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HomeMy WebLinkAbout1996-11-13 p&z packetCITY OF KENAI ,~ PLANNING AND ZONING COMMISSION **AGENDA** KENAI PUBLIC LIBRARY CONFERENCE ROOM November 13, 1996, 7:00 p.m. http://www.Kenai.net/city 1. ROLL CALL: 2. APPROVAL OF AGENDA: 3. APPROVAL OF MINUTES: October 23, 1996 4. PERSONS PRESENT SCHEDULED TO BE HEARD: 5. CONSIDERATION OF PLATS: a. PZ96-70-Preliminary Plat-Radar Subdivision No. 2 6. PUBLIC HEARINGS: 7. NEW BUSINESS: a. PZ96-72-Home Occupation Permit (Beauty/Hair Dresser Shop)-Laverne Arthur Braun, 2795 Watergate Way, Kenai, AK 99611 (Lot 22, Block 1, VIP Park Estates) b. January 8, 1997 Meeting Location 8. OLD BUSINESS: a. Notification on Home Occupation Permits 9. CODE ENFORCEMENT ITEMS: 10. REPORTS: a. City Council b. Borough Planning c. Administration 11. PERSONS PRESENT NOT SCHEDULED: 12. INFORMATION ITEMS: a. Letter with attachments from KPB dated 10/15/96 b. KPB Ordinance 96-36 c. Herman S/D No. 2 KPB Administrative Approval d. Memos dated 10/28 and 10/31/96 from R. Harris, KPB e. Notice of KPB Planning Commission Action dated 10/15/96 & 10/31/96 f. "The Roles and Responsibilities of Elected and Appointed Officials in the Planning Process" Planning & Zoning Commission Agenda Page 2 November 6, 1996 ~~ g. Memo dated 11/6/96 from C. Graves with Supreme Court Case No. 5-6532 h. "Conditional Uses" by Lee Sharp (2/11/95) i. "Variances To Land Use an Platting Regulations" by Lee Sharp (2/11/95) ~. City of Kenai 1997/98 Capital Improvement Projects Resolution 96-86 k. City of Kenai Ordinance 1723-96 Approving and Adopting the City of Kenai's Comprehensive Plan 13. COMMISSION COMMENTS & QUESTIONS: 14. ADJOURNMENT: ~~ CITY OF KENAI PLANNING AND ZONING COMMISSION **AGENDA** Council Chambers, 210 Fidalgo October 23, 1996, 7:00 p.m. http://www.Kenai.net/city 1. ROLL CALL: 2. APPROVAL OF AGENDA: 3. APPROVAL OF MINUTES: October 9, 1996 4. PERSONS PRESENT SCHEDULED TO BE HEARD: 5. CONSIDERATION OF PLATS: a. PZ96-67-Revised Preliminary Plat-Ridgeview Estates b. PZ96-68-Preliminary Plat Aliak Corner Subdivision No. 2 c. PZ96-69-Preliminary Plat-Star of the North Subdivision 6. PUBLIC HEARINGS: a. PZ96-66-Resolution of the Planning and Zoning Commission supporting amending the Kenai Municipal Code 14.20.220 to establish signage requirements within the Townsite Historic District Zone 7. NEW BUSINESS: a. Review of Title 14 of the KMC-Cabins b. Application for Lease-Lots 13 and 14, Block 1, C.I.I.A.P. 8. OLD BUSINESS: a. PZ96-60-Landscape/Site Plan Review-Tract 4-B-4, (Pad "C") Cook Inlet Industrial Air Park Subdivision 9. CODE ENFORCEMENT ITEMS: 10. REPORTS: a. City Council b. Borough Planning c. Administration 11. PERSONS PRESENT NOT SCHEDULED: 12. INFORMATION ITEMS: a. Kenai City Council Roster b. Kenai River Special Management Area Advisory Board minutes of September 19, 1996 Planning & Zoning Commission Agenda ~ c. November & December Meeting Schedule Memo 13. COMMISSION COMMENTS & QUESTIONS: Page 2 October 23, 1996 14. ADJOURNMENT: CITY OF KENAI PLANNING AND ZONING COMMISSION October 23, 1996 ***MINUTES*** 1. ROLL CALL: Members present: Barb Nord, Michael Christian, Karen Mahurin, Phil Bryson, Carl Glick, Teresa Werner-Quade, Ron Goecke Members absent: Others present: Councilman Hal Smalley, City Engineer Jack La Shot, Administrative Assistant Marilyn Kebschull 2. APPROVAL OF AGENDA: BRYSON MOVED TO APPROVE AS SUBMITTED AND REQUESTED UNANIMOUS CONSENT. MOTION SECONDED BY GOECKE. 3. APPROVAL OF MINUTES: October 9, 1996 MAHURIN MOVED FOR APPROVAL OF MINUTES OF OCTOBER 9, 1996. GOECKE SECONDED THE MOTION AND ASKED FOR UNANIMOUS CONSENT. Glick stated on Page 8, it should be changed as Mr. Christian's second paragraph states "she" and should be he. Christian stated on Page 3 it should be "sell" instead of sale. Glick asked if any objections to unanimous consent. None noted. MINUTES APPROVED. 4. PERSONS PRESENT SCHEDULED TO BE HEARD: 5. CONSIDERATION OF PLATS: a. PZ96-67-Revised Preliminary Plat-Ridgeview Estates WERNER-QUADE RECOMMENDED APPROVAL OF PZ96-67. MOTION SECONDED BY BRYSON. Glick asked for additional staff comments. La Shot on the very last page is the plat the Commission saw recently. This plat reconfigures that plat. La Shot stated it basically forms one tract, Tract A from what was proposed as lots one through four. Planning & Zoning Commission Minutes Page 2 October 23, 1996 1 ' Bryson asked for clarification from maker of the motion if intent was that the engineer's recommendation be included. Werner-Quade noted yes. Glick clarified the motion to include engineer's recommendation and asked for other discussion. None. VOTE: BRYSON YES GOECKE YES MAHURIN YES GLICK YES WERNER-QUADE YES NORD YES CHRISTIAN YES MOTION PASSED UNANIMOUSLY. b. PZ96-68-Preliminary Plat Aliak Corner Subdivision No. 2 CHRISTIAN MOVED TO APPROVE PZ96-68. NORD SECONDED THE MOTION. La Shot stated no additional staff comments. No additional Commission comments. VOTE: WERNER-QUADE YES GOECKE YES NORD YES CHRISTIAN YES MAHURIN YES BRYSON YES GLICK YES MOTION PASSED UNANIMOUSLY. c. PZ96-69-Preliminary Plat-Star of the North Subdivision BRYSON MOVED TO APPROVE PZ96-69. MAHURIN SECONDED THE MOTION. La Shot stated no additional staff comments and no contingencies. Christian stated he was curious on lot two why lot line has such an angle. La Shot noted the surveyor was present adding he may be able to answer the question. La Shot stated he thought it was put in to the appropriate setbacks. Planning & Zoning Commission Page 3 Minutes October 23, 1996 McLane, surveyor, stated the offset is parallel to the house structure rather than perpendicular to the street to maintain the 15 feet offset. McLane commented if the structure residence qualifies fora 10 foot setback, he would like the ability to arrange that with staff. McLane noted it is a split level house with a basement rather than a true two story. McLane added he is not sure of code. McLane stated that would allow more space between property and the church property. La Shot stated staff can take a look and if it qualifies for setback staff would not be opposed to the change. VOTE: GOECKE YES MAHURIN YES BRYSON YES GLICK YES NORD CHRISTIAN WERNER-QUADE YES YES YES MOTION PASSED UNANIMOUSLY. 6. PUBLIC HEARINGS: a. PZ96-66-Resolution of the Planning and Zoning Commission supporting amending the Kenai Municipal Code 14.20.220 to establish signage requirements within the Townsite Historic District Zone MAHURIN MOVED TO APPROVE PZ96-66. BRYSON SECONDED THE MOTION. PUBLIC HEARING OPENED: Michael Huhndorf, member of Townsite Historic District Board (TSH), commented that the board had discussed the special nature and flavor of a historic district due to it's visibility. Huhndorf stated the district as it sits because of it's location and trying to create a consistency in appearance of signs as the board has stated and discussed be changed to reflect the flavor of the historic district. Huhndorf noted that they did realize that the comments were taken by the city attorney regarding content and restricting the rights to freedom of speech. PUBLIC HEARING CLOSED. Mahurin noted this has been along-standing project from TSH. Mahurin stated that she believes that with the diminished size of Old Town that it is important that we do have a district flavor to that area. Mahurin added there is a lot of development going on. Mahurin stated she will support this resolution adding she appreciates the work of the TSH and think the Commission should support their efforts. Planning & Zoning Commission Page 4 Minutes October 23, 1996 ~ Goecke apologized and asked indulgence noting he didn't get packet until today. Goecke commented we have gone over and over this sign code in the city and stated he is not totally convinced that we need to have one more sign code in this city. Goecke commented he doesn't necessary like the one we have much less add another one. Goecke noted being a business person you cannot actually have too much signage. Goecke agreed it can be over done in some instances adding he has voted against some. signs. But, don't think that we need to have an inclusive sign code for the a given area. Goecke stated he feels that our sign code as we have it is sufficient for our city. Bryson commenting regarding Section 14.22.20 F(1) which describes intent of the ordinance. Bryson read, "It is intended that the sign..." asking who is going to interpret the phrase adding he didn't think he could. Bryson stated he feels that is an arbitrary area that should be clarified. Bryson stated his other comment is the exclusion of electric signs. Bryson noted that in the wintertime when people need business in that area presumably signs would only be visible for six hours of a day. Mahurin stated she knows that TSH has also talked about street lighting and with the projects going on to pave and widening of the road, there are a lot of things board is working on and talking about. Mahurin stated she agrees and doesn't think there should be electric signs. Mahurin noted that the Russians didn't have signs and that is all that is left of that era. Mahurin, noting she doesn't want to disagree with Mr. Bryson, but F1 is an intent as to why they feel there should be a special sign code for that area. Mahurin agreed that it is rather nebulous adding she felt a building inspector could help with that. Mahurin noted this is their statement of why they want a special sign code for that area. Mahurin stated she agrees with all these portions. Mahurin noted it doesn't say there can't be lights but says there will not be garish lights in that part of town. Mahurin stated that is what the ordinance is intended to do. Werner-Quade concur with Ms. Mahurin's comments adding she thought the same thing on the electric signs. Werner-Quade stated this brings to mind law offices of Cowan adding she thinks they may have lights that shine from the rafters that shine on the signs at night. Werner-Quade stated she feels this is in keeping with what the TSH has in mind. Werner-Quade commented she was pleased to see this come before us expeditiously rather than waiting to review the entire sign ordinance. Werner-Quade noted she will vote in favor of this resolution. Bryson questioned staff if there is a portion of the sign code that addresses electric signs and differentiates from lighted signs? La Shot stated he doesn't believe it does. La Shot stated this was intended to not allow electric signs but to allow indirectly lighted signs of a smaller nature. La Shot stated the first paragraph on intent that there is not too much administration can do about that when issuing a permit. La Shot stated it does say in relation to size. The ordinance was tailored to try to have something definitive that administration could use when it came time to issue a sign permit and keep it as simple as possible while reflecting the needs of the zone. Planning & Zoning Commission Page 5 Minutes October 23, 1996 Goecke noted that didn't answer his question. Goecke commented that even with this there is no distinct one sign other than flashing signs and any electric signs that will be permitted. Goecke stated that the intent "thing" seems to leave everything in the open to a particular individual's interpretation. Goecke commented you can interpret it one way and I'll read it and interpret it another way and who's to say who is right. Werner-Quade commented that the last line after the comma says, "and be of a size that is in scale with the building and street scape as a whole." Werner-Quade commented that it does leave a little bit to be desired adding she is getting tired of these people who cannot interpret the simple, basic, plain English. Werner-Quade commented that if a problem arose, it would seem like those people would go before the TSH board and the Board would make a ruling as to the sign. Werner-Quade added that in her opinion you can find a loop hole anywhere you want but lets get down to plain English and read it and go with it. Bryson stated he would have to respond to that. Bryson stated if it were an issue with the building code and the city building inspector interprets it one way and you interpret it another way, do you feel you have a valid concern when it is ruled against you. Werner-Quade stated you can always go to a higher board adding she doesn't see why we have to specify every detail. Werner-Quade noted she doesn't see where the intent is that loose. Goecke stated he has to ask a question, Werner-Quade made mention if you want to put a sign there go to the Historic Board and see if this is okay. Goecke stated he doesn't know if the Board has any control of the matter. Werner-Quade stated she would correct that statement because she had said if there was a problem. Werner-Quade commented that Goecke is saying that there is going to be a problem with every sign. Goecke responded that he didn't say that but there is the possibility of that problem existing. Mahurin suggested in order to expedite this professionally, she would suggest that Ms. Werner-Quade's intent of her comments, were that if someone had a question that the TSH could interpret what their sign ordinance meant for anyone and would be available as a resource to people to answer those types of questions. Werner-Quade thanked Ms. Mahurin adding she was sure she had came across as curt. Glick clarified that if there was a problem you are saying that the TSH board would make a recommendation to P&Z. Werner-Quade noting she is not on the board so would not have every answer but would wanted to rebut the two comments made by two members about the verbiage being vague. Mahurin would like to bring this item back to the ordinance instead of trying to interpret each other questions but what the Commission is trying to do. Mahurin noted Planning & Zoning Commission Minutes Page 6 October 23, 1996 that what is before the Commission is an ordinance for a signage ordinance for Old Town. Mahurin stated she would like to call for question. VOTE: NORD YES CHRISTIAN YES WERNER-QUADE YES GLICK YES MAHURIN YES BRYSON NO GOECKE NO MOTION PASSED, 5-2. 7. NEW BUSINESS: a. Review of Title 14-Cabins Nord not sure what council is trying to get at but think they want us to make a determination on what definitions for cabin and cabin rentals. Nord added she is not sure if they want us to put limitations on size. Glick think this came about because of three cabins on lot and man wanted to rent them out. Councilman Smalley noted that was on James Street. Nord noted that was before she came to P&Z. Glick at this point we are to look at it, discuss it, and decide if there needs to be changes. Glick asked La Shot if staff had input. La Shot noted it has been a problem in the past. Because there is not a definition in code as to what a cabin is. The Land Use Table has a designation for cabins but we're not sure if an accessory structure or a principal structure. La Shot stated that from the administration's standpoint it needs to be cleaned up. La Shot added that there is a growing use of cabins in the city for not only recreational/commercial use but there are times people want to add to property as a secondary or accessory use. Werner-Quade commented she had gone over this again and again and what it boiled down to is this. Werner-Quade noted she had called the city attorney and cleared up a couple things. On the memo in the packet the problem seems to arise as referring in one instance as a cabin rental and next instances of cabin rentals. Werner-Quade stated that in the definition department of Title 14 we may need as many as three new definitions. One, a definition of cabin-Mr. Graves has it under the Collegiate Dictionary definition. Second would be cabin rental-that would refer to one cabin. And, third, cabin rentals-referring to more than one cabin. Werner-Quade explained the reason why is because when you start mixing rental in one paragraph and rentals in the next paragraph, you have a problem with singular and plural. In the Land Use Table, there are provisions for cabin rentals. In commercial, there is a provision for Planning & Zoning Commission Page 7 Minutes October 23, 1996 ~ hotels and motels. Werner-Quade noted that in the definitions, motel is about as close as you come to cabins. Werner-Quade reiterated that cabin needs to be defined. Werner-Quade stated she checked the FHA requirements for a dwelling since there is going to be some difference if the cabin is a dwelling or a cabin. Under FHA guidelines the minimum square footage to qualify as a dwelling, without a bedroom, is 310 square feet. Anything under 310 square feet would not qualify as a dwelling. Werner-Quade commented that Mr. Richmond's cabins being around 200 square foot each would not qualify as a dwelling, single family or otherwise. Werner-Quade commented they would have to be cabins. Werner-Quade commented that she knew it is hard to understand adding she will be getting a copy of the federal square footage requirements if anyone would like to look at it. Werner-Quade stated that in the end you would have a definition of cabin for anything under 310 square foot. Cabin rental-one cabin. You could continue with the dwelling definition. Cabin rental would be more or less the motel definition. Werner-Quade commented they could look at that and take out and add in anything under 310 square feet. Werner-Quade noted that in order to get a loan from FHA it has to be 310 square feet. Werner-Quade stated it ends up that the CUP would be for cabin rentals in an RR zone only and there would never be a CUP in an RS zone. Werner-Quade noted that is according to what we have now. Nord stated she had checked with Alaska Housing regulations for a dwelling and they have no square footage. Their regulation is if it is under 600 square feet they may require additional down payment. Nord noted they actually have no square footage regulations adding they are one of the toughest lenders to satisfy. Werner-Quade noted- the suggestion from the city attorney was to provide for what kind of a rental, nightly, monthly so that wasn't so vague and the square footage needs to be in there. Christian stated he would like to add that he thinks we do need to define each of these. It sounds like circumstances that a person may want to rent a cabin in summer for shorter time and longer in the winter. Christian stated that if that is true there is a need to define if this is a dwelling for long term or is this dwelling for weekly or daily. Fact of cabin rental or rentals needs to be defined noting that cabin rentals is in land use but doesn't fit with cabin rental, singular. Christian noted his agreement of the need to define all three. Goecke noted he understands where Christian coming from but the Commission may want to be concerned how we word this because if I have some apartments and you want to rent one of those apartments and don't require a lease you might be there a week, month, a year of months. Goecke stated as Ms. Nord stated with Alaska Housing not stipulating anything square footage wise, anybody's apartment could fall under this scenario. Goecke stated he understands but if we aren't ultra careful with wording everybody who owns apartments if they do not require lease could have a problem. Planning & Zoning Commission Page 8 Minutes October 23, 1996 Mahurin commenting that since City Attorney sat at council and has worked on this if the Commission should have him draft something that meets the needs and then discuss it at the next meeting. Glick asked the Commission if they agreed to have staff come back with that information and a resolution. Smalley asked if the Commission will you give him a specific list of items. Glick noted it would be based on the things discussed. Goecke stated if the secretary would give him a copy of what was discussed, that should be sufficient. Goecke noted that if something happens he will have to defend this. Mahurin added the fact that he was at the council meeting, heard discussion, heard the appeal, Mrs. Swarner brought it up and it is in the minutes, and as Goecke stated P&Z minutes will show our concern. Mahurin stated she would like to see something before the Commission and to work from there. Glick directed staff to bring something back to P&Z for review. b. Application for Lease-Lots 13 and 14, Block 1, C.I.I.A.P. GOECKE RECOMMEND APPROVAL THE APPLICATION FOR LEASE. MAHURIN SECONDED THE MOTION. Glick asked if there were additional staff recommendations. La Shot asked the Commission to note the recommendation that the approval be contingent on finishing up the environmental work. La Shot commented that is coming along quite well. Tony Blomfield, applicant spoke to the Commission. Blomfield noted that in talking with Kim Howard, she mentioned that it may be possible for the P&Z Commission to also approve, assuming that they approve the lease, the site plat at this time. Blomfield noted he understands that is a later requirement. Glick stated he doesn't see why we couldn't and asked the rest of the Commission how they felt. Christian commented that it looks as if you intend to have this done by next year. Blomfield commented this is a fast track job. Blomfield noted that within the RFP by the State of Alaska, they are requiring occupancy by July 1St. Blomfield added there is no penalty for late delivery, other areas of the document, once the award is made, allow for renegotiating to potentially change some items of the bid. Blomfield noted it is his understanding that the site would be turned over about the first of February. Blomfield stated they do not anticipate the award until probably the first of December. Blomfield noted they would be going through plan development in the months of December and January and would expect to break ground concurrent with the environmental clean up being complete. Blomfield stated they would allow four months to construct the facility. Goecke stated he had a question of staff. Is there a problem with approving the site plan tonight. La Shot stated only if there would be substantial changes that would come about during preliminary design. La Shot suggested they make a submittal for Planning & Zoning Commission Page 9 Minutes October 23, 1996 the site plan at the same time as building permit submittal. La Shot commented that since it is winter he didn't feel it would tie them up too much. La Shot added he wasn't aware that they wanted to ask for the site plan review tonight. Goecke asked if your site plan review be different than what you have proposed here on this site and parking plan. Blomfield stated they do not anticipate any changes. Blomfield added they would recognize that through normal building permit review adding he doesn't know if the city has a landscape review. Blomfield noted that at this time it shows the number of trees and landscaped areas but not specifically the type. Blomfield stated they would be agreeable to having the site plan review subject to a landscaping review. Blomfield explained the reason he is asking for this is that RFP states that offers which depend on gaining approval of zoning actions which are to be taken or approved after the closing date of this RFP will be rejected without further review. Blomfield stated that assuming that they get the approval on the lease, it is his opinion that that takes care of it. If the P&Z, at a later date has to review other items of the proposal, it may be brought up in a protest of the award and complicate the process not only for myself but for any other bidder. Blomfield noted for instance assuming that Carr Gottstein will be bidding the job in the old Carrs center, if that building is to be remodeled and is subject to Planning and Zoning review and they have not done that. They may not be eligible for aware. Blomfield stated he was wanting to assure himself that there is not a loophole available to a potential protester that may or may not catch this requirement. Goecke asked if it would be at this point prudent for us to decide whether this site and parking plan amongst the Commissioners is agreeable. Goecke asked if this is enough information for the rest of the Commissioners. Mahurin stated she had questions of the applicant and then they might satisfy her. Glick stated he would like the Commission to vote on the application for the lease and get that settled and then the Commission can decide on the landscape plan. VOTE ON APPLICATION FOR LEASE: CHRISTIAN YES BRYSON YES WERNER-QUADE YES GOECKE YES NORD YES MAHURIN YES GLICK YES MOTION PASSED UNANIMOUSLY. Glick noted that since the Commission is still under New Business the Commission could take up the Landscape/Site Plan review. Glick asked the wishes of the Commission. Planning & Zoning Commission Page 10 Minutes October 23, 1996 La Shot stated that from administrations point of view he does not believe there would be a problem with the landscape portion with the contingency that the administration verify adequate parking and draining at building permit submittal time. La Shot noted that offhand it looks adequate but staff has not have chance to review the plan as regards to code and space requirements. Goecke asked La Shot if he would want to include if the site plan is going to be different than what is here, that it needs to be submitted at that time? La Shot stated if there were substantial changes in this plan, he would request it be re-reviewed by the Commission. Blomfield stated he would have no objection to that adding that he would suggest that the Commission keep it loose and give staff a maximum amount of authority to request changes. Blomfield stated it was not his intent to tie the city or P&Z Commission or the staff to that plan it is just that the plan may be approved in concept subject to final approval by staff. Mahurin stated she understands what Blomfield is trying to do and would like to facilitate the plan. However, Mahurin noted that landscaping is a primary interest to her and feels as a Commissioner she has been stung by other businesses in the area. Mahurin stated she is not comfortable with not having something in front of her that is the final plan to vote on it. Mahurin noted she understands that Blomfield needs some latitude. Mahurin stated she can't vote on something that says it will be something like this but it is not. Mahurin stated she wanted to clarify her stance before asking questions. Mahurin stated Blomfield stated all non-paved areas will be landscaped. Mahurin asked what that means, grass? Blomfield explained that the perimeter of the building is bermed around the entire perimeter of the building about ten feet out and slopes up roughly three feet. The balance of the area will be planted in grass to coordinate with the adjacent courthouse building. The number of trees shown will be provided in a mix of both deciduous and evergreen at whatever caliper the Commission requests. Blomfield explained that typically they put inch and a half caliber on new construction projects. Blomfield stated they try to get completed landscape that looks like it has been there a number of years rather than planting to code minimum. Blomfield stated that this particular landscape plan has a $30,000 budget in the plan at this time and will keep it at a minimum and may elect to go higher. Blomfield explained that is the subcontract amount and does not include the general contractor's markup. Blomfield stated they have done a lot of new development and feel that that is an adequate budget for what they are trying to do and want it to complement the state courthouse. Christian stated he would like to echo what Mahurin said about landscaping being a problem. Christian explained if the Commission sounds overly picky it is because we do want to make sure it will look the way you say it is going to look. Planning & Zoning Commission Minutes Page 11 October 23, 1996 Blomfield stated if it is a problem to the council, he stated he doesn't think it is that important adding it just crosses one more "t" and dots one more "i" in my proposal. Blomfield stated he would be happy to put up a landscape bond it that satisfies the Commission. MAHURIN STATED SHE WOULD BE COMFORTABLE TO MAKE A MOTION TO APPROVE ASITE/LANDSCAPING PLAN INCORPORATING LA SHOT'S SUGGESTIONS UNDERSTANDING THAT THE PARKING IS SOMETHING THAT CAN BE WORKED OUT WITH STAFF BECAUSE THERE IS A CODE FOR THAT. MAHURIN, CONTINUING, AS FAR AS THE SITE PLAN, NOTED THAT WHAT SHE IS LOOKING AT IS WHAT SHE EXPECTS TO SEE. MAHURIN STATED SHE WOULD LIKE THE MOTION TO READ IF THERE IS ANY DEVIATION FROM THIS SITE PLAN, IT SHOULD HAVE TO COME BACK TO PLANNING AND ZONING. Blomfield noted the bid proposal includes curb and gutter around the paved area as a transition from paving to landscape. Again, Blomfield stated it is their intention to improve on the city courthouse landscaping. Blomfield noted that personally he feels they could have done a better job on the mix of trees. Glick asked Mahurin if that was a motion. Mahurin stated in a vague way. GOECKE SECONDED THE MOTION.. Mahurin stated she would like to say she is pleased and excited about the development with what is going in there. Mahurin reiterated Mr. Christian's statement that they are supportive of the project. Blomfield advised that this is going to be a very difficult job to get with new construction and the type of facility they are offering. Blomfield stated they do have some advantage in that they are awarded extra points for quality. Nonetheless, there are existing buildings adding they do not expect to be the low bidder but expect to prevail once price and extra points are awarded. Blomfield reiterated there is no guarantee. Chairman Glick asked if the Commission understood the motion. VOTE ON LANDSCAPE/SITE PLAN: CHRISTIAN YES BRYSON YES WERNER-QUADE YES GOECKE YES NORD YES MAHURIN YES GLICK YES MOTION PASSED UNANIMOUSLY. Planning & Zoning Commission Minutes Page 12 October 23, 1996 8. OLD BUSINESS: a. PZ96-60-Landscape/Site Plan Review-Tract 4-B-4, (Pad "C") Cook Inlet Industrial Air Park Subdivision GOECKE MOVED TO BRING PZ96-60 BACK BEFORE THE COMMISSION. MOTION SECONDED BY CHRISTIAN. Glick asked La Shot if there were additional staff comments. La Shot noted there was additional information in packet and that Mr. Norville was in attendance to answer questions. Christian noted that one of his biggest concerns when this was first brought up was what will be seen from the highway. Christian noted the first plan had a fence between the highway and the building. Norville asked if there was a site plan available to put up to use as a visual aide? Norville explained the design has been changed. The original design split face facing the shopping center. It was changed so the front of the building was all blocked. Christian asked for clarification on which was the front and was advised the part facing Carrs. Norville explained that development today, if you look at power centers, being where you have two or three major stores, you access through the front rather than through mall, and satellite stores around. Norville advised he has been building for 30 years and you have to make it convenient for the customer. Ideally you would put the parking in front where it would be convenient for the customer and facing the Spur Highway. Because of the depth of lot have to make it convenient for the customer and for the tenant. So, the entrance will be facing the east and west. Norville advised there will be two tenants in this building. And, the entrance facing the center because that is where the parking will be. Norville reiterated that you have to make it convenient for the person coming in. Christian stated that didn't answer his question and asked if anything has changed as far as what is facing the highway. Christian stated his concern is what will be seen when driving through town. Norville stated it has changed from the original plan in that it had a fence in the front. Christian clarified he was talking about the back and Norville stated the portion facing the Spur Highway. Norville stated it is split-faced and there is a fence in the middle on the portion facing the Spur Highway to shelter the electric and mechanical that will be there. Norville stated it is split-faced and there will be a small fence and that is just the configuration of the building. Norville stated they chose to put it there rather than facing the side. Christian stated that is the problem that he has adding it is serious to him because I don't want it to be ugly driving through town. Christian stated if there is an electrical Planning & Zoning Commission Page 13 Minutes October 23, 1996 ~ thing, a fenced off area, or a dumpster as I drive through town that is what I will see. Norville stated he doesn't build ugly buildings. Norville added it will be attractive and is being build for the convenience of customers and so the tenants can do business. Norville stated the entrances have to be adjacent to the parking. Christian stated he doesn't have a problem with that and you can have entrances where you want. Christian stated he has a hard time seeing that as something that will enhance the area. Norville commented he felt it would be attractive. Christian stated he thought he would have to see it adding they don't have a large amount of vegetation to block. Norville stated the land in front is owned by the state so subject to what they do. Norville showed plan on the bulletin board and explained plan and building. Norville commented there will be a fence but that it will not make it look like a back yard. The original plans had a black wall and without some of the windows. Norville stated he had had the same concerns that the Commission has so had the architect make changes. Norville showed that and commented that the fence is in this small area. Norville commented there is a problem, where do you put the dumpster. If you put it here, here, or here, it will be visible. Norville stated they felt they found the best place, least objectionable would be here. Christian asked how do we get to it. Norville showed how traffic would flow. Christian questioned what kind of fence? Norville stated he believed it was cedar but would have to look at the plans. Christian questioned how high. Norville stated he thinks 6 feet. Goecke noted that was the Commission's big concern last time around was the fact of that fence, we had no idea how tall the fence would be or what would be there. Goecke stated they had pretty much surmised that that is where the dumpster would be and that we have the problem with. That being the case, that is why this was dropped and put on hold. Goecke continued, in looking at your plan and I know why you are doing what you are doing, I don't know that you said that you would be able to drive through there. Goecke noted with a dumpster you will not be able to drive through. Goecke stated you have plans, or hopefully, to go on either side on those pads and develop those too. Goecke asked if any thought given to putting your dumpster between these pads and letting them share, or is it your idea, or does your lessee pay for own trash removal. Norville noted there is a driveway between each pad. Norville stated it wouldn't be safe or practical to have them cross over a driveway and you must be careful and it must be enclosed. It is a problem but where do you put the trash. Norville reiterated they felt the best way to treat it would be to finish off the front and make it look like the rest of the center and put the dumpster where it would service both stores. Goecke asked if that was the plan to have one dumpster for two stores. Norville stated from a practical and aesthetic point, it makes sense. And, from the standpoint of the Planning & Zoning Commission Minutes Page 14 October 23, 1996 } tenant and the convenience of the customer it makes much more sense. Goecke commented that he feels a lot more comfortable this time than I did last time. Norville noted that when the center is completed it will be over 300,000 square feet. Norville stated they feel it will be the destination center of the peninsula adding they want to make sure it is done correctly. Mahurin noted she was not at the last meeting adding she had read the minutes and had been listening carefully. Mahurin stated she still has a lot of concerns. Mahurin stated she thinks it is great all of the trees but thinks it would better if they were facing the Spur Highway. Mahurin stated she has seen many businesses in Anchorage and other cities noting she has traveled extensively that could certainly do landscaping facing the Spur Highway and fence in a very attractive way a dumpster some place in the parking area that doesn't have to be facing the Spur Highway. Mahurin noted that there has been extensive road and grass and bicycle paths put in. Mahurin stated she is very concerned with this building facing Spur Highway as it is. Norville stated that as a developer you have to develop in a practical way. Norville stated he thinks the building will be nice adding he doesn't care where you put the dumpster you will have to put fence. Norville added he thinks they have the best solution. Norville added one more thing about the state noting that he has met with them twice and has asked permission to improve that area. Norville stated he is very concerned about how that looks but doesn't own that property and can only ask permission and if they don't want to do anything and won't let him do anything, there is nothing he can do about it. Mahurin noted she wasn't saying she was concerned with state property. Mahurin stated she is concerned that trees go this way and nothing going this way. Mahurin stated she understands that you are looking at it from developer's standpoint adding she is looking at it from a perspective that she is here to do a best job for the city. That is to encourage business but at the same time maintain a comfortable environment that they have tried to maintain. Mahurin asked Norville not to think not she in favor of development. Mahurin stated that at this point she cannot see herself voting yes for this site plan. Goecke, speaking to Mr. Norville, you've stated that you have talked to the state about doing something out there. Goecke stated he thinks there is some concern adding he doesn't necessarily share this anymore, wonder, talking about a six foot fence, 12 feet long. Norville stated he would have to go through the plans. Goecke stated it doesn't really matter. Goecke asked staff, if he thinks it would be possible to get permission from the state and outside of that fence, though it is on state property, if there could be four short trees, that don't get too tall, planted to block that fence. Goecke noted this is j the main concern. Norville, stated he would have no problem with that. Goecke stated he understands that but does the state have a problem. Goecke asked Norville, as a developer, see yourself putting trees on state property. Norville stated not without permission. Goecke stated his question is to staff if they could help get permission to Planning & Zoning Commission Page 15 Minutes October 23, 1996 put four trees on there. La Shot stated he can't speak for the state. La Shot stated he felt a motion from the Commission lending support to the issuance of a permit for Mr. Norville to do some landscaping in the state right of way in front of the building would be reasonable. La Shot stated that since completed the project that what is between bike path and the property is scrub brush. La Shot stated he felt they would be sticky because if anything out there is subject to removal because if a utility needs to go through there. La Shot added he felt that some reasonable landscaping is something they can live with. Norville stated that is very subjective as the person at the state he had spoken to thought it was beautiful. He said leave it the way it was. Norville added he would do everything he could to put trees in there. Norville stated he wants the Commission to know this would look nice. GOECKE AMENDED THE MOTION TO HAVE STAFF CONTACT THE STATE IN MR. NORVILLE'S BEHALF OR THE COMMISSION'S BEHALF OR GET PERMISSION TO PLANT SOME TREES TO COVER UP THAT FENCE THAT HE DESIRES TO PUT THERE ON THE OTHER FRONT OF THE BUILDING. NORD SECONDED THE AMENDMENT. Mahurin questioned if we approve the site plan contingent on something the state might do and the state doesn't do it, where does that leave us. Mahurin noted that leaves an approved site plan with a fence and dumpster facing the Spur Highway. Smalley stated that was exactly his concern adding that perhaps word should be to encourage. Smalley stated that perhaps staff should present comments and concern of this body to the state. Smalley stated he didn't think the Commission can pass something that neither the city or developer have any control over. Smalley added they could probably say to encourage the allowance of the ability to plant those trees and present the concept in writing and the comments to the state. Christian questioned the use of the word trees adding perhaps something else would be more appropriate like a bush. Christian commented that a lot of times you plan a tree and two years later it is dead. Christian suggested use vegetation or landscaping rather than word trees. Christian suggested that maybe they could just mound it up and grass it over, that would be permanent. Something that would have vegetation rather than trees. Mahurin bring attention back to motion which says we approve the site plan and ask the city for help to assist with landscaping on state land. Mahurin noted she agrees with the term landscaping. Mahurin reiterated that if we approve it and the state says no, we still have it as is. Norville noted the code specifies what the landscaping should be adding he is meeting all the requirements of the code and to require me to go on someone else's property I don't think would be fair. Mahurin noted that is what she is saying. Norville stated Planning & Zoning Commission Minutes Page 16 October 23, 1996 they would do anything to make it possible but if the state says no, there is nothing they can do. Mahurin stating she is not saying that we should, instead, she is saying that if that happens and we have already approved your site plan and the state says no. Then, the Commission cannot expect you to do this but the site plan would remain as is. Mahurin noted she is just making the point to the Commission. Norville stated he was making the point that we do meet code. Norville stated that if aesthetically it is not what you think it should be, we can improve it. Norville added he can see no reason why they would say no. Christian is there anyway we could find out about this in a short time, perhaps at the next meeting. Mahurin commented that she hate to be lobbied by other Commissioners. Bryson stated he would like to clarify his comments noting we are only talking 40 feet. Bryson asked how many trees do we get in 40 feet. VOTE ON AMENDMENT: CHRISTIAN YES BRYSON ABSTAIN WERNER-QUADE NO GOECKE YES NORD YES MAHURIN YES GLICK YES AMENDMENT PASSED. Christian asked Norville where they intend to sign the building? Norville stated the restrictions that he places on his tenants in the center are more restrictive than the city's code in terms of type, color, size. Norville noted he didn't bring a copy of a lease but it sets out more requirements. Christian stated he would like specific answer and questioned if they would be on poles? Norville noted they are not allowed poles by code. Norville stated there will be black lettering on the face of the building. They will be individual signs. Norville stated he didn't have the dimensions but the lease specifies size. Christian clarified they will be on the building and no other signs outside. Norville stated he didn't believe they were allowed additional signs. La Shot stated he thinks they may have used up the square footage on that site. La Shot noted the type of signs Norville is describing are not regulated as signs. That type of sign on the wall goes with the building. Norville commented that signage is extremely important to him. Mahurin asked Norville who will be leasing the sites and if it is being revealed? Norville stated he is not revealing it but it will basically be fast food and video. VOTE ON MAIN MOTION AS AMENDED: Planning & Zoning Commission Minutes BRYSON ABSTAIN GOECKE YES MAHURIN YES GLICK YES MOTION PASSED. Page 17 October 23, 1996 WERNER-QUADE NORD CHRISTIAN YES YES YES Mahurin stated she would like to comment to Mr. Norville noting he has heard the comments about landscaping adding Mr. Smalley has written me notes saying you are reputable. Mahurin noted she is doing something that is hard, that being she is trusting. Mahurin commented she likes to shop in this center but could go elsewhere. Mahurin stated she didn't mean that as a threat but would be watching. Norville commented he lives in this community adding he is a hands-on developer. 9. CODE ENFORCEMENT ITEMS: 10. REPORTS: a. City Council Councilman Smalley noted a copy of the agenda in packet with notes. Vice-Mayor Measles reelected. The city of Kenai donated the old ambulance to the community of Ninilchik. Smalley stated he remembers when he taught there and they bought a Korean "meat" wagon as their first ambulance and they were elated. To them it was in equal value as the $125,000 Kenai has. Under public comment, a young man spoke from Cook Inlet requesting the use of aluminum bleachers from the softball field until they get their bleachers. This was approved conditional upon determining the ownership of the bleachers as they could have been purchased with softball funds. This is being researched. The city is also requesting an attachment on their insurance rider and they will be responsible for transporting and returning the bleachers. Ordinances, C1 was the potential aluminum floats that the city looking into purchase. Upon inspection it was determined it was not that they are not what the city wanted. The minimum fine ordinance on the improved rights of way within the city, primarily the bike paths to Swires, restricting motorized vehicular traffic and setting the fine to go with it. Smalley reported that the fine remained at $100 minimum conditioned upon repair of damage to any grass lands or structures that may be there. It was amended it to allow the state or the city or a contracted entity to enter the right of way for purposes of snow removal and/or maintenance. Smalley advised this item brought about quite a bit of discussion. Planning & Zoning Commission Page 18 Minutes October 23, 1996 ~ Mahurin stated she thought the previous ordinance said as long as you were going to an approved right of way or path you could ride on it to get there. Smalley the only thing that has been changed is improved rights of ways. Glick asked if that means in front of our houses where we have planted between private property and the city's paved street, even though it is city property, we maintain it. Does the city consider that improved rights of way. Smalley stated he believed the city could in fact ticket. Ordinance 1721-96 was bringing code into line. Item four, is the donated ambulance. Item five, declared surplus the Mack fire engine which the petroleum tech center has been taking care of it anyway. This was a mater of taking care of the paperwork to turn it over to them. Item 6, the warm storage building got a new door. Alaska Municipal League dues were paid. The League runs from the 16th to the 20th of November at the Sheraton. Smalley stated he believed half of the council plans to be there. Item 8, is the new hopper spreader to be placed on the new dump truck. They will take the one off the Mack and put in on the other one so the city has another sander/spreader. All council members were kept on the same committees if we wished to remain there. Comment concerning the P&Z item of the last meeting of the HOP in Inlet Woods. When these HOP permits it was requested that administration clarify it in the code when neighbors be notified because the code doesn't require it. Smalley stated that this was something for the Commission to think about. Presentation of the Beautification Committees of the banners. Smalley asked Nord to explain what had transpired since she is also a member of the Beautification Committee. Nord explained they had contacted the Art Guild. The Guild agreed to put together a plan and use some of the local talent. Nord explained the costs and that the banners have been tested extensively. Nord commented they are very nice. Smalley stated the plan is fora 3 year time frame to purchase 30 each year. The first 30 will be $125, $25 for rights to use the design. They will go up when ready. Nord stated they should be ready by May 1St. If something should go wrong, we don't have to send them away. Nord stated they are guaranteeing them for three years. Smalley commented this celebrates our own local artists. Smalley stated to clarify for the record, the Art Guild has a $1 lease for that facility from way back when and it has just been renewed. The Challenger steering committee had a luncheon and meetings held with the Alaska Aeronautical Commission who was in town. They gave a nice presentation of the facility in Kodiak. This was in between step. Smalley advised the Chancellor was very excited and the group is extremely active and able to put forth some grant funding to j send lobbyist to Seattle for a day to visit the center in Seattle so they can have a hands on and know exactly what it is. Smalley noted there is a big push to get funding through grant and corporate funding. Planning & Zoning Commission Page 19 Minutes October 23, 1996 ~ There was discussion of the Kenai River Restoration Enhancement Project on the south side of the river. Smalley stated if you go to the last cannery, Inlet Cannery, the road that goes out there and dead ends. That is a city street. The city is looking at either prior to that going at angle out to the beach creating a parking facility where they could walk or drive down and drive on the beach. This would require permits to go through the wetlands. Another way would be to go extending right straight off that road and put parking lot at the end. They don't need to drive on the beach. To encourage them not to do that. It would be easier to place garbage and sanitation facilities on the top. There is quite a bit of grant money that is available and the major portion should be funded by grant. Under New Business, Sanders who was denied the setback at P&Z will present to Board of Appeals on November 6th. The reason why this was set so soon is the gentleman will be out of town and the December meetings are shaky and it met the code by being advertised. Smalley advised he talked with the council about the concept of the gravel bed road behind Lawton to Beaver Creek to the back side of Thompson Park to be considered as a bike path and to look into paving it. DOT is interested in it so when it does work on a roadway improvement they could put a bike path over there rather than on the highway. It would require a thicker coating of asphalt because city uses road. Nord asked Smalley to talk a little about what Mayor was asking Joe Moore to talk to the Airport Commission about bringing jets back in. Smalley stated they were talking about the concept of what if, added they had had jet traffic in the past. Concept from those days from the airlines that they needed four people to get off and on in Kenai. That may have escalated some. Concept is tha there are a lot of carriers between Anchorage and Seattle. Because the Kenai runway will handle it to look at Kenai being a destination again. This would require some modification to building because of security. A different type of jet would have to come to the city that would have a door that would drop down with a ramp or they would have to have ramps here. The Airport Commission will be investigating this possiblity. Christian asked if we will get information when this happens. Clarification as to when the Airport Commission meets again. Group discussion about airport noise from jets. Smalley advised the boat launch facility area brought in about $16,000 from the $5 launches. The dipnet fishery, as a cost to the city for maintenance, extra police patrol, use of Parks and Rec. summer help, etc. came to approximately $10,000. This was a much lower figure than had been anticipated. Well number three is enclosed. Planning & Zoning Commission Minutes Page 20 October 23, 1996 i Christian asked if something came up that the city is going to start supporting buy locally. Nord stated that was regarding the banners and the statement in the newspaper was misleading. Discussion about the airport rental car vacancy space and if it should remain vacant. At this time, moot, because no one has asked to go in there. Discussion about putting coffee in there, cannot do that because of the restaurant lease. Evaluation of city clerk which was a very good evaluation and her salary increased from $52,000 from $49,000. b. Borough Planning Bryson reported there was a meeting on October 14th agenda is in packet. Bryson stated it was a long meeting and also hit the 12:30 time for completion of the meeting. All items from A through H-4 were approved and then the meeting started. Item H-5 was an appeal of the planning director's decision. Involved an existing gravel pit, adjacent property owners contested the decision with information. Bryson stated from his feeling very good information. The appeal was denied 7-2. Item H-6 was another appeal concerning a gravel pit, denied 8-1. Negotiated land sales, 7-A was approved. 7- B in Point Possession area was recommended denied. Item 7-C approved. Item 7-D was the option to purchase property which the borough has not received clear title was recommended to be denied. Item 8 recommended to approve setting up advisory commission in Kasilof/Clam Gulch area. All plats approved. Item J-1 applicaton for CUP for Poacher's Cove for construction of car port. Item J-2 approved. Proposed Commission meeting concerning a materials site ordinance. c. Administration La Shot stated that concerning the request from a member of council to consider public hearing, would the Commission like that as a discussion item at a future meeting. Commission stated that would be a good idea. Bryson asked if the request was to have the adjacent properties notified or to have a public hearing. Smalley said notification adding he would assume that would be the request because they would probably want to give testimony. La Shot noted it does make a difference if we send notification after the fact. Regarding the discussion on the airport jet service that we do have a Master Plan which is nearing the draft stage. In talking with the consultants, it is felt public hearings best after the first of the year due to the holidays. La Shot stated that would be a good time to provide input on any issues dealing with the master plan of the airport. ~ Mahurin asked who will hold the hearings? La Shot stated it will probably be a joint Airport Commission and Planning Commission and one at council. Planning & Zoning Commission Minutes Page 21 October 23, 1996 La Shot did pass out a letter about some upcoming public hearings concerning the update of the Kenai River Special Management Comprehensive Plan in draft stage. 11. PERSONS PRESENT NOT SCHEDULED: 12. INFORMATION ITEMS: a. Kenai City Council Roster b. Kenai River Special Management Area Advisory Board minutes of September 19, 1996 c. November & December Meeting Schedule Memo 13. COMMISSION COMMENTS & QUESTIONS: Mahurin noted this has been an interesting P&Z meeting tonight. Interested to hear about several things. Glad to hear about the city purchasing the 30 banners at $100 which should pay for the roof. Mahurin noted she was interested about the Airport Commission and jets. Appreciate that La Shot already picked up on the HOP adding she didn't realize that neighbors weren't notified. Goecke stated that through the years this body has done a pretty good job, an excellent job, of doing what we thought was best for the city. Regarding this HOP thing, nobody has said where it comes from, nobody had to say. Maybe what we should have also is a public hearing if somebody wants to rent out an apartment that is supposed to be a mother-in-law apartment. Nord advised she will be out of town for the next P&Z meeting at the National Association of Realtor's Convention in San Francisco. Nord stated that regarding the HOP thing agrees there needs to be some input but don't think that a public hearing is necessary. Would have to look at it a little more. Nord would have loved to comment on some of things at the Borough P&Z. Nord questioned why they would deny the lease on 60 acres. Bryson stated the rationale was that it was separated from other properties in the borough adding he is not sure if the borough has clear title either. Christian would like to address the public heairng aspect and notification of neighbors. Maybe not for each individual unit. Christian commented that when someone has a proposal for a piece of land, that people in the neighborhood might know that it is being planned until after it is approved. Christian stated he feels we may not be doing our job. Would like to have us look to see if we could pursue this further. Werner-Quade apologized to the Commission regardin the TSH sign code. At the last meeting, Ms. Mahurin had asked for further information on variances and advised she has some information from law offices in Anchorage. Kenai is a home rule city so we have our own Title 14, nonetheless, this infomration is valuable so will pass it on for next packet. Werner-Quade asked if any of the Commissioners have gone to the restaurant in Old Town and noted it was a nice experience. Planning & Zoning Commission Page 22 Minutes October 23, 1996 Smalley concerning the request that you made of Mr. La Shot to bring someting back from the discussion. Smalley noted another individual also placed a concern because of small children. Some time when you approve a HOP there could be storage of materials or other dangerous materials stored. Concern was that we would like to know so if there is an objection, there is an avenue where they would be noified so if there was a concern so it could come public rather than after the fact. It wasn't an objection to this particular one but wanting to know. Goecke stated he understands what you are saying; however, you said large trucks coming on a regular basis. That is no different than where I live or on Gill Street where apartments are and trucks come and move people in and out. Goecke stated he thinks we have done a good job of making sure that on any HOP that we make sure there is not an excessive amount of traffic. Think this concern isn't valid. Smalley not that one person, several people on the council that weren't aware that it wasn't in the code. Goecke advised his wish that from my standpoint you would tell your fellow council members we feel we are doing what we believe is the best and have the welfare of the citizens in the best interest. 14. ADJOURNMENT: MEETING ADJOURNED AT APPROXIMATELY 9:12 p.m. Respectfully Submitted: Marilyn Kebschull Administrative Assistant ~</ / C~., STAFF REPORT To: Planning & Zoning Commission Date: October 23, 1996 Prepared By: JL/mk Res: PZ96-70 GENERAL INFORMATION Applicant: Whitford Surveying 1902 Wyatt Way Kenai, AK 99611 Requested Action: Preliminary Plat Approval -Radar Subdivision No. 2 Legal Description: Resubdivision of Tract "C" Radar Subdivision-Replat No. 2 Existing Zoning: IL-Light Industrial Current Land Use: Light Industrial -Tract C-2 Undeveloped -Tract C-1 ANALYSIS City Engineer: This plat splits the existing Tract "C" into two Tracts-C-1 and C-2. No installation agreement needed. No water and sewer available. Building Official: No building code issues. RECOMMENDATIONS Approval. ATTACHMENTS: 1. Resolution No. PZ96-70 2. Preliminary Plat CITY OF KENAI PLANNING AND ZONING COMMISSION RESOLUTION NO. PZ 96- 70 SUBDIVISION PLAT A RESOLUTION OF THE PLANNING AND ZONING COMMISSION OF THE CITY OF KENAI RECOMMENDING THAT THE ATTACHED SUBDIVISION PLAT BE APPROVED SUBJECT TO THE FOLLOWING CONDITIONS: WHEREAS, the attached plat Radar Subdivision No. 2 as referred to the City of Kenai Planning and Zoning Commission on October 21, 1996 and received from Whitford Surveying ,and WHEREAS, the City of Kenai Planning and Zoning Commission finds: 1) Plat area is zoned IL-Light Industrial and therefore subject to said zone conditions. 2) Water and sewer: Not Available 3) Plat does not subdivide property within a public improvement district subject to special assessments. 4) Installation agreement or construction of improvements is not required. 5} Status of surrounding land is shown. 6) Utility easements, if required, shall be shown. 7) Plat must verify that no encroachments exist. 8) Street names designated on the plat are correct. 9} CONTINGENCIES: NOW, THEREFORE, BE IT RESOLVED, BY THE PLANNING AND ZONING COMMISSION OF THE CITY OF KENAI THAT THE KENAI PENINSULA BOROUGH PLANNING COMMISSION APPROVE RADAR SUBDIVISION NO. 2 SUBJECT TO ANY NEGATIVE FINDINGS AS STATED ABOVE. PASSED BY THE PLANNING AND ZONING COMMISSION OF THE CITY OF KENAI, ALASKA, DECEMBER 11 , 1996. J .~ Q~C HAIR ARSON TEST: Planning Secretary _ti .~ .t x a ~ ,, ~~ i q ': y ,. - V i} ~ ~ ' 'F ,.. Y r , 4 i _ , f ' .~ F kkq~' ~?~' l ' -" ,: l~. ~ ~.~,. ~~s ~:~,~~~,.ax ~~' ~ , ~' S ~,_ i I''` r ,i. a ~ ,~~ ' 4~{ ~Ql, : r .r . sir, ' k ~~ ~ ~a°~~ ~o~, ~~~~ C ~ e .. O F c•Q u74 ~s~~~ •~~sb'' ~~$#~ e`o.~~ ~~~~~ ~~ !g I~ r~ ( I p~ i,7 V w IP ~~ 1 i $ i ~~ ~ ~ ., °I ~~ I r I a o I , gv ° I. ~ ~ Y ~ I ~ FE ~g~ i ~ ~ sE° I I]SS°({ yyI a5 O c ~ i i K 6 ~ O V ~ ~ ~ WC ~ kpsks C° Q I I~ O ~ O~ < 8 I ~ i r I r. ~,6 ~ 1 I~Z `s~ I ~4~ <_ W 2~ r ~ i~z ~~a ~' ac N i r..... ~ n ------~__ r. pm~ ~ ~ ~ +~ N °;.: ~~ ~ r.rrsre s. no.so.o w r . ~ » 1 .cz•ccs ~.«.ca.eo N ~,_ ___1 gfv3___. __ _ _ _ _-- ~ I ____ i __.. „~ .. ALllll(1 OI m ;,' n T n I g n~ I_---- = I _ $ -_. ~`!~~' ~ ~ I ° 3.L0r i0Y.00 3nv vIA04'~~. 1' I rv ~. I it i + 1 ~I N C1~ .1 ' ~I ~ a ~l, ~ : .~ t ~' I\ ~ / ~ r'', '8 °'' ° ^I F ,o :. I ti ., ' ~ I o 0o E ~ ~ Y 3.00 i . ~` ~~y ~ w ~ k 9 3 C ~ •y.: c P _n ~ r. ions e. so. soa r i, ~ ~ / - F r, ._ . / ~~ . / ~C \ ~ ~ o NORTY~ v _~ c r- f ~_ ~ 1 I. / T ~~ ~ s ~ v i ~ ~,; . ~ ~ ° .S ~l'~r''-.. .rF.. ~..~~.. .: .Ir ;t: STAFF REPORT To: Planning & Zoning Commission Date: October 31, 1996 Prepared By: JL/mk Res: PZ96-72 7~ GENERAL INFORMATION Applicant: Laverne Arthur Braun 2795 Watergate Way Kenai, AK 9961 1 Requested Action: Home Occupation Permit Legal Description: Lot 22, Block 1, VIP Park Estates Lots 19-32, Block 1 Existing Zoning: RR-Rural Residential Current Land Use: Low Density Residential ANALYSIS City Engineer: The applicant wishes to operate a beauty/hair dresser shop at the referenced location. This use is consistent with the KMC. Building Official: Applicant is required to get a final inspection, once this building is complete, at which time an as-built survey will be required. RECOMMENDATIONS Approval. ATTACHMENTS: 1. Resolution No. PZ96-72 2. Application 3. Drawings CITY OF KENAI PLANNING & ZONING COMMISSION RESOLUTION NO. PZ 96-72 HOME OCCUPATION PERMIT A RESOLUTION OF THE PLANNING & ZONING COMMISSION OF THE CITY OF KENAI GRANTING A REQUEST FOR A HOME OCCUPATION PERMIT AS AUTHORIZED BY 14.20.230 OF THE KENAI ZONING CODE, FOR: BEAUTY/HAIR DRESSER SHOP located 2795 WATERGATE WAY, LOT 22, VIP PARK ESTATES and to be operated by LAVERNE ARTHUR BRAUN WHEREAS, the Commission finds: 1. That an application meeting the requirements of Sec.14.20.230, has been submitted and received on October 30, 1996 . 2. That the application has been reviewed by the Commission at their meeting of November 13. 1996 and found that all application requirements have been satisfied. 3. That the applicant has demonstrated with plans and other documents that he can and will meet the requirements and conditions as specified. 4. That the following additional requirements have been established by the Commission as a condition of permit issuance: a. Applicant is required to get a final inspection once the building is complete, at which time an as-built survey will be required. NOW, THEREFORE, BE IT RESOLVED, by the Planning & Zoning Commission of the City of Kenai that the applicant has demonstrated that the proposed development meets the conditions required for said proposal and therefore the Commission authorizes the permit. PASSED by the Planning & Zoning Commission of the City of Kenai, Alaska, this 11th day of December 1996. A E T: Planning Secretary Chairman 1791-1991 ~~ ~~ ,~_ ~_ ~ ___ _ ~ N ~~ Date: /6 30 ~ ~l~ CITY OF KENAI ;L G'~i~~ o~ ~I~i~ „ 210 FIDALGO KENAI, ALASKA 99611 a TELEPHONE 283-7535 IQl FAX 907-283.3014 j } 4/J( v r HOME OCCUPATION PERMIT NAME : ~Av~ J~,v~= /¢/LtN UR ,d R,at.( ~/ PHONE ~d 7 az~3 .~sv ~- ADDRESS: ~7%~ ~,/.g~r/~ ~~-~/= W!~~ , /('~.yaL /F!f SSG / LEGAL DESCRIPTION OF PROPERTY: j/JJ~ ~.4~Ji for" '°E Z ~ DESCRIPTION OF OCCUPATION: Section 14.20.230 of the City of Kenai Municipal Code outlines regulations which allow Home Occupations in residential zones, subject to the following conditions: PLEASE READ THE FOLLOWING, COMPLETE THE BLANKS AND INITIAL THE SPACE AFTER THE ITEM NUMBER TO INDICATE THAT YOU HAVE READ AND UNDERSTAND THESE CONDITIONS. 1, ~ Not more than one person outside the family shall be employed in the home occupation. 2. ~ No more than 30% of the gross floor area of all buildings on the lot shall be used for the home occupation. Please submit site plan with square footage and area clearly marked where business will take place. 3 , ~ The home occupation shall be carried on wholly within the principal building, or the buildings which are accessory thereto. Any building used for a home occupation shall be wholly enclosed. Wil is development require a building permit? YES NO (circle one) Applicant's Signature: ~ Approved: / U`~'E CHAIRPERSON T EST: Date : ~~ / ~'I v/ P ~f4 R IZ h 6T Z Zi ~ ~~u / ~~ ~ S Y - a9 - ~, ~~ ' ~5~' ¢, ~'~pa WiN~~ ~ Kenai K~~°' S 83'2620" W 91.07' 50 Flood io LOT 22 49,595 S.F. BLOCK ~- Top of Bank I I W = i~ I Existing I M N House N N ' N N . n I I o u FE I Z' a w u •w N '~ tT l e v r ~ in I v ~°~ e I 0~`~ // 24' u u v ,U, // in M o `o '/ n I `~~~~~~\\111 P,~~ OF A(qs ~~I ~. ~ ~ %*~ 49~~ 9*~i ~...n ......~..........% ~.....,.. Gn",,,, ~ 'F~; •. M. SCOTT McLANE:' ~ _~ ~_ i!) ~~ a, 1" = 60' 0 N E I1=[;FND AND_NOTES ~ Found 5/8" Rebar • Found 1/2" Rebor Septic Vent W 0 Well in () Indicates Record Dotum 'd' I~ -0 Meter Pole ;n M ~ 1) The bearings and distances shown hereon Z relative to the property boundaries were derived from doto of record. 2) This drawing depicts preconstruction conditions as identified by the owner or builder and will not suffice as an as-built representing post construction activities. 15' a 25' Front Yard o ~- ~ ~ 7.00 Building Set Back M R=2040.00' WATERGATE WAY 60' R/IN PLOT PLAN I hereby oerll/y thot I haw Orepared o plot plan far the foYOwing LOT 22 BLOCK ONE V.I.P. PARK ESTATES LOTS 19-32. BLOCK ONE __ locates in the - KENAI _J2ecortling Dlstrkt. Alaska. Dated: May 25, 1993 AlcLone anand Associoles ------ Registered Lond Surveyors 7h Memorandum Date: 11 /06/96 To: Planning & Zoning Commission r.. From: Marilyn Kebschull, Administrative Assistant RE: MEMO DATED 10/23/96--COUNCIL MEETING SCHEDULE JANUARY 8, 1997 P&Z MEETING LOCATION The attached memo from Clerk Freas outlines information regarding council meetings for November and January. The Council's change of their meeting date from January 1 to January 8, 1997 will necessitate P&Z meeting in a location other than council chambers. I have confirmed that the library conference room and Senior Center are both available. WHERE WOULD THE COMMISSION PREFER TO MEET? Attachment CITY OF KENAI ~ 210 FIDALGO AVE., SUITE 200 KENAI, ALASKA 99611-7794 TELEPHONE 907-283-7535 FAX 907-283-3014 __ MEMORANDUM 1 I I (I! ,~z TO: ALL CONCERNED FROM: Carol L. Freas, i Clerk City of Kenai DATE: October 23, 1996 RE: COUNCIL MEETING SCHEDULE CHANGE November Council Meetings: Because a majority of members of the Kenai City Council will be attending the AML Conference in Anchorage November 20-23, 1996, the regularly scheduled November 20 council meeting has been changed to November 13, 1996. The packet day for the November 13 meeting will be November 8 -- same deadline, etc. as any normal council meeting packet day. Remember, Student Government Day has also be set for November 13. I will forward more information about the students, etc. when I receive it. . anuary Council Meetings: Because January 1 falls on the first Wednesday of the month, which would be the regularly scheduled council meeting date, the first council meeting of January has been changed to January 8, 1997. Packet day for the January 8 meeting will be January 3, 1997. If you have any questions, please contact me. clf ~~ Memorandum Date: 10/31 /96 To: The Planning & Zoning Commission From: Marilyn Kebschull, Administrative Assistant`~ RE: NOTIFICATION ON HOME OCCUPATION PERMITS The following information is provided in response to your request for additional information on notifying neighboring property owners when Home Occupation Permits are issued. As far as I can determine, the code requires notification only for items requiring a public hearing. Home Occupation Permits are issued to permit occupations within residences that are secondary or incidental to the residential use of the main residence. Quoted from the code, "In general, a home occupation is an accessory use so located and conducted that the average neighbor, under normal circumstances would not be aware of its existence other than for a sign as permitted in this chapter." A copy of this section of the code is attached. Under the current guidelines, a Home Occupation Permit does not require a public hearing, carries no fee to the applicant, and can be accepted up to one week prior to the next scheduled meeting. Conditional Use Permits are issued for uses which may be compatible with principle uses in some zones and in general may draw more attention than an occupation as allowed as a Home Occupation. Conditional Use Permits require a public hearing, carry a fee of $105, and must be received no later that 14 days (will be changed to 21 days in 1997) prior to the next scheduled meeting. A copy of this section of the code is attached. KMC 14.20.280 Public Hearings and Notifications governs public hearing notification requirements. The code requires that notice be published twice in the newspaper, the first publication not less than seven days prior to the scheduled meeting. In addition, every property owner within a 300 foot periphery of the affected parcel be notified via certified mail. A copy of this section of the code is attached. Attachments licensed by the State of Alaska. (21) Roof sisn is a sign erected upon orabove a roof or parapet of a building or structure. (22) Sisn means any words, letters, parts of letters, figures, numerals, phrases, sentences, emblems, devices, trade names, or trade marks by which anything is made known, such as are used to designate an individual, a firm, an association, a corporation, a profession, a business, or a commodity or product which are visible from any public street or highway and used to attract attention. (23) Sign structure is a structure which supports or is capable of supporting any sign as defined in this Code. A sign structure may be a single pole or poles and may or may not be an integral part of a building. (24) Temporary sien is any sign, banner, pennant, valance, or advertising display constructed of cloth, canvas, light fabric, cardboard, wall board, or other light materials, with or without frames, designed to be displayed for a limited period of time only. (25) Wal is anwith the a ch ~t face of the sign inra plane parallel to th of a building or structure, po plane of the said wall. (Ords. 961, 1052) 14.20.221 Penalties: In addition to the penalties by KMC 14.20.260, signs in violation of this chapter shall be subject to forfeiture. (Ord. 961) 14.20.230 Home Occupations: (a) Intent. It is the intent of this chapter to permit home occupations which are compatible with other permitted uses and with the residential character of a neighborhood, and which are clearly secondary or incidental to the residential use of the main building. In general, a home occupation is an accessory use so located and conducted that the average neighbor, under normal circumstances would not be aware of its existence other than for a sign as permitted in this chapter. Home occupations are permitted accessory uses in residential zones only so long as all the development requirements listed in this section are observed. (b) Uses Permitted. Subject to the development requirements of this section, home occupations include, but are not limited to, the following uses: (1) Art studio. (2) Day care of no more than eight children under the age 12, including children related to the caregiver. (3) Dressmaking. (4) Millinery. (5) Beauty parlor. (6) Tutoring and musical instruction. (c) Uses Prohibited. (1) Commercial auto and boat repair. (2) Commercial kennels or similar uses. (3) Convalescent homes for the care of more than two patients. ,\ ~. S69-09/01/95 14-46 CITY OF KFNAI ~a~ (4) Mortuaries. (5) Private schools with organized classes. (6) Real estate office. (7) Restaurants. (d) Development Requirements. (1) Not more than one person outside the family shall be employed in the home occupation. (2) No more than thirty (30%) percent of the gross floor azea of all buildings on the lot shall be used for the home occupation. (3) The home occupation shall be carried on wholly within the principal building, or other buildings which aze accessory thereto. Any building used for a home occupation shall be wholly enclosed. (Ords. 925, 1456) 14.20.240 Mobile Homes: (a) No mobile homes may be installed for use in the City `1 of Kenai for public, commercial, or assembly purposes after the effective date of this - ordinance. (b) No mobile home may be stored outside in the City of Kenai in a residential-zoned area after the effective date of this ordinance. (c) Mobile homes for residential use may be established only in mobile home pazks as permitted in the Land Use Table. _ (d) Mobile homes which were installed prior to the effective date of this ordinance in conformance with applicable building code regulations in areas where now prohibited and used for residential purposes or stored outside may have such use continued indefinitely, Pxcept that such trailers shall not be replaced if destroyed or removed. (e) Mobile homes utilized on bona fide construction sites for offices, storage, or other _,. ,~ such purposes may be so used anywhere within the City Limits on the construction job they serve, but shall be removed immediately upon completion of said construction. (Ords. 925, 1017, 1155, 1419) 14.20.245 Recreational Vehicles: (a) Recreational vehicle parks may be allowed by conditional use permit as provided by the Land Use Table. Prior to issuance of a recreational vehicle park conditional use permit, the pazks shall meet the following conditions: (1) Adequate utilities for projected or actual use shall be available. (2) The projected or actual use shall not threaten the health and safety of adjoining landowners or recreational vehicle users in the pazk. (3) Any and all specific conditions required to comply with Subsections (a)(1) and (2) as determined by the Planning and Zoning Commission shall be met by the applicant. (b) Maintenance of Pazks: Recreational vehicle parks aze not to become a nuisance to surrounding properties. Recreational vehicle parks shall control dust, shield lighting from other properties, prohibit loud noises and maintain a clean and orderly appearance free from refuse. (c) Revocation of Permit: The conditional use permit may be revoked by the ~!57-10/18/91 14-47 CITY OF KENAI _- _ _ _ __-- ----_ - N~ ~~ (1) Boardwalks; (2) Parking -not to include large trucks or trailer vans; ~ (3) Essential services (as defined in KMC 14.20.320(b)(28); (4) Watchman or caretaker dwelling. (d) Conditional Uses and Structures: (1) Boat harbors, docks, wharfs, launching ramps; {2) Bunkhouses, bed & breakfasts, hunting & fishing lodges; (3) Fuel facilities for river boat traffic; (4) Convenience or grocery outlets; (5) Marinas, including boat rentals; (6) Aquaculture; (7) Charter or guiding services; (8) RV parks; (9) Multi-family units; (10) Hotels; (11) Restaurants. (e) Prohibited Uses and Structures: Any use or structure not of a character indicated under permitted principal use or conditional use shall be prohibited. (f) Minimum Lot Requirements: Shall follow the requirements for the Rural Residential (RR) Zone, including the 100' setback from slopes, bluffs, or banks as described in the Comprehensive Plan, Coastal Zone Management Plan, and Kenai River Special Management Area Plan. (g) Required Off-Street Parking and Loading: Adequate off-street parlang and loading shall be provided in connection with any permitted use in accordance with the provisions of KMC 14.20.250. (h) Signs: Signs may be allowed in conformance with KMC 14.20.220(g). (Ord. 89-1343) 14.20.150 Conditional Uses: (a) Intent: There are some uses which may be compatible with principal uses in some zones if certain conditions are met. The Commission shall permit this type of use if the conditions and requirements listed in this chapter are met. Before a conditional use permit may be granted, the procedures specified in this chapter must be followed. (Ord. 1504-92) (b) Conditional Uses in All Zones: (1) Uses not specifically permitted in the zone concerned may be permitted provided that the following conditions are met: [i] Such uses must be similar to principal uses permitted in the zone; [ii] Such uses must be in harmony with the intent of the zone. (2) Development and extraction of natural resources which can be mined underground without substantially disturbing the surface of the land may be permitted together with the necessary buildings and apparatus, provided that the following conditions are met: [i] The benefits to the City in terms of economic development must S64-07/16/93 14-29 CITY OF KENAI outweigh any adverse effects on adjoining properties; [ii] A sight-obscuring fence or uncleared buffer strip of good appearance acceptable to the Commission shall be provided between such uses and all adjoining residential zones and all adjoining public rights-of--way. (3) Surface extraction of natural resources may be permitted provided that the standards are met and the procedures set out in this chapter are followed. The usual procedures for conditional use permits contained in this chapter shall not be applicable to conditional use permits for the surface extraction of natural resources. (c) Procedure: (1) An application for a conditional use permit shall be filed in writing with the administrative official and verified by the owner of the property concerned. [i] Application shall contain the following data with respect to the property and the applicant: (A) Legal description of the property involved; (B) Plans showing the location of all existing and proposed buildings or alterations, elevations of such buildings or alterations, and such data as may be required. (C) Anon-refundable depositladvertising fee of $100.00. (2) The public hearing and notification procedure for a conditional use permit application shall be accomplished in accordance with the requirements of this chapter. (3) An approved conditional use permit shall lapse twelve months from the date of approval if the nonconforming use for which the conditional use permit was approved has not been implemented. The Commission may grant a time extension not to exceed six months upon a finding that circumstances has not changed sufficiently since the date of initial permit approval. A request for extension must be submitted prior to expiration of the permit. A public hearing shall not be required as a condition to granting the extension. (Ords. 925, 987, 1460) (d) Revocation: (1) The Planning & Zoning Commission, after public notification and hearing, may revoke a conditional use permit if it finds the permit holder has violated a provision of the Kenai Municipal Code, including but not limited to the provisions in Title 7. A decision by the Commission on revocation may be appealed to the Boazd of Adjustment pursuant to KMC 14.20.290. (Ord. 1549-93) (2) A person whose conditional use permit is revoked under this section may reapply for a permit under KMC 14.20. The Planning & Zoning Commission or Board of Adjustment may consider the prior revocation when determining whether to grant the new conditional use permit. (Ord. 1549-93) 14.20,151 Apulication for Conditional Use Permit for Surface Extraction of Natural Resources: An application for a conditional use permit to engage in the surface extraction of natural resources shall be in writing on a form supplied by the City of Kenai and shall be filed with the administrative official, along with the requisite fees. All applications shall be accompanied by the following documents and information: S64-07/16193 14-30 CITY OF KINAI P `, .~ ~ ,. 14.20.280 Public Hearinss and Notifications: (a) pant r This section governs all this P red b y ublic hearings held by the Commission as requi be ublished twice in P Notice of the public heanng shal p i `~'~ ce: (b) Public Hearing Not l circulation within the City. The first notice shall be published w ., a a r of enera he follo P ~ g The notice shall contain at least g seven ('n days prior to the date of hearing. information: (1) A brief description of the proposal on which the public body is to act; ~"~~` (2) A legal and common description of the property involved; (3) Date, time, and place of the public hearing; (4) Person and pla t more odf ~~~orement'oned newspaper n ct A c ificat o (c) property Owner No oPy tion shall be sent by certified mail to real property owners on record on the borough n if i . ica o not assessor's records within a 300-foot periphery of the parcel affected by the proposed act the date of hearing. When a t i or o This notice shall be mailed not less than ten (10) days pr n ha be held about a proposed zoning ordinance amendment involving a c t i e~ o n o s public hearing in the text or major district boundary changes, no notification of neighboring property t least three public places. (Ord. 925) d i n a shall be required, but notices shall be displaye 14.20.290 Anneals -Board of Adiustment: (a) Appeals fmm decisions of the Commission must be sub h l n rt i e administrative official or t c y Cou d b the Kenai C be hear within thirty (30) days of the decision. The appeal shall y acting as the Board of Adjustment. Procedure: b ( ) w for andHo` (1) The Board of Adjustment shall se he eash ould t ever f the appeals within thirty (30) days of the filluig o PPS ma be scheduled eekend or a municipal holiday, the hearing y thirtieth day fall on a w for the next following weekday which is not a municipal holiday unde shall be lace of such hearing and i h p me e t 23.40.020(x)(1)-(10) and (b). Notice of t iled to all parties interested and to all property owners within 300 feet of the ma property involved at least ten (10) days prior to the hearing. (Ord. 1650-95) d t Board of A th i e~ , e ng, (2) Within thirty (30) days after the hear the Board r a decision on the appeal. In exercising the above-mentioned po d e ren the order, of Adjustment may reverse or affirm, wholly or partly, or may modify ht to b termination as oug d i m p e on or s t requirement, decision or requirement, decis aken. nd shall have all the powers of the body t h r e a and to t the ublic and the Board shall to (3) All meetings of the Board shall be ope p easons for its decision, and th i i e r on, s keep minutes of its proceedings showing its dec f each member upon each question. Said minutes shall be made a public the vote o record. (Ord. 925, 1554-93) 14.20.300 Anneal to Superior Court: An appeal from any action or decision of the Board of Adjustment may be taken by any person to the Superior Court as provided by state law and applicable ordinances. (Ord. 925) S69-09/01/95 14-58 CITY OF KENAI r ~(~ AGENDA RENAI CITY COIINCIL - REGIILAR MEETING NOVEMBER 6, 1996 7:00 P.M. RENAL CITY COIINCIL CSAMBERB http://www.Renai.net/city BOARD OF ADJIISTMENT HEARING - Appeal of Delmar Sanders A. CALL TO ORDER 1. Pledge of Allegiance 2. Roll Call 3. Agenda Approval 4. Consent Agenda *All items listed with an asterisk (*) are considered to be routine and non-controversial by the Council and will be approved by one motion. There will be no separate discussion of these items unless a Council 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. B. SCHEDIILED PIIBLIC COMMENT (10 Minutes) 1. Ginger Steffy/Kathy Scott - Trip Report/1996 ASTC Conference, "Touching Minds and Changing Futur~" C. PIIBLIC~ ]38~~INGB ~~g~ ~~ 1. Ordinance No. 1723-96 Revised Comprehensive • Recommending Adoption ~~~ ~ 2. Ordinance No. 1724-96 and Appropriations by Lobbyist Services. 3. Resolution No. 96-84 ~y~d ~ " Kenai ARFF Capital Pr - Approving and Adopting the Plan for the City of Kenai and by the Kenai Peninsula Borough. - Increasing Estimated Revenues $24,000 in the General Fund for - Transferring $10,000 in the oject Fund for Travel. 4. •1996-97 Liquor License Application - Old Town Village Restaurant. D. COMMIBBION/COMMITTEE REPORTS 1. Council on Aging 2. Airport Commission -1- 3. Harbor Commission 4. Library Commission 5. Parks & Recreation Commission 6. Planning & Zoning Commission 7. Miscellaneous Commissions and Committees a. Beautification Committee b. Historic District Board c. Challenger Steering Committee d. Kenai Visitors & Convention Bureau Board E. MINIITES 1. *Regular Meeting of October 16, 1996. 2. *Work Session of October 14, 1996. F. CORRESPONDENCE G. OLD BII8INE88 H. NEW BIISINE88 ~ ,. ,ice( 1. Bills to be Paid, Bills to be Ratified ~ ,~?r,-~~~'~'CP 1~ 2. ~ Purchase Orders Exceeding $2, 500 . ~~ 3. *Ordiaance No. 1725-96 - Increasing Estimated Revenues and appropriations by $3,750 in the General Fund for the Purchase of Banners. 4. *Ordinance No. 1726-96 - Amending the Kenai Municipal Code 14.20.220 to Establish Signage Requirements Within the Townsite Historic District Zone. 5. *Ordiaance No. 1727-96 - Amending the Kenai Municipal Code 14.20.105(k) to Conform with Kenai's Sign Code. 6. *Ordinance No. 1728-96 - Increasing Estimated Revenues and Appropriations by $3,228 in the Airport Land System Special Revenue Fund to Purchase a New Computer. . ~~°~~~ Approval - Application for Lease - Lots 13 & 14, Block u~~ ~~ ~~~ 1, Cook Inlet Industrial Air Park/Tony Blomfield, d/b/a The Blomfield Company. 8. Approval - Amendment to Professional Services Agreement ~~/~~' Between City of Kenai and K. Scott & Associates, Inc./Alaska Challenger Learning Center Study. -2- ~o,~/~' 9. Approval - Petition to Vacate the Entire of Sockeye ~/ Circle Public Right-of-Way and Associated Utility Easement as Dedicated and/or Granted by Oberts Pillars Subdivision Part One (Plat 95-32 KRD); Section 7, T5N, RlOW, Seward Meridian, AK. 10.. Discussion - Capital Improvement List. EBECIITIVE SESSION - None scheduled. I. ADMINIBTRATION REPORTS 1. Mayor 2. City Manager 3. Attorney 4. City Clerk 5. Finance Director 6. Public Works Director 7. Airport Manager J. DISCIISBION 1. Citizens (five minutes) ~ 2. Council R. -3- KENAI PENINSULA BOROUGH PLANNING COMMISSION BOROUGH ADMINISTRATION BUILDING '~i ASSEMBLY CHAMBERS SOLDOTNA, ALASKA OCTOBER 28, 1996 7:30 P.M. Tentative Agenda A. CALL TO ORDER iob i r J0h" ~'~°~"~" B. ROLL CALL ChaMman AroavNds Tam e~lres 1999 C. APPROVAL OF REGULAR AGENDA AND ADOPTION OF CONSENT AGENDA Promo Bryson 1(~ ICtCtakrntn All kerns on the consent agenda are considered routine and noncontroversial by the Planning Tam F-~rss 1996 C~ ~ X11 be approved by one motion. These will be no separate discussion of these kerns unless a Planning Commissioner or someone from the public so requests, in which case the kern will be Ann Whlbrloro-Pak6er P removed from the consent agenda and considered in ks normal sequence on the regular agenda. arNementarhn Moose Pass Aron If you wish to comment on a consent agenda kern or a regular agenda kern other than a public hearing, Term E~Irss 1997 pl~se advise the recording secretary before the meeting begins, and she will inform the Chairman of your wish to comment. Pep®y t3. Boscacd Pc Msn~eer 1. Time Extension Requests Seldovis Cky Tam Ems 1997 a. Almas Acres No. 2 ' ~-~ KPB File 95-160 [Terry Eastham] Pc Msmbsr sevvaM cky Location: Oilwell Road Tsrm F~Ires 1999 b. Blakley Part 10 Robsrt ca,9s P C KPB File 95-130 [McLane Consulting Group] A, x,hor Location: Cooper Landing Tenn F~lres 1996 c. Channel Shores Grubber Addn P~ ~ . KPB File 95-148 (McLane Consulting Group] soldotrw cky T~Tn ewes 1s99 Location: Kenai River, east of Kalifomsky Beach Road, ~ y northeast of the college PC Member Honor aky 2. Plats Granted Administrative Approval Tsrtn E~Iros 1996 eNis Hensley, Jr. 3. Plats Granted Final Approval Under 20.04.070 PC Member Nudeld 4. KPBPC Resolutions Terre Explros 1999 arent.lohnson a. Smith-Slater Tracts -Vacate non-dedicated Togiak Street Pc Manba and utility easements within unplatted Tracts; KPBPC TE des 1997 Resolution 96-43: Vacating non-dedicated right-of--way Togiak Street and non-granted utility easements within Ta+r+ ~noac unplatted tracts within Section 30, Township 5 North, Pc Member ~ Range 9 West, Seward Meridian, Alaska. Kenai Recording T F ro lase District; KPB File 96-135 ~~, 5. Coastal Management Program Consistency Reviews a. Coastal Management Program 1) Homer; Kachemak Bay 53, Airport Approach Lighting System Replacement; Federal Aviation ~ Administration; AK 9610-03AA 2) Seldovia; Seldovia Bay 70, Barge Loading Facility; Seldovia Native Association; AK 9610-01AA b. Conclusive Consistency Determinations Received from DGC c. Administrative Determinations -None 6. Kenai River Hwbilat Protection (KI~13 21.18) a. Ted & Pauline Jackson Board of Adjustment Appeal 7. Commissioner Excused Absences a. Wes Coleman b. Tom Knock 8. Minutes a. The October 14, 1996 minutes will be on the November 13 consent agenda. D. PUBLIC COMMENT AND PRESENTATIONS (Items other than those app~ring on the agenda. Limited to three minutes per speaker unless previous arrangernents are made.) E. UNFINISHED BUSINESS 1. Planning Commission Work Group Regarding Material Site Ordinance 21.13 2. Formation of a Plat Committee 3. Petition to vacate section line easement within Lots 26 and 35, Greening Vista Subdivisions. Section 2 and 3, Township 6 South, Range 13 West, Seward Meridian, Alaska. Homer Recording District; KPB File 96-152; Carried over from September 9, 1996. F. PUBLIC HEARINGS 1. Vacate the portion of a dirt road, adjacent to Island Lake within Lot 8, North Kenai Subdivision; Section 12, Township 7 North, Range 12 West, Seward Meridian, Alaska. Kenai Recording District; KPB File 96-189 [Integrity Surveys] z ,,, 2. Vacate Forestline Drive and Aspen Drive and associated utility easements; Forestline S/D and Cory Comer S/D; Sec 9, T5N, R9W, S.M., Alaska; KPB File 96-191 G. VACATIONS NOT REQUIRING A PUBLIC HEARING -None H. SPECIAL CONSIDERATIONS 1. P/W Bruhn, Ronald L. 8 Virginia Iverson KPBPC Resolution 96-44: Granting a platting waiver to certain lands within Section 14, Township 5 North, Range 8 West, Seward Meridian, Alaska Kenai Recording District; KPB File 96-216 2. Waugh S/D -Exception to PC Res 88-02 -Note & Affidavit Kenton Bloom (Surveyor)/Jack Cushing(Engineer) KPB File 96-023 3. Exception to KPBPC Resolution 88-02 - Note ~ Affidavit Integrity Surveys a. Schlereth S/D Sanders Addn KPB File 96-187 b. Valerie Acres -Selby Replat KPB File 96-196 c. Gentles S/D #2 VanDeusen's Replat KPB File 96-197 d. Chumley Tracts KPB File 96-204 e. Kimbrel S/D Winn Replat KPB File 96-161 f. Old Mill S/D Addn #4 Replat KPB File 96-134 g. Ryan S/D Richmond Replat KPB File 96-183 h. Binkley Airport Tracts Nordic Trading Replat KPB File 96-160 i. North Kenai S/D Harrison Replat KPB File 96-189 4. Establishing regulations for subdivision wastewater disposal; final draft ordinance Chapter 20.14 CONSIDERATION OF PLATS 1. Taeschner S/D; Caswell Road Preliminary; Ken Branch KPB File 96-207 2. Puffin Acres; Kachemak City Preliminary; Ken Branch KPB File 96-208 3. Coyote Creek S/D; Oilwell Road Preliminary; Segesser Surveys KPB File 96-209 4. Byrd S/D Rocky's Replat; Lamplight Road Preliminary; Segesser Surveys KPB File 96-210 5. Schlereth S/D Sanders Addn. Robinson Loop Revised Preliminary; Integrity Surveys KPB File 96-187 6. Timberland Terrace; Ciechanski Road Preliminary; Integrity Surveys KPB File 96-212 7. Chumley Tracts; Sterling Highway/Robinson Loop Preliminary; Integrity Surveys Postponed from Gctober 14, 1996 KPB File 96-204 8. North Kenai S/D Harrison Replat; Island Lake Preliminary; Integrity Surveys KPB File 96-189 9. Tesch S/D; Oilwell Road Preliminary; Johnson Surveying KPB File 96-211 10. Opportunity Acres No. 1; North Kenai Preliminary; Replat Lots 3A-31 into Tract A Douglas A. Stark KPB File 96-213 11. Opportunity Acres No. 1; North Kenai Preliminary; Replat Lots 1A-1 H into Tracts 1A & 1 B Douglas A. Stark KPB File 96-217 12. Marathon Addn to Seward Lot 1A; Seward City Preliminary; R & M Consultants KPB File 96-214 13. Bayview S/D No. 8; Homer City Preliminary; Roger Imhoff KPB File 96-215 14. Gerhart Homestead S/D 1996 Addn; Soldotna City Preliminary; McLane Consulting Group KPB File 96-202 J. KENAI RIVER HABITAT PROTECTION (KPB 21.18) Application for Conditional Use Permit Under Ordinance 96-06; Lot 29, Block 6, Castaway Cove Subdivision Amended; River Mile 15 Left bank; to construct a cabin within fifty feet of ordinary high water of the Kenai River, Parcel No. 055-253-07; Jarecki; KPBPC Resolution 96-45 2. Application for Conditional Use Permit Under Ordinance 96-06; Tract A, M.L. Stewart Homestead Subdivision; River Mile 14 Right bank; to replace a travel trailer with a utility shed within fifty feet of ordinary high water of the Kenai River, Parcel No. 057-680-10; Stewart; KPBPC Resolution 96-46 3. Application for Conditional Use Permit Under Ordinance 96-06; Lots 2 8 3, Block 1, Bos'n Landing Subdivision Part 1; River Mile 31.5 Right bank; to construct a privacy fence within fifty feet of ordinary high water of the Kenai River; Parcel No. 063-560-20 8~ - 19; Martow; KPBPC Resolution 96-47 4. Application for Conditional Use Permit Under Ordinance 96-06; Lot 6, Block 2, Kenai River Salmon Run Subdivision Part 2; River Mile 41.6 Left bank; to locate a satellite dish within fifty feet of ordinary high water of the Kenai River, Parcel No. 066-210-03; Burkevich; KPBPC Resolution 96-48 5. Application for Conditional Use Permit Under Ordinance 96-06; Lot 1, Block 3, Kenai River Salmon Run Subdivision Part 1 Amended; River Mile 41.6 Left bank; to locate a satellite dish within fifty feet of ordinary high water of the Kenai River, Parcel No. 066-190-06; Kolasinski; KPBPC Resolution 96-49 K. COASTAL MANAGEMENT PROGRAM CONSIDERATIONS -None L. OTHER/NEW BUSINESS M. ASSEMBLY COMMENTS N. DIRECTOR'S COMMENTS O. COMMISSIONER COMMENTS P. ADJOURNMENT PLEASE NOTE WORK SESSION A work session is scheduled for 5:30 p.m. October 28, 1996 to be held in the Assembly Chambers. The topic is draft waste water regulations. Surveyors, civil engineers, and other interested parties are welcome to attend. The next regularly scheduled Planning Commission meeting is WEDNESDAY, November 13, 1996 at 7:30 p.m. in the Assembly Chambers at the Borough Administration Building in Soldotna. DECEMBER 16, 19961S THE ONLY MEETING THE PLANNING COMMISSION WILL HAVE IN DECEMBER. MISCELLANEOUS INFORMATIONAL ITEMS NO ACTION REQUIRED 1. Kenai Planning 8 Zoning Commission October 9, 1996 Minutes 2. Kachemak Bay Advisory Planning Commission October 17 Agenda, October 3 Minutes, Correspondence Regarding the Proposed Animal Control Ordinance 96-39 3. Soldotna Planning & Zoning Commission October 16, 1996 Minutes Octa~~er/IVo~e~nl~ier Meet'~% C7C~: Z$ KPB Planning Commission ~ 7:30 p.m. OC.t 29 Borough Assembly ~ 7:30 p.m. IVO'V. 4 Funny River Advisory Planning Commission ~ 8:00 p.m. Nd'V. 5 Anchor Point Advisory Planning Commission ~ 8:00 p.m. IVO'V. 7 Kachemak Bay Advisory Planning Commission cLD 7:00 p.m. IVO'V. 12 Borough Assembly ~ 7:30 p.m. IV O'V. 13 Cooper Landing Advisory Planning Commission ~ 7:30 p. m. IVO''V. 13 Borough Planning Commission ~ 7:30 p.m. 1Vd'V. 14 Moose Pass Advisory Planning Commission cLD 7:00 p.m. IV O'V. 21 Kachemak Bay Advisory Planning Commission @ 7:00 p.m. IVO'V. 25 Borough Planning Commission ~ 7:30 p.m. NO'V. Z 6 Borough Assembly cLD 7:30 p. m. 6 Peapy Bosesod SsldoNs Term E~I~ 1987 ~~~ c~,~ Tsnn Explros 1998 ENk Hensley, Jr. NNdsM Tsnn E~Ins 1999 Ann Whlbnore-Pekrtsr Moose Pass Aree Tenn Expkes 1997 John Herrwrbkrrsn Areswkls Tsnn F~k+es 19®8 Brant Jolxison Keslbf Aros Term E~k+es 1997 KENAI PENINSULA BOROUGH PLAT COMMITTEE BOROUGH ADMINISTRATION BUILDING PLANNING DEPARTMENT SOLDOTNA, ALASKA WEDNESDAY, NOVEMBER 13, 1996 5:30 P.M. Tentative Agenda A. CALL TO ORDER B. ROLL CALL C. AFPROVAL OF Ai;ENDA D. CONSIDERATION OF PLATS r~,, ~~ L4~._~ 1 (.~~ ~t~6B7 ~~ ~w HOV a ~~ aE'Z ZZ tiZ~~~~ 1. Norman Subdivision No. 2; Bear Creek, north of Seward Revised Preliminary; Johnson Surveying KPB File 96-173 2. Happy Valley Acres Wilson Addn. Lot 6A & 7B Happy Valley; Preliminary TWA Surveying KPB File 218 3. Star of The North S/D, Kenai City Preliminary; McLane Consulting Group KPB File 96-219 4. Tulin East Highlands Resubd. Lots 5-14 North of Homer; Preliminary A~ilitf, Cr,~r:gy'g KPB File 96-220 5. Mission Estates; Kenai City Preliminary; Whitford Surveying KPB File 96-221 6. Tallarico S/D Chumley Addn; southwest of Scout Lake Loop Preliminary; Whitford Surveying KPB File 96-223 7. Monfor S/D No. 2; Salamatof Lake Preliminary; Whitford Surveying KPB File 96-224 ~~ k,~ r~ ~'~ ~. ~~o 8. Marina S/D Block 2 Replat; Seward City Preliminary; Integrity Surveys KPB File 96-075 9. North Kenai S/D Harrison Replat; North Kenai Revised Preliminary; Integrity Surveys KPB File 96-189 ADJOURNMENT The next regularly scheduled Plat Committee meeting is November 25, 1996 at 5:30 p.m. in the Planning Department at the Borough Administration Building in Soldotna. A. John HammsNnan B. Chabrran AroawkJs Term t.a~Nas 1999 C. Bryson vacs CI>ahrr~n ICenal City Term 1998 Ann Moose Pees Aras Tenn t.xpkss 1997 Peery G. Boscacd PC Member sekbvfs cry Tenn Explree 1997 w.~ms ~ PC Member reward city Tsrtn E~kbs 1999 Robert CNkts PC Member Anchor Point Tsrtn E~tros 1998 was Cobman PC Member Sokkitria Cky Term E~kbs 1969 PC Member Horner Cky Tenn F~Iros 1998 Plbs ~ , Jr. NNckld Tenn 1969 t3rorrt Johnson PC Member ICaskof Area Term E~hbs 1997 Tom Knock PC Member ~ Cooper t.ending Tenn F~kss 1998 KENAI PENINSULA BOROUGH PLANNING COMMISSION BOROUGH ADMINISTRATION BUILDING ASSEMBLY CHAMBERS SOLDOTNA, ALASKA WEDNESDAY, NOVEMBER 13, 1996 7:30 P Tentative Agenda CALL TO ORDER ROLL CALL /hZ3456 >8g'Q, upy 199e16~ of Kenn ~ planning tom, of ~~~ ~:zrr~°ti APPROVAL OF REGULAR AGENDA AND ADOPTION OF CONSENT AGENDA AN kerns on the consent agenda are considered routine and noncontroversial by the Planning Commission and will be approved by one motion. There will be no separate discussion of these kerns unless a Planning Commissioner or someone from the public so requests, in which case the kern will be removed from the consent agenda and considered in ks normal sequence on the regular agenda. If you wish to comment on a consent agerxia kern or a regular agerxia kern other than a public hearing, Please advise the recording secretary before the meeting begins, and she will inform the Chairman of your wish to comment. 1. Time Extension Requests -None 2. Plats Granted Administrative Approval 3. Plats Granted Final Approval Under 20.04.070 4. KPBPC Resolutions -None 5. Coastal Management Program a. Coastal Management Program Consistency Reviews - None b. Conclusive Consistency Determinations Received from DGC c. Administrative Determinations 6. Kenai River Habitat Protection (KPB 21.18) a. Board of Adjustment Memorandum 7. Commissioner Excused Absences a. Phil Bryson 8. Minutes a. October 14, 1996 1 MNte Nsvan+s, Meyer ua Pari~r b. October 28, 1996 PlanNnp ~~ ~' ,~ D. PUBLIC COMMENT AND PRESENTATIONS ~° ~ (Items other than those a ~ ppearing on the agenda. Limited to three minutes per speaker unless previous a ~ arrangements are made.) x ;~ ~ =< ~* E. ~ ~ UNFINISHED BUSINESS ;. ,~,, ~ a 1. Establishing regulations for subdivision wastewater disposal; final ~~,, ~ draft ordinance Chapter 20.14 F; ,,;, ,r~, .~ PUBLIC HEARINGS °~a..,. 1. Vacate portion of Lowell Street between First Avenue and the easterly boundary of Lot 4A, Marathon Addition to Seward Townsite, Part 2; and vacate utility easements. Section 9, Township 1 South, Range 1 West, Seward Meridian, Alaska; within the City of Seward; KPB File 96-214 [R8M Consultants] 2. Vacate portion of Knight Dlive public light-of--way and associated utility easement; and vacate aright-of--way easement. Gefiart Homestead and Gefiart Homestead S/D No. 2, (Plat 74-105 KRD). The utility easement proposed for vacation, also being the northerly ten feet of said Tract 4A was granted by Gerhart Homestead Subdivision No. 2 (Plat 79-158 KRD). All being within the City of Soldotna, within Section 29, Township 5 North, Range 10 West, Seward Meridian, Alaska; KPB File 96-202 [McLane Consulting Group) 3. Permit Application Pursuant to KPB 21.13.040 for a Gravel Site; Anchor Point; Nightwatch Three Subdivision, Tract 1A; Sec 31, T4S, R14W, S. M.; Jones G. VACATIONS NOT REQUIRING A PUBLIC HEARING 1. Vacate the westerly 32 feet of the ten foot wide utility easement within Lot 2D-1, Block 4, McCaughey Subdivision No. 5; KPBPC Resolution 96-51; KPB File 96-225 ti. SPECIAL CONSIDE ATiONS 1. McCaughey S/D No. 5, Lot 2 D-1, Block 4; Building Setback Exception, KPBPC Resolution 96-52; KPB File 96-222 2. Noble Acres S/D No. 2; Exception to Planning Commission 10/14/96 Decision; KPB File 96-198 3. P/V1/ Covey, Roger and Karen; KPBPC Resolution 96-50: Granting a platting waiver to certain lands within Section 3, Township 2 South, Range 12 West, Seward Meridian, Alaska; KPB File 96-226 4. Exception to KPBPC Resolution 88-02, Note & Affidavit; Ken Branch; Taeschner S/D, KPB 96-207 1. CONSIDERATION OF PLATS 1. Preliminary plats will be reviewed by the Plat Committee. J. KENAI RIVER HABITAT PROTECTION (KPB 21.18) 1. Application for Conditional Use Permit Under Ordinance 96-06 to construct a security gate within fifty feet of ordinary high water of the Kenai River on Lot 9, Block 2, Kenai River Salmon Run Subdivision Part 2; River Mile 41.6 left bank (KPB Parcel No. 066- 210-06): Becker; KPBPC Resolution 96-53 K. COASTAL MANAGEMENT PROGRAM CONSIDERATIONS -None L. OTHER/NEW BUSINESS 1. Planning Director's Decision; 21.13.160 Prior Existing Use a. Gagnon's Acres Subdivision, Lots 1, 2, 3 and 5; Section 6, T7N, R11W, S.M.; Ross M. ASSEMBLY COMMENTS N. DIRECTOR'S COMMENTS O. COMMISSIONER COMMENTS P. ADJOURNMENT WORK SESSION A work session is scheduled for 5:30 p.m. WEDNESDAY, November 13, 1996 to be held in the Assembly Chambers. The topic is draft waste water regulations. Surveyors, civil engineers, and other interested parties are welcome to attend. The Plat Committee will meet at WEDNESDAY, November 13 at 5:30 p.m. in the Planning Department to review preliminary plats. The next regularly scheduled Planning Commission meeting is November 25, 1996 at 7:30 p.m. in the Assembly Chambers at the Borough Administration Building in Soldotna. MISCELLANEOUS INFORMATIONAL ITEMS NO ACTION REQUIRED 1. Notice of Planning Commission Decision; Appeal of Planning Director's Decision; Prior Existing Use; land Use Permit for A Sand, Gravel or Material Site; Ciechanski Site; Phillips 2. Notice of Planning Commission Decision; Appeal of Planning Director's Decision; Prior Existing Use; land Use Permit for A Sand, Gravel or Material Site; East Poppy Lane, Bremond ~~~cK l 2~ KENAI PENINSULA S®R®UGH 144 N. BINKLEY SOLDOTNA, ALASKA 99669-7599 BUSINESS (907) 262-4441 FAX (907)262-1892 ~~ '~^~. October 15, 1996 Kenai City Council 210 Fidalgo Avenue Suite 200 Kenai, Alaska 99611 Dear City Council Members: REC~~VED OCT ~ ~ eggs MIKE NAVARRE MAYOR RE: Petition to vacate the entire of Sockeye Circle public right-of--way and associated utility easement as dedicated and/or granted by Oberts Pillars Subdivision Part One (Plat 95-32 KRD); Section 7, Township 5 North, Range 10 West, Seward Meridian, Alaska. Also being within the City of Kenai; KPB File 96-084 In accordance with AS 29.40.140, no vacation of a city right-of--way and/or easement may be made without the consent of the city council. The referenced vacation was approved by the Planning Commission subject to staff recommendations at their October 14, 1996 regularly scheduled meeting. Staffs recommendations are included in the minutes. A roll call vote was taken with all Commissioners present voting yes. This petition is being sent to you for your consideration and action. The City Council has 30 days from October 14, 1996 in which to veto the decision of the Planning Commission. If no veto is received by the Commission within the 30-day period, the decision of the Commission will stand. Draft, unapproved minutes of the pertinent portion of the meeting and other related materials are attached. Sincerely, ~ '~ sa M. arker Planning Director LMP:ria Attachments cc: Leo Oberts w/minutes only McLane Consulting Group w/minutes only AGENDA ITEM F. PUBLIC HEARINGS 1. Petition to vacate the entire of Sockeye Circle public right-of-way and associated utility easement as } dedicated and/or granted by Oberts Pillars Subdivision Part One (Plat 95-32 KRD); Section 7, Township 5 North, Range 10 West, Seward Meridian, Alaska. Also being within the City of Kenai; KPB File 96-084 Staff report as read by Lisa Parker. PC Meeting 10/14/96 Petitioner: Leo T. Oberts of Kenai, Alaska Purpose as stated in e~hfi'on: To provide for more effective land subdivision with increased lot marketability. The current right-of-way does not provide access to any lots and is not constructed at this time. The petitioner owns the ebsting Lot 23 on the easterly side of Sockeye Circle. Lot 17, on the westerly side of Sockeye Circle, is owned by George O'Guinn. Mr. O'Guinn submitted a letter agreeing to the vacation and further agreeing that the entire vacated right-of-way would attach to the lot owned by Mr. Oberts. Public notice appeared in the October 2 and October 9, 1996 issues of the Peninsula Clarion. Fourteen certified mailings were sent to owners of property within a 300-foot radius and to other interested parties. All of the receipts have been returned. Statements of nonobjection were received from: - PTI Communications - Enstar Natural Gas - Homer Electric Assoaation FINDINGS OF FACT - The Kenai Planning and Zoning Commission reviewed the plat showing the vacation on August 14, 1996 I and recommended approval. - The proposed vacation does not conflict with the enforceable policies of the KPB Coastal Management Program. - Sufficient rights-of-way and easements have been or are being dedicated and granted to serve the surrounding properties. - No surrounding properties will be denied access or utilities. - Per the petition, the easement is not being used for utilities. Alternative access proposed for dedication is shown on the preliminary plat, Oberts Pillars Part 2, which received preliminary approval August 26,1996. STAFF RECOMMENDATIONS: Approve vacation of Sockeye Circle and associated utility easements as requested, subject to the following conditions: 1. Submittal of the final plat within one year of vacation approval. 2. The City Council of the City of Kenai has thirty days in which they may veto Planning Commission approval of the vacation. NOTE: ff the vacation is denied, the petitioner has eight calendar days in which to appeal the Planning Commission denial. Written appeal must be submitted to the Kenai City Clerk. END OF STAFF REPORT Vice Chairman Bryson opened the meeting for public comment. Seeing and hearing no one wishing to speak, Vice Chairman Bryson closed the public hearing and opened discussion among the Commissioners. ~ MOTION: Commissioner Knock moved, seconded by Commissioner Coleman, to approve vacation of Sockeye Circle and associated utility easements as requested, subject to staff recommendations. KPB PLANNING COMMISSION OCTOBER 14, 1996 MEETING PAGE 8 UNAPPROVED MINUTES VOTE: The motion passed by unanimous consent. HANMELMAN BRYSON WHITMORE-PAINTER BOSCACCI CARPENTER CLUTTS ABSENT YES ABSENT YES YES YES COLEMAN C3/WNAWAY HENSLEY JOHNSON KNOCK NINE YES YES YES YES YES YES TWO ABSENT KPB PLANNING COMMISSION OCTOBER 14, 1996 MEETING PAGE 9 UNAPPROVED MINUTES THE PENINSULA CLARION KENAI PENINSULA BOROUGH PLANNING COMMISSION NOTICE OF PUBLIC HEARING PUBLIC NOTICE IS IiEREBY GIVEN THAT A PETITION HAS BEEN RECEIVED TO VACATE PUBLIC RIGI-IT-Of'- WAY AND UTILITY EASEMENT. AREA UNDER CONSIDERATION IS DESCRIBED AS FOLLOWS: A. LOCATION AND REQUEST: VACATE THE ENTIRE OF SOCKEYE CIRCLE PUBLIC RIGHT-OF-WAY AND ASSOCIATED UTILITY EASEMENT AS DEDICATED AND/OR GRANTED BY OBERTS PILLARS SUBDIVISION PART ONE (PLAT 95-32 KBD); SECTION ~, TOWNSHIP S NORTH, RANGE 10 WEST, SEWARD MERIDIAN, ALASKA. ALSO BEING WITHIN THE CITY OF KENAI. B. PURPOSE AS STATED IN PETITION: TO PROVIDE FOR MORE EFFECTIVE LAND SUBDIVISION WITH INCREASED LOT MARKETABILITY. THE CURRENT RIGHT-OF-WAY DOES NOT PROVIDE ACCESS TO ANY LOTS AND IS NOT CONSTRUCTED AT THIS TIME. C. PETITIONER(Sl: LEO T. OBERTS OF KENAI, ALASKA PUBLIC HEARING WILL BE HELD BY THE KENAI PENINSULA BOROUGH PLANNING COMMISSION ON MONDAY, OCTOBER 14, 1996, COMMENCING AT 7:30 P.M., OR AS SOON THEREAFTER AS BUSINESS PERMITS. MEETING TO BE HELD IN THE BOROUGH ADMINISTRATION BUILDING, SOLDOTNA, ALASKA. ANYONE WISHING TO TESTIFY MAY COME TO THE ABOVE MEETING TO GIVE TESTIMONY; OR MAY SUBMIT A WRITTEN STATEMENT TO THE ATTENTION OF MAX BEST, OR BOBBIE HARRIS, KENAI PENINSULA BOROUGH PLANNING DEPARTMENT - 144 N. BINKLEY STREET - SOLDOTNA, ALASKA 99669. WRITTEN TESTIMONY SHOULD BE RECEIVED BY THE PLANNING DEPARTMENT NO LATER TfiAN WEDNESDAY, OCTOBER 9, 1996. . FOR ADDITIONAL INFORMATION CONTACT BOBBIE HARRIS OR MAX BEST, RESOURCE PLANNING DEPARTMENT, 262-4441 (1-800-478-4441 TOLL FREE WITHIN KENAI PENINSULA BOROUGH). BOBBIE HARRIS PLATTING OFFICER PUBLISH 2X (OCTOBER 2 AND 9, 1996) '''4 ~~ ~% i ~'~ - 1 ~~ ° -- -m - FSr a O o __ 9 D VIDSON_ HOMESTE D --- . ,% ~, \ /, ` - ~~..'~.~ 1~~.: -- __ r 5ritn~l'nH:-iliti' icu. -- l -- I _-. 1.~, / 1'n ~,~~I ~~;~, ROCKING BAR A UBD ---- - ~~ .;]~ ~'- UNSINIIII\'IIIF:II ItF.41A1Ninat 7"K 1 ~ ~ \e - .' !~' vt' F ~ n -U' I ml' ': /'~ tl / ~,' ; tai,. n-A ., \ ILLIAMNA ~ VIEW : `,, ~ :~ _ ----- ~ II _,' SUBDc~~ *t~'. I ., ._ . coc'T. Ln 1' I 1 I ` 1 oneaTS uNSUlnn4~wen 1 ~ ~ 1.-_ __ ._ _ ~ _ _- _ _ _ ~ ~ COY'T. I.UT O I•. A 11 I ~:. .,:: TR. iIOME I ~. I I I I 1 __-_ 1 I I I I I I I I 1 I I I/ // I once or .rao rr .5'F..1 RCII AROUND _ OBERTS_ PILLARS SU PART ON ~jln ~ Ot]PXB 0<9]).9 -~~-~~\ \ O \ \-_ oe9]J.J 0~?]J16 /^ to ,L.S 41 .\ •~ 2d ` Ot9]Ja1 I ~' ORf]JR \ _ ~ S~jMo~`L, -- S~~'t-~ rR. n IIK.:!I IY: ~ I: s'I'It,l IY I Ihlt I.1 I' CA ILL SUB IVI 10 llt. 1 TIt. 2 ut. a n;. t n: -~ n-~--:,:- -- Ib - "" Is m p r, In - H~,G HL A-(qD S ~~ UB 1I {{ II ~11J '~ I I~ lit 15 \ I I ` ~ :Y, III ' I ~ \ ~\~(II I] \C ..ti i' 10 ~. I 11 I:1 ~. ~ ~• \ ~ ~ III II 1~ ~ '~' ~f A ~'t~ n 1 It ' r .-~a 11 n ~ I~~_I ~ F `~ •~ II ii I r. 1 ,y n II 11 ~ ~ r ~~ I I A 1' M;. ti P:. iTE - ~ I ( IIKAiKIa LA A 1 ~ a (~~ ~' 71P" ---- ~ O p LEO O ER S f Iln A DN. t ~ InA ~ n -__ - 11 R -IZ _,t ~ :,~,,. I:I E~ ;`~ ,` M I., _ 11 I~ un. S11',11.Id111' Ilk :I ~ ~ ~~~~ _ ~ (gl.ll \ rll AI I °~F~j' ~~~~ KfNAI IENINSVLA lOIIOUGN -lonntl9 O.patm.nt GIS gvl>ton n~i°~~O ..~~ii VIGINIT't NAP ~ a••• • 1 KPe 96 6 NORTH w A , . Y _ '~°°°~ ICAIl I'. qOV' DAtI: 1 LS 1v TOWER HILL NO. 2 1a. A' ~i' '~ '~l,• - ~- - c~ a, _ ~ ,_, o r '_ ~ ,t - ~ M -' m v 0 :_; Sri v 0 MEMORANDUM ~~ ;, ; TO: ROBBIE HARRIS FROM: MARGARET SPAHN DATE: October 1, 1996 RE: Sockeye Circle Vacation Kenai Peninsula Borough Coastal Management Program (KPBCMP) staff has reviewed the petition to vacate the entire of Sockeye Circle located in Section 7 of TAN, R10W, Seward Meridian. The proposed vacation does not conflict with the enforceable policies of the KPB Coastal Management Program. Thank you for the opportunity to comment. ~~~ ~~ COMMUNICATIONS _ ~; yu.~~ ~! ~l.l i~~ 1 ~ , - ~t?:.~ September 25, 1996 =",~~~~ Kenai Peninsula Borough Planning Commission Resource Planning Department 144 North Binkley Soldotna, Alaska 99669 Attention: Robbie Harris Platting Officer Reference: Kenai Peninsula Borough Plats Dear Mrs. Harris, 3940 Arctic Blvd. Anchorage, Alaska 99503 907 562-1 23 1 KRD #95-32 PTI Communications has reviewed request to vacate the entire of Sockeye Circle public Right-of-Way and associated utility ~ easement as dedicated and/or granted by Oberts Pillars Subdivision Part One (Plat 95-32 KRD); Section 7, Township 5 North, Range 10 West, Seward Meridian, Alaska. Also being within the City of Kenai. We have no requests or objections to the action as described. Sincerely, PTI COMM[TNICATIONS ~..,'.~ Bill Hansen Senior Network Engineer _ = Mc ~. E CONSULTING GROUP August 1, 1996 Ms. Robbie Harris Kenai Peninsula Borough 144 N. Binkley St.. Soldotna, AK 99669 962011 SUBJECT: PETITION TO VACATE SOCKEYE CIRCLE (KRD 95-32) RE: OBERTS PILLARS SUBDIVISION PART TWO Dear Ms. Harris: 'The entire sixty (60) feet of Sockeye Circle right-of--way is being vacated by Oberts Pillars Subdivision Part Two which is owned by Leo T. Oberts. Lot 17 of Oberts Pillars Subdivision Part One abuts the western portion of Sockeye Circle and would typically receive one half (1/2) of the vacated right-of--way. In this instance the owner of Lot 17, George O'Guinn, is allowing the entire sixty (60) feet of right-of--way to be attached to Oberts Pillars Subdivision Part Two. By signing below I agree to the above statements: /~2345678~~~'j T ~ a M ~~ ]996 ~ 1(~IAIR~N BORO ci ~ ptpNNING DEPT• ~~ ~ ~6~ S2'~,Z~~LZp~ P.O. BOX 468 SOLDOTNA, AK 99669 PH: (907) 283-4218 FAX: (907) 283 X265 q(.2o~1 ~ PETITION TO VACATE PUBLIC RIGHT-OF-WAY/SECTION LINE EASEMENT PUBLIC HEARING REQUIRED s UPON RECEIPT OF COMPLETE APPLICATION WITH FEES AND ALL REQUIRED ATTACH- MENTS; A PUBLIC HEARING BEFORE THE PLANNING COMMISSION WILL BE SCHEDULED. [X] FEES - S2OO NON-REFUNDABLE FEE TO HELP DEFRAY COSTS OF ADVERTISING PUBLIC HEARING. ANY REQUIRED PLAT FEES WILL BE IN ADDITION TO VACA- TION FEES. [X] PUBLIC RIGHT-OF-WAY PROPOSED TO BE VACATED IS Sockeye Circle ; DEDICATED BY PLAT OF Oberts Pillars Part One SUBDIVISION, FILED AS PLAT N0. 95-32 IN Kenai RECORDING DISTRICT. [ ] EASEMENT FOR PUBLIC ROAD OR RIGHT-OF-WAY AS SET OUT IN SPECIFY TYPE OF DOCUMENT) AS RECORDED IN BOOK PAGE OF THE RECORDING DISTRICT. COPY OF RECORDED DOCUMENT MUST BE SUBMITTED WITH PETITION) [ ] SECTION LINE EASEMENT [ ] SUBMIT THREE COPIES OF PLAT OR MAP SHOWING AREA PROPOSED TO BE VACAT- ED. IF RIGHT-OF-WAY OR EASEMENT WAS GRANTED BY DOCUMENT; ONE COPY OF RECORDED DOCUMENT MUST BE SUBMITTED. HAS RIGHT-OF-WAY BEEN FULLY OR PARTIALLY CONSTRUCTED? [] YES F] NO IS RIGHT-OF-WAY USED BY VEHICLES/PEDESTRIANS/OTHER? [] YES L~ NO HAS SECTION LINE EASEMENT BEEN CONSTRUCTED? [~ YES ^ NO IS SECTION LINE EASEMENT BEING USED? ^ YES [] NO THE PETITIONER MUST PROVIDE REASONABLE JUSTIFICATION FOR THE VACATION. REASON FOR VACATING To provide for more effective land subdivision with increased lot marketabilit The current right-of-way does not provide access to any lots and is not constructe at t is time. THE PETITION MUST BE SIGNED WRITTEN SIGNATURE) BY OWNERS OF MAJORITY OF THE FRONT FEET OF LAND FRONTING PART OF RIGHT-OF-WAY OR SECTION LINE EASEMENT PROPOSED TO BE VACATED. EACH MUST INCLUDE MAILING ADDRESS AND LEGAL DESCRIPTION OF HIS/HER PROPERTY. 6~1819202 S ~~` ~~1 ^4` ~ `~\ IGNATURE SUBMITTED BY: , NAME M. Scott McLane ~ SEF ]996 `'' ' ADDRESS McLane Consulting Group ~ RECEIVED n P n Rox dFR Soldotna, AK 99669 or KENAIPENINBORO °' PHONE (907) 283-4218 ~ ~NNINGDEP7 ~;~''/ c9 ^ PETiTiONERS f \~Z l -~`t~-` $IGNATURE $IGNATURE '' NAME Leo Oberts NAME ADDRESS 1440 C inoo Court ADDRESS Kenai. AK 99611 OWNER OF Lot 23 & unsnbdivided DWNER OF ~~ remainder of Oberts Pillars S/D Part One c $IGNATURE $IGNATURE . NAME NAME . f ADDRESS ADDRESS DWNER OF DWNER OF S/91 r-~. _--_ , .. PETITION TO VACATE. PUBLIC UTILITY EASEMENT PUBLIC HEARING IS NOT REQUIRED UPON RECEIPT OF COMPLETE APPLICATION WITH ALL REQUIRED ATTACHMENTS; VACATION WILL BE SCHEDULED FOR PLANNING COMMISSION ACTION. THE PETITIONER MUST SECURE AND SUBMIT WRITTEN COMMENTS FROM UTILITY COMPANIES. IF THE EASEMENT IS WITHIN CITY LIMITS; SECURE AND SUBMIT WRITTEN CITY COMMENTS. TO ACCOMPLISH AN APPROVED VACATION; A PLANNING COMMISSION RESOLUTION MUST BE FILED WITN THE STATE RECORDER TO ENTER THE VACATION INTO THE PUBLIC RECORDS. PETITIONER MUST PAY FILING FEES USUALLY S17 TO S2O) [ ] UTILITY EASEMENT PROPOSED TO BE VACATED WAS GRANTED BY PLAT OF OBERTS PILLARS PART ONE SUBDIVISIONS FILED AS PLAT NO. 95-32 IN Kenai RECORDING DISTRICT. [ ] UTILITY EASEMENT PROPOSED TO BE VACATED WAS GRANTED BY (SPECIFY TYPE OF OOCUMENT~ AS RECORDED IN BOOK PAGE OF Tt1E RECORDING DISTRICT. COPY OF RECORDED DOCUMENT MUST BE SUBMITTED WITH PETITIONS ~~ - ~ ~o.~tfa 7-ZZ-$G COMMENTS FROM 7/19/96 ELECTRIC ASSOCIATION ATTACHED. p,,,C ~f. [.] COMMENTS FROM 7/19/96 GAS COMPANY ATTACHED. [ ] COMMENTS FROM ~~19.tQ~ TELEPHONE COMPANY ATTACHED. [ ] COMMENTS FROM CITY OF 7/19/96 ATTACHED. [ ] NINE COPIES OF PLAT OR MAP SHOWING AREA PROPOSED TO BE VACATED, IF EASEMENT WAS GRANTED BY DOCUMENT; ONE COPY OF RECORDED DOCUMENT MUST BE SUBMITTED. [ ] IF EASEMENT IS PROPOSED FOR VACATION DUE TO STRUCTURE ENCROACHING INTO EASEMENT; AS-BUILT SHOWING ENCROACHMENT MUST BE ATTACHED. IS EASEMENT BEING USED BY UTILITY COMPANY [] YES L~ NO THE PETITIONER MUST PROVIDE REASONABLE JUSTIFICATION FOR THE VACATION. REASON FOR VACATING Platted Road is not built and ~ ~>> v as-ment is_~ot being used Road is going to be vacated and moved in_Oberts Subd. Part Two. i ~~ :~ F 4 ~~• THE PETITION MUST BE SIGNED WRITTEN SI:GNATURE~ BY OWNERS OF MAJORITY OF Tt1E FRONT FEET OF LAND FRONTING PART OF EASEMENT PROPOSED TO BE VACATED. EACH MUST INCLUDE MAILING ADDRESS AND LEGAL DESCRIPTION OF HIS/HER PROPER- TY. 1~,,~~21u~?a SUBMITTED BY: SIGNATURE ~1•~+~'`'`'~~"~ ~'^ ~ ~a NAME M. Scott t4cLane Mc ane Consu tang ~ /~M ~ WL ADDRESS Soldotna Box 468 O P .~ /~.,_~ M PHONE , . . 283-4218 ~ ~ ' O PETITIONERS: s8f ~~t,F?. $IGNATURE $IGNATURE NAME Leo berts NAME ADDRESS C ~.noo our ADDRESS Kenai, Alaska 99611 OWNER OF OWNER OF Sl91 ~~1~15161718 r92~~ ~ti ~~ o ~C'~ '~ w ~ ~ N s~ ~' ~~~ ~~~ ~- sEOE~~- IZ ~-- Introduced by: Date: 8/20/96 Hearing: 9/17/96 Action: Adopted Vote: Unanimous KENAI PENINSULA BOROUGH ORDINANCE 96-36 AN ORDINANCE AMENDING THE CODE TO AUTHORIZE THE PLANNING DEPARTMENT TO CHARGE FEES FOR UTILITY EASEMENT VACATIONS AND PLAT WAIVERS AND REVISING THE FEE FOR APPEALS OF PLANNING COMMISSION DECISIONS WHEREAS, Ordinance 84-9 enacted in March 6, 1984 established a section in the subdivision ordinance setting out procedures for vacating public utility easements; and WHEREAS, Ordinance 91-2 (Substitute) amended Chapter 20.28 and provided that no fee would be charged in the case of vacation of a utility easement only; and WHEREAS, Ordinance 93-51 amended the Code to enact uniform procedures for appeals of Planning Commission decisions and established a fee of $200.00; and WHEREAS, Ordinances 78-37, 83-53 (Substitute), and 94-32 set forth provisions for procedures to grant exceptions to platting procedures and provided no fee would be charged; and WHEREAS, due to the continual rise in costs for advertising in newspapers, postage, and supplies needed to comply with the mahout requirements of the Borough Code of Ordinances, fees for vacating utility easements and plat waivers need to be established, and the fee charged for appeal of Planning Commission decisions needs to be amended; and WHEREAS, the Planning Commission recommended by unanimous consent during their June 24 meeting that fees he established for vacating utility easements. and plat waivers, and the fee to appeal Planning Commission decisions be increased to help offset the costs to the Planning Department; NOW, THEREFORE, BE IT ORDAINED BY THE ASSEMBLY OF THE KENAI PENINSULA BOROUGH: SECTION 1. That ICPB Section 20.28.065 is hereby amended to read: 28.28.065. Fee required. The fee established by the planning commission by resolution shall accompany the filing of the vacation petition. A fee f .00 is [not] required in the case of vacation of a utility easement Kenai Peninsula Borough, Alaska Ordinance 96-36 Page 1 of 2 ~~ ., :. ~ ~- ~ .~ .~ SECTION 2. That KPB Section 20.04.040.B. is hereby amended t ,~r~ B. Subdivisions meeting all provisions of the above subsection A. 'shall be granted a waiver of platting regulations by resolution of the commission which shall be recorded in the appropriate district recording office within 30 days after adoption or waiver shall lapse. The applicant shall pay a plat waiver fee of $50.00 and recording fees. SECTION 3. That KPB Section 21.20.070.A. is hereby amended to read: 21.20.070 Appeal of planning commission decision. A. Any party of record may appeal a decision of the planning commission within 30 days of the date of the notice of the decision by filing a written notice of appeal with the planning department on the forms provided, and paying the filing and records preparation fee of [$200] $,iQQ. All appeals of planning commission decisions shall be to the assembly sitting as a board of adjustment, and shall be conducted in accordance with the provisions of this chapter, unless otherwise expressly provided by the KPB Code. An appeal of denial of a vacation petition, as provided under KPB 20.28.110, shall be to the assembly as a legislative body -- not as a board of adjustment. SECTION 4. That this ordinance will become effective 30 days from the date of enactment. ENACTED BY THE ASSEMBLY OF THE KENAI PENINSULA BOROUGH THIS 17th DAY OF SEPTEMBER, 1996. Andrew P. Scalzi, Assembly resident ATTEST: G J. aughan, ough Clerk Ordinance 96-36 Kenai Peninsula Borough, Alaska Page 2 of 2 KENAI PENINSULA BOROUGH PLANNING COMMISSION SCHEDULE OF MEETINGS DECEMBER 1996 -DECEMBER 1997 ALL MEETINGS WILL BE HELD IN THE BOROUGH BUILDING UNLESS OTHERWISE NOTIFIED. ALL MEETINGS WILL BE HELD ON MONDAY EVENING COMMENCING AT 7:30 P.M. UNLESS OTHERWISE NOTIFIED. ONE MEETING WILL BE HELD ON TUESDAY: MAY 27. ONLY ONE MEETING IS SCHEDULED FOR DECEMBER: DECEMBER 15. ALL SUBDIVISION PLATS AND/OR SUBDIVISION RELATED ITEMS TO BE CONSIDERED, MUST BE IN THE PLANNING DEPARTMENT OFFICE BY 5:00 P.M. ON THE CUT-0FF DATE FOR EACH MEETING AGENDA AS INDICATED BELOW. (Subdivision related items inGude Time Extensions, Exceptions to Ordinance Requirements, and Plat Waiver Applications). ALL OTHER ITEMS TO BE CONSIDERED BY THE PLANNING COMMISSION MUST BE IN THE PLANNING DEPARTMENT OFFICE BY 12:00 NOON ON THE CUT-OFF DATE INDICATED BELOW. THIS SCHEDULE DOES NOT PERTAIN TO VACATION PETITIONS AND ITEMS REQUIRING A PUBLIC HEARING. IF THE CUT-OFF DATE FALLS ON A HOLIDAY, THE NEXT WORKING DAY WILL BE CONSIDERED THE CUT-OFF DATE. DECEMBER 1996 THROUGH DECEMBER 1997 Agenda Cut-Off Dates Meeting Date Planning Commission Items Subdivision Plats and/or Subdivision Related Items January 13, 1997 Qecember 30, 1996 December 23, t996 January 27, 1997 January 13, 1997 January 6, 1997 February 10, t997 January`27,1997 January 20,1997 February 24, 1997 February 10, 1997 February 3, 1997 r March 1 D, '1997 ! 'February 24, 1991 February 18, 1997 March 24, 1997 March 10, 1997 March 3, 1997 April 14,1997 March 31,1997:- March 24, 1997 April 28, 1997 April 14, 1997 April 7, 1997 May 12,1997 April 28, 1997 ' Apri121, 1997 ` May 27, 1997' (Tuesday) May 12,1997 May 5, 1997 June 9, 1997 May 27,1997 May 19,`,1997 June 23, 1997 June 9, 1997 June 2, 1997 Juty 1d, 1997 June 30, 1997 June 23 1997 July 28, 1997 July 14, 1997 July 7, 1997 :.August 11, 1997 July 28,1997 <Juty 21 1997 August 25, 1997 August 11, 1997 August 4, 1997 :September 8,1997 August 25, 1997: August 18, 1997 September 22, 1997 September 8, 1997 September 2, 1997 October 13, 1997 .September 29,1997 September 22, 1997 October 27, 1997 October 13, 1997 October 6, 1997 November 10,1997 October 27, 1997 October20,1997 November 24, 1997 November 10,1997 November 3, 1997 December 15, t 997 December 1,1997 November 24, i 997: ~~ ~ ~I ~'~- ~'j r~.' ~~....r+o. . KENAI PENINSULA Bl7R000H 144 N. BINKIEY SOLDOTNA, ALASKA 99669-7599 BUSINESS (907) 262-4441 FAX (907)262-1892 ADMINISTRATIVE APPROV SUBDIVISION: HERMAN SUBDIVISION NO.2 KPB FILE 96-046 /,~Z,345g)~ DON GILMAN 9 o~~ ~ MAYOR ~~ ~ ~~ 1996 ~~~,{{II,~~~J w N ~~ v THE KENAI PENINSULA BOROUGH PLANNING COMMISSION HAS REVIEWED THE ABOVE SUBDIVISION PLAT. ADMINISTRATIVE APPROVAL HAS BEEN GRANTED BY THE UNDERSIGNED ON SEPTEMBER 2S, 1996. THE TIME LIMIT FOR FILING THE PLAT WITH THE DISTRICT RECORDER WILL EXPIRE ONE YEAR FROM APPROVAL DATE. i R BBIE HARRIS , P ATT[NG OFFICER NOTARY ACKNOWLEDGEMENT: SUBSCRIBED AND SWORN BEFORE ME THIS ZSDAY OF S~p~-e.tr~~Q`(- ,1996. ~./~ NOTARY PUBLIC FOR STATE OF A S MY COMMISSION EXPIRES: ! - ~ ~~ N~iARY PU6LIC STATE OF ALASKA MARIA E. SWEPPY SURVEY FIRM HAS BEEN ADVISED OF ADDITIONAL REQUIREMENTS, IF ANY, TO BE COMPLIED WITH PRIOR TO FILING PLAT WITH DISTRICT RECORDER. ), ~~r ~'.`t. KENAI PENINSULA BOROUGH 144 N. BINKLEY SOLDOTNA, ALASKA • 99669-7599 BUSINESS (907) 262-4441 FAX (907)262-1892 ~~ ~ MIKE NAVARRE MAYOR October 28, 1996 To From: Re All Surveyors 1e Harris, Platting Officer Final plat submittal ~/~~~4$6'89~ ~i° ~ ,,.~ ~ NOV 1996 N J °'' ~~ ~ ~. ~ .-~'I lZ~% The Planning Department requests that any plats you want filed prior to the end the year, be submitted no later than November 15, 1996. This will ensure that staff will be able to complete a final review, secure the tax certificate, request you update the Certificate to Plat, and have the plat ready for filing. This time frame does not allow time for numerous final reviews of the same plat. If a plat is returned for corrections and/or additions, other than signature, it will be placed at the end of the iirie when returned for a seco~~d or triitd review. We will, of course, try to accommodate plats received after that date. However, given the current work load, we cannot made any assurances the review will be completed. Your anticipated cooperation is appreciated. ' ~-~a.. KENAi PENINSULA BOR®UGH 144 N. BINKLEY • SOLDOTNA, ALASKA • 99669-7599 ~ BUSINESS (907} 262-4441 FAX (907)262-1892 MIKE NAVARRE MAYOR ~/~Z3 a>56~,~~! October 31, 1996 ,,'off ~ o~~N N NOV ~ ~ ~~'~ ~ To: All Surveyors and other interested parties ~ ~ ~+ From: -1 .obbie Harris, Plattin Officer c~s~~~E 6v~~~ g Z~ZLZ~' Subject: Plat Committee On October 28, 1996, the Kenai Peninsula Borough Planning Commission formed a Plat Committee. The four member Plat Committee will be meeting at 5:30 p.m. on the same nights as the Planning Commission. This committee will be reviewing and acting only on subdivision plats. The first meeting, Wednesday, November 13th, will be held in the lobby of the Planning Department. •~~ ... October 15, 1996 Kenai Peninsula Borough Planning Department 144 North Binkley Soldotna, Alaska 99669-7599 (907) 262-4441, extension 260 - FAX (907) 262-8618 NOTICE OF PLANNING COMMISSION ACTION MEETING OF OCTOBER 14, 1996 RE: ' Oberts Pillars S/D No. 2 Exception to KPBPC Resolution 88-02 Note & Affidavit The proposed exception was conditionally approved by the Kenai Peninsula Borough Planning Commission. The conditions of approval are stated in the attached draft minutes. If you have any questions, please feel free to contact the Kenai Peninsula Borough Planning Department. This notice and unapproved minutes of the subject portion of the meeting were sent October 16, 1996 to: City of: City ofKenai, 210 Fidalgo Street, Suite 200, Kenai, Alaska 99611. Advisory Planning Commission: n/a Survey Firm: McLane Consulting Group, P.O. Box 468, Soldotna, Alaska 99669. Subdivider/Petitioner. Leo Oberts, 1440 Chinook Court, Kenai, Alaska 99611 KPB File Number: 96-084 ~Z ~ y1 1718 t9~~? ~~ ~~ ~~ '3 V ~V L ~L ~ZL - ~o~6ti AGENDA ITEM H. SPECIAL CONSIDERATIONS 4. Exception to KPBPC Resolution 88-02 -Note on Plat and Affidavit; McLane Consulting Group; [The Planning Commission may approve all 12 of these exception requests with one motion.] a. Anglers Acres Part Two; KPB File 77-300 b. Blakley S/D Part Ten; KPB File 95-130 c. Brockel SID; KPB File 96-144 d. Comwell SID; KPB Fie 96-121 e. Dawn Glow S/D No. 3; KPB File 96-184 f. Fish Haven SID No. 2; KPB File 96-116 g. Lakeside SID No. 2; KPB Fiie 96-181 h. McFarland S/D Knight Addn.; KPB File 96-145 i. Oberts Pillars S/D No. 2; KPB File 96-084 j. Porter S/D No. 3; KPB File 96-139 k. Shady Grove Estates Addn. 3; KPB Fle 96-143 I. Tukak Harbor SID No. 2; KPB Fle 96-098 Staff report as read by Lisa Parker. PC Meeting 10/14/96 Exceptions to the requirements of KPBPC Resolution 88-02 have been requested for the above I'ISted plats. Soils reports and pertinent data will be submitted to the Planning Department. An engineer's statement and seal will be affixed where necessary on the final plats in lieu of the note required by Resolution 88-OZ. Staff is of the opinion that an engineers statement, signature and seal is an improvement over the note in KPBPC Resolution 88-02. STAFF RECOMMENDATIONS: Grant the requested exceptions, thereby approving the filing of the plats with an engineer's statement, signature and seal. END OF STAFF REPORT MOTION: Commissioner Clutts moved, seconded by Commissioner Knock to grant the requested exceptions, for Anglers Acres Part Two; KPB Fle 77-300; Blakley S/D Part Ten; KPB Fle 95-130; Brockel SID; KPB File 96-144; Comwell SID; KPB Fle 96-121; Dawn Glow SID No. 3; KPB File 96-184; F'~sh Haven S/D No. 2; KPB Fle 96-116; Lakeside S/D No. 2; KPB Fle 96-181; McFarland S/D Knight Addn; KPB File 96-145; Oberts Pillars SID No. 2; KPB File 96-084; Porter S/D No. 3; KPB Fle 96-139; Shady Grove Estates Addn. 3; KPB Fle 96-143; Tukak Harbor S/D No. 2; KPB File 96-098, thereby approving the filing of the plats with an engineer's statement, signature and seal. VOTE: The motion passed by unanimous consent. fl~EUww eaYSON wfrnwoRE-PAiNrER eoscaa~ caz~ cs.urrs ABSENT YES ABSENT YES YES YES coLErw~N oANNnwAY I~NSt.EY ,roliNSON KNOCx NINE YEs YES YES YES YES YES TWO ABSENT KPB PLANNING COMMISSION OCTOBER 14, 1996 MEETING PAGE 11 UNAPPROVED MINUTES •~~ ... October 31, 1996 Kenai Peninsula Borough Planning Department 144 North Binkley Soldotna, Alaska 99669-7599 (907) 262-4441, extension Z60 . FAX (907) 262-8618 sd56; NOTICE OF PLANNING COIvIIvIISSION ACTION MEETING OF OCTOBER 28, 1996 ~/ °~ ~~ 8~~~~ ~~ a, w ~o ~~ ~ ~~~ 6 '~szzz~ZOti RE:~ Ryan S/D Richmond Replat Exception to KPBPC Resolution 88-02 Note & Affidavit The proposed exception was conditionally approved by the Kenai Peninsula Borough Planning Commission. The conditions of approval are stated in the attached draft minutes. If you have any questions, please feel free to contact the Kenai Peninsula Borough Planning Department. This notice and unapproved minutes of the subject portion of the meeting were sent October 31, 1996 to: City of: City of Kenai, 210 Fidalgo Street, Suite 200, Kenai, Alaska 99611. Advisory Planning Commission: n/a Survey Firm: Integrity Surveys, 60S Swires Drive, Kenai, Alaska 99611. Subdivider/Petitioner: Bill Richmond, P.O. Box 3152, Kenai, Alaska 99611. KPB File Number: 96-183 AGENDA ITEM H. SPECIAL CONSIDERATIONS 3. Exception to KPBPC Resolution 88-02 -Note on Plat and Affidavit Integrity) Surveys (The Planning Commission may approve all nine of these exception requests with one motion.] a. Schlereth S/D Sanders Addn. KPB File 96-187 b. Valerie Acres -Selby Replat KPB File 96-196 c. Gentles S/D #2 VanDeusen's Replat KPB File 96-197 d. Chumley Tracts KPB File 96-204 e. Kimbrel S/D Winn Replat KPB File 96-161 f. Old Mill S/D Addn #4 Replat KPB File 96-134 g. Ryan S/D Richmond Replat KPB File 96-183 h. Binkley Airport Tracts Nordic Trading Replat KPB File 96-160 i. North Kenai S/D Harrison Replat KPB File 96-189 Staff report as read by Lisa Parker. PC Meeting 10/28/96 Exceptions to the requirements of KPBPC Resolution 88-02 have been requested for the above listed plats. Soils reports and pertinent data will be submitted to the Planning Department. An engineer's statement and seal will be affixed where necessary on the final plats in lieu of the note required by KPBPC Resolution 88-02. STAFF RECOMMENDATIONS: Grant the requested exceptions, thereby approving the filing of the -plats with an engineer's statement, signature and seal. END OF STAFF REPORT MOTION: Commissioner Whitmore-Painter moved, seconded by Commissioner Clutts, to grant the requested exceptions, thereby approving the filing of the plats with an engineer's statement, signature and seal subject to staff recommendations. Chairman Hammelman recognized Cliff Baker, Integrity Surveys. Mr. Baker understood soils reports would be required for all the plats listed. Some plats tie into city municipal waste water systems, and soils reports are usually not needed. Some plats have lots larger than five acres (200,000 sq. ft.), which also do not require soils reports. For plats meeting what the Borough Planning Commission is considering accepting in the work sessions, Mr. Baker requested that a soils report and engineer's signature not be required. Chairman Hammelman asked for staffs comments. Ms. Parker agreed modifications could be made. Mr. Baker said recommendations made during the work sessions provided if the plat tied into a city waste water system or if the lots were more than 200,000 sq. ft., a soils report and engineer's signature would not be required. However, the motion is to approve per staff, which requires a soils report and engineer's signature for all the plats listed. Mr. Baker understood staffs recommendation, and he did not think this was the intent of the draft ordinance under consideration. Ms. Parker concurred. AMENDMENT TO STAFF RECOMMENDATIONS Ms. Parker modified staff recommendations as follows: KPB PLANNING COMMISSION OCTOBER 28, 1996 MEETING PAGE 19 UNAPPROVED 1~iINUTES The Rotes and Responsibilities of Elected and Appointed Officials in the Planning Process by Chuck Klingenstein. 1. Introduction Being a current elected of$cial and formerly an appointed official for Park City for the past six years, I have come to realize that there are distinct differences in our roles and responsibilities. In my work as a university instructor, researcher, and planning con- sultant both here in Utah and throughout the Intermountain West, I have noticed that many people do not fully understand the distinct roles and respon- sibilities that local officials have in the planning process. I will make reference to Utah's enabling legislation which is found in the Utah Code and establishes most of the roles and respon- sibilities outlined iri this article. This informa- tion is fairly uniform throughout the West and therefore should not be seen as a limita- tion iri this article. If you have questions about your particular state, refer to your state's enabling legisla- tion which can be found your state's code. In Utah, the enabling legislation is titled The Municipal Land Use Development and Management Act, Title 10 Chapter 9, and The County Land Use Development and Management Act, Title 17 Chapter 27. Planning commissions (PC) and boards of adjustment (BOA) aze cleazly covered here but the roles and responsibilities of elected officials aze not, with the exception of legislative acts or appeals. 2. Separation of Powers Doctrine Understanding our roles and responsibilities in the planning process begins with a reminder of the original intent of the framers of the constitution. The top portion of the following chart describes the sepa- ration of powers doctrine. The intent for all levels of government is to assure clear separation between the executive, legislative and judicial branches. These branches aze very clearly delineated at the federal and state levels. These lines become less clearly defined at the local level. Depending on the form of government that your city or county has chosen, elected officials (county commissioners, mayors and city councils) may be wearing one of many 'hats.' It is critical for all !elected officials to be aware of what `hat' they aze wearing since at any given time they might be acting as an executive/administrative body, legislative body or judicial body. Each one of these roles entails an 14 October/November, 1996 /~~ entirely different set of responsibilities. The execu- tive/administrative body runs the day to day opera- tions of the city or county. This branch may include a strong mayor, county commissioners, city manager or county manager/executive. It also includes the PC which primarlly acts as administrator of the develop- ment codes and related regulations that have been enacted by the legislative body. The legislative branch consists of the city council, county commission, or in the case of a council-man- ager form of government, the weak mayor (usually non-voting except in a tie). The legislative branch establishes policy and enacts laws of the city or coun- ty for the executive/administrative branch to carry out. Once again the legislative branch conducts an entirely separate function from that of the other branches and therefore the council or commission must be awaze of the `hat' that they are wearing when iri this mode. Finally, the judicial branch of local government IrpM1~LV~ Jud1eM1 WMk Nbysr ten,, ~.~ cowry cenn.u..an acts as an appeals boazd which may be a function of either the city council, county commission, planning commission or board of appeals or combination of these depending on how your particular jurisdiction is set up. In any case, these pro- ceedings are quasi judi- cial in nature, meaning that the body is acting similazly to a court of law and therefore should act like one. This `hat' is often the most difficult for any of these bodies as they must act carefully as judges, not as policy makers (in a quasi judicial man- ner) when in an appeals procedure. Judges are required to provide a forum for appellants that is both fair in practice (unbiased decision makers) and iri appearance of fairness. Their "Appeazance of Fairness" is preserved by a practice of refraining from the "legislative" input (lobbying) from citizens outside of the formal appeal procedure. By faz, this is the most difficult practice to comply with on a constant basis. I know that several jurisdictions have members of the elected bodies who aze also members of either the PC or BOA or both. I would caution you that under the sepazation of powers doctrine and appearance of fairness doctrine that it is best to sepazate all of these functions so that each branch acts independently of each other. How does it appear if a PC decision is appealed to either the council, commission or BOA (depending on your particular appeals procedure) when an elected official may have enacted the law and rendered the decision or appeal as a member of the PC or BOA! In fact, if you want to carry the appeaz- The Roles and Responsibilities... ance of fairness doctrine to an extreme, it may be unwise for legislative body members to attend or be part of PC or BOA meetings and hearings. In our increasingly litigious environment, a council or com- mission member's simple participation in a PC deci- sion that is later appealed to the city council or coun- ty commission can be a basis of a legal challenge to that jurisdiction's decisions. Some states have enact- ed anappearance of fairness doctrine by legislation. Others acknowledge the doctrine as a matter of due process or of common law. Check your state's laws and regulations. 3. Roles and Responsibilities in the Planning Process Elected OfScials Your most important role is the appointment of members of the PC and BOA (they aze required if you want to have planning and zoning) who will be non- political, neutral, who will look at the broader commu- nity interests iri their decisions, who aze interested in the long-term nature of their decisions, who aze able to understand the different perspectives involved in a matter, and who have a knowledge of the diversity found in the community. Treat the membership of the BOA as equally as important to that of the PC. This board should not be treated as the orphan child of the planning process! Otherwise, stay out of the process unless you have an errant PC or BOA. As a body you may direct the PC to examine some issue, but basically there should be no lobbying. As for the BOA, there should be no need for any contact between elected officials and members of the board after the appointment process (except if you have an errant board). Again, no lobbying. Both of these boards have been set up to be independent of the political process. The goal is for these boards to make decisions for the long term com- munity good -- not short term political gainsl The primary legislative responsibility of elected officials in the planning process is to accept, reject or modify recommendations from the PC and implement them through ordinances/legislation if they need adoption. You aze where the buck stops in the major- ity of the PC actions since they typically operate as an advisory body to you. The legislative body may hear appeals on PC decisions and act as a judicial body if the legislative body appoints itself to hear PC appeals. As a legislative body, you may direct the PC on mat- ters of interest to the legislative body. As a judicial body you simply review whether the PC properly applied the law (that you enacted) to a specific factual scenario. Planning Commissioners Your primary goals aze to be apolitical, neutral, to understand the diverse interests in your community, to understand the long-term nature of your decisions, and to be willing to educate yourself beyond the basic planning tools that you have in your community. You must understand that your role is primarlly that of an advisor to the legislative/elected officials who have the authority to delegate duties to your PC. The elected officials have the power to enact your recommenda- tions and to let your decisions stand or not to enact your recommendations or to overturn your decisions, depending on how your land development code is structured. The PC, in the case of Utah, shall: 1. prepaze and recommend a general plan; 2. recommend zoning ordinances and maps and amendments to zoning ordinances and maps to the legislative body; 3. administer provisions of the zoning ordinance where specifically provided for in the zoning ordi- nances adopted by legislative body; 4. recommend subdivision regulations and amend- ments to those regulations to the legislative body; 5. recommend approval or denial of subdivision appli- cations; 6. advise the legislative body on matters that the leg- islative body directs; 7. heaz or decide any matters that the legislative body designates, including the approval or denial of, or recommendations to approve or deny conditional use permits; 8. exercise any other powers that are necessary to enable it perform its function or delegated to it by the legislative body. These are the responsibilities of the PC as out- lined by the Utah Code's enabling legislation. These responsibilities aze very similaz to those found in other states. Board Of Adjustment The makeup of this boazd is similaz to the plan- ning commission though its decisions are not reviewed by the legislative body. The BOA is a quasi- judicial body. If BOA decisions are appealed, the issue goes to district court. This board is very impor- tant to the community and its elected officials. The BOA decisions aze critical to the planning process and these decisions must only be made within the scope of the local development code and enabling legislation. The BOA is perhaps the most misunderstood and overlooked board in the planning process. In many jurisdictions, this is the most difficult boazd to find members for and often is the place to put citizens that may not be favorable for other boazds. The actions of the BOA can be the most detrimental to the plan- ning process if they do not strictly adhere to their responsibilities as outlined by state enabling legisla- tion. The BOA evolved from the realization that there will be parcels of land that will have unique circum- stances so that when zoning ordinances are applied, the properties aze damaged by an unnecessary hazd- ship. Since this early realization, the BOA responsi- bilities have expanded. Under Utah enabling legisla- tion, again which is similaz to other states, the boazd of adjustment shall hear and decide: Continued on Page 16 October/November, 1996 15 The Roles and Responsibilities Coatiaued from page 15 (a) Appeals from zoning decisions Appeals from zoning decisions applying the zoning ordinance (appealed from the zoning administrator who might be the community development director, a zoning administrator or building inspector depending on your jurisdiction and its size and complexity). The responsibility of the BOA when hearing an appeal concerning the zoning ordinance is to determine the intent of the ordinance. That means they aze not supposed to make new law through a legislative action (they are not empow- ered to do so) but to determine the legislative intent when the ordinance was adopted. (In Utah, cities and towns have the flexibility to designate, by ordinance, a body other than the BOA as the appellate body for the appeal of conditional use permits. That other body is typically the city council.) Appeals to the BOA aze extremely important proceedings since they need to be conducted in a quasi judicial manner and are the only opportunity to present facts and evidence. If the decision of the BOA is appealed (to a court of law), then the appeal goes to a trail court where there is a review of the "record." This means that the judge will only look at the evidence presented at the original BOA hearing. (b) Special Ezeeptions to the terms of the ordi- nance [if designated by the legislative body) There is no clear definition of what a "special exception" is. It is generally acknowledged in zon- ing practice as an ordinance for an activity or land use that represents an exception to normal zoning standazds. Utah's enabling legislation does say the legislative body may provide that conditional use permits (CUPs) be treated as special exceptions in the zoning ordinance. If the legislative body grants the BOA the power to grant special exceptions/CUPs, they must enact an ordinance that outlines the standazds by which the use will be measured by. The BOA cannot make up its own list of exceptions or standards on an ad hoc basis. (c) Variances from the terms of the zonin¢ ordinance Here is where most of the action is for most BOA, perhaps as much as ninety percent or more of their time. Yet variances are where board actions can seriously undermine the legislative intent of the land management or development code. These variances also run with the land. Boards cannot grant a variance whenever the implementation of ordinance regulations might get in the way. It is an opportunity to modify the terms of a zoning reg- ulation but under very well defined circumstances that result from a "hardship." The term "hazdship" means that if the property owner were forced to comply with the provisions of an ordinance, he or she would be unable to make "reasonable" use of the property. The definition of hardship that is recognized by the law does not make room for spe- cial privilege. The board is without authority to grant a request for a personal hazdship. The hazd- ship must be created by the unique attributes of the property, not by a personal problem or need of the owner or user. The following aze the factors which have been used by the courts to determine if a land user has incurred undue hardship that qualifies for consideration of a variance: 1. Unreasonable hazdship - if literal enforcement of the zoning ordinance would cause the applicant an unreasonable hardship. The hazdship must be located on or associated with the property, come from conditions peculiaz to the property and not conditions generally applicable to the neighborhood, and the hazdship cannot be self-imposed or eco- nomic. 2. Special Circumstances -special circumstances that attach to the property which do not apply to other properties in the same district. These special cir- cumstances must relate to the hardship com- plained of and deprive the property of privileges granted to other properties in the same district. 3. Property Rights -the variance must be essential to the enjoyment of a substantial property right pos- sessed by other properties in the same district. 4. General Plan and public interest -the variance may not substantially undermine the general plan and may not be contrary to the public interest. 5. Spirit of the ordinance and substantial justice -the spirit of the zoning ordinance must be observed and substantial justice done. 4. Closing Comments Elected officials need to support their PC by standing by their recommendations and decisions as much as possible. If the PC membership has been selected from a diverse cross section of your commu- nity, their work is often the result of compromise and consensus building, Planning Commissioners need to remember that they are primarily an advisory body to the legislative body that also administers the general plan and land management/development code. Since many plan- ning commissioners were appointed or re-appointed by current elected officials, they will in most cases respect the elected officials' recommendations and decisions. If PC decisions or recommendations aze not taken or modified or if PC decisions are called up or overturned on appeal (by the legislative body), plan- ning commissioners must not take such decisions personally. There needs to be room for differences of opinion between the planning commission and the elected body. However, this should not occur too often. Joint meeting between planning commission and elected officials are essential so that policy direc- tion is clear. Finally, the BOA, can often feel out in left field due to their unique role in the planning process. Their rela- tionship is with the planning and legal staff (if they have one). ~ 1 ~j October/November, 1996 ~~.- ~ ~ '~ ~ - ~ ~~ io _-, ._` ~~ CITY OF KENAI GO AVE., SUITE 200 KENAI, ALASKA 99611-7794 TELEPHONE 907-283-7535 FAX 907-283-3014 w,w.~ MEMORANDUM TO: ~~-~ Mayor John Williams and Members of the Kenai City Council FROM: Cary R. Graves, City Attorney DATE: November 6, 1996 RE: Spot Zoning/Conflict of Interest-Frank S. Griswold v. City of Homer Recently, the Alaska Supreme Court decided what it considers illegal "spot zoning" in Griswold v. City of Homer, Opinion No. 4419 (Alaska October 25, 1996). Prior to this decision, there we no clear guidelines as to what the Supreme Court would consider as spot caning. We knew they didn't like it; we just didn't know what they thought it was. Also, the Court determined what it considers a conflict of interest for purposes of voting and the effect of having a member with a conflict vote on an issue. Since both the Council and the Planning & Zoning Commission deal with zoning issues and have to deal with potential conflicts of interest, I thought you might like to be informed of the decision. I have provided a summary of the opinion below and attached a copy of it for your review. INTRODUCTION In 1992 the Homer City council adopted Ordinance 92-18 amending Homer's planning and caning code to allow motor vehicle sales on thirteen lots in Homer's central business district. Frank Griswold, a Homer businessman, claimed the ordinance was invalid because it was illegal spot zoning and a member of the Homer City Council had a conflict of interest because his business was one of the thirteen lots included within the rezoned area. SPOT ZONING As noted earlier, the Court for the first time set forth its definition of spot zoning. It accepted the definition of spot zoning as reclassifying "a small parcel in a manner inconsistent with existing zoning patterns, for the benefit of the owner and to the detriment of the community, or without any substantial public purpose. " Id at 5. Mayor John Williams and Members of City Council November 6, 1996 Page 2 of 4 The Court then adopted athree-part test to determine spot zoning. The Court will first consider the consistency of the amendment with the comprehensive plan. The Court noted that inconsistency with the comprehensive plan will not in itself make a zoning amendment illegal. It also stated that an action which is in conformance with the comprehensive plan may still be illegal spot zoning. However, consistency with the comprehensive plan is an indication that the action does not constitute illegal spot zoning. The second factor the Court will consider is the benefits and detriments of the amendment to the owners, adjacent landowners, and community. In looking at this factor, the Court will determine whether the action was taken to merely benefit the landowner[s] involved or whether the action will benefit the area and community as a whole. This does not mean that there can be no negative impacts from a rezoning decision. Rather, taken as a whole, the action must benefit the community overall rather than only the landowner[s]. The third factor is the size of the rezoned area. In this case the area was thirteen lots, totaling 7.29 acres. The Court stated that areas under three acres are almost always determined to be spot zoning while areas over thirteen acres are almost always determined not to be spot zoning. Note that KMC 14.20.270(b)(2) requires a minimum area of one acre unless the rezoning enlarges an adjacent district boundary. Under this ruling unless the rezone enlarges an adjacent district boundary, rezones of less than three acres will probably be struck down. The most difficult problems will arise in those areas between three and thirteen acres. A general rule for guidance should be that the smaller the parcel the more likely a Court will be to strike down a zoning amendment as spot zoning. In this case, the Court held that because the amendment was consistent with the comprehensive plan, benefited the community overall, and was not unduly small, the amendment did not constitute spot zoning. CONFLICTS OF INTEREST One of the members of the council owned one of the thirteen lots to be rezoned. The Homer City code prohibits a member of the council from voting on a matter in which the member has a "substantial financial interest." Their code defines a "substantial financial interest" as an interest which will result in financial gain currently or in the reasonably foreseeable future. The Court noted the focus is on the relationship between the council member's financial interest and the possible result of the members action, regardless of '~ Mayor John Williams and Members of City Council November 6, 1996 Page 3 of 4 the member's intent. The Supreme Court held that the council member had a substantial financial interest in the rezoning issue because his lot would increase in possible uses and, therefore, presumably in property value. The Court seemed to be heavily relying on the fact that the rezoned area was small, thirteen lots in a central business district of some 500 lots. Had the amendment affected the entire central business district, it seems likely that the Court would have ruled differently. The Court focused on the idea that a legislator should not vote on an issue which benefits only a small class of people of which the legislator is a member. Here there were only nine property owners who owned the thirteen affected lots. Generally, the smaller the affected group the more likely a member's interest will be disqualifying. For example, a member would not be conflicted from voting to lower sales or property taxes even though there is a direct pecuniary interest because it affects virtually the entire community. However, if a member were one of twenty property owners in a proposed assessment district there would be a conflict. KMC 1.85.060(d) prohibits a council member from voting on issues which the member has a "direct or indirect pecuniary interest. " Our code does not define "pecuniary interest," but in my opinion a Court would use a test similar to the one used in the Homer case. THE EFFECT OF THE CONFLICT OF INTEREST The Court next had to determine what effect the conflict of interest would have. The city argued that since the measure passed five to one it would have passed without the affected vote and should be upheld. The rule in several states is just that-when the necessary majority exists without the vote of the disqualified member, the member's participation will not invalidate the result. Unfortunately, despite the ease in application, the Court did not adopt the vote-counting approach. Nor did it adopt the automatic invalidation approach used in some cases. Instead, it adopted a test to determine the effect of the disqualifying vote. If the vote cast was the decisive vote, the ordinance will be overturned. If the ordinance would have passed without the disqualifying vote, the Court still must examine: 1) whether the member disclosed or the council knew of the interest; 2) the extent of the member's participation in the decision; and 3) the magnitude of the interest. If the member's interest was undisclosed, the ordinance will usually be invalid unless the Mayor John Williams and Members of City Council November 6, 1996 Page 4 of 4 conflict is minimal. If it was disclosed, the ordinance will generally be valid unless the interest and participation is so great as to create an intolerable appearance of impropriety. SUNIlVIARY So in practical terms, what does this decision mean to us at the City of Kenai? First, in the future we need to more closely examine any zoning amendment under fifteen acres to determine whether the Court would consider it spot zoning. If the area is under fifteen acres, we need to use the three-part analysis set out by the Court to determine whether the amendment is spot zoning. The test is 1) consistency with the comprehensive plan; 2) benefit to the community; and 3) the size of the rezoned area. Members also need to continue to be careful to reveal potential conflicts of interest prior to consideration of a matter so that a decision can be made on whether the interest is disqualifying. I recognize that afour-page summary can hardly be called succinct, but I couldn't figure out how to accurately convey the Court's decision in a shorter space. (I am, afterall, a lawyer.) If you have any questions regarding this matter, please stop by my office or give me a call here at City Hall. CRG/sp Attachment cc: Rick Ross Keith Kornelis Jack La Shot ,/1Vlarilyn Kebschull (P&Z Commissioners) Notice: This opinion is subject to correction before publication in the Pacific Reporter. Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, telephone (907) 264-0607, fax (907) 264-0878. THE SCrPREME COURT OF THE STATE OF ALASKA FRANK S. GRISWOLD, ) Appellant, ) v. ) CITY OF HOMER, ) Appellee. ) Supreme Court No. 5-6532 Superior Court No. 3H0-92-290 CI OPINION [No. 4419 -October 25, 1996] Appeal from the Superior Court of the State of Alaska, Third Judicial District, Homer, Jonathan H. Link, Judge. Appearances: Frank S. Griswold, pro se, Homer. Gordon J. Tans, Perkins Coie, Anchorage, for Appellee. Before: Moore, Chief Justice, Rabinowitz, Matthews, Compton, and Eastaugh, Justices. EASTAUGH, Justice. RABINOWITZ, Justice, dissenting in part. I. INTRODUCTION In 1992 the Homer City Council adopted Ordinance 92-18 amending Homer's zoning and planning code to allow motor vehicle sales and services on thirteen lots in Homer's Central Business District. Frank Griswold claims Ordinance 92-18 is invalid because it GRISWOLD OPINION -Page 1 of 23 constitutes spot zoning. We affirm the superior court's rejection of that claim. Griswold also claims the Ordinance is invalid because a council member with a personal interest improperly participated in its adoption. We hold that the council member should not have participated. We consequently remand so the superior court can determine whether that participation invalidates the Ordinance. Finally, we hold that Griswold is a public interest litigant who cannot be assessed the City's attorney's fees and court costs. II. FACTS AND PROCEEDINGS Alaska Statute 29.40.020 requires that each first class borough establish a planning commission which will prepare, submit, and implement a comprehensive plan. (EN1) This plan must be adopted before the local government can adopt a zoning ordinance. AS 29.40.020-.040. A borough assembly "[i]n accordance with a comprehensive plan adopted under AS 29.40.030 and in order to implement the plan ...shall adopt or amend provisions governing the use and occupancy of land." AS 29.40.040. That statute requires the borough to implement the comprehensive plan by adopting provisions governing land use, including zoning regulations. Id. A borough may delegate this responsibility and the planning power to a city within the borough, if the city consents. AS 29.40.010(b). The Kenai Peninsula Borough delegated to the City of Homer the zoning authority for areas within the City. The City adopted a comprehensive land use plan in 1983 and revised it in 1989. The City Council enacted zoning ordinances to implement the plans. Motor vehicle sales and services were not a permissible use within the Central Business District (CBD). Several businesses provided automobile services in the CBD before the City adopted the zoning ordinances. Those businesses were "grandfathered" into the zoning district and allowed to continue to provide those services as nonconforming uses, so long as those uses did not extend beyond the original lot boundaries and the property owners did not discontinue their nonconforming uses for more than one year. Guy Rosi Sr. owns a parcel (Lot 13) in the CBD. (EN2) Rosi Sr. has continuously operated an automobile repair service on Lot 13. His repair business remains a valid nonconforming use in the CBD. Rosi Sr. also operated an automobile dealership on Lot 13 until sometime prior to 1990, but lost the right to continue that nonconforming use on that lot by discontinuing the vehicle sales business for more than one year. Guy Rosi Jr. owns Lot 12, which is adjacent to his father's lot. Lot 12 is also in the CBD; because it had never been used for automobile sales or services, these uses were not grandfathered for Lot 12. In 1986 the City received complaints that Lot 12 was being used for vehicle sales in violation of the zoning ordinance. In May 1986 Rosi Jr. applied to the Homer Advisory Planning Commission for a conditional use permit for Lot 12. The commission denied the application. It found that public services and facilities were adequate to serve the proposed use. The commission also found that automobile sales were not consistent with the purpose of the CBD; were not in harmony with the Comprehensive Plan; would negatively impact neighborhood character; but might not negatively impact the value of adjoining property more than permitted uses. Rosi Jr. then applied for a contract rezone under Homer City Code (HCC) 21.63.020(c). The City granted the application in 1986, rezoning Rosi Jr.'s lot to General GRISWOLD OPINION -Page 2 of 23 Commercial 1 (GC1) and restricting its use to vehicle sales. Griswold does not challenge the Lot 12 contract rezone in this litigation. Rosi Sr.'s Lot 13 was not affected by the Lot 12 contract rezone. In September 1990 Rosi Sr. requested that the CBD be rezoned to allow vehicle sales and related services. In August 1991 Rosi Sr., stating that he had not received any response to his earlier request, asked that Lot 13 be rezoned to allow vehicle sales and related services. During this period, there were numerous zoning proposals and public hearings regarding automobile-related services in the CBD, but some people spoke in favor of rezoning the area. In January 1992 a commission memorandum informed the City Manager that the commission had been wrestling with several possible amendments to the zoning code since 1990, and that "[c]entral to the issue is the Commission's desire to rezone the Guy Rosi property to allow for vehicle sales. " The commission noted that a proposed ordinance would allow automobile-related services in the CBD only on Main Street from Pioneer Avenue to the Homer Bypass, excluding corner lots with frontage on Pioneer Avenue and the Homer Bypass Road. However, the commission staff recommended that the council pass an ordinance which would allow automobile-related services "everywhere in the Central Business District or nowhere. " The memo stated that the City Attorney felt the proposed ordinance would be difficult to enforce and defend. In April the City Council adopted Ordinance 92-18, which amended HCC 21.48.020 by adding the following section: hh. Automobile and vehicle repair, vehicle maintenance, public garage, and motor vehicle sales, showrooms and sales lots, but only on Main Street from Pioneer Avenue to the Homer Bypass Road, excluding corner lots with frontage on Pioneer Avenue or the Homer Bypass Road, be allowed as a permitted use. The Ordinance passed five-to-zero. One council member was absent. Brian Sweiven was one of the council members voting for the amendment. He owned one of the thirteen lots on which automobile sales and services were to be allowed under Ordinance 92-18. Sweiven both lived on his lot and operated an appliance repair business there. In 1994, stating he had a potential conflict of interest, he refrained from voting on Ordinance 94-13, which would have repealed subsection (hh). A week later he reversed that position and voted not to repeal subsection (hh). Frank Griswold, the plaintiff in this case, owns an automobile repair shop in the CBD. Its operation was grandfathered in under the zoning code. He also lives in the CBD. Griswold's lot was not one of the thirteen lots directly affected by Ordinance 92-18. Griswold brought suit against the City, alleging under several theories that Ordinance 92-18 is an invalid exercise of the City's zoning power and that Sweiven's participation in the adoption of Ordinance 92-18 invalidates the Ordinance. Following a bench trial, the superior court found against Griswold on all issues. It later ordered him to pay a portion of the City's court costs and attorney's fees. Griswold appeals. GRISWOLD OPIIJION -Page 3 of 23 III. DISCUSSION We have repeatedly held that it is the role of elected representatives rather than the courts to decide whether a particulaz statute or ordinance is a wise one. (EN3) Norene v. Municipality of Anchorage, 704 P.2d 199, 202 (Alaska 1985); Sewazd Chapel, Inc. v. City of Seward, 655 P.2d 1293, 1299 (Alaska 1982). In Concerned Citizens of S. Kenai Peninsula v. Kenai Peninsula Borough, 527 P.2d 447, 452 (Alaska 1974), we stated: A court's inquiry into arbitrariness begins with the presumption that the action of the legislature is proper. The party claiming a denial of substantive due process has the burden of demonstrating that no rational basis for the challenged legislation exists. This burden is a heavy one, for if any conceivable legitimate public policy for the enactment is appazent on its face or is offered by those defending the enactment, the opponents of the measure must disprove the factual basis for such a justification. (Footnote omitted.) See also 6 Eugene McQuillan, Municipal Corporations sec. 20.05, at 12 (3d ed. 1988) ("The validity of an ordinance will be upheld where there is room for a difference of opinion 'even though the correctness of the legislative judgment is doubtful.' ") (quoting Western Springs v. Bernhagen, 156 N.E. 753, 754 (Ill. 1927). However, we will invalidate zoning decisions which are the result of prejudice, azbitrary decision-making, or improper motives. See South Anchorage Coalition v. Coffey, 862 P.Zd 168, 174 (Alaska 1993) ("In reviewing zoning decisions, courts generally try to guard against prejudice, azbitrary decision-making, and improper motives. ") (citing 3 Edwazd H. Ziegler Jr., Rathkoph's The Law of Zoning and Planning sec. 41.06, at 41-29, sec. 41.14(3)(b), at 41-93 (1992)). Similarly, a legislative body's zoning decision violates substantive due process if it has no reasonable relationship to a legitimate govennment purpose. Concerned Citizens of S. Kenai Peninsula, 527 P.2d at 452. Moreover, another court has noted, "The dividing line between ...mere difference in opinion and what is arbitrary is the line between zoning based on objective factual evidence and zoning without a rational basis. " Smith v. County of Washington, 406 P.2d 545, 548 (Or. 1965)(citations omitted). (EN4) In this case, Griswold argues that the City's Ordinance does not have a legitimate basis but rather is arbitrary spot zoning. (ENS) We have not previously had the opportunity to consider whether a municipality's planning and zoning enactment is invalid because it constitutes "spot zoning." The City states that "this is not a case of 'spot zoning' at all" because the azea in question remains zoned CBD. However, treatise discussions of spot zoning appeaz to make no distinction between cases where a zoning district has been reclassified and those where a new use without district reclassification is at issue. See, e. g. , 1 Robert M. Anderson American Law of Zoning 3d sec. 5.12, at 358 (1986) ("The common [spot zoning] situation is one in which an amendment is initiated at the request of an owner or owners who seek to establish a use prohibited by the existing regulations. "). See also, Ballenger v. Door County, 388 N. W.2d 624, 627 (Wis. App. 1986) (applying spot zoning analysis in a case where the zoning district remained the same but the permitted uses within the district were expanded); Concerned Citizens of S. Kenai Peninsula, 527 P.2d at 452 (whether zoning decision violates substantive due process depends on whether it has a reasonable relationship to a legitimate public purpose). GRISWOLD OPIlJION -Page 4 of 23 A. Claim of Spot Zoning The "classic" definition of spot zoning is "the process of singling out a small parcel of land for a use classification totally different from that of the surrounding area, for the benefit of the owner of such property and to the detriment of other owners .... " Anderson, supra, sec. 5.12, at 359 (quoting Jones v. Zoning Bd. of Adjustment of Long Beach, 108 A.2d 498 (N.J. Super. 1954)). Spot zoning "is the very antithesis of planned zoning." Id. (EN6) Courts have developed numerous variations of this definition. Id. These variations have but minor differences and describe any zoning amendment which "reclassifies a small parcel in a manner inconsistent with existing zoning patterns, for the benefit of the owner and to the detriment of the community, or without any substantial public purpose." Anderson, supra, sec. 5.12, at 362. Professor Ziegler states: Faced with an allegation of spot zoning, courts determine first whether the rezoning is compatible with the comprehensive plan or, where no plan exists, with surrounding uses. Courts then examine the degree of public benefit gained and the characteristics of land, including parcel size and other factors indicating that any reclassification should have embraced a larger area containing the subject parcel rather than that parcel alone. No one particular characteristic associated with spot zoning, except a failure to comply with at least the spirit of a comprehensive plan, is necessarily fatal to the amendment. Spot zoning analysis depends primarily on the facts and circumstances of the particular case. Therefore the criteria are flexible and provide guidelines for judicial balancing of interests. 3 Edward H. Ziegler Jr., Rathkoph's The Law of Zoning and Planning sec. 28.01, at 28-3 (4th ed. 1995). In accord with the guidance offered by Professor Ziegler, in determining whether Ordinance 92-18 constitutes spot zoning, we will consider (1) the consistency of the amendment with the comprehensive plan; (2) the benefits and detriments of the amendment to the owners, adjacent landowners, and community; and (3) the size of the area "rezoned." 1. Consistency with the comprehensive plan Just as an ordinance which complies with a comprehensive plan may still constitute an arbitrary exercise of a city's zoning power, Watson v. Town Council of Bernalillo, 805 P.2d 641, 645 (N.M. App. 1991), nonconformance with a comprehensive plan does not necessarily render a zoning action illegal. Anderson, supra, sec. 5.06, at 339-40. However, consistency with a comprehensive plan is one indication that the zoning action in question has a rational basis and is not an arbitrary exercise of the City's zoning power. Homer's comprehensive plan divides the city into several zoning areas. By its own terms, Homer's comprehensive plan is not intended to set specific land use standards and GRISWOLD OPINION -Page 5 of 23 boundaries; specific standards and boundaries are instead implemented through the City's zoning ordinance. The plan states, "The City shall encourage a mix of business/commercial and public/governmental activities in areas zoned or planned as central business district. " The plan states that the CBD is "intended primarily for retail sales and services occurring within enclosed structures." The plan's objectives for the CBD aze (1) to guide growth and development to provide a centrally located business and commercial azea and focal point for the community; (2) to encourage infilling of the area already designated CBD before expanding the area; (3) to promote a safe, attractive, and easily accessible business and commercial core for pedestrian and vehicular visitors and residents; (4) to attract and accommodate a variety of uses to fill the business and commercial needs of downtown Homer; and (5) to tie into state and federal programs that beautify the business and commercial core. Griswold does not dispute that the CBD is intended to allow commercial uses. He notes however, that although auto-related services are explicitly permitted in the General Commercial 1 District under HCC 21.49.020(d), the planning commission previously denied a conditional use permit for auto-related services on Main Street, specifically finding, inter alia, that automobile sales were not consistent with the purpose of the CBD and were not in harmony with the comprehensive plan. He also notes that the comprehensive plan provides that the CBD was meant primarily for retail sales and services occurring within enclosed structures. Further, the fact that the City began phasing out auto-related services in the CBD when it adopted the comprehensive plan, while simultaneously specifically permitting these services in the General Commercial I District, indicates to Griswold that auto-related sales and services were, at least at one time,considered incompatible with the CBD. The superior court concluded that the Ordinance was consistent with the comprehensive plan. In so concluding, it considered the policy statement implementing the Ordinance, and found that the Ordinance "encourages private investment and infilling" and "enhances convenient access to other parts of the CBD which are designated for other uses. " It noted that Policy 4.1 provided: "The City shall reseazch the nature of land uses and CBD land use needs and evaluate the need for subzones in the CBD." Griswold points to trial evidence that the expansion of auto-related services in the CBD does not further all the goals of the comprehensive plan, but he fails to demonstrate that the superior court's finding -- that the Ordinance is consistent with the plan -- is clearly erroneous. Although the evidence presented by Griswold would permit a finding that the City Council had believed in 1986 that auto-related uses were incompatible with the CBD and the zoning ordinance as it then read, that evidence does not compel a finding that auto-related uses are in fact incompatible with the CBD or comprehensive plan, or that the City Council's 1992 change of opinion is unsupportable and azbitrazy. The superior court did not clearly err in making the findings discussed above. The court permissibly relied on Policy 4.1, which anticipates the type of action at issue here. The comprehensive plan does not expressly prohibit automobile sales or service establishments in the CBD. As the City notes, motor vehicle sales aze most appropriately classified as a business and commercial use, for which the CBD was intended under the plan. Homer's city planner testified at trial that the Ordinance is in accordance with Homer's comprehensive plan. We conclude that the superior court did not err in holding that Ordinance 92-18 is consistent with the City's comprehensive plan. GRISWOLD OPINION -Page 6 of 23 2. Effect of small-parcel zoning on owner and community Perhaps the most important factor in determining whether asmall-parcel zoning amendment will be upheld is whether the amendment provides a benefit to the public, rather than primarily a benefit to a private owner. See Anderson, supra, sec. sec. 5.13-5.14; Ziegler, supra, sec. 28.03, sec. 28.04, at 28-19 (calling an amendment intended only to benefit the owner of the rezoned tract the "classic case" of spot zoning). Courts generally do not assume that a zoning amendment is primarily for the benefit of a landowner merely because the amendment was adopted at the request of the landowner. Anderson, supra, sec. 5.13, at 368. If the owner's benefit is merely incidental to the general community's benefit, the amendment will be upheld. Ziegler, supra, sec. 28.04, at 28-19 to 28-20. The City argues that Ordinance 92-18 serves the interests of the general community rather than primarily the interests of the Rosis. We agree. ;, a. Benefits and detriments to the community Griswold argues that there are many negative aspects of the City's decision to allow auto-related uses in the CBD. Griswold presented evidence that the neighborhood character would be harmed by the zoning amendment. He presented evidence that a newspaper article quoted Planning Commissioner Cushing as saying that public opinion was overwhelmingly against allowing auto-related services in the CBD and that many Homer citizens expressed the opinion that their homes .and businesses would be harmed by introducing auto-related services into the area. Areal estate agent testified that property in the CBD has a higher value than property in the GC1 District. Many jurisdictions, including this one, have held that interests such as the preservation of neighborhood character, traffic safety, and aesthetics are legitimate concerns. Barber v. Municipality of Anchorage, 776 P.2d 1035, 1037 (Alaska) (holding the government's interest in aesthetics is substantial and should be accorded respect), cert. denied, 493 U. S. 922 (1989); Cadoux v. Planning and Zoning Contm'n of Weston, 294 A.2d 582, 584 (Conn.) (holding increased traffic a valid reason to deny application for rezone), cert. denied, 408 U.S. 924 (1972). Contrary to the implication of the City's argument, (EN7) these are tangible harms. Moreover, the City itself appears to be concerned about the effects of auto-related services on property values and aesthetics, as evidenced by the council's findings supporting its confinement of the zoning change to Main Street, (EN8) and the commission's earlier finding that use for automobile sales would negatively impact neighborhood character. However, despite this negative aspect of Ordinance 92-18, it appears that the Ordinance will result in genuine benefits for the City of Homer. The City notes that before adopting Ordinance 92-18, for a year and a half it deliberated proposals which would allow auto-related uses in the CBD and delineated the many benefits which it believed the Ordinance will confer upon the community. These benefits include encouraging filling in vacant places in the CBD; increasing the tax base and employment in the CBD; increasing convenience and accessibility for local and regional customers for vehicle repairs or purchases; and promoting orderly growth and development in the CBD. (EN9) Homer's city planner testified that the Ordinance provides a convenience to the public and guides growth and development to a centrally located area, while restricting such uses to areas away from tourists or to areas for GRISWOLD OPINION -Page 7 of 23 visitors and pedestrians. The superior court stated that Ordinance 92-18 advances legitimate legislative goals articulated in HCC 21.28.020 includingbut not limited to regulating and limiting the density of populations; conserving and stabilizing the value of properties; providing adequate open spaces for light and air; preventing undue concentration of population; lessening congestion on streets and highways; and promoting health, safety and general welfare. The court found "as a matter of fact and law that Ordinance No. 92-18 bears a substantial relationship between legitimate legislative goals and the means chosen to achieve those goals. " Griswold has demonstrated that there are some negative aspects of allowing auto-related uses in the CBD. Nonetheless, giving proper deference to the City Council as legislative policymaker and to the superior court as finder of fact, we cannot conclude that these detriments so outweigh the benefits of Ordinance 92-18 that we must hold the Ordinance was azbitrarily and capriciously adopted. b. Benefit to the landowner It appears that initially the City was primarily concerned with Rosi Sr.'s interests. (EN10) Rosi Sr. initiated the inquiry into rezoning the CBD. Before the City amended the zoning code, the planning commission chair stated that "[c]entral to the issue is the Commission's desire to rezone the Guy Rosi property to allow for vehicle sales. " In 1991 commissioners "voiced their dislike for spot zoning but felt it important to right a wrong [done to Mr. RosiJ." The City planning staff stated that "'spot zoning' is not good planning; however there are extenuating circumstances that support the proposed change in zone. " The commission supported these conclusions with the following findings of fact: (1} the property owner had owned and operated a business on the property since the eazly 1950's; (2) public testimony and response to staff were positive; (3) the City Attorney's response was positive; and (4) the business was an expensive business to establish and maintain. This desire to accommodate the needs of a businessman who had been in the community for decades is understandable. Nevertheless, small-parcel zoning designed merely to benefit one owner constitutes unwarranted discrimination and arbitrary decision-making, unless the ordinance amendment is designed to achieve the statutory objectives of the City's own zoning scheme, even where the purpose of the change is to bring a nonconforming use into conformance or allow it to expand. See Speakman v. Mayor of N. Plainfield, 84 A.2d 715, 718-19 (N.J. 1951). Otherwise, the City would be forced either to discriminate azbitrarily among landowners seeking relaxed restrictions or to abandon the concept of planned zoning altogether. Thus, if assisting Guy Rosi Sr. was the primary purpose of the Ordinance, we would invalidate it even if it was not the product of discriminatory animus. However, it appears that the City Council was ultimately motivated to pass the Ordinance because of the community benefits the council perceived rather than because of the benefit the Ordinance would confer upon Rosi Sr. The Ordinance restricted auto-related uses to one street not because its real intent was to benefit Rosi Sr.'s property, but, as Homer's city planner testified, because the City desired to minimize the negative impact of auto-related uses, especially the impact of such uses on more pedestrian and tourist-oriented azeas such as Pioneer Avenue. See also supra note 7. Similarly, it appears that vacant lots located farther from Pioneer Avenue were excluded not because Rosi did not own these lots, but in an attempt GRISWOLD OPIIQION -Page 8 of 23 to prevent urban sprawl by filling in vacant places in developed areas before expanding development. These reasons are legitimate, nondiscriminatory justifications for enacting the Ordinance. 3. Size of "rezoned" area Ordinance 92-18 directly affects 7.29 acres. (EN11) Thesize of the area reclassified has been called "more significant [than all other factors] in determining the presence of spot zoning." Anderson, supra, sec. 5.15, at 378. The rationale for that statement is that "[i]t is inherently difficult to relate are classification of a single lot to the comprehensive plan; it is less troublesome to demonstrate that a change which affects a larger area is in accordance with a plan to control development for the benefit of all. " Id. at 379. We believe that the relationship between the size of reclassification and a finding of spot zoning is properly seen as symptomatic rather than causal, and thus that the size of the area rezoned should not be considered more significant than other factors in determining whether spot zoning has occurred. A parcel cannot be too large per se to preclude a finding of spot zoning, nor can it be so small that it mandates a finding of spot zoning. Although Anderson notes that reclassifications of parcels under three acres are nearly always found invalid, while reclassifications of parcels over thirteen acres are nearly always found valid, id., as Ziegler notes, the relative size of the parcel is invariably considered by courts. Ziegler, supra, sec. 28.04, at 28-14. One court found spot zoning where the reclassified parcel was 635 acres in an affected area of 7,680 acres. Chrobuck v. Snohomish County, 480 P.2d 489, .497 (Wash. 1971). Nor does the reclassification of more than one parcel negate the possibility of finding spot zoning. Ziegler, supra, sec. 28.04, at 28-15. In this case, there was some evidence that the reclassified area may have been expanded to avoid a charge of spot zoning. Other courts have invalidated zoning amendments after finding that a multiple-parcel reclassification was a subterfuge to obscure the actual purpose of special treatment for a particular landowner. Id. See Atherton v. Selectmen of Boume, 149 N. E.2d 232, 235 (Mass. 1958) (holding that the amendment is "no less 'spot zoning' by the inclusion of the additional six lots than it would be without them" where proponents of a zoning change apparently anticipated a charge of spot zoning and enlarged the area to include the three lots on either side of the lot in question). Homer's CBD is over 400 acres; the reclassified area is 7.29 acres. The CBD appears to contain approximately 500 lots; the reclassified area contains 13 lots. A comparison of the size of the area rezoned and the size of the entire CBD is not in itself sufficient to persuade us that the City's decision was the product of prejudice, arbitrary decision-making, or improper motives. South Anchorage Coalition v. Coffey, 862 P.2d 168, 174 (Alaska 1993). Further, it is not necessarily appropriate to compare the area of the affected lots with that of the entire CBD. The comprehensive plan recognized the possibility of subzones. The City considered significant portions of the CBD to be inappropriate for automobile sales and services, particularly Pioneer Avenue and the Bypass. Subtracting those areas from the entire CBD, the reclassified area on Main Street is a relatively larger part of the remaining CBD. GRISWOLD OPINION -Page 9 of 23 Thus, having considered the relative size of the rezoned area in determining whether Ordinance 92-18 constituted spot zoning, we hold that the size of the area rezoned does not require a finding of spot zoning given other factors supporting a contrary conclusion. We conclude that the superior court did not err in finding that Ordinance 92-18 does not constitute spot zoning. B. Claim of Conflict of Interest Homer City Council member Brian Sweiven owned one of the thirteen lots in the reclassified area. He was one of nine owners directly affected by Ordinance 92-18. It appears that it was Sweiven who first recommended to the commission that the rezone apply only to Main Street. An article in the Homer News was titled "Sweiven proposes commercial zoning for downtown Homer." The article refers to the idea of rezoning Main Street as "Sweiven's proposal." Griswold alleges that Sweiven had a disqualifying conflict of interest under Homer municipal law and that his participation in the adoption of Ordinance 92-18 therefore invalidates the Ordinance, even though Sweiven's vote was not necessary for passage. The superior court found that Sweiven did not have a disqualifying conflict of interest and that even if he had, his participation in the deliberations and vote would not invalidate Ordinance 92-18. 1. Was there a conflict of interest? Homer City Code 1.24.040(g) states: A member of the Council shall declare a substantial financial interest the member has in an official action and ask to be excused from a vote on the matter. The Mayor or other presiding officer shall rule on the request; however, the decision may be ovemdden by the majority vote of the Council. Should a Council member fail to declare a substantial financial interest, the Council may move to disqualify that member from voting by a majority vote of the body. A Council member with a conflict of interest regardless of whether excused from voting, shall not be allowed to participate in discussion about the matter. [ (EN 12)] The code defines "substantial financial interest" as 1. An interest that will result in immediate financial gain; or 2. An interest that will result in financial gain which will occur in the reasonably foreseeable future. HCC 1.12.010(a). Under common law, "the focus ... [is] on the relationship between the public official's financial interest and the possible result of the official's action, regardless of the official's intent." Carney v. State, Bd. of Fisheries, 785 P.2d 544, 548 (Alaska 1990) (citing Marsh v. Town of Hanover, 313 A.2d 411, 414-15 (N. H. 1973)). (EN13) The plain language of HCC 1.24.040(g) appears to coincide with this principle. GRISWOLD OPINION -Page 10 of 23 The City Council did not address Sweiven's alleged conflict of interest until after the Ordinance had been passed. After the council passed the Ordinance, the City Attorney advised the council to address the matter at its next meeting by having Sweiven declare the facts concerning his ownership of the land and ask the council to determine whether his participation in the matter constituted a conflict of interest under the City Code, and to have the Mayor then rule on this question. The City Attorney stated that if the City were to determine that Sweiven had a disqualifying conflict of interest, it should declare the Ordinance void. The City Attorney also stated that, in his opinion, Sweiven's ownership did not constitute a disqualifying conflict of interest. The superior court found that [t]here has been no showing that passage of the ordinance will result in a financial gain to Council member Sweiven, now or in the future. In fact, it may act as a detriment. Council member Sweiven's interest in Ordinance No. 92-18 is simply too remote and/or speculative to require his disqualification as a legislative official. This finding is clearly erroneous. The court further stated, Plaintiff correctly surmises that Council Member Sweiven's purpose and intent at the time he promoted and voted for the ordinance are of crucial importance in determining whether or not he had a conflict of interest. This holding incorrectly states the law, because the proper focus is on the relationship between the official's financial interest and the result of the official's action, "regardless of the official's intent. " Carney, 785 P.2d at 548. Sweiven had a "substantial financial interest" within the meaning of HCC 1.12.010(a)(2) in a reclassification which would increase the permissible uses of his property. Indeed, it seems inconsistent for the City to argue both that the Ordinance will benefit the City by increasing the tax base and property values, and that it will not benefit Sweiven's lot in a similar fashion. The City nevertheless asserts that Sweiven's interest in the passage of Ordinance 92-18 is too remote and speculative to constitute a disqualifying interest, and argues that Sweiven's property is affected the same way as other citizens' property. The City attempts to distinguish Camey in which we held that fishermen who sat on the Board of Fisheries could vote on matters affecting the fishing industry as a whole but were disqualified from voting on regulations which affected the area in which they actively fished. We reasoned in Carney that the members should have abstained from decision-making in areas in which they had a narrow and specific interest. Id. at 548. The City argues that Sweiven did not have a narrow and specific interest because "Mr. Sweiven's operations (his home and appliance repair business) are not affected at all by Ordinance 92-18 (automobile sales and services)." Ordinance 92-18 does not directly affect all of Homer, or even a large part of the City or an entire class of its citizens. Sweiven voted on an amendment which directly affects only thirteen lots, including his own, out of the 500-some lots in the CBD. According to the Alaska Department of Law, the common law requires that a legislator refrain from voting on a bill which will inure to the legislator's financial benefit if the legislator's interest GRISWOLD OPII~TION -Page 11 of 23 "is peculiarly personal, such as when a bill benefits only a tiny class of which the legislator is a member." 1982 Formal Op. Att'y Gen. 4133. Furthermore, it is said in the context of zoning: Most of the cases [of disqualifying conflict of interest] have involved a charge of a more-or-less direct financial interest, and it is clear that such an interest is a proper ground of disqualification, as where the officer himself holds property which is directly involved in or affected by the proceeding. . The clearest situation in which disqualifying bias or prejudice is shown is that where the zoning officer himself owns property the value of which will be directly promoted or reduced by the decision to be made and it is not surprising that upon a showing of such interest the courts have usually held the officer disqualified. W.E. Shipley, Annotation, Disqualification for Bias or Interest of Administrative Officer Sitting in Zoning Proceeding, 10 A. L. R. 3d 694, 697 (1966). Sweiven himself apparently believed that the Ordinance would increase the value of his property. In recommending the limited rezone to the planning commission, he stated that "it would increase the tax base and property values" of the area. The record reflects that when Sweiven was advocating rezoning the entire CBD, he was quoted in the Homer News as stating: "Even my own business. I can't sell my business, but I can sell my building, and someone who wants to put a VW repair shop there -- he can't.... It's not just me. This gives everybody in town a lot more options as far as selling their business. " Finally, Sweiven initially refrained from voting on Ordinance 94-13, which would have repealed Ordinance 92-18, on the ground that he had a potential conflict of interest. It consequently appears that Sweiven had a "substantial financial interest" as that term is defined in HCC 1.12.010(a). The superior court's finding that Sweiven did not have a disqualifying conflict of interest is clearly erroneous. 2. What was the effect of the conflict of interest? There are six voting members on the Homer City Council. Five voted for Ordinance 92-18 on its first reading. One was absent. Four weeks later, it passed its second and final reading, again by a vote of five in favor and one absent. Thus, without counting Sweiven's vote, Ordinance 92-18 would have passed. The superior court held that even if Sweiven had a disqualifying conflict of interest, his participation and voting would not invalidate the result. In support it cited Waikiki Resort Hotel v. City of Honolulu, 624 P.2d 1353, 1370-71 (Hawaii 1981). Waikiki followed the rule, also articulated in several other jurisdictions, that where the required majority exists without the vote of the disqualified member, the member's participation in deliberation and voting will not invalidate the result. 624 P.2d at 1371 (citing Singewald v. Minneapolis Gas Co., 142 N.W.2d 739 (Minn. 1966); Anderson v. City of Parsons, 496 P.2d 1333 (Kan. 1972); Eways v. Reading Parking Auth., 124 A.2d 92 (Pa. GRISWOLD OPINION -Page 12 of 23 1956)). The Waikiki court also cited Marshall v. Ellwood City Borough, 41 A. 994 (Pa. 1899), where the court reasoned that because the other four members voted in favor of the disputed ordinance, the invalid vote of one city councilman had no legal efficacy; thus, the court would not invalidate the ordinance. Waikiki, 624 P.2d at 1371. Waikiki cited decisions from three other jurisdictions holding that a vote cast by a disqualified member vitiates the decision in which the member participated, even if the vote does not change the outcome of the decision. 624 P.2d at 1370 (citing Piggott v. Borough of Hopewell, 91 A.2d 667 (N.J. Super. 1952); Baker v. Marley, 170 N. E.2d 900 (N. Y. 1960); Buell v. City of Bremerton, 495 P.2d 1358 (Wash. 1972)). In Buell, the court stated: The self-interest of one member of the planning commission infects the action of the other members of the commission regardless of their disinterestedness. The recommendation of the planning commission to the city council could not be assumed to be without impact on the council. More importantly, it would not appear to the affected public that it was without impact, and [the disqualified member's] actual financial gain is sufficient to invalidate the entire proceeding. 495 P.2d at 1362-63 (citations omitted). These lines of authorities offer a choice between vote-counting (Waikiki) and automatic invalidation (Buell). We have not had occasion to consider this exact issue. In Carney, we found that four of seven fisheries board members had a disqualifying conflict. We then held the board's regulation invalid: "Because a majority of the votes cast to pass the regulation are invalid, so is the regulation." 785 P.2d at 549. Carney did not raise the issue now before us because there the measure would have been invalidated under either doctrine. We decline to follow the vote-counting approach adopted in Waikiki, notwithstanding its appealing ease of application. A council member's role in the adoption or rejection of an ordinance cannot necessarily be measured solely by that member's vote. A conflicted member's participation in discussion and debate culminating in the final vote may influence the votes of the member's colleagues. Moreover, the integrity required of public officeholders demands that the appearance of impropriety be avoided; the approach adopted in Waikiki will not always do so. See Falcon v. Alaska Pub. Offices Comm'n, 570 P.2d 469, 477 (Alaska 1977) (holding financial disclosure laws preserve the integrity and fairness of the political process both in fact and appearance); Warwick v. State ex rel. Chance, 548 P.2d 384, 388 (Alaska 1976) ("[I]t is important that the legislature not only. avoid impropriety, but also the appearance of impropriety. "). Cf. AS39.50.010(b)(1) (public office is a public trust which should be free from the danger of conflict of interest). The superior court erred in holding that Ordinance 92-18 is valid simply because Sweiven did not cast the decisive vote in its adoption. We also decline, however, to adopt the rule of automatic invalidation endorsed in cases such as Buell, 495 P.2d at 1362-63. The vote and participation of a conflicted member will not invariably alter the votes of other members or affect the merits of the council's decision. This is especially true if the conflict is disclosed or well-known, allowing other members to assess the merits of the conflicted member's comments in light of his or her interest. Automatic invalidation could needlessly overturn well-considered measures which GRISWOLD OPINION -Page 13 of 23 would have been adopted even if the disqualified member had refrained from participating. Automatic invalidation has the potential for thwarting legislative enactments which are not in fact the result of improper influence. The dissenting opinion cites HCC 1.12.030 as justification for its conclusion that participation by a disqualified member requires invalidation of the council's action. (EN 14) HCC 1.12.030 and 1.24.040(g), however, determine whether a member may vote or participate. They deal with disqualification, and do not address the consequences of participation by a conflicted member. The drafters of the code must have contemplated that violations might occur notwithstanding the prohibition. They nonetheless specified no remedy. Had they intended that particular consequences would follow from violation of the prohibition, such as the clear-cut remedies of automatic invalidation or vote-counting, they could have easily so provided. Their failure to specify a remedy for violation implies that the drafters intended that the courts fashion the remedy. In determining whether the vote of a conflicted member demands invalidation of an ordinance, courts should keep in mind the two basic public policy interests served by impartial decision-making: accuracy of decisions, and the avoidance of the appearance of impropriety. See generally Mark W. Cordes, Policing Bias and Conflicts of Interest in Zoning Decisionmaking, 65 N. D. L. Rev. 161 (1989). Guided by these basic policy concerns, we conclude that the following analysis should be applied in determining the effect of a conflicted vote. Initially the court must determine whether a member with a disqualifying interest cast the decisive vote. If so, the ordinance must be invalidated. Carney, 785 P.2d at 549. If the ordinance would have passed without the vote of the conflicted member, the court should examine the following three factors: (1) whether the member disclosed the interest or the other council members were fully aware of it; (2) the extent of the member's participation in the decision; and (3) the magnitude of the member's interest. The first two factors squarely bear on the accuracy of the council's decision. All three factors directly relate to any appearance of impropriety. If the interest is undisclosed, the ordinance will generally be invalid; it can stand only if the magnitude of the member's interest, and the extent of his or her participation, are minimal. If the interest is disclosed, the ordinance will be valid unless the member's interest and participation are so great as to create an intolerable appearance of impropriety. The party challenging the ordinance bears the burden of proving its invalidity. We recognize that this analysis is more difficult to apply than the vote-counting and automatic invalidation rules. Simple to apply, those rules are unacceptably rigid. The factual record before us is not so clear that we can decide as a matter of law whether invalidation is appropriate. The record does not reveal whether the other council members had actual knowledge of Sweiven's interest. While Sweiven's interest in his lot, where he lived and worked, was open and obvious, this is a matter of potential factual dispute to be explored on remand. Likewise, we cannot weigh the extent of Sweiven's participation or say whether it may have affected the outcome of the measure. Nor does the record establish whether Sweiven was likely in the foreseeable future to realize any significant appreciation from the reclassification by selling or servicing motor vehicles or by selling his lot to someone who intended to do so. We therefore remand so that the superior court, applying the analysis discussed above, can determine whether Ordinance 92-18 must be invalidated. GRISWOLD OPINION -Page 14 of 23 C. Public Interest Litigant Status The superior court found that Griswold was not a public interest litigant. That finding was clearly erroneous because Griswold met all four criteria of a public interest litigant in this case: (1) his lawsuit was designed to effectuate strong public policies; (2) if Griswold succeeded, numerous people would have benefited from the lawsuit; (3) only a private party could be expected to bring the action; and (4) Griswold lacked sufficient economic incentive to bring the lawsuit if it did not also involve issues of general importance. See Oceanview Homeowners Assn, Inc. v. Quadrant Constr. and Eng'g, 680 P.2d 793, 799 (Alaska 1984) (citing Kenai Lumber Co. v. LeResche, 646 P.2d 215, 222-23 (Alaska 1982)). In Oceanview, the plaintiff was a homeowners' association which objected to a Zoning Board of Appeals decision to set aside orders issued by the Zoning Enforcement Office of the Anchorage Department of Public Works. These orders restricted improvements to and the use of a private airstrip located in a residential area. 680 P.2d at 795. We held that the homeowners' association was a public interest litigant. Id. at 799. We found that "Oceanview's appeal was designed to vindicate a strong public policy in effectuating zoning ordinances, that numerous people in the area would have benefited had it succeeded, and that only a private party could have been expected to bring the appeal. " Id. The superior court stated that "it is hard to see how declaring a valid legislative enactment 'illegal' would be of benefit to anyone." That statement misapprehends the meaning of the public interest litigant criteria and has no application here. Gt7swold's appeal ' was designed to vindicate the strong public policy of ensuring that zoning ordinances are not arbitrary or capricious. This public policy is quite similar to, and at least as important as, ensuring that zoning ordinances are properly enforced. The importance of this issue to the general public is evidenced by the considerable amount of public comment regarding the passage of the Ordinance, prompting one planning commissioner to state, "[t]he car lot deal drew as much public comment as anything we (planners) have had but the sign ordinance. " Likewise, just as the Oceanview suit benefited at least the community of homeowners, Griswold's suit was intended to benefit the entire community of Homer, especially those who live, shop, and operate small businesses in the CBD, by challenging the City's alleged arbitrary deviation from its zoning plan. It is also true in this case, as in Oceanview, that only private citizens can be expected to bring suit against a municipality for a zoning violation of this nature, not because the issue is not one of general importance, as the superior court stated, but because the defendant in this case is the public entity which would normally be enforcing Homer's zoning code. Only the fourth component of the public interest litigant test appears even arguable. That criterion requires that the public interest litigant not have "sufficient economic incentive to bring the Lawsuit even if it involved only narrow issues lacking general importance. " Griswold lives in the CBD and owns an automobile repair shop on a lot located in the CBD but not included in the reclassified area. He thus continues to be restricted by his "grandfather" status in the operation of his business, and may lose his rights if he ceases operation for more than one year. The superior court agreed with Griswold that "any ~ economic advantage he might have gained, if successful, was slight. " The court nevertheless found that this fact "does not obviate the fact that one of [Griswold's] primary motives in GRISWOLD OPINION -Page 15 of 23 pursuing this litigation was to achieve this goal. " Thus, the court found that even a "slight" economic gain can be sufficient to constitute a plaintiff's primary motivation in bringing a lawsuit. Neither case law nor the record in this case supports the court's finding. In Oceanview we found that the homeowners' association which claimed that the "immediate effect of the [adverse zoning boazd] decision is to deny or diminish the value of real property owned or leased by appellant" was nevertheless a public interest litigant, citing Oceanview's "consistent emphasis on health and safety to the virtual exclusion of economic concerns." 680 P.2d at 799 n.3. Likewise, in this case, Griswold's emphasis was always on the harm to the community, the importance of public accountability, and fairness in municipal government. Griswold stated in a sworn affidavit that he did not have any expectation of financial gain as a result of filing the lawsuit. He wrote a letter to the Homer Advisory Planning Commission stating that he opposed rezoning any areas of the CBD to GC1. These facts are not contested. Moreover, it appears that Griswold only discussed the exclusion of his own lot to illustrate the equal protection problems and arbitrariness inherent to spot zoning cases, and to demonstrate his standing, disputed by the City early in the suit, to bring this lawsuit. See id. (stating that appellant's claim of standing due to immediate economic harm is "not synonymous with 'economic incentive' "). The court's emphasis on Griswold's "political motivation" also conflicts with its finding that the hope of slight economic gain was Griswold's primary motivation. Griswold satisfies Alaska's four-factor public interest litigant test. We consequently hold that he is a public interest litigant. IV. CONCLUSION We hold that Ordinance 92-18 does not constitute spot zoning, and consequently AFFIRM that aspect of the judgment below. We hold, however, that council member Sweiven had a conflict of interest which should have disqualified him from participating in consideration of the Ordinance. We consequently REVERSE the court's finding that there was no conflict of interest and REMAND so the superior court can determine whether the Ordinance must be invalidated. We also REVERSE that portion of the judgment imposing costs and fees on Griswold. RABINOWITZ, Justice, dissenting in part. I believe it is of particular significance .that Sweiven participated in the discussion of and voted for Ordinance 92-18. As the court observes, this ordinance does not directly affect all of Homer, or even a large segment of the City or an entire class of its citizens. More particularly, the ordinance directly affects only thirteen lots, including Sweiven's own, out of approximately 500 lots located within the Central Business District. The record further reveals Sweiven's belief that Ordinance 92-18 would increase the value of his property. Indeed Sweiven explicitly stated that "[the proposal] would increase the tax base and property values" of the area when recommending the Limited Rezone to the planning commission. (EN1) Based on the foregoing, the court correctly concludes that "Sweiven had a _substantial financial interest_ within the meaning of HCC 1.12.010(a)[ (EN2)] in a reclassification which would increase the permissible uses of his property .... The superior court's finding that Sweiven did not have a disqualifying conflict of interest is clearly erroneous. " Op. at 25, 28. GRISWOLD OPllJION -Page 16 of 23 My disagreement with the court's opinion goes to its discussion of the effect of Sweiven's conflict of interest and the appropriate remedy given the factual context of this case. Central to my differing analysis are the provisions of the Homer City ordinances which address the subject of conflict of interest. In my view, the court's analysis ignores that part of the Homer ?+,4unicipal Code 1.12.030, which states: A City Councilmember or Mayor with a conflict of interest under section 1.12.020 shall so declare to the body as a whole and ask to be excused from voting on the matter. However, a City Councilmember or Mayor with a conflict of interest, regardless of whether excused from voting, shall not be allowed to participate in discussion about the matter. (Ord. 92-49(A) sec.4, 1992; Ord. 86-22(S) sec.l(part), 1986).[(EN3)] The City of Homer, as expressed in section 1.12.030 of its Code, has adopted a policy which flatly contradicts the court's statement that [t]he vote and participation of a conflicted member will not invariably alter the votes of other members or affect the merits of the council's decision. This is especially true if the conflict is disclosed or well known, allowing other members to assess the merits of the conflicted member's comments in light of his or her interest. Regardless of the wisdom of the City of Homer's legislative enactment barring conflicted council members' participation in decisions, (EN4) the fact remains that the City of Homer has expressly adopted a rule specifically prohibiting conflicted council members from taking part in discussion or voting on the matter of interest. In fact, the prohibition on discussion is more stringent than the rule on voting -- even when the "Mayor or other presiding officer" decides that the member need not be excused from voting, and even when the council chooses not to override that decision by a simple majority vote, the member is nonetheless forbidden to participate in the discussion. The rule adopted by the court pays no heed to this participation ban contained in the City of Homer's municipal code. The portions of the court's rule which conflict with the express non-participation policy of HCC 1.12.030 are the following: If the interest is undisclosed, the ordinance will generally be invalid;. it can stand only if the magnitude of the member's interest, and the extent. of his or her participation, are minimal. If the interest is disclosed, the ordinance will be valid unless the member's interest and participation are so great as to create an intolerable appearance of impropriety. (Emphasis added.) In short, the court's rule would permit a conflicted council member to participate in the discussion of a matter before the body responsible for official action in cases where the conflicting interest has been disclosed, or where the conflicting interest is undisclosed and the conflicted member's participation does not create an intolerable appearance of impropriety. Although the court's formulation might well be adopted as a general rule, I think it inappropriate to do so in the face of an ordinance completely prohibiting participation GRISWOLD OPnvION -Page 17 of 23 by any city council member with a substantial conflicting interest in the subject matter of a proposed ordinance. In this regard, it is noteworthy that HCC 1.12.030 is not couched in terms of de minimis levels of participation. On the contrary, it imposes a complete ban on the conflicted member's participation. Given the participation ban imposed by HCC 1.12.030, Sweiven's conflict generating significant financial interest, and Sweiven's participation in the discussion of Ordinance 92-18, I conclude that the appropriate remedy is invalidation of the ordinance. As the court recognizes, a council member's role in the adoption or rejection of an ordinance cannot necessarily be measured solely by that member's vote. A conflicted member's participation in discussion and debate culminating in the final vote may influence the votes of the member's colleagues. The court also appropriately recognizes that the integrity required of public office holders demands that even the appearance of impropriety be avoided. (ENS) Guided by these principles and the City of Homer's explicit ban on a conflicted member's participation, I respectfully dissent from the court's remedy. Rather than remand this issue, I would hold Ordinance 92-18 invalid because of council member Sweiven's participation. (EN6) ENDNOTES: 1. AS 29.40.030 defines a comprehensive plan as follows: [A] compilation of policy statements, goals, standards, and maps for guiding the physical, social, and economic development, both private and public, of the first or second class borough, and may include, but is not limited to, the following: (1) statements of policies, goals, and standards; (2) a land use plan; (3) a community facilities plan; (4) a transportation plan; and (5) recommendations for implementation of the comprehensive plan. 2. Although the Borough's tax assessment records indicate that Guy Rosi Sr. owns only part of Lot 13, the parties and the trial court have referred to his parcel as "Lot 13. " We do the same. 3. This appeal concerns the validity of an enactment of a legislative body, rather than a decision of a zoning board. See Concerned Citizens of S. Kenai Peninsula v. Kenai Peninsula Borough, 527 P.2d 447, 452 (Alaska 1974) (analyzing a Borough Assembly's ordinance as a legislative enactment). We are here reviewing a superior court judgment rejecting claims that a municipal ordinance is invalid. We give independent consideration to the legal conclusions of the superior court. Beesley v. Van Doran, 873 P.2d 1280, 1281 (Alaska 1994). We will uphold the superior court's findings of fact unless they are clearly erroneous. In re R.K., 851 P.2d 62, 66 (Alaska 1993). GRISWOLD OPINION -Page 18 of 23 4. We have held that, although a planning commission is not required to make specific findings supporting its decisions, it must articulate reasons for its decisions sufficient to assist the parties preparing for review and to restrain agencies within the bounds of their jurisdiction. South Anchorage Coalition v. Coffey, 862 P:2d 168, 175 (Alaska 1993) (citing City of Nome v. Catholic Bishop of N. Alaska, 707 P.2d 870, 875 (Alaska 1985); and Kenai Peninsula Borough v. Ryherd, 628 P.2d 557, 562 (Alaska 1981)). 5. Griswold also argues that the Ordinance is invalid because it is inconsistent with the City's zoning code and comprehensive plan. We consider this argument in conjunction with our discussion of spot zoning. 6. The City argues that spot zoning should not be considered per se illegal, but merely descriptive. Thus, whether spot zoning is valid or invalid would depend upon the facts of each case. See Chrismon v. Guilford County, 370 S.E.2d 579, 588 (N. C. 1988); Save Our Rural Env't v. Snohomish County, 662 P.2d 816 (Wash. 1983); Tennison v. Shomette, 379 A.2d 187 (Md. Spec. App. 1977). However, we will follow the vast majority of jurisdictions which hold that, while not all small-parcel zoning is illegal, spot zoning is per se illegal. See Chrismon, 370 S. E.2d at 588 (noting that majority of jurisdictions regard spot zoning as a legal term of art); 3 Edward H. Ziegler Jr., Rathkoph's The Law of Zoning and Planning sec. 28.01 n.2 (4th ed. 1995) (compiling cases holding same); Anderson, supra, sec. 5.12, at 359 n.46 (same). Thus, spot zoning is simply the legal term of art for a zoning decision which affects a small parcel of land and which is found to be an arbitrary exercise of legislative power. Cf. Concerned Citizens of S. Kenai Peninsula, 527 P.2d at 452 ("[TJhe constitutional guarantee of substantive due process assures only that a legislative body's decision is not arbitrary but instead based upon some rational policy. "). 7. The Ciry argues that Griswold could not show any "concrete detriment" but instead "could only argue that car lots were not pleasant to look at, they didn't alleviate traffic, and other similar arguments. " 8. At trial the City's planner testified that the Ordinance was restricted to Main Street to avoid certain negative impacts in more tourist-oriented areas. These negative impacts include traffic congestion, visual blight, detraction from the pleasing aesthetic nature of Pioneer Avenue, and conflict with the comprehensive plan's goal of promoting sidewalks, pocket parks, and pedestrian amenities in the CBD. 9. Not all of the goals articulated by the City can be considered legitimate per se. For example, any caning change which eases restrictions on property use could be said to further the goal of "filling in vacant places. " Similarly, increasing the tax base and the employment of a community is not automatically a legitimate zoning goal. See Concerned Citizens for McHenry, Inc. v. City of McHenry, 395 N. E.2d 944, 950 (Ill. App. 1979) (an increase in the tax base of the convnunity as the primary justification for a rezone is "totally violative of all i the basic principles of zoning"); Oakwood at Madison, Inc. v. Township of Madison, 283 A.2d 353, 357 (N.J. Super. 1971) (finding that "fiscal zoning per se is irrelevant to the GRISWOI.D OPINION -Page 19 of 23 statutory purposes of zoning (although] 'alleviating tax burden is a permissible caning purpose if done reasonably and in furtherance of a comprehensive plan) (citing Gruber v. Mayor of Bariton, 186 A.2d 489, 493 (N.J. 1962))"'; Chrobuck v. Snohomish County, 480 P.2d 489, 497 (Wash, 1971) (allowing industrial development on only one site would be arbitrary spot zoning despite the potential tax revenue the oil refinery would produce). Thus, the goal of increasing the tax base and employment opportunities is usually legitimate only if the ordinance is otherwise reasonable and in accordance with the comprehensive plan. Some courts have allowed inconsistent small or single parcel rezoning in order to raise tax revenues or stimulate needed industry if the public receives higher tax revenue or employment industries. Ziegler, supra, sec. 28.04, at 28-20. Generally, the facility being built must be indisputably needed, and the city must have secured assurance as to the existence and amount of increased employment and tax revenue. For example, in Information Please Inc. v. County Commis of Morgan County, 600 P.2d 86 (Colo. App. 1979), the county rezoned agricultural area to industrial to accommodate an electric utility after determining the plant would add $46,000,000 to the tax base of the county, and provide approximately 250 jobs after it was completed. Id. at 88. In Watson v. Town Council of Bernalillo, 805 P.2d 641, 647 (N.M. App. 1991), the county made findings that the rezone would employ eighty-seven people from the community and would produce tax revenues constituting twenty-five percent of the city's budget. In Chrismon v. Guilford County, 370 S. E.2d 579, 590 (N. C. 1988), the court approved the rezoning of two contiguous tracts from agricultural to conditional use industrial district to facilitate expansion of analready-operating grain elevator. The court stated that the "[e]vidence clearly shows that [the owner's] operation is beneficial to area farmers. " Id. It also noted that spot zoning will be allowed even where the adjacent property owners object and the owner receives a greater benefit than others if there is a community-wide need for the rezone. Id. 10. Currently, Rosi Jr.'s lot is not affected by Ordinance 92-18 since that lot has been contract rezoned to GC1. 11. There may be an immaterial discrepancy about the size of the reclassified area. There was testimony Ordinance 92-18 affected 7.29 acres, but the trial court's memorandum decision stated the affected lots contained about 7.44 acres. That decision did not state that the exact size of the parcel was significant to its determination that the amendment does not constitute illegal spot zoning. 12. In addition, Homer's City Code mandates that a city official "disclose any financial interest in any matter before the board or commission before debating or voting upon the matter" and prohibits the official from participating in the debate or vote unless the board or commission determines that a financial interest is not substantial as defined in HCC 1.12.010. HCC 1.12.070 (emphasis added). 13. At first glance it may appear that the Executive Branch Ethics Act, AS 39.52.010-.960, which explicitly supersedes the common law on conflicts of interest, see AS 39.52.910, requires intent on the part of public officials subject to that Act. See AS 39.52.120(b)(4). However, that Act does not apply to municipal officials. Gates v. City of Tenakee Springs, GRISWOLD OPINION -Page 20 of 23 822 P.2d 4~5, 462 (Alaska 1992). Thus, the common law of conflicts of interest continues to apply to $nunicipal officers. Carney, 785 P.2d at 547-48. 14. The :portion of HCC 1.12.030 cited by the dissent states: A City CounciImember or Mayor with a conflict of interest under section 1.12.020 shall so declare to the body as a whole and ask to be excused from voting on the matter. However, a City Councilmember or Mayor with a conflict of interest, regardless of whether excused from voting, shall not be allowed to participate in discussion .about the matter. (Ord. 92-49(A) sec.4, 1992; Ord. 8f}22(S) sec.l(part), 1986). This lan~ge is nearly identical to the similar prohibition in HCC 1.24.040(g), but also applies ta- she mayor. ENDNOTE:S (Dissent): 1. The court notes: The record reflects that when Sweiven was advocating rezoning the entire CBD, he was quoted in the Homer News as stating: "Even my own business. I can't sell my business, but I can sell my building, and someone who wants to put a VW repair shop there -- he can't. ..It's not just me. This gives everybody in town a lot more options as far as selling their business. " Finally, Sweiven refrained from voting on Ordinance 94-13, which would have repealed Ordinance'92-18, on the ground that he had a potential conflict of interest. Op. at 27. 2. At afl times relevant to the case at bar, HCC 1.12.010(a) defined "substantial financial interest" as follows: 1. An interest that will result in immediate financial gain; or 2. An interest that will result in financial gain which will occur in the reasonably f foreseeable future. (HCC 1.12.010 has subsequently been amended.) HCC 1.12.fl20 provides: A City Councilmember or Mayor with a substantial financial interest in an official action to be taken by the Council has a conflict of interest. (Ord. 92-49(A) sec. 3,1992; Ord. 86-22(S) sec. 1(part), 1986). GRISWOLD OPIMON -Page 21 of 23 3. HCC 1.12.040 provides: The Mayor or, in his absence, the Mayor Pro-Tem or other presiding officer, shall rule on a request by a City Councilmember to be excused from voting on a matter because of a declared conflict of interest. The Mayor Pro-tem or other presiding officer shall rule on a request by the Mayor to be excused from participating in a matter because of a declared conflict of interest. (Ord. 92-49(A) sec.5, 1992; Ord. 86-22(S) sec.l(part), 1986). HCC 1.12.050 further provides: A decision of the Mayor or other presiding officer under Section 1.12.040 may be overridden by a majority vote of the City Council. (Ord. 86-22(S) sec.l(part), 1986). 4. This court has consistently held that it is not our function to question the wisdom of legislation. University of Alaska v. Geistauts, 666 P.2d 424, 428 (Alaska 1983); Alaska Interstate v. Houston, 586 P.2d 618, 621 (Alaska 1978). 5. See generally Mark W. Cordes, Policing Bias and Conflict of Interest in Zoning Decisionmaking, 65 N. D. L. Rev. 161 (1989). Here the author writes in part: The second and more common provision is to prohibit participation when a conflict of interest exists. The rationales behind this are obvious. Although disclosure has some restraining effect, a significant conflict might still affect the substantive outcome of a decision. More importantly, perceptions of fairness and legitimacy are only partly addressed by disclosure. For these reasons disqualification rather than disclosure is the preferable approach. Although in some instances disclosure might adequately address the need for impartiality, in many instances it will only be partially effective. .The inconvenience of adjusting to the disqualification of a decision maker is not so great as to justify the threat to accuracy and legitimacy posed by the requirement of mere disclosure. Beyond determining what effect a conflict of interest should have on a particular decision maker is what judicial remedies should be available when a zoning decision in fact involved an improper conflict of interest. In those instances in which the biased decision maker casts a diapositive vote, courts have consistently invalidated the decision. This seems appropriate in that both accuracy and legitimacy concerns are clearly threatened when a decision appears to turn on the vote of aself-interested decision maker. A more difficult issue is whether the participation of a conflicting member whose vote was not determinative to a decision should also result in invalidation. This might occur in two GRISWOLD OPINION -Page 22 of 23 general situations. First is where the tainted vote was numerically unnecessary for the t decision. Courts have evenly split on this issue, with a slight majority favoring invalidation. Courts refusing to invalidate such decisions have primarily reasoned that even without the tainted vote the decision would have occurred anyway and therefore invalidation is improper. In this sense the threat to accuracy and legitimacy concerns is arguably de minimis when the particular vote is apparently not crucial to a decision. In particular, legitimacy concerns are less threatened when a decision appears inevitable. As a result, the administrative burden of invalidating and remanding a decision outweighs any threat to substantive results and perceptions of fairness. Despite these distinctions, several strong reasons exist for invalidating decisions even when a tainted decisionmaker's vote was numerically unnecessary for the decision. First, courts invalidating such decisions have noted that collegial decisionmaking ideally involves the exchange of ideas and views, often with the intent of persuading toward a particular position. The actual contribution of any particular decisionmaker cannot be measured with precision, but frequently extends significantly beyond the actual vote cast. For this reason, a significant threat to accuracy can exist even when a particular vote was numerically unnecessary for the decision. For similar reasons legitimacy concerns also exist even when a vote is numerically unnecessary. Although legitimacy concerns are less substantial in such circumstances, the perception of collegial decisionmaking and the potential influence of a tainted decisionmaker on others would violate "appearance of fairness" standards. Thus, for both accuracy and legitimacy reasons the better view is that even when a vote is numerically unnecessary for a i decision courts should still invalidate it. Id. at 214-21b (footnotes omitted). 6. I note my agreement with the court's other holdings. GRISWOLD OPINION -Page 23 of 23 ~zh ~' PRESTON GATES & ELLIS ATTORNEYS CONDITIONAL USES Planning Commissioners Seminar Anchorage, Alaska February 11, 1995 Presented by: Lee Sharp Conventional zoning ordinances generally establish several categories of uses. Some of the more common categories are: 1. Permitted uses (permitted outright, as of right,- etc.) 2. Accessory uses 3. Conditional uses 4. Nonconforming uses ("grandfathered" uses) Within the foregoing categories, there is usually little confusion about the purpose or function of each of these distinct use categories. There is, however, often a blurring of the line between a conditional use (CU) on the one hand and a variance or a planned unit development (PUD) on the other. P ose. Traditionally, a zoning ordinance sets out for each zoning district specific conditional uses. These aze uses that may be permitted upon meeting certain additional requirements. Uses that aze appropriate for conditional uses aze those that aze identified as being appropriate for a particulaz zone but which, because of certain chazacteristics, may be incompatible with permitted uses. For this reason, such uses aze .generally required to undergo a review by a planning commission or other body in which a specific project is examined and the body determines what special conditions or restrictions should be placed upon the use in order to ensure that it is compatible with permitted uses. The CU is cleazly a flexible zoning tool that enables planners to customize zoning restrictions to meet specific community needs. There aze, however, questions that aze often left unanswered by the CU provisions of some zoning codes. For example, it is sometimes uncleaz whether a CU applicant has an A PARTNERSHIP INCLUDING A PROFESSIONAL CORPORATION COEUR D'ALENE LOS ANGELES PORTLAND SEATTLE SPOKANE TACOMA WASHINGTON. D.C. absolute right to a CU permit or whether it may be denied at the discretion of the body or denied if there is justification for the denial. That is, the ordinance language may lead one to the conclusion that it is the duty of the reviewing body to determine what conditions must be placed on a proposed CU and that it may not simply deny the use. Other ordinances make it clear that while a listed CU may be appropriate in some locations, it might not be appropriate in other locations and the reviewing body has the discretion to deny a CU application solely on .the basis that the- proposed location is inappropriate. Such reasons might be that the neighborhood in which the proposed CU is to be established is already adequately served, that there does not appeaz to be a reasonable set of conditions that can be imposed that would make the use compatible at the proposed site or for other specific reasons. If a CU application is denied, the body denying the use should include in its denial, findings of fact that support its ..decision to deny. It's Not a Variance. Lay members of the public who become involved in planning and zoning administration sometimes do not distinguish between the basic functions and purposes of variances and conditional uses. A variance is generally an absolute right if the landowner can show that denial of the variance request would result in an undue hazdship; that is, denial -would amount, for all practical purposes, to a prohibition of all reasonable use of a property. A variance penmits a landowner to use his or her property in a manner that clearly violates a ~ ` requirement. of the zoning code. In Alaska, non-home rule municipalities may grant only density .variances and not use variances; that is, a variance may not be granted to permit a use of property that is otherwise prohibited. Not only must there be an undue hazdship, but that hardship must generally arise out of some peculiarity of the property. A CU, on the other hand, is usually not an absolute right and the entitlement to a CU permit is not .conditioned upon showing some peculiarity of the site or undue hazdship if the application is denied. The CU process focuses instead upon the means of making a proposed use compatible with the neighborhood and with uses that aze permitted outright in the district. While, under a variance procedure, the body hearing the application can grant deviations from density requirements such as setbacks, yard requirements, height restrictions, FAR's and maximum ,,lot occupation requirements, deviations from density requirements generally aze not permitted as a part of a CU application. In fact, in most situations the hearing body will increase these requirements as a means of minimizing the adverse impact of the proposed use. Planning commissions and boazds; before which CU applications come should ensure that restrictions that aze applicable to all i ses within a district aze not inadvertently relaxed under the terms of a proposal made by a CU applicant unless the zoning code specifically allows such a relaxation. This is not to say, however, that a variance could never be granted in conjunction with a CU; it is just that the variance would have to be justified independently of the CU application. And It's Not a PUD. A CU is not a PUD or a similaz vehicle. The PUD generally permits a developer to propose an integrated development within a zoning district in which the developer is permitted a relaxation of certain use and density standazds in exchange for 2 providing amenities that aze not otherwise required by the ordinance. For example, under a PUD application, a developer might be permitted to encroach into a setback or yard area in exchange for establishing and maintaining natural screening of some minimum height and depth. They may be permitted to exceed certain density restrictions in exchange for establishing a community pazk or open space azea. PUDs generally require minimum acreages that aze to be included in the development and that"the development involve integrated or complimentazy uses on the various lots proposed for the development.- While a concern in both the PUD and the CU situation is with minimizing the adverse impact on properties not involved, this is only one of several factors generally considered in a PUD application. However, it is the primary focus in a CU application. .The CU application involves only a single zoning lot and use while the PUD involves multiple lots and uses. Lastly, the CU is for the purpose of adding restrictions while the PUD involves the balancing of a relaxation of some requirements against the increase of other requirements and exactions. Standazds. Most ordinances have a sepazate section that sets out the procedures for reviewing and deciding conditional use permit applications. Some of these set out very generalized standazds referring to the public good and compatibility with the comprehensive plan and neighborhood development. _Others set out specific matters that are to be considered such as traffic generation, noise, off-site glare, parking, neighborhood or community need and other matters. When the ordinance sets out specific standards, each such standazd should clearly be addressed by the body. This is generally done through consideration of a staff report to the body that addresses each of the standards. Although it is difficult to generalize about conditional uses (but you will notice that it has not stopped the author from doing so), planning commissioners and members of boazds of adjustment should be cazeful when reviewing conditional use applications that they do not handle them as though they are variances or PUD applications. While conditional uses provide flexibility in regulating land use, they generally are not meant for the purpose of relaxing standazds that would otherwise apply, 'but are for .the purpose of imposing additional restrictions. And, as always, such bodies must usually ensure that they make findings to support their decisions and that there aze adequate facts in the record to support their findings. "'-~..,~ h:\gls\seminars\conditio. l 3 ~ COMPARISON OF VARIANCE AND CONDITIONAL USE by Lee Sharp Preston Gates & Ellis ..Variance Conditional Use i. 'Purpose is to ensure that the L Purpose is to deal with uses that have .application of zoning regulations does not a particular, potentially adverse, impact on the operate to deny all reasonable uses of a surrounding area that cannot be predetermined property that is peculiar when compared to and controlled by general regulations. Is used other nearby property to which the same to ensure such uses will be compatible with regulations apply. surrounding development by placing conditions on the use to minimize or eliminate adverse impacts. 2. ~ To accommodate peculiarities of the 2. Not dependent upon peculiarity of the : land. land, but triggered by the peculiar effect of the ; use on the neighborhood. ~ . .. -~ :.. 3. Exceptional hardship must be shown. 3. Hardship is not relevant. F = 4. Deals with density restrictions (and not 4. Deals with use and with restrictions on use restrictions in most places in Alaska). use and density. 5. ~ Allows relaxation of density 5. Not for the purpose of relaxing density restrictions where peculiarity and undue restrictions but to permit additional hardships are shown. Relaxation not allowed .restrictions to be placed on the use; however, .- for atrade off. relaxation of density restrictions. may occur if the conditional use procedure is applied to _ planned unit developments where trade-offs are allowed. 6. '^~P-llows a condition expressly 6. Allows a use that is expressly prohibited by~the regulations. permitted (but which requires special conditions). 7. Is a dispensation to violate the law. 7. Is a permitted use within the district. 8. Very strict standards apply. 8. More generalized standards apply, ems:, consistency with the comprehensive plan and purpose for the zoning ordinance. 9. Is a property owner right if property 9. Generally is not aright if use cannot be - meets requirements; is not a flexible planning made compatible with neighborhood; is a .tool 'flexible planning tool- 10. Property owner is entitled to a 10. Generally entitled to a permit if variance if can show peculiarities of property property owner can show use is compatible leading to hardship under the regulations. with neighboring property and other permitted uses within the district. 11. Quasi judicial proceeding (little 11. Quasi legislative or quasi judicial discretion involved in granting or denying).. proceeding`depending on situation, but substantial. discretion involved. h:lglslseminarsicompare.doc ~_ a.~,,,~. 1 '~ PRESTON GATES & ELLIS ATTORNEY S VARIANCES TO LAND USE AND PLATTING REGULATIONS Planning Commissioners Seminar Anchorage, Alaska February 11, 1995 Presented by: Lee Sharp "Remember, my friend, a variance is a special dispensation to violate a law that the rest of us must obey." ~Z-L Anonymous Extraordinary Remedy For An Extraordinarv Situation. Platting and zoning regulations apply to all property uniformly. Within a particular zone, zoning ordinances apply to all property uniformly. For a particular type of subdivision, the platting regulations apply to that subdivision and all similarly situated subdivisions in the same manner. There is a certain quid pro quo in platting and zoning regulations. A property owner who develops or subdivides his property is required to follow the applicable regulations. He does so knowing that everyone else similarly situated will also have to follow the same regulations. If the regulations were not uniformly applied and special favors were granted to those who applied for them, the regulation of the subdivision and use of land would become a sham. However, it is also recognized that not every parcel is the same, and some property may be so unusual as to result in an undue substantial hardship on the owner of the properly or a denial of all beneficial uses of the property if a uniform and strict application of the regulations is made. When a regulation makes property unusable for any purpose, courts will generally fmd that there has been a taking of the property. Thus, it is necessary to provide some flex in the joints of zoning and platting regulations to ensure that regulations that must be applied uniformly do not act as a taking of property. because of some peculiarity of that property. As was noted by the Rhode Island Supreme Court in Reynolds v. Zoning Board of Review of Town of Lincoln, 191 A.2d 350 (R.I. 1963) at 352, A variance ... is designed to preserve the constitutionality of the legislation. It is invoked to avoid the confiscatory effect that would follow a literal enforcement of some term of a zoning ordinance operating to deprive an owner of all ~ beneficial use of his land. It has been described as an escape hatch. A PARTNERSHIP INCLUDING A PROFESSIONAL CORPORATION COEUR D'ALENE LOS ANGELES PORTLAND SEATTLE SPOKANE TACOMA WASHINGTON, D.C. CT„TF ann 1?0 L STREET ANCHORAGE. ALASKA 99501-1937 PHONE: (907) 276-1969 FACSIMILE: (907) 276-1365 A variance is designed as an escape hatch from the literal terms of an ordinance which, if strictly applied, would deny a property owner all beneficial use of his land and thus amount to a confiscation. Lincourt v. Zoning Board of Review of the City of Warwick, 201 A.2d 482 (R.I., 1964) at 485-86. In Alaska, our Supreme Court has recognized that variances provide an escape hatch or safety valve for the individual landholder who would suffer special hardships from a literal application of a land use ordinance. City and Borough of Juneau v. Thibodeau, 595 P.2d 626 (Ak, 1979) at 632. However, because the law should apply uniformly to everyone who falls within its scope, variances are granted sparingly and only under exceptional circumstances. Variances are the exception, rather than the rule. Ivanovich v. Citv of Tucson Boazd of Adjustment, 529 P.2d 242 (Ariz. 1975); Heady v. Zoning Board of Appeals for Town of Midford, 94 A.2d 789 (Conn., 1953); Lovely v. Zoning Board of Appeals of Citv of Presque Isle, 259 A.2d 666 (Me. 1969). The courts rule that variances should be granted sparingly not only because they aze justified only in exceptional circumstance, but because they also amount to a special dispensation to violate the law. Board of Adjustment of City of Fort Lauderdale v. Kremer, 139 So.2d 448 (Fla., 1962); Mitchell Land Co. v. Planning and Zoning Board of Appeals of Town of Greenwich, 102 A.2d 316 (Conn., 1953). It can be seen that the granting of a variance is not an every day occurrence nor a matter that is to be handled lightly. Alaska Statutes Title 29, the Alaska municipal code, recognizes that the granting of variances is an integral part of land use regulations but it specifically prohibits use variances, variances based on self-imposed hazdships and those sought solely to relieve pecuniary hardships or inconvenience. AS 29.40.040(b). Included for your review as Attachment A are the variance provisions from Title 29. A review of the zoning codes of Alaskan municipalities reveals for common threads that run through the codes. They are that 1. the property must be peculiaz; that is, different from other property in the neighborhood or zoning district (not different from property in the municipality at-large); some ordinances address peculiarity of a building or structure, .. , _2. the peculiarity arises out of natural conditions of the land or surrounding development, 3. because of the peculiarity, a literal application of the zoning (platting) regulation would work a hazdship on the property owner, i.e., prevent reasonable use of the property or deny the owners rights or uses commonly enjoyed by others in the neighborhood, and -2- 4. the variance must be the minimum necessary and must be consistent with the ~ comprehensive plan, safety, welfare, etc. Peculiarity. There are thus two main elements that must be considered before a property even qualifies for a variance. The first is the peculiarity element, and the second is the denial of reasonable use or undue substantial hardship element, often characterized as unnecessary hardship. The terms "undue hardship" and "unnecessary hardship" have been viewed as equivalent terms. Livel , su ra. The peculiarity element has been viewed from two different aspects. Some courts have said that the regulation must have a peculiar impact on the property, that is, that the impact of the restriction on the applicant's property is different from the regulation's impact on other properties that are similarly situated. Township of West Deer v. Bowman, 333 A.2d 792 (Pa., 1975). Others have indicated that there must be a peculiarity of the property. In Ivanovich, supra, the Arizona Court of Appeals held that for a variance to be granted there must be a fmding that the . .situation or condition of the property in question is extraordinary and exceptional and that the application of the zoning requirement would cause ecp uliar and exceptional practical difficulties or exceptional and undue hardship. Ivanovich, supra at 248 (emphasis in original). Other courts have indicated that the need for the variance must arise out of unique circumstances without focusing upon either the property or the regulation. Taxpayer's Assn of South East Oceanside et al. v. Board of Zonins Appeals of Town of Hempstead, 93 N.E.2d 645 (N.Y. Ct. App. 1950). In Turner v. Richards, 366 A.2d 833 (Del., 1976) the Delaware court held that the hardship justifying a variance had to be inherent in the particular property. The Alaska Supreme Court stated it this way: Peculiarities of the specific property sufficient to warrant a grant of a variance must arise from the physical conditions of the land itself which distinguish it from other land in the general area. Thibodeau, supra, at 635. Although AS 29.40.040 does not directly address the source of the peculiarity, it does prohibit variances where the "special conditions" are caused by the person seeking the variance, thus shifting the focus from the owner's situation to land. Whether the analysis proceeds from the basis that there must be some peculiarity of the land or there must be some peculiar impact of the regulation seems immaterial as it is difficult to conceive of a situation where there would be a peculiar impact of a regulation where there was not some peculiarity of the property that caused the unusual impact. In any event, the ~ physical peculiarity of the land approach has been recognized by the Alaska Supreme Court. -3- Stated another way, a condition that is personal to the owner is not relevant. For example, a couple that owns a single family home in a single family zoned area desires to put on a 600 square foot addition that encroaches upon a setback requirement. The addition is needed to house the couple's aged mother because they cannot afford the cost of the necessary nursing home care for her. Their application for a variance should be denied for several reasons, one of which is that the "peculiarity" is not one that is physical or inherent in the land itself; instead, it arises out of the particular needs and desires of the couple. There is no physical feature of the lot to distinguish it from other lots in the area; the lot is not peculiar. Hardshiu. The other major element that must be present is that the peculiarity give rise to a substantial or undue hardship, or deny reasonable use of the property. Numerous courts have been faced with the question of what is meant by an undue or unnecessary hardship. Remembering that the purpose of a variance is to prevent a land use regulation from amounting to a confiscation of property where there is some peculiarity, it is not difficult to understand that undue and unnecessary are equated with what amounts to a taking. Courts require a showing that there is no possible beneficial use of property or that the strict application of the ordinance to that particular parcel would cause a loss of all beneficial use of the property. It has also been interpreted as meaning that there must be a showing that the land cannot yield a reasonable return. Taxpayer's Assn. of South East Oceanside et al., supra; Lincourt, supra; Board of Adjustment of New Castle County v. Henderson Union Association, 374 A.2d 3 (Del. 1977); Franco v. Zoning Board of Review of Town of Smithfield, 156 A.2d 914 (R.I. 1959). A variance applicant must show that denial of the variance would leave them with no other reasonable use of the property or that no reasonable return could be made on the property. Courts reject the plea of variance applicants that they are unable to make as much money on their property if the variance is denied. In Pincus v. Power, 376 Pa. 175, 101 A.2d 913 (1954),the Pennsylvania Supreme Court held that where the only hardship shown by the applicants for a variance was that their property would be worth 400 % more if the variance were granted was not the basis for granting a variance. In Broadway, Laguna Vallejo Association et al v Board of Permit Appeals of the City and County of San Francisco et_al., 59 Cal. Rptr. 146, 427 P.2d 810 (1967) the California Supreme Court recognized that virtually any circumstance that could be translated into economic terms would lead a developer to apply for a variance and that the mere desire to construct a more profitable project was not a basis for relief from land use regulations. The court noted at p. 819 that "variances were never meant to insure against financial disappointments." At p. 815, the court noted that if the desire to increase profits was sufficient to justify a variance, then almost all developers would qualify for variances and the public interest "would inevitably yield to the private interest and the maximization of profits." Similarly, the Arizona Court of Appeals in Ivanovich, supra, noted that there would be no occasion for land use regulation if variances were to be granted on the basis of apparent monetary distress of the property owner. In West Deer, su ra, the Pennsylvania court held that unnecessary hardship was not demonstrated by evidence showing -4- that the applicant would benefit if relieved of the land use restriction. The loss of economic benefit has been uniformly rejected as a basis for a variance. Cohen v. Zoning Board of Adiustment of the City of Philadelphia, 276 A.2d 352 (Pa., 1971); Blackman v. Board of AQneals of Barnstable, 136 N.E.2d 198 (Me. 1956). And in Alaska, the Supreme Court noted in Thibodeau, supra at 635; The assertion that the ordinance merely deprives the landowner of a more profitable operation where the premises have substantially the same value for permitted uses as other property within the zoning classification argues, in effect, for the grant of a special privilege to the selected landowner. We do not believe that the variance provision in the instant ordinance is intended to achieve such an inequitable result. Alaska Statute 29.40.040(b) dealing with the board of adjustment (zoning) makes this a statutory prohibition. That section provides in pertinent part: A variance ... may not be granted ...solely to relieve pecuniary hardship or inconvenience. Unfortunately, just how difficult the "practical difficulty, " or the "substantial or undue harship" must be is not clear and a planning commission or other body considering whether the hardship requirement for a variance has been met should not accept a low threshold for this standard. First, remembering that the primary purpose of a variance is to prevent the zoning code from operating as a taking of property, it can be seen that ordinary practical difficulties faced by a landowner would generally be insufficient to even approach anything that looks like a taking. Further, Title 29 prohibits the granting of a variance "solely to relieve pecuniary hardship or inconvenience. " Both practical difficulties or undue hardships can usually be measured in terms of how much it would cost to overcome the problem. Under the statute, pecuniary hardship, standing alone, is insufficient to justify a variance. Further, most moderate and lesser practical difficulties could just as well be categorized as inconveniences. Inconvenience is also specifically rejected by the statute as a basis for a variance. For these reasons, even though the code is written in the disjunctive, (e.g. "practical difficulties and undue . harship"), a variance applicant who relies on practical difficulties to justify a variance should be required to show serious and substantial practical difficulties if the spirit of the ordinance and of general variance principles is to be honored. Self-Imposed Hardshins. As was noted in the preceding discussion, the peculiarity of the lot generally must arise out of some natural condition of the lot. An artificial condition of the lot generally is not relevant. A structure placed on a lot is an artificial condition, not a natural one. Therefore, the existence or placement of the structure on the lot does not generate a peculiarity. As it is the -5- natural condition of the lot that must lead to the hardship; a qualifying hardship generally cannot arise out of an artificial condition of the lot. Courts have long recognized that self-imposed hardships do not qualify for a variance. In Alaska, this restriction on variances is reinforced in Alaska Statute 29.40.040(b) which provides, in part: A variance . may not be granted if (1) special conditions that require the variance are caused by the person seeking the variance .... Where the applicants are the ones who caused the nonconforming structure to be built or it was their agent who, for whatever reason, built the structure in violation of ordinance restrictions, it is clear that the "hardship" involved is "because of special conditions caused by actions of" the applicants. They may not point to their builder and cast the blame on him. Even if the builder is totally at fault, that has little or no relevance to the variance proceeding. What is before the board is a determination of whether the land itself meets the requirements of the conditions for granting a variance under the code, not whether the applicant is guilty or innocent or a third party is the direct cause of the violation. If artificial or self-imposed hardships qualified for a variance, development restrictions on land would soon become a nullity. All one would have to do is build in violation of the regulation and hope that there is a substantial enough improvement in place by the time the administration discovers the violation that one will be able to show aself-imposed hardship of sufficient magnitude to qualify for a variance. If this is the standard adopted, the person who puts his life savings into a three story mini mansion would qualify for a variance while the wealthy person who built a 300 square foot summer cabin probably would not qualify. However, it should be obvious that the encroachment of the larger structure into a setback will have a far greater impact on the neighboring property or water body than would the same amount of encroachment by the smaller structure. Yet it is the larger structure that would be given a dispensation to continue its violation of the law while the smaller structure would not be given such a dispensation. This inconsistency should help bring home the fact that the regulation of the use of land is done independently of any characteristic of the owner. It makes no difference whether the owner is rich, poor, crippled or healthy, nor how "guilty" he or she is in causing the violation. The adverse impact on neighboring property of a nonconforming structure is the same without regard to any characteristic of the owner. It makes no difference whether the structure is the dream house the owners have planned for years and into which they have placed every penny of their assets or whether it is merely one of dozens of houses they might own. It makes no difference whether they ordered their contractor to place the structure in a violating location or to build it too large or too tall, or whether its placement and size were left totally to the discretion of their builder and they had nothing whatsoever to do with its placement or size. The impact on abutting property, the community (and in the case of shoreland property, the water body), will be the same. -6- The policymakers for the municipalities have determined that water bodies, streets and neighboring property should be protected and that one way to provide that protection is to prohibit any part of a building from being constructed within certain distances of water bodies, street lot lines and side or rear lot lines. There are also other density restrictions such as lot coverage, FARs, building heights, etc. Persons who own or build a structure in violation of these density requirements seek to justify a variance based on the hardship they would have to endure to bring their structure into compliance with the law. No one should be allowed to bootstrap themselves into such a dispensation and, indeed, the courts reject that approach. In Elwyn v. City of Miami, 113 S.2d 849 (1959) the Florida Third District Court of Appeal, at page 852, quoting from a Florida Supreme Court case said: The authorities are generally in accord on the proposition that in seeking a variance on the ground of a unique or unnecessary hardship, a property owner cannot assert the benefit of a 'self-created' hardship. Elwyn, supra at 852. The New Jersey Supreme Court in Place v. Board of Adjustment of Saddle River, 200 A.2d 601 (1964) ruled that self-imposed hardships were irrelevant. There, a homeowner, after measuring from what he thought were the stakes for his property, commenced construction of a fallout shelter. However, a later survey of the property indicated that the stakes from which the homeowner had taken his measurements were incorrectly located. He had constructed his fall-out shelter 25 feet from a side lot line from which there was a 40 foot setback requirement. The New Jersey Supreme Court noted: ...the hardship to which ...the statute refers must arise by reason of one of the specified conditions of the property. ...hardship created by the owner which is unrelated to the physical characteristics of the land is not contemplated by [the statute] and accordingly is not sufficient grounds for the granting of a variance in this case. Place, su ra at 605. In another New Jersey case, Deer-Glen Estates v. Board of Ad,~ustment and Appeal of the Borough of Fort Lee, 39 N.J.Super. 380, 121 A.2d 26 (1956) the appellate division of the New Jersey Superior Court had before it the appeal of a variance granted where the owner had built a house encroaching eleven inches into a ten foot side yard setback. The court noted that the hardship of which the owner complained was one brought on by his own act or omission. Then, addressing the question, of whether the eleven inch encroachment was significant enough for the municipality to require compliance, the court had the following to say: If the latter violation is permitted, where will the line be drawn? A municipality need not overlook, nor will we require it to overlook, such a deficiency merely because it arose through the negligence or inattention of the owner and his -7- employees. A builder may not, after his structure is partially completed, come } into the building inspector's office with a new plan, and request, belatedly, that a certificate of occupancy be issued because of an alleged mistake by the surveyor, architect, contractor, or any of their employees. To permit him to do so would open the door to unconscionable, if not fraudulent, conduct on the part of builders. "Mistake" would then become nothing more than a guise for evading the legal requirements of a zoning ordinance. The citizens of Fort Lee have a right to rely on the valid provisions of their zoning ordinance, and have a right to demand its protection. (emphasis added) Deer-Glen, supra at 29. It would be difficult to state more forcefully the case for denial of a variance involving aself-imposed hardship. Other property owners have submitted to the burden of complying with ordinance requirements. Should we expect less of someone who violates the requirement, even through the neglect or inadvertence of themselves or someone they have hired? The adverse impact of the violation is the same, whether the mistake was made in good faith or in bad faith. The Connecticut Supreme Court in Highland Park. Inc. v. Zoning Board of Appeals of the Town of Newhaven, 229 A.2d 356 (CN 1967) rejected a variance where the hardship was due to either the property owner's own error or an error committed by someone employed by the owner. There, a corporate developer had constructed a house encroaching five feet into a ten foot side yard setback. The variance was sought on the basis that the location of the house was due to an error made either by the surveyor or by the foundation contractor employed by the corporation. They also claimed that the owner of the adjoining lot had demanded an exorbitant price for a strip of land necessary to relocate the dividing line between the lots and that the house could not be remodeled or moved and would have to be demolished unless the variance was granted. The variance request was denied by the board and the denial was appealed. The Connecticut Supreme Court disposed of the appeal in one paragraph. In denying the appeal (upholding the denial of the variance), the Court noted that the board had no power to grant a variance when the claimed hardship arose out of the property owner's own actions. Owners will often seek to put as much distance between themselves and their contractor as possible and then to cast the blame upon the contractor. However, as noted in the cases above, the owner-builder is responsible for the acts of those whom he or she hires. Even where there is more distance between the applicant for the variance and the person who committed the error, the courts have refused to give such distance any weight. Pollard v. Zoning Bd. of AQneals of Norwalk, 186 Conn. 32, 438 A.2d 1186 (1982) is one such case. There the executrix of an estate hired a surveyor to divide a parcel into two parcels. Through a surveying error one lot was 5.6 feet short of the minimum 50 foot frontage required, although the plat produced by the surveyor showed the lot as meeting the minimum 50 foot requirement. The beneficiaries of the estate who had nothing to do with subdividing the property were denied a variance to the minimum frontage requirement. Even though the surveyor was hired by the executrix, and not the beneficiaries of the estate, the court ruled that the beneficiaries were to benefit from the subdivision of the lot and were suffering from aself-imposed hardship. The -8- court overturned the grant of the variance, recognizing that the lot could not be lawfully used ~ under the zoning ordinance. The court went on to note that the beneficiaries were not without remedy and, in fact, they were already involved in litigation with the errant surveyor. The court also addressed the public policy problem of letting the variance stand. The beneficiaries had claimed that the denial of a variance would have been unfair because they had no knowledge of the errors committed by the surveyor and because the hardship arose out of circumstances that were totally beyond their control. The court believed that in balancing the rights of the beneficiaries and those of the executrix who hired the surveyor against those of the municipality whose regulations had been violated the burden had to fall on the beneficiaries and the executrix. The court concluded: The hardship, in this case, arose as the result of voluntary acts on behalf of one whom the variance would benefit and, therefore, was self-created. Polland, supra at 1191. Where there is even more distance between the current owner and the person who actually created the nonconformity the courts have refused relief. Where the prior owner of a large parcel consisting of several undersized lots sold the undersized lots, the New Jersey court refused to reverse the denial of a variance to a subsequent owner stating that, ...the claimed hardship was self-created because the plaintiff's predecessor in title had created the nonconformity by selling the undersized lot ... (emphasis added) Barnes v. Wyckoff Tp. Bd. of Adjustment, 174 NJ Super. 301, 416 A.2d 431, 432 (1980). Persons are presumed to have knowledge of ordinance requirements. Country Estates, Inc. v. Schermerhorn, 380 N.Y.S.2d 325, 326 (N.Y.App.Div. 1976). Further, the owner's lack of knowledge of a zoning violation when purchasing the property is not relevant. Camaron Apartments, Inc. v. Zoning_Board of Adjustment of Philadelphia, 324 A.2d 805 (Pa.Commw. 1974). It will be very tempting for a board to respond to the plea that a variance is the applicant's only hope and that they have no responsibility for the situation in which they now fmd themselves. The case law clearly runs against such applicants and any hardship arising out of their contractor's error is aself-imposed hardship that is not relevant to the grant of a variance. In fact, as noted by several of the courts, boards are not authorized to grant variances based on self-imposed hardships. The Connecticut Supreme Court in Pollard, supra, summed it up quite well at page 1192 as follows: Personal hardships regardless of how compelling or how far beyond the control of the individual applicant do not provide sufficient grounds for the granting of a variance .... It is not the function or responsibility of the Board -9- of Appeals to seek ways to extricate [the applicant] from his self-created difficulties. (citations omitted) (emphasis added) Knowledge of Law. Guilt. Innocence. and Good Faith Reliance Are Not Relevant. As was noted above, the personal situation of the applicant is not relevant. For example, the applicant's health, age, wealth, family size or the number of cars or dogs in the household have no bearing on whether a variance applicant should be granted a dispensation to violate the law that his neighbor, who does not suffer from the same condition, cannot violate. The focus is on an inherent peculiarity of the roe that gives rise to an undue substantial hardship, not on the particular needs, desires or personal situation of the property owner. Although the old saw "ignorance of the law is no excuse" is familiar to everyone, the argument is nevertheless often raised that the applicant did not know of the restriction and their innocence of any knowledge of the law should be taken into account in granting the variance. In other words, those who do not know of the law need not obey it while those who are aware of the law will be bound by it. As noted in the discussion above, this argument is generally rejected by courts. The court in Denton v. Zoning Board of Review of Citv of Warwick, 133 A.2d 718 (R.I. 1957) disposed of this assertion in the variance context when it stated that the hardship flowing from a literal application of a zoning ordinance is in no way dependent upon the applicant's knowledge or lack of knowledge of the existence of land use restrictions affecting his land. Further, as noted above, each person is presumed to know the law, Country Estates, supra and each purchaser is responsible for determining whether the property violates the law, Camaron Apartments, su ra. Amore troublesome situation arises when the applicant for a variance asserts an equitable plea. The plea asserted in a variance case is sometimes referred to as good faith or detrimental reliance and may also involve a plea of "clean hands. " The situation in which such an argument might arise would be as follows. The property owner applies for a building permit. He shows on his permit application an accurate drawing of a plot of his property and the location of the proposed structure. The application is reviewed by the building official and the zoning administrator. The latter notes on the application that all zoning requirements are met. After the house is built in accordance with the plot plan submitted, it is discovered that a setback violation exists and should have been evident from the plot plan. In such a case, the property owner will claim that he relied to his detriment on the issuance of the building permit with the specific notation relating to zoning compliance. He will claim that his hands are clean; that is, he did not mislead anyone, that he relied to his detriment on the permit and the municipality should be equitably estopped from denying a variance. In a few such situations, courts might prohibit a municipality from enforcing the ordinance against the owner. However, there is a vast difference between the ability of the municipality to enforce an ordinance and whether a property meets the requirements for a variance. Detrimental reliance is not one of the standards set out for the grant of a variance. A property is either qualified or not qualified for the variance depending on its peculiarity and the hardship that would be involved in making a reasonable use of the property. Equitable estoppel is a defense to be asserted by the property -10- owner when the municipality attempts to enforce the ordinance. Fields v. Kodiak City Council, ~ 628 P.2d 927 (Alaska 1981). In the case of a setback violation, that might be the demand that the owner move the structure or otherwise bring it into compliance. It could also involve, upon the owner's, refusal, a subsequent civil or criminal action against the owner. However, it is up to the courts, and not boards of adjustment, to decide matters of equity such as detrimental reliance. The board decides only whether or not a variance should be granted based on the standards set out in the ordinance. If a variance is granted, no enforcement action could be taken. If a variance is not granted because the property does not qualify under the ordinance then the municipality is in a position to consider what enforcement action it might take. Only if the municipality attempts to enforce the ordinance would the owner's equitable defenses come into play; and then, it would be up to the enforcing agency, or the courts to deal with the equitable defense. Do not get the idea that detrimental reliance will usually work for a property owner. For example, such a defense can be defeated if the property owner could have discovered the potential violation by conducting his or her own investigation of the regulations. In New York, the owner of a 31 story building was required to remove the top 12 stores that exceeded the 19 story limit for the zoning district, even though the city had issued a building permit fora 31 story building and the building had been constructed before the error was discovered, Parkview Associates v. City of New York, 525 N.Y.S.2D 1976, 519 N.E.2d 1372 (1988). The building owners were unable to obtain a variance and were not able to assert detrimental reliance as a defense to enforcement. 1 Alaska has had one case before its supreme court where an equitable defense was asserted as a basis for the grant of a variance. This assertion was rejected by our court. In Fields, supra, our court stated: In the zoning context, estoppel is a defensive claim raised to prevent enforcement of a zoning ordinance.... But "[i]t is not the function of ... [the board of adjustment] to consider matters such as estoppel ... in determining whether a variance should be granted. " Nor is the board to decide equitable questions of "clean hands." Rather, the board's power is restricted to that provided by zoning ordinance and its enabling legislation. Thus the Kodiak board of adjustment's function was to determine whether the requirements for a variance were met and, if so, to grant the variance. (citations omitted) As tempting as it might be to take equitable considerations into account, they are not included in the statute nor local ordinances as a basis for granting a variance and are thus not relevant to a variance proceeding. If such considerations are relevant, they will be taken into account outside the variance proceeding. However, one home rule city in Alaska has what it calls an "exception", it grants in the same manner as it grants variances. As long as the structure was erected in good faith and the -11- violation is from an innocent error that does not violate the spirit or intent of the zoning code, *~ the exception may be granted if not contrary to (but not necessarily consistent with) the comprehensive plan and would not be detrimental to the public health, safety and welfare, and would not result in material damage to other properties. The humanitarian policy that drives this exception approach is clearly at odds with the policy and law as it has developed relating to variances. This approach is not available to general law municipalities nor to any city (home rule or general law) within a borough. Platting Variances. Many municipalities have variance procedures for obtaining variances from the requirements of the platting regulations. The standards for granting platting variances are often more relaxed and more general. Because the variance restrictions found in Title 29 apply only to land use regulations, and not to platting regulations, general law municipalities have more leeway in dealing with variances from platting regulations; however, there does not appear to be any basis in policy for a more relaxed standard for granting platting variances than for land use variances. Findings. Turning now from some of the substantive elements involved in a variance to the procedural aspects it should be noticed first of all that the variance procedure is handled in two distinct phases. The first is a determination of whether the property qualifies for a variance; the second is a determination of what degree of variance from the regulations should be granted. The distinction between whether and what is often blurred or completely ignored in .variance proceedings. Courts, on the other hand, clearly recognize the need for the variance applicant to meet the threshold requirement by showing both peculiarity and hardship. These showings are a condition precedent to the grant of a variance. Nash v. Zoning Board of Appeals of East Hartford, 345 A.2d 35 (Conn. 1973); Ivanovich, supra; BOA of Newcastle County, supra. Not only must the necessary showing be made before the board may even consider granting a variance, but the failure to show any one of the requirements is fatal to the applicant. Blackman, supra; Kunz v. Waterman, 283 N.E.2d 371 (Ind., 1972). Note also that many ordinances require the board to fmd all of several elements set out in the ordinance. After all the elements have been shown, then the board may decide how much of a variance it will grant. Within many ordinances, however, the elements that go to the extent and effect of the variance are often mingled with the elements that go to hardship and peculiarity. The Kodiak ordinance is this way. It specifically requires a fording that all requirements are met and it mingles the peculiarity/hardship requirements with the standards that limit the extent of the variance granted. See Attachment H. Not only must all elements be shown to have been met before the board may grant a variance, but the board must make findings setting out the basis for the showing that all elements 1 -12- have been met. Broadway, Laguna, supra. In addition, there must be evidence supporting the i fmdings of the board. Heath et al. v. Mayor and Ciry Council of Baltimore, 49 A.2d 799 (Md. 1946); Broadwa~guna, supra. In the Heath case, the Maryland Court of Appeals noted at 804 that the board had ...the duty of deciding in accordance with the evidence, and it is arbitrary and unlawful to make an essential finding without supporting evidence. While it does not appear that the Alaska Supreme Court has gone quite this far, it has recognized that fmdings must be made. Findings serve at least two important functions. First, fmdings help the decision making body to focus on the statutory or ordinance elements that must be shown in the particular case before the body. Second, it gives the parties a clear statement of the board's decision so that they may analyze whether or not an appeal is appropriate. In addition, it eliminates the need for an appellate body to speculate as to the basis for a decision that may be appealed to such appellate body. Mobile Oil Corp. v. Local Boundary Commission, 518 P.2d 92 (Alaska, 1974). See also Kunz, supra. In Fields, supra, the Alaska Supreme Court had before it the appeal of a variance action. A major issue in that case was the existence and adequacy of the fmdings below. The Supreme Court discussion on this matter helps illuminate both the need for fmdings and the detail of such findings. The court noted: The statute requires an aggrieved parry seeking review to specify the grounds for the appeal. This requirement is also found in the governing local ordinance. A board's failure to provide fmdings, that is, to clearly articulate the basis of its decision, precludes an applicant from making the required specification and thus can deny meaningful judicial review. We believe that implicit in AS 29.33.130(b) is the requirement that the agency rendering the challenged decision set forth fmdings to bridge the analytical gap between the raw evidence and the ultimate decision or order. Only by focusing on the relationship between evidence and findings, and between fmdings and ultimate action, can we determine whether the board's action is supported by substantial evidence. Thus we hold that regardless of whether a local ordinance requires findings, a board of adjustment ruling on a variance request must render fmdings "sufficient both to enable the parties to determine whether and on what basis they should seek review and, in event of review, to apprise a reviewing court of the basis for the board's action. " ... . Our ruling fords support in persuasive policy considerations and in other jurisdictions. As the court in Topanga Association noted, a fmdings requirement forces the administrative body to draw legally relevant subconclusions that are supportive of its ultimate decision. This facilitates orderly analysis on the .part of the board and "minimize[s] the likelihood that the agency will randomly leap from evidence to conclusions. " -13- ~ More importantly, findings enable the reviewing court to meaningfully examine the agency's mode of analysis. Absent findings, a court is forced into "unguided and resource-consuming explorations, " groping through the record to determine "whether some combination of credible evidentiary items which supported some line of factual and legal conclusions supported the ultimate order and decision" of the board. Finally, as previously noted, findings enable the parties to determine whether and on what basis they should seek review. (citations omitted) Fields, supra, (citations omitted) (emphasis in original). It stands to reason that if all elements required by the ordinance must be shown and that the board must render a decision containing its findings, the board must, as a minimum, address each of the minimum requirements set out in the ordinance and make findings as to each, if the board grants a variance. Of course, if it denies a variance, it could do so upon the mere finding that one element had not been met. h:\gls\seminars\gendis.3 -14- ATTACHMENT A (ALASKA STATUTES) § 29.40.040 ALASKA STATUTES § 29.40.040 Sec. 29.40.040. Land use regulation. (a) In accordance with a comprehensive plan adopted under AS 29.40.030 and in order to im- plement the plan, the assembly by ordinance shall adopt or amend provisions governing the use and occupancy of land that may include, but are not limited to, (1) zoning regulations restricting the use of land and improvements by geographic districts; (2) land use permit requirements designed to encourage or discour- age specified uses and construction of specified structures, or to mini- mize unfavorable e~'ects of uses and the construction of structur •; (3) measures to further the goals and objectives of the comprehen- sive plan. (b) A variance from a land use regulation adopted under this sec- tion may not be granted if (1) special conditions that require the variance are caused by the person seeking the variance; (2) the variance will permit a land use in a district in which that use is prohibited; or (3) the variance is sought solely to relieve pecuniary hazdship or inconvenience. (~ 11 ch ?4 SLA 1985) ,.~.~_ 29.4Q.Q5Q ML'I~ICIPAL GOVERI`ti~E:~T ~ 29.4~,Q%Q Sec. 29.40.050. Appeals from administrati~•e decisions. (a) By ordinance the assembly shall provide for an appeal from an adminis- trative decision of a municipal employee, board, or commission made in the enforcement, administration, or application of a land use regu- lation adopted under this chapter. The assembly may provide for an appeal to a court, hearing of~'icer, board of adjustment, or other body. The assembly shall provide for an appeal from a decision on a request for a variance from the terms of a land use regulation when literal enforcement would deprive a property owner of rights commonly en- joyed by other properties in the district. (b) By ordinance the assembly may provide for appointment of a hearing officer, or for the composition, appointment, and terms of office of a board of adjustment or other body established to hear ap- peals from administrative actions. The assembly may define proper parties and prescribe evidentiary rules, standards of review, and rem- edies available to the hearing officer, board of adjustment, or other body. ($ 11 ch 74 SLA 1985) ~z~ Suggested by: Council CITY OF KENAI RESOLUTION NO. 96-86 A RESOLUTION OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, ADOPTING THE CITY OF KENAI, ALASKA 1997-1998 CAPITAL IMPROVEMENT PROJECT (CIP) PRIORITY LIST FOR REQUEST FOR STATE GRANTS. WHEREAS, input for the 1997-1998 CIP list from the Kenai City Council, City Administration, and citizens of the City of Kenai has resulted in the attached prioritized CIP projects being requested of the State of Alaska; and, WHEREAS, it is the intent of the Council that paving, water, and sewer projects in residential areas will be partially funded by forming assessment districts in order to make any available State funding go farther toward completion of the priority list; and, WHEREAS, public meetings were held concerning the 1997-1998 Capital Improvement List; and, WHEREAS, the Council of the City of Kenai, after receiving and analyzing the input from all sources and after discussion and deliberation, has decided to adopt the attached 1997-1998 CIP list; and, WHEREAS, the Mayor and the Council of the City of Kenai pledge their affirmative vote for the maintenance and operational costs of all the City projects listed. NOW, THEREFORE, BE IT RESOLVED THAT THE COUNCIL OF THE CITY OF KENAI, ALASKA adopt the attached list entitled "CITY OF KENAI, REQUEST FOR STATE GRANTS, 1997-1998 CAPITAL IMPROVEMENT PROJECTS"; AND, BE IT FURTHER RESOLVED that prior to initiating paving, water and sewer projects in residential areas through the use of State funds, the City shall hold public hearings toward the formation of special assessment districts to partially fund projects listed on the Capital Improvements Project priority list. PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this 13th day of November, 1996. ATTEST: John J. Williams, Mayor Carol L. City Clerk CITY OF KENAI REQUEST FOR STATE GRANTS 1997-98 CAPITAL IMPROVEMENT PROJECTS 1. Water Quality/Quantity Development Program $ 960,000 2. Community Road Development 2,400,000 3. Sewer System Improvements 5,000,000 4. Challenger Center Project 2,000,000 5. ADA Compliance to Public Facilities 1,000,000 6. Library Addition 1,000,000 7. Marine Industrial Development 1,000,000 TOTAL REQUEST $13,360,000 1~ Suggestec, by: Planning and Zoning CITY OF KENAI ORDINANCE NO. 1723-96 AN ORDINANCE OF THE KENAI CITY COUNCIL APPROVING AND ADOPTING THE REVISED COMPREHENSIVE PLAN FOR THE CITY OF KENAI AND RECOMMENDING ADOPTION BY THE KENAI PENINSULA BOROUGH. WHEREAS, the Kenai Peninsula Borough as a second class borough shall provide for planning on an area wide basis in accordance with AS 29.40; and, WHEREAS, the City of Kenai, as a home-rule city situated within a second class borough, has reviewed their Comprehensive Plan; and, WHEREAS, Planning Staff and the Kenai Planning and Zoning Commission held numerous public meetings and received numerous comments regarding the revision of the Comprehensive Plan; and, WHEREAS, the Planning and Zoning Commission held a formal public hearing on the Plan on March 13, 1996 and provided recommendations to the Kenai City Council; and, WHEREAS, the Kenai City Council on September 16, 1996, in a joint work session with the Kenai Planning and Zoning Commission reviewed the draft Comprehensive Plan; and, WHEREAS, the Kenai City Council on November 6, 1996, reviewed the final draft of the Kenai Comprehensive Plan and recommended approval of the Plan to the Kenai Peninsula Borough. NOW, THEREFORE, BE 1T RESOLVED by the City Council of the City of Kenai that: Section 1 -The Final Draft of the Kenai Comprehensive Plan prepared by the City of Kenai is hereby approved and adopted as the Comprehensive Plan of the City of Kenai. Section 2 -This Plan is hereby recommended to the Kenai Peninsula Borough for adoption as the official Borough Comprehensive Plan within the City of Kenai planning area of the Borough. City of Kenai Ordinance No. 1723-96 Page 1 of 2 PASSED BY THE COUNCIL OF THE CITY OF KENAI, this sixth day of November, 1996. ATTEST: Carol L. Freas, City Clerk n J. Williams, Mayor City of Kenai Ordinance No. 1723-96 Page 2 of 2 Introduced: October 16, 1996 Adopted: November 6, 1996 Effective Date: November 6, 1996