Commission: Duran needs permit for noisy construction site

Company ordered to halt work until permits OK'd

Posted: Wednesday, January 15, 2003

If a local construction company wants to drop boulders from 70 feet in the air, early in the morning, for days at a time, it will have to apply for a conditional-use permit, the Juneau Planning Commission ruled Tuesday night.

The Planning Commission, after hearing an appeal, upheld a compliance order issued to Duran Construction Co. last summer.

The city ordered Duran to stop working July 12 at its Alaway Avenue site until it obtained the proper permits. The city said company owners Josette and Marciano Duran processed rock and tposoil in a general commercial zone, where processing is prohibited, and stored construction materials without a permit.

The seasonal company primarily builds homes, develops subdivisions, and sells topsoil and rock.

The company came under fire last summer when residents of two nearby trailer courts - Eagle's Edge Mobile Home Park and Lemon Creek Manor Trailer Park - complained of incessant industrial noise, vibrations and noxious fumes coming from the facility.

Neighbors said vibration and noise from boulders "the size of Volkswagens" dropped from cranes onto other boulders shook their homes.

Neighbors said the disruptions lasted from early in the morning until late at night every day for most of the spring.

In December, residents asked the Planning Commission to force Duran to comply with city rules.

Robert Spitzfaden, the Durans' attorney, and John Hartle, deputy city attorney, presented arguments to the commission at an appeal hearing Tuesday. No public comment was taken.

Spitzfaden agreed the Durans operated their facility since 1989 without a permit. But since 1999, they've been under the impression those activities had been "grandfathered" in by the city Community Development Department.

"When I first moved to Alaska and I met the old-timers," Spitzfaden told the commission, "their word was their bond and a deal was a deal. But you folks are saying, 'A deal's not a deal unless we say it's a deal.'

"You can't reopen something every time someone complains about something. If you can, then we'll be arguing about the same matter in 2020, with a new commission. Things have to have an end. This is the deal. You are stuck with it."

But Hartle said the city wants the Durans to apply for a permit and go through the public process so the city can regulate noise, hours of operation, and dust. He also argued the grandfathering of the site's activities was never clear in the city's written notes.

He also said the Durans' site always has required a permit for their activities - they've just never had one. They would have needed one to be legally grandfathered, he said.

He added that even if Duran had been grandfathered by the city, the activities on site have expanded beyond the Durans' original intent and the city's permission.

Ultimately the commission voted 4-2 that the compliance order would stand and the Durans would have to apply for a conditional-use permit.

"I agree a deal's a deal," said Commissioner Marshal Kendziorek. "But the way I see it, they broke the deal a long time ago by doing more than they ever told the city they were going to do on that site. They voided the deal."

The Durans said in a written statement to the Empire that they were disappointed with the decision and plan to appeal it to the Assembly.

"At last night's meeting, one Planning Commission member wanted to know why we shouldn't have to go through the same process and pay the same fees as other applicants," the statement said. " Well, we did go through the process, and now we are being forced to go through it again.

"We hope the city will do the right thing and stand by its prior commitment to us."

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