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10/04/2007 Regular MeetingKODIAK ISLAND BOROUGH Regular Assembly Meeting October 4, 2007 A regular meeting of the Kodiak Island Borough Assembly was held October 4, 2007 in the Assembly Chambers of the Kodiak Island Borough Building, 710 Mill Bay Road. The meeting was called to order at 7:30 p.m. The invocation was given by Captain John Quinn of the Salvation Army. Present were Mayor Jerome Selby, Assembly members Tom Abell, Pat Branson, Jerrol Friend, Sue Jeffrey, Chris Lynch, Reed Oswalt, and Barbara Williams. Staff members present were Manager Rick Gifford, Community Development Director Bud Cassidy, E &F Director Woody Koning, Finance Director Karl Short, Clerk Nova Javier, and Deputy Clerk Marylynn McFarland. APPROVAL OF AGENDA AND CONSENT AGENDA JEFFREY moved to approve the agenda and consent agenda, seconded by BRANSON. VOICE VOTE ON MOTION CARRIED UNANIMOUSLY. APPROVAL OF MINUTES — None. AWARDS AND PRESENTATIONS — None. CITIZENS' COMMENTS Shawn Dochtermann appreciated the Assembly for the adoption of Resolution No. FY2008 -09 at the last special meeting. He said a resolution for the Bering Sea Crab Crewmen will be forthcoming. Emil Norton, Senior Citizens of Kodiak Inc. Board Member, thanked the Assembly for its continued support of the seniors in Kodiak. He provided an update on the current activities at the Senior Center. Mel Stephens urged the Assembly to vacate Assembly member Jeffrey's seat noting that the Assembly members' credibility is at stake. COMMITTEE REPORTS — None. PUBLIC HEARING A. Ordinance No. FY2008 -06 Rezoning 15.9 Acres (Proposed Lots 3 &4 Stratman Subdivision, U.S. Survey 4964) From C- Conservation Zoning District To RNC -Rural Neighborhood Commercial District (P &Z Case 08 -006.) WILLIAMS moved to adopt Ordinance No. FY2008 -06, seconded by BRANSON. Manager Gifford reported this was considered by the Planning and Zoning Commission at their August 15, 2007 public meeting and recommended approval to the Assembly. Mayor Selby opened the public hearing. Kodiak Island Borough Assembly Minutes October 4, 2007 Page 459 Bob Brodie, Associated Island Brokers Realtor, represented the property owners. He noted this was in compliance and there have been support of this rezone. Mayor Selby closed the public hearing ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY; Abell, Branson, Friend, Jeffrey, Lynch, Oswalt, and Williams A. Ordinance No. FY2008 -07 Prohibiting the Use of High Speed Watercraft on Designated Lakes. WILLIAMS moved to adopt Ordinance No. FY2008 -07, seconded by JEFFREY. Manager Gifford reported this was introduced by Assembly member Williams and she worked with the Borough Attorney on the ordinance that is before the Assembly. A substituted version was provided that reflects Assembly discussion from the last work session. WILLIAMS moved to amend Ordinance No. FY2008 -07 by substitution, seconded by JEFFREY. ROLL CALL VOTE ON MOTION TO AMEND BY SUBSTITUTION CARRIED UNANIMOUSLY: Branson, Friend, Jeffrey, Lynch, Oswalt, Williams, and Abell Mayor Selby opened the public hearing. The following commented on the proposed ordinance. Craig Baker Ed Coe Mike Sweeney Joyce Fried Levy Fried Scott Griffin Ron Fried Travis Diemer Karen Seaton Bill Oliver Jacob Keplinger Hans Tschersich Jenny Fried Nick Szabo Jacque Jones Andy McCarty Iver Malutin Cody Foster After a 5- minute recess, Mayor Selby reconvened the meeting at 9 p.m. Todd Hiner Steve Branson John Neff Lorna Arndt Matt Keplinger Ysa Stihl Letters from the following were read for the record: Lucas Fried and Jane Eisemann. Discussion ensued about the need for a compromise to specifically address the original Task Force rules, timing of this ordinance, hours, signs, etc. LYNCH moved to amend Ordinance No. FY2008 -07, Section 2, Item B.1 to read "Motorized watercraft may be operated between the hours of 10 a.m. to 9 p.m. on even numbered days" and by inserting the words "The Rules of the Lake shall be posted and /or installed and should include enforcement officer's contact number. The Rules of the Lake shall be deferred to Parks and Recreation Committee for annual review ", seconded by JEFFREY Kodiak Island Borough Assembly Minutes October 4, 2007 Page 460 Assembly member Lynch explained the need for posting the rules and the need for review of the Parks and Recreation Committee. ROLL CALL VOTE ON THE AMENDMENT FAILED FIVE TO TWO: Abell, Branson, Friend, Oswalt, and Williams (Ayes); Jeffrey and Lynch (Noes) After further discussion, Assembly members opined that additional review was needed. OSWALT moved to postponed Ordinance No. FY2008 -07 to November 1, 2007, seconded by FRIEND Assembly member Williams was disappointed and noted that the substituted ordinance was a good compromise and it was based on Assembly discussion at the last work session. ROLL CALL VOTE ON MOTION TO POSTPONE CARRIED UNANIMOUSLY: Jeffrey, Lynch, Oswalt, Williams, Abell, Branson, and Friend B. Ordinance No. FY2008 -08 Amending Kodiak Island Borough Code of Ordinances Title 3 Revenue and Finance Chapter 3.04 Public Finance - Management and Accounting Section 3.04.020 Permissible Investments Section 3.04.022 Collateral Requirements Section 3.04.051 Facilities Fund by Changing the Types of Instruments the Borough Can Invest in Changing the Investments Allowed in the Facilities Fund, and Changing Disbursements from the Facilities Fund from a Percent of Interest Earned to a Percent of Market Value (POMV.) WILLIAMS Moved to adopt Ordinance No. FY2008 -08, seconded by BRANSON Manager Gifford reported this ordinance would allow Facilities Fund to be managed and invested by an external money manager and this would allow funds to be invested in more instruments than currently allowed. It would also let the Borough maximize interest earnings on funds held by the Facilities Fund and it addresses some housekeeping changes to bring this code section up -to -date with current practice. Karl Short, Finance Director, gave a PowerPoint presentation regarding the current investments. Mayor Selby opened the public hearing. The following spoke in opposition: Louise Stutes, Mel Stephens, and Mike Anderson. Mayor Selby closed the public hearing. Assembly members appreciated Finance Director Short for doing a good job managing the finances of the Borough. Assembly members would like to see more discussion about the ordinance, there were concerns about the possibility of tapping into the principal. Kodiak Island Borough Assembly Minutes October 4, 2007 Page 461 Assembly member Branson supported the ordinance in that it was a measure of getting more money for the expenses of the Borough. WILLIAMS moved to postponed Ordinance No. FY2008 -08 to November 15, 2007, seconded by BRANSON ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY: Lynch, Oswalt, Williams, Abell, Branson, Friend, and Jeffrey BOROUGH MANAGER'S REPORT Manager Gifford provided a project status update and reported on the following: • Fire Engine at Bayside will be put in service in the next two weeks. • First Responder EMS will take effect one week following certification of the election. • Congressional committee has changed KIB roads to KIB Trails. Awaiting documentation from Department of Transportation. • Traffic flow study for North Star Elementary School. • Kodiak Middle School Seismic upgrade 75% complete. • New pool design documents have been put out and are due October 31. Expected date of completion is August 2009. • Middle School asbestos abatement has been completed. • KHS kitchen flooring has been completed. • Preliminary design for Peterson seismic upgrade and Larsen Bay school floor repair. Woody Koning, E &F Director, reported on the current status of the contaminated soil at the high school. Manager Gifford noted he will be out of the office October 6 -19 in attendance of ICMA and for personal leave. Clerk Javier have asked the borough attorney for interpretation referencing the attendance policy of Assembly members per KIBC 2.16.060. She asked the attorney to clarify code language specifically about the types of meetings that would count toward this attendance policy. Clerk Javier have met with him on Tuesday and have been providing documentation to put together the opinion. The attorney noted in his email today that we should have the opinion by next week. MESSAGES FROM THE BOROUGH MAYOR Mayor Selby thanked everyone who voted at the last election and all the volunteers. He also thanked the school district and for gathering and working on a facilities plan addressing educational needs of the future. UNFINISHED BUSINESS — None. Kodiak Island Borough Assembly Minutes October 4, 2007 Page 462 NEW BUSINESS A. CONTRACTS 1. *Contract No. FY2008 -10 Bayview Service Area Road Maintenance and Repair, Snow Removal and Sanding. This item was approved under consent agenda. B. OTHER ITEMS Mayor Selby recessed the regular meeting at 10:25 p.m. and convened the Board of Adjustment. BOARD OF ADJUSTMENT An Appeal of the Planning and Zoning Commission's Decision on Case No. 08 -003 A Variance, According to KIBC 17.66, to Allow an Existing Cabin to Encroach 15 Feet Into the Required 25 Foot Front Yard Setback and a Variance According to KIBC 17.66, to Allow an Existing Cabin to Encroach 6 Feet Into the Required 25 Foot Side Yard Setback, as Required for Structural Developments Located in the C- Conservation Zoning District (KIBC 7.13 /Appellant: Richard Key.) Mayor Selby announced that six appeal notices were mailed and one was returned. He announced that the Assembly shall decide the appeal upon the appeal record and the written and oral argument presented on the appeal. Per Borough code, only persons who have submitted written argument on the appeal, or testified before the commission, or submitted written comments to the commission may present oral argument. The order of oral argument was held as follows: 1. Borough staff, including commission representatives. Bud Cassidy, Community Development Director, reported on the decision on the Commission, presenting evidence and reasons relied upon during the process. He noted for the record that Commission Chair Dave King was also in attendance. He advised that the structure was built within the front and side yard setbacks and noted. This variance was reviewed by the commission and decided per Borough code. He noted the following six standards needed to be met to grant a variance: 1. Exceptional physical circumstances or conditions applicable to the property or intended use of development which generally do not apply to other properties in the same and use district. — The Commission believed that the applicant failed to meet this provision because the parcel is not unique to other parcels in the Conservation Zoning District, most of the lands in that district share similar characteristics. 2. Strict application of the zoning ordinance would result in practical difficulties or unnecessary hardships. — Structure was already constructed there is obviously going to be some practical difficulties. Commission agreed this provision was met and there are practical difficulties and unnecessary hardships. 3. Granting a variance will not result in material damage or preiudiced to other properties in the vicinity nor detrimental to the public health and safety. Commission agreed that granting the variance would not result in a material damage to adjacent properties. Kodiak Island Borough Assembly Minutes October 4, 2007 Page 463 4. Granting the variance will not be contrary to the objectives of the Comprehensive Plan. The record shows that having a cabin in the Conservation Zone is consistent with the Comprehensive Plan. 5. Actions of the applicant did not cause special conditions or financial hardships from which relief is being sought by the variance. Commission felt this provision was not met, this is exactly what is happening. The action of the applicant did cause a special condition or financial hardship from which relief is being sought. In attention to the requirements of the Borough Code and the Zoning law caused this need for variance and need for relief. By the Assembly's own laws a zoning compliance permit is required throughout the Borough not just on the road system. 6. Granting the variance will not permit a prohibited land use in the district involved. Commission felt that granting this variance would not permit a prohibited and use in the district. Director Cassidy noted that the Commission agreed that condition no. 1 and 5 were not met. He stressed the importance of following local codes within all areas of the Borough. In response to Assembly member Williams, he noted a physical inspection was conducted and photographs were taken. 2. Appellant - Richard Key Mr. Richard Key commented that he purchased the property from Mr. Walton and since the cabin has been there for a long time, it did not raise an alarm for him to investigate the situation. He was notified by KIB staff after purchase of the property about the variance and setbacks. His variance request was denied and was given an option by staff to continue using the cabin until a new cabin is built according to code. He opted not to build a second cabin and go through the appeal process. Mr. Key advised that the property is on the side of a cliff and access is in bad condition. He questioned why the variance mattered since the cabin is located in such a remote area and it has been on the same location for the past 20 years. He asked the Assembly to consider this as an extreme case considering the location and age of the property in question. He noted that this entire process has cost him $6,000. 3. Private Person Supporting the Appeal — none. 4. Private Person Opposing the Appeal. Mr. Tom Schantz submitted a letter opposing the appeal. The letter became a part of the appeal record. 5. Appellant, for Rebuttal: 10 minutes - (Richard Key) Mr. Key inquired about grandfather rights. Director Cassidy explained the grandfather clause was in effect sometime in 1980 or 1981 and did not go back that far. Discussion ensued regarding enforcement of the code island wide. Also noted on the P &Z minutes was that two Commissioners determined that the current location was the only location that was buildable. Additional comments were made regarding the proposal made by CDD director regarding time allotment to build a new cabin. Kodiak Island Borough Assembly Minutes October 4, 2007 Page 464 Commissioner King explained why he voted in favor of the variance. He said the current location was the only place to build a cabin on the property. Mr. Ed Walton, previous owner of the property, noted at the time he did his due diligence to make sure that he was in compliance with the regulations. WILLIAMS moved to reverse in whole Planning & Zoning Commission's Decision on Case No. 08- 003 A Variance in Accordance with KIBC 17.66, to Allow an Existing Cabin to Encroach 15 Feet Into the Required 25 Foot Front Yard Setback and a Variance According to KIBC 17.66, to Allow an Existing Cabin to Encroach 6 Feet Into the Required 25 Foot Side Yard Setback, as Required for Structural Developments Located in the C- Conservation Zoning District (KIBC 17.13) (Appellant: Richard Key), seconded by OSWALT. ROLL CALL VOTE ON MOTION CARRIED SIX TO ONE: Oswalt, Williams, Abell, Branson, Friend, and Jeffrey (Ayes), Lynch (No) FRIEND moved to postpone the Findings -of -Fact of the Board of Adjustment on the Planning and Zoning Commission's Decision on Case No. 08 -003 A Variance, According to KIBC 17.66, to Allow an Existing Cabin to Encroach 15 Feet Into the Required 25 Foot Front Yard Setback and a Variance According to KIBC 17.66, to Allow an Existing Cabin to Encroach 6 Feet Into the Required 25 Foot Side Yard Setback, as Required for Structural Developments Located in the C- Conservation Zoning District (KIBC 17.13)(Appellant: Richard Key) to the next regular Assembly meeting, seconded by BRANSON. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY: Williams, Abell, Branson, Friend, Jeffrey, Lynch, and Oswalt CITIZENS' COMMENTS Mel Stephens commented on some parliamentary issues during the meeting and asked that Robert's Rules be checked. Nick Szabo voiced his disappointment with the Assembly's decision regarding the Island Lake ordinance. ASSEMBLY MEMBER COMMENTS Assembly member Lynch had no comments. Assembly member Oswalt hoped that the issues before the Assembly be addressed and taken care of. He expressed his willingness to work with the Clerk as they go through the process. Assembly member Jeffrey congratulated Sven Haakanson and Trevor Dunbar. She wished Assembly member Lynch a happy birthday. She congratulated the newly elected candidates. She expressed her support of the Clerk getting clarification on the attendance code and looked forward to the Borough Attorney's opinion. She was dismayed and sorry about the issues which caused some concern about her performance as an Assembly member. In response to Assembly member Branson, Manager Gifford noted that background checks are being conducted for the grant writer position. Assembly member Branson noted that a lot of Kodiak Island Borough Assembly Minutes October 4, 2007 Page 465 attention is being given on the attendance issues and she was in support of Clerk Javier and the Borough as they go through the process. Assembly member Abell noted that the Clerks have done a great job with the election. He noted that an attorney's opinion was being sought regarding attendance issues. He was disappointed that ordinances were being changed even after extensive discussion during work session Assembly member Friend agreed with Assembly member Abell; however, he noted that there are some ordinances that needed more work. Assembly member Williams noted the Assembly missed an opportunity to act on the Island Lake ordinance in a timely manner. She said the Assembly was given plenty of information and noted this issue will never go away. Announcements — Mayor Selby The next regular work session of the Assembly is scheduled on Thursday, October 11, 2007 at 7:30 p.m. in the Borough Conference Room and the next regular meeting of the Assembly is scheduled on Thursday, October 18, 2007 at 7:30 p.m. in the Borough Assembly Chambers. ADJOURNMENT JEFFREY Moved to adjourn the meeting, seconded by BRANSON. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY: Abell, Branson, Friend, Jeffrey, Lynch, Oswalt, and Williams Mayor Selby adjourned the meeting at 11:30 p.m. ATTEST: Kodiak Island Borough KODIAK ISLAND BOROUGH Je me M. Selby, M Nova M. Javier, CMC, Borough Clerk Approved: December 20, 2007 Assembly Minutes October 4, 2007 Page 466