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HomeMy WebLinkAboutRes1990-027 . . . Sponsored by: Mayor and Council CITY OF SEWARD, ALASKA RESOLUTION NO. 90-027 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, SITTING AS THE BOARD OF ADJUSTMENT, ADOPTING A DECISION ON APPEAL FROM DECISION OF THE SEWARD ADVISORY PLANNING AND ZONING COMMISSION WHEREAS, subsequent to public hearing, the Seward Advisory Planning and Zoning Commission denied an application for a conditional use permit filed on behalf of Seward Associates for the construction of three eight-plex housing units; and WHEREAS, the owner of the property has appealed the decision to the City Council as the Board of Adjustment; and WHEREAS, in Resolution No. 89-019, the City Council sitting as the Board of Adjustment adopted a decision on appeal, which was further appealed to the superior court and reversed for further consideration by the Board of Adjustment; and WHEREAS, the Board of Adjustment reconsidered the entire record, has held another hearing, deliberated subsequent to that hearing, and has instructed the city attorney to prepare for the Board a written decision incorporating the reasons and decision of the Board; and WHEREAS, the decision attached to this resolution and incorporated herein by reference constitutes the decision of the Board of Adjustment; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section 1. The decision of the City Council of the City of Seward acting as the Board of Adjustment attached to this resolu- tion is adopted. Section 2. This resolution shall take effect immediately upon its adoption. PASSED AND APPROVED by the City Council of the city of Seward, Alaska, sitting as the BOARD OF ADJUSTMENT, this 27th day of March, 1990. THfjCITY OF SEWARD, ALASKA CbJ~~~ .~. David L. H~ ton Sr., Vi~e Mayor -1- . . . CITY OF SEWARD, ALASKA RESOLUTION NO. 90-027 AYES: NOES: ABSENT: ABSTAIN: ATTEST: Burgess, Hilton, Meehan, Simutis None Dunham Noll, Sieminski APPROVED AS TO FORM: Perkins Coie, Attorneys for the city of Seward, Alaska y~~ ~-~. Patricia J. Jones Acting City Clerk (City Seal) Fred?~r%~ City Attorney -2- . . . CITY OF SEWARD BOARD OF ADJUSTMENT IN RE: An application for ) Conditional Use Permit ) As Filed by Seward Associates ) ) ) ) ) Lot lA, Jesse Lee Heights Addition Number 4 (Plat 89-18, recorded 06/26/89), previously described as Lots l, 2, and 3 Jesse Lee Heights Subdivision No.3 (Plat 85-3) "CE.\\I'~' DECISION ON APPEAL AFTER REMAND FROM SUPERIOR COURT O "lce'l Mi\R 3 l;:).J'" OffiCe. OF ,Ht: C\1'l CLERK March 27, 1990 . . . TABLE OF CONTENTS rage. I. Introduction 1 II. Background 2 III. The Record 7 IV. Conditions for Granting a Conditional Use Permit A. Use Consistent with the Purpose of Zoning 1. Consistency with Zoning Code Purpose a. Designating, ., .Location and Uses b. Regulating and limiting the height . c. Regulating and determining the size d. Regulating and limiting the density e. Conserving and stabilizing the value f. Providing adequate open spaces g. Preventing undue concentration. . . h. Lessening congestion . . . . . . . . 2. Consistency with Zoning District Purpose B. Value of Adjoining Property . . C. Proposed Use/Comprehensive Plan. . . . D. Public Services and Facilities . . . . E. Suitable Location. . . . . . . . . . . F. Advisory Planning Commission Conditions 9 9 10 11 12 12 12 12 l6 16 17 17 l8 2l 21 22 22 V. Conclusion . . . . . 23 . . . CITY OF SEWARD BOARD OF ADJUSTMENT IN RE: An application for ) Conditional Use Permit ) As Filed by Seward Associates ) ) ) ) ) Lot lA, Jesse Lee Heights Addition Number 4 (Plat 89-18, recorded 06/26/89), previously described as Lots l, 2, and 3 Jesse Lee Heights Subdivision No.3 (Plat 85-3) I!t:ClSIOILQtt AJ:'~~_ AF't.E;R REMAND FROM SUPERIOR COURT I. Introduction: This matter initially came before the Seward City Council acting as a Board of Adjustment (the "Board") on an appeal from a decision of the Seward Advisory Planning Commission (the "Commis- sion") denying an application for a conditional use permit. The Board reversed the Commission and remanded for the issuance of a conditional use permit. The Board's decision was appealed to the Superior Court by Seward Property Owners Association. The Court declared the Board's decision was void, and remanded the matter to the Board for further consideration. For the reasons set forth in this decision, and based upon our re-examination of the entire record, we reverse the decision of the Seward Advisory Planning and Zoning Commission and we remand the matter to the Commission for the issuance of a conditional use permit including those conditions set forth in the memorandum of Mr. Kerry Martin to the Commission dated December 10, 1988, and such further additional conditions as the Commission may find necessary. Decision/Conditional Use Permit/Page 1 of 24 032790 II. BackQround: . In this case the Seward City Council is acting as a Board of Adjustment in accordance with the provisions of .Kenai Peninsula Borough Code ~ 21.78.450 and Seward City Code ~ 15.01.025.1/ On September l, 1988, an application on behalf of Seward Associates was made with the City of Seward for the approval of a conditional use permit to construct a 24-unit Farm Home Admini- stration (FmHA) financed apartment project in Seward, Alaska on Lot lA, Jesse Lee Heights Addition Number 4 (Plat 89-18, recorded 06/26/89), previously described as Lots l, 2, and 3 Jesse Lee Heights Subdivision No.3 (Plat 85-3). Although the application indicated that this was "Phase I" of a planned 40-unit complex, throughout the course of the public hearings discussion has been . restricted to the pending application which is for a 24-unit complex. We view the merits of an application for an additional l6-units of housing to be severable from the issue before us in this case and our decision in this case should not be considered to pre-judge any subsequent applications for 1/ Since February 27, 1989, the date the Board adopted its initial decision in this matter, the Kenai Peninsula Borough has delegated zoning powers to the City of Seward. The City's zoning code is now found in Seward City Code Title l5 as adopted by Ordinance 626. The substantive zoning provisions were not changed by Ordinance 626, but changes in procedures were made. For consistency with prior proceedings, we will continue to refer to the substantive provisions of the Kenai Peninsula Borough Code with footnote citations to current city code provisions. References to procedural provisions will be to the Seward City Code or the Kenai Peninsula Borough Code as appropriate in the context. . Decision/Conditional Use Permit/Page 2 of 24 032790 . . . additional units. Each application must be treated on its own merits. The City administration verified ownership of the property through the Kenai Peninsula Borough tax records and, since the property was vacant, the City accepted a copy of the recorded subdivision plat in lieu of the customarily required as-built survey. When a conditional use permit was applied for the Kenai Peninsula Borough Code (KPBC) provided that a public hearing shall be held before the Seward Advisory Planning and Zoning Commission. In accordance with the public notice provisions of KPBC ~ 21.78.540-560, notice was given of a hearing on the application. A hearing was held on November 2, 1988, before the Commission. At that hearing, the Commission received a substantial amount of written and oral testimony including statements by the applicant and local citizens. The Commission took note that it had received thirty-one letters in opposition to the project and one letter in support. Prior to discussion of the merits of the permit application, individual Commission members made disclosures of any potential conflict of interest problems, and rulings were made with respect to each such disclosure prior to discussion by the Commission of the merits of the application. A motion to grant the conditional use permit subject to the items listed by Administrative Assistant Kerry Martin in his Decision/Conditional Use Permit/Page 3 of 24 032790 . . . October 17, 1988, memorandum to the Commission was made. The Commission, after discussion, indicated additional information would be useful prior to rendering a decision. A second public hearing was held on December l4, 1988, (the earlier December 7, 1988, hearing was rescheduled, with notice). At that hearing, the Commission received additional oral testimony from six individuals in opposition to the development including a representative of the Seward Property Owners Association. In addition, Mr. James Hardy representing the developer, and the owner, Mr. Frank Irick, spoke at the hearing. It was also reported that the Commission had received an additional 23 letters objecting to the proposed development including l3 from property owners represented by a local real estate broker. On call of the question, the Commission voted 2-2 in favor of granting the conditional use permit application. Since this represented less than the required majority, the motion failed and the application was denied. The city attorney was instructed to draft a decision of the Commission for circulation and adoption. Subsequent to the issuance of its written decision, the property owner and developer appealed. Again, a public hearing was scheduled, this time before the City Council of the City of Seward acting as a Board of Adjustment. That public hearing was postponed at the request of the Seward Associates (again with public notice) and a public hearing was held February 20, 1989. Decision/Conditional Use Permit/Page 4 of 24 032790 . . . At the public hearing counsel for Seward Associates made a presentation and several persons testified in favor of the project. In addition, a representative of the Seward Property Owners Association spoke against the project as did several citizens speaking on their own behalf. Prior to discussion by the Board, Board member O'Brien stated that he felt he had a substantial financial interest in the application in that he owned a substantial amount of rental property in Seward which he believed was in competition with the proposed development. The Mayor ruled that a conflict was present and Mr. O'Brien did not participate in the discussion at the Board hearing nor did he participate in any of the Board's deliberations. Board member Noll requested advice from the city attorney at the meeting as to whether he, too, had a substantial financial interest in the matter as he is an adjoining property owner. Counsel advised that since the Commission had found that the project would have an adverse impact on adjoining property Mr. Noll should ask to be excused. The Mayor ruled Mr. Noll was disqualified, and he, too, did not participate in the discussion or deliberations of the Board. The Board took the matter under advisement and scheduled a session to deliberate on the appeal in executive session under the provisions of AS 44.62.310(d)(l). After the Board's deliberations 1n executive session, a draft written decision was prepared. At the regular City Council meeting of February 27, 1989, the City Council sitting as the Decision/Conditional Use Permit/Page 5 of 24 032790 . . . Board of Adjustment approved Resolution 89-019 adopting the written decision. That decision reversed the Commission and instructed it to issue a conditional use permit for the project.ZI The Seward Property Owners Association appealed that decision to the Superior Court. On January 24, 1990, Superior Court Judge 2LQ tem William H. Fuld issued his decision on appeal. In it he concluded that the Seward City Code in force at that time did not permit an executive session for Board of Adjustment deliberations. He declared this Board's decision of February 27, 1989, to be void, and further stated, "THE MATTER IS REMANDED to the City of Seward for further consideration of the appeal from the Seward Advisory Planning Commission. Unless the Seward City Code has been amended since this appeal was taken, the public hearing on the issue and the deliberations and the adoption of the findings should be open to the public." On November 6, 1989, the City of Seward passed Ordinance 626 which did amend the Seward City Code with respect to deliberations by the Board of Adjustment. Seward City Code ~ 15.l0.415(C) now provides as follows: 2/ The conditional use permit was issued and the project has now been constructed according to the terms of the permit. In the Brief of Seward Property Owners Association on Remand we are urged not to consider this fact. We do not consider this fact, nor have we admitted or considered any other new evidence since our previous decision. In reaching today's decision we have, as urged by Seward Property Owners Association, put ourselves back in the same position we were in before making our original decision. Decision/Conditional Use Permit/Page 6 of 24 032790 . . . The hearing, and any reconvenings thereof, shall be open to the public; however, the hearing agency may vote to recess to a closed, executive session, in order to deliberate and prepare its findings of fact and conclusions of law; provided, that final action shall be voted upon in open session. A hearing was scheduled for February 26, 1990, for the Board of Adjustment to re-hear the appeal from the Commission's deci- sian of December 14, 1988. Public notice was given. At the February 26, 1990, hearing, the Board postponed the hearing until March 12, 1990. Public notice of the March 12 hearing was given and the parties, including Seward Property Owners Association, were notified. At the March l2, 1990, appeal hearing only Michelle Minor, attorney for developer Seward Associates, spoke. Written briefs from Seward Associates and from the Seward Property Owners Association had already been received. No new evidence was received. At the close of the hearing, the Board decided to deliberate on the matter in executive session under the authority of Seward City Code ~ 15.10.4l5(C). The Board deliberated the appeal after the close of the March l2, 1990, City Council meeting. The city attorney was requested to prepare a draft written decision for consideration by the Board. III. The Record: The Board has considered the entire record presented to it on February 13, 1989, as well as some additional materials described below. The record presented on February 13, 1989, Decision/Conditional Use Permit/Page 7 of 24 032790 . . . included the appeal by the petitioner (Brief on Appeal to Board of Adjustment), letters from the developer and from Mr. James Hardy of the National Survey and Syndication Affiliates, as well as the decision of the Planning and Zoning Advisory Commission, the notices of the public hearings, and minutes of the January 23, 1989, city council meeting including minutes of the pUblic hearing before the city council. In addition, the Board had before it three separate memoranda from the city administration with respect to the application, the original application and a litigation report of the property, as well as a substantial amount of material consisting of letters both for and against the application. The Board also had before it the written materials assembled for the Commission hearings. In addition, written materials including letters from the Seward Property Owners Association dated February l2 and 13, 1989, were submitted. The materials presented to the Board of Adjustment prepared subsequent to the February 13, 1989, hearing were included in a bound volume dated February 26, 1990. That volume included verbatim transcripts of all previous hearings of the Commission and the Board concerning this matter. Minutes of City Council meetings relating to this matter dated February 13, 1989, and February 27, 1989, a copy of the decision on appeal by Judge Fuld, briefs filed by Seward Associates and Seward Property Owners Association, and public hearing notices were also included. Decision/Conditional Use Permit/Page 8 of 24 032790 IV. Conditions for GrjLntin9 a Conditional U~ermit: . The conditions that must be satisfied prior to granting a conditional use permit are set forth in KPBC ~ 21.78.2803/ as follows: . 2l. 78.280 CondJ..tJ_QJHLL1!;LEL.Qermi ts--Qe~ra~ provi..s.-iQIlS. Prior to granting a use permit I it shall be established that the use satisfied the fallowing conditions: A. The use is consistent with the purpose of this chapter and the purposes of the zoning district; B. The value of the adjoining property will not be significantly impaired; C. The proposed use is in harmony with the comprehensive plan of the city of Seward adopted by the assembly; D. Public services and facilities are adequate to serve the proposed use; E. A more suitable location for the use is not readily available; F. Any and all specific conditions deemed necessary by the advisory planning commission to fulfill the above-mentioned conditions shall be met by the applicant. We shall address these conditions in order. A. The use is consistent with the purpose of this chapter and the purpose of the zonina district. These criteria require examination of both the general purposes of the zoning code and the purposes of the R3 zoning district in which the property in question is located. 31 Seward City Code ~ 15.10.320(B) . Decision/Conditional Use Permit/Page 9 of 24 032790 . . . 1. Consistency with the Purpose of t~zoni_ng ~. We will first address the purposes of the zoning code as set forth in KPBC ~ 2l.78.020:~1 21.78.020 Purpose of provisi~. This chapter is adopted in order to protect the public health, safety and welfare by: A. Designating, regulating, and restricting the location and use of buildings, structures and land, for residence, commerce, trade, industry or other purpose; B. Regulating and limiting the height, number of stories and size of buildings and other structures hereinafter erected or alterations of any existing buildings; C. Regulating and determining the size of yards and other open spaces; D. Regulating and limiting the density of population; E. Conserving and stabilizing the value of property; F. Providing adequate open spaces for light and air, and to prevent and fight fires; G. Preventing undue concentration of population; H. Lessening congestion on streets and highways. The overriding purpose of the zoning code is to protect the public health, safety and welfare. The general means for accomplishing this are set forth in the eight subparagraphs of the section. Therefore, we must look at each of these eight subparagraphs in order, to determine whether the project is consistent with the general purposes of the zoning code. ~I Seward City Code ~ 15.10.115 Decision/Conditional Use Permit/Page lO of 24 032790 . . . a. Desiqnatinq. reg~latinq. and restricting the location and use of buildings. stKUct~res anQ~~_~ for residence. commerce, trade. industrv or other ~urpose. Through the adoption of the zoning map, the creation of zoning districts, and the adoption of district regulations, the overall plan of designation, regulation and restriction of the location and use of the land for the various purposes. including residential, has been established. The property in question is located in the R3 zoning district which is specifically "intended to stabilize, protect and encourage a suitable environment for high-density, multi-family residential living". KPBC ~ 21.78.130.51 The proposed use, which is high-density multi-family residential, is consistent with this purpose and therefore is consistent with KPBC ~ 2l.78.020(A). b. Regulating and limiting the height. number ~tories and size of buildinqs and other struct~res hereinafter erected or alterations of any existing buildings. Specific standards for building height, number of stories and size are set forth In KPBC Table 2l.78.l80.Q1 The plans for this project indicate that it will conform to those requirements for the R3 zone. 2/ Q/ Seward City Code ~ lS.lO.2l0(B)(4) Seward City Code Table 15.10.220 Decision/Conditional Use Permit/Page II of 24 032790 . . . Memorandum to Commission from Kerry Martin, December 10, 1988, page 5 (hereinafter "Martin 12/l0/88 memo"). c. Regulatina and determinina the size of yards and other open spaces. In the R3 zone, the minimum front yard is 20 feet and minimum side and rear yards are 10 feet while maximum lot coverage is 40 percent. KPBC Table 21.78.180.11 The yards and open space proposed by Seward Associates exceed these minimums. The buildings would cover approximately 16 percent of the proposed site (Martin l2/l0/88 memo at 6). The project is consistent with these regulations. d. Regulating and limiting the density of population. City staff member Kerry Martin calculated that the zoning code as written would allow for 52 dwelling units in 13 four-plex structures on the proposed site (Martin l2/10/88 memo at 6). The planned 24 dwelling units in three structures is less than half of the density allowed. The project satisfies this condition. e. Cons~rvi_ng and stabilizing tW-Yi!.lJ.!!L.9t. pro~erty. This subsection states that one of the means to accomplish the general purposes of the zoning code is by "conserving and stabilizing the value of property". As to this phrase, we observe that it is 1/ Seward City Code Table 15.10.220 Decision/Conditional Use Permit/Page 12 of 24 032790 . . . only one of several means by which the general purposes of the zoning code (~, protecting the general health, safety and welfare of the public) are to be accomplished, It is only generally incorporated by reference into the conditions that must be considered before granting a conditional use permit. As such, it is not the overriding criterion, nor is it even a principalcriterion, upon which the granting or denial of a conditional use permit must hinge. A review of the record indicates there was much public testimony and written opposition to this project which argued that construction of this 24-unit complex would increase the vacancy rate for rental properties in Seward, thereby reducing the value of other rental properties city-wide and single family properties as well. This is a very strong and clear argument that the conditional use approval process should be used in this case as a means of limiting competition for other residential rental property owners in the City of Seward. We reject this as being an improper argument and a factor which should not be considered in the conditional use granting process. Instead, we interpret the phrase "conserving and stabilizing the value of property" as Ilaving a much broader, more general application. The means by which the zoning code conserves and stabilizes property Decision/Conditional Use Permit/Page 13 of 24 032790 . . . ~ values is by grouping similar uses in specific geographic areas, by imposing height and yard restrictions, requiring open space and separations between buildings, and the like. The purpose is to improve the overall organization and appearance of the City for the benefit of all, thereby "conserving and stabilizing the value of property". This phrase was never intended to preclude one property owner from developing his property for the economic benefit of others with similar developments. At the Board of Adjustment hearing of February 13, 1989, Seward Associates' attorney made the following argument: It is our position that the conditional use permit was wrongly denied and that Planning and zoning was used as a forum for attempting to control the amount of housing available in Seward. That's not the purpose of a Planning and Zoning commission. Planning and Zoning is to place appropriate conditions and restrictions upon the development of property for the benefit of the adjacent landowners as well as for the benefit of other residents of the city. The need for additional subsidized housing in Seward is not a question that is appropriately addressed at Planning and Zoning. We agree. Whether additional housing units should be built in Seward, either subsidized or nonsubsidized, is an issue that must be resolved either through competitive market pressures or through changes in the ordinance through the legislative process. As the code stands at this time, the legislative policy Decision/Conditional Use Permit/Page 14 of 24 032790 . . . decision has already been made to allow multi-family high-density residential development in the R3 zoning district, which includes this property. Whether that constitutes wise policy and good law is a matter that can properly be addressed to the City Council at another time as a request for a change of the ordinance. Public debate over such an issue would be encouraged in that forum. However, in addressing an application for a conditional use permit, neither the Commission nor the Board acts in a legislative capacity. Rather, we act in a quasi-judicial capacity and must apply the law as written without considering the wisdom of the policies articulated in the law. As has already been mentioned, the purpose uf the R3 zoning district is to "stabilize, protect and encourage a suitable environment for high-density multi-family residential living". The establishment of such a zone, and the creation of its specific boundaries, constitutes a policy decision already made by the Kenai Peninsula Borough Assembly that the best manner of achieving the overall purpose of "conserving and stabilizing the value of property" on a city-wide basis is to restrict multi-family residential housing to this particular zone. This allows properties in other areas of town to rise to their highest and best uses as, for example, single family residences, general Decision/Conditional Use Permit/Page 15 of 24 032790 . . . commercial properties, industrial properties, and so forth. We conclude, therefore, that the construction of the proposed 24-unit complex on the property in question within the R3 zone is consistent with the purpose of generally promoting public health, safety and welfare by conserving and stabilizing the value of property city-wide according to KPBC ~ 2l.78.020(E).81 f. Providing adequate o?en spaces for liqht and air, and to prevent and fiqht fires. As noted above, the planned buildings will cover only 16 percent of the area of the lots in question. Separating the units into three buildings will provide ample open space for light, air circulation and fire prevention and fighting (Martin 12/l0/88 memo at 6). This goal of the zoning code is met. g. Preventing undue concentration of Qopulation. The zoning code accomplishes this goal by separating the City into districts of various residential densities and establishing minimum yard sizes, maximum lot coverage, and other restrictions within those districts. This 24-unit complex in the multi-family district is well under the maximum density and lot coverage requirements, and is therefore consistent with this goal of the zoning code. al Seward City Code ~ 15.10.l15(5). Decision/Conditional Use Permit/Page 16 of 24 032790 . . . h. Lesseninq congestion on streets and hiqhwavs. The streets in the vicinity of this project are intended to handle traffic from multi-family residences of a density up to more than double that proposed by this project. Traffic will, of course, increase. This must happen when vacant land is converted to a 24-unit apartment complex. However, the fact that traffic will increase in no way implies that congestion will be a result. This lower than maximum capacity project will not present a traffic congestion problem beyond that anticipated by the zoning of this district. Having reviewed the eight subparagraphs of KPBC ~ 2l.78.020, we conclude that this project is consistent with the general purposes of the zoning code, which are to protect the public health, safety and welfare. 2. Consiste~cY with the Purpose of the Zoni~ District. The next step in determining whether the proposed use satisfies KPBC ~ 2l.78.280(A) is to determine whether the use is consistent with the purpose of the zoning district. Since the zoning district in question is R3, which is "intended to stabilize, protect and encourage a suitable environment for high-density, multi-family residential living", Decision/Conditional Use Permit/Page 17 of 24 032790 . . . KPBC ~ 2l.7B.l30,2/ and the proposed project is one of moderate to high-density, multi-family residential structures, we also conclude that the proposed project is consistent with the purpose of the zoning district. The foregoing, lengthy discussion has taken us only through the first subparagraph of KPBC ~ 21.78.280. We must now continue to address the remaining five subparagraphs of that section which impose additional conditions that must be met prior to granting a conditional use permit. B. The value of the adjoininG property will not be significantlY impaired. Before beginning to discuss the evidence as to possible impairment of property values, we feel it is necessary to discuss just what it is that this subparagraph requires us to examine. First, the property values that are to be considered are those of "adjoining property". The term "adjoining" is not defined in the KPBC nor in the Seward City Code. The term is defined in Nebsters Third New International Dictionary (Unabridged 1981) as "touching or bounding at some point or on some line; near in space," and in Black's Law Dictionary (5th Ed. 1979) as "touching or contiguous, as distinguished from lying near to or adjacent. To be in contact with; to abut upon." We conclude that "adjoining property" means that contiguous with, abutting upon, or touching the property in question. 21 Seward City Code ~ l5.l0.2l0(B)(4) Decision/Conditional Use Permit/Page l8 of 24 032790 . . . Next, this subparagraph states that the value of adjoining property must not be "significantly impaired". We interpret this phrase to mean more than a mere decline in property values. A significant impairment must be a substantial and permanent decline in property values. with this 1n mind, we have re-examined the entire record presented to us at the February l3, 1989, hearing and those additional materials presented to us at the March 12, 1990, hearing, including the verbatim transcripts of all prior public testimony before the Commission and the Board. In response to the urgings in Exhibit A to the Brief of Seward property Owners Association on Remand, dated February 20, 1990, we have paid particular attention to the "expert testimony"lQl from John Williams, Hayden Green, Jerry Hobart, Robert Schaafsma, Chet Hawker, Katherine T. Taylor, Connie Bencardino, Violet Larsen, and Patrick O'Brien. Nowhere in the record, including the written materials and transcripts of live testimony of those named individuals, could we find any substantial evidence indicating that the value of adjoining property would be significantly impaired by construction of the proposed project. There were claims made that the value of other property in Seward (rental property in particular) would be impaired by the project, and certainly there was a high level of opposition lQ/ We make no determination as to whether the testimony and letters submitted by these individuals qualifies as expert testimony. Decision/Conditional Use Permit/Page 19 of 24 032790 . . . to this project. No one, however, testified as to the specifics of any impairment of the value of any piece of adjoining property. There was simply no evidence presented upon which reasonable persons could rely to conclude that it is likely that the value of adjoining properties will be significantly impaired by construction of this project. We also think it is legitimate to compare the extent to which the proposed conditional use might affect adjoining property values with the extent to which uses permitted outright might affect adjoining property values. The proposed project is for three buildings with a total of 24 dwelling units. Four-plex multi-family dwellings are permitted outright in this zoning district. The property in question is large enough that it could be divided into smaller lots so that 52 dwelling units could be constructed without the imposition of any conditions through the conditional use permit process (Martin l2/l0/88 memo at 6; transcript of Commission hearing of November 2, 1988, at 3 and 8). That would be 52 dwelling units in l3 buildings permitted outright compared with 24 dwelling units in 3 buildings under a conditional use permit. We have been presented with absolutely no evidence to suggest that the 24-unit 3 building complex would have any greater negative effect on the value of adjoining property than would a 52-unit 13 building complex, which would be permitted outright. We suspect that the negative effect of the latter would be considerably more than any negative effect that might result from the proposed project. Decision/Conditional Use Permit/Page 20 of 24 032790 . . . In our view, the impairment of adjoining property values by a proposed conditional use must be greater than the impairment of property values by uses permitted outright before it becomes a legitimate item to consider as justification for denial of a conditional use permit. In the complete absence of evidence to that effect, we conclude that there is no basis for the Commission's conclusion that the value of adjoining property will be significantly impaired. We must now return to our consideration of the remaining conditional use permit considerations. C. The ~rop~ed use is in harmonv with t~ comprehensive plan of the Citv of Seward adopted by the Assembly. The comprehensive plan and land use plan adopted in 1985 designates the site for multi-family residential development (Martin l2/l0/88 memo at 7). Therefore, the proposed use is in harmony with the comprehensive plan of the City of Seward. D. Public services and facilities are adequate to serve the proposed use. All public utility services, such as water, sewer, power, and telephone, are already of adequate size to serve the proposed project. They are adjacent to and available for use by the project. In addition, Swetman Avenue, upon which the project fronts, is of sufficient width and has an adequate hard surface to meet the needs of the project. Police, fire and rescue Decision/Conditional Use Permit/Page 21 of 24 032790 . . . services are already in place and adequate to meet the needs of the project (Martin l2/l0/88 memo at 7). E. A more suitable location for the use is not readily available. There are few large parcels remaining in Seward that will accommodate apartment development. This area was zoned and subdivided with apartment development in mind. Short of development of additional acreage elsewhere in the City, there is not a more suitable site readily available (Martin 12/l0/88 memo at 7). The Commission specifically found, and we agree, that there is not a more suitable site available. F. Any and all specific conditions deemed necessary by the Advisory Plannina Commission to fulfill the above-mentioned conditions shall be met bv th~ applicant. The City staff recommended several conditions to be placed on a conditional use permit. However, because of the Commission's action in denying a conditional use permit, the question of which conditions might be placed on the permit were not addressed prior to the appeal to this Board. When this matter is remanded to the Commission, it should consider and impose such conditions upon the proposed project as it considers necessary for the project to meet the conditions of KPBC ~ 28.78.280.11/ We note that the conditions proposed in the 11/ Seward City Code ~ 15.10.325(D) Decision/Conditional Use Permit/Page 22 of 24 032790 . . . Martin 12/20/88 memo at 9 appear to be reasonably calculated to mitigate any negative impact this project may have on its neighbors. IV. Conclusion Based upon our thorough review of the record, and for the reasons stated above, we come to the following conclusions: l. The proposed use is consistent with the purpose of the zoning code. The contrary conclusion reached by the Commission was based on an improper interpretation and application of the "conserving and stabilizing the value of property" clause of KPBC ~ 21.78.020.12/ 2. The proposed use is consistent with the purposes of the R3 zoning district in which the property is located. 3. The value of the adjoining property will not be significantly impaired; the conclusion of the Commission to the contrary is not supported by any evidence in the record. 4. The proposed use is in harmony with the comprehensive plan of the City of Seward. 5. Public services and facilities are adequate to serve the proposed use. 6. A more suitable location for the project is not readily available. 12/ Seward City Code ~ 15.l0.115 Decision/Conditional Use Permit/Page 23 of 24 032790 . . . 7. Seward Associates is entitled to the issuance of a conditional use permit subject to any specific conditions deemed necessary by the Commission to fulfill the requirements of KPBC ~ 21.78.280.131 Therefore, we reverse the decision of the Commission and remand the matter to the Commission for the issuance of a conditional use permit to include the conditions set forth In the memorandum of Mr. Martin to the Commission dated December 10, 1988. The Commission may, in its discretion, further review the situation and provide for additional conditions not inconsistent with this decision. Adopted by the Board of Adjustment on March 27, 1990, pursuant to city of Seward Resolution 90-027. l~/ Seward City Code ~ 15.10.325(D) Decision/Conditional Use Permit/Page 24 of 24 032790