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