HOMER
ADVISORY PLANNING COMMISSION UNAPPROVED
REGULAR
MEETING MINUTES
JUNE 20, 2007
Session 07-10 a Regular Meeting of the Homer Advisory Planning Commission was called to order by Chair Kranich at 7:06 pm on June 20, 2007 at the City Hall Cowles Council Chambers located at 491 E. Pioneer Avenue, Homer, Alaska.
PRESENT: COMMISSIONERS CHESLEY,
HESS, FOSTER, KRANICH,
MINSCH,
SCHEER, ZAK
STAFF: CITY PLANNER
MCKIBBEN
DEPUTY CITY CLERK KRAUSE
APPROVAL OF AGENDA
The agenda was approved by
consensus of the Commission.
PUBLIC COMMENT
The public may speak to the Planning Commission regarding matters not scheduled for public hearing. (3 minute time limit) Presentations approved by the Planning Director, the Chair, or the Planning Commission. A Public Works representative may address the Planning Commission.
There were no public comments.
RECONSIDERATION
There was no
reconsideration.
ADOPTION OF CONSENT AGENDA
All items on the consent agenda
are considered routine and non-controversial by the Planning Commission and are
approved in one motion. There will be
no separate discussion of these items unless requested by a Planning
Commissioner or someone from the public, in which case the item will be moved
to the regular agenda and considered in normal sequence.
1. Approval of Minutes of June 6, 2007
2. Time Extension Requests
3. Approval of City of Homer Projects under HCC
1.76.030 g.
4. KPB Coastal Management Program Reports
5. Commissioner Excused Absences
The consent agenda was
adopted by consensus of the Commission.
PRESENTATIONS
Presentations approved by the Planning Director, the
Chair, or the Planning Commission. A Public Works representative may address
the Planning Commission
There were no presentations
scheduled.
REPORTS
Commissioner Foster reported that
the Country Club Estates issues would be on the next agenda. Commissioner
Chesley inquired if Commissioner Foster was “re-upped” with the Borough.
Commissioner Foster believes the appointment was approved at Council level, but
did not receive official notice, and believes that the deadline is July 1,
2007. However, he would hope to get notice prior to that since he is Chair of
the Plat Committee.
There was no KBAPC report.
Staff Report PL 07-55, Planning
Director’s Report
City Planner McKibben reviewed
her report; she noted it would be very short. She introduced Deputy City Clerk
Krause to the Commission.
Commissioner Foster asked City
Planner McKibben when City Council was to announce appointments. Commissioner
Foster asked if the Planning Commission ever made recommendations to Council
regarding appointments. City Planner McKibben stated that to her knowledge, it
has never been done.
PUBLIC HEARING
The Commission conducts Public Hearings by hearing a staff report, hearing public testimony, and then acting on the Public Hearing items. (3 minute time limit) The Commission may question the public. Once the public hearing is closed, the Commission cannot hear additional comments on the topic.
City Planner McKibben reviewed
the staff report.
Commissioner Hess asked Chair
Kranich if there could be a possible conflict regarding the issue that his
company would be bidding on this project when it does go to bid. Chair Kranich
did not see where there was any conflict of interest at this point.
Commissioner Hess has no advantage at this point over any other contractors
that would be potential bidders on this project. Commissioner Hess has not
received any compensation and the project has not been permitted. Chair Kranich
did state however, he could see that when CUP 07-11 is approved and the project
is permitted that Commissioner Hess would most definitely have a conflict of
interest and will not be able to vote on issues regarding the Water Treatment
Plant.
CHESLEY/SCHEER – MOVED
COMMISSIONER HESS HAS A CONFLICT OF INTEREST ON CUP 07-11. 2007 WATER TREATMENT
PLANT.
Commissioner Chesley asked for
Staff interpretation on the Conflict of Interest. City Planner McKibben was of
the opinion that there is a potential for financial gain if the Conditional Use
Permit is approved. There is the potential for the appearance of special
treatment if Mr. Hess votes in favor of the CUP and is the successful bidder on
the project. There would also be the potential for a complaint to be filed.
Chair Kranich brought up one legal proceeding in the past that echoed some
aspects of this situation. He continued that Commissioner Hess would have no
advantage over any other Contractor. All information available to Commissioner
Hess is equally available to the public as a whole. Commissioner Foster agreed
on issue with Chair Kranich, but agreed strongly with City Planner McKibben
that the appearance could do the same amount of harm or more so with the
public.
VOTE. YES. FOSTER, MINSCH, CHESLEY.
NO. SCHEER, ZAK, KRANICH.
Motion failed.
Discussion ensued and the
following points were noted:
·
Commissioner Hess stated that if the issue was brought up
in the future the Commission did try to address the possibility of a conflict
of interest.
·
Commission involvement is due to the project being located
within the Bridge Creek Watershed Protection District.
·
Issues that the Commission will address are to be within
the BCWPD only.
·
Leading by example, the project will conform to the
Community Design Manual, even though it is not required.
·
Best management practices regarding mitigation and erosion
control will be used. There will be public availability to view construction
examples of the process.
·
Changes in the building design, interior features, and
exterior features.
·
A new occupant will be found for the old building.
·
Hazardous materials storage and handling areas will be
segregated from physical work locations within the building.
·
A new septic system will be installed.
·
Some testing was performed, test holes for foundation and
Percolation testing for septic.
·
Land purchase is still in the proposal stage.
·
The minimal amount of acreage needed is three, but five
acres, which falls within the Bridge Creek Watershed directive, would allow for
future expansion and provide an undisturbed buffer.
Commissioner Chesley stated that
in order to have a valid Conditional Use Permit the application must have a
legal description of the land, yet the final location is not agreed upon for
this project. Therefore, the application is not complete. He noted that this
item is “required” not optional. Chair Kranich followed up with a comment that
the CUP normally goes with the land and if for some reason the deal does not go
through then you have a piece of property with a CUP for a Water Sewer Plant.
City Planner McKibben stated that
when this was submitted for a CUP there was a timing issue with the purchase in
front of council with a land trade. The alternative was it could have pulled it
from the agenda, but it was still a possibility that an agreement could have
been reached, therefore, a decision was made to leave it on the agenda. Public
Works Director stated that approval of the CUP is not a requirement at this
time and it can wait.
Commissioner Foster asked City
Planner McKibben if there was intention to do something with the section line
easement and if there was precedence, where approval of the CUP is contingent
upon purchase of this parcel. Commissioner Minsch asked if the approval could
be granted based on the description of the parcel in question.
City Planner McKibben felt that they certainly would process a CUP that was submitted as long as the Owner of the property signed the application. This situation was unique. City Planner McKibben stated that the Commission can add conditions to the CUP ranging from a time requirement for construction, contingent upon land purchase, etc. The CUP application can be put on hold until the land issue has been resolved. Commissioner Sheer said he would entertain the approval based on the 119 acres as is and conditions on the new lot for the project. Commissioner Chesley wanted assurance from staff that from a legal standpoint the CUP can be approved without a legal description of the property. Chair Kranich recommended holding further comments until the Public Hearing was opened because at this time they are still in the discussion period. Public Works Director Meyer gave a brief summarization of the proposed timeline for the project.
Chair Kranich opened the Public Hearing.
There were no further comments
and Chair Kranich closed the public hearing.
CHESLEY/FOSTER - MOVED TO ADOPT STAFF REPORT PL 07-53 REGARDING CUP 2007-11 for a public water utility facility and an erosion sediment control plan WITHIN THE BRIDGE CREEK WATERSHED PROTECTION DISTRICT.
Discussion ensued regarding adherence to code requirements in regards to the CUP application.
HESS/MINSCH – MOVED TO POSTPONE CONSIDERATION OF THIS MOTION UNTIL THE NEXT MEETING.
It was noted that postponement of the decision would not adversely affect the project since there is no rush on the project at this time. Clarification can be made on the legal requirements.
FOSTER/CHESLEY – MOVED TO AMEND THE MOTION ON THE FLOOR TO READ - POSTPONE CONSIDERATION OF THIS MOTION UNTIL BROUGHT BACK BY STAFF.
Discussion ensued regarding amendment and allowing more flexibility for staff to gather the required information.
VOTE (Primary Amendment). YES. CHESLEY, MINSCH, ZAK, KRANICH, HESS, FOSTER
NO. SCHEER.
Motion carried.
Brief additional discussion regarding interpretation of the CUP application requirements on the legal description and property owner signature.
VOTE (Amended Main Motion). YES. MINSCH, HESS, KRANICH, CHESLEY, ZAK
NO. SCHEER, FOSTER
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 the
public. The Commission will accept testimony or a presentation on agenda items
that involve an applicant.
City Planner McKibben reviewed the
staff report.
HESS/MINSCH – MOVED TO APPROVED
STAFF REPORT PL 07-48, BAYVIEW GARDENS SUBDIVISION SITENGA REPLAT NO. 2
PRELIMINARY PLAT
Discussion ensued regarding the
plat notes and previous vacations and changes addressed in earlier platting
actions.
VOTE. YES. MINSCH, ZAK, KRANICH,
HESS, CHESLEY, FOSTER, SCHEER
Motion carried.
PENDING BUSINESS
City Planner McKibben opened
discussion with a suggested definition for Open Air Business.
Discussion ensued regarding the
language used in the definition submitted for review by City Planner McKibben,
the reasons and initiative behind addressing this issue with regard to
permitting, and zoning for a Farmer’s Market. This issue was discussed
previously and it was agreed that in defining “open air business” it would
address the situation allowing the Farmer’s Market in GC1.
Commissioners agreed on combining
parts of suggested definitions, the final definition agreed upon read:
“Open air business means the sale
or display of retail merchandise or services outside of a permanent structure,
including but not limited to farmer’s markets and garage sales held on a
regular basis. Open air market shall not include outdoor display or sales
associated with retail establishments that are principally located in indoor
facilities or motor vehicle dealerships.”
HESS/FOSTER – MOVED TO HAVE STAFF
DRAFT AN ORDINANCE REGARDING THE NEW DEFINITION OF OPEN AIR BUSINESS.
There was brief discussion
regarding itinerant merchants, sign codes, and the zoning requirements.
VOTE. YES. ZAK, HESS, FOSTER,
MINSCH, SCHEER, KRANICH.
NO. CHESLEY.
Motion carried.
Chair Kranich called for a short
recess at 8:38 pm. The meeting resumed at 8:52 pm.
Chair Kranich stated that this
was the item of discussion at the worksession and inquired if more discussion
was needed on the subject.
Commissioner Chesley asked for
further discussion on the topic so Commissioner Scheer could add more clarity
to his proposal. There was consensus from the Commission that more discussion
on Commissioner Scheer’s proposal would be helpful.
Commissioner Scheer recommended
taking Commissioner Chesley amendments, from the worksession, and proposed the
following amendments:
21.60.04 H, Business Cluster – A
zoned lot with more than one business, with or without a building, operating
under a use or conditional use listed for the zoning district in which the
zoned lot is located. The owner of the zoned lot shall be responsible for
applying to the City for all permits for the business cluster and maintaining
compliance with the Sign Code.
21.60.120 2.D Business Cluster
Permits – The owner of the zoned lot on which a business cluster is located is
responsible for obtaining all required sign permits and for payment of all fees
for all signs of the business cluster. (Ord.93-8A 11, 1993; Ord. 90-43 1, 1990)
In the City Code, table two,
remove all language after “cluster businesses” and replace with more acceptable
verbiage; multiple businesses in single structure or multiple structures, on
one lot, define a percentage amount that would be appropriate to increase the
signage area as appropriate, all language must be to promote the facility name,
not individual businesses. On the freestanding sign issue, define simple
verbiage regarding total percentage of the size of sign allowed. Recommend
modification to the maximum signage table in the future.
Discussion ensued regarding the
changes proposed to the current code on signage for a multiple business
complexes, such as the Lakeside Mall, and the amount of allowable freestanding
signage; allowable amounts based on the number of businesses; larger buildings
would have more wall space for signage. Current codes do not appropriately
address this issue. There was further discussion regarding making changes to
this at this meeting or addressing later. City Planner McKibben asked for
further clarification on the allowable freestanding signage.
There was no further discussion.
NEW
BUSINESS
The Commission hears a report
from staff. 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. Any items brought
before the commission for discussion are on the floor for discussion following
introduction of the item. The
Commission will accept testimony or a presentation on agenda items that involve
an applicant (such as acceptance of nonconformity).
City Planner McKibben reviewed
the staff report.
Mr. Richard Fetterhoff,
applicant, was invited to address the Commission. Mr. Fetterhoff answered
questions from the Commission regarding certain details of the submitted
mitigation plan. Commissioners offered additional methods that Mr. Fetterhoff
could employ.
MINSCH/HESS - MOVED TO ACCEPT
STAFF REPORT PL 07-54 MITIGATION PLAN FOR LOT 10, KELLY RANCH ESTATE WITH STAFF
RECOMMENDATIONS.
A. Staff recommends the Commission approve the mitigation plan and the
increase to 6.4% impervious coverage with the following:
Findings:
Conditions:
Chair Kranich asked staff for
clarification on decks being impervious. Mr. Fetterhoff was asked a few more
questions regarding drainage. He responded there was a culvert installed at the
end of the drive and that the driveway length was shortened to thirty- (30)
feet instead of sixty (60) feet so he did not feel there would be much run-off.
He would consider construction of a retention pond area for runoff.
Commissioner Scheer recommended alternative mitigation methods for a ditch. He
is not recommending change for this application just a more economical and
aesthetic appearance.
VOTE. YES. KRANICH, FOSTER,
CHESLEY, ZAK, SCHEER, HESS, MINSCH
Motion carried.
Chair Kranich excused himself at
9:22pm and returned at 9:26pm.
City Planner McKibben briefly
reviewed the staff report.
Staff answered questions from the
commission regarding the following:
1.
If a smaller number chosen than the DAP would there be
advantage to applying this to all building districts.
2.
During the research was there a percentage indicated.
3.
Applicability of formula to determine fill amount. Need to
lower threshold.
Discussions regarding the
thoroughness of the draft document and that it needed only minor revisions to
be complete.
Commissioner Minsch recommended
that the use of stumps for fill should be changed to vegetative materials
cannot be used for fill of any kind including landscape or driveway.
Commissioner Scheer commented on
the requirement for fill slopes and recommended that include the top of any cut
slope. Commissioner Minsch asked how this could be enforced. City Planner
McKibben stated that her department performs site visits during the project to
ensure work is being done in accordance with the code. Commissioner Minsch
asked if the city staff was qualified to make these decisions. Her concern is
that the City does not do asbuilt surveys or flag lot lines, etc. Therefore,
for the staff to go out and perform inspections when they are not fully
qualified to do this, could create problems; how do they know where the lot
lines are and such. Commissioner Scheer stated that it would be common sense to
get a survey done before starting work. Homer does not require that a survey be
done. It was commented that maybe it should.
Commissioner Foster addressed the
question regarding requiring permits from both the parcel fill being removed
from and the parcel being filled. He has reviewed the permit requirements for
this and he recommended that both parcels require permitting for fill and
removal.
Chair Kranich asked a question
regarding the definition of clearing, if it should be more specific.
Commissioners addressed questions
from staff concerning total amounts of fill materials, total area of
disturbance allowed, expiration and renewal of permits.
Commissioner Minsch stated that
more discussion was needed to discuss Item 2 Fill Standards; item b. should not
be allowed period due to decomposition causing unstable land. Commissioner Hess
agreed. It was noted that this issue may not be addressed this time around, but
it should addressed. Commissioner Scheer recommended adding detailed fill
material descriptions. Commissioner Hess pointed out that item h, under Grading
Excavation and Fill Permits, addresses that issue and recommended keeping it.
Commissioners discussed whether
these regulations should apply to BCWPD. The Commission was in consensus that
they did want the regulations to apply to all areas.
Commissioner Hess asked if Mark
Kinney could be invited to give advice regarding the language to be used
regarding fill materials. It may help with the decision making process on the
regulations by the Commission.
City Planner McKibben reminded
the commission that the majority of the document was taken from the City of
Anchorage. It also contains similar language to the EPA requirements for clean
fill. Further discussion evolved regarding the definition of clean fill,
problems and concerns. Commissioner Scheer commented that if tree roots cannot
be used as fill material he was sure that the document would not be approved by
the Commission. He inquired if a trigger for Public Hearing would be considered
on fill material at some point. City Planner McKibben stated no hearing were
planned at this time. He had concerns regarding other projects causing greater
environmental impacts to a neighborhood. He was of the opinion that at some
time the public should have an opportunity to comment on proposed work.
Commissioner Chesley asked staff
about time limitations on issuance of permits from Zoning, as he could not
locate it at this time. He wanted to recommend that the requirement be included
and keep things consistent within the code. He also recommended that City
Planner McKibben double-check this issue.
ZAK/MINSCH – MOVE TO TABLE THIS
ITEM TO A FUTURE WORKSESSION AT UNDETERMINED TIME.
VOTE. YES. NON-OBJECTION.
UNANIMOUS CONSENT.
Motion carried.
City Planner McKibben briefly
reviewed the report regarding the Open Meetings Act and Due Process
Requirements.
The Commission discussed the issues
surrounding independent research in conjunction with the regulations and laws.
Commissioner Chesley reported that in the Commissioners Handbook published by
the State of Alaska that it encouraged the use of independent research, total
opposite from what the City Attorney reported. There is a section in the
Handbook that warns about “ex parte” communication. Commissioners were mixed on the issue of obtaining information
in order to make an informed decision.
City Planner McKibben gave
further explanation regarding the legal requirement to make all information
available to all parties, possible parties, and the public. The Commissioners
are allowed to talk to Staff to clarify information or ask questions.
Commissioner Hess could not see where going on the internet, and looking up
Fire Access Code Regulations for example, that that information could not be
allowed. The internet is such a vast and easily accessible source of
information. City Planner pointed out one example how information was taken from
the Internet was brought to the meeting. Noting that staff was unaware of the
information and the applicant had no knowledge of the available information so
the applicant was unable to address the information. Therefore, independent
research does not protect the due process of the applicant.
Commissioner Chesley thought that
was an interesting point and related that during the time of the Commission
deliberations on that issue, he asked the Fire Chief a question regarding the
requirements. The Fire Chief was surprised that the Commission was asking about
it since that document had been forwarded to the Planning Department
previously.
Chair Kranich related that
Commissioners have always been encouraged to ask staff; he always wondered the
meaning of “staff”, City Staff or Planning Staff. He realizes now that the best
procedure would be to submit questions to Planning Staff and the Planning Staff
will forward to the appropriate parties and gather answers for the Commission,
plus accomplish the notice to the public and applicant.
Commissioner Scheer offered a
possible solution as a compromise, that the Commissioners can do their research
submit it to City Planner McKibben and it can then be distributed as required
as a laydown, but realized that is does not cover all possible issues.
Commissioner Scheer was informed that the applicant could not offer a rebuttal
after the Commission has had their discussion. The applicant could offer a
rebuttal after Public Comment only.
Commissioner Minsch related the
incident that brought this to the floor.
Commissioner Chesley does not
feel there was a violation in regards to the Open Meetings Act and Due Process.
The Commissioners were meeting with Staff to get clarification. They were not
seeking to make any decisions regarding the application.
City Planner McKibben stated that
the three commissioners knew what they were doing, but the Applicant did not
know what three Planning commissioners discussed; so the perception of a
violation of due process could have evolved.
Commissioner Chesley stated that
was the responsibility of Staff to decide how to handle the information. It is
not so much what happened, but that it should have happened differently. City
Planner McKibben stated there are better ways to handle a similar situation to
protect the Applicant’s right to due process.
Further discussion ensued
regarding trips to properties for inspection, and what the Borough does as
compared to what the City of Homer does.
INFORMATIONAL MATERIALS
A.
Small Town Design: Getting it Right. Planning, June 2007,
pages 36-39
B.
June 1, 2007 letter from Beth McKibben to Ed Adair at 1302
Ocean Drive, Notice of Intent to Assess Fines.
C.
Stop Work Order, June 1, 2007 from Beth McKibben to Ed
Adair 1302 Ocean Drive.
D.
Letter from Attorney Charles Tulin on behalf of Mr. Adair,
to the City Manager requesting a meeting regarding the Notice of Intent to
assess fines.
E.
Letter from Attorney Charles Tulin on behalf of Mr. Adair
to the Homer Advisory Planning Commission appealing the stop work order.
F.
June 13, 2007 Letter from Beth McKibben to Mr. Adair to
follow up on the stop work order and listing abatement requirements.
G.
Stop Work Order to Larry and Colleen Alred and Richard
Baker Construction for construction at 2443 Kachemak Drive.
None.
Commissioner Hess commented that
in the past they have found that the way they have done things does not
necessarily work. It is a good thing to postpone the discussion on the CUP.
Commissioner Foster commented
that the minutes should really be read, he felt that any Commissioner who
missed a meeting would be informed and thus save time at the next meeting; also
that he would be unavailable from July 2-25, 2007. Reminder KPB meeting next
week.
Commissioner Scheer stated if he
did not see anyone again, as his term is expiring he wanted to thank them and
he enjoyed working with them all on this commission; he conditionally applied
and has not heard from Council. Reminded the Commissioners about the issues
with stormwater drainage and mentioned a few points that were a major concern
with him.
Commissioner Chesley thanked
the Staff members for all their hard work and welcomed the feedback.
Commissioner Zak had no
comment.
Commissioner Minsch had no comment.
Chair Kranich commented that it
has been a pleasure serving with all the Commissioners and he is not sure
what the Council will decide, he believes everyone on the Commission has the
best interest of the community at heart. He hopes to return, but if not he may
drop in on a meeting or two.
There being no further business
to come before the Commission Chair Kranich adjourned the meeting at 10:41
pm. The next Regular Meeting is
scheduled for August 1, 2007 at 7:00 pm.
There will be a worksession at 5:00 pm prior to the meeting.
RENEE KRAUSE, DEPUTY CITY CLERK I
Approved: