HomeMy WebLinkAbout02242020 City Council Laydown - Ord 20-001 ATTORNEY-CLIENT PRIVILEGE
MEMORANDUM
TO: SEWARD CITY COUNCIL
MAYORTERRY
CITY MANAGER
FROM: HOLLY WELLS
CITY COUNCIL ANALYSIS REGARDINGORDINANCE 2020-001
CLIENT: CITY OF SEWARD
FILE ., 5074 5,100
DATE: FEBRUARY 22, 2020
1. INTRODUCTION
The purpose of this memorandum is to provide City Council with a user-friendly
reference for Co'uncil's review of Ordinance 2020-0�01 amending the land use plan and
zoning designation of the west half of federal addition Blocks 7, 14, and 17, except Lot
7A Block 17, From Single Family Residential (R1) and two family residential (r2) to
urban residential. Previously„ Council reviewed the Planning; Commission's decision
regarding the rezone application from which Ordinance 2020-001 arose. Council's role
at that time was to limit its review to determining if the Planning Commission's
determinations and recommendation regarding the rezone application was arbitrary. At
that time, Council, sitting as the Board of Adjustment was not the decision-maker.
Instead, Council acted as a stop-gap against arbitrary decision-making,, affording
deference to the findings and considerations of the Commission. In considering
Ordinance 2020-001, Council is serving as the ultimate legislative decision-maker. As a
result, Council will be required to make its own determination regarding the adoption of
the ordinance. While Council; has substantial discretion in making its determination, its
decision also cannot be arbitrary.' Although the Commission's decision and findings
may influence Council's ultimate legislative determination, Council 'itself must answer
questions regarding the purpose, necessity„ and desirability of the proposed rezone and
decide whether or not to adopt the ordinance. The best way to ensure that Council's
decision is not arbitrary, prejudicial or otherwise unlawful is to provide a few specific
questions for Council to use as a guide as it considers Ordinance 2020-001. I have also
attached an Appendix to this memo for easy reference to relevant State Statutes and
1 See e.g. Norene v. Municipality of Anchorage, 704 P.2d 199, 202 (Alaska 1985)';
Seward Chapel, Inc. v. City of Seward, 55'5 P.2d 1293, 1299 (Alaska 1982).
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City Code provisions relevant to Ordinance 2020-001 and Council's consideration of
that Ordinance.
11. CONSIDERATIONS FOR COUNCIL: ENSURING ORDINANCE 2020-01 IS NOT
"SPOT ZONING" AND MEETS SEWARD CITY CODE REQUIREMENTS
Council has two main objectives when reviewing Ordinance 2020-001; 1) Determine
if public necessity, convenience or general welfare necessitates the rezone and the
rezone is permitted under the Seward City Code and 2) Ensure that the proposed small
parcel rezone does not constitute "spot zoning" under Alaska law. By meeting these
goals, Council ensures that its decision is not arbitrary.
QUESTION 1: DOES PUBLIC NECESSITY, CONVENIENCE OR GENERAL
WELFARE REQUIRE THE REZONE?
According to SCC 15.01.035(a), City Council has authority to amend its land use
district boundaries whenever "the public necessity, convenience or general welfare
requires" such amendment. In addition to the minutes of all Commission proceedings
regarding the proposed amendments as well as maps identifying the proposed rezone,
two agenda statements have been submitted by City Administration supporting adoption
of Ordinance 2020-001 and providing Council with details regarding the proposed
rezone. There has also been public testimony regarding the pros and cons of the
rezone.
Council should review the documents submitted, including the testimony before
Council and the minutes of the Commission, and ask the above question. In order to
answer this question, the City Administration is prepared with not only the record before
the Commission but also with references to the City's Comprehensive Plan and Land
Use Plan as well as other documents that demonstrate the goals, priorities, and
objectives of the City. In order to answer the above question, Council may want to look
at the following:
1. According to the February 24, 2020 Agenda Statement, the Ordinance is not
consistent with the City Comprehensive Plan. What is the nature of the inconsistency?
If, for example, the Ordinance is inconsistent with the future land use map, is the rezone
consistent with other, more general principles underlying community development under
the Comprehensive Plan?
2. What are the main impacts of rezoning the parcels and what uses will result from
the change? Are these changes in the uses necessary for the public's convenience or
do they promote the general welfare of the City?
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3. What are the impacts of rezoning on other parcels that are adjacent to the
parcels? Are there negative impacts or consequences that would be inconsistent with
the Comprehensive Plan or the City's stated development goals?
Council's determination regarding necessity, convenience, and public welfare is not
an exact science. While Council members may have different opinions regarding these
considerations, its important that the question is asked and the reasons for individual
Council member's determinations regarding this question are expressed on the record.
QUESTION 2: DOES THE REZONE INCLUDE AT LEAST ONE ACRE,
EXCLUDING STREETS AND RIGHTS-OF-WAYS?
Council should also confirm that the City Administration's findings that the rezone
proposal complies with Seward City Code 15.01.035(b)(3) is accurate. Rezoning of a
parcel that is not less than one acre, not including street or alley rights-of-way, is not
permitted unless the rezone is merely changing the boundaries to an existing
contiguous zoning district or bringing a parcel into conformance with the land use plan.
See SCC 15.01.035(b)(3). Here, the proposed rezone is not changing the boundaries
to an existing contiguous zoning district or bringing a parcel into conformance with the
land use plan so it needs to be at least one acre, excluding streets and rights-of-ways.
This question is one of fact, not of opinion, and thus Council should clearly state that the
rezone meets this requirement before adopting the Ordinance.
QUESTION 3: DOES THIS SMALL-PARCEL ZONING CONSTITUTE SPOT
ZONING?
While Council should have essentially answered this question through its answer to
Questions 1 and 2, it is useful to separate out the "spot zoning" analysis from the
general compliance analysis as it ensures that the record reflects Council's awareness
of the potential for "spot zoning" when approving a small-parcel zoning amendment.
"Spot zoning" is a term of art that, in Alaska, essentially means illegal zoning. "Spot
zoning" occurs when a zoning amendment "reclassifies a small parcel in a manner
inconsistent with existing zoning patterns, for the benefit of the owner and to the
detriment of the community, or without any substantial public purpose." See Griswold v.
City of Homer, 925 P.2d 1015 (Alaska 1996)(citations omitted). Put simply, it is not okay
to approve a zoning amendment that benefits an individual or small group when doing
so is inconsistent with current zoning pattens, detrimental to the community, and does
not serve a substantial public purpose.
In 1992, the Alaska Supreme Court found that the City of Homer did not "spot zone"
when it adopted an ordinance amending the Homer Zoning Code to allow motor vehicle
sales and services on 13 Homer Central Business District lots. However, in affirming the
Homer Council's adoption of the zoning amendment, the Alaska Supreme Court clearly
identified the criteria that should be considered when determining the propriety of a
zoning amendment, namely 1) is the zoning amendment consistent with the
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comprehensive plan; 2) what is the affect of the amendment on the owners and the
public at large; and 3) what is the size of the zoning area? The court applies a
balancing test that weighs these three criteria in determining whether or not the
proposed amendment is arbitrary. Thus, Council should consider all three questions
when reaching its ultimate determination. No single criteria mandates a finding that
there is "spot zoning" or insulates an small-parcel zoning amendment from such finding.
However, a finding that the amendment is inconsistent with both the Comprehensive
Plan and the spirit of the Comprehensive Plan would provide significant support for a
"spot zoning" finding and l would recommend against adoption of the Ordinance in light
of such a finding.
QUESTION 3A: DOES THE PROPOSED AMENDMENT COMPLY WITH
THE COMPREHENSIVE PLAN?
The Alaska Supreme Court has found that consistency with the
Comprehensive Plan indicates that the amendment is rational, and not
arbitrary. However, just because an amendment is consistent with the
Comprehensive Plan does not automatically make it lawful. Similarly, an
amendment that is consistent with the "spirit" of the Comprehensive Plan may
be lawful even where it does not align with the express provisions of the Plan.
As a- result, Council should ask the question: "Is this consistent with the
Comprehensive Plan?" and if not, "Is it consistent with the spirit of the
Comprehensive Plan?" See Griswold v. City of Homer, 925 P.2d 1015, 1021
(Alaska 1996). This question should have been addressed by Council in
answering Question 1 above. However, it is worthwhile for Council to simply
state that and incorporate its comments regarding Question 1 into the "spot
zoning" discussion.
QUESTION 313: WHAT IS THE EFFECT OF THE ZONING AMENDMENT ON
THE OWNERS AND ON THE COMMUNITY AT LARGE?
This question requires the most weight as a proposed amendment that harms
the public but benefits the individual landowners is most likely to constitute
spot zoning. This question also should have been substantially answered
during Council's consideration of Question 1 above.
The courts have noted that the types of legitimate legislative goals that may
justify small-parcel zoning include, but are not limited to: regulating and limiting
the density of populations; conserving and stabilizing property values,
providing open spaces for light and air, avoiding the creation of dense
population areas, reducing street congestion, and promoting health, safety and
general welfare.2 Council should ask itself, and those presenting to it: Are any
of these goals, or other similar goals, served by the amendment?
2 Griswold v. City of Homer, 925 P.2d 1015, 1023 (Alaska 1996)
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QUESTION 3C: DOES THE SIZE OF THE ZONING AMENDMENT
SUGGEST THAT "SPOT ZONING" IS OCCURRING?
While there is no parcel that is so small it is automatically deemed "spot
zoning" or so large it escapes scrutiny, the size of a proposed area for rezone
provides insight into the reasons underlying the proposed amendment.
Council's answer to Question 2 will inform its discussion regarding this
question. Also, Council should consider if the area is so small it impacts the
value to the community at large. That said, sometimes a small rezone can
have a substantial impact on public welfare. Council should discuss the size
of the proposed rezone area and the relation of that size to the public interest.3
3 Griswold v. City of Homer, 925 P.2d 1015, 1024-25 (Alaska 1996).
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APPENDIX A
RELEVANT STATE & LOCAL LAW REGARDING ORDINANCE 2020-001
The following is a list of relevant state statutes and Seward City Code provisions
relevant to Ordinance 2020-001. Specifically relevant provisions have been italicized
for easy reference.
A. ALASKA STATUTES
AS 29.40.010 "Planning, platting, and land use regulation" (Adopted 1985)
(b) If a city in a borough consents by ordinance, the assembly may by ordinance
delegate any of its powers and duties under this chapter to the city. The
assembly may by ordinance, without first obtaining the consent of the city, revoke
any power or duty delegated under this section.
AS 29.40.040. Land use regulation (Adopted in 1985)
(a) In accordance with a comprehensive plan adopted under AS 29.40.030 and in
order to implement the plan, the assembly by ordinance shall adopt or amend
provisions governing the use and occupancy of land that may include, but are not
limited to,
(1) zoning regulations restricting the use of land and improvements by
geographic districts;
(2) land use permit requirements designed to encourage or discourage specified
uses and construction of specified structures, or to minimize unfavorable effects
of uses and the construction of structures;
(3) measures to further the goals and objectives of the comprehensive plan.
(b) A variance from a land use regulation adopted under this section may not be
granted if
(1) special conditions that require the variance are caused by the person seeking
the variance;
(2) the variance will permit a land use in a district in which that use is prohibited;
or
(3) the variance is sought solely to relieve pecuniary hardship or inconvenience.
Alaska Statute 29.40.030 "Comprehensive plan"
(a) The comprehensive plan is a compilation of policy statements, goals,
standards, and maps for guiding the physical, social, and economic
development, both private and public, of the first or second class borough, and
may include, but is not limited to, the following:
(1) statements of policies, goals, and standards;
(2) a land use plan;
(3) a community facilities plan;
(4) a transportation plan; and
(5) recommendations for implementation of the comprehensive plan.
(b) With the recommendations of the planning commission, the assembly shall
adopt by ordinance a comprehensive plan. The assembly shall, after receiving
the recommendations of the planning commission, periodically undertake an
overall review of the comprehensive plan and update the plan as necessary.
B. SEWARD CITY CODE PROVISIONS
SCC 15.05.020 - Land use plan—Purpose.
A park 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)
SCC 15.05.025 - 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.
(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 from 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) Single-family residential district (R1). Intended to provide for stable and quiet
low to medium density (one to five dwelling units per acre) detached, single-
family residential development, free from other uses except those which are both
compatible and convenient to residents of such a district.
(3) Two-family residential district (R2). 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 multi-family 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 multi-family residences from
undesirable effects.
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(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 surrounding 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 high density central business district and surrounding medium-
high density residential districts.
(7) Harbor commercial district (HC). Provides an area for water-dependent or
water-related uses with particular emphasis on transportation, tourist,
recreational, commercial or industrial enterprises which derive major economic or
social benefit from a harbor location.
(8) Auto commercial district (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 parking, and which also serve the offices and nearby
residential areas, and which do not materially detract from nearby residential
areas.
(9) Central business district (CBD). Provides for an area of convenient, attractive,
concentrated commercial development primarily intended for retail, financial,
entertainment and professional services occurring within enclosed structures.
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 (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.
(11) Institutional district (INS). Public and private educational, administrative,
government and health care uses, including public land reserve for future public
development. 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, § 3, 1989: Ord. 649, § 2, 1991)
Chapter 15.10. - Seward Zoning Code
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Article 1. - General Provisions
15.10.110 - Title.
This chapter shall be known and cited as the "Seward Zoning Code." The
provisions of this chapter are applicable to all lands within the municipal limits of
the City.
SCC 15.10.115 - Purpose.
This chapter is adopted in order to:
1. Protect the public health, safety and general welfare of the community's
residents;
2. Promote fire safety and public order;
3. Provide adequate open spaces for aesthetics, light, air and to prevent and fight
fires;
4. Provide safe, aesthetic surroundings and living conditions;
5. Prevent undue traffic congestion;
6. Conserve and stabilize the value of property;
7. Prevent undue concentrations of population;
8. Provide for orderly and stable public, residential, commercial and industrial
development;
9. Facilitate systematic development of adequate public improvements and
services such as transportation, utilities, schools, parks and other public facilities;
10.Determine the most appropriate use of land in accordance with the
comprehensive plan;
11. Implement the comprehensive plan for the City; and
12. Provide a method of administration and to prescribe means of enforcement of
the provisions of this title.
SCC 15.10.120 - Applicability of regulations.
Except as hereinafter provided, all land and structures within the City shall be
constructed, used, occupied or altered in conformance with the requirements of
the zoning district in which they are located. The regulations set by this chapter
within each zone shall be minimum regulations and shall apply uniformly to
private and public property, and to each class or kind of structure or land, except
as hereinafter provided. All lots, structures, and uses within the corporate limits of
the City shall conform to the applicable district purposes as defined in this
chapter and shall conform to applicable district regulations as enumerated in
Tables 15.10.220 and 15.10.225.
(Ord. 626, § 3, 1989)
SCC 15.10.125 - Permitted uses.
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(a) The express enumeration and authorization of a particular class of building,
structure, premises, or use in a designated zone shall be deemed a prohibition of
such building, structure, premises, or use in all other zones unless otherwise
specified.
(b) In cases of reasonable doubt as to whether a use is permitted in a specific
zone, the guidelines established for conditional uses in section 15.10.320 shall
apply.
(Ord. 626, § 3, 1989)
SCC 15.01.035 - Amendments.
(a) Generally. Whenever the public necessity, convenience or general welfare
requires, the City Council may, under the procedure set forth in this section and by
ordinance, amend or repeal these regulations or change zoning and land use district
boundaries.
(b) Initiation.
(1) Changes in this title may be initiated by the following means:
a. By the City Council on its own motion;
b. By the commission on its own motion;
c. By petition of a majority of the property owners in the area to be amended;
d. By petition bearing the signatures of 50 registered voters within the City; or
e. By petition as provided by the home rule charter of the City.
(2) A proposed amendment which is substantially the same as any other proposed
amendment submitted within the previous nine months and which was not approved
shall not be considered.
(3) Except for an ordinance altering the boundaries of existing, contiguous zoning
districts or an ordinance which brings a parcel into conformance with the land use plan,
no ordinance altering zoning within the City shall be considered if the area
encompassed by the proposed ordinance contains less than one acre, not including
street or alley rights-of-way.
(4) The amendment request shall include the name and address of the applicant, a
map showing the area involved, the present and proposed land use designation, the
reason for the proposed change, the appropriate application fee as set by City Council
resolution and other pertinent information requested by the City.
(c) Amendment procedure.
(1) A completed application, as described in this section, shall be submitted to the
administrative official. The administrative official shall schedule a public hearing
pursuant to the provision of section 15.01.040.
(2) The commission shall hold a public hearing in accordance with the requirements
of this chapter.
(3) The commission shall, upon public hearing, forward its written recommendation
to the City Council, along with all certified minutes and public records relating to the
proposed amendment.
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(4) The City Council, in accordance with the provisions of the City code, may or may
not adopt the amendment as a City ordinance.
(5) A copy of all proposed and adopted amendments to the land use plan shall be
submitted to the Kenai Peninsula Borough planning commission for information.
(Ord. 626, § 3, 1989)
SCC 15.01.040 - Public hearings.
(a) Public hearings as required by this title shall comply with the notice requirements
as contained herein.
(1) Procedures.
a. Notice of the public hearing shall be published at least twice in a newspaper of
general circulation within the City. The notice shall be published during each of the two
calendar weeks prior to the public hearing date.
b. The notice shall contain at least the following information: a brief description of the
proposal on which the public body is to act; a legal or common description of the
property involved; date, time and place of the public hearing; person and place to
contact for more detailed information.
c. Decorum of the body holding the hearing shall prevail.
(2) Neighboring property owners notification. A copy of the public hearing notice
shall be mailed to the applicant and to real property owners of record on the Kenai
Peninsula Borough assessor records within a 300-foot periphery of the parcel affected
by the proposed action. This notice shall be mailed not less than ten days prior to the
date of the hearing. When a public hearing is to be held regarding an amendment
involving a change in text or major district boundary changes, no notification of
neighboring property owners shall be required, but notices shall be mailed to affected
property owners and displayed in at least three public places.
(3) Public posting. The applicant shall post the property subject to the application
with public notices as provided by the City at least ten days before the date of the
required public hearing. Such notices shall be placed so as to be visible from each
improved street adjacent to the property. The applicant is responsible for removing the
posted notices within five days after the hearing is completed. Failure to properly post
notices is grounds for deferral or denial of the application. No one except the applicant,
an agent of the applicant, or the City shall remove or tamper with any such required
posted notice during the period it is required to be maintained under this paragraph.
(4) Proof of posting. Before the public hearing, the applicant shall submit to the City
an affidavit signed by the person who posted the notice or caused the posting to be
done that the notice was posted as required by this section.
(Ord. 626, § 3, 1989; Ord. 97-01)
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