CITY AND BOROUGH OF JUNEAU
May 8, 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, Dan Bruce, Johan Dybdahl, Maria Gladziszewski, Marshal Kendziorek Mark Pusich, Merrill Sanford
Commissioners absent: Jody Vick
A quorum was present.
Staff present: Cheryl Easterwood, Director of Community Development; Tim Maguire, CDD Principal Planner
II. APPROVAL OF MINUTES
April 24, 2001 - Regular Meeting
Motion by Mr. Kendziorek to approve the minutes of the regular meeting, as corrected. Hearing no objection, it was so ordered.
III. PUBLIC PARTICIPATION ON NON-AGENDA ITEMS - None
V. CONSENT AGENDA
Mr. Dybdahl announced that there was one item on the Consent Agenda and he inquired if there was anyone from the public who wished to testify. No one stepped forward, and there were no questions form the commissioners.
MOTION - by Mr. Allington, to approve the Consent Agenda that included USE2001-00016, as listed below. No objections were noted and the items from the Consent Agenda was approved.
An Allowable Use permit to build four airplane hangars totaling 9,600 square feet. The proposed hangars will be attached to 4 existing hangars.
Location: JUNEAU INTL AIRPORT
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 9,600 square feet of airplane hangar space.
VI. CONSIDERATION OF ORDINANCES AND RESOLUTIONS - None
VII. UNFINISHED BUSINESS - None
VIII. REGULAR AGENDA
Conditional Use permit to operate a soil recycling facility at 1725 Anka Street
Location: 01725 ANKA ST
Applicant: UNITED SOIL RECYCLING INC
Staff report: Tim Maguire reviewed the staff report for the Planning Commission. Mr. Maguire stated that the applicant’s operation had been previously permitted on May 25, 1999. The Conditional Use permit authorized soil remediation activities for over a year. The operation was useful in that contaminated sites throughout the City and Borough were served. The facility has operated for over a year and the applicant will continue work based upon the demand for this type of services. Several modifications from the original operation relative to the storage of contaminants and drainage are proposed with this application. As well, the storage area for the untreated soils has been upgraded to prevent seepage. A sump pump has also been added to supplement the covered storage facility. New operation plans include a $250,000 bond to the Department of Environmental Conservation (DEC) for bonding should site restoration become necessary.
The previous operation raised concerns with DEC after a site inspection revealed that untreated runoff was entering Lemon Creek. Berming, silt fencing and a settling pond were added to resolve that problem. Fugitive dust was also an issue. Dust develops into a problem after treated soils are dried out and are blown about with the wind. The applicant proposes to solve the problem by watering the soils, when necessary.
In the past, noise pollution has not been an issue for the site. However, during the review, the issue was raised because noise associated with a crusher operation on the same parcel, combined with noise from the soil recycling operation was mentioned. The Planning Commission may discourage excessive noise by conditioning that no more than 65 dBa during the day and 55 dBa at night is allowed. Mr. Maguire noted that such a Condition has been added and the applicant is agreeable and willing to mitigate if necessary.
Staff recommendation: that the Planning Commission adopt the Director's findings and grant the requested Conditional Use permit. The permit would allow the continuation of temporary soil recycling operation on Lot 2A, Horn Subdivision. The approval is subject to the following conditions:
Mr. Maguire noted that Condition No. 3 had been revised to state:
Mr. Pusich noticed that Condition No. 2 referred to hours of operation but made no mention to days of the week. Staff indicated that no restriction of daily operation was made because the last Conditional Use permit made no restriction. However, other operations in the area are restricted from working Sunday.
Mr. Pusich asked what the current noise levels at the property lines were. Mr. Maguire said informal noise readings taken with the burner operating and a reading of below 70 dBas at the property line were recorded. A reading was taken during the actual construction of a cell recorded below 65 dBas at the property line and during the daytime. An on-site, daytime reading of 82 dBa was recorded. An evening reading was not obtained. If the applicant cannot meet the dBa guidelines, the applicant was willing to employ mitigation measures.
Mr. Pusich referred to DEC's Soil Remediation and Facilities Operation Plan and noted that the applicant's permit is valid through May 31, 2001, unless extended. Mr. Maguire did not know if an extension had been requested. However, the application sought a Conditional Use permit valid for two years.
Mr. Bavard asked why the applicant's operations are limited to 6:00 p.m. since they were located in an industrial zoned area. Mr. Maguire explained because the proximity to neighborhood areas across Lemon Creek, permits in the area generally are limited in terms of hours of operation. As well, the applicant had no problem with the limitations.
Mr. Kendziorek noted that the noise level at the property line was recorded at 70 dBa. Did that mean the level was above 65 dBA, which is the maximum level authorized by Condition No. 3? Mr. Maguire explained that the noise meter was inexact and the only valid reading was "below 70 dBa".
Ms. Gladziszewski asked if all the issues noted in the Department of Fish and Game's letter had been addressed such as long-term percolation of soil in the area, the settling pond, regular maintenance, sediment testing, location of sediment disposal, etc. Mr. Maguire stated that CDD addressed the pond size issue. CDD did not address the issue of contaminants left over in sediment disposal. DEC periodically tests run-off quality to verify that it does not contain contaminants.
Jim Shoemaker, of Small Business Solutions, is the manager of the soil remediation facility. Mr. Shoemaker’s testimony addressed the areas of concern. The sound barrier would not be a problem, Mr. Shoemaker predicted. Based upon dBa readings from a similar facility operating in Portland, OR, Mr. Shoemaker anticipated the sound to be below 65 dBa from five feet away. Another issue deals with the soil itself. Mr. Shoemaker reports that soil testing is periodically required by a third party. As well, the applicant has implemented solutions to the dust problem. He believes the simplest and most effective solution may be limiting operations on windy days.
Mr. Kendziorek asked the applicant about the expiration of their permit with DEC. Mr. Shoemaker said they were in the process of extending the permit for explained that when the original permit was applied for, they expected only one year of operations in Juneau. As it turned out, the applicant is now purchasing the property and maintaining operation indefinitely. They draw plenty of business both locally and from the outlying areas.
Chair Dybdahl closed public testimony.
Motion: by Mr. Kendziorek, that the Planning Commission accept staff's analysis, findings and recommendations, including revised Condition No. 3 and approve USE2001-00015.
Mr. Kendziorek also proposed Condition No. 6 to state: Control the soils as necessary to prevent fugitive dust.
There was no objection to the Motion, and USE2001-00015 was approved.
IX. BOARD OF ADJUSTMENT None
X. OTHER BUSINESS –
Appeal of director's decision regarding density determination to allow 2 detached dwellings on one lot in a D-18 zone.
Staff report: Ms. Easterwood opened the discussion by reviewing the procedures of appeal for the Planning Commission. Generally, the Commission's appeal procedure is not as complex as that of the Assembly, but it does follow the model. Because the issue is less complex, each side will be allocated 20 minutes for oral argument. Appeal procedures do not allow for witnesses and each side is represented by a spokesperson. In the case of INQ2001-00007, Tim Maguire will speak for the Director. After the conclusion of oral argument, the Commission may deliberate in private or in public. Ms. Easterwood noted that the Open Meetings Act does not pertain to this type of decision. Historically, the Planning Commission has deliberated in public, in Chambers while the Assembly always deliberates in private. Following deliberations, the Commission makes a motion stating that the appeal is granted and then the motion maker speaks in support or in opposition.
Mr. Allington did not recall whether the Commission decided to hear the appeal on the record or de novo.
Mr. Pusich didn't think that that was discussed, although he assumed the appeal would be heard on the record.
Mr. Bavard asked staff to clarify who the speakers will be during the proceeding. Ms. Easterwood reiterated that public testimony would not be taken and one person would speak for each side.
Mr. Kendziorek disclosed that a neighbor and interested party in the appeal also happens to be his co-worker. Mr. Kendziorek reported that the two were careful that no ex parte communications occurred and they only discussed the time for the hearing.
Mr. Allington pointed out that the burden of proof was on the appellant.
Chair Dybdahl recognized the appellant, who had procedural question. The gentleman noted that procedure was not clearly stated to the appellants, and they had planned for two parties to address the Commission. He requested that they be accommodated, noting that their presentation could easily fit the 20-minute time limit.
Ms. Easterwood reported that she sent one appellant a communication that explained the usual procedure. She added that unlike Assembly appeals, this matter did not have a Pre-hearing Conference where the parties agreed to each aspect of the hearing. If the Commission wished to accommodate the appellant, they may. Adjusting the time limits or allowing more than one speaker was also within the discretion of the Commission.
Mr. Bruce asked if the appeal would be heard de novo or on the record. He noted that there had been submittals since the April 24, 2001 meeting where the appeal was accepted. These items could not be considered unless the appeal was heard de novo.
Ms. Gladziszewski did not think that the Commission had considered this issue thus far.
Motion: by Mr. Allington that the Planning Commission hear the appeal on the record.
Mr. Kendziorek asked for a clear explanation for the legal terms: on the record and a hearing de novo.
Mr. Bruce stated that a hearing "on the record" means only the evidence that the Director had at the time of her decision would be considered. Nothing else is considered. As well, the standard for review is: was there substantial evidence to support her decision. Whereas, a hearing de novo indicates that more information will be considered and the burden shifts to a preponderance of the evidence.
Chair Dybdahl said that resolving the conflict over the Director's interpretation of the Land Use Code was the goal and if achieving that result meant more information is considered, so be it.
Mr. Kendziorek supported a hearing de novo.
Mr. Allington made the motion for a hearing on the record because there appears to be a conflict in Title 49. In his analysis, Mr. Allington did not see how any new information would clarify which part of Title 49 would take precedence over another. It was a matter of interpretation for the Commission to decide.
Mr. Bruce agreed with Mr. Allington and restated the issue: did the Director abuse her discretion when she interpreted a question of law? The facts are laid out, the applicant wants two separate buildings on a D-18 lot and the appellants disagree that this is allowed under the Code. As such, no new evidence is needed.
Roll call vote:
Yeas: Allington, Bavard, Bruce, Dybdahl, Pusich, Sanford
Nays: Gladziszewski, Kendziorek
Chair Dybdahl announced that the appeal would be heard on the record and he next addressed whether more than two individuals could speak for each party.
Mr. Bavard supported the notion that more than two people could speak; however, he endorsed limiting their presentation to 20 minutes.
Mr. Bruce agreed that multiple parties were okay but he hoped they would not duplicate the same argument. He also wanted the argument to be limited to 20 minutes.
Chair Dybdahl noted that the Commission was in agreement: more than two people could speak for the parties with each side allocated a total of 20 minutes for oral argument and questions.
Ms. Easterwood concluded her briefing of procedure. Typically, the appellant speaks first but they may also reserve time for follow-up comments to the Director's argument. She added that Tim Maguire would represent the Director in the appeal. Both Ms. Easterwood and Mr. Maguire withdrew to the audience and the appellant came forward to state their case.
Argument of the Appellant
Greg Fisk, PO Box 20628, Juneau, introduced the parties who have joined together to appeal the Director's decision: in addition to himself, Jim Kelly, Dawn Walsh and John Symons were also in attendance. As well, the appellants contracted with John Cooper, to represent the neighbors before the Planning Commission. Mr. Fisk states their support of the Glidman's pursuit of construction that is compatible with the neighborhood, but they opposed this particular project as it is out of character for the neighborhood.
John Cooper, states that the Table of Permissible Uses is the entry point for Title 49 to determine whether a specific use is allowable. In the question under appeal is: are two detached dwellings on a single lot allowable? He notes that during the review, CDD staff was required to answer in the affirmative if the proposed use was allowed in the Table of Permissible Uses. Clearly, this is evidence that the drafters intended the Table to be the entry point. Mr. Cooper suggests that staff has a conflict because they do not accept the Table as the entry point. He cites an analogous situation where the same question arose on a D-5 lot. Since the Table of Permissible Uses did not allow two separate dwellings on a single lot, the developer was forced to subdivide the lot. In almost all cases, except the case under appeal, the Table is the gospel for staff.
Mr. Cooper cites staff's argument that that 1987 revision of the Land Use Code contains an error of omission. Unfortunately, under common law, the plain English reading of the text is favored. If an interpretation can be identified that does not result in a conflict, then no conflict exists. As well, staff maintains that §49.25.520 was added to the Land Use Code during a major rewrite in 1987. The section was added because the previous code did not address the question of detached single family dwellings in the multifamily districts. Staff also states that multifamily districts were not discussed in the code revision. Mr. Cooper argues that staff cannot have it both ways. Furthermore, there are procedures in place for the correction of errors, depending on their nature. If it is clear that this was an editorial error, the CBJ attorney is able to correct it. If this was an oversight or an omission, staff is also able to raise it with the Planning Commission. Together the Commission and the Assembly could correct the omission. However, 14 years have passed and the alleged error has never been corrected. Mr. Cooper finds that compelling.
Mr. Cooper states staff's assertion that the changes in the 1987 Code revision were done to add use category 1 and it was not intended to exclude the use in multifamily zoned districts. Mr. Cooper disagrees that supposed intent supercedes what was actually written. Law is based upon what is written. If corrections are to be made, there is a process to follow. If a proposed use comes similar to an item in the Table of Permissible Uses so that it may be treated the same as that item it must come before the Planning Commission for a decision during a public hearing. Mr. Cooper argues that because this process was not followed, the Director abused her power. Since the decision is based on an unwritten notion, the decision is also arbitrary and capricious. Mr. Cooper asks that the Commission reverse the decision of the Director.
Mr. Bruce understood that the Table of Permissible Uses in part sets forth allowable density requirements in zoning parcels. Mr. Cooper said that was only one aspect of the Table but not the only object or the controlling object. Mr. Bruce notes the appellant's argument that there is no logical basis for extending the category 1.120 into the D-5, D-10, D-15 zones. But if D-1 and RR were the minimum density zones where separate, single family detached dwellings were allowed, it seemed logical that they are allowed in a higher density zone districts as well. Mr. Cooper argued that the plain English reading of the Table of Permissible Uses and its applicable sections must be adhered to. §49.25.520 requires in the D-1 and D-3 zones, that each lot that has a separate, single family, detached dwelling also has a lot size that is at least twice the minimum required square footage for that zoning district. Mr. Cooper argues that that logic should be uniformly applied across the zoning districts for Mr. Bruce's point to be persuasive. Therefore, the omission was intentional and deliberate by the drafters.
Mr. Fisk noted that the question of how many dwelling units was not at issue, but rather how the Director arrived at her decision. While a triplex is easily allowed, for a single family dwelling, a larger lot size is required. In the case of Lot 3A, Block 25, a larger lot is not the reality.
In conclusion, Mr. Fisk highlights that the Director's decision rests on the following points:
Argument of the Director
Daniel Glidman, is the property owner and developer of the proposed project. He stepped forward to read excerpts of his letter that he submitted prior to the hearing, into the record.
Chairman Dybdahl called a point of order. Ms. Easterwood explained that it is appropriate for the person whose project is under appeal to speak in support of their case. Mr. Glidman's comments would be attributed to the Director's time allotment.
Mr. Kendziorek questioned the appropriateness of reading a letter that was just received into the record. Wasn’t that contrary to hearing the appeal on the record? Chair Dybdahl noted that the party was simply engaging in oral argument.
Mr. Glidman began by stating that he and his wife sought to build a lifelong home on Second Street in Douglas. He also disagreed with the appellant's characterization that his neighborhood was filled single family homes. On the contrary, lots filled with multiple singe family homes, apartments, lots with single family homes and even commercial enterprises dotted Second Street. His plan provides off-street parking and it is compatible with the diverse environment of Second Street.
Tim Maguire states that the single issue under appeal is whether two detached single family dwellings can be located on the same lot in a multifamily zoning district. The Director determined that the use is allowed based on §49.25.520 of the Land Use Code. The section clearly states that in multifamily zoning districts, dwelling units can be detached or in the same building. The number of dwellings is determined by the size of the parcel and the density allowed.
The addition of category 1.120 Single family detached, two dwellings per lot, was a change following the Code rewrite of 1987. §49.25.520 was also added during the Code rewrite to clarify issues with the goal of adding flexibility to developers. The Planning Commission determined that on a single family residential lot, a second detached dwelling was acceptable under certain limitations. The Commission recommended that the Code be revised to allow two detached dwellings per lot in a lower density residential zoning district if the lot contains twice the square footage as that required for a single family dwelling. Multifamily zoning districts were not discussed during this process.
The Director has interpreted the Code as described for the following reasons:
Staff concludes that the proper interpretation of the Land Use Code is that two detached single family dwellings are allowed to be constructed on Lot 3A, Block 25, Douglas Townsite.
Mr. Allington referred to Mr. Maguire's comment that Section §49.25.520 of the Land Use Code has been used to make the same interpretation for other projects since the 1987 Code update. As Mr. Cooper, pointed out, 14 years has elapsed so why was this error not corrected? Mr. Maguire recalled a situation where an applicant sought to place multiple modular homes on the property. That project was permitted with no objections and no controversy.
Mr. Bruce asked if the applicant connected the two houses to create a duplex, would that be allowed? Mr. Maguire agreed.
Mr. Kendziorek asked if the only limitation envisioned was that the square footage of the property is twice the area of a single family dwelling. Mr. Maguire noted that the Commission was dealing with single family zoning districts, which do not allow above single family or duplex unit. When the Code changed to allow two detached homes, it was a major change for the Code. He reminded Commissioners that two detached dwellings are not allowed in the higher density D-5 zoning districts. However, the issue at hand is the D-18, multifamily zoning districts.
Mr. Bavard asked where Mr. Maguire obtained the information about the 1987 Code update. Mr. Maguire said he worked on this issue firsthand with the Planning Commission. His information comes from his memory of the meetings and the intent of the Commission.
Ms. Gladziszewski asked if it were true that this exact issue has not arisen before. Mr. Maguire thought that staff may have made the same judgment call on a similar situation, but no one has ever objected. CDD has made the determination that in the multifamily districts, detached single family dwellings are allowed and that the only thing that governs is the density allowed in the district.
Closing Comments of Appellant
Mr. Cooper suggested that the problem with accessory apartments is that the Code contains a lengthy section on apartments. They are a conditional use that requires approval by the Planning Commission. The Commission allowed two detached single family dwellings on D-1 and D-3, but they did not grant it for D-5. What is written in the Table of Permissible Uses was the intent of the Planning Commission. Mr. Cooper argues that the absence of a numerical indicator for D-5 accurately depicts their intent.
Both parties concluded their arguments.
Mr. Bavard asked staff what the final step in the process was. Ms. Easterwood returned to the table to address the procedural question. She said that the decision of the Planning Commission was final, unless someone chooses to appeal the Commission's action.
Chair Dybdahl asked what recourse the applicant has should the appeal be upheld. Would he return for a Conditional Use permit?
Mr. Allington suggested that the question was akin to a jury deciding guilt or innocence based upon the potential penalty. As such, considering the outcome prior to making a decision was out of order.
Chair Dybdahl asked how the Commission would like to deliberate the matter. The will of the Commission was to deliberate while empanelled following a 5-minute recess.
The meeting was called back to order at 8:15 p.m. and the Commission began its deliberations as Ms. Easterwood recused herself.
Mr. Allington characterized debate as a conflict between the narrative in Title 49 and the Table of Permissible Uses. As well, two qualified individuals disagree over what the intent of the Planning Commission was in 1987. He was unmoved by Mr. Cooper's assertion that an error uncorrected for 14 years meant anything but he now thought that the Commission had the opportunity to rectify the situation.
Mr. Bruce restated that issue under appeal: is there substantial evidence to support the decision of the Director and has there been a policy error or an abuse of discretion in the Director’s interpretation of the ordinance?
Mr. Allington added that the Commission is not persuaded by a preponderance of the evidence that there has been an abuse of the Director's duties.
Ms. Gladziszewski noted that the standard of evidence for appeals on the record is substantial evidence in support that no policy error or abuse of discretion occurred.
Mr. Kendziorek said he hasn't heard substantial evidence that there was an abuse of power or abuse of discretion. Clearly there is a conflict between Title 49 and the Table of Permissible Uses that required the Director to use her discretion to reconcile the conflict. Whether it was right or wrong, it was not an abuse.
Motion: by Mr. Bruce, that the Planning Commission accept the Findings 1 - 3 and grant the appeal, INQ2001-0007.
Mr. Bruce also spoke in opposition to the motion. He did not see evidence of an abuse of discretion or a policy error. On the contrary, Ms. Easterwood has made a reasonable interpretation of the Code.
Mr. Bavard found the process difficult, as there was no opportunity for compromise or mitigation. He thought that staff probably makes interpretations daily on the Comprehensive Plan or the Land Use Code. He was opposed to the motion.
Mr. Bruce noted that typically appellate courts defer to the agencies when it comes to interpreting their regulations and applying them. He was comfortable with staff's experience working in these issues and he encouraged the Commission to defer to staff.
Roll call vote:
Nays: Allington, Bavard, Bruce, Dybdahl, Gladziszewski, Kendziorek, Pusich, Sanford
Chair Dybdahl announced that the motion to grant the appeal failed unanimously.
Mr. Allington asked staff if CDD planned to recommend to the Law Department that the error be corrected. Ms. Easterwood said that Mr. Maguire has discussed this with John Hartle from the CBJ Law Department already.
XI. DIRECTOR'S REPORT
Ms. Easterwood highlighted a report entitled, 2000 Census Data for the City and Borough of Juneau prepared by Kathleen Bailey. This year marks the first time that Juneau will be able to utilize census data. As well, census data appears to be an accurate representation of Juneau's population.
Other topics of interest include upcoming application to amend a Small Mine permit by Greens Creek later in the summer. As well, the golf course should again come before the Commission in June.
XII. REPORT OF REGULAR AND SPECIAL COMMITTEES
XIII. PLANNING COMMISSION COMMENTS AND QUESTIONS
Mr. Bavard asked about the process for the Greens Creek application. He recalled that the mine was not originally permitted because it was outside the CBJ boundary. Ms. Easterwood said new ground will be broken. Shortly after Greens Creek was annexed into the City and Borough, they submitted a project description. That document serves as its Small Mine permit.
Chair Dybdahl commented that the large mine ordinance presented all kinds of difficulties for reviewers. Ms. Easterwood noted commented that former CBJ attorney, Blasco observed the large mine ordinance was indicative of the amount of compromise that is required.
Mr. Allington reported that the growth rate noted in Bailey’s report is consistent with that used by the Areawide Transportation Plan committee members. He was gratified that they seemed to be realistic.
Mr. Bavard asked about the May 17th meeting location at Centennial Hall. Ms. Easterwood said that the Transportation Plan is up for review and they wanted a less formal meeting and room for the public.
Mr. Bruce asked if the appellants gave an indication of whether they might appeal the decision. Ms. Easterwood did not know.
Mr. Pusich asked about the tree clearing on Old Glacier Highway. Ms. Easterwood said that Tim Maguire had made inquiries into the circumstances and scope of the lot clearing on Marciano Duran’s property but he had already left the meeting. Staff would find out more information and report back to the Commission.
There, being no other business and no objection Chair Dybdahl adjourned the meeting at 8:45 p.m.