MEMORANDUM

REPLACES JULY 7, 2006, MEMO

TO:                Ron Long, Assembly President

                        Members, Kenai Peninsula Borough Assembly

FROM:          Milli Martin, Assembly Member

DATE:           July 21, 2006

SUBJECT:    Proposed amendments to Ordinance 2006-01 (Martin) Substitute, Material Site Permits

            Please find several proposed amendments to Ordinance 2006-01 (Martin) Substitute. These amendments are in response to public comments received on both the current and proposed material site ordinances during numerous public hearings before the assembly, at a special meeting of the Anchor Point Advisory Planning Commission on April 25, 2006, at a public work session on May 4, 2006, facilitated by Assembly Member Dan Chay, and at a regular meeting of the Anchor Point Advisory Planning Commission on July 13. This replacement amendment memo contains a few additional revisions that were not in the July 7 memo. The list of amendments is not substantial; however, reorganization of the chapter in order to make it more user-friendly has resulted in extensive reformatting. The new listings included on pages 2 and 3 of this memo are asterisked for reference ease. A table is included to show the formatting changes.

The introductory sections of the ordinance have been reorganized to first clarify what activities are exempt from permitting (KPB 21.29.010) followed by regulated activities (KPB 21.29.020). Rather than regulating commercial material site activities, the amendment proposes regulating the land use based on size. A material site less than an acre does not require a permit. Material sites which disturb up to and including 2.5 acres and do not enter the water table require a counter permit, which is valid for one year with the potential for a one-year extension. Material sites which disturb more than 2.5 acres or sites of any size that involve processing or digging in the water table require a conditional land use permit (“CLUP”). Staff has found that the loopholes in regulating the commercial nature of operations make it difficult to interpret and enforce the present ordinance. They have also found that the vast majority of counter permits are under 2.5 acres in size. It is suggested that processing always be subject to a CLUP because of noise and traffic generated by crushing. Sites larger than 2.5 acres are likely to have more than a single project purpose and a longer lifespan than smaller sites. A site less than an acre is unusual and to the extent they exist would likely be serving a short-term project or small project(s). Staff believes this approach will lead to more efficient and consistent administration and enforcement of the material site code. An additional cross reference to the applicability of KPB 21.25, Conditional Land Use Permits, is included for ease of reference.

KPB 21.29.030 “Application procedure” contains an amendment deleting the alternate backup warning system after considering public testimony regarding the burdens this would place on operators in short construction seasons and realizing that it did nothing to alleviate the noise of nighttime traffic generated by the material site. Encumbrances are required to be identified in order to enforce the proposed condition that easements not overlap buffers. The description of riparian wetlands is clarified by reference to the Kenai Watershed Forum maps. *The reference to identifying the location of processing “equipment” is changed to “areas” since the equipment may be mobile.

KPB 21.29.040 “Standards for material sand, gravel or material sites” is amended to itemize the standards.

* KPB 21.29.050(A)(2)(d) specifically defines the types of surface water diversion that may cause negative impacts.

* In KPB 21.29.050(A)(3), authority is given to the planning commission to reduce the 300-foot setback requirement for processing since processing may not interfere with adjacent areas, e.g., vacant property or industrial areas.

KPB 21.29.050 “Permit Conditions” requires that parcels remain staked throughout the life of the permit to assure that boundaries and buffers remain in compliance. A requirement is added that buffers not negatively impact adjacent properties or waterbodies. A provision is added that material may be removed from the 2:1 slope as long as stabilizing material is replaced within 30 days to allow operators to maximize the use of the material without undermining the stability of the buffers.

* KPB 21.29.050(A)(11): a specific reference to rock crushing is substituted for processing, since rock crushing is noisy and would be intrusive at night, but other processing such as screening is not.

In KPB 21.29.050(A)(13), a specific reference to MSHA noise and safety standards is made.

In KPB 21.29.050(A)(14), the word “permanently” is stricken from the voluntary conditions provision because it unnecessarily gives the impression that a voluntary condition could not be altered, which it could through the permit modification process. The voluntary conditions will otherwise travel with the CLUP if the site is transferred to a new owner.

* KPB 21.29.050(15) adds a new condition requiring a posting of material site where there will be a delay in initiating operations to advise surrounding property owners and the public of the parcel's status as a material site.

* KPB 21.29.060(B) is revised to clarify that reclamation of a site less than one acre is required where a CLUP has been granted.

* KPB 21.29.060(C)(5) is deleted as unnecessary.

KPB 21.29.070 “Permit extension and revocation” is modified to clarify when permits may be administratively extended, and when they must be modified through a public process including planning commission review. Similar to KPB 21.26, the permit may be administratively extended for five years where there have not been recent permit violations or no change in operations is proposed. The code is clarified to provide that if a permit expires without application for an extension a new permit application and public process is required.

* KPB 21.29.070(C)(3) adds language to indicate that a permittee will not be penalized where he has resolved his violations.

KPB 21.29.100 “Recordation” is amended to add permit extensions and modifications to the list of material site documents that are recorded.

The definition of “on-site use” is deleted because it no longer has relevance when material sites are regulated according to size. (The definition of “commercial” remains intact with an amendment because it may be used for CLUPS other than material sites.)