FFSession 08-05, a Regular Meeting
of the Homer Advisory Planning Commission was called to order by Chair Kranich
at
PRESENT: COMMISSIONER
FOSTER, HOWARD, KRANICH, MCNARY, MINSCH, STORM
ABSENT: COMMISSIONER
HESS (Excused)
STAFF:
DEPUTY
AGENDA
APPROVAL
MINSCH/ZAK I MAKE A MOTION THAT WE MOVE PENDING
BUSINESS ITEM D TO NEW BUSINESS ITEM C.
There was brief discussion.
VOTE: NON OBJECTION: UNANIMOUS CONSENT
Motion carried.
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.
Frank Griswold, City resident, commented that the
minutes were professionally done and he appreciates it. Mr. Griswold said he
had more information for the Commission regarding the non conformity at
Duane Parlow, City resident encouraged the
Commission to use their good conscience and make the right decisions and not to
be intimidated by one citizen.
Mitchell Hrachiar, Borough resident, said he brought
up the issue of lighting with the water hauler’s lot at previous meetings and
he recently got some information from Planning regarding lighting. Lighting
from his shop was installed last fall and the lighting is in his view shed. He
wasn’t sure how it was zoned in the past and got information from planning
which clarified that this is a non-conforming permit with uses consistent with
current district. It is zoned under rural residential. He asked planning how
lighting fits into this and found that there are basically no rules governing
lighting because there is no apparent residence there. Rural residential code
21.44.020 under home occupations states it shall not cause electrical
interference, bright or flashing light. There doesn’t appear to be any language
in that code that addresses non-conforming structures or non-conforming uses.
Mr. Hrachiar said he has a non-conforming structure in
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
2. Time
Extension Requests
3. Approval
of City of
4. KPB
Coastal Management Program
5. Commissioner
Excused Absences
It was noted that Commissioner Hess has an excused
absence.
FOSTER/MINSCH MOVED TO APPROVE THE CONSENT AGENDA.
There was no discussion.
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.
REPORTS
A. Borough
Report
Commissioner Foster commented that they had the
shortest planning commission meeting he can remember. It started at
B.
There was no Kachemak Bay Advisory Planning
Commission Report
C. Planning
Director’s Report
City Planner McKibben reviewed her staff report.
There was discussion as to whether or not to hold a
public hearing regarding the Transportation Impact Analysis for the
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.
There were no public hearings scheduled.
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.
This agenda item was postponed
by staff to
PENDING
BUSINESS
A. Memorandum and Staff Report PL08-06, Scenic Gateway Overlay
City Planner McKibben commented regarding the staff report noting that prior Commissioner McNary had suggested some boundary amendments prior to his resignation. The two changes were included in the packet for the Commission to review.
MINSCH/FOSTER MOVED TO BRING THIS TO THE FLOOR FOR
DISCUSSION
There was no discussion.
VOTE: NON OBJECTION: UNANIMOUS CONSENT.
Motion carried.
MINSCH/FOSTER MOVED THAT COMMISSIONER ZAK
Commissioner Zak stated he owns four lots in the
current boundary and if they chose to amend, he would have two lots in the new
boundaries. He also stated that he has worked for a property owner in the
overlay district.
VOTE: YES: MINSCH, KRANICH, STORM, FOSTER
NO:
HOWARD
Motion carried.
Commissioner Zak left the table.
The Commissioners expressed their agreement with
both recommended boundary changes for the zoning district.
MINSCH/HOWARD I MOVE THAT WE ADOPT PROPOSALS
It was clarified that they are referring to the
north western end of Roger’s
VOTE: NON OBJECTION: UNANIMOUS CONSENT.
Motion carried.
MINSCH/HOWARD I MAKE A MOTION THAT WE ADOPT
There was no discussion.
VOTE: NON OBJECTION: UNANIMOUS CONSENT.
Motion carried.
Commissioner Zak returned to the table.
City Planner McKibben
reviewed the staff report.
MINSCH/HOWARD I MOVE TO BRING THIS TO THE FLOOR FOR
DISCUSSION
There was no discussion.
VOTE: NON OBJECTION: UNANIMOUS CONSENT.
Motion carried.
Question was raised regarding whether Commissioner
Zak’s conflict would carry over to this action.
MINSCH I MAKE A MOTION THAT COMMISSIONER ZAK
Chair Kranich called for a second. Hearing no
response he stated the motion dies for lack of second.
Commissioner Foster raised issue that there needs
to be a powerful vegetation plan and recalled there had been discussion about a
separate section defining what that was and examples of what it would look
like. City Planner McKibben said it was her recollection that Commissioner
Foster was going to contact her to discuss it, but it never happened.
The Commission discussed the purpose of the Community
Design Manual in relation to the Gateway. It was noted if this doesn’t go
forward with the Scenic Gateway, there will be no reference to the new district
in the CDM. It was further noted that the vegetation issue can be addressed in
the future as the CDM is included on their worklist. It was recommended that
Commissioner Foster meet with City Planner McKibben so they will be ready to
address his concern when the CDM comes back for discussion.
ZAK/MINSCH MOVED TO FORWARD THE COMMUNITY DESIGN
MANUAL TO THE COUNCIL FOR CONSIDERATION.
There was brief discussion.
VOTE: YES: HOWARD, MINSCH, KRANICH, ZAK
NO:
FOSTER, STORM
Motion carried.
C. Staff Report PL 08-27(S), Supplemental to Staff Report PL
08-16(S), CUP 07-14, 3851 Homer Spit Road, Kachemak Shellfish Mariculture
Association
City Planner McKibben reviewed the staff report.
She commented that due to Commissioner Hess’s unexpected absence, the
Commission might want to ask the applicant if they want to proceed or postpone.
City Planner McKibben noted laydowns provide for the Commission.
City Planner McKibben asked Commissioners Zak and
Storm if they had reviewed the recordings and the minutes from the previous
meetings regarding the KSMA action. They responded affirmatively.
Gary Siems, President of the Kachemak Shellfish
Mariculture Association, questioned when there would be a full group. He said
that the board had discussed and agreed that they would like to proceed
tonight.
There was brief discussion and Chair Kranich called
for a break at
The meeting resumed at 8:13
Frank Griswold stated that the applicant had the
opportunity to speak regarding the postponement of when the application is
heard and he would like the same opportunity. He asked that the Commission vote
on a suspension of the rules of order so he may have the same opportunity as the
applicant.
Chair Kranich advised Mr. Griswold that he is out
of order at this time, stating that the applicant is the one who brings the
issue forward and has the right to control his business item and if the
Commission feels differently they should say so. There was no response from the
Commission. Chair Kranich asked Mr. Griswold to leave the table so they could
proceed. Mr. Griswold contended that he did not hear a vote of the Commission
regarding suspension of the rules, Chair Kranich responded that the Commission
did not voice objection to the Chair’s statement that the applicant has a right
to control his business. Mr. Griswold left the table.
Mr. Siems stated that they would prefer to proceed
with this business tonight and get through this so they will know how to
proceed.
Chair Kranich read the pending motion with its
amendments:
MINSCH/HESS I
MAKE A MOTION TO ADOPT
MCNARY/FOSTER-MOVED TO AMEND STAFF REPORT 07-103 DELETE REQUIREMENT TO lease
MCNARY/FOSTER - MOTION TO AMEND THE SUMMARY OF STAFF RECOMMENDATIONS ON
MCNARY/MINSCH -
FOSTER/ MCNARY - MOVED TO LIMIT FIXED SEATING TO
City Planner McKibben clarified that the amendments
adopted at the December 20th meeting would be addressed in the
December 5 staff report PL 07-103 and that the Commission should also adopt
supplemental staff report PL 08-27(S) as it is a continuation of staff report
PL 07-103.
It was clarified that the six parking spaces that
were accepted by the Planning Commission at the previous meeting are on the
KMSA parcel, not in the right-of-way. The applicants have applied for but have
not received their driveway permit.
MINSCH/ZAK I MOVE TO AMEND THE MOTION ON THE FLOOR
TO
There was no discussion.
VOTE (Primary amendment): YES: ZAK, FOSTER, STORM,
MINSCH, HOWARD, KRANICH
Motion carried.
There was no further
discussion on the main motion as amended.
VOTE (Main motion as
amended): YES: KRANICH, FOSTER, STORM, ZAK, HOWARD, MINSCH
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).
City Planner McKibben
reviewed the staff report.
Daniel Boone, applicant said he was there to answer
any questions. There were no public
comments.
MINSCH/STORM I MAKE A MOTION TO ADOPT
There was no discussion.
VOTE: YES: FOSTER, MINSCH,
HOWARD, STORM, ZAK, KRANICH
Motion carried.
B.
Staff
City Planner McKibben reviewed the staff report.
The applicant was not present.
Mitchell Hrachiar expressed his concern regarding
the issue with the rural residential not covering non conformity in the
district. The Cabanas are living there but he is concerned that once the non
conformity is issued that could change and result in the same issues as Lloyd
Moore’s lot. He requested the Commission consider that all lighting be box type
as outlined in the CDM and consider adding those requirements to the ADOT yard
and the gas station. Mr. Hrachiar is not against development but would like to
see it addressed in the rural residential district. He asked the Commission
consider amending the non-conforming permit for the applicant pending legal
interpretation of this and possibly include box type lighting as part of this
workshop.
Commissioner Foster disclosed a personal and
business relationship with Homer Planning Technician Dotti Harness who had a
byline on staff report PL 08-17.
ZAK MOVED THAT COMMISSIONER FOSTER
Chair Kranich asked if there was a second and
hearing none stated the motion died for lack of a second.
MINSCH/HOWARD I MAKE A MOTION TO ADOPT
There was discussion of lighting requirements in
the rural residential district. City Planner McKibben clarified that nothing in
the code or policy and procedures manual allows for conditions on non-conforming
status. She further noted that 21.44.020 (f)(2) is the only rule regarding
lighting in the rural residential district are specific to home occupation. If
lighting were addressed in the performance standards as it is in the commercial
districts, then it would apply.
VOTE: YES: HOWARD, MINSCH, ZAK, KRANICH, FOSTER
NO:
STORM
Motion carried.
City Planner McKibben read the staff report.
Don Blackwell, applicant, believes the timeframe
has been addressed. He is happy to answer any questions. Mr. Blackwell read a
portion of his appeal brief into the record. His points were summarized as
follows:
·
His
property is located in rural residential and has operated there since March of
1989.
·
Initially
he rented the property from Nick Gangl and spent a considerable amount of time
cleaning the property.
·
His
commercial activities involve the repair, maintenance, and sale of marine,
commercial, household and municipal pumps and water systems.
·
Prior
to his occupancy the property was operated by Robert Reinhart as Homer Auto
Truck and Marine Repair. Activities performed included, working on cars,
trucks, boats, marine bilge pumps, marine circulation pumps, marine fuel pumps,
vehicle pumps, and the sale of mechanical parts and pumps.
·
Mr.
Reinhart began operations in 1981, zoning was not initiated until 1982 and
continued the use until 1988
·
After
the property was vacated it was a mess, there was not a habitable house on the
property and it was in the process of being cleaned up by the State DEC.
·
The
Commission’s decision that the current non-conforming use of his property is
not the same commercial nature as the original uses is plain wrong as the focus
was narrowed to auto repair and maintenance.
·
·
Specialization
of that use has resulted in less commercial traffic, a cleaner lot and
environment, and a more compatible with the rural residential district.
·
The
code says to look at the use. In the previous action, the Commission lost track
of the category of historical use of the property.
Mr. Blackwell noted that Mr. Gangl’s letter commented
that the building was buily in the 1950’s and was
used as commercial. It has been used as the bus barn, a seafood processing
plant, auto shop, garage, and storage. Those are all service business, which
his business is as well.
Frank Griswold commented that he was party to the
appeal in 2005, but was not given notice that this was coming before the
Commission, there was nothing in the paper and the packet and agenda were not
posted at the library until today. He doesn’t think he was given adequate
notice.
Mr. Griswold said the structure may have been a
service garage in 1965 but the issue before the Commission is the use, not the
structure. It is irrelevant that the new
Bob Rinehart, Borough resident, stated that he was
the previous tenant in the building. He said the building was used as a general
auto repair facility and different activities have gone on there. He stated
that at the time he ran the garage, there were to storage containers there,
which were full of parts that were for sale, including pumps for all different
kinds of things. Retail sales could definitely be established as a previous
use. To specifically define the previous uses would be a pretty lengthy volume
in itself. He was thinking of an anecdotal story during Mr. Griswold’s
testimony that he should have brought a pump that he built there one time for
pumping out a flooding septic tank. To say that no domestic pumping activities
took place there would be wrong too.
There were no further comments.
MINSCH/FOSTER I MAKE A MOTION TO ADOPT
There was discussion regarding replatting and its
effect on non conformity. In the case of the Refuge Chapel it is non-conforming
because it didn’t meet the set back requirement and if they replat it has to be
done in such a way that the building can meet the setback requirements.
Previous advice from the Planning Commission was that when a lot with a non
conformity is replatted and the non conformity does not carry over to the new
lots, but stays with lot the structure is on. The Commission is being asked
tonight is to make a determination that the non conformity exists on the lot
and has not been expanded to any other lots.
Question was raised whether the use is automotive
use or commercial use. Comment was made that it is the commercial use which is
not allowed, that is what is not conforming.
FOSTER I MAKE A MOTION THAT COMMISSIONER MINSCH
There was no second.
Commissioner Minsch said she hadn’t considered
this. She owns a property next to
There was no further action taken.
Commissioner Foster noted he has heard that if a
business is closed because of a clean up project from EPA or DEC it doesn’t
count as discontinued use or abandoned use. Mr. Blackwell confirmed that a
clean up was done during that time and why he didn’t purchase the property
until later.
Commissioner Minsch asked if it was the
Commission’s concurrence that they are looking at any commercial use of the
property. Commissioner Foster said that it has to be the uses that are not
allowed in the district and it is commercial use. There were no other comments
or objections.
There was discussion on the difference between
discontinued use, when the use ceases for 12 consecutive months and abandoned
use, cessation of use for any length of time when combined with the intent to
indefinitely cease such use or the structure cessation of occupancy for any
length of time combined with the intent to indefinitely cease occupancy.
Commissioner Foster questioned Mr. Blackwell if the
intention of the DEC cleanup was for the toxic mess or to end the automotive
and commercial use of the property. Mr. Blackwell said it was to clean up the
toxic soils from oil spills on the property. He started the paperwork to
purchase the property in 1992 but didn’t buy it until 1994 because it took a few
years to clean it up.
ZAK I MAKE A MOTION THAT THE NON CONFORMITY APPLIES
TO THE
Chair Kranich asked for a second and hearing none
the motion died.
MINSCH/FOSTER I MAKE A MOTION THAT THE
NONCONFORMITY, THE BLACKWELL BUSINESS NON-CONFORMING USE IS STILL ON THE LEGAL
Commissioner Foster asked if a motion would be
necessary to amend that further expansion of the non conformities can only stay
on that legal lot and not expand onto other lots from the parent lot. City
Planner McKibben said it would have to come to the Commission for a
determination.
VOTE: YES: ZAK, FOSTER, STORM, MINSCH, HOWARD,
KRANICH
Motion carried.
There was no further discussion on the main motion.
VOTE(Main motion): YES: HOWARD, MINSCH, KRANICH,
FOSTER, STORM, ZAK
Motion carried.
INFORMATIONAL MATERIALS
No Informational Items were
provided.
COMMENTS OF THE AUDIENCE
Members of the Audience may
address the Commission on any subject.
Frank Griswold commented that the Commission didn’t seem to hear a word he said. If commercial were a use, there would have been no need for the board of adjustment to differentiate among public garage, service station, vehicle repair, and vehicle maintenance uses, they would just have said the use is commercial and allowed one or all. He recommended that someone should request reconsideration. He noticed that they didn’t ask staff if commercial is a use. When looking through the code look at the list of allowed and conditional uses in rural residential. The use “commercial” shouldn’t be used to decide this case. The applicants for KSMA were given the opportunity to decide when their application was heard. They see the most ardent opponent is gone and would be fools not to have this heard while he is gone. Mr. Griswold continued that Chairman Kranich’s statement that the applicant can control when the matter is heard is ridiculous. When you think about it procedurally, an applicant walks in and says tonight I don’t see the group I want to approve it, so maybe next time. He said some of these rulings are outrageous, the Commissioners don’t cite procedures manuals or bylaws, they let the applicant have forever to talk, and they let them call out from the audience. It was a very poorly run meeting and shows an extreme bias.
Mitchell Hrachiar reminded the Commission that Mr.
Moore’s lighting was increased since the acceptance of the non conformity. He
brought in four industrial type lights. Mr. Hrachiar said it is hard to quote
rules in regulations when it is not clear where to site references. As he
mentioned earlier, it is hard for a person to define rules and statutes, when
there is no code in the book and perhaps he needs to meet with the City Planner
for help. It is hard to make a case and get up before the Commission without
really having the code to know what is right or wrong. He doesn’t have any
remorse against Mr. Moore or the development he just wishes that the planning
would be developed in a proper way. He thanked the Commission for their time.
Commissioner Foster commented that he had been
approached by a public member regarding the Dark Skies Program and trying to
look at code in all the different zones to ensure the City has proper lighting
requirements. Mr. Hrachiar responded that he would be interested in being
involved with that.
Don Blackwell thanked the Commission for their time
and consideration tonight.
Chair Kranich advised Mr. Blackwell that there is a
time limit for an appeal to be filed once the decisions and findings are issued
and Mr. Blackwell can contact staff for more information on that. He asked City
Planner McKibben to bring that to the attention of the KSMA group as well.
Pat McNary, City resident, commented to the
Commission regarding non-conforming use. He thinks the Commissioners need to
ask themselves what the purpose of a sunset on non-conforming use actually is.
If there is a non-conforming use in a zone, these specific regulations are
trying to bring that particular lot that is non-conforming into conformance
with the lots around after a period of time or when non-conforming use has met
the following required criteria;
·
Once a use made non-conforming
by this title is abandoned. The Commission needs to ask itself if, in this instance, this
particular use was abandoned. If not
·
Once a use is made non-conforming
by this title, is changed. The Commission needs to ask themselves was the use changed
from its original use to the use it is now.
·
Once a use made non-conforming
by this title is discontinued. What does “discontinued” mean? He has heard here
that it means 12 months.
·
Once a use is made non-conforming
or ceases to be the primary use of a lot. He has heard this location was used for four
different things. So there are four different businesses run under one roof,
but which was the primary use?
Mr. McNary said they could get into this where the
use draws the most money is the primary use. He said he is not trying to pick
nits here, the code is written with these nits already in it, specifically so
that if that use is no longer there, the lot reverts back to the new zone. Once
the Commissioners ask themselves if it has met these criteria, and it has to
meet all four of them, then the Commission has done their job.
COMMENTS OF THE COMMISSION
Commissioners may comments
on any subject, including requests to staff and requests for excused absence.
Commissioner Howard welcomed Commissioner Storm.
She thanked Mr. McNary for his suggestions for the scenic overlay amendments;
she thought they were very helpful and thanked him for his service on the
Commission. She thanked staff for the extra effort to help her stay up on
matters while she was away.
Commissioner Foster welcomed Commissioner Howard
back and thanked staff for the continued hard work.
Commissioner Storm thanked Mr. McNary for his work
on the overlay district she felt they were beneficial changes from the original
ordinance. She would like to see the Commission work on meeting the
requirements for Dark Sky Planning for Homer so that non-conforming uses don’t
get grandfathered in without having some restrictions placed on their future
development.
Commissioner Zak had no
comments.
Commissioner Minsch apologized for forgetting where
she is about to live. She would like to have more discussion on non-conforming.
In a previous life non-conforming has to end and can’t be expanded. Homer
allows it to be expanded and it can’t be stopped. The idea of it is to make it
stop and make the district conform to the way it has changed. She is having a
hard time with the non conformity rules.
Chair Kranich agreed that the code is lacking in non-conforming
as they have found the code is lacking in a lot of areas. He appreciates the
deliberation everyone put in tonight and appreciates the work staff has done to
get information for the Commission to help them make a knowledgeable decision.
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
MELISSA JACOBSEN, DEPUTY
Approved:
[1] Clerk’s note: Mr. Griswold provided pages 1, 6, 7, 8, & 16 of the decision on appeal for the record.