18.104.060 Procedures for variances.
A. Generally. The Planning Commission may allow a departure from the numerical regulations of this title pertaining to the size of yards and open space areas, building height and size, lot area, number and location of off-street parking spaces and loading areas, and other matters pertaining to the operation and construction of permitted uses.
1. Situations where variances may be granted include, but are not limited to: exceptional narrowness, shallowness or shape of a specific piece of property at the time of the adoption of the ordinance codified in this title; exceptional topographic conditions; other extraordinary or exceptional situations or conditions of a specific piece of property; or because of existing situations or conditions that are generally prevalent in the immediate area that create a character similar to what would occur as a result of an approval of the request for a variance; or where the strict application of this title would result in a peculiar, exceptional and undue hardship, upon the owner of such property.
B. Application for a Variance. An applicant for a variance shall complete and submit the approved application form in accordance with the procedures established herein. The applicant shall be the owner of the property described by the application, the contract purchaser of said property, the holder of an option to purchase said property, or such persons that possess a substantial proprietary interest in the property being considered. The written consent of the owner, or an authorized representative having power of attorney, shall accompany all applications. The written consent of a holder of a security interest in the property does not need to be obtained.
1. An application for variance must meet the following standards:
a. Special conditions exist which are peculiar to the land involved and which are not applicable to other land in the same zoning district;
b. Strict interpretation of the provision of the zoning title would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of the zoning title.
2. The application shall also include the following information:
a. The legal and common description of the property on which the variance is to be considered;
b. The variance requested, and the reasons for the request;
c. The property’s present zoning classification;
d. A mortgage location survey or other similar survey drawn to the standard of practice for land surveyors as adopted by 12 AAC 36.250, showing all buildings, except temporary buildings, in relation to the relevant boundaries of the parcel. Borough staff will verify that the survey depicts all buildings and relevant current conditions to the best of their abilities. If the survey is deemed by Borough staff to not be current, a new survey will be required.
C. Hearing and Decision by the Planning Commission. The Planning Commission shall review, hear and decide whether or not to approve a request for a variance. In deliberations, the Planning Commission shall consider all admitted evidence from the applicant, interested persons and Borough staff. The Planning Commission shall also consider and adopt findings in each of the following:
1. Whether or not the proposed variance conforms to the intent and purpose of this title and of other ordinances and state statutes;
2. Whether or not the denial of the proposed variance will deprive the applicant the use of their property in a manner equivalent to the use permitted to be made by the owners of property in the immediate area;
3. Whether or not the proposed variance will protect the public health, safety and welfare, including protection from the impact of traffic, parking conditions, and the danger of fire;
4. The history of the development of the property.
The Planning Commission may approve or deny a variance request or may approve a variance request with conditions upon the property benefited by the variance as may be necessary to comply with the standards set forth in this title to ensure consistency with the general intent of this title.
D. Administrative Approval of Yard Setback Variance.
1. Notwithstanding any requirements in this chapter to the contrary, if a yard setback variance is being requested and the property meets the following requirements, the variance may be heard by the Planning Director or designee, as Hearing Officer, at an administrative hearing:
a. The relevant area of the building for which the setback variance is requested was built prior to April 25, 1988, or the setback violation existed when the property was purchased by the current owner prior to July 21, 2010;
b. The setback variance request is for 50 percent or less of the yard requirement;
c. The setback variance request meets the state requirements set forth in AS 29.40; and
d. The setback variance will not be injurious to the health, safety or welfare of the neighborhood.
2. Within five working days after the administrative yard setback variance application deadline, one of the following actions shall be taken by the Community Planning Department:
a. Accept the application for a review and action by the Hearing Officer;
b. Return the application if it is incomplete;
c. Schedule the application for a Planning Commission hearing if it is determined that a more comprehensive review is needed.
3. The Hearing Officer shall make the final decision within five working days of the hearing. If, as a result of the hearing, the Hearing Officer determines that conditions exist that may adversely affect the public health, safety or welfare, traffic or parking, or otherwise may necessitate a more comprehensive review by the Planning Commission, the Hearing Officer may forward the application to the Planning Commission in lieu of a decision. The requested variance shall be heard before the Planning Commission without an additional fee.
4. An administrative yard setback variance decision by the Planning Director or designee may be appealed by any aggrieved person, as defined in FNSBC 18.104.090(A)(4), to the Planning Commission by filing a notice of appeal with the Community Planning Department within 15 days after the final decision was mailed. The appeal shall be heard de novo by the Planning Commission. The Planning Commission’s decision may be appealed by a party to the superior court. (Ord. 2021-27 § 9, 2021; Ord. 2019-09 § 2, 2019; Ord. 2015-74 § 7, 2016; Ord. 2015-07 § 2, 2015; Ord. 2014-43 §§ 6, 7, 2014; Ord. 88-010 § 2, 1988. 2004 Code § 18.54.040.)