNIGHT: Well I know that—like I said at the work session, that this came up on the senior citizen center and there was apparently a law suit generated uh because of that same issue. And I am aware that there are several other pieces of property up on that hill that have been built in front of. Uh, you know, even if they're conforming..let's say that someone builds a conforming.. can we..do people have the right to come in and..and uh protest that because their view is blocked? I'm not sure that's a..that's something we want to start establishing. CHAIRMAN GREGG: I think..I think that you're talking two different things here. One, I would say that uh impairment of that view does diminish the value of the property. COMMISSIONER KNIGHT: Is that a purpose of the Planning Page 19 Case 84-098 Verbatim Commission? To CHAIRMAN GREGG: That is one of things.. COMMISSIONER KNIGHT: '..maintaining property values? CHAIRMAN GREGG: ..that is one of the things we are to consider. I would say that is prejudice to adjoining properties. That isn't what would..what would constitute it. COMMISSIONER JAMES: I think it speaks more to safety and welfare though than..than land value. CHAIRMAN GREGG: Because that is specifically mentioned elsewhere. MS. HEED: The actual code section as a condition of the variance reads "that the granting of the variance would not result in material damage or prejudice to other properties in the vicinity, nor be detrimental to the public's health, safety, or general welfare." COMMISSIONER KNIGHT: Right. MS. FREED: It's a matter, I think that this was brought up at a previous Commission meeting, as to how you do indeed inter- pret those conditions and whether you as a Commission feel that the variance that is being requested does indeed meet the condi- tions or doesn't meet the conditions. Staff can only suggest what we may believe or feel are..whether the conditions are met. And in this case, Bud has suggested that indeed the granting of this variance would result in material damage or prejudice to the other properties. And I would suggest that is borne out somewhat by the testimony that you've received. But, again, the Commis- sion is flexible in their determination of what you believe material damage or prejudice to be. If you do not believe that the loss of a view or the loss of the ability to have that Page 20 Case 84-098 Verbatim property apprais(_.-it the same value because'.X the view, is not material damage or prejudice to the property, then indeed you should consider that the variance meets the conditions. That's why we have a Commission is to decide in their best wisdom whether these conditions are met. COMMISSIONER CROWE: The other thing 1 think uhm may not have..may not relate directly to this, but in a way maybe it does, uhm Mr. Perrozzi did follow the right steps and..and I don't think any of us are saying he didn't. But uhm I would say what assurances do uh the surrounding property owners have by ordinances that they think protect them? When you buy a piece of property uh.. those lots are obviously small and you feel or find out that they can't be enlarged upon because they..the majority are nonconforming, then you feel what you're buying is..every- thing is going to stay the same. Your view, your..so the set- backs are not quite right, but you know that when you buy the property, and you're willing to uhm live with what you're buying as it is at the time you buy it because you feel that the ordi- nances protect you from further infringement. COMMISSIONER KNIGHT: Well, I don't necessarily uh agree with you because I don't think that uhm anything is as static as uh..nothing ever changes. There's always change; it's a natural process. I looked at this part of the code and I have a similar problem that I voiced previously on the nonconforming lots having uh an ownerthat has uh contiguous lots and not being able to sell one..or not being able to build on one lot; however, if he turns around and sells it to a neighbor, a neighbor can build on it. I real.. I'm trying to see the logic in that. What the purpose is. And I have a similar problem that's just been Page 21 Case 84-098 Verbatim brought to light in that uhm there was ._ me comment that those houses up on that lot, and ones that I looked at while I was up there, I would agree are not in tip-top shape. Some of them are probably thirty and forty years old; some of the oldest structures in Kodiak. And in my mind there is some real safety and health hazards up there because of the..the condition that they're in. Uhm..I can appreciate the uh comments made about maintaining the original townsite atmosphere and it does, you know, in fact the house that the Hill's live in I think is one of the nicest houses as far as maintaining the atmosphere but still being improved upon. But I cons..want to consider here what our objective is as a Planning Commission. In my mind I would think that one of our objectives, particularly in nonconforming uh properties because they're so uh abundant here in Kodiak, is that we should have a policy of improving those rather than restrict- ing them to stay the same, which I see this ordinance as. In other words, you can't do anything uh short of doing a few minor repairs to really improve those properties without coming through a variance process. And I..I..see..wonder whether or not we want to look into this code and rather than having as our main object- ive of uh as one of encouraging improvements to those nonconform- ing structures as opposed to what I feel right now is a policy of restricting the improvement of those structures. You can't alter them, you can't uh increase them. A lot of times, just what the Perrozzi's...and Perrozzi's house is exactly a uh a good example of a unit that I don't think anybody, and themselves included, uh doesn't need improvement. And by purchasing that and willing to invest in that property, and uh make it a nices structure, and possibly even a safer structure that what it is now. You know, a Page 22 Case 84-098 Verbatim r person normally �,,._t doesn't go in and rewire _t without having to be able to'add value to the property. Uhm I'm just wondering if it shouldn't be a policy here, looking at this particular section of the code, of one of trying to encourage the improve- ments of those lots. I..I..you know, looking at it as a variance on a case by case basis, but taking into consideration that people are going to improve their properties, improve those houses up there, because right now we're going to maintain to see them I think there's a lot of them up there that have broken windows and boards in front of them and uh there's a lot them in my mind are uh possibly fire hazards and will continue to be so. COMMISSIONER RENNELL: Okay, uhm, I have a question for Marlin. COMMISSIONER KNIGHT: Uh hum. COMMISSIONER RENNELL: Uhm in the staff report here itself it says "The intent of regulations dealing with nonconforming structures are to eventually eliminate such structures when their economic usefulness ends, and eventally bring any new structure into full compliance with the code." Which uhm in my mind bears out what you're saying. But this evening uh are we discussing new policy or are we discussing... COMMISSIONER KNIGHT: No, we're.. COMMISSIONER RENNELL: ..or their request for a variance? COMMISSIONER KNIGHT: I'm discussing my discontent with the way the present ordinance.. as they have in the past with the lot situation. But uh going back to the first comment. Could you restate the first comment you made? COMMISSIONER RENNELL: It's right in the staff report. COMMISSIONER KNIGHT: Go ahead. Page 23 Case 84-098 Verbatim COMMISSIONER :KNELL: "The intent of reL ations dealing with nonconforming structures are to eventually eliminate such structures.." COMMISSIONER KNIGHT: Okay..right there is where I want to stop because typically the way that happens is when structures burn..something does happen and it burns down, or if it's torched off purposefully. Uhm, so at that point in time...we have to wait for that time before these units are improved, with the present policy of this particular ordinance, and I'm not talking about changing the ordinance tonight on this issue, but I think that it's something that I want revealed in the record uh that I have a concern about uhm a policy uh that basically uhm..I don't think is for the betterment of the community. Because I think betterment of the community is to have a policy that improves the property that is now deteriorated uh and needs improvement. COMMISSIONER CROWE: Do you not think that the repair and maintenance uh aspect of this uh leaves..leaves credence to what you're... COMMISSIONER KNIGHT: No, because I think in most cases those have to be minor because again you can't do anything to alter...when you consider altering what is altering? To put a new roof line on, you know, like their situation. Now they could go ahead and take recommendations of staff, they're still increas- ing the cubical, you know, size of the unit. Uh.. COMMISSIONER CROWE: Because you're..you're considering that the attic that would come under (not discernible). COMMISSIONER KNIGHT: Now, I don't know, would,it? The question is yes, I guess. The question to it is yes. Uh..I'm just..want to throw out whether or not this uhm policy, you know, Page 24 Case 84-098 Verbatim for future we car: ..Lscuss at the work ses.6Ln tonight if you care or if you're not, but I think that it is appropriate to bring it up at this particular uh variance hearing. Because I think that uh rather than be concerned about maintaining property views as the purpose or objective of our Planning Commission or preserving ones view, you know if that was a big condition then I would suppose that there would be a lot of people whose views were blocked would be here. If that was a big concern. Happens to be one person. It seems to be a partial blockage not a full blockage as opposed to another house up there uh that Steve's familiar with the property - the big duplex in front of the white house, you know the one its.. COMMISSIONER RENNELL: Ryser's property. COMMISSIONER KNIGHT: Ryser's. You can go up and take a look at that and talk about a blockage of view, uhm. CHAIRMAN GREGG: However that is conforming with the ordi- nances. There's been no.. COMMISSIONER KNIGHT: Right..right, and that's where my argument is. It's whether or not uh is..is that a valid argu- ment? Is to take blocking ones view as a uh basis for the declining a variance. That's all I have to say. COMMISSIONER RENNELL: I have a question for Linda. In your experience uhm you know the whole issue of views and blocking of views uhm have you known of other cases and is it a standard policy for a Commission to consider this or not? MS. FREED: It's becoming something that not..not only is a aspect that is considered by the Commissions, it is indeed legislative. It is indeed part of zoning codes. And I..the ones that I am familiar with are down south. Uhm, particularly on the Page 25 Case 84-098 Verbatim west coast. Thos--4reas do legislate height —/They do it for two reasons as Bud commented, not only for view purposes but for solar heating. COMMISSIONER RENNELL: Yeah. MS. FREED: And for that aspect. And that requires a great deal of look at is used work in terms of what kind of side in terms of using the solar aspect yards you're going to for very regularly at least in California. enced directly with regulations that regulated heating. And it I have experi- for view, as well as for a number of other aesthetic considerations, in and around the suburbs of the city of Vancouver. And I would suggest that they have similar ones in the Seattle, as well, because they are concerned about it. And it's a concern that generally manifests itself in areas where indeed there is not much land and there is continuing development, and it's similar. Old areas that people would like to preserve those views. One other comment, or one other thing I would like to comment on, indeed the intent of a nonconforming section in the code is to identify those uses that no longer conform to the regulations because conditions and community desires have changed. And indeed to do what the community can to get rid of those uses. That's the whole intent of it. If the Commission wants to encourage, as Marlin suggests, the improvement of nonconforming uses; you don't need a noncon- forming use section in your code. That's the whole purpose for it. And I -think if you went back 1977, we cite a case where the request for a variance for this particular lot was requested to put in an addition adjacent to it rather than going up, going next door, and that was turned down for the reason that at time the code, although it was much smaller, was much stricter. And Page 26 Case 84-098 Verbatim it very clearly L.ted that nonconforming us`<_ shall not be added onto in any way that might prolong the permanencey of that structure. And that is generally a much more definitive section that is in a nonconforming use code. Frankly, our nonconforming use code is somewhat conflicting. And that is probably what has caused the problem that we're experiencing here tonight. The fact is that it says that a structure can exist as nonconforming as long..and it can be altered and enlarged generally as long as it doesn't increase the nonconformity, but there's that little caveat at the end of the section that says as long as you don't increase the cubical content. COMMISSIONER RENNELL: So in other words what you're saying is if we didn't allow anything it would be more consistent versus allowing some improvements and.. MS. FREED: Well, again that's why the variance procedure exists. To allow you, if in your wisdom you feel it's not going to be detrimental or it meets the..you know, that the criteria for a variance to indeed allow that. So generally that's what the intent of a nonconforming use section is. That's the purpose that's in the code. That's a reason the variance procedure exists is so that the Commission can decide whether they believe, within the framework of a specific case, that the structure could be allowed to be expanded or enlarged. But I think you'll find in most instances, and you know if Marlin is interested in looking at different places, I think you'll find the nonconform- ing use section fairly restrictive. They allow... COMMISSIONER KNIGHT: Well I'm familiar with Sausalito and uhm, you know, areas like that and I think that's what referring to. Where uhm very exclusive uh areas and a lot of those Page 27 Case 84-098 Verbatim possibly uhm the .'LJle zoning ordinances com_- Lnder uh possibly a question, you know, just with exclusionary zoning. You know, in a lot of areas like that. Uh, but I am familiar with areas. I think they are basically restricted to areas like south Sausa- lito, Tiburon, and ... COMMISSIONER JAMES: Personally I'm all for recessing to the back room and discussing this. CHAIRMAN GREGG: I don't feel that would be in order. COMMISSIONER CROWE: It would have to be for legal... COMMISSIONER JAMES: Oh, okay. COMMISSIONER CROWE: ..uh, I believe that that's the only reason. MS. FREED: It's a public meeting. CHAIRMAN GREGG: What I'd like to do; we have basically two questions. At this time I would like to consider the..the first part of the question which is whether or not we affirm the administrative decision. Uh, and it says "that the building permit is null and void." And I would entertain a motion or discussion. COMMISSIONER RENNELL: Mr. Chairman. CHAIRMAN GREGG: Mr. Rennell. COMMISSIONER RENNELL: I move to affirm the zoning officer's administrative decision ordering the discontinuation of con- struction or other preparatory activity leading to an unlawful structure since building permit X15131 is null and void per Section 17.03.060 of the Borough Code COMMISSIONER KNIGHT: Second. CHAIRMAN GREGG: Any discussion? Seeing none can we have a roll call vote please? Page 28 Case 84-098 Verbatim MS . KESTER: James. COMMISSIONER JAMES: Yes. MS. KESTER: Mr. Gregg. CHAIRMAN GREGG: Yes. MS. KESTER: Mrs. Crowe. COMMISSIONER CROWE: Yes. MS. KESTER: Mr. Knight. COMMISSIONER KNIGHT: Yes. MS. KESTER: Mr. Rennell. COMMISSIONER RENNELL: Yes. MS. KESTER: Motion carries. CHAIRMAN GREGG: Uh..do you feel that we need to make findings of fact in particular. .was the motion clear enough that we do not need findings of fact or do you.. MS. FREED: You need findings of fact. CHAIRMAN GREGG: In that case, I would like to suggest that: Whereas, Section 17.36.070 specifically states that..uh "On any nonconforming structure or on any building devoted in whole or in part to any nonconforming use, work may be done in any period of twelve consecutive months on ordinary repairs, or on repair or replacement of nonbearing walls, fixtures, wiring, or plumbing, provided that the cubical content of the building as it existed at the time of passage or amendment of the ordinance codified herein shall not be increased." Where is the tag on that? I'm looking for the section of the code that specifically says it may not be increased..the cubical content.. MS. FREED: 17.36.070C. CHAIRMAN GREGG: I was reading 17.36.040A. I don't find that particular piece of.. Page 29 Case 84-098 Verbatim COMMISSIONEROWE: (not discernible) i. nconsistent with this section which states.. CHAIRMAN GREGG: Oka;. All right, I'll find it, 17. COMMISSIONER CROWE: .040A? Is what you're looking for. MS. FREED: It's at the bottom of page two in the staff report. COMMISSIONER CROWE: 17.36.040A is not the repairs and maintenance section, right? MS. FREED: No, but it is indeed the second line of the last paragraph on page two, Section 17.36.070C.. CHAIRMAN GREGG: Okay. MS. FREED: ..is cited there. CHAIRMAN GREGG: I don't..I'll just have to turn to my section of the code in other words to.. MS. FREED: No, its in the staff report. Starts with the second line in the last paragraph on page two. "Repairs and Maintenance. On any nonconforming structure.." CHAIRMAN GREGG: Okay, "provided that the cubical content of the building as it exis..(not discernible) shall not be in- creased." Okay, I was right. COMMISSIONER CROWE: Which is 17.36.070C. MS. FREED: Yes. CHAIRMAN GREGG: Correct. Whereas 17.36.070 says that and the building permit was issued in conflict with that; and Whereas 17.36.060C states that "any..any building permit issued in con- flic.. conflict with this title is null and void" we find that that is the case. (Not discernible.) COMMISSIONER CROWE: That those are our findings of facts? CHAIRMAN GREGG: Yes. Page 30 Case 84-098 Verbatim 1. COMMISSIONEOWE: I would so move. COMMISSIONER RENNELL: I'll second. CHAIRMAN GREGG: I don't know how to make that more Any discussion? Can we have a roll call vote MS. KESTER: Mr. Gregg. CHAIRMAN GREGG: Yes. MS. KESTER: COMMISSIONER MS. KESTER: COMMISSIONER MS. KESTER: COMMISSIONER MS. KESTER: COMMISSIONER MS. KESTER: please. Mrs. Crowe. CROWE: Yes. Mr. James. JAMES: Yes. Mr. Hill. I'm sorry. Mr. Knight. KNIGHT: Yes. Mr. Rennell. RENNELL: Yes. Motion carries. clear. CHAIRMAN GREGG: Okay. The next item for consideration would be the variance. COMMISSIONER JAMES: Uhm..looking at these pictures of Tim's, I'm wondering if maybe some sort of a compromise can be worked out. Uhm..these pictures..a portion of the roof..a portion of the roof that was included was front south side I guess it would be. I'm wondering if maybe uh Mr: Perrozzi were to build on the rear end of the building another story in the rear end..maybe if it wouldn't obstruct the views of the people behind him as much. If possibly uh uh this may be a deck or something would be allowed on the uh..I guess it would be the east side of the building, the side bordering Rezanof. Something with open walls that wouldn't obstruct views. Page 31 Case 84-098 Verbatim COMMISSIONER .,LZOWE: I think there's en__oh area back. I'm..I'm trying to remember. COMMISSIONER JAMES: Well there is for uhm a small addition. COMMISSIONER RENNELL: Are you saying half of the length of the roof or.. COMMISSIONER JAMES: I would say half, yes, maybe 60 percent. COMMISSIONER CROWE: Do we have a..a copy of the uh building plan or anything? At..this type of thing is kind of hard to tie down. COMMISSIONER JAMES: I feel strongly enough about the booboos that both the former zoning administrator and the build- ing inspector have made that I would recommend to the Assembly that uh the Assembly would pay for whatever changes are necessary. COMMISSIONER RENNELL: City Council. COMMISSIONER CROWE: No it wouldn't be the Council that would be..they would be the appellant board. MRS. HILL: Can you please use the microphone Mr. James I can't hear you. COMMISSIONER JAMES: Yeah, I was saying that the I feel strongly enough that the uh uh whatever changes would have to be made that uh I feel that the City Council should pay for them. MS. FREED: Borough Assembly. COMMISSIONER CROWE: Borough Assembly. COMMISSIONER JAMES: The Borough Assembly. I was right the first time. COMMISSIONER CROWE: No the City Council would hear an appeal, but the Coun..the Borough would be the.. Page 32 Case 84-098 Verbatim CHAIRMAN GREI_J.. The Borough boobooed. COMMISSIONER KNIGHT: Yeah, the Borough boobooed. Excuse me. COMMISSIONER CROWE: And they'd love it. COMMISSIONER JAMES: But I do feel that a compromise could be probably.. could probably be worked out. Or at least considered. COMMISSIONER KNIGHT: Are you proposing that to the uh people? COMMISSIONER JAMES: It might be worth reopening the public hearing for? CHAIRMAN GREGG: Do we necessarily need to.. COMMISSIONER RENNELL: I prefer not to do something that people who were applying for their variance would rather not do at all, as we've done in the past. They're applying for this variance, they're not applying for Mr. James' compromise. COMMISSIONER KNIGHT: Well when a variance..when a variance is granted conditions can be applied. COMMISSIONER RENNELL: I understand that. COMMISSIONER KNIGHT: That's the prerogative of the Planning Commission. And I wouldn't oppose uh Mr. James' uh.. COMMISSIONER RENNELL: What Mr. Rennell is saying though is in the past we've applied conditions that uh.. COMMISSIONER KNIGHT: I understand, Dan. COMMISSIONER CROWE: Can I ask a question before..oh excuse me..before we uh prolong this aspect of it. One of the parts of our staff report uh address flat roofs and uh...Mr. Perrozzi you've had the opportunity to see..was that one of the reasons Page 33 Case 84-098 Verbatim you're putting a`pttched roof, is as it is ai,_.'essed in..in our staff report? MR. PERROZZI: (from the audience) Well, the decision on the hip roof was (not discernible) and the decision. Well, again, the flat roof (not discernible). COMMISSIONER CROWE: The roof as it exists now, but uhm if I understand in our report I almost get the impression that flat roofs are..are hard to maintain because of the nature of our..our weather. Are you..is that one of the reasons that you chose this rather that..because of the fact that you could not repair your existing.. MR. PERROZZI: (from the audience) Yeah, the fact of the amount of the inclement weather and (not discernible) the roof is (not discernible). COMMISSIONER CROWE: So possibly then what Mr. James is suggesting would be..can you do what you're suggesting? COMMISSIONER JAMES: There are ways of working it out, yes. So that you spoke..see if there was a deck on the front half of the building you could uh put slats..you could put slats on..and slope..slope the roof underneath the slats. COMMISSIONER CROWE: Because I would be open to some amount of compromise. I liked what Mr. uh Cassidy came up with, myself. But I can see what.. MR. HILL: (from the audience). Can I ask -for a point of clarification? Dan, what you're asking is to put a second story back here because of (not discernible). COMMISSIONER JAMES: Uh hum. MR. HILL: So you put a second story back here and a deck out here. Page 34 Case 84-098 Verbatim COMMISSIONERMES: Right. CHAIRMAN GREGG: No, the deck to the front. COMMISSIONER JAMES: Deck on the front. MR. HILL: That's right. Deck on the front and (not discernible). CHAIRMAN GREGG: That as I understand is what he was sug- gesting. COMMISSIONER JAMES: Right. MR. HILL: (From the audience) If you're going by my pic- tures you still..it still blocks the view because I have a panoramic view out of every window. (Not discernible.) COMMISSIONER CROWE: At what point would you think this could be.. COMMISSIONER JAMES: Do you have a picture? COMMISSIONER CROWE: I have a picture, all I have is here. CHAIRMAN GREGG: It's basically the same. (At this point, there was some discussion between Commissioner Crowe and Chairman Gregg, but it was not discernible.) COMMISSIONER CROWE: Are you totally uh dissatisfied with the uh suggested variance that the staff recommended? MR. PERROZZI: (From the audience and not discernible.) COMMISSIONER CROWE: Could I read it to you? MR. PERROZZI: Well, like I said, obviously (not discerni- ble) unless you have that experience to do that for me. COMMISSIONER CROWE: Unless I have the what? We did some.. CHAIRMAN GREGG; I think it could be summed up by basically saying that your existing roof line be lowered one story. That basically you put the roof that you are building uh on your existing.. other than.. Page 35 Case 84-098 Verbatim COMMISSIONElr -ROWE: Other than attic sr__e and a pitched roof that would uh be easier to seal. CHAIRMAN GREGG: More maintainable. MR. PERROZZI: I would like to receive a point of clarifi- cation from staff over here. At one point, Bud, the code basical- ly addresses these nonconforming structures to (not discernible). MS. FREED: There's no indication in the nonconforming use section that they are indeed suppose to be preserved. The section just says that if someone wants to preserve them there are opportunities to do just repairs and maintenance. The code clearly indicates..well, not quite as clear in this code as the previous code, but the intent of the nonconforming use structure ...section was to get rid of nonconfoLuling structures. Was to eliminate them or to bring them into conformance. A number of those in your area as well as in Leite Addition, the only way to bring them into conformity is to chop half of them off (not discernible). Because of the original subdivision it's very difficult to bring the existing structures into conformity. MR. PERROZZI: (From the audience and not discernible). MS. FREED: You're asking a'question I can not answer. CHAIRMAN GREGG: Uh..Does the Commission wish to uh try to pursue some type of a compromise? COMMISSIONER JAMES: Well, I think we have Mr. Hill's opinion on that; I would like to get Mr. Perrozzi's. MR. PERROZZI:: I'm open to compromise and basically (not discernible) the fact that the compromise where there is "no cubical increase" is going to be a problem. (Not discernible.) COMMISSIONER CROWE: Couldn't you increase the..your cubical content by the..by not having a duplex? Page 36 Case 84-098 Verbatim MR. PERROZZI^. ' (From the audience and n.;.`discernible.) COMMISSIONER CROWE: Well, that's what I mean, instead of using it as an additional residence, use it as part of your... MR. PERROZZI: (From the audience and not discernible.) COMMISSIONER CROWE: You're saying the duplex downstairs is approximately 300 square feet. What is..I'm looking here.. the cubical content increase uh if the second floor is..is allowed to take place. I think it's spelled out here but I can't.. CHAIRMAN GREGG: Useable square footage would be approxi- mately 800 square feet. COMMISSIONER KNIGHT: Mr. Chairman, I don't know if it's necessarily the purpose of the uh Planning Commission to spend time here trying to work out a compromise when uh you know, without real input of the parties involved. I think we've made an attempt to uh see what their wishes are. I think we know what their wishes are. I only see two alternatives - one is to take action tonight, if that's what required or to table it and give them an opportunity to see if the parties can work out amongst themselves, and I don't know if that's necessarily what they want to do. I think both of them, from what I'm hearing, they want action tonight. Uhm..because we can come up with all kinds of ideas but unless they've had a chance to really look at it uh they can't make a decision tonight either. They've got to consider, you know, what they've got both invested in and I don't think they want to make a decision..that they don't want to have a chance to uh consider rather than having us tell them what uh.. COMMISSIONER CROWE: I think you have a good point. What would you suggest that we do? Reconvene uh in a week's time and uh consider this or what are you saying? Page 37 Case 84-098 Verbatim COMMISSIONEk,NIGHT: Well, I think we' going to have to take action. I'm getting a reading that both parties want it resolved tonight. Regardless of what the outcome is. That either of them or both are going to..I guess are going to have to follow up on uh which way it goes. There is going to be some party that's not happy with this and is going to appeal it, apparently. Uh..that's going to take another month. Uh..so probably more than that. Is there a timing? Do you have any idea when this would be appealed and resolved? MS. FREED: Well, it would need to be appealed to the City within ten days. It generally takes the City about a month under their current time frames to hear an appeal. COMMISSIONER KNIGHT: During an appeal. MS. FREED: The administrative decision stays. COMMISSIONER KNIGHT: Stays. MS. FREED: In this case the Planning and Zoning Commission decision would also be stayed. COMMISSIONER CROWE: Well, I feel comfortable with the suggestion of the staff. It doesn't give everybody what they want, a compromise never does, but the roof allows them to have uh some protection or to be able to con.. construct something that would be able to protect their home better from what their current roof does. It'll also allow them..it does uh under the strict interpretation..allow additional cubical content to the house but it would allow for storage as opposed to living. And I think it would uh have less impact on the surrounding uh properties. COMMISSIONER KNIGHT: I would just like to make a comment that uh its very impractical to provide storage in Alaska in your Page 38 Case 84-098 Verbatim attic. Usually. 'ion't know what the pitch`_` the roof is..is it four to one pitch, I believe. Uh we, at the Housing Author- ity, discourage the attic to be used as a storage area. It's very..it's not a real good.. COMMISSIONER CROWE: I use it all the time. Why can't I? COMMISSIONER KNIGHT: Well, (not discernible) there's a lot of technical (not discernible) the barrier, maintaining the vapors..the vapor barrier. COMMISSIONER CROWE: I understand that part of it, but I think there are ways of..I don't know, maybe it just the way (not discernible). CHAIRMAN GREGG: I would like to suggest one procedural thing, and that is if we are indeed going to consider uh granting the variance that staff has recommended. In that before doing that we do have act to act on the variance that the applicant has requested. MS. FREED: I'd also like to make a comment. After sitting here and listening to people's interpretations of what the staff recommendation is. I think it needs to be rewritten so its clarified uhm. Just a suggestion that comes to me is that the pitch of the roof should be no greater than a four -foot hip roof that will allow eight -foot ceilings on each of the existing two stories, but adding no new story to the structure. COMMISSIONER CROWE: In calling it a hip.... are you saying a hipped roof? and a pitched roof? I..I. MS. FREED: It's a kind of design and that's the kind of ceil...or the kind of roof that's going on the current building. Which is a..it's pitched on the sides and flat on the top and that's the kind of structure that's going on the existing. Page 39 Case 84-098 Verbatim CHAIRMAN GRED.; The hipped roof is one -__at is all four sides slope down, it's not flat on the top. COMMISSIONER CROWE: Are we saying "pitched" then or "hipped?" CHAIRMAN GREGG: It is pitched. COMMISSIONER KNIGHT: We're just saying basically that its pitched. COMMISSIONER CROWE: Okay, so that the terms are interchangeable? MS. FREED: Okay, it's my understanding..well I'm just trying to make sure that we're all clear on what it is. COMMISSIONER CROWE: That's..that's what's gonna be one of my questions. Are hipped and pitched the same? CHAIRMAN GREGG: Yes. COMMISSIONER CROWE: You guys all know that for sure, right?! CHAIRMAN GREGG: Yes. MS. FREED: And a four foot on the existing roof. COMMISSIONER CROWE: Uhm..would you repeat that terminology that you used. MS. FREED: I'm not sure because..at this point..what I said was "that the pitch of the roof should be no greater than a four - foot hipped roof that will allow eight -foot ceilings on each of the existing two stories." COMMISSIONER CROWE: "Pitch no greater than a four -foot hipped roof that will allow eight -foot ceilings on each level?" CHAIRMAN GREGG: On the existing building, basically, "the original building" would perhaps be more clear. COMMISSIONER RENNELL: Mr. Chairman. Page 40 Case 84-098 Verbatim CHAIRMAN GRLtG: Mr. Rennell. COMMISSIONER RENNELL: I move we grant a request for a variance from Section 17.36.070C of the Borough Code (Repairs and Maintenance) in order to provide relief from the administration.. administrative decision to permit the construction of a third - story addition that would increase the cubical content of a nonconforming structure. Lots 30 and 32, Block 19, Kodiak Townsite Alaska Subdivision, 307 Cope Street. CHAIRMAN GREGG: Is there a second? COMMISSIONER CROWE: With no uh conditions? COMMISSIONER RENNELL: This is what it has. CHAIRMAN GREGG: That..that is the variance request. COMMISSIONER KNIGHT: Second. CHAIRMAN GREGG: Any discussion? COMMISSIONER KNIGHT: Could we uh restate the motion again? It's here, right? It's the same one.. COMMISSIONER RENNELL: It's the second half of the beginning of the memorandum. It starts at "and a request." See what I'm looking at? COMMISSIONER KNIGHT: What's that? COMMISSIONER JAMES: It's on the first page. COMMISSIONER RENNELL: First page. COMMISSIONER CROWE: He just read "A request for a variance" included in "a request for a variance in order to provide relief from the administrative decision to permit the construction of a third -story addition that would increase...," okay? CHAIRMAN GREGG: Any discussion? Seeing none, could we have a roll call vote please. MS. KESTER: Mr. Rennell. Page 41 Case 84-098 Verbatim COMMISSIONER .;1LNNELL: No. MS. KESTER: COMMISSIONER MS. KESTER: Mr. Knight. KNIGHT: Yes. Mrs. Crowe. COMMISSIONER CROWE: No. MS. KESTER: Mr. CHAIRMAN GREGG: MS. KESTER: Mr. Gregg. No. James. COMMISSIONER JAMES: MS. KESTER: Motion COMMISSIONER CROWE: CHAIRMAN GREGG: Mrs. COMMISSIONER CROWE: Yes. fails. Mr. Chairman. Crowe. I would move that we grant a request for a variance from Section 17.36.070 to permit the construction of a pitched roof to be added uh to the existing structure. The pitch of the roof should be no greater than four..a four -foot hip roof that would allow an eight -foot ceiling on the original building...of the existing..here they have the..the existing two stories. COMMISSIONER RENNELL: Linda. Virginia? COMMISSIONER CROWE: Yes, excuse me. MS. FREED: I hate to interrupt your motion, but I've just talked to Bud a little more and he thinks that motion needs to be clarified. So if you don't table it you can let it die on the floor. We'll give you the right one. Secondly, you need to have findings of fact for your previous motion. Of why you denied the request. Which would you like first? Would you like the reword- ing of the motion? CHAIRMAN GREGG: Is there a second on the motion? Page 42 Case 84-098 Verbatim COMMISSIONEF`=oaOWE: Oh, I..I could wit':: yaw my motion at this time. MS. FREED: I apologize, but after talking with Bud I think we've got a better clarification. He did get some information from Bryce Gordon that I wasn't aware of. CHAIRMAN GREGG: Okay, I think it would probably be uh better to clean things up behind us as we go along. I think findings of fact to the original motion would be in order first. One thing I would like to suggest is the that to the uh 1) there are no exceptional physical circumstances evident to allow the variance request to be approved; 2) I don't know if we should specifically state that impairment of view would constitute prejudice to the neighboring properties, or if we should just...I personally believe that uh that we have considered primarily impairment of view and I would like to suggest that impairment of view constitute prejudice to the adjoining properties and other properties in the neighborhood would thus be prejudiced by granting of a variance to construct a third story addition to the existing structure...structure. COMMISSIONER CROWE: That was one of the things that I considered. COMMISSIONER RENNELL: I did too. CHAIRMAN GREGG: Anybody have anything to add? COMMISSIONER CROWE: I would so move. CHAIRMAN GREGG: Moved. Is there a second? COMMISSIONER RENNELL: I'll second. CHAIRMAN GREGG: Any discussion? Can we have a roll call vote please. MS. KESTER: Mr. James. Page 43 Case 84-098 Verbatim COMMISSIONER _'1MES: Yes. MS. KESTER: Mr. Gregg. CHAIRMAN GREGG: Yes. MS. KESTER: Mrs. Crowe. COMMISSIONER CROWE: Yes. MS. KESTER: Mr. Knight. COMMISSIONER KNIGHT: No. MS. KESTER: Mr. Rennell. COMMISSIONER RENNELL: Yes. MS. KESTER: Motion carries. CHAIRMAN GREGG: Okay. MS. FREED: I'll give it a try a second time. "Move to grant a variance from Section 17.36.070 (Repairs and Maintenance) to permit the construction of a pitched roof to be added to the roof line of the existing structure with a four to twelve pitch.. pitch ratio?" CHAIRMAN GREGG: Four twelve pitch would be standard termin- ology. MS. FREED: For those that build roofs. COMMISSIONER CROWE: (Not discernible) the builders can make a motion. MR. CASSIDY: If I may clarify that. That's basically the roof that's there, you know, after talking with Bryce Gordon (not discernible). CHAIRMAN GREGG: Do we have that written down someplace. MS. FREED: Uh hum. CHAIRMAN GREGG: Would you please... MS. FREED: Eliminate the second section...second sentence altogether, but "to grant a variance to permit the construction Page 44 Case 84-098 Verbatim of a pitched roof' be added to the roof li::G-of the existing structure with a four- to twelve -foot pitch ratio." COMMISSIONER CROWE: Second floor (not discernible). CHAIRMAN GREGG: Pitch. COMMISSIONER CROWE: Pitch ratio? CHAIRMAN GREGG: Uh hum. COMMISSIONER CROWE: (Not discernible.) CHAIRMAN GREGG: You're taking notes. COMMISSIONER CROWE: Mr. Chairman. CHAIRMAN GREGG: Mrs. Crowe. COMMISSIONER CROWE: I move to grant a variance from Section 17.36.070 to permit the construction of a pitched roof to be added to the roof line of the existing structure uhm of a four - to twelve -foot roof pitch ratio. COMMISSIONER RENNELL: I'll second that motion. CHAIRMAN GREGG: Is there any discussion? Seeing none could we have a roll call vote please. MS. KESTER: Mr. Gregg. i CHAIRMAN GREGG: Yes. MS. KESTER: Mrs. Crowe. COMMISSIONER CROWE: Yes. MS. KESTER: Mr. James. COMMISSIONER JAMES. No. MS. KESTER: Mr. Knight. COMMISSIONER KNIGHT: Yes. MS. KESTER: Mr. Rennell. COMMISSIONER RENNELL: Yes. MS. KESTER: Motion carries. Page 45 Case 84-098 Verbatim CHAIRMAN GRI,,»: Is there anything else at we need to consider in this case? MS. FREED: Findings of fact for this variance. COMMISSIONER CROWE: I don't know..if this isn't for the record as a finding of fact, but to me the physical circumstances of that lot were used up in the other uh uh setback requirements that are already not met. This was an unhappy situation between the Perrozzi's and uh the surrounding neighbors, Mr. Hill in particular because he happened to be planning to sell his house and this is somewhat of a compromise uh to both. And that's why I was willing to go..to go with this type of a variance. MS. FREED: I suspect there will be a transcript on this. COMMISSIONER CROWE: MS. FREED: How far COMMISSIONER CROWE: matter that's how I feel. CHAIRMAN GREGG: I think as far as Well no, I know. off the record it will be I don't know. I didn't (not discernible), it doesn't findings of fact for that that general maintenance of the building, specifically the roof, requires problems allowing replacement and that flat..flat roof would result in a similar to the existing roof. And therefore uh not a variance to increase the cubical content to allow a pitched roof would result in unnecessary hardship, perhaps. COMMISSIONER KNIGHT: I feel that granting the variance will make an improvement to the existing structure and that..that should be..that is the purpose uh of the Planning Commission is to try to encourage improvement of nonconforming lots that need uh repair. That's why I granted the variance. CHAIRMAN GREGG: Anybody have anything to add? Page 46 Case 84-098 Verbatim COMMISSIONEINNELL: My..my reasoning` granted a variance is basically uh Mr. Perrozzi's a victim of uh a mistake of staff and this is uh relief I see appropriate for the situation. CHAIRMAN GREGG: I really don't feel that we are necessarily granting him a..any relief through that variance though. Speci- fically the relief requested. COMMISSIONER CROWE: I think we're grant..I..I really feel like it's granting uh relief from the administrative decision. As much as anything..a certain amount of it anyway. But I would uhm move that we accept the comments of the Commissioners uh as our findings of fact. COMMISSIONER RENNELL: I'll second. CHAIRMAN GREGG: Any discussion? COMMISSIONER KNIGHT: I would..1 liked our findings of fact..I don't know, we've done this in the past..I'd like to be able to uh develop our findings of fact at our next uh meeting. If that's appropriate. CO?ft4ISSIONER CROWE: Okay, then I will withdraw my motion. COMMISSIONER RENNELL: Yeah. CHAIRMAN GREGG: Uh would it perhaps be better it if you just moved to table? COMMISSIONER KNIGHT: If we took..take..yeah, we'll table the findings of fact until our next scheduled uh meeting. COMMISSIONER CROWE: Our August uh meeting so that Perrozzi's know. COMMISSIONER KNIGHT: Right. CHAIRMAN GREGG: Okay and the motion was withdrawn with the concurrence of a second? COMMISSIONER CROWE: Yes. Page 47 Case 84-098 Verbatim CHAIRMAN GREs, All in favor of tabling, signify by saying aye. ALL THE COMMISSIONERS: Aye. CHAIRMAN GREGG: All opposed, same sign. MS. FREED: Would you like us to come up with some draft findings of fact based on your comments? CHAIRMAN GREGG: Based on those comments please. If I can find my agenda here...audience comments. Mr. Perrozzi. MR. PERROZZI: You know, obviously you come here asking for apples and they give you oranges. You know, uh the pitched roof doesn't do me any good at all. And I..my initial comment earlier was the fact that you know I didn't get this until Bud..until about two hours before that. So I didn't know that their recom- mendation was going to be for denial. And I do believe that staff prejudiced the decision. And that's my feelings. Obvious- ly, you know, we'll have to go on to the Council for this. But uh you know maybe you guys are caught up..there's not much you can do either. You know, you have to protect your own situation because you're going to be in there down the line and obviously you've got to live with, you know, your fellow Commissioners. So..I..it's regrettable you..that staff made a..or the previous staff made a bad decision. It's affecting me immensely. You know, putting a bandaid is not going to be a solution to the problem. So.. COMMISSIONER CROWE: Mr. Perrozzi you do remember your right of appeal? MR. PERROZZI: Oh definitely. CHAIRMAN GREGG: If there no other audience comments, at this time we'll adjourn. Page 48 Case 84-098 Verbatim KODIAK ISLAND BOROUGH Community Development Department 710 Mill Bay Road Kodiak, Alaska 99615 PUBLIC HEARING NOTICE Kodiak Island Borough Kodiak, Alaska RECEIVED AUG —Fi To $ n+ P M 119 01101111121O1$I4IG14 NOTICE DATE: July 31, 1984 CASE NUMBER: 84-098 s' An application for an appeal from an administrative decision and a variance was filed with the Kodiak Island Borough Community Development Department by: JOE PERROZZI The -application requests an appeal from an administrative decision in accordance with Section 17.68.020 of the Borough Code ordering the discontinuance of construction or other preparatory activity leading to an unlawful structure or an unlawful use of land or structure (17.75.010 A.3.); and a request for a variance from Section 17.36.070(C) of the Borough Code (Repairs and Maintenance) in order to provide relief from the administrative decision to permit the construction of a third -story addition that would increase the cubical content of a nonconforming structure. Lots 30 and 32, Block 19, Kodiak Townsite Alaska Subdivision; 307 Cope Street. The Planning and Zoning Commission will hold a PUBLIC HEARING on this request at their special meeting at 7:30 p.m. on Monday, August 6, 1984, in the Borough Assembly Chambers, 710 Mill Bay Road, Kodiak, Alaska. This meeting is open to the public. You are being notified because you are a property owner in the area of the request. This is the only scheduled PUBLIC HEARING on the request at this time, and you are invited to appear before the Commission to express your opinion. If you cannot attend this PUBLIC HEARING and wish to comment on the request, fill in the bottom of this notice and return it to the Community Development Department, 710 Mill Bay Road, Kodiak, Alaska, 99615. Your returned comment should be received PRIOR TO THE SCHEDULED MEETING DATE. A vicinity map showing the property involved is included on the back of this form. If you have any questions on this matter, please feel free to call our Zoning Officer at 486-5736, extension 258. YOUR NAME: ra is ill. Ble oo`k3 ADDRESS: P- O. 60x as 21 K01J,-1 4, PA WS YOUR PROPERTY DESCRIPTION: plAq C aU x 11 BbycK COMMENTS: CO ,v1/94'-(19 4.0c 2 w, 7 k rt -a. C viz P--e,crr i3a(Lo0 (2-eu, air ore leJ7 S -Lat.+4A dw4wD,QTOKy P.0 e_ r*jLl. of GS F U !J -R 1 A ke . e S 72 A,UT-e T9 L -u in. ,1 ti) Ot To C. Sc RA TLe— .P,e [t Li Iate m<,c'rS 44-7 Y6TrU K01,r9hL C,TY iAlTO 4 ciry aF /-lvTS ^tAI Ni'➢ NDit) 4-ag)FaR»rjAJ& 5r2 4.7-02,PS CASE 84-098. L. 30 s 32, 0.19 Kodiak Townsite Subdivision Radius=300' from lot's edge c —KODIAK TOWNSITE US SURVEY 444 Tr G 1534 USS /837 vi ot5vi' Fri l KODIAK ISLAND BOROUGH Community Development Department 710 Mill Bay Road Kodiak, Alaska 99615 PUBLIC HEARING NOTICE NOTICE DATE: July 31, 1984 CASE NUMBER: 84-098 An application for an appeal from an administrative decision and filed with the Kodiak Island Borough Community Development Department by: a variance was JOE PERROZZI The application requests an appeal from an administrative decision in accordance with Section 17.68.020 of the Borough Code ordering the discontinuance of construction or other preparatory activity leading to an unlawful structure or an unlawful use of land or structure (17.75.010 A.3.); and a request for a variance from Section 17.36.070(C) of the Borough Code (Repairs and Maintenance) in order to provide relief from the administrative decision to permit the construction of a third -story addition that would increase the cubical content of a nonconforming structure. Lots 30 and 32, Block 19, Kodiak Townsite Alaska Subdivision; 307 Cope Street. The Planning and Zoning Commission will hold a PUBLIC HEARING on this request at their special meeting at 7:30 p.m. on Monday, August 6, 1984, in the Borough Assembly Chambers, 710 Mill Bay Road, Kodiak, Alaska. This meeting is open to the public. You are being notified because you are a property owner in the area of the request. This is the only scheduled PUBLIC HEARING on the request at this time, and you are invited to appear before the Commission to express your opinion. If you cannot attend this PUBLIC HEARING and wish to comment on the request, fill in the bottom of this notice and return it to the Community Development Department, 710 Mill Bay Road, Kodiak, Alaska, 99615. Your returned comment should be received PRIOR TO THE SCHEDULED MEETING DATE. A vicinity map showing the property involved is included on the back of this form. If you have any questions on this matter, please feel free to call our Zoning Officer at -486-5736, extension 258. YOUR NAMEC^. }c,,.I Nom` CIGM G! ADDRESS: 3 (j YOUR PROPERTY DESCRIPTION: L,y ¢ 3 3 & 3E1 COMMENTS: 11--e CiIND_—Lot— ha ,n :a.v-eA / / r LT6 LJ `,�_ to 76 (17.x, triYt-ejea- /I- 7 n .sv-n dypi a A(4A CASE 84-098. L. 30 & 32, B.19 Kodiak Townsite Subdivision Radius=300' from lot's edge Poe 4 ;000004, KODIAK. TOWNSITE US SURVEY 444 Ti. 534 USS;1837 00 OF Fri KODIAK ISLAND BOROUGH. ITEM III (A MEMORANDUM DATE: August 6, 1984 ��jj TO: Planning and Zoning Commissio%LC" -- FROM: Community Development Department SUBJ: Information for the August 6, 1984 Special Meeting RE: Case 84-098. An appeal from an administrative decision in accordance with Section 17.68.020 of the Borough Code ordering the discontinuance of construction or other preparatory activity leading to an unlawful structure or an unlawful use of land or structure (17.75.010 A.3.); and a request for a variance from Section 17.36.070(C) of the Borough Code (Repairs and Mainten- ance) in order to provide relief from the administrative decision to permit the construction of a third -story addition that would increase the cubical content of a: nonconforming structure.. Lots 30 and 32, Block 19, Kodiak Townsite Alaska Subdivision; 307 Cope. Street. (Joe Perrozzi) 39 public hearing notices were mailed on July 31, 1984. 1. Applicant: Joe Perrozzi, Box 3696, Kodiak, Alaska 99615. 2. Land Owner: Same as applicant. 3. Request: An appeal from an administrative decision in accordance with Section 17.68.020 and a request for a variance from Section 17.36.070C. 4. Purpose: 1) Appeal from an administrative decision in accordance with Section 17.68.020 of the Borough Code ordering the discontinuance of construction or other preparatory activity leading to an unlawful structure of an unlawful use of land or structure (17.75.010 A.3.); and 2) to construct a third -story addition onto an existing two-story nonconforming structure. 5. Existing Zoning: R2. 6. Zoning History: The 1968 Comprehensive Plan indicates the zoning of this area as R2. In 1977, Case 489, the Planning and Zoning Commis- sion denied a request for a variance to allow the construction of a two-story addition on the east side of the existing building (see map). The reasons for denial include the following: 1. In 1977, a section of the Borough Code prohibited additions to nonconforming structures and prohibited the altering or enlarging of nonconforming structures to add permanence to the structure beyond what was necessary to protect the property's original interest; and 2. The code also stated that the petitioner must show evidence of his ability and intention to proceed in accordance with submitted plans within a six-month time limit for a variance (these code sections no longer exist). The reasons for denial were extracted from the recommendations of the zoning administrator since no findings of fact were specified by the Planning and Zoning Commission for the denial. No paperwork exists to indicate whether this request for a variance met the criteria then existing for granting a variance. Departmental records show no additional activity. 7. Location: Lot 30 and 32, Block 19, Kodiak Townsite Alaska Subdivision; 310 West Rezanof and 307 Cope Street. 8. Lot Size: Lot 30: 3,135 square feet; Lot 32: 846 square feet. 9. Existing Land Use: Lot 30 contains a duplex and Lot 32 contains an accessory building. 10. Surrounding Land Use and Zoning: North: South: East: West: Lot 33, Block 19, Kodiak Townsite Rezanof Drive Lot 31, Block 19, Kodiak Townsite Lot 29, Block 19, Kodiak Townsite Subd; Zoning -R2; Use -R1 Subd; Zoning -R2; Use -R1 Subd; Zoning -R2; Use -R1 11. Comprehensive Plan: The Comprehensive Plan indicates these lots for high-density, residential development. 12. Applicable Regulations: Chapter 17.03.060C, Building Permits,..."Any building permit issued in conflict with this title is null and void." Chapter 17.75.010 A.3., Administrative Enforcement Action..."The Zoning Officer may order.... the discontinuance of construction or other preparatory activity leading to an unlawful structure or an unlawful use of land or structure." Chapter 17.36, Existing Nonconforming Uses and Structures, Section 17.36.040 (Nonconforming Structures) states "where a lawful structure exists at the effective date of adoption or amendment to the ordi- nances codified in this title that could not be built under the existing terms of this chapter by reason of restrictions on area, lot coverage, height, yards, or other characteristics of the structure or its location on the lot, such structure may be continued so long as it remains otherwise lawful." This section further states "A. No structure may be enlarged or altered in a way which increase its nonconformity." This code section implies that structural changes may be made as long as any nonconformity is not made greater. Section 17.36,040A is inconsistent with Section 17.36.070C which states... "Repairs and Maintenance. On any nonconforming structure or on any building devoted in whole or in part to any nonconforming use, work may be done in any period of twelve consecutive months on ordi- nary repairs, or on repair or replacement of nonbearing walls, fixtures, wiring, or plumbing, provided that the cubical content of the building as it existed at the time of passage or amendment of the ordinance codified herein shall not be increased." The general interpretation by the borough attorney is that Section 17.36.070C (Repairs and Maintenance) of the Borough Code is not only stricter, but clearer than Section 17.36.040. Therefore, Section 17.36.070C overrides Section 17.36.040. COMMENTS: A. Sequence of Events August 8, 1983. Building permit #5131 was issued and signed off by the City Building Official and the Zoning Administrator for Lots 30 and 32, Block 19, Kodiak Townsite Alaska Subdivision, owned by Mr. Joe Perrozzi. Building plans accompanied the building permit and are on file with the City Building Inspector. Since the time the permit was issued, foundation repairs have been made to the structure. These include a new concrete foundation, footings around most of the rear section of the structure, as well as replacement of selected joists. July 18, 1984. A verbal complaint from Tim Hill asking staff to check into the validity of the building permit was stated at the Planning and Zoning Commission meeting on July 18, 1984. July 20, 1984 (Friday). A site investigation by staff accompanied by the property owner demonstrated that the front yard setback (as measured from Rezanof) and side yard setbadk is not adequate. A recent interpretation by the borough attorney on other nonconforming structures indicated that additions could be constructed as long as the nonconformity of the struc- ture is not increased. In this particular case, the encroachment into the front and side yard setbacks by the third -story addition was not being increased and therefore the addition appeared to be allowable. Since staff recognized the inconsistency between Section 17.36.040A of the Borough Code and Section 17.36.070C, and the borough attorney was out of town, no further information could be obtained until Monday. Mr. Perrozzi was made aware of the conflict in the code, and that it might have some impact on his construction plans. July 23, 1984 (Monday). The borough attorney confirmed that the Repair and Maintenance section (17.36.070C) of the Borough Code was clear and that nonconforming structures are not be to be enlarged to add cubical content. Staff called Joe Ferrozzi and informed him that his building permit was null and void because it was signed in conflict with Borough Code Section 17.03.060, and a variance was required before work could continue. John Sullivan called to inform staff that the Building Code allows the party to continue to build up to a point where his property and person are protected from damages. July 24, 1984 (Tuesday). A telephone call informed staff that work was continuing on the third -floor addition. Assuming John Sullivan would issue a stop work order, staff did not purse the call. July 25, 1984 (Wednesday). The Planning Director informed the Zoning Officer that a stop work order should be initiated by the Community Develop- ment Department. July 25, 1984 (Wednesday night - P&Z worksession). After discussion of the general parameters of the case, the Planning and Zoning Commission directed staff to place this case on the August agenda. July 26, 1984 (Thursday). A letter stating that all work "must cease immediately" was hand delivered to Mr. Perrozzi. July 27, 1984 (Friday). The Zoning Officer issued a summons and complaint to Mr. Perrozzi. Mr. Perrozzi stated that work would be discontinued when the roof was completed. He also stated that, according to the City Build- ing Inspector, he could continue until that stage of construction was completed. July 30, 1984 (Monday). Additional complaints about work continuing on the structure were received over the weekend. On Monday, July 30, an addition- al complaint was filed against Mr. Perrozzi for continuing to work after the stop work order was issued. Mr. Perrozzi also appealed the administra- tive decision that his building permit was null and void and the stop work order. He asked for relief by the granting of a variance by the Planning and Zoning Commission, to allow him to continue his construction. Also, a poll of Planning and Zoning Commissioners was conducted to determine the support for a special meeting to deal with this case. Ultimately, it was decided to have a special meeting on Monday, August 6th. July 31, 1984 (Tuesday). At 1:30 p.m. arraignment was held on the summons and complaint issued by the Borough. Mr. Perrozzi, through his attorney, entered a plea of not guilty. Work has discontinued. B. Building Permit Building Permit #5131 was issued August 5, 1983. Although, in many places unclear, the permit does point out that a one-story addition of 864 square feet was to be constructed for a total height of 29 feet. Building plans on file with the permit at the City Building Inspector's office verified that a third -story addition was planned for this structure. C. Nonconforming Buildings As stated previously, a nonconforming building is a structure that could not be built until under the requirements of the present code due to improper lot coverage, height, and most commonly - setbacks. The structure may exist so long as it "remains otherwise lawful." The intent of regulations dealing with nonconforming structures are to eventually eliminate such structures when their economic usefulness ends, and eventually bring any new structure into full compliance with the code. In Kodiak there are many examples of nonconforming structures. Most of the Aleutian Homes, Leite Addition, and residential portions of Kodiak Townsite Alaska subdivisions contain nonconforming structures. This is primarily due to the small area of the lots and lack of regulation or enforcement during construction. The remedy to allow construction onto nonconforming structures is to follow the variance procedure. Control of other development factors can be attained by attaching conditions when granting the variance. Our files have many cases of variance request for additions to nonconforming structures. D. Building Height The complainant that initiated these proceedings was concerned about the added height of the building, the view of the surrounding neighborhood that would be blocked, and the devaluation of property that would occur due to such action. The proposal to build an additional story may have dramatic affects on the neighborhood. This old section of town has a panoramic view of the boat harbor and downtown. In fact, it is this view that makes the neighborhood attractive. E. Flat Roofs The rain and wet snow in this climate make flat roofs impractical. Prob- lems develop with leakage as well as structural integrity due to snow loads. Mr. Perrozzi's roof is not adequate. The purpose for this construc- tion would alleviate leakage problems associated with the existing flat roof on the nonconforming structure. RECOMMENDATION: This case consists of two issues: 1. Building permit issued in violation of the Borough Code. Borough Code states that a building peewit issued in conflict with the code is null and void. The Commission, in this instance, needs to either affirm or reverse the administrative decision that the building permit is null and void. 2. Request for a variance. The petitioner has asked the Commission to grant a variance that would allow construction to continue according to the original building permit. Staff recommends that a variance to allow construction as proposed to continue should not be approved since this case does not meet all the conditions of the Borough Code for granting a variance. - A request for a variance for a new structure on Lots 30 and 32 might meet all the code requirements for granting a variance. The process would also allow the Commission to limit the height of the structure by attaching certain conditions. To build as proposed may not meet all the requirements for granting a variance. Other properties would be prejudiced and exceptional physical circumstances beyond the need to replace the existing roof making it functional, do not exist. Staff concludes that a variance that would allow a pitched roof only, to be added to the top of the existing structure, should be granted. This proposal would address the issue of view interruption as well as problems associated with the existing roof. APPROPRIATE MOTION: The Commission should consider the following action: 1. Move to affirm the zoning officer's administrative decision ordering the discontinuation of construction or other preparatory activ'ty leading to an unlawful structure since building permit #5131 i} null and void per Section 17.03.060 of the Borough Code. 2. Move to grant a variance from Section 17.36.070 (Repairs and Mainten- ance) to permit the construction of a pitched roof to be added to the roof line of the e t�;�g t;ucture. The pitch of the roof should be no greater thanA roo tnt is currently under construction allowing eight -foot ceilings on each of the existing two stories, but adding no new story to the structure. Findings of Fact: 1. There are no exceptional physical circumstances evident to allow the variance request to be approved. 2. Other properties in the neighborhood would be prejudiced by granting a variance to construct a third -story addition to the existing structure. /y 0 sit ,£! egg 6 • J • Y T „ JOEL H. BOLGER MATTHEW O.JAMIN MEMORANDUM .JAMIN 8C BOLGER ATTORNEYS AT LAW POST OFFICE BOX 193 KODIAK, ALASKA 99615 (9071486-6061 TO: Linda Freed Kodiak Island Borough FROM: Joel Bolger ad/r/ JAMIN & BOLG RE: Kodiak Island Borough v. Joe Perrozzi DATE: August 6, 1984 I promised to send a memo concerning relevant considera- tions for the Planning and Zoning Commission in its meeting to consider the appeal filed by Joe Perrozzi concerning administra- tive enforcement action concerning an addition to his residence on Rezanof Drive. Bud Cassidy as Zoning Officer of the Kodiak Island Borough issued an order under KIBC 17.75.010.a.3 which provides as fol- lows: 17.75.010. Administrative enforcement action. A. The zoning officer may order- 3. The discontinuation of construction or other pre- patory activity leading to an unlawful structure or an unlawful use of a land or structure.... The relevant considerations on a variance application are listed quite clearly at KIBC 17.66.050. The procedure on appeal is listed at KIBC 17.68.020. Rele- vant portions of this ordinance are set forth as follows: C. Public hearing. The Planning commission shall hold a public hearing on each appeal. At the hear- ing, the commission shall review the appeal record and hear evidence and arguments presented by persons interested in the appeal. D. Decision. The Plan- ning commission shall either affirm or reverse the MEMORANDUM TO: Linda Freed, SIB RE: Kodiak Island Borough v. Joe Perrozzi DATE: August 6, 1984 Page 2 zoning officer's decision in whole or in part. E. Findings. Every decision of the Planning Commission on an appeal shall be based upon findings and conclu- sions adopted by the commission. The findings must be reasonably specific so as to provide the commun- ity, and where appropriate, the reviewing authorities, a clear and precise understanding of the reason for the decision. F. Stay. An appeal from the deci- sion of the zoning officer stays the decision appealed from until there is a final decision on the appeal. Outside of the general zoning questions which come up on an appeal of this nature, I assume that Joe Perrozzi will bring up his reliance on a previously issued building permit. The rele- vant factual determinations to decide whether Perrozzi should be allowed to rely on the previously issued building permit were recently outlined by the Alaska Supreme Court as follows: 1. Did the property owner receive a permit which was beyond the power of the administrative officer to grant? 2. Did the land owner detrimentally rely on the permit? 3. Has the government attempted to revoke the permit and enforce the appropriate zoning ordinance? 4. Should the construction be allowed to continue in the interest of justice? Relevant to the final question are the purposes of the zoning ordinances in the case, health and safety codes, and the character of the present structures in the area. These factors should be taken into consideration in the Planning Commission's decision on whether or not to affirm the enforcement action. Feel free to call if you have any questions concerning this memo. JHB/vkb KODIAK ISLAND BOROUGH (DISPLAY AD) KODIAK ISLAND BOROUGH PLANNING AND ZONING COMMISSION SPECIAL MEETING The Planning and Zoning Commission will conduct a special meeting on Monday, August 6, 1984 at 7:30 p.m. in the Borough Assembly Chambers. There will be one item on the agenda. An appeal from an administrative decision in accordance with Section 17.68.020 of the Borough Code ordering the discontinuation of construction or other preparatory activity leading to an unlawful structure or.an unlawful use of land or structure (17.75.010 A.3.); and A request for a variance from Section 17.36.070(C) of the Borough Code (Repairs and Maintenance) in order to provide relief from the administrative decision to permit the construction of a third -story addition that would increase the cubical content of a nonconforming structure. Lots 30 and 32, Block 19, Kodiak Townsite Alaska Subdivision (Joe Perrozzi). For more information contact the Community Development Department at 486-5736. PUBLISH: Kodiak Mirror: August 1, 3 and 6, 1984 Kadiak Times: August 2, 1984 KODIAK TOWNSITE US SURVEY 444 Tr G KODIAK ISLAND BOROUGH Community Development Department 710 Mill Bay Road Kodiak, Alaska 99615 PUBLIC HEARING NOTICE NOTICE DATE: July 31, 1984 CASE NUMBER: 84-098 An application for an appeal from an administrative decision and a variance was filed with the Kodiak Island Borough Community Development Department by: JOE PERROZZI The application requests an appeal from an administrative decision in accordance with Section 17.68.020 of the Borough Code ordering the discontinuance of construction or other preparatory activity leading to an unlawful structure or an unlawful use of land or structure (17.75.010 A.3.); and a request for a variance from Section 17.36.070(C) of the Borough Code (Repairs and Maintenance) in order to provide relief from the administrative decision to permit the construction of a third -story addition that would increase the cubical content of a nonconforming structure. Lots 30 and 32, Block 19, Kodiak Townsite Alaska Subdivision; 307 Cope Street. The Planning and Zoning Commission will hold a PUBLIC HEARING on this request at their special meeting at 7:30 p.m. on Monday, August 6, 1984, in the Borough Assembly Chambers, 710 Mill Bay Road, Kodiak, Alaska. This meeting is open to the public. You are being notified because you are a property owner in the area of the request. This is the only scheduled. PUBLIC HEARING on the request at this time, and you are invited to appear before the Commission to express your opinion. If you cannot attend this PUBLIC HEARING and wish to comment on the request, fill in the bottom of this notice and return it to the Community Development Department, 710 Mill Bay Road, Kodiak, Alaska, 99615. Your returned comment should be received PRIOR TO THE SCHEDULED MEETING DATE. A vicinity map showing the property involved is included on the back of this form. If you have any questions on this matter, please feel free to call our Zoning Officer at 486-5736, extension 258. YOUR NAME: ADDRESS: YOUR PROPERTY DESCRIPTION: COMMENTS: CASE 84-098. Radius=300' L..30 & 32, 8.19 Kodiak TownsiteL. Subdivision from lot's edge ---KODIAK TOWNSITE c US SURVEY 444 Tr G USS /837 tu- SMALL BOAT HA .p010 TOOIS1T' USSURVEY 444 1 LL 4if j7 c S / Tr- kz-.5,2 18/h /9 ,Ozeezeg. Rl3`-oigodl/ , et -t_ 3419 ---/?13401cd 3 l 346 P-1- 3,c 35- 3 s3 3 j 36 �- `f D ..36, 340 O 6-0 37P 3.7 ,f'? 372 3 (- / /Do- 37 11I / O ,&6t 3 - %1u) 7 - dL . lS I rte•/o l2 l.a.DO3O /0 Lep°11- ILD / 7 > �- _ /8a 0 clol JSU cP i o /7 ./ 7 c� aid 1g 1 g as l /9 /q0 432 40 ,200 34 •ko csv 1U aU gI / oa 000 /66 3'7 c4'© c270 0 agv q_v R \D 190 111 UGANIK INC SHEFFIELD ENT ERPfk ISES P 00 • BOX 10-2960 4. ANCHORAGE AK 99510 R13401 901 30 UGANIK INC P.O. BOX 10-2960 ANCHORAGE AK 99 510 DAMON, HI YONG Po0 • BOX 1784 KODIAK R1340190231 AK 99615 R1340190160 T ENNIS ONs RONALD & MONICA P.0. BOX 2206 KODIAK AK 99615 • BROOKS, IR IS M P.0. BOX 28 29 KODIAK R13401901 70 AK 99615 R 1340190180 JONES, DUKE & DONNA P *0 • BOX 160 4 KODIAK Al< 99615 R1340190232 WOODL EY • M ICHAEL & DIANE P.O. BOX 3272 KODIAK AK 99615 R134019020 1 PERRY, GARY LEE P.O. BOX 165 USCG KODIAK AK 99619 R1340190220 V AV ROCH• JOS EP H & MICHAEL P.O. BOX 2914 KODIAK AK 99615 R 134014001 FRANCISCOoL EON & JUDITH P •0 • BOX 483 KODIAK AK 99615 R1340140012 K ILL EN• M ICHAEL & SUS AN P o0 • BOX 2868 KODIAK AK 99615 R1340140020 BONGEN,JEROME & ELIZABETH P.0. BOX 3523 KODIAK AK 99615 R1340140030 J AEGER• MARY 0 MICHELLE PO BOX 3064 SAN DIEGO CA 92103 R1340140040 J AEGER, MARY D MICHELLE P 4,0 •BOX 14 DT ANCHORAGE AK 99510 R1340140050 ROOT, V INCENT & MARY P.C. BOX 541 KODIAK AK 99615 R1340190100 KINNEAR, BLAKE & KATHRYN P.O. BOX 2743 KODIAK AK 99615 PUGH, JOHN P•0• BOX 685 KODIAK R0190372 .AK, 99615 R1340190330 HILL9T IMOT HY & JUL IE P.O. BOX 2249 KODIAK AK 99615 R1340190382 NES ET Hop HENRY & EUNICE %HETTMAN•CHARL ES P.O. BOX 2056 KODIAK AK 99615 R 1340190342 MCCONNELL, DWAYNE W P.0. BOX 928 .) KODIAK AK 99615 • R1340190351 CR IST ALDI• ANTHONY CR IST AL DI, BARBARA P•O• BOX 332 USCG KODIAK AK 99619 R1340190352 JENSEN, STE VE & JERI P.O. BOX 3970 KODIAK AK 99615 R1340190360 GOTTSCHALK, HARRY & GUYN P.O. BOX 981 KODIAK AK 99615 THREINEN•C W JR P•0• BOX 930 KODIAK R1340190371 AK 99615 +a• R1340190240 'COFFLAND,KENNET H E SUSAN P •0 • BOX 1571 USCG KODIAK AK 99619 R13401902 50 BURC Hip ORAL & C HER IE P.0. BOX 220 3 KODIAK AK 99615 SHORT ROS E P.C. BOX 4 KODIAK HANNAH, PET ER M P.O. BOX 3808 KODIAK R1340190234 AK 99615 R134O190270 AK 99615 R1340190280 KV AS NIKOFF,W ILL IAM P.O. BOX 137 KODIAK AK 99615 BRODI Ell ROBERT P •0 • BOX 296 KODIAK R1340190290 AK 99615 3 R1340190300 PERROZZ I• JOS EP H & JANE P.O. BOX 3696 -3 KODIAK AK 99615 ZHAROF F1 FRED P•O• .BOX 405 KODIAK R1340190310 AK 99615 44 220O30150 TURNER'S AJDAK & LyttiOEN P.0. BOX 1679 ANCHORAGE AK 99510 ABENA,T IM P.0. BOX 2287 KODIAK R1220030160 AK 99615 R1220030170 OML I OtS/AN DR EW, Li FUR 1N,G/ ANDREW 'JOY /HAL TER, L OR EN P.O. BOX 1700 KODIAK AK 99615 R1 2200301 80 SHARRATT 'GARY & LINDA P.0. BOX 673 KODIAK AK 99615 R1220030190 J AMES ir L EL AND P 3 116 IL I AMNA AVE. ANCHORAGE AK 99503 R1220030140 DICK, GL ENN & VIRGINIA B P •0 • BOX 2182 KODIAK AK 99615 R1220030110 K AZ IM COMPANY THE P.0. BOX 746 KODIAK Al< 99615 R1100000160 L ARM AN CONSTRUCTION CO P.0. C-17705 \SEATTLE WA 98107 UNIFORM SUMMONS AND COMPLAINT KODIAK ISLAND BOROUGH 3K0 -8 KODIAK ISLAND BOROUGH THIRD JUDICIAL DISTRICT SS 69 OF ALASKA i • COMPLAINT AFFIDAVIT IN THE THIRD JUDICIAL, DISTRICT COURT OF ALASKA THE UNDERSIGNED. BEING DULY SWORN. UPON HIS OATH DEPOSES AND SAYS: 'ON.4- �?.i.i.+r.rTHE_ " , DAY OF " / 19 "VA./ AT /7;;; (DEFENDANT) (PLEASEPRINT' 1 �. FIRST MIDDLE STREET ^i1 '-' r5 i "77; eJ/"., CITY-STATE /.,74't 3 PHONE NO. C - BIRTH ' AGE DATE RACE ' SEX HT WT EYES HAIR - SOC. SEC. NO. LIC. NO KIND/CLASS" ` NUMBER STATE VEH. LIC'. NO STATE YR MAKE STYLE• COLOR AT OR NEAR (LOCATION) lr' PLACE OF EMPLOYMENT DID UNLAWFULLY IN THE JUDICIAL DISTRICT AND STATE AFORESAID -COMMIT THE FOLLOWING OFFENSE: TO WIT: t _fir C f f et. ALASKA I ,19'' STATUTE ' '• - OTHER I, ' ] ', REGULATCON" BOROUGH L ; f] , ORDINANCE' . WHICH IS IN VIOLATION OF THE UNDERSIGNED FURTHER STATESTHATHEHASJUSTANDREASONABLEGROUNDSTOBELIEVE.AND DOES BELIEVE,THAT THE PERSON.NAMED ABOVE COMMITTED THE OFFENSE HEREIN SET FORTH. CONTRARY TO LAW. • SWORN TO: AND SUBSCRIBED BEFORE ME THIS et ..t:•--; DAY OF Ir,r r,`'' 19 _r. - ,. ,, .' _ f { �+' (Sidn`ature and �identitication offotficer .*:,;;;;;if'''/' ,' 1 : a� 4. '�`+ or other compIninant) t X,.d'.�""y" — (Name and ifle) r `, . .(BADGE NO.) COURT APPEARANCE , / DAY OF .."I'- i+' 19 _ '- ,AT M - (ARRAIGNMENT) • -, "` ADDRESS OF COURTµ ,' I PROMISE TO APPEAR-1'WSAID COURT'AT SAID TIME AND' PLACE 4 1 SIGNATURE ''M. / . t r, . , k- . TO COURT 4. p4te.v_z‘M ,N -UNIFORM UNIFORM SUMMONS.AND COMPLAINT/—• KODIAK ISIAND BOROUGH KODIAKISLAND BOROUGH THIRD JUDICIAL DISTRICT SS NO. C— OF ALASKA _ ) COMPLAINT AFFIDAVIT ' IN THE THIRD JUDICIAL DISTRICT COURT OF ALASKA 40"- - ©"- THE UNDERSIGNED, BEING DULY SWORN.. UPON HIS OATH DEPOSES'AND-SAYS: ,. KM.) ON f ei.a, . l " THE '� J 1DAY OF rv: 1 !,? i.,V 19/1? AT <.'-' r5'' -*-M NAME 0-1' 7 f 1 O (DEFENDANT) (PLEASE, PRINT) STREET Cr) (era CITY-STATE ,,- A BIRTH ' AGE DATE RACE SEX ___ HT :;/'t,'r WT. FIRST- MIDDLE PHONE' EYES HAIR r?=`/ A( 50C. SEC. NO. LIC NO KIND/CLASS NUMBER ° STATE VEH. LIC NO STATE YR MAKE STYLE COLOR. AT OR NEAR (LOCATION) PLACE OF EMPLOYMENT k)-, A.44:).". DID UNLAWFULLY IN THE JUDICIAL DISTRICT AND STATE AFORESAID COMMIT THE FOLLOWING OFFENSE: TO WIT' A- ti ',I/6 .4 /J'�//1 ?4 .K / 14/ J• • ' ALASKA I STATUTE OTHER I 1. REGULATION BOROUGH I. ]:4(\ft,ORDIN'ANGE_ ? `'. ,r i,rN ' WHICH IS IN VIOLATION OF THE UNDERSLGNEO FUREI) E R.STAT(S,JHAT HE HAS JUST AND REASONABLE GROUNDS TO BELIEVE. AND DOES BELIEVE, THAT TH EPERSON NAMED ABOY,EtCOMMITTED THE OFFENSE HEREIN SET'FORTH, CONTRARY TO LAW. SWORN TO AND,SUBScRIBED BEFORE ME r , THIS --17 DAY(Of 't ' 19 t`ra f /, _' i h { (Si&nature''and identification of o • I t:. /4/s Jr', s / ,r- 5- or other complainant) f(Namegnddtitie)' t'' ' % L°.°;°::" \--'' (BADGE )10.) ' COURT APPEARANCE:' # I'-'DArof q 1 -AZ --t/ ' ADDRESSOFCOURT S.7 +"�T'`ifG�ie,,. n-`' I ., _7 A ' I PROMISE TO AP.PEAR,9N.SAID'COURT ATlAID'TINE AND PLACE. SIGNATURE r ^=h... r ,.a."'." 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Box 3696 Kodiak, Alaska 99615 Dear Mr. Perrozzi: Telephones 486-5736 - 486-5737 — Box 1246 KODIAK, ALASKA 99615 Re: Zoning Violation Lots 30 and 32, Block 19, Kodiak Townsite This is to inform you that building permit number 5131 issued on August 5, 1983 is null and void per Section 17.03.060 of Borough Code. The permit is in conflict with Section 17.36.070C of Borough Code which states: C. Repairs and Maintenance. On any nonconforming structure or on any building devoted in whole or in part to any nonconforming use, work may be done in any period of twelve consecutive months on ordinary repairs, or on repair or replacement of nonbearing walls, fixtures, wiring or plumbing, provided that the cubical content of the building as it existed at the time of passage or amendment of the ordinance codified herein shall not be increased. Based on an investigation on July 20, 1984 it was determined that the structure on Lot 30, Block 19, Kodiak Townsite is a nonconforming structure because this dwelling fails to meet building setback requirements specified in the Borough Code. Therefore, the construction of an addition onto this structure is not in conformance with Section 17.36.070C of the Borough Code. As a result, and by the authority of Section 17.75.010 of the Borough Code, you are order to "...discontinue the construction or other preparatory activity leading to an unlawful structure." Any additional construction onto your structure is not lawful and must cease immediately. This decision may be appealed to the Planning and Zoning Commission within ten days of the mailing of this notice by filing a written notice of appeal with the Community Development Department stating the reason for the appeal and the relief sought (Section 17.68.020). Should you have any questions, please call. Sincerely, zed Bud Cassidy Assistant Planner/Zoning Officer cmk cc Case file City Building Inspector Complainants hkwd eftWeadz2r- hoeze, (..0 togi ogy ,eff 4/:ort VER. LIC. # NAME STATE ,DATE • /2 pm n.et2D-e-ae (LAST) DOB 0/1# ISSUING 0FFICEIN6Vd. LOCATION/4, (FIRST) STATE (WI.) (PRINT NAME) 7 3 co, BADGE # VIOLATION DESCRIPTION 0 ABANDONED VEHICLE 0 LITTERING TRESPASS 0 0 0 Specific Violation Description (A77:4-4,--76- Are. e.it" "r4-- ("(3/(44. 7/r -6/1/041 C117 e5,e6 be- //I C woe; 7 I acknowledge receiving thil warning and understand that if I do not correct the violation described, a citation will be issued requiring my appearance in c / 5:7 (Violaior:s_Signatike) (Date) _ _ PLANNING AND ZONING COMMISSION WORK SESSION AGENDA JULY 25, 1984 Vie Screening Requirement - Sheffield Hotel Kathy Kinnear A . • ItAck.cc.c4 Addition to nonconforming structure Lot 30,& 32, Block 19, Kodiak Townsite,-7'w" Subdivision Joe Perrozzi cioplattietLytta...c*ort Parking Requirements Revision (Chapter 17.57)1 Restaurants/Bars Meeting Halls Schools/Daycare Indoor Recreation Facilities Warehousing/Industrial Uses Time extension for existing trailer park Kiewit-Groves COlt• 00004C1103 %A...CAN ....11.32A2A214.01.4.14, svii'ist,t4 •••:, • r, • NEW 4 iigg'1:Pf,111W.444f, AiTEAT1ON f!L'IrE41#415 AbDflIof4K'!4;!'114!YE r Vg4.014.40. , - „,-TELNOirsi,`50:340:i76-.6#44,siTZ.1 4,,°-,.,.4.1.,:t,-,1::‘,,,t;,,,.`.tvit,,,,y3r9Va rk• NCV0F3,8U.,ILDINGt',NOW,,Orl 9.,,9hyjag,s,:eit,..-igi,ti,';A.41i123,-,4(z.vd.:::Z:ir E,OF."8CDa;,1,10Vii tit PECIF ON TtAgCX ea UN 1:.*titit'l141 ' 'WC • efirt— . • ,VVIDTHMFAM1TOMT-yv,i; `/E.Vigr, I RD,ERS,;!,!,`:•4',YJA,,!' 161itri.;-44011,137i;!'i' 'i7t0.1),,414',,ATION FOR py1491,N9 'ERT1 F1 C TotAtP. tyr." f°Y1S1SEWER FIXTMSi .. g -o! 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