HomeMy WebLinkAbout07112022 City Council LAYDOWN - Hemlock SubdivisionCHANDLER, FALCONER, MUNSON & CACCIOLA,
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'TO: Stephen Sowell, Assistant City a
FROM: Samuel Severin, City Attorney
RE: Engineering Concept 4, Hemloc Subdivision
DATE: July 5, 2022
LLP
220711 CC Regular Meeting
LAYDOWN
You have asked for advice regarding the application of § 15.01.035 (b)(2) of the
Seward City Code to the City's proposal to forward with Engineering Concept 4, as
described in Action Memorandum 2022-03. SCC 15.01.035 (b) (2) states:
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.
On May 3, 2022, the Planning and Zoning Commission failed Resolutions 2022-
009 (Replat) and 2022-010 (Rezone) relating to the Hemlock Subdivision. Concept 4
pertains to the same area. The question is whether the new proposal is "substantially the
same" as the proposals in Resolutions 2022-009 and 2022-010 such that the nine -month
prohibition in SCC 15.01.035 (b)(2) prohibits moving forward at this time.I
There is no definition of "substantially the same" in the code. As the Alaska
Supreme Court has observed, "the words "substantial" or "substantially" are relative,
inexact terms. Their meaning is quite elusive. The meaning of such terms can be derived
only be reference to all the circumstances surrounding the context in which they are
used."Z
1 Plat approval is governed by Title 16 of the Seward City Code. There is not a similar nine -
month prohibition in Title 16. The resolutions are discussed together as they have been generally
handled as one item; however, this analysis only applies to the zoning action.
Warren v. Boucher, 543 P.2d 731, 736 (Alaska 1975).
Another way to frame the question is to ask whether the current proposal is
materially different from the proposal in Resolutions 2022-009 and 2022-010.3 It is
materially different. For example, the new proposal goes from forty lots to thirty lots and
goes from forty single-family homes to sixteen duplexes and fourteen four-plexes. The
number of individual dwelling spaces goes from forty to eighty-eight. Resolution 2022-
010, regarding the rezoning, was to rezone the parcel from Institutional to Single Family
Residential (R1). The new proposal is to rezone it from Institutional to Multi -family
residential (R3). The code definitions are:
Single- amily residential district (Rl 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.
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 ofpublic 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.
The new proposal more than doubles the number of dwelling spaces and is a
completely different zoning designation. While "substantially the same" is an inexact
term, the new proposal clearly represents a material change from the prior resolutions,
which is responsive to the reasons for the previous denial, such as the expressed need
for higher density housing.
The context of the City Code itself provides guidance. The more general
provision in § 15.01.035 (a) states: 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.
Section 15.01.035 (a) is specific to the City council and allows it to adopt an
ordinance changing the zoning regulations or boundaries whenever it is necessary in
light of the public necessity, convenience or general welfare. The more specific rule in
§ 15.01.035 (b)(2) appears designed to save public resources by not allowing abuse of
the process by applicants putting forth very similar proposals until they finally get a
different result. But rezoning is legislative, and the Council has the ability to make
amendments or changes whenever it is in the best interest of the City. Rezoning, due to
3 See 83 Am. Jur. 2d Zoning and Planning § 700, citing "material changes" in proposed use of
the land as an exception to overcome a bar on subsequent applications in the zoning context.
Memorandum Regarding Engineering Concept 4, Hemlock Subdivision Page 2 of 2
its legislative nature, is generally less subject to prohibition on subsequent applications
as, for example, requests for variances.4
The new proposal is for an entirely different zoning designation, changing from
R1 to R3. It is materially different; it is not substantially the same as the previous
application. The change, for example, from forty single family homes to sixteen duplexes
and fourteen four-plexes is indicative of a good faith effort to put forth a new proposal,
though it pertains to the same area. If the standard were that second proposals could not
be "similar" to prior proposals, this might be a closer call. However, the new proposal
outlined in Concept 4, as described in Action Memorandum 2022-03, does not even
border on being "the same as" the prior applications.
4 52 A.L.R3d 494, §2[b].
Memorandum Regarding Engineering Concept 4, Hemlock Subdivision Page 2 of 2