Loading...
HomeMy WebLinkAboutKINCAID ACRES S-109905-10990 KINCAID ESTATES .*' ECEIVED MUNICIPALITY OF ANCHORAGE APR 1 9.2004 I Office of the Clerk Phone - 343-4311 Fax - 343-4313 DATE: April 16, 2004 TO: Municipality of Anchorage Platting Board THRU: Jerry Weaver FROM: L~.. Heim, Deputy Municipal Clerk 343-4314 SUBJECT~ Attached are the Board of Adjustment Findings of Fact and Decision on Kincaid Estates Subdivision Appeal S-10990-3. These findings were adopted at a regular meeting of the Board on April 13, 2004. This appeal is being remanded to the Platting Board as directed on page 14 of the findings. MUNICIPALITY OF ANCHORAGE BOARD OF ADJUSTMENT FINDINGS OF FACT AND DECISION KINCAID ESTATES SUBDIVISION CASE S-10990-3 APPEAL FROM THE PLATTING BOARD TO THE MUNICIPALITY OF ANCHORAGE BOARD OF ADJUSTMENT WHEREAS, in Case S-10990~3, the Platting Board approved.a Preliminary Plat and Phasing Plan for Kincaid Estates Subdivision submitted by David and Lesa Hultquist (Appellees); WHEREAS, the South Anchorage Concerned Coalition,'lnc. (Appellant) appealed the decision of the Platting Board; WHEREAS, the Board of Adjustment heard the Appellant's appeal solely on the basis of the record established before the Platting Board, the Notice of Appeal and the written briefs submitted; WHEREAS, the Board of Adjustment deliberated and decided the appeal at meetings open to the public held on March 30, 2004 and March 31,2004; NOW THEREFORE BE IT RESOLVED, that the Board of Adjustment adopts the following findings and conclusions: FINDINGS Issue No. 1. Does the Preliminary Plat Approval Violate AMC 21.25.020? 1. Appellant alleged that AMC 21.25.020 requires that conditions of prior ,entitlements be satisfied before a new entitlement for the same land may be issued and that because the restoration or reclamation requirements of the prior ~:onditional use permits were not satisfied, the preliminary plat should not have been issued. 2. This issue was raised in the consolidated appeal of S-10873-1 and S-10873- 2 to the Board of Adjustment (hereinafter referred to as Kincaid Estates I) and the Board of Adjustment found that the preliminary plat approval did not violate AMC 21.25.020 (R. C-033) 3. This Board finds no reason to deviate from the decision in Kincaid Estates 1. Furthermore, this Board finds that the Anchorage Assembly sitting as the Board of Adjustment decided the issue correctly in Kincaid Estates I. 4. Additionally, the preliminary plat approval does not violate AMC 21.25.020 because this Board interprets the language in AMC 21.25.020 as follows: the "terms and conditions of the other entitlements" apply to the prior conditiOnal use for gravel extraction and do not apply to the proposed residential subdivision development. This plat does not violate AMC 21.25.020. 5. ' Even if the language of AMC 21.25.020 does apply to this plat and requires reclamation, the preliminary plat and the proposed development provide the required reclamation. Issue No. 2. Is the Plattin,q Board's Findin.q Under AMC 21.75.010(A)(2) that the Proposed Development Promotes Public Health, Safety and Welfare Supported in the Record by Substantial Evidence? 6. Appellant alleged that the Platting Board's finding that the proposed development promotes public health, safety and welfare is not supported in the record by substantial evidence because there are a substantial number of unresolved issues and multiple conditions were imposed on the plat approval. 2 7. While this issue was raised in Kincaid Estates I, the plat at issue herein, as it' pertains to ground water protection, is significantly different from the Plat in Kincaid Estates I. 8. Except as to ground water protection, the Platting Board's finding that the proposed development promotes public health, safety and welfare is supported in the record by substantial evidence. 9. VV"rth respect to ground water protection, concerns Were raised as to the potential for aquifer contamination from percolation and from the lift station and concerns were raised regarding well water disturbance from the development. Also experts identified additional studies that needed to be done. Numerous experts disputed that public health, safety and welfare were furthered by this plat. These included but were not limited to Munter, Kleweno, Urbanus, Cross, and Dr. Pasch. 10. The Platting Board did not adequately explain the basis for its decision given the concerns raised and the conflicting evidence. The Platting Board did not articulate what evidence it found persuasive or what evidence it relied on to find that the proposed development promotes public health, safety and welfare with regard to ground water protection. 11. The Board of Adjustment agrees with an earlier statement by the Platting Board that protection of this aquifer and maintenance of water quality is one of the greatest concerns for surrounding property owners. (Finding 35, R. 1247) These ,.. concerns are sufficiently important to warrant notice to the public and the opportunity to be heard. In addition, the Platting Board should exercise care not to delegate its 3 decision-making responsibility on matters relating to the protection of aquifers and water quality. The Platting Board's finding that the proposed development promotes public health, safety and welfare with respect to ground water protection is not supported in the record by substantial evidence. Issue No. 3. Did the Plattinq Board Approve the Preliminary Plat Without Havincl the Benefit of All Relevant Information in Violation of AMC 21.15.110 or AMC 21.75.0107 12. Appellant alleged that all relevant information and analyses must be before the Platting Board prior to any decision to approve or reject a preliminary plat and that the Platting Board acted without all of the required information in violation of AMC 21.15.110(B)(4), AMC 21.15.110(B)(6) and AMC 21.75.110. 13. AMC 21.15.110(B)(4)(b) relates to information about the adequacy of water supply and waterborne domestic waste disposal from the subdivision itself and requires that certain information required by the Department of Health and Human Services be submitted. 14. There was no evidence that the Department of Health and Human Services required additional information to be submitted under AMC 21.15.110(B)(4)(b). 15. AMC 21.15.110(B)(6) relates to information the Platting Officer may require and is a discretionary provision. However, the Board of Adjustment encourages the platting officer to review its discretionary authority to require the applicant .to submit analyses prepared by qualified experts concerning any or all aspects of the effect the subdivisior~ development will have on the surrounding neighborhood's drinking water. 4 16. AMC 21.75.010 was cited in a footnote in Appellant's Brief and does not in and of itself require the submission of information. 17. The Platting Board's approval of the preliminary plat was not in violation of AMC 21.15.110 or AMC 21.75.010. Issue No. 4. Did the Plat Application Violate AMC 21.010(B){'1) Because it was not .Si.qned by Holders of Record Title? 18. Appellant asserted that the plat application was not signed by the holders of record title in violation of AMC 21.15.110(B)(1). 19. This issue was raised in Kincaid Estates ! and the Assembly sitting as the Board of Adjustment found that the representative of the holder of record title signed the plat application. This is a standard practice. The Municipal Code does not require a signature by the record owners. (R. C-034) 20.' This Board finds no reason to deviate from the decision in Kincaid Estates The Board finds that the Assembly sitting as the Board of Adjustment decided the issue correctly in Kincaid Estates I. 21. The Plat Application does not violate AMC 21.010(B)(1). Issue No. 5. Did the Plat Comply VVith the Requirements of AMC 21.15.1 Re.qardin,q Phasin.q? 22. Appellant asserted that the Preliminary plat.approval did not include a statement of reasons or justifications for the 10 to 12 year phasing plan as required by AMC 21.15.110(B)(4)(e). 5 23. This issue was raised in Kincaid Estates ! and the Assembly sitting as the Board of Adjustment found that the record showed the phasing sequence, that phasing was appropriate based on the size and nature of the development, and any failure to include information on phasing was harmless error. (R. C-034) 24. This Board finds no reason to deviate from the decision in Kincaid Estates ! and finds that the Assembly sitting as the Board of Adjustment decided the issue correctly in Kincaid Estates I. 25. There is adequate information in the record from the application and supporting documents, staff analysis and public hearing testimony to support the finding that the plat complied with the requirements of AMC 21.15.110(B)(4)(e). Issue No. 6. Was the Required Information Reqardin.q Pedestrian Trip Generators Submitted in Compliance With AMC 21.15.110(B)(4~(_a)? 26. Appellant alleged that the subdivider did not submit the required pedestrian trip generator information in violation of AMC 21.15.110(B)(4)(g). 27. This issue was raised in Kincaid Estates I and the Assembly sitting as the Board of Adjustment found that the required information was submitted and there was no violation of AMC 21.15.110(B)(4)(g). (R. C-035) 28. This Board finds no reason to deviate from the decision in Kincaid Estates ! and finds that the Assembly sitting .as the Board of Adjustment decided the issue correctly in Kincaid Estates I. 29. In addition, while the plat differs slightly from the plat at issue in Kincaid Estates I with regard to traffic generation, an amended traffic impact analysis was 6 submitted supplementing the prior traffic impact analysis and the information required to be submitted by AMC 21.15.110(B)(4)(g) was submitted. Issue No. 7. Was the Requisite Draininq Analysis Submitted in Compliance with AMC 21.15.110(B)(4~ (i)? 30. Appellant asserted that the subdivider did not submit the requisite preliminary drainage analysis with the preliminary plat application in violation of AMC 21.15.110(B)(4)(i). 31. This issue was raised in Kincaid Estates ! and the Assembly sitting as the Board of Adjustment found that the preliminary drainage analysis required by AMC 21.15.110(B)(4)(i) was submitted. (R. C-035) 32. This Board finds no reason to deviate from the decision in Kincaid Estates ! and finds that the Assembly sitting as the Board of Adjustment decided the issue correctly in Kincaid Estates !. 33. The preliminary drainage analysis required by 21.15.110(B)(4)(i) was submitted to the Platting Board. 34. The Platting Board's Findings (R. 230 to 231) related to the preliminary drainage analysis are supported in the record by substantial evidence. 7 Issue No. 8. Does the Preliminary Plat Fail to Address or Mitiqate Incompatibilities Between the Proposed Development and the Surroundin~ Neighborhood? 35. Appellant alleged that there are incompatibilities between the proposed development and the surrounding neighborhood with respect to drinking water protection, air quality, noise abatement, overcrowding in schools and traffic which were not adequately addressed in the preliminary plat in violation of AMC 21.75.110(A)(3). 36. This Board will address each area of alleged incompatibility separately. Issue No. 8 A. Drinkinq Water Protection. 37. Appellant asserted that the preliminary plat failed to address or mitigate the effects of incompatibilities between the proposed development and the surrounding neighborhood in that there is inadequate evidence of drinking water protection. - 38. This issue was raised in Kincaid Estates ! and Assembly sitting as the Board of Adjustment found that there Was not sufficient evidence in the record that the preliminary plat mitigated the effects of incompatibilities between the proposed development and the surrounding neighborhood with respect to drinking water protection and that additional information was needed. (R. C-036, C-041) 39. The plat at issue herein is significantly different from the plat in Kincaid Estates ! as it relates to drinking water protection. There is evidence in the record demonstrating that additional information and studies are still needed. 40. There was conflicting evidence in the record as to the adequacy of drinking ... water protection. This Board found it could not determine whether there was sufficient evidence to Support the Platting Board's decision because the Platting Board did not 8 state what evidence it relied on to find that the plat mitigated the effects of incompatibilities between land uses and residential densities in the Proposed development and land uses and residential densities in the surrounding neighborhood. 41. The Platting Board's finding that the preliminary plat mitigates the effect of incompatibilities between the land uses or residential densities in the proposed development and the land uses and residential densities in the surrounding neighborhood is not supported in the record by substantial evidence with respect to drinking water protection. Also, see findings 9 and 11 herein. Issue No. 8 B. 'Air Quality. 42. Appellant asserted that the Platting Board failed to mitigate or Consider the adverse effects of the proposed development on air quality in violation of AMC 21.75.010(A)(3), AMC 21.75.010(A)(9) and in violation of the Anchorage 2020 Anchorage Bowl Comprehensive Plan. 43. This issue was raised in Kincaid Estates ! and the Assembly sitting as the Board of Adjustment found that the Platting Board's finding that the preliminary plat was in conformance with Anchorage 2020 was supported in the record by substantial evidence and that there was no violation of AMC 21.75.010(A)(3), AMC 21.75.010(A)(9) or the Anchorage 2020 Anchorage Bowl Comprehensive Plan. (R. C- 036-037) 44. Although there are differences between the plat in Kincaid Estates I and the ... plat at issue herein, and more homes will be built in conjunction with this plat, there is 9 sufficient evidence in the record to find that the differences do not have a significant bearing on this issue. 45. This Board finds no reason to deviate from the decision in Kincaid Estates ! and finds that the Assembly sitting as the Board of Adjustment decided the issue correctly in Kincaid Estates 1. 46. The preliminary plat did not fail to address or mitigate the effects of incompatibilities between the proposed development and the surrounding neighborhood with respect to air quality. Issue'No. 8 C. Noise Abatement. 47. Appellant asserted that the Platting Board failed to address or mitigate the adverse effect of placing houses under the flight path of the Stevens International North/South Runway by not requiring construction which incorporated noise attenuation techniques to soundproof the buildings. 48. This issue was raised in Kincaid Estates ! and the Assembly sitting as the Board of Adjustment found that the Platting Board required the disclosure of the property location with the airport noise contours of the plat and that the Platting Board's findings were supported in the record by substantial evidence. (R. C-037) 49. This Board finds no reason to deviate from the decision in Kincaid Estates ! and finds that the Assembly sifting as the Board of Adjustment decided the issue correctly in Kincaid Estates I. 10 50. The Platting Board required, as condition of approval No. 16, placing a note on the plat and in the homeowner's documents/covenants regarding the location of the property within the Anchorage International Airport's LDN noise contours. (R. 242) 51. The Platting Board's finding that the preliminary plat mitigates the effects of incompatibilities between the proposed development and the surrounding neighborhood with respect to noise is supported in the record by substantial evidence. Issue No. 8 D. Overcrowdin.q in Schools. 52. Appellant asserted that the potential for overcrowding in existing area schools is an incompatibility between the proposed development and the surrounding neighborhood that was not addressed in the plat in violation of AMC 21.75.010(A)(3). 53. This issue was addressed in Kincaid Estates ! and the Assembly sitting as the Board of Adjustment found that the selection of a school site is incumbent on the Anchorage School District, that the Municipal Code does not require the developer to provide for the development of schools, and the Platting Board's implicit finding that the, preliminary plat mitigated the effects of incompatibilities between the land uses or residential densities in the subdivision and the land uses and residential densities in the surrounding neighborhood as it related to overcrowding in schools was supported in the record by substantial evidence. (R. C-034) 54. This Board finds no reason to deviate from the decision in. Kincaid Estates ! and finds that the Assembly sitting as the Board of Adjustment decided the issue correctly in Kincaid Estates Z. il 55. The developer has made the entire site available for Anchorage School District selection and it is the responsibility of the School Distdct to select a school site. 56; The Platting Board's finding that the preliminary plat mitigates the effects of incompatibilities between the proposed development and the surrounding neighborhood with respect to overcrowding in schools is supported in the record by substantial evidence. Issue No. 8'E. Traffic. 57. Appellant identified an issue as to whether the preliminary plat approval mitigated the effects of incompatibilities between the proposed development and the surrounding neighborhood with respect to traffic. Appellant did not address this issue in its brief. 58. The key language in AMC 21.15.110(B)(3)(g)(3) and (4) relates to information "to enable the platting authority to make a preliminary determination" and this information was provided. There is no violation of AMC 21.15.110(B)(3)(g)(3) or (4). 59. The Platting Board's finding that the preliminary plat mitigates the effects of incompatibilities between the proposed development and the surrounding neighborhood with respect to traffic is supported in the record by substantial evidence. Issue No. 9. Does the Preliminary Plat Approval Violate the Sand Lake Redevelopment Plan? 60. Appellant asserted that the preliminary plat violated the requirements of the Sand Lake Redevelopment Plan in that reclamation is to be the first pdodty, sufficient 12 bond is to be posted, the application is to be joined in by the owner, three neighborhood collector roads on to Sand Lake Road are required and lift stations are to be discouraged. 61. The Sand Lake Redevelopment Plan is a planning document and is not an element of the Comprehensive Plan as listed in AMC 21.05.030. 62. The Platting Board's finding (R. 234-235) that the preliminary plat met the standards of and was in conformance with the Sand Lake Redevelopment Plan was supported in the record by substantial evidence. Issue No. 10. Does the Plattinq Board's Preliminary Plat Approval Violate the Anchoraqe 2020 Plan? 63. Appellant asserted that the preliminary plat approval violated the Anchorage 2020 Plan in that the Anchorage 2020 Plan fosters community involvement at all stages of the process and this was not adhered in that the Board improperly delegated its decision making authority thereby depriving Appellant of due process rights. 64. The issue raised on appeal related to the Anchorage 2020 Plan is limited to the question of whether the Anchorage 2020 Plan imposes any additional legal obligation for public involvement or restriction on the right of the Platting board to delegate. 65. The Board will not reach the issues of delegation of authority and due process in light of this Board's decision with respect to ground water protection under Issues No. 2 and 8 A herein and this Board's determination to remand this matter to the Platting Board to hold an additional public hearing. 13 CONCLUSIONS 1. This appeal was heard in accordance with AMC 21.30.090. 2. The meetings at which the Board of Adjustment decided this appeal were held in accordance with AMC 21.30.080. 3. The matter is remanded to the Platting Board to: (a) hold a public hearing and accept additional information with regard to the effect of the preliminary plat on ground water quality; (b) update or revise the conditions of approval as necessary in light of the additional information submitted; and (c) to make additional findings under AMC 21.75.010(A)(2) as to whether the proposed development promotes public health, safety and welfare with respect to ground water protection and under AMC 21.75.010(A)(3) as to whether the preliminary plat addresses or mitigates the effects of incompatibilities between the land uses or residential densities in the proposed development and the land uses and residential densities in the surrounding neighborhood with respect to ground water protection. 4. In all other respects, the decision and findings of the Platting Board are affirmed. Adopted this ~?'~'~'-' day of' '~ ,2004. Kevin Waring, Chair Board of Adjustment 14