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HomeMy WebLinkAbout06032009 PACAB PacketPort and Commerce Advisory Board Rezular Meetin June 3, 2009 Regular Meeting City Council Chambers Beginning at 11:00 pin SEWARD PORT AND COMMERCE ADVISORY BOARD Regular Meetin June3,2009 Ron Long, Chair Board Member Tenn Expires 2011 Theresa Butts, Vice Chair Board Member Term Expires 2009 Deborah Altermatt Board Member Term Expires 2010 Daniel Oliver Board Member Term Expires 2010 Vacant Board Member Term Expires 2009 Darryl Schaefermeyer Board Member Term Expires 2009 Paul Tougas Board Member Term Expires 2011 Phillip Oates City Manager Kari Anderson Harbor Master Angela Buck PACAB Secretary NOON 1. CALL TO ORDER COUNCIL CHAMBERS 2. PLEDGE OF ALLEGIANCE 3. ROLL CALL 4. SPECIAL ORDERS, PRESENTATIONS AND REPORTS A. ARRC Representative Louis Bencardino B. Chamber Report Laura Cloward Executive Director C. Harbormaster Report — Kari Anderson D. Community Development Report- Christy Terry E. Board Member Butts report on "The Renewable Energy Alaska Project (REAP) is pleased to be hosting The Business of Cleun F.nerkry in Alaska: Bringing the Last Prontier to the Culting Edge" Attended on May 18 and 19, 2009 5. Citizens' comments on any subject except those items scheduled for public hearing. [Those who have signed in Will be given the first opporlunity to speak Time is limited to 2 minutes per speaker and 30 minutes total time for this agenda item.] 6. Approval of agenda and consent agenda JApproval of Consent Agenda passes all routine items indicated by asterisk (*). Consent Agenda items are not considered separutely unless a Board Member so requests. In the event of such a request, the item is returned to the Regular Agenda.] City of Seward, Alaska PACAB Agenda May 6, 2009 Page I 7. UNFINISHED BUSINESS- None 8. NEW BUSINESS A Discuss fundamentals elements of an action plan to implement "options 4 and 5" as outlined in the Northern Economics Feasibility Study as presented in the May 18. 2009 work session.............................page 3 R Schedule a PACA13 Work Session with the Planning and Zoning Commission to discuss the code updates to Title 15 for June 17, 2009 at noon in the City Hall Conference Hall C *May 6, 2009 Regular Meeting Minutes 9. CORRESPONDENCE, INFORMATIONAL ITEMS AND REPORTS (No action requi red)- 10. BOARD COMMENTS I L CITIZEN COMMENTS [5 minutes per individual - Each individual has one opportunity to speak. J 12. BOARD AND ADMINSTRATIVE RESPONSE TO CITIZENS'COMMENTS 13. AD.JOURNMENT City of Seward, Alaska PACAB Agenda May 6, 2009 Page 2 AGENDA STATEMENT Date: To: Fro m: Subject: June 3, 2009 Port and Commerce Advisory Board Chair Long Discuss the top two '`Possible Courses of Action" from the SMIC Operations Analysis, created by Northern Economics. BACKGROUND & JUSTIFICATION: In the early part of 2009 Northern Economics preformed an operations analysis of the Seward Marine Industrial center. On May 18, 2009 a representative of Northern Economics gave a Power Point presentation of their findings. On slide 9 5 labeled "Possible Courses of Action" it out lines the different scoring criteria for the findings. On slide # 28 Labeled: "Ownership and Operation Options" interviewees ranked the options from most preferred to the least preferred. "Option 4: Make environmental improvements and continue operating," and "Option 5: Retain public ownership and lease the facility/operating" were ranked on top of the list. RECOMMENDATION: Chair Long recommended at the May 18, 2009 that the PACAB Board members come up with five ways to achieve the top two options of the study. Seward Marine Industrial Center -Operations Analysis - May 18, 2009 Brief Update on SMIC Issues ■ NPDES permit is progressing- SWPPP and necessary paperwork is filed with EPA ■ Derelict vessels- impound process continues. Working through legal steps and costs of selling and scrapping vessels ■ Grants for improvements- MARAD grant for electrical infrastructure (finished), CIAP vessel wash -down system (submit 6-15) Possible Courses of Action ■ 1- Status Quo: Continue operating as -is ■ 2- Closing: sell off assets, City retain land ■ 3- Selling: transfer facility to another entity ■ 4- Improving: Continue City operations, and fund improvements ■ 5- Leasing: lease or contract facility's operations to another party or co-op East -Side Development Options ■ Presentation given by Administration Fall 2007 RecommendaC t : Uplands Area — (1) Seek funding to tlispose of abandoned boats (2) Impound and destroy abandoned boats (3) Require bonds from all boat owners (4) Increase rates annually for boats kept in the area more than one year (5) Pursue funding to expand utility infrastructure (6) Pursue new leases through enticements (©g„assessment tlistrigs) • (7) support AVTEG maritime (raining initiatives ■ (8) Consider changes, as necessary, to zoning or SCC y Tonight's Work Session Focus ■ Focus on Block 4- City Run Storage & Maintenance Area and 250 ton Marine TraveLift ■ Cost of Operations vs Economic Value to Community ■ Possible Courses of Action, determine preferred plan with community input Agenda for Work Session ■ Presentation by Northern Economics ■ Question & Answer time with public ■ Overview of Challenges to the City :] Funding of Infrastructure Improvements ❑ Management of Facility ❑Environmental Regulations ■ Council Comments Seward Marine Industrial Center Uplands Operations Analysis Pnentllbnla Seward City Council Pat euNan M May 18, 2009 Northern Introduction ■ Seward Marine Industrial Center (SMIC) ■ Operating since 1985 ■ large -vessel Synchrolift haul -out and 250-ton travel lift ■ Bulk fuel facility, 430-foot dock, utilities ■ Open areas forvessel storage and cargo laydown ■ This operations analysis focuses on the 250-ton travel lift and open area for vessel storage Agenda ■ Introduction ■ Demand forvessel haul -out and storage ■ Environmental considerations at SMIC ■ Ownership and operation options ■ Conclusions Purpose of the Operations Analysis ■ Ultimate goal: provide information for an informed decision about managing the SMIC travel lift and uplands area ■ Several options are under consideration: ■ Continue operating the facility as is, restricting activities subject to environmental regulations ■ Close the facility and sell oft assets, retaining the lend for other uses ■ Sell the two and facility to another party ■ Make improvements to address environmental regulations ■ Improve the lenity to address environmental regulatons, retain public ownership, aid base or contract the facility's operation to another party, U 7 Process for Conducting the Analysis • Interviews with informed stakeholders (business owners, vessel owners, etc.) • Independent research on competing facilities and environmental issues • Survey of SMIC users about current and future use under each option • Independent analysis of survey results to develop financial projections and ownership and operation options Use of the Uplands Storage Area 7-7 zo Z i:Z Use of the 250-Ton Travel Li ft Numb Mal (hamem, and JOUI 111b &a erd m Eb Weimar, Nmnbtt of Liffs Poo Ypj,JN7 17 20 %lubmum Number of LAS par YOM CIN,,mbo-ID—, nW. cr Lt., Use of the Uplands Storage Area A rc rall Vmr4L.,1h (Feel)la LF,[1W1SW,, b, NNmhr IM R� a a vt as ea ft erd m Eb Weimar, Nmnbtt rc rall Vmr4L.,1h (Feel)la LF,[1W1SW,, b, NNmhr IM R� a a vt as ea Demand for Vessel Haul -out and Storage ■ Demand for marine facilities is a function of several factors, including: ■ The vessel's home pod or storage location ■ The location where the vessel is used ■ Ability of local facilities to handle the size add type of vessel ■ Extent of facilities available locally ■ Quality and reputation of facilities available locally ■ Pricing of local goods end services ■ Proximityof competing pods ■ Pricing of goods and services in competing ports ■ Travel costs (fuel, labor, etc,) associated with competing ports I' SMIC's Strengths ■ Interviewees identified the following ways to capitalize on those strengths: ■ Develop a long term comprehensive plan for SMIC ■ Use successful harbors with similarities to SMIC as a model for success ■ Allow private enterprise to operate SMIC by selling andfor leasing sections of the facility ■ Promote development of support businesses near SMIC SMIC's Strengths ■ Interviewees identified the following strengths: ■ Close proximity to Anchorage ■ Connected to the road and rail systems ■ Highly accessible haul -out and storage facilities ■ Large amount of available land ■ Centrally located to southeastern and western Alaska ■ Ability of beef owners to work on their own boats) ■ Ice -free harbor SMIC's Weaknesses ■ Interviewees identified the following weaknesses (Part t of 2): ■ Pricing structure not win pet 'five with many Alaskan facilities ■ Poor infrastructure system ■ Cry policies often change and make it difficult to operate in SMIC; other competing facilities don't have as many regulations ■ Lack of community and government support for maritime Industry ■ Poor customer support ■ Lackof available moorage and poor docking feelites near SMIC ■ City must deal with abandoned Was SMIC's Weaknesses ■ Interviewees identified the following weaknesses (Part 2 of 2): ■ No boat wash -dawn facility creates many of the environmental condoms ■ SMIC's local on a tabletop makes for poor dra'nage ■ No long-term leases offered ■ No support businesses near SMIC ■ Separate travel lift and vessel blocking operators makes haul -out process more difficult ■ No dump stations available for boat holding tanks Other Important Issues to Consider ■ Interviewees offered the following issues that they felt should be considered as part of the operations analysis: ■ Be impanel to all ideas ■ Consider Seward's competition ■ Do not allow SMIC to becare a mompdy; work to encourage canpoitlmh arrong private businesses In and around SM IC ■ Consider Seward's ad valorem tax pclicy in regards to carpeting communites' tax pc!;des ■ Was success is closely lied to the basin enclosure and breakwater Projects ■ The city must estcblish a long term comp'ehereive plan for SMIC ■ Importance of realizing that some government departments will generate Income while others will run a; a lass ■ SMIC IS NIa to Seward s were I Economy and must remain available for public use n_ SMIC's Weaknesses ■ Interviewees identified the following strategies to eliminate or address SMIC's weaknesses: ■ Invest in infrastructure improvement to include elecldclty, phone, Docks, water, sewer, etc. ■ sell ardor lease portions of 5MIC after infrastructure i nprovemene are made ■ Invest in a boat wash-0own facility with wastewater treabmEnt capabitlies (use Wrangell and Puget Sound It as amod 6) ■ Adopt a more cuslov er-friendly attitude such as that at the Kodiat facilities ■ Offer vessel blocking service along win travel ifi services ■ Conduct an acttKe marketing campaign to advertise what SMIC has to offer ■ Recruit individuals with experlence to assist in the management of SMIC Competing Facilities ■ Interviewees were asked about competing facilities, to which the consultants added additional ports. ■ Ports with competing facilities include: IHomer '! I1— IQng Core aepuphamF Hoorah Notliak Evereh Jareah UnalaAaDach Harbor Porl Ange;ee Nelchlkw Wrangell __....... PcdT...m User Survey ■ Northern Economics conducted a survey of SMIC users. ■ Ten out of thirteen users responded, representing 33 vessels and 37 one-way lifts per year. ■ The survey asked users about their use of the SMIC and spending in the community while at SMIC. Trends in Environmental Regulation ■ EPA initiated a Sector Strategies Program focused on the Shipbuilding and Ship Repairseclorwith the goal: to promote environmental management systems (EMS), overcome regulatory barriers to performance improvement, and measure environmental progress m the sh)pbuilding & ship repair industry ■ Areas of focus include energy use, air qualitylemissions, air pollutants, greenhouse gases, water use and discharges, and hazardous waste generation and management. ■ EPA developed an EMS implementation guide in coordination with the Shipbuilders Council of America and American Shipbuilding Association in 2003. User Spending S9mury MspeMiy (mm SYl( vu<Surtr Pam P��rn,am w,[PY L.eo.eeaa wl„nY 'clot Re[o'.M Spenb9,M'�a'.Anra9e (S1 9911]5 L56]5 [ny. AtA1i!\'M,II.AfU,Ti Pryar.M t11 U Y1,o )31 m.pa spanmq lx,YwnAmm nsnlc.wT ,v m, .)n n LiL L�I'g 2`6:meln ILS RaFX1Fl ' I(FA�nml ronq P.uw irw,14s,rt]'p�9v, Lmm <e so 1. Inez ' 11111E vou�e[ rvonn<., E�.�rrN.. o�aya�a bgwN LwIsr�lLq rrvnI OF wsw Y.,E'n IWl PaNa Pul<Na;0 Le[aIN ta11 vF1 RD: TnG Lff (�1 11s 111 1.1151."1x Rw, IF, L11Ill Jv 1n1 11 ]6) E[Ih111F' III.R 1.1) (S) 1BI I693 IPJ)Jfi ti L111.1 mar0 IN09), NO�',tirn [eybruy avNla S l.ern Approaches to Environmental Management ■ Northern Economics contacted the harbormasters in Kodiak and Wrangell to discuss their approaches to environmental management. ■ Both facilities require similar approaches, including: ■ After vessels are lifted, they are placed on a concrete pad. ■ The vessel is washed down on the pad, where runoff is collected and treated. ■ Once washed, the vessel is moved to ground that has already had tarps placed on it. ■ Vessels are encapsulated with tarps as necessary for whatever work is being done. n= Environmental Compliance at SMIC ■ Recommended upgrades to the SMIC yard for environmental compliance include: ■ Concrete pad, 120 feet iong and 50 feet wHe ■ Water lreatmenlsystem ■ Center offers and power washers ■ Rain dirveners ■ Sump basin ■ An oil and water separator ■ A reclaim (recycling) system ■ Heavy metal and paint encapsulation system ■ Other upgrades include: ■ Security tenting around the yard perimeter ■ Electrical system upgrades Ownership and Operation Options ■ Interviewees were asked what ownership and operation options would he hest for Seward. Options included: ■ Option 1: Contnue operating the facility as Is, and restrict activities that are affected by environmental regulations. ■ Option 2: Close he facility and sell oN assets like the travel lift and the buildng. The laid would to retained by the City of Seward for other uses. ■ Option 3: Sell the facil,ly to another party, who would tether continue operating it or use it for another purpose, Under this option, the City would sell any facilities and equipmemused at SMIC, as well as the land ■ Option 4: Continue operating the facility and maze improvements it, address environmental regulations. ■ Optlm 5: Improve me facility to address emir arlenlal repolthers, retain Public ownership, and lease or contract the fa ittys operation to another Party , potentialy acooperative- II Construction Cost Estimate for Upgrades _ Feature Description_ Cost is) Constiuctwn Surveying 10.000 W.Ihdewn Pao and Treatment System e24,600 Eoal Maintenance Equipment - For nMPs 38,800 lllllllles and Electrical Upgrade 309,155 Security Fence 52,000 Mobilization and demobilization 50,000 Construction contingency touchi level estimate) 127,270 Envir amental permitting 20,000 Engmeenng and CA 76.362 Total Protect Cost 1,108,087 pLL Ownership and Operation Options ■ Interviewees ranked the options as follows, from most preferred to least preferred: ■ Option 4: Make environmental improvements and continue operating ■ Option 5: Retain public ownership and lease the facilityloperations ■ Option 3: Sell the facility, as long as it stays open ■ Option 1: Keep operating as is ■ Option 2: Close the fadlily Funding for Environmental Upgrades ■ Interviewees were concerned about who would cover the cost of upgrading SMIC. A number of funding sources are available to reduce the cost to the City and the facility's users: ■ Federal Sources: • D.S. Deparhnentof Agrk:uiWre, Ruralnevabpment • Ecowmio De%Iapment AdMh)hhaW • Eermnmemal Protection Agency • Ma'Nme Adminlst.nm ■ Stale Sources: • DepmtTentaf Enwrcamenlal Clnaerv,ul n • CapXO ntofnaNalnesourws ■ Other sources: • Denali Comm6sbn ■ These sources may not be available to others 11 Conclusions ■ "he Seward Maine Industrial Center is a vital component of the City of Seward marine -related economic base. ■ Interested individuals would like to see some changes mace in how the facility operates, tout there was strong opposition to shutting d down. A clear consensus exists that the work yard is a vital asset for the maritime wmmunity, ■ Interviewees expressed an interest in improving the yard and allowing for more private leasing or ownership in and around the yard. ■ Many interviewees expressed frustration with the leasing p'owss and claimed that many businesses that were interested in operating out of the SMIC yard booked out because of the amount of paperwork and insurance levels required. ■ Some other issues identified in the yard include the handling of derelict vessels and a Ixkof marketing of the facllly. Financial Analysis of Options ■ Northern Economics did a financial analysis of the ownership and operation options, based on assumptions of revenues and expenses generated under each option. ■ The results of the analysis are shown below. SummaryolOxnmhl/AM elmeons Mairfh Wnennlp "d ope,a,e•. cp,len Shia. Ouo Claap0 5•IIIn9 Imp,arinp leaalna m o„qe Oye,a4,p rvnme :19.]<9 0 J3,0 .,�, OIf I I)][B OFera4np mpr.o ]9]<9 C ),510 1 i<] 1B,,10 AIIMOxrtSmke,St Conclusions ■ It may be beneficial for the City to evaluate its policies and procedures to identify ways to operate more efficiently and effectively. ■ Potential areas of Improvement include: ■ Streamline the leasing process to make it easier for interested businesses to establish apresence in SMIC. ■ Evaluate 11e pinholes affecting derelict vessels and develop a fee structure that makes abandonment a burden on the vessel owner. ■ Identify marketing channels to let potential users know about SMIC facilities, With a focused marketing canpaign to reach out m potential users, the City maybe able to increase use of the facility. SMIC Feasibility Study Work Session Summary Northern Economics discussed the possible courses of action for the SMIC area as follows: Possible Courses of Action for the SMIC area: 1. Status Quo: Continue Operating as -is 2. Closing: sell of assets, City retain land 3. Selling: transfer facility to another entity 4. Improving: Continue City operations, and fund improvements 5. Leasing: lease or contract facility's operations to another party or co-op During the process of conducting the Analysis, Northern Economics conducted interviews with informed stake holders (business owners, vessel owners, etc). According to the interviews, they ranked the ownership and operation options of SMIC as follows: Interviewees rank of the ownership and operation options of the SMIC area: I. Make environmental improvements and continue operating. 2. Retain public ownership and lease the facility/operations. 3. Sell the facility, as long as it stays open. 4. Keep operating as -is. 5. Close the facility. City Manager Phillip Oates discussed the City's current plan of action for the SMIC area. The plan of action is as follows: City of Seward's Plan of Action for the SMIC area: 1. Continue to complete and comply with the Storm Water Prevention Permit. 2. Continue the process of removing derelict vessels. 3. Wait to see if applied grants (which one or ones) are received and what other Financing is available for the area. 4. Formulate Best Management Practices for better environmental compliance. 5. Complete code and tariff revisions to address pricing for the lifts, storage and other harbor and boat repair related items. Other options to explore... I. Talk to the new owner of' the sawmill property and discuss intended use of the area to avoid duplication of efforts. 2. Rock Quarry 3. Subsidy for Seward "home ported" boats. 4. Question regarding the sales tax on hired labor. MEMORANDUM DATE: 5/22/09 TO: Phillip Oates, City Manager FROM: Kari Anderson, Harbormaster SUBJECT: SMIC Operations Analysis Upon Review of the SMIC Operations Analysis and Presentation (recently completed by Northern Economics) and after managing the storage area and 250-ton Marine TraveLift for 15 months, I have determined a list of recommendations for SMIC. - Make code and tariff changes to reflect increased costs for stays in the storage yard over 9 months to discourage derelict vessel accumulation - Install a fence around the perimeter of the yard with key -card access and an online camera for better management and security of the yard - Apply for grants to make improvements to the yard, and explore low -interest loan programs while developing options for funding of SMIC capital projects and improvements - Better marketing of the facility in marine publications - Scheduled and increased staff presence at SMIC (does not require additional staff, but requires consistent presence... revision to our current scheduling procedures) - Revisit current fees for storage and 250-ton TraveLifts based on CPI increases and competing facilities. Also, evaluate the fee structure for storage (example $0.14 per foot per day) so it is easy to determine rates - Develop and implement Best Management Practices forthe yard and post signs. Discuss policies with SMIC users and give them options for common questions (example: What to do with used sand -blast grit? What to do with used -tarps?) - Work with Community Development to develop a "10 easy steps to lease City Property" hand-out and continue to update lease procedures - Continue to work with the EPA & ADEC on the NPDES Permit and conduct staff training on water sampling and monitoring - Continue action to eliminate or dispose of derelict vessels - Examine other shipyards nationwide to determine if viable approaches exist for establishing an "upland boat storage/maintenance cooperative" I would recommend that the progress of this list be checked on an annual basis specifically during the same timeframe that PACAB reviews the SMIC Development Plan. 5. Restrooms be built in the area. (Users of the area pay a flat fee to help subsidize the cost and upkeep- rather than pay for the port -a -potties, connect the sewage system to the Spring Creek facility). 6. Consider a co-op approach to this area. 7. Be environmentally friendly (tarps vs. concrete pad). 8. Discuss marketing and who the target audience is. 9. Competition with Kodiak and other boat vards. 10. Consider "Hybrid scenario"- combinations of leases or co-op managed parcels of land. 11. Place dolphins in front of the 250 ton travel lift (do this in conjunction with the ARRV dolphins). 12. Have a structure for boats to complete work under for rent that is easy to transport and is effective in containing contaminants. 13. Security fence (swipe card). 14. Enforcement of environmental laws outside of the SMIC area (USCG patrol to make sure boats are not doing work while in the water). 15. Create a checklist of policies for people to follow. 16. Security Cameras Port and Commerce Advisory Board Agenda Statement Meeting Date: June 3, 2009 To: Port and Commerce Advisory Board From: Community Development Director Christy Terry Agenda Item: Schedule a PACAB Work Session with the Planning and Zoning Commission to discuss the code updates to Title 15 for June 17"' beginning at noon in the City Hall Conference Room BACKGROUND & JUSTIFICATION: The Planning and Zoning Commission set their work session schedule to update Title 15 of the Seward City Code. The Commission would like discuss the proposed changes and to solicit PACAB's expertise and comments during a joint work session. The Commission proposed the following joint work session for Board approval: Wednesday June 17"' PACAB/PZ,joint work session 12:OOpm — I:00pm. Topic: Title 15 code overview, comments and questions to staff. Updating Title 15 will be a long process with many work sessions encouraging a great amount of public input before being submitted to Council as an ordinance change. The Commission set their schedule of work sessions and the advertising campaign to solicit public involvement has begun. For PACAB's information, the following dates are the work sessions scheduled by the Commission: May 281h 6:30-9:30pm. Topic: Seward City Code (SCC) Chapter 15.01 General Provisions and SCC Chapter 15.05 Land Use Planning (see attached). June 91" 6:30-9:30pm. Topic: SCC Chapters 15.01, 15.05, and SCC Chapter 15.10 Seward Zoning Code. June 161h 6:30-9:30pm. Topic: SCC Chapters 15.01, 15.05, 15.10, Chapter 15.15 Historic Preservation and Chapter 15.20 Signs .Tune 23rd 6:30-9:30pm. Topic: Title 15 to include Chapter 15.25 Floodplain Management As the end of this schedule the Commission will evaluate their progress and schedule additional work sessions as needed. In August, the Commission will schedule another two public meetings to present the comprehensive draft update to the public prior to the Commission's final public hearings and moving the code forward to Council. CONSISTENCY CHECKLIST: Where applicable, this motion is consistent with the Seward City Code, Charter, Comprehensive Plans, Land Use Plans, Strategic Plan and City Council Rules of Procedures. Other: NA FISCAL NOTE: NA RECOMMENDATION: By motion, PACAB should schedule their .tune 17"' work session topic as, "PACAB joint work session with the Planning and Zoning Commission to discuss the code updates to Seward City Code Title 15." NOTE: THIS DOCUMENT IS A DRAFT, INTENDED FOR DISCUSSION AT P&Z WORK SESSIONS. AFTER ALL ADDITIONS, DELETIONS AND MODIFICATIONS SUGGESTED DURING WORK SESSIONS HAVE BEEN INCORPORATED INTO THE DOCUMENT (AND BEFORE IT IS INTRODUCED AT A REGULAR P&Z MEETING), I WILL PERFORM A FULL AND FINAL LEGAL ANALYSIS AND AN EDIT OF GRAMMAR, SPELLING, SYNTAX, VOCABULARY, ETC.' Chapter 15.01. General Provisions Article 1. Powers and Duties 15.01.010. Authority and Purpose.2 (a) Authority. This title is enacted for the regulation of land uses within the legal jurisdiction of the City of Seward pursuant to the full extent of authority granted by Alaska Statutes; and Kenai Peninsula Borough ordinances. (b) Purpose. The purpose of this title is to provide planning, zoning and land use regulations that maintain and improve the quality of life in the community by promoting (1) public health, safety and general welfare in the community I understand the "process" toward enactment of a revised Title 15 to be generally as follows: I. I submit drafts to P&Z work sessions for review and comment. 2. I revise the draft according to the "sense' of the commissioners during the work session, and then I perform a final legal and language edit of the document. 3. The P&Z Commission holds public hearings, deliberates in formal session, and recommends some version of a revised Title 15 for enactment by the City Council, 4. The City Manager and Community Development Department forward that P&Z recommendation (along with the administration's recommendations) to the City Council. 5. The City Council convenes work sessions to review and comment on the revised Title 15. 5. I revise the document again, according to the "sense" of the council members during work sessions. 7. The City Council introduces an ordinance adopting a revised Title 15, holds public hearings, deliberates in formal session, and adopts some form of a new Title 15, 2 I have merged the "intent" subsection with the "put -pose" subsection for two reasons. First, they deal with very similar subject matter. Secondly, the word "intent' is a term of art in the law, and statements of "intent" here might obfuscate, or be construed to counter other evidence of "legislative intent" in Council proceedings and other commission forums of the City. 3 The presently enacted ordinance says "within the city." I have changed this to "within the legal jurisdiction" because there are some instances where a city can potentially exercise land use regulation authority beyond its boundaries, e.g. for city owned lands. "The presently enacted subsection cites specific state statutes and borough ordinances. One of the rules of good legal draftsmanship is to avoid specific references when possible, in order to ensure future continuity in the event that state statutes or borough ordinances are revised or renumbers. Hence. this new draft of the subsection avoids specifying code numbers. The presently enacted version of the subsection does not include the word "zoning." It is only implied in "planning and land use regulation." I chose here to make that detail explicit. (2) economic development, (3) education and training, (4) innovation, (5) sustainability through mitigation of risks from natural hazards and through environmental protection, (6) orderly development of the community, (7) public safety and order, (8) systematic development of transportation, public utilities and public facilities.7 15.01.020. Planning and Zoning Commission.8 (a) The Seward planting and zoning commission ("commission") wills exercise a1110 of its powers and will perform all of its duties pertaining to the implementation, administration and enforcement of planning, zoning and land use regulation within the jurisdiction of the city, in accordance with the authority and responsibility delegated to the commission in this Seward City Code, including) t Title 2. (b) The commission is authorized and directed to adopt and review periodically rules of procedures governing its administration, meetings and hearings, rules of debate and the personal conduct of commissioners acting in their olflcial capacity. 12 G In the present version of the subsection, this language appears twice, in the "purpose" subsection and in the "intent" subsection. I combine them here. Phis subsection is an edited (shortened) version of the existing factor, which is somewhat redundant and overly detailed. R I have replaced this section ahead of the "Administrative Official" section, in recognition of the descending order of authority in this title. "The use ofthe word "will" is intentional here. It commits P&Z to particular procedures and actions, as distinguished firom `shall" which imposes a duty. The imposition of "duty" on P&Z occurs in the City Council's proclamations in Title 2. In Title 15 we are addressing how P&Z is committed to administering planning, zoning and land use regulation vis a vis the public citizenry. 10 The presently enacted section states only that the P&Z Commission is "created to assist in the interpretation of this title." The powers, authorities and responsibilities of P&Z in Title 15 are far broader than that vague statement. I have tried to write here a comprehensive statement of P&Z power and authority. ' ' In this revision, I not only avoid specific reference to "section 2.30.210" (to preserve accuracy in citations if'I itle 2 is renumbered sometime in the future), but I broaden the citation to the entire Seward City Code, just in case the council someday enacts an ordinance pertaining to P&Z in some other Title. I have stated "including Title 2" as a general reference for lay readers looking for where one finds the primary law pertaining to P&7 authority and responsibility. I have inserted specific authority for the commission to adopt rules of procedure because the present Title 2 ordinances leave some sli_ht ambiguity to the question. Chapter 02.10 applies only to the city 15.01.030. Administrative Official. (a) 'The city manager, or his or her designee, is the administrative official13 responsible for providing staff support to the commission and for administering the programs and decisions of the commission. (b) The administrative official wi1114 be responsible for (1) interpreting and enforcing planning, zoning and land use regulations,'' (2) maintaining records of all official activities pertaining to planning, zoning and land use regulation,16 (3) administering the rules, procedures and policies adopted by the commission, and (4) administering commission meetings, work sessions and appeals in accordance with laws' 15.01.040. Amendments to Ordinances18 council. But Subsection 02.10.065(a) — Rules of Debate — address not only the council but the "city's boards and commissions." Confusedly, subsections (b) through (e) revert back to addressing only the "council" and "councihnembers." In short, the inclusions of P&Z as one of the "city's boards and commissions" governed by an isolated out -of -context subsection in Chapter 2.10 of the ordinances (otherwise applying only the city council), leaves unclear whether and to what extent the council has empowered the P&Z Commission to enact rules of debate. '' Unlike the present ordinance, there is no need to place "administrative official" parenthetically in quotes for future reference. because this is not a shortening of the term. 'I he full term is used throughout the title. " See note 8 above. Here I used "wilt" (a commitment) rather than "shall" (imposition of a duty) because the extent of services from the administration to the commission will vary from year to year according to fiscal policy and changing land use issues. For example, the recent efficiency study by the administration resulted in changes in the scope of the executive liaison vis a vis the commission, and, only a few years earlier, there was no position called executive liaison serving the commission. The actual day-to-day services provided by the administration will vary in emphases fom time to time, and the ordinance must recognize that need for flexibility in municipal administration. �' I have changed the prior reference to `this title" to now read `planning, zoning and land use regulations" to ensure the section captures planning, zoning and land use provisions that might be found in other titles of the Seward City Code. 16 Id. 77 The present section addresses only processing appeals. I have redrafted the provision to capture the full meeting/hearing responsibility of the commission's staff. 1s I have revised this section on "Amendments" substantially, but without changing the underlying process. As presently written, the section contains truisms, superfluities, and ambiguities. For example, the prefatory clause ("whenever the public necessity, convenience or general welfare requires....") potentially limits the amendment process referenced here to something narrower than the litany of `purposes" enumerated at I5.01.010(b). Also, the city council inherently possesses broad powers to legislate, limited only by state and borough law and constitutional protections (due process and equal protection). That prefatory clause opens the potential for argument that the city has limited itself in reasons for amending or repealing land use regulations. [Delete (b)(1) methods for initiating ordinance changes.] 1 9 [Delete (b)(4) information details from citizen applicant]20 [Delete (c)(1)]21 [Delete (c)(4)]22 (a) Prior to enactment, all proposed ordinances affecting planning, zoning or land use regulations must be submitted to the commission for a public hearing conducted in accordance with the requirements of this chapter.23 '9 The elaborate description of how ordinance -changes might be "initialed" is not only unnecessary here but also incomplete as a statement of the authorized legal process. SCC 0115.035 already states, "An ordinance or resolution may be sponsored by the city manager, city clerk, city attorney, one of the boards or commissions, the mayor or any member of the city council." The city council already has the power to initiate an ordinance. The commission also has the authority to recommend an ordinance change at any time. Citizens already (and always) have the right to approach any of their elected council member to initiate an ordinance. The administration frequently proposes ordinances to the council. The Seward City Code provides elsewhere for citizen initiatives and referendums. There simply is no need for any statement here in Title 15 regarding how ordinances are initiated. (Curiously, the presently enacted subsection (b)(1) apparently contradicts SCC 02.15.035 because the former does not pointedly allow the "administrative official" to initiate a change either in the form of the city manager initiating an ordinance, or, by bringing an ordinance through the commission to the council.) In short, I have deleted subsection (b)(1) because it is unnecessary, superfluous and incomplete in describing methods for initiating an ordinance, whether by the citizenry, the city manager, the commission or the council . 0 'This section of the present ordinance pertains generally to all amendments of planning and land use ordinances. Sometimes, when a citizen comes to the Department of Community Development requesting support for an ordinance change, the items in the present (b)(4) are indeed appropriate. Other times.. however. the staff may not need from the citizen e.g., "a map showing the area involved." We have many maps, and map -production capability in house. Moreover, it is just as likely that a citizen wanting a change in a land use ordinance will go to the city manager or to a council tnember asking him or her to initiate an ordinance change. In that event, the process is triggered, but the package of materials described in (b)(4) may not be created. In short, what the Department of Community Development actually needs from a citizen varies according to the nature of the request, and the type of detail described in (b)(4) is better handled administratively than in a rigidly codified ordinance. 21 As noted elsewhere, there are so many different methods for initiating a change in an ordinance, that attempting here to channel citizens into a single application process is an unnecessary restriction on citizens' fundamental rights to petition their elected council members directly. A citizen should always have the right to go directly to an elected council member with a request for an ordinance anytime on any matter. We will always hope that a citizen comes to the Community Development Department for information and counseling and that city council members will likewise seek the advice and assistance from the Department, but nothing in law should ever inhibit or prevent any single council member from initiating any ordinance at the behest of any Seward citizen. Moreover, even in a worst -case -scenario where a citizen and council member intentionally did an end -run around the expertise of the planning department and the commission, that proposed new ordinance still must be channeled through a hearing and recommendation by the commission prior to council enactment. Hence, a full vetting of the proposed ordinance is always assured, even without trying to channel all citizen's proposals through the Department. 22 It is unnecessary to say here that the council "may or may not adopt the amendment...." That statement in the presently enacted ordinance is a truism — a self-evident proposition founded in the very nature of a City council. (b) Following the public hearing, the commission shall submit to the city council its written recommendations regarding the proposed ordinance. This submittal shall include the minutes of commission deliberations and the public record pertaining to the proposed ordinance.24 (c) The written recommendation by the commission must be received by the city council. prior to the final reading25 of the proposed ordinance. (d) A proposed planning, zoning or land use ordinance substantially the same as an earlier ordinance that failed enactment by the city council may nol-6 be re -introduced for first reading until at least nine months immediately following the date of the failing vote on the earlier proposed ordinance. (e) No proposed ordinance altering zoning for an area of less than one acre, not including public rights of way, will be considered unless (1) the proposed ordinance alters the boundaries of existing, contiguous zoning districts, or (2) the proposed ordinance brings a parcel into conformity with the land use plan, or (3) the proposed ordinance is consistent with the comprehensive plan and with generally accepted land use policies and practices, and, the benefits of the proposed ordinance far outweigh the detriments to the owners; to adjacent land owners and to the community as a whole.'7 This sentence incorporates the existing subsection (c)(2). This is a rewrite of the present subsection (c)(5). `s This "final reading" language is designed to allow a proposed ordinance to follow parallel paths through the commission and the council simultaneously. This potential for expedited tirning accomplishes two purposes. First, there have been instances in the past where ordinances affecting land use regulation have inadvertently been processed by the council without the benefit of a recommendation from the commission. This parallel processing prevents stalling the process if the council inadvertently begins first reading of such an ordinance in the future. Also, there are some instances where the city may want to accommodate development or land -use protection by expediting the process with parallel processing. This "final reading" language recognizes that the city council can, when it chooses, begin processing a proposed ordinance immediately and simultaneously with the commission, but still benefits fiom the reconnnendat ions of the commission before final passage. In drafting Taws, "may not" is the correct form for a verb denying permission or authority, as opposed to the commonly misused "shall not." 2' "I his is a new sub -subsection for your consideration. Creation of a small zone is almost always poor planning policy, and "spot zoning" may even be unconstitutional under certain circumstances. But. it is conceivable that a unique land use/need could create an enclave requiring distinctive land use regulation. This new subsection offers that flexibility, provided the circumstances satisfy the requirements of the Alaska Supreme Court (Balough v. Fbx No. Star Boro,) and also conform to generally accepted planning policies and practices. Note that this subsection requires the small zone to be consistent with the comprehensive plan (as is the case with all zoning changes). (f) A copy of all proposed and adopted ordinances amending the land use plan shall be submitted to the Kenai Peninsula Borough planning commission for information. Article 2. Meetings and Hearings 15.01.050. Commission Meetings and Hearings,28 (a) All meetings of the commission for the transacting of any business in its advisory, policy -making or quasi -legislative capacity must be open to the public, except that the commission may recess into executive session as narrowly29 permitted by law. (b) A meeting of the commission for the transacting of business in its adjudicatory capacity must be open to the public during the hearing of evidence and the taking of testimony,30 but the subsequent deliberations by the commission and the decisional process may occur in a closed session without prior published or posted notice to the public. (d) The commission shall provide a reasonable opportunity for the public to be heard at all regular and special meetings that are open to the public.31 28 There is nothing in the present ordinance that speaks to how the P&Z Commission holds meetings and hearings. This commission is a hybrid under the Open Meetings Act. In some contexts, it is an advisory commission. In other contexts, it is a decisional commission. In the former context, no two commissioners can transact any public business outside a public meeting, and that includes fact gathering and investigations. In the latter context, three or less commissioners can transact business without violating the ONIA, however I hasten to warn you that there are many qualifiers that would make such a "meeting" a violation. Viewed from another perspective, the P&Z Commission sometimes makes decision that are quasi- judicial —where the rights of specific, identified individuals are being determined, such as a variance request, a CUP, a zoning change, and an appeal by a citizen from a decision of the administrative official. In these contexts, deliberations and decisions can be made in closed session without prior public notice. The OMA simply does not apply to these proceedings. In the first three subsections of this new section. I have tried to distinguish how your various functions are treated vis a vis the OMA. '' Normally 1 would not place such an adverb in an ordinance. But the language in the Open Meetings Act and the court interpretations consistently construe the requirements strictly and the exceptions narrowly. (Paradoxically. the courts have been more lenient with remedial measures after an OMA violation has occurred.) The emphasis here is an attempt to convey that message as a warning to city employees and commission members. 30 Adjudicatory proceeding are not suhjeet to the Open Meetings Act, for purposes of either reasonable notice to the public or opening the meeting to the public. However, the spirit of the OMA clearly intends that governmental business should be conducted in public whenever possible. Hence, I have drafted this new subsection to provide that the evidence -taking phase of a commission adjudicatory hearing is always open to the public, because I see no reason why that portion ever needs to be private. Also, 1 have drafted the sentence pertaining to the deliberative/decisional process as a closed meeting in only a discretionary sense. In some instances, the commission could choose to deliberate in public (as usually happens with variances, CUPS, etc.). hi other instances, the commission can choose to deliberate in private (as happened with the canopy appeal remanded by the court in litigation still pending). This is simply restating a requirement in Alaska Statutues, 29.20.020(a). Normally it would not be necessary to restate in ordinance a requirement of statute. However, because this section contains a subsection that specifically recognizes a limited context for the commission to go into closed session (e) The commission shall keep a journal of all of its proceedings.32 15.01.060. Notice33 of Public Hearings. (a) Written notice of a public hearing by the commission must contain 3a (1) a dcscriptiolr of the item scheduled for action by the commission, stated with a level of specificity corresponding to the complexity and importance of the issues involved, (2) a legal or common description of the property which is the subject of the action, (3) the date, time and place of the public hearing, (4) the location of teleconferencing sites, if any, (5) instructions for call - in public testimony, if any,33 and (6) the person or place to contact for further information. (b) The written notice of a public hearing shall be published in a newspaper of general circulation within the city at least twice[?]36 during each of the two calendar weeks prior to the date of the public hearing. without prior public notice, I think it would be a good idea to also declare, to the full extent, the legal requirement for public participation in official business of the commission. 32 The language in this sentence is taken from the City of Seward Charter, §3.5(j) as it applies to the city council. 33 Although this section is entitled "Public Hearings" in the presently enacted ordinance, it almost exclusively addresses only "notice" requirements rather than the hearing process. Hence 1 have changed the title of the ordinance. i4 l have deleted the word "brief' from this ordinance, because the Alaska Supreme Court has held that the level of specificity required for "reasonable notice" depends upon the complexity and importance of the issue involved. This word "brief' could prove troublesome if a staff member misinterpreted the level of description required for a complex issue, or, if a court later focused on that word as an indication that the City had not provided sufficient notice. I have also added a paraphrase of the Comas measure of "reasonable notice," geared to the complexity and importance of the issues involved. 's Teleconferencing is permitted by Alaska Statutes. Call -in testimony has been approved by the courts. However, "teleconferencing" should be distinguished from allowing call -ins for citizens. The former is a formal location where some commissioners and the public might he located during the meeting, and, where agenda packet material must be available to the public. The latter carries only notice implications, and not agenda packet requirements. This is a notice requirement taken from the present SCC 15.01.040(a)( I )(a) — publication at least twice for a "public hearing." But the Planning and Zoning Commission Rules of Procedure only require publication of the agenda for a meeting "once during the week prior to the date of the meeting." Rule 18(c). There is nothing in Title 2 referring to the length of public notice for the P&Z Commission. However, with regard to the City Council, the Charter for the City of Seward says at Article 3.5: (c) At least six hours written notice shall be given designative the time and purpose of a special meeting. Such notice shall be served personally on each member of the council, or left at his usual place of residence or business by the city clerk or by someone designated (c) The written notice of a public hearing shall be posted at the principal office of the administrative official and at city hall for at least ten consecutive days prior to the public hearing,17 (d) No less than ten days prior to the date of the hearing, the written notice of a public hearing shall be mailed to the known owners of record of the property that is subject to the action, and to the known owners of record within 300 feet of any point along the perimeter boundary of that property. (c) If the public hearing pertains to textual or boundary changes directly affecting more than ten parcels,31 including subject parcels and parcels contiguous to the perimeter of subject parcels, the administrative official may choose to post the notice in at least three public places instead of mailing it in the manner described in subsection (d) above. by him. A copy of such notice shall also be delivered at the place of business of each newspaper printed and published in the city, but this requirement shall not be jurisdictional to the holding of any such meeting. (d) In an emergency, any special meeting shall be a legal meeting if all members are present or, if there be a quorum present, and all absent members having in writing waived the required notice. Waivers may either be before or after the time of meeting. SCC 2.10.032 then increases that notice time to 24 hour, to council members for council meetings: The city clerk shall give at least twenty-four hours' written notice to the mayor, city manager, and to each councihnember of all special meetings and work sessions, designating the time, location and purpose of the meeting. Such notice shall be served personally on each member of the council, or left at his usual place of business or residence, by the city clerk or by someone designated by him. A copy of such notice shall also be delivered to the place of business of each newspaper printed and published in the city and each radio station, but this requirement shall not be jurisdictional to the holding of such meetings. Publication of notice of P&Z agendas should be the same as publication of notice of P&Z public hearing, for simplicity of administration. I need direction from the Commission as to whether we should change the Rules to 2-weeks of published notice, or change the ordinance to I -week of published notice. 37 This subsection is not in the present ordinance, however, the Open Meetings Act requires that notice must be posted "at the principal office of the public entity", or, if no principal office exists, then at the place designated by the governmental body. AS 44.62.310(e) and 44.62.175(a)(2). Arguably, the -'principal office" of the P&Z Commission is the office of whoever the city manager has designated as the "administrative official," which presently is the office of the Department of Community Development located in Petro Plaza, not city hall. Posting notice in city hall reaches a broader audience of the public, but additional posting at Petro Plaza ensures that the City has met the strictly construed requirements of the Open Meetings Act. g The present ordinance allows posted notice in substitution for mailed notice when the action by the commission involves "a change in lest or major district boundary change....' That is an extremely vague statement of circumstances justifying one method of notice rather than another. What is "a change in text"'? Rescinding a CUP is a "change in text," but the owner of record is probably entitled to more specific notice than simply posting in three locations. What is a "major" boundary change, as opposed to a minor boundary change? "Major" to the owner of an affect parcel means something very different fton the significance acity-staff person might place on the action. After grappling with this problem for some time, I came to the conclusion that we really should assign a number as the point at which mailed notice can be switched to posted notice. Note too that the switch is discretionary ("may") with the planning staff: The conservative approach will be to mail notice directly to record owners whenever one is in doubt as to which procedure is more likely to satisfy due process notice requirements. (f) If the public hearing is convened by the commission in its quasi-judicial capacity for the purpose of taking evidence and testimony in an adjudicatory proceeding , notice of the hearing shall be mailed to the last known address of all known parties claiming a substantial interest in the affected property at least ten days prior to the date of the hearing. 39 (g) An applicant requesting commission action pertaining to a subject property shall post a written notice of the public hearing on the subject property for at least ten consecutive days prior to the public hearing. The posted notices shall be visible from every improved public right of way40 adjacent to the property. This posting of notice shall occur in addition to publication and either mailing or posting required by subsections (b) through (f) above, and shall contain the information required by subsection (a) above. (1) Before a public hearing can be convened, the applicant must41 deliver to the administrative official an original affidavit attesting that the affiant posted the notice on the subject property and that it remained visible from every improved right of way for at least ten days. The affidavit must be signed by the affiant and endorsed in jurat form by a notary public. (2) The applicant shall remove the public notice from the subject property no later than five days after the tinal"12 public hearing in the matter. (h) Alteration or removal of a posted notice by any person during a time when the posting of notice is required by law is a violation subject to civil penalties set forth at 15.01. below. Article 3. Nonconforming Status and Variances43 15.01.070. Nonconforming structures, lots and uses. (a) A legally existing structure44 that fails to conform to a subsequently enacted ordinance may continue to exist in that -v This subsection is new. l have added it to ensure that we give adequate notice primarily to persons who are appealing an administrative decision, i.e., people with a substantial interest in commission proceedings that might not be included in the subsection immediately above this one. FYI: The commission is sitting in its quasi-judicial role when the meeting is solely to make a decision in an adjudicatory proceeding where the rights of specific, identified individuals are being determined, such as occurs in a request for a variance, or a CUP, or a specific zoning change. ° 1 changed "street" to `Might of way" to capture alleys and public pathways (e.g. bike paths, etc.) dl "Must' (not "shall') is the appropriate verb for a statement of a precondition. °` There may be more than one public hearing. hence I have added the word, "final." ' In the present Title 15, section 15.10315 is the only -rand fathering ordinance, and it applies by its specific terms only to that zoning "chapter." There is no grandfathering section for sign regulation, floodplain management, or any other aspect of land use regulation. Limiting the extent of grandfathering of nonconforming structures and uses is a general concept, applicable to all facets of land use regulation. Hence, I have deleted 15.10315 and placed this new grandfathering section here in chapter 15.01 among generally applicable provisions. d4 FEMA applies a very limited, esoteric meaning to the plain English word "structure," for purposes of a city's minimally required toodplain management regulations. That definition at 44 CFR §59.1 includes only walled said roofed buildings, above -ground storage tanks containing liquids or gases (but not solids), and manufactured homes. I am instead defining "structure" as it is used in ordinary parlance, thereby nonconforming state for the remainder of its useful life, but all subsequent new construction45 or substantial improvements46 must comply with all ordinances in effect at the start of construction.47 An existing lot that fails to conform to a subsequently enacted ordinance may continue to exist in that nonconforming state, but all subsequent new construction, substantial improvements and new or modified uses of that tot are prohibited as long as the lot remains in a nonconforming state.48 A nonconforming land use legally existing prior to the effective date of an ordinance adopted in this Title may continue thereafter until that use is interrupted or abandoned for six months or more. 15.01.080. Variances.49 [1 am still working on this section, combining the present zoning variance provisions of 15.10.325, with the sign variance provisions of 15,20.055, and the floodplain variance provisions of 15.25.060. The new provision will establish one variance procedure while preserving the different criteria to be applied in each of the above three contexts. It should be finished by the end of the week.] Article 4. Appeals 15.01.090. Jurisdiction for Appeals. The commission shall hear all appeals from a final determination of the administrative official that pertain to the subject matter of this Title and that affect the use of identified parcels of land. The city council sitting as a board of adjustment shall hear all appeals from a final decision of the commission, based only on expanding Seward's application of floodplain management regulations to more "structures'' than FEMA minimally requires the city to regulate. This, of course, is a policy change which the P&Z Commission and the City Council should be aware of and approve or reject. If the policy makers decide not to accept this expansion of floodplain management regulations, I must edit (and perhaps find a substitute for) the use of the word "structure" in Title 15 provisions dealing with subject matters other than floodplain management. as For participation in the federal floodplain insurance program, FF.MA requires Seward to adopt and apply its definition of "new construction" at 44 CFR §59.1. To achieve a simpler, more streamlines land -use code, I have adopt that same meaning of the term throughout Title 15. (See Definition and related footnote below.) `w For participation in the federal floodplain insurance program, FEMA requires Seward to adopt and apply its definition of "substantial improvements" at 44 CFR §59.1. Yo achieve a simpler, more streamlines land - use code, I have adopt that same meaning of the term throughout Title 15. (See Definition and related footnote below.) 47 For participation in the federal floodplain insurance program, FEMA requires Seward to adopt and apply its definition of "start of construction" at 44 CFR §59.1. To achieve a simpler, more streamlines land -use code, 1 have adopt that same meaning of the term throughout Title 15. (See Definition and related footnote below.) " I still must perform additional legal research and analysis of this provision. to ensure it cannot be construed as an inverse condemnation — a de facto "taking" by the city. I,ike grand fathering provisions, variances apply to many different types of land use regulation. Seward presently has three different variance sections, for zoning (15.10.325), for signage (15.20.055) and for floodplain management (15.25.060). While different criteria apply for evaluating each of these differing types of requests, there are some common criteria, and there should be only one standardized procedure for making a variance request. That is why I have replaced all variances in one provision in the "general provisions" chapter (15.01) of the ordinances. the record and transcript of the hearing below. The superior court shall hear all appeals from a final decision of the board of adjustment, based only on the record and transcript of the hearing below. 1.5.01.100. Appeal from Administrative Decision. Any aggrievedSO person may appeal to the commission any written linal51 determination of the administrative official52 that pertains to the subject matter of this Title, i3 and that affects the use of a specific parcel54 of land identified in the determination. A written determination is ripe for appeal to the commission only if it includes a clear statement that it is final at the administrative level, and if it includes a summary description of both the procedure for appealing to the commission and the method for computing the deadline for that appeal.`' 15.01.110. Application for Appeal. (a) An application for appeal to the commission and the filing fee set by resolution of the council must be filed with the city clerk no later than ten days after the written final determination of the administrative official is mailed or delivered to the last known address of the applicant for the administrative action, or the last known owners of the affected real property if there was no applicant for administrative action. (b) The application for appeal to the commission shall contain at least the following 50 This word restricts the right of appeal to someone who has been wronged, or whose legal rights have been affected. 51 1 have added this word to ensure there is no confusion —either among administrators or by citizens — that a matter is not appealable until it is "final." If a citizen has a complaint that, e.g., an administrative official is taking too long to reach a decision, or, an administrative official is somehow obstructing action (i.e., short of a final decision), the recourse of a citizen is political in nature (complaints to council members, Citizen's Comments, etc.) rather than adjudicatory. 5' The present appeal provisions at SCC § 15.10.410 combine (and obfuscate) appeals from administrative decisions with appeals from P&Z. to the Council.. and appeals from the Council (sitting as the Board of Adjustment) to the courts. In the present redraft, 1 am Unraveling these steps, and hopefully making them easier to follow. 53 Note that the "Appeal" provisions have been deleted from Chapter 15.10, moved to Chapter 15.01, and made to apply to everything in the entire "'title." In the present Code, SCC § 15.10.410 applies only to "this chapter" (Zoning) and not to Chapter 15.20 (Signs) or Chapter 15.25 (floodplain management). The latter chapter does independently authorize an appeal at § 15.25.060(a)(1) but it fails to describe any procedures, and it obfuscates appeals of variances with appeals of other floodplain management decisions by the administrative official. By placing an appeal procedure in Chapter 15.01, and stating that it applies to all appealable final determinations in this "Title," we clearly establish one procedure for all appeals, whether it is a map interpretation by a staff planner (Chapter .05) or a staff zonine decision (Chapter. 10), or a sign decision (Chapter .20) or a floodplam decision (Chapter 25), or a decision by the staff on some other Title 15 subject matter. 5a This quasi-adjudicatory process is designed to address administrative decisions affecting an identified person, small group or individual parcels of land, not broad policy decisions having only potential future and general impact. 55 This information has been required by the Alaska Supreme Court, in many of its decisions. I restate the law here, in the ordinance, to prompt administrative officials in the future to remember this due process requirement (and avoid the convoluted and expensive litigation of the Ace Hardware canopy case). information: (i) Name and address of the appellant (ii) A description of the action or determination being appealed.. and (iii) Points on appeal, including the reasons for the appeal and demonstrating a clear grievance to the applicant 15.01.120. Appeal Notice, Timing and Record. (a) The city clerk shall schedule an appeal hearing before the commission, to occur within thirty56 days of the date s/he receives a complete and timely application and filing fee, provided however s/he may schedule the hearing for the next succeeding business day if the 30't day falls on a Saturday, Sunday or legal holiday'? of the city. (i) The city clerk shall mail or hand -deliver written notice of the date of the hearing not less than twenty'$ days before the date of the hearing 5 6 See footnote 50 below. We may want to increase this from the present 30 days to --40 days. 57 Section 1.8 of the Seward City Charter states, "Except as otherwise provided in this Charter, whenever the date fixed by law or ordinance for the doing or completion of any act falls on a Saturday, Sunday or legal holiday, such act shall be done or completed on the next succeeding business day." In the past, there have been some instances where matters were scheduled earlier when the computation results in the 30"' day falling on a Saturday or Sunday. The Seward City Charter provision is repeated here to remind the scheduling official that s/he does have legal authority to sometimes extend the hearing date to the next business day. 5' 1 have increased the time from 15 days (in the present code) to 20 days, because 1 can't otherwise fit reasonable timeframes for the parties to brief the matter and the commission to have ample time for review of their packet. The present ordinance requires that the clerk deliver the record to the commissioners 5 days before the hearing. But the present ordinance also says that the written rebuttal from the administration is not due until 2 days before the hearing i.e., after the packet has been delivered to the commission. 'The commission gets an incomplete packet, and some commissioners may not have adequate time to review the rebuttal which comes after the packets have been distributed. In the redraft, I worked backwards in time from my assumption that the commissioners should receive a truly complete packet, and that it should be available to them at least 5 days before the hearing (because commissioners are working volunteers who need that time to prepare). Hence, everything must be filed with the clerk at least 6 days before the hearing, so that the clerk has time to compile everything into a packet. I assume that the administration should have at least 3 days to review the appellant's written statement and to write a rebuttal for the commission. I also assume that the appellant should have at least 5 days (or more) to prepare the originating written statement, but only after the appellant has had access to the full,fle of the administrative gfficial. ([it fairness. a person can't write a complete statement without knowing what's in the administration's files.) Therefore, I have redrafted all of these timeframes to require a hearing within 30 days, notice of the date to the parties at least 20 days before the hearing; public access to the administration's file at least 14 days before the hearing; appellant's statement at least 9 days before the hearing; the department's rebuttal at least 6 days before the hearing; and final packet available to the commission at least 5 days before the hearing. It is possible that the "window" of time for a hearing will be reduced to a given I 0-day period, because it must happen within 30 days and the clerk must give notice to the parties at least 20 days before the hearing.. 'Ilie commission may want to recommend to the city council expanding the time from 30 days to 40 days, to allow for scheduling problems mostly likely to occur during longer holiday seasons like Thanksgiving, Christmas, Easter, and Fourth OfJuly. (ii) The city clerk shall publish notice of the hearing in accordance with the provisions of 15.01. for public hearings. (b) Not less than 14 days before the date of the hearing, the city clerk shall make available for public inspection a copy of the file on the matter developed by the administrative official, including the written final determination. (c) Not less than nine days before the date of the hearing, the appellant may file with the city clerk a written statement pursuant to 15.01.110(a) below. (d) Not less than six days before the date of the hearing, the administrative official may file with the city clerk a written rebuttal statement pursuant to 15.01.1 10(b) below. (e) Not less than five days before the date of the hearing, the city clerk shall make available59 to the commission and for public inspection60 the record61 on appeal consisting of the following documents: (i) A copy of the file on the matter developed by the administrative official, including the written final determination (ii) A copy of the application for appeal (iii) Copies of the written statements of the parties filed pursuant to section 15.01.110 below 15.01.130. Written Statements on Appeal. (a) No less than nine days before the hearing, an appellant may file with the city clerk and the administrative official a written statement describing the facts, legal authorities and analyses supporting the points on appeal in the application for appeal. The written statement should62 include copies of 'q I have changed "deliver" to "make available," because sometimes commissioners are out of town or unavailable, and this could be a large packet. The term "make available" allows the city clerk to deposit the packets with the police dispatcher, and leave to individual commissioners the decision of when to pick them up. A commissioner who is out of town for an extended period can always phone the city clerk and ask for receipt of the materials in some other manner. G0 The "public inspection' presently appears as a full subsection, 15.10.420(b) in Title 15. I am compressing it here. The present code section, 15.10.420, melds into one section what are essentially three different "records of appeal' — one occurring at the Commission level, another occurring at the Council level when there is more documentation and transcripts, and a third occurring at the Superior Court level when there is still more documentation and transcripts. I am separating these "records on appeal" in the redraft. Therefore, the record discussed in this subsection does not refer to "transcripts of prior proceedings" or "Imdings and conclusions," because there are none yet. "2 Notice I use the word "should" here. No appellant is required to file a written statement beforehand, under the present ordinance. I assume we want to keep it that way. Therefore. 1 do not want to want to place mandatory requirements in a written statement that itself is discretionary, for fear it may discourage a party from filing a statement — a document that could be very helpful to the commissioners in their preparation for the hearing. At the same time, I would like to encourage early openness and candor, and the absence of surprise by either party at the hearing. By enacting the "should" sentence, the onus clearly documents that will be introduced at the appeal hearing, and a list of names and addresses of persons who will testify for the appellant at the hearing. (b) No less than six days before the hearing, the administrative official may file with the city clerk and the appellant a written statement describing the facts, legal authorities and analyses supporting the final determination, and refitting the written statement of the appellant if one was filed. The written statement should63 include copies of documents that will be introduced at the appeal hearing, and a list of names and addresses of persons who will testify for the appellant at the hearing. 15.01.140. Procedures on Appeal. The commission shall adopt rules of procedure for the conduct of fair and impartial hearings allowing for a level of discretion in flexibility or formality that is tailored to the level of professional or lay representation at the hearing, and the contentiousness of the issues."' 15.01.150. Findin s and Conclusions. (a) Within 30 days following the close of the hearing on appeal, ' the commission shall adopt and issue its decision in the form of written findings of fact and conclusions of law, including specific references to supporting evidence in the record and transcript, and including specific citations to controlling sections of this Title and the Seward City Code. (b) The adopted findings of fact and conclusions of law shall be signed by the chair of the commission and filed with the city clerk, who shall then promptly deliver or mail a copy to all parties in the appeal. (c) An appellate decision by the commission is final unless an aggrieved party files a timely appeal to the board of adjustment. 15.01.160. Board of Adjustment. (a) The city council sits as the board of adjustment to hear and decide an appeal by any persona aggrieved by, or any party to,6G a final decision by the commission that pertains to any subject matter of this Title affecting the use of a shifts in tone against a party who chose to write a statement and could have disclosed something in that statement, but instead surprised the other side at the hearing. This "should" sentence also gives the chair additional reasons for the exercise of discretion during the hearing (per P&Z Rule 25) to rebalance the proceeding and achieve fairness. ' See footnote 54 above. 6a This new subsection provides clear council authorization for P& Z establishing appeal procedures that can be tightened or relaxed, according to the context of the case on appeal. it is a restatement of the language t recommended placing in Rule 25(b), Planning and Zoning Commission Rules of Procedure. 65 'fhe present ordinance says the decision must come "within 60 days following the tiling of an appeal." I recommend changing it to a date following the close of the hearing. There is always the possibility that the parties will decide by stipulation to postpone the hearing, or, that a party is incapacitated and justice requires postponing the hearing, or, that the commission will decide to continue the hearing to a second or even thud later date in order to get more evidence or to obtain follow-up briefing. There are many possible intervening events that could cause the time -to -decision to be extended to a date more than 60 days after the initial appeal was tiled. 56 This reference to "any party" means that not only private citizens but also the administrative official could appeal a decision of the commission to the city council. specific parcel of land identified in the commission decision,67 including an appellate decision by the commission from an administrative determination (b) An application for appeal from a decision of the commission to the board of adjustment must be filed with the city clerk no later than ten days alter the final decision by the commission. (c) The application shall contain the information described at section 15.01.090 for a commission appeal, and the full record and transcript of all commission proceedings pertaining to the matter on appeal. (d) The appeal notice, timing and record for the board of adjustment hearing shall be developed and shall occur in the same manner and times described in section 15.01.100 for a commission appeal. (e) Written statements on appeal may be submitted to the board of adjustment in the same manner and times described in 15.01.1 10 for a commission appeal. (f) The board of adjustment shall decide the appeal on the full record and transcripts of proceedings before the commission, without taking further evidence or testimony. (g) Within 30 days following the close of the hearing on appeal,68 the board of adjustment shall either issue its decision to include adoption of the findings and conclusions of the commission, or issue its decision in the form of its own written Findings of fact and conclusions of law, including specific references to supporting evidence in the record and transcript, and including specific citations to controlling sections of this Title and the Seward City Code. The adopted findings of fact and conclusions of law shall be signed by the mayor and filed with the city clerk, who shall then promptly deliver or mail a copy to a]I parties in the appeal. (h) A decision by the board of adjustment is Final, unless the aggrieved party files an administrative appeal in the Alaska superior court no later than thirty days after the written decision of the board of adjustment is mailed or delivered to the last known address of that aggrieved party. Unless the court determines otherwise as a matter of law, this administrative appeal shall be submitted and heard on the record.69 67 The reference to "any subject matter ..." means that the board of adjustment hears not only second -level appeals of commission decisions regarding an administrative determination, but also first -level appeals of commission decisions that affect specific parcels of land, if the appellant is an "aggrieved person." b8 "rhe present ordinance says the decision must come "within 60 days following the filing of an appeal." I recommend changing it to a date following the close of the hearing. There is always the possibility that the parties will decide by stipulation to postpone the hearing, or, that a party is incapacitated and justice requires postponing the hearing, or, that the commission will decide to continue the hearing to a second or even third later date in order to get more evidence or to obtain follow-up briefing. "there are many possible intervening events that could cause the time -to -decision to be extended to a date more than 60 days after the initial appeal was filed. " City ordinances cannot govern court procedures for how an administrative appeal will be determined by the superior court, but can only suggest the intention of the city. In this subsection, we define the time for the running of an appeal, and we indicate the intent of the city that this matter should be heard only on the Article 5. Definitions 15.01.170. Definitions. [1 am still working on this section, and should have it completed by the end of the week. The present ordinance contains 202 "definitions," many of which are not necessary, and some of which need editing. I atn culling zoning definitions and sign definitions, and correcting federally required floodplain management definitions. I am providing here only a few of the federal definitions used in the nonconforming use sections.] "New construction"70 means structures for which the "start of construction" commenced on or after the effective date of an applicable ordinance adopted by the City, and includes any subsequent improvements to that structure. "Start of construction" means "Substantial damage" means "Substantial improvement" 7t means any and every reconstruction, rehabilitation, addition, or other improvement of a structure occurring during a period of ten years following the first `-start of construction," where the cumulative market value (as distinguished from actual cost) of the improvements equals or exceeds 40 % of the market value of the structure. This term includes structures which have incurred `'substantial damage" regardless of the actual repair work performed. The term does not, however. include either (i) any project for improvement of a structure to correct existing violations of state or local health, sanitary, or safety code specifications which have been identified by the local code enforcement official and which are the minimum necessary to assure safe living or use of the structure, or (ii) any alteration of a "historic structure," provided that the alteration will not preclude the structure's continued designation as a "historic structure." record below. However, the court could potentially decide — based on state common law — that it wil I hear some or all of the matter "de novo" (at a new hearing taking evidence and testimony). 701 have adopted here the definition found in the FEMA floodplain management regulations, 44 CFR §59.1. The city is required to apply that definition of the tenn to floodplain management regulations, and hence for simplicity and streamlining I have incorporated it into all Title 15 land use regulations. 71 I have adopted here the definition found in the FEMA floodplain management regulations. 44 CFR §59.1, except that I have added a cumulative time of ten years to avoid someone circumventing the law by performing modest annual improvements that cumulatively exceed the "substantial improvement" value. I also have [Delete Fees section 15.01.045 RE fees, and add general "fees" provision to Title 2 Administration.17` [Delete Severability section 15.01.055113 Article 6. Violations and Penalties 15.01.180. Enforcement and penalties. (a) The administrative official shall apply all available74 resources of the Department of Community Development to enforce all planning and use regulations in a fair and equitable manner." (b) The administrative official may issue notices of civil violations.76 and otherwise enforce all planning and land use regulations in accordance with 01.05.010.77 Chapter 15.05. Land Use Planning 15.05.010. Seward Comprehensive Plan. Fees — for all and various purposes of municipal administration — should be addressed at one location. The authority to charge fees is inherent in the administration of municipal government, whether an ordinance authorizes it or not. There is no general, generic statement regarding administrative fees anywhere in the Seward Code of Ordinances. For political purposes, there should be a general fee -related statement, both to obtain from the city council a `'philosophy" of charges, and to guide the administration on how to structure fees. For example, a council might decide (as 15.0 t_045 suggests) that fees should `defray a significant portion of the administration costs associate with [the action]." Or, a council might decide that fees should be nominal and offset by broader taxation. An administration trying to evaluate fee structures needs this policy guidance. 1 am recommending that 15.01.045 be deleted here, and that a new fee statement be inserted in Title 2 Administration. I would suggest not drafting that new section until John Bird completes his efficiency study this summer. 73 This section is superfluous. It is already covered — for the entire Code — at SCC 1.01.040. 74 1 use the word "available" to alert the citizenry that enforcement is limited resource. Without ideal staffing levels, enforcement becomes a matter of triage or "prosecutorial discretion" — a concept recognized and approved (within limits) by the courts. 7$ The Department of Community Development regulariy receives criticism that there is only selective enforcement of land use regulations in Seward. When I was the director, every time someone said that, I probed for more information, investigated the claim, and was always able to show that the understanding of the complaining citizen was incorrect. I added this "fair and equitable" term not only to remind administrative officials to enforce the law thusly, but also to be able to show the public that this balanced enforcement is a matter of taw. 76 We should keep all offenses at the level of"violations" because higher forms of criminal misdemeanor or felony require that the City must fund the costs of prosecution with a right to counsel, jury costs and court - administration costs. 7' My present thinking is that most (but not all) violations of Seward ordinances, and enforcement provisions for Seward ordinances, should be consolidated into one Article in 'Title 1 of the Seward City Code. However, that present provision, at SCC g1.05.010 must be revised. I understand from Cheryl Brookings that she has encountered some maeistrate resistance to that section of the Code, and I need to consult more with her to learn the nature of the problem before redrafting it. The present question: Should the penalty and enforcement section be stated in substance here in Title 15, or should a Title 1 provision be referenced here'., (a) The Seward Comprehensive Plan sets forth the goals, objectives and policies for quality of life, sustainability78 and future development within the city. It is a public declaration of policies reflecting community goals expressed by citizens for the purpose of guiding the actions of appointed79 and elected officials charged with implementing those goals.RO (b) The Seward Comprehensive Plan may consist of such81 duly adopted documents as a comprehensive plan, an airport land use and development plan, a transportation plan, a municipal land management plan, an industrial development plan, a harbor development plan, a flood hazard mitigation plan, and other plans guiding officials charged with implementing the goals set forth in subsection (a) above.' (c) The Seward Comprehensive Plan is adopted here by reference.b3 (1) The administrative official will84 compile for public review all documents comprising the Seward Comprehensive Plan, and all municipal8' resolutions and ordinances adopting and incorporating these documents into the Comprehensive Plan." 79 The present ordinance recognizes only "future development' as a goal and objective of the Comprehensive Plan. In truth, a comprehensive plan addresses development in a broader context including quality of life and sustainability. For example, sustainability is addressed in regulating flood hazard areas and coastal high hazard areas. Quality of life is addressed in separating industrial functions from, e.g., rural residential areas. 79 The present ordinance refers only to guiding "elected" officials. This Comprehensive Plan also should be considered the guide for planning and zoning commissioners, hence I have added "appointed" officials as well. 8o IFhis subsection is a restatement of the second sentence of the present 15.05.010, with one significant change. The word "goals" is used in two contradictory and paradoxical ways in the present ordinance, which says on the one hand that the plan itself reflects community goals, but on the other hand that the plan guides elected officials in setting goals. 1 think the drafters meant to say that the plan reflects goals, and serves to guide elected officials in implementing those goals. " The present ordinance lists specific plans. This codified provision is obsolete (and must be replaced) every time Seward adopts a new plan or modifies a plan. My replacement section refers to plans generically, and allows adoption by reference through a process that need not require re -codification every time a change or addition occurs. 82 I have added this last clause in order to define the types of documents normally integrated into a "comprehensive plan.' For example, it is highly questionable that something so precisely specific as afire department "plan of action" belongs in a municipal comprehensive plan governing land regulation and land development. Future administrators and policy makers still have broad discretion in the redraft, but the redraft does suggest some parameter for what defines a comprehensive plan. R' This statement, together with the material in subsection (b) reduced to generic form, replace the present SCC $15.05.015 "a The word "will' applies where a person is committing himself or herself to do something. ss I use the word "municipal' here because some are borough resolutions and ordinances and some are city resolutions and ordinances. M This subsection I I ), and the following subsection (2) are statements of what a city must do in order to bring the concept of"adoption by reference" into compliance with due process of law. I have however added the clause requiring that the compilation must include adopting ordinances and resolution. I did this because I think the present Seward law and practice is ambiguous. For example, when the City adopted the SBCFSA Flood Mitigation Plan, and the PACAB SMIC Development Plan, did anyone assume that these (2) The administrative official shalls7 make this compilation available for public review at any reasonable time during normal business hours of city administration 15.05.020. Seward Land Use Plan. The Seward Land Use Plan is that portion of the Seward Comprchcnsive Plan defining and depictingRs a classification system of zones for regulating land and waters uses in a balanced manner that integrates compatible uses and separates incompatible uses, and otherwise minimizes conflict among ° land and water uses.91 15.05.030. Manner of Adoption and Amendment of Plans.92 (a) Comprehensive Plan. From time to time, the Seward city council wi1193 request by resolution94 that the Kenai Peninsula Borough assembly95 enact an ordinance adopting or modifying the Seward Comprehensive Plan. Except as otherwise provided in subsection (b) below, no addition to or modification of the Seward Comprehensive Plan is effective until adopted by ordinance by the Kenai Peninsula Borough assembly. documents are now integrated into the Seward Comprehensive Plan? 'they are not. They were simply acknowledged by city council resolution, and never recommended in city council resolution for submittal to the borough assembly for adoption by ordinance. No part of either plan was adopted by city ordinance for incorporation into the land use plan. By requiring an on -going historical record of adopting ordinances and resolutions, 1 hope that this redraft alerts and facilitates new city employees and new council members distinguishing consciously between those plans they want to incorporate into the comprehensive plan, and those documents they simply want to acknowledge for other purposes. R" The administrative official has no discretion here (''may"), and something so basis in law as making documents available to the public should not be a simple commitment by the official to do so ('will"). The mandatory "shall" is more appropriate here. ss The zoning districts 'define," and the zoning maps "depict." I have added "water" for purposes of including a new zone for tidelands, some of which are submerged. J0 Replaces "between." 91 Except as otherwise indicated by other footnotes, this long sentence is a reorganization of the statement in the present § 15.05.020, 1 have retained the verbiage, but changed the syntax in a manner (1 hope) states the intent clearer. 9' This is a new subsection. I am not only embellishing material in the present ordinance, but also distinguishing in separate sections (i) what constitutes the comprehensive plan [§.010], and (ii) what constitutes a land use plan, [§.020] and (iii) the differing ways that these plans are adopted and amended [§.030]. 93 The word "will" applies where a person is committing himself or herself to do something, as opposed to imposing a duty on that person. 94'fhe present ordinance does not specify whether this will occur by resolution or ordinance. The Comprehensive Plan itself must be adopted by ordinance of the KPB assembly, but the recommendation from the city council can be a resolution only. 95 Planning is a borough -wide function under Title 29. As noted in subsection (c), the borough can and does delegate some of that function. However the Comprehensive Plan for Seward must be enacted by borough ordinance and not merely at the city level. (b) Land Use Plan. Pursuant to the authority delegated96 to the city by the Kenai Peninsula Borough, and in accordance with9l Kenai Peninsula Borough ordinances, the Seward city council may by ordinance amend the land use plan98 in the Seward Comprehensive Plan. The administrative official shall notify the borough planning commission in writing of all proposed amendments and all adopted amendments to the land use plan.99 15.05.040. Official Maps.100 (a) Adoption of Official Maps. L01 All land use maps and zoning maps adopted by city council ordinance and bearing an adoption date and attestation by the city clerk10` are official maps adopted by reference here. These official maps shall be available for public review at any reasonable time during normal business hours of city administration. (b),4pplication of Uffi.cial LMaps. 103 As amended by ordinance from time to time,104 these official maps constitute the final authority describing current land use and zoning status of land areas, water areas, buildings and structures within the jurisdiction of the city. "Lost or Damaged" subsection deleted.] t05 (c) Interpretation of Official Maps. The following rules apply to the interpretation of official maps: 16 KPB 21.01.025 reserves to the borough the authority to adopt amendments to a comprehensive plan, but delegates to qualifying cities the authority to amend land use plans — that portion of the Comprehensive Plan classifying zones of regulated land uses. 97 The city is acting from delegated authority, but the city also could have that authority revoked "upon a finding that a city has not complied with the terms of this [borough] ordinance. KPB 2 1.01.025.D Hence.. this revised ordinance requires city action to also be "in accordance with" borough ordinances. " KPB 21.01.025 reserves the authority for the borough assembly to approve all city comprehensive plans.. but delegates to accepting cities the right to amend from time to time that portion of the comprehensive plan known as the `land use plan," the classification system that defines zoning districts. Q0 7"his sentence reflects a notice requirement in the borough ordinance, which was not prescribed in the present city ordinance. Although the borough simply says "the city" shall give notice, I have placed that responsibility on the administrative official. 100 This is my rewrite of 15.01.030. 1 have replaced it here in Chapter 15.05 because 1 think it pertains more appropriately to "Land Use Planning" than to "General Provisions." 10' This is a more accurate subtitle for the subject matter of the subsection than the present ordinance title, "Management." 102 The second clause of this sentence is the substance of subsection (c) of the present ordinance. 103 This is a more accurate subtitle for the subject matter of the subsection than the present ordinance title, "Management." 104 The present ordinance simply says that the maps are the final authority. I can envision a situation where someone inadvertently omits including a change on a map after that change is approved by ordinance. In that event, the governing `law" should be the map plus the subsequent ordinance change not reflected on the map. 105 I have deleted the `lost or damaged" subsection because no such statement is necessary in law. It is a legally axiomatic and self-evident truism that the council must reenact new maps if existing maps are destroyed, and that these new maps supersede the destroyed maps, just as subsequent ordinances supersede previous ordinances. 'fhe city council has the legal authority to create new maps at any time for any purpose, without regard for whether the old maps were damaged or destroyed or remain fully intact. (1) A boundary approximately following the centerline of a right of way106 shall be construed as following107 that centerline. (2) A boundary approximately following a platted lot line shall be construed as following that lot line. (3) A boundary approximately following city limits or a section line shall be construed as following city limits or that section line respectively. (4) A boundary following a marineWs shoreline shall be construed as following the mean high tide line as natural accretion or erosion may change that tide line from time to time, but not as anthropogenic accretion or erosion changes that mean high tide line.1 H9 (5) A boundary following a shoreline unaffected by tides shall be construed as following that shoreline, as natural accretion or erosion may change that shoreline from time to time, but not as anthropogenic accretion or erosion changes that shoreline."" (6) A boundary approximately following the centerline of a stream, creek, river, lake or other body of water shall be construed as following that centerline, as natural accretion or erosion may change that centerline from time to time, but not as anthropogenic diversion, accretion or erosion changes that centerline. "" I have changed "streets. Highways, or alleys" to `'right of way" to ensure the ordinance captures more generically all strips for travel, such as paths, roads, avenues and intersections. 0' Some of the subsections in the present ordinance say "as following," and others say -to follow." For purposes of grammatically correct parallelism, I have drafted all to read "as following." 108 I have distinguished between `marine" shorelines and shorelines unaffected by tides. as two separate subsections, because the mean high tide line defines in law the boundary between a surface estate and a subsurface estate. 169 Riparian law distinguishes between (a) boundary changes caused by gradual and imperceptible, or natural erosion and accretion, and (b) boundary changes caused by anthropogenic actions or omissions. If owner A builds a dock that causes scour of owner B's shoreline, owner B does not lose acreage to C. the owner of the submerged estate (usually tidelands), even though owner B's dry land (upland) is reduced in size. B still owns the newly submerged lands. But if "gradual and imperceptible" or `natural" erosion occurs along B's shoreline, then B does lose acreage to the tideland owner, C. For purposes of land use regulation, the city should not leave open the possibility that someone might manipulate zones and land uses through anthropogenic changes in shorelines or stream -meanders. 10 The "mean high tide" applies to marine shorelines and waterways with tidal effect. The "mean high water" line is the term normally applied to inland water lines unaffected by tides. The "mean high water" line is usually the average water line over 1 '� years. However. Seward poses a unique problem: In an alluvial fan, not only does the water line move, but the submerged surface moves with bedload gravel, and the location of the stream moves and the land itself moves. The Kenai Peninsula Borough is presently working on a method of finding a method for defining the water line in these aberrant geophysical conditions (7) A boundary appearing to be parallel to or an extension of a feature indicated in any of subsections (1) through (6) above shall be construed respectively as parallel to or an extension of that feature. (8) A distance on an official map that is not precisely specified shall be determined by the scale of the map. (9) Any administrative decision interpreting official maps may be appealed to the commission and the board of adjustment in the manner described in sections below. t t t [Delete subsection continuing zoning boundaries into the tidelands, 1 12 particularly "in a cardinal direction."" 31 15.05.050. Land Use Districts. (a) LslablishMenl. The official land use map adopted by ordinance of the city council musts 14 divide the entire city into land use districts consistent with the land use plan as amended from time to time. (b) Districts. tt' " ' The present ordinance says that "other' questions of interpretation shall be interpreted — immediately and directly— by the city council sitting as the board of adjustment. There are many problems with that statement and procedure. First, the planning staff and the commission should have a first opportunity to interpret official maps, because they are most familiar with land use regulation, and the council has delegated land use responsibility to these entities. Secondly, it is inefficient to immediately take an interpretation to the city council, sitting as the highest level of appeal. Many issues could be resolved by staff or by the commission. (As the present ordinance is drafted, no citizen can rely on the interpretation of staff or the commission, because it says the city council `shall [mandatory] interpret the applicable boundaries.) Thirdly, there should not be a focus on "other' interpretations, because even these subsections might lead to a dispute requiring an appeal process. Hence, 1 have placed the first level of all interpretation in the administrative staff, and provided for a standard appeal process applying to all interpretations of the official maps, namely, through the commission and only ultimately to the city council sitting as the board of equalization. � is Tidelands should be treated differently from uplands in land use regulation. Why call tidelands to the south "Central Business District'? Because upland zones presently continue into the tidelands, and because the filled tidelands adjacent to the south boat ramp exist at the intersection of the "Park" district and the "Harbor Commercial" district, the south half of that filled tideland acreage is presently zoned "Park,' and the north half is zoned Ilarbor Commercial." Tidelands should be addressed specifically and precisely in terms of uses, not as mere extensions of upland uses. The present ordinance says that upland zones continue from the shoreline into the tidelands "in a cardinal direction," i.e., changing directions to the shoreline to become directions directly north, south, east or west across the tidelands. But the ordinance does not say which "cardinal direction" the line runs through the tidelands. For example, where the boundary between "Park" and "Central Business District" meet at the shoreline, should the line change to the 'cardinal direction' east or the "cardinal direction" south? r u The word "must` is used in place of -'shall" for a mandatory requirement applying to an inanimate object rather than to a person. (1) Rural residential district (RR). Rural residential means''6 stable, quiet, low density (one or two dwelling units per acre) detached single-family residential development, free from other uses except those which are both compatible and convenient to residents of such a district including recreational, religious and educational facilities of an appropriate scale and design complementary to the neighborhood character. (2) Single-farnily residential district (RI). Single-family residential means stable, quiet, low to medium density (one to five dwelling units per acre) detached single-family residential development, free from other uses except those which are both compatible and convenient to residents of such a district. (3) Two-family residential district (R2,). Two-family residential means medium density (one to seven dwelling units per acre) transitional' �� housing area with a mix of single and two-family units, free from other uses except those which are both compatible and convenient to residents of such a district. (4) Ifulti-family residential district (R3). Multi -family residential means a density level higher than RR, R1 or R2,18 with a mix of housing units that are predominately multi -family units close to concentrations of public services, employment or19 recreation. This district may provide a transition between more concentrated120 and lower density residential areas if sufficient screening and design features are provided to protect multi -family residences from effects inconsistent with safe and healthy residential living.'' (5) Urban residential district (UR). Urban residential means a density level higher than RR, RI, R2 and possibly R3 with mixed residential uses ranging from detached single-family housing to multi -family apartments and with compatible "s The title in the present ordinance says "Definitions — Purposes." 1 chose a new title slightly less definitive and final, and reflecting the generality one actually finds in the descriptions of the various districts. 6 1 have added the word "means" to every subsection defining districts. The present ordinance uses incomplete sentences. 117 I'm puzzled by the use of the word "transition" here. I originally thought it meant that residents were transitioning into greater privacy, better housing. But the OR definition below suggests that the word "transition" applies to the character of the zone itself, shading smoothly from zones on each side. this requires further research and discussion. 'is The present ordinance simple calls for "a higher density residential setting" without a reference point. Higher than what? It should not be left to implication. 1 have incorporated the preceding subsections as the reference points. 119'fhe use of "and/or" creates ambiguities. Usually one can choose which is most appropriate. I have changed the present ordinance from "and/or" to "or.' 120 The present ordinance refers to more "intensive districts and lower density districts." I have replaced "intensive" with "concentrated density" because "intensive" is too ambiguous a word. (It can mean intense, thorough, profound. concentrated. extensive, forceful or emphatic.) '" The present ordinance refers to protecting these multi -family residences from "undesirable effects." That is entirely too subjective a measure for predictability in law. I have changed the standard to "safe and healthy residential living." low impact professional office uses, all located in the area surrounding a central122 business district. (6) Offaceli esidential district (OR). Office/residential means moderate, ' density residential, commercial and office development designed to act as a transition zone between the high density central business district and the density levels of surrounding districts with densities similar to R2 or R3-districts. 124. (7) Harbor commercial district (IIC). Harbor commercial means water -related and water -dependent uses by enterprises engaged in tourist, recreational, commercial or industrial business at or near a harbor location.125 (8) Auto commercial district (4C). Auto commercial means highway -oriented and traffic -oriented commercial activities such as offices, certain institutional uses, related personal services, and retail uses requiring outdoor activities.L26 This district also serves offices and nearby residential areas in a manner that does not materially detract from the nearby residential areas. (9) Central business district (CB). Central business means convenient, attractive,. concentrated commercial development primarily intended for retail, financial, entertainment and professional services occurring within enclosed structures. Regulations applying to this zone are designed to encourage a compact group of businesses of a type that are mutually beneficial and are located close enough together to encourage walk-in trade. (10) Heavy)27 industrial district (HI). Heavy industrial means primarily commercial heavy -industry, manufacturing, primary processing, heavy fabricating, heavy repair, or mass assembly which may create some nuisances and are not associated with nor compatible with residential land uses. Land use regulation for purposes of environmental safeguards are particularly important in this area to protect people employed in or visiting the area. Land use regulation in this area may include some visual amenities for compatibility with adjoining residential or commercial areas. "'The present ordinance says "downtown business district, but the definition of the "central business district" in the present ordinance is not necessarily "downtown." Hence, 1 have changed this reference to "central business district for consistency. 12, 1 have changed "medium density" to "moderate density," because "medium density" has already been defined very specifically in the R2 zone description, and that definition of "medium density" is quite clearly inappropriate in this OR district. 124 The present ordinance refers to "medium -high density residential districts," but we have no such density level described above. The drafter must have meant R2 and R3 density levels. 125 Query whether `industrial" enterprises should be in the HC district definition. 126 1 have changed the syntax in this sentence from the present ordinance, hopefully to make it clearer. "' This zone and the following are new proposals for consideration. There was some discussion among commissioners that perhaps areas like the Lierer Subdivision should not be in the same zoning district as SMIC. I present this idea here for your consideration. (An alternative would be to keep the same number of zoning districts and change the Lierer Subdivision to, e.g. harbor commercial or auto commercial.) (11) Light industrial district (LI). Light industrial means primarily commercial businesses engaged in light manufacturing, value-added processing, light fabricating, repair, light assembly, storage, wholesaling, or distributing operations which may create some nuisances and are not associated with nor compatible with residential land uses. Land use regulation for purposes of environmental safeguards are important in this area to protect people employed in or visiting the area. Land use regulation in this area may include some visual amenities for compatibility with adjoining residential or commercial areas. (12) Institutional district (INS). Institutional means public land reserves,'2s public uses, and private uses of a public character primarily for educational, charitable, public assistance129 and health care purposes130 compatible with the surrounding areas.131 The development standards must assure that the activities provide visual and social"" 2 amenity to the surrounding area. (13) Parks district (P). Parks means publicly accessible'33 scenic, natural, developed recreational or commemorative areas primarily serving leisure, recreational, sedentary or contemplative purposes or other similar purposes for the Public. (14) Resource managerrlem district (RAI). Resource management means lands that are generally undeveloped and cannot be precisely zoned due to inadequate information on the extension of public services and utilities, the suitability of the land to support commercial, residential, industrial or public uses, and other possible environmental considerations. (14) Submerged tidelands district (ST). Submerged tidelands are submerged lands and the water column below the mean high tide. 12' The present ordinance addresses "public land reserve for future public development." I have shortened that reference to allow in this district not only "uses" but -'reserves" for the same purposes. 129 I have added "public assistance" to pick up all of the entitlement programs and help that comes from public and private entities for various needy groups — those public services not necessarily education, charitable (in the true sense) or health care (in the narrower sense). "' I have deleted '`administrative" purposes because that adjective is too broad. Also, that function is implied in the allowance of all o f the other purposes. 1 I have added "compatible with the surrounding areas" to safeguard against the possibility that an 'institutional" prison or drug rehab center might otherwise argue for location near a residential district. 3' I have added "social' amenities. The present ordinance addresses only visual amenities. Like footnote 54, this present change adds to assurances that uses will not be severely incompatible with the surrounding social uses of property. ]" I have changed this definition to include the possibility of a privately owned park accessible to the public. CitygfSeicard, Alaska 4dav 6. 2009 CALL TO ORDER Port and COmmeYee Advisory Board Minutes Volume 3, Paxe 55 The regular May 6, 2009 meeting of the Seward Port and Commerce Advisory Board was called to order at 12:00 p.m. by Chair Ron Long. PLEDGE OF ALLEGIANCE TO THE FLAG led by Chair Long Roll Call There were present: Board Member Ron Long presiding, and Theresa Butts Dan Oliver Darryl Schaefermeyer (12:04) Paul Tougas Absent: Deborah Altermatt comprising a quorum of the Board; and Kari Anderson, Harbonnaster Christy Terry, Community Development Director Anne Bailey, Executive Liaison Chair Long explained that he need to leave for another meeting not later then 1 pm ARRC Representative Louis Bencardino Alaska Railroad Dock Manager — Louis Bencardino reported on the following issues: • Noted that the Railroad docks have been pretty busy with the Crowley barge activity. • Currently in the process of remodeling parts of the terminal building to better assist the customer base. • Along with some bullrail work they have readjusted back flow for longshoreman to read numbers more safely. • Fixed pipeline on freight dock for water back flow. • Included that there will be a local gravel company working on the project • Complimented city water and power guys on a fix. • Hoping the governor will give more money for the dredging and extension of fi•eight dock. • Will be meeting with Harbormaster and City Manager about USCG move in the harbor. • Will need to check with the Anchorage office on the possibility of some Port Security Grant Funds. City of Seward, Alaska Port and Comnierce Advisory Bow-elMinutesMay 6, 2009 Vohane 3, Page 56 • Noted that Tote had to pullout oft he Anchorage port for a few hours last month due to low tides. • Spoke of the christening of new Crowley tug in mid July and the party in the Terminal building to follow. Chamber Report by Laura Cloward Executive Director — The Charnbcr Director Cloward was not present. Administrative Report - Harbormaster Kari Anderson reported on the following items: • On Monday April 27°i there was a 200+ gallon diesel spill in the harbor from a tear in a supply line to Shoreside Petroleum's fuel dock. The tear was discovered by Seward Harbor staff. Shoreside Petroleum has worked with the DEC and USCG on containment and clean-up of the spill. • The Seward Harbor will be working with the Army Corps of Engineers on two projects that received 55.4 million in funding from the American Recovery and Reinvestment Act. These two projects include the extension of the East Breakwater, and dredging within the Harbor. • Northern Economics has completed the SMIC feasibility study. Copies will be made available at the end of today's PACAB meeting, with a work session with City Council planned for May 18"' at 7pm (note the new time). This presentation is not being paid for with funds out of PACAB's budget, the finance director allocated the funds froth SMIC's budget. • Northern Economics prepared a report on the economic importance of Alaska's seafood industry, specifically the industrv's significance to the Alaskan economy. The report is available online at lrttp://www.nnarineconservationalliancc.oru/does/SIAE Jan09.ndf • The Harbor is applied for 2 grants in April. Three additional grants are due before July 1 ". Projects include: ■ 250 ton TraveLifl vessel wash -down station • SSDD vessel transfer expansion ■ SMIC maintenance/storage yard electrical improvements • NE Harbor fish -cleaning station improvement project ($100K match from ADF&G) • Construction for Security (Z) float The legislature has appropriated SO for the FYl O Municipal Harbor Facility Grant program... so the Harbor will be reapplying for this grant program for Z float for FY11. ON of Seward, Alaska Nlav 6, 2009 Port and Connnerce Advisory Bourd Ifinutes Vohime 3, Pu2c 57 • -The Renewable Energy Alaska Project (REAP) is pleased to be hostuig The Business of Clean Energy in Alaska: Bringing the Last Frontier to the Cutting Edge, a two day conference at the Dena'ina Center in Anchorage May 18-19. • The NPDS permit is in the EPAS hands now. We have to issue a notice of intent and send Storm Water Pollution Plan (SWPP) to them, so they have to review it. Community Development Director Christy Terry reported on the following items: • Explained dates ofcode revision for title 15. Notes will be distributed on 5/15/09 to Planning and Zoning and PACAB for discussion at the work session on the 19`' at 7:30pm. Will advertise it as ajonrt work session. • There will be many work sessions. • Harbor chapter of title 7 and Harbor Tariff scheduled with PACAB on July 15`". Revisions will be supplied two weeks before. • 5/11/09 council will address the PACB priorities and north harbor recommendations made on the 4`h Citizens' comments on any subject except those items scheduled for public hearing - Approval of the Agenda and Consent Agenda Russ Maddox spoke • Rail Road will be coming to the Council meeting on May 26`" and will answer questions that came up in community forum that he attended. • Going to REAP conference and suggested that the Utilities Manager attend. • Coal forum on May 71h at the Institute of Marine Sciences. Alaska Center for the environment is puttuig it on and RBCA is hosting. • Commended Harbormaster Anderson on how good everythitig is running in the Harbor as well as SMIC. Motion (Butts/Tougas) Motion Passed Approve the Agenda and Consent Agenda Unanimous Consent The following items were approved under the Consent Agenda as amended: * April 1, 2009 Regular Meeting Minutes Unfinished Business - None City of Seia ard, Alaska Mav 6, 2009 New Business- none Port and COn7n7eree Advisory Board Minutes Volume 3, PQQe 58 Resolution 2009-04, Recommending Council Approval of PACAB Priorities from April2009 to April 2010 Motion (Schaefermever/Tougas) Approve Resolution 2009-04 • Oliver would like to see the AARV higher on the priorities list. Including that the Chancellor ofthe University will be visiting Seward the 23`d and 24"' ofJuly to see SMIC and SeaLife center. • A discussion on the wording of the priorities list 46 and the infrastructure to support the vessel. The job of the board is to describe how to avoid problems and present the best case scenario. Amendment to Resolution 2009-04 section 1. Priorities # 6 to read: AARV — Identify specific ways to secure home porting in Seward. Motion (Butts/Oliver) Motion Passed Approve Resolution 2009-04 Unanimous Consent yes Resolution 2009-05, Supporting a Council Recommendation that the State of Alaska revoke it's March 20, 2006 Navigability Determination as to Salmon Creek, Fourth of July Creek and Sawmill Creek, All Located in the Vicinity of Seward, Alaska Community Development Director Terry spoke of the importance of the revocation of the creeks mentioned due to the current gravel surcharge. The Flood Plane Task Force as well as the Flood Board have both voted in favor of this resolution as well as 2009-06. PACAB's resolution is framed in such away that it will go to City Council with PACAB's recommendation and then on to the State. Long included that the Flood Plane Task Force is also and advisory body to the Kenai Borough Assembly. The idea was to get as many bodies as possible signed on to adopting this resolution to get the widest base of support at the State level. In response to Butts, Chair Long discussed that there arc no real draw backs to this Resolution. Motion (Tougas/Schaefermeyer) Motion Passed Approve Resolution 2009-05 Unanimous yes Citv of Sovard, Alaska Port and Commerce Advisory Board Minutes Mav 6, 2009 Volume 3, Page 59 Resolution 2009-06, Supporting a Council Recommendation that the State of Alaska Exempt Flood Mitigation Projects in the Seward Area From the Gravel Royalty Fee, as itApplies to All Waters Flowing into Resurrection Bay, in the Vicinity of Seward, Alaska Community Development Director ferry made the board aware that if the navigability on those rivers is not revoked then we are still dealing with the royalty fee. In the case of Resurrection River and Jap Creek we agree with the navigability determination. We have to pay a royalty fee on gravel extraction. This resolution recommends that if it's a flood mitigation project that the royalty fee not charged because of the reason that gravel is being taken out ofthat creek. This resolution also passed the Flood board. Motion (Schaefermeyer/Butts) Motion Passed Discussion Approve Resolution 2009-06 Unanimous yes In response to Schaefermeyer's question as to weather Jap Creek is or is not navigable, Community Development Director Terry said both. It goes back and forth depending on where you are, however Jap Creek is that only stream listed hi the 2006 determination as navigable. Someone subsequently revoked that determination. Resurrection River is detennined navigable. Chair Long responded to Schaelermeyer' s question regarding what are the allowances for use of the gravel that is extracted from these creek's, if it's deemed non-commercial, by saying that was intentionally left a bit vague. The two primary operators collecting gravel in the Resurrection River are patented. Chair Long responded to Butts question of weather a creek is state or private property depending on it's navigability by stating that is it is not the land itself but the gravel under the water. New business Appoint Board Member Butts to attend the Business of Clean Energy hn Alaska Conference on May 18-19, 2009 and moved to pay the registration fee from PACAB funds Motion (Tougas/Schaefermeyer) Motion Approved Discussion — to send Board Member Butts to REAP Unanimous consent Responding to Chair Long's question of what the fee for the REAP conference Russ Maddox City o/ Seward, Alaska Port a»d Commerce Advisory Board zWiuutes dlav 6, 2009 Volume 3, Page 60 informed the Board that it is S225 to register and attend. Butts explained that she was willing to go to this conference as well as the SMIC feasibility study, if the Board was will to help pay for her trip. Motion (Schaefermeyer/ Tougas) Business of Alaska Conference Motion Passed Discussion: To appropriate $225 for Butts to Attend the Renewable Energy Alaska Project (REAP) Clean Energy in Unanimous yes Long touched on the key points of items on the Priorities List. That the board explores Seward energy options and the other is ways to expand activity within the City and conunerce within the City and the Port. He also noted that the Utility Manager attend if possible. Harbormaster Anderson encouraged the board that a presentation by board member Butts be put on the agenda for the next regular meeting on June 3`d. Correspondence, Information Items and Reports (no action required) — PACAB Budget Update f larbormastcr Anderson spoke of: • Liaison change from Anne Bailey to Angela Buck • Harbor to start monitoring the PACAB budget • Harbormaster Anderson will bring a Budget update to each regularly scheduled meeting. • Harbornaster Anderson will bring the update to the budget that was passed in 2008 for 2009 to the next meeting. 2009 Economic Forum Update Community Development Director Terry announced that there is a neutral facilitator on standby for the work session on the 1 1 `' at 6pm, and for the regular meeting on the 13`", and requested that the members of the board please attend. She also discussed the tormat of these meetings. Chair Long briefly addressed the following topics; • The SMIC Feasibility Study has been rescheduled for May 18, 2009 at 7:00 p.m. • May 13, 2009 Economic Forum Information Cit}+ o� Seward, Alaska Pon and Commerce Advisory Bomrl WilidteS , fay 6, 2009 Volume 3, Page 61 • Pavilion Painting Volunteers Needed Board Comments - Chair Long spoke of the Kenai Peninsula Assembly meeting that did result in a very close vote to continue funding education to the cap one more time. Citizen Comments [S ininutes per individual -Each individual has one opportunil>> to speak.] - None Board and Administrative Response to Citizens' Comments- None Adjournment Chair Ron Long adjourned the meeting at 1:01 p.m. Angela Buck Ron Long Harbor Master Department Chair (City Seal)