DATE:                 January 16, 2002

TO:                     Planning Commission

FROM:             Tim Maguire, Principal Planner
                          Community Development Department

SUBJECT:        Similar Use Determination, BVS Building

FILE NO.:        TXT2002-00002

Background

The State of Alaska is proposing to relocate the Bureau of Vital Statistics (BVS). This operation is currently housed in and under the purview of the Alaska Department of Health and Social Services (DHSS).

The BVS vault stores and protects irreplaceable and confidential documents including birth and death certificates marriage and divorce documents, and adoption documents..

It was decided that this agency should be relocated into a new building to provide a better space to meet the needs of the BVD operation. DHSS published an RFP to seek long term lease proposals for a new building to house the BVS. The State had a number of proposals submitted and a selection was made.

One of the patties that responded to the RFP, but was not selected, asked the Community Development Department (CDD) for interpretation of the code regarding zoning compatibility. Specifically, the question was asked if the use as described for the BVS would be allowed in I, Industrial zoning . A more detailed description of the project was provided including a breakdown of the size of the various functions. Based on this written description, Staff made the interpretation that the use as described was an office use and therefore not allowed as a stand-alone use in the I, Industrial zoning districts. (See Attachment A ).

The party (applicant) whose proposal was selected is challenging this determination made by CDD. They are proposing to locate for the new building in an I, Industrial zoning district (See Attachment B).

In addition, the applicant has submitted a much more detailed description of the project in their letter dated January 7, 2002 and have included a proposed site plan (See Attachments C&D). Specifically, the applicants are requesting that the Planning Commission make an interpretation of the code to determine the proposed use of the BVS building, as more completely described, to be a use allowed in the I, Industrial zoning districts.

Interpretation PROCEDURE

The Land Use Code has two avenues for resolving disagreements in interpretation of the Code. The first would be to appeal of a decision of the Director to the Planning Commission under section §49.20.110. The appeal procedure is a more detailed and lengthy process, and gives standards for review. The second process authorizes the Board of Adjustment to interpret questions regarding the zoning maps and the text presented. by the department or a property owner directly concerned . The applicants have chosen to use the latter process to resolve this question concerning zoning compatibility. The following is the particular section of code:

 

Article III. Interpretations

§49.20.300 AUTHORIZATION TO INTERPRET. The board of adjustment is authorized to interpret the zoning map and the text of this title and to pass upon questions of lot lines or district boundary lines and similar questions presented by the department or a property owner directly concerned. (Serial No. 87-49 ' 2 (part), 1987).

§49.20.310 SUBMITTAL. An application for a map or text interpretation shall be submitted to the board of adjustment by filing a copy of the application with the director in the department of community development. The application shall contain information sufficient to enable the board to make the necessary interpretation. The interpretation shall be scheduled for consideration by the commission. Individual mailed notice of boundary line interpretations shall be provided to adjacent property owners. (Serial No. 87-49 ' 2 (part), 1987).

§49.20.320 USE NOT LISTED. After public notice and a hearing, the board may permit in any district any use which is not specifically listed in the Table of Permissible Uses but which is determined to be of the same general character as those which are listed as permitted in such district. Once such determination is made, the use will be deemed as listed in the Table of Permissible Uses. (Serial No. 87-49 ' 2 (part), 1987).

Specifically, the applicant is requesting that the Planning Commission consider the activities described for the BVS building a use not specifically listed in the Table of Permissible Uses (TPU) but one that is similar to other are allowed in the I, Industrial District.

 

ANALYSIS

The RFP that was developed by the State called out a list of functions and minimum areas that would be required for the new BVS building. The applicant's proposal meets these minimum requirements with some variation in thereas. The site plan that was submitted shows in detail how these function and area requirements would be met (See Attachment D). As noted above, the BVS is charged with keeping these very important records. As such, one of the features required for the new building is a large vault (2,750 square feet) to keep these records safe.

The applicants have also broken down the activities of the building into three main categories. The first is customer service, which is considered to be 30 % of the activities. The second is the processing and maintenance of the records which is estimated to be 50 percent of the activities, the majority of the BVS activities. Finally, the remaining 20% of the activities is researching the records.

The applicants contend that these building features are unique (vault and security) and that the use of the building primarily for maintenance and researching records distinguishes it from a typical office use. Because it is a unique use, it does not fall into any listed uses in the Table of Permissible Uses. Therefore the Planning Commission must determine it to be a use similar to other uses listed in the TPU for it to be allowed. They have suggested a number of use categories to consider.

Although, the BVS may have some unique features and activities, staff does not believe that these distinguish it from other uses currently listed in the TPU. For example, a bank commonly has a vault and a higher level of security. With regard to the operation, the primary activities listed were customer service, processing and researching records. These are all activities that are common to office type uses. The CDD processes permits and has major areas set aside for storage and related permit activities.

However, as noted above, the primary function of the BVS is the keeping of records. This is not a use incidental or accessory to other activities. A more accurate description of the BVS operation may therefore be clerical rather than office. The definition of clerical in the Merrium Webster dictionary refers to word "clerk". A definition of clerk is as follows:

" 3 a: an official responsible (as to a government agency) for correspondence, records, and accounts and vested with specified powers or authority (as to issue writs as ordered by a court) <city clerk> b: one employed to keep records or accounts or to perform general office work c: one who works at a sales or service counter…"

We believe the activities of the BVS falls fall under the general category 3.000 use category, and specifically 3.400 of the Table of Permissible Uses. Clerical use is included in this category. This use is not allowed in the I, Industrial zoning district (See Page 3 of the TPU Attachment).

 

3.000 OFFICE, CLERICAL, RESEARCH AND SERVICES NOT PRIMARILY RELATED TO GOODS OR MERCHANDISEG

3.100 Professional offices of not more than 2,500 sq. ft. or 4 full-time employees

3.200 All category 3.000 uses, with the exception of research uses, occupying less than 50% of the gross floor area of a building otherwise in industrial use 3N 3

3.300 Research, laboratory uses

3.400 All remaining category 3.000 uses

The applicant does not agree with this interpretation, and has suggested the activities of the BVS be considered similar to three other land use categories in the TPU. These are discussed below:

1. The first proposal by the applicant is that the Planning Commission determine the activities of the BVS similar to those uses listed under land use category 4.000 of the TPU(industrial uses). They state the primary use of the building will be the processing of records and therefore similar to the processing of goods as allowed under 4:000. If so the BVS use could be permitted in the I, Industrial zone if an Allowable Use permit is obtained from the Planning Commission (See Page 4 of the TPU Attachment E).

4.000 MANUFACTURING, PROCESSING, CREATING, REPAIRING, RENOVATING, PAINTING, CLEANING, ASSEMBLING OF GOODS, MERCHANDISE AND EQUIPMENT

Our opinion is that the term processing as it relates to industrial activity has a very different meaning than processing relating to office or clerical activities. Processing as an industrial use means an activity where raw materials are turned into a new product. A clear indication of what type of uses and their characteristics that are to be accommodated in industrial zoned areas is found in the following section of the Land Use Code:

§49.25.240 I, INDUSTRIAL DISTRICT. The I, Industrial district is intended to accommodate industrial activity which includes manufacturing, processing, repairing and assembling goods. Because of noise, odors, waste and other impacts inherent in industrial activity, performance standards are applied. (Serial No. 87-49 ' 2 (part), 1987).

Typical examples of paperwork processing such as licensing, permitting, record keeping are office or clerical functions and do not have the same characteristic on are they similar to industrial activities. If it is determined that this use is a similar use to category 4.000 uses , the argument could be made to allow other uses involving the processing of paper into the industrial districts.

2. A second suggestion made by the applicant is that this use is similar to retail use, specifically use category 2.2000 of the TPU and therefore can be permitted with a Conditional Use permit in the I, Industrial zoning district. (See Page 3 of the TPU Attachment E).

2.000 SALES AND RENTAL OF GOODS, MERCHANDISE OR EQUIPMENT

2.200 Storage and display of goods with greater than 3N 3N 3

5,000 sq. ft. or 20% of the gross floor area of

outside merchandising of goods

 

Use category 2.200 is a retail use where the store has over 5000 square feet or over 20% of the gross floor area used for outside merchandising. This appears to be a misreading of the code because the BVS building will have no outside merchandising. Regardless of the outside merchandising issue, we would not compare document handling and processing as a similar use to sale of merchandise. The activity of obtaining records is more similar to permitting and licensing which are not considered a retail activity (the sale of goods). In addition, it was noted above that the activities relating to customer service are only 30% BVS activities.

3. Finally, the applicants suggest the BVS activities could fall under Section 3.200 of the TPU and therefore be permitted with an Conditional use permit in the I, Industrial zoning district. (See Page 3 of the TPU Attachment E)

 

3.000 OFFICE, CLERICAL, RESEARCH AND SERVICES NOT PRIMARILY RELATED TO GOODS OR MERCHANDISEG

3.100 Professional offices of not more than 2,500 sq. ft. or 4 full-time employees

3.200 All category 3.000 uses, with the exception of research uses, occupying less than 50% of the gross

floor area of a building otherwise in industrial use 3N 3

3.300 Research, laboratory uses

3.400 All remaining category 3.000 uses

Use category 3.200 is the case where a stand alone office use, if less than 50 % of the building area otherwise used for industrial type uses, can be allowed in the Industrial district if a Conditional Use permit is approved. The applicants contend that the vault and uses associated with keeping the records are storage and therefore an industrial use. They also contend that this use occupies the majority of the floor area, and therefore the remaining office type uses can permitted because they are less that 50% of the total floor area.

However, the records that are stored in the vault are described as being accessed as part of day to day activities. Storage, as shown in the TPU (SeePage 7 of the TPU, Attachment E) states that "goods" stored are not handled on the same lot they are stored.

Even if you could make the argument that the use of the vault and supply/storage areas constitutes a stand alone storage use, we do not calculate the storage use as being over 50% of the floor area. Therefore, the remaining office type uses can not be allowed under category 3.200. A breakdown of the building functions and square footages are shown on the attached site plan (See Attachment D).

Although this code interpretation applies Boroughwide, there is some of the merits of the particular site proposed for the BVS building. The area in the vicinity of this site is described as light industrial and that permits for nearby crusher and asphalt plant operations were turned down. However, these permits were approved but either were not built or the operation have ceased. A soil recycling plant and concrete plant have been approved in the vicinity and continue to operate. Numerous gravel operations in the Lemon Creek area also utilizes Anka St for access.

In addition, the AEL&P office building was mentioned as an office building allowed in an industrial area. This proposed office building was found to comply with Use Category 3.20 where an office use is allowed if it is less than 50% of other existing industrial and a Conditional Use permit is approved. The Conditional Use permit was obtained in 1993.

 

FINDINGS

Based on the analysis above the Director finds that:

1. The use described for the Vital Statistics Bureau building falls under the use Category 3.400 of the Table of Permissible Uses.

If the Planning Commission agrees with the applicant that the BVS operation is unique and that it does not directly fall under any use listed in the TPU, the Director believes that the most similar use category is still 3.400 and would make the following finding:

2. The use described for the proposed Vital Statistics Bureau building is most similar the use Category 3.400 of the Table of Permissible Uses.

 

RECOMMENDATION

Staff recommends the Planning Commission adopt the analysis and finding number 1.