Session 04-26 a Special Meeting of the Homer Advisory Planning Commission was called to order at 6:00 p.m. on December 8, 2004 by Chair Chesley at the Homer City Hall Council Chambers located at 491 E. Pioneer Avenue, Homer, Alaska.
PRESENT: COMMISSIONERS
CHESLEY, FOSTER, PFEIL, LEHNER, CONNOR
ABSENT: COMMISSIONERS BARTLETT, HESS (excused)
STAFF: CITY PLANNER MCKIBBEN
DEPUTY CITY CLERK JACOBSEN
CITY ATTORNEY TANS
A quorum is required to conduct a meeting.
CONNOR/PFEIL MOVED TO ADOPT THE AGENDA.
VOTE: YES: UNANIMOUS CONSENT
Motion Carried
City Planner McKibben read the Background, Appeal and Discussion into the record.
Chair Chesley explained that there would be a Public Hearing for testimony by any interested parties, and then there will be presentation of evidence, opening statements from the Appellant, Frank Griswold, the Permit Applicant, Chad Deakins, and the Appellee, City Planner McKibben. Chair Chesley said after completing that process the Commission will go into executive session to deliberate and will have their decision out as soon as possible.
There were no members of the public to testify
APPEAL HEARING
A. An Appeal, filed by Frank Griswold, received on the administrative decision to issue Zoning Permit No. 0804-062 to Chad Deakins for 495 Klondike Avenue, KPB Tax ID no. 177-102-02; HM T6S, R13W, S20, S.M.
Chair Chesley said that after reviewing the packet he asked City Planner McKibben to provide, copies of the permits that were referenced in the Staff Report dating back to 1983, the utility connect application zoning permits and the driveway permit. Copies were distributed to all parties, Commissioners and Staff present.
No Commissioners wished to declare a conflict of interest or ex-parte communication.
Frank Griswold began his opening statements then asked if he should be sworn in. Chair Chesley administered the oath and asked Mr. Griswold if he swears or affirms that the testimony that he was about to give was the truth, the whole truth, and nothing but the truth. Mr. Griswold did so swear.
Mr. Griswold read his response to Staff Report PL 04-107 Re: Appeal of Zoning Permit 0804-062 into the record. In summary:
ü The Zoning Permit was issued for a 20’x30’
shop not, 20’x20’
ü There is no evidence that HCC 21.30.040
(a)(6) or any other zoning violation abatement provision was ever implemented.
ü No zoning permit was displayed at the time
this appeal was filed. If it was
displayed it was not at a prominent place where it was readily viewable.
ü Parking could become an issue if the “shop”
generates traffic.
ü After-the-fact removal of the structure
located within the setback does not validate zoning permit 0804-062.
ü Except for some of the pilings and floor
joists, the “shop” is new construction.
ü “Shop” is undefined in Homer City Code.
ü A narrative description of the intended use
is required by Homer City Code and the narrative provided is not adequate
ü If the zoning permit is amended to include a
statement that all information is true and correct, the underestimated value
should be amended as well.
ü No legal authority is cited for the
statement, “City code does not specifically indicate a duty can be
delegated.” There is no provision in
the code that authorizes Planning Technician Engebretsen to issue zoning
Permits.
ü If the structure were to be used for
commercial meat processing or as a secondary dwelling additional regulations
will likely apply.
ü Zoning permit 0804-062 is not complete,
reasonable or accurate.
Mr. Griswold offered four photos of the construction on the property. He said photo 1 was taken the day of or the day before the zoning permit was issued. It was labeled Exhibit 1 but not yet admitted as evidence. The remaining photos were listed as Exhibits 2-4, but not yet admitted.
Chair Chesley asked Mr. Deakins if he had any questions for Mr. Griswold regarding his testimony. Mr. Deakins asked if Mr. Griswold had such a problem with the original existing building, why he didn’t do something about it before. They have been neighbors for 10 years. Mr. Griswold said that he never intended this to be a formal proceeding. He said he saw some problems with the construction and wrote an informal letter to the Planning Director but didn’t get a response within a week and didn’t want his time to appeal to expire so he felt he had no choice, but never thought it would have to go this far.
City Planner McKibben had no questions for Mr. Griswold.
Chair Chesley said he had been by the site the day before and hadn’t seen the structure that Mr. Griswold referenced in the fourth point of appeal. Mr. Griswold said no, the structure was removed on Monday December 6.
Chair Chesley asked how current the imagery was on the aerial photo of the subject property that was displayed. City Planner McKibben said it was from summer of 2003 and to keep in mind that the lot lines are not accurate and not aligned correctly, it was provided as a point of reference. The aerial photo was labeled as Exhibit 5 but not yet admitted.
City Planner McKibben clarified for the Commission that the structure with the blue tarp roof in the aerial photo was not the structure in question, the one shown has since been removed and the new structure is in the same location.
Chair Chesley swore in Mr. Deakins.
Chad Deakins said the original structures were a trailer and two outbuildings when he bought the property in the early 1990’s. When he built his house he moved the two outbuildings, combined them into one building, and was not aware that he needed a permit to do so since they were already on the property when he bought it. Mr. Deakins explained that the buildings were deteriorating and would caused him to lose his homeowners insurance if he did not get rid of them. He built the new structure to increase his property value and get his insurance back. He has tried to follow everything the City has advised him to do. He submitted his revised drawings of the building on the lot. City Planner McKibben said she had copies of the drawings and recommended Mr. Deakins present the originals to the Commission as an exhibit. The two pages were labeled as Exhibit 6, but not yet admitted. Mr. Deakins said that the permit is displayed, where he believes to be the best location. He told the Commission there is a lot of foot traffic and people cut across others property and steal in that area. Mr. Deakins believes Mr. Griswold is complaining about the location of the permit because he is not allowed on the property. Mr. Deakins said he put up the No Trespassing signs because there is a lot of debris in the yard from the teardown project and doesn’t want anyone to step on the boards with nails and such but is in the process of being cleaned up.
Mr. Griswold asked Mr. Deakins if storing tools is the primary purpose of the shop or if there is a secondary purpose. Mr. Deakins answered that the primary purpose is for storing tools and work on hobbies with his wife and three children. He clarified that it is not going to be a butcher shop, a barbershop, a gun shop or anything else. He said he is a butcher by trade and does woodworking as a hobby. Mr. Griswold asked if a condition of the permit is not to allow commercial or quasi-commercial activities, there would not be a problem with that. Mr. Deakins asked for a definition of commercial. He continued that he has a few woodwork projects that he is sending out of state but would not classify it as commercial. Chair Chesley commented that activity that generates an income out of the structure could classify it as commercial.
City Planner McKibben stated that she had discussed the issue of a personal use shop versus commercial use activity with Mr. Deakins and he has plans at some point to turn some of his woodwork into a commercial activity but at this point it is personal use. She said they had discussed that if it does become commercial business he would need to come back to talk about permitting at that point. Mr. Deakins followed up stating that he has a long way to go, years, before he can start processing anything.
Mr. Griswold commented that the buildings that he put together were existing buildings on the property and asked if they were shown on his plot plan when he got his permit to build his house in 1997. Mr. Deakins said he did not have plot plan on his house, he got a permit and that was all that was required of him at that time.
Chair Chesley swore in City Planner McKibben.
City Planner McKibben said the 20’x20’ on the staff report was a mistake, that the shop is 20’x30’ and is noted as such on the application, site plan and zoning permit. She pointed out that Mr. Griswold was correct that no stop work order was issued. When the Planning Department found out that work was underway with out a permit a phone call was made and a permit was issued the same day, so there was no need to issue a stop work order. City Planner McKibben said that the permit is displayed today and has been displayed off and on throughout the months and commented that there have been some windstorms, but the permit has primarily been there. She reiterated that the existing structure that was built within the 20-foot setback has been removed. It had been suggested to list it as a condition on the permit, but it would not be appropriate to require it now since the structure is gone. She said that there are no natural drainages on the property and the site plan that was presented shows surface water movement on the lot. The driveway permit was issued prior to Mr. Deakins purchase of the property and no changes were made to the driveway. She said that residential use was noted on the permit in the upper right corner, the residential fee was charged and that the residential use was communicated verbally but not shown very well in the permit form. She agreed with Mr. Griswold’s comments that changes need to be made in the zoning permit process and the forms need to be updated. She said the forms need to be more explicit regarding the types of information that Planning wants and need to give the applicant more direction as to what types of information should be supplied. Ms. McKibben stated that it was very clear at the time of application and on the application form that it is an accessory use to the primary use of the residence and that Mr. Deakins was very open that someday he would like to turn his woodworking into a business but at this point it is a personal use shop. With regard to the applicants signed certification, Ms. McKibben said that it is a deficiency in the form that existed at the time Mr. Deakins applied and the form has since been corrected but a copy of the updated form was included in the packet.
Ms. McKibben address the delegation of authority and said that it has always been her understanding that it is assumed that authority can be delegated. Ms. McKibben used an example that the Finance Director’s responsibilities are outlined in the code but that does not mean that he does each and every one of those things and the code does not specify exactly who that authority can be delegated to. She said that the Planning Director has ultimate authority in the department and if mistakes are made, she is responsible.
Ms. McKibben said the water/sewer and driveway permits were taken care of long ago, and she did not believe that there were any other permits that were applicable for the permit. She commented that if a permit is issued and other permits are not obtained the Homer City Code specifies that neither the City, the Planning Director, any other City Official or employee shall be liable therefore. The applicant, owner, lessee and occupant on the lot are solely responsible to ensure that all required permits and approvals have been obtained and the issuance of a zoning permit does not constitute a warranty or representation that all required permits and approvals have been obtained from the Federal, State or other governments or agencies. She said the permit that was reviewed and signed off was consistent with the level of review typical for small-scale residential accessory buildings.
Mr. Griswold said that he is baffled by the statement made in the paragraph of page two of the staff report. He said that it conflicts with her comments that no stop order was issued. City Planner McKibben clarified that she was saying Mr. Griswold was correct in saying that a stop work order was not issued; when the department learned that the work was taking place with out a permit a phone call was made and a permit was obtained the same day. She said the appropriate abatement of this violation was obtaining a permit, which was done the same day. Mr. Griswold asked if it would be proper to assess fines for the days the construction was underway with out a permit. Ms. McKibben said that could have been done but typically the department tries to take a more positive approach and would rather the individual obtain a permit and not issue fines. Mr. Griswold said that Mr. Deakins shared his intended plans for the shop with Ms. McKibben and Mr. Griswold had been asked why he did all of this. He asked Ms. McKibben why she didn’t let him know if she was aware of all of this, he did not know until tonight. Ms. McKibben said she only learned of this when she spoke to Mr. Deakins to get a better understanding of the situation while she was preparing the staff report and he is very clear and understands that should he use the shop in a different capacity than an accessory use to his residence, then he needs to come back and talk to the Planning Department to address any requirements or restrictions that may apply to the use.
Mr. Griswold said that Ms. McKibben’s referred to the accessory use building as a shop, but the code does not address a shop as an allowed use of an accessory building. He asked why she didn’t refer to one of the uses that are already in the code instead of making up a new one. Ms. McKibben said that the list in the code is not all-inclusive when it discusses accessory uses to a residence and she considers a personal use shop to be customary as subordinate to the primary use of a residence. Mr. Griswold asked how a property owner is to know what they can do in their in their personal use shop with out coming to the City to ask, he said it seems ambiguous. Ms. McKibben answered that the code can’t specify each and every possible use. Chair Chesley clarified that Mr. Griswold’s question was since the term shop is not in the code why didn’t Ms. McKibben select a term or one of the categories that is in the code, like accessory use structure. Ms. McKibben said she suggested in the staff report that it could be called an accessory use to the residence but that is not helpful to her when talking to a property owner because generally the property owner has a better concept of a personal use woodworking shop than an accessory structure. Mr. Griswold asked if a person gives a narrative of the intended use and got approved for that use, then decided to do something slightly different, is the property owner bound by the narrative or would it be lumped into the nearest category. Ms. McKibben said it is easier from an administrative point of view to look at things in a more general nature, for example, is it being used commercially, no, is it an accessory use to the residence, yes, is it another residence, no. She said she doesn’t need to know what is happening inside down to the littlest detail. Mr. Griswold commented that the narrative would help find the appropriate category. Ms. McKibben said a lot of information comes out in discussion and it is important to ask the right questions because a lot of people don’t understand what an accessory use is. In staff’s discussions with the applicant it was clear that it was going to be used as a personal use building, that is why the residential fee was charged, and it was marked as a residential application. She confirmed for Mr. Griswold that the same fee would be charged whether it was a remodel or new construction and said she could not see a lot of advantage in residential construction to differentiate between remodels and new construction. Commercial would be different because of different levels of information that is needed.
Mr. Griswold asked City Planner McKibben if she sought a legal opinion on the issue of delegation of authority. Ms. McKibben answered no. Mr. Griswold laughed and asked why not. Ms. McKibben said she was sure there would be one by the end of the process.
Mr. Deakins had no questions for Ms. McKibben.
Commissioner Lehner asked if the Planning Department keeps any kind of log when problems are called in. Ms. McKibben said they started keeping a log this summer.
Commissioner Pfeil asked if staff takes photos when a permit is issued and how many permits are issued per year. Ms. McKibben said not usually, they tend to take more photographs when they are doing violation inspections and that there have been over 100 permits this year. Commissioner Pfeil asked if staff makes an onsite visit when presented with a zoning application. Ms. McKibben said she is not sure how often site visits are done and doesn’t know how often they were done in the past. She said it is something they would like to build up to and in this case staff did go to the site to have the permit signed, but a site visit is not part of the standard part of the permitting process at this time.
Commissioner Foster confirmed that the Planning Department first learned of the work taking place on August 16 and the permit was issued the same day. City Planner McKibben said she was not sure if Mr. Deakins came to the office or if it was done over the phone. She said that when someone comes in to submit an application, staff fills out the information on the computer while talking to the applicant. Mr. Deakins confirmed that he came by the office. Commissioner Foster said that would explain why they didn’t take pictures of the property, because it was no longer a violation. Ms. McKibben said it was a matter of hours from when they were notified to the time the permit was issued. Commissioner Foster confirmed that a plot plan was submitted, even though it was not checked off on the form. City Planner McKibben said that it not being checked off was an oversight by staff and that the copy of the plan that was submitted with the application is the one included in the packet. Commissioner Foster asked City Planner McKibben if there had been any mention of the phone calls Mr. Griswold made to her prior to August 16. She said Mr. Griswold called on the August 16th and she had his letter dated August 19th, which was next in her pile of things to do.
Commissioner Connor asked for clarification about the structure that was supposed to be removed. Ms. McKibben said that the condition on the permit in 1997 was to remove a mobile home and in this case there was a small structure that was in the setback which was removed just days ago.
Commissioner Lehner asked if City Planner McKibben had reviewed the permit while Planning Technician Engebretsen was processing it and asked for clarification what the codes at the top right of the zoning permit mean. City Planner McKibben said she did not review the permit. She said that on the permit, NR is new residential, NC is new commercial and she believes NRA/R is new residential addition remodel. She said she thought the information might be for reporting information to the Borough and HUD for statistical use.
Commissioner Connor mentioned the reference to HCC 21.42.030 (a) and asked where the statement came from on page 3 of the staff report that reads: “City code does not have to specifically indicate a duty can be delegated. In fact, staff has been previously directed to remove the term “or designee” from proposed code amendments.” City Planner McKibben said it is not specific to the Homer City Code, but from her past experience, it is her understanding the delegation is assumed. Chair Chesley asked City Planner McKibben to elaborate on the statement that Commissioner Connor referenced. City Planner McKibben said that it is based on her working experience, there are several cases where it is called out in the Policy and Procedures Manual but it was not specific to the zoning code. She continued that in all of her work in municipal government delegating has been the operating procedure, and as she mentioned earlier, the Planning Director has the responsibility if a mistake is made but one person can not do everything that needs to be done. Chair Chesley remarked that he agrees that the Planning Director does not have to do all of the file work but the code says that the Planning Director will sign the permits. She agreed that this is an important question to have answered and it would be useful in how business is done. She said what was done on this permit was not unusual, if it was incorrect, it can certainly be corrected, but it has been done like this for quite a long time.
Chair Chesley asked if permits were issued telephonically. Ms. McKibben said that while they can take the information over the phone, since the information is entered into the computer by staff, but the permit is not valid until it is determined complete, signed and paid for.
City Planner McKibben went over the new forms that the department has been working on and said that the certification of true and correct information was clearly a deficiency in the previous forms was corrected.
Mr. Griswold said that he never filed a complaint; he just saw construction was taking place and called Planning to see if a permit had been issued. He said he thought they had attempted to fool him a bit by indicating that it had been issued and faxed him a copy of the plot plan, but it was in pencil and hard to read. He spoke to Beverly because he thought there should be another form, and she had told him that she couldn’t give it to him because it hadn’t been signed yet. The next day he saw Julie Engebretsen come to the worksite and have Mr. Deakins sign the permit and went back to City Hall, then about 20 minutes later someone from Planning called him and said they had the permit signed and available to pick up if he wanted to see it. He said that permit protects a lot of people. Testimony was interjected that the project had begun the Saturday previous to the issuance of the permit, he said he has photos of the property on July 15, 2004 to shows demolition of the structure under had taken place and City code states that if you are taking down a structure a permit is needed at that point. In summary Mr. Griswold said he doesn’t intend to make a big deal out of this but hopes the Commission sees that the issues here are larger than one lot down in Felony Flats and just because they live in Glacierview Subdivision it is no reason to say okay you can go, and he said it appears that this may be a problem that effects more neighborhoods than just his and he hopes something positive comes of this. Mr. Griswold thanked the Commission.
Mr. Deakins said that as Mr. Griswold had stated he has been watching what was happening on his property and was glad to see that the original structure is gone, but was upset that the new one is going up. He said he was not aware that he had to have a permit to take it down and is sure that if Mr. Griswold knew that he was going to build a new one Mr. Griswold would have made sure that he had one. He said that construction did commence the Saturday before he obtained the permit and had been in contact with the Planning Department on getting that permit and was antsy to get it going. He apologized to City Planner McKibben for causing all of the grief and hopes a conclusion can be reached.
City Planner McKibben said she had no further comments.
Chair Chesley received Exhibit items 1-6 into the record. He advised the group that they were going to conclude the meeting and the Commission was going to go into executive session and work on their decision. He said the written findings would not be issued tonight, but as soon as the document is ready, copies will be mailed out to all parties by the City Clerk’s office.
Notice of the next regular or special meeting or work session will appear on the agenda following "adjournment".
There being no further business to come before the Commission the meeting adjourned at 7:40 p.m. The next Regular Meeting is scheduled for December 15, 2004 at 7:00 p.m. in the City Hall Council Chambers.
MELISSA JACOBSEN, DEPUTY CITY CLERK
Approved: