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HomeMy WebLinkAbout1985-01-09 P&Z MinutesKENAI PLANNING & ZONING COMMISSION January 9. 1985 Kenai City Nall AGENDA 1. ROLL CALL a. Election of Chairman b. Election of Uice Chairman 2. APP ROVAL OF AGENDA 3. PERSONS PRESENT 5CHEDULED TO BE HEARD a. John Williams - Proposed Rezone of Lots 1 & 16, BIk 3, Kenai Townsite 4. PUBLIC HEARINGS I a. PZ85-4: Variance for 150' Minimum Setback Requirement -Tract A-4, Sprucewood Glen S!D ~E2 - Lowry/Partee b. PZ84-96 Amended: Amend Kenai Zoning Code to Establish RR1 & RS1 Zoning Districts c. PZ85-5: Rezone Richka Creek S/D from C to RS 5. APPROVAL OF MINUTES of October 10, 1984 6. OLD BUSINESS a. Conditional Use Permit Extension for Day Care - Sheeran b. Community Center Committee Resolution 84-2 c. Mobile Home Ordinance Revisions d. Landscape Ordinance/Review Committee 7. NEW BUSINESS a. Lease Application: Tracts B-1 & B-2, CIIAP S/D #4 -Retail Mall John W. Howard PLANNING COMMISSION AGENDA January 9. 1985 Page 2~ b. Nome Occupation: Bed & Breakfast - lot 1, Blk 4, Inlet View S/D - Irene Fandel c. Vacation of 66' ROW on south boundary of Toveson S/D - Luebke, Haberthur, Tovsen d. Preliminary Plat PZ85-2: Resub Tract A, Evergreen S/D e. Preliminary Plat PZ85-3: Replat Lots 5&6, Blk 7, Lot 1, Blk 8, Kenai Original Townsite 8. PLANNING a. PZ85-1: Establishing Project Goals for 1985 9. REPORTS a. City Council b. Borough Planning c. City Administration Commission Member for "Selection Committee" for City Comprehensive Plan Consultant 10. PERSONS PRESENT NOT SCHEDULED TO BE HEARD 11. INFORMATION ITEMS Revision of Planning & Zoning Commission Duties & Powers (KMC14.05.020) Council Agenda 12. COMMISSION COMMENTS & QUESTIONS 13. ADJOURNMENT KENAI PLANNING & ZONING COMMISSION Januarv 10. 1985 Kenai Citv Hall lee Lewis, Chairman 1. ROLL CALL Present: Lewis, Bryson, Oleson, Osborne, Smalley, Zubeck Absent: Carignan - Excused a. Election of Chairman NOMINATION: Commissioner Smalley nominates Lee Lewis, seconded by Commissioner Bryson MOTION: Commissioner Osborne moved that nominations be closed, seconded by Commissioner Smalley Nominations are closed - Lee Lewis elected Chairman by unanimous consent ~ b. Election of Vice Chair NOMINATION: Commissioner Osborne nominates Hal Smalley, seconded by Commissioner Oleson MOTION: Commissioner Bryson moved that nominations be closed, seconded by Commissioner Zubeck Nominations are closed - Hal Smalley elected Vice Chair by unanimous consent 2. APPROVAL OF AGENDA Agenda approved as submitted 3. PERSONS PRESENT SCHEDULED TO BE HEARD a. Proposed Rezone of Lots 1&16, Blk 3, Kenai Townsite - John Williams Mr. John Williams explained that he, as a realtor has been approached by numerous persons interested in setting up their business in the vicinity of the described property and that he himself is interested PLANNING COMMIS5ION January 9, 1985 Page 2 in purchasing the lots described. He has built his own realty office close by which is allowed in the present zone, and what Mr. Williams has came before the Commission for is a general opinion of rezoning the lots described from UR to CG. Mr. Williams further explained that the general development currently is tending to the CG classification. Chairman Lewis asked if this would not be a case of spot zoning or is it contiguous to the area. Mr. Williams felt that businesses already operating in the area have created enough traffic that it has apparently lost its residential character.. The lots in the area are substandard far general development and in order to develop, a purchaser would have to buy several lots to meet zoning requirements for development. Commissioner Bryson stated that he is generally supportive, and that he is a part owner of one of the lots in question. The CG zoning would reflect the nature of the neighborhood. ~~a Jeff Labahn stated that the immediate obstacle would appear that since it is not located adjacent to an already existing CG would make it clearly spot zoning. The code requires that if it is not an enlarge- ment of an existing zone or if it is under one acre it would not be considered. More appropriate might be the conditional use approach, or, with the RFP approaching, wait for the overview of the entire area. The Commission reached a consensus that the entire area needed to be considered. Mr. Williams volunteered to approach the owners in the area to abtain a consensus of opinion for development. 4. PUBLTC HEARINGS a. PZ85-4: Variance for 150' Minimum Setback Requirement - Tract A-4 Sprucewood Glen S/D #2 - LowrylPartee Chairman Lewis opened the meeting to the public. Edwin Lowry, part owner of the property explained that this is one of the satelite sites that needs to be set closer to the highway to obtain maximum use of the property. The property line now is 130' from the centerline of the highway. Mr. Lowry cited businesses along Frontage Rd which are set closer than the 150'. Chairman Lewis asked if this site plan involves a change from the original concept shown the Commission, answer yes, the building is almost identically the same size but is set 20' back from the front line. By using that 20' strip, the building size will be increased. The parking layout will not be changed. ~ Chairman Lewis read for the record, comments from Mr. Ron Malston which indicated that footings had been poured earlier in the year. Mr. Malston objected to the variance and went on to state that there <~ PLANNING COMMISSION January 9, 1985 Page 3 should be a survey done before any construction is allowed to commence and hopes that the Commissions denial of this request will prompt developers and contractors to proceed more carefully in both the planning and construction phase of development. Chairman Lewis closed the public hearing and turned discussion to the Commissioners. Commissioner Smalley asked if a variance could be granted after the fact, answer from Jeff Labahn was that it should not be and the question has been before the Commission before. In this case, footings are not a completed structure which is a minor improvement and is cause for concern. A building permit has been issued by the Inspector and while he does a footing inspection, he is not required varify the setback. The permit is issued with the setbacks required printed on it. Mr. Lowry stated that "we didn't mention there were any improvements there and certain not an after-the-fact, there is less than $800 in footings that are within the easement. It was our full intention to get a variance before we proceeded with the building otherwise, since we have the building permit, if we wanted to build and not ask your permission we would have already done that. We're here in good faith to do this, we're not talking economic distress." Jeff Labahn asked if a survey was done, and on what is the assumption based that you are into the setback, answer by using the corner stakes and taping. Addressing the three criteria, Commissioner Bryson stated that he feels there are no exceptional physical circumstances that apply to this property that would make approval of the variance appropriate. The strict applications would make hardships to the applicant, and this would not be detrimental to the public. "I think if the purpose of a variance is to approve a situation before it occurs, and this in fact has occurred. Jeff Labahn stated that basically, the developer of the property has proceeded at his own risk and the owner will have to bare the results of the decision. Commissioner Bryson, addressing item b stated, "is predicated upon the applicant having made no overt action that would have caused damage to himself and the damage that is being petition is caused by himself." Ed Lowry stated that we can't build the size of the building we want because we are bordered by the mall site. "As far as any hardship, that was done at our own risk." Commissioner Oleson asked if Mr. Lowry had an original building plan for this site before moving ahead with the mall, answer, no. "We planned the mall site to accommodate any type of building and parking. Originally, the site was to have a 4800 sq ft building. Mr. Lowry referred to other variances granted for setbacks on the Spur Highway near Wildwood Dr. Commissioner Bryson stated that while they have been granted but usually before the ~~ PLANNING COMMISSION January 9, 1985 Page 4 fact taking into account the development in the area. Jef Labahn agreed stating each variance must be considered on an individual, case by case basis. MOTION: Commissioner Smalley moved approval of PZ85-4 granting the variance for Tract A4 Sprucewood Glen to Lowry/Partee, seconded by Commissioner Osborne. DOTE: Motion failed with Commissioners Bryson, Oleson, Osborne, and Smalley voting no; Chairman Lewis and Commissioners Zubeck voting yes. To clarify vote, Commissioner Smalley stated "that 'exceptional physical circumstances' are nat met since when the land was first leased and then sold, Mr. Lowry had a building design. Things keep changing and changing, coming back, and now the building is expanded. This falls into his responsibility. Item b is nat met because the unnecessary hardship is created by himself." Commissioner Oleson and Commissioner Osborne agreed, Commissioner Bryson's was on item a. ~ b. PZ84-96 Amended: Amend Kenai Zoning Code to Establish RR1 & RSl Zone Chairman Lewis opened comments to the public. A member of the audience stated that Mr. Rick Baldwin was on his way from Anchorage to address the item. Since there were no further comments and there were members of the public in attendance requesting a delay until Mr. Baldwin could be in attendance, Chairman Lewis called a recess. Mr. Baldwin still not in attendance, the Commission will go on with the next item and come back to 'b'. c. PZ85-5: Rezone Richka Creek S/D from C to RS Chairman Lewis opened the meeting to the public. Tom Boedeker, adjacent property owner came forward to request the rezoning be disapproved. "In examining the property it is quite clear that it is unsuitable for anything more than a single family residence. From previous discussion it is noted that there is no single family zone in Kenai. The lot size would be such that a 6-plex could be constructed and would be inappropriate. The builder that built my home did some damage to the bluff overlooking the ravene. Its taken nearly Z summers to begin to rectify the damage that has ~ been done to that slope. If you allow any kind of density your going to have damage to the slope adjacent to this property also... There is PLANNING COMMISSION January 9, 1985 Page 5 a reason that the land is zoned conservation, it is conservation under the land use plan, and I think this Commission should look very hard at a situation before they recommend rezoning against the Land Use classification. The nature of the ravene is such that it should not be a prime development property and I think you should deny the rezone request. Father Targonsky came forward and stated that the church is a property owner in the vicinity and that they are also against the rezoning. "We don't want to see that much development, they should develop other areas, we want to see it left conservation. It would be an asset to the church, there are apartments behind the church now and it detracts from a historical landmark on the Kenai Peninsula." Verla Jones, adjacent property owner, requests that it be disapproved. Mrs. Jones lives on the edge of the ravene. While they did not build the house, Mrs. Jones feels it should not have been built so close. This area is used extensively by children in the neighborhood. In the summer time the whole ravene is used as a giant playground and wants to see it kept that way. Jack Sipperly, adjacent property owner would like to see the rezoning go through. There is a 25' setback from the top of the gully which would alleviate any erosion or damage to that area, we have a good conservation area and I agree we should keep it where the creek goes through. Alan Jones, an adjacent property owner, objects to the rezoning stating that it is not compatible to the area and the land use plan. It would have an undesirable impact upon the adjacent property. There being no further comments, Chairman Lewis brought discussion back to the Commission. Commissioner Smalley stated that when this property came up before, a few of the Commissioners objections were to the fact that it did not seem to be in compliance with the land use plan, that as a conservation zone there was perhaps Future use for recreation, not necessarily 10 years down the road but 15 or 20 as Kenai grows. Commissioner Bryson suggested, hypothetically the lot were rezoned to RS1, Jeff Labahn answered that assuming the lot were still City, it would be limited to no more than a duplex. Commissioner Smalley stated that, after listening to the general consensus of the speakers, they have voiced concern over the density, the numbers of buildings, and so on, it would appear that an RS1 would be appropriate if it should ever come about. -~ PLANNING COMMISSION January 9, 1965 Page 6 Tom Boedeker stated that at the present time the lat is one lot but its size would allow it to be subdivided into several lots, each of which could support a duplex or more. Jeff Labahn answered that due to configuration it probably couldn't be subdivided down to more than 2 lots. Tom Boedeker asked if the lot was conveyed to someone else in the existing zoning classification the City would not have any control over rezoning, it would be the owner of the lot, answer yes. Council- man Wise suggested a deed restriction be filed with the plat stating that it not be subdivided and/or the number of families. Chairman Lewis asked Father Targonsky if he was aware of the location of this rezoning, answer yes. Commissioner Bryson explained that the lot in question is about a half mile from the church referenced. MOTION: Commissioner Smalley moved approval of PZ65-5: rezone Lot 11A, Richka Creek S/D from C to RS with covenents limiting any subdivision of said parcel of property and limiting any construction on the property to single family or single duplex, seconded by Commissioner Zubeck. Commissioner Smalley stated that his reason for the limits would be to meet the concerns of those adjacent property owners. For the record, Commissioner Bryson stated that if we were starting from ground zero I would be opposed as I was before to the rezoning of this lot out of conservation, but the question is out of our hands. The Commission further discussed development of the property. MOTION AMENDMENT: Commissioner Bryson moved to amend the original motion to allow subdivision of the property in accordance with the RS zone but maintain the structural restrictions of the original motion, seconded by Commissioner Smalley. VOTE AMENDMENT: Motion passed unanimously. VOTE MAIN MOTION: Motion passed with Chairman Lewis and Commissioners Bryson, Oleson, Osborne, and Smalley voting yes; Commissioner Zubeck voting no. NOTE: Mr. Baldwin has returned and discussion returns to item 4-b. Mrs. Joan Buzzell came forward and asked many questions for clarification and upon some answers from the Commission, stated that she is in favor of the proposal. Raymond Rogers, a resident on Cinderella Street, states that he is in - favor of the resolution with the exception of the size of the lot. Specifically the 7200 sq ft. In his area the water table is so high ~~ PLANNING COMMISSION January 9, 1985 Page 7 that a lot that small would be unfeasible to build on. A 12,000 sq ft lot would still be a small lot, but would be better and suggests there be an addition to the resolution pertaining to this 12,000 sq ft size. Chairman Lewis corrected the footage to 12,500 sq ft. Mr. Rogers stated that as far as the restrictions on the number of dwellings, everyone agrees this is desirable. Jeff Labahn suggested proposed an RS2 designation which would have the exact same language as RS1 but instead of 12,500 sq ft with water & sewer, 7200 sq ft with water & sewer. The Commission agreed and the land manager will amend the resolution. Mr. Rick Baldwin came forward and complimented the Commission on the work that was done on the resolution. Mr. Baldwin agreed with the suggestion of adding the third designation of R52. Chairman Lewis stated that the Commission is in agreement with his original concept. MOTION: Commissioner Smalley moved "approval of PZ84-96 Amended: Amending the Kenai Zoning Code to provide for 1 & Z family residential areas consisting of an RR1, RS1, and RS2, with the RS2 district spelled out as: minimum lot area 7200 sq ft with public water and/or sewer 20,000 1 sq. ft. limited to single family or duplex; minimum yard front of 25ft, side 5ft, rear 20ft, the lot width of 60 ft, maximum lot coverage of 30°0, maximum height 35ft", seconded by Commissioner Oleson. NOTE: As this was a lengthy motion, it was taken verbatim from the tape VOTE: Motion passed unanimously. 5. APPROVAL OF MINUTES of December 12, 1984. Minutes were approved as submitted. 6. OLD BUSINESS a. Conditional Use Permit Extension for Day Care - Sheeran Candace Sheeran came forward and explained that she is requesting the extension due to impending funding from the state legislature, the time of which is indefinite. Ms. Sheeran stated that the present location is no problem, she could remain at this location indefinitly. Ms. Sheeran has one additional teacher. ~~ PLANNING COMMISSION January 9, 1985 Page 8 MOTION: Commissioner Smalley moved approval of the extension of the conditional use permit for a period of one year from the expiration date of February 22, 1485 keeping the existing restrictions in the original permit, seconded by Commissioner Osborne. VOTE: Motion passed unanimously. Ms. Sheeran pointed out that one of the conditions discussed originally was that she fence the back yard for the kids to play outdoors. At the present time there is no fence, however, the kids do not play outdoors. b. Community Center Committee Resolution 84-2 The Community Center Committee asked that two resolutions be passed on to the Planning Commission, 84-1 and 84-2. MOTION: Commissioner Smalley moved supports both resolutions by Commissioner Osborne. VOTE: Motion passed unanimously. to recommend that the Planning Commission of the Community Center Committee, seconded NOTE: Move item 7b to this point. b. Home Occupation: Bed & Breakfast - Lot 1, Inlet View S/D - Herman & Irene Fandel Irene Fandel came forward, handed out brochures and detailed the operation of the bed & breakfast. The occupation is entirely family operated; the bed & breakfast is featured in 3 books dealing with bed & breakfast and is accredited by them; it will be used year round; it does not occupy more than 30a of the total floor space; there are no traffic or parking problems; individual exits are provided; and no more than 5 rooms are occupied by travellers at one time. The bed & breakfast is supported by the Chamber of Commerce who send travellers to these occomodations. MOTION: Commissioner Smalley moved approval of the home occupation for the described property, seconded by Commissioner Bryson. VOTE: Motion passed unanimously. -~ PLANNING COMMISSION January 9, 1985 Page 9 c. Mobile Home Ordinance Revisions It was the consensus of the Commission that public hearing be set for the revisions for the next meeting, January 23rd. d. Landscape Ordinance/Review Committee Jeff Labahn explained that some issues need to be resolved before moving ahead. The issues are outlined in his memo as I through IV. The Commission discussed each issue adding one more and set a work session to be held with the Council at their convenience. A suggestion has been made for a committee which would review not only landscaping but site plans. 7. NEW BUSINESS a. Lease Application: Tracts B-1 & B-2, CIIAP S/D ~4 - Retail Mall - John W. Howard Jeff Labahn explained that the lease had expired and the code requires that in order to retain the lease, the applicant needs to go through the same application procedures. Nothing has changed on the application and site plan except the schedule for construction and completion. MOTION: Commissioner Bryson moved approval of the lease application as described with the inclusion of landscaping details, seconded by Commissioner Oleson. DOTE: Motion passed unanimously. c, Vacation of 66' ROW on south boundary of Toveson S/D - Luebke, Haberthur, Toveson It was noted that the street names were wrong, Davidson Drive should be to the west of the lots and the present Davidson should be Highbush. Concurrently, no part of the Davidson Drive ROW be vacated. The purpose of the vacation is to allow for more efficient development of the properties adjacent. MOTION: Commissioner Smalley moved approval of the subject vacation with the inclusion of corrections, seconded by Commissioner Osborne. PLANNING COMMISSION January 9, 1985 Page 10 d. Preliminary Plat PZ85-2: Resub Tract A-1, Evergreen S/D This tract was prepared at the direction of the City Council as it is to be disposed of. MOTION: Commissioner Smalley moved approval of PZ85-2, seconded by Commissioner Osborne. VOTE: Motion passed unanimously. e. Preliminary Plat PZ85-3: Replat Lots 5&6, Blk 7, Lot 1, Blk 8, Kenai Original Townsite This plat vacates portions of two dedicated ROW's and combines two lots into one. The Commission recognized that a access to the beach would be lost and felt a 10' public access be created in the portion that would be Westward Street to provide the public pedestrian access. MOTION: 1 Commissioner Smalley moved approval of PZ85-3 including the 10' pedestrian access easement, seconded by Commissioner Osborne. VOTE: Motion passed unanimously. 8. PLANNING a. PZ85-1: Establishing Project Goals for 1985 The Commission reviewed the revised resolution. MOTION: Commissioner Osborne moved to approve PZ85-1, seconded by Commissioner Smalley, VOTE: Motion passed unanimously. 9. REPORTS a. City Council Councilman Wise reported that Marathon Road had been relocated to enter onto the Spur Nighway. This alternative proved to be the least costly. PLANNING COMMISSION January 9, 1985 Page 11 The Council reached an agreement with Mr. Paxton and Mr. Church on the construction of the bowling alley. The first phase should be completed by May 1st with the facade completed by October 1st. b. Borough Planning Commissioner Bryson was unable to attend. c. City Administration Jeff Labahn and Commissioner Osborne met with representatives from the state regarding the Kenai River Management. A Commissioner needs to be appointed or volunteer for the selection committee which deals with the comprehensive plan project. Commissioner Carignan was selected. 10. PERSONS PRESENT NOT SCHEDULED TO BE HEARD None 11. INFORMATION ITEMS No comments 12. COMMISSION COMMENTS & QUESTIONS None 13. ADJOURNMENT There being no further business, the meeting was adjourned at 11:05 p.m. The next meeting will be January 23, 1985. Janet Loper Secretary PLANNING & ZONING COMMISSION ~~ ~ ~ 12_1 Call O~'~ ~ ~ ~ E r~r ~ V~ / p ~ Chairman Lee Lewis ( ~1 \I `( I ~ ~ ~ `~ ~1 111 -Phil Bryson ~ ~ ~ \ ~ ~~, 1~" v Richard Carrignon Bob Oleson ~ \ '~ Ozzie Osborne ___._ ~ ~ ~ ~` ,I `~ I ~ 1 Hal Smalley ~ ~ \ 1 ~ ~ ~ ~ ~ Bill Zubek 1 v ~ ~ ~, 1 \, ~~® TO DO cl~ ~~ r% ~ ~~~ ~~~~~~ r ~~~~ t. Verbatim of Planning Commission Meeting January 9, 1985 Requested for Board of Adjustment 4-a PZ85-4: Variance for 150' Minimum Setback Requirement - Tract A-4, Sprucewood Glen. S/D 4~2 - Lowry/Partee Lewis - We have three public hearings scheduled for tonight. First public hearing, a, PZ85-4. Mr. Lowry are you, its open to the public at this time and perhaps it would be appropriate for you to present your case. Lowry - What we're trying to do here is get a little bit closer to the highway on the mall site with a building. Since this is one of the satellite sites its to our advantage to push it closer to the highway since that will allow for the parking for the back and if we have to stay 20' back from that line that basically that whole 20' is just lost on that lot. The ah property line now is 130' from the ah centerline of the highway which seems to be um adequate to handle most of the things that have happened in Kenai even for example where the frontage road is put along the highway there in Kenai there`s still ah, the buildings there are between 130' and 145' back from the road centerline and ah of course on the other ~ side of the street where NBA and some of those buildings are there quite a bit closer than that. So its seems like it would accommodate any kind of growth that would happen in the future and it would allow us to basically utilize the land to best so that we can provide mare parking behind the building there. Lewis - Did the ah, did this involve a change from the original concept you presented. Lowry - The ah, the original concept showed a building that was on what is the identical same size except that the building was 20' back from the front line. This basically, I guess more appropriately what I should say is its not going to allow for more parking but is going to allow for more building on the land by using that 20' strip. In other words the parking layout or nothin' changes. Lewis - Its going to be a bigger building is what you're saying. Lowry - Yea, the building is just 20' further towards the highway, the back of the building is still in the same location as it was before. A parking layout is identical. Ya we didn't want to do anything to that parking layout. Board of Adjustment ~~ Planning Commission Verbatim January 9, 1985 Page 2 Lewis - Ed would you clarify again the position of the parking. The way I look at the diagram here, you envision the parking in the back of the building, right? Lowry -Yea, are you looking at the plot plan or the site plan. Lewis - Plot plan, yes. Lowry - OK. Right, that's correct, the one on the one side and at the back. Lewis - OK so all all the parking is behind it, Lowry - yes Lewis - and originally you envisioned some parking in front of it right. Lowry - No, on the original, course I think you've got it, a mall site plan there. Apparently I don't have a mall site plan with me, but the ah, what we had before was just basically a dedicated area where we could ah, use it for a travel way around the building that would be 20' wide and that meant ~ it's set 20' back from the, from the front line Lewis - I see Lowry - and we're wanting to expand the size of the building another 18' there and not, because we don't need a drive through on this particular unit. Lewis - At this time is there anybody else that's present that has any comments on the proposed variance request can now, now is your time, your chance to come forward and present your opinion. For the record there's a, there's a handout tonight, concerning this variance request. I'll read it into the record. 'Mr. Ron Malston phoned this date requesting information concerning the referenced topic. Mr. Malston noted that footings had already been poured earlier in the year and asked why the city had allowed an error in footage. It was Mr. Malston's wish that his objections be passed on to the Planning Commission and that it is his request that the variance be denied. Mr. Malston states that there should be a requirement that a survey be done before any construction be done whatsoever is allowed to commence and hopes that the Commission's denial of this variance will prompt developers and contractors to proceed more carefully in both planning stages of development and construction phases as well'. The call was taken by Janet Loper our secretary. There are no comments from the public at the present time. If not the matter is brought back to the Commission, the public hearing is closed. Board of Adjustment Planning Commission Verbatim January 9, 1985 Page 3 Smalley - Jeff, I have a question for you, we can't grant a variance after the fact is that not true. Labahn - Properly there should be no variance granted in an after-the-fact format, again this is something we've encountered a couple of times since I've been here and I know the problem has cropped up before by this Commission. My, my main concern is that, you know we're dealing with a situation where there is ah, some improvements already on the property, we're not talking about a fully completed structure, we're just talking about footings, a fairly minor improvement. But, ah, you know, construction has, has commenced on on the project and that that is cause for concern. There was, to clarify some of the, some of the comments that were made I think by Mr. Malston, it was, the building permit that was issued in the fall by the building inspector in the fall of '84, and the building official did do a footing inspection on the property so the individual property owner does have a building permit however the problem becomes a question of not adhering to the required 150' setback from the centerline. Its a general commercial zone so there's no setbacks, building setbacks from the lot lines other than any other additional requirements that that would, you know, that would affect the property and the one requirement affecting the property would be the 150' setback from the centerline of a primary federal aid highway, which the Kenai Spur is, is is one of the those so classified. So what we're dealing with is not, a a setback required in this particular zone but a requirement that all structures and improvements be setback a certain distance from the centerline of a given classified roadway. So that's, that's, the situation that's, that is before you. What this really does, is it highlights the problem that the Commission has encountered specially last year of, of improvements being put in in violation of a setback or some other requirement and then the owner developer coming to this Commission for relief of that requirement after the fact. This is really, this is really a very similar situation, I, T don`t know, Ed was there, was there a survey done, Lowry - Inaudible Lewis - OK Lowry - I don't believe that we even mentioned that there's any improvements there and certainly not in our mind an after-the-fact situation whatsoever. There's less than $800 worth of footings that are within the easement. It was our full intention that we would get a variance before we would proceed with the building, that's why we're here before you now, otherwise, we've got the building permit and if we wanted to build and not ask your permission we'd already done that, we're here in good faith to do this we're not talking economic distress or anything that sort. You know if if what we want to do is stop this thing here, then we'1 stop it here and we'1 go 20' setback and we'1 do something else with the Board of Adjustment Planning Commission Verbatim January 9,1985 Page 4 lot, what we want to do is do what we presented here, this isn't our case at all, its never been mentioned before this time and we certainly didn't bring it up. Labahn - Ed I've got a question, has has there been a survey done on the footings, you know you've indicated here you're 2' off the property line is that based on a survey that was done of those footings or Lowry - well the Labahn - I guess I'm asking how do you know your 2' as opposed to 3' or Lowry - OK the lot's surveyed the corner stakes are less than 20' away, we crossed taped it, it's not a, there's no problem there. Labahn - OK its its based on an estimate done from the lot corners. Lowry - Right, right Labahn - I'm just trying to get to how you know where you are on on the lot without a survey Lowry - sure Labahn - OK Smalley - Jeff, again as you mentioned this is something thats been echoing and bouncing around these walls since I've been on the Commission, and its the responsibility of the builder/contractor for the placement of the building on the property and we keep coming back to these problems and I don't know the best way to end it Labahn - I think, I think in this case, the way that the Commission needs to approach this is to look at the the three criteria that you have in granting a variance. That that has that has to be the criteria that need to be used in. According Bryson(?) - No Labahn - to what the petitioner is saying is that you know they've only made a minor improvement to the property putting the footings in, ah, and ah, what they're asking the Commission for is if if they have the, basically if they have the authority to go forward and to continue in that same location. What the Commission needs to do is take a look at the three criteria that are on the application, listed on the application form that is in the packet or you can refer to it in your zoning zoning code, they're number 4 on the application which is the resolution before you. 4-a,b, and Board of Adjustment Planning Commission Verbatim January 9, 1985 Page 5 c define what the criteria are and these are the things that the Commission has to evaluate to determine whether or not to grant the variance. Lewis - Right, I don't think we should consider whether or not there's any improvements there or not Labahn - You know we still Lewis - that has nothing to do with it Labahn - Its its a side issue that we still need to address but in this particular case we need to look at those three criteria, ah, and look at them one by one and make determination on the granting or denial of the variance based on those three criteria. Lewis - Commissioners what`s your opinion. You want to voice an opinion on how the these criteria apply to the ah, to the request (rest inaudible) Bryson - Addressing the three items one by one, it would be my opinion that there are no exceptional physical circumstances, that ah, particularly apply to this property, that ah, make approval of this ah, variance appropriate, ah, I do feel that b, the strict application would result in hardships to the applicant and ah, and that also c, of, this would, not be detrimental to the public health and welfare. Lewis - So you feel, lets see if I understand what you, on the three criteria you feel that, ah, the first criteria would not justify it, second and third criteria would perhaps. Is that what you said? Bryson - yes, also, not, I feel if we're ah, if the purpose of a variance is to approve a situation before it occurs, I think this in fact has occurred and that the awarding the variance Lewis - I don't think we should even consider that it has occurred because Bryson - Well, thats, thats Lewis - Ed said that its minor what, you know, $800 worth of expenditures Smalley - But the point is that it has occurred. It is, its there, it exists, I mean true, it maybe has very little value, but it does exist, its there. You know that should have been the responsibility of the builder/ contractor Labahn - Mr. Chairman to clarify that point, I, really what needs to be considered is the developer of the property, basically proceeded at his own ~ risk to do what he's done and and that is, um, that's really a side point, Board of Adjustment Planning Commission Verbatim January 9, 1985 Page 6 the Commission needs to render a decision based on .these three items, and ah, the owner of the property is just going to have to ah, you know, bear the ah, bear the results of that decision. That's that's where we're at. Smalley - Mr. Chairman, in going over the criteria again I would agree that there are no exceptional physical circumstances, and I'm not too sure that item b, that the strict application would ah, bring about an unnecessary hardship, the applicant himself has indicated that its no biggie, you know they would like to have it but, you know, its not that big a deal. Again I'm not too sure there is an unnecessary hardship although item c, that could again, you know qualify, as far as would not result in material damage to other property in the vicinity. Bryson - It would seem to me that item b is predicated upon the applicant having made no overt action that would have caused damage to himself. In ah, the damage that that is being petition is the one that was caused by himself. Lewis - Yes Ed Lowry - Just Like to make a little bit more clear why why we do think that it fits all three criteria, the first criteria that it ah, that it ah, is an unusual characteristic is simply by the lot size, we're bounded by the borders of the lot. We cannot build the building the size that we want without going into the parking area, changing the mall site parking area or by reducing the size of the building by 20°0. It would create a hardship in that we couldn't use that land to have the building 20~ larger, it would mean that we'd have to build a 4800 square foot building versus a 6500 square foot building. And there's effectively 200 loss of the land utilization if we do that, that would be the hardship. As far as any hardship thats created by what is already existing there, there's not, you know that was done at our own risk and we are here to get a variance prior to doing anything. That's how I see that we meet the criteria. Lewis -Thank you. Any further comments? From Commissioners. Oleson - I'd like to address Mr. Lowry. Did you have an original building plan for this site. Lowry - An original building plan? Oleson - Yes, I guess what I'm trying to say is did you have a building in mind when you started this Lowry - Oh, the mall site? We basically planned the mall site to accommodate any type of building where the rear 20' of it wouldn't be ~ blocked so that there'd be access to parking on the mall side and I believe 10' along the side needed to be dedicated to parking also, and the rest of the lot would be used however and whatever manner, shape, it was, I think Board of Adjustment "~ Planning Commission Verbatim January 9, 1985 Page 7 it was originally proposed to be ah, well it was originally proposed to be 4800 square foot building where there'd be a drive through area along the front, that's how it would be utilized. Oleson - The original concept then was the 4800 square foot building and Lowry - That's correct Oleson - and now you want to make a larger one. Lowry - That's correct. There's a, if I'm not mistaken the Commission approved several exceptions to this particular rule on a federal highway setback last year out in a, the Wildwood vicinity where there were encroachments as far as 75' or 90' into that setback. Bryson - Seems like ah, Mr. Lowry's right in that there have, quite common to petition variances to ah, to the setbacks, usually there, they have been done before the fact in most cases, and also its taken into account what the development in the area, that's ah being considered. There are areas where buildings are, probably arn't 50' from centerline of the highway. This is an area that presumably unnecessary. Lewis - I think it has to be acknowledged we have ah, we have granted certain variance requests in other parts, you know, from the centerline. I think the most recent one was the brake shop or transmission shop, whatever it is out on Bryson - The ah, the building permit application, go through this one mare time, where did it indicate the footings Jeff. Labahn - As far as far as the ah, the building permit itself? Bryson - Yea Labahn - The only thing that I'm aware of in talking with the building inspector is that a permit was issued for that and that an inspection was done and ah, ah basically I don't believe at that point that there was anything anything indicated on the on the lot. Smalley - But that wouldn't be Howard's responsibility to actually place Labahn - No, and we've discussed this before, it sure isn't incumbent on the building inspector to to to varify the location of the improvements on a lot in this case the ah, the developer is basically telling us where he feels the the footings are, approximately 2` from the lot line. That building permit is issued with notations as far as the building setback requirements (inaudible) that would include this property. Board of Adjustment Planning Commission Verbatim January 9, 1985 Page 8 Lewis - Its not verifying that it does fit the Labahn - That's that's correct Lewis - called for Labahn - Mr. Chairman, also as a point of clarification just before the vote just so everyone understands, ah, the procedure, ah, an affirmative vote by any Commissioner would recognize that all three of the criteria, all three of these criteria have been met, and a negative vote would indicate that one or more of the criteria have not been satisfied in the mind of each Commissioner. Smalley - Mr. Chairman I move for approval of resolution PZ85-4 ah, granting the variance ah, tracts A-4 Sprucewood Glen subdivision number 2 to Edwin Lowry and Tammy Partee. Side 2 Tape Lewis - .... the question. If not take the question. Secretary - Lewis (yes) Bryson (no} Oleson (no) Osborne (no) Smalley (no) Zubeck (yes) Lewis - the variance request is denied. Labahn - Mr. Chairman two comments, number one if the Commission should go on record basically indicating which of those criteria they find not being satisfied in their decision and the second comment that I want to make that under the kenai municipal code there is an avenue of appeal of that decision to the kenai city council. Smalley - Mr. Chairman, I, I am convinced to me the exception a, exceptional physical circumstances are not met. Originally when the land was first leased and then purchased Mr. Lowry had intended a building design. Things keep changing keep changing and coming back and now it goes from 48 to 65. The circumstances are basically his responsibility (?) - OK Smalley - and item b, agaih I don't believe its met because of unnecessary hardship is that which has been created by himself. I I don't believe a and b are met, item c yes but not a and b. For those reasons I voted against it. Lewis - Anyone else wish to explain their vote ~ Oleson - That's primarily why I voted no Board of Adjustment ~~ Planning Commission Verbatim January 9, 1985 Page 9 Lewis - The same ah Oleson - yes the same reasons Lewis - Ozzie you agree? Osborne - I agree Bryson - Mine was basically on item a, it did not meet item a. Lewis - All right. Go to the next public hearing.