Session 06-02, a Special Meeting of the Homer
Advisory Planning Commission was called to order by Chair Chesley
at
PRESENT: COMMISSIONERS: CHESLEY, CONNOR, FOSTER, HESS, KRANICH, LEHNER,
PFEIL
STAFF: CITY
PLANNER MCKIBBEN
DEPUTY
CITY CLERK JOHNSON
PLANNING
CLERK ROSENCRANS
CITY
MANAGER WREDE
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 w
A. Time
Extension Requests
B. Approval
of City of
C. KPB
Coastal Management Program Reports
D. Commissioner Excused Absences
The agenda was
approved by consensus of the Commission.
COMMISSION BUSINESS
The Commission
hears a report from staff, testimony from applicants and the public. Commission business includes resolutions,
ordinances, zoning issues, requests for reconsideration and other issues as
needed. The Commission may ask
questions of staff, applicants, and the public.
A. Appeal
of a determination by the City of
Chair Chesley
explained the procedure in the appeal hearing.
Rob Lund, appellant, said he has submitted
evidence as is summarized in the packet. His argument is to show the City is
misreading the law. Mr. Lund does not
object to any
City Planner McKibben referenced the letter
from Rick Eckert, Manager of Business Development, of Homer Electric
Association, Inc. (HEA) dated January 11, 2005 that was presented as a laydown.
Additionally, Commissioner Kranich requested
the Planning Commission regular meeting minutes of
Rob Lund, appellant, said he takes exception to
the HEA letter. In the late summer of
2005 when the
Mr. Lund tried to get HEA to stop work on the project
and at the final hour filed an appeal. HEA
agreed with the City’s interpretation of the Code and moved the utility poles
to the west side of the street. The question
is, does the law apply only to new subdivisions or
existing subdivisions? HCC 22.10.040
covers the scope and authority of all subdivisions in the City of
The additional exceptions from placing
utilities underground were cited:
Swampy areas
Frost heaving areas
Abnormal drainage
Unable to obtain
necessary rights-of-ways
Temporary services
Cross unplatted, unrecorded or undeveloped tracts of land
Power lines do not
carry 35 KV or more than 1,000 KV of electricity
Future users of
existing pole lines when the host utility is overhead
Mr. Lund concluded that none of the list of ten
exceptions would apply on
Mr. Lund said HEA did not ask the Planning
Commission for an exception, nor did the Planning Commission review and
recommend a request for an exception and pass it on to the City
Appellant Rob Lund said the evidence from
Chapter 22.10 means that HEA should have relocated the utilities underground or
should have held off until the appeal process was allowed through the Planning
Commission and the City
When asked by Chair Chesley
if there would be other members of the appeal making a presentation Mr. Lund
answered he was the only speaker. Chair Chesley allowed Commissioners to ask questions of Mr. Lund.
When asked by Commissioner Pfeil
about the results of neighbors petitioning the State for underground utilities
prior to the onset of the project, Mr. Lund said there was no outcome. A petition was circulated over the entire
improvement area, signatures obtained, and the petition was sent to DOT
(Department of Transportation). He did
not hear anything back from them.
Commissioner Foster asked who w
Commissioner Hess asked Mr. Lund at what point
of the project was he notified and Mr. Lund answered that he heard three years
ago and at that time there was a public meeting. Rob Lund said Barb Buzzelli
and him talked about underground utilities and circulated the petition. The
problem with the utility poles in the drainage ditch surfaced in May, at the beginning
of the project. Mr. Lund doesn’t know
when HEA or the City became aware of modifications. The State has been surveying the area for 10
to 12 years and it is strange they hadn’t figured out the road was in the wrong
place.
Commissioner Hess commented the Kenai Peninsula
Borough (KPB) subdivision code deals with actions of subdivisions or platting. Unless it is a platting action the regulations
do not apply. The HCC is supplementary
to the KPB code. Mr. Lund stated he
doesn’t know anything about the KPB code and the opinions on legal matters
don’t count for very much. He can only
cite evidence in the HCC. State laws say
State projects have to follow local ordinances and he assumed the local
ordinance was HCC and that the State would have to follow it regardless of what
the KPB said.
Commissioner Kranich
asked Mr. Lund if he had any confirmation of mailing to confirm the content and
time frame the petition was mailed to State Department of Transportation. Mr. Lund replied he has the petition but no
confirmation of sending it as he did not use registered mail. He said the Commission can only take his word
and he would be w
City Manager Wrede st
In rebuttal to Commissioner Hess’s question
about the scope of work, Mr. Wrede is 97% sure the relocation of the utilities was
not anticipated in the construction contract.
He stated Mr. Lund was right that when the road was surveyed it was
realized the center line was in the wrong place and the utilities had to be
moved. As there was no platting or
subdividing, the section of HCC did not apply.
Commissioner Hess commented that there are things
in KPB Code that deal with things other than subdivisions. He questioned if HCC is supplementary to KPB Code,
how do you reach the conclusion that Title 22 only refers to subdivisions? City Planner McKibben read KPB 20.04.110
subdivision code. City Manager Wrede
commented he would be concerned if there was something in KPB Code that
addressed relocation of utilities, but he does not believe KPB 20 talks about
that. He said it was remote that HCC 22
would refer to something other than subdivisions. Utility and road easements, trails and water
and sewer lines may be in HCC 22.
When asked by Commissioner Foster if he had looked
at HEA’s rules and regulations, City Manager Wrede
responded he is taking Mr. Eckert’s statements.
Commissioner Foster commented he has heard all the
utility lines w
Commissioner Pfeil
said he would like to read the attorney’s opinion on the matter. City Manager Wrede said written opinions are
not requested for everything, but if it was the Commission’s wish a written
opinion could be requested from the City Attorney. Commissioner Pfeil
said he has talked to HEA and the State before about underground utilities and came
up with the opinion that the ordinance didn’t pertain. City Manager Wrede said in other past construction
projects it was determined underground utilities only apply to new subdivisions.
Chair Chesley asked
how the underground utility decision was made in the
Commissioner Kranich
said in reading City Manager Wrede’s brief it appears
he believes HCC 22.10.055(b) applies to areas of old subdivisions. Mr. Wrede stated he does not believe that,
but Mr. Lund may. Mr. Wrede said the
Code only applies to new subdivisions and does not apply to existing utility
lines in ROW’s.
There is no question it applies to the three subdivisions recently
approved. Commissioner Kranich asked how there could be existing areas it applied
to if it didn’t apply to a previous subdivision. Mr. Wrede answered he believes the Code talks
about land that is about to be subdivided.
A large parcel may have an existing power line across it and if the
power line has to be moved or upgraded in the course of developing the subdivision,
it would go underground.
Commissioner Kranich
drew an example of plats subdivided at different intervals, beginning in the
1950’s to 2010. He asked City Manager
Wrede if any of the existing utilities on the parcels would have to go
underground. City Manager Wrede answered
they would not and explained the Code is not clear and straight forward. He drew an example of a big tract, an old
homestead with a power line that went across it. The developer that owned the entire parcel
decided he was going to turn it into ninety lots. If in order to develop the subdivision the
power line has to be moved or relocated or substantially upgraded the line must
go underground.
Commissioner Kranich
referred to Mr. Eckert’s letter that stated the ordinance would not be
applicable regardless of its effective date, as the project involved work on
property under the jurisdiction of the State of
Commissioner Lehner commented
that Title 22 talks about applying to new or existing subdivisions. HCC 22.10.051 talks about utility easements
and states each lot of a new subdivision must have access from a fifteen foot
utility easement. She said the
Commission has lots before them that are affected by a CUP or PUD and do not
have a fifteen foot utility easement platted.
The Commission then may recommend that the easement be added. City Planner McKibben clarified HCC 22.10.051
cannot be used to add the easement to a CUP or PUD, but can through a platting
action.
Commissioner Kranich
said HCC 22.10.020 refers to all subdivisions within the City as does HCC
22.10.040. In reading HCC 22.10 in its
entirety there is only one place in HCC 22.10.055(a) that refers to newly
developed subdivisions. Commissioner
Foster pointed out HCC 22.10.051 also refers to new subdivisions and HCC 22.10.020
and HCC 22.10.040 apply to all.
City Manager Wrede said HCC 22.10.030(b)
defines subdivisions as the division of a tract or parcel of land into two or
more lots, etc. As used in the Code it
refers to a subdivision of land or platting actions as defined.
Commissioner Foster asked for City Manager Wrede’s comments on HCC 22.10.030(b), that when appropriate
to the context, the term shall refer to the process of subdividing or to the
land or areas subdivided. He questioned
how that does not apply to an area that was subdivided twenty or fifty years
ago. City Manager Wrede answered it is
referring to a subdivision that is being created. He said it is obvious to him although it may
not be so to everyone.
Commissioner Hess asked City Manager Wrede if
Commissioner Lehner
remarked the proceedings were a legal discussion of how to interpret language
and she felt it was unfair for the City Manager to be placed in that position. She said first you look at the four corners
of the document, and if it makes sense as read.
It one inherently makes sense as read and another sense as interpreted
by others. City Manager Wrede commented
that if HCC 22 is read in context it makes sense.
Chair Chesley told
Commissioner Lehner she shouldn’t feel sorry for the
City Manager in having to make the decisions, as he is the senior most planning
official for the City and that is what he is empowered to do. He has access to the City Attorney for backup
if needed. Mr. Chesley
relayed that City Manager Wrede said he has talked with the City Attorney multiple
times and is comfortable with the decision.
He added that a written opinion can be requested from the City Attorney
if the Commission desires it.
Commissioner Connor questioned if there was any
way to resolve the issue to make everyone happy. City Manager Wrede said a LID (Local
Improvement District) could be formed and property owners could pay to put the
utility lines underground. HEA said
their tariff and rules w
Commissioner Pfeil
questioned the cost of putting the utilities underground and the cost of moving
the utilities to the other side of
Commissioner Kranich
said HCC 22.10.030(b) refers to the process of subdividing, “to the land or
areas subdivided” and he interprets it as pieces of land rather than a drawing
on paper. He asked if the areas
previously split in small lots mean subdivision. City Manager Wrede answered it would not apply
to old existing subdivisions.
Commissioner Foster commented he would like to see
what the founding intent was. He said
Commissioner Kranich was at the meeting in 1987 when
the ordinance was adopted.[3] He asked what as-builts
referred to. Chair Chesley
said as-builts refer to things that have already been
constructed and it is the survey document that defines what was actually
constructed.
Commissioner Hess asked if administration has asked
all remaining members of the underground utilities committee the intention of
the Code. City Manager Wrede responded
that the list of committee members was provided to the Planning Commission for
them to talk to them, and he himself has not asked everyone on the list.
Chair Chesley said
the Commission has the appeal record and the parties have had the opportunity
to prepare and submit documentation. The
Commission cannot go on a fishing expedition to request supplemental documents
unless there is compelling reason to do so.
He stated if the Commission makes a decision that could have been
clarified by a document filed by each side, it is their good or
Commissioner Kranich
said a legal opinion from the City Attorney would be the finding authority on
the Code and would be vital. He said if
the Commission rules in favor of the appellant the administration may appeal to
City Manager Wrede stated he agrees with Chair Chesley. Mr. Lund
and him spoke earlier and thought they were doing the Commission a favor by not
involving any attorneys. Chair Chesley said it would have been beneficial for the City
Attorney to be present and he would expect he would say the Code is not clear. Mr. Chesley surmises
the City Attorney would say what is closely represented by Mr. Wrede as the City
Manager has formed his opinions based on his discussions with City Attorney
Tans.
City Manager Wrede said Attorney Tans often
repeats that he is uncomfortable with determinations or interpretations of the Code
by the Commission. Making determinations
or interpretations of the Code is the job of the City administration, Planning
Commission and the City
Commissioner Foster asked if he can request two
documents that Mr. Eckert cited in his letter.
Mr. Foster said he did hear the City Manager say if Attorney Tan’s
opinion was incorrect the City would have to pay. He said the City Manager said he trusted Rick
Eckert’s comments. City Manager Wrede
responded that he would assume Rick Eckert’s assessment is correct although he
hasn’t researched it. He said Mr.
Eckert’s position seems to be if his decision is reversed the appeal may wind
up in court and it would be the City’s responsibility to pay for it. There have been many projects since 1987
where overhead utilities have been relocated or upgraded and the City said
nothing. The implications of an overturn
are huge and HEA would have m
Chair Chesley called
for a recess at
Rebuttal: Rob Lund
Mr. Lund said Title 22 is not all about
subdivisions. It is about utilities and
what to do with them when they are moved and relocated. Part of the City’s justification of
interpretation of the law is tradition; that is the way they have been doing
things. There are a lot of opinions vs.
opinions, but the only evidence is in the statements in Title 22. It is not fair to say the appellants are taking
the title out of context by referring to HCC 22.10.055(b), as the main point of
the argument are the two paragraphs at the beginning that say the chapter governs
all subdivisions within the City of Homer.
Mr. Lund agrees with the Planning Commission when they talk about
subdivisions they are talking about dirt and real estate, not pieces of
paper. One controversy is how to interpret
the reference to existing overhead cable facilities when they might have said
existing subdivisions. Mr. Lund thinks
Title 22 deals with all subdivisions, new and existing, but the question is what
to do with existing utility lines. When
a parcel with an existing utility line in good shape is subdivided it is grandfathered
in, and doesn’t have to follow (a). It
can be left there until it needs to be improved or relocated. Then the same
rules that have to be followed when any above ground utilities are improved or
relocated must be followed.
Rob Lund said as to the question of the m
Rebuttal:
City Manager Wrede said it would be nice to
have the evidence from the drafters of the ordinance that they meant new
subdivisions are taken care of and any existing overhead power lines if moved,
relocated, altered or upgraded need to go underground. There is little evidence. History does matter and there is legal
precedent. When you make interpretations
you try to be consistent, unless you find out your interpretation is wrong. The HCC section has been in place since 1987
with many power lines relocated and replaced.
It would seem controversy would have risen on many occasions if it was
the
Chair Chesley asked
for public comments, limiting each speaker to five minutes.
Dr. W
Larry Slone said the City’s argument is that
there is a traditional basis, a customary basis for not applying HCC 22.10.055(a)
to all subdivisions, but only new subdivisions.
There is no historical record of the decisions. It may have been a casual situation where the
affected land owner phoned his commissioner and asked if it applied to him, and
the commissioner’s own interpretation was given. There is no record of anyone taking a case
like this to appeal. The argument that HCC
22.10.055(b) doesn’t apply to existing subdivisions is not a very strong
argument. The strongest argument against
it is with Mr. Lund actually bringing a case to appeal. The process is important and Mr. Slone would
like to see it complied with.
The public hearing was closed.
Chair Chesley asked
for a statement from the Planning Department or Clerk’s office that the
advertising and public notice requirements were met. City Planner McKibben said notice of appeal
was sent to 50 property owners of 63 parcels and four additional parties of
appeal that were not landowners were sent notices on December 21, 2005. It was property noticed in the newspaper.
Chair Chesley asked
for a motion to bring the appeal packet into evidence.
HESS/KRANICH – MOVED TO BRING THE APPEAL PACKET
AS EXHIBIT A INTO EVIDENCE.
Commissioner Kranich
noted that the appeal from Mr. Lund is not time or date stamped. City Planner McKibben pointed out in City
Manager Wrede’s memo to the Planning Commission it
states the appeal was received in the City Manager’s office on
VOTE:
(exhibit a) YES. FOSTER, CONNOR,
PFEIL, CHESLEY, LEHNER, KRANICH, HESS
Motion carried.
HESS/LEHNER – MOVED TO ACCEPT LAYDOWN FROM HEA
AS EXHIBIT B FOR THE RECORD.
There was no discussion.
VOTE:
(exhibit b) YES. CHESLEY, PFEIL, CONNOR, LEHNER, KRANICH,
HESS, FOSTER
Motion carried.
LEHNER/PFEIL – MOVED TO ACCEPT AS EXHIBIT C
LAYDOWN LETTER FROM DR. MARLEY.
There was no discussion.
VOTE: (exhibit c) YES.
PFEIL, CONNOR, HESS, KRANICH, FOSTER, CHESLEY, LEHNER
Motion carried.
KRANICH/PFEIL – MOVED TO ACCEPT THE MINUTES OF
Commissioner Kranich
asked for a complete copy of the minutes of
VOTE:
(exhibit d) YES. CONNOR, LEHNER, KRANICH, HESS, CHESLEY,
FOSTER, PFEIL
Motion carried.
Chair Chesley said
Commissioner Foster asked for the code citations referenced by Rick Eckert of
HEA in his letter. Chair Chesley asked City Manager Wrede if there are statutes that
are part of the public domain would they need to be added to the record. Mr. Wrede said accepting the letter would be
sufficient.
There were no closing arguments from either
party.
Chair Chesley asked
for a motion to adjourn the public meeting and move into executive
session. He stated the Commission most
likely w
PFEIL/HESS – MOVED TO ADJOURN TO DELIBERATE IN
EXECUTIVE SESSION.
There was no discussion.
VOTE:
YES. LEHNER, HESS, FOSTER,
CHESLEY, CONNOR, PFEIL, KRANICH
Motion carried.
The Commission discussed a schedule to meet
with the City
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.
COMMENTS OF THE COMMISSION
Commissioners
may comment on any subject, including requests to staff and requests for
excused absence.
There were no comments.
ADJOURNMENT
Notice of the
next regular or special meeting or work session w
There being no further business to come before the Commission the meeting
was adjourned at
___________________________________
JO JOHNSON, DEPUTY CITY CLERK
Approved: __________________________