Session 08-08, a Regular Meeting of the Homer Advisory Planning Commission was called to order by Chair Kranich at 7:00 p.m. on April 2, 2008 at the City Hall Cowles Council Chambers located at 491 E. Pioneer Avenue, Homer, Alaska.

PRESENT: COMMISSIONER FOSTER, HESS, HOWARD, KRANICH, MINSCH, STORM, ZAK

STAFF: CITY PLANNER MCKIBBEN

DEPUTY CITY CLERK JACOBSEN

AGENDA APPROVAL

Chair Kranich stated that the applicant requested that the City of Homer Town Center Preliminary Plat be pulled from tonight’s agenda.

The amended 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 were no items for reconsideration.

ADOPTION OF THE 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 the Minutes of March 19, 2008

2. Time Extension Requests

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

4. KPB Coastal Management Program

5. Commissioner Excused Absences

MINSCH/STORM MOVED TO ADOPT THE CONSENT AGENDA.

Chair Kranich noted that he had typographical errors he would provide to the Clerk.

VOTE: NON OBJECTION: UNANIMOUS CONSENT

Motion carried.

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.

REPORTS

A. Borough Report

Commissioner Foster reported that Assembly member Martin brought an ordinance to the Assembly based on the legal access definition and requirements. The definition was a component of the previous road ordinance that failed. It is supposed to address some of the orphan rights-of-way that may not be connected to a road, but allow for a subdivision to occur because they are abutting the legal access. He hopes it will address some concerns with the plat waiver that does not allow for additional rights-of-way but may be hooked to a right-of-way that existed at one point, but is not constructible. It was also designed to address the Caribou Lake Subdivision that does not have adequate access. Access was going to be along section lines and it was not address what would happen when people reach the highway. He recommended the Commission look at it and said the City could have a definition that could be as restrictive, or even more so. It still leaves opening for areas like the other side of the bay where there isn’t a highway but is still accessible by air or boat.

B. Kachemak Bay Advisory Planning Commission Report

There was no Kachemak Bay Advisory Planning Commission Report.

C. Planning Director’s Report

1. Staff Report PL 08-41, Planning Director’s Report

City Planner McKibben reviewed her report. She added that David Cole, a geotechnical engineer with Dowl Engineers, will be doing a presentation regarding the steep slope ordinance at the next worksession and will do a formal presentation during the regular meeting.

Question was raised regarding permits and if a listing of permits that have been issued could be viewed on line. There was brief discussion that the permits are not always posted at the job site and sometimes the public isn’t aware of anything until construction begins. City Planner McKibben said she would look into posting the information on line. They discussed the timeframe and procedure for appealing a zoning permit as defined in HCC 21.68 Appeals.

PUBLIC HEARINGS

The Commission conducts Public Hearings by hearing a staff report, hearing public testimony and the 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.

A. Staff Report PL 08-35, Ordinance 08-XX, Of the City Council of the City of Homer Alaska, Amending Homer City Code, Chapter 21.32 by Adding a New Section Entitled “Dormitory” and amending Chapter 21.48, Central Business District, Chapter 21.49 General Commercial 1 and Chapter 21.50 General Commercial 2 by adding Dormitory as a Permitted Use.

City Planner McKibben reviewed the staff report.

Chair Kranich opened the public hearing. There were no comments and Chair Kranich closed the public hearing.

MINSCH/STORM I MAKE A MOTION TO ADOPT STAFF REPORT PL 08-35 THE ORDINANCE OF THE CITY COUNCIL ADDING A NEW SECTION ENTITLED DORMITORY.

City Planner McKibben read the amended definition the Commission discussed during the worksession as follows:

“21.35.150 Dormitory means a building or portion of a building that provides one or more rooms used for residential living purposes by a number of individuals that are rented or hired out for more than nominal consideration on a weekly or longer basis. A building or structure that provides such rooms on less than a weekly basis will be classified as a hotel or motel, rooming house, or other more suitable classification. Dormitory excludes hotel/motel, shelter for the homeless, and bed and breakfast. A dormitory for students may be included as part of an educational institution.”

ZAK/MINSCH SO MOVED TO AMEND THE DEFINITION.

There was no discussion to the amendment.

VOTE: NON OBJECTION: UNANIMOUS CONSENT.

Motion carried.

Question was raised if the final sentence indicates that the dormitory for students would not be considered a dormitory but would be considered an educational institution under the definition in code. City Planner McKibben said a dormitory for students can be included as part of an educational institution. She read the definition for educational institution that is in code. There was discussion about removing the sentence “A dormitory for students may be included as part of an educational institution.” Concern was raised about including the sentence and how it could be interpreted in relation to the rural residential district where schools are permitted.

FOSTER/ZAK I MAKE A MOTION THAT WE REMOVE THE LAST SENTENCE.

Commissioner Foster commented that while he supports the concept of the educational institution dormitories, he wants to foresee interpretation problems staff may have in regards to this. It could be troublesome if it has to be determined on a case by case basis.

VOTE: NON OBJECTION: UNANIMOUS CONSENT.

Motion carried.

FOSTER/HESS I WOULD LIKE TO MAKE AN AMENDMENT TO REPLACE THE WORD WEEKLY WITH THE WORD MONTHLY.

Commissioner Foster said his change is based on their discussion regarding residential purposes.

Concern was raised about sports teams or elder hostels that would use the facilities for less than a month in a pre-arranged manner.

STORM/FOSTER MOVED TO AMEND THE AMENDMENT THAT WE DELETE WEEKLY AND REPLACE IT WITH MONTHLY OR PREARRANGED BASIS.

There was no discussion.

VOTE (Secondary amendment): NON OBJECTION UNANIMOUS CONSENT.

Motion carried.

There was no further discussion on the primary amendment.

VOTE (Primary amendment as amended): NON OBJECTION UNANIMOUS CONSENT.

Motion carried.

City Planner McKibben read the amended verbiage and commented that it doesn’t make sense.

MINSCH/ZAK MOVED TO RECONSIDER THE AMENDED AMENDMENT.

There was no discussion.

VOTE: YES: FOSTER, MINSCH, HOWARD, STORM, ZAK, KRANICH, HESS

Motion carried.

The Commission discussed the wording of the amendment.

VOTE (Reconsidered primary amendment as amended): NO: STORM, HOWARD, MINSCH, ZAK, KRANICH, HESS, FOSTER

Motion failed.

STORM/HESS I MAKE A MOTION TO AMEND THE INTENT OF THE WORD WEEKLY BY DELETING ON LINE FOUR “WEEKLY OR LONGER” AND REPLACING IT WITH “MONTHLY OR PREARRANGED”.

Commissioner Storm noted that she is trying to find a way to accommodate other users like sports teams who would use it for less than a month and avoid nightly transit.

The Commission continued to discuss the terms of usage.

ZAK/HESS CALLED FOR THE QUESTION.

VOTE: YES: ZAK, KRANICH, HESS, STORM, HOWARD

NO: MINSCH, FOSTER

Motion carried.

VOTE (Primary amendment): YES: HOWARD, MINSCH, HESS, KRANICH, FOSTER, STORM, ZAK

Motion carried.

Commissioner Minsch stated that she would like Council to understand that they struggled with this terminology.

There was discussion regarding an employer who owns a dormitory and is using for a switch out crew and whether it would be considered that the dormitory is being rented or hired. It was noted that in some cases the housing would be deducted from an employee’s compensation, in other cases it isn’t. City Planner McKibben said she hasn’t had any experience with this situation. They continued to consider the differences between renting on a daily, weekly or monthly basis.

VOTE (Main motion as amended): YES: STORM, HOWARD, MINSCH, ZAK, KRANICH, HESS, FOSTER

Motion carried.

PLAT CONSIDERATION

The Commission hears a staff report, 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.

A. Staff Report PL08-39, Supplemental to Staff Report PL 08-36, City of Homer Town Center Preliminary Plat.

This agenda item was pulled at the applicant’s request.

PENDING BUSINESS

A. Staff Report PL 08-05, Conditional Fence Permit request for 4632 Kachemak Drive

City Planner McKibben reviewed the staff report.

Commissioner Foster announced that he has a professional and personal relationship with the staff member who has a byline on this report.

ZAK/MINSCH I MAKE A MOTION THAT COMMISSIONER FOSTER HAS A SITUATION OF PERSONAL INTEREST.

There was discussion regarding conflict of interest versus situation of personal interest.

Chair Kranich called for a short break at 8:10 p.m. The meeting resumed at 8:16 p.m.

City Planner McKibben noted that the current policies and procedure talks about situations of personal interest and they should be voted on.

VOTE: NO: ZAK, HESS, STORM, MINSCH, HOWARD, KRANICH

Motion failed.

Dale Kaercher, applicant, commented that he resides in Anchorage and the property on Kachemak Drive is a getaway property to enjoy their privacy. When they purchased the property it only had a garage on it and their intent is to turn it into a nice property. One thing they needed to do was seal off the highway as the cars speed by and you feel like you are in a fishbowl. With the location they are right on the ocean and they easily have three or four people per day stop by. They woke up one morning and someone had pitched a tent in the front yard. Since he put the fence up, it hasn’t been an issue. With regard to the comments on mounding it up, Mr. Kaercher noted that it is mounded, but it is fill. He referenced a photo he provided to show the slope of the lot and said they were trying to establish the level of the yard when they put the berm there. If he was going to use a berm to get a higher fence, he would have built up the berm and built a four foot fence. Mr. Kaercher commented that there are 7 fences including his, and all of the others are higher than his. He doesn’t have full use of the property without the fence. When they initially started they installed the posts that were originally about ten feet high, but they hadn’t been cut down when the complaint came in. It was never their intention to build a ten foot fence. Since then, they have received a letter from the neighbor that they support it. He disagreed with the first finding that the applicants have full use and enjoyment of the property with or without a fence. He said it is critical for them to have the fence as is explained in applicant comments on item a.

Mr. Kaercher reiterated his issue of having an open lot with an access to the beach and having people stop at his lot. It is not a situation that most people have here where people come and camp in your front yard. It is a different situation.

Commissioner Storm asked for clarification regarding the photograph of the mound and its relation to the top of the road. He confirmed that the top of the mound is still below the level of the road.

He confirmed that the photos are of the five foot fence, he did cut it down from six feet. He has planted trees in an effort to soften the fence and get as much privacy as he can out of the property. He trimmed the fence as far as he could and still maintain privacy; he referenced the first photo noting that at four feet, the fence would not provide adequate coverage for privacy or security. He asked that if the Commission doesn’t approve the fence, if they would consider allowing it until his trees fill in.

MINSCH/HESS I MAKE A MOTION WE ADOPT STAFF REPORT PL 08-05 CONDITIONAL FENCE PERMIT REQUEST FOR 4632 KACHEMAK DRIVE WITH STAFF COMMENTS, RECOMMENDATIONS, AND FINDINGS.

Commissioner Hess commented in reviewing the information and hearing the testimony where someone camped in the yard, he thinks there may be an argument that this may be a special circumstance.

Commissioner Foster agrees that there is issue regarding privacy but commented that this is not an unusual circumstance as he owns property on Kachemak Bay and he had people camping there until the house was built.

Commissioner Minsch said she lives on Kachemak Drive and people come up from the beach into the yard. That is just the deal that comes with living on the bay. She thinks that unless they are going to change the ordinance and allow everybody who feels they need privacy or wants to protect their plants from the moose and so forth there aren’t special or unusual circumstances in this case.

Commissioner Zak commented that in this circumstance, based on applicant comments, he thinks that there are some circumstances that allow a little more privacy.

Commissioner Howard expressed that the first finding is presumptuous and she wouldn’t feel comfortable saying that to the applicant. She thinks the effort to level the ground is a good faith effort and thinks the five foot fence is warranted.

There was discussion regarding previous actions regarding fences.

ZAK/STORM I WOULD LIKE TO AMEND ITEM A FINDING ONE TO SAY THAT THE APPLICANTS DO NOT HAVE FULL USE AND ENJOYMENT OF THEIR PROPERTY WITHOUT THE FENCE IN ITS EXISTING STATE.

Comment was made that stating the applicant has unusual circumstances that means everyone who lives along Kachemak Drive or along the bay in City limits that does not have trees or something blocking the view from the road has special circumstances or conditions. It would be easier to change the fence requirement on Kachemak Drive for everyone. Agreement that there should be a code amendment was expressed, but until then the conditional fence permit can be allowed.

VOTE (Primary amendment): YES: HOWARD, STORM, ZAK, KRANICH, HESS

NO: FOSTER, MINSCH

Motion carried.

FOSTER/MINSCH MOVED TO AMEND STAFF FINDING D TO SAY THAT THE FENCE APPEARS TO BE A PLANNED ARCHITECTURAL FEATURE HOWEVER BECAUSE OF THE SIZE OF THE LOT IT DOES APPEAR TO DOMINATE THE SITE.

Commissioner Foster commented that Commissioners Zak and Minsch voted in support of this last time.

There was brief discussion.

VOTE (Primary amendment): YES: MINSCH, FOSTER

NO: STORM, HOWARD, ZAK, KRANICH, HESS

Motion failed.

ZAK/HOWARD I MAKE A MOTION THAT WE ELIMINATE “AFTER THE SPRUCE BARK BEETLE OUTBREAK….” AND “AERIAL IMAGES FROM 2004 REVEAL MINIMAL VEGETATION ON SITE.”

There was brief discussion.

VOTE (Primary amendment) YES: HOWARD, HESS, KRANICH, STORM, ZAK

NO: MINSCH, FOSTER

Motion carried.

ZAK/STORM I MAKE A MOTION THAT WE ELIMINATE THE FINDING THAT SAYS “OCEAN FRONT PROPERTY IS NOT UNUSUAL IN HOMER….”

Commissioner Zak said he didn’t feel this applies to the circumstances that have been discussed. Commissioner Foster argued that there is supposed to be uniqueness about the lot to justify the allowance of the fence. Mr. Zak noted that this lot is much narrower with a lot less trees than a lot of other lots along Kachemak Drive, so maybe there is a little bit more incentive for people to cut across this property.

VOTE (Primary amendment): YES: MINSCH, ZAK, KRANICH, HESS, STORM, HOWARD

NO: FOSTER

Motion carried.

MINSCH/ZAK UNDER STAFF RECOMMENDATIONS AND COMMENTS I WOULD LIKE TO MAKE A MOTION THAT UNUSUAL OR SPECIAL CIRCUMSTANCES DO APPEAR TO EXIST, DELETE NOT, THEREFORE THE PLANNING COMMISSION APPROVES THE CONDITIONAL FENCE PERMIT.

Commissioner Foster said in light of the fact that the fence was built without a permit, has been up for a couple of years, and the idea that it if the public does not see the vacant field they are less likely to access it, they are going to go next door. We are going to see a lot more trespassing or we are going to see fences all along Kachemak Drive. The fences will probably be put up with out a permit because you can have them up for a couple years with out anyone doing anything and when they do get caught, they say they have a special circumstance and they can stay there, so what’s the point of the conditional fence permit and what’s the point of the ordinance.

Commissioner Hess disagreed that this does not mean that all fences in the future will be permitted. If this had been an eight foot fence it would have turned out differently.

VOTE (Primary amendment): YES: ZAK, HESS, STORM, MINSCH, HOWARD, KRANICH

NO: FOSTER

There was no further discussion on the main motion as amended.

VOTE (Main motion as amended): YES: KRANICH, STORM, ZAK, HOWARD, HESS, MINSCH

NO: FOSTER

Motion carried.

Chair Kranich noted for the applicant that the Commission did approve the conditional fence and advised them that the permit could be appealed.

B. Staff Report PL 08-40, Policies and Procedures/Bylaws

City Planner McKibben reviewed the staff report.

The Commission discussed the following:

· The adjournment time verbiage is included in the bylaws and should be included in the policy and procedures manual as well.

· The procedure for declaring Conflict of Interest.

· They need to know when the Rule of Necessity comes in to play.

· A Situation of Personal Interest compared to a Situation of Personal Bias.

· They need to know the best way for working with Commissioner Foster’s declaration of Situation of Personal Interest.

· Meeting attendance - A Commissioner who misses 3 meetings in a row or 6 meetings in a year would result in dismissal from the Commission.

· Commissioner participation in other venues.

ZAK/MINSCH MOVED TO POSTPONE FURTHER DISCUSSION ON THIS TO A FUTURE MEETING.

The Commission agreed to hold a worksession on April 22^nd at 6 p.m. and the Committee will meet at a time to be determined. It was requested that Commissioners forward their comments or suggestions regarding the Policy and Procedures Manual to City Planner McKibben by 8am on April 10^th.

VOTE: NON OBJECTION: UNANIMOUS CONSENT

Motion carried.

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 a non conformity).

A. Staff Report PL 08-42, Filling of Wetlands Draft Ordinance

City Planner McKibben reviewed the staff report.

MINSCH/ZAK MOVED TO POSTPONE THIS TO A FUTURE WORKSESSION TO BE DETERMINED BY STAFF.

There was no discussion.

VOTE: NON OBJECTION: UNANIMOUS CONSENT

Motion carried.

INFORMATIONAL MATERIALS

A. Kenai Peninsula Borough Planning Commission Notice of Public Hearing-Country Club Estates/Bullock.

B. Email dated March 20, 2008 to Ray Kranich, HAPC Chair from Bruce Hess, HAPC Commissioner regarding Planning Commissioner Rights.

C. Memorandum 08-41, Port and Harbor Commission Recommendation Regarding Spit Parking Issues.

COMMENTS OF THE AUDIENCE

Members of the Audience may address the Commission on any subject.

There were no audience comments.

COMMENTS OF THE COMMISSION

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

Commissioners Minsch, Howard, Storm, and Hess had no comments.

Commissioner Zak said he appreciates Commissioner Foster’s views and understands that we do have to be careful on actions we take in the future. He appreciates what we did tonight.

Commissioner Foster commented regarding the Board of Adjustments for the Borough that was included in the informational items. It will be back at the next Borough Planning Commission Meeting.

Chair Kranich comment that he saw an ad in the paper for Quiet Creek Subdivision lots for sale. He appreciates how people are working on things and coming up with good decisions.

ADJOURN

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 10:30 p.m. The next Regular Meeting is scheduled for April 2, 2008 at 7:00 p.m. in the City Hall Cowles Council Chambers. There is a worksession at 5:30 p.m. prior to the meeting.

MELISSA JACOBSEN, DEPUTY CITY CLERK

Approved: