MEMORANDUM

TO: Timothy Navarre, Assembly President

Members, Kenai Peninsula Borough Assembly

THRU: Dale Bagley, Mayor

FROM: Colette Thompson, Borough Attorney

DATE: October 12, 2001

SUBJECT: Ordinance 2001-32 amending the code regarding variances

First, the assembly requested an alternative title to Ordinance 2002-32. We suggest: An Ordinance Amending KPB 21.05.010 to Allow Variances from Land Use Regulations to the Same Extent as is Allowed by State Statute.

A variance is a mechanism used in unusual individualized situations where land use regulations result in more stringent burdens being placed on some parcels of land than on others. Variances are intended to serve as a safety valve for landholders who would suffer special hardships from the literal application of a particular land use restriction. However, variances may not be used to circumvent the overall intent of land use regulations. For this reason, they may not be used to allow a type of land use that is expressly prohibited. Instead, they are used to allow limited exceptions to ancillary restrictions contained in land use regulations.

Ordinance 2001-32 would give the planning commission discretion to authorize variances from land use regulations to the same extent currently allowed by statute. Attached for your reference is a copy of the entire current chapter in the borough code governing variances.

Alaska Statute 29.40.040(b) provides:

(b) A variance from a land use regulation adopted under this section may not be granted if

(1) special conditions that require the variance are caused by the person seeking the variance;

(2) the variance will permit a land use in a district in which that use is prohibited; or

(3) the variance is sought solely to relieve pecuniary hardship or inconvenience.

Paragraph (b)(2) is significant in that it prohibits a variance to allow uses that would otherwise be prohibited. For example, in our local option zoning districts, a variance could not be used to allow an industrial use in a residential area as that is a prohibited use. However, under the state statute and our current code, "area" variances are allowed. Examples of "area" variances include modification of setback requirements, height requirements, density limitations, and side and rear yard line restrictions.

State statutes and the proposed amendment would allow variances from other restrictions besides area restrictions. Examples of other restrictions that this amendment would authorize variances from would include:

� Drainage ways. Under the existing local option zoning districts, existing natural drainage ways must be retained. Circumstances may arise, however, that would make this requirement unnecessarily burdensome for a property owner on a particular parcel where an alternative drainage way could be installed that would not interfere with surrounding property uses and would be in compliance with applicable state and federal law.

� The sign limitation of no greater than four feet square may be slightly modified if the applicable standards are met.

� The prohibition against outside storage or display of anything related to home occupations may be subject to a variance. For example, a commercial greenhouse may obtain a variance to display items outside of the greenhouse.

� One standard prohibits changes in the outside appearance of a building or parcel or any other visible evidence of conduct of the home occupation. A strict imposition of this requirement may impose a hardship on certain allowed home occupations, and a variance may be appropriate to allow a small modification of this to avoid undue hardship on the owner. For example, again, a greenhouse must be constructed of material capable of transmitting sunlight, which would be visible to the outside neighborhood.

� The home occupation standards prohibit more than 15 vehicle trips per day on average to be drawn to the parcel as a result of the home occupation. Circumstances may be such that the planning commission would authorize a variance from this requirement where it meets the applicable standards and does not harm the surrounding neighborhood.

Finally, nothing in the proposed amendment would change the requirement that a variance meet the stringent standards in KPB 21.05.040.