City`s Response - Wasilla Sports Complex

Transcription

CITY OF WASILLA
APPEAL HEARING
IN THE MATTER OF
City of Wasilla, Appellee
Kevin Baker, et. aI., Appellants
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Appeal Case No. 10-01
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WRITTEN ARGUMENT OF CITY OF WASILLA
Introduction and Factual Background.
On February 10, 2009 the Wasilla Planning Commission ("Commission") recommended
that the Council amend the City's zoning ordinance to permit firing ranges as a conditional use in
the Industrial and Public zoning districts, and to establish standards for the conditional use. On
April 13, 2009, the Council adopted Ordinance Serial No. 09-26(SUB), which implemented the
Commission's recommendations.
On April 14, 2009, the City applied to the Commission for approval of a conditional use
permit for a firing range on the 59.96 acre lot that includes the site of the Curtis D. Menard
Sports Center. 1 The proposed site of the firing range is in the Industrial zoning district, is
bounded on the north and west by vacant industrial-zoned land, on the east by vacant land zoned
rural residential, and on the south by land zoned rural residential that is occupied by two
dwellings and a cabin. 2
On May 12, 2009, the Commission held a public hearing on the rehearing of the three (3)
remanded points from the Conditional Use Permit (CUP) 09-01. 3 The Wasilla Planning Office
mailed notices for the Planning Commission Public Hearing to property owners within 1,200
Record prior to Remand ("PR"). 1,45.
PR.45.
3 R. 281.
1
2
Appellee's Brief 10-01
Appellee's Written Arguments
Page 1 of 29
radial feet of the subject property and to applicable agencies. 4 The May 12, 2009 hearing was
also publicly advertised as required by law. 5
After the May 12, 2009 Planning Commission public hearing, the Wasilla Planning
Commission stated that the Commission had deliberated on the request and considered or
accepted the following information:
1.
2.
3.
4.
All information submitted by the applicant;
The evaluation and recommendations contained In the Administration
IS taff Report;
Public testimony (both written and verbal); and
The applicable provisions of the Wasilla Comprehensive Plan; and
The COffilnission unanimously approved the application, with conditions, on May 12,
2009. 6
Bradley K. Layboum and others appealed the Commission's decision on June 3, 2009. 7
On August 14, 2010, the appeal was granted in part and remanded 8 to the Planning
Commission to consider three (3) specific points. 9
The points that were "remanded" for
reconsideration were:
1. What is the reason that WMC 16.16.060(K) requires 20 acres for a firing range, and is
this requirement met if the property is additionally used for other purposes?
This is a direction to reconsider Finding No. 20.
2. Should a particular amount of surrounding property be restricted in use, to insure
adequate sound dampening, as an additional condition to the conditional use permit?
This inquiry is to address Finding No. 30 that found a vegetative bugger was
important to mitigate off-site impacts.
R. 281.
281.
6 PRo pg. 67 (limited hours of operation (10:00 a.m. to 8:00 p.m.); Posted rules at range; Ranger officer always
present; fourth side ballistically protected; limited fireanns to less that .50 caliber and excludes black powder); see
also; Tr. 143, lines 18-23.
7 PR.73-75.
8 R.269.
9 R. 261-269.
4
5 R.
2
Appeal Case No.1 0-01
Appellee's Brief
3. The Commission is directed to make a determination pursuant to WMC 16.16.050(A)
as to whether the proposed use can occur harmoniously with other activities allowed
in the district and whether it will disrupt the character of the neighborhood. If the
conditional use is approved then such findings will be in writing. 10
The Administrative Hearing Officer also specifically indicated that there was no
requirement that the balance of the findings previously made be revisited unless the Commission
so desired at its discretion. II
The Adlninistrative Hearing Officer's August 14, 2009 final decision, in Appeal Case
No. 09-01, specifically notified the parties of the right to appeal the decision. 12 Neither party
filed an appeal of the August 14, 2009 decision. 13
In order to assist the Commission in their efforts to assess the Hearing Officers three
points on remand, the Appellee retained Earl Mullins, an acoustical expert with Mullins
Acoustics. Earl Mullins is a Mechanical Engineer who practices in the measurement analysis
and mitigation of environmental noise. Mr. Mullins has been the primary acoustical consultant
on over 1800 projects since 1984. 14 Mr. Mullins drafted an extensive report and analysis to
assist the Planning Commission in their efforts to reconsider the three points remanded by the
Administrative Hearing Officer.
15
The Mullins Wasilla Outdoor Shooting Range Noise Analysis
was provided to the Wasilla Planning Commission on or about April 6, 2010.
R. 269.
R. 269.
12 R. 270.
10
II
13 WMC
16.36.060 provides fifteen (15) days to appeal a Planning Commission Order or Decision.
16.36.060.A reads as follows:
A.
Any interested person adversely affected by a decision or order of the
commission, other than a recommendation to the council regarding a rezoning or
an amendment to this title, may appeal the decision or order to the hearing
officer by filing an appeal application with the clerk on a form provided by the
clerk within fifteen (15) calendar days after the date of the decision or order.
WMC
R. 271-278.
It is critical to note that pursuant to Resolution Serial No. 09-13 (AM) the caliber of weapons permitted at the
range is limited to less than .50 caliber and no black powder weapons at all. The Planning Commission specifically
14
15
3
Appellee's Brief
Deputy Administrator, Marvin Yoder, presented the Wasilla Outdoor Shooting Range
Noise Analysis with a memorandum which detailed the \Vasilla Administration's responses to
the Administrative Hearing Officer's three remand points. 16
The April 6, 2010 memorandum provided the following responses:
1. As to question regarding the 20 acre requirement:
Response:
The reason that 16.16.060 requires 20 acres
Ordinance requires 20 acres.
IS
because the Anchorage
The concern expressed by the hearing officer was whether there should be
limitations to other uses on the tract. Anchorage does allow auxiliary uses
at the Rabbit Creed shooting range.
Mr. Mullins states that a coffee stand next to the range would be
acceptable and also explains that the Sports Center will not be negatively
impacted even considering the proximity to the range.
2. As to the restriction of surrounding property:
Response:
Mr. Mullins states on pg. 5 that "there will be no negative acoustical
consequence" if the trees are removed.
3. As to the determination can proposed use occur harmoniously with other activities:
Response:
Most of the letter from Mr. Mullins is in response to this question. The
engineer meticulously calculates the decibel levels inherent at a firing range
and the mitigation measures that are included to insure that this firing range
can occur hannoniously with the surrounding uses. I?
limited the hours of operation from 10:00 a.m. to 8:00 p.m.; required that all ruled be fonnally posted at the range;
that a range officer must always be present; the fourth side of the range be ballistically protected; and limited
fireanns to less that .50 caliber and excluded all black powder weapons. Therefore, all of the Mullins Report
calculations are overstated in that they are based on a maximum caliber that is not pennitted at the range. The
decibel levels will never reach those created by a .50 caliber weapon or a black powder weapon because the
CUP prohibits all.50 caliber and black powder weapons. PRo 67; see also, R. 271-278; Tr. 4-9.
16 R. 279-280; Tr. pgs. 4-9.
17 R. 279-280; Tr. pgs. 4-9.
4
Appellee's Brief
On May 11, 2010, the Wasilla Planning Commission held a public hearing on remanded
Resolution Selial No. 10-06. The public hearing date and time was publicly advertised for
Resolution Serial No. 10-06. 18
The Planning Commission specifically acknowledged that the construction would require
the following:
1.
orientation of the line of fire will be In a north, north-west
direction;
2.
design reflects 20 foot benns on all four sides;
3.
applicant shall design a roof over the firing lines to extend 15 feet
or more beyond the firing points. 19
The Planning Commission also acknowledged the City retained the services of Mullins
Acoustics to conduct a Firing Range Noise Analysis. The Planning Commission specifically
found that the Mullins Report and Analysis took into consideration the proposed site and how the
three questions posed by the hearing officer could be addressed. 2o
Mr. Mullins also provided testimony at the May 11,2010 Planning Commission Hearing.
Mr. Mullins was telephonic for the hearing but was available and did entertain all questions
posed by the Planning Commission?l
The Wasilla Planning Commission deliberated on the Administrative Hearing Officer's
final order taking into account the Firing Range Noise Analysis report submitted by the City's
acoustical consultant, the evaluation and recommendations of the staff response to the Hearing
Officer's conditions, public testimony - both written and verbal comments, the applicable
R. 294-297.
R. 294-297; Tr. pgs. 4-9.
20 R. 295.
21 Tr. pgs. 4-9.
18
19
5
Appellee's Brief
provisions of the Wasilla Comprehensive Plan, and other pertinent information brought before
them. 22
The Planning Commission found that "[a]fter due consideration, the Wasilla Planning
Commission determines that the three questions raised by the Administrative Hearing Officer
have been adequately addressed."
The Planning Commission held as to the first remanded question:
"No.1 is resolved because the 20 acre requirement of the Wasilla
Municipal Code has been met, the site may be used for other
purposes as long as they are for recreational and or other City
approved events." 23
The Planning Commission held as to the second remand question:
"No.2, that it is the opinion of the Commission that the vegetative
buffer would help the sound in some degree however it is not
needed to meet sound level attainment as per Mullin's Acoustics'
report." 24
The Planning Commission held as to the third remand question:
"No.3, the proposed use is harmonious with the activities allowed
and character of the neighborhood when considering that the
planned use of the area is outside sports and airport expansion.
This is self evident because of the decibel levels under existing
uses and is consistent with the acoustical engineer's report. ,,25
The Planning Commission also required the City to the range to be constructed to the
strict standards of the NRA and to "actively seek to achieve the certificate of recognition for
implementing the Best Management Practices for Lead at Outdoor Shooting Ranges. ,,26
R. 295-296.
R. 296.
24 R. 296.
25 R. 296.
26 R. 296.
22
23
6
Appellee's Brief
The Commission reaffirmed the issuance of the CUP in Resolution Serial No. 09-02 and
further adopted the Resolution Serial No. 10-09.27
The Commission also approved the
application with specific Findings of Fact, presented as Exhibit 'A' and Best Management
Practices for Lead at Outdoor Shooting Ranges as provided by the Environlnental Protection
Agency as Exhibit "B" as a management plan for the City of Wasilla Outdoor Firing Range, for
the City of Wasilla to construct an outdoor firing range located next to the Curtis D. Menard
Memorial Sports Center. 28
Kevin Baker et. al. filed an appeal.
Without waiving the argument that many of Appellants' arguments exceed the scope of
the three remanded points, the Appellee submits the following argument in support of the
Commission's decision. The Appellee shall address each of the points in the Appellants' Brief
as best they can be understood and in the same order presented. 29
ARGUMENT30
L
The Site Plan Requirements were Met.
The Appellants reference "Staff Finding 11" to stand for the proposition that the CUP
application submitted on April 19, 2009 and approved on May 12, 2009 did not meet the basic
27 R. 297.
28 R. 297.
29WMC 16.36.060 provides fifteen (15) days to appeal a Planning Commission Order or Decision.
A.
WMC
The Administrative Hearing Officer should uphold the board's decision if it is supported by substantial evidence.
Lindhag v. State, Dep't ofNatural Res., 123 P.3d 948, 952 (Alaska 2005); Fields v. Kodiak City Council, 628 P.2d
927, 932 (Alaska 1981) ("The duty of this court, and that of the superior court below, is to determine whether
[substantial] evidence supports the board's conclusions."). Substantial evidence is "such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion." Municipality ofAnchorage v. Devon, 124 P.3d
424,428-29 (Alaska 2005) (quoting Cowen v. Wal-Mart, 93 P.3d 420,424 (Alaska 2004». In reviewing the board's
decision we do not weigh evidence, determine witness credibility, or evaluate competing inferences from testimony.
[d. at 429; Lindhag, 123 P.3d at 952.
30
7
Appellee's Brief
requirements for obtaining a CUp. 31
32
It appears the Appellants are asserting that the City failed
to provide an adequate Site Plan in support of the 2009 CUP and therefore Resolution 09-02
should not have been granted. This argument is not timely to this appeal and is not relevant to
this appeal. 33
Even if the Administrative Hearing Officer were to entertain this argument, the City did
meet all requirements ofWMC 16.08.015.C.8 in that the site plan presented with Resolution 1009. 34 Pursuant to Staff Finding 8, adopted by Resolution 10-09 the overall site plan drawing
submitted with the application clearly illustrates the necessary setbacks. 35 The cite plan proves
the required setbacks of WMC 16.16.024.K(2) are present. 36 The site plan offered with the
application associated with Resolution 10-09 also clearly demonstrates the distances from each
structure to the nearest lot line. 37
II.
There was No Failure to Meet General Conditional Use Permit Requirements
A.
The Conditional Use Permit is Consistent with
Comprehensive Plan and Other City Adopted Plans
the
City
WMC 16.16.050.A.2 requires that a proposed conditional use be "substantially
consistent with the city comprehensive plan and other city adopted plans.,,38 The City's Planning
staff reported as follows regarding the firing range's consistency with city adopted plans:
The proposed outdoor shooting range is consistent with the
Comprehensive Plan 1996 Current Land Use Map which
designates
the
subject
property
as,
"Vacant/Open
ld.
Appellants' Briefpg. 2 of 13.
33 WMC 16.36.060 provides fifteen (15) days to appeal a Planning Commission Order or Decision.
31
32
PR 1-65.
See also, PRo 68.
36 PRo 16.
37 PRo 16; R. 298.
38 Emphasis added.
34
35
8
Appellee's Brief
SpacelUndeveloped"; and the 1996 Expected Future Land Use
Map which designates the subject property as "Mixed Use Area".39
The City staff found that the application met the criterion of confonnity to the city
comprehensive plan and other adopted plans.
WMC 16.04.040.A lists the City adopted plans as follows: the Wasilla comprehensive
plan adopted in 1996, and amended to include the City of Wasilla Trails Plan in 1999, to include
the Wasilla Alaska Railroad Relocation Reconnaissance Study in 2004, and to include the
Wasilla All Hazard Mitigation Plan Phase I-Natural Hazards in 2005. The Wasilla Municipal
Code makes no reference to a "Parks and Recreation plan for the entire Sports Center" as a City
adopted plan, and the record contains no evidence of the existence of such a City adopted plan.
The Commission found that "[t]he proposed outdoor shooting range is consistent with the
Comprehensive Plan 1996 Current Land Use Map which designates the subject property as,
'Vacant/Open SpacefUndeveloped'; and the 1996 Expected Future Land Use Map which
designates the subject property as 'Mixed Use Area,.,,4o
i.
The Eminent Domain Matter is Not a "City Plan" and Any Reference
to Trails and Other Improvements does Not Create an Exhaustive
List which Legally Binds the City in Any Manner.
The Appellants appear to assert that the firing range is contrary to "city plans." Sua
sponte the Appellants expand the definition of city plan to include an isolated page from a 2002
eminent domain court complaint. According to the Appellants, the first page (and only the first
page) of Annex 1A (an eminent domain Court complaint) fails to specifically enumerate "firing
or shooting ranges" as an additional improvement that can be part of the Menard Sports
39
40
R. 256-257.
PRo 68-72; R. 256-257.
9
Appellee's Brief
Complex; therefore, a firing range is therefore somehow banned as being contrary to a Hcity
plan.,,41
The Appellants present only the first page of a Complaint for Eminent Domain in City of
Wasilla v. The Nature Conservancy et. ai., 3AN-02-13590 CI., to stand for the proposition that
the City created a plan which requires ball fields to be built and excludes the construction of any
other facility or structure.
This argument is not based in law or logic.
There is no legal
requirement that the City must construct any incidental improvement when there is an eminent
domain taking; nor is there case law that forbids the City from using property acquired by
eminent domain for additional public purposes when funds and policy present the option.
ii.
The Appellants Erroneousl)! Argue Exhibit A to Resolution 02-39 is a
"City Plan" that Prohibits the Construction of a Firing Range.
The Appellants assert that Exhibit A, to Resolution 02-39, creates a city plan which gives
rise to an exhaustive list of what can be built on the property in question. 42 Again, this argument
is not based in law or logic. Exhibit A to Resolution 02-39 does not create an exhaustive list of
what can be built on the subject property. A neutral reading of Exhibit A to Resolution 02-39
demonstrates the lack of commitment to what will be ultimately built on the subject property.
Exhibit A to Resolution 02-39 reads in pertinent part:
The second part of this project consists of a new complex of indoor
and outdoor sports and recreational facilities, including an indoor
arena, outdoor ball fields, and a trailhead and trails connecting to
the existing and projected trail system in western Wasilla. 43
Clearly, this language does not intend to create an exhaustive list. In fact, a "firing
range" would clearly fit within the description of "recreational facility."
Appellants' Briefpgs. 17-19 (Annex lA, IB and IC).
Appellants' Briefpgs. 18-19 (Annex IB and lC).
43 ld. (emphasis added).
41
42
10
Appellee's Brief
There is no legal requirement that the City construct any incidental improvement when
there is an eminent domain taking; nor is there case law that forbids the City from using property
acquired by eminent domain for additional public purposes.
iii.
The 2003 Airport Master Plan's reference to the Sports Center does
Not Create a "City Plan" as to the Menard Sport's Center 'which
Binds the City in Any Way.
The Appellants present a document labeled Airport Master Plan!Annex 2 which is
intended to stand for the proposition that the City cannot construct a firing range because firing
ranges do not appear as a potential use on this document. It appears this document was drafted
in 2003. 44 The Appellants do not address whether or not this document has been modified in the
last seven (7) years. Even if the 2003 Airport Master Plan had any relevance at all, the document
presented by the Appellants as the 2003 Airport Master Plan, would accolnmodate the building
of a firing range. The pertinent language presented by the Appellants is as follows:
"parcels east of the airport are currently owned by the City and a
private individual and are anticipated to be used for development
of a regional sports complex, governmental and private offices,
facilities and services supporting the sports complex. The City
does not anticipate adding these properties to the airport reserve.,,45
This language includes "facilities" to be built near the complex to support the complex. A firing
range would support the complex in numerous ways but undoubtedly the firing range will bring a
strong economic engine or support to the facility.
Appellants' Briefpg. 20 (Annex 2).
Appellants' Briefpg. 20 (Annex 2) (emphasis added); if the Appellants were correct that this language controlled
what could be built then soccer, football and other sports fields would be prohibited as well because these facilities
are not enumerated either.
44
45
11
Appellee's Brief
iv.
The Commission Adopted the Findings of Facts.
Appellants appear to assert that the Planning Commission failed to sign or adopt the
findings of facts. 46 If the argument has been deciphered correctly, it is based on faulty facts.
The Commission reaffirmed the decision of Resolution Serial No. 09-02 and adopted Planning
Commission Resolution Serial No. 10-09.
The Planning Commission further approved the
application with Findings of Fact, which was attached to Resolution No.1 0-09 as Exhibit A. 47
B.
The Firing Range Will Not have Significant Off-Site Impacts.
The Appellants assert that the off-site impacts will significantly impact surrounding
properties. Any off-site impacts such as noise will be mitigated by the restrictions, design and
construction requirements of the firing range.
The firing range will be constructed following the NRA Range Source Book: A Guide to
Planning and Construction manual. Further an on-duty range officer, vegetative buffer of trees,
20 foot earthen berm, limited hours of operation, calibers less than .50 and sound proofing the
firing line will mitigate off-site impacts by dampening noise and implementing safe fire practices
will stop projectiles from leaving the site.48
The critical off site impact concern is sound/noise.
According to Mr. Mullins, the
acoustical expert hired by the City, peak sound levels up to 87 dB are considered "normally
acceptable" for noise-sensitive land uses such as residential zones. Impulse sound measurements
for firearms are typically 20 decibels lower than peak values, and "fast values are 6-8 decibels
lower still. 49 The net effect is that peak levels of 87 dB are comparable to many commonly
Appellants' Briefpg. 3 of 13.
R. 297; 298-302.
48 PRo 67; R. 301 (Staff finding 29).
49 "Impulse" uses 35 milliseconds, or about fOUf times faster that the fast setting. "Peak" uses the highest value
seen, even if it occurs for only an instant Different time settings will yield different resolutions, with faster settings
better capturing the profile of quicker events. R. 273.
46
47
12
Appellee's Brief
occurring sounds in the area that Inight measure roughly 60-65 decibels using the "slow" or
"fast" setting on the sound meter. 50
At the nearest hotne (located approximately 700 feet to the south of the range) the
predicted rifle sound levels are 74 dB peak or less. 51 These levels are well below the U.S. Army
noise and annoyance criteria of 87 dB peak. 52
At the May 2010 Planning Commission hearing Mr. Mullins testified to the following:
I tried to be conservative, picked the loudest thing that we're likely
to see on any recurring basis and go from there and when I include
the various factors that went into the design of the range to help
contain and limit noise, what I found is that the nearest home to the
south 700 feet away, the predicted level is 74 decibels as a peak lilnit
and, of course, the Army criteria we've talked about is 87 decibels so
we're about 13 decibels below that criteria. 53
There will be no significant off-site impacts. 54
III.
Failure to Meet Specific Approval Criteria.
The Appellants reference the CUP application submitted on April 19, 2009 and approved
on May 12, 2009 asserting that the 2009 application did not meet the basic requirements for
obtaining a CUP. 55 This argument, as to the 2009 application is not timely to this appeal and is
not relevant to this appeal. 56
Further, it appears the Appellants are asserting that the Menard Sports Arena is an
accessory use to the outdoor firing range and therefore the firing range cannot be located in the
50 The "slow" setting uses a 1 second response time or averaging period. "Fast" uses 1/8 second or 125 milliseconds
-think of that as eight samples per second. R.273.
51 This calculation is based on a .50 caliber weapon. Such weapons are not permitted on the range.
52 R. 278.
53 Tr. pg. 6, lines 12-20.
54 It is important to stress that pursuant to the previously imposed conditions the range will have limited hours of
operation (10:00 a.m. to 8:00 p.m.); Posted rules at range; Range officer always present; fourth side will be
ballistically protected; limited firearms to less that .50 caliber and excludes black powder. PRo pg. 67; see also;
Tr. 143. lines 18-23.
55 App~llants' Briefpg. 2 of 13; see also, PRo 1.
13
Appellee's Brief
vicinity of the Arena because the Arena has limited sale of alcoholic beverages. This argument,
as to the 2009 application is not timely to this appeal and is not relevant to this appeal. 57
However, if the Administrative Hearing Officer entertains the argument, it appears the
Appellants are operating under the misunderstanding that the Menard Sports Complex is still
contracting with the Alaska Avalanche Hockey Club. 58 Alaska Avalanche Hockey had a liquor
license to sell beer.
The Menard Sports Complex is no longer contracting with Alaska
Avalanche Hockey.59
Even if one were to speculate that the Menard Sports Complex would host another
special activity in the future where the City contracted with a vendor that provided limited
alcohol service, the alcohol would be restricted to the Menard Sports Complex. 60 The Menard
Sports Arena has never had a permit to sell or provide alcohol in the facility or on the outside
grounds of the Arena. Alcohol has only ever been allowed in the Arena at a special event with
an outside vendor permit.
In conclusion, it would be a criminal offense to sell or possess alcohol in the shooting
range. Alcohol is prohibited in the shooting range by Wasilla Municipal Code and State law. 61
IV
4
The Environment will be Adequately Protected from Lead Hazards
In an effort to address all issues and without waiving the claim that Appellants' argument
as to lead hazards exceeds the scope of the three remanded points from the first appeal of this
matter, the Appellee will endeavor to respond to the lead hazard argument. 62 The issue of lead
WMC 16.36.060 provides fifteen (15) days to appeal a Planning Commission Order or Decision.
Tr. pg. 33, linesl-4. The City/Menard Sports Complex does not have an alcohol permit of any kind. Any
assertion otherwise is not substantiated by the record. If alcohol is sold on the premises it is an outside vendor's
license and is temporary in nature.
59 This information is not in the record but it readily known and believed to be uncontested public knowledge.
60 It is further contrary to the law to possess a fireann where an intoxicating beverage is sold. See, AS
11.61.220(a)(2).
61 WMC 16.08.060.K(4); AS 11.61.200(a)(4); (a)(7).
57
58
14
Appellee's Brief
bullets being used at the firing range is not a new issue or an issue that could not have been
anticipated when the matter was first appealed. 63
The Appellants present an unsubstantiated concern that there will be lead contamination
Issues.
The Appellants cite to parking lot drainage issues and off-site drainage concerns. The
firing range will be self-contained and there will be no off site drainage issues like there are with
· 1ots. 64
parklng
In addition the Planning Commission also provided specific direction on which practices
should be observed to deal with the issue of lead contamination.65 The Planning Commission
specifically required that "the City shall actively seek to achieve the certificate of recognition for
implementing the Best Management Practices for Lead at Outdoor Shooting Ranges.,,66 The
Planning Commission went as far as to make the EPA Best Management Practices for Lead at
Outdoor Shooting Ranges an exhibit to the CUP. Given these detailed practices were made part
of the CUP it appears the Planning Commission took every precaution to protect the environment
from lead contamination and to protect the surrounding watershed. 67
V.
All Procedures were Followed by the Commission.
The Appellants' Section V. does not contain argument. 68
The section only cites to
different code provisions. 69 This is clearly inadequate and should not be considered by the
63Id.
64 Further, the Planning Commission heard testimony the following testimony regarding lead pollution,
Ammunition nowadays, as far as lead pollution, it's not an issue. Current
manufacturing ammunition requires the lead be produced in such a manner that
it will not leach. Okay? Yes, there will be lead recovery - - okay - - and that
will be done according to the EPA's standards. I just want to let people know
that modern lead does not leach into the soil. EPA made that a mandate many
years ago so that's not truly an issue.
Tr. pg. 63, lines 8-17.
65 R. 296; 303-405.
66 R. 296: 303-405.
67Id.
'
68 Appellants' Briefpgs. 7-8.
15
Appellee's Brief
Hearing Officer. However, in an effort to address all issues of concern, the Appellee will make
and effort to decipher and develop the arguments in order to respond.
Notice of the May 11, 2010 Planning Commission Hearing was provided on April 29,
2010. 70 The contents of the notice April 29, 2010 notice '"gave members of the public sufficient
information to decide whether their interests could be affected by the agency action.,,71 The April
27, 2010 notice was provided within the minimum notice requirelnents of Wasilla Municipal
Code (WMC) 16.16.040(A)(2)(e) and therefore the Appellants' first briefed point on appeal
should be rejected.
The April 29, 2010 notice was adequate given the principle of "substantial cOlnpliance."n
In First National Bank ofAnchorage, 73 the Appellants challenged the adequacy of the notice of a
proposed regulation. The Alaska Supreme Court rejected the appellant's claim because the
contents of the notice "gave members of the public sufficient information to decide whether their
interests could be affected by the agency action.,,74 Similarly, in other jurisdictions where the
enactment of zoning actions were upheld under a theory of '"substantial compliance," when
procedural irregularities can all be characterized as minor. 75 Here the procedural irregularities
are minor as discussed in detail below.
Id.
R. 72.
71 R. 72; see also, State v. First National Bank ofAnchorage, 660 P.2d 406. (Alaska 1982).
72 Lazy j\;fountain Land Club v. Matanuska-Susitna Borough Bd. Of Adjustment and Appeals, 904 P.2d 373, 381
(Alaska 1995).
73 660 P.2d 406; see also, Lazy Mountain, 904 P .2d at 381.
74 I d. at 425.
75 See, Lazy Mountain, 904 P.2d at 381, fn. 43 e.g., Jarvis Acres, Inc. v. Zoning Comm'n of E. Hartford, 301 A.2d
244 (1972) (notice was adequate when published in two different newspapers when statute required publication in a
single newspaper on two different days);Northern Operating Corp. v. Town o.fRamapo, 259 N.E.2d 723 (1970).
69
70
16
Appellee's Brief
B.
The City Notification of the Commission's May 11, 2010 Hearing did Not
Violate the Appellants' Due Process Rights.
The Appellants' appears to assert the truncated timeframe created an inadequate time
period for the public to respond in writing to the April 29, 2010 notice of the Planning
Commission Hearing; or for the Planning Commission to review the written comments. This is
not accurate. It appears the Appellants, in this matter, either provided written comment in
response to the April 29, 2010 notice or appeared and gave oral testimony and there were
nUlnerous hours of public testimony given in 2009 and 2010. 76
1.
It Appears the Appellants Provided Written and Oral Comment and
therefore These Appellants Cannot Assert a Due Process Violation.
It seems disingenuous for the Appellants to continue to assert the public had insufficient
time and information upon which to decide if their interests were affected and to make sufficient
comment to the Commission when it appears that the Appellants utilized their opportunity to
give oral testimony and provided written statements. 77 It appears to be more of an argument
borne out of a perceived technicality than an actual violation of due process or harm.
Therefore, given the Appellants appear to have made written comn1ent and/or oral
comment or had a representative make COlnments on their behalf, there can be no viable assertion
their due process rights were violated or any harm occurred. In order to make a "due process
rights violation" there must actually have been a violation. The Appellants had a full opportunity
to comment and took full advantage of the same.
76 It appears Mr. Baker and Mr. Katkus are the only appellants involved in the appeal. However, the Appellee has
attempted to locate aU interested parties noted in the original application: R. 76, 83 (Dorothy and Merle Frank); 75
(Hudson); 77 (Klein);79 (Ron and Judy Hills); 80 (Tuttle); 85 (Biggs); 87 (Katkus); 201 (Baker); 206 (Petersen);
207 (Dault); Maketa Tr. pgs. 41-42 lines 13-23; (Rogness) pgs. 23-25, lines 24-22; (Hills) pg. 26, lines 7-25.
77 ld.
17
Appellee's Brief
2.
The Planning Commission had All the Written Comments for Their
Review.
The Planning Commission had ample time to review the comments made on the matter
before them on May 11, 2010. In order to prepare the Planning Commission Packets the City
Planner sets a deadline for written comment.
The written comment deadline is set one week
prior to the relevant Planning Commission Hearing. However, even if a comment does not
arrive by the deadline all comments are provided to the Planning Commission. 78
The Planning Commission received all comments made by close of business on May 4,
2010 in their packets which were available one week prior to the May 11,2010 hearing. The
Appellants had drafted comments in a timely fashion and their comments were available in the
Planning Commission's packets on May 4, 2010. 79 Therefore, the Appellants due process rights
were not violated because their comments were received and reviewed by the Planning
Comlnission a week prior to the May 11, 2010 hearing.
As noted above, even if the Appellants' comments had been received on or after May 5,
2010, any comments received after May 4,2010 were also provided to the Planning Commission
on or before the hearing date.
Further, the comments received after May 4, 2010 were on
identical forms to those received on or before May 4, 2010 and all contained limited written
comment. The average comment was only a few sentences or in many cases a few words. so The
Commission was able to review the comments in an expeditious manner during the hearing and
during numerous breaks during the hearing. 81 The Planner also took the time to summarize the
comments that were not timely in order to assist the Commission in their review. 82
Tr. 10, lines 23-25; Tr. 11, lines 1-18.
R. 82 and 89-104.
80 R. 75-247.
81 R. ex. 201-247.
82 Tr. pg. 10, lines 23-25; Tr. 11, lines 1-18.
78
79
18
Appellee's Brief
There was no meaningful violation of the notice requirement that should necessitate the
rejection of the Commission's decision. The members of the public had sufficient information to
decide whether their interests could be affected by the agency action and to make comment. 83
c.
The May 11,2010 Hearing Did Not Violate Appellants' Due Process Rights.
L
The Planning Commission was Permitted to Limit the Scope of their
Review.
The matter before the Comlnission on May 11, 2010 was a CUP remand. 84
The
Commission was permitted to limit their review and inquiries to the three "remanded" issues. 85
The August 14, 2009 Order specifically ordered: "There is no requirement that the balance of the
findings previously made be revisited unless the Commission so desires at its discretion.,,86
The Commission had received numerous written public comments and had heard hours of
oral testimony covering numerous topics both in the previous hearings in 2009 and the May 2010
written and oral comments. The Planning Commissioner, in an effort to focus the discussion to
the relevant topics did make multiple efforts to direct the discussion to the issues before the
Planning Commission but, even with that effort, the Planning Commission did hear, discuss and
make amendments to the CUP that were beyond the three remanded points. (The following were
additions to the CUP 10-09(AM) that were beyond the three issues on remand: 1. Orientation of
the firing lines; 2. specific heights of the earth berms; 3. length of roof over the firing lines; and
4. the requirement that the City shall actively seek to achieve the certificate of recognition for
implementing the "Best Managelnent Practices for Lead at Outdoor Shooting Ranges,,)87 The
fact, the Commission made multiple additional restrictions to the CUP that did not involve the
Id. at 425.
R. 261-270.
85 R. 269; Tr. pg. 25, lines 18-23.
86 R. 269.
87 R.295-296.
83
84
19
Appellee's Brief
three issues clearly reflected their willingness to entertain the ideas and comments of the public
while and the same time directing the public comment to the relevant three remanded points at
hand.
Given the Administrative Hearing Officers August 14, 2009 Order, glVlng the
Commission the authority to limit the issues revisited to the three remanded topics, it is feeble to
argue that there was not a full and fair opportunity to be heard on topics unrelated to the three
remanded issues.
VI.
The Findings are Not Supported by the Evidence.
The Appellants' Section VI contains limited discussion or argument. 88 Section VI is full
of conclusions drawn by the Appellants without support; and essentially leaves the reader to
devise what the different code provisions Inean. 89 Further, the Appellants make declarations or
assertions based on opinion or conjecture but no analysis or reference to legal precedent.
Section VI A-K is clearly inadequate and should not be considered by the Hearing Officer.
However, in an effort to address all issues of concern, the Appellee will make and effort to
decipher and develop the arguments in order to respond. In that effort it appears the Appellants
quickly reference the following arguments labeled here VI A through VI K:
A.
"The evidence ---liquor license #4730"...
This is a repeat of earlier arguments. It appears the Appellants are asserting that the
Menard Sports Arena is an accessory use to the outdoor firing range and that the firing range
cannot be located in the vicinity of the Arena because alcohol has been sold on the premises in
the past. This argument, as to the 2009 application, is not timely to this appeal and is not
relevant to this appeal.
88
89
Appellants' Briefpgs. 7-8.
1d.
20
Appellee's Brief
Even if the Menard Sports Complex contracted with a vendor that provided limited
alcohol service, the alcohol would restricted to the Menard Sports Complex.
9o
The Menard
Sports Arena has never had a permit to sell or provide alcohol on the grounds of the Arena. It is
understood that alcohol has only ever been allowed in the Arena under a special event type
permit, with a licensed vendor, under a valid contract with the City of Wasilla.
B.
"The evidence --- resolution 09-13"...
The Planning Commission has the authority to place restrictions on a CUP and to add
conditions thereto. 91 The Parks and Recreation Commission has no such authority.92
It is further contrary to the law to possess a fireann where an intoxicating beverage
11.61.220(a)(2).
90
91
IS
The
sold. See, AS
WMC 16.08.010.A.3 reads:
A.
The developer of a use shall apply for and obtain the appropriate approval prior to the
establishment of a use or any site work except surveying.
3.
Conditions. The council, commission or planner may place conditions upon issuance of
any approval which are necessary or desirable to ensure that a rule, policy, standard or
intent will be implemented in a manner consistent with this title, the comprehensive plan
and any rule, policy or standard implementing them.
WMC 2.60.060AA the decisions of the Planning Commission pennit the Commission to place conditions on
permits:
A.
All permit actions of the commission must be in the fonn of a resolution
setting forth:
4.
Conditions on the permit.
Further, pursuant to WMC 2.60.010.B.6:
B.
The commission shall:
6.
92
Hear and decide all pennit applications that require a public hearing,
including but not limited to applications for variances, rezones, and
other procedures that may be required by the land development code;
WMC 2.64.010 contains the enumerated duties of the Parks and Recreation Commission are:
21
Appellee's Brief
orientation of the range can be dictated by the Planning Commission as a condition of approval
in order to mitigate off-site impacts. 93 The Appellants' argument is lacking in legal basis.
C.
"The lack of evidence --- Parks and Recreation Commission's Resolution
'Orientation' of Firing Range ..."
The Planning Commission reviewed CUP application, site plans, drainage plans, parking
plans, lighting plans, excavating plans, and staff reviews.
The Planning Commission had
exhaustive hearings on this matter and had numerous discussion and debates on the issues. To
simply call these efforts worthless is an uninformed and ignorant opinion which contains no
evidentiary or legal support for the comment and should be ignored as frustration borne from a
"not in my back yard" blind spot.
D.
"The evidence---Mullin's Acoustic Report & His Testimony / Transcripts..."
The Appellants make the assertion that the Mullin's acoustic report "clearly demonstrates
that the firing range will generate excessive noises "41 dB over and above the US Army 87db."
This distorts the Mullins reports findings and Mr. Mullin's testimony.94
A. The parks and recreation commission is established. The commission shall
consist of five members, all of whom shall be residents of the city.
B. The purpose of the commission is to advise the city on matters pertaining to
parks and recreation facilities.
C.
The commission shall:
1. Coordinate with, and obtain approval of the planning commission on
site locations and general development plans for parks and recreation
facilities;
2. Recommend to the council proposals for the general and specific
development of parks and recreation facilities and programs;
3. A'isist the city in enrolling and assisting volunteer groups and
individuals to operate, maintain, or improve city parks and recreation
facilities and programs.
93
Id.
94
R. 272-273.
22
Appellee's Brief
The best fireanns noise/annoyance criteria available COlnes from the U.S Anny,
published in Document AR 200-1. 95 They indicate that peak sound levels up to 87 dB are
considered "nonnally acceptable" for noise-sensitive land uses such as residential zones. That
threshold is based on less that 15% of the population being annoyed by gunshot noise, and 1010
being highly annoyed. Higher levels of 88-104 dB peak are considered "nonnally incompatible"
with noise sensitive land uses, with up to 130/0 of the population categorized as "highly
annoyed.,,96 Levels above 104dB peak are considered incompatible with residential and other
noise-sensitive uses. 97 Sound meters use various time constants or averaging periods when
measuring sound. The "slow" setting uses a 1 second response time or averaging period. "Fast"
uses 1/8 second or 125 milliseconds -think of that as eight samples per second. "Impulse" uses
35 milliseconds, or about four thnes faster that the fast setting. "Peak" uses the highest value
seen, even if it occurs for only an instant. Different time settings will yield different resolutions,
with faster settings better capturing the profile of quicker events.
Impulse sound
measurements for firearms are typically 20 decibels lower than peak values, and "fast
values are 6-8 decibels lower still.98 The net effect is that peak levels of 87 dB are comparable
to many commonly occurring sounds in the area that might measure roughly 60-65 decibels
using the "slow" or "fast" setting on the sound meter. 99
At the nearest home (located approximately 700 feet to the south of the range (using
prohibited .50 caliber weapons lOO » the predicted rifle sound levels are 74 dB peak or less. These
levels are well below the U.S. Anny noise and annoyance criteria of 87 dB peak. 101
R. 272.
R. 272.
97 R. 272.
98 R. 273.
99 R. 273.
100 PRo 67.
101 R. 278.
95
96
23
Appellee's Brief
At the May 2010 hearing Mr. Mullins, in accord with his AprilS, 2010 Noise Analysis,
testified to the following:
So I tried to be conservative, picked the loudest thing that we're
likely to see on any recurring basis 102 and go from there and when I
include the various factors that went into the design of the range to
help contain and limit noise, what I found is that the nearest home to
the south 700 feet away, the predicted level is 74 decibels as a peak
limit and, of course, the Army criteria we've talked about is 87
decibels so we're about 13 decibels below that criteria. 103
[w]e also looked at some other issues, the noise that we could expect
indoors for homes, the noise that we could expect at a coffee stand
tucked in against the berm on the outside of the sports center but also
outside of the firing line and, you know, we basically didn't find too
much to be concerned about in terms of occupation noise exposure
or indoor noise levels due to firearms... 104
To recap, 20-foot high berm, roof over the firing line, orientation of
the firing direction and put the most intense high-powered, extreme
high-power rifles on the easternmost lanes and at that point, that kind
of summarizes the facts and I'll stand ready for any questions or
clarifications you might need. !Os
E.
"The evidence --- Applicant's Response to WMC 16.16.050A(11) ..."
This argument appears to be a repeat of a previous point on appeal. However, in an effort
to address all issues, without waiving the aforementioned timeliness claim, the Appellee will
address the issue of lead contamination.
The Appellants present an unsubstantiated concern that there will be lead contamination.
The Planning Commission provided specific direction on which practices should be observed to
102 It is important to note, that pursuant to Resolution Serial No. 09-13 (AM), the caliber of weapons permitted at the
range is limited to less than .50 caliber and no black powder weapons at all. Therefore, all of the Mullins Report
calculations are overstated in that they are based on a maximum caliber (.50) that is actually not permitted at the
range. The decibel levels will never reach those created by a .50 caliber weapon or a black powder weapon
because the CUP prohibits aU .50 caliber and black powder weapons. PRo 67.
103 Tr. pg. 6, lines 12-20. See also, Resolution 09-13(AM) in that the caliber is limited to less than the Mullins
Report anticipated as the "loudest thing we are likely to see" (i.e., less than .50 caliber and no black powder). PRo
67.
104 Tr. pg. 7, lines 4-11.
105 Tr. pg. 9, lines 13-18.
24
Appellee's Brief
deal with the issue of lead contamination. The Commission specifically required that "the City
shall actively seek to achieve the certificate of recognition for implementing the Best
Management Practices for Lead at Outdoor Shooting Ranges.,,106 The Commission went as far
as to make the EPA Best Management Practices for Lead at Outdoor Shooting Ranges an exhibit
to the CUP.
Given these very detailed practices were made part of the CUP it appears the Planning
Commission took every precaution to protect the environment from lead contamination and to
protect the surrounding watershed. lO ? The Appellants' argument is without merit.
F.
"The evidence --- resolution 09-13 ..."
This argument is untimely and was required to be appealed in 2009. This argument is a
baseless conc1usory statement not supported by law or facts and requires no response.
G.
"The evidence --- resolution 10-09 ..."
This argument is a baseless conc1usory statement not supported by law or facts and
requIres no response.
H.
"The evidence --- Council Resolution no. 02-39 ..."
Exhibit A, to Resolution 02-39, is not a city plan which creates an exhaustive list of what
can be built now and forever on the property taken for eminent dOinain purposes.10 8
There is no legal requirement that the City construct any incidental improvement when
there is an eminent domain taking; nor is there case law that forbids the City from using property
acquired by eminent domain for additional public purposes.
106
R. 296; 303-405.
107 1d.
108
Appellants' Briefpgs. 18-19 (Annex IB and Ie).
25
Appellee's Brief
I.
"The evidence --- Unfair Public Hearing May 11,2010 ..."
This argument is a baseless conclusory statement not supported by law or facts and
requires no response.
J.
"The evidence --- Wasilla Mayor Verne Rupright."
The Appellants present irrelevant dictulTI from newspaper articles and e-mails from
administration staff. "Stopping work" on the firing range was a legal requirement because the
CUP was rescinded by the Administrative Hearing Officer until such time the Administrate felt
the three remanded points could be addressed adequately.
Again, this argument is a baseless conclusory statement not supported by law or facts and
requires no detailed response.
K.
"CUP 09-01 ... NRA guidelines ..."
Again, Resolution 09-01 is not before the Hearing Officer. 109 As noted above, WMC
16.36.060 provides fifteen (15) days to appeal a Planning Commission Order or Decision. The
issues that were previously briefed or reasonably could have briefed are waived. However, as
noted throughout the Appellee's Brief, without waiving the argument that these arguments are
time barred, the Appellee will attempt to decipher the argument and respond in case the
Administrative Hearing Officer entertains the untimely argument.
The short answer is that all of the applicable NRA guidelines and EPA guidelines have
been incorporated. After reviewing the 09-01 record, as to the NRA guidelines, the outdoor
16.36.060 provides fifteen (15) days to appeal a Planning Commission Order or Decision.
A.
I09 WMC
26
Appellee's Brief
WMC
Shooting Range will utilize safety measures for backstops and fencing as specified in The NRA
Range Sourcebook: A Guide to Planning and Construction. 11o The facility is designed and
follows The NRA Range Source Book: A Guide to Planning and Constnlction design standards
for mitigation of impacts such as noise. Noise will be mitigated by following the NRA design
and construction standards for soundproofing. 111
Further, the City it its May 12, 2009 Staff
Report indicated that:
[t]he City proposed to construct an Outdoor Firing Range per
The NRA Range Sourcebook: A Guide to Planning and
Construction standards and the range will feature 3main lanes,
100 yards, 75 yards, and 50yards, with 5-6 shooting positions on
each lane. There will also be an enclosed 16' Xl 00' firing line
building with benches with an over-hang roof, fencing, and a
perimeter road. Earthen berms 20' in height will enclose the
range on three sides with an 8' chain link fence outside the berms
and an access and maintenance road outside the fence. The City
intends to partner with anon-profit, who will then set the hours of
operation with hours prohibited before 8AM and after 10 PM. A
range officer will be present during operating hours to oversee
management of the range. 112
These design criteria are specific and were clearly articulated in 2009.
Specifically, as to lead remediation, the Commission required that the Appellee "seek to
achieve the certificate of recognition for implementing the Best Management Practices for Lead
at Outdoor Shooting Ranges.
The requirement is specific.
The Appellee "shall" strive to
achieve the certificate of recognition for implementing the EPA best practices.
This is not
vague. The City must take the necessary steps to achieve the certificate. It the Appellee fails to
take those steps the City will be in violation of the conditions of the CUP.
PRo pg. 9.
PRo pg. 7; PRo pg. 42 (staff finding 20); PRo pg. 43 (staff finding 30).
112 PRo pg. 45.
110
III
27
Appellee's Brief
VII.
The Commission was Permitted to Limit the Scope of their Review.
The matter before the Planning Commission on May 11, 2010 was a CUP remand. 1l3
The Commission was instructed that they were permitted to limit their review and inquiries to
the "remanded" issues. 1l4
The August 14, 2009 Order specifically stated: "There is no
requirement that the balance of the findings previously made be revisited unless the Commission
so desires at its discretion.,,115
The Commission had received numerous written public comments and had heard hours of
oral testimony covering numerous topics both in the previous hearings in 2009 and the May 2010
written and oral comments. The Planning Commissioner, in an effort to focus the discussion to
the relevant topics did make multiple efforts to direct the discussion to the issues before the
Planning Commission but, even with that effort, the Planning Commission did hear, discuss and
make amendments to the CUP that were beyond the three remanded points. (The following were
additions to the CUP 10-09(AM) that were beyond the three issues on remand: 1. Orientation of
the firing lines; 2. specific heights of the earth berms; 3. length of roof over the firing lines; and
4. the requirement that the City shall actively seek to achieve the certificate of recognition for
implementing the "Best Management Practices for Lead at Outdoor Shooting Ranges,,)1l6 The
fact, the Planning Commission made multiple additional restrictions to the CUP that did not
involve the three issues clearly reflected their willingness to entertain the ideas and comlnents of
the public while and the same time directing the public comment to the relevant three remanded
points at hand.
R.
R.
115 R.
116 R.
113
261-270.
114
269; Tr. pg. 25, lines 18-23.
269.
295-296.
28
Appellee's Brief
Given the Administrative Hearing Officers August 14, 2009 Order giving the Planning
Commission the authority to limit the issues revisited to the three remanded topics, it is feeble to
argue that there was not a full and fair opportunity to be heard on topics unrelated to the three
remanded issues.
VIII. Conclusion.
For the reasons stated above, the decision of the Commission approving the application
of the City of Wasilla for a firing range conditional use should be affirmed.
DATED this 1st day of November 2010.
29
Appellee's Brief

City`s Response - Wasilla Sports Complex

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