MINUTES
PLANNING COMMISSION MEETING
CITY AND BOROUGH OF JUNEAU
Johan Dybdahl, Chair
REGULAR MEETING
January 22, 2002


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: Dan Bruce, Johan Dybdahl, Maria Gladziszewski, Marshal Kendziorek, Mark Pusich, Merrill Sanford, Jody Vick

Commissioners absent: Mike Bavard

A quorum was present.

Staff present: Dale Pernula, Director, CDD; Tim Maguire, CDD Planner; Oscar Graham, CDD Planner, Sam Kito III, Transportation Planner

 

II. Approval of Minutes -

January 8, 2002 - Regular Meeting

Motion - by Mr. Kendziorek to approve the minutes of January 8, 2002 as written.

Hearing no objection, it was so ordered.

III. PUBLIC PARTICIPATION ON NON-AGENDA ITEMS - NONE

IV. RECONSIDERATION OF THE FOLLOWING ITEMS - NONE

V. CONSENT agenda - NONE

VI. CONSIDERATION OF ORDINANCES AND RESOLUTIONS

VII. UNFINISHED BUSINESS

VIII. REGULAR AGENDA

USE2001-00049

A Conditional Use permit for a 40,250 square foot geoduck and littleneck clam aquaculture site in the state-owned tidelands in Bridget Cove, across from Mab Island.

Location: BRIDGET COVE

Applicant: THOMAS MANNING

Staff report: Oscar Graham presented the report prepared by CDD Planner, Teri Camery. He demonstrated the project area and site conditions of the proposed clam farm with a PowerPoint presentation. The proposal consists of planting geoduck spat in 4 by 10 inch PVC tubes below the 0.0 to the minus 3.5 foot tide levels. The tubes are then covered by plastic mesh, which allows food to circulate while keeping predators out. Littleneck clams will be seeded between the geoduck tubes but only in the top 50 feet of the farm in the higher tidal zone where they occur naturally. The original farm site had been moved 100 feet south beyond the Mean Lower Low Tide in order to respond to DNR concerns about public access to the upland area and with sport fishing opportunities off of the rocky point. As well, the project plan was modified somewhat to accommodate an eel grass bed in the vicinity of the project site.

Mr. Graham explained that the Table of Permissible Uses stipulates that aquaculture in Rural Reserve locales require a Conditional Use permit. In addition to the CBJ permit, the Corps of Engineers required a permit for the placement of the clam farm in navigable waters and an ADF&G permit for aquaculture projects and a DNR tideland lease were also required as it is a commercial project. The permit was reviewed under the provisions of the Juneau Coastal Management plan; however, the project's final Consistency Review would not be issued until after the issuance of the Conditional Use permit by the CBJ.

Staff recommendations: That the Planning Commission adopt the director's analysis and findings and grant the requested Conditional Use permit, which would allow the development of a 40,250 square foot geoduck and littleneck clam farm on state-owned tidelands in Bridget Cove across from Mab Island. The approval is subject to the following conditions:

  1. Access to the site shall be by boat only unless the applicant has obtained a commercial use permit from the CBJ Parks and Recreation Department. Project approval by the Planning Commission does not require the CBJ Parks and Recreation Department to provide access through the park.
  2. Pursuant to JCMP §49.70.930(a), aquatic-farming activities may not be conducted in eelgrass beds. Eelgrass beds must be mapped by the applicant and marked with 10-foot buffers for exclusion before planting disturbs the site. Eelgrass extent in and near the site must be monitored via annual mapping during the course of the project. If the annual mapping of eelgrass indicates expansion of the eelgrass beds, the applicant shall be required to adjust the project site to meet minimum buffering requirements.
  3. Pursuant to JCMP §49.70.930(a), on-site farm work will not be allowed during the peak herring spawn time period of April 16 to May 15. Herring eggs must not be disturbed or removed. If eggs are present, the on-site work prohibition will continue until eggs are hatched in order to prevent damage to eggs from turbidity and siltation. All eggs must be allowed to hatch, even though this may result in a loss of aquatic farm products being cultured.
  4. Pursuant to JCMP §49.70.930(d), no wastes of any kind may be discharged or otherwise disposed of at the site. There shall be no on-site shucking or processing of aquatic farm products beyond sorting, washing, grading, and packaging. The applicant shall not leave additional equipment or debris unattended on site.
  5. The public shall continue to have access to plants, fish and wildlife resources, and shellfish other than the species being cultured at the farmsite to the extent that such access does not disrupt the operation of the farm, disturb the species being cultured, or damage any of the aquatic farm equipment or gear.
  6. If the project is expanded, including through the addition of a joint-use cabin or storage shed, the applicant must apply for another Conditional Use permit.

Mr. Kendziorek asked staff to point out where the public trail was in relation to the proposed clam farm.

Ms. Gladziszewski asked about Condition No. 2 and to whom the annual mapping will be reported. Mr. Graham explained that the ADF&G permit required mapping to verify that the eel grass bed had not migrated or colonized the clam farm itself. The ADF&G will receive the maps and reports.

Public testimony:

Thomas Manning: was the applicant and he described the nature and history of the project for the Planning Commission. Mr. Manning described how the clam farm would be organized and planted and he discussed the experimental nature of the geoducks in these northern waters. The project would be carried out in quarter sections, which will be planted each year with both geoducks and little necks. He acknowledged that the geoducks were entirely experimental while the little necks are anticipated to be marginal. This is the first intertidal geoduck mariculture project in the state of Alaska, Mr. Manning explained. In fact, the predator control methods might be instrumental to the success of the mariculture project. He described the nets, PVC tubing, planting scheme and predator control techniques proposed for the clam farm. He emphasized that the mariculture project is well below the zero tideline and the project will be virtually invisible. The exceptions, when the tides do not cooperate would be in the summer months. There might be a window of four hours in the very early morning for about a week per month from May through October when the tubing may be visible. Following that period, the minus tides rotate to the evening hours. Mr. Manning explained that floats are not a part of the project but the several buoys would appear no different than those that mark crab pots.

Mr. Manning’s hope was to create a viable clam farm where geoducks and littlenecks could be cleared for PSP, processed and shipped live. The value of this type of product is one quarter the value of a frozen product. With a live geoduck farm, PSP testing would take place and harvesting would occur once the tests came back clean. Production near a transportation hub would be critical to the viability of the clam farm. The site selection process was very involved and he hoped that the Bridget Cove site would meet the specifications of the Planning Commission. The immediate area surrounding the site is void of clams and he thought that it would have the least impact on the public's use of Bridget Cove. He reported that the PRAC supported the project and its use of the tidelands. The state expressed concerns but each time, a resolution was achieved by adjusting the site plan. The Juneau Fish and Game Advisory Board raised eelgrass at two of their meetings. In response, the site plan was adjusted once more to accommodate a small section that encroached into the clam farm. Mr. Manning explained that avoiding eelgrass was also in the best interest of a commercial geoduck farm as the eelgrass negatively affects the color of the clams.

Mr. Manning said the project fits into the economic diversification that makes sense for Juneau. He said that most studies indicate mariculture projects benefit an area. The Department of Fish prescribes harvesting activities and Game and they would have the least impact possible upon the environment. He assured the Planning Commission that 99% of the time; his mariculture project would be invisible to the public from the beach. The buoys won't appear any different from those that mark crab pots. He thought that this commercial project was a "natural" for the area in that the impacts would be most minimal. Mr. Manning distributed photos of the site for the commissioners to review and he made himself available for questions.

Mr. Kendziorek asked Mr. Manning to confirm that his harvest methods had been specified by the Department of Fish and Game. Mr. Manning explained that ADF&G's directions were specific to the point where they directed which types of tools could be used.

Mr. Kendziorek raised the issue of a "hold harmless" clause for boats that might anchor in the area and inadvertently damages the clam farm. Mr. Manning indicated that that notion was raised in a letter and it did not originate with ADF&G.

Mr. Kendziorek noted that eelgrass beds were renown for their migration habits. He wanted the applicant to be certain as to the risks the migrating eelgrass posed for his venture. Mr. Manning was aware but didn't think any mariculture project was immune from that risk.

Mr. Pusich asked how often would the farm need tending following the initial planting. Mr. Manning said the geoducks would be harvested in two years and the little necks would be harvested after three years. He didn't plan to work the farm unless there was a minus tide. Once gathering was underway, the level of PSP would dictate the intertidal work.

Mr. Vick asked what the yield of a facility this size is expected to be. Mr. Manning said that the Washington State Fish Hatchery claims a 90% return. The two commercial operations in Washington claim a 50% return although they do not face the same water conditions that occur in and around Juneau.

Mr. Kendziorek referred to public opposition to the clam farm. Staff commented that the decision was a matter of policy but he wondered why staff didn’t address the public opposition under Criteria 5: neighborhood harmony. Mr. Graham said that the staff report discussed the commercial use in conjuction with CBJ parklands. The policy issue focused on the broader public trust issue of using public lands for commercial uses. However, under the Table of Permissible Uses and the JCMP, there was fairly strong support for this type of project.

Mary Lou King, is the Chair of the Taku Conservation Society. The Taku Conservation Society built most of the public use trails in the Bridget Cove State Recreation Area. She disagreed with the notion of commercial use on a natural beach. She questioned whether this would create a precedent for commercial use on all Juneau beaches. She disagreed with the applicant's contention that the beach was not heavily used. It was heavily used and it was one of the few beaches that were sewer-free. She wondered how the applicant could protect the clam farm from human predators let alone the diving ducks. Many questions remained unanswered and she urged the Commission to delve in deeper into the potential impacts on the community.

Mr. Kendziorek assured Ms. King that the actions of the Planning Commission do not set future precedents. He noted that the applicant had taken the proposed cabin off the table. Should he seek to add a cabin, he must first obtain a permit from the Planning Commission in much the same process as is occurring now.

Jim Shoales, is a member of the executive board for the Juneau and State Chamber of Commerce. He noted that Juneau is looked upon as a leader in the state. If Juneau cannot permit a simple, zero-impact project such as this clam farm, the entire state would wonder why. Mr. Shoales also served as a commissioner on the Parks and Recreation Advisory Committee. That committee heard hours and hours of public testimony regarding this project and in the end, the clam farm received overwhelming support by the PRAC.

Peter Andruss, thought that mariculture in the Juneau area was a great idea. He thought Mr. Manning's project had few impacts, was well planned and seemed viable. He supported these types of projects.

Scott Busich, 4301 Riverside Drive, quoted sections from the staff report that dealt with the Juneau Parks and Recreation Comprehensive Plan of July 1996. He noted that no mention was made to the inclusion of private use or industry on the publicly owned land. He argued that the site was a semi-primitive park set aside for recreational use by the pubic. He didn’t understand how digging up the dirt for personal/private gain was consistent with the Parks and Recreation Comprehensive Plan. Mr. Busich said that he and his family use the area in the vicinity of the clam farm. He valued the fact that this quiet portion of Bridget Cove was made up of silty sand where his kids could swim while other sandy beaches were fraught with glass, litter and people. He was put out that he wouldn't be able to show his children the difference between barren, desolate silt and the adjacent rocky areas that were filled with animals if the clam farm is permitted. How did Mr. Manning's private use of the public land fit within the context of the CBJ's land management plans, Mr. Busich asked.

Jack Manning, spoke in support of mariculture projects. He too was a frequent user of Bridget Cove. He engaged in hiking and kayaking in the area, but rarely did he clam. The project was not in conflict with his uses as the project was located below minus tide. He urged the Planning Commission to support mariculture in general.

Kim Knight, thought that Mr. Manning's project would be positive for Juneau. The community needed economic diversity and he could not foresee any negative impacts whatsoever.

Josh Yerkes, is a teacher in Juneau. He spends his weekends and summer months fishing, kayaking, scuba diving, camping and hiking. If the farm had any impacts on his access to Bridget Cove, he would be 100% opposed to it. However, Mr. Yerkes supported the farm as it would be underwater and completely out of his view. He thought that Juneau needed this type of economic diversification especially in light of the threat of the capitol move initiative.

Nancy Waterman, 227 Gastineau Ave., appreciated the suggestion that a clause be included that holds the City harmless in the event that property damage to the clam farm occur. She also suggested that the project may be so experimental to justify a sunset provision or a bond if the project did not fair well.

Thomas Manning, the applicant, came forward to address Ms. Waterman's suggestions. ADF&G will continuously monitor the project to verify its viability. If at any point the department determines the project is not viable, Mr. Manning would be given a certain number of days to remove the facility and return the site to its undisturbed condition. He assured the Commission that AFD&G's monitoring would suffice.

Mr. Kendziorek asked the applicant if he objected to placing an expiration date on his permit similar to his ADF&G permit. Mr. Manning didn't see that any positive benefits would result from an expiration clause.

Mr. Bruce noted that if ADF&G or DNR pulled their permit, the CBJ Conditional Use permit would be without value as well. Mr. Manning agreed. The permitting for use of state tidelands is conducted through the state departments. As well, the City of Juneau has chosen to use a Conditional Use permit process to answer whether or not the project is consistent with the Juneau Coastal Management Zone project. If the state pulls its permits, the Conditional Use permit also disappears.

Public testimony was closed at 8:15 p.m.

Planning Commission action:

MOTION: by Mr. Vick, to accept staff's analysis, findings and recommendations and approve USE2001-00049.

Mr. Kendziorek spoke in favor of the motion. Mariculture is a good thing for the community and the local economy in general. He was concerned about the multiple use of the site, but he was satisfied that the project would go largely unseen. While the existence of a clam farm at Bridget Cove did not add any benefits to the natural environment, it did not detract from it in any way. He thought it was a good project.

Ms. Gladziszewski understood the concerns and worries expressed about a commercial enterprise taking place in a natural area. She emphasized that the Planning Commission was permitting a specific project at a specific location and it was not issuing a blanket endorsement of commercial ventures in parklands.

Mr. Pusich spoke in favor of the motion as well. He complimented staff on a well-prepared report and he cited the revisions made by the applicant in the interest of mitigating public concerns among the reasons for his support. As a user, he did not think the clam farm would be visible from the beach.

Roll call vote:

Yeas: Bruce, Dybdahl, Kendziorek, Gladziszewski, Pusich, Sanford, Vick
Nays:
Absent: Bavard
On a vote of 7:0, the motion was approved.

At 8:35, Chair Dybdahl adjourned as the Planning Commission and reconvened as the Board of Adjustment to hear the next item on the Agenda.

IX. BOARD OF ADJUSTMENT -

TXT2002-00002

A request to the Planning Commission to interpret the Land Use Code per §49.20.300-320 to allow development of a building for the Alaska Bureau of Vital Statistics in the Industrial Zone (Previous case number INQ2001-00053).

Location: 5441 COMMERCIAL BLVD
Applicant: DIRK LOVIG

Mr. Bruce disclosed that five or six years ago, he represented Mr. Lovig on an individual matter. He had never been retained to work for Alaska Stone and Concrete nor did he have a personal dealings with Mr. Lovig in recent years. Chair Dybdahl determined that no conflict existed and Mr. Bruce remained on the panel.

Staff report: CDD Planner, Tim Maguire briefed the Planning Commission on the issue before them. The State of Alaska issued an RFP to seek a long term lease proposal for a new building to house the Bureau of Vital Statistics (BVS). A number of proposals were submitted and the State selected Alaska Stone and Concrete's proposal. One of the parties that submitted a proposal, but was not selected, asked the Community Development Department for interpretation of the Land Use Code regarding zoning compatibility. Specifically, the question was asked if the use described for the BVS would be allowed in I, Industrial zoning. Based upon the description provided in the RFP, it was determined that the use was an office-type use, and by itself was not allowed in the industrial district. After that interpretation was made, the selected party asked CDD to reconsider. The applicant followed up by providing a much more detailed plan and has asked that the Planning Commission interpret the Code.

The question being: is the BVS, because of its unique characteristic, a use not listed in the Table of Permissible Uses and should the Planning Commission make a determination that its use is similar to one of three other land use categories suggested in the Table. If it is determined to be similar to one of those uses, then it is treated the same as if it were listed in the Table.

After reviewing the latest description, CDD staff maintains that the use falls into category 3.40, a mix of clerical and office use. On the contrary, the applicant suggests that the use is similar to three other uses: 1) category 4.00, industrial; 2) retail use with outside merchandising; 3) 3.200, a category where office use is permitted in an industrial area, so long that it is less than 50% of an otherwise existing industrial use.

Mr. Maguire explained the applicant's assertion that in the case of the BVS, the records storage is proposed as the industrial use and the other office-type activities would be allowed. CDD disagreed because the records are updated and handled on a regular basis.

In a letter dated January 22, 2002, the applicant requests that the Planning Commission consider another use category: 10.200, storage use in an enclosed building. However, staff disagrees with that proposal as well.

Findings & Recommendation:

FINDINGS:

Based on the analysis above the Director finds that:

1. The use described for the Vital Statistics Bureau building falls under the use Category 3.400 of the Table of Permissible Uses.

If the Planning Commission agrees with the applicant that the BVS operation is unique and that it does not directly fall under any use listed in the TPU, the Director believes that the most similar use category is still 3.400 and would make the following finding:

2. The use described for the proposed Vital Statistics Bureau building is most similar the use Category 3.400 of the Table of Permissible Uses.

RECOMMENDATION:

Staff recommends the Planning Commission adopt the analysis and finding number 1.

Mr. Pusich referred to the applicant's letter of January 18, 2002 and he asked if staff concurred with the applicant's breakdown of square footage for the common, industrial and office space. Mr. Maguire said that CDD concluded that the office/clerical use would exceed the storage use. As well, CDD did not consider the "storage use" to be industrial use. The storage use of the BVS is different. The records are handled and processed by office workers on a regular basis. If the vault and storage use were considered industrial, the applicant's square footage is still flawed because they list research and retail space as industrial. CDD contends that those uses are office uses.

Referring to the same letter, Mr. Kendziorek wondered if conference rooms, break rooms and bathrooms were considered office space rather than common space. Mr. Maguire indicated that if both the public and the workers use, then it would be broken down by percentages of use.

Mr. Vick thought there were a variety of buildings already in the area. Why was this structure so heavily scrutinized? Mr. Maguire said that many uses were allowed. For example, if office use was an accessory to the industrial use, that was allowed. As well, retail use is allowed by Conditional Use in an industrial area. In 1987, the Code changed so that more restrictions were placed on the mixed use in industrial zones.

Mr. Kendziorek asked why the BVS would not be considered a retail use. Mr. Maguire explained retail use to mean that goods were on display and the public come in and purchase. In the case of BVS, the public receives a service. The applicant made a case that record keeping was the primary use, but CDD staff interpreted that to fit in the clerical use.

Ms. Gladziszewski asked why the Code was changed in the 1980's. Mr. Maguire said previously, an industrial zone allowed almost any use which resulted in numerous complaints. In response, the Commission decided to separate the uses somewhat.

Mr. Kendziorek asked if a Variance would be appropriate for this situation. Mr. Pernula said that use Variances are not normally acceptable. If the Planning Commission determined that office use should be a permitted as a conditional use in an industrial zone, then the Code should changed to reflect that.

Mr. Bruce thought that the BVS facility was unique. He considered the use to be a combination of storage and retail sale (of records). He noted that much of the work was record intake, processing for storage and then storage. Mr. Maguire noted that updating records was the main activity for the BVS. He recalled that BVS fielded approximately 20 customer service trips per day.

Mr. Bruce asked how that was different from a warehouse. Mr. Maguire said that the BVS employs 22 people who constantly process or use the records. In contrast, storage implies that the materials receive no processing or onsite use.

Public testimony:

Dirk Lovig, 1751 Anka Street, is the applicant and owner of Alaska Stone and Concrete.

Mr. Lovig began by thanking Mr. Maguire and Mr. Graham for their cooperation and he appreciated their expeditious handling of his case. As Mr. Maguire explained, Alaska Stone and Concrete's bid award was protested by the second place bidder and the State of Alaska awaited a resolution. He explained that his bid proposed to build a building on his industrial property. The bid award was presented to CDD for evaluation in a clear effort to "shoe-horn" the project into a category not permitted, and in a clear effort to boot him from the award. The relief that the bid protestor sought was the award of the contract to build the BVS building. He claimed that CDD's original decision was based upon a verbal conversation with Larry Spencer, who represented the second bidder, Mr. Blanfield. Mr. Spencer's representation of the building's use was incorrect. It neglected to include some uses and it diminished other uses. Mr. Lovig had no part in CDD's original decision.

Mr. Lovig referred to Mr. Spencer's letter to CDD staff dated December 20, 2001. In that letter, Mr. Spencer specified the documentation that he provided to CDD on December 14, 2001 for their review. The letter indicated that the RFP would be delivered on December 18, 2001. He noted that December 18, 2001 was the day of the Tuesday morning staff meeting where his project was found not to be permissible. He argued that some square footage areas ought not to be considered "office." For example, the client room, reception area, and the supply room. Mr. Lovig also contended with Mr. Spencer's assertion that the vital statistics documents were "archives." Archives are earmarked for duplication and destruction and they do not require protective measures of a vault. Vital Statistics are irreplaceable and confidential documents stored in perpetuity. Contrary to what Mr. Spencer represented to CDD, in his own proposal to the state, he summarized that the storage and the vault was the heart and soul of the BVS building.

Since the CDD's original determination, Alaska Stone and Concrete submitted letters attempting to defend the primary function of the building, " to protect and secure the irreplaceable and confidential documents from the State of Alaska in perpetuity." CDD reviewed the submittals but was not convinced.

Mr. Lovig summarized the disagreement:

1. Can this be called storage;

2. If it is storage, is it storage with office over 50% (as defined under category 3.20).

Mr. Lovig argued that the function for the proposed BVS building is for storage. Is the office over 50%? Mr. Lovig noted that the BVS charts over $50,000 in sales per month. A substantial part of the building is dedicated to retail, clearly. As such, Alaska Stone and Concrete proposed yet another approach to application of the Code for this project:

10.200 Storage and handling of goods not related to sale or use of those goods on the same lot on which they are stored.

10.210 All storage within completely enclosed structures.

Mr. Lovig said that when he realized that under strict construction of the Code, Food Service of America, an existing use in the same industrial zone would be disallowed. He concludes that CDD has provided some flexibility in that area and he feels that his project is not been treated in the same manner. To illustrate his point, Mr. Lovig distributed pictures of the assorted buildings in the area that contain substantial office space, contain storage area and carry out on site sales. He asked for the same consideration and flexibility from the Community Development staff.

In conclusion, Mr. Lovig wonders what different result might have occurred were he give the opportunity meet with CDD staff. If he were allowed to provide an accurate representation of the use of the building, he might be allowed the same flexibility that CDD allowed to the other buildings. Now, the bar has been set so high and the interpretation so literal that the project fits in no category. He asks the Planning Commission for a "use not listed" interpretation of the Code. He reminded that the Board,

"may permit in any district, any use which is not specifically listed in the Table of Permissible Uses, but is determined to be of the same general character as those which are listed and permitted in such district.

Once such determination is made, the use will be deemed as listed as permissible."

Mr. Lovig asked the Board of Adjustment find that the project is most similar to and of the same general character as 10.210, "storage and handling of goods not for sale or use on that site and permissible under Allowable Use permit. His second preference would be to find this as the same general character as 3.200 with consideration to the varied use and office use with storage being the industrial use.

Mr. Lovig did not understand why staff went so far to disallow his building's use nor why they would not endeavor to find reasons to allow it.

Mr. Bruce asked if there had been discussions about the building fitting section 15.000, Miscellaneous Public and Semipublic Facilities? Mr. Lovig said he saw only post offices, airports and several others which didn't fit.

Mr. Bruce asked staff to comment on whether it would fit under the Miscellaneous category. Mr. Maguire said the subuses were self explanatory as to their uses.

Mr. Bruce thought 15.000 was a category that was wide open. Mr. Maguire said that the use must be listed, if its not, then it doesn't work. Mr. Bruce argued that it could be added under the "substantially similar clause. Mr. Maguire said that with a text change, the use could be added.

Mr. Bruce reiterated that Section 49.23.20, could the Planning Commission make a Finding that a facility such as this proposed is most similar to the public facility that a post office serves? A post office handles lots of documents, documents come in, they go out and people pay for the service received.

Mr. Maguire said that with a similar use, it must be stated. A new use requires a text change, but a similar use is treated as being allowed in that district. However, the use that is "most similar" must be stated. Mr. Bruce preferred "post office."

Mr. Pernula said that if the Planning Commission found that the use is most similar to that of a post office, a Conditional Use permit is required according to the Table of Permissible Uses. The issue of use would not be reargued, however.

Mr. Bruce asked if that translated to an additional delay for the applicant. Mr. Pernula said that the applicant must proceed with the Conditional Use permit process.

Mr. Bruce asked the applicant to comment. Mr. Lovig did not think that a Conditional Use permit represented any additional burden for his project.

Jeff DeSmet, is a building contractor and an adjacent property owner to Mr. Lovig's property. He speaks in support of Mr. Lovig's appeal to the Board of Adjustment. Reading from his letter, Mr. DeSmet said that the storage facility was in harmony with the industrial area. In fact, similar buildings already exist in the park and thought that the Commission did have the discretion to allow Mr. Lovig's project to proceed. Speaking as a builder, Mr. DeSmet was appalled that the second place bidder was allowed to manipulate staff to a point where the situation is exacerbated. He thought this amounted to sour grapes on the part of the protesting party.

Larry Spencer, 336 Highland Drive, represents the protesting party. Mr. Spencer explained the initial RFP process and the steps he took in order to locate a suitable site within the boundaries of the Borough. The State of Alaska issued the RFP and held a pre-bid conference where mandatory elements were outlined. These manditory items included adherence to Davis-Bacon wages, adherence to local codes, etc. Failure to comply with the requirements would result in a non-conforming bid. He explained that the CBJ was confronted by one of three bidders who tried to conform to the state's specifications. Mr. Spencer explained read the Code and determined that construction would likely be restricted to General Commercial, Light Commercial or possibly others, such as Waterfront Commercial or Mixed Use. He confirmed his findings with the planner on call early in the site selection process. After canvassing the Borough, he had difficulty locating the site that did not require demolition, problems with wetlands, etc. He emphasized that if proposals submitted by bidders two and three utilized vacant industrial land, their costs could have been reduced by $250,000 and either could have been a first place bidder. They followed the rules.

Mr. Spencer noted that the Planning Commission was making an effort to assist the appellant in finding conformity with the Code. However, he argued that a simple reading of the Code is necessary for fairness. The BVS building is office use. The workers are not warehousemen; they are clerks. The workers are not moving records around with forklifts; they are filing, photocopying and mailing. The reason for precluding offices in industrial zones is because in time, office use will limit industrial use. Separating office use from industrial use is a trend in the modern model of city planning, Mr. Spencer explained. He urged the Planning Commission to carefully consider the intent of the ordinance before tossing it out at Mr. Lovig's request. Mr. Spencer said that an examination of the plans for Mr. Lovig's building clearly show that more than 50% is office space. Nevertheless, CDD staff made their ruling based upon the RFP and they did not comment specifically on Lovig's proposal. Mr. Spencer also notified the State of Alaska that their specification of spaces and the use in the bid document violate local zoning laws. Now, Mr. Lovig must demonstrate to the State that his building is allowed in the industrial zone. Mr. Spencer merely requested, in writing, a CDD review of the State's specifications.

Larry Bauer, General Manager of Vintage Business Park, was the highest bidder and came in third place. He said the question was whether the proposed BVS building was office space or an industrial use. The intent of the RFP was for 9,000 square feet of office space. He objected to Mr. Lovig's characterization of common space as non-office space. He said the break room, bathrooms and conference rooms were behind locked doors where the public has no access to. In closing, Mr. Bauer assured the Commission that the building would be built in Juneau, so economic development was not threatened at all if Mr. Lovig’s bid was thrown out. Placing this office building in an industrial area and taking it away from more suitable uses was shortsighted for the development community.

Charlie Carlson, spoke in support of Alaska Stone and Concrete's proposal. Since buildings of this nature and use have already been permitted in the Industrial zone, this use can only be allowable. He cited §49.20.320, Uses Not Listed. It seemed that similar buildings in Lemon Creek had been permitted and so this building must be deemed as listed in the Table of Permissible Uses.

Mr. Pernula responded, if the Board of Adjustment finds that this building is similar to a post office, and determines that it is permitted (subject to a Conditional Use permit), the next time a vital statistics building comes along, CDD will automatically consider that to be a permitted use, subject to a Conditional Use permit. However, Mr. Carlson was correct, that as uses are uncovered, the Table of Permissible Uses should be updated.

Mr. Kendziorek cautioned that there was a symantics issue in play as well. Receiving a permit is different than stating that something is "a permitted use, according to the Table of Permissible Uses." The question is: "what is in the Table of Permissible Uses?" Does it fit, and can we make a determination that this particular use is substantially similar to what is listed in the Table. This is opposed to "is it substantially similar to some other building that is in the area? "

Mr. Carlson, reiterated the last sentence in §49.20.320, "Once such determination is made, the use will be deemed as listed in the Table of Permissible Uses."

Mr. Pernula clarified that if the Board of Adjustment determines that this use (BVS) is of the same general character as those listed uses, then the CDD will interpret any future uses of a vital statistics building will be considered to be classified.

Mr. Maguire added that the body must make that determination. So far, it has not done so.

Mr. Carlson noted that the Commission had not made that determination in this situation, but it had made that determination in other cases.

Mr. Dybdahl clarified that for whatever reason, a different determination was made for the other buildings.

James Young, commented on the testimony that he'd heard. He was concerned about Juneau's ability to project a business friendly face to the state. There seemed to be many factors involved in determining if a building is compatible but he thought that the BVS building would be compatible with the general flavor of the area. Juneau is facing the loss of the legislature and this type of antagonism does not help. He hoped that the Board of Adjustment could find a category for this building to fit in so that the project could move forward.

Murray Walsh, appears on behalf of Alaska Stone and Concrete. Mr. Walsh pointed to other uses that are allowed in Industrial zones. For example, day care and auto repair. He noted that the records in a normal office setting serve the function of that business. In the BVS building, the workers serve the records. He clarified that the question was not, "here is the vital statistics building description, which of our use categories is it most similar to?" The question actually before the Board of Adjustment is, "is it of the same general character as those which are listed as permitted in the district we applying in?" Its obvious that the proposed building is in the same general character to what exists in that Industrial zone so he urges the Board to adopt the findings stated in the applicant's letter. The only question left is what classification does the building fit with? Mr. Walsh suggested 10.210, storage.

Andrew Campbell, an employee of Arete Construction Company. Mr. Campbell speaks in support of Mr. Lovig's proposal. He noted that no one nearby the building has stepped forward to object and he urged the Board to find a way to make the project fit the Code.

Mr. Dybdahl called upon the applicant for his rebuttal.

Dirk Lovig, indicated that the State of Alaska awarded him the bid for more reasons than being the low bidder. Mr. Lovig explained that he was awarded the bid and he did not respect his competitors waging their objections in this public forum.

Chair Dybdahl closed public testimony and he called for a motion.

Board of Adjustment action:

Motion: by Mr. Bruce, that the Board of Adjustment reject staff's findings regarding the interpretation of the Table of Permissible Uses regarding this project. Instead, that the Board find that the project is a permissible Conditional Use under 15.100 of the Code.

Mr. Bruce spoke in support of the motion. He considered the BVS building to be a public facility and its closest use is a post office. The use is unique evidenced by the fact that it doesn't fit anywhere in the Code.

Mr. Kendziorek said that the other bidders is that they are being penalized for following the rules. They followed the Table of Permissible Uses but now the rules are being adjusted. He didn't like penalizing developers who didn't consider industrial land because their read of the Table, an office was disallowed. While the building is unique, anything else is a stretch. Mr. Kendziorek did not support the motion.

Ms. Gladziszewski agreed that it was too big of a stretch to consider the BVS building substantially similar to a post office when it seemed closest to an office.

Mr. Bruce asked staff if the Finding was made under 15.100, does the allocation of the space play a part? Mr. Pernula did not think it did. If the Board of Adjustment found that the building were most similar to a post office, under 15.100, then the allocation of the numbers does not really matter. Mr. Maguire concurred. The Vital Statistics Building would be determined by the Planning Commission as most similar to that use (in the Table of Permissible Uses) and the breakdown of square footage would not necessarily matter.

Mr. Vick agreed with Mr. Bruce.

Mr. Pusich thought that it was a tough decision. For him, the issue amounted to "what is the use of the building?" It is certainly unique in the community of Juneau. He also considers the uses of the surrounding properties and he felt that it was harmonious. He thought that the closest use would be a post office under 15.100 and he supported Mr. Bruce’s motion.

Mr. Kendziorek said the issue amounts to whether it was an office space a storage space with ancillary offices. Everything that he has reviewed indicates that the BVS building is an office space. Whenever he’s been in a post office, the bulk of the floor space is dedicated to a retail counter with a huge room for storage and processing of mail. There may be a small office for the post office manager, but certainly not similar to the number of offices in the vital statistics layout. The question before the Board of Adjustment is, "what is the VSB building most similar to?" Mr. Kendziorek argues that it is most similar to an office building, not a post office. It is not a question of harmonious use.

Mr. Bruce noted that the workers in the building serve the documents. This is a unique function for the public and that meets the intent of 15.100.

Ms. Gladziszewski agreed that this building would be harmonious with the surrounding buildings, however, that is not the issue. Since the building will be built in Juneau, she said that the Board of Adjustment should simply determine what zoning district was most appropriate. She did not believe that an Industrial zone is appropriate.

Roll call vote:

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

With a vote of 5 to 2, the Board of Adjustment overturned the Director’s recommendations on TXT2001-00002.

Mr. Bruce turned to the Findings. The use category 3.400 of the Table of Permissible Uses will be changed to 15.100; and the second paragraph under No. 1 is deleted. Again, the 3.400 is changed to 15.100. In addition, Mr. Bruce wanted language added that states: the building is public building and the closest use is a post office, in terms of the sorting, storing and transmitting of documents and records. As well, the vital statistics use is unique and doesn’t fit neatly under any other function in the Table of Permissible Uses given its function of storing, maintaining and retrieval of vital statistics.

1. The use described for the Vital Statistics Bureau building falls under the use Category 15.100 of the Table of Permissible Uses.

2. The use described for the proposed Vital Statistics Bureau building is most similar the use Category 15.100 of the Table of Permissible Uses.

Chair Dybdahl called for a vote on the Findings.

Roll call vote:

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

Again, with a vote of 5 to 2, the Findings were adopted.

X OTHER BUSINESS - None

XI. DIRECTOR'S REPORT

Mr. Pernula introduced Sam Kito, III, who was hired as the Transportation Development Manager. Mr. Kito will implement the Area Wide Transportation Plan as well as other transportation projects.

Mr. Pernula said that the convenience store ordinance was referred to the Public Works Committee for a hearing on February 13, at 5:30 p.m. The specific recommendations of the Planning Commission will be reviewed at that time.

The Commission asked why it had been referred to a committee rather than directly to the Assembly. Mr. Pernula said that additional public comments necessitated additional review.

Mr. Pernula called Commissioners attention to a summary of updates to the Code. He said that the Commission won’t be impacted as Title 49 was not modified by the Code clean-up project. The recent recommendations dealing with Ordinary High Water will be forwarded to the Assembly within the month. Mr. Pernula agreed to provide Commissioners with copies of the materials that will go to the Assembly.

He cautioned the Commission that the next meeting, February 12, will be a full agenda.

XII. REPORT OF REGULAR AND SPECIAL COMMITTEES - None

XIII. PLANNING COMMISSION QUESTIONS AND COMMENTS

XIV. ADJOURNMENT

Motion: by Mr. Vick to adjourn.

There was no objection to the motion and Chair Dybdahl adjourned the meeting at 10:30 p.m.