CITY AND BOROUGH OF JUNEAU
April 24, 2001
Chair Johan Dybdahl called the regular meeting of the City and Borough of Juneau Planning Commission to order at 7:00 p.m., in the Assembly Chambers of City Hall.
I. ROLL CALL
Commissioners present: Roger Allington, Mike Bavard, Johan Dybdahl, Maria Gladziszewski, Marshal Kendziorek Mark Pusich, Merrill Sanford, Jody Vick
Commissioners absent: Dan Bruce
A quorum was present.
Staff present: Cheryl Easterwood, Director of Community Development; Oscar Graham, CDD Planning Supervisor; Sylvia Kreel, CDD Planner
Chair Dybdahl noted that a large number of people in attendance were concerned with the Malick appeal. He said that the Planning Commission would require additional information on various points and the applicant would also submit a revised application in response. Considering those factors, public testimony at this juncture would be immaterial. Chair Dybdahl explained that tonight's discussion of the Malick appeal would only involve giving direction to staff. He invited the public to remain in attendance, however.
II. APPROVAL OF MINUTES
March 13, 2001 - Regular Meeting and April 10, 2001 - Regular Meeting
Motion by Mr. Pusich to approve the Minutes of the March 13, 2001 - Regular Meeting and the April 10, 2001 - Regular Meeting. Ms. Gladziszewski advised that there were several grammatical changes to the April 10, 2001 Minutes that she would share with staff. Hearing no further comments or objection, it was so ordered.
III. PUBLIC PARTICIPATION ON NON-AGENDA ITEMS - None
IV. POSSIBLE RECONSIDERATION OF THE FOLLOWING ITEM - None
V. CONSENT AGENDA
Mr. Dybdahl announced that there were two 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.
Mr. Bavard disclosed that his employer, AEL&P and Franklin Dock, Enterprises were both subsidiaries of AERC. He did not consider there to be a conflict of interest, however.
MOTION - by Mr. Kendziorek to approve the Consent Agenda that included USE2001-00013 and USE2001-00014 (as listed below). There being no objection, it was so ordered.
An allowable use permit to place two antennas on an existing building, with a total height of 49 feet.
Location: 08725 MALLARD ST
Applicant: COOK CONSTRUCTION
Staff recommendation: That the Planning Commission adopt the director's analysis and findings and grant the requested allowable use permit. The permit would allow the development of 2 antennas with a total mounted height of 49-feet above grade.
A Conditional Use permit to allow a 26' x 40' boiler building near the Princess dock site to produce and supply steam to cruise ships.
Location: 00900 THANE RD
Applicant: FRANKLIN DOCK ENTERPRISES
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 25.5’ x 40’ boiler building at 900 Thane Road to produce and supply steam to cruise ships. The approval is subject to the following conditions:
VI. CONSIDERATION OF ORDINANCES AND RESOLUTIONS - None
VII. UNFINISHED BUSINESS - None
VIII. REGULAR AGENDA
Motion - by Mr. Vick to move USE2000-00040 from the Regular Agenda to Other Business.
Mr. Vick noted that since no action was to be taken with regard to USE2000-00040, that it would be appropriate to move it to Other Business.
Ms. Kreel suggested that even though directive action would not be taken on USE2000-00040, the Planning Commission had choices to make with regard to USE2000-00040. Ms. Easterwood advised that due to the large amount of public interest, the Agenda should be followed.
Mr. Vick withdrew the Motion.
Remand by the Assembly for further consideration of a Conditional Use permit for a commercial resort within the D-1 zoning district at North Tee Harbor.
Location: 19200 WILLIWAW WAY
Applicant: DANIEL MALICK & KRISTINE TROTT
Ms. Easterwood explained to the Planning Commission that the Assembly's decision included directions for the Commission. The Assembly decision states:
"That the Planning Commission should revisit Findings 4, 5 and 6 for the purpose of determining whether the record, as augmented in this appeal, supports a finding that it is more probable than not that the project meets the standards" in the Land Use Code.
Ms. Easterwood clarified that when discussion focuses "on the record," that meant all of the material before the Planning Commission when the Conditional Use permit was originally heard. As well, the applicant augmented the record during the appeal. With the remand, the Assembly asks the Planning Commission to look again at the record and at the additional material to determine if there is now enough information to proceed. The sufficiency of the record is the question of the evening.
Staff report: Ms. Kreel stated that the request for a Conditional Use permit has been remanded by the Assembly for further consideration. The Assembly asks the Planning Commission to revisit Findings 4, 5 and 6 to determine if the record had been sufficiently augmented and the appeal supports the finding that it is more probable than not that the project meets the standards. Ms. Kreel reported that the Assembly's issue with the Planning Commission's denial lay with the fact that there was insufficient evidence to support the findings.
With regard to Finding No. 4, the Planning Commission found that inadequate sight distance coupled with the steep and narrow stretches and blind spots along the access drive materially endangered the public health and safety. The Assembly determined that there was not sufficient evidence to support such a finding.
The Assembly also determined that the Planning Commission did not explain why the proposed resort was not in harmony with the neighborhood. Therefore, the Assembly found insufficient evidence to support the Commission's Finding No. 5. As well, the word "uncertainty" was used in the language for Finding No. 5. The Assembly indicated that word was vague. Who was uncertain and what did the uncertainty encompass? The Assembly also indicated that something greater than a "potential" for impact be present to deny on account of Finding No. 5.
The Assembly pointed out deficiencies with Finding No. 6 as well. The Planning Commission found that the proposed scale of the resort project did not meet the standard of "small scale." The Planning Commission did not clarify what it considered "small scale" nor did they indicate how this project was not in conformance with "small scale."
In remanding the project back to the Planning Commission, the Assembly directed the Commission to:
If the evidence is not sufficient, then the Commission has to decide if:
Ms. Kreel next explained how the record was augmented during the appeal. The applicant addressed the safety of Williwaw Way by discussing sight distance and making comparisons to other access roads. The applicant also submitted photographic exhibits to support his assertion. The applicant also submitted information regarding different CBJ regulations that deal with camping. The record was further augmented by the addition of a map that shows how the applicant views his neighborhood and another that showed the tent sites relocated to a more central site on the property. The applicant submitted photos of other properties to rebut the question of scale of development. Finally, the applicant submitted seven Conditions that he thought should be applied to the project. The applicant also showed a map to the Assembly
Ms. Kreel suggested that the Planning Commission direct staff to engage in discussions with CBJ 's assessor to get more input on how the proposed resort will affect property value. She proposed that the issue of neighborhood harmony could be quantified by looking at the impacts of the proposed development versus the impacts that are generated by the resident's and their use of the area. The two can be compared and quantified, Ms. Kreel stated. Staff would also like to do more work that focuses on traffic patterns on Cohen Drive. Staff would also like to further define the term, "small scale." Finally, the Assembly rejected a vague statement made by the Planning Commission during their review. It was stated that "uncertainties exist." Ms. Kreel recommended that should uncertainties be noted, that they be further defined.
Staff recommendation: That the Planning Commission adopt staff’s analysis and find that the record, as augmented in the appeal, is not sufficient to support a finding that it is more probable than not that the project meets standard CBJ 49.15.330 (f)(1–3). However, the Planning Commission finds that this evidence could reasonably be expected at a rehearing of the case.
To this end, staff recommends that the Planning Commission direct the staff to provide, additional information regarding the following:
Additionally, staff recommends that the Planning Commission direct the applicant to provide additional information regarding the following:
Mr. Allington asked if the term, "survey" showing all that AASHTO standards are met refers to a walk-through or a survey preformed by a licensed surveyor in the State of Alaska? Ms. Kreel indicated that the survey must be preformed a licensed surveyor.
Mr. Kendziorek observed that the remand includes some modifications such as the relocation of the campsites and increasing the number of large gatherings. Since the terms of the proposal had substantially changed, why wasn't this presented as a new application? Ms. Kreel stated that the Assembly specifically remanded the application to the Planning Commission and they must act on that. The Assembly could have also approved or denied the Conditional Use permit. Rather, they remanded it.
Ms. Easterwood clarified that if the Planning Commission decides that the record is not adequate and opts for a rehearing, the applicant is free to submit a revised proposal that incorporates changes in response to public testimony.
Mr. Pusich and Mr. Bavard agreed that the new evidence submitted during the appeal would be valuable for the Planning Commission as they review the proposal.
Ms. Kreel said that even though the original application was significantly modified and may even warrant a new application, the Planning Commission must act on the remanded application. The Commission could find that a lack of evidence is due to an incomplete application and therefore warrants denial.
Ms. Gladziszewski summarized that because of the new information, essentially a new application is now before the Planning Commission, but it isn't being called a new application.
Mr. Dybdahl added that the public would have the opportunity to comment on the new information as well.
Motion: by Mr. Bavard that the Planning Commission accept staff's background, analysis and recommendations with regard to Findings 4, 5 and 6 and find that the evidence could be reasonably expected to be provided at a rehearing of the case.
Mr. Kendziorek suggested that more information with regard to the easement across the parklands for the Williwaw Way roadway. He also noted a reference to an appraisal and he asked to see that information as well.
Mr. Bavard accepted the two points as a friendly amendment to his Motion.
Ms. Gladziszewski noted that factors of neighborhood harmony are limited to traffic only in the staff report. She suggested an amendment directing staff to consider additional factors that add up to neighborhood harmony.
Mr. Pusich recalled discussions of a revised site plan and he wanted to see that document. As well, he suggested clarification as to the survey, stipulating that a registered land surveyor will perform a topographic or similar survey.
Mr. Allington noted that the term, "roadway" be defined as Williwaw Way and not Cohen Drive or anyone else's driveway.
Ms. Easterwood added concerns as to the limiting nature of the list. She suggested language that states, "The Planning Commission directs staff to provide at minimum, the following information:"
Mr. Allington requested all of the data relative to the easement. He was interested in under what Conditions was it given and whether or not the Conditions have been complied with?
Ms. Kreel stated that the easement has not been finalized. She could provide information, including minutes that discussed the background for the easement, but the actual language has not been drafted. Further, the easement is not part of the Conditional Use permit.
Ms. Easterwood said that the decision requires the CBJ attorney to provide the Planning Commission some information with regard to liability and the easement.
Mr. Bavard accepted the suggestions as friendly amendments. Mr. Dybdahl announced that there was a complete motion and he asked for a vote.
Roll call vote:
Yeas: Allington, Bavard, Dybdahl, Gladziszewski, Kendziorek, Pusich, Sanford, Vick
Chair Dybdahl called for a short recess before adjourning as the Planning Commission at 7:40 p.m. Following the break, Chair Dybdahl reconvened the group as the Board of Adjustment.
A variance to allow a 16' addition within 7.5 feet of side yard where 15 feet is required to allow construction of a fully accessible bathroom/ bedroom area.
Location: 09325 VIEW DR
Applicant: ROMER DERR
Staff report: Mr. Graham reviewed the details of the Variance request for the Commissioners. The applicant requests a Variance to construct a 16 foot by 32 foot addition (512 square feet) to an existing single family residence to provide a fully accessible handicapped bedroom and bathroom for Mr. Derr's use. The addition will extend the existing single story gabled roofline and expand the existing residence to within 7.5 feet of the eastern property line. The addition will also include an access ramp along the northern portion of the addition. The D-1 Zoning designation requires side yard setbacks of 15 feet. While the western side yard setback will remain at 51 feet, if the Variance is authorized, the eastern side yard setback would be reduced to 7.5 feet of the property line.
This Variance request proved to be a very unique case for CDD staff, Mr. Graham reports. The applicant made a compelling case with regard to satisfying the criteria for a Variance Nos. 1 - 6. Mr. Graham noted that authorizing this Variance would provide substantial relief to the owner; that it would generally further the intent of the Land Use Code; that the Code could be observed without compromising public welfare and safety; that authorizing the Variance would not injure nearby properties; that the Variance is consistent with the primary use allowed in the district; that compliance with the existing standard of 15 feet would unreasonably prevent the owner from using the property for a permissible use and granting the Variance would result in more benefits than detriments.
While the criteria was easily met, staff could not find that the prerequisite for the Variance could be met:
In this case, the hardship was based on the applicant's physical condition and not the property's features. While reviewing the request, staff looked to the Americans With Disabilities Act (ADA) requirements and found that they do not apply to privately owned dwellings. However, Mr. Graham noted that the proposal is generally consistent with ADA accessibility standards. CDD staff also inquired of the American Planning Association (APA)’s Planning Advisory Service for an opinion on the applicability of the Variance criteria relative to this proposal. The APA suggested that the approval would be defensible and that it is generally consistent with the intended use of the hardship clause; however, there was no legal precedent to support this.
Due to the rarity of the proposal, and the fact that the Land Use Code does not address this type of situation, CDD staff discussed the possibility of amending the Code based upon a demonstrated need of the applicant. As a result, staff offers the Planning Commission a mixed recommendation that while the request meets the criteria for a Variance it doesn’t meet the prerequisite that the hardship be based on special circumstances associated with the parcel of property itself.
Staff recommendation: That the Board of Adjustment adopt the staff analysis and director’s findings, and deny the requested variance.
Mr. Kendziorek asked if the request was for an accessory apartment rather than an addition, would the Planning Commission be involved? Mr. Graham stated that if the proposed development encroached into the sideyard setback, they would be involved.
Ms. Gladziszewski asked if staff had raised this issue with the CBJ Law Department. Mr. Graham reported that the Law Department noted that the problem was very interesting and they did not offer an immediate opinion.
Mr. Bavard asked if the applicant would come forward to address the Planning Commission.
Romer Derr, 9325 View Drive, is the applicant. Mr. Derr reports that he's had rheumatoid arthritis since he was 19 years old. As he’s aged, the problems have compounded and he foresees the eventual need of a fully accessible home. Mr. Derr built his current home and plans to live out his life there. However, to do so, Mr. Derr must build an accessible bedroom addition and it’s not practical to build it in any other location. He reports that the affected neighbors had no problem with the encroachment. He closed by saying unequivocally, he must have the addition and he hopes the Planning Commission will grant the Variance.
Mr. Kendziorek asked the applicant to explain why the addition could not be placed anywhere else. Mr. Derr said that situating the bedroom and bathroom with wide enough doors directly off of the kitchen wasn’t practical. The object was to keep the rest of the home livable.
Mr. Kendziorek then asked the applicant to describe any specific and unique physical features that might affect the placement of an addition. Mr. Derr indicated that the lot was reasonably flat with an elevated hill on the east side. The rise of the hill continues to the neighbor’s property. In front of the right side of the house was a moss-covered outcrop of glacial bedrock. ? Mr. Derr said that to locating the addition on the north side of the home would require a substantial amount of fill. This was due to the proximity to the river’s edge.
Mr. Pusich asked if flooding were a possibility? Mr. Derr said that his property was about 8-feet above the 100-year flood plane.
Ms. Easterwood raised a point that Mr. Bruce stated in the April 10, 2001 Regular Meeting of the Planning Commission. Mr. Bruce proposed that CDD staff might be been reading the prerequisite incorrectly. He pointed out that it could be read several ways. Ms. Easterwood discussed this extensively with John Hartle of the CBJ Law Department. Mr. Hartle didn't think that the Planning Commission was reading the hardship clause incorrectly, but he noted that it was not clearly written and there wasn’t a clear right or wrong way to read the statement. The pivotal question is:
It is the Planning Commission’s call on how this prerequisite is read. If Mr. Hartle’s comments are considered in concert with the APA’s agreement that a review should take into account the applicant's hardships (and not just the monetary hardships), a favorable decision could be reached. Finally, Ms. Easterwood noted that Mr. Graham’s report called out aspects of the application that were extraordinary.
Mr. Bavard concurred, adding that if an individual is forced to move from their home because they are prevented from making it handicap accessible then that is as bad as it gets. As well, the addition must be fit into the footprint of the house. Mr. Bavard argued that this was the spirit of the ADA and Mr. Derr indeed has an extraordinary situation.
Mr. Kendziorek agreed with Mr. Bavard but he was concerned that the hardship cited in Mr. Derr's request did not apply to the parcel of property or structure.
Mr. Bavard suggested that the hardship does affect the property if denial forces the applicant to move from his property.
Ms. Gladziszewski asked for staff to confirm that the hardship statement in the staff report was taken verbatim from the Code. Staff agreed that it was verbatim, but it did appear as a single sentence, without numerical points. She read:
"where hardship and practical difficulties resulting from an extraordinary situation or unique physical features affecting only a specific parcel of property or structures lawfully existing thereon, rendering it
difficult to carry out the provisions of Title 49."
Ms. Easterwood clarified that Mr. Hartle stated the clause could be read two ways. First, how Ms. Gladziszewski read the clause or:
Test A: Where hardship and practical difficulties resulting from an extraordinary situation render it difficult.
Test B: Where hardship and practical difficulties resulting from a unique physical feature affecting only a certain piece of property or structure.
Ms. Gladziszewski said that a logical argument could be made to read the prerequisite clause as Ms. Easterwood and Mr. Hartle suggested.
Mr. Kendziorek asked if the Planning Commission would be setting a precedent in how it interprets this clause from the Land Use Code.
Mr. Pusich said that each Variance is considered on its own merits. Because this clause is being looked at differently, he doubted whether or not a Variances down the road would be treated differently than today.
Mr. Kendziorek was concerned that if the Planning Commission chooses to interpret the Land Use Code in a new way, is the Commission obligating itself to this interpretation of the Code from this day forward?
Mr. Allington reminded the Commission that Mr. Derr’s situation is truly unique and that the Land Use Code and case law simply did not address it.
Public testimony was closed and Mr. Dybdahl called for a Motion.
Motion: by Mr. Vick, that the Planning Commission grant VAR2001-00012 finding that an extraordinary situation renders it difficult for the applicant not to be granted the Variance.
Mr. Bavard clarified the Motion, stating that the Planning Commission can act on the Variance request because there are hardship and practical difficulties resulting from an extraordinary situation rendering it difficult to carry out the provision of Title 49.
Mr. Kendziorek suggested that the Findings note that the hardship and practical difficulties result from the physical disability of the applicant and their need for an ADA compliant addition is also stated in the Motion.
Mr. Vick accepted that addition.
Ms. Gladziszewski also suggested that the ADA and the APA’s comments regarding the intended use of the hardship clause be cited in the Motion so that it is clear that the Planning Commission is basing their action on Title 49, the ADA and the opinion of the American Planning Association.
Mr. Graham asked for the Commission to clarify its Motion.
Mr. Vick restated the Motion: where hardship and practical difficulties which result from extraordinary situation render it difficult to carry out the provision of Title 49, the Board of Adjustment may grant a Variance.
Referring to Mr. Kendziorek’s amendment, Mr. Dybdahl was reluctant to cite ‘personal disability.’ Citing ADA compliance into the Findings was fine, however, mentioning a personal disability was equal to making a doctor’s judgment. Additionally, Mr. Derr’s disabled status was something that he was planning for and it didn't necessarily exist today.
Mr. Kendziorek withdrew his friendly amendment and restated it to say: ADA compliance creates a practical difficulty in this extraordinary situation.
Mr. Graham cautioned the Commission from stating compliance with the ADA, which could mean that Mr. Derr would have to comply with all ADA dimensional standards as well.
Mr. Dybdahl stated that all the Commission needed to address in the Findings was to add a statement and a definition under Title 49. Then, he expected an additional Motion to adopt staff’s Findings and Recommendations 1-6.
Mr. Kendziorek said that in order to grant this Variance, the Planning Commission needed evidence to support a Finding. He argued that the Planning Commission must state why they make a Finding.
Ms. Easterwood stated that all elements of the Findings are included in the staff report. She suggested a short break for staff to craft language for the Finding to consider.
Mr. Pusich clarified that the Planning Commission found that the prerequisite requirements for the Variance had been met. Staff has also found that criteria 1 through 6 are acceptable. Mr. Pusich questioned the necessity of making Findings on a prerequisite.
Mr. Dybdahl agreed and called for a vote on the Motion:
Roll Call Vote:
Yeas: Allington, Bavard, Dybdahl, Gladziszewski, Kendziorek, Pusich, Sanford, Vick
The Motion granting VAR2001-00012 and finding that an extraordinary situation renders it difficult for the applicant not to be granted the Variance passed unanimously. Next, Mr. Dybdahl called for a Motion to accept staff’s findings and recommendations.
Motion: by Mr. Pusich that the Planning Commission accept staff’s analysis and Variance criteria findings 1 through 6, as presented.
Ms. Easterwood referred to page 7 of the staff report where the director’s findings which include elements 1, 2 and 3. She suggested that the Planning Commission strike the second paragraph of number 3 and revise the second half of the first paragraph to comport with the Planning Commission’s previous discussion.
Chair Dybdahl noted that there was no objection, and it was so ordered.
The Board of Adjustment adjourned and reconvened the Planning Commission at
An appeal of the Director’s decision.
Director's Report: Ms. Easterwood reports that four neighbors have joined together to appeal her decision regarding the construction of a second dwelling unit on a D-18 lot. The project site is on Lot 3A, Block 25 of the Douglas Townsite.
Ms. Easterwood explained the process. The Planning Commission is directed to accept the appeals for anything other than routine or minor matters. Ms. Easterwood suggested that this situation is not minor and therefore, she recommended that the appeal be accepted and scheduled for the next Planning Commission meeting on May 8, 2001.
Mr. Bavard asked if the construction was allowed to continue while the appeal is pending. Ms. Easterwood clarified that the construction on the project has not begun but regardless, an appeal does not stay work on the project. The applicant is aware of the appeal and he understands that he is responsible for any risks associated with construction prior to resolution of the appeal.
Planning Commission action:
Motion: by Mr. Kendziorek that the Planning Commission accept the appeal, INQ2001-00007 to be heard at the discretion of the Director.
There was no objection and it was so ordered.
Ms. Easterwood stated that the appeal would be heard on May 8, 2001.
XIII. PLANNING COMMISSION COMMENTS AND QUESTIONS
It was noted that Commissioners all received a copy of the Areawide Transportation Plan. Mr. Pusich asked if there would be an opportunity for the Planning Commission to comment as a body?
Mr. Allington said that the Plan was approved for public circulation and for comment but he didn't know what the next step was for the Transportation Study. Was it to be reviewed by the Planning Commission before returning to the Transportation Steering Committee?
Ms. Easterwood said there wasn't a prescribed policy, but typically it would be reviewed by the Planning Commission following public review.
Mr. Allington also commented on a My Turn column written by Chris Morrow regarding the Areawide Transportation Plan that appeared in the April 23, 2001 issue of the Juneau Empire.
Mr. Bavard asked about the direction of the Fee In Lieu Of and the Residential Parking Zones. It seemed to Mr. Bavard that the Fee In Lieu Of plan was much more developed than the other. How would CDD proceed? Ms. Easterwood agreed that the Fee In Lieu Of plan has received much more attention and committee work than the other plan. The Residential Parking Zone is at an introductory, work-session stage, she reports.
Mr. Bavard asked if the next step would be a public hearing, or was there another work session planned for the Residential Parking Zone? If one plan were more developed, couldn't the Planning Commission proceed?
Mr. Dybdahl recalled that the Fee In Lieu plan was ready for a public hearing and could be implemented soon. The Residential Parking Zones plan was simply not ready for a public hearing.
Mr. Pusich thought that it would be a shame to hold one plan back because both plans were not ready for public hearings.
Mr. Sanford suggested that the federal and state governments should be involved in the developments regarding the Residential Parking Zone plan that is in the works.
There being no other business and no objection Chair Dybdahl adjourned the meeting at 8:30 p.m.