Session 05-04, a Regular Meeting of the Homer Advisory Planning Commission was called to order at 7:15 p.m. on February 16, 2005 by Chair Chesley at the Homer City Hall Council Chambers located at 491 E. Pioneer Avenue, Homer, Alaska.

PRESENT: LEHNER, HESS, CHESLEY, PFEIL, FOSTER, KRANICH, CONNOR

STAFF: CITY PLANNER MCKIBBEN

DEPUTY CITY CLERK JACOBSEN

PUBLIC WORKS DIRECTOR MEYER

A quorum is required to conduct a meeting.

APPROVAL OF AGENDA AND ADOPTION OF CONSENT AGENDA

All items on the consent agenda are considered routine and non-controversial by the Planning Commission and are approved in one motion. There will be no separate discussion of these items unless requested by a Planning Commissioner or someone from the public, in which case the item will be moved to the regular agenda and considered in normal sequence.

A. Time Extension Requests

B. Approval of City of Homer Projects under HCC 1.76.030 g.

C. KPB Coastal Management Program Reports

D. Commissioner Excused Absences

Commissioner Hess requested that Commission Business items be changed as follows: Item D become A, Item B stays as is, New Item C. - Flip Chart, Item F become D, Item A become E, New Item F - Fee Schedule, Item C become G, Item e become H and Item G become I.

The amended agenda was approved by consensus of the Commission

RECONSIDERATION

A. Staff Report PL 05-12 Re: Request For Commission Acceptance of a Nonconforming Structure on a Lot at 3141 Lake Street, Oscar Munson Subdivision, Lot 3.

CONNOR/HESS MOVED TO RECONSIDER STAFF REPORT PL 05-12.

VOTE: YES: UNANIMOUS CONSENT

Motion carried.

APPROVAL OF MINUTES

Commission approves minutes with any amendments

A. Approval of February 2, 2005 Regular Meeting Minutes

Chair Chesley asked if there were members of the audience who wished to comment on the minutes.

Bob Pickering commented that City Planner McKibben was questioning what he meant when he had said ”stamped engineers report”. He clarified that the stamp he was referring to was the Board of Architects, Engineers and Surveyors through the State of Alaska Department of Licensing for licensed individuals to legally perform the work that the stamp indicates they are qualified to do. He said it has the person’s license number on the stamp and they have to sign it. [1]

Chair Chesley advised the Commission that he had asked Commissioner Lehner to review the minutes for grammatical errors. He explained that the purpose of adopting the minutes is to make sure that the content of the minutes coincides with what was going on with that item on the agenda.

Commissioner Kranich commented that the motion and amended motion on pages 12 and 13 don’t clearly show what the amendments are. He recommended that the items that were amended be underlined and the items that were taken out have a line through them.

The amended minutes were approved by unanimous consent.

Public Works Director Meyer arrived at 7:35 p.m.

PUBLIC COMMENT, PRESENTATION

The public may speak to the Planning Commission regarding matters not on the agenda. The Chair may prescribe time limits. Public comments on an agenda item will be heard at the time the item is considered by the Commission. Presentations are approved by the Planning Director, the Chair, or the Planning Commission. A Public Works representative may address the Planning Commission.

Mimi Tolva, Parks and Recreation Commissioner and Co-Chair of the Trails Committee spoke in regard to Staff Report PL 05-11 Preliminary Plat and Vacation of a Portion of Crittenden Drive (item 7. on the agenda). She expressed her appreciation for the way Mr. Warburton and Mr. Herndon have done things for the City in the past and has no doubt they will do a good job on their proposal but thinks it would be a grave mistake to trade a 60 foot right-of-way access for a 20 foot easement, then building a stairway and dealing with the water run-off. Ms. Tolva referenced an email she sent and the Commission received as a lay down item. She recapped the concerns Mr. Warburton had commented on at the Trails Committee meeting on February 15, 2005, those being:

ü The storm drain and sloughing due to erosion

ü Unauthorized use of beach and access for parties, camping, etc.

ü Vehicle use right-of-way

ü Parking a) drainage pipe would require maintenance and parking area would need to be torn up, b) not enough room for parking.

ü Poor visibility from bluff to beach due to trees

ü Setback problem due to shape of Mr. Herndon’s property would require obtaining part of this easement or permission to build within setback.

Ms. Tolva stated that the Trails Committee is concerned that giving up the right-of-way will eliminate the opportunity for a pocket park. She continued that a meandering pathway 60 feet wide through a wooded area down onto a nice little bench area and on down to the beach would be far superior to a 20 foot stairway going straight down. There are some sloughing problems but the water runoff is a little brook and with rocks and landscaping it could be an asset and would be superior to a pipe in the ground spewing out onto the beach. It is possible for the City to put in an access and it is a prime spot for grant money. Ms. Tolva brought up the point that this issue has not gone before the Parks and Recreation Commission, as the Planning Commission had mentioned at their last meeting. Ms. Tolva said the Parks and Recreation Committee would be adding it to their agenda for their meeting on February 17. Ms. Tolva said she hopes the Planning Commission will postpone their decision or make the decision not to vacate.

Commissioner Hess advised Ms. Tolva that the Committee’s diligence needs to remain past this venue. He recounted a vacation of a right-of-way on a beach access that the Planning Commission had recommended against, but the Borough approved it, even though it is in the Borough Code that they can’t vacate right-of-ways to public waterways. It needs to be followed past the City level.

Ms. Tolva responded that when something like this happens and it is denied because of the public good, it just keeps coming back and no one had time to watch dog this again and again. Once the decision is made there should be a mechanism in place for the decision to stand.

Carol Hamik, also a Commissioner on the Parks and Recreation Commission and Co-Chair of the Trails Committee, commented that she never wants to see the public give up a 40-foot right-of-way that belongs to them. Mrs. Hamik referenced a statement in the email from Ms. Tolva that says “People sometimes assume that since an actual “highway” is not planned for the right-of-way on their property, that their rights as property owners should take precedence over the rights of the public. This is not the case and the public should not lose its rights to an easement just because a private property owner failed to understand. Once an access right-of-way is vacated, reacquiring it or a similar corridor is difficult and expensive at best, and impossible at worst.” She thanked the Commission for all of their work.

PUBLIC HEARINGS

The Commission conducts Public Hearings by hearing a staff report, hearing public testimony and then acting on the Public Hearing Items. The Chair may prescribe time limits. The Commission may question the public.

A. Staff Report PL 05-17 Re: Request for a Conditional Use Permit, CUP 05-03 Chapple, Request For Accessory Caretaker’s Residence as Permitted By HCC 21.53030(G) At 4535 Homer Spit Road, Lot 50 of the Homer Spit Subdivision Amended.

Chair Chesley announced that there would be a small change based on information from Commissioner Foster regarding the rules by which public hearings are conducted by the Borough Planning Department. Chair Chesley read, “Persons wishing to testify must wait for recognition by the Chair then come forward, state their name and address for the record and sign in on the sign in sheet. Each speaker is limited to five minutes unless they have a prepared statement in which case they may request additional time. All questions shall be directed to the Chair and all comments and questions will be kept to the subject at hand and not deal with personalities.”

FOSTER/KRANICH MOVED TO ACCEPT STAFF REPORT PL05-17 RE: REQUEST FOR A CONDITIONAL USE PERMIT, CUP 05-03 CHAPPLE, REQUEST FOR ACCESSORY CARETAKER’S RESIDENCE AS PERMITTED BY HCC 21.53.030(G) AT 4535 HOMER SPIT ROAD, LOT 50 OF THE HOMER SPIT SUBDIVISION AMENDED, WITH FINDINGS AND STAFF RECOMMENDATIONS.

Commissioner Hess stated that he would tend to make a motion to postpone this item for various reasons. One reason is that on conditional use application the applicant is Cindy Koch but the listed applicant is John Chapple.

City Planner McKibben responded that as long as the application has the owner’s authorization, which in this case is shown by Mr. Chapple’s signature as property owner on page 3 of the Conditional Use Application (page 39 of the packet), he has authorized Cindy Koch to apply for this permit.

Commissioner Hess conceded that point, but brought up his second point, referencing page 33 of the packet, that the caretaker’s residence is to exist past the event that the Chapples do not extend their lease and he does not believe that is a proper action.

City Planner McKibben responded that the City is the property owner and the City has the right through the lease to require the new leaseholder allow Ms. Keene to live there. The Finance Director and City Manager have no objection, only the condition that the RV be removed immediately upon which time Ms. Keene no longer lives there. The City owns the property and has the authorization to set those conditions. Conditional Use Permits run with the land, not the property owner.

Chair Chesley clarified that there is a use on the spit where Mr. Chapple owns the RV park and he is entitled, through conditional use, to construct a caretaker’s residence allowing someone to act as caretaker of his property throughout the year. The caretaker’s residence is linked to the use of the property as an RV park. It appears that through this application, the applicants are trying to come up with a permanent home site for Ms. Keene, but Chair Chesley thinks this is a stretch that can’t be made based on the way the staff report is written. He suggested that it be re-written so that all reference to Ms. Keene is taken out. It is simply Mr. Chapple requesting an accessory caretaker’s residence for his use at the RV park. Chair Chesley continued that there would need to be clarification on how that could be continued on the property and would to like to hear more from the Finance Director and City Manager on that point.

City Planner McKibben reiterated that City has the right, as the property owner, to apply any conditions to the lease within reason. Ms. McKibben agreed with the Chair’s comment about the linkage of the caretaker facility to the RV park and has not done further research into other allowed uses that permit an accessory caretakers building.

Commissioner Hess brought up his third point that there are some setback violations that should be determined to be non-conforming before the conditional use is permitted.

City Planner McKibben recounted another Conditional Use Permit that was done for another City lease property, the particular structure in that lease had a non-conformity that was addressed but there were other buildings on the site that the Commission elected to address at another time. The problem with the leases is that the applications of the City Code don’t appear to have been applied consistently to the lease properties in the past. It seems that each time they have to deal with properties on the spit they will probably continue to run into problems like this. It is something they are aware of and can continue to work with the applicant to bring things into conformity.

Commissioner Hess responded that he remembered them being separate buildings with separate leases, but this is all one lease and would like to see more clarification about the caretakers building remaining as part of the lease and on the set back issues.

Commissioner Kranich asked for clarification on a comment by Mr. Chapple that the Homer Spit Road has changed location since he began running the RV Park and that Mr. Chapple did not believe he was with in any setbacks based on the building permit issued in 1984. The points to be clarified being whether the road right-of-way moved or did the road move within the right-of-way. Commissioner Kranich said that he is in agreement that the caretaker’s residence needs to be looked at. If the property goes out for RFP again, the new leaseholder may not want it there. If the City wants to make up a lease for a dollar a year for that residence, the new leaseholder won’t have to deal with it.

Commissioner Lehner agreed that reference to specific people like Ms. Keene and Ms. Koch aren’t necessary.

HESS/FOSTER MOVED THAT STAFF REPORT PL 05-17 BE POSTPONED UNTIL SUCH TIME THAT STAFF CAN WORK WITH THE CITY TO GET CLARIFICATION ON ISSUES THAT HAVE BEEN RAISED.

VOTE: YES: UNANIMOUS CONSENT

Motion carried.

PLAT CONSIDERATION

The Commission hears a report from staff, testimony from applicants and the public. The Commission may ask questions of staff, applicants and public.

A. Staff Report PL 05-11 Re: Webber Subdivision No. 9 Preliminary Plat and Vacation of a Portion of Crittenden Drive. - Postponed from February 2, 2005 Commission Meeting

Chair Chesley recounted that action on this Staff Report was postponed from the February 2, 2005 Regular Meeting.

City Planner McKibben pointed out that she added several pages of email from Mary Toll, Borough Planner regarding this topic.

City Planner McKibben reported that Borough Code section 20.28.80 states that it disallows vacations to water bodies and Borough Code 20.28.140 does allow partial vacations. Ms. McKibben summarized Ms. Toll’s comments as follows:

ü It is seldom that a right-of-way vacation to a water body has been completely vacated in the last 10 years or so.

ü Ms. Toll disagrees with the comment that the Borough does it all the time.

ü The Borough Staff may recommend a partial vacation

ü Ms. Toll suggested a 20-foot pedestrian or non-motorized access easement to accomplish the goal of reducing the set back to have more building envelope.

ü A complete vacation to a water body is not likely to be approved but nothing is absolute.

ü A complete vacation to a water body would more likely be approved if an alternate access easement were granted in exchange, such as the proposed 20-foot pedestrian drainage easement. Especially if the case could be made that the location would not support vehicular access in the existing 60-foot dedication.

ü A 20-foot alley dedication would not be an easement. A 20-foot easement would retain the underlying fee ownership in the parcel but would grant the use of the area to others.

ü Usually Borough Code 20.28.140, Partial Vacation, is applied to older 100-foot rights-of-way where the width is excessive or to public access easements where roads have been dedicated and built nearby but pedestrian, drainage or utility or other access is needed in that location.

ü Sometimes Borough Code 20.28.140 applies to an area that may have a jog in a dedication due to subdivision over the years and a wider width would never be obtained. Seldovia is a good example where there are a few 50 or 60-foot jogs here and there but most roads were dedicated as 40 to 50-feet.

ü Borough Code 20.28.180 makes the vacation to water bodies harder and each application has to be looked at on a case-by-case basis. When the Borough Planning Commission determines that the proof supports the finding that only pedestrian access is feasible, necessary or desired vacation may be approved subject to the provision of alternate access either as a smaller easement in the same location or a dedication in an alternate location.

ü Borough Code 20.28.060 the burden of proof shall lie with the petitioner to support the petition.

Ms. McKibben noted that this section of right-of way does not serve as access to any other lot, there is not a practical purpose for vehicles to use that section of right-of-way. She added that the correspondence from Mary Toll was provided to the petitioner and his surveyor, so they are aware of various comments to staff.

Commissioner Hess commented that at the bottom of Ms. Toll’s comments, Borough Code 20.28.060 states that if there is public opposition to the vacation it is very difficult to get approval. He suggested getting input from the Parks and Recreation Committee and the Beach Policy Committee to find out their feelings on this plat issue.

Chair Chesley clarified after hearing Ms. Toll’s comments that the issue here is trying to find relief from the set back from the right-of-way and if the set back issue can be resolved then there is no reason to vacate the right-of-way.

City Planner McKibben continued that in certain areas of the Central Business District a Conditional Use Permit from the set backs can be granted.

Chair Chesley suggested they could amend the Code to address the set back issue then there is no need to vacate the right-of way and then they can address the developers need. Chair Chesley continued that as procedure, Conditional Use Permits go to Public Works and the Fire Department for review and suggested that when vacation requests like these come up, that the Parks and Recreation Commission, Trails Committee and the Beach Policy Committee should be included in distribution for review and comment.

City Planner McKibben remarked that it is very simple to include the Fire Department and Public Works in the comment period because they are staff and are available during regular work hours. Including Commissions and Committees that meets once a month or less frequently in the case of the Beach Policy Committee isn’t reasonable, there is no way to receive comment from them in time to get it in the packet. The timeframe allowed from when a plat is accepted and placed on the agenda is rather short and extending it would entail another amendment to the Policy and Procedures Manual for that process.

Chair Chesley asked for Commissioner comments regarding amending the Code to address set back issues.

Commissioner Hess expressed his concern that the process is so time consuming and it won’t accommodate the developer in a timely manner.

Chair Chesley commented that it seems out of sequence to be considering the reduction of a 60-foot right-of-way to a 20-foot right-of-way. What if after design, engineering, considering slopes and grades and everything else is taken into consideration, it is determined that they actually needed 35 feet.

Commissioner Foster expressed his reluctance to support a district wide conditional use allowance for vacation of a right-of-way. Central Business District was done for a specific purpose for a pedestrian friendly business district. He thought it would be easier in this case, to vacate the set back from the road and not make it district wide.

Chair Chesley clarified that at this time there is no tool to allow a waiver to the 20-foot setback but the Code could be amended so the Planning Commission could grant a waiver to the set back requirement on a case-by-case basis.

Commissioner Hess pointed out Borough Code 20.28.190, which discussed dedication of land for use other than rights-of-way, and wondered if it is a mechanism for this right-of-way to be dedicated for some other use.

Chair Chesley and Commissioner Foster continued discussion on the conditional use allowance for vacation of rights-of way. Commissioner Foster asserted that allowing this district wide would open Pandora’s Box and homeowners who want to build in the 20-foot set back will be calling for Conditional Use Permits and he doesn’t think it is a wise idea.

Eric Fuglestad, surveyor, commented that another component of this project is to provide bank stabilization for what is now four properties, the Ocean Shores Motel, the right-of-way and existing lots 7 and 8. In order to provide an effective means of stabilizing the slope and providing storm water runoff discharge, they are trying to do one major project rather than having to break it up for each property; that was another driving force behind the request for vacation. Another point is that they feel the construction, maintenance and ownership of an access structure and drainage structure of some sort that is owned and maintained by the landowner will ensure its continued repair and maintenance. This is to protect the landowners themselves and enhance the value of their property. They have a vested interest in maintaining the integrity of those structures at no cost to the public and then providing public access through an easement, alley or what ever means would ensure continued use by the public.

Mr. Fuglestad asked if there is a question as to whether or not a right-of-way can be used as a park.

Chair Chesley replied that there is a question whether the right-of-way can be totally vacated. The information in the correspondence from the Planning Officer at the Borough is not conclusive. He said the Commission is trying to find a way to honor what Mr. Herndon wants to do but still protect the public interest of the right-of-way. Their decision has to be tied to findings, which are supported in the code. Chair Chesley continued that the Commission is coming from a position to ensure they are on firm standing when they issue a decision; it is not that they don’t support what Mr. Herndon is proposing. The Commission knows that he can do magic with excavation machinery and could do a wonderful thing there.

Mr. Fuglestad said he hopes everyone understands that the request for the vacation was not to take land and make something bigger, it was recognizing the fact that the existing use as a dedicated right-of-way is unsuitable for what is intended.

City Planner McKibben reminded the Commission that they haven’t typically been making findings on plat actions. One option that staff discussed with the applicant was to withdraw the application and re-submit it with an alley. The City zoning code does not have the same setback requirements for alleys as with roads.

The Commission discussed the requirements of alleys and pedestrian easements.

Chair Chesley addressed Mr. Herndon and Mr. Fuglestad commenting that this is not going to be resolved at this time. They don’t want to shoot the project down, but if staff continues to work with the applicant and Ms. Toll at the Borough to try to address the concern of getting relief from the 20-foot setback and meeting public interest, perhaps they will find a solution.

Commissioner Kranich asked if a 20-foot setback is required from rights-of-way on all sides of property and the provision of being able to waive a setback in the conditional use process only applies in the Central Business District.

City Planner McKibben answered yes, a corner lot would have two 20-foot setbacks; and not all streets in the Central Business District are able to waive a setback, it does not apply to the Sterling Highway and Lake Street. As Commissioner Foster pointed out it was tied very clearly to goals of the Comprehensive Plan.

City Planner McKibben advised the Commission that the Parks and Recreation Commission will be adding it to their agenda for their meeting February 17, and the information has been sent to the Beach Policy Committee, but she doesn’t know if they have scheduled a meeting yet.

Commissioner Foster stated that if the vacation of a right-of-way in the other districts is tied in through the Comprehensive Plan in the condition that the right-of-way is to be used as a trail rather than a road, he could agree that a setback allowance could be waived.

Commissioner Kranich commented as to what happens in twenty years when the City has outgrown the need for the trail and now needs a street. It would be too late; it would always be a trail.

Larry Herndon remarked that there are two sides of the story. They are doing what they are doing because the Planning Commission has come down on Crittenden and knocked that right-of-way off that runs through there. The neighbors agree that they want a quiet neighborhood. No one minds people walking up and down the beach on the property; stopping it is not Mr. Herndon’s point. Mr. Herndon continued that in the future the intent is to get a zoning permit and perhaps build some nice condos or a four-plex. The way this is going now, if the lot line can’t be vacated, Mr. Herndon said he can go to Public Works, get a permit to put in a driveway down the road that is a right of way and guarantees that the neighbors are not going to like that. He reiterated that what they are trying to do is make a nice quiet neighborhood. Mr. Herndon said when he bought the property this summer, there were police evictions on tents that were parked on the property over the hill, hidden where there is a real nice place to have a party. He said they don’t want that kind of action anymore. Everyone knows there will never be a road there and putting a park there will have people coming down with their cars and in the middle of the night and people will have to police what is going on in their backyards. He said he didn’t think there is anyone here that would like to take a piece of property and have a park in their back yard.

There was brief discussion about where the liability lies if a property owner dedicates a trail across their property. Chair Chesley commented that in a previous instance it was determined that if a property owner dedicated a trail across their property, they are relieved of their liability.

HESS/PFEIL MOVED TO POSTPONE ACTION UNTIL SUCH TIME THAT STAFF AND THE DEVELOPER CAN WORK THROUGH IT.

VOTE: YES: UNANIMOUS CONSENT

Motion carried.

Chair Chesley called for a break at 8:40 p.m. The meeting resumed at 8:50 p.m.

COMMISSION BUSINESS

The Commission hears a report from staff, testimony from applicants and the public. Commission business includes resolutions, ordinances, zoning issues, request fro reconsideration and other issues as needed. The Commission may ask questions of staff, applicants and public.

A. Staff Report PL 05-06 Re: Proposal Amending HCC 21.59 Bridge Creek Watershed Protection District. - Postponed from HAPC meeting of February 2, 2005.

City Planner McKibben reviewed the changes to the Bridge Creek Watershed Protection District Ordinance.

Robert Pickering commented that he had questions, but they have all been answered. He asked to go on record to thank the Commission for their work.

LEHNER/PFEIL MOVED TO STRIKE THE WORD SIDEWALK ON LINE 18 AND LINE 21 UNDER HCC 21.59.070.

VOTE: YES: UNANIMOUS CONSENT.

Motion carried.

VOTE: (Main Motion)[2]

VOTE: YES: UNANIMOUS CONSENT

Motion carried.

Diann Martin asked where the Commission was at with the Mitigation Handbook.

City Planner McKibben answered that Commissioners Foster and Lehner have agreed to work with her to put it together and they will be getting together soon on that.

B. Staff Report PL 05-19 Re: Correspondence from Laukitis regarding porta-potties and outhouses in Old Town.

Buck Laukitis, property owner on Bunnell St., commented to the Commission regarding non-conforming septic systems in Old Town Homer. The lots in that area are close to the beach, they are tiny lots in the Central Business District that won’t perk, and have no water or sewer lines. There are City permits being issued for new developments in this neighborhood and people aren’t complying with either the City or DEC requirements. The policy is that if there is no sewer, then there has to be a 1000-gallon holding tank with a switch and a light that goes off when it is time to pump it. Every building in Homer has to have septic, whether it is dwelling or commercial. Mr. Laukitis told the Commission this whole thing came about because the contractor he has doing his dirt work is down there working every day and asks “Why does it always stink down here”. Septic is the most basic, elemental primary thing on any development, there has to be a sanitary septic. He also questioned what are people doing with their grey water. He reiterated his concern, if there is no sewer lines to connect to, why are people being allow to build with out a holding tank.

City Planner McKibben stated that she was unable to find anything in City code that appears to prohibit porta-potties being used as permanent waste facility, nor anything in State code that address the location, use or duration of a porta-potty.

The Commission discussed the state requirement of watertight vaults if sewer is not available. Points that were brought up are:

ü They must be 1000 gallons + 250 gallons for each bedroom over three, have the high water alarm, must be pumped regularly, have a DEC approved plan and a DEC permit.

ü The holding tank has to be approved as part of a waste management plan by DEC.

ü Portable Toilets are not outhouse, but they don’t meet the criteria for holding tanks.

City Planner McKibben commented that it is stated on the zoning permit that the applicant is supposed be connected to DEC approved facilities. There isn’t any real mechanism or process for following through but Planning and Public Works could likely come up with a system. It is just more growing pains.

Commissioner Lehner explained the only way the City can determine if design requirements are being met is by finding out what is in the waste management plan and also whether or not someone has a plan.

Commissioner Kranich spoke of a situation where he applied to connect to City water and was able to make the connection to the service with the stipulation that the connection could not be made to a residence unless there was DEC approved septic to the structure. Public Works should be seeing some kind of a DEC approved plan for septic before they are hooking water up. Mr. Kranich pointed out that in Old Town, there are a lot of older buildings that don’t even have City water, so why require them to have a holding tank with a high water alarm when they don’t even have water. It should be a requirement for new buildings going in and if installers are putting in “approved septics” their license would be on they line if they were putting in something that wouldn’t work.

There were questions for Public Works Director Meyer regarding enforcement of compliance.

Public Works Director Meyer replied that in 5 ½ years he hasn’t heard these particular concerns expressed before. Mr. Meyer commented that the City doesn’t pay attention to septic systems. The soils in Homer are terrible and there are probably a lot of failing septic systems, but there is the issue of whether the City wants to take that on as a bureaucratic task to keep track of these. DEC used to do a better job taking care of these things but at this point aren’t funded to do much more than approve paperwork that a certified installer provides when the facility is installed. Mr. Meyer surmises that it is a bigger issue than the Commission can deal with and the idea of talking about it is long over due. Mr. Meyer said there are issues that would waive a red flag to Public Works about septic; for example if someone had a zoning permit and Public Works knew there was no sewer to the property and the lot was too small for traditional septic. If the lot is big enough for septic they would confirm with the property owner that a DEC septic system would be installed, but Mr. Meyer doesn’t know that there is a procedure to follow up on that.

Commissioner Hess commented that this is one of the most basic functions that the City should take on. It is a health, safety and welfare issue and should be dealt with.

Public Works Director Meyer said it has not been a priority. Even when neighbors get together to request to bring sewer into their neighborhood, it has failed because a majority of people in a neighborhood don’t want it, even if they have a septic that has failed or their lot is too steep for a septic system. It just hasn’t been a big priority in this community.

Commissioner Lehner commented that she understands DEC is too under-funded to take care of the public welfare when it comes to environmental quality issues, but whatever funding they have she would lobby that Homer be a squeaky wheel. She questioned if there was a way to keep DEC’s feet to the fire because this is an issue of considerable significance in terms of public health, etc, in our community and we would like them to do whatever they can and if they can’t do anything perhaps we could write the Legislature.

Public Works Director Meyer replied that the City would probably be referred to what the Municipality of Anchorage did. They have their own municipal office of health and human services where you can get a permit from the City to install a septic, DEC has given authorization to do that and the permits are very expensive.

Commissioner Foster commented that this relates to the Bridge Creek Watershed District. If no one is going to take septic systems to task it will be a big problem. There needs to be a way to address this issue, even outside the City limits where the quality of our drinking water will be affected, let alone our beaches.

Chair Chesley agrees that this is an important topic and shouldn’t be something that is kicked around the departments because it isn’t in their purview. He suggested Mr. Laukitis submit a letter to the City Managers office to have it addressed.

C. Flip Chart Recording

The Commission discussed the idea of having a flip chart at each meeting to help track information requests the Commissioners make. The Commission agreed to try out the flip chart and that it would be part of public record. It was also decided that the flip chart would go back and forth between the Council Chamber and the Planning Office between meetings.

D. Staff Report PL 05-15 Re: Review Of HCC 21.42 Zoning Permit. - Postponed from HAPC meeting of February 2, 2005.

City Planner McKibben stated that the draft with the strike through and bold underline is a very clean, well written, straight forward amendment that the Commission was almost ready to go with it but started discussing remodels. She is struggling to find a place in the code for the remodel language.

Commissioner Hess commented that in the discussion of remodels and the exterior, the goal is to make anything the developer does comply with the Community Design Manual (CDM).

City Planner McKibben said at this time the CDM only applies to Conditional Use Permits and the Commission discussed taking baby steps because it was a lot for the community to swallow. It is a policy that the Commission has to make but she isn’t sure if it makes sense to apply the CDM to remodels when it isn’t applied to new zoning permits.

Commissioner Hess related that it is his thinking that it only applies to existing large developments. A situation like Safeway, for example, not only do they want to pick up their exterior remodel, but if Safeway was going to do additional work it would have to comply with the CDM. The idea is not to make them change everything they have, just the work they are performing for the remodel.

City Planner McKibben agreed with the idea, but in the case of Safeway, they will be required to get a new zoning permit and there are landscaping and lighting requirements that will apply, that didn’t exist for the original construction. The requirements are less extensive than the requirements of the CDM, but language could be added for remodels of X amount of area that would have to comply with the CDM. She said putting this current draft forward for public hearing and moving it forward, and then working on the remodel aspect at a future date would be a wise course of action.

Chair Chesley clarified that there be no further amendments to this and accept it as is.

The Commission discussed item #3 under the changes to HCC 21.42.010, “A change or expansion of type of use or any building, structure or parcel”, whether is it to stay, be taken out or defined somehow. The point was brought up that tilling up a large parcel and making it into a hayfield is a change of use. It was pointed out that particular situation is not regulated by the Homer City Code and therefore does not apply in this situation. Changing use of a parcel from an RV park to a tent camp or parking lot would be considered a change of use.

HESS MOVED TO AMEND HCC 21.42.010 ITEM 3 TO READ “A CHANGE OR EXPANSION OF TYPE OF USE REGULATED BY TITLE 21 OF ANY BUILDING, STRUCTURE OR PARCEL.

There was discussion regarding the wording of the motion and the motion was restated as follows:

HESS/KRANICH MOVED TO AMEND HCC 21.42.010 ITEM 3 TO READ “A CHANGE OR EXPANSION OF USE REGULATED BY HCC TITLE 21OF ANY BUILDING, STRUCTURE OR PARCEL.

VOTE: YES: UNANIMOUS CONSENT

Motion carried.

VOTE: (Main Motion) [3]

VOTE: YES: UNANIMOUS CONSENT

Motion carried.

E. Staff Report PL 05-18 Re: Request For Commission Acceptance Of A Nonconforming Structure On A Lot At 3141 Lake Street, Oscar Munson Subdivision, Lot 3.

City Planner McKibben recapped the information regarding Staff Report PL05-18.

The Commission discussed whether or not determination could be made if the building was constructed before the KPB Ordinance 78-37, which required 20-foot setbacks, was adopted. The subdivision was platted in 1957, so there is no setback note on the plat. The point was brought up that the shed was on the property when the Mack’s purchased it in 1982. There was concern that if the Commission did not accept this as non-conforming, if the applicant found more information that it was built before adoption of the Ordinance in 1979, they could appeal the Commission’s decision.

City Planner McKibben commented that the shed had previously been used as a residence, so there is question as to how removable the building is based on what the foundation is.

Chair Chesley replied that would not be a factor on which he based his decision. It would be based on the fact that the information submitted doesn’t demonstrate that it was in existence prior to the Ordinance date.

Commission Hess suggested continuing action until there is more clarification.

City Planner McKibben stated that the Borough enforced setback through platting regulations not zoning regulations.

Chair Chesley gave the example that a person owns a property that has been platted in 1957 and they don’t do anything with their land. In 1979 a new ordinance is adopted and still you do nothing with the land. In 1999 they decide to do something with the land, that is the first time anything happens to the plat. Just because an ordinance is passed in 1979 no one updates all the plats to add notes about setbacks.

City Planner McKibben said the process of setbacks being enforced through their platting through plat notes, if there is no note on the plat in 1957 then there is no 20-foot setback. If, for example, the property is subdivided in 1980 the plat note now shows and all new lots are now subject to the 20-foot setback. If at some later point the Borough adopts a setback through their zoning powers, not through their platting powers, and it applies through out the Borough that 1957 lot does apply to the 20-foot setback not through the plat notes but through the zoning rules.

HESS/LEHNER MOVED TO CONTINUE THIS ACTION UNTIL THE COMMISSION IS FULLY SATISFIED WITH WHAT THE REQUIREMENTS WERE FOR SETBACKS IN 1979, DURING THE ADOPTION OF BOROUGH ORDINANCE 78-38.

VOTE: YES: UNANIMOUS CONSENT

Motion carried.

Chair Chesley called for a recess at 10:30 p.m. The meeting resumed at 10:40 p.m.

F. Fee Amendments

Commissioner Pfeil provided a hand out for the Commissioners regarding fees changes for activities that have commenced without a required permit. Mr. Pfeil suggested that since staff has received complaints that a lot of construction is going on prior to obtaining zoning permits. He feels this change would be a good way of getting people to pay attention to getting a permit before they start working.

Chair Chesley clarified that this is a recommendation that the City Council amend the fee schedule to add this proposal which states should work begin prior to applying for a zoning permit or conditional use permit, when the applicant does get the required permit, they will be charged 1.5 times more than the regular permit rate for residential and 2 times the rate for commercial. Chair Chesley read from the hand out that this fee schedule amendment provides a financial disincentive for commencing without a permit and activity that requires one. Instead of being fined or otherwise sanctioned, and applicant may simply apply for a permit by paying the increased fee. Revenue from increased fees should be used to offset costs incurred by the Planning Department in conduction zoning compliance activities. A permit applicant may request a waiver of an increased fee assessment, for good cause, from the Homer Advisory Planning Commission. Payment of an increased application fee shall have the same effect as payment of the regular fee and will not guarantee that a permit will be issued.

City Planner McKibben states that the residential rate for a zoning permit is $180, so the increase would be to $270. Commercial charges vary based on the size of the building. She pointed out that the waiver for good cause has no parameters establishing what might be reasonable cause and that will make a lot of work for staff and the Commission to evaluate those.

Chair Chesley pointed out that staff has shared that it is complex and costly to go through a punitive penalty process to try to fine someone.

The Commission had a brief discussion whether or not the increase would be a deterrent.

City Planner McKibben said in the beginning she was concerned because she prefers to take a positive approach and there are a lot of people that were annexed who really don’t realize that they need a permit, but by doing it this way and letting people know that if they had applied for the permit prior to commencing work the fee would have been less, it may help get the word out. She has arranged with the Clerk’s office to have a spot in the City’s quarterly newsletter to get information out as we come into the building season.

PFEIL/LEHNER MOVED THAT THE PLANNING COMMISSION RECOMMEND TO THE CITY COUNCIL THIS AMENDMENT OF THE FEE SCHEDULE HAPPENS.

LEHNER/HESS MOVED TO STRIKE THE SENTENCE “A PERMIT APPLICANT MAY REQUEST A WAIVER OF AN INCREASED FEE ASSESSMENT, FOR GOOD CAUSE, FROM THE HOMER ADVISORY PLANNING COMMISSION.

VOTE: YES: UNANIMOUS CONSENT

Motion carried.

VOTE (Main motion): YES: UNANIMOUS CONSENT

Motion carried.

G. Staff Report PL 05-02 Re: Resolution 04-68 A Resolution Of The City Council Of The City of Homer, Accepting and Acknowledging The 2004 Homer Area Transportation Plan. – Postponed from HAPC meeting of February 2, 2005.

City Planner McKibben brought to the Commissions attention that two pages of the staff report are missing from the packet, but a complete packet was presented as a lay down item.

Chair Chesley recapped that at the last meeting the Commission was trying to come up with the items they could agree with and continue to work on things they couldn’t agree on.

City Planner McKibben said that under other amendments they need to include the incorporation of the couplet drawing.

Commissioner Foster said he did not agree with the drawing because it included the Poopdeck Trail road built in with the couplet drawing.

Commissioner Connor said she will look at ideas for tying in the Non-Motorized Transportation and Trails Plan into the Transportation Plan where it is appropriate.

City Planner McKibben suggested this item as a worksession for the March 2^nd meeting. She asked that the Commissioners send their proposals to her by Wednesday the 23^rd, she can get them in the packet.

LEHNER/KRANICH MOVED TO CONTINUE STAFF REPORT PL05-02 HOMER TRANSPORTATION PLAN TO THE MARCH 2, 2005 WORKSESSION FOR FURTHER DISCUSSION.

VOTE: YES: UNANIMOUS CONSENT

Motion carries.

H. Site Plan Development. Postponed from HAPC meeting of February 2, 2005.

Commissioner Foster reported that the language needed to be clearer regarding development on bluffs and wetlands. In discussions of steep slopes there needs to be focus on sensitive areas, including steep slopes, creeks and streams and shorelines and bluffs. He continued the idea is that not only would a Development Activity Plan (DAP) be required but also a Conditional Use Permit would be required so that the sensitive area development be brought before the Planning Commission for review, incase there are mitigation measures that may be needed.

City Planner McKibben suggested a definition of sensitive areas be included.

Commissioner Foster said the idea is that this would go into the site development requirements for all districts and whether it would require a Conditional Use Permit is up for discussion, but at the very least, anytime there is a DAP, it could go on the Consent Agenda so the Commission could see what it is and pass it automatically or pull it off for discussion if there is concern.

Chair Chesley reminded the Commission that part of this ties into what Commissioner Kranich had suggested earlier that in the absence of a steep slope ordinance, it was important to get something in place ahead of time to kick them into conditional use until they get the steep slope ordinance developed.

Commissioner Lehner commented that she has a hard time thinking of using trails as part of the 10% developable area.

Commissioner Foster commented that individual property owners are building trails along the bluff line and there are concerns because they are cutting into the bluff. Trails have to be constructed correctly to aid in preventing erosion down below. More and more outside the Central Business District along Kachemak Drive more and more people are going to want access to the beach and will be building on the beach and this will just ask for a little more scrutiny; not to say that it can’t be done but lets look at the process of the project.

City Planner McKibben suggested as the Commission should consider the Conditional Use requirement to include the Storm Water Plan as well as the Development Activity Plan.

Chair Chesley suggested that this be scheduled for the March 16 worksession to work on this.

Commissioner Kranich pointed out that this proposal requires a DAP for several different types of land disturbance and would have all of these instances coming before the Planning Commission. If this applies to all zones, anyplace where someone wants to put in a 200 foot drive way, for example, will need a Conditional Use Permit which will increase the Commissions workload because they will have to look at all of them.

I. Staff Report PL 04-109 Re: Commission Work List – Ongoing.

The Commission decided to add a subsection under Community Design Manual for Remodel.

REPORTS

A. Borough Report

Commissioner Foster reported that a couple things came up at the Borough Planning Meeting. One is that a project came before the Planning Commission, which should have gone through the City of Soldotna first. It was a platting action that the developer chose to bypass the City and go directly to the Borough because the City of Soldotna had put forth a moratorium on flag lots and was working on an ordinance to prohibit flag lots. The Borough Planning Commission postponed it and sent it back to the City for review. At the meeting Dr. Foster said that he made the statement that it is disappointing when statements are made by developers that they don’t need to comply with the City requirements because they know it is just a recommendation and it can go to the Borough for final decision. The other item is the Weber Bluff Park Replat, which went through the Homer Advisory Planning Commission (HAPC), the Borough changed the recommendation from HAPC. The Borough changed it so that some kind of turnaround would be made along Cowles Street so an emergency vehicle can turn around, originally it had been proposed as a cul-de-sac. The verbiage that was agreed on was something that was agreeable to the Emergency Services and Public Works, like being able to turn around in a driveway.

Commissioner Foster spoke about the City of Soldotna prohibiting flag lots. Having discussed flag lots with some of the local Realtors who say it is an issue when properties are sold after the original owners, who have worked out some kind of an agreement sharing a driveway, have moved on. He suggested that it is something Homer may want to look at too. He provided a copy of the City of Soldotna’s ordinance for City Planner McKibben to review.

The subdivision section on waterfront access provisions has come up a number of times because of the Borough Planning Commission overriding the wishes of the HAPC on the right-of-way on Kachemak Drive. Commissioner Foster said it was pointed out to him that 20.28.180, Waterfront Access Provision, clearly states that right-of-way which serves to provide access to public water shall not be vacated unless such a right-of-way is wholly impractical to all modes of transport including pedestrian or that use of such right-of-way causes severe harm or damage to adjacent properties which cannot otherwise be corrected and where such continued damage or harm would be contrary to the public interest. The Borough concern was that a trail through that steep slope would very likely damaging impacts to the neighboring properties.

The Borough Assembly Sub-Committee was appointed to look for funding for projects at the Borough level took on the project of Shoreline Erosion Research based on erosion workshop. It is 1 to 1.5 million dollars per year for five years potential Borough wide shoreline erosion.

Commissioner Hess asked if Commissioner Foster, as a Borough Planning Commissioner, can ask the Borough Attorney for an opinion on platting actions and zoning violations, and the appropriateness of turning plats down based on zoning violations. Rather than hearing it from a staff member at the Borough, Commissioner Hess said he would like to get it from the Borough Attorney that way they can determine whether or not it is consistent with what City Attorney Tans is telling the HAPC. If it is inconsistent, then there can be discussion with City Attorney Tans to rectify it.

B. Kachemak Bay Advisory Planning Commission Report

There was no Kachemak Bay Advisory Planning Commission Report.

PLANNING DIRECTOR’S REPORT

City Planner McKibben reported that the City has hired an architect to help the TCDC in illustrating the plans. The TCDC has done a lot of work identifying goals and things they would like to see in the Town Center. The architect will listen to that and look at the physical components of the site and hopefully illustrate some ideas.

INFORMATIONAL MATERIALS

Items listened under this agenda item can be HCC meeting minutes, copies of zoning violation letters, reports and information from other government units.

A. Letter dated February 5, 2005 from Frank Griswold re: Spot Zoning.

B. Zoning violation letter dated February 11, 2005 to D. L. Blackwell, re: Zoning Permit required.

C. Letter dated February 11, 2005 to Michael Hayes re: 111 West Pioneer Avenue, Lot 72-A Kranich Subdivision – Zoning Permit required.

D. Zoning violation letter dated February 11, 2005 to Big Mountain Builders, Inc. re: 642 Waddell Road, Lot 1, Bluff Park Subdivision No. 4 Harmon-Porter Add. – Zoning Permit required.

E. Letter from Gordon Tans dated April 3, 1998 to Mayor Jack Cushing re: Zoning – Legitimate Objectives of Zoning

COMMENTS OF THE AUDIENCE

Members of the audience may address the Commission on any subject. The Chair may prescribe time limits.

There were no comments of the audience.

COMMENTS OF THE COMMISSION

Commissioners may comment on any subject, including requests to staff and requests for excused absence.

Commissioner Pfeil thanked staff for sending out the Planner’s Journal booklets. He thought pictures would be helpful.

Commissioner Foster reported that there is an Oceanography Workshop on February 21 & 22 at the Islands and Ocean Visitor Center. It is bringing in all the recent research about Cook Inlet and Kachemak Bay and finding ways that this information can be more useful. The Floodplain Management Workshop is scheduled for March 31 and April 1 in Seward. There is funding available for one Planning Commissioner and five Homer Staff and the City Council to attend. There is a program online at the Alaska Ocean Observing System (AOOS) website.

Commissioner Foster said he is working on a change for the Rural Residential District lot size because right now RR has a certain purpose, but once it gets sewer and water, lot size can change which changes the purpose. He will be presenting his changes at the next meeting.

Commissioner Kranich complemented everyone on a good meeting.

Commissioner Connor commented that she had listened to the Council Meeting on Monday night and Mr. Stark’s closing comments dismayed and shocked her. He was very disparaging to the Planning Commission and he talked about the Comprehensive plan like it was something developed without input from the Council and the community, like he is immune to using it or following its intentions and directives. She feels like he is abusing his powers as a City leader and she is disappointed in his attitude. Her wish is that he will find a way to be more cooperative and less divisive.

Chair Chesley requested that the Land Allocation Plan meeting with the City Council be added to the next agenda for discussion. He asked if there had been any response from the City Council amending the zoning code and making zoning district changes.

City Planner McKibben said the City Clerk and City Manager are aware of the request but have not acted on it. Ms. McKibben said she will draft a memo, but the Council has not acted on the request.

He commented that the Radio Shack sign on Pioneer that is worth looking into.

Lastly, Chair Chesley commented that he is thrilled with the enthusiasm of the Commission but asked that they not speak out of turn when there is other discussion going on with the Commission. It is very distracting with other side bar conversations going on. He thanked the Commissioners for a good meeting.

ADJOURNMENT

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 11: 30 p.m. The next Regular Meeting is scheduled for March 2, 2005 at 7:00 p.m. in the City Council Chambers. There will be a worksession at 6:00 p.m. prior to the meeting.

MELISSA JACOBSEN, DEPUTY CITY CLERK

Approved:

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[1] Mr. Pickering’s comments related to the minutes of January 19, 2005, which have already been approved and are now a permanent record.

[2] Clerk’s Note: In reviewing past minutes it has been determined that a main motion was not made. This will be resolved at the March 2, 2005 Regular Meeting.

[3] Clerk’s Note: In reviewing past minutes it has been determined that a main motion was not made. This will be resolved at the March 2, 2005 Regular Meeting.