South Anchorage Concerned Coalition, Inc. v. Coffey, S-5197
| Decision Date | 12 November 1993 |
| Docket Number | No. S-5197,S-5197 |
| Parties | SOUTH ANCHORAGE CONCERNED COALITION, INC., Deanna M. Essert, Don Martin McGee, Stephen Gervel and Kenneth Banzhof, Appellants, v. Dan COFFEY and G.F. Kalmbach, and Municipality of Anchorage, Appellees. |
| Court | Alaska Supreme Court |
Joyce E. Bamberger, Anchorage, for appellants.
Kenneth D. Jensen, Jensen, Harris & Roth, Anchorage, for appellees.
Before MOORE, C.J., and RABINOWITZ, BURKE and COMPTON, JJ.
The South Anchorage Concerned Coalition (SACC) appeals the superior court's reversal of the Anchorage Planning and Zoning Commission's (the Commission's) decision to deny a conditional use permit to Dan Coffey and G.F. Kalmbach (Coffey). The superior court ruled that the findings supporting the permit denial were legally deficient and were not supported by substantial evidence. The court ordered the Commission to grant the permit. We reverse.
The property involved in this appeal is a 58-acre parcel of land known as the Kalmbach gravel pit. The property was once operated as a commercial gravel pit but now lies idle. It is located near Kincaid Park in Anchorage and abuts the south side of Kincaid Road and the east side of Lucy Street. A sizable housing development currently exists on the east side of Lucy Street, but few other houses stand in close proximity to the property. The property is zoned R-2A SL, a classification designed primarily for noncommercial residential uses, but which also permits "natural resource extraction" as a conditional use. AMC 21.40.040(A), (D)(7).
Starting in August 1989, Coffey sought city approval for a three-phase, residential subdivision development plan for the property. The first phase of the plan called for the completion of "grading" which entailed the extraction and removal of 1.6 million cubic yards of marketable gravel from the property over a period of three to five years. The final project phases called for the completion of a residential subdivision conforming to R-2A zoning. It was the proposed gravel extraction of phase one which created the controversy giving rise to this appeal.
When Coffey's plan went to the Board of Adjustment 1 (Board) for final approval, the Board determined that the proposed gravel excavation was so extensive that a conditional use permit was required. In March 1990, Coffey applied to the Commission for a "natural resource extraction" conditional use permit. With the application, Coffey submitted an extensive "Conditional Use Narrative" which provided, among other things, a grading plan, a staging plan, a truck haul plan, and a "Materials Extraction/Restoration Study." The most significant features of the proposed operation follow.
The grading operation envisioned the removal of 1.6 million cubic yards of gravel material from the site for commercial sale. The gravel would be moved offsite in 80,000 truck trips over a three to five year period. Ten to twenty trucks would leave the site per hour from 7 a.m. to 6 p.m., Monday through Saturday, five months out of the year. Trucks would carry signs with the name of the subdivision development company and a phone number for the public to call if the trucks caused safety hazards or property damage. The truck drivers would be registered and proof of insurance would be documented. The trucks would enter and leave the site at Snead Street, the point on the property farthest away from existing homes.
Silts and fine sands, called overburden, would first have to be removed to access the marketable gravel. The overburden would then be compacted back into the excavation pit to attain the final subdivision grades. Coffey's engineering geologist acknowledged that overburden is difficult to compact when wet and concluded that engineering control would be necessary to assure that structures built on the compacted overburden would not be subjected to unstable ground conditions. He nonetheless concluded that with proper engineering supervision, the pit in question could be regraded to permit a variety of future uses. 2
Noise levels at the site would also occasionally exceed the standard limitation of noise levels for residential property set by the Municipality of Anchorage, but generally, activities would remain below acceptable noise levels. The gravel excavation would proceed to a maximum depth of 25 feet above mean sea level, taking it to within 10-15 feet of the area's water table. 3 The final grade and contours of the proposed subdivision would be fairly severe. Although the final contours would be an improvement over the existing contours, the subdivision would still be located in a depression with steep sloping sides (a two foot horizontal to one foot vertical rise) fifty feet high. According to the geologist's report, this 2:1 slope represented the maximum slope allowable for hillside stability.
The Commission planning staff reviewed the Coffey plan and recommended approval of the conditional use permit subject to thirty-three operating conditions previously imposed by the Platting Board and twenty-one additional conditions proposed by the Commission staff. 4 The staff apparently concluded that if the final plan satisfied the fifty-four conditions of approval, it would comply with municipal code standards. 5 See AMC 21.50.020 and 21.50.070(B) ().
On April 16, 1990, the Commission held a public hearing on the use permit. The Commission heard from its planning staff, Coffey and his representative, Mr. Sawhill, SACC representatives, and many Sand Lake residents who opposed the permit application. 6 The opposition's statements were primarily anecdotal accounts of past negative experiences with the pits while they were operating or assertions from residents that they had relied on the Sand Lake Redevelopment Plan ("SLRP") when buying property and believed that further gravel extraction would not be permitted in the area. A few people giving statements had experience either in land use planning, construction, or real estate, but no one actually purported to provide "expert testimony."
The residents cited: (1) danger from gravel on the road and dust and noise from the excavation operation; (2) concern over water contamination if the excavation goes too deep and hits the water table; (3) the dangers posed by heavy gravel trucks on the road; (4) concern that the many permit conditions could not be effectively enforced; (5) concern that project guarantees would be insufficient to ensure that Coffey would go forward with residential development once the gravel extraction phase was complete; and (6) concern that the subdivision would not be marketable given the glut of available housing and its poor location in a former gravel pit.
At the end of the hearing, the commissioners voted unanimously to deny the permit for the following reasons: (1) the adverse impact of open pit mining on both the property values and the quality of life of the residential neighborhoods near the property; 7 (2) concern that the depth of the proposed excavation, particularly excavating "below grade," was inconsistent with the purpose and assumptions of the SLRP; (3) the Sand Lake pit operators' understanding that no new, large-scale commercial gravel operations would be allowed following adoption of the SLRP by the Commission; (4) the fact that fifty-four conditions were added to the plan indicated that it was an "inherently incompatible use" with the surrounding area; (5) the belief that the final contours of the subdivision were undesirable and potentially unstable; (6) the plan was not "redevelopment" but was actually commercial mining contrary to the SLRP and R-2A zoning; 8 (7) the desirability of a "master plan" for redevelopment in which several gravel pit owners work together to design a subdivision with less extreme grading; and (8) the concern that gravel trucks leaving a residential area would pose a safety hazard. Only one commissioner expressly concluded that the plan actually satisfied the standards of AMC 21.50.020 and .070. However, she voted to deny the permit because she believed that the strong public sentiment against the project indicated that there was "something wrong with the project."
After the vote, the planning staff drew up Resolution No. 88-019A from the substance of the hearing minutes. The findings of fact parallel the commissioners' above-stated reasons for denying the permit. The resolution contained no separate conclusions of law section.
As provided for in AMC 21.30.010, Coffey appealed the permit denial to the Assembly sitting as the Board of Adjustment. The Board concluded that Resolution 88-019A did not provide sufficient findings to support the permit denial and remanded the case back to the Commission for further findings. The Board did not require the Commission to reopen the record or take additional testimony. The Board members did not suggest that the denial itself was improper, but they were concerned that the Commission's findings might be insufficient to allow for judicial review in an anticipated court challenge.
On remand, the Commission met to review proposed new findings and conclusions which the planning staff had prepared prior to the meeting. The commissioners reviewed the findings section-by-section, making amendments as necessary. They then adopted a new resolution which added a separate section for "conclusions of law and fact." 9 Among its findings, the resolution states that the subdivision "requires a massive commercial natural resource extraction" and notes that the plan fails to conform to the SLRP in various ways. It further provides: "The interim use ... will have negative impacts to the adjacent surrounding neighborhood, as well as traffic impacts to the surrounding neighborhood." The "conclusions of law and fact" rely heavily on the policies and goals of the SLRP to...
To continue reading
Request your trial
-
Kay v. City of Rancho Palos Verdes
...Wis. Stat. § 59.694 (30 days); Wyo. R.App. P. 12.04 (30 days). B. Ala.Code § 11-52-81 (de novo); South Anchorage Concerned Coalition, Inc. v. Coffey, 862 P.2d 168, 173 (Alaska 1993) (substantial evidence); Murphy v. Town of Chino Valley, 163 Ariz. 571, 789 P.2d 1072, 1077 (Ct.App.1989) (sub......