MINUTES

PLANNING COMMISSION

CITY AND BOROUGH OF JUNEAU, ALASKA

REGULAR MEETING

January 25, 2000

Vice Chair Mike Bavard called the regular meeting of the City and Borough of Juneau Planning Commission to order at 7:06 p.m., in the Assembly Chambers of the Municipal Building.

I. ROLL CALL

Commissioners present: Mike Bavard, Dan Bruce, Marshal Kendziorek, Mark Pusich, Tracey Ricker, Merrill Sanford, Jody Vick

Commissioners absent: Johan Dybdahl, Ken Williamson

A quorum was present.

Staff Present: Cheryl Easterwood, Community Development Director; and CDD Planners Heather Marlow and Katharine Heumann

II. APPROVAL OF MINUTES

January 11, 2000 - Regular Meeting

MOTION - by Mr. Pusich to approve the minutes of the January 11, 2000 regular meeting as written.

There were no amendments or corrections. Without objection, the minutes were approved.

III. PUBLIC PARTICIPATION ON NON-AGENDA ITEMS - None

IV. RECONSIDERATION OF THE FOLLOWING ITEMS - None

V. CONSENT AGENDA

Mr. Bavard read the items on the Consent Agenda and inquired if there was any public comment. No one from the public wished to comment, and there were no questions from commissioners.

MOTION - by Ms. Ricker to approve the Consent Agenda that included USE1999-00075, USE2000-00002, USE2000-00001, VAR2000-00002, and VAR2000-00001 (as listed below). There being no objection, it was so ordered.

USE1999-00075

A CONDITIONAL USE PERMIT TO ALLOW A 594-SQUARE-FOOT ACCESSORY APARTMENT TO BE PLACED IN A NEW SINGLE FAMILY DWELLING.

Location: 9600 North Douglas Highway

Applicant: Darrel & Linda Love

Staff recommendation: That the Planning Commission adopt the director's analysis and findings and grant the requested conditional use permit.

USE2000-00002

AN ALLOWABLE USE PERMIT TO AMEND THE LOCATION OF A PREVIOUSLY APPROVED HEAVY EQUIPMENT MAINTENANCE/REPAIR SHOP AND ASSOCIATED STORAGE YARD. ADDITIONAL PROPOSED USES ON THE SITE INCLUDE OUTSIDE STORAGE OF SHIPPING CONTAINERS AND AN ASSOCIATED OFFICE.

Location: 1725 Anka Street

Applicant: Channel Construction

Staff recommendation: That the Planning Commission adopt the director's analysis and findings and grant the requested allowable use permit, subject to the following condition:

1. Drainage changes must be reviewed and approved by CBJ Engineering as per 49.15.320(f)(12) ALLOWABLE USE PERMIT Conditions of Approval.

USE2000-00001

AN ALLOWABLE USE PERMIT TO OPERATE A CHILDCARE CENTER FOR 40 CHILDREN DURING DAYTIME AND WEEKDAY HOURS.

Location: 9315 Glacier Highway

Applicant: Susan DeLoach

Staff recommendation: That the Planning Commission adopt the director's analysis and findings and grant the requested allowable use permit to operate a childcare center for 40 children from 7:00 a.m. to 6:00 p.m., Monday through Friday, subject to the following condition:

1. The applicant shall reconstruct the on-site driveway to a minimum 20-foot width, so as to accommodate two lanes of traffic and emergency access, in conjunction with the DOT Highway Project in 2001. The driveway construction plans are subject to the review and approval of the CBJ Fire, Engineering, and Community Development Departments. The applicant shall maintain an access easement from the Valley Paint Center site until the driveway reconstruction is complete.

VAR2000-00002

A VARIANCE TO ALLOW THE INSTALLATION OF TWO FREE-STANDING SIGNS 12 FEET FRMO THE ORDINARY HIGH WATER OF DUCK CREEK, WHERE THE CBJ LAND USE CODE REQUIRES A 50-FOOT STREAM-SIDE SETBACK.

Location: 9315 Glacier Highway

Applicant: Susan DeLoach

Staff recommendation: That the Board of Adjustment adopt the director's findings and staff analysis which concludes that criterion 1 through 6 of CBJ 49.20.250 have been met for the variance request to locate two signs 12 feet from the ordinary high water of Duck Creek, subject to the following conditions:

1. A siltation fence shall be installed prior to and shall remain throughout the sign installation process in order to prevent fill from entering the wetlands.

2. All construction equipment used for the sign installation shall avoid entering the wetlands to the extent practicable.

VAR2000-00001

A VARIANCE TO REDUCE THE SIDE YARD SETBACK FROM 5 FEET TO 0 FEET FOR CONSTRUCTION OF A CANOPY OVER A NEW AIR-HANDLING UNIT FOR THE AUGUSTUS BROWN POOL.

Location: 1619 Glacier Avenue

Applicant: City & Borough of Juneau - Engineering

Staff recommendation: That the Board of Adjustment adopt the director's findings and staff analysis which concludes that the grounds for variances, as identified in the staff report, are met and approve the variance as requested.

VI. CONSIDERATION OF ORDINANCES AND RESOLUTIONS - None

VII. UNFINISHED BUSINESS - None

VIII. REGULAR AGENDA

Mr. Bruce excused himself from participating in both the zone change request and the street vacation request because of a conflict of interest. He remained on the premise until 8:37 p.m., at which time he left the meeting.

Mr. Pusich disclosed that he had a conversation earlier in the day with the CBJ Attorney, John Corso, regarding whether he had a conflict of interest related to his employment at R&M Engineering. Mr. Madsen is a client of the firm, however, the firm has nothing to do

with this project. Although calling it a close call, Mr. Corso advised that the zone change and street vacation are legislative matters and not quasi-judicial matters in that the Planning Commission would be making a recommendation to the Assembly. Mr. Corso further advised him to seek feedback from fellow commissioners. Upon being polled, the commissioners had no objection to Mr. Pusich's participation on the following two items.

MAP1999-00002

A ZONE CHANGE FOR LOT 1 AND A FRACTION OF LOT 3, BLOCK A, AIRPORT ACRES SUBDIVISION, FROM D-5, SINGLE-FAMILY/DUPLEX RESIDENTIAL, TO LC, LIGHT COMMERCIAL.

Location: 2321 O'Day Drive

Applicant: D&M Rentals, L.L.C.

Staff report: CDD Planner Heather Marlow reviewed the staff report. The applicant is requesting a zone change from D-5, residential, to LC, light commercial, for a parcel that is developed as a duplex. The subject site is bordered by light commercial zoning to the north, south and west, and is in common ownership with those parcels. The site is bordered by D-5, residential, to the east. The change would result in common zoning of all the property owned by the applicant in this area. The applicant has indicated that the subject property will become part of, or accessory to, the hotel operation that it bounds, and also may be used for commercial storage or parking. When the Frontier Suites hotel applied for a conditional use permit, a condition was attached to the permit to address traffic. Traffic has been a concern with the zone change request, as well. To mitigate those concerns, the applicant has proposed a street vacation for a portion of O'Day Drive so there would be internal access, through commonly owned commercial sites, to the subject site, and to ensure that there would be no access from Lee Smith or O'Day Drive.

Ms. Marlow stated that, according to the CBJ Land Use Code, the zone change request conforms to the following restrictions: (1) it constitutes an expansion of an existing zone; (2) no similar request has been made in the past year; and (3) the requested change from D-5 to LC light commercial zoning generally falls under the general commercial designation in the Comprehensive Plan. The designation for this particular site is Urban Low Density Residential. Because these designations border each other, and Comp Plan maps are considered to be guiding rather than binding, as are zoning maps, staff thought the zoning request was appropriate to consider in this case.

Ms. Marlow said that the overall impact of the proposed zone change could be significant to adjacent residential property owners, particularly the two property owners above Smith Court on Lot 2 and a fraction of Lot 3. The existing duplex on Lot 1 serves as a residential/commercial transition, both visually and functionally, between the D-5 residential area and the light commercial area. The interior and exterior views from Lot 2 and Lot 3 are unobstructed toward Lot 1 and a fraction of Lot 3 (the subject area). Several large spruce trees provide minimal street-level screening between the residences and the light commercial area. CDD has previously received complaints from the

residential properties regarding the subject property -- focused on the amount of on-site vehicular and pedestrian traffic generated, views of stored commercial equipment, noise, and general non-compatibility. These concerns indicate that allowing such activities, and providing the opportunity for increasing the activities, is likely to increase the potential for conflict.

Ms. Marlow stated that Mr. Madsen has indicated to CDD staff that he plans to maintain the current duplex on the site, and he notes that the proposed uses are of low intensity. Mr. Madsen offered to increase the buffering between the zones by planting a row of trees in the buffer area (the common property line between the fraction of Lot 3 and between Lot 1 and Lee Court).

Staff considered whether the likely impacts of light commercial zoning could be mitigated. Due to the proximity of development and the views of the residences on Smith Court, the impacts of commercial traffic, parking, storage and delivery will be immediate and evident. In particular, the conflicts are incompatible noise and activity. Granting the zone change request will likely increase the intensity of use on the site and the associated impacts. Conditions on zone changes can mitigate or buffer some impacts. Staff concluded that the conditions would have to be very specific and would be difficult to document and enforce over time. Further, when a number of conditions are required in order to approve a zone change, it is a good indication that the zone change is not appropriate.

Ms. Marlow stated that the subject lot is accessible from O'Day Drive and Smith Court, and to the rear, from Frontier Suites, the Annex, and the Airport Suites Hotel. The front parking and garage/storage areas of the subject lot, which are accessed from O'Day Drive, have been a concern because of the vehicle and pedestrian traffic generated. There has been commercial storage at both the front and rear of the duplex lot.

The Comprehensive Plan offers guidance in the residential land use conflict section. The concerns that generated this policy are similar to the concerns associated with the proposed zoning. This neighborhood has previously experienced commercial encroachment with professional offices on Lee Smith Drive. Because of the conflicts, the zoning ordinance was changed to prohibit similar intrusion and provide for more predictability and compatibility in single-family/duplex residential areas.

Ms. Marlow reviewed the findings (contained in the staff report). She also pointed out that there were four letters to the Commission, some of which were received before the street vacation request, that addressed traffic concerns.

Staff recommendation: That the Planning Commission adopt the director's analysis and findings and deny the request to change the zoning of the subject lot from D-5 residential to LC light commercial. If the Planning Commission decided to forward the request to the Assembly with a positive recommendation, staff proposed that it be subject to five conditions:

1. The applicant shall obtain approval for SUB1999-00049, a street vacation for a portion of O'Day Drive. The applicant shall ensure that no access for commercial vehicles of any type is provided to the site from through routes on O'Day or Lee Smith Drives.

2. There shall be maintained a 20-foot natural or landscaped buffer on the property rezoned on its common boundary with residential property to the east, Fraction of Lot 3, Block A, Airport Acres. There shall be maintained a 10-foot natural or landscaped buffer on the property rezoned on its common boundary with the Smith Court right-of-way to the east. The buffer boundary shall be permanently delineated on the property by substantial rockery or similar, approved as to form, design and finished appearance by the director. No use may be made of the property within the buffer.

3. A sight-obscuring fence, approved as to form, design and finished appearance by the director, shall be constructed and permanently maintained along the boundary of the property where it abuts the residential property to the east, as named in Condition 2, and along Smith Court. Access shall not be provided for on Smith Court.

4. Trees and other vegetation within the buffer may not be removed except upon approval of the director.

5. The zone change shall become effective when compliance with Conditions 1-3 is certified in writing by the director.

Mr. Kendziorek asked if there was recent public notice about the rezone request, which had been postponed several times. Ms. Easterwood stated that property owner notices were sent out a second time. Ms. Marlow added that she contacted three property owners whom staff has heard from the most. Mr. Kendziorek inquired about the status of the enforcement action related to commercial use of the duplex lot. Ms. Easterwood said the CBJ issued a compliance order, and Mr. Madsen came into compliance with the requirements at that time and also asked to appeal the compliance order. The appeal has been put on hold pending the outcome of the zone change request. Mr. Kendziorek asked staff to describe what kind of commercial storage the subject lot could be used for if a zone change was approved. Ms. Marlow clarified that staff did not have a proposal from the applicant regarding what they want to store, however, she would anticipate the same sort of things that have been stored in the past -- lot sweeper, commercial storage vans, bobcats, etc. Mr. Kendziorek said he assumed that the applicant's statement that they would not be doing any major development on the subject lot is not binding to either them or any future owners. Ms. Marlow agreed. Ms. Easterwood added that, if rezoned, the lot could be used for a more intense purpose than is presently indicated. The applicant had stated to staff that he had just built the duplex recently and did not intend to tear it down or remodel it significantly.

Mr. Pusich asked where a sight-obscuring fence would be located (if the rezone request were approved). Using a map drawn on the display board, Ms. Marlow demonstrated the fence's location along the boundary with Lee Court and between the two zoning districts. Mr. Pusich observed that there was no mention of how high the fence would be.

Mr. Bavard questioned the historical zoning of the subject property. Ms. Marlow stated that there was a major rezone in the Mendenhall Valley in 1987, but the previous residential designation was very comparable to a D-5 designation. Referring to condition #3 above, Mr. Bavard asked if the applicant could still use the driveway. Ms. Marlow said no, that the intention of the condition is to put a fence along the entire length of the property and to not allow for access off of Smith Court. The point is to try and capture all the traffic generated by Mr. Madsen's properties and circulate it through his properties, rather than through the neighborhood.

Ms. Ricker wondered if the vacation of O'Day Drive would block the side access to the property. Ms. Marlow explained that if the zone change were approved with the conditions as stated, then access is blocked from Smith Court. If the zone change were denied and the street vacation were approved, there would be access to the subject property off of Smith Court. She confirmed for Ms. Ricker that if both requests were approved, there would be no access onto Lot 1 from O'Day Drive.

Mr. Sanford asked if there is access to the fraction of Lot 3 from Frontier Suites Annex One and the Airport Suites property which has been permitted for development. Ms. Marlow said yes. Mr. Sanford asked if the Airport Suites lot was being used for storage. Ms. Marlow said she hadn't inspected the property recently and didn't know.

Noting that fence height will be an issue, Mr. Bavard asked if staff envisioned slats in a chain link fence to block the view. Ms. Marlow stated that the single-family residence on a fraction of Lot 3 is a two-story building with the primary living area on the second floor, so it will be difficult to screen headlights and traffic views from there.

Public Testimony:

Fred Baxter appeared on behalf of the applicant and distributed photographs of the subject site and surrounding area (on file at CDD). He said the zone change application is in conformance with the Code requirements and with Comp Plan policy 5.3. The conflicts mentioned in staff's report are in many cases non-substantiated and are the conflicts of staff. If there are existing conflicts, this proposal anticipates the removal of those conflicts. He addressed each of the conflicts, as follows:

Incompatible vehicle activity - The zone change proposal and street vacation proposal together eliminate the conflict of vehicle activity and will be a win-win situation for everybody. Letters to the Commission talked about vehicle concerns, and Mr. Madsen and D&M Rentals have the same concern because the vehicular traffic from the neighborhood has been traveling through his property. Such traffic will be exacerbated when the Glacier Highway reconstruction project, which includes blocking Hurlock Avenue from left-hand turn movements, potentially will funnel a lot of traffic through the Airport Acres Subdivision.

Pedestrian activity - Staff did not cite any specific concerns, however, the applicant does not see any increased activity. Blocking O'Day Drive and installing a gate will deter a lot

of people in the neighborhood from walking to and from Glacier Highway. The proposed rezone moves the focal point to Glacier Highway for accessing the property.

Between neighborhoods - The subject property has access from O'Day Drive and Smith Court. The access to Lot 3 is through an unrecorded easement across Lot 2. The rezone would create a logical buffer between the residences and the commercial property. The duplex is residential and a logical transition. Staff's proposed conditions call for 10- and 20-foot buffers which don't exist right now, but they will create a better barrier between the residential and the light commercial.

Viewplane - As shown in the photos, the current viewplane from Lot 2 to Lot 1 is obstructed by trees. Additionally, there is already substantial timber on Lot 3. A sight-obscuring fence and planting more trees will help establish a barrier. The applicant sees some benefit in planting trees because they will benefit the commercial businesses, as well.

Noise - There are in excess of 100 hotel rooms in operation on the commercial property, and it is to the owners' benefit to keep noise down. The noise impact will be eliminated by buffers and relocating the vehicular traffic.

Parking commercial equipment - The applicant has parked a bobcat on Lot 1 because it was used for winter snow removal, and the street-sweeper was used to keep the complex clean.

Mr. Baxter said the subject parcels are approximately one-third acre in size and are in the same ownership as the adjoining 5.25 acres of commercial property. It would be logical to bring all the property together for common use. The duplex is newly constructed and will be there for a substantial period of time. It is not anticipated that there will be an intensity of use, and the duplex clearly allows for a transition between the two zones.

Mr. Baxter stated that the applicant requested that the Planning Commission recommend to the Assembly the proposed zone change with the conditions set forth in the staff report. The applicant has reviewed the conditions and discussed them with staff, and they conform with how the property owners view the property and their goals. Mr. Baxter said the policy criteria of 5.3 are achieved by approving the zone change with conditions.

Mr. Kendziorek asked why the applicant wishes to rezone the property, if the duplex is to remain residential in nature. Mr. Baxter replied because the property is owned by the same owner, and the rezone would bring all the use together while still providing the protection the residential neighborhood needs. Further, rezoning the fraction of Lot 3 makes it compatible with the annexes being constructed. Mr. Kendziorek inquired about plans for the vacated portion of O'Day Drive. Mr. Baxter said by gating the end of the street, the applicant could have controlled access to the duplex lot.

Mr. Bavard said he understood there would be no access from Smith Court to the fraction of Lot 3, if the rezoning takes place. Mr. Baxter confirmed that.

Ben Woods, owner and resident of the second lot on Smith Court (purchased Sept. 1998) directly adjacent to the duplex, spoke in opposition to the requested zone change for the duplex lot. He agreed with Mr. Baxter that the duplex is a buffer to the commercial properties on Glacier Highway, but it should continue to be a buffer by remaining residentially zoned. Nevertheless, it is currently a poor buffer. There is a fairly constant parade of vehicles through the duplex property, and there would continue to be, even with the street vacation. His house is about 60 feet from the edge of the duplex, and trees and a fence will not effectively block noise. The noise is not necessarily from the traffic from the street going into and out of the duplex property; it's from the traffic directly around the duplex and within the commercial property itself. If the duplex property were rezoned, the Planning Commission would not be able to stop any use allowable in a light commercial zone - it could be a mechanic's shop or a nightclub. Then the nearby residents would be left to deal with the impacts of a City decision that benefits only one person. Mr. Madsen knew the zoning restrictions when he built the duplex and should have requested the zone change then, if he wanted to use the property for light commercial activities. After building the duplex, and contrary to the current Code, Mr. Madsen used the building as commercial storage for a year. During the summer months, there was lots of activity going on until midnight, including large loaders with back-up alarms, which made it difficult to get to sleep. It is unfair to ask nearby residents to continue to live with more and greater impacts from one landowner. When it comes to requiring fences, Mr. Madsen installed a purple plywood fence (to block the view of construction) that created a stir, but he made his point. In closing, Mr. Woods said he was concerned about being able to sell his house in the future if the adjoining property becomes zoned light commercial.

Richard Young, 2327 O'Day Drive, stated that container vehicles currently access the storage area through O'Day Drive. If a portion of O'Day Drive is vacated, container vehicles will no longer be able to access through the apartment area but will have to travel between Frontier Suites and Frontier Suites Two. In order to do that and effectively access the storage areas, the owners will have to raise the grade in that fraction of Lot 3 and around the duplex so that the container vehicles will not tip their load. That, in turn, will cause a drainage problem onto Lee Smith Court and into his and his neighbor's yards. The only mitigation would be to remove the one big spruce tree and create a large swale (the original idea before the duplex was built). If the street vacation is granted for a portion of O'Day Drive, he doubted that deliveries would cease along the back area paralleling Lee Smith Court. Deliveries cannot be made through an apartment complex without creating a safety hazard. So the only logical access for delivery vehicles is between the hotels. Past violations on the duplex lot consisted of operating a full-fledged warehouse with four large freight-receiving doors; the compliance order required that Mr. Madsen empty the garage/warehouse. Mr. Madsen is still running maintenance operations out of the duplex, and the City is still getting calls about it. He said he had been led to believe that the buffer zone would be 30 feet wide, similar to the buffer between the fraction of Lot 3 and the Grandma's Featherbed property. He wondered why staff's recommendation was for a 20-foot buffer zone for the fraction of Lot 3, because this would create jogs in the buffer zone boundary. A narrower buffer zone would allow for the flow of commercial traffic through that fraction so that the owners can add fill and get

around that duplex. He gets to look at Mr. Madsen's purple multi-color fence, which he characterized as a "spite" fence.

Mr. Kendziorek asked if Mr. Young had had substantiated conflicts with the commercial activity over time. Mr. Young indicated yes, that the CBJ zoning inspector had documentation.

Mr. Sanford asked if Mr. Young had any flooding problems since the fill was placed for construction of the new Airport Suites. Mr. Young said he had not checked it out, however, he did not have any flooding problems when the snow was stored on the property. He added that things could change, depending on what they do around the new hotel.

Mr. Pusich asked how long Mr. Young had lived at his present address. Mr. Young said five years.

Henry Tiffany, testifying on behalf of the applicant, first made a few corrections to the map drawn on the display board. He conceded that Mr. Woods was correct in almost everything he said and that the noise and traffic were not good for the hotel business either. He added that Mr. Young was probably right about the traffic and the noise. Currently, vehicles are traveling from the residential neighborhood through O'Day Drive, past the apartment complex, and out to Glacier Highway. When Glacier Highway is reconstructed, it is anticipated that the traffic through the complex would increase. Vacating a portion of O'Day Drive and closing it off to traffic would take care of that problem. He agreed with the construction problems described in letters to the Planning Commission, but the impacts are not long-term and will cease when the buildings are completed. Construction on Frontier Suites began June 1998, so Mr. Woods purchased his house with some of the construction activity underway nearby. He was distressed by what appeared to be a staff bias when they said that any zone change recommendation that requires numerous conditions should not be allowed to happen. He thought virtually everything the Planning Commission approved had a list of conditions attached. This zone change request is appropriate, and it is the governmental function to bring to bear thinking that is broader than just one of the participants. Messrs. Woods and Young had expressed concern about the action of one property owner affecting several residences; he contended that a lot of property owners would be affected by closing part of O'Day Drive to through traffic. He agreed with Mr. Baxter and disagreed with staff regarding the policy 5.3 issue, saying the conflicts are addressed by turning the traffic focus totally away from the residential area and toward Glacier Highway. He was at a loss about whether pedestrian traffic would be more or less with a zone change, but he thought any use of the walkway would be quiet. Regarding drainage issues raised by Mr. Young, the CBJ must approve an engineering plan for the new Airport Suites site that would deal with any impact on surrounding properties or buildings.

Mr. Kendziorek asked why the applicant put up such a clearly provocative fence that was not designed to make good neighbors. Mr. Tiffany explained that Mr. Madsen had only a few days to erect and paint the fence per direction from the CBJ, and he regarded it as a

temporary construction fence where the paint job didn't matter. If there was spite involved, it will go away when the fence is replaced.

Mr. Pusich asked how the service vehicles would access the site, if the street vacation is granted. Mr. Tiffany indicated that that has not been fully decided; perhaps access would be through the apartment complex parking lot and the vacated portion of O'Day Drive. He added that most food deliveries are made through the front of the Frontier Suites.

Mr. Vick questioned whether there would be commercial vehicles on the property unless they were making deliveries to the hotel. Mr. Tiffany said that snow removal equipment, the street sweeper, one dump truck, and several contractor-type vehicles would be stored on the property at various times. The shipping containers have been there because they contain construction materials, but that activity will wind down by this summer.

Mr. Kendziorek inquired about what type of commercial uses would take place on Lot 1 (duplex lot). Mr. Tiffany explained that when Mr. Madsen built the duplex he thought he could use the garage for storage. Mr. Tiffany said he thought that if the rezone were approved, it seemed logical that the duplex garage space would be used to store equipment and for other commercial uses.

There was no one else to testify, and public testimony was closed. The chair called a brief recess from 8:37 to 8:44 p.m.

Mr. Pusich asked staff to explain their recommendation for buffer widths. Ms. Easterwood stated that when the area was rezoned years ago, one condition was that there be a 30-foot buffer established. At this time, the Land Use Code provides that when two zoning districts abut one another, the greater of the two zoning setback requirements applies to both properties. It took an in-depth analysis by staff to determine what setbacks apply to the subject property, since it does not front on a street in the normal sense. Staff chose to take the more conservative approach for a 20-foot setback and to also establish it as a buffer, as opposed to simply a setback area.

Mr. Bavard questioned how Lot 3 could be developed if the zone change were approved, because a condition of approval is that there would be no access provided through Smith Court. Ms. Marlow stated that each lot of record has an inherent right to be developed; it does not need to front on a right-of-way. Because the properties are in common ownership, the owner can cross adjacent properties to get to that fraction of Lot 3. If it were sold, then the owner would have to dedicate some sort of easement to give legal access.

Mr. Kendziorek asked about ownership of the O'Day Drive right-of-way. Ms. Marlow explained that when the residential subdivision was platted, O'Day Drive was constructed to Glacier Highway and dedicated to the City. The City (in 1971) agreed to vacate a portion of O'Day Drive and transferred ownership to Mr. Madsen. Because the City does not have to pay for streets that are given to it through subdivision construction, no compensation is required for handing it over in a street vacation.

Mr. Bavard asked if the buffer zone along the vacant lot, which staff indicated would be a no-build area, also meant there could be no traffic on that portion as well. Ms. Easterwood said that was correct. Ms. Marlow added that condition #2 means that the applicant must place some sort of landscape buffer or substantial rockery at the border of the 10-foot buffer parallel to Smith Court so that no use is made of that space, including driving through the buffer area.

Ms. Ricker asked if the applicant intended to proceed with the street vacation request if the rezone request were denied. Ms. Marlow said yes, that the street vacation request would address the traffic that goes through their complex from the adjacent residential subdivision and the possibility that the traffic would increase once the Glacier Highway is reconstructed and Hurlock Avenue is blocked for left-hand turn movements.

Mr. Bavard asked staff to explain the process following the Planning Commission's action. Ms. Easterwood stated that the Code only addresses the Commission recommending approval to the Assembly but does not address a Commission decision for denial. There are differing points of view on what the next steps would be if the Commission were to deny this zone change request. In the memory of Community Development Department staff, no one could recall a denied zone change request being presented to the Assembly (presumably, the applicant lost interest after a denial). If the Commission recommends approval, the zone change request will go forward to the Assembly; if the Commission recommends denial, staff will have to check with the CBJ Attorney's Office regarding the next step.

Commission Action:

MOTION - by Mr. Kendziorek that the Planning Commission adopt the staff's analysis, findings and recommendation and recommend to the Assembly that MAP1999-00002, the zone change for Lot 1 and a fraction of Lot 3, Airport Acres Subdivision, be denied.

Ms. Easterwood advised that the motion be made in the affirmative. Mr. Kendziorek withdrew his motion and put forward a reworded motion.

REVISED MOTION - by Mr. Kendziorek that the Planning Commission recommend to the Assembly that MAP1999-00002 be approved (a zone change for Lot 1 and a fraction of Lot 3, Airport Acres Subdivision, from D-5, Residential, to LC, Light Commercial), and ask for a "no" vote based on the reasons outlined in the staff report.

Mr. Kendziorek stated that staff's analysis was on point, and Mr. Woods was eloquent in his statements that the applicant would be permitted to do quite a range of activities on Lot 1 if it were rezoned light commercial. He noted that Mr. Baxter indicated in his testimony that the duplex would remain residential in nature, while Mr. Tiffany clearly stated that it was only logical that if the property were zoned light commercial that they would begin using it as light commercial. Such use would further reduce the buffer between the residential area and the existing light commercial. While the light commercial use is appropriate for that area, it is important for the CBJ to do what it can to buffer the

residential area. At one time, the Land Use Code was changed to try and address some of the commercial impacts along the Glacier Highway strip on the residential area that is behind it, including some encroachment of businesses into the residential neighborhood. He said he was shocked to hear Mr. Baxter say that there were "non-substantiated conflicts;" the conflicts are well-known and well-substantiated, to the extent that they required a CBJ compliance order. Mr. Baxter had also referred to "conflicts of staff," however, Mr. Kendziorek said he found staff to be quite professional. If the subject area is rezoned to light commercial, it will be used as such, regardless of the applicant's assurances that the owners have no plans for that. Their assurances are not binding on them or any future owners. In closing, Mr. Kendziorek asked that commissioners vote no on the zone change request.

Mr. Vick stated that he was in favor of the motion because the zone change would be good for all parties concerned. A lot of the problems have stemmed from the ongoing construction over the past few years along the Glacier Highway. With conditions attached to the zone change, commercial traffic flow in the residential area will disappear. He commented that he did not interpret the testimony to mean the duplex would be used as a commercial facility.

Mr. Kendziorek pointed out that staff was correct in stating that if a lot of conditions are required on a zone change then it is not necessarily a zone change anymore; it becomes a redefinition of what that zone is. Mr. Vick replied that the conditions insure that any development will follow certain guidelines. He added that the conditions are not favorable to the developer in that they will cost money and reduce the amount of property that can be developed, however, the applicant has agreed to them.

Mr. Bavard stated that the current zoning of the subject property, i.e., the duplex and a vacant lot, is somewhat compatible with the residential neighborhood. Staff's five recommended conditions, which are intended to mitigate impacts on the nearby residences, are very well done and would be a much-needed improvement when it comes to noise, traffic, etc. He could understand both sides of this issue and thought it was very appropriate for a property owner to explore a zone change for his adjoining property. However, his biggest fear was the uncertainty of what could happen on the two parcels in the future. Even though there is a new duplex on Lot 1, the value of the property for some commercial use could outweigh its current residential use, and light commercial activities could very well conflict with the existing residential neighborhood. He stated that with some difficulty he planned to vote against the motion.

Roll Call Vote

Ayes: Pusich, Vick

Nays: Kendziorek, Ricker, Sanford, Bavard

The motion failed, 2-4.

Findings:

MOTION - by Mr. Kendziorek that the Planning Commission adopt staff's findings for MAP1999-00002.

There being no objection, it was so ordered.

Chair Bavard noted that two commissioners were absent and asked if the Commission wanted to take further action.

MOTION - by Mr. Vick for reconsideration of MAP1999-00002 (and that it be heard as the first item on the agenda at the February 8, 2000 regular Planning Commission meeting).

There was a brief discussion about the process. Ms. Easterwood stated that if the Commission wished to accept additional testimony, it could do so with a vote of six members. Mr. Vick indicated that he was not asking for any more testimony, that further discussion on the motion would suffice.

SUB1999-00049

A STREET VACATION OF APPROXIMATELY 128 LINEAR FEET AT THE END OF O'DAY DRIVE.

Location: 2321 O'Day Drive

Applicant: D&M Rentals, L.L.C.

Staff report: CDD Planner Heather Marlow reviewed the staff report, noting that some of the discussion about vacating the O'Day Drive right-of-way occurred under the previous item, MAP1999-00002. In 1971, a street vacation was granted for the portion of O'Day Drive between Glacier Highway and the present terminus of O'Day Drive. The applicant has requested to vacate 128 linear feet of an abutting portion of the O'Day Drive right-of-way. The request was made, in part, to respond to traffic and circulation concerns associated with a zone change request on an abutting property (MAP1999-00002). The applicant is also concerned about unwanted traffic going through the commercial site, between the adjacent neighborhood and Glacier Highway. The applicant expects this traffic to increase when left-turn traffic movements are restricted at Hurlock Avenue. This concern can be addressed by fencing off the apartment complex driveway where it intersects O'Day Drive. The request was circulated to the appropriate CBJ departments and utility providers for comment, and several conditions were recommended.

Mr. Marlow said that the applicant has not stated a reason for requesting 128 linear feet as opposed to a lesser dimension. Staff attended a recent neighborhood meeting for a separate transportation/road project in the area where a number of residents expressed concern related to the bus stop and safety of school children. Staff recommends that a street vacation be granted for approximately 120 linear feet of O'Day Drive, thus providing 13 feet of right-of-way between the new terminus and the intersection where children

could wait for the bus without being in the street, and also to allow for right-of-way maintenance. The dimensions were arrived at by using a tape measure during a single site visit with one of Mr. Madsen's employees; a land surveyor will provide an accurate dimension if the street vacation request is granted.

Staff's revised recommendation: That the Planning Commission adopt the director's analysis and findings and grant the request, as revised by staff, to vacate the distance between the terminus of O'Day Drive and the far edge of the driveway to Lot 1, Block A, Airport Acres Subdivision, approximately 120 linear feet, subject to the following conditions:

1. The applicant shall install and permanently maintain a fence with a gate and lock at the new terminus of O'Day Drive. The fence, gate and lock shall be installed as recommended by the Fire, Police, and Community Development Departments. The fence shall prohibit vehicular access and provide for emergency response and pedestrian access from O'Day Drive to abutting commercial properties.

2. The applicant shall complete the replatting process to record the revised boundaries.

3. The plat shall provide for an access and maintenance easement for the water line, fire hydrant, and electrical facilities within the vacated right-of-way. The easement locations and dimensions shall be established as recommended by the CBJ Engineering and Public Works Departments and by AEL&P.

4. A fire lane shall be established and permanently maintained from the new terminus of O'Day Drive to the existing apartment complex driveway intersection. The location and dimension of the fire lane pavement striping and signs will be established as recommended by the CBJ Public Works and Fire Departments.

5. The applicant shall install a fire hydrant in the right-of-way at the intersection of O'Day Drive and Lee Smith Drive. The location shall be established as recommended by the CBJ Engineering, Public Works, and Fire Departments.

6. The applicant shall prepare an Order of Street Vacation in accordance with CBJ 49.15.450(E).

Mr. Pusich asked if there would be a gate in the fence or just an opening in the fence to allow pedestrian access. Ms. Marlow said she had been thinking of an opening in the fence, rather than a gate which children might find hard to manipulate.

Mr. Kendziorek inquired if staff would still recommend granting the street vacation request if the Commission's action to deny the rezone still stands after reconsideration. Ms. Easterwood said yes, but the fence location might change. Mr. Kendziorek wondered about continuing action on SUB1999-00049 until the zone change matter has been fully resolved because the two items are inter-related. Ms. Easterwood noted that condition #1 of the zone change was that the applicant obtain the street vacation.

Ms. Ricker asked about the dimension of the fence. Ms. Marlow said staff was recommending that the fence be located 120 feet from the existing terminus of O'Day

Drive; the fence materials and height would be established in deliberations with the Fire, Police, and CDD Departments.

Mr. Bavard wondered if the Public Works Department would have a say in how the fence was constructed. Ms. Marlow replied that in this area Public Works is primarily providing for the Fire Department (getting water access to the hydrant). Ms. Easterwood pointed out that condition #3 addresses the concerns of the Public Works Department, as developed in a meeting with all the appropriate departments and the applicant. She added that the Streets Department indicated they had no particular need for that area for snow storage.

Mr. Sanford asked who would keep the fire lane open. Ms. Marlow said it would be the owners' responsibility. She said she understood that the Fire Department would be requiring the placement of raised bollards and a painted fire lane to discourage people from parking in that area; in essence it would maintain itself. Mr. Sanford observed that in the winter someone would have to remove snow. He also noted that if the applicant installs a fire hydrant at the intersection of O'Day Drive and Lee Smith Drive (per condition #5), the City should look at whether the old hydrant needs to be there, because hydrants are expensive to maintain.

Mr. Kendziorek asked why no compensation to the CBJ is required in a street vacation where land is given to the abutting landowners, but in the recent Greenwood Subdivision platting matter the CBJ would sell a sliver of City land to property owners. Ms. Easterwood indicated that was because the Greenwood Subdivision matter did not involve a right-of-way.

Public Testimony:

Richard Young, 2327 O'Day Drive, questioned whether the Police Department would support a locked gate at the new terminus of O'Day Drive because there are approximately 120 police calls per year to the Madsen Apartments. Police use the O'Day Drive right-of-way frequently in patrols and to respond to calls. He asked that staff check with the Police Department to see if they are okay with the locked gate. Regarding the fence, he commented that he is already looking at a purple/multi-colored plywood fence, and he surmised that neighbors would not want to look at an ugly chain-link compound. He suggested that substantial rockery with a portion as a slide gate would be more attractive and serve the purpose of blocking vehicle access. Currently, and since Mr. Madsen has come into compliance with the duplex, his Frontier Suites employees no longer park in the duplex parking lot. They park in the O'Day Drive right-of-way. If the right-of-way is blocked to traffic, where will the employees park? He does not receive mail several times a week because the employees that used to park in the duplex yard sometimes park on the street in front of his mailbox. He has spoken to CBJ road maintenance which is reluctant to place "No Parking" signs there, but if the street vacation is granted, he would like all of Smith Court established as no parking. He continues to have concerns about the flow of traffic to the commercial area going between Frontier Suites and Frontier Annex One.

Fred Baxter, representing the applicant, urged the Commission to adopt staff's recommendation for the street vacation. The property owner has been involved in the process and has agreed to work with staff in setting the conditions in terms of what the gate type will be. Also discussed was not blocking pedestrian access. He noted that the 120 linear feet is an approximate number, and the gate location will depend on the land survey.

Mr. Pusich asked if the fence would go outside of the right-of-way and connect to the building. Mr. Baxter replied that he understood the fence would not extend to the building. Mr. Pusich asked if there would be room for a vehicle to get around the fence. Mr. Baxter said he didn't think so, that the gate would be large enough to block vehicular traffic. For emergency situations, there would be a lockbox with a key.

Public testimony was closed.

Mr. Bavard inquired if the applicant would be allowed to build a structure on the vacated right-of-way. Ms. Marlow said the vacated right-of-way will have a number of utility and maintenance easements, as well as a fire lane, so there would be a minimal amount of land available for development.

Ms. Marlow explained that she wrote the staff reports for MAP1999-00002 and SUB1999-00049 some time ago so that the two requests were dependent upon one another. While she was out of town, the staff reports were modified so that the two requests were basically unhooked; it would be possible to get either the zone change or the street vacation independent of the other. However, the staff recommendation probably could use some fine tuning. As currently worded, if the Commission approves the vacation of 120 feet of O'Day Drive, including the fence at the new terminus of O'Day Drive, and then the Commission does not approve the zone change, that will require that the duplex and the vacant fraction of Lot 3 are accessed through Mr. Madsen's adjacent complex. So the Commission should be aware that the lots would be residentially zoned, but they would have to be accessed through commercial property.

Mr. Baxter requested an opportunity to rebut that, saying that he was not aware of the effects of that recommendation earlier.

Ms. Easterwood stated that if the rezone were not granted, the street vacation and blocking fence would leave the duplex, a residential use, without access onto O'Day Drive. There doesn't seem to be a benefit to asking Mr. Madsen to move the duplex driveway to accommodate the fence, so a shorter dimension street vacation might work.

Following a brief discussion, Chair Bavard called a short at-ease to allow staff time to amend their recommendation.

 

Amended staff recommendation: Ms. Marlow presented an amendment to staff's recommendation, as follows:

That the Planning Commission adopt the director's analysis and findings and grant a vacation of O'Day Drive. The dimensions shall be determined by the outcome of MAP1999-00002. If MAP1999-00002 is approved, the dimension shall be to the north edge of the existing driveway to Lot 1, Block A, or approximately 120 linear feet. If MAP1999-00002 is not approved, the dimension shall be to the south edge of the existing driveway of Lot 1, Block A, or approximately 105 linear feet. The six conditions remain unchanged, as outlined earlier.

Commission Action:

MOTION - by Mr. Vick that the Planning Commission grant SUB1999-00049, a street vacation of a portion of O'Day Drive, and adopt staff's analysis and findings and amended recommendation.

Ms. Easterwood suggested amending finding #3 (because it referenced the distance of 120 linear feet) to include the language in staff's amended recommendation. Mr. Bavard said that he believed Mr. Vick's motion encompassed amending staff's finding #3 as well. Mr. Vick confirmed that.

AMENDMENT - by Mr. Kendziorek to insert the language in staff's amended recommendation into staff's finding #3.

AMENDMENT - by Mr. Kendziorek that the last sentence in condition #1 be amended to read, "The fence shall prohibit vehicular access and provide for emergency response and unimpeded bicycle and pedestrian access from O'Day Drive to abutting commercial properties."

Mr. Vick did not accept the last amendment, saying there was no need to keep adding details.

Mr. Pusich said he liked the amendment because there is a difference between pedestrian and bicycle access.

Roll Call Vote (amendment)

Ayes: Pusich, Ricker, Sanford, Vick, Kendziorek, Bavard

Nays: None

The motion passed unanimously, 6-0.

Roll Call Vote (main motion with two amendments)

Ayes: Ricker, Sanford, Vick, Kendziorek, Pusich, Bavard

Nays: None

The motion passed unanimously, 6-0.

IX. BOARD OF ADJUSTMENT

There was no business.

X. OTHER BUSINESS - None.

XI. PLANNING DIRECTOR'S REPORT

Ms. Easterwood reported that discussions continue with the proponents of the Totem Creek Golf Course planned for the north end of Douglas Island, and several important issues have been resolved. The applicant is working on the Audubon Sanctuary part of it and has hired an attorney to be their spokesperson and to work with CDD staff. One of the most important things that has been resolved is that the golf course project may proceed without the housing element.

XII. REPORT OF REGULAR AND SPECIAL COMMITTEES

Wetlands Review Board: Mr. Pusich reported that the WRB met last Thursday and granted two wetlands permits that involved Class D wetlands above Horton's out at Auke Bay. The applicants will be coming to the Planning Commission for a conditional use permit.

XIII. PLANNING COMMISSION COMMENTS AND QUESTIONS

Mr. Bavard stated that he envisioned reconsideration of MAP1999-00002 as starting at the motion and hearing comments on the motion. He thought it would give the zone change request a fair shake, given that there would be input from the two commissioners who were absent tonight and that some commissioners might rethink their positions.

Mr. Pusich asked how the Commission would handle any new information from staff. Mr. Bavard said he thought an amendment could be made to the motion, if necessary.

XIV. ADJOURNMENT

MOTION - by Ms. Ricker to adjourn. There being no other business and no objection, the meeting adjourned at 10:10 p.m.