Session 06-08, a Regular Meeting of the Homer Advisory Planning Commission was called to order by Vice Chair Hess at 7:03 pm on April 5, 2006 at the City Hall Cowles Council Chambers located at 491 E. Pioneer Avenue, Homer, Alaska.

PRESENT: COMMISSIONERS CONNOR, KRANICH, PFEIL, HESS, LEHNER,

FOSTER (arrived at 8:50 pm)

ABSENT: COMMISSIONERS CHESLEY (Excused)

STAFF: CITY PLANNER MCKIBBEN

DEPUTY CITY CLERK JACOBSEN

APPROVAL OF AGENDA AND 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 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 Programs Report

D. Commission Excused Absences

1. Dr. Rick Foster

KRANICH/LEHNER MOVED TO ADD ITEM D TO COMMISSION BUSINESS MEMORANDUM TO CITY COUNCIL REGARDING TECHNICAL REVIEW OF CHAPTER 8 OF HOMER CODE AND REVIEW OF ITINERANT MERCHANT FEES.

There was no discussion.

VOTE: NON OBJECTION: UNANIMOUS CONSENT.

Motion carried.

The amended agenda was approved by consensus of the Commission.

APPROVAL OF MINUTES

Commission approves minutes, with any amendments.

A. Approval of March 15, 2006 Regular Meeting Minutes

The minutes were amended and approved by consensus of the Commission.

PUBLIC COMMENT, PRESENTATION

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 approved by the Planning Director, the Chair or the Planning Commission. A Public Works representative may address the Planning Commission.

A. Staff Report PL 06-32, A Resolution of the City of Homer’s Public Arts Committee Requesting that the Planning Commission and Staff Consult with the Public Arts Committee Before any Permits are Issued and Construction Commences for Projects in the Town Center Area.

Bill Smith, citizen, comment in regard to the conditional use permit non conformance status for Safeway. He said he reviewed the letter from City Attorney Tans and pointed out Mr. Tans references an amendment to the City Code that was enacted in 2002, that was enacted in 2004.

In addressing Mr. Tans arguments, Mr. Smith commented that Mr. Tans says the nonconforming use under HCC 21.64 is primarily for the benefit of the property owner and confirms the property owner will continue to lawfully use the property and structures as they have been in the past. To say, thus, that they operated with out a conditional use permit, they may in perpetuity operate with out a condition use permit, even if they change something, doesn’t quite square with the process. There are other arguments that can be made, it seems like this is referring to the lack of a conditional use permit because of a change in code as something that deserves being recognized as a non conforming use is a dangerous sort of logic. In looking at the permitting process itself, other conditional uses, for instance, that the City currently has that are new to the Code would be setbacks less than 20 feet. Historically, because of different constructions with in the City and changing of lines in the City there are structures that are less than 20 feet, and they can be grandfathered in. Under those circumstances it could be said that they are not required to get a CUP because they can be recognized as a non conforming use. The same thing could apply for more than one structure having a principal use, as there are several in the City, some of which predate the Zoning Code. The Zoning Code now says you have to have a CUP for that situation. Pretty soon, following that logic, there will be circumstances where the City may just have to issue a Zoning permit for those uses and not look at other aspects of the code. Mr. Smith said Mr. Tans doesn’t address if the property owner changes anything, he just says “if they have been in the past”. In the instance of Safeway, they are looking at changing something and getting a permit to do that. Mr. Smith said the intent of the non conforming use is to protect uses and properties that were in use legally before the code changed, not to exempt properties from any further examination or in perpetuity relieve them from any responsibility of meeting code requirements.

Vice Chair Hess thanked Mr. Smith for his comments.

Asia Freeman and Mike Yourkowski from the Public Arts Committee (PAC) thanked the Commission for considering their resolution regarding consulting with the PAC before any permits are issued and construction commences for projects in the Town Center area. Ms. Freeman said the spirit of this is to integrate public art, begin to make it a viable and visible process and make it start here. She commented that they have an impassioned committee that wants to help edify Homer through its development of public art. Ms. Freeman added that the staff report provided a reasonable evaluation of their draft resolution and their points were well taken. Mr. Yourkowski expressed his appreciation of the staff comments in the staff report and recommended that the Commission approve the staff report to get everyone on board. He thanked the Commission for their consideration.

RECONSIDERATION

There were no items for reconsideration.

PUBLIC HEARINGS

The Commission conducts Public hearings by hearing a staff report, hearing public testimony and then acting on the Public Hearing items. The Commission may question the public.

A. Staff Report PL 06-31 Ordinance 06-20(A) An Ordinance of the City Council of the City of Homer, Alaska, Amending the Homer City Zoning Map to Rezone to a Gateway Business District (A SUB DISTRICT OF THE CENTRAL BUSINESS DISTRICT) Portions of Rural Residential (RR) and Portions of Urban Residential (UR) Zoning Districts Fronting on the Sterling Highway West Hill area to the South West Boundary of the Central Business District.

City Planner McKibben summarized the staff report and read the following staff recommendations:

· Staff recommends that the Commission consider public comments, staff recommendations and make a recommendation to Council.

· Staff recommends amending boundaries to include the Woodside area as identified in exhibit C.

· Staff further recommends the Planning Commission not recommend approval of the proposed ordinance and adopt findings supporting this.

· Staff recommends that the Commission recommend that further consideration of the ordinance be deferred until work is completed on the Scenic Gateway.

· Should the Commission decide to recommend approval of the proposed ordinance staff recommends that it be with the recommendation to amend the permitted and conditional uses and structures allowed within the proposed sub district as addressed in a separate staff report. Should the Commission choose to recommend approval of this proposed ordinance the Commission will have to adopt findings in support of this.

She reminded the Commission that the direction from the Council was that they hold two public hearings on this item, so no action is required tonight by the Commission.

Dr. Bill Marley, 1/3 owner of 14.5 acres of land in the affected area, passed around a photo that was taken when the acreage he is part owner of was heavily wooded. He spoke in favor of Staff Report PL06-31 Ordinance 06-20(A) as well as Staff Report PL 06-33 regarding Councilman Stark’s proposed ordinance to eliminate several things from the standard CBD. Dr. Marley stated he supports that the newly added CBD area abide by the Community Design Manual and all the new construction be similar to the new Alaska USA building. Two professional planners he has spoken with have indicated this could be written up in a clear and enforceable manner. This would create the opportunity to participate in a pleasing and aesthetic entry into Homer and be most complementary to our natural surrounding. Dr. Marley added that if the area were to be developed residential, the probability of it becoming attractive and appealing is small due to its proximity to the highway and it’s not a preferred location for residences. Regarding building heights, Dr. Marley pointed out that before the spruce bark beetle, his land has a forest of trees 50 to 60 feet high and there was absolutely no view as one passed by the property. Since removing the infested trees approximately 2,000 new trees have been planted on his property, which without development will grow and obstruct the view again one day. Dr. Marley stated that the 14.5 acres that he and his partners own is the only land within the confines of the City of Homer that is sizeable and approximates both the highway and the ocean. One would have to think that it would be a desirable site for a hotel/motel restaurant complex. He pointed out that Homer’s population is such that its annual growth nearly equals the population of the community when he and his wife moved here 39 years ago. Dr. Marley stated their interest is in quality growth and the development of a community we and our children and grandchildren can all be proud of in the future.

John Fenske, City resident, commented that he supports doing something with the area between the Bidarka and West Hill. Looking at the rezoning of this area brings up a broader issue of what the Central Business District is. Looking at the planning maps it is a concise piece of property with a focused parameter to it. It doesn’t branch out, making it look like an octopus, and he believes that is something the City does not want to have happen. Mr. Fenske urged that the Commission think more into the future and ask how can we expand the CBD and not lose the character of the CBD. He said that Kurt Marquardt had commented that there is infilling that yet needs to be done in the CBD, and that may be so but there are areas in the CBD that don’t lend themselves to commercial development, or there are better places for commercial development to take place, like this new proposed area. Mr. Fenske suggested the rest of the overlay area could be handled through design standards. Inside the West Hill line, building standards can do a lot for maintaining the Gateway look the City is trying to create. Mr. Fenske commented that another issue that will come along is the possibility of a through street running north of Pioneer Avenue. He said that will probably happen at some time and that area between Pioneer and the through fare is going to be more heavily commercially used. In talking about expanding the CBD, Mr. Fenske believes it should maintain a shape that does not have appendages and lend to the strip development that they are trying to eliminate. Mr. Fenkse commented in the Comprehensive plan it states that not only do we want to maintain aesthetics and help develop the commercial characteristic of the CBD, but we also need to think into the future. These other streets and developments are going to take place. We need in our planning package something to forewarn people that as the community grows, this is apt to happen in their neighborhood and that way people will see it out there. He doesn’t know if Dr. Marley is correct to say that there will not be any residential areas developed in the area, but from the highway to where the through street may run, Mr. Fenske said he can see some type of commercial development taking place. He thanked the Commission for their time and again asked the Commission to think about how this area is going to expand and not add areas in piecemeal.

Gary Hinkle stated he is a property owner in the area, but does not and has not resided in Homer. He commented that previously when he spoke, he did not come here to tell the City how to develop. After his comments he was soundly criticized and it wasn’t appreciated that he came here telling Homer how to build.[1] Mr. Hinkle stated he has been the owner of the property at the corner of Thomas Drive and the Sterling Highway for more than 20 years; he worked hard to get the assessments in there and behind the area. He removed the trees and stumps when the trees died and has tried to be a positive property owner in Homer. He has lived on the Kenai for more than 30 years, supporting himself and his family in real estate related business the whole time. He did not appreciate the unkind comments that were made against him, clarifying the comments were not made by staff and stating that he is a citizen and pays taxes. Mr. Hinkle commented that the rezone would be an enhancement to the community. He said the comment was made that the only reason he was here was because he wanted to increase the value of his land. Mr. Hinkle clarified that the reason he is here is that other people have initiated the zoning change, which he has supported for some time, and he was written and asked to come. He stated that he has done some research and found that he could develop his property residentially and it would increase in value as much or more so than if he developed it commercially. Mr. Hinkle commented that there are several reasons for the zoning to be changed. He doesn’t believe developing his property residentially would be good for the City of Homer. If the area zoned as Rural Residential were developed in that manner the result would for people to drive into Homer through a tunnel of walls being used as a sound barrier. He mentioned at the last meeting that he has been approached by four people over the last few years wanting to develop commercially, thinking they can get a zone change, and in over 20 years he has never had anyone approach him to develop residentially there.

Having clarified that increasing the value is not the reason for rezoning, Mr. Hinkle stated reasons he believes the zoning should change. The video that was shown at the last meeting shows what develops toward good planning and what creates undesirable communities. Mr. Hinkle commented that the video screamed that zoning, as it has been practiced in Homer, is developing the wrong kind of community and changing the zoning to commercial would develop the right kind of community. Mr. Hinkle explained that zoning needs to be in compliance with the market demand. If you try to force real estate to try to be developed in a way that is not consistent with the market, you end up with undesirable development because you end up with forced development, like a double wooden fence and houses against the highway. He further explained a result that people who own the land may do a low value job of developing, which takes away from the long term development of the land. Zoning should work toward having the land in a use that is compatible with the market, then there will be good planning and the development will be beautiful and compatible with the community. Mr. Hinkle said the idea of infilling is not a justification for locking other property in zoning and investors have told him, when trying to purchase his land, that there isn’t property available for their need. The best way the City could improve its commercial district, which has a number of non conforming buildings, and buildings that are antiquated and not of good economic use, is to change the zoning in the other area. If the zoning were changed on the highway it would only take a few attractive, properly developed structures and the commercial development in town would immediately start to improve. Mr. Hinkle stated that he wants his comments to be taken positively. He commented that an end result of not changing the zoning is to take away the civil right of the property owner to do their business. It is not good for the City to lock in properties so they can’t be developed.

When asked how he felt about a district that would encompass not only commercial uses but some mixed uses in a more up to date zoning district, Mr. Hinkle responded in favor of the idea. He referenced the area behind Safeway in Soldotna where houses were transitioned into businesses, and nice commercial buildings were added. He stated that he is unsure whether it would comply with the proximity of the highway, but it could work well.

Public Works Director Meyer arrived at 7:50 pm.

Bill Kahr, City resident, asked the Commission that the west side of Crittenden be included in the rezone. He explained that there is a lot of traffic in that area and he is interested in putting in a breakfast shop in the lower level of his home. He explained his reasoning is to increase his income to help pay when the road assessment comes in, along with the rising cost of living in the area and the rising property taxes.

Emmitt Trimble, a property tax payer in the City, spoke in support of both proposals. Because of the question of changing the zoning to CBD and some being resistant to the concept, he asked what is onerous of the CBD. If there is a problem with that as a zoning classification and the uses within, then it is a problem for the rest of the community that is currently zoned CBD. He understands there is now the possibility of restricting either the existing district or the new districts to eliminate certain aspects, like mobile home parks, car dealerships and things of that nature. If it can be identified that there is something onerous about the allowed uses in the CBD, then he would be in support of some modification of the zoning district. He is strongly in support of the logical expansion of the CBD that was addressed in the Comprehensive Plan as potentially the next location to expand up to West Hill. In listening to other testimony, Mr. Trimble pointed out that it opens up the possibility of expanding further into the residential areas, including up around Mr. Hinkle’s property. There have been spec homes built in that area which 10 to 15 years from now, may be converted to a commercial use, as they are on larger lots. Mr. Trimble stated that the market has spoken with regard to Dr. Marley’s property. The property was on the market for sale for a year or two, as rural residential property. Two buildings have been built in that area in the last thirty years and they are both churches, which are a welcomed and nice addition to the community. Dr. Marley’s property needs to be developed to its highest and best use. Mr. Trimble believes a mixed use of commercial enterprises would be appropriate and rather than discussing the change to a CBD designation increasing the value of the parcels, it frees the values of those parcels that are currently being artificially restricted. Mr. Trimble continued that when there is a market for a piece of property absent a zoning change and there is no logical reason to not make the change, then it is effectively a partial condemnation of the value of the property, and believes that is not a position the City wants to be in. He continued that it is unreasonable to believe that the owners of those properties want to see the existing value be freed up. Mr. Trimble commented that there is not a huge demand for commercial properties, but there is a restricted supply, contrary to what has been said. There is not a lot of desirable commercial property available in the CBD. He would like to see more infilling if the requirements are set so businesses could be closer together with centralized parking, and the City then could take on the roll of charging for the parking. With infilling, he sees a consolidation of lots and a restructuring in the CBD. Mr. Trimble said he envisions wonderful cluster development along Dr. Marley’s, Mr. Hinkle’s and the Beachy properties. Mr. Trimble pointed out that both Dr. Marley and Mr. Hinkle have made a significant long term investment in their properties by removing dead trees and stumps, paying for the assessments that have come in, and there by, making an investment in the community. They have been very patient waiting for the freedom of the value of what exists there currently.

Bill Smith commented that he appreciates Dr. Marley’s vision and desire to have a nice looking community in the way he wants to develop his property. Mr. Smith said it brings up the idea in following along with the staff recommendations about deletion of more uses than what were suggested if the CBD gets extended. Looking at that in totality, perhaps there needs to be a new district that would take that into account and create some other opportunities. In addition to the staff’s list he suggested deleting Planned Unit Developments (PUD), which are problematic because Code does not clearly defined how PUD’s are applied. Mr. Smith also believes that itinerant merchants and mobile food services should be removed, commenting that we have already seen recent examples that unattractive clusters of businesses along the highway can develop rather quickly. He also noted that some of the permitted uses might be moved into CUP’s to get a handle on it. Mr. Smith commented that Mr. Hinkle made good comments about roadside sound barriers. He disagrees that zoning has to follow the market, stating that zoning is about the community determining what they want. If it were solely left to the market, then there wouldn’t be much point to zoning at all. Mr. Smith stated that it has been apparent for some time that the City is land bound and opportunities for commercial expansion are limited. There aren’t a lot of attractive areas for commercial expansion so it is not unreasonable to look at this area in that respect.

John Williams, owner of Spruce Acre Cabins in the area proposed for rezone, commented that he is ambivalent about whether the area should be commercial, but his improvements are commercial and he likes the idea of it being used for things that look good coming into town. He said he definitely would not want a trailer park or filling station across from his property. He hated to see the trees go, but loves the view. He doesn’t mind a Gateway type commercial area, so that it looks good.

City Planner McKibben brought the Commissions attention to the laydown items from Dick Synhorst and Christopher Story addressing this particular issue.

Vice Chair Hess closed the public hearing and advised the group that there will be a second public hearing at the next regular meeting of the Planning Commission.

No action was taken by the Commission at this time.

B. Staff Report PL 06-20, Ordinance 06-12, Of the City Council of the City of Homer, Alaska Amending Homer City Code 21.48 Central Business District CBD by Deleting Some Allowed Uses.[2]

City Planner McKibben pointed out that this ordinance would propose to remove the uses of mobile home parks, mini storage and mobile homes from the CBD if it were expanded toward West Hill. She explained that this staff report is repetitious of the previous staff report but pointed out that since the last time they addressed rezoning or expanding the CBD, the Commission was directed by Council to begin working with area residents and property owners to develop the Scenic Gateway Overlay District. Staff held a neighborhood meeting on March 21 which was well attended and there were mixed reactions to the idea of expanding the CBD, many felt that a straight CBD along the highway was not appropriate and perhaps some limited commercial type zoning may be appropriate. Previously when the Commission discussed this they talked about potentially a tourism emphasis type district. If the Council should expand the CBD out to West Hill, staff is in agreement that a straight CBD doesn’t seem appropriate for the area as it is not consistent with the Comprehensive Plan. She continued that it is inconsistent with the previous recommendation of the Commission for an area with an emphasis for tourism and is not consistent with the concept of limited commercial that was brought up at the neighborhood meeting. Ms. McKibben reported that Staff is in the midst of the public process with the area land owners and Council has not allowed enough time for Staff to work with the land owners and a proposed ordinance to fully address this issue. Given the time constraints staff has suggested a significant amendment to the list of uses that would not be allowed in the area including:

· Any retail businesses with the principal activity of sale of merchandise and services in an enclosed building.

· Parking Lots and Parking Garages.

· Mortuaries.

· Floatplane Tie Up Facilities.

· Building Supplies and Materials.

· Mobile Homes.

· Mini Storage.

· Plumbing, Heating and Appliance Service Shops.

· Printing and Publishing Establishments.

· Self Service Laundry.

· Taxi Operation. Limited to Dispatch.

· Automobile and Vehicle Repair.

From the Conditional Use List:

· Indoor Recreational Use Facilities.

· Mobile Home Parks.

· Service Centers and other Drive In Establishments.

· Pipelines, Railroads and Heliports.

· Green House and Garden Supplies.

· Incidental and Custom Manufacture and Repair.

· Drive In Car Washes.

· Outdoor Recreation Facilities.

City Planner McKibben clarified that the reason for this recommendation is that a lot of the uses have traffic associated with them. She tried to leave things that are consistent with the discussion of uses that seem to have a tourism related business or something similar to the discussion that took place at the neighborhood meeting, along the lines of limited commercial, more professional office of financial type institutions, which seems to be more in the spirit of the discussions that have take place.

Ms. McKibben said that timing of this proposed ordinance and the scenic gateway overlay district process is confusing to the public and it seems apparent that action on this ordinance should be delayed until further work is completed on the Gateway. Staff recommends that the Commission consider public comments, staff recommendations and make a recommendation to Council. Staff further recommends that should the CBD be expanded out to West Hill, the recommended amendments to the permitted and conditional uses and structures be adopted.

There were no public comments.

Vice Chair Hess closed the public hearing.

LEHNER/PFEIL MOVED TO APPROVE STAFF REPORT PL 06-33 WITH RECOMMENDATIONS.

Commissioner Lehner commented that they are getting good information from the public and staff. They haven’t defined the purpose of the Gateway Zone or the outright permitted uses the conditional uses, design criteria or any of the other elements that are critical in adopting a zoning district for the area. She would like to see the process to define this district clearly continue before this ordinance gets adopted.

Commissioner Pfeil comments that he fully supports commercial business, but wants to see it done right. He concurs with Commissioner Lehner’s comments.

Commissioner Kranich said in a way they are under the gun here. He likes a lot of Ms. McKibben’s suggestions on uses to be deleted, but as Ms. Lehner pointed out there are a lot of things that need to be taken into consideration. Mr. Kranich commented that it appears that Council is going to act on this ordinance before the CBD is expanded and eliminate three uses. He would hate to see the Commission rush to try to get some other uses deleted with out having thought it out. He voiced his opinion that it may be better to let this ordinance pass and if the district is expanded, the uses can be modified then. The amended uses need to be thought out before the Gateway district is approved.

Commissioner Connor commented that Council has given the staff direction to create the Gateway District and there is a timeline in place. She feels it would be prudent to see this through rather than doing it piecemeal.

Vice Chair Hess commented his belief that this came before council to try to make the rezone more palatable. He agrees with Commissioner Kranich in that even if this ordinance goes through, he doesn’t see that it will do a lot of damage because once the area is rezoned, the uses will be defined during that process. He added that even if it becomes straight CBD, there could be recommendations for amendments for uses during that time. He doesn’t see any harm in passing the ordinance at this point and time.

There was brief discussion that comments they would like to forward to the Council are:

· The cart is ahead of the horse in that this ordinance amends a use in a zone that isn’t there.

· It seems that they are out of sequence with what is trying to be accomplished.

· This rezone is already causing confusion as to what exactly is going on and if this is adopted, it will maximize the confusion.

There was discussion of an amendment to the motion the floor.

VOTE: YES: LEHNER, KRANICH, HESS

NO: PFEIL, CONNOR

Motion failed for lack of a majority.

LEHNER/PFEIL MOVED THAT THEY RECOMMEND THE COUNCIL NOT ADOPT ORDINANCE 06-12 AS PRESENTED.

There was brief discussion that a separate action is taken to have staff prepare a supporting memorandum.

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

Motion carried.

City Planner McKibben recommended the Commission make a motion to request that staff do a memorandum to accompany the motion that would explain some things they were discussing about how it adds to the confusion with the process already in place, the cart ahead of the horse and lack of time to fully evaluate the uses that are appropriate for the area and some of those thing.

LEHNER/KRANICH WE SO MOVE.

There was no further discussion.

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

Motion carried.

Vice Chair Hess called for a short recess at 8:35 pm. The meeting resumed at 8:45 pm.

C. Staff Report PL 06-29 Vacation of Sunnyside Drive.

City Planner McKibben read the staff report into the record.

Commissioner Foster arrived at 8:50 pm.

Stephen Howell, City resident on Highland Drive, commented that in 1978 Mr. Miller, the original subdivider, petitioned to have Sunnyside Drive vacated and his request was denied by the City because conditions had not changed. Mr. Howell suggested that 40 years ago there may not have been a need for Sunnyside Drive and now 40 years later conditions have changed and there is less of a need for it. Mr. Howell said he had originally brought in his plat to re subdivide his property to the Planning Commission and he recalled that Dr. Foster was aware that Kachemak Heritage Land Trust (KHLT) had acquired the property below the Howells and they should look at vacating Sunnyside Drive. Mr. Howell said they contacted KHLT and found that they do have conservation easement restrictions specifically restricting them from using Sunnyside Drive as an access. He explained that the person who donated the land to KHLT lives several lots adjacent and has a clear view of the whole area and obviously in donating the land, did not want to see Sunnyside Drive developed, nor does the Homeowners Association. Mr. Howell commented, with due respect, that staff demonstrates pretty clearly that the rationale throughout the staff report no longer exists, yet they recommend the right-of-way be maintained. The reasoning for vacating is that there is no clear future or current use for Sunnyside Drive, but for some reason the staff report recommends keeping it. Mr. Howell suggested that Sunnyside Drive is an example that if it can’t be vacated, there is not another road in the City in which you could vacate it, given its lack of use in the subdivision.

Mr. Howell said that nothing in staff’s analysis identifies any legitimate current or future use of the right-of-way as adding to the adequacy or efficiency of the street and road system. It points out that the road and any further connections will never be built. He explained the reason for that is because it goes to a piece of property that has restrictions for not using it and the only adjacent property would be served by creating another easement across the KHLT property to Sunnyside Drive. He continued that the Borough Code adds that the purpose is to provide utility easements and protect health, safety and general welfare of the people. Maintaining the right-of-way does nothing to meet those provisions. With regard to the Borough requirement that an equal or superior access be provided, Mr. Howell stated that there is no existing or potential need for that access and no one can give a specific reason for having the Sunnyside Drive right-of-way given all the restrictions that are in place. Mr. Howell said the recommendation for a 20 foot alley is arbitrary and continues to suggest there is a need for motorized traffic to the bottom of the ravine and into the wetlands or adjacent park lands would be necessary. Staff clearly states that circumstances are such that a road likely will not be built and a 20 foot alley way wouldn’t suffice as a sufficient road for motorized traffic. Mr. Howell explained that the active Homeowner’s Association (HOA) covenants states that no motorized vehicle, including snow machines and motorcycles shall be operated on any land in the subdivision, including private homes and it is observed by the property owners in the area. Mr. Howell said he understands the staff’s desire to maintain some sort of public access through the park. Mr. Howell went to the map and pointed out the KHLT property and two park land parcels. He explained that Highland Drive provides access to the park lands. He pointed out where there is a better trail to walk into the park land if the Commission is interested in preserving a public access. The HOA could work with the City to provide the better access.

Commissioner Pfeil questioned if the HOA has the authority to do that. Mr. Howell replied that the park land belongs to the HOA. He is unsure of the status whether it is publicly accessible lands or private lands held by the HOA and not publicly accessible. In either case the road doesn’t provide any kind of public service down into the lands.

Commissioner Connor questioned who owns the park land. Mr. Howell responded that it is the Mountain View HOA. He said it is dedicated as park land through the Borough. Ms. Connor commented that the Henwood’s letter in their packet protests the vacation and one reason is because they had done a preliminary plat where the surveyor continued Sunnyside Drive to their property. Mr. Howell commented that it is pretty obvious that Sunnyside Drive doesn’t access their property as it is a good distance away.

Mr. Howell referenced the Henwood’s letter reason number five “It would seem unwise to lock up this kind of property that would create more taxes when developed.” He suggested that it does not lock up land for development, it just does not have the access to be developed in the same way that others do. There was discussion whether the Henwood property is land locked and it was pointed out that there is access from the Sterling Highway.

Commissioner Kranich asked if the park area is for public use or private use and how wide the right-of-way is for Sunnyside Drive. Mr. Howell responded that he is unsure of the way the park is designated; it is mentioned in the covenants but doesn’t specify. City Planner McKibben said the right-of-way is 60 feet.

City Planner McKibben commented that if the park is owned by the HOA for private use, those who are not part of the HOA do not have the right to use the property. The justification for maintaining Sunnyside Drive is that it is the only feasible, constructible access, at this point, to the KHLT property. Mr. Howell stated that KHLT has gone on record as waiving their rights to that. Ms. McKibben responded that the City does not have a copy on record. She explained that there is no use for trail access or any other type of use.

There was further discussion regarding the location of the right-of-way and the topography of the land. It was pointed out that the KHLT has been working with property owners adjacent to their land to try and secure an access from the Sterling Highway.

Gary Nelson, City resident, stated that the Department of Natural Resources tries very hard to require alternate access when people are vacating rights-of-way to make sure that where it is needed, it is provided. He believes that KHLT does a lot of good things, but thinks this action gives them a black eye because they are effectively blocking what was planned historically. Sunnyside Drive was to serve what is currently the KHLT property, there is a natural bench there and it probably would have T’ed into a road to serve properties to the east and west, including the Henwoods. He commented that the Henwood’s are being slighted, not just in this action, but there are cul-de-sac’s up above. It is tough terrain to work with as it is very steep and there are just a few benches and access areas that would allow for roads in there. He had a plat before the Commission before where they were trying to use the bluff as a natural division, as it is naturally and geographically. There is no access to the top there. The folks who sold it to the KHLT benefited because they wanted to keep their park as a park, but it deprives the people to the right and left of the KHLT property of their planned access.

Vice Chair Hess asked Mr. Nelson how the KHLT property would provide a right-of-way on their parcel, since Sunnyside Drive doesn’t go to the Henwood property or the property to the west. Mr. Nelson responded that he does not know what the restrictions are on their property. He added that he recognizes that it would take a wealthy person to be able to build the length of roads to City standards into their property but there have been some circumnavigation points where people have gotten variances to put in a drive way.

There were no more public comments and Vice Chair Hess closed the public hearing.

LEHNER/KRANICH MOVED THAT SHE HAS A CONFLICT OF INTEREST.

Commissioner Lehner explained that she is a member of the Mountain Park HOA. She lives outside the notification area, but in the subdivision.

Vice Chair Hess concurred with Ms. Lehner and as part of the HOA she has partial ownership in the park parcels and directly affected by the vacation.

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

Motion carried.

Commissioner Lehner left the table.

FOSTER/KRANICH MOVED THAT HE HAS A CONFLICT OF INTEREST.

Commissioner Foster commented that he was sitting on the KHLT board when the property was donated and was party to discussion with neighboring property owners and discussion of access. He clarified that he is no longer on the board.

VOTE: NO: KRANICH, PFEIL, HESS, CONNOR

Motion failed.

CONNOR/PFEIL MOVED TO ADOPT SUNNYSIDE DRIVE RIGHT-OF-WAY VACATION, STAFF REPORT PL06-29 WITH STAFF RECOMMENDATIONS.

RECOMMENDATIONS:

Planning Commission recommend denial of the right of way vacation with the following findings:

1. Vacating the right of way is contrary to the stated purpose of the Kenai Peninsula Borough Code, Purpose, to promote an adequate and efficient street and road system.

2. Vacating the ROW is contrary to 20.28.150. Vehicular access provision. Equal or superior access is not being provided.

Planning Commission recommend a public access easement be granted or a reduced right of way of a 20 foot alley be dedicated through the park lot in a general north south direction from Highland Drive.

City Planner McKibben clarified for the Commission that the staff report recommends denial of the right-of-way vacation.

Commissioner Connor said she would like to see documents for the KHLT conservation easement and know more about the agreement between KHLT and the landowners.

Commissioner Foster said that the people who donated the property did not want the upper part of the bench developed, but agreed to one house on the property. Dr. Foster recalled that they looked at access through the Kilcher property to the left. There is a trail that goes through the Kilcher property, up along the bench and along the flat area. They looked at that trail as the access. He is unsure of the current status; this was over a year ago.

Vice Chair Hess commented, for the benefit of the applicant, that vacations of rights-of-way are serious because it is public property. A vacation is basically taking public property and putting it in private hands. It is a situation that is not taken lightly, so the Commission needs be clear on the issues regarding the vacation.

Commissioner Foster commented that it is one issue because alternate access is not proven. If it is a concern regarding the Henwood property, there is access through Coyote Way and there really isn’t access from Sunnyside Drive unless KHLT gives a right-of-way through their property. If the concern is a right-of-way to KHLT, he asked if it would be more prudent to have it as a trail right-of-way through KHLT land along the ridge.

Vice Chair Hess referred to Mr. Nelson’s comments and wants to ensure whether the Henwood property is accessible through this right-of-way in any shape or form.

KRANICH/FOSTER MOVED TO POSTPONE THIS UNTIL THEY RECEIVE A COPY OF THE DEED RESTRICTIONS ON THE KHLT PROPERTY.

There was brief comment that the information would be valuable for their further deliberations. Request was made that the Henwoods be contacted for their input and confirmation on whether the park land designation can be changed.

VOTE: YES: PFEIL, CONNOR, KRANICH, HESS, FOSTER.

Motion carried.

D. Staff Report PL 06-26 Barnett’s South Slope and J. Waddell Homestead Tract C Section Line Easement Vacation.

City Planner McKibben read the staff report.

Roger Imhoff stated that he is available to answer questions.

There were no public comments. Vice Chair Hess closed the public hearing.

FOSTER/PFEIL MOVED TO ACCEPT STAFF REPORT PL06-26 WITH STAFF FINDINGS AND RECOMMENDATIONS.

Staff Recommendation:

Planning Commission recommend approval of the Section Line Easement vacation as presented.

Commissioner Lehner advised the Commission of an ex parte communication on March 26^th before she knew it was going to be before the Commission. She reported that Katherine George expressed disillusionment with testifying before the Commission because she felt they don’t get listened to anyway, but she is against easement vacations.

Commissioner Connor said Katherine George had contacted her as well and they had a similar conversation.

Commissioner Kranich commented that he does not see a problem with this. In a way he views the approval as a way of helping a property owner who, through their goodwill and generosity, dedicated and gave to the public, significant square footage of their parcel. He questioned if 10 feet would be wide enough for pedestrian access. City Planner McKibben responded that it is consistent with the rest of the pedestrian access throughout the subdivision.

Vice Chair Hess commented that there isn’t any consistency in the size of the pedestrian easements and recommended the Commission review that in the future.

Commissioner Connor expressed her concern of whether this vacation serves the public good. Discussion ensued that superior access had been dedicated and previously it was discussed that when the new access was established this one would be vacated. Mr. Neal confirmed that there had been no changes in the accesses since the Commission approved his preliminary plat.

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

Motion carried.

E. Staff Report PL 06-23 Request for a Variance from the 20’ Right-of-way setback at 5660 Katie Jean Circle, Lot 10-A Tulin East Highlands Resub.

City Planner McKibben read the staff report. City Planner McKibben reminded the Commission that approval of a variance requires five yes votes and findings of the Commission. She asked for a short break to confirm with the Policy and Procedures Manual.

Vice Chair Hess called for a recess at 10:07 pm. The meeting resumed at 10:13 pm.

City Planner McKibben confirmed that her previous statement regarding the required vote was correct.

Commissioner Connor reported that Mr. Stewart had contacted her before he filed the variance. She said their discussion was in par with the information in the staff report.

Charlie Stewart, applicant and owner of Lot 10A, commented that he recognizes that this has been recommended to be denied. He pointed out that the house is already there and the greater good of the City would be served by the house remaining where it is.

Commissioner Foster confirmed with the applicant that when he bought the house from the Tulin’s that the foundation was already in place and questioned whether there was any information as to whether the house impedes the line of sight. Mr. Stewart said the foundation was in place along with the well, septic and driveway. City Planner McKibben commented she thought they had determined there were no issues with the line of sight, although there was nothing in the staff report to confirm that. She pointed out that the house sits twenty feet from the roadbed.

There was no further public comment. Vice Chair Hess closed the public hearing.

There was discussion regarding wording of a motion and which findings and which recommendations/findings to accept.

FOSTER/KRANICH MOVED TO APPROVE STAFF REPORT 06-23 WITHOUT STAFF RECOMMENDATION.

Commissioner Foster said he had done extensive research on this and explained that had this gone to the Borough prior to annexation, it would likely have been approved for an exception to the 20 foot setback since the structure (the foundation) was already in place when Mr. Stewart purchased it. Dr. Foster said the City does not have that allowance, but for all intent and purpose they are not going to move the foundation.

Vice Chair Hess disagreed and commented that does not meet the criteria for a variance. Mr. Hess read an excerpt from Lee Sharp,

One of the ways to immediately tell if a variance request is valid is to ask yourself if you would be able to grant the variance before the structure was built. A variance may only be granted if there is a peculiarity of the physical condition of the land which distinguishes it from other land in a general area. A condition that is peculiar to the owner is not relevant. Personal hardships, no matter how compelling and how far from beyond the control of the individual applicant, do not provide sufficient grounds for granting a variance.

Mr. Hess said that if they grant this variance, it can be challenged.

There was discussion if it could be considered a non conforming use.

FOSTER/LEHNER MOVED TO POSTPONE UNTIL THEY COULD GET A LEGAL OPINION FROM THE CITY ATTORNEY.

Discussion ensued regarding the differing opinions of the Commission. It was clarified that a non conforming status would not apply and that the applicant has another avenue of recourse with the person he purchased the property from. Point was made that leaving the structure in place is in the best interest of the community as it is in the Bridge Creek Watershed District.

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

Motion carried.

PLAT CONSIDERATIONS

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 06-24 Mountain Park Howell Replat Too Subdivision Preliminary Plat.

City Planner McKibben read the staff report.

LEHNER/KRANICH MOVED THAT SHE HAS A CONFLICT OF INTEREST.

Commissioner Lehner reiterated that she is a member of the Mountain Park HOA and the plat assumes the vacation, an action postponed in an earlier action, and if she was concerned about the vacation, she would be concerned about this.

City Planner McKibben said if the vacation is not granted, she assumes the property line would be along the right-of-way.

City Planner McKibben commented this does not involve the property within the HOA. It involves private property and a portion of a right-of-way which belongs to the public.

VOTE: NO: KRANICH, FOSTER, PFEIL, HESS, CONNOR

Motion failed.

PFEIL/CONNOR MOVED TO ACCEPT STAFF REPORT PL 06-24 WITH STAFF RECOMMENDATIONS.

STAFF COMMENTS/RECOMMENDATIONS:

Planning Commission recommend approval of the preliminary plat with the following comments:

1. Correct the city limits depicted in the vicinity map.

There was no public comment.

There was no discussion.

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

Motion carried.

B. Staff Report PL 06-25 Alfred Anderson No. 5 Subdivision Preliminary Plat.

City Planner McKibben read the staff report.

Roger Imhoff, project surveyor, commented that he feels at some point, drainage easements should be further defined in the code. There are drainage easements that protect drainages and there are drainages that the City should be concerned about keeping open, but this isn’t one of them. Mr. Imhoff explained that this is a wooded area and the property owners wouldn’t want someone coming on to their private property and digging a bigger ditch than what is there already. He said the drainage easement came off the parent plat. There were no widths on in, it was just sketched in, so he carried it forward.

Commissioner Kranich asked if building still meets the 20 foot setback when dedicating the north portion of the cul-de-sac. Mr. Imhoff stated that it would, clarifying that it is 22 feet from the corner.

LEHNER/KRANICH MOVED TO APPROVE STAFF REPORT PL 06-25 WITH STAFF RECOMMENDATION MINUS THE NOTE ON THE WIDTH OF THE DRAINAGE EASEMENT.

STAFF COMMENTS/RECOMMENDATIONS:

Planning Commission recommend approval and preliminary plat with the following comments:

1. Note the width of the drainage easement.

Commissioner Kranich noted a discrepancy and asked for clarification on water/sewer. It was confirmed that the lot is served by City water and sewer.

There was brief discussion of noting the width of the drainage.

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

Motion carried.

C. Staff Report PL 06-28 Forest Glen Subdivision, Ingle Replat Preliminary Plat.

City Planner McKibben read the staff report. She advised the Commission that Public Works Director Meyer asked her to relay that this property is in an LID area and three of the lots will have to pay an assessment. The applicant’s representative, Gary Nelson of Ability Surveys, acknowledged her comment.

Vice Chair Hess pointed out that there were no comments noted from the Fire Chief in the staff report. He contacted Planning Technician Engebretsen who reported that there was an email from Fire Chief Painter that he had no comments on the plat.

Mr. Nelson commented that he was in attendance to answer any questions. He stated he is aware of subdivisions that have been approved with five foot pedestrian easements and requested that the 10 foot pedestrian easement width be reduced to 8 feet. Mr. Nelson believes that width would adequately accommodate people passing each other on the path.

Commissioner Foster made comment that when other subdivisions north of the school came before them, concern was raised by a number of neighbors, including the principle of the school, that there was a significant amount of flooding that came from the subdivision potentially from those lots. He asked Mr. Nelson if he is aware of the problem there.

Mr. Nelson approached the map. He explained that City Planner McKibben has mentioned this issue to him earlier so he drove by the area. He remembered that while he was out surveying that along the north boundary of lot 11A there is a significant drainage ditch that was dug in the 1970’s. At the time it was about three to four feet deep and three to four feet wide, and he believes it drains out to the road and the road has a ditch along it with culverts. Mr. Nelson explained that what could be happening is the water comes out of a ditch and daylights[3]. He explained that it looked to him that the water was being channeled a portion of the way down, but he did not follow it all the way.

Commissioner Foster commented that the sheet surface water caused a lot of damage to the school, which is an area that is subject to inundation, flooding and storm water. It is not identified on the plat and Dr. Foster asked Mr. Nelson why it is not identified if it was a historic problem to the school and if subdividing into five lots with the amount of impervious coverage would be mitigated so it won’t further exasperate the current problem.

Mr. Nelson restated Commissioner Foster’s comment that the school has historically had a flooding problem. Commissioner Foster clarified that they had a flooding problem from those lots drop down to the school. Mr. Nelson rebutted that the lots are basically undeveloped at this time. There is a house on lot 11 that has been there for many, many years, but there has been no development activity on those lots, there is natural vegetation out there, the forest has been removed. Mr. Nelson suggested that perhaps the school needs to build an interceptor ditch around their perimeter if they are having problems with sheet water. There is no channel out there, there is sheet water. He explained what that means is as it rains the water evenly moves down hill and the ground there is probably a 3% grade.

CONNOR/KRANICH MOVED TO ACCEPT STAFF REPORT PL 06-28 THE FOREST GLENN SUBDIVISION REPLAT PRELIMINARY PLAT WITH STAFF RECOMMENDATIONS.

Staff Recommendations:

Widen the panhandle for Lot 11A to thirty feet.
Show a ten foot utility easement on the portion of Lot 10B that abuts to the panhandle of Lot 10A.
Water and sewer stub-outs to be installed by the owners prior to recording the plat, or the owner will execute a Construction Agreement with the City of Homer prior to recording.
Note placed on plat prohibiting structures within the panhandle portions of Lot 10A and Lot 10-C.
Ten foot pedestrian easement from Forest Glen Drive to the school along lot line between the proposed Lot 11B and Lot 10A.
A plat note indicating that this subdivision may contain wetlands. Property owners should contact the Army Corps. of Engineers prior to any on-site development or construction activity to obtain the most current wetlands designation (if any).

Commissioner Conner expressed her concern that lot 10 is shown to be about 80% wetland and lot 11 is shown as 60% wetlands and questioned if there is a Borough policy on flag lots. She said that Borough Code states that lots shall not be less than 60 feet wide on the building setback line. Mr. Nelson responded that the Borough does enforce that but it does not apply to the panhandles of the flag lots.

Commissioner Foster asked if the pedestrian easement were accepted at 8 or 10 feet if it would make any of the lots unbuildable. Mr. Nelson replied that it would not. He was trying to lookout for the property owners rights for the future for use of their land. Mr. Nelson clarified that he was asked by the owners to do this specific design of the lots. Dr. Foster asked if the lot lines would have to be reconfigured should these lots be deemed as wetlands. Mr. Nelson responded that wetlands jurisdiction is the Corps of Engineers responsibility and he does know what their current policy is. He believes it is case by case application basis.

Commissioner Kranich commented that the Staff Recommendation 1 asks that the panhandle for Lot 11A be widened to thirty feet but the panhandles for 10A and 10C aren’t asked to be widened. City Planner McKibben pointed out the recommendation 2 regarding the ten foot utility easement.

Commissioner Pfeil commented that he doesn’t like to see lots chopped up this small.

Commissioner Lehner said she wished they had more wetlands information before making a decision.

City Planner McKibben stated that it is important to remember that the wetlands maps are done on a very large scale. The lines are very wide. They can not accurately determine the actual location or extent of the coverage of the lot because of the scale in which the mapping is done. All the mapping is used for is to show that it appears that there are wetlands in the area. They are working to assign functions, but determining if the lots are developable has to be done by a Corps determination.

Ms. Lehner said that a determination can’t be done this time of year. She commented that they are not expensive or time consuming, but also that the City does not require one. She said it is the health, safety and general welfare issue[4]. It brings up the question of what problems are we putting on the publics back by shifting drainage issues to Public Works and the School District that the taxpayers have to pay for. We don’t know to what degree this is an issue here. Commissioner Lehner stated that it is difficult to feel that the health, safety and general welfare is promoted by approving this subdivision at this time.

City Planner McKibben asked if they intended to address the pedestrian easement. Commissioner Pfeil responded that they moved to accept the staff report.

VOTE: YES: PFEIL, HESS, KRANICH

NO: CONNOR, FOSTER, LEHNER.

Motion failed for lack of a majority.

D. Staff Report PL 06-30 Wintergreen Subdivision Lot 5 Replat Preliminary Plat.

City Planner McKibben read the staff report. She added a suggested addition that was not in the staff report which is a plat note that says “This subdivision may contain wetlands; property owner should contact the Army Corps of Engineer prior to any onsite development or construction activity to obtain the most current wetland designation, if any.”

Gary Nelson, project surveyor, advised the Commission that he and the property owner are available for questions.

Commissioner Foster asked if they had any problem with the recommendations that the City has requested. They applicant and their representative responded the do not.

FOSTER/LEHNER MOVED THAT THEY APPROVE PRELIMINARY PLAT LOT 5 WINTERGREEN SUBDIVISION REPLAT WITH STAFF RECOMMENDATIONS AND THE CONDITION REGARDING THE WETLANDS.

There was no discussion.

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

NO: LEHNER

COMMISSION BUSINESS

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

City Planner McKibben reviewed the staff report. She commented that it would be relatively easy to bring the PAC in for conditional use permits. Zoning permits have more time constraints and the PAC is willing to meet at short notice to review permits.

PFEIL/KRANICH MOVED TO ACCEPT STAFF REPORT 06-32.

Commissioner Kranich commented that the way resolution is presented, it is asking for something outside of what the Committee was established for. The PAC was established strictly to review things for municipal buildings and structures and the resolution broadens it into the private sector. It would take a code change to accomplish that. He does not support the resolution.

There was discussion about how to proceed.

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

Motion failed.

KRANICH/PFEIL MOVED THAT THE PLANNING COMMISSION REQUESTS THAT PLANNING STAFF SEND A MEMORANDUM TO THE PUBLIC ARTS COMMITTEE REQUESTING THAT PRIOR TO SUPPORTING THE REQUESTS OF THE PUBLIC ARTS COMMITTEE THEY REQUEST THE COUNCIL TO INCLUDE THE EVALUATION OF PRIVATE FACILITIES IN THE PUBLIC ARTS COMMITTEE’S PERVUE.

Commissioner Kranich suggested it should apply to Town Center only.

VOTE: NON OBJECTION: UNANIMOUS CONSENT.

Motion carried.

B. Staff Report PL 06-10, Request for Acceptance of Nonconforming Use and Structure at Safeway, 90 Sterling Highway, Glacierview No. 20, Lot 7A, Re: Interpretation of Zoning Code Provision Applicable to Exterior Architectural Features to Nonconforming Structures.

FOSTER/PFEIL MOVED TO POSTPONE ACTION ON STAFF REPORT PL06-10 TO A SPECIAL MEETING.

There was no discussion.

VOTE: NON OBJECTION: UNANIMOUS CONSENT.

Motion carried.

C. Interpretation of Zoning Code Provisions Applicable to Addition of Exterior Architectural Features to Nonconforming Structures.

LEHNER/PFEIL MOVED TO POSTPONE ACTION ON ITEM C TO THE SAME SPECIAL MEETING.

There was no discussion.

VOTE: NON OBJECTION: UNANIMOUS CONSENT.

Motion carried.

C. Technical review of HCC Chapter 8 and a Review Itinerant Merchant and Mobile Food Licensees

The Commission briefly discussed the need for a technical review for these sections of code.

The Commission agreed to add this to their next agenda for further discussion and action.

REPORTS

A. Borough Report

Commissioner Foster had no report.

PLANNING DIRECTOR’S REPORT

The Commission agreed to schedule their special meeting on April 17, 2006 at 7:00 pm.

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. “Affordability Amidst Affluence,” Planning Magazine, March 2006

B. Letter dated March 10, 2006 to Kenton Bloom, Seabright Surveying from Dotti Harness, Planning Technician

C. Letter dated March 14, 2006 to Blasé Burkhart Burkhart Croft Architects, LLC from Dotti Harness, Planning Technician

D. Letter dated March 14, 2006 to Sandra Wicks, Attorney, from Dotti Harness, Planning Technician

E. Letter dated March 15, 2006 to Refuge Chapel from Dotti Harness, Planning Technician

F. Letter dated March 20, 2006 to Richard Gregoire from Dotti Harness, Planning Technician

G. Letter dated March 20, 2006 to Gina M. Joyce, McLane Consulting and Kurt Eriksson from Dotti Harness, Planning Technician

H. Letter dated March 23, 2006 to Gina M. Joyce, McLane Consulting and Kurt Eriksson from Dotti Harness, Planning Technician

I. April 2006 Clerk’s Calendar

COMMENTS OF THE AUDIENCE

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

Gary Nelson thanked the Commission and said they are doing a real tough job. He commented about the Forest Glen action tonight. Mr. Nelson said there was once a very beautiful forest there in that whole area, including where the school was built. He explained that the school was built over a drainage, and he was involved in the project. He said that it was a huge dewatering effort there and it is interesting that there is no ditching around the perimeter to collect waters and deal with the problem they have. The lots around it are going to be built on. There will be increased surface run off in the future because once the lots are graded and houses are built it will run off a little faster. Mr. Nelson responded to Commissioner Pfeil’s previous comment regarding lot sizes by pointing out that the code states that they are okay to have there and recalling that Mr. Pfeil’s first lots were smaller than the lots on the proposed replat. Mr. Nelson stated that he realizes Mr. Pfeil didn’t like the lots and made them larger. Mr. Nelson stated that he has a problem in that they did not follow the staff report, which is fine, if the Commission voted their conscience, but he questioned why no reasons were given to the owners. He says this because half of the other lots in this subdivision have been resubdivided within the last two or three years. Others around these people have been allowed to do this, but there were no reasons given why these property owners can’t. Mr. Nelson thanked the Commission.

Bill Smith thanked the Commission for their work. He commented that itinerant merchant permits aren’t required for events like Concert on the Lawn and the Street Fair to and asked that they be able to continue as such.

COMMENTS OF THE COMMISSION

Commissioners my comment on any subject, including staff reports and requests for excused absence.

Commissioner Foster commented that the Road Policy to Science Workshop is going on and they had an exciting and successful day today and thinks they will tomorrow as well. He invited the others to stop by if they can. He reported that there were five Mayors there from around the Borough along with many Planning Commissioners and Council representatives. Dr. Foster questioned if the Commission needs to adopt some findings regarding the Forest Glen decision.

Commissioner Lehner commented that she had referenced the Borough Code, although not explicitly, with regard to health, safety and general welfare. Because of the issue that there are so many wetlands and there is not very much information on how the wetlands are functioning, they are creating problems the tax payers and school district are going to have to pay for. She pointed out that those are reasons.

There was discussion as to how to deal with the findings.

LEHNER/FOSTER MOVED TO RECONSIDER.

City Planner McKibben clarified it was reconsideration of the Forest Glen Subdivision, Ingle Replat Preliminary Plat.

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

Motion carried.

Commissioner Foster reiterated his comments:

· The elementary school is located downhill from the lots.

· The area has been subject to historic flooding onto the school down below.

Commissioner Lehner reiterated her comments:

· The wetlands information the City has and the Borough Code authorizes the Commission to request wetland information.

· A very high percentage of the lots are wetland and breaking them up into smaller lots is going to exacerbate what ever flooding runoff problems already exist.

· The consequences are likely to be borne by the tax payers, because the water will have to be handled when it goes off site either to the roads or toward the school.

Commissioner Lehner continued that the Commission’s charge in approving plats, in addition to ensuring their accuracy is that they are protecting the health, safety and general welfare.

Commissioner Foster suggested a finding that would recommend mitigation for the flooding as something to accept prior to subdividing these lots. Commissioner Lehner stated that the Commission would welcome discussion of mitigation options or approaches in concert with subdividing these lots.

Vice Chair Hess commented he didn’t feel the Commission is doing a very good job with the findings.

Commissioner Kranich said he voted yes on the replat. In his reasoning he didn’t discount the high percentage of wetlands, but he recognized that presumably the plat will be noted that they need to contact the Corps to get their determination and permits. Mr. Kranich pointed out that the Daybreeze Park Subdivision, which is up from this one, had a large percentage of lots that were considered wetlands and they had to go through the permitting process for each of those. These people may end up in the same boat, but they will have to work it out with the Corps prior to any development. He thinks the property owners probably know that. Mr. Kranich stated that the occasional run off in that area, not knowing if it happens every year or every five years, is likely to happen on the whole bench. He feels that it is something that is going to have to be dealt with through drainage ditches and so forth.

Vice Chair Hess commented that he agrees with Mr. Kranich regarding the scrutiny the Corps will give. They will have the wetlands experts looking at them.

Commissioner Lehner disagrees because going in as an individual land owner to fill a relatively small area, she thinks in many cases the lots will fall under a nationwide permit. The fact that they have fragmented the parcels and each will person[5] go in individually means that the Corps doesn’t ever look at the cumulative effect. Ms. Lehner made further comment regarding the issues of dealing with the increased runoff from properties as they are subdivided and how it adds to the taxpayer’s burden.

Commissioner Foster expressed that he agrees with both sides of the argument, pointing out that the subdivision code does not allow them much leeway in these cases. His concern is the school.

Vice Chair Hess said it is hard for him to see that the development on these lots is going cause a severe flooding problem at the school.

Discussion ensued regarding previous flooding at the school and the other subdivisions coming in. The question was raised as to why they are singling out this one property owner’s subdivision. Comment was made that it is because of the high percentage of wetland so close to the school. Question was raised as to what point do they draw the line for new subdivisions in the area. The discussion continued, reiterating points that had previously been made.

Commissioner Lehner added that in previous discussions of the larger subdivision recently approved in the area, there had been open discussion with the property owner regarding the wetland issues. There hasn’t been that discussion in this case but now the property owner is aware that this is an issue and can take steps to deal with it and come back with proposed solutions.

Commissioner Foster asked whether a subdivision agreement would apply since there are five lots. City Planner McKibben said it would, but typically in cases where there is already a road and water/sewer connections, the requirement is waived.

FOSTER/PFEIL MOVED TO POSTPONE ACTION.

There was no further discussion.

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

Motion carried.

Vice Chair Hess commented briefly that House Bill 415 is headed to the House Floor and will move on to the Senate. He hopes it passes through before the end of the session.

ADJOURNMENT

Notice of the next regular or special meeting will appear on the agenda following “adjournment”.

There being no further business to come before the Commission the meeting adjourned at 12:02 am. The next Regular Meeting is scheduled for April 5, 2006 at 7:00 pm in the Cowles Council Chambers with a Worksession at 6:00 pm prior to the meeting.

MELISSA JACOBSEN, DEPUTY CITY CLERK

Approved:

[1] Clerk’s note: Mr. Hinkle is referring to in his comments is the Gateway District Neighborhood Meeting that was held on March 21^st.

[2] Clerk’s Note: Title should include: STAFF REPORT PL 06-33, SUPPLEMENTAL TO STAFF REPORT PL 06-20.

[3] Daylights- Where water in the ditch turns into a flat area where the water spreads and runs over the land.

[4] Referring to Kenai Peninsula Borough Code 20.04.010

[5] Commissioner Lehner was referring to permit applicants.