Two Plays By Dan Coffey
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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.
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We reverse. The property involved in this appeal is a acre parcel of land known as the Kalmbach gravel pit. The property was once operated as a commercial gravel pit but now lies idle. 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 Starting in August , 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. 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 Board for final approval, the Board determined that the proposed gravel excavation was so extensive that a conditional use permit was required. In March , Coffey applied to the Commission for a "natural resource extraction" conditional use permit. The grading operation envisioned the removal of 1. The gravel would be moved offsite in 80, truck trips over a three to five year period. Ten to twenty trucks would leave the site per hour from 7 a.
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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. 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. 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 feet of the area's water table. 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 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. On April 16, , the Commission held a public hearing on the use permit. The Commission heard from its planning staff, Coffey and his representative, Mr.
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.
Only one commissioner expressly concluded that the plan actually satisfied the standards of AMC 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. 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 The Board concluded that Resolution A 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. It further provides: "The interim use Coffey again appealed to the Board, but this time the Board affirmed the permit denial.
The Board noted that the commercial gravel industry and local residents made substantial investments based on the SLRP which contemplated the "projected closure of the Sand Lake area to gravel extraction. Coffey appealed this decision to the superior court in April Superior Court Judge Karl Johnstone reviewed the Commission's findings and the administrative record and reversed the permit denial. He determined that the Commission and the Assembly had improperly relied on the SLRP as a standard and as evidence to support its findings.
He also held that the gravel extraction operation could not be considered a permanent negative impact to the area within the meaning of AMC Judge Johnstone further concluded from his review of the record that the Commission had rejected Coffey's permit application based on "community sentiment rather than objective and proper criteria. The city chose not to appeal this mandate and granted the conditional use permit subject to the fifty-four conditions which have been mentioned above. Judge Johnstone then stayed action on this permit pending the outcome of SACC's appeal to this court.
Under AS The appeal "shall be heard solely on the record established before the municipal bodies" and the zoning body's decision "shall not be reversed if, in the light of the whole record, they are supported by substantial evidence. Stanton, P. City of Anchorage, P. The majority rule, and the one we adopt, is that judicial review of zoning board decisions is narrow and that a presumption of validity is accorded those decisions. We will give no weight to the superior court's decision but will independently review the record because the superior court was acting as an intermediate appellate court with respect to the Commission's decision.
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Alaska Pub. Comm'n, P. Anchorage Municipal Code In addition to these requirements, "natural resource extraction" conditional use applications must also satisfy the procedural requirements of AMC Subsection B requires that 1 access to the operation "minimize the use of residential streets" and that suitable dust and traffic controls be adopted; 2 "the extraction operations will not pose a hazard to the public health and safety;" 3 "the extraction operations will not generate noise, dust, surface water runoff or traffic that will unduly interface with surrounding land uses;" 4 "the restoration plan SACC argues that the evidence and the Commission's factual findings demonstrated that Coffey's proposed gravel extraction operation failed to meet at least one, if not several, of the substantive standards imposed by these ordinances.
The Commission denied Coffey's permit application based, in part, on the project's failure to conform to the planning goals of the SLRP. Coffey argued successfully to the superior court that reference to this document was improper because it essentially added a new standard to the exclusive list provided by AMC We disagree. We see no reason why the Commission should not be allowed to consider the SLRP in ruling on the appropriateness of a proposed conditional use in the Sand Lake area. Although the Commission and the Board recognized that the SLRP did not have the status of a zoning ordinance, the SLRP is a detailed, thoroughly researched planning document which the Commission adopted by resolution and has repeatedly used to guide its decision-making in the Sand Lake area.
In reviewing zoning decisions, courts generally try to guard against prejudice, arbitrary decision-making, and improper motives. Reliance on comprehensive planning documents actually helps combat these problems so long as the Commission refers to them in a uniform fashion. The record does not indicate that the Commission acted arbitrarily or with prejudice when it judged Coffey's plan with reference to the goals of the SLRP. We consider Coffey's argument too restrictive.
Thurston v. Cache County, P. Nothing in AMC Because AMC We, therefore, conclude that the Commission properly referred to the SLRP as a planning document in reviewing the permit application. He was a great person, and will be truly missed. My condolences on his loss, and on the loss of his son. God bless you all! Dear Dan,We shall never forget you, your smile, your voice and your laugh.
We shall keep this day as a sacred remembrance of you and what we lost in a moment. We carry on but we never leave you behind. Thank you for helping us daily to carry the tears and the sadness in our hearts but still to move forward with strength and determination. God Bless You and your family today and always. I worked with Dan on various projects over the course of many years. I was impressed by his patience, sincerity and kind, gentle personality. He had a way of making you feel important, as if you were helping him - when indeed he was the one helping you.
My sincere condolences to his family. Back in the mid's, I worked with, and reported to, a younger Dan. I remember his easy flair for insurance, his humor, that his family was never far from his thoughts, and a certain wisdom and maturity about life that was beyond his years.
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He hid his Junior Mints but roared with appreciative laughter when we found especially inventive ways to break into his stash. Seasons change, time passes but what remains the same is your imprint on our hearts. Rest in peace and may God Bless you and your family today on the 10th anniversary of that terrible morning.
We miss you and we are better for having known you. We remember you today and always I worked with Dan at Guy Carpenter.