DATE: August 23, 2001
TO: Planning Commission
FROM: Oscar Graham, Planner
Community Development Department
FILE NO.: USE2001-00017 - Allowable Use
PROPOSAL: An allowable use permit for an 8,000 square foot building to be used for non-specified industrial uses. The building is two levels with 4,000 square feet per level. The building will include a single caretaker residence. (Attachment A: Application As Amended In August 13, 2001 Letter from Applicant)
Applicant: Aniakchak, Inc.
Property Owner: Aniakchak, Inc.
Property Address: 1801 Anka Street (Attachment B; Vicinity Map)
Legal Description: RSH II Lot 3
Parcel Code Number: 5-B12-0-131-002-0
Site Size: 9,9841 square feet
Zoning: I- Industrial
Utilities: CBJ Water & Sewer
Access: Anka Street
Existing Land Use: Vacant 8000 square foot structure
Surrounding Land Use: North - Lemon Creek
South - Projected Extension of Anka Street (Easement)
East - Vacant Zoned Industrial/City Scales/Mineral Extraction
West - Mixed Industrial
The applicant requests an allowable use permit for the expansion of a 5000 square foot industrial structure to include a second story that will bring the total square footage to 8000 square feet. The completed structure will represent a four-plex consisting of four bays proposed for unspecified industrial uses on the ground level with office space and a single residence (caretakers quarters) located on the second story. The proposal includes a circulation and parking component consisting of 16 spaces located between the structure and the roadway. Back out parking would be provided onto the roadway which is currently maintained as an easement. (Attachment C: Proposed Site Plan/Floor Plan)
A building permit (BLD2000-812) for a single story 5000 square foot structure was approved in March 2001. The building included provisions for a driveway and parking area which did not require backing out of spaces onto the roadway. The proposal maintained a 24-foot separation between the building and road for internal traffic circulation. Setbacks (including the streamside setback of 50 feet) were approved through review of a Surveyor’s Statement of Setback Compliance (Attachment D: Site Plan Approved Under BLD2000-00812/Surveyor’s Statement of Setback Compliance)
The building permit was amended to provide for a second story. Expansion of the structure from 5000 to 8000 square feet required approval of an allowable use (AU) permit per the Table of Permissible Uses10.210. Work was initiated in advance of the issuance of an AU permit based on the director’s approval. An application requesting authorization of an AU permit for the building under construction and four additional identical structures was submitted on May 3, 2001.
A site inspection was conducted by Oscar Graham on June 26, 2001 prior to preparation of a staff report. Observation of the streamside setback suggested that the building under construction was located approximately 30 feet landward of the active channel. Subsequent review of application materials indicated that the site plan submitted in support of the AU depicted a steam setback of approximately 105 feet. The Surveyor’s Statement of Setback Compliance certified a Streamside setback of 50 feet.
Stream setback requirements are established under the habitat provisions of Title 49 as follows:
§49.70.310 Habitat. (a) There is adopted the sensitive areas map dated September 9, 1987, as the same may be amended from time to time by the assembly by ordinance. Development in the following area, some of which are designated on the map, is prohibited:
(4) within 50 feet of the banks of designated stream corridors.*
*Lemon Creek is designated in Appendix B of the Comprehensive Plan
(b) In addition to the above requirements there shall be no disturbance in the following areas:
§49.70.950 Habitat. (a) Habitats in the coastal area which are subject to the Alaska Coastal Management Program include:
(7) Rivers, streams and lakes.
(b) The habitats contained in this subsection (a) of this section shall be managed so as to maintain or enhance the biological, physical and chemical characteristics of the habitat which contribute to its capacity to support living resources.
(f) All structures and foundations located adjacent to streams or lakes listed on Table VI-2 of Appendix C of the JCMP** shall have a 50 foot setback from each side of the stream or lake measured from the ordinary high water mark, where feasible and prudent; provided, docks, bridges, culverts, and public structures whose purpose is access to or across the stream or lake are not subject to this policy, and provided further, uses which must be in or adjacent to the stream or lake in order to function, such as mining activities, fish culturing, water supply intakes and similar uses, are exempt from the setback requirement. The setback shall be vegetated or revegetated, where feasible and prudent, and such vegetation or revegetation shall be kept or arranged to maximize shade on the stream.
**Lemon Creek is listed in Table VI-2 of Appendix C of the JCMP.
It is important to note that there are three points referenced in the above habitat provisions utilized for establishing the streamside setback:
§49.70.310 references 1. stream banks and 2. corridors.
§49.70.950 references 3. ordinary high water mark (OHWM)
Banks and corridors describe a commonly used and generally recognized point of reference relative to stream systems. The banks border the stream corridor that runs between them. The OHWM is located along the banks at the outer limit of the corridor and is generally recognized as a physical mark caused by the prolonged action of water. The most widely used definition of OHWM has its origins in the definition utilized by Justice Curtis of the U.S. Supreme Court in 1851 as follows:
"This line is to be found by examining the bed and banks and ascertaining where the presence and action of waters are so common and usual and so long continued in all ordinary years as to mark upon the soil of the bed a character distinct from that of the banks, in respect to the soil" itself".
The definition has been augmented over the years to include consideration of topography and vegetation communities but continues to rely principally upon the presence and action of water leaving a distinct mark which separates the bed and bank. The ordinary high water mark is widely utilized as the primary point of reference in establishing riparian setback and buffer standards for resource protection purposes. In the case of the subject property the OHWM is located along the bank at a distinct line of transition from the scoured stream channel to terrestrial vegetation community. The OHWM is readily identifiable along the subject stream segment and is coexistent with the bank and corridor references under §49.70.310.
Review of the original AU application suggested to the Community Development Department that a variance would be an appropriate mechanism to address the existing building and additional structures proposed for the site. This approach was based on the recognition that the location of the site between the road and Lemon Creek represented an extraordinary situation and unique physical feature of the property. A variance was applied for on August 13, 2001 for the single existing building. No submittal fee was charged for the variance application. The variance requested a streamside setback of 25 feet instead of the 50 feet required under Title 49. The actual relief sought was confirmed through on-site measurement as 31feet. Public Notice was provided to adjacent property owners and a hearing notice was posted on the subject property. The applicant subsequently withdrew the variance request on August 21, 2001 and asked that the AU application be presented to the Planning Commission. (Attachment E: Photographs)
Project Site – The project site is located on a parcel of land (RSH II, Lot 3) established through minor subdivision earlier this year. A 15 lot preliminary plat SUB2000-000012 was approved by the Planning Commission on August 7, 2000. The property is located between Lemon Creek and an eastern extension of Anka Street which is currently under construction. The narrow nature of the property represents a challenge to development. The Lemon Creek corridor is the primary site constraint.
Project Design – The subject proposal is to complete and occupy the 8,000 square foot two story building for industrial, storage, office and residential purposes. The structure is provided with a single caretaker’s residence consistent with the Table of Permissible Use 1.000 which provides for a single-family residence as an owner caretaker residence that is accessory to an existing permitted use in the Industrial zone.
Traffic – The roadway, which is currently being constructed through a joint agreement with the City (to City standards), will be held in private ownership under an easement but may be dedicated to CBJ in the future. The road will provide an eastern extension linking existing Anka Street to the mineral resource area east of the subject property and to the upper Lemon Creek Valley. The road will be heavily traveled by industrial vehicles associated with pit activities to the east.
Parking and Circulation – Circulation to the interior of the site would be provided through direct access to the front of the structure adjacent to the road. Parking is proposed through sixteen spaces which will access the road on a back out basis. While the number of spaces provided is consistent with the industrial, non-customer service office and residential requirements of §49.40.210 and includes provisions for accessibility, the back out configuration presents safety problems. §49.40.220 Parking Area and Site Circulation Review Procedures (a) Purpose reads:
"The purpose of these review procedures is to ensure that all proposed parking and related site access areas provide for adequate vehicular and pedestrian access and circulation; that all parking spaces are usable and are safely and conveniently arranged, that sufficient consideration has been given to off street loading and unloading, that the parking area will be properly drained and that such areas will not be unsightly."
Similarly §49.40.230 Parking And Circulation Standards. (a) Purpose reads:
"Provision for pedestrian and vehicular traffic movement within and adjacent to the site shall address layout of parking areas, off-street loading and unloading needs, and the movement of people, goods, and vehicles from access roads, within the site, and between buildings and vehicles. Parking areas shall be attractively landscaped and shall feature safely and conveniently arranged parking spaces."
Because back out parking directly onto the roadway is proposed for this development the Community Development Department has determined that the parking and circulation proposal is inadequate. Given the context of the subject proposal within an area of heavy industrial traffic the proposal constitutes a compromise of public health and safety. Implementation of the proposed parking plan may also inhibit future dedication of the road and preclude additional subdivision of the property.
Landscaping – §49.50.300 Minimum Vegetative Cover, requires that a minimum of 10 percent of the site be maintained with live vegetative cover. Although the site is largely cleared of vegetation, the riparian fringe of Lemon Creek located along the southern bank of the stream corridor includes a vigorous growth of scrub alder and ground cover. The vegetated area exceeds the 10 percent coverage required.
Exterior Lighting - The applicant has not submitted exterior lighting plans for the project. When the lighting design and specific luminaires are selected, CDD staff should review the exterior lighting proposal to assure that glare would not be caused to adjacent properties or roadways. Because of the Industrial nature of the vicinity glare should not effect residential uses.
Signs - A separate permit process per CBJ §49.45, Signs, requires that all signs proposed by the development be submitted to CDD staff for review and approval.
Juneau Coastal Management Program - The proposed development was reviewed for compliance with CBJ §49.70.900, the Juneau Coastal Management Program. The analysis reveals that habitat provisions of Section §49.70.950 are not satisfied. Section §49.70.950 (f) requires that:
"All structures and foundations located adjacent to streams or lakes listed on Table V1-2 of Appendix C of the JCMP shall have a 50 foot setback from each side of the stream or lake measured from the ordinary high water mark, where feasible and prudent; provided, docks, bridges, culverts, and public structures whose purpose is access to or across the stream or lake are not subject to this policy, and provided further, uses which must be in or adjacent to the stream or lake in order to function, such as mining activities, fish culturing, water supply intakes and similar uses, are exempt from the setback requirement. The setback shall be vegetated or revegetated, where feasible and prudent, and such vegetation or revegetation shall be kept or arranged to maximize shade on the stream."
Additionally Section §49.70.950 (f) requires that:
"Each development which adjoins a river or stream which has been degraded by previous human activity shall, as part of its development plan, include provisions for the rehabilitation of the stream or river, and shall be approved by the Alaska Department of Fish and Game. Such provision shall be limited to removal of debris, removal of abandoned machinery and vehicles, grading and stabilization of banks and related clean up activities, and shall include preservation or restoration of riparian vegetation. Restoration shall not be required beyond that needed to return the area to natural appearance and function…"
CBJ §49.15.320 (e), Decision, states that the Planning Commission shall consider the allowable use permit application and shall review the Community Development Director's recommendation with respect to:
1. Whether the application is complete;
2. Whether the requested permit is appropriate according to the Table of Permissible Uses;3. Whether the development as proposed will comply with the other requirements of this chapter; and,
4. Whether conditions are necessary for approval.
The commission shall approve the application and grant the permit unless it finds, by a preponderance of the evidence, that one or more of the criteria have not been met. In either case the commission shall adopt written findings setting forth the basis for its decision.
Per CBJ §49.15.320 (e)(1 thru 4), Decision, the director makes the following findings on the criteria for granting the requested allowable use approval:
1. Is the application for the requested allowable use permit complete?
Yes. We find the application contains the information necessary to conduct a full review of the proposed operations. The application submittal by the applicant, including the appropriate fees, substantially conforms to the requirements of CBJ Chapter 49.15.
2. Is the requested permit appropriate according to the Table of Permissible Uses?
Yes. The requested permit is appropriate according to the Table of Permissible Uses. The permit is listed at CBJ §49.25.300 section 10.210 for the Industrial zoning district.
3. Will the proposed development comply with the other requirements of this chapter?
No. The proposed development does not comply with the streamside setback requirements listed under Sections §49.70.310 and §49.70.950. The 50-foot setback requirement is not met. The setback for the existing structure is 31 feet.
4. Are conditions necessary for approval of the requested allowable use permit?
Yes. Based on the preceding staff analysis, it is found that conditions are necessary for approval of the requested permit. Conditions however, are not sufficient to provide approval of the subject allowable use permit as currently requested.
Per CBJ §49.70.900 (b)(3), General Provisions, the director makes the following Juneau Coastal Management Program consistency determination:
5. Will the proposed development comply with the Juneau Coastal Management Program?
No. Compliance with Section §49.70.950 (e) and (f) relating to stream setbacks and restoration of areas degraded by previous human activity have not been addressed and satisfied.
It is recommended that the Planning Commission adopt the director's analysis and findings and deny the requested allowable use permit.