A. ROLL CALL ZONING BOARD OF EXAMINERS AND APPEALS Assembly Chambers Z.J. Loussac Library 3600 Denali Street Anchorage, Alaska MINUTES OF September 13, 2018 6:30 PM Present Excused Staff Stephanie Aicher Ellen McKay Ken Ayers Tanya Hickok Dave Hale Dale Smythe Lisa Doehl Francis McLaughlin Collin Hodges Dave Whitfield B. MINUTES 1. Thursday, August 9, 2018 BOARD MEMBER MCKAY moved to approve the minutes. BOARD MEMBER AYERS seconded. Aicher, McKay, Ayers, Hickok, Hale, Smythe C. SPECIAL ORDER OF BUSINESS / EXECUTIVE SESSIONS 1. Disclosures BOARD MEMBER SMYTHE disclosed in Case 2018-0080 that he has worked with the petitioner s representative, Farpoint Land Services, on unrelated projects. He has no financial or personal interest in this case and can remain impartial. BOARD MEMBER AICHER moved to direct Board Member Smythe to participate in Case 2018-0080. BOARD MEMBER AYERS seconded.
September 13, 2018 Page 2 of 10 ABSTAIN: Aicher, McKay, Ayers, Hickok, Hale Smythe BOARD MEMBER AICHER moved to reorder the agenda to hear Item C(2) Annual Election of Officers after the public hearings. BOARD MEMBER HICKOK seconded. Aicher, McKay, Ayers, Hickok, Hale, Smythe 2. Annual Election of Officers Agenda Item C(2) was moved to follow the public hearings. D. CONSENT AGENDA - 1. Resolutions for Approval 2. Other E. APPEARANCE REQUEST - F. UNFINISHED BUSINESS AND ACTIONS OF PUBLIC HEARINGS - G. REGULAR AGENDA - 1. Resolutions for Approval 2. Other H. PUBLIC HEARINGS 1. CASE: 2018-0080 (FDM) PETITIONER: James and Kari Pool REQUEST: Dimensional Variance from AMC 21.06.020 to permit a single-family residence to encroach into the primary front yard setback in the R-5 (Low-Density Residential) District.
September 13, 2018 Page 3 of 10 FRANCIS MCLAUGHLIN presented the staff report and recommendations on behalf of the Municipality's Planning Department. MARC EID with Farpoint Land Services represented the petitioner. JAMES POOL, petitioner, was also present and assisted with the presentation and responding to questions from the Board. The Board discussed construction of the building under the approved permit, but not according to the plot plan. They also discussed not having the property inspected and surveyed as a requirement of the plot plan. CHAIR HALE opened the hearing to public testimony. The following individuals testified: ALBERT YOUNG GERALD ALLSUP AMY CRUTCHFIELD MR. EID provided rebuttal testimony. CHAIR HALE closed the public hearing. BOARD MEMBER AYERS moved in Case 2018-0080 to approve the variance request from AMC Table 21.06-1: Dimensional Standards, subject to staff's conditions listed on page 5 of the staff report. BOARD MEMBER MCKAY seconded. BOARD MEMBER AYERS stated that he does not intend to support the motion as he cannot get past the fact that this is a very unfortunate incident. He thinks the building designer, the surveyor, and the builder that were involved should have caught this. Meeting the standards have not been demonstrated and his findings are as follows: 1) This standard is not met as staff cited in the staff report. 2) This standard is not met. There are no physical circumstances of the property itself that has been demonstrated. 3) This standard is not met. The hardship, while not self-imposed necessarily by the homeowner, was by the people the homeowner had hired to perform this work. 4) This standard is met. Given the character of the neighborhood, it does not seem that this would be a detriment or injurious to the neighborhood. 5) This standard is met. It is a very low-density neighborhood and the use does not alter the character of the zoning district. 6) This standard is met. It does not adversely affect the health, safety, and welfare of the people of the Municipality. 7) This standard is not applicable.
September 13, 2018 Page 4 of 10 8) This standard is not met. The property could have been constructed as was demonstrated on the plot plan within conformance with the setbacks. Unfortunately, several people let the homeowner down in this situation. BOARD MEMBER MCKAY agreed with staff that all eight standards are not met. At this point, she will not be supporting the motion and addressed the standards. 1) She could be persuaded that with the fact that this lot abuts municipal property, which includes stream setbacks, does create an extraordinary physical circumstance that is not the same with most of the neighbors. 2) The finding for Standard 1 would also apply to this standard. 3) The hardship is self-imposed and she could be persuaded that there are special conditions because of the municipal property. 4) This standard is met. 5) She is having trouble with this standard. The variance, if granted, does not change the character of the zoning district where the property is located and does not permit a use not otherwise permitted in the district in which the property lies. She does not believe it is in keeping with the intent of the code. It sets a precedent that, if granted, it has the affect of nullifying the intent and purpose of the code. Anybody could build whatever they wanted and come before the Board saying, Oops, I did not know and I am sorry. That just makes the code a mockery, but with more discussion she could possibly be dissuaded from that. 6) This standard is met. 7) This standard is met. 8) Again, it is hard to say that the variance, if granted, is the minimum variance that would make possible a reasonable use of the land because a significant portion of their house would have to be taken down. BOARD MEMBER AICHER noted that these types of cases are the most difficult because the violations have already occurred at a great expense. These cases also are incredibly difficult because, in these instances, it truly is through no fault of the homeowner as they have relied on professionals, and the professionals have fallen short. Sometimes, the process set up by the Municipality to attempt to catch some of these instances also falls short. It is in light of these types of cases that makes fitting the strict application of these standards particularly difficult, but in her opinion, it is strict application of the standards that would do more of an injustice than following the code to the exact letter of the law. 1) She urged the Board to consider that Standard 1 is met and that there are existing and exceptional extraordinary physical circumstances of the property, such that Campbell Creek is directly across the street and all of the lots across and surrounding the property are owned by the Municipality, and have wetlands. The lot is surrounded on two sides by a street and there is a private well located on a back portion of the southeast corner that would surely affect some buildable area on the lot.
September 13, 2018 Page 5 of 10 2) If the Board agrees that there are exceptional or extraordinary physical circumstances on this lot, then she thinks they would agree that this standard is met. Because of those circumstances, strict application of this would create an undue hardship on the property and deprive them of rights commonly enjoyed by others. We all have lived through Alaskan winters and the Board has previously found that garages are a common right enjoyed by many. This garage, while it does not seem to be overly large or obnoxious, is not a garage that houses motorhomes and looks to be a standard twocar garage, which is commonly enjoyed by many of us. 3) This standard is met. While the petitioner is, technically, the lot owner and did engage with professionals to survey the lot, design, and submit applications, she just does not think, in this instance, holding the individual owner responsible for the mistakes of others would be fair and equitable. 4) She concurred with staff that this standard is met. 5) While appreciating Board Member McKay s comments with regard to this standard, the Board always runs a risk when granting variances that people will not take the code seriously and construct something, and ask for forgiveness later of what is clearly in violation. Especially something like this when the request is not for an 8-inch or a 5-foot variance, but pretty much for the entire width. She did agree that this standard is met for the reasons staff articulated. 6) This standard is met. 7) This standard is met. 8) This standard is met in light of the current condition of the lot. This is the minimum variance that will make possible a reasonable use of the land. Subject to the recommendations by staff as noted on page 5, she does intend to support the motion. BOARD MEMBER AYERS pointed out that if the Board does approve this variance and help out the homeowner, which is the one that is being injured here, we are granting the professionals that are responsible for this a free pass. He does not believe that is the right thing to do and would love to find a way to help the homeowner, and make sure the people that made these mistakes take responsibility for them. It would not be easy, but there is a potential solution to this by vacating a portion of Wakefield Drive right-of-way and have it dedicated on the other side of the street, on unused lands, which would not affect any of the existing improvements within the right-of-way, but would make this a conforming lot. It would be in the petitioner s and the professionals involved best interest to pursue such a solution rather than have a rubber-stamped variance that is going to create problems for this Board down the line. CHAIR HALE asked Mr. Ayers for clarification that he was suggesting the Board postpone this and allow the petitioner to seek a right-of-way vacation, if plausible. BOARD MEMBER AYERS stated that whether or not the petitioner would want to pursue that type of a solution or pursue someone s insurance policies, the case is before this Board and we are obligated to vote on it.
September 13, 2018 Page 6 of 10 BOARD MEMBER SMYTHE added that the process of building design construction within the Municipality is costly and takes time. As a professional, he is disappointed in the mistakes that have been made because of the impact that it has had to a homeowner. It is much different when these things happen to an entity with the capacity to deal with the cost of the mistakes, but this is not the case here. He appreciated Board Member Ayers options discussion and he does not believe that granting this variance would in any way allow a rubber stamp. It is not providing the due notice to the professionals that failed and he does not know that is the job of this Board. The real element in his thought has been the intent of the setbacks and what they are supposed to produce, and the impact if this variance was not granted. It does not help that street specifically and it does not help the city in residential development and in what we are attempting to do. He intends to support this for larger reasons. BOARD MEMBER HICKOK appreciated all of the discussion and tended to agree with Board Member McKay s findings. This is an exceptional case as far as physical circumstances and she recognized Board Member Ayers thoughts on having the professionals be responsible for their errors. We all, in our professions, see this consistently on some sort of level. As far as rubber stamping, she wished the city could do more to make sure that plot plan errors do not proceed because a lot of what we see here are plot plan errors, which is very disheartening. However, she did not believe the error was done intentionally by the homeowner and it is quite a large hardship for a residential homeowner to bear the burden. She will be supporting the motion. CHAIR HALE noted that professionals are supposed to know the whole process of licensure in order to protect the public. He can kind of see that it is an extraordinary lot because of its location. If the variance is granted, it is not affecting anyone else in the community and the whole point, to him, of having all of these setbacks and easements is to allow us to enjoy our property, but also so the neighbors can enjoy their property too. It is an extenuating circumstance and is an extraordinary street in that it is not typical. If a variance this large were granted on a regular street it would most likely affect your neighbor and that cannot be done, which is the whole point of it. He can see his way to support the motion, although he is reluctant to let this go because, basically, if the surveyor would have done his job correctly the petitioner would not be here. The petitioner hired a professional and thought they were doing a good job, but they did not. Aicher, McKay, Hickok, Hale, Smythe Ayers 2. CASE: 2018-0088 (SMO/CH) PETITIONER: David and Judith Bich REQUEST: Dimensional Variance from AMC Table 21.06-1: Dimensional Standards Residential Districts to allow a previously constructed, demolished deck and garage to be rebuilt in the side setback. COLLIN HODGES presented the staff report and recommendations on behalf of the Municipality's Planning Department.
September 13, 2018 Page 7 of 10 DAN DUNBAR with Aipaq Construction represented the petitioner. The Board discussed with staff the building permit process for demolition and if the petitioner was made aware that the willful destruction and reconstruction of a legally nonconforming structure was not permitted even though it was in disrepair, except in conformance with the code. They also discussed the possibility of a dedicated 5-foot No-Build Easement on the adjacent property that is also owned by the petitioner in lieu of a variance. CHAIR HALE opened the hearing to public testimony. The following individual testified: BOB HUMPHREY There was no rebuttal testimony. CHAIR HALE closed the public hearing. BOARD MEMBER HICKOK moved to approve Case 2018-0088, subject to Conditions 1 and 2 as noted on page 5 of the staff report with the addition of Condition 3 that the petitioner enter into a 5-foot No-Build Easement on the adjoining lot known as Block 6, Lot 8, Turpin Subdivision, and recorded with the State of Alaska District Recorder's Office. BOARD MEMBER AICHER seconded. BOARD MEMBER HICKOK believed that adding the additional condition as a requirement will fulfill the need to have the setbacks between the two lots. With that addition, the variance, in itself, would not be required any longer. BOARD MEMBER AICHER asked for clarification that the Board would still have to address the standards in order to grant the variance even though the added condition would negate the need. MR. WHITFIELD explained that this does not negate the need for the variance, the variance will still exist. All eight standards, especially those that staff had determined were not met will need to be included in the findings. BOARD MEMBER HICKOK addressed the following standards: 1) There exists exceptional or extraordinary physical circumstances of the subject property such as, but not limited to, streams, wetlands, or slope, and those circumstances are not applicable to other land in the same district. This standard is met since this property was a nonconforming property that existed prior to the ownership of the house. 2) This also applies because of the nonconforming standards, which was a physical circumstance prior to the purchase of the property. 3) This is not self-imposed. The petitioner did try to apply for an application for demolition as well as reconstruction, which was their full intent. 4) If the variance was granted, the building would not be able to be constructed as it previously was.
September 13, 2018 Page 8 of 10 5 7) These standards are all met as noted by staff. 8) It is the minimum variance thus required with the addition of the condition that will be 10-foot, which would then meet the minimum standards. BOARD MEMBER AICHER concurred with Board Member Hickok s findings. Aicher, McKay, Ayers, Hickok, Hale, Smythe Item C(2) was reordered from the beginning of the agenda. C. SPECIAL ORDER OF BUSINESS / EXECUTIVE SESSIONS 2. Annual Election of Officers BOARD MEMBER AICHER moved to nominate Board Member McKay to serve as Chair. BOARD MEMBER HICKOK seconded. Aicher, McKay, Ayers, Hickok, Hale, Smythe BOARD MEMBER MCKAY moved to nominate Board Member Hickok to serve as Vice Chair. BOARD MEMBER AICHER seconded. ABSTAIN: Aicher, McKay, Ayers, Hale, Smythe Hickok BOARD MEMBER AICHER moved to nominate Board Member Smythe to serve as Parliamentarian. BOARD MEMBER AYERS seconded. ABSTAIN: Aicher, McKay, Ayers, Hickok, Hale Smythe I. REPORTS - 1. Chair
September 13, 2018 Page 9 of 10 2. Secretary 3. Committee J. BOARD MEMBERS' COMMENTS CHAIR HALE informed the Board of the upcoming meetings in October and November. BOARD MEMBER AICHER noted that the standards in one of the cases tonight used the alphabet and the other case listed them numerically. MR. WHITFIELD apologized noting that the old code format was numerical, but the new code uses the alphabet. He will ensure the future staff reports will use the alphabet when listing the standards. BOARD MEMBER AICHER also asked if it would be possible when staff is recommending a variance for approval to assist the Board with some of the findings, particularly the first standard. This Board always struggles with looking for exceptional or extraordinary physical circumstances and it would be helpful if staff could note things such as wetlands, streams, and lots surrounded by roads. MR. WHITFIELD explained that while staff may believe it is reasonable to grant a variance, when reviewing the standards against the variance application we have to determine whether or not the standard is met. If there are no extraordinary physical circumstances of that subject property, staff must find that the standard is not met and sometimes that is difficult. As much as staff would like to assist the Board in their findings, we are obligated to speak only to the standards whether we believe a variance should be granted or not. BOARD MEMBER AICHER pointed out that, during her years serving on this Board, there are a handful of surveyors whose work has repeatedly been the reason why petitioners have had to come before us. She asked if there was a list we could help facilitate or a professional organization or board that we could report these surveyors. CHAIR HALE replied, yes, there is a licensing board and if these people are doing something wrong professionally that includes gross neglect or misconduct, it can be reported to the board investigator. However, if it is a process through the Municipality and is not a licensing issue then what do you do, except shore up the process of the Municipality. With regard to tonight s case, a plot plan was accepted from that surveyor by the Municipality even though their own standards stated that they cannot. It was noted on the plot plan that there was no field survey performed and it was stamped, so what was done professionally? The process should have stopped it, but did not. BOARD MEMBER AYERS added that it was not just the surveyor not doing his job because the building designer knew that the building existed and could look at the plot plan and know that it was not right. This Board may have just set a precedent for 18-foot setback encroachment variance requests. CHAIR HALE expressed that he is hoping staff will assist in following up that the Permit Department is reviewing these things per their department s handout. MR. WHITFIELD agreed that the Permit Department should be adhering to their own policies, but the Planning Department is a different entity and we do not get to review every building permit nor do we have the ability to ensure what is being requested. MR. WHITFIELD noted that the Board is in need of members and urged them to contact anyone that might be interested in filling these vacancies.
September 13, 2018 Page 10 of 10 K. ADJOURNMENT BOARD MEMBER AICHER moved to adjourn. BOARD MEMBER HICKOK seconded. Aicher, McKay, Ayers, Hickok, Hale, Smythe The meeting adjourned at 8:29 p.m.