Session 04-20, a Special Meeting of the Homer Advisory Planning Commission was called to order at on September 23, 2004 at 7:03 p.m. by Chair Chesley at the Homer City Hall Council Chambers located at 491 E. Pioneer Avenue, Homer, Alaska.

 

PRESENT:    COMMISSIONERS CONNOR, BARTLETT, FOSTER, PFEIL, CHESLEY, LEHNER, HESS

 

ABSENT:      NONE

 

STAFF:        CITY PLANNER MCKIBBEN

                  DEPUTY CITY CLERK JACOBSEN

 

 

APPROVAL OF THE AGENDA

 

The agenda was approved by consensus of the Commission

 

APPEAL HEARING

 

I.  Identification of the Case

 

A.  Staff Overview

 

City Planner McKibben identified the case as follows:

 

An Appeal, filed by Cook Inlet Keeper, Daniel McNevin and Robert Shavelson, received on the administrative decision to issue Zoning Permit No. 0604-036 to Rick and Connie Vann and acceptance of the Development Activity Plan for 149 Charles Way, KPB Tax ID No. 17714004; HM T6S, R13W, S20, S.M., PTN GOVERNMENT LOT 2 BEGIN INTERSECTION OF NORTH BOUNDARY LT 2 & RR ROW THEN E TO POINT 400 FEET FROM 1/16 CORNER THEN SOUTH TO THE BEACH THEN NW 100 FEET THEN NORTH TO NORTH SIDE OF OLD RR ROW THEN NW TO POINT OF BEGINNING.

 

Ms. McKibben said notice of the appeal was sent as prescribed by HCC 21.68.040, Notice of Appeal. 

 

Chair Chesley asked City Planner McKibben for the Affidavit of Distribution that establishes that all notices were properly and timely given and where and to whom the notices were given and when and where notices of the public hearing were posted and copies of notices should be attached.  Ms. McKibben said they have all of the information in the file.  She said she will put them together and get the newspaper advertisements from the City Clerk’s office.   Chair Chesley asked Ms. McKibben if she can represent that all of the information is there.  Ms. McKibben said yes, it is all there. 

 

Mr. Levesque, attorney for the Planning Commission said this is an appeal of a Zoning Permit issued by the Planning and Zoning department and there are three points of appeal.

1.  The construction project occurred without or before there was a zoning permit.

2.  The City erred by not requiring the applicant provide sufficient evidence that the applicant met the conditions of the Clean Water Act section 404.

3.  The City failed to require the applicant to show the retaining wall, rock revetment and unconsolidated fill at the site will not adversely affect adjacent and nearby public and private properties through erosion, slope failure, surface water drainage, siltation and other impacts for the foreseeable future.

 

II. Identification of Parties Participating

 

Chair Chesley asked to let the record reflect that there was a full Commission present and as the Commission’s Counsel Mr. Joseph Levesque, Attorney at Law, City Planner Beth McKibben and  City Attorney, Mr. Gordon Tans. Also present are Bob Shavelson of Cook Inlet Keeper, Mr. and Mrs. Vann and Mr. Jim Butler, representing the Vanns.

 

III.  Description of Materials under Consideration

 

A.  Record on Appeal

 

The Record of Appeal index was read into the record by City Planner McKibben and submitted to the Planning Commission and admitted as Exhibit 1 and consists of the Appeal of Zoning Permit 0604-036, 20 pages, Development Activity Plan As-built Existing Conditions page 1 of 3, Proposed Site Plan page 2 of 3, Proposed Site Plan page 3 of 3 and photos numbered A-1 through A-10 for a total of 33 pages.

 

B. Written Briefs

 

There were no written briefs submitted

 

C.  Additional Evidence

 

City Planner McKibben said that attached to the staff report there are several items she would like to submit.

1.  A copy of a letter from Gary Brogdon to the US Army Corp of Engineers and the 2 attachments to the letter, one being the as built and the other is a location map.

2.  A copy of the field notes of the site visit Ms. McKibben made with the Army Corp of Engineers employee in July of 2004, 2 pages.

3.  4 photographs from a site visit Ms. McKibben made later in July to look at the progress of the work and see that they were being consistent with the requirements of the Development Activity Plan.

 

Mr. Levesque asked the parties present if they had seen the documents that City Planner McKibben presented to the Commissioners and asked if there were any objections to those items being submitted.  There were no objections and the documents were admitted as Exhibit 2 consisting of 9 pages.

 

IV.  Preliminary Matters

 

A.  Conflict of Interest

 

Chair Chesley asked if there is anyone on the Commission who feels that they have a conflict of interest regarding this appeal that they need to bring forward. 

 

Commissioner Hess said that per HCC 1.12.070 he might have a conflict of interest for the Commission to consider. Mr. Hess stated that his company, Puffin Electric, is in a business relationship with the permitee, Sundance Construction, and his company, Puffin Electric, has done work at the subject’s property.  Mr. Hess stated the business relationship he has presently with Sundance Construction is that Sundance Construction currently has the contract for the Kenai Peninsula Initiative Housing out East End Road and his company, Puffin Electric, is a subcontractor on that project and does have a business relationship with Mr. Vann.  Mr. Hess stated that the contract is somewhere in the neighborhood of $47,000 and the value of the work on the subject property was around $260. 

 

Chair Chesley said that in the code it indicates that if there is more than a $300 financial benefit to an individual on a Commission, Board or Council that is the threshold that would constitute a conflict of interest.  Mr. Levesque read into the record  HCC 1.12.070, for clarification of a conflict of interest.

 

Chair Chesley opened the floor for the Commissioners to discuss whether or not Commissioner Hess’s business relationship with Sundance Construction poses a conflict of interest for this appeal hearing. 

 

Chair  Chesley called for a vote and clarified that a yes vote indicates that Mr. Hess does have a conflict of interest and a no vote indicates that Mr. Hess does not have a conflict of interest.

 

VOTE:     YES:  FOSTER, BARTLETT

              NO:  CONNOR, PFEIL, CHESLEY, LEHNER

 

Chair Chesley said that with 4 no votes, Commissioner Hess will be allowed to continue with the appeal hearing.

 

B.  Ex Parte Communication

 

City Planner McKibben said she was contacted by Commissioner Hess and was asked a couple of questions, but they stopped the conversation before there was any real exchange of information. 

 

Chair Chesley asked if any parties had any objection to the lack of proper notice of the appeal or of the hearing.

 

Mr. Allan Phelps asked what notice was given, he said he heard about it by word of mouth.  City Planner McKibben stated it was noticed in the Peninsula Clarion last week and the Homer Tribune on September 22nd, notices were sent to the kiosks, the parties of interest within 300 ft were mailed notices to their address on the current Kenai Peninsula Borough tax records more than 15 days prior to the hearing. 

 

Mr. Butler, stated that in the Procedures for Hearing, his clients, the Vann’s are referred to as the Permit Applicants and he wanted to clarify that they did receive their permit and since there is no permit pending and should be referred to as the Permitees. 

 

Mr. Butler also raised a question of standing and who may appeal in accordance with the HCC 21.68.020.  He said in looking at the code there are three general areas for people who have the appropriate standing to appeal.

1.  The applicant for the action or determination.  In this case, Mr. & Mrs. Vann are the applicants and their permit was granted.

2.  The Administrative official or Planning Director or any governmental official, agency or unit.  Mr. Butler asked to submit that the Cook Inlet Keeper is a non-governmental organization and does not necessarily have standing.

3.  Any person with interest in land affected by the action or determination.  Mr. Butler said he is not familiar who submitted the appeal in a timely fashion is present to provide testimony or has authorized anyone on their behalf to appear.  He said he understands Mr. Shavelson is present on behalf of the Cook Inlet Keeper but doesn’t believe that properly fits with in the appeal section of the ordinance and doesn’t believe the other parties identified are present to submit evidence. 

 

Bob Shavelson stated for the record that he is Executive Director of the Cook Inlet Keeper and is also listed in the appeal as an individual appellant.  He stated that the Cook Inlet Keeper is a Corporation organized under the laws of the State of Alaska as a Corporation are defined as a person under State and Federal Law which he feels fits the description under 21.68.020 a. 3. 

 

Chair Chesley asked Mr. Shavelson to speak to his interest in land on item 3.  Mr. Shavelson said that his interest in the land is generally aesthetic harm and erosion to public property and restricted access.  Chair Chesley said, for clarification, that the Homer City Code does not specify that a person has to have financial interest in the land and in Mr. Shavelson’s case he has a public interest in the land.  Mr. Shavelson concurred.  Mr. Shavelson stated that as a City resident of Homer he lives in close proximity to the property, not within 300 feet, but he uses and enjoys Bishops Beach 3 to 4 times per week.  He said that his aesthetic interest and access issues are harmed and also by what he believes are invariable erosion problems that will occur on public property and the Bishops Beach Park.

 

City Planner McKibben referenced HCC 21.68.020 c. for the record in attempt to clarify who may be a person with interest in land. 

 

Mr. Levesque asked who Daniel McNevin is and if he was present.  Mr. Shavelson said that Mr. McNevin does own property with in 300 feet of the subject property, he was noticed and authorized Mr. Shavelson to represent him at this hearing.  Mr. Shavelson said Mr. McNevin is not a member of the Cook Inlet Keeper.  Mr. Levesque told Chair Chesley that there is an objection by Mr. Butler and the Commission needs to make a determination whether Mr. Shavelson has standing in this case.

 

Chair Chesley clarified that the Commission needs to make a determination whether Mr. Shavelson can participate as a duly recognized interested party.  Mr. Chesley said a yes vote means that Mr. Shavelson may participate and a no vote means that Mr. Shavelson may not participate. 

 

VOTE:     YES:  CHESLEY, PFEIL, CONNOR, LEHNER, BARTLETT, HESS, FOSTER

 

Mr. Shavelson is recognized as a participant.

 

V.  The Appellant may withdraw its appeal at any time prior to the decision by the Planning Commission.

 

Mr. Shavelson stated he had no desire to withdraw his appeal. 

 

VI.  Public Comments - Open Forum

Public Comments are limited to the points of appeal.

 

A.  Review of procedures to be followed and acknowledgement by parties that procedure is understood and accepted.

 

Chair Chesley reminded the audience that public comments need to be directly specific to the three points of appeal listed in the Appeal of Zoning Permit 0604-036.

 

Bill Smith spoke and clarified a comment that was made stating the underwater properties adjacent to the property in question are not owned by the State, but are owned by the City.

 

Allen Phelps spoke as a neighboring property owner who does live in the area of the subject property at Lot 14, Berry Addition.  He said he would like to speak to the third point and potential for adverse effects cause by the structure that extends out from the bluff.  He said it is a difficult thing protecting private property rights and balancing it with community good, but it becomes more clear cut when actions performed on private property adversely affects other peoples private property and he believes that is a real potential in this case.  Mr. Phelps said that the bluff and beach are at a very delicate balance and any small change can have a large effect.  Since the 1964 earthquake it has had a long period of stabilization.  He said he fears that any action with in the tidal area could easily throw the balance off.  Mr. Phelps spoke of a workshop in Homer in March that focused on coastal erosion and offered the book that was used in the workshop titled Coastal Dynamics on the Western Kenai Peninsula for evidence.  He stated that his main concern is that the structure extends out from the base of the bluff.  He feels that even though the structure is above the mean high tide line, it is within the storm surge tides, which, he says, causes the erosion.  Mr. Phelps said he is concerned that the storm surge tides will eventually affect his property.  He said one problem is there is no clear City guideline for building within the tidal zones and would urge the Council to consider that.  Mr. Phelps says he believes that when something like this is done, it needs to be done looking at the entire area, not just a specific property and in this case, that was not done.

 

Commissioner Hess asked Mr. Phelps if he was aware of development happening and if he expressed any concerns to the City.  Mr. Phelps said he had didn’t talk to the City but he knows Commissioner Foster and talked to him about it.  He found out that there was a stop order issued and assumed that something was being done about it, then they started working again.  Mr. Phelps said he did not contact the Planning Department.

 

Chair Chesley said that Mr. Phelps had offered the book that was used in the workshop titled Coastal Dynamics on the Western Kenai Peninsula for evidence.  The Commission agreed that the book be accepted.  Chair Chesley asked if there were any objections.

 

Mr. Butler objected as to the relevancy of the workbook to the evidence and whether City Planner McKibben had the publication when making the decision in this case.  Chair Chesley asked Ms. McKibben if she was aware of this publication and she said yes that she has a copy.  The book titled Coastal Dynamics on the Western Kenai Peninsula was admitted as Exhibit 3.

 

Debra Spencer spoke to the Commission but it was determined that her concerns about her property located out East End Road were not relevant to the three points of appeal for this case and she was invited by Chair Chesley to attend a regular meeting of the Planning Commission to discuss concerns about her property.

 

There were no more public comments.

 

VII.  Presentation of Evidence

 

Chair Chesley called for a 5 minute recess at 8:20 p.m..  The Meeting was called back to order at 8:31 p.m.

 

A.  Opening Statements

 

1.  Appellant

 

Chair Chesley swore in Mr. Shavelson.

 

Mr. Shavelson thanked the Commission and said the issues hear are what is the role and legal obligations of the City of Homer in implementing the Zoning Code, it is not whether a property owner can develop private property, but rather can a private parcel development be allowed to go forward if it is going to harm private and public lands in the vicinity.  Mr. Shavelson discussed his view of the three points of appeal. 

 

1.  The construction project occurred without or before there was a zoning      permit.

 

He said that the public interest requirements of the zoning permit before construction starts up should be obvious.  The public and private interests need to be considered before setting forth in a direction that may be irreversible.

 

2.  The City erred by not requiring the applicant provide sufficient evidence that the applicant met the conditions of the Clean Water Act section 404.

 

Mr. Shavelson said there was reliance on a document produced in 2000 from the Army Corp of Engineers, which has jurisdiction under the Clean Water Act section 404 over wetlands and tidelands filling.  The year 2000 determination was used by the Planning Department but it wasn’t until July 2004 that the Planning Department received the document that the year 2000 determination was based on.  His point being that the Planning Department couldn’t know that no permit was required now in 2004.

 

3.  The City failed to require the applicant to show the retaining wall, rock revetment and unconsolidated fill at the site will not adversely affect adjacent and nearby public and private properties through erosion, slope failure, surface water drainage, siltation and other impacts for the foreseeable future.

 

Mr. Shavelson said he had several points to the third point.  One being the Planning Department has a duty to reject non-compliant applications.  Second the Site Development Requirements mandate no harm and he referenced HCC 21.48.060 a.1.  He says it is the Planning Department’s duty to apply the provisions of the code to the permit and enforce the zoning code and they felt it wasn’t done. 

 

2.  Permitee

 

Mr. Butler thanked the Commission again for their time and patience.  Mr. Butler said they are not here to argue anything with the Commission but to let the record reflect that the Vann’s have complied with all the terms of their permit.  He said that it is their understanding that the issue before the Commission is whether the Commission believes that the City administration, through the Planning Department followed the applicable ordinances when issuing the permit and to keep in mind what is not at issue and that is, one, that the application for the permit did not contain any errors and there has been no allegations of that and also that there has been no allegations of change of location or size in what the permit was allowed to do from a construction standpoint.  Mr. Butler said there was no change in the use or intended use of the construction site or the building that was put there and no failure to comply with the terms of the permit.  He feels it is important to keep the non-issues in mind because in his review of the Code, those are the only area of revocation of a permit that has been issued.  Mr. Butler commented with regard to the three points of appeal.  On the first point, the Vann’s made a reasonable inquiry with the City prior to starting work and were originally advised a permit was not required.  When they were notified a permit was required, they stopped work, met all requirements from the City, and were issued the permit, after what they believe to be, reasonable and conscientious investigation by the Planning Department.  Mr. Butler said they believe the second point to be factually false in that the Corps of Engineers has made determinations as recently as a few months ago when the Corp made site visits and with the review of the project at hand.  Finally the interpretation of the code is inaccurate in that the argument raised by the appellant seems to suggest that the City, when issuing a permit, has the obligation to ensure and guarantee in some fashion that there won’t be some intended consequence from a properly permitted project.  The City can’t let their ordinances be interpreted that it or its staff has to make the determination that they are assuring that an unforeseeable consequence that may happen doesn’t necessarily prohibit issuance of a valid permit.  Mr. Butler said that they are here to help the Planning Department explain the facts and circumstances for the decision to issue the permit, to make sure the Commission understand that the Vann’s are here and have invested a significant sum of money to improve a piece of property so their family and friends can enjoy it and their decades of work in Alaska have never been intended to harm in any way neighboring properties or the environment.

 

3.  Appellee

 

City Planner McKibben and Mr. Tans had no opening comments.

 

B.  Appellant Presents Evidence

 

Mr. Shavelson said he had several things to introduce into the record.  He presented a letter dated September 23, 2004 that lays out what he wanted to discuss,  but he did not have copies for everyone. 

 

Mr. Butler said they would like to be copied with all of the evidence and rather than objecting to each item, he asked to reserve the objection for the purposes of moving the proceedings along. 

 

The letter dated September 23, 2004 from Mr. Shavelson, consisting of 5 pages was marked as Exhibit 4 but not yet admitted.

 

Mr. Shavelson said he had 3 pieces of, what he considers, expert testimony that he would read from then give them to the Commission to review.  The first item is from Mr. Orrin Pilkey, James B. Duke Professor of Earth and Sciences emeritus, Division of Earth and Ocean Sciences, Nicholas School of the Environment and Earth Sciences, Duke University.  Mr. Shavelson read into the record an excerpt of an email from Mr. Pilkey to the Planning Commission via Mr. Shavelson recommending that the revetment be removed.  Attached to the email are a summary of Mr. Pilkey’s certifications and a list of available publications.  This was labeled as Exhibit 5 consisting of 4 pages, but not yet admitted.

 

The second item is a letter to Mr. Shavelson from G. Carl Schoch, Science Director, Prince William Sound Oil Spill Recovery Institute.  Mr. Shavelson read an excerpt of the letter from Mr. Schoch commenting on potential erosion problems as a result of the structure.  Attached to the letter is a biographical sketch of Mr. Schoch.  This was labeled as Exhibit 6 consisting of 3 pages, but not yet admitted.

 

The third item is a letter to the Planning Commission from Owen K. Mason, Ph.D. from GEOARCH Alaska.  Mr. Shavelson read an excerpt from the letter commenting on design flaws of the revetment and its stability in relation to high tides and storms.  Attached to the letter is a summary of Mr. Mason’s certifications.  This was labeled as Exhibit 7 consisting of 4 pages, but not yet admitted.

 

Mr. Shavelson presented an excerpt of pages 206 - 209 from the book Living with the Coast of Alaska by Owen Mason, William J. Neal and Orrin H. Pilkey.  This excerpt includes information from the bluff revetment project at the Elks lodge in Homer and the adverse effects there.  This was labeled as Exhibit 8 consisting of 3 pages, but not yet admitted.

 

Mr. Shavelson also presented a print out of a GIS map from the Kenai Peninsula Borough parcel viewer.  It is an aerial photograph with an overlay of property lines.  This was labeled as exhibit 9 consisting of one page, but not yet admitted.

 

Mr. Shavelson said that the City of Homer has a lot of duties and responsibilities under the Planning Code.  One is that it does not have the discretion to say if something almost complies with the code or not, it either does or it doesn’t.  He cited HCC 21.42.030 b. and commented on the Planning Directors responsibility to deny a permit that doesn’t meet the factors.  Mr. Shavelson also referred to, what he believes to be, one of the most relevant factors which falls into the Site Development Requirements stated in HCC 21.48.060, emphasizing that development shall not adversely impact other properties.  Mr. Shavelson commented further on the Code placing the primary burden of not adversely affecting neighboring properties on the applicant and as the legal obligation governing the site development the applicant has to provide proof that the proposal will not adversely affect neighboring property.  He said he felt it was unrealistic to expect the property owner to voluntarily protect property down drift from them for example, and that is why we have Planning and Zoning Authorities.  Mr. Shavelson said, in reference to the zoning permit in the record, that in response to the requirement that there be no harm to other properties the permit applicant says all work is going to be done on private property and they are going to re-seed the property and the DAP has areas that were deemed to be not applicable.  Mr. Shavelson said he thinks that the application was deficient and the City has the responsibility to get meaningful information behind these types of things.  He also said this is not an issue where they are asking for the City to ensure forever that there is going to be no harm, but to make reasonable effort to collect information to give a reasonable person the assurance that this is not going to wash away, refract wave energy and erode the Bishops Beach parking lot and so forth.  He believes that there is middle ground here and the City did not reach the middle ground in the review of this specific permit.

 

Commissioner Bartlett asked Mr. Shavelson if the experts he quoted had actually gone to the sight to look at it or if they had based their reviews on information provided to them by Mr. Shavelson.  Mr. Shavelson said that none of them have been to the property since the construction commenced but all have been there prior to the development and he sent them numerous aerial and ground photographs that show the extent and scope of this project.  Commissioner Bartlett asked Mr. Shavelson to clarify what middle ground he was referring to in his previous comments.  Mr. Shavelson said he thought there needed to be more serious conversation prior to the approval of this project as to what the adverse effects to adjacent properties would be and he doesn’t feel that was adequately considered.  Commissioner Bartlett asked Mr. Shavelson if he has seen or if he believes any adverse effects have occurred since the project has been completed.  Mr. Shavelson said the harms of beach access and aesthetic concerns have been affected, and the other harms will show over time.  Commissioner Bartlett asked Mr. Shavelson what the difference of the effect would be between a normal high tide surge or storm that will erode the beach regardless if there is a structure there and how may or may not be compounded.  Mr. Shavelson said the 2 processes that they are concerned with is “Lateral Drift” which is movement of sands laterally along the beaches, the predominant direction is along the beach from the project sight to Bishops Beach, and the construction could trap the sand.  The other concern is wave energy and refraction, which will accelerate erosion.  Commissioner Bartlett said a lot of the information that is backed up by other futuristic problems that have occurred in other places and this is a potential problem that could occur and thanked Mr. Shavelson for pointing out the extremes.

 

Mr. Shavelson asked Chair Chesley to present another item of evidence that he failed to bring up previously, which is an aerial photograph taken less that one month ago that shows the amount of change to the bluff and beach in that area.  It was labeled as Exhibit 10, but not yet admitted. 

 

Commissioner Bartlett asked Mr. Shavelson if he felt that the Permittee stayed within the bounds of the permit.  Mr. Shavelson said no, there was a requirement for a siltation fencing and that had not occurred.

 

Commissioner Lehner asked Mr. Shavelson if he would comment on the revetment in front of the Elks and the Eneboe and Bell properties and what affects those have had on other properties.  Mr. Shavelson said that the Eneboe & Bell revetment are new and discussed in the book along with the Elks Lodge and summarized the issues of the Elks Lodge revetment that are referenced in Exhibit 8.

 

Commissioner Hess asked Mr. Shavelson what it was about this project that caused the Cook Inlet Keeper to get involved.  Mr. Shavelson said the large distinction with this project is that the bluff has been denuded and graded and then an attempt to build out onto the beach.

 

C. Permitee Evidence

 

Mr. Butler presented 2 photographs of the property now that it is completed.  The photograph was labeled as Exhibit 11. 

 

Chair Chesley called for a recess to make copies to present to the other parties at 9:20 p.m.

 

Chair Chesley called the meeting back to order at 9:40 p.m.

 

Chair Chesley said they would be addressing the Exhibits 4-10.  He asked if there were any objections. 

 

Exhibit 4,   Mr. Tans said he objected in part to the document with regard to item VI. Public Trust Doctrine on page 4, which he thinks, goes beyond the scope of the points of appeal.  Mr. Butler objected that it is not an exhibit, it is a brief and some of the arguments are not part of the appeal. 

 

The Commission admitted Exhibit 4 with the objections noted. 

 

Exhibit 5,  Mr. Tans said he had no objection to Exhibit 5 or any others that were offered.

Mr. Butler objected because it is based on information without an actual site visit. 

 

Exhibit 6, Mr. Butler objected to this document that talks about seawalls built in the surf zone and the property is not in the surf zone and that was determined by the Corp of Engineer and the EPA.

 

Exhibit 7, Mr. Butler objected because he is applying his opinion based on other standards, not the standards that are in the code for issuing a permit.

 

Exhibit 8,  Mr. Butler provides information about project walls, not the wall of permitted issue. 

 

Exhibits 9 and 10, Mr. Butler said he had no problem with. 

 

Mr. Shavelson replied with comments attempting to reconfirm that the information offered was from sources who are experts in their fields, who have seen various photographs of the subject property and who are very knowledgeable about the area where the property is located. 

 

The Commission agreed to admit Exhibits 4 - 11 with objections noted.

 

Mr. Butler said that their purpose here is not to argue what could happen if and maybe and the future of Bishops Beach with storms to come.  Mr. Butler said there was a reasonable inquiry by the Vann’s prior to starting the job and were told they could start.  Once they were notified that they could not complete without a permit they stopped work, made every effort to comply with the ordinance, and preceded accordingly working with a variety of agencies including the Planning Department.  The wall that was developed does not go to the outer perimeters of the subject property, therefore any problems that may occur will happen on their property first and they will take measures to protect their own property and protect what they have built, and with the investment they have made, they will do what they can to mitigate any problems with the wall.  Mr. Butler said that in regard to the location of the wall and the tide line, if a federal agency with jurisdictions over the tideland had any concern and felt the need to assert jurisdiction, they would.  There have been site visits by the EPA and the Corp of Engineers, all who are experts in evaluating where this project is, their jurisdiction and public interest.  Mr. Butler said it is his understanding that the ordinance does not necessarily impose on a property owner that has beach property the right to free public access across their private property.  He said there has been no attempt to prevent people from enjoying the beach on the Vann’s property in front of the revetment, and as long as people act neighborly, that is not expected to change.  Mr. Butler said he appreciated Mr. Shavelson confirming for the Commission that he is not an expert in these matters and also appreciates that the City does have experts.  It is his understanding that the City had a professional engineer who is currently licensed by the state evaluate the project.  It is important not to confuse seawalls built prior to the adoption of the ordinance and development plan requirements that are in the current code.  Mr. Butler said with the documentation he has seen, the investigation that the Vann’s participated in, some of the feedback they receive from people they worked with, including a professional engineer who visited the site, it was recommended that the use of rocks is preferred method to mitigate the erosion; it helps refraction and the sand flow deposit itself in a natural way.  Because this project was installed above the storm surge on their property, the Vann’s felt this was the best way to go.  Mr. Butler said he hopes the Commission looks closely at where this site is, looks at the property line and the amount of beach that was left exposed to continue access for the public.  He restated that the Vann’s have followed the code and followed the new ordinance from the City and they are in full compliance.

 

Commissioner Foster said that according to Mr. Butler the EPA has reviewed this project, but he did not see anything from the EPA in the packet.  Mr. Butler said that he spoke to Phil North who made a couple of sight visits and did not have anything to report and if there was an opportunity to impose jurisdiction on this project, he would.  Commissioner Foster asked for clarification about the lot lines.  The group reviewed the photos and plats briefly to Mr. Foster’s satisfaction.

 

Commissioner Hess asked who told the Vann’s that no permit was required.  Mr. Butler said the Vann’s had spoke to the Public Works Department, when they got the stop order they contacted the Planning Department and began that process.  Commissioner Hess asked for clarification as to whom they spoke to and when.

 

Chair Chesley asked Mr. Butler to clarify if the development was engineered.  Mr. Butler said that an engineer visited the site during construction.  The code required the as-built survey, which is done by an appraiser, but Mr. Butler said he is not aware of anything in the Code that required and engineers stamp on the construction.  Chair Chesley said he is trying to clarify to what extent of the development was engineered.  Mr. Butler said as far as he knows, it was not an engineered project.  The engineer he spoke of was there under a general context, but the Vann’s were not using an engineered set of plans.  Chair Chesley said the DAP was modified based on comments provided by Public Works, but there is no record of what the comments were.  Mr. Butler said he is not aware of any notes, perhaps they are with the field notes that the City may have.  Chair Chesley asked if the Vann’s have any information relating to construction techniques that would indicate compaction tests on the project.  Mr. Butler said no, the Vann’s relied on their 20+ years of construction experience and experience building retaining walls in similar situations around the state. 

 

Mr. Shavelson commented on difficulties he has trying to get the Corp of Engineers to come and do sight inspections and it is not as easy as Mr. Butler makes it sound.  He commented on the lack of planning on the part of the Vann’s, there was no compaction test done, and he guarantees that it will wash away at the first storm.  He said there should have been more scrutiny on the part of the Planning Department.

 

Commissioner Bartlett asked if there were any attempts to contact to the Corp of Engineers or just rely on the local office here.  Mr. Bartlett said that prior to the purchase of the property one condition of sale was to get information about the status of the property and they spoke to the Corp and a number of other State Agencies that could assert jurisdiction and all expressed they did not believe that they had jurisdiction over the proposed site development.

 

D.  Appellee Presents Evidence

 

Mr. Tans said that City Planner McKibben had submitted the staff report along with exhibits and that is the primary piece of evidence the City will put in the record. 

 

Chair Chesley swore in City Planner McKibben.

 

City Planner McKibben began at the first point of appeal stating that the work on the subject property began without a permit.  A stop work order was issued, the work stopped, a permit was issued and work began again.  She responded to an earlier question by Commissioner Hess as to when the Vann’s received information from Public Works.  It is her understanding that it was some time ago before the Code required a permit for alteration of a lot.  She said that they received a copy of the letter from the Corp stating no jurisdictional determination was required which is valid through 2005.  The applicant told her that it was the same project, in hindsight she said it would have been prudent to obtain a copy of what the Corp had reviewed, but later when she did review it, the project was the same.  Ms. McKibben said she did do a site visit with the Corp of Engineers and the field notes are in Exhibit 1.  She said the Development Activity Plan for this project is the first that has been submitted and reviewed and it was noted that there were items listed as not applicable.  Ms. McKibben said in looking at the Code you know the DAP was required due to the amount of fill and impervious coverage to be added to the sight with the parking area, driveway and building and the items on the DAP that are listed as not applicable have to do with natural or human made drainage courses and there are no drainage courses on the sight.  Ms. McKibben said the DAP is not geared for development on a coastline but more toward stream ways and storm water, protecting properties and water ways down stream from increases of volume, velocity and flow rate of storm water.  In the DAP there was an assertion made that there was no silt fencing, but one photo from her site visit in Exhibit 1 shows a silt fence.  Ms. McKibben said that she had Public Works Director Meyer review the DAP and any of the comments he made are incorporated into the approved DAP.  Chair Chesley asked what Mr. Meyer’s analysis of the issues he had was and what mitigation measures he was proposing.  Ms. McKibben said he reviewed the DAP, the site plan and the as-built.  Chair Chesley asked Ms. McKibben what the modifications were that she had asked for.  Ms. McKibben said she had asked for more information, more expansive descriptions from what was submitted initially and the modified plan was submitted to Mr. Meyer for review.  She asked Mr. Meyer to review the plan because he is more knowledgeable and experienced in evaluating projects and a DAP and would better find errors and omissions than she would.

 

Commissioner Hess asked again about the timeline.  Ms. McKibben said the Vann’s submitted a zoning permit application, attached to the application was the letter that said no jurisdictional determination is required.  Ms. McKibben said the application for the permit was dated June 15 and in July, she requested from the Corp, a copy of what they reviewed when they issued their letter in 2000.  Page 11 in Exhibit 1 was the letter attached to the zoning permit application.  The letter dated July 27 is what she requested later. 

 

Commissioner Lehner confirmed that the project plan that the Corp had reviewed previously was the same as the plan of what was built.  Ms. McKibben concurred.  Commissioner Lehner asked about the significance of the picture of the culvert.  Ms. McKibben said it is her understanding that it was a city culvert in the right of way that hung out over the top of the bluff and the Vann’s extended that down to drain down to the beach.  Ms. Lehner asked if anyone had overseen the modification of the culvert on behalf of the City.  Ms. McKibben said she did not know if some one from Public Works had or not. 

 

Commissioner Foster said that he had missed the answer to the question about who at Public Works said that no permit was required.  Ms. McKibben said she could not answer who the Vann’s talked to, but her understanding is that it may have been before ordinance 04-11 was adopted which required a permit for alteration of a lot and initially the Vann’s had not intended to construct a building on the lot, but when they had to get a permit decided to do the full development plan.  Commissioner Foster asked if there was any discussion about the type fill that was going to be put in the area.  Ms. McKibben she understood that the fill came from the construction site for the Kenai Housing Initiative project.  Commissioner Foster said he was curious because one of the photos shows a tire in the fill area.  He also asked about the culvert and Ms. McKibben’s earlier comment regarding an area the Vann’s had noted as not applicable referencing drainages.  Ms. McKibben said she was referring to open drainages and open waterways.  Mr. Tans said this project would have no effect on the culvert; the drainage for this culvert is coming from somewhere else. 

 

Commissioner Bartlett asked how much percentage of the job was done when the stop work order was issued and the permit was issued.  Ms. McKibben said she doesn’t know a percentage but there was a significant amount of fill placed on the site and a significant amount of fill was deposited after the permit was issued, plus the construction of the wall.  Commissioner Bartlett asked if Public Works Director Meyer had relayed that any form of substandard work was occurring.  Ms. McKibben said no.  Mr. Bartlett asked if in her belief all of the work the property owners did complied with the permit process that the City gave them.  Ms. McKibben said that the Vann’s made an outstanding effort to comply with the requests of the City.  Commissioner Bartlett asked if during the stop work process the Cook Inlet Keeper or anyone else had come in to discuss the DAP any further or make comments to the existing plan in place.  Ms McKibben said no.  Commissioner Bartlett said on Cook Inlet Keeper Exhibit 4 the conclusion is that there should be a reversal of what has occurred and the property owners should remove the structure and rehabilitate the disturbed area of the bluff.  He asked City Planner McKibben if she was in the opinion that the Vann’s have violated the permit in a way that would suggest that severe of an action.  Ms. McKibben said they have complied with the permit that was issued.  Mr. Bartlett thanked Ms. McKibben. 

 

Commissioner Hess and Chair Chesley questioned City Planner McKibben how the workshop for the Coastal Dynamics on the Western Kenai Peninsula effected her decision in permitting this development.  Ms. McKibben said there wasn’t anything in the Code that would allow her not to issue the permit.

 

Chair Chesley commented on the process of analyzing a conditional use permit, the staff reviewing and doing research on the information the applicant supplies on the permit, then  he said on the staff report Ms. McKibben commented on the lack of staff and funding to review plans in detail.  He asked Ms. McKibben how she evaluated the information the applicant made.  Ms. McKibben said that the zoning permit process is different from the conditional use process, there are differences in the requirements, and that the zoning permit could be more structured in the future.  She said with regard to a zoning permit, the application is reviewed to make sure it is complete and all required information is submitted, that the use is consistent with the Code, whether it requires a traffic impact analysis, if it needs DAP or storm water plan, then evaluate it based on the standards in code.  Chair Chesley asked how Ms. McKibben evaluated the significance of the impact of the DAP.  Ms. McKibben went through the points and requirements of the plan with the Vann’s.  She asked for more information where needed, which they did, to ensure they met the Code.  She had the Public Works Meyer, who is more knowledgeable in construction, review the DAP as a second check to make sure the DAP was sufficient. 

 

Commissioner Foster said one thing that came up in the workshop is that the City could be liable for the impacts that occur based on the development they approve.  City Attorney Tans said that what Mr. Foster said is wrong as a matter of law, that the City would be liable for granting a land use permit. 

 

Chair Chesley asked if City Planner McKibben felt that she had adequate funding and staff resources to review the Vann’s application and DAP in detail.  City Planner McKibben said there would be less pressure and more time if there were more staff or more resources to review all permits.  She said this was the issue of the day and you make the time, but the time is not with out pressure of the other things that are not being done.  Chair Chelsey asked that if she was saying that if she had more staff, more time and more resources, that she would have come to a different decision on issuing the Vann’s permit.  Ms. McKibben said no, she would not have come to different conclusion.

 

Commissioner Connor asked if the land on the outside of the Vann’s seawall is City owned.  Ms. McKibben explained that the Vann’s property line extends past the wall, and beyond the property line is the City’s tideland.  Commissioner Connor asked if the discussion about the Corp was a moot point if it is the City’s responsibility.  Mr. Levesque said as far as the Corp is concerned, they don’t care who owns the property, if it is deemed to be wetlands and you want to put fill in it, you need to get a 404 permit.

 

Chair Chesley called for a recess at 11:10.  The meeting was called back to order at 11:15.

 

Mr. Butler had no questions for Ms. McKibben

 

Mr. Shavelson said he is curious as to the amount of scrutiny the DAP received from Public Works Director Meyer.  City Planner McKibben said that what was sent to Public Works and date stamped June 29th was the permit signed by Ms. McKibben, the DAP and letter that went to the Vann’s dated June 25th.  The review of the DAP by Mr. Meyer took place before she signed the permit.  Public Works was still issuing zoning permits so it went back to Public Works after she signed it to be entered into the system and that is when it was date stamped on the 29th and returned to the Planning Department.  Mr. Shavelson asked Ms. McKibben if she makes any special consideration when a plan has already been started before it comes to her.  Ms. McKibben said she might try to be more expeditious and give it more priority than someone with plans not to start work until later but it would be case specific.  Mr. Shavelson asked with this specific project did Ms. McKibben, the Planning Department or the City of Homer consider adverse effects to other properties in the area and if so, to what extent.  Ms. McKibben said yes, but to what extent is difficult to quantify.  She said they reviewed it for the site development requirements, the performance standards and the DAP and the assumption is that if they can meet those requirements there won’t be any significant adverse impact.  Mr. Shavelson asked if the zoning code applies only to the point in time or if it has a broader application.  Ms. McKibben said it is two fold.  The site development is usually considered during the development of the site, the performance standards primarily focus on the site during the development.  The use of the site is the primary focus of the Zoning Code.  Mr. Shavelson said that one size doesn’t fit all and asked Ms. McKibben if she agreed that a use in one area may not be well suited for another area.  Ms. McKibben said that may be, but if the Code allows it, there is not a mechanism to say no.  The Vann’s were able to meet the performance standards and the Planning Department approved the DAP.  She said there does not appear to be any harm made to neighboring parcels from the development that was done on the site and there is really no way to know if there will be any adverse effects in the future.  Mr. Shavelson said there had been talk of engineers previously and asked Ms. McKibben if there was a design plan for this.  Ms. McKibben said she did not ask for nor did she see any engineered designs. 

 

Chair Chesley asked if there were any more questions from the Commission.

 

Commissioner Bartlett asked if this was the first permit they processed.  Ms. McKibben said they had done one for the Cordova’s Dental Clinic because of the amount of impervious coverage.  Commissioner Bartlett confirmed that with regard to the Vann’s case, notice was given to the surrounding property owners.  Ms. McKibben said the Code requires that notice be sent regarding the notice of the appeal hearing and was mailed to property owners with in 300 feet.  She said the Code does not require that they tell the property owners of the zoning permit or the work is taking place, the notice they received was of the appeal hearing.  Commissioner Bartlett commented that with Ms. McKibben’s professional studies and getting to the point where she is today one of the main functions is always considering what property rights are going to be abused around whatever decision is required of her or the Commission and while it is difficult for her to explain technically all of what was done, he asked if she had given the property rights a consideration of some sort.  Ms. McKibben said yes. 

 

Commissioner Hess said the thought it was important to determine whether the City made an error by advising the Vann’s that they did not need a permit, and when that happened.  In his opinion, the Commission has to have that information.

 

Chair Chesley said that in her response to Mr. Shavelson that if there is a use permitted by the Code, that there is nothing in the code not to permit a use.  Ms. McKibben said if there is a use that is permitted in the district and meets the requirements of the Code, it is difficult not to permit it.  Chair Chesley said that one of the overriding catch all things in the Code is that if there is any significant health or public safety concern, you would have the power not to allow a use to go forward.  He asked if this project had any significant health or public safety concerns that would have prevented her from issuing the permit.  He asked if she was confused in her understanding of the Code, and the project did have health and safety concerns but that Ms. McKibben felt you couldn’t stop it because of her understanding of the Code.  City Planner McKibben said she didn’t feel there were grounds with in the Code not to allow her to issue the permit.  She said they met the requirements and the standards.  Chair Chesley asked if she felt there were any overriding health and safety concerns that would have that flagged your concern but you felt you could not address it because of your understanding of the Code.  City Planner McKibben said issuing this permit was not an easy thing to do, but she did not feel she had a mechanism to deny it that would stand up.  Chair Chesley said in the Development Activity Standard in the Code there was an exchange about how you evaluated the project.  Chair Chesley read HCC 21.48.060 e. 1. into the record.  He asked Ms. McKibben as she evaluated the project during the construction phase if she took into consideration all subsequent phases of the development.  Ms. McKibben answered yes.  Chair Chesley asked Ms. McKibben how she did that.  Ms. McKibben said in the DAP there are items that are clearly geared toward what happens during the construction phase of the project and there are others that last for the duration or the life of the project. 

 

Mr. Shavelson said on the DAP, number 17 b. says, “Any damage to adjacent private or public property improvements shall be restored.” He asked Ms. McKibben if that meant during construction activities or for all subsequent phases as the DAP ordinance suggests.  Ms. McKibben said that the City Code says in the DAP item 17 b. the developer shall at all times protect adjacent private properties and public ROW or easement from damage occurring during or resulting from grading operations.  The developer shall restore public damage from his or her operations and the Code says, as it has been pointed out, that development shall not adversely impact other properties.  Mr. Shavelson said hypothetically, when a big storm comes and washes out this terrace, would that be something that she felt a zoning violation would be appropriate.  Ms. McKibben said her understanding of the DAP is as a result of their work, they are responsible for any damages occurring.  Mr. Shavelson asked if they had secured this with a bond and Ms. McKibben said there is no requirement in the Code that the property owner secure a bond.  Mr. Shavelson asked if, in her opinion, that this binds them legally to correct any wrong to another property interest in the area.  City Attorney Tans objected to Mr. Shavelson’s comment.  He said Ms. McKibben cannot give that kind of a legal opinion.  Mr. Levesque asked Chair Chesley if he understood the objection and Chair Chesley said not really.  Mr. Levesque said that Ms. McKibben is not an attorney.  Mr. Shavelson is asking for a legal conclusion and Mr. Tans objecting to the question because she is not in any position to give an answer.  Mr. Levesque said the only questions that can be asked of City Planner McKibben should relate to what she does and what her knowledge base is.  Chair Chesley, asked Mr. Shavelson if he could rephrase the question.  Mr. Shavelson asked Ms. McKibben, as Planning Director do you believe that provision 17 b. in the DAP will require this particular property owner to compensate anyone who is subsequently harmed by this site design.  City Attorney Tans raised the same objection.   Mr. Shavelson said that he noted the objection and could she still answer the question.  Chair Chesley asked Mr. Tans to expound on his objection.  Mr. Tans said that Mr. Shavelson is still asking for the same legal opinion and she is not qualified to answer it.  Chair Chesley asked Mr. Tans if he could answer the question since he is the City Attorney who helped review and draft the Code.  Mr. Tans said in his opinion, section HCC 28.48.060 a.1 clearly puts the responsibility on the property owner to not adversely impact other properties by causing damaging alteration of surface water drainage, surface water ponding, and etcetera.  That is what is meant when it says the primary responsibility is on the property owner to do this. Mr. Tans said it is not a permit standard, in the general sense that yes you look over the code to make sure there are no violations before issuing the permit, but it is not City Planner McKibben’s role to make sure that the property owner never causes damage, the City cannot undertake that job.  The taxpayers of Homer would never pay the amount of money it would take to make sure that no private property owner affected a neighbor through something they did on their land, it would not be stood for.  This is an issue of nuisance law and an issue of property law, if you do something on your land that is negligent or unreasonable and you damage your neighbors property, they have a right to seek damages from you, whether they win or not has to do with the facts and circumstances of the case, but that is a basic principle of ordinary common law.  Chair Chesley asked if that answered Mr. Shavelson’s question.  Mr. Shavelson said it does, but he wanted to know if City Planner McKibben could answer with the objection being given.  Mr. Levesque said she could answer, if she knows.  Mr. Shavelson said he would go from that it is getting late. 

 

Mr. Butler said he had one question for the City.  He asked City Planner McKibben if it was her testimony from the evidence that she presented that none of the information that she received prior to the issuance of the permit based on the observation during the work that was approved under the plan and that the use of the building that has been built, that there has been any other issues that would indicate there has been any failure to comply with the terms of the permit, if that was her testimony tonight.  Ms. McKibben said yes. 

 

Mr. Tans asked to clarify that they are finished presenting evidence and ready to move to the next step.

 

Mr. Levesque said that the next step is set up to be a summary where parties can make an argument or present rebuttal evidence, although it seems that this procedure has been a lot more about argument than testimony. 

 

Mr. Butler said he had some additional information to address some of the questions Commission members had previously.  Mr. Tans said he would like to hear that information now if they could.

 

Mr. Butler said that with regard to Commissioner Hess’s question pertaining to the Vann’s communication with the City prior to them beginning work on their site,  the time frame was about January, the context of the communication involved the Vann’s originally applying  for, and receiving a sewer permit for their property about 2 years ago and they began to conceptualize how they were going to do their project.  It was about January when they talked to Mr. Gardner at Public Works and discussed the project and Mr. Gardner’s comment was I don’t think you need a permit for the type of work you are talking about, you already have the sewer permit it seems like you are ready to go, subsequent to that is when the ordinance was adopted and that is where some of the confusion arose.  Commissioner Hess asked if at that time there was a structure planned Mr. Butler said there was discussion of the wall that was planned, that had originally been discussed with the Corp of Engineers in 2000.  Commissioner Hess asked again if the discussions with Mr. Gardner at public works included the cottage.  Mr. Vann said he would answer the question.  Chair Chesley swore in Mr. Vann.  Mr. Vann said the structure wasn’t discussed until it was determined that they needed a DAP permit.  Mr. Vann said he was originally planning on doing the project incrementally but since a permit was needed, they would do it all at one time.  He said he started the project before a permit was needed, started purchasing materials, had received a sewer permit, as required by the City, and at that time he gave Public Works all the permits they had received from the Federal Governments.  Mr. Vann said he went on to acquire materials needed for the job, he has been buying materials and putting this project together for several years.  Commissioner Hess said he went to Public Works, not the Planning Department.  Mr. Vann said he didn’t have a reason to go to Planning, nor was he advised to. 

 

Mr. Butler responded to the question about the culvert, stating that the culvert was ending at a place that was eroding the portion of the property that the Vann’s own.  They asked the City if they would do the work, the City said no the Vann’s could handle it so Mr. Vann fixed the culvert.  Mr. Butler responded to the tire in the picture previously mentioned, Mr. Butler said there was a tire, an old engine block and an old car frame on the property when they began their work and they were in the process of collecting things to haul off and dispose of properly, it was not debris that was brought in with the fill for the site. 

 

E.  Summary and/or Rebuttal Evidence by Appellant

 

Mr. Shavelson thanked the Commission, he knows that sometimes it is thankless work and he appreciates them coming out to do this.  He also said he appreciates the difficult work that the Planning Department has to go through.  He said that he regrets that this has to be the opportunity to meet the Vann’s because this is nothing personal, but it is an issue.  He said they felt there was an error committed here and felt the need to pursue that.  As a basis for that they feel the City has an obligation to find meaning within the Zoning Code and enforce that Zoning Code.  He said Mr. Tans noted that the owness is on the property owner to show they will not harm other properties but there remains a duty to the Planning Department and the City of Homer to ensure the statements of developer are realistic.  Mr. Shavelson said the narrative on page 7 of the appeal and this document parallels the requirements in the Zoning Code, which says development shall not adversely affect other properties for a variety of reasons.  That is addressed with the statement that all work shall be performed on private property above the mean high tide line as determined by AFG interpretations.  Mr. Shavelson stated that alone is a deficiency and that is an error, misstatement or misrepresentation and that is cause for revocation of the permit under HCC 21.42.080.  If that is the basis for the issuance of the permit, he feels the City erred in satisfying the ordinance in that respect.  He made one last note to the Public Trust Doctrine because he said he believes that the City as the owner of the tidelands in the Bishops Beach area has a responsibility not only to this generation but also to future generations and if we make the piece meal decisions now without having the broader scope then he is afraid we will look like the South Jersey shore soon. 

 

F.  Summary and/or Rebuttal Evidence by the Permit Applicant

 

Mr. Butler said he would like to echo Mr. Shavelson’s thanks for the effort of the Commission, having sat on several different boards, sometimes you get more than you bargained for.  He said this is a very important example of how responsibly everyone in this community is trying to understand development and the use of private property.  The Vann’s came along at a time where the new ordinance had not been applied and from what he understood from the testimony, the City exercised its professional competence, its due diligence and its experience to make sure that the terms of the ordinance are followed.  Mr. Butler said he heard a few things in the testimony of the City that it is important to keep in mind as we try to assess the effort that went into a project that is somewhat new.  Outstanding effort was the one that stuck with him.  The Vann’s had the opportunity to do the project a few years ago but didn’t, when they found out there was a problem, they went to the City and worked with the City.  There was testimony that it is common to bring the developer in to work with the property owner, not to bar development, but meet the mutual interest of the community and the property owner.  Mr. Vann has over 20 years experience building commercial and residential properties including rock walls in excess of 30 feet.  Mr. Butler said what he keeps coming back to is that there was a good faith effort made by the property owner, there was a contentious and professional effort made on behalf of the City, there was compliance during the course of the project to enhance a private property and consider the potential impacts from neighboring property, there has been no testimony that meets the terms of revocation of the permit, the Vann’s are hoping they can use and enjoy the property for a period to come.  He would also like to say that they are very aware that this is a property that will be watched for a period of time and they are very aware that the design they put in and effort they have undertaken was attempted to be done in a way to mitigate any collateral of impact, which is why the wings of the project are remaining on their property.  If there are issues, they will hear about it but would like to think that the standard for issuing the permit is not to try to address all the what if’s, but to look at it in a pragmatic, objective review based on expertise and experience, and that is what was done in this case.  Mr. Butler said he appreciates the opportunity to work with everyone through this process and he appreciates the efforts everyone has made.

 

G.  Summary and/or Rebuttal Evidence by Appellees

 

City Attorney Tans said when you get your general aviation pilots license and first your Cessna 206 it comes with an operator’s manual, you have a fairly complicated thing to fly.  You could probably fly a number of general aviation planes with out a lot more training and do a pretty good job of it, but if that pilot were want to fly a Gulf Stream, that would be a very different kind of machine.  It is very complicated, it costs a lot more money to fly one because it is so complicated and moves so fast, it is a more advanced kind of machine.  The Homer Zoning Code is a complicated thing, it is difficult to fly and takes some special training to make it work, but it is not the kind of manual you would use to regulate development in the ocean plane, because regulating development and protecting private property from the effects of a wild ocean is a much different and much more complicated thing than Zoning, so bear that in mind.  We are applying a Zoning Code here, not a beach protection, not an ocean protection kind of code.  Mr. Tans said those are good things, but not what the Homer Zoning Code is aimed at.  It is aimed at protecting general property rights, making sure offensive things do not occur, making sure that there is sufficient air, light and space, and yes it does address erosion and siltation but it is really not aimed at the ocean frontage and the whole community and if it has to be applied to the complex forces that go on at the ocean shore, a lot more work needs to be done to the Code to make it work.  It needs to be made clear what those rules are and who is going to pay for it, is the City pay to make sure these things are done, as Mr. Shavelson says should have been done, or is the property owner going to have to pay for the engineering or the expertise that is reflected by the professors who have written the emails he has, who is going to pay for those professors to come in and look at a project and tell the owner and the City if this is proper, and what is proper.  He said City Planner McKibben looked at the Code, her operators manual, and looked at the facts she had and determined in her judgment that the application reasonably met the standards, it appropriately addressed the issues they had, the DAP addressed what it was designed to address, which by the way is not ocean erosion or beach erosion, and issued the permit.  If a greater degree of review is required than that and if more evidence is required than that then the solution is not to revoke the permit, but the solution is to change the Code if that is necessary to make it a conditional use permit if necessary to set for the standard to explicitly regulate beach construction if that is the issue.  Those are things that could be done if this is a concern, but revocation of the permit is required.  Mr. Tans thanked the Commission.

 

Mr. Shavelson said again that the owness should be on the property owner and that may incur cost to the property owner but that is the nature of purchasing property in a dynamic coastal environment, but again the obligation is on the City to ensure there in not going to be intended harms to other properties as a result of a zoning decision here.  He can’t see it any other way.  The ordinance is written with such plain language and maybe the ordinance isn’t perfect in envisioning every development scenario in every location but there is a definition of requirement of no harm that is flexible to accommodate a variety of circumstances.  He would encourage the Commission to look at the plain language and think sensibly about this type of development and what type of precedent this can send.  If you read the expert testimony you will see there is likelihood that there will be down drift harms to the Bishops Beach and other areas for the foreseeable future.

 

H.  Questions from the Commission

 

Commissioner Hess asked how to address concerns that have not been answered tonight, with regard to Public Works.  There are some questions he feels need to be address to Mr. Gardner and Mr. Meyer that effect the decision here.  He absolutely feels the need for more testimony.  Mr. Levesque if that is the case then the hearing needs to be continued.  Mr. Levesque said there has never been a hearing where all of the questions are answered, you have to take all the information you have, determine what the facts are and make a decision.  Chair Chesley conferred with the other board members all the other members said they did not feel the need for more testimony with the exception of Commissioner Lehner who said she wasn’t sure.  Commissioner Hess said he is under the opinion that Mr. Gardner may have erred with his advise to the party, he is under the impression that a permit was required.  He asked City Planner McKibben what the old code used to require.  She said she believed the standard practice was that zoning permits were required when buildings were constructed, so what she understands is that the Vann’s weren’t planning on building the building immediately, so were told they didn’t need to get a permit.  She said there was no permit required to build a wall, a person can install their driveway or water or sewer with out a zoning permit, and that is the way it had been handled.  Chair Chesley told Ms. McKibben that Commissioner Hess had asked for her interpretation of what the Code was regarding HCC 21.42.010.  City Planner McKibben read into the record HCC 21.42.010 a. & b. and said that a person can improve their lot with no plans for construction of a building and not require permit.  City Attorney Tans asked to comment, Chair Chesley agreed.  Mr. Tans said subpart a. tells you in what circumstances a permit is required, subpart b. only tells you when you have to get that permit, if it is required by a.  Mr. Levesque agreed that that was the way he read it also.  Commissioner Hess asked what is considered a structure.  Planning Director McKibben read HCC 21.32.505, which defines structure.  Chair Chesley said that this is information to use in deliberation and what they are challenged to do here is to determine whether or not the staff did their job and he doesn’t think that Mr. Gardner needs to testify, City Planner McKibben has relayed information to the Commission, the Vann’s have given their conversations with Public Works.  Chair Chesley said he thought they were ready to close the public portion of the meeting.  Commissioner Hess said that Ms. McKibben hadn’t been here long and they really needed to hear what Mr. Gardner had to say about this to hear how they interpreted the Code and get a clearer picture of what happened.  Mr. Levesque told the Commission that they have completed probably the easiest part of the job, taking the evidence, and now they have to take tis evidence, give weight to it and determine what the facts are, and it is never black and white.  He said the Commissioners won’t agree on everything, but that is what the deliberation process is for and at some point they have to say, there is enough information to make a decision.  Chair Chesley asked the Commissioners if they wanted to continue this hearing and hear more testimony and possibly evidence.  Commissioner Connor said no, Commissioner Bartlett said no, Commissioner Bartlett asked Mr. Shavelson to restate what his ultimate goal is, after discussion, it was agreed he could restate it.  Mr. Shavelson said the relief they would desire is to have revocation of the permit, reversal of the Planning Departments decision and bringing the site back to its predevelopment state.  Commissioner Bartlett said yes he would like to hear more testimony.  Commissioner Foster said no, Commissioner Pfeil said no, Commissioner Hess said yes, Commissioner Lehner said no.  Chair Chesley said the vote was 4 no, 2 yes and he would vote no, so they would not continue the hearing.

 

Chair Chesley said that the pool of evidence is closed and will not be taking any more evidence except for the City Planner submitting the required affidavit of distribution for public notice to the parties and the public.  He said they will go into executive session to deliberate.  By Code they have as much as 60 days to reach a decision but hope to have it done sooner.  Chair Chesley also said that contrary to some statements in the press by some City Council candidates and other reports in the press, this Planning Commission is not anti-development, they are pro-development but like to see development with good planning and that is what the Planning Commission is about in this community.  He said everyone on the Commission is very thoughtful and very respectful in their place in the community and how they relate to each other in their other lives.  This is not an easy thing they are tasked to do, but rest assured that they will have everyones interest at heart when they go into closed session.

 

Chair Chesley adjourned the meeting.

 

 

ADJOURNMENT

 

There being no further business to come before the Commission the meeting adjourned at  12:40a.m.  The next regular meeting is scheduled for October 6, 2004 at 7:00 p.m. in the City Hall Council Chambers, with a Worksession to commence at 6:00 p.m.

 

                                                              

MELISSA JACOBSEN, DEPUTY CITY CLERK

 

Approved:­