HomeMy WebLinkAboutOrdinance No. 2251-2007Suggested by: Planning and Zoning
CITY OF KENAI
ORDINANCE NO. 2251-2007
AN ORDINANCE OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, AMENDING
THE OFFICIAL KENAI ZONING MAP BY REZONING LOT 1 AND LOT 2A OF SCHURR
SUBDIVISION FROM GENERAL COMMERCIAL (CG) TO LIMITED COMMERCIAL (LC).
WHEREAS, the owner of this property initiated a request to rezone the property; and,
WHEREAS, the property is currently zoned General Commercial (CG); and,
WHEREAS, the owner of the property would like to build a residence on the property;
anal,
WHEREAS, the General Commercial (CG) zone limits residential use to strictly a
secondary use; and.,
WHEREAS, the Limited Commercial (LC) zone provides for both residential and
commercial uses; and,
WHEREAS, the Comprehensive Plan identifies the parcels as Neighborhood
Residential; and,
WHEREAS, the parcel is surrounded by parcels zoned residential. with the exception of
one parcel; and,
WHEREAS, the Limited Commercial zone allows uses that are more compatible with
the residential properties adjoining this parcel; and,
WHEREAS, on August 22, 2007, the Kenai Planning and. Zoning Commission voted
unanimously to rezone the parcels.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF KENAI,
ALASKA that the official Kenai Zoning Map is amended by rezoning Lot 1 and Lot 2A of
Schurr Subdivision from General Commercial (CG) to Limited Commercial (LC) as
shown on Attachment A.
PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this 19th day of
September, 2007. ~•~-~- ~ ~, )
PAT PORTER, MAYOR
ATT ~~/
~
Carol L.
Freas, City Clerk
Introduced: September S, 2007
Adopted: September 19, 2007
Effective October 19, 2007
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KENA~ SKA
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210 Fidalgo Avenue, Kenai, Alaska 99611-7794 ail a,
Telephone: 907-283-7535 /FAX: 907-283-3014 ~~ II
1992
MEMO:
TO: Rick Koch, City Manager ~ ~'Jr
FROM: Marilyn Kebschull, Planning Administrator 1'
DATE: September 10, 2007
SUBJECT: Ordinance No. 2251-2007 -Schurr Subdivision Proposed Rezone
The Planning and Zoning Commission voted unanimously to recommend the
Council rezone Schurr Subdivision from General Commercial to Limited
Commercial. The proposed rezone is for Lot 1 and Lot 2A of Schurr Subdivision.
The area of the rezone is 1.29 acres. This rezone was at the request of Charles
and Patricia See who own the property. The application, as submitted, met the
criteria of KMC 14.20.270 (2), "...contains a minimum of one (1) acre..." The
applicants are requesting the rezone to allow them to build a new residence on
their property while maintaining the commercial uses allowed in the Limited
Commercial zone. In the General Commercial zone, residential uses are
secondary and have not been allowed as a separate structure from a commercia
use.
The lots in question front the Kenai Spur Highway and Aliak Drive. With the
exception of one adjoining lot (Redoubt Plumbing and Heating -Yragui) all lots in
the vicinity are zoned residential. According to City records, the Yragui lot was
zoned General Commercial in 1984 after the City assumed zoning powers to
eliminate anon-conforming commercial use. Schurr Subdivision was rezoned
from Suburban Residential to General Commercial at the request of Mr. And Mrs.
See in 1993. At that time, the Sees wanted to operate a commercial fish net
mending business from the property. During the discussion on the rezone in
1993, the Commission recommended the Sees consider a Conditional Use
Permit but Mr. And Mrs. See wanted a more permanent status. Minutes from the
August 11, 1993 Planning and Zoning Commission note Mr. See requested the
Ordinance No. 2251-2007 Page 2
September 10, 2007
rezoning stating, "...this is his home and since he plans to be there indefinitely he
would like the status to be more permanent than a conditional use permit." The
rezone was approved and the home on lot 2A became anon-conforming use.
The proposed rezone was discussed with Attorney Cary Graves. Attorney
Graves stated that under the Griswold decision (1996), if the rezone was
approved it could be considered spot zoning. The basic tenet from that decision
is that zoning of parcels less than three acres is almost always considered spot
zoning. Of note is that the combined acreage for the three parcels zoned
General Commercial in this area is Tess than 3 acres (2.87 acres).
In the Griswold decision, the Court commented that spot zoning is not dependent
strictly on the acreage involved. Among other issues the Court reviewed in the
decision was whether or not the rezone was consistent with the comprehensive
plan and with surrounding uses. The City of Kenai's Comprehensive Plan
identifies these parcels as Neighborhood Residential. The Neighborhood
Residential is specifically identified for single-family and multi-family residential
areas. It is my opinion that the proposed rezone from General Commercial to
Limited Commercial appears more compatible with the surrounding residential
uses and the Comprehensive Plan. The Commission agreed and recognized
that commercial developments as allowed in the General Commercial zone could
adversely affect the adjoining residential neighborhoods.
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KEN U SKA
°°l/iffa~e wit~r a Past, Gi wit~r a Future °`
210 Fidalgo Avenue, Kenai, Alaska 99611-7794
Telephone: (907) 283-7535 /Fax: (907) 283-3014
wvdw.ci.kenai.ak.us
MEMORANDUM
TO: .Mayor Porter and the Kenai City Council
FROM: ~~~ Cary R. Graves, City Attorney
DATE: September 12, 2007
RE: Spot Zoning
Boring the meeting of September 5, 2007, Councilor Molloy requested staff memoranda on
Ordinance 2251-2007, rezoning Lot 1 and 2A of Schorr Subdivision from General Commercial
to Limited Commercial.
This metnorandum is intended to outline the doctrine of "spot zoning'' under Alaska law. In
general, spot zoning is described as a zoning decision that affects a small parcel of land and
which is found to be an arbitrary exercise of legislative zoning authority. The Alaska Supreme
Court described it as "singling out of one lot or a small area for different treatment from that
accorded to similar surrounding land indistinguishable from it in character, for the benefit of the
owner." 2 The court held that spot zoning is illegal in Alaska. In Griswold, the court set out a
three-part test to analyze whether a zoning decision constitutes spot zoning.
The first part is the consistency of the rezone to the comprehensive plan. The City's
comprehensive plan calls for the area to be Neighborhood Residential.3 The plan defines
Neighborhood Residential as consisting of "single-farnily and multi-family residential areas.4 In
this case the rezone would change the property from General Commercial (CG) to Limited
Commercial (LC). One, two and three family dwellings are allowed only as secondary uses in
the CG Zone, but are allowed a principal permitted uses in the LC Zones Four or more family
dwellings are a secondary use in The CG Zone and a conditional use in the LC Zone.
The second part is the benefits and detriments to the property owner, adjoining property owners
and the community. The most hnportant issue for this testis whether the zoning change provides
~ McQuillen Mon Corp §25.83 (3 `a Ed).
z Griswold v. City of Homer, 925 P.2d 1015, 1021 (Alaska 1996).
' City of Kenai Comprehensive Plan (2003) pp27-28.
Id at 29.
s KMC 14.22.010
~ /d.
a benefit to the public rather than primarily benefiting the private landowner . As long as the
rezone benefits the public, it is not considered spot zoning just because it was requested by the
private property owner or that it also benefits the private property owner in addition to the
general publia~ Of the three parts, this is probably the most important one.R
The third part of the test is the size of the property to be rezoned. The size of the property in this
case is 1.29 acres. The Alaska Supreme Court has noted that rezoning of parcels less than three
acres in size is "nearly always" considered spot zoning while those over thirteen acres are almost
always determined not to be spot zoning.9 However, the court stated that rezoning of parcels of
under three acres should not automatically be considered spot zoning.10 For example, if the
request in this case was to change the zoning from General Commercial to Suburban Residentiai-
the same as a large area adjoining it-the court would probably not consider it spot zoning based
on its size. In this case the rezoning would create a 1.29-acre area zoned Limited Commercial
surrounded by a large Suburban Residential area and adjoining a small 1.58 acre General
Commercial parcel
In my view, the three factors should be analyzed as follows. First, the proposed rezone to
Limited Commercial does not bring the two lots ih complete compliance with the comprehensive
plan. However, the proposed change does bring it more into compliance than the current zoning
(General Commercial). Second, is bringing the zoning into closer compliance with the
comprehensive plan the primary rationale for the zoning change or is it to benefit the landowner?
In other words is this change designed to benefit the public as a whole or the private landowner?
Third, is there a sufficient benefit to the public as a whole to overcome the presumption that
rezoning property under three acres is spot zoning?
Please let me know if you have any questions or would like further comments.
~ Griswold at 1.022.
" Id.
91d at 1024 (Citing 1 Rvbert M. Anderson, American Law of Zoning 3`a #5.15, at 378 (1986). The Griswold decision
came out in 1996, three years after the property in question was rezoned from Suburban Residential to General
Commercial.
10 Griswold at 1024-1025.
Attn: Kenai City councIl Members
c/o Carol Freas, City Clerk
Re: PZ07-46 (request to rezone General Commercial to Limited commercial}
Dear Council Members,
Patty and I can not attend your meeting; we're currently in Tucson for Patty's
ailing mom who is now in the hospital.
Our current house on the subject property was built in 1942 and has sufficed for
a summer home over the past 18 years while attending the U. of Washington and
teaching overseas, but, while still very livable, is not suitable for our fang term
living (understatement!). We've contracted with an architect to design a quality
1800 sq ft single-level home to be built, hopefully, on this property at Aliak and
Lynwood to be our retirement home.
Since originally purchasing the current home and property, which the Kenai City
Fire Dept. offered to burn down for practice during our first year of ownership, we
have considerably upgraded the structure and the property to the betterment of
the community. Our new home will certainly do the same and most likely raise
property value in our local area. At the same time, the properly will remain very
available for light commercial development in the future, as we plan to place our
new home closer to Aliak than the highway due to traffic noise. The property
immediately east of where we plan to build is occupied by two new houses that
directly abut our property; in fact, one of the homes directly faces us. Property
across Aliak is also, of course all homes that face us.
When we originally purchase this property, we weren't planning for retirement. It
was zoned residential at that time and we requested that it be made commercial
because Doyl's Fuel Service abutted it along the Spur (2-lanes at that time); we
figured no one would ever want to build next to a fuel service company, and I
don't think limited commercial was available at that time. Naw a much more
residential-friendly business is located where Doyl's used to be.
Thank you for your consideration. We apologize for not being able to attend this
meeting.
Sincerely,
Patty and Charlie See