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06/17/1999 RMA regular meeting of the Kodiak Island Borough Assembly was held June 17, 1999 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. Mayor Stevens led the Pledge of Allegiance. There were present: ROLL CALL Mayor: Gary Stevens, Presiding Assemblymembers: Tom Abell Scott Arndt Tuck Bonney Absent: Pat Branson Robin Heinrichs comprising a quorum of the Assembly; and Assemblymembers Branson and Heinrichs were out and asked to be excused. BONNEY, seconded by ABELL VOTE ON MOTION TO EXCUSE MOTION CARRIED Unanimous voice vote Regular Assembly Meeting June 17, 1999 KODIAK ISLAND BOROUGH Regular Assembly Meeting June 17, 1999 Greg Spalinger Wayne Stevens Linda Freed, Interim Manager Donna Smith, CMC /AAE, Clerk Judi Nielsen, CMC, Deputy Clerk moved to excuse Assemblymembers Branson and Heinrichs. REGULAR MEETING Volume XXV Page 119 APPROVAL OF AGENDA AND CONSENT AGENDA STEVENS, seconded by BONNEY moved to approve the agenda and consent agenda. Clerk Smith read the items for consideration under "Consent Agenda ". VOTE ON MOTION TO APPROVE MOTION CARRIED Unanimous voice vote APPROVAL OF MINUTES None. AWARDS AND PRESENTATIONS Mayor Stevens presented a plaque and flowers to retiring Borough Clerk Donna Smith. Clerk Smith thanked the Assembly and community for their support during the past eight years. CITIZENS' COMMENTS A. Agenda Items Not Scheduled For Public Hearing and General Comments. Mike Milligan phoned to compliment the Assembly for reducing the Borough's debt ratio. He was impressed that the Assembly was able to maintain a fund balance that would help with future bond ratings. He thanked Donna for her service as Borough clerk. COMMITTEE REPORTS Assemblymember Stevens, Providence Kodiak Island Hospital Advisory Board representative, reported that the hospital was performing above financial expectations. He pointed out that although the inpatient portion lost money, the outpatient, emergency room services, and extended care facilities were exceeding financial expectations. Regular Assembly Meeting June 17, 1999 APPROVAL OF AGENDA AND CONSENT AGENDA APPROVAL OF MINUTES AWARDS AND PRESENTATIONS MONTH CITIZENS' COMMENTS COMMITTEE REPORTS Volume XXV Page 120 EXECUTIVE SESSION STEVENS, seconded by BONNEY VOTE ON MOTION Ayes: Abell, Arndt, Bonney, Spalinger, Stevens Noes: None Absent: Branson, Heinrichs MOTION CARRIED: Unanimous Mayor Stevens asked Borough attorneys Matt Jamin and Alan Schmitt, Manager Freed, Clerk Smith, and Deputy Clerk Nielsen to join the Assembly in executive session. Mayor Stevens reconvened the regular meeting and announced that no action was taken as a result of the executive session. PUBLIC HEARING All ordinances and resolutions presented at this meeting were introduced by title only and copies made available to the public. A. Ordinance No. 98 -10D Amending Ordinance No. 98 -10 1999 Fiscal Year Budget to Reflect Amendments. STEVENS, moved to adopt seconded by ABELL Ordinance No. 98 -10D. BONNEY, seconded by ARNDT Regular Assembly Meeting June 17, 1999 moved to convene into executive session to hear legal advice to avoid litigation. moved to amend Ordinance No. 98 -10D by substitution. EXECUTIVE SESSION PUBLIC HEARING ORDINANCE NO. 98 -10D Volume XXV Page 121 Manager Freed gave a brief overview of the current year -end budget adjustments. VOTE ON MOTION TO AMEND Ayes: Arndt, Bonney, Spalinger, Stevens, Abell Noes: None Absent: Branson, Heinrichs MOTION CARRIED Unanimous Mayor Stevens opened the public hearing. Pam Foreman, Convention and Visitors Bureau director, reported the additional request for $1,500 would supplement funding for the convention development assistant. This position would focus on bringing meetings and conventions to Kodiak and hopefully increase bed tax revenues. She thanked the Assembly for their support. Mayor Stevens closed the public hearing and reconvened the regular meeting. VOTE ON MOTION TO ADOPT AS AMENDED Ayes: Bonney, Spalinger, Stevens, Abell, Arndt Noes: None Absent: Branson, Heinrichs MOTION CARRIED Unanimous MESSAGES FROM THE INTERIM BOROUGH MANAGER MESSAGES FROM MANAGER Manager Freed thanked the staff and community for their support as the interim manager. Manager Freed said the Foreign Press Corps would meet in Kodiak on Tuesday, June 22. There would be a Regular Assembly Meeting June 17, 1999 Volume XXV Page 122 public meeting on June 23 in the Borough conference room on the airport master plan, and she urged the community to attend the meeting. Manager Freed reported that Brad Gilman, Washington D.C. lobbyist, said the trip for the Stellar sea lion hearings and the effort to educate Commerce Department and other Washington, D.C. staff was considered very successful and he would follow up on the long list of items presented. Manager Freed said Mr. Gilman complimented the community on putting together a successful trip. Manager Freed reported that cleaning the auditorium curtains was the most pressing school district maintenance project. The fire marshall required the curtains to be cleaned and sprayed with fire retardant every five years. She would provide more information at the next work session. Manager Freed observed a major oil spill drill in Valdez and she was pleased with the results. She was encouraged to participate in future drills to protect Kodiak's interest in the event of another oil spill. MESSAGES FROM THE BOROUGH MAYOR MESSAGES FROM . MAYOR Mayor Stevens said the budget process was difficult as this was the first budget with the new manager plan. He was pleased that the budget was balanced despite a tax cap and reduced state revenue sharing. He clarified that the Assembly asked for and received the resignation of Thomas Manninen. He said the Code provided for Ms. Freed to act as the manager in the absence of the manager; however, the Assembly felt that it was appropriate to appoint Ms. Freed as the interim manager. This was a transitional stage and there would be a thirty to ninety day process to hire a new manager. Mayor Stevens thanked Clerk Smith for her years of support to the Assembly. He noted that she left a well trained staff. Regular Assembly Meeting June 17, 1999 Volume XXV Page 123 He noted the extensive time and effort spent on the North Pacific Fisheries Management Council meetings. He was pleased with the outcome of the meetings. OLD BUSINESS OLD BUSINESS A. BOARD OF ADJUSTMENT FINDINGS OF FACT on the BOARD OF Granting of an Appeal of the Planning and Zoning ADJUSTMENT Commission's Decision on Case No. 99 -002 FINDINGS OF FACT Granting a Lot Size Variance According to K.I.B.C. 16.40.050.B.1 Allowing the Dividing of an Existing Non - Conforming Lot (ASLS 77 -33) of 4.82 Acres Into Two Lots (one 3.32 Acres, and the Other 1.5 Acres) Both of Which are Less Than the Minimum Five (5) Acres Required by K.I.B.C. 17.13.050.A in the C- Conservation zoning district. Selief Bay, Raspberry Island. (Applicant: Greg R. Gabriel, Jr.) (Appellant: Peter and Baerbel Guttchen; Agent: Steven P. Gray, Attorney). ARNDT, seconded by ABELL Manager Freed read the findings -of -fact as follows: 17.66.050 A.1. There are exceptional physical circumstances or conditions applicable to the property or to its intended use or development which generally do not apply to other properties in the same land use district. The subject property, ASLS 77 -33, is only 4.82 acres in size. As such this property is nonconforming, since the minimum lot size in the C- Conservation zoning district is five (5) acres. The Board of Adjustment is generally aware that there are many other remote parcels in the Kodiak Island Borough that are nonconforming due to lot size (150 plus), for example parcels created by the Larsen Bay Tribal Council. Therefore this characteristic of the property is not exceptional and does apply to many Regular Assembly Meeting June 17, 1999 moved to approve the findings -of -fact on Planning and Zoning Commission Case No. 99 -002. Volume XXV Page 124 other properties in the C- Conservation zoning district. In addition, the physical characteristics of the property do not present development constraints such as severe topography, excessive water coverage, unusual drainage, or other physical features. The subject property has a slight grade rising from a rocky gravel beach. The property is generally rectangular in shape and contains a stand of virgin Sitka spruce. The one, site development constraint, is limited access to potable water. The staff report prepared for the request indicates that the development potential of this property is generally equal to that of other properties in the C- Conservation zoning district. 17.66.050 A.2. The strict application of the provisions of this title (Title 17 - Zoning) would result in practical difficulties or unnecessary hardships. The New Illustrated Book of Development Definitions (Rutgers, the State University of New Jersey, 1993) comments that "hardship is related to the physical characteristics of the property, and without the variance, the property becomes unusable." The applicant has claimed practical difficulties and unnecessary hardships. Specifically, the applicant has stated that "denial of the variance would result in the practical difficulty of routine maintenance, clearly defined property lines, and clouded title to every structure on the property. This also has an adverse affect on quality of life, and the general enjoyment of the property by all involved." However, these hardships are not related to the physical characteristics of the property. The hardships cited by the applicant are clearly related to conflicts resulting from the joint ownership of the property, (i.e. "clearly defined property lines and clouded title to every structure on the property" and "adverse affect on quality of life and the general enjoyment of the property by all involved "). While the ownership conflict creates difficulties for the applicant's use and enjoyment of the property, the Kodiak Island Borough permits use and occupancy of the land, by all those with an ownership interest, Regular Assembly Meeting June 17, 1999 Volume XXV Page 125 under Kodiak Island Borough Code (KIBC) Section 17.36 (Existing Nonconforming Uses and Structures). This code section specifically provides for the routine maintenance and occupancy of nonconforming structures, permitting the applicant to maintain his structures on the property and to continue to use them as they have been used in the past. 17.66.050 A.3. The granting of the variance will not result in material damage or prejudice to other properties in the vicinity nor be detrimental to the public's health, safety or general welfare. Granting the variance could result in material damage or prejudice to other properties in the vicinity, as evidence by written appeal notices received by the Board of Adjustment, and the verbal and written testimony of the "co- owner" of the parcel. Specifically, responses to appeal notices identified concerns about the negative impact of varying from the minimum five -acre lot size in the C- Conservation zoning district. One respondent in particular stated, "Please consider the possible precedent you will be setting if you allow this. I don't like the consequences of over development and over utilization of resources." The attorney for the "co- owners" of the property has stated that granting the variance "will materially prejudice Mr. and Mrs. Guttchen's property which has been developed into a remote lodge business." Granting the variance, is a precursor to subdivision of the property and the creation of an independent lot or parcel, there is no other reason for which to request the variance. The development potential of a newly created parcel is greater, both by density and type, than is permitted by KIBC Section 17.36 on the existing parcel. Specifically, the C- Conservation zoning district permits out - right, for example, the development and operation of a lodge that contain provisions for up to six clients, on each individual lot in the zoning district. As a single lot, the subject parcel is only permitted to contain one lodge operation, and the historical recreational cabin and associated activities. Perhaps more significantly, from the perspective of material damage or prejudice to other properties in Regular Assembly Meeting June 17, 1999 Volume XXV Page 126 the vicinity, is the perceived precedent that will be established if the variance request is granted. As already noted there are many other non - conforming lots in the C— Conservation zoning district, and large number of lots that are greater than five acres in size, but less than ten acres in size. Granting this request can be seen as setting policy that suggests that ownership disputes may be solved through the variance and lot subdivision process, contrary to the regulations contained in the C- Conservation zoning district. 17.66.050 A.4. The granting of the variance will not be contrary to the objectives of the comprehensive plan. Granting the variance will not generally be contrary to the objectives of the Comprehensive Plan, since the Kodiak Island Borough Coastal Management Program (KIBCMP); the plan applicable to the property is a performance, standards -based document. However, the plan is based on a presumption that the minimum, acceptable developmental lot size in the remote areas of the Kodiak Island Borough is five (5) acres. Specifically, the KIBCMP states, "The Kodiak Island Borough shall minimize new regulations by using existing ordinances and codes to implement the Coastal Management Program whenever possible." (p -5- 6) 17.66.050 A.5. Actions of the applicant did not cause special conditions or financial hardship or inconvenience from which relief is being sought by a variance. The State of Alaska issued patent to this property, an open -to entry parcel of 4.82 acres, to Joseph Brodman in 1979. Mr. Brodman agreed to give 1.5 acres of the parcel to Mr. Gregory Gabriel, Sr. in exchange for electrical supplies. Mr. Brodman executed a quitclaim deed, intended as security only, in favor of the Gabriels, conveying to them an undivided one -half interest in the 4.8 -acre parcel. Prior to delivering the quitclaim to the Gabriels, Mr. Brodman executed a lease to the Guttchens which, Regular Assembly Meeting June 17, 1999 Volume XXV Page 127 on its face, conveyed the entire 4.8 acres. Mr. Brodman and the Guttchens also executed, but did not record, a separate agreement acknowledging that the Gabriels had been given 1.5 acres. Mr. Gabriel discovered the recorded Guttchen lease. Difficulties among the three parties ensued; culminating in a lawsuit and this variance request. While the applicant (Gregory Gabriel, Jr.) did not have a legal interest in the property at the time the above referenced property agreements were executed, he did have a potential future interest in the property as an immediate family member. Variances can not be granted for the purpose of relieving an applicant of special conditions, financial hardship, or inconvenience caused by the actions of the applicant. The ownership conflict exhibited in this case, for which the variance is sought, is partially the result of actions by a member of the applicant's immediate family, from whom he received his interest in the property. 17.66.050 A.6. Granting the variance will not permit a prohibited land use in the district involved. Granting the requested variance will not permit any prohibited land uses in the C- Conservation zoning district (KIBC Chapter 17.13). Kodiak Island Borough code requires that all the specific requirements of the C- Conservation zoning district are met, including land use limitations, in the event a lot size variance is approved. THE KODIAK ISLAND BOROUGH ASSEMBLY, SITTING AS THE BOARD OF ADJUSTMENT, FINDS THAT the applicant has failed to meet all six of the criteria contained in KIBC Chapter 17.66.050 in order for a variance to be granted. Specifically, the applicant has failed to meet sections A.1, A.2, A.3, A.4, and A.5 of Chapter 17.66.050. THEREFORE, the Board of Adjustment grants the appeal and overturns the decision of the Kodiak Island Borough Planning and Zoning Commission to grant the applicant's request for a lot size variance. VOTE ON MOTION TO APPROVE Regular Assembly Meeting June 17, 1999 Volume XXV Page 128 Ayes: Spalinger, Stevens, Abell, Arndt, Bonney Noes: None Absent: Branson, Heinrichs MOTION CARRIED Unanimous B. Contract No. 99 -02 Lease Agreement for One Xerox CONTRACT DC230 Copier. NO. 99 -02 The motion to award Contract No. 99 -02 with Radar Alaska for lease of one Xerox DC230 copier for three years at $1051.16 per month was before the Assembly. Manager Freed said the contract was reconsidered and then postponed until after the budget process. Assemblymember Arndt said the copier was not funded in the budget and he opposed approving the contract. He would consider a mid -year budget adjustment for the copier if revenues were above expectations. VOTE ON MOTION TO AWARD Ayes: Noes: Absent: MOTION FAILED NEW BUSINESS A. CONTRACTS CONTRACTS Bonney Stevens, Abell, Arndt, Spalinger Branson, Heinrichs 1 Aye, 4 Noes 1. Contract No. 99 -14 Kodiak Island Borough CONTRACT Clerk Employment Agreement (Judith A. NO. 99 -14 Nielsen) STEVENS, moved to approve Contract seconded by ARNDT No. 99 -14 Kodiak Island Regular Assembly Meeting June 17, 1999 NEW BUSINESS Volume XXV Page 129 Borough Clerk Employment Agreement with Judith A. Nielsen. Mayor Stevens was pleased that Deputy Clerk Nielsen would be the new clerk. VOTE ON MOTION TO APPROVE Ayes: Abell, Arndt, Bonney, Spalinger, Stevens Noes: None Absent: Branson, Heinrichs MOTION CARRIED Unanimous B. RESOLUTIONS RESOLUTIONS 1. Resolution No. 99 -10 Establishing Fees of RESOLUTION the Kodiak Island Borough for Fiscal Year NO. 99 -10 2000. BONNEY, moved to adopt Resolution seconded by STEVENS No. 99 -10. Manager Freed provided a brief history on determining Borough fees. Assemblymember Arndt said there was no discussion on changing the Borough building office rent. Manager Freed said the changes were highlighted and she understood the previous fees resolution was not used when bills were sent out. Assemblymember Arndt felt it was inappropriate to increase borough rents and felt the rent monies should be adequate to maintain the building. ARNDT, seconded by SPALINGER Regular Assembly Meeting June 17, 1999 moved to amend Resolution No. 99 -10 by changing the charge for Borough building office rent to $1.40 square foot. Volume XXV Page 130 Assemblymember Stevens wondered about the impact to fiscal year 2000 budget projections. Manager Freed said it would not change the income to the building maintenance fund; however, it would change who paid for it. Assemblymember Stevens said it was not uncommon for the owner to occupy their own building at a lower cost than other tenants. Assemblymember Arndt said this was a community building rented to three government entities and the Borough paid for the school district. He felt it was appropriate that the three entities pay the same rent rate. VOTE ON MOTION TO AMEND Ayes: Arndt, Bonney, Spalinger, Abell Noes: Absent: MOTION CARRIED VOTE ON MOTION TO ADOPT AS AMENDED Ayes: Noes: Absent: MOTION CARRIED D. ORDINANCES FOR INTRODUCTION 1. Ordinance No. 99 -03 Rezoning Lots 15A, 15B, 15C, and 15D U.S. Survey 3099 From R -1 -- Single Family Residential To R- 2 - -Two Family Residential. (2903, 2911, 2927, and 2933 Spruce Cape Road) Regular Assembly Meeting June 17, 1999 Stevens Branson, Heinrichs Unanimous Bonney, Spalinger, Stevens, Abell, Arndt None Branson and Heinrichs Unanimous ORDINANCES FOR INTRODUCTION ORDINANCE NO. 99 -03 Volume XXV Page 131 Ordinance No. 99 -03 was advanced to public hearing on July 1, 1999 under "Consent Agenda ". 2. Ordinance No. 99 -04 Amending Kodiak Island ORDINANCE Borough Code of Ordinances Title 15 NO. 99 -04 Buildings and Construction to Standardize the Kodiak Island Borough and the City of Kodiak Building Codes. Ordinance No. 99 -04 was advanced to public hearing on July 1, 1999 under "Consent Agenda ". E. OTHER ITEMS None. INFORMATIONAL MATERIALS (No action required) 1. Service Area No. 1 Board Meeting of May 17, 1999 2. Kodiak Island Borough School District Board of Education Regular Meeting of April 19 and Special Meetings of May 3, May 10, and May 17, 1999. 1. Kodiak Island Borough School District Board of Education Summary of June 7, 1999. Assemblymember Arndt was pleased to work with Clerk Smith and he looked forward to continue working with Deputy Clerk Nielsen as the new clerk. Assemblymember Abell congratulated Clerk Smith on her retirement. Regular Assembly Meeting June 17, 1999 OTHER ITEMS A. MINUTES OF OTHER MEETINGS MINUTES OF OTHER MEETINGS B. REPORTS REPORTS CITIZEN'S CITIZEN'S COMMENTS COMMENTS None. ASSEMBLYMEMBER COMMENTS ASSEMBLYMEMBER COMMENTS Volume XXV Page 132 Assemblymember Stevens appreciated Clerk Smith's work with past and present Assemblies. He congratulated Deputy Clerk Nielsen and looked forward to working with her as the clerk. He welcomed Ms. Freed as the interim manager. He felt the master plan should include the state airport, municipal airport, and Trident Basin as they were intertwined in their operational uses. The land ownership issue between the U.S. Coast Guard and State of Alaska should be resolved prior to further development. He opposed a planning process with no meaningful conclusion. Assemblymember Bonney would miss Clerk Smith and was looking forward to working with Deputy Clerk Nielsen as the clerk. He announced that the Borough paid the former manager $21,000 in severance pay. He urged residents to call the Borough with questions. Assemblymember Spalinger thanked Clerk Smith for her professionalism and guidance. He welcomed Deputy Clerk Nielsen as the new clerk. ANNOUNCEMENTS The Assembly would meet in a work session and special meeting on Tuesday, June 22 at 7:30 p.m. in the Borough conference room, a work session on Thursday, June 24 at 7:30 p.m. in the Borough conference room, and a regular meeting on Thursday, July 1 at 7:30 p.m. in the assembly chambers. ADJOURNMENT There :being no further business to come before the assembly, Mayor Stevens adjourned the meet at 10:20 p.m. ATTEST: dith A. Niel n, CMC Borough Clerk Regular Assembly Meeting June 17, 1999 Gay L. St °wens Mayor Approved: 07/15/99 ANNOUNCEMENTS ADJOURNMENT Volume XXV Page 133