Session 09-14 a Special Meeting of the Homer City Council was called to order on June 22, 2009 at 5:33 p.m. by Mayor James C. Hornaday at the Homer City Hall Cowles Council Chambers located at 491 E. Pioneer Avenue, Homer, Alaska, and opened with the Pledge of Allegiance.
PRESENT: COUNCILMEMBERS: HOWARD, LEWIS, NOVAK, ROBERTS, WYTHE, ZAK
STAFF: CITY MANAGER WREDE
CITY CLERK JOHNSON
CITY ATTORNEY KLINKNER
CITY PLANNER ABBOUD
Department Heads may be called upon from time to time to participate via teleconference.
AGENDA APPROVAL
(Only those matters on the noticed agenda may be considered, pursuant to City Council’s Operating Manual, pg. 5)
The agenda was approved by consensus of the City Council.
A. Appeal of Denial of CUP 09-02 – Susan DiFrancia
Mayor Hornaday stated this is an appeal by Susan DiFrancia of a decision by the Planning Commission to deny a conditional use permit (CUP) on property located at 1002 Ocean Drive Loop. No written briefs have been filed. Neighbor Robert Lee Dewees has entered an appearance.
PARTIES OF THE RECORD
Appellant Susan DiFrancia and neighboring property owner Robert Lee Dewees identified themselves to the Board of Adjustment.
PRELIMINARY ISSUES
Mayor Hornaday stated there were no pending motions or preliminary issues. Appellant Susan DiFrancia and neighboring property owner Robert Lee Dewees were granted a total of 30 minutes each. There was no objection from the Board. Parties were reminded that this is not the time to offer new evidence to the Board. Each party must base their case on the evidence in the record from the Planning Commission.
ORAL ARGUMENT
Susan DiFrancia thanked the Board for the opportunity to present argument and wash out the definitions of guest cabins, roominghouse, and dwelling. Her proposed plan falls in the cracks of those three. Roominghouse is an outright permitted use in the residential area. A permit is required in order to have one building containing more than a permitted use on one lot. She is trying to understand where she fits in. When she first submitted the application she was advised to present the plan as guest cabins. Upon deciding to appeal the denial of the conditional use permit for the guest cabins, she proposed three guest locations within a building as a roominghouse. Homer City Code states she can have up to 15 guests and up to five units.
Ms. DiFrancia stated the three rental cabins met the definition of a roominghouse, not a dwelling unit since they did not have the full kitchen. She had planned to put in a microwave and counter for coffee. Each lot shall maintain a minimum of 10,000 sq. ft. per dwelling unit if served by public water and sewer. The City of Homer Planning staff determined her proposed cabins did not meet the definition of a dwelling and were not subject to dimensional requirements of the 10,000 sq. ft. per dwelling unit. Three proposed cabins, if connected with a common wall, are a roominghouse. The CUP should be approved if she agrees to construct them with common walls. It would solve all the questions and be the basis to reverse the denial and approve her amended application.
Ms. DiFrancia presented some photographs of a property located on her street. City Attorney Klinkner advised the photos are not allowable, as the Board is to hear the case based on the record. Photos were not a part of the record.
Ms. DiFrancia questioned the double standard in the neighborhood, with many Bed and Breakfasts, rentals, Homer Inn and Spa and the Beluga Lake Lodge. She questioned the density of her construction, indicating there are places on the ocean side of the street that she cannot take pictures of, as they have so much construction on them.
Another finding the City presented to support their denial was that cabin structures are not consistent with the Rural Residential district. That finding is inconsistent with like use properties in the neighborhood. There are more dense developments in the neighborhood than her proposal, and a huge junk yard on the street, namely Mike Kennedy’s property. Little shacks are being rented out that are poorly constructed. Her three non-dwelling units with small footprints create less density than most of the neighboring structures. Her intention is to create a retreat like atmosphere with flowering gardens. Her proposed design with three lovely small structures will add beauty to the neighborhood. She will build them with common walls if necessary into one building.
Ms. DiFrancia referenced the finding that the proposal is not compatible with the existing surrounding land uses. The neighborhood includes a mixture of single family homes, both on larger and smaller lots than hers. There is a vacant lot next door zoned as wetland. Bob Brant is choosing not to develop that property, instead, leaving it as a buffer. Two vacant lots across the street are owned by the City; they are only 20 ft. wide due to erosion. Developing her property may create an obstruction to the Brant’s view. It is unfair that she is not allowed to develop her property in a beautiful and harmonious way with the neighborhood. She has lived in the area for almost 20 years, and has a high regard for the beautiful oasis.
The finding states that the proposal is not compatible with surrounding land uses, but goes on to recite surrounding land uses to include duplexes, rental cabins and Bed and Breakfasts. It further states there is some vacant land due to wetland circumstances. Ms. DiFrancia said this is untrue, as her property has already been approved for development by the Army Corps of Engineers. There is a 20 ft. buffer on one edge that would not be affected by development. She submitted a request to the Army Corps of Engineers who stated by approval letter that she could build on pilings in that area. The property located two lots away and owned by Steven Rouse has a pending determination by the Corps of Engineers that allows for the construction of a 3,500 residence roominghouse. Mr. Brant chooses not to develop his property and unfairly attempts to block legitimate development on other private land. The argument that her proposal lacks harmony with the neighborhood lacks credible evidence to support it and is without merit.
Ms. DiFrancia referenced the City’s finding that her proposal is not contrary to the applicable land use goals and objectives of the Comprehensive Plan. The integrity of the neighborhood will be enhanced by the addition of her three rental cabins or a larger building with gardens. She is not looking at creating crash pads, but rather units that attract a specific clientele that appreciates the beauty of Homer. They can see eagles fly, watch the tide change, get away from their hectic life and enjoy some serenity. It has been a long time coming for Ms. DiFrancia to have the opportunity to develop her property. She lived at 3119 Lake Street for years and totally respects the beauty of the neighborhood.
When Ms. DiFrancia appeared before the Planning Commission she presented her idea about the gardens and her whole intention. Their decision was not based on anything she planned or said. The proposed addition would positively enhance the attractiveness of the residential neighborhood, without clustering the area. The City made the same point in separate ways, and her responses include the same thing.
As to parking, the finding states that the parking plan does not meet the dimensional requirements of a site plan drawn to scale and a detailed parking plan. Dotti Harness with the Planning Department advised her that the parking spaces needed to be 9 ft. wide by 20 ft. long. Together, they identified seven parking spaces with adequate space for turning around. Dotti assured her this was adequate parking. Upon the advice of the Planning Department, she eliminated some parking spaces, but left enough parking. The current plan was recommended by City of Homer staff.
Ms. DiFranica’s last point is that she does not understand why the Commission excused themselves and went upstairs to discuss her application in Executive Session. She thought this was an open process. In exploring the findings the next day with the Planning Department, she received guidance regarding eligibility of a roominghouse. This was the first time she ever heard of roominghouse. In all of her telephone conversations this option was never brought up.
If she needs to rent out the main dwelling as a requirement to be able to construct the three small buildings or one with common walls, that is what she will do. She asked that the determination be reversed and the application be approved based on her amendments. At minimum she requests reconsideration and tabling until a later date so that an acceptable solution can be reached. The decision is based on faulty assumptions and factual errors. The Commission is requested not to deny her an opportunity to:
ORAL ARGUMENT
Robert Lee Dewees lives at 3119 Lake Street. He purchased his home from Ms. DiFrancia in May, 2004. His bedroom is 18 ft. from the property line of 1002 Ocean Drive Loop; whatever happens will have an effect on his wellbeing and serenity. He supports the denial of the CUP. Per HCC 21.12.010 the purpose of the Rural Residential district is to primarily provide an area for low density primarily residential development, with limited agricultural use and other uses as provided in the chapter. Ms. DiFrancia is correct in stating there are a number of Bed and Breakfast dwellings in the area. Ocean Drive Loop, Lake Street and Krueth Way are all dead end gravel roads and maintained by the City. There has been an effort by the City to keep the roads drivable because of high traffic. Krueth Way is all Bed and Breakfasts and multi family dwellings. There is one Bed and Breakfast on Ocean Drive Loop. The area is saturated with Bed and Breakfasts, roominghouses and multi family dwellings. If there is no economic justification to create additional roominghouse or Bed and Breakfast facilities, the impact of adding additional cabins or dwelling units would increase supply for those already in the existing business.
Rural Residential requirements are that each lot shall maintain a minimum of 10,000 sq. ft. per dwelling unit in excess of one unit per lot. The lot size is 16,100 sq. ft. With one dwelling unit already there and the requirement of 10,000 per unit, it is too much. At 1002 Ocean Drive Loop there is one dwelling unit and five additional out buildings. The four out buildings are in violation of the Rural Residential setback requirement identified in HCC 21.12.040(b)(2). Mr. Dewees filed a complaint with the Planning Department in reference to the situation. If sewer and water were not hooked up to the cabins or roominghouse it would create a potential public health or sanitation hazard.
There is a tremendous amount of traffic right now in the area; additional cabins would compound the problem. If development continues, the area will be only Bed and Breakfasts and roominghouses. There is some confusion with the assessor’s department as to what dwellings are on the 1002 Ocean Drive Loop property. The current total assessed value of the dwellings there is $32,500. Mr. Dewees expressed his appreciation of the Board taking the time to hear his point of view. He noted there were other folks in the audience that were supportive of the Planning Commission’s decision.
RESPONSE
Ms. Difrancia responded that she loves gardening, and two of the buildings are little greenhouses. Before the City brought in water and sewer she had a 5,000 water tank. She built a cedar sided building to contain the tank. That building is now being used for storage, as she sold the water tank. She would be happy to put up a nice row of shrubs to divide the properties. She is not going to build an eyesore, but rather something really beautiful. The property is just waiting to become something. Once the beautiful cabins and the gardens are there it will be like a little park. She doesn’t see why it will affect the quality of the Dewees’s life or what they have to look at.
Councilmember Roberts questioned Mr. Dewees’s reference to the five buildings on Ms. DiFrancia’s property. The diagram shows only three buildings.
Ms. Difrancia stated that there is the water tank storage and two greenhouses.
Councilmember Novak asked Ms. DiFrancia why she changed the original application from one cabin to three.
Ms. DiFrancia answered she knew nothing about the zoning when first applying and did not think there would be a problem. She came in with a plan for three cabins, her original goal. She worked with Dotti, both of them were excited and had a lot of fun with the application. Dotti walked her through it, taking a good amount of time. The next morning Dotti called her and said it would not work to have three cabins because of the 10,000 sq. ft. requirement. Dotti said the best bet is to try for one. Ms. DiFrancia didn’t want challenges, so changed it to one. People told her she should not change her mind since cabins were all over the City. People encouraged her to go after her original plan. She changed it back to three cabins because everyone else is doing it around town and nobody thought she would have a problem.
Councilmember Zak asked Ms. DiFrancia if the Planning Department had given her any recommendations on what might not require a CUP and if she had considered any of those.
Ms. DiFrancia answered she was not given any recommendations. She first heard of a roominghouse the day after the Planning Commission meeting. After the closed door meeting, she asked what happened and was told she would have to get the decision from the City the next day. Until then she had no idea about the roominghouse. If she had known she could have checked into the zoning. Had she had more information she would have taken a different approach. There are so many cabins around Homer and many rental places in her neighborhood. Naively she thought she would beautify her neighborhood and who would resist her.
Mayor Hornaday referred Ms. DiFrancia’s question of why deliberations are not held in the public to the City Attorney. City Attorney Klinkner responded that the Open Meetings Act does not apply when a body is deliberating on an adjudication such as this. They are entitled to go into private session to deliberate and make a decision.
Mayor Hornaday noted the conclusion of oral argument. He advised parties that deliberations of the Board will now commence and continue from time to time as necessary until completed.
NOVAK/LEWIS - MOVED TO MOVE INTO DELIBERATION AT THIS TIME.
There was no discussion.
VOTE: YES. ROBERTS, WYTHE, ZAK, HOWARD, NOVAK, LEWIS
Motion carried.
Mayor Hornaday stated a written decision will be prepared and issued to the parties at a later date after deliberations are completed.
ADJOURNMENT
Mayor Hornaday called for a motion to adjourn the public portion of the Board of Adjustment meeting.
ROBERTS/NOVAK – SO MOVED.
There was no discussion.
VOTE: YES. NON OBJECTION. UNANIMOUS CONSENT.
Motion carried.
There being no further business to come before the Board of Adjustment, the meeting was adjourned at 6:19 p.m.
______________________________
JO JOHNSON, CMC, CITY CLERK
Approved: _____________________