DATE: August 8, 2001

TO: Planning Commission

FROM: Greg Chaney, Planner
              Community Development Department

FILE NO.: USE2001-00025

PROPOSAL: A Conditional Use Permit for a personnel use kennel for a maximum of 16 dogs.


GENERAL INFORMATION

Applicant:                 Judy Steffel and Jamie Sarzynski

Property Owner:       Judy Steffel and Jamie Sarzynski

Property Address:    24625 Glacier Highway

Legal Description:    USS 1375 Tract A

Parcel Code No.:     3-B41-0-101-008-0

Site Size:                 69,441 square feet

Zoning:                   RR, Rural Reserve

Utilities:                  On lot water and septic system.

Access:                  Glacier Highway

Existing Land Use: Single-family dwelling with temporary 8 dog kennel.

Surrounding Land Use:     Northwest - Rural Reserve, Vacant
                                        Southeast - Rural Reserve, Single Family Residence
                                        East - Rural Reserve (Glacier Highway)
                                        Southwest - Rural Reserve, CBJ Natural Area Park


PROJECT DESCRIPTION

The applicant requests a conditional use permit to allow a dog kennel previously approved for one year to become permanent. While the kennel was approved for 8 dogs during a one-year trial period, the applicant has requested the maximum number of dogs be increased to 16.


BACKGROUND

The applicant, Judy Steffel is a breeder of the rare Tibetan KyiApso breed. Information about the breed is contained in Attachments 1a, 1b and 1c.

The applicant moved to a parcel of land at 24625 Glacier Highway with the intent of raising and breeding Tibetan KyiApso dogs. The applicant indicated she was unaware at that time she would need a special permit to have a kennel in the rural 25 mile location. Concerned neighbors reported the large number of dogs to Dan Garcia, Community Development Department Zoning Inspector. Mr. Garcia informed Ms. Steffel that a Conditional Use permit was required to keep more than 5 dogs and she immediately applied for a Conditional Use permit (USE2000-00034). This permit was granted on July 25, 2000.

Under Conditional Use permit USE2000-00034, the applicant was allowed to establish a kennel for a maximum of 8 mature dogs. This permit was limited to a one year trial period primarily due to neighborhood concerns about noise and safety. One month before the year trial period came to a close, the applicant applied for a new permit in order to remain in compliance without letting USE2000-00034 lapse. Scheduling conflicts have delayed the hearing date but the application was filed approximately one month earlier than necessary.

The applicant currently has eight adult KyiApso dogs. Title 49, the Land Use Code defines a kennel as, "…a building in which six or more dogs more than 4 months of age are kept." The applicant’s lot is located in a Rural Reserve (RR) zoning district. The Table of Permissible Uses §49.25.300 Section 12.200 stipulates that kennels may be permitted in RR districts only if a Conditional Use permit is approved for that use by the Planning Commission. Pet owners who keep up to 5 dogs are not classified as kennels and are not regulated by the Conditional Use permit process. Therefore the applicant may have up to 5 dogs, even if the requested Conditional Use permit is denied.

The applicant indicated that she does not intend to breed dogs unless she has prior commitments for placing the pups. As a breeder, she indicated that the number of dogs in residence at any given time may vary. For this reason, the applicant has asked that the maximum number of dogs over 4 months of age be increased from 8 to 16.

ANALYSIS

Project Site – The kennel site is located at approximately 25 mile Glacier Highway just passed Amalga Harbor Road. The parcel is 69,441 square feet (1.6 acres). Glacier Highway runs along the front of the lot. The parcel is flanked on either side by private parcels and along the back side is a CBJ natural area park.

Project Design – See Attachments 2, 3a, 3b and 3c. A vegetative buffer currently exists between Glacier Highway and the fence which forms the front of the kennel. Fencing encircles the kennel area, which is accessed through a series of two gates. These gates are arranged in a similar fashion to an arctic entry, so that a person will have a closed gate either in front or behind them to control dog egress while a person is entering or exiting the kennel. The interior of the kennel is divided into 6 sections to allow separation of individual dogs as needed. The outer perimeter fencing encompasses the primary dwelling, greenhouse and shop and extends to the side and rear property lines. A small enclosure provides shelter for the animals from inclement weather.

The primary exterior fence is a "field fence" approximately six feet high and consists of 4" wire mesh. Toward the bottom of the fence, mesh size decreases to ¾". This fence is anchored to the ground along its entire length. Incorporated into the fence are two electric wires. An electric fence wire is strung roughly one foot above the ground to discourage dogs from touching the fence or from digging under the fence. A second electric wire is suspended near the top of the fence to discourage dogs (and bears) from attempting to jump or climb over the fence. When the applicant first moved to the property, there were incidents when her dogs roamed beyond the property limits but since this system was installed it seems to have been effective in containing the animals.

Traffic, Parking and Circulation – This application is for a private personal use kennel. The applicant has stated that she will not be accepting dogs on a temporary basis for boarding. As a result, the proposed kennel should not generate any traffic beyond what is normally associated with a single-family residence. Parking on the lot is sufficient for a single-family residence.

Noise – Barking has generated considerable concern from adjacent property owners. Don Madsen who owns the lot adjacent to the applicant’s northwestern property line submitted a letter in response to the current kennel proposal (Attachment 4). He states that a one year trial period was sufficient to determine that the dog kennel generated too much noise for the surrounding neighborhood. Further he states:

"The applicants were not able to control the barking of their dogs. The noise has been a constant disturbance to the neighborhood and if allowed to continue will decrease the value of the surrounding property."

Tina and James Brown who are property owners to the southeast of the kennel have also written letters to complain about dogs from the kennel generating undesirable levels of barking (Attachments 5 and 6). Mr. Brown’s letter contains the following statement:

"The dogs bark at just about anything. Us opening our back door, closing the car door, neighbors coming home, someone walking down the road or just about anything that gets their attention and it is a disconcerting thing to go for a walk with these dogs barking and trying to jump their 6’ electric fence trying to get to you."

He goes on to acknowledge the applicant’s extensive efforts to quiet the dogs but does not feel they have been sufficient. Tina Brown has similar feelings and expressed them in her letter. In her letter, she makes this statement:

"These dogs do still bark and when I hear them barking, I know they are barking at me and if they had a chance they would enter my yard and confront me. We do not use the north side of our yard because it will start the dogs barking, and since we are deemed to live with these dogs by Planning Commission, I avoid at all costs trying to make normal noises, because of the stress it causes me and my family."


Sue Jorgensen lives directly across Glacier Highway from the applicant and also sent a letter containing her thoughts about the situation over the last year (Attachment 7). Her comments include the following:

"We understand that some of the dogs have had their voice boxes cut but they are still very annoying when they start barking although it more closely resembles someone coughing continually over a loud speaker. Although the owners try to keep the dogs quiet, it is apparent that is an impossible task. When we pick up our newspaper, the dogs begin barking/coughing even though they cannot see us."

It is apparent from the above comments that after a one year trial, the immediate neighbors do not find the situation acceptable. To her credit, the applicant has gone to great lengths to address the noise problem (Attachment 2). She has placed plywood along the fence to partially shield the nearest neighbor (Brown household) from barking, requires dogs to wear "bark collars" when outside and has surgically debarked four of the dogs. Surgically altered dogs produce a muffled sound, which is significantly lower in volume than a normal bark. The remaining dogs have been fitted with "bark collars" which generate an electric shock when a dog barks. In addition, an audio/video monitor surveillance camera has been installed which is connected to a VCR and has video taped the site when the applicant is absent from the property. This has enabled the applicant to monitor dog behavior (including barking) when away from the site. This system is also used to monitor dog activity when the applicant is inside of the main house. Those dogs which have not been surgically debarked, are kept in the main house when no one is home to reduce sound generated from the site when it is not being monitored. These measures have done a great deal to reduce the level of noise emanating from the kennel and Gastineau Humane Society’s Animal Control Officer, Wayne Lyons, has not received any complaints concerning the applicant’s kennel during the last year (Attachment 8).

CBJ’s Land Use Code does not provide guidance concerning acceptable noise limits for barking dogs. The Animal Control section of CBJ’s code does not offer a measurable level at which barking would be defined as a nuisance (Attachment 9), it simply states:

"The keeper of an animal shall – Prevent the animal from disturbing a neighborhood or any number of persons by frequent or prolonged noise, barking, howling, or other noises."

The applicant feels she has taken reasonable measures to control the barking problem. Without measurable criteria, the issue of what is a nuisance is subjective and varies from person to person.

Public Health or Safety – The most important issue in connection with this application is: Does this proposal present a public safety risk? Adjacent property owner, Tina Brown indicated that when these dogs first moved to the property, 4 or 5 of them escaped to her yard. Apparently they confronted her and she remained in the house until the dogs were removed. This incident occurred prior to issuance of the first Conditional Use permit and prior to completion of the existing fence system. No further documentation of an escape has been received by this office, since that time.

According to Wayne Lyons, Animal Services Director, prior to moving to the existing kennel site, the applicant’s dogs were involved in documented attack incidents (Attachments 10 and 11). In these cases KyiApso dogs attacked other dogs. In two cases, dogs were attacked and severely injured by KyiApso dogs in the applicant’s care. One KyiApso was euthanasied as a result of these attacks. Further, Officer Lyons indicated that three dogs of the KyiApso breed have been declared "dangerous" or "potentially dangerous" animals during his tenure in Juneau. With this record of attacks on other dogs, these KyiApso dogs appear to present a serious threat to community safety if they were loose and uncontrolled.

As discussed above in the Project Description, the applicant has installed a substantial containment system. The primary exterior fence is approximately six feet high and is anchored to the ground along its entire length. Incorporated into the fence are two electric wires, one near the ground and a second electric wire suspended near the top of the fence. In addition, there is a "arctic entry" double gate entrance into the kennel, which allows humans to enter and exit while controlling dog movements in the compound. Since the containment system has been installed, it appears that this fence has successfully contained the animals on site. The applicant has indicated that her dogs have learned from being shocked not to approach the base of the fence in attempts to dig under it. Once they have learned that a shock from the fence is possible, the dogs are unlikely to attempt to dig under it during brief power outages. The applicant has had one experience with a bear which climbed a tree and got over the fence. It left by making a hole in the fence. This incident prompted the applicant to install the electric wire across the fence top to discourage bears from entering again.

Although the fence seems to be working well at the present time, it must be kept in good condition in order to function properly. The electric fence in particular must be well maintained in order to deliver a convincing shock. Power supply and wiring must be maintained. In addition, plants must be cleared away from the wire in order to prevent a short to ground. The standard wire mesh fence must be anchored to the ground as a safeguard against failure of the electric fence.

The applicant stated that she has a homeowner’s insurance policy and this policy does cover claims resulting from her pets. Staff contacted Nancy Leak with Shattuck and Grummett Insurance. She indicated that the majority of homeowner policies cover this type of claim but individual policies vary. Some policies will not cover particular breeds of dogs, others refuse coverage for different reasons.

Property Value or Neighborhood Harmony – The neighborhood consists predominately of large parcels with single-family residences. The size of parcels in the immediate area of the subject site vary from approximately 2 to 40+ acres. There is also a fair amount of CBJ Park land behind the parcel which is being managed as a natural area park.

Structures in the neighborhood are a mixture of mobile homes, older frame homes, metal storage buildings, and some relatively new frame residential buildings. Most buildings are set well back from Glacier Highway and mature vegetation provides visual screening. The applicant’s kennel is located in such a fashion that the facility is only visible when looking directly down the driveway. This arrangement is typical in the neighborhood.

Uses in the neighborhood are predominately residential. Some properties have construction equipment, stored vehicles and miscellaneous material stored on the sites. Many property owners have dogs and occasionally they have been reported loose in the neighborhood.

It is difficult to substantiate the impact of this proposal on values of other properties in the neighborhood. In the past, staff has consulted with appraisers who have indicated that Alaska is somewhat unique since there are a multitude of uses already existing and only those uses which are documented to have adverse impacts, can be predicted to have negative impacts on adjacent property values. Sled dog kennels are a well established Alaskan tradition and therefore are not out of character in rural areas of the state. Staff contacted the Fairbanks Northstar Borough’s Planning Office and was informed that they handle many similar applications. Kennels tend to be the most controversial permit applications they process and often receive the most spirited opposition from adjacent property owners. Based on lot size and number of dogs, the Fairbanks planner indicated that they would probably recommend denial of this kennel application.

As a personal use kennel, the facility does not generate any unusual traffic to the site. Based on staff site visits, the operation is kept orderly and clean. Significant measures have been taken to confine dogs to the property. When initially informed of noise problems, the applicant has taken considerable measures to address the situation. She remains actively engaged in minimizing noise from barking dogs in her care. If this Conditional Use permit application is denied, the applicant may keep five adult dogs. For these reasons, an eight dog kennel is not anticipated to substantially impact adjacent property values significantly more than a five dog kennel would. Sixteen dogs would undoubtedly cause significantly more noise.

Number of Dogs – The applicant has requested that the maximum number of dogs be set at 16. This would allow for additional breeding and the possibility of accepting "returned" dogs.

Staff has given considerable consideration to this issue. It is understandable that there may be times when it would be desirable for the applicant to keep more than the current eight dogs in residence. On the other hand, several neighbors have expressed extreme dissatisfaction with the current level of barking emanating from the existing kennel. While the concerns of neighboring property owners are quite understandable, denial of this application will not remove most of these dogs from the site. If this application is not approved, the number of dogs will probably be reduced from eight to five. If the number of dogs is too low to be classified as a "Kennel", no conditions will be in force over the operation of the site

Considering the extreme lengths that the applicant has put in place to confine her dogs as well as to reduce noise from barking, it seems that the current situation could be characterized as marginally tolerable for the neighborhood since a five dog kennel would be allowed outright without conditions. Nothing in this permitting process exempts the applicant from provisions of CBJ Chapter 08.45.010 Objectionable Animal Section (1) which prohibits animals from disturbing a neighborhood with frequent or prolonged noise. Therefore staff is recommending that the maximum number of dogs over four months of age be limited to the current maximum of eight and not sixteen as requested by the applicant.

Conformity With Adopted Plans - The proposed kennel is located in an area which is designated as Resource Development (RD) in the Juneau Comprehensive Plan. Resource Development means, "Land to be managed primarily to identify and conserve natural resources until specific land uses are identified and developed; minimal residential development may occur. Uses may include small-scale, visitor oriented, seasonal recreational facilities."

The CBJ Land Use Code implements the Comprehensive Plan through zoning and regulations. The kennel area is zoned Rural Reserve which "is intended for lands primarily in public ownership managed for the conservation and development of natural resources and for future community growth. In addition, recreation cabins, lodges and small seasonal recreational facilities may be allowed." The Table of Permissible Uses in the Land Use Code indicates that a kennel requires a Conditional Use Permit in the Rural Reserve zoning district. Kennels are only allowed in this zone if approved by the Planning Commission. Therefore, the proposed kennel Conditional Use application is found to be in conformity with CBJ’s adopted plans.

Juneau Coastal Management Program – The proposed development was reviewed for compliance with CBJ§49.70.900, the Juneau Coastal Management Program. Staff analysis reveals that no enforceable policies of the JCMP apply to the requested Conditional Use permit.


FINDINGS

CBJ '49.15.330 (e)(1), Review of Director's Determinations, states that the Planning Commission shall review the director's report to consider:

1. Whether the application is complete; and,

2. Whether the proposed use is appropriate according to the Table of Permissible Uses;

3. Whether the development as proposed will comply with the other requirements of this chapter.

The commission shall adopt the director's determination on the three items above unless it finds, by a preponderance of the evidence, that the director's determination was in error, and states its reasoning for each finding with particularity.

CBJ '49.15.330 (f), Commission Determinations, states that even if the commission adopts the director's determination, it may nonetheless deny or condition the permit if it concludes, based upon its own independent review of the information submitted at the public hearing, that the development will more probably than not:

1. Materially endanger the public health or safety;

2. Substantially decrease the value of or be out of harmony with property in the neighboring area; or,

3. Not be in general conformity with the comprehensive plan, thoroughfare plan, or other officially adopted plans.

Per CBJ '49.15.300 (e)(1)(A thru C), Review of Director's Determinations, the director makes the following findings on the proposed development:

1. Is the application for the requested conditional use permit complete?

Yes. We find the application contains the information necessary to conduct 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 proposed use 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 12.200 for the Rural Reserve (RR) zoning district.

3. Will the proposed development comply with the other requirements of this chapter?

Yes. The proposed development complies with other requirements of this chapter. Notice was provided in the Juneau Empire under "Your Municipality" which ran on Friday, August 3, 2001. A public notice sign was posted on the site at least 14 days prior to the meeting and notice was mailed to owners of record of all property within 500 feet of the subject property.

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

No. The applicant has taken measures to secure the kennel area. There have been no incidents of dogs escaping the compound since it was completed. With proper maintenance, the animals can be expected to remain inside the fenced area. Therefore the kennel as it currently exists does not materially endanger the public health and safety. If in the future dogs do escape the fenced area, this finding should be revisited.

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

No. The kennel is located in a rural area with mature vegetation. Many other property owners in the area have one or more dogs. Five dogs are allowed on residential property without a Conditional Use permit and would not be unusual in a rural setting such as this. The type of personal use kennel proposed will not generate significant traffic to the site. Considering the existing containment system, if the fence system is well maintained, it is unlikely that dogs will escape the kennel area. Multiple steps have been taken to mitigate noise from the property. The applicant would be allowed to keep five dogs without a kennel Conditional Use permit and there is little material difference between the potential noise created by five versus the eight existing dogs. In consideration of the measures taken by the applicant to minimize noise, it is doubtful that the kennel will generate more noise than five typical dogs, however sixteen dogs would represent a significant increase in noise. For these reasons, the kennel, if limited to eight dogs, would not seem to substantially decrease the value or be out of harmony with neighboring properties.

6. Will the proposed development not be in general conformity with the land use plan, thoroughfare plan, or other officially adopted plans?

No. The proposed kennel is within an area designated as Resource Development (RD) in the Juneau Comprehensive Plan. The property is zoned Rural Reserve and a kennel is allowed with a Conditional Use permit if approved by the Planning Commission. Therefore the application is in conformity with officially adopted plans of the City and Borough of Juneau.

7. Will the proposed development comply with the Juneau Coastal Management Program?

Not Applicable. Base on the preceding staff analysis, it is found that no provisions of the Juneau Coastal Management Program apply to the proposed development.


RECOMMENDATION

It is recommended that the Planning Commission adopt the Director's analysis and findings and grant the requested conditional use permit. The permit would allow the applicant (Judy Steffel) to continue to use a personnel use kennel to keep a maximum of eight (8) dogs over four months of age. The approval is subject to the following conditions:

  1. If the Community Development Department Director receives documentation which establishes that a dog (or dogs) from the applicant’s kennel were found unattended beyond the applicant’s property limits, the Director (after consideration of the facts) may require reconsideration of this Conditional Use Permit by the Planning Commission. During its review, the Planning Commission may rescind, modify or leave intact the current permit.
  2. The applicant shall maintain a secure fencing system to assure the dogs are not able to leave the property without adequate control. This containment system shall consist of a minimum of a 6 foot high fence surrounding the entire kennel site. The fence shall have at least two electric wires. One at the top of the fence and one near the ground. This electric fence system shall be well maintained and operational for the facility’s operational life. Vegetation shall not be allowed to come in contact with live wires in such a fashion that it reduces its effectiveness. The double gate "arctic entry" shall be maintained in good condition as a component of the kennel.
  3. The applicant shall house no more than eight (8) dogs of more than four months of age on the subject property.
  4. The applicant shall assure that bark control collars are in operational condition while worn by the applicant’s dogs.
  5. The applicant shall maintain an insurance policy (such as homeowner’s insurance) which covers personal liability for damage or injury which, might be caused by the applicant’s dogs if they escape from the facility.
  6. Nothing in this permit excludes the applicant’s kennel operation from any provisions of CBJ Chapter 08.45.010 "Objectionable Animals".