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HomeMy WebLinkAbout9A Community Development Response to Appeal ArgumentsCommunity Development Response to Appeal Arguments Tougas et al. v. Seward Planning and Zoning Commission and Randy Wells Planning and Zoning Commission Resolution 2025-035 Scope of Review and Applicable Standards The City Council, acting as the Board of Adjustment, reviews the Planning and Zoning Commission’s decision to determine whether the Commission applied the correct legal standards and whether its decision is supported by substantial evidence in the record. The Council does not reweigh evidence or substitute its judgment for that of the Commission. The Community Development Department’s (staff) role in this proceeding is to appear on behalf of the Planning and Zoning Commission to defend Resolution 2025-035 and to demonstrate that the Commission properly applied the Seward City Code. The Commission reviewed the proposed drive-thru pursuant to Seward City Code (SCC) §15.10.320, which requires findings regarding consistency with zoning purpose, compatibility with surrounding uses, adequacy of public services, and protection of public health, safety, and welfare. These findings are set forth in Resolution 2025-035 and form the basis for the Commission’s approval. Additionally, staff is empowered to interpret Title 15 Planning and Land Use Regulations in accordance with SCC §15.01.015, including identifying and addressing threshold procedural issues necessary for the consistent and lawful administration of the Code, including whether appellants have standing to pursue an appeal. Threshold Issue: Standing and the Requirement of an Aggrieved Party Before deliberating the merits of the appeal applications, staff asks the Council to first determine whether the appellants have demonstrated standing. Standing requires a showing that the appellant is aggrieved by the decision. Seward City Code provides that appeals may be filed by “any person or persons aggrieved by an action or determination taken under this chapter,” and the appeal application further requires that an appellant articulate how they are aggrieved by the decision being appealed. The term aggrieved carries legal significance and requires a showing that the decision causes a direct, tangible, and personal impact to the appellant, as opposed to a generalized objection, policy disagreement, or opposition to a lawful land use. The Commission approved a conditional use permit for a drive-thru component of a retail marijuana establishment, a use that is allowed outright in the Auto Commercial zoning district. The appeals primarily raise generalized traffic and safety concerns associated with Received by the City Clerk January 2, 2026 the broader roadway network. Simply using a public roadway or intersection, like other members of the general public, does not by itself establish the kind of specific, personal impact required for standing. If general disagreement with a lawful land-use decision were sufficient to establish standing, the standing requirement would be rendered meaningless, and nearly any quasi- judicial decision would be appealable. Such an interpretation would set a precedent that would undermine finality, create uncertainty for applicants and the City, and impose substantial administrative burdens through the potential increase of future appeals. Clear guidance from the Council regarding its interpretation of the standing requirement would assist in the consistent administration of the Code. Based on the record, the appellants have not demonstrated that they are aggrieved within the meaning of the Code. The filing of four separate appeals by seven individuals advancing nearly identical, generalized arguments underscores the absence of a demonstrated personal or particularized grievance as required to establish standing. Absent a showing of standing, the appeal does not provide a procedural basis for overturning the Commission’s decision. Should the Council disagree with staff’s interpretation of the standing requirement, the following points address the substantive merits of the appeal applications. Interdepartmental Review and Adequacy of Public Services A substantial portion of the appeal applications focuses on traffic and public safety concerns associated with the proposed drive-thru. As part of the standard conditional use permit process, the application was reviewed by City departments, including Public Works, Police, and Fire. No traffic, access, or public safety concerns were identified by those departments during their review. The absence of departmental objections is part of the record, and the Commission is entitled to rely on the expertise of City departments in evaluating public safety and service adequacy. The appeals do not identify any contrary departmental evidence in the record. Public Comment, Petitions, and Evidentiary Weight One appeal references a petition containing approximately 100 signatures in support of the drive-thru and characterizes the petition as evidence that the proposal would result in increased traffic. While public testimony is an important component of the hearing process, petitions and expressions of support or opposition do not constitute empirical evidence of traffic generation or impacts. The Commission considered public testimony but appropriately relied on site design, operational characteristics, and factual information in the record when evaluating traffic impacts. The petition does not demonstrate that the drive-thru would generate traffic beyond what was evaluated and addressed in the Commission’s findings. Public Services Are Adequate to Serve the Proposed Use Traffic conditions at the Port Avenue and Seward Highway intersection were discussed during the Commission’s review. The proposed drive-thru is intended to serve existing customers and, as a small business operation, is not expected to generate traffic volumes beyond what is typical for surrounding commercial uses. Any traffic figures referenced during the Commission’s review were provided for general planning context and proportionality. These figures were intentionally conservative and were used to assess whether the proposed drive-thru could reasonably be accommodated within the approved on-site circulation and queuing design, not to predict precise or future traffic volumes. In planning practice, low-volume drive-thru facilities are generally understood to generate relatively modest traffic volumes when compared to higher-intensity quick-service restaurants. Traffic impacts associated with adding a drive-thru can vary widely depending on operational characteristics, service model, and site design. Consistent with that understanding, the Commission considered owner-provided estimates and general trip- generation ranges to evaluate whether anticipated activity levels could be safely managed on site. When evaluating the potential traffic impacts of a drive-thru window, the primary considerations include the adequacy of on-site queuing and circulation, whether the proposal introduces new ingress or egress points or relies on existing access, and the context of surrounding land uses. The approved site plan provides approximately 80 feet of queue space, accommodating four vehicles in line and one vehicle at the service window. Transactions will be preordered and prepaid, limiting service time to identification verification and product pickup. Expected service times are short, resulting in minimal queuing. Even under conservative assumptions, the available queuing capacity exceeds anticipated demand and prevents vehicles from encroaching on the public right-of-way. Even if the business expands to include the sale of non-cannabis products, it is not expected to approach traffic volumes typically associated with moderate- or high-volume drive-thru facilities. The Commission further found that the site’s internal circulation design, including one-way traffic flow along the east side of the building separated from on-site parking, minimizes internal conflict points and supports safe vehicle movement on the site. Importantly, the approved conditional use permit does not create any new ingress or egress points to the property. Customers utilizing the drive-thru will use the same existing access points currently serving the site from Port Avenue and the Seward Highway. Existing traffic regulations governing the northbound Seward Highway merge lane remain in effect, including restrictions on turning movements, and continue to regulate how vehicles may legally exit the property. Alaska Department of Transportation Authority Several appeal arguments suggest that approval of the CUP allows or endorses unsafe access to a state-maintained roadway. The Commission’s approval does not grant or imply approval of highway access. Access to the Seward Highway remains subject to the independent authority and permitting requirements of the Alaska Department of Transportation. One appeal application correctly notes that activities within Alaska DOT right-of-way or affecting driveway access require prior written authorization if changes to ingress/egress exist; however, the approved conditional use permit does not propose or authorize any changes to existing ingress or egress. The drive-thru traffic circulation is entirely on site, the property will continue to utilize the same existing access points, and no modification to driveway locations or highway access was requested or approved. Finally, even if additional DOT permits are required, it is not within the Commission’s purview to determine or enforce the permitting requirements of other agencies. The Commission’s responsibility is limited to reviewing the CUP under the criteria set forth in the Seward Zoning Code. The obligation to obtain all other necessary local, state, or federal permits rests with the applicant and is not a basis for denying a CUP. Traffic Study and Proportionality Appellants argue that the Commission should have required a traffic study prior to approving the CUP. The safety concerns at the Port Avenue and Seward Highway intersection are longstanding and, as acknowledged in the appeals themselves, are primarily attributable to large tour buses, trucks hauling oversized boats, semi-trucks, and freight vehicles, including those carrying potentially hazardous materials. There is no evidence in the record that the proposed drive-thru would materially exacerbate these conditions, particularly given that the anticipated drive-thru traffic consists of small passenger vehicles rather than heavy or oversized commercial traffic. Future development and infrastructure projects, such as expansion to businesses in the harbor, increased cruise ship activity, and railroad operations, are anticipated to contribute additional traffic to the area. These impacts are accepted as part of the City’s growth and have not resulted in requirements that those entities restrict their development or that they should independently fund traffic studies. Requiring a small business to address broader, system-wide traffic conditions would be disproportionate and inconsistent with established land-use and planning principles, especially considering the proposed drive- thru represents one of the smallest traffic-generating footprints in the corridor. In short, staff would inquire why a traffic study would be warranted for a small business when the larger traffic generators in the area are not subject to similar requirements. The record contains no evidence that this use would generate impacts materially different in scale or character from other permitted uses utilizing the same roadway network. Absent such evidence, a traffic study was not warranted. Intersection Concerns and Safe Streets and Roads for All (SS4A) As mentioned in the appeals, concerns regarding the overall safety of the Port Avenue intersection are acknowledged in the City’s Comprehensive Plan surveys and in the Kenai Peninsula Borough Safe Streets for All document. However, the purpose of the Safe Streets and Roads for All document is to identify system-level traffic challenges and recommend infrastructure and design solutions to be implemented by the DOT and City. These broader infrastructure solutions are beyond the scope of what can reasonably be required of a single small business owner through a CUP process. The proposed drive-thru, which does not introduce new access points and operates within existing traffic controls, is not inconsistent with the goals or recommendations identified in this document. During their review, the Commission appropriately focused on site-specific impacts and whether the proposed use can operate safely at the subject property. Restricting an otherwise code-compliant business through the CUP process is not a substitute for addressing broader, system-level transportation issues. Those improvements are appropriately addressed through transportation planning and engineering, not through denial of a code-compliant conditional use permit. Value of Adjoining Property Will Not Be Significantly Impaired Seward City Code requires the Planning and Zoning Commission to find that a proposed conditional use will not significantly impair the value of adjoining property. In making this finding, the Commission considered the site’s design, operation, and surrounding land-use context. Traffic volumes associated with the drive-thru are not expected to exceed those typical of surrounding commercial and industrial uses. Noise impacts are minimal, as the drive-thru does not utilize ordering speakers, and the site is surrounded by public rights-of-way on all sides except for one parcel to the east, which is a former Alaska Railroad right-of-way and primarily vacant, except for a small portion that contains telecommunications infrastructure. No new lighting impacts will occur, as there are no menu boards, and business hours will remain unchanged. Vehicle stacking has been adequately addressed through on-site queuing. Given the Auto Commercial zoning designation and the existing mix of commercial and industrial uses in the area, the Commission reasonably concluded that the drive-thru is compatible with surrounding properties and will not significantly impair adjoining property values. The record contains no evidence to the contrary. Compatibility with Zoning, Surrounding Uses, and the Comprehensive Plan Retail marijuana establishments are permitted outright in the Auto Commercial zoning district. The conditional use permit applies only to the drive-thru component. The Commission correctly found that the drive-thru is consistent with the purpose of the Auto Commercial zoning district, which is intended to accommodate highway-oriented commercial activities that generate traffic and parking demand. Arguments raised in the appeal statements suggest that the approval of the drive-thru window does not uphold the purpose of the Planning and Zoning Chapter in the city code, one of which states that the Seward Zoning Code should “prevent undue traffic congestion.” As a matter of zoning and land use law, this language does not require the City to eliminate traffic or prevent all congestion. Rather, it directs the City to ensure that development-related traffic impacts remain reasonable, safe, and proportional to existing infrastructure. Accordingly, the Commission’s review properly focused on whether the existing roadway and site design are adequate to accommodate the incremental traffic associated with the proposed drive-thru window, not whether the intersection as a whole is sufficient to accommodate all current and future traffic from a wide range of unrelated sources. Comments in the appeal applications also allude to citizens of Seward expressing at state and local meetings that they would like to see more regulations for marijuana establishments in their community. These public comments advocating for additional regulation of marijuana establishments raise legislative issues beyond the scope of a quasi-judicial CUP review. In a quasi-judicial proceeding, the Commission and the public are bound by the code as it is currently written. The proposed drive-thru is allowed under the land-use table, and is consistent with the zoning district and the Comprehensive Plan’s support for small business development. Public Safety, Health, and Welfare Appellants have raised concerns regarding potential safety impacts to pedestrians and bicyclists on a nearby bike path. However, the Alaska Department of Transportation has already approved the two driveway access points serving the property. Vehicles will enter and exit the site across the bike path regardless of whether the drive-thru window is implemented. The proposed drive-thru does not introduce a new condition or conflict between vehicles and bicyclists beyond what is already permitted and existing. As such, the project does not create an additional public safety hazard. Appellants have also expressed concerns regarding the manner in which products are sold through the drive-thru window. These concerns fall outside the scope of the Commission’s authority and are not relevant to the land-use compatibility analysis required for a Conditional Use Permit. The Commission’s role is to determine whether the proposed use is appropriate for the location based on the applicable review criteria, not to regulate or evaluate compliance with operational or industry-specific regulations. Regulatory oversight related to the sale of products through a drive-thru window is the responsibility of the appropriate governing agencies. In this case, the Alcohol & Marijuana Control Office (AMCO) regulates how the business sells its product, just as the Health Department regulates food safety for fast-food drive-thru operations. The Commission may not deny a Conditional Use Permit based on speculation regarding compliance with regulations enforced by other agencies. Commission Deliberation and Decision-Making Two appeal applications suggest that concerns raised by individual Commissioners were ignored or not properly considered. The record reflects that traffic, safety, and operational issues were discussed during Commission deliberations. The fact that not all Commissioners ultimately agreed with every concern raised does not indicate that those concerns were disregarded. Commission deliberation necessarily involves the exchange of differing viewpoints and professional judgment. The final decision reflects the Commission’s collective determination that the conditional use permit criteria were satisfied. Disagreement among Commissioners is not evidence of procedural error; rather, it demonstrates that the issues were actively considered and weighed prior to adoption of the Commission’s findings. In addition, the record reflects that alternative findings proposed by a dissenting Commissioner were not adopted because portions of those findings extended beyond the scope of the conditional use permit review. Specifically, the proposed language referenced broader community preferences regarding marijuana regulation and applied conditional use permit criteria to aspects of the marijuana retail use itself, which is allowed outright in the zoning district. Such considerations were not properly attributable to the drive-thru component under review and were therefore outside the applicable standards for the decision before it. Supplemental Written Statement Rebuttal In addition to the appeal applications, staff reviewed a supplemental written statement submitted by one appellant and evaluated the additional arguments raised. While the submission expands on several themes already addressed in the appeal applications and our written statement, staff offers the following clarifications. The supplemental statement characterizes community sentiment regarding marijuana establishments by citing a limited number of responses from Comprehensive Plan survey materials. While community surveys provide useful context during legislative planning processes, they do not constitute adopted policy and do not override the zoning code currently in effect. A small number of survey responses does not represent the community as a whole, and generalized expressions of preference regarding marijuana regulation raise legislative issues beyond the scope of this quasi-judicial appeal. The Commission and Council are required to apply the code as written. The supplemental statement also raises concerns regarding the manner in which marijuana products are sold through a drive-thru window. As stated previously, regulation of marijuana operations, including sales methods and operational compliance, falls under the authority of the Alcohol & Marijuana Control Office (AMCO), a regulatory office within the State of Alaska’s Department of Commerce, Community, and Economic Development. The Planning and Zoning Commission’s role is limited to evaluating land-use compatibility under Title 15 and does not extend to adjudicating or enforcing AMCO regulations. The appellant further cites SCC § 8.25.025 as authority for Council to deny the drive-thru component of the proposal. That section governs the City’s ability to make recommendations to the State of Alaska regarding marijuana establishment licenses administered by AMCO. It does not confer land-use decision-making authority under Title 15, nor does it apply to the review of a conditional use permit or to this appeal proceeding. The Commission’s decision was properly made under the applicable zoning code provisions governing conditional uses. The supplemental statement also compares the proposed drive-thru’s queue length to standards typically associated with moderate- to high-volume coffee drive-thru operations. The appellant’s argument assumes, without evidence, that the sale of coffee would transform this use into a high-volume, commuter-oriented drive-thru similar to a standalone coffee kiosk or national quick-service restaurant. There is no support in the record for that assumption. For context, even Seward’s standalone drive-thru coffee kiosk operates at a scale that is generally understood to be low-volume relative to national or commuter-oriented drive-thru models. The proposed drive-thru remains accessory to an existing, regulated retail operation with limited customer throughput, age-restricted access, and a fundamentally different market profile than typical morning commuter coffee traffic. Ultimately, the appellants have not provided substantial evidence that the proposed drive- thru will generate traffic volumes exceeding on-site capacity or materially worsen intersection operations. Under established land-use law, conjecture, extrapolation, and generalized opposition do not meet the evidentiary threshold required to overturn a quasi- judicial approval. Finally, many of the concerns expressed in the supplemental statement reflect disagreement with the City’s current marijuana establishment policies. While members of the public may advocate for changes to those policies through legislative processes, such considerations fall outside the scope of a quasi-judicial conditional use permit appeal. The Commission appropriately limited its review to the applicable criteria and the record before it. After reviewing the supplemental written statement, staff reached the same conclusions set forth in this response: the appellants have not demonstrated standing under the Code, and the Planning and Zoning Commission’s decision remains supported by substantial evidence and consistent with the Seward City Code. Conclusion Resolution 2025-035 demonstrates that the Planning and Zoning Commission applied the correct legal standards, made the findings required by SCC §15.10.320, and relied on substantial evidence in the record. The appeals reflect policy disagreement and generalized concerns rather than legal error or evidentiary deficiency. Disagreement with the outcome does not constitute grounds for standing or reversal.