HomeMy WebLinkAboutRes2019-021 Sponsored by: Applicant
CITY OF SEWARD,ALASKA
PLANNING AND ZONING COMMISSION
RESOLUTION NO. 2019-021
A RESOLUTION OF THE SEWARD PLANNING AND ZONING
COMMISSION, GRANTING A VARIANCE FROM SEWARD CITY
CODE 15.10.220 DEVELOPMENT REQUIREMENTS TO REED AND
KELLEY WILEY LANE, PERMITTING AN EXCEPTION TO THE
ZONING CODE TO ALLOW STRUCTURE WITHIN THE 5 FOOT
SOUTH SIDE SETBACK ON LOT 27, BLOCK 27, ORIGINAL TOWN
SITE SEWARD, 512 FIRST AVENUE, WITHIN THE SINGLE FAMILY
RESIDENTIAL (R1) ZONING DISTRICT
WHEREAS,on or about November 5, 2019 Reed and Kelly Lane applied for a zoning
variance from Seward Code §15.10.222 Development Requirement to allow the placement of a
roof within the 5' minimum side yard setback development requirement along the south lot line
of Lot 27, Block 27, Original Townsite,more commonly known as 512 First Avenue; and
WHEREAS,the applicant satisfied the hearing notice requirements of§ 15.01.040(a):
and
WHEREAS,the Community Development Department reviewed the application and
prepared an Planning and Zoning Agenda Statement that was distributed to the applicant and
commissioners in advance of the hearing; and
WHEREAS, on December 3,2019,the Planning and Zoning Commission held the
required public hearing on the variance application;
NOW,THEREFORE,BE IT RESOLVED by the Seward Planning and Zoning
Commission:
Section 1. Findings of Fact. According to Seward City Code § 15.10.325(d),the
Commission shall establish a finding that all of the following conditions have been found to exist
prior to issuing a variance permit.
1. The proposed action must be consistent with all of the general conditions required
for a conditional use permit.
General use conditions required for a conditional use permit are partially satisfied, but
granting the variance would authorize significant deviations from generally accepted
zoning and planning principles contained in the code.
Seward Planning and Zoning Commission
Resolution 2019-21
Page 2 of 6
a. The proposed use is consistent with the purpose of this chapter and the
purpose of the zoning district.
This condition is partially satisfied.
Development Requirements: Lot 27 has nonconforming status. It is the express intent of
the chapter"to eliminate the nonconformities as rapidly as the law permits. It is further
the intent of this chapter that nonconformities shall not be enlarged upon, expanded or
extended,nor used as grounds for adding other structures or uses prohibited elsewhere in
the same district."The proposed modification to the nonconforming structure would
enlarge the nonconformity, in direct conflict with the purpose of the chapter and the
zoning district.
Parking: Seward City Code 15.10.215 requires that single-family dwellings have two
parking spaces per dwelling unit. Lot 27 has sufficient off-road parking for two vehicles.
This requirement,of particular importance in the downtown area, is satisfied.
Floodplain status: This property is not located in a flood hazard area.
b. The value of adjoining property will not be significantly impaired.
It is uncertain if this condition is satisfied, but the circumstances mitigate its relevance.
Lot 26 is the adjoining property where the value could potentially be impaired. However,
applicant owns both Lots 26 and 27 and would therefore incur the burden of any such
loss,to which applicant presumably does not object. Accordingly,the Commission
proceeds as though this condition were fully satisfied.
c. The proposed use is in harmony with the Seward Comprehensive Plan.
It is uncertain if this condition is satisfied. The Plan expresses a goal of developing
reasonably priced housing within Seward. This variance relates to that goal, but it is
difficult to say whether it furthers or inhibits the goal. On the one hand, it could be
viewed as improving the present availability of housing on Lot 27. On the other,
continuing a nonconforming use could be viewed as delaying the development of
superior,conforming housing on Lot 27 or inhibiting the development of quality housing
on Lot 26. Owing to the uncertainty, little weight is given to this factor in reaching the
conclusion that the request must be denied.
d. Public services and facilities are adequate to serve the proposed site.
This condition is satisfied. Adequate water, sewer, and power are available to the
property,as well as adequate police, fire, and solid waste service. The enjoyment of this
variance would not require any change or increase to the use of public water, sewer,or
power utilities.
Seward Planning and Zoning Commission
Resolution 2019-21
Page 3 of 6
e. The proposed use will not be harmful to the public safety, health or welfare.
This condition is not satisfied. Deputy Fire Chief Crites expressed concern that reducing
the potential space between adjacent structures would interfere with emergency response
by precluding the placement of ladders and would increase the risk of fire in one structure
spreading to the adjacent structure.
As explained by Building Inspector Nilsson,to inhibit the spread of fire,the 2012
International Residential Code, adopted by the City by reference, requires a minimum fire
separation distance of greater than 5' for exterior walls that are not fire resistance rated
and a 2' separation from the lot line for any overhangs.
f. Any and all specific conditions deemed necessary by the commission to fulfill
the above-mentioned conditions shall be met by the applicant. These may
include but are not limited to measures relative to access,screening,site
development, building design,operation of the use and other similar aspects
to the proposed use.
This condition is not directly applicable.
2. Special conditions or circumstances exist which are peculiar to the land or
structures involved and which are not applicable to other lands and structures in
the same district.
The applicant provided the following statement as explanation of the special conditions
of circumstances justifying the requested variance.
It is unknown whether or not past earthquakes shifted the 80+year-old-
home into the setback or if the home existed in the setback prior to the city
creating the code/ordinances/plat, etc. that make this home an illegal,
nonconforming property today.
The Commission assumes that the structure(at least prior to the applicant's 2019
modification of it) is a lawful nonconforming structure. Prior to the 2019 modification for
which the variance is sought,the structure did not constitute a violation of the zoning
code nor was a variance required to maintain the structure.
Seward City Code § 15.10.315, which governs nonconformities, makes clear that a
lawful,pre-existing nonconforming structure cannot serve as the basis for requesting a
variance that would increase the conformity. "Nonconforming structures are subject to
the following restrictions:A nonconforming structure may not be enlarged or altered in a
Seward Planning and Zoning Commission
Resolution 2019-21
Page 4 of 6
way which increases its nonconformity".' The owners of a property containing a
nonconforming structure may maintain the structure in conformity with the code,2 but
they may not increase the nonconformity.3
It is the intent of this chapter to permit these nonconformities to continue until they are
removed, but not to encourage their perpetuation,and to eliminate the nonconformities as
rapidly as the law permits. It is further the intent of this chapter that nonconformities shall
not be enlarged upon, expanded or extended, nor used as grounds for adding other
structures or uses prohibited elsewhere in the same district.4
Given the codified intent of the zoning code and the express prohibition on increasing the
scope of a nonconforming structure's nonconformity, nonconforming status cannot
constitute"special conditions or circumstances peculiar to the land or structures involved
and which are not applicable to other lands and structures in the same district"that would
merit a variance. Granting a variance on such basis would violate the express intent of the
code.
Moreover, the applicant has not shown that the structure cannot be adequately maintained
. without increasing the nonconformity and the commission is prohibited from granting a
variance on the basis of financial hardship or inconvenience.
3. The special conditions and circumstances were not cause by actions of the applicant.
To the extent the property's nonconforming status is asserted as the special condition or
circumstance causing the need for the variance, nonconforming status was not caused by
the applicant. But nonconforming status cannot serve as the basis for granting a variance
that would authorize an increase in the nonconformity.
To the extent the applicant asserts the prior completion of the proposed work as a special
condition or circumstance,this was caused by the applicant.
Because this these findings concludes that the applicant did not state special conditions
and circumstances that can be validly considered, relatively little weight is given to the
applicant's responsibility for the conditions.
' §15.10.315(0(1).
2 See §15.10.315(f)(2)-(4).
3 §15.10.315(f)(1).
4 §15.10.315(a).
Seward Planning and Zoning Commission
Resolution 2019-21
Page 5 of 6
4. Financial hardship or inconvenience shall not be a reason for granting variance.
Any loss of property value that may have occurred in the absence of roof repair work is
not considered because(i)the applicant has not shown that the roof could not be
adequately repaired without increasing the nonconformity, and because(ii) § 15.10.315
contemplates that such loss may occur in the case of nonconforming structures,with
subsection(f) setting the standards by which those potential losses may be mitigated.
Moreover, Commission expressly avoids any consideration of expense the applicant
incurred by performing the proposed work prior to obtaining a building permit or that
such expense may be wasted if the violation is ordered to be abated. Similarly, potential
costs of abating the violation(s)are not considered because this criteria disclaims such
consideration and because the applicant ought not be benefitted by sums expended in
violation of the City's building and zoning codes.
(Nor does the Commission take into account that the applicant proceeded with
construction work without a valid building permit and may have continued to work even
after a stop-work order issued. These facts, if proven, may be relevant to zoning code
IPviolation enforcement and penalties,but are not among the criteria to be considered when
r■.� evaluating a variance request.)
5. Other nonconforming land uses or structures within the district shall not be
considered as grounds for granting a variance.
The Commission has not considered other nonconformities within the district.
6. The requested variance is the minimum variance necessary to permit the reasonable
use of the property.
This condition has not been satisfied. The applicant has not shown the reasonable use of
the property is not possible without the variance and superficially have not shown that the
roof of the nonconforming structure cannot be adequately repaired without increasing the
nonconformity.
7. The requested variance will not permit a land use in a district where the use is
prohibited.
This condition is satisfied. The requested variance does change any use.
Seward Planning and Zoning Commission
Resolution 2019-21
Page 6 of 6
Section 2. Effective Date. In accordance with Seward City Code § 15.10.325(e),
unless rescinded, amended or appealed any resolution adopted under this chapter automatically
becomes effective ten days after passage and posting.
PASSED AND APPROVED by the Seward Planning and Zoning Commission this 3rd
day of December 2019.
THE CITY OF SEWARD ALASKA
Cindy . cklund, Chair
AYES: Seese,Ambrosiani, Fleming, Ecklund
NOES: Hatfield, Swann, Charbonneau
ABSENT
ABSTAIN
ATTEST
0-dea
renda Ballou MC,
City Clerk
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