MINUTES
PLANNING COMMISSION MEETING
CITY AND BOROUGH OF JUNEAU
Johan Dybdahl, Chairman
REGULAR MEETING
August 14, 2001

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

I. ROLL CALL

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

Commissioners absent: None

A quorum was present.

Staff present: Oscar Graham, Acting Director of Community Development; Tim Maguire, CDD Principal Planner; Sylvia Kreel, CDD Planner; Greg Chaney, CDD Planner, Chris Beanés, CDD Planner

Other CBJ staff present: Bob Millard, CBJ Engineering

II. APPROVAL OF MINUTES -

July 24, 2001 - Regular Meeting

MOTION: by Mr. Bavard to approve the Minutes of July 24, 2001 as corrected.

There were no objections and it was so ordered.

III. PUBLIC PARTICIPATION ON NON-AGENDA ITEMS - None

IV. RECONSIDERATION OF THE FOLLOWING ITEMS - None

V. CONSENT AGENDA

Mr. Dybdahl announced that there were two items on the Consent Agenda CSP2001-00006 and USE2001-00031. He inquired if there was any member from the public who wished to testify. No one wished to comment, however, Mr. Allington requested that CSP2001-00006 be removed from the Consent Agenda and add to the Regular Agenda instead.

MOTION: by Mr. Pusich to approve the Consent Agenda that included USE2001-00031, as listed below.

There being no objection, it was so ordered.

 

USE2001-00031

An allowable use permit for a 5,043 square foot pre-engineered garage and archive room, and possible expansion of 3,400 square feet in the future for the same purpose.

Location: 06860 GLACIER HIGHWAY
Applicant: JENSEN YORBA LOTT

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 a 5,043 square foot, 102.3’ x 49.3’, 24’ high non-repair garage and archive room for the use of the Alaska Marine Highway Shore Maintenance activities. The permit also allows for future expansion of the building including two mezzanines of 60’ x 15’ and 20’ x 25’ and garage space of 40’ x 50; on the east side of the building.

VI. CONSIDERATION OF ORDINANCES AND RESOLUTIONS - None

VII. UNFINISHED BUSINESS - None

  1. REGULAR AGENDA -


CSP2001-00006

State Project Review of improvements to Dairy Road and Glacier Highway and Glacier Highway North.

Location: ABBY WAY
Applicant: DOT/PF

Staff report: Chris Beanés explained that the Planning Commission's review and approval of this state construction project was required. The Alaska Department of Transportation planned to rehabilitate and improve two roadway segments in the Mendenhall Valley. Old Dairy Road to Glacier Highway and Glacier Highway north. The work is limited to pavement rehabilitation and it does not include sidewalks or bike paths. Mr. Beanés pointed out that both the Comprehensive Plan and the Areawide Transportation Plan address the need for pedestrian amenities for these areas. While the plans speak to the need for these features, it doesn't address how the plan’s goals shall be met or who pays for them. Staff is concerned that once these roads are improved without the pedestrian amenities; future work to add them must be approved via DOT’s standard funding process. The reality is: these improved sites will receive a low priority rating on the State Transportation Improvement Project (STIP) list in the future. Therefore, how can the CBJ insure that pedestrian amenities will be built in the near future and not disappear from the STIP altogether. In that regard, staff recommends as a condition for approval, that CBJ obtain a commitment letter from DOT that states pedestrian amenities such as bike lanes and sidewalks will be constructed in the near future at the two project locations.

Staff recommendation: That the Planning Commission adopt the director's analysis and findings, and approve the state project review to allow the repair and rehabilitation of the 2 roadways, including Old Dairy Road between Yandukin Drive and Glacier Highway and Glacier Highway between Mendenhall Loop Road and Egan Drive as shown in Attachment A (of the staff report).

  1. As a part of the project, construct a six-foot wide sidewalk along the southside of Old Dairy Road from Yandukin Drive to Glacier Highway, in compliance with the Comprehensive Plan and the Area Wide Transportation Plan.

Mr. Allington asked Mr. Beanés to clarify that currently there is no written commitment from DOT other than an oral statement that sidewalks will be installed by 2006. Mr. Beanés confirmed that.

Chair Dybdahl opened this item for public testimony, but no one came forward.

Mr. Allington explained that the Steering Committee for the Area Wide Transportation Plan spent a great deal of time debating the need for sidewalks in that area. In fact, both the Comprehensive Plan and that Area Wide Transportation Plan require sidewalks as a part of road improvements for that area. He was concerned that DOT had not provided a written commitment that the sidewalks will go in at any time.

Planning Commission action:

MOTION: by Mr. Allington that the Planning Commission accept staff’s analysis, findings and recommendations and approve CSP2001-0006 subject to the following Conditions:

  1. As a part of the project, construct a six-foot wide sidewalk along the southside of Old Dairy Road from Yandukin Drive to Glacier Highway, in compliance with the Comprehensive Plan and the Area Wide Transportation Plan.
  2. As a part of the project, construct six-foot wide sidewalks along both sides of Old Glacier Highway from Mendenhall Loop Road to Egan Drive, in compliance with the Comprehensive Plan and the Area Wide Transportation Plan.

In support of the motion, Mr. Allington argued that if these projects were upgraded without sidewalks now, they would likely remain without sidewalks for the foreseeable future. If this were a private developer, the Commission would not allow approval without putting sidewalks in.

Mr. Pusich agreed with Mr. Allington's analysis and recommendations; however, that as of that meeting day, Glacier Highway from Mendenhall Loop Road to Radcliffe Road had been paved. Considering the advanced stage of the project, he was uncertain as to what recourse the Commission had.

Mr. Bavard agreed as well. He recalled other state projects that had come before the Commission recently that were under construction at the same time that they were under review. He thought that CSP 2001-00006 should have come before the Commission for review in May, rather than in August, as construction was underway.

Mr. Allington was also frustrated by the limited review opportunity. State and federal law required local concurrence and approval of these projects by local elected officials. He was surprised that the federal oversight agency allowed the project to proceed. He suggested that DOT address the pedestrian amenities through a change order and he urged the Commission to accept his Conditions.

Mr. Kendziorek asked staff how the situation evolved. Mr. Beanés said CDD had negotiated with DOT regarding the pedestrian amenities but was unable to obtain a written commitment from DOT.

Ms. Gladziszewski supported the motion. The Commission was obligated to fulfill its responsibilities and she thought DOT could do likewise.

Mr. Pusich regretted that a representative from DOT were not present because he anticipated compliance to the Conditions meant a design change and it was unknown whether the funding was available. He agreed that the Commission had to try to affect compliance.

Roll call vote:

Yeas: Allington, Bavard, Bruce, Dybdahl, Gladziszewksi, Kendziorek, Pusich, Sanford, Vick
Nays:

With the concurrence of staff, Chair Dybdahl announced that the three agenda items relating to Stabler's Point would be heard together. CSP2001-00010, USE2001-00022 and VAR2001-00017.


CSP2001-00010

A City Project review to allow a rock quarry operation at Stabler's Point for a 10 year time period. Removal of rock will also result in the eventual realignment of the Glacier Highway roadway in this area.

Location: 13 MILE GLACIER HIGHWAY
Applicant: CITY & BOROUGH OF JUNEAU


USE2001-00022

A Conditional Use permit to allow a rock quarry operation at Stabler's Point for a 10-year time period. Removal of rock will also result in the eventual realignment of the Glacier Highway roadway in this area.

Location: 13 MILE GLACIER HIGHWAY
Applicant: CITY & BOROUGH OF JUNEAU

Staff report: CDD Planner, Tim Maguire explained that he would outline the major issues of the project and then report on the Findings and Conditions for approval. Following, staff's presentation, the applicant had a PowerPoint presentation to explain the technical details of the quarry operation.

This proposal differs from previous quarry permits at Stabler’s Point in that the quarry activities are unrelated to a specific project. However, the 10-year permit will make a source of quality construction grade rock available for various operators on a variety of projects. The Department of Transportation has reviewed the plan for potential traffic related problems. Access to and from the site along the south entrance driveways are considered to be a traffic hazard due to substandard sight distance and undefined access. An additional access to the quarry shall be added to the existing east access route. Several Conditions specifically address the hazards, including the use of a flagger required during quarry operation hours. Buffers, retaining walls and limited hours of operation are a part of the project to mitigate the visual and the aural impact of the quarry activities. Again, these guidelines are noted in the Conditions to follow. DOT has approved a traffic control plan that includes detailed signage outlining the operations, truck traffic and timing of blasting. Neighborhood concerns involve noise from quarry operations and blasting. To mitigate this, natural buffers will be utilized as well as limitations on days and hours of operation, decibel guidelines and noise barriers. Because blasting is the major issue connected to neighborhood compatibility, strict guidelines and standards have been imposed in the Conditions for approval.

Staff recommendation: That the Planning Commission adopt the director's analysis and findings and grant the requested Conditional Use Permit to allow a quarry operation at Stabler's Point. The approval is subject to the following Conditions:

  1. That all vehicles hauling from this site shall contain material with tailgates, covers or other similarly effective methods.
  2. That the applicant shall or shall cause signs to be posted to prohibit public access to the area, to meet the requirement of the approved traffic control plan, to provide public notice of future blasting, and to alert the public of the presence of blasting and heavy machinery activities.
  3. That the hours, days and dates of operation shall be 8 AM-4: 30 PM, Monday through Friday, all year except State holidays.
  4. That blasting operation shall be further limited to Monday through Friday of each week between the hours of 10:00 to 12: 00 P.M. and 1:00 to 3:00 P.M.
  5. That the quarry permit shall expire 10-years after the date of approval.
  6. That the applicant shall have the quarry operators submit individual mining plans and approve them based on conformance with this Conditional Use Permit prior to authorizing the mobilization of equipment or work in the quarry area. Each mining plan shall be prepared by a civil engineer and other required professionals.
  7. That the applicant shall require each quarry operator, as part of the individual mining plan, submit a blast plan for approval by the CBJ Engineering Department. The blast plan shall be reviewed by an independent blast consultant to insure a safe and controlled blast. Each blasting plan shall comply with CBJ specification 02090-Blasting Controls (Attachment K to the staff report).
  8. That the applicant shall require each quarry operator, as part of the individual mining plan, obtain an traffic control plan from the ADOT/PF to address access to and from the site and to control traffic for the quarrying and blasting activities.
  9. That the applicant shall give or cause proper notice to given to the Police, Fire Departments 24 hrs in advance of each blast.
  10. That the applicant and all quarry operators shall not store explosives on site, except that which is immediately necessary for the next blast.
  11. That the applicant shall monitor or cause drainage to be monitored during development and provide treatment of drainage such as check dams, silt fences, and retention ponds, and maintenance of improvements, in order to assure water quality standards are met. A 2% slope shall be maintained for the pit floor so that the final pit drainage will be directed toward the existing south quarry entrance. Water will be diverted away from the areas of active excavation where feasible. Each individual mining plan will address water quality and include an assessment of the capacity of the existing drainage ways to determine what improvements may be necessary. This assessment shall be completed by a Civil Engineer.
  12. That the applicant shall reclaim or shall cause the quarry site to be reclaimed as per the notes and cross sections presented in Attachments A and B of the staff report. The proposed reclamation plans will insure that adequate finished faces and benches are in place and loose rock removed, during the period between projects even if the entire quantity of rock has not been removed.
  13. That the applicant shall control or shall cause dust to be controlled caused by excavation, truck hauling, rock crushing, or other aspects of the operation;
  14. That the applicant shall repair or cause repair to any damage to the Glacier Highway as a result of the quarry operation to be repaired. If there is visible damage to the roadway due to hauling or mining operations the roadway shall be repaired with concurrence from DOT/PF
  15. That the applicant shall require a bond be posted from all quarry operators adequate to cover the costs of road cleaning from spilled or tracked material from the quarry operation. The applicant shall remove or shall cause all spilled materials immediately be removed from the public roadways and that mud and debris tracked onto the roads from the quarry site be cleaned a minimum of once a week.
  16. That the applicant shall ensure trucks meet all legal load limits. That the applicant shall insure lighting does not produce glare on the roadway.
  17. That the applicant shall operate or shall cause the quarry to be operated according to the application proposal including exhibits, drawings, and attachments except that all the conditions contained herein shall take precedence.
  18. That the applicant shall ensure that the rock extraction operations are scheduled consistent with the recommendations of the U.S. Fish and Wildlife Service for the protection of nesting eagles;
  19. That the applicant shall place or shall cause a gate to be placed at the eastern driveway entrance, and require the reconfiguration of the driveway and placement of a gate at the south entrance according to plans described in the traffic control plan at the time extraction has proceeded far enough into the bluff, to allow trucks to enter and exit the site through a single driveway opening. The quarry manager will make that determination in consultation with DOT/PF.
  20. That the applicant shall retain or cause a natural buffer similar to that proposed for the eastern end of the quarry to be retained at the western end of the quarry site for the purpose of a visual and noise barrier. This buffer can be pierced to accommodate a driveway access. In addition, a natural buffer shall be retained for noise and visual screening during all quarrying operations through out the site when at all feasible.
  21. That the applicant seed and plant the approach to the relocated eastern access driveway according to the plans shown in the Corps of Engineers permit. (Attachment H of the staff report).
  22. That the areas identified in Exhibit I impacted with rock fall be excluded from the extraction limits until such time that a qualified expert in this type of geophysical hazard evaluates the site and proposes guidelines for its development. Also, that these guidelines be made part of any approved mining plans for these sites, and written notification given to all operators.
  23. That the recommended the sound level limitation for the Leq in Table 1 read 65Leq or 5Leq above background noise whichever is less.
  24. That any crusher operation be limited to primary crushing and that no crusher be placed on site unless the crusher location is determined to have an adequate natural buffer to screen sound and sight by the quarry manager.
  25. That the applicant ensures that roadway drainage from the proposed relocated eastern driveway drain to the south.
  26. That the applicant shall have all operators of the quarry conduct their activities in accordance with all requirements of the noise management plan, blasting and noise controls, temporary environmental controls, and stipulations for the protection and of existing facilities.
  27. That a bond be posted for site restoration according to attached memo from Terry Brenner dated August 10, 2001(Attachment I to the staff report).
  28. That the site clearing be consistent with the need to retain sound and visual barriers for the quarry operation and that prior to any clearing, clearing limits be flagged and be reviewed for approved by CDD.
  29. That the individual blasts within the quarry be limited to a maximum.

Mr. Kendziorek noted that the existing rock quarry had approximately 1.8 million cubic yards of material, yet the CBJ has commitments to DOT and Pt. Lena quarry operators for about 3 million cubic yards. Mr. Maguire said that the site was available for quarry operations but the agreement doesn't guarantee that that amount of material is at that site. Both agreements state that other sites may be made available. Expanding Stabler’s Point or providing the material from another site are possibilities. However, neither of those options is contemplated in the proposal.

Mr. Bavard asked what ‘primary crushing’ meant. Bob Millard, Project Engineer for the CBJ Engineering Dept. stepped forward to respond to this query. Primary crushing is a one stage crushing operation where some product is achieved. While crushed rock for asphalt materials do not result from primary crushing, primary crushing can produce C-1 material.

Mr. Pusich asked what was the likelihood of multiple crushers on site. As the quarry is further developed, was there a potential for two or more crushers on site? Mr. Millard said that there was a potential for two crushers but it was doubtful the demand would necessitate multiple crushers. The other operator in the quarry has the option to put a crusher in but it cannot be operated until it can be located behind a rock barrier. The crusher for CBJ and state projects would be located on top, behind a vegetated barrier.

Mr. Bruce noted that Conditions 13, 14 and 15 resemble Conditions placed on the quarry operations in Lemon Creek. While that operation triggers continual complaints about dirt on the highway, the City is unable to enforce compliance. What is different about the Stabler’s Point proposal? Mr. Millard indicated that a Condition for approval provides for a bond that the City can collect on when it is necessary to clean the road. The bond amount is expected to be between $5,000 and $10,000.

Mr. Bavard thought that the bond was in the amount of $50,000. Mr. Millard indicated that the $50,000 bond was for restoration and reclamation.

Mr. Allington commented that Condition No. 17 be clarified so that the glare on the roadway did not interfere with motorists.

Mr. Millard stated that during the past year, CBJ Engineering and Toner Nordling Engineering have worked on a management plan for Stabler's Rock Quarry in response to community concerns. This is critical, as the community needs a source of durable rock for public. Earthwork projects in Juneau use between 200,000 and 600,000 tons of rock, sand and gravel each year. In contrast, a source of suitable and durable construction grade rock is difficult to come by. Mr. Millard cited a letter from Bruce Burnette, the Regional Materials Engineer for the Dept. of Transportation. Mr. Burnett explained that the shortage of good quality aggregate and paving materials affects the quality of work produced and it increases the cost of construction considerably. Stabler's Point is an excellent source of high quality rock that is also convenient and cost effective to access.

Mr. Millard added that the City and the State agreed to trade the development of Stabler’s Point for a materials source for 2 million cubic yards of rock in exchange for the conveyance of the Marine Highway Building and 2 acres along Glacier Avenue. If the Planning Commission did not permit Stabler’s Point, the City must provide the rock from another location. Additionally, Secon is authorized to extract 1 million cubic yards from the site as well. The City will collect royalties on the materials from Secon. The CBJ can extract rock subject to approval by DOT. The City, DOT and Secon shall extract the rock from Stabler’s Point as a part of a planned highway realignment designed to eliminate the S-curve. Finally, the quality of rock in Stabler’s Point is uniquely high quality and most suitable for construction purposes.

The key element of the Stabler’s Point permit is that each portion of the mining activity require the submittal of an individual mining plan that must be reviewed and approved by CBJ Engineering. For stability, a single project manager shall oversee the mine operator and each individual mining plan.

Gary Jenkins, II of Toner Nordling narrated a PowerPoint presentation highlighting the details of individual mining plan as they relate to the physical features of the site. Mr. Jenkins explained measures that the applicant took to defray the impacts of noise. First of all, a noise study was conducted to determine where the noise was generated. It was anticipated that the noise path would be narrow as the quarry retreated farther into the rock face. Noise mitigation measures include limiting the hours of operation, regulating the construction machinery for sound equipment and developing a sound control plan.

Mr. Allington asked what the results of the noise monitoring on Fritz Cove Road was. Mr. Maguire indicated that all background noise resulted in readings at below 50 dBAs. Sounds of the quarry activities were intermittent and with peaks in the upper 50’s.

Public testimony:

Bill Heard 12474 Auk Nu Drive, lives about 600 yards from the rock face. Mr. Heard opposed approval for several reasons. He believed blasting is unsafe to motorized traffic and that blasting was potentially damaging to the nearby homes. While he cannot prove the this, he had a large thermal-paned window that suddenly lost the vacuum seal at the same time Stabler’s Point blasting began in 1998. The quarry site is an eyesore to beautiful Auke Bay. Because several eagles utilize the area for nesting, continued operations and expansion violates the National Bald Eagle Act. Mr. Heard notes that there are four eagle nesting trees in the immediate area with another nearby the site. He requested that a comprehensive environmental impact study is undertaken to consider all potential impacts of the rock quarry use at Stabler’s Point. The study should consider potential hazards to human health and property, aesthetic scaring to Auke Bay, destruction of longstanding eagle nesting area and careful consideration of alternative options for other quarry sites. In closing, Mr. Heard argued that most car accidents occurred in the vicinity of Auk Nu Creek in winter on sunny days rather than at the S-curve as DOT claimed.

Robert Stone, lives .5 mile beyond Stabler’s Point and he didn’t think that Stabler’s Point was an appropriate site for a rock quarry operation. Because he traverses that portion of Glacier Highway up to four times in a day, Mr. Stone has been inconvenienced by the quarry work. He doesn’t think that a larger quarry operation and further industrialization of Auke Bay is in the best interest of Juneau. While the City did a good job of keeping the road debris-free, when a private contractor took over this spring, they did an inferior job. In fact, Mr. Stone lost a windshield from an errant rock in the area. If the State were truly interested in eliminating the dangerous S-curve then he suggested the rock be removed immediately and the quarry activities shut down. Rather than taking 10 years to conduct the quarry, the rock could be stored off site.

Richard Myron, 3320 Fritz Cove Road, said that Juneau was once a nice place to live, but that changed since the City started giving away the public resource in the last 20 years. He complained that the City was giving away rock resources to private contractors at a steal while the nearby residents are left with the bother of the noise. A larger scar to Auke Bay is now contemplated so that private contractors can have rocks to build roads. This is short sighted because in the next 20 years, roads will be outdated. He predicted that because of global warming, the entire automobile system would be shut down. He urged the Commission to reconsider their actions.

Vivian Hegg, a resident of Fritz Cove Road, said she was not impacted by the mining operations last winter when the quarry operations took place up high. Because of the first year’s activities include rock moving at the rock face; she was concerned by potentially more noise. Ms. Hegg was concerned that these operations might not be moved behind the rock face after the first year either. As well, she wondered if consistent noise monitoring would be provided for the life of the permit. She was pleased with the CBJ Engineering Department’s efforts to work with neighbors but she was apprehensive that once the long-term permit is issued, residents will be stuck with on-going problems.

Mr. Bavard asked staff to address Mr. Stone and Ms. Hegg’s concerns about traffic and blasting. Mr. Millard indicated that flaggers would be required in both areas until the south end access road is complete. Measures have been taken to minimize impacts to the road. The shot size has been limited and a certified blast specialist who is monitored by a blast consultant conducts the blasting.

Mr. Bavard asked if it were feasible to blast the material out of the quarry and store it off site. Mr. Millard indicated that quarry and construction costs are directly related to the distance required to haul the material. If the materials must be moved more than one time, a significant increase in cost is incurred.

Mr. Bavard asked if there were plans to set up a crusher at the front of the rock face. Mr. Millard assured the Commission that no crushing should occur until mining activity has progressed and turned a corner. Until there is a complete rock buffer/screen, no crushing will occur on the site.

Mr. Bruce asked what would happen to the appearance of the unsightly rock wall as the project continues. Mr. Millard said that eventually there would be a road in place of a rock wall. Initially, there will be a scar into the hillside and activities on the upper slope may be visible. Later, there will be a rock buffer in the front of the quarry and the opening will not get wider that what appears now.

Ms. Gladziszewski asked what other sources of rock existed in the borough. Mr. Millard said that the CBJ did a study to determine this. Most of the material in Juneau is soft and it degredates when moved. Consequently, it is not suitable construction materials. Other sources are either too far away or they will be exhausted by current project demands. Another source exists in the Lemon Creek Valley but a large-scale road project is required to access that site.

Planning Commission action:

MOTION: by Mr. Kendziorek to approve USE2001-00022 and CSP2001-00010 adopting staff's analysis, findings and recommendations including the following modifications and addition to the Conditions:

  1. That all vehicles hauling from this site shall operate with tailgates, covers or other similarly effective methods.
  1. That the applicant shall or shall cause signs to be posted to prohibit public access to the area, to meet the requirement of the approved traffic control plan, to provide public notice of future blasting a minimum of 24 hours prior to blasting, and to alert the public of the presence of blasting and heavy machinery activities.
  1. That the applicant shall give or cause proper notice to be given to the Police and Fire Departments 24 hrs in advance of each blast.
  1. That the applicant shall monitor or cause drainage to be monitored during development and provide treatment of drainage such as check dams, silt fences, and retention ponds, and maintenance of improvements, in order to assure water quality standards are met. A 2% slope shall be maintained for the pit floor so that the final pit drainage will be directed toward the existing south quarry entrance Water will be diverted away from the areas of active excavation where feasible. Each individual mining plan will address water quality and include an assessment of the capacity of the existing drainage ways to determine what improvements may be necessary with particular attention paid to protecting Auk Nu Creek. A Civil Engineer shall complete this assessment.
  1. That the applicant shall repair any damage to the Glacier Highway as a result of the quarry operation. If there is visible damage to the roadway due to hauling or mining operations the roadway shall be repaired with concurrence from DOT/PF.
  2. That the applicant shall require a bond be posted from all quarry operators adequate to cover the costs of road cleaning from spilled or tracked material from the quarry operation. The applicant shall remove or shall cause all spilled materials immediately to be removed from the public roadways and that mud and debris tracked onto the roads from the quarry site be cleaned a minimum of once a week.
  1. The applicant shall notify each operator of the quarry of required load limits.
  1. That the applicant shall insure lighting does not produce glare to motorists on the roadway.
  1. That the recommended the sound level limitation for the dBA in Table 1 read 65 dBA or 5 dBA above background noise whichever is less.

In addition to the modifications cited above, Mr. Kendziorek proposed Condition No. 30 to the Motion:

  1. The applicant will inspect and repair as necessary, the CBJ water main that runs through the area along Glacier Highway.

Mr. Kendziorek spoke in support of the Motion even though he was mindful of Mr. Heard’s request for an environmental impact study. So long as drainage to Auk Nu Creek was tended to and measures addressed in VAR2001-00017 were adhered to, he thought that impacts could be relatively minimal. In closing, Mr. Kendziorek asked the applicant to be very careful of the eagles.

Roll call vote:

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

These items were approved unanimously.

Chair Dybdahl adjourned the Planning Commission and reconvened as the Board of Adjustment to hear the third item relating to Stabler’s Point, VAR2001-00017.


VAR2001-00017

A variance to allow excavation of rock within the required 330-foot setback for an eagle nest located on public lands. The proposed Stabler’s Point rock quarry will be within 330' of eagles nest trees at various stages of operation.

Location: 13 MILE GLACIER HIGHWAY
Applicant: CITY & BOROUGH OF JUNEAU

Staff recommendation: That the Board of Adjustment adopt staff’s analysis and finding, and recommend approval of this variance to reduce the required setback from an eagle nest tree on public land from 330 feet to 50 feet, and for greater distances for three other eagle nest trees, for the development of a rock quarry at Stabler’s Point. The variance approval shall be subject to the following Conditions:

  1. The applicant shall assure that the rock extraction operations are scheduled consistent with the recommendations of the U.S. Fish and Wildlife Service for the protection of nesting eagles; and
  2. The applicant shall insure that no heavy equipment operations or blasting take place within the Stabler’s Point rock quarry within 330 feet of an eagle nest tree from March 1 through May 31, subject to modification from the USFWS.
  3. The applicant shall employ a qualified eagle monitor during the time period of June 1 through August 31, if quarry operations take place within 330 feet of an eagle nest tree determined to be active by U.S. Fish and Wildlife Service, or other measures deemed acceptable by the USFWS.
  4. The attached (to the staff report) eagle monitoring standards shall reflect these conditions of approval and be applied to any quarry operation at Stabler’s Point.

Ms. Gladziszewski asked if Condition No. 1 referred to established recommendations of the USFWS or any conditions that they might impose. Mr. Maguire said that the applicant must comply with any plan that the USFWS feels is necessary to protect the eagles. As well, the applicant has provided a set of standards that the USFWS provided them. The applicant must comply with those as well.

Chair Dybdahl opened this item for Public Testimony, but no one came forward.

Planning Commission action:

MOTION: by Mr. Pusich, that the Planning Commission accept staff’s findings and recommendations and grant VAR2001-00017.

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

Chair Dybdahl adjourned the Board of Adjustment and reconvened the Planning Commission to hear the next items. With the concurrence of staff, Chair Dybdahl announced that the agenda items relating to the Juneau Christian Center would be heard together: USE2001-00024 and VAR2001-00018.

Mr. Pusich disclosed that he had a conflict of interest and he recused himself from all consideration.


USE2001-00024

A conditional use permit for construction of a sanctuary addition and supporting facilities to an existing church. The total square footage of the facility will be approximately 74,000 square feet.

Location: 08001 GLACIER HIGHWAY
Applicant: TIMOTHY C. MEARIG

Staff report: Sylvia Kreel announced that she would present the staff reports for both the Conditional Use permit and the Variance request at the same time.

The Conditional Use permit is for the construction of a sanctuary and support facilities for an existing church. The applicant proposes an addition of 38,500 square feet on two levels. The primary addition is for the sanctuary or auditorium, which would seat 1,125 people. As well, there would be a new nursery wing, lobby space and office suite. Total square footage of the completed building would be approximately 74,000 square feet. Concurrently, the applicant requests a Variance that would allow the structure to be 65 feet high, where the Code restricts height to only 35 feet. Ms. Kreel referred Commissioners to the building plans to view the dimensions of the building and its orientation on the site.

Ms. Kreel notes that the new sanctuary is designed to accommodate both the desired seating capacity as well as the acoustical accoutrements. The structure rises from 35 feet at the back of the sanctuary, or the north end up to 65 feet high at the southern end. A traffic study was conducted and the determination was made that Glacier Highway could easily accommodate the anticipated increase in traffic flow. To improve the site distance of the entrance, the applicant proposes to relocate one of the entrances. Ms. Kreel notes that both the number of parking spaces and the circulation around the lot is more than adequate. As well, the plan is laid out in such a way that it minimizes large expanses of asphalt. Existing landscaping, lighting and noise levels are not factors, nor are there impacts to public health or safety that would be created by the expansion of the facility. The church is located in an area with mixed residential and commercial zones. The property is surrounded on three sides by heavily traveled roads and by commercial properties. However, the property across Glacier Highway to the north is zoned, D-5 residential. The six residential lots will be impacted by the primary addition of a 65-foot high roof. The views of some residences will be partially blocked. However, staff estimates that the structure would not block the entire mountain view or entirely block the sun. The addition was more than 340-feet away from the closest residence. The angle of the roofline, its slope and shape help to reduce the mass as it is viewed from the residential properties. Staff finds that because of the evergreen tree buffer, the distance between the addition and the residences and the configuration of the roof, the proposed development will not impact property values or neighborhood harmony. Ms. Kreel states that the development complies with all CBJ Land Use Code provisions except its height.

Staff recommendation: That the Planning Commission adopt the director's analysis and findings and grant the requested Conditional Use permit. We recommend the approval be made subject to the following Conditions:

  1. The existing trees along the perimeter of the site shall be retained, with the exception of those trees, which will need to be removed to accommodate the new entrance driveway.
  2. The lighting shall be shielded so as to not create glare or extend beyond the parking area or the tower.

VAR2001-00018

A variance to allow a portion of a building to have a height of 65 feet where the code has a height restriction of 35 feet.

Location: 08001 GLACIER HIGHWAY
Applicant: TIMOTHY C. MEARIG

Staff report: Ms. Kreel explained that the proposed structure is 65-feet high at its highest point where the Code limits the height to 35 feet. The height is intended to accommodate good acoustics and good sight distances within the 1,125-seat auditorium. Originally, staff recommended denial based upon failure to meet criteria 5 or 6. There were no extraordinary situations or unique physical features associated with the property that preclude compliance. The need for the 65-foot high building was to satisfy the design parameters of the applicant. As well, staff found that there were more detriments to the neighborhood than benefits. While staff did not feel the impacts would be significant to the neighborhood, there certainly would be detriments such as partially blocked views.

However, in September of 2000, Congress passed an act that must also be considered in the review of this Variance. Ms. Kreel referred to her memo dated August 3, 2001 where she outlined for the Board the Religious Land Use and Institutionalized Persons Act of 2000 (hereafter referred to as RLUIPA). While the Act is new and is currently being challenged in court, it has not been overturned. RLUIPA states:

No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of this burden on that person, assembly or institution:

A. Is a furtherance of a compelling governmental interest; and
B. Is the least restrictive means of furthering that compelling governmental interest.

Ms. Kreel informed the Board that they must make the finding whether or not there was a compelling governmental reason to impose the height restriction. CBJ Law Department advised CDD that RLUIPA takes precedent over local Variance criteria. If the finding cannot be made, then the restrictions cannot be imposed and Variance must be granted regardless of the local Variance criteria. CBJ Law Dept. defined a compelling governmental reason as related to health and safety issues. Because the height restriction was related to aesthetics rather than public health and safety, staff determined that there was not a compelling governmental interest or reason to restrict the height to 35 feet.

Staff recommendation: That the Board of Adjustment adopt the staff analysis and findings in both the staff report and in the memorandum dated August 3, 2001 and grant the Variance, based upon the last finding related to the Religious Land Use and Institutionalized Persons Act of 2000.

Mr. Kendziorek said he found the CBJ's interpretation of RLUIPA odd. As he interpreted it, RLUIPA did not exempt religious uses from land use laws. He quoted from Senator Orin Hatch, the sponsor of the bill, which was documented in the Congressional Record.

2 (a) (1) The General Rule does not exempt religious uses from land use regulations, rather it requires regulators to fully justify substantial burdens on religious exercise. ……. This Act does not provide religious institutions with immunity from land use regulations nor does it relieve religious institutions from applying for Variances, special permits or exemptions, hardship approval or other relief from the regulations where available without discrimination or unfair delay……..However, the party asserting a violation of this Act shall in all cases bear the burden of proof that the governmental action in question constitutes a substantial burden on religious exercise.

Based upon Senator Hatch's explanation, the Act very specifically states that a religious institution is not exempt from the rules. He believed that the Act was more directed towards churches, synagogues and other institutions that had been denied the right to meet. It provides relief for those who were told, "no you may not build a church or a synagogue" in a place. If a Variance is to be granted, it must be treated as any other applicant would be. If the applicant feels that the Planning Commission is placing an undue burden on their practice of religion then they may take action. However, to claim that RLUIPA is there (even if it doesn't apply in this case), they have carte blanche to violate the municipal code is unwise and unwarranted. Therefore, returning to the original staff findings, Mr. Kendziorek noted that there are no unique physical features and they could still build an auditorium and meet the height restriction.

John Corso, City and Borough Attorney gave the Planning Commission his report on the Religious Land Use and Institutionalized Persons Act of 2000. He reviewed RLUIPA itself as well as testimony from co-sponsors by Senators Hatch and Kennedy and Rep. Kennedy. He also reviewed the only case that has applied the Act, Murphy vs. Zoning Commission of New Milford and another case that declined to apply the case but discussed it, Covenant Outreach Church vs. City of Chicago and an article from the Georgetown Law Journal, March 2001. Mr. Corso explained that this Congress and the US Supreme Court have had ongoing discussions about the free exercise clause. For many years, the Court held that it was necessary for the government to show a compelling governmental interest before it could restrict the free exercise of religion. This rule was overturned Oregon vs. Smith where Justice Scalia argued that the state of Oregon did not have to establish a compelling government interest to prohibit a southwestern religion from smoking peyote in observance of their faith. A wide range of religious institutions that thought the abandonment of the compelling government interest test was a detriment to the free exercise of religion. There have been several attempts by Congress to re-impose the compelling governmental interest requirement, of which RLUIPA is a result.

Mr. Corso agreed with Mr. Kendziorek that the main rationale was argued on the basis of local regulations that would entirely preclude churches in suburban areas. It was particularly aggravating for supporters of the Act that a church was prohibited but a commercial enterprise was allowed. However, the Act is not limited to the total prohibition of religion, it states that government may not impose a substantial burden on the religious exercise. The Law Department's advise to CDD has been a broad construction of the Act, as is required by Section 5 (g) This Act shall be construed in favor of a broad protection of a religious exercise to the maximum extent permitted by the terms of this Act and by the Constitution. With that as the guide, Mr. Corso advised CDD to support granting the Variance at issue. He added that his advice was not based upon a lot of law, because there is not a lot of law. In Murphy, the Court argued that if the municipality denied a home church from meeting on the grounds of traffic safety, the Court argued why then did the City not regulate traffic rather than the number of people driving? What was worthwhile from Murphy was the discussion on what a substantial burden was. The state puts substantial pressure on an adherent to modify his behavior and to violate his beliefs. This occurs when a person is required to choose between following the precepts of her religion and forfeiting benefits on the one hand and abandoning the precepts of her religion on the other. It occurs when state action prevents him or her from engaging in conduct, having a religious experience that is essential to the religious doctrine.

Mr. Corso was concerned that the latest legislation includes a definition of religious exercise of a person. Section 8, Definition 7 (a) states: The term 'religious exercise' includes any exercise of religion whether or not compelled by or central to a system of religious belief.

One question to ask is what is it that the height restriction will substantially burden? He agrees that it is the obligation of the applicant to describe the substantial burden that the height restriction would impose on the religious exercise of a person. If this is not established then the Planning Commission ends the argument. However, if the applicant does establish a substantial burden on religious exercise, then it is the government's obligation to provide a compelling governmental interest. CDD staff indicated that there was not an obvious governmental interest, as no safety concerns exist. Rather, the height restriction is an aesthetic regulation only and there is a less substantial case for a compelling governmental interest.

Mr. Kendziorek asked if RLUIPA is raised once the Commission denies the Variance. Mr. Corso agreed that the Act is a defensive statute that provides assistance to religious groups and the developer and it is not the Commission's obligation to live up to it. The Law Department was asked if the Act is applicable to the case at hand and taking a broad construction of the Act, they answered yes.

Mr. Kendziorek cited another case, Civil Liberties for Urban Believers, et. al. vs City of Chicago where a zoning law that allowed churches in residential neighborhoods, but they couldn't find a large enough lot. The Court held that RLUIPA was "inapplicable to the present matter by its present terms." They found that the City was applying zoning rules fairly to everyone. By removing any potential substantial burden, the City avoided a threat of heightened scrutiny under RLUIPA. Mr. Kendziorek argued that the CBJ also applied the Land Use Code evenly and thus RLUIPA did not apply to this Variance review.

Ms. Gladziszewski thought that it was the applicants’ duty to show the government has imposed upon them a substantial burden.

Ms. Kreel discussed that point with John Hartle, Deputy CBJ Attorney. CDD used the arguments that that applicant made in their application letters to indicate a substantial burden. The applicant argued that a height Variance was necessary to achieve the acoustics and the sight distances required for a high-end auditorium, which is necessary to practice their religion.

Mr. Bruce reminded the Commission that the neighbors object to the Variance. He argued that there was a compelling governmental interest in the preservation of the integrity of the Land Use Codes and their applications. People make real estate purchases based upon what can be built in front of them or around them. The need for relaxation of the height restriction is largely due to the applicant's aesthetic design choice.

Oscar Graham, Acting Director of CDD interjected that the applicant has not made an assertion of this statute. While it is provocative, the applicant simply applied for a Variance and a Conditional Use permit.

Mr. Corso noted that the hearing before the Planning Commission was the only opportunity to establish the facts. Further proceedings before the Assembly are based upon the record before the Commission. If a legal issue becomes important, the sooner it is examined, the better. Having said that, Mr. Corso agreed that it was the applicant's obligation to establish that there was a substantial burden on religious exercise.

Chair Dybdahl added that CDD staff relied on Steve Ignell's letter of August 9, 2001 as the argument that CBJ Land Use Code imposes a burden on their religious exercise. In turn, the Commission relies on staff for their report and they chose to include RLUIPA as the basis of their approval.

The absence of Mr. Allington was noted.

Public Testimony

Steve Ignell, 14285 Otter Way, appears for the applicant in his capacity as a member of the Juneau Christian Center's Building Committee. Mr. Ignell described how the proposed sanctuary was really the completion of the vision of the church. He recounted the history of the church and its various meeting locations from its founding in Juneau in 1912. Continually outgrowing its meeting locations, the church purchased the property to accommodate all of its future needs. Construction began and various buildings such as the school wing and gymnasium were completed. The church has used the gym as the worship center since 1978 and now they look forward to completing the building process with the construction of a new sanctuary.

Mr. Ignell introduced the Commission to Lee Kirk, the Seattle-based architect who designed the facility.

Lee Kirk, an architect specializing in church designs and gives form to the church's needs. Mr. Kirk gave a PowerPoint presentation featuring the aerial views of the building site and various perspectives of the building plans. He emphasized that considering the overall plan for the building and the overall size of the lot, it is only a small portion of the building exceeded the 35-foot height limit. Mr. Kirk illustrated that portion of the addition for the Commission. Mr. Kirk explained that if the sloping roof height were averaged, the average elevation was about 37-feet high, which is very near the height limit. He noted that zoning codes allow a gabled roof on a typical A-frame structure to be measured to the average height. Since the proposed structure's roof only slopes in one direction, they are not able to measure to the average height. He emphasized that the fan-shaped roof peaks at a vertical focus at the farthest point away from the residential lots and closest to Egan Drive. While the proposal is for a 1,100-seat sanctuary, the design seeks to make the most efficient use of the property, leaving room for yet another expansion at some distant date in the future. The sanctuary requires vertical space above the stage area to accommodate choirs on risers and a large projection screen. The area above the stage encloses state of the art loud speakers that maximize the sound quality. Other features built into the design by consulting acoustical engineers include curved ceiling panels that reflect sound and the room's volume, which was specifically calculated and tuned to promote reverberation. These performing arts center-like features enhance the musical orientation of the Juneau Christian Center's worship practices. As such, the features are conditioned upon the retention of the large vertical spaces afforded by the design. The height is a function of the structure, the acoustics and of the internal sight lines. The building design's height also contains an important external feature. The tower, which is the highest point, contains a symbolic element, which provides a high profile image directed at Egan Drive. The tower is a symbolic steeple that also gives the building the appearance of reaching to God.

Mr. Kirk explained that the design team contemplated how the residential views would be impacted by the addition. To illustrate the results of this exercise, he displayed several computer-aided designs depicting the proposed building in place.

Tobe Thompson, 7850 Glacier Highway, owns two of the six residential lots across Glacier Highway from the Juneau Christian Center. Ms. Thompson speaks for all residents opposing the granting of the Variance. She is not opposed to the church's growth and development, but she believes that this must take place in compliance with the Land Use Code. She urged Commissioners to adopt staff's initial recommendation for denial. Any relief that the Variance would provide Juneau Christian Center would be above and beyond what would be granted other property owner. She believes that the tower is not a steeple and it should be considered in the overall height of the building. She noted that the roof was not a shed roof and she urged the Commission to reject considering the average height of the building in their deliberations. Ms. Thompson believes that the church could accomplish its expansion within compliance to zoning codes. She opposed sacrificing her property value so that the Juneau Christian Center could create a visual presence in the community. In support of her argument, Ms. Thompson provided a letter from a local real estate agent, Scott Granse indicating that her developed lot could drop $7500 to $15,000 in value if the Variance were granted. Mr. Granse indicated that properties to the west might experience an even greater impact since they are lower are in direct line of sight. In closing, Ms. Thompson asked the Commission to consider that she has the right to quiet enjoyment of her property and the views it provides for her. The neighborhood is in complete agreement that their views will be obstructed to some degree and as such, the project is undesirable. She stated that the neighborhood wanted to work with Juneau Christian Center to come up with a compromise plan where the impacts to the residential properties were mitigated and they could achieve some of their vision.

She commented that RLUIPA was a land use act but the JCC had applied for a Variance for building height and not for the land use. Denial would not impose a substantial burden because the free exercise of religion doesn't depend upon Carnegie Hall acoustics. RLUIPA doesn't seek to protect aesthetics. Interpreting RUILPA could result in the loss of ability to control size, height, zoning, aesthetics, injury to property and environmental concerns. At the very least, additional study of the Act must be required if the Commission were to rely on it.

Howard Ensor, 7860 Glacier Highway, said he had a pretty view that he didn't want to loose. Mr. Ensor and his wife just learned about the church expansion recently. He is flabbergasted that a 65-foot Seattle scale building is contemplated on this site. In closing, Mr. Ensor supported all the points made by Ms. Thompson.

Doug Dvorak, 7808 Glacier Highway, said he didn't object to the expansion of the JCC, just its height. Mr. Dvorak displayed the drawings of the sanctuary and illustrated to the portion of the roof that he objected to. He noted that the roof is slated to be a raised-ridge metal roof. Mr. Dvorak calculated that the area of the roof totaled about 4/10's of an acre. As the roof is on a level plane, the roof will functionally be a huge mirror.

Rex Thompson, 7850 Glacier Highway, endorses all the concerns expressed by the neighborhood thus far. He emphasized that they are not saying no to development on the property and he hoped to discuss this further with Pastor Mike Rose. He hoped to arrive at a compromise that included a church to satisfy their congregation's needs and not damage the residential property value.

Dave Vollenwieder, 7854 Glacier Highway, argues that the roof height is more than an issue of aesthetics. A 65-foot roof will cast a shadow on the 90-degree turn at the intersection of Glacier Highway and Yandukin Drive. In the wintertime, the shadow will create freezing and thawing conditions that will result in many more car accidents.

Chair Dybdahl invited the applicant back to respond to issues raised during public testimony.

Steve Ignell thanked the neighbors for their comments. He indicated that JCC wanted neighborhood unity that included their facility as well. Early on, the Building Committee was concerned about neighborhood property values and they contacted several appraisers. Unfortunately, their contacts were inconclusive and they were not able to quantify the project's impact on property value. The steeple portion of the roof occupies 1.5% of the footprint. He noted that nowhere in Southeast is there a church like that which is proposed. In Seattle, many churches could not meet a 35-foot height restriction. Church construction seems to involve the need for height.

In terms of the RLUIPA factor, Mr. Ignell addressed the five priorities of the Juneau Christian Center's mission. A key priority is music and the atmosphere of worship. Large projection screens and large spaces are a major feature of many contemporary churches. It is more than mere aesthetics; these features are all a part of the atmosphere of worship. Unfortunately, churches must utilize form and function but that is the way it is. The steeple element on the building is important as well as there is a cross on the outside. He recounted memories from foreign travels where at night he could see lit crosses on church buildings. That was a comforting statement that announced, "this is a house of worship". That is what JCC wants to declare to the community and this is a part of their traditional exercise of their religion.

Mr. Bruce referred to the diagram of the building. It appeared that a significant portion of the excess 35 feet was to accommodate the mechanical room in the roofing structure. Mr. Ignell stated that the mechanical room was an aside; the purpose of the space was for acoustics.

Mr. Kirk explained that the building was styled so that the roof should rise above the stage and was completed by the shape of the tower. This completes the symbolic shape of the building. The mechanical room was added as a utilization of the space.

Mr. Bruce asked if the same number of people from the balcony could be accommodated in one level by expanding the footprint of the building. Mr. Kirk indicated that the designers sought a more compact design and two stories avoids sprawl. The balcony itself is not a strong determinant of the height as the roof angle juts out from the balcony.

Mr. Ignell stated that the Committee believed they were creating a better situation for the residential area by making a compact footprint and minimizing the area where the vertical space was largest. In contrast, a Fred Meyer-type building on that site would have a detrimental impact on the views. By placing the narrow high points at the back of the property, the view angle is quite small.

Ms. Gladziszewski noted that most of the building is within the 35-foot height limit and the portion of the building that exceeds the limit seems to be for architectural impact of the exterior. It seems like the building's functions could be met by cutting out the height that exceeds the limit.

Mr. Kirk said that a flat roof was disfavored due to the winter conditions. While the roof could be lobbed off at 35 feet, a more complicated roof shape with columns would result. The complicated roof becomes a serious economic question whereas the sloped roof over a simple structure is preferable.

Mr. Bavard was concerned by neighbor's claims that they had just learned about the expansion while the project was clearly in the works for a long time. He asked if the Building Committee had considered getting the six residential lot owners involved in the planning early on. Did they ever reach out to the neighbors?

Mr. Ignell admitted that the Building Committee errored by not involving the neighbors at the outset. As a paleo-climatologist by day and building committee member by night, he regretted his inexperience and that a dialog was not begun sooner. He offered no excuse.

Tim Mearig, is the architect of record and local liaison to Lee Kirk Architecture. One of his responsibilities was to explain the local zoning codes to Lee Kirk. He wanted to recap several important features of the proposed structure for the Commission. First, the balcony concept was a key factor for the acoustical needs and for adequate sight lines between the worshipers and the stage. A slopped roof was the best architectural solution for the environmental challenges of Juneau and the need for a visually attractive building. Finally, the building was driven by an inside out approach. The most important considerations were the display of words, the placement of a choir on risers and adequate acoustical elements. The design meets the needs of the client and their style of worship.

Chair Dybdahl asked if the school's growth has been in step with the growth of the church itself. Mr. Ignell indicated that school growth has been steady with an occasional burst in attendance. He added that the school is not a primary priority of the church but it will be maintained at its current level of use.

Public testimony was closed.

Mr. Bavard asked staff to clarify their position on the Variance. As stated in the memorandum of August 3, 2001, Ms. Kreel indicated that there is no compelling governmental reason to impose the height restriction. If the Commission makes that finding then it takes precedent over the other Variance criteria. If so, then staff recommends that the Variance be approved.

Mr. Corso added to Ms. Kreel's finding. Does the height limitation impose a substantial burden on the religious exercise of a person. He provided a test to assist the Commission in making their findings. Reading from Hicks vs. Garner, a case from the 5th Circuit. Has it been established that the height limitation imposes a substantial burden because:

Because it prevents a religious adherent from engaging in conduct or having a religious experience which the faith involves. This interference must be more than an inconvenience; the burden must be substantial and an interference with a tenet or belief that is part of the religious doctrine.

To exceed the "substantial burden" threshold, government regulation must significantly inhibit or constrain conduct or expression that manifests a tenet of a person’s individual beliefs must meaningfully curtail a person’s ability to express adherence to his or her faith; or must deny a person reasonable opportunities to engage in those activities that are fundamental to the person’s religion.

To be a "substantial burden", the government must either compel a person to do something in contravention of their religious beliefs or require them to refrain from doing something required by their religious beliefs.

A "substantial burden" has been defined as follows: where the state (the CBJ) conditions receipt of an important benefit upon conduct prescribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists.

Mr. Corso instructed commissioners that if they find evidence, under these standards that leads them to believe that there is a substantial burden on a person's religious practice, then they should grant the Variance under RLUIPA. If not, then they must apply the ordinary standards of a Variance.

Mr. Kendziorek asked if the Variance should be addressed before the Conditional Use permit.

Mr. Bruce suggested the opposite. He reiterated that the Planning Commission must find that a substantial burden on the exercise of religion and then apply the Variance criteria.

Ms. Kreel said that if the Conditional Use permit is approved and then the Variance is denied, there would be difficulties. She recommended that the Commission take up the Variance and then continue with the Conditional Use permit. As well, she suggested that if the Commission were not inclined to approve the Variance, perhaps the Conditional Use permit could be tabled and revised.

Board of Adjustment action:

MOTION: by Mr. Kendziorek, that the Board of Adjustment adopt VAR2001-00018 as currently written.

Mr. Kendziorek spoke in opposition to the Motion. There was not a substantial burden placed on the church by requiring them to comply with local zoning ordinances. JCC could still expand; build a structure 35 feet high. While they might not have acoustics as good as Carnegie Hall, granted. Even if music is a strong priority for the church, they may still worship. In fact, there is absolutely no burden being imposed.

Mr. Bruce said that he hasn't heard evidence that the height limitation imposed by the Land Use Code is a substantial burden. He thought that the applicant was driven by aesthetic issues, primarily. He commended the applicant for their efforts to accommodate the needs of the neighbors, but they have obviously not satisfied them entirely. He agreed with staff's original findings that criteria 5 and 6 have not been met.

Mr. Vick noted that St. Ann's and the Russian Orthodox churches downtown both exceed 35 feet high. Based upon that, he thought that JCC ought to be able to build to the same height.

Ms. Kreel indicated that the churches Mr. Vick cited were both in MU zoned areas where there is no height restriction.

Mr. Bavard regretted that church officials neglected to contact their neighbors. He did not feel the height restriction placed any burdens on the church. He thought that members of the design team could have handled the situation better, by meeting with the neighbors a lot earlier. It was unfortunate.

Chair Dybdahl asked for staff's advise on whether the Variance request should be either voted on or tabled. He indicated that a vote on the issue would likely result in its defeat. Ms. Kreel suggested that it would be friendlier to table the item and thereby save the applicant the cost of fees. She urged the Commission to itemize the concerns outlined by the commission.

Mr. Dybdahl was concerned that the applicant did not have time to fully address RLUIPA even though it was so talked about.

Planning Commission action:

MOTION: by Mr. Vick to table VAR2001-00017 and USE2001-00024.

Mr. Kendziorek objected. If a major design change resulted from this action, a new application may be required. A church is a good thing and the Commission is generally supportive. In this case, violating zoning laws and shifts of the burden onto the neighbors is unacceptable. Tabling these items will change nothing.

Ms. Kreel clarified for the Commission that if the Commission denied the Variance, the findings must to be clearly made. Tabling the item eliminates the need to make appeal proof findings.

Roll call vote:

Yeas: Bavard, Bruce, Dybdahl, Gladziszewski, Kendziorek, Sanford, Vick
Nays:
Absent: Allington, Pusich


USE2001-00025

Permanent personal use kennel for a maximum of 16 dogs.

Location: 24625 GLACIER HIGHWAY
Applicant: JUDY STEFFEL

Staff report: Greg Chaney, Planner for CDD briefed the Commission on this classic land use conflict. The applicant was previously granted a Conditional Use permit to keep eight dogs on a trial basis. As the trial year is over, the named applicant, Judy Steffel, requests a permanent permit to keep her kennel and to increase the number of dogs allowed from 8 to 16. CBJ Land Use Code defines a kennel as a building in which six or more dogs, more than four months of age are kept. If there are five dogs or less, they are not considered a kennel and they are not subject to the Conditional Use permit process. Ms. Steffel states she wants to breed the KyiApso's and she requests an increase in the number of dogs to 16 to allow flexibility. However, after one-year trial, it is apparent that the immediate neighbors do not find the situation acceptable. To her credit, Ms. Steffel has taken extreme measures to address the noise problem and the need to maintain a secure fencing system. While these measures have largely been successful and the Gastineau Humane Society has not received any complaints during the last year, several letters of complaint were submitted to CDD as a part of its review. Although staff recommends a conditioned approval, because of the extreme dissatisfaction expressed by some neighbors, staff recommends that the maximum number of dogs permitted be kept to 8. Mr. Chaney noted that if the application were not approved, the number of dogs would probably be reduced from eight to five. This would not meaningfully reduce the impact of the dogs on the neighbors and no conditions will be in force over the operation of the site.

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 applicant (Judy Steffel) to continue to use a personnel use kennel to keep a maximum of eight (8) dogs over four months of age. The approval is subject to the following Conditions:

  1. If the Community Development Department Director receives documentation which establishes that a dog (or dogs) from the applicant’s kennel were found unattended beyond the applicant’s property limits, the Director (after consideration of the facts) may require reconsideration of this Conditional Use Permit by the Planning Commission. During its review, the Planning Commission may rescind, modify or leave intact the current permit.
  2. The applicant shall maintain a secure fencing system to assure the dogs are not able to leave the property without adequate control. This containment system shall consist of a minimum of a 6-foot high fence surrounding the entire kennel site. The fence shall have at least two electric wires. One at the top of the fence and one near the ground. This electric fence system shall be well maintained and operational for the facility’s operational life. Vegetation shall not be allowed to come in contact with live wires in such a fashion that it reduces its effectiveness. The double gate "arctic entry" shall be maintained in good condition as a component of the kennel.
  3. The applicant shall house no more than eight (8) dogs of more than four months of age on the subject property.
  4. The applicant shall assure that bark control collars are in operational condition while worn by the applicant’s dogs.
  5. The applicant shall maintain an insurance policy (such as homeowner’s insurance), which covers personal liability for damage or injury, which, might be caused by the applicant’s dogs if they escape from the facility.
  6. Nothing in this permit excludes the applicant’s kennel operation from any provisions of CBJ Chapter 08.45.010 "Objectionable Animals".

Mr. Pusich asked what type of documentation did he envision for Condition No. 1. Mr. Chaney said that the appropriate documentation was up to the discretion of the Director of CDD. Mr. Graham said the history of the kennel facility must be considered and the severity of the problem or the infraction would be assessed before the Planning Commission was asked to reconsider.

Mr. Pusich stated that even if the Conditional Use permit were denied or even rescinded, the applicant could keep five KyiApso dogs unconditionally. Mr. Chaney said the Planning Commission would have no input on the nature of the kennel; however, the Objectionable Animal Ordinance would always apply.

Mr. Bavard asked for clarification on whether or not the Conditional Use permit were a land use or personal use permit. Mr. Chaney indicated that it were a land use permit that was tied to a specific individual as a manager. If there were a change in management, the Conditional Use permit must be reheard. It is a departure from the standard procedure for conditional uses of property.

Mr. Kendziorek asked if the Planning Commission could limit the kennel to 5 dogs and still require the conditions. Mr. Chaney said that the minimum kennel size is 6 dogs. If it fell below that number, by definition, Ms. Steffel did not have a kennel and the Planning Commission did not have authority. If the Planning Commission did reduce the number of dogs that the kennel was permitted for, there would be grave implications for the applicant without any impact on the volume of noise or the degree of public safety.

Ms. Gladziszewski asked why CDD recommended approving the permit while a similar agency in Fairbanks would recommend denial. Mr. Chaney said that only a small portion of the City of Fairbanks and the surrounding area is zoned so that kennels (by definition, four dogs or more) are controlled. Beyond that ring, there are no limitations on kennels. In Fairbanks, if someone cannot keep their dogs in town, they can easily move a short distance away and live unrestricted. Therefore, within the regulated zone, kennels for kennels on a similarly sized lot and with that concentration are generally denied. By contrast, in Juneau, there is no location that is not regulated.

Before Chair Dybdahl opened public testimony, he announced that USE2001-00029 would be rescheduled to August 28, 2001.

Public testimony:

Judy Steffel, 24625 Glacier Highway, is the applicant. Ms. Steffel stated that she only planned on having two dogs but ended up with eight. They are her pets and she loves them dearly. She is unable to breed actively due to the expenses involved as well as the difficulties in finding appropriate homes for these challenging dogs. During the last year, Ms. Steffel changed jobs and she now works at home where she is able to closely monitor the dog's activities. She has outfitted the outside are with audio and visual monitoring. If a dog with a voice begins to bark, he is immediately brought into the house. The rule is "if you bark once, you go inside." Last winter, they learned to stay outside for hours at a time by not barking. All of the dogs with voices are outfitted with electric bark collars when they are outside. Several of the dogs have been debarked. Their sounds are inaudible to Ms. Steffel from her house without the aid of her audio monitor. The debarked dogs make a huffing noise. The serious problems that Ms. Steffel encountered with the KyiApso dogs occurred prior to the last hearing before the Planning Commission. Until she began work on the permanent kennel permit, she had not heard a single complaint from either her neighbors or from Wayne Lyons, the CBJ's Animal Control Director. She believes that her neighbors were unfortunate victims of bad circumstances when she moved out to the area. For the six weeks of her residency, the dogs barked continually throughout the day. The neighbors called a specific animal control officer to complain, but they were told that nothing could be done. Ms. Steffel had no clue what was going on until the officer later issued a citation for Objectionable Dog. She regrets that she wasn't informed and she immediately took actions including having the four problem barkers surgically debarked.

Until now, Ms. Steffel was not aware that the "huffing" made by the debarked dogs was audible to her neighbors. Her mistake was not calling the neighbors weekly to inquire about any problems with her dogs. Ms. Steffel states that the kennel is completely enclosed and secured by ample reinforcement. It is also surrounded by plywood so that the dogs do not receive visual stimuli. There is a powerful electrified fence that also provides a barrier. The dogs with voices are outfitted with bark collars and she monitors the area with both audio and visual recording devises. Any time that a problem developed with her dogs, Ms. Steffel has taken immediate action to correct the problem.

Mr. Bruce commented that dogs react to more than visual stimuli. Referring to Ms. Jorgensen’s letter, the dogs bark when they hear her across the highway retrieving her newspaper. Mr. Bruce noted that the neighbors still seem to be bothered by the dogs. How can she compensate for that? Ms. Steffel stated that when the dogs alert to noise and they begin barking, they are yanked inside immediately. She understands the Brown’s frustration. They are overly sensitized to her dogs based upon their initial experiences when Animal Control refused to respond to their complaints. Ms. Steffel explained that she would continue to reach out to her neighbors.

Mr. Bruce commended the applicant for the efforts she has made, however, neighbors still complain about the problem. He thought controlling eight dogs is more formidable than controlling five. Ms. Steffel said that she had no idea that the debarked dog's "huffing" was audible by the neighbors. She rebutted the complaining statements made in one letter. The neighbor alleged that she allows the dogs to bark and bark and bark because she has a high tolerance to noise. That was untrue. If the dogs bark, she immediately brings them in. During the evening and overnight, the dogs are inside. Ms. Steffel believed that the neighbors have a serious sore spot over her dogs. She didn't think that they paid attention to all of the other barking dogs in the valley. They only hear her dogs.

Wayne Lyons, Animal Control Director of the Gastineau Humane Society, said that Ms. Steffel is definitely not an ordinary pet owner. She is willing to do anything to control and contain her animals. However, if the dogs do get loose, they will create a problem. He distributed photos taken of an animal that was attacked by the KyiApso dogs in 2000. He agreed with Ms. Steffel, that when she first moved out the road, the officer in charge could have handled her case better. Since the last Conditional Use permit had been issued, no complains concerning Ms. Steffel's dogs have been received.

Sue Jorgensen, 24624 Glacier Highway, lives 1/4 mile away from the kennel, across the street from Ms. Steffel. Ms. Jorgensen objects to increasing the kennel size from 8 dogs to 16, only. She said it was irrelevant that no complaints had been made to Animal Control. In the past Animal Control has told her that that the dogs in the neighborhood were her own problem. As such, she doesn’t bother calling them anymore. She states that the KyiApso dogs alert to her any time she walks down her driveway. Ms. Jorgensen is concerned what might happen when the electrified fence is disabled due to frequent and prolonged power outages at 25 mile. She also pointed out that Condition No. 4 does not require the dogs to be outfitted with bark collars and that should be corrected.

Tina Brown, lives next door to Ms. Steffel. She believes that if the kennel permit is expanded to allow breeding and up to 16 dogs, worse problems will result. An aggressive female dog will only become more dangerous since she will act to protect her young. Ms. Brown did not want to see little puppies forced to wear electric bark collars either. She wanted the Planning Commission to require Ms. Steffel to notify her insurance company of the situation. She also wanted the insurance limits increased.

Mr. Sanford asked Ms. Brown what her experience over the past year was. Ms. Brown stated that she could hear the dogs making the huffing sounds, alerting and barking at times. What's more, she continues to feel afraid knowing that the dogs are escape artists and that they might get out. She was also worried that a visiting child might wander off of her property and into the electric fence.

Mr. Kendziorek asked Ms. Brown if she was made aware of a KyiApso escaping by jumping out of Ms. Steffel's window. Ms. Brown did not know that happened.

Mr. Bavard asked for her thoughts on the number of dogs permitted in the kennel. Was she more comfortable with 8 dogs or would she prefer 5 dogs without any conditions? Ms. Brown said she did not want to see more than 8 dogs or additional puppies.

Mr. Chaney clarified the point that Mr. Kendziorek had made. While the dog did jump out a window, he jumped into the enclosed yard. Ms. Steffel’s home is completely circled by the elaborate fencing system.

James Sarzynski, 24625 Glacier Highway, is married to Judy Steffel. He states that they never intended on having 8 dogs. This came about following an unplanned litter and after the puppies could not be placed. During the past year, they have taken extraordinary measures to insure that no future pregnancies occur. Mr. Sarzynski looks forward to retiring in April, 2002 and after that they hope to relocate to an area where they can keep the dogs and not bother anyone. He understands the frustration of his neighbors and he wished that they were contacted when problems arise. If they know a problem comes up, they immediately take action.

Mr. Bruce asked what the liability limits on their homeowners insurance. Mr. Sarzynski stated that they have standard coverage even though the insurance company was notified of the number and nature of the dogs. He will provide CDD with proof of their liability coverage.

Mr. Dybdahl asked how they ended up "taking back" a dog that had been sold. Mr. Sarzynski stated that the contract of sale provided for them to take back the dog if their home was unsuitable.

Mr. Dybdahl asked if the circumstances that the dogs must live with are in their best interest. Has the applicant considered the fact that this may never be a compatible situation? Mr. Sarzynski agreed that this was not the best situation for the dogs. As such, they are looking to purchase land where the dogs can have a better life. He hoped that this would be the last time before the Planning Commission.

Mr. Bruce asked if the electric fence had an alternate power source. Mr. Sarzynski said that it did not. The longest power outage was four hours, with the typical being one hour. The dogs are trained to stay away from the fence because of the strong current.

Judy Steffel, said she agreed to keep the kennel size limited to 8 dogs. The dogs stay far from the electric fence. As well, the electric wire is located well within the fenced area and it would be extremely difficult for someone standing outside to reach it. The dogs are not miserable. The debarked dogs are unaware that their voices have been altered. Are the dogs happy? Yes! They are all well loved family pets. She understands that the problems have occurred in the past and she will take whatever steps necessary to keep her neighbors comfortable in the current situation.

Public testimony was closed.

Ms. Gladziszewski asked when the bark collars were put on the dogs. Ms. Steffel stated that whenever the un-debarked dogs are outside, the bark collars are on.

Mr. Bruce thought that special care should be paid to the Condition dealing with homeowner’s insurance. If the dogs were responsible for a serious injury or death, the sky is the limit in terms of the amount of damage Ms. Steffel could be liable for. At a minimum, $300,000 should be stated.

Mr. Chaney asked if Mr. Bruce wanted that stated in the Conditions.

Ms. Gladziszewski suggested the wording, "the applicant shall maintain and provide to CBJ proof of insurance policy with the minimum amount of $300,000."

Planning Commission action:

MOTION: by Mr. Bavard, to accept staff's findings, analysis and recommendations and approve USE2001-00025 including the following amendments to Condition No. 5:

5. The applicant shall maintain an insurance policy (such as homeowner’s insurance) for a minimum of $300,000, which covers personal liability for damage or injury, which, might be caused by the applicant’s dogs if they escape from the facility. The applicant shall provide proof of insurance to CBJ.

Mr. Bavard supported the motion. He thought it were better that stringent Conditions applied rather than none. He didn’t understand why the applicant was in the situation that she was in but he hoped that the Conditions were enough to cover potential problems.

Mr. Kendziorek offered a friendly amendment to Condition No. 4, " the applicant shall ensure that that bark collars are worn at all times by the applicant’s dogs, while outside and that they are in operational condition.

Ms. Gladziszewski suggested, Condition No. 4 state: "on any dog placed in the outside kennel that has not been surgically debarked, the applicant shall place bark control collars and shall ensure these collars are in operational condition."

Mr. Pusich also suggested that the Conditional Use permit be valid for only one year. Even though there are many conditions, there are tremendous risks associated with the dogs.

Mr. Bavard accepted the limitation as a friendly amendment.

Mr. Vick suggested that the permit be valid for two years. While they may be great dogs for the applicant, they are potentially dangerous and they have a significant impact on the neighbors.

Mr. Pusich agreed to the two-year limitation.

Mr. Bavard accepted that as a friendly amendment. The following are the amended Conditions Nos. 4 and 5 and the additional Condition No. 7:

  1. On any dog placed in the outside kennel that has not been surgically debarked, the applicant shall place bark control collars and shall ensure these collars are in operational condition
  2. The applicant shall maintain an insurance policy (such as homeowner’s insurance) for a minimum of $300,000, which covers personal liability for damage or injury, which, might be caused by the applicant’s dogs if they escape from the facility. The applicant shall provide proof of insurance to CBJ.
    7. This permit shall be valid for two years.

Mr. Bruce views the applicant’s home as a maximum containment situation. Whatever is going on, the neighbors continue to be bothered. Perhaps with a time limitation, the situation will continue to resolve itself. He did note the applicant’s sensitivity to the neighbor’s irritation but the situation was tough.

Mr. Chaney asked if the Commission had any concerns by the potential puppies. There is no limit on the presence of puppies under four months of age.

Mr. Bavard didn’t think that this posed a problem. If the puppies bark, the Objectionable Dog ordinance applies. Once they are five months old, they must go.

Roll call vote

Yeas: Bavard, Bruce, Dybdahl, Gladziszewski, Kendziorek, Pusich, Sanford, Vick
Nays:
Absent: Allington

Due to time constraints, USE2001-00029 was rescheduled to the August 28, 2001 Regular meeting of the Planning Commission.


USE2001-00029

Conditional Use permit to create an accessory apartment within an existing detached garage.

Location: 04380 BAUER LANE
Applicant: CHRISTOPER ALTON


IX. BOARD OF ADJUSTMENT

Both agenda items scheduled for the Board of Adjustment were moved to the Regular Agenda. These items were: VAR2001-00017 and VAR2001-00018.

X OTHER BUSINESS - None

XI. REPORT OF REGULAR AND SPECIAL COMMITTEES - None

XII. PLANNING COMMISSION QUESTIONS AND COMMENTS - None

XIV. ADJOURNMENT

Motion: by Mr. Pusich to adjourn.

Without objection, Chair Dybdahl adjourned the meeting at 12:00 a.m.