DATE: April 18, 2001

TO: Planning Commission

FROM: Sylvia A. Kreel, Planner
Community Development Department

FILE NO.: USE2000-00040- Conditional Use

PROPOSAL: Remand by the Assembly for further consideration of a conditional use permit for a commercial resort within the D-1 zoning District at North Tee Harbor

GENERAL INFORMATION

Applicant: Daniel Malick & Kristine Trott

Property Owner: Daniel Malick & Kristine Trott

Property Address: 19200 Williwaw Way

Legal Description: Lot 2A and Lot 1A USS 377

Parcel Code Number: 8-B37-0-105-010-1, 8-B37-0-105-011-1,

Site Size: Approximately 5.15 acres

Zoning: D-1, Single-Family/Duplex Residential

Utilities: Private Water and On-Site Sewer

Access: Williwaw Way

Existing Land Use: Residential, with a one-bedroom short-term rental cabin.

Surrounding Land Use:North - D-1, Single-Family/Duplex Residential
South - D-1, Single-Family/Duplex Residential
East - North Tee Harbor
West - D-1, CBJ Park

BACKGROUND

Introduction
This project was reviewed and denied by the planning Commission on September 26, 2000. The applicant, Dan Malick, appealed the decision to the Assembly. The Assembly heard the appeal on February 26, 2001. The Assembly remanded the project back to the Planning Commission.

The Assembly directed the Planning Commission to "revisit findings 4, 5 and 6 for the purpose of determining whether the record as augmented in this appeal, supports a finding that it is more probable than not that the project meets the standards." Accordingly, this review will focus on an analysis of the record, as augmented, and finding 4, 5 and 6.

Planning Commission Action
On September 26, 2000 the Planning Commission reviewed USE2000-00040, a request for a conditional use permit to operate a resort, including lodge and camping facilities, in the D-1 zoning district. The Planning Commission denied the request. (Notice of Decision attached). The denial was based on finding 4, 5 and 6 as follows.

4. Will the proposed development materially endanger the public health or safety?

Yes. Visibility along the access drive is not adequate. There are steep, narrow stretches of road that have just a single lane width, with several blind spots. The single lane access into the subject property has insufficient width and insufficient turnouts to safely accommodate the commercial resort and associated activities as proposed. The Planning Commission finds that the proposed development will materially endanger the public safety.

5. Will the proposed development substantially decrease the value of or be out of harmony with property in the neighboring area?

Yes. The Planning Commission finds that the size and scope of the proposed project is not in harmony with property in the neighboring area. The Planning Commission finds that there are a number of uncertainties related to the frequency of activities and the number of people associated with each activity. This uncertainty results in little control. Conditions which could be applied to gain control would be impossible for the city to enforce and would depend on neighborhood policing, a practice which is not consistent with neighborhood harmony. Additionally, the Planning Commission finds that the proposed tent sites have the potential to impact the property value of adjoining properties.

6. Will the proposed development be in general conformity with the land use plan, thoroughfare plan, or other officially adopted plans?

No. The subject property is shown on sub-area map 2B in the CBJ Comprehensive Plan with a land classification of RDR, Rural Dispersed Residential. RDR is defined in the Comprehensive Plan as follows:

Dispersed, very low-density development not provided with municipal sewer or water. Densities are intended to permit one dwelling unit per acre, but larger lot sizes may be appropriate based on existing platting and capability of the land to accommodate on-site septic systems and wells. Uses may include small scale, visitor oriented, seasonal recreational facilities. Additionally, Policy 2.1.2 states:

It is the policy of the CBJ to encourage tourism, convention and other visitor related activities through the development of appropriate facilities and services, while protecting Juneau’s natural and cultural attractions for local citizens and visitors alike, and to participate in the accommodation of the future growth of tourism in a manner that addresses both community and industry concerns.

The Planning Commission finds that due to the potential to impact property values and neighborhood harmony, as discussed in finding 5, the proposal is inconsistent with the Comprehensive Plan’s direction to accommodate the future growth of tourism in a manner that addresses community concerns. Additionally, while the RDR land use classification includes small scale, visitor oriented, seasonal recreational facilities, the Planning Commission finds that the proposed scale of the project which includes a degree of uncertainty, would not meet the determination of "small scale".

Assembly Action on the appeal
The applicant appealed this decision to the Planning Commission. After a hearing, the assembly remanded the project back to the Planning Commission. The Decision, dated March 21, 2001 (attached) explains the reasoning behind the Assembly’s action. Generally, its concerns were as follows:

Finding No. 4 – Public Health and Safety:
The findings made by the Commission, that the proposed development would materially endanger the public health and safety because "visibility along the access drive is not adequate" and because sections of the road are "steep" and "narrow" is not supported by clearly articulated facts.

Finding No. 5 – Neighborhood Harmony and Property Values
This finding was not supported by substantial evidence. The assembly found that while the Planning Commission found the project to be out of harmony with the neighboring property, the commission did not explain why the project would be out of harmony. Additionally, "uncertainty" regarding frequency of activities and numbers of people is not enough to make a finding. Rather, the Commission must find it "more probable than not" that the project is out of harmony with the neighboring property. Additionally, the term "lack of control" is used in the Planning Commission’s decision. However, the meaning of the term is not explained. Also, the planning commission’s finding regarding property values suffers from a lack of rigor. By use of the wording "a potential" to impact, the Commission sees only a possibility of impact, and is unwilling to say that it is more likely than not such an impact will occur. The assembly ruled that the Commission must be more than "uncertain" about neighborhood harmony and must find greater than "potential" impacts.

Finding No. 6 – Conformity with Official Plans.
This finding was not supported by substantial evidence. Also, the term "small scale" was not defined. In order for the Commission to apply Policy 2.1.2 of the Comprehensive Plan, it should identify: (1) which concerns are at stake; (2) How they are concerns of the entire community and not just the concerns of one neighborhood, and (3) how they are concerns of the tourism industry rather and not just the concerns of one business.

Assembly Direction to the Planning Commission
In remanding the project back to the Planning Commission, the assembly directed the Commission to:

  • Revisit Findings 4, 5 and 6; and :
    1. Determine whether the record, as augmented in the appeal, is sufficient to support a finding that it is more probable than not that the project meets the standards of CJ 49.15.330 (f) (1)-(3).
  • If the evidence is not sufficient, than the commission has to decide if:
    1. A rehearing could reasonably be expected to provide the evidence; or

    2. Lack of evidence is due to an incomplete application warranting denial under 49.15.330(e)(1)(B).

    (Note: If the Planning Commission determines that the record is sufficient to make the findings, a subsequent hearing date shall be set to make the findings and set conditions as appropriate.)

    ANALYSIS - The record on Appeal

    The proposal as originally presented:
    The project as originally presented by the applicant includes the following:

    1. Luxury Bungalow – one bedroom unit, sleeps 4
    2. Bunkhouse-style Lodge – 2 bedroom unit, sleeps 12
    3. Four, 8-foot by 10-foot tent platforms Shower and bathroom building, 6 feet by 10-feet.

    The Malick's residence will remain on the site.

    The primary use of the facilities would be for short-term rental on a daily or weekly basis to visitors to the Juneau area. The accommodations would provide guests with easy access to the water and to the CBJ park. While these are amenities for the guests, the applicant has indicated that they will not be providing any kind of organized trips from their facility. The applicants will not be renting kayaks or providing fishing trips or hikes through the park. Guests may choose to arrange for their own such trips. Trips arranged by guests may or may not originate from the Malick's property.

    As a secondary use, the applicant would like to also make the lodge building available for meeting space. The applicant has indicated that the space could accommodate a maximum of 20 people for an effective meeting. Additionally, the subject property is just over 5 acres in size. It is possible that the property would be used from time to time for events such as weddings, family reunions, retreats and the like.

    Augmentation of the record:
    The record of the proceedings before the Commission was presented to the Assembly (attached). In his opening briefs, Mr. Malick introduced new material to the record. The briefs are attached as labeled. We have highlighted the new information. The new material may be found on the following pages:

    1. Opening Brief – Pages 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 19, 20, and 21.
    2. Rebuttal Brief - Pages 4 and 7

    The additional information submitted by Mr. Malick concerns issues addressed in Findings 4 and 5 and 6. In particular:

    Safety of Williwaw Way: The applicant provides some information regarding sight distances and pullouts and the distance a vehicle would have to back up. The applicant characterizes the road as meeting sight distance standards of AASHTO. He notes that 50 feet of sight distance is required; that there is 120 feet of sight distance at the rising and curving portion of the road; and 200 feet at other locations. The applicant also notes that pullouts are primarily for convenience and not for safety. The applicant compares Williwaw Way to the road which accesses the SAGA Lodge and characterizes the SAGA Lodge access road as being developed to the same or worse standards as Williwaw Way, based on its length , width and number of pull outs. The applicant has provided pictures of Williwaw Way and pictures of the SAGA Lodge access road. The applicant notes that conversations with the Juneau Police Department and Alaska DOTPF indicate that there are no statistics to indicate any level of endangerment to public health and safety related to on-coming traffic on single lane driveways in Juneau or around the state. The applicant provides commentary regarding driving speeds and how Williwaw Way does not encourage high driving speeds due to the use of traffic calming elements in its design, particularly its winding nature and minimal though sufficient width.

    Property Value: In additional to much commentary regarding the effects the proposed lodge would have on property value in the area, Mr. Malick sites several CBJ codes which limit camping within the City and Borough of Juneau. He notes that camping is permitted on 3 CBJ lots and on the cemetery which are all located in the area. He notes that neither these properties nor the CBJ park property have public rest room facilities.

    Neighborhood Harmony: The applicant provides much discussion on neighborhood harmony and on what constitutes the North Tee Harbor Neighborhood. The record was augmented by the inclusion of a map showing his interpretation of the North Tee harbor neighborhood and a map noting which property owners were not opposing, opposing and mute on the approval of the requested conditional use permit.

    Scale: The applicant augmented the record with photos of properties in North Tee Harbor and of his site. Additionally, he notes that the property closest to his has a 3,800 square foot, one story structure on it.

    Conditions: Finally, in the opening brief, page 21, the applicant suggests the following conditions be applied to the project:

    1. Prior to operation as a lodge, the cistern on the property shall be fitted with a coupling device, approved by the Fire Department, compatible for fire truck hook up.
    2. The applicant shall maintain the roadway in the winter months for fire department access.
    3. Use of the site by commercial or overnight guests and day users, for meetings or otherwise, shall not exceed a total of 28 people per day, with the exception of 20 times a year wen larger events are permitted. If requested by the City, the applicant will annually report the number of times the limit of 28 has been exceeded as documented by resort operating records.
    4. The appellants shall encourage overnight guests and meeting participants to carpool to the site.
    5. Any paid or guided use of the Park land must be permitted before use in accordance with Commercial Use of Park Property, CBJ 67.01.090(I).
    6. The applicant shall maintain the road so it does not create erosion or drainage problems for Park land.
    7. Any new exterior lighting shall be shielded so as to minimize visual impact.

    Revisitation of Findings 4, 5 and 6 in view of the augmented record
    4. Will the proposed development materially endanger the public health or safety?

    In this project public safety is directly tied to the ability of Williwaw Way to accommodate all trafffic associated the resort facility in a safe manner.
    Williwaw Way is a one-lane road, as it is too narrow for two vehicles to pass within the width of the roadway. Because this single lane road carries traffic both in and out of the subject property, it is by definition a two-way road. This project would be served by a one-lane, two-way road.
    In the appeal, the assembly determined that the Planning Commission’s finding that the road is too narrow and steep to accommodate safe travel to be subjective without sufficient evidence. While the applicant provided some sight distance measurements, the applicant has not presented a complete depiction of the design features of Williwaw Way. To objectively determine whether Williwaw Way is safe for public travel, staff recommends that the applicant be directed to show that the roadway meets or exceeds the American Association of State Highway and Transportation Officials (AASHTO) standards for the minimal one-lane, two-way roadway. The Planning Commission should be presented either with a survey showing all AASHTO standards for one-lane, two-way roadways are met or with certification by a licensed professional engineer that such standards are met.

    5. Will the proposed development substantially decrease the value of or be out of harmony with property in the neighboring area?

    We believe the record is insufficient with regard to both property value and neighborhood harmony. Staff should be instructed to contact CBJ assessors regarding impact to property values.
    Neighborhood harmony is difficult to determine in a quantifiable manner. Neighborhood harmony is related to such things as traffic, noise and other impacts. If the impacts associated with development are comparable to that generated by other properties in the area, than a development could be considered in harmony with the neighborhood. However, if the impacts significantly exceed that generated on other properties, than a project may not be in harmony with the neighborhood. That threshold is difficult to determine. In this particular project, traffic appears to be the biggest point of concern with regard to neighborhood harmony. Staff recommends that the Planning Commission direct staff to do further research into the traffic expected to be generated by the proposed resort.
    Additionally, Many of the neighbors indicated that they did not think a commercial use was appropriate in a D-1 zone. However, our Land Use Code does provide for this use as a conditional use.

    1. Will the proposed development be in general conformity with the land use plan, thoroughfare plan, or other officially adopted pans?
      With reference to the Comprehensive Plan, Policy 2.1.2, the Assembly provided a different interpretation of the policy than did the Planning Commission.

    At the original hearing, the Planning Commission made the determination that the proposed scale of the project, which includes a degree of uncertainty, would not meet the determination of small scale. To substantiate this finding, in either approving or denying the requested Conditional Use, the Planning Commission should determine what uncertainties still remain and request the applicant for clarification. Additionally, the Planning Commission should direct staff to define "small scale" and then provide information comparing the proposal to the definition. The information provided by the applicant in his opening brief compares the physical size of the structures on his lot to those on other properties in North Tee Harbor. While we believe that the physical size of a development provides some basis for comparison of scale, it is really the level of use or actual activity, which must be considered.

    RECOMMENDATION

    Staff recommends that the Planning Commission adopt staff’s analysis and find that the record, as augmented in the appeal, is not sufficient to support a finding that it is more probable than not that the project meets standard CBJ 49.15.330 (f)(1–3). However, we find that this evidence could reasonably be expected to be provided at a rehearing of the case.

    To this end, staff recommends that the Planning Commission direct the staff to provide additional information regarding the following:

  • Additionally, staff recommends that the Planning Commission direct the applicant to provide additional information regarding the following: