HOMER CITY COUNCIL/COMMITTEE OF THE WHOLE

Session 05-21, a Special Meeting of the Homer City Council, sitting as a Board of Adjustment, was called to order at 5:30 p.m. by Mayor James C. Hornaday at the Homer City Hall Council Chambers located at 491 E Pioneer Avenue, Homer, Alaska, and opened with the Pledge of Allegiance.

PRESENT: COUNCILMEMBERS: HEIMBUCH, McLAY, NOVAK, STARK, YOURKOWSKI.

STAFF: CITY ATTORNEY TANS

CITY CLERK CALHOUN

CITY MANAGER WREDE

CITY PLANNER McKIBBEN

ABSENT: COUNCILMEMBER: WYTHE (excused)

Note: The Mayor is the Chair of the Board of Adjustment and the Councilmembers are the Boardmembers.

The City Council met as a Committee of the Whole from 4:04 to 4:13 p.m. regarding Regular Agenda Items.

APPEALS - BOARD OF ADJUSTMENT HEARING

A. Eldon and Bernadette Adair appeal to the Board of Adjustment Regarding Action item #6 for Conditional Use Permit 05-09 issued to Eldon and Bernadette Adair

B. Kevin and Donna Maltz, David Scheer, Michael and Nadine Rearden and Ron Nieman appeal to the Board of Adjustment Regarding Conditional Use Permit 05-09 issued to Eldon and Bernadette Adair

Conditional Use Permit 05-09 - A Fisherman's Resort, Planned Unit Development, As Permitted by Homer City Code 21.49.030(f) At 1302 Ocean Drive, Lots 29, 30, 56 and 57, Bayview Subdivision (Adair Replat in Progress)

The first appeal is filed by Eldon and Bernadette Adair.

The second appeal is filed by Kevin and Donna Maltz, David Scheer, Michael and Nadine Rearden and Ron Neiman.

The Mayor suggested that both appeals be considered at the same time and inquired if any of the parties objected and if the board wished to proceed in that manner?

Mr. Adair objected to hearing both appeals at the same time in that these are two separate issues.

Mayor Hornaday, with Board concurrence, stated that these would be considered at the same time.

The parties came forward, took a seat and identified themselves for the record.

Eldon Adair and Jeff Mills, Civil Engineer.

Donna and Kevin Maltz, and David Scheer.

As a preliminary matter the Mayor announced that he has a granddaughter that works for Donna and Kevin Maltz at the Sourdough Express. He and Mr. Maltz stated that they have not discussed this matter with her.

There were no comments.

The Mayor noted that the first appeal record consists of 122 pages prepared by the City Clerk's Office and that the second appeal record consists of 132 pages prepared by the City Clerk's Office.

Mayor Hornaday voiced his belief that oral arguments would be beneficial and the Board concurred. 15 minutes were granted to each side. Mr. Adair was instructed to consider setting aside a portion of his 15 minutes for rebuttal.

Eldon Adair went first and reserved 2.5 minutes for rebuttal.

Donna and Kevin Maltz and David Scheer went second. There was a letter from the Michale Rearden.

Eldon Adair testified on his appeal of the ruling, condition #6⁽¹⁾, and his belief that he is being unjustly singled out and that no other property owners in this zoning district have ever been subject to a ruling of this type. He stated that it is on record, at the Planning Commission level, that they complied with every Code in the City to design, build and plan this project and that they worked with staff. He relayed that the staff reports have recommended this project as per the Code. He told the Board that the eight foot buffer causes a hardship in the fact that RV spaces have to be shortened, the parking requirements would be affected, and that by taking the extra land this shortens the backup area for the cars to make those parking stalls illegal. He voiced his opinion that there are other ways this could have been handled such as plants in the 3 foot buffer required by the City and that they would have been glad to do that, adding that planting is still needed. He suggested that both parties do replanting. He addressed Mr. Scheer's written comments and that he believes that Mr. Scheer failed to specify the violation of a specific code in his appeal and in how relief can be made. He stated that Mr. Scheer also filed a portion on July 11th, past the 30 days and that it was not identified as a brief, but as a part of the appeal and should not be allowed. Mr. Adair stated that Mr. Scheer has privacy, has no windows on the back of his structures and has taken his trees down and that he built his building 35 inches from the property line and not five feet as required. Mr. Adair stated that the bakery building is four foot and eight inches and not five feet from the property line and that there are trees on his side that are outside of the eight foot buffer. He reported that he was cited by staff and that he had to remove dirt from the roots back nine feet. He stated that the nine feet and eight feet is 17 feet that he cannot touch and believes that this is unreasonable and that there is nothing in the Code that says that "they" have the authority to be able to do this. He cited HCC 21.61.060 that the Commission has the ability to require greater set backs, however, this pertains to a residential area not a business area. He addressed the comment that the drawings had changed and that the set back of five feet and buffer of 3 feet are clearly shown on all the drawings submitted. Mr. Adair stated that the comment that the size of the project had increased is incorrect. Mr. Adair noted that the Planning Commission had said that he did not have the proper 27 foot backup area on the Ocean Drive side and that they addressed this. He stated that in HCC 21.60.020, an eight foot buffer is not necessary for uses consistent with purpose of HCC 21.28 - 21.70, when the purpose of the zoning district value of adjacent property will not be negatively affected. He asked that the eight foot buffer be removed.

Mr. Adair said that Mr. Mills would show the Board some photos.

City Attorney Tans noted that additional photos would be additional evidence and is not to be considered unless remanded back to the Planning Commission to consider.

Mayor Hornaday ruled that, since these were not in the record and there are not copies for everyone, these may not be shown. He stated that he would make the same ruling for the other side should a similar situation occur.

Mr. Adair stated that they met all the Codes, staff said they met all the Codes and that he would like to live by the Code and be treated the same as everybody else in this zoning district.

Upon inquiry the City Clerk advised that Mr. Adair has two and one half minutes left.

David Scheer commented about the five foot set back for his building and the Sourdough building and that there is a controversy over the position of the property marker. He relayed survey information and that the surveyors of the different entities are trying to work this out. He reported that he never removed any trees for his development and there was some fill placed in 1982, when there was a trailer on the lot and that he purchased the lot last year. He stated that he did cut down four trees that were well within his property, confirmed that the buildings have no windows and there is a five foot set back and that the trees are really key to the buffer between the two lots. He commented on Mr. Adair's comments about being singled out, that there are new Ordinances and if this is the first time this new set back is being applied that is just the progress of Homer. He stated that decisions such as this are well within the authority of the Planning Commission, the CUP (Conditional Use Permit) process is there to allow projects outside the Code requirements, as Mr. Adair's project, and also allows the Planning Commission more leeway to require conditions to help these types of projects to conform to existing uses in the area. He commented on the June 1st letter from the City Attorney that also supports the additional requirements by the Planning Commission. He stated the reasons for the buffer as stated in HCC 21.49.060. He told the Board that his site relies on subsurface drainage and existence of trees. He noted that buffers divide between very different uses, HCC 21.61.070, that the Commission may require additional buffers such as increasing the set back of structures and screening by fences or plantings, and that this same line of reasoning is within HCC 21.60 060(f), commercial PUDs. He cited a specific requirement in HCC 21.49.060(a)(1). He commented on the concerns about a huge financial impact, the drawings in the record, and that the project can go forward with the plans submitted with the eight foot set back.

Kevin Maltz, stated that he and Donna have had Sourdough Express for 23 years and that within that eight foot buffer there are four healthy, large, still growing trees. He emphasized the importance of the buffer for his business, the children's play area and for the aesthetics of the business. He noted that his west windows face Mr. Adairs site, where cabins are currently planned. He stated that the original plan shows smaller buildings over 40 feet from the lot line. He voiced concerns about the drainage on the lot. He urged the Council to allow the sixth condition to remain in place for viewing and aesthetics, adding that green belts are good and that the trees are healthy and growing and that he would like to see that remain.

Donna Maltz commented that Mr. Adair is using his land in good faith and in a neighborly manner by appreciating, respecting and honoring that they have been in their building for 23 years; the ambiance and the importance of the aesthetics around that building; and that they have spent thousands of dollars to keep those trees there. She stated that it means a lot to their business and to their customers.

David Scheer commented on Mr. Reardon's letter.

Mayor Hornaday advised that Mr. Reardon's letter has been submitted.

David Scheer stated that he has an annotated version of what he submitted earlier, with all the Code references. He stated that their main problems are: 1) that the parking was grossly miscalculated, that nine more spaces are needed, 2) the plan provided to the neighbors was completely different than what was approved in the CUP and in the Zoning Permit, 2) part of the process is for the neighboring community members to testify and that they have not gotten to do so since the project has gotten far bigger, 3) the Code requires that an RV park be at least 40,000 square feet and also specifies permitted uses and accessory uses, very specific things. Not cabins, a big restaurant and processing area. 4) this plan is much more than an RV park, is about 25,000 square feet and much too small to meet the Code requirements. 5) there is not a place for RVs to park when checking in.

Donna Maltz interjected that the RVs will be staging on the highway or on Douglas Street. She noted that there is one large lodge taking up 2000 square feet with a height of 23 feet.

David Scheer noted that the building height had changed, these are right up against the set back rather than being on the other side of the lot.

Donna Maltz stated that they are not against planned development or prosperity. She stated that the initial plan changed, they trusted him and that it was their mistake to not come to the meetings. She stated that she is looking at the Code of Ethics. She stated that the Planning Commission is completely overwhelmed and that this slipped by without any of them really understanding what was going on. She stated that they just want to slow down the development a little, go back to the Planning Commission and have an opportunity to speak with Mr. Adair, civilly, and figure out how to make this work.

David Scheer asked for this to get remanded back to the Planning Commission, since the Commission has not had a chance to hear everything or make a finding on the actual plan and structures and that they just want the process to be proper.

Mr. Adair, in rebuttal, stated that the staff clearly went through all of this, prepared everything and made their recommendations to the Advisory Commission, who did a very good and thorough job and that everything was on the plans. The plans were not changed. He reiterated earlier comments. He stated that it is a fact that water drains from both of the properties onto his property and that nothing that he has done creates any kind of a blockage, because of or the lack of a buffer zone. He pointed out that theirs is the last lot to be developed on the north side of Ocean Drive and yet he is the one, the last lot, singled out to be different than everyone else, one of his main arguments. He stated that the tree roots are not at issue. He stated that he thinks the staff should defend their position and that the staff is being overridden with false statements. He told the Board that this whole project is a resort, not an RV park, that it has RV parking and other services and that staff did make a determination on the 40,000 square feet.

The Mayor announced that Deliberations would commence as time allows tonight and from time to time as necessary until completed and a written decision will be prepared and issued to the parties after deliberations are completed.

C. Frank Griswold an appeal to the Board of Adjustment Regarding Conditional Use Permit 05-10

Frank Griswold has appealed the Conditional Use Permit granted to Tom McGreenery:

Conditional Use Permit 05-10 - For a Reduction in the Setback From a Dedicated Right of Way as Permitted By HCC 21.48.040(B)(4) at 445 Grubstake Avenue, Lot 2 Block 11, Glacier View Subdivision.

The parties came forward, took a seat and identified themselves for the record.

Frank Griswold.

Tom McGreenery.

As a preliminary matter Mr. Griswold objected to the City Clerk rejecting his supplemental appeal and stated that this is not the Clerk's job and is the Board of Adjustment's job.

Mayor Hornaday ruled to uphold the ruling of the City Clerk.

Councilmember Yourkowski asked if the City Attorney had seen Mr. Griswold's response to the ruling of untimeliness.

City Attorney Tans affirmed that he has seen Mr. Griswold's letter. He noted that Mr. McGreenery did not have an opportunity to respond to these documents. He voiced disagreement with Mr. Griswold that the Clerk's rejection is an abuse of discretion, adding that he thinks that this is within the Clerk's power to reject these documents as untimely.

Mayor Hornaday, again, ruled to uphold the ruling of the City Clerk.

There were no objections from the Board.

Mayor Hornaday stated that the record on appeal consists of 46 pages prepared by the City Clerk's Office.

Mayor Hornaday voiced his belief that oral arguments would be beneficial and the Board concurred. Ten minutes was granted to include any time reserved for rebuttal.

There were no objections from the Board.

Frank. S. Griswold, first

Tom McGreenery, second.

Mr. Griswold objected to the 10 minutes.

The Mayor said that there were more people in the previous hearing and therefore the reason they received 15 minutes. He told Mr. Griswold that if he could make a showing that he needs additional time.. and was interrupted by Mr. Griswold.

Frank Griswold stated that such⁽²⁾ requirements have been in place in Homer since before 1982 and were applied uniformly until last year when HCC 21.48.040(b)(4) was surreptitiously incorporated into Ordinance 04-11(A). HCC 21.48.040(b)(4) does not apply to all of Homer, does not apply to most of the commercial districts and only applies to portions of the CBD. Grubstake Avenue is one of the areas where set back reductions are now allowed. He stated that the Planning Commission initiated 21.48.040(b)(4) shortly after a property owner on Pioneer Avenue was denied a variance for a set back reduction, that the Commission really only wanted to address Pioneer Avenue, that they were afraid that it might look like a spot zone; interjecting that it was; therefore, additional area was included to camouflage its true purpose and results in a residential neighborhood on the south side of Pioneer Avenue being entitled to reductions in set backs by CUP, while similar neighborhoods on the north side of Pioneer Avenue and elsewhere are not. Mr. Griswold referred to this as a hermaphrodite Conditional Use Permit (CUP), a cross between a variance and a contract rezone, asserting that neither is appropriate or legal in this case. He referred to a paper written by Lee Sharp in 2002 with an anonymous quote on the cover and relayed a statement from the document. He stated that granting a backdoor variance by CUP is arbitrary, capricious, discriminatory and counter to accepted zoning practices through out the nation. He pointed out that a set back does not count as a use and so cannot be granted by the CUP process, which is what variances are for. He noted that no real conditions were applied to CUP 05-10. He read finding (h) on page 4 of the Findings of Fact and Law and Decision on CUP 05-10. He stated that there was no set back reduction limited to the arctic entrance and walkway, no limits were imposed as to how far a structure could be built into the setbacks, adding that a liberal reading could allow a property owner to build lot line to line. He read into the record portions of findings A., B. and C. on pages 2 and 3 of the Findings of Fact and Law and Decision on CUP 05-10. Mr. Griswold said, putting aside the fact that vacant land cannot be considered a use, these findings clearly indicate that the use under consideration was the mobile home/single family residence and not the encroachment of the walkway and arctic entrance into the set back. He emphasized that the proposed encroachment is not a permitted use and the findings failed to address whether that encroachment satisfies the conditions prescribed by HCC 21.61.020. Mr. Griswold said that the Commission made a finding that the use was consistent with the purposes of Chapters 21.28 through 21.70 and the purpose of the zoning district, but that all that was really considered was HCC 21.48.040(b)(4). He queried: If maintaining setback requirements in all other districts is deemed consistent with Chapters 21.28 through 21.70, how could reducing them in portions of the CBD also be consistent with those purposes? If maintaining set back requirements on the Bypass and Lake Street is consistent with the purpose of the CBD, how could reducing setback requirements in Glacierview Subdivision also be consistent with the purpose of the CBD? He told the Board that HCC 21.48.040(b)(4) ended up being the sole basis for findings of CUP 05-10 consistent with the Zoning Code, ironic since it is in conflict and that building in a setback is an oxymoron. He read the definition of setback in HCC 21.32.450. He stated that CUP 05-10 is in conflict with Code provisions. He read HCC 21.60.220(c), noting that the proposed arctic entrance projects four feet into the required yard not counting its eves or architectural features. He read the set back requirement of 11.08.058(a)(3) and 11.08.110. He stated that when there is a conflict of Code the provisions which frustrate an underlying policy should be avoided, especially in cases like this where the policy is long standing and interwoven throughout the City Code. He pointed out that infilling set backs is not a stated goal of the Comprehensive Plan or of the Zoning Ordinance, adding that providing open spaces, yards, safe streets and fire protection are stated goals. He noted that there are solid reasons for implementing setback requirements, referring to HCC 21.28.020. He said that these requirements should not be whittled away to provide a special dispensation for a select group of property owners to violate laws that the rest of the community must obey, that the Board of Adjustment should not remand CUP 05-10 and should invalidate it outright, and the Council should repeal HCC 21.48.040(b)(4).

Clerk noted that Mr. Griswold has 2 and one half minutes left.

Tom McGreenery commented that Mr. Griswold has expressed a number of personal interpretations and opinions on various Codes, noting, however, that the original Conditional Use Permit was granted unanimously, satisfying all of the conditions it needed to satisfy. He noted that he had submitted his seven points of rebuttal to Mr. Griswold's original allegations of error. He stated that this is not an allowed use, under the Conditional Use Permit, to get into the set back in Glacierview Subdivision and this is what he requested and this is what was granted. He relayed being at a loss as to why this was appealed, since it seems pretty straight forward. He noted that there are no issues of safety or sight line, that this is a four foot porch with a five foot set of stairs and that there is no detraction of appearance. He stated that this was allowed and that he does not see that it should be reversed.

Mr. Griswold stated that this is not an allowed use, it is a conditional use and there are no guarantees that a conditional use will be approved, that it has to meet the official requirements, there are standards and that the application questions have to be answered to show that it meets and is consistent with the Code and compatible with the surrounding neighborhood. He wondered why all the neighbors protested, adding that this does not create a friendly environment. He asserted that this was just rubber stamped.

Mr. McGreenery stated that not all of the neighbors were in opposition.

Mr. Griswold, in rebuttal, stated that all of the neighbors that showed up at the meeting opposed it.

motion to go into exe session

YOURKOWSKI/McLAY - MOVED TO ADJOURN TO EXECUTIVE SESSION. (For deliberations of the Board of Adjustment)

There was no discussion.

VOTE: YES: NON OBJECTION. UNANIMOUS CONSENT.

Motion carried.

Mayor Hornaday recessed the Special Meeting to Executive Session at 6:29 pm., reconvening the Special meeting at 7:08 p.m. He then recessed the Special Meeting until after the Regular Meeting and called for a break prior to calling the regular meeting to order at 7:08 p.m.

Mayor Hornaday reconvened the Special Meeting, after the adjournment of the Regular Meeting, at 8:35 p.m.

YOURKOWSKI/NOVAK - MOVED TO GO INTO EXECUTIVE SESSION TO FINISH DELIBERATIONS. (Board of Adjustment.)

There was no discussion.

VOTE: YES: NON OBJECTION. UNANIMOUS CONSENT.

Motion carried.

Mayor Hornaday recessed the Special Meeting to go into Executive Session at 8:35 p.m. and reconvened the Special Meeting at 8:58 p.m.

Mayor Hornaday stated that they have concluded deliberations for this evening and will continue deliberations in the future and presumes that a written decision will be prepared and issued to the parties after deliberations are concluded.

COMMENTS OF THE AUDIENCE

Debra Spencer shared her comments and concerns about land ownership matters, City obligations, children, and about DOT fund contributions and permits and astronomical expenditures. She advised the Council that she lives in the first church of God and that she is responsible for its protection, that she will do this to her death and she keeps telling this to everyone that pounds on her door. She informed the Council that her land has been paid for by another Debra Spencer created in Anchorage and that there is an identity theft situation that affects her, her life and her boyfriend. She asked the Council for ground zero safety and thanked them.

COMMENTS OF THE CITY ATTORNEY

City Attorney Tans had no comment.

COMMENTS OF THE CITY CLERK

City Clerk Calhoun had no comment.

COMMENTS OF THE CITY MANAGER

City Manager Wrede was not present.

COMMENTS OF THE MAYOR

Mayor Hornaday had no comment.

COMMENTS OF THE CITY COUNCIL

Councilmembers had no comments.

ADJOURNMENT

There being no further business to come before the Council the meeting was adjourned at 9:02 p.m.

The next regular meeting is scheduled for Monday, August 22, 2005 at 7 p.m. and the next Committee of the Whole is scheduled for Monday, August 22, 2005 at 4 p.m.. All meetings scheduled to be held in the Homer City Hall Council Chambers located at 491 E. Pioneer Avenue, Homer, Alaska.

_____________________________________

MARY L. CALHOUN, CMC, CITY CLERK

Approved: _______________________

1. Per HCC 21.49.060(A) no disturbance shall occur within 8 feet of the eastern lot line or within the drip line of trees on the adjacent lot to prevent root damage, furthermore per HCC 21.61.060(f)(5) to ensure privacy of adjacent property.

2. Mr. Griswold requested that this word be changed to set back, that this is what he said. The tape is clouded since the Mayor was speaking and Mr. Griswold began his comments while the Mayor was still speaking. The word may be set back and sounds like the word such.