Council grants appeal to Kanosak LLC in property use dispute

The Nome Common Council granted an appeal by Joe Burnham, sole proprietor of Kanosak LLC, overturning a decision by the Nome Planning Commission that found Burnham’s use of a property not in line with the city’s code.
At the heart of the matter was the question if the conexes, vehicles, machinery and parts in various states of repair that are stored on Burnham’s lot south of Icy View and alongside Munz Field to the east and the Nome-Teller Highway to the west, are incidental to Burnham’s business of selling and leasing equipment or if the lot is used exclusively as a storage facility, which would be inconsistent with what is allowed in this commercial-zoned area.
The disagreement between the city and Burnham had been brewing since last year, when Burnham placed fill on that lot without seeking proper city permits first. The city threatened with a lawsuit but didn’t go through with it. However, the current disagreement does not take the fill complaint into account.
Earlier this year, the city clerk, acting on complaints by community members, issued an enforcement letter, telling Burnham that the use of the lot as an outdoor storage facility is not a permitted use in the commercial zoning district. Burnham appealed the city clerk’s determination and brought the matter to the Nome Planning Commission.
The commission was tasked to decide if the city clerk erred in his interpretation of the zoning code. The planning commission agreed with the city clerk’s findings and upheld that Burnham is using the property for outdoor storage in a commercial zoned district, and that the storage is not used as an accessory for any permitted or conditional use, nor is it related to an onsite wholesale or retail business. Items stored on the lot range from conexes to vehicles on flat tires, trucks, boats, trailers and heavy equipment.
Burnham now appealed the Planning Commission’s finding to the Nome Common Council, which sided with him and overturned the determination by the city clerk and the planning panel.
At the meeting, Burnham’s lawyer Stacey Stone said the city mischaracterized the property’s use as outdoor storage. She maintained that the five 40-foot shipping containers and seven 20-foot conexes with a combined 3,220 square feet of indoor storage and the outdoor storage as an accessory use would make it permissible under the city’s code of ordinances.
“The applicable provision is NCO, 18, 6020, which expressly permits warehousing and storage as a primary use in the commercial district, precisely, precisely the use being carried out on the property,” she said. “Second, the zoning code explicitly permits warehousing and storage as a primary use in the commercial district under NCO, 18, 6020, why this city’s attempt to distinguish between indoor and outdoor storage by requiring a roof structure, a term that is not defined anywhere in the code, is arbitrary and inconsistent with enforcement practices.”
She said the city itself charges for container storage at the port and other lots within the same zoning district being used exclusively for container storage. So why pick on one individual?
The City Planner Erin Reinders retorted that the city defines outdoor storage “as the keeping in an unroofed area any goods, material, merchandise or vehicles for more than 24 hours.” She explained that the city code allows for outdoor storage, including junk as an accessory use to any permitted or conditional use in the commercial zoning district. Accessory use means it is not the primary use but supporting a business and a building by storing inventory on the same lot. For the lack of a building that would support a business, Reinders concluded that the “outdoor storage is not an accessory use and is really being the primary use of the property.”
The city’s attorney Sam Severin was present at the council meeting and advised the panel that the question before them is not whether Burnham has a business, but whether “the storage is incidental to retail or wholesale sale on the premises.”
He likened the situation to running a bike store and using one’s property to store bikes. “I think the question is, really, is it incidental, or is it predominant?” he said.
During public comments, members of the public, Ken Kerr and Derek McLarty stepped to the podium to encourage the council to overturn the planning commission’s verdict.
Joe Burnham only briefly addressed the council, albeit not with comments relating to the dispute at hand, but he offered up $5,000 for a better sound system in council chambers as he said, it was very hard to hear council members conversing.
For the final rebuttal of the city’s arguments, Burnham’s attorney summed up her position: first she maintained that the use is indeed permissible and then questioned whether the city used a proper process to let property owners know that zoning laws were changed and a time limit was set to apply for a so-called non-conforming use. “If this is deemed to be a non-conforming use, the question will be: Was there due process with regard to the grandfathering? […] As a government entity, if you are going to restrict private property, then there are certain thresholds that must be met. And that is a question that if the issue today is not reversed, will be left with the courts to decide if indeed the city did provide the proper notice.”
With that threat of court action hanging in the air, the council had a decision to make and chose to deliberate behind closed doors. Before the council recessed into an executive session, city attorney Severin advised that the panel, “to please give reasons, because we need a record of the rationale” and “come back with findings of fact and conclusions, so we have a written record.”
After the executive session, the council — with all members present either in person or via zoom — cast the vote and granted Burnham’s appeal. The only dissenting vote to deny the appeal came from  council member Adam Lust.
No insight was provided as to the rationale of the decision, even after member of the public Thomas Simonsson inquired.  Asked by email the following day, Nome Mayor Ken Hughes told the Nugget: “The council, looking at the totality of the situation, decided for the Appellant.  The findings of fact and conclusions of law to which Mr. Severin referred was rendered superfluous by the decision for Mr. Burnham as it is unlikely he will pursue a court challenge to this decision.”
In other business, several seats on city commissions and boards were appointed and confirmed. Mayor Hughes re-appointed Melissa Ford to Seat A of the Planning Commission, a three-year term; appointed Drew McCann to Seat B of the Planning Commission, a three-year term; appointed John Odden to the Planning Commission, filling the remainder of this three-year seat, expiring October 2026; appointed Ryan Breuker to Seat F of the Planning Commission, for the remainder of the three-year term, expiring October 2027. Hughes also appointed Harvey Farley to seat D of the Nome Port Commission, a seat previously held by Drew McCann, who resigned from the port commission to serve on the planning commission.
The council voted to confirm all appointments.
The council then went into a second executive session, dealing with personnel matters.
The next council meeting is set for November 10.