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LEITE ADD BK 3 LT 6A - ZCPSubmit by Email j Kodiak Island Borough Community Development Department 710 Mill Bay Rd. Rm 205 Kodiak AK 99615 Ph. (907) 486 - 9362 Fax (907) 486 - 9396 h ttpWwww. ko d i a ka k. qs Zoning Compliance Permit p[ Print:Form I Iu IIIIIIIII[IIlIIIuIiIIIIIlIIIIIIIIIIIII Permit No. CZ2010-063 Property Owner / Applicant: Mailing Address: Phone Number: Other Contact email, etc.: Legal Description: Street Address: The following information is to be supplied by the Applicant: Alan and Barbara Large 1723 Mission Road, Kodiak Alaska 99615 907-486-2908 Lot 6A, Block 3, Leite Addition 1723 Mission Road, Kodiak Alaska 99615 Use & Size of Existing Structures: Single-family Residential Description of Proposed Action: Replace 4 bedroom windows with triple pane (3 left and 1 right opening) Site Plan to include: Lot boundaries and existing easements, existing buildings, proposed location of new construction, access points, and vehicular parking areas. Staff Compliance Review: ZONING: R-1 Parcel No. R1200030060 Lot Area: 19,018 Square Feet Lot Width: 60' Bldg Height: 35' Front Yard: 25 ' Rear Yard: 10 ' Side Yard: 5 ' Prk'g Plan Rvw? Not Applicable # of Req'd Spaces: Plat / Subdivision Requirements? Does the project involve an EPA defined facility? NA N/A If YES, do you have an EPA Return Receipt of Notification? "Permit will not be issued until receipt is submitted to K18" N/A Coastal Policy Residential Subd Case No. NA Driveway Permit? Septic Plan Approval: Fire Marshall: NA Consistent? Yes Plat No. NA Attachment? No Bld'g Permit No. Pending NA NA Applicant Certification:hereby certify that will comply with the provisions of the Kodiak Island Borough Code and that have the authority to certify this as the property owner, or as a representative of the property owner. I agree to have identifiable corner markers in place for verification of building setback (yard) requirements. Attachments? Not Applicable List Other: Date: Dec 14, 2009 Signature: This permit is only for the proposed project as described by the applicant. if there are any changes to the proposed project, including its intended use, prior to or during its siting, construction, or operation, contact this office immediately to determine if further review and approval of the revised project is necessary. ** EXPIRATION: A zoning compliance permit will become null and void if the building or use authorized by such permit Is not commenced within 180 days from the date of issuance, or if the building construction or use is abandoned at any time, after the work Is commenced, for a period of 180 days. Before such work can be recommenced, a new permit must first be obtained. (Sec. 106.44 Expiration. 1997 CIBC) per NBC 17.03.060.** CDD Staff Certification Date: Dec 14, 2009 CDD Staff: Duane Dvorak Payment Verification Zoning Compliarfg{tmit Fee Payable in Cash Office Room # 5 Construction Disposal Deposit Payable In Cashier's Office Room # 104 Fee Schedule Less than 250 sq $250.00 iY K 710 MI REC DEC DIAK I BAY END 14 2009 BLAND BOROUGH W., KODIAK,AK 99615 V "/ BERNIE BROTHERS Roofing • Siding • Windows • Decks y��Fire and Water Restoration NAME /7 ' I i' 11 ri'5 Lct r ADDRESS '' /i'j'� I� l�am�++ tom. CIT, STATE AND ZIP CODE 1'�j>� 1Cf / JOB LOCATION IF DIFFERENT Proposal �I 5 39-4354e Bernie Stallard • Owner P.O. Box 3855 • Kodiak, AK 99615 Office: 481-3900 • Fax: 481-3922 DATE PHONE (HOME) CC> — yaaq OFF: D N • TEAR OFF REQUIRED D TOP LAYER(S) D ENTIRE ' OOF TO DECKING AND INSTALL N INSTALLA710 D WINTERGAU TWREE FEET ABOVE G ERS ❑ W(NTERGAURD ONG WALLS AN+SKYLIGHTS D WINTERGAURD IN LLIES O INSTALL NEW 3 -TABS • ' RCH ' CTURAL • SHAKES • STEEL D MANUFACTURERS WAR F YEARS D COLOR* O INSTALL' # FELT D PLU > = LNG VENT FLASHING ❑ R VENTS ❑ - EPLACE BAD DECKING AT $ PER SHEET OF PLYWOOD EXTRA RRANTYAPPCIE _CSKMANSHIP WARRANTY OF (. YEARS rdCLEAN UP 8 HAUL AWAY ALL TRASH D CLEAN GUTTERS ❑ RU FRAIL MAGNET PRICE INCLUDES ALL LABOR, MATERIALS & TAX e Propose hereby to furnish material and labor - complete In accordance with above specifications, for the sum of: dollars ($ Paym ntsto m til h c1avice AltmemnaI is guaranteed to be as specified. Alt wodi to be immaterial In a workman Eke manner C� r amonang to android practices Any alteration or deviation from above specmcadons ImoMng extra costs MD be executed only upon written orders, and vein become an extra charge over and above the estimate. AO agreements contingent upon sakes, akeddents or delays beyond our control. Owner to carry fire, tornado and other necessary lawanm. Our workers are fully covered by Workmen's Compensation [muteness. Authorized Signature CGerrr-tante Pr11ppcsal The above prices, specifications and conditions are satisfactory and are hereby accepted. You are authorized to do the work as specified. Payment will be made as outlined above. This proposal becomes a legal and binding contract atter 72 hours of acceptance. Date of Acceptance: AGREEMENT THIS AGREEMENT is made this/47 day of 1VUU b -e -r 1992, between the Kodiak Island Borough ("Borough") and Arctic Sun Fisheries, owner of premises described below ("Property owner"), to affirm the following understanding: 1. Property owner owns property located at Lot 6A, Block 2, Liete Addition, Kodiak, Alaska; 2. The above-mentioned property was used for the outside storage of large items of fishing gear prior to June 5, 1980. 3. Large items of fishing gear, including but not limited to crab pots, large tendering gear, shelter deck, skiffs and trailers, pot trailers, crane truck, flatbeds, and other associated large gear have continuously been stored outside the building, on the above -referenced property. 4. THEREFORE, the Borough and Property owner agree: a. That the property has permitting storage of which cannot feasibly use shall continue; b. Smaller items of gear bait cans, long line spare parts and like stored inside. DATE / � �/i 5P2- DATE //-it-91 DATE w� ®a COMMODE FR MENT N�ENT KO acquired grandfather rights large items of fishing gear, be stored inside; and such such as extra lines, buoys, tubs, power blocks, small items shall continue to be AGENT FOR SHERIES S :scribed and swo m ` this date. Not the State of Alask My Commission Expi to befpte _C ary Pubi'ie in-ti`y a. _: ti res 9-12?-tt95 November 18, 1992 The Hon. Jerome Selby, Mayor Kodiak Island Borough 710 Mill Bay Road Kodiak, AK 99615 RE: Lot 6A, Block 3 Leite Addition outside gear storage Dear Mayor Selby: This letter will confirm our conversations of the week of October 26, in which you advised me to provide you with letters showing the historical use of the property at 1723 Mission Road. Enclosed are letters showing that large items of fishing gear, which are not practically stored inside, have always been stored outside on that property. I have also included letters from individuals who were on the property during the last twelve months, which attest to the continued use of that property for outside storage. It is my understanding that the Kodiak Island Borough will provide me with a letter acknowledging both the historical and continued use of this property for outside gear storage. I anticipate hearing from you in the near future, and thank you for your cooperation in this matter. Sincerely, C. L. Lowenberg cc: Kodiak Island Borough, Community Development Department �D NOV 1819,92 COMMUNITTYY DEVELOPMENT November 18, 1992 Kodiak Island Borough 710 Mill Bay Road Kodiak, AK 99615 RE: Lot 6A, Block 3 Leite Addition Outside gear storage To Whom it May Concern: I am familiar with the historical use of the property located at 1723 Mission Road, because when my brother Terry Lowenberg purchased that parcel in 1979, I helped him move on to it. At that time, fishing gear was stored outside these buildings. Terry Lowenberg continued to store large items of gear, such as crab pots, large tendering gear, shelter deck, skiffs and trailers, pot trailers, a crane truck, flat beds and other associated large fishing gear outside the buildings. During the time that Terry owned the property, I managed it for him, and he continued to store large items outside such as those listed above, which cannot feasibly be stored inside a building. A company which I own purchased the property in 1991. We have continued to store items of gear such as those listed above outside, since inside storage of those items is not feasible. Sincerely, C. L. Lowenberg NOV 1 81992 GGMMUNITYVELOPMENT P.O.Bax 2074 PATRICIA LEE •CGIAE.MASKA Dick & Kandi Powell 486 - 4250 11/16/92 Kodiak Island Borough, I have lived at 1720 Rezanof across from the property of Terry Lowenberg 1723 Mission.I have lived here since 1968. I know Terry Lowenberg stored fishing gear and related items on his property prior to 1980 as I can see his property from my living room.Also he and I partner fished our boats together during this time and did interchange gear at times. At this present time I can still see gear stored there. COMMUNITY DEVELOPMENT FIV Trailblazer Alaska Seafood Producers, Inc. Midnite Pacific Enterprises 4385 Yaquina Bay Road • Newport, Oregon 97365 • (503) 265-9307 P.O. Box 2089 • Kodiak, Alaska 99615 Gary L. Painter Jeannie Painter 11/8/92 RE:PROPERTY OWNED BY TERRY LOWENBERG AT 1723 MISSION ROAD IN KODIAK, ALASKA. TO WHOM IT MAY CONCERN: In 1978, several of us bought a piece of property from Joe Majdic for gear storage. Terry Lowenberg was one of the purchasers of that property. In 1979, Terry purchased some property at 1723 Mission Road, for use as storage. (And to reside on.) We (The other partners in the "Majdic property.") purchased Terry's interest in our property. During 1979, some others, including myself, helped Terry move his gear off of the "Majdic property," and on to Terry's property on Mission Road. At the time we helped Terry move his gear, there was an existing shed used for storage, as well as miscellaneous fishing gear, an old car, etc. on his new property. 07t- SW __Ca .._ addeCia 191419-22c-- daro, 4:7" e7S /VI Li/9cl_ A0,_Cie-esese, Zcia. co4cbk F/U ctt kpjjU cad, Ritc vt_ci. 0A co 4- vart_ihor c>Ock /511 ttso enn 641' -15& , Ithaleg-- 41- .. kik. -64 -111tS1.4214 C44._Eostir - — ait4 9_10wizirt 0-917.11. _ cvft,a _ I cia t 8-10 npmcwr "nuuStiatiOiT • 11 viqg - TOTAL P.001 11/06 Kpdiak Island Borough This letter is in regards to the property located at 1723 Mission. My name is Harry Anderson and I web and repair pots. From 1985 till December of 1990 I worked on the Lowenberg's pots in the gear shed there. In December of 1990 I moved my webbing and repair to another gear shed. I also haul gear for the Lowenberg boats^ In both Oct and Dec of last year 1991 I hauled pots from this yard to the boats. Ever since I have worked for them they have always used this property to store gear and stuff. Harry Anderson November 8,1992 Kodiak Island Borough Kodiak, Alaska 99615 To Whom It May Concern: Re: 1723 Mission Road Kodiak, Alaska 99E15 I, Terry Lowenberg, purchased the above mentioned property in 1979. When I purchased the property it had miscellaneous fishing gear, automobiles, a storage shed, and miscellaneous piles of wood and lumber. I began cleaning up the property right away and I replaced the storage shed with a new more modern locking one. I then fenced the property as I planned on using it for storage myself. Upon purchase I moved all my fishing gear onto the property, such as drag nets, drag doors, crab pots, shelter deck, tendering gear, tables, chutes, and other drag equipment. I also parked my two crab pot trailers, two flat bed trucks, one crane truck and one seine skiff in the yard. The shed was constructed to hold bait cans, crab line, power blocks., small tendering gear, long line hooks, and long line buoys. In 1985, I obtained a variance to add to the shed. From 1979 to the present I have always stored the larger equipment outside, with no intention of ever moving it into the shed. The only gear that was kept inside was the smaller equipment that is more susceptible to the elements. In 1991, I sold the property to a company which is owned by my brother, C.L. Lowenberg. The purpose of keeping the equipment outside of the storage shed was to 'preserve the "Grandfather Rights" associated with the above mentioned property. COMMUNITY DEVELOPMENT DEPA Terry Lowenberg F.O. Box 647 Newport, Oregon 97365 (503) 265--5200 w iStOS MELVIN M. STEPHENS, II A PROFESSIONAL CORPORATION ATTORNEY AT LAW 104 CENTER AVENUE, SUITE 206 P. O. BOX 1129 KODIAK, ALASKA 90016 TELEPHONE (907) 486-3143 October 26, 1992 Kodiak Island Borough 710 Mill Bay Road Kodiak, Alaska 99615 Attn: Jerome Selby, Mayor Re: Lot 6A, Block 3, Leite Addition Gea Storage Grandfather Rights (Lowenberg) My File No. 8529.05 Dear Jerome: OCT 2 7 92 . JAK ISLAND BOT: MAYOR'S 01=FI:... Sue Geveden, who represents C. L. Lowenberg, indicates that she has recently spoken to you concerning her client's dissatisfaction with my November 15, 1991 opinion to the Community Development Department concerning the existence or non-existence of gear storage grandfather rights with respect to Lot 6A, Block 3, Leite Addition and that you encouraged her to speak with me about whether I would be willing to withdraw or modify that opinion. She recently did so and passed on to me a contrary opinion which Mr. Lowenberg has obtained from Lee Sharp of the Preston, Thorgrimson firm in Anchorage. For your convenience, copies of Mr. Sharp's opinion dated October 12, 1992, Sue's letter to me of October 20, 1992, and my original opinion of November 15, 1991 are enclosed. While I am not inclined to modify or withdraw my opinion, I would be glad to clarify it. My conclusion that any grandfather rights for outdoor storage of fishing gear on the property here in question were waived in the course of the property owner's applying for and accepting a variance in 1985 was based solely upon an analysis of the Community Development Department's written records. I did not attempt to investigate or establish facts not reflected by those records. Based upon my review of the documents, it was my opinion that the cessation of all further outdoor storage of fishing gear was a quid pro quo for the property owner's obtaining the variance permitting an addition to an accessory building to remain on the lot. The variance was granted subject to two conditions, the second of which was that: All outdoor storage that is feasible to move shall be placed inside the accessory building. As I pointed out in my original opinion, this language does not flatly state that the applicant for the variance was required to give up all grandfather rights to outdoor storage in return for the variance. Such a conclusion is, however, supported by other parts of the record, including a finding of fact explicitly stating that "all outdoor storage must be relocated within the structure" and 40 Jerome Selby -2- October 26, 1992 statements made on the variance application and in a supporting petition which was apparently presented to the Planning & Zoning Commission by the applicant himself. I do not suggest that the issue is free from doubt. What we are dealing with here is the question of what was meant by the second condition attached to the variance I feel the Planning & Zoning Commission had the authority to condition the granting of the variance upon the property owner's agreement to stop all further outdoor storage on the lot. Whether the second condition quoted above actually reflects such an intent is a matter upon which reasonable persons could disagree. If the Planning & Zoning Commission or the Borough's zoning enforcement officials choose to interpret that condition as not having required the cessation of all outdoor storage of fishing gear, I will most certainly take no offense. The condition itself uses the word "feasible," thus implying that it does not prohibit all further outdoor storage on the lot. The statements made on the variance application ("inside storage will prevent unsightly outside storage") and on the supporting petition presented by the variance applicant ("we would rather look at a building versus outdoor storage"), are susceptible of differing interpretations and, in and of themselves, might not have led me to conclude that the Planning & Zoning Commission meant to bar all further outdoor storage when it attached the second condition to the variance. The finding of fact quoted above is, however, explicit. Given the fact that the applicant accepted the variance without objecting to the finding that it was to result in all outdoor storage being relocated within the structure, I think the records which I reviewed support the conclusion that the second condition attached to the variance was meant to require a waiver of any rights the applicant otherwise might have had to the continued outdoor storage of fishing equipment on the property. Once again, I stress this conclusion is not unassailable. Mr. Sharp, in particular, supports his argument to the contrary with a host of facts concerning the exact nature and extent of the outdoor storage which existed prior to the variance application and suggests that, at the hearing on the variance, "it was specifically discussed and understood by all that crab pots would not be stored in the new structure and that crab pots would continue to be stored outside." None of these facts are reflected in the record which I reviewed. If one takes them as a given and assumes that there are no contrary facts or circumstances which should be considered, then I think the balance tips in favor or Mr. Lowenberg's interpretation of the second condition to the variance. Let me point out, however, that this approach requires that one simply disregard entirely the explicit language of the third finding of fact which the Planning & Zoning Commission adopted. Mr. Sharp concludes his opinion of October 12, 1992 with the prediction that the Borough "will have a long, steep, uphill battle which they are (sic) much more likely to lose than to win if a court were to resolve the question of whether, by the application for and acceptance of the variance in 1985, the owner of the property waived his right to continue all outdoor storage on what is now Lot 6A." While that conclusion is based upon Mr. Sharp's assumption with the additional facts set forth in his opinion letter can, in fact, be established, and while it strikes me as somewhat overly confident, let me stress that I am not suggesting that the Borough engage in such litigation. Indeed, I think it should avoid it if at all possible. Jerome Selby -3- October 26, 1992 It is my understanding, however, that the question which is being raised by Mr. Lowenberg does not arise because of any threatened enforcement action on the part of the Borough. Indeed, I am told that the outdoor storage of crab pots, skiffs and other fishing gear upon Lot 6A has continued unabated since the variance was granted in 1985, that none of the neighbors have complained, and that the Borough has neither taken nor threatened any enforcement action with respect to the outdoor storage. The problem we are facing, then, arises not because the Borough has taken action to terminate the outdoor storage on Lot 6A, but solely because the property owner is seeking what amounts to a written guarantee that it will never take such action in the future. If the Planning & Zoning Commission feels it appropriate to address these concerns, then it may wish to review for itself the files associated with the granting of the variance in 1985 as well as the conflicting opinions of myself, Ms. Geveden and Mr. Sharp, and issue to the present property owner a more or less formal written clarification of its interpretation of the second condition attached to the variance which was issued in 1985. I have no personal objection to such an approach and I do not suggest that the Planning & Zoning Commission should consider itself "bound" by my opinion of November 15, 1991. If the Commission chooses to take this approach, however, let me once again recommend that it view this matter as a rare exception to a general policy of not getting into the business of issuing formal opinions as to the existence or nonexistence of grandfather rights concerning nonconforming uses of property within the Borough. A property owner who claims to have such rights is free to advise a prospective purchaser of his position and of the facts concerning the Borough's lack of enforcement action concerning the nonconforming use in question. In the absence of any complaints from neighboring property owners or threatened enforcement action concerning the nonconforming use, however, providing the property owner with an "advisory" opinion concerning the Borough's view of the existence and scope of his grandfather rights involves taking an initial step onto what may prove to be a very slippery slope. If the opinion favors the property owner's view of his grandfather rights, he will undoubtedly take the position that he is entitled to rely upon it and that any further consideration of the issue is foreclosed. On the other hand, if the property owner is disappointed with the opinion, he may well feel compelled to pursue the matter. In most situations, then, I think it is inappropriate for the Borough to issue or obtain legal opinions on such matters. MMS:pjd Enclosures Selby. 023 Sincerely, Melvin M. Stephen SIEVE COLE STEVEN P. GRAY susm R. GEVEDEN GREGORY P. RAW' OF COUNSEL 11. DANFORTH OCiO 'Admitted to Washington and Alaska Bar October 20, 1992 GRAY, GEVEDEN, COLE & RAZO A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 326 CENTER AVENUE. SURE 203 KODIAK. ALASKA 99615 Melvin M. Stephens Attorney at Law P. O. Box 1129 104 Center Ave., Suite 206 Kodiak, AK 99615 RE: Lot 6A, Block 3 Leite Addition Your file no. 8529.05 Dear Mel: COMMUNITY DEVELOPMENT DEPARTMENT TELEPHONE (907)466-8506 C. L. Lowenberg, agent for the owner of the above -referenced property, has requested that I contact you with respect to your memorandum to the Kodiak Island Borough Community Development Department, dated November 15, 1991. Mr. Lowenberg had asked the Community Development Department to decide whether he could continue to store gear outside the buildings on that property, as has been done since 1979. Rather than render it's own decision, the Community Development Department provided him with a copy of your legal memorandum. tTliCB5iough-Mayorhas=suggested-to-himthat7 [you-might-be-persuaded=to= modify=y_our_opinian7 BACKGROUND As you correctly guessed in your memorandum, when Terry Lowenberg purchased this property in 1979, he immediately began storing crab pots, skiff, trailers and all varieties of fishing gear on the outside of the home. In 1985, he enlarged his accessory building. Since the building as enlarged occupied more than ten percent of the lot area, it was necessary for him to seek a variance from the Planning and Zoning Commission. The variance was granted upon condition that he re -plat lots 6 and 7A (creating Lot 6A) and that all outdoor storage as feasible be moved into the accessory building. Terry Lowenberg thereinafter moved all of his smaller items into the accessory building, but the crab pots, skiffs and trailers remained outside. Terry Lowenberg subsequently sold the property to Arctic Sun Fisheries, who has continued to store these larger items outside the building. LEGAL ANALYSIS K.I.B.C. Sec. 17.18.020(a) provides that accessory buildings are a permitted use in an R-1 zoning district. Outside storage is 2777 rm 1 Melvin M. Stephens letter October 20, 1992 Page 2 not a permitted R-1 use. K.I.B.C. Sec. 17.36.010 provides that where a land use legally existed prior to the adoption of an ordinance changing that use, the non -conforming use may continue, "within the limits set forth in this chapter". K.I.B.C. Sec. 17.36.050(b), which applies to non -conforming uses of structures, permits a non -conforming use of a structure to extend into any part of the building, but provides that the use may not be extended to the land outside the building, "where such land was not so used at the effective date or adoption of this chapter". K.I.B.C. 17.36.060 permits that non -conforming uses of land may continue provided that the non -conforming use is not enlarged, increased or extended to occupy a greater area of land than was occupied at the time the ordinance was passed; that the non- conforming use is not be moved to any other portion of the lot and that the grandfather rights are extinguished if the non -conforming use ceases for period of more that one year. Thus, the Code clearly provides that, a non -conforming use exists as long as the same use continues. In Stephan and Sons v. Anchorage, 685 P.2nd 98 (Alaska 1974) two lots of land, covering an area of two to five acres, had acquired "grandfather rights" for use as a gravel pit. The subsequent purchasers attempted to extend the gravel mining operation over the entire 53 -acre parcel. The Anchorage Planning and Zoning Commission ruled that the gravel pit operations must be restricted to the original two lots. The Alaska Supreme Court rejected the argument that appellant should be permitted to enlarge the original non -conforming use, but nowhere was it suggested nor implied that the original non -conforming use was extinguished by the enlargement of the parcel. Fields v. Kodiak City Council, 628 P.2nd 927 (Alaska 1989) addressed the denial of a variance request, and broadly stood for the proposition that boards of adjustment must make findings of fact. However, in reaching the decision that the matter should be remanded to the Board of Adjustment for fact finding, the Alaska Supreme Court did note that equitable issues, such as "clean hands" and estoppel are not properly' the province of administrative agencies. The agency should simply determine from the Code whether requirements are met and .so rule. Therefore, it is our position that Mr. Lowenberg's application for a variance in order to expand a permitted accessory building beyond building size requirements could not operate as a "waiver" of his grandfather rights to store large items outside the building. Since the code does not specifically provide that waiver extinguishes rights, that requirement may not be equitably implied. Additionally, the variance itself does not require Mr. Lowenberg to move the large items inside the building. Rather, it Melvin M. Stephens letter October 20, 1992 Page 3 requires him to move those which feasibly may be moved inside the building. Presumably, since the variance itself was written before the findings of fact were written, the words of the variance were based on the recency of testimony which indicated that movement of some items was not feasible. Finally, it is our position that we simply cannot look to the findings of fact in this case. The findings were dated September 18, 1985, while the variance was granted August 23. It appears likely that the Community Development Department attempted to add, via findings of fact, conditions which were pot part of the Planning and Zoning Commission's decision to grant the variance. CONCLUSION Mr. Lowenberg is now in a quandary. He has asked the Community Development Department to take a firm stand on the question of whether or not he may represent to prospective purchasers that outside storage is a permissible grandfathered use of the land. Rather than give him a firm decision, the Community Development Department has delivered to him a copy of your Memorandum of Opinion. The Department also delivered a copy to a prospective purchaser of the property, who thereafter rescinded an offer to buy the property. rSince-heLhas_no`decision_frbm. which__to7 ¶appealto thetCo`mmnaityy—Development7Department, the`Borough-Mayor rhas_suggested that_he_make_his_arguments _to -you: Will you please reconsider your opinion, and, if you are persuaded that our interpretation is valid, will you so communicate to the Community Development Department? We thank you very much for your cooperation in this matter. Sincerely, <o 4 ) Susan S. Geveden SSG/srp cc: C.L. Lowenberg PRESTON PRESTON THORGRIMSON SHHDLER GATES & ELLIS ATTORNEYS AT LAW October 12, 1992 CONFIDENTIAL - ATTORNEY/CLIENT P Mr, C. L. Lowenberg P.O. Box 767 Kodiak, AK 99615 SWm 400 470L.Sven Anchorage, AN 99501.1037 Telephone: (907) 276.1969 Facsimile: (907) 2764365 COMMUNITY DEVELOPMENT DEPARTMENT EGE Tto: Fishing Gearlcrab Pot Storage, lid CA, ek 3, Lao Addition Subdivision Dear Mr. Lowenberg: I have examined the materials provided to me by you relating to the zoning history of the subject lot as well as information you have provided to me orally that is relevant to the continued use of the lot for the storage of crab pots. The following are the relevant facts as I understand them. FACTS Prior to 1985, Lot 6 and Lot 7A of Block 3 of the Leite Addition Subdivision on Potato Patch Lake were held in common ownership and were used as a residence and for the indoor and outdoor repair and storage of fishing gear as well as fishing related and other equipment. There was a residential structure located on the southeast part of Lot 6 (abutting Mission Road). In addition, there was a 40 x 40 foot accessory storage structure that was located toward the shoreline of the lake on the northwest end of Lot 6. The open space on both Tots and the accessory building were used for the storage of fishing gear and fishing 'elated and other equipment. This gear and equipment consisted of, among other things, such things as crab pots, skiffs, buoys, webbing, lines, tendering gear, halibut gear, cables, chutes,lines, as well as trailers, trucks and other equipment. The-mse.of_the_accesso _building:and"the outside=stdmge "grandfathered"-noncenfotming_use. Different types of fishing gear and equipment are stored on Mei-1(M `various locations on. a seasonal basis each year. The major pan of the outdoor storage has consisted of slab pots, but included lines, buoys, etc. In 1985, a 20 x 40 foot storage shed was constructed abutting the northwest (lake) side of the existing 40 x 40 accessory building. The printery entrance to the new structure is on the southwestern side of the building, although a door has been cut in the back wall of the 40 x 40 structure to give access to the new structure. Upon completion of the construction of the 20 x 40 structure, lines, buoys, and other equipment that had formerly been stored outdoors were moved inside and the structure was immediately filled to capacity with gear and equipment that had formerly been stored outside. Vitl en.it ra ne.to.the attention—of ihaboiough that the•addition inayhave.bean:constructed rm: io1ation of tbe-zoning_code that- prohtblts_an.accessory b iilding from occupying more -then 'ten=percent=af_a 1ot;_the owner_apphed_for_a variance_to_permit-the existing 20.x-401:structure Bellevue • Ponhnd • Seattle • Spokane • 7Leoma • Washington, D.C. .4 Partnership Including A Professional Corporation October 12, 1992 Page 2 ito_remain-even-though-the,ten-percent coverage_liinitatlon of_thebidinance. vas exceeded' At the August 21, 1985 Planning & Zoning Commission meeting, a hearing was held on the variance application (Case 85-042) and the Commission granted the variance with two (and only two) conditions. These conditions were: 1. That the lot line between Lot 6 and 7A be vacated, and 2. That the outdoor storage that can feasibly be moved inside the storage structure be moved inside. By a letter dated August 23, 1985, the Community Development Department notified Terry Lowenberg (the variance applicant/property owner) that the Planning Commission had granted the requested variance on August 21, 1985 with the following two conditions: 1. Lots 6 and 7A, Block 3, Leite Addition shall be replatted into one lot. 2. All outdoor storage that is feasible to move shall be placed inside the accessory building.` In good faith reliance upon the grant of the variance, the applicant complied with the first condition and had th; line between bits 6 and 7A vacated, creating a new Lot 6A. The tape recordings of the Planning Commission meeting and hearing of August 21, 1985 are no loner available. However, Mr, Lowenberg states that he attended the meeting and discussed with the Commission the use of the property and that he specifically pointed out to the Commission that the shed would be used for the storage of line, buoys and other similar equipment. The Commission saw this as an aesthetically positive step. It=was-specifically giscussed-and understood by all that crab=pots i oald=not:be-storedln tho_new-structure and that crab-pots_would_continueao_be stored_outside. The structure would be used for the fishing gear and equipment that it was feasible to move inside. In fact, at the time of the variance application and hearing, the new structure was already being used to its capacity for that purpose. No crab pots were being stored inside at that time nor was it contemplated by either the applicant or the Commission that crab pots would be moved inside. In fact, it was physically impossible to have moved all of the crab pots on the site into this 800 square foot structure. After the variance was granted, a building permit application was submitted. The Zoning Administrator approved the permit on September 1, 1985 and the permit was ultimately issued on September 9, 1985 noting that the permit was for a 20 x 40 accessory structure addition that was authorized by a variance in Case 85-042 by the Planning & Zoning Commission on August 21, 1985. By a memorandum dated September 6, 1985 to the Planning & Zoning Commission from the Community Development Department, the department recommended various findings of facts to be adopted by the Commission in support of their grant of the subject variance. Suggested finding No. 3 stated: 'Note the difference between this language and the language above adopted by the Commission when it granted the variance. 2 October 12, 1992 Page 3 Granting of the variance will not be detrimental to the public's health, safety and welfare because all outdoor storage must be relocated within the structure. This will eliminate a potential attractive nuisance to children. At its meeting of September 18, 1985, the findings of fact suggested by the Community Development Department. including Finding of Fact No. 3, were adopted by the Planning & Zoning Commission, The question has now been raised as to whether the owner of the property has waived or lost his right to continue outdoor storage of crab pots on Lot 6A (formerly Lot '6 and Lot 7A). AISCUSSION Nonconforming uses are uses or situations that do not meet the requirements of a zoning code but which, because they were lawful prior to the enactment of the restrictions, are given "grandfather" rights to continue. Because they are generally considered to be incompatible with permitted uses, their continuation is discouraged through the imposition, of various additional restrictions. For example, if a nonconforming use of land is abandoned for a year or more, it may not be reinstituted; if a nonconforming structure is moved, it must thereafter be made to conform. Under the Kodiak Island Borough Code, there are four distinct categories of nonconforming situations, They are; 1, Nonconforming lots of record (KIBC 17.36.030). These consist essentially of lots that fail to meet minimum area or dimensional requirements for the district in which they are located. This nonconformity Is not involved in the question addressed here. 2. Nonconforming structures (KIBC 17.36.040). This includes violations that are caused by structures that are too high, too close to a property line, that occupy a larger percentage of the lot than is permitted, etc. The question asked does not involve a nonconforming structure. 3. Nonconforming uses of strucnrres (KIDC 17.36.050). This category focuses on the actual use made of a structure as distinguished from the usa made of open space and as distinguished from questions of whether the structure is too tall, encroaches into a side yard, and similar questions that depend on the physical aspects of the structure. 4. Nonconforming uses of land (KIBC 17.36.060). This usually involves uses that are not within a structure and include such things as gravel extraction and processing operations, batch plants, and outdoor storage of equipment, machinery, materials, etc. It is this category of nonconforming use that is involved in the question being addressed. For_purposes ofahis-discussion-_it=isessentia1that_the iiistindtiolibetween't_he use_madei gifa ctnrcrrrrp,_and_the, me-made-of_landfie_keprin-mind. The reason for this is that when certain changes are made to a stnicture containing a nonconforming use, such change triggers the requirement that the nonconforming use of the structure cease. See KIBC 17.36.050A. However, the physical change of a structure on a lot containing a nonconforming use of land 3 October 12, 1992 Page 4 does not trigger any such requirement with respect to the nonconforming use of the land. For example, a structural change to the accessory building on Lot 6A does not, in any way, affect the rights of the owner to continue his or her nonconforming use of the land, even though k might affect the right to continue the nonconformity of the stmentre. Kodiak Island Borough Code 17.36.060 clearly sets out the requirements that apply to the exercise of a nonconforming use of land as well as the conditions that will cause the loss of the right to continue a nonconforming use of land. This section provides that a nonconforming use of land may not be enlarged, increased, extended, or movedto occupy a different potion of the lot than was used or occupied when the nonconforming use rights arose. This section provides that the right to continue a nonconforming use of landis lost if such use of the land ceases, for any reason, for a period of more than one year. There are no other bases in the ordinance for the loss of nonconforming use rights in an open space use of land. Note also that It is only the abandonment for a year or more that causes a loss. An expansion or a move to a part of the parcel not previously used is merely a violation,.and does not trigger a loss of the right. Thus, if you have continued your nonconforming outdoor storage of crab pots without any interruptions exceeding one year, that right should still be intact unless you have, through some other action, voluntarily waived or bargained away that right. This leads to an examination of the variance obtained for the 20 x 40 accessory building construction that occurred in 1985. By a memorandum dated November 15, 1991 from the Borough Attorney to the Kodiak Island Borough Community Development Department, the Borough Attorney indicated that he believed your rights to outdoor storage on Lot 6A had been waived "by the application for eine] acceptance of a variance in 1985." I believe that a careful analysis of the record and of other relevant facts leads to a different conclusion. tI_have:ass—ifnredafrithe:purpose_otthis dlscussioa,_that:the present.outdobr_storage_of1 Cctab=pots.aadaither_gear and-equipmencis.a valid.nonconforming-use.ordie:land: The Borough Attorney correctly notes that KIBC 17.36.020 provides that it is the intent of the code chapter on nonconforming uses and structures that nonconforming uses not be "enlarged upon, expanded or extended, nor be used as grounds for adding other structures or uses prohibited elsewhere in the same district." however, the outdoor storage of crab pots has not been "enlarged upon, expanded or extended, nor used as grounds for adding other structures or uses prohibited elsewhere in the same district." The crab pot storage remains essentially as it has always been. Further, this language in the intent section is directed to ensuring that nonconforming uses are limited and constrained to their original place, size, etc. It does not focus on reasons for destroying the nonconforming use rights. Tlus conclusion is further bolstered by the earlier intent language in this section that nonconforniities are to be permitted to continue until they are removed. Not only does this language not lead to the conclusion that nonconforming use rights may be relatively easily waived, it seems more consistent with the usual rules surrounding waiver. These are that before one is deemed to have waived a substantial right, such as is involved here, the waiver must be knowingly and intelligently given. That is, the person trust or should have been not only aware of the consequences of a waiver, but must or should have known that the acts in which they were engaged constituted a waiver. As becomes clear in the discussion that follows, neither requirement was met. The Borough Attorney begins his analysis of the conditions of the 1985 variance by restating the second condition put on the variance as that condition was set out the 8-23-85 4 • October 12, 1992 Paget 1 Planning Department letter. to Terry Lowenberg, not the language actually adopted by the Commission. Please refer to the facts above and very carefully compare the language that was actually adopted by the Commission, as reflected in the Planning & Zoning Commission minutes of 8-21-85, to the language in the letter. The Planning Commission required only that the outdoor storage that can feasibly be moved inside. be moved inside the storages. structure. The Planning Department, however, restated this to require that all outdoor storage that feasible to mov@ is to be placed inside the accessory building. Note that there is a substantial difference between what can feasibly be moved inside and what can feasibly be moved. Because all the equipment and material stored on the site was moved, and is regularly moved throughout the fishing season, it would follow that all such material and equipment "is feasible to move." It would, under the Planning Department statement of the restriction, be required to be moved inside the accessory building. This would be patently impossible as only a small part of all of the outdoor storage could possibly have been moved into the storage building, even though it was feasible to move the gear and equipment. Further, at the time of the application, the subject accessory building had already been filled to its capacity with gear and equipment that had previously been stored outside. On the other hand, the statement of the requirement asset out in the minutes of the Planning Commission are reasonable, rational and make sense. This restriction requires that the outdoor storage that can feasibly be moved inside be stored inside the structure. It did not set up a condition that was physically impossible. Further, the discussion that occurred between Mr. Lowenberg and the Planning & Zoning Commission when the variance application was heard, clearly indicates that all those involved (Mr. Lowenberg and the Commission members) understood that the unsightly piles of line, buoys and other such gear would be stored inside and that the crab pot storage outside would continue. I believe that an analysis that begins with the actual language adopted and approved by the Planning Commission (rather than the Planning Department's slightly different restatement of the requirement) leads to the conclusion that the Planning Commission did not require all outdoor storage to be placed inside. As between the language adopted and approved by the Planning Commission and the language subsequently set out by the Planning Department, the language of the Planning Commission would control. This, then, leads us to the question of the effect of Finding No. 3 adopted by the Planning Commission a month after it granted the variance with the requirement just discussed. In that finding the Commission found that the variance would not be detrimental to the public health, safety and welfare since "all outdoor storage must be relocated within the structure and that this would reduce the attractive nuisance dangers to children. The word "feasible" was dropped altogether by the Department. These findings were drafted by the Planning Department and submitted to the Planning Commission which adopted the findings without change, and apparently without discussion; at least no discussion was noted in the minutes. The findings of an adjudicatory body such as a Planning Commission when considering and acting upon a variance application, must be supported by factual matters presented to the body. Courts require that such bodies make findings of fact that support their ultimate decision to grant or deny the request. Courts note that requiring such bodies to make findings of fact helps members of the body to focus on the relevant facts and to reach a reasoned decision. Thus, findings of fact are normally determined prior to, or while making the decision, not a month later. In any event, findings of fact must be consistent with factual matters that are actually presented to the Commission. It is most unfortunate that the tape recordings of this particular proceeding are no longer available. However, the discussion related to me by Mr. 5 October 12, 1992 Page 6 Lowenberg that he said took place at the variance hearing (and which is set out above in the Facts) is clearly at odds with Finding No. 3 as it was drafted by the Planning Department and ultimately adopted by the Planning & Zoning Commission. Such a finding could not stand in the face of such a discussion before or with the Planning Commission. In any event, it is the function of findings to support the grant (or denial) of a Commission action and not to change or modify the clear meaning of a condition previously adopted by the Commission. The discussion between Mr. Lowenberg and the Commission also clearly indicates that neither the Commission nor Mr. Lowenberg had any inkling that requesting and being, granted a variance would constitute a waiver, much less the waiver now asserted by the Borough. Under the Borough's view of the waiver, Mr. Lowenberg not only lost his nght to continue outdoor storage on former Lot 6, but it required him to waive his outdoor storage rights on the adjoining Lot 7A, that was not even a subject of the variance application! This occurred because the Planning Commission re9uired, as a condition of the grant of the variance, that Lots 6 and 7A be combined into a single lot, thereby extending the so called waiver to the adjoining lot. I cannot believe that the Planning & Zoning Commission would consciously attempt to take the rights of a person in this rather indirect manner without having discussed, or at least pointed out, this consequence. I believe the Planning & Zoning Commission would be more straightforward than that. In any event, it does not appear that either the Commission or the applicant was aware that the outdoor storage rights of the applicant would be affected beyond what was clearly stated in the second condition adopted by the Planning Commission; therefore, no waiver was intended and no waiver occurred. One additional consideration that adds some weight favoring your position is that you reasonably understood that you would only be required to store within the structure what was feasible to store therein, that you could continue your outside storage of crab pots and other gear and equipment that was not feasible to store inside the structure, and in reliance upon this reasonable understanding, you complied with the first requirement of the variance condition and vacated the lot line between Lots 6 and 7A thereby reducing the number of waterfront parcels you owned and, in theory, reducing the total value of these parcels. It would be unfair, if not unconscionable, for the Borough to attempt to deprive you of a right you and the Commission both understood that you had when you replatted the two lots into the new Lot 6A. The Borough Attorney refers to statements made in the variance application as well as statements made by those who supported the variance application as supporting the contention that all outside storage would cease. I believe a fair reading of these statements in light of conditions as they existed on the date of the hearing leads to a different conclusion. First, it should be remembered that the 20 x 40 structure (800 square feet) could not possibly, in the wildest imagination of any sane person, have accommodated all of the crab pots, equipment and other gear that was stored outside either at the time the stnrctute was built or afterwards. Additionally, at the time the application was submitted and al the time comments were submitted and the hearingheld, the building had been completed and gear, equipment and materials that had formery been stored outside had already been moved into the structure; at these relevant times, this structure was full and was accommodating all of the gear and equipment that could feasibly be stored inside the structure. Thus, when the application stated that "inside storage will prevent unsightly outside storage," it was clearly not the intent of the applicant to indicate that any significant additional outside storage could be accommodated within the structure. 'ibis was, after all. an atter-the-fact application and it was clear to everyone how much of the previously existing unsightly outside storage could and would be accommodated inside the structure. On its face, this statement in the application does not 6 " October 12, 1992 Page 7 indication that all outside storage (even if somewhat unsightly) would be accommodated inside. The statements of neighbors, both on the petition and those separately submitted, indicate that they would rather look at the building than outdoor storage. Again, considering iksi the building had already accomn ottatco as much unslgfuy outdoor storage as possible, these should be taken as comments that overall, the site is more attractive with the structure than it was without. The 8-8-85 letter from Richard Powell clearly indicates that it is an improvement not to have to look at the miscellaneous material in the yard. It isthe miscellaneous material that was moved into the shed that Mr. Powell no longer had to look at. Judging from the letterhead on Mr. Powell's correspondence, I presume that he is able to distinguish between crab pots and miscellaneous material and that he did not contemplate that the crab pots were or would be stored inside the structure. Also, the letter from Daniel H. Farrar, DDS, supports the grant of the variance noting that Mr. Lowenberg, in "moving his outside storage into an attractive building has done much to improve the appearance of the area.' Thus, Dr. Farrar recognized that the outside storage that was to move into the building had already been moved Into the building and that this improved the appearance. He appears to have had no objection to the remaining outdoor storage. The 8-14-85 letter from David J. King also indicates that the construction of the accessory building permitted cleaning up "a lot of the commercial fishing gear that was exposed to the cye." Again, this is a comment that clearly indicates that the writer was fully cognizant of not only what went Into the storage structure, but that there was other fishing gear that did not go into the structure. These comments all stem much more consistent with the view of the facts as stated and are certainly consistent with the reality that the 800 square foot structure could not possibly been thought to be able to accommodate all of the outdoor storage. CONCLUSION From the facts and assumptions as set out above, I believe that the Kodiak Island Borough will have a long, steep, uphill battle which they are much more likely to lose than to win if a court were to resolve the question of whether, by the application for and acceptance of the variance in 1985, the owner of the property waived his right to continue all outdoor storage on what is now Lot 6A. If you have any other questions or wish to discuss this matter further with me, please do not hesitate to call. 19406-e8006w4ioa.ss.11b Sincerely, PRESTON THORGRIMSON SHIDLER GATES & ELLIS By: . . • Gerald Lee Sharp 7 MELVXN M. STEPHENS, II A PROFCSsiONAt CORPORATION ATTORN EV AT LAW 104 CENTER AVENUE, SUITE 206 P. 0,130X 1129 KODIAK, ALASKA 90016 TELEPHONE (907) 406-3143 MEMORANDUM TO: Kodiak Island Borough Community Development Department FROM: Melvin M. Stephens, 11 RE: Lot 6A, Block 3, Leite Addition Gear Storage Grandfather Rights My File No. 8529.05 DATE: November 15, 1991 QUESTION PRESENTED You have asked for an opinion as to whether and to what extent Lot 6A, Block 3, Leite Addition ("Lot 6A"), which is zoned R-1 (Single -Family Residential), may be used for the outdoor storage of commercial fishing gear. ANSWER While the question is not without some doubt, in my opinion no part of Lot 6A, Block 3, Leite Addition may be used for the outdoor storage of commercial fishing gear consistent with the Kodiak Island Borough Code. Outdoor storage is not permitted in an R-1 (Single - Family Residential> zoning district. if Assuming for the sake of argument that the owner of this lot may at one time have had certain "grandfather rights" to use the lot for outdoor storage, in my opinion all such rights were waived by the application for a acceptance of a variance in 1985, which variance permitted an addition to an accessory building to remain on the lot. i' See KIBC 17.18.020. Outdoor storage is a permitted use in B (Business) zoning districts (KIBC 17.21.020W) or in I (Industrial) zoning districts (KIBC 17.24.O10U). It is also permitted in RR -1 or RR -2 (Rural Residential) districts if an owner -occupied dwelling is present on the premises (KIBC 17.15.020D and 17.17.020D). Kodiak Island Borough -2- DISCUSSION November 15, 1991 Whether or not grandfather rights may authorize an otherwise illegal use of property within Kodiak Island Borough is an inquiry which must tura on the specific facts associated with a particular case. Furthermore, the owner of the property in question is, more often than not, in a better position to determine those facts than is the staff of the Community Development Department. Therefore, as a general rule, I think it is inappropriate for the Community Development Department to issue or obtain legal opinions on such matters at the request of individual property owners. In the present instance, I have assumed that at some point in the past the owner of Lot 6A may have possessed grandfather rights to use that lot for outdoor storage despite the Zoning Code's prohibition of such a use in an R-1 zoning district. Let me stress that this assumption was made purely for the purpose of the rendering of this opinion, however, and that the three files which I was asked to review t' contain no significant facts which bear on this issue, one way or the other. Chapter 17.36 of the Borough Code contains several provisions permitting the continued existence of nonconforming lots of record, structures, uses of structures, or uses of land under certain specified conditions. Those relating to nonconforming uses of land are found at KIBC 17.36.060. Such provisions are not favored in law and are strictly construed against the continuance of the nonconforming use. ' Indeed KIBC 17.36.020 is specific on this point, stating, in relevant part: Nonconforming uses are declared by this chapter to be noncompatible with permitted uses in the land use district involved. While nonconforming land uses meeting the requirements of Chapter 17.36 are permitted to continue "until they are removed," KIBC 17.36.020 specifically states that "nonconforming uses shall not be enlarged upon, expanded, or extended, nor be used as grounds for adding other structures or uses prohibited elsewhere in the district." Therefore, it is my opinion that such rights may be relatively easily waived. I believe that any grandfather rights which might at one lime have permitted outdoor storage on Lot 6A were waived in the course of the property owner's applying for and accepting a variance from section 17.51.050 of the Borough Code in 1985. The variance in V Case No. 85-042, Case No. 91-041 and Lot 6A, Block 3, Leite Addition. $gg Kelly Supply Company. Inc v. City of Anchorage, 516 P.2d 1206, 1210 (Alaska 1973), (applying "the general policy that nonconforming uses are to be restricted and terminated as quickly as possible"); accord, Stephen and Sons v. Municipality of Anchorage, 685 P.2d 98, n.6 at 102 (Alaska 1984). r .,a Kodiak Island Borough -3- November 15, 1991 question, which is the subject of Case No. 85-042, permitted an addition to an accessory building which exceeded 10% of lot area to remain on the lot. It was granted upon two conditions. The first was that lots 6 and 7A, Block 3, Leite Addition be replatted into one lot (which became Lot 6A). The second condition was that: All outdoor storage that is feasible to move shall be placed inside the accessory building. ., While this second condition did not flatly state that the applicant for the variance was required to give up all grandfather rights to outdoor storage in return for the variance he was requesting, such a conclusion is supported by the findings of fact which were adopted on September 18, 1985. The third out of five findings of fact reads: Granting of the variance will not be detrimental to the public's health, safety and welfare because all outdoor storage must be relocated within the structure, This willeliminate a potential attractive nuisance to children. This finding was presaged by the variance application itself, dated May 28, 1985 in which the applicant, Terry Lowenberg stated that the granting of the variance would not result in material damage or prejudice to other properties in the vicinity because "inside storage will prevent unsightly outside storage." The applicant also presented to the Planning and Zoning Commission a petition supporting the grant of the variance. That petition, which was signed by twenty of the applicant's neighbors offered, as a reason for granting the variance, the statement: "We would rather look at a building verses outdoor storage." Other statements in support of the variance request were to similar effect. s Under the circumstances, then, it is my opinion that any grandfather rights to use Lot 6A for outdoor storage were waived upon the property owner's acceptance of the 1985 variance containing the condition quoted above. " As the 1985 proceedings before the Planning and Zoning Commission make it clear that the accessory building was intended for the storage of fishing gear, I do not think this use of u See minutes of August 21, 1985 Planning and Zoning Regular Meeting, at 3, and the August 23, 1985 letter from Robert H. Pederson, Assistant Planner, Community Development Department, to Terry Lowenberg, the property owner. • E.g., a 8/14/85 letter of Dan Farrar and a 8/8/85 letter of Dick Powell. tY If the condition was unacceptable to him, the applicant could have either appealed the matter to the Borough Assembly or refused to accept the variance. Kodiak Island Borough -4- November 15, 1991 the accessory building may be prohibited. " The lot may not be used for outdoor storage, however. 1' It has been suggested that the storage of commercial fishing gear in an accessory building on a lot zoned R-1 is itself a nonconforming use. A strong argument can be made to the contrary. Paragraph A of K1BC 17.06.080 defines an accessory building as: "A detached building, the use of which is appropriate, subordinate and customarily incidental to that of the main building ...." In my opinion the use of an accessory building to store items owned by or in the possession of an individual living in a residence on the same lot is "appropriate, subordinate and customarily incidental to" the use of that residence regardless of whether the items in question ultimately may be used for commercial, as opposed to purely personal, purposes. Attempting to judge the appropriateness of storage in a accessory building by the ultimate use of the items being stored leads to distinctions which I feel no court would uphold. Such an approach would, for example, permit an accessory building to be used for the storage of a personal automobile but not for a taxi or for a pickup used solely in connection with a commercial business. It would permit such a building to be used to store a skiff used solely for sporting purposes, but it would preclude the storage of that same skiff if used in connection with a commercial fishing operation. In my opinion such distinctions would more likely that not be struck down as in violation of the equal protection clause of the Alaska Constitution if ever challenged in court. To: Jerome Selby From: Melvin M. Stephens, 11 19-23-92 2:49pm p: 1 of 5 MELVIN M. STEPHENS, II Attorney at Law 104 Center Avenue, Suite 206 P.O. Box 1129 KODIAK, ALASKA 99615 Telephone (907)486-3143 FAX COVER PAGE DATE: October 23, 1992 PLEASE DELIVER THE FOLLOWING PAGES TO: NAME: JEROME SELBY C/0: Kodiak Island Borough CITY: Kodiak PHONE: FAX: 486-9374 Remarks: Sue Geveden has asked that I provide her a copy of the accompany letter. PLEASE GIVE ME A CALL AND.. LET ME KNOW: ONE-WAY OR -THE OTHER, WHETHER YOU WANT ME TO GRANT', HER ''REQUEST.' If I do provide her a copy, I would propose to delete from it the last paragraph on page 2, simply be- cause it discusses my view concerning potential litiga- tion. Original to Follow (Y/N)7 y We are transmitting 5 pages (including this cover page). If you do not receive the pages properly, please notify us as soon as possible at (907) 486-3143 and ask for Paula. To: Jerome Selby From: Melvin M. Stephens, II 10-23-92 2:50pm p. 2 of 5 Ms vix M. STE/PEENS, 11 A PROTTOCIONM. CORPORATION ATTORNrY AT LAW 104 CENTER AVENUE. SUITE MOO A D. BOX II00 YODIa ♦L9e► 50818 T11.10110NE (D07) 400-0143 October 23, 1992 Kodiak Island Borough 710 Mill Bay Road Kodiak, Alaska 99615 Attn: Jerome Selby, Mayor Re: Lot 6A, Block 3, Leite Addition Gear Storage Grandfather Rights (Lowenberg) My File No. 8529.05 Dear Jerome: Sue Geveden, who represents C. L. Lowenberg, indicates that she has recently spoken to you concerning her client's dissatisfaction with my November 15, 1991 opinion to the Community Development Department con- cerning the existence or non-existence of gear storage grandfather rights with respect to Lot 6A, Block 3, Leite Addition and that you encouraged her to speak with me about whether I would be willing to withdraw or modify that opinion. She recently did so and passed on to me a contrary opinion which Mr. Lowenberg has obtained from Lee Sharp of the Preston, Thorgrimson firm in Anchorage. For your convenience, copies of Mr. Sharp's opinion dated October 12, 1992, Sue's Letter to me of October 20, 1992, and my original opinion of November 15, 1991 are enclosed. While I am not inclined to modify or withdraw my opinion, I would be glad to clarify it. My conclusion that any grandfather rights for outdoor storage of fishing gear on the property here in question were waived in the course of the property owner's applying for and accepting a variance in 1985 was based solely upon an analysis of the Community Development Department's written records. I did not attempt to investigate or establish facts not reflected by those records. Based upon my review of the documents, it was my opinion that the cessation of all further outdoor storage of fishing gear was a quid pro quo for the property owner's obtaining the variance permitting an addition to an accessory building to remain on the lot. The variance was granted subject to two conditions, the second of which was that: All outdoor storage that is feasible to move shall be placed inside the accessory building. As I pointed out in my original opinion, this language does not flatly state that the applicant for the variance was required to give up all grandfather rights to outdoor storage in return for the variance. Such a conclusion is, however, supported by other parts of the record, including a To: Jerome Selby From: Melvin M. Stephens, 11 10-23-22 2:51pm p. 3 of 5 Jerome Selby -2- October 22, 1992 finding of fact explicitly stating that "all outdoor storage must be relo- cated within the structure" and statements made on the variance applica- tion and in a supporting petition which was apparently presented to the Planning & Zoning Commission by the applicant himself. I do not suggest that the issue is free from doubt. What we are dealing with here is the question of what was meant by the second condition attached to the variance. I feel the Planning & Zoning Commission had the authority to condition the granting of the variance upon the property owner's agreement to stop all further outdoor storage on the lot. Whether the second condition quoted above actually reflects such an intent is a matter upon which reasonable persons could disagree. If the Planning & Zoning Commission or the Borough's zoning enforcement officials choose to interpret that condition as not having required the cessation of all outdoor storage of fishing gear, I will most certainly take no offense. The condition itself uses the word "feasible," thus implying that it does not prohibit all further outdoor storage on the lot. The statements made on the variance application ("inside storage will prevent unsightly outside storage") and on the supporting petition presented by the variance applicant ("we would rather look at a building versus outdoor storage"), are susceptible of differing interpretations and. in and of themselves, might not have led me to conclude that the Planning & Zoning Commission meant to bar all further outdoor storage when it attached the second condition to the variance. The finding of fact quoted above is, however, explicit. Given the fact that the applicant accepted the variance without objecting to the finding that it was to result in all outdoor storage being relocated within the structure, I think the records which I reviewed sup- port the conclusion that the second condition attached to the variance was meant to require a waiver of any rights the applicant otherwise might have had to the continued outdoor storage of fishing equipment on the property. Once again, I stress this conclusion is not unassailable. Mr. Sharp, in particular, supports his argument to the contrary with a host of facts concerning the exact nature and extent of the outdoor storage which existed prior to the variance application and suggests that, at the hearing on the variance,"it was specifically discussed and understood by all that crab pots would not be stored in the new structure and that crab pots would continue to be stored outside." None of these facts are reflected in the record which I reviewed. If one takes them as a given and assumes that there are no contrary facts or circumstances which should be considered, then I think the balance tips in favor or Mr. Lowenberg's interpretation of the second condition to the variance, Let me point out, however, that this approach requires that one simply disregard entirely the explicit language of the third finding of fact which the Planning & Zoning Commission adopted. Mr. Sharp concludes his opinion of October 12, 1992 with the prediction that the Borough "will have a long, steep, uphill battle which they are (sic) much more likely to lose than to win if a court were to resolve the question of whether, by the application for and acceptance of the variance in 1985, the owner of the property waived his right to continue all outdoor storage To: Jerome Selby Jerome Selby From: Melvin M. Stephens, II 10-23-92 2:52pm p. 4 of 5 -3- October 22, 1992 on what is now Lot 6A." While that conclusion is based upon Mr. Sharp's assumption with the additional facts set forth in his opinion letter can, in fact, be established, and while it strikes me as somewhat overly confident, let me stress that I am not suggesting that the Borough engage in such litigation. Indeed, I think it should avoid it if at all possible. It is my understanding, however, that the question which is being raised by Mr. Lowenberg does not arise because of any threatened enforce- ment action on the part of the Borough. Indeed, I am told that the outdoor storage of crab pots, skiffs and other fishing gear upon Lot 6A has contin- ued unabated since the variance was granted in 1985, that none of the neighbors have complained, and that the Borough has neither taken nor threatened any enforcement action with respect to the outdoor storage. The problem we are facing. then, arises not because the Borough has taken action to terminate the outdoor storage on Lot 6A, but solely because the property owner is seeking what amounts to a written guarantee that it will never take such action in the Future. If the Planning & Zoning Commission feels it appropriate to address these concerns, then it may wish to review for itself the files associated with the granting of the variance in 1985 as well as the conflicting opinions of myself, 14s. Geveden and Mr. Sharp, and issue to the present property owner a more or less formal written clarification of its interpretation of the second condition attached to the variance which was issued in 1985. I have no personal objection to such an approach and I do not suggest that the Planning & Zoning Commission should consider itself "bound" by my opinion of November 15, 1991. If the Commission chooses to take this approach, however, let me once again recommend that it view this matter as a rare exception to a general policy of not getting into the business of issuing formal opinions as to the existence or nonexistence of grandfather rights concerning nonconforming uses of property within the Borough. A property owner who claims to have such rights is free to advise a prospective purchaser of his position and of the facts concerning the Borough's Lack of enforcement action concern- ing the nonconforming use in question. In the absence of any complaints from neighboring property owners or threatened enforcement action con- cerning the nonconforming use, however, providing the property owner with an "advisory" opinion concerning the Borough's view of the existence and scope of his grandfather rights involves taking an initial step onto what may prove to be a very slippery slope. If the opinion favors the property owner's view of his grandfather rights, he will undoubtedly take the posi- tion that he is entitled to rely upon it and that any further consideration of the issue is foreclosed. On the other hand, if the property owner is disappointed with the opinion, he may well feel compelled to pursue the To: Jerome Selby Jerome Selby From: Melvin M. Stephens, II 10-23-9Z 2:54pm p. 5 of 5 -4- October 22, 1992 matter. In most situations, then, I think it is inappropriate for the Bor- ough to issue or obtain legal opinions on such matters. Sincerely, MMS: p jd Enclosures Selby.023 Melvin M. Stephens, II 7'Th C.L. and Nancy Lowenberg Arctic Sun Fisheries P.O. Box 767 Kodiak, AK 99615 Kodiak Island Borough 710 MILL BAY ROAD KODIAK, ALASKA 99615-6340 PHONE (907) 486-5736 November 20, 1991 Re: Status of nonconforming use of land or land and structures in combination for commercial fishing gear storage on Lot 6A, Block 3, Leite Addition. Dear Mr. and Mrs. Lowenberg: This letter is in response to your request for information concerning the above referenced property. Staff obtained a legal opinion from local attorney Mel Stephens to address some of the earlier procedural actions of the Planning and Zoning Commission which bear on the lot. A' copy of the memorandum is enclosed for your review. A copy of this opinion will be placed in the appropriate property files for future reference. If you have any questions regarding this memorandum please feel free to contact me at 486-5736, ext. 255. Sincerely, Zee— uane Dvorak, Associate Planner Community Development Department cc: Jerome Selby, KIB Mayor Sharlene Sullivan, Associated Island Brokers Planning and Zoning Commission MELVIN M. STEPHENS, II A PROFESSIONAL CORPORATION ATTORNEY AT LAW 104 CENTER AVENUE, SUITE 206 P. O. BOX 1129 KODIAK, ALASKA 00615 TELEPHONE (907) 486-3143 MEMORANDUM TO: Kodiak Island Borough Community Development Department FROM: Melvin M. Stephens, II Lot 6A, Block 3, Leite Addition Gear Storage Grandfather Rights My File No. 8529.05 DATE: November 15, 1991 QUESTION PRESENTED You have asked for an opinion as to whether and to what extent Lot 6A, Block 3, Leite Addition ("Lot 6A"), which is zoned R-1 (Single -Family Residential), may be used for the outdoor storage of commercial fishing gear. ANSWER While the question is not without some doubt, in my opinion no part of Lot 6A, Block 3, Leite Addition may be used for the outdoor storage of commercial fishing gear consistent with the Kodiak Island Borough Code. Outdoor storage is not permitted in an R-1 (Single - Family Residential) zoning district. it Assuming for the sake of argument that the owner of this lot may at one time have had certain "grandfather rights" to use the lot for outdoor storage, in my opinion all such rights were waived by the application for a acceptance of a variance in 1985, which variance permitted an addition to an accessory building to remain on the lot. See KIBC 17.18.020. Outdoor storage is a permitted use in B (Business) zoning districts (KIBC 17.21.020W) or in I (Industrial) zoning districts (KIBC 17.24.O10U). It is also permitted in RR -1 or RR -2 (Rural Residential) districts if an owner -occupied on the premises (IUBC 17.15.020D and 17.17.020D). 0 W E NOV 1 819 COMMUNITY DEVELD DEPARTMENT Kodiak Island Borough -2- November 15, 1991 DISCUSSION Whether or not grandfather rights may authorize an otherwise illegal use of property within Kodiak Island Borough is an inquiry which must turn on the specific facts associated with a particular case. Furthermore, the owner of the property in question is, more often than not, in a better position to determine those facts than is the staff of the Community Development Department. Therefore, as a general rule, I think it is inappropriate for the Community Development Department to issue or obtain legal opinions on such matters at the request of individual property owners. In the present instanced I have assumed that at some point in the past the owner of Lot 6A may have possessed grandfather rights to use that lot for outdoor storage despite the Zoning Code's prohibition of such a use in an R-1 zoning district. Let me stress that this assumption was made purely for the purpose of the rendering of this opinion, however, and that the three files which I was asked to review _v contain no significant facts which bear on this issue, one way or the other. Chapter 17.36 of the Borough Code contains several provisions permitting the continued existence of nonconforming Lots of record, structures, uses of structures, or uses of land under certain specified conditions. Those relating to nonconforming uses of land are found at KIBC 17.36.060. Such provisions are not favored in law and are strictly construed against the continuance of the nonconforming use. '-' Indeed KIBC 17.36.020 is specific on this point, stating, in relevant part: Nonconforming uses are declared by this chapter to be noncompatible with permitted uses in the land use district involved. While nonconforming land uses meeting the requirements of Chapter 17.36 are permitted to continue "until they are removed," KIBC 17.36.020 specifically states that "nonconforming uses shall not be enlarged upon, expanded, or extended, nor be used as grounds for adding other structures or uses prohibited elsewhere in the district." Therefore, it is my opinion that such rights may be relatively easily waived. I believe that any grandfather rights which might at one time have permitted outdoor storage on Lot 6A were waived in the course of the property owner's applying for and accepting a variance from section 17.51.050 of the Borough Code in 1985. The variance in _v Case No. 85-042, Case No. 91-041 and Lot 6A, Block 3, Leite Addition. 2' See Kelly Supply Company. Inc v. City of Anchorage, 516 P.2d 1206, 1210 (Alaska 1973), (applying "the general policy that nonconforming uses are to be restricted and terminated as quickly as possible"); accord, Stenhen and Sons v. Municipality of Anchorage, 685 P.2d 98, n.6 at 102 (Alaska 1984). Kodiak Island Borough -3- November 15, 1991 question, which is the subject of Case No. 85-042, permitted an addition to an accessory building which exceeded 10% of lot area to remain on the lot. It was granted upon two conditions. The first was that lots 6 and 7A, Block 3, Leite Addition be replatted into one lot (which became Lot 6A). The second condition was that: All outdoor storage that is feasible to move shall be placed inside the accessory building. " While this second condition did not flatly state that the applicant for the variance was required to give up all grandfather rights to outdoor storage in return for the variance he was requesting, such a conclusion is supported by the findings of fact which were adopted on September 18, 1985. The third out of five findings of fact reads: Granting of the variance will not be detrimental to the public's health, safety and welfare because all outdoor storage must be relocated within the structure. This will eliminate a potential attractive nuisance to children. This finding was presaged by the variance application itself, dated May 28, 1985 in which the applicant, Terry Lowenberg stated that the granting of the variance would not result in material damage or prejudice to other properties in the vicinity because "inside storage will prevent unsightly outside storage." The applicant also presented to the Planning and Zoning Commission a petition supporting the grant of the variance. That petition, which was signed by twenty of the applicant's neighbors offered, as a reason for granting the variance, the statement: "We would rather look at a building verses outdoor storage." Other statements in support of the variance request were to similar effect. ' Under the circumstances, then, it is my opinion that any grandfather rights to use Lot 6A for outdoor storage were waived upon the property owner's acceptance of the 1985 variance containing the condition quoted above. s' As the 1985 proceedings before the Planning and Zoning Commission make it clear that the accessory building was intended for the storage of fishing gear, I do not think this use of " See minutes of August 21, 1985 Planning and Zoning Regular Meeting, at 3, and the August 23, 1985 letter from Robert H. Pederson, Assistant Planner, Community Development Department, to Terry Lowenberg, the property owner. 2 E.g., a 8/14/85 letter of Dan Farrar and a 8/8/85 letter of Dick Powell. ' If the condition was unacceptable to him, the applicant could have either appealed the matter to the Borough Assembly or refused to accept the variance. Kodiak Island Borough -4- November 15, 1991 the accessory building may be prohibited. '' The lot may not be used for outdoor storage, however. 2' It has been suggested that the storage of commercial fishing gear in an accessory building on a lot zoned R-1 is itself a nonconforming use. A strong argument can be made to the contrary. Paragraph A of KIBC 17.06.080 defines an accessory building as: "A detached building, the use of which is appropriate, subordinate and customarily incidental to that of the main building ...." In my opinion the use of an accessory building to store items owned by or in the possession of an individual living in a residence on the same lot is "appropriate, subordinate and customarily incidental to" the use of that residence regardless of whether the items in question ultimately may be used for commercial, as opposed to purely personal, purposes. Attempting to judge the appropriateness of storage in a accessory building by the ultimate use of the items being stored leads to distinctions which I feel no court would uphold. Such an approach would, for example, permit an accessory building to be used for the storage of a personal automobile but not for a taxi or for a pickup used solely in connection with a commercial business. It would permit such a building to be used to store a skiff used solely for sporting purposes, but it would preclude the storage of that same skiff if used in connection with a commercial fishing operation. In my opinion such distinctions would more likely that not be struck down as in violation of the equal protection clause of the Alaska Constitution if ever challenged in court. AUTHORIZATION TO REQUEST LEGAL OPINION TO: Mel Stephens Attorney at Law DATE: November 6, 1991 ACCOUNT: 100-115-431-120 PROPERTY DESCRIPTION Lot 6A, Block 3, Leite Addition SUBJECT OF REQUEST Establishing the extent of existing grandfathered (non -conforming) land use rights on Lot 6A, Block 3, Leite Addition, to place commercial fishing gear on a residential lot in the R -1 --Single Family Residential Zoning District. REASON FOR REQUEST Property owner asserts unrestricted right to use accessory building and available lot area for placement and storage of commercial fishing gear. The only documented right to use accessory building for commercial fishing gear storage is a condition of approval for a variance permitting a 20' X 40' addition to an existing 40' X 40' accessory building to encroach into a setback. No previous right to store gear in the accessory building is documented in department files. Staff has acknowledged the condition of approval established by the Commission, even though the authority of this action is not without question. Staff is willing to accept the condition of approval, due to the passage of time and incompleteness of the record surrounding this particular aspect of the decision. Staff believes that some corresponding restriction upon the right to use the available lot area for placement and storage of commercial fishing gear is implicit in this view of the circumstances relating to this lot. Staff requests assistance to make a discrete determination of the extent of remaining rights to place fishing gear on this residential lot as requested by the property owner. Property owner is currently offering the property for sale and would like to document the extent of remaining grandfather rights prior to sale. REQUESTED BY: REVIEWED BY: c:ziat Linda L. Frame , Director Jero M. Selby, Boro Community Development Dept. AUTHORIZED BY: Purchasing Agent cc: Two (2) signed copies of the form to the Community Development Department Regulatory Branch Compliance Section D-850353 Mr. Terry- Lowenberg.- Box 647 Newport, Oregon 97365 Dear Mr. Lowenberg:' . DEPARTMENT OF THE ARMY US. ARMY ENGINEER DISTRICT, ALASKA P.O. BOX 898 ANCHORAGE, ALASKA 99506-0898 FEB 6 1991 CERTIFIED tofcfI 4/,1 3, O'le_4f? RECEIVE® FEB 2 5 1991 COMMUNITY DEVELOPMENT DEPT This is in regard to our letter dated July 2, 1990, in which we informed you that the fill material --placed into approximately -5500 square feet' of Potato Patch Lake_within section 33,=T.-27 S.,-R.--20-W.-,-Seward Meridian, on Kodiak Island was unauthorized and in violation of Section 301 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899. In response to information furnished by the City of Kodiak, resource agencies, and our own evaluation, we have determined that Section 10 of the Rivers and Harbors Act of 1899 is not applicable to work performed in Potato Patch Lake. However, as stated in our July 2, 1990, letter, the Corps of Engineers has jurisdiction over Potato Patch Lake pursuant to Section 404 of the Clean Water Act. As a result of our investigation, and resource agency input, we have determined that the fill material placed for the construction of your project is authorized under a Department of the Army (DA) Nationwide Permit (NWP) 26 (33 CFR 330.5(a)(26)), which authorizes discharges of dredged or fill material into less than one acre of non -tidal rivers, streams, and their lakes and impoundments, including adjacent wetlands, that are located above the headwaters (the point on a nontidal stream above which the average annual flow is less than 5 cubic feet per second). Since the total area of wetlands to be impacted by this fill is less than one acre, we have determined that your proposed project may be conducted under the authority of the above NWP provided it conforms to the list of conditions and management practices enclosed. Enclosure 1 is a list of the conditions and management practicesrequired for NWPs. Enclosure 2 is a list of regional conditions for various NWPs in Alaska. Please note that Regional Condition "H" applies to the above referenced NWP. -2 - Please note NWP special condition number 6. To properly maintain the above fill and to prevent erosion into Potato Patch Lake you are required to stabilize the slopes of the fill material. This shall be accomplished by seeding the slopes with an equal mixture of (10 pounds of each) Arctared Red Fescue, White Dutch Clover, and Annual Ryegrass. The seeding should be accomplished by May 1, 1991. Please contact this office upon completion of the above seeding work. For informational purposes, copies of this correspondence are being furnished to the agencies on the enclosed list. Please refer to file number D-850353 should you have any further questions concerning the above. Questions should be directed to Mr. Brad Platt of my staff at -telephone -(907) 753-2712, toll free in Alaska at (800) 478-2712 or our FAX number (907) 753-5567, or at the letterhead address, ATTN: CENPA-CO-R-C. Sincerely, Jeffrey K. Towner Chief, Compliance Section Copies Furnished: Mr. Dan Robison, Jr. Alaska Operations Office Environmental Protection Agency 222 West Seventh Avenue, No. 19 Anchorage, Alaska 99513-7588 Ms. Patti Bielawski Office of Management and Budget Division of Governmental Coordination 3601 C Street, Suite 370 Anchorage, Alaska 99503-5309 Ronald J. Morris, Western Alaska Ecological Supervisor National Marine Fisheries Service 222 West Seventh Avenue, No. 43 Anchorage, Alaska 99513 David McGillivary, Field Supervisor U.S. Fish and Wildlife Service Ecological Service Anchorage 605 West 4th Avenue, Room 62 Anchorage, Alaska 99501 Lance Trasky, Regional Supervisor Habitat Division, Region II Alaska Department of Fish and Game 333 Raspberry Road Anchorage, Alaska 99518-1599 Bill Lamoreaux, Southcentral Regional Supervisor Alaska Department of Environmental Conservation 3601 C Street, Suite 1350 Anchorage, Alaska 99503 Ms. Veronica Gilbert Alaska Department of Natural Resources Division of Land and Water Management Southcentral Regional Office Post Office Box 107005 Anchorage, Alaska 99510-7005 Dr. Steven T. Zimmerman, Chief Protected Resources Management Division National Marine Fisheries Service Post Office Box 2-1668 Juneau, Alaska 99802-1668 City of Kodiak Post Office Box 1397 Kodiak, Alaska 99615 /Kodiak Island Borough 710 Mill Bay Road Kodiak, Alaska 99615-6340 Regulatory Brandi Compliance Section V-850353 Mr. Terry Lowenberg Box 767 Kodiak, Alaska 99615 Dear Mr. Lowenberg: DEPARTMENT OF THE ARMY U.S. ARMY ENGINEER DISTRICT, ALASKA P.O. BOX 898 ANCHORAGE, ALASKA 995860898 CERTIFIED 0 2 JUL 1990 I am writing you regarding an inspection of your property on April 24, 1990, by members of my Compliance Section staff. During the inspection, it was observed that you had placed gravel fill material into approximately 5,500 square feet of Potato Patch Lake located within section 33, T. 27 S., R. 20 W., Seward Meridian,'on Kodiak Island, Alaska. The Department of the Army (DA) exerts regulatory jurisdiction over navigable waters of the United States pursuant to Section 10 of the Rivers and Harbors Act of 1899. This law requires that any individual or entity that proposes to do work in or affecting "navigable waters of the United States," must obtain a DA permit prior to the oamnencement of work. The placement of fill into Potato Patdi Lake, a tidally influenced navigable water, required DA authorization under Section 10. The DA also exerts regulatory jurisdiction over Section 404 of the Clean Water Act. This law requires that a DA permit be obtained prior to discharging dredged and/or fill material into waters of the United States, including wetlands. The fill placed into Potato Pat& Lake also required DA authorization under Section 404. We are currently conducting an investigation of the above described work to determine the appropriate course of action necessary to resolve this violation. TO insure that all pertinent information is available for our evaluation, you are invited to provide any information that you feel Should be considered. At a minimum, you are requested to provide the following information: a. When was the described unauthorized work done? b. Who was the party responsible for the discharge of dredged and/or fill material at the site? 31 A -2- c. What are your future plans, if any, for additional work at the site? This information should te received by this office within 15 days of the date of this letter. We will withhold action on this matter until that time to afford you the opportunity to provide the above requested information. Until such time as this matter is resolved, you are to place no additional dredged and/or fill material in navigable waters and/or waters of the U.S. We are furnishing copies of this letter to the agencies on the enclosed list in order to solicit their views regarding resolution of the violation. Please refer to file number V-850353 should you have any further questions concerning the above. Questions should te directed to Mr. Brad Platt of my Compliance Section at telephone (9071 753-2712, toll free in Alaska at (800) 478-2712 or our FAX number (907) 753-5567, or at the letterhead address, ATTN; CENPA-CO-R-C. Sincerely, Mt -da Jeffrey K. Towner Chief, Compliance Section Enclosures Mr. Dan Robison, Jr. Alaska Operations Office Environmental Protection Agency 222 West 7th Avenue, No. 19 Andiorage, Alaska 99513-7588 Patty Bielawski Project Review Coordinator Office of Management and Budget Division of Governmental Ordination 3601 C Street, Suite 370 Andiorage, Alaska 99503-5309 Ronald J. Morris, Western Alaska Ecological Supervisor National Marine Fisheries Service Federal Building, U.S. Court House 222 West 7th Avenue, No. 43 Andiorage, Alaska 99513-7577 Mr. Dave MaGillivary Field Supervisor U.S. Fish and Wildlife Service Ecological Service AndZorage 605 West 4th Avenue, Rocco G-62 Andiorage, Alaska 99501-2231 Lance Trasky, Regional Supervisor Habitat Division, Region II Alaska Department of Fish and Game 333 Raspberry Road Andiorage, Alaska 99518-1599 Bill Lamoreaux, Southcentral Regional Supervisor Alaska Department of Environmental Conservation 3601 C Street, Suite 1334 Andiorage, Alaska 99503 Ms. Veronica Gilbert Alaska Department of Natural Resources Division of Land and Water Management Southcentral Regional Office Post Office Box 107005 Andiorage, Alaska 99510-7005 Paula Easley, Director Municipality of Andiorage Department of Economic Development and Planning Post Office Box 196650 Andiorage, Alaska 99519-6650 Kodiak Island Borough 710 Mill Bay Road Kodiak, Alaska 99615-6340 White copy: Fite Yellow copy: Building Permit Pink copy: Applicant ZONING COMPLIANCE PERMIT 1. PROPERTY OWNER/APPLICANT Iak Island Borough F"' L ..:munity Development Department 710 Mill Bay Road, Room 204 Kodiak, Alaska 99615 (907)486-5736 Ext. 255 Zoning Compliance #: t^ 17 — 0 0 Name: � Y Nr - Address: 7 2. LEGAL. DESCRIPTION OF PROPERTY Telephone: )1 2(60 Street Address: ( 1 e9 /"l 1 5 5 i d--- 134 I Minimum lot width: / V 0 " Average lot depth: 04 3 ' Average lot width: Lot de th to width ratio: Lot, block, subdivision: 6 Af (3 ( /C 3 L__p_fq-..o Survey, other (e.g. township/range): / Tax code#: A I ,00e) 300(>r 0 Rear: Alit- -Sides: 4) .- 3. DESCRIPTION OF EXISTING PROPERTY Zoning: l2 1 Square footage of lot: 1 134 I Minimum lot width: / V 0 " Average lot depth: 04 3 ' Average lot width: Lot de th to width ratio: Use and size of existing buildings on the lot: 5j f i, % 16 p -C.0 A( Conditions attached to Consistency approval to mitigate conflicts noted above: A. per„ 4. DESCRIPTION OF PROPOSED ACTION (attach site plan) 1 pi/ 5. ZONING REQUIREMENTS FOR NEW CONSTRUCTION Type of structure(s): car eD— ( . - Proposed action consistent with Borough Coastal Management Program No - vJ S/tea+ Conditions attached to Consistency approval to mitigate conflicts noted above: A. per„ Minimum Setbacks—Front: /t% 4— Rear: Alit- -Sides: 4) .- Additional Setbacks: x ,4. Maximum projection(s) into required yards: Ai r Maximum building height: Cj r j 5f Nr S- � Maximum lot coverage: i( r �v cd' Number and size of parking spaces required: c Off-street loading requirement: /f fj"Y1-t, Plat related requirement(s): 1 kl C ,. Other (e.g. zero lot line): 6. CONSISTENCY WITH COASTAL MANAGEMENT PROGRAM Applicable policies: aej_._2_A__e jt....t_rj j_.....L.tR __tit Proposed action consistent with Borough Coastal Management Program No Proposed action conflicts with policies (note policy and describe conflict): /U�...i-- Conditions attached to Consistency approval to mitigate conflicts noted above: A. per„ 7. APPLICANT CERTIFICATION I hearby certify that I will comply with all provisions of the Kodiak Island Borough Code and that I have the authority to certify this as owner, or representative_f the owner, of the property(s) involved. Signed 1 Title O tnit-t.a Date 8. SUPPORT DOCUMENTS ATTACHED Site Plan: Other: 9. BOROUGH STAFF APPROVAL Staff Approval: Signed Title O Date c6 Building permit #: i G9 c0_6(A- le_ 3 / _ 3",11 vi)o-4Lc'--�(0- 1q / ( -7 1 3 dM Lss) v Let - 1 . - W v� -n -.- '7�-"'_ /'fir/ �". ��' 1:/ 3 Ai rSsio - To (.U- Ow ill- e --0-ca.1/41 Dalt:: '6,17 '7( ce.ane.- 4 it:st 7 While Youif ere Out M of Phone AREA CODE NU EXTENSION TELEPHONED PLEASE CALL WAS IN TO SEE YOU WILL CALL AGAIN WANTS TO SEE YOU URGENT RETURNED YOUR CALL Message 1 el" 47(440966726 /964441-16 /lidge- 4/147St..- Nen/ ggra-71471 440(2- -a pi &-%f 'TWO 7)1-7 S v- („qco el sFeg Opercitor CHALLENGER® 01761 White copy: File Yellow copy: Building Permit Pink copy: Applicant ZONING COMPLIANCE PERMIT 1. PROPERTY OWNER/APPLICANT K4( s Island Borough Community Development Department 710 Mill Bay Road, Room 204 Kodiak, Alaska 99615 (907)486-5736 Ext. 255 Zoning Compliance #: Name: `TCEVLY z'OG -) E 24, Address: e2)( -7 (p-7 Telephone: 2. LEGAL DESCRIPTION OF PROPERTY Street Address: / 1(9.3 /Vi/c.55q».J /90 Minimum lot width: Average lot depth: Average lot width: Lot, block, subdivision: 6.0-r 6, QL. t L..612t,.. Use and size of existing buildings on the lot: 67 ..4 ,4'- _J -Ti) Survey, other (e.g. township/range): Maximum building height: ' j ' //2 C J Maximum lot coverage: ;Ai/4 Number and size of parking spaces required: Tax code #: X. / 9. O ° 3 noGo Off-street loading requirement: Plat related requirement(s): ! ".. 3. DESCRIPTION OF EXISTING PROPERTY Zoning: fe--/ Square footage of lot: t t Minimum lot width: Average lot depth: Average lot width: Minimum Setbacks—Front: /\jA Lot deptth�too width ratio: Use and size of existing buildings on the lot: 67 ..4 ,4'- f e -e -a --c 1 j , Proposed action conflicts with policies (note policy and describe conflict): Maximum building height: ' j ' //2 C J Maximum lot coverage: ;Ai/4 4. DESCRIPTION OF PROPOSED ACTION (attach site plan) 041 ciziej0 2-r or l0/J 0/3 Of G1-66 (a) 4.,a s22& - ,air EA-JA,/,4 5. ZONING REQUIREMENTS FOR NEW CONSTRUCTION Type of structure(s):,f;'r' t t --- Minimum Setbacks—Front: /\jA 1 Rear: c-5 Sides: 51 Additional Setbacks: N'% Maximum projection(s) into required yards: fjA Proposed action conflicts with policies (note policy and describe conflict): Maximum building height: ' j ' //2 C J Maximum lot coverage: ;Ai/4 Number and size of parking spaces required: Conditions attached to Consistency approval to mitigate conflicts noted above: Off-street loading requirement: Plat related requirement(s): ! ".. Other (e.g. zero lot line): 6. CONSISTENCY WITH COASTAL MANAGEMENT PROGRAM Applicable policies: `' .ar t J7 f7jA-(_ f e()(.//l4, t t --- Proposed action consistent with Borough Coastal Management Program — Yes No Proposed action conflicts with policies (note policy and describe conflict): Conditions attached to Consistency approval to mitigate conflicts noted above: 7. APPLICANT CERTIFICATION I hearby certify that I will comply with all provisions of the Kodiak Island Borough Code and that I have the authority to certify this as owner, or representJIve a owner, of the property(s) Involved: 8. SUPPORT DOCUMENTS ATTACHED Site Plan: Other: 9. BOROUGH STAFF PROVA Staff Approval: Building permit #: DIVISION BUILDING DEPARTMENT — CITY / BOROUGH OF KODIAK APPLICATION FOR BUILDING PERMIT AND CERTIFICATE Applicant to fill in between heavy lines. OF OCCUPANCY BUILDING ADDRESS LOCALITY NEAREST CROSS 6 NAME 0 /1) ALAS k.4 ST. CLASS OF WORK NEW ALTERATION DEMOLISH REPAIR ADDITION • MOVE MAIL ADDRESS CITY NAME TEL. NO. U W W ADDRESS Z = l7 CITY USE OF BUILDING SIZE OF BUILDING HEIGHT NO. OF ROOMS NO. OF FLOORS NO. OF BUILDINGS NO. OF BUILDINGS NOW ON LOT; NO. OF FAMILIES SIZE OF LOT USE OF BLDG. NOW ON LOT SPECIFICATIONS BUILDING PERMIT NO. VALUATION S BUILDING FOUNDATION DATE ISSUED BLDG. FEE PLAN CHK. FEE TOTAL PLUMBING ROUGH ELECTRIC ROUGH FRAME SEPTIC TANK FINISH PLASTER SEWER STATE LICENSE NO. FOUNDATION • NAME MATERIAL EXTERIOR, PIERS FLUES FINAL GAS WIDTH OF TOP DESCRIPTION ADDRESS WI DTH OF BOTTOM CITY DEPTH IN GROUND R.W. PLATE (SILL) STATE LICENSE NO. SUB LOT NO. BLK. SIZE SPA., SPAN GIRDERS JOIST lst. FL. JOIST 2nd. FL. JOIST CEILING EXTERIOR STUDS DO NOT WRITE BELOW THIS LINE Sype of Construction I, 11, 111, IN/, V, VI 2. Occupancy Group A, B, E, H, I, M, R Div. 1, 2, 3, 4 3. Fire Zone 1 2 3 4 INTERIOR STUDS ROOF RAFTERS BEARING WALLS COVERING EXTERIOR WALLS ROOF INTERIOR WALLS REROOFING FLUES Fi REPLACE FL. FURNACE KITCHEN WATER HEATER GAS OIL FURNACE I hereby acknowledge that I have read this application and state that the above is correct and agree to comply with all City Ordinances and State Laws regulating building construction. Applicant FINISH FIXTURES MOTORS FINAL 3N11 Al2i3dO2:1d PLOT PLAN SETBACK 3N11 Al2i3dOad STREET PLANNING & ZONING INFO. ZONING DISTRICT TYPE OF OCCUPANCY NUMBER OF STORIES TOTAL HT. AREA OF LOT FRONT YARD SETBACK FROM PROP. LINE SIDE YARD SETBACK FROM PROP LINE REAR YARD Approved: CHIEF BUILDING OFFICAL Approved: ZONING ADMINISTRATOR By: By• BUILDING DEPARTMENT — CITY / BOROUGH OF KODIAK Applicant to fill in between heavy lines. CLASS OF WORK BUILDING ADDRI SS LOCALITY NEW DEMOLISH ALTERATION REPAIR ADDIT ION MOVE W Z 0 DESCRIPTION NAME ADDRESS CITY STATE LICENSE NO. NAME ADDRESS CITY STATE LICENSE NO. SUBDIVISION LOT NO. BLK. DO NOT WRITE BELOW THIS LINE 1. Type of Construction I, 11, III, IV, V, VI USE OF BUILDING SIZE OF BUILDING HEIGHT NO. OF ROOMS NO. OF FLOORS NO. OF BUILDINGS NO. OF BUILDINGS NOW ON LOT NO. OF FAMILIES SIZE OF LOT USE OF BLDG. NOW ON LOT SPECIFICATIONS FOUNDATION MATERIAL EXTERIOR. PIERS APPLICATION FOR BUILDING PERMIT AND CERTIFICATE OF OCCUPANCY BUILDING PERMIT NO. VALUATION BUILDING DATE ISSUED BLDG. FEE PLAN CHK. FEE TOTAL PLUMBING WIDTH OF TOP WIDTH OF BOTTOM DEPTH IN GROUND R.W. PLATE (SILL) SIZE SPA., SPAN GIRDERS JOIST Ist. FL JOIST 2nd. FL JOIST CEILING EXTERIOR STUDS INTERIOR STUDS ROOF RAFTERS 2. Occupancy Group A, B, C, D, E, F, G, H, I, J Div. 1, 2, 3, 4, 3. Fire Zone 1 2 3 4 BEARING WALLS COVERING EXTERIOR WALLS ROOF INTERIOR WALLS REROOFING FLUES FIREPLACE FL. FURNACE KITCHEN WATER HEATER FURNACE GAS OIL I hereby acknowledge that I have read this application and state that the above is correct and agree to comply with all City Ordinances and State Laws regulating building construction. Applicant OUNDATION FRAME PLASTER FLUES I NAL ROUGH SEPTIC TANK SEWER GAS FINISH ELECTRIC ROUGH FINISH FIXTURES MOTORS FINAL 3N11 Ai I3dO21d PLOT PLAN A SETBACK 3N11 Al213dO8d STREET PLANNING & ZONING INFO. ZONING DISTRICT TYPE OF OCCUPANCY NUMBER OF STORIES TOTAL HT. AREA OF LOT FRONT YARD SETBACK FROM PROP. LINE SIDE YARD SETBACK FROM PROP. LINE REAR YARD Approved: CHIEF BUILDING OFFICAL Approved: ZONING ADMINISTRATOR By: By. BUILDING DEPARTMENT— CITY / BOROUGH OF KODIAK APPLICATION FOR BUILDING PERMIT AND CERTIFICATE Applicant to fill in between heavy lines. OF OCCUPANCY BUILDING ADDRESS CLASS OF WORK NEW DEMOLISH LOCALITY ALTERATION REPAIR NEAREST CROSS ST. ADDITION MOVE BUILDING PERMIT NO. DATE ISSUED USE OF BUILDING Z 0 NAME SIZE OF BUILDING HEIGHT MAIL ADDRESS NO. OF ROOMS NO, OF FLOORS CITY TEL. NO. NO. OF BUILDINGS VALUATION BLDG. FEEL PLAN CHK. FEE TOTAL NAME NO. OF BUILDINGS NOW ON LOT BUILDING PLUMBING ELECTRIC NO. OF FAMILIES FOUNDATION ROUGH ROUGH ADDRESS SIZE OF LOT CITY USE OF BLDG. NOW ON LOT FRAME PLASTER SEPTIC TANK FINISH SEWER FIXTURES SPECIFICATIONS FLUES GAS MOTORS STATE LICENSE NO. FOUNDATION FINAL FINISH FINAL CONTRACTOR NAME MATERIAL EXTERIOR, PIERS WIDTH OF TOP ADDRESS WI DTH OF BOTTOM CITY DEPTH IN GROUND R.W. PLATE (SILL) STATE LICENSE NO. 51ZE SPA. SPAN SUBDIVISION GIRDERS JOIST 1st. FL. JOIST 2nd, FL. LOT NO. BLK. JOIST CEILING EXTERIOR STUDS DO NOT WRITE BELOW THIS LINE 1. Type of Construction I, II, III, IV, V, VI 2. Occupancy Group A, B, C, D, E, F, G, H, I, J Div. 1, 2, 3, 4, 3. Fire Zone 1 2 3 4 INTERIOR STUDS ROOF RAFTERS BEARING WALLS COVERING EXTERIOR WALLS ROOF INTERIOR WALLS REROOFING FLUES FIREPLACE - FL. FURNACE KITCHEN WATER HEATER URNACE GAS Olt I hereby acknowledge that I have read this application and state that the above is correct and agree to comply with all City Ordinances and State Laws regulating building construction. Applicant 3N11 Al2i3dO2id A PLOT PLAN 1 SETBACK 3N11 Ala3dO2id STREET PLANNING & ZONING INFO. ZONING DISTRICT .. TYPE OF OCCUPANCY NUMBER OF STORIES FOTAL HT. AREA OF LOT FRONT YARD SETBACK FROM PROP. LINE SIDE YARD SETBACK FROM PROP. LINE REAR YARD Approved: CHIEF BUILDING OFFICAL Approved: ZONING ADMINISTRATOR By: By: CITY 1 :1U NAME MAIL ADDRESS BUILDING DEPARTMENT — CITY / BOROUGH OF KODIAK APPLICATION FOR BUILDING PERMIT AND CERTIFICATE Applicant to fill in between heavy lines. BUILDING ADDRESS LOCALITY NEAREST CROSS ST. w Z 3 0 a O J DESCRIPTION NAME ADDRESS STATE LICENSE NO. NAME ADDRESS CLASS OF WORK NEW DEMOLISH ALTERATION REPAIR ADDITION MOVE USE OF BUILDING SIZE OF BUILDING HEIGHT NO. OF ROOMS NO. OF FLOORS NO. OF BUILDINGS 1 NO. OF BUILDINGS NOW ON LOT NO. OF FAMILIES SIZE OF LOT USE OF BLDG. NOW ON LOT SPECIFICATIONS FOUNDATION MATERIAL EXTERIOR, PIERS WIDTH OF TOP WIDTH OF BOTTOM CITY STATE LICENSE NO. SUBDIVISION LOT NO. BLK. DO NOT WRITE BELOW THIS LINE 1. Type of Construction I, II, III, IV, V, VI 2. Occupancy Group A, B, C, D, E, F, G, H, I, J Div. 1, 2, 3, 4, 3. Fire Zone 1 2 3 4 DEPTH IN GROUND R.W. PLATE (SILL) 51/1 SPA. SPAN GIRDERS JOIST 1st. FL. JOIST 2nd. F L. JOIST CEILING EXTERIOR S I JI 7. INTERIOR STUDS ROOF RAFTERS BEARING WALLS COVERING EXTERIOR WALLS ROOF INTERIOR WALLS RERO FLUES FIREPLACE FL!FURNACE KITCHEN ,. WATER HEATER FURNACE GAS OIL I hereby acknowledge that I have read this application and state that the above is correct and agree to comply with all City Ordinances and State Laws regulating..btxllding construction. Applicant, OF OCCUPANCY BUILDING PERMIT NO. VALUATION BUILDING FOUNDATION FRAME PLASTER FLUES FINAL DATE ISSUED BLDG. FE I S PLAN CHK. FEE TO I AL PLUMBING ROUGH SEPTIC TANK SEWER GAS FINISH Approved: CHIEF BUILDING OFFICAL By: ELECTRIC ROUGH FINISH FIXTURES MOTORS FINAL ZONING DISTRICT 3N11 A.0 3dO dd A PLOT PLAN SETBACK 3N11 A1213dOiid STREET 71 - PLANNING - TYPE OF OCCUPANCY PLANNING & ZONING INFO. NUMBER OF STORIES / AREA OF LOT /C T JJJJ FRONT YARD SETBACK FROM PROP. LINE /j SIDE YARD SETBACK FROM PROP. LINE e' TOTAL Hf. REAR YARD , Approved: ZONING ADMINISTRATOR //i/ B AllEgb