Session 05-12, a Regular Meeting of the Homer Advisory Planning Commission was called to order at 7:05 p.m. on June 15, 2005 by Chair Chesley at the Homer City Hall Council Chambers located at 491 E. Pioneer Avenue, Homer, Alaska.
PRESENT: COMMISSIONERS CHESLEY, FOSTER, PFEIL, HESS, LEHNER, CONNOR, KRANICH
STAFF: CITY PLANNER MCKIBBEN
DEPUTY CITY CLERK JACOBSEN
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
The agenda was amended to add item B Conflict of Interest under Public Comment and Presentation, item F. Interpretation of Code for the Rural Residential District and item G. Expanding Development Activity Plan and Storm Water Plan in All Districts under Commission Business. The amended agenda was approved by consensus of the Commission.
Commission
approves minutes with any amendments
A. Approval of June 1, 2005 Regular Meeting Minutes
The amended minutes were approved by consensus of the Commission.
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.
A. Informational
Presentation by the US Army Corps of Engineers regarding wetland mapping
Lisa Gibson and Skip Joy from the Army Corp of Engineers (COE) were in attendance. Ms. Gibson’s presentation gave a brief overview of the permitting process from the beginning in 1899 through the current Clean Water Act. It began with Section 10 of the Rivers and Harbors Act of 1899 and its requirement of a permit for any work that effects the course condition, location or capacity of navigable water in the US. In 1972 section 404 of the Clean Water Act was established. It requires a permit for the discharge of dredged or fill material into waters of the US, including navigable water or tributary to navigable water or wetlands adjacent to navigable water, lakes, river, etc. Ms. Gibson showed a map of their jurisdiction and stated it is different in tidal waters and fresh waters. In tidal water their jurisdiction, under section 10, is the mean high water mark and under 404 for any fill it is the high tide line as well as any adjacent wetlands. In fresh water under section 10 it is the ordinary high water mark and under section 404 it is the ordinary high water mark as well as any adjacent wetlands. Anyone should contact the COE if they are considering any work in a section 10, navigable water or if it involves section 404 of the Clean Water Act. She offered examples of some projects that the COE would and would not have jurisdiction over.
Ms. Gibson stated that the COE is the only agency that can tell people whether or not there are wetlands on a property. She commented about the new maps that are of concern to people. The maps are preliminary and are being used as tools. People should call the COE with any questions about wetlands on their property.
Ms. Gibson discussed the form for the request for jurisdictional determination. If the project requires a permit it is recommended that a pre-application meeting be done and it can be set up with the COE and any other agency that may be involved. She reviewed the permit form stating that the type of permit needed depends on the type of projects. She reviewed some different types of projects.
Ms. Gibson reviewed Homer’s general permitting authority within the City limits, which allows minor fill in low value wetlands that were mapped in the 1989 mapping and it only applies to the City of Homer boundaries at that time and nothing outside of it. If the project could not be permitted by the City of Homer’s general permit, then the COE would have to be contacted before development could occur. She pointed out that a lot of Homer’s wetlands are not mapped but just because it is not mapped, doesn’t mean that it does not exist. Always check with the COE if there is any question. There has to be a permit to develop.
At the request of City Planner McKibben, Ms. Gibson explained the process of getting a jurisdictional determination. The request form must be filled out and the COE will look at the office material that is available which could include maps, surveys and etc. A field investigation may be needed which includes digging holes to look for hydrology on the site. It is not difficult and they have to respond with in 30 days.
Commissioner Lehner asked how the new maps are being incorporated into the process. Ms. Gibson replied that the new and old maps are being used as tools. Ms. Gibson stated that if there is a question that there could be wetlands on a property, contact the COE. A site visit may be needed.
City Planner McKibben clarified that the wetlands mapping that is being done inside Homer City Limits and the Bridge Creek Watershed Protection District is being paid for by an EPA grant that the City received.
Commissioner Hess asked how the new maps effect projects that a person has a permit for based on the old maps. Ms. Gibson reiterated that the new maps are not complete and for the general permit they are still using the old maps. If the project has been permitted is in low value wet land it is still considered a low value wetland and they can go back to the City to ask for a permit to do the project.
Commissioner Connor asked if the differences between low and high value wetlands could be outlined. Mr. Joy replied that one serves a higher function. He offered the example that if there were a slope area that had hydric soil and hydrophytic vegetation, but doesn’t support a habitat or a species of national interest, like salmon, and doesn’t serve as a major filtration system, it would be a considered low value.
Commissioner Foster asked about general permits or letters of permission. Ms. Gibson replied that the Alaska District does not issue letters of permission. The general permits are good for five years, after that they can be renewed or revoked. They go through a 30-day pubic interest review and since the permit goes through the public involvement and gets determined that impacts are minor the general permits will not go through a public meeting.
A member of the audience commented he heard that the COE was moving away from determining and categorizing high and low value wetlands on the map. Mr. Joy stated that the new maps are a work in progress and although habitat values have not been assigned, they will be. City Planner McKibben added that a consultant for the City is doing the new maps with grant money from the EPA as part of a larger project. Currently there is a group that is working to assign functions to the wetlands and there will be a public process to assign values to those. Eventually there will be best management practices about how they can be developed. It is a multi-year grant that is funded through 2007.
Commissioner Hess stated that he had done research on the section of the Code that relates to conflict of interest. He cited HCC 1.12.040 which states “The Mayor or, in his absence, the Mayor Pro-Tem or other presiding officer, shall rule on a request by a City Councilmember to be excused from voting on a matter because of a declared conflict of interest. The Mayor Pro-tem or other presiding officer shall rule on a request by the Mayor to be excused from participating in a matter because of a declared conflict of interest.” Mr. Hess further cited HCC 1.12.010 (g) “"City official" means a person who holds elective office under the ordinances of the City, or who is a member of a board or commission whose appointment is subject to confirmation by the City Council.” Mr. Hess expressed his belief that this would apply to the Commission.
Chair Chesley clarified that the Chair would make the ruling. Commissioner Hess commented that it is something they should check with the Clerk’s office about. It has been the understanding that a motion is made on conflict of interest and the Commission votes on it. He stated he is unclear about how that procedure works. City Planner McKibben pointed out that their Policy and Procedures Manual sets out how they declare conflict of interest as well, so perhaps more research needs to be done.
Commissioner Hess continued that conflict of interest is basically mandated by state statute and the statute requires municipalities have conflict of interest regulations in their ordinances. Mr. Hess commented that in state statutes it is subject to financial reporting, which can be exempted by a vote. The City’s regulation does not require financial reporting and Mr. Hess stated he was going to look into that further, but normally they would have to fill out yearly financial interest statements. Mr. Hess referred the Alaska Planning Commission Handbook information regarding appearance of fairness, which states:
A discussion of conflicts of interest often includes consideration of the appearance of fairness doctrine. Simply stated, the doctrine requires that not only must hearings be fair, there must not even be an appearance of unfairness; even if no actual unfairness exists, the mere appearance of unfairness must be avoided. The application of their doctrine improves the appearance of the integrity of the commission and its decisions. However, its application often makes the concept of “substantial financial interest” irrelevant because it can require abstention when there is no financial interest at all.
Commissioner Hess commented based on this information that there doesn’t even have to be a financial element to whether their is a conflict of interest or not. He wanted to point out that the Homer City Code standard is not the only one they should be applying.
RECONSIDERATION
A. Bidarka
Heights Shadley Addition Subdivision Preliminary Plat
Chair Chesley advised the Commission that they were not discussing anything related to the preliminary plat.
HESS/KRANICH MOVED TO RECONSIDER ITEM A BIDARKA HEIGHTS.
There was no discussion.
VOTE: YES: FOSTER, CONNOR, PFEIL, CHESLEY, LEHNER, KRANICH, HESS
Motion carried.
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 05-65
Re: Request For A
Conditional Use Permit, CUP #05-11, Foster/Harness, For Approval Of A Reduction
In The Setback From A Dedicated Right Of Way As Permitted By HCC 21.48.040
(B)(4) And A Reduction In The Number Of Required Parking Spaces In HCC 7.12.020
At 459 Klondike Avenue, Lot 1, Block 8, 9 And 10, Glacier View Subdivision No.
2.
Commissioner Foster stated that he has a conflict of interest. Chair Chesley expressed that he would follow
the code as referenced previously by Commissioner Hess. There was discussion as to whether it was in
agreement with the Policy and Procedures Manual. Chair Chesley and City Planner McKibben made the determination
that Homer City Code takes precedence.
Chair Chesley stated his agreement that Commissioner Foster has a
conflict of interest and invited the Commissioners to make a motion if they
disagreed with his decision. No
disagreement was expressed.
Commissioner Foster left the table.
In reading the title Chair Chesley noted that the
Reduction In The Number Of Required Parking Spaces In HCC 7.12.020 At 459
Klondike Avenue, Lot 1, Block 8, 9 And 10, Glacier View Subdivision No. 2, no
longer applies as noted in the staff report.
City Planner McKibben made comment to the staff
report. She stated that findings were
made in support of the reduction of the 20 foot set back from rights of way and
recommend that the Commission approve the conditional use request with the
following conditions:
1.
The applicant will install
outdoor lighting that complies with the Community Design Manual and HCC
21.48.080.
2.
The project will meet all other
applicable local, state and federal requirements.
Dottie Harness, owner and applicant, pointed out one change since the
submission to the Planning Department.
There is a four-foot stairway rather than a covered walkway on the north
side in the 20-foot setback on Klondike.
She pointed out on the site plan that on north side along Klondike
indicates a stairway to the second level, the first level is designed for
handicap access.
Rick Foster, owner, applicant and owner of the adjacent lot, commented
that the second story is designed to have an elevator to make it handicap
accessible as well.
Commissioner Connor asked for clarification about the change. Ms. Harness commented that originally there
was a four-foot covered walkway and now there is a four-foot stairway and
covered walkway along Klondike and Lucky Shot.
City Planner McKibben stated that it would be 14 feet from the
right-of-way. She continued that City
Code allows the uncovered porch to extend into the setback but adding the roof
for handicap access requires the application for the CUP. The applicants have said they are going to
locate stairs under the covered way as well as the walkway.
There was discussion that City Code allows a two-foot eave extension into
the setback with out it being considered an encroachment.
Dr. Foster commented that the reason for the parking was for landscaping
and not to have parking in front of the view area.
Frank Griswold, City resident, commented that he does not agree that the
Code allows building a porch in a setback.
He believes the section they are referring to has to do with yard
requirements. A porch or deck can be
built into the portion of the property that makes up a minimum yard
requirement, but it doesn’t state anywhere that any structure can be built into
a setback. He believes the stairway may
require an additional public notice.
Mr. Griswold continued that the section of Code that allows this, HCC
21.48.040(b)(4) was surreptitiously enacted last year and was incorporated in
the 80 some pages of large retail and wholesale code changes. It did not have its own public hearing and
not a lot of people heard about it. It
allows the Commission to grant a de-facto setback variance in cases where
granting a regular setback variance would not be legal. This was proposed shortly after a setback
variance was denied for a property owner along Pioneer Avenue; after 30 years
of requiring everyone in the City to honor setbacks now those “in the know” can
get special treatment. HCC
21.48.040(b)(4) is in direct conflict with HCC 11.08.110, which states in
relevant part “There shall be a
minimum twenty foot building setback required which shall apply to any property
line abutting any dedicated road or street right-of-way.”
Approval of this CUP would either create an immediate zoning violation or be void under the terms of HCC 21.30.060 which states “No permit may be issued under the Homer Zoning Ordinance unless all structures on and uses of the property conform to the Homer Zoning Ordinance, regulations, and any previously issued permits that are applicable to the property and remain in effect. Any permit issued in violation of this section is void.” Furthermore, HCC 21.42.070 provides that if a CUP or additional permit is required it must be obtained prior to the issuance of the zoning permit and in this case the zoning permit was issued two months ago. HCC 21.42.030(c) provides that no City Official has the authority to grant a waiver, variance, deviation from a zoning permit unless the authority to do so is expressly contained therein. The applicant’s zoning permit says nothing about any setback waiver or the authority granting it. Mr. Griswold stated his belief that the zoning permit itself may be void. HCC 21.42.030 states the Planning Director will review the application to determine compliance with City Code. If it meets the requirements the Planning Director will issue a written zoning permit. There is no indication that the Planning Director reviewed this application. The parking plan and absence of a driveway permit certainly does not comply with code and the Planning Director did not issue the permit, Planning Technician Eggertsen-Goff did. HCC 21.42.020(b)(5) states that a zoning permit application must show driveways and off street parking spaces. HCC 7.12.040(a) states that for a single family and multi-family dwelling that the parking facility shall be located on the same lot as the building they are required to serve. HCC 7.12.030(g) states that for a tri-plex, ingress and egress must be made possible by forward motion and turn around areas are required. The areas proposed for the covered walkway could be necessary for the required parking spaces and the turn around area that is not in the current plan.
Mr. Griswold further commented that in the minutes of the June 1st Planning Meeting regarding CUP 05-10 now states, “Commissioner Foster said the reasoning behind the CUP process is to produce a friendly pedestrian environment in the Central Business District and the walkway in the set back does just that.” If placing private walkways in setbacks produce such a friendly pedestrian environment then why did so many of the neighbors oppose that application and if a five foot encroachment in the setback produces a friendlier pedestrian environment, would a 10-foot encroachment make an even friendlier pedestrian environment? If this particular type of CUP produces a friendly pedestrian environment in Glacierview Subdivision and along Pioneer Avenue, then why not simply get rid of all of the setbacks throughout the City. At some point one has to consider why the setbacks were imposed even before land use laws were put into effect in the City and how it can possibly be in the public’s best interest to waive them in a case-by-case basis. What is next? CUP waivers for height restrictions, building size and parking space requirements? The application and staff reports are total snow jobs. The applicant maintains on page 33 of the packet that putting a covered walkway in the set back will:
1.
Further
the mixture of residential and commercial uses within the CBD.
2.
Improve
the attractiveness and usability of the business core to encourage use of the
area.
3.
Attract
private investment into vacant buildings and land in the business/commercial
core while maintaining and enhancing the many positive natural features of the
area.
4.
Improve
pedestrian safety since the covered pedestrian walkways will promote a safe,
attractive and easily accessible path.
Mr. Griswold said he would be embarrassed to present these
arguments. How in the world is a
walkway in a setback going to do all of these wonderful things. Are people going to flock to Klondike Avenue
to see and use it? Wouldn’t a walkway
outside of the setback be just as beneficial or even more so? When the Comprehensive Plan discusses
pedestrian safety it is referring to areas used by the general public not by
private pedestrian walkways.
Maintaining the current 20-foot setbacks would be more likely to promote
pedestrian safety than reducing them, note that both Klondike and Lucky Shot
are substandard in right-of-way width.
They should be sixty feet but they are only forty feet wide and fifty
feet wide respectively. This is a high
traffic area where drivers often speed and run stop signs. Several years ago Mr. Griswold saw a young
boy get knocked down into the ditch, right at this intersection, by the driver
of a Jeep Cherokee who was trying to out race her brother. The Jeep wound up in the ditch as well, the
young boy got his foot run over. Even
if the sight triangle minimums are met, building into the setbacks will reduce
visibility and reaction time for both drivers and pedestrians. What are you going to do require a see
through roof on the walkway as one of the conditions? On page 33 of the packet under 7a. and 7b. the applicants discuss
HCC 21.60.220 and yard requirements. A
waiver from yard requirements is not the same as a waiver from setback
requirements. One could construct an
unroofed landing into required yard space without a CUP. On page 28 it says consideration was given
to the harmful effect upon desirable neighborhood character but the potential
harmful effects were never identified.
Staff made a finding that the addition of a multi-family residence will
not add a significant amount of traffic to the neighborhood, but the
multi-family residence is not the issue here, it is the walkway in the set
back. Staff found “The allowance of a
covered walkway within the usual 20-foot setback will enhance the site for
future residence of the tri-plex.” So
what. Zoning for the benefit of private
interest is totally violative of basic zoning principles. The Commission should make its own findings
and consider the benefits and detriments to the Community as a whole. Also on page 28 the applicants state that
this CUP meets objective 3.2 of the Comprehensive Plan but they don’t say
how. They simply say, “The covered
pedestrian walkway will promote a safe, attractive and easily accessible
path.” How can a walkway promote a
path? Staff found objective 3 of the
Comprehensive Plan is to “Promote a safe, attractive and easily accessible
business/commercial core for pedestrian and vehicular visitors and
residents.” Staff also found that
bringing the covered porch or pedestrian walkway closer to the rights-of-way
can be considered as improving pedestrian access. Promoting pedestrian access to the City’s commercial core and
providing pedestrian access to a private residence are completely different
concepts. Bringing the porch closer to
the right-of-way does nothing to promote pedestrian safety or improve access to
the City’s commercial core for pedestrian or vehicular visitors or
residents. On page 27 staff made a
finding that the use is consistent with the purpose of the zoning code as it
complies with a conditionally permitted use per HCC 21.48.040(b)(4). This is faulty circular reasoning. It is consistent because it complies with a
conditionally permitted use and because it complies it should be
permitted. Just because a use is listed
as a conditionally approvable use does not mean it is consistent with the
purpose of the zoning district.
Conditional use applications can and have been denied even though the
proposed use qualified for consideration and review. HCC 21.61.010 states in part “Nothing herein shall be construed
to require the granting of a CUP. Staff
found that covered walkways surrounding the structure are consistent with HCC
21.48.010(b) Buildings and other structures with in the district should be
compatible with one another and the surrounding area. But once again the covered walkway around the building is not the
issue, it is the covered walkway in the set back. Except for CUP 05-10, which was approved last time, there is no
other building or structure located within the 20-foot setback in the
surrounding area. The encroaching
structure was removed last year at 495 Klondike Avenue last year pre-requisite
to the granting of a zoning permit for that shop. If setback violations promote public safety, then why wasn’t that
violation permitted by CUP? In this
case if the property had simply placed the main structure five feet west and
five feet south this covered walk way would be no issue at all. For the reasons stated above, this CUP
should be denied. Mr. Griswold asked
City Planner McKibben what was the public purpose for having a 20-foot building
setback in the first place and why after 30 years is that public purpose now
invalid or less valid.
Chair Chesley answered that there was a case brought before the
Commission for a variance into the setback along Pioneer Avenue. That is what generated the interest around
trying to bring the Code into compliance with the Comprehensive Plan, which
states it is desired, particularly in the CBD, that it be a pedestrian friendly
corridor. They wanted to front businesses,
particularly along Pioneer Avenue, closer to the sidewalks to move parking
along side buildings or behind buildings.
This way, Pioneer Avenue would more resemble the short stretch where
Ptarmigan Arts and Fireweed Gallery are, versus across the street where Radio
Shack is. Their parking lot has people
accessing it across the sidewalk. Chair
Chesley pointed out it applies to the whole district.
City Planner McKibben answered that she could not speak to what the
original public purpose was, but said that many communities have different setbacks
and 20 feet is common, especially in residential areas. Many communities have less than 20 feet in
business districts for the purpose Mr. Chesley mentioned. Ms. McKibben stated that she is not aware of
communities allowing changes of a setback on a case-by-case basis, but City
Attorney Tans reviewed this proposal and did not find a problem with it.
Chair Chesley asked Mr. Griswold for a copy of his letter for the
record. Mr. Griswold replied that it
was just his notes and did not provide a copy.
Jerry Anderson offered that 20-foot building setbacks came from the first
original Kenai Peninsula Borough platting ordinance, which required a 20-foot
building setback on corner lots only.
It was to provide for adequate sight distance for intersections. That was the only reason. When the ordinance was re-written in 1979
the words “corner lots” got dropped.
When the City of Homer enacted their first zoning ordinance, which was
some time after that, they adopted the 20-foot building setback. Since cities vary their setbacks from time
to time, the Borough platting authority no longer requires a statement on
20-foot building setbacks, however they do require a statement outside the City
that says there is a 20-foot setback unless the appropriate Commission does it
differently. Mr. Anderson added that if
the Public Works Director has looked at the proposal and determined that there
is not a problem with sight distance, than they should do it.
HESS/PFEIL MOVED TO ACCEPT STAFF REPORT PL05-65 WITH FINDINGS AND
RECOMMENDATIONS.
Staff recommends approval of the conditional use
permit with the following conditions:
It was confirmed that the building complies with the setbacks, a zoning
permit was issued and construction has begun.
They won’t build the covered porch without the CUP.
Chair Chesley questioned whether staff and the City Manager had drafted a
document regarding other Planning Staff being allowed to sign in lieu of the
City Planner on permits. City Planner
McKibben said there has been discussion but there is not a delegation of
authority form, the Department continues to operate under the standard practice
that there is an assumption of delegation of authority. She has not discussed it with the City
Attorney, only the City Manager.
There was discussion with the applicant regarding the walkway. Dr. Foster clarified that the walkway was
going to be at or near the first floor level and the coverage would be at the
eave level of the first story. The plan
is to look similar to the Two Sisters Bakery or the Bunnell Project. The intent is that in the future the
walkways can be tied together with other businesses. He explained that he is building the structure for his elderly
mother and two of her friends to live.
In the future the intent will be to re-apply and make the lower level
commercial and have living space upstairs.
The walkways will be boardwalks that can be picked up and moved if
needed.
Chair Chesley made the recommendation to the Commission that prior to
taking final action, the Planning Director have the opportunity to review the
Code citations that were mentioned in the public testimony and address the
signature authority.
HESS/KRANICH MOVED TO POSTPONE ACTION ON THIS ITEM UNTIL SUCH TIME AS WE
GET CLARIFICATION ON THE PUBLIC TESTIMONY CODE ISSUES.
City Planner McKibben reminded the Commission that they have 45 days from
the close of the hearing to act otherwise the application is considered
approved.
VOTE: YES: UNANIMOUS CONSENT.
Motion carried.
Commissioner Foster returned to the table.
B. Staff
Report PL 05-66 Re: An Ordinance Of The City Council Of The
City Of Homer, Alaska, Amending The Homer City Zoning Map To Rezone Portions Of
The Rural Residential Zoning District (RR) And Portions Of The Urban
Residential District (UR) Fronting On The Sterling Highway From West Hill Road
To The Lot West Of The Best Western Bidarka Inn To Central Business Zoning
District (CBD).
City Planner McKibben summarized the staff report and pointed out the staff recommendation that the Planning Commission not recommend approval of the applicant’s request for a zoning district change (Draft Ordinance 05- ) and adopt findings supporting this. However, should the Commission decide to recommend approval of the proposed rezone, findings supporting this are also required. The reason staff recommends this not be approved is the statement in the 1999 Comprehensive Plan that speaks to encouraging infilling of areas planned and zoned Central Business District prior to contemplating enlarging the district. She directed the Commission to the laydowns that are comments regarding the rezone. There is additional information from Dr. Marley including correspondence he mailed to property owners within the proposed re-zone and she received a call from Gary Hinkle, a property owner in the area, stating that he is in support of the re-zone.
City Planner McKibben clarified that more than 50% of the property owners
within the proposed re-zone submitted favorable responses to the Planning
office. She said the Planning
Department sent notices to all property owners in the area proposed to be
re-zoned as well as property owners within 300 feet of the re-zone.
Bill Marley, applicant, handed out notes to the Commission. He advised the Commission that Judy Mullikin
of the Episcopal Church submitted information that they are in favor as
well. Dr. Marley commented that the
1999 Comprehensive Plan is out of date, especially with annexation and it
stated that the CBD should be encouraged to be filled but doesn’t mandate that
it be done before more CBD is created.
Dr. Marley read his letter to the Commission into the record. His main points were:
ü Rural Residential and Urban Residential
zoning are no longer appropriate for these properties.
ü Nearly all lots are most suitable for
commercial type structures.
ü Most of the properties have view and ocean
front that could be developed by tourism, lodging and restaurant industries and
could allow sharing of the uniqueness of these properties with residents of the
local area as well.
ü Traffic flow would be spread out rather than
being concentrated in one specific area.
ü Commercial Properties contribute more to the
tax base.
ü Another focal point of commercial activity
could allow for relief of the over concentration on the spit in the summer
time.
ü Should another 1964 earthquake or a tsunami
occur, with the base of economic activity on the spit, it would be nice to have
some remaining focal point of economic activity.
ü About ½ of the properties proposed to be
re-zoned have road access and beach access but are high enough to be out of the
tsunami zone.
ü If this is not approved, where and when will
more developable CBD land be made available?
ü This
would be an extension of the already Sterling Highway CBD area.
In reference to Dr. Marley’s comments regarding earthquakes and tsunamis,
Commissioner Foster asked if he had seen the shoreline change project that was
done for the City by the Research Reserve.
Dr. Marley said he had seen the study and commented that the erosion
rate on about 8/10ths of the lots he owns and co-owns is quite controlled. Mark Kinney of the Soil Conservation
District[1]
walked the area not long ago and was impressed with how stable it was. There is a point along West Hill has the
highest rate of erosion of the land they have.
Dr. Marley attended a tsunami training recently and learned that it is
only about six times a year that the tide is high enough to lap at the bottom
of the bluff. Mr. Kinney had pointed
out that a lot of the erosion in that area is caused by the wind rather than
the water and in a number of areas there, vegetation would help preserve the
bluff. Commissioner Foster pointed out
that the study done by the Research Reserve the predicted model for 50 years
shows the entire area from West Hill, including the Sterling Highway will be
gone. Dr. Marley disagreed.
Dr. Marley’s lots were pointed out on the map for clarification.
Commissioner Hess asked for clarification on Dr. Marley’s letters. Dr. Marley replied that he is interested in
being a part of something that someday he can say he is proud of and is an
enhancement of Homer. He would like to
see the area be an entry into Homer that is complementary to the
Community. Initially when he sent out
letters to the property owners, his emphasis was tourism. Mr. Hinkle contacted him and said he was
uncomfortable with the idea because his lot is on the north side of the road
and having to utilize his land for tourism did not work very well. Dr. Marley shared his point of view and sent
the second letter to give them the opportunity to express otherwise. Dr. Marley stated he does not have any
immediate plans for his properties. The
attractive thing is if people are interested in developing the land, it is
important for them to know what the zoning will be from the beginning rather
than purchasing it and developing with an unknown.
Commissioner Foster asked if Dr. Marley would be supportive of a CBD with
some sort of overlay restricting heights of the buildings so the views would
still be available. Dr. Marley replied
he would be willing to consider that, but pointed out that before the day of
the spruce bark beetle, there was no view there, it was beautiful stands of
timber. The City has a requirement of
35 feet, so it wouldn’t be any higher than that.
Commissioner Lehner asked if Dr. Marley had looked at the flexibility of
a Planned Unit Development (PUD) process, where up to 40% of the land can be
used for the purposes that would ordinarily not be permitted in that zoning
district. Dr. Marley replied only
vaguely and added ideas have been presented about CUP’s also. It becomes like having a permanent case of
the measles, you wind up with development that would be very spotty. Ms. Lehner commented about neo-traditional
neighborhood planning approaches that are becoming popular in the lower 48
where commercial and residential integrated to promote walk ability. Given the
current zoning and tools allowed in the Ordinance there are a lot of
commercially viable things that could be explored. Dr. Marley agrees with Commissioner Lehner but an entrepreneur
looking at the land has to look at the possibilities of going through the
planning and zoning process, what would offer the best flexibility.
Frank Griswold commented regarding a letter from the City Attorney from
2003. In the letter City Attorney Tans
says that a re-zone application should ask questions like:
ü How is this rezoning consistent with the
purposes of the Homer Comprehensive Plan.
In answering provide references to specific provisions of the
Comprehensive Plan.
ü Describe the public purposes served by this
re-zoning.
ü Describe the benefits and detriments of this
proposed re-zoning to the community, the neighboring landowners and the
property owner.
The letter further states that the legal burden is on the landowner
requesting the change to prove that all of the elements for re-zoning as
described in Griswold vs. City of Homer the 1996 decision are satisfied. He or she should tell the Commission how the
proposal meets the applicable test. If
this is postponed, those are the questions that should be answered. Mr. Griswold cited specifics in the case to
support that statement.
John Hansen, property owner in the proposed re-zone area, stated that he
bought his property in the 60’s. He has
tried to do things with the property but have not been able to get a permit to
accommodate someone else using their lot.
He stated his belief that there is a shortage of good business land and
why not put it next to an area where there is already business and make it
larger. He stated he is in support of
the change.
Chair Chesley asked former Mayor Cushing and Councilmember Novak, who
were in the audience, about the status of the scenic gateway. Mr. Cushing commented that it’s his
understanding that the scenic gateway is unfinished business. Councilmember Novak added that it is
inactive right now as there have been other issues. He commented that the people who spent time with the Town Center
project did it with the intent of developing some location in the CBD where it can
be linked to Pioneer Avenue with mixed uses that people could walk to. The concept has been that the people
involved wanted to develop the existing business area in an effort to keep it
in the business core to provide walk-ability from Pioneer Avenue, to Heath
Street to the Sterling Highway. There
is a lot of room in there and money put into Dr. Marley’s idea can be put into
the current CBD. Mr. Novak understands
what Dr. Marley wants to do but the trend has been to build from the center
out.
HESS/CONNOR MOVED TO ACCEPT STAFF REPORT PL05-66 WITH STAFF
RECOMMENDATIONS.
Staff
recommends the Planning Commission not recommend approval of the
applicant’s request for a zoning district change (Draft Ordinance 05- ) and adopt findings supporting this. However, should the Commission decide to recommend
approval of the proposed rezone findings supporting this are also
required.
Chair Chesley made the recommendation in terms of the process to
follow. A zoning action like this, the
Council will make the final decision.
He suggested the Commission move this to Commission Business for the
next meeting and in preparation for that, take the following items into
consideration:
ü Staff and City Attorney Tans respond to the
Commission regarding the question asked on the ballot like form that says “Yes
I would like to have my property in this described are re-zoned as Central
Business District with emphasis on tourism”.
There is no provision for “emphasis on tourism” in the code.
ü Review the request for the appropriateness of
the area.
Chair Chesley asked City Planner McKibben have a copy of Dr. Marley’s map
and a copy of the Griswold vs. City of Homer decision be included in the next
meeting packet. He also requested Mayor
Hornaday and City Manager Wrede attend to participate in the discussion.
Commissioner Lehner commented in support of having the above-mentioned
materials before acting on this re-zone.
PFEIL/FOSTER MOVED TO POSTPONE ACTION UNTIL THE NEXT REGULAR MEETING.
There was no discussion.
VOTE: YES: LEHNER, HESS, FOSTER, CHESLEY, CONNOR, PFEIL,
KRANICH
Motion carried.
Chair Chesley called for a break at 9:20 p.m. The meeting resumed at 9:30 p.m.
C. Staff
Report PL 05-67 Re: Request For Vacation Of Right-Of-Way
Easement, John Street & Grace Avenue, Within John B. Fenger Subdivision No.
2, Lot 3A.
City
Planner McKibben summarized the staff report.
She reminded the Commission that they had acted on the John B. Fenger
preliminary plat on April 6, 2005 and one of the conditions of approval was to
either show the interior road easements on the plat on Lots 3,4 and 5 or submit
a vacation request for the road easements.
She pointed out that this is the applicant following up on that
condition.
There
were no public comments.
LEHNER/KRANICH
MOVED TO ADOPT STAFF REPORT PL05-67 WITH RECOMMENDATIONS.
The
Planning Commissions grant approval of the Vacation of Rights-of-Way for John
Street and Grace Avenue.
Commissioner
Foster asked for clarification on a discrepancy between the plat and the map
provided by the Planning Department.
The plat shows the right-of-way dedication for Kachemak Drive but the
map does not. City Planner McKibben
replied that the ROW may or may not be there.
The map provided by the Planning Department was based on parcel mapping
from the Borough and may be inaccurate.
VOTE:
YES: KRANICH, FOSTER, CHESLEY, LEHNER, PFEIL, HESS, CONNOR
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. Bidarka Heights Shadley Addition
Subdivision Prliminary Plat.
Reconsidered
Commissioner Hess declared that he has a conflict of interest. He stated that he lives on Highland Drive, which is subject to one of the staff recommendations, and he cannot render an impartial decision. Chair Chesley agreed that Commissioner Hess has a conflict of interest.
LEHNER/KRANICH MOVED TO OVERRULE CHAIR CHESLEY’S DECISION.
Commissioner Lehner commented that Mr. Hess has a personal interest, which is shared in common with a large class of citizens, which is everyone else on Highland Road.
Commissioner Hess replied that he judged for himself if he had a conflict of interest, by putting himself in the position of a property owner on West Hill, theoretically not associated with Highland Drive. He believes if someone were to propose an amendment to delete the half dedication of right-of-way he would vote differently if he did not live on Highland Drive than if he did live on Highland Drive.
Commissioner Lehner stated that if that is the case, she has a conflict as well, because she lives on Bayridge. If, in the long run, Highland goes through, the dump runners won’t be going past her house, they will stay on Highland and won’t bother her.
VOTE: YES: PFEIL, LEHNER,
NO: CHESLEY, CONNOR, KRANICH, FOSTER
Motion failed.
Commissioner Hess was excused and left the table.
Commissioner Lehner declared that she has a conflict of interest. She live on Bayridge and to get through, everyone goes from West Hill to Rogers Loop uses Bayridge to go through. If Highland were to be extended they will no longer pass by her house. She will personally benefit because she will not have the traffic going by her house and she can’t be impartial.
Chair Chesley affirmed her declaration.
CONNOR/KRANICH MOVED TO OVERRULE THE CHAIRS DETERMINATION.
Commissioner Connor commented that Mr. Hess said he would vote differently if he did not live there, she asked Commissioner Lehner if she felt the same. Commissioner Lehner answered that with regard to the appearance of fairness, even though she voted against her best interests, there may be an appearance that she can’t be fair because she does have an effected interest.
Chair Chesley asked to clarify there had been message traffic from the City Attorney regarding conflict of interest. Ms. McKibben replied that it had not gone to the City Attorney; she had forwarded information to Mr. Hess that she received from the City Clerk. She continued that the City Clerk did not offer an opinion, she provided information.
VOTE: NO: PFEIL, CONNOR, KRANICH, FOSTER, CHESLEY
Motion failed.
Commissioner Lehner was excused and left the table.
Jerry Anderson, surveyor, commented that the owner did not want the thirty foot right-of-way dedication. He had explained to them that it was probably a done deal.
Commissioner Kranich asked if there was a specific reason they did not want it dedicated. Mr. Anderson replied that they don’t want traffic going down there that would to nowhere but their house right now. Mr. Anderson explained to the applicants that in order for a road to be constructed there, the other half of the right-of-way would have to be dedicated by future subdivision action and the chances of great increases in traffic was extremely small.
City Planner McKibben directed the Commission to page 89 of the packet which states “Homer City Code 11.04.040 Street construction, design and dedication requirements- General (c) states: “The Planning Commission shall require the dedication of a half street if the other half of the street has been dedicated or can reasonably be expected to be dedicated, unless it determines the street would be unnecessary or undesirable. It shall further require half-street dedications if the street is on the Master Plan for Roads and Streets map as a planned improvement of the logical existing street.” The extension of Highland Drive from Rogers Loop to West Hill Road is depicted on the Master Plan for Roads & Streets map.
Ms. McKibben continued that in addition it’s shown in the draft Transportation Plan that the Commission forwarded to the City Council for consideration. She pointed out that in the past they have struggled with vacations of rights-of-way and in general giving up the City’s right to utilize properties is not a good thing. There are cases when it is appropriate but is not a general policy and is not considered lightly. Counter to that would be the opportunity to acquire rights-of-way that are consistent with the long-range plan. This is an opportunity to obtain half of the ROW. It doesn’t mean the road is going to be constructed and as it was pointed out can’t be constructed until the other half is dedicated some time in the future. This is the City’s opportunity now to obtain half of this ROW that is consistent with the long-range Transportation Plan and there may never be the opportunity again. At some point in the future that road may become necessary and the only other way to get it is through an adverse taking.
Chair Chesley asked for clarification of the motion on the floor. Deputy City Clerk Jacobsen read back the main motion and the motion to amend as follows:
LEHNER/KRANICH – MOVED TO ACCEPT STAFF REPORT PL 05-61 WITH STAFF RECOMMENDATIONS.
Staff Recommendations
1. Dedication of a 30-foot right-of-way creating half the south extension of Highland Drive to Tract 1B.[2]
2. Show access to a utility easement per HCC 22.10.051
LEHNER/CONNOR – MOVED TO AMEND STAFF RECOMMENDATIONS TO DELETE THE 30 FT. RIGHT OF WAY.
Commissioner Foster clarified that if this parcel gets subdivided in the future, the thirty foot ROW could be requested. City Planner McKibben affirmed that. Dr. Foster commented that he would be voting in favor of the deleting the ROW and would do the same at the Borough level. He explained that it is not a “slam dunk” however. The Borough was surprised at the last meeting that they had pulled it out because the Borough normally puts them in.
There was discussion regarding the roads in this area and the Commission’s recommendation on the draft Transportation Plan. City Planner McKibben commented that their recommendation emphasized what was already in the plan from the Road Standards Committee, which is an emphasis on keeping roads through neighborhoods and not be developed to become collectors, but be maintained as neighborhood streets, even though they are providing connections. There was further clarification of the way the streets currently lay.
KRANICH/PFEIL MOVED TO REINSTATE STAFF RECOMMENDATION 1 ON STAFF REPORT PL05-61.
Commissioner Kranich commented that he can sympathize with the property owners but there is a need to look ahead at what Homer is going to be in the future. He does not feel that they can continue to plan for that future with out taking every opportunity possible to provide alternate routes of travel. They need to plan for the future.
Commissioner Connor commented that the parcels are very large and if they are further subdivided, this will come up for a revisit in the future. As it stands now no one needs to use the road to have access to their land. As long as there is the option of this happening at a later date she is comfortable leaving it the way they originally decided.
Commissioner Pfeil expressed his agreement with Commissioner Kranich.
Discussion ensued on City Planner McKibben’s comments regarding the recommendation on the draft Transportation Plan and the code citation in the staff report regarding the Master Plan for Roads and Streets. City Planner McKibben pointed out that Highland Drive platted both on the East and West end, which clearly indicates the logical extension of existing streets.
Commissioner Kranich responded to Commissioner Conner’s comments that if at such time these other large parcels are subdivided, then they could be required to dedicate 30 feet but as they saw in the Quiet Creek Subdivision, they can’t require the dedication outside of their subdivision. So if the people up the hill from this subdivided, through that action they cannot require these people to dedicate because it is outside of the subdivision.
Commissioner Kranich commented that he sees there is a potential for a conflict in HCC 11.04.040. The two sentences could be seen as a contradiction.
VOTE: YES: CHESLEY, CONNOR, PFEIL, KRANICH
NO: FOSTER
Motion carried.
Chair Chesley clarified that the recommendation for the 30-foot ROW is back in and the main motion is to accept the staff report with staff recommendations 1 and 2.
VOTE: YES: CONNOR, KRANICH, CHESLEY, FOSTER, PFEIL
Motion carried.
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 05-18 (Amended) Re:
Request For Commission Acceptance Of A Nonconforming Structure On A Lot
At 3141 Lake Street, Lot 93, Oscar Munson Subdivision.
KRANICH/HESS MOVED TO ADOPT STAFF REPORT PL 05-18 (AMENDED) INCLUDING STAFF RECOMMENDATIONS.
Staff recommends the Commission
accept the structure located nearest Cape Douglas Way as a non-conforming
structure at 3141 Lake Street per HCC 21.64.
City Planner McKibben commented that information is included regarding
Borough setbacks in that Borough Ordinance 33 in May of 1967 enacted setbacks
in yard widths. Title
20-Subdivisioning, also enacted setbacks, which are only implemented through
platting action and only apply when indicated on the plat with a plat
note. The information the Planning
Department has is that this lot was platted in 1957 when there were no setback
requirements through platting actions.
Dick Troeger, retired KPB Planning Director and current Planning
Commissioner stated, after hearing the situation, that if there is not a plat
note stipulating a setback on a plat, the setback does not apply. In other words, “you can’t apply a
restriction after the fact.” It has
been stated that the non-conforming structure was built in 1978 and shows up on
tax roll in 1979. Borough regulations
require a front yard setback of 20 feet.
The front door of the building faces the Lake Street ROW and meets the 20-foot
setback ROW. The driveway is on Cape
Douglas Way. Staff does not have any
way of knowing where the driveway was when it was built, but it is not
unreasonable to consider that may have been considered the front yard at the
time and would have met the front yard setback.
Frank Griswold
made comment that years ago the City went through this on a property on Pioneer
and it was determined that the burden of proof lay on the property owner. They have to prove that the use legally
existed at the time it was built and if they can’t, it should be denied. It seems like it was built in 1979 but if it
was illegally put in the setback then, the Commission has no authority to
legalize an illegal use. They can only
grandfather a use that legally existed at the time it applies. With all of the questions the Commission
has, the property owner has not met his burden of proof.
Commissioner Kranich commented that in light of recollections back to
how irregular the Borough was, especially in those early years, to have the
building show up in 1979, he would doubt if it was the year before that. With that reasoning he would not find it
hard to believe that the structure could have been there for several
years. It is likely that it could have
been there before the setbacks were required.
He is going to support the motion he made.
Chair Chesley asked if there was any additional information with the
letter the Macks submitted stating that HEA had information to show that the
structure was on the tax rolls before 1979.
City Planner McKibben said there was no other information submitted.
City Planner McKibben reviewed the Borough setback requirements from
the 1975-79 timeframe as written in the staff report.
There was discussion on the status of Cape Douglas Way, which is not a
developed road yet, just a driveway.
VOTE: YES: KRANICH, FOSTER, LEHNER, PFEIL, CONNOR
NO: CHESLEY, HESS
Motion carried.
B. Staff Report PL 05-47 Re: Proposed Amendment to HCC 21.60.060 Table 2, Maximum Total Sign Area Per Zoned Lot by Zoning District. Postponed.
There was discussion for
clarification of the sizes for the signs.
HESS/KRANICH MOVED TO SCHEDULE THE PROPOSED ORDINANCE PUBLIC HEARING ON AUGUST 3, 2005.
There was no discussion.
VOTE: YES:
UNANIMOUS CONSENT
Motion carried.
C. Staff Report L 05-46 Re: Proposed Amendment to HCC 21.45.040 (b) Dimensional Requirements (b) Building Setbacks (1). Postponed
Commissioner Kranich asked
if at the bottom of the proposed amendment it should be 1 ½ story and 2-½ story
rather than 1 and 2. The Commission confirmed Mr. Kranich was correct.
Chair Chesley recapped
that this came as a result of Larry Herndon’s request for a vacation of a ROW
that is pretty apparent that it won’t be constructed. The applicant was asking that the ROW be vacated but it is a
popular trail area for going to the beach so the Commission felt it did not
want to do that, but they did want to find a way to address the issue, which
would be to give the landowner relief from the 20 foot setback for a road ROW,
particularly when the ROW wasn’t going to be built. There are four other roads that have a similar situation and this
amendment is designed to make a provision to give relief from the setback on
those ROW’s.
There was discussion that
the staff report referred 21.45.040 urban residential, but all of the areas
where this situation occurs are in 21.44 rural residential. City Planner McKibben said she would correct
that.
HESS/PFEIL MOVE TO
POSTPONE WORK ON STAFF REPORT PL05-46 TO THE NEXT REGULAR MEETING.
There was discussion about
confirming the districts and lists.
VOTE: YES:
UNANIMOUS CONSENT
Motion carried.
The Commission discussed rescheduling this item
LEHNER/CONNOR MOVED TO POSTPONE PL 05-38 TO THE AUGUST 3,
2005 WORKSESSION.
Commissioner Hess voiced his opinion that they should do
away with this amendment because there are so many convoluted problems with it.
City Planner McKibben said she would like to see the
Commission discuss it and consider City Attorney Tans’ comments.
VOTE: NO: PFEIL,
CONNOR, HESS, KRANICH, FOSTER, CHESLEY, LEHNER
Motion failed.
HESS/KRANICH MOVED TO MOVE STAFF REPORT PL05-38 BACK TO THE
COMMISSION WORK LIST AS A LOW PRIORITY ITEM.
VOTE: YES: UNANIMOUS CONSENT
Motion carried.
E. Staff Report PL 04-109 Re: Commission Work List – On-going.
There was minimal discussion of the work list. City Planner McKibben stated she would have an updated work list for the next meeting.
F. Rural Residential Statement of purpose.
Commissioner Connor stated that after the discussion of the Quiet Creek Subdivision, even though the lot sizes meet the minimum requirements of the code, she believes they contradict the purpose of Rural Residential, which clearly states a low-density development in the City.
Discuss ensued and the following points were brought up:
ü Looking at lot sizes is an item on the work list.
ü Consideration of a moratorium on subdivisions in the Rural Residential District.
ü Conservation Subdivisions.
ü Looking at subdivision requirements more so than lot sizes.
ü Consideration of low-density development.
HESS MOVED TO ADD TO THE NEXT AGENDA UNDER COMMISSION BUSINESS A PROPOSAL FOR MORATORIUM ON NEW SUBDIVISIONS IN THE RURAL RESIDENTIAL DISTRICT.
There was discussion that research would need to be done to determine the process of a moratorium.
City Planner McKibben commented that the Comprehensive Plan does not address the annexed areas and that is another issue for the Commission to consider. She commented about the expense involved and the need to find funding to do it. She wanted to point out that this is an issue that needs to be considered with the general planning process.
VOTE: YES: UNANIMOUS CONSENT.
Motion carried.
Commissioner Hess commented that this is another area where the City needs to get a handle on the development that is going on. The standards are there, they need to be moved into the other districts.
HESS/CONNOR MOVED TO HAVE STAFF DRAFT AN AMENDMENT TO EXPAND THE REQUIREMENTS FOR DEVELOPMENT ACTIVITY PLANS AND STORM WATER PROTECTION PLANS TO ALL ZONING DISTRICTS FOR THE JULY 20 REGULAR MEETING.
VOTE: YES: UNANIMOUS CONSENT.
Motion carried.
A. Borough Report
Commissioner Foster advised the Commission that the Borough misinterpreted their decision on the Tulin project. It had been written up that they had passed the project, and he could not vote in support of it at the Borough Plat Committee meeting. The Borough Planning Department and some of the other Borough Commissioners said that the issues could be taken care of with the subdivision agreement. Dr. Foster stated that it was the feeling of the Homer Planning Commission and staff that they did not support this; the Borough, with the understanding that there is a time limit, postponed it. Dr. Foster recommended to the Borough that this should come back before the City so the City could support it. Mary Toll, Borough Planner, told him that if the City does not support it, then she couldn’t sign off on it, which means that it can never go to final plat.
There was discussion to clarify why the plat needs to come back before the City. Commissioner Foster commented that the problem was that the City did not want it to pass until Public Works could make some adjustments. Chair Chesley requested that Ms. McKibben prepare a memo to Ms. Toll reaffirming the City’s opposition because Public Works wants the opportunity to work with the applicant.
B. Kachemak Bay Advisory Planning Commission Report
City Planner McKibben brought the Commissions attention to the Capital Improvement Plan (CIP) schedule. The Commission agreed to start discussion on August 3rd.
Ms. McKibben thanked the Commissioners who attended the Town Center Development Open House and the Department of Transportation meeting. She also advised the Commission that Planning Technician Eggertsen-Goff would be leaving sometime in the next few months. Planning Administrative Assistant Guyton’s retirement date is not set yet; she is waiting on the sale of her home.
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. City
of Homer 2006-2011 Capital Improvement Planning Process; 2007 Legislative
Request Development Schedule.
B. Plat
Waiver Request, Country Club Estates, Tract 2-2, HM99-10RS, Laura Peek, dated
June 4, 2005 to KPB.
C. Letter
to Mary Toll dated June 2, 2005 from Beth McKibben re: Lot 11, Bayberry Hollow Addition, Lillian Walli Estate.
D. Informational letter to Homer Area
Construction/Contractor Businesses dated May 31, 2005 from Lani K.
Eggertsen-Goff re: New brochure from Public Works &
Planning & Zoning.
E. Letter
to HAPC from Bruce Turkington, Spenard Builders Supply, re: Intersection
Traffic Plan.
F. Clerk’s June Calendar.
Chair Chesley commented that the DOT had left the posters from their meeting and they were taking written public comment through July 20th. He encouraged people to share their written comments. He pointed out that their model road extension shows a different version of the Heath Street extension and Lake Street extension.
Members of the audience may address the Commission
on any subject. The Chair may prescribe
time limits.
Jerry Anderson commented that he had met with Public Works Director Meyer who assured him that the email that was sent asking for postponement on the Tulin’s subdivision was not sent with his knowledge or consent. Mr. Meyer told Mr. Anderson that he had no intention of having the plat postponed, Mr. Meyer was making the comment that there were things that needed to be worked out on the road design and construction standards for the subdivision, which Mr. Tulin is certainly willing to do. Mr. Anderson commented regarding Commissioner Foster’s Borough report that action or inaction by the City does not stop a plat. The City has 49 days to give their advice or comments to the Borough Planning Commission. The Borough Planning Commission generally does uphold all requests by the City when it comes to design standards, substance or something like that. The City can disapprove plats all day long and it does not stop it at the Borough level. Mr. Anderson expressed his delight that Commissioner Lehner is on the Commission because she thinks out of the box. He expressed his agreement with ideas she has brought up regarding subdivision. He spoke about ideas he had previous to the Town Center, which he proposed to Council to turn Pioneer Avenue into a pedestrian mall, leaving room for deliveries, cross streets and emergency vehicles, and was laughed out of town as being a ridiculous idea. He finds it fascinating and suggested that if the Commission could review in their mind tonight’s actions, they ran into a road block to keep them from doing the right or intelligent thing because of some other ordinance that had been passed some other time. He reiterated to the Commission the offer he has made many times that if they could show him one simple social that has not been created by or made worse by a government program, he would buy them a steak dinner at Land’s End. The caveat is that if the problems created are worse than the problem solved, it doesn’t count. He read the following letter into the minutes addressed to City Planner McKibben:
The City Planning Department has raised the Plat review fee to $200.00. This is double the fee charged by the KPB Platting authority. Platting powers have been assumed by the Kenai Peninsula Borough. While the Borough can, if they desire, delegate those powers to the City, they have not yet done so. Consequently, the involvement of the City is limited the being advisory to the Borough. The Borough submittal fee for plats is established by resolution 96-22 adopted in 20.12.040. Plat submittals to cities are governed by the provision 20.12.050. I am unable to locate the statute or Kenai Peninsula Borough ordinance that allows Advisory Planning Commissions to charge a filing or review fee for Borough subdivision plats. A letter was faxed to the City Manager, copy attached, on April 5, 2005 requesting that he provide the source of authority whereby the City of Homer is authorized to levy plat review fees. To date he has not seen fit to respond. In view of the apparent lack of authority to levy charges for the opportunity to review subdivision plats in an advisory role to the Kenai Borough platting authority, I respectfully request the immediate refund of the review fees unlawfully collected during the past year. Fees were levied for the following subdivision:
Nordby Subdivision No.04 Bradshaw Addn. $200.00
Bidarka Heights - Shadley Addn. $200.00
Tulin East Terrace $200.00
Total Amount Due and Payable $600.00
Interest at the rate of 10% per annum will be charged until paid in full. If legal action becomes necessary for collection all costs and fees will be added to the balance due.
Sincerely.
Mr. Anderson stated that if there is a legal method whereby the City is
authorized to charge those fees, he would step back, however it has been a
little over two months and the City Manager has not responded. Moratoriums are tough on subdivisions
because until the City takes over subdivision powers, the Borough controls the
strings.
Joe Malone asked the Commission if there would be further opportunity for public comment regarding the rezoning of the urban and rural residential of the 20 lots into the business district. Chair Chesley replied that they would and it would be taken up again on July 20th. Chair Chesley explained the process and explained that the public has the opportunity to comment during the meeting or can submit written comment ahead of time if they are unable to attend. It will go to the City Council for final action and there is opportunity to speak then as well.
Frank Griswold stated first of all, wondered how Pioneer Avenue could have been turned into a pedestrian mall without some government action. Two, if you want to keep Administrative Assistant Guyton, put a restriction on her property so she can’t sell it. Three, he doubts any city in the USA grants setback variances, via the conditional use permit process. This Commission should repeal HCC 21.48.040(b)(4), it is going to open a lot of cans of worms and there will be lots of midnight meetings, it’s going to create a lot of hard feelings, it is going to discriminate against those who are unfortunate enough to have utilities under their property because the Commission will not want to give them the same setback relaxation to those who don’t. Pioneer Avenue will not dry up and blow away just because buildings are not built right up to the street. A little green grass between the ROW and storefronts is in accord with the Comprehensive Plan as it does help create an attractive business core. In regard to conflict of interest Mr. Griswold commented:
1. It doesn’t matter if a member is potential adversely affected or positively affected by a determination the COI code still applies, code states that if there is a pecuniary gain or loss exceeding $300.
2. Impartiality is required in quasi-judicial proceedings although not generally required in legislative actions. Mr. Griswold is pretty sure the plat review was quasi-judicial so he thinks that the standards are more, but it doesn’t really say in the code except under the appeal proceedings in HCC 21.68.100, but he thinks it is implied because the appeal proceedings are quasi-judicial proceedings and you have to have not only no financial interest but you can not be biased. He feels the bias issue should be put into the code. Someone living in a small area directly affected by something like this would be affected differently than someone in the community at large.
3. Until the code is changed, Mr. Griswold thinks a Commissioner would have to vote on his own conflict of interest. He is not saying it is a good idea, in fact when the COI code was adopted, he recommended that there be stipulation that one not participate in his own conflict of interest and the City Attorney deleted it. Until it is determined that someone does not have a conflict of interest, he is required to vote in all matters. He pointed out that Commissioner Lehner had the opportunity to vote on Commissioner Hess’ conflict but he did not have the opportunity to vote on hers. If it had been a close call it could have changed things dramatically.
Chair Chesley asked that the City Clerk review this section of the minutes.
4. In Board and Commission meetings the whole body decides the conflict of interest, not the presiding officer. HCC 1.12.040 only applies to Councilmembers.
There was discussion regarding whether or not this specific section of the code applies to Commissions or not.
5. HCC 1.12.060 states, “A city employee, or a city official other than a member of the City Council, may not participate in an official action in which he has a substantial financial interest.” He stated this would apply to the City Planner.
Mr. Griswold recommended the Commission take this up with the City Attorney and insist that the code clearly state that if the want Council procedures different than Boards it should all be spelled out.
Katherine George, City resident, commented that staying so late, she has a greater appreciation of what the Commission does and thanked them. She stated that she was in attendance to address the Quiet Creek Subdivision. After the last meeting regarding the subdivision she understood everything went on hold and there would be an opportunity to meet with staff and developers before work went ahead, but in that time there has been clear cutting of five acres or larger, in her estimation, of trees and vegetation. Some of the trees were over 16” in diameter, which is larger than brush. There was spruce, birch and alder and it has left an open area in the middle of that plat. Some of the cutting has taken place along really steep ravines and she is concerned about any impact on drainage or erosion. Some of this area is really wet. She felt they had a good faith agreement from the last meeting that the developer not do any further cutting in this area until they had the opportunity to talk about what is happening there. Ms. George spoke of an area she saw in Soldotna that was a little park along the river that is nicely developed, when she walked the Quiet Creek Subdivision she had the feeling that part of Quiet Creek could be like that City park. 15 years down the line the City will really regret building houses on it and how lovely it would be if that were a real park rather than the parks that are lined out, which are steep ravines with water running coming down. Ms. George told the Commission about Beth Cummings who lives on the end of Rangeview. She has a small lot with a small two-story house nestled into the trees. She thought that if a person is going to do a concentrated development with small lots, this is the kind of restriction that should be there. Keep the trees, they are a visual buffer, a sound buffer, protect the environment and give the atmosphere that Commission Lehner had addressed in her earlier comments. She thanked the Commission for addressing the conflict of interest. She commended Commissioner Hess for examining feelings, coming back, and declaring his conflict.
Francie Roberts, City resident on Mountain View Drive, thanked the Commission for considering the letter she submitted regarding the Quiet Creek Subdivision at the meeting two weeks ago. She was glad to hear the intersection plan with DOT was discussed; it validates some of the things she was talking about over the winter. The Quiet Creek plan, the topography and how they are surveying, there should be a diagonal main thoroughfare through the center. She believes a similar road was delineated on the Transportation Plan, which could be a main feeder route through the subdivision. She thanked the Commission for the presentation from the COE on the wetlands. It is pertinent to the Quiet Creek Subdivision development. The proposed Heath Street traffic goes over a major wetland area that had significant flooding. She was glad to hear the Commission will be examining the Rural Residential Subdivision issue. Commissioner Lehner had some good point and Ms. Roberts agrees with them, but because of the permitted use allowed in Rural Residential the Commission also needs to consider what is going on. The Commission needs to think about how people are going to interact in that area as Rural Residential permits almost every use.
Bill Smith, citizen at large, stated he was driving by and saw the cars and stopped in. He asked the Commission if they took action on the rezoning. Chair Chesley gave Mr. Smith an overview of what happened.
COMMENTS OF THE COMMISSION
Commissioners may comment on any subject, including
requests to staff and requests for excused absence.
Commissioner Connor thanked everyone for their hard work and discussions, she feels like they covered some ground. She expressed her appreciation for all the Commissioners.
Commissioner Kranich agreed with Ms. Connor’s comments. He said there are a lot of issues on the table and the mud isn’t getting any shallower.
Commissioner Foster commented that one thing that came up at the Borough meeting in their staff report was that staff does not recommend that a note be placed on the plat stating that a minimum of 15 feet shall be provided between any structure and the top of the bank for any defined drainage. This is a development issue that is handled by the City and may be revised, removed or granted a variance if allowed under a City code, any such actions would then require a change to a Borough plat. He noted that they had made that recommendation a few other places, so he feels they need to have that clarified. He gave a copy of what he just read to City Planner McKibben. Dr. Foster expressed his agreement with most of what Mr. Griswold said tonight. He wished they had some clearer code in the sense they struggle a lot with the barriers.
Commissioner Pfeil had no comment.
Commissioner Hess said he had met with City Manager Wrede and there was a suggestion that the City look for funds for updating the Code. He suggested getting an update requested so the Council can look at it for a funding priority. Mr. Hess also requested that the City Council look at the increased amount of work that the Planning Staff has been burdened with. He thinks that Council really needs to look at that to see if there is some reason for an increase in funding for the Planning Staff. Mr. Hess commented that he perceived the State Transportation provided incredible arguments for roundabouts. He had the impression that it was a “no brainer” that roundabouts are the way to go. He hopes people take their recommendations and do something with them. He hopes the Commission can do something again in recommending going forward and getting some capital improvement funding going for that.
Chair Chesley commented he would like to have the DOT report on their next agenda because he would like to see a joint meeting with the Road Standards Committee to go over it and make a recommendation to City Council.
Commissioner Lehner had no comment.
Chair spoke of trip to Dubai and
shared that it is one of the fastest developing areas in the world. He said they are trying to build a new Hong
Kong, London, New York all in one in the middle of the desert region there in
the Persian Gulf. They have issued 5000
zoning permits for high rise towers to be built in a ten year window and 60% of
them are already under construction.
They are working on a census there and there are 15 million people there
and only about 4 million are permanent residents. The development that is happening is phenomenal. He closed by saying that the Commission and
Staff are all fantastic workers and thanked the audience members.
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 12:06 a.m. The next Regular Meeting is
scheduled for July 20, 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:
[1] Mark Kinney is District Conservationist for the USDA Natural Resources Conservation Service. The NRCS provides technical assistance and support to the Homer Soil and Water Conservation District.
[2] Clerk’s Note: During approval of the Minutes it was pointed out that this staff recommendation should read “Dedication of a 30 foot ROW crating half of the west extension of West Highland Drive to Tract 1B”.