HomeMy WebLinkAboutResolution No. 2021-0341
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KENAI
CITY OF KENAI
RESOLUTION NO. 2021-03
Sponsored by: Administration
A RESOLUTION OF THE CITY OF KENAI, ALASKA, SUPPORTING AN AMENDMENT UNDER
CONSIDERATION BY THE KENAI PENINSULA BOROUGH ANADROMOUS WATERS
HABITAT PROTECTION WORK GROUP TO ALLOW LIMITED COMMERCIAL ACTIVITIES
WITHIN THE HABITAT PROTECTION DISTRICT IN THE CITY OF KENAI.
WHEREAS, Kenai Peninsula Borough Code Chapter 21.18- Anadromous Waters Habitat
Protection, established an anadromous waters habitat district on all lands within 50 horizontal feet
of certain waters including the Kenai River; and,
WHEREAS, City Administration had been in contact with the Borough in regards to allowing
greater flexibility for development within the habitat protection district in certain areas in the City
that have historical commercial/ industrial uses and existing footprints in the district and are zoned
industrial or commercial; and,
WHEREAS, it is important that there is reasonable flexibility for responsible development, or re-
development along the river in certain areas as long as the purposes of Chapter 21.18 can be
maintained; and,
WHEREAS, the Borough recently established an Anadromous Waters Habitat Protection Work
Group to review KPB Chapter 21.18 and make recommendations; and,
WHEREAS, the City Administration worked with the Work Group's Chair, Robert Ruffner, and the
Borough's Legal Department to develop a proposed amendment to 21.18; and,
WHEREAS, the amendment provides a permit process for certain commercial development within
the habitat protection district in the City of Kenai; and,
WHEREAS, the uses that can be permitted include docks, boat launches, pedestrian stairs and
boardwalks, utility infrastructure and other activities that do not expand the applicants surface
area footprint, within the habitat protection district; and,
WHEREAS, allowing a process for responsible commercial development within the Borough
created Habitat Protection District in the City of Kenai is in the City's best interest.
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA:
Section 1. That the City Council support an amendment to KPB Chapter 21.18 that allows for
responsible development in certain areas of the Habitat Protection District in the same or a similar
form as provided in the attached recommendation from Sean Kelley, dated January 21, 2021
Section 2. That this resolution takes effect immediately upon passage.
Resolution No. 2021-03
Page 2 of 2
PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this 20"' day of January, 2021.
ATTEST:
Jamie Heinz, CMC, City Clerk
BRIAN GABRIEL, SR., MAYOR
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K E N A I
City of Kenai 1 210 Fidalgo Ave, Kenai, AK 99611-77941907.283.75351 www.kenaixity
MEMORANDUM
TO: Mayor Gabriel and Council Members
FROM: Scott Bloom, City Attorney
DATE: January 14, 2021
SUBJECT: Resolution 2021-03 Anadromous Waters Habitat Protection
Resolution 2021-03 supports an amendment to KPB Chapter 21.18- Anadromous Waters Habitat
Protection that would allow responsible development within the habitat protection district in certain
areas in the City of Kenai. KPB Chapter 21.18 creates a habitat protection district 50 horizontal
feet from certain anadromous waters including the Kenai River, for the purpose of protecting and
preserving anadromous fish, providing a guide for growth and development, achieving goals and
implementing policies of the Borough's comprehensive plan, protecting and enhancing property
values and continuing to enjoy the prosperity and abundance provided by anadromous fish. This
habitat district has restricted certain development along the river. Within the City of Kenai, there
is existing commercial and industrial development along the river that would benefit from further
development or redevelopment that has previously been prohibited by KPB 21.18. The City
Administration has worked with a Borough Work Group, reviewing KPB Chapter 21.18 to promote
an exception for development in the City in these industrial and Commercial zones (and in other
municipalities) that would allow for reasonable commercial or industrial uses of the land that either
are water dependent with mitigation or would not expand the existing development footprint.
Your support and consideration for the approach provided in the attached memo from Sean Kelley
is appreciated.
DocuSign Envelope ID: 9E020AOB-B8B54Bl D-AA10.6CC634D7FA8E
Kenai Peninsula Borough
Legal Department
MEMORANDUM
TO: Robert Ruffner, Chair
Members, Anadromous Waters Habitat Protection Work Group
THRU: Melanie Aeschliman, Planning Director AAA
Samantha Lopez, Acting River Center Manager Sb
FROM: Sean Kelley, Deputy Borough Attorney SK
COPY: Paul Ostrander, City of Kenai Manager
DATE: January 14, 2021
RE: Commercial Activities Re -Write - KPB 21.18.072 - to Improve the
Permitting Code Related to Commercial Activities
This proposed amendment was drafted in collaboration with City of Kenai
Administration pursuant to Chair Ruffner's request.
KPB 21.18.072 (Limited commercial activity within the habitat protection area) is
the only section of code within KPB 21.18 specific to commercial or business
activities, uses or structures with the HPD. The current wording of this section
permitting commercial activities is difficult to interpret, often open to debate, and
has proven to have little useful, practical application. For example, in the past 5
years, it appears that no permits have been issued under this section of code.
It has been requested that this group review commercial activities, specifically
commercial activities within the municipal district, to allow necessary flexibility,
including development or re -development, for growth within our cities while at
the same time continuing to protect important fish habitat.
The proposed amendment essentially repeals current KPB 21.18.072 and replaces
it with a more efficient, standard -driven permitting process specific to commercial
activities. The opening paragraph establishes a permit process for commercial
activities within a municipal district. Subsection A provides for activities that do not
require a permit pursuant to KPB 21.18.065. Subsection B provides 4 categories of
allowed commercial activities with the HPD. Subsection C provides the general
standards applicable to a permit application under this section. Subsection D sets
out the general conditions. Subsection E provides that commercial activities not
permitted under this section are prohibited, unless the use or structure otherwise
qualifies for prior existing status under KPB 21.18.090.
DocuSign Envelope ID: 9E020AOB-B8B5-481D-AA10-6CC634D7FA8E
Page 2 of 4
January 14, 2021
To: Anadromous Waters Habitat Protection Work Group
RE: Commercial Activities (KPB 21.18.072) Repeal & Replace
This proposed amendment provides the planning commission authority to impose
permit conditions necessary to meet the general standards. The proposed
amendments will require mitigation when the proposed activity seeks to expand
the applicant's surface footprint within the HPD.
Code additions are in bold underline and code deletions are shown in [CAPS],
bracketed. Since this amendment proposes a repeal and replace, the deleted
code follows the proposed new language for this section.
21.18.072. - Limited commercial activity within habitat protection district [AREA].
Within the habitat protection district and subiect to the requirements of this
chapter, the planning commission may issue a permit for commercial activities
to be conducted within the municipal district as defined in KPB 21.04.010.
Commercial activities are operations, uses, structures or other activities
implemented for a private business purpose. Public parks, docks, and other
public infrastructure are not considered commercial activities for purposes of
this section.
A. Activities not requiring permit. Commercial activities of the same
nature as those allowed under KPB 21.18.065 do not require a permit
under this section.
B. Allowable Activities. The following commercial activities, uses or
structures may be permitted under this section:
1. Dock and boat launch.
2. Stairs and pedestrian use boardwalks.
3. Gas, electric, water or other utility connections, lines, or poles.
4. Other activities, uses, or structures that either do not expand the
applicant's surface area footprint within the habitat protection
district or are necessary to the operation of the applicant's
business and cannot be located outside of the habitat protection
district due to conditions specific to the property. The burden is
on the applicant, through a registered professional engineer, to
show that conditions specific to the property exist.
C. General standards. The following standards apply to permits issued
under this section:
DocuSign Envelope ID: 9EO20AOB-B8B54B1 D-AA10-6CC634D7FA8E
Page 3 of 4
January 14, 2021
To: Anadromous Waters Habitat Protection Work Group
RE: Commercial Activities (KPB 21.18.072) Repeal & Replace
1. The use or structure will not damage the riparian ecosystem or
riparian wetlands. If substantial evidence supports a finding that
the use or structure will damage the riparian ecosystem or
riparian wetlands, then mitigation shall be required.
2. Granting of the permit shall be consistent with the purposes of
this chapter, the borough comprehensive plan, other
applicable chapters of the borough code, and other applicable
planning documents adopted by the borough;
3. The development of the use or structure shall not physically
damage the adjoining property;
4. The proposed use or structure is water -dependent or does not
expand the surface area footprint of the structure or use in the
habitat protection district.
5. Applicant or owner's compliance with other borough permits
and ordinance requirements.
6. If the use or structure expands the applicant's surface area
footprint within the habitat protection district then mitigation
offsets shall be required.
D. General Conditions. The planning commission may impose permit
conditions that it finds are necessary to meet the standards under this
section and establish such conditions on the commercial activity, use
or structure, for which the permit is granted as it determines necessary
to prevent erosion, sedimentation, ground or surface water pollution, or
damage to the habitat protection district, riparian wetlands, or riparian
ecosystems. The planning commission may require the performance of
mitigation activities to offset impacts that the planning commission
finds may occur as a result of the proposed project or activity.
E. Prohibited Activities. A commercial activity, use or structure, that is not
permitted under this section and does not gualifv for prior existing
status under KPB 21.18.090 is prohibited.
F. Application procedure. Applicants must complete the application and
Day any applicable filing fee(s) to the river center on a form provided
by the river center and receive planning commission approval prior to
commencement of the project. An applicant's failure to abide by the
terms and conditions of the planning commission's resolution
approving the permit is arounds for revocation of the permit and
removal of all non-compliant uses or structures.
DocuSign Envelope ID: 9E020A0B-B8B5-4B1 D-AA10-6CC634137FA8E
Page 4 of 4
January 14, 2021
To: Anadromous Waters Habitat Protection Work Group
RE: Commercial Activities (KPB 21.18.072) Repeal & Replace
[THE PLANNING COMMISSION MAY ISSUE A PERMIT FOR ACTIVITIES TO BE
CONDUCTED WITHIN OR USING THE HABITAT PROTECTION AREA AS PROVIDED IN
THIS SECTION. PERMITS ARE REQUIRED FOR COMMERCIAL ACTIVITIES OF THE SAME
NATURE AS THOSE ALLOWED UNDER KPB 21.18.065 FOR PRIVATE NON-
COMMERCIAL USE UPON CONDITIONS THAT THE ACTIVITY IS LIMITED TO
PEDESTRIAN USE OVER BOARDWALKS, STAIR AND DOCKS NECESSARY TO
ALLEVIATE THE INCREASED LEVELS OF ACTIVITY ATTENDANT TO THE COMMERCIAL
ACTIVITY. A PERMIT MAY NOT BE ISSUED UNLESS THE PLANNING COMMISSION
DETERMINES THE ACTIVITY WILL BE CONDUCTED IN A MANNER THAT DOES NOT
RESULT IN SIGNIFICANT EROSION, SEDIMENTATION, DAMAGE TO THE HABITAT
PROTECTION DISTRICT, AN INCREASE IN GROUND OR SURFACE WATER
POLLUTION, AND DAMAGE TO RIPARIAN WETLANDS AND RIPARIAN ECOSYSTEMS.
IN GRANTING A PERMIT, THE PLANNING COMMISSION MAY ESTABLISH SUCH
CONDITIONS ON THE DEVELOPMENT, USE OR OPERATION OF THE ACTIVITY OR
FACILITY FOR WHICH THE CONDITIONAL USE PERMIT IS GRANTED AS IT DETERMINES
NECESSARY TO PREVENT SIGNIFICANT EROSION, SEDIMENTATION, DAMAGE TO
THE HABITAT PROTECTION DISTRICT, AN INCREASE IN GROUND OR SURFACE
WATER POLLUTION, AND DAMAGE TO RIPARIAN WETLANDS AND RIPARIAN
ECOSYSTEMS. THE ACTIVITY MUST BE CONDUCTED ON A PORTION OF PROPERTY
ADJACENT TO THE PROPERTY WITHIN THE HABITAT PROTECTION AREA FOR WHICH
THE PERMIT IS SOUGHT.]