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HomeMy WebLinkAboutRes1989-043 . . . Sponsored by: Mavor & Council CITY OF SEWARD, ALASKA RESOLUTION NO. 89-043 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, RATIFYING THE DECISION OF THE CITY COUNCIL SITTING AS A BOARD OF ADJUSTMENT IN THE MATTER OF AN APPEAL AS FILED BY KEN STOUT WHEREAS, on April 5, 1989, the Seward Advisory Planning and Zoning Commission, following public hearing, voted to deny a conditional use permit as requested by Ken Stout, RTR Development; and WHEREAS, Mr. Stout subsequently appealed the Commission's decision to the Seward City Council; and WHEREAS, the City Council, sitting as a Board of Adjustment, conducted a public hearing on the appeal at its regular meeting of April 24, 1989; and WHEREAS, following the meeting, the Council met in Executive Session to deliberate and to instruct the attorney to prepare its findings relative to its decision on appeal; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section 1. The DECISION of the Seward City Council in the matter of the appeal of Planning Commission action as filed by Ken Stout, a copy of which is attached and incorporated herein by reference, is hereby RATIFIED. 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 8th day of May, 1989. THE CITY OF SEWARD, ALASKA ~L.~ Harr Gieseler Mayo AYES: NOES: ABSENT: ABSTAIN: DUNHAM, GIESELER, HILTON, MEEHAN & SIMUTIS NONE O'BRIEN NOLL . CITY OF SEWARD, ALASKA RESOLUTION NO. 89-043 ATTEST: APPROVED AS TO FORM: Perkins Coie, Attorneys for the city of Seward, Alaska . . (City Seal) 7,.d N~ Fred B. Arvidson City Attorney . . . rry~ SEWARD CITY COUNCIL ACTING AS BOARD OF ADJUSTMENT IN RE: An application for Conditional Use Permit As Filed by Seward Associates and RTR Development ) ) ) ) ) ) Lot 2. Jesse Lee Heights Subdivision Addition No.2 DECISION Introduction: This matter came before the Seward City Council acting as a Board of Adjustment on an appeal from a decision of the Seward Advisory Planning Commission rejecting an application for a conditional use permit. For the reasons set forth in this decision, and based upon the entire record, we AFFIRM the dacision of the Seward Advisory Planning and Zoning Commission. Backqround: In this case the Seward City Council is acting as a Board of Adjustment in accordance with the provisions of ~ 21.78.450 of the Seward Urban District Zoning Code. On March 6, 1989, 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 BOARD OF ADJUSTMENT Decision Stout/RTR Development CUP Page 1 . . . stration (FmHA) financed apartment project on Lot 2, Jesse Lee Heights Subdivision, Addition No.2. in Seward, Alaska. The application was signed by Marty Frantz. representing Seward Associates, and Kenneth Stout as landowner. In a cover letter to the City, Mr. Frantz indicated that this application for a conditional use permit was for the same project for which a conditional use permit had previously been granted on adjacent property owned by Frank Irick. Mr. Frantz stated in the letter that this application was being sought "in the event title problems are not resolved on Mr. Irick's land and is not applied for with the intent to build an addition [sic] 24 units of housing. " The application was accompanied by the required $200 fee. The application was not accompanied by the required plot plan. The City Administration indicated that it had waived inclusion of an as-built survey because the property is vacant. However. the Seward Urban District Zoning Code 3 21.78.290 requires a descrip- tion of the proposed use, including a dimensioned plot plan. A routine check on ownership of the property revealed that it is owned by RTR Development. a partnership including Ken Stout, Joe Hayes, Jack Bohlen, and Jean VanDohrman. On April 5, 1989. the Seward Advisory Planning and Zoning Commission ("the Commission") conducted a public hearing on the proposed conditional use permit. The applicants were not present. and no one appeared to testify either for or against the condi- BOARD OF ADJUSTMENT Decision Stout/RTR Development CUP Page 2 . . . tional use permit. The Commission had received a letter from the Seward Property Owners Association objecting to the issuance of the permit. Attached to the letter were copies of letters previously submitted to the Commission in opposition to the similar conditional use permit issued in March 1989 for the adjacent Frank Irick property. The letter and attachments were made a part of the official record. The Commission noted that the application was insufficient in two areas: (1) the application did not include the required plot plan, and (2) the application contained numerous references to a previous application (on the Frank Irick property) which had not been attached. The Commission further noted that it should not be respon- sible for researching previous applications for permits or to compile supporting evidence on behalf of the application. Further, the Commission noted no applicants were present to answer questions or address Commission concerns. A motion to grant the conditional use permit as requested failed with all Commissioners present voting "no." In its Findings of Fact and Conclusions of Law the Commission found: 1. The application for CUP, as submitted, was insufficient in that it was not accompan- ied by the required dimensioned plot plan. [See KPB Code ~ 21.78.290(c).] 2. The application for CUP contained no supporting evidence to justify the appli- cants' responses to the questions contained therein. BOARD OF ADJUSTMENT Decision Stout/RTR Development CUP Page 3 . . . The conclusion of the Board was as follows: "The application is hereby rejected for the insufficiencies noted above," Its written decision was dated CJPYI'J S- . . 1989. On April 10, 1989, Ken Stout, as partner in RTR Development, filed a letter with the city clerk in which he stated: "Request repeal of P&Z Commission's decision to deny building permit for RTR Farm Home Administration project." Although the letter requests repeal of the denial of a building permit, the Board of Adjustment accepts this letter as an appeal of the Commission's denial of the conditional use permit in question. Attached to the letter of appeal was another application for conditional use permit for the same property and the same project. This application was in the name of RTR Development Group (and not in the name of Seward Associates) and provided answers to those questions which, on the application under consideration in this appeal, were not answered but merely contained references to the conditional use permit application pertaining to the Frank Irick property, The Board of Adjustment notes that this latest application for conditional use permit has never been submitted to the city manager, accompanied by the application fee and other requirements of the Code. so the Commission has never had oppor- tunity to act on the latest application. BOARD OF ADJUSTMENT Decision Stout/RTR Development CUP Page 4 . . . Public Hearinq: After receipt of the letter appealing the Commission's decision, a public hearing was scheduled before the city council of the City of Seward acting as a Board of Adjustment. That public hearing was held on April 24, 1989. At the hearing. one of the owners spoke in favor of the conditional use permit application. We have carefully reviewed the March 3, 1989. application for conditional use permit which is the subject of this appeal. We have also carefully considered the testimony given at the public hearing before the Board of Adjustment. We agree with the Seward Advisory Planning and Zoning Commission that the application for conditional use permit was insufficient in that it was not accompanied by the dimensioned plot plan as required by Kenai Peninsula Borough Code S 21.78.290(c). We believe the purpose of the dimensioned plot plan is, at least in part, to enable the City to determine whether the proposed use will allow for adequate front and side yard set backs, not exceed maximum lot coverage. provide adequate open space, and other considerations relevant to establishing conditions for granting of the permit. Without a dimensioned plot plan showing the proposed layout of the proposed use. the Commission is unable to determine whether the proposed use will comply with the Code. We further find that the application fails to adequately describe the proposed use of the land as also required by Kenai BOARD OF ADJUSTMENT Decision Stout/RTR Development CUP Page 5 . . . peninsula Borough Code 5 21.78.290(c). Its response to questions (a) through (e) on the application for conditional use permit to "see application on previous site" is wholly inadequate. Like- wise, perfunctory yes or no answers to questions (a) through (e) do not provide sufficient information to the Commission to enable it to make a decision based upon substantial evidence. In fact, the Commission had no evidence before it upon which to base the granting of a conditional use permit since nothing was submitted in support of the application and no one gave any testimony at the public hearing. While there was some evidence in the form of letters submitted in opposition to the application, we feel the Commission was correct in not relying upon such evid- ence to deny the permit. We feel the Commission was correct in rejecting the application as insufficient and unsupported by substantial evidence. As noted previously, it is our view that this decision does not preclude the property owner from submitting a proper appli- cation for further consideration by the Seward Advisory Planning and Zoning Commission. Conclusion: The Seward Advisory Planning and Zoning Commission was correct in finding that the application for conditional use permit was insufficient and unsupported by substantial evidence. BOARD OF ADJUSTMENT Decision Stout/RTR Development CUP Page 6 . . . We hereby AFFIRM the decision of the Commission rejecting the application for those reasons. The Seward City Council acting as the Board of Adjustment hereby ratifies the foregoing Findings of Fact and Conclusions of Law and declares this document to be the decision of this body as determined at the meeting of April 24, 1989. DATED this 8t! day of May, 1989. Patrick O'Brien Beverly Dunham David L. Hilton. Sr. Michael J. Meehan William C. Noll Leslie Simutis ~. c!::. ~ <..',., ",,-4. Har . Gieseler ATTEST: APPROVED AS TO FORM: Perkins Coie Attorneys for City of Seward By: Linda S. Murphy City Clerk 7~fII~ Fred B. Arvidson City Attorney By: BOARD OF ADJUSTMENT Decision Stout/RTR Development CUP Page 7