Johan Dybdahl, Chair
November 27, 2001

Vice-Chair Bavard 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.


Commissioners present: Mike Bavard, Dan Bruce, Marshal Kendziorek, Merrill Sanford, Jody Vick

Commissioners absent: Johan Dybdahl, Maria Gladziszewski, Mark Pusich

A quorum was present.

Staff present: Dale Pernula, Director of CDD; Tim Maguire, CDD Principal Planner; Chris Beanés, CDD Planner, Teri Camery, CDD Planner


MOTION - by Mr. Kendziorek to approve the minutes of the November 13, 2001 as written.

Hearing no objection, it was so ordered.






An Ordinance (Serial No.: 2001-16) to amend the land use code to allow greater square footage for convenience stores based upon bonus amenities provided by the applicant. In addition, landscape requirements were added to allow buffering between incompatible land uses.


Vice Chair Bavard asked staff to summarize the actions taken with regard to this draft ordinance. CDD Planner Chris Beanés recalled that the initial review of this ordinance by the Planning Commission reviewed the first draft of the ordinance in August. This review resulted in a referral to the Committee of the Whole session in order for details to be thoroughly analyzed. At the September 18th COW meeting, a line-by-line review resulted in a second draft that was presented to the Commission on October 9th. The Commission made additional comments and requested further changes to the draft ordinance. Draft No. 3, dated November 13 reflects all the changes from previous work sessions. He noted that the ordinance was not taken up at the November 13th Planning Commission meeting because of improper public notice and the omission of Minutes from the October 9th, 2001 meeting. Mr. Beanés summarized the documents provided to the Commission as they prepared to review the final draft of the ordinance.

Modification No. 1

Mr. Bruce indicated that several items remained excluded from the final draft. He noted testimony from witnesses concerning f(1) concerning the barrier of residential properties. His recollection that the barrier be more than a mere shrub barrier. He thought that the barrier included incorporating a fence along with a shrub. He noted that these comments might have been inaudible at the last meeting minutes. Mr. Beanés said his draft attempted to incorporate all aspects documented in the minutes, however, Mr. Bruce's comments were excluded. Mr. Bruce indicated that that discussion followed the testimony of Nina Brown, page 7 of the October 9, 2001 minutes.

Mr. Kendziorek asked if Mr. Bruce had language for that addition.

Mr. Bruce said that suggested language from the October 9 minutes stated, "the 5-feet strip unless the applicant can demonstrate that a narrower strip can accomplish the purposes of physical and site separation."

Mr. Beanés noted that Mr. Bruce's suggested language is noted on Line 18.

Mr. Bavard further suggested that on Page 3, Line 22, "continuous fence or shrub screen."

Mr. Kendziorek said that a potential problem with that language didn't address the intent was that a physical barrier be installed but that it also be aesthetically pleasing to the residents. The Commission sought to exclude the construction of a "spite fence."

Mr. Bruce suggested the following language, "a continuous physical barrier composed of fencing and/or shrubbery that shall be 6 feet high and 95% opaque."

Mr. Bavard added, "and that it be in overall harmony with the neighborhood."

Mr. Pernula also suggested that the language call it a solid fence with adequate landscaping buffering or something to that effect.

Mr. Bruce agreed, adding that the barrier being within the overall harmony and design o the neighborhood was an important component of this ordinance.

Mr. Kendziorek asked if language must be crafted or would it be enough to specify the Commission's intent before it could be voted on.

Mr. Bavard said that in the past, the Commission preferred to vote on the corrected final draft ordinance rather than merely approving intent. He noted that the Commission had reverted to tweaking language.

Mr. Pernula said that if the Commission provided their clear intent, the City Attorney could arrive at the language.

Proposed language for Modification No. 1:

Mr. Beanés restated the new language, Page 3, Line 22, the Commission agreed to: "a continuous physical barrier composed of fencing and/or shrubbery that shall be 6 feet high and 95% opaque and that it be in the overall harmony with the neighborhood."

Mr. Bavard asked for other comments on the language.

Modification No. 2

Mr. Kendziorek pointed out a typographical error on Page 3, Line 13. "The Commission may authorize on any bond or…" He thought it should state, "The Commission may authorize a bond or….." He didn’t think that made sense.

Modification No. 3

Mr. Bruce referred the Commission to the bonus provisions, Section 49.65.540(a)(2). He wondered if the Commission really wanted to require a developer to change the nature of the surface or would marking the pathway suffice? Mr. Beanés indicated the intent of that section was for the pathway to be demarcated by utilizing a different surface material. For example, if concrete is the surface material, the pathway could be made with brick.

Mr. Bruce asked why painting or reflective striping be disallowed? Mr. Beanés pointed out that because these store sites were in close proximity to residential neighborhoods, a stripped pathway might not be aesthetically pleasing to the adjacent property owners.

Mr. Bruce suggested that the language in that section be changed to a less expensive requirement.

Mr. Beanés pointed out recent improvements to the Marine Park intersection where the developer used dyes and moulds that appear to be brick as demarcation for pedestrian crosswalks.

Mr. Bruce didn't think it was appropriate to prescribe future developers to use a different material.

Mr. Kendziorek agreed with staff whereas the intent was to achieve an acceptable aesthetic level for a commercial building in a residential setting. He also pointed out that the language was a bonus amenity where the applicant benefits by additional square footage.

Modification No. 4

Mr. Bavard moved the discussion along and raised the issue of storage usage on the second story. He suggested an addition to Page 3, Line 4, "a second story may be allowed for residential use and storage."

Mr. Kendziorek recalled that the Commission deliberately decided to disallow storage on the second floor because they didn't want a second floor warehouse in a residential neighborhood. He agreed that the storage space was necessary, but he specifically recalled stipulating that the second story not be used for storage.

Mr. Beanés added that the intent of the added bonus square footage provisions was for there to be an allowance for storage. The bonus amenity provisions are a tool for the applicant to use in exchange for additional square footage. He cautioned against Mr. Bavard's suggestion in that it detracts from how the Commission views floor area and accessory uses. If the primary use is a store, then 5,000 square feet includes the store area, storage and office space.

Mr. Pernula didn't think there would be a problem if the upstairs storage use were included into the maximum gross floor space of 5,000 square. It simply meant that the store would be vertical.

Mr. Bavard was concerned that in Juneau, stores build additional buildings for storage. If there were a way to provide on-site storage, it would be helpful to the retailer.

Mr. Beanés said that careful consideration to the commercial enterprise's scale was given simply because of the proximity to residential neighborhoods.

Proposed language for Modification No. 3

Turning back to his concerns about surface materials, Mr. Bruce proposed the following language to Page 5, Line 5, "indicated by a surface reasonably contrasted from the adjacent area."

Mr. Bavard added that the term "reasonably" would be determined under the Conditional Use permit process.

Mr. Bruce doubted that painting stripes would detract from the harmony of the neighborhood.

Modification No. 5

He also raised the bonus provision for acoustically screening. He noted that there wasn't a measurable base noted. Was it 100% acoustically screened or 50% acoustically screened? Mr. Beanés said CDD didn't consider a definition. Mr. Bruce suggested the insertion of "reasonably acoustically screened"

Mr. Beanés emphasized that since the commercial enterprise was adjacent to a residential zoned area, the intent was that every effort to screen both visually and acoustically so that the impacts are not borne by the neighbors.

Mr. Bruce understood that, but he thought blanket statements such as "visibly and acoustically screened" with no mention of parameters was too vague a statement.

Mr. Bavard asked for suggested language (for Modification No. 5).

Proposed language for Modification No. 5

Mr. Bruce stated, "reasonably screened visually and acoustically from adjacent residential property."

There were no comments or concerns to that language by staff of Commissioners.

Mr. Pernula asked for clarification on what modifications were accepted by the Commission. Were "surface reasonably contrasted from adjacent areas" and "reasonably screened both acoustically and visually" accepted?

Mr. Bavard said the Commission had accepted those two specific changes (Modification Nos. 1 and 4) and they would be included in the Motion.

Mr. Kendziorek asked about the second story storage amendment.

Mr. Bavard indicated that there was not a consensus regarding storage use of the second story and that amendment was dropped.

Mr. Kendziorek requested that all public comments including correspondence submitted to the Planning Commission after public testimony had been closed be forwarded to the Assembly for their consideration.

Mr. Bavard added that all drafts, correspondence and minutes be included in the packet to the Assembly.

Planning Commission action:

MOTION - by Mr. Kendziorek that the Planning Commission forward draft Ordinance TXT2001-00004 to the Assembly along with minutes, letters from the public, comments and previous drafts including the consensus changes of November 27, 2001:

There were no objections and the Motion was approved and TXT2001-00004 was forwarded to the Assembly.




RSH Subdivision III, a Preliminary Plat to create 32 lots from 3 existing lots, Lots 1,2, and 3, RSH Subdivision II, in the Lemon Creek area.

Location: 1810 ANKA ST

Staff report: CDD Planning Supervisor Oscar Graham read the staff report into the record.

Staff recommendation:

We recommend that the Planning Commission adopt the director’s analysis and findings and grant the requested preliminary plat approval for the proposed RSH Subdivision III, including the waiver of street construction requirements for the extension of the Anka Street right of way according to §49.35.130(d) (6).

The approval is subject to the following conditions:

  1. The applicant shall provide a rehabilitation plan for the stream bank associated with Lot 3 and 2A of RSH II consistent with CBJ §49.70.950 (e) including the removal of debris/abandoned machinery/vehicles, grading and stabilization of banks, related clean up activities, the preservation and restoration of riparian vegetation and approval by the Alaska Department of Fish and Game and Community Development Department. The plan shall be submitted to the Community Development Department and implemented or bonded prior to plat recording.

  1. The applicant shall provide a plat note indicating the 100-year flood boundary according to The Federal Emergency Management Agency flood insurance program mapping and that development may be subject to development regulations for flood Hazard. Wording of the plat note is subject to Community Development Department approval.
  2. The applicant shall provide a plat note on the final plat that advises Lemon Creek is a designated stream corridor and that development may be subject to setback requirements. The stream setback or ordinary high water boundary should not be indicated on the plat. Wording of the plat note is subject to Community Development Department approval.
  3. The developer shall submit plans for utility services and drainage. Any required shall be designed and completed in accordance with the CBJ and other applicable standards, as determined by the CBJ Engineering Department.
  4. The final plat shall incorporate the consolidation of Lots 18 through 21 into one parcel.
  5. Consistent with CBJ §49.35.210 the applicant shall indicate on the final plat the extension of the Anka Street right-of-way to the boundary of Lot 2B, RSH Subdivision II.
  6. The applicant shall adjust current lot dimensions, or provide easements, to accommodate a revised parking layout for the building on proposed Lot 9, if necessary.

Mr. Sanford asked what had been decided with regard to utilities. Mr. Graham said that the utilities had not been "stubbed in" all the way to the lots yet and there had been questions about how the delivery of utilities to each lot would be provided. CBJ Engineering indicated that utilities could be provided to each lot or through the consolidation of several lots or through bonding.

Mr. Kendziorek asked staff to confirm that both the final plat approval and future development on the lots would still come before the Commission at a later date. Mr. Graham affirmed that the Commission would hear the final plat approval and Allowable and Conditional Use permits would be heard by the Commission. However, there may be uses that are allowed by departmental approval.

Mr. Sanford asked which party is responsible for the completion of Ralph’s Way. Mr. Graham indicated that as a result of the plat’s approval, Ralph’s Way would be dedicated and then the applicant would complete that project.

Mr. Bavard opened this item to public testimony.

Jan Van Dort, represents the applicant, Aniakchak, Inc. He suggested that instead of showing the flood plane boundary that the correct building elevation appear on the plat. As well, Mr. Van Dort believed the flood plane issue must be addressed at some point. Thirty years ago, the elevation of Lemon Creek was much higher and it would even spill over into the area that Costco now sits. Following years of gravel extraction from the stream, the elevation has gone down. Regardless, the flood plane maps have not been revised since 1982 and no longer reflects reality. The situation is similar to having to get a hillside endorsement for a hill that is no longer in existence. In closing, Mr. Van Dort stated that Aniakchak, Inc. accepted the staff’s findings and recommendation and he thanked CDD for their hard work on this issue.

Carl Schrader, is a biologist for the Alaska Department of Fish and Game’s Habitat Division. He wanted to address the streamside setback issue. Mr. Schrader summarized comments that ADF&G’s Ben Kirkpatrick had submitted for the October 10th, hearing.

Lemon Creek is an impaired water body that has problems with sediment and turbidity from polluted run-off. The goal is to improve the water quality rather than create further hardships. While he applauds the applicant’s work to improve the stormwater management, only the buffering in the streamside setback protect the creek from the backside of Mr. Van Dort’s building. Turning to Mr. Kirkpatrick’s letter, Mr. Schrader urged that the Ordinary High Water mark (OHWM) is established using the ADF&G’s legal definition. He was concerned that a precedent may be made by not using ADF&G’s definition for determining a streamside setback.

No one else from the public wished to testify and Mr. Bavard invited the applicant to make his closing remarks.

Jan Van Dort stated his understanding that the OHWM issue had been settled at the last hearing. If this issue was going to be revisited, he wanted to stop the proceedings.

Mr. Kendziorek indicated that Mr. Van Dort might need to do that. He recollected that at the last hearing, the OHWM was unequivocally not settled. He recalled that OHWM was settled for only one particular lot and for its particular development. Mr. Kendziorek recalled asking if the same line (for measuring Ordinary High Water) would be used as the other lots were being developed. He recalled staff making it clear that this would be dealt with on a case-by-case basis as the applicant brings forth each development requests. Mr. Kendziorek cited CBJ Attorney John Corso’s opinion that Planning Commission actions do not set a legal precedent. Today’s Planning Commission is not bound by the actions of a previous Commission. The reasons for approving a permit of any kind at a previous meeting does not set precedence for a similar application at a future meeting. He was uncomfortable with the applicant's assertion that OHWM had been resolved when it was not.

Mr. Bruce said the Subdivision Review Committee discussed the grading the lots that adjoin Lemon Creek so that they drain into the storm system that was installed. He asked staff to clarify whether or not the staff report indicates that water would drain into Lemon Creek.

Mr. Van Dort explained how the individual lots would be graded so that all drainage would flow towards the CBJ’s catch basins. It would be the CBJ’s responsibility to maintain the catch basins. Mr. Van Dort returned to the issue of the OHWM and explained that a developer needs to have some sense of where the line would fall. In his situation, Aniakchak relied on the CBJ’s determination when they installed the road and utilities. He thought there ought to be a procedure for an applicant to submit an integrated development proposal so that a developer doesn’t get different results from the planning staff at various stages of a project’s development.

Public testimony was closed.

Planning Commission action:

MOTION - by Mr. Kendziorek that the Planning Commission adopt SUB2001-00034 including staff’s findings, analysis and recommendations.

Mr. Kendziorek proposed a change to Recommendation No. 4:

  1. The applicant shall provide a plat note on the final plat that advises Lemon Creek is a designated stream corridor and that development may be subject to "Title 49 habitat-based" setback requirements. The stream setback or ordinary high water boundary should not be indicated on the plat. "The Ordinary High Water Mark definition shall be the one used by ADF&G to protect anadromous stream habitat." Wording of the plat note is subject to Community Development Department approval.

Mr. Bavard asked if the language is more appropriate for a final plat?

Mr. Kendziorek indicated that if so, the language could be included during the final plat review as well.

The proposed language concerned Mr. Bruce. Should the Planning Commission accept the modified language, they were, in fact establishing a precedent that would bind future Commissions. He also wanted to hear the applicant’s comments before action.

Mr. Bavard noted that the lack of an OHWM definition in Code must be addressed for the community. However, he didn’t think it was appropriate to resolve the deficiencies of the Land Use Code at this hearing. He preferred to leave the wording of Condition No. 4 as-is and hold public discussions with proper notice at a later date.

Mr. Kendziorek wished that the Commission and the developers had an established definition for Ordinary High Water, but unfortunately they did not. In this case, he suggested that the Commission provide the applicant with direction so that he knew what to expect in the future. The Alaska Department of Fish and Game had a good habitat based definition of OHWM and it was appropriate to apply that. However, he would accept a friendly amendment:

" that the definition of OHWM noted on the plat would be superceded by any definition that is ultimately adopted by the CBJ."

Mr. Bruce added the balance of the previous discussion. He recalled from the previous hearing the applicant had relied on the CBJ's acceptance of all the development plans by investing a substantial amount of money. Once the applicant installed the infrastructure and roads, changing the rules midway through the project was unfair. He likened this situation to ex post facto law where the rules are changed after reliance.

Mr. Bavard characterized the relationship that the CBJ and the applicant had with regard to this project as a joint venture.

Mr. Kendziorek disagreed. He believed that the Commission's job was to assess each final review and act in its quasi-judicial role to make a good determination.

Mr. Bruce argued that in the case at hand, the applicant had relied on the rules to his detriment. Essentially, the CBJ would be telling the applicant that all of the expensive infrastructure must now be dug out of the ground and moved because the rules have changed. This raised concerns about the applicant’s due process rights and it was quite different from an applicant who requests a Variance but is turned down.

Mr. Kendziorek offered a compromise by withdrawing the sentence on OHWM definition so long as the Title 49 habitat based setback requirement remains.

Mr. Bavard asked staff to comment. Mr. Graham said that Condition No. 4 would be predicated on the habitat provisions of Title 49 as Commissioner Kendziorek suggests. However, staff felt that the original language of Condition No. 4 was worded such that future building permits could be conditioned based upon the habitat provisions of Title 49. Mr. Graham noted that the definition selected by the Commission over a year ago was very similar to the Kirkpatrick memorandum that Mr. Schrader summarized.

Mr. Bavard recapped that Mr. Kendziorek's concerns are already addressed by the existing wording of Condition No. 4.

Mr. Kendziorek preferred to leave the re-wording in the Condition and he read the Motion with the amended wording for Condition No. 4:

  1. The applicant shall provide a plat note on the final plat that advises Lemon Creek is a designated stream corridor and that development may be subject to "Title 49 habitat-based" setback requirements. The stream setback or ordinary high water boundary should not be indicated on the plat. Wording of the plat note is subject to Community Development Department approval.

Roll call vote:

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

With a vote of 3 to 2, the Motion failed.

Vice-Chair Bavard called a 5-minute recess at 8:45.

After the meeting was called back to order, Mr. Bavard announced that the Motion failed to pass.



There was no objection the Motion and Vice-Chair Bavard announced that SUB2001-00034 would be calendared for reconsideration of a vote at the next meeting.





Mr. Pernula reported on the status of the requested changes to the Comprehensive Plan. He is reviewing the document and is preparing a simplified document to present to the Assembly. Because of the Assembly’s heavy workload, the expected date for Assembly review is early January.

Mr. Pernula noted that often times long range planning falls prey to the day to day tasks of permitting. To address that dilemma, he wanted to meet with the Commission at a goal-setting event to afford the body an opportunity to develop priorities.

Mr. Bruce thought that arriving at uniform rules was critical to a fair process and he urged Mr. Pernula to proceed. He noted parking planning as another example of an important long range planning task that has been set aside.

Mr. Kendziorek urged Mr. Pernula to locate and review a parking study that was presented to the Commission near the time of his appointment.

Mr. Sanford said that in February, 2000, the Commission voted to change the Urban Service Area boundaries in North Douglas. He did not believe that had ever been forwarded on to the Assembly and he asked staff to follow-up and report back.

Mr. Pernula advised that several controversial permits were scheduled for the December 11, 2001 meeting. First, the Juneau Christian Center's Variance request and also the Herbert River gravel extraction permit.

Mr. Bavard asked what progress had been made between the church board members and the neighbors and whether or not CDD staff was involved in the resolution. Mr. Graham reported that the project had been altered somewhat to eliminate some of the height, however, the church still exceeded limits. He thought that some progress had been made with some neighbors but he did not expect consensus. CDD staff had been in contact with the applicant but had not participated in a facilitative way.


Mr. Bavard noted that the Subdivision Review Committee met and discussed the Aniakchak proposal.


Mr. Sanford commented that the CBJ's relationship with DOT has been edgy in recent months. To facilitate a cure, he proposed that the Commission draft a letter of reconciliation.

Mr. Bavard agreed with the characterization. The Old Dairy Road project review was the crisis point where both DOT and CBJ staff share responsibility in the lack of communication and information flow.

Mr. Sanford asked about the golf course. Mr. Graham reported that meetings have been ongoing and he's heard some conciliatory language on the part of the regulatory agencies. A site visit is scheduled and more will be known later in the week.

Mr. Bavard acknowledged that Jan Van Dort had returned to the meeting and he explained the rules that govern a Motion for Reconsideration for his benefit. Noting that the applicant wanted to speak, Mr. Bavard recognized him.

Mr. Van Dort indicated that he would be out of town for the December 11, 2001 meeting and he had a suggested a resolution. Following a short discussion with Oscar Graham and Carl Schrader, Mr. Van Dort was prepared to agree to Mr. Kendziorek's wording with a reasonable caveat. Mr. Van Dort accepted the wording and he would be willing to deal with future lot development on a case by case basis. He advised the Commission that he anticipated only one problem lot in the project and he was willing to argue that case later. The one lot was very small and he anticipated needing a Variance prior to its development. However, tonight, he needed to move forward with the plat as financing and development plans depended upon the outcome of this evening's review.

Mr. Bavard asked staff if it would be appropriate to go up the Agenda in order to act on the wishes of the applicant.

Mr. Pernula noted that the Motion for Reconsideration was the last motion made.

Mr. Bruce suggested that the Commission vote to suspend the rules so that the Motion for Reconsideration can take place immediately rather than at the next meeting.

Mr. Bavard proposed that the Reconsideration question would be, "whether or not to go back and hear SUB2001-00034 and be at the point of a Motion. " Mr. Bavard called for a Motion.

Planning Commission action:

MOTION - by Mr. Kendziorek to hear SUB2001-00034 at the point of the Motion.

There was no objection, and it was so ordered.

MOTIONby Mr. Kendziorek, that the Planning Commission adopt SUB2001-00034 including staff’s findings, analysis and recommendations with one change to Condition No. 4, that the words, "Title 49 habitat-based" be inserted before "setback requirements" in the first sentence:

  1. The applicant shall provide a plat note on the final plat that advises Lemon Creek is a designated stream corridor and that development may be subject to "Title 49 habitat-based" setback requirements. The stream setback or ordinary high water boundary should not be indicated on the plat. Wording of the plat note is subject to Community Development Department approval.

Roll call vote:

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

With a unanimous vote, SUB2001-00034 was approved with the noted changes.


MOTON - by Mr. Bruce to adjourn.

There was no objection to the motion and Vice-Chair Bavard adjourned the meeting at 9:15 p.m.