Session 05-09 a Regular Meeting of the Homer Advisory Planning Commission was called to order at 7:05 p.m. on May 4, 2005 by Chair Chesley at the Homer City Hall Council Chambers located at 491 E. Pioneer Avenue, Homer, Alaska.

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

ABSENT: COMMISSIONER PFEIL (Excused)

STAFF: CITY PLANNER MCKIBBEN

DEPUTY CITY CLERK JACOBSEN

ROLL CALL

A quorum is required to conduct a meeting.

APPROVAL OF AGENDA AND ADOPTION OF CONSENT AGENDA

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

A. Time Extension Requests

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

C. KPB Coastal Management Program Reports

D. Commissioner Excused Absences

The agenda was approved as written by consensus of the Commission.

APPROVAL OF MINUTES

Commission approves minutes with any amendments.

A. Approval of April 6, 2005 Regular Meeting Minutes.

The regular meeting minutes of April 6, 2005 were approved as amended by consensus of the Commission.

B. Approval of April 20, 2005 Regular Meeting Minutes.

The regular meeting minutes of April 20, 2005 were approved as amended by consensus of the Commission.

PUBLIC COMMENT, PRESENTATIONS

The public may speak to the Planning Commission regarding matters not on the agenda. The Chair may prescribe time limits. Public comment on agenda items 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.

There were no public comments or presentations.

PUBLIC HEARINGS

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

A. Staff Report PL 05-53 Re: Request For A Conditional Use Permit, Cup #05-05 Yourkowski/Approval of More Than One Building Containing A Permitted Principal Use on a Lot as Permitted by HCC 21.53.030 (j) Located At 4460 Homer Spit Road, Lot 88-2, Homer Spit Subdivision No. 2 Amended.

HESS/LEHNER MOVED TO ACCEPT STAFF REPORT PL 05-53 BY READING OF TITLE WITH CONDITIONS, FINDINGS AND THE FOLLOWING STAFF RECOMMENDATIONS:

1. One of the applicants, Mr. Yourkowski’s or sub-lessee, Gerald J. Haughey, will work with the State Fire Marshall to assure the new building is constructed with appropriate materials to address the proximity to the Silver Fox Fishing Charter office building. A State Fire Marshall plan review certificate will be submitted with the Zoning Permit Application.

2. The applicant will acquire a zoning permit for the two structures used as Lola’s Restaurant, the main restaurant building and the adjacent accessory storage structure and the proposed fish processing building

3. The structures located within the setbacks will be modified to abate any zoning violations.

4. The boat, parking bollards and wood pilings that are located within the City’s parking easement will be removed.

City Planner McKibben commented that there is a laydown item from Alaska Custom Seafood for the Commission to consider. In reference to the Staff Report, Ms. McKibben stated that they made positive findings that this meets the requirements of code for a Conditional Use Permit and recommends approval with conditions. She added that one condition that was left off by mistake and it was the standard language that the applicant will comply with all other rules and regulations.

Mike Yourkowski, lessee and applicant, commented that it has been a long process working with staff to get to this point and hopes they can move forward now. Mr. Yourkowski wanted to point out that the permit requirements are being retroactively applied as all of the buildings have been out there for six or seven years with full knowledge of the Planning Department. Eileen Bechtol, who was doing the leases at the time Mr. Yourkowski got his, did not require him to get these permits. He appreciates the fact that the Planning Commission wants to get things squared away, but he was not trying to avoid anything by not getting the permits, he simply was not told he needed the permits. He prepared a site plan for Ms. Bechtol, she approved it and he moved the buildings on. Mr. Yourkowski commented that applying the fees retroactively is going to be a financial burden and he is requesting that they be reduced or waived. Mr. Yourkowski requested feedback from the Commission regarding the parking spaces; there have been several different scenarios for the number of parking spaces required. He can provide the 8 spaces currently required with the existing plan. He will get rid of the landscaping items in the parking area he has, if it is required. He commented that the as-built shows that one buildings porch is 2 feet in the setback and he will rectify that.

Commissioner Connor asked if the parking bollards and wooden pilings are restricting parking in that area. Mr. Yourkowski replied that they are not; it may restrict the area for backing up a little bit, if the bollards weren’t there they could pull in a little closer.

Commissioner Connor requested clarification on what is going to happen with the building that Silver Fox Charters is in. Mr. Yourkowski answered that the fish processing facility will be built first, then next year the plan is to tear down the existing Silver Fox building, rebuild it and create more parking.

Mr. Yourkowski commented to the letter from Alaska Customs Seafood’s in which they are requesting copies of sign permits. He stated that he does not have signs on the property, the businesses that are there do have signs and they are required to get the permits.

Chair Chesley commented for the record, that there were some pretty tough accusations from Mr. Faulkner of Alaska Custom Seafood’s, insinuating that because Mr. Yourkowski is on City Council that some how he is protected by the good ol’ boy network and given extra consideration. Mr. Chesley says he does not see that as the case out there. He believes that anyone who tries to comply with planning and zoning items out there have to work really hard to bring things into compliance. There are a lot of things out there that are not in compliance, a lot of work to be done and this administration in the City is committed, even for the City to follow the planning and zoning requirements.

Commissioner Kranich asked for clarification of the size of the building to be constructed. Mr. Yourkowski replied that the size of the building had to change to accommodate the parking, the proposed 2005 site plan is correct and it shows 24x30 feet.

In reference to Mr. Chesley’s good ol’ boy comment, Mr. Yourkowski commented that this lease was written by prior City Manager Ron Drathman, and any one who has had to deal with Mr. Drathman, know that he does not give anyone a good deal. He was very much coming from the City’s perspective.

Commissioner Kranich questioned if the front of Mr. Yourkowski’s property considered to be abutting a right-of-way since there is the parking area or not. If it is, there should be a 20-foot setback and if not, should it be 5 foot. City Planner McKibben checked HCC 21.52.040 and confirmed that it is 5 feet.

Bill Tener, lessee on the adjacent parcel, which houses South Central Radar, commented that he has had his lease for a little over a year. At the time Mr. Tener got his lease, he was dealing with the parking issue as well. He was told that any properties on the spit have to conform to the “in city” zoning criteria, which mandated the number of parking space required. Mr. Tener commented that Mr. Yourkowski’s lessee’s have had signs out in the area that is specified as City parking and Mr. Yourkowski still has a boat sitting in the right-of-way for the parking. Mr. Tener agreed that the new site plan is reasonable. Mr. Tener commented that he did not know who was sending out the earlier plans because they were not reading the zoning criteria. Mr. Tener admitted that he was the one who called planning and zoning when he found out construction was about to begin on Mr. Yourkowski’s lot without a permit. Mr. Tener had to comply and there is no reason that things would not continually snowball and have this lot continue to go down hill with more buildings and clutter. He reiterated that he is happy to see this site plan if it is in fact the one that is going to be used.

With regard to parking, City Planner McKibben commented that the parking code allows a few different options. She pointed out that if the three uses were in one building they would be required to have a total of 5 parking spaces based on their square footage. Since they are in three separate buildings, they are required to have twelve spaces. The parking code does allow the Commission to approve something different than what code states and staff has recommended five parking spaces for the three buildings. City Planner McKibben cited HCC 7.12.143 which references spit parking and its needs for seasonal parking and parking for year round permanent employees.

Chair Chesley cited 7.12.020 (a)(6) parking for retail spaces and (a)(20) for mixes uses which states that “the total requirement shall be the sum of the requirements for the various uses computed separately, except as otherwise approved by the Planning Commission.”

Chair Chesley showed the Commission a series of photos that he had taken of other buildings on the spit. His intent was to create an understanding for the Commission of what is going on out on the Spit. Chair Chesley commented that Mr. Tener and Mr. Yourkowski made good points that things are pretty out of sorts out there. His photos showed buildings that are in too close of a proximity to each other for fire and safety issues. There were buildings on lots that do not have CUP’s or PUD’s and a site that does not have approval for a mobile home park, but has several mobile homes on it that appear to be permanent in nature.

Commissioner Hess responded by saying that while he has the utmost respect for Chair Chesley, he doesn’t think the other issues out there have anything to do with this application they are discussing and whether it complies with the zoning requirements that they have to consider. While he agrees that there are other violations that are already existing on other properties doesn’t really have anything to do with this application.

Commissioner Kranich voiced his agreement with Mr. Hess.

Commissioner Foster commented about parking. The amount of square footage and amount of parking required make sense, until fishing charters are considered. A charter has no relevance to the size of the building, it should be linked to how many boats they have. That is part of the problem with the parking in the spit area.

Chair Chesley commented in response to Mr. Hess and Mr. Kranich, the point was to show that things are very confusing and the Commission needs to use some discretion in terms of what is going on out there and how to bring developments into compliance. The point was not to highlight other violations but to show that the Commission has a lot of work to do on the spit with staff and they may have to be creative on how they look at the code to bring things into as good of compliance as they can with what they have out there.

Commissioner Hess stated that he doesn’t see an issue with the parking for this application. There is a code basis to go by.

There were questions regarding the parking on the current site. It was confirmed through discussion and referencing the map that eight parking spaces are currently planned.

HESS/KRANICH MOVED TO ADD A STAFF RECOMMENDATION 5 THAT THE PROJECT WILL MEET ALL OTHER APPLICABLE LOCAL STATE AND FEDERAL REQUIREMENTS.

There was no discussion.

VOTE: YES: UNANIMOUS CONSENT

Motion carried.

HESS/CONNOR MOVED TO ADD TO ITEM F THAT THE COMMISSION ACCEPTS THE PARKING AS PERMITTED BY HCC 7.12.020 ITEM 20 MIXED USES AS PROPOSED BY STAFF.

There was no discussion.

VOTE: YES: UNANIMOUS CONSENT

Motion carried.

Commissioner Kranich pointed out that there were items that needed clarification or correction. On the staff report page three under discussion it states that the Port and Harbor Commission makes a written finding to the Commission that conditions 1 -3. He questioned what that refers to.

Chair Chesley replied in the code there is a provision in the Marine Industrial zoning that Marine Commercial uses can be allowed if the Port and Harbor Commission can make a determination on three points that those uses can be performed in the Marine Industrial District.

KRANICH/HESS MOVED TO AMEND FINDING A TO READ “THE City of Homer Port and Harbor Commission made a written finding to the Planning Commission that conditions 1-3 were met on January 16, 1991.”

There was no discussion.

VOTE: YES: UNANIMOUS CONSENT

Motion carried.

There was discussion with regard to the water and sewer hook up for the building, but was determined that is an area that Public Works deals with. There was further discussion about the fees Mr. Yourkowski spoke of earlier, but again that is not handled at the Planning Commission, and he would need to work with the Finance Department.

Commissioner Lehner pointed out that staff recommendations 2,3&4 have no timeframe associated for completion.

Chair Chesley responded that typically that when things are set as conditions on a CUP they have to be met at the time the permit is issued unless otherwise specified. City Planner McKibben concurred.

VOTE (Main Motion): YES: UNANIMOUS CONSENT

B. Staff Report PL 05-48 CUP 05-08 Norvell, Request For Approval of More Than One Building Containing A Permitted Principal Use on a Lot as Permitted by HCC 21.48. 030(k) Located at 378 E Pioneer Avenue, Lot 14, Block 3, Glacier View Subdivision Supplemental Plat.

HESS/KRANICH MOVED TO ACCEPT STAFF REPORT PL05-48 WITH CONDITIONS, FINDINGS AND THE FOLLOWING STAFF RECOMMENDATIONS:

1. The applicant and Mr. Marshall will add landscaping at the front of the building where the restaurant will be located as depicted in the site plan as well as along the eastern lot line to meet HCC 21.48.060 (h).

2. The applicant will work with Public Works department to assure appropriate size water and sewer service on the site for the proposed restaurant use.

3. The project will meet all other applicable local, state and federal requirements.

City Planner McKibben stated that staff addressed the parking in the same manner as the previous one in that there are mixed uses on the site. Because of the small size of the retail Bath Shop and the Day Spa in the smaller building, their combined parking is four spaces and the restaurant is recommended to have ten for a total of 14 spaces are required. Another factor that was looked at is that the Bath Shop and Day Spa hours of operation are primarily during regular business hours and the restaurants are going to be primarily during dinner hours.

Tanya Norvell, owner of the building, commented that it has been a good experience working with staff, they have been very helpful. She pointed out that the building was in place before the changes, as Mr. Yourkowski, and is being asked to pay an additional fee for a CUP for buildings that already existed. It is a monetary problem. She understands that the Commission does not deal with that issue, but wanted to make public comment regarding it because she thinks it is unfair to retroactively assess someone for something that existed previously to a new law. She commented that Mr. Marshall, the lessee, has gone out of his way to try to make this work, as have the others on the lot. She is here to answer any questions they have for her. She further commented that there appears to be a fair amount of space behind the building, the problem is that it is at an extreme slope.

Phil Marshall, the lessee and owner of the Driftwood Rotisserie and Grill, he commented that Mrs. Norvell and the Commission have discussed a lot of the pertinent issues. He provided photos to the Commission of the view of the back lot and the east boundary.

HESS/KRANICH MOVED TO ADD TO THE FINDINGS ON ITEM F THAT THE COMMISSION ACCEPTS THE PARKING AS PERMITTED BY HCC 7.12.020 ITEM 20 MIXED USES AS PROPOSED BY STAFF.

There was no discussion.

VOTE: YES: UNANIMOUS CONSENT

Motion carried.

Commissioner Lehner questioned the differences in the parking on the plan in the packet and the one provided in the laydown.

City Planner McKibben replied that all drawings include more parking than proposed. The code requires certain distances in backing spaces and those are difficult to accommodate with the layouts provided, that is why staff is recommending less spaces than what is drawn in.

Commissioner Kranich asked if the applicant puts in the additional parking spaces up to 17, will that trigger the requirement for landscaping from the Community Design Manual.

Chair Chesley replied that is a good point, but the Commission is not approving the site plan in this action, only the staff recommendation of 14 spaces.

There being no further discussion Chair Chesley called for any opposition on the main motion.

City Planner McKibben stated that this is a quasi-judicial action, so a roll call vote is required.

VOTE: YES: LEHNER, HESS, FOSTER, CHESLEY, CONNOR, KRANICH

Motion carried.

There was question as to whether the vote should be retaken on the previous CUP and after a brief recess it was agreed that the Commission would handle it through a motion to reconsider later in the meeting.

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.

A. Staff Report PL 05-49 Re: Scenic View Subdivision No. 12 Preliminary Plat.

KRANICH/ LEHNER MOVED TO ADOPT STAFF REPORT PL 05-41 BY READING OF TITLE WITH THE FOLLOWING STAFF RECOMMENDATIONS:

1. Dedication of a ten-foot utility slope easement along the eastern edge of the subdivision adjacent to Adams Drive.

2. Provide a thirty-foot drainage easement on the western boundary of the subdivision over the existing drainage.

3. Dedicate the radius return at the southeast corner of the subdivision.

Roger Imhoff, surveyor stated that he was available to answer questions. He commented that he did not have any concerns with the staff report.

Commissioner Connor questioned what the degree of slope is on the lot. Mr. Imhoff replied that it is gently sloped; he imagined less than 10%.

Commissioner Lehner commented that Adams Drive is going to be the main access route to Jack Gist Park; she anticipates that there will be a lot of people who use the bike trail to get to the park. She recommended that they add to one of the utility easements the dual use of trail and utility or trail and drainage as an amendment.

Mr. Imhoff responded that the drainage easement would be totally inappropriate for any trail. He does not believe the owner would have a problem granting an overlapping easement, he believes it would be up to the utility company if there was a potential conflict. It has been brought to the surveyors attention that overlapping trail easements or dedications in utility easements are a conflict as far as HEA is concerned; their legal advise that they have been getting is that they cannot legally use the utility easement if it is overlapped by a trail easement. It has to be set off to the side.

There was discussion regarding the size of the right-of way easement along Adams Drive. It is 60 feet at the widest and narrows down to 50 feet. This property was subject to a ten-foot taking by DOT to widen it.

Commissioner Hess commented that HEA would be discussing the joint use of trails becoming a policy.

Commissioner Kranich commented that Mr. Imhoff’s letter in the packet states that a 15-foot utility easement is going to be granted along Adams Drive, but the staff recommendation is only for 10 feet. He suggested it be upped on the staff report to agree with the engineers plan.

LEHNER/CONNOR MOVED TO HAVE A 10-FOOT UTILITY EASEMENT AND A FIVE FOOT PEDESTRIAN EASEMENT ALONG ADAMS DRIVE.

City Planner McKibben stated in response to Commissioner Kranich’s point that the staff recommendation should be consistent with the Public Works recommendation above, so what the staff recommendation should require is that a 10-foot wide slope easement within the 15-foot utility easement along Adams Drive.

Chair Chesley brought the Commission back to the pending motion by asking for discussion.

Commissioner Hess suggested voting the current motion down to have the opportunity to clean up the issue. The Commission was in agreement.

VOTE: NO: CHESLEY, CONNOR, LEHNER, KRANICH, HESS, FOSTER

Motion failed.

Chair Chesley came back to the City Planner’s comments regarding the language she had proposed.

HESS/LEHNER MOVED TO AMEND STAFF RECOMMENDATION 1 TO READ “DEDICATION OF A 10-FOOT WIDE SLOPE EASEMENT WITHIN THE 15-FOOT WIDE UTILITY EASEMENT ALONG THE EASTERN EDGE OF THE SUBDIVISION ADJACENT TO ADAMS DRIVE.”

There was no discussion.

VOTE: YES: CONNOR, HESS, KRANICH, FOSTER, CHESLEY, LEHNER

Motion carried.

LEHNER/CONNOR MOVED TO DEDICATE A TRAIL EASEMENT ADJACENT TO THE UTILITY EASEMENT ALONG ADAMS DRIVE.

Commissioner Kranich and Chair Chesley clarified that this she is asking the property owner to give up and additional five feet in addition to the 15 feet that already there. Ms. Lehner agreed.

Commissioner Hess commented that if HEA changes their policy and begins to allow joint use easements and if that is the case the property owner may be more amenable to allowing a joint use.

There was discussion to reword the motion to say if applicable within the 15-foot easement to leave it open if it changes. City Planner McKibben stated that the utility easement is within the 20-foot setback of Adams Drive.

Commissioner Connor pointed out that in the Borough subdivision code 20.20.170 it says that pedestrian ways not less than eight feet wide shall be required in blocks longer than 600 feet where reasonably deemed necessary to provide circulation or access to schools, playgrounds, shopping centers, transportation or other community facilities.

Mr. Imhoff recommended that whatever plat note the Commission came up with to add the wording “at the time of construction of the trail” that way if HEA has revised their policy then the easements can overlap.

FOSTER/LEHNER MOVED TO AMEND THE AMENDMENT TO RECOMMEND AND EIGHT-FOOT PEDESTRIAN EASEMENT IF POSSIBLE WITHIN THE UTILITY EASEMENT.

There was no further discussion.

VOTE: YES: LEHNER, HESS, FOSTER, CHESLEY, CONNOR, KRANICH

At request of the Chair, Deputy City Clerk Jacobsen read the motion back to the Commission with Mr. Foster’s amendment.

VOTE: YES: CONNOR, LEHNER, KRANICH, HESS, CHESLEY, FOSTER

Chair Chesley called for any further discussion on the main motion.

Commissioner Kranich asked, now that the amendment is done, what if it is not possible within the utility easement.

Commissioners Hess and Lehner responded that the Borough Subdivision Code requires it.

VOTE: YES: FOSTER, CONNOR, CHESLEY, LEHNER, KRANICH, HESS

Motion carried.

B. Staff Report PL 05-50 Re: Glacierview Subdivision No. 25 Preliminary Plat.

CONNOR/LEHNER MOVED TO ACCEPT STAFF REPORT PL 05-50 BY READING OF TITLE WITH THE STAFF RECOMMENDATIONS:

1. Dedicate an additional 5-foot right-of-way on the western lot line adjacent to Platt St.

2. Correct or remove the first plat note.

Patrick Church, surveyor, stated the reason for the vacation is to maximize the usable area by combining the lots because of the terrain. Mr. Church addressed the Public Works request of an additional five feet of right-of-way to be dedicated to have the full 60 feet of right-of-way (ROW) for Platt Street. He advised the Commission that Mr. McGreenery, the applicant, has an idea of placing a 14 x 70 foot mobile home on the parcel with the lot line vacated, but he will not be able to meet the setback requirement on the east lot line if he loses the five feet for the ROW.

Thomas McGreenery, applicant, pointed out his lots on the map provided by the Planning Department. He stated that Lot 9 is a standard 60x100 foot lot and Lot 10 is a 35.3x100 foot lot. He is planning to put the mobile home in an east west fashion. It is not practical to put it north south because the steep slope of the terrain would require over 540 yards of fill and a retaining wall.

Mr. Church commented if they were creating more lots it might be appropriate to give up the five feet requested by Public Works, but in this case he does not see the need. He reiterated that without granting the additional five feet for the ROW, Mr. McGreenery will have a five foot set back from the east side of Lot 9 and will still make the 20-foot setback on Poopdeck Trail. If he loses the five feet, he will not make the 20-foot setback.

Commissioner Foster asked if Mr. McGreenery owned Lot 8 as well. Mr. McGreenery replied that he does, that is his residence, 381 Klondike.

KRANICH/LEHNER MOVED TO AMEND STAFF RECOMMENDATION TO DELETE THE PLAT NOTE REGARDING KACHEMAK DRIVE ACCESS AND CORRECT THE STREET NAME ON THE WEST BOUND END.

Commissioner Hess pointed out that staff recommendation two is to correct or remove the first plat note.

VOTE: YES: CHESLEY, CONNOR, LEHNER, KRANICH, HESS, FOSTER

Motion carried.

HESS/LEHNER MOVED TO REMOVE STAFF RECOMMENDATION 1.

Commissioner Hess commented that he believes that the fifty-five feet will be sufficient.

Commissioner Lehner commented that the way it jogs, there may not be sixty feet on any portion of the Poopdeck Trail.

Chair Chesley commented that while he is not taking a position either way, he pointed out that as these come up they start acquiring the ROW so they will have the full 60 feet.

VOTE: YES: CONNOR, HESS, KRANICH, FOSTER, CHESLEY, LEHNER

VOTE (Main motion): FOSTER, CONNOR, CHESLEY, LEHNER, KRANICH, HESS

C. Staff Report PL 05-51 Re: Bay View Subdivision Adair Replat Preliminary Plat.

HESS/LEHNER MOVED TO ACCEPT STAFF REPORT PL 05-51 BY READING OF TITLE WITH THE FOLLOWING STAFF RECOMMENDATION:

1. Dedicate the radius return at the southeast corner of the subdivision.

City Planner McKibben noted a correction on the staff report that applicant Paul Voeller is from Anchor Point, not Homer. She added that the surveyor requested an additional plat note be added that would read “The 20-foot wide alley easement centered on the back lot was vacated by action of the Kenai Peninsula Borough Plat Committee at its meeting on August 6, 1979. Said vacation is referenced on KPB resolution 79-1 and recorded in book 108-649 HRD.”

Paul Voeller stated that this is not a subdivision by City definition, and therefore does not have to conform to HCC 22.10.050 Improvement Requirements or HCC 22.10.051 Utility Easements. He continued that this is a reduction in density, four lots, common ownership, they are moving lot lines. The streets are paved, the culverts are in, power, water and sewer are in. By honoring staff recommending staff recommendation 1 and dedicating the radius return, it creates a subdivision and transferring title to a piece of property to public use and it is subject to the above mentioned code requirements.

Chair Chesley and City Planner McKibben disagreed and stated that the code is very specific that a subdivision is creating additional lots.

Mr. Voeller continued that they are transferring title and changing the boundary lines and it comes under a survey and monumentation issue, which he is not trying to avoid, he just doesn’t see the reason for this request. There is no City code or precedent for that. The amount of land need is a trivial amount, but because the road and drainage are developed he does not see any justification for the request. He requested that the Planning Commission approve this preliminary submission and not consider the staff recommendation 1.

Commissioner Lehner confirmed that Mr. Voeller’s reasoning removing the staff recommendation is to avoid triggering dedicating right-of-way that would require acceptance by the City and Borough.

City Planner McKibben cited HCC 22.10.030(b) and Chair Chesley pointed out that code does not implicate what Mr. Voeller says that it does. He stated that the Commission can affirm the staff interpretation of that so the issue can be set aside.

There was discussion of adding verbiage to the staff recommendation that the dedication of these radius returns does not constitute a subdivision. City Planner McKibben wasn’t sure that was necessary, she feels that the definition in code is clear.

Mr. Voeller reiterated that he believes once you change the original boundary of the platted subdivision, you are cutting off a piece and creating a subdivision even though it is going to public use.

KRANICH/LEHNER MOVED THAT BASED ON STAFF DETERMINATION OF HCC 22.10.030(B) THE PLANNING COMMISSION FINDS THAT BY TAKING ACTION THIS DOES NOT CONSTITUTE A SUBDIVISION.

There was no discussion specific to this amendment.

VOTE: YES: LEHNER, HESS, FOSTER, CHESLEY, CONNOR, KRANICH

Motion carried.

Mr. Voeller questioned how the amendment will affect anything at the Borough level. Chair Chesley replied that this Commission makes their determinations and recommendations, but can’t speak to what the interpretation of the Borough will be.

The Commission had discussion regarding the reasoning of the radius returns. It was established that it takes the sharp corner and creates a curve.

LEHNER/HESS MOVED TO DELETE STAFF RECOMMENDATION 1.

Commissioner Lehner commented that she does not see a justified reason for this.

Chair Chesley commented that it would be helpful to have more information regarding these overall policy items that deal with improving rights-of-way to allow more of a systematic approach. This is something that has not come up before. He continued that this is probably an area where they have had problems before and perhaps this is the first opportunity to address it.

Commissioner Kranich commented that if the lots lines are accurate on the overhead photo provided by Planning, that an issue for Public Works may be that they encroach on the corner of Douglas and Lakeshore when cleaning the ditches. The plat shows lots 55 and 31 do not have radius returns. On one hand he can see where Public Works would want them on the one corner, but there aren’t any on the other side of the street either.

VOTE: YES: KRANICH, FOSTER, LEHNER, HESS, CONNOR

NO: CHESLEY

Motion carried.

VOTE (Main Motion): YES: CONNOR, LEHNER, KRANICH, HESS, CHESLEY, FOSTER

Motion carried.

Chair Chesley called for a recess at Commissioner Kranich’s request at 9:45 p.m. The meeting resumed at 9:50 p.m.

D. Memorandum Re: Staff Report PL 04-104 Re: Tsunami View Subdivision Preliminary Plat – Postponed 12-1-04 & 12-15-04 & 3-16-05 & 4-6-05.

City Planner McKibben clarified that there is a motion on the floor that was postponed from a previous meeting. She directed the Commission to a laydown item from Ability Surveys that includes a letter and revised preliminary plat that shows drainages and slopes in excess of 30 percent. Ms. McKibben continued that the staff recommendation was to provide necessary information regarding flood protection measures and she has been working with Christy Miller, Certified Floodplain Manager on this. Ms. Miller indicated that areas that have been shown to have experienced flooding or land sliding would be shown. Mr. Nelson of Ability Surveys has shown the drainages and Ms. McKibben worked with the Borough Public Works to obtain photos of the landslide that has occurred behind the hospital. The Borough Public Works suggest Ms. McKibben contact Jack Cushing, PE, who came to visit the site. Ms. McKibben explained to Mr. Cushing what she was looking for and why. Mr. Cushing replied that the previous landslide occurred entirely on the hospital property and none of it occurred on the site that is proposed to be subdivided. The staff report includes evaluation with regard to the All-Hazard Mitigation Plan. The All-Hazard Mitigation Plan identifies the hospital as a critical facility and indicates that it could be at risk from landslides. Further, the Borough Coastal Management Plan speaks to mass wasting and avalanche hazards, however the All-Hazard Mitigation Plan doesn’t include any specific actions or recommendations for actions in addressing landslides or critical facilities. Working with the tools that are available, HCC 12.12 Flood Damage Prevention, she cited 12.12.040(a)(4) for the subdivision requirements. She said additionally there was a potential flooding study done in 1978 that talks about bluffs north of city limits. FEMA will support that the provision does not specify that flood elevations be developed only for mapped areas. Local floodplain management administrators must take into account all hazard to the degree they are known it the community which is the link to showing the landslides.

Gary Nelson, surveyor with Ability Surveys, said he was just notified today that this was back on the agenda. He worked with Ms. McKibben to address the concerns and put the letter together that was presented as a laydown item. He noted the additions of the sloped on the plat in order to alleviate some of the concerns. Mr. Nelson mentioned that there were two 100-year flood events three years ago and there were no landslides on this property. The landslide that happened at the hospital was man induced. In the middle of construction, they excavated a 30 to 50 foot vertical cut in the side slope of that hill with no retaining on it. There was rain for two or three days and there happened to be a drainage from up above that came right over the top of their cut so all the water drained into that cut and saturated their soil so that it sloughed. The vertical cut was only intended to be there for five to ten days until they could get the building built, then they were going to back fill it and the cut would no longer be there, it would be supported instead. Mr. Nelson expressed that it was a man created event. Their excavation was very dramatic with the vertical cut in that hill, you might say they were just asking for trouble and were hoping that it wouldn’t rain while they were doing it, but it did rain.

Commissioner Foster asked for clarification of where the legal access is for Lot 1. Mr. Nelson replied that the legal access is as platted. He continued that the only reason they made it a flag lot is so that Lot 1 could have code required legal access. The physical access will be from the driveway on the adjacent lot, which the property owner and her dear friend purchased specifically to get access by reserving an easement from the driveway.

Commissioner Lehner confirmed that once they have that easement, they will have legal access to Lot 1 that otherwise would have been along the flag lot. She questioned why the flag lot is necessary.

Mr. Nelson replied that state law requires that all lots created must have frontage on a dedicated public right-of-way.

Commissioner Foster questioned the area down below on Lot 2 where the slope is not in excess of 30% on the lower lot if there is enough room to build on the lot when the setback are taken into consideration.

Mr. Nelson voiced his opinion there are quite a few ways the lower lot could be developed without a severe impact.

City Planner McKibben brought the Commissions attention to plat note 2 on the preliminary plat having to do with road construction in areas exceeding 30% slope.

Commissioner Foster asked for clarification of what staff recommendations are that they are approving.

City Planner McKibben read from Staff Report PL 04-104 the following:

1. Provide and show access to a fifteen-foot utility easement pre HCC 22.10.051 on the plat.

2. Plat note be added stating: Driveways providing fire department access must meet applicable standards.

In reference to staff recommendation 1, Mr. Nelson apologized for not having shown it on the revised plat. He said it would likely be put along the south boundary of Lot 2 because there is an existing power line there. City Planner McKibben concurred that met the intent of the staff recommendation.

Commissioner Kranich commented in reference to staff recommendation 2, that his concern that they have to base their determination on the access that is provided on plat that is before them, not on what the owners are planning to do. If the driveway that is going to go up the east side of the property to access the upper part of Lot 1 meets fire department standards, that is what he would like to know.

Chair Chesley commented that again, the purpose of the flag lot is to meet requirements of state code, even though access is never going to happen that way.

Mr. Nelson continued that it is fairly common to do legal access in one area and real access in another area. This is just another example.

There was discussion about at what point is it considered taking of a property when allowing for a subdivision to occur where there are lots that can’t be developed the way the purchaser wants to do it. Then they come in and claim that they can’t build because of the restriction. At the point of subdivision is when you can address those concerns. It was pointed out that in the surveying community they have a code of ethics they have to meet in terms of making sure that the plats they propose meet all the requirements.

City Planner McKibben commented that the City and Borough Code do not require that the platted access be constructible.

Chair Chesley commented that in the All-Hazard Mitigation Plan the hospital is defined as probably the most critical life support facility in the community. It needs to be protected from man-made impacts as well as natural impacts. He commented to Mr. Nelson that their concern is that development activity up there could create a situation as was described earlier where the man-made activity combined with an act of nature that created a bad situation.

Mr. Nelson commented that the new plat note 2 should alleviate a lot of those concerns. He continued that they have gone beyond the code requirements in requiring a geotechnical study and a hydrologic study. He asked, what if a person wants to buy this beautiful Lot 1, maybe they only want to walk into it, and maybe they only want a little log structure with the most beautiful view. Maybe they want it for summer time use to walk into or use their ATV to get in to it. There are a lot of people who live a little different then we may live and if you start making laws that prohibit that, you are denying them those freedoms.

Commissioner Hess said that plat note 2 addresses roads, but not other development and the impacts they have on the steeper slope.

Commissioner Kranich suggested that adding to the plat note, after roads, “and other development”.

HESS/KRANICH MOVED TO AMEND PLAT NOTE 2 ON THE REVISED PLAT RECEIVED ON MAY 4, 2005 TO INCLUDE ROADS AND OTHER DEVELOPMENT.

Chair Chesley read the plat note 2 again and questioned if it should say approved by City of Homer since part of it would be Planning’s responsibility and some would be Public Works.

HESS/KRANICH MOVED TO AMEND HIS MOTION TO AMEND THE WORDING AT THE END OF PLAT NOTE 2 FROM “THE HOMER PUBLIC WORKS DIRECTOR” TO “THE CITY OF HOMER”

There was no further discussion.

VOTE: YES: CONNOR, HESS, KRANICH, FOSTER, CHESLEY, LEHNER

VOTE: YES: CHESLEY, CONNOR, LEHNER, KRANICH, HESS, FOSTER

Commissioner Connor questioned of the flood protection measures have been met. City Planner McKibben replied that Christy Miller, the Floodplain Manager, suggested the proper way to do this is to identify areas that have experienced flooding or landslides, in case there have been no flood events on this property. Showing drainages, which wasn’t done previously, is appropriate as they are a site for potential flooding. The code does require setbacks from drainages. HCC 21.44.050(b)(2) a minimum of fifteen feet shall be provided between any structures and the top of the bank of the defined channel.

VOTE (Main Motion): YES: CHESLEY, KRANICH, HESS

NO: FOSTER, CONNOR, LEHNER

Motion failed for lack of a majority.

Chair Chesley called for a recess to determine how to handle reconsideration for a tie vote.

It was determined that the motion failed and therefore a Commissioner who voted no would have to make the motion for reconsideration.

FOSTER/LEHNER MOVED TO RECONSIDER.

VOTE: YES: CONNOR, LEHNER, KRANICH, HESS, CHESLEY, FOSTER

Chair Chesley asked to hear from Commissioners who voted no to see if there is some deficiency that can be corrected that could allow them to make a yes vote or state their findings to support their no vote.

Commissioner Lehner stated that her concern is the safety of the hospital. The possibility of human error with respect to initiating some kind of disturbance that could ultimately affect the hospital has to be their highest concern. This is creating a higher density development on a slope that is in a critical location. She cited Borough Code 20.04.010 to support her finding.

Commissioner Connor cited HCC 12.12.010 (i) the definition of critical facility includes the hospital. Approving this plat would be contrary to the indication of the definition.

Chair Chesley asked for something more specific. He doesn’t believe that a finding can be based on a definition.

Commissioner Lehner commented that findings can be broader than simply reference to code. She suggested findings that the All-Hazard Mitigation Plan with respect to landslides, mass wasting and avalanche hazards would contraindicate approval of the plat

Chair Chesley read an excerpt from Lee Sharp, Findings, What, Why and How for the Commissioners to consider for their findings.

1. Findings help the decision making body to focus on the statutory or ordinance elements that must be shown in the particular case before the body.

2. They give the parties a clear statement of the boards decision sot hey may analyze whether or not an appeal is appropriate. In addition, they eliminate the need for an appellate body to speculate as to the basis for the decision that is appealed.

3. Findings are a statement by the board that show the reasons for its decision to grant or deny the entitlement. It is a roadmap that shows the reasoning process that got the board from the evidence presented to its final conclusion to grant the entitlement. Findings should set the relevant facts found from the evidence presented. They should relate these facts to the conditions that must be proved or standards that must be met. They should state whether the relevant condition or standard is shown by the identified facts to have been met or not and state whether all necessary elements have been sufficiently shown. If there was no evidence given that shows facts that are needed to prove one or more of the necessary elements this lack of necessary evidence should be stated. The findings would then go on to state whether the entitlement is granted or denied.

Commissioner Foster cited Borough Code 12.12.040 (4)(a), (c), (e). His concern is that if development occurs on Lot 1 there is, in theory, a buffer, if nothing happens on Lot 2 by dividing it and having twice as much development on the lot.

Commissioner Hess interjected that there is no development on the lots though and the platting action is entirely different from the development action.

Commissioner Foster responded that they are setting up a density concern and if you don’t look at it at the time it is being subdivided, then they are making lots that can be built upon.

The Commissioners continued to discuss what could potentially happen and the fact that there are other protections down the road if development ever happens. Zoning and development issues are not handled at the platting level. A template for development, density and the effect on the public, health, safety and welfare are the things they are concerned with at the platting level. It was pointed out that the plat notes address the health and safety concerns.

Commissioner Hess pointed out that there is nothing less developable of the lot as a whole than if it is subdivided.

Chair Chesley pointed out again that plat note 2 with the geotechnical and hydrologic study sets a higher standard than there has ever been on a development. If someone went in to develop that right now as it sits, it would be at much less of a standard of oversight than if the plat is approved with the plat notes attached. A much higher benchmark of accountability is set for the developer.

Mr. Nelson summarized the geotechnical and hydrologic study to be that an engineer would determine what kind of surface run off would occur there and where it would focus and channel to, so there would be retention ponds to stop too much or too fast of a run off. It is channeled and provided for with adequate culverts. He reiterated that during the year when there were two 100-year flood events in one month, there was no adverse impact to the hospital from this property. The studies will show what kind of soils there are so you build for the soils and makes sure that you have drainage provisions so that the water does not sheet off too fast.

There was more discussion repeating the same issues and concerns that have been brought up throughout this discussion. There was also discussion regarding adding restrictive language for development in the areas of the drainage ditches.

FOSTER/LEHNER MOVED TO ADD AN ITEM 3 ON THE PLAT NOTES THAT a minimum of fifteen feet shall be provided between any structures and the top of the bank of any defined drainage.

Commissioner Foster commented he would be willing to support the plat if this amendment passes.

VOTE: YES: lehner, hess, foster, CHESLEY, connor, kranich

Motion carried.

VOTE (Main Motion): YES: KRANICH, FOSTER, CHESLEY, HESS

NO: LEHNER, CONNOR

Motion carried.

COMMISSION BUSINESS

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

A. Staff Report PL 05-45 Re: Proposed Ordinance 04-52 Amending HCC 21.48 Central Business District 21.48.060 (h) Landscaping Requirements, and Section 21.49 General Commercial 1, 21.49.060 (h). Postponed

The Commission agreed to schedule the public hearing for the next regular meeting on May 18.

HESS/KRANICH MOVED TO POSTPONE ITEMS B,C AND D UNTIL THE NEXT SCHEDULED MEETING.

VOTE: YES: UNANIMOUS CONSENT.

Motion carried.

B. Staff Report PL 05-46 Re: Proposed Amendment to HCC 21.45.040 (b) Dimensional Requirements (b) Building Setbacks (1). Postponed

C. 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

D. Staff Report PL 05-38 Re: Proposed Amendment To Homer City Code Re: More than One Permitted Principle Use on a Lot. Postponed

E. Staff Report PL 05-52 Request for Commission Acceptance of Nonconforming Use For 3571 Sterling Highway, University of Alaska, Legal Description: SW1/4 SE1/4 NW1/4 & SE1/4 SW1/4 NW1/4 South of Sterling Highway

HESS/LEHNER MOVED TO ACCEPT STAFF REPORT PL 05-52 WITH STAFF RECOMMENDATIONS BY READING O F TITLE.

Mitch Hrachiar, borough resident, commented that it is his understanding that this vote is to accept a non-conforming use based on submittals from the geophysical institute. Mr. Hrachiar said he had done some research. He submitted a more current photo of the site and pointed out that it is very different from the one in the packet. At the time of annexation it was his understanding that the non-conforming issues but it wasn’t done. It is his understanding that this property has been sold. The staff report states that they have an easement, but there is no reference to a recording or no evidence that an easement does exist. He suggested Planning review that. Mr. Hrachiar noted that the current structure does not have lighting and requested that the Commission add that there be no lighting added.

City Planner McKibben pointed out in the letter from the Geophysical Institute states that the FAA does not require towers under 100 feet to be lighted, thus the 80 foot tower will not have a warning light attached and have indicated that they do not intend to have a light.

Mr. Hrachiar brought up the point again that there it is questionable as to whether or not the easement exists and he questioned who would be responsible for damages if the tower fell over. Mr. Hrachiar commented that he hopes the Coastal Project Questionnaire, stamped engineer plan and site plan be all approved before a zoning permit be approved. He believes that a new structure would need to be built to accommodate the new tower, so rather than expanding a structure, they are building a new structure.

Chair Chesley reminded the group that they are approving a conditional use in this action, not a zoning permit.

There was further discussion about work being done currently on the structure and brief comments made with regard to a photo of what appears to be a fuel tank partially buried in the ground.

Chair Chesley summarized Mr. Hrachiar’s concerns being that there be a stipulation that there be no lights on the tower and the inconsistencies of the documentation of the property easements. Chair Chesley pointed out that issue isn’t necessarily one for the Commission but appropriate for staff to make sure the applicant has the authority to be applying for the things they have been doing there.

City Planner McKibben added that the University of Alaska, Fairbanks owned the site when the towers were placed. She understands there is some transition going on and it would be completely reasonable for staff to require the university show that they have the right to use that property before authorizing the expansion of the non-conforming use. She doesn’t think it is inappropriate for the Commission to recognize the non-conforming, as it exists, whether it is expanded or not. There are questions that need to be answered before a zoning permit could be allowed.

Commissioner Hess commented that he does not see in the code where they are allowed to put any conditions on an approval of non-conformity.

City Planner McKibben suggested that the Commission recommends that staff require that no lighting be on the tower.

LEHNER/KRANICH MOVED THAT THE PLANNING COMMISSION RECOMMEND THAT STAFF PROHIBIT LIGHTING ON THE TOWER, ANTENNA AND/OR STRUCTURE.

VOTE: YES: CONNOR, HESS, KRANICH, FOSTER, CHESLEY, LEHNER

There was no further discussion.

VOTE: YES: CHESLEY, CONNOR, LEHNER, KRANICH, HESS, FOSTER

F. Staff Report PL 04-109 Re: Commission Work List – On-going.

The Commission agreed to add spit parking to the work list.

REPORTS

A. Borough Report

Commissioner Foster had no report.

B. Kachemak Bay Advisory Planning Commission Report

PLANNING DIRECTORS’ REPORT

City Planner McKibben stated that she is working on the contract for the impact analysis. She reported that a final draft was submitted and they reviewed it with Fred Meyer and significant changes are going to have to take place based on the revised site plan.

Chair Chesley said that he had hear Tom Gibbons, representative for Fred Meyer, state on the radio that he was planning to have his CUP application complete by the end of April.

City Planner McKibben said that is not going to happen and Fred Meyer is aware of that. They know that the contract hasn’t let for the community impact analysis and have been in on the discussions on the traffic impact analysis, so she does not know why Mr. Gibbons said that.

Chair Chesley commented that in a radio interview the City Manager had said that the Planning Commission that required two meetings from Fred Meyer for their revised site plan and the Planning Commission has made no such determination.

Ms. McKibben stated that it was staff that made the requirement.

INFORMATIONAL MATERIALS

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

A. Zoning Violation Table

It was noted that Kenton Bloom was still listed and it had been verified that he does not have a sign on his property. It was noted that he owns more than one property and while it is the tenant’s responsibility to get a sign permit, staff only has record of property owners.

COMMENTS OF THE AUDIENCE

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

There were no audience comments.

COMMENTS OF THE COMMISSION

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

Commissioner Hess commented that there are two parties who have requested that HEA establish a policy for joint use of their utility easements. He was not aware of the legal department opinions from HEA that Mr. Imhoff had mentioned, so he doesn’t know how that will unfold. He thinks it may be helpful for the City recognize the importance of this and write a letter of support, and the Borough as well. The Non Motorized Trails and Transportation Plan supports that concept.

The Commission agreed that they unanimously support the Non Motorized Trails and Transportation Plan and the recommendation for the overlapping trail easement and agreed that Mr. Hess could speak on behalf of the Commission at the next City Council meeting.

Commissioner Foster said he would bring it up at the Borough meeting as well. He thanked the Commission for the discussion that took place on the Tsunami View Subdivision.

Commissioner Kranich said it was a good meeting.

Chair Chesley asked that Planning Technician Eggertsen-Goff’s email make it into the next packet for discussion regarding the Residential Office sign ordinance. It was decided that they would discuss this at the next worksession. Mr. Chesley thanked Deputy City Clerk Jacobsen for her input on procedural items that she has been emailing to Mr. Chesley. He asked Ms. Jacobsen to speak briefly about abstentions.

Deputy City Clerk Jacobsen stated that the rule regarding abstentions is in the bylaws and encouraged the Commissioners to read it. In summary, a Commissioner can’t abstain with out approval of the rest of the Commission.

LEHNER/FOSTER MOVED TO RECONSIDER THE VOTE ON STAFF REPORT PL 05-53 YOURKOWSKI.

VOTE: YES: FOSTER, CONNOR, CHESLEY, LEHNER, KRANICH, HESS

Commissioner Lehner called for the question.

VOTE: YES: FOSTER, CONNOR, CHESLEY, LEHNER, KRANICH, HESS

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 p.m. The next Regular Meeting is scheduled for May 18, 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: