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HomeMy WebLinkAboutResolution No. PZ2016-39kwA "I/'llaye with a Past, Cil , with a Future" 210 Fidalgo Avenue, Kenai, Alaska 99611-7794 Telephone: 907-283-7535 / Fax: 907-283-3014 www.ci.kenai.ak.us CITY OF KENAI PLANNING AND ZONING COMMISSION RESOLUTION NO. PZ16-39 (PZ05-35, PZ03-32) CONDITIONAL USE PERMIT AMENDMENT A RESOLUTION OF THE PLANNING AND ZONING COMMISSION OF THE CITY OF KENAI GRANTING A REQUEST FOR AN AFTER THE FACT AMENDMENT OF A CONDITIONAL USE PERMIT FOR EXTRACTION OF NATURAL RESOURCES TO ALLOW DIGGING BELOW THE WATER TABLE. APPLICANT: James Doyle PROPERTY ADDRESS: 2369 Beaver Loop Road, Kenai, AK 99611 LEGAL DESCRIPTION: Tract Al, Beaver Loop Acres Addition No. 1 KENAI PENINSULA BOROUGH PARCEL NO: 04912051 WHEREAS, an application meeting the requirements of Sections 14.20.151, 14.20.152, 14.20.153, 14.20.154 and 14.20.155 of the Kenai Municipal Code has been submitted and received on November 21, 2016; and, WHEREAS, the application affects land which is zoned as Rural Residential (RR); and, WHEREAS, a duly advertised application completeness review as required by Kenai Municipal Code 14.20.152 was conducted by the Planning and Zoning Commission on December 14, 2016; and, WHEREAS, a duly advertised public hearing was required by Kenai Municipal Code 14.20.153 and 14.20.280 was conducted by the Planning and Zoning Commission on January 11, 2017; and, WHEREAS, a Public Hearing was held on January 11, 2017, and was continued until January 25, 2017, and said public hearing was duly advertised as required by Kenai Municipal Code 14.20.153 and 14.20.280 and was conducted by the Planning and Zoning Commission on January 25, 2017; and, WHEREAS, the applicant has demonstrated with plans and other documents that the prerequisites of a Conditional Use Permit have been met. Kenai Municipal Code 14.20.154 details the intent and application process for conditional uses. The code also specifies the review criteria that must be satisfied prior to issuing the permit. The criteria are: Resolution No. PZ16-39 (PZ05-35, PZ03-32) Page 2 of 6 A. The application is in substantial compliance with the requirements of this chapter. Chapter 14.20.151 details the submittal requirements for a Conditional Use Permit to allow for the Surface Extraction of Natural Resources. As required by KMC 14.20.151, the applicant has submitted an updated site plan which shows the location of the gravel extraction area behind Area 2. As part of PZ05-35 this area was shown as a portion of Area 2 and the 150 -foot setback area. As conditioned by the Planning and Zoning Commission then further conditioned and approved by the Board of Adjustment, this area was to remain unexcavated. The applicant has also submitted a horizontal profile of the buffer area which shows the creation of a 2:1 slope for the final excavation. As discussed by the Planning and Zoning Commission at their December 14, 2016 meeting it was determined that the application was complete. Furthermore, staff has spoken with the Army Corps of Engineers and it has been determined that a permit to remove the material from the mapped wetlands and deposit it in uplands in not required for the proposed project. Therefore, the application is in substantial compliance with the requirements of KMC 14.20.151. B. The boundaries of the proposed excavation at it greatest dimensions, including back slopes, are at least two hundred feet (200) from any public right-of-way and at least one hundred fifty feet (150) from other surrounding property lines, except that adjoining permitted surface extraction of natural resources sites are not required to maintain the above one hundred fifty feet (150) excavation between sites. Pursuant to KMC 14.20.154(a)(1) the boundaries of a sand and gravel excavation at its greatest dimensions, including back slopes, need to be at least two "hundred feet from any road or public right-of-way and at least one hundred fifty feet from other surrounding property lines, except that adjoining permitted surface extraction of natural resources sites are not required to maintain the above one hundred fifty feet excavation between sites." As shown on the submitted site plan and in keeping with the site plan from PZ05-35, the buffer area behind Area 2 has been excavated to a distance of approximately 10 feet from the rear property line; where 150 is required. Also, as shown on the submitted site plan and pursuant to PZ05-35, the excavation within in this buffer area has extended to the western property line. This western property line shares a common excavation area with the gravel pit to the west owned by Twin Rivers Resources, Inc. (Foster Construction). Pursuant to KMC 14.20.154, gravel pit sites are not required to maintain setbacks between extraction sites. Thus, the excavation area can be located within this property line. However, as discussed in PZ05-35, water run-off must be maintained on the subject parcel; thus slopes in this area must be grated to 2:1 so that any water run-off will not overflow onto the adjacent parcel. C. The buffer strips between the excavation site and roadways and property lines contain sufficient natural screening to obscure the entire excavation from sight of roadways and inhabited areas. if there is not sufficient natural screening, the site plan must provide for artificial screening. The subject gravel pit is located off Beaver Loop Road and is primarily not visible from the roadway or surrounding residents. The subject parcel is zoned Rural Residential which allows gravel pits as a Conditional Use. Resolution No. PZ16-39 (PZ05-35, PZ03-32) Page 3 of 6 The subject gravel pit was originally issued in 1976 and was later transferred to Mr. and Ms. Doyle in 1985. Thus the subject gravel pit has existed on the subject parcel for approximately 40 years. At present time there are 4 single family residents which are directly adjacent to the subject gravel pit; of which two are owned by members of the Doyle family. Directly to the west of the subject gravel pit is a gravel pit owned by Foster Construction. North of the subject gravel pit is an approximately 320 -acre parcel which is undeveloped and owned by the City of Kenai. This parcel contains a mix of uplands and wetlands as well as mix of woodlands. In viewing the subject gravel pit from Beaver Loop Road, staff was able to observe only a small portion of it briefly while driving in both directions. The subject pit is accessed by a gravel driveway which contains no signs or other identifying markers. The subject gravel pit is fenced along Beaver Loop Road as well as along the gravel driveway. The rear portion of the gravel pit is fenced with wire fencing. Staff did observe portions of the fencing which appeared damaged by trespass snow machine activity. The Conditional Use Permit will be conditioned to require that all damaged portions of the fencing surrounding the entire gravel pit be repaired. Thus, the above finding can be made. D. The site plan provides that back slopes be a minimum of a 2:1 slope, except for the contiguous working face. As depicted on the submitted site plan and grading cross section, all proposed reclamation slopes will be graded to no steeper than 2:1 slope. Therefore, this finding can be made. E. The site plan does not provide for excavation below the water table except where a reasonable method of drainage is available at the particular site or where the proposed future development plan provides for a lake on the site of the excavation. PZ05-35 (PZ03-32) amended the existing Conditional Use Permit to allow for gravel extraction below the water table. The CUP identified three areas known as Area 1, Area 2 and Area 3 where gravel would be excavated to a depth of approximately 30 feet below the original ground surface. Furthermore, PZ05-35 was amended by the Board of Adjustment to required that "If fill material is placed in the pits, it must be fill material originally from this [approximately] 55 -acre site and it must not contain any "hazardous substances" or "industrial waste," "mining waste," "solid waste," or "other waste", pursuant to those definitions found in AS 46.03.900. As part of PZ05-35, Area 1 was identified as having been excavated to the north property line prior to the city's assumption of zoning powers and the adoption of the Kenai Municipal Code. It was further discussed that generally, non -conforming uses are not allowed to be enlarged or increased, pursuant to KMC 14.20.050. However, under the "diminishing asset doctrine" as adopted by the Alaska Supreme Court, excavation down into the water table would not be considered to enlarge or increase the non -conformity of the use. The applicant identified on the site plan that Area 1 would be reclaimed as a lake, thus this area complied with Kenai Municipal Code. At that time, Areas 2 and 3 had not be excavated, therefore they were subject to the setback requirements of KMC 14.20.154. Thus behind Area 2, a 150 setback buffer area was identified on the site plan to not be excavated. Resolution No. PZ16-39 (PZ05-35, PZ03-32) Page 4 of 6 As shown on the site plan dated June 21, 2005, Areas 2 and 3 were identified to be excavated below the water table and then back filled with dirt from on site and planted with grass or used for agriculture purposes. Three of the other six gravel pits in the area have received permits to excavate below the water table. These pits have included a lake as part of their reclamation plan. In 1985 when the original permit was transferred to Mr. and Ms. Doyle, the reclamation plan identified the development of a residential subdivision. The original reclamation plan was never modified; thus a lake was included in the reclamation plan. On the submitted site plan, Area 2 and 3 are show to drain to Area 1 once they have been excavated to depth of 30 feet and sloped to 2:1. They would then be back-filled and planted with grass as part of the reclamation plan. Thus, this finding can be made. If the excavation is to be below the water table and the site is likely to endanger the public safety, the site plan shall provide for fencing of the work area. The existing gravel pit is fenced on all sides; therefore, the excavation will not endanger the public safety. The Conditional Use Permit will be conditioned to require that any fencing which is damaged will have to be repaired prior to any new excavation activities. G. The proposed use of land after extraction is completed is feasible and realistic and is a use permitted in the zone in which the property is located. Pursuant to Kenai Municipal Code and Alaska Statute 27.19, reclamation of the proposed sand and gravel material site would be required. As shown on the submitted site plan and supplemental application materials. The applicant has demonstrated that they will perform site reclamation activities during the fall of each year and as required by the State of Alaska, Department of Natural Resources, Division of Mining, Land and Water. Currently, the applicant has indicted that the reclamation plan will include a lake and natural vegetation. In addition, Area 3 would be used for agricultural purposes. H. The extraction does not destroy the land for the purposes for which it is zoned. The subject parcel and surrounding parcels to the east, south and west are zoned Rural Residential. Pursuant to the Land Use Table in KMC 14.22.010, the Surface Extraction of Natural Resources is an allowed use subject to obtaining a Conditional Use Permit. As proposed, the applicant will reclaim and revegetate the excavation areas by seeding and replacement of top soil over the excavated areas. The need for the particular natural resource within the City of Kenai outweighs any detrimental effects the operation may have on surrounding property owners. There are currently eight active gravel pits operating within the City of Kenai under either a Conditional Use Permit or under a grandfather status. Each pit varies in size and the amount of gravel material extracted from the pit. Pursuant to KMC 14.20.150(f) the operators are required to submit yearly reports to the Planning and Zoning Division for review. In reviewing each yearly report, the amounts of material that are being extracted is very minimal. It appears from reading the reports, that most of the gravel pits are potentially nearing their expected life span and will begin the process of reclamation and closing soon. Resolution No. PZ16-39 (PZ05-35, PZ03-32) Page 5 of 6 Pursuant to the submitted application and annual report submitted by the applicant, approximately 1,382 cubic yards of gravel was excavated from the subject gravel pit. Pursuant to PZ05-35, the Board of Adjustment (BOA) considered an appeal of the decision of the Planning and Zoning Commission to approve the CUP Amendment. It was discussed in the decision by the BOA that there was a concern by surrounding property owners that excavation below the water table could potentially impact the surrounding water supply for neighboring wells. In a memorandum submitted by the then City Engineer there has historically been excavation below the water table by surrounding gravel pits with no indication of effect on groundwater turbidity or flow. Furthermore, the BOA could find no evidence to indicate there has been or ever will groundwater contamination should the amendment to the CUP be granted. Nonetheless, the BOA felt that precautions should be taken to minimize such a risk. Presently staff is unaware of any groundwater contamination as a result excavation below the water table within the subject gravel pit or nearest possible location of down -gradient residential water wells. However, the CUP Amendment will be conditioned to uphold the BOA required condition to only allow excavation to a depth of 30 feet below the original ground surface. J. The applicant is the owner of the subject property. The applicant is the brother-in-law of the owner of the subject property. Pursuant to the submitted application, she has given permission for the application to apply for the proposed Conditional Use Permit Amendment on her behalf, and, WHEREAS, any and all specific conditions deemed necessary by the Planning and Zoning Commission to fulfill the conditions as set forth below shall be met by the applicant. Prior to commencement of extraction of Natural Resources or any reclamation activities, the Applicant shall obtain all necessary State and Federal Permits. 2. Prior to commencement of any extraction of Natural Resources or any reclamation activities, the Applicant shall repair or replace any damaged fencing located on the rear of the site. 3. activities, the Applicant shall submit a revised site plan which labels the area behind Area 2 as Area 2A and ensures that the further subsurface extraction is limited to within 10 feet of the rear property line. 4. Excavation below the water table shall only be allowed in those locations marked Area 1, Area 2, Area 2A and Area 3. 5. There shall be no further excavation below the water table in the Area located up to 10 feet from the rear property line behind Area 2. The final working face shall be back sloped to minimum angle of 2:1. 6. The excavation may not penetrate the subsurface clay/silt layer located approximately 30 Resolution No. PZ16-39 (PZ05-35, PZ03-32) Page 6 of 6 feet below the original ground surface. 7. If fill material is placed in the pits, it must be fill material originally from this approximately 52.5 -acre site and it must not contain any "hazardous substances," or "industrial waste," "mining waste," "solid waste," or `other waste" as defined in Alaska State Statues. 8. Applicant shall file an annual report for the Conditional Use Permit as set forth in Kenai Municipal Code 14.20.155. 9. Applicant shall employ the use of dust control measures to ensure the material site and the driveway fronting onto Beaver Loop Road remain dust free. Dust control shall include the daily use of a water truck and placement of Calcium Chloride on the driveway. A water truck shall also be used to control dust from the working face of the Gravel Pit; and, WHEREAS, PZ05-35 (PZ03-32) is amended to include the above Conditions of Approval and the Conditions of Approval as cited in Resolutions PZ03-32 and PZ05-35 are hereby included by reference and remain in full force and effect. NOW, THEREFORE, BE IT RESOLVED, BY THE PLANNING AND ZONING COMMISSION OF THE CITY OF KENAI, ALASKA THAT THE APPLICANT HAS DEMONSTRATED THAT THE PROPOSED AFTER THE FACT SURFACE EXTRACTION OF NATURAL RESOURCES MEETS THE CONDITIONS REQUIRED FOR SAID OPERATION AND THEREFORE THE COMMISSION DOES AUTHORIZE THE ADMINISTRATIVE OFFICIAL TO ISSUE THE APPROPRIATE PERMIT. PASSED BY THE PLANNING AND ZONING COMMISSION OF THE CITY OF KENAI, ALASKA, this 25' of January, 2017. fit, Je airperson ATTPCT-