CITY OF HOMER  

HOMER, ALASKA

City Manager

ORDINANCE 03-06

 

 

AN ORDINANCE AMENDING HOMER ZONING CODE CHAPTER 21.62 VARIANCES BY DELETING 21.62.015 EXCEPTION, 21.32.180 VARIANCE EXCEPTION AND BY AMENDING 21.32.540 VARIANCE.

 

                WHEREAS , AS 29.40.040 limits variances as follows:

 

(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; and      

            WHEREAS, Homer City Code 21.62.015 Variance Exception, in a manner unique in Alaska, allows variances not allowed in Alaska Statutes; and

 

            WHEREAS, the Homer City Code is silent on the conditions and application of Variance Exceptions, creating a potential for inappropriate granting of variances; and

 

            WHEREAS, a Variance Exception may be granted because of conditions caused by the applicant, contrary to state law; and

 

            WHEREAS, Variance Exceptions may be used to grant a land use in a district where it is otherwise prohibited, contrary to state law; and

 

            WHEREAS, Variance Exceptions may be granted solely to relieve pecuniary hardship or inconvenience, contrary to state law; and

 

            WHEREAS, Variance Exceptions may be incompatible in design or scale with other permitted uses on similar adjacent land, contrary to the Homer Comprehensive Plan; and

 

            WHEREAS, Variance Exceptions may be granted which would burden the community with increased insurance and emergency service costs; and

 

            WHEREAS, Variance Exceptions subjected to legal challenge have no certainty of withstanding legal review, and may greatly cost the City of Homer and cause delay, expense and uncertainty to developers; and

 

            WHEREAS, if the Zoning Code of the City of Homer is unduly restrictive, the appropriate response is to amend the code so that it applies in a fair and consistent manner to all properties;

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            NOW, THEREFORE, ,THE CITY OF HOMER HEREBY ORDAINS:

 

            Section 1.        Section  21.62 VARIANCES of the Homer City Code, which sets forth the intent and conditions for granting variances, is hereby amended to read as follows:

 

Chapter 21.62

VARIANCES

Sections:

21.62.010 Intent

21.62.015 Exception.

21.62.020 Conditions precedent to granting a variance.

21.62.030 Application for a variance.

21.62.040 Procedures.

21.62.010 Intent. A variance may be granted to provide relief when a literal enforcement of chapters 21.28 through 21.70 would deprive a property owner of the reasonable use of his real property.

21.62.015 Exception. A variance exception is a form of variance granted:

a. To a public utility or public service organization by virtue of their special public status in the community;

b. For some public noncommercial use, regardless of to whom granted;

c. To anyone for the temporary use of a building or premises for nonconforming uses, provided that such structure or use is of a temporary nature and is promotive of or incidental to the establishment or development of a use that conforms to the regulations for the use district in which it is located. Such permit shall be granted in the form of a temporary and revocable permit for a period of not more than one year

21.62.020 Conditions precedent to granting variance.

a.         All of the following conditions shall exist before a variance may be granted:

1. A literal interpretation of the provisions of chapters 21.28 through 21.70 would deprive the applicant of rights commonly enjoyed by other properties in the same district;

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City of Homer

2. Special conditions and 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;

3. The special conditions and circumstances have not been caused by actions of the applicant.

b.         Financial hardship or inconvenience shall not be reason for granting a variance.

c.         Other nonconforming land use or structures within the district shall not be considered grounds for granting a variance.

d.         A variance shall be the minimum variance necessary to permit the reasonable use of the land or structure.

e.         A variance shall not be granted which will permit a land use in a district in which that use is otherwise prohibited.

21.62.030 Application for a variance. Application for a variance shall be filed with the City Manager and the application shall include, but is not limited to, the following:

a.         All of the information required for a conditional use permit;

b.         A precise description of the variance requested, including the section, paragraph and sentence of Chapters 21.28 through 21.70 from which the applicant wishes to deviate;

c.         A written item-by-item response to all of the conditions specified in 21.62.020.

21.62.040 Procedures.   Procedures shall be as specified in 21.61.040.  

Section 2.  Except from Chapter 21.32 Definitions

Chapter 21.32 Definitions is hereby amended to delete:

21.32.180  Exception.  “Exception” means a form of variance granted:

            a.         To a public utility or public service organization by virtue of their special public status in the community;

            b.         For some public noncommercial use, regardless of to whom granted;

            c.         To anyone for the temporary use of a building or premises for nonconforming use, provided that such structure or use is of a temporary nature and is promotive of or incidental to the establishment or development of a use that conforms to the regulations for the use district in which it

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City of Homer

is located.  Such permit shall be granted in the form of a temporary and revocable permit for a period of not more than one year.

Section 3.  Except from Chapter 21.32 Definitions 

Chapter 21.32 Definitions, Section 540 Variance is hereby amended to read:

 “Variance” means any deviation from the requirement of the Zoning ordinance codified in Chapters 21.28 through 21.70, but limited to the one instance in question and to no more than one building or improvement at a time and then subject to the conditions and uses authorized by the Planning Commission.  Example: A building authorized as a variance for use as a grocery store in a residential zone could not later be used for some other purpose even though that purpose was permissible in a normal commercial zone.  Variances are nonprecedent-setting and are authorized where, owing to special conditions, a literal enforcement of the provisions of this chapter and Chapters 21.28 through 21.70 would result in unnecessary hardship and so that the spirit of the chapters shall be observed and substantial justice done. authorized pursuant to chapter 21.62.

 

Section 4.       This ordinance is of a permanent and general character and shall be included in the City code.   

 

 

ENACTED BY THE CITY COUNCIL OF THE CITY OF HOMER, ALASKA, this ____ day of ___________, 2003.

 

 

                                                                        CITY OF HOMER

 

 

                                                                                                                                               

                                                                                                Jack Cushing, Mayor

ATTEST

 

 

                                                           

Mary L. Calhoun, CMC, City Clerk

 

Fiscal Note:     

 

AYES:

NOES:

ABSTAIN:

ABSENT:

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First Reading: 01/13/03

Public Hearing: 01/27/03

Second Reading: 02/10/03

Effective Date:

Reviewed and approved as to form:

 

 

                                                                                                                                               

Ron Drathman, City Manager                                       Gordon J Tans, City Attorney