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HomeMy WebLinkAbout2004-10-13 Planning & Zoning MinutesCITY OF KENAI PLANNING & ZONING COMMISSION AGENDA CITY COUNCIL CHAMBERS October 13, 2004 - 7:00 p.m. 1. CALL TO ORDER: a. Roll Call b. Agenda Approval c. Consent Agenda *All items listed with an asterisk (*) are considered to be routine and non-controversial by the Commission and will be approved by one motion. There will be no separate discussion of these items unless a Commission Member so requests, in which case the item will be removed from the Consent Agenda and considered in its normal sequence on the agenda as part of the General Orders. 2. *APPROVAL OF MINUTES: a. September 22, 2004 b. 'September 22, 2004 -Work Session 3. SCHEDULED PUBLIC COMMENT: 4. CONSIDERATION OF PLATS: a. PZ04-42 ~-Preliminary Plat -Redoubt Terrace Bluff View Replat. Plat submitted by Integrity Surveys, $195 Kenai Spur Highway, Kenai, Alaska. 5. PUBLIC HEARINGS: a. PZ04-30 - A resolution of the Planning and Zoning Commission of the City of Kenai, Alaska, recommending to the Council of the City of Kenai, Alaska that KMC 14.20.245 of the Kenai Zoning Code be amended by adding Section (d) (5} to prohibit parking of recreational vehicles on private property that has no principal permitted structure except as otherwise allowed under KMC 14.20.245 (e). b. PZ04-41-An application for a Conditional Use Permit for a daycare for the property known as Lot 11, Block 4, Redoubt Terrace Subdivision {1511 Fathom Drive), Kenai, Alaska. Application submitted by Sonia Tribble dba Nana's Place, 1511 Fathom Drive, Kenai, Alaska. c. PZ04-43 - An application for an Encroachment Permit for rear and side setback encroachments for the property known as Lot 1, Block 6, Redoubt Terrace Subdivision, Addition No. 3 {406 South Forest Drive), Kenai, Alaska. Application submitted by F. DeWayne and Diane E. Craig, 406 S. Forest Drive, Kenai, Alaska. d. PZ04-44 - An application for a Conditional Use Permit for condominiums for the property known as Lot 1, Block 6, Redoubt Terrace Subdivision, Addition No. 3 (406 South Farest Drive), Kenai, Alaska. Application submitted by F. DeWayne and Diane E. Craig dba Bluff View Condominium Association, 406 S. Forest Drive, Kenai, Alaska. 6. OLD BUSINESS: 7. NEW BUSINESS: a. *PZ04-45 - An application for a Home Occupation Permit for a daycare for the property known as Lot 32, Block 1 Redoubt Terrace Subdivision (1614 Tanaga Avenue), Kenai, Alaska. Application submitted by Kathryn Medcoff, 1614 Tanaga Avenue, Kenai, Alaska. b. Structure Improvements, Lot 6A, Block 1 Gusty Subdivision No. 4, 11616 Kenai Spur Highway/445 Coral Street, Leased by Pingo Properties, Inc. and Geoffrey M, Graves. Review/ Recommendation S. PENDING ITEMS: 9. CODE ENFORCEMENT: 10. REPORTS: a. City Council b. Borough Planning c. Administration I1. PERSONS PRESENT NOT SCHEDULED: 12. INFORMATION ITEMS: a. Zoning Bullekin (9110104) b. November 24`h Meeting Cancellation Memo c. KPB Comprehensive Plan Update Letter dated 9/29/04 d. Ordinance No. 2071-2004 -finding that certain City-owned land, identified as Lots 1 & 2, Block 6 Mommsens SID Replat of Additions 1 & 2, located at 2402 & 2406 California Avenue in Kenai are required for Public Purpose. e. Building Permits Quarterly Report 13. COMMISSION COMMENTS & QUESTIONS: 14. ADJOURNMENT: CITY OF KENAI PLANNING 8b ZONING COMMISSION CITY COUNCIL CHAMBERS OCTOBER 13, 2004 - 7:00 P.M. CHAIRMAN CARL GLICK, PRESIDING MINUTES ITEM 1: CALL TO ORDER Chairman Glick called the meeting to order at approximately 7:03 p.m. 1-a. Roll Call Roll was confirmed as follows: Commissioners Present: J. 'Ibvait, J. Harnmelman, N. Amen, J. Barrett, C. Glick, and P. Bryson Commissioners Absent: B. Eldridge Others Present: City Clerk Freas, Council Member Ross, City Planner Kebschull and Building Official B. Springer 1-b. Agenda Approval ADD TO: Items S-c and 5-d -- Email from John and Glenda Landua requesting the applications be rejected if the record indicates ",..historical problems with compliance and non-conformance." Items 5-c and 5-d -- Chronological history of permits for 406 S. Forest Drive. Item 10-a -- Action Agenda for l0/6/04 council meeting. Item 10-b -- 10/ 11/04 KPB Plat Committee Agenda and KPB Planning Commission Meeting Agenda. MOTION: Commissioner Arnen MOVED to approve the agenda with the additional items provided and requested UNANIMOUS CONSENT. Commissioner Bryson SECONDED the motion. There were no objections. SO ORDERED. 1-c. Consent Agenda MOTION: Commissioner Barrett MOVED for approval of the consent agenda as presented and requested UNANIMOUS CONSENT. Commissioner Hammelrnan SECONDED the motion. There were no objections. SO ORDERED. ITEM 2: APPROVAL OF MINUTES Commission Meeting/September 22, 2004 -- Approved by consent agenda. Work Session/Septe=mber 22, 2004 -- Approved by consent agenda. ITEM 3: SCHEDULED PUBLIC COMMENT -- None. ITEM 4: CONSIDERATION OF PLATS 4-a. PZ04-42 -Preliminary Plat -Redoubt Terrace Bluff View Replat. Plat submitted by Integrity Surveys, 8195 Kenai Spur Highway, Kenai, Alaska. MOTION: Commissioner Bryson MOVED to approve Redoubt Terrace Bluff View Replat and Commissioner Hammelman SECONDED the motion. City Planner Kebschull referred to the staff recommendations listed on the staff report included in the packet. She noted, should the Commission recommend approval to the Borough of the replat, it should not be recorded until: • A variance for minimum lot size should be applied for and granted or the applicant should request and receive a rezone of the conservation portion of the lot to suburban residential; The parcel is developed and the plat should verify there are no encroachments; • A current as-built should be submitted to insure there are no encroachments resulting from the addition along Toyon Way. Commissioner Bryson noted a correction needing to be made in the first staff recommendation, i.e. whether it was the owner of the property who should apply for a variance for a minimum lot size or rezone. Kebschull noted the correction would be made. Bryson also noted the intention of his motion to approve was to include the staff recommendations and Commissioner Hammelman agreed. Amen asked if the Commission voted to approve the motion, that approval would be conditional on the recommendations being granted. Kebschull explained the city makes recommendations to the Borough on platting issues and typically they take into consideration city recommendations made prior to their allowing a plat to be recorded. VOTE: PLANNING & ZONING COMMISSION MEETING OCTOBER 13, 2004 PAGE 2 Twait Yes Hammelman Yes Eldrid e Absent Amen Yes Barrett Yes Glick Yes B son Yes MOTION PASSED UNANIMOUSLY. ITEM 5: PUBLIC HEARINGS 5-a. PZ04-30 -- A resolution of the Planning and Zoning Commission of the City of Kenai, Alaska, recommending to the Council of the City of Kenai, Alaska that KMC 14.20.245 of the Kenai Zoning Code be amended by adding Section (d) (5) to prohibit parking of recreational vehicles on private property that has no principal permitted structure except as otherwise allowed under KMC 14.20.245 (e). MOTION: Commissioner Hamrnelman MOVED to recommend to the Council of the City of Kenai, Alaska that KMC 14.20.245 of the Kenai Zoning Code be amended by adding Section (d) (5) to prohibit parking of recreational vehicles on private property that has no principal permitted structure except as otherwise allowed under KMC 14.20.245 (e). Commissioner Amen SECONDED the motion. Kebschull explained the requested amendment to the code is a proactive effort because more and more people are parking recreation vehicles on residential lots where there are no homes, which is not the intent of the code. There were no public comments. A numbering error in the resolution heading [(d(5) should be 'd(4)'] was noted and Kebschull stated it would be corrected. VOTE: Twait Yes Hammelman Yes Eldrid e Absent Amen Yes Barrett Yes Glick Yes B son Yes MOTION PASSED UNANIMOUSLY. 5-b. PZ04-41 -- An application fox a Conditional Use Permit for a daycare known as Lot 11, Block 4, Redoubt Terrace Subdivision (1511 Fathom Drive), Kenai, Alaska. Application submitted by Sonia Tribble dba Nana's Place, 1511 Fathom Drive, Kenai, Alaska. PLANNING & ZONING COMMISSION MEETING OCTOBER l3, 2004 PAGE 3 MOTION: Commissioner Barrett MOVED for approval of PZ04-41 with recommendations stipulated by staff and Commissioner Bryson SECONDED the motion. There were no public comments. Kebschull noted she received no comments from neighboring property owners; a stipulation was being placed on the permit stating the applicant is licensed for 12 children, including her own, and no more than five overnight including her own, per state regulations; and, the daycare conforms with state regulations at this time, including overnight care. VOTE: Twait Yes Hammelman Yes Eldrid e Absent Amen Yes Barrett Yes Glick Yes B son Yes MOTION PASSED UNANIMOUSLY. It was also noted, an appeal to a decision of the Planning & Zoning Commission must be filed, in writing within 15 days of the decision, with the Kenai City Clerk. BREAK TAKEN: 7:i5 P.M. Ito review additional information provided relating to PZ04-43) BACK TO ORDER: 7:25 P.M. 5-c. PZ04-43 -- An application for an Encroachment Permit for rear and side setback encroachments far the property known as Lot I, Block 6, Redoubt Terrace Subdivision, Addition No. 3 (406 South Forest Drive), Kenai, Alaska. Application submitted by F. DeWayne and Diane E. Craig, 406 S. Forest Drive, Kenai, Alaska. MOTION: Commissioner Hammelman MOVED to approve the encroachment permit as indicated in the staff report, including the conditions the staff has outlined. Commissioner Amen SECONDED the motion. Kebschull referred to the chronological information provided at the beginning of the meeting she assembled in response to a request from John and Glenda Landua. Public Comments: Mark Osterman, 215 Fidalgo Avenue, Suite 106. Osterman introduced himself as an attorney representing DeWayne and Diane Craig. PLANNING & ZONING COMMISSION MEETING OCTOBER 13, 2004 PAGE 4 Verbatim Bens; Osterman: I wanted to Iet you know that one of the things that happened in this particular case dealing with the encroachment comes out of litigation involving adverse possession affecting the rear of the property. Glick: Okay, before you start sir, we do have a limit of five minutes and we'll be timing you please. Osterman: Oh, I'll certainly do my best to make it known to you that the rear encroachment has been resolved because adverse possess lawsuit filed by Mr. Craig against Mr. Loftstedt, in File 3KN-03-395 ci. That case has been resolved favorably in Mr. Craig's behalf for a substantial piece of property, I think about 12,000 square feet of property, which would deal with part of these encroachments. Under the circumstances that the deeds, platting issues, and all those things have yet to come, but we have reached an agreement, a court order will be issued in this particular case. So I wanted you to know that. But, yeah, there's a problem with the side setback only -- this, it would deal with the rear setback. Glick: So, you're saying then, it will be replatted and the one setback will be taken care of that way? Osterman: Ah, yes. That's exactly what I'm saying. Glick: Okay, but there's still a problem with the other setback, is that right? Osterman: Right, with the side setback and I think that's, how many feet is that (DeWayne Craig whispering from audienceJ...yeah, and we'd ask that you approve both of them. I mean, I want you to realize that the rear setback is not an issue. The side setback, as I understand it, is two and one-half feet. We'd ask that you approve both. Glick: Any other questions of the speaker? Yes, Mr. Bryson. Bryson: You stated that the, first you initially stated that you had an adverse possession case that had been presented. Has the adjacent property owner agreed to sell the property to... Osterman: There's been an agreement to solve the case. The resolution of the case will require the issuance of a court order. So, you can say that there's been an agreement, yes, and you can say that there hasn't been necessarily an agreement, no. But, the effect of, the effect is that there will be stipulated order entered by the PLANNING & ZONING COMMISSION MEETING OCTOBER 13, 2004 PAGE 5 1 court to resolve the case. Glick: Mr. Amen. Arnen: And also a question. So, just to clarify what you mean by rear versus side of the property which 1 got confused a little bit the last time we looked at this...is this the rear of the property here at the bottom of the page. Osterman: Yes, where your green is there, yes. Amen; You define this as the rear? Osterman: That's what everybody else is defining is the rear, but I understand it was actually defined once upon a time as the front. Amen: I'm sorry. So, you're initial comments were addressing the bottom of our map which, at that time, you said was the rear of the property. Osterman: Correct. It is marked down here it says 'front lawn' on this particular survey that I have here. Amen: And, as it is marked on our... so, we're going to call that the rear of the property? Osterman: Well, it's been called the front of the property for so long, in fact it was the front of the property at the time the building was built so that there would not be a setback issue and that was back in 1982 is when that was determined... Arnen: What are you calling that line today? Osterman: The property we settled. How's that. Amen: Is it rear, side or front sir? Craig: My name is DeWayne Craig. I'm the property owner at 406 South Forest Drive. The city, the city is defining as, is defined that as the side and the rear on Dr. Bailie's side as the back. That's the way the city's looking at it and that's the way, they informed me, that that's the way they're going. You can ask Marilyn and Bob if that's correct. I think that's the way they're looking at it. It doesn't matter how I look at it, it's how the city looks at it... (inaudible} Glick: Mr. Bryson. Bryson: Yes, when I look at it either way, the rear setback is 20 feet and the side setback is 15 feet and it would appear to me to be, in either case, there's a PLANNING & ZONING COMMISSION MEETING OCTOBER 13, 2004 PAGE 6 ~~ problem. Craig: And that's why we're here, to get that taken care of, Back in 82 when I built it, Mr. Hackney, we were having trouble laying it out and he said that I could lay it out and build it that way and keep it five foot from the bluff side and I'm not sure, I thought it was 20 feet or maybe 15 feet, cause the architect, whenever I considered it a two-story place, two-story building with a daylight basement, and it's still five feet shorter than Dr. Bailie's house next door and his is a five-foot setback on the side, but he has 20 foot setback on the bluff side. Bryson: Back in that time, I remember whenever I built my house, the building inspector interpreted the situations or if the house was one story on that side of the lot, it would be treated as a one-story side setback requirement. if it was two stories there, it would require the two story and sa, if there was asingle-story garage here, it had alive-foot setback or if it was aone-story house, it was the same thing. If it was atwo-story structure, it required 15 and that certainly predates when this was constructed. Osterman: But, at the same time, if you go this October 13~ 2004 history that we just got minutes before this meeting got started and I'd indicate that I don't think it's necessarily fair that this was given to you to read before hearing when we just barely got the thing to contest some of the facts, but the facts show that the major structure that you're looking at, according to the survey, the as-built, this building was approved with these setbacks as they are right now. So, you're in essence being asked to disregard the setbacks that existed back in 19$2, even 1998, when this was published. So, if there had been inspections and determinations that had been already made by the planning department, we don't think they come back and ask you to re-determine which sides the front and which sides the side to change the setback requirement that they placed on it back on July the seventh, 1982. And that's essentially what's happening here with this particular issue. But, one of the problems with the setback has been resolved by this adverse possession claim. There's still another 21/a foot issue. We simply ask you to approve both so that tonight, sa that we can resolve our adverse possession claim effectively but I wanted you to know that my client has been working on resolving the issue of property that he's claimed as his over the years. Glick: Mr. Bryson. Bryson: 1 have a question. We have the plat that was before us earlier referred to as Lot 1-A. Is the area of that proposed Lot 1-A concur with the adverse possession order that you have said is forthcoming? Osterman: I'm not sure what you have as Lot 1-A. Could I see a copy of what you may be talking about sir? PLANNING & ZONING COMMISSION MEETING OCTOBER 13, 2004 PAGE 7 ~~ Bryson: It's Rebluff Terrace, Bluff View Addition. Osterman: The area known as Lot 1-A, Block 6, yes, that is part of it. Not all of it. Bryson: That's not it, then. Osterman: That's not it entirely, no. Bryson.: You, you made a reference to 12,000 square feet... Osterman: Roughly. Did you see the shaded-in area? Bryson: Yes. Osterman: The shaded-in area is the area that will be resolved by this dispute. Roughly. Glick: So the side next to Lot 2 on that same plat is where we're still in dispute after... Osterman: Yes, and that's the 21/~ foot that I believe, that is in dispute. Glick: Okay. ~ Amen: And, and this is the, the one that faces Forest Drive, we're calling that the side? Voice: Over here... Amen: Oh, we're back here...oh, against the Bailie's, Lot 2? Voice: At that's the rear. Make sure we're all on the same page. Osterman: I think we should identify it by north, east, south and west, would probably be a better way to do it, Voice: The west side then... Osterman: Yeah. Trying to understand it. Voice: And the south side would be this side... Osterman: The south side would be the south. Glick: Okay, any other comments? Okay, is there anyone else in the public PLANNING & ZONING COMMISSION MEETING OCTOBER 13, 2004 PAGE 8 \~ wishing to speak to this item. Bailie: Yes, I do...I'm the one... Glick: Would you come up to the... Bailie: Oh, I'm sorry...I'm the one who lives on the, facing the east, if that helps any. And the 21/2, 2.2 setback really does not affect me that much. I mean, my house is only five feet from my boundary line and yours is what? Voice: 171/2 Bailie:...171/a, so, I have no problem with that part. So, if that has any bearing on this case, why, that's my opinion. Okay? Glick: Okay. Would you sign in please. Bailie: Oh, okay... Glick: Okay, anyone else in the public wishing to speak to this item? Seeing none, we'll bring it back. Commissioners, discussion. Mr. Bryson. Bryson: Yes, I guess, not having direction from the, our city attorney with regards to the status of and how an adverse possession issue meshes with this proposed activity, I'm somewhat uncomfortable concurring that there is no issue in that area... Glick; Marilyn, you have a... Kebschull: Yeah, actually the city attorney and I actually discussed that and even if there is a court decision and that, that some of ar all of that property shown on the plat was shown to belong to Mr. Craig, you would still have a lot line and that lot line is what determines and encroachment. An encroachment exists and in order to remove that lot line, you would have to, you know, come for a plat and again, it would either require a rezone or a variance for the minimum lot size, probably a rezone in that case if you remove the lot line. So the encroachment exists regardless of their court case. Glick: Does that answer it, Phil? Bryson: So I, at face value, I would say that if this plat were approved and signed by the adjacent property owner also, that would replat that, that lot with this adjacent property. The plat we had before us had places for Diane and DeWayne Craig and Vern Loftstedt to sign and to the degree that all three of those people agree with that proposed replatting, that would eliminate that lot line. PLANNING & ZONING COMMISSION MEETING OCTOBER 13, 2004 PAGE 9 Kebschull: No, this eliminates the lot line, but you still create a split zone situation, so we're recommending to the Borough that they do not allow this plat to be recorded until that situation is taken care of because the split zone portion is Conservation will not meet the 20,000 square foot requirement for that zone. So they will either have to come back for a variance for lot size or rezone it to suburban residential. The lot line will disappear, but, when you look at it on one of our zoning maps, there will be two different zones. Glick: Okay. Craig: DeWayne Craig. I appreciate what Marilyn's saying tonight and I would like for you to consider that and okay the setbacks. About two months ago I got two earnest monies to buy two condos. I sold one unit five years ago, but when the people wha insure the property, title insurance, when they called the city the city told them there was an encroachment, so it's held up the two sales on the place and if I don't get the encroachments taken care of, I can lose those sales and so that's one reason I'm here tonight is to hopefully get this taken care of so I can. go through with those two sales for the condos. So, if you keep that in mind, I'd appreciate it. Glick: Okay. Anymore discussion. Yes. Amen: Okay, just several questions for staff. This has been one of our more interesting items for us to consider this evening. In reading through the material that you had given us prior to the meeting and not just the lay-down material, I was trying to figure out exactly when, on the map, Unit No. S came into being and when that was approved by the, by the city and apparently that never got... Kebschull: We don't have record of that, but we did have a meeting, Mr. Springer and I, with Mr. Craig and discussed that and he explained to us that that was a part of the original fourplex, but, and he could probably explain it better because he's the one who did it, and then somehow an interior, it was separated, one of the four-plexes was separated from the larger portion. The third story and the third story became the fifth unit. No building permits were issued for that. I don't know what year that was Amen: Okay, but we were aware of the number six, correct? That was a couple years back...what's labeled here No. F. And then, I'm going to have to use my math. So, the encroachment we're considering here is on this side here, correct? Kebschull: You're considering two encroachments. Amen: This one here and this one down here? PLANNING & ZONING COMMISSION MEETING OCTOBER 13, 2004 PAGE 10 1 Kebschull: Yes. Amen; Are these also encroachments that I have highlighted? Kebschull: There is an, you granted an encroachment permit in 2002 for the sixth unit when it was converted to a garage, or from a garage to a residential unit. Amen: Okay, then haw about this portion, this little triangle here? I'm on the lower right of the diagram here. (looking at the diagram)...That's not part of the structure? That maybe a deck or something? I see the boardwalk there...you see where I got confused? It looks like it's part of the building. Springer: If I might....one aspect or one thing I might mention about the so- called side/rear setbacks to clarify that for you is that when you stand on the street and look at the building, that is the front of the building. That's considered the front and the side of the property directly opposite that is the rear and a piece of property that is on the side, as you're looking at the building, is the side yard, unless it's a corner lot, then other side is also considered a front setback also. Glick: Mr. Amen. Amen: Then basically you have two fronts here? Springer: Two fronts, one side, and one rear. Amen: Thank you... Springer: ...and the building permit in 1992 that was issued, it clearly stated on that permit what the side yard setback was, what the rear setback was, and what the front setback was. Amen: Okay, so the two street sides, two street faces of the building, are considered the front, the flat plan of the building that faces the beach is considered a side... Springer: Yes... Amen: ...and then the portion that faces Lot 2, ar Dr. Bailie's, is considered the rear...Thank you. Hammelman: I guess the only comment I would have, it's very interesting issue here, but what I plan on doing is voting in favor of it because the building was constructed in 1982. The encroachment occurred at that time. Nothing has been done since then and the building is in place. And, it will either never be approved PLANNING & ZONING COMMISSION MEETING OCTOBER 13, 2004 PAGE 11 or always, they're always be an encroachment, or we can move forward and approve that and that's what I'm leaning for because I don't see a fix short of that and if the property is his to decide, then it's pretty much a moot point on that one and we've got Dr. Bailie here agreeing that the 2.2 encroachment on the rear side isn't an issue for him, so I'xn going to support the motion to grant the whatever, grant the encroachment permit. Thank you. Glick: Okay, any more discussion? Bryson: Igo back to the same situation, what the side setback. We're taking at face value that this adverse possession case has been settled and it would certainly be the fastest one I've ever heard of and it may well be. So, I, typically they're long, drawn-out affairs that... Craig: I have a question... Glick: Sure. Hammelman: I may be misunderstanding something, but, you know, in my evaluation of the request, to me, I'm just saying that's Loftstedt's and it will never change, you know. In my mind, if it never changed from the Loftstedt's property, I, I would still vote the way I just described. If it's ad, if it is taken back, it's given to the applicant here, the Craig's, then that would make it easier, I guess, but I'm not sure if I'm missing something here or not Phil. Could you help? Glick: Mr. Bryson. Bryson: I, I just might go back to recent history with the city council where adjacent property owners objected to approving encroachment permits that they perceived as affecting their property. To me it's the same situation until Loftstedt concurs. Craig: Can I ask a question? Mr. Bryson. Glick: Yes. Craig: Thank you very much. Who, what was the property owner that you are talking about? Bryson: The owner of the property that is beyond your property line that contains Lot 1-A. Craig: Do you mean, Mr. Laftstedt? Bryson: Yeah, that's what the preliminary plat... PLANNING & ZONING COMMISSION MEETING OCTOBER 13, 2004 PAGE 12 Craig: Mr. Loftstedt never came in and said anything about the encroachment.. . Glick: No, I think Mr. Bryson's referring to other cases that we've had where property owners adjacent objected and the city council upheld, is that what you were saying? Bryson: Yes, yes. Glick: Not yours, other cases that have been... Craig: I misunderstood him. Glick: Jeff. Twait: I guess I'm just curious, if we vote not to grant this, what is the remedy or where does this go from here, is this just a revolving circle that never, we're not going to knock the building down, I assume. But what, where does this end, I guess... Glick: I guess when we find out if the court case does change, you know, if they reapplied it and change the lot line. Amen: Well, of course, it can be appealed through the appeal process to the city council. Glick: Or, it can be appealed too, so. Bryson: I wonder if I might request a separation of the petitions for encroachment permits so that I could make the motion on them separately? So, I would request... Glick: Okay, you want to amend the motion to separate the two. Bryson: Yes. Glick: Okay. Do we have a second on it? Hammelman: The second would have to concur or is this an amendment to the motion? Bryson: It's an amendment. Glick: It's an amendment to the motion. PLANNING & ZONING COMMISSION MEETING OCTOBER 13, 2004 PAGE 13 Twait: I'll second that. Osterman: May we be heard with respect to the amendment? Glick; So, if we pass this amendment, it would be separating the side and the back... Osterman: Yes. Mark Osterman again for the record. My only concern is Mr, Craig has indicated to you that he has sales on this property and that this panel is effectively stopping the sale of his condominium units and prohibiting him from going forward. Mr. Bryson raises the issue he's never heard of such a case going forward so quickly. This is volume three sir of this particular piece of litigation. It's been going on since April of Iast year and I've got a copy of the pre-trial order that we're supposed to be in trial next week. Now, I don't know about you, but as an attorney, this is actually taken a lot longer than I'm used to. Because one has not protested should not be a reason for this board not to act. The fact that Mr. Lofstedt is not here to protest this particular lot line may well be in fact because I had spoken to Mr. Baldwin, his attorney, and asked that we not have any interference in seeking this particular encroachment as a means of part of our resolution of the case. We'd ask that you approve the encroachments on both and not allow the amendment. Thank you. Glick: Okay. We have an amendment to the motion to separate them. Let's vote on that amendment. Freas: Twait. Twait: Yes. Freas: Hammelman. Hammelman: No. Freas: Amen. Amen: Yes. Freas: Barrett. Barrett: No. Freas: Glick. Glick: Yes. PLANNING & ZONING COMMISSION MEETING OCTOBER 13, 2ap4 PAGE 14 Freas: Bryson. Bryson: Yes. Freas: You have four yes, two no. Motion passes. Glick: Okay, the motion passes. We separate the two. Okay. Let's deal with the one that's on the Loftstedt side first, the bluff side. Marilyn, you had... Kebschull: Mr. Glick, I would like a clarification before you vote that your motion included staff comments that we have an updated as-built to insure there are no further encroachments on this structure because of the new addition an Tayon and that the code requires that the drawing be submitted showing all the structures which we do not have so that if you should decide to approve, that the permit be held until we receive an as-built and because... Osterman: I would ask the record reflect that I'm going to provide her with a copy of the as-built, particularly, I also have copies of the other as-builts they claim were never provided. So, I let the record reflect. Kebschull: I'd like the record to reflect this is the first time we've ever seen this as-built, either the building official or myself... Osterman: It's a new one. I just got it today. Kebschull: Okay, for the record. Glick; Okay, since you were the maker of the motion, which... Bryson: Yes, I would like to amend the motion to require that the adjacent property owner concur in the, in the encroachment permit. Glick: On the bluff side there. Bryson: This is the, yes, the southerly... Glick; Southerly side. Bryson: In fact, that may already be the case if the have came to an agreement. Amen: So, it would be contingent upon their being izi agreement. Bryson: That a document would need to be provided that Mr. Loftstedt has no objection to the issuing of an encroachment permit. PLANNING & ZONING COMMISSION MEETING OCTOBER 13, 2004 PAGE 15 1 Glick: So, what you're saying, when that document's provided, this would pass. Bryson: Beg pardon? Glick: If we pass that, then the document has to be provided and if it is, then it automatically would... Bryson: Yes, it wouldn't come back to us... Glick: ...wouldn't come back... Bryson: ...it would part of the issuing of the encroachment permit for that, that side. Glick: Okay. Hammelman: Clarification. So then if we vote in favor of the encroachment permit, the condition on that would that we agreed to make it approved. Is that correct? Bryson: My amendment was just to add this as a condition. Glick: We still have the main motion, but he's amending it to say this is a condition that, you know, if it passes, that condition would have to take place first. We still need a second on his amendment though. Amen: I'll second that. Glick: Okay. Kebschull: Could you restate that please? What the condition would be. Glick: I'm still not hearing you Marilyn, I'm sorry. Kebschull: Could you restate what the condition would be? Glick: Okay. Bryson: The condition is that the adjacent property owner, adjacent to the southerly property line, concur in issuance of the encroachment permit of that lot line. Glick: Okay, let's vote on that amendment. Everybody clear on what this PLANNING 8v ZONING COMMISSION MEETING OCTOBER 13, 2004 PAGE 1F amendment does to the motion? Barrett: Discussion? Glick: Yes. Barrett: Is this a usual procedure having, being one of the newer people on the commission here. Is that, is that usually done? Glick: It's not an everyday thing, but it's done this way sometimes. It can be that way. I mean, staff has conditions to these if we agree to the conditions they're automatically... Barrett: Sure. I was talking about the condition of having the adjacent property owner approve our decision. Bryson: I'll speak on that... Glick: Okay. Bryson: This is precedent setting on the City of Kenai that property adjacent is proposed for platting initially without the apparent permission of the adjacent property owner in an adverse possession case. This is a very different situation. Barrett: Did I misunderstand or wasn't the adverse possession case on the westerly portion of Lot 2? Glick: No. Barrett: Misunderstood that. I'm sorry. Glick: Okay. Bailie: May 1 ask you a question? Glick: What is the boundary or the dimensions of the, well I guess, the 5-a, denoted anywhere? Bryson: Lot 1-A? Bailie: Which one is south of Mr. Craig's property that you're talking about? 5-A? Bryson: The drawing we have before us is a new lot referred to as Lot 1-A and incorporates Lot 1, which is Mr. Craig's, and property to the south. PLANNING & ZONING COMMISSION MEETING OCTOBER 13, 2004 PAGE 17 Bailie: is A? Bryson: Yes. Bailie: Any dimensions made an that? Bryson: There are dimensions here, but apparently that's not completely, they're not necessarily the same footprint as the court action as I interpret... Osterman: Actually, the shaded area is, but the area from 1-A is not.. Glick: You need to come to the mike sir because we're recording it and we can't.. . Osterman: Yeah, the dimensions of Lot 1-A are not the adverse possession area that was resolved. The tape_chan~e possession area and there is a different legal for that than the legal provided on that plat that you have but I want to paint out one of the issues that I think that may be overlooked here deals with the nature of the property itself. We're all worried about it being an adverse possession claim. Mr, Craig flattened this property out, filled it, planted grass, landscaped it, has put sculptures on it and occupied as a part of his land for over 20 years and that's why it's a fairly clear-cut issue about his making use of this particular property. Yeah, there has been a dispute, but as I said before, the parties have reached an agreement to disagree, so to speak, in the resolution. But also, I point out that Mr. Loftstedt should have received native to be here tonight and I think, under the circumstances, if he received such notice, why are, why should this board concern itself so extensively with his ability not to be here. Glick: Okay. Amen: Question far staff... Glick: You want to...go ahead. Amen: Okay, questian for staff. Maybe you can help me out with the terminology so a resolution is pending, but we've also heard that they've agreed to disagree, so if they disagree, I'm not sure how that turns into a resolution. Kebschull: In this case, I, what you're looking at, what we are looking at is the lot that is shown on the plat as Lot 1, Block 6. That's, that's what we're considering encroachments. Amen: ... so we're focused on that? Okay. Another question far staff. PLANNING & ZONING COMMISSION MEETING OCTOBER 13, 2004 PAGE 18 ~) Glick: Okay. Amen: The square footage, how much requirements on this? I was looking, it appears there's a lot of building a little bit of space here. Was that an issue, and maybe I missed it an the list here, was that resolved as a past issue or is the square footage... Kebschull: That has been resolved. At this time, the structures that are on the lot, according to our calculations which were done in 2002, meet the lot coverage requirements. There was a request for a variance for lot coverage and it was denied. Amen: Okay. And, for the rest of the commission just to comment is, the times I have noticed the parking and the traffic pattern an that corner, the vehicles on the street and the parking use on the property has combined to be, to make the corner pretty unsafe to drive through. There's been a lot of obstructions with traffic with the way this has panned out over the days and years, excuse me, the months and the days and so, I'm really leaning against doing anything at all. Well, let's see how the vote goes, but that has become an issue with the homeowners in that area. Glick: Mr. Barrett: Hammelman: That has nothing to do with the encroachment though. Glick: Mr. Barrett. Yau had your hand... Barrett: Yeah, I'd like to make an appeal for the commission members to turn their microphones on. I see Dr. Bailie there trying to strain to hear. You have to be sitting underneath a speaker and having spent far more than my fair share of time out in the audience, I know it would be appreciated. I'm sure the clerk would appreciate it as well. Glick: Marilyn. Kebschull: The as-built that was provided to us just a few minutes ago shows a additional encroachment and because it was not advertised, even if the Commission decides to take care of these two encroachments, I do believe he will have to come for another public hearing and re-advertise encroachment. Osterman: Sorry, but, this is all news to us and your in the middle of a motion and I don't think the staff should be directing you folks as to your business. I ask you to go back to your motions. Glick: Okay, you amended the motion. Yes. To put a condition on there, that's all. PLANNING & ZONING COMMISSION MEETING OCTOBER 13, 2004 PAGE 19 Bryson: Yes. Glick: Okay. We're going to vote on the amendment to the motion to add a condition. Everybody clear what we're going to vote on. Hammelman: You know, I really hate to say this, but I'm not absolutely clear. There was a motion to grant the encroachment permit as requested. Glick: Right. Then it's amended to add this condition to it. Hammelman: Okay. I thought I missed one. Barrett: And are we speaking to the side setback, this amendment? Glick: The south one. Barrett: The south one? Amen: The bluff side... Barrett: ...bluff side... Amen: ...is what we're talking about now. Glick: Okay? Barrett: Yeah. Glick: Okay, so if we're all clear, let's vote on it. Freas: Twait? Twait: Yes. Freas: Hammelman? Hammelman: Yes. Freas: Amen? Amen: No. Freas: Barrett? PLANNING & ZONING COMMISSION MEETING OCTOBER l3, 2004 PAGE 20 Barrett: Yes. Freas: Glick? Glick: Yes. Freas: Bryson? Bryson: Yes. Freas: Five yes, one no. Glick: Okay, passed to add the condition. Now we've split the item, so now we can vote on the main motion for this setback to the south. All right Phil? Bryson: My interpretation is that you split them into separate actions. One we've taken. The westerly property line we have not addressed. Glick: Right, we're addressing the south in this motion that's been amended. Bryson: That's been approved. Glick: Yes, we approved the amendment. Okay? Are we clear what we're voting on? Hammelman: Could you restate the motion that we're voting on? Glick: Okay, we're voting to approve the south encroachment as amended with that condition on it. Hammelman: Very good. I'm with you. Amen: What we just had was on the condition. Glick: We just added a condition on it, that's all. So, we're voting to approve it with that condition on it. Kebschull: Question far clarification. Does that include the issue that there be no other encroachment on that parcel, does that amendment request? Barrett: Wasn't that included in the original motion? Kebschull: ...inaudible... Glick: Yeah, that was in the original, so that should still be there. Okay, PLANNING 8~ ZONING COMMISSION MEETING OCTOBER 13, 2004 PAGE 21 okay, so we're voting on... Freas: The main amended motion... Glick: The main motion as amended. Freas: Twait? Twait: No. Freas: Hammelman? Hammelman: Yes. Freas: Amen? Amen: No. Freas: Barrett? Barrett: Freas: Glick: Freas: Bryson: Freas: Glick: Harnmelman Glick: Harnmelman Glick: Hammelman Amen; Yes. Glick? Yes. Bryson? Yes. Four yes, two no. Motion passes. Okay, so the motion passed to grant... The encroachment permit... ...encroachment... Far the bluff side... ...with that conditian. ...with that condition. And just the bluff side. PLANNING 8~ ZONING COMMISSION MEETING OCTOBER 13, 2004 PAGE 22 Hammelman: Correct. Glick: On south side. Okay, now we need to vote the other motion since we split them, to address the side encroachment on the side next to Lot 2. Okay? Okay, we're voting on to grant... Bryson: Yes, I would like to speak on that. Glick: Okay, Phil? Bryson; Like I again noted that the adjacent property owner has concurred in the petition for granting this encroachment permit. Glick: Okay. So a yes vote will grant the encroachment permit and a no vote will deny it. Okay. Freas: Twait? Twait: Yes. Freas: Hammelman? Hammelman : Yes. ~ Freas: Amen? Amen: Yes. Freas: Barrett? Barrett: Yes. Freas: Glick? Glick: Yes. Freas: Bryson? Bryson: Yes. Glick; Okay, motion passed. So, bath encroachments have passed tonight, but that condition was added to the one on the south side. Hammelman: I think we understand that. PLANNING & ZONING COMMISSION MEETING OCTOBER 13, 2004 PAGE 23 1 Amen: The condition was actually in the paperwork to begin with, not really added. Was that correct? Glick: No. Kebschull; You added the condition that the adjacent property owner... inaudible.. . Amen: Oh..inaudible...I thought you meant, no additional encroachments. Glick: But it was added. Bryson: I might add, this might also be by court order too rather than you know, whoever has the overriding authority... Glick: It maybe moot then, sir. Okay. Barrett: You may want to notify them of the appeal process. Glick: Well, if anybody wanted to appeal, they have 15 days to appeal to the city but I don't think the owners are going to appeal, so. Barrett: I think we're still required to say that. 5-d. PZ04-44 -- An application for a Conditional Use Permit for condominiums for the property known as Lot 1, Block 6, Redoubt Terrace Subdivision, Addition No. 3 (406 South Forest Drive), Kenai, Alaska. Application submitted by F. DeWayne and Diane E. Craig dba Bluff View Condominium Association, 406 S. Forest Drive, Kenai, Alaska. MOTION: Commissioner Hammelman MOVED to grant the conditional use permit as addressed in PZ04-44. Commissioner Barrett SECONDED the motion. Kebschull noted, after reviewing the complete files, it appeared it may be in the best interest if the Commission would consider to ensure all the outstanding issues included on the last page of the lay down provided at the beginning of the meeting, be remedied prior to the permit being issued and in addition, Commission may want to consider some kind of separation between Lot 2 and the subject property such as asite-obscuring fence. PLANNING & ZONING COMMISSION MEETING OCTOBER 13, 2004 PAGE 24 Verbatim begins: Glick: Okay, at this time we'll open it the public. Anyone wishing to speak on this item. Osterman: Mark Osterman appearing for Mr. Craig. One of the problems we have with this particular case is that we're asked to ,ask you for a conditional use permit. This is a violation of state law. This is a condominium project which is governed exclusively by state law. AS 34.07.440 states local ordinances, resolutions, or laws relating to zoning shall be construed, and I'm going to get that perfectly clear, it's not may be or should be, it's shall be construed to treat like structures, lots or parcels in a like manner regardless of whether or not the ownership is divided by the sale of apartments under this chapter rather than by the lease of apartments. Naw, the difference between a condominium and an apartment building, the apartments are sold. That's what a condominium project is and this condominium project has been approved for over ten years, I'm sorry, over five years, I apologize. The definition of an apartment by state law is it means a part of the property intended for any type of independent use, including one or more rooms or enclosed spaces located on one or more floors or parts or parts of floors in a building, and this comes out of AS 35.07.450 which is the definition section of condominium projects. Now that's not the whole definition. There's a lot more to it. A conditional use permit is required in the sale of townhouses. This is not a townhouse. A townhouse by definition is a structure which has its own separate an distinct front entrance which shares a common floor plan with alI other units that are there. If you consider that this is a townhouse and is subject to a conditional use permit, then you're in violation of state law which says no, you have to treat this as if it were an apartment. If you take a look at your own land use table which is Chapter 14.22 and I'll show you here, it says a five or six family dwelling is a permitted use. Not a conditional use. So, what's happened is, is Mr. Craig is ready to sell his condominium units. Staff over here has decided that he should not be able to sell them and they want to interfere with that particular sale until he meets some requirements that they have about this or that or the other. So then they come in requiring a conditional use permit which blocks the sale unless they approve the sale of the condominium as if it were a townhouse and that is encroaching upon Mr. Craig's ability to sell these particular units. The difficulty again, and I'll be happy to circulate this around if you'd like to see it and maybe, you know, take a look at it, but it makes it very clear that the laws, resolutions, and local ordinance relating to zoning shall be construed to treat this as an apartment and therefore cannot be treated as a townhouse and a conditional use permit, we're being forced to apply for it, we don't want it, we're not required to have it, we're asking you to issue a standard permit as required by law. Thank you. PLANNING 8v ZONING COMMISSION MEETING OCTOBER 13, 2004 PAGE 25 Glick: Okay, anyone else in the public wishing to speak to this? 1 Bailie: Coming here I received a...oh, my name is Charles Bailie, 1503 Toyon Way. I received kind of a printout here explaining some of the difficulties that Mr. Craig has incurred. Some of those, I wasn't aware were occurring and this is the one reason I am here today is the fact that we don't seem to have an ordinance as far as condominiums and I'tn kind of bewildered to what I can expect as an adjacent property owner for something like this. Sa I guess I will say, I would Iike to have something laid out so I know exactly what I'm looking at as far as my property. The structure that Mr. Craig has built has caused, my house is for sale and two people last year looked at the house and decided not to be interested in my home because of the structure that it didn't fit in architecturally, it didn't fit in color-wise and so forth. So, I have a lat of questions here, you know, what in the hell is going on over there. i mean, is it a condominium, is it an apartment, what is it? Several years ago, I guess in June of 99, Mr. Craig applied far a condominium, one condominium and I said I was against it, but it still went through. Now, alI of a sudden he's starting to sell four, sa you see I've got a lot of problems here that I just don't understand what's going on and sa, I don't know, I'm confused and I hope you can help me out. Thank you. Glick: Okay, thank you. Anyone else in the public wishing to speak. Okay, seeing none, we'll bring it back to the commissioners. Discussion. Twait: I have a question for Mr. Osterman, I believe. Osterman: Yes sir. Twait: As far as I know how condominiums work, there are pretty strict guidelines. You're stating that public offering statements and all this stuff are in compliance as far as these units go? Osterman: Well, the, it's my understanding the entire building was approved for the sale of condominium units. It's not simply a matter of one condominium was approved, but it's somewhat like a subdivision in a condensed form. The, the approval of a condominium requires the approval of some by-laws, regulations, a homeowners' association, dealing with common areas and mowing of grass and all of those things are taken into consideration. The, this matter, I believe was forwarded to this commission many years ago and no comment was made, forwarded to the borough who gave and granted approval and it moved on to the state far finalization. So the issue is that all the apartments in the unit are available for sale and not just for, for lease and by the way, that was approved by staff report of June the 15th, 1999 concerning it and looking and focusing on the statute that I indicated, the set of statutes that govern how it would appear. I'd also indicate the staff report in 1999 indicated there'd be no necessity to change lot lines and...yeah, there was a vote by the way that Bryson was yes; was it Go-kee (Goecke) PLANNING & ZONING COMMISSION MEETING OCTOBER 13, 2004 PAGE 26 was yes; Newberry was yes; Erwin was yes; Nord abstained; and Glick voted yes to the development of this as a condominium. So, it's been around, it was public hearing PZ99-24, l'm sorry, dash 23 I believe that granted that. So, it's been around. Twait: But in order, you mean your, there's strict guidelines and you, there's compliance to stay continuous... Osterman: Right. Twait: ...in a condorniniurn... Osterman: Correct. Twait: ...and you're stating that is in fact the way it is there. Osterman: It's my understanding that there is no issue of compliance. The difficulty is that the way the condominium act works is that the local zoning and planning board loses any authority over the control of the condominium itself except as I indicated before, like-kind treatment. If it's an apartment unit in any other apartment building, you could treat it as an apartment building. As I pointed out, that's why the conditional use permit doesn't fly with being a townhouse because it's treated as an apartment building for all purposes under state law. So, as an apartment building, you can ask the questions about is this the kind of in nature and quality of expansion and all the other issues, but that's one of the keen issues that apply here is that you can't go back to prior to the condo act and say, we didn't care for this use then or after you've already approved it. That's, that's why we're here saying that what staff is recommending is essentially recommending that you condemn the condominium unit and give them control over the state and that would be a violation of state law because the state is exercising peremptory right to control condominium units and the sale of condominium units is regulated by the state and should not be regulated by the staff of the City of Kenai. Glick: Okay, thank you. Mr. Bryson. Bryson: We're still in public comment? Glick: We're back to our... Bryson: Okay. Question. The 1999 action was a platting procedure. Is that not correct? Kebschull: That's correct. Bryson: That's correct. Okay, so, we're advisory to the borough. This is not a PLANNING 8s ZONING COMMISSION MEETING OCTOBER l3, 2004 PAGE 27 l land use issue, this is a platting period. We made recommendations and those, 1 presumably those recommendations were passed onto the borough and they acted on it as a plat, not, not gland-use issue and to me, that's the basic difference between the action taken and what we're doing tonight. Glick: Yes, Marilyn. Kebschull; Yes. Also, it should be noted that the borough recorded the final plat without following the recommendations of this commission. One of those was there be no encroachments and the plat verify there were no encroachments. As you saw tonight, there were two encroachments. The other one being that the unit be verified that it met the one-hour firewall separation and that was not done until this year to be allow the applicant to apply for this permit. Amen: I have a question for staff which relates to the use of this structure and how it's being utilized. Exactly how many units can you squeeze into something this size. I'm not really connecting with what the limit is here. Is there a limit of six? What, what's the deal. Kebschull: By zone, there's a limit of six. Anything additional requires conditional use. Amen: And I'm the conditional use is because of the intended sale now is why the conditional use is being... Kebschull: Na, our, our land use table does not show condominium as was stated earlier. However, our city attorney has interpreted our land use table to show that any uses not listed requires conditional use. And we've gone through this with other condominiums in the past and we require conditional use for condominiums. Amen: Thank you. Glick: Mr. Bryson. Bryson: Yes, in reading through the existing ordinance that our city attorney recommends applying to this, the townhouse requirement, it requires a lot size of 2,000 feet minimum per parcel. Given that the proposed activity is less than completely conforms to the definition of the townhouse, is he comfortable with applying a lot requirement, an area requirement for units? Kebschull: Caught me off-guard. We typically would look at that situation, and this is one of those instances when you're looking a use that was constructed prior and now is being converted and the city attorney has made no determination on that. However, that is, the concern is addressed as far as the recommendations from staff for site plan that assures that there's adequate off-street parking, and PLANNING & ZONING COMMISSION MEETING OCTOBER 13, 200+ PAGE 28 snow removal areas and those types of things. Bryson: So, I guess I would construe this that all property on this lot would be considered common area even though it's not identified on the, the plat itself. Kebschull: Under condominium regulations, as 1 understand it, the property, the land is jointly owned by the condominium association, each owner owns the individual square footage of their unit and they share ownership by percentage of the parcel. The land. Bryson: Follow-up question. Glick: Yes, go ahead. Bryson: Okay, I'rn, the only document I have to look at is the townhouse ordinance because that's the one the city attorney recommended apply and there's a requirement there that, for a certain lot size, but it also distributes common area, presumably equally to the parcels to determine this 2,000 feet. Kebschull: Townhouses are different in that they own the property that they sit on so it is a different, that our code does not specifically address condominium development. So if you Look at a townhouse, typically a townhouse will be from ground up and they own the ground underneath them and they usually have ownership of the front yard and rear yard, but they will have zero lot line. Bryson: Okay and interpreting in a broad sense though, lot, say Lot 1 would be treated being common property far the, for all four, for all six parcels then. Kebschull: That's correct. Bryson: Okay, so they would be, that area would add to their strip building area as being available for whatever activities they have. That would include the garages, the storage units and grass. Kebschull: I guess I'm not understanding your question. Bryson: Well, you'd have to look back at the townhouse ordinance to see how they determine this minimum this 2,000 square feet. Glick: More? Bryson: No thanks. Glick: Okay. Anymore discussion? PLANNING & ZONING COMMISSION MEETING OCTOBER 13, 2004 PAGE 29 \ Craig: If I could make a I'd like to make a comment if I could. } Glick: One comment. Craig: Kind of a long one though. Cut me off if I get too long. But, real quick, as quick as I can. In 1999 Cliff Baker did that survey and he outlined everything and you know, they came in and they measured inside of every single room and measured the outside of the building. It's a big survey. That's what the state requires. A 53-page document was sent to the state. It was okayed by the state and we weren't told that we needed a building permit. Cliff Baker, I talked to him a couple months ago after we found out that we needed a building permit, he said he was not notified that we needed a building permit. It's not in the code anywhere that we need a building permit, not a building permit but I mean a conditional use permit. Then in 2002, after we gave, we gave the plot and also Ihad an as-built done April 97 and I had another, had it updated August 98 and the city saw this, they saw the new one Cliff Baker did in 99 for the condos and we were never told that we had any encroachments. It wasn't until 02 that we were told that we had any encroachments. I went for like 20 years, from 82 to 02 before I found out there was an encroachment. Carolyn sent me over to the city hall or to the borough building to get all the information to prove that I had filed the documents, the 53-page document she sent me aver there to get it, but when I got over there, Mary Toll said they had nothing to do with it so I had it put it in writing on 8/31/04 that says condominiums are handled under state statutes. The borough does not get involved in these conversion and she's the head of the planning department over there. I guess she's the head of the planning department, she a applying officer. So, I'm really at a loss. Oh, the other thing I wanted to say was real quick is that in 99 after we did all the paperwork, went through Cliff Baker, took it to you guys, I sold a unit. So, five years ago we had, had a unit sold and it is deeded to another party already and now five years later, when I want to sell another unit, I'm told I need a conditional use permit and according to my attorney, he doesn't think I have to have one, but we're trying to jump through the hoops so I can get these two properties sold and it just puts me in an awkward position to find out five years after the fact that I needed, my son-in-law Cliff Chappel, converted two condos and he was told ahead of time when he came before you folks to get it approved, the whole thing was approved at one time. Cliff Baker did this for us cause he, according to him, no one knew what to do, didn't understand it that well because it was pretty new situation converting apartments to condos and he wasn't told and when I went back to him a couple of months ago, he thought it should be treated as a five-unit family dwelling, not a condo, not a townhouse But anyway, it's just really frustrating that I, my wife and I thought we did everything we needed to do back m 99 and five years later we find out that we didn't, that we had to have a conditional permit and it's no PLANNING & ZONING COMMISSION MEETING OCTOBER 13, 2004 PAGE 30 where in writing and nobody told us until now that we had to have this. Glick: Okay... Osterman: If I could very quickly, the definitions in 14.23.20 of this of the code here, define townhouse and a dwelling unit and they are completely different definitions. A townhouse is asingle-family dwelling unit constructed in the series of a group of two with units separated by adjoining unit walls. A dwelling is a place of dwelling with a kitchen. This place is certainly a dwelling unit, by multiple dwelling units, it is an apartment building, it is not townhouses despite what staff may inform you. Thank you. I'd ask you to stay to your definitions in your code. Thank you. Glick: Okay. Do we have any more discussion. What's .You have something Phil? Bryson: I did. Our staff recommendations attached to the motion? Glick: It's my understanding when we passed the motion, the recommendations are included. Marilyn? Kebschull: For clarification, if the additional information that I presented tonight would also be as part of the motion. Hammelman: That was not the intent of the motion. Bryson: I would like, just to be conclusive in this, I'd Iike to move that staff recommendations, written staff recommendations and oral staff recommendations provided tonight be incorporated in the motion and request that staff restate those. Glick: Okay. Amen: Phil, does that include the lay downs we have too then, the information, or is that automatically with the minutes. Glick: Well... Hammelman: That's what staff s going to recommend right now. Bryson: That's just a timeline... Glick: Okay, did you make this as an amendment Phil, or... Bryson: It is an amendment, yes. PLANNING & ZONING COMMISSION MEETING OCTOBER 13, 2004 PAGE 31 .~ Glick: Okay, do I have a second on the amendment? Amen: I'll second that. Hammelman: Discussion on the motion? Marilyn did comment earlier that she said that the commission might want to consider adding these unresolved issues as conditions to the amendment. So I would take what your amendment is to include that. Bryson: Yes and I've asked Marilyn to, Marilyn to restate those please. Glick: Okay, so... Kebschull; In addition to those documented in the information in your packet, number one was prove that they've met the state statute which we do have on file. Number two is the site plan showing the off-street parking, meet parking requirements; the dumpster location on the applicant's property and snow storage area be identified and be contained on the applicant's property; and an updated as- built survey sa we can verify there no additional encroachments. The lay down tonight on the last page, we need to determine what we need to do to clear up the issue that no building permit that was ever issued for Unit 5; building permit B3938 is outstanding and has not been constructed as the permit was issued with an interior staircase; there has been no Certificate of Occupancy for that building permit so occupancy should not be permitted and then the other two issues are those you're dealing with tonight, the rear and side-yard encroachment which have already been dealt with and the condominium request that you're dealing with now. Glick: Okay. Osterman: Can I be heard? Hammelman: I have a comment first please. On, there's one other issue that Marilyn mentioned earlier and that was the consideration for a, for side-obscuring fences or sight-obscuring fences. You mentioned it, sa I don't know if you want to include that or... Kebschull: Well, there was a discussion with Dr. Bailie and concern about separation of his property and as often the case in situations where you have conditional use permits that for esthetic purposes that there is separation and fencing is on,e method of how that's handled so I wanted the commission to consider that. Hammeiman: Okay, so that would, wouldn't be a part of, thafd be a separate consideration. Thank you. PLANNING & ZONING COMMISSION MEETING OCTOBER 13, 2004 PAGE 32 ~~ Glick: Okay. Osterman: I intend to be very brief. The lay down here is, in my opinion, a means of attacking us without notice and without knowledge. We're here for an opportunity to be heard and to provide information. This was prepared as a punitive measure to ask you to punish DeWayne Craig and not to let him use his approved condominium units by slapping on a conditional use permit. If you think about it, you're going to back up five years of state approval and not permit him any of the use of his property because you've said he may not be in compliance, but you don't know whether he is or not. A great many of the items on this list we can test. There are a lot of things on here that are not accurate and yet you've been handed it and you're going to use it against DeWayne Craig as part of your decision tonight and that is kind of like jumping out of the bushes at somebody and grabbing them without notice an opportunity to be heard which are two main keys of due process. So the due process, the least you could do is to table this issue to give us an opportunity to respond to staff s attacks out of the dark with regard to this particular issue. The other thing is to say you have a conditional, you're asked to approve a conditional use permit on a building you don't have authority to issue a conditional use permit on. By your own definitions and your own ordinances, you can't issue a conditional use permit to an apartment dwelling. Just letting you know that, I think, is where the situation lies. Thank you. Glick: Okay. Anymore comments from commissioners? Okay, let's vote on the amendment which was to add the items in. Amen: I'm sorry. Clarification on that amendment, the amendment that was stated does not include asight-obscuring fence or whatever. Glick: No. Amen: That's not in this one? Glick: No. Amen: Okay. Glick: Okay. Okay, we're voting on the amendment. Freas: Twait? Twait: Yes Freas: Hammelman? Hammelman: Yes. PLANNING & ZONING COMMISSION MEETING OCTOBER 13, 2x04 PAGE 33 Freas: Amen? Amen: Yes. Freas: Barrett? Barrett: Yes. Freas: Glick? Glick: Yes. Freas: Bryson? Bryson: Yes. Glick: Okay. Anymore comments before we vote on the main motion as amended? Barrett: Sir? When is it appropriate to discuss perhaps tabling this. Would that be now? Glick: If you want it tabled. Hammelman: I'm not sure we understand what that means. Barrett: Oh, to continue it to the next meeting. Glick: You have to table to a time certain then if that's what you want to do. Bryson: Postpone action... Glick: And that's what you're saying, you want to table it to the next meeting. Barrett: I'd like to discuss it. Bryson: Since there's been no tabling motion, I'd like to discuss. Glick: Okay, we'll discuss it for... Bryson: I have a concern that the proposed conditional use does impact the neighborhood and it may or may not affect it much differently than an apartment complex, but it affects it and at this point, that's my concern. That's one of the criteria that are addressed ira approving a conditional use permit. PLANNING 8v ZONING COMMISSION MEETING OCTOBER 13, 2004 PAGE 34 Barrett: Mr. Chairman? Glick: Okay, if you want to table, there's no discussion on a tabling motion. Barrett: Okay, I did want to ask about Commissioner Bryson's comment. Glick: Okay. Barrett: How does, if this conditional use permit were approved, how would it affect it differently than it's, the neighborhood is affected now? So I'm clear, I'm clear on that. Bryson: It may not be different, but we've had testimony that it has affected the adjacent property and we have, or I have received comments from property owners along the street that they are concerned about the heavy development in that area. In the past, we've addressed the area that was involved that's been developed on that lot and it was approaching the, I might be slightly out of context, but approaching the upper limit of allowable area for development and I would defer to staff on that. Glick: Okay, anymore Jay? Barrett: I move to table the motion until the next meeting. Glick: Okay. Bryson: Second. Glick: There's no discussion on a tabling motion, so we'll vote on the motion to table. Freers: Twait? Twait: Yes. Freers: Hammelman? Hammelman: Yes. Freers: Amen? Amen: Yes. Freers: Barrett? PLANNING 8~ ZONING COMMISSION MEETING OCTOBER 13, 2004 PAGE 35 1 Barrett: Yes. Freas: Glick? Glick: Yes. Freas: Bryson? Bryson: Yes. Glick: Motion passed. Tabled till our next meeting, that would be our second meeting of this month. Barrett: That would be the 27tH. End of verbatim. ITEM 6: OLD BUSINESS -- None. ITEM 7: 7-a. PZ44-45 -- An application for a Home Occupation Permit for a daycare for the property known as Lot 32, Block 1 Redoubt Terrace Subdivision (1614 Tanaga Avenue), Kenai, Alaska. Application submitted by Kathryn Medcoff, 1614 Tanaga Avenue, Kenai, Alaska. Introduced by consent agenda. 7-b. Review/Recommendation -- Structure Improvements, Lot 6A, Block 1 Gusty Subdivision No. 4, 11616 Kenai Spur Highway/445 Coral Street, Leased by Pingo Properties, Inc. and Geoffrey M. Graves. Review/ Recommendation MOTION: Commissioner Hammelman MOVED to approve and Commissioner Barrett SECONDED the motion. Kebschull reported the improvements meet all zoning and all building codes. The issue is based on a lease requirement. VOTE: PLANNING 8v ZONING COMMISSION MEETING OCTOBER 13, 2004 PAGE 36 Twait Yes Hammelman Yes Eldrid e Absent Amen Yes Barrett Yes Glick Yes B son Yes MOTION PAS5ED UNANIMOUSLY. ITEM 8: PENDING ITEMS -- None. ITEM 9: CODE ENFORCEMENT -- Nane. ITEM 10: REPORTS 10-a. City Council -- Ross noted the council meeting action agenda was provided at the beginning of the meeting. 10-b. Borough Planning -- Bryson reviewed the actions taken at the 9/27/0 Plat Committee and Planning Commission meetings. The agendas for both meetings were included in the packet. 10-c. Administration -- Kebschull reported the following: + Reports of building permits issued to date and zoning permits were included in the packet. + A vacation will be coming forward after approval by the KPB Planning Commission. + In reviewing the December calendar, it was noted there may be a staff shortage for the December 22 regular meeting. Kebschull noted, at this time there were no items scheduled for that meeting and asked if the Commission would like to request the meeting be canceled. Commissioner Bryson requested the meeting be canceled and there were no objections from the Commission. The request will be processed. + Noted the city's daycare licensing requirements do not match with the States relating to the number of children allowed to be cared for at a time. Kebschull stated she would prepare a report comparing the state and city requirements as the Commission may want to consider amending the code to match the requirements. • Relating to condominiums, Kebschull noted the city attorney had interpreted the city code to mean, if the land use is not included in the table, it would require a conditional use permit. She added, the Commission may want to consider amending the code to include a definition for condominium and determine whether it should require a conditional use. + The four-page chronological information document was assembled as a result of the Landua request. The information was gleaned from the building permit and zoning files. PLANNING & ZONING COMMISSION MEETING OCTOBER 13, 2004 PAGE 37 ~ Springer noted, he took exception to the use of the word "attack" by Osterman. He added, it was not an "attack" on Mr. Craig, but a document stating the contacts made with Craig over the years. Hammelman noted the discussion had been tabled and asked what might be different when it is brought forward at the next meeting. Kebschull noted, she believed it was to allow Osterman to have additional time to review the document. Bryson noted, the petitioner requested it. • The as-built provided in the Craig discussion indicated an additional encroachment and she would be requesting the city attorney review the issue and to discuss whether it will require an additional application. ITEM 11: PERSONS PRESENT NOT SCHEDULED -- None. ITEM 12: INFORMATION ITEMS 12-a. Zoning Bulletin (9/ 10/04) 12-b. November 24th Meeting Cancellation Memo 12-c. KPB Comprehensive Plan Update letter dated 9/29/04 12-d. Ordinance No. 2071-2004 -finding that certain City-owned land, identified as Lots 1 & 2, Block 6 Mommsens S/D Replat of Additions 1 & 2, located at 2402 & 2406 California Avenue in Kenai are required for Public Purpose. 12-e. Building Permits Quarterly Report ITEM 13: COMMISSION COMMENTS & UESTIONS Glick questioned the cars parked at Thompson Park and Kebschull noted she would check into the matter. Hammelrnan thanked Bryson for his clarifications on the setback issue and Glick's managing the discussions. Amend noted the following: • Asked if a mobile home is removed from a mobile home park, if it can be replaced. Kebschull noted, the park may replace the mobile home as long as the park continues to operate. She added, there were code specifications. • Noted the Commission had handled an interesting situation on Toyon and Forest. He felt the Commission did a good job in reviewing the information, listening to concerns, and spliltting the issues. He suggested, prior to the next Commission meeting, members drive by the area and noted his concerns with the use of the property, street parking issues, etc. ITEM 14: ADJOURNMENT PLANNING & ZONING COMMISSION MEETING OCTOBER 13, 2004 PAGE 38 MOTION: Commissioner Bryson MOVED to adjourn and Commissioner Barrett SECONDED the motion. There were no objections. SO ORDERED. The meeting adjourned at approximately 9:10 p.m. Minutes transcribed and prepared by: i1 r~ ~ fi~e;,~~~ Carol L. Freas, City Clerk *NOTE: Due to the length of the regular meeting, the scheduled work session was postponed until after the October 27, 2004 meeting. PLANNING & ZONING COMMISSION MEETING OCTOBER 13, 2004 PAGE 39