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HomeMy WebLinkAboutRes1990-084 . . . Sponsored by: Schaefermeyer CITY OF SEWARD, ALASKA RESOLUTION NO. 90-084 AND A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, ADOPTING THE FINDINGS OF FACT CONCLUSIONS OF LAW REGARDING THE CARR-GOTTSTEIN APPEAL WHEREAS, on March 15, 1990, Carr-Gottstein filed a variance request to encroach into the side yard setback no the north side of Lot 6A, Block 3, Jesse Lee Heights Subdivision; and WHEREAS, on April 11, 1990, the Seward Planning and Zoning Commission, following a duly notice public hearing, denied the request for variance; and WHEREAS, on May 14, 1990, the City Council, sitting as a Board of Adjustment on an appeal duly filed by Carr-Gottstein, voted to remand the request for variance back to the Planning Commission; and WHEREAS, on Commission once variance; and June 6, 1990, again denied the Seward Planning and Zoning the Carr-Gottstein request for WHEREAS, on June 8, 1990, Carr-Gottstein once again appealed the Planning Commission's action; and WHEREAS, on July 6, 1990, the City Council, sitting as a Board of Adjustment, reversed the decision of the Planning Commission and voted to grant the variance requested by the appellant; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section 1. The Findings of Fact and Conclusions of Law regarding the City Council's decision on appeal, a copy of which is attached and incorporated herein by reference, are hereby 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, this 23rd day of July, 1990. THE CITY OF SEWARD, ALASKA U~- -1- . CITY OF SEWARD, ALASKA RESOLUTION NO. 90-084 AYES: NOES: ABSENT: ABSTAIN: ATTEST: NOLL, BURGESS, DUNHAM, HILTON, MEEHAN, SIEMINSKI, SIMUTIS NONE NONE NONE APPROVED AS TO FORM: Perkins Coie, Attorneys for the city of Seward, Alaska . . (City Seal) 7-.-.J 11/ ~ Fred B. Arv1dson City Attorney -2- . . . CITY OF SEWARD, ALASKA BOARD OF ADJUSTMENT IN RE: ) Application for Variance ) From Side Yard Set-Back As ) Filed by Carr-Gottstein, Inc. ) ) Lot GA, Block 3 Jesse Lee Heights Subdivision FINDINGS OF FACT AND CONCLUSIONS OF LAW Backqround: On March 15, 1990, Mr. Paul Carr, representing Carr- Gottstein, Inc, ("Carrs"), filed a variance request for the purpose of attaching a freezer van to the north side of the Eagle Quality Center grocery store located on Lot 6A, Block 3, Jesse Lee Heights Subdivision. Placement of the freezer van would encroach 10 feet into the 10-foot side-yard setback as required in the Auto Commercial (AC) zoning district.!1 The subject parcel is located in a "strip commercial" area fronted by the Seward Highway with other auto-commercial and industrial uses to the north, east and south. A single family residence (R1) zone is located to the west of the parcel, The March 15 variance application was preceded by an August 19, 1988, application of a similar nature to the rear-yard set back. In reviewing the application, the City administration initially supported the request but later withdrew its approval due to a potential conflict with an electrical easement, In an October 7, 1988, letter to Carrs, City administrative assistant Kerry Martin set forth the administration's objection to the rear-yard setback request but stated The City staff will continue to recommend in a positive manner with regard to a variance on the north side-yard settiack, The success of that construction lies with your coming to an amiable agreement with your neighbor [Frank and Barbara Dieckgraeff], The public hearing on the variance application as scheduled before the Planning and Zoning Commission was cancelled at the request of Carrs, pursuant to an October 19, 1988, letter stating other options were being investigated by the applicant. II Seward Zoning Code; codified at 3 15.10,220 of the Seward City Code, -1- ..-j . . . The March 15 variance application was filed pursuant to the provisions of 3 15.10.325 of the Seward City Code. Pursuant to the provisions of 3 15.01.040 of the Seward City Code, a public hearing before the Seward Planning and Zoning Commission was scheduled for April 11, 1990, Notice of the hearing was published in the local newspaper and mailed to real property owners within a 300-foot periphery of the subject parcel, April 11, 1990, P1anninq and Zoninq Commission Public Hearinq: At its regular meeting of April 11, 1990, the Seward Planning and Zoning Commission ("Commission") conducted a public hearing on Carrs' variance application. Written evidence presented included an April 3, 1990, memo from the City administration recommending denial of the variance based on the administration's analysis that the request did not fulfill all the conditions for issuance of a variance as required by Seward City Code 3 15.10.325. Specifically, the administration took the position that the applicant was not being denied reasonable use of the property and that the situation requiring the variance was created by an error in the applicant's initial building design and construction. No reference was made to various documents relating to the August 19, 1988, variance application which was rescinded by Carrs prior to public hearing. Dick Hodge, representing Carrs, presented oral testimony in support of the variance. Mr. Hodge spoke of the store's initial design and recent internal expansion which had taken place in response to the higher than anticipated volume and the public's demand for additional services, including a pharmacy, Mr, Hodge also discussed the Seward Zoning Code's parking requirements, a major factor in how the building was situated on the lot. Mr, Hodge testified that no objections to the variance had been voiced by property owners to the north of the subject parcel and Frank and Barbara Dieckgraeff, owners of the property directly adjacent to the lot line which was the subject of the variance, were not adverse to the encroachment, Community Development Director Kerry Martin confirmed that no objection or comment had been received from the public regarding the variance application. Commissioners discussed the City Code provisions and their role in complying with those provisions, Following the public hearing, the Commission voted unanimously to deny the variance request, Appeal - May 14, 1990, Board of Adiustment Public Hearinq: On April 12, 1990, and pursuant to the requirements of 3 15.10.410 of the Seward City Code, Carrs filed a timely appeal of the April 11 decision of the Seward Planning and Zoning Commission. The appeal hearing was scheduled before the City -2- . . . Council, sitting as a board of adjustment, for May 14, 1990, and noticed pursuant to 5 15,10.415 of the Seward City Code. Mr. Paul Carr appeared at the public hearing, distributed a packet of information to the Council containing the 1988 variance application and documents authored by the City administration related to the request. He stated that this evidence had been erroneously omitted from the information presented to the Planning and Zoning Commission and, thus, the action taken by the Commis- sion on April 11 was based on an incomplete record. Section 5 15.10,415 B. of the Seward City Code limits the board of adjustment's review to the record established before the Commis- sion and restricts it from considering new evidence. Since the 1988 variance application and related administrative documents were not considered by the Commission during the April 11 hearing, the board of adjustment had been presented information which it could not consider but which clearly indicated that the Commission's action was based on an incomplete record. Discussion ensued regarding potential fire hazards and the administration was directed to investigate the issue of ensuring adequate protection to neighboring buildings. Councilmemher David Hilton referenced the financial hardship clause of the variance provisions at 5 15.10,325 of the Seward City Code and stated that while financial hardship should not be the sole test for granting a variance, it should also not be the sole reason for denying it. Following conclusion of the public hearing, by an affirma- tive vote of 6-1, Councilmemher Dunham dissenting, the board remanded the request for a variance back to the Planning and Zoning Commission, with instructions that the Commission take particular note that adjoining property owners did not object to the variance and the variance would create only a minimal impact. June 6, 1990, Planning and Zoning Commission Public Hearinq: At its regular meeting of June 6, 1990, the Seward Planning and Zoning Commission held a second public hearing on Carrs variance request as remanded to the Commission by the City Council, sitting as a board of adjustment, The public hearing was noticed as required by 5 15.01,040 of the Seward City Code, having been published in the local newspaper and mailed to real property owners within a 300-foot periphery of the subject parcel, Mr. Paul Carr presented the Commission with documents associated with the 1988 variance application, Further, he introduced discussion of a 40-foot easement fronting the property which led to the placement of the structure at the rear of the lot in order to provide the required parking and to protect the main access corridor should rights to the easement ever be -3- . . . exercised. Mr. Carr testified that the easement was a special condition unique to the property and supported the need for the variance in order to fully utilize the property. Commissioner Fredrickson voiced his view that the easement constituted a special condition not caused by the owners and, thus, he supported granting of the variance. In response to concerns regarding potential fire hazards, Mr. Carr confirmed that the encroaching structure would be constructed with a one-hour fire wall and would meet all Uniform Building Code requirements. No objections to the variance request had been filed. Mr. Carr stated he had discussed the encroachment with the abutting property owners, Frank and Barbara Dieckgraeff, and they voiced no objection to issuance of the variance. Community Development Director Kerry Martin addressed the change in his position on the variance from a positive recommen- dation in his October 7, 1988, memo to a negative position in his April 3, 1990, memo. He stated that during the interim between the two documents the City had assumed zoning powers from the Kenai peninsula Borough, the City administration had become better versed in the zoning laws and were taking a stricter position in interpreting the provisions of the Seward Zoning Code, Following conclusion of the public hearing, the motion to grant the variance failed on a 2-3 vote, Commissioners Fredrickson and Lindsey voting "yes" and Kowalski, Parrish and Sutherland voting "no", Appeal - July 9, 1990, Board of Adiustment Public Hearinq: On June 8, 1990, and pursuant to the requirements of S 15.10.410 of the Seward City Code, Carrs filed a timely appeal of the June 6 decision of the Seward Planning and Zoning Commission. The appeal hearing was scheduled before the City Council, sitting as a board of adjustment, for July 9, 1990, and noticed pursuant to S15.10.415 of the Seward City Code, Mr, Paul Carr appeared to preseht oral testimony, verifying that the variance request denied by the Commission was the same request as submitted to and supported by the city administration in 1988, During the discussion that ensued, several councilmembers questioned the reasoning behind the 10-foot setback provisions in the Code for property zoned auto-commercial. This appears to have been the first time that a side setback variance has been requested in such an area and the city administration noted that -4- . . . the area has only recently begun to be developed. Perhaps because of historical reasons, the side setback provision was inserted when the Code was adopted. Several councilmembers suggested, and the administration concurred, that the entire issue of side setbacks in a strip commercial auto-commercial zone should be reviewed with a view toward a possible amendment to the Code given the location of the properties in this particular zone adjacent to the highway. The administration agreed that such a review would be appropriate. A number of questions were also asked of the city engineer including those previously raised at the Commission level relating to fire safety. The engineer indicated that the Uniform Building Code would apply in this construction context and had adequate provisions for the maintenance of fire safety even if the setback were to be occupied, Further, construction on the adjacent property would not be affected by the proposed variance. The Council again noted that no objections had been received to the variance request in writing or through testimony presented at any of the hearings, The intention of S 15.10,325 of the Seward City Code is to allow some flexibility when "the literal enforcement of this chapter would deprive a property owner of the reasonable use of his real property." In order to find that a variance is appropriate, all of the conditions set forth in S 15,10,325(d) must be met. We agree with the conclusions of the Planning and Zoning Commission that sections 1, 2, 5, 6, and 7 have all been met by the applicant, There is ample evidence in the record to support this conclusion. We differ, however, with the Planning and Zoning Commission's apparent interpretation of subsections 3 and 4 of that section, Subsection 3 provides that it is necessary to find that "the special conditions and circumstances have not been caused by actions of the applicant". In this case, it is possible that some other architectural structure could have been placed on the lot which would provide for the expansion needed by the grocery store due to the rapid growth of its business, There is, however, we think some room for latitude in interpreting this Code provi- sion. The overwhelming support for the variance request, although not itself a determining factor, certainly speaks to the question of whether the public interest is being harmed or promoted by the granting of this request. When the grocery store was originally constructed, there is ample evidence that the volume of business anticipated would reasonably be met by the construction contemplated. The volume -5- . . . of business has exceeded original expectations and the applicant is requesting an expansion in order to expand service to the community. We hardly see that providing additional services to the community is harmful to the public interest. With respect to the criteria set forth in subsection 4, that financial hardship or inconvenience shall not be a reason for granting a variance, we agree that the mere fact that the property would be worth more with the variance than without, should not control. However, we think the Planning and Zoning Commission may have taken too literal a reading of this provision. Although financial hardships should not be the only reason to grant a variance, a financial hardship should not be a reason to deny a variance either. We think the ordinance needs to be interpreted and applied in such a way as to take all of the factors into account, In this case, the building owner desires to expand a business that is serving the public without objection from any adjacent property owners. The record is fairly well established that the property owner may have miscalculated originally in sizing the building, but the location of the building (which gives rise to the need for the variance) was not an unreasonable location. In fact, given the 40 foot easement on the front of the property the location of the building may have been bene- ficial in that it provided additional parking above and beyond that required by the Code. Further, there is evidence in the record that the parking spaces themselves are wider than normal. We commend the developer for making efforts to provide additional parking space and its recognition that, certainly in the summer time in Seward, there is substantial traffic congestion in and around the small boat harbor area. Efforts by businesses to alleviate parking congestion are appreciated by the entire community, Thus, we think the location of the building perhaps was not the best choice. It was, however, a reasonable one, and the need to expand it is more the result of the general expansion of the Seward economy than any demonstrable error or miscalculation by the property owner, Further, there are no objections by adjacent property owners, ' We think the public interest would be served by granting the variance, The community will have a larger business operating with more space and f-acilities in a time of rapid economic expansion. We think it would be appropriate and have instructed the city administration to review the setback requirements in this particular zone to see if they make sense and should be continued for other properties as well. We, therefore, grant the variance and instruct the City to issue it, -6- . . . ACCEPTED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, this day of July, 1990. THE CITY OF SEWARD, ALASKA ~0iA lAM C. :LL, MAYOR AYES: NOES: ABSENT: ABSTAIN: ATTEST: APPROVED AS TO FORM: PERKINS COlE, Attorneys for the City of Seward, Alaska ~N~ Fre B. Arvidson City Attorney , . . A ~ ~~ \. \, ,~:~:.: :~ ,... ),/ :\u.,,'~I\',f." 1.1,:,'~~."'.\f '<;r('C1F~"~.\..t-", ,'v .~.r-'" " ..;rr.,,-- 1.- -7-