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Assembly affirms nuisance order against property owners


The Petersburg Borough Assembly voted 5-1 during a public hearing to affirm an appealed nuisance abatement order issued by the borough’s building official against property owners who store commercial fishing gear on their residential lot.

Oct. 26’s hearing landed on a long list of interactions between Aaron and Katrina Miller and borough staff and officials dating back to 2006 when the Millers first purchased the lot at 107 Arness Heights Drive where they began storing commercial fishing gear.

According to borough zoning regulations, storing commercial gear on a residential lot is considered “accessory use”—meaning it must be used secondary to the principal use of the land, and in the case of single-family residential property, the principal use is living in a home.

The Millers don’t reside or have a home on the lot, and use it exclusively to store gear and other items. At last Monday’s hearing, to defend his case against the nuisance abatement order, Aaron Miller argued the borough’s Title 19 Zoning Regulations are unclear and subjective.

“I believe this is vague and subject to multiple interpretations,” Miller said. “Title 19 does not state that storage in a single family residential area is not allowed. We have a current and paid for building permit for the property that should constitute as the permitted use.”

In his appeal to the nuisance violation, Aaron Miller also stated the citation was a “clear case of selective enforcement and discrimination.”

He added during the hearing that if storage on residential lots is against code, “and subject to nuisance violations and abatement, most of the residential lots in town would be in violation.”

Community and Economic Development Director Liz Cabrera, who represented the borough during the hearing, said since an updated Nuisance Ordinance passed last April, borough staff addressed eight violations, including the Millers’.

She also said language in the zoning ordinance was “common sense” and the Millers’ use of the land was a clear violation.

“We (borough staff) interpret use customary, incidental and subordinate to include storage of commercial fishing gear,” Cabrera said. “This is why you see commercial fishing gear stored on residential lots in conjunction with a dwelling all throughout service area one. The accessory use is only allowed once the principal use is established. In this case a dwelling must be established. A dwelling is intended for occupancy by a family and must meet building codes and have a certificate of occupancy. In this case there is no dwelling on the property…without a dwelling there is no principal use established and therefore no accessory use allowed. Clearly the lot is being used only for storage.”

Since 2011, the Planning Commission issued two Conditional Use Permits (CUP) with conditions to the Millers, which would have allowed them to store their gear on the lot. The first CUP issued in 2011 required them to build a net shed and in 2013 the Planning Commission reviewed that CUP because the net shed was never built. Planning Commission members advised the Millers to request a zoning reclassification, and later unanimously supported the Millers request to rezone the lot to commercial two, which would allow them to store gear without any modifications to their lot. The Petersburg Borough Assembly later denied the zoning request 3-2 after hearing from some residential property owners in the area worried rezoning the lot to commercial two would lower their property values.

After another violation and appeal, the Millers later applied for a new CUP for a net house, which the Planning Commission unanimously approved on Feb. 12, 2015.

In August, the Planning Commission again revoked the CUP because its conditions had not been met—the Millers failed to build a fence and net house and Building Official Joe Bertagnoli issued a violation, telling them to remove their gear by Sep. 28 to avoid fines. By that date, the gear remained on the lot and Bertagnoli issued the abatement order and the Millers later appealed the order.

During the hearing to appeal the order, Aaron Miller added that he applied for a building permit for a 400 square foot structure before the CUP deadline for fence completion and that he believed the building permit would satisfy the building official and suffice as intent for the lots principal land use.

Miller said a poor fishing season made it difficult for his family to afford the cost of the fence and he let the CUP lapse because they were told by a borough staff member they would likely only receive a 30 day extension.

“So we chose a different avenue,” Miller said. “We got the building permit and we thought that would satisfy the building official for the time being and we could continue the use of our lot. Obviously we were mistaken. Here we are.”

Friends and family of the Millers spoke on their behalf along with neighbor John Murgas.

“If the borough has a zero tolerance of the zoning regulation you better start planning a bigger jail than what you already have planned,” Murgas said before Mayor Mark Jensen reminded Murgas to stay on topic.

Murgas’ reference of zoning issues was mirrored by many of those speaking on the Millers’ behalf, but strayed beyond the scope of the hearing and a subject Jensen continued to remind individuals was off topic.

The Borough Assembly ultimately voted to affirm the abatement order 5-1 with member Kurt Wohlhueter voting against it.

Wohlhueter said although he had many reasons to vote for the abatement order such as the Millers knowing they bought residential property with the intent to store gear and that both conditions of the CUP failed to be met, he ultimately decided the language of the zoning ordinance was unclear.

“I have a lot of reasons why I should vote for this,” Wohlhueter said. “But on the other hand I’m going to vote no against this because I don’t like idea that it’s not so specific that there would be holes in it.”

Jensen said the ordinance might be somewhat vague but the issue between the borough the Millers has gone on for a number of months.

“I do understand financial hardships but I also understand rules that are made and agreements that are made and at some point you have to enforce what’s on the books,” Jensen said. “If you don’t like it you go back to the assembly or planning and zoning and you change it. There might be some vagueness in this ordinance but it sounds like in order to have commercial gear stored on residential (lots) you first must have a dwelling that has a certificate of occupancy with it. So I’m in favor of the motion.”

The Borough Assembly will set a date for abatement at their Nov. 2 meeting. The Millers have 30 days from that point to appeal the decision to the Alaska Superior Court.


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