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06122007 Planning & Zoning Packet
Seward Planning do Zoning Commission Administrative Decision Prohibiting a Canopy within the Setback Appeal Hearing June 12, 2UU7 &Mp.m. :ry counclz ers Marianna Kell Chair Term Expires 02110 Tom Smith Vice -Chair Term Expires 02110 Margaret Anderson Commissioner Term Expires 02109 Kevin Clark Commissioner Term Expires 02109 Lynn Rohl Commissioner Term Expires 02108 Sandie Roach' Commissioner Term Expires 02110 Bob Hicks Commissioner Term Expires 02108 Phillip Oates City Manager Kirsten Vesel Assistant City Manager Jean Lewis City Clerk Vacant Executive Liaison 1. Call to Order 2. Opening Ceremony A. Pledge of Allegiance 3. Roll Call 4. Procedures Outlined A. Establish time limits for each side. 5. Appeal Hearing 6. Executive Session 7. Return to Open Session A. Motion and public vote of findings OR B. Motion to postpone to subsequent date 8. Adjournment Administrative Decision Prohibiting a Canopy within the Setback Appeal Hearing Agenda June 12, 2007 Administrative Decision Prohibiting a Canopy within the Setback Appeal Hearing Table of Contents ON Administration Repo___rt Staff Review and Recommendation .................................................... Page 4 Exhibit A. Building Permit Application 2000-43 and review backup 8115 - 16/2000....................................................... Page 12 Exhibit B. 8/18/2000 Linda -Rae Olsen letter to Pruitt ........... Page 20 Exhibit C. Building Permit 2000-43....................................... Page 21 Exhibit D. 8/23/2000 Note to file of Pruitt verbal response ... Page 22 Exhibit E. 8/23/2000 Fax cover sheet — Variance Code SCC § 15.10.325 Provided to Pruitt .................................. Page 23 Exhibit F. 8/24/2000 Fax memo to Pruitt...............................Page 26 Exhibit G. 3/6/2001 P&Z Information Agenda Statement Page 27 Exhibit H. 3/6/2001 James Letter to Pruitt..............................Page 28 Exhibit I. 3/15/2001Variance Application, 4/3/2001 P&Z Agenda Statement, Resolution 2001-05 & Minutes ........... Page 29 Exhibit J 4/30/2001 Letter to Pruitt denying the Variance ... Page 42 Exhibit K 10/24/2001 Calvert Letter to Pruitt ....................... Page 43 Exhibit L 10/30/2001 Pruitt response letter ........................... Page 45 Exhibit M Building Permit Application 2002-09 and review backup 3/13/2002............................................................... Page 48 Exhibit N 4/10/2002 Calvert letter and staff: memo to Pruitt. Page 53 Exhibit O 8/22/2002 Brown email to Pruitt ........................... Page 56 Exhibit P 11/6/2002 P&Z Agenda Statement, Resolution 2002-24, Draft City Council Ordinance, P&Z minutes ........ Page 57 Exhibit Q 5/l/2003 Calvert Letter of Certificate of Occupancy regarding Building Permit 2000-43 ....................... Page 67 'k Wall map provided for visual display, too large for packet; available for view at Community Development office Administrative Decision Prohibiting a Canopy within the Setback Appeal Hearing Table of Contents June 1 Z, 2007 page I Exhibit R 2/3/2004 P&Z Agenda Statement, Resolution 2004-06, P&Z Minutes......................................................... Page 72 Exhibit S 7/26/2004 City Council Agenda Statement, Failed Ordinance 2004-01, City Council Minutes ........... Page 84 Stan Supporting Documents Exhibit T. Photos of the Canopy Attached to Building .......... page 94 Exhibit U. Property Location Map..........................................Page 98 Exhibit V. Portion of the Current Zoning Map ....................... Page 99 Exhibit W. Portions of Seward City Code Title 15 .............. Page 100 Exhibit X. Architectural Glossary .........................................Page 106 Exhibit Y. Statutory Interpretation ........................................ Page 114 Exhibit AA. City of Seward Official Zoning Map (Wall Mount) ....... * Angelllant.Report Appellant Application of Appeal Received April 26, 2007...........Page 120 Appellant Statement Received May 22, 2007................................. Page 122 Appellant Supporting Documents Exhibit 1. Supreme Court S-11628, Opinion No. 6096 dated January 26, 2007 (Exhibit A) .............................. Page 132 Exhibit 2. Order After Remand, (Exhibit B)........................Page 160 Exhibit 3. Linda Rae Olsen Letter (Exhibit C) ....................Page 162 * Wall map provided for visual display, too large for packet, available far view at Community Development Office Administrative Decision Prohibiting a Canopy within the Setback Appeal Hearing Table of Contents June 12, 2007 Page 2 Notification Documents Notice of Appeal Hearing date to appellant ....................................... Page 163 Notice of Decision on Appellants Request for a June Hearing.......... Page 164 Public Posting Notice of Appeal Hearing .......................................... Page 165 Public Notice of Appeal Hearing....................................................... Page 166 Affidavitof Mailing............................................................................ Page 167 Affidavit of Public Posting of Property .............................................. Page 168 * Wa[1 map provido for visual display, too large for padw available for view at 2222 nity Development office Adnnin4trqoe Pfp{gign Prohibignjr q (7anopy within the Setback Appeal Hearing Table of Contents June 12, 2007 Page 3 Administrative Appeal Meeting Date: June 12, 2007 Through: Phillip Oates, City Manager From: Kirsten Vesel, Assistant City Manager Agenda Item: Appeal of the administrative decision to deny a canopy within the setback on the front of a building located on Lot 1, Block 3, Leirer Industrial Subdivision. ISSUE ON APPEAL: The Seward Planning and Zoning Commission is being asked whether the administration's interpretation of the definition of a setback in Seward City Code§ 15.10.140 is correct. Is a canopy an attachment to a building that is probibited in a setback? BACKGROUND: In August 2000, the Community Development office reviewed Jim Pruitt's, Seward Ship Chandlery building plans to erect a combination store, warehouse, office building on Lot 1, Block 3, Leirer Industrial Subdivision Preliminary Plat. At that time, Mr. Pruitt was made aware of the fact that the proposed canopy on the west side of the new building appeared to be located in the setback and would be a violation of the Seward Zoning Code. The building permit specifically stated that "the canopy was not part of this permit & has not been approved" (as attached as exhibit C, page 21). On August 18, 2000, Linda -Rae Olsen, then Planning Clerk, mailed a letter to Mr. Pruitt stating, "...However, it still appears on the building plans that the roof eve's (sic), the facia panel and the canopy over the store entrance will extend into the setback. According to the Seward City Code§15.10.140 which pertains to setbacks, it states that any structure including, but not limited to decks, stairways, porches or other attachments to a building are specifically prohibited in the setback. Building eve's (sic) are permitted to extend into the setback a maximum of two feet..." (as attached in letter dated August 18; 2000 as exhibit B, page 20). On August 23, 2000, Linda -Rae Olsen, faxed to Mr. Pruitt the SCC§l5.10.325 Variance section of the Planning and Land Use Regulations and welcomed Mr. Pruitt to apply for a variance for the canopy but stated that, "there was a strong possibility that the administrations recommendations would be against it" (as attached in the fax dated August 23, 2000 as exhibit E, page 23.). On August 24, 2000, Linda -Rae Olsen, then Planning Clerk, faxed the SCC§15.10.220 table, the building permit application review transmittal, the city of Seward building permit application, the letter dated August 18, 2000, notes dated August 23, 2000 and a Page 4 A canopy within the setback on the front of a building Iocated on Lot 1, Block 3, Leirer Industrial Subdivision Appeal Hearing Appeal Date: June 12, 2007 Page 5 of 8 few site maps for Lot 1, Block 3 Leirer Industrial Subdivision (as attached in the fax dated August 24, 2000 as exhibit F, page 26.). At that time, Mr. Pruitt agreed not to include the canopy on the new building and to pursue a zoning variance if he decided it was needed. Once the building was constructed, it became apparent the canopy had been erected on the new building and appeared to be within the 20 foot, front setback and thus in violation of the City Code (SCC§15.10.140). A violation notice was sent to Mr. Pruitt on March 6, 2001 (as attached in exhibit H, page 28) and the Planning and Zoning Commission was made aware of the situation at the March 2001 meeting (as attached in the Planning and Zoning (P&Z) Agenda Statement dated March 6, 2001 as exhibit G, page 27). In response, Mr. Pruitt submitted a variance application to allow the doorway overhang (canopy) to extend into the 20 foot, front -yard setback. At the April 3, 2001 Planning and Zoning meeting, the Commission approved Resolution 2001-05 which denied the variance request to allow a doorway overhang (canopy) within the 20 foot, front -yard setback on Lot 1, Block 3, Leirer Industrial Subdivision, preliminary plat (as attached in the P&Z resolution 2001-05 dated April 3, 2001 including agenda statement and minutes as exhibit I, page 29.). A letter dated April 30, 2001, was sent to Mr. Pruitt from Rachel James, then the city planner, notifying Mr. Pruitt of this decision and informing him that the overhang (canopy) had to be removed The letter requested an as -built survey to verify that the canopy was not located within the setback (as attached in letter dated April 30, 2001 as exhibit J, page 42.). The letter also notified Mr. Pruitt that, "a certificate of occupancy will not be issued for the building until the doorway overhang (canopy) is removed" (as attached in the letter dated April 30, 2001 as exhibit J, page 42.). On October 24, 2001, a letter was sent to Mr. Pruitt from Dave Calvert, then the manager of engineering and utilities, providing Mr. Pruitt with the requirements for occupancy and use of the building (as attached in letter dated October 24, 2001 as exhibit K. page 43.). On October 30, 2001, a letter was sent from Mr. Pruitt to Dave Calvert stating that "the canopy is not an issue and has the required setback (20 foot). The Site plan turned into the City for the building permit was not correct" (as attached in letter dated October 30, 2001 exhibit L. page. 45). A hand written, signed note was added at the bottom of this letter from Rachel James stating that "Mr. Pruitt has not provided as -built survey to verify that the 20' setback has been met as required by April 30, 2001 letter" (as attached in hand written note on the letter dated October 30, 2001 exhibit L. page 45). On April 10, 2002, a memorandum was drafted by Rachel James to Dave Calvert and Gerry Welsh stating that, "due to an outstanding zoning violation regarding the existing building on this property, Community Development cannot recommend approval of the requested building permit. An April 30, 2001 a letter from this office to James Pruitt Page 5 A canopy within the setback on the front of a building located on Lot 1, Block 3, Leirer Industrial Subdivision Appeal Hearing Appeal Date: June I2, 2007 Page 6 of 8 requested that he provide an as -built survey to verify that the canopy (doorway overhang) is not located in the required 20 foot, front setback. To date Mr. Pruitt has not provided that survey" (as attached in the memorandum dated April 10, 2002 exhibit N, page 54). On April 10, 2002, a letter was drafted from Dave Calvert stating that a Certificate of Occupancy would not be issued until a few outstanding issues were resolved. The setback violation of the canopy, over the front door, was one of the outstanding, unresolved issues referenced in this letter (as attached in the letter dated April 10, 2002 exhibit N, page 53). On August 20, 2002, .an e-mail was drafted to Jim Pruitt from Malcolm Brown, city planner, stating that the city was still unable to take any further action for the building permits for Ace Hardware due to the issue of the canopy and the setback encroachments. The e-mail also stated that a current as -built had not been submitted (as attached in the e- mail dated August 20, 2002 exhibit O, page 56). Following numerous verbal communications through the summer of 2002, Scott Janke, then city manager, requested the Planning and Zoning Commission review and amend the setback requirements within the Industrial Zoning District. The Commission held work sessions and a public hearing to recommend an amendment to the setback requirements within the Industrial Zoning District. On November 6, 2002, the Planning and Zoning Commission was introduced with an amendment of zoning ordinance, Table§ 15.10.220, developing requirements, to allow canopies, awnings and marquees to extend four feet within the setback in the industrial zoning district in resolution 2002-24. The motion failed with a 5 to 1 vote. (as attached in the P&Z resolution 2002-24 dated November 6, 2002 including agenda statement and minutes exhibit P, page 57). On May 1, 2003, a letter was sent from Dave Calvert to Mr. Pruitt summarizing past actions and providing Mr. Pruitt with the requirements for occupancy for the Ace Hardware building. This letter noticed Mr. Pruitt of a potential penalty of up to $1000/day for continued violations of the zoning code. The letter stated that the item which needs to be corrected prior to the occupancy or use of the building was the removal or modification of the canopy which extends into the 20 foot setback, as required by Planning & Zoning Commission (SCUTable 15.10.220). It was noted on the building permit that "The Canopy is not part of this permit & has not been approved". This letter also states that W. Pruitt was notified during the construction of the building that the canopy was in violation and needed to be corrected. The letter stated that "Twenty- nine months have passed without any action on your part" and a Certificate of Occupancy would not be issued until this zoning violation was corrected (as attached in the letter dated May 1, 2003 exhibit Q, page 67). Page 6 A canopy within the setback on the front of a building located on Lot 1, Block 3, Leirer Industrial Subdivision Appeal Hearing Appeal Date: June 12, 2007 Page 7 of 8 On February 3, 2004, the Planning and Zoning Commission was, again, introduced with an amendment of zoning ordinance, Seward City Code Table SCC§15.10.220, which reviewed the setback requirements within the Industrial Zoning District. The Commission approved Resolution 2004-06 recommending Council decrease the setback requirements from 20' down to 10' within the Industrial Zoning District. The motion passed with a 6 to 1 vote (as attached in the P&Z resolution 2004-06 dated February 3, 2004 including agenda statement and minutes exhibit R, page 72). On July 26, 2004, the City Council was introduced to Ordinance 2004-01 amending the Seward City Code Table§15.10.220 development requirements to decrease the setbacks in the industrial zoning district as recommended by the Planning and Zoning Commission on February 3, 2004. The ordinance amendment failed with a 4 to 3 vote (as attached in the City Council Ordinance 2004-01 dated February 3, 2004 including agenda statement and minutes exhibit S, page 84). On April 26, 2007, the City received an application for appeal from lvtr. Pruitt's attorney Ronald Baird to the Seward Planning and Zoning Commission from the decision of the city clerk, Linda -Rae Olsea, concerning a canopy on a building Lot 1, Block 3, Leirer Industrial Subdivision. (as attached page 120) On May 22, 2007, the City received the Written Statement of Appellant which includes a photograph of the front of Ace Hardware, a sketch (not to scale) and a letter to Cheryl Brooking, city attorney, requesting the City arrange for legal counsel other than Cheryl Brooking's firm and to advise the Commission, and if necessary the Board of Adjustment, concerning this appeal (as attached in the Written Statement of James T. Pruitt dated May 18, 2007, page 122). The City is honoring Mr. Pruitt's request to not have legal counsel available for this administrative appeal. Administration does not feel that an attorney is warranted at this Administrative hearing. SUMMARY: On January 26, 2007, the Supreme Court of the State of Alaska determined that, for reasons stated in the attached, Supreme Court of the State of Alaska, Supreme Court No. S-11628 and Superior Court No. 3AN-03-13457C1V, the Superior Court's judgment is VACATED. The Supreme Court stated "REMAND with instructions that the city's enforcement action be held in abeyance until Pruitt has the opportunity to appeal the city's interpretation of SCC815.10.140. We therefore also VACATE the city's prevailing party award of attorney's fees" (as attached in the January 26, 2007 Supreme Court of the State of Alaska, Supreme Court No. S-11628 and Superior Court No. 3AN-03-13457C1V and Superior Court for the State of Alaska Third Judicial District, Case No. 3AN-03- 13457 CIV exhibit 1, page. 132; specifically page 153). The letter dated August 18, 2000 from Linda -Rae Olsen to Mr. Pruitt is the letter the Supreme Court is referring to as the city's interpretation of SCC815.10.140. Due to the fact that this letter did not specify the appeal process for Mr. Pruitt, the Supreme Court Page 7 A canopy within the setback on the front of a building located on Lot 1, Block 3, Leirer Industrial Subdivision Appeal Hearing Appeal Date: June 121, 2007 Page 8 of 8 has instructed the city's enforcement action be held in abeyance until Mr. Pruitt has had the opportunity to appeal the city's interpretation of setbacks in SCC§15.10.140. The letter dated August 18, 2000 from Linda- Rae Olsen to Mr. Pruitt states that, "Before this office can approve the site plan we will need verification on the plans that: 1. The building eve's (sic) do not extend into the 20 foot front yard setba* 2. the store front canopy does not extend into the 20 foot front yard setback and; . 3. the facia panel does not extend into the 20 foot font yard or 10 foot side yard setbacks." (as attached in the August 18, 2000 letter from Linda -Rae Olsen to Mr. Pruitt exhibit 3, page.162). On January, 26, 2007, The Supreme Court of the State of Alaska's Opinion No. 6096 (as attached exhibit 1, page. 132) The Superior Court used its independent judgment to interpret the city's zoning codes and held that Pruitt was in violation of the zoning codes and ordered him to remove the canopy. Later, the Supreme Court determined that, because the city did not provide Mr. Pruitt with notice that its interpretation of the city zoning code was a final action, the exhaustion doctrine did not foreclose Pruitt from defending the city's enforcement action. The Supreme Court also found that, because the city effectively denied Pruitt an opportunity to appeal its zoning decision, they determined that the Superior Court should have given Mr. Pruitt an opportunity to submit the issue of the code's meaning to the city's Planning and Zoning Commission. Therefore, the Supreme Court remanded, with instructions, to hold the enforcement action in abeyance so Mr. Pruitt could appeal the city's interpreation of the zoning code. (as attached in Order of Remand, Exhibit 2, Page 160). On April 26, 2007, Mr. Pruitt's attorney Ronald L. Baird filed an application for appeal (as attached page 120) pursuant to the decision of the Alaska Supreme Court in Pruitt v. City of Seward, Opinion No. 6096 (as attached in exhibit l . page 132). DISCUSSION: The intent of this appeal is to allow Mr. Pruitt to present the letter from Linda -Rae Olsen dated August 18, 2000 and determine whether staffs code interpretation of setback is supported through findings from this appeal to the Seward Planning and Zoning Commission. The Administrative appeal to the Seward Planning and Zoning Commission's written statement of appellant from James T. Pruitt, dated May 18, 2007, refarences the definition of setback as follows: SCC§ 15.10.140: defines "setback" as follows: Setback The required minimum distance from right-of-way or lot line that establishes the area within which only fencing, landscaping, driveways, parking and similar uses are permitted. Any stru including, but not limited to decks, stairways, poaches or other attachments to_a building are snecifreally Page 8 A canopy within the setback on the front of a building located on Lot 1, Block 3, Leirer Industrial Subdivision Appeal Hearing Appeal Date: June 12, 2007 Page 9 of 8 prohibited in the setback Building eaves are permitted to extend into the setback a maximum of two feet. Mr. Pruitt's attorney, Ronald Baird, states that "this interpretation overlooks another relevant definition, that of "structure", providing SCC§15.10.140 and fails to apply the legal principle of statutory interpretation known as ejusdem generis. SCC§15.10.140 defines "structure" as follows: Structure. Anything constructed or erected on the ground or attached to something having located on the ground, including_ but not limited to, bui,_ldiM towers, and sheds. Fences, restraining walls less than three feet in height, and similar improvements of a minor character are excluded". (as attached in Appellant's Statement page 123 ) Ronald Baird's definition of "structure" was not overlooked by Linda -Rae Olsen's letter stating staff s interpretation of a "setback". Although not explicitly stated in Linda -Rae Olsen's letter, the definition of structure was considered in staffs interpretation. The definition of "structure" would include the canopy. The " canopy is "attached to something", the building, and the building was constructed or erected "on the ground, including, but not limited to, buildings,..." (SCC§15.10.140 definition of structure exhibit W, page. 104). Please refer to the photographs, as attached, to determine if the canopy is attached to the building and if the building is located on the ground. (as attached in exhibit T, pages 94- 97) Linda -Rae Olsen letter, prior administration, planners, and city engineers interpreted the canopy to be "specifically prohibited" according to Seward City Code§15.10.140 definition of "setback", for the following reasons: 1. The canopy is attached to the building as defined is SCC§ 15.10.140 definition of setback; and 2. The canopy is not an eave as permitted in SCC§15.10.140 definition of setback (please reference definitions of an eave and canopy as attached exhibit X, pages 106-113). Please refer to the photographs, as attached, to determine if the canopy is attached to the building and/or could be interpreted as an eave. (as attached in exhibit T, pages 94-97) Staff agrees that the issue of the canopy has been a costly administrative burden on both the City of Seward's staff and Mr. Pruitt. It is unfortunate that this issue was not resolved years ago. However, it remains the staffs responsibility to interpret and enforce the code as is. Furthermore, staff agrees with Linda -Rae Olsen's and staffs prior interpretation of "setback" as defined in her letter dated August 18, 2000. Page 9 A canopy within the setback on the front of a building located on Lot 1, Block 3, Leirer Industrial Subdivision Appeal Hearing Appeal Date: June 12, 2007 Page 10 of 8 15.10.135. Conflicts between caries: Whenever there is a conflict within this chapter or with other ordinances pertaining to regulation of property within the city, the most restrictive regulation shall apply. (Ord. 626, § 3,1989; Ord. 94-10; Ord: 99-16, § 3,1999) Defin_ ons: The following definitions for terns related to the staff determination are found in SCC§15.10.140. Setback The required minimum distance from right-of-way or lot line that establishes the area within which only fencing, landscaping, driveways, parking and similar uses are permitted. Any structure including, but not limited to, decks, stairways, porches or other attachments to a building are specifically prohibited in the setback. Building eaves are permitted to extend into the setback a maximum of two feet. Structure. Anything constructed or erected on the ground or attached to something having location on the ground, including, but not limited to, buildings, towers, and sheds. Fences, retraining walls less than three feet in height signs and similar improvements of a minor character are excluded. Canopy. Several definitions are provided as attached (as attached in exhibit X, pages 106-113) Eave. Several definitions are provided as attached. (as attached in exhibit X, pages 106- 113) Ejusdem generis. A definition is provided as attached. Where general words follow an enumeration of specific items, the general words are read as applying to other items akin to those specifically enumerated". (Wikipedia Encyclopedia. hM./ en wiki uLorgLv ,'/StatutaoIy interprgtaiion. page 3 of 5. (as attached in exhibit X, page 116) 15.10.220. Development requirements. (a) Table SCC§15.10.220, development requirements, is incorporated herein by reference and the restrictions contained therein are mandatory unless otherwise modified by this chapter. (See attached Table, page 11) (c) Setbacks -Yards (1) Setbacks are required to insure sufficient open area for snow accumulation, sunlight, views, privacy, fire separation and visual relief between structures. Page 10 A canopy within the setback on the front of a building located on Lot 1, Block 3, Leirer Industrial Subdivision Appeal Hearing Appeal Date: June 12, 2007 Page 11 of 8 Tabla 15.10.220 Dew-kwmnat ReQuir+ements RR Rl R2 R3 UR OR AC HC CB I RM INS P Minimum Front 20 20 20 20 20 20 10 None None 20 20 20 20 Yard Setback (ft.) (See Note 7, next page) Minimum Side 10 5 or 5 5 or 5 10 5 5 5 5 None 10 10 10 20 Yard Setback (ft.) (See Notes 4 and min. min. with 7, next page) 15 5 15 total• total' Minimum Side 10 I0 10 10 10 10 10 None None 20 10 10 20 Yard Setback Adjacent to Street (ft.) (See Note 7, � 1�) Minimum Rear 10 10 10 10 10 10 10 None, None 10 10 15 20 Yard Setback (ft.) 5 and (See Notes 5 and 100 7, next page) RECOMMENDA Stan recommends that the Seward Planning and Zoning Commission uphold the administration's interpretation of the definition of setback in Seward City Code915.10.140 and finds that a canopy is an attachment to a building that is prohibited in a setback. Page 11 ZONING - SITE PLAN REVIEW (SCC 3 15.10.2201 Property Owner: Steve Leirer Builder: James Pruitt, Seward Ships Chandlery Property Address: 1714 Leiter Rd. Legal Description: Lot 1, Block 3, Leiter Industrial Preliminary Plat JY C " OLp Proposed Use: Store, warehouse, office Exisiting Structures: 2 story metal frame bldg. and metal shed Zoning District: Industrial Use Allowed: Yes/No/CUP Review Requirements. Code Standards Project Proposal Bldg Ht (FT) 34 18 Min buildable lot size (SF) 10,000 75,684 Lot width (FT) 100 west - 105 east - 235 Front Yard Setback (FT) 20 20 Side Yard Setback (FT) 10 west 14 south 10 Side Yard Setback Adjacent Street (FT) 20 NA Rear Yard Setback (no rear for corner lot) (FT) 10 greater than 10 Special Setback when abutting a residential district 15.10.220 10 NA Eaves 2' max in setbacks toll Max Accessory Bldg Ht (FT) 34 Max % lot coverage 100 exclds stbcks . less than 100% Flood zone and 17' above MLLW SCC 12.01.015 and KPB Code 21.06 C Building crossing platted lot lines (Commercial) SCC 12.01.030 No Utility easements (check deed records and plats) west 10;south 10 30' drainage ease. in NE Quadrant Parking Site Plan Reviewed by Community Development, Review attached 9 rsq'd. - providing for approx. 23 Comments: Our office will need to see verification on the building plans that; 1). The building eve's do not extend over two feet into the 20 foot front yard setback; AfA�Li�toc+c.frsett; anti;). The facia panel does not extend into the 20 foot front yard or 10 ro foot side yard setbacks._ Date Received: 8116/00 Sent to Bidg. Dept: Address Letter Date: NA Site Wan: Approved/Denied Community Development: C:WyFiles\SITRVIEW\LEIRER\Blk 3\Lot 1. Block 3 Prufa.wpd Juno 9, 2000 2 -ZAppL'cant's Name Number: Lwlilq e ROUTED DATE: RECEIVED DATE: Ub APPROVED DATE: - C� TO: [) Fire Department otnmunity Development . '.. V'Yt' ` " [ ] Public Works [ j Building Division/Official [ ] Other (sent to: FvIL CL?::�— Pw B6 Other ) too*** RETURNED RETURNED TO BURZING DEPARTMENT: Date and Depwi meat tsssssssssssssssssssssssassMssssssssssssasss*•sssssssssssssassss•sssssssssssssssss Attached are plans for the above application. 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Pruitt: This office has reviewed your plans for a new building on Lot 1, Block 3, Leirer Industrial. Subd. It appears on the building plans that the front of the new structure will be built right on the 20 foot setback line, which is fine. However, it also appears on the building plans that the roof eve, the facia panel and the canopy over the store entrance will. extend into the setback. According to the City Code § 15.10.140 which pertains to setbacks, it states that arW structure including, but not limited to, decks, stairways, porches or other attachments to a building are specifically prohibited in the setback Building eve's are permitted to extend into the setback a maximum of two feet. Before this office can approve the site plan we will need verification on the plans that: 1. The building eye's do not extend over two feet into the 20 foot front yard setback: facia pane7aces not extend into the 20 foot front yard or 10 foot side yard setbacks. If you have any questions concerning this, please call 224-4048 or email lolsenfteward.net Sincerely, .% The Cily of Sewar Linda -1 5 Rae Olsen City Clerk cc Dave Calvert 4 Notes August 23, 2000 Answers provided by Jun Pruitt pertaining to questions regarding'his new building plans on Lot 1, Block 3, Leirer Industrial Subd., building permit no. 2000-43. (See letter dated 8/18/00) Q uestion: The building eve's do not extend over two feet into the 20 foot front yard setback.. Answer: The eve's will overhang 10 inches into the setback 2. Question: The store front canopy does not extend into the 20 foot front yard setback. fF y 3. Questions: The vacia panel does not extend into the 20 foot front yard setback or the ten foot side yard setback. Answer: The facia is part of the eve's and will not extend more than 10 inches into the setback CITY OF SEWARD COMMUNITY DEVELOPMENT P.O. Boa 167 Seward, AK 99664 Phone (907) 224-4048 Fax (907) 224-4085 DATE: 8123100 FAX TO: Jim Pruitt COMPANY: Seward Ships Chandlery FAX NUMBER: (9070 224-5496 PHONE NO. TOTAL PAGES: 3 FROM: Linda Rae Olsen, Planning Clerk 907.224.4048 (phone) 907.224.4085 (fax) lol ca&eword net (e-mail) COMMENTS: Hi Jim: , The following is information on variances from the City Zoning Code. As you can see the canopy situation may not fall under this. You are welcome to apply for a variance, however there is a strong possibility that the administrations recommenda- tion would be against it. You should have a variance application in your office that we gave you for your last project, ifnot let me know and I will get one to you. Thank you, Linda -Rae Olsen * IF THERE ARE ANY PROBLEMS WITH THIS TRANSMISSION, PLEASE CALL (907) 224-4048. pLAI=nIG AND TAND USX RIGM ATIONS 5 15.10.325 E. Avyroval resolution. At any time after the hearing required in J 15.10.320 C., the commission may adopt a resolution approving a conditional use permit provided that it includes findings of fact that the review criteria in 1 15.10.320 D. have been met. Upon adoption, the city shall cause a copy of the resolution to be posted for at least ten days in at least three public places within the city. An appeal of the commission's action may be made at any time until the resolution becomes effective. Unless rescinded, amended or appealed any resolution adopted under this chapter automatically becomes effective ten days after passage and posting. F. Modification of final approval. 1. an approved conditional use permit may, upon application by the permittee, be modified by the planning and zoning commission: a. when changed conditions cause the conditional use to no longer conform to the standards for its approval. b. to implement a different development plan conforming to the standards for its approval. 2. the modification application shall be subject to a public hearing and a filing fee set by city council resolution. G. Eamon - Extensions - Transferability. 1. an approved conditional use permit lapses six months after approval if no building permit is procured or if the allowed use is not initiated. 2. the commission may grant time extensions not to exceed six months each upon a finding that circumstances have not changed sufficiently to warrant reconsideration of the approval of the conditional use permit. A request for an extension must be submitted prior to the expiration of the permit. A public hearing shall not be required prior to granting an extension of time. 3. a conditional use permit shall automatically expire if for any reason the condi- tioned use ceases for a period of one year or Ionger. 4. a conditional use permit is not transferrable from one parcel of land to another. Conditional use permits may be transferred from one owner to another for the same use, but if theca is a change in use on the property, a new permit must be obtained. (Ord. 626, § 3, 1989: Ord. 649, J 5, 1991; Ord. 94-56; Ord. 97-15; Ord. 984)6) ly , 15.10.325 Variances. A. Intent. When the literal enforcement of this chapter would deprive a property owner of the reasonable use of his real property. a variance would allow for the relaxation of the development requirements of this chapter to provide relief. B. Amplication. Application for a variance shall be filed with the city clerk. The application shall include, but is not limited to the following: 1. all of the information required for a conditional use permit; 2. a precise description of the variance requested, including the section, paragraph and sentence of this chapter from which the applicant wishes to deviate; Supplement No. 98-1 City of Seward 111+98 15 - 35 0)c) 5 15.10.325 PLANTING; AND LAND USE REGULATIONS 3. a written item by -item response to all of the conditions specified in this section; and, 4. the appropriate fee as established by city council resolution. C. Public headug If the application is in order, a public hearing shall be scheduled in accordance with the requirements of § 15.01.040 of this title. D. Review criteria The commission shall establish a finding that all of the following conditions have been found to exist as a prerequisite to issuance of a variance permit: 1. the proposed action must be consistent with all of the general conditions required for a conditional use permit; . 2. special conditions and circumstances exist which are peculiar to the land or structures involved and which are not applicable to other lands and structures in the same district; 3. the special conditions and circumstances have not been caused by actions of the applicant; 4. financial hardship or inconvenience shall not be a reason for granting a variance; 5. other nonconforming land use or structures within the district shall not be consid- ered grounds for granting a variance; 6. a variance shall be the minimum variance necessary to permit the reasonable use of the land or structure; and, 7. a variance shall not be granted which will permit a land use in a district in which that use is otherwise prohibited. E. Alpvroval resolution. At any time after the hearing required in § 15.10.325 C., the commission may adopt a resolution approving a variance provided that it includes findings of fact that the review criteria in 15.10.325 D. have been met. Upon adoption, the city shall cause a copy of the resolution to be posted for at least ten days in at least three public places within the city. An appeal of the commission's action may be made at any time until the resolution becomes effective. Unless rescinded, amended or appealed any resolution adopted under this chapter automatically becomes effective ten days after passage and posting. F. Pr it. An approved variance permit shall lapse six months from the date of approval if the variance for which the permit was issued has not been implemented. The commission may grant a time extension not to exceed six months upon finding that circumstances have not changed sufficiently since the date of initial permit approval. A request for extension must be submitted prior. to the expiration of the permit. A public hearing shall not be required as a condition of granting the extension. (Ord. 626, § 3,1989; Ord. 98-06) Supplement No. 98-1 City of Seward 11198 15 - 36 CITY OF SEWARD CONY DEVELOPMENT P.O. Box 167 Seward, AK 99664 Phone (907) 224-4048 Fax (907) 224-4085 DATE: 8124100 FAX TO: Jim Pruitt COMPANY: Seward Ships Chandlery ' FAX NUMBER: (907) 224-5496 PHONE NO. 224-5 640 TOTAL PAGES: 1 FROM: Linda Rae Olsen, Planning Clerk 907.224.4048 (phone) 907.224.4095 (fax) lolsen Dewar net (e-mail) COMMENTS: Dear Mr. Pruitt, Rachel noted on your plat that your front setback is listed as + - 2Q fee , We hoped to preempt any future problems from coming up by reiterating that since there is a 20 foot required setback, your new building must setback 20 or 20+ feet in the front. It cannot setback less than 20 feet at any point along the front of the building. Thank you for your attention to this detail. • IF TFIERE ARE ANY PROBLEMS WITH THIS TRANSMISSION, PLEASE CALL (907) 224-4048. n P&Z Agenda Statement Meeting Date: March b, 2001 Through. Scott Janke, City Manager From: Rachel James, Planner Subject: Setbacks Background: In response, Mr. Pruitt has requested that the Planning and Zoning Commission review the setback requirements of the Zoning Code. Setbacks are required to insure sufficient open area for snow accumulation, sunlight, views, privacy, fire separation and visual relief between structures. Required setbacks are specific to each zoning district as identified in the Zoning Code, Development Requirements Table 15.10.220. The Zoning Code defines Setback as follows: The required minimum distance from right-of-way or lot line that establishes the area within which only fencing, landscaping, driveways, parking and similar uses are permitted. Any structure including, but not limited to, decks, stairways, porches, or other attachments to a building are specifically prohibited in the setback. Building eaves are permitted to extend into the setback a maximum of two feet. Based on the above definition, canopies or marques which extend out from a building are attachments to a building and clearly prohibited in the setbacks. RECOMMENDATION: None, for information and discussion. CITY OF SEWARD P.O. BOX 167 SEWARD, AL4SKA 99664-0167 'fop March 6, 2001 Seward Ship's Chandlery Tim Pruitt P.O. Box 944 Seward, AK 99664 Dear Mr. Pruitt, • Main Office (907) 224-4050 • Police (907) 224-3338 • Harbor (907) 224-3138 • Fire (907) 224-3445 • Fax (907) 224-4038 It has come to the attention of this office that an entry canopy has been erected on your new building on Lot 1, Block 3, Leirer Industrial Subdivision (preliminary plat). Based on the building site plan, the canopy is in violation of City Code §15.10.140 pertaining to setbacks, which states that any structure including, but not limited to, decks, stairways, porches or other attachments to a building are specifically prohibited in the setback. When the Community Development Office reviewed your building permit site plan for this building it was noted that the proposed canopy would extend into the required 20 foot front yard setback. In an August 18, 2000 letter from this office, you were made aware of the problem, and in subsequent phone conversations you agreed to leave the canopy off, or to apply for a variance prior to erecting it. Your Building Permit No. 2000-43 specifically states that the canopy is not part of this permit and has not been approver. To correct the violation, please remove the canopy from your new building on or before March 23, 2001. If you believe the canopy does not extend into the required 20 foot front yard setback, you must provide an as -built survey which verifies that the canopy is not located in the setback. At your request we have put the topic of setbacks on the Planning and Zoning Commission agenda for their regular meeting on March 6, 2001. Sincerely, , a The ity of Seward, Alaska ac el lames anner cc: Scott Janke, City Manager Dave Calvert, Manager of Engineering & Utilities Planning and Zoning Commission 1-\ r^ CITY OF SEWARD COMMUNITY DEVELOPMENT DEPARTMENT P.O. Box 167 • Seward, Alaska 99664 (907) 224-4048 APPLICATION FOR ZONING VARIANCE This completed application is to be submitted to the Community Development Department no later than three (3) weeks in advance of the next regularly scheduled Planning & Zoning Commission meeting held the first Wednesday of each month. The application must. be accompanied by the applicable fees established by city resolution; and if property is already developed, an as -built survey prepared by a surveyor registered in the State of Alaska; or scaled site plan of undeveloped land which shows: a) property dimensions;' b) location and dimensions of existing and planned buildings; c) parking configuration; d) driveways/access; e) natural features; f) variance requested; and gl other pertinent information. Applicant: James T. Pruitt Address: P.O. Box 944, Seward AK 99664 Telephone No.: (907) 224-5640 Property Owner (If other than applicant): Address: Telephone No.: Property Address: Leirer Industrial Lot Size: 75,684 (acres/SF) Lot 1 Block 3 Subdivision Leirer Industrial Tax Parcel No. - A. Variance Request for: 1' to 3' of overhang of doorway+ into 20' setback B. The existing situation is: The overhang on entrance of newly constructed store building may be 1' to 3' into the 20' setback C. Granting this variance would permit: Weather protection to customers entering store and would conform to other city codes allowing cover over door ways and sidewalks D. What structures are located on the property? store building E. What is the existing use of the property? retail store F. What is the proposed use of the property? same as above G. What is your development time schedule? has been built Variance Application 3/97 Page 1 of 3 L /l The Planning & Zoning Commission may only grant a variance if the Commission finds all of the following conditions are met. Each condition must have a response in as much detail as it takes to meet the condition. Please use additional, paper if there is not enough room here for your response. Failure to document your case reduces the likelihood of your variance being granted. The applicant hereby alleges that: 1. The proposed action is consistent with all of the general conditions required for a conditional use permit as follows: a. The use is consistent with the purpose of the Zoning Code and the purposes of the zoning district: Yes b. The value of the adjoining property will not be significantly Impaired: _The adioining is road right of way and railroad right of way c. The proposed use is In harmony with the Seward Comprehensive Plan: The code in down town and in Harbor commercial allow this and in commercial zone t e set back- a only 10, d. Public services and facilities are adequate to serve the proposed use: Yes e. The proposed use will not be harmful to the public safety, health or welfare: No 2. Special conditions and circumstances exist which are peculiar to the land or structures involved and which are not applicable to other lands and structures in the same district. These special conditions are: All other structures on this road sharing the same frontage do not conform to the 20' set back 3. The special conditions and circumstances have not been caused by actions of the applicant in that: To seta 1W long building back so that you may have a weather cover over the entrance would be not what this set back requirement was designed for 4. Financial hardship or inconvenience shall not be a reason for granting a variance in that: 6. Other nonconforming land use or structures within the district shall not be considered grounds for granting a variance in that: 6. The variance granted is the minimum variance that will make possible a reasonable use of the land, building or structure In that: The over hang is a reasonable use and would be only V past the allowed eave overhang Variance Application 3/97 Page 2of3 7. Granting the variance will not permit a use that is not otherwise permitted in the district In which the property Res In that: Al I other structures on this road do not com ly to the 20' set back - some are 0 lot line set back i hereby certify that all statements and other information submitted are true and accurate to the best of my knowledge, and that I, as applicant, have the following legal interest in the property: _Owner of record; _ Lessee; X Contract Purchaser;_ duly authorized to act for a person who has the following legal interest: , and that the owner of record Is -knowledgeable of this application If I am not the owner. 1 understand that the variance fee is non-refundable to cover the cost associated with processing this application and that It does not assure approval of the variance. Applicant's Signature:.�/5;QProperty Owner's Signature . '440ua Enc: Fee: $250 (ef paid Site plan ( 14 Location Map ( 1 As built survey i 1 Variance Application 3/97 Page 3 of 3 P&Z Agenda Statement Meeting Date: April 3, 2001 Through: Scott Janke, City Manager From: . Rachel James, Planner Agenda Item: Request for a setback variance Applicant/Owner. Request: Legal Description: Address: Zoning. Background: James T. Pruitt Setback variance to allow a 1 to 3 foot overhang of doorway into 20 foot setback Lot 1, Block 3, Leirer Industrial Subdivision (preliminary plat) 1714 Leiner Road Industrial In August 2000 the Community Development office reviewed Jim Pruitt's, Seward Ship Chandlery building plans to erect a combination store, warehouse, office building on Lot 1, Block 3, Leirer Industrial Subdivision (preliminary plat). At that time Mr. Pruitt was made aware of the fact that the proposed canopy on the west side of the new building would be located in the setback and would be a violation of the Zoning Code. Mr. Pruitt agreed not to include the canopy on the new building, and to pursue a zoning variance if he decided it was needed. The building permit specifically stated that the canopy was not part of the permit and was not approved See attached correspondence, notes and building permit. Recently it came to our attention that the canopy has been erected on the new building. Based on the site plan submitted with the building permit application, the canopy extends into the 20 foot front yard setback, and thus is in violation of the Zoning Code. A violation notice was sent to Mr. Pruitt on March 6, 2W, and the Planning and Zoning Commission was made aware of the situation at its March 6, 200 ? eeting. On March 15, 2001, the City received the enclosed variance application to allow the dooay overhang (canopy) to extend into the 20 foot front yard setback. Variance Review: According to City Code (§15.10.325), the Commission shall establish a finding that all of the following conditions have been found to exist prior to issuing a variance permit: 1. The proposed action must be consistent with all of the general conditions required for a conditional use permit. The variance request is either consistent with, or not applicable to, the conditional use.permit requirements as follows: A. The use is consistent with the purpose of this chapter and the purposes,of the zoning district. Applicant Response: Yes Staff Vnding: The property is zoned Industrial. Industrial retail sales and service businesses and warehouses are allowed uses in the Industrial District. B.' The value of adjoining property will not be significantly impaired. -Applicant Response: The adjoining -is road right-of-way and railroad right-of-way. Staff Finding:. It does not appear that allowing the door overhang (canopy) in the required front yard setback will have a negative impact on adjoining property, nor make any change in property values community wide. C. The proposed use is in ha=ony with the Seward Comprehensive Plan. Applicant Response: The code in downtown and in Harbor commercial allow this and in commercial zoned the setback is only 10'. Staff Finding: There does not appear'to be any specific reference in the Comprehensive Plan that relates to -the issue of setback variance requests. D. Public Services and facilities are adequate to serve the proposed site. Applicant Response: Yes • Staff Finding: Adequate water, sewer, and power are available to the property as well as adequate fire, police and solid waste disposal services. E. The proposed use will not be harmful to the public safety, health or welfare. Appplicant Response: No Staff Finding: There is no indication that the doorway overhang (canopy) will be harmful to the public safety, health or welfare. F. Any and all specific conditions deemed necessary by the commission to fulfill the above -mentioned conditiops shall be not by the applicant. These may iaclude but are not limitid to measures relative to access, screening, site development, building design, operation of the one and other similar aspects to the proposed use. 2. Special conditions and circumstances exist which are peculiar to the land or structures involved and which are not applicable to other lands and structures in the same district. Applicant Response: All other structures on this road sharing the same frontage do not conform to the 20 foot setback. Staff Finding: This condition has not been met as there is nothing peculiar to the land or structures involved which are not applicable to other lands and structures in the same district. All new construction in the Industrial Zoning District must meet current setback requirements identified in Seward City Code Table 15.10.220. . 3. The special conditions and circumstances were not caused by actions of the applicant. Applicant Response: To set a 60 foot long building back so that you may have a weather cover over the entrance would not be what this setback requirement was designed for." Staff Finding: This condition has not been met because the applicant was responsible for constructing the doorway overhang (canopy) in the setback after being informed by the City Community Development Office that it was not allowed in the setback, and the building permit specifically stated that the canopy was not approved or included in, the building permit. 4. Financial hardship or inconvenience shall not be a reason for granting a variance. Applicant Response: None Staff Finding: The applicant could have made adjustments in the location of the building on the property in order to accommodate the doorway overhang (canopy), as he was made aware of the Zoning Code provision which stipulates that no attachments to buildings are allowed in required setbacks, except that building eaves are permitted to extend into the setback a maximum of two feet. The fact that it will be an inconvenience for the applicant to remove the doorway overhang (canopy) since it has already been constructed is not a justified reason for granting the variance request. 5. No nonconforming land uses or structures within the district were considered as grounds for granting the requested variance. Applicant Response: None Staff Finding: Although the applicant has noted that the surrounding development does not meet current setback requirements, variance review criteria stipulates that can not be a factor in the commissions decision. This condition has been met as no nonconforming land uses or structures within the district were considered in this variance request review. 6. The requested variance is the minimum variance necessary to permit the reasonable use of the property. Applicant Response: The over hang is a reasonable use and would be only 1' past the allowed eave overhang. Staff finding: The property is currently developed with three existing buildings as identified on the attached map of Lot 1, Block 3, Leirer Industrial Subdivision (prel'iminary plat). The property is also used'for boat storage. Therefore this condition has not been met as there is a reasonable use of the property without the requested setback variance. 7. The requested variance will not permit a land use in a district where the use is prohibited. Applicant Response: All other structures on this road do not comply to the 20' set back - some are 0 lot line set back. Staff Finding: This condition has been met because the request is for a setback variance, and will not permit an unauthorized use of the property. Analysis: Setbacks are required to insure sufficient open area for snow accumulation, sunlight, views, privacy, fire separation and visual relief between structures. Required setbacks are specific to each zoning district as identified in the Zoning Code, Development Requirements Table 15.10.220. The Zoning Code defines Setback as follows: The required minimum distance from right-of-way or lot line that establishes the area within which onlyfencing, landscaping, driveways, parking and similar uses are permitted Any structure Including, bat not limited to, decks, stairways, porches, or other attachments to a buHAWg are spec Bally prohibited in the setback. Building eaves are permitted to extend into the setback a maximum of two feet Based on the above definition, canopies or marques which extend out from a building are attachments to a building and clearly prohibited in the setbacks. The reason the Planning and Zoning Commission can grant variances, or exceptions from provisions of the Seward Zoning Code is so that relief can be provided when Zoning Code requirements would deprive a property owner from the reasonable use of his real property (SCC 15.10.325 Variances). The variance review criteria specifies that the Commission shall establish a finding that all of the review criteria conditions have been found to exist as a prerequisite to issuance of a variance permit. As identified above in the staff findings not all of the conditions required for granting a variance have been found to exist in this request for a setback variance. Recommendation: Commission deny the requested setback variance. Sponsored by: Staff CITY OF SEWARD, ALASKA PLANNING AND ZONING COMMISSION RESOLUTION NO.2001-05 A RESOLUTION OF THE SEWARD PLANNING AND ZONING COMMIS- SION, DENYING A VARIANCE TO JAMES T. PRUITT FOR AN EXCEP- TION TO THE ZONING CODE SETBACK REQUIREMENT ON LOT 1, BLOCK 39 LEIRER INDUSTRIAL SUBDIVISION (PRELIMINARY PLAT) WHEREAS, in August 2000, the City of Seward (City) reviewed James Pruitt's building permit application to construct a new 40 x 160 combination store, warehouse, office building on Lot 1, Block 3, Leirer Industrial Subdivision (preliminary plat). At that time Mr. Pruitt was informed that, based on the submitted site plan, the proposed canopy on the west side of the building, would be located in the required front yard setback in violation of the Seward Zoning Code. The building permit issued for the construction on October 20, 2000 specifically stated that the canopy was not part of the building permit and was not approved; and WHEREAS, on March 6, 2001 the City mailed a zoning violation notice to James Pruitt documenting that the canopy had been erected on the new building in violation of Seward Zoning Code setback requirements and requesting that he correct the violation by removing the canopy from the building on, or before, March 23, 2001. The letter also stated that if he believed the canopy did not extend into the required 20 foot front yard setback, he must provide an as -built survey which verified that the canopy was not located in the setback; and WHEREAS, on March 15, 2001, the City received an variance application from James T. Pruitt requesting a setback variance to allow a one to three foot doorway overhang (canopy) into the twenty foot front yard setback on Lot 1, Block 3, Leirer Industrial Subdivision (preliminary plat) located at 1714 Leirer Road; and WHEREAS, on April 3, 2001, the Planning and Zoning Commission held the required public hearing on the variance application. NOW, THEREFORE, BE IT RESOLVED by the Seward Planning and Zoning Commission that: coon 1. According to SCC § 15.10.325.D., the Commission shall establish a finding that all of the following conditions have been found to exist prior to issuing a variance permit: 1. The proposed action must be consistent with all of the general conditions required for a conditional use permit. Seward Planning and Zoning Commission Resolution No. 2001-05 A. The use is consistent with the purpose of this chapter and the purposes of the zoning district. Finding: According to the Seward Zoning Code setbacks are required to insure sufficient open area for snow accumulation, sunlight, views, privacy, fire separation and visual relief between structures. The Zoning Code defines Setback as: 77ie required minimum distance from right-of-way or lot line that establishes the area within which only fencing, landscaping, driveways, parking and similar uses are permitted. Any structure including, but not Iimited to, decks, stairways, porches, or other attachments to a building are specifically prohibited in the setback. Building eaves are permitted to extend into the setback a maximum of two feet. Based on the above definition, canopies or marques which extend out from a building are attachments to a building and clearly prohibited in the setbacks. The property is zoned Industrial. Industrial retail sales and service businesses and warehouses are allowed uses in the Industrial District. B. The value of adjoining properly will not be significantly unpaired. Finding: There is no indication that the proposed building will significantly impair the value of adjoining property. C The proposed use is in harmony with the Seward Comprehensive Plan. Finding: There does not appear to be any reference in the Comprehensive Plan that relates to the requested setback variance. D. Public Services and facilities are adequate to serve. the proposed site. Finding: Adequate water, sewer, and power are available to the property, as well as adequate police and solid waste disposal services. E. The proposed use will not be harmful to the public safety, health or welfare. Finding: There is no indication that allowing a doorway overhang (canopy) to extend into the 20 foot front yard setback will be harmful to the public safety, health or welfare. F. Any and all specific conditions deemed necessary by the commission to fulfill the above -mentioned conditions shall be met by the applicant. These may include but are not limited to measures relative to access, screening, site development, building design, operation of the use and other similar aspects to the proposed use. None 1'1�" Seward Planning and Zoning Commission ' Resolution No. 2001-05 2. Special conditions and circumstances exist which are peculiar to the land or structures involved and which are not applicable to other lands and structures in the same district. Finding: This condition has not been met as there is nothing peculiar to the land of structures involved which are not applicable to other lands and structures in the same district. All new construction in the Industrial Zoning District must meet current setback requirements identified in Seward City Code Table 15.10.220. 3. The special conditions and circumstances were not caused by actions of the applicant, Finding: This condition has not been met because the applicant was responsible for construct- ing the doorway overhang (canopy) in the setback after being informed by the City Community Development Office that it was not allowed in the setback, and the building permit specifically stated that the canopy was not approved or included in the building permit. 4. Financial hardship or inconvenience shall not be a reason for granting a variant& Finding: The applicant could have made adjustments in the location of the building on the — property in order to accommodate the doorway overhang (canopy), as he was made aware of the Zoning Code provision which stipulates that no attachments to buildings are allowed in required setbacks, except that building eaves are permitted to extend into the setback a maximum of two feet. The fact that it will be an inconvenience for the applicant to remove the doorway overhang (canopy) since it has already been constructed is not a justified reason for granting the variance request. 5. No nonconforming land uses or structures within the district were considered as grounds for granting the requested variance. Finding: Although the applicant -has noted that the surrounding development does not meet current setback requirements, variance review criteria stipulates that can not be a factor in the commissions decision. This condition has been met as no nonconforming land uses or structures within the district were considered in this variance request review. 6. The requested variance is the minimum variance necessary to permit the reasonable use of the property. Finding: The property is currently developed with three existing buildings as identified on the attached map of Lot 1, Block 3, Leirer Industrial Subdivision (preliminary plat). The property is also used foxl�opt storage. Therefore, this condition has not been met as there is a reasonable use'•of the property without the requested setback variance. Seward Planning and Zoning Commission Resolution No. 2001-05 7. The requested variance will not permit a land use in a district where the use is prohibited Finding: This condition has been met because the request is for a setback variance, and will not permit an unauthorized use of the property. Section 2. Seward City Code 15.10.325.D, stipulates that the - Planning and Zoning Commission must establish a finding that all of the conditions addressed in Section l ofthis resolution have been found to exist as a prerequisite to issuance of a variance permit. As identified in the findings established in Section 1 of this resolution, the Planning and Zoning Commission is unable to establish a finding that all of the required review criteria has been met, and therefore hereby denies James T. Pruitt's request for a setback variance to allow a one to three foot doorway overhang into the required 20 foot front yard setback on Lot 1, Block 3, Leirer Industrial. Subdivision (preliminary plat). Section 3. This resolution shall take effect 10 days following its adoption. PASSED AND APPROVED by the Seward Planning and Zoning Commission this 3' day of April, 2001. THE CITY OF SEWARD, ALASKA a5L�k k" Carol Griswobt, Chair AYES: Griswold, Hohl, Keil, Larson, Martin, Smith NOES: None ABSENT: Patrick Sterling ABSTAIN: None ATTEST: Patrick.Reilly City -Clerk l OF 8;*- , .. o -� RP� SEAL � ze A�-p'IV`�o City of Sew=4 Alaska Planning Commission Mimdes April J, 2001 volume L Page182 Request by James T. Pruitt for a setback variance to allow a one to three foot doorway overhang into the required 20 foot front yard setback on Lot 1, Block 3, LeirerIndustrial Subdivision(Preliminary Plat), located at 1714 LeirerRoad. James stated that Pruitt was requesting a variance on a canopy that was already built. She noted her frustration that this was necessary since the review of the original building plans had clearly informed Pruitt that the canopy was not allowed. James stated that if Pruitt could verify that the canopy was not in setback, then the issue would be null and void. She outlined the variance criteria and stressed that these criteria had to be met prior to issuing a variance permit. James reviewed each condition, identified the applicant response, and the staff findings. James stated that the Administra- tion recommended a denial of this setback variance request. Notice of the public hearing as posted and published as required by law was noted, and the public hearing was opened. James Pruitt, Maple Street, stated that he had attended a meeting where the Commission was reviewing setback requirements. Pruitt hoped that the setbacks in this area would have changed prior to the building being completed. He clarified that the building, including the canopy, was a prefabricated building. Pruitt noted that he planned to have an as -built completed to show that the canopy was not really in the setback. He, felt that every building on Leirer Road was located in the setbacks. He asked the Commission to consider that a roof eve was allowed up to two feet into the setback. No one else requested to be heard and the public hearing was closed. Motion(KeiVHohi) Keil objected to the variance. Approve Resolution 2001-05. Larson verified with the Administration that the Seaman's Mission did not receive a variance for their deck, but did receive a variance for the 2' d story addition that was a few inches into the setback. Martin would rather not object, but felt she had to because the findings of fact were so clear. Griswold asked if this could be postponed to a time certain to allow for a work session to discuss and modify the setback requirements. James recommended that the variance be addressed tonight and then the Commission could request the administration prepare a code change. Larson stated that there had been work sessions on this topic before, and no decisions were made by the Commission. She noted that if there werenumerous non -conforming buildings in this area, then it was time to re-examine the code. Smith suggested objecting to the variance, but directing the won to not enforce. i ) iI City of SeWO.4 Alaska Planning Commission Minutes April 312001 Volume S, PaAelV Hold observed that all the Commissioners had sworn to uphold Seward's City Code. . The Commission discussed postponing the item, and James responded that the findings of fact were clear in this situation. She noted that the Commission reviewed changing the Code for setbacks in the past year and no consensus was reached. Motion Passed. Unanimous. Review and recommendation to the City Council on the conceptual design for the ci"wned property located at the southwest corner of Fourth Avenue and Adams Street. James reviewed the history of obtaining the property for the park and the progress of the plans. She stressed that concept designs were provided in.the packet and noted that once approved there may be adjustments and refinements. She outlined the phases of the project including Phase 1 consisting of preparing the area, grading, a retaining wall and restrooms. James stated that the park was scheduled for completion by 2003. She stated that the Administration recomn=ded approval. Notice of the public hearing as posted and published as required by law was noted, and the public hearing was opened. Carol Chaudiere, 1129 Cliff View, reviewed the concept of the plan. No one else requested to be beard and the public hearing was closed. Motion (Larson/Martin) Approve Resolution 2001-06. Larson supported the plan, but noted that a fountain was a challenge to maintain. Martin and Keil supported the plan. Motion Passed. Unanimous. Five minute recess until 9:00 PM. Review of proposed amendment to the Seward Zoning Code Table 15.10.225 to prohibit Lodging, hotel, motel, ion and lodge in the Multi -Family Residential (R3) Zoning District. James stated that this issue was discussed at the last meeting as part of ongoing concerns with the Jesse Lee Home. She stated that this rezone was not a property specific change and would prolu'bit lodging, hotel, motel, inn, and lodges in all areas zoned R3. James stated that this zoning code change would not create any non -conformities. She clarified that because this was a city wide change, property owners were not individually.notified. CITY OF SEWARD P.O. BOX 167 SEWARD. ALASKA 99664-0167 April 30, 2001 James T. Pruitt P.O. Box 944 Seward, AK 99664 • Main Office (907) 224-4050 • Police (907) 224-3338 • Harbor (907) 224-3138 • Fire (907) 224-3445 • Fax (907) 224-4038 RE: Variance Application for Doorway Overhang at 1714 Leirer Road on Lot 1, Block 3, Leirer . Industrial Subdivision (Preliminary Plat) At its April 3, 2001 meeting, the Seward Planning and Zoning Commission approved Resolution 2001-05 which denied your request for a variance to allow a doorway overhang within the 20 foot front yard setback on Lot 1, Block 3, Leirer industrial Subdivision (preliminary plat). A copy of Resolution 2001-05 will be mailed to you as soon as it is signal. Since the requested variance was not granted, the doorway overhang is in violation of the Seward Zoning Code and must be removed from the building. Ifyou believe the doorway overhang (canopy) does not extend into the required 20 foot front yard setback, plcaw provide an as built survey which verifies that the canopy is not located in the setback. I apologize for the inconvenience this has caused, however, you were made aware of this issue when you applied for your building permit. Your cooperation in correcting this violation as soon as possible will be appreciated. A certificate of occupancy will not be issued for the building until the doorway overhang (canopy) is removed. Please call me if you have any questions. Sincerely, The C' f Seward, Alaska t4:11ames Planner 947-224-4048 (phone) 907-224-4085 (fax) riaM-6@MNC9 net cc: Dave Calvert, Manager of Engineering & Utilities CITY OF SEWARD P.O. BOX 167 SEWARD. ALASKA 99664-0167 ro October 24, 2001 James T. Pruitt P.O. Box 944 Seward, AK 99664 Re: Occupancy permit for 1714 Leirer Road Dear Mr. Pruitt: • Main°Office (907) 224-4050 e Police (907) 224-3338 • Harbor (907) 224-3138 • Fire (907) 224-3445 • Fax (907) 224-4038 This will summarize past actions and provide you with the requirements for occupancy and use of your building at 1714 Leirer Road. The last inspection of these premises was conducted on June 4, 2001 by Building Official Dave Calvert, and Fire Chief Dave Squires. A copy of this. inspection for Building Permit 00-43 is attached listing several items which need to be corrected before an Certificate of Occupancy can be issued for the building. As you know, a Certificate of Occupancy is required for all commercial buildings under Section 109.1 of the 1997 Uniform Building Code (as adopted by the City of Seward). This section of the code states: 'Wo building or structure shall be used or occupied, and no change in the existing occupancy classification of a building or structure or portion thereof shall be made until the building official has issued a certificate of occupancy therefor as provided herein." The primary items which still need to be corrected prior to the occupancy or use of the building are the installation of a fire hydrant at the cul-de-sac on BamoffCircle and the removal or modification of the Canopy which extends into the 20 foot setback required byPlanning and Zoning Commission. The installation of the fire hydrant is the responsibility of Steve Leirer. He has informed me that as of today he does not intend to install the hydrant this year, in violation of the agreement between him and the City of Seward to install it in the summer of 2001. The installation of the hydrant was a condition of your Building permit and until it is installed you are not meeting the requirements for the Certificate of Occupancy. The Canopy was the subject of an appeal by you to the P&Z Commission which denied your request for a variance to allow a doorway overhang (Canopy) within the 20 foot setback area This also needs to be corrected as previously described to qualify for the Certificate of Occupancy. Therefore, you are hereby advised not to occupy or use the premises at 1714 Leirer Road until these items can be corrected and a Certificate of Occupancy is issued. Please contact me at 224-4071 if you have any questions. As always, you can appeal this decision to the City Council if you so desire. Dave Calvert, P.E. Manager, Engineering & Utilities cc: Scott Janke, City Manager Dave Squires, Fire Chief Rachel James, Planner SEWARD SHIP'S CHANDLERY P.O. BOX 944 SEWARO, ALASKA 99664 PHONE: (907) 224-5640 FAX: (907) 224-5496 October 30, 2001 ftcp'r,,,,, OCT r� Dave Calvert Manager, Engineering & Utilities City of Seward " w Dear Mr. Calvert This is in response to you letter of October 24, 2001 in regards to my occupancy of Seward Ship's Ace Hardware & Marine at 1714 Leire Road. The fire hydrant as i under stand it from my conversation with Mr. Steve Leirer will me installed as soon as weather permits in the spring. The Canopy is not an issue and has the required setback (20 foot). The Site plan turned in to the City for the building permit was not correct. This was an in house drawing of the building footprint and did not show the true and accrete set back. I have since then been in to we Rachel James in planning and given her drawings showing the 20-foot setback required. I hope this clears up any misunderstandings on this Occupancy issue. Sincerely, Jim Pruitt Seward Ship's Ace Hardware & Marine 3d� Z(ZI .. v / W, L.I 'Fz k tW1 r 0 a r,L a. X 23,100 S.F. t 0.53 ACRES N 89'54' 18" E 140.68' 2-STfBUIL :APARTMENTDING 1.57 A 20" E i 30' ORAINAGE ESMT 751684 S.F. 1.74 ACRES 2-STORY ,� METAL. FRAME N 89'59' 32" E _ 228.02 10' UT1LITY ESMT.S i coVERED STORAGE u� C9 J ' aD 1 • J �J 1 P.P. ACT G-2 1 fl r % 61 r I YAA J r �� r 2_S1t1RY W . om„ STORAM J 1 A - / a x 25,978 S'F' � � C3� Q60 �• 37 � t4P 0 � . - 11 2ta' r t-- ( r ' 3A r 30, 30' i 1 32.702 S.E. t 0,75 W. 1 t ` 2 A39. 0.9% i5A � t ,Tr � �'►'�. I ` ZONING — SITE FLAN sczv izw (SCC § 15.10.220) Property Steve Leirer Builder: Jim Pruitt, Seward Ship's Chandlery Property Address: 1714 Leirer Road Legal Description: Lot 1, Block 3, Leirw Industrial Preliminary Plat Tax Parcel No.14525006 Proposed Use: Coveted Delivery Dock Existing Structures: Retail Business,Warehouse 8t offices 7nnino DigHct industrial Use Allowed: Yes Review Requirements: Code Standards Project Proposal Bldg Ht (FT) 34 . Min buildable lot size (SF) 10,000 75,694 Lot wuitb (FT) 100 West —108 ft East — 235 ft Front Yard Setback (FI) 20 Side Yard Setback (FT) 10 WZst / yoafi� ID Side Yard Setback Adjacent Street (FT) 20 Rear Yard Setback (no rear for oorner lot) (FT) 10 t0 Special Setback when abutting a residential district 15.10.220 10 Alk Eaves 2' max in setbacks Max Accessory Bldg lit (Fi) 34 Max % lot coverage 100 exelds stbcks Less than 1000/0 Flood zone and 17' above 191W SCC 12.01.015 and KPB Code 21.06 Zone C Building crossing platted lot lines (Commercial) SCC 12.01.030 No Utility easements (check deed records and plats) West 10 ft, South 10 ft 30 & drainage esnt. Northeast quaff Parking Site Plan Reviewed by Community Development, Review attached 9 required, providing for approx 23 Date Received: Is Plan Complete: yestno Requested Additional Info: Address Letter Date: Site Platt: Approve"enled Sent to Bldg. Dept: Note: if a driveway is proposed on Seward HighwayiThird Avenue a state driveway permit is required. Community Development: C:\WPWIN60\MX DOCUMWS\FORMATS - WORD\SITE PLAN REVXLV\INDUSTRIAL .DOC June 9, 2000 i / ? CITY 00 SEWARD BUILDING PERMIT APPLICATION Seward S y40=- ' DATE: 2- CONTRACTOR:.. r. _.. S��-� �a } �� (LICENSE #) OWNER 21.c k uc fr Ai nvr I Address: Mailing: 9 U W S• y Telephone: lftQ- qZ;=' 1 23- F x7 Z-6� sw 3:R _ -- - E Mail Address: Street Address of Project: t1 u Tax Parce[ Number. Lot Blk. - Subdivision Class of Work - Commercial: [ ] New ( J Remodel [ ] Other Residential: [ ] New [ J Remodel [ j Other Nature of Work: CCott-ov ed 20c— �,. Digging Permit/Utility locate or Valuation Data: j2 Q aCompletion Date: ROW Permit Required [ ] Yes [ ] No Planning & Zoning Approval Required [ J Yes [ ] No Type of Approval iiiiiiiiiliii1i/litiiiiii;iiiifiiififiiiiifiiiiiiiiiifiiiifiiiiiiiiiiiiiiiifiiiifi�iiAf�f��f• ALL BUILDING IS TO BE iN CONFORMANCE WITH THE FOLLOWING 1. Uniform Building Code (USC) 2. Uniform Mechanical Code (UMC) . 3..Uniform Plumbing Code (UPC) , 4. National Electrical Code (NEC) 5. Uniform Housing Code (UHC). B. Uniform Fire Code (UFC):;.- 7. Title 12 of the City Code NOTICE: The granting of a permit does not presume to give authority to violate or cancel the provision of any other State, Borough or City low regulating constnution or the performance of constmIction. I hereby certify that I have read and examined this application and know the same to be true an correct. All provisions of laws and ordinances governing this type of work will be complied with whethe specified herein or not. ' _ PERMISSION TO INSPECT GRANTED B' Sr ynature of Owner (if Owner/Wilder) (Date) •���*iiiii*���•sii�rs*�rf��rr��:���*�s�s� i •'�re of Contractor or Authorized Agent (Date •**+*•iit��sr►r�a����►�*+issrr*ww*�rsi*r• Plans and Specifications Received by Dat Paid Receipt Number Received By—.— •iiNi*Aiirillihot liiii**sinkifi*iiiiiiiiiiiii#iii#!t►iii Building Permit Fee: Permit Issued: Plan Review Fee: _ - _ - . • Y i Total: L19 --- SCAL£. '":-m bu L_--GEr- F OUND ALUMthiUM CAP FOU"40 REI3hR 0 EASE1dfNT V,UT. POLE 0 P� pOy�R ® BoLL R ALL WATER TELEPNOtqE MANHOLE r---TO FENCE OVERHEAD UTILITY LINE --- DE7 AIL 'PA- SUejQNV5 7I,o�2°ao pwD; 98a2�L1e��2 1 I OSE SSO*N 0u tt=A�NK (F AECO�O. /0�1"�p�€ NQ �B L Su04�w51cX�, W. i a t It It I IA r � I k% E � s Y Is + a i� s � * Gist kN tit Is IL I �Ivi W N ,Wwn two y i .. - 5 � tit « fit _ ,+ US CITY OF SEWARD P.O. BOX 167 SEWAM, ALASKA 99664-0167 April 10, 2002 James T. Pruitt P.O. Box 944 Seward, Alaska 99664 Dear Mr. Pruitt: • Main Office (907) 224-4050 FROM t DATE OF TIME 40 ONE ► 000 �0 ,�� �r ❑ U RG EN1 TELEPHONED 0 CAME TO SEE YOU ❑ RETURNED YOUR CALI You recently applied for a Building Permit (#2002-09) for construction of a covered dock adjacent to the rear of the Ace Hardware Building located at 1714 Leirer Road. The purpose of the dock is for bottle storage associated with the Hardware store. Dave Squires has reviewed the plans and submitted the attached comments which must be addressed before a building permit can be issued. However, the Ace Hardware Building also has an outstanding zoning violation which has prevented the issuance of a Certificate of Occupancy for the building, namely the setback violation of the canopy over the front door. Please refer to the attachedinemorandum from Rachel James, Planner detailing this violation. As I recall, you requested a variance on the setback for this canopy from the Planning & Zoning Commission which was denied. Until this issue is resolved, and a valid Certificate of Occupancy for the Ace Hardware building at 1714 Leirer Road is issued, we will be unable to issue a building permit for your covered dock. Please contact me as soon as possible so we can resolve this problem. Sincerely Dave Calvert Building Official s cc: _ hel James, Planner Gerry Welsh, Manager, Engineering & Construction A MEMORANDUM DATE: April 10, 2002 TO: Dave Calvert, Manager of Electric Utilities Gerry Welsh, Manager of Engineering & Construction FROM: Rachel James, Planner SUBJ: Site Plan Review Building Permit 2002-09 Due to an outstanding zoning violation regarding the existing building on this property, Community Development can not recommend approval of the requested building permit. An April 30, 2001 letter from this office to James Pruitt requested that he provide an as -built survey to verify that the canopy (doorway overhang) is not located in the required 20 foot front setback. To date Nt. Pruitt has not provided that survey. Memorandum Date: March 26, 2002 To: Dave Calvert, Mgr of Electric Gent' Welsh,, Mgr of Engineering & Construction From: David Squires, Fire Chief Q6-1 Subj: Plan Review BP 2002-09, PrL; tt.addition Reviewed as occupancy M (H-2) The following items require clarification or additional information. Additional questions may arise from applicant's reply. The proposed building was reviewed as two different occupancies. The second choice may be the better option for the applicant. General items: area - 200 square feet. Open on three sides, will have fencing for barrier. Use of building is for storage of compressed gas cylinders.. 1. Review as H-2 occupancy. Structure will need a occupancy separation, rated for two (2) hours. This Is required under UBC Table 3-13 for H-2 to a M-occupancy. An automatic sprinkler is required under Chapter 9 of the UBC. A local alarm system Is required under Chapter 10 Section 1007.2.6 of the UFC. Amount of compressed gas cylinders does not have limit amount. Cylinders are required to be separated. Building will be required to have placards.' Fencing is required to have a locking gate(area must be secure). 2. Review as M occupancy. Structure will need a one (1) hour control area separation. Amount of compressed gas cylinders In area is limited to the amount stated in Table 3-D of the UBC or as modified by UFC section 8001.14.1. The amount of acetylene cylinders allowed is twelve (12), 3 exempt and 9 under Section 8001.14.1. The amount of oxygen cylinders allowed is forty-six (46),6 exempt and 40 under Section 8001.14.1. Cylinders are required to be separated. Building will be required to have placards. Fencing is required to have a locking gate (area must be secure). Suggest discussion with applicant on his options, before a building permit is issued. . Page 1 of 1 Malcolm Brown From: Malcolm Brown jmbrown@ctyofseward.neQ Sent: Tuesday, August 20, 2002 2:47 PM To: jpruitt@seward.net Cc: cItymgrQc1tyofseward.net; Malcolm G. Brown Subject: Hardware store Jim, I am unable to take any further action on the building permits for Ace Hardware. As I told you last week, I will not be able to issue any additional building permits for Ace Hardware until the Issue of the canopy and the setback encroachment is resolved. The options I recommended were to submit a current as-bulft by a registered land surveyor, to remove/shoden the canopy or to amend the setback requirements. I am confident that as we continue to work on this Issue, we will be able to satisfy the requirements of the Seward City Code and maintain the viability of your property. Malcokn 8/22/2002 P&Z Agenda Statement Meeting Date: November 6, 2002 Through: Scott Janke, City Manager From: Malcolm G. Brown, Planner Agenda Item: Amendment of Zoning Ordinance, Table 15.10.220. Development Requirements, to Allow Canopies, Awnings and Marquees to Extend Four Feet within the Setback in the Industrial Zoning District BACKGROUND & JUSTIFICATION: r At the September P, 2002 regularly scheduled meeting of the Planning and Zoning Commission, a Staff Memo introducing modification of the setback requirements for canopies in the setbacks in the Industrial Zoning District was discussed. The Commission discussed the advantages and disadvantages of allowing canopies, awnings and marquees in setbacks. The consensus of the Commission was to allow a work session after the Comprehensive Plan was adopted to review and make recommendations on all setbacks in all zoning districts, as had been established on the Pending P&Z Agenda Items list at the Council-P&Z joint work session on May 13th, 2002. This is presented as a Public Hearing item at this time due to concerns brought to staff by a property owner in the Industrial Zoning District and the need to make a formal response to the concerns. Presently, the Industrial Zoning District has a twenty foot fi+ont yard setback. Canopies, awnings and marquees are not allowed to extend into the setback. Setbacks are required to insure sufficient open area for snow accumulation, runoff from rain, sunlight, views, privacy, fire separation, sufficient land for future widening of the right-of-way, aesthetic quality of the community and visual relief between structures. The primary purposes of canopies, awnings or marquees are to protect people from rain and snow and for visual aesthetics of the building lines. Canopies, awnings or marquees could be allowed to extend into the setbacks. A similar allowance is made for eaves, which are currently allowed to extend two feet into setbacks. Several of the purposes of eaves are to provide overhead protection and visual aesthetics. The canopies, awnings or marquees could be limited to no more than a four foot extension into the front yard, so as not to become too much of a structural distraction. Additional benefits of having canopies, awnings or marquees in the setback are that having a building set back twenty four feet or more from the right-of-way could promote narrow parking lots. This would cause buildings to move even further from,the right-of- -4 way, causing a sense of isolation from the flow of traffic and giving a jagged appearance to the visual lines of the district. This also promotes ice buildup on parking lots, which then continually run off onto the sidewalks and pedestrian areas on the front of the property - Setbacks and projections into them are dealt with in a variety of ways by other communities throughout the state, demonstrating the need to adapt development requirements to local conditions. In the City of Homer, the Marine Industrial District and the General Commercial H District are the most similar to Seward's Industrial Zoning District. In both districts buildings have a twenty foot setback from all dedicated rights - of -way. No provisions are made for overhead projections. In the City of Soldotna, architectural features such as eaves may extend or project into a required side, front or rear yard a distance not exceeding three feet. In the City and Borough of Sitka, projections are not allowed into yard setbacks. A review of the online information of the Municipality of Anchorage did not find allowances for allowing .overhead projections in setbacks. There are some conditions which should be considered prior to allowing canopies, awnings or marquees in the setback. Canopies, awnings or marquees should not cause additional snow and rain runoff in the right-of-way. The right-of-way should also be of a standard width for the classification of road, i.e. arterial, collector, etc, as determined by administration. This is because roads with a substandard width might need to be widened at some point in the future. Additionally, adequate parking for large delivery vehicles such as flatbeds should be provided along the side or rear of the building, as protruding canopies, awnings or marquees could interfere with the parking and loadinghmloading of large vehicles. Additionally, care must be taken not to interfere with utility easements, as the Public Works department normally needs eight to nine feet of clearance for water service valve boxes and consideration needs to be given for accessing electric lines. An additional concern is the effect on lot coverages which would be created by allowing canopies, awnings or marquees in the setback. The definition of lot coverages makes no allowance for them and might need to have text inserted which would clarify the classification of canopies, awnings or marquees in the setback. Currently, building eaves are allowed to extend two feet into the setbacks and do not count against the lot coverage. The Seward City Code does have definitions for canopies, awnings and marquees. Chapter 15.20 Sips,15.20.015: Marquee fcanoav or awnhyJ., A permanent roof -like structure projecting beyond a building wall at an entrance to a building, or extending along and projecting beyond the building's wall, and generally designed to provide protection against the weather. Additionally, definitions with more specific structural requirements are found in the 2000 International Building Code, as adopted by the City of Seward. The definitions are as follows: 2000 International wilding Code P<IF., Section 3105 AWNINGS AND CANOPIES 3105.1 General. Awnings or canopies shall comply with the requirements of this section and other applicable sections of this code. 3105.2 Design and construction. Awnings and canopies shall be designed and constructed to withstand wind or other lateral loads and live loads as required by Chapter 16 with due allowance for shape, open construction and similar features that relieve the pressures or loads. Structural members shall be protected to prevent deterioration. Awnings shall have frames of noncombustible material, fire -retardant -treated wood, wood of Type IV sizes, or 1-hour construction with combustible or noncombustible covers and shall be either fixed, retractable, folding or collapsible. 31053 Canopy materials. Canopies shall be constructed of a rigid framework with an approved covering, that is flame resistant in accordance with NFPA 701 or that has a flame spread rating not greater than 25 when tested in accordance with ASTM E 84. Section 3106 MARQUEES 3106.1 General. Marquees shall comply with this section and other applicable sections of this code. 3106.2 Thickness. The maximum height or thickness of a marquee measured vertically from its lowest to its highest point shall not exceed 3 feet (914 mm) where the marquee projects more than two-thirds of the distance from the property line to the curb line, and shall not exceed 9 feet (2743 mm) where the marquee is less than two-thirds of the distance from the property line to the curb line. 3106.3 Roof construction. Where the roof or any part thereof is a skylight, the skylight shall comply with the requirements of Chapter 24. Every roof. and skylight of a marquee shall be sloped to down spouts that shall conduct any drainage from the marquee in such a manner so as not to spill over the sidewalk. 3106.4 Location prohibited. Every marquee shall be so located as not to interfere with the operation of any exterior standpipe, and such that the marquee does not obstruct the clear passage of stairways or exit discharge from the building or the installation or maintenance of street lighting. 3106.5 Construction. A marquee shall be supported entirely from the building and constructed of noncombustible materials. Marquees shall be designed as required in Chapter 16. Structural members shall be protected to prevent deterioration. e;/'2 Seward City Code (SCC) Table 15.10.220. Development Requirements: Structures in the Industrial Zoning District, Maximum building height (ft.): 34' Minimum buildable lot size (sq.R): See Note 7 10,000 (sq.ft. Minimum lot width (ft.): See Note 7 100' Minimum front yard setback (ft.): See Note 7 20' Minimum side yard setback 00; See Note 7 10, Minimum side yard setback adjacent to street (R.):See Note 7 20' Minimum rear yard setback (ft.): See Note 7 10' Maximum accessory building height (ft.): 34' Maximum lot coverage (%): See Note 6 100 Note 6, "Excludes setbacks in HC (Harbor Commercial) and I (Industrial)." Note 7, "In the Industrial District, no minimum lot size, width or setbacks are required for unmanned electronic sites." 15.10.230. Special setbacks -CB and I Districts. (b) Industrial district. Where industrial (1) districts abut residential districts, a minimum setback of ten feet shall be required. Additional definitions relevant to the issue are included for reference: Definitions: SCC 15.10.140 Lot, coverage. The area of a site covered by building or roofed areas, including covered porches, decks and accessory buildings, but excluding allowed projecting eaves, (SCC pg. 15-18). Right-of-way. An area or strip of public land which incorporates or is intended to be occupied by, but not limited to, streets, alleys, sidewalks, bike paths, curbs, gutters, landscaping and/or public utilities, (SCC, pg. 15-22). Setback. The required minimum distance from right -of --way or lot line that establishes the area within which only fencing, landscaping, driveways, parking and similar uses are permitted Any structure including, but not limited to, decks, stairways, porches or other attachments to a building are specifically prohibited m the setback. Building eaves are permitted to extend into the setback a maximum of two feet, (SCC, pg.15-22). Structure. Anything constructed or erected on the ground or attached to something having location on the ground, including, but not limited to, buildings, towers, and sheds. Fences, retaining walls less than three feet in height, signs and similar improvements of a minor character are excluded, (SCC, pg. 15-23). Yard; Front. The area extending across the full width of a lot, measured between the front lot line and the nearest exterior wall of the building, front of a bay window or the front of a covered porch or other similar projection, whichever is the nearest to the front lot line, (SCC, pg. 15-24). Public notification was sent to the 32 property owners in the Industrial Zoning district. No response was received at the time of publishing of the agenda. Consistency Checklist: NA Yes No City Plan Reference: Comprehensive Plan (1990) X _ The Comprehensive Plan makes no mention of setbacks within the Industrial Zoning District. Strategic Plan (1999) _ X The Strategic Plan encourages adjusting local development regulations, where appropriate, to encourage development that is consistent with our economic base vision (pg. 5)• RECOMMENDATION: Commission approve Resolution 2002-2, recommending that the City Council approve the attached Ordinance 2002-� amending Table 15.10.220, Development Requirements, to allow canopies, awnings and marquees to extend four feet within the setback in the Industrial Zoning District. Sponsored by: Janke CITY OF SEWARD, ALASKA PLANNING AND ZONING COMMISSION RESOLUTION 2002-24 A RESOLUTION OF THE SEWARD PLANNING AND ZONING COMMISSION OF THE CITY OF SEWARD, ALASKA.. RECOMMENDING THAT THE CITY COUNCIL AMEND TABLE 15.10.220 TO ALLOW CANOPIES, AWNINGS AND MARQUEES TO EXTEND FOUR FEET WITHIN THE SETBACK IN THE TRIAL ZONING DISTRICT >: WHEREAS, an applicant has requested an amendment be made 'fio the Zoning Code, and , Y 4: WHEREAS, the public notification process has been aii— 11M Its . NOW, THEREFORE, BE IT RESOLVED by.the Se6W aad P Zoning Commission that: Section I. The Commission =Otb rends :Ordin e' 2002- be. forwarded to City Council for approval. Section 2. This resolution shall .take effect immediatel n its adoption. PASSED AND APPROVED by the Seward-; Planning d Zoning Commission this 6" day of November, 2002. CITY OF SEWARD, ALASKA ATTEST: Jean City C ty Seal) Carol Griswold, Chair ', Keil, Larson, Griswold / 0) Sponsored by: Planning and Zoning Commission: P&Z Failed Motion to forward Introduction Date: Public Hearing Date: CITY OF SEWARD, ALASKA ORDINANCE NO.2002- A ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, AMENDING SEWARD CITY CODE TABLE 15.10.220, DEVELOPMENT REQUIREMENTS, TO ALLOW CANOPIES, AWNINGS AND MARQUEES TO EXTEND FOUR FEET WITHIN THE SETBACK IN THE INDUSTRIAL. ZONING DISTRICT WHEREAS, canopies, awnings and marquees are not currently allowed to extend into the setback in the Industrial Zoning District; and WHEREAS, canopies, awnings and marquees provide overhead protection and add to the visual aesthetics of buildings; and WHEREAS, when buildings are setback further from the street, there is a greater sense of isolation from the flow of traffic and the buildings in the area present a more Jagged visual appearance; and WHEREAS, allowing canopies, awnings and marquees to extend four feet into the setback ip the Industrial Zoning District will provide more effective utilization of the properties; and WHEREAS, it is in the public interest to maintain a city code that is up to date and in tune with current community needs; and WHEREAS, at its November 6, 2002 meeting, the Planning and Zoning Commission held a public hearing and recommended City Council approval of the proposed Zoning Code amendment. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SEWARD; ALASKA that: Section 1. Table 1E.10.220. Defvelonwneat Reauiremah is amended to read as follows: Minimum Front Yard Sot - back (fL) (See Notes 7 and 8, next page) r07 Note 8. In the Industrial District, canopies, awnings and marquees are allowed to extend four feet into the setback provided that the right of way is of standard width for the appropriate class ylcation of road adequate parking is available, and no interference with utility easements or parking occurs. Section 2. This resolution shall take effect ten (10) days following enactment.. ENACTED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, THIS DAY OF . 2002. AY9S: NOP$: AOs$WT: A44T = AMP Jean Lewis City Clerk (City Scat) THE CITY OF SEWARD, ALASKA Edgier Bletchford, Mayor % - tJ Ciq of saved Pkxni g Cmmiai Mintz Naaanber 6, 2002 Volmna 3 Aqp 315 Roach' stated that the City code states that a temporary use for a building was 180 days; she asked Bewardino if wbat he was requesting was a I80 day use. His response was that the ARR defines a temporary use on they lease sites as; the ARR could request the termination ofthe lease or removal of the building with a 30-day notice. Approval of Agenda and Consent Agenda Motion (Larson/Smith) Motion Passed Approve the Agenda and Consent Agenda Unanimous Consent Public Hearing Resolution 2002-24 Recommending City Council amend Table 15.10.220 to slow canopies, awnings and marquees to extend four feet within the setback in the Industrial Zoning District Brown reviewed Resolution 2002-24; he stated that the staffreport he had provided pointed out the pros and cons ofthe di ffhv t course of action. He stated that the options for the Comm*ion were to approve, approve with amendments, deny or postpone the Resolution. Notice ofthe public heating was posted and published as required bylaw was noted, and the public hearing was opened. Steve Llerer, Lierer Properties, LLC, Anchorage; spoke in support of the Resohrtion. He noted that the Leiner Industrial Subdivision Plat has been submitted to the Borough for approval. He spoke in support of amending the zoning code to allow over in the setback. He noted he bad spoken with an individual that cwttntly leased property the Industrial Zoning District. He stated that the building owned by the individual had. an overhang that was currently located in the setback by 18 inches. Leiner noted that he had requested a copy of the Anchorage Industrial Zoning Code noting that the front setbacks were 10 feet and zero for the side setbacks. No one else requested to be heard and the Public Homing was closed. Motion (McDonald/Smith) Approve Resolution 2002-24 McDonald noted that the property in the Industrial Zoning District was private property and that he supported allowing as much use of the property as possible. Smith stated he haf no problem supporting the issue to allow overhangs to extend four feet mto the setback m the Industrial District however he did have a problem supporting a zoning amendment brought about because one individual refused to follow the zoning code. Griswold requested the following written comments submitted by Commissioner Hohl be noted into the record. Griswold stated that Hohl noted that the Commission had previously made a decision to hold a work session following the adoption of the Con4mhensive Plan to review and make recommendation on set backs in all zoning districts. Hohl questioned the legal ability of the / de Ciq a &wcd Phut Co minus Armsda ,Nwanbw 6, 2002 Vahm 5, bg 316 Commission to make this change, noting that City Council was allowed to amend, or repeal the land use regulations. She also noted that the request needed to include the name and address of the applicant, including maps of the property. Hohl submitted she felt that takM action on the Resolution was in violation of Title 15. In response to the requests submitted by Hotel, Brown stated that Resolution 2002-24 recommended that the zoning change be forwarded to the City Council for adoption by Ordinance, . which was included in the packet. In response to no formal letter with tame and address; Brown stated that the request had been brought forward to the Commission by the City Manager. Brown r noted that the amendment was not addressing a site -specific property but all properties in the t Industrial Zoning District. Larson concurred with the previous comments, she stated the consensus of the Commission C had previously boon to review set backs at work session, after the approval of the Comprehensive Pisa Keil also concurred that the consensus of the Coffin was to hold a work session aft the adoption of the Comprehensive Plan. Motion Failed Yes: McDonaM No: Lanos, Smith, Roach', Kell, Griswold Unfinished Business Commission comments on the draft Comprehensive Plan. Discussion was held on the draft Comprehensive Plea The consensus of the Coffin was the draft had improved from that of tine fast draft however the plan needed a great deal more work. The over all layout of the plan was not bapr+oved from the previous draft. The Commission again noted the plan should be set up with goals, objectives and action items. A work session was scheduled for November 19, 2002. Rohl arrived and took her seat at the dies. New Business - None Informational Items and Reports (No action required) Discuss allowing temporary offices as a permitted use In the Industrial Zoning District Brown stated that the City Manager had requested that the Commission m-*w allowing temporary offices in the Industrial Zoning District as an outright use on the Land Uses Allowed table of the Seward Zoning Code. He noted that a request to edange to the Zoning Cock would require a Public Hearing, stating that the request had been wed to staff after the cut off date for the November meeting but the public hearing would be on the agenda for December. He noted that the current definition of temporary was in the building code and was a 180-day limit. CITY OF 5EWARD P.O. BOX 167 5EWARD, AIASKA 99664-0167 May 1, 2003 James T. Pruitt P.O. Box 944 Seward AK 99664 Re: Occupancy permit for 1714 Leirer Road Dear Mr: Pruitt: • Main Office (907) 224-4050 Police (907) 224-3338 • Harbor (907) 224-3138 • Fire (907) 224-3445 • Fax (907) 224-4038 CAY OF SEWARD PLANNM OMCS This will summarize past actions, provide you with the requirements for occupancy and use of your building at 1714 Leirer Road, and constitute notice of a potential penalty of up to $1000/day for continued violation of the zoning code. The last inspection of these premises was conducted on June 4, 2001 by Building Official Dave Calvert, and Fire Chief Dave Squires. A copy of this inspection for Building Permit 00-43 is attached, listing several items which needed to be corrected before a Certificate of Occupancy could be issued for the building. You corrected everything except item (7) "Canopy still in the setback". As you know, a Certificate of Occupancy is required for all commercial buildings;under Section 109.1 of the then existing 1997 Uniform Building Code (as adopted by the City of Seward). This section of the.code stated: "No building or structure shall be used or occupied, and no change in the existing occupancy classification of a building or structure or portion thereof shall be made until the building official has issued a certificate of occupancy therefor as provided herein." We have since adopted a new code, the International Building Code, which states essentially the same words in Section 110 of the iBC. The item which needs to be corrected prior to the occupancy or use of the building is the removal or modification of the Canopy and the porch, which extends into the 20 foot setback, as required by Planning & Zoning Commission (SCC Table 15.10.220). It was noted on your building permit that "The Canopy is not part of this permit & has not been approved". You were also notified during the construction of the building that the Canopy was in violation and needed to be corrected. The Canopy was the subject of an appeal by you to the P&Z Commission which denied your request for a variance to allow a doorway overhang (Canopy) within the 20 foot setback area. It was later firmly established by a surveyor that the Canopy is definitely in the setback. WA Further, you were notified by registered letter on October 20, 2001, that you needed to correct the violation of the Canopy intrusion into the setback, before an0 Occupancy Certificate could be issued and you could occupy the building. However, you occupied the building and have been operating a business (Ace Hardware) since November, 2001 in violation of the code, and have not responded to our requests for a correction ofthe violation. Twenty-nine (29) months have passed without any action on your part. Therefore you now have ninety (90) days to correct this violation of the code. You are hereby advised not to occupy or use the premises at 1714 Leirer Road until this item can be corrected and a Certificate of Occupancy is issued. If you continue to operate a business at this location and have not corrected this violation within 90 days, we will institute a potential penalty of up to $1000/day starting August Yd, 2003. Please contact me at 224-4071 if you have any questions. Sincerely; Dave Calvert, P.E. Building Official cc: Kris Erchinger, Acting City Manager Dave Squires, Fire Chief Malcolm Brown, Planner Attachment 1: Copy of Building Permit / 00" ce ' I INSPECTION AEPORT CITY OF SEWARD BUILDING DEPARTMENT JOB OWNER/LOCATION: zi I .o. P' U r 4 Building Permit #-z(90 ep e- Date of Inspaction_4a CONTRACTOR #: N a--7AMEILICENSE OK Q ft X_ ADDRESS: CONTRACTOR ADDRESS: LOT] BLOCK] r SUBDIVISION/ CONTRACTOR PHONE: FOOTING [ ] ELEC. TEMP. (] PLBG. UNDGR. ( j FOUNDATION [ ] ELEC. SVCE. (] PLBG. ROUGH [ ] BOND BEAM [ ] ELEC. ROUGH [ ] GAS TEMP. [ ) FRAMING [ ] ELEC. FINAL [ ] GAS [ ) INSULATION [ j FIRE FINAL (] MECHANICAL ( ] SHEETROCK [) ZONING [ ] MECH. FINAL ( ] STRUC. FINAL [ ] OTHER [ ] PLBG. FINAL ( ] OTHER [ ] OTHER [ ] [ 1 NO NON-COMPLAINCE OBSERVED ( 1 WILL RE-EXAMINE AT NEXT INSPECTION RECEIVED BY: K /S ICY n rAl z ( 1 CORRECTIONS ESSENTIAL AS EXPLAINED BELOW [ j DO NOT CON�EAL UNTIL RE -INSPECTED 191f nn tl !� �Prl ;� CQlip ,S jK 4R e s�IJC/Ct. WHEN CORRECTIONS ARE MADE, PLEASE CALL 224-4060 FOR INSPECTION DO NOT REMOVE THIS NOTICE ORIGINAL: BUILDING DIVISION YELLOW: CONTRACTORIOWNER PINK: SEWARD FIRE DEPARTMENT m INSPECTION h�PORT CITY OF SEWARD BUILDING DEPARTMENT Building Permit # 00 — Y3 Bate of Inspection JOB OWNER/LOCATION: CONTRACTOR NAMEILICENSE #: -u! M Pru,+" Orr ADDRESS: CONTRACTOR ADDRESS: 171y Lctrcv' LOT( BLOCK/ _ SUBDIVISION/ CONTRACTOR PHONE: FOOTING [ ) • ELEC. TEMP. C ] PLBG. UNDGR. [ ] FOUNDATION C ) ELEC. SVCE. [ 1 PLBG, ROUGH C ) BOND BEAM C) ELEC. ROUGH [) GAS TEMP. [ I FRAMING [) ELEC. FINAL Cad GAS [ ] INSULATION [ ] FIRE FINAL MECHANICAL [ l SHEETROCK [) ZONING [) MECH. FINAL 1>4 STRUC. FINAL 1A OTHER [) PLBG. FINAL t7�1 OTHER I ] OTHER [�C] C.o. [ ] NO NON-COMPLAINCE OBSERVED D' CORRECTIONS ESSENTIAL AS EXPLAINED BELOW WILL RE-EXAMINE AT NEXT INSPECTION [ ) DO NOT CONCEAL UNTIL RE -INSPECTED z Sw..�e .►sk..� ... COMMENTS: LR0 s � exib H.v14 'SE4 ✓ �f J WHEN CORRECTIONS ARE MADE, PLEASE CALL 224-4060 FOR INSPECTION DO NOT REMOVE THIS NOTICE ORIGINAL: BUILDING DIVISION YELLOW: CONTRACTORIOWNER PINK: SEWARD FIRE DEPARTMENT P&Z Agenda Statement Meeting Date: February 3, 2004 Through: Phil Shealy, City Manager From: Malcolm G. Brown, Planner Agenda Item: Decreasing the Setbacks in the Industrial Zoning District BACKGROUND & JUSTIFICATION: At the October 8dk November 5* December 2nd and January 6" meeting of the Planning and Zoning Commission, comments were made on development requirements in the Industrial Zoning District by business owners/operators. Information received from Steve Leirer, leaseholder for the properties in Leirer Industrial Subdivision, was presented. The focus was on setbacks and nonconforming strictures. The development requirements were also reviewed at work sessions held on October 21a, November 18P and January 20th. The current reasons listed in the City Code for setbacks are: SCC 15.10.220, Development requirements. (c) Setbackr — Yards (1) Setbacks are required to insure sufficient open area for snow accumulation, sunlight, views, privacy, fire separation and visual relief between strictures (page 15- 30). The current setbacks in the Seward City Code Table 15.10.220 Development Requirements (page 15-62) are: Front -- twenty (20) feet Side — ten (10) feet, (See Notes 4 and 7) Side adjacent to street - twenty (20) feet, (See Note 7) Rear - ten (10) feet, (See Notes 5 and 7) Notes from SCC (page 15-63) Note 4. From Seward I ighway/Phoenix Road intersection — south, a 5 foot setback each side; north, a minimum 5-foot setback each side as part of a combined 15-foot setback total between both sides. Note S. (pertains only to the Harbor Commercial District) Note 7. In the Industrial District, no minimum lot size, width or setbacks are required for unmanned electronic sites. At the December 27' mee ' , staff was directed to present a sample ordinance with decreased setbacks, which was discussed at the January 6'' meeting and the January 201h work session at which statements supporting decreasing the setbacks were developed by _f=J d) the commissioners. The amended setback distances being brought forth for Table 15.10.220 Development Requirements, are presented below in bold: Front — ten (10) feet Side — five (5) feet, (See Notes 4 and 7) Side adjacent to street - ten (10) feet, (See Note 7) Rear — five (5) feet, (See Notes 5 and 7) The recommended amendments in the ordinance to be sent to Council are: Table 15.10.220 Development Requirements is hereby amended as follows (Strikethroughs s deletions and are bold, Underlim = additions and are bold): RR Rl R2 R3 UR OR AC HC CB I RM INS P Minimum Front 20 20 20 20 20 20 10 None None 2# 20 20 20 Yard Setback QQ A.. (See Note 7, next page) Minimum Side 10 5 or 5 5 or 5 10 5 5 5 5 None 40 10 10 20 Yard Setback (1) (See Notes 4 and th min. witb S 7, next page) 15 S 15 total* total* Minimum Side 10 10 10 10 10 10 10 None None 2# 10 10 20 Yard Setback 10 Adjacent to Street (R) (See Note 7, next page) Hnimum Rear 10 10 10 10 10 10 10 None, None 40 10 15 20 Yard Setback (8.) Sand (See Notes 5 and 10* 7, next page) There are positive aspects associated with decreasing the setbacks just as there are positives associated with maintaining the current setbacks. The benefits of decreasing the setbacks: • Smaller setbacks will allow for more utilization of the land by the Industrial users. The Industrial land is valuable land and the users would like to have the option to have their structures be able to expand unto the land currently used for setback purposes. • Having smaller setbacks will make the Industrial district more similar to other districts with commercial uses, such as the Harbor Commercial, Auto Commercial and the Central Business District. Industrial property owners/users feel that they are burdened with larger setbacks than the other districts. • Larger structures could be built, thereby increasing the returns on property taxes. This is because the Industrial District allows for IWI* lot coverage, except for the land used for setbacks and parking requirements. • Some owners of nonconforming structures would have fewer concerns with rebuilding because their structures would no longer be in a nonconforming status. If their structures were lost or damaged to the extent specified in SCC 15.10.315, Nonconforming Lots, Structures and Uses, F.2., "should a nonconforming nonresidential structure or nonconforming portion thereof be damaged by any means to an extent of more than fifty percent of its replacement cost at time of destruction, as determined by the City Manager or his designee, it shall not be reconstructed except in conformity with the provisions of this chapter". This means that they would have a different footprint which would comply with the current setbacks. • Some communities have smaller setbacks for industrial uses than Seward. Industrial users in Seward are concerned that the other communities will have a competitive advantage, or will be perceived to be more supportive of Industrial uses and will be more efficient at attracting new businesses. • Industrial users have also been concerned that they had limited or no involvement with the public process when the development requirements for the current setbacks were added to the City Code. • Having a minimum setback of ten (10) feet would allow space for onsite laddering operations by the Fire Department on the front yards and the side yards adjacent to a street Laddering requires a minimum of four to one, i.e. a thirty four (34) foot high roof would require a setback of eight and a half (8 V) feet. Additional space is still needed at the base of the ladder to maneuver, stage equipment and conduct other aspects of the operation. Another concerns is that eaves aFe allowed to extend two (2) feet into the setbacks, this protrusion needs to be accounted for. The benefits of maintaining the current setbaclo: • Changing an established portion of the Code often creates a ripple effect throughout other portions of the Code due to the many interrelating aspects of the Code. Although staff commissioners and members of the public have put considerable effort into researching * the interrelationships, a conservative approach to changes often provides the best results in the long run • Users of public rights -of -ways need separation from potentially noxious industrial uses, as the intent of the Industrial District is to provide areas for the most noxious uses. Adjacent properly owners also need separation from the noxious fumes and noises. • The City is involved in ongoing litigation with a property owner who .has built in the setback. A variance was applied for but was denied Perhaps further deliberation on setbacks in the Industrial District should be postponed until this issue has been resolved in order to avoid the appearance of preferential treatment. • The current setbacks for sides to a street and front yards allow for future expansion of rights -of -ways. This type of an action will become extremely difficult if structures are allowed to be expanded into the current setbacks. • Maintaining visual separations between structures and rights -of -ways helps to sustain the aesthetics of the community. Although visual aesthetics are difficult to quantify, and quantifiable measurements are needed for a subjective evaluation, they are nevertheless a very real aspect of the overall attractiveness of the community. While it is not realistic to expect the Industrial District to be as attractive as other districts, steps should be taken to ensure that it doesn't become more unattractive. • Fire fighting requires maneuver area on the ground to conduct operations, and it is realistic to require properly owners to provide adequate space on their land to conduct operations. This is particularly relevant of the Industrial District because the maximum lot coverage is 100%, excluding setbacks. Even with firewalls, buildings will need to be laddered to attack fires fiom the roof and to create ventilation channels for flames and fumes and to evacuate people and personal Property. The Building Code allows for buildings to be on zero lot lines with the appropriate firewalls, and also has separation distances between buildings depending on the type of use, construction and design. However, if a fence is placed on the lot line, that may cause inadequate space for laddering. • Current setbacks allow space for snow storage onsite. With smaller setbacks and the I Me lot coverage (excluding setbacks), it is likely that more snow will be pushed into the right-of-way, as is commonly done by the businesses in the Harbor Commercial District. The public should not be burdened with this additional expense. Additionally, snow on roofs should not shed onto adjacent properties or rights -of -ways, as required by SCC 15.10.220.C.5., "Ail structures shall be designed and constructed to prevent roofs from shedding snow onto adjacent lots, structures, fences, or other property." • Maintaining adequate side and rear yard setbacks is needed to ensure that enough sunlight is available for adjacent properties, as per SCC 15.10.220.C.I., "Setbacks are required to insure sufficient open area for snow accumulation, sunlight, views, privacy, fire separation and visual relief between 'structures " Causing adjacent properties to have any additional amount of ice and snow does not promote orderly development. • Adequate space needs to be allowed for public utilities and the future expansion of utilities. If minimal or no front yard setbacks are allowed, the utilities which protrude, such as fire hydrants, street lights, power poles and transformers for underground power, will have to be placed in the rights -of -ways. Although this is frequently where they are placed, the consideration for flexibility needs to be made for situations where placement in the right-of-way is not practical. This has the potential to interfere with drainage ditches, can cause accelerated erosion for sidewalks due to seepage and different rates of expansion and contraction for the dissimilar material which would protrude through the sidewalk. • The current setbacks can not be used for structures, but they can be used for storage and can support other operations for the users, therefore it is incorrect to say that the land used for setbacks has no value to the Industrial DistricL • The current nonconforming structures which would need to be rebuilt when lost or severely damaged can be dealt with as a separate issue. This could be done by amending the Code to allow the structures to utilize their original footprint provided that the footprint does not encroach into a right-of-way, utility easement and adjacent properties. Maintaining the current setbacks prevents structures from being damaged by subsidence when the adjacent rights -of -ways are worked on and have trenches for underground utilities or drainage ditches are emplaced This could happen with zero -lot line or a similarly minimal type of setback. Relevant portions of the Seward City Code have been included below for reference. SCC 15.05.0259 Land Use Districts -Established, definitions. (10) Industrial district (1). Established as a district in which the principal use of land is for business, manufacturing, processing, fabricating, repair, assembly, storage, wholesaling and distributing operations, which may create some nuisance and which are not property associated nor compatible with residential land uses. It is intended to provide environmental safeguards for people employed in or visiting the district. Some visual amenity is expected in this district to make it compatible with adjoining residential or business districts (page 15-8.2). SCC 15.10.140, Definitions. Non -conforming building. Any building or portion thereof lawfully existing at the effective date of the ordinance affecting it and which does not conform to all of the use, height and density regulations of the zone in which it is located (page 15-20). Non -conforming use. A use which lawfully occupied a building or land at the effective date of the ordinance affecting it that does not conform to the use provisions of the zoning district in which it is located (page 15-20). Setback The required minimum distance from right -of --way or lot line that establishes the area within which only fencing, landscaping, driveways, parking and similar uses are permitted. Any structure including, but not limited to, decks, stairways, porches or other attachments to a building are specifically prohibited in the setback. Building eaves are permitted to extend into the setback a maximum of two feet (page 15-22). SCC 15.10.230 Special setbacks — CB and I (industrial) districts. (b) Industrial district. Where Industrial (1) districts abut residential districts, a minimum setback of ten feet shall be required. Staff note: there are no instances where Industrial districts abut residential districts. CONSISTENCY CHECKLIST: Yes No N/A 1. Comprehensive Plan (1990) _ —& The Comprehensive Plan promotes the need to continue to provide adequate land area for industrial development (page 30). This statement does not give clear guidance on the setback needs of individual Industrial lots. Does it indicate that the current amount of Industrial land be sustained, more land should be rezoned to Industrial, greater setbacks are needed, or lesser setbacks are needed? 2. Strategic Plan (1999) _ -A-L The Strategic Plan does not specify land use actions at this level of detail. RECOMMENDATION: Staff recommends that the Commission maintain the current setbacks in the Industrial Zoning District by not approving Resolution 2004-06, a Resolution of the Seward Planning and Zoning Commission of the City of Seward, Alaska, recommending that the City Council amend the Seward City Code Table 15.10.220., Development Requirements, to decrease setbacks in the Industrial Zoning District. 171 Sponsored by: Planning and Zoning Commission CITY OF SEWARD, ALASKA PLANNING AND ZONING COMMISSION RESOLUTION 2004-06 A RESOLUTION OF THE SEWARD PLANNING AND ZONING COMMISSION OF THE CITY OF - SEWARD, ALASKA, RECOMMENDING THAT THE CITY COUNCIL AMEND THE SEWARD CITY CODE TABLE 15.10.220., DEVELOPMENT REQUIREMENTS, TO DECREASE SETBACKS IN THE INDUSTRIAL ZONING DISTRICT WHEREAS, the Planning Commission has requested amendments be made to the Zoning Code; and WHEREAS, the public notification process has been complied with. NOW, THEREFORE, BE IT RESOLVED by the Seward Planning and Zoning Commission that: Section I. The Commission recommends Ordinance 2004- be forwaidcd to City Council for approval. Section 2. This resolution shall take effect immediately upon its adoption PASSED AND APPROVED by the Seward Planning and Zoning Commission this 3rd day of February, 2004. Seward Planning and Zoning Commission Resolution No. 2004-06 Page 2 AYES: NOES: ABSENT: ABSTAIN: ATTEST: Smith, Hohl,larson, Daley Keil Roach', Griswold None None � -. J�� Jean Lewis --- City Clerk 0� SE. L @" r�, R, •' 4" OF �lrnlpf`tt! THE CITY OF SEWARD, ALASKA M 'Anna Ke% Chad q City of Se~4 Alaska Planning Commission 1Mnutes February 3, 2004 Vol~ 5, Page 421 Commission discussed the motion. Smith stated that safety concerns were add as standard requirements ofthe project. It was stated that the motion caused confusion. Cow Daley clanlied again with staff that these items were already required. Motion Failed Vote on maim motion as amended Motion Passed Commissioner Griswold took her seat at the dial. Yes: Roach% Hobl;, Kell No: Smith, Larson, Daley Abstain: Griswold Yeas: Daky, Smith, Roach', Hopi, Larsou, Kell No: None Abstain: Griswold Resolution 200446, recommending that City Council amend the Seward City Code, Table 15.10.220, Development Requirements, to decrwe setbac*x in the Industrial Zoning District Brown read and reviewed the Resolution and Agenda Statement for the public. He noted that the current were to decrease the setbacks as follows: Front Setback, 20 down to 10; Side Yard Setback, 10 down to 5; Side Yard Adjacent to Street, 20 down to 10; Rear Yard Setback, 10 down to 5, Brown noted that the City attorney had reviewed the Agenda Statement and the Resolution and had noted that the City had pending &n gation on the subject and that change to the setbacks at the runs time could give the appearance of prefm+cutial badmart. Notice of public hearing being posted and published as u quired by law was noted and the public hearing was opened Jerry Waliezer, outside ofCity, spoke in support of zero setbacks in the Industrial Zoning District. He stated that he felt City administration was working against the busirasses in the Industrial. district. Steve Leiner, Anchorage, spoke in support of the reduction of setbacks in the Industrial Zone. He noted that sevaal businesses in the Industrial district bad grown and needed to use moreoftheir land. He encouraged the City and the administration to sbow more support for the businesses in the Industrial District. He stated that snow removal was the land hokdm mspon4WO (1- A City of Seward, Alaska Planning Commission Minutes February 3, 2004 Vohm S, Page 422 Doug Lech ner, Seward, thanked the Commission and staff tior the many hows of work that had bean spent on the setback issue and voiced support for the resolution. Pat Marrs, outside the City, spoke in support of the reduction of the setbacks. He requested that it be noted that he felt it was very inappropriate for staff to make ar give recommendations to the Commission, he stated thatthe Planningand Zoning Commissionmade the roc;ommmdationandtheir recommendation was forwarded to City Council for a decision No one else requested to be heard and the public bearing was closed. Motion (Daley/Larsou) Approve Resolution 2004-06 Daley spoke in support of the reduction of setbacks in the Industrial Zoning District. Roach' voiced safety concern with reducing the setbacks. Motion (Daley/Smitb) Motion Passed Amend Ordinance, 7* Whereas, delete to so less then tee (10) lee& Yes: Daley, Smith, Roach, Hohl, Larson, Kest No: Griswold Griswold voiced concern that the only support for the reduction of setbacks came from the property holders m the Leiner Industrial area. She noted that any change applied to all of the Industrial Zoning District and that the Leiner area was a small portion of the entire Industrial Zone. Griswold stated that she had done a drive through to observe the Industrial area and noted that she found n=V properties out of compliance by using the Rigbt-of-Ways for snow storage even with current setbacks. She stated she did not support this issue. Hotel voiced support for the staf. She supported the reduction of the setbacks. Motion (Daley/Larson) Motion Passed Motion (Griswold/Lams) Amend Ordinance, delete Sa Whereas and replace with "Whereas, decreasing the setbacks will increase the economic potential of privately owned, City owned and other publicly owned lands" Unaninwus Change the words will to "may" in the 3ie, O and a Whereas. Commissioner Daley requested that each Whereas be addressed as an individual motion. Commission discussed and agreed to the request. 01 City of Seward Alaska February 3. 2004 ftming CoA nbilon Minutes Volume 3, Page 423 Change the word will to "may" in the Yd Whereas Kett stated she did not support the change, she preferred the positive statement. Griswold stated the Whereas was untrue with the use of the word will, she noted that by reducing the setbacks there was no guarantee that the statement would happen. Motion Passed Yes: Griswold, Larson, Daky, Smith, Hohh, Roach' No: Kell Change the word will to "may in the 4" Whereas. Motion Passed Yes: Smith, Lsnos, Daky, Hohl, Roach`, Griswold No: Kell Change the word will to "may in the 6� Whereas. Hotel stated that she felt the City code supported the orderb and stable development in the Industrial Zoning District; therefore the word will should remear. A Motion Failed Yes: .None No: Griswold, Daley, Smith, Larson, Hotel, Roach', Keil Notion (Daky/Smith) Amend Ordinance, delete 4* Whereas Daley stated the Whereas was a repeat of the 3' Whereas. Motion Passed Unanimons Motion (Daiey/Hohi) Amend Ordinance; V Whereas, change to "Whereas various Industrial property owners and lane holders have requested deemsing the setbaeb in the Industrial Zoning District." Daley expressed concern that the use of the persorAi name Steve Leirer implied that only the Leiner IndustrW ,Am was being addressed in the Ordinance. Q� Chy of Seward, Alaska February3, 2004 Motion passed Motion (Griswoid/Roach� M mting Commission Mumtes Volume S, Page 424 Unanimous Amend Ordinance, Table under Minimum Side -yard Setback; return the set back to 10 feet. Roach' requested a clarification from staff as to if a S foot side setback would allow for laddering during an emergency. Staff response was No. Motion Failed Motion (Griswold/Roach') Motion passed Vote on the Main Motion as Amended Motion Passed Unfinished Business Yes: GriswoK Roach', Hohl No: Larson, Daley, Smith, Kell Amend Ordinance, Table under Minimum Rear Yard Setback; return the set back to 10 feet. Yes: Hohl, Griswold, Daley, Smith Roach', Kell No: Larson Yes: Smitb, HoU Larson, Daley, Kell No: Roach', Griswold, Review and discussion of tie Working Draft Ordinance of the City Council of the City of Seward, Alaska, amending the Seward City Code, Title 15.20. signs, concerning conditions for freestanding signs Due to the late hour the consensus ofthe Commission was to move the topic to the February 17, 2004 work ses.siom Informational Items and Reports (No action required) Notice of the Feb=" 17, 2004 Op m House Meeting on the Comprehensive, Conservation Plan for the Kend National Wi dl* Refuge by the U.S. Fish and Wildlife Service Kenai National Wildlife Refuge Commission Comments Commission comments were forgone so that public covarnent could be beard due to the sunset code of 11:00 pm. X3 Council Agenda Statement Meeting Date: July 26, 2004 Through: . Phil Shealy, City Manager From: Malcolm G. Brown, Planner Agenda Item: " Decreasing the Setbacks in the Industrial Zoning Distort BACKGROUND & JUSTIPTCATION: At the February 3rd meeting of the Planning and Zoning Commission, a public hearing was. held on decreasing the setbacks in the Industrial Zoning District ' These areas include SNIIC, the bead of Resurrection Bay, Metco and Resurrection Bay Seafoods. A resolution recommending that Council amend the setbacks was passes. At the October $d" November 5d- December 2od and January 6`h meetings, comments were made on development requirements in the Industrial Zoning District by business ownenJopetators. Information received from Steve Leiter, landowner for the properties in I.eirer Industrial Subdivision, was presented at the meetings and work sessions. The focus was on setbacks and nonconforming striacu s. The development requirements were also reviewed at work sessions held. on October 21' , November le and January20m. The current reasons listed in the City Code for setbacks are: SCC 15.10.220, Development requirements. (c) Setbacks —Yards. (1) Setbacks are required to insure sufficient open area for .snow accumulation, sunlight, views, privacy, fire separation and visual relief between structures (page 15- -30). The current setbacks for the Industrial Zoning District in the Seward City Code Table 15.10.220 Development Requirements (page 15-62) are: Front —twenty (20) feet Side -- ten (10) feet, (See Notes 4 and 7) Side adjacent to street - twenty (20) feet, (See Note 7) Rear - ten (10). feet, (See Notes 5 and 7) Notes from SCC (page 15--63) Note 4. From Seward Highway/Phoenk Road iatemection — south, a 5 foot setback each side; north, a minimum 5-foot setback each side as part of a combined 15-foot u1bacl: total between both sides. Tote 5. jpv:rtains otdy to the Harbor Commercial District) Now 7. N the Industrial Zoning District, no minimum lot size, width or setbacks are required forunmanned electronic sites. K41 The recommended amendments in the ordinance which the Planning and Zoning Commission wishes to be considered by Council are: rgk 15.10.220 De ylament Reaui'rements is hereby amended as follows (Strikethroughs = deletions and are bold, Underline = additions and are bold): M RI R2 R3 UR I OR AC HC CB I RM INS P Minimum Front. 20 20 20 20 20 20 10 None None 30 20 20 20 Yard Setback (ft.) 10 (See Note 7, next — page) Minimum Side Yard Setback (8) 10 5 or S 5 or S 10 5 5 5 5 None 40 10 10 20 (See Notes 4 and min' with min- with S 7, next page) 15 15 total* total* Minimum Side 10 10 10 10 10 10 10 Now None 20 10 10 20 Yard Setback 10 Adjacent to Street (ft.) (See Note 7, next page) Wnimum Rear Yard Setback (ft.) 10 i0 10 10 10 10 10 Noon, None 10 10 15 20 (See Notes 5 and and 7, next page) 10* 1 Following is a comparison of benefits associated with decreasing the setbacks and benefits associated with maintaining the current setbacks: The benefits of decreasing the setbacks: • Smaller setbacks will allow for more utilization of the land by the Industrial users. The Industrial land is valuable land and some users would like to have the option to have their structures be able to expand into the land currently used for setback Purposes - Having smaller setbacks will make the Industrial district more similar to other districts with commercial uses, such as the Harbor Commercial, Auto Commercial and the Central Business District. Some Industrial property owners/users feel that they are burdened with larger setbacks than the other districts. • Larger structures could be built, thereby increasing the returns on property taxes. This is because the Industrial District allows for 1000% lot coverage, except for the land required for setbacks and paridng requirements. • Some owners of nonconforming structures would have fewer concerns in the event of rebuilding because their structures would no longer be in a nonconforming status. If existing nonconforming structures are lost or damaged to the extent specified in SCC 15.10.315, Nonconforming Lots, Structures and Uses, F.2., "should a nonconforming nonresidential structure or nonconforming portion thereof be damaged by any means to an extent of more than fifty percent of its replacement cost at time of destruction, as determined by the City Manager or his designee, it shall not be reconstructed except in conformity with the provisions of this chapter." This means that they may have a different footprint to comply with the current setbacks. • Some communities have smaller setbacks for Industrial uses than Seward. Industrial users in Seward are concerned that the other communities will have a competitive advantage, or will be perceived to be more supportive of Industrial uses and will be more efficient at attracting new businesses. • Having a minimum setback of ten (10) feet would allow space for onsite laddering operations by the Fire Department on the front yards and the side yards adjacent to a street. Laddedng requires a minimum of four to one horizonW separation, i.e. a thirty four (34) foot high roof would require a setback of eight and a half (8 h) feet. Additional. space is still needed at the base of the ladder to maneuver stage equipment and conduct other aspects of the operation. Sufficient room for laddering must also consider that eaves are allowed to extend two (2) feet into the setbacks. The benefits of maintaining the current setbacks: • Industrial Zoning District uses differ significantly from other commercial land uses, therefore comparisons with other area such as the Harbor Commercial Zoning District or the Central Business District are not relevant. • Users of public rights -of -ways need separation from potentially noxious industrial uses, as the intent of the industrial District is to provide areas for the most noxious uses. Adjacent property owners also need separation from the fumes and noises in order to most efficiently conduct operations on their property. • The City is involved in ongoing litigation with a property owner who has built in the setback. A variance was applied for but was denied Perhaps fiather deliberation on setbacks in the Industrial District should be postponed until this issue has been resolved. The current setbacks for sides to a street and front yards provide options for future expansion of rights -of -ways. As some of the sheets are only fifty feet wide, the minimum required by the City Code, it is possible that there will need to be widening at some point in the future, due to the nature of traffic in the Industrial Zone. Widening of rights -of -ways will become extremely difficult if structures are allowed to be expanded into the current setbacks. • Maintaining visual separations between structures and rights -of -ways helps to sustain the aesthetics of the community. Although visual aesthetics are difficult to quantify, and quantifiable measurements are needed for a subjective evaluation, they are nevertheless- a very real aspect of the overall attractiveness of the community. While it is not realistic to expect the Industrial District to be as attractive as other districts, steps should be taken to. ensure that it doesn't become more unattractive. • Fire fighting requires maneuver area on the ground to conduct operations, and it is realistic to require property owners to provide adequate space on their land to conduct operations. This is particularly important in the Industrial District because the maximum lot coverage is 100'/0, excluding setbacks and parking requirements. Even with firewalls, buildings will need to be laddered to attack fires from the roof and to create ventilation channels for flames and fumes and to evacuate people and personal property. The Building Code allows for buildings to be on zero lot lines with the appropriate fmwalls, and also has separation distances between buildings depending on the type of use, construction and design- However, if a fence is placed on the lot line, that may cause inadequate space for laddering. • Current setbacks allow space for snow storage onsite. With smaller setbacks and the 100% lot coverage (excluding setbacks), it is likely that more snow will be pushed into the right-of-way, as is commonly done by the businesses in the Harbor Commercial District. The public should not be burdened with this additional expense. Additionally, snow on roofs should not shed onto adjacent properties or rights -of -ways, as required by SCC 15.10.220.C.5., "All structures shall be designed and constructed to prevent roofs from shedding snow onto adjacent lots, structures, fences, or other property." • Maintaining adequate side and rear yard setbacks is needed to ensure that enough sunlight is available for adjacent properties, as per-SCC 15.10.220.C.1., "Setbacks are required to insure sufficient open area for snow accumulation, sunlight, views, privacy, fire separation and visual relief between structures." Causing adjacent properties to have any additional amount of ice and snow does not promote orderly development i Adequate space needs to be allowed for public utilities and the firture expansion of utilities. An example is provided by the horizontal separation needed for underground electric lines, phone and cable, which also carry voltage and the X'7 potential underground natural gas lines which are currently being sought. If natural gas lines are installed, both utilities would benefit from the safety and cost effectiveness of conducting operations which would be provided by locating on opposite sides of the streets. When they are w4ocated on the same side of the street, the potential for damaging an adjacent line when excavating is much higher. The life -safety issues which can occur when the electric lines ignite the natural gas lines if damaged during excavation are also a major concern. + If minimal or no front yard setbacks are allowed, the utilities which protrude, such as fire hydrants, street lights, power poles and transformers for underground power, will have to be placed in the easements or rights -of -ways. Although this is frequently where they are placed, the consideration for flexibility needs to be made for situations where placement in the right-of-way is not practical. This has the potential to interfere with drainage ditches, can cause accelerated erosion for sidewalks due to seepage and different rates of expansion and contraction for the dissimilar material which would protrude through the sidewalk. • The current setbacks can not have structures in them, but the setbacks can be used for storage and can support other operations for the users, therefore it is misleading to say that the land used for setbacks has no value to the Industrial District. + The line-0f-sight triangle for corner lots should be considered and decreasing setbacks may cause public safety concerns. • Maintaining the cwrent setbacks prevents structures from being damaged by subsidence when the adjacent rights -of -ways are worked on and have trenches for underground utilities or drainage ditches emplaced. This could happen with zero - lot line or a similarly minimal type of setback. Relevant portions of the Seward City Code have been included below for reference, no changes are recommended for them: SCC 15.05.025, Land Use Districts -Established, definitions. (10) Industrial district (1). Established as a district in which the principal use of land is for business, manufacturing, processing, fabricating, repair, assembly, storage, wholesaling and distributing operations, which may create some nuisance and which are not properly associated nor compatible with residential land uses. It is intended to provide environmental safeguards for people employed in or visiting the district. Some visual amenity is expected in this district to make it compatible with adjoining residential or business districts (page 15-82). M SCC 15.10.140, Definitions. Non -conforming building. Any building or portion thereof lawfully exis-t ng at the effective date of the ordinance affecting it and which does not conform to all of the use, height and density regulations of the zone in which it is located (page 15-20). Non -conforming use. A use which lawfully occupied a building or land at the effective date of the ordinance affecting it that does not conform to the use provisions of the zoning district in which it is located (page 15.20). Setback The required minimum dista= from right-of-way or lot line that establishes the area within which only fencing, landscaping, driveways, parking and similar uses are permitted. Any structure including, but not limited to, decks, stairways, porches or other attachments to a building are specifically prohibited in the setback. Building eaves are permitted to extend into the setback a maximum of two feet (page 15-22). SCC 15.10.M Special setbacks — CB and I (industrial) districts. (b) Industrial district. Where Industrial (1) districts abut residential districts, a minirn� setback of ten feet shall be required. Staff note: there are no instances where Industrial districts abut residential districts. CONSISTENCY CEWAXM: Yes No N/A 1. Comprehensive Plan (1990) _ X The Comprehensive Plan promotes the need to continue to provide adequate land area for industrial development (page 30). This statement does not address setbacks. 2. Strategic Plan (1999) _ The Strategic Plan does not specify land use actions at this level of detail. FISCAL NOTE: The City of Seward will have no costs associated with this amendment to the Development Requirements. Approved by Finance Dep i" TI nt RECO ATION: Staff recommends that the Council maintain the current setbacks in the Industrial Zoning District by not approving Ordinance 2004-_, an Ordinance of the City Council of the City of Seward, Alaska, amending Seward City Code Table 15.10.220. Development Requirements, to decrease the setbacks in the Industrial Zoning District. M L= FAUn Sponsored by: PlAnnira and ZoninggQMWWqR Introduction Date: 7-2&2004 Public Raring Date: " 2004 Motion to Reconsider: S-23-2004 Enwtumat Data., Failed 8-23-04 CITY OF SEWARD, ALASKA ORDINANCE 2004-01 AN INANCE OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALAS AMENDING SEWARD CITY CODE TABLE 15.10.220. DEVELOP NT REQUIREMENTS, TO DECREASE THE SETBACKS IN THE IND ZONING DISTRICT W1MREAS, various trial Zoning District property owners and lease holders have requested decreasing the setbacks the Industrial Zoning District; and WHEREAS, following newsp publication for two weeks, written notice mailed to affected property owners and displayed in east three public places, the Planning and Zoning Commission hold a public hearing at its F 3, 2004 meeting and recommended City Council approval of a proposed Zoning Code am ent; and WHEREAS, decreasing the setbacks may a to provide for the orderly development of the Industrial Zoning District; and WHEREAS, decreasing the setbacks may still allow fire department laddcring operations; and WHEREAS, the certified minutes and public records of the P 'ng and Zoning Commission proceedings have been provided to the City Council. NOW, THEREFORE, THE CITY COUNCIL FOR THE. CI+TY OF SWARD ORDAINS that: \ Section 1. The Seward City Code is bereby amended to read as follows: Table 15,10.220 DMt*=ent Redgfrmem is hereby amended as follows (Strikethroughs = deletions and are bold, Und ffU - additions and are bold): 06 RR it! R2 W UP. OR AC HC CB I RM INS P Minimum Front Yard 20 20 20 20 20 20 10 None None 20 20 20 20 Setback (0.) (See Note 10 7, next page) Minimum Side Yard 10 S ar S S or S 10 S S S S None 40 10 10 20 Setback 00 (See Notes 4 and 7, next min.wi min.wi PaSe) th 15 th 15 tow* tow* Minimum Side Yard 10 10 10 10 10 10 10 None None 2g 10 10 20 Setback Adjacent to Street 00 (Sea Note 7, next page) Min1nun Rear Yard Setback (1) (See 10 10 10 10 10 10 10 None,, Now jp 10 1S 20 Notes S and 7, next S and 10* Wge) Section 2. The above recitals are incorporated herein by reference. Section 3. This ordinance shall take effect ten (10) days following enactment. ENACTED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, this 9th day of August 2004. THE CITY OF SEWARD, ALASKA Vanta Shafer, Mayor AYES: Dunham, Clark, Anderson NOES: Amber& Branson, Shafer, Valdatta ABSENT: None ABSTAIN: None ATTEST: ,Jau1181 or- SF;0,16000.114, k &♦ 10 1 —•- •.tip AA *tyv rk -•.. (City Seal) 0gtisaaaa� r Ind tiv of Seward, .Uaska My Comwil Minuto AMLt23,2004 Volume 36, PaxWl In response to Dunham, Shealy stated some of these buildings were classified as legal non. conforming use, which would continue for the life of the building. If destroyed, they would have to build to comply with the new code. Clark thought the Planning & Zoning Commission had conducted enough meetings and had put a lot of effort into their decision In response to Valdatta, Shealy stated a portion of Leiner Road had been surveyed.. .Anderson agreed with Claris. She had reviewed the minutes from the Planning & Zoning meetings and they had held a lot ofpublic hearings on this issue. Anderson only brought this up for reconsideration because asked by a fellow council member. She pointed out with the configuration of the town layout, snow would continue to be pushed into the streets. Motion to Reconsider Passed by 2/3 vote Yes : Branson, Valdatta, Dunham, Amberg, Shafer No: Anderson, Clark Ordinance ZON&I,,amending Seward City Code Table 15.10.220 development requirements to decrease the setbacks in the Industrial Zoning District. Motion (Andeison/Dnnham) Approve Ordinance 2004-01 (previously made on W) Branson thought it was a good idea to refer this back to P&Z to address parking and other zoning issues. Rules were suspended to allow Nina Daley to speak Unanimous Planning and Zoning Commissioner Nina Daley noted some zones were not required to provide on -site parking but did have to require parking in the Industrial Zone. Depending on the size and use of the building, the parking code specified the number of spaces you must provide, with the minimum space size being 19' x BY wide. Parking was required to be on the site plan and did not have to be in the front of a building. She noted anyplan would still have to meet the building codes. Anderson stated the city had a lot of non -conforming issues, but it was time to vote the ordinance and be done with it. Clark thought the businesses wanted 0 lot lines because it would be more valuable forre-sale, and less hassle to re -build if a portion was destroyed. Arnberg informed they could re -build thar building if it were destroyed, they would just have to build according to the current code and ordinances in place. I initially voted against this because a-1 Ciy ojSewiard Alaska Coy CouwUMinutes August 23 120UI YoJume 36, PaseI51 of the safety factor. The Fire Department could live with these changes, but they did not like it, and thought all businesses could live with the setbacks as they were. Marlon Failed Yea: Clark, Anderson, Denham No: Amberg, Valdatta, Branson, Shafer Items Postponed from Previous agenda Resolgtion 2-004-89. authonzing the city manager to pursue final environmental permits for the North Forest Acres LevewRoad Project, authorizing an increase in the contract with William J. Nelson & Associates in the amount of $24,691.45 for final desiga, and appropriating funds. Motion (AndersonlValdatta) Approve Resolution 2004-89 (previourly Horde August 9, 2004) In response to property owner comments earlier in this meeting, Shealy stated the ROW could not be acquired until after a mute was selected. If this resolution were approved, the staff would issue an RFP for a professional to pursue the acquisition of ROW for the dike, therefore the city had purposely not negotiated for ROW yet. Shealy also pointed out a request for reconsideration that was in the agenda packet would be used in the event tonight's resolution was not passed. He had met with these various agencies and reported: ➢ The Denartrnet oQatural Resources (DNR) was agreeable with what the city wanted to try. Theywere not an of the outcome but cautioned if the city forced the red alignment, it could go to an EIS based on the restrictions with other agencies. ➢ National Resource Consewatign Swdce (MRCS), our sponsoring agency, indicated the cost of the remaining portion of the project was around one million dollars. They too would support the city's efforts but noted they had already published their approval for this project in the federal register, therefore were not eager to start the project over again. A U.S. Fish A Wildlif$ Service indicated their agency would absolutely object to the loss of wetlands and force an EIS for the red line. They all along wanted the blue line and thought they were likely to get it if the City went through the EIS. ➢ National Marine Fisheries Sa-Ace (NMFS) was very outspoken on his agency's preference for the blue line and stated if the city pushed for the red line, they would ask for a denial and an EIS would be required. He felt that would be risky territory fair the city. A nnel were busy and couldn't be reached in time for this report. Their duty was to ensure other agencies respond to permit requirements and restrictions. � m � " ` ^ � WIT ' nz - � . . v x1 P,Pppppp" Sri �Y fyS '•sl ,�- fi r a y, '4� Y f ' 1.`'.ts 1' r;<f 'F"�l rti fit � >� � ,, .s;•.�' 7 i ,i �'� L3S�.{,��t � ti?� �'+t �l�L ���>- rid 1�.2:N'��,PieLayi�} ' �• lvU SAT AS �;?fi"'�i. k } -� s�jr COOK •�!„e^i'r.5!X .t:-o awn `'-? 4, `'i q.�, ...1'{. 7 4�.. 7�'L �yw tr. y ^i 4 r Cr iltr A. t7rt 1 8 F-7{..fyi ,1 r ":-- d• f .�3 7 �' i.'I YC .i �- ['r �i31 it y ae r �}v { �� PI j �5gONE Si.t,? t :i dr ,rS ii/z- t rr:{ i'ts Y Fa41. TRANS dxt.!•i'�t ; ...... . ......... /" ....... ........ Opy APPOal Pruitt Call rer Subd. Lot A I 1310rk 3, Lei I inch equals 237037037 %Ot FTont "Ot W. .'cloutawc G=v COW wof t d DOCISSI o WNW$Oth' ' n i---, - t)GIong jun* 0.12001 Lot 1, Block 3 Leirer, Subd,. 0 a� 15.05.010 PLANNING AND LAND USE REGULATIONS Chapter 15.05. Land Use Planning 16.05.010. Seward Comprehensive Plan. 15.05.015. Incorporation of additional documents. 15.05.020. Land use plan —Purpose. 15.05.025. Land use districts---Establisbed, definition&. 1d.08.010. Seward Comprehensive Plan. Frain time to time, upon recammea lation of the city council, the Kenai Peninsula Borough assembly shall by ordinance modify, adopt and implement the Seward Comprehensive Plan. The plan is a public declaration of policies reflecting community goals as expressed by citizens, and is meant to guide the actions of elected officials in setting forth the ;goals, objectives, and policies governing the f ature development within the city (Ord. 626, § 3, 1989) 15.O5.015. Incorporation of additional documents. For the purposes of Ibis title the Wowing documents as initially enacted and thereafter amended are adopted by reference as part of the Seward Comprehensive Plan: (1) Seward Airport Land Use and Development Plan (Dec. 1985). (2) Emergency Preparedness Plan (May 1986). (3) Plan of Action —Seward Fire Department (May 1986). (4) Seward Small Boat Harbor Uplands Management Plan (Nov 1983). (5) Seward Marine Industrial Center Development Plan. (Jan. IWO. (6) Seward Boat Harbor Master Plan (March 1993). (7) Municipal Lands Management Plan (May 1995). (Ord. 626, $ 3, 1989; Ord. 95.17, $ 2) 15.05.020. Land use platy —Purpose. A part of the comprehensive plan is the development of a land use classification system on which to base zoning and to guide the land use regulation system. Such a classification system should provide a balanced, compatible land use mix, in order to separate incompatible uses and minimize conflict between land uses. (Ord. 626, $ 3, 1989) 16A6.0Zb. Land use districts --Established, definitions. (a) Established. The- city is hereby divided into land use districts which shall be bounded and defined as shown on the official land use map. This official map, together with all ---� explanatory matter thereon, as exhibited at the time of public hearing, is hereby adopted by reference and declared to be a part of this chapter. Bupplumt Na 01-1 1li-8 PLANNING AND LAND USE REGULATIONS 15.05.025 (b) Definitions —Purpose. (1) Rural residential district (RR). Intended to provide for stable, quiet, low density (one or two dwelling units per acre) detached single-family residential development, free franc 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) Singk-family residential district (RI). Intended to provide for stable and quiet low to medium density (one to five dwelling units per acre) detached, single-family residen- tial development, free from other uses except those which are both compatible and convenient to residents of such a district. (3) Tk*-family residential district M. 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) Multi family residential - district (R3). Intended to provide opportunities for a higher density residential setting with a mix of housing units which are predominately multifamily units close to concentrations of public services, employment and/or recreation. This district may provide a transition between more intensive districts and lower density residential areas if sufficient screening and design features are provided to protect multifamily residences f Y= undesirable effects. (5) Urban residential district (UR). Intended to allow an area of higher density mixed residential uses from detached single-family housing to multi -family apartments in conjunction with compatible low impact professional office uses in the area surround- ing the downtown business district. (6) Office/residential district (OR). Intended -to provide for medium density residential, commercial and office development designed to act as a transition zone between the higb density central business district and surrounding medium -high density residen- tial districts. (7) Harbor commercial district WC). Provides an area for water -dependent or water - related uses with particular emphasis on transportation, tourist, recreational, com- mercial or industrial enterprises which derive major economic or social benefit from a harbor location. (8) Auto commercial dutnd (AC). Intended to provide areas to accommodate highway - oriented commercial activities such as offices, certain institutional uses, and limited personal services and retail uses requiring substantial outdoor activity, traffic and parkinm, and which also serve the offices and nearby residential areas, and which do not materially detract from nearby residential areas. (9) Central business district (C8D). Provides far ' an area of convenient, attractive, concentrated commercial development primarily intended for retail, financial, enter- tainment and professional services occurring within enclosed structures. Regulations supplement FTa 01-1 15.05.025 PLANNING AND LAND USE REGULATIONS applying to this zone are designed to encourage a compact group of businesses of the type which are mutually beneficial and located close enough together to encourage walk-in trade. (10) Industrial district (10. Established as a district in which the principal use of land is for business, manufacturing, processing, fabricating, repair, assembly, storage, wholesal- ing and distributing operations, which may create some nuisance and which are not --� properly associated nor compatible with residential land uses. It is intended to provide environmental safeguards for people employed in or visiting the district. Some visual amenity is expected in this district to make it compatible with adjoining residential or business districts. (11) Institutional district (I1VS). Public and private educational, administrative, govern meat and health care uses, including public land reserve for future public develop- mant. The development standards are intended to set a high standard to assure that the activities provide visual* amenity to the surrounding area. (12) Parks district (P). Is intended to designate park, recreation and commemorative property owned by the city, state or federal governments for recreation and other compatible public purposes. (13) Resource management district (RM). Lands which 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 consideration. (Ord. 626, ¢ S, 1989: Ord. 649, 12, 1991) Z-----1-7 supplement Na 01-1 15.8.2 / O 2 15.10.140 PLANNING AND LAND USE REGULATIONS (2) A cafeteria -type operation where food and beverages generally are consumed within the restaurant building. Restaurant, fast-food. An establishment whose principal business is the sale of quickly prepared ready to eat food and/or beverages for consumption within the restaurant building, within a motor vehicle parked on the premises, or of the premises as carry -out orders, and whose principal method of operation includes the following characteristics: orders are generally taken at a main counter or drive -up window and food and/or beverages are usually served in disposable wrapping or containers. This includes drive-in and carry -out restaurants. Right-of-way. An area or strip of public land which incorporates or is intended to be occupied by, but not limited to, streets, alleys, sidewalks, bike paths, curbs, gutters, landscaping and/or public utilities. Salvage yard (auto wrecking, scrap, junk). Any area used for the storage, keeping or abandonment of junk or waste material, including scrap metal or other scrap materials, or for the dismantling, demolition or abandonment of automobiles, machinery, other vehicles or parts thereof. School. Any public, religious or non-profit facility providing a general curriculum of academic or vocational instruction serving any or all grades between kindergarten and 12th grade. School, commenrial. A facility providing commercial instruction in such activities as music, dance, arts, crafts and sailing. School, adult uocational. A facility providing a general curriculum of adult academic or vocational instruction. Setback. The required minimum distance from right-of-way or lot line that establishes the area within which only fencing, landscaping, driveways, parking and similar uses are permitted. Any structure including, but not limited .to, decks, stairways, porches or other attachments to a building are specifically prohibited in the setback. Building eaves are permitted to extend into the setback a maximum of two feet. Shopping center. A single complex which provides a combination of retail establishments designed in such a manner as to provide convenience for shoppers with common parking facilities. Includes mall. Solid waste facility. A disposal site employing an engineering method for disposing of solid wastes in a manner that minimizes environmental hazards. Includes landSll, compactor, transfer, etc. Storage, container. An accessory storage ,use consisting of containers such as semi -tractor vans, shipping containers and conex containers originally designed to transport goods and materials via highway, rail, air or sea, which are parked or placed an a parcel of land and used for covered storage provided that all wheel assemblies have been removed; the unit is placed on non -rot susceptible blocking or foundation; the unit is roofed, skirted or sided to match the Supplement No. 05-1 15-22 / �3 PLANNING AND LAND USE REGULATIONS 15.10.140 primary building on the property; and the unit is located outside any setbacks. Railroad boa cars are excluded except in the Industrial Zone. There are no grandfathered uses. (See accessory usetbuilding, building, and structure.) Storage, outdoor. The commercial keeping, in an unroofed area and usually enclosed by a fence, of any goods, junk, material, merchandise or vehicles in the same place for an extended period of time. In the harbor commercial area, the use is limited to the storage of boats only. Storage, self service. A building or group of buildings consisting of individual, small, self-contained units that are leased or owned for storage of business and household goods or contractors' supplies. Includes mini warehouses. Storage, warehouse and distribution. A building used primarily for the storage and distribution of goods, products, materials, supplies and equipment, but excluding bulk storage of materials that are flammable or explosive or that create hazardous or commonly recognized offensive conditions. Street. A dedicated public way which affords the principal means of access to abutting property, such as an avenue, place, drive, boulevard, highway or other similar public thoroughfare, except an alley as defined herein. Structure. Anything constructed or erected on the ground or attached to something having location on the ground, including, but not limited to, buildings, towers, and sheds. Fences, retraining walls less than three feet in height signs and similar improvements of a minor character are excluded. Surface, durable. Means brick, flag -type stone, gravel, cement, or asphalt. Temporary structure. A structure without any foundation or footings and that is removed when the designated time period, activity or use for which the temporary structure was erected has ceased. Duiler. A structure standing on wheels, towed or hauled by another vehicle and used for carrying materials, goods or objects or as a temporary office or business. T} ansient merchant. Any person, partnership, firm or corporation, whether a resident of the city or not, who engages in a temporary business, within a period not exceeding' 150 consecutive days m a calendar year, of selling and delivering goods and/or services, wares and merchandise for profit or non-profit within the city by operating on a door-to-door, street corner or similar basis; or from no fixed location or office; or from a location out-of-doors or in quarters that are easily moveable, such as a temporary leased area or space, motor vehicle, trailer or tent. Includes peddlers, solicitors, itinerant merchants and vendors. Does not include vehicles for hire. Utility, public facility. An installation owned by an agency under public franchise or ownership, or under certificate of convenience and necessity, providing the public with electricity, gas, beat, steam, communication, water, sewage collection or other similar service. Supplement No. W1 15-25 202 AREA. See Section 2102.1. Bedded. See Section 2IO2.L Gross cross sectional. See Section 2102.1. Net cross sectional. See Section 2102.1. AREA, BUILDING. See Section 502. L AREA OF REFUGE. See Section 1102.1. AREAWAY. A subsurface space adjacent to a building open at the top or protected at the top by a grating or guard. ATRIUM. See Section 404.1.1. ATTACHMENT. See Section 1913.2.2. ATTIC. The space between the ceiling beams of the top story and the roof rafters. [F] AUDIBLE ALARM NOTIFICATION APPLIANCE. See Section 902.1. [F] AUTOMATIC. See Section 902.1. [F] AUTOMATIC FIRE —EXTINGUISHING SYSTEM. See Section 902.1. [F] AUTOMATIC SPRINKLER SYSTEM. See Section 902.1. [F] AVERAGE AMBIENT SOUND LEVEL. See Section 902.1 AWNING. An architectural projection that provides weather protection, identity or decoration and is wholly supported by the building to which it is attached. An awning is comprised of a lightweight, rigid skeleton structure over which a cover- ing is attached. BACKING. See Section 1402.1. BALCONY, EXTERIOR. See Section 1602.1. [F] BARRICADE. See Section 307.2. Artificial barricade. See Section 307.2. Natural barricade. See Section 307.2. BARRIER See Section 3302. BASE SHEAR. See Section 1602.1. DERNMONS BOUNDARY ELEMENT. See Section 2302.1. BOUNDARY MEMBERS. See Section 1602.1. BRACED WALL LINE. See Section 2302.1. BRACED WALL PANEL. See Section 2302.1. BRICK. See Section 2102.1. Calcium silicate (Sand lime brick). See Section 2102.1, Clay or shale. See Section 2102.1. Concrete. See Section 2102.L. BRITTLE STEEL ELEMENT. See Section 1913.2.2. BUILDING. Any structure .used or intended for supporting or sheltering any use or occupancy. BUILDING, ENCLOSED. See Section 1609.2. BUILDING LINE. The line established by law, beyond which a building shall not extend, except as specifically pro- vided bylaw. ' BUILDING, LOW-RISE. See Section 1609.2. BUILDING OFFICIAL. The officer or other designated authority charged with the administration and enforcement of this code, or a duly authorized representative. BUILDING, OPEN. See Section 1609.2. BUILDING, PARTIALLY ENCLOSED. See Section 1609.2 BUILDING, SIMPLE DIAPHRAGM. See Section 1609.2. BUII.T-UP ROOF COVERING. See Section 1502.1. BUTTRESS. See Section 2102.1. CABLE -RESTRAINED, AIR SUPPORTED STRUC- TURE. See Section 3101.2. CANOPY. An architectural projection that provides weathe protection, identity or decoration and is supported by the building to which it is attached and at the outer end by not less than one stanchion. A canopy is comprised of a rigid / structure over which a covering is attached. CANTILEVERED COLUMN SYSTEM. See Section` BASEMEN!: That portion of a building that is partly or 1602.1. completely below grade (see "Story Above Grade Plane' and Sections 502.1 and 1612.2). BID JOINT. See Section 2102.1. BLEACHERS. See Section 1002.1. BOARDING HOUSE. See Section 310.2. [F] BOILING POINT. See Section 307.2. BOND BEAM. See Section 2102.1. BOND REINFORCING. See Section 2102.1 [F] CARBON DIOXIDE EXTINGUISHING SYSTEMS. See Section 902.1. CAST STONE. See Section 2102.1. [F] CEILING LIMIT. See Section 902.1. CEILING RADIATION DAMPER See Section 702.1. CELL. See Section 2102.1. CEMENT PLASTER. See Section 2502. 1 �/ CEMENTITIOUS MATERIALS. See Section 1902.1. UlobAUllouSCplamS.Com I 1 Ulv%ij vLvaarsa i A. uav A w . GIZF-Obal houseplans.com Log In / Register J My Account Featured House Plan View House Plan Quick Search Plan #: a Square Footage (sq. ft.): 0 0 Number of Stories: ❑ 1 ❑ 2 ❑ Mufti -Level Number of Bedrooms: ❑ 1 ❑ 2 ❑ 3 ❑a❑s+ Number of Baths: ❑ 1 ❑ I Y,2 ❑ 2Y.-3 ❑ 3%+ Number of Garage Stalls: ❑0❑1(f2❑3+ Plan Type: Any ADVANCED SEARCH dick here • Browse By Type/Styie • 1 Story + Walk -Out Blueprints • 2 Story + Walk -Out Blueprints • Garage Plans • Garage Plans w/Apartments • Hillside House Plans • ICF/Concrete Block Plans • in -Low Sultes • Narrow House Plans • Rea"thonal Floor Plans • Smat House Plans • Wheelchair Accessible Plans • Adobe Style Premium House Plans from the Nation's leading Archlteats and Desig 'Home My Plans Order Into Contact Advanced Searctn,. Sitemap I About i FAQ I F J ARCHITECTURAL GLOSSARY Features .__._...._._.�...._........._...,.--„_,..___....,,.,...».._._».. , ...........__,.� ,_......__.,......._.. New House Plans DefAnitions & Common Terms 'terms used as feature keywords in Advanced Search A-B-C-0-E-F-G-H-I-J-K-L-M-N-O-P-0-R-S-T-U-V-W- X-Y-Z ADOBE --unfired brick dried in the sun, commonly used for building In the American Southwest, Spain, and Latin America. Usually covered with stucco In home binding. ARCH —the curved or pointed top an a door or open entryway. Arches coma In many different shapes and styles. ART NOUVEAU --a style of architecture and Interior decorating of the late 1 Sins and marked by the overly ornate use of undulating imagery, such as warms, flames, flower stalks, and flowing hair. ART DECO-,e popular design style of the 1920s and 1930s characterized by bolo outlines, and geometric and zigzag forms. ATRIUM --an inner courtyard of a house or building that is open to the sky or covered by a skylight. BALCONY —platform projecting from a wall, enclosed by a railing or balustrade, supported on bradkets or cantilevered outward. BALUSTER --short post or pillar in a aeries that supports a rall, thus forming a balustrade. May be curved or straight. BARREL TILES —rounded day roof tiles most often used on Spanish -style houses. Usually red but evalable in many cobra. BAY, BOW, AND ORIEL- WINDOWS --windows that project out from the front or side of a house. Orlel windows generally project from an upper story, supported by a bracket. Say windows are angled projections that The up from the ground on the first floor. Bow windows are rounded projections, often formed of the window glass Itseff. BEAD MOLDING —small, cylindrical molding erviched with ornaments resembling a string of beads. 'BONUS ROOM—retums house plans with any space that can be finished after construction of a house is completed. Most often located over a garage or in an unfinished daylight basement, and consequently, not included In the total square footage listed on the house plan. BRACKET —small supporting piece of wood or stone, designed to bear a projected weight, such as a window. Often In the shape of scrolls or other decorative forms. 'BREEZEWAY —returns house plans with a covered portion of open space that connects a detached garage to the main house. This can be as narrow as a hallway or be wide enough to create a comfortable outdoor living space. 'BUTLER'S PANTRY--ietume house plans with a space that Is located between the kitchen and dining room, and features cabinets and, typically, a serving area that serves as a staging area to the dining room. Amenities, such as a wine Price Guarantee My Saved Searche: My Favorite Plans For Home Builders Areas of Intem Find a Builder Tips and Article Architectural To Satisfied Custor j Publish your hon gbbalhouseplam hap.'/IWWW.g2vbalhouseplans.com/glossaiy.aV /D 6=007 L71001111 1OUS plints.coin I tU&%,r t 11541 V rui , VA,%jo jt1a--1 • Beach home plans refrigerator, warming drawers, china storage, are often Included. • Bungalow House Plana CANOPY —projection or hood over a door, window, niche, eta] • Cape Cod House Plans • Coastal home plans CANTILEVER --horizontal projection from a building, such as a step, balcony, • Colonial house plans beam, or canopy, that Is without external bracing and appears to be self- • Contemporary house plans supporting. • Cottage house plans CAPITAL —head or crowning feature of a column. • Country house plans *CARPORT —returns house plans with a garage without walls. A very eoonomkai • Craftsman home plans way to protect you and your car from the elements. • Early American house plans • European home plans CASEMENT WINDOW --metal or wooden window that opens outward or inward. • Farm house plans CASTELLATED --decorated with battlements (a parapet with alternating • Florida Cracker indentstlons and raised portions); also called creneNation. Buildings with battlements are usually brick or stone. • French Country plans • Georgian home plans CERAMIC TILE —any of a wide range of sturdy floor and wall Ike made from • Greek Revival home plans fired clay and set with grout. May be glazed or unglazed. Colors and finishes very. May be used indoors or out. • Italian Cause plans • Log home plans CHAIR -RAIL MOLDING --wooden molding pieced along the lower part of the wall to prevent chairs, when pushed back, from damaging the wall. Also used as • Luxury home plans ry decoration. • Mediterranean home plans • New England Colonial CLAPBOARD—overtapping horizontal boards that cover the tlmber-framed wall of a house. • Northwest house plans • Plantation house plans CLERESTORY WINDOW —window (usually narrow) placed In the upper walls of • Prairie style home plans a room, usually at an angle, to provide extra fight. • Ranch house plans CONCRETE —cement mixed with coarse and fine eggregate (pebbles, crushed • Santa Fe house plans stone, brick), sand and water in specific proportions. Available In three types: Precast, reinforced, and prestressed. • Southern Colonial house plans • Southem home plans CORINTHIAN COLUMN --in classical architecture, a column decorated at the top • Southwest Contemporary with a mixed bag of curlicuss, scrolls, and other lavish ornamentation. • Southwestem house plans CORNICE —airy projecting ornamental molding that finishes or crowns the top of • Spanish style home plans a building, wall, arch, etc. • Sunbelt home plans *COVERED FRONT PORCH —returns house plans with porches big enough to • Traditional house plans accommodate two or more chairs. (Porches that are covered just enough to • Tudor house plans temporarily pro you from the elements have been excluded from this definition.) • Versatile • Victorian home plans "COURTYARD --Mums house plans with a broad expanse in the front or rear. Often the focal point of the home and adomed with features lice a fountain. • Waterfront home plans COVE MOLDING —large concave molding produced by the sloped or arched junction of a wad and ceiling. Popular accent for dramatic living rooms. 'COVERED REAR PORCH --returns house plans with a space similer to a covered front porch but attached to the rear of the house. Includes house plans with a covered back porch large enough to provide ample escape from the elements, plus a protected spot for your barbecue. CUPOLA --dome, especially a small dome on a circular or polygonal base crowning a roof or turret. Usually only decorative in modem homes. (Older cupolas, typically, are accessible by stairs.) 'DAYLIGHT BASEMENT —returns house plans with a full or partial basement well suited for sloping lots. Can either be partially above ground, allowing larger windows exposed to daylight, or a walk -out basement that, typically, has a door leading to a walkway or lower patio. 'DEN/OFFICE/COMPUTER--returns house plans with a private room that an hrip://Www.globalhousq)law.C)m/glossmy.asp A( / 12 wobadWlousepians.com I A Kl.I'i.t lrl.l unni. vi.vaaru-� i be closed off from household traffic or serve as the location of the family computer. Also returns house plans for a computer alcove for children that is becoming Increasingly more popular. 'DETACHED GARAGE --Mums house plans with a garage not connected to the house, regardless of its location. Often connected to the house with an open breezeway - DOME ---arched roof or calling of a uniform curvature erected on a circular or square base. Domes can be segmented, semicircular, pointed, or bulbous. Often deooreted with stained or painted glass. Adds light, color, and drama to a room or faver• DORIC COLUMN —Greek -style column with only a simple decoration around the top, usually a smooth or slightly rounded band of wood, stone, or plaster. DORMER WINDOW ---window placed vertically In a sloping roof that has a tiny woof of its own. Most often seen in second -floor bedrooms. EAVES--E under part of a sloping roof that hangs over a wa ll.. <--- - ELL —single -story lean-to wing of a building that usually contains a kitchen. Added to many houses with wooden frameworks In New England. EMPTY-NESTER--retums house plans for homes that are focused on those of us who's children have grown and moved out. AN of the bedrooms are no longer needed or, at the least, ready access to them. So more attention is given to more elegant master suites, main floor dens, centrally located great rooms, etc. Some returned house plans have all secondary bedrooms in a daylight basement for visiting family members. 'EXERCISE ROOM --Mums house plans with a space for more" equipment. FACING --covering applied to the outer surface of a bulding. 'FAMILY ROOM--feturns house plans with a casual living space, usually adjacent to the kitchen and nook where most family activities take place. Most often located to the rear of the home with access to the back yard. FANUGHT--window, often semicircular, with radiating glazing bars suggesting a fan that Is placed over a door. FASCIA --horizontal piece (such as a board) covering the joint between the top of a wall and the projecting eaves; also called fascia board. FESTOON —carved or painted ornament In the form of a garland of fruit and flowers tied with ribbons and suspended at both ends in a loop; also called a swag. FIELDSTONE —rough, Irregularly shaped places of rock that can be used to cover the surface of a building, make a walkway. Ilene a garden bed, etc. FINIAL —formal ornament at the top of a canopy, gable, pinnacle, etc., usually in the general shape of a flour-de-lis. FLUTING —shallow, concave grooves running vertically on the shaft of a column, Pilaster, or other surface. FOYER—ontrance half of a home. FRENCH DOOR —tall casement window that reaches to the floor and opens like a door. A popular accent that brings more light Into a house. `FRIEND'S ENTRY —Mums house plans with a casual entrance usually boated on the side and close to the garage entrance. Often considered a "mud room" wfth laundry facfllties lnduded. Can also be a small side or rear entrance for guests to use without we" around to the front door. It is most often seen on house plans with a side entry garage. hup://www.globalhouseplans.com/glossary.asp /D / 6=007 usnopy toIIIIM13BJ - Wmpeaw, we L= wicyciupruia Canopy (building) From Wikipedia, the free encyclopedia A canopy is an overhead roof or structure that provides shade or shelter. A canopy can also be a tent, generally without a floor. A canopy (building) is an architectural projection that provides weather protection, identity or decoration, and is supported by the building to which it is attached and a ground mounting, by not less than two stanchions (upright support posts). A canopy is comprised of a structure over which a fabric or metal covering is attached. Canopies can also stand alone, such as a fabric covered gazebo or cabana. Fabric canopies can meet various design needs. Many modern fabrics are long-lasting, bright, easily cleaned, strong and flame-retardant. Modern frame materials offer high strength -to -weight ratios and corrosion resistance. The proper combination of these properties can result in safe, strong, economical and attractive products. The word came from Ancient G=k wvftmov = "cover to keep insects off", from V&mv = "cone - face", which is a bahuvrihi compound meaning "mosquito". The first �o' changing into W may be due to influence from the place name Canopus, Egypt thought of as a place of luxuries. See also ■ Chuppah Retrieved from "hup://en.wWpedi&orgtwil&Cmoff "/o28building*io29" Categories: Architecture stubs I Roofs ■ This page was last modified 02:38, 10 April 2007. ■ All text is available under the tears of the GNU Free Documentation License. (See Copyrights for details.) WibpediaaD is a registered trademark of the Wildniedia Foundation, Inc., a US -registered 501(cx3) tax-deductible nonprofit charity. http://emwfldpedia.org/wiki/Canopy_�/�2gbuilding/�29 ! /� 6=007 Eaves - WuapeWU, 110 LM ULWYUIVyCuut ...ate .... . Eaves From Wflapedia, the free encyclopedia (Redirected from Eave) An save is the edge of a roof. Eaves usually project beyond the side of the building generally to provide weather protection. Some buildings, such as t^rfltsum bungalows, have very wide eaves with decorative brackets. The word eave can also refer to the part of a sloping roof that overhangs the wall or the soffit, the lower edge of the part of a roof that overhangs a wall. See also ■ Chhaya ■ Rainhead ■ Gargoyle Retrieved from "http://en.wikipedia.org/wiki/Eaves" Categories: Architecture stubs I Roofs ■ This page was last modified 20:48,17 May 2007. j ■ All text is available under the terms of the GNU Free Documentation License. (See Copyrights for details.) Wikipedia® is a registered trademark of the VVikimedia Foundation, Inc., a US -registered 501(cx3) tax-deductible nonprofit charity. http J/mwfdpedia.orgt ' ' ve , 6=047 eaves - definition of eaves by the Free Online lhetionary, Iheswo and rncyctopeaia. rage ,Y or z _� ._. 7REFR EARY 576,126,689 people served. o. ThaFreoOl fenery r_; Google eaves Word 1 Arkle Starts with , Ends with r, Text TExT'6'°IPQV:sA /,j&,Pj* Add ThaFreaorctlonary to your Google toolbar. Sesrdh ? subscri n: ? • • Medical + l ayal • manclal • Idfomis t,olumbia is Wiktpadia a rite inson Dictionary!, Computing dictionsry dictionary! dictionary; Acronyms ancyclopedia: encyclopedia: ?' encyclopedia thesaurus; dictionary; GaV@S Also found In: VV*ip.Qdip laierlockO Roofing System i Never m-roof again. 100% Financing OAC. Alaskas$estRoof.com Roof Replacement/Repair 30 years local (Alaska) experience VAw doing the right thing meters www.intogrityroofing.biz Elastic Rubber Roof Coat Armes Elasto Barrier Rubber Roof Coating slops leaks pamtarw * www.arnesresearch.com eaves `(&Z pl.n. The projecting overhang at the lower edge of a roof. Ads by Google [Middle English eves, from Old English efes; see upo In Indo-European roots.] The Amaiaan Maiapse MWOMY of" English Language, Fours► Man copy OM 0¢000 by MM comam. upd@W In 21011. R ilatod by All d" reserved. Thesaurus Legend: Isynortyms jRatataa wordsjAnmrryrrn Noun 1. eaves - the oveftng at the lower edge of a roof overhang - projection that exknds beyond or hangs over something eise ssro roof - a protective covering that covers or forms the lop of a building i Low Slope imal.Roofng Ads by Google Photos. Into. Case Studies. Specs a Access to Experts. Th eMetallnitiative. com Portland Roofing Commercial 3 Residential Roofing Repairs s Installs. Cal Us Todayl www.vaughnroofingeontracbnginc. net Seamless SPF Roof Systems Apply Leak Proof Spray to Your Roof Serving North Cam* Florida www.customroofing.com 0.04 sec. Page We i a; Printer frienc[!y Cite l link i 0 Email Feedback Mentioned in ? , = References in classic literature ? antefix Eaves molding Apus apus eaves spout Arris gutter Eaves swallow chalet eaves trough Cliff swallow gutter Delichon urbical Jack ratter drippage Span roof Eavedrop $vbtegulaneous .Eaves board trough eaves Catch Moro resutW }F The bafore-mentioned Tom Eaves (who has no part In this history, except that he knew all the great folks In London, and the stories and mysletiess of each family) had further information regarding my Lady Sleyne, which may or may not be true. Vanity Fairby Thsckeray, Alliam Makepeace View in context The fact that Bersoornian architecture, Is extremely omata mmle tw feat much simpler than I had anticipated, since I found omarnalontsl ledges and projectorhs which Gairly formed a ported ladder for me all the way to the ewes of the building. l : A-Pdvoess ofWS by Oyrroughs, Edger Rine View In context Architechme Glossary - What is an cave? rage i of i Ab�utcOir1: Architecture ...... ... ................. . _...... What IS an eave? 'q- An save Is the edge of a roof. Eaves usually project beyond the side of the bulldhV. Some buildings, such as Craftsman Bungalows, have very wide eaves Wth.decorWye brackets. Architecture Glossary Mum oft Tram ArCTocirry aom fuMar�r b M NwMMIW Nun WAN ..� � 6Ubscribe Flom Jeckie Grayer, Your Guldt b Ambileuure. FREE NWWdd r. sign Up Now' OURULMY IUVZfPI UIUUIL - YY ImI C its, mr. ucc cuty vavywia Statutory interpretation From W&ipedia, the fire= encyclopedia Statutory interpretation is the process of interpreting and applying legislation. Some amount of interpretation is always necessary when a case involves a statute. Sometimes the words of a statute have a plain and straightforward meaning. But in most cases, there is some ambiguity or vagueness in the words of the statute that must be resolved by the judge. To find the meanings of statutes, judges use various tools and methods of statutory interpretation, including traditional canons of statutory interpretation, legislative history, and purpose. In common law jurisdictions, the judiciary may apply rules of statutory interpretation to legislation enacted by the legislature, or to delegated legislation such as administrative agency regulations. Contents ■ 1 General principles . 1.1 Meaning ■ 1.2 Conflicts between sources of law ■ 1.3 Internal and external consistency j ■ 2 Canons of statutory interpretation ■ 2.1 Textual canons } ■ 2.2 Substantive canons ■ 2.3 Deference canons ■ 2.4 Criticism I ■ 3 Philosophies of statutory interpretation ■ 4 Related reading ■ S See also General principles Meaning The judiciary interprets how legislation should apply in a particular case as no legislation unambiguously and specifically addresses all matters. Legislation may contain uncertainties for a variety of reasons: . ■ Words are imperfect symbols to communicate intent. They are ambiguous and change in meaning over time. ■ Unforeseen situations are inevitable, and new technologies and cultures make application of existing laws difficult. ■ Uncertainties may be added to the statute in the course of enactment, such as the need for compromise or catering to special interest groups. Therefore, the court must try to determine how a statute should be enforced. This requires statutory construction. It is a tenet of statutory construction that the legislature is supreme (assuming constitutionality) when creating law and that the court is merely an interpreter of the law. In practice, by http://en.wikipedia.org/wiki/Statutory_interpretadon /, , / 6/"2/2007 bTann()ry 1n=Prt:LUUVl1 - W LkIPCAU14 UM LIM wivyvtvrx.wa - -o- - -- - performing the construction the court can make sweeping changes in the fiuletion of the law. Conflicts between sources of law Where legislation and case law are in conflict, there is a presumption that legislation takes precedence insofar as there is any inconsistency. In the United Kingdom this principle is known as Parliamentary Sovereignty. In Australia and in the United States, the courts have consistently stated that the text of the statute is used first, and it is read as it is written, using the ordinary meaning of the words of the statute. ■ "[I]n interpreting a statute a court should always turn to one cardinal canon before all others.... [C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there." Connecticut Nat? Bank v. Germain, 112 S. Ct. 1146,1149 (1992). Indeed, "[whhen the words of a statute are unambiguous, then, this first canon is also the last: 'judicial inquiry is complete.'" ■ "A fundamental rule of statutory construction requires that every part of a statute be presumed to have some effect, and not be treated as meaningless unless absolutely necessary." Raven Coal Corp. v Absher,153 Va. 332,149 S.E. 541 (1929). ■ "In assessing statutory language, unless words have acquired a peculiar meaning, by virtue of statutory definition or judicial construction, they are to be construed in accordance with their common usage." Muller v BP Exploration (Alaska) Inc., 923 P.2d 793, 787-98 (,Alaska 1996); Federal jurisdictions may presume that either federal or local government authority prevails in the absence of a defined rule. In Canada, for example, there is a presumption that the federal government has paramount authority in areas where the Constitution is silent and the legislative terrain has not been previously occupied by either the federal government or a province. This contrasts with other federal jurisdictions, notably the United States and Australia, where it is presumed that if legislation is not enacted pursuant to a specific provision of the federal Constitution, the states will have authority over the relevant matter in their respective jurisdictions. Internal and external consistency It is presumed that a statute will be interpreted so as to be internally consistent. A particular section of the statute shall not be divorced from the rest of the act. The sui generis rule applies to resolve the problem of giving meaning to groups of words where one of the words is ambiguous or inherently unclear. For example, in Criminal Law, a statute might require a mens rea element of "unlawfully and maliciously". Whereas the word "maliciously" is well -understood, the word "unlawfully" in this context is less clear. Hence, it must be given a meaning of the "same kind" as the word of established meaning. This is particularly the case when the two or more words are conjoined, i.e., linked by the word "and", as opposed to placed in a disjunctive relationship, i.e., linked by the word "or", when the interpretation of the two or more words might be different depending on the circumstances (sometimes courts have to attribute a conjunctive intention to the legislature even though the list is disjunctive because, otherwise, no sensible overall interpretation can be ascribed). A statute shall not be interpreted so as to be inconsistent with other statutes. Where there is an inconsistency, the judiciary will attempt to provide a harmonious interpretation. Canons of statutory interpretation hq://en.wWpe&a.org/wiki/Statitory_intetpretadon �/ ��' 6rM007 JUiLULUAY U"Ar'IFICLUUUIL - In AALLIX Aa, ua. alw Canons give common sense guidance to courts in interpreting the meaning of statutes. Most canons emerge from the common law process through the choices of judges. Proponents of the use of canons argue that the canons constrain judges and limit the ability of the courts to legislate from the bench. Critics argue that a judge always has a choice between competing canons that lead to different results, so judicial discretion is only hidden through the use of canons, not reduced. Textual canons Textual canons are rules of thumb for understanding the words of the text. Some of the canons are still known by their traditional Latin names. Ejusdem generic (Of the same kinds, class, or nature) Where general words follow an enumeration of specific items, the general words are read as �_ applying to other items akin to those specifically enumerated. Expressio unius est exclusio alterius (The express mention of one thing excludes all others) Items not on the list are assumed not to be covered by the statute. However, sometimes a list in a statute is illustrative, not exclusionary. This is usually indicated by a word such as "includes." In pari materia (Upon the same matter or subject) When a statute is ambiguous, its meaning may be determined in light of other statutes on the same subject matter. Nosckw a sociis (A word is known by the company it keeps) When a word is ambiguous, its meaning may be determined by reference to the rest of the statute. Reddendo singuld singulis (Refers only to the last) When a list of words has a modifiying phrase at the end, the phrase refers only to the last, e.g., firemen, policemen, and doctors in a hospital. Plain Meaning The legislature intended to use ordinary English words in their ordinary senses. Substantive canons Substantive canons instruct the court to favor interpretations that promote certain values or policy results. "Charming Betsy" Canon National statute must be consbued so as not to conflict with international law. Interpretation in Light of Fundamental Values Statute does not violate fundamental societal values. (Holy Trinity Church) Rule of Lenity In construing an ambiguous criminal statute, the court should resolve the ambiguity in favor of the defendant http://emwikipe&&org/vh'ici/Sta#utory_interpreWon 11b 6)=007 aUUUWry iuWylr.usuvu - TV LLIPGuta, uic 11VL bm.'yvl1,k^A"a - -a- . -- - Deference canons Deference canons instruct the court to defer to the interpretation of another institution, such as an administrative agency or Congress. These canons reflect an understanding that the judiciary is not the only branch of government entrusted with constitutional responsibility. Deference to Administrative Interpretations (US Chevron deference) If the statute grants power to an administrative agency and is ambiguous with respect to the specific issue, the courts will defer to the agency's reasonable interpretation of the statute. This rule of deference was formulated in the US by the United States Supreme Court in Chevron v Natural Resources Defense Council, 467 U.S. 837 (1984). Avoidance Canon (Canon of Constitutional Avoidance) If a statute is susceptible to more than one reasonable construction, courts should choose an interpretation that avoids raising constitutional problems. In the US, this canon has grown stronger in recent history. The traditional avoidance canon required the court to choose a different interpretation only when one interpretation was actually unconstitutional. The modern avoidance canon tells the court to choose a different interpretation when another interpretation merely raises constitutional doubts. Avoiding Absurdity The legislature did not intend an absurd or manifestly unjust result. Clear Statement Rule When a statute may be interpreted to abridge long -held rights of individuals or states, or make a large policy change, courts will not interpret the statute to make the change unless the legislature clearly stated it. This rule is based on the assumption that the legislature would not make major changes in a vague or unclear way. Last in Time When two statutes conflict, the one enacted last prevails. Criticism Critics of the use of canons argue that canons impute some sort of "omniscience" to the legislator, suggesting that it is aware of the canons when constricting the laws. In addition, it is argued that the canons give a credence to judges who want to construct the law a certain way, imparting a false sense of justification to their otherwise arbitrgry process. In a classic article, Karl Llewellyn argued that every canon had a "counter -canon" that would lead to the opposite inerpretation of the statute. However, it could be argued that the fundamental nature of language is to blame for the problem of "for every canon, a counter." Interpreting whether a statute applies to a given set of facts often boils down to analyzing whether a single word or short phrase covers some element of the factual situation before the judge. The expansiveness of the English language necessarily means that there will often be good (or equally unconvincing) arguments for two competing interpretations. A judge is then forced to resort to documentation of legislative intent, which may also be unhelpful, and then finally to his or her own judgment of what outcome is ultimately fair and logical under the totality of the circumstances. Canons of statutory construction give judges the ability to decide questions of statutory interpretation that httpJ/en.wWpedia,org/wil i/SbAUtory_*terpretation / / 7 6=007 NmtuiOry wrerpm=on - wlxupecua, Lnv u= vwyvat)pm $ a a6bw .' va necessarily rely on an element of judicial discretion. Philosophies of statutory interpretation Over time, various methods of statutory construction have fallen in and out of favor. Some of the better known rules of construction methods am: s The Golden Wile ■ The Literal rule ■ The Mischief rule ■ The Purposive approach Related reading ■ The multi -volume Sutherland Statutory Construction is the authoritative text on the rules of statutory construction. ■ Karr Llewellyn, Remarks on the Theory of Appellate Decisions and the Rules or Canons About How Statutes Are to Be Construed 3 Yand L. Rev. 395 (1950). . United States ofAmerica v. William C. Scrimgeour 636 F.2d 1019 (5th Cir. 1981) discusses most aspects of statutory construction. ■ Brudney & Ditslear, Canons of Construction and the Elusive Quest for Neutral Reasoning (http://Iawwob.use.edu/cslp/papeWcsAp-wp-028.pdf) ■ Sinclair, Michael, "Lleweliyn's Dueling Canons, One to Seven: A Critique" (http://ssrn.comlabstra 780424). New York Law School Law Review, Vol. 51, Fall 2006 Available at SSRN: http://ssrn.com/absftact-780424 ■ Statutory Construction Blog at http://www.lawprofessors.Vpepad.com/gatutory/ ■ Corrigan & Thomas, "Dice Loading" Rules Of Statutory Interpretation, 59 NYU Annual Survey Of American Law 231, 238 (2003). Available at SSRN: http://www.ayu.edu/pubs/annuaL urvey/articles/59*/.2ON.Y.U.%2OAnn.%2OSurv. /*20Am.% 20L.9/620231 Yi20(2003).pdf See also ■ Judicial activism ■ Judicial interpretation ■ Rule of law Retrieved from"http://en.wdapedmorg/wild/Statutory_interpretation" Category: Statutory law ■ This page was last modified 23:28, 6 May 2007. ■ All text is available under the terms of the GNU Free Documentation License. (See Copyrights for details.) Wikipedia® is a registered trademark of the Vddmedia Foundation, Inc., a US -registered 501(cx3) tax-deductible nonprofit charity. httpJ/en.wil ipedia.or&*iki/Stm tory_interpre4don / / Q' 6=007 RECEIVED APPLICATION FOR APPEAL APB 2 6 2007 OFFICE OF THE CITY CLERK Pursuant to the decision of the Alaska Supreme Court in Pruitt v. City q f Seward, Opinion No. 6096 (January 26, 2007)(copy attached as Exhibit A), the order of the Superior Court in City of Seward v. Pruitt, Case No. 3AN-03-13457 Civ. (copy attached as Exhibit B), and Seward City Code §15.10.410, James Pruitt d/b/a Seward Ship's Ace Hardware and Marine hereby applies to appeal the action and determination of Linda -Rae Olsen set forth in her letter dated August 18, 2000 (copy attached as Exhibit C) to the Seward Planning and Zoning Commission. 1. Name and Address of Appellant: James T. Pruitt d/b/a Seward Ship's Ace Hardware and Marine P.O. Box 944 Seward, Alaska 99664 C/O Office of Ronald L. Baird P.O. Box 100440 Anchorage, Alaska 99510-0440 2. Description of the Action or Determination from Which Appeal is Sought: See letter of Linda -Rae Olsen dated August 18, 2000 (copy attached as Exhibit C) 3. Reason for the Appeal Showing a Grievance to the Applicant: Ms. Olsen has erroneously interpreted Seward City Code § 15.10.140 to prohibit a canopy on the front of Appellant's building on Lot 1, Block 3, Leirer Industrial Subdivision which canopy has since been removed but is proposed by Appellant to be reinstalled. The filing fee of $300.00 is attached. APPLICATION FOR APPEAL BY JAMES T. PRUITT FROM A DETERMINATION BY LINDA-RAE OLSEN PAGE 1 OF 2 A hearing date in June is requested due to a previously scheduled absence of undersigned counsel from the State from May 18, 2007 t1i ugh June 2, 2007. Office of Ronald L. Baird Attorney for James T. Pruitt Ronald L. Baird Alaska Bar . 78 1079 Date: 7 cc: Alaska Superior Court Cheryl A. Brooking Wohlforth, Johnson, Brecht, Cartledge and Brooking APPLICATION FOR APPEAL BY JAMES T. PRUITT FROM A DETERMINATION BY LINDA-RAE OLSEN PAGE 2 OF 2 1 r, 1 REMOVED MAY 2 2 2007 ADNIINISTTtATMApp]E,AL, OFFICE OF RT�HE TO THE SEWARD PLANNING AND ZONING COM11'IISS10N FROM THE DECISION OF THE CITY CLERK CONCERNING A CANOPY ON A BUILDING ON LOT 1, 191,OCK 3, LEIRER INDUSTRIAL SUBDIVISION Witten Statement of Appellant, James T. Pruitt FACTS The facts in this matter are explained in the decision of the Alaska Supreme Court in Pruitt v. City of Seward, Opinion No. 6096 (January 26, 2007)(pages 2-5), a copy of which was attached tb Appellant's Application for Appeal. A picture of the canopy which was ordered retiioved is attached hereto as Exhibit A. POINTS AND AUTHORITIES I. The Canopy Which. Was On Mr. Pruitt's Building Did Not Violate The Seward City Code. A. The Citv'.s_Claim Of A Violation Is Not Supvorted By The Text Of its Ordinant�es. The City's first letter claiming a violation asserted that the canopy was in violation of the definition of setback provided by SCC § 15.10.140. The City's second letter asserts that the canopy violates the setback required by SCC Table 15.10.220. The latter provides for a setback bf 20 feet in front of buildings which are located in the Industrial zone. The definition of setback in SCC § 15.10.140 provides: WWtrEN STATEMENT OF JAMES T. PRurrT PAGE 1 OF 7 / -/, -7- Setback. The required minimum distance from right-of-way or lot line that establishes the area within which only fencing, landscaping, driveways, parking and s=" "lar uses are permitted. Any structure including, but not limited to, declg, stairways, porches or other attachments to a building are specifically pr'dhibited in the setback. Building eaves are permitted to extend into the Setback a maximum of two feet. (Emphasis added.) The City's first letter asserts that the canopy is an "other attachment" and therefore prohibited by this secfiion. This interpretation overlooks another relevant definition; that of "structure", provided. by SCC § 15.10.140 and fails to apply the legal principle of statutory interpretation known as ejusdem generis. SCC § 15.10.140 defines "structure" as follows: Structure. Anything constructed or erected on the ground or attached to something havyng location on the ground, including, but not limited to, buildings, toweit, and sheds. Fences, restraining walls less than three feet in height, signs, and similar improvements of a minor character are excluded. The critical words here are "on the ground" and the exclusion of "similar improvements of a minor character" from the definition. Returning to the definition of setback, what is prohibited in the setbaek are things which are "on the ground" like "decks," "stairways," and "porches" to which the definition makes specific reference. According to the doctrine of ejusdem generis, when a general word follows a list of specific persons or things, the general word will be construed to apply only to persons or things of the same type as those specifically listed.' Decks, stairways and porches all have a footprint on the ground. A canopy ddes not and is therefore not the type of building "attachment" to ` Northern Alaska Environmental Center v. State, Dept of Natural Resources, 2 P.3d 629,636 (Alaska 2000); U.S. Jaycees v. Richardet, 666 P.2d 1008, 1012 (Alaska 1983). WRITTEN STATEMENT OF JAMES T. PRUITT PAGE 2 OF 7 /,-? --.2 which the setback demotion in SCC § 15.10.140 applies. Even if a canopy did have such a footprint, it is nevertheless a "minor improvement" like a sign or fence which is not a structure within the definition of same provided by SCC §15.10.140. The text of the ordinances asserted by city officials as the basis for the violation asserted here do not support their conclusion. A canopy such as was constructed here does not violate the tdkt of those ordinances. B. The Canopy Does Not Interfere With Any Of The Purposes Of The Setback Which Are Stated By The Seward City Code. SCC §15.10.224(c)(1) sets forth the purposes of setbacks. It provides: Setbacks are required to insure sufficient open area for snow accumulation, sunlight, views; privacy, fire separation and visual relief between structures. Canopies do not interfbre with any of these purposes of the setback. A canopy clearly assists snow handling since it intercepts and stores snow above ground level thereby leaving the ground underneath clear and without a snow burden to be stored elsewhere. As to sunlight, views, privacy, and visual separation, these objectives probably refer to other adjacent properties. A canopy facing the street, as here, places no burden on the sunlight, views and privacy of other properties. As to side and rear setbacks, the impact of the canopy in those areas is certainly no more than fences and signs which are expressly permitted. And as part of a structure located out of the setback, any impact of canopies is in fact less than that of signs and fences because the canopy is necessarily located at the edge of the setback away from other property. WRitTEN STATEMENT OF JAMES T. PRUM PAGE 3 OF 7 As to fire separation, it is important to note that city officials have not claimed that the particular canopy & issue here is any kind of a fire hazard or violation of the Uniform Building Code as ad6pted in Seward. As to canopies generally, there is no general fire hazard associated with having them in fire separation areas.' Again, there is no reason to assume that a canopy even of combustible material presents any more of a risk of fire spreading than wooden fences and signs which are. not prohibited. In summary, there is no harm to the stated objectives of setbacks from allowing canopies within them. There is no reason then to twist the express language of the relevant ordinances td find a prohibition. As seen previously, that express language does not support the conclusion that there is a violation here. A. The Seward City Code Allows Canopies Or Eves 'In Circumstances Substantially Similar To The Subject Case. The Seward City Code expressly addresses canopies in the context of extension over sidewalks located in a public street right-of-way. SCC § 13.01.010 provides: 13.01.010. Obit -ructions on public sidewalk. It shall be unliEvvful for any person to place or maintain any obstruction on, upon, across, or adjacent to, any gutter or sidewalk in the city, which obstruction is declared to be unlawful. Canopies or roofs may be constructed over Rublic its-of-way_nrovidgd that these canopies or roofs do not interfere. with the use of t11e ri t-off way and that a permit for the Z The International Bitiiding Code defines fire separation distance as the distance between the face of buildings. International Building Code, §702, p. 92 (2000). Canopies may extend into such spades under a variety of circumstances. See, id. at §705.5.2, Exception 1; Appendix D, §D1621.8. VMTTEN STATEMENT OF JA.MF.S T. PAUM PAGE 4 OF 7 �r �- construction of the canopy or roof is first obtained from the city. Any canopy or roof is constructed and exists without liability on the part of the city and is the sole responsibility and liability of the owner of the property to which it is attached. (Emphasis added) Room on the street is of course required for snow storage, parking and vehicle maneuvering just as with the stated -purposes of a setback. These needs are far in excess of those required by dsers of the particular property with the canopy since use of the street is not limited to those traveling to and from the particular property with, the overhanging canopy: In addition, the right-of-way line is an ownership boundary. Nevertheless, SCC §11.01.010 permits canopies to encroach into the street so long as the use of the street is not inipaired. The permission allowed by SCC § 13.01.010 emphatically demonstfates that a canopy presents no inherent danger to the public safety and welfare and is compatible with use of the underlying land for snow storage, parking and vehicular maneuvering. SCC § 15.10.1 4b discussed previously allows building eves to extend up to two feet into a setback regardless of whether the setback is to the front, side or rear of the building. On any building and certainly ones of one-story, an eve has the same impact on the underlying land U the canopy at issue here. Nevertheless, SCC §15.10.140 permits them to exist up to two feet into the setback. The three situations are illustrated on the drawing attached hereto as Exhibit B. There is simply no rational basis for prohibiting the canopy here and allowing the other WRITTEN STATEMENT OF JAMES T. PRUr T PAGE 5 OF 7 1 r / two situations. If contrary to the analysis set forth in. the previous section the Seward City Code does prohibit the canopy here, the prohibition is irrational and arbitrary. B. If The Seward City Code Prohibits The Canopy At Issue Here It Violates Pruitt's ._Pti hght To equal Protection Of The Law Under The Alaska Constitution. The equal prdtection clause of the Alaska Constitution' is more protective of individual rights than the federal equal protection clause.' A three step analysis is applied under the Alaska equal protection clause which involves determining: 1) what weight is accorded the constitutional interest unpaired, 2) what purposes are served by the challenged law, grid 3) what means have been selected by the government to further its interests.' Without in any way conceding that Pruitt's right to free enjoyment and use of his land is entitled to only minimal protection, the regulations of the City here, if construed to prohibit this canopy, fail to meet even the minimal test of equal protection. That test is that the classification must be reasonable, not arbitrary, and must rest upon some ground of difence having a fair and substantial relation to the object of the legislation so that all persons similarly circumstanced shall be treated alike., Here the stated purpose of the setback is to provide an area "for snow accumulation, sunlight, views, privacy, fire separation and visual relief between structures." Canopias are functionally equivalent to roof eves in not interfering with 'Alaska Const. Art. Ii See.1. ¢State v. Anthony, 810 P.2d 155, 157 (Ak. 1991). 5Id, citing, Alaska Paei, fic Assurance Co. v. Brown, 687 P.2d 264, 269-70 (Alaska 1984). 6See, Gilman, supra, 662 P.2d at 125, citing, Isakson v. Rickey, 550 P.2d 359, 362 (Alaska 1976). W]UTM STATEhOW OF JAMES T. PRUITT PAGE 6 OF 7 / 1 -7 these purposes. And any claim that canopies interfere with the purposes is undercut by their allowance as .an encroachment over streets. Therefore, a prohibition of canopies in the setback does not have a "substantial relation" to the purpose of the setback. It is irrational and arbitrary and cannot be sustained under the equal protection clause of the Alaska Constitution. III. If The Commission Seeks Lea Advice Concerning This Appeal Ind endent Counsel Should.Be Provided. This matter has been in litigation for many years. The City's regular attorney has served as prosecutor against Mr. Pruitt. As explained in the letter attached hereto as Exhibit C, if the Commission requests legal advice concerning this appeal, independent counsel should be prdvided. The City's regular attorney may of course argue in support of the Clerk's positioli If the administration so chooses. CONCLUSION The City's clerk's interpretation of the setback requirement should be rejected by this Commission and Mr. Pruitt should be allowed to restore the canopy which was removed. Office of Ronald L. Baird Attorney for James T. Pruitt P.O. Box 100440 Anchorage, Alaska 99510-0440 907-565-8818 Ronald L. Baird Alaska Bar No.,1781079 Date: o'er VAUTTEN STATEMENT OF JAMES T. PRIJITT PAGE 7 OF 7 i � zi Canopy into Stet Right -of -Way Pursuant to SCC §13.01.010 Unlimited as long as no interference with use of right-of-way Street Right-of-way Single Story 19tiilding Eve Pursuant to Setback Definition in 9CC §15.10.140 Subject Can Street Right-oa Way Not to Scale Up to 2' Setback — Varies, as small as 5' Setback — 20 feet Ex.Wbit B / % i hf penis n: / ! ) if! OFFICE OF RONALD L. BAIR.D ATTORNEY AT LAW April 27, 2007 By Delivery Cheryl A. Brooking Wohlforth, Johnson, Brecht, Cartledge and. Brooking 900 West 5�' Avenue, Suite 600 Anchorage, Alaska 99501 MAU,MQ AMMS: P.O. Box 10044o ANCllol AM ALUKA 99510-04Q GWKS LOCATION: 431 W. 7TH Amur, Sun! 204 Awsow& ALAm pmon NO.: 907-565-8818 PAx m.: 907-565.9819 Subject: Application for Appeal of James T. Pruitt to the Seward Planning and Zoning Commission from the Decision of Linda -Rae Olson Concerning Seward City Code § 15.10.140 Our File: PRU-07 Dear Cheryl: Please find enclosed a copy of the above -referenced application which has been filed with the City Clerk of the City of Seward. Wohlforth, Johnson, Brecht, Cartledge and Brooking have served as attorneys for the City of Seward in City of Seward Y. James P Pruitt, Superior Court Case No. 3AN 03-13457. That case was the prosecution of an alleged zoning violation arising from the interpretation and determination which is the subject of the application. Accordingly, to insure that Mr. Pruitt receives a fair and impartial hearing consistent with due process, the City is requested to arrange for legal counsel other than your firm to advise the Commission and if necessary the Board of Adjustment concerning this appeal. Sincerely, AV Ronald L. Baird Enclosure Cc w/out enclosure: James T. Pruitt RLB:rIb - PRU07070424 Ur to Brooking EWbit C Pale __ of Notice. This opinion is subject to correction before publication in the PACIFIC REPORTER. Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303 KStreet, Anchorage, Alaska 99301, phone (907) 264-0608, fax (907) 264-0878, e-mail correcti onsQappellate. courts.stata alp us. THE SUPREME COURT OF THE STATE OF ALASKA JAMES T. PRUM d/b/a SEWARD SHIP' S ACE HARDWARE AND ) MARINE, ) Appellant, ) ) V. ) CITY OF SEWARD, an Alaskan } municipal corporation, ) ) Appellee. ) Supreme Court No. S-11628 Superior CourtNo. 3AN-03-13457 CIV. No. 6096 - January 26, 2007 4���.� v S �Appeal from the. Superior Court of the State of Alaska, Third � APP P Judicial District, Anchorage, Morgan Christen, Judge. _. AV)" 0 Appearances: Ronald L. Baird, Office -of Ronald L. Baird, 8 .c a � d Anchorage, for Appellant. Cheryl A. Brooking, Wohlforth, c Vassar, Johnson & Brecht,Anchorage, for Appellee. N.�u��P. o g PP .. z N Q � a',� Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe, r and Carpeneti, Justices. 2 Us -f It EASTAUGH, Justice. CAR.PENETI, Justice, dissenting. I. INTRODUCTION James Pruitt applied to the City of Seward for a permit to erect a new building in the city's industrial zone. Pruitt's building plan included a canopy over -the , - - F.Thihit building's front entrance. The city refused to grant pertnission to build the canopy, claiming that the canopy was an "attachment to a building" that would extend into the building setback mandated by Seward's zoning code. Pruitt did not appeal. After Pruitt erected his building, including the canopy, the city filed a superior court enforcement action and argued that Pruitt could not defend in that action because he had not exhausted his administrative remedies. The superior courtused its independent judgment to interpret the city's zoning codes, held that Pruitt was in violation of the zoning codes, and ordered him to remove the canopy. We hold that, because the city did not provide him with notice that its interpretation of the city zoning code was a final action, the exhaustion doctrine does not foreclose Pruitt from defending the city's enforcement action. We also hold that, because the city effectively denied Pruitt an opportunity to appeal.itmoning decision and because the zoning code is ambiguous, the superior court should have given him an opportunity to submit the issue of the code's meaning to the city's planting and zoning commission. We therefore remand with instructions to hold the enforeernent action in abeyance so Pruitt can appeal the city's interpretation of the zoning code. II. FACTS AND PROCEEDINGS A. Facts James Pruitt applied to the City of Seward for a building permit in August 2000. Pruitt proposed erecting a prefabricated building in Seward's industrial zone. The building plan included a canopy over the front entrance of the building. The Seward • City Code's {SCQ zoning provisions require that all "structures" in industrial zones .he. -2- 6096 1 "112 t Exhibit A. set back at least twenty feet from the street! Seward City Code § 15.10.140 defines "setback" as: The required minimum distance from right-of-way or lot line that establishes the area within which only fencing, landscaping, driveways, parking and similar uses are permitted. Any structure including, but not limited to, decks, stairways, porches or other attachments to a building are specifically prohibited in the setback. Building eaves are permitted to extend into the setback a maximum of two feet. Seward City Code § 15.10.140 defines "structure" as: Anything constructed or erected on the ground or attached to something having location on the ground, including, but not limited to, buildings, towers, and sheds. Fences, retaining walls less than three feet in height, signs, and similar improvements of a minor character are excluded. Linda -Rae Olsen, the city clerk, sent Pruitt a letter on August 18, 2000. It cited SCC § 15.10.140, and stated that from the building plans it appeared that the "roof [eave], the [fascia] panel, and the canopy over the store entrance" would extend into the setback. The letter indicated that Pruitt's site plan could not be approved unless he verified that: l . The building [eaves] -do not extend over two feet into the 20 foot front yard setback[;] 2. the store front canopy does not extend into the 20 foot front yard setback and; 3. the [fascia] panel does not extend into the 20 foot front yard or 10 foot side yard setbacks. At Pruitt's request, Olsen later faxed him information on applying for a variance from the zoning code. See SCC § 15.10.220; SCC § 15.10.140. -3- 6096 I ---I .1 Exhibit 14- Pruitt's building permit was issued in October 2000. It contained the following statement in bold print: "The Canopy is not part of this permit (and) has not been approved." The city engineer conducted inspections during construction and verbally notified Pruitt and his contractor during those inspections that the canopy extended into the setback. Dave Calvert, the city's building official, performed the final inspection. He told Pruitt that the canopy was in the setback and that he would not issue a certificate of occupancy until that problem was corrected. Rachel James, Seward's city planner, sent Pruitt a letter in March 2001 notifying him that his. canopy was "in violation of City Code § 15.10.140 pertaining to setbacks." The letter instructed Pruitt to remove the canopy from his building or provide an "as -built survey" showing that the canopy was not located in the setback. James also informed Pruitt that the planning and zoning commission ("commission") had put the topic of setbacks on its March 6, 2001 agenda. Pruitt then filed a variance application requesting authorization to allow "a one to three foot doorway overhang (canopy) into the twenty foot front yard setback." A public hearing on the variance application was held in April 2001 and the commission denied the application. Pruitt did not appeal this denial. Calvert sent Pruitt a letter in October 2001 notifying Pruitt that it was a violation of the Uniform Building Code to use or occupy the building without a certificate of occupancy. Calvert again emphasized that he would not issue a certificate of occupancy until the building complied with the city's zoning requirements. The letter also stated: "As always, you can appeal this decision to the City Council if you so desire." -4- 6096 Exhibit A Pruitt occupied the property and opened the building for business without a certificate of occupancy. In March 2002 Pruitt talked to Calvert about building a loading dock on the back of his store and applied for a building permit. Calvert told Pruitt that he would not issue any additional permits until Pruitt had corrected the "canopy setback problem" and obtained a certificate of occupancy for the building. As James had suggested in March 2001, Pruitt obtained an as -built survey in September 2002 showing that his canopy extended into the setback by two feet. Pruitt then built a covered loading dock without a permit. Calvert sent Pruitt a letter in May 2003 stating that by building the loading dock, Pruitt violated the building code because he did not submit plans for review or submit to inspections during the building process. Calvert reminded Pruitt that the canopy was still in the setback and that Pruitt did not have a certificate of occupancy for the building. Calvert also notified Pruitt that he could be fined up to $1,000 per day for the violations. In a July 2003 letter Calvert threatened legal action and warned Pruitt that steps would be taken to fine him up to $1,000 per day if he did not correct his violations of the building code. Calvert instructed Pruitt to reduce his canopy width and to obtain a building permit, a plan review, and inspections for the loading dock. Calvert advised Pruitt that the city would close the threatened legal action if Pruitt complied. During fall 2003 the commission addressed the setback requirement in the industrial zone at multiple commission meetings. In December 2003 the commission recommended reducing industrial setbacks to ten feet. Nothing in the record indicates whether the city council adopted the commission's recommendation and changed the city code. -S- 6096 Exh b- B. Proceedings Below The City of Seward filed a superior court enforcement action against Pruitt in November 2003. The city's complaint alleged that Pruitt: (1) violated SCC § 12.05.010 by using and occupying the building without a certificate of occupancy; (2) intentionally violated the building code by constructing the canopy in violation of the building permit; (3) violated the city's zoning code by constructing a canopy that extended into the required twenty foot setback; and (4) intentionally violated the building code by constructing a loading dock without a permit. The city asked the court to impose a fine of S 1,000 per violation per day plus punitive damages, to require removal of the loading dock, and to enjoin Pruitt from using the building without a certificate of occupancy. Pruitt counterclaimed, asserting that the city's treatment of the canopy as a violation of SCC § 15.10.140 violated his federal and state rights to due process and equal protection. Pruitt requested either an injunction prohibiting the city from classifying canopies such as Pruitt's as violations of SCC § 15.10.140 or a decree declaring that section .140 "does not prohibit the canopy on Pruitt's building or, if it does, that said ordinance is unconstitutional and may not be enforced against Pruitt." The, parties cross moved for summary judgment and the superior court heard oral argument. The city claimed that Pruitt had waived his right to raise any objections or to make any claims against the city because he did not exhaust his administrative remedies under the zoning and building codes. The city noted that Pruitt had not appealed the commission's denial of his variance application. It also alleged that _6_ 6096 -� -� Exhibit Pruitt should have administratively appealed the city's interpretation of SCC § 15.10.140 per SCC § 15.1.0.410.2 The superior court held that resolution of the exhaustion issue was not necessary because: Even if no deference is given to the Building Inspector's decision, the court reaches the conclusion that the canopy is an impermissible encroachment because the plain language of SCC 15.10.140 prevents an "attachment" to a "structure" to extend into the setback as far as the subject canopy. See: SCC 15.10.140. There is no question that the canopy is an attachment to a structure. The superior court refused to allow Pruitt to challenge the causes of action arising out of the city's building code because it found that Pruitt was aware of "the right to appeal violations of the building code" and had failed to do so. The court also held that Pruitt's constitutional arguments were "without merit." As a sanction, the court gave Pruitt the option of either bringing his building into compliance with the zoning and building codes within sixty days or paying a fine of $10.00 per violation per day for the approximately four years since the initial violation. The court also declared the city the prevailing party and awarded it attorney's fees. Pruitt appeals. Seward City Code § 15.10.410 states in pertinent part: (b) Appeals --standing. Anyperson orpersons aggrieved by an action or determination taken under this chapter may appeal said action or determination. (c) Time limitation. An appeal of a decision of the administrative official or the Seward planning and zoning commission must be filed within ten days of the action or determination being appealed.... Any decision not appealed within these time limits shall become final. -7- 6096 F.thihit .4 III. DISCUSSION A. Pruitt Is Not Barred from Raising a Defense to the Enforcement Action. The city argues that Pruitt cannot raise any objection or defense to its enforcement action because he failed to exhaust his administrative remedies. It claims that Pruitt was required to appeal the city's interpretation of the zoning code under the procedure set out in SCC § 15.10.410. That section allows a person aggrieved by any action or determination under chapter 15 ,10 of the city code to appeal that action or determination to the city's planning and zoning commission within ten days. It also specifies that any action not appealed within the prescribed time limit is final. The city also argues that Pruitt should have appealed the city's building code decisions through the administrative appeal process set out in SCC § 12.05.045. That section allows an appeal to the city council by any person aggrieved by an administrative officer's interpretation and enforcement of the codes of technical regulation adopted under chapter 12.05 of the city code. Pruitt's failure to appeal the city's decisions regarding the buildine code, however, does not help analyze whether Pruitt had an obligation to appeal the zoning code ruling. Because we believe the case tunas on Pruitt's obligation to appeal the zoning code ruling, the city's argument that Pruitt failed to exhaust under SCC § 12.05.045 is irrelevant As we explain below, the city's zoning code determination underlies all of its building code determinations. Thus, it does not matter whether Pruitt should have appealed the building code ruling under SCC § 12.05.045. The city also argues that Pruitt should have appealed the planning and zoning commission's decision denying the variance. But as we explain below in Part 3 SCC § 15.10.410(c). -8- 6096 1 -.2 Q Ezht�bit, _ III.C, it would have been inconsistent for Pruitt, while seeking a variance, to argue that his canopy did not in fact violate the zoning code. The variance process gave Pruitt an opportunity to argue that the city should make an exception to its conclusion that a canopy is an "attachment to a building" under SCC § 15.10.140; it did not give him an opportunity to argue that the city was misinterpreting its zoning code. We therefore conclude that Pruitt did not need to appeal the variance denial to exhaust his administrative remedies regarding the city's interpretation of the zoning code. We review de novo the legal question whether a party exhausted its available administrative remedies.4 Pruitt had standing to appeal to the planning and zoning commission the city's determination that his canopy was an "attachment to a building" within the meaning of SCC § 15.10.140, because that determination prevented Pruitt from lawfully constructing the building as he had proposed.5 The city has not alleged exactly which determination Pruitt should have appealed or when its interpretation of SCC § 15.10.140 became final. We assume that the city contends that Pruitt should have appealed to the commission after he received Olsen's letter informing him that his canopy was an "attachment to a building" that could not extend into the setback. There is no dispute that Pruitt did not appeal from that letter or any later letter arguably deciding that the canopy violated the zoning code. Pruitt argues that compliance with the city's appellate procedure should be excused "where the appellant doesn't get a notice indicating a final decision has been made and that a stated appeal time has begun to run." He refers by analogy to Appellate Rule 602(a)(2), which states that the appellate period "does not begin to run until the J a Matanuska Elec. Assn v. Chugach Elec. Assn, 99 P.3d 553, 558 (Alaska 2004). 5 See SCC § 15.10.410(b). 0 6096 8 . , — -Exhibit f}7 agency has issued a decision that clearly states that it is a final decision and that the claimant has thirty days to appeal." Pruitt contends that the time for appealing the city's interpretation of SCC § 15.10.140 has not yet begun to run because the city never told him that its decision was final, nor did it instruct him that he could appeal under SCC § 15.10.410. We have interpreted Appellate Rule 602(a)(2) strictly, requiring that to begin the running ofthe thirty -day appellate period, the agency's decision mustexplicitly state that it is a final decision.6 Although Appellate Rule 602 does not govern internal administrative agency appeals of the sort present here, it is analogous. The doctrine of fairness requires that an individual must be notified that the agency's decision is final and appealable, if the doctrine of exhaustion is to bar a claim in a later proceeding.? Moreover, if the recipient is not told explicitly that a determination is final, it can be difficult to determine whether an informal agency action is final and therefore b See Carlson v. Renkes,113 P.3 d 63 8,642 (Alaska 2005) (holding thirty -day appellate period had not begun because letter issuing opinion did not indicate that opinion was final or inform of appellate procedure); Manning v. Alaska R.R. Corp., 853 P.2d 1120, 1124 (Alaska 1993) (holding agency must "clearly indicate" that its opinion is final order and that aggrieved party has thirty days to appeal under Appellate Rule 602); Skudrzyk v. Reynolds, 856 P.2d 462, 463 (Alaska 1993) (holding that Appellate Rule 602 did not bar late -filed administrative appeal because letter from university president did not indicate that it was final decision). Cf. Owsichek v State, Guide Licensing & Control Bd., 627 P.2d 616, 622 (Alaska 1981) (holding that doctrines of surprise and excusable neglect allowed guide to administratively appeal board's determination after appellate period had passed because board had not notified him that its decision was final and appealable). Cf. Song v. Song, 972 P.2d 589, 594 (Alaska 1999) (holding that fairness required trial court to both notify litigants that it was converting their stipulated marital dissolution proceeding into divorce proceeding and provide evidentiary hearing on disputed property issues). -10- 6096 1/l1 A appealable! Informal agency decisions, such as those announced in letters, interpretive rules, and policy statements, often cannot be characterized as "final actions" because the decision either does not come from someone with ultimate decision -making authority or because the decision is hedged with language suggesting that the position taken is tentative.9 One commentator has noted that when an agency's determination is expressed informally, courts will determine the "finality" of the informal expression based on what is most equitable in that case.!° Courts will often allow appeals filed after the expiration of the appellate period if the party receiving the informal advice does not realize that such advice was meant to be determinative." We agree that a party should not be barred from raising an argument in a later proceeding for failure to exhaust its administrative remedies if it is unclear whether the agency's informal opinion was a final and appealable action. As noted above, we assume that the city contends that Pruitt should have appealed to the commission after he received Olsen's letter informing him that his canopy was an "attachment to a building" that could not extend into the setback. Olsen's letter stated: "This office has reviewed your plans for a new building. it also appears on the building plans that the ... canopy over the store entrance will extend into the setback." The letter then quoted SCC § 15.10.140, stated that " !her attaphMenjs to a building are specifically prohibited in the setback," and instructed Pruitt to verify that his 2002). 8 2 RicHARD J. PIERCE, ADMms ATm LAw TREATISE § 15.11 (4th ed. 9 2 PIERCE, supra note 10, at § 15.15. 10 2 FRANK E. COOPER, STATE AnNmsTRATm LAw 592-93 (1965). ii 2 COOPER, supra note 12, at 592-93; see also Owsichek, 627 P.2d at 622. -11- 6096 canopy would not extend into the setback. (Emphasis in original.) The letter did not specify what "this office" refers to but is written on City of Seward letterhead. The letter was signed: Sincerely, The City of Seward Linda -Rae Olsen City Clerk Olsen's letter did not inform Pruitt that the city's interpretation of the zoning code was final and appealable. Moreover, the city's zoning code does not specify which office or administrator bears ultimate responsibility for interpreting the code.12 Pruitt therefore had no way to know whether the interpretation expressed in Olson's letter was the city's final decision or whether he could attempt to persuade a superior that the letter's interpretation of the code was erroneous. There is also evidence in the record suggesting that the commission was in the process of changing the zoning code during Pruitt's canopy dispute. James's letter to Pruitt stated: "At your request, we have put the topic of setbacks on the Planning and Zoning Commission agenda for their regular meeting on March 6, 2001.." In an affidavit, Pruitt said that he discussed the canopy situation with then -City Manager Scott Janke, who told Pruitt that he hoped the setback requirement in industrial zones would be reduced. Pruitt's canopy would have complied with the city's zoning code had the setback requirement been reduced by only two feet. Ina later affidavit, Pruitt stated that he learned that the commission had discussed altering the setback requirements at 12 See SCC § 15.10.110—.430. -12- 6096 meetings in late 2003.13 This proposed change in the zoning code further indicates that the city's interpretation of the zoning code was not "final." Thus, because the city did not indicate in the Olsen letter that it was making a final decision and because the city suggested to Pruitt that it might change the zoning code in a way favorable to him, the city did not put Pruitt on notice that, by not appealing the city's determination that his canopy was a structure under SCC § 15.10.140, he would later be precluded from defending an enforcement action if the city brought one. Appellate Rule 602(a)(2) also requires agencies to inform parties of their right to appeal to the superior court within thirty days. Neither the city's letters notifying Pruitt that his canopy violated SCC § 15.10.140 nor the building permit prohibiting the canopy advised Pruitt that he could appeal those decisions. The city also did not inform Pruitt of the appellate process outlined in SCC § 15.10.410. The city first referred to SCC § 15.10.410 in its summary judgment motion in the superior court ,enforcement action. The only city conununication to Pruitt mentioning a right to appeal was the letter from Dave Calvert that stated: "As always, you can appeal this decision to the City Council if you so desire." But the subject of Calvert's letter was not SCC § 15.10.140; instead, Calvert's letter informed Pruitt that he was in violation of the building code, not the zoning code. It is the zoning code that 13 Pruitt's affidavit appears to interchange the years 2003 and 2004. For example, it states that the commission discussed altering the setback requirement at meetings on "October 8, November 5, and December 2, 2004." But then it states that a proposed amendment changing the setback requirement was presented at the December 2, 2003 meeting. Because he executed his affidavit on July 7, 2004, we assume that Pruitt erroneously attributed the commission's meetings to 2004 when in fact they occurred in 2003. -13- 6096 contains the setback requirement.14 Thus Pruitt was not informed of his right to appeal the city's interpretation of the zoning code before the city commenced the enforcement action. The city argues that Ben Lomond, Inc. v. Municipality of Anchorages$ forbids Pruitt from defending the enforcement action because Pruitt did not exhaust his administrative remedies. In that case, a municipal zoning official revoked building permits previously issued to Ben Lomond for construction of an apartment complex.16 The zoning official then explained to Ben Lomond that it had the right to administratively appeal the denial of its building plan.17 Ben Lomond chose not to appeal but later brought a separate superior court action for deprivation of property without due process.18 We held that Ben Lomond was barred from bringing its claim because it had failed to exhaust its administrative remedies when it chose not to appeal the zoning official's decision.l9 Ben Lomond is distinguishable in two significant ways. First, the municipal zoning official, after denying the proposed site plan, explained to Ben Lomond that the 14 SCC § 15.10.140 (defining "setback" as used in the zoning code); SCC § 15.10.220 (outlining setback requirements in each zoning district and describing purpose of setback requirement). 1988). 1s Ben Lomond, Inc. v. Municipality of Anchorage, 761 P.2d 119 (Alaska 16 Id. at 120. 17 Id. at 121. 18 Id. .19 Id. at 122. -14- 6096 �7`� decision could be appealed.° Here there is no suggestion that the city ever told Pruitt, even informally, of the applicable appellate process or that it notified him that a final decision had been made. Second, Ben Lomond initiated an independent action in superior court alleging that the municipal official's zoning decision violated its constitutional rights.21 Here, the city brought the enforcement action; Pruitt is merely attempting to defend that action. Because the city did not inform Pruitt that its decision was final, the exhaustion doctrine does not bar Pruitt from defending against the city's enforcement action. B. Pruitt is Not Collaterally Estopped from Challenging the City's Interpretation of SCC § 15.10.140. The planning and zoning commission's denial of Pruitt's variance application ruled that "canopies or marques which extend out from a building are attachments to a building and clearly prohibited in the setback." The city contends that because Pruitt did not appeal the denial of his variance application, he is foreclosed from arguing that a canopy is not an attachment under SCC § 15.10.140. The doctrine of collateral estoppel or "issue preclusion" prevents a party from raising a previously adjudicated issue in a later proceeding 22 Four requirements must be met for collateral estoppel to apply: (1) the party against whom issue preclusion is sought was a party in the previous action; (2) the identical issue was previously 20 Id. at 121. 2] Id. 22 Varilek v. City of Houston, 104 P.3d 849, 852-53 (Alaska 2004). -15- 6096 decided; (3) a final judgment on the merits was issued; and (4) the judgment depended on resolution of the issue in question.23 We review de novo the legal question whether collateral estoppel applies.24 The commission's denial of Pruitt's variance application does not meet the requirements for collateral estoppel because the denial was not dependent on the commission's finding that a canopy was an "attachment' under SCC § 15.10.140. Seward City Code § 15.10.325(d) requires satisfaction of seven conditions for a variance. The commission found that Pruitt met only two of the conditions. At least one condition that Pruitt failed to satisfy was unrelated to whether Pruitt's canopy was an attachment under SCC § 15.10.140. The commission is required to find that a requested variance -is "the muumwn variance necessary to permit the reasonable use of the land or structure."25 Because Pruitt's property was also being used for boat storage, the commission found there was reasonable use of his property that did not require a variance. The commission could have denied Pruitt's variance application solely because this condition was not met.26 We therefore cannot say that the commission's denial of Pruitt's variance application depended on its finding that a canopy is an attachment to a building under SCC § 15.10.140, and Pruitt is therefore not collaterally estopped from arguing that a canopy is not an attachment to a building. 2004). 23 Id. at 853. 24 Matanuska Elec. Assn v. Chugach Elec. Assn, 99 P.3d 553, 558 (Alaska 25 SCC § 15.10.325(d)(6). 26 See SCC § 15.10.325(d). -16- 6096 N7VVIkII%i+ 14 C. It Is Necessary To Give Pruitt Opportunity To Obtain the Commission's Interpretation of SCC § 15.10.140. We ordinarily give "great weight" to a zoning board's interpretation of its own zoning code and accept its interpretation when the board supplies a reasonable basis for it.27 This deference is based on a zoning board's expertise in administering zoning ordinances.Z8 When presented with a question of law that does not invoke agency expertise, however, a reviewing court will substitute its judgment for that of a zoning board.29 Pruitt argues that the city's interpretation of SCC § 15.10.140 in the enforcement proceeding is not supported by the text of the ordinance. Seward City Code § 15.10.140 states in part: Setback. The required minimum distance from right-of-way or lot line that establishes the area within which only fencing, landscaping, driveways, parking and similar uses are permitted. Any structure including, but not limited to decks, stairways, porches or other attachments to a building are specifically prohibited in the setback. Building eaves are permitted to extend into the setback a maximum of two feet. Structure. Anything constructed or erected on the ground or attached to something having location on the ground, including, but: not Iimited to, buildings, towers, and sheds. Fences, restraining walls less than three feet in height; signs, and similar improvements of a minor character are excluded. 31 27 South Anchorage Concerned Coalition, Inc. v. Coffey, 862 P.2d 168,173 n.12 (Alaska 1993). 28 Griswold v. City of Homer, 55 P.3d 64, 68 (Alaska 2002). 29 Id. -17- 6096 %4S --- it Pruitt argues that a canopy is neither a "structure" nor an "attachment." The city contends that we should defer to the interpretation the planning and zoning commission gave SCC § 15.10.140 in denying Pruitt a variance. When it denied Pruitt's variance request, the commission reasoned that "canopies or marques which extend out from a building are attachments to a building and clearly prohibited in the setback." But Pruitt did not have the opportunity to argue to the commission that a canopy is not an attachment to a building before the commission entered this ruling. It would have been inconsistent for him, in context of seeking a variance, to argue that his canopy did not in fact violate the zoning code.30 Also, the key issue in the enforcement case is whether Pruitt's canopy violated the zoning code; the commission did not have to decide this issue in order to deny Pruitt's variance application.31 Because the commission did not have to resolve Pruitt's present claim that the city's interpretation of the zoning code was erroneous, and because the commission's ruling was not necessary to decide the variance application, the commission's ruling on the variance application is not entitled to deference in the enforcement proceeding.32 30 See Kaufman v City of Glen Cove, 45 N.Y.S.2d 53, 62 (N.Y. App. Div. 1943) (noting that "implicit in every variance proceeding is the justified assumption that the ordinance prohibits the proposed use"). 3' Id. at 61 (holding that decision of zoning board in rejecting variance application does not bar subsequent suit seeking declaratory judgment that provision of ordinance does not prohibit desired use because issues in variance cases are fundamentally different than issues challenging interpretation of zoning code). 32 Id. at 62 (stating that in variance proceeding "any decision as to whether the ordinance, by its terms, does or does not prohibit the proposed use, is unnecessary and is a decision upon an immaterial issue. It is well established that any decision upon an immaterial issue is not binding in future litigation.'). -18- 6096 4 / F.Yhihit The superior court used its independent judgment to determine that "[tjhere is no question that the canopy is an attachment to a structure." The court held that Pruitt's canopy violated the "plain language" of SCC § 15.10.140. But whether the canopy violated the setback ordinance is not clear. Section .140 is not so clear that we can say, as a matter of law, that a canopy is an "attachment to a building." Moreover, according to Pruitt, the canopy only intruded into the twenty -foot setback by about twenty-four inches. The ordinance allows building eaves to protrude into a setback up to two feet.33 It appears possible that the canopy is sufficiently similar in form and function to building eaves that the canopy should be considered to be within the eaves exception.34 According to the ordinance, the purpose of setbacks is "to ensure sufficient open area for snow accumulation, sunlight, views, privacy, fire separation and visual relief between structures."3''' Pruitt argues that none of these purposes is compromised by his canopy, protruding as it does only two feet into a twenty -foot setback. He notes that "[o]n any building and certainly ones of one-story, an eave has the same impact on the underlying land as the canopy at issue here." Pruitt also argues that his canopy is a "minor improvement," more like a sign than the ground -based "decks, stairways or porches" mentioned in section .140. In summary, he argues that, in view of the.purposes of the setback requirement and the nature of both permitted and prohibited improvements therein, it would be irrational to prohibit canopies that extend two feet into the setback.36 33 SCC § 15.10.140. IV 34 We note that one definition of "eave" is "a projecting edge." WEBs'TER's THIRD NEW INTERNATIONAL DICTIONARY 717 (1966). 35 SCC § 15.10.220(c)(1). 36 We express no opinion as to whether it would be irrational for the (continued...) -19- 6096 J SCC 1 ^ Because it is unclear whether the canopy violated the setback ordinance, we are unable to affirm the superior court's conclusion that it did. Given the city's reliance on the exhaustion doctrine, and its failure to tell Pruitt it had made a final, appealable decision interpreting section .140, the court, rather than substitute its judgment for that of the commission, should have given Pruitt an opportunity to obtain the commission's interpretation.37 Whether the ordinances permit the canopy should be decided in the first instance by the commission. In any subsequent judicial review of the commission's decision on this issue, a .deferential standard of review should be employed and the decision will be subject to reversal only if it is unreasonable.38 It does not appear that the commission has had an opportunity to interpret SCC § 15.10.140 as applied to Pruitt in light of the parties' present arguments. The superior court on remand should therefore enter an order holding the enforcement action in abeyance until Pruitt has an opportunity to ask the commission to interpret SCC § 15.10.140. The superior court should instruct Pruitt that he has ten days from entry of that order in which to file with the commission an appeal under SCC § 15.10.410 from the city's interpretation of section .140. If he fails to comply with the city's appellate procedure, the abeyance order should be vacated, and the city may argue the exhaustion 3s(... continued) _ commission to decide that canopies are not the same as building eaves for purposes of the setback requirement and that it is desirable to prevent canopies from intruding into setbacks. There is no reason for us to decide or express an opinion about that issue before it becomes ripe. 37 See 2 PIERCE, supra note 109 at § 15.4 (stating that courts should refuse to decide merits of case and send back for exhaustion of administrative remedies when merits issue is unclear and subject to controversy). 38 See supra notes 29 & 30 and accompanying text. -20- 6096 /s% T_L2L" Q issue. Otherwise, the enforcement action should be held in abeyance until Pruitt exhausts his administrative remedies or he abandons the administrative appeals. This remedy will give Pruitt an opportunity to obtain the ruling from the commission that he could have sought with a timely appeal had he been told that the city had reached a final, appealable decision. If there is an administrative appeal to the superior court from a final agency determination, the superior court assigned to that appeal can consider whether to consolidate the two cases. D. The City's Four Causes of Action Against Pruitt all Relate to the City's Interpretation of the Zoning Code. The city's enforcement action pleaded four separate causes of action against Pruitt: (1) he violated the building code by using and occupying his building without a certificate of occupancy; (2) he violated the building code by not conforming to the permit that required the building be constructed without the canopy or in a manner so that the canopy did not extend into the setback; (3) his canopy extended into the twenty - foot setback required in the city's zoning code; and (4) he violated the building code by constructing the loading dock without a permit. The superior court found Pruitt liable on all four counts. All four causes of action depend on the city's interpretation of the zoning code. Most obviously, the claim that Pruitt's canopy violated the zoning code stems directly from the city's interpretation that a canopy is an attachment to a building within ,the meaning of SCC § 15.10.140. Calvert's affidavit stated that the building permit did not authorize the canopy because city officials noted that it would violate the zoning s code. The canopy's intrusion into the setback was also Calvert's reason for denying a certificate of occupancy for the building and a building permit for the loading dock. All four causes of action therefore originate in the city's conclusion that the canopy violated -21- 6096 Exhibit 4 the zoning ordinance. Because Pruitt must be given the opportunity to appeal the city's interpretation of "structure" to the commission, the superior court's grant of summary judgment must be vacated as to all four counts39 IV. CONCLUSION For the reasons discussed above, the superior court's judgment is VACATED. We REMAND with instructions that the city's enforcement actionbe held in abeyance until Pruitt has the opportunity to appeal the city's interpretation of SCC § 15.10.140. We therefore also VACATE the city's prevailing party award of attorney's fees. ' 39 Pruitt also argues that the city's interpretation of SCC § 15.10.140 violated his right to equal protection and substantive due process under the Alaska Constitution. Because we vacate the superior court's order and remand for further consideration, we need not address these arguments. We have been informed that Pruitt has brought the canopy into compliance with the city's reading of the code. The parties have not contended that this circumstance would moot this appeal, and the city's appellate brief states that Pruitt "apparently wants to rebuild the canopy in violation of City ordinances." -22- 6096 5 -3 Exhibit A CARPENETI, J., dissenting. James Pruitt wanted to build a commercial building that the City of Seward believed violated its zoning code. Through its employees, the city told Pruitt no less than seven times in writings and additional times orally' that a proposed canopy on the building extended illegally into the area reserved for setbacks under the city zoning laws. Pruitt nonetheless went ahead and built the building with the canopy. s See (1) Letter, Linda -Rae Olsen, Planning Clerk, to James Pruitt, August 18, 2000, advising Pruitt that "canopy will extend into the setback;" (2) Fax, Linda -Rae Olsen, Planning Clerk, to James Pruitt, August 23, 2000, informing Pruitt that "the canopy situation may not fall under [city zoning code]"; (3) Letter, Rachael James, City Planner, to James Pruitt, March 6, 2001, stating "[b]ased on the building site plan, the canopy is in violation of City Code § 15.10.140;" (4) Inspection Report, Dave Calvert, City Inspector, to Jinn Pruitt, May 21, 2001, commenting "Canopy is still in the setback;" (5) Inspection Report, Dave Calvert, City Inspector, to James Pruitt, June 4, 2001, noting "Canopy still in setback;" .(6) Letter, Dave Calvert, Manager, Engineering & Utilities, to James Pruitt, Oct. 24, 2001, citing "removal or modification of the Canopy" as primary item that needed to be corrected to qualify for a Certificate of Occupancy; (7) Letter, Dave Calvert, Building Official, to James Pruitt, May 6, 2003, explaining that the denial of a permit for the loading dock was due to having the "Canopy in the set back." w ' Affidavit of Dave Calvert, Building Official, stating that on June 4, 2001 Pruitt "was notified ... verbally as well as in writing that the canopy was in the setback" and that building officials "had numerous communications with Mr. Pruitt regarding the canopy." 3 Affidavit of Dave Calvert, Building Official, stating, "I conducted two [post -construction] inspections ... and on both of the inspection forms noted that the canopy was in the setback." -23- 6096 After the building was built, the city refused to issue the certificate of occupancy needed under the law to occupy the building.4 Pruitt nonetheless went ahead and occupied the building.-5 Pruitt then decided that the building needed a loading dock. He was told by the city that the necessary building permit would not be issued until Pruitt corrected the canopy problem and obtained a certificate of occupancy.6 Pruitt nonetheless went ahead and constructed the loading dock without correcting the canopy,' without obtaining a certificate of occupancy,$ and without even applying for (much less obtaining) the required permits for construction of the loading dock.9 4 Affidavit of James T. Pruitt, noting, "The City has refused to issue a certificate of occupancy ... and to even consider an application for a building permit for further improvements at this location because the canopy is an alleged violation." s Letter, Dave Calvert, Building Official, to James Pruitt, May 1, 2003, noting Pruitt "occupied the building and [has] been operating a business (Ace Hardware) since November, 2001 in violation of the code, and [has] not responded to our requests for a correction of the violation." 6 Affidavit ofDave Calvert, Building Official, stating, "I informed Mr. Pruitt that I would be unable to issue [a building] permit until he had corrected the canopy setback problem and obtained a C.O. for the building." 7 Letter, Dave Calvert, Building OfFicial, to James Pruitt, May 6, 2003, noting that Piuitt had constructed a loading dock and citing the canopy in the setback as the reason for previously denying a permit for construction of the loading dock. 8 Id., citing Pruitt's lack of an occupancy permit as the reason for denying a permit to construct the loading dock. 9 Affidavit of Dave Calvert, Building Official, stating Pruitt built the loading dock "without a permit and without notifying me." -24- 6096 J !S F,:hihit A Over three years after Pruitt initially applied for a building permit, and after two additional warning letters,10 the city brought an enforcement action against Pruitt." Superior Court Judge Morgan Christen ruled in the city's favor, holding that "[t]o the extent Mr. Pruitt raises challenges regarding violation of the building code, those challenges are not properly raised in superior court because Mr. Pruitt failed to exhaust his administrative remedies." But this court, holding that the city "effectively denied Pruitt an opportunity to appeal its zoning decision" and that the superior court should have given Pruitt the opportunity to submit the issue of the code's meaning to the planning and zoning commission, today vacates the superior eourt's decision and remands the case to allow Pruitt to appeal. Because the city specifically and in writing notified Pruitt of his right to appeal,12 because Pruitt had constructive notice of his right to appeal,13 and because Pruitt has done nothing during the course of this case to make any claim that it is inequitable to enforce the city's laws, I respectfully dissent. The linchpin of the court's opinion is its holding that the city "effectively denied Pruitt an opportunity to appeal its zoning.decision." This conclusion rests on the 10 Letter, Dave Calvert, Building Official, to James Pruitt, May 6, 2003, warning Pruitt that he was in violation of the building code; Letter, Dave Calvert, Building Official, to James Pruitt, July 28, 2003, noting that almost ninety days had passed since the initial notice of violation. 11 City of Seward's Complaint, Case No. 3AN-03-13457 CI, Nov. 20, 2003. 12 Letter, Dave Calvert, Building Official, to James Pruitt, Oct. 24, 2001, stating, "As always, you can appeal this decision to the City Council if you so desire." 13 Section 105 of the 1997 Uniform Building Code establishes the Board of Appeals to "hear and decide appeals of orders, decisions or determinations made by building officials relative to the application and interpretation of this code ...." -25- 6096 Irl ( w r 2 n .. I l court's careful distinction between whether Pruitt should have appealed the city's buil in a code rulings or whether he should have appealed the city's gaWn code rulings, and its conclusion that the city's zoning code determination underlies all of its building code determinations. Focusing only on the city's zoning code decisions (and thereby ignoring every other communication from the city that unmistakably told Pruitt that his canopy was illegal), the court concludes that Pruitt had "no way to know" that he had received a .final decision from the city on the building code. It is difficult to give credit to this conclusion. As the factual history above makes clear, the city had unequivocally notified Pruitt on multiple occasions that his proposal violated the applicable codes.14 His response — after an unsuccessful attempt to obtain a variance, from which he took no appeal was to ignore the city and build his building and to occupy it in violation of the codes.15 It is illogical to assume that Pruitt might have entertained any doubt at all that the city had given its final decision. Moreover, by his action alone he mooted for all practical purposes any claim that he should be allowed to pursue an appeal. Why the city's notice ofNuitt's appeal rights was sufficient On October 24, 2001, Dave Calvert, the manager of the Engineering & Utilities department of the City of Seward, sent a letter to Pruitt to "summarize past actions and provide [Pruitt] with the requirements for occupancy and use of [Pruitt's] building." The letter carefully recounted the history of the city's attempt to obtain a. compliance with its codes, set out a relevant portion of the building code, noted Pruitt's unsuccessful "appeal" to the Planning and Zoning Commission (the commission had 14 See supra nn.1-2. 15 See supra n.3. -26- 6096 157 W-m-S." A denied Pruitt's request for a variance), and notified Pruitt not to occupy the building until the noted items were corrected and a certificate of occupancy issued. It ended with this notice: "As always, you can appeal this decision to the City Council if you desire." Why Pruitt had constructive notice of his right to appeal As noted above, this long -running dispute between the city and Pruitt involved multiple communications between the parties. The city frequently brought to Pruitt's attention its concern that his building would violate, the zoning code16 and that its construction violated the building code.17 Pruitt was informed of his right to seek a variance (and did so), after the city sent him the relevant codes. He had constructive notice of the availability of the right to appeal set out in both the building and zoning codes.18 in this case Why it is entirely equitable to enforce the city's zoning and building codes The court implicitly faults the city for expressing its determination "informally," and notes that in such cases "courts will determine the `finality' of the informal expression based on what is most equitable in that case." Even accepting the 16 See, e.g., Letter, Linda -Rae Olsen, City Clerk, to Pruitt on August 18, 2000, informing him that the canopy would violate the zoning code and setting out the relevant section and her faxed letter to Pruitt on August 23, 2000 sending information on obtaining a variance. 17 See, e.g., Letter, Dave Calvert, Building Official to Pruitt on May 6, 2003 explaining that a permit for the loading dock was denied because the building was in violation of the building code. is Seward City Code 15.10.410 (appeals under the zoning code); Section 105, 1997 Uniform Building Code (city's building code in effect at the time pertinent to this case) (appeals under the building code). -27- 6096 )g(A court's characterization,19 there is no inequity in the superior court's resolution of this case. Pruitt ignored multiple notifications that, in the view of the responsible officials, his proposed building would violate the law. He went ahead and built it. He was told that he should not occupy it until a correction was made. He went ahead and occupied it. When he determined that he needed to add a loading dock, he was told that he could not obtain the necessary permit without correcting the original violation. Rather than comply, he constructed the loading dock without making the corrections, without obtaining the certificate of occupancy, and even without obtaining a building permit for the new construction. It is hard for me to accept the court's unstated conclusion that Pruitt has any claim to this court's (or Judge Christen's) power to do equity where the circumstances demand it. For these reasons, I respectfully dissent from the court's decision to vacate the superior court's judgment. 19 It is difficult to do so. There is nothing particularly "informal" about multiple written notifications from a city to a citizen that the citizen has violated the law. -28- 6096 ;41 Ti Irk; " A I WD L. BAMD mmayArLAw O kASYA 99510%0 W.?faAVXW 3urm204 i07.5654818 t907.565-8819 IN THE SUPERIOR COURT FOR THE STATE OF ALASKA .-TTiI1D,,R- DICL4,L DISTRICT CITY OF SEWARD, Plaintiff. V. JANES PRUITT DB/A SEWARD SHIP'S ACE HARDWARE AND MARINE, sole proprietorship Defendant. Case No. 3AN-03-13457 Civ. ORDER AFTER REMAND Pursuant to the decision of the Alaska Supreme Court in Pruitt v. City of Seward.. Opinion No. 6096 dated January 26, 2007, IT IS HEREBY ORDERED THAT: 1. Defendant, James Pruitt d/b/a Seward Ship's Ace Hardware and Marine shall have ten days from the date of entry of this order to file with the City Clerk of City of Seward a notice of appeal pursuant to Seward City Code §15.10.410 to . Seward Planning and Zoning Commission from the interpretation by city staff of City Code § 15.10.140 together with the filing fee of $300.00. 2. This action shall be held in abeyance pending the filing of such notice appeal and, if filed, until such appeal is finally determined by the City. City of Seward v. James Pruitt Order After Remand Case No. 3AN-03-13457 Page 1 of 2 Ezhihit A 3. The City shall pay to Pruitt $1,000 in satisfaction of the Supreme Court' Order Regarding Fees and Costs dated January 24, 2007 within ten days of the date t • 11 entry of this order. 107Z� HonortV Morgan Christen Judge of the Superior Court Date: Certificate of Service The undersigned hereby certifies that a true and accurate fartgoing, p�d doof nt w 200 mailed -on t0he day to: Cheryl A. Brooking Wohlforth, Johnson, Brecht, Cartledge and Brooking 900 West 5th Avenue, Suite 600 Anchorage, Alaska 99501 RDN= L. BAntn l2GAK ArwoNeY AT LAN ANe =Xr,ALUU 995104" 431 W.7tYAvM2 Surm 2o4 APKHOR &AL4M 907-565-8e18 City of Seward v. James Pruitt M"907•565419 Can No. 3AN-03-13457 Order After Remand Page 2 of 2 Exhibit 9 Ma+-10-04 16:40 Fron-awden�/ere; edev +8072244085 T 544. P.015/028 F-702 CITY OF SEWARD P.'0_ SOX 167 SE WARD. AL.ASKA 99664-0167 August 18, 2000 Seward Ships Chandlery James Pruitt P.O. Box 944 Seward, AK 99664 f ^► • Main Office (907) 224-4050 • Police (907) 224-3338 * Harbor (907) 224-3138 • Fire (907) 224-3445 Fax (907) 224-4038 Re: Building Permit No. 2000-43, Lot 1, Blk- 3, Leirer Industrial Preliminary Plat Dear lair. Pruitt This office has reviewed your plans for a new building on Lot 1, Block 3, Lei= Industrial Subd. It appears on the building plates that the front of the new structure will be built right on the 20 foot setback line, which is fine. However, it also appears on the building plans that the roof ever the facia panel and the canopy over the store entrance will extend into the setback. According to the City Code §15.10.140 which pertains to setbacks, it states that any structure including, but not limited to, decks, stairways, porches or other attachments to a building are specifically prohibited in the setback Building eve's are permitted to extend into the setback a maximum of two feet. ' Before this office can approve the site plan we will need verification on the plans that: I. The building eye's do not extend over two -feet into the 20 foot front yard setback: 2. the store front canopy does not defend into the 20 foot front yard setback and; 3. the facia panel does not extend into the 20 foot front yard or 10 foot side yard setbacks. If you have any questions concerning this, please call 224-4048 or email 101-5m@sg-W-Aw.net Sincerely, The CiV of Seward Linda -Rae Olsen City Clerk cc Dave Calvert 1029 ty ADNMVI STRATI APPEAL TO THE PLANNING & ZONING COMMSION May 10, 2007 James T. Pruitt dba Seward Ship's Ace Hardware and Marine P.O. Box 944 Seward, Alaska 996k NOTICt OF APPEAL SEARING Dear Mr. Pruitt; Your notice of ap "'W of a decision by the Administration which interpreted Seward City Code f g-.10.140 to prohibit a canopy within the setback on the front of a building locatgd on Lot 1, Block 3, Leirer industrial Subdivision was received in the City Clerk's Office on April 26, 2007. Your request for an extension of time #tic City had to hear this appeal to after June 2, 2007 was granted. A copy of the public notice is attached. DESCRIPTION OF PROPERTY The legal descriptioli as stated above is; Lot 1, Block 3, Le = Industrial Subdivision. Your Appeal Hearing is scheduled for: DATE: Tuesday, June 12, 2007 TffvlE: 6:30 p.m. PLACE: City Council Chambers, City Hall, Seward, Alaska WHOM: Before the Seward Planning and Zoning Commission This hearing will cftmence at the above date and time in the City Council Chambers, City Hall, 410 Addis Street, Seward, Alaska. Seward city $ode 15.10.425 states an appellant may file i written statement snm a,. . the facts and setting forth pertinent points and authoritigg in support of the points contained in the notice of appeal if such statement is filed ndi less than seven days prior to the date set for the appeal hearing: This deadline wiU Tuesday, June 5, 2007 before 8:00 am. For more information contact the Assistant City Planner at P.Q. Box 167, Seward, AK 99664 or e-mail ' d¢lenz@citvofseward.net. aly City Clerk Cc: Assistant Planrl& Law Office of k6nald L. Baird Wohlforth, Johtibbn, Brecht, Cartledge & Brooking City Manager /L 3 AWo City of Seward 9� � 2005 P.O. Box 167 Seward, Alaska 99664-0167 AihAmerlea City Main Office (907) 224.4050 Facsimile (907) 224-4038 e R ADMINISTRATIVE APPEAL TO THE SEARD PLANNING & ZONING COMMISSION Ronald L. Baird Attorney at Law P.O. Box 100440 Anchorage, AK 99510-0440 DECISION ON APPELLANT'S REQUEST FOR A JUNE HEARING DATE Re: Pruitt v City of 98ward Prohibiting a canopy in setback of a building on Lot 1, Block 3, Leirer Subdivision Dear Mr. Baird; You have filed an aftinistrative appeal to the Seward Planning & Zoning Commission on behalf of James Pfuitt, dba Seward Ship's Ace Hardware and Marine. Your appeal application also requais the date for this hearing be held after June 2, 2007. Seward City Code 15A0.415(a) requires the city clerk schedule this hearing to be held within 30 days upon rmceipt of a valid application. Per our phone conversation on May 3, 2007, the city will odiisider this a waiver of the time deadline requirement in our city code and honor your i dquest for a June appeal hearing date. Sincerely, Marvin Yoder City Manager Seward, Alaska Cc: James T. Pruitt City Attorney Cheryl Brooking SEWARD PLANNING & ZONING COMMISSION PUBLIC NOTICE OF APPEAL HEARING June 12, 2007 NOTICE IS HEROY GIVEN that the Seward Planning and Zoning Commission will conduct an appoal hearing on the following item of business at a meeting on Tuesday, June 12,.2007. Appeal of an Administrative decision which interpreted Seward City Code 15.10.140 to prohibit a canopy within the setback otl the front of a building located on Lot 1, Block 3, Leirer Indubtriai Subdivision. The appeal hearing will commence at 6:30 p.m., or as soon thereafter as business permits, in the City Council Chambers, City Hall, 410 Adams Street, Seward. All intdr5sted persons are Invited to attend the meeting, and the Administration or any interested party may submit written rebuttal to the appeal no later than 12:00 noon, June 7, 2007 to the Seward Planning and Zoning Commission, c/o City Planner, PO Box 167, Seward, AK 99664, or e-mailed to dglenz@cityofsew&rd.net. PUBLISHED: Witt be published in Seward Phoenix Log on Thursday, May 31 and June 7, 2007 under City Calendar. (P.O. # 100851 ) POSTED: Thursday, May 10, 2007 City Hall bulletin bd$rd U.S. Post Office Harbormaster's Building CITY OF SEWARD PO. BOX 167 SEWARD, AIASKA 99664-0167 SEWARD PLANNING & ZONING NOTICE OF HEARING June 12, 2007 • Main office (907) 224-4050 • Police (907) 224-3338 • Harbor (907) 224-3138 • Fire (907) 2243445 • City Clerk (907) 224-4046 • Engineering (907)- 224-4049 • UUII099 (907) 224-4050 • Fax (907) 224-4038 ON NOTICE IS HEREBY GIVEN that the Seward Planning and Zoning Commission will conduct a hearing on the following matter on June.12, 2007. Appeal of an Administrative decision which interpreted Seward City Code 15.10.140 to prohibit a canopy within the setback on the front of a building located on Lot 1, Block 3, Leirer industrial Subdivision. The parcel is located within the Leirer Subdivision, on the East side of Leirer Road. You are being sent this notice because you own, or have interest in property within 300 feet of the affected land Copies of the staff review will be on file in the City Clerk's Office for public review Monday, Friday, June 8, 2007. The hearing will commence at 6:30 p.m., or as soon thereafter as business permits, in the City Council Chambers, City Hall, 410 Adams Street, Seward. All interested persons are invited to attend. For more information, contact the Seward Planning and Zoning Commission, c% City Planner, PO Box 167, Seward, AK 99664, or e-mail d enz(@cityofseward.net. Sincerely, The City of Seward, Alaska 0 -1 Donna C1lenz Jk Planning Assistant 907-224-4048 (phone) 907-224 4085 (fax) / 14//J i CITY OF SE'WARD, ALASKA AFFIDAVTT OF MAIUING FUBI,IC HEARING NOTICE Donna Glenz, upon oath, deposes and states: That she is employed in the Community Development Office of the City of Seward, Alaska; and that on ' D she mailed a Notice of Public Hearing to the real property owners within a 300 foot periphery of Lot 1� . Block 3. Leirer Subd. as prescribed by Seward City Code 15.01.040/1 b.01.015. Affirmed and signed this .�?day of May 2007. !. fA/4WI � Donna AssistantPWming GIACMALINM DEVELOPMENT FOLDERIFORMATS - DONNMPUBLIC HEAMOSWAD NG AFMAVrr I= /67 AFFIDAVIT OF POSTING PUBLIC HEARING NOTICE Li hereby certify that I have posted a Notice of Public Hearing, as prescribed by Seward City Code ' 15.01.040/16.01.015 on the property that has been petitioned for an appeal hearing on the administrative decision which interpreted Seward City Code 15.10.140 to prohibit a canopy within the setback. The notice was posted on 5�% `� '� ---'o 7 , which is /3 days prior to the public hearing on this petition. I acknowledge this Notice must be posted in plain sight, maintained and displayed until all public hearings have been completed. .fined and signed thi00 day of M10" 2007. Legal Description Lot 1, Block 3 Leir+er Subdivision Ace Hardware Appeal