Minutes

PLANNING COMMISSION

CITY AND BOROUGH OF JUNEAU

REGULAR MEETING

September 26, 2000

 

Acting Chair Mike Bavard called the regular meeting of the City and Borough of Juneau Planning Commission to order at 7:03 p.m., in the Assembly Chambers of City Hall.

I. ROLL CALL

Commissioners present: Roger Allington, Mike Bavard, Dan Bruce, Maria Gladisziewski, Marshal Kendziorek Mark Pusich, Merrill Sanford

Commissioners absent: Johan Dybdahl, Jody Vick

A quorum was present.

Staff present: Cheryl Easterwood, Director of Community Development; Katharine Heumann, CDD Planner; Sylvia Kreel, CDD Planner; Teri Camery, CDD Planner; Greg Chaney, CDD Planner; Gary Gillette, CDD Planner; Terry Brenner, CBJ Land Surveyor, Engineering Dept.

II. APPROVAL OF MINUTES

September 12, 2000 - Regular Meeting

Motion by Mr. Kendziorek to approve the minutes, as corrected. Hearing no objection, it was so ordered.

Mr. Bavard noting that there was a full agenda announced that the Montana Creek Asphalt Plant USE2000-00060 would not be heard until at least 8:30 p.m.

III. PUBLIC PARTICIPATION ON NON-AGENDA ITEMS - None

IV. POSSIBLE RECONSIDERATION OF THE FOLLOWING ITEM - None

V. CONSENT AGENDA

Mr. Bavard announced that there were two items on the Consent Agenda USE2000-00059 and USE2000-00063. Noting that there were members of the public interested in testifying on both issues, Mr. Bavard removed from the Consent Agenda to the Regular Agenda. The items are:

USE2000-00059

A CONDITIONAL USE PERMIT FOR A ONE-TIME EXTRACTION OF 3,500 CUBIC YARDS.

Location: 2300 DOUGLAS HIGHWAY

Applicant: P & J INDUSTRIES

USE2000-00063

EXTENSION OF EXISTING LARGE MINE PERMIT FOR THE DEVELOPMENT AND OPERATION OF THE KENSINGTON GOLD MINE.

Location: KENSINGTON MINE

Applicant: COEUR ALASKA INC.

VI. CONSIDERATION OF ORDINANCES AND RESOLUTIONS - None

VII. UNFINISHED BUSINESS - None

VIII. REGULAR AGENDA

USE2000-00059

A CONDITIONAL USE PERMIT FOR A ONE-TIME EXTRACTION OF 3,500 CUBIC YARDS.

Location: 2300 DOUGLAS HIGHWAY

Applicant: P & J INDUSTRIES

Mr. Pusich disclosed that he had a conflict of interest on USE2000-00059 in that he was the project engineer on the project. He stepped down from review and consideration of this matter.

Staff report: CDD Planner Gary Gillette reviewed the staff report noting that this project is a one time extraction of material from a currently vacant site located at the corner of Douglas Highway and Old Lawson Creek Road. The project, which is expected to last approximately four to five weeks, weather permitting, and is for the purposes of site preparation for future development or sale. Currently, there is no specific project planned beyond site preparation. The project engineer estimated a total of 170 round trips made by dump trucks perhaps resulting in 42 round trips per day. Mr. Gillette consulted with Alaska Department of Transportation and Public Facilities, which concluded that due to the short duration of the project, there would not be significant impacts on traffic.

Comments received from neighbors focused on the physical impact of the project on Old Lawson Creek Road and future maintenance of that road if a project were developed there. The Old Lawson Creek Road is a unique situation within the CBJ as it is actually not a public road, but a series of easements located on private property. The roadway is maintained by the property owners themselves and not by the CBJ.

Mr. Gillette indicated that the there would be no development within 50 feet of the high water mark and therefore no Coastal Zone Management policies applicable to the project. Additionally, due to the project’s proximity to Lawson Creek, the applicant will be required to consult with the Alaska Department of Fish and Game to determine if there are state regulations or permits that apply to the project.

Mr. Gillette stated that a major removal of material from a site, which is not a part of a specific building project, is required to seek approval under the Sand and Gravel section of the CBJ Land Use Code. Section 49.65.235 of the Land Use Code sets mandatory conditions, some of which do not apply to the one time extraction over a short period of time. However, the Planning Commission must make a finding that they would serve no purpose.

Staff recommendation: That the Planning Commission approve the Director’s analysis and findings and grant the requested Conditional Use permit. The permit would allow the removal of approximately 3,225 cubic yards of material and grading of the site for future development.

Further, it is recommended that the Planning Commission waive the mandatory conditions in Section 49.65.235 of the Land Use Ordinance as this project is a one-time extraction for the purposes of site preparation and the conditions would serve no useful purpose.

The approval is subject to the following conditions:

  1. Prior to commencing work on the site, the applicant shall obtain a CBJ grading permit for the site grading and retaining wall construction.
  2. Prior to commencing work on the site, the applicant shall obtain approval from the CBJ Engineering Department for the design and location of erosion control devises.
  3. Prior to commencing work on the site, the applicant shall have in place all required erosion control devices.
  4. All stumps, vegetated overburden, and other removed material shall be disposed of or placed in an approved location for the type of material removed.
  5. The applicant shall be responsible for controlling dust caused by excavation, truck hauling and other aspects of the operation. The applicant shall control dust by dampening road surfaces and operation areas and shall take other measures as needed to control dust impacts of the site.
  6. The applicant shall be responsible for daily clean up of the public roadways caused by truck hauling or other activities associated with the construction of the project.
  7. The excavation activities shall be limited to the hours from 7:00 a.m. to 5:00 p.m., Monday through Saturday.
  8. All cut and fill slopes are to be protected from erosion as soon as the slopes are cut to grade. Hydro seeding will be acceptable if slopes are completed during the specified dates (April 15 through August 15 unless otherwise approved). Slope protection during other dates shall be done with appropriate matting until hydro seeding is approved.
  9. Prior to the issuance of a grading permit, a bond in the amount of $10,000 shall be posted to assure the erosion/sediment controls are kept in place and maintained.
  10. Prior to construction of the rockery retaining wall, the applicant shall relocate the existing six-inch water main along the southerly side of the site. The note on Sheet 2 of 4 of the plans submitted with the application indicates the water main to be relocated by the CBJ Water Department. It should be noted that to date the CBJ has not acknowledged responsibility for the relocation. The applicant is responsible for resolving this issue with the CBJ Public Works Department.
  11. The applicant shall have the construction of the rockery retaining wall inspected by a licensed civil engineer and provide certification to the CBJ Engineering Department that the wall was constructed in accordance with the design plan and details.
  12. Prior to commencing work on the site, the applicant shall consult with Alaska Department of Fish and Game to determine if stipulations and/or a special permit are required due to the proximity of the work to Lawson Creek.
  13. The applicant shall install the silt fencing no closer than 50 feet as measured to the ordinary high water mark of Lawson Creek.

Mr. Allington asked what previsions are in place for the maintenance of Old Lawson Creek Road. Who is responsible if this project damages the road? Mr. Gillette stated that the road itself is a private easement governed by the people that own it. In this situation, the residents have an informal arrangement for its maintenance. While it is logical to expect the applicant to be responsible, the city has no jurisdiction in that regard. Likely the residents will be working with the applicant on this issue.

Mr. Allington asked for further clarification on the ownership of the easements. Mr. Gillette explained that each property owner has granted an easement and all property owners use the road and share in the maintenance. The situation has existed for many years but there are no legal documents in place that dictate who does what. Nevertheless, the owners have successfully worked out issues such as snow removal.

Mr. Kendziorek asked procedurally, since the Planning Commission will be asked to waive several mandatory conditions, is it appropriate for that to be included in the motion? Mr. Gillette indicated that it would be.

Mr. Allington asked if the mandatory conditions listed in the recommendations were the only mandatory conditions stated in the Land Use Ordinance. Mr. Gillette said that was true.

Public Testimony:

Jim Becker, 3451 Douglas Highway, is a property owner on Old Lawson Creek Rd, is concerned by what the ultimate project will be. Additional traffic brought on by future development is a concern for residents, he states. Mr. Becker raised the safety concerns surrounding the blind corner on Old Lawson Creek Road. Specifically, he was concerned by heavy truck traffic on that corner during the early morning hours. Mr. Becker requested a brief extension so that the neighborhood could discuss the future project plans with the property owner.

Bonnie Zeman, a resident of Old Lawson Creek Road, requested a postponement so that the neighborhood could have a chance to sit down together and discuss the project. Because the residents all share the same driveway, communication was imperative. Her primary concern was that the blind corner on the hill is unsafe and the property owners need time to devise a safer route.

Dave Hanna, 11495 Mendenhall Loop Road, is the contractor for the proposed project and he is very familiar with the site. Mr. Hanna stated that the owners purchased the land several years ago and have since improved the land by removing junk, improving longstanding drainage problems, and the property has been graded. The work proposed will be a net improvement and will generally clean up the neighborhood. The road is in great shape and he did not anticipate any impacts from heavy truck traffic on Old Lawson Creek Road. Mr. Hanna addressed the concerns over what the future use of the site will be. He reminded the Planning Commission that that was not the issue tonight. Instead, attention should be paid to the improvements that the applicant will be making to the property and to the neighborhood in general.

Mr. Bruce asked if the owners would object to a condition requiring signage announcing that truck traffic was on the road. Mr. Hanna said that would not be a problem since he posted signage on his worksites as a matter of course anyway.

Mr. Kendziorek asked what impacts would result if truck traffic were limited to the hours of 8 a.m. to 4 p.m. thereby avoiding conflicts with rush hour traffic. Mr. Hanna indicated that limiting hours would be a significant detriment to the applicant. Since the project is starting late in the year, any delay in making a decision or limiting hours could postpone the project till next spring. Mr. Hanna believed that the hours proposed were reasonable.

Mr. Allington asked if the owner would object to an 8 a.m. start time to avoid impacting rush hour traffic. Mr. Hanna stated that since the trucks are not oversized equipment there is no problem with them blending with traffic. Mr. Allington asked if the applicant would object to a condition requiring them to maintain Lawson Creek Road from the north end of the property to Douglas Highway during the time of the project. Mr. Hanna stated that the applicant is willing to maintain the roadway for the duration of the project, but once the project shut down for the winter, they applicant didn’t want to imply that they will be responsible for maintenance. For example, snow removal.

Mr. Kendziorek and Mr. Bruce asked staff how this project and hearing before the Planning Commission was noticed. Mr. Gillette indicated that notification was accomplished according to procedures.

Mr. Bavard did not want the applicant to be unduly burdened by limiting hours of operation, but he too was concerned by the project’s impact on rush hour traffic and suggested that an 8 a.m. start time was more reasonable.

Commission Action:

Motion: by Mr. Kendziorek that the Planning Commission approve USE2000-00059 and that the conditions of 49.65.235 that do not apply to this one time extraction be waived;

and accept staff findings and recommendations with the addition of Condition No. 14: that the dump trucks operate between the hours of 8 a.m. and 5 p.m.

Mr. Bavard asked if the motion substitutes the hours of 8 a.m. and 5 p.m. for the hours specified in Condition No. 7. Mr. Kendziorek stated that his motion addressed dump truck traffic and the he had no concerns about equipment operating on site at 7 a.m.

Mr. Allington suggested Condition No. 15: that the applicant be responsible for maintaining Old Lawson Creek Road during actual operations, in and acceptable condition, adjacent to the developed property from the north end of subject property to Douglas Highway.

Mr. Kendziorek considered that a friendly amendment.

Mr. Bruce offered Condition No. 16, that the applicant post signage stating, "Trucks are on the road," when in fact that they are.

Mr. Kendziorek considered that also to be a friendly amendment.

Mr. Bruce called for a roll call vote on the motion with two amendments.

Roll Call Vote:

Yeas: Allington, Bavard, Bruce, Gladisziewski, Kendziorek, Sanford

Nays: None

The motion 2000-00059 passed unanimously, 6 – 0.

USE2000-00063

EXTENSION OF EXISTING LARGE MINE PERMIT FOR THE DEVELOPMENT AND OPERATION OF THE KENSINGTON GOLD MINE.

Location: KENSINGTON MINE

Applicant: COEUR ALASKA INC.

Staff report: CDD Planner Cheryl Easterwood gave a brief staff report. A Large Mine permit was issued to the Kensington Mine in 1997 and an 18-month extension was granted in 1999. The Code allows for a permit to be extended twice. Public concerns center on the fact that since the mine was permitted, Coeur Alaska has been exploring other ways to mine. Their goal is to find a method that is both acceptable to the EPA and profitable. Ms. Easterwood indicated that the action to extend the permit would not address any of those changes; it would only preserve the existing permit. Coeur Alaska would like to keep that option open if EPA does not approve their most recent proposal.

Staff recommendation: The Planning Commission adopt the director’s analysis and findings and approved the mine permit extension to be conducted as described in the original mine permit, MIN-M96-01 project description.

Public Testimony:

Bruce Baker, 18393 Tee Way, appears representing Lynn Canal Conservation of Haines. Mr. Baker stated that the old permit is no longer valid because Coeur’s main development plan has been abandoned by the company and their new plan bears little resemblance to what the Planning Commission approved three years ago. Therefore, the permitting process must begin anew.

Randy Wanamaker, 3814 Killewich Drive, is the employment project coordinator for BBC Human Resource Development Corporation, a subsidiary of Goldbelt, Inc. Mr. Wanamaker states that he was a part of the original committee that wrote the Large Mine permit. Mr. Wanamaker stated that granting the extension is consistent with the original intent of the committee that granted the permit. Furthermore, Juneau would benefit from the Kensington once it began operation.

Eric Klepfer, employee of Coeur Alaska, states that Coeur Alaska has found the gold market to be a challenge in recent years. The extension is important for both Coeur Alaska and for the community to make sure that the permitted plan is remains intact as a fallback measure. Mr. Klepfer hopes that within the next 18 months favorable news from the EPA will be released. At that time, Coeur Alaska will be back before the Planning Commission with the changes. In the meantime, it is important for Coeur that a fully permitted plan is kept intact.

Mr. Allington asked for clarification. If the circumstances were right and the finances were available, could the project proceed as permitted? Mr. Klepfer indicated that the project as permitted was doable.

Mr. Bavard noted the Large Mine permit that was issued three years ago followed many hours of hard work and the tremendous out-put of time and expense by of the applicant, staff, the public and the Planning Commission. What is before the Planning Commission is an extension of that existing Large Mine permit?

Mr. Allington asked staff what steps would be taken should Coeur Alaska change their tailings disposal method. Ms. Easterwood stated that such a change would bring Coeur Alaska back before the Planning Commission for approval of a new Large Mine permit.

Commission Acton:

Motion: by Mr. Pusich to grant USE2000-00063 and accept staff’s analysis, findings and recommendations.

Mr. Pusich next spoke in support of the motion, stating that there was a provision to grant two 18-month extensions and that this was not an extraordinary request.

Mr. Bavard indicated that he would also support the motion.

Without commenting on whether or not he supported the mine itself, Mr. Kendziorek stated that he supported the motion, feeling that it was a minor procedural step.

Roll Call Vote:

Yeas: Allington, Bavard, Bruce, Gladisziewski, Kendziorek, Pusich, Sanford

Nays: None

Motion passes and USE2000-00063 is approved unanimously, 7 - 0.

USE2000-00002

A SMALL MINE PERMIT FOR A PLACER MINING OPERATION WITH ONGOING RECLAMATION TO BE CONDUCTED 6 DAYS A WEEK FOR ABOUT TWO YEARS.

Location: JACOBSEN DRIVE

Applicant: THUNDER MOUNTAIN MINERALS INC.

Staff report: CDD Director Cheryl Easterwood reviewed the staff report noting that the applicant is a local firm seeking a Small Mine permit to excavate about six and a half million tons of the AJ mine tailings from approximately 14.46 acres of the Rock Dump. The tailings will be processed and re-deposited nearby. The applicants, who hold an active mining claim, have recently settled litigation with the surface owners and that the Settlement Agreement directs the terms and conditions under which mining can take place on the site. Terms from the Settlement Agreement have been incorporated into the State of Alaska’s mining lease, which DNR has finalized but has not released. DNR is withholding issuance pending receipt of a bond to be obtained by the applicant as well as a permit to be issued by the Planning Commission.

Ms. Easterwood continued her discussion by addressing the comments received from correspondence of Laurie Ferguson Craig. Ms. Craig raises three major issues that were also concerns by CDD. Ms. Easterwood stated that she would discuss the issues in the context of the letter before discussing the Conditions.

First, the stability of the Rock Dump area is of major concern. Mr. Brenner required the applicant to submit an engineered mining plan, which satisfactorily addressed the stability issue. Ms. Easterwood also explained that the Settlement Agreement called for compacting the ground following the processing. It also required testing both before to determine the density and after for verification. Before mining proceeds to the next cell, the parties must agree that the proper density has been achieved.

Ms. Craig raises in her letter the issue of health hazards. CDD was concerned about that as well. The main concern lies in the air quality. Staff found that the applicant has addressed the issue of dust creation and the mill contains a sprinkler system to mitigate dust. The applicant also proposes to sprinkle the area on an as needed basis.

Ms. Craig also was concerned by the Rock Dump’s status with the EPA as a potential Super Fund site. Ms. Easterwood explained that the Rock Dump is on a list that is a precursor to the Super Fund List. The EPA considers the area to potentially contain some contaminants and advises that it be looked at. There are two more steps to be taken in the process before the Rock Dump would be designated as a Super Fund site.

Finally, Ms. Craig raised the noise issue. Ms. Easterwood agrees that the operation could be very noisy and that this was a major concern for the CBJ and for the community. CDD discussed noise with the applicant and requested information documenting the noise potential of the operation. Furthermore, CDD stipulated with the applicant that if the noise levels were unacceptably high, CDD would require the applicant to submit a noise analysis by an acoustical consultant. The applicant contacted DEC and had each piece of equipment tested. Based on testing, they found that the total noise from the combined sources would be about 97 decibels. To put that level into perspective, Ms. Easterwood stated that the operation would be louder than Secon’s rock crusher at the Lena Point. Considering that noise attenuates over water, CDD predicts that a level of 67 decibels would be audible from Douglas without any further mitigating measures. 67 decibels is considered a noisy urban environment.

When the CBJ was reviewing an earlier Large Mine permit for the AJ, noise monitoring was conducted and a baseline noise level was then established. The baseline decibel levels are: 42 in the day and 39 at night.

Ms. Easterwood noted that the figure of 97 decibels assumes that all of the equipment will be operating at once. Therefore, the CDD and the applicant worked together to develop a package to mitigate the noise level and bring it down to acceptable levels. She added that the applicant was striving for a "no noise impact" standard. The package of mitigatons, outlined in the Conditons, include limiting the hours of the mill, require that the mill be housed in an enclosure, require that the mill and the screen not operate at the same time, it is believed that the daytime noise levels will be about down 50 decibels. If the operation of the screen and the mill is limited to daytime only, the nighttime noise will be inaudible in Douglas with the exception of the back-up alarms. Ms. Easterwood included a Condition that addresses that concern.

After reviewing the Findings in the Small Mine permit report, Ms. Easterwood concluded by making her recommendations to the Planning Commission.

Recommendation: That the Planning Commission accept the Director’s findings and approve a Small Mine permit for the operation of the AJ Rock Dump Gold Project. The Director recommends that the project be subject to the following permit conditions, which are reasonable necessary to mitigate adverse impacts, which may result from the mining operation. Further, the Director recommends that a financial warranty be established in the amount of $25,000.

The Director recommends that the Planning Commission adopt the analysis and findings contained in this report, set the financial warranty in the amount of $25,000, and grant the requested Small Mine permit subject to the following conditions:

  1. The permit shall be effective for a period of two years from the date of issuance.
  2. The small mine shall operate no more than 20 hours a day, Monday – Saturday. The mine shall not operate on Sundays or state or federally recognized holidays.
  3. Prior to commencement of operations, the applicant shall provide CDD evidence that AML will have available throughout the term of this permit, container vans to serve as visual and noise barriers. The vans must be sufficient in number to screen the operations and block all line of sight views or the operation from Douglas Island.
  4. Prior to the commencement of operations, the applicant shall ensure that container vans are placed so as to block views of the operation from Douglas. This shielding shall be maintained for the life of the operation.
  5. The impact mill shall be enclosed in a properly constructed noise attenuating enclosure. The enclosure shall be capable of reducing noise output at 50 feet by at least 5 dBAs.
  6. The impact mill shall not operate on Saturdays.
  7. The screen shall not operate between the hours of 7 p.m. and 7 a.m. If a noise enclosure is designed and constructed or other features are employed which attenuate the screen noise by 10 dBA, the hours of operation may be extended by the CBJ Community Development Director.
  8. The impact mill and the screen shall not be operated at the same time.
  9. The mine operator shall use ambient-sensitive vehicle back-up alarms set at the lowest noise levels that are still consistent with good safety practices and Mine Safety and Health Administration requirements.
  10. Sound levels from the AJ Rock Dump Gold Project shall not exceed 47 dBA at receiver locations in Douglas in the daytime (7 a.m. to 7 p.m.) and 42 dBA in the nighttime (7 p.m. to 7 a.m.). If complaints by Douglas residents are received regarding noise levels, the CBJ Community Development Director shall determine whether a third-party noise assessment is required. If the Director concludes that an independent noise assessment is required to determine if the operation is in conformance with the above noise standard, the applicant shall be responsible for the cost of such noise assessment work.
  11. Copies of the inspection results for the backfilled areas shall be submitted to the CBJ Engineering Department to verify suitability of the soil for building construction on each lot.
  12. Upon completion of the backfilling operations, the CBJ Department of Public Works, Wastewater Division, will inspect the sewer main between lots 6 and 7 to ensure the line has not been damaged or settled. Any repair work required for the main will be at the expense of Thunder Mountain Minerals, Inc.

Mr. Allington asked what the water source for the concentrator would be. Ms. Easterwood indicated that the water source would be salt water from the Gastineau Channel.

Mr. Pusich asked with regard to Condition No. 10, who pays for the decibel testing and where would the devises be set up. Ms. Easterwood clarified that the applicant would pay for testing but that the CBJ would contract with an acoustical contractor who would set up the methodology for the testing. Mr. Pusich asked if the City has received complaints with regard to the current activities going on at the Rock Dump. Ms. Easterwood believed that there might have been, however, when Secon operated a similar activity to what is being proposed now and there were no complaints received.

Mr. Bruce asked for clarification on Condition No. 10. Would the applicant be required to pay for additional noise suppression if it was found to be necessary? Ms. Easterwood indicated that the intent was yes; if the applicant were out of compliance then they would be required to employ additional mitigation to bring noise levels down and bring the project back into compliance.

Ms. Gladisziewski referred to Condition No. 10. If someone complains, monitoring commences and the noise levels shall not 47 decibels.

Mr. Kendziorek followed-up that question by asking if Condition No. 10 be invoked if anyone complained? Ms. Easterwood speculated that if complaints were to start coming in, CDD would go over and listen, gather information and if it appeared that the applicant was out of compliance then a third party would be brought in to monitor. Mr. Kendziorek asked if the Conditions only apply to the health affects on residents only or do they apply to workers in the general area. Ms. Easterwood stated that regulations apply to residential locations, only, but it behooves the CBJ to protect public safety wherever people may be. It was unknown how loud it would be for the adjacent property owners.

Mr. Kendziorek inquired about the dollar amount of the bond. It seemed that $25,000. was too low for the scope of the project. Terry Brenner, CBJ Engineering came forward to explain how that figure was determined. Mr. Brenner stated that he used the applicant’s operation plan where one cell at a time would be filled as material was processed. The $25,000 figure was worked up considering time and equipment rental costs for reclamation of one cell. Mr. Brenner stated that if the applicant were to be working multiple cells then the bonding for reclamation would be higher. The bonding does not take into account compaction testing or re-vegetating the area.

Mr. Allington asked about the dimensions and steepness of the burms. Mr. Brenner indicated that the material would stand up to a 1.48 to 1. Mr. Allington asked about the heavy metals coming out of the site. Where would they then be disposed of? Mr. Bavard suggested that the applicant address that question.

Mr. Allington suggested that Condition No. 5 be reworded to specify the actual decibel level. Ms. Easterwood offered to reword the Condition to state require that the enclosure result that the noise out put be about 91 decibels.

Ms. Gladisziewski asked if the applicant had agreed to the complicated list of Conditions. She thought that so long as the applicant keeps the noise output down to 47 decibels in Douglas, what interest did the Planning Commission have in directing the mining operations? Ms. Easterwood specified the Conditions to demonstrate how the noise levels can be acceptable for Douglas. Another approach would be to determine for the applicant what the acceptable noise level were and let the applicant work out how to achieve that.

Mr. Pusich returned to the issue of the bonding that was required by the State of Alaska. Would the City’s interest be covered in that document? Ms. Easterwood indicated that she has not seen the instrument, therefore, she felt a separate bond to protect the CBJ be required.

Mr. Bruce commented that in the permitting and lease application booklet, the applicant projects their reclamation costs to be $78,000. If that is the actual cost for reclamation, then perhaps the bond should be higher than $25,000.

Mr. Kendziorek noticed on a 1991 plat that there was a DEC Wastewater sign-off notation. Considering the age of the plat, is it known whether or not the applicant has a valid Wastewater permit? Ms. Easterwood had received the copy of the plat as a part of CDD’s request for information. Mr. Brenner indicated that it was not known whether the applicant had a current DEC Wastewater permit.

Mr. Allington commented that the since the applicant will be re-circulating water, and it was likely that a Wastewater permit was not required of the applicant by DEC.

Mr. Bavard called for a brief recess.

Public Testimony:

Larri Spangler, President of Thane Neighborhood Association. Ms. Spangler requested that the Planning Commission delay action on this proposal since her group has not had an opportunity to meet to analyze the application. While the TNA does not yet have a position on this issue, they have in the past, had significant concerns by this type of development at the Rock Dump. Noise, light, dust, subsidence are the major concerns of the neighbors down the road.

Clark Damon, resident of First Street, Douglas, was concerned about the nighttime noise level that would be allowed. He didn’t know how loud 39 decibels would be, but he thought it would be louder than what would be acceptable to him. As an older gentleman, Mr. Damon said he needs more than four hours of sleep at night. In closing, he stated that the accumulation of all the noises was not considered, and he thought it would be difficult attributing the various noises to their sources.

Mr. Kendziorek addressed Mr. Damon’s question stating that as a general rule, the human ear can perceive a change of three decibels from one sound to the next. Since CDD anticipates a change in the ambient nighttime noise level from 39 decibels to 42 decibels, Mr. Damon will likely hear the mine at night.

Carl Bosler, 1501 5th Street, Douglas, is concerned about the noise, the hours of operation and all of the unanswered questions. He’s not completely familiar with discussing noise in terms of decibels and he prefers terms such as loud or quiet. He is also concerned with continuous noise such as back-up alarms on AML equipment at night. During the day, the continuous noise fades into the background but at night, he finds it draining. He requests that the Planning Commission get a better handle on the noise assessment and limit the hours of operation so that the anticipated problems don’t develop.

Margo Waring, 1215 5th Street, Douglas, was concerned by the implication of heavy metals being introduced into the air via dust. There are no provisions in the proposal for how the re-introduced heavy metal will be addressed after the two years period is up. Ms. Waring was also wanted the cumulative impact of noise be addressed, particularly at night. Testing should be done so that the variables are all known and not assumed. The recent noise study commissioned by the City said that while distance does attenuate noise, it doesn’t do that over water and water can actually amplify sounds. In closing, Ms. Waring asked that something be put in writing as a contingency if the tacky AML vans do not actually attenuate noise as CDD has assumed.

Robert Reges, 226 St. Ann’s Avenue, Douglas, proposed five changes to the staff’s recommendations:

Robert Sewell, 903 5th Street, Douglas, spoke in opposition to the mine project. First, he considered the scope of the project over ambitious at processing 60 tons per hour for 20 hours a day. The idea was upsurd, particularly if the noise could be detected. There was no indications as to what noise level would be an acceptable level and he suggested that that issue be researched further. Mr. Sewell was dissatisfied with the short notice made to the Douglas Neighborhood Association and the Douglas Advisory Board. Mr. Sewell requested that the matter be delayed until those bodies had the opportunity to address the project.

Barry C. Wink, 1101 Mendenhall, represents the applicant, Thunder Mountain Minerals. Mr. Wink stated that he was available to field questions of the Planning Commission members.

Mr. Bavard asked how the disposal of heavy metals would be handled. Mr. Wink noted that the proposal included the disposal of heavy metals that have been deposited at the site. They are lead, zinc, silver and gold primarily, and all of which are saleable. Iron pyrite is the only metal that is not currently saleable and it will be shipped out for further extraction. The Falcon Concentrator will concentrate and recover 90% plus available metals in the AJ tailings, or sand. Mr. Wink stated that grinding of the tailings is not part of the proposal. He clarified the ‘mill’ is actually an impact grinder, which is a small crushing system that handles 20 tons per hour. He anticipates that 30% of the material will be ground, which equates to 10 to 15 feet of Lots A through F. The rest of the materials on Lots 5, 6 and 7 is comprised of sand-like tailings will be run through a centrifuge and will not require grinding. He added that the system is small, much smaller than the system previously employed by Secon earlier. The system is small, self-contained and includes a dust collector where it is wetted down. Any metals in the dust will be collected in the processing.

Mr. Allington asked what the finest screen that will be employed in the process. Mr. Wink stated that screening down to one sixteenth of an inch (1/16th).

Mr. Kendziorek asked if the operation would require a wastewater permit. Mr. Wink stated that the State of Alaska had reviewed the project for consistency with the Alaska Coastal Management Program, and it was found to be consistent. It was also determined that no wastewater permit would be required. Mr. Wink outlined for the Planning Commission the process. The applicant presented to the Office of Governmental Coordination a complete package of materials. The plans were next distributed to all relevant state agencies for review.

Mr. Kendziorek asked for a further explanation of the noise attenuating structure that would enclose the mill. Mr. Wink stated that Thunder Mountain Minerals suggested noise-attenuating measures anticipating objections from Douglas residents. Mr. Wink offered to put the impact mill into a freezer container outfitted with dense insulation. It is believed that the container would mitigate noise. However, he added that the impact mill would be operating only 30% of the time.

Mr. Pusich noted that testimony indicated that the hours of operation should be scaled back. How would trimming the hours of operation back to 14 hours a day, six days a week impact the proposed project? Mr. Wink described the 50 hp Falcon Concentrator as a small machine capable of processing only 60 tons per hour. If the project precedes 60 tons an hour, six days a week, it would be impossible for the project to be complete in 2 years. Mr. Wink stated for this to be economically feasible, the project had to run 20 hours a day for two years. As an incidental, Mr. Wink indicated that the applicant intends to utilize this system in other mine clean-ups in Alaska. The Federal Government now requires an assessment on old mine sites to determine which ones will be re-mitigated to recover heavy metals from tailings.

Mr. Allington asked what equipment would be used for excavation work. A 235 Cat excavator, Mr. Wink answered.

Mr. Wink commented on concerns expressed in testimony that the bond amount of $25,000 was too low. He explained that the CBJ is requiring a bond of $25,000 to insure that the applicant carries out reclamation requirements. He added that Settlement Agreement with the surface owners stipulate a strict set of guidelines for mining operations to proceed. For example, the applicant must complete work and reclamation cell by cell, have it signed off by the surface owners before it can proceed. Based on that restriction, the area to be reclaimed will always be contained to one cell and therefore, the bond proposed in the application were adequate. Beyond that, the State of Alaska also has bonding requirements in the amount of $500,000, wherein both the surface owners and the CBJ are included as additional parties.

Mr. Kendziorek asked what piece of equipment would be used since the proposal included two options. Mr. Wink stated that recent testing has ruled out the use of the Nelson Concentrator and the Falcon Concentrator will be used.

Dennis Harris, 352 Distin, is concerned by the heavy metals lodged in the Rock Dump, which may be released into the air via dust. Mr. Harris was also concerned by the additional noise introduced to the downtown area. If the applicant had a very good dust recovery system and were adequately bonded, and that the operation could be shut down for lack of compliance then he would be more amenable. He also suggested that the applicant be required to provide an insulated, sound proofed building with a roof to mitigate the potential noise.

Dave Hanna, 11495 Mendenhall Loop Road, grew up in the construction industry. He’s familiar with the work proposed and attested to the character of the applicants, stating they are sound individuals. He believed that the noise concerns could all be addressed and suggested that a review period be included to enable the project to proceed.

Gabrielle LaRoche, 1603 Beach Drive, stated that she shared the concerns expressed by other Douglas residents, namely that of noise and dust. She also questioned the assumption of noise attenuating over water. Ms. LaRoche asked that the Planning Commission modify the Conditions to reflect the following: that the hours of operation be reduced to 14 hours per day; to look for a binding commitment to noise abatement in terms of barriers; stipulate that noise levels not exceed 42 decibels during the day and 39 at night; and for the applicant to establish monitoring in Douglas rather than wait for citizens to complain.

Thom Wylie, 1603 Beach Drive, thought that the discussion should focus on ways to reduce noise levels in Douglas not permitting new noisemakers. He questioned noise level data is six years old. He thought that a delay was in order to give time to evaluate the recent noise studies and look at the cumulative impact of noise and not proceed ahead at creating increased noise levels. He felt that noise levels in Douglas were too high and he asked that the Commission delay action.

Mr. Allington asked Ms. Easterwood to expound upon Condition No. 10. She stated that it was included as a safeguard. There were unknowns involved in this project. Condition No. 10 gives the City an opportunity to go back to the applicant for additional mitigation measures if it turns out that the assumptions made were inaccurate. Ms. Easterwood added that the CBJ attorney had reviewed this Condition.

Mr. Allington asked why couldn’t the noise situation be ascertained is so that the Planning Commission could set realistic standards rather than wait for complaints to come in. Ms. Easterwood expounded on what was known with regard to noise levels. In 1992, the CBJ did noise monitoring and found the noise levels were 42 and 39 decibels. The noise consultants that did the recent monitoring have completed their work, but the information from Douglas was not yet available. The consultant did comment that the levels had increased by a couple decibels since the last testing had been done. Ms. Easterwood arrived at 47 by taking 42 decibels and adding 5 (the level that you start noticing some change). 42 decibels may be considered a low baseline. Later, if it is brought to the attention of CDD that the baseline may have been exceeded then staff would have a point at which we can follow up on, Ms. Easterwood stated.

Mr. Bavard asked what would happen if complaints came in and the applicant was called upon to get monitoring done, what would the timeframe for the monitoring. Would the process take a week? A month? Ms. Easterwood stated that many factors would be involved, but the process could take a week.

Mr. Bavard addressed Condition No. 5 and asked if that would be re-written. Ms. Easterwood indicated that there was a suggestion that Condition No. 5 be reworded so that the decibel level be specifically stated. She agreed with the suggestion.

Mr. Sanford asked if the CBJ owns monitoring devises and if so, using that devise, what level would the noise in Douglas have to reach before the CBJ would take action. Ms. Easterwood said the CBJ owned at least one monitor but making an assessment was not simple or straightforward. She explained that noise assessment and attributing it to sources is a specialized art and a science. Before she could answer that question, she said consulting with an acoustical specialist would be necessary.

Mr. Kendziorek commented on the number of unknowns contained in the proposal. Beginning with the question of the noise level and ending with the calculations contained in the operation plan that utilized data from a concentrator that has since been rejected by the applicant. Mr. Kendziorek didn’t feel that enough data pertaining to the Falcon Concentrator was presented by the applicant. Mr. Kendziorek was also uncertain about the details of the applicant's bonding and whether or not the applicant was incorporated. Mr. Kendziorek questioned whether the Planning Commission had adequate information for findings to support the application. He urged that the Planning Commission pass on acting.

Mr. Allington agreed with Mr. Kendziorek, stating that the applicant should have gathered noise data to support a baseline reading. He also believed that assumed baseline of 42 may not be correct considering that it is derived from 1992 data. He was also reticent to rely on the empty AML vans for noise containment.

Ms. Gladisziewski agreed stating that the lack of baseline noise data may not be a fair standard to hold the applicant to. Is it fair to impose a noise level of 47 when baseline is unknown? Ms. Gladisziewski asked how long would it take to acquire the information. Ms. Easterwood stated that the CBJ commissioned noise study results from Douglas should be available very soon. Ms. Easterwood indicated that she had received information from a conversation with the consultant. The consultant stated that the noise had gone up, about two decibels from the levels recorded in 1992.

Mr. Kendziorek asked if the application were denied, could the applicant reapply with more data at a later date? Ms. Easterwood explained that if the applicant were denied, he could re-apply at any time, or the Commission could continue the application pending the receipt of new information.

Mr. Sanford asked if the applicant could be given a test week for his equipment. Ms. Easterwood suggested the approach to take would be to add a Condition that adds a short trial period followed by review.

Mr. Bavard suggested that if there are unanswered questions, a solution might be to afford the applicant time to gather more data rather than issue a denial. There are many unanswered questions and it was apparent that the information contained in the application was inadequate. Ms. Easterwood said that the necessary data from the consultant should be known in about a month. She also suggested that an alternative would be for the applicant to hire an acoustical consultant that could look at the operation and provide data.

Mr. Allington commented that perhaps the applicant should be proactive and employ an acoustical consultant to assess the noise impact of the proposed operation and get advise on mitigating measures. He is supportive about continuing the application, but he was concerned about whether or not public testimony would be open when the issue came back before the Planning Commission. Ms. Easterwood stated that the Planning Commission Rules of Order state the public testimony could be re-opened with six votes.

Mr. Kendziorek restated that a lot more information is needed to proceed. For example, Mr. Wink indicated that the noise attenuation measure would be placing the equipment into a refrigeration truck, which is not designed for that purpose.

Ms. Easterwood added that the Conditions require a properly constructed noise attenuation devise and it is not a refrigeration truck. Mr. Kendziorek agrees with the testimony of Mr. Harris in that these trucks and vans may amplify noise. Ms. Easterwood said she did inquire with the noise consultant and learned that the vans may be able to attenuate noise by about five decibels. The consultant however, did not advise that the vans not be used to enclose machinery because of the vibrating factor.

Mr. Allington addressed the issue of light pollution and recommended the use of focused lighting called full cut-off luminaires.

Mr. Bavard stated that a continuance requires five votes.

Mr. Pusich supported of continuing the issue because more data was needed.

Mr. Bruce asked what type of notice would be provided if the issue was continued. Ms. Easterwood indicated that the future hearing would be re-noticed following the standard guidelines for public notice. She added that notice for tonight’s meeting was accomplished in the standard method: publishing in the newspaper, posting the site and notifying people within 500 feet. In this case, she telephoned the Douglas Neighborhood Association about two weeks ago as soon as a date for the meeting was set.

Mr. Allington asked if the Thane Neighborhood had been contacted. Ms. Easterwood said that neighborhood associations are sent faxes and e-mails, but only the Douglas Neighborhood Association had been called.

Mr. Bavard and Ms. Easterwood discussed what information was needed prior to re-hearing the Small Mine permit and agreed to issues including: a more precise project description, more definitive noise information, details related to the bond and ownership issue. Ms. Gladisziewski asked for clarification on noise attenuation across the water to Douglas. Mr. Bavard requested that this issue be rescheduled as soon as possible.

Commission Action:

Motion: by Mr. Bruce that the Planning Commission continue hearing of MIN2000-00002 for one month, to the October 24, 2000 Regular Planning Commission Meeting.

Hearing no objection, motion carries.

USE2000-00060

A CONDITIONAL USE PERMIT TO LOCATE AND OPERATE A PORTABLE ASPHALT PLANT IN THE LOWER WEST MENDENHALL VALLEY NEAR THE END OF CRAZY HORSE DRIVE.

Location: CURTIS AVENUE

Applicant: MONTANA CREEK DEVELOPMENT INC.

After consulting with staff, Mr. Bavard announced that due to the lateness of the hour and to the heavy agenda still before the Planning Commission, USE2000-00060 would be postponed until Wednesday, October 4th at 7 p.m. Mr. Bavard called a short recess at 9:40 p.m. and the meeting was called back to order at 9:45 p.m.

USE2000-00040

A CONDITIONAL USE PERMIT FOR A RESORT WITH BOTH LODGE AND CAMPING FACILITIES.

Location: 19200 WILLIWAW WAY

Applicant: DANIEL MALICK

Staff report: CDD Planner Sylvia Kreel reviewed the staff report noting that she would focus on the Conditions to allow the maximum time for public testimony. The application is for a permit to develop a commercial resort. Included in the plan are a luxury bungalow, that sleeps four, a bunkhouse style lodge with two bedrooms that sleeps up to twelve people, four tent sites and a shower and bathroom building. . The applicant also intends to accommodate larger events of up to 30 people for events such as weddings and family reunions. The applicant proposes to provide short-term rentals and day use. The lodge's secondary use would be for meeting space for up to 20 people on a year-round basis. The proposal does not include tours or rentals of equipment such as kayaks.

Access is provided through an easement on CBJ Park land. In 1992, the applicant paid about $4000 dollars for the easement, but at that time, no documents were drawn up and it is only now under negotiation with CBJ Lands and Law Department to determine the exact wording. Due to the property's proximity to CBJ Park land, the plan was reviewed by the Parks and Recreation Advisory Committee, which did not feel that the project would negatively impact the adjacent park.

Ms. Kreel addressed the impact of the project on the neighborhood. This project has generated many letters from neighbors all stressing the reasons why they live in the area. Ms. Kreel stated she was obligated to evaluate more tangible impacts such as traffic, noise, pollution, crowding and visual impact, all of which affect property values and neighborhood harmony. She briefly addressed the concerns:

Ms. Kreel explained that the maximum number of occupants were arrived at by the following analysis: It is know that there will be 4 in the bungalow, 12 in the bunkhouse, a maximum of 12 in the tent sites, for a total of 28 people. For situations like a wedding that have the potential of drawing more people, the number was limited to twice a year. Ms. Kreel believes that 28 guests also gives the applicant some flexibility, but the intent was to allow a meeting or maximum capacity of overnight guests, but not both concurrently.

Recommendation: That the Planning Commission adopt the Director's analysis and findings and grant the requested Conditional Use permit. The permit would allow the development of a resort facility in the D-1 zoning district as proposed. However, in order for the necessary findings to be made, staff finds the following conditions necessary and recommends that the project be approved subject to them. The conditions are intended to reduce the potential for impacts to public health and safety, and to prevent significant impact to property values or neighborhood harmony.

Use of the site by day (for meetings or otherwise) or overnight users shall not exceed a total of 28 people per day, with the exception of twice a year when larger events are permitted.

Conditions:

  1. Prior to operation the applicant shall construct or improve turnouts along the access road. The CBJ Community Development, Engineering and Parks and Recreation Departments shall review the location of the turnouts prior to construction.
  2. Exterior lighting shall be shielded so as to not create visual impact.
  3. Prior to operation, the large rock at the terminus of the cul-de-sac shall be removed so as to improve fire truck access and maneuverability.
  4. Prior to operation as a lodge, the cistern on the property shall be fitted with a coupling devise, approved by the Fire Department, compatible for fire truck hook up.
  5. With the exception of uses permissible without benefit of a conditional use permit, there shall be no commercial use of the site between October 1 and May 1.
  6. The entry driveway shall remain clear of vegetation and rocks.
  7. Use of the site by overnight guests and day users, for meetings or otherwise, shall not exceed a total of 28 people per day, with the exception of twice a year when larger events are permitted.
  8. The subject property shall not be used commercially as a starting or end point for off-site excursions by non-overnight guests.
  9. The driveway and the cul-de-sac shall remain free of parked cars and shall be signed for "no parking" prior to operation. The signage shall be small scale, appropriate for the setting and shall be approved by the Parks and Recreation Department prior to installation.
  10. The applicants shall encourage overnight guests and meeting participants to carpool to the site.

Ms. Kreel said that the applicant had submitted comments with regard to the Conditions but CDD made no changes based upon their recommendations. There were, however, several modifications that she has made, as well as the addition of Condition Nos. 11 - 13.

Condition No. 2 is modified to state, "existing lighting shall be shielded with full cut-off lights so as to minimize visual impact. A lighting plan shall be approved by staff."

The applicant objected to this condition as well, but it is important that the impact of light be minimized for the neighbors.

Condition No. 3 deals with a rock, which has since been removed by the applicant.

Condition No. 5 has been modified following additional conversations with Randy Waters, the CBJ Fire Marshall. Mr. Waters suggested that Condition No. 5 state; "the applicant shall maintain the roadway in the winter months for fire department access."

Condition No. 7 has been modified to add the word, "commercial," since the Condition is not intended to include the applicant and other people who are staying in his resident.

Condition No. 9 is opposed by the applicant. However, both the Fire Marshall and Director of Parks and Recreation are adamant that no parking occurs in the cul-de-sac or on CBJ Park land.

Ms. Kreel offered the following additional Conditions:

  1. Any paid or guided use of the Park land must be permitted before use in accordance to with Commercial Use of Park Property, CBJ 67.01.090 (i).
  2. The applicant shall maintain the road so it does not create erosion or drainage problems for Park land.
  3. That a restriction be recorded which prohibits sale of one property without the other unless uses of the property as a resort ceases.

Ms. Kreel concluded the staff report by displaying photographs of Cohen Drive, the neighborhood and the subject site.

Mr. Allington addressed Mr. Walsh’s letter and the issue of the current easement negotiations between Malick and CBJ. Ms. Kreel stated that in 1992, the Assembly passed the resolution granting the easement over Park land, but no actual survey points were laid out. Today, the specific details of the easement are under negotiations. In the end, the easement will encompass the area where the road is located. Ms. Kreel added that some public comments questioned whether the easement is valid since in 1992, commercial use of the easement was not disclosed. The Department of Law disagrees, stating that because the easement did not specifically state "for residential use only," therefore commercial use cannot be ruled out.

Mr. Kendziorek asked staff for clarification on the changes to Condition No. 5. Ms. Kreel explained that Mr. Waters requested that she change the wording because the applicant had assured him that the road would be maintained during the winter. Mr. Kendziorek asked if by changing Condition No. 5, the applicant was now able to use the facility 12 months a year. Ms. Kreel said yes.

Mr. Pusich asked about Condition No. 7. What monitoring mechanism is in place to monitor that the applicant is in compliance with the maximum capacity? Ms. Kreel indicated that the neighbors would be relied upon for monitoring and CDD would expect complaints and would respond to that. Mr. Pusich stated that it would be unfair to place that burden on the neighborhood.

Mr. Kendziorek asked if the Planning Commission could restrict access to the property by floatplanes. Ms. Easterwood believed that it could be restricted if the condition were phrased carefully. Mr. Kendziorek asked if the CBJ typically granted easements of Park land for commercial ventures. Ms. Kreel stated that they are not typically done at all. The exception is when special circumstances exist and access is a serious challenge. There is no restriction in the Code that prevents granting easements for commercial ventures. Mr. Kendziorek asked if the public had use of the easement. Ms. Kreel believes the wording of the easement will only allow the applicant and his guests to use the driveway. Depending on the wording, it may allow Parks and Recreation to open the driveway to provide vehicular access to the park. Mr. Kendziorek asked about the status of the dock. Ms. Kreel said DNR would require a tidelands lease if the Malick’s charged people to use the dock. However, if the Malick’s guests are allowed to use the dock as an amenity of lodge facility then they would not need a tidelands lease.

Ms. Gladisziewski asked about the property value issue. How did the appraiser analyze the property value impacts of the resort? Ms. Kreel spoke with several appraisers who all commented that vehicular traffic could affect property values but they felt that 36 car trips throughout the course of the day in an area where homes are set back and heavily vegetated would not significantly affect property values.

Mr. Allington comment that Condition Nos. 7 and 9 were unenforceable. Ms. Kreel stated that if all the Conditions were met then the project could meet the standards set out in Findings.

Mr. Pusich asked if service vehicles were included into the traffic volume analysis. Ms. Kreel said that it did not. Mr. Allington stated that traffic manuals estimates that 5 trips per car, per day, per household including mail carriers, service vehicles, etc. Under this analysis, the Malick’s property will generate approximately 45 car trips per day rather than the 36 that is predicted by staff.

Public Testimony:

Gary Miller, 20135 Cohen Drive, an officer of the North Tee Harbor Neighborhood Association and is their spokesman. Mr. Miller states that 22 member property owners out of a total of 31 have signed a resolution opposing the Malick’s request. The resolution followed a neighborhood meeting where Ms. Kreel explained the Malick’s request and how the neighborhood was zoned. He noted that many non-members are also opposed to commercial development. He notes that Title 9.49 of the CBJ states that the CBJ should ensure that development is in accord with the values of its residents. Most of the residents are opposed. If the neighborhood could decide the issue with a vote, the request would be denied. However, the members of the Neighborhood Association did not have the right to make that decision and deciding the destiny of their neighborhood lay with the Planning Commission. The neighborhood is zoned residential and the Malick’s are now seeking to establish a commercial venture. The majority of the neighborhood is opposed to for many reasons. Safety issues to be raised include the inadequacy of Cohen Drive for fire access, sanitation issues that include water supply and sewage, noise and parking issues. Mr. Miller asked that the Planning Commission reject the application and keep the neighborhood residential.

Tom Shirley, 19415 Glacier Highway, lives directly across the water from the Malick’s property. Mr. Shirley spoke in opposition. He was not aware of any other camping facility or resort being approved in a residential area. He believed that the noise impact of people living in tents has been severely underestimated.

Susan Shirley, 19415 Glacier Highway, stated that the proposal is inconsistent with D-1 Zoning and it is inconsistent with the beauty and natural setting of the residential area. She commented that Ms. Kreel gave Aldersheim Lodge as an example of a resort located in a residential area. Ms. Shirley rejects that because Aldersheim Lodge as well as resorts on Shelter Island is not in typical residential areas. The areas are occupied by weekenders who have residences elsewhere. There is no precedent because it is inappropriate. She was most opposed to tent sites and did not want to police the Malick’s compliance to the Conditions.

Dennis Harris, 352 Distin Avenue, was a member of the survey crew and he drew the original plat for the North Tee Harbor Subdivision. At the time of its development, he did not think that the road was placed in a good location. Cohen Drive is a dangerous road. As a downtown resident, he is opposed to the expansion of commercial tourism in residential areas. He was also opposed to putting the policing responsibilities on the neighbors. If the Planning Commission allowed the permit, he suggested that they make the Conditions enforceable.

Janice Smoker, 20007 Cohen Drive, spoke in support of the Malick's proposal. She has been a personal friend of the Malick’s for many years and they have together enjoyed the natural environment of their property. She considers them to be very conservation minded people who would not "foul their own nest.' It was unfortunate that the word, "resort" was attached to their project because the word was explosive and it doesn't describe the Malick's planned use. The community needed more small scale, low impact tourist facilities like the Malick’s are proposing.

Mr. Kendziorek commented that regardless of the Malick’s personal character, the permit goes with the land. That meant that if the Malick’s sell their property, the potential is there for another operator, who may not be as conservation-minded as the Malick’s. Ms. Smoker felt that the Conditions were adequate and would protect the neighborhood from a future owner.

Terry Quinn, 19905 Cohen Drive, stated that the staff report was helpful and well thought-out but it understates the resort's impact on North Tee Harbor. He disagrees that the impacts are limited and offers six points for consideration:

Lynette McNaught, 19929 Cohen Drive, is opposed to the proposal because the area is a low-density neighborhood and is a nice and tranquil area. She likes Kristine Trott and appreciates the efforts that her family has made to improve their property, but she feels that resort would be out of harmony with the neighborhood.

Dwon W. Hall, 9217 Longrun Drive, owns the property next to the Malick’s on the northern boundary. Mr. Hall commended the neighbors for the great work they have accomplished on their property without impacting the neighborhood. He opposes the proposal for a resort, however, and objects to a commercial venture in his neighborhood. Mr. Hall is most opposed to the inclusion of tent sites into the proposal and he is concerned about the sanitation impacts. His property is located within close proximity to the proposed tent location. Mr. Hall is concerned that campers may find the walk to the camp toilet facilities inconvenient and my instead utilize his property.

Kathy Miller, 20135 Cohen Drive, feels that the burden of monitoring the compliance will fall onto the residents. She does not object to overnight lodging, and she is sympathetic to the financial drain of paying a mortgage, however, everyone else in the neighborhood has bills to pay and dreams to build but they are doing that within the guidelines of the existing residential requirements. Ms. Miller asks that if the proposal be approved, that the city purchase the south point of Tee Harbor to maintain an intact public park on the Breadline Trail System.

Mr. Kendziorek noted that the time was 11:00 p. m. and noted that Planning Commission rules require that the meeting be conclude unless there were a motion to continue.

Commission Action:

Motion: by Mr. Kendziorek to suspend the rules and continue the Planning Commission meeting until its conclusion.

There being no objection, it was so ordered and the meeting continued.

Phillip Stewart, 20123 Glacier Highway, spoke in favor of the proposed project, stating that it was a perfectly acceptable conditional use of the property. Mr. Stewart has walked the property and has seen what the Malick’s plan to do. He doesn’t feel that the tent sites will not be in view of the beach and shouldn’t present any eyesore whatsoever. He supported that notion stated in Condition No. 13, that if any of the lots were sold, that the Conditional Use permit be cancelled.

Carol Bodenhamer, 19914 Cohen Drive, is a 19 year resident of the neighborhood. She is sad that this issue had been so divisive that the neighborhood has been irreparably changed. They chose to live in the rural environment and have paid taxes without getting the services. Now, she feels that they are being threatened with a major tourism venture, which goes against the protection that zoning should afford. She took exception to the comparison of the Malick’s venture with Aldersheim Lodge and the Salmon Bake. Neither is in quiet rural, residential neighborhood. The project does not fit the neighborhood, nor can the road support the traffic.

Rick Erickson, 20143 Cohen Drive, is a 20 year resident of the area. He supports the notion that residential area remains residential and industrial remain industrial. He does not object to B&B operations but he does not want the commercial use to go any further. He states that the road is precariously narrow and dangerous and he does not think the estimated 36 trips is accurate, since it doesn’t take into account the traffic generated by the 31 busy two car family residents traveling through the neighborhood. Cohen Drive is a narrow and poorly maintained road.

Dixie Alms, 19909 Cohen Drive, a two-year resident of the area. Ms. Alms wanted to also address the road issues of Cohen Drive. The road is narrow with several blind hills and the hazards are compounded by traffic driving at unsafe speeds. Ms. Alms is concerned about the safety of pedestrians, parked cars and family pets with the potential increase in traffic should this resort be authorized.

Jim Douglas, 19909 Cohen Drive, said that if this permit is granted, that it would be given in perpetuity meaning that other people besides the Malick's would have this use if it were granted. Mr. Douglas is concerned that there are not more Conditions addressing that issue. He is also concerned about the large influx of strangers into this low-density neighborhood. Additionally, there are potential noise issues, like skidoos, floatplanes or generators, that may accompany the influx of people and that have not been addressed. Mr. Douglas states that the amount of traffic has also been underestimated. Should traffic problems arise, who will police the situation? Cohen Drive is remote and does not get basic services such as frequent road maintenance and frequent police patrols. Again, these are all factors that been underestimated by staff. Mr. Douglas urges the Planning Commission to conclude that the proposal endangers public health of safety and it will substantially reduce the property value, notwithstanding the staff's recommendation.

Richard Hellerd, 19914 Cohen Drive, is a 20 year resident of the area. Mr. Hellerd and his neighbors have a great appreciation of D1 zoning, and he does not believe that mixed zoning is appropriate for his neighborhood. He stated that the Conditions worked out by staff offer no protection and they do not address the problems of excessive traffic and noise. First, there was a park at North Tee Harbor, then a park with a road in it and now the plan is for a park with a road and a resort and 45 cars a day. It is obvious that this is not what the neighborhood wants. He supports the Malick's pursuit of alternatives and suggests that they operate three B & B's on their property.

Gary Sanders, 19323 Glacier Highway, spoke in support of the Malick's proposal. Mr. Sanders lives across the cove from the Malick's and he has a full view of their property. He agrees with all of the Conditions and believes that the project would be an asset to the area and it would not impact his view or his enjoyment of the land.

Maria Lisowski, 19319 Glacier Highway, also lives across the cove from the Malick's property. Ms. Lisowski is concerned by the impact on property value and questioned the opinion solicited from the appraiser on this issue. Another key concern is the Malick's piecemeal approach to developing their property. She sites their acquisition of the easement and dock facilities that were obtained with statements that they were for personal use. Now it is clear that the Malick’s long-term goal was to acquire those amenities to be accessories for a commercial venture.

John Heimbuch, 20200 Cohen Drive, has lived on Cohen Drive for about a year. He states that had he known that a resort would be developed, he would not likely have purchased on Cohen Drive. He opposed the Malick's proposal.

Leimomi Matuno, is a Douglas resident who recently visited the Malick's property. As an outsider, she appreciates the concerns of the homeowners as well as the desires of the Malick's. However, she feels that people are displaying prejudice and she doesn't approve of attempts to tell the Malick's how to live. She believes that the Malick's are contientious, clean people who would bring in quiet and well behaved guests to their lodge. Ms. Matuno states that the subject for discussion ought not to be the Malick's lodge but the larger issues of industrial tourism's impact on Juneau.

Robert Martin, is a diver and resident of Douglas. He believes that the word "resort" is putting the project in an inaccurate context. The business, once fully operational, would be more akin to the operation of a B & B rather than a resort. As a diver, he is grateful for the opportunity to use the Malick's property to access the water. If the permit is authorized, he sees no problem with the Malick's allowing day use so that divers may continue to access the water.

Ms. Easterwood read into testimony a portion of a letter provided by Al Tingley, who was unable to attend the meeting in person.

Al Tingley, 20008 Cohen Drive, wrote that he is in favor of the Malick's request and he feels that the project would be a bonus to the neighborhood with minimal impacts. This is the type of non-industrial tourism that Mr. Tingley supports; furthermore, he feels that the proposal fits within the spirit of the current zoning of the neighborhood.

Dan Malick, 19200 Williwaw Way, is the applicant. Mr. Malick and his family have lived on the property on and off since 1984. His family loves their property and its remoteness, especially the fact that it is surrounded by water and CBJ Park land. Originally when Mr. Malick moved in, there were only a few homes in the cove. Over the years, however, he has seen the harbor fill up with houses. He didn't complain, he instead decided that if he had a problem with the way someone was developing their property then he'd buy it. That is how he acquired the property next to him. During the time that he has been out at North Tee Harbor, Mr. Malick has seen his property value rise from $50,000 an acre to $200,000 to $300,000 an acre. That is a tremendous financial load for an individual who is trying to keep it empty and naturally intact. He states that he is not trying to wreck the neighborhood nor is he introducing industrial tourism. He is merely trying to keep it as he found it. Mr. Malick intends to stop the process of dividing property up and building houses. For example, the last house that was built near by, the owner felled more trees and hauled in more fill than what Mr. Malick has done on his property in over twenty years. Furthermore, his property is six times the size of the neighbor's. He hopes to offset the expense of keeping his property in tact by sharing it with others. He recognizes that it is a conditional use of D1 zoned property to rent out a bed on a daily versus monthly basis.

Mr. Malick responded to public comments concerning the impact of his proposed resort on Cohen Drive. He suggested that the Planning Commission calculate how much money he has been paying in property taxes over the years and figure out how much in terms of road use that he was taking from CBJ resources. What was Mr. Malick's personal load allocation? Mr. Malick feels that he has paid his way, and earned his fair share of road use. Mr. Malick hopes that the Planning Commission understands that he is trying to be the best steward of his property that he can be and he hoped that they would back him in his efforts.

Mr. Bruce asked what were the plans for the tent sites. Mr. Malick stated that the intent was to offer a range of accommodations to suit the high-end bungalow users through the budget campers. He did not know what the need would be, however.

Mr. Bruce asked what provisions have been made for campfires. Mr. Malick said that he didn't think he'd allow campfires at the tent sites but he would probably put in place a pit for beach fires. Mr. Bruce raised the concerns of the neighboring property owner regarding sanitary facilities for the campers. Mr. Malick stated that he would deal with his neighbor's problems to his satisfaction.

Mr. Pusich raised the concerns expressed about water supplies during times of low flow and asked how the applicant intended to deal with that. Mr. Malick said if it were necessary to supplement the cistern collection system, he could truck water in. Additionally, there were two buildings on the property with catchment tanks on the top, there are two separate cisterns on the property, and there are two separate wastewater treatment facilities on the property. It was a manageable situation.

Mr. Pusich asked how the campers would feed themselves when they are camping out. Mr. Malick did not envision the area to be a place where campers came and lived out on the beach for a week. The lodge facilities would provide campers a place to cook.

Mr. Pusich asked if the brightly colored tents would be visible from across the cove? Mr. Malick said that bright orange in the trees might be visible somewhat, but at no time will the profile of a tent be visible from the beach.

Mr. Allington is concerned by the access road to the property and he inquired what does the applicant plan to do to make it safer? Mr. Malick replied that roads are very expensive to build. In the past, Terry Brenner had inspected his road and had determined that all concerns for public health, life and design were satisfactorily met; therefore, the road should be adequate now.

Mr. Allington asked Mr. Malick to expound upon the easement. Mr. Malick explained that most of the road is on the right-of-way, but there are portions where an easement was required slightly off of the right-of-way to accommodate the existing location of the road. In some cases, the easement is 20 feet wide, in other cases it is substantially smaller and then in others still, the road is not on the easement at all.

Mr. Bavard asked the applicant to address the three new Conditions proposed by CDD Planner Sylvia Kreel. In general terms, Mr. Malick opposed efforts that would limit his efforts to save the property from subdivision unless it specifically addressed health and safety issues. He did not want to jeopardize the lives of his family because it is the cheaper thing to do. If the Fire Marshall or Terry Brenner tells him to do something, he responds. He felt that some of the Conditions were analogous to killing the dog because your afraid of fleas.

Kristine Trott, 19200 Williwaw Way, is Dan Malick's wife came forward to address Mr. Bavard's question. Ms. Kreel first read the three new Conditions for Ms. Trott to respond to. Ms. Trott did not have any problems with the new conditions. She did want it to be clearly understood that if resort endeavor did not work out, that they must be allowed to sell off a portion of their lot just like any one else was able to do.

Ms. Trott returned to Mr. Pusich's earlier question about the cooking provisions available for campers. She stated that typically, campers travel with cook stoves to use for meals and there would be no open fires for cooking near the tents. There would be a beach barbecue available, which is a way from vegetation.

Ms. Trott responded to concerns expressed by her neighbor that campers would use his property in lieu of the toilet facilities provided. She didn't think that campers would be inclined to travel over to the neighbor's property simply due to the physical challenges of climbing up 7 feet from the beach to the spruce forest.

Ms. Trott concluded her comments by stating her objections to several Conditions listed in Ms. Kreel's report. She stated that the road is well designed, has been approved and is completely safe equipped with four pull offs and turn-arounds. She objected to making any further modifications to the road. She also thought that it was unreasonable to require people who launch their kayaks from their beach to also spend the night. In terms of the maximum numbers allowed, Ms. Trott thought that a more reasonable approach for the Planning Commission to take was to give them the flexibility to host larger events such as weddings, twenty times in a year rather than two. She stated that the property is covered with tall tree stands and no activity on the property would be visible to neighbors.

Nat Milner, 19790 Cohen Drive, said that the Malick's are good people with fine motives. However, there was no way that the recommendations could guarantee for the neighborhood what could happen. There could be a few quiet people spending the night or it could also be weddings and float planes every weekend. For that reason, he opposes the project.

Murray Walsh, 2974 Foster Avenue, appeared before the Planning Commission representing the interests of Tom and Sue Kocyba and Dwan Hall. The message is that of all the things that zoning does, the protection of the single-family neighborhood is the most sacred. He stated that there is enough uncertainty and fear involved in the proposal to warrant denial. If it is denied, he asked that the Planning Commission delay making their findings immediately, due to the lateness of the hour. He also emphasized that the resort would generate more traffic than additional single family homes would. The increased traffic on a road that is in bad shape and is infrequently maintained by the CBJ is reason enough to deny this application. He points out that the applicant is not without options, for example they could operate additional B & Bs.

Mr. Allington stated, with due respect to CBJ Engineering staff, that he's seen too much go on without adequate input from someone with traffic experience. He believes that the Malick's roadway is dangerous, and to open it up to commercial use would not be in the public interest.

A five-minute recess was called at 12:00 a.m.

Mr. Kendziorek asked staff which specific lot was the Conditional Use permit attached to? Ms. Kreel said it goes with both lots and that Condition No. 13 was drafted to clarify that the lots could not be separated without giving up the Conditional Use permit. If one lot were sold, the permit would be void for both lots.

Commission Action:

Motion: by Mr. Bruce that the Planning Commission accept the Director’s report and recommendations and accept USE2000-00040.

Mr. Bruce then spoke in opposition to the motion, stating that this was the clearest example of people’s fundamental property interests being in the control of the Planning Commission in terms of what is allowed to happen on a specific piece of property. Mr. Bruce commended the Malick's for resisting the trend to subdivide into smaller and smaller lots. But he believed that both the size and the scope of the project was pushing the envelope. He suggested that a smaller version would have been acceptable to both him and to the neighborhood. Specifically, Mr. Bruce opposed campsites included in the project.

Mr. Kendziorek stated that he opposed the motion as well. The proposed project was not conducive to D1 Zoning and that relying on the neighborhood to police Malick’s compliance was disharmonious for the neighborhood. He concluded by stating that the access road to the property was inadequate for commercial use.

Mr. Pusich spoke in opposition. He felt that there were far to many uncertainties contained in the proposal to be left to chance. No one was in a position to control what would be going on. The applicant wanted 28 people and then he wanted more. The number of people, the frequency of the events and the uncertainty were insurmountable to Mr. Pusich.

Ms. Gladiszsewski also opposed the motion. She appreciated staff’s efforts to mitigate the negative impacts of the proposal with the neighborhood but she believed it was out of harmony with the neighborhood.

ROLL CALL VOTE:

Yeas: None

Nays: Allington, Bavard, Bruce, Gladisziewski, Kendziorek, Pusich, Sanford

The Motion failed unanimously, 0 - 7.

Motion by Mr. Kendziorek that the Findings be put off until the next available opportunity of the Planning Commission on October 10th.

If at all possible, Ms. Kreel will attempt to have them complete by the October 10th Regular Meeting but her vacation plans may cause a delay.

  1. BOARD OF ADJUSTMENT
  2. OTHER BUSINESS – None
  3. DIRECTOR’S REPORT - None
  4. REPORT OF REGULAR AND SPECIAL COMMITTEES

Mr. Bavard announced that due to the lateness of the evening, there would be no reports of Regular and Special Committees

XIII. PLANNING COMMISSION COMMENTS AND QUESTIONS

Mr. Allington announce that he would be out of town and consequently he would be absent for the November and December Planning Commission Meetings.

XIV. ADJOURNMENT

There being no other business and no objection, Vice Chair Bavard adjourned the meeting at 12:20 a.m.