Assembly backs commission in Duran Construction case

Company owners say decision will put operation out of business

Posted: Tuesday, April 22, 2003

The Juneau Assembly late Monday upheld the Planning Commission's January decision requiring Duran Construction Co. to obtain a permit to process topsoil and store construction equipment on the company's Lemon Creek-area property.

The Assembly's vote was 6-2 against the company. A motion to grant a stay to enable the company to work during any 30 days between now and the end of July failed 5-3.

The Duran site has been shut down since last summer as the permitting issue moved between the commission and the Assembly.

Owners Marciano and Josette Duran said Monday night's decision essentially puts them out of business.

"Put our name right next to Kmart as another Juneau business defeated," said Marciano Duran. "It costs too much to move the operation, and space is so limited in Juneau anywhere you go is likely to be near a residential area."

The city issued a stop work order on July 12, 2002, for the Durans' Alaway Avenue site until the company obtained proper permits for the work it was doing. The city issued the order after neighbors in two nearby mobile home parks complained about noise, vibrations and fumes coming from the site.

The city said the Durans processed rock and topsoil in a general commercial zone where processing is prohibited, and stored construction materials on the property without a permit.

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

In January, the Planning Commission upheld last summer's compliance order. In February, the Durans filed an appeal, arguing the commission's decision was not supported by substantial evidence, that the commission failed to follow its own procedures, and that it did not abide by a 1999 ruling by the Community Development Department. The Durans allege the 1999 resolution grandfathered the storage yard as well as the processing as an accessory use on the property.

Robert Spitzfaden, the Durans' lawyer, reiterated those claims Monday night.

But John Hartle, deputy city attorney representing the Planning Commission, argued the commission could enforce the code because storage and processing were not allowed on the site before 1969. After 1969 the code changed to require a conditional use permit, he said. Hartle said the Durans never had a permit to process topsoil or to use the area as a storage yard.

The Durans said they filed for a conditional use permit after the Planning Commission's decision in January. They said they doubt it will be approved.

"I'm surprised Juneau is so anti-business and development," Marciano Duran said. "It's hopeless to think we have a chance."

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