MINUTES
PLANNING COMMISSION MEETING
CITY AND BOROUGH OF JUNEAU
Johan Dybdahl, Chairman
REGULAR MEETING
April 10, 2001

Chair Dybdahl called the regular meeting of the City and Borough Planning Commission to order at 7:00 p.m., in he Assembly Chambers of the Municipal Building.

I. ROLL CALL

Commissioners present: Roger Allington; Mike Bavard; Dan Bruce; Johan Dybdahl; Maria Gladisziewski; Marshal Kendziorek, Mark Pusich, Merrill Sanford; Jody Vick

Commissioners absent: None

A quorum was present.

Staff present: Cheryl Easterwood, CDD Director; Oscar Graham, Principal Planner; Heather Marlow, CDD Planner, Teri Camery, CDD Planner

Other CBJ staff present: None

II. APPROVAL OF MINUTES

March 27, 2001 - Regular Meeting

Motion - by Mr. Kendziorek to approve the minutes of both meeting, each with a correction.

Hearing no objection, it was so ordered.

III. PUBLIC PARTICIPATION ON NON-AGENDA ITEMS -

Rich Kineen, is a local architect who is currently working on a project in the neighborhood near the Federal Building. He is developing a house on a lot that is actually about half the size of a standard lot. The problem he encountered is that the entire neighborhood is full of substandard lots, yet the properties are still subject to standard zoning ordinances. Mr. Kineen suggested that perhaps special zoning ordinances could be developed to fit the circumstances rather than taking up so much time pursuing variances. For example, in residential neighborhoods where dozens of substandard sized lots could be identified, a few minor adjustments to the ordinances could be made. Other neighborhoods that could benefit are Star Hill and the Casey Shattuck Addition area. The design community would have a much easier time dealing with those areas and CDD staff would not waste their time working on variances.

IV. RECONSIDERATION OF THE FOLLOWING ITEMS - None

V. CONSENT AGENDA -

Mr. Dybdahl announced that there were three items on the Consent Agenda and he inquired if there was any public comment. No one from the public wished to comment, and there were no questions from the commissioners.

MOTION: by Mr. Bavard to approve the Consent Agenda that included USE2001-00010; USE2001-00011 and USE2001-00012 (as listed below).

There were no objections to the motion and the Consent Agenda was approved.

USE2001-00010

A use permit for the conversion of a vacant structure to a group home.

Location: 00306 W EIGHTH ST
Applicant: COOPER CONSULTING ENGINEERS

Staff recommendation: That the Planning Commission adopt the director's findings and grant the requested Allowable Use permit. The permit would allow the utilization of an existing residential structure as a group home. The recommendation for approval is subject to the following conditions:

  1. Development Schedule – All activities required to expand the use of the facility to provide care for nine clients shall be substantially completed within five years from the date of approval of this Allowable Use Permit.
  2. Use – Use of the proposed facility shall be restricted to not more than 9 clients. Subsequent proposals to provide service for more than 9 clients shall be subject to approval of a conditional use permit.
  3. The applicant shall obtain a building permit for any work requiring a permit as determined by the CBJ Building Division before commencing said work. Multiple building permits may be required and issued to meet the applicant’s phasing requirements to fully convert to a nine-client facility. The completed facility shall meet the minimum applicable standards of the Americans with Disabilities Act (ADA).

 

USE2001-00011

A conditional use permit to allow a second story on top of an existing non-conforming building, which is 3.62 ft. from the rear setback line.

Location: 00419 KENNEDY ST
Applicant: ROBERT W KING

Staff 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 second story on top of an existing non-conforming building, which is 3.62 feet from the rear setback line, at 419 Kennedy Street.

 

USE2001-00012

Conditional uses permit to allow explosive storage.

Location: 00000 HIDDEN VALLEY
Applicant: SECON INC

Staff recommendation: We recommend that the Planning Commission adopt the director’s findings and grant the requested conditional use permit. The permit would provide for the storage of explosive products in 2-3 magazines located in Hidden Valley (Upper Lemon Creek) for a period of 5 years. The recommended approval is subject to the following conditions:

  1. The applicant shall comply with all federal state and local regulations relating to the, transportation, handling, security and storage of explosive materials.
  2. The applicant shall adhere to all applicable provisions of Article 77 - EXPLOSIVE MATERIALS of the Uniform Fire Code (1997).
  3. The applicant shall consult with the Juneau Fire Marshall to designate travel routes through the City and Borough and obtain any permit(s) required prior to transporting explosives within CBJ jurisdiction.
  4. The applicant shall submit an emergency response plan to the Juneau Fire Marshall following approval of the conditional use permit, prior to siting magazines.
  5. The applicant shall require and assure that all carriers utilizing the facility to obtain the necessary permits prior to transporting explosives within the City and Borough of Juneau.
  6. The facility shall be approved for a period of 5 years from the date of action by the Planning Commission.

VI. CONSIDERATION OF ORDINANCES AND RESOLUTIONS - None 

VII. UNFINISHED BUSINESS - None 

VIII. REGULAR AGENDA - None

 

MAP2001-00001

A zone change from Rural Reserve to General Commercial for approximately 17 acres.

Location: 00000 HOSPITAL DRIVE
Applicant: JOSEPH HENRI

Staff report: Heather Marlow, CDD Planner briefed the Planning Commission on the request to change the zoning designation of approximately 17 acres in the vicinity of Salmon Creek. The applicant has stated his general interest in developing the area to augment the various healthcare facilities in the vicinity. In fact, the applicant states that this zone change is a continuation and expansion of the General Commercial zone that borders the subject property. As well, the zone change is necessary for the applicant's intended uses of the property.

Alaska Electric Light and Power commented that developers of the subject property must be made aware that they are developing a parcel in a floodplain. In the unlikely event of a dam failure, residential/medical facilities with sleeping areas would be difficult to evacuate and are therefore discouraged by AEL&P.

After reviewing the project, Ms. Marlow states that the request meets the submittal requirements of the Land Use Code, the request conforms to the Comprehensive Plan and the request create or aggravate safety concerns of the Salmon Creek Dam.

Staff recommendation: That the Planning Commission adopt the director’s analysis and findings and forward a recommendation of approval to the Assembly to change the zoning of subject area from RR, Rural Reserve, to GC, General Commercial.

Mr. Pusich asked about the presence of the flood zone. Ms. Marlow referred to Exhibit E, presented by AEL&P. The map indicates that the flood zone is about 375 to 400-feet wide and it parallels Salmon Creek. Ms. Marlow noted that most of the property was primarily out of the flood zone.

Mr. Allington asked about traffic impacts. If this zone is changed, will the subsequent development of the property still have to be analyzed for traffic impacts? Ms. Marlow said that if it were a minor development, staff would look at it. If it were a major development, it would be forwarded for review and perhaps traffic analysis to the Planning Commission.

Public Testimony:

Joseph Henri, 9921 Near Point Drive, Anchorage, is the applicant. He thanked CDD staff for their professionalism and courteous handling of his request. Mr. Henri stated that he would be available to answer any questions.

There were no questions from the Planning Commission and no one else from the public wished to testify.

Commission Action:

MOTION: by Mr. Pusich that the Planning Commission adopt the director's analysis and findings and forward a recommendation that the Assembly approve the change the zoning of the subject area from Rural Reserve to General Commercial.

There was no objection to the motion, and it was so ordered.

USE2001-00005

An Allowable Use permit to allow a manufacturing use in an existing warehouse building.

Location: 02631 CHANNEL DRIVE
Applicant: JENSEN YORBA LOTT, INC.

Mr. Bruce announced that Jim Triplett and Triplett Construction is his client and so he recused himself from consideration.

Staff report: Mr. Graham summarized several primary features of the project for the Planning Commission. He stated that approximately 55,000 square feet are uplands and approximately 76,500 square feet are tidelands. The project involves three phases: the first phase is existing and represents the building that is on site. The second phase consists of the second floor addition and site development. This also includes developing the manufacturing use within the facility and the demolition of the existing office structure, construction of the mezzanine and second floor office, parking and re-vegetation. Additionally, the exterior will be finished with metal siding and vinyl windows. Phase three consists of the construction of the dock structure and floats.

Mr. Graham reports that the JCMP speaks to the project in several important ways: shoreline relevancy and line of outward development. In order to place the dock in this location and to prevent grounding of barges, the dock will need to be constructed beyond the line of water-ward development. This specific location must be utilized because it is a part of the long-term business plan of the applicant and the public need for manufactured panels in Southeast Alaska is notable.

Mr. Graham states that the Coast Guard was contacted and they indicated that the project would not present any navigation impacts. The Coast Guard would like to continue to evaluate the project in conjunction with the ACMP review as it develops.

Finally, if the Planning Commission had questions, the project architect, Wayne Jensen and the applicant, Jim Triplett were both in attendance and they could answer questions.

Staff recommendation: That the Planning Commission adopt the director's analysis and findings and grant the requested allowable use permit. The permit would allow a manufacturing use along warehouse space, offices, and a dock facility in a waterfront industrial zoning district. The approval is subject to the following scheduling conditions:

  1. Prior to issuance of a building permit, the applicant shall submit to CDD staff for review and approval specific luminaires which would not cause glare onto adjacent properties, roadways, or across the channel to Douglas Island.
  2. Prior to the issuance of a final certificate of occupancy, the owner shall construct the parking facility, sidewalk, curb, and install the landscaping as indicated on the plan.

Further, the following stipulations of the JCMP shall be met:

  1. Non-creosote Pilings. No pentachlorophenol preservatives may be used on pilings and wooden structures in marine waters. Any other preservative on pilings and wooden structures must be applied by pressure injection.
  2. Disturbance of tidelands must be kept to the minimum necessary to practicably accomplish the work. Operation of machinery and equipment on tidelands must be limited to the smallest area practicable. Entry of fines and suspendable material into the ocean must be kept at the minimum practicable.
  3. Reasonable precautions and controls must be used to prevent incidental and accidental discharge of petroleum products.
  4. Material such as absorbent pads and booms must be available on-site, and must be used to contain and cleanup any petroleum product spilled as a result of construction activity.
  5. The dock shall not impede lawful navigation and shall be consistent with recommendations of the US Coast Guard.

Mr. Allington asked for clarification of the term "non-creosote pilings" noted in Condition No. 3. Mr. Graham indicated that CDD did not want to see pilings treated with creosote. For clarity, Mr. Graham offered to state "no creosote" pilings.

Mr. Bavard asked about the phases of the development and the length of time planned for their completion. Since the dock is four or five years away, will there be a problem with permits expiring? Mr. Graham stated that they were dealing with construction phases, and the first phase had already been completed. Since the applicant has initiated actions relative to phase two, it will lengthen the period of time that he has to act under the permit.

Mr. Kendziorek was concerned about notices of violations on the record for the site. Have all of those issues been addressed and resolved? Mr. Graham summarized by stating that the building issues had been addressed, but the certificate of occupancy had not yet been issued because of outstanding land use issues. With the completion of phase two, the land use issues will be satisfied as well as the building issues.

Mr. Kendziorek asked if it were standard for Notices of Violation to be issued and for no enforcement action to occur until the applicant comes to the Planning Commission for additional permitting? Mr. Graham stated that there is a commonly recognized dichotomy between building related issues and land use issues. In this case, CDD is trying to reconcile the issues through approval of this permit.

Mr. Pusich asked if there would be a Temporary Certificate of Occupancy issued? Mr. Graham indicated that a Temporary permit would be issued during the interim.

Public Testimony:

Wayne Jensen, of Jensen Yorba Lott, Inc. appears for the applicant, Jim Triplett. Mr. Jensen states that the applicant is very interested in completing the project and he is embarrassed about the appearance of the existing building.

Mr. Allington asked what other treatments besides creosote are suitable for marine environments? Mr. Jensen suggested perhaps galvanized steel or other non-wood materials.

Mr. Bavard asked when phase two is estimated for completion? Mr. Jensen said that phase two was the building, and hopefully it would be completed this summer.

Commission action:

MOTION: by Mr. Kendziorek, to approve USE2001-00005 including the director's findings, analysis and recommendations and conditions, with a modification to Condition No. 3 stating "no creosote pilings shall be used."

Mr. Allington suggested that Condition No. 1 be modified to state "full cutoff luminaires."

Mr. Kendziorek accepted that as a friendly amendment.

Mr. Bavard spoke in favor of the motion. The building is an eyesore and once it is completed, the project will be a good looking site.

There was no objection to the motion, and it was so ordered.

The Planning Commission adjourned at 8:00 p.m. and reconvened as the Board of Adjustment.  

 

IX. BOARD OF ADJUSTMENT -  

VAR2000-00040

A Variance to build a garage with a 5-foot setback.

Location: 04471 MOUNTAINSIDE DRIVE
Applicant: DEBORAH PUSICH

Mr. Pusich announced that the applicant was his cousin, however, that did not present a conflict for him.

Staff report: Teri Camery briefed the Planning Commission on the Variance request in the Mountainside Estates neighborhood. She also gave a clarification: in the staff report, the lot size was incorrectly identified as 9,949 square feet. The actual lot size is 7,949 square feet.

The applicant requests a variance to construct a one-story detached garage 5 feet from the side-yard setback where 10 feet is required. The proposed garage is 384 square feet with dimensions of 16 feet by 24 feet, and approximately 14 feet high. The applicant plans to remove the existing portable shed and place the garage in its location. The applicant’s goal is to build a garage for one vehicle with additional storage space, and have an outside space remaining next to the garage to park a boat.

The existing home is an attached home as part of zero-lot development, which requires a 10-foot side-yard setback. A detached home in this zone requires a lesser side-yard setback of 5 feet. The lot has road access to the northeast from

Mountainside Drive and from the southeast from a private alley known as Venus Lane. The home includes an attached single-car garage at the common property line of the zero lot development.

In March, a boundary adjustment was completed, which widened the southwest portion of the lot and increased the lot size by approximately 300 square feet.

The only suitable location for a second garage is in the leveled area at the rear of the lot with access from the alleyway. There is an 8-foot drop in elevation below the home, but that does not affect the placement of the garage in relation to the side-yard setback. Constructing the garage to comply with setbacks would place the garage two feet from the porch steps and it would not allow for parking a boat. Neighbors have provided written letters stating that they do not object to the applicant's proposal. In fact one neighbor states that if the applicant constructs the garage in conformance to setbacks, the garage will have a much greater impact on their view. Another neighbor has conveyed property to the applicant so that the proposed garage may be accommodated.

Ms. Camery reports that the proposed garage would be generally in conformance to the pattern of development in the area. Staff’s site visit revealed that the proposed garage would be scarcely visible from Mountainside Drive because of the 8-foot slope of the property.

Nevertheless, staff has determined that Ms. Pusich's situation does not meet the grounds for a Variance. The conditions or hardships and practical difficulties resulting from an extraordinary situation or unique physical features are not present and therefore, the conditions necessary to grant a Variance do not exist. Specifically, Ms. Camery states that the Variance request does not meet Condition No. 5(A), 5(B), 5(C) and 5(D).

Staff recommendation: That the Board of Adjustment adopt the staff analysis and director's findings and deny the requested Variance.

Public testimony:

Bryce Patsy, 4471 Mountainside Drive, is the owner of the property. He states that he has always wanted to put a garage in the area to accommodate his storage and workshop needs. To meet that goal, recently Mr. Patsy acquired a small portion of his neighbor's property to better accommodate the proposed garage. After leaning about the setback requirement, Mr. Patsy scaled back the size of the garage. As well, he has been cognizant of his neighbor's views and he's limited the garage size as to not interfere.

Mr. Bavard asked for Mr. Patsy to discuss the property line modification. Mr. Patsy said his lot used to angle off and narrow. His neighbors offered an unused sliver of land that contained a drainage area for his use. Originally, Mr. Patsy believed the setback to be 5-foot and that the property acquisition would allow for the garage, however, he later learned that a 10-foot setback was required.

Mr. Kendziorek asked if the 8-foot slope was behind his house alone. Mr. Patsy stated that the embankment spans the entire back yard and it continues across to the adjoining zero-lot line. Mr. Patsy distributed pictures for the Planning Commission to view.

Mr. Bavard asked if the applicant had any comments in rebuttal to staff's findings regarding criteria No. 5. Mr. Patsy stated that if the 5-foot setback was not granted, he would construct the garage but it would be a detriment to his neighbor’s view.

Mr. Allington made reference to Attachment B, which indicated Lot 10 was split into 10A and 10B to develop a zero-lot. Did the 8-foot embankment, which was created when the pad for Lot 10B was built, extend into 10A or into lot 11? Ms. Camery said that the embankment extends into Lot 10A, but not into Lot 11.

Mr. Kendziorek asked staff to clarify the circumstances and rules in which the Planning Commission might grant a Variance. Ms. Camery stated that there are two issues. First, staff indicates that Ms. Pusich's request does not meet the grounds for a Variance. There are no extraordinary circumstances that affect a single parcel and there is no evidence of hardship and practical difficulty. Nevertheless, the Board must first determine if the request meets the grounds for a Variance. If it finds that it does, the Board must next determine if the request meets all of the criteria. She reminded the Board of Adjustment that staff determined Ms. Pusich's request did not meet criteria 5.

Mr. Bruce said that there was a combination of factors at work. First, the parcel was bordered on two sides by rights-of-way. It also has a zero-lot line configuration and, if the applicant builds a conforming garage, he would block the neighbor's view. Mr. Bruce stated that for him, it amounted to a hardship and a practical difficulty especially for the neighbor who faced the loss of their view. Furthermore, Mr. Bruce commended the applicant for trying to avoid harming the quality of his neighbor's property.

Ms. Gladsziewski asked if the applicant could build a smaller garage? Mr. Patsy indicated that the proposed size is actually very small and he cannot go smaller than 16x24.

Mr. Allington noted that Lots 10A and 10B both have an 8-foot slope that doesn' t affect Lot 11. Didn’t the slope create the part of the problem and doesn't that amount to a unique physical feature? Ms. Camery disagreed, stating that the 8-foot slope did not figure into the placement of the garage from the side-yard setback.

Mr. Dybdahl asked staff if the applicant had not acquired the sliver of property from his neighbor, would the staff's recommendation been materially different? Ms. Camery didn't think that the narrowing property line prior to the property acquisition would have affected the outcome of the staff report nor would it justify the Variance.

Mr. Pusich asked staff if the alleyway weren't a unique feature? Ms. Camery stated that the alleyway created two access points for the entire block and it affects about 16 lots. Furthermore, the alleyway affects the rear setback not the problematic side-yard setback.

Mr. Allington suggested that if the proposed garage were moved northerly towards the house and into the 8-foot slope, it appears that the 10-foot side-yard set back could be achieved without interfering with the deck.

Mr. Bryce stated that the Mr. Allington's scenario would result in the majority of his yard being closed off and he would not be able to park his skiff. He would also have to dig out the bank and install a retainment system.

Mr. Allington suggested that Mr. Bryce’s comments had pinpointed the unique characteristic where compliance would be overly expensive.

Mr. Kendziorek continued with Mr. Allington's thought that if the applicant excavated the embankment and installed a retaining wall, would that not be an expensive proposition? Mr. Patsy agreed that it would.

Public testimony was closed.

Mr. Allington stated that the applicant could achieve a 10-foot setback by excavating into the slope and placing the garage there. However, this is very expensive. Further, he believed that this lot was an anomaly.  

 

Commission action:

MOTION: by Mr. Kendziorek that the Planning Commission approve VAR2000-00040.

Mr. Kendziorek commented on his conflicting thoughts. While he understood what the applicant was trying to achieve, the Variance seems to fail because there seems to be no unique physical feature. However, there was the issue of the expensive retaining wall that also seemed to present a hardship for the homeowner. Mr. Kendziorek invited the comments of other Commissioners.

Mr. Bavard agreed that the neighborhood had tried to make this work. He cited the letters of support and the gesture of the land conveyance.

Mr. Kendziorek rebutted, stating that neighborhood support was not a condition that the Board of Adjustment had the liberty to consider as criteria. Mr. Kendziorek suggested that the Board arrive at an extraordinary situation and perhaps the 8-foot bank was the best hope.

Mr. Bruce spoke in support of the motion, adding that he lives in that neighborhood, and he was aware of at least 6 lots that were affected by the slope. He suggested that if the applicant builds a conforming garage, which interferes with the neighbor's view, a hardship for the neighbor is created. If the applicant builds back and into the slope, an expensive project cost-type hardship is created.

Mr. Bruce suggested that there was an extraordinary situation based upon unique physical conditions. The unique physical features are the 8-foot slope, the view and the roads. As well, the potential cost of the retaining wall would be extremely expensive.

Mr. Dybdahl called for a vote on the Motion.

Roll call vote:

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

Nays: none

The motion carried with a unanimous vote. Next, Mr. Dybdahl asked for a motion on the Findings.

MOTION: by Mr. Kendziorek, that the Planning Commission adopt Findings and the recommendations for VAR2000-00040. Findings match those presented in the staff report, except 5 (c) where it shall stated:

The unique physical feature of the property is the 8-foot slope from behind the resident. This feature does affect the placement of the garage within the required side-yard setbacks, as it would involve substantial hardship to the applicant if he had to build a retaining wall and excavation works. Placing the garage into the viewplain of the neighbors would also present a hardship to the neighbors.

Finding No. 3 is changed to state, "yes."

There was no objection to the Motion, and it was so ordered.

VAR2001-00011

A Variance to build a garage with a 5-foot setback.

Location: 00315 WEST ELEVENTH STREET
Applicant: JERRY MASTIN

Staff report: Ms. Marlow reviewed the staff final staff report for the Planning Commission. The applicant requests a Conditional Use permit to allow a second story on top of an existing legally non-conforming building, which is 3.62 feet from the rear setback line. The development qualifies for a front yard setback exception to reduce the 20-foot requirement to 10-feet. The applicant requests a Variance to reduce the front yard setback to 5-feet.

The CDD found that the proposed project's rear yard also requires a 5-foot setback, however the property does not qualify for the setback reduction, per provision (g), since provision (i) - that the topography, shape or size of the lot make construction a hardship – is not met.

Ms. Marlow reiterated the grounds for a Variance from the Land Use Code. The review considered the substandard lot sized as well as the width of the lot and the development pattern of the neighborhood. Staff concluded that there is an opportunity on the parcel to develop a single-family dwelling that meets the yard setbacks and also provides two on-site parking spaces. The property dimensions do not appear to present a hardship or practical difficulty for the applicant. While the subject property does not meet all of the requirements of the Land Use Code, it is certainly not an extraordinary situation unique to the property. Rather, the property is typical of what is found in the neighborhood.

Ms. Marlow concluded that the Variance as requested does not meet criteria 49.210.250(b) as the subject property does not present a unique physical feature or an extraordinary situation that would make compliance to Title 49 a hardship or practical difficulty.

Staff recommendation: that the Board of Adjustment adopt the staff analysis and the Director's findings which concludes that the grounds for Variances are not met and deny the requested front and rear yard Variance requests.

Mr. Vick asked if all of the other properties in the neighborhood met all setback standards as well? Ms. Marlow said that an argument could be made that a majority of the parcels in the area do not conform to either setback or parking requirements.

Mr. Allington referred to Mr. Kineen's comments earlier in the evening with regard to substandard lots in the Casey Shattuck area of Juneau. Was it true that all of the Land Use Code's setback requirements apply to the old town, where no setbacks were imagined when the buildings were constructed? Ms. Marlow said that was true. However, there are provisions to the standard setbacks and exceptions when dealing with atypical situations such as substandard lot size.

Mr. Allington asked if the applicant's problem was due in part to their request for a Variance when they could be asking for setback modifications? Ms. Marlow said that the applicant is asking for a Variance because the exceptions don't provide the relief that they are seeking.

Ms. Easterwood reported that a letter had just been received from a neighbor. The letter cites concerns over parking and what type of building would be placed on the property. She added that if the neighbor had seen the site plans, her concerns would be addressed. The project is a single-family home that includes on-site parking.

Public testimony:

Rich Kineen, is the architect who designed the house for Diane and Jerry Mastin. He displayed a model of the home and he referred commissioners to site plans in the packet. Mr. Kineen pointed out that the project met all six criteria needed for the Variance. He noted that the granting of a Variance would result in more benefits than detriments to the neighborhood. The building was designed to set back from the front property line in a manner that is uniform to its neighbors. The rear yard set back is also a benefit to the neighborhood in that parking and traffic strains will be relocated from the front of the home to the back alleyway. Mr. Kineen states that the Mastin's went to tremendous lengths to design a home that also doesn't interfere with their neighbors.

He urged the Board of Adjustment to find that keeping the homes aligned in the front yard was grounds enough for a Variance. As well, the back yard was a very private looking alley with several garages that sit between 5 feet to right on the property lines. Mr. Kineen asks that the applicant be allowed to build in a fashion that is consistent with the neighborhood.

Mr. Kendziorek asked about the three-dimensional model of the proposed home. Is it feasible to reconfigure the house so that it could fit onto the lot in conformance to side-yard setbacks? Mr. Kineen explained that Mr. Kendziorek's suggestion would result in the loss of the garage.

Mr. Bruce asked why the rear yard does not qualify for an exception? Ms. Marlow said that proposed development does not qualify for a rear yard setback reduction to 5-feet per CBJ 49.25.430(G) because provision (i) was not met. Provision (i) requires that the topography, shape or size of the lot make any construction a hardship. Staff maintains that there are other opportunities to site the garage on the property. For example, the garage can be located in front of the parking spaces on the site plan.

Mr. Kineen said that to accommodate staff’s suggestion, the project must be redesigned. Furthermore, compliance would result in the loss of amenities such as the yard. Taking the neighbor’s needs into consideration, relocating the garage would take up space that separates the properties. A very claustrophobic situation is the result.

Mr. Kineen explained that the lots in the Casey Shattuck neighborhood were platted in the 1930's while the zoning ordinances that apply to them came many years later. The setback ordinances simply don't apply lots that are as small as the typical-sized Casey Shattuck lot. Some ordinance adjustment is needed to fit the realities of these types of neighborhoods. This way, the design community can work with things that everyone wants in a home. The applicants want a nice home and they've gone to great lengths to design one that fits the character of the neighborhood. Mr. Kineen added that the topography and lot size certainly makes construction difficult.

Public testimony was closed.

 

Commission action:

MOTION: by Mr. Vick to grant VAR2001-00011noting that the criterion described is met.

Mr. Vick spoke in support of the motion because the neighborhood that the subject property is in is unique. Practically 100% of all the properties encroach upon of every setback that there is.

Mr. Kendziorek stated that the proposed structure was a wonderfully designed building that would be an asset in the neighborhood. However, the rules do not allow for an exception to the rear yard setback and the Planning Commission wasn’t able to identify a unique physical feature of the property.

Mr. Bruce argued that the other houses on the street encroach on the setback even farther. He understood that a front yard setback could be equal to the average of the three closest buildings. The applicant meets that requirement; it’s the rear yard setback that remains a problem.

Ms. Marlow clarified this issue. The front yard setback (on a substandard sized lot) shall be the average of such fewer number of buildings as may be within 500 feet, and provided further that in no event shall the required setback be less than half of the required 10-feet, whichever is greater. Therefore, the property didn’t qualify for a front yard setback reduction.

Mr. Allington indicated that the reason this lot is unique was because everybody else in the neighborhood has a de facto Variance. He states that Variances are permission to break the law that everybody else has to abide by. In this situation, nobody else in the neighborhood is abiding by zoning laws because the neighborhood was platted and developed 40 years before the zoning laws were created. Mr. Allington is very concerned that the Planning Commission might follow the strict letter of the law while completely missing the fact that this building won't encroach any further onto 11th Street than its neighbors.

Mr. Bruce argued that the Variance requirements are satisfied because the property owner does face a hardship and practical difficulties or there is a unique physical feature. This also seems to be an extraordinary situation even though it is not unique to the property.

Mr. Allington added that if the Variance were not granted, the Planning Commission would then create an extraordinary situation unique to the property. The Mastin property would be the only lot in the neighborhood without a Variance.

Mr. Kendziorek replied that a condition for a Variance does not include the fact that the property was platted before the zoning ordinances.

Ms. Gladziszewski agreed, that it wasn't good policy to allow for a property owner to be out of compliance to zoning laws simply because everyone else was. The ordinance was passed and for whatever reason it didn't except the Casey Shattuck neighborhood. Ms. Gladziszewski thought that perhaps this was done so that non-conforming properties could eventually be brought up to compliance. The rules are the rules.

Mr. Vick agreed that rules are good and standard lot sizes were established to deal with Juneau's growth in the 1970's. As well, setbacks were put in place to protect the town as it develops and grows today. However, there are identifiable locations in Juneau such as certain places in Douglas, the Casey Shattuck and Star Hill neighborhoods where property owners will never be able to accommodate our current setback laws. Mr. Vick suggested that the director of the Community Development Department address the unique zoning needs of these neighborhoods.

Mr. Bruce stated that the Planning Commission could make the Finding that there was an extraordinary situation in that the lot is small, long and narrow. As well, the design goes to great lengths to accommodate the features of the lot.

Mr. Kendziorek asked Mr. Bruce if he considered all of the long, narrow lots in the Casey Shattuck neighborhood to be extraordinary situations? Mr. Bruce said that they weren't all extraordinary because other lots were already built out to the limits of the property lines. If a replacement house were to be built on a lot, the Planning Commission must look at the design of the house on a case-by-case basis. If it tried to provide air, light and space in an otherwise crowded area that should be a consideration.

Mr. Bruce considered the extraordinary situation to be that there is an underdeveloped property that is long and narrow. The lot was created long before the ordinance was adopted and enforcement of the ordinance is not conducive to appropriate development of the property. Mr. Bruce added that the proposed development is in a style and manner that is consistent with existing nature of the neighborhood.

Mr. Allington pointed out that he once owned lot on Gold Street that was 50-foot by 50-foot. If 20-foot front and rear yard setbacks were to be imposed on a newly constructed home on that property, the footprint would be 10-foot by 30-foot.

Mr. Pusich thought that the two Variance requests tonight presented difficulties trying to arrive at affirmative grounds for a Variance. Some practicality has to be applied in these situations. If the Mastin’s Variance is not granted, a unique development is thereby created. What could result is something impractical that may not give adequate light, air and space and could ultimately be a detriment to the homeowner and the neighbor. Mr. Pusich supported the motion.

Roll call vote:

Yeas: Allington, Bavard, Bruce, Dybdahl, Gladziszewski, Pusich, Sanford, Vick

Nays: Kendziorek

The motion was approved 8 to 1. Next, Mr. Dybdahl asked the Planning Commission to address the Findings for the Variance.

Mr. Bruce suggested wording that stated: that a hardship and practical difficulty results from an extraordinary situation due to the size and shape of the lot. As well, there is a need to provide adequate corridors for air, space and light to the adjoining properties. Granting the Variance would encourage development that is in conformity with the nature and harmony of the Casey Shattuck neighborhood in terms of scale and appearance.

There was no objection and the Planning Commission adopted the Findings.

Mr. Dybdahl complimented the applicant's representative for cleverly addressing the issue earlier in the meeting. It raised valid points that should be addressed.

X. OTHER BUSINESS - none

XI. DIRECTOR'S REPORT

Ms. Easterwood announced that tonight's meeting was the last for CDD Planner Heather Marlow, who was leaving Juneau to attend graduate school. Members of the Planning Commission each complimented Ms. Marlow on her excellent work and they wished her well.

Ms. Easterwood updated the Planning Commission on several ongoing items. First, the Bicknell Asphalt Plant Appeal was withdrawn because the applicant abandoned the permit. He plans to operate the plant from the originally permitted site for the next year. Although Mr. Bicknell believes the site is too small to accommodate the operation, he hopes to establish a record of smooth running operations before re-applying for the site that he abandoned.

The golf course is not yet scheduled for a public hearing. Once CDD receives the submittals from the applicant, scheduling will proceed.

Finally, Ms. Easterwood commented that she agrees with Mr. Kineen’s suggestion. In fact, this has been discussed among CDD staff before. CDD notes that the D5 setback standards simply don’t apply to several older neighborhoods in town. She also wonders if enforcing the setbacks actually promotes a type of development that the neighborhoods don’t want.

Ms. Gladziszewski hoped that CDD could seriously address the setback requirements of the downtown neighborhoods. Each time the Variance issue arises from these neighborhoods, it was difficult process for everyone.

Mr. Vick asked what would be required to for CDD to address the setback standards in neighborhoods such as Casey Shattuck?

Ms. Easterwood recognizes that it is a problem and CDD will investigate a solution.

Mr. Kendziorek wondered if some new zones could be created in the non-conforming neighborhoods as a part of the upcoming Comprehensive Plan review? Ms. Easterwood said that would be the best solution.  

XII. REPORT OF REGULAR AND SPECIAL COMMITTEES - none

XIII. PLANNING COMMISSION QUESTIONS AND COMMENTS

Mr. Bavard raised the issue of how the Planning Commission conducts its public hearings. There are times when the Commission deals with a contentious issue that involves heavy public comment. Traditionally, the Commission only allows the applicant to testify one time, even though there are questions commissioners may have that only the applicant can answer. At other times, allegations or claims are made during public testimony that the applicant may need to respond to, or he may need to restate their case. Again, the applicant is allowed to testify only once.

How can the Planning Commission arrive at a way for an applicant to fairly restate their case? Mr. Bavard asked.

Mr. Dybdahl added that it’s difficult because those who oppose an issue feel that they ought to have the opportunity to rebut as well.

Mr. Allington suggested that the applicant should be made available to answer questions of the Planning Commission.

Mr. Bruce said that in the legal world, the party that has the burden of proof always has the opportunity for rebuttal. However, rebuttal is limited to issues raised in the opposing argument only. This seems to be a fair approach, he thought.

Ms. Easterwood said that the Planning Commission training sessions offered at APA conferences suggest that the applicant be allowed to testify twice. Specifically, the applicant presents the project at the beginning of the meeting and then at the end, the applicant comes forward to answer questions, address concerns, correct misinformation, etc. CDD could easily draft amended rules of order for the Planning Commission to consider.

Mr. Dybdahl supported the idea, but cautioned that they not allow reopening the hearing to rebuttals by all witnesses.

Mr. Pusich agreed with Mr. Dybdahl.

Mr. Kendziorek added that there are times when technical staff was in attendance. For example, staff from the Department of Fish and Game might also have specific items that they might want to address and they should be given the opportunity to rebut.

Mr. Dybdahl disagreed because there are times when a third of the audience is technical staff or an expert in some field. He didn’t support reopening public testimony.

Ms. Easterwood suggested in the alternative, that if there is missing information and someone in the audience can provide that, there should be a mechanism so that the Commission can call individuals forward.

Mr. Dybdahl said that the Planning Commission has always tried to be flexible in that regard. He wanted to be certain that they maintain control of the process.

Ms. Easterwood would draft new language and return to the Planning Commission with the results.  

XIV. ADJOURNMENT

Motion by Mr. Pusich to adjourn. Without objection, Mr. Dybdahl adjourned the meeting at 9:10 p.m.