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> —
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OFF:
D N • TEAR OFF REQUIRED
D TOP LAYER(S)
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INSTALLA710
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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.
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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
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Message 1 el" 47(440966726 /964441-16
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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